498a conviction based on extra judicial confession reversed.

Excerpt:Law is well settled by a catena of decisions rendered by Hon’ble the Supreme Court that extra judicial confession is inherently a weak piece of evidence.
prosecution theory that the accused poured kerosene on the person of the deceased and then set her ablaze, is totally (29 of 31) [CRLA-799/2014] unsubstantiated. If this allegation was true, apparently, the kerosene would have dribbled on the front as well as back of the deceased and the burns would not have been restricted to the frontal area of the body. Thus, the defence theory that the deceased fell down on the burning fireplace is probablized. The presence of fractions of kerosene on the scalp, skin and hair of the deceased could be attributed to the fact that the deceased must have been trying to alight the fireplace by using kerosene as is the usual practice. Since the deceased fell down on the fireplace, the possibility of kerosene fractions having been found on her scalp and hair cannot be ruled out.
Rajasthan High Court – Jodhpur
Gopal And Anr vs State on 6 August, 2020
Bench: Sandeep Mehta, Kumari Prabha Sharma
                                             (1 of 31)                    [CRLA-799/2014]


          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
                      D.B. Criminal Appeal No. 799/2014

     1.    Gopal S/o Padma Ram, resident of Bangla Nagar, Bikaner.
     2.    Padma Ram S/o Mohan Ram, residents of Bangla Nagar,
           Bikaner.
          (Presently lodged in Central Jail Bikaner)
                                                                         ----Appellants
                                        Versus
     The State of Rajasthan
                                                                        ----Respondent


    For Appellant(s)          :     Mr.J.S.Choudhary Sr.Advocate with
                                    Mr.Pradeep Choudhary &
                                    Mr.H.S.Shrimali
    For Respondent(s)         :     Mr.Anil Joshi, P.P.
                                    Mr.Praveen Vyas for
                                    Mr.Vineet Jain



               HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA

                                     Judgment

    Date of Pronouncement                    :               06/08/2020
    Date of Reserve                          :               22/07/2020

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

Reportable The instant appeal has been preferred by the accused appellants under Section 374(2) Cr.P.C. being aggrieved of the judgment dated 30.8.2014 passed by learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.14/2013 by which, they were convicted and sentenced as below:-

          Conviction for                 Sentences                   Default Sentence
          Offences under
             Sections




                                           (2 of 31)                  [CRLA-799/2014]


      302/34 I.P.C.             Life imprisonment                 6 months' S.I.
                                with a fine of
                                Rs.50,000/- each
       498A I.P.C.              3 years' S.I. with a              2 months' S.I.
                                fine of Rs.20,000/-
                                each


Briefly stated the facts relevant and essential for disposal of the appeal are noted hereinbelow.

Smt.Geeta, the deceased was married to the appellant No.1 Gopal S/o Padma Ram about 10 years before her unfortunate death in the matrimonial home on 30.10.2010. She was found dead in the kitchen with burn injuries whereupon, her brother Muralidhar P.W.1 lodged a written report (Ex.P1) to the S.H.O. P.S. Nayashahar, District Bikaner alleging inter-alia that his sister was married to the appellant No.1 Gopal before her unfortunate death in the matrimonial home on 30.10.2010. Right from the marriage till her death, Smt.Geeta was harassed and humiliated in the matrimonial home on account of demand of dowry. The husband and father in law of Smt.Geeta were in a habit of consuming liquor and under the influence of liquor, they would beat up Smt.Geeta and also maltreated her owing to demand of money. His sister confided about these happenings with him, his uncle Bhanwar Lal, his father Dwarka Prasad and Mohan Lal etc. whenever she got the opportunity. His family members used to somehow meet the unjust demands of Gopal and Padma Ram by sending them money and other articles from time to time but the greed of the accused persons could not be sated. Presently, Gopal and Padma Ram were in a process of getting a house built for Gopal and thus, his sister was living in a rented house. About a month earlier, Smt.Geeta (3 of 31) [CRLA-799/2014] was beaten by both the accused and was turned out of the matrimonial home with a threat that she should bring a sum of Rs.1 lac from her maternals. On this, the informant’s uncle Bhanwar Lal and brother in law Shankar Lal gave a sum of Rs.50,000/- to Gopal and Padma Ram 15 days prior to the day of incident and assured that the remaining amount would be paid after Deepawali. As the total amount demanded was not paid up, Gopal and Padma Ram became annoyed and persisted that the remaining amount would also have to be paid before Deepawali. On this, the informant and his brother-in-law Shankar Lal approached and assured the accused that they would provide construction material worth Rs.50,000/- to them. After giving this assurance to the accused, the informant, Bhanwar Lal and his brother in law returned. On the previous day i.e. on 29.10.2010, Gopal and Padma Ram turned out his sister Smt.Geeta from the home after beating her and threatened that she would be allowed to return to the matrimonial home only on bringing the amount of Rs.50,000/- or else she would be killed. His sister came to his house in the afternoon and shared her plight with him and his uncle Sohan Lal. In the night, the informant went to the house of Gopal and Padma Ram and berated them that the amount of Rs.50,000/- was promised to be paid after Deepawali but despite that, Smt.Geeta had been maltreated. On this, Gopal and Padma Ram insisted that they required the amount of Rs.50,000/- immediately and if it was not coughed up, Smt.Geeta would end up dead on the next day. The informant, however counselled his sister as well as Gopal and Padma Ram and then returned to his (4 of 31) [CRLA-799/2014] house. In the morning at about 8 O’Clock, Shankar Lal brother in law of the informant called and told him that he had heard the cries of Smt.Geeta coming from her house. On receiving this information, the informant went to the house of Smt.Geeta and saw her lying dead in the kitchen in a burnt condition. The husband and father in law were uttering that they had killed the woman and he could do whatever he liked. This report was submitted by Muralidhar to the S.H.O. Police Station Nayashahar on 30.10.2010 at 11.10 AM. Upon this, an F.I.R. No.274/2010 (Ex.P2) came to be registered at the Police Station Nayashahar for the offences under Sections 302, 498A and 34 I.P.C. and investigation was commenced. The appellants herein were arrested on 30.10.2010. The dead body of Smt. Geeta was got subjected to post mortem by a Medical Board constituted at the P.B.M. Hospital, Bikaner which conducted autopsy and issued a report (Ex.P11) wherein, the Board noticed the following significant signs:

“1. Diffuse swelling present on right shoulder superiorly;

On dissection, extravasated clotted blood present in soft tissues.

