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2019 DIGILAW 1835 (RAJ)

Chandrawali W/o Sheokaran v. State of Rajasthan

2019-07-01

SANDEEP MEHTA, VINIT KUMAR MATHUR

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JUDGMENT : SANDEEP MEHTA, J. 1. The appellants herein have been convicted and sentenced as below vide judgment dated 02.09.2013 passed by learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 38/2012:- Name of the accused appellant Offence for which convicted Sentence awarded 1. Gandhi Ram @ Mahendra 2. Sahab Ram 3. Sheokaran 4. Smt. Chandrawali 302/34 IPC Life imprisonment alongwith a fine of Rs. 3000/- and in default of payment of fine, further to undergo imprisonment of one year. 302/120-B IPC Life imprisonment alongwith a fine of Rs. 3000/- and in default of payment of fine, further to undergo imprisonment of one year. 498-A IPC Simple imprisonment of three years alongwith a fine of Rs. 1000/- and in default of payment of fine, further to undergo imprisonment of six months. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374 (2) CrPC. 3. Brief facts relevant and essential for disposal of the appeal are noted herein-below. 4. Chunniram (PW-2) lodged a typed report (Ex.P/1) with the SHO, Police Station Nohar on 12.09.2008 at 10.00 a.m. alleging inter alia that his daughter Rajbala was married to Gandhi Ram @ Mahendra, son of Sheokaran, by caste Jat, resident of Kharsandi about 3-4 years ago. He had given wholesome dowry in the marriage, but Rajbala’s husband, Jeth Sahab Ram, father-in-law Sheokaran and mother-in-law Smt. Chandrawali were not happy with the articles given in dowry and thus, just two months after the marriage, they started harassing, humiliating and torturing Rajbala and started demanding a motorcycle and a sum of Rs. 50,000/- from her. The complainant got two to three Panchayats convened, in which Khayaliram, resident of Bijarnia, Omprakash, resident of Ladam, also participated. In the presence of these persons, the matrimonial relatives of Smt. Rajbala, including her husband, persisted with their demands. However, the Panchayat counselled the accused and advised them to keep Rajbala happy in the matrimonial home. After every Panchayat that was convened, Rajbala would be sent back to her matrimonial home and the accused would refrain from the demands for some time, but thereafter they would again resume their cruel behaviour with the deceased. However, the Panchayat counselled the accused and advised them to keep Rajbala happy in the matrimonial home. After every Panchayat that was convened, Rajbala would be sent back to her matrimonial home and the accused would refrain from the demands for some time, but thereafter they would again resume their cruel behaviour with the deceased. About 4 months ago, Rajbala’s husband, father-in- law, mother-in-law and Jeth beat her up and turned her out of the matrimonial home alongwith the minor child Kanhaiya Lal in only the clothes worn by them warning that she would be allowed to return to the matrimonial home only if her father agreed to give a sum of Rs. 50,000/- and a motorcycle to them and if she returned to the matrimonial home without bringing these valuables, she as well as her son would be killed. Rajbala returned to her maternal home and shared her plight with the informant, on which he went to village Kharsandi and met Rajbala’s matrimonial relatives, who persisted with their demand of a motorcycle and Rs. 50,000/- in cash. The complainant again convened a Panchayat, in which ex-Sarpanchas Hanuman and Dungar Chahar were present. They assured that the complainant’s daughter would not be maltreated in future. The complainant asked them to take responsibility, but both the ex- Sarpanches shirked. Two days after Rakshabandhan, Rajbala’s husband, mother-in-law, father-in-law, Jeth, uncle-in-law Indraj came to the complainant’s house with Patram Burdak and made a request to send Rajbala back to the matrimonial home assuring that she would not be maltreated in future. Rajbala expressed an apprehension in the presence of these persons that she would be killed no sooner she was taken back upon which, Indraj and Patram gave an assurance that they would ensure the safety of Rajbala affirming that she would not face any inconvenience in future. After assuring the complainant in this manner, Rajbala’s husband took her back to Kharsandi. During the night of 11.09.2008, the complainant received information that Rajbala and her son had been killed by her husband, father-in-law, mother-in-law, brother-in-law (Jeth) and uncles-in-law (Kaka Sasur) Indraj and Patram after hatching a conspiracy. The complainant reached the village Kharsandi in the morning, accompanied by Sahab Ram S/o Khetaram, Amichand and Khayaliram and saw the dead bodies of Rajbala and her son Kanhaiya Lal lying in the house with numerous visible injuries. The complainant reached the village Kharsandi in the morning, accompanied by Sahab Ram S/o Khetaram, Amichand and Khayaliram and saw the dead bodies of Rajbala and her son Kanhaiya Lal lying in the house with numerous visible injuries. Rajbala’s Jeth Sahab Ram, father-in-law Sheokaran and mother-in-law Chandrawali were present near the dead bodies. The complainant and his companions asked them as to how the incident had happened, on which, they blurted out that they had conspired and killed Rajbala and Kanhaiya Lal because their demand for a sum of Rs. 50,000/- in cash and a motorcycle had not been satisfied. 