D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) Smt. Sumitra vs. The State of Raj. D.B. Criminal Appeal No.402/2002 (2)The State of Raj. vs. Vandhna @ Pinki & ors. D.B. Criminal Appeal No.756/2002 against the judgment dated 4.4.2002 passed by the learned Addl. Sessions Judge(Fast Track), Ratangarh District Churu in Sessions Case No.14/2002. Date of Judgment: May 30th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. K.K. Kalia, for the appellant in Appeal No.402/02 and for the respondents in Appeal No.756/02. Mr. J.P.S. Choudhary, P.P. for the State. Mr. M.K. Garg , for the complainant. BY THE COURT( Per Hon'ble Mr.Tatia,J): The D.B.Criminal Appeal No.402/02 has been preferred by appellant Sumitra against the judgment and order dated 4.4.2002 passed in Sessions Case No.14/2002(6/99) by the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 2 court of Addl. District Judge( Fast Track), Ratangarh District Churu wherein the appellant Sumitra has been convicted for charge under Section 302, IPC and has been sentenced to undergo life imprisonment with fine of Rs.2000/- and in default thereof, to undergo two years' rigorous imprisonment. By the same judgment and order, co-accused Bhojraj, appellant's son and daughter Vandna and Sanjay were acquitted for the charge under Section 302 read with 120B, IPC and in alternative, for charge under Section 302 read with Section 34, IPC, and against the order of acquittal of above three accused, the State has preferred D.B.Criminal Appeal No.756/02. The facts of the case are that on 10.11.1998 at 7.30 p.m., the complainant Choth Mal submitted a written report in the Police Station, Churu alleging that he received telephone call from the appellant Sumitra at his shop and the appellant Sumitra told him that she wanted to talk with complainant's son Satya Narayan. Satya Narayan after talking on telephone, told the complainant that he has been called by the appellant at Churu, therefore, he is going to Churu. In D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 3 the complaint, it is mentioned that the appellant had relations (indicated as illicit) with Satya Narayan since long time and since last 2-1/2 years they are not having cordial relation. The complainant told his son to not to go to Churu but he did not obey and went to Churu. The complainant had some doubt, therefore, after some time, he went to Churu to find out his son Satya Narayan. When he reached to the house of the appellant, he found that the motor cycle No. RJ18/0040 of Satya Narayan was lying out side the house of the appellant. He enquired from neighbour Nath Mal and others about Satya Narayan, upon which he was told that they saw Satya Narayan going in the house of the appellant but have not seen Satya Narayan coming out from the house. However, they stated that they heard voice crying “save save”. In the complainant, it is also alleged that Bhojraj,brother-in-law (sister's husband) of appellant Sumitra, also gave threat to Satya Narayan that he will kill Satya Narayan. In the complaint, the complainant stated that he has doubt that his son Satya Narayan might have been murdered by appellant Sumitra and his son Sanjay with the help of her D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 4 brother-in-law Bhojraj Sharma. On receipt of this written complainant FIR No.360/98 under Section 302/34, IPC was registered and investigation started. During investigation, map (Ex.P.3) of site and site report(Ex.P.3A) were prepared in the presence of complainant Choth Mal and one Ramjilal Soni. The dead body of victim Satya Narayan was recovered from the plot of one Shanker Lal which is adjoining to the house of the appellant, which is separated by wall of 6 ft. The report about the body of the deceased was prepared in the presence of complainant and witness Sohan Lal which is Ex.P.4 in the mortuary of the hospital of Churu. Panchnama (Ex.P.5) of the dead body of Satya Narayan was prepared in the presence of witnesses Sohan Lal, Radhy Shyam Soni, Ramjilal Soni and Sanwar Mal Soni. The accused Sumitra was arrested on 11.11.1998 for which arrest memo Ex.P.15 was prepared. Accused Vandna was also arrested on 11.11.1998 and her arrest memo Ex.P.16 was prepared. The accused Sanjay son of the appellant Sumitra was arrested on 19.2.1999 vide arrest memo Ex.P.31 and Bhojraj was arrested on 22.7.1999 vide arrest memo Ex.P.27. On the basis of information given by the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 5 appellant under Section 27 of the Evidence Act, vide Ex.P.35 dated 13.11.1998, one sari and one long piece of cloth were recovered from appellant Sumitra and recovery memo Ex.P.9 was prepared. The sari and cloth had blood stains. As per the information Ex.P.36 given by co-accused Vandana dated 13.11.1998, one iron chain and bunch of keys were recovered from the room of the house of accused appellant Sumitra and her daughter Vandana lying in iron box and recovery memo Ex.P.10 was prepared. The appellant Sumitra's son Sanjay was arrested on 19.2.1999 and he gave information under Section 27 of the Evidence Act on 21.2.1999 which is Ex.P.28 and in pursuance of that information, a telephone wire was recovered on 21.2.1999 itself, for which seizure memo Ex.P.24 was prepared. Shirt, pent,undergarments and motor cycle of deceased of deceased were also recovered. The dead body of the victim was sent for post-mortem and post-mortem report Ex.P.18 was obtained from the doctor and articles were sent to the Forensic Science Laboratory and from where reports Ex.P.37 and Ex.P.38 obtained. Statements of the witnesses were recorded and thereafter challan was filed D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 6 against the four accused Smt. Sumitra, Miss