Kachra vs State of Rajasthan

B.R. Arora, J.—This appeal is directed against thejudgment dated 19.1.1988, passed by the District and Sessions Judge, Udaipur, by which the learned Sessions Judge convicted the accused-appellant for the offence u/s 302 I.P.C. and sentenced him to undergo imprisonment for life and a fine of Rs. 50/- and in default of payment of fine further to undergo one month''s rigorous imprisonment.

Accused-appellant Kachra was tried by the learned Sessions Judge, Udaipur, for committing the murder of his wife Smt. Harmi in his house situated in village Mahad on 23.6.86 by strangulation. The case of the prosecution is that on 23.6.86, at about 2.00 p.m., P.W. 2 Harish and his brother P.W. 3 Gopi were passing through the lane and then they heard the cries coming from the house of the accused. When they went inside the house of the accused, they saw the accused sitting on the chest of Smt. Harmi and strangulating her by rope and on seeing them, the accused ran away. The report of the incident was lodged by P.W. 2 Harish on 24.6.86 at 3.00 p.m. at Police Station, Panarwa, district Udaipur. The prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in defence. The learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above.

The nature of the evidence, produced by the prosecution, consists of the statements of P.W. 2 Harish and P.W. 3 Gopi- the two eye witnesses of the occunence which is sought to be corroborated by the evidence of P.W. 1 Smt. Bhuri- a neighbourer and PW.6 Fakir Mohammed-the shop-keeper. P.W. 5 Deeta is a Motbir witness, in whose presence the accused was arrested. P.W. 4 Dr. Om Prakash was the Medical Officer Incharge, Primary Health Centre, Kotdra, who performed the post-mortem on the dead body of Smt. Harmi. P.W. 7 Amar Singh was the investigating officer, who conducted the investigation and after completion of the investigation presented the challan.

The case of the prosecution mainly rests upon the statements of P.W. 2 Harish and P.W. 3 Gopi, who are the brothers of the deceased. P.W. 2 Harish has stated that on the day when Smt. Harmi died, he, alongwith his brother P.W. 3 Gopi, was sitting at the shop of P.W. 6 Fakir Mohammed. They heard the cries of Smt. Harmi from her house. He and Gopi went there running and when they entered inside the house of the accused, they saw the accused strangulating Smt. Harmi by a rope and the accused was sitting on her chest. The accused, on seeing them, ran away. He has stated that Smt. Harmi was his real sister. In the cross- examination, he has admitted that Smt. Harmi was not his real sister but she was his first cousin. He has further admitted that Smt. Harmi was issue less and had no real brother. He has, also, admitted in the cross-examination that the accused and Smt. Harmi were in possession over twenty Bighas of land, which was left by the father of Smt. Harmi. He has, also, admitted that the relations between the accused and the deceased were cordial and they never seen them quarreling. He has, also, admitted that his house is situated at a distance of one kilometer while the house of Gopi is situated nearby his house. He has, also, admitted that after they entered inside the house of the accused, the accused, on seeing them, ran away and at that time the door was open and there is only one door but they did not try to catch-hold the accused. He has, also, admitted that neither he nor Gopi raised any alarm nor called any other person for help. This witness is residing at a distance of one kilometer from the house of the accused and it was a day time of 2.00 p.m. and his presence near the house of the accused was not natural.

P.W. 3 Gopi has stated that deceased Smt. Harmi was his cousin, who was married with the accused. Harmi had no real brother. On the fateful day, he and Harish were sitting at the shop of Fakir Mohammed at about 2.00 p.m. wherefrom they heard the cries of Smt.Harmi from the house of the accused. They went running and entered inside the house of the accused and saw the accused sitting on the chest of Smt. Harmi and strangulating her by a rope. On seeing them, are accused ran away and at that time they found Smt. Harmi dead. Harish went to lodge the report and he remained sitting there. In the cross-examination this witness has admitted that accused Kachra was "Ghar Jawain" who used to cultivate the land left by Harmi''s father. Accused Kachra is a resident of Gujarat State. He has, also, admitted that Kachra belongs to some other caste and in the caste of this witness the land of the deceased can be cultivated only by the members of the same caste and no agreement arrived at between him and Kachra regarding cultivation of this land. He has, also, admitted that the land of Smt.Harmi is, now, in their possession. He has, also, admitted that when they entered inside the house of the accused, the accused, on seeing them, started running but they did not try to catch-hold him. He has, also admitted that the relations between Smt. Harrni and the accused were cordial.

