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2017 DIGILAW 2152 (RAJ)

Jagdish v. State of Rajasthan

2017-10-05

GOVIND MATHUR, VINIT KUMAR MATHUR

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JUDGMENT : Govind Mathur, J. By the judgment dated April 25, 2011, learned Additional Sessions Judge (Fast Track) No. 1, Bikaner recorded conviction of appellant Shri Jagdish for an offence punishable under Section 302 Indian Penal Code and awarded sentence to undergo life term imprisonment with fine stipulation. Under the same judgment accused Jagdish, Umaram and Smt. Kesar Devi were acquitted from the charge relating to commission of an offence punishable under Section 304-B Indian Penal Code. 2. The facts relevant to adjudicate instant appeal are that one Shri Rajuram submitted a written report on 4.6.2009 at 09:00 AM at Police Station Loonkaransar with assertion that his father died about 19 years earlier, therefore, he and his sister Saraswati were residing with their maternal grand father Shri Surjaram resident of Kapurisar. About three years earlier his sister Saraswati entered into a wedlock with Shri Jagdish son of Umaram, resident of Malkisar Chhota and at the time of marriage a reasonable dowry was given. In the intervening night of 3rd and 4th June, 2009 at about 00:00 hours Shri Surjaram received a telephonic message from Umaram that Saraswati is no more. In morning Rajuram, Dhuraram, Rameshwar, Pannaram, Ramkumar, Malluram and Nanuram came to Malkisar Chhota Dhani, the residence of Umaram, where dead body of Saraswati was lying on floor. They noticed ligature marks and abrasions on neck. Apprehending killing of Saraswati for the demand of dowry the report was submitted. 3. On basis of the report aforesaid a case was lodged and a report was filed before the competent court as per provisions of section 173 Code of Criminal Procedure, 1973. After hearing the accused appellant he was charged for an offence punishable under Section 304-B Indian Penal Code and in alternative for commission of an offence punishable under Section 302 Indian Penal Code. Other accused Umaram and Smt. Kesar Devi were charged for commission of offence punishable under Section 304-B Indian Penal Code. On denial of the charge by the accused persons the trial commenced. 4. The prosecution supported its case with the aid of the evidence adduced by Shri Jagdish Chandra Kukna (PW-1), Rajuram (PW-2), Ramlal (PW-3), Deendayal (PW-4), Shishupal (PW-5), Bhagirath (PW-6), Jainarain Meena (PW-7), Kamla (PW-8), Dhuraram (PW-9) and Dungarram (PW-10). The documents prepared during the course of investigation Ex.P/1 to Ex.P/21 too were exhibited. 4. The prosecution supported its case with the aid of the evidence adduced by Shri Jagdish Chandra Kukna (PW-1), Rajuram (PW-2), Ramlal (PW-3), Deendayal (PW-4), Shishupal (PW-5), Bhagirath (PW-6), Jainarain Meena (PW-7), Kamla (PW-8), Dhuraram (PW-9) and Dungarram (PW-10). The documents prepared during the course of investigation Ex.P/1 to Ex.P/21 too were exhibited. Opportunity was given to the accused persons to explain the adverse and incriminating circumstances against them in prosecution evidence. All the accused persons denied the charges with assertion that they were falsely implicated in the case concerned. A Forensic Science Laboratory Ex.C/1 was subsequently exhibited. The accused were confronted about that too subsequently. In defence, documents Ex.D/1 to Ex.D/4 were exhibited. 5. Learned trial court, after examining the entire evidence, acquitted the accused persons from the charge relating to commission of offence punishable under Section 304-B Indian Penal Code by extending benefit of doubt, but recorded conviction of appellant Jagdish for an offence punishable under Section 302 Indian Penal Code. Learned trial court, while recording conviction of accused Jagdish, mainly relied upon provisions of section 106 of Indian Evidence Act as no explanation was extended about the facts those could have been under special knowledge of the appellant. 6. In appeal, the argument advanced by learned counsel for the appellant is that the trial court erred while recording conviction of the appellant by invoking provisions of section 106 of Indian Evidence Act as the prosecution utterly failed to lay down any evidence to connect the appellant with the crime in question. It is asserted that though as per provisions of section 106 of Indian Evidence Act, if any fact is especially within the knowledge of a person, the burden of proving that fact is upon him but that does not shift the burden of proof which is upon the prosecution. It is asserted that whatever evidence adduced by the prosecution pertains to the offence punishable under Section 304-B Indian Penal Code and no material is available on record to establish commission of an offence punishable under Section 302 Indian Penal Code. 7. Heard learned counsels and examined the record minutely. 8. As per the medical evidence available on record, the cause of death of Smt. Saraswati was asphyxia due to strangulation. The injuries noticed on the corpus of deceased are as follows:- "1. Abrasion 41/2" x "situated on right side of neck just below mandible centrally. 2. 7. Heard learned counsels and examined the record minutely. 8. As per the medical evidence available on record, the cause of death of Smt. Saraswati was asphyxia due to strangulation. The injuries noticed on the corpus of deceased are as follows:- "1. Abrasion 41/2" x "situated on right side of neck just below mandible centrally. 2. Abrasion 1" x "situated" above injury No. 1. 3. Multiple abrasion of x "situated on left side of neck just below mandible. On internal examination neck Hyoid bone fractured. Tracheal ring fractured. Travasated blood present around trachea. All injuries are ante mortem in nature." 