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2016 DIGILAW 1546 (RAJ)

Meha Gabhar v. State of Rajasthan

2016-10-25

GOPAL KRISHAN VYAS, KAILASH CHANDRA SHARMA

body2016
JUDGMENT : 1. In this Cr. Jail Appeal filed by the accused appellant Meha S/o Lalu from Central Jail, Udaipur, the accused appellant has challenged the judgment dated 5.9.2008 passed in Sessions Case No. 68/2008 by which the learned Sessions Judge, Udaipur held accused appellant guilty for 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 three months pie imprisonment. 2. As per brief facts of the case on 12.1.2008 PW-5 Nana S/o Lala gave oral information before the SHO Police Station Kothada that marriage of his daughter Atri was solemnized 12 years back with Meha (accused appellant) resident of age Viyol. From the wedlock of his daughter Atri with accused appellant Meha, three children were born. The husband of Atri was habitual drinker and having doubt upon the character of Atri, therefore, he was usually quarrelling with her. The relation of Atri with her husband were not cordial, therefore, she as living with her father complainant Nana since Deepwali. As per information ore 5 days of incident, the accused appellant Meha took his wife forcibly for the purpose of cutting "Tuwar Dal" in the agricultural field at Viyol, but on 11.1.2008 the complainant got information that his daughter Atri died. 3. After receiving information the complainant and his brother Resha, so also other villagers went to the village Viyol at the home of accused appellant, where they saw that dead body of Atri was lying on floor. Upon inspection of the body is found that there were injuries upon both the sides of neck and whole body was sustained with blood. At the house of Atri one Ratu son of Koopa informed that on 10.1.2008 in the morning at 4-5 am the accused appellant Meha caused injuries by knife upon the neck of deceased Atri and due to those injuries she died. 4. It is also informed that Lalu father-in-law of Atri was sleeping inside the house. Upon above verbal information given by Nana was sent to the Police Station Kothada for registration of the F.I.R., where F.I.R. No. 4/2008 was registered against the accused appellant under Section 302 I.P.C. and investigation was commenced by the SHO, Police Station, Kothada. 5. 4. It is also informed that Lalu father-in-law of Atri was sleeping inside the house. Upon above verbal information given by Nana was sent to the Police Station Kothada for registration of the F.I.R., where F.I.R. No. 4/2008 was registered against the accused appellant under Section 302 I.P.C. and investigation was commenced by the SHO, Police Station, Kothada. 5. After completion of investigation, the charge-sheet was filed against the used appellant in the Court of Judicial Magistrate, Kotada under Section 302 LP.C. on 3.3.2008. The offence under Section 302 I.P.C. was trible by Sessions Court, therefore, the learned Magistrate committed the case for trial to the Sessions Judge, Udaipur. 6. The learned Sessions Judge after hearing the arguments for framing charge, framed the charge under Section 302 I.P.C. against appellant, but the accused appellant denied allegation levelled against him and prayed for trial. 7. To prove the prosecution case, statements of 11 prosecution witnesses were recorded including PW-8 Dr. Prakash Chandra Sahlot and PW-11 Hanwant Singh Investigating Officer. 8. After recording statement of prosecution witnesses, statements under Section 313 Cr.P.C. of accused appellant were recorded, but accused appellant denied all the allegations made by the prosecution witnesses and did not produce any oral evidence in defence. 9. The learned Trial Court after hearing final arguments convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for life imprisonment with fine of Rs. 5,000/-. 10. The learned Counsel for the appellant vehemently argued that the finding given by the learned Trial Court so as to hold accused appellant guilty for alleged offence of murder is totally perverse and based upon wrong interpretation of law. It is also argued that the charge-sheet will be filed on the basis of testimony of eye-witnesses, but none of the eye-witnesses supported the prosecution case but the learned Trial Court while accepting the other evidence as circumstantial evidence, held accused appellant guilty on the ground that prosecution has proved its case beyond reasonable doubt. The learned Trial Court while taking presumption under Section 106 of the Evidence Act, 1972 held accused appellant guilty in absence of direct evidence. The learned Trial Court while taking presumption under Section 106 of the