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CASE NO.: Appeal (crl.)  1219 of 2007

PETITIONER: Sanwariya Lal

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 14/09/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 1219 /2007 (arising out of S.L.P.(Crl) No. 5172/2006)

HARJIT SINGH BEDI,J. 1.              Leave granted. 2.              This is a case of filicide \026 the victim Rajesh aged  eight years was the son of the accused/appellant.   3.               This appeal arises out of the following facts. 4.            The appellant Sanwariya Lal was married to Shanti  Bai several years earlier and a son Rajesh was born out of the  marriage.  On account of a discord between the couple, Shanti  Bai returned to her parental home and the appellant started to  live with Anguri PW.7 whereafter Shanti Bai was given in  ’Nata’ to some other person though Rajesh remained with his  maternal grand parents.  It also appears that a settlement had  been arrived at between the appellant and his wife and their  respective second spouses and a sum of Rs.20, 000/- was  deposited in a fixed deposit in Rajesh’s name though he  continued to stay with his maternal grand parents  and was  admitted to a school in Jalian. The appellant and Anguri came  to the school to take the child with them but he showed his  reluctance.  The teacher too refused permission to take the  child during school hours and called his maternal grand  mother who permitted Rajesh to go with his father. On        25th December 2000 at about 5 or 6 p.m. information was  received by Prahlad PW.5, Rajesh’s maternal uncle that he had  been taken to hospital with injuries and had thereafter  succumbed to them.  A First Information Report was lodged by  Prahlad at Police Station Nimbaheda alleging that Rajesh had  been murdered.  Inquest proceedings under section 174 of the  Cr.P.C. were conducted and the dead body was dispatched for  the post-mortem examination. The Post-mortem conducted by  Dr. Ganpat Lal Jain confirmed the presence of several injuries  on the dead body \026 one, a fracture of the right pelvis and  contusion marks in the muscles and the second a contusion  on the head and neck and multiple abrasions on the right  hand and frontal side of the arms.  He also stated that the  injury on the pelvis could not have been caused by a simple  fall though the injury was possible if the fall had been on a  hard surface.   The trial Court in its judgment observed that  the case was based on circumstantial   evidence and for this  purpose placed reliance on the statement of PW4, the first  informant,  PW2 Bagdi Ram and PW5 Jasraj who deposed with  regard to the dispute between Shanti and the appellant and  circumstances which had led to the compromise between  them, their respective second marriages and that the appellant

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had suspected Rajesh’s paternity and believed  that he had  been conceived on account of an illicit relationship of his  mother with some other person.  It was further observed that  the appellant had his eye on the sum of Rs.20, 000/- that had  been deposited in a fixed deposit in the name of the deceased.   Two important witnesses PW7 Anguri the second wife of the  appellant and PW 10 Satya Nariyan a close relative and also a  resident of village Arniya Mali to which the appellant belonged  were however declared hostile.   By way of corroboration, the  prosecution also relied on the statement of R.B.Mishra PW18  who was the senior Branch Manager in the Bank of Baroda,  Nimbahaida and who deposed that on 28.8.2000 the appellant  had deposited a sum of Rs.20, 000/- in the name of the Raju.    The prosecution also sought support from the statement of  PW21 Lila Malviya the teacher in the Government Primary  School who stated that on 2.12.2000 the appellant and his  second wife had come to take Rajesh from School but had  been advised to wait till 4.30 pm, and finally the opinion of the  Medical Board that the injuries could not have been caused by  a fall from a by-cycle. 5.              The accused in his statement denied all the  allegations against him and further stated that Rajesh had  suffered serious injuries after falling from a by-cycle and also  produced DW-2 Bheru Lal, the maternal grand-father of the  deceased in support of this plea.                                                6.      The trial court relying on the evidence of the  aforesaid witness observed that as the appellant was none  other that the father of the deceased, and that the incident  had happened in the family home and no cogent explanation  for the death had been offered by the appellant, convicted the  appellant for an offence punishable under Section 302 of the  IPC and sentenced him  to undergo rigorous imprisonment for  life and to a fine of Rs.1000/- and in default thereof to  undergo an additional sentence of 6 months.  It is in this  circumstance that the appeal is before us. 7.      The learned counsel for the appellant has argued that  PW7 Anguri Bata and PW10 Satyanarain the two primary  witnesses who could have revealed as to what had actually  happened had been declared hostile at the trial and as such  the case rested on circumstantial evidence alone and the chain  of circumstances sufficient to justify an order of conviction  were not complete.  She has pointed out that from the medical  evidence the cause of death could not be categorically  ascertained and that the nature of injuries on the dead body  being contusions and abrasions largely suggested that the  death was on account of a fall from a by-cycle and this has  been confirmed by DW-2 who was none other than the  maternal grand-father of the deceased. 8.              The State counsel has on the contrary emphasized  that the chain of circumstances envisaged in a case of  circumstantial evidence was complete, and the judgment of  conviction was justified. 9.              We have gone through the evidence very carefully.   It is true that the only two persons who could have perhaps  put light on the incident that is PW7 and PW10 have not  supported the prosecution. We, however, find that the chain of  circumstances against the appellant is nonetheless clearly  made out.   The fact of marriage with Shanti, a dispute  between the couple which had resulted in a separation and a  second marriage for both under custom has been virtually  admitted.   It also stands admitted that a sum of Rs.20,000/-  had been deposited in a fixed deposit for 20 months by the  appellant in Rajesh’s name in the Bank of Baroda.  The  prosecution evidence further reveals that the appellant had  suspected Rajesh’s paternity and believed that he was  not the

