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2018 DIGILAW 1989 (RAJ)

Geni v. State of Rajasthan

2018-09-28

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Vinit Kumar Mathur, J. The present criminal appeal has been preferred on behalf of the accused-appellants against the judgment dated 20.10.2009, passed by learned Additional Sessions Judge (Fast Track), Balotra, Headquarter Barmer, Camp Balotra in Sessions Case No.34/2008 by which the accused-appellants have been convicted for offences under Sections 302 & 201 IPC and sentenced as under: Under Section 302 IPC: Life imprisonment with a fine of Rs. 1,000/- each, in default of payment of fine to further undergo three months' simple imprisonment. Under Section 201 IPC: Seven year's rigorous imprisonment with a fine of Rs. 1,000/- each, in default of payment of fine to further undergo three months' simple imprisonment. 2. In brief the case of the prosecution is that on 18.02.2008, a written complaint was filed before the Deputy Superintendent of Police, Balotra, by Sakar Khan (PW-4), the father of the deceased Leela stating therein that his daughter Leela was married to accused Aasin Khan three years prior to the incident in accordance with Muslim customs and rituals. He further stated that on 12.02.2008 in the evening Geni, the mother-in-law of his daughter Leela and her husband Aasin Khan after giving beatings to his daughter hanged her in the room of Aasin Khan. This hanging was farce. On 13.02.2008 in the evening at around 7:00 PM Nabbe Khan and Gani Khan came to his house and told him that his daughter Leela had died due to hanging and since they are parents of the deceased, they should accompany them. On this he refused saying that they have killed his daughter, therefore, he will not accompany them. On 14.02.2008 at around 8:00 AM his son-in-law Aasin Khan accompanied by Nabbe Khan, Gani Khan, Misre Khan, Barkat Khan and Rasul Khan came to his house and admitted that they have committed mistake in killing his daughter. These persons in the presence of Gani Khan, Suban Khan, Aarab Khan S/o Kamal Khan, Aarab Khan S/o Ghume Khan the residents of their village, confessed that his daughter has been killed by his son-in-law Aasin Khan and mother-in-law Geni, therefore, he should accompany them for funeral of his daughter. 3. On hearing this he became disturbed and was feeling sick and then these people took him to the house of his daughter in a Car. He was accompanied by his brother Bakse Khan. 3. On hearing this he became disturbed and was feeling sick and then these people took him to the house of his daughter in a Car. He was accompanied by his brother Bakse Khan. On reaching the house of his daughter he was very sick and disturbed but his brother Bakse Khan saw his daughter Leela who was having multiple injuries on her body and her neck was strangulated. There were injuries on the neck and waist of his daughter. His brother told them to inform the police and for getting the postmortem done of the deceased before the cremation, but the accused persons refused and the dead body was cremated against their wishes. Thereafter he met the people of his community on 17.02.2008 and a decision to lodge a complaint was taken. Therefore, he has lodged this complaint for getting the dead body of deceased exhumed and the postmortem be done after arresting the accused persons. On the aforesaid complaint, an FIR was registered against the accused persons on 20.02.2008 for the offences under Sections 302 & 201 IPC, P.S. Mandli, District Barmer. 4. The dead body was exhumed and the postmortem was conducted on 22.02.2008 and since the cause of death was uncertain, therefore the viscera samples were collected and the same were sent to the Forensic Science Laboratory for the Histopathological and chemical analysis. 5. After completion of investigation police filed a charge-sheet for the offences under Sections 302 and 201 of IPC against the accused-appellants. 6. Learned Trial Court framed charges against the accused-appellants for the offences under Sections 302 & 201 IPC and the same was read over and explained to them but they denied the charges and sought for trial in the matter. During the trial, the prosecution examined as many as 23 witnesses and 61 documents were exhibited. 7. The accused-appellants were examined under Section 313 Cr.P.C. and they were confronted with the evidence adduced during the course of trial to which they denied and stated that they are innocent and they have been falsely implicated in the present case. 8. Learned trial Court after hearing the arguments from both the sides, taking into consideration the statement of witnesses and after going through the same, convicted and sentenced the accused-appellants vide judgment dated 20.10.2009. 9. 8. Learned trial Court after hearing the arguments from both the sides, taking into consideration the statement of witnesses and after going through the same, convicted and sentenced the accused-appellants vide judgment dated 20.10.2009. 9. The accused-appellant Smt. Geni has been released on bail vide order dated 09.04.2010, passed by the co-ordinate Bench of this Court while suspending her sentence during the pendency of the appeal. 10. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited. 11. Pw-4 Sakar Khan who is the father of the deceased Leela and lodger of the FIR in his statement has stated that his daughter Leela was married to the accused Aasin Khan about four years ago. The marriage was solemnized in accordance with the rituals of Muslim Law. He stated that accused persons used to quarrel with his daughter on which they were counselled by him. He further stated that his daughter was killed by Aasin Khan and in killing his daughter her mother-in-law was involved. He is not aware as to who other persons aided in this act. He further stated that on 13.02.2008 in the evening Nabbe Khan and Gani Khan came to his house stating that his daughter-in-law Leela had died due to hanging, therefore they should accompany them but he refused and told them that they have killed his daughter. He further stated that on the next morning at around 8:00 AM his son-in-law Aasin Khan accompanied by Nabbe Khan, Gani Khan, Misre Khan, Barkat Khan and Rasul Khan came to his house and in the presence of his brother Bakse Khan and 5-6 other persons admitted that they have committed mistake of killing his daughter Leela. These persons in presence of Gani Khan, Suban Khan, Aarab Khan S/o Kamal Khan, Aarab Khan S/o Ghume Khan confessed that his daughter has been killed by the son-in-law Aasin Khan and mother-in-law Geni, therefore, they were requested to accompany them for funeral of his daughter to which he refused and told that police should be informed and postmortem of the dead body of his daughter should be conducted. Geni (mother-in-law of Leela) told that they will get the matter sorted out before the people of their community. Then Leela was buried forcefully. When Aasin Khan told about killing of his daughter Leela, he got disturbed and became unwell. Geni (mother-in-law of Leela) told that they will get the matter sorted out before the people of their community. Then Leela was buried forcefully. When Aasin Khan told about killing of his daughter Leela, he got disturbed and became unwell. They refused to accompany them but Aasin Khan etc. forcefully took them to their house where he became unconscious. His brother Bakse Khan saw the dead body of his daughter Leela and found that there were number of injuries on the body of the deceased and her neck was strangulated. His brother also told that police should be informed and postmortem should be done before the cremation but the accused persons did not pay any heed to the same and cremated the dead body of his daughter. After the cremation when they reached their village he consulted his brothers and thereafter a report was submitted to the Deputy Superintendent of Police, Balotra. 12. In his cross-examination he stated that accused Aasin Khan and Geni (mother-in-law) gave beatings to his daughter after choking her mouth so that she could not scream. He further stated that his daughter was first killed and then was hanged just to show that she has committed suicide. He further stated that the people from entire village were present there and the manner in which she died was not known. She was cremated as a result of natural death. 13. Pw-5 Bakse Khan who is the brother of PW-4 Sakar Khan stated that after the marriage Leela, she was regularly coming at her parental house. He further stated that in the evening, he was informed by Nabbe Khan and Gani Khan that Leela had died due to hanging therefore he should accompany them but he refused and stated that since they have killed Leela he will not accompany them. He further stated that on the next morning at around 8:00-9:00 AM Aasin Khan, Nabbe Khan and other persons came to his brother's house and in the presence of number of other persons they admitted that they have killed Leela and it was a mistake therefore they should accompany them for the funeral. When he went to Leela's house, he saw Leela hanging in the room of Aasin Khan and there were injuries on her body. He told them to call the Doctor and then she should be buried but they refused and Leela was buried. When he went to Leela's house, he saw Leela hanging in the room of Aasin Khan and there were injuries on her body. He told them to call the Doctor and then she should be buried but they refused and Leela was buried. In his cross-examination this witness has stated that the accused persons were always having quarrel with the deceased but they have not reported the same to the police. Only some persons were sent to counsel the accused persons. PW-8 Aarav Khan S/o Ghume Khan has stated in his statement that when they were present in the house of PW-4 Sakar Khan, Aasin Khan and other 5-6 persons came there and admitted the fact that they have killed Leela. 14. Pw-9 Suban Khan in his statement has admitted that he was called by Sakar Khan through a person who informed him that the daughter of Sakar Khan has been killed by Aasin Khan and when he went to the house of Sakar Khan, Aasin Khan was telling that since there was a regular quarrel between Leela and Geni, she was killed. 15. Pw-10 Rasul Khan has also stated that while he was sitting in the house of Sakar Khan, Aasin Khan admitted the fact that Leela was killed by them by strangulation with a rope. PW-16 Dr. Dharmendra while posted at Primary Health Centre, Patodi conducted the postmortem of the deceased Leela on 22.02.2008. He stated that the tongue of the deceased was protruded out and there were no injury marks on the body. The skin was soft and after collecting the viscera samples, the same were sent to Forensic Science Laboratory. It is further stated that in view of the Forensic Science Laboratory report, the cause of death, in his opinion, is due to the consumption of organophosphorus insecticide. 