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2018 DIGILAW 1882 (RAJ)

Hanumanram v. State of Rajasthan

2018-09-10

NIRMALJIT KAUR, VINIT KUMAR MATHUR

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JUDGMENT Nirmaljit Kaur, J. - The present appeal filed by the appellant, while in jail, was received by post and was accordingly registered as such. The same has been preferred against the order and judgment dated 18.06.2010 passed by the Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No.04/2009, whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine to further undergo one year's Simple Imprisonment. 2. Shri Sheetal Kumbhat was appointed as Amicus Curiae to assist the Court on behalf of the appellant being unrepresented before this Court. 3. As per the prosecution story, on the night of 22.09.2008, a written report was received at the Police Station Surpalia, district Nagaur which was signed both by PW-10- Bhanwarlal - complainant and PW-7 Pukhraj. As per the said written report, complainant - Bhanwarlal as usual was sleeping in the courtyard of his house when he heard the loud crying of his grand-daughter Guddi aged 5 years who was sleeping with her father Hanuman Ram and mother Phephi on the terrace. Bhanwarlal accordingly ran inside the house and woke up his wife Jhamku and told her to go and see on the terrace as to why she was crying. His wife Jhamku went on the terrace and found that their son Hanuman Ram was missing and his wife Phephi was lying dead. She came down bringing the little girl along with her and told Bhanwarlal of what she had seen. She also informed that blood was oozing out of the mouth of Phephi and Hanuman Ram had run away after killing his wife Phephi. Thereafter, Bhanwarlal went to the house of Sarpanch Sugnaram along with his brothers and told him the entire story. The Sarpanch accordingly informed the police on phone. A written report Ex.P/3 signed by complainant and son of Sarpanch was given to the police. An FIR was accordingly registered on the basis of the said written report on 22.09.2008 at 05:15 p.m. 4. Complainant-Bhanwarlal appeared as PW-10. The written report was duly signed by PW-7 Pukhraj. Pukhraj is the son of Sarpanch Sugnaram to whose house Bhanwarlal went to inform about the incident. The mother of the accused, Smt. Jhamku appeared as PW-8 and corroborated the version of the written report Ex.P/3. 5. Mr. Complainant-Bhanwarlal appeared as PW-10. The written report was duly signed by PW-7 Pukhraj. Pukhraj is the son of Sarpanch Sugnaram to whose house Bhanwarlal went to inform about the incident. The mother of the accused, Smt. Jhamku appeared as PW-8 and corroborated the version of the written report Ex.P/3. 5. Mr. Sheetal Kumbhat, learned Amicus Curiae, while praying for setting aside the order and judgment dated 18.06.2010 passed by Additional Sessions Judge (Fast Track), Nagaur vide which the appellant was convicted under Section 302 IPC, submitted that it was a case of no evidence. The informant Bhanwarlal had turned hostile. There was no eye witness. The neighbours PW-1 Jethi Devi, PW-2 Shanti and PW-3 Kesar Devi were produced by the prosecution who stated that there was no dispute in the family. All were staying happily together, hence, there was no motive for Hanuman Ram to kill his wife. Moreover, PW-1 Jethi Devi, PW-2 Shanti and PW-3 Kesar Devi had further stated that accused Hanuman Ram was insane. Hence, Hanuman Ram being insane could not have been tried and nor can he be sentenced for the offence committed by him, especially when the Investigating Officer Bhagwan Singh who appeared as PW-23 too has admitted that he was insane. Since it was admitted that he was insane, there was no requirement for the appellant to prove the same. 6. After hearing learned counsel for the parties as well as going through the record of the case with the assistance of the learned counsel for the parties, we find no reason to disagree or set aside the order and judgment dated 18.06.2010. 7. The accused in the present case is the husband of the deceased. The complainant Bhanwarlal, as is evident from the above, is none other than the father of the accused -Hanuman Ram. The report on the basis of which the FIR was registered is a written report. The said report is Ex.P/3. The same is duly signed by Bhanwarlal and Pukhraj. Bhanwarlal appeared as PW-10 and corroborated the written report submitted by him except for the version where he had said that his daughter-in-law Phephi was killed by his son Hanuman Ram. 8. No doubt, Bhanwalal did not see Hanuman Ram killing his wife Phephi with his own eyes but the same does not change the complexion of the present case. Bhanwarlal appeared as PW-10 and corroborated the written report submitted by him except for the version where he had said that his daughter-in-law Phephi was killed by his son Hanuman Ram. 8. No doubt, Bhanwalal did not see Hanuman Ram killing his wife Phephi with his own eyes but the same does not change the complexion of the present case. It was admitted by him that both his son Hanuman Ram and his wife Phephi were sleeping on the terrace. He admitted the written report. It was also admitted that the place of the incident was the terrace of his house which was verified by him and the site plan was also prepared in his presence. Besides, Bhanwarlal had also got his statement recorded under Section 164 Cr.P.C., 1973 The said statement dated 13.10.2008 was taken on record as Ex.P/14. The said statement is identical to the written report. He admitted that the said statement was got recorded by him before the Magistrate. It is admitted by him that at that point of time, he had stated that his daughter-in-law Phephi was killed