5. On the basis of this report, an FIR No. 453/2008 (Ex.P/2) was registered at the Police Station Nohar for the offences under Sections 498-A/302, 304-B/120-B and 34 IPC. The investigation was assigned to the Circle Officer Nohar. After concluding investigation, a charge-sheet came to be filed against the accused appellants for the offences under Sections 302, 498- A, 406/34 and 120-B IPC. As the offences were Sessions triable, the case was committed to the Court of Additional Sessions Judge (Fast Track) No. 2, Hanumangarh, Headquarter Nohar for trial. 6. The trial court framed charges against the accused for the offences under Sections 406, 498-A, 302/120-B, 302/34 IPC. They pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses and exhibited 53 documents in support of its case. The accused were questioned under Section 313 Cr.PC and were confronted with the circumstances appearing against them in the prosecution evidence, which they denied and claimed to have been falsely implicated owing to prior enmity. The accused Gandhi Ram claimed that he had an issue with his wife Rajbala over the paternity of the child Kanhaiya. He categorically stated that he had never established physical relations with his wife, but despite that she had conceived. On the fateful day, Rajbala confronted him saying that if Kanhaiya was not his son, then she would throw him away. He got annoyed, upon which Rajbala threw Kanhaiya on floor. Agricultural implements were lying in the room and Kanhaiya fell on them and received injures. The accused reprimanded Rajbala that the fault was hers and implored her as to why she was venting out her anger on the child, on which Rajbala started grappling with him. He pushed Rajbala, who fell on the agricultural implements and got injured. Agricultural implements were lying in the room and Kanhaiya fell on them and received injures. The accused reprimanded Rajbala that the fault was hers and implored her as to why she was venting out her anger on the child, on which Rajbala started grappling with him. He pushed Rajbala, who fell on the agricultural implements and got injured. On hearing the cries, his brother and father came around to his house. He claimed that his mother was living with his brother Amar Singh for the previous 6 to 8 months and that she was not living with him or his brother Sahab Ram. Smt. Chandrawali stated in her explanation that she was living with her son Amar Singh for last 6 to 8 months. On the fateful day, she was at Amar Singh’s house and did not participate in the incident. Sahab Ram claimed in his statement that he had taken up a separate residence from Gandhi Ram about 6 to 8 months ago. His father used to live with him and that on hearing the fervent cries coming from his brother’s house, he and his father rushed there. They saw Kanhaiya and Rajbala lying injured near the agricultural implements. He also claimed that they were having a prior land dispute with PW-1 Dayaram. Almost identical statement was given by Sheokaran. As many as 8 witnesses were examined and 11 documents were exhibited in defence. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellants as above by the impugned judgment. Hence, this appeal. 7. Mr. Mridul Jain, learned counsel representing the appellants, vehemently and fervently urged that the entire prosecution case is false and fabricated. The appellants Sheokaran, Sahab Ram and Chandrawali were not living with the appellant Gandhi Ram for the last 6 to 8 months. The witness Dayaram, being the son of Ram Kumar, who is the real brother of accused Sheokaran, was on inimical terms with the accused party owing to the longstanding land dispute and that he gave false evidence against the accused because of this animosity. He also urged that the statement of Dayaram was recorded by the Investigating Officer after a significant delay and thus, his evidence is not reliable. He also urged that the statement of Dayaram was recorded by the Investigating Officer after a significant delay and thus, his evidence is not reliable. He further submitted that the defence plea taken by the accused Gandhi Ram in his statement under Section 313 Cr.PC that the deceased received the injuries by falling on the agricultural implements is probablized by the site inspection plan and the evidence of the Investigating Officer. 8. He urged that Ex.D/8, the Roznamcha entry of the incident made by Onar Singh posted as SHO, Police Station Nohar on 11.09.2008, completely discredits the entire prosecution case and falsifies the allegations set out in the FIR and the oral evidence of Dayaram (PW-1) and Chunniram (PW-2). He also referred to the statement of DW-1 Sushri Suman, daughter of the accused Sahab Ram, who gave categoric evidence to the effect that she saw Mahendra and Rajbala fighting with each other. In this quarrel, Rajbala threw her son down on the floor. Thereafter she herself fell down on the floor. Learned counsel urged that the girl has given cogent evidence establishing the fact that all the accused were living separately. Mr. Jain further submitted that the trial court erred in drawing an inference that since the bloodstained clothes recovered at the instance of the accused Sahab Ram and Sheokaran tested positive for the presence of ‘O’ group blood, their participation in the incident is also established. He urged that this circumstance rather establishes the defence theory that Chandrawali, Sheokaran and Sahab Ram were living separately from Gandhi Ram @ Mahendra. He urged that it is the categoric defence of the two accused, i.e. Sheokaran and Sahab Ram, that when they heard the fervent cries coming from the room of Gandhi Ram, they rushed there and saw the two victims lying on the floor in a pool of blood. When they tried to check the victims, their clothes got blood stains. He submitted that no weapon of offence was recovered from either Sheokaran or Sahab Ram and no blood-stained clothes were recovered at the instance of Smt. Chandrawali, which completely discredits the prosecution