Allowed

Bheru Lal v. State

Rajasthan HC22 Feb 2024CRLAD/168/2020

Case brief

AI extract

What is this about?

The High Court acquitted the appellant, following the acquittal of his co-accused. Relying on the earlier judgment, the Court found the prosecution failed to prove the chain of circumstances. The conviction was quashed, and the appellant was ordered released on personal and surety bonds conditional upon SLP appearance.

What did the court decide?

The impugned judgment of conviction and sentence dated 12.02.2015 is quashed and set aside. The appellant is acquitted. He shall be released forthwith if not wanted in any other case.

Bheru Lal Vs State — Murder and Culpable Homicide | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Criminal Appeal (Db) No. 168/2020

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Bheru Lal S/o Unkar Lal, Aged About 66 Years, B/c Suthar, R/o Adkiya, P.s. Relmagra District Rajsamand. (At Present Confined In Central Jail, Udaipur).

----Appellant

Versus

State, Through Pp

----Respondent

For Appellant(s)	: Nonepresent
For Respondent(s)	: Mr. B.R. Bishnoi,PP

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Order

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22/02/2024

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The accused-appellant in this appeal, through Jail, has been convicted and sentenced as below vide judgment of conviction and order of sentence dated 12.02.2015 passed by the learned Addl. District & Sessions Judge, Nimbaheda, in Session Case No.19/2013:

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Offence	Sentence	Fine
302 r/w 34 IPC	Life imprisonment	Rs.2,000/-, in default of
		which, to further undergo 2 month’s R.I.

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Brief facts of the case are that on 07.12.2012, one Amar Singh (complainant) submitted a written report before the Police Station Nikumbh, District Chittorgarh alleging therein that the present appellant approached him and sought a house on rent by showing himself (appellant) a resident of Kankroli. The complainant was having an old house, which was given to the present appellant on rent basis, whereupon, the present appellant

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started living in the house with one lady, and also two girls aged about 10 and 12 years respectively. It is alleged that 4-5 days prior to submission of the said written report, the present appellant and his companion (woman) along with two girls went away. On the day of the lodging of report, the complainant went to his rented house and upon finding a foul smell emanating from the house, the police was informed and thereafter the door of the house was opened, whereupon a dead body was found lying there. 2.1. On the basis of the said report, an FIR No.139/2012 has been registered at Police Station Nikumbh, District Chittorgarh for the offence under Section 302 of IPC. After investigation, a charge-sheet was filed against the appellant and one Anchi Bai for the offences under Sections 302 and 201/34 of IPC. Since the offences were triable by a Court of Sessions, the case was committed and transferred to the Court of learend Addl. District & Sessions Judge, Nimbahera for trial.

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2.2. The learned trial court framed charges for the offences mentioned above against both the accused who pleaded not guilty and claimed trial. The prosecution produced as many as 14 witnesses and exhibited 38 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the allegations appearing against them in the prosecution case, the accused denied the same and claimed to have been falsely implicated. However, no evidence was led in defence. 2.3. The learned trial court after hearing the parties and going through the material available on record, held the accusedappellant and Anchi Bai guilty of the offences charged, and

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convicted and sentenced them vide the impugned judgment dated 12.02.2015, as above.

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It is brought to the notice of this Court that the co-accused Anchi Bai, who was also convicted and sentenced for the same offence vide the impugned judgment dated 12.02.2015, preferred a separate appeal before this Court bearing D.B. Criminal Appeal No.1193/2015, decided on 11.07.2019, in which, the complete acquittal of Anchi Bai has been ordered by setting aside the impugned judgment dated 12.02.2015 passed by learned trial court. The operative portion passed in the said D.B. Criminal Appeal No.1193/2015, dealing with the various witnesses, reads as under :-

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"After hearing the arguments advanced by learned Public Prosecutor and learned defence counsel and appreciating the evidence adduced on record, the learned trial judge held both the accused guilty of the offences alleged and convicted and sentenced them as above. The accused-appellant Anchi has forwarded the instant jail appeal whereas the accused Bherulal appears not to have filed any appeal against the impugned judgment.

