Rajasthan High Court - Jodhpur
Varju Devi vs State on 29 April, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
(1 of 25) [CRLA-1391/2017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.1391/2017
Varju Devi wife of Ramaram, by caste Jat, Resident of Pokrasar,
Police Station Chohtan, District Barmer.
(At present lodged in District Jail, Barmer).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. D.S. Sodha.
For Respondent(s) : Mr. R.R. Chhaparwal, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
JUDGMENT
Judgment pronounced on ::: 29/04/2021
Judgment reserved on ::: 08/02/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as
below vide Judgment dated 09.08.2017 passed by the learned
Additional Sessions Judge, No.2, Barmer in Sessions Case
No.21/2016 (02/2013):
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.5,000/- 2 Months' S.I.
Section 380 IPC Section 7 Years' S.I. Rs.1,000/- 1 Month's S.I.
All the substantive sentences were ordered to run concurrently.
(2 of 25) [CRLA-1391/2017]
2. Being aggrieved of her conviction and sentences, the
appellant has preferred the instant appeal under Section 374(2)
Cr.P.C.
3. Facts relevant and essential for disposal of the appeal are
noted herein below:
4. Siddha Ram (PW-2) lodged a written report (Ex.P/2) at the
Police Station Chohtan, District Barmer on 08.01.2012 at about
07.40 PM. alleging inter alia that he had gone to Gandhi Dham
about 20 days prior, with respect to his job. He got a call from his
family members on 07.01.2012 between 07.00-08.00 PM that in
the evening, his daughter-in-Law Varju Devi wife of Ramaram,
threw his younger son Gogaram, aged 12 years, into the water
tank with the intention to kill him and thereafter, she absconded
from the house with her belongings, etc. It was further alleged
that an enquiry was made and the family members saw some
foot-prints on the basis whereof, they assumed that Smt. Varju
had called an unknown man with a vehicle and then eloped with
him via Netrar-Pokrasar Road. Lakharam, Khemaram, Gangaram,
Nawlaram, Ramaram, Peera Ram and some other villagers were
searching for the accused. The dead body of Gogaram was taken
out from the water tank. His wife called him and gave him this
devastating information on which, he immediately rushed back to
his village. A conjecture was made that Varju suspected that
Gogaram might have seen her in a compromising position and that
is why, she had beaten up Gogaram and then murdered him by
pushing him down into the water tank. While escaping, Varju had
(3 of 25) [CRLA-1391/2017]
also taken away their mobile phone with sim number
7742034032. The golden ear studs worn by the child were also
missing. On the basis of this report, FIR No.8/2012 (Ex.P/24)
came to be registered at the Police Station Chohtan, District
Barmer for the offences under Sections 302, 201 and 120B of the
IPC.
5. The case was assigned to the SHO Ram Singh (PW-9) who
carried out the requisite steps of investigation and prepared site
inspection plan and Panchnama, etc. The child's dead body was
subjected to autopsy at the Government Hospital, Chohtan from
where, a postmortem report (Ex.P/1) was issued opining that
cause of death was asphyxia by drowning. Statements of
concerned witnesses were recorded. The accused appellant was
arrested and acting on the informations (Ex.P/17 & Ex.P/18)
purportedly provided by her to the I.O. under Section 27 of the
Indian Evidence Act, a Nokia mobile phone (Ex.P/8) and the
golden ear-studs (Ex.P/15) alleged to be of the victim, were
recovered. The material articles were forwarded to the FSL for
analysis. After concluding investigation, a charge-sheet was
submitted against the petitioner in the concerned court for the
offences punishable under Sections 302 and 380 IPC. The case
was committed to the Court of the Additional Sessions Judge, No.1
Barmer from where, it was transferred to the Court of the
Additional Sessions Judge No.2, Barmer for trial. Charges were
framed against the appellant for these offences. She pleaded not
guilty and claimed trial. The prosecution examined as many as 22
witnesses and exhibited 34 documents to prove its case. Upon
(4 of 25) [CRLA-1391/2017]
being questioned under Section 313 Cr.P.C., the accused appellant
denied the allegations levelled by the prosecution. She claimed to
be innocent and stated that the child had accidentally fallen into
the water tank and that she had been falsely implicated in this
case. Upon hearing the arguments advanced by the learned Public
Prosecutor and the learned defence counsel and after appreciating
the evidence available on record, the learned Trial Judge,
proceeded to convict and sentence the appellant as above. Hence
this appeal.
