1 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T HASTIMAL V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 192/2010, against the judgment dated 09.04.2010 passed by Shri Ghanshyam Giri, RHJS, Additional Sessions Judge, Bali, District Pali, in Sessions Case No.79/02. DATE OF JUDGMENT 14/05/2010 PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr.Suresh Kumbhat with Mr. Sheetal Kumbhat, for Appellant (s). Mr.K.R.Bishnoi, PP, for the State. Mr. S.S.Badgujar with Mr. Mridul Jain, for Complainant. BY THE COURT: (PER HON'BLE TOTLA, J.) Appellant is convicted for the offence of S.302 and sentenced to life imprisonment with fine Rs.500/-, hence is this appeal. Alleged incident and sequence of events, according to prosecution, is that on July 9, 2002, about 7-8 O'clock morning, deceased Smt. Bhagu w/o. appellant, making phone call from Sumerpur to Chamunderi told her first cousin brother Dhan Raj PW 2 to hurriedly take her from 2 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. there, so PW 2, with his father PW 6, uncle PW 5 and PW 6, in a jeep, went and arrived at about 9.30 a.m. to house of Bhagu at Sumerpur – there, at house not was she and her in-laws did not telling any about her, but some persons, standing out of house, informed that she is taken to Mahveer hospital, so they went to hospital, than came to know about death of Bhagu. Dhan Raj PW 2 submitted written report Ex.P7 – scribed by PW 13 – on same day at fourteen hours at police station, stating that her cousin sister Smt. Bhagu d/o. Shri Chaupa Ram Ji, was married per Hindu rites about two and half years to Hastimal s/o. Shri Pratap Ji, r/o. Sumerpur, – till some time after marriage well kept by in-laws, but after about a year, husband used to harass and beat her which was narrated by Bhagu as and when she came to parental house, but after consolation was made back to in-laws' – for this harassment and beating etc., husband and in- laws were also requested, but cruelty and beating continued. In this report, PW 2 also informed that yesterday when his cousin Umed Ram PW 4, who works as carpenter in Sumerpur, when passing from near house of Bhagu, was called and told by her that husband beating her intends to finish (kill) her and so PW 4 to inform (at village) brother but as PW 4 did not came to the village, so he could not inform. On that day, in morning, sister Bhagu phoned him (PW 2) to come and take her, otherwise husband shall finish her life, so PW 2 and others came there and as above came to know of taking Bhagu to hospital and at hospital, came to know that giving a severe injury at head, Bhagu is killed. Also mentioned that father of Bhagu is at Bombay is informed by phone. SHO PW 19, registering first information report No.236/02 Ex.P8 for the offence of Sections 498A and 304B IPC and beginning investigation (i) examining dead body of Smt. Bhagu at hospital, prepared memos of state of body and apparent cause of death Exs. P3 and P4, (ii) examining place of occurrence, the residential house of appellant and deceased, prepared memo and site plan Ex.P2. Autopsy performed by doctors PWs 18 and 19 3 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. at 1430 hours-report is Ex.P8. Soon after autopsy, worn and blood stained clothes – blouse and odhna of deceased sealed vide memo Ex.P6 and packet marked as A. According to Investigating Officer and as mentioned in memo Ex.P2, on floor of room, were signs of spread but cleaned blood which not capable of taking sample. The place of occurrence and also dead body photographed by PW 11 - negatives and positives being Exs.P11 to 15. Appellant was arrested on same day at 6.30 p.m. and per his disclosure, recorded by PW 19 as Ex.P19 and at instance of appellant, recovered from Tand in room (inserted stone slab at height) and lying behind articles (household), a wooden moosal (article made of wood - at middle narrow for holding by hand - used for grain fine chaffing or like) of 2' length with more width on ends, having blood stains which seized and sealed, preparing memo Ex P9 and site plan Ex.P19 packet marked as B – keeping packets of article safe, the same were delivered at FSL. Recording statements of witnesses etc. and after completion of investigation by PW 19 and Dy.S.P. PW 26, charge-sheet submitted. Appellant charged for the offence of Sections 498A and 302 IPC that he, being husband of Bhagu, demanding dowry, subjected her to cruelty by harassing and beating, and as above, in morning of 9.7.02 with intention and knowing that by inflicting injuries of wooden moosal to