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2019 DIGILAW 1989 (RAJ)

Radhey Shyam v. State of Rajasthan

2019-07-17

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT 1. The appellant Radhey Shyam has been convicted and sentenced as below vide judgment dated 24.01.2012, passed by the learned Additional Sessions Judge (Woman Atrocities And Dowry Cases), Sriganganagar in Sessions Case No.7/2011 (18/2011). Offences Under Section Sentences Fine Fine Default sentences 302 IPC Life Imprisonment Rs.1,000/ 3 months S.I. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Since the counsel representing the accused appellant pleaded no instructions, the accused was summoned before us through a production warrant and in his presence, Shri Rajiv Bishnoi, Advocate was appointed as Amicus Curiae to assist the Court on behalf of the appellant 4. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- 5. The appellant's sister Smt. Santosh was married to Sohanlal about 10-12 years ago. She gave birth to three children from the wedlock with Sohanlal. About 20-25 days prior to the incident, an information was received by the paternal family members of Santosh that she had abandoned her husband and had eloped with another person. Radhey Shyam, the appellant herein, went in search for Santosh. He brought her back to the paternal home on 31.01.2011 in the early hours of the morning at about 03.00- 04.00 am. Ramchandra and Radhey Shyam tried to counsel Santosh to live with her husband but she was not agreeable to this suggestion and insisted that she would live with the other man. In the morning at about 10 O' Clock, Ramchandra had gone to Khatwa and Bhavwala for the community discussion regarding the fate of Santosh. He returned home at about 1.00 pm. in the afternoon at which point of time, his son i.e. the appellant herein was standing at the gate of the house with his clothes drenched in blood. The informant asked his son Radhey Shyam (appellant herein) as to what had happened to which, he replied that he had done the job of Santosh and that he should go in and see with his own eyes. The informant went to the room of the appellant and saw the ensanguined dead body of Santosh with her neck chopped in half. Shri Ramchandra lodged a written report (Ex.P/13) to this effect with the SHO, Sadulshahar, District Sriganganagar against his own son Radhey Shyam (the appellant) on 31.01.2011 at 01.30 pm. The informant went to the room of the appellant and saw the ensanguined dead body of Santosh with her neck chopped in half. Shri Ramchandra lodged a written report (Ex.P/13) to this effect with the SHO, Sadulshahar, District Sriganganagar against his own son Radhey Shyam (the appellant) on 31.01.2011 at 01.30 pm. at the place of incident upon which, a formal FIR No.13/2011 (Ex.P/28) was registered at the Police Station, Sadulshahar for the offence under Section 302 IPC. Shri Sunil Kumar, SHO (PW-14), conducted investigation and prepared the relevant memorandums in the following manner: (i) Surathaal Lash (Ex.P/9), (ii) Site Inspection Plan (Ex.P/2), (iii) Site inspection memo (Ex.P/2A), (iv) Seizure memo of blood stained soil (Ex.P/3), (v) Seizure memo of plain soil (Ex.P/4), (vi) Seizure memo of Chunni of the deceased (Ex.P/5), (vii) Seizure memo of hair of the deceased (Ex.P/6), (viii) Seizure memo of broken pieces of bangles (Ex.P/7), (ix) Seizure memo of the cloth used to tie legs of the deceased (Ex.P/8), (x) Panchayatnama Lash (Ex.P/10) and (xi) Seizure memo of clothes of the deceased (collected after postmortem (Ex.P/11). 6. The dead body of Smt. Santosh was subjected to postmortem at the hands of the Medical Officer, Government Hospital, Sadulshahar Dr. Mahesh (PW-13) who issued the postmortem report (Ex.P/29) noticing no less than 14 injuries on the body of the deceased. The injury No.1 was described as a lacerated wound on the back of the neck admeasuring 17X2X5 cms. with the bones and the large blood vessels severed. The injury No.2 was a lacerated wound admeasuring 7X1 bone deep wound on the center of the head and as a result, the underlying bones and membranes were damaged. There was a lacerated wound on the mouth of the deceased due to which, three teeth on the left side of the upper jaw were broken. The accused appellant was arrested on the very same day vide arrest memo (Ex.P/23). The SHO Sunil Kumar recovered the blood stained clothes worn by the accused at the time of his arrest vide seizure memo (Ex.P/24). The accused gave an information to the I.O. under Section 27 of the Evidence Act (Ex.P/30) in furtherance whereof, he got recovered a Kassi which was seized vide seizure memo (Ex.P/25). After concluding investigation, the I.O. proceeded to file a chargesheet against the accused appellant for the offence under Section 302 IPC. The accused gave an information to the I.O. under Section 27 of the Evidence Act (Ex.P/30) in furtherance whereof, he got recovered a Kassi which was seized vide seizure memo (Ex.P/25). After concluding investigation, the I.O. proceeded to file a chargesheet against the accused appellant for the offence under Section 302 IPC. Since the offence was Sessions triable, the case was committed to the court of the Additional Sessions Judge (Woman Atrocities And Dowry Cases), Sriganganagar. The trial court framed charge against the appellant for the above offence. He pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses