1 I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN JAI PUR BENCH, JAI PUR J U D G M E N T ( 1) S.B. CRI MI NAL APPEAL NO.8 1 2 / 2 0 0 3 Raj v eer @ Kasam & Or s. Vs. Th e St at e of Raj . AND ( 2) S.B.CRI MI NAL APPEAL NO. 8 8 7 / 2 0 0 3 Mah en dr a Vs. St at e of Raj . D.B.CRIMINAL APPEALS UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT DATED 17.5.2003 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.1, JHUNJHUNU IN SESSIONS CASE NO.133/ 2001 (12/ 99) – THE STATE OF RAJASTHAN VS. RAJVEER @ KASAM & OTHERS. * * * * * DATE OF JUDGMENT: 19th February,2009 HON'BLE MR.JUSTI CE S.P.PATHAK Mr.Sanjay Mehla, Mrs.Shashi Choudhary & Smt.Sunita Mehla, for the appellants in Cr.Appeal No.812/ 2003 Mr.Vijay Poonia, for the appellant in Cr.Appeal No.887/ 2003 Mr.Sanjeev Mehla, Public Prosecutor. BY THE COURT: These two criminal appeals have been filed under Section 374 Cr.P.C. against the judgment dated 17.5.2003 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jhunjhunu in Sessions Case No.133/ 2001 (12/ 99), whereby the accused appellants have been convicted and sentenced as under: - 2 _______________________________________________ Appellants Conviction Sentence U/ Sec. ___________________________________________________ Rajveer & Bhagwani 306 I.P.C. Ten years R.I. and a fine of Rs. 2000/ - in default thereof two months S.I. Rajveer,Bhagwani, Mool Chand Meena & Mahendra 201 I.P.C. Three years R.I. and a fine of Rs.1000/ - in default hereof one month S.I. ___________________________________________________ Since these two appeals are arising out of same judgment of conviction and sentence, therefore, they are being heard and decided together. Briefly stated the facts giving rise to the present cases are that before the S.H.O., Police Station, Chidawa, a report Ex.P10 was submitted by P.W.8 Jitendra Singh with the averments that his two sisters namely Sudha and Sushila were married in the family of the accused. Sudha was the wife of accused Rajveer, whereas Sushila is the wife of Mahendra. It is also averred that the marriage took place in the year 1989 and thereafter the deceased Sudha was harassed by her husband regularly and in this act her mother-in-law accused Bhagwani was also assisting. It was also stated that a day before the incident Rajveer gave beating in the morning at the field and in the night she was 3 again beaten and deceased was done to death. It is also stated that deceased was having a son namely Ankit aged 2½ years and a daughter namely Guddi aged 4 years. It is also stated that the deceased as well as master Ankit and kumari Guddi were thrown into a well after murdering them. This report Ex.P10 was handed over to one Constable Sikander Singh by the S.H.O., Police Station P.W.14 Ram Singh for registering the case at Police Station, Chidawa. On the above report, F.I.R. No.361/ 98 was registered under sections 302, 201 & 498-A I.P.C. and investigation commenced. During the course of investigation the accused were arrested. The statements of witnesses recorded under Section 161 Cr.P.C. and site-plan Ex.P9 was prepared in presence of accused on 3.10.1998. Accused Mool Chand in his discloser statement Ex.P19 stated that he took out the dead bodies from the well and thereafter cremation took place. The site-plan prepared is Ex.P9. After completion of investigation, charge-sheet was filed initially against accused Rajveer, Vijay Singh, Mool Chand and Raju. Subsequently, a titamba charge-sheet was filed against accused Mahendra and Smt.Bhagwani. Against accused Rajveer @ Kasam and Smt.Bhagwani charges were framed under Sections 498-A, 306 & 201 I.P.C., whereas in relation to other accused persons namely Mahendra, Vijay Singh, Mool Chand and Raju charge was framed under Section 201 4 I.P.C. The accused denied the charge and claimed trial. In support of its case the prosecution examined as many as 14 witnesses and tendered several documentary evidence. After close of the prosecution evidence, in the statement recorded under section 313 Cr.P.C. mainly the accused stated that they were falsely implicated in the case deceased committed suicide by jumping into a well along with son master Ankit and Kumari Guddi. In defence D.W.1 Smt.Sajna and D.W.2 Smt.Kamla were examined. The learned trial court after hearing final submissions