2. Diffuse swelling present on right shoulder supero-

laterally; On dissection extravasated clotted blood present in soft tissues.”

The doctors preserved visceras of Smt.Geeta for chemical and histo-pathological examination. Since burns on body of Smt.Geeta were covering an area of 40% only, opinion regarding the cause of death was reserved for receiving the histo-

(5 of 31) [CRLA-799/2014] pathological and chemical examination reports. A bunch of hair and piece of skin from scalp of the deceased were preserved for detection of combustible substance. Blood was preserved for detection of carboxy-haemoglobin. The FSL reports were received from the concerned laboratories. As per the FSL report (Ex.P12), fractions of inflammable petroleum hydrocarbon were detected in the piece of skin and bunch of scalp hair. As per the histopathological report (Ex.P13), most of the internal organs were found congested. As per the FSL report (Ex.P14), the visceras of stomach, intestine, liver, spleen and kidneys gave positive test for the presence of carbon monoxide and gave negative tests for metallic poisons etc. After investigation, a charge-sheet came to be filed against both the appellants for the offences under Sections 498A in the alternative 498A/34; 302 in the alternative 302/34 I.P.C. Since the offence under Section 302 IPC was sessions triable, the case was committed to the court of the Additional Sessions Judge (Fast Track) No.1, Bikaner for trial. Charges were framed against the appellants for the above offences, who pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses and got exhibited 37 documents in order to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, both the accused denied the same and claimed to be innocent. Both the accused took a pertinent plea that they were not present in the house when the incident took place. It was claimed that Smt.Geeta was suffering from epilepsy fits and that she might (6 of 31) [CRLA-799/2014] have fallen down on the burning fireplace while preparing tea in the kitchen. Four witnesses including accused Padma Ram were examined and 28 documents were got exhibited in defence.

The defence took a specific plea that a huge chunk of agricultural land owned by Padma Ram had been sold and from the sale proceeds thereof, significant money was received. Padma Ram was in the process of constructing houses for both of his sons from these sale proceeds; that large sum of money was invested by Padma Ram in the names of his granddaughter i.e. daughter of the accused Gopal and Smt.Geeta and that the financial condition of the complainant party was very weak. There was neither any occasion nor any reason for the accused to have demanded the sum of Rs.1 lac from the deceased or to have harassed her on account of this demand. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, the learned trial Judge, proceeded to convict and sentence the appellants as above. Hence, this appeal.

Shri J.S.Choudhary learned senior counsel representing the appellants vehemently and fervently contended that the entire prosecution case regarding harassment allegedly meted out to Smt.Geeta on account of demand of dowry/money, is cooked up, fabricated and exaggerated. He referred to the statements of P.W.1 Muralidhar, brother of the deceased, P.W.2 Shankar Lal, brother in law of the deceased, P.W.3 Bhanwar Lal uncle of the deceased and P.W.6 Dwarka Prasad father of the deceased and urged that it was admitted by these material witnesses that the financial condition of Dwarka Prasad was very weak as compared (7 of 31) [CRLA-799/2014] to that of the accused party and thus, there was no rhyme or reason as to why the accused would go on demanding money from the deceased. He further urged that all these witnesses have admitted in their evidence that no demand whatsoever was made by the accused from the deceased or from any of the matrimonial relatives either at the time of the marriage or thereafter. He submitted that almost 10 years had elapsed since the marriage of Smt. Geeta with the appellant Gopal and during all these years, there was no complaint whatsoever on any forum, either by the deceased or by her maternal relatives regarding harassment or humiliation of the lady on account of demand of dowry or otherwise. He urged that it is a usual practice in the community to which the parties belong that in case if any such dispute arises, then before approaching the Police, a community panchayat is called. In the present case, no effort was ever made by Smt. Geeta or her maternal relatives to convene any community panchayat or to report the matter to the police and thus, as per Shri Choudhary, the case set up in the F.I.R. and the evidence of the witnesses that the accused started harrassing Geeta owing to demand of Rs.1 lac for construction of a house a month before her death is a sheer exaggeration and fabrication. He submitted that the defence led ample evidence to prove that Padma Ram had sold a large chunk of agricultural land just a few days before the incident and that wholesome amount was received from the sale. Padma Ram invested some amount out of the sale proceeding money into Fixed Deposit Receipts and other deposits for the benefit of his granddaughters (daughters of Gopal and the (8 of 31) [CRLA-799/2014] deceased). Thus, as per Shri Choudhary, had there been greedy intention of the accused, Padma Ram would not have gone about investing money in the names of his granddaughters from the amount received through sale of his agricultural land. He further submitted that Padma Ram invested equal amounts from the sale proceeds for construction of houses for his two sons viz. Gopal and Omprakash. The Investigating Officer could have investigated the matter from the in-laws of Omprakash to find out whether similar demand was being made from them also, which would have lended credence the prosecution case that the accused were demanding money from Geeta or her maternal relatives for construction of house. He further submitted that there are grave discrepancies in the evidence of the material prosecution witnesses regarding their claim that a sum of Rs.50,000/- had been paid to the accused towards construction of the house of Padma Ram and that the accused were still persisting for the remaining amount of Rs.50,000/-. On these submissions, Shri Choudhary vehemently and fervently contended that the finding recorded by the trial court in the impugned judgment that the accused subjected Smt.Geeta to cruelty on account of demand of a sum of Rs.1 lac for construction of a house, is absolutely baseless and not supported by plausible evidence and hence, the impugned judgment is liable to be set aside.

