Rajasthan High Court - Jodhpur
Smt.Kamla @ Laxmi vs State on 29 October, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
(1 of 14) [CRLA-240/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 240/2015
Bheru Lal s/o Mohan Lal Suwalaka aged 40 years r/o Udliyas,
Police Station. Kotadi, District Bhilwara.
(Presently lodged in Central Jail Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 95/2015
Smt.Kamla @ Laxmi w/o Jeet Mal Kharl aged 35 years r/o
Udliyas, P.S. Kotdai, Distt- Bhilwara
(Presently lodged in Central Jail Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. R.K Charan in D.B. Criminal
Appeal No. 240/2015
Mr. Zafar Khan in D.B. Criminal
Appeal No. 95/2015
For Respondent(s) : Mr. Anil Joshi, Public Prosecutor
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
Judgment Reserved on : 15/09/2021
Judgment Pronounced on : 29/10/2021
Per Hon'ble Mr. Rameshwar Vyas, J.
Both the aforesaid appeals stand decided by this common
judgment as they arise out of common judgment & order of
conviction.
(2 of 14) [CRLA-240/2015]
The appellants Bherulal & Smt. Kamla have preferred
separate appeals under Section 374(2) of Cr.P.C against the
judgment & order dated 24.01.2015 passed by Additional Sessions
Judge, Shahpura, District Bhilwara in Sessions Case No. 17/2011
(Bherulal & Anr. Vs State of Rajasthan), whereby, the accused-
appellant were convicted & sentenced as under:-
Offence Sentences Fine Fine Default
sentences
U/s 302IPC Life Rs.2000/- 03 months RI
Imprisonment
U/s 365IPC 07 years RI Rs.1000/- 01 months RI
U/s 201 IPC 03 Years RI Rs. 500 15 Days RI
Brief facts of the case are that on 26.09.2011, a dead body
of unknown lady aged about 35-40 years was found lying under
the National Highway bridge near Shani temple; injuries were
found on her neck. This fact came in the knowledge of Sarpanch
of village Narela viz Durga Singh, who reported the matter to
SHO, Police Station Chanderiya, District Chittorgarh by a written
report (Ex-P/1) upon which an FIR no. 315/11 (Ex-P/41) under
Sections 302 & 201 IPC was registered against unknown persons.
The dead body was secured in the presence of witnesses vide
memo Exhibit P-2 and was sent for postmortem. A site plan was
prepared vide Exhibit P-3. All SHO's of the State were informed;
the clothes found on the dead body were seized vide Exhibit P-47;
DNA samples were collected from the dead body; photographs of
the dead body were also snapped; viscera of the dead body was
sent to FSL for examination. Dead body could not be identified.
(3 of 14) [CRLA-240/2015]
On 18.10.2011 PW-1 Kailash son of deceased Prem Devi
lodged a written report vide Exhibit P-2 to the Deputy
Superintendent of Police, Shahpura, wherein inter-alia it was
alleged that on 25.09.2011 i.e on Sunday, his mother Prem Devi
with his younger brother Kisan, aged about 2 years, went to
village Chalniya for "darshan" at Bherunath temple; they did not
return in the evening; in spite of intensive search, they could not
be found. On the previous day, Kamlesh went to village Chalniya
with his maternal uncle Shyamlal, where they came to know that
Bherulal, Kamla and some other persons had taken his mother
forcefully from village Chalniya in a Pickup vehicle. In this regard,
a written report Exhibit P-2 was submitted to the Deputy
Superintendent of Police, who sent the report to SHO, Kotdi. The
case was assigned to SHO, Shahpura who deputed Head Constable
Ramlal to make inquiry. The Head Constable recorded the
statements of complainant Kailash, Shyamlal, Jetu and Bherulal
and found that the mother of Kailash and his brother Kisan, aged
about 2 years, were taken away by Bherulal, husband of Prem
Devi and father of Kailash and Kishan from village Chalaniya,
Bherunath. Prem Devi could not be traced by the Head Constable.