Vandana, Sanjay and Bhojraj and charge under Section 302 read with Section 120B and in alternative, under Section 302 read with Section 34, IPC were framed, which were denied by all the accused and they sought trial. In the trial, the prosecution produced witnesses, PW-1 Choth Mal, father of deceased, PW-2 Dhanne Singh and PW-3 Nath Mal, neighbours of the house of the appellant Sumitra, PW-7 Radhey Shyam, sister's uncle-in-law of victim Satya Narayan, who stated that he accompanied the victim Satya Narayan on motor cycle to appellant's house. Statements of other witnesses including of Daulat Ram, Investigating Officer (PW-10) was also recorded in the trial court. The documentary evidence, referred above, as well as the articles were produced in the trial court. The statements of the accused were recorded under Section 313, Cr.P.C. wherein the accused denied the charge and the appellant Sumitra stated that she was not at the residence and she was in the office where she was attending the meeting of old person's pension matter. She stated that D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 7 the victim Satya Narayan was a thief and several cases were going on against him in the courts. Accused Bhojraj stated that he is resident of village Bahal and he was not present at the scene of occurrence and he was not in Churu and he has wrongly been implicated in this case. In defence, witness DW- 1 Ashok Kumar Sharma was examined and documents Ex.D.1 to Ex.D.3 were got exhibited and one certificate Ex.D.4 was also produced by the defence. After appreciation of evidence, the trial court convicted the appellant Sumitra alone that too for the charge under Section 302, IPC and accused Sumitra was acquitted from charge under Section 120B, IPC and the trial court acquitted all other accused. The learned counsel for the appellant vehemently submitted that the entire story against the appellant Smt. Sumitra is concocted one. In fact, the written report was not submitted by complainant Choth Mal on 10.11.1998 and in fact he came on the scene of occurrence after one day, after police found the body of the victim Satya Narayan. He was informed by the police through wireless message from Churu through their counter part at village Bisau. The complainant D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 8 did not saw the victim's motor cycle out side the house of the appellant and was not present when the dead body of his son was recovered by the police. It is submitted that if the complainant would have reached to the scene of occurrence before the police reached, then there was no reason for police for sending wireless message to the family members of deceased Satya Narayan. It is also submitted by the complainant Choth Mal that the police reached on the scene of occurrence on the same day, the date on which the incident occurred and that too by 6 p.m. The police entered the house of the appellant Sumitra and recovered belt, shoes, shocks and one cotton-sheet etc. and also took blood stained clothes which were cut and separated at the police station by blade. On the same day, bunch of keys and one chain was recovered by the police. Contrary to it, as per the site map, site inspection report as well as the recovery memos, the recoveries were not made on the date of incident but have been shown as affected after some days. The complainant PW-1 Choth Mal's statement was contradicted materially by the statement of PW-2 Dhanne Singh, who has deposed that D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 9 the articles were recovered from the different place and in different manner and not as stated by PW-1 Choth Mal. PW-12 Mohan Lal, Investigating Officer, in his statement, stated that the articles were recovered by him not on the date of reporting the matter to the police by the complainant but were recovered on the next day. The bunch of keys and chain were recovered from Vandana, one of the co-accused. Therefore, he contradicted the statements of PW-1 Choth Mal and PW-2 Dhanne Singh. It is also submitted that PW-1 Choth Mal stated that police reached on the place of occurrence on the same day and found the house of appellant closed from in side. The police tried to get the door opened from accused Sumitra but the door was not opened then the police persons from the wall of the house reached in the house and this statement has been contradicted by PW-12 Mohan Lal, Investigating Officer, who stated that when he knocked the house of Smt. Sumitra, she opened the gate. PW-1 Choth Mal stated that appellant Sumitra and her daughter both were arrested by the police on the same day and that fact has been contradicted by PW-12 Mohan Lal, Investigating Officer. The D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 10 learned counsel for the appellant pointed out that the timing given by complainant PW-1 Choth Mal of his starting from his village and reaching to Churu clearly casts doubt upon the credibility of complainant PW-1 Choth Mal. It is submitted that the distance between village Bisau and Churu is only 10- 12 kms. and if complainant started from Bisau to reach Churu at a distance of 10-12 kms., then he would not have taken so much of time so as to reach there by 5 p.m. It is submitted that the complainant and his family members were called by the police through wireless message, is as per the complainant's real brother-in-law Sohan Lal. The learned counsel for the appellant also submitted that it is highly improbable that the complainant Choth Mal heard the talk between the appellant and the deceased at any point of time and it is highly improbable that in short period, the father of a person will start searching his son when his son's antecedents are of criminal nature