Manaram vs State
2022 Latest Caselaw 8082 Raj

                                        (1 of 23)                 [CRLA-1041/2015]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 1041/2015

Manaram son of Shri Heera Ram, by caste Jat, aged about 32
years, resident of village Kukunda, PS Dangiyawas, Tehsil &
District Jodhpur.
(At present lodged in Central Jail, Jodhpur)
                                                                   ----Appellant
                                    Versus
State of Rajasthan
                                                                 ----Respondent


For Appellant(s)          :     Mr. Vinod Kumar Sharma
For Respondent(s)         :     Mr. B.R. Bishnoi, AGC



           HON'BLE MR. JUSTICE SANDEEP MEHTA
     HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment pronounced on                  :::             27/05/2022
Judgment reserved on                    :::             19/05/2022



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

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 11.09.2015 passed by the learned

Additional Sessions Judge No.2, Jodhpur Metropolitan in Sessions

Case No.19/2015:

Offences            Sentences                   Fine             Compensation

Section 302 IPC     Life Imprisonment Rs.5,000/- Rs.3,00,000/-





                                       (2 of 23)                 [CRLA-1041/2015]



2.   Being aggrieved of         his    conviction and          sentences, the

appellant has preferred the instant appeal under Section 374(2)

Cr.P.C.

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

are noted herein below:

The co-convict Ladu Devi (since expired) was married to the

deceased Shri Hanuman Ram. Two children were born from the

wedlock. Hanuman Ram was employed in the Armed Forces and

was posted at Himachal Pradesh as a Nayak at the time of the

incident. On 24.08.2013, Hanuman Ram was on leave and was

staying in quarter No.252/8, Lancer Line Residential Colony,

Jodhpur with his family. In the night intervening 24 th/25th August,

2013, Hanuman Ram was found hanging in the army quarter. At

about 03.15 AM, son of the deceased approached Shri Harendra

Kumar Rai on Guard Duty and told him that his father had hanged

himself at the quarter. Harendra Kumar Rai immediately informed

the Guard Commander Anil Kumar Rai who instructed him to

proceed to the place of incident saying that he was also following.

The Guard Harendra Kumar Rai accompanied the boy and reached

the quarter where a man was seen hanging from the ceiling fan

with a loop of bed-sheet. His feet were touching the ground. The

guard checked the pulse and breath but received no response

upon which, he came out of the quarter. In the meantime, the

Guard Commander Anil Kumar Rai also reached the spot. Both

went inside the quarter and saw that the bed-sheet had been cut

down. The man's wife was standing nearby and was trying to rub

his chest. The Guard Commander also checked the man for signs

of life but he too did not feel anything. Hanuman Ram's relatives

(3 of 23) [CRLA-1041/2015]

were informed. Shri Padma Ram, brother of the deceased

Hanuman Ram. He reached the Military Hospital where he was told

that his brother had committed suicide. He filed a report (Ex.P/1)

to the SHO, Police Station Mahamandir stating therein that his

brother Hanuman Ram Choudhary was on leave and had come to

Jodhpur. He was staying in the quarter No.252/8, Lancer Line

Army Area, Jodhpur. He committed suicide inside his quarter in

the night of 25.08.2013.

4. On the basis of the report submitted by Padma Ram to the

SHO Police Station Mahamandir, inquest report No.20/2013 was

registered under Section 174 Cr.P.C.. The dead body of Hanuman

Ram was subjected to postmortem through a Medical Board

constituted at the MGH, Jodhpur which issued postmortem report

(Ex.P/8) opining that the cause of death of Shri Hanuman Ram

was hanging. Observations made by the Board regarding the

ligature mark are noted herein below for the sake of future

references:

"Ligature mark- Present on neck between chin and thyroid

cartilage of size 34x3 cms. Light coloured running upward

obliquely placed behind ears. A gap of 4 cms. (knot) present

on the right side of neck, 4.5 cms. away from the right ear.

On dissection, the underlying skin is pale and

surrounding tissues are parchment like appearance."

Visceras were preserved for being tested through the

Forensic Sciences Laboratory.

(Emphasis Supplied).

(4 of 23) [CRLA-1041/2015]

5. Five days later i.e. on 30.08.2013, Shri Padma Ram (PW-1)

submitted another report (Ex.P/2) to the SHO Police Station

Mahamandir alleging inter alia that his brother had, as a matter of

fact, been murdered. He was forced to sign the report (Ex.P/1).

