Rajasthan High Court - Jodhpur
Kheema Ram @ Kheema vs State on 1 July, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 499/2015
Kheema Ram @ Kheema S/o Shri Kera Ram Ji, By caste
Choudhary, R/o Daylana Kallan, Tehsil Desuri, District Pali,
Rajasthan, and lastly resident at Hanuman Mini Market,
Survey No.44 Pord Road, Colewari, Kothurd, Puna,
Maharasthra.
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Dhirendra Singh
Mr. Rajiv Bishnoi
For Respondent(s) : Mr. N.S. Bhati, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI Judgment Date of Pronouncement :- 01/07/2019 Judgment Reserved on :- 23/05/2019 (Per Hon'ble Mehta,J.) (Reportable) The appellant herein has been convicted and sentenced as below vide the judgment dated 18.05.2015 passed by learned Addl. Sessions Judge, Bali District Pali in Sessions Case No.2/2011:-
Under Section 302 Life Imprisonment and a fine of Rs.5,000/-. In default of payment of fine to further undergo 6 months' simple imprisonment.
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Under Section 366 Five years' RI and a fine of
Rs.3,000/-. In default of payment of
fine to further undergo four months'
simple imprisonment.
Under Section 201 Five years' RI and a fine of
Rs.2,000/-. In default of payment of
fine to further undergo two months'
simple imprisonment.
(All the sentences were ordered to run concurrently.) Being aggrieved of his conviction and sentences, the appellant has preferred this appeal under Section 374 CrPC.
Brief facts relevant and essential for disposal of the instant appeal are noted hereinbelow.
Shri Ramaram S/o Shri Khetaji, R/o Village Neepal, PS Desuri District Pali lodged a missing person report (Ex.P/17) to the SHO PS Desuri on 05.10.2010 alleging inter alia that his daughter Smt. Geeta had been married to Amra Ram Choudhary, resident of Village Barod. Two months earlier, she had come to his house for delivery because she was pregnant. She gave birth to a female child about 20-21 days earlier. On 04.10.2010, he and his family members had gone to the field and Smt. Geeta was at the house with her child. He returned home in the evening on which his mother-in-law told him that Geeta had gone out of the house at about 12 to 1 O'clock (Downloaded on 01/07/2019 at 10:10:03 PM) (3 of 15) [CRLA-499/2015] saying that she was going to the fields but she did not return home. Ramaram made inquiries with his relatives and in the neighbourhood but he could not get a trace of Smt. Geeta.
Smt. Geeta was wearing a Ghaghra, blouse and red coloured Chundari and a few ornaments as well. He alleged that Smt. Geeta was having a mobile (No.9680616811 ) which she had carried with her while going out of the house. On the basis of this report, a Missing Person Report No.10 (hereinafter referred to as 'MPR') was registered at the Police Station Desuri and search was initiated for the whereabouts of the missing girl.