He further urged that the prosecution theory regarding death of Smt.Geeta being homicidal is also unsubstantiated from the evidence available on record. In this regard, Shri Choudhary’s submission was that Geeta got burn injuries only on the upper (9 of 31) [CRLA-799/2014] frontal part of the body i.e. on the thoracic region, face and upper limbs. He submitted that if at all, there was any truth in the prosecution case that the accused poured kerosene on Smt.Geeta and then set her to fire, then the burns would not have been restricted to the frontal area only and furthermore, the extent of burns would have been much more than 40% as noticed by the Medical Board while conducting postmortem upon the dead body of Smt.Geeta. He further submitted that the two contusions were noticed by the Medical Board on the shoulder of the deceased Smt.Geeta when the post mortem was conducted. As per Shri Choudhary, this observation is in conformity with the defence suggestion that Smt.Geeta fell faceforward on the fireplace while trying to alight the same and thus, she received the 40% burns on the frontal areas referred to supra. He contended that the Medical Board did not conclude that the 40% burns noticed on the body of the deceased Smt.Geeta were sufficient to cause her death in the ordinary course of nature. Presence of carbon particles was detected inside the larynx and trachea of the deceased which corroborates the fact that the deceased must have become drowsy because of inhalation of carbon monoxide and in this stupor, she must have fallen on the burning fireplace whereby, she received the contusions and the burns on the front side. He urged that the very fact that after conducting autopsy, the Medical Board could not conclude its opinion regarding the cause of death of Smt.Geeta clearly indicates that her burn injuries were not of such grave nature so as to be considered being the cause of her death. He further submitted that the deceased was suffering from (10 of 31) [CRLA-799/2014] epilepsy which fact is fortified from the medical as well as the defence evidence and the possibility of her having fallen on the burning fireplace under the effect of an epileptical fit, cannot be ruled out. Shri Choudhary submitted that if there was any substance in the conclusion of the Medical Board that the cause of death of Smt.Geeta was shock due to burns, then this opinion would have been expressed immediately after the autopsy had been carried out. There was no reason for the Medical Board to have deferred the matter for receiving the histopathological and the viscera examination reports before giving its final opinion regarding the cause of death.

Shri Choudhary further submitted that the allegation levelled by the material prosecution witnesses that both the accused made an extra judicial confession before them is also false and fabricated. As per him, there exist grave contradictions in the prosecution evidence on the aspect of the extra judicial confession.

Shri Choudhary further submitted that P.W.1 Muralidhar was admittedly living at a distance of just 2½ kms. from the house of the accused. He allegedly received information regarding his sister’s cries being heard from inside her house at about 8 O’Clock, but despite the witness reached the house of the deceased about 1½ hours later and in the intervening period, he took out time to bathe etc. Shri Choudhary submitted that this unnatural conduct of the witness completely destroys the creditworthiness of his testimony. As per him, it is impossible to believe that a brother, who knows that his sister is being (11 of 31) [CRLA-799/2014] maltreated in the matrimonial home, would waste time to the extent of almost 1½ hours before reaching out to his sister, who was reported to be in serious distress. Shri Choudhary further submitted that P.W.6 Dwarka Prasad father of the deceased also lives just near the house of P.W.1 Muralidhar and it can be presumed that on having received the information regarding Smt.Geeta being in trouble, he too must have rushed to the place of incident with his son P.W.1 Muralidhar. However, P.W.6 Dwarka Prasad never alleged that the accused made any extra judicial confession that they had killed Smt. Geeta. Shri Choudhary submitted that the first person, who came to know that Smt.Geeta was in trouble was her brother-in-law P.W.2 Shankar Lal. He is an immediate neighbor of the house where the incident took place. However, despite knowing that his sister-in-law might be in trouble, the witness made no effort whatsoever to go inside and find out about her well being. Shri Choudhary submitted that the possibility of immediate medical aid being provided to the deceased was imminent if the witness had gone in and his failure to do so throws a grave doubt on credibility of his evidence. Thus, as per Shri Choudhary, P.W.2 Shankar Lal is an unreliable witness. Shri Choudhary further submitted that there are grave discrepancies and contradictions in the statements of P.W.1 Muralidhar the first informant and P.W.2 Shankar Lal regarding the manner in which, the information regarding Smt. Geeta having got burnt was conveyed. Whilst P.W.1 Muralidhar claimed in his evidence that information of the incident was given to him by his brother in law P.W.2 Shankar Lal, who never stated in his evidence (12 of 31) [CRLA-799/2014] that he gave any information to P.W.1 Muralidhar that he had heard cries of Smt.Geeta coming out from her house. Shri Choudhary referred to the statement of P.W.2 Shankar Lal wherein, he admitted that the police was also present when P.W.1 Muralidhar reached the place of incident. As per Shri Choudhary, even if it is presumed for the sake of arguments that the accused made an extra judicial confession in presence of P.W.1 Muralidhar, it would be hit by Section 26 of the Indian Evidence Act because the Police Officers were present at the spot. Shri Choudhary further submitted that the original F.I.R. has been concealed by the prosecution. In this regard, he referred to the statement of P.W.1 Muralidhar wherein, witness admitted that the report (Ex.P1) which was shown to him was different from the original complaint which he got typed from the market and presented to the Police. Thus, as per Shri Choudhary, manifestly, it is a case wherein, the original F.I.R. has been destroyed and has been substituted by a new report just to introduce the fabricated allegation of extra judicial confession on the advice of the Police Officers. Shri Choudhary thus craved acceptance of the appeal; sought quashing of the impugned judgment of conviction and sentence and implored the Court to acquit both the accused appellants of all the charges.

