Rajasthan High Court - Jodhpur
Santosh Kumar vs State Of Rajasthan on 27 January, 2022
Bench: Sandeep Mehta, Sameer Jain
(1 of 16) [CRLAD-229/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 229/2019
Santosh Kumar S/o Shri Shrawan Kumar, Aged About 45 Years,
By Caste Bishnoi, R/o Village Sawantsar, Presently Dhani Rohi
Kotasar, Tehsil Sri Dungargarh, District Bikaner. (Presently
Lodged In Central Jail, Bikaner).
----Appellant
Versus
The State Of Rajasthan
----Respondent
For Appellant(s) : Mr. D.S. Thind
Ms. Sapna Vaishnav
For Respondent(s) : Mr. R.R. Chhaprawal, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
Date of pronouncement : 27/01/2022
Judgment reserved on : 25/11/2021
BY THE COURT : PER HON'BLE MEHTA, J.
The appellant herein has preferred the instant appeal
under Section 374 CrPC being aggrieved of the judgment dated
02.08.2019 passed by the learned Additional Sessions Judge,
No.2, Bikaner (Camp Sri Dungargarh), District Bikaner in Sessions
Case No.7/2014, whereby he has been convicted for the offence
punishable under Section 302 IPC and sentenced to undergo life
imprisonment alongwith a fine of Rs.10,000/- and in default of
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payment of fine, further to undergo six months' simple
imprisonment.
Briefly, the facts relevant and essential for disposal of
the appeal are noted as under :-
Phoosa Ram (P.W.3) submitted a written report (Ex.P/3)
to the SHO, Police Station Seruna, District Bikaner on 28.02.2014
at 11.30 a.m. alleging inter alia that his daughter Smt. Sua Devi
was married to the appellant about 15 years ago. Ever since the
marriage, the appellant used to indulge in harassing and
humiliating Smt. Sua, for which numerous Panchayats were also
convened. The family members also tried to counsel the
appellant, but he did not relent from his vicious conduct. On the
previous night at about 02.30 a.m. the appellant's brother Mohan
Ram called the informant on his phone and told him that Santosh
had excessively thrashed Smt. Sua and that she was being taken
to hospital in a serious condition. On getting this information, the
informant immediately rushed to the PBM Hospital, Bikaner and
there, he came to know that his daughter Sua had passed away
and her dead body was lying in the mortuary. He alleged that the
appellant had beaten Smt. Sua to death.
On the basis of this report, an FIR No.33/2014
(Ex.P/22) came to be registered at the Police Station Seruna,
District Bikaner for the offence punishable under Section 302 IPC
and investigation was assigned to SHO Mr. Surendra Kumar
(P.W.13). During the course of investigation, usual procedure, viz.
preparation of the site inspection plan, inquest memo etc., was
undertaken, blood stained and control soil was collected from the
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spot. The dead body of Smt. Sua was got subjected to
postmortem at the PBM Hospital, Bikaner. Statements of the
material witnesses were recorded. The accused appellant was
arrested and acting in furtherance of the informations provided by
him to the Investigating Officer, his own blood stained clothes and
a stick were recovered. The recovered articles were forwarded to
the FSL for serological analysis for detection of blood etc. and
reports Ex.P/33 and Ex.P/34 were received from the FSL. After
concluding investigation, a charge-sheet came to be filed against
the appellant herein for the offence punishable under Section 302
IPC. As the offence was exclusively triable by a Sessions court,
the case was committed to the Court of the Sessions Judge,
Bikaner, from where the same was transferred for trial to the
Court of the Additional Sessions Judge, No.2, Bikaner (Camp Sri
Dungargarh).
The trial court framed charge against the appellant for
the offence punishable under Section 302 IPC. He pleaded not
guilty and claimed trial. The prosecution examined 13 witnesses
and exhibited 57 documents and 14 articles to prove its case.
The accused was confronted with the prosecution allegations in his
statement recorded under Section 313 CrPC, to which he offered a
denial and claimed to be innocent. He specifically asserted that he
was not present in his house on the day of the incident and was at
Nokha at the relevant point of time. He returned home on coming
to know that his wife had been injured. He feigned ignorance as
to how she received the injuries.
