HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 891 / 2008
Bhanwra Ram S/o Sh. Kheta Ram, by caste Dholi, aged 30 years,
Resident of Bhoongra, Police Station Shergarh, District Jodhpur.
[Presently lodged in Central Jail, Jodhpur]
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr. M.K. Saini.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
__
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
[Per Hon’ble Mr. G.K. Vyas, J.]
Date of Judgment: 18/08/2017
In this criminal appeal filed under Section 374 Cr.P.C. by the
accused appellant, Bhamwra Ram, the judgment dated 21 st of
November, 2008 passed by learned Addl. Sessions Judge (FT)
No.1, Jodhpur is under challenge, whereby the learned trial court
convicted the accused appellant for offence under Section 302 IPC
in Session Case No.184/2007 arising out of F.I.R. No.72/2007 of
Police Station Shergarh, and passed sentence for life
imprisonment along with fine of Rs.5000/- with default stipulation
to undergo one year’s additional imprisonment.
(2 of 11)
[CRLA-891/2008]
As per facts of the case a written report (Ex.P/6) was
submitted by one Surta Ram (PW.4), father of deceased, Meera
Devi, in which following allegations were submitted by him, which
reads as under:
“lo
s k eas
Jheku Fkkuns kj lkgc
iqfyl Fkkuk “kjs x+Jheku th]
fuons u gS fd ljq rkjke S/o fgerkjke tkfr ky s h lkfdu erkMs k+
fd vtZ gS fd ejs h nks cPph;ka ehjk o fuca q ds vkt ls 10 lky igys
[krs kjke S/o jkepUnz tkfr ky s h fuoklh Hkxaw jk ds iq Hkoa jkjke ok
vkes kjke dks C;kgh FkhA mlds nks lky ckn vkes kjke dk Hkoa jkjke ok
mlds ekrkfirk [krs kjke “kk;rh pkjkas us ejs h yMd
+ h fuca q ds lkFk ekjihV
dj mls tyk fn;k FkkA
ml fjikZsV ij Hkoa jkjkevkes kjke muds ekrkfirk
[krs kjke”kk;rh dk pkyku gks pqdkA mlds ckn 45 efgus ckn tekur
ij fjgk gks x;s FkAs
ejs h yMd + h ehjk buds lkFk gh xkoa Hkqxjk eas jgrh FkhA og ejs s
ikl erkMs k+ feyus dks ugha Hkt
s rs FkAs
dy rk- 26@9@007 jkr dks djhc 10 cts 34 vkneh xkoa
Hkqxjk ls thi }kjk erkMs k+ vk;s ok eqs dgk fd rqEgkjh yMd
+ h ehjk xkoa
ds ckgj Vkda s eas iMd
+ j ej pqdh gAS
bRryk feyus ij eaS xkao ds eq[kh;k jkeflga ] xkfs oUnz flga HkkVh]
vukis flga ] vejk flga roa j o tBs qflga fiMh;kj dks yd
s j Hkqxrjk igqp a k
xkoa ds ckgj Vkd
a s ds mij ckgj ejs h cPph ehjk dh yk”k iMh+ FkhA
erkMs k+ eq[kh;k }kjk xkoa ds Hkqxjk fuokfl;ks ls iwNrkN dh lUrq’V
tokc ugha feyus ij ejs h vtZ gS fd bu pkjkas [krs kjke] “kk;rh] Hkoa jkjke]
vkes kjke ds }kjk ejs h yMd + h ehjk dks bruk ij”s kku dj fn;k fd mls
ejus dks etcjw gkus k iMkA
fygktk ejs h vtZ gS fd bl ?kVuk dk lgh lkj fudyok dj pkjkas
dks l[r ltk fnykoAs ”
(3 of 11)
[CRLA-891/2008]Upon the aforesaid complaint filed on 27.09.2007 at 09.15
AM, the S.H.O., Police Station- Shergarh, registered an FIR
No.72/2007 under Section 498A and 306/34 IPC and commenced
the investigation.
The S.H.O. after registration of formal FIR (Ex.P/19) went
on the spot and prepared site plan (Ex.P/7). The details of the
dead body of deceased Meera Devi wife of the appellant, were also
recorded vide Ex.P/8. The postmortem of the dead of deceased
Meera Devi was conducted at Primary Health Centre, Shergarh, on
27.09.2007 at 11.55 AM by the Medical Board, in which opinion
was given by the medical board that deceased Meera Devi died
due to suffocation leading to asphyxia. The drowning was found to
be ante mortem in nature, however, the viscera was observed for
chemical examination of any common poison. After postmortem,
the dead body of the deceased was handed over to her father-in-
law Kheta Ram vide Ex.P/9 on 27.09.2007 itself for cremation.
