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Judgment
The instant appeal is directed against the
judgment dated 29.9.2008 passed by Additional District and
Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No
2/2008 by which the accused-appellant is convicted under Section
302 of IPC with life imprisonment and with a fine of Rs.5,000/- in
default thereto further to undergo for six month simple
imprisonment.
The contents of Ex.P.1 F.I.R. No.611/2007 reads
as under :-
"VERNACULAR MATTER OMITTED"
This F.I.R was submitted by Smt. Kanta Srimali
wife of Shri Prabhulal Srimali on 27/11/2007 at 11.45 a.m. at
Police Station Ambamata, Udaipur, which was registered under
Sections 498A, 306 of IPC and investigation was made, post
investigation I.O submitted charge sheet and trial court arrived at
the aforesaid findings of guilt, during the trial, prosecution
produced twenty witnesses and defence also produced one
witness.
Heard submissions of rival sides, learned amicus-
curiae representing the appellant has contended that learned trial
Court has committed error in examining the evidence and has not
correctly appreciated the evidence, appellant-accused never
committed alleged offence, but performed all the death rituals
with social norms. The nuptial was through affairs, so reason of
any discord or demand does not arise. The couple was living quite
comfortably and begot kids out of the wedlock, theory of Sambal
Seva Mandir and women organizations is concocted and hatched
to malign the dignity of the appellant in order to harass, there is
no iota of truth in the alleged story and findings of the trial Court
are not correct, so the appeal be allowed and the impugned
findings of guilt be set aside, in support of submissions, learned
counsel for the appellant has placed reliance on the judgment
Jose @ Pappachan vs. Sub Inspector of Police, Koyilandy &
Anr . (2016) 10 Supreme Court Cases 519.
On the other side, learned public prosecutor has
contended that the medical evidence is supported with other
evidence, which establishes that the appellant-accused killed his
wife and there were several injuries found on her body and she
was killed and was found to have strangulated, appellant was
trying to perform last rites latently, but Seva Mandir Women
activities timely informed police authorities and on postmortem
the things were found contrary, there was family discord,
deceased had also approached Sambal Seva Mandir for protection
and an application to this effect was also earlier moved by the
deceased, upon which reconciliatory efforts were made and the
accused-appellant assured that nothing untoward will happen in
further, saying so he took away his deceased wife from Seva
Mandir, who was subsequently eliminated within few days. There
is reliable and clinching evidence against the accused-appellant, so
there is no wrong in the findings of learned trial Court, appeal
lacks merit, so it be dismissed.
Perused the record and gone through the evidence
cautiously, which is as under:-
PW. 2 Kanta Srimali-complainant author of F.I.R.
Ex.P.1 has said that the event relates to 27/11/2007 at about 9
a.m., a message was communicated from Dewali that "Bansati
Devi" W/o Manoj Kumar died and without informing to anybody,
her husband Manoj Kumar was taking the body to crematorium
and they suspected that Manoj killed her. Six years back, they
were married and after marriage, Manoj used to beat his wife and
a report was lodged at thana Ambamata and at Mahila thana as
well as at Seva Mandir, she has further said that on receiving the
information, they visited the spot and suspected that the lady was
killed by Manoj, then Ex.P.1 report was lodged at thana
Ambamata, which is Ex.P.1, Ex.P.2 is Panchnama, she has also
said that on witnessing the corpse signs were there on the neck
and signs of injuries were also there on the head and elbow as
well as on feet, after that neighbours performed her last rites in
her cross-examination, she has said that Basanti was witnessed by
them in mohalla meetings and the information was given to her by
Lata Jhala.
She has further said that it was told to her by
Lata Jhala that marriage of Manoj was performed 5-6 years back.
She has also said that she witnessed the dead body on Mokshrath
and several people were there around it. Police took away the
dead body to mortuary and Manoj was taken to police station. She
has further said that the FIR was written by her before C.I. at
thana and has denied that it was scribed on dictation of C.I. She
has further said that she signed on panchnama in the hospital at
6.00 p.m. and postmortem was conducted after panchnama, dead
body was obtained by area people.
