Rajasthan High Court - Jodhpur
Sonia @ Sonaram vs State on 17 May, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1/2021
Sonia @ Sonaram son of Hiraji, Aged About 49 Years, B/c
Mungiya - Vagri Occupation Mazduri, R/o Gandhinagar Aburoad,
District Sirohi (Raj.).
(The appellant/ convict, presently lodged at the Central Jail,
Jodhpur).
----Appellant
Versus
The State of Rajasthan, through the learned Public Prosecutor at
Jodhpur.
----Respondent
For Appellant(s) : Mr. Vikram Choudhary
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE Ms. JUSTICE REKHA BORANA
JUDGMENT
Date of pronouncement ::: 17/05/2022
Order reserved on ::: 10/05/2022
BY THE COURT : PER HON'BLE MEHTA, J.
1. The appellant herein has preferred the instant appeal under
Section 374(2) CrPC being aggrieved of the judgment dated
03.08.2019 passed by the learned Additional Sessions Judge No.1,
Abu Road (Jurisdiction Sirohi) in Sessions Case No.40/2000, (CIS
No.194/2014) whereby, he has been convicted and sentenced as
below:-
Offences Sentences Fine Fine Default
sentences
Section 302 Life Imprisonment Rs.20,000/- 1 Month's
IPC Additional
Imprisonment
(2 of 10) [CRLAD-1/2021]
2. Brief facts relevant and essential for disposal of the appeal
are noted hereinbelow:-
Mr. Otaram, Sub-Inspector, Police Station Abu Road City,
received an information regarding a lady having been brought to
the Government Hospital, Abu Road in a burnt condition. He
reached the hospital at 00:45 AM on 05.07.1997 and recorded a
Parcha Bayan (Ex.P/33) of the victim under treatment Smt.
Shanta wife of Valaram, resident of Gandhinagar, Abu Road
wherein, she alleged that on 4 th/ 5th July, 1997 in the night at
about 00:15 AM, she was sleeping all alone at her house. At that
time, Sonia @ Sonaram son of Hiraji Mungiya, resident of
Gandhinagar, Abu Road, who was of their caste, and had 8-9
months earlier burnt her hutment, came into her house, poured
kerosene on her and set fire to her clothes. Her husband was
sleeping on the patio of the house. When she cried out, her
husband rushed in, brought her out and doused the fire. On
hearing the commotion, people from the locality collected there.
Sonia @ Sonaram ran away from the place of incident immediately
after setting fire to her. Sonia @ Sonaram had set her on fire with
an intention to kill her. Her husband brought her to the
Government Hospital in a taxi where she was undergoing
treatment. The ASI Otaram, forwarded the said report to the
Police Station, Abu Road City where, FIR No.143/1997 (Ex.P/34),
came to be registered for the offence punishable under Section
307 IPC and investigation was commenced.
3. Smt. Shanta Expired while undergoing treatment upon
which, her dead body was subjected to autopsy at the
(3 of 10) [CRLAD-1/2021]
Government Hospital, Abu Road and Postmortem Report (Ex.P/10)
was issued taking note of burn injuries all over the body of the
victim except for the soles of feet. Fard Surathaal Lash (Ex.P/38)
was prepared which also affirmed that the entire surface area of
the body of the deceased was burnt except for the soles. Because
of the burn injuries, the skin of the face, hands and chest had
peeled off and separated. A pertinent fact is noted in this
Surathaal Lash, that palms of both hands of the deceased were
full of blisters. The accused appellant absconded and a charge-
sheet came to be filed against him in his absence. The trial court
took recourse of procedure under Section 299 Cr.P.C and recorded
statements of the witnesses in absence of the accused. However,
it is significant to note that in these proceedings, statement of
Otaram, Sub-Inspector, who recorded Parcha Bayan of the victim,
was not recorded. Standing warrant of arrest was issued against
the accused who could be apprehended on 10.04.2018 whereafter,
proceedings were resumed. De novo trial was conducted by the
Additional Sessions Judge No.1, Abu Road. Charge was framed
against the accused appellant for the offence punishable under
Section 302 IPC. He pleaded not guilty and claimed trial.
4. The prosecution examined as many as 19 witnesses and
exhibited 50 documents to prove its case. The accused upon being
questioned under Section 313 CrPC, denied the prosecution
allegations, claimed to be innocent and craved an acquittal. It may
be stated here that by that time, trial post arrest of the accused
was commenced; two material witnesses pertaining to the Parcha
Bayan (Ex.P/33), namely Mr. Otaram, Sub-Inspector and Dr.
