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2019 DIGILAW 2020 (RAJ)

Dinesh v. State of Rajasthan

2019-07-22

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Abhay Chaturvedi, J. - Instant appeal under Section 374 (2) has been preferred by appellant Dinesh being aggrieved of the judgment dated 31.03.2014 passed by the Learned Additional Sessions Judge (Women Atrocities Cases), Udaipur in Sessions Case No. 98/2013, whereby the appellant has been convicted and sentenced as below :- Under Section 498-A IPC Three years Rigorous Imprisonment and a fine of Rs. 5000/- and in default of payment of fine to further undergo 2 months' simple imprisonment. Under Section 302 IPC Life Imprisonment and a fine of Rs. 10,000/- and in default of payment of fine to further undergo 4 months' simple imprisonment. Under Section 201 IPC Five years Rigorous Imprisonment and a fine of Rs. 5000/- and in default of payment of fine to further undergo 2 months' simple imprisonment. 2. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. 3. The prosecution story emanates from a written report (Ex/P-1) submitted by complainant Ramchandra s/o Khemraj Lohar R/o Post Lakadwas, Tehsil Girwa, District Udaipur to the SHO, Police Station Fateh Nagar on 09.02.2012 at 8:30 am alleging inter alia that the marriage of his daughter Radha was solemnized at village Lakadwas about 5 years ago with Dinesh s/o Bhanwarlal Lohar. After her marriage, Radha used to come to her parental house. About 8 months ago, Radha's husband assaulted her after consuming liquor and on account of which Radha came back to her parental house and remained there for about 6 months. Thereafter, Narayan Ji (brother-in-law of Radha), Bhanwarlal (Father-in-law) and her husband Dinesh after counseling her thoroughly and on assurance of good behavior with Radha took her with them to Fateh Nagar. Even despite all these assurances, whenever Radha used to come to her parental house, she would complain that her husband Dinesh indulged in beating her. On the previous day, i.e. 08.02.2012 at about 9:15 pm, it was informed by the Fateh Nagar Police Station that Radha had passed away and her dead body was lying in Sanwad Hospital and they were called there. On receipt of the said information, he, along with other members of the family proceeded to Fateh Nagar in the night itself, where they saw the dead body of Radha was lying in the Hospital. There were marks of strangulation around the neck and injuries on the face. On receipt of the said information, he, along with other members of the family proceeded to Fateh Nagar in the night itself, where they saw the dead body of Radha was lying in the Hospital. There were marks of strangulation around the neck and injuries on the face. The informant alleged that his daughter had been murdered by her husband Dinesh. 4. On the basis of this written report, an formal FIR No. 21/2012 (Ex/P-2) came to be registered at Police Station Fateh Nagar for the offence under Section 302 of IPC and Shri Prem Singh SHO, Police Station Fateh Nagar (PW-11) proceeded to investigate the case. 5. During investigation, the following documents were prepared by Shri Prem Singh, the Investigating Officer (PW-11): (i) Inquest Memo - Ex.P/3 (ii) Fard Supurdgi Lash - Ex.P/4 (iii) Site Plan - Ex.P/7 (iv) Seizure Memo of Hair Clip, broken Plastic Bangles three in number, Seizure Memo of Hair Rubber Band - Ex.P/8 (v) Seizure Memo of Mufflur and Old Used Cloth having a knot - Ex.P/9 (vi) Site Inspection Memo - Ex.P/10 6. The death body of the deceased Smt. Radha was subjected to Post Mortem Examination at PHC, Sanwad by a Medical Board on 09.02.2012, which issued the Post Mortem Report (Ex.P/5) wherein, the cause of death was opined as Asphyxia as result of Ante - Mortem strangulation which was sufficient to cause death in the ordinary course of nature. The accused-appellant was arrested on 09.02.2012 vide Arrest Memo (Ex.P/31) and was medically examined by Dr. Mahesh Prakash Vajuvawat (PW-5) and 7 simple injuries by blunt weapon were found on the body of the accusedappellant vide MLR (Ex.P/6). Photographs of the deceased and the place of occurrence and (Ex.P/11 to 30) were also taken by PW-8- Lokesh Acharya. The statements of the witnesses were recorded under Section 161 of CrPC by the Investigating Officer. Thereafter, a charge-sheet was filed against the accused-appellant before the Magistrate concerned for the offences under Section 498-A, 302 and 201 of IPC. Since the case was exclusively triable by the Court of Sessions, therefore, the case was committed and transferred to the Court of learned Additional Sessions Judge as above and trial was commenced. 7. The trial Court framed charges against the accused-appellant for the offences under Sections 498-A, 302 and 201 of IPC, who pleaded not guilty and claimed to be tried. 