6. Shri D.S. Sodha, learned counsel representing the appellant,
vehemently and fervently urged that the entire prosecution case is
false and fabricated. The evidence of the star prosecution witness
Harku (PW-4) is not reliable. The theory of motive as portrayed by
the prosecution that the appellant was involved in some extra-
marital affair and that she murdered the boy so as to cover up her
illicit liaison, is totally concocted because neither any evidence was
collected by the I.O. to prove this allegation nor did any witness
allege so in the evidence during trial. The recoveries shown to be
effected from the appellant are totally fabricated. The allegation
that the appellant went absconding after the incident, is totally
false because she was kept confined at Police Station immediately
after lodging of the report. Marriage of the appellant was
soleminsed with Ramaram (PW-7) (brother of the deceased) about
7-8 months ago who was not happy with the relationship and the
appellant was being regularly harassed and humiliated in the
matrimonial home. The family members became apprehensive
that the appellant may initiate police action against them. In the
(5 of 25) [CRLA-1391/2017]
meantime, the unfortunate accident occurred and taking
advantage thereof, the appellant has been roped into the case as
a preemptive measure. On these submissions, Shri Sodha urged
that the impugned Judgment deserves to be quashed and set
aside and the appellant is entitled to be acquitted of the charges.
7. Per contra, learned Public Prosecutor vehemently and
fervently opposed the submissions advanced by Shri Sodha. He
urged that the minor witness Harku (PW-4) had no reason
whatsoever to falsely implicate the appellant for the murder of her
brother Gogaram. The theory put-forth by defence that Gogaram
accidentally fell into the water tank is totally fabricated. The
opening of the water tank is very small and it is impossible to
believe that the child could accidentally fall into such a small
aperture. The conduct of the appellant in absconding from the
matrimonial home immediately after the incident, gives a strong
indication of her guilty state of mind. While escaping, she stole
and took away the mobile phone belonging to her matrimonial
relatives which was recovered at her instance during investigation.
The golden ear-studs worn by the victim were also stolen by the
appellant and the same were also recovered by the I.O. on the
basis of the information supplied by her under Section 27 of the
Evidence Act. The appellant failed to offer any explanation as to
how she came into possession of the mobile and the ear-studs of
the child and this circumstance by itself is sufficient to hold her
guilty. On these grounds, learned Public Prosecutor sought
dismissal of the appeal.
(6 of 25) [CRLA-1391/2017]
8. We have given our thoughtful consideration to the
submissions advanced at bar. Carefully perused the impugned
Judgment and, thoroughly re-appreciated the evidence available
on record.
9. Suffice it to say that the fact regarding the appellant having
been married to Ramaram (elder brother of the deceased) about 8
months before the incident is undisputed. As the marriage of the
appellant had been solemnised in the family of Siddharam (PW-2)
just 8-10 months ago, there would have to exist very strong
motive for the appellant to have murdered her own young
brother-in-law because no sane human-being could, without a
strong reason, be expected to take such a drastic step.
Thus, firstly we proceed to analyse the evidence of the
material prosecution witnesses regarding motive attributed to the
appellant for committing the offence and the ocular testimony as
well. The prosecution has alleged that the appellant was indulged
in some kind of illicit affair with another man and thus, she
wanted to escape from the matrimonial home. The victim
Gogaram was a stumbling block in her way and that is why, the
appellant eliminated him in the manner alleged.
10. Siddharam (PW-2) the first informant, made a bald allegation
in his evidence that Varju murdered his son because she was
involved in an affair with some other person. However, he did not
elaborate the foundation for making such an aspersion. A
suggestion was given to the witness in cross-examination that the
appellant was being harassed and humiliated in the matrimonial
(7 of 25) [CRLA-1391/2017]
home on account of demand of dowry which the witness refuted.
However, at the conclusion of his statement, the witness admitted
that whatever allegations he was levelling in his statement, were
hearsay. Thus, the evidence of this witness does not provide any
incriminating material to establish motive against the appellant.
11. Sita Devi (PW-3), mother-in-law of the appellant herein and
the mother of the deceased Gogaram, did not utter a single word
in her sworn testimony that the appellant herein was involved in
some kind of illicit affair or that she wanted to desert Ramaram.
Therefore, no inference of motive can be attributed to the
appellant from the evidence of this witness as well. As a matter of
fact, as the women of the family would be the best persons to
observe any suspicious activity of one amongst them being
involved in something fishy. As Sita Devi did not observe anything
suspicious in conduct of the appellant, manifestly, the whole
motive theory has to fail.
12. Harku (PW-4) is the most important witness of the
prosecution because she was depicted to be the sole eye-witness
of the incident. She was a child aged 15 years at the time of
incident. She alleged that her elder brother Ramaram (PW-7) was
married to the appellant about 8-9 months earlier. She was one
amongst the four children of her parents. On 07.01.2012, when
she came back from school, she saw that her sister-in-law Varju
had dunked her brother Gogaram into the water tank built inside
the courtyard of their house. Only Varju and Gogaram were
present in the house when she returned home from school. When
(8 of 25) [CRLA-1391/2017]
she entered the house, she heard the fervent cries of Gogaram
and got alarmed. She told Varju that Gogaram was screaming on
which, Varju threatened her that she should keep quiet else she
too would be killed. Varju told her to bring the she-camel from the
fields. Her elder sister Kunani also reached home just behind her.