her, death shall be caused, inflicting injury caused her death, claimed trial. Among the twenty-five prosecution witnesses examined, PW 2 is first informer and PWs 5 and 6 are uncle and elder father of deceased who arrived at Sumerpur, Smt. Sushila PW 7, is mother and Chopa Ram PW 18 is father of deceased, Umed Ram PW 4, and Ganesh Mal PW 16 are cousin brothers of deceased and for PW 4, mention as above is in FIR. Vela Ram PW 8, Hindu Ram PW 9 and of Ram Singh PW 10 relate to samaj panchayat about ten days earlier to incident, assured whereof good behaviour and no demands Bhagu is said to have gone to matrimonial house. PWs 14 and 15 regarding relations between spouses 4 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. are declared hostile. PW 3 is one of the motbirs of recovery of moosal and PW 1 of arrest. PW 19 SHO and PW 25 Dy.S.P. investigated the case. Head constable PW 22 and constables PWs 23 and 24 relate to safe keepng and delivery of packets at laboratory – medical officers PWs 20 and 21 performed autopsy. Appellant explains that while Bhagu was taken to hospital for treatment, she told of sustaining injuries because of fall from staircase and after her death and as his in-laws not happy so this case initiated and witnesses telling false. No defence evidence led. Learned Additional Sessions Judge, acquitting for the offence of S.498A IPC, convicted and sentenced for the offence of S.302. Learned counsel for the appellant contends that absolutely no reason was even to harass the deceased what to talk of causing death – dowry is not prevalent in community-frequent is “nata” and 'Chutkara', -so even if appellant for whatever reason did not like deceased, it was very easy to have separation (“nata”) per customs and to marry other. Argued that only because wife died because of injuries no adverse inference for appellant should be and can be. Extensively reading statements submits that no eye witness or any circumstance against appellant is and alleged recovery of wooden 'Moosel” is from residential premises as above jointly owned and resided by many and in any case when obviously site inspection was hours prior to arrest of appellant, cannot be said that this article recovered (from house) on disclosure. Submits that even before the panchayat 10-12 days ago, no issue of any demand was. Submits that deceased very often and frequently indulged in unbecoming behaviour and acts and had long talks with strangers and for that even her mother PW/7 several times reprimanded her. Lastly submits that for injuries explanation of appellant that deceased sustained injuries because of falling from staircase is highly probable and quite plausible, more so, when no fracture of head was. Thrustly submitted that injury cannot be 5 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. attributed to appellant particularly when admittedly so many persons were there. Lastly submits that even per medical evidence, fracture only of mandible was and injury at head not grievous, therefore, the act maximum can be punishable under Section 325 IPC, more so when appellant is acquitted under Section 498A IPC. In support of contentions reliance placed on (i) 1996 Cri. L.J.3672, Dunga Ram v. State of Rajasthan; (ii) 2007 Cri.L.J.2964, Manjunath Chennabasapa Madalli v. State of Karnataka; (iii) WLN 1969 Part III – 41, Narain Lal v. The State of Rajasthan; (iv) RCC, Aug, 1993 p.437, Sankla v. State of Rajasthan; (v) 2000 Cri. L.J.3175, Vasa Chandrasekhar Rao v. Poona Stayanarayana; (vi) 2009 (2) CJ (Cri.) Raj.657, Jaiprakash @ Jelly v. State of Rajasthan; & (vii) 2004 (2) R.Cr.D.56, Iqbal Singh @ Balbir Singh v. State of Rajasthan. Learned Public Prosecutor argues that deceased herself in morning around 7-7.30 AM informed her first cousin PW/2 to take her because of threat to her life and when PW/2 and others arrived at 9:30 or so, she not at home and found dead in hospital. Relying on ocular evidence, recovery of cleaning of blood and photographs, state that she died only because of inflicting injuries by appellant and article of inflicting injury is also recovered. Considering arguments, we have gone through the evidence and impugned judgment. From oral evidence stands proved that at about 11.00 a.m. or little earlier Smt. Bhagu was dead. Medical officers of Government hospital Doctors PWs 20 and 21 jointly performed autopsy and prepared report Ex.P18. From their testimony, stands proved that post-mortem conducted at 2.30 p.m. on 9.7.02 and Smt. Bhagu w/o. Shri Hastimal, aged 22 years, had injuries -(1) Lacerates wound 3 x 2 x 1 cm at frontal region. (2) Lacerated wound below mandible 2 x 1-1/2 x 1 cm with fracture below it on right of mandible.