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2019 DIGILAW 2813 (RAJ)

Dadamchand v. State of Rajasthan

2019-11-08

MAHENDAR KUMAR GOYAL, SANDEEP MEHTA

body2019
JUDGMENT Mahendar Kumar Goyal, J. - Accused-Appellant Dadamchand stands convicted and sentenced as hereunder, vide judgment impugned dated 28.05.2016 passed by the learned Addl. Sessions Judge No.5, Udaipur, in Sessions Case No.76/2016, CIS No.653/2014: U/s 302 IPC: Imprisonment for life and a fine of Rs.5,000/-. In default of payment of fine to further undergo simple imprisonment for three months. U/s 201 IPC: Simple imprisonment for three years and a fine of Rs.3,000/-. In default of payment of fine to further undergo simple imprisonment for two months. U/s 177 IPC: Simple imprisonment for two years and a fine of Rs.2,000/-. In default of payment of fine to further undergo simple imprisonment for two months. U/s 193 IPC: Simple imprisonment for three years and a fine of Rs.3,000/-. In default of payment of fine to further undergo simple imprisonment for three months. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentenced, the accused-appellant preferred the instant appeal under Section 374(2) Cr.P.C. 3. The facts in brief, relevant for disposal of the appeal, are as under: A written report (Ex.P/20) dated 06.07.2012 came to be filed by the accused-appellant Dadamchand with the SHO Police Station Phalasiya, District Udaipur, stating therein that while he was sitting on the shop with Gopal Chand, in the evening of 05.07.2012 at about 8:30 p.m., his wife Smt. Hansi Devi was hit by a motorcycle being driven rashly and negligently by its driver when she had come out of the house to answer the call of nature. It was averred that when he alongwith Gopal Chand was taking Smt. Hansi Devi for treatment in a hired jeep, she expired on the way. It was submitted that body of his wife was lying at home. On the aforesaid report, an FIR No.96/2012 (Ex.P/21) dated 06.07.2012 was lodged under Section 304-A IPC. 4. During the course of investigation, a written report (Ex.P/7) dated 07.07.2012 came to be submitted by Vajeram (PW2) at the Police Station Phalasiya alleging therein that Smt. Hansi was murdered by her husband Dadamchand by giving her an axe (Kulhari) blow. On the aforesaid report, an FIR No.96/2012 (Ex.P/21) dated 06.07.2012 was lodged under Section 304-A IPC. 4. During the course of investigation, a written report (Ex.P/7) dated 07.07.2012 came to be submitted by Vajeram (PW2) at the Police Station Phalasiya alleging therein that Smt. Hansi was murdered by her husband Dadamchand by giving her an axe (Kulhari) blow. As per the Panchanama (Inquest Report Ex.P/3) as well as the Autopsy Report (Ex.P/26), the deceased was found to have received an incised wound on the back of the neck at skull and neck-joint and in opinion of the doctor, cause of death was neurogenic shock due to brainstem injury which led to cardio respiratory arrest. No other significant injury, except a lacerated wound measuring 3x3x1 cm and a bruise in the size of 3x3 cm; both on the right elbow, was found on the person of the deceased. 5. On the strength of the postmortem report wherein, the injury which was noted by the medical officer to have been inflicted by a sharp-edged weapon, offences under Section 302, 201 IPC were added to the case. The accused-appellant Dhadamchand was arrested during the course of investigation and on his information furnished to the Investigating Officer under Section 27 of the Indian Evidence Act 1872 (Ex.P/24), the weapon of offence i.e. the axe having blood-stains as well as the bloodstained shirt worn by the accused at the time of incident, were recovered from his house vide Recovery Memo (Ex.P/6) dated 09.07.2012. The seized articles viz., the blood-stained soil and damar recovered from the place of incident; the blood-stained axe and the blood-stained shirt worn by the appellant at the time of incident; as well as the blood-stained piece of Saree worn by the deceased were sent to FSL for chemical and serological examination (Ex.C/1). 6. As per the FSL report dated 23.07.2012, human blood group 'B' was found on all the aforesaid articles. The police, after completion of the investigation, submitted a charge-sheet against the accused-appellant for offences under Section 302 and 201 IPC. Since, the offences were exclusively triable by the Sessions Court, the case was committed and transferred to the Court of learned Additional Sessions Judge No.5, Udaipur for trial. The prosecution examined as many as ten witnesses in support of its case and also exhibited 26 documents. The accused was examined under Section 313 CrPC. Since, the offences were exclusively triable by the Sessions Court, the case was committed and transferred to the Court of learned Additional Sessions Judge No.5, Udaipur for trial. The prosecution examined as many as ten witnesses in support of its case and also exhibited 26 documents. The accused was examined under Section 313 CrPC. No defence evidence was produced except the statement of the witness PW3 Veerji recorded by the investigating officer under Section 161 CrPC was exhibited as Ex.D/1. 