She went to fetch the she-camel and returned home at about 6 O'
clock and saw her mother Sita Devi (PW-3) and her brother
Ramaram (PW-7) looking out for Gogaram. Her mother asked the
witness about Gogaram, upon which, she immediately divulged
that Varju Devi had pushed Gogaram into the water tank. Her
mother called Lakharam, Gangaram and Ramaram who checked
the water tank and saw Gogaram lying therein but by that time,
he had passed away. Varju fled away in the meantime. The
witness also alleged that Varju used the mobile phone of her
brother Gogaram to secretly talk to some person. The SIM number
of Gogaram's mobile phone was 7742034032. Varju took away the
said mobile phone while leaving the house. She also took away
the golden ear-studs worn by her brother Gogaram. Varju killed
her brother Gogaram because she wanted to elope with some
other man. Her brother did not want to give the mobile phone to
Varju.
In cross-examination, the witness stated that her school was
about 3 kms. away from her dhani. She had overheard Varju Devi
talking to another man on the mobile phone about 5-6 days before
the incident. Her elder sister Kunani was studying in X Standard.
She used to accompany Kunani while going and coming back from
school. On the day of the incident, Kunani had walked slowly and
thus, she could not keep pace with the witness and reached home
(9 of 25) [CRLA-1391/2017]
about half an hour late. The witness admitted that when Kunani
came home, she was not present there because it took her half an
hour to fetch the she-camel. She went to search the she-camel in
the nearby dhani which was about a kilometer away from her
home. She did not tell any person in the nearby dhanis that
Gogaram had been killed because she felt intimidated by the
threat given to her by Varju. As soon as she returned to her dhani
from her school, she heard the cries of Gogaram. Her mother and
sister Kunani went to look out for Ramaram, Lakharam and
Gangaram whose dhanis are at a distance of about half a
kilometer from their dhani. She denied the suggestion that Varju
was being harassed in the matrimonial home on account of
demand for dowry and that she had been turned out of the
matrimonial home on this count. She also denied the suggestion
that a panchayati was held to resolve the dispute. She claimed to
have seen Varju pushing Gogaram into the water tank. She did
not try to save him because Varju had threatened her. She also
explained the reason why she did not raise an alarm even though
Purkharam's dhani was adjacent to theirs. When she came back
with the she-camel, Varju was present in the house and her
mother and sister were searching for Gogaram.
13. Kunani (PW-5) stated in her evidence that Varju was her
Bhabhi (sister-in-law). On 07.01.2012, her younger sister Harku
reached home from school earlier. When she reached home, Harku
had gone to fetch the she-camel. Her mother had gone to the
house of Joraram because her brother Ramaram (PW-7) used to
work there. Her mother came back at about 06.30 PM. When the
(10 of 25) [CRLA-1391/2017]
witness reached home, her Bhabhi Varju was present there. Her
sister Harku informed her that Gogaram had been pushed into the
water tank by Varju. Thereafter, they went to fetch Ramaram,
Lakharam and Gangaram who took out Gogaram from the water
tank. Gogaram had died by that time. Meanwhile, Varju fled from
the house. Gogaram was having the mobile phone which Varju
wanted to use for calling someone. Gogaram did not give the
phone to Varju and thus, he was killed. Varju wanted to elope with
some other man by deserting her brother Ramaram and that is
why, she killed Gogaram. While escaping, Varju took away the
mobile phone and golden ear-studs of Goga Ram. In cross-
examination, the witness admitted that she was studying in Class
X. When she returned home from school, Varju was present there.
Her mother came home after half an hour. Neither Varju talked to
her nor did she try to make conversation with her. They did not
have any issues with each other. For about half an hour after her
mother had returned, the witness did not do anything and kept
sitting idle. When her sister Harku came back with the she-camel,
she informed them that Varju had thrown Gogaram into the water
tank. Before receiving this information, the witness and her
mother did not make any effort to look out for Gogaram. Usually,
when she returned from school, Gogaram would be present in the
house. On the day of the incident, she did not notice Gogaram but
still, she did not ask Varju of his whereabouts. After Harku came
home and told them about the unfortunate event, she and her
mother approached Ramaram, Lakharam and Gangaram whose
dhanis were located at a distance of about half a kilometer. The
water tank was constructed in the dhani but was at a little
(11 of 25) [CRLA-1391/2017]
distance from the Farsa (a kind of room). The witness denied the
suggestion that disputes were going on between them and Varju
on account of demand for dowry or a panchayati took place in
order to resolve this dispute.
