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2019 DIGILAW 1915 (RAJ)

Puniya v. State of Rajasthan

2019-07-08

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : Abhay Chaturvedi, J. 1. The instant criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellants Puniya @ Poona and Daranga being aggrieved by the judgment dated 03.10.2015 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 78/2012, whereby they have been convicted and sentenced as under:- Offence for which convicted Sentence awarded Section 302/34 IPC Imprisonment for life alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo two years' Rigorous Imprisonment. Section 201 IPC Rigorous Imprisonment of 03 years' alongwith fine of Rs. 5,000/- and in default of payment of fine, further to undergo one year's Rigorous Imprisonment. 2. The substantive sentences were ordered to run concurrently. 3. Brief facts giving rise to the present appeal are that on 03.06.2012 at about 2:30 PM, Shailendra Singh (PW-8), SHO Police Station, Dhariyawad, District Pratapgrah received an information from Village Rati Kankar to the effect that a person had died by drowning and the dead body was lying in the well, upon which, he, along with other police personnel proceeded to the agricultural field and the well of the deceased Shanti Lal situated at village Rati Kankar, where, people present at spot told him that the dead body of Shanti Lal was lying in the well. He tried to get the dead body out of the well, but could not succeed on that day. On the next morning, the dead body was taken out of the well, which was identified to be that of Shanti Lal by Smt. Gangali (PW-1) and Onkar (PW-5), who are the wife and the brother of the deceased respectively. Thereafter, it was noticed that a plastic bag containing a heavy stone was tied to the body of the deceased with the help of a dhoti. On the same day i.e. on 04.06.2012, Smt. Gangali (PW-1) submitted a written report (Ex. P/1) to the SHO, Dhariyawad (PW-8) which was registered as FIR No. 113/2012 (Ex. P/12) for the offences under Sections 302/34 and 201 IPC at Police Station, Dhariyawad, District Pratapgarh. It was alleged by her in the written report that her father-in-law had two wives. Shri Onkar (PW-5) and her husband Shanti Lal (deceased) were born from the first wife and the accused Daranga and Puniya were born from the second wife. P/12) for the offences under Sections 302/34 and 201 IPC at Police Station, Dhariyawad, District Pratapgarh. It was alleged by her in the written report that her father-in-law had two wives. Shri Onkar (PW-5) and her husband Shanti Lal (deceased) were born from the first wife and the accused Daranga and Puniya were born from the second wife. There was a dispute between them over the partition of a Talai land. On 02.06.2012 at about 7:00 PM accused-appellant Daranga and Puniya had assaulted her husband Shanti Lal. Thereafter, the accused-appellants brought the deceased Shanti Lal to her house and were beating him incessantly. She and Shanti Lal requested them that he may be left alone but the assailants took away Shanti Lal forcibly, stating that they were taking him to Talai and they will have a discussion with him there. She followed them to their house at Talai and saw that her husband was lying on a cot and was asking for water. She requested accused-appellant Puniya to release her husband, but she was threatened and was sent back to her home. She remained at her house during the whole night, but her husband did not return. In the next morning, she sent her daughter Meera (PW-6) to look for her husband, but the accused-appellant Puniya sent her back saying that her father had already left in the night. Thereafter, she searched for her husband but could not find him. She alleged that Puniya had told Devilal that Shanti Lal had fallen in the well. On 03.06.2012, her husband Shanti Lal's body was found in the well, having injuries on his forehead and a plastic bag having a heavy stone was tied with his chest with the help of dhoti. It was also alleged that the accused-appellants had assaulted her husband and after killing him, they had thrown his dead body into the well after tying a heavy stone in a plastic bag. She further alleged that her father-in-law Partha, mother-in-law Smt. Nauchaki and Smt. Hummati w/o Puniya were also present at the house at Talai but did not save her husband deceased Shanti Lal. 4. After registration of the FIR, the investigation was commenced by the SHO Shailendra Singh (PW-8). The inquest report (Ex. P/2) and site plan (Ex. P/3) were prepared. She further alleged that her father-in-law Partha, mother-in-law Smt. Nauchaki and Smt. Hummati w/o Puniya were also present at the house at Talai but did not save her husband deceased Shanti Lal. 4. After registration of the FIR, the investigation was commenced by the SHO Shailendra Singh (PW-8). The inquest report (Ex. P/2) and site plan (Ex. P/3) were prepared. The postmortem of the body of the deceased was conducted at PHC Dhariyawad from where a PMR (Ex. P/11) dated 04.06.2012 was received. The accused-appellants were arrested and after the usual formal investigation, the police submitted a charge-sheet against the accused-appellants for the offences under Sections 302 and 201 read with section 34 IPC before the Magistrate concerned. Since the offence under the 302 IPC being triable by Court of Sessions, the case was committed to the Court of Sessions Judge for trial. 