Rajasthan High Court - Jodhpur
Shravan vs State on 11 August, 2016
Author: Pankaj Bhandari
Bench: Navin Sinha, Pankaj Bhandari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B.CRIMINAL APPEAL NO.312/1989
Shravan S/o Kheta Ram Jat Resident of Pucca Sarna,
Distt.Ganganagar
........APPELLANT.
V/s
State of Rajasthan
......RESPONDENT.
Date of Judgment :- 11.8.2016
HON'BLE THE CHIEF JUSTICE MR.NAVIN SINHA
HON'BLE MR.PANKAJ BHANDARI,J.
Mr.S.G.Ojha for the Appellant.
Mr.J.P.S.Choudhary for the Respondent.
JUDGMENT
BY THE COURT (PER NAVIN SINHA,CJ)
The Appellant stands convicted under Section 302 and 201 IPC to life imprisonment and rigorous imprisonment for one year with fine of Rs.1,000/- and Rs.100/- respectively with default stipulation The sentences have been directed to run concurrently by the Additional Sessions Judge, Nohar dated 26.7.1989 in Sessions Case No.73/87.
The body of the deceased Rajendra was found floating in the water tank noticed by PW2 Kedar Nath on 11.07.1987 at 7.30 PM leading to institution of 2 Merg Exhibit P/1 by him. Formal FIR Exhibit P/24 was registered on 13.7.1987 by PW-15 Ramjas, the Investigating Officer. The occurrence is stated to have taken place between night of 10/11.07.1987. The post mortem Exhibit P/21 was conducted at 8.30 AM on 12.7.1987 by PW-14 Dr.Bhim Singh. The hyoid bone was fractured. Frothy blood was coming out from the mouth and nostrils. The face was cyanosed. The tongue was swollen and caught in between the teeth. There was swelling around neck with ligature marks in front. The estimated time of death from post mortem was assessed to be 12 to 36 years earlier. The cause of death was opined as asphyxia caused by strangulation.
Learned counsel for the Appellant submitted there is no eye witness to the occurrence. The allegations are based on the last seen theory only. The police statement of witness PW-4 Om Prakash was recorded two days after the FIR with no explanation for the delay. Contrary to his statement that the deceased and Appellant had consumed liquor together there is no trace of alcohol mentioned in the post mortem report or in the deposition of Dr.Bhim Singh PW-14. No viscera was collected by the prosecution to establish consumption of liquor. The investigation was very poor. PW-5 Rajaram, the liquor shop owner deposed that the 3 Appellant and the deceased had consumed liquor outside his shop, while PW-8 Balwant Singh stated that they were consuming liquor inside the shop. PW-5 Rajaram acknowledged that he did not know the Appellant since earlier. No TIP was held after the arrest of the Appellant on 19.7.1987. Identification in Court for the first time cannot be considered reliable. The witness did not disclose to any one till his police statement was recorded that the Appellant had come to his shop and consumed liquor. PW-8 Balwant Singh left while the Appellant and deceased were consuming liquor. The prosecution has led no evidence about what happened thereafter.
The police statement of PW-6 Ramzan was recorded four days later which makes it suspicious. He claims to have told Noparam that he had seen the Appellant coming from the direction of the water tank at night but Noparam has not been examined. The extra-judicial confession allegedly made before PW-7 Rameshwar does not inspire confidence as he was a total stranger. It is highly unlikely that the Appellant made a voluntarily disclosure to a stranger inviting the risk of arrest and conviction. Had the confession been made to a person well known and a confidante the matter would have been different. The alleged recovery 4 of the purse of the deceased with his photograph in it, bits of torn stamp paper and recovery of ring of the deceased from Tara Chand PW-11 whom the Appellant is stated to have mortgaged it have all been disbelieved by the Trial Court. It was lastly submitted that there was no motive for the Appellant to commit the crime. The judgment was therefore not sustainable and the Appellant is entitled to acquittal.
Learned Counsel for the State submitted that the Appellant and the deceased were last seen together at the liquor shop of PW-5 Rajaram at 11.00 PM and then both walked towards the water tank. PW-6 Ramzan saw the Appellant the same night near the water tank. An extra-judicial confession made to a stranger need not be viewed with suspicion. PW-14 Dr.Bhim Singh deposed that strangulation was ante- mortem in nature and death was not due to drowning. Death took place 12 to 36 hours before post mortem at 8.30 AM on 12.7.1987. It takes the occurrence back to around mid-night of 10/11.07.1987 as the time lapsed since then is 32 to 33 hours. The police statement of all witnesses has been recorded on the day the FIR was registered except PW-6 Ramzan done five days later. There has been recovery from the Appellant of the purse of the deceased with his photograph in it, bits of 5 stamp paper and the ring of the deceased mortgaged by the Appellant with Tara Chand PW-11, who has acknowledged his signature on the mortgaged deed Exhibit P/11. The conviction calls for no interference.
We have considered the submissions on behalf of the parties and perused the evidence on record also.
There is no eye witness to the occurrence. The case of the prosecution is based on the last seen theory which is a part of circumstantial evidence. The law applies this theory when the time gap between when the accused was last seen with the deceased and recovery of the dead body is short considered alongwith attendant surrounding circumstances so that it becomes the obligation of the accused to explain under what circumstances death may have taken place. But before the conclusion can be drawn against the accused the evidence must lead to the inevitable conclusion of the accused alone having been seen last with the deceased in proximity to death with no possibility of intervening circumstances by way of death occurring due to some other reasons at some other place and committed by another. The evidence must conclusively point to the guilt of the accused incompatible with any hypothesis of innocence. If there 6 be any lacuna in the prosecution case and in the entirety of the evidence doubts appear, in such a situation circumstantial evidence cannot be considered sufficient for conviction and benefit of doubt has to be given to the accused.
