HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1150/2015

Sharvan Ram S/o Shri Champaram, by caste Nayak, R/o Tadwas,
Police Station Khinvsar District Nagaur
—-Appellant
Versus
State of Rajasthan.
—-Respondent

For Appellant(s) : Mr.Mukesh Mehriya
For Respondent(s) : Mr.J.P.S.Choudhary, PP

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

DATE OF PRONOUNCEMENT : 15/02/2019

(By the Court : Per Mehta, J.)

REPORTABLE

The appellant stands convicted and sentenced as below vide

the judgment dated 30.09.2015 passed by learned Addl. Sessions

Judge No.2, Nagaur in Sessions Case No.50/15 (189/11) (55/14).

304-B IPC Life Imprisonment
498-A IPC Two Years’ SI and fine of Rs.10,000/-, in
default of payment of fine to further undergo
three months’ SI.
201 IPC Two Years’ SI and fine of Rs.10,000/-, in
default of payment of fine to further undergo
three months’ SI.

All sentences were ordered to run concurrently.

(2 of 20) [CRLA-1150/2015]

Being aggrieved of his conviction and sentences, he has

preferred the instant appeal under Section 374 (2) Cr.P.C. The

facts relevant and essential for disposal of the instant appeal, are

noted hereinbelow.

Facts in brief:

The appellant herein was married with the deceased Samdu

in August, 2011. Smt. Samdu had gone to her father’s house

(Nathuram, complainant) on the occasion of Rakhi. She went

missing upon which Shri Nathuram lodged a Missing Person Report

(‘MPR’) (Ex.D/1) on 28.08.2011 at Police Station Khinvsar inter

alia alleging that on 26.08.2011 in the evening at 7:30, while he

and his family members were taking dinner, Samdu went out from

the home without informing anyone and was missing thereafter.

She had been married to Shri Sharvan Ram S/o Shri Champaram

by Caste Nayak and had been going to her matrimonial home for

the last two years. She had a mobile phone bearing

No.8890432039. Soon before her disappearance, she was

overheard talking to someone with this phone. Thereafter, she

secretly went out of the house. After Samdu went missing, the

complainant and the members of his family made inquiries with

various paternal relatives as well as her matrimonial relatives but

there was no clue of her whereabouts. On 27.08.2011 also, the

first informant continued to search for Samdu but he could not

succeed. It was categorically mentioned in the report that Samdu

was having no dispute with anyone either in the matrimonial home

or at her Pihar. The statement of Nathuram was recorded in

connection with the MPR on 28.08.2011 itself wherein he verbatim

repeated the averments made in the MPR. However, Samdu could

not be traced out for about ten days.

(3 of 20) [CRLA-1150/2015]

Shri Nathuram lodged a detailed report with the SHO PS

Khinvsar on 05.09.2011 alleging therein that Samdu had been

married to Shri Sharvan Ram S/o Shri Champa Ram (the appellant

herein) about two and half years ago. The informant had given

significant dowry in the marriage as per his capability. However,

whenever Samdu came to his house after the marriage, she

complained that her husband was threatening to kill her on

account of demand of dowry and was sniding that he would re-

marry. Samdu came to his house on the occasion of Rakhi. On

26.08.2011 at about 8 to 9 PM, her husband Sharvan Ram came

outside his house and called Samdu on her phone. Smt. Samdu

intimated her mother that her husband was calling and thereafter

she left the house but did not return. They made search for her

whereabouts. On the next morning, they went to Tadwas and

made an inquiry from Sharvan Ram who admitted that Samdu had

accompanied him to Tadwas on the previous night but thereafter

she sneaked away surreptitiously. When Samdu could not be

traced out despite all efforts, the first informant alongwith

PW-3 Arjunram, PW-5 Jagram and PW-6 Paburam, confronted

Sharvan Ram under the oath of God, upon which he confessed

that he and his four-five friends conspired together and had

murdered Samdu. The informant alleged in the report that these

facts could be verified from the call details and that requisite

action should be taken against Sharvan Ram and his companions.

On the basis of this complaint, an FIR No.135/2011 was registered

at Police Station Khinvsar for offences under Sections 498A, 406,

304B and 201 IPC. The investigation was assigned to the CO,

SC/ST Cell, Nagaur because the case involved the disappearance

and suspected dowry death of a girl belonging to SC community.

