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2022 DIGILAW 1594 (RAJ)

Sonia @ Sonaram S/o Hiraji v. State of Rajasthan

2022-05-17

REKHA BORANA, SANDEEP MEHTA

body2022
ORDER : 1. The appellant herein has preferred the instant appeal under Section 374(2) Cr.P.C. being aggrieved of the judgment dated 03.08.2019 passed by the learned Additional Sessions Judge No. 1, Abu Road (Jurisdiction Sirohi) in Sessions Case No. 40/2000 (CIS No. 194/2014) whereby, he has been convicted and sentenced as below: Offences Sentences Fine Fine Default Sentences Section 302 IPC Life Imprisonment Rs. 20,000/- 1 Month’s Additional Imprisonment 2. Brief facts relevant and essential for disposal of the appeal are noted herein-below: Mr. Otaram, Sub-Inspector, Police Station Abu Road City, received an information regarding a lady having been brought to the Government Hospital, Abu Road in a burnt condition. He reached the hospital at 00:45 A.M. on 05.07.1997 and recorded a Parcha Bayan (Ex.P/33) of the victim under treatment Smt. Shanta wife of Valaram, resident of Gandhinagar, Abu Road wherein, she alleged that on 4th/5th July, 1997 in the night at about 00:15 A.M. she was sleeping all alone at her house. At that time, Sonia @ Sonaram son of Hiraji Mungiya, resident of Gandhinagar, Abu Road, who was of their caste, and had 8-9 months earlier burnt her hutment, came into her house, poured kerosene on her and set fire to her clothes. Her husband was sleeping on the patio of the house. When she cried out, her husband rushed in, brought her out and doused the fire. On hearing the commotion, people from the locality collected there. Sonia @ Sonaram ran away from the place of incident immediately after setting fire to her. Sonia @ Sonaram had set her on fire with an intention to kill her. Her husband brought her to the Government Hospital in a taxi where she was undergoing treatment. The ASI Otaram, forwarded the said report to the Police Station, Abu Road City where, FIR No. 143/1997 (Ex.P/34), came to be registered for the offence punishable under Section 307 IPC and investigation was commenced. 3. Smt. Shanta Expired while undergoing treatment upon which, her dead body was subjected to autopsy at the Government Hospital, Abu Road and Postmortem Report (Ex.P/10) was issued taking note of burn injuries all over the body of the victim except for the soles of feet. Fard Surathaal Lash (Ex.P/38) was prepared which also affirmed that the entire surface area of the body of the deceased was burnt except for the soles. Fard Surathaal Lash (Ex.P/38) was prepared which also affirmed that the entire surface area of the body of the deceased was burnt except for the soles. Because of the burn injuries, the skin of the face, hands and chest had peeled off and separated. A pertinent fact is noted in this Surathaal Lash, that palms of both hands of the deceased were full of blisters. The accused appellant absconded and a charge-sheet came to be filed against him in his absence. The trial court took recourse of procedure under Section 299 Cr.P.C. and recorded statements of the witnesses in absence of the accused. However, it is significant to note that in these proceedings, statement of Otaram, Sub-Inspector, who recorded Parcha Bayan of the victim, was not recorded. Standing warrant of arrest was issued against the accused who could be apprehended on 10.04.2018 whereafter, proceedings were resumed. De novo trial was conducted by the Additional Sessions Judge No. 1, Abu Road. Charge was framed against the accused appellant for the offence punishable under Section 302 IPC. He pleaded not guilty and claimed trial. 4. The prosecution examined as many as 19 witnesses and exhibited 50 documents to prove its case. The accused upon being questioned under Section 313 Cr.P.C. denied the prosecution allegations, claimed to be innocent and craved an acquittal. It may be stated here that by that time, trial post arrest of the accused was commenced; two material witnesses pertaining to the Parcha Bayan (Ex.P/33), namely Mr. Otaram, Sub-Inspector and Dr. Shailendra Kumar had passed away and therefore, their evidence could not be recorded. The so called eye-witness Valaram (PW-6), husband of the deceased, did not support the prosecution case and was declared hostile. No other witness examined by the prosecution, gave direct evidence so as to implicate the accused appellant in the case. A summary of the prosecution evidence is noted herein-below: (i) Iqbal Mohammad (PW-1), formal witness of the Site Plan (Ex.P/1) and seizure of clothes, etc. (Ex.P/2). (ii) Prabhu (PW-2), an alleged eye-witness, who did not support the prosecution case and was declared hostile. (iii) Maithi (PW-3), an alleged eye-witness of the incident who did not support the prosecution case and was declared hostile. (iv) Ramesh Chandra (PW-4), an alleged eye-witness, who did not support the prosecution case and was declared hostile. (Ex.P/2). (ii) Prabhu (PW-2), an alleged eye-witness, who did not support the prosecution case and was declared hostile. (iii) Maithi (PW-3), an