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2016 DIGILAW 1481 (RAJ)

Kanti Lal Meena v. State of Rajasthan

2016-10-07

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : Gopal Krishan Vyas, J. The instant cr. jail appeal has been filed by the accused appellant Kanti Lal S/o Dinesh from Central Jail, Udaipur to challenge the judgment dated 17.8.2007 passed by the learned Addl. District and Sessions judge (FT) No. 3, Udaipur camp Salumbar in Sessions Case No. 48/2007 by which the accused appellant was convicted for the offence under Section 302 I.P.C. and sentenced him to life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months imprisonment on the basis of circumstantial evidence. 2. As per facts of the case PW-1 Kava Meena S/o Bada Meena filed a written complaint on 1.4.2007 at Police Station Pahada in which it was stated by him that today at about 8.30 am one Vela Meena came to my residence and informed that your niece Manjula W/o Kanti Lal had died. Upon receiving aforesaid information, I made a phone call-to my brother Jeeva at Himmatnagar and after receiving information, my brother came at Guda. Thereafter, I gave information Jeeva, Banshi Lal, Thawara, Kedara, Somraj and Jagdish that I have been informed by Vella Meena that my niece Manjula died. After giving formation to aforesaid persons the complainant went at village Boslathi at the house of deceased Manjula, where they saw that inside the house there is pathsal in which dead body of Kanjula was lying at cot and under the cot, blood was spread and upon moving the neck of deceased, the neck of the deceased was found to be revolving all around and there is swelling upon the neck and her today was in strut condition. As per allegation by the complainant husband of Manjula, Kanti Lal while inflicting upon her forehead by stone pushed her inside he house and committed murder by throttling her neck. In the F.I.R. it is also stated that marriage of Manjula solemnized 13 years back with Kanti Lal but from last 3-4 years due to domestic work, some quarrel took place, therefore, Manjula came to the house of in-laws but after conciliation, she was sent back because she was having children. 3. In the F.I.R. it is also stated that marriage of Manjula solemnized 13 years back with Kanti Lal but from last 3-4 years due to domestic work, some quarrel took place, therefore, Manjula came to the house of in-laws but after conciliation, she was sent back because she was having children. 3. In the F.I.R., it is also stated by the complainant Kava that accused appellant usually said that character of Manjula is not good, sometime, I will kill tor, therefore, it is a case of murder committed by Kanti Lal, hence, action may betaken against him. 4. Upon aforesaid written complaint, F.I.R. No. 92/2007 (Ex.P-10) was registered at Police Station Pahada, District Udaipur on 1.4.2007 under Section 502 I.P.C. and investigation was commenced. The Investigating Officer after inspection of place of occurrence prepared site plan (Ex.P-6) and Panchayatnama Ex.P-2) of the dead body of Manjula in front of witnesses on 1.4.2007. The body of deceased Manjula was sent for post mortem at Government Hospital, Rishabhdev. The blood stained soil and controlled soil from the place of occurrence and blood stained Saree were taken in possession vide Ex.P-4 and P-5. After post mortem the body was handed over to the family members of deceased Manjula for cremation. 5. In the investigation, statements of witnesses Kava, Jeeva, Thawara, Kodara, Smt. Shanta and Vella were recorded and on the basis of circumstantial evidence, accused appellant Kanti Lal was arrested vide Ex.P-11. In the investigation, one stone was recovered as per information given by the accused appellant and one blood stained Baniyan was also recovered vide Ex.P-7 and all the articles were sent to the FSL, Udaipur for examination. After completion of investigation, charge-sheet was filed against the accused appellant in the Court of Addl. Chief Judicial Magistrate, Kherwada, District Udaipur under Section 302 I.P.C. by the SHO Police Station Pahada. 6. The learned Magistrate committed the case for trial to the Court of Sessions Judge, Udaipur but later on, transferred to the Court of Addl. District & Sessions Judge (FT) No. 3, Udaipur for trial. 7. In the trial, charge under Section 302 I.P.C. was framed after providing an opportunity of hearing to the accused appellant but accused appellant Kanti lal denied all the allegations made against him. District & Sessions Judge (FT) No. 3, Udaipur for trial. 7. In the trial, charge under Section 302 I.P.C. was framed after providing an opportunity of hearing to the accused appellant but accused appellant Kanti lal denied all the allegations made against him. In the trial statement of 12 prosecution witness were recorded thereafter, statement of the accused appellant under Section 313 Cr.P.C. were recorded in which the accused appellant denied all the allegations levelled against him by the prosecution witnesses. No evidence was produced by him in defence. 