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2020 DIGILAW 143 (RAJ)

Salim Mohammed v. State of Rajasthan

2020-01-16

ABHAY CHATURVEDI, SANDEEP MEHTA

body2020
JUDGMENT : Sandeep Mehta, J. 1. The appellant herein has been convicted and sentenced as below vide judgment dated 18.10.2016 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Bhilwara in Sessions Case No. 66/2010:- Offences Conviction for offence under Sections Fine amount Default Sentences Under Section 302 IPC Life Imprisonment Rs. 5,000/- Six Months' Additional R.I. Under Section 201 IPC 3 Years' R.I. Rs. 2,000/- One month's R.I. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved by his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Though, the appellant had preferred a represented appeal but later on, his counsel pleaded no instructions whereupon, the appellant was summoned from prison and in his presence, Shri Deepak Menaria, Advocate was appointed as Amicus Curiae to argue the appeal on his behalf by order dated 26.07.2019. A copy of the paper book was provided to Shri Menaria. 4. The prosecution case emanates from the written report (Ex. P-45) submitted by Jagdish (P.W. 8), brother of the deceased Lali, to the SHO, PS Sadar, Bhilwara at the mortuary of MGH, Bhilwara alleging inter alia that his sister Lali was married to one Devi Lal, resident of Swaroopganj in her childhood. She gave birth to two daughters and a son from her wedlock with Devi Lal. Later on, she developed an illicit affair with the accused-appellant Salim Mohammed who used to reside nearby her matrimonial home. Salim's family members tried to dissuade both of them from continuing the illicit affair, however, they did not relent and Lali started living with Salim. The informant alleged that he came to know that some quarrel had taken place between Salim and Lali whereafter, Salim had killed his sister and had thrown her dead body in a well. Sonu, the three-year old daughter of Lali had also gone missing and he suspected that Salim might have murdered her as well. On the basis of the report aforesaid, an FIR No. 176/2010 (Ex. P-66) was registered at the Police Station Sadar, Bhilwara and investigation was commenced. 5. It may be stated here that the dead body of a child had been recovered by Shri Narendra, SHO, PS Hamirgarh (P.W. 38) on 03.07.2010 from the well of one Sohan Lal Mohnot. On the basis of the report aforesaid, an FIR No. 176/2010 (Ex. P-66) was registered at the Police Station Sadar, Bhilwara and investigation was commenced. 5. It may be stated here that the dead body of a child had been recovered by Shri Narendra, SHO, PS Hamirgarh (P.W. 38) on 03.07.2010 from the well of one Sohan Lal Mohnot. As the body could not be identified, the same was subjected to postmortem at the Community Health Center, Hamirgarh and a postmortem report (Ex. P-56) was prepared, as per which, the cause of death of the child was opined to be asphyxia due to drowning. The time since death was opined to be about 6 to 7 days earlier to the recovery. 6. P.W. 39 Krishna Gopal Singh was posted as ASI in the Police Station Sadar, Bhilwara. On 06.07.2010, he received a telephonic information that a dead body was floating in the well of Bharat Singh near the Guwaradi river. On this, he reached the said place and saw the nude dead body of a woman floating in the well. A 'chuuni' like cloth was tied on the abdomen and noose like rope was tied on the neck of the dead body. The villagers could not identify the woman. The dead body was taken out and was kept in the mortuary, Bhilwara for identification. Intimation was sent to the various SHOs and was also published in the newspapers so that the body could be identified. Later on, Jagdish, brother of Lali came to the hospital and identified the dead body of his sister Lali. 7. When the dead body of Lali was taken out of the well, it was having a ligature tied around her neck. It may be mentioned here that the Missing Person Report had already been filed at the Police Station Sadar, Bhilwara regarding the sudden disappearance of Lali and her child and thus Jagdish, brother of Lali was called and he identified the adult female dead body to be of his sister. The dead body of Smt. Lali was subjected to postmortem at the MGH, Bhilwara from where, a postmortem report (Ex. P-57) was procured as per which, marks of violence were noticed on the dead body and the cause of death of Smt. Lali was opined to be asphyxia by strangulation. The dead body of Smt. Lali was subjected to postmortem at the MGH, Bhilwara from where, a postmortem report (Ex. P-57) was procured as per which, marks of violence were noticed on the dead body and the cause of death of Smt. Lali was opined to be asphyxia by strangulation. The time of death was opined to be 7 to 10 days prior to the postmortem examination. 