DHAPI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants Mst. Dhapi and Manphoolram have filed this appeal and it has been placed before me on difference of opinion between G. M. Lodha, J. and M. C. Jain, J. hearing the appeal in Division Bench. THE learned Sessions Judge, Sriganganagar, by his judgment dated November 6, 1979, convicted the appellants for the offence under Sec. 302, I. P. C. and they were sentenced to imprisonment for life and fine of Rs. 200/-, in default of payment of fine, to further undergo rigorous imprisonment for one year, and also convicted them under Sec. 201, I. P. C and were sentenced to three years', rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further suffer six months' rigorous imprisonment. Both the convicts-appellants appealed and the appeal was heard by a Division Bench consisting of G. M. Lodha, J. and M. C. Jain, J. G. M. Lodha, J. , has come to the conclusion that the conviction of the appellants under Sec. 302, I. P. C. and also under Sec. 201, I. P. C. is correct and the sentences passed against them are proper. He, therefore, opined that the appeal should be dismissed. M. C. Jain, J. was of the opinion that the prosecution has utterly failed to prove the offence against the appellants by clear, cogent, legal and unimpeachable evidence. In view of this conclusion, he was of the view that the appeal should be accepted and the convictions and sentences should be set aside and the accused-appellants should be acquitted of the offence of which they have been charged with. It is in these circumstances, that the appeal has been laid before me under the orders of Hon'ble the Chief Justice.

(2.) IT is not necessary to re-count the facts in detail, for, they have been set out in the judgments of the learned Judges. Shorn off, unnecessary details, the prosecution case is that the deceased Biru Ram was living in the Dhani of his field which is situate in Chak 3 BLD along with his wife Mst. Dhapi (appellant No. 1) and children. The other appellant Manphool Ram also resided with them. P. W. 4 Banwarilal, P. W. 9 Ramswaroop and Krishna, who are sons of Biru Ram and were serving at some other places and so, they were not living with the deceased Biru Ram. Mst. Kesar (daughter of the deceased Biru Ram-wife of Sobha Ram), was married with the younger brother of appellant No. 2 Manphool Ram. Guddi and Chawli, daughters of the Biru Ram and P. W. 8 Pappu, son of the Biru Ram were living with the deceased. As Mst. Kesar was married with Sobha Ram, the appellant Manphool Ram used to visit the Dhani of the deceased and also stayed with Biru Ram and Mst. Dhapi. The appellant Manphool Ram developed illicit relations with Mst. Dhapi, the wife of the deceased. IT is said that on the date of occurrence, i. e. December 22 1975, the appellant Manphool Ram brought liquor and meat in the Dhani. The meat was cooked by Mst. Dhapi and Manphool Ram gave liquor to Biru Ram. Biru Ram was heavily drunken and he lied on the cot. According to P. W. 8, Pappu, who was about 12 years of age on August 27, 1979 (the date on which his statement was recorded), Manphool Ram pierced sickle in the abdomen of his father (Biru Ram) and done him to death. Mst. Dhapi supported Manphool Ram in lifting the bundle of the dead body on the head of Manphool Ram. The dead body was removed from the Dhani. Manphool Ram and Mst. Dhapi threatened PW. 8 Pappu not to disclose the occurrence to anyone else he would be killed. No report of the occurrence was lodged. According to P. W. 4 Banwarilal, his maternal uncle Purkharam informed him at 33 G. B. that his father is not there in the Dhani. On being told this, P. W. 4 Banwarilal visited the Dhani, where, he met the appellant Manphool Ram. He is also said to have enquired from his mother as to where is his father. Her mother told that Biru Ram had gone to fatch his sister Mst. Kesar. P. W. 4 Banwarilal, after two days, went to the house of his brother-in-law Bobha Ram and enquired from him regarding whereabouts of his father, who informed him that he has not come there. After this, he returned to the Dhani of Biru Ram and asked Mst. Dhapi to accompany him and to leave the-company of Manphool Ram. Mst. Dhapi is said to have asked him to bring cart. He brought the cart. He found that the appellant Manphool Ram, Sobha Ram, Sarwan and Udaram were sitting there. He asked his mother (Mst. Dhapi) to put the luggage in the cart and to accompany him to his residence at 33 G. B. The appellant Manphool Ram turned him out after giving beating to him and Ramswaroop, his maternal uncle's son. IT was on April 13, 1976, that P. W. 4 Banwarilal, submitted a report to the Superintendent of Police, Sriganganagar stating about the development of illicit relations of Manphool Ram with his mother Mst. Dhapi and that they considered his father Biru Ram to be an impediment in their way. IT was also stated that the appellant Manphool Ram has illegally occupied one square of land of his father. A request was made that immediate action may be taken and in case the deceased Biru Ram has been killed, action may be taken against the appellants and in case Biru Ram is alive, his life may be saved. On the basis of the report, which