Rajasthan High Court - Jaipur
Phool Singh Urf Phooliya vs State Of Rajasthan Through Pp on 7 October, 2017
Author: G R Moolchandani
Bench: G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
(1) D.B. Criminal Appeal No. 851 / 2013
Phool Singh @ Phoolya @ Phoolchand S/o Amar Singh Tanwar
Rajput, R/o Motipura, P.S. Dangipura, District Jhalawar
(Rajasthan).
----Appellant
Versus
State of Rajasthan Through Public Prosecutor
----Respondent Connected With (2) D.B. Criminal Appeal No. 501 / 2013 Smt Mangibai wife of Shri Devilal, by-caste Tanwar Rajput, resident of Talai Ben Police Station Dangipura District Jhalawar at present Mogya Mohalla, Police Station Manohar Thana, District Jhalawar.
----Appellant Versus The State of Rajasthan through the P.P.
------Non Appellant (3) D.B. Criminal Appeal No. 549 / 2013 Rodu Lal @ Bhura s/o Shyam Lal, b/c Bairagi, R/o Gram Rupaheda, Police Station Manoharthana, District Jhalawar (Raj.)
----Appellant Versus State of Rajasthan through P.P.
-----Respondent _____________________________________________________ For Appellant(s) : Mr. Rajesh Choudhary For Respondent(s) : Mr. B.N. Sandu, AAG-cum-Public Prosecutor with Mr. Pankaj Sisodia Mr. R.S. Shekhawat, Public Prosecutor For Complainant: None present _____________________________________________________ (2 of 14) [ CRLA-851/2013] HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment Per: Kanwaljit Singh Ahluwalia, J. (Oral) 07/10/2017
1. Rodu Lal @ Bhura s/o Shyam Lal, resident of village Rupaheda, Smt. Mangibai w/o Shri Devilal, resident of Talai Ben and Phool Singh @ Phoolya @ Phoolchand son of Amar Singh, resident of Motipura were tried by the Court of Additional Sessions Judge No.6, Kota in Sessions Case No.10/11 in a case arising out of FIR No.616/2010, registered at Police Station Vigyan Nagar, Kota for offence under Section 302, 201, 34 IPC.
2. The case of the prosecution is that all the above-said three accused on the intervening night of 25 th and 26th October, 2010, in Alfa Plantation Forest near National Highway No.12, Kewal Nagar, Kota, committed murder of Ramraj Nagar and thus committed offence punishable under Section 302 read with 120B IPC. It is the further case of the prosecution that accused disfigured the face of the dead body to cause disappearance of the evidence and thereby committed the offence under Section 201 read with Section 120B IPC. Motorcycle of deceased Ramraj, his mobile and tiffin were also recovered from the accused and hence prosecution had pressed into service the charge under Section 397/120B IPC. The trial Judge vide impugned judgment dated 26.06.2013 held all the three appellants guilty of offence under Sections 302, 201 and 379 IPC. However they were acquitted of (3 of 14) [ CRLA-851/2013] offence under Section 397 read with Section 120B IPC. Having convicted the appellants for above-said offences the trial Judge vide separate order of even date sentenced the appellants as under:-
Conviction under Section Sentence imposed 302 IPC Life imprisonment with fine of Rs.1000/- each, in default of payment of fine to further undergo one months' additional simple imprisonment.
201 IPC Rigorous imprisonment for three years with fine of Rs.500/- each, in default of payment of fine to further undergo 15 days additional simple imprisonment.
379 IPC Rigorous imprisonment for one year
3. Aggrieved against the conviction and sentence, Smt. Mangibai instituted D.B. Criminal Appeal No.501/2013, Rodu Lal @ Bhura preferred D.B. Criminal Appeal No.549/2013 through their Counsel and Phool Singh @ Phoolya filed D.B. Criminal Appeal No.851/2013 through jail. Shri Rajesh Choudhary, Advocate has been appointed as a Counsel for Phool Singh @ Phoolya by the Rajasthan High Court Legal Service Committee. The prosecution to secure the conviction of the appellants examined 21 witnesses.
