Rajasthan High Court - Jodhpur
Prithvi Raj Alias Prithvi Nai vs State on 31 March, 2009
Author: N.P.Gupta
Bench: N.P.Gupta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
PRITHVI RAJ ALIAS PRITHVI NAI V/S The State of Raj.
CRIMINAL APPEAL No. 852 of 2002
Date of Judgment : 31st March, 2009
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI C M TOTLA,J.
Mr. KR BHATI, for the appellant.
Mr. AR NIKUB, PP for the respondent.
BY THE COURT: (Per Hon'ble Gupta, J.)
By this appeal, the appellant seeks to challenge the judgment passed by the learned Addl. Sessions Judge (F.T.) Hanumangarh dt. 27.8.2002, convicting the appellant for the offence under Section 302 and 201 IPC, and sentencing him for the offence under Section 302 IPC with imprisonment for life along with fine of Rs. 5000/-, in default to undergo one month's simple imprisonment, and for the offence under Section 201 IPC sentencing him to three years rigorous imprisonment, and a fine of Rs. 5000/-, in default to undergo one month's simple imprisonment.
The necessary facts are, that on 12.12.2001 one Asharfi Das lodged a written report Ex.P-1 at Police Station Hanumangarh Town, alleging interalia, that he is 2 working as night watchman on the Service Station, on Hanumangarh Town - Rawatsar Road, which is near village Kohla. With this he alleged, that in the night at about 9.30 he was asleep in the room, in the back side of room there was a big noise. Thereupon he got up, and looked outside the window. He saw that one man, wearing white Pajama and black Kurta, coming from backside of the service station, was going towards the road. He saw backside of the man. The man was bare headed. Then, he lighted chimney and opened the gate, but he did not find the man. Then, he went in the backside room, which does not have any doors, and found, that one person was lying upside down, with left KARVAT, and folded knees. He called to wake him up, but there was no response. Then, he called the neighbouring hotelwala Bhoop Singh, and neighbouring Soap Factory owner, and saw, that the man was wearing white shirt, white Pajama, one Baniyan, printed underwear, and red colour sleeveless sweater. A blanket was lying on the feet, and he was aged about 26 years, he looked like a labour. Wrist- watch was there on the left hand, and in the pocket of the shirt, there was a matchbox, Bidis, a tube of lime, while right wrist was broken, and was bleeding. In the head also, towards right, there was a deep wound below the right eye, there was bleeding injury, and from the mouth also some blood was coming out, and there were numerous injuries on the body. One pair of sleeper were lying a bit away from the dead body, something like one quarter of liquor was also visible there. From this he believed, that some unknown person has killed the man, and has put him in the rear side room of the service station. Then, he went to locality, and narrated the things to Ramchander Das, Mangal 3 Das and Tileshwar Das. Out of them Ramchander Das and Mangal Das remained there, and the informant with Tileshwar Das submitted report.
On this report a case for the offence under Section 302 and 201 IPC was registered, and investigation was conducted. After completing investigation, charge sheet was filed against three persons, being Vimla Devi, her mother Savitri Devi, and the appellant, for the offences under Section 120B, 302 and 201 IPC, as it was concluded during investigation, that the accused Vimla was having illicit relations with the appellant, and on that count the three accused conspired, and got the deceased Shanker murdered, who is the husband of accused Vimla.
The case was committed same day to the Court of Sessions Judge, Hanumangarh, from which it was transferred to the trial court. The trial court framed charges for the aforesaid three offences, against all the three accused persons, who obviously were denied by the accused. During trial the prosecution examined 16 witnesses, and tendered in evidence 57 documents. All the three accused denied the charges, and claimed to have been falsely implicated. In defence three witnesses were examined, roadways ticket, the police statement of Ramchander Soni, and the police statement of Subhash Soni were tendered in evidence, as Ex.D-1, Ex.D-2 and Ex.D-3 respectively. After so completing the trial, hearing the arguments, the learned trial court found the appellant only guilty, against whom the offence was brought home for offence under Section 302 and 201 IPC. However it was found, that there is no evidence on record 4 to show, that any conspiracy was hatched between all the three accused persons, in furtherance whereof offence may have been committed, and there is no evidence to show, that when the appellant went outside the house with the deceased, the other two accused persons also accompanied them, and there was no recovery of any incriminating article from them, so as to connect them with the offence, and no charge of conspiracy under Section 120B is proved by the prosecution against them. The learned trial court also found, that the prosecution has failed to prove charge under Section 302 and 201 IPC as well, against the accused Vimla Devi and Savitri Devi, while the learned trial court has convicted and sentenced the appellant as above.
