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2018 DIGILAW 877 (RAJ)

SUMAN DEVI v. STATE OF RAJASTHAN

2018-04-03

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT/ORDER : Mohammad Rafiq, J. These two appeals are directed against the common judgement dated 19.12.2016 passed by Additional Sessions Judge, Kotputli, District Jaipur in Sessions Case No.09/2009 whereby the accused-appellants have been convicted in the following manner: Accused-appellant Smt. Suman Devi: For offence u/s.302 IPC - Sentenced to imprisonment for life with a fine of Rs.5, 000, in default of payment of fine, to further undergo six months simple imprisonment. For offence u/s.302/120B IPC Sentenced to 14 years rigorous imprisonment with fine of Rs.3000, in default of payment of fine, to further undergo three months simple imprisonment. All the sentences were ordered to run concurrently. Accused-appellant Mohan Lal Sharma: For offence u/s.302/120B IPC Sentenced to 14 years rigorous imprisonment with fine of Rs.3000, in default of payment of fine, to further undergo three months simple imprisonment. 2. A written report was submitted by Rohitash (PW14) to SHO Police Station Kotputli at 09.30 AM on 03.12.2008 inter alia alleging therein that in the morning at 7.00 AM on that day, Surendra Compounder informed him that his (informant's) brother Mahesh has been murdered by someone. He came with Surendra on his vehicle from Balaji I.T.I. to his house, at that time several persons assembled in the house and when he went inside the house, he saw the dead body of his brother Mahesh lying on the ground. Blood was found spread on the floor. Mahesh was having deep injuries on his neck, as a result of which, the skin of neck was torn and the bones of neck were visible. On the fateful night, deceased Mahesh's daughter Komal and wife Suman were also sleeping in the same room. His brother Mahesh has been killed by someone by causing an injury on the neck. Mahesh's wife Suman knew everything. Suman had illicit relations with Mohan Sharma and other persons. The murder of his brother was committed owing to such illicit relations. Action be therefore taken against the culprit. 3. On the basis of the aforesaid report, the police registered FIR No.820/2008 for offence u/s.302 IPC and investigation commenced. Police conducted investigation and submitted charge sheet against the accused-appellants for offence u/s.302, 120B IPC in the Court of Magistrate, who took cognizance of offence and the offences being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Additional Sessions Judge, Kotputli, District Jaipur for trial. Police conducted investigation and submitted charge sheet against the accused-appellants for offence u/s.302, 120B IPC in the Court of Magistrate, who took cognizance of offence and the offences being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Additional Sessions Judge, Kotputli, District Jaipur for trial. The trial court framed charges for offence u/ss.301 and 120B of IPC against accused-appellant Suman and u/s.302/120B against accused-appellant Mohan Lal Sharma. The accused denied the charges and claimed to be tried. The prosecution produced 29 witnesses and exhibited 59 documents. The accused in their examination u/s.313 Cr.P.C. alleged false implication and pleaded innocence. The defence in support of his case, produced Bablu Sharma as DW1 and exhibited four documents. The learned trial court on conclusion of the trial, convicted and sentenced the accused-appellants in the manner as indicated above. Hence these appeals. 4. Pt. Shri Ram Joshi, learned counsel for the accused-appellant Suman Devi has argued that the learned trial court has erred in law in convicting the accused-appellant on the basis of mere surmises and conjectures. Not only there is no eye witness to the incident of murder, but even the circumstantial evidence is also absent. There is no witness of last seen inasmuch as recovery of alleged weapon of offence i.e. kharwadi/kulhari has been shown from the place of incident itself, which cannot be attributed to the accused-appellant. It is contended that the statement of prosecution witnesses suffer from numerous contradictions and infirmities/inconsistencies and therefore it is highly unsafe to convict the accused on the basis of such unreliable evidence. The trial court failed to consider that complainant-Rohitash, who happened to be brother of the deceased Mahesh had a long standing enmity with Suman Devi, wife of deceased owing to property dispute. It is therefore that he made false allegations against her and spread rumors about her character in the village. The Investigating Officer did not conduct proper investigation in this regard and mechanically filed charge sheet against the accused. It is argued that the theory of conspiracy fell flat on the ground in view of the findings recorded by the learned trial court itself that the evidence of register, which shows that the accused Suman Devi stayed in Chandra Mahal hotel with co-accused Mohan on 28.10.2008 is not reliable. It is argued that the theory of conspiracy fell flat on the ground in view of the findings recorded by the learned trial court itself that the evidence of register, which shows that the accused Suman Devi stayed in Chandra Mahal hotel with co-accused Mohan on 28.10.2008 is not reliable. It is not even a complete register of the hotel, but contains only four pages of that register (Ex.P34) and, therefore, cannot be taken as an evidence against the accused. The trial court therefore refused to believe it. Secondly, call details sought to be proved vide memo Ex.P43 to Ex.P53 of alleged conversation between both the accused cannot be read in evidence in the absence of certificate requisite under Section 65B(4) of the Indian Evidence Act and a competent authority of the service provider to prove two certificates not being produced in evidence. 