Prahlad Pahadia (PW-1) on 26.10.2010 was Sarpanch of Gram Panchayat Alania. The witness stated that on the said date under the NREGA Scheme work of Alfa Plantation was undertaken. The labourers deployed under the NREGA Scheme informed him that near the Alfa Plantation a dead body is lying. The witness stated (4 of 14) [ CRLA-851/2013] that the information was already received by the Police Post Jagpura. When he reached at the place the police was already present there and in his presence the police had taken photographs of the spot and dead body was taken into poseession by police vide Memo Exhibit P-1. They prepared the description of the dead body vide Memo Exhibit P-2. They had also prepared Site Plan Exhibit P3 and had lifted blood stained soil and simple soil vide Memo Exhibit P-4 and Exhibit P-5 respectively. The witness stated that the police had also lifted pebbles/small stones vide Memo Exhibit P-6. Near the spot one helmet was lying which was also stained with blood and same was taken into possession vide memo Exhibit P-7. From the spot one 'Chashma', one pen and one watch were also taken into possession by the police vide Memo Exhibit P-8. The witness stated that he attested the 'Panchayatnama' Exhibit P-9.
4. ASI Babulal Meena s/o Bakhtawar Singh (PW-12) deposed that on 26.10.2010 he was in-charge of Police Post Jagpura falling within the jurisdiction of Police Station Vigyan Nagar, Kota. On that day at 10.15 AM he received an information on his mobile from Prahlad Pahadia, Sarpanch that a dead body is lying near the Alfa Plantation undertaken on National Highway No.12. He went there and saw an unidentified dead body.
5. Thus it is apparent that it is not a case of direct evidence. None has witnessed the occurrence and the prosecution to secure the conviction of the appellants has relied upon circumstantial evidence.
(5 of 14) [ CRLA-851/2013]
6. Before we note the circumstances, it will be necessary for us to give brief gist of the prosecution evidence. Constable Hoshiyar Singh (PW-2) stated that on 26.10.2010 he was posted as a Constable at Police Station Jagpura under Police Station Vigyan Nagar. He had gone at the spot and in his presence SHO Sanjay Sharma(PW-19) arrived at the spot. This witness has given description of the spot.
7. Narendra (PW-3) deposed that on 24.10.2010 Rodulal @ Bhura had made a telephonic call to him and had stated that he is in need of money. The witness stated that except this no other conversation took place and at that time his friend Ramraj also came. The witness stated that meanwhile Rodulal also came and they took drinks. After some time Rodulal left the spot and Ramraj had also gone. Rodulal and Ramraj both left his house on motorcycle of Ramraj, deceased. The witness stated that on two following days he had a conversation with Rodulal on mobile. He was also having telephonic conversation with Ramraj. This witness was declared hostile to the prosecution. He resiled from the statement recorded by the police under Section 161 Cr.P.C. (Exhibit P-10).
8. Kamal (PW-4) stated that he used to ply auto in Kota. He had no telephonic talks with Phool Singh. This witness was also declared hostile to the prosecution. Lekhraj (PW-5) stated that on 24.10.2010 he and Ramraj both had visited Mela (fair). Ramraj informed that he is having one friend Narendra. His two friends and one aunty had come. This witness stated that Ramraj stated (6 of 14) [ CRLA-851/2013] to the witness that he will take them to his room. The witness stated that on 25.10.2010 he made a telephonic call to Ramraj who informed that his two friends visited him and he disclosed their names as Phool singh and Rodulal. He further disclosed that they were accompanied by one aunty.
9. Dharamraj Nagar (PW-6) stated that Ramraj, deceased was his brother and on 25.10.2010 he had gone to attend his duties at Shree Ram Rayons Factory on a motorcycle and at that time he was having a tiffin, ATM card, purse and mobile. The witness had also enquired from Lekhraj (PW-5), a friend of deceased Ramraj Nagar. Lekhraj (PW-5) had informed this witness that Ramraj had told him to go to Dashera festival. Ram Prasad (PW-7) stated that on 26.10.2010 at about 12.00 noon people had gathered near a dead body. This witness has proved the memo regarding recovery from spot which include pebbles, blood stained soil, simple soil and also the description of the dead body, Panchayatnam etc.
