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2019 DIGILAW 121 (RAJ)

Ranveer Singh Mahla v. State of Rajasthan

2019-01-09

BANWARI LAL SHARMA, MUNISHWAR NATH BHANDARI

body2019
JUDGMENT Munishwar Nath Bhandari, J. - By this criminal appeal, challenge is made to the order dated 5.1.2015, passed by the Additional Sessions Judge No.2, Jhunjhunu in Sessions Case No.42/2013 (181/2011) (158/2011). The appellant has been convicted for offence under sections 302, 498A and 201 IPC and sentenced as under - 302 IPC - life imprisonment with fine of Rs. 5,000/-, in default to pay fine, to further undergo six months imprisonment; 498A IPC - two years' rigorous imprisonment and fine of Rs. 400/-, in default to pay fine, to further undergo two months' imprisonment and 201 IPC - three years' rigorous imprisonment with file of Rs. 600/-, in default to pay fine, to further undergo four months' imprisonment. All the sentences have been ordered to run concurrently. BRIEF FACTS OF THE CASE 2. An FIR was registered at Police Station - Bagad, District - Jhunjhunu on a written report dated 10.6.2011 made by complainant Mahendra Singh. It was stated that his sister Sajna was married to Ranveer Singh Jat (accused), who made a missing report of Sajna on 8.6.2011 stating that in the night of 6.6.2011 she left the house. He and his brothers made efforts to trace out Sajna but failed. He has further stated that accused Ranveer Singh used to beat and harass his sister Sajna. He had shown his suspicion on the accused. It was alleged that accused Ranveer Singh used to demand dowry. He may have killed his sister and suppressed her dead body. 3. On the aforesaid written report, FIR No.88/2011 was registered against the accused appellant for offence under sections 498A and 302 IPC. After investigation, charge sheet was filed with addition of section 201 IPC. It is looking to the fact that after the arrest of the accused, he made disclosure under section 27 of the Evidence Act about the dead body of deceased Sajna and on his disclosure, it was dug out from his house. The addition of offence under section 201 IPC was for the aforesaid reason. 4. The trial court heard the matter for framing of charges. The accused did not plead guilty for the offence under sections 302, 498A and 201 IPC and claimed trial thus it commenced. The prosecution produced nine witnesses apart from exhibiting twenty three documents to prove their case. 4. The trial court heard the matter for framing of charges. The accused did not plead guilty for the offence under sections 302, 498A and 201 IPC and claimed trial thus it commenced. The prosecution produced nine witnesses apart from exhibiting twenty three documents to prove their case. Statement of the accused was recorded under section 313 CrPC, 1973 and he exhibited D1 - copy of Rojnamcha. The trial court convicted and sentenced the accused appellant, as described above. After marshalling the evidence led by the parties, trial court found that the accused appellant caused two injuries to the deceased on vital part and then packed the dead body in a plastic bag and buried it by digging a pit in the house belonging to him. The dead body was recovered on the disclosure made by the accused under section 27 of the Evidence Act. It was even recovery of 'phawara' on his disclosure. It was used to dig out the pit for placing the dead body. The trial court even found that to mislead the police, he made a missing report of the deceased on 8.6.2011 prior to the FIR dated 10.6.2011. 5. The trial court even referred the statements of the witnesses to show motive of the accused appellant to cause the offence. Accordingly, after marshalling the evidence led by the parties, the order under challenge was passed. ARGUMENTS OF THE APPELLANT SIDE 6. Learned counsel for the accused appellant submit that after recovery of the dead body of Sajna, it was sent for post mortem. It was conducted by PW-6-Dr Natthu Singh. The post mortem report is Ex.P.15. The post mortem describes the injuries on the person of the deceased and even the cause of death but it does not show that those injuries were sufficient to cause death. In absence of such an opinion in the post mortem report, case of the accused appellant would fall in one of the exceptions of section 300 IPC. The intention of the accused appellant could not have been inferred to cause culpable homicide amounting to murder thus a case for conviction for offence under section 302 IPC would not be made out, rather, it would be under section 304 Part I IPC. The intention of the accused appellant could not have been inferred to cause culpable homicide amounting to murder thus a case for conviction for offence under section 302 IPC would not be made out, rather, it would be under section 304 Part I IPC. The prayer is accordingly made to set aside the order of the trial court for conviction and sentence of the accused appellant for offence under section 302 IPC. The accused appellant has already served the sentence for more than seven years and six months thus he may be ordered to be released on the sentence already undergone. 