Rajasthan High Court - Jodhpur
Om Prakash vs State on 14 February, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 907/2013
Om Prakash S/o Richhpal, by caste Jat, aged 30 years, R/o
Village Mithdiya, Police Station Mahajan, Tehsil Loonkaransar,
District Bikaner (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant : Mr. A.P. Singh, Amicus Curiae
For Respondent : Mr. Vishnu Kachchawaha, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J.
14/02/2019 The present jail appeal was admitted by this Court on 24/01/2014 and an Amicus Curiae was appointed vide order dated 22/01/2019 to assist the Court on behalf of the accused appellant.
The jail appeal aforesaid has been preferred by the appellant Om Prakash against the judgment dated 01/10/2013 passed by learned Special Judge, SC/ST (Prevention of Atrocities), Bikaner in Sessions Case No.24/2009, whereby the accused-appellant has been convicted and sentenced as under :-
Offence Sentence Fine In default 302 IPC Life Imprisonment 15,000/- 6 months' S.I. 376/511 5 years rigorous 5,000/- 6 months' S.I. IPC imprisonment 201 IPC 3 years rigorous 5,000/- 4 months' S.I. (Downloaded on 04/06/2021 at 11:26:47 PM) (2 of 14) [CRLA-907/2013] imprisonment
The facts in brief are that a written report (Ex.P.9) was lodged by Peera Ram (PW.6) with the Station House Officer, Police Station, Mahajan, District Bikaner mentioning therein that he was a resident of Mithdiya. His daughter and his grand daughter Soma were residing with him for the last 5-6 months. The previous day i.e. on 19/02/2009 at around 4-5 p.m., his grand daughter Soma went for collection of wood in Rohi (desert area). She did not return till 7-8 p.m. He informed his brother and nephew that Soma did not return home, therefore, they went and made a search for her in the Rohi. They all went in different directions to look out for the missing girl Soma. He returned home. At around midnight, Kalu Ram S/o Brajlal and Kalu Ram S/o Gajanand came and informed him that while they searching for Soma, they had reached Sigrasar Road and saw in the torch light that Om Prakash was carrying Soma on his shoulder. The Salvar of Soma was hanging down her legs. They tried to stop Om Prakash upon which he threw Soma on the ground and chased them with a lathi in his hand. They got frightened and ran towards the village. He informed of the entire story to the prominent persons of the village. Deepa Ram came around and informed that dead body of Soma was lying on the gravel road of Ranisar Village. He, along with the reputed persons of the Village reached the spot where Soma was lying dead.
On the aforesaid report, a formal FIR No.22/2009 was registered against the accused for the offences under Sections (Downloaded on 04/06/2021 at 11:26:47 PM) (3 of 14) [CRLA-907/2013] 302, 376 IPC and 3(2) and (5) of the SC/ST Act at the Police Station Mahajan, District Bikaner.
After completion of investigation, police filed a charge-sheet against the accused-appellant for the offences under Sections 302, 419 and 465 IPC.
Learned Trial Court framed, read over and explained the charges for the offence under Sections 302, 376/511 and 201 IPC and 3(2)(5) of the SC/ST Act to the accused appellant who denied the charges and sought trial.
During the course of trial, the prosecution examined as many as 18 witnesses and as many as 40 documents were got exhibited.
The accused-appellant was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial which he denied and stated that he did not commit any offence. He was innocent and had been falsely implicated in this case.
Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 01/10/2013. Hence this appeal.
We have heard the arguments advanced by learned Amicus Curiae and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record.
Shri A.P. Singh, Advocate appearing as amicus curiae for the appellant has fervently submitted that the testimony of PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal is not worth (Downloaded on 04/06/2021 at 11:26:47 PM) (4 of 14) [CRLA-907/2013] reliance as they stated that while they were searching Soma, they saw the accused Om Prakash carrying Soma on his shoulder and when they saw him, he ran and chased after them with a stick in his hand after throwing Soma on the ground. It is hard to believe that when two or three persons are searching a person who had taken away a minor girl of eleven years would not try to save the girl on the pretext that they got frightened because the accused showed them a stick. The conduct of PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal is unnatural. PW.1 Kalu Ram S/o Gajanand has not seen the place of incident as stated by him during his cross-examination.
