Mangilal Son of Shri Megha Gorna vs State of Rajasthan

The instant criminal appeal has been preferred by the

appellants against the judgment dated 08.11.2013 passed by

learned Additional Sessions Judge No.5, Udaipur in Sessions Case

No.58/2013 by which the learned Judge convicted the appellants

for the offence under Section 302 / 34 IPC and sentenced to life

imprisonment and imposed a fine of Rs.1,000/- and in default of

payment of fine, further awarded sentence of one month''s simple

imprisonment.

Brief facts of the case are that complainant Heera Lal filed a written report before the Police Station Ogna (Jharol) in which he

mentioned that his younger sister Laxmi was married to Mangilal

about twenty years back. Out of their wedlock two sons and one

daughter were born. It was further alleged that about four to five

months ago, Mangilal brought one lady namely Chatri in his house

on Nata. Complainant''s sister also resided with Chatri and

Mangilal. It was further alleged that on 18.08.2011 in the morning

at 7:00 A.M. somebody informed the complainant that his sister

Laxmi has expired. On receiving the said information, he along-

with other villagers went at his sister''s matrimonial home where

the dead body of his sister Laxmi was lying. They saw various

injuries on the dead body of his sister. Burnt marks were also

present on the dead body of Laxmi. They came to know that on

the evening of 17.08.2011 Mangilal and Chatri along-with children

all were seen going inside the house. Kanni, daughter of Megha

informed them that Mangilal and Chatri both beated Laxmi and

killed her and thereafter, they went away from the house. Earlier

also on several occasions, his sister Laxmi informed him that her

husband was not happy with her and always threatened to kill her.

On the said report (Ex-9), the Police registered the FIR (Ex-

27) and started investigation. During investigation, both the

accused-appellants were arrested by the Police. After usual

investigation, the police filed charge sheet against the accused-

appellants for offence punishable under Section 302 / 34 IPC

before the Court of Civil Judge (Upper Division) and Additional

Chief Judicial Magistrate Jharol. The case was transferred in the

Court of District and Sessions Judge Udaipur. Later on, the case was transferred to the learned Additional Sessions Judge No.5,

Udaipur.

The learned trial court after hearing the arguments and

considering the material on record, framed charges against

accused-appellants for offence under Section 302 / 34 IPC. The

accused-appellants pleaded not guilty and claimed trial.

At the trial, the prosecution examined twenty one witnesses

in all and exhibited 27 documents. Thereafter, the statements of

the accused-appellants under Section 313 Cr.P.C. were recorded in

which they mentioned that they were innocent and have falsely

been implicated in the matter by the prosecution. In defence, Gopi

Lal was examined as DW-1.

At the conclusion of the trial, the learned Additional Sessions

Judge No.5, Udaipur vide judgment dated 08.11.2013 convicted

the accused-appellants for offence under Section 302 / 34 IPC and

passed the sentence, as mentioned earlier. Hence, this criminal

appeal at the instance of the accused-appellants against their

conviction.

Learned counsel for the accused-appellants urged that the

accused-appellants have been roped in a false case as there is no

evidence to connect them with the alleged crime. He further

submitted that informant as well as other witnesses have not

supported the prosecution story and they have been declared

hostile. He further urges that no recovery was made from the

possession of the present accused-appellants and there was no

motive on the part of the accused-appellants to kill the deceased.

He further argues that previously no such type of report has been

lodged against the accused-appellants by the prosecution about

the harassment, therefore, the accused appellants are innocent

and they are liable to be acquitted.

Per contra, the learned Public Prosecutor has supported the

judgment of the trial Court and argued that there was a

presumption against the accused-appellants because death has

occurred in the accused appellants'' house. Hence, they have been

rightly convicted for the offence under Section 302 / 34 IPC.

We have heard the learned counsel for the accused-

appellants as well as learned Public Prosecutor and perused the

impugned judgment and also carefully gone through the record.

Laxman (PW-1) was an independent witness but he has been

declared hostile by the prosecution. PW-2 Pappu Lal is also

declared hostile, as he has not supported the story of the

prosecution. PW-3 Smt. Kanni was also declared hostile by the

prosecution. Her name was mentioned in the F.I.R. by the

informant Heera Lal stating that Kanni informed him that both the

accused-appellants have beaten the deceased and after that they

went away from the house, but in Court Smt. Kanni clearly

mentioned that she has not seen any type of quarrel and she

totally denied the fact and is declared hostile by the prosecution.

