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2020 DIGILAW 436 (RAJ)

Mangi Lal v. State of Rajasthan

2020-02-28

ABHAY CHATURVEDI, SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - The appellants herein have been convicted and sentenced as below vide the judgment dated 10.10.2013 passed by learned Sessions Judge, Udaipur, in Sessions Case No.116/2011: Offence Under Section Imprisonment Fine Sentence in default of fine 302/34 IPC Life Imprisonment Rs.50,000/- 6 months' SI 341 IPC 1 month's S.I. Rs.500/- 7 days' SI Both the sentences were ordered to run concurrently. 2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the instant appeal is enumerated below: Devi Lal (PW.14) lodged a written report (Ex.P/32) to the SHO PS Ogana, District Udaipur on 25.03.2011 at 07:45 am alleging inter alia that on the previous night, his father Partha S/o Nola Katara R/o Upreta had come to his house on the occasion of Rangpanchami. While his father was returning home after having had dinner, the informant heard the cries of Mare-Mare coming towards from the house of Mangi Lal. The informant recognized the voice to be of his father, upon which, he and Badami Lal rushed towards the source of the noise and saw that his father was being assaulted by Mangi Lal S/o Hamera, his wife Sakudi and his son Dhuli Ram, resident of Upreta and they were pulling him towards their house. Shri Partha was dragged into the shed inside Dhuli Ram's house. The informant and his companion requested them to refrain from the assault but these persons threatened them with dire consequences and started pelting stones towards them on which, the informant and his companion became frightened and went back their house. The incident took place at about 11 O' clock in the night. His father did not return till the next morning upon which, the informant went and found out that his father had been murdered by the accused and the dead body was lying in their Dhaliya (Shed). He further alleged that his father had been done to death because of a land dispute. On the basis of the report aforesaid, an FIR No.34/2011 (Ex.P/33) was lodged at the Police Station Ogana for the offence under Section 302/34 of the IPC. Investigation was commenced. Shri Sumer Singh, SHO PS Ogana (PW.13) alongwith police team reached the place of incident and conducted spot inspection. On the basis of the report aforesaid, an FIR No.34/2011 (Ex.P/33) was lodged at the Police Station Ogana for the offence under Section 302/34 of the IPC. Investigation was commenced. Shri Sumer Singh, SHO PS Ogana (PW.13) alongwith police team reached the place of incident and conducted spot inspection. The dead body of Shri Partha, which was lying in the courtyard of the house of the accused Dhuli Ram was got subjected to postmortem whereafter the same was handed over to the family members for cremation. The clothes of the deceased were seized. Panchnama of the dead body was prepared.The accused Mangi Lal, Dhuli Ram and Sakudi were arrested vide arrest memos Ex.P/26, Ex.P/27 and Ex.P/28. Requisite procedure of investigation viz. recoveries etc. was completed. The Investigating Officer Sumer Singh (PW.13) collected verification certificate (Ex.P/29) from the Sarpanch regarding the ownership and possession of the house in question and thereafter a charge-sheet came to be filed against the three accused named in the FIR for the offences under Sections 302, 341/34 IPC. Since the offence was exclusively triable by the Sessions Court, the case was committed and transferred to the court of Additional Sessions Judge No.1, (Fast Track), Udaipur for trial where charges for offences under Sections 341 and 302/34 IPC were framed against the accused persons who pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses and exhibited 37 documents in support of its case whereafter the case was transferred to the court of Sessions Judge, Udaipur for continuing the proceedings. The learned Sessions Judge recorded the statements of the accused appellants under Section 313 Cr.P.C. and confronted them with the circumstances appearing in the prosecution evidence. The accused-appellants denied the same and claimed to be innocent. However, no evidence was led in defence. After hearing the arguments advanced by learned Public Prosecutor and the learned defence counsel and appreciating the evidence available on record, the learned Sessions Judge proceeded to convict and sentence the appellants as above, whereas the accused Sakudi was acquitted by giving her the benefit of doubt. Hence this appeal. 4. Shri Shaitan Singh Bargujar, Advocate representing the appellants vehemently and fervently contended that the entire prosecution case is false and fabricated. The conduct of the so-called eyewitness, first informant Devi Lal (PW.14) is highly unnatural and suspicious. Hence this appeal. 4. Shri Shaitan Singh Bargujar, Advocate representing the appellants vehemently and fervently contended that the entire prosecution case is false and fabricated. The conduct of the so-called eyewitness, first informant Devi Lal (PW.14) is highly unnatural and suspicious. The witness admitted that even after seeing the accused assaulting his father the deceased Partha, he took no steps whatsoever to save him from the clutches of the accused and instead casually went to sleep. He contended that Devi Lal was having the facility of a mobile phone and thus, he could easily have contacted the police but instead of doing so, the witness casually went to sleep which clearly establishes that he was not any eyewitness of the incident, contrary to what was claimed by him in his testimony. Shri Shaitan Singh further submitted that the IO Sumer Singh (PW.13) did not collect any significant evidence to establish that the premises from where the dead body of Partha was recovered was exclusively owned by the accused or was in their possession. He urged that Badami Lal (PW.1), the witness allegedly present with Devi Lal (PW.14) at the time of the alleged incident did not support the prosecution case and was declared hostile. He thus urged that the prosecution failed to discharge the obligation cast upon it to prove the offences beyond all manner of doubt and hence, the accused deserve to be acquitted while giving them the benefit of doubt. In support of his contentions, Shri Shaitan Singh relied upon the judgment rendered in the case of Bhanwar Lal & Anr. vs State of Rajasthan,2018 1 CJ(Cri)(Raj) 132. On these grounds, learned counsel Shri Shaitan Singh implored the Court to set aside the impugned judgment and acquit the accused-appellants of the charges. