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2022 DIGILAW 2118 (RAJ)

Swaimadhopur v. State of Rajasthan

2022-07-26

ANOOP KUMAR DHAND, S.S.SHINDE

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JUDGMENT Anoop Kumar Dhand, J. - The challenge in this appeal under section 374(2) Cr.P.C. is led to the judgment dated 22.8.1990 passed by the Court of learned Sessions Judge, Sawai Madhopur (for short 'the trial court'), in Sessions Case No.3/1988, by which the accused appellant has been convicted and sentenced as under:- Offence under Section Sentence Fine In default of Payment of Fine 302 IPC Life Imprisonment 200/- One month Rigorous Imprisonment 2. The period spent in the police/judicial custody has been ordered to be set-off in the original imprisonment. 3. The facts relevant and necessary for the disposal of this appeal are thus:- "PW1 Radhey Shyam (informant) submitted a written report (Ex. Pl) to the Superintendent of Police and the S.H.O., Sawai Madhopur, Police Department, alleging inter-alia that his sister Prem Devi is residing in the house of Babulal Gogoriya on rent. In the same house, Pooran Singh, Police Officer is also residing on rent along with his children. In addition to them, 2-3 tenants are also residing in the same house. On 8.5.1978 in the night at about 2:00 AM, Pooran Singh, Police Officer, forcibly attempted to commit rape with his niece Sampat Bai for which a report was given by his sister Prem Devi, which was sent to the Deputy Superintendent of Police for inquiry and in that application she submitted complete details. Today i.e. on 11.5.1978 at about 12:00-1:00 P.M. in the day, Munna, son of Pooran Singh tinkerly abused his sister Prem Devi and he also gave threatening to her a long- with her niece Sampat for committing their murder. In the intervening, he and Siraj Mohammad saved them. Thereafter at about 2:00-3:00 P.M. in the afternoon when his niece Sampat was sleeping in the room in the upper portion of the house, his niece Mina went to take water and bread (roti), then she saw that Munna came in a fast speed from the room having a bottle containing therein l/4th kerosene. After seeing the smoke inside, she cried and came to him and thereafter he went there and saw that his niece Sam pat Bai was burnt and died." 4. On the basis of the said written report (Ex.Pl), an FIR No.85/1978 (Ex.P2) was registered at Police Station Sawai Madhopur, District Sawai Madhopur, for the offence under section 302 IPC. The investigation was assigned to Mr. Shankar Bux Singh, Assistant Sub Inspector. On the basis of the said written report (Ex.Pl), an FIR No.85/1978 (Ex.P2) was registered at Police Station Sawai Madhopur, District Sawai Madhopur, for the offence under section 302 IPC. The investigation was assigned to Mr. Shankar Bux Singh, Assistant Sub Inspector. After completion of investigation, the police submitted Final Negative Report. 5. Thereafter, on 23.5.1978 complainant/informant Radhey Shyam (PW1) filed a criminal complaint in the Court of Chief Judicial Magistrate, Sawai Madhopur, with the same averments mentioned in FIR No.85/1978. Thereafter, the learned Magistrate took cognizance vide order dated 4.8.1979 against the accused appellant for the offence under section 302 IPC and against co-accused Pooran Singh for the offence under sections 302 read with section 120B IPC and section 109 IPC. Thereafter, the case was committed to the Court of Sessions, Sawai Madhopur, for trial. 6. The trial court framed charges against the accused appellant Mohan Singh for the offence under section 302 IPC and against co-accused Pooran Singh for the offence under section 302 read with section 120B IPC and in the alternative section 302 read with section 109 IPC. Both the accused pleaded not guilty and claimed trial. 7. The prosecution examined as many as seven witnesses and exhibited nine documents to prove its case. Both the accused were questioned under section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution evidence which they denied and claimed to have been falsely implicated in this case. 8. After hearing the arguments advanced by the prosecution and defence and appreciating the evidence available on the record, the trial court proceeded to convict and sentence the accused appellant as mentioned above but the co-accused Pooran Singh was acquitted from all the charges vide impugned judgment dated 22.8.1990. Hence, this criminal appeal is submitted by the appellant- Mohan Singh. 