Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 1869 (RAJ)

Danmal Bheel v. State of Rajasthan

2019-07-02

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : Sabina, J. 1. Appellants have filed this appeal challenging their conviction and sentence under Section 302 read with Section 34 Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') as ordered by the Trial Court vide judgment/order dated 23.02.2012. 2. Appellants were sentenced to undergo life imprisonment under Section 302 read with Section 34 I.P.C. and were sentenced to pay a fine of Rupees five thousand and were ordered to undergo one year rigorous imprisonment in case of default of payment of fine. 3. Prosecution story in brief is that on 5.9.2011 complainant Radheshyam received information from his nephew Vishnu at about 7.00 a.m. that his (Vishnu) father has been murdered by his (Vishnu) mother Sardar Bai and Danmal. Complainant went to the house of his brother Ramchander and found that dead body of his brother was lying on a cot. As per the complainant, Ramchander had been murdered by strangulation or by administering him some poisonous substance. Appellant Sardar Bai had illicit relations with appellant Danmal and due to this reason both of them had committed murder of Ramchander. 4. On the basis of the statement of the complainant, formal FIR No. 336 dated 5.9.2011 was registered at Police Station Akalera, District Jhalawar under Section 302/34 I.P.C. 5. After completion of investigation and necessary formalities, challan was presented against the appellants. 6. Charge was framed against the appellants under Section 302 read with Sec. 34 IPC by the Trial Court. Appellants did not plead guilty and claimed trial. 7. In order to prove its case, prosecution examined twenty six witnesses. Appellant Danmal when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), prayed that he was innocent and has been falsely involved in this case. He did not have any illicit relations with Sardar Bai. Appellant Sardar Bai when examined under Section 313 Cr.P.C., pleaded that her husband was a liquor addict and had died on account of consumption of excessive liquor. She was innocent and had been falsely involved in this case. 8. Appellants did not examine any witnesses in their defence. Trial Court vide judgment/order dated 23.02.2012 ordered the conviction and sentence of the appellants under Section 302 read with Section 34 I.P.C. Hence, the present appeal by the appellants. 9. Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove its case. 8. Appellants did not examine any witnesses in their defence. Trial Court vide judgment/order dated 23.02.2012 ordered the conviction and sentence of the appellants under Section 302 read with Section 34 I.P.C. Hence, the present appeal by the appellants. 9. Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove its case. Independent witnesses had not supported the prosecution case, during trial. Even from the statement of star witness of the prosecution, PW-13 Vishnu it was not established that any poisonous substance had been administered by the appellants to the deceased. 10. Learned state counsel has opposed the appeal and has submitted that the prosecution had been successful in establishing its case. 11. Present case relates to murder of Ramchander. Appellant Sardar Bai is the wife of deceased Ramchander. As per the prosecution story, appellants were having illicit relations and due to this reason, they had committed murder of Ramchander. 12. Let us examine the evidence on record to come to a conclusion as to whether prosecution had been successful in establishing its case. As per the prosecution version, deceased Ramchander had been murdered either by strangulation or on account of administration of some poisonous substance. PW-9 Dr. Nitendra Sharma has deposed that there were no marks of strangulation on the neck of the dead body. As per the postmortem report Exhibit P-13, the cause of death of the deceased was due to cardio respiratory failure. Final opinion was reserved for post receipt of the report of the Forensic Science Laboratory. As per Exhibit P-31, report of the Forensic Science Laboratory Organo Phosphorus Insecticide was found present in the viscera of the deceased. Thus, the version of the prosecution that the deceased might have been murdered by strangulation is not corroborated by medical evidence. Thus, the next question that requires to be examined is as to whether the deceased was administered Organo Phosphorus Insecticide by the accused. The star witness of the prosecution in this regard is PW-13 Vishnu, son of the deceased. PW-13 Vishnu deposed that he was residing with his parents and sister. Appellant Danmal used to visit their house. His father used to tell appellant Danmal not to visit their house. Due to this reason, there had been some altercation between them on 3-4 occasions. On the day of occurrence, he was present in his house. PW-13 Vishnu deposed that he was residing with his parents and sister. Appellant Danmal used to visit their house. His father used to tell appellant Danmal not to visit their house. Due to this reason, there had been some altercation between them on 3-4 occasions. On the day of occurrence, he was present in his house. His mother Sardar Bai, father Ramchander and sister Pinki were present in the house. Appellant Danmal was also present in their house. They had all slept