5. It is argued that as far as blood stains found on the saree and blouse of accused Suman Devi is concerned, it is quite natural for her that on seeing her husband in pool of blood, she tried to help him and in that process her clothes might have come in contact with the clothes of appellant, therefore, that cannot be taken as a circumstance against the accused-appellant Suman. 6. Shri Ravi Shankar Sharma, learned counsel for the accused-appellant-Mohan Lal Sharma submits that there is absolutely no evidence of last seen to prove that accused Mohan Lal was lastly seen in the company of deceased and for that matter in the company of co-accused Suman Devi in the night or even in the morning of the day when the incident took place. The so called evidence of the prosecution that accused Mohan Lal had stayed in Chandra Mahal Hotel two months before the incident i.e. 28.10.2008 with the co-accused Suman Devi with her two sons has not been accepted as proof by the trial court itself. For the same reason, the allegation of prosecution based on the statement of some of its witnesses that the accused Mohan Lal persisted in having illicit relations with Suman Devi and owing to this, a Panchayat was convened in the village at the instance of the deceased three months before the incident, also cannot be linked with the murder. Had it been the reason of conspiracy, accused would not take long period of three months to commit the murder. Had it been the reason of conspiracy, accused would not take long period of three months to commit the murder. Learned counsel argued that it could be a case of dispute between husband and wife, which resulted into unfortunate death of Mahesh, but as far as Mohan Lal is concerned, he has nothing to do with the same. 7. It is argued that Komal (PW9), daughter of deceased and accused-appellant Mahesh and accused-appellant Suman has not supported the prosecution case and has been declared hostile. Pushpa (PW10) has made lot of improvements over her previous version given to the police and statement recorded u/s.161 Cr.P.C. (Ex.D2). In the Court statement, she for the first time stated that when the Panchayat was convened for persuading the accused-appellant to desist from having illicit relations, Suman insisted that she would stay with Mohan Lal as his wife. There was a general opinion in the village about bad character of Suman and that she once 8.00 o' clock at night even went to the house of Mohan on the invitation of his father and sister and found that Mohan was beating his mother and sister. When she tried to intervene, Mohan caught her feets and requested her help to arrange his meeting with Suman. Mohan was openly taking the name of Suman. All this was not earlier stated by Pushpa in her police statement Ex.D2 and when confronted with this, she failed to give any explanation. Moreover, it is argued that Seduram Saini (PW12) is also not a reliable witness inasmuch as he too has made lot of improvements over his previous version given to the police. Besides, the fact is that his statement u/s.161 Cr.P.C. was recorded belatedly 15 days after the incident on 21.12.2008. He therein stated that when Panchayat was convened, Suman insisted that Mohan Lal would come to her and that if anyone came between them, the consequences would not be good. But when his statement was recorded in the Court as PW12, he has exaggerated by saying that Suman stated in Panchayat that she would treat Mohan as her husband and that Mohan threatened Mahesh that if he tried to come between them, he would be killed. 8. But when his statement was recorded in the Court as PW12, he has exaggerated by saying that Suman stated in Panchayat that she would treat Mohan as her husband and that Mohan threatened Mahesh that if he tried to come between them, he would be killed. 8. Smt. Sonia Shandilya, learned Public Prosecutor and Shri Manish Gupta, learned counsel for the complainant have opposed the appeals and supported the impugned judgement of the learned trial court and in doing so, they have referred to statements of various prosecution witnesses and the exhibits on record, reference of which shall be made hereinafter at the appropriate place. 9. We have given our anxious consideration to the rival submissions and perused the material on record. 