PW-4 Heera Lal is informant in this case and the real brother of

the deceased. He was also declared hostile as he has not

supported the story of the prosecution. PW-5 Chatra was also

declared hostile. PW-6 Lakhma is simply a motbir in this case.

PW-7 Thavra mentioned that on information given by Kanni, he went in the house of Mangi Lal where Laxmi was lying dead. He

only mentioned that Mangilal beated Laxmi. In cross-examination,

he admitted that on the day of the incident, accused Mangilal and

Chatri were not present in the house. PW-8 Megha and PW-9

Rooplal were also declared hostile. PW-10 Fullaram was also

declared hostile. PW-11 Chagan was also declared hostile by the

prosecution. PW-12 Amra simply mentioned that he went in the

house of Mangilal where he saw the dead body of Laxmi and he

saw some injuries on the body of deceased Laxmi. In cross-

examination he stated as under :

"VERNACULAR MATTER OMITTED"

PW-13 Natha has also been declared hostile. PW-14

Nakkaram stated that he went in the house of the accused where

he saw the dead body of the deceased and she received some

injuries. In cross-examination he stated as under:

"VERNACULAR MATTER OMITTED"

PW-15 Devilal in his cross-examination has stated as under:-

"VERNACULAR MATTER OMITTED"

PW-16 Pratap Singh was Malkhana Incharge. PW-17 Madan

Lal was Photographer. PW-18 Dr. Shivani, who conducted the

Autopsy of deceased Laxmi has stated that she found injuries on

the dead body of the deceased Laxmi and the cause of death was

due to Asphyxia caused by anti-mortem smothering. PW-19 Kamla

Shanker and PW-20 Bhera were Motbirs. PW-21 Sumer Singh was

the Investigating Officer. These are the total prosecution witnesses

in this case.

The defence witness DW-1 Gopi Lal, who was real son of

deceased and accused-appellant Mangilal, has stated that some

thieves entered in their house and they killed his mother and they

also snatched silver and gold ornaments from his mother. Further

he submitted that no quarrel had taken place between Mangilal

and deceased.

It is not in dispute that death of Laxmi is homicidal.

However, neither independent witnesses nor the informant, who is

real brother of the deceased, has supported the story of the

prosecution and all the material witnesses were declared hostile

by the prosecution. Some of the witnesses mentioned in their

statements that only due to pressure of the society, they named

the accused-appellants but they have not seen the actual incident.

The prosecution witnesses PW-12 Amra, PW-14 Nakkaram

and PW-15 Devilal have clearly mentioned in their statements that

they had pressurized the in-laws of the deceased to name the

assailant of Laxmi because as per the customs, the whole village

is blamed & boycotted. Thus, due to this pressure, the villagers

may have blamed Mangilal & Chatri so as to avoid further tension

between the two villages. Considering this line of intend, we

cannot consider the villagers'' statement as truthful and believable.

It is settled proposition of law that under general criminal

jurisprudence Section 105 and 106 of the Evidence Act place a

part of the burden of proof on the accused to prove facts which

are within his knowledge when the prosecution establishes the

ingredients of the offence charged. Once the accused succeeds in

showing, by preponderance of probabilities that there is

reasonable doubt in his favour, the burden shifts again on to the

prosecution to prove the case against the accused beyond

reasonable doubt. In this case, the trial Judge convicted the

present appellants only on the ground of presumption but there

was no evidence on record if the accused-appellants were present

in the house at the time of incident or not. On the other hand,

some of the witnesses clearly mentioned that the present

appellants were not present on the date of the incident. Thus, no

presumption in this case can be made. So the findings of

conviction of the trial Court based on surmises and conjuncture

are not at all believable.

Hon''ble Supreme Court in the case of P.Mani Vs. State of

Tamil Nadu reported in AIR 2006 SC 1319 while considering

this aspect of the matter has held as under:-

"We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever."

It has been further held as under :-

"Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the

deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.

We are, therefore, of the opinion that it is a fit case where the Appellant is entitled to the benefit of doubt. He shall be released forthwith if not required in any other case. The impugned judgments are set aside. The appeal is accordingly allowed."

Consequently, this criminal appeal is hereby allowed. The

judgment dated 08.11.2013 passed by learned Additional Sessions

Judge No.5, Udaipur in Sessions Case No.58/2013 is hereby set aside.

The appellants are acquitted of the offence under Section 302 / 34 IPC.

The appellant No.1 Mangilal S/o Shri Megha Gorna is in jail. He be

released forthwith, if not required in any other case. The appellant No.2

Smt. Chatri W/o Shri Mangilal Gorna is already on bail. She need not

surrender. Her bail bonds stand discharged.