(4 of 16) [CRLAD-229/2019]
After hearing the arguments advanced by the Public
Prosecutor and the defence counsel and appreciating the evidence
available on record, the learned trial court proceeded to convict
and sentence the appellant as above by the impugned judgment
dated 02.08.2019, which is assailed in this appeal.
Learned counsel for the appellant vehemently and
fervently urged that there is no evidence on the record of the case
to connect the appellant with the alleged crime. The appellant
was not present in his home at the time of the incident. He had
no motive to murder his wife. The sole eye-witness Sushri Kesar
(P.W.2), the minor child of the appellant and the deceased, did not
support the prosecution case and was declared hostile. None of
the witnesses examined by the prosecution stated about presence
of the appellant in the home at the time of the incident. He urged
that the recoveries of the blood stained clothes and the alleged
weapon of offence shown to have been effected from the appellant
are totally fabricated. Only one independent witness Madan Lal
(P.W.8) was associated in the recovery of these articles. The other
witness Dayanand (P.W.6) was a Police Constable. Madan Lal did
not support the prosecution case and turned hostile. The evidence
of Dayanand is not trustworthy and thus, the recoveries do not
inspire confidence. His alternative submission was that even if the
prosecution case, which is primarily based on the reverse burden
of proof by virtue of Section 106 of the Evidence Act, is accepted
to be true, then also, considering the fact that all the injuries
noticed by the Medical Jurist on the body of the deceased Smt.
Sua were on non vital body parts, it can clearly be inferred that
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the appellant had neither the intention nor the knowledge that by
inflicting such injuries, he could cause death of his own wife. He
urged that at best the conviction of the appellant could have been
recorded for the offence punishable under Section 325 or 304 Part
II IPC. On these submissions, Mr. Thind craved acceptance of the
appeal seeking acquittal for the appellant. His alternative prayer
was to tone down the offence from one under Section 302 IPC to
that under Section 325 or 304 Part II IPC and to reduce the
sentence awarded to the appellant to the period already
undergone by him, which is well in excess of 7 years.
Learned Public Prosecutor, on the other hand,
vehemently and fervently opposed the submissions of the
appellant's counsel. He urged that the plea taken by the appellant
regarding not being present in the house on the date of the
incident is totally cooked up. The appellant claimed that he was at
Nokha, but no evidence was led in support of this flimsy plea of
alibi. Learned Public Prosecutor urged that no such suggestion
was given to the child witness Kesar (P.W.2), who, despite turning
hostile, did not state that her father was not present in the house.
He contended that the defence theory of alibi was not put to the
most important prosecution witness Sushri Kesar, who apparently
was won over by the accused and hence, a strong inference is
required to be drawn that the accused was not desirous of
disputing his presence in the house at the time of the incident.
Learned Public Prosecutor further submitted that the first
informant Phoosa Ram, father of the deceased, made distinct
allegations regarding the appellant continuously harassing,
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humiliating and tormenting the deceased Smt. Sua ever since the
marriage. This continuous cruel conduct of the appellant with his
wife coupled with the fact that he brutally assaulted the lady in
the dead of the night causing her as many as 12 injuries, of which
8 were fractures, establishes beyond all manner of doubt that the
intention of the appellant was undeniably to cause death of his
own wife and hence, the plea that the non-infliction of injuries on
the vital body parts should be considered a valid reason to tone
down the offence is not tenable. Learned Public Prosecutor also
submitted that after being arrested, the appellant got his own
blood-stained clothes and the stick used to assault the deceased
recovered. When the Ghaghra of the deceased, trousers and shirt
of the accused and the stick recovered at his instance were
examined at the FSL, all tested positive for presence of 'A' group
blood, for which the appellant could not offer any explanation.
Learned Public Prosecutor, thus urged that the appellant brutally
assaulted his own wife by a stick causing her 12 injuries. Not only
that, the appellant made no effort to take the injured lady to the
hospital and as her condition was precarious, the other family
members of the appellant took her to the hospital, whereas the
appellant escaped from the spot after concealing his blood stained
clothes and the stick. Hence, as per the learned Public Prosecutor,
the conduct of the appellant is also such that inference of intention
to cause death of the lady ought to be drawn against him. On
these submissions, learned Public Prosecutor implored the court to
dismiss the appeal and to affirm the conviction of the appellant as
recorded by the trial court.