Per contra, learned Public Prosecutor and Shri Vineet Jain, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellants’ counsel. They contended that Smt.Geeta was married to the appellant Gopal about 10 years before the incident. Right from the (13 of 31) [CRLA-799/2014] date of the marriage till the date of the incident, the accused were indulging in continuously harassing and humiliating Smt.Geeta on account of demand of dowry. The father of the deceased P.W.6 Dwarka Prasad is a poor man and thus, he could not satisfy the unjust greed of the accused. The demand of Rs.1 lac which the accused persons were making for raising construction of a house could not be fully satisfied, whereupon the accused took the extreme step of ending Smt.Geeta’s life by setting her ablaze. As per learned Public Prosecutor and Shri Jain learned counsel representing the complainant, the prosecution has duly established by cogent and clinching evidence, essential ingredients of the offences alleged against the accused. They fervently opposed the submissions advanced by Shri Choudhary contending that the same are devoid of merit and sought dismissal of the appeal.

We have given our thoughtful consideration to the submissions advanced at the bar, minutely perused the impugned judgment and thoroughly re-appreciated the evidence available on record.

It is an admitted fact from the prosecution evidence that Smt.Geeta was married to the appellant Gopal nearly 10 years before the date of incident and thus, the prosecution cannot take recourse to the aid of Section 113(B) of the Indian Evidence Act so as to bring home the guilt of the accused which would have to be established by cogent and clinching direct evidence. The trial court primarily relied upon the evidence of extra judicial confession as stated by P.W.1 Muralidhar and also used the (14 of 31) [CRLA-799/2014] reverse burden of proof under Section 106 of the Indian Evidence Act while holding the charges to be proved and recording guilt of the accused. It is an admitted case of the prosecution that the accused had never made any demand from the complainant party or the deceased at the time of the marriage or any time soon thereafter. No complaint was ever made by the matrimonial relatives of the deceased at any forum, be it to the police or at the community level for raising the alleged grievance that the accused were indulging in harassing and humiliating Smt. Geeta on account of demand of dowry or money during the period of 10 years for which the marriage subsisted. Thus, the prosecution allegation that the accused used to harass and humiliate the deceased on account of demand of dowry has to be appreciated with a great degree of circumspection. Other than the demand of Rs.1 lac which was alleged by the witnesses as having been made by the accused about a month before Smt.Geeta expired, none of the prosecution witnesses viz., P.W.1 Muralidhar, P.W.2 Shankar Lal, P.W.3 Bhanwar Lal and P.W.6 Dwarka Prasad disclosed as to what exactly was the nature of demands being made by the accused during the prolonged period of ten years. P.W.1 Muralidhar alleged that right from the date of marriage, Padma Ram and Gopal used to beat Smt.Geeta after consuming liquor and demanded dowry and that this fact was known to his father and uncles Sohan Lal, Bhanwar Lal and Mohan Lal. The maternal relatives would often give money and other articles to Smt.Geeta so that she could live happily in the matrimonial home. However, P.W.2 Shankar Lal, brother-in-law of the deceased never stated in (15 of 31) [CRLA-799/2014] his evidence that any article or valuable had ever been given to the accused persons to satisfy their so called demands during this period of 10 years. P.W.6 Dwarka Prasad, Geeta’s father alleged that Padma Ram and Gopal used to consume liquor and would often beat Geeta up for petty demands. However, he too did not elaborate as to what exactly was the nature of these demands. He alleged that a month before Smt.Geeta’s death, the accused demanded a sum of Rs.1 lac and when the same was not satisfied, Smt.Geeta was turned out of the house. In cross-examination, Dwarka Prasad admitted that his financial condition was quite weak as compared to that of Padma Ram; that he used to provide all necessary household articles to his sons for sustaining their families. His sons used to work as laborers and masons. P.W.6 Dwarka Prasad admitted in his cross-examination that no report was ever lodged regarding the harassment allegedly being meted out to Smt.Geeta by the accused. On numerous instances, his daughter stayed at his house for six months at a stretch, however he never told anyone of this happening. In the next line, the witness admitted that Smt.Geeta used to come to his house happily and of her own free will and volition and would go back happily to her matrimonial home. These words were spoken by the witness in the following manner:

“jkth[kq’kh vkrh Fkh vkSj jkth[kq’kh Hkst nh Fkh ” Manifestly and if at all, Smt.Geeta was making complaints regarding harassment and humiliation by the accused on account of demand of dowry while staying at the maternal home, then her mother and her sister-in-laws would be the persons in whom she (16 of 31) [CRLA-799/2014] would definitely confide about her misery. None of the female maternal relatives of Smt. Geeta was examined by the prosecution to support the theory that she was being mal-treated in the matrimonial home and that she used to complain of this to any of her maternal relatives. If at all, there was a semblance of truth in the allegation that the mal-treatment of Smt.Geeta was continuing for almost 10 years, then her maternal relatives were expected to raise this issue by filing a complaint either to the police and if not, then at least intervention of the community elders would definitely have been sought. Not only this, the maternals never even reprimanded the accused for this so called cruel behaviour. As noted above, no such efforts were ever made nor was any such step to report the matter taken by the maternals of the deceased which is sufficient to satisfy us that the allegations levelled by P.W.1 Muralidhar, P.W.2 Shankar Lal, P.W.3 Bhanwar Lal and P.W.6 Dwarka Prasad in their evidence that the accused were indulged in meting out continuous maltreatment to the deceased on account of demand of dowry for the entire period of 10 years is nothing short of sheer exaggeration/fabrication which has to be discarded. In this background, we are disinclined to believe the evidence of the material prosecution witnesses viz. P.W.1 Muralidhar, P.W.2 Shankar Lal, P.W.3 Bhanwar Lal and P.W.6 Dwarka Prasad to the extent that while marriage of Smt. Geeta subsisted, the accused were continuously mal-treating her on account of demand of dowry or other valuable articles over a period of ten years.