(4 of 20) [CRLA-1150/2015]

The CO recorded the statement of Nathuram under Section 161

CrPC on 05.09.2011 itself wherein Nathuram repeated allegations

levelled in the FIR and additionally stated that his daughter’s

Muklawa was held two years ago and whenever she came to the

parental home, she would complain of maltreatment by the

husband owing to demand of money etc. She also complained that

her husband used to threaten her that she would be killed and he

would re-marry. It was further alleged in the statement that when

the informant, Paburam, Arjun Ram and Jagram questioned

Sharvan Ram streneously and put him under oath, he broke down

and confessed that he had throttled Samdu to death and disposed

off her dead body by throwing it in the water tank. The statements

of Arjun Ram Budharam were recorded by the Dy.SP, SC/ST

Cell, Nagaur on 06.09.2011 wherein they alleged that on

04.09.2011 four of them (Arjun Ram, Pabu Ram, Jagram and

Nathu Ram) met and confronted Sharvan Ram at Nagaur. They put

him under the oath of God and Ramdevji and asked him the truth

of the matter on which Sharvan Ram confessed that Samdu was

not to his liking. He wanted to get rid of her and thus, he took her

from Ahmedupra to Dodiyana Phanta on a motorcycle and after

having throttled her to death behind the old temple, he threw the

dead body in the water tank nearby. The Investigating officer

proceeded to arrest the accused appellant on 05.09.2011 at 12:30

pm vide arrest memo Ex.P/13. It is alleged that the accused gave

a voluntary information at 12:45 pm to the IO under Section 27 of

the Indian Evidence Act which was recorded in memorandum

Ex.P/21, in which the accused allegedly conveyed to the

Investigating Officer that he had killed his wife on 26.08.2011 in

the evening and had disposed of the dead body in a water tank
(5 of 20) [CRLA-1150/2015]

behind the old temple near the Dodiyal Phanta and that he could

get the same recovered. The IO thereafter proceeded to Dodiyal

Phanta and allegedly got recovered the decomposed dead body of

a female which was identified by Shri Nathuram to be that of

Samdu. Significantly enough, the IO did not prepare any recovery

memo of the dead body but mentioned the details of recovery in

the Fard Surathal Lash (Ex.P/3). Be that as it may. After the dead

body had been recovered, the IO proceeded to record yet another

information of the accused under Section 27 of the Evidence Act

(Ex.P/22) and recovered a pair of Payzeb alleged to be of

deceased Samdu. Based on these links of circumstantial and the

so-called direct evidence collected during investigation, a charge

sheet was filed against the accused appellant before the

Magistrate concerned for the offences under Sections 498A, 304B

IPC in the alternative 302 and 201 of IPC.

Since the offences were sessions triable, the case was

committed to the Addl. Sessions Judge, Nagaur who framed

charges against the accused appellant for these offences. The

accused pleaded not guilty and claimed trial. The prosecution

examined as many as 14 witnesses in support of its case. In his

statement recorded under Section 313 Cr.P.C., the accused was

confronted with the circumstances appearing in the prosecution

evidence. He denied the same and claimed to be innocent.

However, no evidence was led in defence. After appreciating the

submissions advanced at bar and evaluating and sifting the

evidence available on record, the trial court proceeded to pass the

impugned judgment dated 30.09.2015 wherein apparently, no

finding was recorded on the charge framed against the accused for

offence under Section 302 IPC but at the same time, the trial
(6 of 20) [CRLA-1150/2015]

court proceeded to convict the accused appellant for the offences

under Sections 498A, 304B and 201 IPC and sentenced him as

above. Being aggrieved of the above judgment, the accused

appellant has preferred the instant appeal.

Learned Counsel Shri Mukesh Mehriya representing the

appellant vehemently and fervently contended that there hardly

was evidence worth the name on the record of the case so as to to

connect the appellant with the unnatural homicidal death of Smt.