7. The learned trial Court, after hearing the prosecution as well as defence counsel, vide its judgment dated 28.05.2016 convicted and sentenced the accused-appellant as stated hereinabove. 8. While hearing the appeal, this Court found that although the FSL report dated 23.07.2012 was produced in the Court; but, unfortunately the learned Public Prosecutor as well as the learned Trial Court did not get the same exhibited resulting into no question being put to the accused in reference thereto when he was subjected to examination under Section 313 Cr.P.C. This Court, on perusal of the record was of the opinion that the FSL report throws a significant light on the prosecution case and hence, vide its order dated 12.07.2019 the accused-appellant was summoned from jail through production warrant for examination under Section 313 Cr.P.C. regarding the FSL report. In pursuance thereof, the appellant was produced before this Court on 29.07.2019 whereupon his additional statement was recorded and explanation was sought as to contents of the FSL report (Ex.C/1) dated 23.07.2012 under Section 313 Cr.P.C. and regarding its incriminating nature, which now is a part of the record. The accused feigned ignorance as to the report. 9. The learned counsel Shri Deepak Menaria, appearing for the appellant has submitted that there is no evidence on record worth reliance to warrant conviction of the appellant. It was submitted that it being a case purely based on circumstantial evidence, the prosecution was required to establish beyond all reasonable doubt, the complete chain of circumstantial evidence leading to the only hypothesis of guilt of the accused. However, the prosecution has miserably failed in establishing the same. It was argued that Dr. Rajeev Ameta (PW10), who conducted autopsy upon body of the deceased, categorically stated during his cross-examination that the injury which was found to be fatal, could have been a result of an accident with motorcycle. However, the prosecution has miserably failed in establishing the same. It was argued that Dr. Rajeev Ameta (PW10), who conducted autopsy upon body of the deceased, categorically stated during his cross-examination that the injury which was found to be fatal, could have been a result of an accident with motorcycle. It was further submitted that the motive to commit the offence is an essential element to prove guilt in case of circumstantial evidence and the prosecution has failed to prove the same. Rather, the prosecution has come out with a story of murder by the accused on account of deceased having an illicit affair with some unidentified person. It was further contended that no investigation was carried out in this regard as the Investigating Officer Shri Ranjit Singh (PW9) admitted in his sworn testimony come across any such evidence during the course of investigation. He, thus, tried to convince the Court with all vehemence at his command to allow the appeal, set aside the impugned judgment and acquit the appellant. 10. Per contra, the learned Public Prosecutor has opposed the submissions advanced by the learned counsel for the appellant and supported the judgment dated 28.05.2016. It was contended that the learned trial Court has, after due appreciation of evidence on record, recorded conviction of the appellant and the findings of the learned trial Court are based on cogent material on record warranting no interference by this Court under its appellate jurisdiction. 11. We have considered the rival submissions advanced by the respective counsel at Bar and have threadbare re-appreciated the evidence available on record. 12. Vajeram (PW2) being the informant of Ex.P/7 the written report dated 07.07.2012, deposed that the deceased Smt. Hansi was married to the appellant and was having two sons and two daughters out of the wedlock. It was stated that the accusedappellant was suspicious of his wife being indulged in an illicit relationship. He alleged that the appellant murdered his wife by inflicting an axe blow and he had seen the injuries on the head and neck of the deceased. During the course of his crossexamination, he stated that he was unaware as to on whom the accused-appellant was having the suspicion regarding illicit relationship of his sister Hansi. When suggested, he has admitted that there was an injury on backside of neck of the deceased. During the course of his crossexamination, he stated that he was unaware as to on whom the accused-appellant was having the suspicion regarding illicit relationship of his sister Hansi. When suggested, he has admitted that there was an injury on backside of neck of the deceased. He refuted the defence suggestion that his sister died by being run over by a vehicle. 