Once the prosecution theory regarding continuous harassment being meted out to the deceased on account of (17 of 31) [CRLA-799/2014] demand of dowry is eliminated, the prosecution case would rest on the bald allegation that the accused were in the process of constructing a house and that a sum of Rs.1 lac was being demanded by them for this purpose from the deceased Smt.Geeta. The trial court held this allegation to be proved from the prosecution evidence and considered it to be an incriminating circumstance. It was further held that the accused turned Smt.Geeta out of the house because this demand was not fully satisfied out by her father and brother. The trial court also held that a sum of Rs.50,000/- had already been paid to the accused 15 days before the incident. For evaluating this allegation in the correct perspective, we propose to reproduce verbatim, certain extracts from the evidence of the prosecution witnesses which read as below:

P.W.1 Muralidhar “;g lgh gS fd fookg ls ysdj essjh cgu dh e`R;qi;ZUr rd gekjs }kjk vfHk;qDr ds fo:) dksbZ fjiksVZ ugh fy[kkbZ xbZA”

“;g lgh gS fd esjs cguksbZ xksiky dk edku inekjketh cuok jgs Fks vkSj mlesa xksiky Hkh lg;ksx djrk Fkk inekjketh feL=h dk dke djrs FksA”

“;g lgh gS fd izn”kZ ih 1 ds Hkkx lh ls Mh esa esjs pkpk ——– tkdj fn, esa Hkaojyky o ‘kadjyky ds lkFk esjk tkuk o ipkl gtkj :i;s nsuk ugh fy[kk gSA eSusa izn’kZ ih 1 esa fy[kk;k Fkk blesa D;ksa ugh fy[kk irk ughA”

“;g lgh gS fd lxkbZ vkSj ‘kknh gqbZ rc rd vfHk;qDrx.k dh rjQ ls fdlh izdkj dh dksbZ (18 of 31) [CRLA-799/2014] ekax ugh FkhA igyh ckj fdl rkjh[k efgus o o”kZ esa ngst dh ekax dh irk ughA xhrk o xksiky dh ‘kknh dh rkjh[k efguk o”kZ irk ughA”

“;g lgh gS fd inekjketh viuk iqjkuk edku rksM+dj xksikyjke ds fy, cuok jgs FksA eq>s irk ugh gS fd inekjketh us esjh cgu] o cPPkksa ds fy, twu esa feys :i;ksa esa ls muds uke ,QMh djokbZ gksA eS vkseizdk’k dh iRuh dk uke euh”kk gks ugh tkurkA vkseizdk’k ds fdrus cPps gS irk ughA chl chl gtkj dh ikap ,QMh inekjke dh iksrh euh’kk] xojk ds uke chl chl gtkj :i;s dh ikap ,QMh inekjke us djokbZ gks rks irk ughA inekjke dh iRuh dk uke deyk gS] ftlds uke chl chl gtkj dh ikap ,QMh djokbZ gks rks irk ughA inekjke us Lo;a ds uke ls chl chl gtkj :i;s dh ikap ,QMh djokbZ gks rks irk ughA”

P.W.2 Shankar “;g lgh gS fd esjs lkeus xhrk nsoh ls xksiky Lal o inekjke us dHkh Hkh :i;ksa dh ekax ugh dhA”

“;g lgh gS fd eSus xksiky o inekjke dks dHkh esjh lkyh ds lkFk ekjihV djus ds laca/k esa vksyek ugha fn;kA”

“;g lgh gS fd eSus xhrk ds lkFk ekjihV gksrs ugh ns[khA ;g lgh gS fd esjh ekStwnxh esa fdlh us xhrk ls :i;s ugh ekaxsA”

P.W.3 Bhanwar “;g lgh gS fd ‘kknh ds le; vkSj ‘kknh ds Lal iwoZ dksbZ ekax ugh Fkh] ‘kknh ds le; cPph dh ekax dh Fkh] cPph ls esjk eryc xhrk ls gSA”

“;g lgh gS fd ‘kknh ds ckn ls e`R;q ls iwoZ (19 of 31) [CRLA-799/2014] rd inekjke vkSj xksiky ds fo:) ngst izrkM+uk dh dksbZ fjiksVZ ugh fy[kokbZ FkhA”

“;g lgh gS fd iqfyl c;ku izn’kZ Mh 2 esa ;g ckr fy[kh gqbZ ugh gS fd ejus ls Ng eghus igys xhrk nsoh dks ?kj ls fudky fn;k mldks mlds llqjky okyksa us fudky fn;k] mls dwV ekj djds fudky fn;k Fkk budh iSlks dh eakxh FkhA c;ku fy[kk;k Fkk D;ksa ugh fy[kk gS esjs dks irk ugh gSA”

P.W.6 Dwarka “;g lgh gS fd esjh ekyh gkykr inekjke dh Prasad cuhLir detksj gSA ;g lgh gS fd pkjksas csVksa dks ?kj x`gLFkh dk lkeku eSa ykdj nsrk gwaA og [kpkZ mudh vkSj esjk ,d gh gS flQZ jksVh jksVh vyx djokrs gSA”

