1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T KAILASH V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 464/2002 Under Section 374 (2), Cr.P.C.,against the Judgment dated 17-04-2002 , passed by Mr.J.D.Sharma, RHJS,the learned Additional Sessions Judge, (Fast Track), Chittorgarh, in Sessions Case No.126/2001. DATE OF JUDGMENT :::: 09-08-2007 PRESENT HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. Doongar Singh, for Appellant. Mr. J.P.S.Choudhary, Public Prosecutor. BY THE COURT: (PER HON'BLE BHANDARI, J.):- Aggrieved by the judgment of Additional District & Sessions Judge (Fast Track), Chittorgarh dated 17.04.2002 in Sessions Case No.126/2001, this appeal is being preferred by accused 2 Kailash. First Information Report was lodged by complainant Balu Ram Suhalka on 19.01.2001, in Police Station, Parsoli, stating therein that his sister Ramubai was married to Kailash r/o.Gopalpura, almost 10-12 years back. The deceased used to complain against her husband Kailash, mother-in-law and father-in-law for harassment. Almost 10-12 days back when Ramubai visited her parents at Samelia, then also, she disclosed that her husband is harassing her and said that either she would be sold to Sindhi's or be killed. Report further states that at about 8-9 a.m., some persons came in Jeep and stated that Ramubai is unwell, therefore, they have come to bring her family members. On doubt, those persons were asked about Ramu Bai time and again, then it was disclosed that she is dead. On the statement of death, complainant, his mother Chandi, brother – Mohan, Moti, Madan and other members visited village Gopalpura and when they saw Ramu Bai, came to know that she was killed by throttling. They immediately stopped her cremation. It was further stated that Ramu Bai was having swelling on her neck as well as on face, Ramu Bai was killed by her husband Kailash by throttling. Police registered the case under Sections 498-A and 302 of IPC, bearing FIR No.12/2001 and, after conducting usual investigation, challan was filed in the Court of Judicial 3 Magistrate, Begu. The case was committed to the Court of Additional Sessions Judge No.2, Chittorgarh, from where it was made over to the trial Court. The trial Court framed charges against the accused under Sections 302 and 498-A of IPC. Accused denied charges and claimed trial. During the course of trial, 22 witnesses were examined and twenty-four documents were produced by the prosecution. Statement of the accused was recorded under Section 313 of Cr.P.C. The statement of Roop Ram Singh (D.W.1) was recorded in defense and eight documents were produced in defense. The learned trial Court convicted accused Kailash under Sections 302 and 498-A of IPC. The appellant accused was sentenced to life imprisonment and penalty of Rs100/-, in default to serve one month's simple imprisonment for the offence committed under Section 302 of IPC. For offence under Section 498-A of IPC, the accused was punished with two years' simple imprisonment and penalty of Rs.100/-, in default to serve one month's simple imprisonment. Both the punishments were to run concurrently. The learned counsel appearing for the appellant raised two arguments, firstly that there exists no allegation against Kailash for killing his wife Ramu Bai. Thus, the accused has wrongly been convicted. It was further being urged that even the 4 presence of accused Kailash on the day of the occurrence could not be proved. It was submitted that on the day of occurrence, accused was away from his house. Learned counsel for the appellant has referred to the statement of PW 22 Dilip Singh to focus that even in the cross- examination, said witness had admitted that he had not asked about the presence of accused Kailash on the day of occurrence. It was thus contended that in the absence of statement of witness to attribute allegation against accused and to prove his presence, finding recorded by the trial Court cannot be sustained. Hence, learned counsel for the appellant prayed for acquittal of the accused. Per contra, learned Public Prosecutor submitted that in the First Information Report itself, clear allegations are being levelled against accused Kailash and the witnesses further proved the case of the prosecution, therefore, it is incorrect to say that allegation against accused Kailash is not being attributed. Learned Public Prosecutor further submitted that the presence of the accused at the place of occurrence is well proved from the documents as well as by the statements of the witnesses. It was submitted that other than accused and his wife deceased Ramu Bai, only accused's parents were living in the house where occurrence took place. According to the learned counsel, it is not a case where allegation exists that deceased 5 was killed by someone else and accused is falsely implicated. Learned Public Prosecutor