1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) D.B.Criminal Appeal N0.978/02 Nemi Chand vs. The State of Rajasthan (2) D.B.Criminal Jail Appeal N0.776/02 Nemi Chand vs. The State of Rajasthan under Section 374, Cr.P.C. against the judgment dated 14.8.2002 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Merta in Sessions Case No.40/2002(23/2001) Date of Judgment: May 8th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. K.L. Joshi, Amicus Curiae, for the appellant. Mr. V.R. Mehta, P.P. for the State. Mr. Amitabh Acharya for the complainant.. BY THE COURT( Per Hon'ble Mr.Tatia,J): REPORTABLE 2 These two appeals, one sent from jail, directly to the High Court and another submitted through counsel. Learned counsel for the appellant pleaded no instruction in regular appeal-D.B.Criminal Appeal No.978/02. In both the appeals Amicus Curiae was appointed. The appeals have been preferred by the appellant Nemi Chand against the judgment and order dated 14.8.2002 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Merta in Sessions Case No.40/2002(23/2001), by which the appellant has been convicted under Section 302, IPC and has been sentenced to undergo life imprisonment and a fine of Rs.5000/- has been imposed and in default of payment of fine, to further undergo one year's simple imprisonment. As per the prosecution case, on 28.6.2001, just after mid-night at 2.45 a.m. Shri Jahangir Singh, SHO, Merta City received one information on telephone from Chhagan Lal brother-in-law of appellant-accused that appellant accused 3 Nemi Chand Mali, has burnt his wife and mother after pouring kerosene over them. The report was entered in the Rojnamcha (Ex.P.26) and the information was sent to Jagdish Prasad, ASI on wireless and thereafter, the police reached on the spot and took the injured to the hospital. The S.H.O. Jahangir Khan also reached to Government Hospital, Merta and obtained report about the condition of the two ladies, Smt. Kolki and Smt. Chuka Devi from the doctor and after obtaining report from doctor, recorded parcha-bayan (Ex.P.15) of Smt. Chika Devi at 3.20 a.m. Thumb impression of Smt. Chuki Devi was also obtained on Ex.P.15. In parcha- bayan, Smt. Chuki Devi stated that her husband Nemi Chand poured the kerosene over her and her mother-in-law (mother of the appellant himself) and lit the fire. On the basis of above report, case No.185/01 under Sections 498A and 307, IPC was registered and the investigation started. During investigation, the Investigating Officer Jahangir Khan (PW-14) 4 inspected the site on 28.6.2001 itself and prepared the site report and map which are Ex.P.1 and Ex.P.2. He recovered the tin in which kerosene was there, seized the injured ladies burnt clothes, match-sticks and prepared seizure memo Ex.P.3. He also got the photographs taken there. The witnesses were examined and Smt. Chuka Devi's statement was recorded which is Ex.P.30. The accused was arrested and the arrest memo Ex.P.31 was drawn. Thereafter, the investigation was continued by the new Investigating Officer. During investigation both the ladies Smt. Chuka Devi and Smt. Kolki Devi died. Post-mortem report of Smt. Chuka Devi Ex.P.4 and the post-mortem report of Smt. Kolki Devi Ex.P.24 were obtained . After investigation, challan was filed under Section 498A and 302, IPC against the appellant in the court of Judicial Magistrate, Merta City, from where, the case was committed to the court of Sessions Judge. The charges under Sections 302 and 498A, IPC were framed against the accused, 5 who denied the charges and sought trial. The prosecution produced 15 witnesses including PW-1 Miss Sharda and PW-4 Dinesh, who are daughter and son of appellant and Smt. Chuka Devi and are eye-witnesses, who supported the prosecution case. In total 31 documents were produced, reference of some of which have been given in the preceding paras. The statement of accused under section 313, Cr.P.C. was recorded wherein the accused merely denied the allegations and did not took any specific defence in his statement under Section 313, Cr.P.C. He did not produce any witness in defence. The earlier statements which were recorded during investigation of the witnesses Miss Sharda, Smt. Vimla, Dinesh and Chhagan Lal were exhibited in cross- examination of above prosecution witnesses by the accused. The trial court, after considering the evidence relied upon oral evidence supported by corroborative other evidence and held the appellant guilty under Section 302, IPC. However, acquitted him from charge under Section 498A, IPC. 6 Hence the appellant has preferred these two appeals, one represented appeal and other through jail, against the judgment and order of conviction and sentence dated 14.8.2002 passed by the trial court. The learned Amicus Curiae tried to assail the judgment and submitted that the FIR was the report given by Chhagan Lal on telephone to the SHO, Merta City. On the basis of said information, no FIR was registered and, therefore, the parcha-bayan(Ex.P.15) recorded by the Investigating Officer in the hospital, neither can be FIR nor on the basis of above statement, FIR could have been recorded. It is submitted that there can be one FIR and that was the FIR, report given by ChhaganLal to the SHO Jahangir Khan. It is also submitted that before recording parcha-bayan, no