14. Dedaram (PW-6) stated that Sita Devi called him on
07.01.2012 in the evening and told that Varju had thrown her son
Gogaram into the water tank and had fled from home. At that
time, the witness and his driver Ramaram were present at his
house. The witness immediately sent Ramaram with a vehicle to
Sita Devi's house. Ramaram reached there and called him to
confirm that Gogaram had indeed been thrown into the water tank
by Varju and thus, he was coming back to take him along.
Thereafter, the witness and Ramaram reached the spot.
Gogaram's dead body was lying outside the water tank and
Lakharam, Gangaram and 3-4 other persons were standing
nearby. Footprints were visible going from the place of the incident
towards the road. The police arrived and he accompanied them
towards the main road where, they met a driver named Ramesh
who told that he had seen another vehicle going towards the
village Ishrol. The police followed the vehicle. In the meanwhile,
Rajuram and Gangaram arrived there and informed them that the
vehicle was being driven by Shankra Ram and another person,
who was not visible, was sitting behind. The witness imputed that
he had heard that Shankra Ram was having an illicit relationship
with Varju Devi. He alongwith Karnaram attested various spot
documents as Panch Witnesses. He further stated that Varju was
(12 of 25) [CRLA-1391/2017]
arrested by the police in his presence vide arrest memo (Ex.P/7).
He proved the recovery memo of the golden ear-studs (Ex.P/8.).
In cross-examination, he stated that his dhani was located at
a distance of about 2 kms. from the dhani of Siddharam who was
his cousin brother. Ramaram was driving his vehicle for the last
10-15 years. He did not receive any call from Sita Devi prior to
07.01.2012. He had sent his driver Ramaram to verify the
information regarding the incident. When he reached the spot,
Gogaram's dead body had already been taken out from the water
tank. He looked around for Varju Devi. He feigned ignorance
regarding the nature of relations between Ramaram and his wife
Varju Devi, the accused appellant herein. He also denied the
suggestion that Varju was being harassed and humiliated in the
matrimonial home on account of demand for dowry and that a
panchayati was held in this regard.
15. Ramaram (PW-7) is the husband of the appellant herein. He
stated in his evidence that he was married to Varju about 8-9
months before the incident which took place on 07.01.2012. He
had gone to the house of Joraram for labour job. His sisters Harku
and Kunani had gone to their school at Pokrasar. At about 3 O'
Clock, his mother Sita Devi came down to the place where he was
working. Only his wife Varju and his younger brother Gogaram
were present at their home. His mother left for home at about
06.00 PM. His sister called him and told him to reach home
urgently. He reached there and saw Gangaram, Lakharam and
Ramaram (driver of Dedaram) present there and they were pulling
Gogaram out of the water tank. Gogaram was not breathing at
(13 of 25) [CRLA-1391/2017]
that time. When he enquired about the incident, his sister Harku
told him that when she returned from school, she saw Varju
pushing Gogaram into the water tank. Gogaram was screaming for
help. Varju forcibly pushed Gogaram into the water tank and shut
the lid. Harku raised an alarm whereupon, she was also
threatened and was asked to bring the she-camel. Varju fled after
killing Gogaram and while escaping, she took Gogaram's ear-studs
and mobile phone with herself. Varju was indulged in an illicit
relationship with some other persons and she wanted to talk to
them on the mobile phone but Gogaram did not allow her to do
so. In cross-examination, the witness admitted that the decision
of marriage with Varju, was forced down upon him. His uncle
Purkha Ram and aunt Nenudevi had gotten him married with Varju
against his wishes. His aunt Nenudevi was the Bhua (aunt) of
Varju. When he was being made to marry Varju, he protested
because she had eloped with some other man about a month prior
and had stayed with him for about 5-7 days. Despite his
resistance, he was forced to tie the knot with Varju. However,
after his marriage with Varju, he had developed a good conjugal
relationship with her. On the day of the incident, he had gone for
doing labour jobs at Joraram's house which was at a distance of
about 1 km. from his dhani. Joraram used to pay him Rs.200/- per
day for doing masonry work. There was no dispute between him
and Varju before the incident took place. He never saw or heard
Varju talking to unknown men on mobile phone after their
marriage. He stated that Varju had killed and thrown Gogaram
into the water tank based on hearsay. There were no dowry
related issues between him and Varju. He denied the suggestion
(14 of 25) [CRLA-1391/2017]
that a panchayati was held in relation to this dispute. He also
denied the suggestion that Gogaram accidentally fell into the
water tank.
16. The evidence of the witnesses Ashok Kumar (PW-8) and
Swaroop Singh (PW-12) is formal in nature.
