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2013 DIGILAW 1782 (RAJ)

Hari Ram @ Hari Singh v. State of Rajasthan

2013-10-03

MOHAMMAD RAFIQ

body2013
Hon'ble RAFIQ, J.—This appeal has been filed by accused-appellants Hari Ram @Hari Singh and Harchand against the judgment dated 10/12/2003 passed by learned Additional District and Sessions Judge (Fast Track) Behrod, District Alwar in Sessions Case No.35/2002 (31/1997) whereby, they were convicted for offence u/S.302/34 IPC and sentenced to life imprisonment with fine of Rs.2,000/- each and in default of payment thereof, they were required to further undergo simple imprisonment of six months. 2. Brief facts giving rise to this appeal are that a written report (Exb.P/8) was submitted by complainant-Lal Chand Yadav (PW2) to S.H.O. Police Station Behrod in Government Hospital Behrod alleging therein that his sister Santra was married to Hariram Ahir of Village Kankardipa. Hariram, who was having illicit relations with his ‘bhabhi’, used to harass her sister. Hariram was staying with his brother Harchand and ‘bhabhi’ Sona. His sister Santra used to stay separately and earn her livelihood by working as labour. Hariram had filed a divorce petition against his sister however, she contested the divorce petition and rather filed an application against him demanding maintenance. The court directed Hariram to pay maintenance to her. Hariram made default in making payment of maintenance and was in arrears. The court on the last date of hearing required Hariram to make payment of the entire arrears by 3/5/1997. On that day in court, informant heard Hariram telling someone that the adjournment should be taken in the court on that day and that he would finish his wife (Santra) before the next date. He received information from the police that his sister has been murdered and thereafter he went to the village Kankardipa. Sardara Ahir informed him that about 7.30 in the morning, he saw Hariram, Harchand and Sona fleeing from the house of Santra. Harchand was having ‘kulhada’ in his hands and all these people were fleeing from there. They also tried to murder his sister Santra. Apprehending to danger of her life, Santra used to sleep in the house of Sarli Kumhari. Litigation was pending between his deceased-sister and accused-Hariram for last 12-13 years. 3. On the basis of the above written report, police registered FIR No. 182/1997 against the accused for offence u/Sec. 302/34 IPC. After investigation, police filed challan against accused-appellants Hariram, Harchand and co-accused Sona. Litigation was pending between his deceased-sister and accused-Hariram for last 12-13 years. 3. On the basis of the above written report, police registered FIR No. 182/1997 against the accused for offence u/Sec. 302/34 IPC. After investigation, police filed challan against accused-appellants Hariram, Harchand and co-accused Sona. The charge was framed against accused-appellants Hariram and Harchand for offence u/Sec. 302/34 IPC, which they denied and claimed to be tried. Thereafter, on recording statements of some of the prosecution witnesses, the trial court took cognizance against co-accused Sona invoking Section 319 Cr.P.C. She was also arrayed as an accused and was also charged for offence u/Sec. 302/34 IPC. The prosecution produced nineteen witnesses and exhibited thirty, one documents, though defence did not produce any witness or documents. After conclusion of trial, trial court acquitted co-accused Sona of all the charges, however, convicted and sentenced the accused-appellants Hariram and Harchand in the manner indicated above. 4. Shri Ram Rakh Sharma, learned counsel for the accused-appellants at the outside informed the court that accused-appellant-Harchand has died on 27.2.2013. The appeal to the extent of Harchand is dismissed as having abated and now survives only in respect of accused-appellant-Hariram @Hari Singh. 5. We have heard Shri Ram Rakh Sharma, learned counsel for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for the State. 