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2022 DIGILAW 2827 (RAJ)

Narayan S/o Bhoorji v. State of Rajasthan

2022-11-28

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT : MEHTA, J. 1. The appellant herein has been convicted and sentenced as below vide Judgment dated 19.06.2014 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.194/2011: Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs.10,000/- 2 Months’ S.I. Section 201 IPC Section 5 Years’ R.I. Rs.2,000/- 1 Month’s S.I. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: The appellant and the deceased Smt. Nirma were married to each other about 5-6 years before the incident. Two children were born from the wedlock. The deceased had been complaining to her maternal relatives regarding strife with her husband, the appellant herein. An information was received by Keshav Lal on 09.03.2011 that his sister Nirma had been murdered. The family members reached the village of the accused where they saw the dead body of Nirma lying in the field. A Saree was tied around her neck in form of a noose. Grave injuries had been caused on her face and her teeth were dislodged. Numerous other marks of violence were noticeable on the dead body. From the field, they proceeded to the house of Nirma but no one was seen in and around the house. Clumps of hair, broken bangles and blood stains were seen all around the house, on the floor as well as on the walls. Police was informed. Keshav Lal submitted a written report (Ex.P/1) to the Police Station Garhi, District Banswara alleging that his sister had been murdered by Narayan and his relatives namely Bhoorji (father), Hui (mother), Nanu (brother), Laxmi (sister), Mani and Rama. 4. On the basis of this report, FIR No.58/2011 (Ex.P/34) came to be registered at the Police Station Garhi, District Banswara for the offences punishable under Sections 143 and 302/149 IPC and investigation was commenced. The investigating officer inspected the place where the dead body of Smt. Nirma was lying. The blood stained soil, control soil, etc. were collected from the place of incident. The dead body of Nirma was subjected to autopsy at the PHC, Garhi and the postmortem report (Ex.P/28) was procured as per which, the trachea of the victim was injured and was filled with blood. The blood stained soil, control soil, etc. were collected from the place of incident. The dead body of Nirma was subjected to autopsy at the PHC, Garhi and the postmortem report (Ex.P/28) was procured as per which, the trachea of the victim was injured and was filled with blood. A severe injury was noticed on the upper lip and mouth. 3 to 5 teeth had been dislodged. The cause of death was opined to be syncope and shock as a result of haemorrhage from the wound. The clothes of the victim were seized. The house where the victim was resided with her husband was also inspected and from there also, clumps of hair, blood stained soil and control soil were lifted. The accused appellant was arrested on 13.03.2011 vide arrest memo (Ex.P/12) and the shirt worn by him, which having blood stains, was seized vide seizure memo dated 14.03.2011 (Ex.P/8). The incriminating material, referred to supra, seized by the I.O. viz. clothes of the deceased, her hair, blood stained soil and control soil collected from the house as well as the field, the blood stained shirt of the accused, a blood stained stone recovered in furtherance of the disclosure statement made by the accused were all forwarded to the FSL for serological examination. A report (Ex.P/33) dated 13.04.2011 was received from the laboratory with a conclusion that the saree and blouse of the deceased, the blood smeared soil collected from the field, the blood stained soil collected from the house and the shirt recovered from the person of accused all tested positive for presence of 'B' Group blood. Charge-sheet was filed against the accused appellant for the offences punishable under Sections 302 and 201 IPC. As these offences were sessions triable, the case was committed to the Court of Sessions Judge, Banswara from where, it was transferred to the court of Additional Sessions Judge, Banswara for trial. Charges were framed against the appellant for the offences punishable under Sections 302 and 201 IPC. He pleaded not guilty and claimed trial. The prosecution examined 9 witnesses and exhibited 34 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution case, denied the same, claimed to be innocent and stated that he was in Gujarat at the time of the incident. He pleaded not guilty and claimed trial. The prosecution examined 9 witnesses and exhibited 34 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution case, denied the same, claimed to be innocent and stated that he was in Gujarat at the time of the incident. When he returned, he came to know about his wife’s murder and went to the police station for filing a report but he was immediately arrested and his report was not accepted. After hearing the arguments advanced by the Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the accused appellant as above. Hence this appeal. 