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2019 DIGILAW 1946 (RAJ)

Kailash @ Ratan v. State of Rajasthan

2019-07-11

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Abhay Chaturvedi, J. - The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 26.05.2014 passed by the learned Additional Sessions Judge, Shahpura, district Bhilwara in Sessions Case No. 09/2013 whereby, the learned trial Judge convicted him for the offence under Section 302 IPC and sentenced him for life imprisonment with fine of Rs.2,000/- and in default of payment of fine to further undergo 06 months' additional Rigorous Imprisonment. 2. Brief facts giving rise to this appeal are that on 01.07.2013, one Badri Bheel (PW-14) submitted a written report (Ex.P/16) to SHO, Police Station Shahpura alleging inter alia that his sister Sita got married to Kailash about eight years ago. Out of this wedlock, three children were born; one daughter and two sons. Kailash, husband of Smt. Sita used to beat her sister for the last one year and that is why, his sister Smt. Sita was living at her parental house for the last one year. During this period also, whenever, Kailash came to Pratappura, he used to beat Smt. Sita but after advising him thoroughly, he would be sent back. About eight days ago, Magna Bheel, father-in-law of her sister, took Smt. Sita with him to her matrimonial home at Amrapura Sevani. In the morning of 01.07.2013, a telephone call was received from Amarpura Sevni informing him that in the previous night Kailash gave beating to her sister Smt. Sita. On this information, he along with Gopal and Ramswaroop proceeded to village Sevani where he saw that his sister Smt. Sita was having injuries on her person and blood was oozing out and she was lying dead. Kailash @ Ratan assaulted her sister and as a result of injuries, she died. 3. On the basis of this report a formal FIR No.139/2013 (Ex.P/17) was registered at Police Station Shahpura Baitu for the offence under Section 302 IPC and the investigation commenced. During the investigation, the statements of witnesses were recorded. Blood smeared soil and control soil were seized vide Ex.P/4, Site Plan (Ex.P/25) was prepared, clothes of the deceased were seized vide Ex.P.26. The accused - appellant was arrested. His clothes were seized vide Ex.P/9. In pursuance of the information under Section 27 of the Evidence Act (Ex.P/26), an iron 'danta' was recovered vide Ex.P/8. Blood smeared soil and control soil were seized vide Ex.P/4, Site Plan (Ex.P/25) was prepared, clothes of the deceased were seized vide Ex.P.26. The accused - appellant was arrested. His clothes were seized vide Ex.P/9. In pursuance of the information under Section 27 of the Evidence Act (Ex.P/26), an iron 'danta' was recovered vide Ex.P/8. Postmortem was conducted by the Medical Board constituted at Satellite Hospital and it was opined by the medical Board that the cause of death of deceased Smt. Sita was Coma due to head injury which was antemortem in nature. 4. After thorough investigation, police submitted a charge-sheet against the accused-appellant for the offence under Section 302 IPC before the Magistrate concerned. Since the offence under Section 302 IPC was triable by the Court of Sessions, the case was committed to the Court of Sessions Judge Bhilwara for trial. The learned Sessions Judge transferred the case to learned Additional Sessions Judge, Shahpura, district Bhilwara. 5. Learned trial court framed, read over and explained the charges for the offence under Section 302 IPC to the accusedappellant who pleaded not guilty and sought trial. The prosecution examined as many as 15 witnesses and 28 documents in support of its case. 6. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence. He 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 after appreciating and evaluating the evidence available on record, the learned trial Court, proceeded to convict and sentence the appellant as above. 8. Learned counsel for the appellant has submitted that the judgment passed by the trial Court is based on no substantive evidence. All the material witnesses have been declared hostile and they have not supported the prosecution story. It was further urged that Prahlad (PW-13), who is son of the deceased Smt. Sita and the accused Kailash is only 09 years of age, has given his statement under the influence of his uncle (Mama). His statement is not worthy of credence. It was also submitted that there is no evidence on record so as to justify the conviction of the accusedappellant for the offence under Section 302 IPC. His statement is not worthy of credence. It was also submitted that there is no evidence on record so as to justify the conviction of the accusedappellant for the offence under Section 302 IPC. On these grounds, learned counsel for the appellant implored the Court that the appellant herein is entitled to be acquitted and the impugned judgment deserves to be set aside. 