The dead body of Hanuman Ram was handed over to him and he

alongwith the two minor children of Hanuman Ram namely Mst. 'P'

and Master 'R' proceeded to the Village Kukunda for performing

the last rites and rituals. Hanuman Ram's wife Ladu Devi faked

illness and got admitted in the Army Hospital on a false pretext

and did not participate in the last rites of her husband. The two

children told the informant that On 25.08.2013, their parents had

gone to their room for sleeping in the night and were quarreling

with each other. At about 3 O' Clock, Ladu Devi cried out loudly on

which, both the children went towards the room of their parents

which was bolted from inside. On insistence of the children, Ladu

Devi opened the door and the children saw their father hanging

from the ceiling fan with the aid of a bed-sheet. His knees were

touching the ground. The children called the Guard who instructed

that the body should be removed only after the arrival of the

Military Police. However, Ladu Devi cut down the body and tried to

destroy the evidence. When the Military Police reached there, Ladu

Devi told them that Hanuman Ram had committed suicide.

It was further alleged that Hanuman Ram was working on

the post of Nayak in the Army and was posted at Pooh, Himachal

Pradesh. He had come to Jodhpur on 15.08.2013 for giving

statement in a criminal case registered against Manaram.

Hanuman Ram went to the Court on 21.08.2013 where, Manaram

threatened him to change the statement on which, Hanuman Ram

lodged a report at the Police Station Udaimandir. The children told

(5 of 23) [CRLA-1041/2015]

him that they had started living in the Army Quarters, Jodhpur

from 01.08.2013. Manaram would often scale the wall of the

quarter and come inside the quarter. He and Ladu Devi would

consume liquor and sleep together.

6. On 24.08.2013, Ladu Devi joined company of Manaram and

called Hanuman Ram. The children also told him that Manaram

and Ladu Devi used to save their conversation in the memory card

of a phone which was destroyed. Ladu Devi and Manaram were

indulged in an extra-marital affair and she would fritter away the

money of Hanuman Ram after he proceeded to his posting place.

The army personnel had written a letter to the District Collector on

10.06.2012 with a request to take action against Manaram and

Ladu Devi who had eloped together. She filed a false case of

domestic violence against Hanuman Ram and other family

members in an attempt to extort money. Later on, Ladu Devi had

filed a case of rape against Manaram. Looking to the future of the

children, Hanuman Ram got his children admitted into the Army

School at Jaipur where, they were living with Ladu Devi. In

August, 2012, Manaram got released on bail and went to Jaipur.

There, he and Ladu Devi sold all the ornaments and valuables of

Shri Hanuman Ram and splurged the money. Ladu Devi again

eloped with Manaram and started living a wayward life of

debauchery. She filed false cases against her husband. Ladu Devi's

maternal family members took her to their house. She also filed a

case of rape against Manaram at Jaipur. Feeling that Ladu Devi

could not change her statement in rape case as long as Hanuman

Ram was alive, she and Manaram conspired with each other and

(6 of 23) [CRLA-1041/2015]

killed Hanuman Ram on the night intervening 24/25.08.2013.

Ladu Devi tried to give the murder a shape of suicide.

7. On the basis of this report, FIR No.453/2013 (Ex.P/17) came

to be registered at the Police Station Mahamandir for the offence

punishable under Section 302 IPC and investigation was

commenced. It is relevant to mention here that in this highly

belated report which Shri Padma Ram filed after having consulted

the two children of the deceased, there is a total omission of any

kind of allegation that Manaram had come to the quarter of the

deceased on the night of the incident.

Be that as it may. The accused appellant and Smt. Ladu Devi

were arrested and after concluding investigation, a charge-sheet

came to be filed against them in the court concerned on

27.11.2013. The case was committed to the Court of the Sessions

Judge, Jodhpur Metropolitan from where, it was transferred to the

court of the Additional Sessions Judge, No.2, Jodhpur Metropolitan

for trial. The trial court framed charge against the accused

appellant and the co-accused Ladu Devi for the offence punishable

under Section 302 IPC. They pleaded not guilty and claimed trial.