Inquiry Report was submitted to the SHO on 05.11.2011. After
three days i.e. on 08.11.2011, an FIR No. 204/2011 under Section
365 IPC was registered on the basis of above report and the case
was handed over to Fatehlal (Sub Inspector) for further
investigation. During investigation, site plan of village Chalania,
Bherunath was prepared on 09.11.2011; the child of Kishan was
recovered from the possession of accused Bherulal vide Exhibit P-
4 on 10.11.2011 and his custody was handed over to Kailash
(4 of 14) [CRLA-240/2015]
(complainant). Bherulal was arrested on the same day and on the
basis of the information given by him under Section 27 of the
Indian Evidence Act, the site plans of place of occurrence and the
place where dead body was thrown away, were prepared;
documents of FIR No. 315/2011 of PS, Shahpura were collected;
Kailash and Shyamlal identified that dead lady visible in
photographs was of Prem Devi. Co-accused Kamla Devi was
arrested on 13.11.2011 vide Exhibit P-15. Statements of
witnesses under Section 161 Cr.P.C were recorded; the record of
Toll Plaza, from where pickup vehicle passed, was received; pickup
vehicle and its documents were seized from the possession of
Bherulal vide Exhibits P-14 and 16; information regarding mobile
phone of deceased given by Bherulal was recorded on 14.11.2011
vide Exhibit P-28 and the same was recovered on 15.11.2011 on
his information.
After investigation, charge-sheet was filed against Bherulal
and Kamla under Sections 302, 365 and 201 read with Section 34
of Indian Penal Code. As the offence under Section 302 IPC was
exclusively triable by court of Sessions, the case was committed to
the court of the Additional Sessions Judge, Shahpura, District
Bhilwara for trial where charges were framed against the accused-
appellants herein who pleaded not guilty and claimed trial.
Prosecution produced total 30 witnesses in its support and
exhibited total 55 documents. Accused Bherulal when examined
under Section 313 Cr.P.C, denied the prosecution evidence and
averred that vehicle RJ06-GA-0883 belonged to him which was
seized by police from his house. He did not know how Prem Devi
(5 of 14) [CRLA-240/2015]
died. No witness was produced on behalf of accused in their
defence.
During arguments Shri Charan, learned counsel for the
appellant Bherulal has contended that false recoveries were shown
from the possession of the appellant. As per prosecution story,
deceased was said to have been taken by appellant on 25.09.2011
forcefully but no one stated this fact before the police till
18.10.2011. On this fact, learned trial court has relied upon the
statement of Jetu, whose statement was recorded by the police
after considerable delay i.e. on 09.11.2011. Statement of another
witness Pooran (PW-25) was also belatedly recorded on
16.11.2011. Witness Kailash (PW-1) did not support the
prosecution story, as he was declared hostile by prosecution. In
absence of completion of chain of circumstances, Bherulal could
not have been convicted for the charge of murder of his wife.
Learned counsel, therefore, prayed for the acquittal of the
accused-appellant.
Shri Zafar Khan, learned counsel for the appellant Kamla has
contended that Kamla has been convicted without any evidence;
there is no iota of evidence against her.
On the contrary, learned Public Prosecutor has contended
that there is ample evidence on record to connect Bherulal with
the offence. Bherulal had illicit relations with co-accused Kamla; in
order to remove obstacles in their relations, Prem Devi and her
son Kishan were taken away by Bherulal and Kamla in a vehicle
and then Bherulal strangulated Prem Devi to death and threw
away the dead body below the National Highway Bridge, beside
(6 of 14) [CRLA-240/2015]
the Shani Temple. The Child was found in the possession of
appellant Bherulal who did not offer any explanation for not taking
any action despite his wife having gone for so many days; he
neither reported the matter to anybody nor answered satisfactorily
to Kailash and Shyamlal. Mobile of the deceased was recovered
from the possession of appellant. Learned Public Prosecutor
further submitted that Kamla was also involved in this whole
episode, learned trial court has rightly convicted them for the
offences under Sections 302, 365 & 201 IPC.
