Narayan vs State
2022 Latest Caselaw 13939 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 529/2014

Narayan S/o Bhoorji, by caste Khant Adiwasi, Aged 25 years, R/o
Mahudiapada Padedi, P.S. Gaddi, District Banswara.
(At present lodged in Central Jail, Udaipur).
                                                                  ----Appellant
                                   Versus
The State of Rajasthan.
                                                                ----Respondent


For Appellant(s)         :     Mr. Shree Kant Verma.
For Respondent(s)        :     Mr. B.R. Bishnoi, PP.



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

                             JUDGMENT

DATE OF JUDGMENT:              28/11/2022


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

1. The appellant herein has been convicted and sentenced as

below vide Judgment dated 19.06.2014 passed by the learned

Additional Sessions Judge, Banswara in Sessions Case

No.194/2011:

Offences           Sentences                     Fine            Fine   Default
                                                                 sentences
Section 302 IPC Life Imprisonment                Rs.10,000/- 2 Months' S.I.

Section 201 IPC Section 5 Years' R.I. Rs.2,000/-                 1 Month's S.I.

All the substantive sentences were ordered to run concurrently.

                                        (2 of 10)               [CRLA-529/2014]



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 appellant and the deceased Smt. Nirma were married to

each other about 5-6 years before the incident. Two children were

born from the wedlock. The deceased had been complaining to her

maternal relatives regarding strife with her husband, the appellant

herein. An information was received by Keshav Lal on 09.03.2011

that his sister Nirma had been murdered. The family members

reached the village of the accused where they saw the dead body

of Nirma lying in the field. A Saree was tied around her neck in

form of a noose. Grave injuries had been caused on her face and

her teeth were dislodged. Numerous other marks of violence were

noticeable on the dead body. From the field, they proceeded to the

house of Nirma but no one was seen in and around the house.

Clumps of hair, broken bangles and blood stains were seen all

around the house, on the floor as well as on the walls. Police was

informed. Keshav Lal submitted a written report (Ex.P/1) to the

Police Station Garhi, District Banswara alleging that his sister had

been murdered by Narayan and his relatives namely Bhoorji

(father), Hui (mother), Nanu (brother), Laxmi (sister), Mani and

Rama.

4. On the basis of this report, FIR No.58/2011 (Ex.P/34) came

to be registered at the Police Station Garhi, District Banswara for

(3 of 10) [CRLA-529/2014]

the offences punishable under Sections 143 and 302/149 IPC and

investigation was commenced. The investigating officer inspected

the place where the dead body of Smt. Nirma was lying. The blood

stained soil, control soil, etc. were collected from the place of

incident. The dead body of Nirma was subjected to autopsy at the

PHC, Garhi and the postmortem report (Ex.P/28) was procured as

per which, the trachea of the victim was injured and was filled

with blood. A severe injury was noticed on the upper lip and

mouth. 3 to 5 teeth had been dislodged. The cause of death was

opined to be syncope and shock as a result of haemorrhage from

the wound. The clothes of the victim were seized. The house

where the victim was resided with her husband was also inspected

and from there also, clumps of hair, blood stained soil and control

soil were lifted. The accused appellant was arrested on

13.03.2011 vide arrest memo (Ex.P/12) and the shirt worn by

him, which having blood stains, was seized vide seizure memo

dated 14.03.2011 (Ex.P/8). The incriminating material, referred to

supra, seized by the I.O. viz. clothes of the deceased, her hair,

blood stained soil and control soil collected from the house as well

as the field, the blood stained shirt of the accused, a blood stained

stone recovered in furtherance of the disclosure statement made

by the accused were all forwarded to the FSL for serological

examination. A report (Ex.P/33) dated 13.04.2011 was received

from the laboratory with a conclusion that the saree and blouse of

the deceased, the blood smeared soil collected from the field, the

blood stained soil collected from the house and the shirt recovered

from the person of accused all tested positive for presence of 'B'

Group blood. Charge-sheet was filed against the accused appellant

for the offences punishable under Sections 302 and 201 IPC. As

(4 of 10) [CRLA-529/2014]

these offences were sessions triable, the case was committed to

the Court of Sessions Judge, Banswara from where, it was

transferred to the court of Additional Sessions Judge, Banswara for

trial. Charges were framed against the appellant for the offences

punishable under Sections 302 and 201 IPC. He pleaded not guilty

and claimed trial. The prosecution examined 9 witnesses and

exhibited 34 documents to prove its case. The accused, upon

being questioned under Section 313 Cr.P.C. and when confronted

with the circumstances appearing in the prosecution case, denied

the same, claimed to be innocent and stated that he was in

Gujarat at the time of the incident. When he returned, he came to

know about his wife's murder and went to the police station for

filing a report but he was immediately arrested and his report was

not accepted.

