Rajasthan High Court - Jaipur
Bhanwar Lal vs State Of Rajasthan on 16 October, 2001
Equivalent citations: 2001(3)WLC781, 2000WLC(RAJ)UC83
JUDGMENT S.K. Sharma, J.
1. The appellant was found guilty by the learned Sessions Judge Tonk vide judgment dated January 23. 1995 in Sessions Case No. 106/93. He was convicted and sentenced under Sections 457, 382 and 302 IPC as under:-
U/s. 457 IPC to under to 3 Years RI and fine of rs..200/- in default to further undergo one months RI.
U/s. 382 IPC to undergo 2 years Rl and fine of Rs..200/- in default to further undergo one month RL U/Sec. 302 IPC to undergo imprisonment for life and fine of Rs. 200in default to further undergo one month RI.
All the sentence were directed to run concurrently.
2. The incident, as pictured by the prosecution, happened like this. Virendra Singh (PW.1) former Sarpanch of village Bench submitted a written report ex.P.1 with the Police Station Baroni (Took) on September 11, 1993 in regard to brutal murder of a village lady Sushila who on the previous night slept alone in her house as her husband had gone to well to irrigate the field and her father-in-law slept in the corridor outside the house. In the morning when she did not respond, her father-in-law, entered the house and found her lying dead in a pool of blood. The assailant in order to remove silver anklets and nose ring, slashed her ankle joints and face. The Police Station Baroni, registered a case under Section 302, 460 and 382 JPC. and investigation commenced. Inquest report Ex. P.3, Site Plan Ex. P. 11 and other necessary memos in regard to recoveries of various articles were drawn. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Dead body of Sushila was subjected to autopsy. The appellant was arrested on September 15, 1993, On the basis of information supplied by him under Section 27 of the Evidence Act SHO Mal Singh PW. 16 recovered silver anklets, one gold nose ring and four gold earrings from the house of the appellant. Knife allegedly used in the incident was also recovered at the instance of the appellant. Blood stained clothes were also recovered and seized. On conclusion of investigation charge sheet was filed. In due course the case came for trial before the learned Sessions Judge. Charge under Section 457, 382 and 302 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution examined as many as 18 witnesses in support of its case. In his statement under Section 313 Cr.P.C. the appellant pleaded innocence. However no evidence in defence was examined by him. The learned trial court on hearing the final submissions convicted and sentenced the appellant as indicated hereinabove.
3. Broadly speaking, circumstantial evidence against the appellant in the instance case is two fold. In the first category comes the testimony of Jagdish (PW.4) who has seen the appellant on the night of the incident wandering near the house of the deceased and the evidence of second category comprises the disclosure statements Ex. P. 4, Ex. P. 5 and Ex. P. 23 of the appellant, on the basis of which recoveries of ornaments of the deceased, knife and blood stained clothes of the appellate were effected vide recovery memos ex. P. 6, Ex. P. 7 and Ex. P. 5. One more connecting evidence is the report of FSL Ex. P. 25.
4. Jagdish (PW.4) in his deposition stated that around 1 a.m. in the night when he went out of his house to urinate, he saw a person putting on chaddar over him and was going upwards the hill. On being asked about his identity he replied that he was Bhanwar Lal and came over there to attend the call of nature. At that time Bhanwar Lal was about 200 years away from the house of Ram Ratan (the husband of the deceased). It is borne out from the statement of Jagdish that he and Bhanwar Lal were the neighbours from their childhood and he identified Bhanwar Lal from his voice and face.
5. The appellant was arrested on September 15, 1993 vide arrest memo Ex.P. 14. At the time of arrest, marks of old incised wounds were found on his left thumb and three fingers of right hand. On the said date at 1.20 p.m. the appellant made a disclosure statement to Mal Singh SHO (PW.16) on the basis of which silver ankles weighing 1 kg. 340 gms., Gold nose-ring weighing 12 gms. 200 milligrams and found gold earrings weighing 22 gms. 250 milligrams were recovered from the house of the appellant. Recovery memo Ex.P.6 was drawn and Jagdish (PW.4) and Ram Chandra (PW.7) put their signatures as Motbirs. Jagdish (PW.4) deposed that Bhanwar Lal was taken to his house in police vehicle. He got down from the vehicle, opened the lock of his house with the key possessed by him. The ornaments that were concealed in the 'chulha' (fire place used for cooking the fold) wrapped in a sock, got recovered by the appellant in his presence. Ram Chandra (PW.7) and Mal Singh (PW.16) also testified the recovery of the ornaments .at the instance of the appellant. Nenu Ram (PW. 17) stated that he carried the sealed packed of ornaments from Mal Khana and placed it before the Tehsildar Niwai for identification. Alok Chand Chanturvedi (PW. 18) who was Tehsildar, stated that he conducted the identification proceedings on October 1, 1993 and the ornaments were identified by Ram Ratan (PW.15). Memo of identification proceedings (Ex. P.22) was drawn. Ram Ratan (PW.15) in his deposition stated that his wife Sushila before the incident was wearing Nose-ring, earrings, silver anklets and other ornaments but after the incident no ornament was found on her dead body, he had identified nose ring, earrings and silver anklets before the Tehsildar and put his signatures.
