Mewa Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—In the instant case, appellant, Mewa Singh, was married with Smt. Parmeshwari, twenty-years before the date of occurrence.

Occurrence, in the present case, has taken place on the intervening night of 4th and 5th of October, 2004. Smt. Parmeshwari had died in her parental house. All the relatives of Smt. Parmeshwari have failed to establish that on the night of occurrence, appellant Mewa Singh and his wife Smt. Parmeshwari were sleeping together in one room.

Though, the averment to this effect was made in the written-report (Exhibit-P/4) lodged by Omprakash (PW-7) that accused-appellant in the night had taken sister of witness i.e. his wife along, but in the trial Court this fact has not been stated by the witnesses.

The Court of Additional Sessions Judge (Fast Track), No. 2, Jhunjhunu, vide its impugned judgment dated 31.01.2006, held the appellant guilty of offence punishable under Section 302 of Indian Penal Code, and vide a separate order of even date, sentenced him to undergo life imprisonment and to pay a fine of Rs. 100/- In default thereof to further undergo one month simple imprisonment.

Aggrieved against the same, appellant, Mewa Singh, has instituted the present appeal under Section 374 of the Code of Criminal Procedure, 1973 to assail his conviction and sentence awarded by the trial Court.

In the present case, the criminal proceedings were initiated on the basis of written-report (Exhibit-P/4) presented by Omprakash (PW-7) before Station House Officer, Police Station, Surajgarh, District Jhunjhunu.

The written-report, (Exhibit-P/4) lodged by Omprakash (PW-7), when translated into English reads as under:--

"To,

The Station House Officer, Police Station, Surajgarh (Jhunjhunu)

Subject : Lodging of the report.

Sir,

It is submitted that the applicant is a resident of Village Bhavdari. Parmeshwari, sister of the applicant was married in the State of Haryana at Village Manfara, with Mewa Singh S/o. Chanduram, by caste Meghwanshi. Day before yesterday, my sister came to our house from the house of her in-laws. She was accompanied by her husband (my behnoi). Yesterday night of 04.10.2004, my sister was sleeping in the courtyard (baramda). The husband of my sister (my behnoi) was sleeping separately in another room. In the night, he woke up and took away my sister along with him. When we woke up early in the morning, they both were not found in the house. We searched for them here and there. Later-on, we found that my sister was lying dead in the bathroom. Immediately, we had gone to lodge report at Police Station, Surajgarh. We have suspicion that my sister has been killed by her husband (behnoi).

Signature

applicant

Omprakash S/o. Chandgiram, resident of Bhavdari

Dated : 05.10.2004".

On the basis of above said written report, a formal First Information Report, bearing No. 170/2004, dated 05.10.2004, (Exhibit-P/15) was registered at Police Station, Surajgarh for commission of offence punishable under Section 302 of Indian Penal Code.

The appellant was charged for commission of offence punishable under Section 302 of Indian Penal Code. The charge stated that on the intervening night of 4th and 5th of October, 2004 in Village Mauja Bhavdari inside the house of Omprakash in the bathroom, accused had caused death of Parmeshwari by throttling her neck. Therefore, he committed offence punishable under Section 302 I.P.C. and he is to be tried for the same.

The appellant pleaded not guilty and claimed tried.

Thereafter, prosecution commenced its evidence.

Rajendra Singh (PW-3), the brother, Smt. Lichhma (PW-4), the mother, Satveer (PW-5), Santosh Kumar (PW-6), Omprakash (PW-7), the brother, Smt. Shakuntala (PW-10), bhabhi, Smt. Ved Kaur (PW-14), bhabhi and Vinod (PW-16), the son of the deceased were examined to say that the dead-boy of Smt. Parmeshwari was found inside the bathroom of her parental house.

We shall briefly notice the statement of the relatives of the deceased, Smt. Parmeshwari.

