Sukhdeo vs State of Rajasthan

R.S. Chauhan, J.—The present appeal has been received through jail. The Court of Additional Sessions Judge (Fast Track), No. 3, Ajmer, Camp Kishangarh vide impugned judgment dated 30th April, 2005 had held the appellant guilty of offence under Section 302 IPC, and by a separate order of even date, sentenced the appellant as under : -

"For offence under Section 302 IPC : to undergo life imprisonment, and to pay a fine of Rs. 2000/-, and in default thereof, to further undergo two month''s simple imprisonment."

The Court had further held that appellant shall pay Rs. 25,000/- as compensation to legal heirs of deceased Shanti Devi.

Criminal proceedings in the present case were set into motion on the basis of written report (Ex. P/1) lodged by Hari Ram (P.W.1), before Sub-Inspector, Suraj Narayan (P.W.13), then posted as SHO, Bandar Sindri, Ajmer. The written report (Ex. P/1) when translated into English reads as under:--

"To

Station House Officer, Police Station, Bandar Sindri, Ajmer.

Sir,

It is submitted that I Hariram S/o. Bodhu Mali am resident of Bandar Sindri. I am engaged in agriculture work. Shanti Devi w/o Om Prakash was selling melon, oranges and vegetables to earn livelihood for her family. Today on 29th May, 2004 at about 5.30 A.M., she left the house to ease herself. After some time, we heard her shrieks. I woke up, and ran towards the place from where the noise was coming, and saw that opposite the house of Ram Singh S/o. Dashrath Singh Rajput on the way behind Deviji Ka Mandir, the dead body of Shanti Devi is lying. By carrying head of the Shanti Devi in one hand, and a kulhari in the other hand, Sukhdeo son of Shyoji Gurjar was seen running away from the spot. Many people have also gathered there. Hariram, Ramkaran, Badi, Jagdish and Tejpal etc. had seen the accused going from the spot. After throwing the head of the deceased, at some distance, the accused decamped from the spot. Sukhdeo due to sour relations used to keep grudge against Shanti Devi; and due to this grudge, when Shanti Devi was coming after easing herself, the accused after giving kulhari blow beheaded her. Therefore, it is requested that legal action be taken against Sukhdeo.

Signed Hariram.

Dated 29th May, 2004."

The above said FIR was investigated; report of investigation under Section 173 Cr.P.C. was submitted against the appellant. The report of investigation, alongwith the accused was committed to the Court of Sessions; the trial was entrusted to the Additional Sessions Judge (Fast Track), No. 3, Ajmer Camp Kishangarh.

The appellant was charged for offence under Section 302 IPC. The charge stated that on 29th May, 2004 at about 5.30 A.M. near Village Bandar Sidri on the back side of Devji Ka Mandir (temple), appellant with kulhari had severed the head of Shanti Devi, wife of Ramkaran, from her body. Thereafter he had thrown her head in the pond. Thus, he had committed an offence punishable under Section 302 IPC for having caused murder of Shanti Devi.

Appellant pleaded not guilty, and claimed trial.

Hari Ram, first informant, complainant appeared as P.W.1. He reiterated as to what was stated by him in the written report (Ex. P/1). He stated that when he reached at the spot, he saw that accused Sukhdeo carrying head of Shanti Devi in one hand, and a kulhari on another hand. He further stated Shanti Devi was wife of his brother. The witness pointed towards the person in the Court who had committed the offence. He further stated that he had seen the accused throwing the head of Shanti Devi in the pond. In cross- examination this witness stated that Tejpal (P.W.14) had accompanied him to lodge the report.

Nothing meaningful has emerged in the cross-examination of the witness except that witness had not seen whether kulhari of Sukhdeo was stained with blood or not.