was sent to him by the Superintendent of Police, Sriganganagar, a case under Sec. 364, I. P. C. was registered by Shri Ummed Singh, S. H. O. , Bijoynagar on May 17, 1978, and it was handed over to C. I, C. I. D. , for investigation as ordered by the Superintendent of Police. P. W. 4 Banwarilal submitted a complaint to the Home Minister, Government of India, New Delhi, which ultimately was sent for investigation to Iqbalsingh, C. I. During investigation, P. W. 13 Purkharam produced three post-cards Exs. 3,6 and 8 on February 24, 1978. After the registration of the case, on the report dated April 13, 1976, P. W. 19 Iqbalsingh conducted further investigation and arrested the accused-appellants. At the instance of the appellants, some bones and sickle were recovered. After the investigation, charge-sheet was filed against both the appellants. The learned Sessions Judge, Sriganganagar, conducted the trial. Nineteen witnesses were examined on behalf of the prosecution. After the prosecution evidence was over, the accused-appellants were examined under Sec. 313, Cr. P. C. IT was stated by appellant No. 2 Manphool Ram that the witnesses have falsely given evidence against him due to enmity as he had lodged a report against P. W. 4 Banwarilal, P. W. 9 Ram Swaroop and P. W. 17 Mani Ram for the offence of murder of Mst. Chawli, the daughter of the deceased. Appellant No. 1 Mst. Dhapi stated that she had reported the matter regarding the missing of her husband and also made a complaint of harassment by P. W. 13 Purkharam and P. W. 4 Banwarilal. She was also said to be a witness against P. W. 4 Banwarilal and P. W. 9 Ramswaroop in the murder case of Mst. Chawli. IT was on account of these reasons that the witnesses have deposed against her. The accused-appellants did not produce any witness in defence. The learned Sessions Judge, Sriganganagar, has convicted and sentenced both the accused-appellants as aforesaid by his judgment dated November 6, 1979.

(3.) IN these circumstances, the first question that crops up for consideration is whether there is credible and unimpeachable evidence on record on the basis of which it can be held that the accused-appellants are guilty of the offences with which they have been charged with. The main and the most important evidence in this case is that of PW 8 Pappu, who is son of the deceased Biru Ram and the accused-appellant Mst. Dhapi as he is said to be an eye witness of the occurrence. His statement was recorded by the learned Sessions Judge on August 27, 1979. The witness, at the time of recording of his statement was 12 years of age. By putting two questions as to the object of coming and for what purpose the date has been fixed, the learned Sessions Judge was satisfied regarding the competency of the witness to give the statement. The occurrence is said to have taken place in the night of December 22, 1975. At that time, P. W. 8 Pappu was aged 8 years. He has given ocular account of the occurrence. He has stated that after making his father Biru Ram dead drunk, when he was lying on the cot. that the accused Manphool Ram cut his abdomen with sickle and thereafter, his body was removed after it being wrapped in cloth and that bundle was removed by the accused Manphool Ram on his head with the support of his mother Mst. Dhapi. The report of the occurrence was not lodged soon after the commission of the offence. The written report Ex. P 9 dated April 13, 197b addressed to the Superintendent of Police, Sriganganagar, was submitted by P. W. 4 Banwarilal. IN that report, it was not specifically stated that Biru Ram has been murdered. What was mentioned therein was regarding apprehension about the murder or for tracing out the whereabouts of the deceased Biru Ram. To quote from the report:- *** P. W. 8 Pappu has stated that he has divulged the information to one Mala Ram, who was working as a servant in the field of Banji Thakar, which is adjacent to his field as Malaram enquired from him regarding his father and thereupon, he (P. W. 8 Pappu) narrated about the occurrence to him (Mala ram ). It may be stated here that Malaram has not been produced by the prosecution. It appears from the cross-examination of P. W. 8 Pappu that Malaram had not asked him anything and he of his own accord, narrated, about the occurrence. IN the words of P. W. 8 Pappu:- *** The witness also stated that after 2 or 3 days of the occurrence, his elder brother P. W. 4 Banwarilal came to Dhani and there he narrated about the occurrence to him. He has told his brother that their father has been murdered. It is thus, clear from the statement of P. W. 8 Pappu that the information regarding murder of Biru Ram was conveyed to Mala Ram after 2-3 days and to P. W. 4 Banwarilal after 5-6 days of the occurrence. Now, one has to consider that if P. W. 8 Pappu had seen the occurrence and informed about the murder to Malaram 2-3 days after the occurrence and 5-6 days after to P. W. 4 Banwarilal, a report about it should have been lodged, but the fact is that no report was lodged and even on April 13, 1976, the report which was submitted to the Superintendent of Police, Sri Ganganagar, definite allegation regarding murder of Biru Ram was not made.