7. The trial Court framed charges against the accused-appellant for the offences under Sections 498-A, 302 and 201 of IPC, who pleaded not guilty and claimed to be tried. The prosecution examined 15 witnesses and 33 documents were exhibited. The accused-appellant was also questioned under Section 313 of CrPC, wherein he stated that he had been falsely implicated in this case. 8. After hearing the arguments advanced by the learned Public Prosecutor and the Defence Counsel and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as mentioned above. 9. Mr. Kalu Ram Bhati, learned counsel for the appellant, while challenging the impugned judgment passed by the trial Court submitted that the trial Court has not considered the material facts and without any legal evidence has held the accusedappellant guilty for the alleged offences. He has further urged that there is no eye witness to the occurrence when the police reached at the place of occurrence and inspected the site, the police found a cloth in the shape of a knot was tied with an angle which shows that the deceased committed suicide and no other person is responsible for her death. There is no evidence on record to prove that the accused-appellant strangulated the neck of his wife and murdered her in this manner. He thus, implored the court to accept the appeal, set aside the impugned judgment and acquit the accused-appellant of the charges. 10. On the other hand, the learned Public Prosecutor supported the impugned judgment and refuted the submissions made by learned counsel for the appellant and thus states that the judgment of the trial Court is in consonance with the evidence produced by the prosecution. On these grounds, he implored the court to dismiss the appeal and affirm the impugned judgment. 11. We have given our thoughtful consideration to the submissions advanced at bar and have re-appreciated the evidence available on record threadbare and carefully perused the impugned judgment. 12. From a perusal of the evidence adduced by the prosecution, it transpires that the deceased Smt. Radha was married to the accused appellant Dinesh 5 years before her death. After lapse of some time of the marriage, the accused-appellant started torturing the deceased and she was beaten often. 12. From a perusal of the evidence adduced by the prosecution, it transpires that the deceased Smt. Radha was married to the accused appellant Dinesh 5 years before her death. After lapse of some time of the marriage, the accused-appellant started torturing the deceased and she was beaten often. The cruel behaviour of accused-appellant drove the deceased to live her at parental house at village Lakadwas Police Station Pratap Nagar, Udaipur where she stayed for a period of 6 months, but on counselling and assurance of good behavior given by the accusedappellant and his family members, the deceased came back to the matrimonial house at Fateh Nagar. 13. On 08.02.2012, Smt. Radha was found dead in the matrimonial house situated at village Fateh Nagar. During investigation, Site Inspection Plan (Ex/P-7) was prepared by the Investigation Officer. Which shows that place marked as "A" is a room ad measuring 8x9 feet and place marked as "B" is also a small room. It was also observed by the Investigating Officer at the time of the preparation of the site plan that at place marked as "B", a cloth given the shape of a knot was tied with a hook to the angle so as to give an impression that the deceased committed suicide by hanging but the Investigating Officer did not believe the possibility of hanging by the deceased after noting the following signs available at the spot : 14. The post mortem report (Ex.P/5) reveals that the cause of death of the deceased is Asphyxia as a result of the strangulation. Dr. Mahesh Prakash Vajuvawat (PW-5), who was one of the members of the medical board, stated on oath that at the time of the post mortem examination, he found a ligature mark around the neck of the deceased and there were abrasions also on the face and neck of the deceased. He reiterated that the cause of death was Asphyxia due to the strangulation. On the same day he also examined the accused-appellant (vide Ex.P/6) and 7 abrasions were found on the different parts of the body. 15. He reiterated that the cause of death was Asphyxia due to the strangulation. On the same day he also examined the accused-appellant (vide Ex.P/6) and 7 abrasions were found on the different parts of the body. 15. Admittedly, the accused-appellant and the deceased used to live together at the house mentioned in Site Plan (Ex.P/7) and the deceased was found dead due to the Asphyxia as a result of the strangulation so it was within the special knowledge of the accused-appellant as to what had happened in the house which led the death of the deceased. Therefore, it was the duty of the accused-appellant to explain these circumstances during trial. The statement of the accused-appellant was recorded under Section 313 of CrPC. The accused-appellant did not offer