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2023 DIGILAW 351 (RAJ)

Pramod Kumar v. State of Rajasthan, Through PP

2023-01-31

PANKAJ BHANDARI, SAMEER JAIN

body2023
ORDER Sameer Jain, J. - The present criminal appeal has been filed under Section 374(2) of Cr.P.C. against the judgment and order of conviction dated 11.03.2015 passed by the Additional Sessions Judge No. 2, Jhunjhunu in Sessions Case No. 01/2013 (152/2013) whereby the appellant was convicted and sentenced for offence under Section 302 of IPC to life imprisonment along with fine of Rs. 5,000/- and in default thereof, to undergo additional simple imprisonment of six months and under Section 498A of IPC to undergo two years rigorous imprisonment along with fine of Rs. 200/- and in default thereof, to suffer additional simple imprisonment for a period of two months. 2. Succinctly stated, the case of the prosecution is as follows:- (i) That on 03.08.2012, Kanhaiya Lal, father of the deceased, submitted Ex. P-1 Written Report at B.D.K Hospital, Jhunjhunu interalia alleging that on 22.12.2010, his daughter-Poonam's marriage was solemnized with the appellant. After marriage, the appellant-husband started harassing the deceased-wife for dowry and upon her inability to comply with the said demands, he subjected her to physical assault. It was further alleged that the appellant-husband even got the deceased-wife's pregnancy terminated when she was five months pregnant. (ii) That on 03.08.2012 at 7:30 AM, Shri Dhoop Chandra, elder brother of the appellant, gave telephonic information to the complainant that his daughter had died. Thereupon, the complainant accompanied by his family members went to B.D.K Hospital Jhunjhunu where they were informed that the deceased-Poonam had committed suicide. However, considering the background of the case, FIR No. 164/2012 was registered at Police Station-Bagad for offence under section(s) 498A and 304B of IPC. The above-mentioned FIR is marked as Ex. P-2. (iii) During the course of investigation, 'panchnama' of the dead body was prepared (Ex.P-3), post-mortem examination of the deceased was conducted and the corresponding 'Post-Mortem Report' was obtained (Ex.P-11), the site of the incident was inspected and the corresponding site-plan was prepared (Ex. P-7). Thereafter, on 05.08.2012, the appellant was arrested by the concerned police authorities. The arrest memo is marked as Ex. P8. Upon conclusion of the investigation, the police submitted a charge-sheet against the appellant under section(s) 498A and 302 of IPC. Subsequently, the trial commenced at the Court of Sessions. (iv) That on 02.09.2013, charges for offence under section(s) 498A and 302 of IPC were read over and explained to the appellant. The arrest memo is marked as Ex. P8. Upon conclusion of the investigation, the police submitted a charge-sheet against the appellant under section(s) 498A and 302 of IPC. Subsequently, the trial commenced at the Court of Sessions. (iv) That on 02.09.2013, charges for offence under section(s) 498A and 302 of IPC were read over and explained to the appellant. Thereafter, whilst categorically denying the said charges, the appellant prayed for a trial. The prosecution examined as many as 14 witnesses along with 24 documents as exhibits. Moreover, the explanation of the appellant was obtained under Section 313 of Cr.P.C., wherein he indubitably stated that he has been falsely implicated in the present matter and that the evidence adduced by the prosecution is entirely fabricated and untrue. The appellant further stated that the deceased-Poonam committed suicide after her extra-marital affair was exposed by one-Chandra Prabha. He also took the plea of alibi and submitted that on 02.08.2012, he was not present in the house. Moreover, he only returned upon getting information regarding his wife's demise on 03.08.2012. In this background, it is pertinent to note that 5 police statements were exhibited in the appellant's defense; while no oral evidence was adduced to prove his innocence. (v) That, after a prolonged trial, learned Sessions Judge vide judgment dated 11.03.2015, held the petitioner guilty for offence under section(s) 498A and 302 of IPC and sentenced him in the manner stated herein-above. 