Rajasthan High Court - Jaipur
Kalu Lal vs State Of Rajasthan on 14 March, 1989
Equivalent citations: 1989(2)WLN224
JUDGMENT R.S. Verma, J.
1. Thanks to an incompetent investigation, equally unfair, that brutal murder of a helpless lady is going unpunished.
2. Appellant Kalu Lal was convicted of an offence under Section 302, IPC by the learned Sessions Judge, Udaipur and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, vide judgment dated 19-3-1983.
3. Briefly stated, the prosecution story is; that on May 7, 1982, Smt. Raj Kanwar r/o Jawad, left Jawad in company of the accused appellant Kalu Lal by bus. She was seen off by PW 9 Shanker Singh and PW 11 Keshar Singh. Originally Shanker Singh was to proceed with Raj Kanwar to Udaipur but Jawad bus-stand the accused-appellant met Rajkanwar and Shanker Singh and told them that he was going to Udaipur and hence Shanker Singh need not accompany Rajkanwar. Upon this, Shanker Singh did not proceed for Udaipur and got down from the bus. It is alleged that Rajkanwar and the accused-appellant went to Udaipur where a prescription for Rajkanwar was obtained from a hospital on 9-5-1982. It appears that at Udaipur, the accused appellant stayed at Jain Dharamshala, most probably accompanied with Raj Kanwar. Some medicine was also purchased at Udaipur on 8-5-1982, in the name of Rajkanwar from one Vijay Medical Store. The prosecution story, further, is that the accused-appellant, along with Rajkanwar, proceeded to Kesariyaji and they stayed in Dharamshala Incharge where of was one Pradeep Singh, PSI. According to the prosecution story, the accused-appellant and Rajkanwar stayed in Room No. 46 of the Dharamshala, though no entry was got made in their names in the register of the Dharamshala. The prosecution story is that PW 5 Dalla had seen the appellant & the deceased staying in Room No. 46 of this Dharamshala where of this Dalla was the Chokidar. PW 7 Vardhichand happened to stay in Room No. 44 of this Dharamshala from 6-5 82 to 10-5-82. The prosecution story is that on 8-5-82 at about 4.00 P.M. Vardhichand spotted the appellant sitting in the verandah of Room No. 46, while this witness was sitting in the verandah of Room No. 44. According to the prosecution story, the appellant Kalulal went to Vardhichand and introduced himself as Ramchandra Gaur. He enquired about a hospital and a medical shop on the ground that the lady with him " Maji" was having some trouble. Vardhichand gave the address of the hospital and also of the medical shop. Thereafter the accused appellant went away and returned after i 5-20 minutes. Thereafter Vardhichand went away and returned the same day at about 7 or 8 in the evening. Thereafter he did not see the appellant. He saw the door of Room No. 46 locked in the morning of 9th May, 1982. On 10th May, 1982 he went away to the temple at about 7.00 A.M. and returned only at about 2 00 P.M.
4. The case of the prosecution, further, is that in the meanwhile, on 10-5-82. at about 7.30 am. PW 1 Pradeep Singh, along with Chokidar Dalla, went to take a round of Dharamshala When he reached room No. 46, he saw blood coming out of the room. There was thin stream of blood 6-7 feet in length and 2-1/2"-3" in width, flowing in the verandah. He found that the room was locked from outside. This aroused suspicion and he peeped into the room from a slit in the door-panels. He vaguely spotted some figure lying in the room. He, thereupon, enquired from Dalla, upon which Dalla told him that somebody had been staying in the room for two-three days. How ever, Dalla could not satisfy as to who was staying in the room. Upon this, Pradeep Singh checked from the Dharamshala register and found out that some passengers from Indore, had come and stated in Room No. 46 but they had vacated the same on 8th of May, 1982, and thereafter, this room had not been booked in any other name Upon this, he wrote out a report addressed to the Officer Incharge of the temple Shri Jagjeewanlal Bhandari. This report was forwarded to the S.H.O., Police Station, Rishabh Deo. He submitted this report before Shri Mohanlal P.W. 14. Upon this, Mohanlal draw a formal F.I.R. Ex P/12. Mohanlal himself proceeded to this Dharamshala. He got opened the lock of the room. He found that blood was flowing in the verandah from the room and in the room a woman was lying in a dead condition Mohanlal procused the services of a photographer and obtained certain photographs Ex. P/17 to Ex P/23. He found that the lady did not have any ornaments on her body except some plastic bangles. He arrived at a conclusion that somebody had killed the lady with a view to obtain her ornaments and had thereafter locked the room. Mohanlal, thereafter, prepared Panchnama Ex P/4. He also prepared site plan Ex P/3. Thereafter, he got the dead body examined by Dr. B.L. Malvi, PW 10.
