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Rajasthan High Court · body

2016 DIGILAW 49 (RAJ)

State of Rajasthan v. Basu

2016-01-07

GOPAL KRISHAN VYAS, P.K.LOHRA

body2016
JUDGMENT : Gopal Krishan Vyas, J. The instant cr. leave to appeal has been filed by the State of Rajasthan under Section 378(iii) and (i) Cr.P.C. against the judgment dated 11.8.2014 passed by the Sessions Judge, Udaipur in Sessions Case NO.145/2013 by which the learned trial court acquitted the respondent Basu from the charge levelled against him under Section 302 IPC. 2. As per the brief facts of the case, on 1.4.2013 at about 4.30 pm PW-1 Fata Kher filed a written report before the SHO Police Station Kotda in which it was alleged that on 31.3.2013 his newphew Bashu and his wife Mazi went to Kotda to do some work and he returned back in the night at about 12.00 pm and informed that after committing murder of his wife he has thrown her dead body in the Aabaliya Wala Khada Koliya river, therefore, you may leave away the house and he is also leaving the house. 3. In the morning at about 7.00 am they went at river, but dead body of the deceased Mazi was not found. Thereafter, upon search near about 300 meters far from river, dead body of Mazi was found. She was not wearing cloths upon upper side of the body. It is also stated in the FIR that injury upon head was also found upon the dead body of Mazi. Bashu respondent was having doubt with regard to illegal relation of his wife Mazi with other person, therefore he killed his wife and thrown in the river. 4. Upon aforesaid information, the SHO Police Station Kotda registered FIR no.32/2003 (Ex.P/2) under Section 302 IPC and after preparing the site plan (Ex.P/5) and conducting other investigation arrested respondent vide arrest memo (Ex.P/17) and upon his information (Ex.P/22) the axe was recovered from the house of the respondent vide Ex.P/14. The axe was sent for chemical examination to the Forensic Science Laboratory vide Ex.P/18 and vide Ex.P/30 a report was given by the FSL in which human blood of group 'B' was found. The statements of prosecution witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation, challan was filed against the respondent on the basis of circumstantial evidence under Section 302 IPC. 5. The learned Magistrate committed the case for trial to the Sessions Judge, Udaipur where trial took place. 6. The statements of prosecution witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation, challan was filed against the respondent on the basis of circumstantial evidence under Section 302 IPC. 5. The learned Magistrate committed the case for trial to the Sessions Judge, Udaipur where trial took place. 6. In the trial, statements of 9 prosecution witnesses were recorded and 23 documents were exhibited, thereafter, statements of respondent was recorded under Section 313 Cr.P.C. in which he denied all the allegations levelled by the prosecution witnesses and said that he has been falsely implicated in this case. No evidence was produced in defence. 7. In the trial PW - 1 Fata Kher, author of the FIR, PW - 2 Smt. Baby and PW - 7 Prem Chand all turned hostile and did not support the prosecution case, therefore, the learned trial court acquitted the respondent from the charge levelled against him under Section 302 IPC vide judgment dated 11.8.2014. 8. In this cr. leave to appeal, the learned Public Prosecutor is challenging the validity of the judgment on various grounds. 9. Learned Public Prosecutor vehemently submits that prosecution has proved its case beyond reasonable doubt while placing on record evidence, but the learned trial court disbelieved the testimony of witnesses, therefore, it is a fit case for granting leave to appeal against the judgment. 10. Learned Public Prosecutor further argued that Mazi was wife of respondent and she was living with the respondent, therefore, obviously, how death was caused was to be explained by the respondent, but as per the evidence collected in the investigation by the police it is obvious that Mazi wife of respondent was murdered by him, but the learned trial court committed serious error of fact and law in not consider the case of the prosecution in its entirety. PW - 4 Dr. Shanker Lal Chouhan stated before the court that there were injuries on the body of the deceased Maxi caused by sharp edged weapon, therefore, she died due to excessive bleedings. PW - 4 Dr. Shanker Lal Chouhan stated before the court that there were injuries on the body of the deceased Maxi caused by sharp edged weapon, therefore, she died due to excessive bleedings. In the FSL report the blood group 'B' was found upon the axe which is said to be recovered from the respondent, therefore, there is ample evidence on record with regard to commission of offence by the respondent, but the learned trial court disbelieved the prosecution story in spite of the fact that there is evidence of extra judicial confession which is stated by the complainant himself. Therefore, leave to appeal may kindly be granted. 11. Learned counsel appearing on behalf of the respondent submits that no error has been committed by the learned trial court in acquitting the respondent from the charge levelled against him because the author of the FIR PW - 1 Fata Kher, PW - 2 Smt. Baby, PW - 3 Kapuriya and PW - 7 Prem Chand turned hostile and these witnesses were the witnesses for extra judicial confession. Therefore, there is no question to reverse the finding given by the learned trial court for acquittal. More so, it is a case in which prosecution has failed to prove its case beyond reasonable doubt. Therefore, in absence of any trustworthy and cogent evidence, there was no option for the learned trial court except to acquit he respondent from the charge levelled against him is 302 IPC. 12. With regard to the argument of the learned Public Prosecutor that blood group 'B' was found upon the axe therefore the respondent is guilty for offence, it is submitted that the said fact is not sufficient to hold respondent guilty for offence because prosecution has failed to prove the fact that blood group of deceased was also of 'B' group. None of the articles or cloths of the deceased were sent for chemical examination, therefore, the argument of the learned Public Prosecutor is totally baseless and have no foundation to stand. In view of the above, it is submitted that no case is made out to grant leave to appeal. 13. None of the articles or cloths of the deceased were sent for chemical examination, therefore, the argument of the learned Public Prosecutor is totally baseless and have no foundation to stand. In view of the above, it is submitted that no case is made out to grant leave to appeal. 13. After hearing the learned counsel for the parties, first of all it is required to be observed that four witnesses, PW - 1 Fata Kher, PW - 2 Smt. Baby, PW - 3 Kapuriya and PW - 7 Prem Chand turned hostile and challan was filed on the basis of evidence of extra judicial confession before them, therefore, it is obvious that prosecution has failed to prove the case against the respondent on the basis of extra judicial confession. It is true that PW - 4 Dr. Shanker Lal gave its report that deceased died due to injuries caused upon her body by sharp edged weapon but there is no direct evidence to prove the fact that respondent inflicted those injuries. Further, the axe which is said to be recovered vide Ex.P/13 from the house of the deceased was sent for chemical examination to the FSL, but it is also one of the important fact that none of the blood stained articles of the deceased or the cloths were sent to the FSL to prove that blood group of deceased was also of 'B' group. Meaning thereby, there is no trustworthy evidence on record to prove the allegation of murder against the respondent. 14. Upon overall assessment of evidence, we are of the opinion that the finding given by the learned trial court for acquittal of the respondent does not require any interference because all the witnesses of extra judicial confession including complainant PW - 1 Fata Kher turned hostile and did not support the prosecution case and no other evidence is on record to connect the respondent with the alleged crime. 15. In view of the above, we are not inclined to grant leave to appeal against the judgment dated 11.8.2014 passed by the learned Sessions Judge, Udaipur in Sessions Case No.145/2013. Therefore, the instant cr. leave to appeal is hereby rejected.