“;g lgh gS fd lxkbZ ds le; o fookg ds le; inekjke vkSj mlds ifjokj okyksa us dksbZ ekax ugh dh Fkh Lor% dgk fd ckn easa gh gksrh gSA”

“;g lgh gS fd xhrk vius vki gh vkrh Fkh vkSj vius vki gh pyh tkrh FkhA ;g lgh gS fd bu nl lkyksa esa dksbZ fjiksVZ inekjke o xksiky ds f[kykQ ugh fy[kk;h Fkh vt[kqn dgk fd lekt esa fjiksVZ djkus dh ijEijk ugh gSA cPph dk ?kj clkuk Fkk blfy, fjiksVZ ugh fy[kk;h Fkh D;ksafd Ng Ng eghuksa rd esjh iq=h esjs ?kj ij jgrh FkhA”

“;g lgh gS fd xhrk ds llqjky okyksa dks le>kus o :i;s nsus eS dHkh ugh x;kA”

“;g lgh gS fd ;g :i;s esjs lkeus esjs csVs us dHkh xksiky o inekjke dks ugh fn;s FksA”

(20 of 31) [CRLA-799/2014] P.W.6 Dwarka Prasad father of the deceased admitted in his cross-examination (reproduced supra) that his daughter would voluntarily come to the maternal home. She stayed there for months at a stretch and would go back to the matrimonial home happily. Keeping this admission of P.W.6 Dwarka Prasad in mind, apparently the allegation that the accused were indulging in regular harassment and humiliation of the deceased on account of demand of dowry is falsified.

On evaluating these material facts as appearing in the evidence of material prosecution witnesses and the defence evidence it is duly established that Padma Ram had invested significant amounts from the sale proceeds of his agricultural land in the names of his granddaughters (daughters of accused Gopal and the deceased Smt.Geeta) before the incident. Thus, we are duly satisfied that the prosecution theory regarding the accused having harassed and humiliated the deceased on account of demand of Rs.1 lac is totally unsubstantiated. There are grave contradictions in the statements of the prosecution witnesses regarding this allegation. Without prejudice to the above finding, even if for a moment, it is accepted that the accused indeed demanded a sum of Rs.1 lac from the complainant party, then also, the said demand must have been by way of a loan/help to construct the house of Gopal. This demand, was allegedly made after more than 10 years of the marriage of Gopal and Geeta and thus, it cannot be construed to be a demand of dowry. It may be possible that the accused were feeling financially drained because of the construction of two houses and sought some aid from P.W.6 (21 of 31) [CRLA-799/2014] Dwarka Prasad and thus this demand, if any can by no means be construed to be a demand of dowry. Hence, we feel that the finding recorded by the trial court holding that the accused harassed and humiliated the deceased on account of demand of Rs.1 lac constituting a demand of dowry soon before her death and that this was the motive for her murder, is totally unsustainable as the same has not been recorded after an apropos appreciation and evaluation of the evidence available on record. Once this finding is set aside, it is clear that the accused could have had no motive whatsoever to kill the deceased because there is no other allegation of the prosecution witnesses on this aspect. Manifestly, thus, there is no evidence on record regarding conduct of the accused which can lead the Court to draw an inference that they had motive to kill Smt.Geeta.

If the motive is excluded, apparently the only evidence which remains on record so as to connect the accused with the crime of murdering Smt.Geeta would be the prosecution allegation that the accused made an extra judicial confession that they had killed Smt.Geeta. In this regard, P.W.1 Muralidhar alleged in the F.I.R. (Ex.P/2) as below:

“vkt lqcg djhc 8%00 cts ds yxHkx eq>s esjs cguksbZ ‘kadjyky us bryk nh fd vkidh cfgu dh lqcg jksus fpYykus dh vkokt vk jgh FkhA ,Q tc eSa muds ?kj ij x;k rks ns[kk fd xhrk tyh gqbZ voLFkk esa jlksbZ esa iM+h gqbZ Fkh vkSj mldk ifr o llqj dg jgs Fks fd bl jkaM dks ekj fn;k gS vkidks tks djuk gS oks dj yksA “

When deposing on oath, P.W.1 Muralidhar alleged as follows:

(22 of 31) [CRLA-799/2014] “ogkW ij xksikyjke o inekjke [kMs Fks rks mUgksus dgk jkaM dks ekj fn;k rsjs dks dqN djuk gS dj ysA”