PW-1 Smt. Lata has said that on 27.11.2007, a
lady residing near the house of Manoj came and informed that
Basanti @ Maulika was murdered, then she asked to initiate police
action, she refused saying that Manoj used to hurl abuses after
consuming liquor and was habitual of beating Basanti. She has
further said that then she informed Amba Mata Police regarding
the murder of the lady. Manoj has called a "moksh rath", prior to
arrival of police and had got the body laid there with support of
labours. She has further said that she got the moksh rath stopped
throubh Bhanwar Ji Comrade, Kanchan Devi and Leela Devi and
then she phoned to her office, pursuant to it, Smt. Kanta Shrimali,
Rukmani Devi and Lali Devi came and policemen also came there
and took Manoj and his mother to Amba Mata Thana and carried
away the body to hospital for medical. FIR Ex.P/1 was lodged
through Secretary. She has further admitted her signatures on
Panchnama Ex.P/2 and Police Report Ex.P/1. She has said that
she had seen the dead body, which was having bruises on neck,
arms and legs; elbows were also injured and blood was there in
the foot fingers, there were signs of fingers and thumbs on the
neck.
She has also said that Manoj used to threat
through his knowns, in her cross-examination, she has said that
she knows Basanti for last five years because she used to pass
from there and often complained, while sitting outside her house
that her husband was liquor addict and used to beat her and was
not working and this was conveyed to her 6-7 months ago.
Expressing her ignorance against the relatives
and actual earlier place of deceased''s residence, she has said that
she heard that "Basanti" was married with Manoj and Basanti told
her that Manoj often beats her.
She has said that Manoj did not convey regarding
hanging but had said that Basanti died of stomach-ache. She has
also said that Basanti was having two kids and Ex.P/1 was written
by Smt. Kanta Shrimali before several women activists including
Rukmani Devi, Leela Devi and Heera Bai and they visited mortuary
alongwith police. She has also said that the body was having signs
of fingers and thumbs and the body was postmortemed by doctor.
She has further said that all the women had been to mortuary.
She has further said that she did not see Manoj
killing Basanti and has also said that four labours were there
on moksh rath, "Manoj himself loaded the body and sat
alone thereon". She has further said that she has tendered her
statements for sake of independent and transparent inquiry.
It is pertinent to mention that FIR was
lodged by "Sambal" Seva Mandir, Mahila Alp Avas Grah
Activist, a women rehabilitating agency stated to be aided
by Central Social Welfare Board.
PW-3 , a neighbor of accused Manoj has said that
on date of 29th, policemen of Amba Mata had been there and
asked for co-operation and has admitted his signatures on Ex.P/3
spot map. He has also said that after calling moksh rath, Manoj
was taking her dead body alone, then people stopped and several
individuals gathered. He has also said that police had conveyed
regarding existence of "fan" inside, on that basis hanging was
suspected.
PW-4 is a photographer who has said that he was
called by Amba Mata Police Station. Photoraphs are Ex.P/5A to
Ex.P/20A and negatives are Ex.P/5 to Ex.P/20, bill relating to the
photographs is Ex.P/21, ''A'' to ''B'' is his signatures.
PW-5 Heeralal is a saw-miller who has said that
his mill care-taker had informed him regarding timber purchase,
so, he asked to deliver the same. He has further said that five
quintal timber wood was given for cremation, in his cross-
examination he has said that two days later to the sale, police
came for his statements. Dunga Ram, the care-taker was just
asked to deliver the timber after weighing.
PW.6 Shri Jagdish Meena has said that the
matter relates three months back and a call on the phone of
"Mokshrath" came and Manoj Sharma name was conveyed, he
went with the vehicle there, Manoj Sharma brought the body, in
the meanwhile area people told not to take the body, he has
further said that four people had brought the body then area
people said that you would not leave till police action is complete,
then police people came and the body was taken to hospital
mortuary and after leaving the body there, he left.