5. Dr. B. L. Malvi conducted the post-mortem examination of the lady the same day and prepared the report Ex. P/16. According to him, the dead body was decomposed and there was discoloiration of skin at several places. Face was swollen, and cynosed with petechil haemorrhages The lips were blue and fluid was coming out of mouth and nostails. The tongue was swollen and was protruding out and was dark in colour and bruised with teeth bite. The fingers and palm of both the hands of the deceased were clenched. On the back of the dead body he found a bruise on the right side measuring 5" x 4" extending from below the scapula and going upto the midaxillary line. He could not detect any well defined mark of ligature on the neck, but he found that there was irregular partchy area of congestion in the sub-cutaneous tissue extending on the anterior and lateral surfaces of this neck There was extravacation of blood in the sub-cutaneous tissue and muscles of the anterior and lateral aspect of neck. Muscles were ruptured at places. There was evulsion of cuticle at various places.
6. He further found an irregular wound sized 1/4" x communicating with tracheal lumen on the upper anterior surface of trachen. Blood was present in the vicinity of the wound. Larya and trache was congested with fine frothy mucous.
7. In the opinion of the Doctor, the lady had died due to asphysia as a result of strangulation.
8. The prosecution story is that Shanker Singh and Kesar Singh met Mohanlal on May 14, 1982 at about 7.00 p.m. and informed him that their aunt Rajkanwar, w/o Gulab Singh had left with accused Kalulal, for Udaipur on 7-5-82 and she had not returned. They further told him that they had learnt that dead body of an unknown woman had been found out. At this Mohanlal showed photographs Ex P/23 to them and also showed the clothes of the deceased to these persons. Both of the them identified the photographs and the clothes to be of their aunt Rajkanwar. It was thereafter that Mohanlal arrested accused-appellant Kalulal on 16-5-82, vide Ex. P/8. It is alleged that at the time of arrest of the accused-appellant, one bill of Vijay Medical Store, dated 8-5-82, one receipt of Jain Dharamshalas, Udaipur, No. 10050 and one prescription of Rajkanwar dated 8-5-82 was recovered from the possession of the accused-appellant. These documents were taken into possession vide Ex.P9,
9. The prosecution story further is that the accused-appellant volunteered information to him in respect of ornaments belonging to the deceased lady. This information was recorded in Ex P/31. In pursuance of the aforesaid information and at the instance of the accused appellant, certain ornaments, articles 6 to 20, were recovered from the house of the accused-appellant. The ornaments were found tied in a piece of cloth, article 21. These ornaments were duly sealed and a memo Ex. P/11 was prepared in this respect. These ornaments were eventually sent with one Ranjit Singh, in a sealed condition to PW6 Sunderlal, Sarpanch of Rishabhdeo Gram Panchayat Shri Sunderlal conducted identification proceedings, at which Kesar Singh and Shanker Singh, identified the ornaments as belonging to Smt. Rajkanwar. Sundarlal prepared the memo Ex. P/13 in respect of this proceedings.
10. The prosecution story is that identification proceedings respect of accused-appellant was conducted at the instances of police by PW 8 Pushpendra Singh, on May 27, 1982 and in such identification proceedings Dalla and Vardhichand identified the accused-appellant.
11. Upon such investigation, a challan was filed against the accused-appellant, who on due commitment was tried by the learned Sessions Judge, Udaipur.
12. The learned Sessions Judge framed charge Under Section 302 IPC against the accused-appellant He pleaded not guilty and claimed to be tried.