and exhibited 35 documents to prove its case. Upon being questioned under section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. He took a plea that on the fateful day, he had gone to the matrimonial home of Smt. Santosh. A panchayat was held at the Police Outpost Bhavwala and that he was present in the Panchayat till 2 O' clock and that he was not responsible for the murder. The appellant examined himself in defence wherein, he claimed that after the Panchayat aforestated, he returned to his home at about 3 O' Clock in the afternoon and saw the dead body of his sister lying inside the house and informed the police on telephone. He waited for 4-5 minutes and then brought the police. On being asked by the police officers, he Gurlal Singh, Khemaram and a policeman moved the dead body and in this process, his clothes got stained with her blood. The body was then taken to the hospital. He got annoyed with the police because they reached the place of occurrence after some delay and thus, he had been falsely implicated in the case. Upon hearing the arguments advanced by the prosecution and the defence and after appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the accused appellant as above. Hence this appeal. 7. Shri Rajiv Bishnoi, learned Amicus Curiae representing the appellant, vehemently and fervently urged that there is no independent witness to prove the charge against the appellant. The material witnesses Gurlal Singh (PW-1), Ramchandra (PW-2), Sohanlal (PW-5) and Ratiram (PW-6) did not support the prosecution case and were declared hostile. Hence this appeal. 7. Shri Rajiv Bishnoi, learned Amicus Curiae representing the appellant, vehemently and fervently urged that there is no independent witness to prove the charge against the appellant. The material witnesses Gurlal Singh (PW-1), Ramchandra (PW-2), Sohanlal (PW-5) and Ratiram (PW-6) did not support the prosecution case and were declared hostile. He urges that the learned trial court was totally unjustified in drawing inferences on the basis of flimsy pieces of circumstantial evidence and convicting the appellant as above. He contended that the defence put-forth by the accused that the police officers implicated him because he abused them is more probable and hence, as per him, the appellant deserves to be acquitted while giving him the benefit of doubt. In arguendo, the Amicus Curiae submitted that the case of the accused falls within the exception 'Fourth' of Section 300 IPC and as such, the conviction of the appellant deserves to be altered from one under Section 302 IPC to that under Section 304 Part I IPC. In support of this contention, Shri Bishnoi relied upon the following judgments: (i) Surain Singh vs. State of Punjab, (2017) 5 SCC 796 , and (ii) Atul Thakur vs. State of Himachal Pradesh & Ors, (2018) 2 SCC 496 . 8. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the defence put-forth by the accused that he was not present in the house when the incident took place, is totally falsified from the written report (Ex.P/13) submitted by his own father Ramchandra. He urged that the report was submitted to the SHO Police Station Sadulshahar at 01.30 pm. and in this report, the accused appellant is clearly named to be the assailant. Thus, the defence taken by the accused that he reached home at 3 O' clock in the afternoon and then, he called the police, is totally falsified. He further submitted that Ramchandra, when examined on oath, admitted that the application for lodging of the report bore his thumb impression. He also admitted that the room in which, the dead body of Santosh was lying, was that of Radhey Shyam. Learned Public Prosecutor submitted that these facts as appearing in the statement of Ramchandra coupled with the incriminating circumstances of blood stained recoveries made at the instance of the accused, clearly establish his guilt beyond all manner of doubt. He also admitted that the room in which, the dead body of Santosh was lying, was that of Radhey Shyam. Learned Public Prosecutor submitted that these facts as appearing in the statement of Ramchandra coupled with the incriminating circumstances of blood stained recoveries made at the instance of the accused, clearly establish his guilt beyond all manner of doubt. So far as the contention of Shri Bishnoi for toning down of the offence is concerned, hu urged that the brutality with which the accused assaulted his own sister, simply because she was not agreeable to live with her husband, clearly establishes the fact that the accused eliminated her intentionally by way of an honour killing. He thus urged that the appeal should be dismissed in toto. 9. We have given our thoughtful consideration to the submissions advanced at bar and have minutely re-appreciated the evidence available on record. 