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 accused appellant as above. Hence this

appeal.

5. Mr. Shree Kant Verma, learned counsel representing the

appellant, vehemently and fervently contended that the entire

prosecution case is false and fabricated. The appellant had no

motive to murder his wife. The prosecution did not produce any

evidence whatsoever to show that the appellant was present in

the house at the time of the incident and thus, the trial court was

not justified in applying the reverse burden of proof by virtue of

Section 106 of the Indian Evidence Act against the appellant. Shri

Verma further submitted that the recoveries made at the instance

(5 of 10) [CRLA-529/2014]

of the appellant are fabricated. It cannot be believed that the

accused would continue to wear the blood stained shirt for a

period of four days from the incident. He placed reliance on the

Judgment in the case of Mange Ram vs. State of Rajasthan

(D.B. Criminal Appeal No.1048/2017) decided on

21.12.2018 in support of his contentions and urged that the

appellant is entitled to be acquitted of the charges. His alternative

submission was that as the appellant did not have any motive to

commit the offence, the charge deserves to be toned down from

the offence under Section 302 IPC to one under Section 304 Part I

or Part II IPC.

6. Learned Public Prosecutor, on the other hand, urged that the

appellant was unquestionably present in the house when the

incident took place. The plea regarding he having gone to Gujarat

was not put to the material prosecution witnesses in cross-

examination. The highly belated defence plea of alibi which the

accused raised in the statement under Section 313 Cr.P.C. would

have required to be established by leading plausible evidence.

However, other than a bald statement under Section 313 Cr.P.C.

that he was present in Gujarat at the time of incident, the

appellant did not lead any evidence whatsoever in support of this

flimsy plea of alibi. He urged that presence of 'B' Group Blood in

the soil collected from the house of the appellant and the

appellant's own shirt matching with the blood group of the

deceased, is a strong circumstance which conclusively points

towards his guilt. On these submissions, learned Public Prosecutor

submitted that the appellant's conviction as recorded by the trial

court is unassailable and thus, he sought dismissal of the appeal.

                                        (6 of 10)                [CRLA-529/2014]




7.   We   have   given      our     thoughtful         consideration   to   the

submissions advanced at bar and, have thoroughly appreciated

the evidence available on record.

8. From the evidence of the first informant Keshav Lal (PW-1)

brother of the deceased, it is established beyond all manner of

doubt that his sister Nirma was married to the appellant about 5

years ago. The witness stated that he received information

regarding his sister's murder on 09.03.2011. He and his family

members went to Nirma's matrimonial village where they saw her

dead body lying in the field with numerous marks of violence.

Thereafter, they proceeded to the house where the accused and

the deceased resided together and there, they saw blood stained

soil, blood stained hair, broken bangles, etc. Neither Narayan nor

his family members were present at the house at that time. It is

true that the witness did not allege in his examination-in-chief

that there was any strife between the husband and the wife but,

this question was put to him in cross-examination and the witness

affirmed this defence suggestion. Thus, from the statement of

Keshav Lal (PW-1), it is well and truly established that Nirma was

killed by means of violence. It is also clear that when the witness

reached the place of incident with his other family members, the

dead body of Smt. Nirma was lying abandoned in the field and

numerous marks of blood stains were visible in the house of the

accused. Neither the accused nor his other family members were

present when the witnesses reached there.

The witness Jalma (PW-2) and Kailash (PW-3) also gave

evidence similar to what was stated by Keshav Lal.

(7 of 10) [CRLA-529/2014]

The evidence of PW-5 Kalu Ram and PW-6 Kalpesh Joshi

(Photographer) is formal in nature.

Dr. Deepika (PW-7) conducted autopsy upon the dead body

of Smt. Nirma on 09.03.2011 and took note of the following

injuries.

"The mouth and the upper lips were totally crushed. Blood

had collected in the throat. The cause of death was opined to

be collection of blood in throat, syncope and shock as a

result of injuries caused to the victim which were

antemortem in nature and could have been caused by a

sharp stone."

