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2018 DIGILAW 1956 (RAJ)

Om Prakash v. State of Rajasthan

2018-09-20

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Vinit Kumar Mathur, J. The instant criminal appeal has been filed by the appellant to challenge the judgment dated 14/12/2010 passed by the Additional Sessions Judge (Fast Track) Nagaur in Sessions Case No. 22/2009, whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 20,000/- in default of payment of fine, to further undergo six months simple imprisonment. 2. The fact narrated in the complaint lodged by Bhanwar Lal discloses that he is resident of Igyar. His sister Sugnai was married to accused Om Prakash son of Luna Ram Jat, R/o. Tarnau for last 20 years. She was in the matrimonial home for last 10-11 years. She had a son who was five years of age. His sister Sugnai was harassed and beaten by her husband Om Prakash, mother-in-law Radha and brother-in-law Babulal for last 4 to 5 years. Today, he received a call on which he went to Tarnau at 12 O' clock. When he went to Sugnai's house, she was sitting in the room upstairs in a state of fear. When he asked Om Prakash, he told that his sister quarrels with him and when he asked his sister Sugnai, she could not say anything under fear. He requested to send Sugnai along with him but Om Prakash refused. Thereafter, he and Shaitan Ram who accompanied him went back to their village at around 2 p.m. At around 5 p.m., he received an information that Sugnai has been killed. On getting this information, he along with his family members including Tulcharam, Ram Prasad, Narayan Ram and Bhanwar Lal Manda went to Tarnau. He saw Sugani was lying dead on a cot. She was having injury marks in her neck. She had been killed by her husband, mother-in-law, and brother-in-law by beating. 3. On this information, a formal F.I.R. No.13/2009 was registered and investigation was conducted and challan was filed under Section 302 IPC against the accused appellant. 4. Learned trial Court framed charges against the accused appellant for the offence under Section 302. The accused denied the same and preferred trial in the matter. 5. During the trial, as many as 28 prosecution witnesses were examined and in all 33 documents were exhibited. 6. 4. Learned trial Court framed charges against the accused appellant for the offence under Section 302. The accused denied the same and preferred trial in the matter. 5. During the trial, as many as 28 prosecution witnesses were examined and in all 33 documents were exhibited. 6. Thereafter, accused appellant was examined under Section 313 Cr.P.C. and was confronted with the evidence adduced during trial to which he denied and submitted that he is innocent person and has been falsely implicated in the matter. 7. Learned trial Court, after hearing the arguments advanced on both the sides and after taking into consideration the statements of witnesses and the documents exhibited, convicted and sentenced the accused appellant for offence under Section 302 IPC and passed the sentence as stated here-in-above. 8. For appreciating the facts in the present case, we have scanned the statements recorded during the trial along with documents produced and exhibited before the trial Court. 9. The entire case hinges on the testimony of PW.15 Dr. Rajendra Singh Kalwi, PW.18 Shaitan Ram, PW.21 Tulcharam and PW.23 Bhanwar Lal. 10. Pw.23 Bhanwar Lal S/o Radha Kishan is the brother of deceased Sugnai. He in his statement has stated that Sugnai was married to Om Prakash for last 18-20 years. Sugnai was staying with the accused for last 10-11 years and was having a son who is 5-7 years of age. Accused Om Prakash, Babulal and mother-in-law Radha were harassing the deceased. On having called by Om Prakash, he went to Tarnau along with Shaitan Ram and met his sister Sugnai and Om Prakash in the room situated at the first floor. Om Prakash informed him that there was some heated altercation between him and Sugnai. At that time, Sugnai was afraid. When he asked Om Prakash to send Sugnai along with him, he refused and then he asked mother-in-law and father-in-law of Sugnai to send her with him, they also refused. At around 4-5 p.m. Tulcha Ram came and informed him that he went to Tarnau today to meet his daughter Raami and when he was going to meet Sugnai, Om Prakash met him on the way and informed that he has killed Sugnai in his room situated on the first floor. Thereafter, he along with Bhanwar Lal Manda, Tulcha Ram, Narayan Ram, Ram Prasad went to Tarnau in jeep. Thereafter, he along with Bhanwar Lal Manda, Tulcha Ram, Narayan Ram, Ram Prasad went to Tarnau in jeep. On reaching Tarnau when they asked Luna Ram about Sugnai, Luna Ram informed that Sugnai is in the room upstairs. In the room, they saw Sugnai was lying dead on the cot. When he saw the dead body, he saw the injury marks on the neck and some other abrasion on the body. He further stated that the differences between Om Prakash and deceased Sugnai was on account of Om Prakash was having illicit relationship with his Bhabhi. This was protested by the deceased, which was not palatable to the accused and, therefore, he strangulated Sugnai to death. He reported this incident to the Police under his signatures. 