Rajasthan High Court - Jaipur
Bisawan vs State on 12 August, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
[1] D.B. CRIMINAL APPEAL NO.518/2004
Bisawan Versus State
[2] D.B. CRIMINAL APPEAL NO.1672/2003
Puran Chand @ Puran Mal Versus State
[3] D.B. CRIMINAL JAIL APPEAL NO.517/2004
Bisawan Versus State
AGAINST THE JUDGMENT DATED 13.11.2003 PASSED BY ADDITIONAL SESSIONS JUDGE (FAST TRACK), BEHROR DISTRICT ALWAR (RAJ.) IN SESSIONS CASE NO.28/2003 [69/2002].
DATE OF JUDGMENT : 12/08/2011
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE S.S. KOTHARI
Mr. Deepak Soni for ]
Mr. Praveen Balwada ] for appellants
Mr. V.S. Yadav ]
Mr. J.R. Bijarnia, P.P., for State
****
REPORTABLE BY COURT (PER HON'BLE S.S. KOTHARI,J.):
D.B. Criminal Jail Appeal No.517/04, Bisawan Vs. State was received in this Court from Superintendent, Central Jail, Bharatpur. Another Appeal, i.e., D.B. Criminal Appeal No.518/2004, Bisawan Vs. State of Rajasthan, was filed on behalf of the said appellant by Sh.Praveen Balwada, Advocate. This appeal was barred by limitation and the delay of 35 days in filing the appeal was condoned by this Court vide order dated 30.04.04. D.B. Criminal Appeal No.1672/03, Pooran Chand alias Pooranmal was filed on behalf of the said appellant by Sh. V.S. Yadav, Advocate. As in all the above three appeals, the judgment passed by Sh. Hari Kishan Khichar, R.H.J.S., Additional Sessions Judge (Fast Track) Behror, District Alwar in Sessions Case No.28/03 (69/02), State Vs. Bisawan and another under Section 302 read with 34 I.P.C. by which the appellants were convicted for offence under Section 302 I.P.C. to life imprisonment and fine of Rs.2000/- each and in default of payment, they were to undergo simple imprisonment for three months each, all the three appeals are being decided by this common judgment.
In brief, the facts of the case are that at 11.30 a.m. on 20.07.02, Manaram S/o Prabha Ram resident of Mehenpur informed Police Station Bansoor on telephone that dead body of an unknown person aged about 35 years is lying in the forest of Mehenpur, Khadla. On getting the information, Onkar Singh, ASI, made an entry about it in Rojnamcha Ext.P16. He informed S.P., Alwar and Additional S.P., Bhiwadi about the said information by wireless and talked to S.H.O. Bansoor on telephone, as he had gone to attend the meeting at Bansoor. Sh. Onkar Singh A.S.I. alongwith police personnel went to the site from the police station, while S.H.O. Bansoor reached the spot directly. Pooran Chand S/o Onkar submitted a written report Ext.P12 to S.H.O. Bansoor at the site stating therein that his younger brother, Girraj, resident of village Dhakla, left his house in the morning of 18.07.02 alongwith Pooran Chand s/o Prahlad Gujar, Bisawan S/o Ghhitar Gujar residents of village Dhawdi, and Ram Charan S/o Johri resident of Mehenpur. After completing the work in Tehsil Bansoor, they went to attend the marriage of the daughter of Arjun Sarpanch. Thereafter, Ram Kanwar and Raghu Nath sons of Chhajuram Gujar, residents of Dhani Garal also went with them. After murdering Girraj, his dead body was thrown in Mehenpur Ka Nala. The police was requested to take necessary action. The aforesaid written report was sent to the Police Station, Bansoor where an FIR No.144/02 under Sections 147 and 302 I.P.C. was registered. The police conducted an investigation. The dead body was seized and its postmortem was got conducted on the spot by the team of Doctors. The police took samples of plain earth, and blood stained earth from the spot. The appellants were arrested. They gave information under Section 27 of Indian Evidence Act which was recorded. The police inspected the site alongwith the appellants and prepared Memos Ext.P10. One blood stained stone was also recovered. At the conclusion of the investigation, the police submitted a report against the appellants under Section 173 Cr.P.C. in the Court of the learned Judicial Magistrate, Bansoor. The police also concluded that no offence is proved against Ram Charan, Ram Kanwar and Raghunath. The appellants were committed for standing trial to the learned Additional Sessions Judge, Bansoor from where the case was transferred for trial to the Additional Sessions Judge (Fast Track) Bansoor. Charges under Section 302 read with Section 34 IPC were framed against the appellants to which they pleaded not guilty and claimed trial. The prosecution produced 19 witnesses, documents Ext.P1 to P37 and articles 1 to 6 to support its case. In their statements under Section 313 Cr.P.C. the appellants stated that the witnesses have falsely deposed against them and they are innocent. However, they did not produce any witness in defense - only documents Ext.D1 to D8 were got exhibited. After hearing the parties, the learned Trial Court held the appellants guilty for offence under Section 302 IPC and sentenced them as mentioned above.