9. Learned counsel appearing for the accused appellant submitted that the entire prosecution case is false and fabricated. He further submitted that initially when the FIR was registered, a thorough investigation was done by the Police and the Police after investigation found that the deceased had committed suicide and the Police submitted the Final Negative Report in the matter. Counsel submitted that the prosecution has failed to prove the motive of the accused appellant behind the crime. He further submitted that initially when the FIR was registered, a thorough investigation was done by the Police and the Police after investigation found that the deceased had committed suicide and the Police submitted the Final Negative Report in the matter. Counsel submitted that the prosecution has failed to prove the motive of the accused appellant behind the crime. Counsel submitted that had there been any truth in the story of the prosecution then certainly the accused appellant might have sustained burn injuries. Counsel submitted that when the alleged incident occurred, the doors were closed from inside. Hence, it was not possible for the accused appellant to go inside and commit the alleged incident. Counsel submitted that the prosecution has not come with the true version of the incident and the origin and the genesis of the occurrence has been withheld by the prosecution. Counsel submitted that there is no recovery at the instance of the accused appellant. Counsel further submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused appellant. Hence, the accused appellant is entitled to get the benefit of doubt. 10. Per contra, learned Public Prosecutor assisted by the learned counsel for the complainant/informant, opposed the submissions advanced by the counsel for the accused appellant and submitted that the instant case is based on circumstantial evidence and the prosecution has proved its case beyond all reasonable doubt by producing incriminating evidence against the accused appellant. Learned Public Prosecutor submitted that the father of the accused appellant attempted to commit rape with the deceased on 8.5.1978, for which a report was given to the Deputy Superintendent of Police for inquiry. Thereafter, on 11.5.1978 at about 12:00-1:00 PM, the accused appellant, who is the son of Pooran Singh, came and abused the mother of the deceased and threatened the deceased and her mother for ending their life. Thereafter, at about 2:00-3:00 P.M., the sister of the deceased Mina (PW2) saw the accused appellant carrying a kerosene bottle in his hand coming from the room of the deceased. After seeing the smoke in the room, the deceased was found in a burnt condition. Thereafter, at about 2:00-3:00 P.M., the sister of the deceased Mina (PW2) saw the accused appellant carrying a kerosene bottle in his hand coming from the room of the deceased. After seeing the smoke in the room, the deceased was found in a burnt condition. Learned Public Prosecutor further submitted that the FIR was registered on the same day of incident i.e. on 11.5.1978 and on the very same day i.e. on 11.5.1978, the statements of PW1 Radhey Shyam, PW2 Kumari Mina and PW3 Smt. Prem Devi were recorded, in which they categorically stated that the accused appellant was seen outside the room of the deceased carrying a kerosene bottle in his hand. Learned Public Prosecutor submitted that in-spite of having so much incriminating evidence of last seen against the accused appellant, the police submitted Final Negative Report because the father of the accused appellant was a Police Officer, who influenced the entire investigation. Learned Public Prosecutor further argued that the prosecution has proved its case beyond reasonable doubt. Hence, the trial court has rightly convicted and sentenced the accused appellant. Therefore, no interference is called for by this Court in the impugned Judgment. 11. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the accused appellant, learned Public Prosecutor and the learned counsel appearing for the complainant/informant and have gone through the material available on record. 12. The case of the prosecution is based on circumstantial evidence. The case of the prosecution is that on 8.5.1978, father of the accused appellant namely; Pooran Singh entered into the house of Prem Devi with an intention to commit rape upon Sampat Bai (the deceased) and he kept a note of Rs. 10/- on her hand and wanted to rape her. When Sampat Bai cried and Prem Devi woke up, then he ran away. Pooran Singh was a Police Official and he threatened them "to face dire consequences", if they lodge any complaint. But they lodged the complaint against him on 10.5.1978 to the Superintendent of Police, Sawai Madhopur and the inquiry was handed over to the Deputy Superintendent of Police, Sawai Madhopur. Feeling annoyed by the same, son of Pooran Singh, the present appellant threatened the deceased and her sister Prem Devi and abused them by using filthy language at about 12:00-1:00 P.M. on 11.5.1978 but Siraj Mohammad intervened to save them. Feeling annoyed by the same, son of Pooran Singh, the present appellant threatened the deceased and her sister Prem Devi and abused them by using filthy language at about 12:00-1:00 P.M. on 11.5.1978 but Siraj Mohammad intervened to save them. Thereafter, the accused appellant poured kerosene upon the person of Sampat Devi at 2:00-3:00 P.M. on 11.5.1978 and lit fire due to which she died. The FIR No.85/1978 was lodged on the same day i.e. on 11.5.1978 and the statement (Ex.DI) of the last seen witness PW2- Mina Devi and other witness PW3 Prem Devi were recorded on the same day of occurrence. But the father of the accused appellant misused his position as Police Officer and influenced the investigation. Then the complainant/informant filed a criminal complaint before the Court of Chief Judicial Magistrate, Sawai Madhopur, who took cognizance against the accused appellant under section 302 IPC and against co-accused Pooran Singh under section 302 read with section 120B and under section 302 read with section 109 IPC vide order dated 4.8.1979. 