HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 913/2011

Mukh Ram S/o Shri Surja Ram by caste Jat, resident of village
Bandhnau Dikhnada, Tehsil Sardarshahar, district Churu.

(Presently lodged in Central Jail Bikaner)

—-Appellant
Versus
State of Rajasthan.

—-Respondent

For Appellant(s) : Mr.Nishant Bora
Mr.Kanishk Singhvi
For Respondent(s) : Mr.C.S.Ojha, PP

HON’BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

10/01/2019

1. The process of criminal law was set into motion when

Lichhman Ram, PW-1 father of the deceased reached Police

Station Sardarshahar and lodged a written report Ex.P-1 at 1.00

PM on 27.08.2009 informing that his daughter was married with

the appellant. After marriage whenever she came to her parental

house she would inform that she was being troubled by her

husband and his parents for dowry. Today morning one Manphool

Ram son of Phusaram informed him over the telephone that

daughter’s husband and her in-laws had murdered his daughter.

In the company of 6-7 villagers he reached the residence of his

daughter. He saw her dead body in the courtyard. The villagers
(2 of 5) [CRLA-913/2011]

informed him that his daughter had been murdered by her in-

laws.

2. Based on the written information FIR Ex.P-2 for offences

punishable under Section 498A/302 IPC was registered.

3. Investigation was taken over by Suresh Chandra PW-11,

SHO of the Police Station. He reached the scene of the crime.

Dead body was seized and was sent for post mortem. Dr.Rajesh

Kumar Gupta PW-8 conducted the post mortem and authored the

report Ex.P-10 recording therein that there was a contusion below

the right eye; a contusion on the pinna of the right ear; a

contusion on the right side of the forehead; and ligature marks

around the neck. These were the external injuries. Internal

examination revealed fracture of the thyroid cartilage. Cause of

death was opined to be asphyxia due to strangulation.

4. Statements of PW-2 to PW-7 who had accompanied PW-1 to

the residence of the deceased were recorded by the investigating

officer under Section 161 Cr.P.C. Statements of one Birbal and

Ramlal were also recorded under Section 161 Cr.P.C.

5. The appellant and his parents were arrested. The appellant

got recovered a Gamchha which the prosecution claims was the

ligature material.

6. FSL report Ex.P-17 was obtained, as per which the blood of

group ‘B’ was detected. The lehanga worn by the deceased also

was detected with blood of the same group.

7. The appellant and his parents were sent for trial for offences

punishable under Section 498A and 302 IPC.

8. Evidence led by the prosecution failed to establish presence

of appellant’s parents in the house when appellant’s wife suffered

a homicidal death. The testimony of PW1 to PW7 established
(3 of 5) [CRLA-913/2011]

appellant’s presence in the house. The testimony of PW1 to the

effect that the appellant demanded ₹20,000/- two times from him

to purchase a tractor was opined to be not a dowry demand.

9. Vide impugned decision dated 11.10.2011 the appellant has

been convicted for the offence punishable under Section 302 IPC.

His parents have been acquitted. Sentence imposed is to undergo

imprisonment for life. The appellant and his parents have been

acquitted for the offence punishable under Section 498A IPC.

10. Conviction is sustained on proof of the appellant being

present in the house when his wife died and he rendering no

explanation as to how his wife died. Extra-judicial confession

deposed to through the mouth of PW1, PW4 and PW5. Recovery of

Gamchha pursuant to the disclosure statement made by the

appellant on which blood of the same group as that of the

deceased was detected.

11. We have perused the testimony of PW1, PW4 and PW5 and

find that as recorded in the written report Ex.P-1 when PW-1 went

to the house of his daughter accompanied by 6-7 person, two of

whom were PW4 and PW5, the appellant was in the house. The

dead body of his wife was lying in the courtyard. The question as

to how his wife died the appellant confessed to have strangulated

her with a Gamchha.

12. Unfortunately for the appellant this part of the testimony of

the witnesses has not been challenged through cross-examination.

13. On the issue of appellant’s presence in the house and he

rendering no satisfactory explanation as to how his wife died,

counsel urges that from the testimony of the investigating officer

PW-11 it emerges that Ramlal and Birbal were also present in the

house when the deceased died.

(4 of 5) [CRLA-913/2011]

14. Indeed, PW11, the investigating officer has admitted during

cross-examination that investigation conducted by him revealed

that Ramlal and Birbal were also present in the house.

15. The charge-sheet filed shows that both of them were cited as

witnesses but unfortunately, were dropped by the prosecution.

16. The statement of the two persons under Section 161 Cr.P.C.

is to the effect that when the appellant saw his wife talking with

Birbal he got infuriated and in anger strangulated his wife.

17. Learned counsel for the appellant argues that the onus of a

husband to explain the death of his wife upon proof that the

husband was present in the house is only when it is proved that

the husband alone was in the house. Counsel states that as per

the prosecution not only the husband but even Birbal and Ramlal

were present in the house.

18. Now, it assumes importance to note that lapse by the

prosecution to examine Birbal and Ramlal is being used by the

appellant in the appeal, over-looking the fact that the death being

homicidal and when the death took place the appellant, Ramlal

and Birbal were present, if either Ramlal or Birbal have assaulted

appellant’s wife his conduct would have been to save his wife and

not keep quiet.

19. It is settled law that if there is cogent evidence otherwise

sustained the verdict of guilt lapses by the prosecution have to be

over-looked.

20. Notwithstanding the case of the prosecution being that apart

from the appellant, Ramlal and Birbal were present in the house

when appellant’s wife was strangulated and cited the two as

witnesses, the two not being examined as witnesses, does not
(5 of 5) [CRLA-913/2011]

relieve the appellant with the obligation to explain the

circumstances under which the wife was strangulated.

21. The post mortem report of the deceased and the testimony

of Dr.Rajesh Kumar Gupta is to the effect that deceased was in

menstruation when she was murdered. Therefrom counsel argues

that the presence of the blood of the deceased on the Gamchha

can be attributed to she being in menstruation.

22. Even if we were to remove the incriminating evidence of

Gamchha got recovered by the appellant being detected with a

human blood of the same group as that of his wife, we have two

stellar evidence to incriminate the appellant. The first is the extra-

judicial confession made by the appellant who obviously would be

questioned by his father-in-law and other people accompanying

him to explain how his wife died. Being homicidal death and he

being present in the house the appellant had no option but to

confess his crime.

23. The second piece of evidence is the admitted presence of the

appellant in the house albeit alongwith Birbal and Ramlal but the

appellant does not claim that either of the two together murdered

his wife. Had the two murdered appellant’s wife in the presence of

the appellant his conduct would have been to try and save his

wife.

24. We find no merit in the appeal which is dismissed. Impugned

judgment and sentence are affirmed.

(MANOJ KUMAR GARG),J (PRADEEP NANDRAJOG),CJ

3-Parmar/-

Powered by TCPDF (www.tcpdf.org)