11. In the cross-examination, a close scrutiny of the same reveals that whatever happened in the natural chronology of events, he stated and nothing contrary to or in-conflict with the statement given in the examination-in-chief was stated by this witness in his cross-examination. 12. Pw.21 Tulcha Ram has stated in his statement that his daughter is married in Village Tarnau and when he went to meet his daughter, he also decided to meet his niece deceased Sugnai. While he was going to meet the deceased Sugani, he met Om Prakash on the way at around 2.30-3.00 p.m. Om Prakash was in state of fears and told him that he has killed Sugnai by strangulating her. Om Prakash further told him that he should tell this to his brother-in-law Bhanwar Lal. From there, he immediately went to his Village Igyar and told Bhanwar Lal that Sugnai has been killed. He along with Bhanwar Lal, Bhanwar Lal Manda, Narayan Ram, Ram Prasad went to Tarnau by jeep. On reaching Tarnau, when they asked about Sugani, Luna Ram informed that she is in the room upstairs. On going to the room, they found Sugnai was lying dead. Her neck was strangulated having marks of bruises. Bhanwar Lal reported this matter to the police. 13. In his detailed cross-examination, nothing contrary to his statement in the examination-in-chief has been made. He has narrated the incident in a chronological manner without deviation. 14. Pw.18 Shaitan Ram has stated that he accompanied PW.23 Bhanwar Lal to Tarnau to meet his sister. Bhanwar Lal reported this matter to the police. 13. In his detailed cross-examination, nothing contrary to his statement in the examination-in-chief has been made. He has narrated the incident in a chronological manner without deviation. 14. Pw.18 Shaitan Ram has stated that he accompanied PW.23 Bhanwar Lal to Tarnau to meet his sister. He states that on reaching the house of Luna Ram, they were informed that Sugnai and Om Prakash were in their room at the first floor. He further states that after staying there for 15-20 minutes, they went back. On being asked to send Sugani with them, Luna Ram said that they will not send Sugnai today because today is Wednesday and, therefore, they will send her tomorrow. 15. Pw.15 Dr. Rajendra Singh Kalwi while posted at Primary Health Centre, Rol was the chairman of the Board which conducted the postmortem of the deceased stated that police informed him that the deceased died because of the strangulation by hand. The death was caused 12-18 hours back. He has further stated that there was fracture of the hyoid bone. He further states that if the injury is caused by hard object, possibility of the fracture in the hyoid bone cannot be ruled out. 16. Pw.26 Mohan Singh while posted as ASI at Police Station Shree Balaji conducted the investigation, recorded the statements of witnesses, collected the samples, prepared the site plan etc. and has stated that the investigations were conducted by him in accordance with law. 17. Rest other witnesses from PW.1 to PW.12, 17 and 24 who are related to the recoveries, motbir, inquest etc. have not supported the prosecution story and have thus been declared hostile. 18. Heard learned counsel for the parties and perused the material available on record. 19. The epicenter of the argument of learned senior counsel for the appellant was the improvisation made by PW.21 Tulcha Ram and PW.23 Bhanwar Lal in their statements before the trial Court. Learned senior counsel vehemently submitted that the version of the first informant stated in his statement before the trial court is not present in the F.I.R. The name of the person who informed Bhanwar Lal, the first informant and brother of the deceased is conspicuously missing in the F.I.R, whereas he has categorically stated that the factum of death of Sugnai was informed by Tulcha Ram. He has tried to submit that it was disclosed at the first time in the statement of PW.23 Bhanwar Lal that because of illicit relationship of accused with his Bhabhi, there were differences between deceased Sugnai and the accused Om Prakash, but the said fact is also missing in the F.I.R. He further submitted that the report and the memos were written by the police personnel and the same were only signed by the first informant Bhanwar Lal. He submits that in view of the improvisation of the statement made by PW.23 Bhanwarlal from the earlier version makes the testimony of this witness totally unreliable and is required to be discarded. 20. For PW.21 Tulcharam, learned senior counsel submits that although Tulcha Ram went to village Tarnau but it is unbelievable that when at around same time in the afternoon, Bhanwar Lal and Shaitan Ram visited the deceased but did not meet Tulcharam as they were present in the same village on the date of incident. He submits that the testimony of Tulcharam is wholly unreliable as no person will tell another that he has killed his wife and this should be informed to his brother-in-law. Not only this, on getting this information, he did not inform anybody and went straight to his village i.e. Igyar which is about 10-12 kms away. He did not even inform police although police station was on the way. He being a close relative of the deceased, no credence should be given to the testimony of this witness. 