3. In this background, learned counsel for the appellant has submitted that the conviction of the appellant is against the facts and circumstances of the case, the material and evidence available on record and also the law applicable, hence the same is bad in law. Learned counsel submitted that the case of the prosecution is entirely based on circumstantial evidence and the prosecution has categorically failed to connect the chain of circumstances, so as to warrant the conviction of the appellant. He has submitted that initially the FIR was registered for offence under section(s) 498A and 304B of IPC. However, upon conclusion of the investigation, the said charge under section 304B of IPC was altered to Section 302. Moreover, the aforementioned FIR was filed at a belated stage as well. It was further argued that in the 'Written Report' (Ex. P-1) submitted by the father of the deceased, no specific allegation of dowry demand was levelled against the appellant. However, upon conclusion of the investigation, the said charge under section 304B of IPC was altered to Section 302. Moreover, the aforementioned FIR was filed at a belated stage as well. It was further argued that in the 'Written Report' (Ex. P-1) submitted by the father of the deceased, no specific allegation of dowry demand was levelled against the appellant. Learned counsel also submitted that there are no eye-witnesses to corroborate the allegation that the appellant had strangulated the neck of the deceased. Furthermore, learned counsel apprised the court of the fact that nothing incriminating the appellant of the alleged offence has been recovered from his possession by the investigation agencies. Moreover, there are several material contradictions in the statements tendered by the prosecution witnesses. At the same time, the prosecution has also failed to produce any independent witnesses before the Court, who are not relatives of the deceased-Poonam. Lastly, learned counsel for the appellant submitted that the appellant was not present in the house when the alleged incident had occurred. Rather, he only returned to the house upon being informed of the demise of his wife on 03.08.2012. In this background, it was submitted that the deceased-wife had committed suicide on account of the fact that her extra-marital relationship had been discovered by her aunt, Chandra Prabha, who saw her with another man inside her room. Therefore, there is a glaring gap in the chain of circumstances/story of the prosecution and a fabricated and concocted narrative has been presented before the Court to falsely implicate the appellant for the alleged offence of murder. Hence, the conviction of the appellant under section(s) 498A and 302 of IPC is wholly illegal and erroneous and deserves to quashed and set aside. 4. Per contra, learned counsel for the respondent-State has opposed the present appeal. He has submitted that the plea of alibi taken by the appellant has no base as he has categorically failed to adduce any evidence so as to establish his presence elsewhere, on the said date of the incident. Furthermore, learned counsel for the respondent-State has argued that the appellant has extensively relied upon the account of a material witness, Chandra Prabha, who had allegedly discovered the deceased-wife's extra-marital affair prior to the commission of the alleged suicide; however, learned counsel for the State has apprised the Court of the fact that Ms. Furthermore, learned counsel for the respondent-State has argued that the appellant has extensively relied upon the account of a material witness, Chandra Prabha, who had allegedly discovered the deceased-wife's extra-marital affair prior to the commission of the alleged suicide; however, learned counsel for the State has apprised the Court of the fact that Ms. Chandra Prabha was never produced by the appellant in his defense. Therefore, in this regard, an adverse inference has to be drawn against the case of the appellant. It was also submitted that upon a perusal of the injury report, several marks of injury were reflected upon the appellant's person. Lastly, learned counsel for the respondent-State submitted that the 'postmortem report' (Ex. P-11), prepared by the Medical Board, is not suggestive of suicide. Therefore, it was argued that the appellant's conviction is in consonance with the settled position of law, the evidence and materials available on record and the law applicable and therefore, it does not call for any interference of this Court. 