6. On the basis of another disclosure statement (Ex. P. 4) of the appellant, Mal Singh SHO (PW.16) recovered knife from his house vide recovery memo Ex. P. 7. Recovery of blood stained chaku (knife) Article-11 was effected in front of Motbirs Jagdish (PW.4) and Ram Chandra (PW.7).
7. The appellant made yet another disclosure statement (Ex. P.6) on the basis of which his blood stained clothes comprising of Baniyan, Tehmad and Chaddar (bed sheet) was recovered vide recovery memo Ex. P.8 in the presence of Motbirs Jagdish and Ramchhandra.
8. As per the post mortem report Ex. P. 19, Sushila sustained following injuries-
(i) Incised would 3 1/2 cm.x1/2 cm. x 1/2 cm. on right side of face.
(ii) Incised wound 2 cm.x1/4 cm. x 1/4 cm. on right side of face.
(iii) Incised wound 1 1/2 cm.xl/4 cm. x 1/4 cm. on right side of face.
(iv) Incised wound 2 cm.x5 cm. x cavity deep on right side of neck.
(v) Incised wound 3 cm.x2 cm. x 1/2 cm. on right side of face.
(vi) Incised wound 1 cm.xl/2 cm. x 1/2 cm. on upper border of right pinna.
(vii) Incised wound 2 cm.xl cm. 1/2 cm, on right temporal region.
(viii) Incised would 1 cm. x 1/4 cm. x 1/4 cm. on right side neck.
(ix) Incised wound 1 cm.xl/4 cm. x 1/4 cm. on right side neck.
(x) Incised wound 1 cm.xl/4 cm. x 1/4 cm. on right side neck.
(xi) Incised wound 12 cm.x3 cm. x 3 cm. on left side of neck.
(xii) Incised wound 1 cm.x1/4 cm. x 1/4 cm. on submandibular region left side of face.
(xiii) Incised wound 1 cm.x 1/4 cm. x 1/4 cm on submandibular region left side of face.
(xiv) Incised wound 1 cm.xl/4 cm. x 1/4 cm. on submandibular region left side of face.
(xv) Incised wound 1 cm.xl/4 cm. x 1/4 cm. in front of traqus on left side face.
(xvi) Incised wound 1 cm. x 1/4 cm x 1/4 cm. in front of traqus on left side of face.
Right cerotid oty, Right carotid view and muscle in right side or neck cut. Trachea above cricoil cartilage cutt.
(xvii) Incised wound 4 cm. x 1 cm x bone deep extensor surface of left middle Finger.
(xviii) incised wound 2 cm. x 1/2 cm. x 1/2 cm. extensor surface of left middle finger.
(xix) Incised would 1 cm.xl cm. x 1/2 cm. little finger right hand palmer surface (xx) Incised wound 1/2cm.x/12 cm.x 1/2cm. middle finger right hand palmer surface.
(xxi) Incised wound 1/2 cm.x 1/2 cm, x1/2 cm. on ring finger right hand palmer surface.
(xxii) Left foot-Amputation at ankle joint by sharp object) all the bones are intact.
(xxiii) Right foot-Circumscribal incised wound 5 cm. above ankle joint (Rt.) x 2 cm. broad x bone deep.
Amputation at right ankle joint (by sharp object) all bones are intact.
Left and right ankle joints disclosed both foot separated from both legs.
The cause of death was shock by severe hammorrhage from cult down of right carotid artery.