supported the judgment of the trial Court and submitted that finding recorded is based on material available on record. Thus, it does not call for any interference. We have considered the rival submissions of the learned counsel for the parties and gone through the material available on record. The present case is based on circumstantial evidence. Thus, it is necessary to see as to whether circumstantial evidence exists to prove the guilt of accused and as to whether the accused has come out with correct explanation. As per the statement of PW 1 Balu Ram, deceased Ramu Bai was being harassed by her husband and in-laws time and again and the matter was reported by Ramu Bai on many occasions. Said witness further stated that accused Kailash threatened ramu Bai by stating that either he will kill her or she would be sold to Sindhi's. On 19th January, 2001, when a Jeep was sent to bring them, then initially, it was stated that Ramu Bai is unwell, but when her condition was asked time and again, then it was stated that she is dead. On reaching to the place,it was found that deceased Ramu Bai was having swelling on her neck and face and it was apparently coming out that she was throttled. They immediately stopped everyone for cremation and the matter was reported to the police with allegation that Kailash killed Ramu Bai. It was stated by the said witness that Kailash 6 was having relation with other girl and otherwise, he used to torture deceased Ramu Bai. In the cross-examination, said wtiness did not deviate from his statement. Same facts were repeated by PW 4 Mst.Chandi, PW 5 Pushpa and PW 6 Madan Lal. PW 13 Panna Lal stated that they had visited Kailas's residence along with members of their society, then it was found that the dead body was having finger impression on the neck and was having swelling. He further stated that all the people were saying that Kailash has killed Ramu Bai. PW 14 Sohan stated that he had also seen finger impression on the neck along with swelling. He repeated the same statement. PW 15 Dr.Niranjan Mehra stated that they had conducted post mortem of the body at 4.15 p.m. On 19.01.2001. The post mortem report was prepared by the Medical Board and the post mortem report (Ex.P-16) indicates following remarks :- “(1) Face is swollen and bluished. (2) Eyes are closed and pupils are dilated fixed. (3) Tongue protruding in B/W teeth. (4) Lips are cynosed & bluish. (5) Blood stained mucous is coming out from both Nostrils. (6) R.M. Present at lower limbs and disappeared from upper part of body. (7) Neck is swollen and bluished. 3 oval shape markings are present on the Rt. Side of neck 7 going down wards medically all are parallel to each other. (8) Subcutaneous tissue of Neck is congested. (9) Larynx & trachea are congested and containing mucous c blood.” The opinion of the Board has also indicated as under :- “OPINION of the board of M.O's: Asphyxia caused by throttling is sufficient to cause death. Death is 16-24 hrs. before time of P.M.” Statements of Dr. Satish Gupta (P.W.16) and Dr.Anamica Vyas (P.W.17) were also recorded who had supported the statement of Dr.Niranjan Mehra (P.W.15). As against the prosecution case, the statement of accused under Section 313, Cr.P.C., is required to be seen to find out what explanation was given by him and as to whether the said explanation is true or false. The accused in his statement under Section 313 of Cr.P.C. stated that he was out of station, almost two days back from the date of death and reported back only at 7.00 a.m. and, at that time, his wife was found dead. He further stated that he had sent a Jeep to call his in-laws. He further stated that they were having dispute with Balu Ram and his in- laws on account of his sister. The only defense witness Roop Ram Singh produced as DW 1 has stated that accused Kailash is his neighbour. He visited Kailash's house when he heard Kailash 8 and his mother weeping. On asking, it was informed that Kailash's wife has died. It was stated by the said witness that when he visited Kailash's house at 5.30 a.m., Kailash was standing. The body of his wife was lying in the house and was fully covered by cloth. Trial Court considered the matter and based on circumstantial evidence, as well as defence of the accused, passed order of conviction and sentence. The learned counsel for the appellant raised two issues, firstly that nobody named Kailash for causing death of Ramu Bai and secondly, Kailash was out of station on the day of the occurrence. The perusal of FIR itself reveals that allegation against accused Kailash has been made and that too, under the circumstances that in-laws of accused Kailash were informed that Ramu Bai is unwell and, thereafter, it was informed that she is dead. When those persons came on the spot and saw the body, it was found that the face and neck of deceased were having swelling