6. Shri Ram Rakh Sharma, learned counsel for accused-appellant-Hariram @ Hari Singh has argued that evidence in the present case does not prove the charge against accused-appellant-Hariram @ Hari Singh. Only Sardara Ram (PW12) has been described as eye-witness, he being the only eye-witness. Even he has stated that he has not made any allegation against accused-appellant Hariram of inflicting ‘kulhadi’ blow on the body of deceased-Santra. What he has alleged is that only accused Harchand and co-accused Sona inflicted ‘kulhadi’ blows on the body of the deceased. He has specifically stated that he did not see accused Hariram inflicting any ‘kulhadi’ blow on the body of the deceased. This witness in cross-examination has also maintained the similar stand. Even when his statement was again recorded after cognizance was taken against co-accused Sona, he maintained the same allegation. Learned counsel argued that Sardara Ram (PW12) in cross-examination has denied having given statement to the police u/S.161 Cr.P.C. that all three accused Harchand, Hariram and Sona caused injuries to deceased by ‘kulhadi’. Even when his statement was again recorded after cognizance was taken against co-accused Sona, he maintained the same allegation. Learned counsel argued that Sardara Ram (PW12) in cross-examination has denied having given statement to the police u/S.161 Cr.P.C. that all three accused Harchand, Hariram and Sona caused injuries to deceased by ‘kulhadi’. The accused-appellant thus has been falsely implicated in the present case and therefore, he deserves to be acquitted. Learned counsel argued that deceased was in litigation with regard to land with co-accused Harchand. Accused-appellant Hariram has been singled out and has been falsely implicated only because he filed divorce petition against deceased. Learned counsel submitted that witnesses have admitted the suggestion that deceased was having illicit relations with Ramjilal Yadav (PW3). In this connection, learned counsel referred to the statement of Ramjilal Yadav (PW3) and argued that he in his statement has admitted that appellant Hariram had filed divorce petition against deceased alleging illicit relations with him (this witness) and deceased Santra. Even if that was so, the real matrimonial dispute was between the deceased-Santra and appellant-Hariram. Merely because Harchand happens to be brother of Hariram, he cannot be embroiled in the present case. 7. Learned counsel for the appellant has argued that trial court has proceeded with pre-determined mind by prejudging the guilt of the accused only because number of incised wounds were sustained by the deceased. Trial court then sought to justify its finding by making search for the material on record on its own imagination. The impugned order suffers from non-application of mind. The accused-appellant has thus been convicted against the basic principles of criminal jurisprudence. 8. Learned counsel for the appellant argued that mere recovery of ‘kulhadi’ at the instance of the accused-appellant cannot be the sole basis of his conviction in the absence of connecting evidence and circumstances. This is all the more so when recovery of ‘kulhadi’ has also been shown at the instance of co-accused Harchand. Sardara Ram (PW12) also alleged that co-accused Sona too had ‘kulhadi’. Therefore in the face of allegation against three persons of inflicting injuries to deceased by ‘kulhadi’, there is apparent attempt to falsely implicating as many persons as possible. It was argued that there are contradictions and inconsistencies in the statement of the prosecution witnesses with regard to recovery of weapon of offence and other recoveries. Therefore in the face of allegation against three persons of inflicting injuries to deceased by ‘kulhadi’, there is apparent attempt to falsely implicating as many persons as possible. It was argued that there are contradictions and inconsistencies in the statement of the prosecution witnesses with regard to recovery of weapon of offence and other recoveries. No reliance can be placed on the statements of such prosecution witnesses. Learned counsel argued that the police swung into action without there being any first information report. Statements of the prosecution witnesses were recorded, recoveries were made and post-mortem was also conducted even before recording of first information report. 9. In fact, in the FIR names of the accused have been subsequently incorporated by Lal Chand Yadav (PW-2). Learned counsel argued that the common intention always pre-supposes some pre-arranged or pre-conceived plan. The essential ingredients of the principle of joint criminal liability are lacking in the present case. The trial court has erred in convicting the accused-appellant. The witnesses of the prosecution have not proved that they are the eye-witnesses and had seen the accused-appellant causing injuries to the deceased. Material witnesses have been declared hostile and not a single person has been accepted to be an eye-witness. Prosecution witnesses have changed their version and have given different version than the one given in the police statements u/S.161 Cr.P.C. Even Sardara Ram (PW12), who was held to be eye-witness by the trial court, also cannot be accepted as an eye-witness because he admitted that he went to the place of occurrence after hearing noise, which means incident had already taken place when he reached. Learned counsel argued that not a single witness has proved the allegation that the accused had told someone in the court premises that he would murder deceased before next date of hearing. Person in whom the accused allegedly confided to say so has neither been named nor produced. 