Rajendra Singh (PW-3) stated that on 03.10.2004 his sister and her husband, Mewa Singh came to their house. They slept in the house and the witness also retired to bed. His mother woke him up early in the morning and informed that sister Parmeshwari and her husband, Mewa Singh are not present in the house. The witness along with his brother went to search for them. When they returned to the house, then he came to know that the dead-body of his sister was lying in the bathroom. The sister was found dead. There were injury marks on the neck of Parmeshwari. She was killed due to strangulation. Mewa Singh was not found there. Mewa Singh was an alcoholic. His behaviour with his sister was not good. He often used to harass and maltreat her sister. When in the night, family had gone to sleep, at that time, accused was present, but in the morning, he was not found in the house.

In cross-examination by the defence counsel, this witness stated that Parmewahri was married with accused from last twenty-years ago. He further stated that . On which date, his brother-in-law (Jija) Mewa Singh used to take drink, this fact was not known to him. The husband of sister and this witness had slept at 10:00 P.M. In the morning at 07:00 AM., his mother woke up him. He stated that he is not aware as to on which date, accused had harassed his sister. This witness stated that the fact that Mewa Singh had killed his sister Parmeshwari is only based on hearsay evidence. This witness stated that on 03.10.2004 he had not seen his sister and brother-in-law (behnoi) quarrelling. . He further stated that . This witness stated that the fact that sister was harassed and maltreated was disclosed to the witness by the sister. This fact was alone told to the witness by her sister and was also known to other family members. This witness further stated that he had not seen accused throttling the neck of the deceased. Lastly, this witness stated that he has deposed in the Court on the basis of hearsay evidence. .

Lichhma, the mother of the deceased, Parmeshwari appeared as PW-4 in the Court and stated that Parmeshwari was her daughter. Parmeshwari was married with accused, present in the Court. About twelve-months ago, her daughter Parmeshwari and accused Mewa Singh had come to the Village. They stayed for night in the house. On the night of 04.10.2004, they also slept in the house after taking meals. Mewa Singh, accused had slept inside the room, whereas she and her daughter had slept in the courtyard (baramda). This witness further stated that she had not seen anything. Lastly, this witness stated that in the morning, neither she found Parmeshwari nor appellant Mewa present on their cot. Prakash and Rajesh were informed about this fact and they searched for Parmeshwari and her husband. This witness further stated that when her daughter-in-law was brooming chowk of the house. Dead-body of the daughter of witness was found in the bathroom. Accused Mewa was not found there. Name of her daughter-in-law is Shakuntala.

In cross-examination, this witness stated that her daughter was married with Mewa Singh twenty-years ago. No quarrel had been taken between Mewa Singh and Parmeshwari. They were living happily. This witness stated that her son-in-law was an alcoholic and in last twenty-years, he had never raised any demand of dowry. Her daughter and son-in-law had slept at 10:00 P.M. This witness stated that she woke up in the morning at 07:00 A.M. She had not taken bath. She never saw any dispute between Mewa Singh and her daughter Parmeshwari. For about one hour, they searched for daughter and Mewa Singh.

Satveer (PW-5) stated that the distance between his house and the house of Omprakash (PW-7) is fifty to sixty feet. Omprakash (PW-7) is a real brother of Parmeshwari. In the early morning, people had gathered in front of the house of Omprakash. The dead-body of Parmeshwari was found in the bathroom. This witness stated that neither he had seen anything nor heard anything. Lastly, this witness stated that he was not aware regarding the cause of death of Parmeshwari.

Santosh Kumar (PW-6) stated that he was present at his house. He had not seen anything. This witness was declared hostile by the prosecution and he has not supported the case of the prosecution.