10. As far as accused-appellant Suman Devi is concerned, the weapon of offence kharwadi/kulhari has been recovered at her instance vide memo Ex.P13 pursuant to information, which she gave to police under Section 27 of the Evidence Act vide Ex.P39 on 6.12.2008 on the same day. This was found buried in the sand covered by bricks in the backyard of the house. The accused dug the sand with his own hands and got the kharwadi/kulhari recovered. Recovery of the blood smeared saree and blouse of Suman Devi was also made vide memo Ex.P14. Om Prakash (PW11) and Prem Narayan (PW6) are attesting witnesses to both recovery memos, both have supported the recovery. All these articles were sent to FSL for their examination. Apart from this, the soil in which the axe was buried was also seized vide memo Ex.P15. The blood smeared clothes i.e. one baniyan and pant of deceased Mahesh Kumar Sharma was also seized vide Ex.P36. Attesting witness to this baniyan is Bhawani Singh (PW2) and Raghunath (PW3) , both of whom have fully supported the recovery. All these articles were deposited vide receipt Ex.P24 and Ex.P25 in the FSL by Chhote Lal (PW21), who has supported the case of prosecution. The FSL report (Ex.P59) states that six packets were received in sealed packet, which tallied with specimen seal impression was forwarded. The FSL report has proved that the 'gadda' (mattress) cover and the 'chadder' (bed sheet) in packet B on which the dead body of the deceased was found contained human blood of 'B' group. Similarly, pant and baniyan of the deceased in packet C too, was found to contain human blood of 'B' group. The FSL report has proved that the 'gadda' (mattress) cover and the 'chadder' (bed sheet) in packet B on which the dead body of the deceased was found contained human blood of 'B' group. Similarly, pant and baniyan of the deceased in packet C too, was found to contain human blood of 'B' group. Not only this, kharwadi/kulhari, the weapon of offence from packet D too was found to contain human blood of 'B' group. Similarly, the blouse of the accused Suman from packet E was found to have human blood of 'B' group. Although the saree from the same packet E was having human blood, but its grouping was not ascertained. The blood smeared soil in which the kharwadi/kulhari was found buried from packet-F was also found positive for the presence of human blood. 11. As far as motive of murder is concerned, the informant in the written report itself has expressed doubt on accused Mohan Lal Sharma that he had been having illicit relations with Suman and that owing to such illicit relations, his brother Mahesh has been murdered. No doubt, there are some variations/inconsistencies between what Seduram and Pushpa have stated in their police statements and the Court statements, but notwithstanding that, there is also an overall and substantial similarity in their statement. Besides this, other witnesses have also come forward to state that accused-appellants had been having illicit relations for quite some time and the deceased used to object it and inasmuch a Panchayat was also convened at the instance of deceased, in which accused openly proclaimed that they would carry on with their illicit relations and that whoever would come in between them, would face consequences. 12. We may briefly deal with such evidence, which the learned trial court has relied to convict the accused-appellant. Manju Devi (PW7) has stated that marriage of Suman was solemnised with Mahesh on 2.12.2007. Suman was a woman of bad character and that many persons used to visit her in suspicious circumstances. Though they reside at different places, but shared a common house. Suman had two rooms and one kitchen in her possession but she (this witness) had one room and one kitchen. Whatever conversion took place in the rooms of Suman could be overheard by her. Accused Mohan Lal had been having illicit relations with Suman for quite sometime. Though they reside at different places, but shared a common house. Suman had two rooms and one kitchen in her possession but she (this witness) had one room and one kitchen. Whatever conversion took place in the rooms of Suman could be overheard by her. Accused Mohan Lal had been having illicit relations with Suman for quite sometime. Mohan Lal used to frequently visit Suman for objectionable activities. Her husband Mahesh used to often scold her for such activity. He would tell her that he would not permit Mohan to come to their house, but Suman always insisted on having relations with Mohan. She even threatened that if he (Mahesh) objected to her relations with Mohan, she would get him killed. Suman would often talk to Mohan on mobile phone. When Panchayat was convened in the village at the instance of Mahesh, Suman insisted that she would keep Mohan as her husband and if Mahesh object to this, he would have to loose his life. Even Mohan insisted in the Panchayat that he would continue to visit Suman. She even overheard Suman talking to Mohan saying that she would murder Mahesh that day. As far as this part of statement is concerned, the same is found to be substantially consistent with same version she gave to the police in her statement (Ex.D1), but even then this statement at least proves that accused Suman had been continuously having illicit relations with Mohan despite stiff