and looking to the suspicious circumstances at that stage, the matter was immediately reported to the police. During the course of investigation and especially by medical board, it came out that deceased died due to asphyxia by throttling. It was not a case of natural death of Ramu Bai, even witnesses stated the same facts as were indicated in the First Information Report and supported prosecution case, except few prosecution 9 witnesses who were then declared hostile. The statements of witnesses further show presence of accused on the day of occurrence. Thus, it cannot be said that the accused was not present at his residence on the day of occurrence, more specifically when the statement of accused under Section 313 of Cr.P.C. becomes false, because accused stated that he came back to his home at 7.00 a.m., whereas defence produced by accused himself stated that when he visited residence of Kailash at 5.30 a.m., he was standing there and dead body was lying on the floor. Hence statement of accused become false. The accused could not give explanation of death. In the case reported in 2000 Crl.L.J.4047 (State of West Bengal v. Mir Mohammad Omar and Others), the Hon'ble Apex Court considered the issue, which is quoted here:- (30.) The abductors have not given any explanation as to what happened to Mahesh after he was abducted by them. But the learned Sessions Judge after referring to the law on circumstantial evidence concluded thus: “On a careful analysis and appreciation of the evidence I think that there is a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the deadbody of the deceased at Islamia Hospital. Therefore, 10 the conclusion seems irresistible that the prosecution has failed to establish the charge of murder against the accused persons beyond any reasonable doubt.” (31.) The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offend4ers in serious offences would be the major beneficiaries, and the society wold be the casualty. (32.) In this case, when prosecution succeeded in establishing the aforenarrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this. (33.) Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law o evidence that a fact otherwise doubtful may be inferred from certain other 11 proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. (34.) When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with the. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the Court what else happened to Mahesh at least until he was in their custody. In the present case also, the accused has firstly given a false statement about his presence and did not disclose as to 12 what happened to deceased while she was at the residence of accused. In view of the judgment referred to above, it can be said that the accused having failed to give explanation, he is liable to be convicted for the murder. The circumstances available on record also show that the deceased died due to asphyxia by throttling. Thus, it was necessary for the accused to explain as to how occurrence took place during night time when deceased was living with accused in his house and other than parents, nobody else was living in that house. It is also a fact that accused has not stated that occurrence was caused by someone else. More so, under the circumstances that it not being a case of natural death. The accused did not report to police about the death of Ramu Bai. Thus, in the light of these facts, the trial Court rightly came to the conclusion that there exists chain of circumstances to prove guilt of the accused Kailash. Material available on record shows that Kailash and Ramu Bai were living in a room, where others cannot reach by jumping wall from back side. As per the material available, it is also proved that deceased and Kailash were present in the room on the day of occurrence. The statement of accused about his presence found to be false in the light of statement of DW.1. In the light of above facts, we cannot accept arguments of the learned counsel for the appellant not only for the reason 13 that there is a false explanation given by the accused, but also for the reason that the chain of circumstances discussed by the trial Court, guilt of accused Kailash found to be proved by prosecution beyond doubt. Hence there is no reason to interfere in the finding of the learned trial Court. The accused has been convicted under Section 498-A of IPC also, the finding for the said conviction and sentence is not being challenged during the course of argument. Thus, we affirm the finding of the trial Court regarding conviction and sentence of the accused under Section 498-A of IPC also. In the light of discussions made above, we affirm the judgment of the trial Court and maintain the conviction and sentence of accused Kailash. The appeal is accordingly dismissed. (MUNISHWAR NATH BHANDARI),J. (BHAGWATI PRASAD),J. Scd.