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Shri Dilip Sharma, learned amicus curiae representing the appellant herein vehemently and fervently urged that the impugned judgment is bad in the eyes of law and so also in facts. The appellant was not named in the FIR nor was any witness made to identify her during investigation as being the woman who had accompanied the accused Bherulal as his wife while renting the house in question. He urged that it is undisputed that the accused Bherulal and the appellant herein were not married to each other and thus, there cannot exist any ground to believe that the appellant was accompanying him at the time of incident. He further urges that even if it is assumed for a moment that the appellant was the woman who stayed with accused Bheurlal on rent in the house of the first informant Amar Singh, then also, in absence of any

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plausible evidence to prove that the appellant killed the girl, she cannot be held guilty for the offences alleged. He further submitted that Govind Giri (PW.8) stated that the deceased Shyamu was his real sister and his father was Shambhu Giri. In his cross examination, Govind Giri (PW.8) stated that his sister went to stay with Bherulal. He urged that since there is no evidence whatsoever on record of the case to show that the appellant was accompanying Bherulal and was living with him as his wife, her conviction for the offence alleged is absolutely uncalled for. He thus, implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused of the charges.

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Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned defence counsel and urged that there is ample evidence on record of the case to show that the appellant accompanied accused Bheurlal as

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his wife and lived in the house of Amar Singh (PW.1) on rent. The deceased was the appellant’s daughter. Since, she was creating a hurdle in the illicit affair between the appellant and the accused Bherulal, both conspired and killed the girl and then abandoned the dead body in the house of Amar Singh (PW.1). He thus, urges that the impugned judgment does not warrant any interference whatsoever.

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We have given our thoughtful consideration to the submissions advanced at bar and have re-appreciated and sifted the evidence available on record threadbare and carefully perused the impugned judgment.

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The case of the prosecution rests totally on circumstantial evidence. The prosecution has portrayed that the deceased Shyamu was the daughter of the appellant and one Shambhu Giri and that the appellant abandoned her husband and was living in an extramarital affair with accused Bherulal. It is further alleged that Bherulal and the appellant took the house of Amar Singh (PW.1) on rent. The girl came and started living with them a few months later which allegedly created a hurdle in their immoral relationship and thus, the accused eliminated her. Since there is no direct evidence of the incident, manifestly, the prosecution heavily banks upon the reverse burden of proof applicable by virtue of Section 106 of Indian Evidence Act so as to require the accused to prove as to

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how the girl met an homicidal death in the house where all three were living together. The abscondance of the accused after the incident is also a circumstance which the prosecution relied upon. The fact that the girl met with a homicidal death is well established by the postmortem report (Ex.P/5) which was proved by Dr. Rajiv Mangal (PW.4) who opined that the deceased was hit on the head by a blunt object and the resultant impact, caused excessive blood loss and internal haemorrhage leading to her death.

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First informant Amar Singh (PW.1) is the most material witness of the prosecution who claimed that the accused took his house on rent. He lodged the FIR (Ex.P/20) at the PS Nikumbh. Only accused Bherulal Suthar is named whereas the identity of the woman who was accompanying him is not disclosed in the FIR. Amar Singh, of-course identified the appellant herein in his sworn testimony, but the fact remains that nonmentioning of the name of the accused-appellant herein in the FIR would go to the root of the matter and the omission is far too significant so as to be ignored. In this background, we feel that from the evidence of Amar Singh (PW.1), it cannot be established that the accused- appellant was unquestionably the woman who was accompanying the accused Bherulal.

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PW.2 Bhanwar Singh vaguely stated that the accused- ppellant used to live on rent in the house of Amar Singh for the last six months. A girl aged about 10-12 years used to stay with them.

