Rajasthan High Court - Jaipur
Trilok Ram vs State Of Rajasthan on 24 April, 2001
Equivalent citations: 2002(3)WLN154
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 11.12.1999 passed by the learned Sessions Judge, Merta in Sessions Case No. 3/99, by which he convicted the accused appellant for the offence Under Section 304 Part-II I.P.C. and sentenced him to undergo seven years rigorous imprisonment and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo S.I. for one month.
2. The facts giving rise to this appeal, in short are as follows:
On 27.12.1998 at about 9.35 AM, PW-3 Jor Singh lodged a report Ex.P/13 before PW-13 Chandra Singh, S.H.O., Police Station, Gotan District Nagaur stating inter-alia that Jitender Singh (hereinafter referred to as the deceased) was his nephew and the accused appellant has murdered him on the night of 26.12.1998 on account of some reasons, it was further stated in the report that on 26.12.1998 in the night, the deceased went to his field to see the crops of Jeera. It was further stated in the report that on that night at about 10.30 PM, he was coming towards his Dhani on a motor-cycle form Jagdamba Transport and at that time, he saw accused appellant and one more person going towards Gotan Village. Thereafter, early in the morning i.e. on 27.12.1998, he heard that deceased was murdered by accused appellant and, therefore, he lodged this report. It was further stated in the report that since deceased had no father and elder brother, that is why he lodged this report.
On this report, police registered the case and chalked out F.I.R. Ex. P/17 and started investigation.
During investigation, post mortem of the body of the deceased was got conducted by PW-14 Dr. Jassaram on 27.12.1998 and the post mortem report is Ex.P/23. On 27.12.1998, PW-13 Chandra Singh, S.H.O., Police Station, Gotan arrested the accused appellant through Ex.P/11 and when accused appellant was arrested, Chola, which he was wearing at that time was stained with blood and it was also seized through Ex.P/12 by PW-13 Chandra Singh in presence of two Motbirs, namely, PW-2 Ramchandra and PW-10 Murlidhar and that Chola was sealed and marked as Article-2. During investigation, accused appellant gave information on 27.12.1998 to PW-13 Chandra Singh to the effect that he could get recovered Kuwadia and that information was reduced into writing in Ex.P/19 by PW-13 Chandra Singh and in pursuance of that information, accused appellant got recovered one Kuwadia in presence of two motbirs, namely, PW-8 Ram Niwas and PW-5 Ayub Khan and the same was sealed and marked as Article-1 and the Fard of seizure of Kuwadia is Ex.P/14. Both the articles were sent to FSL through letter Ex.P/6 and the report of the FSL is Ex.P/22, which shows that Chola Article-2 and Kuwadia Article-1 were stained with human blood.
After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate for the offence Under Section 302 I.P.C. and from where the case was committed to the Court of Session.
On 16.2.1999, the learned Sessions Judge, Merta framed charge for the offence Under Section 302 I.P.C. against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial.
During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited many documents. Thereafter, statement of the accused appellant Under Section 313 Cr.P.C. was recorded. No evidence was produced in defence by the accused appellant. However, five documents were got exhibited by the accused appellant.
After conclusion of trial, the learned Sessions Judge, Merta through his judgment and order dated 11.12.1999 convicted the accused appellant for the offence Under Section 304 Part-II I.P.C. in place of 302 . I.P.C. and sentenced him in the manner as indicated above placing reliance on the following facts and circumstances:
1. That PW-7 Gajendra Singh was found to be an eye witness in the present case.
2. That at the instance of the accused appellant, Kuwadia Article-1 was got recovered and the same was found to be stained with human blood.
3. That Chola Article-2, which was on the person of the accused appellant at the time of his arrest, was also found to be stained with human blood.
4. That just before the alleged incident, accused appellant was seen in the company of the deceased by PW-4 Jabar Singh and PW-9 Man Singh. Thus, there is evidence of last seen also.