10. Constable Sitaram (PW-8) stated that on 26.10.2010 in his presence SHO Sanjay Sharma (PW-19) had effected the arrest of Mangi Bai on 28.10.2010 and from her possession on search he recovered the driving license of Ramraj, deceased. vide Memo Exhibit P-12. The witness further stated that on 29.10.2010 accused Rodulal and Mangi Bai had taken the police party to the spot where crime was committed (Exhibit P-13). The witness further stated that on 20.12.2010 on the information given by accused Phool Singh, the police party along with Phool Singh went (7 of 14) [ CRLA-851/2013] to his village Motipura and from his house got recovered one spice mobile and one steel tiffin vide Exhibit P-20 belonging to the deceased.
11. Arun Sharma (PW-9) had performed autopsy on the dead body of deceased Ramraj (Exhibit P-22). We need not notice contents of the same as admittedly Ramraj died because of violence.
12. S.I. Babulal Meena (PW-10) in Court stated that he had gone for the search of accused Phool Singh, Rodulal and Mangi Bai. Rodulal and Mangi Bai were seen coming on a motorcycle. He arrested them and brought along with him to the police station. The SHO effected the arrest in his presence and in presence of Khemchand. This witness has proved Exhibit P-23, arrest memo of accused Rodulal and Exhibit P-24, arrest memo of accused Mangi Bai. The witness stated that on the information of accused Rodulal under Section 27 of the Evidence Act (Exhibit P-60), from his house he got recovered one blood stained pant (Exhibit P-54) and one identity card of deceased Ramraj.
13. ASI Munir Khan (PW-11) admits that they visited the spot and lifted marks of tyre and footprints from the spot. We may notice that Munir Khan's evidence is regarding footprints and marks of tyre of the motorcycle of the deceased at the spot. Head Constable Ajay Pal Singh (PW-13) stated that on 26.10.2010 he was posted as Malkhana In-charge at Police Station Vigyan Nagar, Kota. On that day CI Sanjay Sharma had deposited the clothes of deceased Ramraj, blood stained soil, stones and helmet lifted from (8 of 14) [ CRLA-851/2013] the spot in the Malkhana. On 28.10.2010, he had deposited one sealed packet containing driving license of deceased Ramraj recovered from Mangi Bai. On 29.10.2010 he had deposited the marks of tyre and footprints of left foot lifted from the spot in the Malkhana. The witness has also deposed regarding deposition of various other articles recovered from the accused in the Malkhana.
14. Constable Khemchand (PW-14) stated that on 28.10.2010 in his presence I.O./SHO Sanjay Sharma (PW-19) had arrested Rodulal and Mangi Bai vide memo of arrest Exhibit P-23 and 24 respectively. From the person of accused Rodulal, his one pair of shoes which was having blood stains was recovered vide Memo Exhibit P-25. Recovery of motorcycle was also effected from accused Rodulal vide Memo Exhibit P-26. Constable Jagdish Prasad (PW-15) stated that he had taken the articles deposited with Head Constable Ajay Pal Singh (PW-13) for depositing the same in Forensic Science Laboratory, Kota. Nisar Khan (PW-16) stated that on 26.10.2010 he was posted as Police Photographer at Police Control Room, Kota. The witness stated that with his digital camera he had taken the photographs of the spot and the dead body.
15. Purshottam Sharma (PW-17) stated that on 26.10.2010 he was posted as Head Constable in MOB Branch, Office of Superintendent of Police, Kota City. The witness stated that he was called at the spot to take the footprints which he gathered along with marks of tyre of motorcycle. S.I. Umrao Singh (PW-18) stated that on 26.10.2010 Constable Sitaram brought the written (9 of 14) [ CRLA-851/2013] report and on basis of it he had registered the formal FIR. SHO Sanjay Sharma (PW19) being I.O. proved various facets of the investigation. K.R.K. Raju (PW-20) stated that he was posted in the Personal Department of the Shree Ram Rayons Factory. This witness stated that on 25.10.2010 Ramraj reported for duty at 9.25 AM and left the factory at 6.03 PM. Aftab Ali (PW-21) stated that on 26.10.2010 he was posted in MBS Hospital and in his presence Surajmal Nagar and Dharamraj Nagar had identified the dead body to be of Ramraj Nagar.