PW.7 Smt. Nisha Field is a significant witness
being counsellor of "Sambal" Mahila Alp Seva Mandir, she
has narrated enlightening factual aspects regarding on-going
couple strife and hearing of the same and further resolving their
dispute through counselling and she has said that on 13/12/2005,
Basanti Sharma came to their Seva Mandir Office, her case form
is Ex.P.23, its photocopy is Ex.P.23A, which contains her
signatures and C to D is signature of Basanti and has said that
contents from E to F as written in Ex.P.23 are correct and copies of
this were given to police people of thana Ambamata, she has
further said that Ex.P.24-letter, contains signatures of Shakutala
Co-ordinator worked under her, so she knows her signatures, its
photocopies are Ex.P.24A, she has further said that first interview
report is Ex.P.25, which contains her signatures from A to B, its
photocopy Ex.P.25A and phone report is Ex.P.26, its copy is
Ex.P.26A, she has further said that she had written a letter to
Manoj, which is Ex.P.27, its copy Ex.P.27A, contains her signature
from A to B and joint meeting report is Ex.P.28, its copy is
Ex.P.28A, meeting was conducted on 25/12/2005, which contains
signature of Manoj Sharma from A to B and C to D are Basanti''s
signature, photocopy E to F contains her signatures, she has
further said that on 24/11/2007, Basanti and Manoj were
called and couple was negotiated upon, its report is Ex.P.29,
its copy is Ex.29A, which contains signatures of Manoj from A to
B, its photocopy is Ex.P.29A, which contains C to D her signatures.
She has further said that first, meeting was
conducted on 13/12/2005 and during that time "Sevarthi
Basanti" had told that her husband used to beat her after
consuming liquor and "Saas" also beats and threat to oust
from home and after that her husband Manoj was called
and reconciliatory efforts were made, husband of Sevarthi
assured that he wanted to live with her wife and no further
beating will be given, she has further said that on the wish
of Sevarthi, compromise was made and it was reduced into
writing and they were permitted to go to live together.
On 07/01/2006, follow-up was made by her and
Sevarthi herself came in their office for follow-up, she had again
complained of some annoyance and vexes, she has further said
that she told her that her husband was still beating her and
daunting to oust and she expressed doubt that she will be ousted
from house and the premises might be given to his sister, so again
counselling was conducted and it was advised to her not to bother
on count of premises and live there after gaining confidence and
love by winning over the hearts of others.
"She has further said that lastly on
21/11/2007, she had come to them then she was badly
anxious and complained that she was detained in the room
for last three days and could only be there by escape with
difficulty, her "husband and Saas" got her detained there,
she has further said that it was also informed that her
husband was beating her for last three days and had
apprehended that if she goes there, then she will be killed,
but for sake of her kids, she was inclined to go there, she
has further said that it was advised to her that she could
stay there for sometime, if such untoward was suspected
by her, but she did not yield".
She has further said that her husband was
contacted and a letter was sent to him and again
reconciliatory dialogue was made on 24/11/2007 then, her
husband Manoj had assured that he will go on work and
will not beat her nor will consume liquor, she has further
said that :-
"VERNACULAR MATTER OMITTED"
She has further said that :-
"VERNACULAR MATTER OMITTED"
and has also said that :-
"VERNACULAR MATTER OMITTED"
and has denied not to conduct any counselling.
PW.8 Santosh has accepted his thumb impression on
Ex.P.30. PW.9 Arvind is a landlord of accused person and has
accepted renting his house to the accused for last one year and
while cross-examined, he has said that in the morning, he heard
that Basanti got hanged by fan.