any explanation but merely stated that he had been falsely implicated in this case. 16. During the examination of PW-1 Ramchandra and PW-2 Veniram, it was suggested by the counsel for the accusedappellant that PW-1 Ramchandra wanted to remarry the deceased by way of nata and the deceased also wanted so, therefore, she herself committed suicide. At the time of examination of PW-4 Kalu Singh and PW-7 Kishan, a contradictory suggestion was put to these witnesses that while going to the hospital, the accusedappellant told them that an unknown person was beating the deceased and in the course of rescuing the deceased, he also sustained injuries. The suggestions so put forward to PW-1 Ramchandra, PW-2 Veniram, PW-4 Kalu Singh and PW-7 Kishan go to show that the contradictory defence has been taken by the accused-appellant. However, the prosecution witnesses have clearly denied the suggestions so put to them. Apart from that, at the time of preparation of site plan (Ex./P-7), the Investigating Officer ruled out the possibility of the deceased having committed suicide by hanging. At the time of recording of the statement under Section 313 of CrPC., the accused-appellant did not offer any explanation regarding the homicidal death of his wife by strangulation and a bald denial was offered. Therefore, there is nothing on record which can be treated to be a logical / acceptable explanation of the accused-appellant. At the time of recording of the statement under Section 313 of CrPC., the accused-appellant did not offer any explanation regarding the homicidal death of his wife by strangulation and a bald denial was offered. Therefore, there is nothing on record which can be treated to be a logical / acceptable explanation of the accused-appellant. Hence, net result is that the accused-appellant has not explained the circumstances in which, his wife died in the matrimonial home, so the presumption of guilt of accused-appellant under Section 106 of the Evidence Act has to be raised in this case and adverse inference deserves to be drawn against him. 17. Hon'Ble the Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC 211 has observed in para 22 and 23 as under : "22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. 23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh." 18. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh." 18. The law laid down by the Apex Court in the Thakur Singh's case is fully applicable in the facts and circumstances of this case. 19. The previous conduct of the accused-appellant which emerges from the statements of PW-1 Ramchandra, PW-2 Veniram, PW-15 Dalchand, PW-7 Kishan also corroborates the case of the prosecution that after a lapse of some time from the marriage, the accused-appellant started torturing and beating the deceased Smt. Radha who was married to the accused-appellant just for 5 years. Dr. Mahesh Prakash Vajuvawat (PW-5) who examined the accused-appellant found injuries on the person of the accused-appellant. He also noticed smell of liquor coming out from the mouth of the accused-appellant at the time of his examination. Thus, injuries on the face of the accused and smell of liquor point out the possibility of the accused, being in an intoxicated state, attempted to strangulate the deceased and in the course of scuffle, he sustained abrasions on his face. Hence, these circumstances also strengthen the case of the prosecution. 20. A perusal of the statements of PW-4 Kalusingh, PW-14 Dr. Mahaveer Sharma and PW-15 Dalchand, shows that the accusedappellant had taken the deceased to the Aalokit Hospital and thereafter Sanwad Hospital himself in the auto of PW-4 Kalu Singh. Even if it is assumed that the deceased was taken to the hospital by the accused-appellant, this cannot be a mitigating circumstance, specially when the accused-appellant has not stated about these facts in his statement recorded under Section 313 of CrPC. 21. In these circumstances, the prosecution has proved its case against the accused-appellant beyond reasonable doubt that the accused-appellant used to torture his wife Smt. Radha and that on 08.02.2012, after consuming liquor, he strangulated her to the death. 22. In view of the above, we find no reason whatsoever to interfere with the findings of the trial court while convicting the accused - appellant for the offences under Sections 498-A, 302 and 201 IPC vide impugned judgment dated 31.03.2014. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. 22. In view of the above, we find no reason whatsoever to interfere with the findings of the trial court while convicting the accused - appellant for the offences under Sections 498-A, 302 and 201 IPC vide impugned judgment dated 31.03.2014. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The impugned judgment dated 31.03.2014 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Udaipur is upheld. 23. The record of the trial court be sent back forthwith.