Pola Ram vs State
2021 Latest Caselaw 9923 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 982/2012

Pola Ram S/o Shri Kurda Ram, by caste Kumhar, aged 32 years, R/o Lalgarh Jattan, P.S. Lalgarh Jattan, District Sriganganagar (At present lodged in Central Jail, Sriganganagar)

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Rajesh Choudhary, Amicus Curiae (Pro-bono) For Respondent(s) : Mr. Anil Joshi, PP Mr. Jagdish Bishnoi for complainant

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Judgment

Date of Pronouncement :- 01/07/2021 Judgment Reserved on :- 15/03/2021

(Per Hon'ble Mehta,J.)

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 19.10.2012 passed by learned Special

Additional District & Sessions Judge (Women Atrocities & Dowry

Cases) Sriganganagar in Sessions Case No.42/2011:

Offences Sentences Fine Fine Default sentences Sec. 302 IPC Life Imprisonment Rs.2,000/- 6 Months' Additional Simple Imprisonment Sec. 201 IPC Seven Years' SI Rs.1,000/- 3 Months' Additional Simple Imprisonment

(Both the sentences were ordered to run concurrently)

(2 of 26) [CRLA-982/2012]

2. Being aggrieved of his conviction and sentences, the

appellant has approached this Court by way of this appeal under

Section 374(2) Cr.P.C.

3. Facts relevant and essential for disposal of the appeal are

noted hereinbelow:-

The appellant herein was married to Kalawati, D/o Brijlal

Kumhar R/o Mahifwali in the year 2000. Two sons were born from

their wedlock. Smt. Kalawati was working as an A.N.M. and was

posted at the Primary Health Centre, 10 K.D., Village Rawla and

was residing there in the Government accommodation with her

husband and sons. On 22.10.2011, Kalawati's brother-in-law

(Jeth) Liluram (PW-4) called her brother Shri Indraj (PW-1) and

informed him that Kalawati had been abducted. On hearing this,

Shri Indraj (PW.1) alongwith his younger brother Daleep Kumar

(PW-6) and cousin Mahaveer (PW-8) started from their village

Mahifwali and reached 10 K.D. Village Rawla. They made an

enquiry from Pola Ram who replied that in the previous night

between 11.30 and 11.45, a quarrel had taken place between him

(Pola Ram) and Kalawati and thus, he had strangled her to death

and threw the dead body into the D.O.L. canal for destroying

evidence. Enquiry was also made from the Sarpanch of the Village

10 K.D., Rawla who also confirmed the fact that Pola Ram wanted

Kalawati to leave the job of A.N.M., but she was not agreeing to it

and being angered by her resistance, Pola Ram had beaten up

Smt. Kalawati a few times previously. Pola Ram had been

counselled by the family members, but did not mend his ways and

(3 of 26) [CRLA-982/2012]

eventually, Smt. Kalawati was killed and her dead body was

thrown into the canal. Shri Indraj (PW-1) lodged a written report

(Ex.P/1) with the above allegations to the SHO Police Station

Rawla on 22.10.2011 at about 01.15 pm, on the basis whereof, an

FIR No.232/2011 (Ex.P/24), came to be registered at the Police

Station, Rawla for the offences punishable under Sections 302 and

201 IPC and investigation was commenced. It may be mentioned

here that well before the registration of the FIR (Ex.P/24), on

22.10.2011, in the morning at about 6 O' clock, Shri Hansraj

Godara (PW.10), husband of the village Sarpanch, had given an

information to Shri Chandra Prakash, SI (PW.14) that Smt.

Kalawati was missing since previous night and that something

untoward might have happened to her at the hands of her

husband. This information was noted down in Roznamcha Entry

No.887 (Ex.P/51A). Sub-Inspector Shri Chandra Prakash, along

with the police constables proceeded to the village 10 K.D. Rawla

where, the written report (Ex.P/1) came to be submitted before

him by Shri Indraj (PW-1). During the course of investigation, a

photographer was summoned and the place of incident was got

extensively photographed. Site Inspection Plan (Ex.P/2) and

description of the site (Ex.P/2A) were prepared. Following

incriminating articles were seized from the place of the incident

i.e., Government Quarter, Primary Health Centre, where Smt.