Aggrieved from the said judgment and order dated 11.12.1999 passed by the learned Sessions Judge, Merta, this appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been made by the learned Counsel for the accused appellant:
1. That PW-7 Gajendra Singh could not be regarded as an eye witness and he should be at the most a chance witness.
2. That statement of PW-7 Gajendra Singh was recorded on 31st December, 1998, after five days and there is no satisfactory explanation for this delay and furthermore, his presence is doubtful on the point that he did not inform to anybody and his conduct is unnatural one. Therefore, the learned Sessions Judge has wrongly placed reliance on the evidence of PW-7 Gajendra Singh.
3. That so-called recovery of Kuwadia Article-1 is also doubtful as the Fard of seizure of Kuwadia was prepared in Thana and it was recovered from open place and, therefore, it cannot be said that it was in conscious possession of the accused appellant.
4. That similarly recovery of Chola Article-2 does not in any way lead to the conclusion that accused appellant committed the murder of deceased.
5. That evidence of last seen witnesses, namely, PW-4 Jabar Singh and PW-9 Man Singh is also not believable and the learned Sessions Judge has wrongly placed reliance on them.
6. Hence, it is argued that it is a case of doubtful nature and the accused appellant be given benefit of doubt and he be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor and the learned Counsel for the complainant supported the impugned judgment and order passed by the learned Sessions Judge, Merta.
5. I have heard the learned Counsel for the accused appellant, learned Public Prosecutor and the learned Counsel for the complainant and perused the record of the case.
6. Before proceeding further, the medical evidence has to be seen, which is found in the statement of Dr. Jassaram, PW-14.
7. PW-14 Dr. Jassaram has deposed in Court that on 27.12.1998 being a Medical Officer he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:
1. Incised wound on Nape of Neck (cut down) which is in length 12 inch, width 4 inch and depth 3 inch, with 3/4 cervical verabetrae cut down. Wound extended from below left ear to below Rt. ear and Rt. ear labula was cut.
2. Lacerated wound 2x2 inch on left fore arm below the Lt. elbow joint.
3. Punctured wound lxl inch below the ear.
4. Punctured wound lxl inch above the Lt. clavicle bone.
5. M. Abrassions present with blood on both shoulders.
He has further stated that injury No. 1 was sufficient in the ordinary course of nature to cause death. He has further stated that injuries were ante mortem in nature. He has proved the post mortem report Ex.P/23.
8. Thus, from the statement of FW-14 Dr. Jassaram, the fact that death of the deceased was homicidal is well proved.
9. The next question which is to be seen in the present case is whether accused appellant has committed the murder of the deceased or not. For this, in the present case, there are two sets of evidence:
1. direct evidence which is found in the statement of PW-7 Gajendra Singh.
2. circumstantial evidence which includes:
(a) last seen evidence which is found in the statements of PW-4 Jabar Singh and PW-9 Man Singh;
(b) recovery of Kuwadia Article-1 at the instance of accused appellant; and
(c) blood stained Chola Article-2 belonging to the accused appellant.
10. First direct evidence, which is found in the statement of PW-7 Gajendra Singh, would be discussed.
Direct evidence
11. Before proceeding further, it may be stated here that report Ex. P/13 in the present case was lodged by PW-3 Jor Singh, who has stated that on the night of 26.12.1998, he saw the accused appellant in the field of Bhanwar Singh. PW-3 Jor Singh is the uncle of deceased. From the site plan Ex. P/1, it also proved that deceased was murdered in the field of Bhanwar Singh. In the report Ex.P/13, it was also mentioned by PW-3 Jor Singh that he heard that deceased was murdered by accused appellant and this report was lodged on the next day early in the morning. The evidence of PW-3 Jor Singh is relevant only to the above extent.