13. Shambhoo Lal (PW1) proved the following important documents, viz: (i) Ex.P/1, the site inspection plan (ii) Ex.P/2, the seizure memo of blood-stained damar (iii) Ex.P/3, the Inquest Memo (iv) Ex.P/4, Seizure Memo of blood-stained portion of the Saree of the deceased (v) Ex.P/5, Recovery Memo of axe and blood-stained shirt of the accused (vi) Ex.P/6, Site-plan of recovery of axe and blood-stained shirt of the accused. 14. We have noticed that during the course of his crossexamination the defence has neither challenged the recovery memos nor he was suggested regarding presence of any sharpedged stone or other object at the place of alleged accident which could have caused the incised wound suffered by the deceased on backside of her neck. 15. Veerji (PW3) stated that when he saw the body of the deceased, she was having a mark of an axe-blow behind on her neck. Heeralal (PW4) brother of the deceased, stated that his sister was married to the appellant about 15-20 years ago and they were having four children. He stated that when he saw her body, she was having a wound on the backside of her neck. This prosecution witness was declared hostile but he admitted during his cross-examination by the Public Prosecutor that he had gone to appellant's house. Shri Kalulal (PW5) is the photographer, who has taken photographs of the body of the deceased. 16. Pw6 and PW8, viz. Mangilal and Banshilal respectively, are formal witnesses. PW7 Nathulal is the witness to the recovery memos Ex.P/4 and Ex.P/5 as well as to the recovery site-plan (Ex.P/6). 17. Doctor Rajeev Ameta (PW10), who conducted postmortem examination upon the body of the deceased, proved the Postmortem Report Ex.P/26 and stated that cause of death of Smt. Hansi was on account of injury on her neck. He agreed to a general suggestion of the defence during his cross-examination that the village roads contain sharp-edged stones. He also accepted the defence suggestion that such injury was possible from an accident with a motorcycle. 18. He agreed to a general suggestion of the defence during his cross-examination that the village roads contain sharp-edged stones. He also accepted the defence suggestion that such injury was possible from an accident with a motorcycle. 18. The Investigating Officer Shri Ranjit Singh appeared in the witness-box as PW9 and deposed that he recorded the statements of prosecution witnesses as stated by them and also prepared various documents during investigation. As already stated, he stated during his cross-examination that he did not come across any evidence of the deceased having any illicit relationship. He was suggested during his cross-examination that the axe recovered from appellant's house could be found normally in all rural home to which he agreed. 19. Besides the aforesaid oral evidence, we find that the prosecution has established the recovery of the weapon of offence, i.e. the axe vide recovery memo Ex.P/5, on the information furnished by the appellant under Section 27 of the Indian Evidence Act, 1872 (Ex.P/24). The testimony of the attesting witnesses to the recovery memo as well as the recovery site-plan (Ex.P/6), viz., PW1 Shambhoolal and PW7 Nathulal could not be impeached during the course of their cross-examination. PW7 Nathulal was suggested that the axe recovered from appellant's house could belong to his father. As has been observed earlier as well, the Investing Officer Ranjit Singh (PW9) was suggested during his cross-examination that when he went to recover the axe from appellant's house that it was bolted but not having any lock. As per FSL Report (Ex.C/1) dated 23.07.2012, human blood of 'B' group was found on the blood-stained soil, Damar, piece of Saree of the deceased worn by her at the time of the incident, the axe as well as shirt of the appellant. When subjected to examination under Section 313 Cr.P.C. by this Court on 29.07.2019, no explanation was offered on this aspect by the appellant-accused. 20. Having scanned entire evidence available on record, we are of the considered opinion that the prosecution has been able to prove the case against the accused-appellant by leading trustworthy and convincing evidence which goes to prove guilt of the appellant beyond any manner of doubt. From the evidence on record the following facts are undisputed:- 1. The deceased was the wife of the appellant and they were residing together in a house, 2. From the evidence on record the following facts are undisputed:- 1. The deceased was the wife of the appellant and they were residing together in a house, 2. Body of the deceased was found lying on a cot in house of the appellant, 3. The appellant was found besides the body of the deceased, 4. The deceased was having incised wound on her neck at skull and neck-joint which was the cause of her death; thus, it is clearly established that the death was unnatural. 5. The FIR lodged by the appellant was not found substantiated after investigation. 