Raju @ Rajiya vs State
2022 Latest Caselaw 11079 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 698/2014

Raju @ Rajiya S/o Paras Ram, by caste Soni, resident of 5-A,
Mojpura, Sri Ganganagar
[At present confined in Central Jail, Sri Ganganagar]
                                                                  ----Appellant
                                   Versus
The State of Rajasthan
                                                                ----Respondent


For Appellant(s)         :     Mr. Vikash
                               Mr. Rakesh Matoria
For Respondent(s)        :     Mr. B.R. Bishnoi, PP.
                               Mr. R.R. Chhaparwal, PP.



          HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR

                             JUDGMENT

Judgment pronounced on                 :::                       31/08/2022
Judgment reserved on                   :::                       19/07/2022


BY THE COURT : (PER HON'BLE MATHUR, J.)

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 19.07.2014 passed by the learned

Special Additional Sessions Judge (Women Atrocity and Dowry

Cases), Sri Ganganagar in Sessions Case No. 110/2013. He has

filed the instant appeal under Section 374 (2) CrPC for assailing

the impugned judgment:-

Offence       Sentence              Fine      Fine Default Sentence
302 IPC Life Imprisonment        ₹ 10,000/- 1 year simple imprisonment

2. Brief facts relevant and essential for disposal of the appeal

are noted hereinbelow.

(2 of 11) [CRLAD -698/2014]

Pooja (P.W. 9) lodged a written report (Ex. P./1) to the

S.H.O. Police Station, Purani Abadi, Sri Ganganagar on 17.09.2013

about the murder of her mother Smt. Sita Devi. In the written

report it was alleged that one Shri Raju Soni had been cohabiting

with her mother for last one year. For last four months, they had

been living in the present rented house i.e. the place of incident.

It was further alleged that Raju Soni quarreled with her mother on

the previous night. Next day, when she visited the house to meet

her mother around 11:00 AM, she saw that Raju Soni was sitting

on the stairs, who on seeing her, ran away. On going inside the

house she found Sita Devi's dead body lying on a cot. It was

alleged that Raju Soni had murdered Sita Devi.

3. On the basis of this report, FIR No. 318/2013 (Ex.P/2)

came to be registered at the Police Station, Purani Abadi, Sri

Ganganagar on 17.09.2013 for offence punishable under Section

302, IPC. Investigation was assigned to SHO Shri Devendra Singh

(P.W. 11). The dead body was subjected to autopsy at the hands

of Medical Jurist Shri Mukesh Kumar Bansal (P.W.7), who issued a

Postmortem Report (Ex.P/18), concluding that the cause of death

was strangulation and also found Rigor Mortis present on the dead

body at the time of the examination.

4. The accused was arrested and acting in furtherance of the

information provided by him, under Section 27 of the Evidence

Act, the chunni used for strangulating the deceased was recovered

vide memorandum (Ex.P/6). Upon conclusion of investigation, the

I.O. proceeded to file charge-sheet against the accused-appellant

for offence punishable under 302 IPC. The case was committed to

the Court of Special Judge (Women Atrocity and Dowry Cases), Sri

(3 of 11) [CRLAD -698/2014]

Ganganagar, where charge was framed against the accused for the

above offence. He pleaded not guilty and claimed trial.

5. The prosecution examined as many as 11 witnesses and

exhibited 23 documents to prove its case. Upon being questioned

under Section 313 CrPC and when confronted with the

circumstances appearing against him in the prosecution evidence,

the accused denied the same, claimed to be innocent and stated

that deceased Smt. Sita Devi was having enmity with number of

persons, as a consequence whereof various criminal cases were

filed against her. However, accused did not produce any evidence

in support of his statement. Learned trial court, heard and

considered the arguments advanced by the learned Public

Prosecutor and the learned defence counsel; appreciated the

evidence available on record and proceeded to convict and

sentence the accused appellant as above vide judgment dated

19.07.2014 which is assailed in this appeal.