The witnesses Lakharam son of Khemaram (PW-14),
Gangaram (PW-13) and Lakharam son of Jagra Ram (PW-17) did
not support the prosecution case and were declared hostile.
17. Pannaram (PW-19) was a witness of the crime scene
reconstruction and proved the Fard Tarika Vaardat (Ex.P/14). In
cross-examination, the witness admitted that when the crime
scene was reconstructed, Varju stated before all present that
Gogaram accidentally fell into the water tank while trying to pull
out water.
18. Dr. Shambhoo Ram (PW-1) was one of the members of the
Medical Board which carried out autopsy on the dead body of
Gogaram. In his evidence, Dr. Shambhoo Ram stated that few
external injuries were noticed on the body of Gogaram when
autopsy was conducted. Two abrasions admeasuring 1X0.25 cm.
Were viible on the sole of the right foot and three small abrasions
admeasuring 1 cm.X0.25 cm. Were seen on the left ear. The cause
of death was opined to be asphyxia caused by drowning. In cross-
examination, the doctor admitted that there was no evidence as
per the postmortem report (Ex.P/1) findings to show that the
deceased was killed and then thrown/pushed into the water tank.
(15 of 25) [CRLA-1391/2017]
19. The investigation of the case was initially undertaken by Ram
Singh (PW-9) and concluded by Kailash Dan (PW-11).
Ram Singh (PW-9) stated that he was posted as SHO, Police
Station Sedwa on 08.01.2012. He was instructed to undertake
investigation of the case. He prepared various formal documents
viz. Panchnama, site inspection plan, etc. He proved the procedure
of investigation undertaken by him, in the following manner:
"tgka ij igys ls Fkkuk pkSgVu dk tkIrk mifLFkr Fkk] ftl ij
funsZ"kkuqlkj fl)kjke dh <kf.k esa e`rd xksxkjke dh yk"k iM+h Fkh]
ftldh yk"k dh QnZ lqjrgky yk"k dh izn"kZ ih 3 xokg nsnkjke]
dj.kkjke dh ekStnw xh esa cukbZ ftl ij lh ls Mh esjs gLrk{kj gS] ,
ls ch o b ls ,Q xokgku ds gLrk{kj gSA e`rd xksxkjke dh yk"k
dk QnZ iapukek :c: iapku eqfrZc fd;k Fkk tks izn"kZ ih 4 gS ftl
ij lh ls Mh esjs gLrk{kj gS o , ls ch] b ls ,Q] th ls ,p o ds
ls ,y iapku ds gLrk{kj gSA ,Dl LFkku ij fl)kjke dk vaxw'B
fu"kku gSA ekSds ij gh ,evks lkgc dks ryc dj e`rd dh yk"k dk
iksLVekVZe djok;k tkdj ckn iksLVekVZe yk"k ifjtuksa dks lqiqnZ dh
QnZ lqiqnZxhukek yk"k izn"kZ ih 5 gS ftl ij lh ls Mh esjs gLrk{kj
gS] , ls ch o b ls ,Q ekSrchjku ds gLrk{kj gSA esjs }kjk ?kVuk
LFky dk uD"kk ekSdk o gkykr ekSdk izn"kZ ih 6 :c: ekSrchjku
nsnkjke o dj.kkjke ds eqfrZc fd;k x;k] ftl ij lh ls Mh esjs
gLrk{kj gS] , ls ch o b ls ,Q ekSrchjku ds gLrk{kj] o th ls ,p
eqyftek ojtwnsoh ds gLrk{kj gSA tSj fgjklr eqyftek }kjk nh xbZ]
bfRryk,a Øe"k% izn"kZ 11] 12] 13 gS ftl ij , ls ch esjs gLrk{kj
gSA o lh ls Mh eqyftek ojtwnsoh ds gLrk{kj gSA"
The evidence of this witness is also, more or less, formal in
nature.
