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Dharampal @ Kalu v/s State of Rajasthan

    D.B. Criminal Appeal No. 18 of 2012

    Decided On, 01 August 2019

    At, High Court of Rajasthan Jodhpur Bench

    By, THE HONOURABLE MR. JUSTICE SANDEEP MEHTA & THE HONOURABLE MR. JUSTICE ABHAY CHATURVEDI

    For the Appellant: R.S. Choudhary, Advocate. For the Respondent: Anil Joshi, P.P.



Judgment Text

BY THE COURT:

The instant appeal under Section 374 (2) has been preferred by the appellant Dharampal @ Kalu being aggrieved of the judgment dated 16.12.2011 passed by the learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No.16/2009, whereby he has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo additional rigorous imprisonment of one year.

Brief facts relevant and essential for disposal of the appeal are noted hereinbelow.

Complainant Ram Singh submitted a written report (Ex.P/19) to the SHO, Police Station Bhirani, District Hanumangarh at camp Mauja Chhani Badi on 06.06.2009 at 03.30 p.m. alleging inter alia that he received a telephonic call of Sant Lal S/o Budh Ram from Chhani Badi at 09.00 a.m., who told the informant that his daughter Saroj had been killed and the household articles were lying damaged. Upon receiving this information, Ram Singh alongwith his brother Tarachand and the villagers Pratap, Momanram etc. reached Chhani Badi in the afternoon at 02.00 p.m. and saw that the dead body of his daughter Saroj, aged 28 years, was lying on a cot in the Angan of Dharmpal’s house. Marks of abrasions were visible on her neck. The complainant enquired from his grand-daughter Shakuntala and neighbours, on which he found out t

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hat Saroj had been strangulated to death by Dharmpal with the aid of a rope.

On the basis of the report aforesaid, a FIR No.136/2009 (Ex.P/27) was registered at the Police Station Bhirani, District Hanumangarh for the offence under Section 302 IPC.

The investigation was undertaken by the SHO Inder Kumar (P.W.10), who conducted routine steps of investigation. He prepared the documents, viz. site inspection plan (Ex.P/20); Fard Surat Haal Lash (Ex.P/21); Panchayatnama Lash (Ex.P/22); seized and handed over the ornaments of deceased Saroj vide memorandum Ex.P/23; and recorded the statements of the relevant witnesses. The dead body was subjected to postmortem at the hands of the medical board constituted at the Government Hospital Chhani Badi, which was headed by Dr. Rajendra Bhanwariya (P.W.1). The body was then handed over to the relatives of the deceased for cremation. The accused appellant Dharmpal @ Kalu was arrested vide arrest memo Ex.P/28. He gave an information to the Investigating Officer under Section 27 of the Evidence Act, which was recorded in memorandum Ex.P/29. In furtherance of the said information, the accused got recovered the rope, which was used to strangulate the deceased, which was seized vide seizure memo Ex.P/25.

After concluding the investigation, the Investigating Officer proceeded to file a charge-sheet against the accused Dharmpal in the court of the ACJM, Bhadra for the offence under Section 302 IPC. The offence being Sessions triable, the case was committed to the Court of the Additional Sessions Judge, Bhadra for trial, where charge for the offence under Section 302 IPC was framed against the appellant, who pleaded not guilty and claimed trial. The prosecution examined 10 witnesses and exhibited 30 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the allegations appearing against him in the prosecution evidence, the accused denied the same and claimed that he had gone for doing his labour job and returned home at about 10 o’clock and after having food, he went to sleep. When he woke up in the morning, he saw that his wife had passed away. Evidence of one Ram Lal (D.W.1) was recorded in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal.

Mr. R.S. Choudhary, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The evidence of child witness Shakuntala (P.W.2) is not reliable because she was tutored by the first informant. The prosecution did not examine the other offspring of the deceased and the appellant, namely, Vinod. Shakuntala did not see the actual incident, wherein her mother, the deceased Smt. Saroj, was strangulated. Significant discrepancy appearing in her cross-examination completely discredits her evidentiary worth as a competent witness. He drew the court’s attention particularly to the answer elicited in the statement of Shakuntala to a court question (reproduced hereinbelow) and urged that the girl candidly admitted that she came to know of the death of her mother only when the nearby people raised a hue and cry and thus, the trial court committed a grave error in treating the child to be a competent witness of the incident and holding the appellant guilty on the basis of her sole testimony:

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He further urged that there was no motive for the appellant to murder his own wife. None of the prosecution witnesses alleged that the accused ever indulged in harassing or humiliating the deceased Smt. Saroj.

In support of his submissions, learned counsel for the appellant has relied upon the following judgments:

(1) Hajari Ram & Anr. [D.B. Criminal Appeal No.596/2013] decided on 26.11.2018

(2) Saddam Hussain & Anr. [D.B. Criminal Appeal No.125/2018] decided on 31.05.2019

(3) Kailash Chandra Vs. State of Rajasthan [2018]

(4) R.Cr.D. 293 (Raj.)

He vehemently and fervently contended that the impugned judgment is bad in facts as well as in law and deserves to be quashed and set aside and the accused appellant is entitled to be acquitted of the charge.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant’s counsel and urged that the fact that the appellant was present in the house on the fateful night when his wife Smt. Saroj was strangled to death is not disputed and is rather admitted by the appellant in his own statement under Section 313 CrPC. The evidence of the child witness conclusively establishes that the accused returned home in the evening after doing his labour jobs and started quarrelling with Smt. Saroj because his phone had gone missing. During the quarrel, he gave her a threat that he would kill her. Learned Public Prosecutor submitted that when the quarrel started blowing up out of proportions, the mother (deceased) asked the child to go to sleep fearing that she too would be beaten. The accused appellant and the deceased were present in the house, when she was strangled to death in the dead of the night. The child got up in the morning and tried to wake her mother up, who did not respond. At that point, the accused confessed to the child that he had strangulated her mother and had killed her. Learned Public Prosecutor also drew the court’s attention to the statement of Dr. Rajendra Bhanwariya (P.W.1), being the Chairperson of the medical board, which carried out postmortem upon the body of the deceased and issued the postmortem report Ex.P/1 opining that the cause of death of Smt. Saroj was manual strangulation. Learned Public Prosecutor, thus, submits that the evidence and circumstances available on record invariably point towards the guilt of the accused and hence, the impugned judgment deserves affirmation and the appeal should be dismissed.