PW-8 Tejkaran was the Carrier Constable who transmitted

the article packets of the case at hand from the Police Station

Garhi to the FSL, Udaipur. The witness gave cogent evidence

regarding the safe keeping of the sample packets.

PW-9 Bhojraj Singh, SHO, Police Station Garhi, conducted

investigation of the case. He collected the blood stained soil,

control soil, blood stained clothes from the place of incident. The

clothes of the victim were also seized. Blood stained soil, control

soil and hair lying in the house of the accused were also seized.

The accused was arrested and he gave a disclosure statement

(Ex.P/31) for pointing out the place of incident and for identifying

the stone which he had used for causing injuries to his wife. The

I.O. proceeded to recover the stone. He also seized the blood

stained shirt of the accused vide seizure memo (Ex.P/8). In cross-

examination, the witness admitted the defence suggestion that

the house in which Narayan lived, was in two sections. In one

part, Narayan lived with his wife and in the second part of the

(8 of 10) [CRLA-529/2014]

house, his parents resided with his brother. From the evidence of

this witness, it becomes clear that he conducted investigation in a

fair manner and collected the incriminating material as stated

above during the course of investigation. This witness was the first

of the prosecution witnesses to whom the defence gave a

suggestion that Narayn was not available at the place of incident

and had gone to Gujarat. The I.O. also gave evidence regarding

deposit of the incriminating articles in the Maalkhana and the

forwarding thereof to the FSL. The FSL report was proved as

Ex.P/33 which establishes that the saree, blouse, hair of the

deceased, blood smeared soil collected from the field, blood

smeared soil collected from the house of the accused and the shirt

of the accused, all gave positive test for presence of 'B' Group

Blood.

It may be stated here that other than a bald assertion made

by the accused in his statement under Section 313 Cr.P.C. that he

was present in Gujarat at the time of the incident, he did not offer

any explanation as to how his wife, the deceased Nirma was

caused the gruesome injuries leading to her death. It is true that

there is no eye witness of the incident but the fact remains that in

the natural course of events, there was no occasion whatsoever

for the accused to have absconded from his village after his wife

was found murdered. The presence of 'B' Group blood on the shirt

worn by the accused which is same as the blood group of the

deceased and the presence of 'B' Group blood in the soil recovered

from the house of the accused, is a gravely incriminating

circumstance which well and truly establishes that the accused

indulged in violence and caused injuries to his wife inside his

house.

(9 of 10) [CRLA-529/2014]

9. The defence of alibi was taken by the accused in his

statement under Section 313 Cr.P.C. at a highly belated stage and

was not proved by any plausible evidence. The defence claims that

the accused went to the police station for reporting his wife's

murder but this assertion was not supported by any documentary

or oral evidence. The circumstances in the case of Mange Ram

(supra) relied upon by learned counsel Shri Verma, are totally

distinguishable because in that case, the defence gave a pertinent

suggestion to the star prosecution witness, being the mother of

the deceased, who admitted that the accused was not present in

the house at the time of the incident. In the present case, no such

suggestion was given by the defence to the first informant Keshav

Lal (PW-1) brother of the deceased.

10. Upon an overall appreciation of the evidence available on

record, we are of the view that the prosecution has led convincing

and cogent circumstantial evidence to show that the victim Nirma

was murdered in the house where she resided with her husband

and the dead body was then shifted to the adjoining field and was

found in abundance. Presence of 'B' Group blood on the soil inside

the house and the shirt worn by the accused at the time of his

arrest, are gravely incriminating circumstances which establish a

complete live link connecting the accused with the murder of his

wife. For the sake of repetition, it may be mentioned here that the

bald and flimsy plea of alibi taken by the accused was neither

proved and nor the same is convincing.

(10 of 10) [CRLA-529/2014]

11. The appellant failed to explain the circumstances under

which his wife received the gruesome fatal injuries in their

residential premises. These facts were exclusively in the

knowledge of the accused.

As a consequence, we are of the firm view that the trial court

was perfectly justified in drawing adverse inference against the

accused by virtue of reverse burden of proof provided under

Section 106 of the Indian Evidence Act and convicting and

sentencing him as above. The impugned Judgment dated

19.06.2014 passed by the learned Additional Sessions Judge,

Banswara in Sessions Case No.194/2011 does not suffer from any

infirmity or illegality whatsoever warranting interference therein.

12. Hence the appeal fails and is hereby dismissed as being

devoid of merit.

13. Record be returned to the trial court.

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


                                    43-Tikam Daiya/-









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