9. Learned Public Prosecutor, on the other hand, vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the impugned judgment passed by the learned Court is based on a just and proper appreciation of the facts and evidence available on record and there is no ground to interfere with the findings of the trial Court. Hence, the appeal deserves to be dismissed. 10. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. 11. A perusal of the evidence adduced by the prosecution goes to show that it is not in dispute that the deceased was married to the accused-appellant 08 years ago and two sons and a daughter were born out of this wedlock. The prosecution has come with the case that the accused-appellant used to torture and beat the deceased for the last one year. Therefore, the deceased was living at her parental house at village Pratappura for a period of one year. Although, PW-4-Magna, father-in-law of the deceased has not admitted that he brought the deceased at her matrimonial home at village Amrapura Sevani and rather states that the deceased came to her matrimonial house 7-8 days before the incident. PW-1 Kalyan, PW-2 Balu, neighbors and PW-14-Badri and PW-15-Gopal, the brothers of the deceased have stated that father-in-law of the deceased, PW-4-Magna brought her in the matrimonial house at village Sevani. Anyway, the fact that the deceased came back to her matrimonial house at village Sevani 7- 8 days before the incident remains established. 12. The prosecution produced PW-1 Kaliyan, PW-2 Balu, PW-3 Hazari, PW-4 Magna, PW-5 Panna Lal and PW-13 Prahlad to show that the relations of the accused-appellant and the deceased were not cordial and the accused-appellant used to beat the deceased and in the intervening night of 31.06.2013 and 01.07.2013, the accused-appellant also gave a beating to the deceased by the iron 'danta'. During trial, PW-1 - Kalyan, PW-2 - Balu, PW-3 - Hazari, PW-4 - Magna and PW-5 Panna Lal have not supported the prosecution case and PW-1, PW-3 and PW-5 have been declared hostile by the prosecution. PW-1 Kalyan, though has been declared hostile by the prosecution but he has admitted that in the midnight, parents of the accused-appellant came out of their house saying that the accused-appellant had beaten his wife. In cross-examination, he stated that the accused-appellant ran away to the jungle after inflicting injuries to his wife. PW-1 in crossexamination on behalf of the accused-appellant admitted that he himself had not seen the accused-appellant beating his wife. 13. PW-2-Balu, in examination-in-chief stated that in the night about 2-3 am, PW-4-Magna came out of his house saying that the accused-Kailash had killed his wife. He did not enter the house immediately, but when police reached, he entered the house where he saw that the deceased Smt. Sita was lying on a cot having injuries on her head. Her clothes were stained in blood and a blood stained "danta" was also lying there. Accused-Kailash was not there and had ran away from there. In cross-examination, he stated that he saw that the accused-appellant was at his residence at 5:00 pm in the evening on the day of the incident. 14. PW-3-Hazari was also declared hostile but has admitted that PW-4-Magna stated to him in the night that the accused had beaten his wife the deceased-Smt. Sita. 15. PW-4-Magna, the father of the accused-appellant has not supported the prosecution case but stated that the accused - Kailash and the deceased used to live together cordially but after the death of his son, there were frequent exchange of abuses between them. Thereafter, the deceased went away to her parental house from where she came 7-8 days before the occurrence. 16. PW-13 Prahlad, minor son of the deceased and the accusedappellant, clearly stated that he was sleeping on a cot near the cot of his mother. He woke up after hearing the abuses being hurled by his father. The accused-appellant inflicted 'danta' blow on the forehead of his mother, the deceased. The accused-appellant also threatened him and his brother and sister to kill them. They ran away from there. This witness was cross-examined by the counsel for the accused but his statement was not shaken in any manner. The accused-appellant inflicted 'danta' blow on the forehead of his mother, the deceased. The accused-appellant also threatened him and his brother and sister to kill them. They ran away from there. This witness was cross-examined by the counsel for the accused but his statement was not shaken in any manner. His testimony was challenged by the learned defence counsel for the accused-appellant on the ground of he being a child and as such, possibility of he been deposing against the accused - appellant under the influence of, and tutoring by, his maternal uncle was apprehended. 