16. From the entire prosecution evidence, following incriminating circumstances relied upon by the prosecution have emerged:-
(a) Narendra (PW-3) who was declared hostile has stated that on 24.10.2010 accused Rodulal and the deceased at his house had taken drinks. Thereafter Ramraj and Rodulal had left on the motorcycle and on the said date on telephone accused Rodulal had expressed need of money. Thus, this is relied by the prosecution as evidence of last seen and motive.
(b) Lekhraj (PW-5) stated that he had received a telephonic information from the deceased on 25.10.2010 wherein he stated that two friends of Narendra, namely Phool Singh and Rodulal with one aunty have come to meet him, therefore, he is unable to visit him. This is being relied by the prosecution as evidence of last heard.
(10 of 14) [ CRLA-851/2013]
(c) Evidence of the foot mould lifted from the spot and taking into possession the pair of shoes of accused Rodulal, it is the case of the prosecution that shoes of the accused sent as specimen tallied with the foot mould lifted from the spot. It is further case of the prosecution that the motorcycle recovered from Rodulal and Mangi Bai belonging to the deceased was also sent to Forensic Science Laboratory and the tyre marks of the same tallied with the marks of the tyre lifted from the spot by way of mould.
(d) Recovery of blood stained pant and shoes from accused Rodulal has been relied to say that accused Rodulal had participated in the crime. From appellant Phool Singh upon his disclosure Exhibit P-61, vide Memo Exhibit P-20, tiffin and mobile of the deceased have been recovered.
(e) It is further case of the prosecution that Phool Singh suffered a disclosure vide Exhibit P-62 and got the spot identified vide Memo Exhibit P19.
(f) Recovery of motorcycle and driving license of deceased from accused Rodulal and Mangi Bai respectively.
17. So far as recovery of motorcycle and driving license of deceased from accused Mangi Bai are concerned, they stand demolished from the cross examination of S.I. Babulal Meena s/o Bhanwar Lal (PW-10), who stated as under:-
(11 of 14) [ CRLA-851/2013] ";g lgh gS fd 26-10-2010 dks eSa o vU; iqfyldehZ vfHk;qDr jksMwyky o vfHk;qDr ekaxhckbZ dks lUnsgkLin fLFkfr esa ys dj Fkkus ij vk,] ckcr~ dksbZ jiV jkstukepk i=koyh esa layXu ugha gSaA eSus tc jksMwyky o ekaxhckbZ dks eksVjlkbZfdy ij idM+k] rc iwNrkN dh FkhA eSaus idMs x, nksuksa vfHk;qDrksa dh ryk'kh ugh yh FkhA ge eqyfteku dks izkbZosV okgu ls ysdj vk, FksA eksVj lkbZfdy gekjs tkIrs dk ,d lnL; ftldk uke gksf'k;kjflag dkfu- gS] ysdj ds vk;k FkkA eqyfteku dks lqcg 6 cts nLr;kc fd;k FkkA ml le; jksMwyky us isaV&'kVZ igu j[kh Fkh ,oa twrs ifgu j[ks FksA isaV dk jax eq>s /;ku ugha gSA twrs dh dEiuh dk eq>as /;ku ugh gSA twrs dk dyj eq>s ekywe ugh gSA ;g lgh gS fd tc vfHk;qDr dks fxj¶rkj fd;k tkrk gS rc mldh tek&ryk'kh yh tkrh gSA ;g lgh gS fd tek&ryk'kh esa tIr oLrqvksa dk vadu QnZ esa fd;k tkrk gSA"
18. In the present case, occurrence has taken place on the intervening night of 25th and 26th October, 2010. From above portion of the cross examination of S.I. Babulal Meena (PW-10) reproduced above, it is apparent that in the morning of 26.10.2010 both Rodulal and Mangi Bai were apprehended. They were brought to police station along with the motor cycle and at that time Rodulal was wearing pant, shirt and shoes. Curiously enough the police has resorted to a padding and have shown in the record, the arrest of Rodulal vide Arrest Memo Exhibit P-23 on 28.10.2010 and Mangi Bai vide Arrest Memo Exhibit P-24 on 28.10.2010. Thus for two days Rodulal and Mangi Bai were kept at police station. Their arrest memo was prepared two days later and that story that at the time of their arrest they were coming on a motorcycle and from the personal search of Mangi Bai driving license of the deceased was recovered fall on the ground. Similarly the recovery of blood stained shoes also fall on the ground. If motorcycle was with the police and thereafter foot mould and tyre marks were lifted from the spot, their sending of the tyre and the (12 of 14) [ CRLA-851/2013] shoes to the FSL to tally with the marks of tyre lifted from the spot and foot mould prepared from the spot will not advance the case of the prosecution. It is a case of police padding. Furthermore similar shoes and tyres are manufactured at mass level. There is nothing to pinpoint that some specific marks were there to connect the same with recovery allegedly effected.