(3) Bluish peri oretertal discolomator around both eyes.(4) Bleeding from both nostrils. 6 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. Death occurred within twenty-four hours due to coma as a result of cranio cerebral injury – i.e. by above hemorrhage. As such stands proved that Smt. Bhagu died of above head injury and who also sustained mandible injury after late night of 8th and prior to late morning of 9th. Appellant for the offence under Section 498A stands acquitted. Going through the evidence for examining reasons and/or motive for incident, appears that for cogent and good reasons, particularly established sound financial condition of appellant and her family in relation to parents of deceased and prevalence of “nata” etc., appellant is acquitted for S.498A IPC, therefore, evidence on these aspects need not be gone into detail. The first information is lodged by Dhanraj PW/2. As father of deceased and some members of parental family were residing and working in Mumbai, while cousin PW/2 and brothers of father of deceased resided at Chamundri, 35 km from Sumerpur so natural and very acceptable is of phone call to PW 2 and steps taken by him. PW/2 states that on telephone he received call from deceased in morning of 09.07.02 that incited by in-laws, husband shall kill her so to come hurriedly and take her and while (she) was talking on phone, the phone was taken (snatched) by Hastimal (appellant husband) who told PW/2 of no need of coming as was their mutual affair but he (PW/2) stating that sister is not for beating said of coming to take her and then, he, Meetha, Bhabuta and Ghena in a jeep arrived to appellant's house at Sumerpur around 9-9.30 AM where floor of small room near bathroom was being cleaned by father and mother-in-law, Jeth and Jethani by mop (pocha) who did not reply any for whereabouts of Bhagu but some persons standing outside house spoke of taking Bhagu to Mahaveer Hospital so they all went to hospital where too she not found to them, therefore, PW/2 called Police station from where reply was that she dead and PW/2 to reach Police station. 7 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. Evidence disclose that deceased and appellant were married some time in early 2000 and she delivered male child in parental house. Witnesses PW/2, PW/6, mother PW/7, father PW/18 and others depose of calling and gathering of panchayat about 10-12 days prior to incident. PW/2, PW/5, PW/6, PW/16, Tara Ram PW/17 and parents of deceased PW/7 and PW/18 state of demand of dowry specific of rupees fifty thousand and beating etc. and that due to this since month or two Bhagu was at parental home. Witnesses speak that in-laws wanted to take her but they (parental side) insisted only if two persons of the community assure of well being and no demands etc. PW/8 and PW/9 stated that for above matter, PW/8 and PW/9 of community attended panchayat and there talks only of bad relations between husband wife so and as assurances extended Bhagu returned to maternal house. Though above witnesses, other than PW/8 & 9, also say of demand etc but the same has not been believed by the trial court for very cogent reasons including the omission etc in investigational statements. PW/9 who assured in the panchayt states that Bhagu told of harassing her over telephone calls etc. and nothing of demand like. Per PW/8, differences were because of harassment for telephone calls and like reasons and any did not speak of any other reason. Taking and considering all evidence together conclusion is that differences existed but not for any dowry like demand or requirements. Therefore, also follows that no specific reason prior existed for such an act of causing death. Smt. Sushila PW/7, mother of deceased in categorical terms depose that after panchayat and assurance of PW/8 & PW/9 of no beating, Bhagu, went to matrimonial house and after nine days in morning about 8 AM was call from Bhagu to Dhanraj to the effect that in laws are beating her so she be taken, Dhanraj told Hasti Mal of why so beating and that he is coming, but appellant asked Dhanraj to not to come. They went to hospital where Bhagu found dead. Per PW/7 during about 2-2 ½ years after marriage appellant often used to come to their (in laws) house and 8 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. she (PW 7) also about 4-5 times went to matrimonial house of Bhagu and she always given and extended complete regards. PW/7 