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2022 DIGILAW 2479 (RAJ)

Rajal Devi W/o Oma Ram v. State of Rajasthan

2022-09-20

FARJAND ALI, SANDEEP MEHTA

body2022
JUDGMENT : 1. The instant appeal has been preferred on behalf of the complainant-victim Smt. Rajal Devi challenging the legality and correctness of the judgment dated 24.12.2019 passed by the learned Additional Sessions Judge No. 6, Jodhpur Metro in Sessions Case No. 76/2018 (NCV No. 76/2018) whereby the accused-respondents have been acquitted from the charges under Section 302 read with Section 34 of the IPC. 2. Briefly stated the facts of the case are that on 05.02.2018 Rajal Devi Complainant/victim lodged an FIR No. 18/2018 (Ex.P.23) at the Police Station Mathania, Jodhpur against the accused-respondents Shravan Ram @ Rathor Ram, Raturam and Lokendra alleging inter alia that on 04.02.2018 at around 9:00-10:00 p.m. her brother Birbal Ram went to Malunga to attend a banquet held by the Nat community. The accused-respondents Rotu Ram, Neelkamal, Shravan Ram, Penpa Ram and Lokendra killed her brother by forcing him to drink liquor. She was not sure whether poison was administered in the liquor or he (Birbal Ram) died due to internal injuries inflicted to him. Thereafter, one Reshma Ram and his son Parmeshwar saw her brother Birbal Ram in an unconscious condition and he was taken to hospital for treatment. During the course of treatment, Birbal Ram passed away. The dead body of Birbal Ram was subjected to postmortem and as per the postmortem report (Ex.P.21) the cause of death was poisoning as a result of consumption of organophosphorous insecticide and alcohol associated with assault prior to death. 3. On the basis of the aforementioned report, FIR No. 18/2018 (Ex.P.23) came to be registered at the Police Station Mathania for the offences under Sections 143, 302 and 328 of the IPC and investigation commenced. After usual investigation, accused Shravan Ram @ Rathore Ram, Rotu Ram and Lokendra were arrested and a charge-sheet accusationed against them for committing the offence under Section 302 read with Section 34 of the IPC in the court of the concerned Magistrate came to be submitted. The case was committed to the court of Sessions Judge, Jodhpur Metro from where, it was transferred for trial to the court of the Additional Sessions Judge No. 6, Jodhpur Metro. The trial court framed charges against the accused-respondents for the offence under Section 302 read with Section 34 of the I.P.C. They pleaded not guilty and claimed trial. The case was committed to the court of Sessions Judge, Jodhpur Metro from where, it was transferred for trial to the court of the Additional Sessions Judge No. 6, Jodhpur Metro. The trial court framed charges against the accused-respondents for the offence under Section 302 read with Section 34 of the I.P.C. They pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and 41 documents were tendered into evidence to substantiate the charge. Two witnesses were examined in defence. Thereafter, an explanation under Section 313 Cr.P.C. was sought wherein the accused-respondents claimed the evidence to be false. After hearing the parties and appreciating the evidence available on record, the learned trial Court acquitted the accused-respondents from the charges vide judgment dated 24.12.2019. Being aggrieved by the judgment of acquittal complainant/victim Rajal Devi has preferred the instant appeal under Section 378(4) Cr.P.C. for assailing the impugned judgment. Although it ought to have been filed under the proviso of Section 372 of Cr.P.C. however, we are allowing to treat the same as an appeal of victim against acquittal. Hence this appeal. 4. At the stage of admission of the appeal with the consent of the parties, final arguments have been heard. 5. Perused the record summoned from the trial Court. Learned counsel for the appellant-complainant submits that ample evidence were available on record to prove the case of the prosecution that the Birbal Ram (deceased) was taken by the accused-respondents on a pretext to attend the community dinner but he was taken to an unknown and isolated place where he was forced to consume contaminated liquor and was beaten up by them. As a consequence thereof, the deceased succumbed to death. The accused-respondents have failed to offer any reasonable explanation regarding the evidence brought on record, however, the learned trial Judge failed to appreciate the legal and factual aspects of the matter in an apropos manner and thus erred in acquitting them. He further submits that presence of Organophosphorous compound in the FSL report fortifies the allegation levelled by the prosecution witnesses that the deceased was forced to take liquor in which poisonous substance had been mixed. He further submits that the Postmortem Report (Ex.P.21) also corroborates that adulterated liquor was given to the deceased as congestion was found in his viscera. He further submits that presence of Organophosphorous compound in the FSL report fortifies the allegation levelled by the prosecution witnesses that the deceased was forced to take liquor in which poisonous substance had been mixed. He further submits that the Postmortem Report (Ex.P.21) also corroborates that adulterated liquor was given to the deceased as congestion was found in his viscera. He further submits that initial burden to prove the allegations has been discharged by the prosecution witnesses by placing on record the fact that the deceased was taken by the accused-respondents with them. Thus, by virtue of Section 106 of the Indian Evidence Act, it was incumbent upon the accused-respondents to explain the fate which befell the victim. Certain injuries were also noticed by Dr. Imran Sheikh, PW-15 while conducting autopsy on the body of the deceased which further corroborates the story of the prosecution. He thus prayed that there was ample evidence against the accused-respondents which prove their guilt beyond the reasonable doubt, therefore, the accused-respondents deserve to be convicted for the crime they committed and be punished suitably. 