and who had alleged illicit relations with the appellant Smt. Sumitra. The complainant could not have any doubt of any untoward incident to his son so as to compel him to start searching his D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 11 son in a very short period of few hours only. It is also submitted that it is highly improbable that father of son will go to the house of his son's lady with whom his son may have illicit relations. Therefore, the complainant's statements that he heard some talk between the appellant and Satya Narayan from distance, is only to put the life in a false case. In sum and substance, PW-1 Choth Mal was not present on 10.11.1998 at the place of occurrence nor he saw the motor cycle of deceased Satya Narayan lying in front of the house of appellant Smt. Sumitra nor he talked with any of the villagers. The report Ex.P.1 was obtained from the victim's father PW-1 Choth Mal by the police subsequent to tracing the body of deceased Satya Narayan to implicate appellant and her entire family. It is also vehemently submitted that complainant PW-1 Choth Mal in his court's statement falsely implicated co- accused Vandana, whose name was not given by him in the written report Ex.P.1. It is also submitted that the prosecution tried to implant the witnesses and that implant witness is Radhey Shyam, who stated that he was with the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 12 deceased on motor cycle and reached to the house of appellant Smt. Sumitra. This fact has not been mentioned in Ex.P.1 and PW-7 Radhey Shyam's conduct is self-explanatory which exposes the said witness PW-7 Radhey Shyam wholly unreliable and therefore, his statement cannot be relied upon and further this is proof of concocting false story against the appellant by the prosecution. The learned counsel for the appellant also assailed the credibility in the statement of PW- 2 Dnanne Singh and pointed out that when any one is attacked, he may shout and cry for safety but will not shout the names of the assailants whereas PW-2 Dhanne Singh in his statement, stated that he heard the shouting of the deceased Satya Narayan who was shouting that Sumitra, Sanjay and Vandana are killing him. This statement was given just to see that none of the family members of the appellant Smt. Sumitra be speared. It is also submitted that the witness Dhanne Singh had ill-will against the appellant's entire family. It is submitted that if the conduct and the statement of the witness are found unnatural and against human conduct, then the statement of that witness is unreliable and it can be D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 13 presumed that he is a tutered witness. The conduct of witness Dhanne Singh hearings of voice of Satya Narayan from the house of appellant is also absolutely unnatural as he stated that when coming of voice from the house of appellant stopped, he simply went and sat with one Bajrang Lal. There one Nath Mal son of Satya Narayan came and he told him that Satya Narayan has been killed. It is also submitted that looking to the distance between the house of the appellant and Bajrang Lal, it is impossible that the witness Dhanne Singh would have heard anything or would have reacted in unusual manner where according to him, in his knowledge one person was killed in the house in his own Mohalla. It is also submitted that as per PW-2 Dhanne Singh, hearing the cries of Satya Narayan, the neighbours came on the roof of their houses and if it was so then all must have seen either killing of Satya Narayan by the appellant or at least must have seen throwing Satya Narayan in adjoining plot, whereas no such neighbour has been produced to say about killing by the appellant or throwing victim in the adjoining plot. He also stated that he saw one more person in the house of appellant Smt. Sumitra D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 14 but he did not saw the man coming out from the house of the appellant, then in the light of the statement of complainant himself, there was no opportunity to Smt. Sumitra to open the gate and send the man out from her house. The statement of PW-2 Dhanne Singh was contradicted by the statement of PW- 12 Mohan Lal, Investigating Officer, who stated that when the gate was opened, he found the appellant, her daughter and appellant's mother and one minor child in the house and none else. PW-2 Dhanne Singh also stated that the complainant Choth Mal came to house of the appellant on the next day and gave his introduction and asked about Satya Narayan then PW- 2 Dhanne Singh told about the incident. In view of above, Choth Mal has been implanted witness in all the recoveries memos etc. It is also submitted that the main witness Bajrang Lal was not produced in the court with whom Dhanne Singh was sitting. It is also submitted that looking to the total injuries on the body of the victim Satya Narayan and prosecution story that the victim was thrown in adjoining plot by the accused in injured condition then there would have been blood in the house of the appellant on the floor of the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 15 house as well as on the wall of the appellant's house. The learned counsel for the appellant vehemently submitted that no recoveries were made by the prosecution during investigation. The motor cycle was not lying out side the house of the appellant and only evidence to prove presence of motor cycle of victim in front of the appellant is the statement of the complainant PW-1 Choth Mal and at the most, other witness who is close relative of the victim whose presence is doubtful, as of presence of complainant Choth Mal. It is also submitted that no independent witness was called by the