Kalawati was residing with her husband and two children:-

(1) a khes (bed cover), a Gudad (a kind of cotton mattress), two

pillow covers, a pouch of tobacco, scissors and a blood stained

water tumbler (Lota), vide seizure memo Ex.P/3,

(4 of 26) [CRLA-982/2012]

(2) broken pieces of bangles and a nose-pin, vide seizure memo

Ex.P/4,

(3) a clump of black coloured hair of a female, vide seizure

memo Ex.P/5.

The Investigating Officer then proceeded to the D.O.A. canal

and prepared a site inspection plan (Ex.P/6) and description

memo (Ex.P/6A). Soil was collected from the place of incident.

Statements of concerned witnesses were recorded under Section

161 CrPC. Search was made in the canal and on 24.10.2011, the

dead body of Smt. Kalawati was found floating near the Towers

Nos.36 and 37 of the K.Y.D. canal. The first informant Indraj

(PW.1) identified the dead body to be of his sister Smt. Kalawati.

The description memo of the dead body (Fard Surat-haal Lash)

(Ex.P/8) and Panchnama Lash (Ex.P/9) were prepared. Site

Inspection Memo of the place of recovery of the dead body

(Ex.P/10) was also prepared. The dead body was sent to the

Government Hospital, Rawla where autopsy was undertaken upon

it by a Medical Board and the postmortem report (Ex.P/37) was

issued. While conducting postmortem, the doctors noticed fracture

of the cricoid cartilage with hematoma formation and compression

of posterior larynx apparatus. The cause of death as opined by the

medical board in the postmortem report, was asphyxia brought

about as a result of multiple ante-mortem bodily injuries. The

appellant was arrested on 31.10.2011 at about 4:30 pm vide

arrest memo Ex.P/39 and certain recoveries were effected at his

instance. After concluding investigation, a charge-sheet came to

be submitted against the accused appellant in the court of Judicial

(5 of 26) [CRLA-982/2012]

Magistrate (First Class), Ghadsana for the offences under Sections

302 and 201 IPC. The incriminating materials recovered by the

Investigating Officer SI Chandraprakash (PW.14) had been

forwarded to the Forensic Science Laboratory from where, FSL

report (Ex.P/44) was received. As the offence under Section 302

IPC was exclusively triable by the Court of Sessions, the case was

committed to the Court of Sessions Judge, Sriganganagar from

where, it was transferred to the Court of Special Judge (Women

Atrocities and Dowry Cases), Sriganganagar where charges were

framed against the accused-appellant in the above terms. He

pleaded not guilty and claimed trial. The prosecution examined as

many as 16 witnesses and exhibited 58 documents to prove its

case. Upon being questioned under Section 313 Cr.P.C. and when

confronted with the circumstances appearing in the prosecution

evidence, the accused denied the same, but he did not choose to

lead any evidence in defence. After hearing the arguments

advanced by the prosecution and the defence counsel, and

appreciating the evidence available on record, the learned trial

court proceeded to convict and sentence the appellant in above

terms. Hence, this appeal.

4. Initially, the appeal was filed as represented appeal, but as

no one appeared to argue the matter on behalf of the appellant,

he was summoned from prison through a production warrant. He

was produced in the Court on 04.02.2020 and with his consent,

learned counsel Shri Rajesh Choudhary was appointed to act and

represent the appellant as an amicus curiae (pro-bono) in this

appeal.

(6 of 26) [CRLA-982/2012]

5. Shri Rajesh Choudhary, learned amicus representing the

appellant vehemently and fervently urged that there is no

evidence worth the name on record of the case so as to connect

the appellant with the crime. The appellant had no motive

whatsoever for murdering his wife. The theory put forth by the

prosecution that the appellant was opposed to his wife working as

an A.N.M., is totally fictitious and conjectural. In this regard, Shri

Choudhary drew the Court's attention to the statement of the first

informant Indraj (PW-1) and more particularly, the cross-

examination undertaken from him wherein, the witness admitted

that his sister (the deceased) was 12th standard qualified when

she was married. The accused-appellant supported her in

procuring the A.N.M. degree. During this period, she used to live

at Abohar and would occasionally visit her matrimonial home. She

got the job of A.N.M. in the year 2010. At that time, she and her

husband used to reside at Ridmalsar. After being assigned posting

in Rawla, she and her husband started living together there. He

thus urges that ex-facie, as the appellant was instrumental in

Smt. Kalawati acquiring the degree of A.N.M. and also made many

sacrifices during this period, he could not carry any grudge against

his wife persuing the job of A.N.M. which was actually coveted by

the family. He urged that the theory of motive attributed by the

prosecution to the appellant for the murder of his wife is thus

negated on the face of the record and as the appellant had no

motive to kill his wife, manifestly, the charge of murder foisted

upon him has to fail. He further submitted that the prosecution

theory that the appellant made an extra-judicial confession before

(7 of 26) [CRLA-982/2012]