7. To support the argument, learned counsel has made reference of the judgments of the Apex Court in the case of " Virsa Singh v. State of Punjab", AIR 1958 SC 465 and "Om Prakash v. State of Haryana", AIR 1981 SC 642 . The Supreme Court has held that in absence of an opinion that the injuries were sufficient to cause death in the ordinary course, accused would be entitled to get benefit of one of the exceptions of section 300 IPC. 8. It is also stated that even if the post mortem report is looked into, only one injury was caused which resulted in two marks on vital part of the body. The accused appellant did not give repeated blows to the deceased and, thereby also, he is entitled to get benefit of one of the exceptions of section 300 IPC as he had no intention to cause injuries to the deceased which may amount to culpable homicide amounting to murder. ARGUMENTS OF THE SIDE OPPOSITE 9. Learned Public Prosecutor has opposed the arguments raised by learned counsel for the accused appellant. A reference of the evidence brought by the prosecution has been given. It is stated that the post mortem report Ex.P-15 denotes not only the injuries to the deceased on vital part of the body but those injuries were the cause of death. PW-6-Dr Natthu Singh, in his court statement, indicated that the injuries caused to the deceased were sufficient to cause death in the ordinary course and, accordingly, the main argument raised by learned counsel for the accused appellant is not made out, rather, for it, learned counsel has ignored the statement of PW-6. It is more so when said witness was not cross examined in reference to the aforesaid statement. It is more so when said witness was not cross examined in reference to the aforesaid statement. It is to find out as to why, in post mortem report, injuries were not shown to be sufficient to cause death in the ordinary course and then to make such a statement before the trial court. In absence of the cross examination on the vital issue, the statement in chief was rightly relied by the trial court. In fact, there was no reason for the trial court to disbelieve the testimony of PW-6-Dr Natthu Singh not only in regard to the injuries sustained by deceased Sajna but its nature apart from it being cause of death and, lastly, it was sufficient to cause death in ordinary course. In view of the above, a case is not made out to bring it in one of the exceptions of section 300 IPC. 10. It is also stated that the injuries sustained by the deceased have been described in post mortem report. The deceased has received two injuries and not one as stated by learned counsel for the appellant. PW-6-Dr Natthu Singh was examined by the prosecution and he has stated about two injuries to the deceased. No question was asked in the cross examination about number of injuries. In view of the above, even second argument raised by learned counsel for the accused appellant may not be accepted. 11. The facts of the case have otherwise been narrated. It is not only to show conduct of the accused appellant but the manner in which the occurrence was caused by him where he killed his wife, packed the dead body in a plastic bag and suppressed after digging a pit in the house where accused was residing. To cover up the story, he made a missing report of his wife knowing it well that she is no more. The conduct of the accused appellant has also been seen by the trial court. Taking into consideration the aforesaid, prayer is made to dismiss the appeal. FINDING OF THE COURT 12. We have considered rival submissions of the parties and perused the record carefully. 13. Before appreciation of legal issues raised by learned counsel for the accused appellant, we may discuss the evidence led by the prosecution to prove its case. 14. A written report Ex.P-1 was given by complainant Mahendra Singh, brother of deceased-Smt Sajna. FINDING OF THE COURT 12. We have considered rival submissions of the parties and perused the record carefully. 13. Before appreciation of legal issues raised by learned counsel for the accused appellant, we may discuss the evidence led by the prosecution to prove its case. 14. A written report Ex.P-1 was given by complainant Mahendra Singh, brother of deceased-Smt Sajna. He had shown his doubt about killing of his sister and then suppression of her dead body by the accused appellant. It was in reference to his past conduct and behaviour with his sister. She was being harassed for dowry initially and, subsequently, for other reasons. They were not having cordial relations thus shown his suspicion. 15. An FIR was lodged on it followed by investigation. The accused appellant was arrested by the police and on his disclosure, dead body was recovered. PW-1 Mahendra Singh has proved inquest report of the deceased Ex.P-3. The dead body was given vide Ex.P-4. The arrest memo Ex.P-5 was also proved by him. The dead body was put in a white polythene bag recovered vide memo Ex.P-6. A 'lathi' (Ex.P-9) used to cause injuries was also recovered on the disclosure of the accused appellant and was proved by the said witness apart from recovery of 'phawara' by which earth was dug to suppress the dead body, which is exhibited as Ex.P-11. 16. The said witness was cross examined by the accused but his statement could not be demolished. His statement has been corroborated by PW-2-Gokul chand. He has proved Ex.P- 3-'fard laash', Ex.P-5-arrest memo of accused appellant and Ex.P- 6-recovery memo of polythene bag in which dead body was kept. He has also proved recovery of 'lathi' vide memo Ex.P-9 and even 'phawara' Ex.P-11. He has thus corroborated the statement made by PW-1-Mahendra Singh. The statement of PW-2 has been corroborated by PW- 3-Hawa Singh. It is in reference to the relations of accused husband and deceased-wife. PW-5-Vijendra has also supported the prosecution case and corroborated the statement of the witnesses PW-2- Gokul chand and PW-4-Vidhyadhar. PW-6-Dr Natthu Singh is a material witness. He has described the injuries to the deceased and proved the post mortem report Ex.P-15. He has given the cause of death and further stated that injury No.1 and 2 were sufficient to cause death in the ordinary course. PW-6-Dr Natthu Singh is a material witness. He has described the injuries to the deceased and proved the post mortem report Ex.P-15. He has given the cause of death and further stated that injury No.1 and 2 were sufficient to cause death in the ordinary course. The said witness was cross examined by the accused appellant but he did not ask any question in reference to the main issue raised by learned counsel for the accused appellant herein. It was not asked in reference to Ex.P-15 where the opinion about the injuries was given and shown to be cause of death thus the statement in chief was believed by the trial court in absence of any cross examination. 