The accused appellant was arrested on 03.10.2007 at 05.00 PM
vide arrest memo (Ex.P/10).
After completing the investigation, charge sheet was filed
against the accused appellant for offence under Sections 498A and
306 of IPC in the court of Judicial Magistrate, Balesar, from where
the case was committed to the court of Sessions Judge for trial.
The learned Sessions Judge, Jodhpur thereafter transferred the
case for trial to the court of Addl. Sessions Judge (FT) No.1,
Jodhpur.
The learned trial court after providing opportunity of hearing
framed charges against the accused appellant for offence under
(4 of 11)
[CRLA-891/2008]
Section 498A and 306 IPC and in the alternative under Section
302 IPC but accused appellant denied the charges framed against
him and prayed for trial.
In the trial, statements of 13 prosecution witnesses were
recorded and thereafter statements of accused appellant were
recorded under Section 313 Cr.P.C. in which he said that
accidently Meera Devi slipped in the water tank and died due to
drowning.
The learned trial court granted an opportunity to the
appellant lead evidence in defence and the appellant examined
four defence witnesses viz. DW.1- Bhikharam, DW.2-Kheta Ram
(father of the accused appellant), Dw.-3 Jagdish Prasad and
DW.4- Omaram.
The learned trial court thereafter heard final arguments and
while considering the medical and other oral evidence produced by
the prosecution, vide judgment dated 21.011.2008 proceeded to
convict the accused appellant for offence u/s 302 IPC and
sentenced him for imprisonment for life along with fine of
Rs.5000/-.
While assailing the aforesaid judgment, learned counsel for
the appellant vehemently argued that whole prosecution story is
false and concocted by the complainant for the reason that earlier
the real sister of deceased Meera Devi viz. Smt. Nimbu Devi, who
was married to appellant’s brother Oma Ram, died due to burn
injuries, for which an FIR was registered, but after trial Oma Ram
and other family members were acquitted from the charge of
murder of Nimbu Devi. Further argument of the learned counsel
(5 of 11)
[CRLA-891/2008]
for the appellant is that the day on which the occurrence took
place, the appellant was out of home and incident was reported to
him when he came back. It is further submitted that Meera Devi
committed suicide due to bad behaviour of her in-laws because
they were not calling Meera Devi for last eight years but
complainant gave the colour of incident of suicide to murder. In
fact, there was no demand of dowry so also the relationship of the
accused with his wife Meera Devi were cordial and there was no
dispute in between them, which is proved by him while adducing
evidence of four defence witnesses.
The crux of the argument of learned counsel for the
appellant is that whole prosecution story is fabricated story
because there is no evidence of intention or motive, so also, there
is no evidence on record to prove that any quarrel took place in
between husband and wife. Therefore, the police filed charge
sheet under Section 306 and 498A IPC but the learned trial court
framed charge under Section 302 IPC in alternative while framing
charge u/s 498A and 306 IPC. The contention of the counsel for
the appellant is that incident took place in the back of the
appellant, when he was not present in the house but the trial
court without considering the evidence in proper manner
erroneously convicted the accused appellant for committing
offence under Section 302 of IPC, therefore, the judgment
impugned may kindly be quashed and the accused appellant may
kindly be acquitted from the charges levelled against him under
Section 302 of IPC.
(6 of 11)
[CRLA-891/2008]
Per contra, learned Public Prosecutor vehemently argued
that there is no error in the finding given by the learned trial court
so as to convict the accused appellant for offence u/s 302 IPC
because marriage of two sister viz. Nimbu Devi and Meera Devi
(deceased) was solemnized with two real brothers viz. Oma Ram
and Bhanwra Ram respectively and before four years, Nimbu Devi
died due to burn injuries, therefore, an FIR was registered against
family members of the accused appellant, in which Kheta Ram,
father of the accused appellant as well as Oma Ram and present
appellant, Bhanwra Ram remained in custody for 12 months.
Thereafter their bail application was allowed and ultimately on the
basis of compromise arrived at between the parties, they were
acquitted by the competent court for the charge of committing
murder of Nimbu Devi.
