1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Pappu Vs. State of Rajasthan (D.B. Criminal Appeal No.1071/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 8-9-2004 in Sessions Case No.49/2003 passed by Shri Mohammad Anwar Ali, RHJS, Additional Sessions Judge (Fast Track) No.2 Baran Head Quarter Chhabra. Date of Judgment: September 01, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. J.K.Singhi, for the appellant. Mr. Ashwini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) This is a strange case where a husband namely Pappu fled away leaving his wife dead in his house and the dead body got cremated hurriedly in the night by the villagers. In this appeal the husband is appellant. He was put to trial, along with nine co-accused persons, before learned Additional Sessions Judge (Fast Track) No.2 Baran Head Quarter Chhabra. Learned Judge vide judgment dated September 8, 2004, while acquitting co-accused persons, convicted and sentenced the appellant as under:- U/s.302 IPC: To suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer rigorous imprisonment for one year. 2 U/s.201 IPC: To suffer rigorous imprisonment for five years and fine of Rs.1000/- in default to further suffer rigorous imprisonment for five months. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on March 13, 2003 at 7.45 PM informant Gulab Chand (Pw.9) submitted a written report (Ex.P-15) at police station Harnavda Shahji to the effect that his daughter Nirmala, who married to Pappu 4-5 years back, used to be harassed in connection with demand of dowry by her husband and in-laws. Informant thereafter kept Nirmala with him at his village Setkelu. Only 4-5 months back Pappu took her with him at his village Jhanjhani. On March 13, while he was at his village Setkelu, he came to know that on March 12 Nirmala died and hurriedly cremated in the night. The informant had apprehension that either Nirmala was killed or she committed suicide because of harassment. On that report a case was registered under sections 304B, 498-A, 306 and 302/34 IPC and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, accused was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.2 Baran Head Quarter Chhabra. Charges under sections 304-B or 302, 306 and 201 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec.313 CrPC, the accused 3 claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions, while acquitting co- accused persons, convicted and sentenced the appellant as indicated herein above. 3. We have given our thoughtful consideration to the contentions advanced before us. 4. There is no eye witness of the incident and case of prosecution rests on the circumstantial evidence. From the evidence adduced by the prosecution the following circumstances are clearly established:- (i) The marriage of Nirmala with the appellant Pappu had taken place about 8- 10 years back. At the time of marriage Gulab Chand (father of Nirmala) charged a sum of Rs.10,000/- from Pappu. (ii) While Nirmala was residing with Pappu, she developed intimacy with one Roop Singh, who took her away after paying Rs.10,000/- to Gulab Chand. (iii) Gulab Chand (Pw.9) and Kaushalya (Pw.10), mother of Nirmala, admitted that they charged money from Pappu and Roop Singh. They further stated that after residing with Roop Singh, Nirmala came back and remained in their house for about 10-12 days. She was thereafter taken back by Pappu where she resided till her death. (iv) Nirmala died on March 12 around 10 PM in the house of Pappu. Leaving 4 Nirmala dead, Pappu fled away from the village and the villagers immediately cremated Nirmala in the night itself. (v) At the time of death of Nirmala, presence of Pappu is established in his house. (vi) There is no evidence on record as to in what manner Nirmala died. (vii) Appellant Pappu, who appeared in the witness box as Dw.1, deposed thus: "मेरȣ शादȣ िनम[ला बाई के साथ 10 साल पहले हई थी। िनम[लाबाई ु Ǿपिसंह के साथ भाग गई थी। िनम[लाबाई के बाप गुलाबचंद ने Ǿपिसंह के यहां से आने के बाद कुछ Ǒदन अपने घर रखकर Ǒफर मेरे यहां भेजी थी। उसके ǒपता ने कहा था Ǒक मेरȣ लडकȧ को तुà हारे साथ भेज रहा हं Ǒफर भी अगर ये कभी मर जायेगी तो मɇ तुà हारे ǔखलाफ काय[वाहȣ ू नहȣं कǾंगा। Ǒफर एक ः टाà प िलखकर Ǒदया था। जो ः टाà प ूदश[ डȣ 1 है। ǔजसकȧ नकल ूदश[ डȣ 1-ए है Ǒफर इसको एक रोज टÒटȣ उã टȣ लग गई थी। Ǒफर लडकȧ के बाप के पास मɇने टेलीफोन Ǒकया। टेलीफोन करवाया Ǒक तेरȣ लडकȧ ख× म हो चुकȧ है। उसे उã टȣ दः त हए थे। Ǒफर ु उसका बाप नहȣं आया। Ǒफर सरपंच ने ओर गांव वालɉ ने िमलकर उसका दाग लगवाया।" In his cross examination he admitted that at the time of cremation he was not in the village. 5. It is well settled that where an offence like murder is committed in secrecy inside the house the initial burden to establish the case would undoubtedly be upon the prosecution, but the burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on inmates of the house to give a cogent reason as to how the incident occurred. In the instant case the appellant although offered explanation about the incident yet his absence at the time of cremation pursuades us to think that there was some foul play. Considering the fact, incorporated in the 5 FIR by Gulab Chand father of Nirmala, that Nirmala might have committed suicide, this possibility cannot be ruled out that after Nirmala eloped with Roop Singh, appellant would have harassed her. 6. Although the prosecution failed to prove that death of Nirmala was homicidal yet there is overwhelming evidence to establish that Nirmala's life was made intolerable by appellant. The cruel conduct of appellant drove Nirmala to commit suicide. Thus the offence of abetment, punishable under section 306 IPC is exfacie made out against appellant Pappu. The prosecution however failed to prove charge under section 302 IPC against appellant. 7. That takes us to the charge under section 201 IPC. Section 201 presents a case of accession after the fact. According to Lord Hale, “an accessory after the fact may be, where a person knowing a felony to have been committed, receives, relieves, comforts or assists the felon.” The ingredients of an offence under section 201 IPC are:- (i) that an offence was committed, (ii) that the accused knew or had reason to believe that such an offence has been committed, (iii) that the accused caused evidence thereof to disappear and (iv) that the accused caused disappearance of evidence with the intention of screening the offender from legal punishment. 6 Bearing this legal position in mind when we scan the facts of the instant case, we find that appellant Pappu, who was not present at the time of cremation, cannot be held guilty for the offence under section 201 IPC. 8. For these reasons, we partly allow the appeal and instead of section 302 we convict the appellant under section 306 IPC. Looking to the fact that appellant has already undergone confinement for a period of more than five years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Pappu, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. We however acquit the appellant of the charge under section 201 IPC. The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/