PW.10 Dr. Smt. Rashmi Khatri a member of
postmortem board has said that the body of deceased Basanti was
having nine injuries and has said that acamyosis was there on the
trachea and larynx, hemorrhage was around trachea and hyoid
bone was fractured from right, injuries were fresh and were ante-
mortem and were caused by some blunt object, they were simple
from 1 to 5 and injury No.6 to 7 were grievous, which were life
threatening and because of that death by choking resulted and
according to the opinion of the board, the cause of death was
asphyxia and she has further said that:-
"VERNACULAR MATTER OMITTED"
PW.16 Anis Ahmed another doctor
conducting autopsy and member of the Board. Dr. Anis Ahmed has
said that on 27/11/2007, he was medical jurist and had conducted
postmortem of Basanti Devi wife of Manoj Sharma, he has
narrated that the body was having seven injuries and all the
injuries were antemortem caused by blunt object and injury Nos.6
and 7 were grievous and life threatening, death was due to
asphyxia and has said that postmortem Ex.P.32 is written by him,
which contains his signatures, significantly on a Court question,
this medical expert has said that the injuries as mentioned in
Ex.P.32 from 1 to 7 may not cause from fan hanging and if a
person hangs by fan, then death may result because of knot
hanging, on his cross-examination, he has also said that:-
"VERNACULAR MATTER OMITTED"
PW.11 Raghuveer Singh has said that a letter
was seized on 1/12/2007 and cover of Sari was also seized on
03/12/2007, the seizure letter is Ex.P.33, which contains his
signature from A to B and Sari seizure is Ex.P.34, fard seizure is
Ex.P.33, spot map is Ex.P.35 and fard seizure is Ex.P.34, its spot
map is Ex.P.36, which contains his signature.
PW.12 Hari Singh constable has said that on
1/12/2007, he was a constable at Ambamata Police Station and
had gone with S.I. Raghuveer Constable to the house of accused
Manoj, on his information an letter was given by him from the
pocket of his jacket, its fard jabti is Ex.P.33 and paper seized is
Ex.P.37, in his cross-examination, he has also said that room from
where Ex.P.33 was recovered., was having a joint-photo Couple
installed of Manoj and his wife.
PW.13 Prem Obrawal has denied recovery of
any Sari, but has accepted his signature on Ex.P.34 from C to D
and has also said that the spot recovery memo of Ex.P.36 contains
his signatures.
PW.14 Dal Chand has said that he was head
constable at thana Ambamata on 07/12/2007 and in pursuance to
oral order of SHO, he had given two sealed packets to constable
Hansraj for depositing in the FSL and these packets were entered
in Ex.P.38 at S.No.474, which contains his signature from C to D,
its copy is Ex.P.38A, he has further said that Hansraj rendered its
receipt after depositing it.
PW.15 Narendra Singh has said that on
03/12/2007, he was a constable at Police Station Ambamata, on
that day SI Shyamlal deposited two sealed packets pertaining to
case No.611/07, which were entered in Malkhana register Ex.P.38
at serial No.474, the copy of it is Ex.P.38A.
PW.17 Hansraj constable has said that on
06/12/2007, he was posted at Police Station, Ambamata and after
obtaining two packets from Malkhana incharge, got Ex.P.39
forwarding letter issued from SP Office, which contains his
signatures and the packets were deposited with F.S.L Udaipur on
07/12/2007 in perfect condition vide Ex.P.40 receipt, which was
rendered to the Malkhana incharge, who entered in the register,
admitting Ex.P.41 he has further said that the packets were
deposited in perfect sealed condition and has admitted his
signatures on Ex.P.38 Malkhana Register from G to H.
PW.19 Bhagwat Singh Hinger SHO of
Ambamata thana has said that on 27.11.2006, he was posted at
Ambamata thana, on that day at 10.45 Smt. Kanta W/o Prabhulal
presented a report Ex.P.1 before him, which contains his
endorsement and signatures, which was registered as FIR No.
611/2007 under section 498A and 306 of IPC, its chalk report is
Ex.P. 47, which contains his signatures, while cross-examined he
has said that who had written the said report is not known to him,
it was presented before him as written.
PW.20 Bardi Bai midwife has said that she
knows Manoj and Basanti and she had conducted delivery as a
midwife to Basanti, she has further said that "Manoj said her
regarding death of his wife and came to her and asked her to
accompany, she went to Manoj''s residence and found that Basanti
was lying dead there, mother of Manoj was sitting beside and she
was weeping and she has further said that on observing the body,
she got puzzled and left".
PW.18 Shyam Lal is an investigating officer, who
has ratified documentary exhibits of investigation and has
narrated conducting of investigation and the chronology thereof he
has also said documents and exhibits relating to Seva Mandir from
Ex.P.23A to 29A, he has also asserted process of recovery and
facts pertaining to recovery and information as provided by the
accused under Section 27 of Evidence Act. He has also said that
he had seen injuries on the body of the deceased Basanti and
details relating thereto has been mentioned in Panchayatnama
and has said that on the basis of postmortem report and
investigation he had found case made out under Section 302 of
IPC in lieu of 306 of IPC.