vide its judgment and order dated 17.5.2003 convicted and sentenced the accused appellants as indicated hereinabove but acquitted the accused Vijay Singh and Raju of the charge under Section 201 I.P.C. Hence these two appeals have been filed. I have heard Mr.Sanjay Mehla learned counsel appearing on behalf of accused appellants Rajveer @ Kasam, Smt.Bhagwani and Mool Chand and Mr.Vijay Singh Poonia learned counsel appearing on behalf of accused appellant Mahendra Singh and also the learned Public Prosecutor and carefully perused the material available on record. It has been the contention of the learned counsel that in the instant case since two accused having been 5 acquitted of the charge under Section 201 I.P.C. namely Vijay Singh and Raju, therefore, conviction recorded against accused appellants Mahendra, Mool Chand and Smt.Bhagwani is liable to be set aside because there is no evidence against them. On the other hand, the learned Public Prosecutor contends that in view of statement of P.W.14 Ram Singh, it has been established that above two accused took out the dead bodies from the well and thereafter the cremation took place. Therefore, charge under Section 201 I.P.C. stands established. I have considered the above submissions made before me. It appears that in the instant case, there has not been a word stated by the witnesses in relation to accused appellant Mool Chand except in the statement of P.W.14 Ram Singh, wherein he has stated that on the basis of discloser statement made by accused Mool Chand to the effect that dead bodies were taken out by him from the well and cremation took place, site-plan Ex.P19 was prepared cannot be considered sufficient evidence to hold guilty under Section 201 I.P.C. particularly when after trial accused persons namely Vijay Singh and Raju have been acquitted of the charge under Section 201 I.P.C. on the same set of evidence. Since the discloser statement accused 6 Mool Chand was about his taking out the dead bodies from the well of deceased Smt.Sudha, Master Ankit and Kumari Guddi in itself is not sufficient to draw a presumption that he is in any manner tried to conceal or destroy the evidence in this case. The findings of the learned trial court when examined in the light of evidence led in this case, it appears that witnesses relating to commission of offence under Section 201 I.P.C. have not supported the prosecution case. In this connection, evidence of P.W.2 Dinesh, P.W.3 Pankaj Rathi and P.W.4 Ravindra is relevant and a perusal of their evidence reveals that they have not supported the case of the prosecution at all and in fact P.W.2, P.W.3 & P.W.4 namely Dinesh, Pankaj Rathi and Ravindra have been declared hostile by the prosecution, therefore, the accused Moolchand, Mahendra and Smt.Bhagwani, who is mother-in- law as has not been held guilty under Section 498-A I.P.C. by the trial court are liable to be acquitted of the charge under Section 201 I.P.C. as the main allegations are against the husband that he used to ill-treat the deceased and was also in the habit of taking liquor regularly and thereafter used to harass the deceased and on the day of incident at the field as well as at the house gave beating to the deceased. The next contention of the learned counsel is that in the instant to prove that accused appellant 7 Smt.Bhagwani committed offence under Section 306 I.P.C., it is essential that there should be the evidence of instigation and abetment and in this case allegations are against the husband regarding cruelty against deceased wife , therefore, it cannot be presumed that accused appellant who is mother-in-law instigated the deceased to commit suicide. It has also been contended that the learned trial court acquitted the accused appellant Smt.Bhagwani, mother-in-law for the charge under Section 498-A I.P.C. Therefore, in the absence of evidence to abet or instigate appellant Smt.Bhagwani cannot be held guilty under Section 306 I.P.C. It is also contended that the deceased being a short tempered lady, on account of her short temperament and may be on some quarrel between husband and wife on the day of incident the deceased committed suicide, then in the above circumstances, the accused appellant husband cannot be held guilty under Section 306 I.P.C. in the absence of evidence to