RADHEY SHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE instant appeal is directed against the judgment of the Sessions Judge, Jaisalmer dated 1. 12. 2000 convicting the appellant of offence under Section 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 3000/-; in default of the payment to further undergo 3 months simple imprisonment.

(2.) BRIEFLY stated that facts of the case are that on 28. 11. 99 at about 10:45 A. M. appellant submitted a written report Ex. D3 at Police Station, Pokran stating inter alia that he had performed `nata' marriage with Sariya Devi two years back and he was living happily with her. On 27. 11. 99 after taking dinner they retired to their bed room. In the morning when he got up he found his wife dead. He suspected that she committed suicide by consuming poison. The police suspecting it to be a case of suicide informed the Sub Divisional Magistrate, Pokran to hold inquest. P. W. 12 Smt. Kalpna Agarwal, S. D. M. , Pokran reached on the spot and inspected the site. The learned Magistrate during the inquiry as to the cause of death recorded the statements of Panna Lal vide Ex. P6 as well as the accused appellant Radhey Shyam. He stated that he used to live with his wife separately from the parents in a room. His wife was against keeping any sort of relations with his parents. In the morning when he returned from outside after answering the call of nature, his wife questioned him if he had gone to meet his parents. On not getting satisfactory answer, she became wild and caught hold his neck and punched finger nails. He also lost temper and pressed her neck. At about 10:00 the attending Compounder declared her dead. The said extra judicial confession was recorded by the S. D. M. vide Ex. P11. At about 4:00 P. M. P. W. 3 Panna Lal the father of the deceased submitted a written First Information Report Ex. P4 at the Police Station Pokran stating the his daughter Sariya Devi had performed Nata marriage with the appellant Radhey Shyam about 2 years back. Just after 3 months of the marriage it was reported that she was being assaulted by her husband, mother-in-law and Manga Ram, Sampatraj, Shaitan Mal, Manohar Lal etc. They also raised a demand of Rs. 20,000/ -. There were regular reports of maltreatment with his daughter by her husband and in-laws. A month before the incident his daughter Sariya was asked to collect Rs. 10,000/- from him. He could meet the demand to the extent of Rs. 5000/ -. On receiving the information of unfortunate incident, he along with his son reached on the spot and found the dead body of his daughter. He could see marks of strangulation on the neck. The neighbors also reported that in the intervening night of 27th & 28. 11. 1999 the appellant committed murder of his daughter Sariya Devi by strangulation. On this information police registered a case for offence under Section 304b & 498a I. P. C. and proceeded with the investigation. The post-mortem of the dead body of Mst. Sariya Devi was performed by a Medical Board headed by P. W. 8 Dr. Raghuvir Singh. The Board vide post-mortem report Ex. P. 9 noticed following injuries on the dead body of deceased Smt. Sariya Devi:- (1) Bruise 5 x 1 1/2 cm obliquely placed on Lt. side of neck on wind pipe encirclingly. (2) Abrasion 1 x 1/2 x 1/2 cm just belong injury No. (1) on Lt. side. (3) Bruises 2 x 1 cm both side of both clavicles just at lower border. (4) Abrasion 1/2 x 1/2 x 1/2 cm on chin. (5) Abrasion 1 x 1/2 x 1/2 cm just below Rt. mandible. (6) 4 x 2 cm Abrasion on Rt. side of Back. (7) Abrasion 2 x 1 x 1/2 cm Rt. knee. In the opinion of the Board Smt. Sariya Devi died due to asphyxia caused by throttling. The accused appellant was arrested on the same day. He was also medically examined. It appears from injury report Ex. P. 10 that he sustained following injuries:- (1) Abrasion 1/2 x 1/2 x 1/2 cm on upper lip. (2) Abrasion 1/2 x 1/2 x 1/2 cm on lower lip. (3) Abrasion in multiple number on front of neck.

(3.) WE proceed to deal with each of the circumstance in seriatim:- (I) Extra judicial confession made by the appellant before P. W. 12 Smt. Kalpna Agarwal; P. W. 12 Smt. Kalpna Agarwal, Sub Divisional Magistrate, Pokran has stated that the appellant in inquiry under Section 176 of the Code of Criminal Procedure stated that his deceased wife did not tolerate any sort of relations with his parents. In the morning of the incident when he returned from outside after answering the call of nature she suspected that he had gone to meet his parents. She attacked on him and pressed the neck. He also lost temper and pressed her neck. It is submitted that the statement of the appellant before P. W. 12 Smt. Kalpna Agarwal is not voluntary. The learned counsel has invited our attention to the statement of P. W. 7 Smt. Sohini Devi. She admitted in the cross examination that the police told her that after the appellant was given a beating he confessed that Sariya was murdered by him. At this stage it would also be relevant to refer to the statement of P. W. 12 Smt. Kalpna Agarwal. She has categorically stated that when she recorded the statement of the appellant no policeman was present. He gave statement on his own without any threat or pressure. She also denied the suggestion of giving beating to the appellant by the police in her presence. In view of this, in our opinion, the statement of the appellant before P. W. 12 Smt. Kalpna Agarwal is voluntary and natural. Smt. Kalpna Agarwal is an independent witness. There is no reason for her to make a false statement. Thus, we are of the opinion that the prosecution has firmly established the first circumstances against the appellant. (II) The appellant misled the police by concocting a false story of suicide and putting them on the wrong track;