The present incident is second incident, in which daughter of
complainant- Surta Ram died in suspicious condition and after
investigation police filed charge sheet against the accused
appellant u/s 498A and 306 IPC but the learned trial court framed
charges under Section 302 IPC in the alternative apart from
framing charges u/s 498A and 306 IPC. Learned Public Prosecutor
further argued that to prove the prosecution case, reliance
witnesses viz. PW.2 Ram Singh, PW.4 Surta Ram (father of the
deceased), PW.6 Jethu Singh and PW.7 Ghewarchand were
examined and proved the allegation against the appellant. It is
further submitted that in the statements recorded u/s 313 Cr.P.C.
on the one hand appellant stated that at the time of incident he
was not at his home but on the other hand, narrated whole
(7 of 11)
[CRLA-891/2008]
episode while saying that death was caused accidently. Learned
Public Prosecutor further argued that the defence witnesses
categorically stated in their cross-examination that the day on
which the incident took place, the appellant was very much
present in the home but accused appellant in his statements u/s
313 Cr.P.C. stated that he was out of house when incident took
place. Learned Public Prosecutor, therefore, submitted that there
is no strength in the arguments of the learned counsel for the
appellant that trial court has committed any error in holding the
appellant guilty for committing offence under Section 302 IPC.
It is also submitted that although there is no eyewitness of
the incident but the circumstances including medical evidence
loudly speaks that after murdering Meera Devi, her body was
thrown in the water tank to give it a colour of suicide, therefore,
the instant appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have
perused the entire evidence of prosecution as well as defence
available on record.
Upon consideration of entire evidence, in the light of the
arguments advanced, it is admitted position that two daughters of
complainant- Surta Ram (PW.4), namely, Nimbu Devi and Meera
Devi, were married with Oma Ram (appellant’s brother) and
appellant, Bhanwra Ram. It is also not in dispute that Nimbu Devi
sister of deceased Meera Devi also died due to burn injury in her
matrimonial home and for the said incident, a criminal case was
registered against appellant as well as Oma Ram, Kheta Ram and
they remained in custody and after trial due to compromise in
(8 of 11)
[CRLA-891/2008]
between the parties, they were acquitted from the charge under
Section 302 IPC for murder of Nimbu Devi.
We have perused the statements of complainant- Surta Ram
(PW.4) in which he has categorically averred that marriage of his
two daughters was solemnized with Bhanwra Ram (appellant) and
Oma Ram, both sons of Kheta Ram ten years back. The father-in-
law, mother-in-law and husband Nimbu Devi, harassed her and
even did not allow Meera Devi and Nimbu Devi to visit their
parents’ house and later on Nimbu Devi was murdered by them
and for that incident, a criminal case was registered but after trial
Oma Ram and other family members were acquitted. With regard
to behaviour of Meera Devi, it is stated by PW.4 that for less
dowry, the appellant and his family members used to beat her and
some time when he went to the house of his daughter, they even
refused to allow Meera Devi to meet him. PW.4 further stated that
efforts were made by him to bring his daughter Meera Devi to his
home, but family members were not allowing to meet Meera Devi,
therefore, it is obvious that appellant and his family members
were harassing Meera Devi like anything.
The witness PW.4- Surta Ram categorically stated in his
statement that after receiving information with regard to death of
Meera Devi when enquiry was made by him, then on satisfactory
answer was given by the appellant and his family members and
upon inspection of body of Meera Devi, there were number of
injuries on the body of his daughter.
After perusing the statement of PW.4, we have perused the
statement of doctors PW.10- Dr. Ganpat Singh Purohit and PW.12
(9 of 11)
[CRLA-891/2008]
Dr. Vijay Laxmi. Both these doctors categorically stated that there
were four injuries on the body of the deceased and those injuries
were ante mortem in nature.