10. In the alternative, learned counsel argued that even if it is held to be a case of culpable homicide, it would not be a case of culpable homicide amounting to murder because the incident took place all of a sudden on spur of moment in the heat of passion without the accused taking undue advantage of the situation. 10. In the alternative, learned counsel argued that even if it is held to be a case of culpable homicide, it would not be a case of culpable homicide amounting to murder because the incident took place all of a sudden on spur of moment in the heat of passion without the accused taking undue advantage of the situation. In support of his arguments, learned counsel for the appellant has placed reliance upon the judgments of Supreme Court in Abdul Nawaz vs. State of Best Bengal : 2012(2) WLC (SC) Cri. 74 = 2012(4) RLW 2988 (SC), Rampal Singh vs. State of U.P. : 2012(2) WLC (SC) Cri. 337 & Arjun vs. State of Maharashtra : 2012(1) WLC (SC) Cri. 796 = 2012(4) RLW 3236 (SC) and judgments of this Court in Ranjit @ Arjun vs. State of Rajasthan : 2012 WLC (Raj.) UC 389, Narayan Lal vs. State of Rajasthan : 2010 WLC (Raj.) UC 256, Shankar vs. State of Rajasthan : 2010(2) WLC (Raj.) 680 = 2010(3) RLW 2372 and Vinod Kumar vs. State of Rajasthan : 2011(1) WLC (Raj.) 182 = 2011(1) RLW 835. The appeal be therefore allowed and the conviction be set-aside. 11. Per contra, Shri Javed Choudhary, learned Public Prosecutor opposed the appeal and argued that there was strong motive of the accused-appellant to commit murder of the deceased. Evidence clearly prove matrimonial dispute between them. Land dispute was also pending between the deceased and the accused-appellants. Prosecution has proved that while accused-appellant filed a divorce petition against the deceased, she in turn filed a petition for maintenance under Section 125 Cr.P.C. The accused committed default in making payment and accordingly the court granted him last opportunity to deposit the entire arrears upto 3/5/1997. Learned Public Prosecutor submitted that Sarli Kumhari (PW6) has proved that deceased used to sleep in the night in her house for fear of her life from accused Hariram and that litigations regarding matrimonial and land were pending between them. Sardara Ram (PW12) has also categorically proved that he had seen the accused running from the place of incident on the day when deceased was murdered. He has also proved that deceased used to sleep in the house of Sarli Kumhari (PW6) due to fear for her life. Recovery of ‘kulhadi’ has been made at the instance of accused, which has been proved vide recovery memo (Exb.P/6). He has also proved that deceased used to sleep in the house of Sarli Kumhari (PW6) due to fear for her life. Recovery of ‘kulhadi’ has been made at the instance of accused, which has been proved vide recovery memo (Exb.P/6). In the FSL Report (Exb.P/21), it was opined that blood stain of group ‘O’ was found on the ‘kulhadi’ and blood of the same group was found on the clothes of the deceased. Participation of accused-appellant Hariram in the offence having thus been proved, he has rightly been convicted. Learned Public Prosecutor argued that conduct of the accused in fleeing from the place of incident soon after murder of Santra and remaining absconded for long time, raises a serious doubt about his involvement in the crime. There is thus ample evidence for sustaining his conviction. Lastly learned Public Prosecutor argued that the present case does not fall within Exception 4 of Section 300 IPC. The appeal be therefore dismissed. 12. We have given our anxious consideration to the rival submissions and perused the material available on record. 