21. For PW.22 Bhanwar Lal S/o Shree Ram, learned senior counsel submits that he has stated in his statement that no injury was seen on the body of the deceased. Learned senior counsel further submits that there is no motive for the present appellant to kill his wife. He further contended that the marriage was more than seven years old. There is no previous complaint of any harassment by husband and the present incident at the most is an outcome of a sudden fight between husband and wife. 22. In the alternative, learned senior counsel has stated that at the most, it is a case which does not travel beyond part II of Section 304 IPC. There is no previous complaint of any harassment by husband and the present incident at the most is an outcome of a sudden fight between husband and wife. 22. In the alternative, learned senior counsel has stated that at the most, it is a case which does not travel beyond part II of Section 304 IPC. In support of his alternative submission, he relied upon para Nos.6 and 7 of the judgment of Hon'ble Supreme Court delivered in the case of Uday Singh vs. State of U.P.,2002 2 WLC(SC)(Cri) 527, which reads as under :- "6. From the findings recorded by the Trial Court as well as the High Court, it is clear that fight between two parties started all of a sudden as a result of obstruction caused for digging of the foundation and there is no evidence to show that the accused attacked the deceased with deadly or dangerous arms [or weapons]. It was only in a fight, hand to fist, that both Gainda Singh and the appellant have held the neck of the deceased, Shishupal Singh with such force as to ultimately result in strangulation and his death. It is very difficult to conceive as to how much pressure was applied either by Gainda Singh or the appellant on the deceased's neck so as to cause death. It would be reasonable to hold that the injuries were caused by the appellant on the deceased in a sudden fight where no arms [or weapons] were used and that fight took place in a heat of passion and no common intention to kill the deceased could be inferred. We cannot definitely conclude who actually inflicted fatal injury as evidence on record discloses that Gainda Singh and the appellant both strangled the deceased, which action is part of sudden unarmed fight nor can we conclude that the appellant had an intention to cause death or cause such bodily injury as is likely to cause death, though we attribute to him knowledge that such act is likely to cause death. Thus the appellant and Gainda Singh are guilty of culpable homicide not amounting to murder. 7. Thus the appellant and Gainda Singh are guilty of culpable homicide not amounting to murder. 7. In the circumstances, we set aside the conviction recorded by the Trial Court as affirmed by the High Court under Section 302 read with Section 34 and instead convict him under Section 304, Part II and reduce the sentence to imprisonment for a period of seven years. The bail granted earlier shall stand cancelled and the appellant shall surrender before the Trial Court and be committed to prison to serve out the remaining part of the sentence." 23. Learned counsel has relied upon para 7 of judgment of Hon'ble Supreme Court delivered in the case of Magan Bihari Lal vs. State of Punjab, (1977) AIR SC 1091 on the point that conviction based on the hand-writing of a document is a weak evidence, which reads as under :- "7. In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Railway Administration with his Headquarters at Agra and he had nothing to do with the train by which Wagon No. SEKG 40765 was despatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana. He was not a Guard on either of these two trains. There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station. It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time. It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings Ex.PW 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to candemn the appellant merely on the strength of opinion evidence of a hand- writing expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of UP, (1957) AIR SC 381 that it is unsafe to treat expert hand- writing opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, (1963) AIR SC 1728 that expert evidence of hand-writing can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, (1964) AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by Circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P., (1967) AIR SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands,1822 5 B&Ald 330 and Matter of Alfred Foster's Will, 34 Mich 21. The Supreme Court of Michigan pointed out in the last mentioned case: "Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship--Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil". The Supreme Court of Michigan pointed out in the last mentioned case: "Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship--Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil". We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the hand writing expert B. Lal, any other evidence connecting the appellant with the offence". 