He further submits that there is no explanation for the grave and significant delay of four days occasioned in forwarding the F.I.R. to the nearest Magistrate as the incident took place on the intervening night of 19-20.02.2009 for which an F.I.R. was allegedly registered at 7 a.m. on 20.02.2009 but the same was forwarded to the Magistrate as late as on 24.02.2009. The delay of four days in forwarding the F.I.R. to the Magistrate gains significance in view of the statement of PW.6 Peera Ram who is first informant and grand father of the deceased who stated that police got his thumb impressions affixed on blank papers. He contends that the entire story was cooked up by the police during this intervening period so as to falsely implicate the appellant in the case.
He further contends that as the entire incident took place in the pitch darkness of the night, PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal could not have identified the accused simply in the light of the torch. He further submits that body of (Downloaded on 04/06/2021 at 11:26:47 PM) (5 of 14) [CRLA-907/2013] the deceased was recovered at a distance of five kms from the place of incident which raises a doubt in the entire prosecution story as it cannot be comprehended that as to how the body of deceased was recovered at a distance of 5 kms from the place of the alleged murder. He contended that it is impossible to believe & totally beyond natural human behaviour that the accused would carry the dead body for a distance of five kms and discard it in the middle of road rather than secreting and disposing the same off in a concealed location. He further submits that the girl was at the mercy of the accused and if he had any intention to commit rape and murder her, there was no reason as to why he could carry the girl for a distance of 5 kms and that too on a public road so as to risk detection.
On the strength of the submissions made above, learned amicus curiae appearing for the appellant has prayed that the present appeal may be allowed and the appellant may be acquitted of the charges levelled against him by setting aside the judgment dated 01/10/2013 passed by learned trial Court.
Per contra, learned public prosecutor has supported the judgment dated 01/10/2013 on the strength of the testimony of the prosecution witnesses. He submits that PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal saw the appellant carrying deceased Soma on his shoulder and thereafter, she was found dead. Therefore, the testimony of witnesses PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal clearly establishes the fact that it was Om Prakash who was last seen in the company of eleven-year old girl Soma and there is no reason to disbelieve their evidence. Immediately thereafter, the dead body of Soma (Downloaded on 04/06/2021 at 11:26:47 PM) (6 of 14) [CRLA-907/2013] was recovered, therefore, it can be presumed that it is none other than the appellant who is responsible for committing the murder of deceased Soma.
He further contends that the statements of PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal get complete corroboration in material particulars from the medical evidence of PW.15 - Dr. Himanshu Kalara and PW.16 Dr. Pradeep Kumar who gave opinion that deceased Mst. Soma, aged 11 years, was strangulated to death and the postmortem report (Ex.P/34) shows that the cause of death is asphyxia due to throttling.
In view of these submissions, learned public prosecutor submits that no interference is warranted in the case and the appeal may be rejected.
We have considered the submissions made at the bar and minutely gone through the record of the learned trial court as well as judgment dated 01.10.2013 impugned herein.
PW.1 Kalu Ram S/o Gajanand stated that on the fateful day Peera Ram informed him, Kalu Ram S/o Brajlal and Deepa Ram S/o Kishna Ram that his grand daughter has been missing since 4- 5 p.m. On getting this information, they went in search of Soma. He & Kalu S/o Brajlal entered the agricultural field and tried to look in the torch light whereupon, they saw Om Prakash in the torch light. He was carrying Soma on his shoulder and her Salvar was hanging from her legs. When they confronted Om Prakash, he threw Mst. Soma on the ground and chased them with a stick. Both of them got frightened ran towards the village. They informed of the entire incident to Peera Ram. In the meantime, Deepa Ram came and told that he had seen Soma lying dead on (Downloaded on 04/06/2021 at 11:26:47 PM) (7 of 14) [CRLA-907/2013] the Choraha of Ranisar Village. Thereafter, he along with Rameshwarlal, Peera Ram, Kalu Ram, Deepa Ram and 8-10 other persons went to the spot. Peera Ram was sent for lodging the report. Om Prakash, after committing rape, murdered Soma by throttling her neck. During the cross-examination of this witness, he stated that he had not seen the place where the incident took place and he went to the place of incident along with police only. Soma was his grand-daughter in relation as Peera Ram is his brother.
