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2019 DIGILAW 427 (RAJ)

Sunita v. State of Rajasthan Through PP

2019-02-06

G.R. MOOLCHANDANI, MUNISHWAR NATH BHANDARI

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JUDGMENT : 1. By this criminal appeal, a challenge is made to the judgment dated 21.10.2016, passed by Additional Sessions Judge, Kotputali, District Jaipur, in Session Case No.4/2012 whereby the accused-appellants have been convicted for offence u/s 302, 120B and 201 IPC and sentenced as under:- U/s 302 IPC Life imprisonment with fine of Rs. 2500/- in case of default in payment of fine, to further undergo 4 months simple imprisonment. U/s 120B IPC 10 years rigorous imprisonment with fine of Rs. 2500/-, in case of default in payment of fine, to further undergo three months simple imprisonment. U/s 201 IPC 3 years rigorous imprisonment with fine of Rs. 2000/- in case of default in payment of fine, to undergo two months simple imprisonment. 2. All the sentences were ordered to run concurrently. It is a case where police registered FIR on a written report given by complainant Rohitash. It was stated that three months prior to the occurrence, accused Dinesh went to his brother's residence at around 11 PM. When his brother Pappu could know it, he made a noise and thereupon Dinesh was caught. The family members of Dinesh were called. The accused Dinesh sought excuse and accordingly he was made free. 3. Accused-Dinesh and complainant's Bhabi Sunita were having illicit relation and, for that reason, on 13.12.2010, at around 11 AM, Dinesh again came at the residence of his brother Pappu. Dinesh gave ten rupees note to Pappu's son to go out to purchase biscuit and, thereupon, accused-Dinesh and Sunita pressed Pappu to consume liquor. It is, thereupon, he was strangulated with use of a rope. 4. The police caused investigation and filed charge sheet for the offence for which FIR was registered. The trial court, thereupon, framed charges for the offence u/s 302, 120B and 201 IPC and explained it to the accused. They denied charges thus trial commenced. The prosecution produced fourteen witnesses apart from nineteen documents to prove their case while statements of accused were recorded u/s 313 Cr.P.C. They produced one witness and one document in defence. The trial court convicted the accused for the offence u/s 302, 120B and 201 IPC finding the evidence against them beyond doubt. The order of the trial court has been challenged by the accused-appellants. 5. The trial court convicted the accused for the offence u/s 302, 120B and 201 IPC finding the evidence against them beyond doubt. The order of the trial court has been challenged by the accused-appellants. 5. Learned counsel for the accused-appellants submits that in a case of suicide committed by deceased Pappu, the accused-appellants were implicated out of revenge otherwise there was no reason for the complainant party not to lodge FIR on the day of occurrence but one day after the postmortem report. It was lodged at the instance of the Investigating Officer PW-14 Hemraj Singh. If the accused-appellants were having illicit relations and caused the occurrence, then report for it should have been given on the day of occurrence itself i.e. on 13.12.2011 and not with the delay of one day. The delay in lodging the FIR was used for false implication of the appellants. The aforesaid issue has been ignored by the trial court. The report was not given immediately for the reason that complainant was knowing about the occurrence out of suicide. 6. It is also stated that in the FIR as well as court statement, it is stated that accused-Dinesh came at the residence of the deceased and gave ten rupees note to his son to send him out. The son was not examined by the prosecution to prove last seen thereby, benefits of it should have been given to the accused-appellants but trial court ignored the aforesaid aspect also. 7. It is also stated that the police has failed to take finger print on the rope and bring other material evidence to connect accused with the crime. In absence of evidence, the benefit should have been given to the accused. The prayer is, accordingly, to acquit the accused-appellants as otherwise no motive could be shown against accused-Dinesh and, accordingly, order of the trial court may be set aside. 8. Learned Public Prosecutor has opposed the arguments raised by learned Amicus Curiae. It stated that prosecution could produced evidence to prove its case beyond doubt and, accordingly, contested the arguments raised by the learned Amicus Curiae. It would be described while considering the arguments of learned counsel for the appellants and, accordingly, we are appreciating the evidence led by the parties so as the judgment of the trial court. 