HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Murder Reference No. 1 / 2013
State of Rajasthan
—-Petitioner
Versus
Sonu @ Sohan Lal S/o Satpal, by caste Dhanak, aged 34 years,
Resident of Ward No.8, Kachhi Thedi Radewala Road, Karanpur,
P.S. Karanpur, presently Ward No.19, Sadul Sahar, Police Station
Sadul Sahar, District Sri Ganganagar.
—-Respondent
Connected With
D.B. Criminal Appeal No. 64 / 2013
Sonu @ Sohan Lal S/o Satpal, by caste Dhanak, aged 34 years,
Resident of Ward No.8, Kachhi Thedi Radewala Road, Karanpur,
P.S. Karanpur, presently Ward No.19, Sadul Sahar, Police Station
Sadul Sahar, District Sri Ganganagar.
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Petitioner(s) : Mr. Mahesh Bora, Sr. Advocate with
Mr. Nishant Bora Mr. Arun Kumar.
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
Mr. Rakesh Matoria, for complainant.
__
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HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
JUDGMENT
[Per Mr. G.K. Vyas, J.]
Date of Judgment: 25th July, 2017
REPORTABLE
The Special Additional Sessions Judge (Women Atrocities
Dowry Prohibition) Cases, Sri Ganganagar, made death reference
for confirmation of capital sentence passed vide judgment dated
10.01.2013 in Session Case No.15/2010, whereby accused, Sonu
@ Sohanlal, was convicted for offences under Section 302 and 376
IPC and following sentence was passed against accused appellant-
Sonu @ Sohanlal: –
302 of IPC Capital punishment.
376 of IPC Life imprisonment along
with fine of Rs.1000/-. In
default of payment of fine
to further undergo six
months‟ additional simple
imprisonment.
The accused appellant, Sonu @ Sohanlal, preferred appeal
against the judgment dated 10.01.2013 passed by learned Special
Additional Sessions Judge (Women Atrocities Dowry Prohibition)
Cases, Sri Ganganagar, in Session Case No.15/2010, whereby the
accused appellant was convicted for offence under Sections 302
and 376 of IPC and death sentence is passed against him for
commission of offence u/s 302 and sentence for imprisonment for
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life has been imposed against him for committing offence u/s 376
of IPC.
In the death reference made by the Special Addl. Sessions
Judge (Women Atrocities Dowry Prohibition) Cases, Sri
Ganganagar, and in the appeal filed by the accused appellant, the
judgment dated 10.01.2013 is under challenge, therefore, we are
deciding both the case by this common judgment.
Briefly stated, the facts of the case are that on 17.05.2010
at 03.15 PM the complainant PW.1- Mangilal, submitted a written
report (Ex.P/1) stating therein that he is resident of Ward No.19 of
Sadulsahar. Before two years, Sonu Kumar @ Sohan Lal, resident
of Karanpur, came at Sadulsahar for employment and he was
employed at the shop of one Laxmichand, since then he is residing
in Sadulsahar. According to complainant, Sonu Kumar became
friend of him and used to visit his house and due to good relations
he was treating him as brother. As per allegations of the
complainant, when accused Sonu used to visit his residence, he
(accused) developed illicit relations with his sister, Shalu. When
above fact came to the knowledge of the complainant, then he
raised objections and instructed Sonu Kumar not to keep relations
with his sister, but Sonu Kumar did not stop his activities of illicit
relation with his sister, Shalu. On 17.05.2010 when complainant‟s
mother and sister Manju and brother-in-law, Dharampal went
Padampur for exploring relation for the marriage of Shalu, the
complainant and his brother, Kishan, both left the house for some
work in the market. When all the family members went out of the
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home, the sister of complainant, Shalu, and Smt. Pinki, wife of his
younger brother remained in the house. According to complainant,
accused Sonu Kumar called Shalu at 12‟O Clock in the forenoon
when she was at home and took her in his rented house situated
in Ward No.16 of Sadulsahar. The complainant made allegations
that Sonu @ Sohanlal committed murder of his sister in his house
while inflicting injuries by sharp edged weapon „Gandasa‟. On that
day, at about 01.30 PM, when complainant came back to his
house for taking meal, wife of his younger brother Pinki informed
that Shalu was called by Sonu Kumar and Shalu went out from
house with Sonu Kumar.
Upon receiving such information, complainant made search
of his sister, Shalu, and according to him one Puranram S/o
Gyarsa Ram met him and informed that he has seen his sister and
Sonu Kumar at 12‟O clock near the school. The complainant
further stated that after getting such information another witness,
namely, Sahabram S/o Sukhpal, who was going to his house for
taking meal, informed in the way that I have seen Sonu Kumar
and one girl when they were going on foot towards Ward No.15.
After receiving the aforesaid information, the complainant went to
the rented house of Sonu Kumar (accused) and saw that room
was closed from outside. The allegation of the complainant is that
he made search from outside the room and saw the body of Shalu
was lying dead on the floor of room and blood over the body.
