Rajasthan High Court - Jaipur
Nizam And Anr. vs State Of Rajasthan on 1 July, 2005
Equivalent citations: RLW2006(1)RAJ69, 2005(4)WLC587
Author: Jitendra Ray Goyal
Bench: Jitendra Ray Goyal
JUDGMENT
Shiv Kumar Sharma J.
1. Two accused appellants namely Nizam a Shafique have been held guilty of the offence punishable under Sections 302 & 201 IPC by the Additional Sessions Judge (Fast Track) No. 2, Dholpur in Sessions Case No. 213/2001 and each of the accused appellants has been sentenced as under:--
Under Section 302 IPC :--Life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, six months imprisonment. Under Section 201 IPC :--Two years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, one month imprisonment. The sentences were ordered to run concurrently.
2. A written report (Ex.P1) was submitted by informant Shahjad (PW4) at Police Station Maniya, District Dholpur on 26.1.2001 at 4 pm with the averments that one Koke Singh (PW13) came to him with the oral information that at about 3 PM he (PW13) went to his (informant) agricultural field to have the fodder (Karab) he saw one dead body lying under the fodder (Karab) whose neck and penis were tied with a string (rassi) with blood oozing out from his nostrils.
3. On the basis of this information, FIR No. 16/01 was registered for the offences under Sections 302 and 201 1PC and the investigation commenced. Police rushed to the place where the dead body was lying. In the course of seizure of the dead body one builty (Ex.P17) and one receipt (Ex.P18) were recovered from the pocket of trouser of the deceased vide seizure memo Ex.P5. The site-plan with its description (Ex.P6) was prepared. Photographs of the dead body were also taken on the record. Inquest report (Ex.P3) was prepared. Autopsy on the dead body was conducted by PW6, Dr. Bhagwan Agarwal on 27.1.2001 who prepared postmortem report Ex.P11. String (rassi) which was tied around the neck was also seized vide seizure memo Ex.P15. Accused Nizam and Shafiq were arrested vide arrest memos Ex.P12 & Ex.P13 respectively. On the informations of accused persons under Section 27 of the Indian Evidence Act, truck No. DL-1-GA-5943 was recovered vide recovery memo Ex.P14. Blood stained clothes of the deceased were also seized and after usual investigation, charge sheet was filed and in due course the case came up for trial before learned Additional Sessions Judge, (Fast Track) No. 2, Dholpur. Charges under Sections 302 & 201 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. After completion of the prosecution evidence, the statements of accused persons under Section 313 Cr.P.C. were recorded. The appellants claimed to be innocent and stated that the deceased Manoj did not travel with them in the truck. However, no witness in defence was produced. After hearing final submissions, learned Additional Sessions Judge vide judgment dated 9.9.2002 convicted and sentenced the appellants as mentioned hereinabove.
4. We have heard the learned Counsel for the appellants and learned Public Prosecutor and have gone through the impugned judgment and entire material evidence on record.
5. Undisputedly, there is no eye witness of the said occurrence and the case of prosecution solely rests on the circumstantial evidence.
6. Before analyzing the factual aspects, it may be stated that it is not necessary that crime must be proved by direct ocular evidence but the offence can be proved by circumstantial evidence also. Factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, in other words circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
7. It has been consistently laid down by the Hon'ble Apex Court that in order to base conviction on circumstantial evidence each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the proved pieces of circumstantial evidence taken together form a complete chain wherefrom to inference other than of guilt against the accused persons can be drawn or in other words proved pieces of circumstances should be of conclusive nature and tendency and they should be such as to exclude hypothesis but the one proposed to be proved.
8. The case at hand has to be gauged in the background of the aforesaid legal parameters.
9. According to the prosecution, following circumstances were proved which unerringly point the finger of guilt on the accused persons, namely;
(i) Deceased Manoj was the helper on the truck No. MP-07- 2627 and had gone to Puna and thereafter Barar along with its first driver Rajkumar (PW2) and second driver Ramprakash (PW1) and from Barar they loaded the truck with pipes for the destination to Gaziabad on 23.1.2001.
(ii) Accused appellants Nizam and Shafique who were the driver and cleaner respectively on the truck No. DL-1-GA-5943 also loaded their truck with pipes from the same company at Barar on the same day and started for Gaziabad with truck No. MP-07- 2627 and during this period drivers and cleaners of both the trucks developed acquaintance with each other.
(iii) Driver Rajkumar of truck No. MP-07-2627 got into quarrel with some local persons while on the way to Gaziabad. Consequently Barar Police detained him along with his truck. Feared with such situation Rajkumar instructed his second driver Ramprakash to hand over the amount of rupees about 20,000/- to Manoj with instructions to give this money to the truck owner.