Since the incident involved unnatural death of a woman in a matrimonial home, apparently her maternal relatives would be the persons most concerned about her fate. P.W.1 Muralidhar claims to have received information regarding Smt.Geeta’s cries being heard through P.W.2 Shankar Lal at 8 AM in the morning. He admitted in his evidence that his house was at a distance of about 2½ kms from the house where Smt.Geeta lived on rent. He also admitted that he reached the place of incident between 9.15 to 9.30 AM. In the interregnum, he took out time to bathe etc. and then he reached the house of the deceased between 9.15 to 9.30 AM. This casual behaviour of Muralidhar in not rushing to his sister’s house immediately despite knowing the fact that she was in distress and reaching there after more than one hour even though the distance to be travelled was only 2½ kms, throws a great deal of doubt on his conduct and credibility. The prosecution claims that P.W.2 Shankar Lal heard the distress cries of the deceased in the morning and he called Muralidhar soon thereafter. If at all there was even a grain of truth in the allegation levelled by the prosecution witnesses that for the previous one month, the accused were indulging in meting out harassment and humiliation to smt. Geeta and had even turned her out of the house on account of demand of Rs.1 lac and that P.W.2 Shankar Lal heard her fervent cries coming from inside, then there was no reason as to why the witness being the brother-in-law of Geeta would not (23 of 31) [CRLA-799/2014] immediately rush into her house to find out about her well-being. The rank indifference of P.W.2 Shankar Lal in this regard again creates a great deal of doubt about the truthfulness of the entire case. If truly the situation was so tense, then Muralidhar, would not have acted so casually as he portrayed. Thus, the theory putforth by the prosecution that P.W.2 Shankar Lal heard the distress cries of Smt.Geeta and thereafter, he intimated Muralidhar who rushed to her house becomes totally doubtful. There is another reason to doubt this theory of the prosecution because, whilst in the F.I.R., it is alleged that Shankar Lal called up Muralidhar and told him about the incident, but on the contrary, Muralidhar stated in his evidence that Shankar Lal made the call on the mobile phone of his cousin sister Heera Devi, who in turn informed Muralidhar. Heera Devi was not examined in evidence to corroborate this theory. P.W.2 Shankar Lal categorically stated in his evidence that he made call directly to Muralidhar and denied in his cross-examination that he had made the call to Heera Devi. Shankar Lal also stated in his evidence that he heard the cries of Geeta and people were seen coming out of the house. He asked Gopal as to what had happened upon which, he replied that Smt.Geeta had passed away. As per the FIR, Shankar Lal allegedly informed Muralidhar over phone regarding the incident. If there was any truth in this version, then Muralidhar would have mentioned in the report that Shankar Lal conveyed to him on phone that Smt.Geeta had passed away. The discrepancy in the manner in which the information of the incident was received by Muralidhar and the rank indifference shown by him in going to the (24 of 31) [CRLA-799/2014] house of Smt.Geeta creates a great deal of doubt on the credibility of the entire prosecution case.

Thus, the only significant piece of evidence which the prosecution can hang on to for bringing home the guilt of the accused would be the extra judicial confession allegedly made by Gopal and Padma Ram. Law is well settled by a catena of decisions rendered by Hon’ble the Supreme Court that extra judicial confession is inherently a weak piece of evidence. In this regard, reference may be made to the judgment rendered by Hon’ble Supreme Court in the case of Madan Lal Guru Vs. State of Rajasthan reported in 2020(1) Cr.L.R. (Raj.) 364 relied upon by Shri J.S.Choudhary, learned senior counsel representing the appellants. Thus, the prosecution case which hinges totally on evidence of extra judicial confession allegedly made by the accused has to be viewed with circumspection and must find corroboration from other substantive evidence before the same can be relied upon so as to affirm the guilt of the accused. It has come in evidence that Dwarka Prasad and Muralidhar reside nearby each other. Thus, it was expected in the natural course of human behavior that Dwarka Prasad would also have rushed to the house of Smt.Geeta after receiving information regarding some harm having befallen her. As has been mentioned above, P.W.6 Dwarka Prasad father of the deceased, did not state anything about the dying declaration allegedly made by the accused in his evidence. P.W.1 Muralidhar claimed in his F.I.R. that when he reached the house of the deceased, Smt.Geeta was lying dead in a burnt condition in the kitchen and her husband and her (25 of 31) [CRLA-799/2014] father in law were uttering in challenging tones that they had killed her. P.W.2 Shankar Lal is the real brother in law of Smt.Geeta and Muralidhar. He resides just beside the house where, the incident took place and yet he made no efforts whatsoever to enter into the house of Smt.Geeta with Muralidhar which again gives indication regarding his unnatural conduct. P.W.2 Shankar Lal admitted in his cross-examination that he called Muralidhar and told him of the incident. Muralidhar and other relatives came there and he also went to the place of incident. Shankar Lal also admitted that no sooner Muralidhar reached the place of incident, police also came there. P.W.4 Mohan Lal uncle of the deceased alleged that on receiving information that Smt.Geeta had been killed, he alongwith Muralidhar, Dwarka Prasad, Bhanwar Lal and other people went to the place of incident where Padma Ram blurted out in their presence that Smt.Geeta had been killed by them. In this statement, there is no allegation that Gopal Ram was also a party to the extra judicial confession. Muralidhar did not mention about presence of anyone of his family members when the extra judicial confession was allegedly made by the accused. Clearly thus, evidence of the material prosecution witnesses regarding the so called extra judicial confession becomes doubtful. P.W.5 Sohan Lal alleged that on 30.10.2010 in the morning at about 8 O’Clock, he received a call from Dwarka Prasad that Smt.Geeta had been killed on which, he went to the place of incident and saw the dead body of his niece lying in the kitchen. Padma Ram and Gopal were standing there in an intoxicated condition. They blurted out that they had killed the (26 of 31) [CRLA-799/2014] lady and challenged the witnesses that they were free to do whatever they desired. Again this allegation of the witness is not corroborated either by the informant P.W.1 Muralidhar or by P.W.2 Shankar Lal. In view of the glaring discrepancies noticeable in the evidence of the material prosecution witnesses, their theory regarding the extra judicial confession allegedly made by the accused becomes doubtful and the same has to be discarded. In addition thereto, the categoric statement of P.W.2 Shankar Lal that when Muralidhar reached the place of incident, the Police was also present, creates a doubt in the mind of the Court that the extra judicial confession if any might have been coerced in the presence of the Police officers. Thus, clearly, the evidence of the prosecution witnesses which we have discussed threadbare regarding the extra judicial confession allegedly uttered by the accused is highly discrepant and unreliable. In addition thereto, the same does not get any corroboration whatsoever from independent substantive evidence.