case. Thus, as per Mr. Jain, the learned trial Judge committed a grave error in law while pressing into service Section 106 of the Evidence Act and shifting the burden of proof for convicting the accused appellants. Thus, as per Mr. Jain, the learned trial Judge committed a grave error in law while pressing into service Section 106 of the Evidence Act and shifting the burden of proof for convicting the accused appellants. He further contended that the finding recorded by the trial court that all the accused and the deceased were living together in a common residence is totally contrary to the evidence available on record and hence, the accused deserve to be acquitted. With these fervent contentions, Mr. Jain implored the court to accept the appeal in entirety. In the alternative, he urged that as the appellants Sheokaran, Sahab Ram and Smt. Chandrawali were living separately, they deserve to be given the benefit of doubt as they cannot be held responsible for the charges with the aid of the reverse burden of proof applicable by virtue of Section 106 of the Evidence Act. 9. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by Mr. Jain. Referring to the statement of the eye-witness PW-1 Dayaram, being the real nephew of accused Sheokaran, he urged that the witness gave categoric evidence fortifying the complainant’s assertion that the deceased was assaulted and killed by all the four accused persons. No significant suggestion was given to the witnesses regarding the theory of enmity put forth in the defence evidence and thus, criticism of this witness’s evidence made by the defence counsel is without any foundation. Learned Public Prosecutor also referred to the statement of the Investigating Officer Shri Vipin Sharma (PW-10) and urged that when the Officer prepared the site inspection plan (Ex.P/3) and the site inspection memo (Ex.P/4), he did not notice any agricultural implements lying at the scene of occurrence. He submitted that the broken bangles of Smt. Rajbala were seen lying scattered around the place of occurrence, which clearly implies that the accused persons first assaulted Smt. Rajbala in the chowk and then killed her by sharp weapon blows. He also urged that as per the statement of Medical Officer Dr. Santlal Chhipa (PW-7), he noticed no less than 5 clean cut incised wounds on the body of Smt. Rajbala with the neck injury proving fatal. He also urged that as per the statement of Medical Officer Dr. Santlal Chhipa (PW-7), he noticed no less than 5 clean cut incised wounds on the body of Smt. Rajbala with the neck injury proving fatal. He contended that as per the evidence of the doctor, the child Kanhaiya Lal had numerous injuries, which observation fortifies the testimony of Dayaram (PW-1) that the child was thrown down on the floor and was then assaulted brutally. He, thus, urged that the evidence of the prosecution witnesses, more particularly, the eye-witness Dayaram, is thoroughly corroborated by surrounding circumstances available on record and hence, no interference is called for in the impugned judgment. 10. We have given our thoughtful consideration to the submissions advanced at bar. We have also sifted through the entire evidence available on record oral as well as documentary. The principal accused Gandhi Ram took a pertinent plea in defence that the injuries to the two deceased were caused by falling on the agricultural implements. Though this plea is prima facie belied by the site inspection proceedings, we first take note of the injuries observed by the medical jurist on the two dead bodies while conducting autopsy. 11. Dr. Santlal Chhimpa (PW-7), a member of the medical board, deposed that while conducting postmortem upon the body of Kanhaiya, aged one and half years, the following injuries were noticed: 1. Bruise admeasuring 6 in. x ¼ in. on the right side of the chest (blueish) extending from the epigastrium to armpit. 7th rib on right side was broken and the right side lobe of lung was ruptured and 200 ml. Blood was collected in right pleural cavity. 2. Incised wound 3 cm. x 1 cm. x 1 cm. on the right side of cheek transversely extending from right nostril towards ear. 3. Vertical abrasion 2 in. x ¼ in. on the backside of the ear. 4. Bruise 2 cm. x 1 cm area at right side of the neck. 12. The Medical Board opined that the cause of death of Kanhaiya was excessive bleeding because of rupture of lung, which was sufficient in the ordinary course of nature to cause death. His postmortem was proved as Ex.P/35. 13. As per the evidence of the doctor, the following injuries were noticed while conducting postmortem on the dead body of Smt. Rajbala: 1. Incised wound on the left palm region 3 cm. His postmortem was proved as Ex.P/35. 13. As per the evidence of the doctor, the following injuries were noticed while conducting postmortem on the dead body of Smt. Rajbala: 1. Incised wound on the left palm region 3 cm. x 0.5 cm. x 0.5 cm. 2. Incised wound 1 cm. x 0.5 cm. cutting the bone on the left index finger proximal phalanx area. 3. Incised wound 9 cm. x 2 cm. x bone deep on the right side of the head on the frontal bone. The bones under the injury were splintered and a bone piece was embedded inside the brain. 4. Incised wound 7 cm. x 3 cm. x 3 cm. transversely on the right side of the face proceeding from the nose to the ear. 5. Incised wound 11 cm. x 4 cm. x 7 cm. on the right side of the neck proceeding transversely below the injury No. 4 as a result whereof, the large blood vessels as well as second cervical vertibra were severed and spinal chord was partially destroyed. 14. The neck injury was opined to be sufficient in the ordinary course of nature to cause death. The postmortem report of Smt. Rajbala was proved as Ex.P/34. 