1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT 1. D.B. Criminal Leave to Appeal No.39/2008 State of Rajasthan vs. Bhanwara Ram. 2. D.B. Criminal Revision Petition No.89/2008 Gajeh Singh vs. State of Rajasthan & Anr. DATE OF JUDGMENT ::: 26th March, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN, J. Mr.VR Mehta, Public Prosecutor. Mr.GR Punia, for the petitioner. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned public prosecutor and learned counsel for the petitioner/complainant. D.B. Criminal Leave to Appeal No.39/2008 has been preferred by the State against the judgment of acquittal dated 7.11.2007 passed by learned Sessions Judge, Jodhpur in Sessions Case No.200/2005 whereby the learned trial court acquitted the accused respondent from the charges under Section 302 IPC and in 2 alternative under Section 304B IPC. D.B. Criminal Revision Petition No.89/2008 has been preferred by the complainant/petitioner to challenge the same judgment of acquittal dated 7.11.2007. As per the prosecution case, a written report was submitted by the complainant Gajeh Singh in Police Station, Bhopalgarh alleging therein that his daughter Suman's marriage took place on 21.11.2002 with the accused Bhanwara Ram in accordance with Hindu rites. Just after marriage, accused Bhanwara Ram and his family members started harassing his daughter Suman and started even beating her. The complainant tried his best to settle the dispute and the accused admitted his guilt and he kept his behaviour proper for some time but again he started beating Suman. Accused used to say that Suman's father is Principal and, therefore, Suman should bring tractor or jeep from her father. Complainant tried his best to impress the accused for not demanding such items but the accused thereafter started demanding Rs.1 lakh and told Suman that in case, she will not bring Rs.1 lakh, she will not be allowed to live in the house. On the occasion of Raksha Bandhan, Suman came to her parents house and the accused Bhanwara Ram himself came to take Suman with her and while leaving the place of the complainant, the 3 accused clearly told that this time, he will kill Suman. He also abused complainant's wife. According to the complainant, on last night, complainant's son Mahendra informed that Suman fell ill (at her husband's home), then the complainant immediately rushed to the Village Bagodia and there he found that the dead body of Suman was lying in the chowk of accused. He found injuries on the face, neck, cheeks, hands and legs of Suman. In the written report, the complainant mentioned that it appears that Suman has been killed by hanging her and it was done by the accused Bhanwara Ram and Ram Lal and their family members. On the said report, a criminal case no.111/2005 under Sections 304B and 498A IPC was registered. During investigation, photographs were taken, body of Suman was sent for post mortem which was conducted by the Medical Board, statements of witnesses were recorded, site inspection report was also prepared and accused was arrested. After investigation, the police filed challan against the accused under Section 498A and 304B IPC and in the alternative, under Section 302 IPC in the Court of Judicial Magistrate, Pipar City, Jodhpur. The case was committed to the Court of Sessions Judge, Jodhpur for trial for offence under Section 304B IPC and in alternative, under Section 302 IPC and charge under Section 498A IPC was dropped. The accused denied the 4 charges and sought trial. At the trial, the prosecution produced PW1 Smt.Keshu Devi, PW2 Gajeh Singh, PW3 Mahendra, PW4 Gulab Chand, PW5 Hanuman Singh, PW6 Hema Ram, PW7 Smt. Sukhi, PW8 Babu Ram, PW9 Guman Singh, PW10 Mangu Khan and PW11 Dr.Bhagwati Prasad Sharma and in documentary evidence produced 32 documents. The accused was examined under Section 313 CrPC and in his statement, the accused stated that he has been wrongly implicated in this false case. He stated that he did not kill his wife Suman nor she has committed suicide. She died during fits of Epilepsy. He also produced witnesses DW1 Mohani and DW2 Gutti Devi in defence. The trial court held that the prosecution failed to prove that the victim was killed by the accused by strangulation nor could prove that victim Suman was ever harassed for dowry or the accused has committed any cruelty upon the deceased and due to that the victim died unnatural death. Learned Public Prosecutor and learned counsel for the petitioner/complainant submitted that the death of victim is not natural death and it was unnatural death. She had injuries on her body which is proved from the post mortem report as well as from the statement of 5 PW11 Dr.Bhagwati Prasad. Witnesses PW1 Keshu Devi, mother of deceased, PW2 Gajeh Singh, father of deceased and PW3 Mahendra, brother of deceased, clearly proved the fact that the accused used to harass deceased Suman and used to demand several items from her. PW1 Keshu Devi clearly stated that the accused, at the instigation of his brother's wife used to beat Suman and accused demanded tractor through Suman. She further stated that at the time of Raksha Bandhan, Suman came to her house and remained there for 10 days and accused Bhanwara Ram came to take Suman back to his house and while sending back Suman with accused, PW1 Keshu Devi told accused that Suman told her that because of instigation of Mohani (accused' brother's wife), accused may kill Suman. Accused Bhanwara Ram assured that there will be no complaint from him. On this assurance, Suman was sent with accused. She further stated that she found injuries on face, fingers, neck and knees of deceased on the fateful day. The same is the statement of other two witnesses PW2 Gajeh Singh and PW3 Mahendra. In view of the above statements supported by medical evidence and the evidence of the doctor, it is clear that Suman was killed by accused Bhanwara Ram. We considered the submissions of learned Public Prosecutor and learned counsel for the petitioner/ complainant and perused the record also. 6 It appears from the post mortem report Ex.P/32 that the cause of death in the opinion of medical board is due to Asphyxia which is “probably due to Smothering”. The victim died within 24 hours of commencement of post mortem. As per the facts mentioned in the post mortem report about external appearance of the deceased, she