Shailendra Kumar had passed away and therefore, their evidence
(4 of 10) [CRLAD-1/2021]
could not be recorded. The so called eye-witness Valaram (P.W.6),
husband of the deceased, did not support the prosecution case
and was declared hostile. No other witness examined by the
prosecution, gave direct evidence so as to implicate the accused
appellant in the case. A summary of the prosecution evidence is
noted hereinbelow:-
(i) Iqbal Mohammad (P.W.1), formal witness of the Site Plan
(Ex.P/1) and seizure of clothes, etc. (Ex.P/2).
(ii) Prabhu (P.W.2), an alleged eye-witness, who did not support
the prosecution case and was declared hostile.
(iii) Maithi (P.W.3), an alleged eye-witness of the incident who did
not support the prosecution case and was declared hostile.
(iv) Ramesh Chandra (P.W.4), an alleged eye-witness, who did
not support the prosecution case and was declared hostile.
(v) Lakharam @ Baba (P.W.5), a witness of Panchnama Lash,
who also did not support the prosecution case and was declared
hostile.
(vi) Valaram (P.W.6), husband of the deceased, did not support
the prosecution case and was declared hostile.
(vii) Husaini Bai (P.W.7), did not support the prosecution case and
was declared hostile.
(viii) Galba (P.W.8), did not support the prosecution case and was
declared hostile.
(ix) Dr. Tarun Agarwal (P.W.9), proved the Postmortem Report
(Ex.P/10), opining that cause of death of Smt. Shanta was burn
injuries. He gave clear opinion that the entire body of the victim
was burnt except for the soles of the feet.
(5 of 10) [CRLAD-1/2021]
(x) Mohan Singh (P.W.10) and Surendra Chhabra (P.W.11)
clicked photographs of the dead body and the place of the
incident.
(xi) Dr. Raj Kumar (P.W.12) was a Member of the Medical Board,
which prepared the Postmortem report (Ex.P/10).
(xii) Achaluram (P.W.13) was posted as Sub-Inspector at the
Police Station Abu Road City at the date of incident. He deposed
on oath that Narpat Singh, Constable No.505 brought the Parcha
Bayan of Shanta which had been recorded by Otaram, Sub-
Inspector to the police station whereupon, FIR No.143/1997 was
registered. The witness identified the signature of Otaram on the
Parcha Bayan (Ex.P/33) and gave evidence regarding remaining
steps of investigation. He admitted in his cross-examination that a
small glass bottle of 180 ml capacity, which was being used as a
chimney, was found at the spot and there was no other source of
illumination in the hut, where the deceased was sleeping at the
time, she was burnt.
(xiii) Om Prakash (P.W.14) was a constable posted at the Police
Station Abu Road City. He proved arrest memo of the accused
(Ex.P/47).
(xiv) Bharmal (P.W.15) the constable, also proved the arrest
memo of the accused.
(xv) Khushal Singh (P.W.16), deposed on oath that because the
accused Sonia @ Sonaram could not be arrested in this case, a
charge-sheet was prepared against him in abscondence.
(xvi) Austin (P.W.17), stood as motbir witness in the memorandum
(Ex.P/49) of pointing out the place of incident by the accused.
(xvii) Parbia (P.W.18), did not support the prosecution case and
denied knowing the accused.
(6 of 10) [CRLAD-1/2021]
(xviii) Mithulal (P.W.19), was posted as an SHO, Police Station Abu
Road City in April, 2018. He proved the factum of arrest of the
accused and subsequent steps of recording his information and
identification of the place of incident.
5. Mr. Vikram Choudhary, learned counsel representing the
appellant vehemently and fervently urged that the learned trial
court committed gross error in facts as well as in law in placing
reliance upon Parcha Bayan (Ex.P/33) because the said Parcha
Bayan was not recorded as per law. The witnesses associated in
the Parcha Bayan namely Otaram, Sub-Inspector and Dr.
Shailendra Kumar were not examined at the trial and hence, the
statement could not have been admitted in evidence. His further
contention was that the Parcha Bayan (Ex.P/33) bears a thumb
impression of the victim, which fact in itself is enough to hold that
the document is a fabricated one. He drew the Court's attention to
the Postmortem report (Ex.P/10), evidence of Dr. Tarun Agarwal
(P.W.9) and the Fard Surathaal Lash (Ex.P/38) and urged that the
entire body of the victim was burnt including her palms and thus,
a well defined thumb impression, which is appended on the
document (Ex.P/33), could not have been affixed by the deceased.
He thus urged that the document is totally fabricated. He further
submitted that no other witness of the prosecution, gave evidence
against the accused appellant and hence, there is no evidence
whatsoever on the record to affirm his guilt. On these grounds, he
implored the Court to accept the appeal, set aside the impugned
judgment and acquit the accused appellant of the charges.
(7 of 10) [CRLAD-1/2021]
6. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment and the record.