5. Mr. Shree Kant Verma, learned counsel representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The appellant had no motive to murder his wife. The prosecution did not produce any evidence whatsoever to show that the appellant was present in the house at the time of the incident and thus, the trial court was not justified in applying the reverse burden of proof by virtue of Section 106 of the Indian Evidence Act against the appellant. Shri Verma further submitted that the recoveries made at the instance of the appellant are fabricated. It cannot be believed that the accused would continue to wear the blood stained shirt for a period of four days from the incident. He placed reliance on the Judgment in the case of Mange Ram vs. State of Rajasthan (D.B. Criminal Appeal No.1048/2017) decided on 21.12.2018 in support of his contentions and urged that the appellant is entitled to be acquitted of the charges. His alternative submission was that as the appellant did not have any motive to commit the offence, the charge deserves to be toned down from the offence under Section 302 IPC to one under Section 304 Part I or Part II IPC. 6. Learned Public Prosecutor, on the other hand, urged that the appellant was unquestionably present in the house when the incident took place. The plea regarding he having gone to Gujarat was not put to the material prosecution witnesses in cross-examination. 6. Learned Public Prosecutor, on the other hand, urged that the appellant was unquestionably present in the house when the incident took place. The plea regarding he having gone to Gujarat was not put to the material prosecution witnesses in cross-examination. The highly belated defence plea of alibi which the accused raised in the statement under Section 313 Cr.P.C. would have required to be established by leading plausible evidence. However, other than a bald statement under Section 313 Cr.P.C. that he was present in Gujarat at the time of incident, the appellant did not lead any evidence whatsoever in support of this flimsy plea of alibi. He urged that presence of 'B' Group Blood in the soil collected from the house of the appellant and the appellant’s own shirt matching with the blood group of the deceased, is a strong circumstance which conclusively points towards his guilt. On these submissions, learned Public Prosecutor submitted that the appellant’s conviction as recorded by the trial court is unassailable and thus, he sought dismissal of the appeal. 7. We have given our thoughtful consideration to the submissions advanced at bar and, have thoroughly appreciated the evidence available on record. 8. From the evidence of the first informant Keshav Lal (PW-1) brother of the deceased, it is established beyond all manner of doubt that his sister Nirma was married to the appellant about 5 years ago. The witness stated that he received information regarding his sister’s murder on 09.03.2011. He and his family members went to Nirma’s matrimonial village where they saw her dead body lying in the field with numerous marks of violence. Thereafter, they proceeded to the house where the accused and the deceased resided together and there, they saw blood stained soil, blood stained hair, broken bangles, etc. Neither Narayan nor his family members were present at the house at that time. It is true that the witness did not allege in his examination-in-chief that there was any strife between the husband and the wife but, this question was put to him in cross-examination and the witness affirmed this defence suggestion. Thus, from the statement of Keshav Lal (PW-1), it is well and truly established that Nirma was killed by means of violence. Thus, from the statement of Keshav Lal (PW-1), it is well and truly established that Nirma was killed by means of violence. It is also clear that when the witness reached the place of incident with his other family members, the dead body of Smt. Nirma was lying abandoned in the field and numerous marks of blood stains were visible in the house of the accused. Neither the accused nor his other family members were present when the witnesses reached there. The witness Jalma (PW-2) and Kailash (PW-3) also gave evidence similar to what was stated by Keshav Lal. The evidence of PW-5 Kalu Ram and PW-6 Kalpesh Joshi (Photographer) is formal in nature. Dr. Deepika (PW-7) conducted autopsy upon the dead body of Smt. Nirma on 09.03.2011 and took note of the following injuries. “The mouth and the upper lips were totally crushed. Blood had collected in the throat. The cause of death was opined to be collection of blood in throat, syncope and shock as a result of injuries caused to the victim which were antemortem in nature and could have been caused by a sharp stone.” PW-8 Tejkaran was the Carrier Constable who transmitted the article packets of the case at hand from the Police Station Garhi to the FSL, Udaipur. The witness gave cogent evidence regarding the safe keeping of the sample packets. PW-9 Bhojraj Singh, SHO, Police Station Garhi, conducted investigation of the case. He collected the blood stained soil, control soil, blood stained clothes from the place of incident. The clothes of the victim were also seized. Blood