the first informant is totally unsubstantiated and inadmissible for

more than one reasons; firstly, because the story itself is prima

facie unbelievable, and secondly, the police had already been

informed about Smt. Kalawati having gone missing from her house

by Shri Hansraj Godara (PW-10), and the police officers had

reached the spot before lodging of the FIR and the said extra-

judicial confession if at all, would have been made in presence of

the police officers and thus, the same would be hit by Section 25

of the Indian Evidence Act. To support the contention that the

extra-judicial confession was actually extracted in presence of the

police officers, Shri Choudhary drew the Court's attention to the

admission made by the Investigating Officer (PW.14) in his

evidence that he reached the place of incident 20 minutes after

making the Roznamcha Entry (Ex.P/51A) which was recorded at

6.00 am whereas, the first informant Indraj (PW.1) in whose

presence the extra-judicial confession was allegedly made,

reached the place of occurrence much later. He thus urged that

the learned trial court was totally unjustified in relying upon the

so-called extra-judicial confession allegedly made by the appellant

to the first informant because apart from the entire theory being

false, the extra-judicial confession, if any, was extracted in

presence of the police officers and hence, the same is

inadmissible. Shri Choudhary further submitted that the learned

trial court was unjustified in placing reliance on the evidence of

the child witness namely Aman (PW.13) because manfiestly, he

had been thoroughly tutored by his maternal uncle and

grandfather to give evidence against the appellant. In this regard,

Shri Choudhary drew the Court's attention to the following

(8 of 26) [CRLA-982/2012]

admissions as appearing in the evidence of the child witness Aman

which are reproduced for the sake of ready reference:-

"izfrijh{k.k }kjk vf/koDrk vfHk;qDr Jh vkse jkoy %&

esjs ikl iqfyl dHkh ugha vkbZA eq>s irk ugha fd esjs ikik dks iqfyl dc

idM+dj ys xbZA iqfyl esjs ?kj dc vkbZ eq>s irk ughaA esjh eEeh dc ejh mldk

eq>s irk gSA esjh eEeh ds ejus dk eq>s vki irk gS eq>s fdlh us ugha crk;kA vkt

eSa esjs ekek ds lkFk vk;k gwaA vHkh eSa vius ikik ds ikl jg jgk gwaA eq>s ekek ds

ikl jgrs ,d lky gks x;k gSA eSa ekek dk dguk ekurk gwa eSa ukuk dk dguk

ekurk gwa tSlk ;s dgrs gS oSlk djrk gwaA eq>s xokgh nsus ds fy, ukuk us dgk FkkA

tSlk ukuk us dgk oSls gh xokgh ns jgk gwaA essjs dks esjs eEeh ls ejus ls igys iqfyl

ds ikl ugha ys x, eEeh ds ejus ds ckn Hkh iqfyl ds ikl ugha ys x,A eq>s o esjs

HkkbZ dks o ukuk ge iqfyl ds ikl c;ku nsus ds fy, x, FksA tc Fkkuk esa eq>s ys

x, rc esjs firk Hkh Fkkus esa ekStwn FksA esjs firk ls Fkkus esa ckr ugha gqbZ FkhA ukuk us

esjs firk ls feyus ugha fn;kA eSaus iqfyl dks ;g ugha dgk fd esjs ikik dks D;ksa

idM+k gSA esjh eEeh dh e`R;q ds nwljs fnu eq>s Fkkus ys x, FksA fQj nksckjk Fkkus

ugha ys x;sA tks ,d ckj Fkkus tkus ds ckn vkt rd nksckjk Fkkus ugha x;kA esjs

lkeus iqfyl us esjs ukuk o ekek ls iwNrkN dh FkhA iqfyl okyksa us esjs ls dqN ugha

iwNk FkkA eq>s fgUnh i<uh vkrh gSA eq>s Fkkuk esa dqN i<k;k ugha FkkA fdlh us dqN

crk;k Hkh ughaA eq>s Fkkus esa pk; ugha fiykbZA eSa Fkkus esa ikuh ihdj okfil vk x;k