The prosecution examined 18 witnesses and exhibited 24

documents to prove its case. Upon being questioned under Section

313 Cr.P.C., the accused denied the prosecution allegations and

claimed to have been falsely implicated. Manaram took a specific

plea that numerous cases were going on between him and the

complainant party relating to properties in the village and thus, he

had been falsely implicated in this case. The accused Ladu Devi

took a specific plea that a totally false case of murder had been

registered whereas her husband had committed suicide by

(7 of 23) [CRLA-1041/2015]

hanging himself. The informant Padma Ram conspired with the

police officials and got registered a false case against her. The

children were pressurised and tutored to give false statements

against her. She had filed a case of domestic violence against her

husband and other family members who implicated her falsely in

this case so that she could be deprived of her lawful share in the

family property and also because the relatives of Hanuman Ram

wanted to usurp his pensionary benefits. No evidence was led in

defence.

After hearing the arguments advanced by the defence

counsel and the learned Public Prosecutor and appreciating the

evidence available on record, the learned trial court proceeded to

convict and sentence the appellant and the co-convict Ladu Devi

for the offence punishable under Section 302 IPC and sentenced

both of them to Life Imprisonment and fine. Appellant Manaram

has filed Appeal No.1041/2015 whereas, Ladu Devi preferred D.B.

Criminal Appeal No.949/2015 for challenging the impugned

judgment. She was granted bail by this Court. However she

expired on 29.04.2021 on which, the appeal preferred by her

stands abated vide order dated 19.05.2022.

8. Shri Vinod Kumar Sharma, learned counsel representing the

appellant, advanced the following arguments for assailing the

impugned Judgment and craving acquittal for the appellant:-

(i) that there is no allegation whatsoever in the first report

(Ex.P/1) lodged on 25.08.2013, regarding any foul play in the

death of Shri Hanuman Ram.

(8 of 23) [CRLA-1041/2015]

(ii) that the written report (Ex.P/2) came to be filed after gross

delay of five days i.e. on 30.08.2013 for which no plausible

explanation is forthcoming. The report (Ex.P/2) was filed by

Padma Ram after having consulted the star prosecution witnesses

Mst. 'P' and Master 'R' and significantly enough, even in this highly

belated report, there is no allegation whatsoever that the

appellant came to the house of the deceased on the fateful night

or that he was in any manner directly responsible for the alleged

murder of Hanuman Ram.

(iii) that as per the evidence of the Security Guard Harendra

Kumar Rai (PW-11) and Hawaldar Anil Kumar Rai (PW-12), the

Lancer Line Campus where the Quarter No.252/8 was located, was

encumbered by a boundary wall and no outsider entered the

campus or the quarter on the fateful night. Thus, Shri Sharma

urged that the highly belated attempt of the prosecution to

portray the appellant as being the murderer is absolutely flimsy

and farfetched.

(iv) that the evidence of the child witnesses Mst. 'P' (PW-4) and

Master 'R' (PW-5) is highly contradictory. Mst. 'P' stated in her

examination-in-chief that Manaram came to their house and went

into the room of her father and soon thereafter, she saw her

mother and Manaram hanging her father. However, the child was

confronted with the police statement (Ex.D/2) wherein, there is

total omission of the fact that Manaram came inside their house

on the night of the incident. Shri Sharma also drew the Court's

attention to the statement of the other child witness Master 'R'

who alleged that he and his sister were sleeping on the fateful

(9 of 23) [CRLA-1041/2015]

night i.e. 24.08.2013. Manaram came to their house at about

12.00-12.30 AM. He did not think much of Manaram's visit

because it was a routine happening and went back to sleep. At

about 3 O' Clock in the night, his mother shouted on which, they

went towards the room and pushed the door on which, they saw

their father hanging with a bed-sheet. However, the boy did not

allege that Manaram was present in the room. He further

submitted that both the children were living with their

grandparents after the incident. They admitted that their

grandparents had a grave discord with their mother. Thus, as per

Shri Sharma, both the children were instigated and tutored to give

false evidence against the appellant herein. Shri Sharma urged

that the statement of Master 'R' is totally concocted and is

contradicted by the version as stated by Mst. 'P' (PW-4) and

hence, the evidence of both these witnesses deserve to be

discarded.

