Smt Pushpa Devi vs State Of Rajasthan Through Pp
2022 Latest Caselaw 505 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 386/2016

Smt. Pushpa Devi wife of Shri Mahaveer Singh, resident of Hingoli
Police Station Kumher District Bharatpur (Rajasthan)


           (At present confined in the Sewar Jail, Bharatpur).

                                                             ----Accused-Appellant

                                      Versus

State of Rajasthan through Public Prosecutor

                                                                   ----Respondent


For Appellant(s)           :     Mr. Anil Upman, Advocate
For Respondent(s)          :     Mr. Javed Choudhary, Additional
                                 Government Advocate/Public Prosecutor


            HON'BLE MR. JUSTICE PANKAJ BHANDARI
        HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
                                  Judgment

 Date of Judgment                                            20th January, 2022


Per : Chandra Kumar Songara, J. :
                                       ***

Instant criminal appeal under Section 374 (2) of the Code of

Criminal Procedure, 1973 has been preferred on behalf of the accused-

appellant, namely Smt. Pushpa Devi wife of Shri Mahaveer Singh,

assailing the impugned judgment of conviction and the order of

sentence dated 31.03.2016 passed by the Court of learned Additional

District & Sessions Judge, No.3, Bharatpur, (for short 'the trial Court'),

in Sessions Case No.124-A/2012, whereby the appellant-accused, vide

a separate order of even date, was convicted for commission of

offence punishable under Section 302 of Indian Penal Code and

sentenced to undergo life imprisonment with a fine of Rs.50,000/-

(2 of 11) [CRLA-386/2016]

and in default of payment of fine, to further undergo six months of

rigorous imprisonment.

The brief facts giving rise to this appeal are as follows :-

Complainant - Ravindra (PW-3) had submitted a written-

report (Exhibit-P/2) to the S.H.O. Police Station, Kumher, District

Bharatpur alleging therein that on 19.02.2012 his father Kishan Singh

had gone to the house of Mahaveer Singh to recover the loan amount of

Rs.1,50,000/- but did not return and on 20.02.2012 in the morning he

was informed through mobile cell by Pushpa wife of Mahaveer Singh

that she and her son tried to wake up his father to give him a cup of tea

but he was found unconscious, so he should come immediately. Upon

this information, he alongwith Ashok reached to the house of Mahaveer

and found his father dead on the first floor of the house. Gajendra and

Pushpa were standing near the bed where the dead-body of Kishan

Singh was lying. He informed the Police about the alleged incident. He

further stated that Pushpa, Gajendra and others hatched a conspiracy

and murdered his father.

On the aforesaid information, an F.I.R. bearing registration

No.65/2012 (Exhibit P-14) was lodged at Police Station Kumher, District

Bharatpur for commission of offence punishable under Section 302 of

I.P.C. After completion of investigation, Police presented the charge-

sheet against the accused persons.

Charge was framed by the learned trial Court for

commission of offence punishable under Section 302 of I.P.C. against

the accused-appellant. She pleaded not guilty to the charge and claimed

trial.

In order to prove its case, the prosecution examined as

many as nineteen-witnesses, during trial. The accused when examined

(3 of 11) [CRLA-386/2016]

under Section 313 of Cr.P.C., after closing of the prosecution evidence,

pleaded that she had been falsely implicated in the present case and

Kishan Singh was on the upper floor of her house, which is open place

and there is a possibility of murder being committed by some unknown

persons. She chose to lead evidence in her defence but did not produce

any defence evidence.

After hearing the arguments advanced by the learned Public

Prosecutor appearing for the State & learned counsel for the accused,

and after appreciating the evidence available on record, the learned trial

Court proceeded to convict and sentenced the accused-appellant Smt.

Pushpa Devi, as stated herein-above. Hence, the present appeal.

Learned counsel appearing for the appellant-accused has

submitted that nothing was specifically stated by the complainant in his

examination and denied the entire story of the prosecution and as such,

the entire case of the prosecution is doubtful. Counsel has further

submitted that there is no applicability of Section 106 of the Indian

Evidence Act in this matter because deceased was found on upper floor

of the house, which is open place and easy access was available to

everyone through the stairs as other persons were also present there at

the time of alleged incident and the accused-appellant was not alone, so

in these circumstances, the learned trial Court has committed a grave

illegality in invoking the provisions of Section 106 of the Indian

Evidence Act against the accused-appellant and without considering the

facts & circumstances of this case, the material and legal aspect of the

case, convicted the accused-appellant Smt. Pushpa Devi. Lastly, counsel

has prayed that the present appeal filed on her behalf be allowed by

acquitting the appellant of the charge and setting aside the impugned

judgment.