We have heard learned counsel for the appellant, and the learned Public Prosecutor, and have also gone through the record.
The present is a case, which rests only on circumstantial evidence, as obviously there is no eye witnesses, in the case. The circumstances relied upon by the learned trial court are; (i), that the accused and the deceased were last seen together, (ii), the other circumstances relied upon is, that during investigation the accused pointed out the place of incident, and pursuant to the information furnished by him under Section 27 of the Evidence Act got recovered the weapon of offence, being Kassi etc., and the garments of the accused, Kassi, and that of the deceased were found stained with human blood of same group-A. The third circumstance relied upon is motive. 5
Obviously, since the case rests on circumstantial evidence, we proceed to examine each of the circumstances, as to how, and to what extent each of them is proved, and what are consequences flowing therefrom.
The first circumstance in this regard is, the deceased having been last seen together in the company of the accused. Before dealing with this circumstance, we may narrate here, that the deceased was resident of Bhuranpura Police Station Tibi. We get it from the statements of P.W. 12 Ramchander, P.W. 15 Sharvan, and P.W. 16 Jagdish; inasmuch as P.W. 12 has deposed that the deceased was his mother's sister's son, and was living in Bhuranpura, who was married in Ganeshgarh, with the accused Vimla Devi. Similarly P.W. 15 Sharvan has stated that the deceased was his sister in law's son, and was living in Bhuranpura, and was married in Ganeshgarh. Similarly P.W. 16 Jagdish is the real brother of the deceased, who has deposed that they were five brothers, and they are living in Bhuranpura, while Shanker was married in Ganeshgarh. The accused is resident of yet another village Jorkiya Tehsil Padampur.
The deceased and the accused Vimla had a son Bhimsen aged 9 years, and a still younger daughter from the wedlock. The son is the only witness of last seen. He was examined as P.W. 5. Of course, the prosecution got him declared hostile, but then, we venture to look at his evidence. He has given out his age to be 11 years. He was put preliminary questions by the learned trial court, like games, books, cricket team etc., and found that the witness understands everything well. Then his statements were 6 recorded. He has deposed, that he knows Prithvi Nai (appellant) who was visiting their house. He is a resident of Jorkiya. The maternal grand father of the witness is Chetram, who lives at Ganeshgarh, his maternal grand mother is Savitri, while his mother is Vimla. Then, he deposed that Prithvi does not do any work, he took the witness for getting him employed on a restaurant, but the witness did not stay on the hotel. Then, the accused brought the witness to his own house, and then left the witness at the maternal grand father's house of the witness. Then, the witness deposed, that the deceased had also come to Ganeshgarh on the fateful day, then the accused asked his father to accompany outside, whereupon father of the witness went with him, and thereafter he does not know as to whether Prithvi returned, or not. Then, he stated that his father did not return. That is all he knows. He identified all the accused present in the Court, and deposed, that his father had taken meals at the house of his maternal grand mother, and his maternal grand mother did not tell him anything, and that his father is no more. At this stage the witness was got declared hostile by the prosecution. Then, he was confronted with the portion A to B, and C to D of his police statement Ex.P-21, and it was given out, that he did not give that statement. He admitted, that outside his house there is a shop of telephone, where accused had gone to make a telephone call. It was stated that the accused Prithvi did not give any money for bringing anything, then the witness was asked, that his mother mostly lived with his maternal grand mother, whereupon witness kept silent. Then, he was asked about deceased consuming alcohol, whereupon also the 7 witness kept silent. Then, he stated that he has one sister who lives in Bhuranpura. Then, he was asked that his maternal grand mother gave money to the accused Prithvi, whereupon also the accused kept silent. Then, he stated that elder brother of his father is Pusalal, who lives in Ratanpura, Ramchander lives in Kishanpura, and he does not know as to whether Ramchander had come to Ganeshgarh. He stated that there was no quarrel between his father and his mother, and his father did not use to give beating to the mother. He has denied that he is giving false statement. Then, we may refer to his police statement Ex.P-21 also, with which he was confronted, to find out, as to what improvement he is making, and portion A to B thereof is;