8. The accused-appellant was arrested. During interrogation, the accused-appellant admitted that he was having an extramarital affair with Smt. Lali for about last 5 to 7 years. Both of them stayed together in different rented premises. The members of the appellant's family started bearing an ill-will with him owing to his illicit affair with Lali and thus, he hatched a design of eliminating her. Smt. Lali got burnt on 23.06.2010 on which, the appellant got her admitted at the MGH Bhilwara wherefrom, she was discharged on 26.06.2010. Thereafter, she insisted that she should be dropped off to the village Swaroopganj. Salim took the Van on rent from Raju (P.W. 17) and drove Lali and her child Sonu towards Hamirgarh station. At about 8 o'clock, he asked Lali to get down on the pretext that they would go to some 'Devra'. He persuaded Lali to come out; forcibly took out the drawstring of Lali's salwar and strangulated her with the same and killed her at the spot. To ensure that nobody could identify the dead body, the accused removed the clothes of Lali and threw her dead body in Bharat Singh's well. Thereafter, he throttled the child Sonu as well and threw the body in another well located at the outskirts of Swaroopganj Village. The accused gave an information to the Investigating Officer under Section 27 of the Evidence Act which was recorded in memorandum (Ex. P-67) and acting in furtherance thereof, he took the Investigating Officer to a mango tree, where the clothes of the deceased Smt. Lali were found concealed in a gunny bag. These clothes were seized vide Ex. P-26. The clothes of Sonu were recovered and seized vide seizure memo (Ex. P-50) in furtherance of an information (vide Memorandum Ex. P-65-A) provided by the accused to the Investigating Officer, under Section 27 of the Evidence Act. After concluding investigation, the Investigating Officer, proceeded to file a charge sheet against the accused for the offences under Sections 302 and 201 IPC. P-50) in furtherance of an information (vide Memorandum Ex. P-65-A) provided by the accused to the Investigating Officer, under Section 27 of the Evidence Act. After concluding investigation, the Investigating Officer, proceeded to file a charge sheet against the accused for the offences under Sections 302 and 201 IPC. As the offence under Section 302 IPC was exclusively Sessions triable, the case was committed and transferred to the Court of learned Additional Sessions Judge, Women Atrocities Cases, Bhilwara for trial. Charges were framed against the accused for the above offences, who pleaded not guilty and claimed trial. The prosecution examined as many as 41 witnesses and exhibited 74 documents to prove its case. When questioned under Section 313 Cr.P.C. and upon being confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. Four documents were exhibited, but no oral evidence was led in defence. After hearing the arguments advanced by the prosecution and the defence counsel and appreciating the evidence available on record, the trial Court proceeded to convict and sentence the accused-appellant as above. Hence this appeal. 9. Shri Menaria learned amicus curiae urged that there is hardly any evidence worth the name on the record of the case to connect the appellant with the alleged murders of Smt. Lali and her child Sonu. The prosecution failed to prove the existence of any relationship whatsoever between the appellant and Smt. Lali. The entire prosecution case is based on flimsy, unbelievable and scattered links of circumstantial evidence. The police did not involve independent witnesses while effecting the alleged incriminating recoveries. The best witness who could have unfolded the prosecution allegations regarding the appellant having been seen in the company of the deceased was Raju Mohd. (P.W. 17), the owner of the Van, who did not support the prosecution story. He urged that the evidence led by the prosecution so as to bring home the charges against the appellant is totally conjectural and unconvincing and does not lead to the unexceptional inference regarding guilt of the accused. Hence, he implored the Court to quash and set aside the impugned judgment and acquit the accused-appellant. 10. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. Hence, he implored the Court to quash and set aside the impugned judgment and acquit the accused-appellant. 10. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He pointed out that there is ample evidence on the record of the case to establish that the appellant was involved in an extra marital affair with Smt. Lali for the previous 5 years. In this regard, he drew the Court's attention to the evidence of the first informant Jagdish Chandra (P.W. 8), brother of the deceased Smt. Lali, Devi Lal (P.W. 20) (her husband) and Smt. Paani Devi (P.W. 27), Ladu (P.W. 35) and Gopal (P.W. 36); being the owners of the houses who had given their respective premises to the appellant on rent. He urged that all these witnesses have duly proved the fact that the appellant used to live with the deceased Smt. Lali and her child Sonu. They often used to quarrel with each other. Learned Public Prosecutor heavily relied upon the evidence of Dr. Kailash Chandra (P.W. 41), who, while being posted as a Senior Specialist Surgery at the MGH, Bhilwara treated Smt. Lali who had been admitted in burn Unit-A at MGH Bhilwara on 23.06.2010 for the treatment of her burn injuries. After being provided treatment, the victim was discharged from the hospital on 26.06.2010. Salim Mohammed, posing as her husband took responsibility of the woman and then got her discharged. Learned Public Prosecutor pointed out that the appellant signed the Bed Head Ticket (Ex. P-72) wherein it is clearly recorded that Lali and Salim were spouses. These signatures were appended while getting Smt. Lali discharged from the hospital. After Smt. Lali had been discharged from the hospital neither she nor her child were seen alive. The dead body of the child Sonu was recovered from the well of one Sohan Lal Mohnot (P.W. 11) on 03.07.2010 (Ex. P-46) whereas, the dead body of Smt. Lali, who had been strangulated to death, was recovered from the well of Bharat Singh (Ex. P-1). The bodies were subjected to postmortem and the time of death noted in the postmortem reports coincides with the date on which, Smt. Lali was got discharged from the hospital where she was being treated by Dr. Kailash Chandra (P.W. 41). P-1). The bodies were subjected to postmortem and the time of death noted in the postmortem reports coincides with the date on which, Smt. Lali was got discharged from the hospital where she was being treated by Dr. Kailash Chandra (P.W. 41). He urged that the clothes of the deceased Smt. Lali were recovered from a mango tree growing in the field of the accused appellant on 07.07.2010 vide Seizure Memo Ex. P-26 acting in furtherance of the information provided by the accused-appellant to the Investigating Officer under Section 27 of the Evidence Act. He thus, urged that there is ample circumstantial evidence on the record of the case so as to connect the appellant with the offences alleged and hence, the trial Court was perfectly justified in convicting him by the impugned judgment. The incriminating links were thoroughly proved so as to establish the existence of an un-breached chain of circumstances pointing invariably towards the guilt of the accused. He thus, sought dismissal of the appeal. 11. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record. 12. On going through the evidence of the first informant Jagdish (P.W. 8) being brother of the deceased, it is established beyond all manner of doubt that Smt. Lali was involved in an extramarital live-in relationship with the appellant Salim Mohammed. The evidence of Smt. Panni Devi (P.W. 27) and Gopal (P.W. 36) is natural and convincing. These witnesses stated that the accused stayed on rent in their respective houses for some duration and that during this period, both used to fight viciously with each other viciously. 13. Dr. Kailash Chandra (P.W. 41) being a Senior Surgeon at the MGH Bhilwara duly proved in his evidence that Smt. Lali was brought to the Emergency Ward of the hospital with burn injuries and was admitted in Unit-A, Bed No. 6. She was provided treatment and was discharged on 26.06.2010. Her husband noted on the bed head ticket that he was responsible for her well being. 14. We have compared the signatures appended on the Bed Head Ticket (Ex. P-72) with the admitted signatures of the appellant appended on various other documents available on record and find that all the signatures are absolutely identical. Her husband noted on the bed head ticket that he was responsible for her well being. 14. We have compared the signatures appended on the Bed Head Ticket (Ex. P-72) with the admitted signatures of the appellant appended on various other documents available on record and find that all the signatures are absolutely identical. Even the accused-appellant, did not dispute his signatures on the discharge ticket (Ex. P-72) when he was questioned and confronted with the document in his statement under Section 313 Cr.P.C. Thus, it is duly proved that the accused got the deceased Smt. Lali discharged from the hospital on 26.06.2010 after assuring the hospital staff that he would ensure her well being. 