Having considered the arguments advanced by learned
counsel for the parties and after going through the evidence
available on record, it reveals that deceased Prem Devi wife of
appellant Bherulal used to visit Chalniya Bherunath on every
Sunday. One fine day on 25.09.2011, she went to temple with her
two years old son Kisan. She did not come back; she was
searched here and there but no clue was found. On the next day
i.e. 26.09.2011, a dead body was recovered below the National
Highway, near Shani Temple in the jurisdiction of PS Chanderiya,
District Chittorgarh. After necessary inquiry, the dead body was
cremated without identification; afterwards, it was found that the
dead body so cremated belonged to the mother of Kailash and
sister of Shyamlal, who identified it on the basis of photographs
and clothes. Jetu (PW-5) & Pooran (PW-25) have been produced
to corroborate the fact that it was Bherulal who took away
deceased with him and after that, no one had seen her alive.
Kailash PW-1 has been declared hostile by prosecution.
However, he stated in his examination-in-chief that Prem Devi was
(7 of 14) [CRLA-240/2015]
his mother, they were two brothers. His younger brother was aged
about 2 years; his mother Prema Devi used to visit Chalniya,
Bherunath on every Saturday and returned back on Sunday or
Monday; his father was Driver by profession who had his own
Pickup vehicle. He and his maternal uncle Shyamlal went to search
for his mother who could not be found anywhere. He did not know
as to whether his mother was killed by Kamla and Bherulal.
Shyamlal (PW-2) stated that he received a telephonic call
from Kailash that his mother went to Bherunath and did not return
back. They started looking out for the lady and went to village
Chalniya, Bherunath; where one lady named Jetu told them that
Bherulal and Kamla had taken away Prem Devi in a pickup vehicle.
He further stated that there was dispute between Bherulal and his
sister Prem Devi on account of Kamla. Previously, Kamla resided
with Bherulal, afterwards, she started living at Lavada. He also
stated that his sister used to visit village Chalniya, Bherunath. As
per his version, he reported the matter to the Deputy
Superintendent of Police and he also looked for Bherulal; he talked
to Bherulal on telephone but Bherulal abused him. In the cross
examination, this witness stated that Jetu was not previously
known to him. They went to Chalniya after 20-25 days of Prem
Devi having gone missing. His sister used to go to village
Chalniya, Bherunath on every Saturday and Sunday for last 8
years. Child Kisan was handed over to them. Prem Devi was
abducted on Sunday in the "Aasoj" (Hindu month); he denied the
suspicion that the relations between Bherulal and Prem Devi were
(8 of 14) [CRLA-240/2015]
cordial; as per his version Prem Devi told him about the affairs of
Bherulal with another woman.
In our considered opinion depositions of the above witnesses
fully prove the fact that Prem Devi used to visit village Chalniya,
Bherunath on every Saturday and Sunday. One fine day, she went
with her minor son Kisan, aged about 2 years and did not return
back. Bherulal was told of the fact that his wife had gone missing
but he did not divulge this fact to anyone. On the other hand,
Kailash and Shyamlal went to search for Prem Devi. During the
course of search, they also tried to contact Bherulal, who did not
respond properly to their queries. During search, they came to
know from Jetu that Prem Devi was taken away by Bherulal.
We have perused the deposition of Jetu PW-5, resident of
Chalaniya, Bherunath carefully. As per her statement, Prem Devi
used to come to village Chalniya, Bherunath on every Saturday
and Sunday for the last 6-7 years and would stay in "Sarai"
Incident took place one or two days before starting of Navratra.