Omprakash (PW-7), being first informant, deposed in the Court that Parmeshwari was his sister. Parmeshwari was married at Village, Manfara with Mewa Singh, who is present in the Court. Mewa Singh along with his wife Parmeshwari came to reside at his in-laws house. On 04.10.2004 they both stayed at their house. Mewa Singh had taken liquor on 03.10.2004. He wanted to return to his house. On asking of witness, he stayed at the house of in-laws on 04.10.2004. After taking liquor, he had gone to the Village. He came at around 10:00 A.M. morning. He was offered meals. He refused the same and after half an hour later, he had gone to the Village. He returned in the evening at 07:00 P.M. He had not taken meals. He went for sleep to his room. Parmeshwari, sister of witness slept in the courtyard. They all retired to bed at about 09:30 - 10:00 P.M. In the morning, he woke up, his wife made a tea for him. The witness asked his wife to offer tea to Mewa Singh. Mewa Singh was not found in his room. His sister was also not found in the courtyard. This witness and Rajendra searched for Mewa Singh and Parmeshwari. His wife was brooming the courtyard. She saw the dead-body of Parmeshwari in the bathroom. Her tongue was coming out. There was mark on the neck. After seeing the dead-body, the members of the family started weeping. The Police was informed. The witness admitted lodging of written-report (Exhibit-P/4).

A perusal of the examination-in-chief of the witness reveals that the witness has not stated that accused had called his wife in his room, but it was so stated in the written- report (Exhibit-P/4). The witness intentionally, purposefully or by over sight had not stated before the Court that the deceased and accused were together. Rather in specific terms, this witness stated that .

Hanuman Singh, appeared as PW-8 and stated that Parmeshwari was the sister of Omprakash. He knew Parmeshwari. Parmeshwari had died. Regarding death of Parmeshwari, report was made to the Police. This witness had attested the Inquest of Parmeshwari. Ranjeet also attested Inquest of Parmeshwari.

Shakuntala (PW-10), the wife of Omprakash stated that Parmeshwari was her nanad, being sister of her husband. Smt. Parmeshwari was married with Mewa Singh, accused. On 03.10.2004 Parmeshwari and her husband Mewa Singh had come to her Village Bhavdari. On 04.10.2004 they stayed in their Village. On 04.10.2004 after taking meals, they retired for sleep. Mewa Singh slept in a room, whereas Parmeshwari slept along with her mother in the courtyard. In the morning, both Mewa Singh and Parmeshwari were not found. They searched for them. Later-on, the dead-body of Parmeshwari was found in the bathroom.

Ramesh Kumar (PW-13), being photographer had taken photographers of the place of occurrence.

Smt. Ved Kaur (PW-14), being another bhabhi of deceased Parmeshwari, stated that Parmeshwari was her nanad. She was married with Mewa Singh. They had come to their Village on 03.10.2004. They stayed in their house for 04.10.2004 also. On the night of 04.10.2004, Mewa Singh slept in a room. Parmeshwari was also slept in a room. It was again said that Parmeshwari slept in the courtyard.

In cross-examination, this witness stated that her nanad, mother-in-law and nephew all relatives were sleeping in the courtyard. This witness stated that at what time, Mewa Singh left house, this fact is not known to her. This witness further stated that . This witness stated that she had not heard any shriek or cry.

Dr. Girdhari Lal Mourya (PW-15) had conducted autopsy on the dead-body vide Exhibit-P/26. As per his opinion, the cause of death was Asphyxia due to throttling.

Vinod (PW-16), being son of deceased, stated in the Court that on 04.10.2004 his mother and father had come to the parental Village of her mother and after taking meals, they had slept. When they woke up early in the morning, father and mother were not seen. Later-on, the dead-body of his mother was found.

In cross-examination, this witness stated that his parents were living happily. This witness stated that while he was residing in the Village, they used to quarrel. However, on the day, they came, their relations were cordial. This witness further stated to be correct that in the room in which his father was sleeping, in case some conversations take place then it will be heard in the adjacent room in which his maternal uncle and maternal aunt were sleeping.

In cross-examination, witness stated

We need not notice the statement of the other witnesses, who have participated in the investigation.

Mr. Sanjay Kumar Mahla, the learned counsel appearing for the accused-appellant, has submitted that nobody has seen the occurrence, no person has seen the deceased going towards the bathroom and the fact that the deceased was throttled.