15. The dead body of the child Sonu (daughter of Smt. Lali) was recovered from the well of Sohan Lal Mohnot on 03.07.2010 by Narendra (P.W. 38), SHO, PS Hamirgarh. Krishna Gopal (P.W. 39) proved the requisite steps of investigation including the recovery of dead body of Smt. Lali from a well on 06.07.2010 and the recovery of her clothes effected at the instance of the accused-appellant. As per the postmortem report (Ex. P-56) of the child Sonu, she was suspected to have drowned to death. The time of death was mentioned in the report as 6 to 7 days earlier. The postmortem report was proved by Dr. Gopal Rajora (P.W. 22). The dead body of Smt. Lali which recovered by Shyami Lal (P.W. 40) from the well of Bharat Singh, was subjected to postmortem at the MGH Bhilwara. Dr. Gyan Maheshwari (P.W. 23) proved the postmortem report (Ex. P-57) opining that Smt. Lali expired 7 to 10 days before the postmortem was conducted and that the cause of death was strangulation. Numerous other injuries were noticed on the dead body of Smt. Lali. 16. Thus, it is amply proved from the cogent and convincing evidence led by the prosecution that the accused-appellant was having an illicit affair with Smt. Lali and that they lived together in various rented premises. They had a child Sonu aged 3 years. They used to quarrel with each other which fact was stated by two landlords Smt. Panni Devi (P.W. 27) and Gopal (P.W. 36). They had a child Sonu aged 3 years. They used to quarrel with each other which fact was stated by two landlords Smt. Panni Devi (P.W. 27) and Gopal (P.W. 36). Smt. Lali was got admitted by the appellant herein to the MGH Bhilwara burn ward on 23.06.2010 with burn injuries and he got her discharged on 26.06.2010 and thereafter, neither Smt. Lali nor her child Sonu were seen alive. 17. Ex-facie, I am of the opinion that the allegation of the prosecution that the clothes of deceased Lali were recovered in furtherance of the information provided by the accused under Section 27 of the Evidence Act is not convincing because it is unbelievable that the accused who had the opportunity to destroy it, would keep the worthless articles secure so that they could be recovered later. In addition thereto, none of the prosecution witnesses including Jagdish, brother of the deceased was made to identify the clothes as being of Lali. 18. In the backdrop of the above factual scenario, we are of the firm opinion that the responsibility of ensuring the well being of Smt. Lali and her child Sonu was that of the appellant. The appellant did not convey the fact of Smt. Lali and her child Sonu having gone missing either to her relatives nor did he file any report to the police which gives a strong indication about his guilty mental state. The evidence of Dr. Kailash Chandra (P.W. 41) and the bed head ticket (Ex. P-72) signed by the accused-appellant are sufficient to conclude that Smt. Lali was lastly seen alive in the appellant's company and thereafter, the dead bodies of Smt. Lali and her child Sonu were recovered from different wells. 19. The death of both the victims was homicidal. The appellant offered no explanation whatsoever when he was questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence. Thus, we are duly satisfied that the prosecution has proved beyond all manner of doubt, the complete un-breached chain of the incriminating circumstances existing against the accused-appellant which invariably and unexceptionally points towards his guilt and is inconsistent with his innocence or the guilt of anyone else. 20. Thus, we are duly satisfied that the prosecution has proved beyond all manner of doubt, the complete un-breached chain of the incriminating circumstances existing against the accused-appellant which invariably and unexceptionally points towards his guilt and is inconsistent with his innocence or the guilt of anyone else. 20. In wake of the above discussion, we are of the firm opinion that the trial court was perfectly justified in convicting and sentencing the appellant as above by the impugned judgment dated 18.10.2016 which does not suffer from any illegality or infirmity whatsoever warranting interference. 21. Hence, the instant appeal fails and is hereby dismissed. 22. Since, the appellant was provided services of a free legal aid counsel and as we have dismissed his appeal, we hereby direct that copy of this judgment shall be forthwith transmitted to the appellant at the Central Jail, Ajmer. The Rajasthan State Legal Service Authority shall provide assistance/legal aid to the appellant-convict for filing of further appeal before the Hon'ble Supreme Court, if he so desires. 23. Record of the trial court be returned forthwith.