"मर न न व मर म न पथव क क ठ म बठ रख थ और कह आज शकर क दख ल ज उस क र द क ट द and the portion C to D is "पथव न ई मर न न क घर स मर न न व म स प#स लकर गय । रपय ककतन ददय मझ + पत नह Thus it appears, that the witness has disowned the portion of the statement, which are related to involvement of his maternal grand mother. Obviously, learned trial court has already acquitted the maternal grand mother, being the accused Savitri Devi. The other part of the statement of Ex.P-21 with which he was not confronted, we are not supposed to see, and therefore, we decline to see. Thus the fact remains, that of course the witness has been declared hostile, but he has been got declared hostile because he did not support the earlier version of involvement of Savitri Devi, but then, so far as his intrinsic evidence, about accused having been last seen in the company of the deceased together, that has not been shaken at all, in any manner, whatever, by the defence.8
The intrinsic evidence of this witness P.W. 5 does find support from the other circumstances, and evidence also, comprising of P.W. 15 Sharvan, P.W. 10 Ramkumar, P.W. 14 Om Prakash, and P.W. 11 Amilal, so also from Ex. P-33, & Ex.P-34. According to P.W. 15 Sharvan, the deceased had come to him before two days of the incident, and demanded money for fare for bus journey, as the deceased wanted to go to his in laws' place. The witness paid money to him, and the deceased told, that he would please the wife and bring her, and that she is carrying illicit relations with the accused appellant Prithvi. Then, he learnt from Krishan that the deceased is dead. Thereupon he went on the spot where he did not find, and then he went to hospital, and found the deceased lying in mortuary. Then, P.W. 10 Ram Kumar has deposed, that on 10.12.2001, from 8 A.M. to 5 P.M., he was booking clerk, and on duty at Booking Window, Hanumangarh Town. On that day at 2.30 P.M. Bus No.95 had gone towards Kenchiya. Driver whereof was Virendra Singh, and conductor was Om Prakash. Four tickets were issued for Kenchia, being ticket no. 002491 to 002494, for which necessary entry was made in D.S.A., copy whereof was given to the conductor. He has proved that tickets Ex.P-33 was issued by him for Kenchia, entry in which regard is made in D.S.A., being Ex.P-34, which bears his signature. This witness has not been cross-examined at all. Then, P.W. 14 Om Prakash is conductor of said bus, and has deposed, that along with him the driver was Binder Singh. The bus was scheduled to go from Hanumangarh to Karanpur via Kenchi, Goluwala, Padampur, and at 2.30 the bus left Hanumangarh. The Booking Clerk was Ram Kumar. Smaller D.S.A. was prepared, and bus was seen off. According to D.S.A., four 9 passengers had gone towards Kenchiya, all of them were carrying tickets. He has also deposed, that passenger possessing ticket from 002492 was in his bus, and alighted at Kenchiya. He has proved the ticket Ex.P-33, and D.S.A. Ex.P-34, and has proved entry made therein. In cross- examination he has stated, that he was not shown the photos of the passengers, and does not know who was travelling on this ticket no. 002492. Then we may refer to Ex.P-8, which shows, that in the pocket of Baniyan, on some white paper address of some Baba was written, one roadways ticket no. 521096112, one slip Rawatsar bill no. 311777 was written, one slip whereon Bhuranpura 84509 was written, then one ticket of Aman Travels, and one slip on which 682122 was written, and one ticket of roadways for journey from Hanumangarh to Kenchiya bearing ticket no. 002492 were found, which were seized by the police. This memo has been proved by Investigating Officer, P.W. 11 Ami Lal, who has proved his signatures thereon, as E to F. Then, from out of the Motbirs, Tileshwar Das and Subhash have been produced as P.W. 2 and 3 respectively, who have proved their signatures A to B and C to D respectively thereon. Thus, this evidence does clearly establish, chain of events, and facts, showing, that on 10.12.2001 the deceased had gone to Ganeshgarh, and on 11th in the night, he was found dead. Thus, the evidence of P.W. 5 stands fully corroborated, and the circumstance being, the deceased having been last seen in the company of the deceased, soon before the incident, is clearly established.