(4 of 11) [CRLA-386/2016]

Learned counsel appearing for the State has opposed the

submissions advanced by the learned counsel appearing for the

accused-appellant and urged that as per the statements of the

prosecution witnesses and the material made available on record, the

prosecution has proved its case beyond reasonable doubt as the

impugned judgment passed by the learned trial Court is based on

cogent and sound reasons. Hence, the impugned judgment against the

accused-appellant Smt. Pushpa Devi does not warrant any interference

of this Court in the appeal.

We have given our thoughtful consideration to the rival

submissions made by the learned counsel appearing for the parties and

gone through the impugned judgment as well as material made

available on record.

The prosecution has examined as many as nineteen-

witnesses, whereas the accused-appellant has not examined any

witness in her defence.

Mahendra Singh (PW-2) and Amar Singh (PW-4) deposed

about the memo of Panchnama of deceased Kishan Singh vide Exhibit-

P/1. Devi Singh (PW-5) and Jaswant (PW-6) deposed about the memo

of site-plan of the place of incident vide Exhibit-P/4. Rajesh Singh (PW-

7) and Kishanpal Singh (PW-10) deposed about the memo of

photography of deceased and place of incident vide Exhibit- P/5.

Exhibit-P/6 is the seizure memo of two sealed pack viscera Jar of the

deceased Kishan Singh. Exhibit-P/7 is the arrest memo of the accused

Smt. Pushpa Devi. Jagdish (PW-14) deposed about the acknowledgment

receipt of S.F.S.L. Jaipur vide Exhibit-P/11. Bachchu Singh (PW-19)

deposed about the photographs with the negatives vide Exhibit-P/15 to

P/21 respectively. Thus, all above-mentioned nine prosecution witnesses

are formal witnesses.

(5 of 11) [CRLA-386/2016]

Chameli (PW-8), Dharmveer (PW-9), Mahesh (PW-12),

Ishwari Prasad (PW-13), Rajendra (PW-15) and Geeta (PW-16), all six

prosecution witnesses are hostile witnesses.

Dr. H.S. Nawal (PW-18) deposed about the Post Mortem

Report of deceased Kishan Singh vide Exhibit-P/24. He further deposed

that as per opinion of the Medical Board, the cause of death was due to

Asphyxia. The said opinion marked as G to H, reads as under :-

"From all above post-mortem findings, we Board Members have opinion that the cause of death is due to Asphyxia, due to manual strangulation till chemical and Toxicological examination report of viscera preserved received from F.S.L. Jaipur. The duration of death b/w 6 Hrs. to 24 Hrs., from the time of post-mortem. All injuries are ante-mortem in nature".

In the cross-examination, it was admitted by Dr. H.S. Nawal

(PW-18) that in his opinion the strangulation was manual. As per his

opinion, the deceased was healthy and well built, who could only be

throttled by able-bodied person. The sample of deceased were sent to

the S.F.S.L. Jaipur for alcohol and intoxication report. The report is on

record. As per report, on chemical examination, portions of viscera from

two packets gave negative tests for metallic poisons, ethyl and methyl

alcohol etc. It could not be said that in this case, whether deceased was

awake or sleeping at the time of throttling.

Jaya Singh (PW-17) is the Investigating Officer of the case,

who deposed about the investigation of the case. She further deposed

about the written-report vide Exhibit-P/2, F.I.R. No.65/2012 registered

at Police Station Kumher vide Exhibit-P/14, memo of Panchnama of

deceased Kishan Singh vide Exhibit-P/1, memo of site-plan of the place

of incident vide Exhibit-P/4, memo of photography of deceased and

place of incident vide Exhibit-P/5, seizure memo of two sealed pack

viscera Jar of deceased Kishan Singh vide Exhibit-P/6, arrest memo of

accused Smt. Pushpa Devi vide Exhibit-P/7, acknowledgment receipt of

(6 of 11) [CRLA-386/2016]

S.F.S.L. Jaipur vide Exhibit-P/11, photographs with the negatives vide

Exhibit-P/15 to P/21, Inquiry report of accused Smt. Pushpa Devi vide

Exhibit-P/22 and the Final Report submitted by the S.H.O. vide Exhibit-

P/23.

