Pramod Kumar vs State Of Rajasthan Through Pp
2023 Latest Caselaw 1021 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 428/2015

Pramod Kumar son of Shri Rameshwar Lal, aged 24 years,
resident of Bhadunda Khurd, Police Station Bagad, District
Jhunjhunu (Raj.) at present lodged in the Central Jail, Bikaner.
                                                                      ----Appellant
                                     Versus
State Of Rajasthan Through Pp
                                                                    ----Respondent

For Appellant(s)           :     Mr. Ashvin Garg
For Respondent(s)          :     Mr. Javed Choudhary, Addl.G.A.



         HON'BLE MR. JUSTICE PANKAJ BHANDARI
              HON'BLE MR. JUSTICE SAMEER JAIN

                                      Order

Per: Hon'ble Mr. Justice Sameer Jain
Reserved on                      02/01/2023
Pronounced on                    31/01/2023

1. The present criminal appeal has been filed under

Section 374(2) of Cr.P.C. against the judgment and order of

conviction dated 11.03.2015 passed by the Additional Sessions

Judge No. 2, Jhunjhunu in Sessions Case No. 01/2013 (152/2013)

whereby the appellant was convicted and sentenced for offence

under Section 302 of IPC to life imprisonment along with fine of

Rs. 5,000/- and in default thereof, to undergo additional simple

imprisonment of six months and under Section 498A of IPC to

undergo two years rigorous imprisonment along with fine of Rs.

200/- and in default thereof, to suffer additional simple

imprisonment for a period of two months.

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2. Succinctly stated, the case of the prosecution is as

follows:-

(i) That on 03.08.2012, Kanhaiya Lal, father of the deceased,

submitted Ex. P-1 Written Report at B.D.K Hospital, Jhunjhunu

interalia alleging that on 22.12.2010, his daughter-Poonam's

marriage was solemnized with the appellant. After marriage, the

appellant-husband started harassing the deceased-wife for dowry

and upon her inability to comply with the said demands, he

subjected her to physical assault. It was further alleged that the

appellant-husband even got the deceased-wife's pregnancy

terminated when she was five months pregnant.

(ii) That on 03.08.2012 at 7:30 AM, Shri Dhoop Chandra, elder

brother of the appellant, gave telephonic information to the

complainant that his daughter had died. Thereupon, the

complainant accompanied by his family members went to B.D.K

Hospital Jhunjhunu where they were informed that the deceased-

Poonam had committed suicide. However, considering the

background of the case, FIR No. 164/2012 was registered at Police

Station-Bagad for offence under section(s) 498A and 304B of IPC.

The above-mentioned FIR is marked as Ex. P-2.

(iii) During the course of investigation, 'panchnama' of the dead

body was prepared (Ex.P-3), post-mortem examination of the

deceased was conducted and the corresponding 'Post-Mortem

Report' was obtained (Ex.P-11), the site of the incident was

inspected and the corresponding site-plan was prepared (Ex. P-7).

Thereafter, on 05.08.2012, the appellant was arrested by the

concerned police authorities. The arrest memo is marked as Ex. P-

8. Upon conclusion of the investigation, the police submitted a

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charge-sheet against the appellant under section(s) 498A and 302

of IPC. Subsequently, the trial commenced at the Court of

Sessions.

(iv) That on 02.09.2013, charges for offence under section(s)

498A and 302 of IPC were read over and explained to the

appellant. Thereafter, whilst categorically denying the said

charges, the appellant prayed for a trial. The prosecution

examined as many as 14 witnesses along with 24 documents as

exhibits. Moreover, the explanation of the appellant was obtained

under Section 313 of Cr.P.C., wherein he indubitably stated that he

has been falsely implicated in the present matter and that the

evidence adduced by the prosecution is entirely fabricated and

untrue. The appellant further stated that the deceased-Poonam

committed suicide after her extra-marital affair was exposed by

one-Chandra Prabha. He also took the plea of alibi and submitted

that on 02.08.2012, he was not present in the house. Moreover,

he only returned upon getting information regarding his wife's

demise on 03.08.2012. In this background, it is pertinent to note

that 5 police statements were exhibited in the appellant's defense;

while no oral evidence was adduced to prove his innocence.