He has further said that on the basis of
investigation, he had found that offence was committed and on
getting it confirmed accused Manoj Sharma was arrested vide
Ex.P.42
Perusal of statements made under Section 313 of
CrPC discloses that defence of alibi has been raised by the accused
which does mismatches with the available testimony.
DW.1 Surya Veer Singh Sharma has said that
Basanti Devi and Manoj Kumar were living happily, but he has
also said that character of Basanti was not good and
candid. He knows Basanti on Mokshrath and Manoj Sharma was
not even informed, on information when Manoj Sharma came and
opposed it, then a false case was registered against him by these
ladies, in his cross-examination, he has also said that on that day,
he was not present at home and was away to his duty, just after
this statement, he has again said that he was present at home,
contradicting his earlier version, he has also said that it is correct
that he did not participate in cremation, testimony of this witness
does not inspire confidence and appears to be rather flimsy, rather
it also goes to say that deceased''s alleged character of easy virtue
could have been a reason for discord and deliberate beatings.
Ex.P.48 FSL report shows that Ex.P.1 article
1 packet marked as ''A'' saree and article 2, packet marked as ''B''
about the pieces of cutting bed cover (saree) have been found
stained with ''A'' group blood.
Ex.P.32 autopsy report has got details of
injuries, which were found antemortem and have been detailed as
under :-
Abrasion 2X1 cm left side forehead-red.
Three abrasions 0.3X0.3 each on right angle of mouth, rt side upper lip area near rt rhinal rd.
Abrasion 2X1 cm left lower eye lid lat - red
Abrasion 2X2 cm outside of left elbow lat - red
Bruise 5X4 cm rt. hyperemesis (rt hand) red
Bruise 4X2 cm just left lateral to larynx - red
Bruise 4.5X 2 cms just rt lateral to Thyroid
cartilage - red
On the instance of information provided
under Section 27, of the Evdience Act Ex.P.37, a letter addressed
to accused Manoj Sharma by "Sambal", Short Stay Home, Seva
Mandir, Udaipur has also been recovered, which reads as under :-
"VERNACULAR MATTER OMITTED"
Perusal of this letter shows that "Sambal",
Short Stay Home, Seva Mandir, Udaipur had sent this letter to
Manoj Sharma sharma, calling him to attend their office on
23/11/2007, which goes to reveal that matrimonial dispute was
there between the couple and deceased Smt. Basanti Sharma
went to "Sambal", Short Stay Home, Seva Mandir, Udaipur
complaining the same seeking their help, on which Manoj Sharma
was summoned by "Sambal" Stay Home, Seva Mandir, Udaipur''s
counsellor for hearing in order to resolve Couple acrimony.
Analysis of entire evidence establishes that
there was an ongoing couple relation strife and the deceased was
being regularly harassed, which constrained deceased Basanti to
seek help of "Sambal" to sort out their sour-relations and strife,
the deceased, while lodged such a grievance before Sambal then,
Seva Mandir service providers called accused-appellant Manoj for
settlement of their ongoing strife and this aspect has also
emerged from the testimony of Sambal, Seva Mandir lady worker
counsellor PW.7 Nisha Field, who has ratified and confirmed
veracity of Ex.P.27, Ex.P.28 and Ex.29 and Ex.P.29 shows that
such a compromise was arrived at between the couple on
24/11/2007 and the couple decided to live together without
further acrimony, likewise such an understanding was earlier
arrived at between the parties through, "good-offices" of Sambal
Seva Mandir on 25/12/2005.