24. Learned senior counsel has further relied upon paragraph 19 of a judgment of the Hon'ble Supreme Court delivered in the case of Sudhakar alias Sudharasan v. State rep. by Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu, (2018) CriLJ 1947, which reads as under :- "19. Now, it would be appropriate to consider whether the Courts below exercised the judicial discretion in evaluating the evidence of PW1 and PW5 while convicting the accused. It may be noted that there is nothing on record to support the version of PWs 1 & 5 that on earlier occasions also and particularly on the date of incident, the accused quarreled with his grandmother demanding money and to settle the house in his favour. Further, it is on record that when the deceased was brought to the hospital, in the Accident Register, it was written as 'history of fall'. According to the prosecution's case, blood came out from the mouth and nose of the deceased, but there appears no seizure of bloodstained clothes of the deceased and chemical analysis. Thus, the inconsistent evidence by the alleged eyewitnesses as well as investigation agency would cause dent to the edifice on which the prosecution case is built, and it adversely affects the substratum of the prosecution case." 25. On the other hand, learned public prosecutor submits that unflinching testimony of PW.15 Dr. Rajendra Singh Kalwi, PW.21 Tulcha Ram and PW.23 Bhanwar Lal sufficiently proves the involvement of the present appellant for committing the offence alleged in the present case. On the other hand, learned public prosecutor submits that unflinching testimony of PW.15 Dr. Rajendra Singh Kalwi, PW.21 Tulcha Ram and PW.23 Bhanwar Lal sufficiently proves the involvement of the present appellant for committing the offence alleged in the present case. The prosecution had successfully proved beyond all reasonable doubts the commission of the offence by the present appellant in the present case. The circumstances and the evidence collected during the course of investigation indict the present appellant. The recovery of a copy wherein the appellant has inscribed in so many words the frustration that he is left with no objection but to kill his wife i.e. Sugnai as she has made his life hell. The writing of the copy was compared with the undisputed hand-writing of a note book of the accused placed on record as Ex.P.10 which was compared with the sample of note book of the accused i.e. Ex.P.31. The report of the hand-writing expert (Ex.P.28) conclusively proves that it was written by the appellant and nobody else. 26. Learned public prosecutor further submits that PW.23 Bhanwar Lal and PW.18 Shaitan Ram visited the house of the deceased and accused on the same day wherein they were informed by Om Prakash that there was some quarrel between him and his wife. He has submitted that there is no improvisation in the statements of the prosecution witnesses, namely, PW.21 Tulcha Ram and PW.23 Bhanwar Lal. He further submits that the factum of the death by the accused is fortified from the postmortem report and the statement of Dr. Rajendra Singh Kalwi who has stated that death is caused due to the strangulation by hands. He has further submitted that there is no question of the improvisation of the statement of PW.21 Tulcha Ram as no statement under Section 161 Cr.P.C. of Tulcha Ram was recorded. He further submits that there is no improvisation in the statement of Bhanwar Lal too, first informant as in the statement recorded under Section 161 Cr.P.C. (Ex.D.2), this witness has stated that the fact of death was informed by Tulcha Ram. He further submits that the burden was upon the appellant in view of Section 106 of the Indian Evidence Act to come out and dispel the truth with respect to the cause of death of the deceased. He further submits that the burden was upon the appellant in view of Section 106 of the Indian Evidence Act to come out and dispel the truth with respect to the cause of death of the deceased. Even there is no explanation by the accused under Section 313 of Cr.P.C. He further submits that this is not a case which is liable to be converted from 302 to 304 Part II IPC and the order of learned trial Court is perfectly justified in the facts and circumstances of the present case and is required to be affirmed. 27. We have considered the submissions made at the bar. 28. The statement of PW.23 Bhanwar Lal elaborately mentions the chain of events which is quite natural as being the brother of the deceased, the accused called him in the day time and on reaching his house in his room in the presence of the deceased, the conversation has taken place wherein the accused admits that there was quarrel between the husband and wife and, therefore, in the circumstances, she needs to be counselled. Bhanwar Lal being the brother quite naturally tries to solve the situation by making a point that deceased may be sent along with him but the appellant refused to send her and, therefore, he went back to his village. Therefore, the motive of killing deceased by the accused is writ large. 