15. Not even a bald suggestion was given to the doctor in cross-examination that the injuries of either of the deceased persons could have been caused by falling on agricultural implements. We are of the firm opinion that if at all the defence intended to raise a plea that the injuries to the two deceased were caused by falling on agricultural implements, then the medical officer had to be suggested about the precise nature of agricultural implements with which the injuries were claimed to have been received so as to seek an explanation in this regard. However, as noted above, not even a bald suggestion was given to the doctor that the injuries caused to the two deceased could possibly have been caused by falling on agricultural implements. 16. From a careful perusal of the statement of the Investigating Officer Shri Vipin Sharma (PW-10) and the cross-examination conducted from him, it is clear that no suggestion was given by the defence to this witness in his cross-examination that he noticed any agricultural implements lying in the room, where the murders took place. 17. 16. From a careful perusal of the statement of the Investigating Officer Shri Vipin Sharma (PW-10) and the cross-examination conducted from him, it is clear that no suggestion was given by the defence to this witness in his cross-examination that he noticed any agricultural implements lying in the room, where the murders took place. 17. In this background, we are of the firm opinion that the flimsy defence theory put forth by the accused Gandhi Ram that the injuries were received by the two deceased as a result of fall on agricultural implements is totally far-fetched and unsubstantiated. 18. The prosecution case is founded on two sets of evidence. The primary evidence on which the case of the prosecution rests is the statement of Dayaram (PW-1), who claims to be an eye-witness of the incident. The other set of evidence, which the prosecution relies upon is in the form of the statements of the first informant Chunniram (PW-2), Khayaliram (PW-3) and Amichand (PW-4), all of whom alleged that Smt. Rajbala was being harassed and humiliated in the matrimonial home on account of demand of a motorcycle and a sum of Rs. 50,000/- and that when they reached the place of incident in the morning of 12.09.2008, the dead bodies of Rajbala and Kanhaiya were lying in the room and the accused Chandrawali, Sheokaran and Sahab Ram, were sitting outside. Upon being confronted, the accused confessed that they had killed the lady and her child because their demand of Rs. 50,000/- and motorcycle had not been satisfied. 19. We first proceed to examine the evidence of the witness Dayaram (PW-1) so as to find out whether his testimony is of sterling worth or not. Dayaram (PW-1) stated that on 11.09.2008 at 05.00 p.m. he was at his home, when he heard someone crying from the house of Sheokaran. Those cries, according to him, were of Rajbala. He further stated that on scaling the wall dividing their houses, he saw that all the accused were trying to push Rajbala in the kund and she was crying for help. Upon this, Dayaram confronted the accused, to which they hurled abuses and threatened that he too would be killed. Thereafter, all the accused took the deceased inside the room. He further stated that on scaling the wall dividing their houses, he saw that all the accused were trying to push Rajbala in the kund and she was crying for help. Upon this, Dayaram confronted the accused, to which they hurled abuses and threatened that he too would be killed. Thereafter, all the accused took the deceased inside the room. Soon thereafter, Sahab Ram came out, picked up a Kassi and went back in the room and after this, the witness did not hear any cries of Rajbala. Later on when Sahab Ram came out, his clothes were drenched in blood. He then took minor child of Rajbala to the baithak and threw him down. For once the minor child cried, but thereafter no cries were heard. The four accused then came out of the room and their clothes were drenched in blood. He also stated that at about 12- 1 o’ clock in the night, he informed Chunnilal of the incident. The witness stated in his cross-examination that on the day of incident, his father came home at 06.00 p.m. and his wife and his brother’s wife also came from the field. He admitted that he did not tell about the said incident to the ward panch, his father, wife or his brother’s wife. He further stated that soon after he had witnessed the incident, he had become unconscious. He regained consciousness only at 12-1 o’ clock. When he regained consciousness, he saw many persons outside his house, but he did not narrate the incident to them as according to him, they were also the ones who had witnessed the incident with their own eyes. He further stated that he did not know whether police had come at the place of incident or not. He also stated that he did not know whether the police had come to the place of incident the next day or not since he never went to the house of the accused. Upon further probing, he admitted that the police officer came to the village the next day at about 10-11’ o clock and made enquiry from him. He told the police of the place from where he had seen the incident and that he had become unconscious. The witness feigned ignorance as to why this fact was not mentioned in his police statement (Ex.D/1). He told the police of the place from where he had seen the incident and that he had become unconscious. The witness feigned ignorance as to why this fact was not mentioned in his police statement (Ex.D/1). He categorically denied the suggestion of the defence that his statement was recorded on the day next to the incident and clarified that it was recorded after four days. He further stated that