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2019 DIGILAW 1996 (RAJ)

Ram Swaroop v. State of Rajasthan

2019-07-18

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT 1. The appellant herein stands convicted and sentenced as below vide the judgment dated 04.07.2015 passed by the learned Additional Sessions Judge No.2, Hanumangarh in Sessions Case No.28/2012 : Offence for which convicted Sentence awarded Section 302 IPC Life term imprisonment alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo two months' rigorous imprisonment Section 201 IPC Five years' rigorous imprisonment alongwith a fine of Rs.2000/- and in default of payment of fine, further to undergo one month's rigorous imprisonment Both the substantive sentences were ordered to run concurrently 2. Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374 (2) CrPC. 3. The brief facts relevant and essential for disposal of the appeal are noted hereinbelow. 4. Roshan Lal S/o Mohan Lal, by caste Bawari, resident of Kheruwala, submitted a written report (Ex.P/1) to the Station House Officer, Police Station Pilibanga on 18.09.2011 at 05.10 p.m. alleging inter alia that his sister Vimla was married to Mahaveer S/o Ram Swaroop Bawari, resident of Manak Thedi on 01.09.2011. Just four days after her marriage, Vimla called her maternal relatives and complained that her father-in-law Ram Swaroop (the appellant herein) had assaulted her on the pretext that she was visited by ghosts. Upon this, the complainant and his father Mohan Lal went to Manakthedi, the village of the accused, where, Vimla confided in them that her father-in-law Ram Swaroop was beating her on a daily basis by branding her to be afflicted with spirits. Mohan Lal and Roshan Lal enquired about this from Ram Swaroop, to which, he replied that they should not intervene and the he would free Vimla from the evil spirits, which were haunting her. Upon this, the informant and his father went back to their village. On 16.09.2011, Vimla called Roshan Lal on phone and complained that Ram Swaroop had again indulged in beating her on the same premise and that she should be taken back to the maternal home. Upon this, Roshan Lal and his brother-in-law Ram Kumar went to the village of the accused and tried to counsel Ram Swaroop who insisted that he would treat Vimla and relieve her of the evil spirits. In the evening, the informant Roshan Lal, Ram Kumar, Mahaveer and Vimla were talking to each other after having food. Upon this, Roshan Lal and his brother-in-law Ram Kumar went to the village of the accused and tried to counsel Ram Swaroop who insisted that he would treat Vimla and relieve her of the evil spirits. In the evening, the informant Roshan Lal, Ram Kumar, Mahaveer and Vimla were talking to each other after having food. At about 10 o'clock, Ram Swaroop came from outside and immediately upon entering the house, he started hitting Vimla on her head and back with an iron rod. Vimla shouted and fell down. Roshan Lal asked Ram Swaroop as to the reason of this aggression, upon which, he warned that they should keep away or else the spirits might afflict them as well. A little later, Vimla passed away. Ram Swaroop intimidated the informant and his relatives with the threat of evil spirits and by creating an atmosphere of terror, the dead body of Vimla was cremated in the morning. The first informant was very scared. He, his brother-in-law and his parents, who had come for the funeral, went back to their village and contemplated, whereafter, Roshan Lal mustered courage and lodged the written report with the above allegations. On the report aforesaid, an FIR No.406/2011 (Ex.P/2) was registered at the Police Station Pilibanga against the accused appellant for the offences under Section 302 and 201 IPC. 5. During the course of investigation, the complainant supplied some photographs and a C.D. prepared before the funeral of Vimla displaying the marks of violence on her body. The Investigating Officer collected the pieces of burnt bones, conducted site inspection, arrested the accused appellant and proceeded to file a charge-sheet against him for the above offences. 6. Since the offences were Sessions triable, the case was committed and transferred to the Court of the Additional Sessions Judge No.2, Hanumangarh for trial. The trial court framed charges against the accused for the above offences, who pleaded not guilty and claimed trial. The prosecution examined as many as 8 witnesses and exhibited 23 documents to prove its case. Upon being questioned under Section 313 CrPC, the accused denied the prosecution allegations and claimed that he had been falsely implicated in the case. 7 witnesses were examined in defence to prove the theory that the deceased was suffering from epileptic fits and she expired thereby. Upon being questioned under Section 313 CrPC, the accused denied the prosecution allegations and claimed that he had been falsely implicated in the case. 7 witnesses were examined in defence to prove the theory that the deceased was suffering from epileptic fits and she expired thereby. Vimla's maternal relatives were present at the house of the accused, when she passed away and that the cremation was carried out with their consent and active participation. 7. After appreciating the arguments advanced by the Public Prosecutor and the defence counsel and evaluating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above by the impugned judgment dated 04.07.2015. Hence, this appeal. 