We may also observe at this place, that all said and done, accused Vimla is also his mother, and may be, 10 that he might be saving his maternal grand mother, but then, there is no reason whatever to disbelieve this evidence so far as it implicate the accused appellant, by proving, that the deceased was last seen in the company of the accused. Obviously, this is an incriminating circumstance. A look at the statement of the accused recorded under Section 313 shows, that he has stated therein that he does not know Bhimsen, and Bhimsen is telling a lie. Thus, the circumstance has not been satisfactorily explained by the accused either.
Coming to the next circumstances, which is rather bundle of circumstances, formulated by the learned trial court, which can be broken up by us, as, being (i) the accused identifying the place of incident (ii) accused voluntarily giving information under Section 27 of the Evidence Act, and pursuant thereto getting recovered the weapon of offence, and (iii) the clothes of the accused and the weapon of offence were found stained with human blood.
Taking the first circumstance about the accused identifying the place of incident, we find, that the accused was arrested on 17.12.2001, and the arrest memo Ex. P-24 is dt. 17.12.2001, and information recorded under Section 27 Evidence Act is Ex.P-38, which has been proved by the I.O. P.W. 11 Ami Lal, who has proved his signatures C to D, and the signature of the accused being E to F, and the fact disclosed being A to B, and the look at that portion A to B shows, that he is prepared to show the place, where he had put the dead body. Then, Ex.P-39 is the site plan of the place identified by the accused. Site 11 Inspection Note is Ex.P-39A. According to which, he had shown place A, to be the place, where the murder was committed, and the place B, to be the place, where he had placed the dead body, and left away. According to Ex.P-39A, at place A, many people had defecated, and fickle matter is lying, many persons had passed through, then by removing the top soil, blood stained soil was shown, which was seized vide memo Ex.P-50. This circumstance cannot be relied upon as an incriminating circumstance, inasmuch as the dead body was already noticed by Asharfi Das, before lodging the report, and therefore, there was nothing to be discovered again, as a fact discovered consequent upon information given by the accused. So far as the purported identification of place, being point A, where the deceased is said to have murdered is concerned, apart from the fact, that we have our own doubt, as to whether that would constitute an incriminating circumstance, or not, in the present case, as, in that regard there is no information at all given by the appellant under section 27 Evidence Act, therefore, this circumstance is simply required to be ignored. Then, the second circumstance, is the recovery of weapon of offence. In this regard the information memo is Ex.P-41. This is dated 19.12.2001 at 4.10 P.M., informing that he has concealed the Kassi, under the bushes near the place of incident itself. This memo has been proved by P.W. 11 Ami Lal, who has proved his signatures C to D, and signature of the accused E to F, and the admissible portion of the information being A to B. The memo about the recovery, affected pursuant thereto is Ex.P-42. The Kassi was seized, and it was found to be stained with blood, having sharp edges, and the width of it was 9 1/2", the 12 length being 9 3/4". It is having handle of 3 ft. The handle is having fresh crack, at the place where it joins Kassi. This memo has also been proved by I.O. P.W. 11 Ami Lal, who has proved his signatures A to B, and has proved the signatures of the accused C to D, while the Motbirs Ramchander and Subhash being P.W. 12 and P.W.3, have proved this memo, who have proved their respective signatures, being E to F and G to H. Their evidence has not been shattered in cross-examination at all. Then, a look at Ex.P-48, the F.S.L. Report shows, that this Kassi has been found stained with human blood of B-Group. Necessary linking evidence about the seals of Kassi remained intact from the time of seizure till it reached the Forensic Science Laboratory is very much there, and is un-shattered which we need not