17. The prosecution produced PW-9-Madhoram, who conducted investigation of the case. He has proved documents produced by the prosecution and articles before the court. The articles so recovered were kept in Malkhana and, for that, Malkhana register was also produced and marked as Ex.P-16A. 18. In view of the above, prosecution could prove its case beyond doubt. It is not only that the deceased has received two injuries on vital part of the body, as given in Ex.P-15 and proved by Dr Natthu Singh-PW-6 but also recovery of the dead body on the disclosure made by the accused under section 27 of the Evidence Act. The disclosure is Ex.P-19. It is apart from recovery of 'lathi' vide disclosure Ex.P.20 and even a 'phawara' Ex.P.-18, a disclosure under section 27 of the Evidence Act. The site place of the recovery of the articles has also been proved by the prosecution. 19. Accordingly, it is a case where, after causing the injuries and death of the deceased, the appellant packed the dead body in a white plastic bag and after digging the earth by 'phawara', suppressed it. No one was knowing about the dead body other than the accused appellant thus recovery of dead body was made on the disclosure made by the accused. It was recovered from his own house. Section 106 of the Evidence Act comes into play and in almost similar circumstances, the Apex Court decided an appeal recently in the case of " Asar Mohammad & ors v. State of UP", AIR 2018 SC 5264 . It was recovered from his own house. Section 106 of the Evidence Act comes into play and in almost similar circumstances, the Apex Court decided an appeal recently in the case of " Asar Mohammad & ors v. State of UP", AIR 2018 SC 5264 . It has made reference of the judgment in the case of " Stirland v. Director of Public Prosecution", 1994 AC 315 or (1994) 2 All ER 13 (HL) and " State of Punjab v. Karnail Singh", (2003) 11 SCC 271 . Para 14 of the judgment in the case of Trimukh Moroti Kirkan v. State of Maharashtra", (2006) 10 SCC 681 , referred in the judgment by the Apex Court in the case of Asar Mohammad (supra) is quoted hereunder for ready reference- "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with travelling on a railway without ticket. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 20. The proposition of law propounded by the Apex Court is not only on the facts but in reference to section 106 of the Evidence Act and applies to the facts of this case. 21. Learned counsel for accused appellant has raised an issue in reference to section 300 IPC and referred the judgments of the Apex Court in the case of Virsa Singh and Om Prakash (supra). The argument aforesaid has been raised in ignorance of the statement of PW-6-Dr Natthu Singh. The Apex Court in the case of Virsa Singh (supra) has not propounded ratio that in absence of an opinion that the injury was sufficient to cause death in the ordinary course it would be covered by one of the exceptions of section 300 IPC. It is more so when in the post mortem report as well as the statement of Dr Natthu Singh (PW- 6), it has come that the injuries to the deceased was the cause of death. The injuries were on the vital part of the body, thereby, even if the judgment referred by learned counsel for the appellant is applied, required ingredients are made out to convict the accused appellant for an offence under section 302 IPC. It is apart from the conduct of the accused appellant where he suppressed the dead body of his wife to mislead the prosecution and, for that, even a missing report was lodged. 22. The accused appellant has not explained about his conduct while making statement under section 313 CrPC, 1973 and, for that also, we are unable to accept the argument raised by learned counsel for the appellant and the judgments of the Apex Court in the case of Virsa Singh and Om Prakash (supra). 22. The accused appellant has not explained about his conduct while making statement under section 313 CrPC, 1973 and, for that also, we are unable to accept the argument raised by learned counsel for the appellant and the judgments of the Apex Court in the case of Virsa Singh and Om Prakash (supra). Para 22 of the judgment of the Apex Court in the case of Trimukh Moroti Kirkan (supra) referred by the Apex Court in the case of Asar Mohammad & ors (supra) in para 12, is quoted hereunder for ready reference- "22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C., 1973 The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime." 23. The post mortem report shows two injuries on vital part and have been stated by PW-6-Dr Natthu Singh thus we are unable to accept that the deceased sustained only one injury, rather, it is a case where the accused has given repeated blows to the deceased with an intention to cause her death and immediately thereafter, he suppressed the dead body. 24. 24. Since no argument in regard to conviction and sentence for offence under sections 498A and 201 IPC has been raised and learned counsel for the accused appellant vehemently argued for conviction of the accused for offence under section 304 Part I IPC only, the order of the trial court is maintained for conviction and sentence for offence under sections 498A and 201 IPC. 25. Taking into consideration the evidence available on record and finding no substance in the arguments raised by learned counsel for the accused appellant, we do not find any merit in this criminal appeal. The appeal fails and is dismissed accordingly.