Dismissed

Sohan Lal v. State

Rajasthan HC9 Apr 2019CRLA/390/2009

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for murder and cruelty, the High Court dismissed the appeal. The Court held that the testimony of the child witness, corroborated by medical and forensic reports, established guilt beyond reasonable doubt, distinguishing the case from precedents requiring independent witnesses for child testimony.

What did the court decide?

Appeal dismissed; conviction and sentences under Sections 302 and 498-A IPC upheld.

Sohan Lal Vs State — Dowry and Cruelty | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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D.B. Criminal Appeal No. 390/2009

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Sohan Lal S/o Shri Kishan Lal, by caste Brahmin, Resident of Tikar, Police Station-Amet, District Rajsamand (Raj.).

----Appellant

Versus

State

----Respondent

For Appellant : Mr. Sunil Joshi, Amicus Curiae. For Respondent : Mr. N.S. Bhati, PP for the State.

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Judgment

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(Per: Hon’ble Mr. Vinit Kumar Mathur, J.)

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09/04/2019

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The present appeal was listed on 20/02/2019 before this Court and Mr. Sunil Joshi, Advocate was appointed as an Amicus Curiae to assist the Court on behalf of the accused-appellant as the counsel Mr. Amitabh Acharya who filed the represented appeal had pleaded no instructions.

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The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 30.03.2009 passed by the learned Additional District and Sessions Judge (Fast Track), Rajsamand in Sessions Case No.49/2008 whereby the accused-appellant has been convicted and sentenced as under:-

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(2 of 13)

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[CRLA-390/2009]

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Offence	Sentence	Fine	In Default
302 IPC	Life imprisonment	Rs.5000/-	Six months additional imprisonment
498-A IPC	One year rigorous imprisonment	Rs.2000/-	Three months additional imprisonment

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The sentences were ordered to run concurrently except for those in default of payment of fine.

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The facts in narrow compass are that a written report (Ex.P/1) was filed on 20.09.2008 to the Station House Officer, Police Station Amet District Rajsamand by PW1 Ashok Joshi stating therein that his younger sister Smt. Laxmi was married to the appellant Sohan Lal for last 20 years. The appellant Sohan Lal was suspicious about character of his sister Laxmi, therefore he used to assault her. On two-three previous occasions, his sister was assaulted and was turned out of the house by the appellant. Therefore, she used to come and stay at the parental house and used to share her misery. The appellant Sohan Lal was involved in the business of catering and used to frequently visit Mumbai. He returned from Mumbai about a month back and was staying in Tikar, Amet. The complainant was informed by his sister that her husband was threatening to kill her. On 20.09.2008, when he was in the village Kuwanthal, his uncle Dhanraj (PW4) informed him at around 06:00 pm that Laxmi had been murdered by her husband and her dead body was lying in the courtyard (Bada). On this information, he rushed to village Tikar and saw the dead body of his sister lying in the courtyard near the bushes. The appellant was holding a stone in his hand. When the appellant saw him and his uncle Dhanraj (PW4), he fled away from the place of incident. When he and his uncle reached near the dead body of his sister, he saw multiple injuries on the temporal region and above the left

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(3 of 13)

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[CRLA-390/2009]

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eye which were profusely bleeding. The police was informed and the report was lodged.

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On this report, a formal F.I.R. No.164/2008 (Ex.P/2) was registered at Police Station- Amet, District Rajsamand for the offences under Sections 498-A & 302 IPC against the accusedappellant.

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After conclusion of the investigation, the police filed chargesheet against the accused-appellant for the offences under sections 302 & 498-A IPC.

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Learned trial court framed, read over and explained the charges for the offences under Sections 302 & 498A of IPC to the accused-appellant who pleaded not guilty and sought trial.

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During the trial, the prosecution examined as many as 15 witnesses and documents Ex.P/1 to Ex.P/46 were exhibited in support of its case.

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The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial which he denied and stated that on the date of the incident, he had gone to Devgarh and when he went to his courtyard at Tikar, he saw that his wife was lying dead. He was falsely implicated on the basis of suspicion.

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Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant for the offence under section 302 & 498A vide judgment dated 30.03.2009. Hence this appeal.

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We have heard learned Amicus Curiae appearing on behalf of the appellant and the learned Public Prosecutor.