FkkA iqfyl us eq>s dgk fd vkidks xokg cuk;sxsa o dksVZ HkstsaxsA iqfyl us crk;k fd

dSlh xokgh nsuh gSA"

As per Shri Choudhary, the admissions as appearing in the

evidence of child's evidence discredit his evidentiary worth. He

further urged that the links in the chain of circumstanial evidence

(9 of 26) [CRLA-982/2012]

consisting of recovery of the motorcycle (Ex.P/14) and the blood

stains allegedly collected from the silencer thereof (Ex.P/15) and

the recovery of the blood stained shirt (Kamiz) (Ex.P/16), made at

the instance of the appellant are also fabricated because the

accused-appellant was shown arrested after nearly eight days of

the incident and it is impossible to believe that he would preserve

the incriminating blood stained articles for so many days despite

having the opportunity to dispose of the same. He urged that so

far as the blood stains noticed on the Khes and the pillow covers

seized from the house where the accused and the deceased were

residing are concerned, they are explainable because the

deceased was a young lady and the possibility of the blood stains

having occurred during her menstrual cycle cannot be ruled out.

He thus submitted that the conviction of the appellant is

unsustainable as the appreciation of the evidence undertaken by

the trial court below is totally laconic & conjectural and that the

findings recorded in the impugned judgment do not stand to

scrutiny. On these submissions, he sought acceptance of the

appeal craving acquittal for the appellant.

6. Per contra, learned Public Prosecutor and the learned counsel

representing the complainant vehemently and fervently opposed

the submissions advanced by the learned counsel representing the

appellant. They submitted that the appellant and the deceased

being spouses were living together in the same government

accomodation. The deceased went missing in the night intervening

21st and 22nd October, 2011. The information regarding the lady

(10 of 26) [CRLA-982/2012]

having gone missing was given to the Police Station by Shri

Hansraj Godara (PW-10) at 6 O' clock in the morning. Hansraj

clearly stated in his evidence that Pola Ram was habituated to

quarelling with his wife and also used to cast aspersions on her,

whereas the character of deceased Kalawati was absolutely

aboveboard. They further submitted that blood stained articles,

viz. the pillow covers and the scissors used to kill the deceased

were recovered from the spot (Ex.P/3). The Salwar collected from

her dead body was seized. The blood stained silencer of the

motorcycle and the shirt worn by the accused at the time of the

incident were recovered at his instance. All these articles were

analyzed at the Forensic Science Laboratory and they tested

positive for AB group blood. The accused was under an obligation

to furnish an explanation as to how all these articles including the

bedding etc. got stained with the same blood group as that of the

deceased Smt. Kalawati. However, he failed to offer any

explanation whatsoever in this regard. They further urged that the

occular testimony of the child witness Aman (PW.13) is totally

convincing. The child had no reason to give evidence against his

own father. On these contentions, learned counsel for the

complainant and learned Public Prosecutor prayed for affirmation

of the guilt of the accused, as recorded by the trial court vide the

impugned judgment.

7. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

(11 of 26) [CRLA-982/2012]

8. The deceased Kalawati and the appellant were married in the

year 2000. Smt. Kalawat was selected on the post of A.N.M. and

was living in the government accomdoation at the Primary Health

Centre, Rawla with the appellant and her children. Smt. Kalawati

went missing from home in the night intervening 21 st and 22nd

October, 2011, whereupon the police was informed. On

24.10.20211, the dead body of Smt. Kalawati was found floating

near the Towers Nos.36 & 37 of the K.Y.D. canal. The case of the

prosecution is based on circumstantial as well as direct evidence.

9. Firstly, we proceed to examine the evidence of child witness

Aman (PW-13) who was portrayed to be an eyewitness of the

incident and rightly so because, admittedly, the child was present

with his parents in the house at Rawla on the fateful night. The

witness was aged less than five years at the time of the incident

and thus, manifestly, he was a child of very tender age. Upon

being examined on oath, the child stated that he along with his

parents and his brother Himanshu (PW-7) used to stay in the

village Rawla. His mother used to work. On the day of incident,

Himanshu had gone to his paternal aunt's house. He and his

mother were present in the house. They took food and went to

sleep. He heard his mother's screams on which, he woke up and

saw his father trying to strangulate her. He punched his father so

as to save his mother. His father brought scissors and gave blows

thereof on the neck of his mother due to which, she started

bleeding. He too raised screams. No one came to save her. His

father told him that he would be taking his mother to the hospital

for getting her treated. His mother was boarded on a motorcycle

(12 of 26) [CRLA-982/2012]

