Dismissed

Jaikam @ Dilshan v. State of Rajasthan through Pp

Rajasthan HC2 Nov 2018CRLAD/108/2018

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal challenging a life imprisonment sentence for murder. The bench held that the single eyewitness testimony was reliable, corroborated by medical evidence and recovery of the murder weapon under Section 27 of the Evidence Act.

What did the court decide?

The appeal fails and is dismissed. The order dated 25th March, 2017 passed by the Additional Sessions Judge stands affirmed.

Jaikam @ Dilshan Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 108/2018

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Jaikam @ Dilshan S/o Roojdaar @ Roobbad B/c Meo, R/o Village Alghani Police Station Sikri, District Bharatpur. At Present He Is Languishing In Central Jail, Bharatpur.

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Versus

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State Of Rajasthan Through Pp.

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----Respondent

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For Appellant(s) : Mr.Pradeep Kumar with Mr.Waseem Ahmed For Respondent(s) : Ms.Sonia Shandliya, Public Prosecutor

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment

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02/11/2018

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With the consent of learned counsel for the parties, the appeal has been heard finally, at this stage.

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By this criminal appeal, a challenge has been made to the order dated 25^th March, 2017 passed by Additional Sessions Judge No.1, Deeg, District Bharatpur in Sessions Case No.57/2016 (26/15). The accused-appellant has been convicted for the offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs.10,000/-, in case of default in payment of fine, to further undergo three months’ simple imprisonment.

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It is a case where the police registered an FIR on a written report of Aslam s/o Saudan. It was stated that his sister Mubina married to accused Jaikam s/o Roojdaar. The accused Jaikam used to torture and beat the deceased apart from causing mental cruelty on her. In the night of 10^th and 11^th November,

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(2 of 7)

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[CRLAD-108/2018]

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2014, the accused Jaikam murdered his sister Mubina. The information about death of complainant’s sister was given by other sister, who had also married in the same family. It is with the elder brother of Jaikam.

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On the written report, the police registered the case and caused investigation in the matter. After the investigation, a charge sheet was filed against the accused Jaikam for the offence under Section 302 IPC. The appellant did not confess the charges, rather, claimed trial. The prosecution produced twelve witnesses and nineteen documents to prove their case while the statement of the accused was recorded under Section 313 Cr.P.C. He did not lead evidence in defence. The trial Court convicted and sentenced the appellant for the offence under Section 302 IPC.

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Learned counsel for the appellant submits that prosecution case rests on a single witness Smt. Sameena (PW -1), who is none else but sister of the deceased Mubina. The story given by her in the FIR as well as her statement under Section 161 Cr.P.C. is not trustworthy. She made statement in the Court with improvement. In view of the above, the sole witness should not have been relied by the trial Court to convict appellant for the offence under Section 302 IPC. It is also stated that no witness other than Smt. Sameena was produced by the prosecution to prove their case. This includes even neighbours. It is moreso when, even prior to occurrence, i.e., in the midnight of 10^th and 11^th November, 2014, the accused said to have fought with the deceased during day hours. The neighbours gathered thereupon but the aforesaid incident has not been proved by bringing corroboratory evidence by the neighbours.

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(3 of 7)

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[CRLAD-108/2018]

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It is further stated that after postmortem report, the star witness Smt. Sameena (PW - 1) stated that the accused Jaikam put a pillow on mouth to suffocate the deceased, though, in the initial story, she did not disclose use of a pillow. The pillow was recovered after six months when the accused was arrested. The Investigating Officer in his statement did not state about availability of pillow on the place of occurrence. In view of the above also, the statement of PW -1 Smt. Sameena cannot be said to be trustworthy, rather, her testimony should not have been believed by the trial Court.

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A reference of the postmortem report has also been given to show cause of death apart from reference of the statement of accused Jaikam recorded under Section 313 Cr.P.C. It was stated that accused was not available at the place of occurrence. He was at Surat. He was informed about death of his wife and false implication while he was at Surat thus he was left with no option but to escape immediately. The fact about his absconding for a period of six months should not have been taken adverse. It is moreso when, it is the prosecution, which needs to prove its case and not by the accused.

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The trial court should not have convicted and sentenced the appellant for the offence under Section 302 IPC based on statement of sole witness PW -1 Smt. Sameena. In this regard, even brother of accused Jaikam was produced to prove the prosecution case. He has stated that husband and wife were having strained relation.

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It is lastly stated that even the event disclosed by Sameena was not possible because she entered into the room of deceased Mubina at around 3.00 AM. The door was found

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(4 of 7)

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[CRLAD-108/2018]

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unlocked, which is not possible and if it was lying open, the occurrence may have been caused by other. The prayer is accordingly to acquit the appellant and accordingly, to set aside the order passed by the trial Court for conviction and sentence of the appellant for the offence under Section 302 IPC.

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Learned Public Prosecutor has opposed the appeal. It is stated that the prosecution could prove its case beyond doubt. They produced eye-witness to the occurrence. The statement of Smt.Sameena was corroborated by other witnesses, thus rightly believed by the trial Court to convict and sentence the accused for the offence under Section 302 IPC. The prayer is accordingly to dismiss the appeal after marshalling the evidence.

