Smt. Savitri Devi vs State Of Rajasthan

By this appeal, a challenge is made to the order dated 06th March, 2017 passed by the Additional Sessions Judge No.12, Jaipur Metropolitan in Session Case No.59/2012, whereby, the accused-appellant has been convicted and sentenced as under :

U/s 302 IPC :- Imprisonment for life and fine of Rs.20,000/-, in default of payment of finem further 06 months simple imprisonment ;

U/s 120-B IPC :- Imprisonment for life and fine of Rs.20,000/-, in default of payment of fine, further 06 months simple imprisonment ;

U/s 201 IPC :- 03 years R.I. and fine of Rs.5,000/-, in default of payment of fine, further 01 month's simple imprisonment.

Brief facts of the case :

An FIR was registered by the Police Station, Chomu on a written report of the complainant Jagdish Prasad Kumhar on 10th January, 2011. It was contended that his brother-in-law Kaluram has been killed by his sister Savitri Devi with the help of other person. The dead body has been suppressed in an Almirah.

The complainant received a telephone call from his sister Savitri Devi on 09th January, 2011. He was called to discuss a family issue. The complainant reached to the accused's place. He was informed that on account of a dispute, his brother-in-law received injuries at such a place, which resulted in his death. Due to fear, the dead body was suppressed in an Almirah. The complainant came in a fear after receiving the information, thus went back to his village. After discussing the issue with the renowned persons of village, the FIR was lodged on the next date. The date of the occurrence was given to be of night of 05th and 6th of January, 2011.

The police registered a case for the offence under Sections 302 and 201 IPC and, after the investigation, the charge sheet was filed. The Court of Magistrate No.25, Jaipur took the cognizance and as the case was exclusive triable by the Court of Sessions, it was committed to the said Court.

The trial Court framed charges on 24th September, 2011 for the offence under Sections 302, 201 and 120-B IPC against the present accused and one Mangal Chand @ Mangla Ram. The charges were explained to the accused and, on its denial, the trial commenced. The prosecution produced twenty two witnesses apart from thirty five documents to prove their case. The accused produced six documents in defence. After marshalling the evidence, the trial Court acquitted Mangal Chand @ Mangla Ram while convicting the present accused-appellant for the offence under Sections 302, 201 and 120-B IPC and sentencing her, as described earlier.

It is a case where the allegation against the accusedappellant is for murder of her husband Kaluram. After murder, the dead body was suppressed in an Almirah. A brick construction was raised thereupon to suppress the Almirah. The occurrence said to have taken place in the night of 5th and 6th January, 2011.

The complainant Jagdish Prasad Kumhar was called by the accused-appellant on 09th January, 2011 to discuss the family dispute and, therein, she made extra judicial confession about the occurrence at her instance. The FIR for the occurrence was lodged thereupon on 10th January, 2011. The prosecution could prove the case against the accused-appellant beyond doubt, thus she was convicted.

Arguments of learned counsel for the appellant :

Learned counsel for the accused-appellant submit that the dead body of the deceased was recovered from a house but the prosecution failed to prove that the said house was belonging to the accused-appellant. It has not even been proved that the deceased was residing in that house. The Tehsildar and Patwari were not produced in evidence to prove the aforesaid, thus the prosecution failed to show that recovery of the dead body was from the house belonging to the accused-appellant.

It is further stated that no motive has been shown for the occurrence. The prosecution failed to show any reason to cause occurrence by the appellant. It is moreso when, the deceased and accused were husband and wife having cordial relation for last thirty years. In absence of motive, the question of conspiracy so as to connect the appellant with the crime for the offence under Section 120-B IPC was not made out. The trial Court ignored the aforesaid while convicting and sentencing the appellant.

A reference of the statement of PW - 1 Jagdish has also been given. In the cross-examination, the said witness has denied about extra judicial confession and even about the statement made in chief. He has not supported the prosecution case in his cross-examination yet his statement has been relied by the trial Court.

The prosecution failed to produce the evidence to connect the appellant with the crime in a case of circumstantial evidence. A "Phawra" recovered at the instance of the accused was not having blood group of the deceased and hair on it were not belonging to the deceased as per the FSL report. In view of the above, even recovery of weapon could not be proved by the prosecution yet an order of conviction and sentence has been passed against the appellant.

It is, lastly, contended that for a lady alone, it was not possible to kill her husband and, thereupon, to suppress the dead body in an Almirah followed by a brick construction to suppress the Almirah. It can be done only when somebody else has helped. The prosecution has failed to bring other accused for the aforesaid, thus even the prosecution case is not probable and otherwise, the prosecution has to prove its case beyond doubt. The prayer is accordingly to acquit the accused-appellant by setting aside the order of the trial Court.