(v) That, after a prolonged trial, learned Sessions Judge vide

judgment dated 11.03.2015, held the petitioner guilty for offence

under section(s) 498A and 302 of IPC and sentenced him in the

manner stated herein-above.

3. In this background, learned counsel for the appellant

has submitted that the conviction of the appellant is against the

facts and circumstances of the case, the material and evidence

available on record and also the law applicable, hence the same is

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bad in law. Learned counsel submitted that the case of the

prosecution is entirely based on circumstantial evidence and the

prosecution has categorically failed to connect the chain of

circumstances, so as to warrant the conviction of the appellant.

He has submitted that initially the FIR was registered for offence

under section(s) 498A and 304B of IPC. However, upon

conclusion of the investigation, the said charge under section

304B of IPC was altered to Section 302. Moreover, the

aforementioned FIR was filed at a belated stage as well. It was

further argued that in the 'Written Report' (Ex. P-1) submitted by

the father of the deceased, no specific allegation of dowry

demand was levelled against the appellant. Learned counsel also

submitted that there are no eye-witnesses to corroborate the

allegation that the appellant had strangulated the neck of the

deceased. Furthermore, learned counsel apprised the court of the

fact that nothing incriminating the appellant of the alleged offence

has been recovered from his possession by the investigation

agencies. Moreover, there are several material contradictions in

the statements tendered by the prosecution witnesses. At the

same time, the prosecution has also failed to produce any

independent witnesses before the Court, who are not relatives of

the deceased-Poonam. Lastly, learned counsel for the appellant

submitted that the appellant was not present in the house when

the alleged incident had occurred. Rather, he only returned to the

house upon being informed of the demise of his wife on

03.08.2012. In this background, it was submitted that the

deceased-wife had committed suicide on account of the fact that

her extra-marital relationship had been discovered by her aunt,

(5 of 8) [CRLA-428/2015]

Chandra Prabha, who saw her with another man inside her room.

Therefore, there is a glaring gap in the chain of

circumstances/story of the prosecution and a fabricated and

concocted narrative has been presented before the Court to

falsely implicate the appellant for the alleged offence of murder.

Hence, the conviction of the appellant under section(s) 498A and

302 of IPC is wholly illegal and erroneous and deserves to

quashed and set aside.

4. Per contra, learned counsel for the respondent-State

has opposed the present appeal. He has submitted that the plea of

alibi taken by the appellant has no base as he has categorically

failed to adduce any evidence so as to establish his presence

elsewhere, on the said date of the incident. Furthermore, learned

counsel for the respondent-State has argued that the appellant

has extensively relied upon the account of a material witness,

Chandra Prabha, who had allegedly discovered the deceased-wife's

extra-marital affair prior to the commission of the alleged suicide;

however, learned counsel for the State has apprised the Court of

the fact that Ms. Chandra Prabha was never produced by the

appellant in his defense. Therefore, in this regard, an adverse

inference has to be drawn against the case of the appellant. It was

also submitted that upon a perusal of the injury report, several

marks of injury were reflected upon the appellant's person. Lastly,

learned counsel for the respondent-State submitted that the 'post-

mortem report' (Ex. P-11), prepared by the Medical Board, is not

suggestive of suicide. Therefore, it was argued that the appellant's

conviction is in consonance with the settled position of law, the

(6 of 8) [CRLA-428/2015]

evidence and materials available on record and the law applicable

and therefore, it does not call for any interference of this Court.

5. We have considered the arguments advanced by

learned counsel for both the sides and scanned the record of the

case.

6. Upon a perusal of the record, it is observed that the

author of the FIR was the father of the deceased, namely Mr.

