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2018 Supreme(Raj) 1312
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
MOHAMMAD RAFIQ, GOVERDHAN BARDHAR, JJ.
PAPPU KHAN - Appellant
Vs.
STATE OF RAJASTHAN - Respondent
Criminal Appeal No. 966 of 2011
Decided On : 12-01-2018
For the Appellant :Pratap Singh Sirohi, Advocate.
For the Respondent: Mrs. Sonia Shandilya, Public Prosecutor.
The burden of proof is on the prosecution to prove the guilt of an accused, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - CONVICTION AND SENTENCE - EVIDENCE - CHILD WITNESS - SECTION 118 OF THE INDIAN EVIDENCE ACT - SECTION 106 OF THE EVIDENCE ACT - BURDEN OF PROOF - EXPLANATION BY THE ACCUSED - CIRCUMSTANTIAL EVIDENCE - LAST SEEN TOGETHER - FAILURE TO OFFER EXPLANATION - ADDITIONAL LINK IN THE CHAIN OF CIRCUMSTANCES.
Fact of the Case:
The appellant was convicted and sentenced to life imprisonment for the murder of his wife. The prosecution's case was that the appellant and his wife were seen together shortly before the incident, and that the incident took place in the dwelling home where the appellant also normally resided. The appellant did not offer any explanation for the injuries to his wife, and the prosecution argued that this was a strong circumstance indicating that he was responsible for the crime.
Finding of the Court:
The court held that the prosecution had proved that the appellant had caused the death of the deceased, by adducing cogent and reliable evidence, beyond all reasonable doubts. The court relied on the testimony of the child witness, who was the daughter of the deceased and the appellant, and found that her testimony was trustworthy and reliable. The court also relied on the postmortem report, which showed that the deceased had sustained multiple incised wounds, and on the fact that the appellant had failed to offer any explanation for the injuries to his wife.
Issues: 1. Whether the testimony of the child witness was admissible and reliable. 2. Whether the prosecution had proved that the appellant had caused the death of the deceased beyond all reasonable doubts.
Ratio Decidendi: 1. The court held that the testimony of the child witness was admissible and reliable, relying on the provisions of Section 118 of the Indian Evidence Act, which states that every person is competent as a witness unless the court considers that he is prevented from considering the question put to him or from giving reasonable reason because of the factor of age i.e. tender or extreme age. 2. The court held that the prosecution had proved that the appellant had caused the death of the deceased beyond all reasonable doubts, relying on the testimony of the child witness, the postmortem report, and the fact that the appellant had failed to offer any explanation for the injuries to his wife.
Final Decision: The court dismissed the appeal and affirmed the judgment of conviction and sentence passed by the trial court.
Goverdhan Bardhar, J.
The instant criminal appeal has been filed by the accused appellant against the Judgment of conviction and sentence dated 29.04.2011 passed by learned Addl. Sessions Judge, Fast Track, Tonk (Rajasthan) in Sessions Cases No. 39/2010 (52/2010) whereby the learned trial court has convicted and sentenced the accused appellant under section 302 IPC to life imprisonment and a fine of Rs. 20,000/-, in default of payment of fine the accused appellant was to further undergo rigorous imprisonment of two years.
2. Facts of the case briefly stated are that the complainant Sabir Hussain (PW14) submitted a written report (Ex.P21) to S.H.O., Police Station Kotwali, Tonk at 1:00 P.M on 25.5.2010 narrating that his sister's marriage was solemnized with Pappu Khan s/o Faqir Mohammad in the year 2000. He alleged that from the very starting behavior of Pappu and his family members with his sister was not good. She was subjected to harassment and cruelty in connection with demand of dowry. Moreover, about three years ago, Pappu Khan and her in-laws gave her beating in connection with demand of dowry and she was forcefully moved out of the matrimonial home. For that incident an FIR was also lodged with Police Station Kotwali. Moreover, an application under section 125 Cr.P.C., 1973 was also filed thereafter and both the matters are pending in the concerned Court. On 23.05.2010 at about 10:00 P.M Pappu Khan and his family members came to take his sister to their house. They were counselled by the elder persons and it was assured that her sister Seema would be well treated, hence they agreed and allowed her to go along-with Pappu Khan. Pappu took Seema and all four children along-with luggage and further assured that he would be coming to the Court next day on 24.05.2010 to submit compromise in writing. When on 24.05.2010 Pappu did not come to the Court, the informant made inquiries. Then Pappu told that he would surely come on the next day. The complainant further alleged that in the night at about 10-10:30 P.M. due to certain anxiety he decided to go to his sister's place and on the way his 'Bhanja' also met him at Ghanta Ghar. When they reached at Seema's in-laws place, they came to know that Pappu and Seema were living on rent, in the nearby house of Sunari. When he knocked the door, he heard certain loud noises from inside. They pushed the door forcefully and entered in the room and found that Pappu, Salim, Sahadut and Nafis were beating Seema. Pappu was having a knife in his hand and he was uninterruptedly causing knife blows to her. His sister fall down and started bleeding. All these persons then ran away from there. His sister was taken to the hospital with the help of police persons where she was declared brought dead. Thus, after hatching conspiracy Pappu, Salim, Sahadat and Nafis have committed the murder of his sister.
3. On recording the said written report, a case bearing No. 72/2010 (Ex.P30) for the offence under Section 302 IPC was registered. After completion of investigation, the police submitted charge-sheet against accused appellant under section 302 IPC in the Court of Judicial Magistrate, Tonk. After taking cognizance in the matter, the case was committed to the Court of Sessions Judge, Tonk from where the case was transferred to the learned trial court. The learned trial court thereafter framed the charge against the accused appellant under section 302 IPC, who denied the charges and claimed to be tried. The prosecution in support of its case got the statements of seventeen witnesses recorded and thirty three documents exhibited. Thereafter, the accused appellant was examined under section 313 Cr.P.C., 1973 In defence, the accused appellant produced two witnesses DW1-Sayyed Ahmed and DW2-Mohd. Wahid. The learned trial court after hearing the final arguments, convicted and sentenced the accused appellant for the charges levelled against him vide impugned judgment dated 29.04.2011. The accused appell