was Stout and as per the statement of PW11 Dr.Bhagwati Prasad Sharma, the victim's dead body had three (3) injuries which are two small abrasions on the neck in right side and one bruise 1 cm x 0.5 cm near left elbow. These injuries were anti mortem. Cause is not due to above injuries. As per the defence version, the victim was suffering from the disease of Epilepsy and she died in fit of Epilepsy. PW2 Gajeh Singh – Complainant, father of deceased, in his cross examination admitted that when he reached to the house of accused Bhanwara Ram, he found Suman dead and on enquiry, he was told by neighbour Ramlal's mother Mohani that Suman was taking her meals and all of a sudden, she fell sick (due to epilepsy) and fell down and she also told that Suman found difficulty in breathing and her teeth were tightly fixed. The same is the statement of PW3 Mahendra, brother of deceased in his cross examination and he admitted that when he reached on the spot, he was told by all the persons who reached before him that his sister Suman suffered a fit 7 of Epilepsy and due to that, she died. The Investigating Officer PW9 Guman Singh in his statement stated that from the statement of all the witnesses, he found that the victim was suffering from the disease of Epilepsy. Though witnesses PW1 Keshu Devi, mother of deceased, PW2 Gajeh Singh, father of deceased and PW3 Mahendra, brother of deceased, all stated that victim Suman was not suffering from disease of Epilepsy but it appears that the persons who reached before these three witnesses reached, they saw fit of Epilepsy in the victim Suman and this fact was told by those persons to victim's father and brother that Suman died in the fit of Epilepsy when she was taking her meals and some efforts were made to control the fit of Epilepsy by family members of the accused and the accused himself. Most important evidence in this case is PW11 Dr. Bhagwati Prasad who is prosecution witness and in cross examination, he stated that the family members of accused came to him and told him that Suman has suffered attack of Epilepsy and he (doctor) went to house of accused and found Suman dead. There is no reason to disbelieve this statement of trustworthy witness and in view of this statement of prosecution witness, it is safe to rely upon the statement of witnesses PW7 Smt. Sukhi and PW8 Babu Ram who stated that Smt. Suman died due to attack of Epilepsy. 8 Prosecution witness PW7 Smt. Sukhi is neighbour of accused and living hear the house where the incident took place. She stated that when she heard shouts of accused Bhanwara Ram, she went in the house of Bhanwara Ram and she found Suman lying there in the state of Epilepsy and accused Bhanwara Ram was standing there. Bhanwara Ram went to call the doctor immediately and she along with other persons tried to open the mouth of Suman. Witness Smt. Sukhi was declared hostile and in her cross examination, she stated that she did not gave statement before the police in Ex.P/29 that Bhanwara Ram was strangulating the victim etc. When she was cross examined by the counsel for the accused, she stated that Suman was suffering from disease of Epilepsy and she fell unconscious several times before also. Accused never misbehaved with victim Suman. She stated that there is common wall between her house and house of Bhanwara Ram. PW8 Babu Ram stated that the victim was suffering from the disease of Epilepsy and she died due to that disease. He was also declared hostile and he denied the statement given to the police involving the accused in the crime. He stated that Suman was suffering from the disease of Epilepsy and he is a neighbour of accused. Coupled with the above evidence of prosecution witnesses PW7 Smt. Sukhi, PW8 Babu Ram, PW9 Guman Singh, Investigating Officer as well as statements of 9 victim's mother, father and brother, it appears that the victim was suffering from the disease of Epilepsy, then if we look into the post mortem report and the statement of the doctor, then it is clear that the victim has not died because of any of the injury which was noticed by the doctors and which is clear from the statement of PW11 Dr. Bhagwati Prasad who stated that there were only two abrasions in the left side of neck and one bruise on the left elbow of the deceased. PW11 Dr.Bhagwati Prasad clearly stated that during status of Epilepsy, there may be natural Smothering. He also stated that the family members of the accused came to his house and told him that victim Suman has attack of Epilepsy, therefore, he came to see victim Suman. He further stated that he in fact went to the house of deceased but when he reached there, victim Suman was already dead and he advised them to take the victim of the hospital. This statement corroborates the statement of prosecution witnesses PW7 Smt. Sukhi and PW8 Babu Ram who stated that the accused when to call the doctor when he saw the attack of Epilepsy upon victim Suman. Witness PW5 Hanuman Singh, real uncle of the deceased, merely stated that he got the information that Suman has died and he was witness to the panchnama Ex.P/2 and report about dead body Ex.P/3 and he was witness in the report Ex.P/4 by which the body of deceased was handed over. In his cross examination, he 10 stated that he had no knowledge how Suman died. Same is the position in the statement of witness PW6 Hema Ram and they are not witness to the incident directly or to prove circumstantial evidence. In view of the above, the prosecution failed to prove commission of offence by the accused in any manner and the defence case appears to be more probable that the victim was suffering from disease of Epilepsy and she died in the attack of Epilepsy. At this place, we will like to mention that the prosecution's main witnesses PW1 Keshu Devi, mother of deceased, PW2 Gajeh Singh, father of deceased and PW3 Mahendra, brother of deceased, tried their best to improve their statements from the statements which they gave during investigation with which they were fully confronted by the defence side. In view of the above reasons, we do not find any reason to grant leave to appeal in D.B. Criminal Leave to Appeal No.39/2008 and we also do not find any merit in D.B. Criminal Revision Petition No.89/2008 and accordingly, both are hereby dismissed. (BHANWAROO KHAN), J. (PRAKASH TATIA), J. S.Phophaliya