Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 2265 (RAJ)

Suresh Urf Sethi Ajmer v. State of Rajasthan

2018-12-06

BANWARI LAL SHARMA, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT Munishwar Nath Bhandari, J. - By this appeal, a challenge is made to the order dated 20th December, 2012 passed by the Additional Sessions Judge No.4, Ajmer in Session Case No.52/2012. The accused-appellant has been convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 5,000/-, in case of default to pay fine, to further undergo one month simple imprisonment. Brief facts of the case: 2. A written report, Exhibit-P12, was given by complainant-Daulat Mehra at around 8.30 PM on 3rd November, 2011 to Police Station Nasirabad City, Ajmer. It was stated that on 27th October, 2011, his sister-Rukmani (Geeta) was set on fire by accused( 2 of 13) [CRLA-209/2013] Suresh Mehra after pouring kerosene on her. The information about it was given by his maternal uncle-Rajkumar on telephone. The complainant immediately reached to JLN Hospital, Ajmer where at around 11.00 PM in the night, his sister disclosed that her husband-Suresh Mehra poured kerosene on her and set on fire. The deceased, thereupon, died at 11.30 PM. 3. Based on the written report, police registered an FIR No.135/2011 for offence under Section 302 IPC. After the investigation, they found a case against the accused-appellant and, accordingly, a charge sheet was filed for offence under Sections 302 IPC. The case was committed to the Court of Sessions where charge was framed against the accused-appellant for offence under Section 302 IPC. The charge was explained to the accused-appellant and when it was denied, trial commenced. 4. The prosecution produced seventeen witnesses apart from sixteen documents to prove their case. The statement of the accused-appellant was recorded under Section 313 Cr.P.C., 1973 He produced three witnesses in defence. The trial court, after marshalling the evidence, convicted accused-appellant for offence under Section 302 IPC. Arguments of the accused-appellant: 5. Learned counsel for accused-appellant submits that incidence took place on 27th October, 2011, whereas, an FIR was registered on 3rd November, 2011. It was with the delay of seven days and remained unexplained. Learned trial court ignored the aforesaid. The accused-appellant should have been acquitted on the aforesaid ground itself. 6. It is also stated that in the FIR, presence of PW13-Pooja at the time of occurrence has not been shown. She was yet presented as an eye-witness. It is also stated that she remained with deceased's sister (Sita) after her death. Learned trial court ignored the aforesaid. The accused-appellant should have been acquitted on the aforesaid ground itself. 6. It is also stated that in the FIR, presence of PW13-Pooja at the time of occurrence has not been shown. She was yet presented as an eye-witness. It is also stated that she remained with deceased's sister (Sita) after her death. She was tutored during the intervening period thus her testimony should not have been believed by the trial court. 7. It is also submitted that PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta have made reference of dying declaration given by deceased on 27th October, 2011. In cross-examination of PW9-Dr. Mahendra Khanna, he has stated that the deceased was only screaming due to pain. A reference of statement of PW17-Phool Chand has also been given to show that deceased was not in a position to make statement. In view of the above, the dying declaration becomes doubtful, yet relied by the trial court to convict the accused-appellant. 8. Learned counsel further stated that on the day of occurrence, the accused-appellant was not available at his residence. The deceased was suffering from mental disorder and the incidence took place as an outcome of the aforesaid. It has been ignored by the trial court while convicting accused-appellant for offence under Section 302 IPC. 9. The argument has been raised even in regard to recovery of container. The recovery has been made after lapse of seven days from the place of occurrence as if all the articles to prove the case were to be kept as it is by the accused-appellant. The recovery of articles has not been supported by the witnesses thus it should not have been relied by the trial court. Taking into consideration the aforesaid, the accused-appellant deserves to be acquitted as the prosecution failed to prove its case beyond doubt. 10. A reference of the judgment of the Apex Court in the case of Thulia Kali v. The State of Tamil Nadu, reported in (1972) 3 SCC 393 has been given to support the argument. It is submitted that delay of 20 hours in lodging FIR has been taken to be fatal and the accused therein was acquitted. In the instant case, there is an unexplained delay of seven days thus should not have been ignored by the trial court. It is submitted that delay of 20 hours in lodging FIR has been taken to be fatal and the accused therein was acquitted. In the instant case, there is an unexplained delay of seven days thus should not have been ignored by the trial court. In the aforesaid judgment, it has also been held that statement of sole witness should be relied cautiously. In the instant case, PW13-Pooja is a sole eye-witness and, otherwise, she is a child witness, at the age of nine years. Her statement should have been relied cautiously. In fact, no corroborative evidence exists to connect the accused-appellant with the crime. In view of the above, order of the trial court deserves to be set aside and the accused-appellant may be acquitted of the offence under Section 302 IPC. 11. Learned Public Prosecutor has opposed the appeal. She submits that there is no delay in lodging FIR. A reference of "Rojnamcha", Exhibit-P16, has been given to show that proceedings were initiated under Section 174 Cr.P.C., 1973 It was for the reason that death of deceased-Rukmani (Gita) was unnatural. The FIR, thereupon, was registered on the written report of complainant-Daulat Mehra. In view of the above, argument about delay in lodging FIR may not be accepted. 