(7 of 16) [CRLAD-229/2019]
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment and have carefully re-appreciated the
evidence available on record.
It is admitted that the appellant and the deceased were
married 15 years ago. Six children were born to them, of which
four were living at the maternal grandfather Phoosa Ram's house
who, upon being examined as P.W.3 made a categoric statement
that ever since the marriage, the accused Santosh Kumar would
consume liquor and beat Smt. Sua, who would call the witness on
phone and share her plight. He alleged that Smt. Sua was killed
by Santosh Kumar. Mohan Ram, the elder brother-in-law of Smt.
Sua, called and told him that Santosh Kumar had beaten Sua.
The witness pleaded with Mohan Ram that if his daughter was
alive, she should be taken to the hospital and then, he alongwith
his son Bhagwana Ram went to the PBM Hospital where they were
informed that Sua had passed away because of the injuries. On a
perusal of the cross-examination conducted from the witness, it
becomes clear that he stood firm on the version as deposed by
him regarding Mohan Ram having called him at about 02.30 a.m.
to share the information regarding beating of Sua. The witness
was confronted with the Written Report (Ex.P/3) and he admitted
that there was omission in the report that Sua used to share her
plight with him on phone. The witness stated that he was illiterate
and thus, could not explain this omission. On the aspect of
maltreatment meted out to the deceased, the witness alleged that
the accused used to misbehave and beat up the victim after
(8 of 16) [CRLAD-229/2019]
consuming liquor. He did not allege that any demands were made
by the accused. Hence, there is no convincing evidence of motive,
which can be attributed to the appellant for committing the crime.
A specific suggestion was given to the witness that Mohan Lal and
Champa Lal asked for the dead body of Sua to conduct the last
rites, but he refused because the husband Santosh Kumar was
missing. Apparently, thus, the accused appellant was not even
present in the hospital even though his wife of 15 years had been
brought there. A suggestion was given to the witness in cross-
examination that Mohan informed him that Sua was seriously
injured and had been taken to the PBM Hospital and thus, the
defence itself has expounded the theory of Sua receiving serious
injuries in the night time and Mohan calling up Sua's father to tell
him of this incident. If at all the appellant was innocent as he
claims, then in normal course of events, he would be expected to
call his father-in-law and to tell him regarding the condition of
Sua. Not a single word was put to the witness in cross-
examination regarding his assertion that the appellant used to
beat up the lady after consuming liquor. Thus, the fact that the
appellant used to treat his wife with cruelty after consuming liquor
is well established from the evidence of this witness. It is also
proved that Mohan Lal, brother of the appellant herein, called
Phoosa Ram in dead of the night and told him that Sua had been
seriously injured and was being taken to the hospital. This
communication made by Mohan Ram to the first informant Phoosa
Ram is a relevant fact being a part of the same transaction and is
admissible by virtue of Section 6 of the Evidence Act.
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Champa Lal (P.W.1) did not support the prosecution
case and was declared hostile.
Kesar (P.W.2), being the daughter of the appellant and
the deceased Smt. Sua did not support the prosecution case and
was declared hostile. However, what is relevant to note from the
statement of this witness is that she was not given any suggestion
by the defence that the appellant was not present in the house at
the time of the incident. The fact that Sushri Kesar even denied
having seen the injuries of her mother clearly shows that she was
totally under the influence of the accused appellant when she
stepped in the witness box. In normal course of events, it can be
presumed that husband and wife would be present in the house,
more particularly, when the time of the incident was the dead of
the night. Thus, the failure of defence to give any suggestion to
the child regarding the plea of alibi taken by the accused
completely discredits this theory.
Mahaveer (P.W.4) and Mangilal (P.W.5) are the attesting
witnesses of the documents, viz. site inspection plan (Ex.P/4),
Surat Haal Lash (Ex.P/7), Panchnama Lash (Ex.P/6), seizure
memo of clothes of deceased Sua Devi (Ex.P/8) and seizure memo
of blood stained soil, control soil and broken bangle pieces
(Ex.P/9). Both the witnesses stood firm regarding preparation of
these documents and collection of the case articles.
Dayanand (P.W.6) was an attesting witness in the
procedure of arrest of the accused and the recovery of the clothes
and the wooden stick effected at his instance vide seizure memo
(10 of 16) [CRLAD-229/2019]
Ex.P/11. He too stood firm on this procedural aspect of
investigation.