(v) that the evidence of Dr. Kamlesh Purohit, the Medical Jurist

(PW-6), Member of the Medical Board which carried out the

postmortem on the dead body of Hanuman Ram, establishes

beyond all manner of doubt that cause of death of Hanuman Ram

was ante-mortem hanging. The Board noted that there was no

mark of injury on the dead body. There were no signs of

mechanical force being applied on the neck of the deceased. Shri

Sharma urged that finding recorded by the trial court in the

impugned judgment that the percentage of Ethyl Alcohol (92.92

mg. per 100 ml.) in the blood of the deceased, gave rise to an

irrefutable inference that he would not be in a position to hang

himself, is based on conjectures and surmises. He submitted that

(10 of 23) [CRLA-1041/2015]

the prosecution did not give any suggestion to the Medical Jurist

that looking to the percentage of liquor in the blood of the

deceased, it would not be possible for him to hang himself. He

drew the Court's attention to the cross-examination conducted

from the doctor wherein, he admitted that it was wrong to suggest

that the percentage of alcohol found in the blood of the victim was

sufficient to intoxicate him. The doctor, rather stated that with this

quantity of alcohol, the person could at best be in a state of

euphoria. He thus urged that as the prosecution has given no

suggestion to the doctor regarding the death of Hanuman Ram

being homicidal, the inference drawn by the trial court that

Hanuman Ram was strangulated and killed, is absolutely baseless.

On these submissions, Shri Sharma implored the Court to

accept the appeal, set aside the impugned judgment and acquit

the accused appellant from the offence under Section 302 IPC.

9. Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by Shri Sharma

and urged that the two children of the Hanuman Ram and Ladu

Devi have given categoric evidence that the appellant herein came

to their house on the night of the incident and that he and their

mother Ladu Devi were responsible for the murder of their father.

The learned Public Prosecutor further submitted that the

conclusion given by the Medical Board in the postmortem report

(Ex.P/8) that cause of death of Hanuman Ram was hanging would

not ipso facto, dissuade the prosecution from independently

proving that the Shri Hanuman Ram was murdered. He urged that

the evidence of the eye-witnesses, coupled with the circumstance

that co-accused Ladu Devi and appellant herein were involved in a

(11 of 23) [CRLA-1041/2015]

long standing extra-marital affair, gives rise to a clear inference

that Hanuman Ram was first made to consume excessive liquor

and then he was forcibly strung from the ceiling fan so as to give

the incident an appearance of suicidal hanging. He contended that

the finding recorded by the trial court that as 92.92 mg. per 100

ml. of Ethyl Alcohol was found in the blood of the deceased, he

would not be in a position to hang himself, is absolutely justified

as the same is based on forensic opinion. He also submitted that

the evidence of the Guard Harendra Kumar Rai (PW-11) and the

Hawaldar Anil Kumar Rai (PW-12) cannot impeach the evidence of

the child witnesses who have given convincing evidence against

their own mother and the appellant and that their testimony

deserves to be given credence as compared to the testimony of

the Guard Harendra Kumar Rai (PW-11) and the Hawaldar Anil

Kumar Rai (PW-12). On these grounds, learned Public Prosecutor

implored the Court to dismiss the appeal and affirm the impugned

judgment.

10. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned Judgment and, have minutely shifted through the

evidence available on record.

11. The evidence, which needs to be discussed at the forefront,

is the medical evidence led by the prosecution to prove the cause

of death of Shri Hanuman Ram. Dr. Kamlesh Purohit (PW-6) being

a Member of the Medical Board which carried out autopsy upon

the dead body of Shri Hanuman Ram, stated on oath that the

ligature mark noticed on the neck of the deceased was, upon

(12 of 23) [CRLA-1041/2015]

opening, pale coloured and the tissues were parchment like.

Cause of death of the deceased was hanging as per the opinion of

the Medical Board. The deceased had consumed Ethyl Alcohol

before his death. There was a possibility of hanging even if the

feet of the deceased were touching the ground and the knees

were bent. The doctor denied the suggestion that the quantity of

Ethyl Alcohol found in the Viscera Report (Ex.P/9) i.e. 92.92 mg.

per 100 mg would be sufficient to intoxicate the deceased. The

doctor opined that this percentage of alcohol could lead to

euphoria. The dictionary meaning of Euphoria is; "a feeling or

state of intense excitement and happiness".