12. Learned counsel for accused-appellant has challenged the oral dying declaration given by the deceased in the presence of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14- Seeta. When deceased-Rukmani was admitted in JLN Hospital, Ajmer, all the three witnesses reached there. While she was in the company of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta and stated about the occurrence. As per cross-examination of PW9-Dr. Mahendra Khanna, deceased-Rukmani (Gita) was screaming thus she could have made dying declaration. 13. The fact about dying declaration was disclosed by the complainant at the first instance while lodging FIR. A reference of written report, Exhibit-P12, has been given where a reference of dying declaration by the deceased has been given. 14. Learned Public Prosecutor has further opposed the argument of learned counsel for accused-appellant in regard to nondisclosure of name of Pooja in the FIR as an eyewitness. It is submitted that in the FIR, it is not necessary to mention every fact, that too, in regard to presence of eye-witness. The FIR is not considered to be encyclopedia. The complete story comes during the course of investigation and subsequently in trial. It is submitted that in the FIR, it is not necessary to mention every fact, that too, in regard to presence of eye-witness. The FIR is not considered to be encyclopedia. The complete story comes during the course of investigation and subsequently in trial. PW13-Pooja has shown her presence at the time of occurrence and, otherwise, her presence at the residence is natural. She is none else but daughter of deceased-Rukmani (Gita) and accused-appellant (Suresh @ Sethi). Her presence at the time of occurrence has unnecessarily been doubted so as to disbelieve her statement. 15. The allegation of tutoring has also been made in ignorance of the fact that statement of PW13-Pooja was recorded in court on 15th June, 2012. The cross-examination of Pooja was deferred at the instance of counsel of the accused. The accused tried to win over the witness. The cross-examination was made with the delay on 10th September, 2012 i.e. with the gap of almost three months. The period of three months to hold crossexamination is, otherwise, hit by Rule 43 of General Rules (Criminal), 1980. The trial court should not have deferred the cross-examination for such a long period. It is thus incorrect to state that PW13-Pooja made tutored statement. 16. A reference of section 106 of the Indian Evidence Act has also been given. It is for the reason that presence of accused-appellant (husband) at the place of residence is again natural. He was exclusively in possession of the house where the deceased was residing. In view of the above, presumption also goes against accused-appellant for his involvement in the occurrence. The accused-appellant has not shown his unavailability at the place of occurrence while making statement under Section 313 Cr.P.C., 1973 The plea of "alibi" needs to be proved by the accused-appellant. 17. It is lastly submitted that recovery of the container and other articles have been questioned by the accused-appellant without realising that recovery of the articles is from the house under possession of accused-appellant thus could not have been disbelieved by the trial court so as to acquit the accused-appellant. A prayer is, accordingly, made to dismiss the appeal while maintaining the order passed by the trial court. 18. We have scanned the matter carefully and for that, perused the record of the case. 19. A prayer is, accordingly, made to dismiss the appeal while maintaining the order passed by the trial court. 18. We have scanned the matter carefully and for that, perused the record of the case. 19. This appeal is directed against the order dated 20th December, 2012 passed by the Additional Sessions Judge No.4, Ajmer in Session Case No.52/2012. The accused-appellant has been convicted for offence under Section 302 IPC. 20. An FIR was registered on a written report by complainant-Daulat Mehra at around 8.30 PM on 3rd November, 2011 with Police Station Nasirabad City, Ajmer, Exhibit-P12. It was alleged that on 27th October, 2011, his sister-Rukmani (Geeta) was set on fire by accused-Suresh Mehra after pouring kerosene on her. On the written report, FIR bearing No.135/2011 was registered. 21. After investigation, when a case was found against accused-appellant, a charge sheet was filed. The trial court framed charge for offence under Section 302 IPC and explained it to the accused-appellant. He denied the charge thus trial commenced. 22. The prosecution produced seventeen witnesses apart from sixteen documents to prove their case. The statement of accused-appellant was recorded under Section 313 Cr.P.C., 1973 The star witness in this case is PW13-Pooja. She is said to be an eyewitness to the occurrence and made specific allegation against accused-appellant for pouring kerosene on her mother and, thereupon, set her on fire. 23. The cross-examination of PW13-Pooja was deferred for a period of three months going contrary to Rule 43 of General Rules Criminal, 1980. Her testimony has been questioned mainly on the ground that her name was not disclosed in the FIR despite being an eye-witness. It is also on the ground that PW13-Pooja was in the company of deceased's sister (Sita) thus she made tutored statement. 