(16 of 25) [CRLA-1391/2017]
20. Kailash Dan (PW-11) was posted as the SHO, Police Station
Chohtan. He was assigned investigation of the case on
09.01.2012. He stated that he arrested Varju vide arrest memo
(Ex.P/7) dated 09.01.2012. It is relevant to mention here that in
the arrest memo, the place of arrest of the accused is mentioned
as Police Station Chohtan. The witness proved the informations
provided by the accused and the recoveries effected in furtherance
thereof, in the following manner:
"tSj fgjklr eqyftek ojtw nsoh us eq>s 27 lk{; vf/kfu;e dh
lwpuk izn"kZ 17 nh ftl ij , ls ch esjs gLrk{kj o lh ls Mh
eqyftek ojtw ds gLrk{kj gSA mDr bfrykuqlkj eqyftek ojtw nsoh
us lksus ds yksax tksM+h ,d cjken djk;sa ftldks tCr dj QnZ tCrh
izn"kZ ih8 eqrhZc dh ftl ij , ls ch o lh ls Mh ekSrfcjku ds
gLrk{kj] b ls ,Q eqyftek ojtw ds gLrk{kj o th ls ,p esjs
gLrk{kj gSA QnZ uD"kk utjh cjkenxh LFky yksax izn"kZ ih9 gS ftl
ij , ls ch o lh ls Mh ekSrfcjku ds gLrk{kj] bZ ls ,Q eqyftek
ojtw ds gLrk{kj o th ls ,p esjs gLrk{kj gSA tSj fgjklr eqyftek
ojtw nsoh us eq>s 27 lk{; dh lwpuk izn"kZ ih18 nh ftldh QnZ
eqrhZc dh ftl ij , ls ch eqyftek ds gLrk{kj o lh ls Mh esjs
gLrk{kj gSA mDr brykuqlkj eqeftek us eksckby uksfd;k cjken
djk;k ftldks tCr dj QnZ tCrh eksckby izn"kZ ih15 eqrhZc dh
ftl ij , ls ch o lh ls Mh ekSrchjku ds gLrk{kj] bZ ls ,Q
eqyftek ojtw ds gLrk{kj o th ls ,p esjs gLrk{kj gSA"
In cross-examination, the witness admitted that the golden
ear-studs were recovered from a field which was open and
accessible to all and sundry. Neither the golden ear-studs nor the
Nokia mobile phone were subjected to identification by any of the
family members.
(17 of 25) [CRLA-1391/2017]
From a bare perusal of the evidence of this witness, it is
apparent that he did not prove the informations provided by the
accused under Section 27 of the Evidence Act in the manner
required by law because, the precise words spoken by the accused
while divulging the alleged informations, were not stated by the
witness when testifying on oath. Furthermore, since the golden
ear-studs were not subjected to identification by any family
member of the deceased, the recovery thereof becomes
insignificant because, it cannot be inferred that the studs were
those of the boy. Otherwise also, we are of the opinion that the
entire story regarding the accused having taken away the mobile
phone and the golden ear-studs of the deceased, appears to be a
piece of a concoction, plain and simple. We have strong reasons
for coming to this conclusion. It may be stated here that when the
Medical Board conducted the postmortem on the dead body of
Gogaram, only three small abrasions were seen on the left side of
his ear. Suffice it to say that if the golden ear-studs had been
snatched by the accused while Gogaram was alive then, he would
have definitely resisted the attempt and would certainly have
significant injuries on both his ears in the process. As per the
evidence of Harku, Kunani and Sita Devi, they could not
themselves take out the dead body of the child from the water
tank and had to call for assistance of the neighbours. Therefore, it
is impossible to believe that the appellant, a young woman of 19
years, would be be in a position to push the boy into the tank and
then extract the golden studs from his ears after drowning him.
Manifestly thus, the entire case of the prosecution regarding the
accused having pushed Gogaram into the tank and then having
(18 of 25) [CRLA-1391/2017]
stolen his golden ear-studs, is nothing but a sheer piece of
concoction.
The formulation of this concoction started right from the time
of drawing up of the FIR wherein, a fictional story was portrayed
that the accused stole the ear studs of the deceased. Likewise, the
story that the mobile phone bearing SIM number 7742034032 was
taken away by the accused appellant and was subsequently
recovered by the I.O. during investigation, is also a piece of
fabrication. In the FIR (Ex.P/24), Siddha Ram claimed that his
family was having only one mobile phone with SIM number
7742034032 and that Varju took away the said mobile phone
while fleeing away after the incident. This allegation as set out in
the FIR is falsified from the evidence of Dedaram (PW-6) who
stated that he received a call from Sita Devi that Gogaram had
been killed by Varju and thereupon, he sent his driver Ramaram to
make an enquiry. Thus, apparently Sita Devi had a mobile phone
available with which, she called Dedaram. As there is positive
evidence that the family of Siddharam owned any one mobile
phone, manifestly, call made to Dedaram must undoubtedly have
been placed from the mobile number referred to in the FIR
(Ex.P/24). That apart, neither the ownership details nor the call
details of the mobile number were collected by the I.O. during
investigation and thus, the truthfulness of the fictional theory
regarding the accused using the phone to call her lovers and she
having taken the same away while fleeing and the purported
recovery thereof is totally falsified. The prosecution witnesses
have also claimed that the mobile phone was of the deceased
Gogaram who would not allow the accused to use the same for
(19 of 25) [CRLA-1391/2017]
calling her lower/s. It is absolutely impossible to believe that in a
large family from rural background, a 10 years old child would be
owning a mobile phone whereas, none of the other family
members had such facility.