The doctor admitted that if a person was killed by different

means and then hanged, the findings of the ligature mark would

be different. In this regard, it would be fruitful to refer to the

celebrated text 'Modi's Medical Jurisprudence & Toxicology'

wherein, the renowned author made a comparative analysis of the

postmortem findings in cases of homicidal strangulation and

suicidal hanging:

               Hanging                                     Strangulation
1. Mostly suicidal.                         1. Mostly homicidal.
2. Face- Usually pale and petechiae         2. Face- Congested, livid and marked
   rare.                                       with petechiae.
3. Saliva-Dribbling out of the mouth        3. Saliva-No such dribbling
   down on the chin and chest
4. Neck-Stretched and elongated in          4. Neck-Not so.
   fresh bodies.
5. External signs of asphyxia, usually      5. External signs of asphyxia, very
   not well marked.                            well marked (minimal if death
                                               due to vasovagal and carotid
                                               sinus effect.

6. Bleeding from the nose, mouth and 6. Bleeding from the nose, mouth and ears very rare. ears may be found

7. Ligature mark-Oblique, non- 7. Ligature mark- Horizontal or continuous placed high up in transverse continuous, round the the neck between the chin and neck, low down in the neck below the larynx, the base of groove the thyroid, the base of the groove or furrow being hard, yellow or furrow being soft and reddish. and parchment-like.

(13 of 23) [CRLA-1041/2015]

8. Abrasions and ecchymoses round 8. Abrasions and ecchymoses round about the edges of the ligature about the edges of the ligature mark, rare. mark, common.

9. Subcutaneous tissues under the 9. Subcutaneous tissues under the mark- White, hard and glistening. mark- Ecchymosed.

10. Injury to the muscles of the neck- 10. Injury to the muscles of the neck-

   Rare.                                  Common.
11. Carotid arteries, internal coats 11. Carotid arteries,              internal   coat

ruptured in violent cases of a long ordinarily ruptured. drop.

12. Fracture of the larynx and 12. Fracture of the larynx and trachea- Very rare and that too in trachea- Often found also hyoid judicial hanging. bone.

13. Fracture-dislocation of the cervical 13. Fracture-dislocation of the cervical vertebrae- Common in judicial vertebrae-Rare. hanging.

14. Scratches, abrasions and bruises 14. Scratches, abrasions and bruises on the face, neck and other parts on the face, neck and other parts of the body- Usually not present. of the body- Usually present.

15. No evidence of sexual assault. 15. Sometimes evidence of sexual assault.

16. Emphysematous bullae on the 16. Emphysematous bullae on the surface of the lungs- Not present. surface of the lungs- May be present.

Manifestly, on analysing the findings of the Board regarding

the ligature mark with reference to the opinion of the expert

author on forensic medicine, there is no doubt in the mind of the

Court that death of Shri Hanuman Ram was unquestionably

caused by suicidal hanging and there is no possibility of his death

being homicidal.

12. Now, we proceed to appreciate the evidence of the material

prosecution witnesses; PW-1 Padma Ram (brother of the

deceased), PW-4 Mst. 'P' (daughter of the deceased), PW-5 Master

'R' (son of the deceased), PW-11 Harendra Kumar Rai (the Guard)

and PW-12 Anil Kumar Rai (Hawaldar).

13. PW-1 Padma Ram made inflated allegations of illicit relations

between the accused Ladu Devi (since deceased) and the

(14 of 23) [CRLA-1041/2015]

appellant herein. He also alleged that Ladu Devi had filed a case of

rape against Manaram and a case of domestic violence against her

husband Hanuman Ram (the deceased) and other family

members.

The witness further alleged that initially, after the death of

Hanuman Ram, he was mislead into signing the report (Ex.P/1).

However, this allegation is totally cooked up because there was no

one at the police station who could mislead or compel Shri Padma

Ram to lodge a report with incorrect facts. The witness stated that

after the report was filed and the dead body was handed over for

last rites, he and the children of the deceased went to the village

where the dead body was cremated. He got busy in the social

rituals. The children then divulged that on the fateful day, Ladu

Devi was in the company of Manaram who threatened Hanuman

Ram with dire consequences on phone. Ladu Devi returned home

at about 5 O' Clock in the evening of 24.08.2013. She and

Hanuman Ram quarreled with each other. Then, all the family

members went to sleep. The children woke up in the night at

about 12.30 AM and saw Manaram in their house. However, they

thought that this was a routine event and thus, they went back to

sleep. In the morning at about 3 O' Clock, Ladu Devi shouted on

which, the children went to the room and saw their father hanging

from the ceiling fan. The Guard was called who instructed that the

body should not be disturbed. However, Ladu Devi cut the bed-

sheet and brought down the body.

