Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 3 (RAJ)

SUNDER LAL @ SUNDER v. STATE OF RAJASTHAN

2019-01-02

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Sandeep Mehta, J. The accused appellant Sunder Lal @ Sunder stands convicted and sentenced as below vide judgment dated 20.12.2013 passed by the learned Additional Sessions Judge (Women Atrocities) Cases, Udaipur in Sessions Case No.69/2013: Offences Sentences Fine Fine Default sentences Under Section 376 IPC 10 Years R.I. Rs.10,000/ Three months Simple Imprisonment Under Section 302 IPC Life Imprisonment Rs.10,000/ Three months Simple Imprisonment Under Section 201 IPC 5 Years Rigorous Imprisonment Rs.5,000/- 1 months Simple Imprisonment All the sentences were ordered to run concurrently. 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 appellant is an indigent person and appeal was forwarded from jail, Shri Tarun Dhaka, Advocate was appointed as amicus curiae to represent the appellant in this appeal. 4. We have heard the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and have threadbare examined the impugned judgment as well as the record. 5. The appellant is charged with alleged rape and murder of Smt. Vesudi in the night intervening 11.09.2010 and 12.09.2010 at the village Paba, Tehsil Jhadol, District Udaipur. The case originates from the written report (Ex.P/6) submitted by Udailal (brother of the deceased Smt. Vesudi) at the spot to the officer of Police Station Naai, District Udaipur on 12.09.2010. It was alleged in the report that on the previous evening, the informant's brother-in-law Vardi Chand and sister Vesudi (the deceased) called him to village Paba. Upon this, the first informant, alongwith his companion Mohandas, went to the house of Vesudi at about 6 o 'clock'. After having dinner, the first informant accompanied by his brother-in-law Vardi Chand, companion Mohandas, Sister Vesudi and Sunder (nephew of Vardi Chand), started for the house of his elder sister Rambha who also resides in Paba. All of them left the house of Vardi Chand at about 9 o 'clock'. On the way, Vesudi and Sunder were asked to return home as the children were alone at home. The first informant, Mohandas and Vardi Chand proceeded on to the house of Rambha and stayed there in the night. On returning home at about 9 o 'clock' in the morning, they came to know that Vesudi had not returned in the night. The first informant, Mohandas and Vardi Chand proceeded on to the house of Rambha and stayed there in the night. On returning home at about 9 o 'clock' in the morning, they came to know that Vesudi had not returned in the night. Inquiries were made and the first informant allegedly came to know that Sunder son of Shri Talu Bhagora, who was bearing ill-will with Vesudi, killed her and threw her body in the field of Laluji. It may be mentioned here that in this report, there is no reference of any eye witness having seen Vesudi being murdered. Be that as it may. On the basis of this report, an FIR No.169/2010 was registered at the Police Station Naai for the offences under Sections 302 and 201 IPC and investigation commenced. The deadbody of Smt. Vesudi was subjected to postmortem and after usual investigation, a charge-sheet was filed against the appellant for the offences under Sections 376, 302 and 201 IPC. As the offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Udaipur from where, it was transferred for trial to the Court of the learned Additional Sessions Judge (Women Atrocities) Cases, Udaipur. The trial court framed charges against the appellant for the offences mentioned above. The appellant pleaded not guilty and claimed trial. The prosecution examined 24 witnesses in support of its case. The accused, upon being examined under Section 313 Cr.P.C., denied the prosecution allegations and claimed that he had been falsely implicated in the case. However, no evidence was led in defence. The trial Judge, upon conclusion of proceedings, proceeded to convict and sentence the appellant as above by the impugned judgment. Hence this appeal. 6. The material pieces of evidence relied upon by the prosecution in its endeavour to bring home the charges against the appellant are summarized as below: 7. Udailal (PW-2), Vardi Chand (PW-3) being the first informant and PW-16 Mohandas were portrayed as witnesses who allegedly saw the deceased lastly in the company of the accused appellant whereafter she was not seen alive and her deadbody was recovered and evidence of these witnesses was relied upon to establish the circumstance of last seen against the accused appellant. 8. Udailal (PW-2), Vardi Chand (PW-3) being the first informant and PW-16 Mohandas were portrayed as witnesses who allegedly saw the deceased lastly in the company of the accused appellant whereafter she was not seen alive and her deadbody was recovered and evidence of these witnesses was relied upon to establish the circumstance of last seen against the accused appellant. 8. Evidence of PW-4 Sushri Rekha, PW-6 Sushri Basanti and PW-9 Sushri Sheela were examined in evidence as eye-witnesses who allegedly saw the accused appellant assaulting the deceased and that he was the murderer. 9. Pw-18 Dr. Ela Agarwal and PW-20 Dr. Anupam Johari were the medical officers who examined the body of the deceased and gave an opinion that she had been murdered by throttling after being subjected to forcible sexual assault. 