Rupa Khan and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—1. This is a case where the witnesses have concocted the evidence, investigating agency has not performed its duty to take into possession vital pieces of evidence, investigating agency miserably failed to gather evidence and prove necessary links. The trial court also gravely erred in acquitting Rupa Khan, husband of deceased Dholi for offence under Section 304-B IPC. State has also not preferred appeal against acquittal of husband Rupa Khan for offence under Section 304-B IPC.

Nature of evidence available, its appreciation leave us with no other option except to record acquittal of the husband for offence under Section 302 IPC with a heavy heart. We are convinced that in the present case, husband should be convicted for offence under Section 304-B IPC, but since the trial court has acquitted the husband for offence under Section 304-B IPC and there is no appeal by the State, this court bound by the admissibility of the legal evidence, is left with no other option except to acquit the husband of offence under Section 302 IPC.

In the present case, Rupa Khan husband of deceased Dholi alongwith his distant relation Hassan were sent for trial for having caused murder of Dholi daughter of Mohar Khan (P.W.1) and niece of Gariba (P.W.5). The Court of Additional Sessions Judge, Bandikui in the present case formulated following three charges against Rupa Khan:--

"(a). First charge stated that on 21.6.2008 in the evening near Baswa Railway Line, Dholi @ Hansira daughter of Mohar Khan was murdered. She was strangulated and thus, Rupa Khan had committed offence punishable under Section 302 IPC.

An alternative charge was also framed under the heading of first charge to the effect that within seven years of marriage soon before death, Rupa Khan being husband demanded Rs. 1 Lac in dowry from his wife Dholi @ Hansira and caused harassment, inflicted cruelty upon her and thus, committed offence punishable under Section 304-B IPC.

(b). Second charge stated that husband Rupa Khan caused harassment, ill-treatment, caused mental and physical cruelty to his wife Dholi and thus, committed offence under Section 498-A IPC.

(c). Third charge stated that husband Rupa Khan in conspiracy with co-accused had caused murder of his wife Dholi and hence, committed offence punishable under Section 120-B IPC."

Similar charges were framed against accused Hassan a distant relation of Rupa Khan husband of Dholi.

The Court of Additional Sessions Judge, Bandikui, District Dausa vide impugned judgment dated 12.9.2011 convicted Rupa Khan for offences under Sections 498A, 302 and 120B IPC, whereas Hassan was convicted for offences under Sections 302 and 120B IPC. The trial court sentenced both the accused as under:--

"Accused-Rupa Khan

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months rigorous imprisonment.

U/s. 120B IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months rigorous imprisonment.

U/s. 498A IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month rigorous imprisonment.

Accused-Hassan

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months rigorous imprisonment.

U/s. 120B IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months rigorous imprisonment."

Before we appreciate evidence, it will be necessary for us to notice the brief facts of the case.

It has come in the evidence of Gariba (P.W.5) that two sisters Dholi and Guddi were married with two sons of Himmat. Dholi was married with Rupa and Guddi was married with Jamshed. The marriage had taken place three years and six months or three years and nine months before the occurrence. Adequate dowry was given in the marriage. Cash of Rs. 19,200/-, Hero Honda Motorcycle, household articles and silver ornaments weighing about 2-2 1/2 Kg. were given. A year after the marriage eldest daughter Dholi was sent to her matrimonial home by way of ''Gauna''. We may highlight here that it is definite case of the prosecution that Dholi was murdered on the night of 21.6.2008 in the evening near the Railway track at Baswa.

Evidence of Dr. Suwalal Meena (P.W.9) who being a member of the medical board consisting of three doctors on 22.6.2008 had conducted autopsy at 5.15 P.M., conclusively proved that cause of death of the deceased was asphyxia and prima facie, deceased had died due to strangulation. This opinion of the doctor has gone unchallenged.

Prosecution in all had examined thirteen witnesses.