12. Now the most important evidence is of PW-7 Gajendra Singh, who is a child witness of about 16 years of age.
13. PW-7 Gajendra Singh states in his statement that field of Bhanwar Singh is near to his field and in the field of Bhanwar Singh, there were crops of Trilok Ram (accused appellant) and on the date of occurrence in the evening at about 6.00 PM, he went to his field and when he reached near the well of Ram Prasad, he heard the cries and then he saw deceased lying near the field of Jeera of Bhanwar Singh and accused appellant was giving blows to deceased with Kulhari and after seeing him, accused appellant rushed towards him and told him not to tell this incident to anybody otherwise he would kill him. He has further stated that being frightened he came to his house and in his house nobody was there, therefore, he did not tell incident to anybody. In his cross-examination, he has admitted the following facts:
1. That his brother's name is Devi Singh, who had gone to Punjab and his father had gone to Jodhpur.
2. That his mother was in the house, but he did not tell the story to his mother.
3. That he did not inform the police.
4. That for the first time he told about the incident to his father, who came from Jodhpur.
5. That police recorded his statement after 2-3 days and he remained in the village for five days continuously after the alleged incident.
6. That he saw the alleged incident at the distance of 50 pawras, but this fact is not mentioned in his police statement Ex.D/3.
7. That he told the alleged incident to his father and his father took him to the police station where he disclosed the whole incident.
8. That accused appellant gave only one blow in his presence to deceased.
9. That he did not make hue and cry.
14. The statement of PW-7 Gajendra Singh has been assailed by the learned Counsel for the accused appellant on various grounds, namely
(a) that he is a chance witness;
(b) that his conduct is unnatural one;
(c) that his name is not mentioned in the report Ex. P/13
(d) that his statement was recorded by the police with delay; and
(e) that he did not disclose this incident just after the occurrence.
15. In my considered opinion, if the statement of PW-7 Gajendra Singh is critically examined and seen in broad perspective, he appears to be a reliable witness.
16. So far as the non-mentioning of name of PW-7 Gajendra Singh in the report Ex.P/13 is concerned, there was no occasion for PW-3 Jor Singh to mention the name of PW-7 Gajendra Singh as the report Ex.P/13 was lodged on the next day early in the morning and at that time, PW-7 Gajendra Singh was not in picture.
17. No doubt PW-7 Gajendra Singh has not disclosed on the next day what he saw and he remained silent for 3-4 days and he waited for his father and narrated the whole story to his father, who took him to the police station. PW-7 Gajendra Singh was a child and he was threatened by the accused appellant on the spot that in case he would tell about the incident to anybody, he would be killed by accused appellant, therefore, if PW-7 Gajendra Singh has not disclosed this incident to anybody except to his father, after coming from Jodhpur, it does not mean that his conduct was unnatural one, rather it appears that his conduct was natural one and from a child, it could not be expected more what in the circumstances PW-7 Gajendra Singh did.
18. It is well settled that a child witness is prone to tutoring and hence the Court should look for corroboration.
19. In the case of a child witness the court has to carefully consider whether the child was under the influence of any tutoring. The testimony of child witness is to be approached with great caution and if there are serious infirmities and contradictions in his evidence, his testimony should not be accepted and no doubt a conviction can be based on the solitary statement of child witness, but law of prudence requires that if corroboration is available, that should remain in the mind of-the Judge.
20. In the present case, as it would be looked later on, the statement of PW-7 Gajendra Singh would get corroboration from other evidence also.
21. The Hon'ble Supreme Court in Raju alias Rajendra v. State of Maharashtra AIR 1998 SC 275 has held that evidence of eye witnesses should not be disbelieved merely because they did not disclose the incident to anybody till they were examined by the Investigating Officer.
22. Therefore, merely because statement of FW-7 Gajendra Singh was recorded by the police later on, after the alleged incident, it does not lead to inference that he is a tutored witness or a false witness.
23. From the statement of PW-7 Gajendra Singh, it does not appear that he has any sort of enmity with the accused appellant or he is telling lie or he is in a mood to falsely implicate the accused appellant, rather his statement appears to be straightforward and he is a reliable witness. His statement does not suffer from any basic infirmities.