written request was given to the doctor for obtaining the mental condition of the victim. Not only this, the statement of Smt. Chuka Devi has not been recorded in accordance with the Rule 6.22 of the 7 Rajasthan Police Rules which provides that the statement should be in the form of “question and answer”. The procedure has been given in rule 6.22 of the Rajasthan Police Rules, how the statement in such circumstances should have been recorded. The statement was not recorded in the presence of two independent witnesses nor any request was made to any Magistrate for recording the statements of the victims. It is also submitted that the doctor did not examine the victim Smt. Chuka Devi before the statement of Smt. Chuka Devi (Ex.P.15) was recorded and, therefore, it is not proved that Smt. Chuka Devi was in fit condition to give statement. It is also submitted that it has been alleged that the accused and his wife both were sleeping on the roof of the house. In other side, appellant's son, daughter and mother were sleeping. The appellant took his wife Smt. Chuka Devi to ground-floor and thereafter poured kerosene over her. In the 8 said report, there is no mention of the fact existing on the roof at the relevant time. It is also submitted that the kerosene container, match-sticks, burnt clothes were not sealed on the spot and were taken to the police station uncovered. The above articles remained open in the police station and, therefore, those articles were not kept in proper sealed cover and no FSL report was obtained. Therefore, the conviction of the appellant under Section 302, IPC is absolutely contrary to the facts of the case. The learned counsel for the appellant also submitted that the accused has already been acquitted from charge under Section 498A, IPC and, therefore, there was no reason for his killing of his wife. It is also submitted that the allegation of cruelty against the appellant's wife, on the face of it, appears to be false and, therefore, the prosecution, in fact, has suppressed the true facts. The learned public prosecutor vehemently submitted 9 that the prosecution proved the case against the appellant by cogent evidence. It is submitted that there is no reason for the two children of the appellant himself to depose against him so as to implicate him in a case of murder of their mother and their grand-mother. It is also submitted that these two witnesses have been cross-examined at length and from the cross-examination, the witnesses' credibility became more worthy. It is also submitted that the appellant's real brother PW-13 Kuna Ram, though was declared hostile by the trial court but, in cross-examination, he admitted that at the relevant time, the house of the appellant was locked from in- side and cries were coming from in-side the house. When the appellant's brother Kuna Ram was standing outside the house of appellant's brother-in-law Chhagan Lal, his son Dinesh and daughter Sharda also came there. They by use of force, opened the door and found both the ladies burning and this is the case of the prosecution that the accused first poured the 10 kerosene on her wife and tried to burn her and upon which, the appellant's mother went out side the house to call for help, then the appellant forcibly brought his mother inside the house and locked the house from inside and thereafter burnt his wife and also poured kerosene upon his mother Smt. Kolki Devi. When Kolki Devi tried to save her daughter-in-law, the wife of the appellant, she(Smt. Kolki Devi) also caught fire and ultimately she also died and, therefore, this is a case where all the prosecution witnesses proved the fact by their evidence, by eye-witnesses and by the witnesses who reached on the spot when the two ladies were in the appellant's house in burnt condition. It is also submitted that the conduct of the accused is heinous as apparent from the act itself and he burnt two ladies, his wife and mother and more heinous is that to see that the appellant's wife should die and left his own mother to die, he locked the house from inside inspite of serious opposition by his own mother. The appellant without 11 opening the gate, ran from the house through the roof. The medical evidence fully proved the death of the two victims due to burns. We considered the submissions of the learned counsel for the appellant and the learned public prosecutor and perused the record. At the outset we may observe that the statements of PW-2 Sharda, daughter of the appellant and PW-4 Dinesh, son of the appellant, are very reliable and trustworthy and their testimony has not shattered in their long cross-examination. Both the daughter and son of the appellant who are of the age of 14 and 10 years respectively, gave full narration of the facts leading to death of their mother and grand-mother. Both the witnesses clearly stated that in the unfortunate night at 2 a.m., their father was beating their mother. From the voice of shouts, both the children and their grand-mother woke up. Both the children PW-1 Sharda and PW-4 Dinsh pleaded to 12 their father-appellant that do not beat their mother. The appellant gave threat to them and dragged his wife by hair and brought her down to the ground-floor. There he lifted kerosene container of 5 ltrs. and poured the kerosene over his wife. The