21. The theory of motive which the prosecution has portrayed
against the appellant is based on an imputation that she was
indulging in some kind of illicit affair with another man. If at all,
the prosecution was desirous of proving this allegation, the call
details of the mobile phone held by Gogaram which the accused
was allegedly using to call her lover/s, would have provided
corroboration regarding this fact. However, as stated above, the
I.O. made no effort whatsoever to collect the call details of the
mobile phone. Rather, it is quite possible that the call details might
have been found detrimental to the prosecution theory and thus,
the same were intentionally withheld.
On a perusal of the statement of Ramaram (PW-7), the
husband of the appellant herein, it is clear that the witness made
conjectural assumptions that Varju was indulging in illicit affair
with some other person/s and that she wanted to talk to her
lovers by using the mobile phone. Gogaram was not giving her the
mobile phone and was rather acting as a hindrance in her efforts
and that is why he was eliminated. However, on a perusal of
cross-examination conducted from the witness, it is apparent that
he admitted that his marriage with Varju was solemnised under
the pressure of his uncle Purkha Ram and aunt Nenu Devi.
Personally, he was opposed to the marriage. However, after the
marriage, his relations with his wife were cordial. No quarrel ever
(20 of 25) [CRLA-1391/2017]
took place between them. From this admission made by
Ramaram, the theory that Varju was involved in some kind of
affair and that the witness was aware of her infractions, is totally
negated because if the husband knew about the illicit affairs of the
wife, he could not be expected to state that his relations with her
were cordial. Manifestly, if there had been any truth in this
allegation, the accused would have been chastised and the issue
would have been definitely taken up with her maternal relatives.
However, the admission of Shri Ramaram that even though his
marriage with Smt. Varju was solemnised against his desire, later
on, they developed satisfactory conjugal relations, gives a clear
indication against the prosecution theory that the accused was
involved in some kind of illicit affairs.
Thus, upon an overall appreciation of the evidence of the
prosecution witnesses, no inference can be drawn that the
appellant was indulged in any kind of illicit relation or that
exposure of such illicit relations was the motive behind killing
Gogaram.
22. Now, the evidence of Sita Devi (PW-3), Harku (PW-4) and
Kunani (PW-5), the most important three prosecution witnesses
one of whom i.e. Harku is said to be an eye-witness of the incident
and the other two who reached the spot soon after the incident,
needs to be analysed.
23. Sita Devi (PW-3) stated in her evidence that she had gone to
the house of Joraram on the day of the incident. When she came
back, she met Harku at the dhani and she told the witness that
(21 of 25) [CRLA-1391/2017]
Varju had thrown Gogaram into the water tank. She saw the water
tank and lost her senses. Lakharam, Gangaram and Ramaram
were called who might have taken out Gogaram from the water
tank. Her husband was in Rajkot for the past 20-25 days for
labour work and came back after the incident. This witness did not
allege that Varju was suspected of being involved in any illicit
relationship. It is relevant to mention here that Sita Devi did not
state that she called Ramaram on phone and told him of the
incident or that she and Kunani went to fetch Ramaram.
24. Kunani (PW-5) stated that she reached home a little while
after Harku. Her mother came back at about 06.30 PM. At that
time, Harku was present in the house and she told them that
Gogaram had been thrown into the water tank by Varju.
Thereafter, they went to call Lakharam, Gangaram and Ramaram
for help, who came there and took out Gogaram from the water
tank.
In cross-examination, the witness admitted that she did not
see anything unusual when she reached home from school. She
did not tell anything to her mother. Harku came back with the she-
camel and she informed them about the unfortunate incident
whereafter, she and her mother went to call Lakharam, Gangaram
and Ramaram whose dhanis were located at a distance of about
half a kilometer away from theirs.