straightly says that when Bhagu used to call (phone) others appellant objecting tried to prevent her and for this often ensued quarrel between husband wife and for this reason, Bhagu over stayed for month and two prior to Holi festival with parents. According to PW/7, she many times advertising (reprimanding) asked Bhagu to not to make unnecessary calls and so was she also advised by father and uncle of deceased. Per PW/7, ten days prior to the incident Bhagu came and resided with them happily and went happily with appellant. According to PW/7 on death of Bhagu they (parental side) became annoyed with appellant and his family and she and her husband had no complained with family of appellant and on asking of Dhanraj and Bhabutmal, case was registered. PW/7 states that she was never told by Bhagu of any beating by appellant . Entire incident is to be seen in perspective of above testimony of mother of deceased, with no reason to not to accept it. Statement of PW 7 is of significance. PW/2 states that his cousin Ummed PW/4 met him out of Mahaveer Hospital and told him that yesterday when he was passing through front of house of Bhagu, she calling him told to inform at home of rupees fifty thousand by inlaws and otherwise of finishing her. Such is also mentioned in FIR Ex.P/7 and similar is deposed by Ummed PW/4 but this alleged telling by deceased to Ummed is highly doubtful because unless Ummed PW/4 on his own initiative did not go to house of Bhagu there hardly have been any occasion to tell him so. Going through way, deceased noticing him and telling him is coincidental then and in addition to it, per PW/4, he for some reason could not go to village that day. All this is too coincidental to be relied upon and when no other evidence lead to inference of demand of dowry. Provenly Smt. B died of haemotoma as a result of injury on head and she also had injury and fracture of mandible. Very definitely PW/2, PW 5 and PW 1 and others on receiving information came to Sumerpur 9 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. and found Bhagu dead, and she died due to above injuries. PW/2, PW/5, PW/6 state that when they reached at house of appellant, floor of small room n ear bathroom was being cleaned by father, mother, elder brother and wife of elder brother. As the same do not find categorical mention in their investigational statements, so cleaning to their view become doubtful. SHO PW/19 states that registering FIR he reaching and inspecting place of occurrence, prepared memo Ex.P/2 and near this room of occurrence is straircase for first floor. In memo Ex.P/2 is mentioned that on floor visible are signs of blood but the same are cleaned so not possible to collect sample and the place including of these signs got photographed. On this memo are signatures of PW/2, PW/5 and thumb impressions of Meetha lal. Ratan lal, PW/11 depose of having shop of photography and taking photos of dead body and place of occurrence. PW/11 proves negatives Ex.P/11 to Ex.P/15 and positive P/11A to 15A and also say that place marked in Ex.P/2 was photographed. On this memo Ex.P/2 are signatures in the name of Ratan Lal. In photographs Ex.P/11a 13A some such signs are visible but all this is short of proving the same to be of cleaned blood. Bhagu died when she was residing with appellant and other inlaws and died of injuries. According to appellant, she died because she fell from staircase. Staircase per site plan appears to be there in house, Chagan lal PW/12 state that he at 9 AM when was at workshop came brother of appellant to call him and told that injured is wife of brother who is to be taken to hospital, so this witness in his jeep carried Bhagu to hospital- who had injury at head and, per witness, on way to hospital Bhagu conscious and speaking did not tell of inflicting of any injuries to her and that she fell down while coming down stairs and was injured. PW/12 states that appellant was at home who also accompanied to hospital. Here it is to be particularly noted that stairs as shown is between room and kitchen, so obviously if anyone falling then shall be either at stair or down staircase in chowk but no blood stains are found at any place. Clothes, 10 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. blouse and Odna of deceased were collected and sealed which had blood. On both sides of staircase appear walls. Injuries caused are two ; 3 x 2 x 1 cm at forehead and 2 x 1.5 x 1 cm. at mandible. In addition, per medical evidence, bleeding from both nostrils. Had she fallen from staircase, some blood must have