Evidence Act, 1972 held accused appellant guilty in absence of direct evidence. The said finding or the basis of presumption under Section 106 of the Evidence Act is not applicable in this case because charge-sheet has been filed on the basis of testimony of eye-witnesses, therefore, a patent error has been committed by the learned Trial Court so as to hold accused appellant guilty for offence under Section 302 I.P.C. 11. Learned Counsel for the appellant further submits that prosecution has miserably failed to prove the incident, so also, recovery of the weapon Chhuri (knife) at the instance of accused appellant, therefore, the judgment impugned deserves to be quashed because prosecution has failed to prove its case beyond reasonable doubt. 12. Per contra, learned Public Prosecutor submits that although the charge-sheet was filed on the basis of evidence of eye-witnesses Lalu, father of accused appellant and Ratu son of Koopa, but statement of these witnesses were recorded in the trial as PW-1 Ratu and PW-2 Lalu in which they turned hostile and did not support the prosecution case, other witness PW-5 Nana, father or the deceased and PW-6 Resha submitted that relationship of deceased Atri and accused appellant were not cordial and the accused appellant used to beat Atri therefore, she was residing with her father PW-5 Nana. 13. PW-8 Dr. Prakash Chandar Sahlot conducted post mortem of the body of the deceased Atri and as per his opinion the cause of death was injury caused upon the neck of the deceased. PW-9 Soma Lal is the witness who was working on the post of Constable and incharge of Malkhana. It is stated by him that SHO. Kotara gave forwarding letter to him to sent certain articles to FSL examination. The said communication with the articles were deposited by him in the office of Superintendent of Police, Udaipur from where after preparation of forwarding letter, four articles were deposited in the FSL Department, Udaipur on 17.1.2008. 14. PW-10 Deep Singh was working as Head Constable No. 73 at Police Station Kothara. He was in-charge of Malkhana. The said witness has accepted that he has deposited three packets in Malkhana on 12.1.2008 and one packet was deposited in Malkhana on 13.1.2008. 15. 14. PW-10 Deep Singh was working as Head Constable No. 73 at Police Station Kothara. He was in-charge of Malkhana. The said witness has accepted that he has deposited three packets in Malkhana on 12.1.2008 and one packet was deposited in Malkhana on 13.1.2008. 15. PW-11 Hanwant Singh is investigating officer, has proved the entire case, therefore, the finding of the learned Trial Court cannot be termed as erroneous because in spite of the fact that eye-witnesses turned hostile, the prosecution has proved its case beyond reasonable doubt against the accused appellant on the principle of presumption under Section 106 of the Evidence Act because on the date of incident in the house of the accused appellant, deceased Atri was found dead having injury upon her neck, therefore, there is no force in this appeal, hence, this appeal may kindly be dismissed. 16. After hearing learned Counsel for the parties, we have considered the arguments and perused the entire evidence on record. 17. Undisputedly, in criminal case it is the duty of the prosecution to prove its case beyond reasonable doubt. In this case, the charge-sheet was filed on the basis of testimony of eye-witnesses PW-3 Lalu, father of accused appellant and father-in-law of deceased Atri, so also, upon evidence of PW-1 Ratu son of Koopa. Both these witnesses turned hostile and did not support the prosecution case but the charge-sheet was filed on the basis of their statements. In view of the above, it is obvious that charge-sheet was not filed on the basis of circumstantial evidence that husband and wife were residing together and wife found death in the morning, therefore, principle of presumption under Section 1106 of the Evidence Act will not apply. 18. Upon consideration of the arguments and finding given by the learned Trial Court, we are of the opinion that there is no doubt that conviction can be made on the basis of presumption if the case is based upon circumstantial evidence, but here in this case, the charge-sheet was filed on the basis of testimony of eye-witnesses PW-1 Ratu and PW-3 Lalu, but both these witnesses turned hostile. The whole investigation was conducted by the prosecution on the basis of oral information given by the PW-3 Lalu but PW-3 Lalu categorically stated before the Court that I don't know how Atri died, so also, I have not seen any person to cause injury to her. We have also perused the statement of PW-1 Ratu. The said witness specifically stated before the Court that at the time of incident I was at my residence. Though I have seen the dead body of Atri in her bouse where Lalu was crying, but I don't know how Atri died. The said witness categorically denied before the Court that no statement was given by him to the police. 