13. PW1 Radhey Shyam (complainant/informant) has categorically stated in his examination-in-chief that his sister Prem Devi was residing in the rental premises of Babulal. On 8.5.1978 at about 12:00-1:00 A.M. in the night the accused Pooran Singh attempted to commit rape with his niece Sampat. He tried to give Rs. 10/- to her. When Sampat cried, his sister Prem Devi woke up and Pooran ran away. Pooran Singh threatened them that they could not take any action against him and said that But a complaint was given against him to the Superintendent of Police on 10.5.1978. On the next day, i.e. on 11.5.1978 the accused appellant Mohan Singh threatened Sampat (the deceased) and her mother Prem Devi (PW3) at about 12:00-1:00 P.M. on 11.5.1978 for killing them for lodging report. In the meantime, Siraj (PW4) intervened but the accused lit fire and burnt Sampat. After seeing the smoke, he found his niece in burnt condition. He reported the incident to the Police by lodging FIR (Ex.Pl) but the Police did not make investigation, hence, he filed a criminal complaint in the Court on 23.5.1978. This witness has further stated that the accused Mohan Singh was seen with kerosene bottle in his hand. 14. PW2 Mina has deposed that on 11.5.1978 at about 1:00-1:30 P.M., she went in the neighborhood to play leaving her sister Sampat at home. This witness has further stated that the accused Mohan Singh was seen with kerosene bottle in his hand. 14. PW2 Mina has deposed that on 11.5.1978 at about 1:00-1:30 P.M., she went in the neighborhood to play leaving her sister Sampat at home. Half an hour later when she returned to her house, she saw the accused Munna @ Mohan Singh coming out from their home carrying a kerosene bottle and match box in his hand. She saw the smoke and fire inside the doors. Accused Mohan Singh threatened her to kill her if she tells to anyone. Then she went to her uncle (Mama) Radhey Shyam and told him. This witness has further stated that one and a half hour prior to the incident also the accused Mohan Singh abused Sampat by using filthy language for the reason of lodging the complaint against his father. 15. In her cross-examination, this witness has admitted that the accused Mohan Singh was carrying the kerosene bottle and match box. 16. PW3 Smt. Prem Devi has deposed that on 8.5.1978 at about 12:00-1:00 A.M. in the night her daughter Sampat was sleeping on the roof of the house where the accused Pooran Singh came and tried to give Rs. 10/- to her. When Sampat cried and her brother Radhey Shyam (PW1) was called and complaint was given to the Superintendent of Police on 10.5.1978, then the accused threatened them and said 'dekh lunga'. Next day i.e. on 11.5.1978, fight and quarrel was done by the accused Mohan Singh with Sampat. At about 2:00 and 2:30 P.M. her daughter Mina told that Munna had lit fire to Sampat. In cross- examination, the testimony of this witness has remained unshaken. 17. PW4- Siraj Mohammad has deposed that the accused Mohan Singh was threatening Prem Devi, sister of Radhey Shyam but on his intervention, the accused went away, but in the evening he heard about the incident of burning of Sampat. 18. PW7 Babulal has deposed that on 11.5.1978, at about 1:30-2:00 P.M. in the afternoon, his sister Mina came crying and told his 'Mama' (uncle) Radhey Shyam that the accused Mohan Singh had lit fire to Sampat. They rushed and found flames. This witness has further stated that on 8.5.1978, accused Pooran Singh came after consuming liquor and caught hand of Sampat. When she cried, he flew away and later on he threatened them. 19. They rushed and found flames. This witness has further stated that on 8.5.1978, accused Pooran Singh came after consuming liquor and caught hand of Sampat. When she cried, he flew away and later on he threatened them. 19. PW5 Manak Chand has admitted that Radhey Shyam lodged the FIR (Ex.Pl) at Police Station on 11.5.1978. 20. PW6 Dr. Sikhar Chand Jain had identified the signatures of Dr. M.A. Khan, who had conducted the post mortem of the deceased Sampat and who prepared the post mortem report (Ex.P9) on 12.5.1978. 21. Perusal of the post mortem report (Ex.P9) indicates that the cause of death of the deceased Sampat was due to excessive burns and suffocation due to inhalation of Co2 and Co (Carbon Monoxide). 