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Bargujar and contended that the conduct of the first informant and the other prosecution witnesses is absolutely natural and their evidence is trustworthy. He point out that the parties hail from an Aadiwasi background. 5. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Bargujar and contended that the conduct of the first informant and the other prosecution witnesses is absolutely natural and their evidence is trustworthy. He point out that the parties hail from an Aadiwasi background. The incident took place in the late hours at a remote village where there is limited accessibility to means of transport and communication and as such, it could not be expected of the complainant to have approached the police in the dead of the night, more particularly when he had been threatened by the accused party of dire consequences. He further contended that the dead body of Partha was recovered from inside the house of the accused. The IO Sumer Singh (PW.13) duly verified that the possession and ownership of the house from where the dead body was recovered was that of the accused and as such, by virtue of Section 106 of the Evidence Act, the accused persons were under the burden to explain, as to how, the dead body of Partha came to be in their house with significant number of injuries. He further contended that the failure of the accused in offering any explanation in this regard invites drawing of adverse inference and under these circumstances, the trial court was justified in holding guilty, convicting and sentencing the appellants of the charges. On these grounds, the learned public prosecutor implored the Court to affirm the conviction of the appellants and dismiss the appeal. 6. 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. 7. The FIR (Ex.P/33) was lodged by the informant Devi Lal (PW.14), wherein he clearly alleged that his father had come to his house for dinner on the occasion of Rangpanchami and while he was going back after having taken food, his fervent cries were heard coming from the way towards the house of the accused. It has to be kept in mind that the accused as well as the complainant party hail from an Aadiwasi background and the village where the incident took place is remotely located. On a perusal of the FIR (Ex.P/33), it is clear that the place of incident is at a distance of 16 Kms from the police station. It has to be kept in mind that the accused as well as the complainant party hail from an Aadiwasi background and the village where the incident took place is remotely located. On a perusal of the FIR (Ex.P/33), it is clear that the place of incident is at a distance of 16 Kms from the police station. As the incident took place in the dead of the night at about 11 O' clock, the complainant would have no means of approaching the police station at that point of time and hence, there was no delay whatsoever in lodging of the report. Thus, we have no hesitation in holding that the FIR was lodged without any significant delay. The complainant categorically clearly alleged in his report that the deceased Shri Partha was dragged into the Dhaliya (Courtyard) of the house of the accused where the appellants and Smt. Sakudi and her son Dhuli Ram were seen brutally assaulting him. True it is, that the natural human conduct required that the complainant should have immediately tried to approach the authorities etc. but considering the fact that means of transportation are not easy to find in the remote Aadiwasi areas of Udaipur, possibility of the complainant could have reached the police station or any other authority in the night time was bleak. Devi Lal (PW.14) stated in his crossexamination that he raised a hue and cry pleading that somebody should come to save his father but nobody came around to rescue his father. The witness gave an explanation that the neighbourhood area is occupied by the accused and their family members and thus, nobody came around to intervene in the night-time. Thus, possibility of the complainant having been in a position to take any action to save his father or to report the matter to the authorities was non-existent in the night time. In cross-examination, Devi Lal (PW.14) categorically stated that he approached Shankarlal Sarpanch and told him of the incident at about 1:00 am in the night time itself. Shankarlal, Sarpanch (PW.11) was examined by the prosecution but unfortunately he did not support the prosecution case and was declared hostile but that by itself could not discredit the evidentiary worth of the complainant's evidence which we find to be a sterling worth as the witness could not be shaken in cross-examination. Shankarlal, Sarpanch (PW.11) was examined by the prosecution but unfortunately he did not support the prosecution case and was declared hostile but that by itself could not discredit the evidentiary worth of the complainant's evidence which we find to be a sterling worth as the witness could not be shaken in cross-examination. Shri Bargujar, Advocate tried to draw much water from the fact that the IO Sumer Singh (PW.13) admitted in his cross-examination that the house of Devi Lal is at a distance of about 1 Km from the place of incident. In this regard, it may be noted here that the suggestion, if any on this contradiction ought to have been given by the defence to the witness Devi Lal himself, who would have been in better position to explain the same. The contention of Shri Shaitan Singh that Badami Lal (PW.1), the so-called eyewitness