Shri Ramaram lodged a second written report (Ex.P/16) to the SHO PS Desuri on 09.10.2010 alleging inter alia that his daughter had come to his house for the purpose of her delivery. In addition to the allegations set out in the Missing Person Report No.10, he also alleged that he came to know in the intervening period that his daughter Smt. Geeta had been offered allurement by the accused-appellant Kheema Ram with the intention of marrying her. He alleged that the accused-appellant had taken away his daughter Smt. Geeta in his maruti car (No. MH 12 P 3529) and that Moolaram, Nainaram and Megharam Choudhary had seen him taking her away. This report was treated to be an FIR and a formal report No.100/10 (Ex.P/57) was registered at the Police Station Desuri against the accused-appellant for the offence under (Downloaded on 01/07/2019 at 10:10:03 PM) (4 of 15) [CRLA-499/2015] Section 366 IPC. The statements of aforenamed witnesses i.e., namely Moolaram, Nenaram and Megharam Choudhary who claimed to have seen the deceased Smt. Geeta being taken away by the accused appellant in his maruti car and one Ummed Singh were recorded by the IO under Section 161 Cr.P.C in the following order:-
Sr.No. Name of witness Date of recording of Statement
1. Nenaram 09.10.2010
2. Megharam Choudhary 09.10.2010
3. Moolaram 12.10.2010
4. Ummed Singh 19.10.2010 It is alleged that the dead body of an unidentified female was recovered near village Por, PS Varnama District Baroda on 09.10.2010 and the same was subjected to post-mortem and the visceras were forwarded to the FSL Baroda. Shri Ratan Singh (PW.30) being the SHO PS Desuri claims to have received information regarding the unclaimed female dead body whereupon he went to Baroda with the complainant Ramaram who identified it to be of Smt. Geeta. The body was thereafter formally procured for investigation of FIR No.10/2010 PS Desuri and was subjected to a fresh postmortem. The visceras collected from the dead body were (Downloaded on 01/07/2019 at 10:10:03 PM) (5 of 15) [CRLA-499/2015] forwarded to the FSL, Jodhpur for examination. The accused-appellant was arrested on 10.10.2010. On the basis of information provided by him to the investigating officer under Section 27 of Indian Evidence Act (Ex.P/59), the maruti car in which Smt. Geeta was allegedly taken away was recovered. The accused-appellant is alleged to have pointed out the place of incident to the investigating officer and also got recovered the clothes and ornaments which were taken off from the dead body of Smt. Geeta after murdering her. The call-details of the mobile phones held by the accused-
appellant and Smt. Geeta were procured and a charge-sheet came to be filed against the accused-appellant for the offences under Sections 366, 302 and 201 of IPC. The offence under Section 302 IPC was sessions triable and hence, the case was committed to the Court of Addl. Sessions Judge, Bali for trial where charges were framed against the accused appellant for the offences mentioned above. The accused pleaded not guilty and claimed trial.
The prosecution examined as many as 32 witnesses and exhibited 73 documents in order to prove its case. The accused was questioned under Section 313 CrPC and was confronted with the circumstances appearing against him in the prosecution evidence which he denied and claimed to have been falsely implicated. However, no oral evidence was led in defence. After hearing and appreciating the arguments (Downloaded on 01/07/2019 at 10:10:03 PM) (6 of 15) [CRLA-499/2015] advanced at bar and after evaluating the evidence available on record, the learned trial judge, discarded the evidence of recoveries made at the instance of the accused-appellant but proceeded to place reliance upon the evidence led by the prosecution, in support of the circumstance of last seen and merely on the basis thereof, the burden of proof was shifted on to the accused-appellant and he was convicted and sentenced as above by the impugned judgment dated 18.05.2015, which is assailed in this appeal.
Sarva Shri Dhirendra Singh and Rajiv Bishnoi, Advocates representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The conduct of the witnesses of last seen namely Megharam (PW.2), Moolaram (PW.13), Nenaram (PW.14) and Ummed Singh (PW.23) is absolutely unnatural. These witnesses claim to have seen the accused taking away the deceased on 04.10.2010. The village from where the accused allegedly abducted Smt. Geeta is very thickly populated. Immediately, after the disappearance of Smt. Geeta, her father started looking out for her and the MPR was lodged on 05.10.2010. The witnesses Megharam (PW.2), Moolaram (PW.13) and Nenaram (PW.14) admittedly accompanied Ramaram, the first informant when he went to lodge MPR yet, not even a whisper was made in the MPR that the