show that accused appellant abettted or instigated the deceased to commit suicide. On the other hand, the learned Public Prosecutor contends that a perusal of Ex.P.10 on the basis of which formal F.I.R. Ex.P17 was registered would disclose that deceased was ill-treated, tortured and was used to given beating by the husband. Therefore, by evidence led in the 8 case, it has been amply established that deceased was regularly tortured and it is for that reason she committed suicide. According to the learned Public Prosecutor, in this case there is no reply or explanation furnished is available on record to justify the act as to why the deceased were cremated without informing the in-laws. I have carefully considered the submissions made before me. It is to be seen that in Ex.P10, there is only a mention of the fact that Smt.Bhagwani also used to harass and ill-treat the deceased. The evidence led in this case particularly of P.W.9 Smt.Sushila the sister of the deceased and P.W.8 Jitendra Singh the brother of the deceased discloses that mainly the allegations are against the husband. As regards mother-in-law Smt.Bhagwani is concerned, there does not appear sufficient material on record to hold her guilty for the charge under Section 306 I.P.C. in the absence of cogent and reliable evidence which is required to prove the guilt under Section 306 I.P.C. and as the evidence of instigation and abetment is missing against the mother-in-law. She cannot be convicted under Section 306 I.P.C. 9 Now, matter requires consideration in relation to accused appellant Rajveer @ Kasam, who is the husband of the deceased. The learned trial court while discussing the evidence has recorded its finding that accused appellant Rajveer @ Kasam the husband of the deceased was responsible for instigating the deceased to commit suicide as his behavior towards the deceased was such that in those circumstances any body could commit suicide. It has also been the finding recorded by the trial court that in relation to character of the deceased, she was also teased. Be that as it may, in the evidence, which has come on record clearly indicates that character of the deceased was a matter, which was one of the cause appears in view of cross examination done from the witnesses. It also appears from the evidence that accused appellant Rajveer @ Kasam used to drink regularly and thereafter used to ill-treat the deceased. In the statement of P.W.9 Smt.Sushila it has been stated by her that on the day of incident at the filed deceased was beaten and in the evening the accused after taking liquor gave severe beating to the deceased and also there were exchange of hot words to the extent that she may commit suicide. Therefore, in my opinion there is sufficient material available on record to hold guilty accused Rajveer, who is husband of the deceased, who managed cremation of the dead bodies without informing the in-laws 10 and police. After having considered the evidence led in this case, I find that prosecution has been able to prove charge against accused appellant Rajveer @ Kasam and the finding recorded by the learned trial court appears to be reasonable and proper and requires no interference. In view of foregoing discussion, the Cr.Appeal No.812/ 2003 is required to be partly allowed. The conviction and sentence recorded against the accused appellant Rajveer @ Kasam requires to be maintained. As regards accused appellants Smt.Bhagwani, Mool Chand and Mahendra are concerned, their conviction and sentence is liable to be set aside. In the result, the Cr.Appeal No.812/ 2003 is partly allowed. The conviction and sentence recorded against accused appellant Rajveer @ Kasam for offence under Sections 306 & 201 I.P.C. is maintained. The conviction and sentence recorded against accused appellants Smt.Bhagwani, Mool Chand Meena for offence under Section 306 & 201 and 201 I.P.C. respectively is set aside. The Cr.Appeal No.887/ 2003 is allowed. The conviction and sentence awarded to the accused appellant 11 Mahendra under Section 201 I.P.C. is set aside. The accused Rajveer @ Kasam is in jail. He will serve out the remaining part of the sentence. The accused Smt.Bhagwani, Mool Chand and Mahendra are on bail. They need not to surrender. Their bail bonds stand discharged. ( S.P.PATHAK) J. BKS/ -