(iv) As directed by PW1 Ramprakash and PW2 Rajkumar Shri Manoj left for Gwalior with accused persons by the truck No. DL-1-GA-5943 on 23.1.2001.
(v) As stated earlier the dead body of the deceased Manoj was found on 26.1.2001 under the suspicious circumstances in a field near village Maniya.
(vi) One builty Ex.P17 bearing the signatures of accused Nizam and Ex.P18 receipt of 'Naka Shivpuri', M.P. pertaining to truck No. DL-1-GA-5943 were recovered from the deceased.
(vii) Subsequent conduct of the accused appellants was unnatural and they gave false explanation in this regard.
10. So far as the cause of death of deceased is concerned, it is not disputed that death of deceased was not natural one but was homicidal. Dr. Bhagwan Agrawal (PW6) who conducted the autopsy on the dead body found two abrasions, swelling over left lower neck and two clear cut ligature marks around the neck. Neck was also found tied with a string (rassi), blood was oozing out from the mouth and nostrils and lips were found to be of bluish colour. Dr. Agarwal found that hyoidebone of neck was fractured and as per the opinion of doctor the cause of death was suffocation leading to asphyxia.
11. Learned counsel appearing for the accused appellants firstly submitted that the prosecution could not prove that the dead body was that of Manoj. In this sequence, it was contended that as per the prosecution case, deceased was identified on the basis of his clothes and photographs but neither the negatives of the photographs, nor his clothes were produced in the court. It was further contended that no close relative of the deceased was examined for identification.
12. We have given our anxious consideration to the above submissions.
13. So far the identification of the deceased is concerned, it is an admitted case that Ramprakash (PW1), Rajkumar (PW2) and Rajnish Kant (PW3) could not see the dead body as the same was cremated earlier. But they identified the deceased on the basis of his photographs and clothes. It is clear from the evidence of Ramprakash (PW1) and Rajkumar (PW2) that deceased Manoj was working with them as a cleaner on the truck No. MP-07-2627 which was owned by Rajnish Kant (PW3). All these three witnesses deposed in their statements that on the telephonic information from Police Station Maniya, they went to Police Station Maniya. Ramprakash (PW1) and Rajnish Kant (PW3) categorically stated that they identified the deceased as Manoj from his clothes and photographs. It is also evident from the testimony of Gullu Khan (PW16), Investigating Officer that on receiving report Ex.P1, he went at the spot and during the investigation, photographs of the dead body were taken there. Photographer Dinesh (PW5), while corroborating the statement of PW16 Gullu Khan, deposed that on 26.1.2001 he took the snaps of the dead body at the spot which were Ex.P7 to Ex.P10. In his cross-examination, he further stated that since last two years he is not providing negatives to the police. The testimony of above prosecution witnesses appears to be consistent and remained unshaken in cross-examination. It is also significant to note that even no such suggestion was given to the photographer that these photographs were tempered with or mored. Thus, in our considered opinion, where a dead body is clearly visible with face and other parts of the body which were recognizable from the photographs and the dead body was recognized by the persons with whom the deceased was working, it cannot be said that dead body was not rightly identified.
14. Learned counsel for the appellants next contended that there were major contradictions in the statements of prosecution witnesses on the material points which render the prosecution case to be doubtful. It was also contended that prosecution has completely failed to prove that deceased Manoj ever travelled with the accused appellants, thus, story of last seen of deceased Manoj with appellants is false and concocted by Ramprakash (PW1) and Rajkumar (PW2) just to save themselves from this heinous crime. It was also submitted that only circumstance of last seen is not sufficient to fasten the appellants with the guilt. Reference has been made to the judgment of the Apex Court rendered in the case of Subhash Chand v. State of Rajasthan, wherein it was held that last seen of deceased with the accused together must be nearabout the date and time of the accident. In the case of Bodhraj alias Bodh and Ors. v. State of Jammu and Kashmir, while reiterating the same view it was held that the theory of last seen comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Learned counsel further relied on the judgment in Inderjeet Singh and Anr. v. State of Punjab, and State of Punjab v. Sarup Singh, wherein under the facts and circumstances of those cases it was held that sole circumstance of last seen of deceased in the company of accused is not sufficient for convicting the accused.
15. Learned Public Prosecutor supported the impugned judgment and contended that it is not only a case of last seen of the deceased in the company of accused appellants at a particular point of time but in the instant case it has been proved that deceased having huge amount of money travelled in the company of accused persons in their truck for the destination of Gwalior and on the way he was murdered. It was further contended that it was the duty on the part of the accused appellants to explain the facts about which they were having special knowledge but they could not explain that what happened with the deceased when he was travelling with them in their truck and how he was murdered, rather, they offered false explanation which provides additional link and it is also a clear case of presumption against the accused appellants.