In her cross-examination, Investigating Officer (PW-17)

admitted that during investigation, she had not received the mobile of

Kishan Singh from the house of accused Pushpa. During investigation,

Ravindra son of Kishan Singh did not provide any documentary evidence

of debt of Rs.1,50,000/- to be collected from Mahaveer Singh, husband

of Pushpa, as he stated in the F.I.R. As per the investigation, Kishan

Singh had good relations with Pushpa and they used to travel together.

There was a kitchen on the upper floor of the house, which had enough

space to use the same for other purpose. The second floor on which

dead-body was found was open from all sides but the room was closed.

It is true that the deceased was a healthy person of forty-five years of

age but with the body shaped like cylinder. There was no injury on the

body of the accused-appellant at the time of arrest.

Ashok Kumar (PW-1) deposed that when he and Ravindra

reached at the place of incident "Ravindra said to Pushpa that she has

killed his father. On this, Pushpa replied that she had made a mistake

and whatever happened, had happened and she would return their

money. Kishan Singh was murdered by Pushpa, her son and her

mother-in-law due to the loan amount.

In his cross-examination, it was admitted by Ashok Kumar

(PW-1) that he did not know Pushpa before the incident and when they

reached the house where Kishan Singh was lying dead, none other

than, Pushpa, her son, her sister and her mother-in-law were present.

When Ravindra asked to Pushpa, she replied sorry Bhaiya, she made a

(7 of 11) [CRLA-386/2016]

mistake, whatever happened, had happened, why it was not written in

Exhibit-D/1, he could not say anything.

It reveals from the cross-examination of said prosecution

witness (PW-1) that his testimony is contradictory, as per Exhibit-D/1

statement recorded under Section 161 of Cr.P.C. Furthermore, his

aforesaid examination-in-chief is also not reliable, as it is not supported

by Ravindra (PW-3) in his testimony, who is the complainant and the

son of the deceased Kishan Singh.

Ravindra (PW-3) who is the complainant and son of the

deceased deposed that at around one year ago i.e. 19.02.2012, his

father Kishan Singh had left for Hingoli at about 10:00 A.M. to collect

his debt of Rs.1,50,000/- from Mahaveer. On 20.02.2012 at around

08:00 A.M. he received a call from Pushpa from his father's phone and

she told him that his father was not waking up when Pushpa and her

son tried to wake him up for morning tea. Pushpa asked him to come as

soon as possible to see his father. Upon receiving this information,

Ashok Kumar (PW-1) and he left for Mahaveer's home in Hingoli and

where they saw that his father was lying dead on the bed on the upper

floor of the house. Rajendra & Pushpa were standing beside the dead-

body of his father. After this, he informed his family and called the

Police. When Police arrived on the spot, he told them about the incident

and "Panchnama" was prepared vide Exhibit-P/1, which contains his

signatures at two places i.e. E to F. Photography of the spot was

conducted by the Police, which is a part of the record. Police brought

the dead-body to Kumher and he lodged a report vide Exhibit-P/2,

which contains his signature at two places i.e. A to B. The post-mortem

was conducted and the dead-body of his father was handed over to him

vide Exhibit-P/3, which contains his signatures from A to B. The site-

plan of the place of incident was also prepared vide Exhibit-P/4, which

(8 of 11) [CRLA-386/2016]

contains his signatures from A to B. He did not find the debt money for

which his father had gone nor he saw any injury on his body.

In his cross-examination, it was admitted by Ravindra (PW-

3) that his family had no enmity with Pushpa. He received the dead-

body of his father and cremated him and did the final rites. After this,

he tried to inquire at Hingoli and it came to his knowledge that on the

night of alleged incident, some miscreants/criminals had gone to the

upper floor of the house and quarrelled with his father Kishan Singh. It

is true that Pushpa was not a suspect in a murder case of his father. He

had given similar statement to the S.H.O. that as per his knowledge,

Pushpa is innocent in this case.

From the above appreciation of evidence, it is clear that in

the present case, the prosecution examined as many as nineteen-

witnesses during trial. Nine prosecution witnesses are formal witnesses

and six prosecution witnesses are hostile witnesses. Testimony of Ashok

Kumar (PW-1) is not reliable, as his statement is contradictory to the

statement recorded under Section 161 of Cr.P.C. vide Exhibit-D/1 and

not supported by Ravindra (PW-3) complainant.

Dr. H.S. Nawal (PW-18) deposed about the Post Mortem

Report of deceased Kishan Singh vide Exhibit-P/24 and admitted in his

cross-examination that the report gave negative tests for metallic

poisons, ethyl and methyl alcohol etc.