stained soil, control soil and hair lying in the house of the accused were also seized. The accused was arrested and he gave a disclosure statement (Ex.P/31) for pointing out the place of incident and for identifying the stone which he had used for causing injuries to his wife. The I.O. proceeded to recover the stone. He also seized the blood stained shirt of the accused vide seizure memo (Ex.P/8). In cross-examination, the witness admitted the defence suggestion that the house in which Narayan lived, was in two sections. In one part, Narayan lived with his wife and in the second part of the house, his parents resided with his brother. He also seized the blood stained shirt of the accused vide seizure memo (Ex.P/8). In cross-examination, the witness admitted the defence suggestion that the house in which Narayan lived, was in two sections. In one part, Narayan lived with his wife and in the second part of the house, his parents resided with his brother. From the evidence of this witness, it becomes clear that he conducted investigation in a fair manner and collected the incriminating material as stated above during the course of investigation. This witness was the first of the prosecution witnesses to whom the defence gave a suggestion that Narayn was not available at the place of incident and had gone to Gujarat. The I.O. also gave evidence regarding deposit of the incriminating articles in the Maalkhana and the forwarding thereof to the FSL. The FSL report was proved as Ex.P/33 which establishes that the saree, blouse, hair of the deceased, blood smeared soil collected from the field, blood smeared soil collected from the house of the accused and the shirt of the accused, all gave positive test for presence of 'B' Group Blood. It may be stated here that other than a bald assertion made by the accused in his statement under Section 313 Cr.P.C. that he was present in Gujarat at the time of the incident, he did not offer any explanation as to how his wife, the deceased Nirma was caused the gruesome injuries leading to her death. It is true that there is no eye witness of the incident but the fact remains that in the natural course of events, there was no occasion whatsoever for the accused to have absconded from his village after his wife was found murdered. The presence of 'B' Group blood on the shirt worn by the accused which is same as the blood group of the deceased and the presence of 'B' Group blood in the soil recovered from the house of the accused, is a gravely incriminating circumstance which well and truly establishes that the accused indulged in violence and caused injuries to his wife inside his house. 9. The defence of alibi was taken by the accused in his statement under Section 313 Cr.P.C. at a highly belated stage and was not proved by any plausible evidence. 9. The defence of alibi was taken by the accused in his statement under Section 313 Cr.P.C. at a highly belated stage and was not proved by any plausible evidence. The defence claims that the accused went to the police station for reporting his wife’s murder but this assertion was not supported by any documentary or oral evidence. The circumstances in the case of Mange Ram (supra) relied upon by learned counsel Shri Verma, are totally distinguishable because in that case, the defence gave a pertinent suggestion to the star prosecution witness, being the mother of the deceased, who admitted that the accused was not present in the house at the time of the incident. In the present case, no such suggestion was given by the defence to the first informant Keshav Lal (PW-1) brother of the deceased. 10. Upon an overall appreciation of the evidence available on record, we are of the view that the prosecution has led convincing and cogent circumstantial evidence to show that the victim Nirma was murdered in the house where she resided with her husband and the dead body was then shifted to the adjoining field and was found in abundance. Presence of 'B' Group blood on the soil inside the house and the shirt worn by the accused at the time of his arrest, are gravely incriminating circumstances which establish a complete live link connecting the accused with the murder of his wife. For the sake of repetition, it may be mentioned here that the bald and flimsy plea of alibi taken by the accused was neither proved and nor the same is convincing. 11. The appellant failed to explain the circumstances under which his wife received the gruesome fatal injuries in their residential premises. These facts were exclusively in the knowledge of the accused. As a consequence, we are of the firm view that the trial court was perfectly justified in drawing adverse inference against the accused by virtue of reverse burden of proof provided under Section 106 of the Indian Evidence Act and convicting and sentencing him as above. The impugned Judgment dated 19.06.2014 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.194/2011 does not suffer from any infirmity or illegality whatsoever warranting interference therein. 12. Hence the appeal fails and is hereby dismissed as being devoid of merit. 13. Record be returned to the trial court.