Rajasthan High Court - Jaipur
Datar Singh vs State Of Rajasthan Through Pp on 1 February, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 529 / 2012
Datar Singh
----Appellant
Versus
State Of Rajasthan Through Pp.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. S.S. Rathore.
For Respondent(s) : Mr. N.S. Dhakar, Public Prosecutor.
_____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment / Order Per Kanwaljit Singh Ahluwalia, J. (Oral) 01/02/2017 In a deserted factory, namely Mahindra Coach Factory, on 25.10.2009 around 7.15 AM Santosh son Sukh Mohan who was working there as Chowkidar was found murdered. Shankar (PW.10) son of the deceased relayed information to Daljit Singh (PW.3) owner of the factory. It has come in evidence that Daljit singh (PW.3) was residing at a distance of 18 kms. from his factory and upon receipt of information he passed on the said information on telephone to the police and proceeded to the premises of the factory. It has also come in evidence that Daljit Singh (PW.3) had made a telephonic call to No.108 for calling an Ambulance. Daljit Singh (PW.3) reached the premises of the factory and found dead body of Santosh in the compound of the factory.
To vouchsafe the facts, written report (Ex.P.1) was submitted (2 of 10) [CRLA-529/2012] by Daljit Singh (PW.3) on the basis of which formal FIR (Ex.P.2) bearing No.300/09 was registered at Police Station Vishwakarma, Jaipur City North for the offence punishable under Section 302 IPC. The above said FIR was investigated. Report of investigation under Section 173 Cr.P.C. was submitted against the appellant. The said report was submitted to the Court of Sessions and trial was entrusted to the Court of Additional District & Sessions Judge (Fast Track) No.1, Jaipur Metropolitan, Jaipur. The said court vide impugned judgment dated 5.4.2012 convicted the appellant for offence under Section 302 IPC. Having convicted the appellant for above said offence, the trial court vide a separate order of even date, sentenced him as under:-
"U/s. 302 IPC: Life imprisonment, to pay a fine of Rs.5000/-, in default of payment of fine to further undergo one month additional imprisonment."
Aggrieved against his conviction and sentence, the appellant has preferred the present appeal.
Prosecution in order to secure conviction of the appellant has examined 17 witnesses and has proved on record documents, Exhibits-P.1 to P.31. Thereafter statement of accused was recorded under Section 313 Cr.P.C. The accused pleaded false implication. No witness was examined in defence. However, reliance has been placed on the statement (Ex.D.1) of Vivek Verma (PW.16) recorded under Section 161 Cr.P.C. by the investigating agency.
It is not a case of direct evidence. Nobody had witnessed the occurrence. Prosecution to secure conviction of the appellant has relied upon circumstantial evidence. Before we deal with the (3 of 10) [CRLA-529/2012] arguments raised by Shri S.S. Rathore, learned counsel for the appellant, it will be appropriate for us to give gist of the evidence produced by the prosecution.
Dr. R.C. Gupta (PW.7) on 25.10.2009 at 1.30 PM had conducted autopsy on the dead body of Santosh. At the time of examination, the dead body was well built and nourised, rigor mortis was present on the extremities. Post-mortem staining was present on back and dependent parts. In the post-mortem report (Ex.P.12), the doctor noted following antemortem injuries on the person of deceased Santosh:-
"1. Bruise - An extensive bruise of 10cm x 5 cm at the Lt side of the neck, on dissection a haematoma was found beneath the skin along with fracture of laryngeal apparatus and 2-3 rings of trachea.
2. Bruise - of 12 cm x 2 cm at anterior wall of the chest.
3. Bruise of 14 cm x 7 cm at left side of pubic region.
4. Stab wound at the pubic region of 2 cm x 1 cm of size which was almost circular in shape with dried clotted blood matted to pubic hairs, at the site.
5. Lacerated wound of 3 cm x 1 cm size at the Lt occipito parietal region of the scalp with clean margin.
6. Lacerated wound of 6 cm x 2 cm with haematoma formation at the occipital area of head.
7. Stab wound at Lt side of forehead with clean regular margin, with depth up to the bone with clean cut margins of underlying bone, size is about 3" x 1" x 1".
8. Stab wound at Rt side of forehead, size is about 3" x 1/2" x 1", reaching up to the underlying bone.
9. Stab wound of clean cut margin at the Rt maxillary prominence of face, size was about 2" x 1" x 1", reaching up to the facial bones.
10. Lacerated wounds at & around the Lt pinna - 3 in number of size of 2 cm x ½ cm, 1 cm x 1 cm, 3 cm x 2 cm respectively.
All the above injuries were antemoten."
The Board of Doctors of which Dr. R.C. Gupta (PW.7) was a member, opined that cause of death was haematoma and (4 of 10) [CRLA-529/2012] neurogenic shock as a result of ante-mortem injuries to face, head and neck leading to damage of brain tissue and blood vessels. As per opinion of doctor, injuries on the person of deceased were sufficient to cause death in the ordinary course of nature.