24. It is also stated that elder brother of PW13-Pooja was not produced by the prosecution to bring truth on record. Before taking into consideration aforesaid aspect, we are referring the first argument raised by learned counsel for accused-appellant. It is about delay in lodging of the FIR. 25. It is not in dispute that occurrence took place on 27th October, 2011 and, immediately thereupon, the deceased was taken to Govt. Hospital, Nasirabad and thereafter, JLN Hospital, Ajmer. The "Rojnamcha", Exhibit-P16, makes entry about it. It has also come that deceased was attended by his brother-PW10- Daulat Mehra, and sister-PW14. 25. It is not in dispute that occurrence took place on 27th October, 2011 and, immediately thereupon, the deceased was taken to Govt. Hospital, Nasirabad and thereafter, JLN Hospital, Ajmer. The "Rojnamcha", Exhibit-P16, makes entry about it. It has also come that deceased was attended by his brother-PW10- Daulat Mehra, and sister-PW14. The deceased died on 27th October, 2011 at around 11.30 PM. In view of the above, FIR should have been registered immediately after the occurrence or at-least after death of deceased-Rukmani (Gita). The FIR was lodged with the delay of seven days and remained unexplained. The challenge to the order of the trial court has been made mainly on the aforesaid ground. 26. Learned Public Prosecutor has failed to explain the delay in lodging FIR. A reference of proceedings under Section 174 Cr.P.C., 1973 has been given. We find that pursuant to it, even the statements of witnesses were not recorded and otherwise post-mortem report, Exhibit-P15, was prepared before registration of the FIR. 27. It is also a fact that while preparing inquest report, Exhibit- P7, on 27th October, 2011, the witnesses did not disclose about oral dying declaration. In any case, the aforesaid aspect would be considered later on as we are firstly considering the issue about delay in lodging FIR. We find force in the argument of learned counsel for accused-appellant about unexplained delay in lodging FIR. 28. Another issue is in reference to statement of PW13-Pooja. She has not been projected as an eye-witness while lodging FIR on 3rd November, 2011. She is, otherwise, a child witness but said to be an eye-witness to the occurrence. We find that her name does not appear even in the inquest report, Exhibit-P7. 29. It is also a fact that PW13-Pooja was in the company of deceased's sister (Sita) after death of Rukmani (Gita). In the light of the aforesaid, testimony of PW13-Pooja has to be viewed cautiously. PW13-Pooja is, otherwise, a sole eye-witness because her elder brother was not produced by the prosecution to prove its case despite his presence to be natural at the place of occurrence. In view of the aforesaid also, we find reasons to consider argument of learned counsel for accused-appellant for believing testimony of PW13-Pooja by the trial court. PW13-Pooja is, otherwise, a sole eye-witness because her elder brother was not produced by the prosecution to prove its case despite his presence to be natural at the place of occurrence. In view of the aforesaid also, we find reasons to consider argument of learned counsel for accused-appellant for believing testimony of PW13-Pooja by the trial court. It is, however, with the observation that merely for the reason that name of eyewitness was not given in the FIR, her statement cannot be disbelieve by the trial court. It is for the reason that FIR is not considered to be an encyclopedia of the occurrence. 30. The argument of learned counsel for accused-appellant in reference to statement of PW13-Pooja is concerned, it deserves consideration and conclusion therefor would be drawn after considering other issues raised by learned counsel appearing for accused-appellant. 31. It is submitted that oral dying declaration before PW10- Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta has been relied by the trial court in ignorance of the fact that deceased was not in a position to speak. A reference of statement of PW9-Dr. Mahendra Khanna has been given. He has not stated that deceased was in a position to speak. In view of the above, how an oral dying declaration has been made by the deceased in the presence of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta. If the oral dying declaration had been made, it would have been mentioned in the inquest report, Exhibit-P7, which was prepared on 27th October, 2011. PW17-Phool Chand has stated that deceased was not in a position to make statement. 32. The fact further raised by learned counsel for accused-appellant is about delay in lodging the FIR despite an alleged oral dying declaration. If there would have been oral dying declaration, there was no reason to lodge the FIR on 3rd November, 2011 instead of 27th October, 2011 or at-least on 28th October, 2018. The dying declaration has thus been questioned by learned counsel for accused-appellant. It is also in reference to the fact that no certificate of the Doctor exists to prove that deceased was in fit mental condition to make dying declaration. 33. We have considered the statements of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta. They were duly cross-examined by the accused-appellant. Their statements for dying declaration has been challenged in reference to other evidence and statement of PW9-Dr. 33. We have considered the statements of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta. They were duly cross-examined by the accused-appellant. Their statements for dying declaration has been challenged in reference to other evidence and statement of PW9-Dr. Mahendra Khanna and PW17- Phool Chand. We find substance in the argument of learned counsel for accused-appellant for the aforesaid also. 34. The statement of PW9-Dr. Mahendra Khanna does not show that deceased was in a position to speak and PW16-Dr. RK Boyal has not stated that deceased was cautious so as to make statement. As per the statements of Doctors, the deceased was screaming. PW17-Phool Chand has stated that deceased was not in a position to make statement. Accordingly, an oral dying declaration in the presence of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta becomes doubtful. 