Rajendra (P.W.7) is the son of the appellant and the
deceased Sua and was aged about 11 years at the time of the
incident. He too resiled from the previous police statement
(Ex.P/13) and did not support the prosecution case. He feigned
total ignorance regarding his mother's fate. However, akin to the
evidence of Sushri Kesar (P.W.2), no suggestion was given to this
witness as well regarding the plea of alibi taken by the appellant in
his defence.
Madan Lal (P.W.8) totally resiled from the prosecution
case and was declared hostile.
Mohan Ram (P.W.9), being the brother of the appellant
herein, also resiled from the prosecution case and was declared
hostile. However, this witness stated that his brother, the
appellant herein, was not present in the house at the time of the
incident.
Dr. Sanjeev Buri (P.W.10) posted as Medical Jurist in
the PBM Hospital, Bikaner, was one of the members of the medical
board, which conducted autopsy on the dead body of Sua and
issued the postmortem report Ex.P/16, wherein the following
injuries were noted :-
1. Two punctured lacerated wounds on the distal part of the right
forearm admeasuring 1.5 cm x 1 cm and 1.3 x 1 cm each.
2. A lacerated wound admeasuring 2.5 cm x 1.5 cm on the
forward part of the right forearm.
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3. A lacerated wound 2 cm x 1.5 cm on the right forearm middle
part. Both the forearm bones underneath this injury were broken.
4. Swelling on the distal one-third part of the right forearm,
underneath which both the bones were fractured.
5. A lacerated wound with both bones fractured on the one-third
distal part of the left arm.
6. Swelling on the left elbow with fracture/dislocation of the elbow
joint.
7. Abrasion admeasuring 2 cm x 1.5 cm on the right knee front
side.
8. Abrasion admeasuring 1.5 cm x 1 cm on the left knee.
9. A lacerated wound admeasuring 2 cm x 1.5 cm on the lower
part of the left leg; the tibia bone was fractured.
10. Swelling on the right leg with fractures of the tibia and fibula
bones.
11. A lacerated wound admeasuring 1.5 cm x 1.5 cm on the distal
one-third part of the left leg with fracture of both bones.
12. A wound admeasuring 2 cm x 1.5 cm on the lateral part of
the left leg with both bones fractured.
The board found that all the internal organs of the lady
were healthy. The liver and spleen were pale because of loss of
blood. All the injuries were opined as caused by a blunt weapon
and were antemortem in nature. The medical board opined that
the cumulative effect of the injuries was sufficient in the ordinary
course of nature to cause death. A question regarding any
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noticeable injury on vital parts of the body was put to the Medical
Jurist, which he replied in the negative.
Ram Singh (P.W.11) was posted as the Malkhana
Incharge at the Police Station Seruna at the relevant point of time.
He proved the factum of deposit of the case articles in the
Malkhana of the police station and the forwarding thereof to the
FSL through Constable Shrawan Kumar. His evidence is wholly
reliable.
Shrawan Kumar (P.W.12) was posted as Constable at
the Police Station Seruna. He gave evidence regarding transit of
Malkhana articles to the FSL. His evidence is also unimpeachable.
Surendra Kumar (P.W.13) was posted as the SHO,
Police Station Seruna on the date of the incident. He gave
evidence regarding various steps of investigation, including
recoveries of the blood stained articles, which we have already
referred to supra. On a perusal of the cross-examination
conducted from this witness, we find that nothing significant was
elicited by the defence, which can create a doubt on the bona
fides of investigation undertaken by the witness. What is
significant to note from the statement of this witness is that the
defence did not put a single question regarding the plea of alibi
taken by the accused in his statement under Section 313 CrPC
even to the Investigating Officer. The only suggestion which was
given by the defence to the SHO was that a dispute was prevailing
between the parties on the issue of marriage of the two daughters
of the appellant and the deceased.
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The bald plea which was taken by the appellant in his
statement under Section 313 CrPC was that of denial. He claimed
to be at Nokha on the day of the incident and stated that he came
to know on the next day that his wife had received the injuries.