by his father and was thrown into the canal. He was also

accompanying his father at that time. His mother was tied to the

back of motorcycle with a chunni and he was made to sit on the

fuel tank of the motorcycle. After throwing his mother into the

canal, his father dropped him back at the Dhani. In cross-

examination, the witness stated that he was never approached by

the police. Nobody had told him as to how and when his mother

died because he himself knew about the incident. He came to the

Court with his maternal uncle (Mama) with whom he had been

living for the past one year. He accepted whatever his maternal

grandfather (Nana) and his maternal uncle (Mama) told him and

would talk on the terms as told by them. He was inspired by his

maternal grandfather (Nana) to give evidence and was speaking

as per his instructions. He was not taken to the police after the

death of his mother. His maternal grandfather (Nana) took him

and his brother to the police for giving statement. On that day, his

father was also present in the Police Station but he was not

allowed to talk to him. The police asked his Mama and Nana about

the incident, but he was not asked anything. The police told him

that he would be made a witness to give evidence in the Court.

The police told him as to how he was to give evidence. After the

death of his mother, he was living at his maternal grandfather's

house. Though the witness was not confronted with his previous

statement, but for verifying the facts, we examined the charge-

sheet and the unexhibited documents and find that statement of

the child under Section 161 CrPC was indeed recorded on

25.10.2011. The statement of the child witness was strongly

criticized by Shri Choudhary with reference to the above referred

(13 of 26) [CRLA-982/2012]

portions of his cross-examination. As per Shri Choudhary, since

the child admitted that he had been guided to give the statement

by the police and his Mama and Nana, it has to be concluded that

the child had been tutored to give such statement. However, the

fact remains that the suggestions of tutoring which were given to

the child witness were very vague and shrouded. In the very

second and third lines of cross-examination, the child categorically

affirmed that he knew the sequence of events regarding his

mother's death on his own and nobody had told him about the

same. The witness was given suggestions that he accepted

whatever his Mama and Nana told him. He behaved as per their

guidance. However, these admissions in isolation would not even

remotely indicate that the child had been tutored by his Nana or

Mama to give a statement incriminating the appellant for the

assault made on Smt. Kalawati. Not even a vague suggestion was

given to the child during cross-examination that the eyewitness

account of the incident which he had narrated in his

examination-in-chief was based on suggestions or guidance of his

Mama or his Nana or the police. The general acceptance made by

the witness that he accepted whatever his Nana and Mama

suggested or that he behaved as per their guidance were

absolutely natural because these are general behavioural tracts

which a child generally follows in the Indian rural family-social

system. Therefore, we have no reason to hold that the child

witness Aman (PW.13)had been tutored by either his Nana, or

Mama or the police officials to give evidence against the appellant

or that his evidence can be doubted for this reason.The child was

just five years old when the incident took place. He was happily

(14 of 26) [CRLA-982/2012]

living with his parents i.e, the appellant herein and the deceased

Smt. Kalawati at the government accomodation, Primary Health

Centre, Rawla. The incident appears to have been precipitated by

a quarrel between the spouses, wherein the appellant suddenly

got agitated and gave blows by scissors to the deceased on her

neck resulting into her death. Thereafter, the appellant picked up

the dead body and threw it into the canal for destroying the

evidence.

10. The most important witness of the prosecution for imputing

motive to the appellant for murdering his wife is of Hansraj

(PW-10), husband of the Sarpanch of the village 10 K.D., Village

Rawla. In his evidence, he has stated that he knew Smt. Kalawati

as a nurse working at the Primary Health Centre, Rawla for about

last one and a half years. She was living in the Government

accomodation of the Primary Health Centre with her husband and

her children. He knew the accused Pola Ram, who used to quarrel

with his wife regularly by casting aspersions on her character. He

had counselled Pola Ram a couple of times. Kalawati and Pola Ram

lived separately for about one and a half months and then, they

resolved their differences and started living together. On 22 nd

October, 2011, at about 5-6 am, the villagers told him that sounds

of quarrel were heard emanating from the house of Pola Ram in

the previous night. He informed the police about the same in the

morning at about 6 O' clock. The police arrived there. He was also

called at the spot. Pola Ram was in the police vehicle so was his

son. On enquiring from Pola Ram about the incident, he confessed

that in the previous night, a quarrel took place between him and

(15 of 26) [CRLA-982/2012]

his wife Kalawati and that he had killed her and later threw her

dead body into the canal. In cross-examination, the witness

admitted that he had no particular reason to be in touch with

Kalawati. He knew her only because of the Gram Panchayat work.