6. Mr. Vikash, learned counsel representing the appellant,

contended that there is hardly any evidence worth the name on

the record of the case so as to connect the appellant with the

crime. The prosecution has failed to prove that the appellant was

having any motive to murder Sita Devi. Counsel further contended

that informant Pooja (P.W.9), alleged in the Written Report

(Ex.P/1) that the accused was sitting on the stairs when she went

to meet her mother around 11 AM. On seeing her coming, the

accused ran away. On the contrary, the informant Pooja (P.W.9)

stated in her testimony that she saw the accused appellant sitting

on stairs when she visited to meet her mother; she went inside

the house, saw her mother's dead body whereupon, she screamed

and on hearing her fervent cries, Santro Devi (P.W. 6), landlady,

(4 of 11) [CRLAD -698/2014]

Ravindra, informant's husband and Sandeep Kaur (P.W. 10),

informant's mother in law gathered and on seeing them, the

accused appellant ran away. Mr. Vikash urged that these material

contradictions, as pointed out in the statement of Pooja (P.W.9),

and the written report given by her remained unexplained and are

sufficient to impeach her testimony. Santro Devi (P.W.6) in her

statement, denied knowing anything about the alleged incident

and thus, was declared hostile. The statement of Dr. Mukesh

Kumar Bansal (P.W.7) clearly indicates that he noticed Rigor

mortis on the body of Smt. Sita Devi which only commences after

6 hours from the death. This contradicts the alleged time at which

the incident transpired i.e. around 11 AM according to the written

report; the autopsy was conducted at 2:30 PM, so the time of

death must have been around 7-8 AM. The counsel urged that a

person who has committed murder would not stay put at the place

of incident till 11 AM and this important aspect has been

overlooked by the learned trial court. The site plan of the recovery

place from where chunni was recovered, does not show presence

of cooler and box, on the other hand, the cooler and box were

shown in the map (Ex.P/5) prepared on the day of alleged incident

i.e. 17.09.2013. After the map (Ex.P/5) was prepared, the room

was sealed and thus, there is no explanation as to the

disappearance of the cooler and the box, which renders the

recovery suspicious. Counsel fervently submitted that the

appellant accused had no motive to murder Sita Devi. To

substantiate this assertion it was pointed out that the appellant-

accused, in his statement given under Section 313 CrPC, stated

that deceased was having enmity with number of persons, as a

consequence whereof various criminal cases were filed against her.

(5 of 11) [CRLAD -698/2014]

Any one of these persons might have committed the murder of

Smt. Sita Devi and the accused has been framed for the offence

without any cogent evidence on record.

7. Mr. Vikash vehemently contended that the prosecution did

not lead an iota of evidence to prove that the accused had

committed the murder of the deceased.

He further urged that for raising reverse burden of proof

under Section 106 of the Indian Evidence Act, the prosecution

would first have to establish that the accused was present in the

house at the time of the incident. The time of the alleged incident

is under cloud because of the presence of rigor mortis as observed

on the dead body at the time of postmortem. The contradictions in

written report and evidence of informant Pooja (P.W.9) makes her

an unreliable witness. Mr. Vikash urged that there is total lack of

evidence on the aspect of presence of the accused at the place of

incident when Smt. Sita was done to death and hence, the

conclusion drawn by the trial court relying on Section 106 of the

Indian Evidence Act holding that the burden shifted onto the

accused to explain the circumstances under which deceased was

murdered is totally illegal and contrary to record.

8. Mr. Vikash drew the Court's attention to the fact there

were no eye witnesses of the incident and arrest had been made

on basis of mere suspicion. Further, Raju Soni was not arrested

from the place of incident; rather he was arrested from some

other place. He concluded his arguments urging that in a case

governed by circumstantial evidence the unbreached chain of

circumstances is required to be established by the prosecution,

who has led no plausible evidence whatsoever to bring home the

charges against the appellant and thus, the failure to discharge

(6 of 11) [CRLAD -698/2014]

the burden under Section 106 of the Indian Evidence Act is not

relevant and hence, he deserves to be acquitted.