10. The written report (Ex.P/13) bearing the thumb impressions of Ramchandra was submitted to Shri Sunil Kumar, SHO at 01.30 pm. at the place of occurrence i.e. the house where the appellant and the informant lived. In this report, it was clearly mentioned that Santosh was embroiled in a matrimonial strife with her husband and had eloped with another man. The report also mentions that Radhey Shyam had brought Santosh back to the paternal home. These facts could not have been incorporated in the FIR, if the defence theory had even an iota of truth. As per the defence theory, Radhey Shyam came back to his house after the alleged Panchayat and reached there at 03.00 pm. and then he called the police. However, the lodging of the FIR at 01.30 pm. clearly demolishes this defence. Merely because Ramchandra did not support the FIR in entirety, the significant admissions appearing in his cross-examination can be used as corroborative factors to support the circumstances appearing in prosecution evidence. The witness Ramchandra admitted his thumb impressions on the various documents which were prepared by the I.O. during the course of investigation as have been referred to supra. All these documents were prepared between 02.35 pm. to 04.45 pm. Ramchandra admitted in his cross-examination conducted by the learned Public Prosecutor that the room where dead body of Santosh was recovered was that of Radhey Shyam the appellant herein. Radhey Shyam was apprehended by the I.O. vide arrest memo (Ex.P/23) at 05.00 pm. All these documents were prepared between 02.35 pm. to 04.45 pm. Ramchandra admitted in his cross-examination conducted by the learned Public Prosecutor that the room where dead body of Santosh was recovered was that of Radhey Shyam the appellant herein. Radhey Shyam was apprehended by the I.O. vide arrest memo (Ex.P/23) at 05.00 pm. on the very day of the incident. At that time, his shirt was blood stained. The plea put- forth by the appellant that these blood stains were received while moving the dead body after he had reached home is totally false and fabricated because the I.O. had already started the documentation including the Panchnama at 02.35 pm. All these documents bear the thumb impressions of Ramchandra. The accused, after being arrested, gave a voluntary information to the I.O. under Section 27 of the Information Act in furtherance whereof, he got recovered a Kassi vide seizure memo (Ex.P/25). Manifestly, the investigation officer had no animosity against the accused so that he would go to the extent of falsely implicating him for the murder of his own sister. The articles seized during investigation i.e. the blood stained soil from the spot, the hair of the deceased, blood stained clothes, the apparel of the accused and the Kassi recovered at his instance were forwarded to the FSL from where, a report (Ex.P/31) was received concluding that all these articles were stained with 'B' Group human blood. On a perusal of the evidence of the Medical Officer Shri Mahesh (PW13), it becomes clear as day light that the deceased was brutally assaulted and no less than 14 injuries were inflicted upon her entire body. The injury No.1 loosely described as a lacerated wound, resulted into a wound admeasuring 17x2x5 cms. on the back of the neck with corresponding chopping off of the bones of the neck and the large blood vessels. Such injury could only have been caused by a sharp weapon. In addition to this, the injury No.2 was caused on the head of the deceased resulting into the fracture of the bones and damage to the membranes of the bone. The brutality with which, injuries were repeatedly inflicted to the deceased clearly establishes that the intention of the accused was to kill her at any cost. In addition to this, the injury No.2 was caused on the head of the deceased resulting into the fracture of the bones and damage to the membranes of the bone. The brutality with which, injuries were repeatedly inflicted to the deceased clearly establishes that the intention of the accused was to kill her at any cost. The incident was clearly perpetrated because the accused felt that the family's reputation had been tarnished by the act of the deceased who had abandoned her own husband and had started living with another man. Thus, the contention of Shri Rajiv Bishnoi, Amicus Curiae that the offence if any would not travel to beyond Section 304 Part I is totally untenable. 11. In view of the discussion made herein above, we are of the firm opinion that the prosecution has led convincing evidence forming a complete chain of circumstances invariably pointing towards the guilt of the accused and incompatible with his innocence. The accused failed to offer any explanation regarding the grave incriminating circumstances of the dead body of his own sister being found lying in his room and that his shirt and the Kassi recovered at his instance bore the blood of the same group as that of the deceased. These circumstances taken together invariably point to the guilt of the accused and are incompatible with his innocence. 12. In wake of the discussion made herein above, we are of the firm opinion that the trial court was absolutely justified in reaching to the only possible conclusion that the accused was infallibly responsible for murdering his own sister. The act alleged is so heinous and gruesome and the assault was perpetrated without any provocation whatsoever on the part of the deceased and hence, this Court would be loathe to accept the submissions of the defence counsel that the offence deserves to be toned down from Section 302 IPC. The impugned judgment does not suffer from any infirmity, illegality or shortcoming whatsoever warranting interference. 13. Hence, we affirm the impugned judgment dated 24.01.2012 passed by the learned Additional Sessions Judge (Woman Atrocities And Dowry Cases), Sriganganagar in Sessions Case No.7/2011 (18/2011). The appeal being devoid of merit is hereby dismissed. 14. Record be returned to the trial court forthwith.