10. In addition to these circumstances, the prosecution also claimed to have recovered certain articles at the instance of the accused. However, the FSL reports were neither exhibited by the prosecution nor were the same put to the accused in his statement recorded under Section 313 Cr.P.C. Otherwise also, we carefully perused the two FSL reports dated 27.09.2010 and 01.10.2010 respectively and find that conclusion of serological and chemical examination of the articles proved inconclusive. Thus, even if the FSL reports are to be taken into account, manifestly, they do not provide any incriminating circumstance against the accused appellant. 11. Shri Tarun Dhaka, Amicus Curiae representing the appellant, vehemently and fervently urged that the evidence of the witnesses of circumstance of last seen is not reliable. Their statements are self-contradictory and thus, their testimony deserves to be discarded. Regarding the statements of the so-called eye witnesses being Sushri Rekha, Sushri Basanti and Sushri Sheela, being the daughters of Smt. Vesudi (the deceased), the contention of Shri Dhaka was that these three witnesses are totally unreliable and cooked up witnesses because had they seen the incident, then without a doubt, this fact would have been mentioned in the FIR (Ex.P/27) which was lodged after the first informant had the occasion to converse with the three girls. He further submitted that all these three witnesses, admitted that they heard the shouts of their mother, on which, they went to the place of occurrence. He further submitted that all these three witnesses, admitted that they heard the shouts of their mother, on which, they went to the place of occurrence. However, drawing the Court's attention to the site inspection memo (Ex.P/1), Shri Dhaka submitted that the distance between the place of occurrence and the house of the deceased is far too long and it is impossible to believe that if anybody had shouted from such a distance, the noise could have been heard at the house of the deceased where the three witnesses were sleeping. He further submitted that all the three witnesses admitted that they visited the place of occurrence in two rounds. In the first round, they were not having any means of illumination and thus, they could not see anything. Thus, they returned home, took a torch and went back to the scene of occurrence and allegedly saw in torch light that the deceased was being assaulted by the accused appellant. Shri Dhaka urged that PW-4 Sushri Rekha, PW-6 Sushri Basanti and PW-9 Sushri Sheela admitted in their cross-examination that when they went back after collecting the torch from their house, they only saw their mother lying at the place of the occurrence and the assailant was not visible. Thus, as per Shri Dhaka, the evidence of these three witnesses cannot be relied upon to infer that the accused herein was the assailant. He thus urged that there is no evidence worth the name of record of the case so as to link the appellant with the crime and rather, the prosecution had the motive to falsely implicate the accused. In this regard, he drew the Court's attention to the statement of PW4 Sushri Rekha, who admitted that a monetary dispute was going on between her mother and Sunder and that a land dispute was also existing between them. Shri Dhaka submitted that the accused is the eldest male member of his family and after ensuring that he is sent behind bars, the complainant party has taken over the agricultural land belonging to the accused and the false charge was foisted upon the accused for this purpose alone. He thus craved acceptance of the appeal and sought acquittal of the appellant from the charges. 12. He thus craved acceptance of the appeal and sought acquittal of the appellant from the charges. 12. Per contra, Shri J.P.S. Choudhary learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Dhaka and contended that the three minor daughters of the deceased had no occasion to falsely implicate the accused appellant. They gave categoric testimony to the effect that on hearing the dispairing cries of their mother, they rushed to the place of occurrence and saw the appellant assaulting Smt. Vesudi. He further urged that the witnesses Udailal (PW-2), Vardi Chand (PW-3) and Mohandas (PW-16) gave clinching evidence of having seen the deceased lastly in the company of the accused appellant and thus, the burden of proof would shift on to the accused to explain as to how Smt. Vesudi died. Since the accused failed to discharge this burden, the prosecution is entitled to seek an adverse inference that the accused appellant and none else was the murderer. On these grounds, the learned Public Prosecutor craved dismissal of the appeal in entirety. 13. We have give our thoughtful consideration to the submissions advanced at bar and have re-appreciated the evidence led by the prosecution. 14. Manifestly, the prosecution case hinges on two sets of evidence. Whilst the witnesses Udailal (PW-2), Vardi Chand (PW3) and Mohandas (PW-16) claimed to have seen the deceased lastly in the company of the accused, the witnesses Sushri Rekha (PW-4), Sushri Basanti (PW-6) and Sushri Sheela (PW-9) claimed to be the eye witnesses of the alleged rape followed by murder. 