5. We have considered the arguments advanced by learned counsel for both the sides and scanned the record of the case. 6. Upon a perusal of the record, it is observed that the author of the FIR was the father of the deceased, namely Mr. Kanhaiya Lal, who submitted that his daughter was murdered by the appellant within a short span of their marriage. In this regard, it is an admitted fact that the marriage between the deceased and the appellant was solemnized on 02.12.2010; while the date of the occurrence of the incidence is 03.08.2012. Furthermore, it is observed that the prosecution has relied upon the arrest memo of the appellant marked as (Ex. P-8), wherein there is a reflection of several injuries on the appellant's person. Moreover, the said injuries are further reflected in the medical report dated 05.08.2012, wherein it has been categorically stated that there were several bruises on both the sides of the appellant's neck. Furthermore, the 'Post Mortem Report' (Ex.P-11) prepared by the Medical Board suggests that the cause of death of the deceased-Poonam was cardio-respiratory failure due to asphyxia caused by throttling and not suicide. In simpler terms, the said finding of the Medical Board implies that there was an external pressure upon the neck of the deceased by a third party, which resulted in her death. In simpler terms, the said finding of the Medical Board implies that there was an external pressure upon the neck of the deceased by a third party, which resulted in her death. The 'Post Mortem Report' is further indicative of bruises and abrasions on different parts of the deceased's body, including bruises on the left arm along with the multiple abrasions on both the sides of the neck as well. In this regard, it is observed that the learned trial court has rightly inferred that the injuries on the appellant's person were incurred during the commission of the said offence, while the deceased-Poonam was trying to defend herself. 7. Furthermore, upon a perusal of the 'post mortem report' (Ex.P-11) read with the 'Panchnama' of the dead body (Ex. P-3), injury report of the appellant (Ex.P-9) and the S.F.S.L. report (Ex.P-14), the presence of the appellant is established on the date and site of the occurrence. In this regard, it is pertinent to note that the plea of alibi, as taken by the appellant, has not been supported by any evidence. Hence, it would be prudent to infer that the same was given as an afterthought, in order to create a defence and establish a theory of an alleged extra-marital offence of the deceased-Poonam and to further conceal his involvement in the commission of the said crime. At the same time, learned counsel for the appellant has extensively relied upon the account of one Chandra Prabha, who had allegedly discovered the deceased-Poonam's extra-marital affair prior to the commission of the alleged suicide. However, it is observed that the said witness i.e. Smt. Chandra Prabha was never produced before the Court by the appellant as part of his defense. Therefore, an adverse inference has to be drawn against the case of the appellant. It is also observed that the appellant has not produced any evidence to rebut the allegation qua the occurrence of the said incident within a short span of marriage i.e. 2 years of marriage. Furthermore, qua the defense of the appellant that no specific charge or allegation of dowry has been levelled against him in the FIR; it is observed that the FIR is not an encyclopedia which must disclose all facts and details relating to the commission of an offence. 8. Furthermore, qua the defense of the appellant that no specific charge or allegation of dowry has been levelled against him in the FIR; it is observed that the FIR is not an encyclopedia which must disclose all facts and details relating to the commission of an offence. 8. Therefore, considering the contentions put forth by the learned counsel for both the sides and considering the statements tendered by the father of the deceased (P.W.1) and Dr. Ashok Kumar (P.W. 6); the 'post-mortem report' (Ex.P-11) and the 'site-plan'(Ex.P-7); the fact that the incident occurred within the first two years of marriage; that no proof was adduced in support of the plea of alibi taken by the appellant; that the appellant did not produce a material witness, namely Smt. Chandra Prabha to support the alleged extra-marital relation of the deceased-Poonam and considering the fact that there are several injuries reflected on the appellant's person as per Ex. P-8, this Court is of the view that the order passed by the learned trial court calls for no interference of this Court. 9. In the facts of the present case, it can be said without hesitation that the proseuction has succeeded in proving the alleged offence beyond doubt by adducing cogent and trustworthy evidence and therefore, the impugned judgment and sentence dated 11.03.2015 call for no interference of this Court. 10. As a result, the present appeal is dismissed.