5. Learned trial Court framed, read over and explained the charges for the offences under Section 302 and 201 read with Section 34 IPC to the accused-appellants, who pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses and exhibited 23 documents to prove its case. 6. Upon being confronted with the circumstances appearing against them in the prosecution evidence, the accused in their statement under Section 313 Cr.P.C. denied the same and claimed to be innocent. However, no evidence was led in defence. 7. After hearing and appreciating the submissions advanced by the defence and the prosecution and appreciating and evaluating the evidence available on record, the learned trial Court, proceeded to convict and sentence the appellants as above. 8. Learned counsel for the appellants has submitted that there was no eye witness to the occurrence and the prosecution case is entirely based on circumstantial evidence, but the complete chain of circumstances to connect the accused-appellants with the alleged offence is missing. (PW-9) Partha, who is the father of the deceased, has not supported the prosecution story. The learned trial Court has recorded the conviction only on the basis of statements of Smt. Gangali (PW-1) and Meera (PW-6), who are the witnesses of the last seen and also of the alleged scuffle between the deceased and the accused-appellants. These two witnesses are not worthy of credence as their statements are full of exaggerations and contradictions. The story put forth by these witnesses is most unnatural and cannot be believed at all. These two witnesses are not worthy of credence as their statements are full of exaggerations and contradictions. The story put forth by these witnesses is most unnatural and cannot be believed at all. The motive behind the offences is alleged to be the dispute between the appellants and the deceased over agriculture land, but (PW-9) Partha, who is the father of the deceased, has clearly stated that he had already partitioned the land. Thus, it can safely be assumed that there was no dispute between them regarding the land. 9. It is also stated on behalf of the learned counsel for the appellant that there is no corroboration of the statement of any of the witnesses by any independent evidence. Their testimony cannot be relied upon to record conviction of the appellants. It was also urged that Meera (PW-6), the daughter of the deceased, is a child witness being aged 10 years and her testimony could not be made the basis of conviction as there is every possibility of tutoring of such a witness. On these grounds, learned counsel for the appellants implored the Court that the appellants herein are entitled to be acquitted of the charges and the impugned judgment deserves to be set aside. 10. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellants and contended that the impugned judgment passed by the learned trial Court is based on a just and proper appreciation of the facts and evidence available on record and thus, there is no ground to interfere with the findings of the trial Court. Hence, the appeal deserves to be dismissed. 11. We have given our thoughtful consideration to the submissions advanced at Bar; gone through the record and minutely re-appreciated the evidence available on record. 12. It is apparent from perusal of the record that there is no eye witness to the offence and the prosecution case hinges purely on circumstantial evidence. 13. The prosecution has come forward with a case that on 03.06.2012, Shailendra Singh (PW-8) reached at the well of Shanti Lal on receiving an information that a person had drowned in the well. On that day, the dead body could not be taken out from the well. However, on the next day i.e. 04.06.2012 in the morning, the dead body was taken out which was identified as that of deceased Shanti Lal. 14. On that day, the dead body could not be taken out from the well. However, on the next day i.e. 04.06.2012 in the morning, the dead body was taken out which was identified as that of deceased Shanti Lal. 14. PW-1 Smt. Gangli submitted a written report (Ex. P/1) immediately after the recovery of dead body of her husband Shanti Lal from the well, alleging therein that her husband had been assaulted by the accused - appellants on account of the dispute between them regarding the agricultural land. During the trial, PW-1 Smt. Gangli was examined. She reiterated the facts already mentioned in the FIR itself. She further stated that the accused - appellants gave a beating to her deceased husband Shanti Lal at village Talaya. She also stated that at village Talai, she saw that her husband was lying on a cot and was asking them for water. The accused - appellants forced her to go back to her house. She also stated that on the next morning, she sent her daughter Meera (PW-6), who informed after returning from the village Talai that the accused - appellants informed that her father had already left from that place in the previous night itself. 15. The prosecution examined Ms. Meera (PW-6), who also corroborated the testimony of PW-1 Smt. Gangli stating that the accused - appellants gave a beating to her father at the agriculture field. Thereafter, they took her father to the village. On the next day morning, she went to the village Talai in search of her father and asked the accused - appellants about her father but they informed her that her father had already left from there in the previous night itself. 