Samdu. He urged that the Missing Person Report which was

lodged soon after Samdu went untraceable, provides strongest

proof regarding the innocence of the accused appellant. He

contended that Smt. Samdu disappeared on the evening of

26.08.2011 while she was at her father’s house. The Missing

Person Report was lodged by Nathu Ram on 27.08.2011. As per

Shri Mehriya, had Smt. Samdu ever made any complaint of

misbehaviour on account of demand of dowry or for any other

reason against the appellant, her father Nathu Ram would not

have given an affirmative clean chit to the appellant while lodging

the MPR. He drew the Court’s attention towards the written

complaint Ex.P/2 lodged by Shri Nathu Ram on 05.09.2011 and

urged that in such a complaint also which was lodged after the

appellant allegedly made an extrajudicial confession, there is no

such aspersion that MPR in exculpatory terms was instigated by

the appellant herein. He contended that ex-facie, the proceedings

of recovery of dead body of Samdu allegedly made at the instance

of the accused by Gopalram Ramawat, CO Nagaur being the IO of

the case are totally fabricated and concocted. In this regard, he

drew the court’s attention to the statements of the witnesses PW-

(7 of 20) [CRLA-1150/2015]

2 Nathuram, PW-3 Arjun Ram and PW-8 Budharam and urged that

from the evidence of these witnesses, it is clearly elicited that the

accused made a confession upon being pressurized by the police

officials disclosing whereabouts of the dead body on 04.09.2011

itself in presence of these witnesses and the police officials and

thus, the fact as to where the dead body was lying, was definitely

in the knowledge of the Investigating Officer. Thus, as per Shri

Mehriya, proceeding involving recovery of the dead body made at

the instance of the accused appellant are fabricated and tainted.

He contended that the theory putforth by the prosecution

witnesses regarding the alleged demand of dowry and harassment

meted out on that account by the accused appellant to the

deceased is totally false and fabricated. He took us through the

statement of PW-2 Nathuram, the father of the girl in which he

admitted that Samdu never complained to him that she had been

maltreated in her matrimonial home and admitted that all

complaints in this regard had been made by the girl to her mother.

He also referred to the statement of the girl’s mother Smt. Munni

Devi (PW/7) wherein no particular/specific allegations have been

attributed to the appellant regarding the items demanded by the

appellant from Samdu as dowry or otherwise. As per Shri Mehriya,

the IO Shri Gopa Ramawat intentionally did not place on record

the call details of the mobile phone held by the deceased whereby

the identity of the actual offender could have been pinpointed. As

per him, these call details were the prime evidence required to

establish and clinch the identity of the person with whom Samdu

had gone away. As per him, even the first informant gave much

significance to this mobile conversation while filing the report and

in his deposition as well claiming that the same were vital to find
(8 of 20) [CRLA-1150/2015]

out the offender. As per him, the intentional omission of the

Investigating Officer/Proseuction in failing to bring on record

these call details is fatal to the prosecution case. He further urged

that the trial court did not hold the appellant guilty for the charge

under Section 302 IPC. As per him, there is no evidence

whatsoever on the record of the case to satisfy the Court beyond

all shadows of doubt that the appellant herein harassed or

maltreated the deceased Samdu on account of demand of dowry

soon before her death and thus, as per him, conviction of the

appellant for the offence under Section 304B IPC cannot be

sustained. On these grounds, he implored the Court to accept the

appeal and set aside the appellant’s conviction while over-turning

the impugned judgment.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced at bar by appellant’s

Counsel. He urged that the Missing Person Report was

undoubtedly instigated and drafted at the instance of appellant in

such a manner so that the finger of suspicion would be diverted

from him. He further urged that once the prosecution was able to

prove and establish that the appellant was the person who

disposed of the dead body of Smt. Samdu in the water tank, the

burden to prove and explain as to how the dead body with distinct

marks of violent death by throttling came to be in the water tank,

shifted on to the appellant. The appellant miserably failed to

discharge this burden and thus, as per him, he is liable to be held

guilty for the charge of murder punishable under Section 302 IPC

by raising the presumptions available under Sections 106 and 114

of the Evidence Act. He relied upon the Division Bench judgment
(9 of 20) [CRLA-1150/2015]

in the case of Sher Singh vs State of Rajasthan (D.B.Criminal

Appeal No.1134/2009 decided on 01.09.2016) and urged that

since an alternate charge under Section 302 IPC was framed

against the accused appellant by the trial court; the prosecution

witnesses gave positive evidence in support of the charge and

since the accused while being questioned under Section 313

Cr.P.C.; was confronted with all such circumstances appearing

against him in the prosecution case, manifestly, he understood the

same without any ambiguity and hence, this Court is empowered

to exercise jurisdiction conferred upon it by Section 386 IPC and

record conviction of the appellant for the appropriate charge i.e.,

Section 302 IPC. He thus implored the Court to dismiss the appeal

with this modification in the impugned judgment.