8. The learned Trial Court after hearing final arguments convicted the accused appellant for the offence under Section 302 I.P.C. and passed sentence for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months imprisonment vide judgment dated 17.8.2007. 9. In this jail appeal the appellant is challenging the validity of said judgment on various grounds. 10. Learned Counsel for the accused appellant submits that in this case 12 prosecution witnesses were produced in the Court to prove the prosecution case based upon circumstantial evidence, out of which, PW-1 Kava is uncle deceased Manjula, PW-2 Smt. Shanta is mother of deceased Manjula, PW-Thawara is also uncle of deceased Manjula, PW-4 Banshi Lal is Sarpanch village Guda, Tehsil Kherwada, District Udaipur and PW-5 jeeva is father deceased Manjula. None of the witness is eye-witness of the incident, more so these witnesses were not even present in the village Guda on the date incident. PW-6 Narendra Kumar is the witness of recovery of one stone a blood stained old Baniyan (Ex.P-7) which is said to be recovered as information given by the accused appellant, but this witness turned hostile a did not support the prosecution case to prove the fact of recovery of stone well as blood stained Baniyan. PW-7 Somesar is also witness of recovery of stone and Baniyan, but this witness also turned hostile and did not support the prosecution case. 11. Learned Amicus Curiae vehemently argued that entire prosecution case is based upon circumstantial evidence, but prosecution has failed to prove case beyond reasonable doubt because witnesses of recovery of articles a stone turned hostile. PW-7 Somesar is also witness of recovery of stone and Baniyan, but this witness also turned hostile and did not support the prosecution case. 11. Learned Amicus Curiae vehemently argued that entire prosecution case is based upon circumstantial evidence, but prosecution has failed to prove case beyond reasonable doubt because witnesses of recovery of articles a stone turned hostile. Further, it is submitted that as per FSL report (Ex.P-14) blood was found upon the pieces of stone and Baniyan which is said to recovered by the Investigating Officer vide Ex.P-7 and P-8, therefore, it is a in which prosecution has completely failed to establish the case against accused appellant on the basis of circumstantial evidence. While inviting attention towards the judgment of the Hon'ble Supreme Court in the case Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 , it is submitted that without any reliable and trustworthy evidence no ; person can be convicted but erroneously, the learned Trial Court convicted the accused appellant for alleged offence of murder which is punishable under Section 302 I.P.C., therefore, the judgment impugned may kindly be quashed. 12. Per contra, learned Public Prosecutor vehemently argued that although there is no eye-witness of the incident, but it is a case in which the accused appellant committed murder of his own wife and admittedly, the husband and wife both were in the house when incident took place, therefore, the fact of residing together is sufficient to presume that accused appellant has committed murder of his own wife Manjula. 13. While inviting attention towards the finding given by the learned Trial Court for conviction, it is submitted that learned Trial Court has accepted that although there is no eye-witness of the incident and accused appellant has said in his statement that he has been falsely implicated in this case, but the other witnesses PW-1 Kava, uncle of the deceased, PW-2 Smt. Shanta, mother of the deceased Manjula, so also, PW-3 Thawara, another uncle of the deceased Manjula and PW-5 Jeeva, father of the deceased specifically stated in their statement that upon information received by them, they went in the room of the deceased and accused appellant where they saw that dead body of Manjula was lying in the room and there were injuries upon her head and blood was coming out from the injury. Further the symptoms of the dead body loudly speaks that injury was inflicted by the accused appellant Kanti Lal by stone. Further, these witnesses said that relationship of accused appellant and Manjula was not healthy, the accused appellant used to beat her. 14. It is also stated that accused appellant and deceased were having four children, therefore, it is obvious that in the incident took place in the house of accused appellant and deceased Manjula, Manjula died, therefore, presumption is required to be drawn against the accused appellant for committing offence of murder. Learned Public Prosecutor submits that the finding of the learned Trial Court for holding accused appellant guilty does not require any interference because the learned Trial Court considered the argument of the learned Counsel for the appellant with regard to contradiction in the statements of prosecution witnesses, but held that those contradictions are not relevant because there is evidence in the statement of prosecution witnesses that accused appellant was having doubt upon character of Manjula. Therefore, the instant appeal may kindly be dismissed. 