Upon aforesaid written-report (Ex.P/1) submitted by the
complainant, the S.H.O., Police Station- Sadulsahar, registered
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formal FIR No.140/2010 (Ex.P/2) on 17.05.2010. After
registration of FIR, the Investigating Officer immediately went to
house of Sonu Kumar and after inspection prepared site plan and
recorded details of the place of occurrence vide Ex.P/3 and
Ex.P/3A. The „Panchnama‟ (Ex.P/4) of the dead body was prepared
on spot. Blood stained pillow cover and bed-sheet were taken in
possession vide Ex.P/5. Blood stained sleeper of Shalu were also
taken in possession vide Ex.P/6. One piece of blood stained
„Chunri‟ lying on the fan, was also taken vide Ex.P/7. The blood
spread on the floor was also collected in the bottle vide Ex.P/8. All
the articles were sealed on the spot. The clothes which deceased,
Shalu was wearing viz. Salwar, underwear and other clothes, were
also taken in possession vide Ex.P/9 and sealed. The dead body of
deceased was taken to hospital for postmortem by the medical
officer in the Govt. Hospital, Sadulsahar. After conducting
postmortem the body was handed over to the complainant vide
Ex.P/10 for cremation. The photographs of the dead body were
also taken.
Accused, Sonu @ Sohanlal was arrested vide Ex.P/24 at
07.10 PM on 17.05.2010 and the clothes which he was wearing at
the time arrest were taken in possession and sealed vide Ex.P/25.
After arrested, upon the information furnished by accused Sonu @
Sohanlal, the weapon of offence „Iron-Barcha‟ was recovered vide
Ex.P/22. The site plan of place from where the weapon was
recovered was prepared vide Ex.P/23 and Ex.P/23A. All the
recovered articles were sent to the FSL, Jaipur vide Ex.P/31 for
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examination. In the investigation, postmortem report of Shalu
(Ex.P/32) was obtained. During investigation an application
(Ex.P/36) was filed before the Judicial Magistrate, Sri Ganganagr,
for recording the statement of accused under Section 164 Cr.P.C.
in pursuant of that, confessional statements of accused were
recorded vide Ex.P/40, in which, the accused, Sonu @ Sohanlal
accepted the fact of committing murder and inter-course with the
deceased, therefore, Section 376 IPC was also added and medical
examination of his potency was got conducted by the doctors and
report (Ex.P/34) prepared by the doctor was taken on record. The
vaginal swab and smear slide of deceased were also taken at the
time of postmortem and sent to the FSL, Jaipur, from where
report (Ex.P/33) was received and other chemical examination
report (Ex.P/37) was also received from FSL.
After completing the investigation the SHO, Police Station
Sadulsahar, filed charge sheet against the accused appellant u/s
302 and 376 of IPC in the court of Judicial Magistrate, Sadulsahar,
Sri Ganganagar, from where the case was committed to the court
of Sessions Judge, Sri Ganganagar for trial but later on it was
transferred to the court of Addl. Special Sessions Judge, Sri
Ganganagar, for trial.
The learned trial court after providing an opportunity of
hearing on the basis of evidence on record framed charges against
the accused appellant for committing offence under Sections 302
and 376 of IPC, but the accused appellant denied the charges
levelled against him and prayed for trial.
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In the trial, statements of 16 prosecution witnesses were
recorded and 41 documents were exhibited from the prosecution
side and Articles 1 to 10 were produced in support of prosecution
case.
After recording the evidence of the prosecution, statements
of accused appellant were recorded under Section 313 Cr.P.C., in
which accused Sonu @ Sohanlal denied all the allegations levelled
against him by the prosecution witnesses and said that all the
recoveries which are alleged to be made by the investigating
officer, are false and no blood was found upon his clothes. It is
also submitted that no willingness was shown by him for recording
his statements under Section 164 Cr.P.C. by the Magistrate. The
police gave threat that you should make confession before the
Magistrate in your statement, therefore, whatever confessional
statement is recorded by the magistrate under Section 164
Cr.P.C., were not recorded as per his free will because he was
compelled by the police to give such type of confessional
statement. In defence three documents were exhibited and no
oral evidence was produced by the accused appellant inspite of
granting an opportunity.
The learned trial Judge thereafter heard the arguments and
framed following question for deciding the case, which reads as
infra:
“D;k vfHk;qDr us fnukd
a 17-05-2010 dks le; yxHkx fnu eas 12-
00 cts ls 1-30 ih ,e ds e/; ljgn ekt S k okMZ uca j 16 lknqy”kgj eas
/keZohj “kekZ ds vkoklh; edku eas vius fdjk;s ds dejs eas dqekjh “kkyw ds
lkFk mldh bPNk ds fo:) vkSj lEefr ds fcuk eSFkuq djds cykRlxa
(8 of 27)
[MREF-1/2013]fd;k rFkk lk”k; ;k tkudkjh j[krs gq;s dqekjh “kkyw ds cNZs dh flj o
“kjhj ij ekjdj mldh e`R;q dkfjr djds gR;k dkfjr dh”
The learned trial court after hearing final arguments
convicted the accused appellant for the offences under Sections
302 and 376 of IPC and passed death sentence for offence u/s
302 IPC and life imprisonment for offence u/s 376 of IPC vide
judgment dated 10.01.2013 in Session Case No.15/2010 and
made reference for confirmation of death sentence. The accused
appellant preferred appeal and challenged the judgment dated
10.01.2013 on various grounds.
Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Nishant Bora
and Mr. ArunKumar, vehemently argued that the entire
prosecution case is based upon circumstantial evidence and there
is no eyewitness of the incident. The prosecution has relied upon
the confessional statement of the accused appellant recorded
under Section 164 Cr.P.C. (Ex.P/40) by the learned Judicial
Magistrate, First Class, Sri Ganganagar (Mr. PremSingh Dhanwal),
however, the said statements cannot be relied upon for the
purpose of conviction because the same were not recorded as per
willingness of the accused appellant because on the date of
recording the statements under Section 164 Cr.P.C. by the
Magistrate, for all purposes, the accused appellant was in the
police custody and if any confessional statement is recorded by
the Magistrate, when accused appellant was in police custody, the
same cannot be relied upon so as to hold accused appellant guilty
for committing offence of murder and rape. It is also argued that
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entire case is based upon the evidence of last seen and
confessional statement recorded under Section 164 Cr.P.C., but
the prosecution has miserably failed to prove both these grounds,
because two witnesses of last seen, viz. PW.4 Puran Ram and
PW.11, Sahabram, are the planted witness so as to prove the fact
of last seen. Therefore, their testimony deserve to be discarded
for the simple reason that presence of both these witnesses is
seriously doubtful. It is also argued that one Pinki was most
important witness of the prosecution whose name is mentioned in
the FIR has not been produced by the prosecution to prove the
fact that deceased Shalu left the house and went with Sonu
Kumar. Therefore, in absence of reliable evidence of Smt. Pinki,
whose presence in the house, is disclosed in the FIR by the
complainant, it cannot be said that prosecution has proved its
case beyond reasonable doubt.
Learned counsel for the accused appellant further argued
that Magistrate can record the statements under Section 164
Cr.P.C., but it is mandatory for him to record confessional
statement as per procedure laid down u/s 281 Cr.P.C. A bare
perusal of the statement (Ex.P/40) would reveal that those
statements were recorded in violation of Section 281 Cr.P.C.
Learned counsel for the appellant invited our attention towards
the fact that the accused appellant was arrested at 07.10 PM on
17.05.2010 and he was produced before the Magistrate for taking
police remand on the next day i.e. on 18.05.2010 at 04.45 PM.
The learned Civil Judge (Jr.Division)-cum-Judicial Magistrate, First
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Class, Sadulsahar, granted two days police remand and directed
the investigating officer to produce the accused before the court at
12.00 PM on 20.05.2010. It is also submitted that in between the
said period, an application was filed by the investigating officer
before the learned Judicial Magistrate, Sri Ganganagar, on
18.05.2010 for recording the statements of accused u/s 164
Cr.P.C. upon which the learned Magistrate passed an order on
18.05.2010, whereby the investigating officer was directed to
produce accused Sonu Kumar, for recording his confessional
statement on 19.05.2010 at 10.00 AM.
While inviting our attention towards (Ex.P/36) application
filed by the investigating officer, in which it was prayed that the
accused has made confession during investigation, therefore, his
statements may kindly be recorded. Admittedly, on 18.05.2010,
Sonu Kumar was in police custody and remand for police custody
was given by the learned Magistrate up to 20.05.2010 but the
investigating officer produced the accused appellant before the
concerned Magistrate on 19.05.2010 at 07.55 AM and on date,
accused Sonu Kumar was sent to judicial custody up to
31.05.2010 but instead of sending the accused appellant to
judicial custody, the investigating officer straightway produced the
accused appellant for recording his statement on the same day
before the Judicial Magistrate No.1, Sri Ganganagar on
19.05.2010 where his confession statement was recorded under
Section 164 Cr.P.C.
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The learned Senior Advocate vehemently argued that there
was no willingness of the accused appellant for recording his
confessional statements under Section 164 Cr.P.C. and the so-
called statements recorded under Section 164 Cr.P.C. were
recorded under threat of police officials when he was in police
custody, which is apparent from the fact that an application was
moved by the investigating officer before the Magistrate, in which
it was specifically stated that during investigating, the accused
appellant has made confession, therefore, his statements may be
recorded under Section 164 Cr.P.C. The argument of learned
counsel for the appellant is that the statements recorded u/s 164
Cr.P.C. cannot be relied upon so as to hold accused appellant
guilty because statements were recorded when the accused
appellant was in police custody, so also, the day on which the
application was filed by the investigating officer for recording
statement of accused u/s 164 Cr.P.C., he was very much in police
custody, therefore, it was the duty of the learned trial court to
disbelieve the confessional statement of accused appellant, which
is said to be recorded u/s 164 Cr.P.C. without following the
procedure laid down u/s 281 of Cr.P.C. As per argument of the
appellant‟s counsel, the lead trial court has erroneously relied
upon the said statement so as to hold accused appellant guilty,
therefore, the judgment suffers from patent illegality.