these three witnesses had seen the accused taking away the deceased Smt. Geeta with (Downloaded on 01/07/2019 at 10:10:03 PM) (7 of 15) [CRLA-499/2015] himself in the car. It was further contended that so far as the evidence of Ummed Singh (PW.23) is concerned, he is a totally cooked up witness because even in the belated FIR, lodged on 09.10.2010, he is not named as a witness who had lastly seen the deceased being taken away by the accused appellant. They further urged that the trial court was absolutely unjustified in placing reliance upon the call detail records as an incriminating piece of evidence because the same were not proved as per law. The Investigating Officer Ratan Singh (PW.30) made no effort whatsoever to ascertain the ownership of the mobile number attributed to the accused. They further urged that even if it is believed for a moment that the call details were duly proved, the last call which was made by the accused on the mobile phone of the deceased was on 03.10.2010 whereafter the accused appellant never made any attempt to contact Smt. Geeta. They contended that in absence of the corresponding tower details which could indicate that the accused travelled from the Village Neepal to the Village Por, District Vadodara, Gujarat, no inference can be drawn to the effect that the accused took the deceased with himself in the car and then murdered her. They further contended that the IO Ratan Singh (PW.30) did not prove the relevant documents on the basis whereof the dead body of Smt. Geeta was procured from the concerned PS at Gujarat and was taken into possession during investigation of the present case. They urged that this aspect of the prosecution (Downloaded on 01/07/2019 at 10:10:03 PM) (8 of 15) [CRLA-499/2015] case is shrouded in doubt. They also urged that the visceras collected from the dead body of Smt. Geeta after post-mortem conducted at Gujarat were forwarded to FSL Baroda but the report of analysis was not collected during investigation of the present case and thus, the subsequent FSL report cannot be read in evidence. In arguendo, they urged that the visceras collected after second post-mortem of the dead body were forwarded to the FSL at Jodhpur and the same tested positive for the presence of Organo Phosphorous Insecticide. They urged that Organo Phosphorous Insecticide is a very obnoxious foul smelling chemical and it cannot be forced down the throat of a healthy person without any resistance being offered. He urged that no external injuries were seen on the face/mouth or hands of the deceased Smt. Geeta which could indicate that poison had been forcibly administered to her. On these grounds, they implored the Court to accept the appeal and acquit the appellant of the charges.
Per contra, learned Public Prosecutor supported the impugned judgment to the hilt and urged that the prosecution has proved the entire sequence of events and circumstances including that of the motive and last seen which invariably point towards the guilt of the accused. He urged that the failure of the accused to offer any explanation to the direct evidence of abduction and the strong chain of incriminating circumstances establishes his guilt for the murder of Smt. (Downloaded on 01/07/2019 at 10:10:03 PM) (9 of 15) [CRLA-499/2015] Geeta beyond all manner of doubt. He thus, implored the Court to dismiss the appeal and affirm the impugned judgment.
We have appreciated the arguments advanced at bar and have sifted and evaluated the evidence available on record. On perusal of the impugned judgment and the evidence led by the prosecution, it is clear that two circumstances on the strength whereof, the trial court proceeded to convict the accused are (1) that of the deceased Smt. Geeta being last seen in the company of the accused appellant and (2) that of the call details of the accused and the deceased. The trial judge rejected the evidence of recovery of the ornaments and the clothes etc. of Smt. Geeta allegedly made in furtherance of the information provided by the accused under Section 27 of the Indian Evidence Act after discussing the evidence at page 41 of its judgment in the following manner:-
"... lwpuk izn"kZih&62 ds vk/kkj ij xhrk ds xguksa dh cjkenxh izn"kZih&20 vkSj izn"kZih&21 uD"kk cjkenxh cuk;s tkus dks iznf"kZr djk;k gS vkSj ftlds ckcr~ vuqla/kku vf/kdkjh us fnukad 14-10-10 dks [khekjke dh lwpuk ij mDr lkeku dh cjkenxh djuk dgk gS] ftlds nksuksa xokg ih-M-21 Qk:[k vkSj ih-M-22 vCnqy vtht i{knzksgh gks x;s gS vkSj ;g Hkh lgh gS fd diM+ks vkSj xguksa dh dksbZ f"kuk[rxh vejkjke vkSj jkekjke ls ugha djk;h x;h gS vkSj uk gh U;k;ky; esa izLrqr fd;s x;s gSa] ijUrq tgka izn"kZih&3 ds :i esa xhrk dh f"kuk[rxh izekf.kr gS] dh ifjfLFkfr esa diM+s vkSj xgus u igpkus tkus ls xhrk dh f"kuk[rxh dks vLohd`r ugha fd;k tk ldrk gS ....."