17. So far as the testimony of PW-13 Prahlad, a child witness, is concerned, the testimony of a witness cannot be rejected merely on the ground of age. If, on perusal of the statement of a child witness, the Court finds, his testimony trustworthy and reliable, the same can be accepted for convicting the accused - appellant without any corroboration by independent evidence. Admittedly, PW-13 Prahlad is son of the accused-appellant and the deceased, so his presence at the place of occurrence is natural at the time of the incident. The accused-appellant has not suggested any reason as to why he would implicate his father falsely in the case of murder of his mother. Merely because, this witness was living with his maternal uncle after the occurrence, it cannot be inferred that he was under his influence and was tutored. 18. PW-8-Dr. Heera Pal, who was one of the members of the Medical Board which conducted the postmortem examination of the deceased on 01.07.2013, has stated that he found lacerated wound on the right side of the frontal region of the size 7x3x1 cm. He also found abrasions and bruises on the right shoulder and around the right eye of the deceased. The medical board opined that the cause of death was Coma due to head injury. Therefore, the statement of PW-13 Prahlad is corroborated by the medical evidence as deposed by PW-8 Dr. Heera Pal. 19. During investigation, the accused-appellant was arrested and on his information under Section 27 of the Evidence Act (Ex.P/26), an iron 'danta' was recovered vide seizure memo Ex.P/8. The clothes i.e. odhni and blouse of the deceased were seized vide seizure memo Ex.P/26. The clothes of the accused i.e. Dhoti and Kurta and control soil was seized vide Ex.P/4. 19. During investigation, the accused-appellant was arrested and on his information under Section 27 of the Evidence Act (Ex.P/26), an iron 'danta' was recovered vide seizure memo Ex.P/8. The clothes i.e. odhni and blouse of the deceased were seized vide seizure memo Ex.P/26. The clothes of the accused i.e. Dhoti and Kurta and control soil was seized vide Ex.P/4. All these articles were sent for chemical examination by the FSL. 20. In order to prove the fact of receiving the seized/recovered articles in an intact condition by the FSL, the prosecution examined PW-10- Ghisu Singh, PW-9-Usman Khan and PW-12- Kailash Chand. On a perusal of the statement of PW-10 Ghisu Singh who was posted as Maalkhana Incharge at Police-Station Shahpura and the relevant Maalkhana Entry in Ex.P/5A, it becomes clear that on 01.07.2013, SHO Pannalal (PW-11) deposited 'A', 'B', 'C', 'D' and 'E' packets in a sealed condition and these sealed packets were handed over by PW-10 Ghisu to PW-9 Usman Khan. PW-9 Usman Khan stated that on 24.07.2013, he took the sealed sample from PW-10 Ghisu Singh and after getting the forwarding letter prepared from the office of Superintendent of Police, deposited all the five packets to the FSL Udaipur on 25.07.2013 in a sealed condition. PW-12 Kailash Chandra has stated that on 24.07.2013, PW-9 Usman Khan brought five packets 'A', 'B', 'C', 'D' and 'E' in sealed condition and after preparing the forwarding letter in the name of FSL Udaipur, he handed over all the packets in sealed condition to PW-9 Usman Khan. Hence, the prosecution has proved by link evidence that all the articles A, B, C, D and E were in intact position from the time of their seizure/recovery up to the time of receipt of the same by the FSL vide receipt Ex.P/14. The FSL, after examination, has given its report (Ex.P/28), which shows that blood smeared soil, odhni, blouse of the deceased, iron 'danta' and clothes of the accused i.e. dhoti and kurta were having blood of "A" group. Hence, the clothes of the deceased and the accused-appellant and the weapon of the offence i.e. iron 'danta' were stained with blood of "A" group. Therefore, the FSL report also corroborates the prosecution case that the accused-appellant inflicted 'danta' blow on the forehead of the deceased resulting in the oozing of blood from the same and thus causing her death. 21. Therefore, the FSL report also corroborates the prosecution case that the accused-appellant inflicted 'danta' blow on the forehead of the deceased resulting in the oozing of blood from the same and thus causing her death. 21. Therefore, the statement of PW-13 Prahlad is supported by medical evidence and FSL Report (Ex.P/28) as well. His statement also finds support from the statements of PW-1 Kalyan, PW-2 Balu, PW-3 Hazari and PW-4 Magna to the extent of attending circumstances at the time of incident. As such, we are of the view that PW-13 Prahlad, is a trustworthy and a reliable witness, whose testimony can be accepted for convicting the accused - appellant for committing murder of the deceased. Hence, the charge framed against the accused - appellant is duly proved by the prosecution evidence. 22. In view of the above, we find no reasons whatsoever so as to interfere with the finding of the trial court convicting the accused - appellant for the offence under Section 302 IPC. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The impugned judgment dated 26.05.2014 passed by the learned Additional Sessions Judge, Shahpura, district Bhilwara is upheld. 23. The record of the trial court be sent back forthwith.