SANWARIYA LALversusSTATE OF RAJASTHAN

)                                SANWARIYA LAL                                        A
                                          v.
                              STATE OF RAJASTHAN

                               SEPTEMBER 14, 2007

                         IS.B. SINHA AND H.S. BEDl,JJ.]                               B


          Penal Code, 1860-s. 302-Murder-Deceased being son of the
    accused, out of his broken marriage-Accused doubting the paternity of the
    deceased and also having eye on the fixed deposit in the name of deceased-
    At the relevant time deceased was with the accused-Multiple injuries on the
                                                                                      c
    deceased-Defence that the injuries were due to fall from bi-cycle-Witnesses
    to the incident turning hostile-Conviction by courts below on the basis of
    circumstantial evidence-On appeal, held: Conviction justified-The motive,
    the fact of the deceased being with the accused and, multiple injuries on the
    deceased leads to implicate the accused of the offence uls 302.               D
            Appellant-accused was prosecuted u/s 302 IPC, for having caused death
    of his son. Prosecution case was that the deceased was the son of the accused
    out of his first marriage. On account of dispute between the couple, they got
    separated. Both of them got remarried. Deceased remained with his maternal
    grand parents. Under a settlement between the accused and his first wife Rs.      E
    20,000/- had been deposited in the name of the deceased. Accused used to
    suspect paternity of the deceased and had also an eye on his fixed deposit.
    Accused and his second wife (PW 7) went to the school of the deceased, but
    the teacher did not grant permission to take him with them. He was sent with
'   them after the permission from the maternal grandmother of the deceased.
                                                                                      F
    Thereafter PW 5 (maternal uncle) got an information that the deceased had
    succumbed to injuries in the hospital. Accused was charge-sheeted. During
    trial, the two eye-witnesses turned hostile. Defence version was that the death
    of the deceased was on account of fall from a bi-cycle. The same was supported
    by maternal grand-father (DW 2) of the deceased. Trial Court on the basis of
    circumstantial evidence, convicted the accused. High Court confirmed the          G
    conviction. Hence the present appeal.

          Dismissing the appeal, the Court

          HELD: 1. The circumstances of the case clearly implicate the appellant
                                         943                                          H
    944                    SUPREME COURT REPORTS                   [2007] 9 S.C.R.

A in the murder. The chain of circumstances against the appellant is nonetheless
    clearly made out. The fact of marriage with 'S' (his first wife), a dispute
    between them, 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
B   the appellant in the name of the deceased. The prosecution evidence further
    reveals that the appellant had suspected paternity of the deceased and believed
    that he was not the 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. !Paras 13 and 9) 1948-D; 947-A, Bl

C         2. It is found from the prosecution evidence, including the statement of
    the school teacher that the appellant had taken the deceased away from the
    school and the Court tends to believe that this exercise had been planned as
    the appellant intended to do away with him. (Para 10) 1947-C)

            3. In~iew of the medical evidence, such extensive injuries including a
D fracture could not have been caused by a simple fall as has been suggested
    and clearly show the use of excessive force. 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 grand father of deceased as a defence witness to support
    the story of a fall from a bi-cycle cannot be believed as he was not an eye-
E   witness to the fall. !Para 121 [948-C, D)

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1219 of
    2007.

          From the Judgment and Order dated 13.9.2005 of the High Court of
F   Judicature for Rajasthan at Jodhpur in D.B. Crl. Appeal No. 362 of 2002.

            Shipra Ghose (A.C.)for the Appellant.

            Jatinder Kumar Bhatia for the Respondent.

G           The Judgment of the Court was delivered by

            HARJIT SINGH BEDI, J. I. Leave granted.

         2. This is a case of filicide - the victim Rajesh aged eight years was the
    son of the accused/appellant.
H
                 SANWARIYA LAL v. STATE [H.S.BEDI,J.]                   945
     3. This appeal arises out of the following facts.                        A
       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. B
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 C
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 D
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 - one, a fracture of the right pelvis and contusion marks in the muscles E
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 F
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 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 G
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
 I 0 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 H
    946                   SUPREME COURT REPORTS                    [2007] 9 S.C.R.

A 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 PW2 l 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
B   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
C   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
D   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. I 000/- and
    in default thereof to undergo an additional sentence of 6 months. It is in this
    circumstance that the appeal is before us.

E          7. The learned counsel for the appellant has argued that PW7 Anguri
    Bata and PWIO 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
F   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.

G         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
H   PW7 and PWIO have not supported the prosecution. We, however, find that
                    SANWARIYA LAL v. STATE [H.S. BEDI, J.]                947
the chain of circumstances against the appellant is nonetheless clearly made      A.
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
be~n 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       B
the 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     C
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        D
examination. The injuries are reproduced below:

      I. 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        E
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.
                                                                                  F
      5. Contusion 3 x I cm and 2 x l 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 l cm on frontal side of neck. Ante mortem in nature.       G
     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.
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    948                     SUPREME COURT REPORTS                 [2007] 9 S.C.R.

A         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.

B        12. Contusion 3 x l cm Lt. Knee and Lt. side of 413 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
C   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
D   as a defence witness to support the story of a fall from a by-cycle cannot be
    believed as he was not an eye wimess 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.

E   K.K.T.                                                   Appeal dismissed.




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