alleged eye-witness of the incident who did not support the prosecution case and was declared hostile. (iv) Ramesh Chandra (PW-4), an alleged eye-witness, who did not support the prosecution case and was declared hostile. (v) Lakharam @ Baba (PW-5), a witness of Panchnama Lash, who also did not support the prosecution case and was declared hostile. (vi) Valaram (PW-6), husband of the deceased, did not support the prosecution case and was declared hostile. (vii) Husaini Bai (PW-7), did not support the prosecution case and was declared hostile. (viii) Galba (PW-8), did not support the prosecution case and was declared hostile. (ix) Dr. Tarun Agarwal (PW-9), proved the Postmortem Report (Ex.P/10), opining that cause of death of Smt. Shanta was burn injuries. He gave clear opinion that the entire body of the victim was burnt except for the soles of the feet. (x) Mohan Singh (PW-10) and Surendra Chhabra (PW-11) clicked photographs of the dead body and the place of the incident. (xi) Dr. Raj Kumar (PW-12) was a Member of the Medical Board, which prepared the Postmortem report (Ex.P/10). (xii) Achaluram (PW-13) was posted as Sub-Inspector at the Police Station Abu Road City at the date of incident. He deposed on oath that Narpat Singh, Constable No. 505 brought the Parcha Bayan of Shanta which had been recorded by Otaram, Sub-Inspector to the police station whereupon, FIR No. 143/1997 was registered. The witness identified the signature of Otaram on the Parcha Bayan (Ex.P/33) and gave evidence regarding remaining steps of investigation. He admitted in his cross-examination that a small glass bottle of 180 ml capacity, which was being used as a chimney, was found at the spot and there was no other source of illumination in the hut, where the deceased was sleeping at the time, she was burnt. (xiii) Om Prakash (PW-14) was a constable posted at the Police Station Abu Road City. He proved arrest memo of the accused (Ex.P/47). (xiv) Bharmal (PW-15) the constable, also proved the arrest memo of the accused. (xv) Khushal Singh (PW-16), deposed on oath that because the accused Sonia @ Sonaram could not be arrested in this case, a charge-sheet was prepared against him in abscondence. He proved arrest memo of the accused (Ex.P/47). (xiv) Bharmal (PW-15) the constable, also proved the arrest memo of the accused. (xv) Khushal Singh (PW-16), deposed on oath that because the accused Sonia @ Sonaram could not be arrested in this case, a charge-sheet was prepared against him in abscondence. (xvi) Austin (PW-17), stood as motbir witness in the memorandum (Ex.P/49) of pointing out the place of incident by the accused. (xvii) Parbia (PW-18), did not support the prosecution case and denied knowing the accused. (xviii) Mithulal (PW-19), was posted as an SHO, Police Station Abu Road City in April, 2018. He proved the factum of arrest of the accused and subsequent steps of recording his information and identification of the place of incident. 5. Mr. Vikram Choudhary, learned counsel representing the appellant vehemently and fervently urged that the learned trial court committed gross error in facts as well as in law in placing reliance upon Parcha Bayan (Ex.P/33) because the said Parcha Bayan was not recorded as per law. The witnesses associated in the Parcha Bayan namely Otaram, Sub-Inspector and Dr. Shailendra Kumar were not examined at the trial and hence, the statement could not have been admitted in evidence. His further contention was that the Parcha Bayan (Ex.P/33) bears a thumb impression of the victim, which fact in itself is enough to hold that the document is a fabricated one. He drew the Court’s attention to the Postmortem report (Ex.P/10), evidence of Dr. Tarun Agarwal (PW-9) and the Fard Surathaal Lash (Ex.P/38) and urged that the entire body of the victim was burnt including her palms and thus, a well defined thumb impression, which is appended on the document (Ex.P/33), could not have been affixed by the deceased. He thus urged that the document is totally fabricated. He further submitted that no other witness of the prosecution, gave evidence against the accused appellant and hence, there is no evidence whatsoever on the record to affirm his guilt. On these grounds, he implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellant of the charges. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and the record. 7. On these grounds, he implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellant of the charges. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and the record. 7. Suffice it to say that none of the prosecution witnesses who were allegedly present at the spot including Vala Ram husband when the deceased Shanta received the burn injuries, supported the prosecution case and were declared hostile as noted above. Thus, there is no direct evidence to prove the guilt of the accused appellant in this case. 8. It is indeed true that the accused appellant absconded immediately after the incident but the mere fact of abscondence of the accused would by itself, not absolve the prosecution of its burden to prove the charges beyond all manner of doubt. Abscondence in isolation, cannot be treated to be an inculpating circumstance against the accused in a case of murder. 