24. The statement of PW-7 Gajendra Singh is further corroborated by medical evidence. As per post mortem report Ex. P/23, the injuries which were found on the body of the deceased, were caused by sharp edged weapon and PW-7 Gajendra Singh has categorically stated that he saw the accused appellant with Kulhari. From this point of view also, he appears to be a reliable witness.
25. For the reasons stated above, if the learned Sessions Judge has placed reliance on the statement of PW-7 Gajendra Singh, he has not committed any illegality or information doing so and in my opinion, he has rightly placed reliance on the statement of PW-7 Gajendra Singh.
26. The rulings relied upon by the learned Counsel for the accused appellant in Nanka v. State 1979 Cr.L.R.(Raj.)193, Nawla v. State 1981 Cr.L.R. (Raj.) 84 and Chandrabhan v. State of Rajasthan 1978 RLW 405 would not be helpful to the accused appellant for the reasons mentioned above and the facts of these rulings stand on different footing.
Circumstantial evidence
27. Now, the circumstantial evidence would be discussed.
Evidence of last seen
28. The learned Sessions Judge on this aspect has placed reliance on the statements of two witnesses, namely, PW-4 Jabar Singh and PW-9 Man Singh.
29. PW-4 Jabar Singh has stated in his statement that his field is near the field of Bhanwar Singh and deceased died on 26.12.1998 and on that day, he was coming to Dhani from Gotan and in the evening at about 4-5 PM, he saw both accused appellant and deceased in the field of Bhanwar Singh. This witness was cross-examined, but nothing has come out from his cross-examination showing that he is a false witness.
30. Another witness on this point is PW-9 Man Singh. He also states that on the fateful day in the evening in the field of Jeera belonging to Bhanwar Singh, he saw both accused appellant and the deceased and he further states that he saw the Kulhari in the hand of accused appellant. He further states that he asked the accused appellant about his torch, upon which the accused appellant told that torch was in the Chabutra of Hanuman temple and he also asked deceased whether he would not go home, upon this deceased replied that he would come later on. This witness further states that on the next day early in the morning he heard that deceased has been murdered. This witness was cross-examined, but nothing has come out which affects his testimony.
31. In my considered opinion, the statements of these two witnesses, namely, PW-l Jabar Singh and PW-9 Man Singh are trustworthy and reliable and the learned Sessions Judge has rightly placed reliance on them and their statements further go to prove that accused appellant and deceased both were seen together on the fateful day in the field of Bhanwar Singh. Thus, this circumstance further supports the version of ocular witness i.e. PW-7 Gajendra Singh.
32. Therefore, the argument that evidence of last seen is falsely created cannot be accepted in view of the fact that both witnesses, namely, PW-4 Jabar Singh and PW-9 Man Singh have uttered in a natural way and they have no enmity with the accused appellant.
Recovery of Chole Article-2 from the person of accused appellant.
33. PW-13 Chandra Singh is the Investigating Officer in this case. He states that on 27.12.1998 he arrested the accused appellant through Ex. P/11 and at that time, he was wearing Chola, which was stained with human blood and through Ex.P/12 in presence of Motbirs PW-2 Ramchandra and PW-10 Murlidhar, he seized that Chola and later on, it was sent to FSL and FSL report is Ex.P/22.
34. The statement of PW-13 Chandra Singh on this point further gets corroboration from two Motbirs, namely, PW-2 Ramchandra and PW-10 Murlidhar.
35. PW-2 Ramchandra states that when the accused appellant was arrested by police, he was wearing a Chola, which was stained with blood and police seized that Chola from the person of the accused appellant through Ex.P/12. Similar is the statement of PW-10 Murlidhar. Both witnesses have proved their signatures on the Fard Ex.P/12.
36. Thus, seizure of the Chola Article-2 stained with human blood from the person of the accused appellant is well proved from the statements of PW-2 Ramchandra. PW-10 Murlidhar and PW-13 Chandra Singh, I.O.