If there is any quarrel in the village, information would be received

by the Panchayat. The accused gave information regarding his

wife having gone missing in the night. When the police came to

the village, the accused was with them. The police took Pola Ram

with them while leaving. The witness was confronted with his

previous police statement (Ex.D/1) and more particularly with

reference to the omissions and improvements viz-a-viz his sworn

testimony, but he could not reconcile with the same. Nonetheless,

the fact remains that even in his previous statement, the witness

clearly alleged that Pola Ram used to cast aspersions on the

character of his wife and was pressurizing her to leave the job of

A.N.M. and on this count, he used to quarrel with Kalawati and

would also beat her up. Hansraj is an independent witness and

had no reason to give false evidence against the appellant.

However, the theory of motive will have to be evaluated after

analysing the evidence of the other material prosecution

witnesses.

11. The first informant Shri Indraj (PW.1) alleged in the FIR

(Ex.P/24) that Pola Ram wanted that Kalawati should resign from

the job of A.N.M. but she was not agreeing to any such suggestion

and thus, the spouses frequently quarreled with each other on this

count. However, when deposing on oath, Indraj (PW.1) admitted

that the accused-appellant was instrumental in his sister acquiring

(16 of 26) [CRLA-982/2012]

the job of A.N.M. He made a sacrifice by living separately so that

Smt. Kalawati could acquire the degree. The witness alleged that

the husband (accused-appellant) and wife used to quarrel with

each other because the appellant was not happy with the job of

Smt. Kalawati. However, he admitted that no panchayati etc. was

ever held to resolve the issue nor did the lady ever make any

complain to anyone that she was being maltreated by her husband

because of her job. She was doing job of A.N.M. since the year

2010. As is evident, the appellant was instrumental in ensuring

that his wife got the degree of A.N.M., he had to live separately

for this purpose. The lady got the job just in the year 2010 and

the incident took place in the year 2011. In this background, there

had to exist some serious differences between the spouses which

could have spurred the appellant so as to force her to leave the

job or go to the extreme extent of murdering her. At this stage,

we would like to note that Himanshu, ten years old son of the

appellant and the deceased Smt. Kalawati was examined on oath

as PW-7. The child was sensible enough to give evidence. He was

studying in the fifth standard when the incident took place. If at

all, any untoward incident had ever happened between the

appellant and his wife or if they had ever quarreled with each

other on account of the job status of the lady, then, the child

would definitely have noticed the strained relations. Neither

Himanshu nor the child witness Aman alleged in their evidence

that they ever saw their parents quarreling with each other for

this reason. Brij Lal, father of the deceased was examined as PW-

5. He would be one of the best persons to give evidence of motive

against the appellant. In his evidence, Brij Lal stated that his

(17 of 26) [CRLA-982/2012]

daughter Kalawati was married to the appellant in the year 2000.

He gave substantial goods in the marriage. Two children were born

from the wedlock of Kalawati with the appellant. The accused used

to beat Kalawati. Pola Ram used to tell Kalawati that she should

leave the job and then they would go home. Pola Ram was a

drunkard and was addicted to poppy-straw and did not do any

work. The accused was counselled a number of times, but he did

not relent from maltreating his wife Kalawati. The witness stated

that on the day before the incident, Kalawati called him and asked

him to talk to her mother (wife of the witness). He gave the phone

to his wife and Kalawati talked to her. Thus, a faint indication of

differences between the spouses is emanating from the evidence

of Brij Lal (PW.5).

12. Daleep Kumar (PW-6), being another brother of the

deceased Kalawati, gave similar evidence like Indraj. However,

after appreciating all the evidence of material witnesses including

the two children of the appellant and the deceased, we are of the

firm view that there is no substance in the prosecution case that

the appellant was having any significant motive to murder his wife

Kalawati because he was not happy with her doing the job of

A.N.M. It may be stated here that as per the evidence of Shri Brij

Lal, the appellant was sitting idle and was not doing anything. In

this background, clearly the sole source of the family's survival

was the income from Smt. Kalawati's job as A.N.M. and hence, the

appellant could not be expected to be so fool hardy so as to kill

the goose laying the golden eggs. However, law is well settled

that evidence of motive is not a 'sine quo non' for proving the

(18 of 26) [CRLA-982/2012]

charge of murder. If proved beyond all manner of doubt, motive

may lend credence to the other evidence available on record.