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PW.3 Ratanlal named the accused Bherulal but did not refer to the appellant as being the woman who was staying with him. PW.4 Dr. Rajiv Mangal conducted the postmortem upon the dead body of the girl Shyamu and issued the postmortem report (Ex.P/5).

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PW.5 Ramsingh stated that his house was given on rent to accused Bherulal Suthar. A woman used to live with him. However, this witness did not identify the appellant herein.

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PW.6 Suraj Kunwar being the wife of Manohar Singh stated that Bherulal used to stay in the house of Ram Singh on rent. This witness also did not name and identify the appellant as the woman who was staying with Bherulal. However, she stated that the woman used to call the deceased to be her daughter.

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PW-7 Bheru Singh was the witness regarding preparation of the site inspection plan and seizure of

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the blood stained articles from the place of the occurrence etc.

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PW.8 Govind Giri stated that the deceased Shyamu was his real sister. He identified her dead body. His father’s name was Shambhu Giri. Most significantly, this witness did not state that

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the appellant had abandoned Shambhu Giri or was living in an

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extramarital relationship with the accused Bherulal.

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PW.9 Dr. Pushpendra Gupta stated that he examined both accused and issued their medical reports (Ex.P/14 & Ex.P/15)

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PW.10 Mansingh was the constable who carried articles to the police station and deposited the same at the FSL, Udaipur. PW.11 Jagdish stated that the police arrested the accused in his presence but he could not identify the appellant as the woman who had been arrested.

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PW.12 Onkar Jat also stood as witness in the arrest memo of the two accused and so also regarding the seizures made from the accused Bherulal. PW.13 Mohandas was the SHO of the PS Nikumbh on the relevant date. He registered the FIR; undertook the necessary steps of investigation; arrested the accused, recovered incriminating articles at the instance of accused Bherulal and filed a charge sheet against the accused. On minute and threadbare reappraisal of the evidence of all these witnesses, we are duly satisfied that there is no material on record of the case which can satisfy the Court beyond all manner of doubt that the appellant had abandoned her husband and was living in an extramarital affair with the accused Bherulal. There is no satisfactory evidence whatsoever on record to establish that the appellant was the woman who accompanied accused Bherulal and was staying with him in the rental premises. The omission of the name of the appellant in the FIR makes the evidence of Amar Singh (PW.1) who has taken her name in his sworn testimony, doubtful.

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The lack of convincing evidence on the aspect that the appellant was unquestionably the woman who was living with accused Bherulal on rent in the house of Amar Singh (PW.1) would create a question mark on

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the applicability of the reverse burden of proof by virtue of Section 106 of Indian Evidence Act to her extent. Admittedly, no incriminating recovery was made from or at the instance of the accused-appellant during the course of investigation. The appellant was a stranger to the villagers and thus, if at all the IO was desirous to establish her culpability then he should have ensured that the arrested woman was subjected to test identification by the concerned witnesses. The prosecution has tried to draw much water from the circumstance that the appellant was living in an extramarital affair with Bherulal after having abandoned her husband Shambhu Giri. The best witness for giving evidence to this effect would be PW.8 Govind Giri S/o Shambhu Giri and the appellant. However, his testimony is totally silent on this aspect. Thus, there is no material available on record to show that the appellant was carrying on in an extramarital relationship with Bherulal. Otherwise also, looking to the advance ages of both the accused, it does not stand to reason that they could indulge in an illicit affair at that stage of their lives.

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In wake of discussion made hereinabove, we are of the firm opinion that the prosecution has not led satisfactory evidence so as to establish beyond all manner of doubt that the appellant was the woman who was staying in the house in question with the accused Bherulal where the girl Shyamu was murdered. The fact that the dead body was that of Shyamu, the daughter of the appellant would create some doubt against her but even a strong doubt cannot take place of proof. Failure of the prosecution to lead evidence to the effect that the appellant had abandoned her husband and was living in an illicit affair with the accused Bherulal creates doubt upon the veracity of the prosecution case.