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Learned Amicus Curiae has vehemently and fervently argued that the learned trial court has failed to appreciate the evidence

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(4 of 13)

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[CRLA-390/2009]

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on record and therefore, erred in convicting the appellant for the offences alleged vide its judgment dated 30.03.2009. He further stated that there is overwriting in document Ex.P/42 (i.e. application for medical examination of the appellant) wherein time of medical examination of the appellant by the medical officer was shown as 08:00 pm whereas it was actually 08:00 am. He contended that as per PW1 Ashok and PW2 Prem Shanker, the appellant was arrested on the same day but in the arrest memo, the date of arrest is shown as 21.09.2008, therefore, this is a case wherein documents have been fabricated to falsely implicate the appellant.

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Learned Amicus curiae has further argued that statement of PW12 Vijendra son of the appellant and the deceased was recorded after 14 days of the incident, therefore, his testimony is not worth credence. He further submits that the witness admitted that he was residing with his maternal uncle. As per Shri Joshi, the witness must have been tutored, therefore, testimony of PW12 Vijendra is not reliable.

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He further submits that investigating officer Shri Bhawani Singh (PW15) failed to record the statement of PW12 Vijendra despite having reached the place of the occurrence well on time and there is no explanation for non recording of the statement of PW12 Vijendra for almost two weeks by the investigating officer.

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The Amicus Curiae further argues that despite presence of a number of persons at the place of occurrence, no independent witness was examined. It is contended that the recoveries effected are doubtful being manipulated as it has come in the statements of PW1 Ashok and PW4 Dhanraj that when they reached the place of occurrence, the appellant ran away on

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(5 of 13)

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[CRLA-390/2009]

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sensing their presence. If the appellant left the place then it is not understood at what point of time, the bloodstained clothes and stick were placed inside the room by the appellant. If the appellant had no time to go inside the room then the question of putting the articles simply does not arise.

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In support of his arguments, the learned counsel has relied upon para 30 of the judgment of the Hon’ble Supreme Court in the case of Deepak Kumar vs. Ravi Virmani & Anr , reported in (2002) 2 SCC 737 which reads as under:-

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“30. The second aspect of Deepak's evidence is the entry of Sanjay which takes place immediately after the arrival of Deepak: Sanjay also sees the happening inside the house and by reason thereof breaks open the door obviously the kundi (the bolt gave way and had fallen on the ground but there is no mention of the same in the police report or in the seizure list this is however a minor omission which the Court ought not to dilate in a matter of the nature presently dealt with). Deepak's evidence thereafter becomes rather interesting Deepak stated that immediately after Sanjay arrived inside the house the hexablade was snatched away from Ravi thus hexa blade shifts hand from Ravi to Sanjay and immediately thereafter Deepak stated in his evidence that he came out and cried out "maar diya, maar diya" Deepak's cry was loud enough to attract Sukhdayal but in the meantime Sanjay was grappling with Ravi and the latter also did inflict injury to Sanjay and thereafter as he tried to escape Sukhdayal captured Ravi and it is then both the brothers went inside the house and discovered four gruesome murders. The Police was informed telephonically and within a few minutes thereafter the police arrived and Ravi along with the weapon of offence was handed over to the police - How has the weapon changed hands? Deepak's definite evidence is that Sanjay entered the house and snatched the hexablade from Ravi, when did this happen? Unfortunately there is no answer to the same and the evidence is also delightfully silent. Sukhdayal was supposed to have captured Ravi while the latter was on his escape hundreds of people gathered at the cry of Deepak neither Sukhdayal nor anyone of the people who gathered there was examined as witness. What prevented Sukhdayal from being brought in the witness box since he would have been the best

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(6 of 13)

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[CRLA-390/2009]

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witness possible to narrate the incident at least from the moment Deepak cried out "maar diya" Sukhdayal could have said as to whether Virmani was caught by him with the murderous weapon in his hand or not : It is this lapse which in our view goes a long way in the matter presently under consideration. Sukhdayal would have been a completely independent witness or anyone of the persons who gathered subsequently as to the state of affairs of the Ravi Virmani being caught the veracity of Deepak's evidence could have founded corroboration and obviously would have laid acceptance of the same without a hitch anywhere this is however not done. The prosecution has examined eight witnesses of which three are Doctors, two formal witnesses, the Investigating Officer and the two brothers not one independent witness, though a large number of people were available, was examined. Sukhdayal was in a definite position to lend credence to Deepak or Sanjay's statement as an independent witness there has however been no effort on the part of the prosecution in that direction it is not that multiplicity of witnesses would improve the situation neither we ought to be understood to hold that corroboration from independent witnesses stands out to be a mandatory requirement witnesses though be interested can be relied upon provided however the evidence available on record is trustworthy and creates a confidence in the mind of the court that the scrutiny entails only pointing out of commission of an offence by the accused persons and that scrutiny in totality leads to an inevitable conclusion of the guilt of the accused. The issue thus for our consideration is whether the evidence available on record only leads to one conclusion that is the guilt of the accused. Incidentally, the prosecution involved both the father and the son whereas the father has to wait outside, the son was completing his part of duty in a most heinous killing of four persons. The Sessions Court, however in the absence of iota of evidence of even his presence outside the door acquitted the father though convicted the son under Section 302 and the High court converts the sentence of death penalty to that of life imprisonment but the State has also appealed against the High court's finding and as noticed above Mr. Sushil Kumar appearing for the State in no uncertain terms submitted that State's appeal is by reason of the fact that a social evil ought not to be allowed to be in the midst of the society since the accused Ravi is not only an evil but a social menace. The State's anxiety to put a man in the gallows is however not very plainly understandable neither it is understandable as to the State's attitude being eye for an eye and tooth for a tooth it is true that it is the responsibility to maintain law and order but the State