16. We have carefully considered the rival submissions in the light of the evidence and material available on record. To prove the fact that deceased Manoj travelled in the company of accused appellants in their truck for the destination to Gwalior, the prosecution has mainly relied on the evidence of Ramprakash (PW1), Rajkumar (PW2) and Rajnish Kant (PW3).
17. Ramprakash (PW1) deposed that he went to Barar in the truck No. MP-07-2627 along with first driver Rajkumar and cleaner Manoj; that from Barar they loaded pipes in their truck; that truck No. DL-1-GA-5943 was also loaded with the pipes at the same time and place, that accused Nizam was the driver and other accused Shafique was the helper in this truck; that pipes were booked for the destination Gaziabad and both the trucks proceeded together; that on the way a quarrel took place and on that account they went to Police Station Barar for lodging the report but Rajkumar (PW1) was detained along with his truck; that truck of Nizam was also standing along with their truck. He further stated that Rajkumar told him that money of Rs. 20,000/- be sent to the owner of the truck along with Manoj because atmosphere of that place was bad. On this, Manoj was entrusted with the money and Manoj proceeded with the accused Nizam and Shafique in their truck No. DL-1-GA-5943. Ramprakash (PW1) further stated that after release from Police Station, they also started from Barar on 25.1.2001 for Gwalior where on inquiry they were informed that Manoj did not reach at Gwalior. It was also stated by him that after having unloaded the pipes at Gaziabad, they came back to Gwalior and there the owner of the truck received telephone from Maniya Police Station that one unidentified dead body was recovered. Thereupon, they went to the Police Station and recognized the deceased on the basis of clothes-pant, shirt, shoes, ring, full sleeves swator and photographs. In the cross- examination, he stated that both the trucks were loaded for the same destination and they developed acquaintance with Nizam and Shafique at transport company Puna two days prior to the loading of the pipes from Barar. He further stated that in his presence Manoj left for Gwalior along with accused Nizam and Shafique in their truck in the night of 23.1.2001. Rajkumar (PW2) who is also a key witness fully corroborates the testimony of Ramprakash (PW1). He stated that he was the first driver on the truck No. MP-07-2627 on which Ramprakash was the second driver and Manoj was working as a cleaner with them; that they took the truck to Puna and after unloading the goods there they went to Barar from where they loaded pipes for the destination Gaziabad. He further stated that Nizam and Shafique who were the driver and cleaner respectively on the truck No. DL-1-GA-5943 also loaded pipes along with them. He also stated that on the way near a village quarrel took place; that they went to police station with Shafique and Nizam, both the trucks were side by side parked. He further deposed that police detained him and his truck. On the apprehension that money may not be lost, he asked his second driver Ramprakash to send the said amount at Gwalior, thereupon this amount of Rs. 20,000/- was given to Manoj who proceeded by the truck of Nizam. Rajkumar further stated that on his release he also started for Gwalior on 25.1.2001 where on inquiry it was informed that Manoj did not reach at Gwalior. Thereafter, telephonic message was received from Police Station Maniya that one dead body was found. On this, he also went to Police Station Maniya. In the cross-examination, he stated that he was acquainted with Nizam and Shafique when they together loaded pipes in both the trucks. Rajnish Kant (PW3) also corroborated the testimony of Ramprakash (PW1) and Rajkumar (PW2). He stated that on his truck Rajkumar was the driver and Manoj was working as cleaner, that on 18.1.2001 they took the truck after loading the goods for the destination Puna. Thereafter, he received a telephonic message that his vehicle met with an accident, hence detained in the Thana and his driver Rajkumar was also detained, that when Rajkumar was being taken to court, he informed him on telephone that Manoj is coming along with fare amount of Rs. 20,000/-in the truck No. DL-1-GA-5943, but Manoj did not reach, when driver Rajkumar came back at Gwalior, he also went in the search of Manoj at his native place. Rajnish Kant (PW3) further stated that after some days he received a telephonic message from Police Station Maniya that one dead body was found which appears to be related with their truck. On this, he went along with his both the drivers at Police Station Maniya and on seeing the photographs and clothes of Manoj they identified the deceased as Manoj. Rajnish Kant further stated that in his presence Rajkumar asked to the driver of another truck who was also present at the Police Station Maniya that Manoj was sent with him due to faith but what he did with him.