The witness admitted that he submitted the report (Ex.P/1)

at the Police Station Mahamandir and also signed the inquest

documents viz. Fard Surathaal Lash (Ex.P/3), Panchnama Lash

(Ex.P/4) and Fard Supurdgi Lash (Ex.P/5). He also alleged that

(15 of 23) [CRLA-1041/2015]

Manaram and Ladu Devi were indulged in an extra-marital affair

from three years before the incident and a case in this regard was

registered against Manaram at the Police Station Dangiyawas.

Another case was registered against Manaram at the Police Station

Jhotwara, Jaipur. His brother Hanuman Ram had come to Jodhpur

for giving evidence in connection with Dangiawas case. Manaram

threatened him with dire consequences on which, a complaint was

lodged against him at the Police Station Udaimandir. However, it

may be stated here that not a single document pertaining to any

of these cases was presented by the prosecution during the course

of investigation or trial. The witness proved the written report

(Ex.P/2) on the basis whereof, the FIR came to be registered.

In cross-examination, the witness was extensively

confronted with the omissions and contradictions vis-a-vis the two

reports and his previous police statement. He admitted that the

children Master 'R' and Mst. 'P' told him about the incident with

Hanuman Ram on 26.08.2013. Both the children stayed with their

grandparents in the village after the death of Hanuman Ram. The

children had shared all details of the incident on 26.08.2013 but

he did not lodge the report immediately thereafter because he was

busy in the customary rituals. He admitted that his mother had

filed a case against Hanuman Ram's wife Ladu Devi (the co-

accused). For the sake of repetition, it may be mentioned here

that in the written report (Ex.P/2), the witness did not mention

that the children told him that they had seen Manaram entering

their house in the night. The relevant part of the written report

(Ex.P/2) is reproduced herein below for the sake of ready

reference:

                                         (16 of 23)                [CRLA-1041/2015]


      "...    nksuksa cPpksa us eq>s crk;k fd jkf= dks eEeh ikik ,d dejs esa

lksus ds fy;s x;s Fks vkSj vkil esa >xM+ Hkh jgs FksA fnukWd 25-08- 2013 dks lqcg (jkf+= tSlk) 3 cts eEeh yknwnsoh tksj tksj ls vkokts nh rc nksuksa cPps eEeh ikik ds dejs ds ikl x;s Fks eEeh us dejk vanj ls can dj j[kk Fkk cPpksa ds dgus ij yknwnsoh us vanj ls dejk [kksyk rc cPpks dks fn[kk;k fd cSM'khV ls Qkalh dj ia[ks ls yVdk;k gqvk Fkk] cPpksa us crk;k fd ikik ds ?kqVus tehu rd gq, Fks iSj eqM+s gq, Fks fQj cPpksa us xkMZ vady dks cqyk;kA...." At the concluding part of the report, the witness alleged that

Manaram and Ladu Devi conspired with each other and as a

consequence, Hanuman Ram was killed and Ladu Devi tried to

give the incident a shape of suicide. The significant omission in

this report regarding the factum of the appellant having come to

the house of Hanuman Ram on the fateful night, goes to the root

of the matter and completely discredits the prosecution case.

It may be reiterated that the FIR came to be lodged after 5

days of the incident whereas the complainant admitted that the

children had given him the complete details of the incident as seen

by them, on 26.08.2013 itself. Thus, without prejudice to the fact

that the FIR is highly belated, if at all the children had seen

Manaram entering their house on the fateful night then, this fact

was bound to be incorporated in the written report (Ex.P/2). This

omission completely destroys the substratum of the prosecution

case regarding involvement of Manaram in the incident.

14. PW-4 Mst. 'P' (daughter of the deceased Hanuman Ram and

the co-accused Ladu Devi) made the following statement

regarding the incident:

"...mlds ckn 11 cts ds vkl ikl ge lc lks x;sA exj eq>s uhan ughas vkbZA blds ckn esa djhc ,d ?k.Vs ds ckn esa eSus ns[kk eEeh gekjs :e esa vkbZ vkSj :e dh ykbZV pkyw dhA vkSj ?kj dk Main

(17 of 23) [CRLA-1041/2015]