15. Firstly, we proceed to deal with the testimony of the witnesses. The witnesses Udailal, the first informant (PW-2) and Vardi Chand (PW-3) categorically stated that they returned home on the morning next to the incident and made inquiry about Vesudi and found that she did not return in the night. Had the three girls seen their mother being assaulted and murdered by the appellant as claimed by them in their evidence then, their natural reaction and conduct would have been to immediately inform their father and maternal uncle that they had seen the accused appellant assaulting the deceased in the night time and straight off, they would have taken them to the scene of occurrence. If this fact had been divulged before the FIR was lodged then, it was bound to be mentioned in the written report (Ex.P/1). If this fact had been divulged before the FIR was lodged then, it was bound to be mentioned in the written report (Ex.P/1). However, as stated above, nothing of this sort is mentioned in the FIR and it is not claimed therein that the girls were the eye witnesses of the incident. Thus, the claim of these three girls that they saw the incident happening with their own eyes become highly doubtful. In the examination-in-chief, the claim that they heard the shouts of their mother in the night time on which, they ran towards the scene of the occurrence. While Sushri Rekha and Sushri Basanti claimed that they saw Sunder assaulting their mother by a lathi, Sushri Sheela (PW-9) simply stated that Sunder was abusing her mother. All the three girls further stated that Sunder threatened them on which they returned back home. However, a little later, they took a torch and went back to the scene of occurrence and saw in the torch light that Sunder had murdered their mother by throttling her. In cross-examination, these girls categorically admitted that when they reached the place of occurrence in the first round, they could not see anything. Basanti suggested that they should bring a torch. They went back home, collected the torch and again returned to the scene of occurrence and threw the torch light, but did not see the assailant. In cross-examination, these girls categorically admitted that when they reached the place of occurrence in the first round, they could not see anything. Basanti suggested that they should bring a torch. They went back home, collected the torch and again returned to the scene of occurrence and threw the torch light, but did not see the assailant. The relevant admissions elicited from these witnesses in their cross-examination are quoted herein below for the sake of ready reference: Sushri Rekha (PW-4) ^^;g lgh gS fd tc izFke ckj esa /kVukLFky ij xbZ rc lkFk esa VkpZ ysdj ugh xbZ FkhA ;g lgh gS fd tc ge ekSds ij x;s rc dksbZ fn[kkbZ ugh ns jgk Fkk rc clUrh us dgk fd vius ?kj ls VkpZ ysdj vkrs gSA^^ Sushri Rekha (PW-4) ^^;g lgh gS fd VkpZ dh jks'kuh esa Hkh dksbZ utj ugh vk jgk Fkk fQj ge Hkx dj /kj ij vk x;s FksA^^ Sushri Basanti (PW-6) ^^;g dguk lgh gS fd tc eEeh ds fpYykus dh vkokt vkbZ ml le; yxHkx ckjg ct pqdh FkhA fpYykus dh vkokt esjs /kj ls mRrj fn'kk dh vkSj ls vk jgh FkhA vkokt nks rhu ckj vkbZ FkhA ;g dguk lgh gS fd mlds ckn vkokt can gks x;ka ;g lgh gS fd mlds ckn ge ?kj ls jokuk gq,A------------------------------------------------------------------------------------------------;g dguk lgh gS fd ge iSny&iSny x;s fQj dksbZ ugh feyk mlds ckn ?kj tkdj VkWpZ ysdj vk;Sa ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------;g dguk lgh gS fd VkWpZ dh jks'kuh iM+h rks ns[kk fd esjh eka uhps iM+h gqbZ Fkh fQj ge jksrs gq, ?kj vk x;sA ;g dguk lgh gS fd esjh eka dks geus VkWpZ dh jks'kuh esa ns[kk ml le; esjh eka fpYyk ugh jgh FkhA^^ 16. The candid admissions made by the witnesses in their cross-examination makes it clear that they could not see anything in the first round when they allegedly went to the place of occurrence after hearing the cries and that in the light of the torch, they only saw their mother lying down on the ground. Furthermore, the conduct of the witnesses in not disclosing about the incident to their father and maternal uncle in the morning and their failure to give them a lead about the place where their mother was lying, is also sufficient to satisfy the Court that these witnesses did not see the incident happening with their own eyes and are cooked up witnesses. Thus, in our opinion, the trial court committed grave error in treating them to be reliable witnesses who saw the deceased being assaulted by the accused. 17. Once, the testimony of these three witnesses is eschewed from consideration, the only other piece of evidence which remains on record against the appellant is in form of the circumstance of last seen as deposed by the first informant PW-2 Udailal, Vardi Chand (PW-3) being the husband of the deceased and PW-16 Mohandas. All three alleged that they left the accused and the deceased in the company of each other while proceeding to the house of Rambha and that the deceased was not seen alive thereafter. Suffice it to say that the said aspersion which is portrayed by the prosecution as an alleged evidence of last seen, is too flimsy a circumstance so as to place implicit reliance thereupon for convicting the appellant for the serious offences of rape and murder. True it is that serious injuries were noticed on various parts of the body of the deceased by the medical officer Dr. Anupam Johari (PW-20) and an allegation was also levelled that the deceased was first ravished sexually and was