he had told the police of the place where the accused threw the minor child, but then elaborated that he did not go to the place of occurrence along with the police but had told them of the same from the spot where he was standing near the wall. 20. The defence has criticized the evidence of this witness on the premise that he and the accused party were on inimical terms owing to a land dispute and that the statement of this witness was recorded by the Investigating Officer under Section 161 Cr.PC after a significant delay. On perusal of the cross- examination conducted from Dayaram (PW-1) and the Investigating Officer Shri Vipin Sharma (PW-10), it does come to light that the witness did not divulge to the police officer present at the spot on the very day of the incident that he had seen the assault with his own eyes. The police statement of Dayaram was recorded on 16.09.2008, i.e. after 4 days of the incident. The witness is the next door neighbor of the accused. He admitted that his wife hails from the complainant’s village. The defence has also cited enmity because of land dispute as one of the grounds to challenge the veracity of this witness. The witness is a close relative of the accused party as his father Shri Ram Kumar is the real brother of the accused Sheokaran. Dayaram also stated in his evidence that he is a disabled man, thus, he usually lives at his house. The common wall dividing the houses of the accused and witness is stated to be 3 to 4 feet high and thus, the chance of Dayaram having seen the incident with his own eyes is highly probable. Dayaram also stated in his evidence that he is a disabled man, thus, he usually lives at his house. The common wall dividing the houses of the accused and witness is stated to be 3 to 4 feet high and thus, the chance of Dayaram having seen the incident with his own eyes is highly probable. The witness also claimed in his evidence that he called Chunnilal and told him of the incident in the night at about 12.00 to 1.00 a.m. Chunnilal also mentioned in the written report (Ex.P/2) that he received a call regarding the incident from Village Kharsandi in the night time. 21. The theory of enmity was sought to be established by the defence during its evidence. The witness Hanuman (DW-3) stated that he knows Sheokaran and Ram Kumar, who are real brothers. They quarelled with each other. Panchayats were convened and thereafter, both entered into a compromise. He claims to have put his thumb impression on the compromise document. 22. The evidence of Bhaglaram (DW-6), who proved the Roznamcha entry (Ex.D/6) pertaining to quarrel between Sheokaran and Ram Kumar, clearly establishes the factum of prior enmity between them. There is yet another significant aspect in the statement of this witness, wherein he deposed that Onar Singh, the then SHO, Police Station Nohar, received an information regarding the two murders in the evening of 11.09.2008. This fact was entered in the Roznamcha entry (Ex.D/7). Onar Singh, SHO, departed for the place of occurrence at 06.10 p.m. and returned back at 11.30 p.m. The Roznamcha entry upon returning of the SHO has been proved as Ex.D/8. The SHO thereafter again went to the place of occurrence at 7.30 a.m. on 12.09.2008 and returned back to the police station and made a fresh entry in the Roznamcha. The SHO Onar Singh was the first police officer to reach the place of occurrence and thus, his evidence was vital for unfolding the truth of the matter. We have carefully perused these Roznamcha entries (which are public documents), which are heavily relied upon by the defence. SHO Shri Onar Singh made Roznamcha entry no. The SHO Onar Singh was the first police officer to reach the place of occurrence and thus, his evidence was vital for unfolding the truth of the matter. We have carefully perused these Roznamcha entries (which are public documents), which are heavily relied upon by the defence. SHO Shri Onar Singh made Roznamcha entry no. 494 (Ex.D/8) after returning from the place of occurrence, which is reproduced herein-below for the sake of ready reference:- ^^bl le; eu ,lŒ,pŒvksŒ vksukM+flag e; eyfteku ds cgokys [kkudh jiV jkstŒ vkt 490 rkjh[k gktk dk x;k gqvk okfil vk;k ntZ jgs fd eqrkfcd bZryk ekSdk [kjlaMh esa edku ';ksdj.k [kksFk fuŒ [kjlaMh ij igqapk edku ds ckgjh dejk ';ksdj.k [kksFk dh iq=o/kw o ,d cPps dh yk'k [kwu ls yFkiFk iM+h gq;h FkhA ?kj ij vksj dksbZ ugha feyk FkkA vM+ksl&iM+ksl ls iwNk rks e`rdk dk uke jktckyk iRuh egsUæflag [kksFk gksuk crk;k rFkk cPpk jktckyk dk iq= gksuk crk;kA nksuks ds psgjs o flj o xnZu esa /kkjnkj gfFk;kj dh pksVsa yxh gq;h Fkh okdk D;k gS dSls gqvk dksbZ crkus dks rS;kj ugha gS ncs Loj esa xkao ds yksxksa us dgk fd egsUæ oxSjk buds ?kjokyksa us gh ekjk gSA e`rdk ds ihgj i{k dks lwpuk nh xbZ ekSds dk lqjf{kr j[kk x;kA ihgj i{k ds vkus ij ihgj i{k us dgk fd gekjs ifjokjokyksa ls ckrphr dj ge lqcg fjiksVZ nsxsA bl ij le>kbZ'k dh xbZ exj lqcg gh dk;Zokgh djokus dk dgk bl ij ,pŒlhŒ Ágykn vkseÁdk'k] jk;flag o djuhflag dks 'ko ,u ekSdk fgQktr gsrq [kjlaMh esa NksM+k x;kA gkykr mPpkf/kdkjhx.k dks iwoZ esa Hkh o okilh ij fuosnu fd;s x;s pktZ Fkkuk [kqn fy;sA** (Emphasis Supplied) 23. On perusal of this Roznamcha entry, it becomes clear as day light that the SHO Onar Singh reached the place of incident in the evening of 11.09.2008 itself. No one was found present at the spot where the two dead bodies were seen lying. The villagers did not come forward to state as to how the incident had taken place. Manifestly, the matrimonial family members were called, who also reached the place of incident well before 11.30 p.m., which is the time when the Roznamcha entry (Ex.D/8) was made at the police station. They were asked to give a report, but they refused saying that they