PW.2 Kalu Ram S/o Brijlal deposed almost on the same lines as deposed by PW.1 Kalu Ram. During the cross-examination, he stated that he did not see accused Om Prakash committing rape or attempt to rape Soma. The place where the dead body was recovered is about 3 kms away from the place of incident.
PW.3 Deepa Ram stated that when he reached Ranisar Choraha, he saw dead body of Soma with injuries on her neck. He went to the house of Peera Ram and informed him about the entire incident.
PW.6 Peera Ram stated that his grand daughter went missing whereupon a search was made in the evening and PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram, S/o Brajlal also accompanied them in the search. He also went in search but came back home early. PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal came to his house and informed that they had seen the appellant Om Jhajadiya carrying Soma on his shoulder and when they tried to stop him, Om Jhajadiya chased them away with a stick in his hand. Therefore, they came back to the Village. Thereafter, Deepa Ram informed him that dead body of Soma is lying on the Ranisar (Downloaded on 04/06/2021 at 11:26:47 PM) (8 of 14) [CRLA-907/2013] road. During the cross examination, he stated that Rameshwar Sarpanch wrote the F.I.R. and the same was not read by him as he is illiterate. Police got his thumb impression affixed on ten blank papers.
PW.15 Dr. Himanshu Kalara and PW.16 Dr. Pradeep Kumar who conducted the autopsy upon the dead body of the deceased Soma stated that the cause of death was strangulation due to throttling. In cross examination, they admitted that there were no marks of sexual violence on the body of the girl.
PW.14 Jai Naraian Meena is the Police Officer who investigated the matter. During the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law.
Ex.P.34 is the postmortem report wherein the cause of death is shown as asphyxia because of throttling leading to death. It is also reported that there was no injury was detected on the private parts of the girl. The vagina and valva were healthy and PV hymen was intact.
The version of PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal appears to be highly improbable for the reason that both of them called by Peera Ram to look out for the missing girl and were in search of her. Despite this, when they saw Om Prakash carrying the girl on his shoulder, rather than making an attempt of saving her or raising an alarm to call the inhabitants of the area, both of them ran away from the spot towards the village when they were allegedly shown a stick. The conduct of both the witnesses is not only unnatural but also unbelievable. PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal were knowing (Downloaded on 04/06/2021 at 11:26:47 PM) (9 of 14) [CRLA-907/2013] this fact that a large number of persons were searching the missing girl in the near vicinity and, therefore, had they raised an alarm then people located in the close proximity would have reached the spot and nabbed the offender. Besides this, the claim of these two persons that they got frightened when Om Prakash showed them a stick is also hard to believe, more particularly, when they were searching their closely related girl child Soma. They failed to point out or locate the place of incident in their testimony. According to us, it is also highly improbable that any one would be able to identify a person in the torch light in a pitch dark night. Therefore, the testimony of PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal is not worth reliance and they not being reliable witnesses, their testimony is fit to be discarded.
As per the admitted facts, the incident took place on the intervening night of 19-20.02.2009 for which an F.I.R. was registered at 7 a.m. on 20.02.2009 which was a working day but the same was not forwarded to the concerned Magistrate till 24.02.2009. There is no explanation offered by the prosecution for the same. The delay of four days in sending the F.I.R. to the nearest Magistrate gains significance in light of the statement of PW.6 Peera Ram first informant who categorically stated that police got his thumb impressions affixed on ten blank papers. In our opinion, the prosecution case becomes highly doubtful and the possibility of the appellant having been falsely implicated in such circumstances cannot be ruled out.