37. It may be stated here that generally in criminal trial, Motbirs of any Fard are found hostile, but in the present case, both Motbirs, namely, PW-2 Ramchandra and PW-10 Murlidhar clearly support the case of the prosecution on the point of recovery and seizure of Chola Article-2 stained with human blood from the person of the accused appellant. Thus, case of the prosecution in respect of seizure of Chola, Article-2 from the person of the accused appellant was rightly relied upon by the learned Sessions Judge.
38. This circumstance also goes in favour of the prosecution.
Recovery of Kuwadia Article-1 at the instance of the accused appellant
39. PW-13 Chandra Singh states that during arrest accused appellant gave information Ex.P/19 to him on 27.12.1998 that he could get recovered Kuwadia and in pursuance of that Information, in presence of two Motbirs, namely, PW-8 Ram Niwas and PW-5 Ayub Khan accused appellant got recovered Kuwadia Article-1 from the garden, where debris were there. In other words, this Kuwadia Article-1 was recovered from debris at the instance of the accused appellant.
40. The statement of PW-13 Chandra Singh on this point gets corroboration from the statements of PW-5 Ayub Khan and PW8 Ram Niwas, who are Motbirs of recovery of Kuwadia Article-1.
41. Both the Motbirs namely, PW-5 Ayub Khan and PW-8 Ram Niwas have clearly supported the case of the prosecution and thus, recovery of Kuwadia Article-1, which was stained with human blood, at instance of accused appellant is well proved.
42. This circumstance further strengthens the case of the prosecution on the point that it was accused appellant and non-else who committed the murder of deceased.
43. The argument that Kuwadia Article-1 was recovered from open place cannot be accepted, as it was concealed under the debris and after removing the debris, it was recovered.
44. In case of circumstantial evidence, the circumstances should be of definite tendency pointing towards the guilt of the accused and in their totality must unerringly lead to the conclusion that the offence was committed by the accused and none else.
45. The present case is an unique case, which has got circumstantial as well as direct evidence. Thus, it can easily be said that direct evidence, which is found in the statement of PW-7 Gajendra Singh gets corroboration from the circumstantial evidence and similarly, it can be said that circumstantial evidence gets corroboration from direct evidence and both direct evidence as well as circumstantial evidence further get corroboration from medical evidence.
46. It may be stated here that a conviction can take place even on the basis of circumstantial evidence or on the basis of solitary statement of a witness, if found trustworthy.
47. In the present case, both sets of evidence direct as well as circumstantial evidence lead to only one conclusion that deceased was murdered by the accused appellant and it cannot be said that it is a case of doubt in any manner and thus, the findings of the learned Sessions Judge convicting the accused appellant for the offence Under Section 304 Part-II I.P.C. are liable to be confirmed, as they are based on correct appreciation of evidence and this appeal is liable to be dismissed.
On point of sentence
48. In the present case, the accused appellant was convicted by the learned Sessions Judge for the offence Under Section 304 Part- II I.P.C. in place of 302 I.P.C.
49. Without commenting whether above findings are correct one or not or whether it was a case of culpable homicide amounting to murder punishable Under Section 302 I.P.C. but in this appeal, which has been filed by the accused appellant, this Court would not interfere with the findings of the learned Sessions Judge convicting the accused appellant for the offence Under Section 304 Part-II I.P.C. instead of 302 I..P.C.
50. Therefore, on point of sentence, the accused appellant is not entitled to further leniency and the punishment of seven years R.I. awarded to the accused appellant by the learned Sessions Judge cannot be said to be severe one and thus, the argument of the learned Counsel for the accused appellant that the accused appellant be awarded the sentence of the period which he had already undergone, appears to be absurd and unreasonable one.
For the reasons stated above, the appeal filed by the accused appellant Trilok Ram fails and is hereby dismissed, after confirming the judgment and order dated 11.12.1999 passed by the learned Sessions Judge, Merta.