9. The details pertaining to the cause of death and the injuries noticed in the medical evidence are sufficient to arrive at the conclusion that death of Smt. Saraswati was homicidal one. As already stated, the accused persons other than Jagdish (present appellant) were charged only for commission of offence punishable under Section 304-B Indian Penal Code and by the judgment impugned learned trial court acquitted them. No charge for commission of offence punishable under Section 302/34 Indian Penal Code at all was made against them. On going through the entire evidence, we have noticed that the prosecution did not produce any evidence to establish the crime of murder but for demand of dowry only. 10. Shri Rajuram (PW-2), brother of deceased, stated that his sister was not happy at matrimonial home and she was regularly making complaints about demand of dowry by her father-in-law, mother-in-law and husband. As per this witness, deceased Smt. Saraswati on 3.6.2009 had conversation with him on cellular phone. As per this witness, at that time too Saraswati stated that her father-in-law, mother-in-law and husband were torturing and beating her. He communicated this fact to his maternal uncle Shri Dhuraram and he consoled to take certain steps, but immediately thereafter he came to know about death of Saraswati. This witness has not said anything beyond that. In cross examination, this witness though mentioned the details about the house of Saraswati and the place where her dead body was lying, but nothing about the fact that special knowledge pertaining to the facts relating to crime in question would have been available only with Jagdish. This witness quite specifically stated that the dead body was lying in open compound encircled by a wall. 11. This witness quite specifically stated that the dead body was lying in open compound encircled by a wall. 11. Shri Ramlal (PW-3), uncle of deceased Saraswati, too stated about harassment extended to Saraswati by her father-in-law, mother-in-law and husband. 12. Smt. Kamla (PW-8), mother of deceased Saraswati, also provided details pertaining to the demand of dowry on several occasions by father-in-law, mother-in-law and husband of deceased Saraswati. In cross examination, this witness accepted that she never witnessed any ill-treatment or beating to Saraswati by her husband. 13. Shri Dhuraram (PW-9), maternal uncle of deceased Saraswati, also detailed the facts in the same line. Nothing has been stated by him about special knowledge that would have been with accused appellant Jagdish only. 14. Learned trial court, as already stated, recorded conviction of accused appellant by invoking provisions of section 106 of the Indian Evidence Act. 15. The Supreme Court in State of Rajasthan v. Kashi Ram, reported in (2006)12 SCC 254 , recapitulated the principles governing section 106 of the Indian Evidence Act as under:- "The provisions 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. 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. 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 or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain." 16. We have examined the facts available in light of the law laid down by the Apex Court as above. 17. In the case in hand, there is no doubt that no direct evidence could have been available to establish the charge levelled against the accused, however, an effort should have been made by the prosecution to establish the special knowledge of facts that could have been available either with accused appellant. At the cost of repetition, we would like to state that no care was taken by the prosecution and also by the trial court to charge the other accused persons viz. Umaram and Smt. Kesar Devi for the offences punishable under Sections 302/34 and 120-B Indian Penal Code, as such it is only the appellant with regard to whom evidence to prove the charge of murder was to be adduced. 18. It is the fact accepted that the dead body of Smt. Saraswati was found in open place where access was available to the present accused as well as other family members viz. Umaram and Smt. Kesar Devi. No material is available on record to conclude that it was the appellant accused only who could have special knowledge of the facts being in solitary company of deceased. No material is available on record even to establish that the deceased was lastly seen with the accused appellant. As a matter of fact the prosecution failed to discharge the burden casted upon it to prove the charged offence. No material is available on record even to establish that the deceased was lastly seen with the accused appellant. As a matter of fact the prosecution failed to discharge the burden casted upon it to prove the charged offence. On placing the evidence available at the scale settled by the Supreme Court, we are of the considered opinion that the trial court could have not recorded conviction of the accused appellant in present set of facts where the prosecution failed to discharge its burden to prove charge. The trial court without having adequate material, shifted the entire burden upon the accused to defend himself by giving explanation about the circumstances by disclosing special knowledge as required under Section 106 of the Indian Evidence. Act. 19. In view of whatever stated above, this appeal deserves acceptance, hence, the same is allowed. The conviction of the appellant recorded under the judgment dated 25.4.2011, passed by Additional Sessions Judge (Fast Track) No. 1, Bikaner in Sessions Case No. 54/2009, is set aside. Consequently, the sentence awarded too is set aside. The appellant is acquitted from the charge of committing offence under Section 302 Indian Penal Code. Let he be released from State custody forthwith, if not required in any other case.