Ramkaran (P.W.2), the husband of Shanti Devi also stated that he was going to ease himself when he heard shrieks of the deceased. He came towards the spot; he saw that appellant was carrying Kulhari in one hand and head of Shanti Devi in another hand and was running away. The body of Shanti Devi without head was lying on the ground. The accused after some distance had thrown the head of the deceased, and decamped from the spot. This witness stated that occurrence was seen by Hariram (P.W.1), Jagdish (P.W.4), Badri (P.W.3) and Tejpal (P.W.14). This witness further stated that accused had demanded vegetables on credit, and due to refusal by his wife, accused feeling aggrieved had caused her death.

Badri Lal (P.W.3), son of deceased Shanti Devi also stated that in the morning also he was going to ease himself. When he heard cries of his mother, he, alongwith his father Ram Karan (P.W.2), Hari Ji (P.W.1) and Tejpal (P.W.14) ran towards her, and saw that Sukhdeo after separating head from the neck of his mother was running away. The appellant was carrying Kulhari in one hand and head of Shanti Devi in another hand. Kulhari was stained with blood of his mother. Headless body of his mother was lying on the ground. After some time, Sukhdeo had thrown the head of his mother in the pond.

Jagdish (P.W.4) has corroborated the testimony of Hari Ram (P.W.1), Ram Karan (P.W.2) and Badri Lal (P.W.3).

Tejpal stepped into witness box as P.W.14. He has also reiterated as to what has been stated in the written report (Ex. P/1) and deposed by other witnesses.

Devilal (P.W.5) had attested Panchayatnama (Ex. P/6) of dead body.

Madan (P.W.6) stated that in his presence, police had recovered kulhari from the house of the accused, and at the time of recovery of kulhari Tejpal (P.W.14) and Hari (P.W.1), and accused Sukhdeo were also present.

Chhotu (P.W.7) had attested the arrest memo (Ex. P/13).

Madhu Sudhan (P.W.8) being photographer had taken photographs at the spot.

Dr. Man Mohan Sharma (P.W.9) conducted autopsy on the dead body of the deceased being Member of Medical Board. Dr. P.C. Agarwal (P.w.10) was another member of the Board. This witness proved Post-Mortem Report (Ex. P/18).

In the Post-Mortem Report (Ex. P/18) following injuries have been noticed : -

"Head is completely cut through neck and angle of mouth, and through cut wound obliquely plotted at cervical vertebra 5th to lower neck, through angle of mouth. All structure of neck are cut with sharp margins. Scalp hair are rinsed with blood.

Remark : - Sample of scalp hair are preserved labled and sealed in a glass bottle for chemical examination at FSL Jaipur as per police requisition."

As per opinion of the Board, cause of death was neuro hemorrhagic shock due to complete separation of head from rest of the body.

Another member of the Board Dr. P.C. Agarwal (P.W.10) also stated that injury was caused by incised weapon.

Virendra Singh (P.W.11) was posted as Constable in Police Station, Bandar Sindri. He had attested letter (Ex. P/19) written to Superintendent of Police, Ajmer to deposit the sealed packets to FSL.

Virendra Singh (P.W.11) and Motial (P.W.12) witnesses have been examined to prove the link evidence.

Suraj Narayan (P.W.13) being the Investigating Officer has proved various facet of investigation.

Thereafter, the prosecution closed its evidence.

Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. All incriminating evidence was put to him, he denied the same and claimed himself to be innocent and pleaded false implication. No witness was examined in defence.

We have heard Shri Chandra Bhan Gupta, counsel for the appellant.

Shri Chandra Bhan Gupta, appearing for the appellant has submitted there is a delay in reaching of special report. It is contended that occurrence had taken place on 29th May, 2004 at 5.30 A.M. Hari Ram (P.W.1) had submitted written report (Ex. P/1) on 29th May, 2004 at 6.25 A.M., counsel for the appellant has submitted that special report reached to the Area Judicial Magistrate, Kishangarh on the next day i.e. 30th May, 2004 at 3.00 P.M., according to the counsel for the appellant, there is a delay of 34 hours in reaching of the special report to the Area Judicial Magistrate. It is submitted that delay has been used for consultations and deliberations to concoct a false version and falsely implicate the appellant.