However, absence thereof cannot be a single reason to discard the

prosecution case, if it is otherwise established by cogent and

clinching evidence.

13. From the evidence of Hansraj (PW-10) and Chandra Prakash,

SI (PW-14), it is clear that the police arrived at the spot soon after

the Roznamcha Entry (Ex.P/51A) was recorded at the Police

Station as early as at 6 am on 22.10.2011 and immediately

thereafter, Pola Ram was confined by the police officer. However,

he was shown arrested as late as on 31.10.2011 at 4:30 pm. As

the accused was actually in police confinement, any extra-judicial

confession regarding the murder made by him to the witnesses

Hansraj (PW.10) and Indraj (PW.1) would be hit by Section 26 of

the Indian Evidence Act and hence, the same cannot be relied

upon.

14. Smt. Kalawati murdered by subjecting her to violence, which

fact is duly proved from the evidence of the Medical Jurist,

Dr.Satish Kumar (PW-12), who was a member of the medical

board which conducted postmortem on the dead body of Smt.

Kalawati and issued the postmortem report (Ex.P/37). As per the

postmortem report, a wound admeasuring 2 x 1/2 cm into cavity

deep was noticed on the right side of the neck which disected the

sternocleidomastoid muscles as well as the right jugular vein. The

cricoid cartilage was fractured. The wind pipe was compressed.

The cause of death was opined to be asphyxia resulted by the

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ante-mortem injuries found on the person of the deceased.

Admittedly, the dead body of Smt. Kalawati was recovered from

the canal. To this extent, the allegations set out in the FIR

(Ex.P/24) that the accused-appellant told the first informant Indraj

(PW.1) that he had thrown the dead body of Smt. Kalawati in the

canal is relevant and admissible. From the evidence of the child

witness Aman (PW.13), it is clear that he, his mother (deceased

Kalawati) and his father (accused-appellant) were all present

together in the house on the night of the incident. Thus, the facts

and circumstances leading to the violence with Kalawati on the

fateful night were in exclusive knowledge of the appellant and the

boy Aman (PW.13) who has given a graphic account of the

incident.

15. The Investigating Officer Chandra Prakash (PW-14), reached

at the spot at around 6.30 am and the place of incident i.e, the

Government Quarter where Kalawati used to live with her child

and husband (the accused-appellant herein), was extensively

searched/inspected. Blood stains were noticed on the bedding

(pillow cover), (Khes) etc. and accordingly these articles were

seized vide seizure memo Ex.P/3. Likewise, a pair of blood stained

scissors was also noticed at the spot and was suspected to be the

weapon of offence. It was also seized in the presence of the Panch

witnesses including Hansraj (PW-10) vide Seizre Memo Ex.P/3.

The Seizure Officer seized these articles. The clothes (Salwar,

Jumper, Blouse and Underwear) available on the dead body of the

deceased were seized vide seizure memo (Ex.P/12) and were

preserved for serological analysis/comparison.

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16. It may be noted here that the claim of the Investigating

Officer regarding the appellant having been arrested on

31.10.2011 vide arrest memo Ex.P/39 is totally false and cooked

up because admittedly, the appellant was in clutches of the police

right in the morning after the incident as stated by Hansraj

(PW.10). The FIR came to be registered against the appellant on

22.10.2011 and therefore, there was no reason to show him

arrested eight days later. As there are grave suspicious

circumstances regarding the preparation of the arrest memo of

the accused-appellant, the incriminating recoveries shown to

have been affected at the instance of the accused-appellant, viz.

blood stained silencer of the motorcycle (Ex.P/15) and the shirt

(kamiz) worn by him at the time of the incident (Ex.P/16), would

lose significance. Nonetheless, the fact remains that the pillow

covers, the pair of scissors recovered from the place of incident

immediately after the murder, and the Salwar removed from the

dead body of Smt. Kalawati, upon being analyzed at the Forensic

Science Laboratory, gave positive test for presence of 'AB' group

blood as per the FSL report (Ex.P/44) Thus, it is absolutely safe to

conclude that the blood of Smt. Kalawati was found on the

bedding articles and the scissors recovered from the place of the

incident. As the accused-appellant was the only able bodied

person present in the house with his wife Smt. Kalawati, by virtue

of Section 106 of the Indian Evidence Act, the onus would

definitely shift onto the accused to explain the circumstances

under which, his wife disappeared from the house, the blood

stains were found on the bedding and the scissors and as to how

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her dead body with fatal injuries was found in the canal. Section

106 of the Indian Evidence Act reads as below:-

"106. Burden of proving fact especially within knowledge.--

When any fact is especially within the knowledge of any person,

the burden of proving that fact is upon him."