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(7 of 13)

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[CRLA-390/2009]

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on the other hand also maintains reformatory schools and if the State is failed to bring the accused to books in a court of law can the State's failure be countenanced by the apex Court? Why was not Sukhdayal examined? Why was not there any independent witness? Mr. Sushil Kumar had no answer. Obviously erudite as he is, he only contended that the records otherwise would be sufficient to bring home the charge and the penalty imposed by the Sessions Court. We are however not in a position to lend any credence to the submissions of Mr. Sushil Kumar that the death penalty ought not to have been transformed to that of life imprisonment as is sought to be done by the High court. In the wake of the aforesaid, the four Appeals preferred by the State and Deepak Kumar (Crl. As. Nos. 92728 and 929-30 of 2000) stand dismissed.

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On the strength of these arguments, learned Amicus Curiae submits that the prosecution has failed to prove the allegations levelled against the present appellant beyond all reasonable doubt. He prays that the appellant should be acquitted of the charges levelled against him by setting aside the judgment dated 30.03.2009.

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Per contra, learned Public Prosecutor has supported the judgment dated 30.03.2009 passed by learned trial court and relied upon the testimony of child witness PW12 Vijendra who had categorically stated that inflicted injuries to his mother by stones and Lathi (his father). Since his father threatened him of dire consequences, he was frightened, therefore, he could not narrate the story for good two weeks. There is no reason to disbelieve the statement of PW12 Vijendra. He argued that testimony of PW1 Ashok and PW4 Dhanraj is also worth credence as upon receiving the information, when they had reached the place of the occurrence, they saw the deceased Laxmi lying in a pool of blood in the courtyard of the house where she resided with the appellant. The testimony of PW1 Ashok and PW4 Dhanraj is fully

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(8 of 13)

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[CRLA-390/2009]

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corroborated by the medical evidence. PW14 Dr. S.N.Jingar had explained the places and dimensions of the injuries on the body of the deceased and stated that the cause of death in the opinion of the Medical Board is ‘Shock due to head injury’. He further submits that the cause of death as per the postmortem report also is head injury. The FSL report (Ex.P/45) shows presence of ‘B’ blood group on the clothes of the appellant matching with the blood group on the clothes of the deceased. He, therefore, submits that the learned trial court was absolutely correct in convicting the accused-appellant for the offences alleged in the present case.

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We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 30.03.2009 impugned herein.

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PW12 Vijendra is a child witness and his presence in the house is natural. In his testimony, he stated that at around 0404:30 pm, his father assaulted his mother with a stone and stick due to which his mother sustained injuries & fell on the ground . His father threatened him that if he told this to anybody, he would also be killed. He got frightened, therefore, he did not tell about this incident to anybody. During the cross examination of this witness, nothing significant was elicited so as to doubt the credibility or veracity of the deposition made by him in the examination in chief.

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PW1 Ashok and PW4 Dhanraj stated that when they reached the place of occurrence, the appellant was present there and on seeing them coming close, he ran away. The testimony of these witnesses to this effect does not appear to be believable and their statements appear to be improvised because, it is not possible to

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(9 of 13)

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[CRLA-390/2009]

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believe that the accused would wait for them to turn up before making good his escape.

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It has also come on record that the appellant used to suspect character of his wife Smt. Laxmi and had turned her out from the house on earlier 2-3 occasions after assaulting her, therefore, motive is also writ large in the present case for the appellant to murder his wife deceased Smt. Laxmi.

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However, their statements to the effect that deceased was lying in the courtyard with injuries on her head and she was profusely bleeding are fortified and getting corroborated by the testimony of other prosecution witnesses as PW2 Prem Shanker, PW5 Babu Lal and PW6 Shanker Lal who had reached the scene of occurrence and had deposed to this effect.