22. PW1 Radhey Shyam, PW2 Mina and PW3 Prem Devi have established the fact that Pooran Singh-father of the appellant was in police service and on 8.5.1978 he (Pooran Singh) forcibly attempted to commit rape with Sampat and threatened Sampat and Prem Devi not to lodge any complaint, otherwise they would face the dire consequences. Even then the complaint was submitted to the Superintendent of Police on 10.5.1978. Then on the next day i.e. on 11.5.1978 Mohan Singh quarreled with the deceased and with PW3 Prem Devi at 12:00- 1:00 P.M. and threatened them for consequences of lodging complaint and at about 2-3 P.M., PW2 Mina saw the accused Mohan Singh carrying kerosene bottle and match box outside the room of the deceased Sampat and found Sampat in burning condition. 23. It is pertinent to mention here that the report of the earlier incident dated 8.5.1978 was lodged on 10.5.1978 and the appellant Mohan Singh not only threatened Sampat and PW3 Prem Devi on 11.5.1978 at about 12:00-1:00 P.M. on 11.5.1978 but also committed murder of the deceased at 2:00-2:30 P.M. by pouring kerosene on her body. The report of the above incident was lodged on the same day i.e. on 11.5.1978 without loss of any time and immediately thereafter the police statements of other witnesses namely; PW2 Mina, PW3 Prem Devi and PW7 Babulal were recorded vide Ex.DI, Ex.D2 and Ex.D3. 24. Perusal of the statements of each and every prosecution witnesses clearly indicate that they have remained strict to their stand and there is no change or improvement in their statements. Testimony of these witnesses has remained unshaken in their cross-examination. 25. 24. Perusal of the statements of each and every prosecution witnesses clearly indicate that they have remained strict to their stand and there is no change or improvement in their statements. Testimony of these witnesses has remained unshaken in their cross-examination. 25. Thus, the medical evidence (Ex. P9-PMR) clearly indicates that the cause of death of the deceased is extensive burns and suffocation due to inhalation of CO2 and CO (Carbon Monoxide) and the same has been corroborated by ocular testimony of witnesses. Though there are some minor contradictions but the same do not affect the case of the prosecution. 26. The Hon'ble Apex Court in the case of State of Rajasthan Vs. Kashi Ram reported in 2006(12) SCC 254 , has held that once the fact of last seen is established, the accused must offer some explanation as to the circumstances in which he departed the company of the deceased. 27. This position of law, as covered under section 106 of the Indian Evidence Act, was duly considered in Satpal v. State of Haryana, reported in (2018) 6 SCC 610 , wherein the Hon'ble Apex Court has clarified that if the accused fails to offer any plausible explanation, an adverse inference can be drawn against the accused. In the instant case, the accused appellant has been unable to offer any explanation as to circumstances in which he was seen carrying a kerosene bottle with a match box outside the room of the deceased at the time of occurrence i.e. on 11.5.1978. 28. There is no force in the arguments of the counsel for the appellant that the deceased committed suicide and there was no recovery at the instance of the appellant and that's why the police submitted the Final Report Negative. There is no evidence available on the record which indicates that the deceased committed suicide. As per the prosecution case, only reason of submitting the Final Report was that the father of the appellant was Police Officer who influenced the investigation. The argument of the counsel for the appellant has no force that the door of room wherein incident had taken place was closed from inside and that the appellant has not sustained any burn injuries which would indicate his involvement in the alleged commission of offence. The evidence indicates that there were two doors and one of them was open. The argument of the counsel for the appellant has no force that the door of room wherein incident had taken place was closed from inside and that the appellant has not sustained any burn injuries which would indicate his involvement in the alleged commission of offence. The evidence indicates that there were two doors and one of them was open. The evidence on record clearly indicates that the accused has committed the offence by pouring kerosene on the person of Sampat from the bottle and setting her ablaze. 