6. The appellant did not furnish any explanation as to how the body of the deceased was shifted to the house from the alleged place of the so called accident without the knowledge of anyone else. 21. In the aforesaid circumstances, the burden would definitely shift on the accused to offer an explanation as to under what circumstances the death of his wife took place and the dead body of his wife with fatal incised wound was found lying on a cot inside the house, when the spouses recorded together. The defence has tried to develop a story as is evident from the written report (Ex.P/20 dated 06.07.2012) and the suggestions made to the various prosecution witnesses during the course of their crossexamination that the deceased expired on account of injuries received by her in a road accident on 05.07.2012 at 8:30 PM by a motorcycle. However, this story has too many loop-holes so warranting its rejection. First of all, we are of the firm view that the nature of the injury found on the body of the deceased which proved fatal, was not possible to have caused in the ordinary course of nature if the deceased was hit by motorcycle as it is an incised wound on the neck. There is total lack of evidence to substantiate the defence plea that the alleged place of accident had any sharp-edged stones or objects and rather, the evidence on record is contrary to the same as it was a damar road with a smooth surface. 22. Although the defence has taken a plea that Dr. There is total lack of evidence to substantiate the defence plea that the alleged place of accident had any sharp-edged stones or objects and rather, the evidence on record is contrary to the same as it was a damar road with a smooth surface. 22. Although the defence has taken a plea that Dr. Rajeev Ameta PW10 has admitted that such injury was possible on account of motorcycle accident yet a closer perusal of his crossexamination reveals that he has made a very general and bald statement that the village roads have sharp-edged stones. No such suggestion that the road in question that is the place of incident was having sharp-edged stones, was made either to PW1 Shambhoolal, who was attesting witness to the site-plan Ex.P/1; or to the Investigating Officer (PW9). A perusal of the site-plan Ex.P/1 clearly reveals that it was an even surfaced Damar road on which the accident is alleged to have taken place by the defence thus ruling out any possibility of incised wound on the neck of deceased on account of the road accident. 23. We have also noticed that although the defence is silent as to whether motor-cycle hit the deceased from front or from behind still, since the wound is on her neck, safely assuming the deceased having been hit from front, the theory of accident is ruled out in view of specific evidence of the deceased having no other injuries on any of her other body areas. Rather, the prosecution witness Vajeram PW2 has been suggested during the course of his cross-examination that there was no mark on back of the deceased except insignificant injuries in the shape of a lacerated wound measuring 3 x 2 x 1 cm and a bruise of the dimensions of 3 x 3 cm, both on her right elbow. He has further been suggested that no mark of injury was visible on her back in the photographs. This fact stands corroborated from a perusal of the photographs Ex.P/9 to Ex.P/16. The appellant has offered no explanation when he was subjected to examination under Section 313 Cr.P.C. as to how body of the deceased was found lying on a cot in his house with incised wound on her neck when allegedly, she received the injuries on a road. This fact stands corroborated from a perusal of the photographs Ex.P/9 to Ex.P/16. The appellant has offered no explanation when he was subjected to examination under Section 313 Cr.P.C. as to how body of the deceased was found lying on a cot in his house with incised wound on her neck when allegedly, she received the injuries on a road. The accused made no effort to state on explain as to how the body was shifted to his house. Moreover, as per defence version the accident is alleged to have taken place on 05.07.2012, whereas it was reported to police 06.07.2012. Therefore, the defence version as to the road accident being cause of death of the deceased is totally ruled out. 24. In the backdrop of the abovementioned facts and on appreciation of the evidence on record, we have arrived at the only logical and possible conclusion that prosecution has duly succeeded in discharging its obligatory burden to prove the significant incriminating circumstances against accused proving his guilt and at the same time, the appellant has failed to discharge the reverse burden of proof cast upon him vide Section 106 of the Indian Evidence Act, 1872 for raising a presumption of guilt against him. A perusal of the judgment impugned dated 28.05.2016 reveals that the learned trial Court has recorded conviction of the appellant after carefully examining and appreciating the cogent material on record and the same does not suffer from any infirmity, perversity or illegality warranting interference by this Court. 25. As a result thereof, the appeal fails and is hereby dismissed being devoid of merit. 26. Record be returned to the trial Court fourthwith.