19. PW-2 Kesara completely denied recovery in front of him and specifically said that I was directed by the police to put my thumb impression but what was written in the recovery memo, I don't know. 20. PW-4 Uda, the second witness of recovery of knife stated before the Court as follows:- ^^e`rdk dh yk'k esgk ds ?kj esa gh FkhA iqfyl okyksa us ekSds ls [kwu fy;k FkkA iqfyl okyksa us ekSds ls Nqjh yh Fkh] ysfdu eSaus ns[kh ugha FkhA Nqjh cjkenxh dh fy[kki<+h dh Fkh] tks izn'kZ ih0&4 gS] ftl ij , ls ch esjs gLrk{kj gSA QnZ cjkenxh LFky izn'kZ ih0&5 gS] ftl ij , ls ch esjs gLrk{kj gSaA e`rdk dh e`R;q dSls gqbZ eq>s irk ughaA Nqjh dk iqfyl us D;k fd;k eq>s irk ughaA izfrijh{kk vfHk;qDr ds vf/koDrk }kjk%& ;g ckr lgh gS fd Nqjh fdruh eksVh Fkh & dSlh Fkh eq>s irk ugha gSA ;g ckr lgh gS fd iqfyl okys dgkWa ls Nqjh fudkydj yk;s eq>s irk ugha gSA ;g ckr lgh gS fd ftl fnu Nqjh yh Fkh] ml fnu esjs vykok vU; dksbZ ekStwn ugha FkkA ftu QnksZa ij eSaus gLrk{kj fd;s mudks eSaus i<+k ugha Fkk vkSj iqfyl us Hkh eq>s i<+dj ugha lquk;k FkkA** 21. Admittedly, PW-5 Nana, father of the deceased, is not eye-witness, who specially stated before the Court that I never went to the Police Station for registration of the F.I.R., but I was directed by the police to put my thumb impression. Admittedly, PW-5 Nana, father of the deceased, is not eye-witness, who specially stated before the Court that I never went to the Police Station for registration of the F.I.R., but I was directed by the police to put my thumb impression. The following statement is given in the cross-examination by the PW-5 Nana, which reads as under:- ^^;g ckr lgh gS fd js'kk esjk HkkbZ yxrk gSA esjh cPph dks esgk us ekjk bldh eq>s fdlh us lwpuk ugha nh] ysfdu usgk esjh cPph dks esjs ?kj ls ysdj x;k Fkk blfy, dgrk gwa fd esgk us gh esjh cPph dks ekjk FkkA tc eSa esjh cPph ds ?kj igqapk] ml le; ?kj esa 5&6 tus FksA tc eSa igqapk esgk ds ?kj dkSu&dkSu Fks eq>s /;ku ugha gSA iqfyl esa fjiksVZ ntZ djkus ds fy, eSa ugha x;k Fkk cfYd js'kk x;k FkkA izn'kZ ih0&6 fjiksVZ fdlus fy[kkbZ eq>s irk ugha gSA ;g lgh gS fd izn'kZ ih0&6 fjiksVZ esa D;k fy[kk gS] ;g Hkh eq>s irk ugha gSA ;g ckr lgh gS fd iqfyl okyksa us eq>s Fkkus ij cqykdj vaxwBk nsus ds fy, dgk Fkk] ftl ij eSaus vaxwBk fn;k FkkA eSa iqfyl ds lkFk ekSds ij Hkh ugha x;k FkkA iqfyl us esjs lkjs vaxwBk Fkkus ij djk;s FksA** 22. The witness PW-6 Resha stated before the Court that Meha murdered his wife Atri because he was having doubt upon his wife with regard to her character. No other evidence is on record to prove the said allegation. 23. We have perused the statement of PW-11 Hanwant Singh, the then SHO Police Station, Kotada. The SHO Police Station stated before the Court that PW-5 Nana appeared before him and gave oral information upon which F.I.R. (Ex.P-6) was registered, but Nana has categorically refused that he went before the SHO Police Station for registration of the F.I.R. More so, it is stated by him that for giving information Resha went to the Police Station and who has written F.I.R. (Ex.P-6) I don't know. 24. 24. In view of the fact that eye-witnesses turned hostile chain of other circumstances are completely missing so as to prove the allegation against the accused appellant, therefore, we are of the opinion that finding arrived at by the learned Trial Court on the basis of presumption under Section 106 of the Evidence Act, is not sustainable in law because charge-sheet was filed on the basis of testimony of eye-witness and the eye-witnesses PW-1 Ratu and PW-3 Lalu turned hostile, therefore, whole prosecution case became doubtful so as to hold accused appellant guilty for the offence under Section 302 I.P.C. 25. In view of the above, we have no hesitation to say that prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment dated 5.9.2008 passed in Sessions Case No. 68/2008 is not sustainable in law. 26. Consequently, this cr. jail appeal is hereby allowed and while giving benefit of doubt the judgment dated 5.9.2008 sentencing and convicting the accused appellant Meha for the offence under Section 302 I.P.C. by the learned Sessions Judge, Udaipur in Sessions Case No. 68/2008 is hereby quashed and set aside and the accused appellant is in jail, therefore, he be released forthwith, if not needed in any other case. 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.