In the present case, after the death of deceased had taken place on 21.6.2008 in the evening near Railway track of Baswa, a written report (Ex. P.1) was submitted by Mohar Khan (P.W.1) father of the deceased on 22.6.2008 at 4.45 P.M. The said written report (Ex. P.1) was presented before Ramveer Singh (P.W.12) who was then posted as S.H.O., Police Station Bandikui. The written report (Ex. P.1) when translated into English reads as under:--

"To,

The S.H.O. Sahab, Police Station Bandikui, District Dausa.

Sub.: For lodging of the report regarding murder.

Sir,

My daughter Dholi was married with Rupa S/o. Himmat, caste Fakeer, r/o Village Khedla, Tehsil Laxmangarh, District Alwar. The marriage was performed in the month of May, 2005. In the marriage of my daughter, I had given a motorcycle, Rs. 31,000/- in cash, one fridge, Palang, box containing utensils and 2 Kg. 500 gm. of silver ornaments and other articles. Yesterday at 10.00 P.M. I received a mobile phone from Khedla and I was informed that my daughter was not at home. We searched for our daughter. We questioned Rupa S/o. Himmat, he informed that your daughter is lying near Baswa. Rupa used to beat our daughter time and again. He was demanding Rs. 1 Lac. Rupa Fakeer, Kallu Fakeer, Lala Fakeer, sister-in-law and husband of sister-in-law used to harass her. They on the pretext that marriage is to be attended on 21.6.2008 in evening had taken her towards Baswa and had committed her murder near the Railway line after strangulating her. She has been murdered by Rupa Fakeer, Lala Fakeer.

Sd/-"

A perusal of the above FIR reveal that the primary allegation therein is that the daughter of the complainant was harassed by husband and relations and they were demanding Rs. 1 Lac in dowry. On 21.6.2008 in the evening on a false pretext to attend marriage they had taken her to Baswa and near Railway track had committed murder of the deceased Dholi. Curiously, this FIR is totally silent regarding extra-judicial confession made by the accused or qua the recovery of jewelry of deceased from Hassan accused.

Before we analyze the evidence led by the prosecution, we must put the facts in chronological order by detailing the time sequence as it has emerged in the evidence of the witnesses.

"(a). On 21.6.2008 in the night at 10.00 P.M. information was relayed that Dholi had left the house.

(b). A perusal of inquest/Panchayatnama (Ex. P.3) reveal that the dead body of Dholi was kept in the mortuary at Community Health Center, Bandikui. The following portion of the inquest (Ex. P.3) is required to be reproduced as under:--

Inquest/Panchayatnama (Ex. P.3) was prepared on 22.6.2008 at 3.40 P.M. Thus, before presentation of written report (Ex. P.1) on 22.6.2008 at 4.45 P.M., the dead body was in the mortuary. Who brought the dead body to the mortuary, no memo regarding seizure or recovery of dead body near the Railway track, Baswa has been prepared. The prosecution has miserably failed to prove the place of occurrence. Preparation of memo regarding recovery of dead body near the Railway track and its attestation by the witnesses would have proved the place of occurrence.

Vishna Ram (P.W.13) Investigating Officer in cross-examination admitted that at the time of preparation of inquest/Panchayatnama (Ex. P.3), no case has been registered and no report has been received by him. The witness further admitted that he had reached mortuary 15-20 minutes before 3.40 P.M. This witness stated that the dead body was recovered near the Railway track, police had lifted the same as the police was informed before, The witness further stated that in his investigation he has not noted that the dead body was lying at the Railway track. He has also not noted that as to who had given information regarding presence of dead body when police reached at the spot, The witness stated that at Baswa there is a police post and officials of police post can acquaint as to who had brought the dead body to the mortuary.

Thus, from the evidence of above, one thing is sure that before registration of the case, dead body had reached the mortuary and was seized by the police from the spot. Thus, the assertion of the witnesses that the accused made extra-judicial confession and in pursuance thereof the dead body was taken into possession become meaningless.