13. The prosecution examined as many as 17 witnesses and produced 31 documents. In his statement recorded under Section 313, Cr.PC the accused appellant maintained his denial of the prosecution story. As regards the ornaments recovery from his possession, he stated that they belonged to his mother. According to him, he had been falsely implicated because of animosty. Though he stated that be would lead evidence in defence, it appears that he did not examine any witness in his defence.
14. After hearing both the sides, the learned Sessions Judge, arrived at a finding that it was the accused-appellant who had committed the murder of Smt. Rajkanwar. It. arriving at this finding, he relied upon the circumstantial evidence led by the prosecution, namely, the accused appellant had been last seen in the company of the deceased at Rishabhdeo. It was in the company of the accused-appellant that Rajkanwar has left Jawed. The ornaments of the deceased had been recovered of the information and at the instance of the accused-appellant. Upon such findings, he convicted and sentenced the accused appellant as aforesaid.
15. Learned Counsel for the appellant has challenged the correctness of the findings of the learned trial Judge. He submits that this is a case which is based purely on circumstantial evidence. The circumstances relied upon by the prosecution have not been proved beyond doubt. The evidence relied upon by the learned Sessions Judge is untrustworthy and does not inspire confidence the investigation in this case, to say the least, was incompetent and unfair and hence no case has been made out against the accused-appellant and he deserves to be acquitted.
16. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and submits that in this case there is sufficient evidence to show that it was the accused-appellant who had committed the murder of the deceased and had taken away her ornaments. "I have given our earnest considerations to the rival contentions and have perused the record carefully
17. It is trite law that in a case of circumstantial evidence the chain of circumstances has to be a complete one and no link should be missing from this chain; each link must be established by cogent and trustworthy evidence The chain of circumstances must lead to one and one inference, namely, that of the guilt of the accused and should be incompatable with any other hypothesis. In the present case, there is no ocular evidence to connect the accused-appellant with the crime directly and the case entirely rests upon circumstantial evidence. Hence, we have to examine if the various links in the chain of circumstances, have been established satisfactorily by the prosecution and if the chain of circumstances leads to irresistable conclusion of the guilt of the accused-appellant and is not computable with the hypothesis of his innocence.
18. First, we would like examine the evidence regarding the circumstance that it was in company of the accused-appellant that Smt Rajkanwar had left her home, as alleged by Kesar Singh and Shanker Singh. Here, it would not be out of place to mention that Gulab Singh is the husband of the unfortunate lady. He has been examined as PW 4 During the course of investigation, the story given by him was that his wife Rajkanwar had left with Kalulal for Udaipur to purchase medicines and he, along with his nephew was to accompany her but Kalulal told him that he would go with Rajkanwar and purchase medicines, upon which he sent his wife with the accused-appellant This story has been given ago by and by Gulab Singh and he has not supported this story. He has been declared hostile by the prosecution. But nothing useful has come out in his cross-examination. According to him, his wife left Jawad in his absence and when he returned after 3 or 4 days, he found his wife missing. Upon enquiries, his neighbours had told him that his wife had left with Kalulal. According to him, he along with Kesar Singh and Shanker Singh went to Udaipur in search of his wife but when she could not be traced, he returned. While Shanker Singh and Kesar Singh went to Rishabhdeo. He has further said that when he returned to the village, accused Kalulal met him but he did not enquire from him about his wife.
19. Shanker Singh and Kesar Singh have had tried to give cut out story that they had seen off Smt. Rajkanwar, along with accused Kalulal Their evidence is discrepant on various material particulars. According to Shanker Singh be had boarded the bus 2 day with Smt. Rajkanwar from his own house and had gone upto Jawad bus-stand, when the accused had met them and told them that he was going to Udaipur and Shankersingh need not accompany Rajkanwar to Udaipur This witness states that Rajkanwar was going to Udaipur without any purpose. He claims to have given out this story in his statement Under Section 151 Cr. PC that he had accompanied Smt. Rajkanwar to his house upto to Jawad. But on being confronted by Ex. D2, the statement of the Police, he admitted that the fact was not recorded therein. This witness was confronted by his previous police statement where in he had stated that his uncle Gulab Singh was present at the bus-stand. He denied that he had mentioned the presence of Gulab Singh at the bus-stand that day and stated at the trial that he had not seen Gulab Singh that day at all. According to Kesar Singh, he said his aunt Rajkanwar boarded the bus at Jawad bus-stand along with Shanker Singh According to him Kalulal said that he was going and, therefore, Shanker Singh need not go, upon which Shanker Singh got down. This witness does not corroborate the statement of Shankar Singh and Rajkanwar had boarded the bus from near the house of Shankar Singh and had come up to bus stand Jawad in that bus. As regards the purpose of the visit of Rajkanwar to Upaipur, fistly he said that he did not know that for what purpose she was going there. In the next breath he said that Rajkanwar was going to purchase some medicine.