catalogue in greater detail. We may simply catalogue evidence in this regard, being P.W. 13 Ram Pratap, P.W. 7 Shambhu Dayal, P.W. 8 Balwant Ram, P.W.9 Sher Mohd. and P.W. 11. Ami Lal, apart from the documentary evidence produced in this regard, being Ex.P-24, Ex.P-25, Ex.P-26, Ex.P-27, Ex.P-28, Ex.P-29, Ex.P-30, Ex.P-31, and Ex.P-32. Thus, in our view, this circumstance is clearly established. Obviously, with regard to this circumstance, the entire evidence has been put to the accused in his statement under Section 313, and he has adopted the stand of denial only, or has stated ignorance. Thus, it is not explained, as to how the blood of the same group, as that of the deceased, happened to come on Kassi, which was recovered on the information, and at the instance of the accused, soon after his arrest.
Then, coming to the third circumstance viz. 13 garments of the accused were found to be stained with blood of human origin, of same group-A. In this regard the material comprises of information memo Ex.P-44. This is dated 20.12.2001 at 9.15 A.M., to the effect, that he has concealed his wearing apparels in the Kohla Farm, which he is prepared to get recovered. Then, pursuant to this information, recovery has been effected vide Ex.P-45. From a look at Ex.P-45 it shows, that the accused excavated one feet deep pit, and took out a plastic bag, which contained one white shirt, one white pant of terry-cot, one black jacket. On the front side of this jacket, there were blood stains, and on the backside also some stains were visible, but on account of dark colour of jacket, they could not be properly deciphered, then on the white shirt there was blood on both sides of collar. Then, the pant was having blood stains on both the legs, in front side, as well as back side. These articles were duly seized, and sealed. The memo Ex.P-44 has been proved by P.W. 11 Ami Lal, who has proved his signatures C to D, and that of the accused being E to F, and information part A to B, and Ex.P-45 has been proved by P.W.11 Ami Lal, P.W. 3 Subhash Chandra, P.W. 12 Ram Chander, who have proved their signatures G to H and E to F respectively. The Investigating Officer has also proved signatures of the accused being C to D. A look at Ex.P-48 would show, that on all the three articles human blood was found, and on shirt marked as item no. 11 human blood of A Group was found. The evidence catalogued above does also prove, that the prosecution has led sufficient, and reliable evidence, with regard to seals of these articles also remaining intact from the time of seizure, till their reaching the Forensic Science Laboratory. In the 14 statement under Section 313 Cr.P.C., the accused has not offered any explanation whatever, much less satisfactory, with regard to these circumstances either. Then, from Ex.P- 7 it is clear, that the blood stained clothes of the deceased were taken into possession by the police. This memo has been proved by Investigating Officer P.W. 11 Ami Lal, P.W. 3 Subhash and P.W. 1 Asharfi Das, who has proved their respective signatures being A to B, C to D and thumb mark of Asharfi Das at point Y. Ex.P-48 shows, that on the garments which were marked by Forensic Science Laboratory as Ex. Nos. 3, 4, 5, 6, and 7, blood of human origin was found, and the Ex. Nos. 3, 4, and 6 being the shirt, Pajama and the Baniyan of the deceased were found to be stained with blood of human origin, of A Group. Necessary linking evidence about the seals of clothes remained intact from the time of seizure till it reached the Forensic Science Laboratory is very much there, and is un-shattered, which we need not again catalogue in greater detail. Obviously, with regard to this circumstance also, the entire evidence has been put to the accused in his statement under Section 313, and he has adopted the stand of denial only, or has stated ignorance. Thus, it is not explained as to how the blood of the same group as that of the deceased happened to come on clothes of the accused, which was recovered on the information, and at the instance of the accused, soon after his arrest. Thus, it is clear that this circumstance also is clearly proved to be an incriminating circumstance, and has been duly proved by the legally reliable evidence produced by the prosecution.