Jaya Singh (PW-17) being Investigating Officer of the case,

deposed about the investigation of the case.

Ravindra (PW-3), who is the complainant and the son of

deceased Kishan Singh. His testimony reveals that he has not seen any

injury on the body of the deceased. Further, he has no doubt on Pushpa

with regard to alleged murder of his father Kishan Singh. He further

(9 of 11) [CRLA-386/2016]

admitted in cross-examination that as per his knowledge, Pushpa is an

innocent in this case.

Ravindra (PW-3) complainant and Jaya Singh (PW-17),

Investigating Officer, both admitted in their cross-examination that the

complainant Ravindra and his father Kishan Singh had no enmity with

Pushpa.

Ravindra (PW-3) complainant admitted in his cross-

examination that after funeral, the fact came to his knowledge that on

the alleged night of incident, some miscreants came to upper storey of

Pushpa's house and they had a scuffle with Kishan Singh. Jaya Singh

(PW-17) Investigating Officer admitted in her cross-examination that

the second storey was open from all the sides where the deceased was

found. Ravindra (PW-3) deposed that Gajendra and Pushpa were in the

house. Ashok Kumar (PW-1) admitted in his cross-examination that

when they reached the house where deceased Kishan Singh was lying,

none other than, Pushpa, her son, her sister and her mother-in-law

were also present. Jaya Singh (PW-17) Investigating Officer admitted in

her cross-examination that when she arrested Pushpa, she did not find

any injury on her body. Dr. H.S. Nawal (PW-18) admitted in his cross-

examination that as per post mortem report, deceased was healthy and

well built, who could only be throttled by able-bodied person. As per his

opinion, the strangulation was manual and he could not say that

whether the throttling of deceased was done in the state of awakening

or sleeping.

Therefore, there is no applicability of Section 106 of the

Indian Evidence Act in this matter because deceased was found on the

upper floor of the house, which is open place, and easy access is

available to everyone through the stairs as other persons were also

present and the accused-appellant was not alone, so in these

(10 of 11) [CRLA-386/2016]

circumstances, learned trial Court has committed an illegality in

invoking the provisions of Section 106 of the Evidence Act against the

accused-appellant.

It is clear that the prosecution has failed to prove the

motive of the accused-appellant. Ravindra (PW-3) complainant, who is

the son of the deceased does not specifically support the prosecution

story. Nothing has been recovered from the accused-appellant. Jaya

Singh (PW-17) Investigating Officer, did not find any injury marks on

the body of the accused Pushpa, while arresting her. The testimony of

Ashok Kumar (PW-1) is not reliable. Other six prosecution witnesses

have also not supported the case of prosecution and turned hostile.

Hence, the prosecution has failed to prove the complete chain of

circumstantial evidence.

The learned trial Court has not properly appreciated the

cross-examination of the complainant, Investigating Officer and other

aforesaid prosecution witnesses.

In view of above discussions, we are of the firm opinion that

the prosecution has miserably failed to prove the charge levelled and

also failed to establish the guilt of accused-appellant beyond any

reasonable doubt. Therefore, the appellant is liable to be acquitted of

the charge under Section 302 of Indian Penal Code by giving her the

benefit of doubt.

Consequently, the present appeal is allowed. The impugned

judgment of conviction and the order of sentence dated 31.03.2016

passed by the Court of learned Additional District & Sessions Judge,

No.3, Bharatpur is set aside. The appellant Smt. Pushpa Devi is

acquitted of the charge under Section 302 of I.P.C. The appellant Smt.

Pushpa Devi, who is in custody, be released forthwith, if not required in

any other case.

(11 of 11) [CRLA-386/2016]

Keeping in view of the provisions of Section 437-A of the

Code of Criminal Procedure, 1973, the accused-appellant, namely Smt.

Pushpa Devi wife of Shri Mahaveer Singh is directed to forthwith furnish

a personal bond in the sum of Rs.50,000/- and a surety bond in the like

amount, before the Registrar (Judicial) of this Court, which shall be

effective for a period of six months with the stipulation that in the event

of filing of Special Leave Petition against the judgment or on grant of

leave to appeal, the accused-appellant Smt. Pushpa Devi wife of Shri

Mahaveer Singh, on receipt of notice thereof, shall appear before the

Hon'ble Supreme Court.

(CHANDRA KUMAR SONGARA),J (PANKAJ BHANDARI),J

ASHOK/1

Powered by TCPDF (www.tcpdf.org)