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Law is well settled that in a case of circumstantial evidence, the prosecution is required to prove every link in the chain of circumstances so as to complete the chain pointing infallibly towards the guilt of the accused. Even if, a single link is snapped, the chain would be incomplete and the accused would be entitled to acquittal by giving him/her the benefit of doubt.

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In wake of the discussion made hereinabove and since we have held that the prosecution could not prove each and every link in the chain of circumstances so as to point infallibly and invariably to the guilt of the

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accused-appellant, as a consequence, we are of the firm opinion that the trial court committed grave error in law and in facts while marshalling the facts and convicting the appellant as above by the impugned judgment. The impugned judgment does not stand to scrutiny to the extent, the appellant Anchi Bai was convicted and sentenced for the offences under Sections 302/34 IPC. Hence, the same is set aside to that extent. The appeal is allowed. While setting aside the impugned judgment dated 12.02.2015 passed by learned Addl. District & Sessions Judge, Nimbaheda qua the appellant Anchi Bai, she is acquitted of the charges. She is in custody and shall be released forthwith, if not wanted, in any other case.

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However, keeping in view the provisions of Section 437-A Cr.P.C. the accused appellant is directed to furnish personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a special leave petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court."

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Unfortunately, no one has put in appearance on behalf of the appellant, but the learned Public Prosecutor while opposing the appeal fairly submits that the co-accused Anchi Bai and the present accused-appellant Bheru Lal are saddled with the same set of evidence with almost same kind of allegations, and thus, were convicted and sentenced vide the common impugned judgment. Learned Public Prosecutor also submits that no SLP against the judgment of acquittal rendered in the aforesaid appeal filed by the co-accused Anchi Bai has been preferred and that the said Anchi Bai was acquitted from the same charges as involved herein.

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After carefully examining the record of the case as well as the impugned judgment of Anchi Bai passed by a Division Bench of this Hon'ble Court, this Court finds that there is a detailed

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description of each and every evidence, which is there on record and after a detailed discussion, a Division Bench of this Court has observed that there is a strong doubt in the prosecution story, and that there was a complete failure to lead any evidence which could clearly show involvement of the accused in the alleged crime in question. The Hon'ble Division Bench has also held that the prosecution was required to prove every link of chain of circumstances, which could infallibly point towards the guilt of the accused and even if, a single link is snapped, the chain would be incomplete and the accused would be entitled to acquittal by giving the benefit of doubt.

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5.1 This Court is conscious of the fact that the appellant has already undergone a custody of more than 11 years. 6. In light of the complete factual matrix of the case, particularly the fact that the impugned judgment of conviction and order of sentence dated 12.02.2015 has already been visited by a Division Bench of this Hon’ble Court on the same set of evidence and on the same parameters of allegations, and thus, having regard to the overall facts and circumstances of the case, the present appeal deserves to be allowed and the same is hereby allowed, on the same terms as that of Anchi Bai. Accordingly, the judgment of conviction and sentence of order dated 12.02.2015 passed by learned Addl. District & Sessions Judge, Nimbaheda in Sessions Case no.19/2013 is quashed and set aside qua the appellant Bheru Lal. Thus, the appellant is henceforth acquitted of the charges levelled against him and being in custody, he shall be released forthwith, if not wanted in any other case.

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However, keeping in view the provisions of Section 437-A Cr.P.C. the accused appellant is directed to furnish personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a special leave petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.

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It is made clear that the appeal was received from jail and this Court appointed an Advocate as amicus curiae to represent the appellant in this appeal, but none appears for the legal aid, thus, none shall be eligible for any kind of remuneration in connection with the instant appeal.

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(MADAN GOPAL VYAS),J

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(DR.PUSHPENDRA SINGH BHATI),J

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44-Sudheer/devrajP/-

Bheru Lal v. State

Case brief

What is this about?

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Bheru Lal v. State

Case brief

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