opposition by her husband Mahesh. Manju has further stated that on the fateful night, she heard the sound of quarrel between deceased Mahesh and Suman over some matter. She heard Suman repeatedly saying that she would meet Mohan and would even call him to the house. She also heard the sound of cry, but she thought that such quarrel was a regular thing between husband and wife. In the morning, when she came after the call of nature, she found Komal, daughter of deceased crying and saying that her mother was not getting up. When she went inside, she found that Suman was lying asleep with her body covered by blanket. When she asked Suman to get up, Suman objected to this and again went a sleep. Then, she asked her son to call his uncle Mahesh, suddenly she noticed that the dead body of Mahesh was lying in that room in the pool of blood. When she asked Suman to get up, Suman objected to this and again went a sleep. Then, she asked her son to call his uncle Mahesh, suddenly she noticed that the dead body of Mahesh was lying in that room in the pool of blood. He was having two injuries of kharwadi/kulhari. 13. Komal (PW9) daughter of deceased and the accused-appellant Suman has been produced in evidence, but she has not fully supported the case of the prosecution, yet she has stated that when her father was murdered, she along with her mother was very much in the same room and that their room and the room of their aunt (Manju) were adjacent. In cross examination, this witness aged 11 years, has admitted that she had come from the house of her maternal uncle to give evidence and it is this maternal uncle Bablu Sharma, who has appeared as DW1. The reason why this witness has not supported the case of the prosecution and has turned hostile can quite easily be understood. Even then in cross examination, this witness again stated that she and her mother continued to stay in the same room in which the dead body of her father was found. Pushpa Devi (PW10) an annganwari worker, has of course narrated slightly different story in the Court, which she did not mention in police statement (Ex.D2). Even then, she too has substantially supported the case of the prosecution regarding illicit relations between accused-appellants and about their attitude. 14. Seduram Saini (PW12) has also stated that Suman was a woman of loose character. Mohan S/o Naththu Ram Sharma had illicit relations with her and often visited Suman in the midnight around 12. Mahesh used to object to this. In fact, Mahesh assembled the village Panchayat, which was attended by Omi, Kailash, Lallu @ Bhawani Singh and Jaswant Sarpanch and several other persons. He there complaint about the conduct of Mohan that he used to have illicit relations with his wife and often come to his house late in the night. The village Panchayat called both Suman and Mohan Lal and tried to persuade them to desist from doing so. Suman however had taken a stubborn attitude and insisted on having illicit relations with Mohan as her husband and even stated that Panchayat has no justification to object to their relationship. The village Panchayat called both Suman and Mohan Lal and tried to persuade them to desist from doing so. Suman however had taken a stubborn attitude and insisted on having illicit relations with Mohan as her husband and even stated that Panchayat has no justification to object to their relationship. This witness has even stated that Mohan even subjected Mahesh to beating a month prior to the date of incident and that he (this witness) intervened to save Mahesh. At that time, he heard that Mohan threatened Mahesh that if he (Mahesh) came between them, he would kill him (Mahesh) . In the face of all this evidence, even if the hotel register and the alleged stay of the accused-appellants together in a room at Chandra Mahal hotel on 28.10.2008 and the call details in the absence of certificate requisite under Section 65B(4) of the Indian Evidence Act and the recovery of nokia cellphone from accused Mohan vide memo Ex.P19 from his father Nathuram and mobile of accused Suman vide memo Ex.P18 at the instance of his brother Bablu are eschewed from consideration, there are otherwise enough circumstances to sustain the finding of conviction, in that the accused Suman had conspired with Mohan Lal to commit murder of her husband Mahesh, who had been continuously objecting to their illicit relationship and that he (Mahesh) failed to dissuade his wife to abstain from the adulterous life. Even though the chain of circumstances against the accused Suman proved the charge of murder for offence u/s.302 IPC, which is why she has been convicted for the substantive offence of Section 302 as also with the aid of Section 120B IPC, the evidence on record fall short of against the accused-Mohan Lal for the charge of murder, but there are very many circumstances to prove the charge of conspiracy against him. In our considered view, the accused Mohan has rightly been convicted for the offence u/s.302 read with Section 120B IPC. 15. In view of above discussion, we do not find any infirmity in the impugned judgement as well as any merit in the appeals. Both the appeals are therefore dismissed.