Shankar (PW.10) son of the deceased in court deposed that he is resident of West Bengal. His father was employed as a Chowkidar in Mahindra Coach Factory. People used to call his father by the name of Bahadur. The witness used to reside with his father at Mahindra Coach Factory. Duty of his father was from 6.00 AM to 6.00 PM. In the night, duty of Chowkidar was performed by Datar Singh, accused-appellant. The witness stated that soon before the death of his father, Datar Singh awoke his father. He also woke up and thereafter he slept. In the morning his father was found dead. His father had suffered injuries on head and foot. The witness stated that he made a telephonic call to the owner of the factory. Thereafter dead body of his father was taken to SMS mortuary.
In cross-examination the witness admitted to be correct that his father used to perform duty in day hours and Datar Singh used to perform duty in the night. The witness admitted that Datar Singh woke up his father for morning duty and thereafter had left.
Daljit Singh (PW.3) owner of the factory in court deposed that he is Director of Mahindra Coach Factory, where body of buses were built. For last 5-6 months the factory was lying closed. In day hours Santosh used to act as a Chowkidar and in night, duties of Chowkidar were performed by Datar Singh and Shriphal(PW.1). Santosh and Shriphal(PW.1) were residing in the (5 of 10) [CRLA-529/2012] quarters situated in factory premises itself. Shankar son of Santosh also used to reside with father. Outside the factory, Mahendra (PW.4) was running a tea vend. The witness stated that on 25.10.2009 at 7.15 AM he received a telephonic call from Shankar son of Santosh. He was weeping and called him immediately as his father was bleeding. He left his house which is at a distance of 18 km. from the factory. He made telephonic call on No.108 to call ambulance. When he reached at the spot, he found that Santosh had died and his face was covered with a cloth.
Mahendra (PW.4) who was running a tea vend has not supported the case of the prosecution and was declared hostile to the prosecution.
Star witness of the prosecution is Shriphal (PW.1) who like accused Datar Singh and deceased Santosh was also employed as Chowkidar in the factory.
Shriphal (PW.1) in court deposed that he was working in the factory as Chowkidar for last twenty years. Alongwith him, Santosh and Datar Singh were also employed as Chowkidar. His duty hours were from 7.00 PM to 7.00 AM. Santosh used to act as a Chowkidar in day hours. The witness stated that son of the deceased used to stay in the factory. The witness further stated that the deceased used to urinate in front of Datar Singh, due to which Datar Singh was annoyed and had given a threat to the deceased. The witness further stated that in the morning he used to milch the milk in the neighbouring factory. Datar Singh on the day of occurrence told him to go for milching the milk, " eSa nw/k (6 of 10) [CRLA-529/2012] fudkyus N cts ls ifgys pyk x;k FkkA ". The witness stated that after milching the milk when he was returning, he saw that Datar Singh was going on bicycle. He reached at the factory and found that Santosh had died inside the factory. The witness in cross- examination stated that he and Datar Singh were performing duty from 7.00 PM to 7.00 AM, "esjh o nkrkj flag dh M~;wVh 'kke ds lkr cts ls lqcg lkr cts rd jgrh Fkh tks lkFk&lkFk jgrh FkhA ".
We may also notice here that on 26.10.2009 Datar Singh appellant was arrested vide arrest memo (Ex.P.13). On 27.10.2009 Datar Singh suffered disclosure statement (Ex.P.27) wherein he disclosed that he kept concealed the Jarsi and pant worn by him at the time of occurrence, at his residence. On 27.10.2009 itself accused Datar Singh suffered disclosure statement (Ex.P.28) wherein he disclosed that he kept concealed iron rod which was used for causing murder at Road No.11, near a closeby factory.
Prosecution examined Constable Ramswaroop (PW.12) to prove recoveries in pursuance of disclosure statements made by the accused. The witness stated that on 27.10.2009 in pursuance of disclosure statement made by accused under Section 27 of the Indian Evidence Act, from the house of accused situated at Gulab Bari Road No.17, Vishwakarma, he got recovered pant and Jarsi. Said clothes were taken into possession vide recovery memo (Ex.P.15). In cross-examination, the witness stated that the Investigating Officer made an attempt to associate an independent person, but since nobody had come forward, he attested the memo of recovery.
(7 of 10) [CRLA-529/2012] We need not notice statements of the remaining witnesses. We have heard Shri S.S. Rathore, learned counsel for the appellant.
Shri S.S. Rathore at the first instance has referred to the postmortem report (Ex.P12) to contend that in the same it is recorded that dead body of Santosh was brought to the mortuary in the afternoon of 24.10.2009. Learned counsel has thus, contended that murder had taken place on 24.10.2009 and postmortem was conducted on 25.10.2009. Learned counsel has contended that if the date noted in the postmortem report (Ex.P12) regarding bringing of dead body in the mortuary is taken into consideration, the entire prosecution case will fall on the ground as witnesses have stated that the occurrence took place in the early morning of 25.10.2009.