then murdered but the fact remains that the injuries noticed by the medical officer on the private parts of the deceased were so deep that we are convinced that such injuries could not have been caused by penetrative secual assault by a human being. The doctor did not allege that the injuries could be cause by penetration of a male sexual organ. The doctor noticed that the frontal wall of vagina of the deceased woman was intact but the interior wall was found torn right upto the rectum and the depth thereof was extending up to the abdomen. The large intestine was also torn. We are of the opinion that this kind of injury could not have been caused by a simple penetrative sexual assault. Even assuming for a moment that the injuries were caused during sexual assault then as a consequence, the assailant would have definitely received injuries on his private parts looking to the extreme violent nature of the penetrating injury found in the pelvic and abdominal organs of the deceased. More likely, the injury appears to be a result of an external blow which caused deep injuries on the soft internal body parts of the deceased. More likely, the injury appears to be a result of an external blow which caused deep injuries on the soft internal body parts of the deceased. This conclusion finds corroboration from the circumstance that marks of mutilation by animal bites were also noticed by the doctor when the postmortem was conducted on the body of the deceased. Furthermore, the injuries noticed by the doctor on the neck of the deceased which indicate that C7- T1 bones were broken and the spinal cord was crushed underneath these bones rather indicate that it is a case wherein, the deceased was trampled upon by some wild animal. 18. In any event, from the statement of Udailal (PW-2), it is apparent that Smt. Vesudi was asked to return back to her home just from a nominal distance of 15 meters from her home. However, the body of Smt. Vesudi was found from her house in the opposite direction which again creates a doubt on the prosecution theory that the deceased was left behind by these three persons in the company of the accused appellant and that taking advantage of this circumstance, the accused appellant first subjected her to rape and then murdered her. The inferences sought to be drawn by the prosecution from the testimony of these three witnesses are far fetched and conjectural and the evidence of these witnesses is considered to be far too vacillating and weak so as to place implicit reliance thereupon so as to hold the appellant guilty. 19. That apart, as observed by Hon'ble the Supreme Court in the following paragraphs of the judgment rendered in the case of Anjan Kumar Sharma & Ors. vs. State of Assam reported in, (2017) AIR SC 2617, the sole circumstance of last seen together cannot form the basis of holding an accused guilty of the offence of murder. After discussing the various earlier judgments on this issue, Hon'ble the Supreme Court held as below:- “18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 this court held that: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 this court held that: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. . 15. The theory of last seen the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588.” In Arjun Marik v. State of Bihar, (1994) Supp2 SCC 372 this court held that: “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 19. This Court in Bharat v. State of M.P., (2003) 3 SCC 106 , held that the failure of the accused to offer any explanation in his statement under Section 313, Cr.P.C. alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted. 20. Mr. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted. 20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:- “It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence.” 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding 19the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case. 22. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the Appellants of the charges of Section 302, 201 read with 34 IPC. The Appellants are directed to be set at liberty forthwith, if not required in any other case. 23. The Appeal is accordingly allowed.” 20. The Appellants are directed to be set at liberty forthwith, if not required in any other case. 23. The Appeal is accordingly allowed.” 20. In view of the above discussion and since, we have held that the eye-witnesses account as deposed by the witnesses PW-4 Sushri Rekha, PW-6 Sushri Basanti and PW-9 Sushri Sheela is not reliable and, as the only remaining circumstance of last seen attributed to the appellant is also based on vacillating testimony of the witnesses Udailal (PW-2), Vardi Chand (PW-3) and PW-16 Mohandas. Seen in light of the Supreme Court Judgment referred to supra, since the sole circumstance of last seen cannot be relied upon to draw an inference of guilt against the appellant, we find it unsafe to uphold his conviction recorded by the trial court vide the impugned judgment. 21. The appeal is allowed. The impugned judgment dated 20.12.2013 passed by the learned Additional Sessions Judge (Woman Atrocity Cases), Udaipur in Sessions Case No.69/2013 is hereby quashed and set aside. The appellant Sunder Lal @ Sunder is acquitted of all the charges. The appellant is in custody. He shall be released from prison forthwith if not wanted in any other case.