Rajasthan High Court - Jodhpur
Ajay Kumar @ Bhura And Anr vs State on 11 December, 2018
Bench: Pradeep Nandrajog, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 93/2010
1. Ajay Kumar @ Bhura S/o Ompal, By Caste Julaya, R/o
Chaiupura, P.S. Gangoh, District Saharanpur (U.P.)
2. Raju @ Satyendra S/o Jaypal, By Caste Julaya, R/o
Ghanghnor, P.S. Gangoh, District Saharanpur (U.P.)
(Lodged in Central Jail at Udaipur)
----Appellants
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Pradeep Choudhary
For Respondent(s) : Mr. C.S. Ojha, PP
HON'BLE THE CHIEF JUSTICE MR. PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment 11/12/2018
1. The appellants have been convicted for offences punishable under Section 302/34 IPC and Section 394/34 IPC.
2. Section 394 IPC reads as under:
"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
3. The person allegedly robbed and injured, is the deceased Santoshi, for whose death the appellants have been convicted for (2 of 7) [CRLA-93/2010] the offence punishable under Section 302/34 IPC. Thus, the appellants conviction for the offence punishable under Section 394/34 IPC is obviously surplus.
4. Case of the prosecution laid against the appellants was that they were earning livelihood by entertaining villagers in the form of performing stunts on a motor cycle and were staying in a room adjoining to a temple in village Devthadi from 23.09.2008. They were seen in the village in the morning of 30 th September, 2008. The deceased was seen alive in her house by her sister Bhanwari Bai at 10:00 a.m. on 30.09.2008 and after sometime she was seen alive by Bhanwari Bai in the field where she was found dead by her husband Madan Lal and two villager Narayan Lal, Bhanwar Lal at around 02:45 p.m. The motor cycle of the appellants was seen parked at around 01:30 p.m. on a pathway adjacent to the field where the deceased was found dead. The appellants were arrested on 04.10.2008 and confessed to have murdered the deceased and removed silver anklets, gold mangal sutra, ear rings and a nose pin from the body of the victim, which they got recovered from a room in which they were residing; the room belonged to Prem Shanker. Pursuant to the disclosure statement they got recovered the ornaments of the deceased which were successfully identified at a TIP conducted before Amrit Lal tehsildar by the husband and the wife of the deceased. The two also led the Investigating Officer S.H.O. Goverdhan Lal and pointed out the place where they had murdered the deceased. When they were arrested and sent for medical examination Dr.H.C. Soni recorded abrasions on the right and left elbow of appellant Ajay and an abrasion on the left elbow of Raju.
(3 of 7) [CRLA-93/2010]
5. In view of the testimony of Narayan Lal PW-1, Bhanwar Lal PW-2, Madan Lal PW-3, Bhanwari Bai PW-4, Kishan Lal PW-9 and Ramesh PW-7, the learned trial Judge has returned a finding that from the testimony of Bhanwari Bai PW-4 it was established that the deceased was alive in the field where her dead body was found at around 11:00 am and from the testimony of PW-1 to PW- 3 it was established that she was found dead in the field at around 02:45 p.m. and from the testimony of Kishan Lal PW-9 it was established that the appellant were in the village in the morning of 30.09.2008. From the testimony of Prem Shanker PW-11, the Landlord of the room from where the jewelery of the deceased was recovered, it has been held that it is proved that the appellants were staying in the room from 23.09.2008 onwards. From the testimony of Ramesh PW-7, apart from establishing that the appellants were in the village from 23.09.2008 onwards and were performing stunts on their motorcycle No.GJ-18-K-6068 till 29.09.2008, it was also established that the said motorcycle was seeing by him at 01:30 p.m. on the pathway adjoining the field where the deceased was found dead at 02:45 p.m. Meaning thereby last seen evidence with proximity of time when the deceased was alive with presence of the appellants near the place where she was seen alive and when she was found dead has been held established by the learned Court of Sessions.
6. We have pursued the testimony of PW-1, PW-2, PW-3, PW-4, PW-7 and PW-9 as also the testimony of PW-11 and learned counsel for the appellants concedes that said testimony establishes the presence of the appellants in the village from 23.09.2008 till the morning of 30.09.2008, but with a rider; being the testimony of Prem Shanker PW-11 who has categorically (4 of 7) [CRLA-93/2010] deposed that in the evening of 29.09.2008 the appellants returned the lock of the room where they were permitted to stay and had vacated the same. The testimony of Kishan Lal PW-9 is to the effect that the appellants sold him wheat in the morning of 30.09.2008. The aspect of the matter pertaining to Prem Shanker deposing that the appellants vacated the room in the evening of 29.09.2008 and the recoveries from the room on 06.10.2008 would be discussed by us while dealing with the evidence of recovery, but for the purposes of the evidence regarding presence of the appellants in the village, we treat the testimony of Kishan Lal as proof that they were seen in the village in the morning.