We also note that as per the site plan, the place of incident is shown as agricultural field of Om Prakash where the child Soma (Downloaded on 04/06/2021 at 11:26:47 PM) (10 of 14) [CRLA-907/2013] was allegedly throttled to death after being subjected to rape. The dead body of the child was recovered near the Choraha of Ranisar Village, which is about 5 kms away from the place of incident. No explanation is forthcoming from the prosecution side as to how the dead body was recovered five kms away from the place of incident and who carried the same to such a long distance. Furthermore, there is nothing on record which shows that the place of incident was agricultural field of the accused as PW.1 Kalu Ram S/o Gajanand and PW.2 Kalu Ram S/o Brajlal failed to divulge or pinpoint the place of incident in their statements.
It is note worthy that as per the Medical Report, there is no opinion with respect to commission of rape with the deceased, rather the medical evidence ruled out the possibility of rape. In this background, the case of the prosecution that the accused kidnapped the deceased with the motive to commit rape and, thereafter, she was strangulated to death, falls flat on its face. It is also a fact that the deceased was eleven years of age and was totally at the mercy of the appellant, therefore, there was no hindrance for the appellant to satisfy his lust. Thus, the circumstance of motive attributed to the appellant is not corroborated by the medical evidence.
In wake of the discussion made above, we are of the firm opinion that the prosecution has miserably failed to prove the case beyond all reasonable doubts as the distance between "may be true" and "must be true" has not been travelled successfully by the prosecution in the present case Hon'ble Supreme Court considered the impart of such situation in the case of Sarwan (Downloaded on 04/06/2021 at 11:26:47 PM) (11 of 14) [CRLA-907/2013] Singh Vs. The State of Punjab reported in AIR 1957 SC 637 which is as under:
"In his cross-examination Dr. Singh admitted that injury No. I could have been caused by razor blade as suggested by the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been caused by rubbing against some hard substance. In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue. Then we have the evidence of blood-stains on the shirt and chadar worn by Sarwan Singh. If the explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood-stains on his dress cannot be seriously pressed against him. The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt may suggest that Sarwan Singh was associated with the criminals but that is very far from proving the charge of murder against him. Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand why it was not used. Then we have the evidence of the shoes which were found on the spot. The evidence of the shoe-maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh that very night. According to him, he has been manufacturing shoes like this pair though not on a large scale' Unfortunately, in his examination under S. 342 of the Code, no question had been put to Sarwan Singh about these shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him under S. 342 justifies his argument that this circumstance should not be used against him. Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan Singh is being tried. The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us; but we do not think it would be possible to regard the approver as a reliable witness or to (Downloaded on 04/06/2021 at 11:26:47 PM) (12 of 14) [CRLA-907/2013] hold that the confession of Sarwan Singh is voluntary or true. In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged. Appeals allowed."
In Anjan Kumar Sharma @ Ors. v/s. State of State of Assam AIR 2017 SC 2617, Hon'ble Supreme Court has observed as under :
"21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran,: (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:
34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the Accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the Accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the Accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot he said that the evidence of last seen together is to be rejected merely because the time gap between the Accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in (Downloaded on 04/06/2021 at 11:26:47 PM) (13 of 14) [CRLA-907/2013] this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such Accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the Accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.
As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case."
In view of the discussion made above and as we have concluded that the prosecution has not been able to prove the charges levelled against the appellant beyond all shadows of doubt. Consequently, the benefit of doubt is required to be extended to the appellant in the case.
Accordingly, the present appeal is allowed. The judgment dated 01/10/2013 passed by trial Court in Sessions Case No.24/2009 is quashed and set aside. The accused appellant Om Prakash is acquitted of the charges levelled against him by extending to him the benefit of doubt. He shall be released from (Downloaded on 04/06/2021 at 11:26:47 PM) (14 of 14) [CRLA-907/2013] the judicial custody forthwith if not wanted in any other case. The record of the trial Court be returned forthwith.
However, keeping in view the provisions of Section 437-A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- 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 Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
38-SanjayS/-
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