16. The Postmortem report which is Ex.P-15 also shows the cause of death being uncertain. However, viscera samples were preserved and were sent to Forensic Science Laboratory for histopatholigcal and chemical analysis for ascertaining the cause of the death. 17. The result of analysis of Viscera samples by the Forensic Science Laboratory is Ex.P-18. The report reads that on chemical analysis, portions of viscera (1-6) from two packets marked B and A respectively gave positive tests for the presence of organophosphorus insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquilizers. 17. The result of analysis of Viscera samples by the Forensic Science Laboratory is Ex.P-18. The report reads that on chemical analysis, portions of viscera (1-6) from two packets marked B and A respectively gave positive tests for the presence of organophosphorus insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquilizers. 18. Heard learned counsel for the appellants and the learned Public Prosecutor. 19. Mr. P.N. Mohnani, learned counsel for the appellants submitted that the entire prosecution case is false and baseless. The case of the prosecution is that Leela was killed by strangulation by the accused persons and thereafter was hanged in the room of Aasin Khan just to give it a colour of suicide. The entire trial proceeds taking into consideration the theory of strangulation but the Forensic Science Laboratory report and the statement of PW-16 Dr. Dharmendra show that the death has been caused, in his opinion, by the consumption of organophosphorus insecticide. The postmortem report and the statement of PW-16 clearly reveal that there are no injuries or injury marks on the body of the deceased. Ligature mark on the neck of the deceased is also absent. On the strength of the statement of PW-16, the postmortem report (Ex.P-15) and the Forensic Science Laboratory report he argued that testimony of PW-5 Bakse Khan is required to be discarded being false. Since the cause of death is consumption of organophosphorus insecticide, the theory of strangulation and hanging gets nullified on the basis of it. There is no allegations on the accused persons or any body that deceased was administered poison by them. Therefore, the learned trial Court fell in error while convicting the accused-appellants for the offences under Sections 302 and 201 IPC. 20. Mr. Mohnani further argues that it was a natural death and the burial was delayed only for the reason that they were waiting for the parents of the deceased to come and attend the funeral. Had there been any ill intention on the part of the accused persons, the burial would not be delayed, as the same was done only after the arrival of the parents of the deceased. Had there been any ill intention on the part of the accused persons, the burial would not be delayed, as the same was done only after the arrival of the parents of the deceased. The extra judicial confession made by the accused Aasin Khan as stated in the statements of PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 also gets falsified from the fact that they have not killed Leela and the entire theory of strangulation is falsified due to the absence of injury marks on the body of the deceased and the cause of death being the consumption of organophosphorus insecticide. It is further argued by learned counsel for the appellants that since in their opinion the death was a natural death, there was no necessity for them to lodge a report in the police, therefore, there was no question of getting the postmortem conducted of the dead body. He further submitted that the provisions of Section 106 of the Evidence Act are having no application in the present case. 21. On the other hand, learned Public Prosecutor has supported the judgment passed by learned trial Court convicting the accused-appellants for the offences under Sections 302 & 201 IPC and has vehemently opposed the submissions made by learned counsel for the appellants. He has submitted that as per the statement of PW-4, it is very clear that the deceased Leela was harassed by the accused persons and Aasin Khan has made a confessional statement in the presence of PW-5 Bakse Khan, PW-6 Aarav Khan, PW-8 Aarav Khan S/o Ghume Khan, PW-9 Subhan Khan etc. He has further submitted that since there is no explanation for the death and as per Section 106 of the Evidence Act, the accused persons were under an obligation to dispel the truth being in their special knowledge. Since they have not done so, there is no reason to disbelieve the prosecution story and the evidence collected during the course of investigation clearly indicts the accused-appellants for the charges levelled against them and, therefore, they have rightly been convicted by the learned trial Court. He further submits that the deceased died an unnatural death within a period of three years of her marriage and it has come on record that deceased was given beatings by the accused persons and there were quarrel between the accused and the deceased. He further submits that the deceased died an unnatural death within a period of three years of her marriage and it has come on record that deceased was given beatings by the accused persons and there were quarrel between the accused and the deceased. In these circumstances there is no reason to disbelieve the confessional statement made by the accused Aasin Khan that he has killed Leela. The fact that PW-4 Sakar Khan and PW-5 Bakse Khan requested the accused persons for calling the police and get the postmortem done, they did not pay any heed and the dead body of the deceased was cremated which goes to show that they were trying to cause disappearance of the evidence by way of cremating the dead body of Leela. 