As the circumstance of recovery of the clothes and the ornaments has been discarded by the trial court with a conclusive and well founded reasoning, the only evidence (Downloaded on 01/07/2019 at 10:10:03 PM) (10 of 15) [CRLA-499/2015] which the prosecution can bank upon for affirmation of the guilt of the accused would be that of the four witnesses Megharam (PW.2), Moolaram (PW.13), Nenaram (PW.14) and Ummed Singh (PW.23) who claim to have lastly seen the deceased Smt. Geeta in the company of the accused appellant in addition to the call detail records.
In this regard, firstly the evidence of Megharam (PW.2), Moolaram (PW.13), Nenaram (PW.14) and Ummed Singh (PW.23) needs to be discussed. On a close scrutiny of the examination-in-chief of Megharam (PW.2), Moolaram (PW.13) and Nenaram (PW.14), it is clear as day light that these witnesses only alleged that they saw Smt. Geeta standing alone and the accused-appellant Kheema Ram sitting in his car at some distance. Thus, from the evidence of these witnesses, no inference can be drawn that Smt. Geeta was actually seen in the company of the accused on the fateful day after which, she went missing from the Village Neepal. PW.23 Ummed Singh, on the other hand, claimed that he was proceeding towards his home and saw the accused-appellant Kheema Ram sitting in his car. When he reached about 325 feet ahead, he saw Smt. Geeta walking behind. He heard some noise on which he looked back and saw that Smt. Geeta was nowhere to be seen. He claimed that Smt. Geeta was pushed inside the car by accused-appellant Kheema Ram who had taken her away. However, the witness admitted in his (Downloaded on 01/07/2019 at 10:10:03 PM) (11 of 15) [CRLA-499/2015] cross-examination that he was examined by the police after 7 to 8 days of the incident. The witness further admitted that he met and talked to Ramaram after the incident. Many people had collected at the house of Ramaram but he did not disclose these significant happenings which he claims to have seen either to first informant, Ramaram or to the police immediately. The IO Ratan Singh (PW.30) upon being cross examined state as below:-
"eqLr- jkekjke bl izdj.k esa lcls igys esjs ikl fnukad 5-10-10 dks xqe"kqnxh ntZ djkus vk;k Fkk] lqcg vk;k Fkk] le; vkt ;kn ugha gSA mlds lkFk xkao okys Hkh vk;s FksA es?kkjke Hkh lkFk esa FkkA vejkjke] mEesnflag lHkh lkFk esa vk;s FksA fnukad 05-10-10 dks eSa ekSdk ns[kus x;k FkkA ;g lgh gS fd ekSds ij x;k rc fnukad 5-10-10 dks xkao okyksa us crk;k Fkk fd ,oa jkekjke us o mEesn flag us crk;k fd xhrk [khekjke ds lkFk xkM+h esa x;h gSA ;g lgh gS fd fnukad 5-10-10 dks "kd Fkk tks jkekjke] mEesnflag o es?kkjke dks "kd Fkk fd xhrk eqy- [khekjke ds lkFk x;h gSA ;g lgh gS fd 05-10-10 dks es?kkjke o mEesnflag ,oa ewykjke o usukjke us eq>s xhrk dk [khekjke ds tkus dk ns[kk tkuk ugha crk;k FkkA ;g lgh gS fd bl izdj.k esa jkekjke }kjk fnukad 9-10-10 dks ,d fyf[kr fjiksVZ tks 8-10-10 dh fy[kh gqbZ Fkh is"k dj eqdnek ntZ djk;k FkkA..."
In addition to the fact that Ummed Singh's name is not mentioned in the FIR as a witness of last seen, it is clearly perceptible that all the four witnesses named supra accompanied Ramaram to the Police Station on 05.10.2010. The SHO PS Desuri himself went to the village thereafter but none of these witnesses disclosed to him that anyone had seen Geeta being taken away by the accused. Thus, the (Downloaded on 01/07/2019 at 10:10:03 PM) (12 of 15) [CRLA-499/2015] allegation of last seen which the prosecution portrays as an incriminating circumstance against the accused is totally cooked up and unbelievable.