Had the witnesses kept their case simple and straight that the deceased was harassed by her husband within seven years of marriage and she had died unnatural death, the prosecution could have succeeded to punish the husband for offence under Section 304-B IPC. It seems that the witnesses as a result of consultations and deliberations wanted to achieve more. In order to secure conviction of the accused under Section 302 IPC and inflate the number of accused, prosecution witnesses came with the evidence that when the family members of the deceased confronted Rupa Khan, he made an extrajudicial confession before them regarding presence of the dead body and husband further admitted that he had murdered his wife alongwith Hassan. The witnesses have set-up a case that thereafter they left for Village Rambas village of Hassan. He was called from there and he was interrogated by the witnesses. Hassan admitted his guilt and produced silver ornaments of the deceased. This, according to the witnesses, was done before lodging of the written report (Ex. P.1). Written report (Ex. P.1) however, is silent regarding production of jewelry by the accused Hassan or a confession made by him. Since the dead body was already recovered from Baswa, an assertion in the written report (Ex. P.1) to the effect that on 22.6.2008 at 4.45 P.M. that Rupa told regarding place of occurrence is of no much significance.

Now, we shall analyze the evidence of the witnesses.

Mohar Khan (P.W.1) stated in court that his daughter was harassed and Rs. 1 Lac was demanded as dowry. Unable to meet the demand, he assured the accused that he will pay such amount after child is born to his daughter. Dholi was again beaten and sent back to his house. She was again sent to her matrimonial home. This witness further stated that on 21.6.2008 in the evening a telephonic call came at the residence of his brother Gariba and the accused had inquired whether her daughter had come to her parental village or not. In the morning after taking 10-5 persons the witness reached Village Khedla, village of the accused. Rupa husband of his daughter met him. 10-5 persons inquired from Rupa regarding Dholi. He refused to give any information. When father of Rupa, Himmat and others asked Rupa, he informed that he alongwith Lala of Rambas had taken Dholi on motorcycle at Alwar on the pretext that marriage of daughter of her Nanad is to be attended, then from Bandikui they took three tickets for going to Jaipur. At Baswa train stopped. It was little dark. They went near the bushes at a deserted place. Rupa started talking with Dholi and Lala @ Hassan strangulated her with a Chunni. It has further been stated that ornaments of Dholi were removed and they came back to Baswa. Having suspicion over what was told by Rupa, members of Panchayat which included 10-5 persons came to village Rambas of accused Hassan. They inquired about the occurrence from Lala. He denied the same. When he was forcibly asked, he admitted his guilt. The following portion of the evidence is important:--

Hasaroo (P.W.2) is Samadhi is Mohar Khan (P.W.1). He also stated that both the accused had made confession before him. Therefore, this witness is an interested witness.

Ishab (P.W.4) is also witness to extra-judicial confession. His son is married with daughter of Gariba (P.W.5), uncle of deceased. This witness stated that he being a member of Panchayat had gone to the house of Rupa. Rupa made a confession. Thereafter they went to Rambas, village of Hassan and from Hassan, silver jewelry was recovered. In cross-examination this witness has stated that police had prepared the site plan. The witness further stated that when on 22nd he alongwith Dholi had gone to the village of accused. He knew all the facts. The witness stated that he had told everything to the police and as to why the above facts are not recorded in his statement (Ex. D.2) the witness could not furnish any explanation.

Curiously enough statement (Ex. D.2) of Ishab is totally silent about the extra-judicial confession and recovery of ornaments. Exhibit-D.2 only speaks about harassment. The witness was duly confronted with his previous statement recorded under Section 161 Cr.P.C. Following portion of statement of the witness assume importance:--

Thus, till 23.6.2008 when statement (Ex. D.2) of Ishab was recorded, there was no story regarding extra-judicial confession, handing over of the jewelry by Hassan to the police. It has been concocted after the statement of Ishab on 23.6.2008 was recorded.

The only question which confront us is that in case Lala @ Hassan accused had made the confession, the same would have made part of the written report which led to the registration of case. Furthermore, inquest/Panchayatnama prepared before registration of the case is also silent qua this important aspect.

