Rohtash Kumar vs State Of Haryana

2. Facts and circumstances as per the prosecution in brief, are as under:

B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her mother, Smt. Dhanpati Devi (PW.3), stating that in the previous evening, the appellant Rohtash had come to meet her in the hostel at 8.00 P.M. and had told her that he would appear in the Family Court at Rohtak on 3.9.2004, to make his statement for getting the divorce.

D. Sube Singh (PW.1), had gone to the police station and lodged a complaint giving all the details, also stating that the appellant might have committed the said offence, as she had scratch marks on her neck, as well as on her breasts.

E. In view of the complaint made by Sube Singh (PW.1), an FIR was registered (Ex.P-12). Necessary investigation was conducted, statements of witnesses were recorded, and the postmortem examination on the dead body of Sonia (deceased) was also performed. The appellant was arrested only on 8.9.2004. The articles collected from the place of occurrence and samples taken from the appellant, particularly, specimens of his hair etc., were sent to the Forensic Science Laboratory, Madhuban, for the preparation of an FSL report. After completion of the investigation, a chargesheet was filed against the appellant in court.

F. After committal proceedings, charges were framed against the appellant under Sections 302 and 404 IPC. The prosecution examined 21 witnesses in support of its case, including the parents and relatives of the deceased, as well as Dr. Virender Yadav (PW.4), Ms. Anita Dahiya, the then Chief Judicial Magistrate, Faridabad (PW.17), Dr. O.P. Sethi, (PW.21), and SI Vinod Kumar (PW.20), the investigating officer. Some of the cited witnesses were given up, and a large number of documents etc., were filed.

G. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.’), and all the incriminating material/circumstances were put to him one by one. He denied each allegation levelled against him by repeatedly stating, “It is incorrect.” The appellant did not himself, adduce any evidence in defence.

H. Aggrieved, the appellant preferred an Appeal before the High Court, which has been dismissed vide impugned judgment and order dated 5.2.2009.

3. Dr. Sushil Balwada, learned counsel appearing on behalf of the appellant has submitted, that there was no eye-witness to the occurrence and that the prosecution had failed to prove and meet the parameters laid down by this Court for conviction in a case of circumstantial evidence. Even if there had been some discord in their marriage, they had agreed to separate mutually and the second motion of the Divorce Petition filed by mutual consent, had been fixed for next day i.e. 3.9.2004. Thus, there had been no occasion for the appellant to commit the offence. The material witnesses to the incident, particularly Ghanshyam and Arjun, who had been working as the Guard and Cook respectively in the Girls’ hostel, and Mahender (Attendant) of the Taneja Guest House, where the appellant is alleged to have stayed under a fake name, have not been examined. The prosecution was under an obligation to examine each of them. The evidence of Jagatpal (PW.2), a hostile witness, could not have been considered at all. In light of the facts of this case, the theory of “last seen” together cannot be applied. Furthermore, the prosecution has created an entirely improbable story to the effect that after killing Sonia, the appellant had taken away her mobile phone, and had in the evening on the same day, telephoned his mother-in-law Dhanpati (PW.3), as well as several other relatives of Sonia, making an extra- judicial confession stating that he had killed Sonia, and that he would now himself commit suicide. The recovery of mobile phone from Itarsi (M.P.) cannot be relied upon, as this place is far away from Faridabad. There are material inconsistencies in the statements of the witnesses. The chain of circumstances is not complete. The prosecution must prove its case beyond reasonable doubt, and cannot take advantage of the weaknesses in the case of the defence. Thus, the appeal deserves to be allowed.

On dissection, the muscle of the neck was contused with hemorrhage with a fracture of the thyroid cartilage, and a fracture of the tracheal rings with blood clots in the trachea. The adjoining muscles and upper chest muscles were contused extensively with blood clots, with bilateral fractures of the clavicle bone and the upper second and third ribs.

36. In view of the aforesaid depositions, facts emerge as under:-

37. In view of the aforesaid factors, the Trial Court, as well as the High Court, have convicted the appellant and awarded the sentences as referred to hereinabove.

So far as the inconsistencies in the depositions of the witnesses are concerned, none of them can be held to be material inconsistency.

42. The facts so established by the prosecution do not warrant further review of the judgments of the courts below by this court. The appeal lacks merit and is, accordingly, dismissed.

……………………………...J. [DR.

[DIPAK MISRA] NEW DELHI;

MAY 29, 2013