by his son Hanuman Ram. The mother of the accused, PW-8 Jhamku also fully corroborated the prosecution story and admitted that her son and duaghter-in-law were sleeping on the terrace on the date of the incident. Similarly, Pukhraj s/o Sugna Ram, Sarpanch appeared as PW-7. The complainant Bhanwarlal had immediately gone to the house of the Sarpanch and told him about the entire incident which was reduced in writing. He too verified the written report Ex.P/3 which he admitted to having signed along with Bhanwarlal. The cause of death as per the Post Mortem Report (Ex.P/2) is Ashphyxia due to throttling. From the above, the following admitted facts have emerged : a) The place of incident is the house of the accused. b) The accused and the deceased along with the minor daughter were sleeping on the terrace. c) The complainant Bhanwarlal and Jhamku, father and mother of the accused respectively were also in the house. d) The time was 03:00 a.m. at night. e) There was no one else in the house. f) There is no other evidence of any other person entering the house. g) Hanuman Ram went missing after the incident. 9. c) The complainant Bhanwarlal and Jhamku, father and mother of the accused respectively were also in the house. d) The time was 03:00 a.m. at night. e) There was no one else in the house. f) There is no other evidence of any other person entering the house. g) Hanuman Ram went missing after the incident. 9. In these circumstance, the absence of eye witness is not fatal to the case in view of Section 106 of the Evidence Act which is duly attracted in the present case where only the occupants of the house had the knowledge and were thus liable to explain the death. 10. In almost similar set of circumstances, the Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681 held as under : "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 11. The Supreme Court while relying on the aforesaid judgment rendered in the case of Trimukh Maroti Kirkan (supra) dismissed the appeal in the case of Jamnadas and others vs. State of M.P. reported in AIR 1963 MP 106 , wherein the deceased died while living in the house of the appellants after her marriage with the appellant and since the appellants failed to disclose as to how the deceased had died, which is especially in their knowledge, chain of circumstances against the appellants was found to be complete. The Court observed that "No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused." 12. In the present case as discussed above, it is proved on record that the deceased was murdered inside the house and her body was found in the house itself. It is nobody's case that any outsider came in the house. Thus, the husband who was sleeping next to her must explain and failure to do so completes the chain of events. 13. The argument that there was no motive also does not help. PW-11 Amra Ram, brother of the deceased, Pw-18 Naina Ram, PW-19 Nema Ram, PW-20 Rugharam-father of the deceased, PW- 21 Jawana Ram and PW-22 Jhankari appeared and submitted that Hanuman Ram and Phephi used to fight now and then every 10-15 days. As per the father of the deceased, she was being regularly harassed. As per PW-19, Nema Ram, he had on an earlier occasion rescued the deceased while she was being beaten. 14. The last argument that the appellant was insane does not help the appellant in any manner. There is evidence on record except that oral evidence which is in the form of the statements of the father and the mother of the accused and neighbours PW-1 Jethi Devi, PW-2 Shanti and PW-3 Kesar Devi which are on the face of it an improvement from the earlier versions before the police. There is no mention of the appellant being insane either in the written report or in the statement of the father under Section 164 Cr.P.C., 1973 A feeble attempt seems to have been made by the father and the mother of the accused as a last resort to try and save their son. Their sympathy towards the appellant being parents even though they were prosecution witnesses is understandable. Similarly, the statements of the neighbours to the same effect also fall short in the absence of any other medical evidence to support the said version. Their sympathy towards the appellant being parents even though they were prosecution witnesses is understandable. Similarly, the statements of the neighbours to the same effect also fall short in the absence of any other medical evidence to support the said version. As per Section 105 of the Evidence Act, the burden to prove that the case of the accused comes within the exception is upon the accused who takes the plea of the existence of such circumstances. The Apex Court in the case of Mariappan vs. State of Tamil Nadu reported in JT 2013 (8) SC 522 in no uncertain terms has laid down that "though the burden of proving an offence is always on the prosecution and never shifts, however, the existence of circumstances bringing the case within the exception under Section 84 Indian Penal Code lies on the accused." 15. In the present case, in case the appellant was insane, there was nothing to stop them from filing an appropriate application before the Court seeking his medical examination. No such application was ever moved. The Court too did not find the appellant insane in any manner. In fact, the Court examined the accused under section 313 of the Cr.P.C., 1973. He gave no sign of being insane. The trial court too recorded his satisfaction to the said extent that the accused was not insane. 16. In view of the above, we find no ground to interfere in the well reasoned judgment and order dated 18.06.2010 passed by the Additional Sessions Judge (Fast Track), Nagaur. 17. The appeal is, accordingly, dismissed.