Prem Devi was taking meal, when her husband Bherulal came
there and took her with him. At that time her 2 years old child was
also with her. She was taken in a Pickup vehicle at about 02:00
PM. After the incident, son of Prem i.e. Kailash, aged about 14
years, came to inquire about his mother. She told him that his
mother had been taken away by his father; Kailash was
accompanied by Shyamlal brother of the deceased. She had not
seen Prem alive again after that. In cross examination, she stated
that the incident took place on Sunday; she did not remember the
exact date. On that day a Fair had been organized in the village
(9 of 14) [CRLA-240/2015]
Chalniya, Bherunath. She reiterated that Prem Devi used to come
Bherunath on every Sunday. After 5-10 days of the incident, police
came there, by that time, she was not aware as to what had
happened to Prem Devi. In her cross examination, she also stated
that whoever asked her about Prem Devi, she replied that Bherulal
took her with him. In response to a pertinent suggestion by the
defence the witness replied that she did not know that Bherulal
had taken his wife to his mother's house. It is also important to
mention that as per this witness, Prem Devi was weeping at the
time when her husband took her with him. The statement of Jetu
finds support from the statement of Puran (PW25). According to
him also, Bherulal took away Prem Devi with him along with her
minor son.
After perusing the statement of Jetu, we are convinced that
Jetu's version is absolutely truthful and reliable. Though, she is
not relative of deceased yet on account of frequent visits of
deceased Prem Devi to village Chalniya, Bherunath, she was
acquainted with Prem Devi. Bherulal and Shyamlal were also
previously known to her. In cross examination, the fact of Bherulal
taking away Prem Devi from Chalniya, Bherunath was not
disputed, rather it was tried to be justified by suggesting her that
Bherulal took Prem Devi to his house for meeting his mother.
There is no evidence on record to suggest that after taking Prem
Devi was taken away by Bherulal on the day of incident i.e.
Sunday in the Hindi month of Aasoj, which is commensurate with
the month of September, Prem Devi was seen alive by anybody.
On the next day, the dead body was found lying below the
(10 of 14) [CRLA-240/2015]
National Highway Bridge and was recovered by the officer of Police
Station, Chanderiya. Gopal Ramchandrani PW-29- SHO, P.S.
Chanderiya proved the fact of recovery of the dead body. As per
his statement, on receiving the information from Durga Singh,
Sarpanch, Narela on 26.09.2011 to the effect that an unidentified
female dead body was lying below National Highway near Shani
Temple, he went to the spot. Durga Singh filed the report (Exhibit
P-40), upon which FIR No. 315/2011 under Sections 302 & 201
IPC was registered. He prepared the site plan, got photographs
taken and sent the dead body for postmortem; seized some
articles, took samples etc. This witness further stated that during
investigation, he came to know that one case had already been
registered at the Police Station, Shahpura regarding abduction of
the deceased Prem Devi. After taking necessary orders from
Superintendent of Police, Chittorgarh, he handed over the seized
articles to Superintendent of Police, Bhilwara.
Shyamlal (PW-2) stated that they went to Chanderiya Police
Station and identified the pohotographs of his sister. Thus, there is
overwhelming evidence of the fact that the dead body recovered
by the Police officers at Chanderiya in FIR No.315/11 was of Prem
Devi, who is the mother of Kailash and sister of Shyamlal. Upon
information from Police Station, Chanderiya had been received,
the fact of the homicidal death of Prem Devi was established.
Thereafter the accused Bherulal was arrested and the child Kisan
was recovered from his possession. In this regard, Fatehlal (PW-
26) stated that the child Kisan was recovered from the accused
and his custody was given to his elder brother Kailash and
(11 of 14) [CRLA-240/2015]
maternal uncle Shyamlal vide Exhibit P-4. Witness of recovery
memo Subhash (PW-7) also supported the prosecution story. On
the suggestion of the defence, he admitted that the child was
produced by Bherulal at the Police Station. Appellant Bherulal did
not explain the circumstances under which the child Kisan came to
be in his possession even though he and his wife Prem Devi's
relations were strained and both were not living together. He also
failed to explain one important incriminating circumstance proved
against him that how Kisan and his mother were separated from
each other, whereas he had taken his wife along with Kisan. The
circumstance that he neither reported the fact of long absence of
his wife to any body nor did he reply properly to the query of
Shyamlal during search process, also goes against the appellant
Bherulal. The above mentioned facts and circumstances clearly
prove the guilt of the appellant Bherulal. He offered no
explanation regarding the facts which were specially in his
knowledge. The evidence reveals that he had relations with Kamla
Devi which was also the cause of dispute between the deceased
and the appellant.