22. It is also submitted by learned Public Prosecutor that since the fact of death was specially within the knowledge of the accused persons and there is no statement/explanation of the same under Section 313 Cr.P.C. then the case of the prosecution is corroborated by the material evidence on record showing the allegations leveled against the appellants having been proved beyond the shadow of doubt. The prosecution had been able to prove the case against the accused-appellants beyond all reasonable doubts and learned trial Court was absolutely right in convicting the accused-appellants for the offences under Sections 302 & 201 IPC. He therefore submits that judgment of conviction and order of sentence passed by learned trial Court does not require any interference by this Court and the same is required to be upheld. 23. We have considered the rival submissions made at bar and have minutely gone through the record of the trial Court. It is true that the prosecution had proceeded on the theory of killing the deceased by strangulation in the FIR as well as in the statements of PW-4 Sakar Khan and PW-5 Bakse Khan but the fact of the matter is the cause of death, as revealed in the Forensic Science Laboratory report and the statement of PW-16 Dr. Dharmendra, is consumption of organophosphorus insecticide. We also note that in the postmortem report and the statement of PW16 there are no injury marks on the body of the deceased. In these circumstances the strangulation theory does not get corroborated and the cause of death is opined to be the presence of organophosphorus insecticide. Dharmendra, is consumption of organophosphorus insecticide. We also note that in the postmortem report and the statement of PW16 there are no injury marks on the body of the deceased. In these circumstances the strangulation theory does not get corroborated and the cause of death is opined to be the presence of organophosphorus insecticide. Therefore, we are of the view that the testimony of PW-5 is not convincing and it is required to be discarded. Thus case of the prosecution is very loosely built and is not corroborated by the medical evidence. 24. There is nothing on record which shows that the deceased was administered poison. In none of the statements it has come that Leela was administered poison by the accused persons or by herself and, therefore, the police after investigation has not filed the charge-sheet for the offence under Section 306 IPC also, and thus accused were not charged for the same by the trial Court. The extra-judicial confession made by the accused Aasin Khan in the presence of Gani Khan, Suban Khan, Aarab Khan S/o Kamal Khan, Aarab Khan S/o Ghume Khan also gets falsified from the fact that the theory of strangulation is not getting support by the medical evidence and since the extra-judicial confession was made before the father and uncle of the deceased in the presence of the persons who are either living in the neighbourhood of the father of the deceased or are close relatives of the deceased, the possibility of falsely implicating the accused persons in these circumstances cannot be ruled out. Even otherwise the confessional statement unless corroborated by other evidence worth credence, cannot be the sole basis for convicting a person. More particularly in the present circumstances, we are of the view that the confessional statement made by Aasin Khan appears to be an over implication or exaggeration by the prosecution witnesses as they are interested witnesses. Thus, the same is disbelieved by us. 25. The death of Leela had taken place on 12.02.2008 and on 13.02.2008, Nabbe Khan and Gani Khan went to the house of Sakar Khan for taking him and his family members to attend the funeral but they refused. The accused persons on 14.02.2008 again went to them for taking them to their house to attend the funeral. 25. The death of Leela had taken place on 12.02.2008 and on 13.02.2008, Nabbe Khan and Gani Khan went to the house of Sakar Khan for taking him and his family members to attend the funeral but they refused. The accused persons on 14.02.2008 again went to them for taking them to their house to attend the funeral. The accused persons waited for the parents of the deceased Leela to come then only the last rites were performed. Therefore, the intention of the accused persons cannot be doubted. 26. At the most it could have been a case of Section 306 IPC but that is neither the case of the prosecution nor is there any evidence of abetment. 27. We also find that there is no evidence on record of the persons who are living in the neighbourhood of the accused-appellants and the deceased to the effect that the deceased was harassed or a maltreatment was given to her by accused persons to bring home a case of harassment and the motive to support the evidence against the accused persons for the alleged offence. Therefore, in view of whatever stated above, we are of the view that the offence alleged against the appellants have not been proved beyond all reasonable doubts and benefit of doubt is required to be extended in favour of the accused-appellants. We do so. 28. Resultantly, the appeal preferred by the appellants is allowed and judgment of conviction and sentence dated 20.10.2009, passed by the learned trial Court is set aside and the appellants are acquitted of the charges levelled against them. The appellant Smt. Geni is already on bail. Appellant Aasin Khan be set at liberty forthwith if not required in any other case.