- (1.) THIS appeal has been preferred by the appellant-accused Devi Lal against the judgment and order dated 12th July 2004 by which he has been convicted for committing offence punishable under Sec. 302, IPC and has been sentenced to undergo life imprisonment, with fine of Rs. 5000/- and in default of payment of fine, to undergo one year's simple imprisonment, in Sessions Case No. 105/2003, by the Court of Additional Sessions Judge (Fast Track) No. 1, Dungarpur.
(2.) BRIEF facts of the case are that on 14th May 2003 a written report (Ex. P1) was submitted by the complainant Smt. Pushpa at Police Station, Ganeshpura of district Dungarpur in the midnight of 13th, 14th May 2003 at 2.00 a.m. stating therein that she is married to appellant-accused Devi Lal. Her marriage took place about 6-7 years ago and after this marriage she gave birth to one girl baby. While said girl baby was in the womb, disputes started between the complainant- wife and appellant-husband. However, after one month to the delivery of the baby, the appellant brought another lady Smt. Sajudi and contracted 'Nata marriage' with her and started torturing the complainant. In the night of previous Diwali, she was thrown out of her husband's house and since then the complainant started living with her parents. The complainant had also lodged a case in Police Station, Ganeshpura earlier, which is going on and because of the above reasons, her husband was having enmity with the complainant. The complainant Smt. Pushpa already had apprehension that her husband may kill her. On 13th-14th May 2003, after taking the meal, her father, mother and brother-all went to sleep in the open courtyard and complainant, with her minor daughter, was sleeping in the room and door of her room was closed. At about 11.00 p.m. in the night of 13th May 2003 the complainant heard some voices of knocking of door and some shouting then she, instead of opening the door, saw from a wreck in the door that her husband was inflicting injuries with a sword upon her father Kanji, mother Smt. Doli Bai and brother Pappu. The appellant- accused tried to get door of room of the complainant open, upon which the complainant started shouting. In this situation, the appellant-accused started running. The appellant- accused was accompanied by one more person, to whom the complainant could not recognize. On hearing her shouting voice, complainant's uncle Bharta s/o Panna came there, upon which she opened the door of the room. The complainant found that her mother, father and the brother were lying dead on the spot. In her complaint Ex. P1, she stated that her uncle Bharta also saw Devi Lal running away holding sword in his hand. Upon this report, a case under Sec. 302, IPC was registered and investigation started. During the investigation, panchnama of body of Kanji Ex. P2, panchnama of body of deceased Pappu Ex. P3 and panchnama of dead body of Smt. Doli mother of the complainant, Ex. P4 were prepared. Site map Ex. P6 was also prepared and sample of the blood stained soil Ex. P8 was taken. The accused was arrested and he gave information under Sec. 27 of the Evidence Act (Ex. P19), in furtherance of which the blood-stained sword (talwar) was recovered, for which fard Ex. P21 was prepared. The blood-stained shirt of the accused was also recovered and for that a memo Ex. P25 was prepared postmortems of the three bodies were conducted and reports Exs. P56, P57 and P58 were given. The statements of witnesses were recorded under Sec. 161, Cr. P.C. photographs of the site were taken, which were marked Ex. P28 to P54 and their negatives were also exhibited. The complainant Smt. Pushpa was examined under Sec. 164, Cr. PC. and FSL report was also obtained. In the trial Court, the star witness Smt. Pushpa was not examined and ultimately, the trial Court closed evidence of Smt. Pushpa vide order dated 7th May 2004. However, the trial Court observed that said complainant Smt. Pushpa, though did not appear in the witness-box, gave statements under Sec. 164, Cr. PC. which is exhibited as Ex. P64 and can be read in evidence as secondary evidence, as there is no legal bar in doing so and her statements are supported by medical evidence and the evidence of Shri Sandeep Sharma, Additional Chief Judicial Magistrate, Sagwada (P.W. 19). Therefore, relying upon said statements of Smt. Pushpa recorded under Sec. 164, Cr. P.C. after observing that there is possibility that Smt. Pushpa might have been abducted, obviously by the accused-appellant or appellant's side, convicted the appellant-accused for committing offence punishable under Sec. 302, IPC. It will be relevant to mention here that the sword, by which it has been alleged that injuries have been inflicted, was recovered from a well and since in the well there was sufficient quantity of water, therefore, it appears that when the sword was sent to the Forensic Science Laboratory, report came that there were no blood stains on the sword. At this juncture, it is relevant to mention here that the witnesses of the recovery memo of the sword P.W. 10 Moga and P.W. 11 Galji, both turned hostile and in the same way, witnesses of the recovery of the cover of sword of appellant-accused P.W. 13 and P.W. 14 also turned hostile. The trial Court was of the view that the prosecution has fully proved the case that the victims died because of the injuries inflicted by sharp-edged weapon, obviously which could have caused by the sword and turning of these witnesses hostile cannot affect merit of the case in proving guilt of the accused. Learned counsel for the appellant vehemently submitted that the witness Smt. Pushpa did not appear in the witness-box and therefore, has not supported the prosecution case. It is submitted that the other witnesses neither could have been eye-witness nor their evidence proves the connection of the appellant-accused with the crime in any manner because none of the alleged witnesses even saw the appellant running with the sword. It is also submitted that the witness P.W. 8 Tulsi, in the cross-examination, admitted that his house was one kilometer away from house of the complainant and therefore, he could not have seen the appellant-accused or the person who inflicted injuries upon victims running with sword, as he could not have reached on the spot nor he could have heard the voices from place of incident so as to wake up and run towards the spot.
(3.) THE other witness P.W. 7 Bharta is uncle of the complainant and though he denied the suggestion that his house is 1.5 kilometers away from house of the complainant Smt. Pushpa but he admitted that the appellant never visited witness's house nor the witness visited appellant's house. In the cross-examination, he stated that he saw a person running, from 200 feet distance and with him no other person was there; which contradicted the fact stated in the complaint. In the cross-examination, he stated that he found the house of Smt. Pushpa locked when he reached on the spot, which falsifies the prosecution case. THE witness, P.W. 7 Bharta, further admitted that he even did not see face of the person running from there as he saw the person from back side of said person. Learned counsel for the appellant further submitted that Smt. Pushpa and the Investigating Officer have not been examined. The accused arrest memo was not proved, and therefore, the appellant cannot be connected with the crime in any manner because before proving the information under Sec. 27 of the Evidence Act it is necessary to prove arrest of the accused and his giving information while in custody, in the case for which the matter was being investigated. The FSL report was not even exhibited. It is also submitted that statement of Smt. Pushpa was recorded under Sec. 164, Cr. PC. after about 2xh months and furthermore, there is no evidence on record on the basis of which identity of said complainant Smt. Pushpa stand established, so as to find out that she herself gave statements before the learned Magistrate under Sec. 164, Cr. PC. It is also submitted that the statements under Sec. 164, Cr. PC. also are not in better footing than statements recorded under Sec. 161, Cr. PC. and the statement recorded under Sec. 164, Cr. PC. is not substantive piece of evidence. It could have been used only for contradiction/corroborating and cannot be become part of the evidence simply because it was recorded by the Magistrate. ;