would consult the other family members and report the matter in the morning. Manifestly, the matrimonial family members were called, who also reached the place of incident well before 11.30 p.m., which is the time when the Roznamcha entry (Ex.D/8) was made at the police station. They were asked to give a report, but they refused saying that they would consult the other family members and report the matter in the morning. The SHO claims to have heard whispers that Mahendra and his family members were responsible for the murders. The SHO secured the place of incident leaving behind the Constables Prahlad, Omprakash, Karni Singh and Rai Singh and returned to the police station. Thereafter, in the morning at about 7.30 a.m. the SHO Onar Singh alongwith the Circle Officer Shri Shri Vipin Sharma again left for the place of the incident vide Roznamcha entry No. 504 (Ex.D/9). Chunnilal (PW-2) submitted the First Information Report at 10.00 a.m. 24. A close scrutiny of these Roznamcha entries (Ex.D/7 and Ex.D/8) is enough to satisfy the court that the version set out in the FIR and in the evidence of Dayaram that Chunnilal was informed of the murder in the night is totally false and cooked up. As a matter of fact, Dayaram was informed of the unfortunate incident by the police and he reached at the place of occurrence on 11.09.2008 itself in presence of SHO Onar Singh. The SHO requested him to submit a report, but the informant refrained from doing so saying that he would consult his family members and give the report later on. The SHO also tried to find out the details of the incident from the neighbours, but nobody came forward to provide him the details except the murmurs that Mahendra and his family members were responsible for the incident. Apparently, Dayaram (PW-1) had the opportunity to divulge the details of the incident to the police at that time, but he kept conspicuously silent feigning that he had become unconscious on seeing the incident. The duty of examining Onar Singh, the first police officer to reach the spot as a witnesses was upon the prosecution, but he was intentionally withheld. The reason for non-examination of Onar Singh during trial is apparent because his evidence would not have suited the prosecution as the same falsified the version of the first informant and significantly contradicted the theory put forth by him in the FIR. The reason for non-examination of Onar Singh during trial is apparent because his evidence would not have suited the prosecution as the same falsified the version of the first informant and significantly contradicted the theory put forth by him in the FIR. The hesitation/resistance offered by the maternal family members of Smt. Rajbala in reporting the matter to the SHO Shri Onar Singh brings their evidence under a grave cloud of doubt. In our opinion, even if the prosecution withheld SHO Onar Singh, the trial court should have been more vigilant and should have summoned the said Onar Singh in the witness box. 25. It is clear from the Roznamcha entry Ex.D/8 that Onar Singh tried to make enquiries from the neighbours to discern as to how the incident had happened, but nobody came forward. Dayaram is the immediate neighbour of the place of incident. As per his statement, he is a disabled man and generally remains at his house. Thus, apparently, the SHO Onar Singh must have made enquiry from him. The failure of Dayaram to speak out and make a disclosure of the events seen by him at that point of time brings his evidence under a shadow of doubt. If at all had there been a semblance of truth in the version of Dayaram that all the accused were involved in the incident, then in expectation of natural human conduct, he should have taken the first opportunity to divulge at that very moment, the true details as he saw when the SHO Onar Singh was making enquiries at the place of occurrence. Considering the fact that the witness resides just next door to the place of occurrence, he could not have missed the presence of the police authorities on the day of the incident. Of course, he tried to feign that he became unconscious after seeing the incident, but the plea is flimsy and farfetched. As there are undertones of enmity between the accused party and Ram Kumar, father of Dayaram, there was absolutely no reason for him to keep silent when the police visited the place of the incident and tried to collect the details of the incident from probable eyewitnesses on the very day of the incident, i.e. 11.09.2008. The Dy. As there are undertones of enmity between the accused party and Ram Kumar, father of Dayaram, there was absolutely no reason for him to keep silent when the police visited the place of the incident and tried to collect the details of the incident from probable eyewitnesses on the very day of the incident, i.e. 11.09.2008. The Dy. S.P. Shri Vipin Sharma (PW-1) reached the place of incident with Shri Onar Singh, SHO, on 12.09.2008 in the morning at about 07.00 a.m. The various proceedings including preparation of the site inspection plan etc. were started at 07.30 a.m. and were concluded by 02.30 p.m. as is clear from the Roznamcha entry (Ex.D/11). During this period, Dayaram (PW-1), who was all along present in the adjoining house made no efforts whatsoever to come forward and disclose to the Dy. S.P. Shri Vipin Kumar Sharma that he was an eye-witness of the incident or that he had seen the four accused assaulting and killing the victims. Thus, we have no hesitation in holding that Dayaram has not given the true version of the incident while deposing in the court. The witness definitely had a motive to falsely implicate the accused persons because of the prevailing enmity. His brother is in the police and thus, he could not have had any hesitation to speak out at the earliest point of time. The police statement (Ex.D/1) of this witness was recorded as late as on 16.09.2008 and thus, the possibility of his evidence being moulded to suit the prosecution theory cannot be ruled out. Thus, we hold that Dayaram (PW-1) is not a reliable witness. 