Gate [kksykA rc ekukjke vk;k Fkk vkSj oks vanj ikik ds :e esa pyk x;kA exj ,d ?k.Vs rd tc ekukjke okil ckgj ugha vk;k rks esa eEeh ikik ds :e ds lkeus xbZ o eSus ns[kk fd eEeh o ekukjke ikik dks Qkalh ij yVdk jgs Fks ysfdu ;s ns[kdj eS Mj xbZ vkSj vius :e esa vkdj lks xbZA djhc vk/ks ?k.Vs ds ckn esa ekukjke okil pyk x;kA rhu cts eEeh us ge nksuksa dks vkokt yxkbZ] rc ge yksx ikik ds :e es x;sA geus ns[kk fd dejs dh Light pkyw Fkh vkSj ikik dks Qkalh ds Qans ij yVdk j[kk FkkA...."

In cross-examination, the witness was confronted with her

police statement (Ex.D/2). She admitted having given such

statement to the police. It may be mentioned here that in this

statement, it is not mentioned that Mst. 'P' saw Manaram coming

into the house on the fateful night. At caption portion A to B of the

statement, she stated that at about 3 O' Clock in the morning, her

mother called out to wake her and her brother on which, they

went to the room of their parents and saw their father hanging

with a bed-sheet. She also stated that her brother told her that in

the night at about 12.00-12.30 AM, he had seen Manaram

entering their house. Manifestly, when the girl was examined by

the police, she did not allege that she had seen Manaram entering

their house and thus, the fact as stated by her in the sworn

testimony is a sheer improvement which deserves to be discarded.

15. PW-5 Master R', being the son of Shri Hanuman Ram and the

co-accused Ladu Devi, stated that Manaram came to their house

on the night of 24.08.2013 at about 12.00-12.30 AM. He saw

Manaram and went back to sleep. At about 3 O' Clock, his mother

shouted and called them out. They went to the room and saw

their father hanging with a bed sheet. In cross-examination, the

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witness admitted that he was sleeping in his room at the time of

the incident. The police recorded his statement (Ex.D/3) wherein,

he did not state that he woke up because of the noise of the door

when Manaram entered their house. He admitted that his uncle

had come to the court with him. In further cross-examination, the

witness admitted that there were two gates for entering into the

Military Quarter Colony. CMP guards were posted on both the

gates. He was present in the hospital when the police came after

the death of his father. No one asked him as to how his father had

died and thus, he did not tell the police anything in this regard. He

was at the Military Hospital after the incident and from there, he

called his uncle Padma Ram on phone and told him of the fate

which had befallen his father. He denied the suggestion that he

had told his uncle that his father had committed suicide.

Looking to the gross delay of 5 days in the lodging of the

report (Ex.P/2) and the grave contradictions inter se in the

statements of PW-1 Padma Ram, PW-4 Mst. 'P' and PW-5 Master

'R', it is manifest that the children were tutored to give evidence

so as to implicate their mother and the appellant in this case. The

theory put-forth in the statements of the two children (supra) that

the accused appellant came into their house in the night at about

12.00-12.30 AM, is a sheer exaggeration and is falsified when we

consider the statements of the Guard Harendra Kumar Rai (PW-

11) and the Hawaldar Anil Kumar Rai (PW-12).

16. Shri Harendra Kumar Rai stated on oath that he was on

guard duty from 08.00-10.00 in the night and 02.00-04.00 in the

morning. On the fateful night, at about 03.15 AM, when he was

on the duty, a boy approached him from the direction of the

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Family Quarters and told him that his father had hanged himself in

the quarter.

In cross-examination, the witness admitted that the Lancer

Line Residential Colony is surrounded by a permanent boundary

wall. He was present on the guard duty from about 12 O' Clock in

the night. He did not see anyone entering the house where the

incident took place.

17. PW-12 Anil Kumar Rai stated that on 24.08.2013, he was

continuously on night duty as Guard Commander. A permanent

boundary wall surrounds the colony. He did not hear any

commotion from the house where the incident took place. He did

not see anyone going towards the Quarter No.252/8 on the fateful

night.

Apparently, as the residential colony is of the Armed Forces

and as the same is encompassed by a boundary wall with round

the clock guards being posted on the two gates, unnoticed entry

of a private individual into the colony in the night time, was

absolutely impossible.

