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2013 DIGILAW 1352 (RAJ)

Hukma @ Hukmichand v. State of Rajasthan

2013-07-25

GOPAL KRISHAN VYAS, VIJAY BISHNOI

body2013
JUDGMENT 1. - Instant jail appeal has been filed by the convict- appellant through the Superintendent, Central Jail, Udaipur to challenge the judgment and order of conviction and sentence dated 13.06.2005 passed by the Addl. Sessions Judge, Nathdwara (District Rajsamand) in Sessions Case No. 5/2005, whereby, the learned trial Judge convicted the appellant for committing offences under Sections 302 and 201, I.P.C. and sentenced him to undergo life imprisonment along with fine of Rs. 2,000/- and, in default of payment of fine, to further undergo two years' simple imprisonment in respect of offence under Section 302, I.P.C. and awarded sentence of rigorous imprisonment for a term of three years and fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months' simple imprisonment. 2. As per facts of the case, a complaint was filed by complainant Shyam Lal at Police Station Khamnaur on 30.11.2004 at about 3.15 P.M., in which, it is stated that on 30.11.2004 at about 1.30 P.M. when he was at his residence one Daula Gameti came and informed him that house of Hukma (appellant herein) is closed and locked from outside but upon opening the lock and door when he entered in the house of Hukma, upon inspection, dead body of Dakhudi, wife of Hukma, was lying there. Upon said information received from Daula, the complainant along with Daula came to the house of Hukma and inspect the body and found several injuries on the face, hands and legs of the deceased. As per the complainant, upon enquiry being made, it was found that in the night Hukma and deceased quarrelled and Hukma beat her and due to the injuries sustained upon her body Dakhudi died. Thereafter, Hukma while putting lock upon the house went away. 3. Upon the aforesaid information, the police registered the case and investigation was commenced by the investigating officer of the Police Station Khamnaur. After thorough investigation, the accused-appellant was arrested vide Ex.-P/21 on 01.12.2004. After arrest an information was given by the accused-appellant under Section 27 of the Evidence Act and, in pursuance of those information, the clothes viz., lehanga and blouse of the deceased stained with blood were recovered by the police vide Ex.- P/8 on 03.12.2004 and weapon "baisa" was recovered as per information of the accused-appellant on 04.12.2004 vide Ex.-P/9, upon which, human blood was found. The police sent all those articles to the FSL for examination, from where, report Ex.-P/25 was received. Postmortem upon the dead body of the deceased was conducted and vide report Ex.-P/10, injuries were found upon the body of the deceased Dakhudi. As per opinion of the Medical Board who conducted the postmortem the deceased died due to excessive hemorrhage from scalp and duration of death was also found within 24 to 36 hours. The postmortem report was given on 01.12.2004. 4. After investigation the police filed challan against the accused-appellant in the Court of Judl. Magistrate (First Class), Nathdwara from where the matter was committed to the Court of Addl. Sessions Judge, Nathdwara where the trial took place. 5. The trial Court after framing charge proceeded for trial and recorded statement of 17 prosecution witnesses and, thereafter, recorded statement of the accused- appellant under Section 313, Cr.P.C. In his statement recorded under Section 313, Cr.P.C. accused Hukma stated that he is innocent and he has been implicated in this case falsely whereas he was not present on the date of the occurrence. No evidence was however led by the accused in his defence at the trial. Thereafter, the matter was finally heard by the trial Court and vide impugned judgment/order dated 13.06.2005 the accused appellant was convicted and sentenced as indicated herein above for committing offences under Sections 302 and 201, I.P.C. 6. Learned counsel for the appellant submits that in this case there is no eye-witness and challan has been filed on the basis of circumstantial evidence, therefore, it cannot be said that prosecution has led any direct evidence for convicting the accused-appellant. It is also argued that the prosecution has concocted a false story because the clothes said to be recovered as per information given by the accused-appellant were already in the possession of the police before his arrest and, thereafter, a false memo with regard to information under Section 27 of the Evidence Act was prepared and the same clothes which were in possession of the police were shown to have been recovered at the instance of the accused-appellant. Therefore, the whole story is totally concocted one and the accused-appellant deserves to be acquitted from the charge levelled against him. 7. Therefore, the whole story is totally concocted one and the accused-appellant deserves to be acquitted from the charge levelled against him. 7. Learned amicus curiae vehemently argued that there was no motive with regard to committing the offence of murder of his own wife by the accused-appellant, so also, no evidence has been produced by the prosecution to prove the fact that there was any motive with the appellant to commit the offence of murder of his wife, therefore, the whole prosecution case is based upon unfounded evidence. 8. While inviting our attention towards the statement of P.W.-6 Chenki, mother of the deceased, it is submitted that the said witness categorically stated before the Court that the clothes of the deceased were taken off by her and other ladies of the family performed the ritual of covering sarees upon the dead body. Later on, the police falsely showed that those clothes were recovered at the instance of the accused-appellant. Therefore, the conviction of the appellant for offences under Sections 302 and 201, I.P.C. is totally unfounded. 9. It is also argued by the counsel for the appellant that the accused-appellant was not present at the time the occurrence took place; but, later on, he remained present during the investigation, therefore, the conduct of the accused-appellant itself speaks that he is innocent and has been falsely implicated in this case. Lastly, learned counsel for the appellant submits that story of quarrel in between husband and wife and allegation of beating is totally unfounded because there is no independent evidence on record to prove the said fact, therefore, the accused-appellant is entitled for acquittal on the ground that the prosecution has failed to prove its case beyond shadow of doubt for convicting the appellant under Section 302, I.P.C. 10. