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2015 DIGILAW 1314 (RAJ)

Naina @ Nainiya Banjara v. State of Rajasthan

2015-07-16

GOVIND MATHUR, JAISHREE THAKUR

body2015
JUDGMENT : By judgment impugned dated 30.5.2013 learned Additional Sessions Judge, Dungarpur recorded conviction of accused Naina @ Nainiya for the offences punishable under Sections 302 and 201 Indian Penal Code and awarded sentence as under:- u/S.302 IPC – Life term imprisonment with a fine of Rs.5000/- and in default of payment of fine further to undergo one year's additional rigorous imprisonment. u/S.201 IPC – Three years rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine further to undergo one month's additional rigorous imprisonment. Succinctly, facts of the case are that a first information report at the instance of Shri Dhania was lodged at Police Station Aspur in the morning at about 08:00 AM on 13.10.2011. On basis of the first information report aforesaid a case was lodged against the accused appellant for the offences punishable under Sections 302 and 201 Indian Penal Code. As per the facts stated in the first information report at about eight years earlier Smt. Bachi, sister of informant Dhania, entered into a wedlock with accused Naina. The accused was in habit of ill-treating his wife and he used to beat Smt. Bachi mercilessly. On 13.10.2011 Shri Dhania received a telephonic information from Shri Ganga, brother of accused Naina @ Nainiya about some ill-happening at the residence of accused. Informant was advised to reach at the place of incidence as soon as possible. On arriving at the residence of accused, Shri Dhania found dead body of his sister hanging on a wooden beam. The body was having several visible injuries. On basis of the information aforesaid investigating agency initiated the investigation and during the course of that prepared an inquest, site plan and send the body for postmortem. On the same day accused Naina @ Nainiya was arrested and at his instance a piece of wood having blood stains was recovered. The investigating agency also seized the shirt of the accused having blood stains, which he was wearing at the time of his arrest. The piece of wood and the shirt of the accused were sent for their serological examination to the Forensic Science Laboratory, Udaipur. As per the report given by the Forensic Science Laboratory the blood stains available on the piece of wood as well as the shirt were having human blood of group 'A'. The piece of wood and the shirt of the accused were sent for their serological examination to the Forensic Science Laboratory, Udaipur. As per the report given by the Forensic Science Laboratory the blood stains available on the piece of wood as well as the shirt were having human blood of group 'A'. After completing the investigation a police report as per Section 173 Code of Criminal Procedure was filed before the court of learned Judicial Magistrate, Aspur who committed the case to the court of Sessions being sessions triable. The Sessions court framed a charge against the accused for commission of the offences punishable under Sections 302 and 201 Indian Penal Code. On denial of the same trial commenced as desired. The prosecution supported its case with the aid of 17 witnesses including Dr. Kamlesh Kumar Gupta (PW-13), Dr. Sandeep Agrawal (PW-4), Shri Hanuwant Singh (PW-12), the Investigating Officer, and Shri Nand Kishore Verma (PW-11), Deputy Inspector of Police, Police Station Sagwara. The prosecution also got 26 documents exhibited. An opportunity was given to the accused as per Section 313 Code of Criminal Procedure to explain the adverse and incriminating circumstances against him available in prosecution evidence. The accused accepted the fact of his marriage with deceased Smt. Bachi and her death on 13.10.2011, but pleaded ignorance about other evidence adduced by the prosecution. In defence statements of Shri Chhogia (DW-1) and Bheema (DW-2) were recorded. A document Ex.D/1 i.e. certified copy of 'Malkhana Register' was also exhibited. Learned Public Prosecutor on basis of the evidence available argued before the trial court that the accused was last seen with deceased, he was with deceased in the intervening night of 12/13.10.2011 at their house and as per medical evidence death of Smt. Bachi was homicidal one, but no explanation is given by the accused for the facts those would have been in his especial knowledge about the death of Smt. Bachi. It was also argued that as per the medical evidence deceased Smt. Bachi was having fracture in her femur bone of right leg and humerus bone of right hand, therefore, it was not possible for her to hang herself on wooden beam. It was also argued that as per the medical evidence deceased Smt. Bachi was having fracture in her femur bone of right leg and humerus bone of right hand, therefore, it was not possible for her to hang herself on wooden beam. Learned Public Prosecutor also argued that both the feet of deceased were resting on floor, therefore, the prosecution is absolutely correct in saying that the accused first killed Smt. Bachi and then hanged her on beam with a plastic rope. In defence, it was stated