We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have re-appreciated the evidence available on record. The prosecution case principally hinges on the evidence of the child witness Shakuntala (P.W.2). On going through her entire statement, we are of the view that the child has given an absolutely truthful and faithful version of the incident which she witnessed. Admittedly, there was no animosity between the appellant the deceased Smt. Saroj. As per the evidence of Shakuntala, the incident took place on a trivial matter when the accused returned home and asked for his mobile. Since the appellant did not find the mobile at the place pointed by the deceased, he became violent and started damaging the household articles. Thereafter, hurled an insinuation at his wife Smt. Saroj that he would kill her. Saroj Advised the child to go to sleep fearing that the accused, who was in a fit of rage, might harm her as well. In the morning when the child woke up, she tried to prod her mother awake, but she did not respond. At that stage, the appellant confessed before the child that he had strangled Saroj to death. In cross-examination, the defence tried to confront the child witness regarding the part of her testimony, wherein she levelled an allegation of extrajudicial confession against the appellant, but she could not be shaken in the slightest. At the end of her cross-examination, a suggestion was given to the child that she was not having the knowledge as to how her mother expired during the night. To this suggestion, the witness answered in affirmative. This part of her evidence is very vital and crucial to the case and is being reproduced hereinbelow:

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On going through these lines as appearing in the evidence of the girl and the tenor of her entire statement, it is clear that she denied the defence suggestion that her father did not make the extrajudicial confession before her. Thereafter, the witness truthfully stated that she did not know as to how her mother expired in the night time. It is relevant to note here that even in her examination-in-chief, the girl did not claim that she actually saw her father, the accused, strangulating her mother Smt. Saroj to death. Since the child had been put to bed by her mother, obviously, she must not have seen the actual incident wherein the lady was strangulated and thus, the admission of the witness that she did not know exactly as to how her mother died in the night is quite explainable. It is only when the persons collected at her house and checked the lady for signs of life and when the accused himself confessed to have killed his wife, the girl became convinced that her father had murdered her mother. This candid admission of the girl convinces us that she has given an absolutely truthful, faithful and undiluted version of the incident in her sworn testimony and her evidence is beyond reproach and worthy of credence. The reliable evidence of a truthful child witness can constitute the strongest evidence in a criminal case. The statement of Shakuntala gets strong corroboration from the evidence of Dr. Rajendra Bhanwariya (P.W.1), who being the Chairperson of the medical board conducted postmortem upon the dead body Smt. Saroj and issued the postmortem report (Ex.P/1), wherein, a clear opinion is expressed that the deceased had been manually strangulated. These facts by itself are sufficient to conclude the guilt of the accused.

In addition thereto, we are conscious of the fact that only the accused appellant, Smt. Saroj and the child Shakuntala were present in the house on the fateful night. As stated above, the accused appellant, upon being questioned under Section 313 CrPC, admitted that he was present in the house on the fateful night. Thus, in the circumstances noted above, the burden to explain as to how Smt. Saroj, wife of the appellant herein, was fatally strangulated to death in the matrimonial home in the dead of the night shifts on to the accused appellant by virtue of Section 106 of the Evidence Act. The accused did not offer any explanation whatsoever in this regard.

The defence witness Ram Lal (D.W.1) simply stated that the relations of the husband and the wife were cordial. It may be noted here that even the prosecution has not alleged that there was any strife prevailing between the appellant and the deceased. What is relevant and notable from the cross-examination of this witness is that he too stated that only Dharmpal, his wife and two children used to stay together in the house, where the incident took place. In this background, the reverse burden of proof by virtue of Section 106 of the Evidence Act would apply against the accused with full fervor.

In the case of Kailash Chandra (supra), relied upon by Mr. Choudhary, this court affirmed the judgment of the trial court and toned down the conviction of the accused appellant from the offence under Section 302 IPC to one under Section 304 Part-I IPC. The said case involved the husband causing injuries to wife after a heated altercation in a sudden fight without any premeditation. The circumstances in the case at hand are totally different. The altercation, if at all took place between the spouses, was owing to the offensive attitude of the accused appellant. The lady acted with full composure and did not react. The accused thereafter acted with extreme cruelty and strangulated his own wife in the dead of the night. Thus, the ratio of Kailash Chandra’s case does not come to the aid of the accused.

In the case of Hajari Ram (supra), the dead body of the woman was found at a distance of 10 kms. away from the Dhani and this court found that there was no reliable evidence to establish the guilt of the accused. Thus, the facts of that case are also totally distinguishable.

In the case of Saddam Hussain (supra), the entire prosecution story was based on circumstantial evidence and the court after appreciating the evidence held that the entire set of circumstances portrayed by the prosecution against the accused was doubtful. Accordingly, the facts of the above case have no application to the case at hand.

In this background, we express our satisfaction with the findings recorded by the learned trial Judge in the impugned judgment that the prosecution has proved the guilt of the accused by leading clinching, convincing and cogent evidence. The impugned judgment dated 16.12.2011 passed by the learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No.16/2009 does not suffer from any infirmity or irregularity warranting interference therein. Hence, we find no merit in the appeal, which is dismissed as such
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