We have given our thoughtful consideration to the

submissions advanced at bar and have perused the impugned

judgment and have threadbare sifted through the evidence

available on record.

The following facts are admitted from the prosecution

evidence and do not require any further deliberation or

re-appreciation:-

1. That marriage of deceased Samdu with the appellant

Sharvan Ram was solemnized about two and half years before the

incident.

2. That the deceased Samdu was at her father’s house at the

fateful day as she had come there on the occasion of Rakhi
(10 of 20) [CRLA-1150/2015]

3. That Smt. Samdu was carrying a mobile phone bearing

No.8890432039 with her.

4. That she had a conversation with someone before she went

away from her father’s house in the late hours of 26.08.2011. The

prosecution/investigation agency failed to bring on record the

corresponding call details.

5. That the MPR (Ex.D/1) was lodged by Shri Nathuram wherein

there is positive assertion that the deceased was never harassed

at the matrimonial home for any reason whatsoever.

6. That the accused allegedly made an extrajudicial confession

in presence of Nathuram, Arjunram, Budhram and Jagram on

04.09.2011 i.e., well before the FIR (Ex.P/2) came to be lodged

by Shri Nathuram at PS Khinvsar. In such confession, he divulged

that he had disposed of the dead body of Samdu in the water tank

behind the temple.

7. Despite this disclosure, the close family members made no

efforts to recover the body.

Having noted the significant uncontroverted facts of the case

in the above terms, we now proceed to appreciate the evidence of

prosecution witnesses.

PW-2 Nathuram claimed in his testimony that he had given

dowry as per his capability during the marriage of Samdu with the

appellant. The witness stated that whenever Samdu came to his

house, she would complain that her husband used to insinuate

that he would kill her. He however, conceded in cross-examination

that the complaints regarding the alleged demand of dowry were

made by Samdu not to him but to her mother Smt. Munni Devi
(11 of 20) [CRLA-1150/2015]

(PW-7). On the fateful day i.e. 26.08.2011, the appellant allegedly

came outside his house and called Samdu on her phone. Smt.

Samdu told her mother that her husband was calling her and

thereafter she left the house. The witness admitted in his

cross-examination that he did not see the accused appellant

Sharvan Ram outside his house on that day. In this context, the

evidence of PW-7 Smt. Munni Devi, being the mother of the girl is

very relevant. In her statement, the witness claimed that the

accused called Samdu out of the house who told her that she was

going out and would return shortly. The witness did not pay much

heed thinking that her daughter had gone with her husband.

However, if the version of these witnesses is tested on the anvil of

the Missing Person report (Ex.D/2) it becomes clear that in this

report, there is a categoric disclosure that Samdu had a mobile

conversation with some unknown person and then went away

secretly. There is a clear statement in the missing person report

that Samdu was never harassed or humiliated in the matrimonial

home on any account whatsoever.

Though of-course, Nathu Ram has tried to portray that the

MPR was instituted in a particular manner at the instance of

accused appellant but we do not feel inclined to accept the said

allegation. There is strong reason for coming to this conclusion.

Had there been an iota of truth in this allegation of Shri Nathu

Ram that the MPR was stage-managed by the accused appellant

then he would definitely have mentioned this fact while drafting

the FIR (Ex.P/2) which was filed as late as on 05.09.2011.

(12 of 20) [CRLA-1150/2015]

As per the admitted prosecution case, the accused had made

the extra-judicial confession on 04.09.2011 in presence of Nathu

Ram/PW.3, Arjun Ram/P.W.4, Jagram/P.W.6 and Budhram/P.W.9,

that he had killed Smt. Samdu and disposed of the dead body in

the water tank. Thus, the omission of this important fact in the

FIR (Ex.P/2) that the MPR (Ex.D/2) was drafted in a particular

manner at the instance of the accused appellant so that he could

avoid bringing suspicion from himself is not far too significant so

as to be over-looked.

It is also an admitted case of prosecution that the deceased

was having a mobile phone with her, number whereof was

mentioned in the MPR. Thus, the the best evidence to support this

allegation would have been to collect the call details of the mobile

phone held by the deceased Smt. Samdu. In backdrop of these

facts, the significant omission in the FIR (Ex.P/2) regarding the

fact that the MPR was stage managed by the accused makes the

aspersion cast to this effect by Shri Nathu Ram in his sworn

testimony totally unacceptable and unworthy of credence.