9. Per contra, learned Public Prosecutor, vehemently opposed

the submissions advanced by the appellant's counsel. He urged

that Pooja (P.W. 9) in the written report (Ex.P./1) stated that the

accused was involved in the relationship with the deceased Smt.

Sita Devi and for the last one year they had been living together

in a rented house since last four months in Santro Devi's (P.W.6)

house. He urged that the informant Pooja (P.W. 9) gave convincing

evidence that the accused used to misbehave with her mother and

that they had quarreled night preceding the incident. He urged

that the post mortem report (Ex.P./18) establishes presence of

ante morterm injuries on the body of the deceased, the cause of

death was opined as strangulation. The statement of Pooja (P.W.

9) clearly establishes that the accused was present at the time of

incident, sitting on stairs and on seeing her, he ran away. The

statement of Pooja (P.W. 9) is further corroborated by Sandeep

Kaur (P.W.10) who stated that she saw Raju sitting on stairs, who

ran away on seeing them. He urged that the fact that the accused

fled from the spot on seeing Pooja and others, gives a strong

indication about his conduct and guilty state of mind and

establishes that he had committed murder of Sita Devi. Learned

Public Prosecutor urged that, as the appellant was unquestionably

staying with the deceased, Sita Devi in the house where dead

body was found by the informant, Pooja (P.W. 9), the burden of

proof to explain the circumstances under which Sita Devi was

murdered, has been rightly shifted by the trial court upon the

accused by virtue of Section 106 of the Evidence Act. Since, the

accused failed to offer any plausible explanation for these gravely

(7 of 11) [CRLAD -698/2014]

incriminating facts and circumstances, the only consequence

which would entail, would be to hold him guilty of the charges. On

these grounds, the learned Public Prosecutor implored the Court to

dismiss the appeal and affirm the impugned judgment.

10. We have heard the submissions advanced at bar and

have perused the material available on record. We have

thoroughly re-appreciated the evidence led by prosecution.

11. From a perusal of the evidence of the two material

witnesses i.e. the first informant, Pooja (P.W. 9), daughter of the

deceased and her mother-in-law Smt. Sandeep Kaur (P.W.10), it

becomes abundantly clear that the accused was present at the

spot of incident, sitting on stairs and on seeing them, he ran away.

It also becomes clear from statement of Pooja (P.W. 9) that the

appellant often used to quarrel with the deceased. From the

evidence of Pooja and Smt. Sandeep Kaur, it is established that

the dead body of Smt. Sita was lying in the house and the accused

was present at the scene of crime. On seeing the witnesses, the

accused fled from the scene. The statements of Pooja and Smt.

Sandeep Kaur stood the test of cross examination and inspire

confidence. In the statement under Section 313 of Criminal

Procedure Code, no explanation was offered by the accused as to

how Smt. Sita was strangulated to death in his presence. The

presence of rigor mortis on the body at the time of postmortem

harped upon by the appellant's counsel is not significant as there

is no hard and fast rule that rigor mortis starts post 6 hours of the

death. In cross examination, Dr. Mukesh Bansal (P.W.7) admitted

that cold temperature causes the process of rigor mortis to

become slower in comparison to other weather conditions. This

clearly establishes that rigor mortis is dependent on weather

(8 of 11) [CRLAD -698/2014]

conditions and there is no strict rule that it appears only after 6

hours and thus arguments advanced by the counsel for the

appellant is not of much significance.

Assuming the time of commission of crime to be prior in time

to the one as narrated by the prosecution story, appellant who

used to stay with the deceased, should have informed someone or

police about the incident. In absence of the same, it can be safely

assumed that he had committed murder and the burden to prove

otherwise is on him according to Section 106 of Evidence Act. No

explanation whatsoever as to the gravely incriminating

circumstances was given by the accused, which establishes his

guilt beyond all manner of doubt. In statement under Section 313,

CrPC, accused stated that several criminal cases were registered

against the deceased in various police stations and many of these

complainants were inimical towards her. The appellant produced

no evidence to prove this conjectural theory. On the other hand,

the document exhibit (Ex.P./22) clearly reveals that the accused

was a habitual offender and as many as nine cases were

registered against him, including those of murder, assault and

theft. Though, previous criminal conduct in isolation does not

prove anything according to Section 54 of Evidence Act but this

criminal history is definitely indicative of the cruel conduct of the

accused.