16. From the statements of the PW-1 Smt. Gangli and PW-6 Meera, it is clearly borne out that on 02.06.2012, the deceased was beaten by the accused-appellants at his own field and thereafter at village Talai. Thus, the accused - appellants were last seen with the deceased on 02.06.2012. On 03.06.2012, at 2:30 pm., PW-8 Shailendra Singh received information regarding the drowning of a person in the well. The dead body of the deceased Shanti Lal might have been thrown into the well much before PW-8 Shailendra Singh received the said information and that too may be some time in the morning of 03.06.2012 or even in the night of 02.06.2012 as PW-7 Dr. The dead body of the deceased Shanti Lal might have been thrown into the well much before PW-8 Shailendra Singh received the said information and that too may be some time in the morning of 03.06.2012 or even in the night of 02.06.2012 as PW-7 Dr. Mahesh Somani has stated the time since death was 36 to 48 hours. The time gap between the deceased being in the company of the accused-appellants and PW-8 Shailender Singh receiving information about the drowning of a person in the well is not wider and significant so as to disbelieve the evidence of last seen put forward by the prosecution. It has not come on record that the deceased was seen alive any time after 02.06.2019. 17. A perusal of the record shows that when the deceased, Shanti Lal was taken out from the well, he was having injuries on his forehead and swelling on the left side around the eyes. Dr. Mahesh Somani (PW-7) has stated that the injuries found on the body of the deceased were antemortem and sufficient to cause death. The details of the injuries are set out in the PMR (Ex. P/11) He also stated that injuries suffered by the deceased could be caused by a blunt weapon. He further stated that head injury led to cardio respiratory failure causing death of the deceased. It is also borne out that a heavy stone packed in a plastic bag was tied to the body of the deceased. During investigation, the stone was seized vide Seizure Memo (Ex. P/4) which shows that the size of the Stone was 19' x 14' inches and weight was 30 kgs. As such, the statements of PW-1 Smt. Gangli and PW-6 Meera are duly corroborated by the medical evidence also. The condition of the dead body when it was taken out from the well with a heavy stone tied to it clearly goes further to suggest that person is who were on inimical terms with the deceased has assaulted the deceased, causing his death and thereafter his dead body was thrown into the well after tying a heavy stone to it so as to ensure that the body may not float and come to surface and the persons responsible for it may escape the wrath of law. 18. 18. So far statement of PW-6 Meera is concerned, the counsel for the appellants challenged her statement on the ground of her being a child witness. It is true that she is a child of 10 years of age but her statement cannot be ignored altogether on the ground of her age. While considering her testimony, her understanding has to be adjudged. The trial court has put certain questions to test her maturity of being able to understand the righteousness and intricacies of the situation at hand. The statement of PW-6 does not show anything which could persuade the Court to hold that she does not understand the circumstances or that she was tutored by any one. Now a days, with the development of social environment, a child of 10 years of age has sufficient understanding so as to be a competent witness of sterling worth. 19. So far as the motive of the accused-appellants for committing the offence is concerned, PW-1 Gangli has specifically stated that her father-in-law was having agricultural land at Aamo and Taliya and he wanted to give these lands to his two sons only by excluding her husband. PW-9 Partha and the accused - appellants did not propose to give any share in the property to the deceased, that is why there was a dispute between the deceased Shanti Lal on the one hand and his brothers and his father on the other. PW-9-Partha, the father of the accused-appellants and the deceased has stated that he had already made a partition of the property but his statement appears to be unbelievable for the simple reason that he has been declared hostile by the prosecution as he did not support the prosecution story. Secondly, PW-1 has stated that there was a dispute between the accused - appellants and the deceased regarding the land. Therefore, the statement of PW-9 to the effect that partition had already taken place between the parties is not of much help to the accused - appellants. Secondly, PW-1 has stated that there was a dispute between the accused - appellants and the deceased regarding the land. Therefore, the statement of PW-9 to the effect that partition had already taken place between the parties is not of much help to the accused - appellants. Though motive to commit murder of the deceased Shanti Lal has been proved by the evidence adduced by the prosecution but even assuming for the sake of arguments that the land dispute had already been settled, the settled position of law is that in every case the prosecution is not required to prove motive as it lurks in the mind of the accused, the evidence of which can seldom be brought on record. Here, in this case, in the light of direct evidence of PW-1 and PW-6, the accused -appellants are liable to be held guilty even in the absence of motive. 20. In view of the above, we find no reasons so as to interfere with the finding of the trial court convicting the accused -appellants for the offences under Sections 302/34 and 201 IPC. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The impugned judgment dated 03.10.2015 passed by the learned Sessions Judge, Pratapgarh is upheld. 21. The record of the trial court be sent back forthwith.