15. After hearing the learned Counsel for the parties, we have minutely scanned the entire evidence on record finding given in the judgment passed by the learned Trial Court. It is worthwhile to observe that not only the two witnesses of recovery turned hostile and did not prove the recovery of stone and Baniyan, but also in the FSL report (Ex.P-14) no blood was found upon the piece of stone and Baniyan which is said to be recovered by the Investigating Officer vide Ex.P-7 and P/8. We have perused the statement of PW-1 Kava, who has categorically stated before the Court that on 1.7.2007 one Vella met him in the morning in between 8.30 - 9'O Clock and informed that Manjula has died due to throttling committed by her husband Kanti Lal. Upon aforesaid information witness Kava said that he went to the village along with my brother Kodara, Thawara, Sarpanch Banshi Lal, Somraj, Nara and Ramji and saw that dead body of Manjula was lying upon cot having injuries upon her head from which blood was coming out, so also, blood was lying upon the floor and upon cot and Saree of deceased was lying upon the legs. It is also important to note that the informant Vella though was in list of witnesses but not produced in the trial to prove the allegation for committing murder by the accused Kanti Lal. The witness PW-1 Kava said that accused appellant was suspecting about character of Manjula, therefore, harassing Manjula and also gave threat that I will kill Manjula. 16. In the statement of PW-2 Smt. Shanta mother of the deceased Manjula. No allegation was levelled by her about the fact that accused appellant was having doubt upon the character of the deceased. Similarly PW-5 Jeeva, father of the deceased Majula though stated in his statement that accused appellant was beating Manjula but it is nowhere stated by him that any suspicion was raised by him about character of Manjula. In our opinion, the allegation of Kava about having suspicion about character of Manjula is not even supported by father PW-5 Jeeva and mother PW-2 Smt. Shanta, therefore, it cannot be said that there is any substance in the prosecution case about motive for killing the deceased. The whole case is based upon circumstantial evidence. 17. The prosecution case is based upon presumption that accused appellant inflicted injury by stone upon the head of the deceased and, thereafter, committed throttling, but this fact is not established because no blood was found upon Baniyan of the accused appellant and stone which is said to be recovered upon information given by the accused appellant. It is also worthwhile to observe that in FSL report (Ex.P-14) no blood group was found upon the articles sent for determination of blood group of human blood. The whole case is based upon circumstantial evidence, therefore, as per the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 , which is subsequently followed in the judgment reported in AIR 1990 SC 79 : Padala Veera Reddy v. State of Andhra Pradesh & Ors., it has been held that if the prosecution case is based upon circumstantial evidence then it has to be proved beyond reasonable doubt by leading trustworthy evidence. 18. In case of State of Haryana v. Ved Prakash reported in AIR 1994 SC 468 the Hon'ble Supreme Court held that prosecution is required to prove its case beyond reasonable doubt if the entire case is based upon circumstantial evidence. 18. In case of State of Haryana v. Ved Prakash reported in AIR 1994 SC 468 the Hon'ble Supreme Court held that prosecution is required to prove its case beyond reasonable doubt if the entire case is based upon circumstantial evidence. In case of Keshav v. State of Maharashtra reported in 2008(1) G (SC) Cr. 16 the Hon'ble Supreme Court held that weapon recovered at the instance of accused, however, it was having no nexus with the cause of death, whether the recovery is admissible in evidence. It is also worthwhile to observe that father of the deceased PW-5 Jeeva specifically stated in the cross-examination that I met Manjula before 2 years and further said that before 15 days from the date of death Kanti Lal (son-in-law) came at Himmatnagar to meet me. Meaning thereby, there is no allegation with regard to dowry by the father of deceased. The allegations are based upon presumption only which is not supported by any other evidence. A question was put to the Investigating officer why investigation was not made from the children of deceased and accused appellant, it is submitted by him that they were not having any knowledge about incident. In the cross-examination, the Investigating Officer PW-11 Govind Singh stated that:- ^^vfHk;qDr dkfUryky fookfgr O;fDr gSA mlds