After an over all appreciation of the evidence available
on record, we are of the view that by way of natural human
conduct, it can safely be presumed that the appellant and the
deceased were unquestionably present in the house when the
incident took place. The denial of the two child witnesses Sushri
Kesar (P.W.2) and Rajendra (P.W.7) regarding they not having
seen anything happening to their mother makes it clear that the
accused has won over these material witnesses, who are his own
children, by exerting influence over them. However, even though
both the children were declared hostile, the defence did not
muster the courage to give them a suggestion regarding the
highly belated plea of alibi taken by the accused in his statement
under Section 313 CrPC. The accused appellant, after being
arrested got recovered his blood stained clothes and a blood
stained stick, which upon being analyzed at the FSL, tested
positive for the presence of 'A' group human blood, which was also
the blood group found on the Ghaghra of the deceased. It is
manifest that the accused must have got blood stains on his
clothes while he was assaulting his wife, deceased Sua. The stick,
which the accused got recovered also gave test for presence of the
same blood group. The accused did not offer any explanation for
the presence of the 'A' group blood on these articles. Therefore, in
addition to the reverse burden of proof as per Section 106 of the
(14 of 16) [CRLAD-229/2019]
Evidence Act, the accused has also failed to explain the seriously
incriminating recoveries of his own blood stained clothes and the
stick having presence of the same blood group as that of the
deceased. These circumstances conclusively establish the
complicity of the accused in the assault made on Smt. Sua, in
which, she was caused the injuries, which we have described
above. Thus, there is no doubt in the mind of the court that the
accused appellant was the assailant of Smt. Sua.
Having held so, now we proceed to consider the
submission of the learned defence counsel regarding toning down
of the offence.
On a perusal of the statement of the Medical Jurist Dr.
Sanjeev Buri (P.W.10), which we have extensively referred to
supra, it becomes clear that not a single injury was caused on the
vital body parts of the deceased, viz. brain, neck, chest, abdomen
etc. All the 12 external injuries were found on her lower and
upper limbs. 6 of the wounds were associated with fractures, the
cumulative effect whereof led to shock and death of the victim.
No significant motive was attributed to the accused regarding the
assault. In a suggestion, which was given to the Investigating
Officer, the defence portrayed a theory that a dispute was going
on between the spouses owing to the efforts being made by
Phoosa Ram and his family members to marry off Urmila,
daughter of the appellant and the deceased. Even Phoosa Ram
(P.W.3) agreed in his cross-examination that they had fixed the
relation of Urmila in the village Kankanuwala, but the accused did
not agree, on which the proposal was called off. It is quite
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possible that the spouses might have quarreled on this issue
because there was no other immediate motive for the appellant to
have assaulted his own wife. Thus, we are in agreement with the
submission of the learned counsel for the appellant, that while
inflicting such injuries on the non-vital body parts of Smt. Sua, as
were described by the Medical Jurist in the postmortem report, the
accused did not have any intention to cause death of his wife.
However, it can definitely be inferred that the accused had
knowledge that by inflicting repeated blows on the limbs, lower as
well as upper, of his wife, he may endanger her life, and as such,
the act of the accused would be covered by Clause II of Section
304 IPC and not by Section 302 IPC. As a consequence, the
conviction of the appellant deserves to be toned down from one
under Section 302 IPC to one under Section 304 Part II IPC.
Reference in this regard may be had to the Judgments rendered
by Hon'ble the Supreme Court in the case of Kalu Ram Vs. State
of Rajasthan [AIR 2000 SC 3630] and Lavghanbhai
Devjibhai Vasava Vs. State of Gujarat [(2018) 4 SCC 329].
Accordingly, the impugned judgment dated 02.08.2019
passed by the learned Additional Sessions Judge, No.2, Bikaner
(Camp Sri Dungargarh), District Bikaner in Sessions Case
No.7/2014 is modified in the terms that the conviction of the
appellant is altered from the offence punishable under Section 302
IPC to one under Section 304 Part II IPC. For the said offence,
the appellant is sentenced to undergo rigorous imprisonment of
eight years alongwith a fine of Rs.10,000/- and in default of
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payment of fine, he shall further undergo simple imprisonment of
six months.
The appeal is partly allowed in these terms.
The record be returned to the trial court.
(SAMEER JAIN),J (SANDEEP MEHTA),J
Pramod/-
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