It is further submitted by the learned counsel that Section 106 of the Indian Evidence Act alone cannot be invoked against the appellant, as the burden is equally upon all members of the family to explain as to how Parmeshwari has died in her parental house.

Mr. Aladeen Khan, the learned Public Prosecutor appearing for the State, has very vehemently contended that we should assume that the crime has been committed by the appellant alone and by nobody else.

We would have assumed the same for the sake of arguments. Had there been any material on record to infer estranged relationship between the husband and wife. It is true that witnesses have stated that appellant was alcoholic and his wife (deceased) used to provide money for purchasing liquor, by doing labour work, but on the day of occurrence, there was neither any tiff nor quarrel between husband and wife. Nobody has stated anything to this effect.

Smt. Lichhma (PW-4), the mother of deceased, in the Court has stated that her daughter was married with the appellant twenty-years ago. They never used to have quarrel or any dispute between them. They were living happily. In the last twenty-years, Mewa Singh had never demanded dowry. However, her son-in-law was an alcoholic.

There is a peculiar feature of the case, which we cannot ignore, all the witnesses have stated in the Court that deceased Parmeshwari slept along with her mother in the courtyard (baramda). Accused slept in a room. Dead-body of wife of accused has been found in the bathroom. The mother of deceased will come to know, in case deceased was called by her husband.

Though, Omprakash (PW-7), in the written-report (Exhibit-P/4) had stated that accused called his wife in the night, but this fact has not been stated in the Court by any witness. What is stated in the written-report is not a substantive piece of evidence and it can only be used to corroborate the evidence of witnesses.

There is no substantive evidence available on record that Parmeshwari had gone to the room of the accused or anybody had seen them together. From mere assertion of the witnesses that the accused in the morning was not found in the house of the in-laws, we cannot infer that offence has been committed by him.

A perusal of the evidence of witnesses reveals that they have made more effort to screen the appellant instead to implicate him. Evidence of mother-in-law, son and one brother of the deceased have demolished the alleged motive.

We have perused the recent judgment of the Hon''ble Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , wherein it has been held that if the husband and wife have been found together in the room, a duty is cast upon the husband to explain as to how his wife had died, especially when this being special circumstance was in the knowledge of the husband.

In the present case, the entire prosecution evidence is otherwise, as it has been stated that the husband was sleeping in the room and wife was sleeping in the courtyard (baramda).

Furthermore, there is no evidence that they were last seen together. Therefore, we cannot stretch the case of the prosecution and invoke Section 106 of the Indian Evidence Act when there no basis for the same has been laid by the prosecution.

We also cannot ignore the fact that in the present case, death has not taken place in the matrimonial home. Parmeshwari had died in her parental house. The possibility cannot be ruled out that the members of the family to screen themselves from the needle of suspicion had pointed out the same towards husband. The mother-in-law of the present appellant has stated that the relations between husband and wife were cordial. The son of the deceased and accused-appellant has also stated that when they came together to the parental village of Parmeshwari, deceased, their relations were cordial.

There is nothing on record that as to what prompted the appellant to commit the crime. No motive is forthcoming. The origin and genesis of the occurrence has also not been proved by the prosecution. Merely because accused is a husband and alcoholic, we cannot assume that he has committed the murder.

In the present case, presumption under Section 106 of the Indian Evidence Act cannot be invoked and since marriage was twenty years old, presumption under Sections 113-B and 113-A of the Indian Evidence Act is also not attracted.

Two circumstances, one appellant is husband and second on the next day, he was found missing are not sufficient to complete chain of circumstances to come at conclusion that appellant alone and nobody else has committed the offence.

Suspicion, however, grave cannot take place of proof, therefore, merely on basis of suspicion, we cannot sustain conviction of the appellant. Therefore, as a matter of abundant caution, we shall extend benefit of doubt to the appellant, by setting aside his conviction and sentence.

Consequently, present appeal is accepted and the appellant is acquitted of the charges.