6. Learned Public Prosecutor vehemently opposed the submissions advanced by the appellant’s counsel and submits that the learned trial Judge has not committed any error in passing the impugned judgment. It is submitted that important prosecution witnesses have turned hostile and the circumstantial evidence was not forming a complete chain to infer guilt of the accused-respondents, therefore, the judgment does not require any interference by this Court. 7. We have given our thoughtful consideration to the submissions advanced at bar and meticulously examined the record. 8. What is emanating from the record of the case is that though Rajal Devi PW-1, the appellant herein lodged the FIR (Ex.P.23) and levelled allegations that the accused-respondents took her brother with them on the pretext of attending a dinner held by the Society where her brother was compelled to take liquor in which some poisonous substance was already administered but as a matter of fact, she was not present at the crime scene. When she reached at the spot, she found that her brother was lying in an unconscious condition and taken to hospital, where during treatment he passed away. In her own sworn statement Smt.Rajal Devi PW-1 has not deposed that she saw the accused-respondents administering poison mixed liquor to her brother. In fact she was not present at the crime scene. When she reached at the spot, she found that her brother was lying in an unconscious condition and taken to hospital, where during treatment he passed away. In her own sworn statement Smt.Rajal Devi PW-1 has not deposed that she saw the accused-respondents administering poison mixed liquor to her brother. In fact she was not present at the crime scene. Whatever she stated in her statement may be her personal perception or she might have heard of it from other sources but she was not the witness of the fact; either of the primary fact or on any other relevant fact which may have an inextricable nexus therewith. 9. Another witness produced by the prosecution was Parmeshwar, PW-2 who stated that the accused-respondents took his maternal uncle Birbal Ram with them to attend the community dinner but he expressed ignorance as to what was given to his uncle. He went at the spot upon hearing hue and cry of people who were present there. Thus, it is evident that he was not present at the spot. Although, this witness stated that the accused-respondents assaulted his uncle Birbal Ram but admittedly, he didn’t see the incident. 10. Reshma Ram PW-3, Narangi PW-4, Oma Ram PW-5, Satish PW-6, Najira Ram PW-7, Theka Ram PW-8 and Collector Ram PW-10 were projected as witnesses of the fact in issue but all these witnesses did not support the prosecution case and were declared hostile. 11. Ramniwas PW-9 is the witness of Arrest Memo only. Likewise Teja Ram PW-11 and Bhupendra PW-13 are the motbir witnesses in whose presence site plan (Ex.P.18) was prepared. This Memo purportedly prepared to portray evidence that the accused- respondents while in custody disclosed to the Police Officers regarding place of incident where they committed murder of deceased Birbal Ram. Since the accused-respondents were in police custody and place of incident was already known to all the villagers and the police officers, therefore, in view of the statutory provisions regarding admissibility of evidence contained under Sections 25 and 26 of the Indian Evidence Act, the same is not admissible in evidence. The judgment delivered by Hon’ble the Supreme Court in the case of Vijendra vs. State of NCT Delhi, 1997 (6) SCC 171 holds field in this regard. 12. The judgment delivered by Hon’ble the Supreme Court in the case of Vijendra vs. State of NCT Delhi, 1997 (6) SCC 171 holds field in this regard. 12. Ram Lal PW-12 stated in his statement that he was posted as Constable at Police Station Mathania and accused-respondents Shravan Ram @ Rathore Ram, Setu Ram and Lokendra were arrested in his presence by Shri Manish Dev, SHO, PS Mathania and he put signatures upon arrest Memos Exs.P-14, 15 and 16 respectively. 13. Sohan Singh PW-14 stated that he was posted as Head Constable and he deposited the seized articles in the Malkhana and sent some of the articles for examination to the FSL. 14. Dr. Imran Sheikh, PW-15 stated that he was posted as Medical Jurist at the MDM Hospital, Jodhpur and he conducted autopsy and prepared Postmortem Report Ex.P.21. Ex.P.22 is the final opinion regarding cause of death. This witness further stated that he noticed seven injuries on the body of the deceased. He took, preserved and sent visceras for FSL compliance. 15. Manish Dev PW-16 is the Investigating Officer of the case who stated in evidence that he recorded statements of the witnesses, prepared some Memos and collected evidence during investigation and then charge-sheeted the accused-respondents. 16. Kirta Ram PW-17 is a Head Constable who stated that he received samples from Sahi Ram Constable and prepared the forwarding letter (Ex.P.40) and sent the same to FSL Jodhpur for examination. 17. Dr. Shewta Choudhary, PW-18 stated in her evidence that she was posted an Assistant Professor, Department of Pathology at S.N. Medical College, Jodhpur and as per her deposition, she prepared Histopathology report (Ex.P.41) according to which congestion was found in viscera viz. Liver, spleen, piece of both kidneys and heart so also found edema and congestion in lungs. The right and left coronary arteries were unremarkable. 18. Shai Ram PW-19 stated that he was posted as Constable; he was a witness of linking evidence i.e. collection of preserved material from hospital and then its deposition to the Malkhana of Police Station Mathania and received forwarding letter for bringing some of the articles for its examination to FSL, Jodhpur and pathology department. 19. 