Learned counsel for the appellant has submitted that it is a blind murder, in the wee hours of the morning, Shanti Devi had gone to ease herself, then she was killed by somebody. Nobody had witnessed the occurrence. The family members in order to settle their grudge has falsely implicated the appellant.

In support of his contention, learned counsel for the appellant has relied upon the judgment rendered by Hon''ble Apex Court reported in The State of Rajasthan Vs. Shri Teja Singh and Others, AIR 2001 SC 990 : (2001) CriLJ 1176 : (2001) 2 JT 347 : (2001) 1 SCALE 670 : (2001) 3 SCC 147 : (2001) 2 UJ 841 : (2001) AIRSCW 737 : (2001) 1 Supreme 621 wherein it was held as under : -

"In our opinion, the High Court, in that process, has not committed any error. As a matter of fact, the explanation put forth by the learned counsel in regard to the delay in the FIR reaching the court is not tenable because assuming that there were some court holidays that cannot be a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach the concerned Magistrate without any undue delay. We are of the opinion that the explanation given by the prosecution regarding the delay in the FIR reaching the Magistrate is neither convincing nor acceptable."

In the present case, Sukhdeo appellant is the sole accused. There is no previous enmity between the parties. It is not the case of defence that due to inimical relations, appellant has been falsely substituted.

Recently, in Brahm Swaroop and Another Vs. State of U.P., AIR 2011 SC 280 : (2011) CriLJ 306 : (2010) 11 JT 437 : (2010) 11 SCALE 443 : (2011) 6 SCC 288 : (2011) 2 SCC(Cri) 923 : (2010) 10 UJ 4853 : (2010) AIRSCW 6704 : (2010) 7 Supreme 549 , the Lordship of Hon''ble Supreme Court has dealt with regarding delay in reaching of the Special report by observing as under:--

"Delay in sending report to the Magistrate

Undoubtedly, there is delay of 5 days in sending the special report. This Court in Badam Singh v. State of M.P., while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the special report, it may be fatal to the prosecution''s case.

However, a larger Bench of three Judges in Balram Singh v. State of Punjab, held as under:

"10.... we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the Jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-5-1990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case."

In State of Rajasthan v. Teja Singh, this Court held that the receipt of the special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable. The same view has been reiterated in Ramesh Baburao Devaskar v. State of Maharashtra.

In Sarvesh Narain Shukla v. Daroga Singh, this Court held that delay in forwarding the special report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR.

In Aqeel Ahmad, this Court held that the forwarding of the report to the Magistrate is indispensable and absolute and it must be sent at the earliest promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution''s case and the introduction of a distorted version by deliberations and consultation and to enable the Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable It would depend upon the facts of each case. If there has been some lapse on the part of the investigating officer that would not affect the credibility of the prosecution''s witnesses."

In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:

"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.

Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it."

In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said reprt in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."

Normally, delay in reaching of the special report puts the Court on guard to sift the grain from the chaff, and to examine that nobody is made victim of over-implication. Since, in the present case, appellant is the only accused, and no other person has been named as accused, we are unable to agree with the contention raised by the counsel for the appellant. To us, the delay in reaching of the special report per se is not fatal. In the instant case, husband, son, devar alongwith Tejpal (P.W.14) independent witnesses have stated that they have seen the accused after causing injury, cutting the head from the neck, he was running away with head of the deceased in one hand and the Kulhari in the other hand. Probably accused intended to carry head of the deceased as a trophy to avenge hurt to his ego, due to harsh words uttered by deceased when she refused to sell vegetables on credit. But seeing the witnesses following him, he had thrown the head of the deceased in the pond and run away. Kulhari has been recovered from the possession of the appellant, and same is stained with human blood of group ''A'' origin. Furthermore version given by the witnesses have been duly corroborated by the medical evidence.

Taking totality of the circumstances, we find no merit in the present as we are of the view that testimony of the witnesses aspire confidence.

For the reasons stated above, this Court does not find any merit in the present appeal. Therefore, it is hereby dismissed.