35. The other aspect raised by learned counsel for accused-appellant is even against recovery of container and other articles. The recovery has been made after seven days of occurrence because an FIR was not lodged immediately and even pursuant to proceedings under Section 174 Cr.P.C., 1973 no recovery was made by the police. The possibility of remaining container available at the place of occurrence for seven days becomes doubtful and, for that reason also, recovery of the articles has been doubted. The witness to recovery has not supported prosecution case. 36. The argument has been opposed by learned Public Prosecutor but we find that recovery of articles has been made after seven days, that too, after registration of the FIR, whereas, the occurrence came to the notice of police on 27th October, 2011 itself. They initiated proceedings under Section 174 Cr.P.C., 1973 but no recovery of articles was made immediately after recording in "Rojnamcha", Exhibit-P16. 37. The facts discussed above show substance in the argument of learned counsel for accused-appellant even in regard to recovery of the articles said to be doubtful in the facts and circumstances of the case. 38. Learned counsel for accused-appellant has raised an argument in reference to section 106 of the Indian Evidence Act. He submits that initial burden to prove the charge lies on the prosecution and then only section 106 of the Indian Evidence Act can be invoked against the accused. 38. Learned counsel for accused-appellant has raised an argument in reference to section 106 of the Indian Evidence Act. He submits that initial burden to prove the charge lies on the prosecution and then only section 106 of the Indian Evidence Act can be invoked against the accused. A reference of judgment of the Apex in the case of Vikramjit Singh Alias Vicky v. State of Punjab, reported in (2006) 12 SCC 306 has been given. 39. Learned Public Prosecutor has stated that accused-appellant and deceased alone were at the place of incidence (residence) and it was exclusively in possession of the accused-appellant. As against the aforesaid, learned counsel for accused-appellant has made reference of a dispute of property between the family members. The accused-appellant is said to have gone out and occurrence took place in between. We find that in the statement under Section 313 Cr.P.C., 1973 the plea of "alibi" has not been taken by accused-appellant. In those circumstances, statements of DW1- Smt. Santosh, DW2-Kamla and DW3-Smt. Vimla become doubtful about absence of the accused-appellant at the place of occurrence but the fact about dispute of the property has been shown. 40. We find delay in lodging FIR apart from substance in other arguments of learned counsel for accused-appellant. The onus to prove case beyond doubt lies on the prosecution and in those circumstances, judgment of the Apex Court in the case of Vikramjit Singh Alias Vicky (supra) would apply. Taking into consideration the aforesaid, we are unable to accept the argument raised by learned Public Prosecutor in reference to section 106 of the Indian Evidence Act. 41. Learned counsel for accused-appellant has made a reference of cross-examination of PW13-Pooja. She has admitted that relations between father and mother were cordial. They never fought with each other. The cross-examination of PW13-Pooja has been ignored by learned trial court. It is also a fact that accused-appellant was not under influence of liquor on the day of occurrence. Hence, even motive to cause incidence is missing. 42. In the statements of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14- Seeta also, motive to cause incidence is missing. The prosecution has not proved that on the day of occurrence, the accused-appellant was under the influence of liquor. 43. In view of the discussions made above, we find force in the argument to question conviction and sentence for offence under Section 302 IPC. The prosecution has not proved that on the day of occurrence, the accused-appellant was under the influence of liquor. 43. In view of the discussions made above, we find force in the argument to question conviction and sentence for offence under Section 302 IPC. It is not only that there is an unexplained delay in lodging FIR but testimony of PW13-Pooja has also been questioned apart from recovery of the articles. The motive to cause occurrence is missing apart from the fact that oral dying declaration of the deceased in the presence of PW10-Daulat Mehra, PW11-Prabhu Dayal Kashyap and PW14-Seeta cannot be believed. Accordingly, we find that prosecution could not prove its case beyond doubt, thereby, we cause interference in the order of conviction and sentence dated 20th December, 2012. It is, accordingly, set aside. The accused-appellant is acquitted of the offence under Section 302 IPC by giving benefit of doubt. 44. The appeal is allowed with the aforesaid. 45. As per Section 437A of the Code of Criminal Procedure, accused-appellant-Suresh @ Sethi is directed to furnish a personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant will appear before the Supreme Court on the receipt of notice thereof.