9. The police registered FIR Ex.P-7 on a written report of complainant Rohitash vide Ex.P-6. It would be described while considering the arguments of learned counsel for the appellants and, accordingly, we are appreciating the evidence led by the parties so as the judgment of the trial court. 9. The police registered FIR Ex.P-7 on a written report of complainant Rohitash vide Ex.P-6. The allegations against the accused were not only of illicit relations but, for that, to cause occurrence where deceased Pappu died. 10. The prosecution produced PW-1 Hanuman to prove its case. He stated that his elder son Pappu was married to accused Sunita. She was having illicit relations with accused-Dinesh and occurrence was caused out of their relation. The said witness has proved illicit relations of the accused though in the cross examination, it was admitted that nobody informed him about the illicit relations and further that he had not seen the accused in compromising position. 11. Pw-2 Beerbal has proved "Panchayatnama" of the deceased (Ex.P-1), site plan Ex.P-2 and Ex.P-3 recovery of a rope. He has corroborated the statement of PW-1 in regard to illicit relations between the accused-appellants. It was stated that Dinesh and Sunita was asked not to remain in illicit relations. In the cross examination, it is also stated that Dinesh was caught few months back at the residence of Sunita and was made free when he assured not to visit Sunita, that too, in the presence of his family members. On 13.12.2011, he had seen Dinesh going from deceased's house and thereupon shout of co-accused Sunita about the suicide by her husband Pappu. The said witness was extensively cross examined but his statement-in-chief could not be demolished, rather, he has made statement to prove the prosecution case. 12. Pw-3 Ram Singh Meena has also given corroborative evidence. It is not only about the illicit relations of Dinesh and Sunita but the previous incident when Dinesh was caught by Pappu and was made free only when he assured not to meet co-accused Sunita again. He has also corroborated the incident of 12.9.2011 and 13.9.2011. 13. Pw-4 Kailash Meena has also given corroborative evidence. He has not only proved illicit relations between Dinesh and Sunita but the previous incident when Dinesh was caught and assured not to visit Sunita's house. It was in the presence of his family members. The said witness was also cross examined but his testimony could not be demolished. 13. Pw-4 Kailash Meena has also given corroborative evidence. He has not only proved illicit relations between Dinesh and Sunita but the previous incident when Dinesh was caught and assured not to visit Sunita's house. It was in the presence of his family members. The said witness was also cross examined but his testimony could not be demolished. The witness has also proved the incident of 13.9.2011. 14. Pw-5 Doctor Ganshyam Gehlot was examined by the prosecution. He conducted postmortem of the deceased. The said witness has described injuries to the injured and cause of death apart from duration of the death. The first injury was ligature mark round the neck. The other two injuries were on different parts of the body. The statement of PW-5 Dr. Ghanshyam Gehlot has been corroborated by other members of the Medical Board, PW-7-Doctor Surendra Kumar and PW-8-Doctor Jai Bhagwan Yadav. The witnesses to the postmortem were cross examined extensively. The accused failed to prove it to be a case of suicide. The injuries on the neck could not have been out of suicide. The said witnesses have described other injuries to the deceased. PW-7-Dr. Surendra Kumar and PW-8-Dr. Jai Bhagwan Yadav have corroborated the statement of PW-5-Dr. Ghanshyam Gehlot. PW-9 Prahlad has also proved illicit relation of Sunita and Dinesh. He had seen both of them together and even corroborated the story over the incident took place three months prior to the occurrence. Dinesh was caught with Sunita and, thereupon, his relatives were called and in their presence, he assured not to visit Sunita again. 15. The said witness has stated about the relation a day prior to the occurrence. It is stated that in the night at around 9-10 PM, Sunita and Dinesh were seen together. On the day of occurrence, Dinesh was seen running out of deceased residence. The said witness was cross examined. He has stated that he resides in front of Pappu's house. The said witness thus made statement to corroborate the statement of other witnesses. PW-11 Dataram is witness to the recovery so as PW-12 Suman. 