As per postmortem, report the cause of death was due to
Asphyxia. Injuries were found near neck region of the deceased
which were antemortem. Nature of the injury also corroborates
the fact that she was strangulated to death. FSL report is negative
regarding any poisonous substance.
After perusing the evidence on record, it also reveals that
deceased had no enmity with anyone; there was no reason to
doubt that anybody else had caused the death of the deceased.
(12 of 14) [CRLA-240/2015]
As per postmortem report, no internal or external injuries were
found on genital organs so as to suggest motive of sexual
gratification to kill her except one as proved by the prosecution.
It is also relevant to mention that appellant is driver by
profession, he owns and drives a pickup which was precisely the
vehicle used in this incident & was recovered from the possession
of the appellant during investigation.
The fact that appellant induced his wife to go with him and
then she was taken away along with her minor son in pickup
vehicle, on the second day her dead body was found lying below
the National Highway near Shani temple; marks of injuries were
found on her neck, death due to strangulation; the fact that child
was found in the possession of the appellant (Bherulal); the fact
that the deceased Prem Devi was not seen alive after her
departure from village Chalaniya, Bherunath with the appellant
Bherulal clearly establish his guilt. There is no explanation on the
part of the appellant regarding the injuries, caused to Smt. Prem
leading to her death and circumstances under which he got the
custody of child of 2 years. Thus, appellant has been rightly
convicted by the learned trial court for offences under Sections
302, 365 & 201 IPC. There is no reason to interfere the judgment
of the trial court to the extent it relates to the appellant Bherulal.
Regarding conviction of the appellant Kamla, there is no
evidence on record to connect her with the offences. It seems that
she has been convicted on the sole ground that she was involved
in an affair with the appellant- Bherulal.
(13 of 14) [CRLA-240/2015]
We fully agree with the contention of the learned counsel for
the appellant that Kamla Devi was not seen with the appellant by
anybody at village Chalaniya, Bherunath. During investigation,
police reached at village chalaniya Bherunath and prepared site
plan Exhibit-3 in which the place from where deceased was taken
away by Bherulal has been indicated, the name of Bherulal has
been mentioned in the said Memo whereas it is not mentioned
that Kamla Devi was also with him at that time.
Jetu (PW-5) in her examination-in-chief stated that she
heard at a later point of time that the lady sitting in the vehicle
was Kamla Devi. In cross examination she also stated that she
saw pickup from the distance of 25-50 pawandas. On the basis of
above statement, Kamla could not be held guilty. Learned trial
court has grossly erred in convicting Kamla without any evidence,
hence, she is entitled to be acquitted.
On the basis of above discussions, the criminal appeal of
appellant Bherulal fails and is dismissed as such. The judgment
dated 24.01.2015 passed by the Additional Sessions Judge,
Shahpura, District Bhilwara is affirmed and upheld to the extent of
appellant Bherulal.
So far as the appellant Kamla is concerned, the appeal is
allowed to her extent. She is acquitted from the offences
punishable under Sections 302,365 and 201 IPC. She is on bail.
She need not surrender and her bail bonds are discharged.
Keeping in view, however, the provisions of Section 437-A
CrPC, the accused-appellant Smt.Kamla @ Laxmi w/o Jeet Mal
Kharl is directed to forthwith furnish a personal bond in the sum of
(14 of 14) [CRLA-240/2015]
Rs. 30,000/- and a surety bond in the like amount, each, 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 Special Leave
Petition against the judgment or for grant of leave, the appellant,
Kamla on receipt of notice thereof, shall appear before Hon'ble
Supreme Court.
After necessary compliance, record of the trial court be
returned forthwith.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
1 & 2 Rahul Arya/-
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