As we have concluded that the evidence of the prosecution

witnesses regarding the accused having managed the MPR is

unacceptable and since the call details of the mobile phone in use

of the deceased were deliberately withheld by the prosecution, the

allegation of the prosecution witnesses i.e. PW-2 Nathu Ram and

PW-7 Smt. Munni Devi that the appellant called Samdu out of their

house and took her on the fateful day away i.e,. 26.08.2011 is

remained unproved and cannot be believed. Consequently, the

circumstance relied upon by the prosecution that the accused
(13 of 20) [CRLA-1150/2015]

appellant was last seen in the company of the deceased before her

death as set up in the evidence of these two witnesses is

demolished in its entirety. If at all the prosecution was desirous of

using this circumstance against the appellant, then, it was

incumbent upon the Investigating Officer to have collected and

exhibited call details of the mobile phone held by the deceased

and the accused which could have provided some kind of

corroboration to the apparently flimsy prosecution theory.

Once, the circumstance of last seen is taken out from the

zone of consideration, the remaining circumstances which the

prosecution can bank upon to seek affirmation of the impugned

judgment are

(a) those of demand of dowry allegedly made by the accused

from the deceased soon before her death

(b) that the appellant made an extra-judicial confession in

presence of Arjun Ram, Pabu Ram, Jagram and Natu Ram on

04.09.2011 and

(c) that the dead body of Smt. Samdu was recovered at the

instance of the accused in furtherance of information supplied by

him to the IO under Section 27 of the Evidence Act.

In this regard, we have taken into account the entirety of the

facts and circumstances as appearing in the testimony of the

concerned witnesses. Apparently PW-2 Nathu Ram (being the

father of the deceased) washed his hands off the allegation of

demand of dowry by admitting that the complaint of the

harassment on account of demand of dowry was invariably

conveyed by the deceased to her mother. PW-7 Smt. Munni Devi
(14 of 20) [CRLA-1150/2015]

mother of the deceased, no doubt alleged in her testimony that

the deceased complained to her that the accused was demanding

dowry and that she was being harassed and humiliated in the

matrimonial home. However, the prosecution has also set up a

positive case that the accused used to express his disliking for the

deceased and was threatening that he would leave her and

re-marry. Manifestly, these two aspersions cast upon the accused

appellant, are self-contradictory and totally divergent. If at all, the

accused had such a strong disliking for the deceased Smt Samdu

that he wanted to leave her and remarry then, there was no

reason for him to harass her on account of demand of dowry.

Furthermore, none of the prosecution witnesses including PW-7

Smt. Munni Devi elaborated in their evidence as to specific nature

of demand/demands allegedly made by the accused from the

deceased and nor did they state in so many words that the

demands were made soon before the death of Smt. Samdu. In

this background, we feel that the aspersion cast by prosecution in

its evidence that the deceased was harassed and humiliated by

the accused appellant on account of demand of dowry soon before

her death falls flat on its face and is unacceptable.

The remaining two circumstances upon which the

prosecution relies strongly in its endeavour to prove the charge

against the appellant are twofold; firstly that the accused made an

extra judicial confession in presence of Nathu Ram, Arjun Ram,

Budhram and Jagram a day before lodging of the FIR admitting

that he had murdered the deceased Smt.Samdu. The other

circumstance is that of alleged recovery of the dead body from the

water bank in furtherance of the information supplied by the
(15 of 20) [CRLA-1150/2015]

accused to the Investigating Officer under Section 27 of the

Evidence Act. From the statements of Nathu Ram/PW.3, Arjun

Ram/P.W.4, Jagram/PW.6 and Budhram/P.W.3, it emerges that the

accused was subjected to stringent questioning after putting him

under the oath of God and Ramdevji a day before lodging of the

F.I.R. whereupon he blurted out that he had killed Smt.Samdu and

had thrown the dead body in the water tank. If at all, this theory

is to be accepted, then manifestly, there was no reason for Nathu

Ram not to have mentioned in the F.I.R. that the dead body was

lying in the water tank. For our satisfaction, we have read the

investigational statements of Arjun Ram and Budhram from a

perusal whereof, it is revealed that while making the extra judicial

confession, the accused also categorically stated that he throttled

Smt.Samdu and then disposed of the dead body by throwing it in

the water tank behind the old temple at the Dodiyala Fanta.