It is to be noted that Rupa and Hassan were arrested vide arrest memo (Ex. P.9 and Ex. P.10) on 22.6.2008 at 11.00 P.M. Thus, any confession made on 22.6.2008 after 11.00 P.M. will be inadmissible in evidence as such confession would have been made in custody of the police and same will be hit by Section 25 of the Indian Evidence Act. The prosecution has specifically stated that the confession was made before presentation of the written report. If that is so, why it was not so incorporated in the written report (Ex. P.1). The only conclusion which can be arrived at is that till presentation of the written report (Ex. P.1) no confession was made and same was introduced later a result of consultations and deliberations. No independent witness regarding extra-judicial confession has been examined. Extra-judicial confession has not been made before any member of Panchayat, Sarpanch or any respectable person. All witnesses to extra-judicial confession are relations of the deceased. Extra-judicial confession essentially is a weak piece of evidence.

Another limb of argument which we cannot ignore is that Hassan was coerced to make confession. We cannot term the confession made by Hassan @ Lala as voluntary. Curiously enough, if Hassan after making confession, had handed over the ornaments, as to why no memo regarding disclosure and recovery of ornaments was prepared no answer is forth coming. Only document on record is Exhibit-P.6 whereby Stridhan has been handed over to Mohar Khan (P.W.1) father of the deceased. A perusal of Exhibit-P.6 reveal that Stridhan and ornaments were handed over to the police by Himmat Khan father of Rupa. Following lines of memo (Ex. P.6) assume importance:--

Thus, the assertion of the witnesses that Hassan had handed over the ornaments is belied by the document (Ex. P.6). Besides Exhibit-P.6 there is no other memo on record regarding recovery of ornaments.

To overcome what has been recorded in Exhibit-P.6, Mohar Khan in cross-examination wisely stated that the ornaments were handed over by Hassan to his brother Gariba, Gariba in presence of Panchas gave the same to Himmat and in turn, Himmat gave the ornaments to the police. To us, this route suggested by the witness is improbable. Ornaments were lying in the house and hence, they may have been handed over by Himmat to police.

Defence has equally damaged the case regarding recovery of ornaments.

Ishak Mohd. (D.W.1) stated that Hassan was employed with him at a salary of Rs. 2500/- per month. Hassan accused requested to him that a loan of Rs. 50,000/- be advanced to his friend for purchase of Tempo and in case loan is disbursed his friend will pawn/mortgage the jewelry as security. This witness however is silent whether any ornaments were kept with him or not. Therefore, from the defence evidence, it has not been proved that the ornaments were seized from Hassan.

The trial Judge in order to convict the appellants has primarily relied upon primarily on following three circumstances even though in the impugned judgment the trial court has mentioned eight incriminating circumstances.

"(a). Accused Rupa and Hassan made extra-judicial confession.

(b). Accused Hassan handed over the silver ornaments.

(c). Both the accused were last seen with the deceased."

So far extra-judicial confession and recovery of ornaments is concerned, we have analyzed these two circumstances and have disbelieved the prosecution evidence qua these circumstances.

Now, we come to the evidence of last seen. Evidence of last seen has emerged in the testimony of Mangtu (P.W.3).

Mangtu (P.W.3) stated that he saw Dholi alongwith her husband and Hassan. Strangely enough, statement of Mangtu (P.W.3) was recorded by the police regarding evidence of last seen on 8.8.2006 after 1 1/2 months of occurrence. Thus, to us, this piece of evidence is also not reliable.

Vishna Ram (P.W.13) investigating officer has further stated that for fifteen days, name of Mangtu had not emerged in his investigation. It will be necessary to reproduce following portion from the statement of Vishna Ram (P.W.13):--

Thus, the evidence of last seen is also not reliable.

In view of above discussion, we are convinced that evidence led by the prosecution is not sufficient to convict the appellant for offences under Sections 302 and 120b IPC.

Thus, we record acquittal of the appellants Rupa Khan and Hassan for offence under Sections 302 and 120BIPC and set aside their conviction and sentence for offences under Sections 302 and 120B IPC. However, we uphold the conviction and sentence of appellant Rupa Khan for offence under Section 498A IPC.

Keeping, however, in view the provisions of Section 437-A Cr.P.C. the appellants, namely Rupa Khan and Hassan, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Apex Court.

In view of above, D.B. Criminal Appeals No. 985/2011 and 1037/2011 stand disposed of.