Arguments of the side opposite :

Learned Public Prosecutor has opposed the arguments raised by learned counsel for the appellant. It is submitted that the prosecution could prove its case beyond doubt. A chain of circumstances could be brought and, based on it, the trial Court has rightly passed the order of conviction of the appellant while acquitting Mangal Chand @ Mangla Ram, the co-accused.

Finding of the Court :

The arguments of learned Public Prosecutor would be referred while marshalling the evidence as well as dealing with the arguments of learned counsel for the accused-appellant.

We have considered rival submissions made by learned counsel for the parties and perused the record carefully.

After the FIR, the police caused investigation and filed charge sheet against the appellant as well as Mangal Chand @ Mangla Ram. The charges against the appellant were framed thereupon for the offence under Sections 302, 201 and 120-B IPC. She has been convicted for those offences while acquitting Mangal Chand @ Mangla Ram, the co-accused.

The complaint was filed by PW - 1 Jagdish, who is nonelse but brother of the accused-appellant. It is stated that he received a telephone call from the accused on 09th January, 2011.

The accused asked him to visit her to discuss a family dispute and, accordingly, the complainant went to the place of the accused. The accused was found in a sad condition and when the complainant asked about it, she disclosed that she has killed her husband. It was informed that the incident is old by four to five days and the dead body has been suppressed in an Almirah. The complainant came back to his village and after discussing with eminent persons of the village, the FIR was lodged.

The said witness has proved recovery memo of dead body of the deceased Kaluram (Exhibit P - 5) and recovery memo of blood smeared clothes (Exhibit P - 3), but, he has denied his signatures. The seizure of "Phawra" has also been admitted, however, he denied written report (Exhibit P - 1) to be in his handwriting.

The cross-examination of the said witness was deferred and after that, the witness took "U" turn on certain depositions in chief, which includes, extra judicial confession by the accusedappellant. The adjournment of the case to defer cross-examination has been referred by the trial Court.

The other witness produced by the prosecution is PW - 2 Nenu Ram. He has stated that police recovered the dead body after breaking the wall. The dead body was of the deceased Kaluram. He has proved the recovery memo of dead body of the deceased (Exhibit P - 5) and recovery memo of blood smeared bed-sheet (Exhibit P - 8). The said witness even proved the recovery of "Phawra" by recovery memo Exhibit P - 9. The clothes of the deceased were also recovered and it is by Exhibit P - 10. The "Panchayatnama" of the deceased is Exhibit P - 11.

The said witness was cross-examined, but, his statement in chief could not be demolished by the accused. He was asked about name of the company manufactured the "Phawra" and was further asked as to whether the clothes were washed by the accused in his presence or not. Those questions were of no significance in reference to the statement in chief.

The other material witness is PW - 6 Madan Lal Kumar. He has stated that on 10th January, 2011, he could know about death of Kaluram. The police came at the residence of the accused. The dead body was suppressed behind a wall. The wall was demolished to recover the dead body. The dead body was found in a gunny-bag. The accused suppressed the dead body in the Almirah and, thereafter, erected a brick wall to suppress it. The said wall was broken by the police to recover the dead body. The said witness has proved the recovery memo of dead body (Exhibit P - 5) so as recovery of the clothes. He has even proved Exhibit P - 6 (arrest and personal search memo of accused), Exhibit P - 8 Seizure memo of blood smeared bed sheet, Exhibit P - 9 recovery memo of the weapon, Exhibit P - 10 seizure memo of blood smeared "Mafflar" and "Ghaghara", Exhibit P - 11 memo of panchayatnama of dead body, Exhibit P - 12 seizure memo of blood smeared "Baniyan" and "Jarsi" of the deceased, Exhibit P - 16 seizure memo of one mobile instrument of the accused Mangal Chand, Exhibit P - 17 seizure memo of one mobile instrument of the accused Savitri and Exhibit P - 18 site plan of the place of recovery of mobile instrument.

The prosecution produced PW - 4 Kabbu Ram, who has corroborated the statements of PW - 2 Nanu Ram and PW - 6 Madan Lal Kumhar. He has proved the documents referred earlier. It is stated that the complainant Jagdish Prasad Kumhar called him on the telephone and informed that his brother-in-law has been killed. He immediately reached to the residence of the deceased. The police was found present at that time. He has corroborated the statement of other witnesses regarding demolition of the wall by the police to recover the dead body. He has even proved the recovery memo of dead body so as the recovery of the clothes of the deceased. The said witness has even proved seizure memo of mobile instrument of the accused Savitri and, for that, Exhibit P - 17 was prepared. The witness has even proved the site plan of the place of recovery of mobile instrument, Exhibit P - 18 apart from recovery of the shoes by the accusedappellant. The said witness was cross-examined by the accused, however, his testimony could not be demolished. He has endorsed that the complainant Jagdish Prasad Kumhar called him on telephone and, immediately thereupon, he reached the place of occurrence within half an hour.