18. After critical analysis of the evidence of the witnesses as

discussed above, the scenario boils down to the following

conclusions:

(i) that the report (Ex.P/1) lodged by Padma Ram at the Police

Station Mahamandir on 25.08.2013 at about 08.40 AM, wherein,

he alleged that his brother had ended his life by hanging, gives

out the correct version of the incident. The child witness Master 'R'

admitted in his statement that he called his uncle from the Military

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Hospital and told him as to what had happened to his father. In

this background, it can be presumed that the true information of

the incident must have been conversed by the boy to Shri Padma

Ram who incorporated the same in the report (Ex.P/1);

(ii) the boy Mater 'R' (PW-5) approached the Guard Harendra

Kumar Rai (PW-11) at 03.15 AM and gave him an information that

his father had hanged himself. If at all there was any truth in the

flimsy prosecution theory, there was no reason as to why the boy

would not disclose to the Guard that his father had been

murdered.

(iii) the Military Police arrived at the quarter and the children were

free to divulge the true sets of facts as known to them but they

did not make any attempt to disclose that their father had been

murdered.

(iv) that the first informant, Padma Ram (PW-1) lodged the highly

belated written report (Ex.P/2) dated 30.08.2013 after admittedly

having received complete details of the incident from the two

children who were living with their grandparents after the death of

Shri Hanuman Ram. However, even in this report, there is no

allegation that Manaram had come to the house of the deceased

on the fateful night and was responsible for his death. Thus,

glaring omission makes the evidence of Padma Ram (PW-1), Mst.

'P' (PW-4) and Master 'R' (PW-5) completely unworthy of

credence.

Reference in this regard may be had to the Supreme Court

Judgment in the case of Ram Kumar Pandey vs. The State of

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Madhya Pradesh reported in AIR 1975 SC 1026 wherein it was

observed:

"8. The above mentioned First Information Report was lodged at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only as persons who saw the wrapping of the chadar on the wound of Harbinder Singh, What is most significant is that it is nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh.

9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.

10. Even Joginder Singh, PW 8, was not an eye witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door, and held his hand on his chest with blood flowing down from it. He deposed that, when he asked Pappi what had happened, Pappi had stated that Suresh and Pandey had injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made. Uttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh, was made by Harbinder Singh. The omission to mention any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of this case. Indeed, according to the version in the F.I.R., Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was correct, the two injuries on

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Harbinder Singh must also have been inflicted in the lane outside.

(Emphasis supplied)"

(v) that the evidence of the Military Guard Harendra Kumar Rai

(PW-11) and Hawaldar Anil Kumar Rai (PW-12) clearly establishes

that the Army Colony, where the deceased Hanuman Ram was

living with his family, was encompassed by a permanent boundary

wall and guards were deployed round the clock on the two entry

gates. Thus, there was no possibility of any private person having

entered the colony during the night time without alarming the

guards.

(vi) Evidence of the Medical Jurist Dr. Kamlesh Purohit (PW-6) and

the findings of the postmortem report (Ex.P/8) regarding the

ligature mark demolishes the prosecution theory regarding Shri

Hanuman Ram having been murdered. The doctor gave categoric

testimony stating that the cause of death of Shri Hanuman Ram

was hanging. The doctor also affirmed that the percentage of Ethyl

Alcohol found in his blood would result in Euphoria which means

an excitable state. Thus, in all probability, Shri Hanuman Ram

seems to have committed suicide acting under the influence of

liquor. The finding recorded by the learned trial court in the

impugned Judgment that the deceased was made to consume

liquor and was then forcibly hanged, is totally conjectural and

unsustainable on the face of the record. The charge of murder

held proved by the trial court against the accused cannot be

sustained in light of the categoric expert evidence of Dr. Kamlesh

Purohit (PW-6).

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Findings recorded in the impugned Judgment are perverse

and based sheerly on conjectures and surmises. The Presiding

Officer seems to have taken a flight of fancy while recording guilt

of the accused as above.

19. As an upshot of the above discussion, the appeal deserves to

be accepted. The impugned Judgment dated 11.09.2015 passed

by the learned Additional Sessions Judge No.2, Jodhpur

Metropolitan in Sessions Case No.19/2015, is hereby quashed and

set aside. The appellant is acquitted of the charge. He is in

custody. He shall be released from prison forthwith if not wanted

in any other case.

The appeal is allowed in the above terms.

20. However, keeping in view the provisions of Section 437-A

Cr.P.C., the 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.

21. Record be returned to the trial court forthwith.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

Tikam/Devesh/-

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