13. It is no doubt true that telephonic information was received by the SHO PS Behrod at 11.45 a.m. on 30/4/1997 about the murder of deceased-Santra and the person, who made such phone call did not disclose his name however, such a cryptic information cannot be treated as first information report (Exb.P/9) and therefore even if police has subsequently obtained a written report (Exb.P/8) from the brother of deceased Lal Chand Yadav (PW2), that cannot be a lacuna in investigation and such lacuna does not in every case mar the credibility of investigation. The site plan (Exb.P/3), seizure memo of ‘parat’ (iron plate) Exb.P/4 and seizure of the blood smeared soil and control soil (Exb.P/5) from the place of incident was prepared under Section 174 Cr.P.C. Even if they have been used in the investigation of the present matter and does not mention name of the FIR, that does not in any manner adversely effect fairness of investigation. Explanation for late filing of FIR has to be accepted in the facts of the case when evidence suggests that deceased was staying alone in her house and her husband having deserted her and her brother used to stay in another village and when he received telephone information from the police, he went there and gave written report to the SHO PS Behrod. 14. 14. Trial court in the impugned judgment has analysed the entire evidence and eventually held that in so far as co-accused Sona is concerned, no prosecution witness has alleged that she threatened the deceased prior to the incident. Besides, no prosecution witness has stated that he saw co-accused Sona fleeing from the place of incident. Neither any prosecution witness said that he saw co-accused Sona wielding any weapon of offence nor any recovery of arm has been made at her instance. Police originally submitted negative final report against her. Trial court however took cognizance against her after she was named by the prosecution witnesses by recourse to Section 319 Cr.P.C. but it does not conclusively prove her involvement in the offence. Learned trial court has in our considered view, rightly held co-accused Sona not guilty as the charge against her was not proved beyond reasonable doubt. 15. We are however inclined to agree with the learned Public Prosecutor that accused-appellant Hariram had strong motive for committing murder of deceased-Santra. The documents, which have been placed on record, clearly prove that accused-appellant had filed a divorce petition against deceased-Santra in the Court of Additional District and Sessions Judge, Behrod. Copy of the petition filed under Section 13 of the Hindu Marriage Act, 1955 is placed on record as Exb.P/29. Their matrimonial relations got so strained that accused made allegation of infidelity against deceased. He even alleged that deceased was having illicit relations with Ramjilal Yadav (PW3), Sarpanch of the village. Ramjilal Yadav (PW3) in cross-examination on being apprised of this allegation, stated that he had filed a suit for defamation against appellant for making such false allegation. Deceased-Santra in reply to the petition under Section 13 of the Hindu Marriage Act vide Exb.P.30 made counter allegation against accused-appellant Hariram that he had illicit relations with his ‘bhabhi’ Sona, wife of his brother Harchand and that he transferred all his land in the khatedari of his brother Harchand. Deceased-Santra had filed a petition under Section 125 Cr.P.C. claiming maintenance against accused Hariram, certified copy of which has been placed on record as Exb.P/22. When the appellant failed to make regular payment of the maintenance @Rs.500/- per month w.e.f. 23/5/1989 despite direction of the court, appellant went into default and did not make payment. Deceased filed petition u/S.127 Cr.P.C. against appellant. The matter was last listed before the court on 2/4/1997. When the appellant failed to make regular payment of the maintenance @Rs.500/- per month w.e.f. 23/5/1989 despite direction of the court, appellant went into default and did not make payment. Deceased filed petition u/S.127 Cr.P.C. against appellant. The matter was last listed before the court on 2/4/1997. The court had granted time to the accused-appellant upto 3/5/1997 to make payment of arrears. This is evident from the certified copy of the proceedings dated 6/1/1997 (Exb.P/28) on record. Though, there was revenue litigation pending between deceased-Santra and co-accused Harchand regarding some agricultural land but animosity between the appellant husband and the deceased wife in view of their matrimonial discord is quite apparent, which indeed was a strong motive for the appellant to murder his wife Santra. Though motive alone may not be sufficient to hold appellant guilty of murder but other circumstances proved against him would definitely get reinforced by the motive so proved. 