It is significant to note here that P.W.1 Muralidhar admitted in his cross-examination that he got a report typed on a computer from the market and presented the same to the Police. The said report did not see the light of the day because as admitted by Muralidhar in his cross examination, the report (Ex.P1) was got typed at the Police Station and was not the report which he got prepared in the market. The witness admitted that the report which he got typed in the market was in two pages whereas, the report (Ex.P1) which was prepared at the Police Station was on a single page and the contents were typed on the front and reverse (27 of 31) [CRLA-799/2014] leaves. In this background, a grave shadow of doubt is created that even the F.I.R. (Ex.P2) is a fabricated document. Thus, the evidence of oral extra judicial confession allegedly made by the accused upon which implicit faith and reliance was placed by the trial court for affirming the charges and convicting the accused, is not reliable and has to be discarded.

The other witnesses examined by the prosecution are formal in nature and manifestly, their evidence would have no bearing on the fate of the case. Even the evidence of the investigating officer Dharam Punia P.W.10 is of formal character and thus, need not be discussed in detail.

Once the evidence of extra judicial confession is discarded, there remains hardly anything on the record of the case to affirm the guilt of the accused.

Now, we propose to discuss the medical evidence which too has a significant bearing on the case.

On going through the postmortem report (Ex.P11), it is clear that the Medical Board which conducted autopsy upon the body of the deceased, noticed burns to the extent of 40% only of the total body surface area Smt. Geeta. The burn lesion was noticed on the face all over, neck all over, chest, antiro laterally and all over abdomen. Superficial burn lesion was present on both the thighs and legs as well as both the arms. Singing of scalp hair was noticed at some places. Two diffused swellings were noticed on the right shoulder. The doctors reserved the opinion regarding the cause of death in the following terms:

(28 of 31) [CRLA-799/2014] “Regarding cause of death will be given after receipt of chemical and histopathological examination report. Bunch of hairs and skin from scalp preserved for detection of combustible substance. The blood has been preserved for detection of carboxy-hemoglobin and piece of skin and tissue from burnt and unburnt area for comments whether burns are ante mortem or post mortem in nature”

The chemical examination report (Ex.P12) received from the FSL refers to presence of fractions of inflammable petroleum hydrocarbon in the piece of skin and bunch of scalp hair. The FSL report (Ex.P14) indicates presence of carbon monoxide in the blood samples as well as visceras taken from stomach, intestine, liver, spleen etc. Extensive presence of carbon monoxide in these visceras clearly indicates that the deceased must have inhaled the gas for a significant period of time. Medical science is unequivocal on the principle that inhalation of carbon monoxide leads to drowsiness, unconsciousness and even death by suffocation. Thus, the defence theory that the deceased fell down on the fireplace while trying to alight the same, is substantiated because the presence of carbon monoxide in her visceras, definitely gives rise to an imminent possibility of her having become unconscious and collapsing on the burning fireplace. This finding is duly corroborated by the medical evidence, because burns were noticed by the doctors only on the frontal body parts of the deceased and there were no marks of burns on her back.

In wake of the above discussion, we are of the firm opinion that the prosecution theory that the accused poured kerosene on the person of the deceased and then set her ablaze, is totally (29 of 31) [CRLA-799/2014] unsubstantiated. If this allegation was true, apparently, the kerosene would have dribbled on the front as well as back of the deceased and the burns would not have been restricted to the frontal area of the body. Thus, the defence theory that the deceased fell down on the burning fireplace is probablized. The presence of fractions of kerosene on the scalp, skin and hair of the deceased could be attributed to the fact that the deceased must have been trying to alight the fireplace by using kerosene as is the usual practice. Since the deceased fell down on the fireplace, the possibility of kerosene fractions having been found on her scalp and hair cannot be ruled out.

From the evidence of the medical jurist P.W.9 Dr.Sanjeev Buri, it is clear that after conducting autopsy on the dead body, the Board could not draw any conclusion regarding the cause of her death. This opinion was reserved for receiving the chemical report and histopathological report. A very significant extract from the statement of P.W.9 Dr.Sanjeev Buri is reproduced hereinbelow brings the entire medical testimony under a cloud of doubt:

“;g dguk lgh gS fd ‘ko ijh{k.k ds le; Loj ra= o ‘okl uyh esa cgqr de dkcZu ikfVZdy gksuk ik;k xk;k Fkk blfy;s cksMZ ;k eSa crkus esa l{ke ugha Fks fd xhrk dks mlds ‘kjhj ij tks cuZ Fks og ,UVheksVZe Fks ;k iksLVekVZe FksA”

The doctor clearly admitted that after assessing the extent of carbon particles in the voice box and the wind pipe of the deceased, the Board was unable to conclude whether the burns on the body of the deceased were ante mortem or post mortem. This admission of the doctor completely destroys the prosecution case (30 of 31) [CRLA-799/2014] because it is not even established by convincing evidence that the burns noticed on the body of the deceased were ante mortem in nature.

In this background, even the reverse burden of proof under Section 106 of the Evidence Act would not come to the aid of the otherwise fragile and fragmented prosecution case.

As an upshot of the discussion made hereinabove, we are of the firm opinion that the prosecution has failed to prove its case against the accused by leading evidence, which can be accepted beyond all manner of doubt and thus, the accused deserve to be acquitted by giving them the benefit of doubt. As a consequence, the findings recorded by the trial court in the impugned judgment have to be set aside as being perverse and based on incorrect appreciation of evidence.

Accordingly, the appeal is allowed. The impugned judgment dated 30.8.2014 passed by learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.14/2013 is quashed and set aside. The accused appellants are acquitted of all the charges. They are in custody. They shall be set at liberty forthwith if not wanted in any other case.

However, keeping in view the provisions of Section 437-A CrPC, each of the acquitted accused appellant are directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond each 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 (31 of 31) [CRLA-799/2014] judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.

Record of the trial court be sent back forthwith. (KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J /tarun goyal/ Powered by TCPDF (www.tcpdf.org)

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