At the first instance, the argument raised by the learned counsel for the appellant look attractive. But a minute observation of the postmortem report (Ex.P12) reveal that rigor mortis was present on the extremities. It had not spread on the whole body. Therefore, if Panchayatnama/inquest report (Ex.P4) prepared on 25.10.2009, along with evidence of the witnesses and the Investigating Officer are taken into consideration, it seem that the doctor had wrongly noted 24.10.2009 as the date on which the dead body was brought to the hospital.
In the present case, it has come in evidence of Shriphal (PW.1) that factory was lying closed. It was a deserted place. Pigeon used to fly. The witness has stated in court, okjnkr ls ifgys gekjh QSDVh cUn Fkh] dksbZ dke ugha gksrk Fkk] dcwrj mMrs FksA (8 of 10) [CRLA-529/2012] Daljit Singh (PW.3) owner of the factory has also stated that the factory was lying closed. Thus, it is apparent that on the day of occurence the factory was not being used for any ingress and outgress of people except staff. Datar Singh appellant was employed there as Chowkidar. For entry of any person in the factory and going out of the factory, appellant being Chowkidar of the premises has to explain. Shankar (PW.10) stated that in the morning Datar Singh woke-up his father. Shriphal (PW.1) has stated in categorical terms that Datar Singh was present in the factory premises and deceased was also there. Shirphal (PW.1) left the factory. When he was returning he saw the accused going on cycle. Therefore, it is for the accused to explain as to how Santosh had died when especially being Chowkidar he had to guard the premises in which the murder has taken place. Facts in the special knowledge are to be explained by the accused. Presumption under section 106 of the Indian Evidence Act can be drawn against the appellant.
Shriphal (PW.1) has stated that the present appellant was having a running feud with the deceased as he was annoyed with the deceased due to his habit of urinating in open place. Therefore, Shirphal (PW.1) and Shankar (PW.10) prove presence of the appellant at the place of occurrence around the time of occurrence. Shirphal (PW.1) has also proved motive on the part of the appellant Daljit Singh (PW.3) owner of the factory corroborate Shankar (PW.10) and Shriphal (PW.1) to the extent that the present appellant in the night used to guard the premises as Chowkidar.
(9 of 10) [CRLA-529/2012] Having held that presence of the appellant at the scene of occurrence, around the time when the occurrence took place has been proved by the prosecution, we have to find whether any further evidence has been led by the prosecution to complete the chain of circumstances that the offence has been committed by the appellant or not.
We find that in pursuance of disclosure statement (Ex.28) made by the appellant, appellant got recovered iron rod which was used as a weapon of assault. We have also noted that on the basis of disclosure statement (Ex.P27), made by the accused, he got recovered Pant and Jarsi from his house. Report of SFSL (Ex.P31) is a clincher. On serological examination of articals, it is found that blood on gauge, Kambal, Pant and Shirt of the deceased, metallic rod, pant and Jarsi of the accused contain human blood group 'B'.
Learned counsel for the appellant has vehemently assailed recoveries affected at the instance of the accused. Learned counsel has submitted that in the postmortem report (Ex.P12), two kinds of injuries were noted, i.e. bruise and stab wounds. Thus, learned counsel has submitted that the injuries were caused by two weapons. It is submitted that the medical report contradict recovery of iron rod. To lend force to this argument, learned counsel has referred to cross-examination of Dr. R.C. Gupta (PW.7) who has stated that possibility cannot be ruled-out that the injuries can be caused by two different weapons.
We find that the iron rod was not shown to the doctor pointing a specific question whether both kinds of injuries can be caused by same weapon or not. One who has to take a positive (10 of 10) [CRLA-529/2012] advantage has to prove the same by asking a specific question. We can infer that all iron rods are not having a rounded shape. It do have splinters also and is sometimes pointed edge also. Therefore, to us, presence of blood stains of human blood 'B' group in itself is sufficient evidence to hold that the iron rod was used as a weapon of assault. Shri S.S. Rathore has referred to seizure memo (Ex.P15) to contend that it is not referred therein that clothes of the accused were having blood stains.
In the present case occurrence had taken place on 25.10.2009, appellant was arrested on 26.10.2009, recovery of clothes was affected on 27.10.2009. In the present case clothes of the accused have not remained in the Police Station for long as clothes of both deceased and accused reached at State Forensic Science Laboratory on 30.10.2009. In the present case Shriphal (PW.1) has no enmity with the accused appellant. He admitted that he was friend of Datar Singh and was having cordial relation with the accused and he used to have a light hearted talks with him and also exchange of jokes. We find it difficult that the appellant has been falsely implicated in the present case.
Therefore, taking totality of the circumstances, we are convinced that the prosecution has succeeded in proving its case.
Consequently, the present appeal being devoid of merit is dismissed and the judgment of conviction and the order of sentence passed by the trial court is affirmed. (PRAKASH GUPTA)J. (KANWALJIT SINGH AHLUWALIA)J. Govind/-