The third major circumstance, relied upon by the 15 learned trial court, is about motive, being that the accused appellant was having illicit relations with the accused Vimla. In this regard, the prosecution has produced three witnesses P.W. 12 Ramchander, P.W. 15 Sharvan, and P.W. 16 Jagdish. A look at the statement of P.W. 12 Ramchander shows, that he has deposed that the deceased was his mother's sister's son, who was living in Bhuranpura, and was married in Ganeshgarh, with Vimla some 10-12 years back, who has been identified to be present in the Court, and has stated that she was scarcely coming to the in-laws house. He has then stated that the relations of the couple being not cordial, Panchayat was convened, and at that time he attended the same, as he went to attend some marriage in Meghwal community, and at that time he advanced good counselling to both of them. At that time when he went to Ganeshgarh, the accused Prithvi Nai was siting in the house of Vimla. The witness had admitted, that he had a talk with the accused Prithvi, who gave out to be resident of Jorkiya. Then, further talks were exchanged, and it was given out, that Hansraj Nai is married to the sister of the mother of the accused, which Hansraj lives in the village of the witness, and it was agreed, that whenever he would visit, he would see the witness. He has then stated, that Shanker was physically beating Vimla. In cross-examination he has stated, that Panchayat was convened some 2-3 years back, wherein, from Kishanpura, apart from this witness, one Kaluram Nayak was there, and thereafter there was no Panchayat. He has also stated that after Panchayat he never happened to see deceased Shanker. He has stated, that the couple was blessed with one son and one daughter, the deceased was poppy husk addict, and sometimes he was 16 earning something, sometimes not. Then, P.W. 15 has stated that the deceased was his sister in law's son, who was living in Bhuranpura, and was married in Ganeshgarh. He has stated, that since he was not on visiting terms he does not know, that there was any lack of cordiality in the couple. However the deceased had given out, that she is carrying illicit relations with Prithvi, and that, the deceased will bring her by pleasing her. On this aspect of the matter, there is no cross-examination whatever, on the side of the accused. Then, P.W. 16 is the brother of the deceased, and has disowned the police statement Ex.P-57, which contains portions about illicit relations of the accused appellant with Vimla. In our view, from the evidence of P.W. 15, who has not been cross examined at all, on this aspect of the evidence, about existence of illicit relations between the accused appellant, and the other accused Vimla, it is clearly established, that they were having illicit relations. This part is fully corroborated by P.W. 12, and we do not find any reason, not to believe this evidence.
In our view, thus this circumstance is also sufficiently established, by legally admissible and reliable evidence. Of course, this does furnish sufficient motive for the accused to commit the offence.
Thus, all the above circumstances, excluding the circumstance, of the accused pointing out the place, where the murder was committed, are established. In our further view, the circumstances so established, form a complete chain, connecting the accused with the crime, in absence of plausible explanation coming forward on the side of the accused. In the evening of 10th the deceased had gone to 17 Ganeshgarh, and was last seen in the company of the accused, and in the night of 11th the dead body was found, and on 17th the accused was arrested, on whose information, soon thereafter the above mentioned recoveries are made. Thus, these circumstances do form a complete chain establishing the guilt of the accused. At the same time, no hypothesis has been suggested on the side of the defence, which may be consistent with the innocence of the accused, nor, despite stressing our best, have we been able to find out any such hypothesis, which may be consistent with the innocence of the accused.
Thus, we do not find any error on the part of the learned trial court, in convicting and sentencing the accused, as done by it.
The appeal thus has no force, and is dismissed.
( C M TOTLA ),J. ( N P GUPTA ),J.