18. Shai Ram PW-19 stated that he was posted as Constable; he was a witness of linking evidence i.e. collection of preserved material from hospital and then its deposition to the Malkhana of Police Station Mathania and received forwarding letter for bringing some of the articles for its examination to FSL, Jodhpur and pathology department. 19. After completion of the prosecution evidence the accused-respondents were examined 313 Cr.P.C. in which they denied and claimed that they were falsely implicated in this case and contended that Birbal Ram was perturbed due to desertion by his wife and he used to consume local handmade liquor and the specific plea that on the fateful day of incident the deceased was not with them. 20. A careful scanning of the evidence brought on record makes it abundantly clear that there was no eye-witness of the incident regarding the assault made on the deceased or administering poisonous substance to him or forcing him to consume adulterated liquor. To that extent, the case of the prosecution hinges upon circumstantial evidence. 21. The cardinal principles for appreciation of circumstantial evidence have been propounded by Hon’ble the Supreme Court in celebrity case titled as Sharad Birdichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 wherein besides propounding the principles of appreciation of evidence; it has been held that in cases where allegation of administration of poison is made, the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction, that is to say: (1) there is a clear motive for an accused to administer poison to the deceased. (2) that the deceased died of poison said to have been administered. (3) that the accused had the poison in his possession. (4) that he had an opportunity to administer the poison to the deceased. 22. The learned trial Judge, while acquitting the accused-respondents has discussed the situation and the laches in the prosecution case while highlighting that neither poisonous substance was recovered at the instance of any of the accused-respondents nor the same was recovered from the place of incident. There is no evidence on record that wherefrom the poisonous substance was obtained. No clue or signs were found at the spot when the inspection was carried out even no bottle was recovered or seized. There is no evidence on record that wherefrom the poisonous substance was obtained. No clue or signs were found at the spot when the inspection was carried out even no bottle was recovered or seized. There is no evidence on record to identify or pinpoint the accused who allegedly procured the poison mixed with liquor and forced the deceased to consume the same. The learned trial Judge has minutely gone through the Postmortem Report (Ex.P.21) as per which certain minor bruises and abrasions were found on the body of the deceased which were neither grievous nor sufficient to cause death in the ordinary course of nature. It is appreciated that such injuries can be received upon falling on earth or while on hard touch when taking a patient into an ambulance. Indisputably, the injuries received by the deceased were not actual cause of his death. 23. It may be pointed out that the whole case rests upon the circumstantial evidence and there is no eye-witness or direct evidence against the accused persons for commission of the murder of Birbal Ram. Motive plays an important role in cases based on circumstantial evidence. Motive remains a determining factor for washing away clouds over certain facts, remove the shadow and brings clarity by establishing a logical link/relation between certain facts so committed in thrust of a desired result and thus motive is relevant fact in itself. In other words, it can be said that motive is like a gravitational force which pulls a person’s consciousness and drives him to do or omit to do a particular fact for the desired result. Motive for the commission of an offence assumes greater importance in cases based on circumstantial evidence rather than those in which direct evidence regarding commission of the offence is available. Here in the case at hand, the prosecution has utterly failed to show or establish any motive for the accused-respondents to commit the murder of the deceased. It is not in dispute that nothing incriminating was recovered/discovered at the instance of the accused-respondents which could connect them with the alleged crime. 24. Here in the case at hand, the prosecution has utterly failed to show or establish any motive for the accused-respondents to commit the murder of the deceased. It is not in dispute that nothing incriminating was recovered/discovered at the instance of the accused-respondents which could connect them with the alleged crime. 24. As it has been noticed that no evidence has been brought on record to prove the fact that the accused-respondents took the deceased with them and thereafter the deceased was forced to drink contaminated liquor as well as no witness has come forward to describe the eye-witness account of the incident. We find nothing on record which may substantiate the charge alleged against the accused-respondents and connect them with the commission of crime. 25. Thus, viewed from any angle and after thoroughly appreciating the legal and factual aspects of the matter, we are of the firm opinion that the prosecution has miserably failed to bring on record or to prove any of the incriminating circumstances. There is serious deficiency in the case of the prosecution in absence of which the finding of guilt would not be justifiable. The prosecution has been failed to prove its case against the accused-respondents beyond reasonable doubt. Thus, findings of acquittal arrived at by the learned trial Court vide impugned judgment dated 24.12.2019 passed in Sessions Case No. 76/2018 (NCV No. 76/2018) does not suffer from any illegality or infirmity which may warrant interference by this Court in appeal. The submissions made by the learned counsel for the appellant are devoid of merit. 26. Accordingly, the appeal is dismissed as being devoid of merit. 27. Record be sent back forthwith.