Learned Senior Advocate while attacking upon the evidence
of last seen submitted that as per prosecution case, there were
three witnesses of last seen viz. PW.3 Puranram, PW.11,
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Sahabram, and Pinki (wife of younger brother of complainant). As
per complainant, when he reached at home, Smt. Pinki gave
information that Sonu called Shalu, when she was in the house
and upon calling, Shalu went along with Sonu Kumar. But, Pinki
has not been produced before the court to prove said fact.
Therefore, it is argued that prosecution has failed to examine this
important witness to prove the case against the appellant. While
inviting attention towards the statement of PW.3, Puran Ram, it is
vehemently argued that upon perusal of his statements, it will
reveal that his presence is seriously doubtful because if said Puran
Ram was present and went along with complainant to search
deceased, Shalu, then, obviously his statements were to be
recorded immediately by the police but as per prosecution case,
statement of PW.3- Puran Ram were recorded under Section 161
Cr.P.C. after two days. It is also argued that if PW.3- Puran Ram
had seen Shalu in the company of Sonu Kumar, then why he has
not made effort for rescue of Shalu, therefore, it is obvious that
testimony of this witness has wrongly been relied upon by the
learned trial court for recording finding of conviction. While
inviting attention towards the statement of PW.11 Sahab Ram, it
is submitted that said witness was ward member of the area and
as per his statement, accused appellant was going with one girl on
the date of incident. When he was going to his house for taking
meal and further stated that Mangilal complainant met him, and
upon inquiry about his sister, he said that Sonu Kumar had taken
his sister. The learned counsel for the appellants submit that the
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fact of last seen has not been proved by the prosecution because
both the witnesses PW.3 Puran Ram and PW.11 Sahab Ram are
planted witness, therefore, the important circumstance of last
seen has not been proved by the prosecution beyond reasonable
doubt.
With regard to recovery of clothes, it is submitted that as per
arrest memo, clothes which accused was wearing at the time of
occurrence, were immediately taken in possession because those
clothes were having blood upon them, but there is no evidence on
record that as to what type of clothes were given to the appellant
to wear after taking his clothes, therefore, the recovery of clothes
cannot be used as evidence to connect the appellant with the
alleged crime of murder. While inviting our attention towards
postmortem report (Ex.P/32), and statement of the doctor PW.14,
Dr. Madan Singh, it is submitted that in the postmortem report
the doctor opined that the injuries were in the form of lacerated
wound and were caused by blunt weapon but in the investigation
one sharp edged weapon viz. „Iron-Barchi‟ was recovered,
therefore, on this ground also, it is obvious that prosecution has
failed to connect the recovery of sharp edged weapon with the
injuries found upon the person of deceased. According to
argument, it is a case in which neither evidence of last seen is
proved nor the confession statement of appellant is doubtful, the
recovery of clothes and nature of injuries found upon the dead
body relates with the weapon recovered at the instance of the
appellant. The prosecution has miserably failed to prove the
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occurrence, therefore, it is obvious that trial court erroneously
held the accused appellant guilty and has wrongly passed the
death sentence as well as imprisonment for life u/s 302 and 376
of IPC respectively without any evidence.
In view of above, it is submitted that as per evidence
available on record, not only the finding of guilt recorded u/s 302
and 376 IPC deserves to be quashed, the appellant is entitled to
be acquitted from the charges levelled against him.
Per contra, learned Public Prosecutor and learned counsel for
the complainant, vehemently argued that there is no strength in
the arguments advanced by the learned counsel for the accused
appellant because upon trustworthy and reliable evidence, the
learned trial court held the accused appellant guilty for the offence
sunder Sections 302 and 376 of IPC. It is submitted that although
prosecution case is based upon circumstantial evidence and extra
judicial confession and recovery of clothes and weapon, but it
cannot be said that the accused is entitled to be acquitted from
the charges levelled against him because accused appellant was
married person and being friend of Mangilal (brother of the
deceased) used to visit at the house of Mangilal but developed
illicit relations with deceased, Shalu, and this fact is established
from the prosecution evidence. The entire prosecution case is
based upon testimony of 16 witnesses, none of the witnesses
turned hostile and completely supported the prosecution case.