PW.10 Dr. Ganjat Singh Purohit, gave statement that it is
case of drowning after causing death. PW.10 gave following
statement, which reads as under:
” iV
s [kky
s us ij fYyh] ijs hVkfs u;e] yhoj] fLifyu] fdMuh] CyMs j]
LoLFk FkAs iztuu vxa LoLFk Fk]s xHkkZ”k; eas dkbs Z cPpk ugha FkkA mlds iVs
ds vna j dNq [kkuk Fkk[ vkra ks ds vUnj v/kipk [kkuk FkkA cMh+ vkra o
eyk”k; eas ey FkkA
ckMs Z dh jk; eas e`rdk ehjk nos h dh ekSr dk dkj.k ne ?kqVus ls
gqbAZ er` dk dks ekjus ds fQj dgk ejus ds ckn eas ikuh eas Mcw h gqbZ FkhA
a ds fy, foljk ijh{k.k grs q fy;s x;As “
fdlh rjg ds tgj dh tkp
Similarly, PW.12 Dr. Vijay Laxmi, gave following statement
with regard to cause of death, which reads as under:
“e`rdk ds “kjhj ij e`R;q iow Z dh fuEufyf[kr pkVs as ik;h x;hA
1- uhyxw nkfguh vk[a kk ds mijh fgLls ij ijw s fgLls ijA
2- [kjkp
as 8 les h [kMh+ ukd ij nkfguh rjQA
3- uhyxw 2 x1 les h lt
w u ds lkFk xys ds mijh fgLls ij nkfgus vkjs A
as 3 x -7 les h frjNh lhus ds uhps ds fgLls ij nkfguh vkjs FkhA
4- [kjkp
mDr lHkh pkVas s e`R;q iow Z dh FkhA ikLs VekVZe ds nkSjku ejs s lkFk MkW
x.kiflga iqjkfs gr lkFkh fpfdRld o ckMs Z ds p;s jeus FkAs gekjh jk; eas
e`rdk ehjk dh ekSr ne ?kqVus ls gqbZ Fkh o mlds e`R;q ckn “ko Mqck FkkA”
In view of above evidence, there is no question to discard
the finding of learned trial court recorded against the accused
appellant for commission of offence. We have also perused the
statement of accused appellant recorded u/s 313 Cr.P.C., in which
following explanation is given, which reads as under:
(10 of 11)
[CRLA-891/2008]“?kVuk ds jkt
s eSa ckgj xkMh+ yd s j x;k gqvk FkkA ejs h ifRu ?kVuk
dh lqcg xkoa eas ls xkscj feVV~ h ykd s j ?kVuk LFky okys Vkd a s l s i ku h
ykdj vius ?kj eas fuikbZ ikrs kbZ dh Fkh rFkk iqu% Vkd
a s ij ikuh yus s tkus
ij ikuh yrs s le; iSj fQlyus ls nq?kZVuko”k e`R;q gq;h gSA eSua s ejs h ifRu
dks dHkh rxa ;k ij”s kku ekjihV ugha dh FkhA eSa funkZs’k g]aw iqfyl us Bw k
eqdnek fd;k gAS “
We have also perused the statements of DW.-1 Bhikha Ram,
DW.2 Kheta Ram (father of the accused appellant), DW.3- Jagdish
Prasad and DW.4- Omaram. All these witnesses have categorically
stated that accused appellant Bhanwra Ram was very much
present in the house on the date of incident but in the explanation
given under Section 313 Cr.PC., it is stated by appellant that on
the date of incident, he was out of home but his own witnesses
have stated before the court that he was very much in the house
when incident took place.
We have also perused the finding of learned trial court
holding the accused appellant guilty. The learned trial court relied
upon the testimony of doctors PW.10 and PW.12 in which it is
specifically stated by them that it is not a case of suicide and it is
a case in which after causing murder, the dead body of the
deceased was thrown in the water tank. In our opinion, the
learned trial court has minutely examined the entire evidence and
has rightly recorded the finding of guilt against the accused
appellant on the basis of evidence on record.
It is also necessary to observe that a dishonest plea was
taken by the appellant in his statements recorded under Section
313 Cr.P.C. that he was not at the home on the date of incident,
whereas it is established from the evidence of defence witnesses
(11 of 11)
[CRLA-891/2008]
produced by him that accused appellant was very much in the
house on the date of occurrence. It is admitted fact of this case
that that both the daughters of the complainant Surta Ram, viz.
Nimbu Devi and Meera Devi were married with Omaram and
Bhanwra Ram (appellant) sons of Kheta Ram, and prior to the
present incident, Nimbu Devi died due to burn injuries in her in-
laws’ house. For the said incident, a criminal case was registered
and Omaram husband of Smt. Nimbu Devi and other family
members were arrested but acquitted after due trial, and again
second incident of death of Smt. Meera Devi, daughter of
complainant, took place in the house of the accused appellant. The
above fact and evidence of this case loudly speak that no error
has been committed by the learned trial court so as to convict the
accused appellant for offence under Section 302 of IPC.
Accordingly and in view of above discussion, the present
criminal appeal filed by the accused appellant is found to be
devoid of any force and the same is hereby dismissed.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.
DJ/-
27