The explanation, as offered by the accused-appellant in his

statement under Section 313 CrPC was that he facilitated the

A.N.M. training of his wife after their marriage and purchased

properties in the name of his wife. He also stated that, "My wife

met with an accident and passed away" and that his

matrimonial relatives had falsely implicated him in this case as

they were casting an evil greedy eye on his property. He himself

went to the police station for giving information about the

accident, but was confined by the police and his report was not

registered. This theory of Kalawati's death by accident putforth by

the accused is totally flimsy and farfetched and does not have any

credibility whatsoever.

17. As has been noted above, the death of Smt. Kalawati was

not accidental, but was homicidal in nature. A very significant

injury caused by a sharp weapon was noticed on the neck of the

deceased which severed the underlying muscles, the jugular vein

and compressed her wind pipe leading to death. As per the FSL

report (Ex.P/44), blood stains of 'AB' blood group found on the

bedding (pillow cover) and the scissors recovered from the spot,

matched with the blood stains found on the Salwar of the

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deceased recovered from her dead body and also with the silencer

of the motorcycle and the shirt of the accused recovered at his

instance, it can be presumed that she was murdered in the house.

The information given by the accused-appellant to Hansraj (PW-

10) and Indraj (PW-1) that he had thrown the dead body of

Kalawati in the canal was duly fortified because the dead body of

the lady was recovered from the canal by IO on 24.10.2011 vide

recovery memo Ex.P/8. The occular testimony of the child witness

Aman (PW.13) is wholly corroborated by the medical evidence.

18. In this background, we are of the firm opinion that the

occular testimony as deposed by the child witness Aman (PW.13)

and the chain of circumstances narrated above, invariably point

towards the guilt of the accused for the murder of Smt. Kalawati.

A quarrel on the some issue took place between the spouses on

the fateful night, during which, the appellant inflicted the fatal

scissor blow on her neck which proved instantaneously fatal.

Thereafter, the accused carried the dead body of Smt. Kalawati on

his motorcycle and disposed it of by throwing it into the canal. The

information given by the accused to Hansraj (PW-10) and Indraj

(PW-1) regarding he having thrown the dead body of Kalawati into

the canal, was duly fortified by the ensuing recovery. Hence, we

are of the firm opinion that the accused-appellant failed to

discharge the mandatory burden which was shifted onto him by

virtue of Section 106 of the Indian Evidence Act, for explaining the

circumstances under which his wife met with homicidal death. In

addition thereto, the evidence of the child witness Aman (PW.13)

is convincing and conclusively points to the complicity of the

(23 of 26) [CRLA-982/2012]

accused in the crime. The circumstances of the case at hand are

almost at par with those discussed and elaborated by the Hon'ble

Supreme Court of India in the case of Trimukh Maroti Kirkan vs

State of Maharashtra, reported in (2006) 10 SCC 681,

wherein the guilt of the accused was affirmed in almost similar

circumstances by taking recourse to reverse burden of proof

provided under Section 106 of the Indian Evidence Act. Relevant

extracts from the above judgment are quoted below for the sake

of ready reference:-

"11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh : 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.

(24 of 26) [CRLA-982/2012]

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. 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 the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

XXXX

13. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar and Ors. : 2000CriLJ4047 . In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports:

'31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the

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other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him.

Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.' Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life.

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16. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also

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normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime..."

19. Hence, we are of the view that the prosecution has proved

its case against the accused by leading convincing evidence. The

appreciation of evidence as undertaken by the trial court in the

impugned judgment dated 19.10.2012 is apropos and does not

suffer from any significant infirmity warranting interference

therein. As a consequence, we find no merit in this appeal which is

rejected as such. Accordingly, the instant appeal filed under

Section 374(2) CrPC, on behalf of the appellant is rejected.

                                   (DEVENDRA KACHHAWAHA),J                                      (SANDEEP MEHTA),J


                                    Sudhir Asopa/-









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