While inviting attention towards statements of PW.-16, Prem
Singh Dhanwal, who was the Judicial Magistrate, First Class No.1,
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Sri Ganganagar, it is submitted that the confessional statement of
accused appellant was recorded by him under Section 164 Cr.P.C.
and as per directions given by Chief Judicial Magistrate, Sri
Gangangar, upon request made on behalf of accused. The learned
Magistrate (PW-16 Prem Singh Dhanwal) categorically stated on
oath before the court that confessional statement of the accused,
Sonu @ Sohan Lal were recorded as per his will and informing him
that there is no pressure upon you to give confessional statement
and you are free to give your statement or not. The Magistrate
stated before the court that he has recorded his satisfaction to
test the independency of the accused appellant for the purpose of
recording his confessional statement; and thereafter recorded the
confessional statement (Ex.P/40) in which the accused appellant
accepted the incident for committing murder of deceased, Shalu.
The crux of the arguments of learned Public Prosecutor is
that not only circumstantial evidence is relied upon by the trial
court but there is confessional statement recorded by the Judicial
Magistrate No.1, Sri Ganganagar, in which the accused appellant
accepted his guilt for committing murder of deceased, Shalu, with
whom he was having illicit relations. According to learned Public
Prosecutor, the statement of Magistrate (PW.16) Prem Singh
Dhanwal, cannot be doubted because he is independent witness
and performed his legal duty assigned to him, therefore, how it
can be said that procedure adopted by the Magistrate for the
purpose of recording the confessional statement of the accused
was faulty or illegal in any manner. Thus, the finding of guilt
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recorded by the learned trial court does not suffer from any
illegality.
Learned Public Prosecutor invited our attention towards the
statement of PW.-1 Mangilal, and PW.-2 Krishanlal, both brothers
of the deceased, PW.3- Purnram, PW.11 Sahabram, and submits
that these witnesses categorically stated before the court that
accused appellant was having illicit relations with Shalu and an
objection was raised by the brothers and “Panchayat” was also
held to sort out the dispute and the accused was warned not to
have illicit relations with Shalu. It is also submitted that the dead
body of the deceased, Shalu was found in the rented house of the
accused appellant and this fact is not only proved by the brothers
of the deceased and other witnesses but also by the witness
PW.7- Dharamveer and PW.8- Savitri, (landlord of the accused, in
whose house the accused appellant was residing as tenant). The
witness PW.8- Savitri stated on oath that dead body of the
deceased, Shalu was found in their room, which was let out to
accused, therefore, if the dead body of deceased, Shalu, was
found in the house of accused, then obviously it was to be
explained by the accused appellant as to how dead body of
deceased was found in his room/house. In view of this it is
submitted that there is no question to disbelieve the prosecution
case on the basis of grounds raised by the counsel for the
accused.
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Learned Public Prosecutor and learned counsel for the
complainant for maintaining the finding of conviction invited our
attention towards following judgments: –
(a) State of Rajathan Vs. Thakur Singh reported in 2014 AIR
SCW 4479.
(b) Phula Singh Vs. State of Himmachal Pradesh, reported in
2014 AIR SCW 1499.
(c) State of Rajasthan Vs. Manoj Yadav reported in 2012
Cr.L.J. 456
(d) Vasanta Sampat Duparev Vs. State of Maharashtra
reported in AIR 2015 SC (Supp) 14
While replying upon aforesaid judgments he submits that no
illegality or error has been committed by the learned trial court in
view of aforesaid judgments so as to hold accused appellant guilty
and imposing capital punishment for the offence committed by the
accused appellant under Section 302 IPC and imprisonment for life
for offence u/s 376 of IPC, therefore, the instant appeal may
kindly be dismissed and the murder reference made by the
Sessions Judge, Sri Ganganagar, to confirm the death sentence,
may kindly be accepted.
After hearing the learned counsel for the parties, we have
perused the entire judgment rendered by the learned trial court as
well as evidence on record. Admittedly, complainant, PW.-1,
Mangilal, brother of deceased submitted a written report (Ex.P/1)
on 17.05.2010 at 03.00 PM at Police Station- Sadulsahar, where
F.I.R. No.140/2010 (Ex.P/2) was registered against the accused
appellant under Section 302 IPC. The police went on the spot in
the rental house of accused appellant Sonu @ Sohanlal and the
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dead body of the deceased was recovered from the said house.
The police prepared site plan (Ex.P/3) of the place where the dead
body was lying and details of the place where dead body was
lying, was recorded vide Ex.P/3A on 17.05.2010. Vide Ex.P/4,
„Panchnama‟ of the dead body was prepared at 04.00 PM and
blood stained bed sheet, pillow cover upon which the dead body
was lying were taken in possession vide Ex.P/5. Blood stained
sleepers of the deceased, Shalu, were taken in possession vide
Ex.P/6. One piece of blood stained “Chunri” was recovered from
the fan vide Ex.P/7. The blood spread over on the floor was also
collected and taken in possession and undergarment of the
deceased were taken in possession vide Ex.P/9. After postmortem
the dead body of the deceased was handed over to the brothers of
the deceased viz. Mangilal and Sahabram and Purnram on the
same day i.e. on 17.05.2010 in the evening. The accused was
arrested on 17.05.2010 at 07.00 PM vide Ex.P/24 and upon his
information the place of occurrence was also identified and a blood
stained „Barchhi‟, the weapon of offence, which was used to
commit murder of the deceased was recovered at 06.30 AM on
18.05.2010. The site plan of the place from where the „Barchhi‟
was recovered was prepared vide Ex.P/23) and details were
recorded vide Ex.P/23A. Blood stained tracksuit (ik;tkek) of the
accused was recovered as per his information vide Ex.P/35 on the
same day. The postmortem of the dead body was conducted at
Govt. Hospital, Sadulsahar by the Medical Officer at 05.40 PM on
17.05.2010 and postmortem report (Ex.P/32) was give by the
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doctor to the investigating officer. All the articles were sent to FSL
for examination and vide Ex.P/37, it was reported by FSL that
human blood of „B‟ group was found upon all the articles sent for
chemical examination.