12. Pooja (P.W.9) has given clinching testimony that the

accused had been involved in a relationship with her deceased

mother for one year and both had been staying together in a

rented house since last four months. This fact was not denied by

the accused in his statement under Section 313, CrPC.

(9 of 11) [CRLAD -698/2014]

13. Both Pooja (P.W. 9) and Sandeep Kaur (P.W.10) gave

cogent testimony, that the accused was sitting on the stairs and

fled from the scene when he saw them. They could not be shaken

from this version despite prolonged cross examination.

14. In wake of these facts, we have no hesitation in holding

that the accused had been involved in a relationship with the

deceased for the past one year and both were living in the rented

house since last four months. It is in this very house that Smt.

Sita was found strangulated to death. The accused was present at

the rented house at the time, when the body of the deceased was

discovered by Pooja (P.W.9). This has been clearly established by

the statements of Pooja (P.W.9) and Sandeep Kaur (P.W.10). The

statements of the above mentioned witnesses, also establish that

the accused fled away from the spot on seeing them. The fact that

the accused fled away from the crime scene is a significant fact

which gives a clinching indication towards his guilty state of mind.

15. The Medical Jurist Dr. Mukesh Kumar Bansal (P.W.7)

conducted postmortem upon the dead body of Sita Devi, and

issued the postmortem report (Ex.P/18) taking note of bruise of

2¼ inches on the lower left side of the mandible bone, nail marks

on the right side as well as on the left side of the chest near

clavicle bone and PMR staining at the back. The Medical Jurist also

noted that all the injuries were ante mortem and concluded that

the death was caused by strangulation. The accused was present

at the crime spot and was seen by both Pooja and Sandeep Kaur.

The accused in his statement under Section 313, CrPC has not

given any explanation as to why he fled from the scene or under

what circumstances Sita Devi was murdered.

(10 of 11) [CRLAD -698/2014]

16. As a consequence of the discussion made hereinabove,

we are of the firm view that the prosecution has proved the chain

of incriminating circumstances summarized below which point

exclusively to the guilt of the accused and are totally inconsistent

with his innocence:-

1.) That the accused and Sita Devi had been cohabiting together

for last one year and four months.

2.) That the relations between the accused and Sita Devi were

strained. The accused used to quarrel with the deceased and they

quarreled on the night preceding the incident.

3.) That the accused did not inform about the homicidal death of

Sita Devi to anyone or police though he was present at the place

of incident.

4.) That on seeing the informant Pooja and the witness Sandeep

Kaur, the accused fled from the scene which is enough to draw an

adverse inference against him.

5.) That the postmortem report concludes that the death was

caused by strangulation associated with mechanical violence.

6.) The accused has neither denied living with Sita Devi nor his

presence at the time of the incident.

7.) No explanation whatsoever has been given by the accused

explaining his presence at the time of the incident and under what

circumstances Sita Devi died.

8.) The failure to offer any explanation by the accused for these

gravely incriminating circumstances for which the onus is upon

him to prove as these were in his exclusive knowledge by virtue of

Section 106 of Indian Evidence Act.

17. The trial court discussed the evidence in an apropos

manner and was absolutely justified in recording guilt of the

(11 of 11) [CRLAD -698/2014]

accused by the impugned judgment dated 19.07.2014, which does

not suffer from any infirmity, factual or legal, warranting

interference whatsoever.

18. Hence, the instant appeal fails and is dismissed as being

devoid of merit.

                                   (KULDEEP MATHUR),J                                          (SANDEEP MEHTA),J


                                    6 - Kshama D/-









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