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that as per statements of P.W.-5 Heeralal, resident of the same village and P.W.-12 Gheesa, father of the accused-appellant, they stated in their statements that deceased Dakhudi and accused- appellant some time quarrelled with each other but the day on which Dakhudi died he was not present. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that as per statements of P.W.-5 Heeralal, resident of the same village and P.W.-12 Gheesa, father of the accused-appellant, they stated in their statements that deceased Dakhudi and accused- appellant some time quarrelled with each other but the day on which Dakhudi died he was not present. Similarly, P.W.-6 Chenki, mother of the deceased stated in her statement that her daughter was repeatedly complaining that the accused-appellant is regularly beating her and not providing proper food to eat, therefore, it cannot be said that there is no evidence on record to prove the fact that the relations in between husband and wife were cordial or peaceful. 11. Learned Public Prosecutor submits that blood stained clothes of the deceased and blood stained weapon "baisa" were recovered at the instance of the accused-appellant and the same were sent to the FSL for examination and, as per the report of the FSL, Udaipur, Ex.-25, human blood of AB group was present; meaning thereby, the clothes recovered at the instance of the accused-appellant and upon the weapon blood was found, therefore, it cannot be said that prosecution has not proved its case beyond reasonable doubt. 12. According to learned Public Prosecutor, the trial Court while accepting cogent evidence that prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence and recovery of blood stained clothes of the deceased as well as weapon of offence at the instance of the accused-appellant held the appellant guilty of committing the offence, therefore, there is no question of any interference in the finding given by the trial Court with regard to accepting the prosecution story. Learned Public Prosecutor vehemently urged that it is a case in which the wife was residing with the husband and her body was found dead in the house where husband and wife were living, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. Therefore, this appeal may be dismissed. 13. After hearing learned counsel for the parties, we have examined the entire evidence for the purpose of ascertaining the fact whether the trial Court has rightly convicted the accused-appellant or not. 14. Therefore, this appeal may be dismissed. 13. After hearing learned counsel for the parties, we have examined the entire evidence for the purpose of ascertaining the fact whether the trial Court has rightly convicted the accused-appellant or not. 14. First of all, it is admitted position of the case that in the house where the dead body of deceased Dakhudi was found husband and wife both were residing together. As per investigation and postmortem report 10 injuries were found upon the body of the deceased, out of which, one grievous and serious injury upon the head was found as per the postmortem report Ex.-P/6; meaning thereby, the conclusion of the trial Court with regard to death due to injuries sustained by the deceased is well proved by the prosecution. 15. We have scanned the evidence for connecting the accused-appellant with the crime and, for the said purpose, we have considered the arguments advanced by learned counsel for the appellant that the clothes which the deceased was wearing at the time of the occurrence took place were already taken away by the police. In our opinion, there is no strength in the argument of the learned counsel for the appellant because we have called for those clothes in the Court for examination and, today, we have examined the clothes in the Court itself. 16. In our considered opinion, there is no strength in the argument of learned counsel for the appellant with regard to the fact that the police had already taken away the clothes and falsely implicated the appellant while saying that the clothes were recovered at the instance of the accused-appellant. In this connection we have perused the photographs in which we found that the clothes which were recovered for analysis by the FSL were altogether different; meaning thereby, the clothes recovered at the instance of the accused-appellant are directly connecting the accused-appellant with the offence because those clothes were sent to the FSL for examination, in which, the FSL opined that the articles were stained with human blood. 17. In view of the above discussion, we are of the opinion that there is connecting evidence on record to prove the fact that the accused-appellant committed offences under Sections 302 and 201, I.P.C. 18. 17. In view of the above discussion, we are of the opinion that there is connecting evidence on record to prove the fact that the accused-appellant committed offences under Sections 302 and 201, I.P.C. 18. With regard to the second argument for alleged quarrel we are of the opinion that there are statements recorded during the trial which prove that accused- appellant was repeatedly beating the deceased for one or the other reason. In this regard, we have perused statements of P.W.-6 Chenki, P.W.-5 Heeralal and P.W.-12 Gheesa, in which, the fact that some time deceased and accused-appellant were quarrelling, therefore, it cannot be said that any illegality is committed by the trial Court while giving the finding with regard to the fact that the prosecution has proved its case beyond reasonable doubt. 19. In our opinion, there is sufficient circumstantial evidence on record against the accused-appellant to connect him with the crime. Therefore, in the opinion of this Court, no interference is called for in this jail appeal with the impugned judgment and order of conviction and sentence against the accused-appellant.In view of the above, we find no merit in this jail appeal and dismiss the same accordingly.Appeal dismissed. *******