18. It is also significant to note that on 26.1.2001 when dead body was found in a field, during the course of seizure of dead body, one builty Ex.P17 bearing the signatures of accused Nizam and one receipt Ex.P18 pertaining to the truck of accused persons No. DL-1-GA-5943 were recovered from the pocket of the deceased which also corroborate the fact that deceased Manoj travelled along with accused appellants in their truck No. DL-1-GA-5943 and he went at the Chunginaka, Shivpuri for depositing Rs. 35/- and obtained the receipt Ex.P18 after showing the builty Ex.P17 which remained in his pocket and thereafter, the deceased was murdered near village Maniya. Their testimony further found corroboration from the statement of Prahlad Kumar (PW10)-a commission agent in the M/s. New India Transport Company, Aligarh who deposed that on 15.1.2001 Nizam along with Irshad and Gopichand who were the owner of the truck No. DL-1-GA-5943 came to him and their truck was loaded through him from Bella Road to Puna. Rajendra Prasad (PW9) who was the Munim in the New Delhi Transport Company, Aligarh also stated that the truck No. DL-1-GA-5943 was loaded through agent Prahlad. He prepared builty and handed over to Gopichand-owner of the truck. He further stated that Nizam was the driver on the truck. Hawa Singh @ Hawai Singh (PW18), Shalendra (PW19) and Saraal Bada Sahib (PW20) though were declared hostile but from their testimony this fact has been further corroborated that two trucks No. MP-07-2627 and DL-1-GA- 5943 were loaded from Barar through A.R.C. Ltd. Transport Co. on 23.1.2001. Prosecution has produced the witness Sudam Vitthi Darekar (PW17) who was working as API, in Police station Barar on 23.1.2001, who stated that driver of truck No. MP-07-2627 came at the police station and reported that 5-7 persons looted them. This report was found false, thus case was registered under Section 182 IPC against the driver Tomar and he was produced in the court on 24.1.201 where he was fined Rs. 1,000/- by the Magistrate. Thus, this fact also finds corroboration that truck No. MP-07-2627 could not proceed further on 23.1.2001 from Barar since driver Rajkumar and his truck were detained by the police Barar. Thus, the prosecution has succeeded in proving the fact that the deceased Manoj with the money of about Rs. 20,000/- proceeded from Barar with the accused appellants in their truck with whom he had already developed acquaintance and confidence at Puna and Barar. It has further been proved that one builty Ex.P 17 bearing the signatures of accused Nizam and one receipt Ex.P18 pertaining to the truck No. DL-1-GA-5943 of accused persons were recovered from the pocket of the deceased which also goes to show that the deceased travelled with the accused persons in their truck and he deposited Rs. 35/-vide receipt Ex.P18 at 'Chunginaka Shivpuri' after showing the builty Ex.P17. It is also significant to note that accused persons could not give any explanation as to what happened to Manoj during the course of traveling with them and what were the circumstances due to which the victim suffered death about which they must be having special knowledge. Since it was found proved that deceased was travelling throughout with them, the denial made by both the accused that the deceased did not travel with them cannot be accepted at all.
19. Hon'ble the Supreme Court in the case of State of W.B. v. Mir Mohhamad Omar and Ors., held that "the pristine rule that the burden of proof is on the prosecution to prove the guilty of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty." It was further held that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. In the case of Ram Gulam Chaudhary and Ors. v. State of Bihar, wherein the victim was kidnapped by the accused it was held that Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. Hon'ble the Supreme Court in the case of Usman Mian and Ors. v. State of Bihar, observed that where incriminating circumstances proves the prosecution case, falsity of defence plea provides an additional link to the chain of incriminating circumstances. In the case of Ambika Prasad v. State (Delhi Adrnn.), , Hon'ble Supreme Court propounded that the criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained. It was held that Judge does not preside over the criminal trial merely to see that no innocent man is punished. It was held that a Judge presides over criminal trial also to see that a guilty man does not escape.
20. In the instant case, as discussed above, prosecution has succeeded in proving the following circumstances that;
(i) the deceased Manoj proceeded from Barar along with accused appellants in their truck No. DL-1-GA-5943 on 23.1.2001 in the night for Gwalior;
(ii) the deceased Manoj was having about Rs. 20,000/- and this fact was well within the knowledge of accused appellants;
(iii) the deceased travelled all the way and this fact is further proved from the builty bearing the signatures of accused Nizam and receipt of 'Naka Shivpuri' which were found from the pocket of the deceased.
(iv) Rs. 20,000/- were missing from the pocket of the deceased.
(v) the accused appellants did not offer any explanation about the fact that what happened with the victim Manoj since he was travelling with them and they were having special knowledge about the incident what happened with the deceased;
(vi) the accused appellants offered false explanation that deceased Manoj did not travel with them in their truck.
21. Thus, in our considered opinion, the prosecution has succeeded to complete the chain of circumstances and showed the close proximity between the events of accused persons last seen together with the deceased and the factum of death of deceased under the suspicious circumstances leads to unresistable conclusion that none other than the accused persons murdered Manoj and after having kept the dead body under the fodder (Karab) in a field near village Maniya, they went away from the spot.
22. Above being the position, we do not find any infirmity in the conclusions arrived at by the Trial Court, the appeal fails and is dismissed accordingly.