16. Pw-14 Hemraj Singh caused investigation and proved not only the documents produced by the prosecution but his statement corroborates the evidence of other witnesses. The witness, however, admitted in the cross examination that finger print on the rope was not taken. 17. PW-11 Dataram is witness to the recovery so as PW-12 Suman. 16. Pw-14 Hemraj Singh caused investigation and proved not only the documents produced by the prosecution but his statement corroborates the evidence of other witnesses. The witness, however, admitted in the cross examination that finger print on the rope was not taken. 17. The statements of accused were recorded u/s 313 Cr.P.C. Accused Sunita could not explain as to why report was not made by her if her husband committed suicide and otherwise her conduct has also been seen by the trial court. Section 106 of the Indian Evidence Act applies to the facts of the case. The occurrence took place at the residence of Pappu where availability of Sunita on the day of occurrence has not been disputed. Sunita's broken bangles were found on the floor and site plan was prepared by the police Ex.P-2. It can be in a case where occurrence is caused in the manner described by the prosecution. The other accused Dinesh is also silent in his statement under section 313 Cr.P.C. The witness, in defence, could not prove innocence of the accused for which the prosecution could bring evidence to prove its case beyond doubt. 18. Learned counsel has referred it to a case of suicide. The ante mortem injury on the neck is ligature mark on whole of the neck. It does not take place in the case of suicide but can be in a case of homicide. In case of hanging, the ligature mark comes in "U" shape and would not be on the back side of neck, whereas, in the postmortem report, the ligature mark has been shown on the whole of the neck. Accordingly, the defence taken by the appellants cannot be accepted. It is moreso when PW-5 Doctor Ghanshyam Gehlot, PW-7 Doctor Surendra Kumar and PW-8 Doctor Jai Bhagwan Yadav, Members of the Medical Board have extensively cross examined in reference to the injuries to the deceased. Thus we cannot accept it to be a case of suicide. Learned counsel for the appellants has submitted that deceased's son, at the age of 10 years, was not produced though he was witness for the last seen. 19. We find that the prosecution could produce witness of last seen and, in those circumstances, non production of one witness does not affect the prosecution case. Learned counsel for the appellants has submitted that deceased's son, at the age of 10 years, was not produced though he was witness for the last seen. 19. We find that the prosecution could produce witness of last seen and, in those circumstances, non production of one witness does not affect the prosecution case. As per section 134 of the Indian Evidence Act, the number of witnesses are not material. The case of the prosecution can be proved even by one witness. Thus non production of child witness does not affect the prosecution case. 20. We find it to be a case where motive was available with accused as they were having illicit relations and, for that, accused-appellant Dinesh was caught three months back. It is to overcome from that difficulty that both the accused conspired and caused the occurrence. They asked the deceased Pappu to consume liquor. The consumption of liquor is proved from FSL report Ex.P19. The facts aforesaid were mentioned in the FIR and have been stated by the witnesses. After consumption of liquor, the accused tried to strangulate the deceased and in the process, he died. To save themselves, they tried to hange the deceased and, in that process, deceased received injuries which were proved by PW-5 Doctor Ghanshyam Gehlot, PW-7 Doctor Surendra Kumar and PW8 Doctor Jai Bhagwan Yadav. Thus even conduct of the accused-appellants is coming and has been proved by the prosecution. They tried to suppress the evidence and accordingly trial court convicted the accused for the offence u/s 201 IPC also. The delay in FIR has been explained and not fatal in this case. 21. In view of the discussion made above, we do not find any substance in any of the arguments raised by learned Amicus Curiae so as to interfere in the finding recorded by the trial court. In view of the above, the appeal fails and is hereby dismissed.