been on the surface therefore, probability and plausibility of put forth by appellant is to be rejected. PW/19 states that appellant was arrested in evening and in course of investigation, appellant told him that wooden moosle” is at 'Thakri” (inserted stone slab in room at little height about of 1.5-2 ft width to keep goods), memo of the information Ex.P/19 bears signature of appellant and then at instance of appellant from the house lying on Thakri from behind articles recovered was 'Moosle' which seized and sealed preparing memo Ex.P/9 and site plan Ex.P/10. Motbir of this recovery PW/3 supports completely and witness say that the same had blood stains. This room was inspected by I.O. on the same day and prepared was memo. Argument advanced that-had this article been there, it must have come to the knowledge of PW/19 when he inspected site, is not of force because room was inspected but not thoroughly searched as the deceased was taken to hospital. In any case, even if for sake of arguments, the disclosure is discarded, still stands proved that this article was at Thakri in the room and recovered from the residential house of appellant. The article is proved to be having blood stains though group could not be determined. Non-determination of group here do not adversely affect the prosecution because the fact of bloods stains on such article in residential house on that day by itself being of significance is a strong corroborative evidence. Therefore, established is that deceased and appellant had some bickering or irritational like relations for some reasons like talking on telephone etc. Also established is that on that day, deceased had called PW/2 and told of threat by appellant while she was talking the appellant 11 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. taking phone from hands spoke of their internal matter. Talks specifically centered for beating to Bhagu then within 2-3 hours by the time PW/2 and others reached, deceased having sustained injuries was taken to hospital and she was dead. The wooden article having blood stains recovered on the same day. Smt. Bhagu was residing with her husband and in-laws when she sustained injuries – appellant being husband and very much with deceased in same house at or just about time she sustained injuries, then specific fact about such happening can be and was especially in knowledge of appellant – even if parents and brothers of appellant were also in house, still specific relevant facts were in knowledge of the appellant. As such, it is for the appellant to show existence of any such circumstances, if any, were. As above, proved is that (i) deceased Bhabu when sustained injuries and died, was residing with appellant and at matrimonial house, (ii) in morning at about 8.00 a.m., she, on phone to PW 2, expressed some threat of physical injury and life, (iii) when she was on phone, appellant, taking phone, told PW 2 of their internal matter between spouses, (iv) when uncle PW 2 and other arrived in about one and half hours by 10.00 a.m., Smt. Bhagu was at hospital and succumbed to injuries around that time, (v) wooden article “moosal” found in house in room, as above, had human blood. All these lead to only conclusion of inflicting injury by appellant, consequential as a result of injuries, death of Smt. Bhagu. Now on the basis of established facts is to be determined whether the act amounts to murder. Deceased Bhabu did call her cousin only morning while she was talking and when talked of threat of injuries to her, appellant took telephone and said of matter between spouses. Appellant did not prevent wife from talking to cousin, rather allowed. Frequent was bickering between the parties and irked were relations because of unwanted long 12 D. B. Criminal Appeal No.192/2010 Hastimal v. The State of Rajasthan. talks to others unknown or not well-known to husband and to his dislike. Relations irked between them because of this. Such a irking and annoyance was frequent, but not continuous and in this perspective on that day, for some such reasons between them ensued unpleasantness, annoyance and irking. Article used for inflicting injury, is wooden and generally found in joint families as household article. Death was due to haemotoma but no fracture on head was. These facts and other circumstances, taken together, show that some teasing, annoyance, irking errupted between spouses and appellant inflicted injury to her. All these elements, taken together, show that appellant not intended or any knowledge of causing cause death and bodily injury with