at 9.00 p.m. When he got up in the morning, he saw that his father was lying dead on the cot. At that time appellant Danmal, his mother and Pinki were at home. Appellant Danmal lifted the bed sheet from his father and said that his father had died. Appellant Danmal told his mother that, in case, somebody inquired, she should tell them that her husband had died due to consumption of some poisonous tablets. Her mother did not respond to this and appellant Danmal took out Rupees two hundred from the purse of his mother. He informed his uncle Radheshyam on phone that his father had died. Appellant Danmal used to visit their house in the absence of his father. When appellant Danmal used to visit their house, he used to push him as well as his sister Pinki out and appellant Danmal and his mother used to go inside the room. In his cross-examination, this witness deposed that on the day of incident his mother had gone to a fair at about 9.00 a.m. In the evening his father had got a quarter of a countrymade liquor after paying Rupees thirty and had consumed the same. He along with Pinki had slept on the cot with his father. He had not seen the appellants giving beatings to his father or quarreling with him. He had got up in the morning at about 6/7 a.m. His mother had returned in the evening at about 8.00 p.m. On the day of occurrence, his father had not told appellant Danmal, in his presence, that he should not visit their house. In the morning, on the day of the death of his father, first of all his maternal aunt Badam Bai had come to their house and thereafter, his uncle Radheshyam had arrived in their house. In the morning, on the day of the death of his father, first of all his maternal aunt Badam Bai had come to their house and thereafter, his uncle Radheshyam had arrived in their house. He was presently residing with his uncle Radheshyam and had been explained by Radheshyam as well as his counsel with regard to the statement liable to be given by him. Thus, from the statement of PW-13, it transpires that on the day of occurrence deceased had consumed a quarter of country made liquor and had slept along with his two children. PW-13 had not witnessed any quarrel between the appellants and the deceased. From the statement of PW-13, it does not transpire that the insecticide found present in the viscera of the deceased had been administered to him by the appellants. So far as PW-10 Radheshyam is concerned, his statement with regard to the occurrence can be said to be hearsay as he had deposed whatever had been narrated to him by PW-13 Vishnu. Hence, the statement of PW-13 fails to advance the prosecution story. PW-10 Radheshyam has deposed that when he had seen the dead body of his brother he had found marks on his neck. However, this part of the statement of PW-10 is belied by the postmortem report Exhibit-13. As per the postmortem report Exhibit P-13 there was no external injury on the person of the deceased. PW-10 has stated in his cross-examination that Vishnu had not seen appellant Danmal giving beatings to Ramchander. Hence, statement of PW-10 also fails to advance the prosecution story. PW-14 Badam Bai is the sister of appellant Sardar Bai and has deposed that appellant Danmal used to visit the house of her sister Sardar Bai. She also stated that Ramchander used to call appellant Danmal to his house and used to offer him liquor. She did not know if there was any dispute between appellant Danmal and Ramchander. The said witness was declared hostile. In her cross-examination she deposed that Vishnu had told her that his father had died on account of consumption of some poisonous tablets. Thus, the statement of PW-14 also fails to advance the prosecution story. Other independent witnesses PW-5 Raju @ Rahul, PW-7 Surajmal, PW-15 Lalta Bai, PW-18 Rambilas, PW-22 Mohan Lal, PW-23 Shrilal have not supported the prosecution case, during trial. 13. Thus, the statement of PW-14 also fails to advance the prosecution story. Other independent witnesses PW-5 Raju @ Rahul, PW-7 Surajmal, PW-15 Lalta Bai, PW-18 Rambilas, PW-22 Mohan Lal, PW-23 Shrilal have not supported the prosecution case, during trial. 13. Although, as per the report of the Forensic Science Laboratory, Organo Phosphorus Insecticide was found present in the visceras of the deceased, but there is no material on record to establish that the said insecticide had been administered by the appellants to the deceased. 14. It is a settled preposition of law that the prosecution is required to prove its case beyond the shadow of the reasonable doubt against an accused. An accused is presumed to be innocent till proved guilty. However, in the present case, prosecution has failed to establish its case beyond the shadow of reasonable doubt against the appellants. Hence, appellants are liable to be acquitted of the charge framed against them by giving them benefit of doubt. 15. Accordingly, this appeal is allowed. Impugned Judgment/order dated 23.02.2012 passed by the Trial Court are set aside. Appellants are acquitted of the charge framed against them. Appellant Danmal who is in custody, be set at liberty forthwith, if not required in any other case. 16. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants namely Danmal S/o. Late Shri Ramesh Chand & Sardar Bai W/o Ramchander are directed to furnish a personal bond in the sum of Rs. 25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.