16. Sardara Ram (PW12) has alleged presence of Harchand, Sona as also of Hari Ram. He alleged that Harchand and Sona were inflicting ‘kulhadi’ blows on the deceased and though he saw Hariram standing there but did not see Hariram causing injuries to the deceased. But this witness has also not stated that appellant did not inflict ‘kulhadi’ blow on deceased at that point of time when he saw him. All that means is that some of the injuries had already been caused to the deceased-Santra by the time he reached there. This witness has also stated that there was some land dispute between the deceased and the appellant, owing to which, she was murdered. This witness has also stated that the appellant had deserted deceased-Santra and further that she was apprehensive for her life and therefore she used to sleep in the night in the house of Sarli Kumhari (PW6). When confronted with his original statement to the police (Exb.D/3) u/S.161 Cr.P.C., this witness in cross-examination failed to give any explanation, yet he has substantially supported the prosecution case. Lal Chand Yadav (PW2) informant and brother of deceased has proved the contents of the first information report (Exb.P/9) and the matrimonial dispute between the deceased and the appellant. He has stated that earlier also, these accused had subjected deceased-Santra to beating 2-3 times. Ramjilal Yadav (PW3) has stated that he was witness to panchnama (Exb.P/1) and has proved that deceased sustained head injuries. He has stated that earlier also, these accused had subjected deceased-Santra to beating 2-3 times. Ramjilal Yadav (PW3) has stated that he was witness to panchnama (Exb.P/1) and has proved that deceased sustained head injuries. Her brain matter had come out. He has proved the preparation of site plan Exb.P/3, recovery of ‘parat’ (Exb.P/4) from the place of occurrence and blood stained soil (Exb.P/5). This witness has stated that when accused made false allegation against him of illicit relation with deceased, he filed a suit for defamation against him in the court. He has denied the suggestion that he used to accompany the deceased to the court whenever her case was fixed. 17. Ramniwas (PW1) has proved panchnama (Exb.P/1), identification of dead-body (Exb.P/2), site plan (Exb.P/3), recovery memo of ‘parat’ (Exb.P/4) and recovery memo of blood smeared soil (Exb.P/5). Phool Singh (PW4) was also witness of panchnama of the body (Exb.P/1) and has proved so. Rampyari (PW5) has stated that she had seen Hariram, Harchand and Sona fleeing from the house of Santra, who used to stay alone and her husband was residing with Sona. She stated that Santra used to confide in her that someday appellant might kill her. Sarli (PW6) has stated that Santra was so frightened from accused-appellant Hariram that she used to sleep in the night in her house (this witness) for last 17 years. Tirpati (PW7), ‘bhabhi’ of the deceased, has proved matrimonial litigation between them. Saroj (PW8) has not supported the prosecution case and was declared hostile. Roopkala (PW9) has also proved matrimonial disputes between them and that on the day of incident, deceased had gone to 'purani haweli' for making cakes of cow-dung. Sute Singh @Sube Singh (PW10) is a witness to recovery of clothes of deceased-Santra vide Exb.P/10. Rampat (PW11) has stated that he had seen accused Hari Ram and Harchand fleeing from the place of incident through the way adjacent to his agriculture field at about 6.30 a.m. At that time, he was smoking ‘hukka’ and he offered them a smoke of ‘hukka’ but they declined saying that they had to catch up the bus. While Harchand was having shoes on his feet, Hariram was barefoot. After some time, they started running. When he raised alarm why they were running then, villagers also came there and informed that they had murdered deceased-Santra. 18. Dr. While Harchand was having shoes on his feet, Hariram was barefoot. After some time, they started running. When he raised alarm why they were running then, villagers also came there and informed that they had murdered deceased-Santra. 18. Dr. Mahesh Agrawal, Dr.S.N. Yadav and Dr.N.S. Yadav have conducted the post-mortem of deceased-Santra vide post-mortem report (Exb.P/15), according to which, she received the following injuries:- “1. Incised wound 4”x1” bone deep over posterior aspect of right shoulder, horizontally placed. 2. Incised wound 3”x1” muscle deep over dorsal spinal leril, horizontally placed. 3. Abrasion 1”x ¼” over right intra scapular region. 4. Incised wound 5”x1” muscle deep over right side of neck extending front mid of sterno dedomevalid leril to tragus of right ear vertically placed. 5. Incised wound 3”x1” muscle deep over posterior aspect of neck at third celuzal spine leril, reaching upto injury No.4, horizontally placed. 6. Incised wound 6”x1” brain deep extending from right zygomatic region to right fronto parietal region of scalp, obliquely placed. 