26. Chunniram (PW-2) tried to portray that he received the information of the incident through a call made by Dayaram. This fact is conspicuously missing in the belated FIR as well as in the previous police statement of Chunniram. Furthermore, a perusal of the relevant Roznamcha entries, which have been elaborated above, clearly establishes that the witness is speaking a blatant lie on this aspect. He definitely had been informed about the incident as the paternal family relatives of Smt. Rajbala, which definitely would include Chunniram, had reached the place of incident on 11.09.2008 itself. As per the Roznamcha entry (Ex.D/8), they were asked by the SHO Shri Onar Singh to give a report of the incident, but they refused to do so. He definitely had been informed about the incident as the paternal family relatives of Smt. Rajbala, which definitely would include Chunniram, had reached the place of incident on 11.09.2008 itself. As per the Roznamcha entry (Ex.D/8), they were asked by the SHO Shri Onar Singh to give a report of the incident, but they refused to do so. The theory put forth in the evidence of Chunniram (PW-2), Khayaliram (PW-3) and Amichand (PW-4) that they, for the first time reached the place of incident in the morning of 12.09.2008 and that the accused Chandrawali, Sheokaran and Sahab Ram were sitting there and that they made an extra-judicial confession in the presence of these witnesses is false and fabricated because as per the Roznamcha entry (Ex.D/8) reproduced supra, the SHO Onar Singh had left behind the four Police Constables for securing the scene of occurrence. Thus, the confession, if at all made by the accused in the presence of the Police Constables, would be hit by Sections 25 and 26 of the Evidence Act. Chunniram (PW-2) alleged in his evidence that the accused used to demand a motorcycle and a sum of Rs. 50,000/- from the deceased and were harassing her on this count. However, in view of the fact that the accused Gandhi Ram @ Mahendra, being the husband of the deceased Smt. Rajbala, had taken a specific plea of infidelity of his wife as cause of the incident, we are not convinced with the prosecution allegation that the murders took place because the dowry demands of the accused were not being satisfied. A strife between the husband and wife owing to the suspicion on the character of the lady is more likely the motive which perpetrated the incident. Thus, we are not inclined to affirm the findings recorded by the trial court in the impugned judgment that it is proved from the evidence of Chunniram (PW-2) that the accused were demanding dowry from the deceased and that she was being harassed on this count. The harassment to Smt. Rajbala in all probability was being meted out by the husband Gandhi Ram @ Mahendra, who suspected the character of his wife, i.e. Smt. Rajbala, and for that reason, he alone can be held responsible for the offence under Section 498-A IPC. The harassment to Smt. Rajbala in all probability was being meted out by the husband Gandhi Ram @ Mahendra, who suspected the character of his wife, i.e. Smt. Rajbala, and for that reason, he alone can be held responsible for the offence under Section 498-A IPC. In his statement recorded under Section 313 Cr.PC accused Gandhi Ram did not dispute and rather admitted that the incident took place in his presence. Of course, he tried to take a plea that both the deceased, i.e. Smt. Rajbala and Kanhaiya received the fatal injuries by falling on agricultural implements, but the fact remains that this theory has not been found probablized in the discussion made above and rather, we are of the firm opinion that the injuries were intentionally inflicted to the deceased Rajbala by sharp weapons and the child was intentionally thrown on the ground. Thus, so far as the complicity of Gandhi Ram in the crime is concerned, the same is duly established by the circumstances appearing in the prosecution evidence; the reverse burden of proof applicable on the said accused by virtue of Section 106 of the Evidence Act and looking to his own version in his statement recorded under Section 313 Cr.PC. As the relationship between the accused Gandhi Ram and his wife Rajbala was severely strained, the possibility of his old parents, i.e. Chandrawali and Sheokaran, having taken up a separate residence with other sons cannot be ruled out. The accused Smt. Chandrawali, Sheokaran and Sahab Ram have taken a specific defence that they were residing separately from Gandhi Ram, who used to reside with his wife in the house, where the murders took place. Thus, the reverse burden of proof under Section 106 of the IPC, which the trial court used against the accused would only operate logically only against the accused Gandhi Ram and not others. As per the site inspection plan, the residential portion occupied by Sahab Ram is distinct from that of Gandhi Ram. The defence witnesses Sushri Suman (DW-1), Amar Singh (DW-4) and Kuldeep (DW-5) gave a categoric deposition that Sheokaran, Chandrawali and Sahab Ram were living separately from Gandhi Ram @ Mahendra. The trial court drew an adverse inference against the accused Sheokaran and Sahab Ram observing that the clothes recovered on the basis of the information supplied by them to the Investigating Officer were stained with blood. The trial court drew an adverse inference against the accused Sheokaran and Sahab Ram observing that the clothes recovered on the basis