We have heard the learned counsels for the appellants and the Public Prosecutor carefully at length and gone through the judgment of the learned Trial Court. We have also scanned the file of the Trial Court.
The learned counsels for the appellants have submitted that the prosecution miserably failed to prove the case against the appellants and the learned Trial Court has committed grave illegality in convicting them.
The learned Public Prosecutor has supported the judgment of the learned Trial Court and contended that from the evidence on record, it is proved that the appellants committed murder of Girraj with full determination.
The learned counsels for the appellants have submitted that there is no direct evidence against the appellants and the prosecution case hinges on circumstantial evidence. According to them, there are many missing links in the chain of circumstances and as such the learned Trial Court has committed illegality in convicting the appellants. Reliance has been placed on the case of Rajendra Vs. State of Rajasthan 2006 (1) RCC 405.
The learned Public Prosecutor has submitted that it is not necessary that there should be direct evidence in all the cases and conviction can be based even on circumstantial evidence. We have considered the rival submissions. Before embarking upon discussion of the evidence, it is necessary to examine the law relating to circumstantial evidence.
The Honble Apex Court in the case of Bodh Raj alias Bodha and others Vs. State of Jammu & Kashmir, AIR 2002 Supreme Court 3164 has held as under:
For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts...........
The Honble Apex Court in State of U.P. Vs. Satish, AIR 2005 Supreme Court 1000, after referring to its earlier judgments since 1977 has held that for basing conviction on circumstantial evidence Incriminating facts and circumstances must be incompatible with innocence of accused or guilt of any other person. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with principal fact sought to be inferred from those circumstances.
Keeping the aforesaid principle of law in mind, we proceed to examine the evidence produced by the prosecution in this case. The prosecution has relied on the following circumstances for proving offence against the appellants:-
1.The appellants had shown their intention of murdering Girraj, the deceased.
2.The deceased, Girraj, left his village with the appellants.
3.The deceased and the appellants attended the marriage of the daughter of Arjun Sarpanch together.
4.After attending the marriage, the deceased and the appellants went together towards village Mehenpur.
5.The appellants made extra judicial confession about the crime before two persons.
6.The appellants did not return to their house after the crime.
The prosecution has led evidence to prove the aforesaid circumstances.
In order to prove the first circumstance, Jairam PW-12 has stated that he had gone to Bansoor on 17th when Pooran and Bisawan met him. They told him that they have come there for getting a deed registered and asked him whether he would have sweets or drinks. Jairam said that he would like to have sweets. Thereafter, they enquired from him about the whereabouts of Girraj and when he asked them why they are enquiring about him, they told him that they will murder him. At this, Jairam asked them not to commit such an act. This witness has been cross-examined at length on behalf of the appellants but nothing has come on record to disbelieve his above statement.
In order to prove the second circumstance, the prosecution produced Yadram PW-13, Santosh PW-17 and Pooran PW-18, who have stated that the appellants went to the house of Girraj deceased and from there they left for Bansoor to attend some work in Tehsil. All these witnesses have been cross-examined at length but their statements remain uncontroverted. In order to prove third circumstance the statements of Ram Niwas PW-16 and Basanta PW-19 are important. They have stated that the deceased went reluctantly along with the appellants to Bansoor because the wife of deceased wanted Girraj to stay back for showing their buffalo to the veterinary doctor but the appellants insisted and Girraj agreed to accompany them.