9. The only piece of evidence, which remains on record so as to bring home the charge against the accused, would be Parcha Bayan (Ex.P/33). At the outset, it may be stated here that Otaram, Sub-Inspector, who recorded Parcha Bayan was neither examined during the evidence recorded while the accused was absconding, nor was he examined in the proceedings which were reopened after the accused was arrested. The trial court, held that as the witness Achaluram (PW-13), proved the signature of Otaram, Sub-Inspector on the document (Ex.P/33), the same could be admitted in evidence. However, we have serious reservations on this finding recorded by the trial court. Suffice it to say, that even if Otaram, Sub-Inspector and Dr. Shailendra Kumar had been examined at the trial, the prosecution would be under an obligation to prove by proper evidence that the Parcha Bayan was recorded by following the due process of law. The victim received 100% burns in the incident and thus positive evidence would be required to satisfy the Court that she was in a fit condition mental as well as physical to give the statement. However, since neither Otaram who recorded the statement (Ex.P/33), nor Dr. Shailendra Kumar who appended the certificate of fitness on the document were examined at the trial, this mandatory requirement could not be satisfied. 10. However, since neither Otaram who recorded the statement (Ex.P/33), nor Dr. Shailendra Kumar who appended the certificate of fitness on the document were examined at the trial, this mandatory requirement could not be satisfied. 10. As has been noted above, when the postmortem was carried out on the dead body of Shanta, the Medical Board gave a clear opinion in the report (Ex.P/10) that the entire surface area of the victim’s body was burnt except for the soles of feet. Fard Surathaal Lash (Ex.P/38) also indicates that the skin of the palms was peeling off and the palms were covered by blisters. A bare perusal of the Parcha Bayan (Ex.P/33) by the naked eye, indicates that the right thumb impression of Shanta which is noted to have been appended on this Parcha Bayan is unblemished with the distinctive identifying characteristics of patterns; whorls and lines. As the entire palmar area of the victim was burnt and blisters had formed, there was no possibility whatsoever that such a distinctively clear thumb impression of the victim would have been marked on the Parcha Bayan. 11. In this background, the non-examination of Otaram, Sub-Inspector and Dr. Shailendra Kumar, assumes greater significance. It is true that these two witnesses who were the fulcrum of the prosecution case, could not be examined in evidence as the accused remained absconding for a long period of time and the witnesses passed away in the meantime but despite that, the prosecution would not be absolved of its duty to prove the case as against the accused by leading unimpeachable evidence. Abscondence of the accused may be used to draw adverse inference, this fact in isolation, cannot constitute substantive evidence required to bring home the charges. It may be noted here that this Court has already concluded that recording of the Parcha Bayan (Ex.P/33) is by itself doubtful and the appending of the thumb impression of the victim thereupon totally falsifies the veracity of the document. In addition thereto, non-examination of Mr. Otaram, Sub-Inspector and Dr. Shailendra Kumar, makes the Parcha Bayan (Ex.P/33) totally inadmissible in evidence. Once the Parcha Bayan is discarded, there remains no evidence whatsoever on the record of the case so as to bring home the charge against the accused appellant. 12. In addition thereto, non-examination of Mr. Otaram, Sub-Inspector and Dr. Shailendra Kumar, makes the Parcha Bayan (Ex.P/33) totally inadmissible in evidence. Once the Parcha Bayan is discarded, there remains no evidence whatsoever on the record of the case so as to bring home the charge against the accused appellant. 12. As a consequence of the above discussion, we are of the firm opinion that the trial court was totally unjustified in admitting and placing reliance upon the Parcha Bayan (Ex.P/33) so as to convict the accused appellant for the charge of committing murder of Smt. Shanta. The impugned judgment dated 03.08.2019 passed by the learned Additional Sessions Judge No. 1, Abu Road (Jurisdiction Sirohi) in Sessions Case No. 40/2000 (CIS No. 194/2014), does not stand to scrutiny and hence, the same is reversed. The accused appellant is acquitted of the charge. He is in prison and shall be released forthwith if not wanted in any other case. 13. However, keeping in view the provisions of Section 437A Cr.P.C. the accused appellant is directed to furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment, on receipt of notice thereof, the appellant shall appear before the Supreme Court. 14. The appeal is allowed in these terms.