20. Both the witnesses have given the details of the ornaments, which according to them, Rajkanwar was wearing while going to Udaipur. Their statements are a bit unnatural on this aspect of the matter Admittedly, Rajkanwar was not going to attend any grand function, where she would go wearing all the ornaments which are said to have been on her person. That Shanker Singh and Kesar Singh had any real occasion to notice minutely the ornaments which Smt. Rajkanwar was wearing, while boarding the bus is not worthy of evidence and this evidence of these two witnesses, thus, does not inspire confidence at all.
21. Learned Public Prosecutor laid much stress on the fact that the accused-appellant and Rajkanwar must have stayed at Udaipur because from the possession of the accused-appellant three documents were recovered, indicating that they must have gone to Udaipur Suffice it to say here that the recovery of these documents is highly suspicious Arrest memo, Ex. P/8 was prepared by Mohanlal It categorically states that at the time of arrest there was nothing on the person of the accused-appellant, except the wearing apparel In varnacular it has been recorded as follows:
vki cIrk 11 ,-,e- c-eqdnek Fkkuk gLc cIrk fxjrkj fd;k tkdj tkek ryk'kh yh xbZ rks flok; ikjpkr isk'khnuh dksbZ Hkh cjken ugh gqbZ A
22. This document destroys the effect of the recitals in Ex. P/9 which is said to have been prepared by Mohanlal with regard to recovery of bill of Vijay Medical Store, receipt of Jain Dharamshala Mandi, Udaipur and prescription of Rajkanwar dated 8-5-82. The prosecution has not explain how these two contradictory documents came to be prepared by the Investigating Officer.
23. Even assuming that the aforesaid documents were recovered from the possession of the accused appellant, the recovery does not advance the prosecution story any further. Nobody has been examined from Vijay Medical Store to prove that the accused-appellant, in company of Smt. Rajkanwar, that had come to the Store to purchase the medicine. No body has been examine from Jain Dharamshala Mandi, Udaipur, to show that Kalulal and the deceased had stayed in the Dharamshala. No doctor has been examined to prove the alleged prescription dated 3-5-82 which may go to show that the accused-appellant has accompanied the deceased to the doctor. To our mind, this recovery is a take one and of no consequence at all.
24. Now, we may consider the circumstances that the accused had been seen in Rishabhdeo, along with the deceased and both of them had stayed in Room No. 46. The testimony of Dulla has not been relied upon by the learned Sessions Judge and he has found the testimony of this witness highly unreliable.
25. The learned Public Prosecutor has tried to take support from the testimony of PW 5 Dalla and has urged that the testimony of this witness should not have been discarded by the learned Sessions Judge and the testimony would go to show that it was the accused-appellant, along with the deceased, who had come to stay in Room No. 46 of Dharamshala. We have carefully read the testimony of PW 5, Dalla and we find that it does not inspire any confidence at all. This witness, as Chokidar, was Incharge of the various rooms and it was his duty to get the names of the occupants of the various rooms registered in the register of Dharamshala. The name of the accused-appellant, or for that matter the name of the deceased, does not appear to have been entered in the register of the Dharamshala at all. Dalla claims to identify Kalulal as the person who had been seen sitting by him in Dharamshala with the deceased in Room No. 46. It is highly doubtful. If Dalla had seen accused appellant and deceased living in the room of Dharamshala, he would have definitely reported this matter to Pradeep Singh. But it does not appear that he ever reported the matter. In his cross-examination, he admitted that he had gone with Vardhichand and Premchand to the police-station and that time the accused appellant was sitting in the Police station. This admission destroys his testimony regarding identification of the accused-appellant in the jail as also in the trial court. We are, therefore, of the opinion that the learned Sessions Judge was right in discarding the testimony of this witness regarding identification of the accused-appellant Ex. P. 15 is the identification memo. Even before the Magistrate conducting the identification proceedings this witness admitted that he had seen the accused-appellant in the Police station.