19. Hence we shall exclude the evidence of tallying of foot mould with the shoes of the accused and tallying of tyre marks with the tyre of the motorcycle as it is not safe to rely upon them because of the padding of the police to take the accused into police station on 26.10.2010, on the date of occurrence, and effect their arrest in record two days later. All recoveries effected from Rodulal and Mangi Bai are to be excluded from consideration.
20. Now we come to the purported evidence of last heard. Lekhraj (PW-5) has stated that on 25.10.2010 he had called Ramraj. Ramraj informed that two friends of Narendra, namely Rodulal and Phool Singh along with one aunty had come to meet him, therefore, he could not visit him. A conversation on a telephone purportedly by a deceased to the witness cannot be construed as an evidence of last seen. It is best evidence of last heard. Lekhraj had not seen the accused with the deceased. No authenticity can be granted to the telephonic conversation. We have already noticed that as per S.I. Babulal Meena (PW-10), Rodulal and Mangi Bai were in custody of police from 26.10.2010. Occurrence had also taken place on 26.10.2010. Arrest memo of Rodulal and Mangi Bai purportedly were prepared on 28.10.2010, (13 of 14) [ CRLA-851/2013] but statement of Lekhraj Exhibit D1 under Section 161 Cr.P.C. was recorded by the police on 30.10.2010. Had Lekhraj informed on the telephone, he ought to have narrated the same to the police on 26.10.2010 itself. Thus, we cannot rule out that the police which had resorted to recoveries as a padding had introduced Lekhraj as a witness to the telephonic conversation. We cannot rely upon this piece of evidence against the accused.
21. Now we come to the identification of the spot at the behest of the accused after their disclosure was recorded. It is well settled legal position of law that a fact which is in the knowledge of the police requires no disclosure. The dead body was recovered from the spot and recoveries were effected from the spot and panchayatnama was also prepared of the spot on 26.10.2010. Thus there was no necessity to take disclosure of the accused and get the spot identified from them. Therefore, identification of the spot in pursuance of disclosure cannot be considered as incriminating circumstance and same is excluded from consideration.
22. Mere recoveries of mobile and tiffin from accused Phool Singh will not complete the chain of circumstances to arrive at the conclusion that offence has been committed by the accused. In the present case the prosecution miserably failed to complete the chain of circumstances to arrive at the conclusion that the offence has been committed by the appellants and none else. Thus there are many loopholes and lacuna in the prosecution case. Chinks in the prosecution case lead to a conclusion that the prosecution (14 of 14) [ CRLA-851/2013] could not establish its case to prove that the offence has been committed by the appellants.
23. Consequently, all the three appeals are accepted. The conviction and sentence of all the three appellants is set aside. They are acquitted of the charges. We find that during pendency of the appeals the appellants were ordered to be released on bail. Hence the bail bonds and surety bonds furnished by them are discharged. The trial Court shall call Phool Singh @ Phoolya @ Phoolchand, Smt. Mangi Bai and Rodulal @ Bhura to comply with the provisions of Section 437-A of the Code of Criminal Procedure. (G R MOOLCHANDANI)J. (KANWALJIT SINGH AHLUWALIA)J. KKC/4 to 6