cPps cPph gSA ;g lgh gS fd dkfUryky ds cPpksa dks eSaus xokg ugha cuk;k gSa D;ksafd mu cPpksa dks ?kVuk dh dksbZ tkudkjh ugha gSA bldh eSaus iwNrkN ugha dh dkfUryky ds cPps fu;fer :i ls mlds lkFk jgrs gksA ;g lgh gS fd iRFkj ij [kwu ns[kus ls utj ugha vk jgk FkkA ;g lgh gS fd tIr fd;k x;k iRFkj o frdksuk FkkA eqyfte ds dCts ls tIr fd;k x;k cfu;ku ij [kwu yxk gqvk FkkA ;g dguk xyr gS fd eqyfte fnekxh rkSj ij detksj gksA ;g lgh gS fd eqyfte ds gkFk iSjksa ij dksbZ pksV ds fu'kku ugha FksA ;g lgh gS fd eqyfte us tIr'kqnk iRFkj dks [kqys LFkku ls cjken djok;k FkkA ;g Hkh lgh gS fd tIr 'kqnk iRFkj nwljs iRFkjksa dh HkkWafr gh FkkA** Upon considering the aforesaid statement of Investigating Officer coupled with the FSL report, we are of the opinion that fact of having blood upon Baniyan and stone is not proved by the prosecution but as per allegation of prosecution witnesses injury was inflicted by the accused appellant to the deceased. In the written F.I.R. submitted by Kava it is specifically mentioned by him that first information was given to him by Vella S/o Sega Pondar but the said witness has not been produced as witness by the prosecution, therefore, in absence of statement of this material witness, the whole prosecution story became doubtful. It was the duty of the prosecution to produce witness Vella before the learned Trial Court to prove the prosecution case. 19. In view of the above discussion, it emerges from the entire record that whole prosecution case is based upon circumstantial evidence but it has not been proved by leading reliable and cogent evidence. In the case of Shared Birdichand (supra) the hon'ble Supreme Court held that no-one can be convicted on the basis of mere suspicion. It is also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety. Here in this case, there is no direct evidence against the accused appellant. Further no blood was found upon Baniyan or the stone which is said to be recovered as per information given by the accused appellant, so also, both the witnesses of recovery turned hostile and as per post mortem report (Ex.P-9) dated 1.7.2007 cause of death was asphyxia because of throttling but prosecution has not come out with the case that first injury was caused by stone and, thereafter, throttling was committed by the accused appellant. 20. Admittedly, four children and other family members were residing in the family of accused appellant Kanti Lal and deceased Manjula but none of the family member produced as witness in the trial to prove the prosecution case. The accused appellant was present when complainant and other family member reached on spot. 20. Admittedly, four children and other family members were residing in the family of accused appellant Kanti Lal and deceased Manjula but none of the family member produced as witness in the trial to prove the prosecution case. The accused appellant was present when complainant and other family member reached on spot. The witness PW-3 Thawara uncle of the deceased categorically stated in the cross-examination that:- ^^iqfyl c;ku iz0Mh0 1 dk Hkkx , ls ch vkt lqcg----------dj x;k gS c;ku dk Hkkx eSaus iqfyl dks ugha fy[kok;kA osyk dkfUr ds iM+kSl esa jgrk gSA ;g lgh gS fd ge tc ekSds ij igqaps rc rd xkWao okys vkSj iqfyl okys ekSds ij vk pqds FksA dkfUryky Hkh ogha ij cSBdj jks jgk FkkA dkfUryky ls geus dksbZ ckr ugha dh FkhA ;g lgh gS fd ;fn ekSrk.kk fey tkrk rks ge ;g eqdnek ugha djrsA** Upon perusal of the aforesaid statement it is obvious that neither Vella was produced before the Court and this witness stated that in the event of payment of Motana, they would not have submitted any F.I.R. 21. In the totality of circumstances, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt. 22. On the basis of above discussion, we are of the opinion that the entire prosecution case which is relied upon by the learned Trial Court there are serious doubts because complete chain of circumstances so as to arrive with the finding that accused appellant is guilty for committing offence is not complete. Therefore, while following the adjudication made by the Hon'ble Supreme Court in the case of Sharad Birdichand (supra), the accused appellant is entitled for benefit of doubt. 23. Consequently, the instant cr. appeal is allowed. The judgment dated 17.8.2007 passed by the learned Addl. District and Sessions Judge (FT) No. 3, Udaipur camp Salumbar in Sessions Case No. 48/2007 convicting and sentencing the accused appellant Kanti Lal for the offence under Section 302 I.P.C. is hereby quashed and set aside. The accused appellant Kanti Lal may be released forthwith, if not needed in any other case. 24. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs. The accused appellant Kanti Lal may be released forthwith, if not needed in any other case. 24. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- and a surety bond in the like amount each, before the learned Trial Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.