7. Incised wound 5”x1” brain deep over right fronto parietal region of scalp 3” medial to injury No.6, obliquely placed. 8. Incised wound 5”x1” brain deep over occipital region of scalp right side, obliquely placed. 9. Incised wound 3”x1” brain deep over right parietal region of scalp, ligina auto posteriorly. 10. Incised wound 1”x½” bone deep over left side forehead, horizontally placed.” According to the post-mortem report (Exb.P/15), the cause of death was opined to be head injury, leading to coma and death. Dr.Shivnarayan (PW16) has also proved the post-mortem report and the head injury of the deceased. Post-mortem report (Exb.P/15) thus clearly show that deceased sustained as many as ten incised injuries except one, five of those injuries were on the head. 19. Devkinandan Sharma (PW15) has proved the recovery of ‘kulhadi’ at the instance of Harchand vide Exb.P/7 and place of recovery vide Exb.P.16. Nityanand (PW17) has proved recovery of ‘kulhadi’ at the instance of accused-appellant vide Exb.P/6 and site plan (Exb.P/8). Satyapal (PW19) has proved deposit of five packets in sealed condition with FSL, receipt of which is Exb.P/20. Raghuraj Singh (PW18), SHO PS Behrod has proved all the documents of investigation and different memos. The 'kulhadi' with hairs were sent to the FSL for its examination vide “Packet-C” & “Packet-D” (Exb.P/6, Exb.P/7 & Exb.P/8). Satyapal (PW19) has proved deposit of five packets in sealed condition with FSL, receipt of which is Exb.P/20. Raghuraj Singh (PW18), SHO PS Behrod has proved all the documents of investigation and different memos. The 'kulhadi' with hairs were sent to the FSL for its examination vide “Packet-C” & “Packet-D” (Exb.P/6, Exb.P/7 & Exb.P/8). When ‘kulhadi’ (Exb.P/6) that was recovered at the instance of the accused-appellant was subjected to Serological Examination (Exb.P/21), blood stains found on kulhadi with hairs were opined to be of human blood of ‘O’ Group. Blood smeared soil (Exb.P/1) was sent for examination vide “Packet-A”, control soil (Exb.P/2) vide “Packet-A1”, ‘ghaghara’ (Exb.P/3), ‘Odhani’ (Exb.P/4) and ‘kamij’ (Exb.P/5) vide “Packet-B” belonging to deceased, which were also found containing blood stains of ‘O’ group. Hairs of the deceased (Exb.P/7) vide Packet-C were also found containing the blood stains of ‘O’ group. All this conclusive prove that ‘kulhadi’ with hairs having blood stains recovered at the instance of the accused-appellant and the clothes, which the deceased was wearing at the time of incident, were all having blood stains of ‘O’ group. 20. Coming now to the alternative argument of the learned counsel for the accused-appellant that offence u/S.302 IPC may be altered to Sec.304 Pt.-I IPC, we notice this argument only to reject because the manner in which the multiple number of injuries were caused to deceased leaves no manner of doubt that accused had both, the requisite knowledge and intention to murder the deceased. In the facts of this case, it cannot be said that there was no pre-meditation because accused had gone to the place of incident armed with ‘kulhadi’. It also cannot be said that this was a case of sudden fight between the accused and the deceased or that the incident had taken place on the spur of moment in a heat of passion and most importantly, that the accused did not take any undue advantage, which is proved from repeated ‘kulhadi’ blows on the body of the deceased resulting in as many nine incised wounds, five of which were on the head only. Dr.Mahesh Agrawal, Dr.S.N. Yadav and Dr.N.S. Yadav were members of Medical Board, which conducted the post-mortem of deceased-Santra and opined her cause of death vide post-mortem report (Ex.P/15). Dr.Shivnarayan (PW16) has also proved the post-mortem report (Ex.P/15) and the head injury of the deceased. Dr.Mahesh Agrawal, Dr.S.N. Yadav and Dr.N.S. Yadav were members of Medical Board, which conducted the post-mortem of deceased-Santra and opined her cause of death vide post-mortem report (Ex.P/15). Dr.Shivnarayan (PW16) has also proved the post-mortem report (Ex.P/15) and the head injury of the deceased. Judgments cited by the learned counsel for the accused-appellant are distinguishable on facts and ratio thereof does not apply to the facts of the present case. 21. We do not find any infirmity in the judgment of the trial court convicting and sentencing the accused-appellant for offence u/S.302 with the aid of Section 34 IPC. 22. In the result, the appeal is dismissed. The judgment dated 10/12/2003 passed by learned Additional District and Sessions Judge (Fast Track) Behrod, District Alwar in Sessions Case No.35/2002 (31/1997) is thus affirmed. Record be sent back to the court below forthwith.