8. Mr. Shree Kant Verma, learned counsel representing the appellant, urged that the conviction of the appellant as recorded by the impugned judgment is absolutely illegal and unjustified. He submitted that there are grave contradictions in the statements of the eye-witnesses Roshan Lal (P.W.1) and Ram Kumar (P.W.2) regarding the time of incident. He further submitted that the maternal relatives of the deceased Smt. Vimla were admittedly present at the house of the accused from well before the incident and had there been an iota of truth in the allegation that the appellant assaulting her, then her brother and brother-in-law would have intervened to save her. He urged that as a matter of fact, the deceased was suffering from fits and seizures even before her marriage and the symptoms persisted and manifested in the matrimonial home. The maternal relatives of the deceased did not make a disclosure about her illness before the marriage. When the symptoms persisted, the accused appellant, who used to perform some kind of exorcism, tried to cure the deceased in a crude rustic manner by trying to thrash her believing that she was haunted by spirits. He indulged in these activities on a few occasions even in the presence of her maternal relatives, without causing any harm to the girl and thus, they never objected to the same. Hence, as per Mr. Verma, the act of the accused in assaulting the deceased was a bonafide act done in ignorance because in villages, acceptance of this type of exorcism is commonly for prevalent repelling the evil spirits and the symptoms of seizures, convulsions etc. Hence, as per Mr. Verma, the act of the accused in assaulting the deceased was a bonafide act done in ignorance because in villages, acceptance of this type of exorcism is commonly for prevalent repelling the evil spirits and the symptoms of seizures, convulsions etc. are generally treated through Bhopas, Tantriks etc, who sometimes indulge in beating the victim in the genuine belief that they would alleviate the symptoms in this manner. He urged that the admitted fact that the maternal family members of the deceased did not object to the cremation of the dead body and participated therein without getting the postmortem done, makes it amply clear that they too were equally eager to get Smt. Vimla cured of the symptoms of the disease, which she was suffering from. He urged that while thrashing the deceased with the stick, the accused was making a bonafide attempt to cure her and some blow might have accidentally landed on the vital organs leading to her death. Thus, as per him, there was no intention on the part of the accused appellant to kill Smt. Vimla. He further urged that in absence of the body of Vimla having been subjected to postmortem, it cannot be concluded with any degree of certainty that her death was unnatural or otherwise than under normal circumstances. On these grounds, he implored the court to accept the appeal and acquit the accused appellant of all the charges. His alternative submission was that even if the prosecution allegations are accepted to be true on the face of the record, the offence, if any attributed to the accused would not travel beyond Section 304 Part II IPC. He, thus, sought toning down of the charge and reduction of the sentence awarded to the accused suitably. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant. He contended that Roshan Lal (P.W.1), being the brother of the deceased, and Ram Kumar (P.W.2), being her brother-in-law, have given cogent, convincing and clinching evidence on oath establishing the fact that Smt. Vimla was married to Mahaveer, son of the appellant, just 16 days prior to the incident. Right after the marriage, the accused appellant indulged in assaulting the deceased under the pretext that she was afflicted by the spirits. Right after the marriage, the accused appellant indulged in assaulting the deceased under the pretext that she was afflicted by the spirits. The maternal family members went to the matrimonial home of the deceased and advised the appellant to desist from the brutal behavior, upon which, he apologized and promised to refrain from beating Vimla in future. However, just 10 days later, Vimla called Roshan Lal and complained that her father-in-law had again started beating her on the premise that she was haunted by the spirits. The witnesses Roshan Lal and Ram Kumar went to Vimla's matrimonial home. In their presence, the accused apologized that he had committed a mistake and would not repeat the same in future. During the same night and right in front of these maternal relatives of the deceased, the accused again assaulted Smt. Vimla on the head by an iron rod despite protest of her relatives. The assault was so brutal and vicious that the young girl married just 16 days earlier was killed on the spot. The accused and the villagers of the village Manak Thedi intimidated the maternal family members of the deceased and cremated the dead body without getting the same subjected to postmortem. He urged that the photographs (Ex.P/9 to Ex.P/19), which have been exhibited on record, clearly portray that the deceased was suffering from numerous blunt weapon injuries on her back, hands and cheeks etc. The bed-sheet on which the dead body was laid was drenched in blood. He, thus, urged that there is ample proof and evidence on record to satisfy the court that it is a case of cold blooded murder plain and simple. On these grounds, he implored the court to dismiss the appeal in entirety. 10. We have given our thoughtful consideration to the submissions advanced at bar and gone through the material available on record. 