that most of the prosecution witnesses have not supported the prosecution case and the evidence in abundance is available to establish that deceased Smt. Bachi was under depression due to her ailment, thus, she committed suicide. It was urged that the circumstances on which the trial court relied are not sufficient to arrive at a definite conclusion about involvement of accused in the crime in question. Learned trial court after examining the entire evidence available on record held that though the most of the prosecution witnesses who are relatives of either the deceased or the accused have not supported the prosecution case but the other evidence available on record is adequate to form a complete chain of circumstances indicating only one conclusion i.e. of involvement of the accused in the crime. In appeal, the argument advanced by learned counsel for the appellant is that the conviction is based on the circumstances which are having several breakage, thus, are not forming a complete chain with sufficient strength to establish guilt of the accused. According to learned counsel the conviction is based purely on the medical evidence which by no stretch of imagination can be treated sufficient to record a verdict of guilty. On the other hand, learned Public Prosecutor Shri J.P.Bhardwaj pointed out that detailing of entire incident by the Investigating Officer, the medical evidence available on record, recovery of shirt and a part of wood at the instance of accused having blood stains of group 'A' and failure on part of the accused to explain the facts under his especial knowledge are the circumstances sufficient to convict the accused. Heard learned counsel for the appellant and the learned Public Prosecutor. Heard learned counsel for the appellant and the learned Public Prosecutor. True it is, most of the prosecution witnesses including Shri Dhania, at the instance of whom the first information report was lodged, have not supported the prosecution case and they were declared hostile, but on basis of the other evidence available on record we do not find any wrong with the findings arrived by the trial court. It shall be relevant to mention that Shri Dhania (PW-5) supported the prosecution to the extent that he received a telephonic information about some incident at the place of her sister and was advised to reach there soon. He also stated that he saw dead body of his sister at her residence. The lodging of written report at Police Station Aspur has also been accepted by this witness. The facts above as such have been adequately established. Shri Hanuwant Singh (PW-12) while getting his testimony examined narrated details of all the steps taken by him as Investigating Officer during the course of investigation including preparation of inquest, site plan, recovery of blood stained shirt and a part of wood and also about autopsy conducted by a medical board as per the request. The site inspection report is available on record as Ex.P/10. According to the site inspection report the beam on which dead body of Smt. Bachi was hanging is at the height of 6 feet and 28 cms. (6' 11”) from the floor. The length of the rope with the aid of which dead body of Smt. Bachi was hanged, from the end of wooden beam to the neck of deceased was 75 cms. (2.6') of length. Both the feet of deceased were resting on floor. The facts stated in the site plan (Ex.P/10) clearly indicate that the wooden beam on which dead body was hanging was not on much height and after reducing the length of rope, the total distance between the neck of the deceased and her feet was only about 4 feet and 5 inches (4' 5”). An important aspect is required to be noticed that both the feet, as per the site inspection report, were resting on floor and it is quite obvious as the gap between the floor and neck of the deceased was of only 4 feet and 5 inches (4' 5”). An important aspect is required to be noticed that both the feet, as per the site inspection report, were resting on floor and it is quite obvious as the gap between the floor and neck of the deceased was of only 4 feet and 5 inches (4' 5”). The facts stated in the site inspection report acquires much importance in light of the medical evidence adduced. The autopsy on the body of deceased Smt. Bachi was made by a medical board consisting of Dr. Sandeep Agrawal (PW-4) and Dr. Kamlesh Kumar Gupta (PW-13). As per these witnesses the cause of death of deceased was asphyxia due to strangulation. Both the witnesses stated that the corpus was having several injuries including fracture in the right femoral bone and right humerus bone. A fracture was also there in thyroid cartilage of neck. Both the doctors noticed two legature marks on the neck of deceased, one mark was circular, around the neck and other was oblique shaped. Dr. Sandeep Agrawal as well as Dr. Kamlesh Kumar Gupta stated that the oblique legature mark was postmortem and all other injuries were antemortem. Dr. Kamlesh Kumar Gupta (PW-13) on asking by the court clarified that the oblique legature mark can be received, even if, a dead body is hanged after strangulation. The medical evidence noticed above well establishes that the death of