7. Suffice it to say that none of the prosecution witnesses who
were allegedly present at the spot including Vala Ram husband
when the deceased Shanta received the burn injuries, supported
the prosecution case and were declared hostile as noted above.
Thus, there is no direct evidence to prove the guilt of the accused
appellant in this case.
8. It is indeed true that the accused appellant absconded
immediately after the incident but the mere fact of abscondence of
the accused would by itself, not absolve the prosecution of its
burden to prove the charges beyond all manner of doubt.
Abscondence in isolation, cannot be treated to be an inculpating
circumstance against the accused in a case of murder.
9. The only piece of evidence, which remains on record so as to
bring home the charge against the accused, would be Parcha
Bayan (Ex.P/33). At the outset, it may be stated here that
Otaram, Sub-Inspector, who recorded Parcha Bayan was neither
examined during the evidence recorded while the accused was
absconding, nor was he examined in the proceedings which were
reopened after the accused was arrested. The trial court, held that
as the witness Achaluram (P.W.13), proved the signature of
Otaram, Sub-Inspector on the document (Ex.P/33), the same
could be admitted in evidence. However, we have serious
reservations on this finding recorded by the trial court. Suffice it to
(8 of 10) [CRLAD-1/2021]
say, that even if Otaram, Sub-Inspector and Dr. Shailendra Kumar
had been examined at the trial, the prosecution would be under an
obligation to prove by proper evidence that the Parcha Bayan was
recorded by following the due process of law. The victim received
100% burns in the incident and thus positive evidence would be
required to satisfy the Court that she was in a fit condition mental
as well as physical to give the statement. However, since neither
Otaram who recorded the statement (Ex.P/33), nor Dr. Shailendra
Kumar who appended the certificate of fitness on the document
were examined at the trial, this mandatory requirement could not
be satisfied.
10. As has been noted above, when the postmortem was carried
out on the dead body of Shanta, the Medical Board gave a clear
opinion in the report (Ex.P/10) that the entire surface area of the
victim's body was burnt except for the soles of feet. Fard
Surathaal Lash (Ex.P/38) also indicates that the skin of the palms
was peeling off and the palms were covered by blisters. A bare
perusal of the Parcha Bayan (Ex.P/33) by the naked eye, indicates
that the right thumb impression of Shanta which is noted to have
been appended on this Parcha Bayan is unblemished with the
distinctive identifying characteristics of patterns; whorls and lines.
As the entire palmar area of the victim was burnt and blisters had
formed, there was no possibility whatsoever that such a
distinctively clear thumb impression of the victim would have been
marked on the Parcha Bayan.
11. In this background, the non examination of Otaram, Sub-
Inspector and Dr. Shailendra Kumar, assumes greater significance.
(9 of 10) [CRLAD-1/2021]
It is true that these two witnesses who were the fulcrum of the
prosecution case, could not be examined in evidence as the
accused remained absconding for a long period of time and the
witnesses passed away in the meantime but despite that, the
prosecution would not be absolved of its duty to prove the case as
against the accused by leading unimpeachable evidence.
Abscondence of the accused may be used to draw adverse
inference, this fact in isolation, cannot constitute substantive
evidence required to bring home the charges. It may be noted
here that this Court has already concluded that recording of the
Parcha Bayan (Ex.P/33) is by itself doubtful and the appending of
the thumb impression of the victim thereupon totally falsifies the
veracity of the document. In addition thereto, non-examination of
Mr. Otaram, Sub-Inspector and Dr. Shailendra Kumar, makes the
Parcha Bayan (Ex.P/33) totally inadmissible in evidence. Once the
Parcha Bayan is discarded, there remains no evidence whatsoever
on the record of the case so as to bring home the charge against
the accused appellant.
12. As a consequence of the above discussion, we are of the firm
opinion that the trial court was totally unjustified in admitting and
placing reliance upon the Parcha Bayan (Ex.P/33) so as to convict
the accused appellant for the charge of committing murder of
Smt. Shanta. The impugned judgment dated 03.08.2019 passed
by the learned Additional Sessions Judge No.1, Abu Road
(Jurisdiction Sirohi) in Sessions Case No.40/2000, (CIS
No.194/2014), does not stand to scrutiny and hence, the same is
reversed. The accused appellant is acquitted of the charge. He is
(10 of 10) [CRLAD-1/2021]
in prison and shall be released forthwith if not wanted in any other
case.
13. However, keeping in view the provisions of Section 437A
CrPC, the accused appellant is directed to furnish a personal bond
in the sum of Rs.40,000/- and a surety bond in the like amount
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 a Special
Leave Petition against the present judgment, on receipt of notice
thereof, the appellant shall appear before the Supreme Court.
14. The appeal is allowed in these terms.
(REKHA BORANA),J (SANDEEP MEHTA),J
-Devesh Thanvi/ Divya/-
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