11. We are fully satisfied that there is ample material available on record in form of the evidence of Roshan Lal (P.W.1) and Ram Kumar (P.W.2) to satisfy the court that Vimla was married to son of the appellant herein on 01.09.2011. Just a few days after the marriage, the accused thrashed the girl on the pretext that she was haunted by evil spirits. The maternal family members of Vimla were informed and they came to the matrimonial home. Just a few days after the marriage, the accused thrashed the girl on the pretext that she was haunted by evil spirits. The maternal family members of Vimla were informed and they came to the matrimonial home. However, they appear not to have taken any action against the accused in this regard except for warning him to refrain in future. Manifestly, in view of the rank indifference shown in the maternal family members, a doubt is definitely created in the Court's mind that the deceased might have been suffering from some disease and showing some symptoms, which an ignorant person might believe to be signs of affliction by evil spirits. It is quite likely that Vimla's disease which probably was something akin to epileptic fits/seizures existed even before the marriage and when it manifested at the matrimonial home, as well the accused appellant took the things into his own hands and thrashed the deceased in an attempt to cure her. The maternal family members were informed and Roshan Lal and Ram Kumar were present at the spot and both claim that even in their presence, the accused assaulted the deceased. However, they appear to have made no effort whatsoever to rescue Vimla from the ordeal or to take her back to the maternal home. All these circumstances give a clear indication that the deceased was suffering from seizures, which were taken to be signs of being haunted by spirits owing to sheer illiteracy and ignorance and that is why, the maternal family members virtually acquiesced to the assault made by the accused upon the deceased which he was indulging in for curing her. The blows which the accused landed at the victim on previous occasions appear to have caused no significant harm. However, on the fateful day, the assault went out of proportions and it appears the blows rained by the accused on the deceased in an attempt to rid her of the spirits landed on some vital organ and unfortunately proved fatal. The maternal family members joined in the cremation of the dead body without making any serious attempt to stop the same or to report the matter to the police. The maternal family members joined in the cremation of the dead body without making any serious attempt to stop the same or to report the matter to the police. However, the photographs (Ex.P/9 to Ex.P/19) available on record are sufficient to satisfy the court that the death of Smt. Vimla was not natural and that she was inflicted blunt weapon injuries, which ultimately led to her unnatural death at the matrimonial home within a few days of her marriage. 12. In these circumstances, the significant question, which is posed before the court, is whether, while thrashing the deceased in an attempt to cure her of the so-called evil spirits, was the accused acting with intention to murder her or whether he had knowledge that he might kill her in this process. From the circumstances noted above, it can easily be inferred that the accused appellant as well as the maternal family members of the deceased are totally rustic, illiterate villagers and all of them misunderstood the symptoms of seizures etc. to be signs of the victim being haunted by spirits. Virtual acquiescence was shown by the maternal relatives in the act of the accused when he indulged in thrashing the deceased so as to make an attempt of curing her. Hence, we are duly satisfied that the intention of the accused while beating the deceased was simply aimed at making an attempt to cure her of these symptoms and not to kill her. Unfortunately, some of the blows seem to have landed on vital organs with extra force leading to her death. Thus, by no stretch of imagination, can the court be satisfied that the accused had any intention to kill the deceased while he was accosting her or that he had any knowledge that the assault may prove fatal. 13. In wake of the discussion made hereinabove, and the facts and circumstances noted supra, we are of the firm opinion that the conviction of the appellant recorded by the trial court for the offence under Section 302 IPC is not justified and the offence attributed to him deserves to be toned down to Section 304 Part II IPC. 14. Thus, the appeal is partly allowed. The impugned judgment dated 04.07.2015 passed by learned Additional Sessions Judge No.2, Hanumangarh in Sessions Case No.28/2012 is modified. 14. Thus, the appeal is partly allowed. The impugned judgment dated 04.07.2015 passed by learned Additional Sessions Judge No.2, Hanumangarh in Sessions Case No.28/2012 is modified. While the conviction of the accused appellant for the offence under Section 201 IPC and the sentence awarded on that count is maintained, his conviction is altered from the offence under Section 302 IPC to that under Section 304 Part II IPC. The appellant who was 45 years of age on the date of incident, is in custody since 20.09.2011, meaning thereby, he has undergone actual imprisonment of 7 years 10 months. Thus, we feel that ends of justice would be subserved by reducing the substantive sentence awarded to the accused appellant to the period already undergone by him. He is also sentenced to fine of Rs.5000/- and in default of payment of fine to further undergo two months' rigorous imprisonment. He shall be released from custody forthwith upon depositing the amount of fine, if not wanted in any other case. 15. However, keeping in view the provisions of Section 437- A CrPC, the accused appellant is 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 appellant shall appear before the Supreme Court.