investigating agency when the recoveries were made. There are serious contradictions in the evidence of the prosecution witness about the alleged recoveries of articles from the house of the appellant and the witnesses of the prosecutions contradicted the statements of their own witnesses. It is also submitted that the report given by the FSL cannot be believed in view of the fact that none of the prosecution witness stated that the articles were put in cover and were sealed on the spot. PW-12 Mohan Lal, Investigating Officer no where stated in his statement that they were put in D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 16 sealed cover and put the seal samples on the memos. There is no evidence that the articles were put in the Malkhana properly and there is no evidence that those articles were sent in proper manner to the FSL. The seal was not exhibited. It is submitted that sealing the articles and sending them to the FSL in sealed condition with sample seal is a condition necessary for relying upon the report of the FSL, without which the FSL report cannot be read against the accused. In view of the above, there is every possibility that the articles were tampered with. It is also submitted that the prosecution has shown recovery of one telephone wire from co-accused Sanjay from the house of appellant Smt.Sumitra but there is no evidence that telephone wire of the appellant was ever cut by any body. The appellant's son Sanjay was arrested as late as on 19.2.1999, whereas the incident occurred on 10.11.1998. In view of the above, it is fully proved that due to enmity, a false case has been launched against the appellant and her entire family and in that only one of the neighbours, who had inimical relations with the appellant's family, supported the prosecution case by his false evidence. It is also D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 17 submitted that the appellant has been convicted only on the basis of circumstantial evidence, whereas complete chain of events have not been established and proved by the prosecution. It is submitted that no conviction can be based on mere suspicion howsoever strong it may be, as held by the the Hon'ble Supreme Court in the case of Babuda v. State of Rajasthan (AIR 1992 SC 2091) and in the case of Swinder Singh v. State of Punjab (AIR 1992 SC 669). Hon'ble the Supreme Court in the case of State of Rajasthan v. Taran Singh and another ( 2004 Cri.L.J. 654) held that if manner of incident given by the prosecution is doubtful and the place where the body was found which makes the defence version probable then the accused deserves to be acquitted on the basis of case of doubtful nature. It is also submitted that if it is found that the witnesses are tutered then they cannot be relied upon, as held by the Hon'ble Supreme Court in the case of Abdul Wahid v. State of Rajasthan (2004 Cri.L.J. 2850). It is also submitted that the Division Bench of this Court in the case of Rati Ram & ors. vs. State of Rajasthan (1993 Cr.L.R.(Raj.) 195) held D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 18 that it is duty of the prosecution to prove that the articles were sent in proper sealed cover to the FSL with sample of seal and if it is not proved then the report of FSL cannot be read against the accused. The learned Public Prosecutor vehemently submitted that from the evidence of the witnesses produced by the prosecution, it is well established that the victim had illicit relations with the appellant Smt. Sumitra since long time and he used to visit the house of appellant Smt. Sumitra. The relations between appellant and the victim became strained and the victim's father Choth Mal clearly stated that he himself received telephone of appellant by which she called the victim to her house. The victim went to the house of the appellant along with his brother's son-in-law Radhey Shyam (PW-7) on motor cycle. There is no reason to disbelieve the statement of PW-2 Dhanne Singh, who fully corroborated the statements of PW-1 Choth Mal complainant and PW-7 Radhey Shyam. It is also submitted that the body of the deceased was recovered from the plot which is adjoining to the house of the appellant which is separated by a wall of 6 ft. only. The D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 19 appellant's blood stained sari was recovered and as per the FSL report (Ex.P.37), sari had blood of human origin and the same is the position with the mattress and piece of cloth recovered from the house of the appellant and the FSL opined that on the cloths of victim, human blood was found. It is also submitted that even if there are no contradictions in the statements of the witness which can effect the credibility of the evidence of the prosecution witnesses and non- examination of independent witness, cannot be a ground for rejecting the evidence of the witness as held by the Hon'ble Supreme Court in the case of Ambika Prasad and another v. State (Delhi Administration) ( (2000) 2 SCC 646). It is also submitted that looking to the allegation of relation between the victim and the appellant Smt. Sumitra, it was difficult for the prosecution to produce more witnesses who may have been present on the scene of occurrence who might not have cooperated the prosecution because of the character of the appellant herself as well as of the victim. It is also submitted that non-mentioning of name of one of the accused in the FIR cannot have any adverse effect on the prosecution case if all D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 20 witnesses have supported the prosecution case. It is also submitted that even if there are some lapses on the part of the investigating agency, but if circumstantial evidence are reliable and proved