Both these witnesses are the real brothers. They are interested in grabbing the land of deceased Smt. Harmi. Their houses are situated at a distance of one kilometer from the house of the accused. At the relevant time they were not expected to be present near the house of the accused or at the shop of P.W. 6 Fakir Mohammed. It was a day time. Their presence at the scene of the occurrence were highly improbable. They are the chance witnesses. Their conduct, also, shows that actually they were not present there because they were two persons, the door of the house of the accused was open, they entered inside the house of the accused and on seeing them the accused started running but none of them tried to catch-hold the accused. P.W. 2 Harish has tried to show himself as the real brother of the deceased but in the cross-examination he has admitted that Smt.Harmi was not his real sister but was his first cousin. These witnesses have stated that they came at the scene of the occurrence after hearing the cries raised by Smt. Harmi while P.W. 6 Fakir Mohammed denies to have heard any such alarm. If Fakir Mohammed had not heard any cries or shrieks allegedly raised by Smt. Harmi then there was no question of these witnesses, if at all present there, to hear the cries and reach to the house of the accused. They have stated that the accused was sitting on the chest of Smt. Harmi and was strangulating her by rope and on seeing them the accused ran away. If it was so then in that circumstance the rope should have been found around her neck but, in fact, it was found by the side of the dead body of Smt. Harmi. The presence of these witnesses, therefore, is not beyond suspicion. They are interested and chance witnesses and their presence at the scene of the occurrence is highly improbable. Both these witnesses made certain improvements in their statements during trial from their earlier statements. Initially they came with the case that they were passing through the lane when they heard the cries of Smt. Harmi while in their statements recording during trial they have stated that at that time they were sitting at the shop of Fakir Mohammed. The contradictions and improvements, also, make their testimony unreliable.

The other witness, who has been relied upon by the prosecution and believed by the learned trial Court, is P.W. 1 Smt. Bhuri- a neighboured She has only stated that the accused and Smt. Harmi, on the relevant day, were quarreling together. Smt. Harmi cried and thereafter she did not hear any voice of Smt. Harmi. She has stated that she is blind. Later on she heard that Smt. Harmi died but she did not know how she died. In the cross- examination this witness has admitted that the villagers were saying that Smt. Harmi committed suicide. She has, also, admitted that accused Kachra was kept as "Ghar Jawain" by Harmi''s father and he used to live there as such. She has, also denied that Smt. Harmi ever tried to turn-out Kachra from her house. The statement of this witness, therefore, clearly shows that it was not on account of strangulation by the accused that Smt. Harmi died and as per the information allegedly given to this witness by the villagers, Smt. Harmi committed suicide.

P.W. 6 Fakir Mohammed has stated that he was sitting at his shop when he heard the cries and on hearing the cries he went to the house of accused Kachra where Kachra met him and stated that his wife Smt. Harmi had died. When he went there he saw the dead body of Smt. Harmi and a rope was lying by the side of her dead body. On enquiry, Harish and Gopi informed him that Kachra committed the murder of Harmi. Harish went to the Police Station to lodge the report and the police came there and recovered the dead body, prepared the site plan etc. In the cross-examination this witness has admitted that Harish and Gopi came to his shop for buying Biris and match-box and after taking these items they left his shop and went towards their village. He has, also, admitted that he did not hear any voice from the side of the house of the accused. He has, however, admitted that if somebody calls from the house of the accused, the voice can be heard at his shop. He has, also, admitted that when he reached at the house of the accused, at that time nobody was inside the house and Harish and Gopi met him in the way. This witness has tried to make improvements from his earlier statement recorded by the police. In the earlier statement he had stated that Haxish and Gopi were sitting in the house of the accused when he reached there but in the statement recorded during the trial he has stated that they were coming towards his shop. We have found material contradictions in the statement of this witness vis-a- vis his own statement. This witness has tried to make improvement from his earlier statement in order to make his evidence in consonance with the prosecution case. A close reading of the evidence of this witness makes it clear that his evidence does not inspire confidence.

There is, also, another circumstance which raises a suspicion in the prosecution case. The incident took place on 23.6.86 and the report of the incident was lodged at the police station on 24.6.86 but the F.I.R. of the incident was reached in the Court on 26.6.86 at 10.00 a.m., i.e., after a delay of about forty-three hours. Though the delay in despatching the F.I.R. is not in itself a ground for throwing away the prosecution case in its entirity but the extraordinary delay in sending the report to the Court is a circumstance which raises suspicion and gives a cause to suspect that the F.I.R. was recorded not at the time and the date mentioned in it but was recorded much later than the time and date recorded therein. In the present case the prosecution was not sure whether it was a case of suicide or homicide, which is clear front the statement of P.W. 1 Smt. Bhuri and the prosecution had sufficient time to introduce improvement and embellishment to put a distorted version of the incident. The delay in reaching the F.I.R. in the Court, also, raises a suspicion in the prosecution case.

The prosecution has, thus, failed to prove the case against the accused-appellant beyond reasonable manner of doubt and the appellant, therefore, deserves to be acquitted. The learned trial Court was, therefore, not justified in convicting and sentencing the accused-appellant.

In the result, the appeal, filed by the accused- appellant, is allowed. The judgment dated 19.1.88, passed by the learned Sessions Judge, Udaipur, convicting and sentencing the accused-appellant for the offence u/s 302 I.P.C., is set-aside and the appellant is acquitted of all the charges levelled against him. The appellant is in jail arid he be released forthwith if not required in any other case.