So far as the call detail records are concerned, we have carefully scrutinized the same. The trial court appears to have proceeded sheerly on conjectures and surmises while treating the same to be incriminating in nature. If at all the IO was desirous to substantiate the entire trail of events by the call detail records, then he should have collected the tower locations of the mobile phone in use of the accused by which it could have been established that the accused travelled from village Neepal to village Por where the dead body of Smt. Geeta was found lying in an abandoned condition.
It may be stated here that none of the prosecution witnesses disclosed the number of the mobile phone which was being used by Smt. Geeta. The Investigating Officer Shri Ratan Singh (PW.30) proved the call-detail records as Ex.P/65. However, neither the mobile phone of the accused nor the mobile phone of the deceased were recovered during investigation. In absence of any evidence to prove that the particular mobile phones of which the Investigating Officer Shri Ratan Singh (PW.30) procured the call-details were in the use of either the deceased or the accused-appellant, manifestly, the call-details would become redundant.
Furthermore, as stated above, the Investigating Officer
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neither collected nor elaborated the tower locations of both the mobile phones and thus, it is our firm opinion that the trial court committed a fundamental error whilst utilising the call-detail records as an incriminating piece of evidence against the accused-appellant. In this background, the evidence of the call-details is liable to be discarded.
It may be stated here that the dead body of Smt. Geeta was subjected to post-mortem twice. The first post-mortem was conducted by two doctors PW.5 Dr. Sunil Kumar and PW.11 Dr. Vidhyut K. Parmar at District Vadodara, Gujarat. Both these doctors did not state in their evidence that any significant marks of external injuries were noticed on the dead body. PW.11 Dr. Vidhyut K. Parmar opined that the cause of death of Smt. Geeta was respiratory failure caused by asphyxia. However, the asphyxia was not by compression of neck. The visceras collected from the dead body were forwarded by these doctors to the FSL but the FSL report of Gujarat was not proved during trial. The second post-mortem of the dead body was carried out at Desuri. The two medical officers PW.29 Dr. Rajesh Rathore and PW.31 Dr. Hanuman Singh Udawat proved the second post-mortem report Ex.P/56. These doctors also collected the visceras and forwarded the same to the FSL for examination. The FSL report was proved as Ex.P/9 and as per the result of the analysis, the visceras tested positive for presence of Organo (Downloaded on 01/07/2019 at 10:10:03 PM) (14 of 15) [CRLA-499/2015] Phosphorous Insecticides. Firstly, we are of the opinion that as the FSL report of Gujarat was not proved by the prosecution, the second FSL report procured during investigating at Rajasthan would come under a shadow of suspicion. Nevertheless, even assuming that the visceras tested positive for Organo Phosphorous compound, we are of the firm opinion that owing to lack of substantive evidence, no inference can be drawn that the accused-appellant administered the poison to the deceased. Organo Phosphorous compound is a very obnoxious foul smelling chemical and there are precedents laying down that such a compound cannot be administered to a healthy person without use of force which would necessarily be associated with injuries on the hands and face etc of the victim. No such injuries were noticed by the doctors who conducted the first post-mortem on the dead body of Smt. Geeta at Gujarat. In view of the above discussion, we are of the firm opinion that the finding recorded by the trial court in the impugned judgment that the accused-appellant administered poisonous substance to the deceased and thereby murdered her is lacking in pith and substance.
In wake of the discussion made hereinabove, we hereby accept the appeal, set aside the impugned judgment dated 8.05.2015 passed by learned Addl. Sessions Judge, Bali District Pali in Sessions Case No.2/2011 and acquit the accused of the charges. The accused appellant is in custody. (Downloaded on 01/07/2019 at 10:10:03 PM)
(15 of 15) [CRLA-499/2015] He shall be set at liberty forthwith if not wanted in any other case.
However, keeping in view the provisions of Section 437A 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.
The record be returned to the trial court forthwith.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
Sudhir Asopa
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