In support of prosecution case, statements of 16 witnesses
were recorded. The author of the FIR PW.-1 Mangilal, brother of
the deceased, categorically stated in his statements that accused
Sonu @ Sohanlal was resident of Karanpur, but he shifted at
Sadulsahar and they were working together, therefore, friendship
was developed in between them. Due to friendship, accused Sonu
@ Sohanlal, used to visit his house and developed illicit relations
with his younger sister, Shalu (deceased), an objection was raised
not only by the complainant, Mangilal, but also by other members
of the family. However, the accused did not change his way and
continue to have illicit relations with deceased, Shalu and
ultimately he has killed her in his rented house. Although in the
cross-examination, certain questions were put to the witness,
Mangilal (PW.1) with regard to the fact that who has given
information on the date of occurrence that Shalu was taken
forcibly by Sonu @ Sohan Lal. The witness in his examination-in-
chief categorically stated that on the date of incident at about
12.00 AM in the morning hours, when he came back from his work
place to his house, the wife of his younger brother, Smt. Pinki
informed that accused Sonu @ Sohan Lal had forcibly taken Sahlu
with him. Thereafter, a search was made by him. As per witness
Mangilal (PW.1) first of all he met Purnram and made enquiry
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about Shalu. Purnram informed that I have seen Shalu along with
Sonu @ Sohan Lal when they were going towards school.
Thereafter Sahab Ram (other witness) also informed that Sonu @
Sohanlal while taking Shalu with him was going toward Wad
No.16. Upon receiving aforesaid information, the complainant
Mangilal immediately went to the house of Dharamveer, where
accused appellant, Sonu @ Sohan Lal was living as tenant, but
Sonu @ Sohan Lal was not found there and his room was closed,
however, from the ventilator (taxyk) he saw that dead body of his
sister, Shalu was lying on the floor and blood was spread on the
floor. The complainant immediately went to the police station for
registration of FIR and submitted written report, upon which FIR
was registered and police immediately reached at the place of
occurrence and opened the door of house and proceeded to
conduct investigation. During investigation, all the articles were
recovered from the place of occurrence and statements of other
witnesses, Purnram, Sahabram, Dharaveer Sharma and Saviti
(mother of Dharamveer, landlord) were also recorded under
Section 161 Cr.P.C. All these witnesses categorically proved the
fact that dead body of deceased, Shalu, was recovered from the
house, where accused appellant was residing on rent. It is true
that Pinki, wife of younger brother of Mangilal (complainant), was
not produced before the court as prosecution witness, but in our
opinion when it is proved by the prosecution that the dead body of
the deceased was found in the rented house of the accused, Sonu
@ Sohan Lal, then, non-production of Pinki as prosecution witness
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[MREF-1/2013]
in the trial court, cannot be treated a ground to disbelieve the
prosecution story. Therefore, the argument of the learned counsel
for the accused appellant that material witness has not been
produced and examined before the court, is immaterial.
We have perused the statement of other witnesses. All the
witnesses Dharamveer, Savitri, Puran Ram, Sahab Ram and
investigating officer gave statement and categorically proved the
fact that dead body of deceased, Shalu was recovered from the
house of the accused, the FSL report loudly speaks that clothes of
deceased, as well as of accused, and other material recovered
from the place of occurrence, which were sent to the FSL, and
according to FSL report, human blood of „B‟ ground was found
upon them. Therefore, on this ground also, we are of the opinion
that there is no strength in the argument of the learned counsel or
the accused appellant that whole prosecution story is doubtful.
We have also considered the argument of learned counsel for
the accused appellant with respect to confessional statement of
the accused was recorded when he was in police custody. The
accused appellant was arrested on 17.05.2010 vide Ex.P/24 and
was produced before the Magistrate for taking police remand on
the next day i.e. 18.05.2010 at 04.45 PM and the learned
Magistrate granted two days‟ police remand for investigation and
directed the investigating officer to produce accused Sonu @
Sohnalal before the court on 20.05.2010 at 12.00 PM. On
18.05.2010, an application was moved before the Judicial
Magistrate, Sri Ganganagar for recording statement of the accused
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[MREF-1/2013]
u/s 164 Cr.P.C. The learned Magistrate passed an order that
accused Sonu @ Sohan Lal may be produced before him for
recording his statements at 10.00 AM on 19.05.2010. According to
learned counsel for the accused appellant, on 18.05.2010 accused
appellant Sonu @ Sohan Lal was in police custody because
remand was given by the magistrate up to 20.05.2010, but as per
evidence on record the investigating officer produced the accused
appellant before the Magistrate a day before on 19.05.2010 at
07.15 and the concerned Magistrate passed an order to send the
accused in the judicial custody up to 31.05.2010. The
investigating officer before lodging the accused appellant to
judicial custody produced the accused before the Judicial
Magistrate, Sri Ganganagar on 19.05.2010, where his confessional
statement was recorded under Section 164 Cr.P.C.
