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2018 DIGILAW 2324 (RAJ)

Mange Ram v. State of Rajasthan

2018-12-21

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2018
JUDGMENT Sandeep Mehta, J. - The appellant has been convicted and sentenced as below by the judgment dated 24.04.2017 passed by learned Additional Sessions Judge, Rajgarh, District Churu in Session Case No.17/2010 :- Offence under Section 302/34 IPC : Imprisonment for life with a fine of Rs. 10,000/- and in default of payment of fine, six months' additional simple imprisonment. Offence under Section 201 IPC : Rigorous imprisonment for three years with a fine of Rs. 3,000/- and in default of payment of fine, three months' additional simple imprisonment. 2. Being aggrieved of his conviction and sentence, he has preferred the instant appeal under section 374 (2) of CrPC, 1973. 3. Facts in brief are that the complainant Mahendra S/o Lawari, resident of Lutana lodged a report at Police Station Hameerwas on 31.03.2010 alleging inter alia that his younger sister Smt. Kamlesh had been married to the appellant herein about 5 years ago. Wholesome dowry was given in the marriage, but Mange Ram was not satisfied and used to harass, humiliate and torment the deceased in relation to demand of dowry. He also alleged that the mother-in-law Smt. Santaro was also harassing Smt. Kamlesh on account of demand of dowry. The first informant and his relatives tried to convince Mange Ram to mend his ways on many occasions, but he did not relent from his aggressive behaviour with Smt. Kamlesh. In the morning at about 11 o'clock Mange Ram's brother Balbeer called him and informed that Smt. Kamlesh had expired. On this, the first informant, accompanied with his relatives reached the village Kalari at the house of the accused and saw his sister lying dead in a burnt condition. The first informant expressed an apprehension that his sister Smt. Kamlesh had been killed by Mange Ram and his mother Smt. Santaro. He suspected that either she had been killed by burning or that she might have been killed and then set afire. 4. On the basis of this report, FIR No.56/2010 was registered at the Police Station Hameerwas for the offences under Sections 498-A and 304-B IPC and investigation commenced. 5. The dead body of Smt. Kamlesh was subjected to postmortem and it came to light that she was first throttled to death and then her dead body was set afire. 4. On the basis of this report, FIR No.56/2010 was registered at the Police Station Hameerwas for the offences under Sections 498-A and 304-B IPC and investigation commenced. 5. The dead body of Smt. Kamlesh was subjected to postmortem and it came to light that she was first throttled to death and then her dead body was set afire. After investigation, a charge-sheet was filed against the accused appellant Mange Ram and his mother Smt. Santaro for the offences under Sections 302, 201/34, 304-B and 498-A IPC. As the offences were sessions triable, the case was committed to the court of Additional Sessions Judge, Rajgarh, District Churu. The trial court framed charges against the accused for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses in support of its case and exhibited 32 documents. The accused Smt. Santaro expired during pendency of the trial, on which, proceedings were dropped against her by order dated 04.01.2014. Upon being examined under section 313 CrPC, 1973 the accused Mange Ram denied the prosecution allegations and pleaded innocence claiming that on the day of the incident, his wife Smt. Kamlesh was alone at the house. He and his mother had gone out for their labour jobs. The room wherein Smt. Kamlesh was present caught fire. She tried to douse the fire and in this process, she herself received the burn injuries. 6. The trial court, after appreciating the entirety of evidence available on record held that the prosecution could not prove the charges under Section 498-A and 304-B against the accused appellant by leading cogent convincing evidence and thereafter, he proceeded to convict the accused for the offences under Section 302/34 and 201 IPC and sentenced him as above by the impugned Judgment. Hence this appeal. 7. Shri Vikas Bijarnia, learned counsel representing the appellant, urged that the allegation of maltreatment of the deceased on account of demand of dowry was not substantiated by the prosecution witnesses and therefore, the accused was acquitted from the charges under Sections 498-A and 304-B IPC. Thus, as per Shri Bijarnia, the prosecution does not have available to it, aid of the presumption under Section 113-B of the Evidence Act for establishing guilt of the accused. Thus, as per Shri Bijarnia, the prosecution does not have available to it, aid of the presumption under Section 113-B of the Evidence Act for establishing guilt of the accused. He submits that for raising the presumption under Section 106 of the Evidence Act, the prosecution would have to establish by leading cogent and convincing evidence that the accused alone was present in the house with the deceased when the incident took place. If the evidence is lacking on this aspect, the prosecution cannot take aid of Section 106 of the Evidence Act to seek conviction of the accused. 8. Drawing the court's attention towards entire case of the 9. prosecution, Shri Bijarnia urged that no witness examined during trial stated about the presence of the accused in the house with the deceased on the fateful day and to be specific at the time of the incident. He especially referred to the statement of Smt. Santosh (P.W.3), being the mother of the deceased, who, in her cross-examination admitted that Mange Ram used to work at the brick-kiln and that when the incident took place, Mange Ram was not present in the house. She feigned ignorance as to the whereabouts of Mange Ram at the time of the incident. He urged that the Investigating Officer Milan Kumar Joiya (P.W.13) made no efforts whatsoever to collect evidence so as to establish presence of the accused at the spot when the incident took place. He submitted that the accused, upon being questioned under section 313 CrPC, 1973 pertinently stated that he was working at the Bhatta when his wife Smt. Kamlesh received the burn injuries. As per Shri Bijarnia, the time of the incident was about 11 o'clock in the morning and thus, the presence of the accused at the Bhatta (Brick Kiln) for doing his labour jobs is perfectly natural. He contended that the trial court has put a reverse burden on the accused observing that he should have proved his absence from the house so as to establish his defence plea of alibi and thereby satisfy that he was not in the house at the time of the incident. He contended that the trial court has put a reverse burden on the accused observing that he should have proved his absence from the house so as to establish his defence plea of alibi and thereby satisfy that he was not in the house at the time of the incident. As per Shri Bijarnia, had the incident taken place in the night time, then probably the trial court could have raised an assumption regarding the natural presence of the accused husband and the deceased wife in the same room, but since the incident took place well after sunrise, presence of the accused at his work place is more natural and the initial burden lies totally on the prosecution to allege and to prove that the accused was present in the house when the murder took place. He submitted that unless the prosecution could bring home and establish presence of the accused in his house at the time of the incident by leading cogent evidence, the burden under Section 106 of the Evidence Act cannot be shifted on to the accused and thus, as per Shri Bijarnia, the accused is entitled to be acquitted by giving him benefit of doubt. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Bijarnia and urged that the deceased Smt. Kamlesh, being the wife of the accused appellant, was found murdered in the house, where she resided with the appellant. The lady was first murdered by strangulating her and then the dead body was set to fire so as to give the incident the shape of an accident. In this background, as per learned Public Prosecutor, it is the fittest case for drawing an inference of guilt against the accused by raising the presumption under Section 106 of the Evidence Act. On these grounds, he craved dismissal of the appeal. 10. We have given our thoughtful consideration to the arguments advanced at bar and gone through the material available on record. In view of the fact that the trial court has rejected the prosecution case regarding the alleged harassment meted out to the deceased by the accused appellant on account of demand of dowry and acquitted him from the charges under Sections 498-A and 304-B IPC, the entire controversy is restricted within a limited sphere. Admittedly, the prosecution case is not based on eyewitness account. Admittedly, the prosecution case is not based on eyewitness account. Undoubtedly, the deceased was first strangulated and then her dead body was set to fire and thus, the theory of accident is totally ruled out. However, to bring home guilt of the accused by raising presumption under Section 106 of the Evidence Act, the prosecution would have to establish and prove his presence in the same room at the time of the incident by leading plausible evidence. It is only thereafter, would the prosecution be entitled to ask the court to take aid of the presumption provided by Section 106 of the Evidence act and shift the burden of proof on to the accused. Manifestly, the prosecution failed to lead even a shred of evidence so as to establish that the accused was present in the house when Smt. Kamlesh was killed. The Investigating Officer was totally negligent in this regard while conducting the investigation. Though the mother of the deceased, namely, Smt. Santosh (P.W.3) was not an eye-witness of the incident, but in cross-examination she stated that the accused appellant used to work on a brick-kiln and was not in the house when the incident took place. The issue of the accused proving alibi would arise only if the prosecution had been able to establish his presence in his house at the time of the incident by leading cogent convincing evidence. However, as has been observed above, what to talk of cogent convincing evidence, the prosecution failed to even barely allege that the accused was indeed present in the house when the incident took place. Since the incident happened in the late morning hours on 31.03.2010, the presumption rather works in favour of the accused that he must have gone for doing his labour job at the brick-kiln, rather than being at home. The Investigating Officer should have been more vigilant and could have made enquiries from the neighbours etc., if at all the prosecution was desirous of establishing the presence of the accused in the house at the time of the incident. As has been discussed above, the prosecution could not provide either direct or circumstantial evidence to prima facie establish the presence of the appellant with the deceased wife in the same room when the incident took place. As has been discussed above, the prosecution could not provide either direct or circumstantial evidence to prima facie establish the presence of the appellant with the deceased wife in the same room when the incident took place. In this background, we are of the view that it would be totally unsafe to convict the accused appellant by shifting the burden upon him while raising reverse burden of proof provided under Section 106 of the Evidence Act. While taking this view, we are gainfully supported by the following observations made by Hon'ble the Supreme Court in the case of Sawal Das v. State of Bihar, reported in AIR 1974 SC 778 wherein, the Court held as under: "8. We think that the burden of proving the plea that Smt. Chanda Devi died in the manner alleged by the appellant lay upon the appellant.. This is clear from the provisions of sections 103 and 106 of the Indian Evidence Act. Both the Trial Court and the High Court had rightly pointed out that the appellant had miserably failed to give credible or substantial evidence of any facts or circumstances which could support the plea that Smt. Chanda Devi met her death because her Nylon Saree had accidentally caught fire from a kerosene stove. The Trial Court had rightly observed that the mere fact that some witnesses had seen some smoke emerging from the room, with a kitchen nearby at a time when food was likely to be cooked, could not indicate that Smt. Chanda Devi's saree had caught fire. Neither the murdered woman nor the appellant nor any member of his family was shown to have run about or called for help against a fire. 9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that Section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab AIR 1956 SC 460 : (1956 Cri LJ 827), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. 10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused." 11. In view of the discussion made here in above, we are of the opinion that the prosecution failed to lead appropriate and convincing evidence so as to bring home the charges beyond all manner of doubt against the appellant. Furthermore, as no evidence whatsoever was led before the trial court to establish presence of the accused in the same room with the deceased when the incident took place, manifestly, the presumption under Section 106 of the Evidence Act cannot be raised against him. The acquittal of the accused from the charges under Sections 498- A and 304-B assumes significance and in this backdrop, we are of the opinion that the prosecution could not bring home the charges under Section 302/34 and 201 IPC as well against the accused appellant. Thus, he is entitled to an acquittal. 12. Accordingly, the appeal succeeds and is hereby allowed. The impugned judgment dated 24.04.2017 passed by learned Additional Sessions Judge, Rajgarh, District Churu in Session Case No.17/2010 is hereby quashed and set aside. The accused-appellant is acquitted of the charges. He is in custody. He shall be released from jail forthwith, if not wanted in any other case.