of the information supplied by them to the Investigating Officer were stained with blood. No blood stained recovery whatsoever was made at the instance of Smt. Chandrawali. The possibility of the clothes of Sahab Ram and Sheokaran getting stained with blood of the deceased is probablized when we consider the defence theory that these two accused rushed to the scene of occurrence no sooner they heard the cries coming from the room of the accused Gandhi Ram. Only a solitary weapon of offence, i.e. a blood-stained Kassi was recovered by the Investigating Officer at the instance of Gandhi Ram. The injuries by which Kanhaiya Lal expired were probably caused by his having been thrown on the floor. All the injuries of Smt. Rajbala were sharp in nature and thus, apparently, the accused Gandhi Ram appears to be solely responsible for causing these injuries. Law is well-settled that the accused are only required to prove their defence by preponderance of probability. Considering the over all circumstances discussed above, we feel that the pertinent defence theory that the three accused Chandrawali, Sheokaran and Sahab Ram were living separately from the accused Gandhi Ram has been reasonably probablized. Thus, the reverse burden of proof applied by virtue of Section 106 cannot be operated against any accused other than Gandhi Ram. For reaching to this conclusion, we are persuaded by the circumstances that the prosecution is guilty of withholding material witnesses, viz. Onar Singh; the FIR was lodged after significant delay and the evidence of sole eye-witness Dayaram is not of sterling worth. 27. From perusal of the Roznamcha entries reproduced infra, it is clear that when Onar Singh, SHO, reached the place of occurrence, he did not see any of the accused persons at the spot. As per the evidence of the Circle Officer Vipin Sharma (PW-10), he arrested the accused Gandhi Ram vide arrest memo Ex.P/41 on 12.09.2008 at 5.30 p.m. The accused initially gave an information that he could get recovered the Kassi with which he, his father and brother killed his wife Rajbala and his son Kanhaiya and so also the dowry articles. However, Gandhi Ram allegedly refused to sign this memo, which was proved as Ex.P/42. However, Gandhi Ram allegedly refused to sign this memo, which was proved as Ex.P/42. Thereafter, Gandhi Ram gave yet another information to the Circle Officer vide memo Ex.P/43 dated 14.09.2008, in furtherance whereof, the Kassi, blood-stained clothes etc. were recovered by the Investigating Officer which were concealed under a cot lying in the same room, where the incident took place. Apparently, this recovery is false and fabricated because the place of occurrence must have been searched on numerous occasions before 14.09.2008 and thus, there is no possibility that the Investigating Officer would have missed these articles during the earlier search. The Investigating Officer, further claimed that Sheokaran and Sahab Ram also got their blood-stained clothes etc. recovered after they were arrested. However, for the same reasons, which we have assigned above, we feel that the recoveries of the blood-stained clothes become doubtful. From the facts noted above, it is clear that the prosecution has come out with a clear proposition that a single Kassi was used to kill Smt. Rajbala, whereas the child Kanhaiya was thrown to ground and received the fatal injuries in this manner. The presence of the husband, wife and child, i.e. Gandhi Ram, Rajbala and Kanhaiya, in the same house can be presumed and rather Gandhi Ram has admitted this fact in this statement under Section 313 Cr.PC. Thus, the burden to establish as to how his wife and child received the fatal sharp weapon injuries in the closed precincts of his residence would clearly shift on to the said accused by virtue of Section 106 of the Evidence Act. From a perusal of the photographs taken by the Investigating Officer after the incident, it is clear that no agricultural implements are visible inside the room. In this background, the explanation offered by Gandhi Ram in his defence that the two deceased received injuries by falling on agricultural implements lying in the room is falsified. As Gandhi Ram, being the husband and father respectively of Smt. Rajbala and Kanhaiya, could not offer any explanation whatsoever for the large number of fatal injuries caused to the two deceased by sharp and blunt weapons, the presumption of guilt deserves to be drawn against him by virtue of Section 106 of the Evidence Act. 28. As a consequence of the above discussion, the appeal is partly allowed. 28. As a consequence of the above discussion, the appeal is partly allowed. The conviction of the appellants Smt. Chandrawali, Sheokaran and Sahab Ram as recorded by learned Additional Sessions Judge No. 2, Hanumangarh vide the impugned judgment dated 02.09.2013 passed in Sessions Case No. 38/2012 is hereby quashed and set aside. They are acquitted of the charges under Sections 302/34, 302/120-B and 498-A of the IPC. However, the conviction of the appellant Gandhi Ram cannot be called into question and the impugned judgment is affirmed to his extent. Appellants Smt. Chandrawali and Sheokaran are on bail. Their bail bonds shall stand discharged. Appellant Sahab Ram, who is in prison, shall be released forthwith, if not wanted in any other case. Appellant Gandhi Ram @ Mahendra is in jail. He shall serve the remaining sentence awarded to him. 29. However, keeping in view the provisions of Section 437A Cr.P.C. the accused appellants Smt. Chandrawali, Sheokaran and Sahab Ram are directed to furnish a personal bond in the sum of Rs. 15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a special leave petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.