The other witness produced by the prosecution is PW - 9 Phool Chand. He has stated that the accused Savitri stated that she has committed a mistake. On account of the dispute with her husband, she strangulated the deceased and gave a hit by "Phawra". The head injury came out of it. She even stated about the occurrence four to five days back and, thereupon, put the dead body in a gunny-bag. It was then placed in an Almirah followed by erection of a brick wall so as to close the place. The said witness has further stated that the dead body was recovered after breaking the wall by the police.

In view of the above, the prosecution produced corroborative evidence to prove their case. It is not only regarding extra judicial confession by the accused before PW - 1 Jagdish Prasad Kumhar but even PW - 9 Phool Chand. The dead body was recovered on disclosure of the accused under Section 27 of the Indian Evidence Act, 1872 (for short "the Act of 1872"). The witnesses have proved that after killing the deceased, the dead body was put in a gunny-bag and, thereupon, placed in an Almirah. The accused thereafter erected a brick wall to suppress the dead body, thus other than her, nobody was knowing about the dead body.

The dead body was recovered by the police after breaking the wall on disclosure made by the accused. The police recovered a blood stained "Phawra", which was sent for FSL report. It is apart from the blood stained washed clothes recovered at the instance of the accused. The disclosure was even to the manner of the occurrence. The "Mafflar" was also found tied on the neck of the deceased. It is otherwise a fact that the husband and wife were residing alone. Their only daughter got married and was residing separately. In view of the above, even Section 106 of the Act of 1872 came into play.

The cause of death has been proved by the prosecution and, for that, they produced PW - 11 Dr.BL Meena, PW - 13 Dr.Anil Sain and PW - 15 Dr.KN Sharma. They have proved postmortem report prepared on 10th January, 2011. It is stated that there was presence of the ligature mark on the neck and a head injury on the dead body. The death was out of asphyxia due to strangulation. The duration of death has also been given, i.e., four to five days prior to the date of postmortem report. It has also corroborated the prosecution case because as per the statement of PW - 1 Jagdish Prasad Kumhar, the accused informed about the occurrence four to five days back from 09th January, 2011.

PW - 13 Dr.Anil Sain has corroborated the statement of PW - 11 Dr.BL Meena. He has also proved presence of ligature mark on the neck of the deceased. The presence of clotted blood has also been proved by him and corroborated the cause of death. PW - 15 Dr.KN Sharma has corroborated the statements of PW - 11 Dr. BL Meena and PW - 13 Dr.Anil Sain.

The prosecution even produced FSL reports (Exhibit P - 53 and Exhibit P - 54). It is to corroborate the statements of the witnesses. The FSL reports show that blood stained clothes as well as articles were having human blood and, on certain articles, even blood group "B" has been deducted matching to the blood group of the deceased. The blood group "B" was even found on the "Mafflar", which was found tied on neck of the deceased.

So far as the blood group on the "Phawara" is concerned, it remained inconclusive but human blood was found on it apart from containing hair of human organ. The comparison of the hair could not be made but human blood on "Phawara" has corroborated the prosecution case because it was used in the occurrence to cause head injury to the deceased. The postmortem report shows head injury and has been proved by PW - 11 Dr.BL Meena, PW - 13 Dr.Anil Sain and PW - 15 Dr.KN Sharma.

The recovery of mobile instrument of the deceased is again on disclosure of the accused and recovered vide Exhibit P -17. The articles, so seized by the police, were kept in the "Malkhana" and, for that, "Malkhana" register was produced by the prosecution and is Exhibit P - 33A. The articles were produced before the trial Court during the course of trial.

In view of the facts given above, we find that in a case of circumstantial evidence, the prosecution could bring chain of evidence to prove their case beyond doubt. Section 106 of the Act of 1872 also comes into play. The accused and the deceased were residing in one and the same house alone and, if the husband was not available then it was expected of the accused to make a report for it. The conduct of the accused also goes against her. She did not report about missing of her husband, as according to the prosecution and the postmortem report, the occurrence took place four to five days back from the date of report. Till then, the accused did not inform about missing of the deceased, thus even conduct of the accused read with Section 106 IPC also goes against the appellant. In view of the above, we are unable to accept any of the arguments raised by learned counsel for the appellant.

The ownership of the house is not an issue taken in defence or even put in the cross-examination so as to disbelieve the residence of the accused as well as deceased where the dead body was found. The case is made out not only for commission of the offence under Section 302 IPC but under Section 201 IPC as, after killing the husband, dead body was initially put in a gunnybag by the accused wife and, thereupon, it was kept in an Almirah. A brick wall was erected thereupon to suppress it.

Conclusion :

Accordingly, we find no reason to cause interference in the order passed by the trial Court.

The appeal accordingly fails and is dismissed.

The fee of the Amicus Curiae Mr.Ajay Singh Tanwar would be paid by the Rajasthan Legal Services Authority, as he was nominated by this Court.