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father and that he also had an eye on the fixed deposit which  had been put in the name of the deceased.  It is thus clear  that the motive for the incident stands proved. 10.             We also find from the prosecution evidence,  including the statement of the school teacher that the  appellant had taken the deceased away from school and we  tend to believe that this exercise had been planned as the  appellant intended to do away with him. 11.             We have also gone through the medical evidence  with particular reference to the statement of the Doctor who  had conducted the post-mortem examination.  The injuries are  reproduced below:         1. There is contusion of muscles and fracture of  supramus of Rt. side of pelvis. Ante mortal in nature.

       2. There is dissection of abdominal muscles from Rt.  Renal to public area present. Muscles contused. Ante mortal  in nature.

       3. Contusion 3 x 5 cm over Rt. Parietal region. Ante  mortem in nature.

       4. Contusion 6 x 5 cm over Parietal region. Ante  mortem in nature.

       5. Contusion 3 x 1 cm and 2 x 1 cm over Lt. Ear  region.  Ante mortem in nature.

       6. Abrasion 1.5 x 3 cm over on chin Rt. Side. Ante  mortem in nature.

       7. Abrasion 1.5 x 1 cm on frontal side of neck. Ante  mortem in nature.         8. Multiple abrasions of various sizes over Lt. side of  chest. Ante mortem in nature.

       9. Multiple abrasions of various sizes on Rt. Arm,  Rt. forearm. Ante mortem in nature.

       10. Abrasion 3 x 1 cm size over Lt. Shoulder joint.  Ante mortem in nature.

       11. Abrasion 2 x 2 cm on Rt. Knee, Rt. Thigh region.   Ante mortem in nature.

       12. Contusion 3 x 1 cm Lt. Knee and Lt. side of 4/3  of thigh.  Ante mortem in nature.

       13. Abrasion 3 x 1 cm size above umblius.  Ante  mortem in nature.

12.             We are of the opinion that such extensive injuries  including a fracture could not have caused by a simple fall as  has been suggested and clearly show the use of excessive  force.  It is pertinent to note that the appellant has not been  able to explain the presence of such a large number of injuries  as he was called upon to do as they had undoubtedly been  suffered at home.  The attempt by the defence to prop up  Rajesh’s grand father as a defence witness to support the story  of a fall from a by-cycle cannot be believed as he was not an  eye witness to the fall. 13.             We are therefore of the opinion that the  circumstances clearly implicate the appellant in the murder.   We accordingly dismiss the appeal.