did not support the prosecution case and was declared hostile and therefore, the entire prosecution case should be discarded; is also untenable for the simple reason that it is the quality and not the quantity of the witnesses which matters in a criminal case. If the evidence of the sole eyewitness is found to be convincing, then there would be no requirement to seek corroboration thereof from any other source. In the present case, in addition to the fact that Devi Lal (PW.14) had no occasion to falsely implicate the accused persons, the very significant admitted fact is that the dead body of Shri Partha was found lying in a semi naked condition inside the house of accused give rise to a strong inference regrding inculpability of the accused in the crime. The defence has given a suggestion to the IO Sumer Singh (PW.13) in his cross-examination that the character of Partha was bad and that he was caught by Devi Lal, the first informant having illicit relations with his wife and thus, Devi Lal might have murdered Partha out of vengeance. Exfacie, such suggestion of the defence is totally unconvincing and farfetched. The accused did not dispute at any point of time during trial that the dead body of Shri Partha was recovered lying in semi-nude condition in their house. It does not stand to reason as to why they would allow dead body of a man planted into their premises without raising any protest whatsoever. The accused did not dispute at any point of time during trial that the dead body of Shri Partha was recovered lying in semi-nude condition in their house. It does not stand to reason as to why they would allow dead body of a man planted into their premises without raising any protest whatsoever. Therefore, the defence theory regarding Devi Lal having murdered his own father Partha over alleged illicit affairs with his wife is totally untenable and fictional. 8. We have no hesitation in holding that the evidence of the eyewitness Devi Lal (PW.14) is thoroughly convincing and establishing guilt of the accused. The defence gave a clear suggestion to Devilal that the murder was occasioned because of a property dispute. It is true that the IO Sumer Singh could not collect any documentary evidence to support this theory but it is common knowledge that in the villages the land disputes are not taken to the courts but the grudge often remains. 9. The dead body of Shri Partha was subjected to postmortem by Dr. Rajiv Kumar Ameta (PW.6) who, in his evidence, stated that ligature marks were present on the calves of the deceased. His forehead was lacerated. Bruises and abrasions were seen on the chest area. The body had started putrefying. The teeth of upper and lower jaw were broken. Ribs No.6, 7, 8 & 9 of the left side were broken. Liver was lacerated. Jaw was also broken from the right side. As per the postmortem report (Ex.P/23), the cause of death was opined to be multiple injuries which led to hemorrhage as well as hypovolemia shock caused by tearing of liver. A far-fetched suggestion was given to the medical officer that such injuries were possible to be caused if the deceased fell down from roof of a moving vehicle or from the stairs. However, we are of the firm opinion that the ligature marks noticed by the doctor could not be received in any of the fictional circumstances suggested by the defence. 10. Thus, there is no hesitation for us to hold that the death of Shri Partha was homicidal. However, we are of the firm opinion that the ligature marks noticed by the doctor could not be received in any of the fictional circumstances suggested by the defence. 10. Thus, there is no hesitation for us to hold that the death of Shri Partha was homicidal. The judgment in the case of Bhanwarlal (supra) relied upon by Shri Bargurjar, Advocate is totally distinguishable on facts because in that case, the evidence of the star prosecution eye-witnesses was discarded on the count of his silence while taking note of the fact that the incident took place in the industrial area and neither of the witnesses took any step to report the matter to the police during the course of the night when the dead body was still lying there. In the present case, the incident took place in a remote Aadiwasi village. The first informant Devi Lal (PW.14) being the son of the deceased tried to save his father but he was threatened by the accused persons. The incident took place within the precincts of the house, owned by the accused and in the dead of the night; the first informant had no opportunity/chance to either report the matter to the police authorities or to take any other steps for saving his father from the clutches of the accused persons. He went and made a complaint to the Sarpanch during the night. Therefore, we are of the firm opinion that the judgment cited by Shri Badgurjar, learned defence counsel is totally distinguishable on facts and does not come to the aid of the accused. 11. As a consequence of the above discussion, we have no hesitation in holding that the trial court was perfectly justified in placing reliance upon the evidence of the first informant Devi Lal (PW.14), which is duly corroborated by the evidence of medical officer Dr. Rajiv Kumar Ameta (PW.6) and the IO Sumer Singh (PW.13) in convicting and sentencing the appellants for the charge under Section 302/34 of the IPC. The failure of the appellants in offering explanation whatsoever regarding the circumstances in which the dead body of Partha was found in their house with such a huge number of injuries leads us to draw an inference that it was none else but the appellants who murdered the deceased Partha. The failure of the appellants in offering explanation whatsoever regarding the circumstances in which the dead body of Partha was found in their house with such a huge number of injuries leads us to draw an inference that it was none else but the appellants who murdered the deceased Partha. As a result of above discussion, we find no merit in this appeal, which is hereby rejected. 12. Record be returned to the trial court forthwith.