Kanhaiya Lal, who submitted that his daughter was murdered by

the appellant within a short span of their marriage. In this regard,

it is an admitted fact that the marriage between the deceased and

the appellant was solemnized on 02.12.2010; while the date of

the occurrence of the incidence is 03.08.2012. Furthermore, it is

observed that the prosecution has relied upon the arrest memo of

the appellant marked as (Ex. P-8), wherein there is a reflection of

several injuries on the appellant's person. Moreover, the said

injuries are further reflected in the medical report dated

05.08.2012, wherein it has been categorically stated that there

were several bruises on both the sides of the appellant's neck.

Furthermore, the 'Post Mortem Report' (Ex.P-11) prepared by the

Medical Board suggests that the cause of death of the deceased-

Poonam was cardio-respiratory failure due to asphyxia caused by

throttling and not suicide. In simpler terms, the said finding of the

Medical Board implies that there was an external pressure upon

the neck of the deceased by a third party, which resulted in her

death. The 'Post Mortem Report' is further indicative of bruises

and abrasions on different parts of the deceased's body, including

bruises on the left arm along with the multiple abrasions on both

the sides of the neck as well. In this regard, it is observed that the

(7 of 8) [CRLA-428/2015]

learned trial court has rightly inferred that the injuries on the

appellant's person were incurred during the commission of the

said offence, while the deceased-Poonam was trying to defend

herself.

7. Furthermore, upon a perusal of the 'post mortem

report' (Ex.P-11) read with the 'Panchnama' of the dead body (Ex.

P-3), injury report of the appellant (Ex.P-9) and the S.F.S.L. report

(Ex.P-14), the presence of the appellant is established on the date

and site of the occurrence. In this regard, it is pertinent to note

that the plea of alibi, as taken by the appellant, has not been

supported by any evidence. Hence, it would be prudent to infer

that the same was given as an afterthought, in order to create a

defence and establish a theory of an alleged extra-marital offence

of the deceased-Poonam and to further conceal his involvement in

the commission of the said crime. At the same time, learned

counsel for the appellant has extensively relied upon the account

of one Chandra Prabha, who had allegedly discovered the

deceased-Poonam's extra-marital affair prior to the commission of

the alleged suicide. However, it is observed that the said witness

i.e. Smt. Chandra Prabha was never produced before the Court by

the appellant as part of his defense. Therefore, an adverse

inference has to be drawn against the case of the appellant. It is

also observed that the appellant has not produced any evidence to

rebut the allegation qua the occurrence of the said incident within

a short span of marriage i.e. 2 years of marriage. Furthermore,

qua the defense of the appellant that no specific charge or

allegation of dowry has been levelled against him in the FIR; it is

(8 of 8) [CRLA-428/2015]

observed that the FIR is not an encyclopedia which must disclose

all facts and details relating to the commission of an offence.

8. Therefore, considering the contentions put forth by the

learned counsel for both the sides and considering the statements

tendered by the father of the deceased (P.W.1) and Dr. Ashok

Kumar (P.W. 6); the 'post-mortem report' (Ex.P-11) and the 'site-

plan'(Ex.P-7); the fact that the incident occurred within the first

two years of marriage; that no proof was adduced in support of

the plea of alibi taken by the appellant; that the appellant did not

produce a material witness, namely Smt. Chandra Prabha to

support the alleged extra-marital relation of the deceased-Poonam

and considering the fact that there are several injuries reflected on

the appellant's person as per Ex. P-8, this Court is of the view that

the order passed by the learned trial court calls for no interference

of this Court.

9. In the facts of the present case, it can be said without

hesitation that the proseuction has succeeded in proving the

alleged offence beyond doubt by adducing cogent and trustworthy

evidence and therefore, the impugned judgment and sentence

dated 11.03.2015 call for no interference of this Court.

10. As a result, the present appeal is dismissed.

                                    (SAMEER JAIN),J                                          (PANKAJ BHANDARI),J

                                   Pooja /16









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