26. Now, we may consider the evidence of Vardhichand on this aspect of the matter. Vardichand in his examination-in-chief stated that he was peon in a Bank at Kesariyaji. He was living in some rented house but he had a tiff with the landlord regarding same money and, therefore he, along with his family, moved to this Dharamshala on 6-5-82 and stayed there till 10-5-82. He saw the accused-appellant on 8-5-82 at 4 00 pm. sitting in the verandah of Room No. 46 At that time he was sitting in verandah of Room No- 44. Th:; accused-appellant came to him and enquired about the witness The witness told the accused that he was residing at Kesariyaji and was engaged in a Bank. Thereafter the accused told him that he, along with one 'Maujhi' had come for piligrimage and 'Manjhi' was suffering some trouble He further enquired about some hospital and a medical shop. The witness states that he did not see the ' Manjhi". He told the accused about the hospital and about the shop. Thereafter, the accused went away and came back after 15 or 20 minutes. According to him, the accused gave out his name as Ramchandra Gaur r/o Gogunda. The witness states that he himself went away and returned that evening about 7 or 8.00 p.m and thereafter, he went to sleep and he did not use the accused thereafter. According to him Room No. 46 was seen locked at on 9-5-82. Taking this evidence at best it goes to show that this witness saw accused-appellant sitting in the verandah of Room No. 46 on 8-5-82. He does not say that he saw the accused on 9-5-1982 or on 10-5-1982. He also does not say that he had seen the deceased in the room or for that matter anywhere also with the appellant. A person intending to commit a heinous offence like murder would not invite attention of others by going to them. The testimony of this witness is exfacie unnatural Read with the evidence of Dalla, we find that this witness had accompanied Dalla and Premshanker to Police Station where they had seen accused-appellant Kalu sitting. This witness has identified the accused appellant at the test identification parade. The test identification parade looses its entire importance when the accused has been shown to this witness in the Police Station.
27. There is one more aspect to be considered with regard to the evidence of this witness. In his cross-examination he had admitted that he sad been called by the police on 10-5-1982. and 11-5-82. According to him he had informed the police on 10-5-1982 itself that he had seen the accused in the verandah of Room No. 46. According to the Investigating Officer Mohan Lal, the statement of this witness was recorded on 12-5-1982 According to him, he had interrogated Vardhichand for the first time on 12-5-1982 itself. This statement of Mohanlal is in direct conflict of the testimony of Vardhi Chand and hence does not inspire confidence.
28. There is one more aspect of the testimony of this witness. During he course of investigation he tried to make out a story that he had seen the deceased also on 8-3-1982. He had gone to the extent of stating that he hand the deceased grooming at trial He has disowned this story and this also renders the statement of his witness infirm.