Smt. Bachi was homicidal one, she died because of strangulation and the oblique legature mark was caused after her death. The dead body as already stated was found in hanging position, therefore, no dispute is there that oblique legature mark was because of hanging by plastic rope. The availability of circular ligature mark which is antemortem is sufficient to establish that Smt. Bachi was first killed by strangulation and then she was hanged on wooden beam with the aid of plastic rope. This fact gains more strength in light of the bone injuries noticed by the medical board. Smt. Bachi was having a fracture in her right femur and right humerus bones and a person suffering from such fractures cannot be in position to hang herself/himself. The important question now before the Court is about role of the accused in killing of Smt. Bachi. Except the evidence discussed above and the evidence relating to the steps taken during the course of investigation by the investigating agency have not been established. The important question now before the Court is about role of the accused in killing of Smt. Bachi. Except the evidence discussed above and the evidence relating to the steps taken during the course of investigation by the investigating agency have not been established. The fact about recovery of the part of a wood and the shirt of the accused having blood stains has been verified by the Investigating Officer but the attesting witnesses have not supported that. Beside that, the investigating agency also has not got the blood group of deceased examined by the Forensic Science Laboratory. The non-availability of direct evidence in the cases where a person of family is killed by other member of family is not unusual. Quite often common relatives of the accused and deceased do not support the prosecution case. We have also noticed that in most of the cases of such nature the parties reach at some compromise and as a strategy tries to frustrate the prosecution case. This case too is not an exception. With these handicaps we are required to examine correctness of the findings arrived by the trial court. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The provision aforesaid deals with shifting the onus of a particular fact upon the accused which would have been especially within his knowledge. This provision is an exception to Section 101 of the Indian Evidence Act and on being prima facie establishment of prosecution case, it is for the accused to explain the adverse and incriminating circumstance within his especial knowledge. In absence of such explanation the court can draw presumption against him. Hon'ble Supreme Court in State of Rajasthan v. Kashi Ram, reported in (2006)12 SCC 254 , while examining scope of Section 106 of the Indian Evidence Act, held as under:- “The provision of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory of hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.” In the instant case it has been established that the dead body of Smt. Bachi was found in the house of the accused, he was with deceased Smt. Bachi in the intervening night fo 12/13.10.2011, in the night aforesaid Smt. Bachi died, her death was homicidal one, she was killed by strangulation, she also suffered fractures in his right leg and right hand, she was hanged on a wooden beam after her death and as per the Investigating Officer the shirt worn by the accused at the time of his arrest was having blood stains of group 'A'. The accused while availing the opportunity to explain adverse and incriminating circumstances has not stated anything about all these adverse and incriminating circumstances in prosecution evidence, he also not came forward to get his testimony examined as a defence witness as per Section 315 Code of Criminal Procedure with a view to explain the facts under his especial knowledge, hence, he failed to discharge the burden to explain the facts in his especial knowledge. This too is an important circumstance to indicate his involvement in the crime in question. This too is an important circumstance to indicate his involvement in the crime in question. On pondering of the entire evidence available on record and whatever discussed above, the circumstances against the accused appellant are that he was with deceased Smt. Bachi in the intervening night of 12/13.10.2011, Smt. Bachi died in the night aforesaid, the cause of her death was asphyxia due to strangulation, before death severe beating was given to deceased Smt. Bachi that caused fracture in femur bone of her right leg and humerus bone of her right hand, after causing death an effort was made to depict a wrong story of the incident and also to elope the evidence by hanging her on a wooden beam with the aid of a plastic rope and further the accused failed to explain the facts which could have been only in his especial knowledge. This chain of circumstances, in our considered opinion, is sufficient to arrive at the conclusion that Smt. Bachi was killed by the accused. The finding arrived by the trial court, thus, does not suffer from any wrong. Accordingly, the appeal is dismissed. The conviction recorded and the sentence awarded are affirmed.