To consider this argument of the learned counsel for the
accused appellant that the magistrate recorded the statements in
violation of Section 281 of Cr.P.C., we have examined the entire
evidence available on record. There is no doubt that after arrest
the accused appellant was produced before the magistrate on
18.05.2010 for the first time at about 04.45 PM and on that date,
two days‟ police remand was given for the purpose of
investigation with further direction to produce the accused on
20.05.2010 at 12.00 PM, but the investigating officer although
having two days‟ police remand, but due to completion of
investigation produced the accused a day before on 19.05.2010 at
07.55 AM to send him in judicial custody. The concerned
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[MREF-1/2013]
Magistrate passed an order at 07.55 AM on 19.05.2010 whereby
accused appellant was sent to judicial custody up to 31.05.2010.
It is admitted position of the case that before sending the
accused appellant to the judicial custody, the accused was
produced before the Judicial Magistrate, First Class No.1, Sri
Ganganagar (PW.16 Prem Singh Dhanwal) for recording his
statement u/s 164 Cr.P.C. and we have perused the statement of
PW.16- Prem Singh Dhanwal, who was posted as Judicial
Magistrate, First Class No.1, Sri Ganganagar on 19.05.2010, in
which he has categorically stated that accused appellant was
produced before him at 10.00 AM in the morning for recording his
statement under Section 164 Cr.P.C. There is no evidence on
record that any objection was raised by the accused appellant
before the magistrate concerned that he is not willing to give
statement under Section 164 Cr.P.C. or he is under the fear of
police. We have perused the cross-examination of PW.16- Prem
Singh Dhanwal, in which following statement is given by him,
which reads as under:
“;g lgh gS fd izn”kZ ih36 izkFkZuk i vfHk;qDr lkus w mQZ
lkgs uyky }kjk i”s k ugha fd;k x;kA ;g lgh gS fd izn”kZ ih36 ds Åij
i”r ij ejs s }kjk fd, x, i’` Bkd a u lh ls Mh ij vfHk;qDr ds dkbs Z
gLrk{kj ugha gSA ;g lgh gS fd vfHk;qDr dks iqfyl vfHkj{kk ls izn”kZ
ih36 ds lkFk ejs s le{k i”s k fd;k x;k FkkA euaS s ekSf[kd :i ls vfHk;qDr
dks lek fn;k Fkk fd eSa U;kf;d eftLVªVs dh gSfl;r ls lLa ohd`fr
y[s kc) d:xa k vkSj vfHk;qDr dks ;g Hkh lek fn;k Fkk fd vki
lLa ohd`fr djus ds fy, vkc/k ugha gS vkSj ,d ?kVa k lkp s us dk le; fn,
tkus ds i’pkr~ vfHk;qDr us LoPs Nk ls lLa ohd`fr ejs s le{k dh ftldks eSua s
izn”kZ ih40 eas th ls ,p ds :i eas y[s kc) dh vkjS lek tkus ds
(24 of 27)
[MREF-1/2013]lca /a k eas vkSj vU; rF;kas ds lca /a k eas tks fd vfHk;qDr dks crk, x, Fks
mldk izek.k i bZ ls ,Q ejs s }kjk fy[kk x;k FkkA ;g lgh gS fd inz “kZ
ih40 ds izek.k i eas ;g fy[kk gqvk ugha gS fd eSua s fdl gSfl;r ls
lLa ohd`fr y[s kc) dh FkhA ;g lgh gS fd vfHk;Dq r dh lLa ohd`fr y[s kc)
djus ds i’pkr~ bZ ls ,Q izek.k i y[s kc) fd;k gqvk gAS ;g lgh gS
fd euaS s vfHk;qDr dks fyf[kr eas ;g ugha fn;kFkk fd vki lLa ohd`fr djus
ds fy, vkc/k ugha gSA ;g lgh gS fd vfHk;Dq r dh lLa ohd`fr y[s kc)
djus ds i’pkr~ izn”kZ ih36 izkFkhuZ k i i”s k djus okys vuql/a kku
vf/kdkjh dks gh vfHk;Dq r lqiqnZ fd;k x;k FkkA vul q /a kku vf/kdkjh dk
uke enu flga ,l- vkbZ- gAS vkt e q s /;ku ugha gS fd vfHk;Dq r dks
enu flga ,l- vkbZ- yd s j vk;k Fkk ;k vU; ifq yldehZ yd s j vk;k FkkA
;g xyr gS fd vfHk;qDr us iqfyl ds ncko eas lLa ohd`fr dh gkAs “
Upon perusal of above cross-examination made by the
appellant‟s counsel, it is apparent that no question was put to the
Magistrate that any request was made by the accused appellant,
Sonu @ Sohan Lal, that he is not willing to give statement under
Section 164 Cr.P.C. Therefore, it cannot be said that confessional
statement was recorded under any threat or duress of the
investigating officer in contravention of Section 281 Cr.P.C. The
learned trial court gave finding that in the confessional statement
(Ex.P/40) the accused accepted that he was having relation with
deceased, Shalu, and committed murder of deceased, Shalu after
committing inter-course with her. In our opinion, even if some
lapses are there, as pointed out by the counsel for the accused
appellant, but it cannot be said that trial court has committed any
error while holding the accused appellant guilty on the basis of
confessional statement and circumstantial evidence because there
is ample evidence to establish the fact that dead body of Shalu
was found in the house of accused and there is no explanation of
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[MREF-1/2013]
accused, as to how the dead body of deceased Shalu was found in
his house.