Manifestly, if the extra judicial confession was so elaborate, then

there was no reason for Nathu Ram to conceal the whereabouts of

the dead body while presenting the F.I.R. to the Investigating

Officer or not to take the police to the said place immediately. It is

thus clear that the F.I.R. Ex.P19 was stage-managed in such a

manner so that the Investigating Officer could subsequently

recover the dead body by extracting an information from the

accused under Section 27 of the Evidence Act and showcase that

the recovery was made exclusively at the instance of the accused.

Therefore, we feel that if the theory of extra judicial confession

carries even the minimal credibility, then the circumstance of

recovery of dead body made by the IO in furtherance of the

information supplied by the accused to him under Section 27 of

Evidence Act becomes highly doubtful. Furthermore, from a
(16 of 20) [CRLA-1150/2015]

perusal of the statement of IO Shri Gopal Ramawat/IO, it is

elicited that while deposing the about the information supplied by

the accused to him under Section 27 of the Evidence Act, he

stated as below:-

“eqyfte Jo.kjke dks tfj;s QnZ izn’kZ ih 13 ds ckn rIrh’k fxjQ~rkj fd;k

ftl ij , ls ch vtqZujke] lh ls Mh Jo.kjke] bZ ls ,Q esjs gLrk{kj gS ,Dl LFkku ij

jkepUnz dh vaxqBk fu’kkuh gSA tsj fgjklr eqyfte us /kkjk 27 ds rgr~ bryk nh fd esjh

iRuh fd yk’k ftl Vkads esa gS oks pydj cjken djok ldrk g¡w tks bryk izn’kZ ih 21 gS

ftu ij , ls ch Jo.kjke lh ls Mh esjs gLrk{kj gSA ”

Thus, there is no disclosure about the place where the dead

body was hidden in the intimation provided by the accused to the

Investigating Officer.

Admittedly, the IO failed to prepare the recovery memo after

the alleged recovery of the dead body and instead mentioned the

factum of recovery in the Fard (Ex.P/1) which again brings the

circumstance of recovery of dead body under a grave cloud of

doubt and we are convinced that the entire exercise of recovery of

Samdu’s dead body allegedly made by the IO at the instance of

the accused appellant is a fabricated one and that he was well

aware of the whereabouts of the dead body even before the FIR

was lodged. Thus, we are of the firm opinion that the proceedings

whereby the Investigating Officer claims to have drawn up the

information of the accused under Section 27 of the Evidence Act

and recovered the dead body in furtherance thereof are totally

concocted and fabricated. It is a well settled proposition of law

that for proving the information received from the accused under
(17 of 20) [CRLA-1150/2015]

Section 27 of the Evidence Act, the Investigating Officer has to

depose the exact words submitted by the accused and failure to

do so would make the evidence about the disclosure statement

doubtful. Having perused the relevant documents, we have no

hesitation in holding that the investigating officer Gopal

Ramawat/PW-14 did not narrate the exact words allegedly stated

by the accused in the information under Section 27 of Evidence

Act. Manifestly, the same cannot be used as an incriminating piece

of evidence against the accused.

That apart we find that the charge under Section 302 IPC

was framed against the accused by the trial court and the

prosecution evidence was also tending to prove the guilt of the

accused for the charge of offence of murder alongwith the charge

of dowry death but the trial court while concluding the judgment

did not record any finding on the charge under Section 302 IPC

and instead convicted and sentenced the accused imprisonment

for life for offence under Section 304-B IPC. Even if the evidence

of Smt. Munni Devi who is the sole witness examined by the

prosecution regarding the allegation of demand of dowry made

from the deceased is considered, manifestly, even in the

statement of this witness, the allegations of demand of dowry are

far from convincing and thus, the charge for the offence under

Section 304-B IPC attributed to the accused cannot be sustained.

Having repelled the claim of the prosecution that the dead

body was recovered in furtherance of the information supplied by

the accused to the Investigating Officer under Section 27 of the
(18 of 20) [CRLA-1150/2015]

Evidence Act, we now propose to deal with the circumstance of

extra judicial confession allegedly made by the accused in

presence of Nathu Ram PW.2, Arjun Ram P.W.4, Jagram P.W.6 and

Budhram P.W.8. We feel that from the tenor of the evidence of

these witnesses, an element of pressure/coercion is writ large on

the face of the record in the extra judicial confession allegedly

extracted from the accused by these witnesses a day before

lodging of the F.I.R. Furthermore, the divergence in the exact

language spoken by the accused in presence of these witnesses

vis-a-vis that recorded in the F.I.R. makes the evidence of extra

judicial confession highly doubtful and unsafe to rely upon.