witnesses' grand-mother and appellant's mother was also there and he poured kerosene on her also. The appellant's mother and the witnesses' grand-mother, opened the main gate of the house and went out shouting. The appellant caught his mother by her hair and dragged her in the house and put the lock over the main gate from inside so that no can escape. Thereafter, he burnt his wife. His mother tried to save the daughter-in-law and in that effort, she also caught fire. Leaving them burning and to die, the appellant ran to the roof of house and went out side the house through pipe. The two minor children PW-1 Sharda and PW-4 Dinesh tried to save their mother and grand-mother but they could not save them and PW-4 Dinesh son of the appellant, through 13 the roof, came outside from the house and went to appellant's elder brother Kuna Ram, whose house was adjacent to the house of the appellant and thereafter, he called his maternal uncle Chhagan Lal. The witnesses' maternal uncle Chhagan Lal and his wife Smt. Vimla came to the house of the appellant. They found the gate locked from in side. The appellant's elder brother Kuna Ram and the brother-in-law, broke open the main gate of the house and with the help of these two witnesses, changed the clothes of the two ladies. At that time, appellant's brother-in-law and his wife enquired from the two ladies, how it happened, upon which they were told that the appellant poured the kerosene over them and burnt them. The statements of above two children witnesses are fully corroborated by the appellant's brother-in-law Chhagan Lal (PW-7) and his wife Vimla (PW-2). Not only this, even when appellant's own brother Kuna Ram (PW-13) did not support the prosecution fully but in his cross-examination, he 14 clearly admitted that when he reached to the house of the appellant, he found the main gate of the appellant's house locked from inside. Appellant's son Dinesh and daughter Sharda were also with them outside the house. They opened the door and they found the two ladies in burnt condition. However, PW-13 Kuna Ram, brother of the appellant, thereafter, stated that upon enquiry from his mother, his mother Smt. Kolki Devi told him that Smt. Chuka Devi burnt herself because of some dispute about the agricultural land. It is stated by Kuna Ram that his mother told that in case the appellant will sale the agricultural land, she will burn herself and die. The statement of Kuna Ram with respect to the event just after the incident and before the death of the two ladies, fully supports the prosecution case. It appears that he did not support the rest of the version of the prosecution, being the witness interested in the appellant. From the statement of PW-13 Kuma Ram it is proved that the appellant's house was 15 locked from inside. Two children of the appellant were outside the house which could have been only if they came out from house by other way and that is through roof. The appellant was not inside the house. The ladies were seriously injured in the locked house. This evidence itself is sufficient to connect the appellant with the crime. The site was inspected in the presence of the witness PW-3 Babu Lal and the kerosene container, burnt clothes of the two ladies, match-sticks were recovered in his presence and there is no reason to disbelieve his statement. In addition to above, the injury report of Smt. Chuka Devi(Ex.P.16) and the injury report of Smt. Kolki Devi (Ex.P.17) fully proved the burn-injuries of two ladies as well as in their injuries reports, there is clear mention of smell of kerosene. The two ladies were examined in the hospital at 3.30 a.m., that is within an hour of the incident and the doctor opined that the duration of the injuries is within three hours. The post-mortem report 16 disclosed that the cause of death is shock as a result of extensive ante-mortem burns. The post-mortem reports say that the burns were sufficient to cause death in the ordinary course of nature. So far as establishing the fact of killing of Smt. Chuka Devi, the wife of the appellant is concerned, that has been established beyond doubt by the prosecution. It is further relevant that the appellant, whose presence in the house has been proved, did not choose to give any explanation when the facts were in his knowledge, how the two ladies burnt. It is settled law of criminal jurisprudence that burden to prove all the facts constituting ingredients of the offence against the accused beyond all reasonable doubt rests on the prosecution but the exception to this is provided under Sections 105 and 106 of the Evidence Act, which places the part of burden of proof on the accused to prove facts which are within his knowledge. The accused did not explain how his wife and mother burnt and where he was, if he was not at his 17 house. As stated above, even that conduct of the appellant is not taken note of, even then in the present case, the prosecution proved the case beyond all doubts that the appellant has committed crime of killing his wife and he is responsible for the cause of death of his mother and he has been rightly convicted and sentenced under Section 302, IPC by the trial court. In view of the above, we do not find any merit in these appeals and the same are hereby dismissed. ( CHAND MAL TOTLA) ,J. (PRAKASH TATIA),J. mlt