Dr. Ravi Mishra (PW. 12) who was a member of Medial Board and one of the signatory of the post mortem report, stated in his cross examination that although in the postmortem report it was not mentioned but that amputation of both foot was made after the lady had died. She sustained injuries No. 18, 19, 20 and 21 on account of her struggle with the assailant.
9. Blood stained clothes of deceased Sushila comprising of Luqra, Kabja and Ghaghra were recovered vide recovery memo Ex.P.10.
10. Recovered articles were sent in sealed packets to the FSL for examination. In the FSL report ex. P.25, result of examination of the articles discloses that the clothes of the deceased Sushila (Luqra, Kabja and Ghaghra) were stained with 'A' group human blood and the blood found on Chaku (knife), Baniyan, Tehmad and Chad-dar/Loi Type) recovered at the instance of the appellant were also stained with 'A' group human blood.
11. Mr. R.S. Chauhan, learned Amicus Curiae pointed out that the evidence adduced by the prosecution was not sufficient to find the guilt for the offences the appellant has been charged with. It was contended that various incriminating circumstances relied on by the trial court are not sufficient to draw an inference of guilt of the appellant and the chain of circumstances was not cogently and firmly established and these circumstances have no definite tendency to unerringly point the guilty of the appellant. The counsel for the appellant made an attempt by placing before us colourful graphics of human body from the various Medical Books to establish that in view of the injuries sustained by the deceased on trachea, showers of blood ought to have touched the roof and the walls of the rooms but only a few drops of blood were seen on the clothes and 'Gudri' of the deceased and no blood was found in trachea, this shows that most of the injuries sustained by the deceased were post mortem in nature but post mortem report does not say so. It was also canvassed that amputation of ankle joints was not possible by the knife allegedly recovered at the instance of the accused. The counsel for the appellant also raised serious doubts regarding the disclosure statements and recoveries effected at the instance of the appellant. Our attention was also drawn towards the site plan of the occurrence (Ex. P.1) and it was urged that as on blood was found at the spot, the prosecution story become doubtful. Another contention canvassed by the appellant's counsel is that no reliance can be placed on the testimony of Jagdish (PW.4) who made all efforts to implicate the appellant with the crime. In the whole village why only Jagdish was associated with all the recoveries. His testimony where by the identified the appellant only by 'voice' can not be accepted as trustworthy.
12. We have closely scrutinised the statement of Jagdish (PW.4). Although he was subjected to lengthy cross examination but we find that his testimony could not be shaken. It is established that not only he but other villagers also used to go out of their houses to attend call of nature. It could not be established that the relations of Jagdish with the appellant were inimical. On the contrary the appellant in his statement Under Section 313 Cr.P.C. admitted that Jagdish belonged to his village. If Jagdish was associated with the recoveries, it is hardly of any consequence. We find the testimony of Jagdish truthful and trustworthy. Jagdish who was residing since his childhood in the neighbourhood of the appellant could very well identify him by his face as well as his voice. In the cross examination when suggestion was made to Jagdish that it was a dark night, he replied that there was light in the temple and also in the house of Mool Chand.
In Krishnan v. State of Kerala (1), the occurrence had taken place in an open filed on a cloudless starry night, their Lordships of the Supreme Court indicated in para 10 thus-
".....So far as the contention of insufficient light is concerned, we may indicate that in an open filed on a cloudless starry night there was no difficulty in identifying a known person from a close distance."
In Lakhan Sao v. State of Bihar (2), the Hon'ble Supreme Court observed that where there was some light a person could be identified if he was not a stranger.
In the instant case, as already stated the appellant was known to Jagdish (PW.4) from his very child hood and on being inquired as to who he was, he told jagdish that he was Bhanwar Lal and came over there to attend the call of nature. Although he put a Chaddar over his head yet he was identified by Jagdish as there was some light in the temple as well as in the house of Mool Chand. At that time the appellant was at a distance of about 200 yards from the house of deceased "Sushila. It is thus established that the appellant on the night of the incident was seen near the house of the deceased.
13. That takes us to the other circumstances. From the post mortem report it appears that right and left foot of Sushila were amputated from the ankle joints and she sustained incised wound on upper border of right pinna and as many as nine incised wounds on face. All these injuries appear to have been caused in order to remove silver anklets, earrings and nose ring from her body. These ornaments were recovered from the house of the appellant at his instance. It is established from the evidence that the house was in exclusive possession of the appellant and the lock of the house was got opened by the key possessed by him. The ornaments were identified as of his wife Sushila by Ram Ratan (PW. 15) the husband of the deceased in an identification proceedings conducted by the Tehsildar Alok Chand Chaturvedi (PW. 18). Their Lordships of the Supreme Court in Bhagwan (Shri) v. State of Rajasthan (3), indicated that - (Para 11).