In order to prove the third circumstance, Yadram PW-16, Pooran PW-18 and Basanta PW-19 have stated that the deceased alongwith the appellants attended the marriage of the daughter of Arjun Sarpanch at Swamiyo Ki Dhani. During their cross-examination they have clearly stated that they saw the appellants and the deceased together in the marriage. During their cross-examination, their statements could not be shaken.
In order to prove the fourth circumstance, the statement of prosecution witnesses Yadram PW-13, Ram Niwas PW-16 and Pooran PW-18 are to be examined. Yadram PW-13 has stated that there was some discussion between the appellants and Girraj about giving Kanyadan in the marriage. The appellants wanted to give Rs.11/- each while Girraj suggested they should give Rs.51/- each. The appellant Bisawan took out the purse from the pocket of Girraj and when Girraj wanted his purse back the appellants told him that they will return the purse and will also have dinner later on. The appellants forcibly took Girraj towards Mehenpur. Ram Niwas PW-16 has stated that there was some controversy between Girraj and the appellants about giving Kanyadan. He has further stated that Pooran caught hold of the hand of Girraj and took him towards Bisawan and thereafter all the three proceeded towards Kharda. Pooran PW-18 has stated that Bisawan and Pooran took Girraj by holding his hand towards Mehenpur. All the three witnesses have been cross-examined at length but their presence in the marriage is not assailed and their statements could not be shaken.
In order to prove the fifth circumstance, it has emerged in prosecution evidence that when Girraj did not return to his house after attending the marriage, his wife, Santosh PW-17 asked Chanda and Prasadi who were going to Bansoor to tell her husband that he should return home early as both his daughter and the buffalo are ill. Prasadi PW-14 has stated that when Chanda and he were going towards Mehenpur, Bisawan and Pooran met him on the way. He enquired from them where they had left Girraj. They kept mum for some time. Thereafter, Pooran told him that he and Bisawan have murdered Girraj and started weeping. Bisawan caught Pooran by the hand and took him aside. Chanda PW-15 has also given similar statement. He has deposed that when he enquired from Pooran and Bisawan about Girraj, Pooran said that they have committed a mistake and murdered Girraj. These witnesses were cross examined on behalf of the appellants at length but nothing material could be elicited. They stood the test of cross-examination very well.
In order to prove the sixth circumstance, the prosecution has led evidence to the effect that when the dead body of Girraj was found and Prasadi PW-14 and Chanda PW-15 told the police about the extra judicial confession made by the appellants, the police searched for them at their house but they were not there and were absconding. Prasadi PW-14 and Ashok Kumar PW-9 have stated that the appellants were not available at their house.
From the above discussion, it is found that the prosecution has produced evidence to prove the above six circumstances to show that the appellants took the deceased from his house and went with him to Bansoor. Thereafter they went to attend the marriage of daughter of Arjun Sarpanch together. From there they went towards village Mehenpur together and the dead body of Girraj was discovered in a Nala of the forest of village Mehenpur. When Prasadi and Chanda met the appellants and enquired from them about Girraj they confessed that they have murdered him. When the police reached the spot and recovered the dead body and made a search for the appellants it was found that they had not returned to their houses after the marriage and are absconding. From the above evidence, the chain of circumstances is complete and there are no missing links. Hence, we are unable to accept the argument of the learned counsel for the appellants that the circumstantial evidence produced by the prosecution has failed to prove any case against the appellants.
The learned counsels for the appellants have submitted that the police recorded the statements under Section 161 Cr.P.C. of Yadram PW-13 and Ram Niwas PW-16 on 05.08.02, Prasadi PW-14, Chanda PW-15 on 15.08.02 and Jairam PW-12 on 20.08.02. They have contended that due to late recording of the statements of the aforesaid witnesses, their statements cannot be relied upon. The learned Public Prosecutor has submitted that there is nothing on record to suggest that the Investigating Officer purposely and illegally delayed recording of the statements. Hence, the statements of the witnesses are to be taken into consideration. We have carefully considered the rival contention. The Honble Apex Court has in the case of Bodh Raj (Supra) held that it cannot be laid down as a rule of universal application that if there is any delay in examination of particular witnesses the prosecution version becomes suspect. It would depend upon several factors. In the case of State of U.P. (Supra) it has been held that the delay in examination of the witnesses by Investigation Officer does not ipso facto make prosecution version suspect. For that the Investigation Officer has to be categorically questioned on the aspect of delayed examination. A perusal of the statement of Ashok Kumar PW-9, the Investigating Officer, shows that no question was put to him on behalf of the appellants as to why he recorded the statements of the aforesaid witnesses after delay. Keeping in mind the aforesaid principle of law propounded by the Honble Apex Court, the objection of the learned Counsel for the appellants is overruled.