29. We also do not see anything unusual that on the date of incident PW.21 Tulcha Ram had not visited the Village Tarnau and met accused Om Prakash on the way to his house to meet his niece Sugnai. When he was informed about the death of Sugani by the accused, the first reaction of a person logically could be to inform her brother or father instead of going to anybody else including the police. Therefore, as stated by Tulcha Ram, it is quite natural that he first went to PW.23 Bhanwar Lal and informed him and accompanied him to the house of deceased. Therefore, there is no reason for us to disbelieve the testimony of Tulcha Ram PW.21 and Bhanwar Lal PW.23. The statements of these witnesses get corroborated by the recovery of a note book, wherein the accused himself had inscribed in so many words the frustration and to kill his wife who being the cause of his dismay and sufferings. Therefore, there is no reason for us to disbelieve the testimony of Tulcha Ram PW.21 and Bhanwar Lal PW.23. The statements of these witnesses get corroborated by the recovery of a note book, wherein the accused himself had inscribed in so many words the frustration and to kill his wife who being the cause of his dismay and sufferings. The same has also been proved by comparing an undisputed hand writing with sample hand writing by a hand writing expert, which is also placed on record as Ex.P.28. The corroboration of the above story gets fortified from the postmortem report and the opinion of the Medical Board in particular statement of PW.15 Dr. Rajendra Singh Kalwi who has categorically submitted that death has been caused due to strangulation by hand. 30. Besides this, it is also stated that there were injuries and marks present on the neck of the deceased with fracture in the hyoid bone indicating the fact that the neck of the deceased was pressed with sufficient force resulting into death. 31. We are not impress by the arguments that in the present case, since there is no motive and there is no previous complaint, the present case is required to be converted into a case of Part II of Section 304 IPC. 32. The husband is having a bounden duty to protect his wife under all circumstances unless the same are unreasonable on the part of wife. In our view, the husband solely is responsible for the well-being of his wife as during Satpati, he vows for seven promises/steps for the well-being of his wife throughout his life and one among them is to protect her throughout life. Therefore, we are of considered opinion that a protector cannot become a destroyer and if he becomes the one then the consequences as in the present case has to follow. 33. The facts of this case do not warrant the conversion of the sentence from Section 302 to Section 304 Part II of IPC as the ingredients of murder and punishment under Section 302 of IPC are fully present and same are proved beyond all reasonable doubt. 34. 33. The facts of this case do not warrant the conversion of the sentence from Section 302 to Section 304 Part II of IPC as the ingredients of murder and punishment under Section 302 of IPC are fully present and same are proved beyond all reasonable doubt. 34. The death in the present case having taken place in the house of the accused rather in the presence of accused and there being no other explanation for the same coupled with the fact that corroboration is writ large taking us towards the only conclusion that it was the appellant who murdered his wife and nobody else. 35. We also note that even the appellant was under an obligation to discharge the burden by dispelling the fact or explanation or a reasonable cause of death of deceased under Section 106 of the Indian Evidence Act being especially within his knowledge as nobody else in the house was present in the room and was last seen alive in his company by PW.23 Bhanwar lal and PW.18 Shaitan Ram. 36. We are also not convinced with the argument of learned senior counsel that there are improvisation in the statements of PW.21 and PW.23. A close scrutiny of the same reveals that they have narrated the story correctly without any infirmity and depicting a very natural conduct of a person in these circumstances. 37. The judgments, which have been relied upon by learned senior counsel, are having no application in the present case as in the case of Udai Singh, the facts were very clear that there was sudden fight in which the deceased was strangulated without the use of deadly or dangerous arms (or weapons). Therefore, in the present circumstances, the same is not applicable. 38. In Magan Bihar Lal's case,the Hon'ble Supreme Court has submitted that the conviction should not be based on the basis of the opinion of hand-writing expert as it is not safe but in the present case, it is only one of those corroborating factors besides the unflinching evidence of PW.23 Bhanwar Lal, PW.21 Tulcha Ram and PW.15 Dr. Rajendra Singh Kalwi which fully corroborates the prosecution story. Therefore, this judgment is also of no help to the appellant. 39. Rajendra Singh Kalwi which fully corroborates the prosecution story. Therefore, this judgment is also of no help to the appellant. 39. Further, the judgment relied upon by learned senior counsel in the case of Sudhakar alias Sudharasan is also of no help as in this case there was inconsistent evidence and, therefore, learned trial Court was to evaluate the evidence in its discretion, as inconsistency in the evidence would cause a dent to the prosecution case, whereas in the present case in view of the detailed discussion made above, the prosecution has conclusively proved beyond all reasonable doubt the commission of offence at the hands of the appellant. 40. In view of whatever stated above, we do not find any infirmity in the impugned judgment passed by trial Court and the same is affirmed. 41. Resultantly, the appeal fails and the same is hereby dismissed.