25. Harku (PW-4), the star prosecution witness, stated in her
evidence that she came back home from school in the evening of
07.01.2012 and saw that Varju had thrown her brother Gogaram
(22 of 25) [CRLA-1391/2017]
into the water tank. When she came home, Varju and Gogaram
were present there. When she entered the courtyard of her house,
she heard the cries of Gogaram. She told Varju that Gogaram was
crying out upon which, Varju threatened her that she too would be
killed if she did not keep quiet and asked her to fetch the she-
camel. Kunani also reached home just after her. She returned
home with the she-camel at about 6 O' clock in the evening. At
that time, her mother and her sister Kunani were looking around
for Gogaram. Her mother asked her about Gogaram to which, she
replied that Varju had thrown him in the water tank. Her mother
called Lakharam, Gangaram and Ramaram who came there and
saw Gogaram lying in the water tank. Varju fled away in the
meanwhile. The witness stated that on the day of the incident, she
and Kunani did not reach home at the same time because Kunani
fell behind as she was walking at a slow pace. When Kunani
reached home, she was not present there. She did not tell any
person of the nearby dhanis regarding Gogaram's fate. We find
that the conduct of this witness is absolutely unnatural and
untrustworthy. Had there been an iota of truth in the allegation
made by the witness that the appellant pushed Gogaram into the
water tank in her presence then, her natural reaction would have
been to immediately rush to her mother or to the people of nearby
dhanis and to apprise them of the incident. From the evidence of
Kunani, Harku and Smt. Sita Devi, it is clear that no attempt
whatsoever was made by these witnesses to check the condition
of Gogaram by looking into the water tank. If at all, Harku had
seen the appellant pushing Gogaram into the water tank, then
she, Kunani and Sita Devi would have definitely made attempts to
(23 of 25) [CRLA-1391/2017]
pull the boy out of the water tank immediately. They could not
have been sure that the boy had passed away and the natural
human reaction would have been to try and pull him out of the
tank. There exist stark contradictions in the evidence of Sita Devi
(PW-3) and the two girls (PW-4 and PW-5) on this aspect. If at all,
the witness Harku (PW-4) had seen her younger brother Gogaram
being dunked into the water tank by the appellant, she would not
have casually gone away to search for the she-camel merely at
the behest of the accused and would rather be expected to raise a
hue and cry and to try and gather the neighbours. If at all, it is
perceived that she was hesitant in approaching the people from
the nearby dhanis, she would have definitely rushed to her sister
Kunani, her brother Ramaram or her mother Sita Devi so that
efforts could be made to save Gogaram. However, it is apparent
from the evidence of Harku (PW-4) that she readily accepted the
suggestion given by the accused and casually went to look out for
the she-camel to a place which was about a kilometer away from
her Dhani. The conduct of the witness in not trying to alarm the
neighbours and in failing to approach her family members to tell
them of the incident so that efforts could be made to save the boy,
brings her testimony under a cloud of doubt.
26. As per the site inspection plan (Ex.P/6), the opening of the
water tank was 1.5 X 1.5 feet. As per the evidence of the material
prosecution witnesses, Gogaram was a boy aged about 12 years
and the accused appellant was 19 years of age at the time of the
incident and thus, it would have been physically impossible for the
appellant to have single-handedly lifted and dunked the boy into
(24 of 25) [CRLA-1391/2017]
the water tank through such a small opening. As per Harku, the
appellant was bare-handed when she pushed Gogaram into the
water tank. If there was any truth in this allegation then, if the
boy was being forcibly pushed into the water tank, he would have
definitely resisted by flailing his arms and legs and in this process,
he would have received scratches/ abrasions all over the body.
However, other than the two abrasions, one on the sole of the
right foot and the other on the left ear, no other marks of violence
were observed by the Medical Board when the postmortem was
conducted on the boy's dead body.
27. In this background, we are of the firm opinion that the case
set up by the prosecution that the appellant dunked the victim
Gogaram into the water tank and thereby murdered him because
she was not given the mobile phone to talk to her paramour/lover,
is absolutely unworthy of credence. The evidence of the star
prosecution witness Harku (PW-4) is totally unreliable. The
allegations set out in the FIR lodged on the basis of her
information, are cooked up and concocted. The assertion of the
prosecution witnesses that the accused appellant absconded after
the incident, is also unacceptable for the reason that she was
arrested on 09.01.2012 i.e. on the very next day of the incident.
The recoveries shown to have been effected at her instance are
totally concocted. The investigation conducted by the police
officials is tainted and unworthy of reliance.
28. In wake of the discussion made herein above, we are of the
firm view that the prosecution has failed to lead convincing and
(25 of 25) [CRLA-1391/2017]
reliable evidence so as to bring home the guilt of the accused. The
appreciation of evidence undertaken by the trial court and the
conclusions drawn in the impugned Judgment for convicting the
appellant herein, are not based on an apropos appreciation of
evidence available on record. Hence, the impugned Judgment
cannot be sustained.
29. As an upshot of the above discussion, the appeal deserves to
be accepted. The impugned Judgment dated 09.08.2017 passed
by the learned Additional Sessions Judge, No.2, Barmer in
Sessions Case No.21/2016 (02/2013) is hereby quashed and set
aside. The appellant Varju Devi is acquitted of all the charges. She
is in custody. She shall be released from prison forthwith if not
wanted in any other case.
The appeal is allowed accordingly.
30. However, keeping in view the provisions of Section 437-A
Cr.P.C., the appellant is directed to furnish a personal bond in the
sum of Rs.15,000/- and a surety bond in the like amount before
the learned trial court, which shall be effective for a period of six
months to the effect that in the event of filing of a Special Leave
Petition against the present judgment on receipt of notice thereof,
the appellant shall appear before the Supreme Court.
31. Record be returned to the trial court forthwith.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J
Tikam Daiya/-
Powered by TCPDF (www.tcpdf.org)