"The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistence with his innocence."
In Earabhadrappa @ Krishnappa v. State of Karnataka (4), the deceased was throttled to death and accused was taken into custody and gold ornaments and other articles were recovered at his instance. The Hon'ble Supreme Court under these circumstances observed thus-
"This is a case where murder and robbery are proved to have been the integral parts of the one and the same transaction and therefore the presumption arising under Illustration (a) of Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which from part of the same transaction."
In the instant case, the appellant could not give any explanation as to how he came into possession of the gold and silver ornaments of the deceased. Thus presumption under Illustration (a) of Section 114 of Evidence Act could be drawn that it was the appellant who committed murder and robbery.
14. As also noticed earlier, blood stained Chaku (knife), Baniyan, Tehmad (Lungi) and Chaddar were recovered from the house of the accused at his instance. There is no explanation given by the appellant how there were blood stains on the clothes and knife. In the FSL report these articles were found stained with 'A' group human blood. The blood group of the blood stained clothes of the deceased Sushila was also found as 'A'. Thus it is established that the appellant at the time of commission of offence was wearing Baniyan, Tehmad and Chaddar and the injuries sustained by the deceased were caused by Chaku (knife) recovered at the instance of the appellant and the blood found on Chaku (knife), Baniyan, Tehmad (Lungi) and Chaddar was of deceased Sushila. The recovery of the blood stained clothes and knife was made soon after the arrest of the appellant and the appellant failed to give any explanation as to how blood stained knife was reached at his house, which was not accessible to the public. When the appellant lead to the recovery of blood stained clothes and knife then there is not reason to disbelieve the recovery.
15. There is yet another circumstance that has been established by the prosecution in the instant case. The appellant was according to which at the time of arrest marks of old incised wounds were found on his left thumb and three fingers of right hand. The appellant explanation to his arrest was mere denial. Thus this fact goes a long way in proving the guilt of the appellant.
16. We are unable to a pursuade ourselves to agree with the submissions advanced before us by Mr. R.S. Chauhan learned Amicus Curiae. The submission of Mr. Chauhan may be adequately met by stating that the Jagdish (PW. 4) stated i his cross examination has to be taken at the most 'exaggeration.' In Kaki Ramesh v. State of A.P. (5), their Lordships of the Supreme Court in para 7 indicated that "exaggerations, embellishments and inconsistencies on the fringe do not make witness unreliable." This argument of learned counsel is also devoid of merit that as blood in the site plan was not found by the investigating officer at the place of occurrence it creates doubt in the prosecution story. Merely because no blood was found at the place of incident it can not be said that no incident took place there. There is no dispute that the deceases sustained as many as 23 incised wounds on the various parts of the body and it was subjected to autopsy by the Medical Board. Dr. Ravi Mishra (PW.12) was examined by the prosecution but no question was asked from him as to why the blood did not touch the roof and walls of the room on account of the injuries sustained by the deceased on her trachea. We do not find any merit in the submission of the learned counsel that the injuries sustained by the deceased on her ankle joints could not be caused by the knife.
17. On scanning the entire material on record we find that the following circumstances against the appellant have been clearly established-
(i) The appellant was seen near about the place of occurrence.
(ii) The deceased sustained 23 incised wounds. The ankle joints of her feet were amputated. There was incised wound on the upper border of right pinna. As many as nine incised wounds were found on her face and her nose ring, earrings and silver anklets were found missing.
(iii) The appellant while in custody gave information leading to the discovery of nose ring, earrings and silver anklets, blood stained knife and clothes and pursuant to it recoveries were made.
(iv) The ornaments were identified by the husband of the deceased.
(v) Blood group of deceased Sushila was found on the knife and the clothes of the appellant.
(vi) Marks of old incised wounds on the left thumb and there fingers of the right hand of the appellant were seen at the time of arrest.
We find that the chain of circumstantial evidence against the appellant in the instant case is complete and incapable of explanation on any other hypothesis that of the guilt of the appellant. The learned trial judge has rightly convicted and sentenced the appellant.
18. We see no merit in the appeal, the same is accordingly dismissed.