We have considered the argument of learned counsel for the
accused appellant that there is no eyewitness to prove the
occurrence. It is true that there is no eyewitness in this case but
prosecution has proved and established the fact that dead body of
deceased, Shalu, was recovered from the house of the accused
appellant and if accused appellant was not having any relationship
with the deceased Shalu, then how the dead body of deceased
was found in the house of accused appellant. It is also required to
be observed that not only PW.1, Mangilal and PW.2 Kishanlal,
brothers of deceased proved the recovery of dead body in the
rented room/house of the accused appellant, and proved the fact
with regard to accused appellant having illicit relations with their
sister, but other independent witnesses, viz. Dharamveer (PW.7)
and Savitri (PW.8), the landlord of the rented house of accused
and Madan Singh (PW.15) Sub-Inspector of Police Station-
Sadulsahar, who has conducted the investigation, categorically
proved that dead body of deceased Shalu was found in the house
of accused Sonu @ Sohanlal, where accused was residing as
tenant.
In view of above, we are of the opinion that the prosecution
has proved its case beyond reasonable doubt that the accused
appellant was having illicit relations with deceased Shalu and it
was the accused appellant, who committed rape with her in his
rented house and thereafter committed murder, which he has
(26 of 27)
[MREF-1/2013]
accepted in his confessional statement (Ex.P/40) recorded by the
Judicial Magistrate, First Class No.1, Sri Ganganagar, therefore,
there is no question to disturb the finding of guilt recorded by the
trial court against the accused appellant for committing offences
under Sections 302 and 376 IPC.
We have also considered the argument of learned Public
Prosecutor for confirmation of the death sentence passed by the
trial court against the accused appellant for commission of offence
under Section 302 of IPC while recording the finding that it is a
rarest of rare case. In our opinion, the finding recorded by the
trial court to treat the present case as rarest of rate case, is not
sustainable in law because as per prosecution case the deceased
was having relations with the accused and she used to meet
accused appellant as per her free will, even though, objections
were raised by the members of her family; and on the date of
incident, her body was found in the house of accused appellant,
but there is no evidence on record to prove the fact that she was
forcibly taken by the accused appellant to his house because Pinki,
sister-in-law of the complainant PW.1 Mangilal who was present in
the house and gave information to complainant, has not been
produced before the court to prove the fact that Shalu was forcibly
taken by accused. It is also admitted fact that there is no
eyewitness of the incident but prosecution has proved the
allegations on the basis of circumstantial evidence. Therefore, it is
not a case which could be treated as rarest of rare case so as to
confirm the death sentence passed by the trial court. In case of
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[MREF-1/2013]
Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported
in (2014) 4 SCC 375, the Hon‟ble Apex Court held that in rarest
of rare case maximum sentence can be imposed but not
otherwise.
Accordingly, and in view of above discussion we are not
inclined to confirm the death sentence, therefore, Murder
Reference No.1/2013 made by learned Special Additional Sessions
Judge (Women Atrocities Dowry Prohibition) Cases, Sri
Ganganagar, to confirm the death sentence is hereby rejected.
Consequently, the D.B. Criminal Appeal No.64/2013 filed by
appellant is partly allowed and while upholding the finding of guilt
recorded by the trial court against the accused appellant, the
punishment of death sentence under Section 302 IPC is hereby
altered to the imprisonment for life along with fine of Rs.5000/-
with default stipulation to undergo one year‟s additional
imprisonment. The prosecution has proved its case beyond
reasonable doubt for offence under Section 376 IPC, therefore,
the conviction and sentence for the said offence passed by the
learned trial court, is hereby affirmed.
Consequently, the appeal of the accused appellant is partly
allowed.
(DEEPAK MAHESHWARI)J. (GOPAL KRISHAN VYAS)J.
DJ/-