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PW15 Bhawani Singh was the investigating Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. He further stated that he completed the investigation under the provisions of law.

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We note that statement of the prosecution witnesses in particular PW12 Vijendra get complete corroboration from the evidence of PW14 Dr. S.N. Jinger who described the presence of the injuries on the body of the deceased tallying the same with the statement of PW12 Vijendra and the cause of death also being head injury. The postmortem report and FSL report thus clearly establish involvement of the accused-appellant in the present case.

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There cannot be two opinions after reading the statement of PW12 Vijendra who is son of the appellant as he clearly narrated the incident stating that it was none other than his father the

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(10 of 13)

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[CRLA-390/2009]

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appellant who inflicted fatal injuries to his mother deceased Smt. Laxmi. The presence of the appellant in the house is natural being the husband of the deceased and father of PW12 Vijendra.

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It has also come in the statements of PW1 Ashok and PW4 Dhanraj that the appellant returned from Mumbai and was staying in village Tikar for last more than one month. The argument of learned Amicus Curiae that the appellant was taken away by the police on 20.09.2008 but was arrested on the next day and there is overwriting in Ex.P/42 does not help the appellant for the simple reason that the arrest memo of the appellant shows the date of arrest to be 21.09.2008 as after thorough investigation, the Investigating Officer reached to a reasonable satisfaction that the appellant was involved in the commission of crime in question. Secondly, the correction in Ex.P/42 in the time of examination from 08:00 am to 08:00 pm by the Medical Officer is also of little importance and assistance to the appellant as nothing will turn out whether the appellant was examined by the medical officer at 8:00 am or at 08:00 pm. The testimony of PW12 Vijendra is clinching evidence establishing the guilt of the accused-appellant beyond all reasonable doubt.

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We further note that minor infractions and deviations will not vitiate the trial, more particularly, when there is strong and convincing evidence to sustain the conviction recorded against the appellant. The delay in recording statement of PW12 Vijendra is also satisfactorily explained as the appellant threatened the witness who is his own son who was terrified by the threat of his father and, therefore, he could not give statement to the police for two weeks. Besides, we note that no question was put either to PW12 Vijendra or Bhawani Singh, Investigating Officer (PW15) for

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(11 of 13)

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seeking an explanation for the delay occasioned in recording statement of PW12 Vijendra. Therefore, this argument of learned Amicus Curiae is noted to be rejected.

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The contention of learned Amicus Curiae with respect to nonexamination of any independent witness is also of no help to the appellant as the fate of the case will not change in view of the fact that PW12 Vijendra who is son of the appellant clearly deposed that the appellant was involved in the commission of the offences alleged and none else. Otherwise also, it is quality not quantity of evidence which matters.

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The argument of recovery being manipulated and doubtful also does not impress us as the FSL report (Ex.P/45) specifically shows the presence of the blood group of the deceased on the clothes of the appellant recovered on the information given by him under section 27 of the Evidence Act. Further, the case cited by learned Amicus Curiae is clearly distinguishable on the ground that the testimony of PW12 is worth credence and gets corroboration from the testimony of other witnesses as well as medical evidence. Hence, the same is of no help to the appellant being not applicable in the present case.

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We also note that in the statement of the appellant recorded under section 313 of Cr.PC, he has tried to take shelter of plea of alibi but the same appears to be just a weak and feeble attempt on the part of the appellant to save himself in the present case. His presence on the place of the incident is very well established in view of the testimony of PW12 Vijendra, PW1 Ashok and PW4 Dhanraj.

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We are gainfully supported by the observations of the Hon’ble Supreme Court in the case of Digamber Vaishnav and

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(12 of 13)

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[CRLA-390/2009]

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Ors. Vs. State of Chhattisgarh reported as

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MANU/SC/0316/2019 wherein the Hon’ble Supreme Court has held as under:

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"21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no Rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.

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This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a Rule of practical wisdom than law.

¶82

In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:

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36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no Rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a Rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. "

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(13 of 13)

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[CRLA-390/2009]

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In view of the discussion made above, the appeal filed by the accused-appellant is dismissed being devoid of merit and the judgment dated 30.03.2009 passed by the Additional Sessions Judge (Fast Track), Rajsamand is upheld. The record of the trial Court be returned forthwith.

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(VINIT KUMAR MATHUR),J

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(SANDEEP MEHTA),J

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7-Anil Singh/-

Sohan Lal v. State

Case brief

What is this about?

What did the court decide?

Sohan Lal v. State

Case brief

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