7. The incriminating evidence against the appellants is the testimony of Ramesh PW-7 who claims to have seen their motorcycle on the pathway at 01:30 p.m. Ramesh has so deposed as a witness of the prosecution. In cross-examination he evaded a reply when confronted that his statement was recorded under section 161 Cr.P.C. by the Investigating officer on 08.10.2008. He stated in his cross-examination that he does re-collect the date. But he admitted in cross-examination that he learnt about the deceased being murdered at 03:00 p.m and that he was present in the field when the Police arrived. Cross examined as to why he did not tell said vital fact to anyone, he claimed that he had told this to the people who had assembled which included the Investigating Officer.
8. In our opinion the witness is a planted witness for the reason his statement under Section 161 Cr.P.C. has been recorded on 08.10.2008 and the presence of the motor cycle of the appellants on the path way on 1.30 p.m. is too telling an incriminating fact (5 of 7) [CRLA-93/2010] for a person having knowledge of the same not informing the gathering including the Police Officers of said fact.
9. Thus, on the evidence of last seen, which requires importance of the close proximity of time between the deceased and the accused last seen alive and the deceased found dead, we hold that the test of proximity has failed. The evidence of the prosecution only establishes that the appellants were in the village in the morning of 30.09.2008.
10. On the evidence of recovery of the jewelery of the deceased, the evidence is the testimony of the Investigating Officer PW-22 that he recorded the disclosure statement of the appellants exhibit P-54 to Exhibit P-57, one each, qua recovery of the jewelry and one each qua pointing out the place where they murdered the deceased. Ram Lal PW-12 the witness to the recovery has deposed that the Police team summoned a person to get a key to open the lock of the room. We note that neither the key nor the lock have been seized. The testimony of Prem Shanker PW-11 the Landlord, as noted above, is that the appellants left the room after returning the lock to him on 29.09.2008. He has also admitted in his testimony that three other boys were also living in the same room. Who are these three boys? There is no evidence.
11. If, as deposed by Prem Shanker, the appellants vacated the room which they were sharing with three boys in the evening of 29.09.2008, they would have removed there belongings from the room. How could the appellants enter the room after murdering the deceased in the afternoon of 30.09.2008 and put the jewelry? The question begs an answer from the testimony of the witnesses. The evidence probabilities the recovery being planted. Thus, it is irrelevant that the husband and the sister of the deceased (6 of 7) [CRLA-93/2010] successfully identified the jewelry before the tehsildar; Shri Amrit Lal PW-17.
12. The MLC Exhibit-P-35 of Ajay and P-36 of Raju and the injury report Exhibit P-37 of Ajay prepared by Dr.H.C.Soni PW-19 recording abrasions on the right and left elbow of Ajay and an abrasion on the left elbow of Raju is not incriminating evidence because both of them used to perform stunts on a motorcycle and these injuries are explainable thereto. The last incriminating evidence that the appellants pointed out the place where they had murdered the deceased has to be considered in light of the fact that the Investigating Officer has seized the dead body from the field in question on 30.09.2008. The appellants were arrested on 04.10.2008 and the pointing out of the spot took place thereafter. The Investigating Officer had knowledge of the place much prior to the appellants being arrested.
13. Being a case of circumstantial evidence we are constrain to give the benefit of doubt to the appellants.
14. The appeal is allowed. The impugned judgment dated 08.04.2009 convicting the appellants for the offence punishable under Sections 302/34 and 394/34 IPC is set aside. Sentence imposed upon the appellants to undergo imprisonment for life for the offence of murder and 3 years R.I. for the offence punishable under Section 394/34 IPC is set aside. The appellants are directed to be set free if not required to be in custody in some other case.
20. However, keeping in view the provisions of Section 437A Cr.P.C. the accused appellants are directed to furnish personal bond in sum of ₹15,000/- each and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a (7 of 7) [CRLA-93/2010] Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
(MANOJ KUMAR GARG),J (PRADEEP NANDRAJOG),CJ 6-MohitTak/-
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