Ex.P.29 is a vital document, which
indicates that three days retro to the incident a
compromise took place through the efforts of Sambal, Seva
Mandir between the couple to live together and Ex.P.29 is
well proved by PW.7 Smt. Nisha Field, who has specifically
narrated in her testimony that on 24/11/2007 Basanti and
Manoj Kumar were called to have a dialogue between the
parties and its report is Ex.P.29, which contains signature
of Manoj from A to B with respect to this the witness has
also said that on 24/11/2007 a settlement process-talk
was got conducted in which, Manoj had assured that he
would not consume liquor ahead, attend his job and would
not perpetrate beatings, she has also said that when on 27,
while they were to proceed for follow-up, the lady was
killed, so far as investigation is concerned everything relating to
the documents pertaining to Sambal, Seva Mandir in context to
matrimonial dispute and filing of grievance before Sambal, Seva
Mandir and efforts made by this institution for dialogue and to
resolve the dispute, are also ratified and confirmed by the
investigating officer, the defence has produced DW.1 Surya Veer
Singh, who has rather accepted a fact of alleged unchastity of
deceased, by saying that deceased Basanti Devi was not enjoying
a good character and such was a say in the area, which also hints
and fortifies vindictive motive to eliminate the suspect, which too
has not been discharged by the accused-appellant.
As per testimony of PW.20 Bardi Bai a
midwife, Manoj came to her to come to his home because his wife
died and PW.6 Jagdish Kumar Meena driver of Mokshrath has also
said that the Mokshrath was called by Manoj Sharma and he went
to buy cremation timber as per the say of PW.5 and entire
evidence shows that he got four labours to carry and keep the
dead body in the Mokshrath latently, it has also emerged from the
evidence that instead of truth he just narrated to the masses that
his wife died of alleged stomach ache, which shows that significant
truth was concealed by accused-appellant.
According to the medical report body of
deceased was having multiple injuries and doctor has specifically
opined being PW.16 Dr. Anis Ahmed that injuries as mentioned in
Ex.P.32 from injury No.1 to 7 were antemortem and injury Nos. 6
and 7 were fatal and injury Nos 1 to 7 may not be caused by
hanging with "Fan" by self hanging.
PW.10 Dr. Rashmi Khatri has also said that
hyoid bone of the deceased was found fractured, she has also
opined that the "cause of strangulation was found to be choking
by hand".
Chain relating to link evidence pertaining to
deposit of samples of the seizure has also remained unsegregated.
Analysis and appreciation of entire aforesaid
reveals that the case of the prosecution has remained proved with
trustworthy and reliable evidence and it is apparent that the
deceased was subjected to beatings and harassment. She
presented her grievance before the Sambal, Seva Mandir again
only three days back, she was brought from that institution, where
she constrained to lodge temporarily with an assurance that she
will be given amicable treatment and the appellant will mend by
not indulging in consuming liquor and will resume working and
soon in a span of three days, she lost her life in tragic way with
the hands of her own spouse.
It has been distinctly emerged that the
deceased died within seven years of her marriage and she was
under the pangs of continuous harassment and beatings and only
three days retro to the incident a compromise was arrived at
between the couple and accused gave assurance of smooth life
without any beatings. Presumptions prescribed under the Evidence
Act in view of Section 106 and 113B also goes against the
Appellant-Accused.
Prosecution has been able to prove its case,
in catena of judgments, it has been observed by Hon''ble Supreme
Court that befitting sentence must be penned down in order to
permeate message that perpetrator of crime are to face, similar
kind of stringent punishment.
In Sevaka Perumal v. State of T.N . (1991) 3 SC
471, the Hon''ble Supreme Court has cautioned :-
"Undue sympathy to impose inadequate sentence would do more harm to the justice (delivery) system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the Courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every Court to award proper
sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
and Hon''ble Supreme Court has held in Abdul
Waheed vs. State of Uttar Pradesh, 2015 Supp AIR (SC)
2154 undue sympathy will do harm to criminal justice system and
in Purushottam Dashrath Borate & Anr vs. State of
Maharastra, 2015 0 AIR (SC) 2170, Hon''ble the Supreme
Court has observed that sentencing policy should aim to protect
the society and stamp out criminal proclivity and Court should
remain stern where required.
Prosecution has tendered clinching and reliable
evidence, which is duly supported with the medical evidence,
hence there is no error in the impugned judgment.
We are of the view that learned trial Court has not
committed any error or perversity in ordaining the judgment
impugned, so findings passed by learned trial Court does not
require any interference.
Hence, the appeal lacks merit and is hereby
dismissed.