Admittedly, a bare perusal of the statements of PW.2 Nathu Ram

and PW.3 Arjun Ram clinches the issue beyond all manner of

doubt that the extra-judicial confession was extracted by the

police by using third degree methods. PW.2 Nathu Ram stated in

his examination-in-chief as below:-

iqfyl okyksa us Jo.k jke dks gdjk;k rc Jo.k jke usa crk;k fd lenq dk

xyk ?kksV dj ekj fn;k gS Lor% dgk fd iqfyl dh dkWy fMVsy ls irk yxk;k FkkA

eSa x;k Fkk rc esjs s lkFk vtqZu] txjke o ikcqjke Hkh FksA ge rhuksapkjksa ds lkeus

gh Jo.kjke us crk;k Fkk fd lenq dks mlus xyk ?kksaV dj ekj fn;k gSA

PW.3 Arjun Ram stated in his examination-in-chief as below:-

fQj geus Fkkusnkjth dks dgk fd esjs dks fjiksVZ ,slh feyh gSA fQj Fkkusnkj th

,slh ckr crk;h vkSj eqy- dks fxj¶rkj fd;k vkSj ekjihV dh FkhA xokg us dgk fd esjs

lkeus ekjihV ugha dh FkhA fQj Jo.k jke gkdj x;k tks esjs lkeus gka ugh Hkjh Fkkus esa

gkaa Hkjh FkhA fQj Jo.k th oks txg Hkh iqfyl okyksa dks crk;h dh ogka ij ekjh Bksdh FkhA
(19 of 20) [CRLA-1150/2015]

These categoric admissions by these material witnesses i.e.,

Nathu Ram and Arjun Ram establish beyond doubt that the extra-

judicial confession was extracted by the police officials by using

third degree methods.

In view of the above discussion, we are of the firm opinion

that the prosecution failed to lead cogent, convincing and reliable

evidence so as to bring home any of the circumstances relied upon

by it to prove the charges against the appellant.

In view of the fact that we have concluded that the

prosecution could not lead positive cogent and clinching evidence

to prove the charge that the accused appellant murdered Smt.

Samdu punishable under Section 302 I.P.C. or that he is

responsible for her dowry death punishable under Section 304-B

I.P.C, we need not delve into the argument advanced by learned

Public Prosecutor that the powers available to this Court by virtue

of Section 386 Cr.P.C. should be exercised so as to convict the

accused for the charge under Section 302 I.P.C.

In this background, we feel that the accused appellant

deserves to be acquitted from the charge under Section 304B IPC

in the alternate 302 IPC by extending him the benefit of doubt.

However, since there is circumstantial evidence on record to show

that the accused was regularly threatening Smt. Samdu to leave

her and re-marry on the pretext that she disliked her, the

prosecution has been able to bring home the charge for the

offence under Section 498A IPC against the accused appellant.

(20 of 20) [CRLA-1150/2015]

Thus, we affirm the conviction and sentence awarded to the

appellant by the trial court for the offence under Section 498A.

Thus, the appeal deserves to be and is hereby allowed in

part. Conviction of the appellant for the offence under Section

304B I.P.C. in the alternative for the offence under Section 302

I.P.C. as recorded by learned trial court vide its judgment dated

30.09.2015 is hereby quashed and set aside. However, his

conviction for the offence under Section 498-A I.P.C. is sustained.

The impugned judgment is modified accordingly. The accused is in

custody since 05.09.2011 and thus, he has already suffered the

maximum sentence of three years provided under Section 498-A

I.P.C. Thus, we hereby direct that he shall be released from

custody forthwith if not wanted in any other case.

However, keeping in view the provisions of Section 437-A

CR.P.C., the accused appellant is directed to furnish a personal

bond in the sum of Rs.15,000/- and a surety bond 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 judgment on receipt of

notice thereof, the appellant shall appear before the Supreme

Court.

The appeal is partly allowed in these terms.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

Sudhir Asopa

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