The learned Counsels for the appellants have submitted that the evidence of last seen produced by the prosecution is not sufficient to prove offence against the appellants. Reliance has been placed on the case of Dayal Ram Vs. The State of Rajasthan 2006 (2) WLC (Raj.) 235.
The learned Public Prosecutor has submitted that the evidence of last seen together is an important circumstantial evidence against the appellants and it cannot be discarded. We have considered the above submissions carefully. In the case relied upon on behalf of the appellants the evidence of last seen was not held to be sufficient as there was no other direct linking evidence against the accused while in the present case there are other evidences against the appellants. The Honble Apex Court in the case of Bodhraj (Supra) held that the last seen theory comes into play where the time gap is so small between the point of time when the accused and deceased were last seen alive and when the deceased was found dead that the possibility of any person other than the accused being author of the crime becomes impossible. As discussed above, the appellants and the deceased were seen alive together on the night of 18.07.02 during the marriage at the house of Arjun Sarpanch and from there they proceeded together to village Mehenpur. The dead body of Girraj was found by the police on 20.07.02. According to the statements of Dr. Rajendra Khatri PW-5 and Dr. Subhash Yadav PW-10, Girraj died about 36 hrs before his postmortem. Moreover, the appellants made extra judicial confession before Prasadi PW-14 and Chanda PW-15 on 20.07.02. Thus, the time gap between the evidence of last seen together and the crime is not much. Hence, the evidence of last seen is very relevant and important in this case and as such the objection of the learned Counsel for the appellants is found to be without any substance.
The learned Counsels for the appellants have submitted that the evidence of extra judicial confession produced by the prosecution is unreliable. The learned Public Prosecutor has submitted that the evidence of the prosecution is very specific and clear. We have considered the above submissions. We have already discussed the statements of Prasadi PW-14 and Chanda PW-15. From their statements it is found that they have given exact version given to them by the appellants. During their cross-examination they could not be discomposed. There is nothing on record to suggest that the aforesaid witnesses are unreliable. The evidence of extra judicial confession is admissible under Section 24 Evidence Act, 1872. The Honble Apex Court in State of U.P. Vs. M.K. Anthony AIR 1985 Supreme Court 48 has held that when the evidence of friend before whom extra judicial confession was made, was found reliable and trust worthy, conviction can be based on it and no corroboration is necessary. In the instant case, the evidence of extra judicial confession is very clean, emphatic and reliable. Hence, the objection of the learned counsel for the appellants to such evidence is found baseless and unjustified.
The learned Counsels for the appellants have contended that there was no previous enmity between the appellants and the deceased and the prosecution has not disclosed any motive for committing the crime. Hence, the case is not proved against the appellants. The learned Public Prosecutor has submitted that the appellants were annoyed with the deceased and wanted to harm him. He has also submitted that the motive for the crime was the money which the deceased had taken with him for purchasing a ring for giving in Kanyadan in the marriage of the daughter of Arjun Sarpanch. We have carefully considered the above submissions. Jairam PW-12 has stated in his cross-examination that there was a dispute between Girraj and Bisawan for the last 2-3 years. This witness has also given evidence that the appellants told him about a month prior to the date of incident that they wanted to commit the murder of Girraj. Jairam PW-12 was extensively cross-examined on behalf of the appellants but there is nothing in it to discredit the aforesaid fact. Moreover, Yadram PW-13 has stated that Girraj took Rs.3000/- from him and went to Bansoor with the appellants. He has also deposed that Bisawan took out the purse from Girrajs pocket and went away. Girraj told Pooran that Bisawan has taken his purse. At this Pooran told him that the purse will be returned to him the following day. Prasadi PW-14 has stated that Girraj went with the appellants and took Rs.3000/- with him. Ram Niwas PW-16 has stated that Girraj took Rs.3000/- from Yadram and went with the appellants. He has also deposed that when he met Girraj and appellants in the marriage Girraj told him that Bisawan has taken away his purse. When he asked Girraj to return to the village he told him that as his purse is with Bisawan he will come to the village later on. Santosh PW-17 has stated that her husband took Rs.3000/- from Yadram and thereafter went with the appellants. Basanta PW-19 has stated that Girraj had Rs.3000/- with him when he went with the appellants from the village. Thus it is fully established that when Girraj, the deceased, went with the appellants he had Rs.3000/- with him. It has also come in the prosecution evidence that there was an altercation between deceased and the appellants about giving Kanyadan. The appellants proposed that they should give Rs.11/- each in Kanyadan while Girraj suggested that they should give Rs.51/- each. The money which was with Girraj when he left his village was not recovered from his clothes when his dead body was seized. From the above statements of the witnesses it is found that appellant Bisawan had taken away the purse of the deceased containing money. There is nothing on record to show that the purse was returned to the deceased as was promised by appellant Pooran. In these circumstances, it can be inferred that the appellants had motive of taking away the money which was with Girraj. Thus, it cannot be said that the prosecution has not suggested any motive on the part of the appellants for committing murder.