29. We may now consider the evidence regarding alleged recovery of ornaments and their alleged identification.
30. PW 14 Mohanlal has of course stated that after the arrest of the accused the accused had volunteered information to him in respect of the various ornaments and he had recorded the same in Ex. P. Dl and was in pursuance of such information he had recovered certain ornaments beneath a heap of dung-chekes from the upper storey of the house of the accused. According to him the ornaments were tied in a piece of cloth. He claims to have seized all these articles, vide Ex. P/11. There were two attesting witnesses of Ex. P11, namely, Shri Ratan Singh and Bhero Singh, Ratan Singh has not been examined by the prosecution. Bhero Singh has appeared in the witness box and he does not say that the ornaments had been sealed in his presence. He states:
bu lc tsojkr dks iqfyl okys xkaWB es cka/k dj ys x;s A xkWB es ckU/kus ds ckn xkWB ds Åij iqfyl us dqN ugh fd;k A
31. This goes to show that the ornaments alleged to have been recovered from the house of the accused were not sealed at all. According to Mohanlal Gulab Singh was present at the time of the recovery of the ornaments and he had claimed the ornaments as his. Bhero Singh contradicts this part of the testimony of Mohanlal and states that Gulab Singh had stated before him that he had a weak eye sight and, therefore, he could not identify the ornaments. It was Bhero Singh who had brought out the ornaments According to him, Shanker Singh and Kesar Singh were also there This admission of Gulab Singh goes to show that at the time of alleged recovery of the ornaments Shanker Singh and Kesar Singh were kept present In this, case, the Investigating Officer knew it fully well that the ornaments had to be identified if the recovery was to be used against the accused. Even then Shanker Singh and Kesar Singh were allowed to be present at the time of the recovery of the ornaments. All this makes the recovery of the ornaments and their subsequent identification a very dubious affair.
32. In this case, the identification of allegedly recovered ornaments was got conducted by PW 6 Sunderlal. Shanker Singh and Kesar Singh do not claim that they participated in any test identification conducted by Sunderlal. Of course PW 6 Sunderlal had deposed that he bad conducted identification proceedings and both these witnesses had identified the ornaments in his presence. But this statement of Sunderlal is not corroborated by the testimony of either Shanker Singh or Kesar Singh.
33. To our mind, it is also highly doubtful if Shanker Singh and Kesar Singh could have identified the ornaments of Smt. Rajkanwar Shanker Singh was cross-examined and asked about the ornament possessed by the wife of his brother Kesar Singh. He was unable to state what ornaments did his brother's wife possess. He was further cross-examined about the ornaments of his uncle Bhero Singh and he admitted that he did not know what ornaments the wife of Bheron Singh possessed. When Shanker Singh cannot depose about the ornaments possessed by his brother's wife or uncle's wife, then it become highly unnatural that he could have known and identified the ornaments belonging to Smt. Rajkanwar. The testimony ok' Kesar Singh in this regard is no better He has admitted that the ornament identified by him before the learned trial Judge were ordinarily worn by ladies from Rajput and Mahajan families. In his cross-examination he further admitted that the Investigating Officer had shown him the ornaments in presence of Gulab Singh and Shanker Singh. This makes the theory of tern identification highly unreliable and unworthy of cerdence.
34. There is one more aspect of the case which deserver to be taken note of. According to Dr. B.L Malvi, the dead body was examined by him on 10-5-82 at about 11 p.m. and the dead body was in a decomponed condition. That means that the lady had died much earlier. In his examination-in chief he admitted that she had died at least 2 to 3 days prior to the date of" post-mortem examination. As against this Pradeep Singh has made an attempt: show that when he went round the Dharamshala on 10-5-1982, a thin stream of blood was coming out from the room and it was still flowing on the verandah. To the same effect is the testimony of PW 5 Dalla. This goes to show that the theory that the attention of these witnesses was drawn to the stream of blood Hawing in the verandah is false and unreliable. If the lady had died two three days back to 10-5-1982 then blood would have definitely coagulated long back and these witness; would not have seen any stream off blood flowing in the verandah. The medical evidence referred to above goes to show that the deceased might have died even on May 7, 1982. If it were to be so, it is difficult to believe the prosecution evidence that it was on 7-5-82 that the accused had left with the deceased from Jawed and had proceeded to Udaipur and had been at Udaipur on 8-5-82. There is no evidence that the accused-appellant had been seen at this Dharamshala on 7-5-82. In these circumstances, the possibility cannot be ruled out that the lady might have gone all alone, even prior to 7-5-82 and might have reached Kesariyaji on 7-5-82 and might have been murdered that day by some other people. There is thus a grave doubt regarding the story that it was the accused-appellant who had committed the murder of the deceased.
35. In view of what we have stated above, we find that the prosecution has failed to prove its case against the accused miserably. We, accordingly accept this appeal and let aside the conviction and the sentence passed upon the accused by the learned Sessions Judge, Udaipur. The accused shall be set free, if not required in any other case, immediately.