29. From the evidence available on record, the prosecution has succeeded in establishing that the accused was found with bottle of kerosene and match box in between 2:00- 2:30 PM near the room where the body of the deceased was found in burnt condition. PW-2 Kumari Mina has deposed that on 11.05.1978 at about 01:00-1:30 PM, she went to play in neighborhood and returned after half an hour and found accused Munna @ Mohan Singh coming out from the room of the deceased and he was carrying a kerosene bottle and match box and she saw smoke and flames inside the room and at that time also, accused appellant Mohan Singh threatened her to kill if she tells anyone. The death has occurred immediately due to burn injuries. Thus, the time gap between the presence of the accused and death of the deceased is so small that the possibility of any person other than accused being author of crime is completely ruled out. 30. In a case based on circumstantial evidence, the settled principles of law are that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances should be conclusive in nature and moreover the circumstances should be complete and there should be no gap left in the chain of events. However, the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence. The principle which has to be kept in mind in a case of circumstantial evidence has been laid down by a three Judge Bench of Hon'ble Apex Court in the judgment reported in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 which reads as under:- "153. The principle which has to be kept in mind in a case of circumstantial evidence has been laid down by a three Judge Bench of Hon'ble Apex Court in the judgment reported in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 which reads as under:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court Shivaji Sahabrao bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made as under: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 31. It was further followed by a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp (2) SCC 706 wherein the Hon'ble Supreme Court held as under:- "10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. 1989 Supp (2) SCC 706 wherein the Hon'ble Supreme Court held as under:- "10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra [ (1982) 2 SCC 351 ]" 32. The Hon'ble Apex Court in the case of Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh reported in AIR 2006 SC 1656 and in the case of Hatti Singh vs State Of Haryana, (Criminal Appeal No.922 of 2006, decided on 17.04.2007) has held that the last seen theory comes into play when the time gap between the point of time when the accused and deceased were last seen together and the deceased is found dead, is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. 33. In the present case, there is clinching evidence on record that the appellant was last seen on the spot where the smoke and flames were there inside the room of the deceased at about 2:00-2:30 PM on 11.05.1978. PW-2 Kumari Mina left the deceased Sampat alive at home at 01:00-01:30 PM on 11.05.1978 and when she returned after half an hour, she found the accused there with kerosene bottle and the match box at about 02:00-02:30 PM. PW-2 Kumari Mina left the deceased Sampat alive at home at 01:00-01:30 PM on 11.05.1978 and when she returned after half an hour, she found the accused there with kerosene bottle and the match box at about 02:00-02:30 PM. She saw smoke and flames inside the room. She has deposed that prior to the incident, the accused has threatened the deceased and after the incident, he threatened her. Hence, the presence of the accused appellant has been established on the scene of occurrence. At the same time, no explanation has been given by the accused appellant under Section 313 Cr.P.C. about incriminating circumstances appeared against him. 34. Taking note of the principles which have been laid down by the Hon'ble Apex Court and the circumstances which the prosecution has established in a chain of events clearly established that it is none other than the appellant who had committed the murder of the deceased Sampat Bai. The incriminating evidence of motive and last seen has been proved by the prosecution. PW1 Radhey Shyam, PW2 Mina, PW3 Prem Devi, PW4 Siraj Mohammad and PW7 Babulal, have categorically proved the linking chain of evidence and the motive of the appellant to commit murder of the deceased. 35. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime. We have also gone through the judgment of the trial court. The trial court has analysed the evidence in detail. We do not see any error in the reasonings of the trial court. 36. The findings of the guilt of the accused appellant recorded by the trial court are in consonance with the evidence on record and there is no perversity as such. Therefore, the present appeal fails. 37. In the light of above discussion, we find no merit in this appeal and the same is dismissed. 38. The sentence of the accused appellant was suspended by this Court. His bail bonds stand cancelled. The accused appellant is directed to surrender within six weeks from today and undergo the remaining part of his sentence. If he fails to surrender, action may be taken against him in accordance with law. 39. Record of the case be sent back to the learned trial court forthwith.