The learned Counsels for the appellants have strenuously contended that as there was only one injury on the body of Girraj, the deceased, the appellants cannot be held guilty for offence under Section 302 IPC and that the case will fall at the most under Section 304 IPC as they had no intention of committing culpable homicide amounting to murder. Reliance has been placed on the cases of Shaikh Majid and another Vs. State of Maharashtra and others 2008 (1) WLC (SC) Criminal 584; Laxmi Narayan & others Vs. State of Rajasthan 2008 (1) Cr. L.R. (Raj.) 810; Loona Ram and another Vs. State of Rajasthan 2008 (1) RCC 503 and Krishan Lal & others Vs. State of Rajasthan 2009 (2) RCC (Raj.) 694.
The learned Public Prosecutor has submitted that the offence against the appellants cannot be toned down because of a single injury. He has also submitted that as the dead body was decomposed before its postmortem was conducted it cannot be said that only one single injury was caused to the deceased. We have carefully examined this aspect of the matter. As per the statements of Chanda PW5, Ram Niwas PW16, Basanta PW19, they observed three injuries on different parts of the body of the deceased. Dr.Rajendra Khatri PW-5 has stated that the entire dead body was swollen and foul smell was coming from it. He has also stated that on internal examination of the body depressed fracture of tempo parietal bone was found. His statement is fully corroborated by Dr. Shubhash PW-10. The perusal of the postmortem report Ext.P11 shows that the entire body was putrefied. The cause of death was head injury followed by fracture of right tempo parietal bone leading to shock. During his cross-examination Dr. Rajendra Khatri PW-5 has stated that as the entire body was swollen and putrefied, no external injury could be seen on the body. He has also stated that no external injury was visible even at the tempo parietal bone. Dr. Shubhash PW-10 has also stated in his cross-examination that on removing skulls fractured bone of head was visible. He has also admitted that no external injury was visible even at that site. There is no eye witness of the incident and as such it cannot be affirmatively said that only one injury was caused to the deceased. The medical evidence, as stated above, also does not prove the same. Hence, authorities relied on behalf of the appellants are not applicable in the instant case and they do not help them at all. Hence, the argument of the learned counsel for the appellants cannot be accepted.
The learned counsels for the appellants have submitted that the prosecution witnesses have made improvements in their statements; hence they should not be relied upon.
The learned Public Prosecutor has submitted that there are no such improvements which make their statements unreliable. We have considered the above submissions and carefully perused the statements of witnesses whose statements recorded under Section 161 CPC have been exhibited and find that there are no contradictions in their statements recorded during trial from the statements recorded by the police during investigation. Of course, there are some omissions. The Honble Apex Court in State of U.P. (supra) has held as under:
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.
From the aforesaid discussion, we are of considered opinion that the prosecution has fully succeeded in proving offence u/s 302 IPC against the appellants. Accordingly, we are not inclined to interfere with the findings of the learned trial Court. The conviction and sentence of the appellants are maintained. The appeals are dismissed as being devoid of merits.
(S.S. KOTHARI),J. (MOHAMMAD RAFIQ),J. FRBOHRA518DBCRLAPPEAL2004.do