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

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An FIR was registered on a written report of deceased’s brother Aslam s/o Saudan alleging that in the night of 10^th and 11^th November, 2014, her sister Mubina was killed. The information about it was given by her other sister Smt. Sameena.

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After the investigation, charge sheet was filed against the appellant followed by framing of charges and trial thereupon. The prosecution produced PW – 1 Smt. Sameena to prove its case. She has stated about incident in her court statement and was then cross examined by the appellant. The said witness stated that she and her sister (deceased) were married in one family. Their father and mother-in-law died earlier. The relation of deceased and the accused were strained. The accused used to beat and harass the deceased. He was asked to understand the relations of husband and wife but failed to accept it. The witness has thus given reason for the occurrence.

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(5 of 7)

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[CRLAD-108/2018]

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It is further stated that prior to the occurrence, the accused fought with the deceased during day hours and somehow, the dispute was settled by her. They slept thereupon. She heard voice of child and immediately rushed to room of the deceased where she found accused putting pressure on face of the deceased with the support of a pillow. The accused ran away from the place of occurrence when he saw PW – 1 Smt. Sameena. In view of the above, PW – 1 has supported prosecution case and her testimony cannot be disbelieved because in the cross-examination, her statement could not be demolished by the appellant.

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She was confronted with her statement under Section 161 Cr.P.C. (Exhibit D-1) where she did not make a mention about use of pillow by the accused. She made clear that the fact aforesaid was given to the police, if it was not written then she does not know why it has not been mentioned. In view of the above, PW – 1 Smt. Sameena has supported the prosecution case. Her statement has been corroborated by PW – 2 Dr.Pankaj Agrawal. He had examined deceased and prepared the postmortem report. The cause of death has been given therein. The Exhibit P-1 is the postmortem report and gives cause of death. It is out of suffocation. The postmortem report even shows injuries on the mouth of deceased, which can be caused in the occurrence, if one puts pressure to suffocate the deceased. PW – 2 Dr.Pankaj Agrawal has thus corroborated the prosecution case. The prosecution even produced witness of recovery as well as site plan (Exhibit P-7).

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PW – 5 Arsad was declared hostile, as he did not support the prosecution case. PW – 9 Aslam has corroborated evidence brought by the prosecution. He had made written

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(6 of 7)

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[CRLAD-108/2018]

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complaint to the police on an information received from his sister Smt. Sameena. He had proved Exhibit P – 7 and P – 8. The Exhibit P – 8 is memo of panchayatnama of body and P – 7 is site plan apart from P – 9 and P – 10. He was cross examined by the appellant. His statement could not be demolished. His testimony corroborates the evidence of other witnesses.

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PW – 10 Rameshwar Dayal, who was the second Investigating Officer, has also supported the prosecution case. It is stated that on disclosure of the accused under Section 27 of the Indian Evidence Act, 1872 (for short “the Act of 1872”) , a pillow was recovered at his instance.

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Learned counsel for the appellant has questioned the recovery of pillow, as it was not seen at the place of occurrence by PW – 12 Brijendra Yadav, who caused investigation at the initial stage. The recovery is said to be after a period of six months, that too, on arrest of the appellant.

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We have considered the aforesaid argument and find that recovery of the pillow is on disclosure of the appellant under Section 27 of the Act of 1872 and memo of recovery of pillow (Exhibit P-2) was proved by the prosecution. It is containing signature of an independent witness, thus recovery of the pillow cannot be disbelieved and otherwise, the accused was not available for a period of six months after the occurrence so as to make recovery at his instance. The accused could not explain as to why he absconded after the occurrence. In the statement, he has shown his availability at Surat but no evidence was produced to corroborate the statement. It is also not stated as to how he got information about death of the deceased and his implication when the FIR was registered at around 1.00 PM on 11^th November,

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(7 of 7)

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[CRLAD-108/2018]

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The appellant was not available for a period of six months. It also goes against him in absence of explanation in his statement under Section 313 Cr.P.C.

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PW – 12 Brijendra Yadav, the earlier Investigating Officer has also supported the prosecution case. He has given description of the site. He had even prepared the “panchayatnama” (Exhibit P-8) and sent the deceased for postmortem. The postmortem report is Exhibit P-1. The FSL report was also sought. It was sent to FSL by Exhibit P- 19.

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The prosecution could prove its case beyond doubt. It is not necessary that the prosecution should always produce more than one eye-witness of the occurrence even when incident took place in the night when others were not available to see the occurrence. The incident was seen only by one witness PW – 1 Smt. Sameena, who has proved the case of the prosecution.

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We do not find it to be a case of contradiction in the statements of the witnesses, rather, prosecution has brought corroborative evidence to prove their case and accordingly, we find no ground to cause interference in the order passed by the trial Court.

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In view of the above, the appeal fails and is accordingly dismissed.

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(BANWARI LAL SHARMA),J

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(M.N. BHANDARI),J

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Preeti/2

Jaikam @ Dilshan v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Jaikam @ Dilshan v. State of Rajasthan through Pp

Case brief

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What did the court decide?

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