PW-4 Om Prakash, PW-5 Rajaram and PW-8 Balwant Singh are material witnesses. None of them are stated to have any enmity with the Appellant or any reason to falsely implicate him. The evidence of PW-4 Om Prakash makes it evident that they were well known to each other. PW-5 Rajaram the liquor shop owner is an independent witness interested in customers rather than to falsely implicate persons and loose customer base. PW-8 Balwant Singh a professional jeep driver for hire is an independent witness.
The dead body was seen floating in the water tank at 7.30 PM by PW-2 Kedar Nath on 11.7.1987. Merg Exhibit P/1 lodged by him was duly proved by PW-15 Ramjas the investigating officer as also the spot map Exhibit P/2 and inquest report Exhibit P/4.
PW-4 Om Prakash was travelling with the deceased in the jeep of PW-8 Balwant Singh. They met the Appellant on the way who joined them. Together they stopped at the liquor shop of PW-5 Rajaram at 7 about 9:30 PM. After some time PW-4 Om Prakash left first and PW-8 Balwant Singh left the place after the latter was paid the hire charges. PW-8 Balwant Singh deposed that the Appellant and the deceased while drinking at the liquor shop had a strained atmosphere between them followed by a verbal duel. The deceased told the Appellant that he had been deceived warning to take action at the appropriate time. They started drinking inside the shop and then came out and sat on the cot and continued drinking. PW-5 Rajaram stated that the deceased paid for the liquor from a red purse that he was carrying. While the two were drinking they were arguing with exchange of angry words. The witness confirmed the presence of PW-4 Om Prakash and PW-8 Balwant Singh and that they left after some time. The Appellant and the deceased left the liquor shop of PW-5 Rajaram at 11.00 PM and walked towards the water tank which was 300 feet from his shop with no houses in between. If the deceased sat at the liquor shop from 9.30 to 11.00 PM, the witness had ample time to properly recognize the Appellant and therefore the question of a TIP is irrelevant. PW-6 Ramzan stated that he was returning about midnight from the fields where he worked as a labourer. When he reached near the water works he saw the Appellant 8 coming out and he looked perturbed. The Appellant told him not to tell anyone that he had been seen near the water tank. The fact that the witness did not tell anyone at home about having met the Appellant is not considered relevant as it is only later that the witness came to know that the dead body had been recovered from the water tank.
Motive has its relevance in a case of circumstantial evidence as an additional incriminating factor. It is not necessary that the prosecution must establish it before conviction can be sustained in a case of last seen theory. When circumstances speak for themselves motive becomes irrelevant. If otherwise reliable surrounding evidence be available mere absence of motive cannot be an exonerating factor to ignore other relevant evidence and conclude false implication. The evidence led by the prosecution has conclusively established that the Appellant was alone last seen with the deceased till 11.00 PM going towards the water tank and seen coming alone from that area around midnight in suspicious circumstances. The time calculation from when the Appellant and the deceased were seen together last together and then the Appellant was last seen alone till recovery of the dead body was 32-33 hours. The time elapsed since death at 9 the time of post mortem was 12 to 36 hours which coincides with the former. In the entirety of this evidence we are of the considered opinion that the Appellant has offered no explanation as an extenuating circumstance either that he had parted company with the deceased or any other intervening circumstances so as to doubt his complicity in the offence on basis of the last seen theory.
Mere delay of five days in recording of police statement of PW-6 Ramzan is not considered detrimental to the prosecution. The time gap is not considered unreasonable. Moreover he is not a material witness but only provides corroborating evidence.
An extra-judicial confession to be acceptable in evidence must be shown to have been made voluntarily inspiring confidence in the Court. It cannot be considered suspicious or discarded merely because it had been made to a stranger. In such a case it may need closer scrutiny for acceptance. Confession to a confidante may only inspire more confidence. PW-7 Rameshwar stated that he was in his fields guarding his crops at about 1:30 AM. The deceased was running and was called by the witness. He was sweating asked for tea and then made the confession. In cross- examination no suggestion was given that the witness 10 was not in his fields or that the Appellant had not made any confession to him. There is no evidence of any enmity with the witness to suggest false implication. In any event in the facts of the present case even if the extra-judicial confession is eschewed there is otherwise sufficient evidence against the Appellant.
The Appellant was arrested on 19.7.1987 eight to nine days after the occurrence. It is difficult to believe that he was still carrying the purse of the deceased with the photograph of the deceased on his person when he was arrested by the police. His first confession was recorded on 22.7.1987 leading to the recovery of bits and pieces of torn stamp paper Exhibit P/9. He stated to have made a second confession on 24.7.1987 leading to recovery of the ring mortgaged by him to PW-11 Tara Chand said to be belonging to the deceased with the latter's name inscribed in english. The repeated confessions and recovery being attributed to the Appellant while in police custody do not inspire confidence and lack credibility in our consideration to accept it as voluntary under Section 27 of the Evidence Act. Similarly the recovery of ring of the deceased from the shop of PW-11 Tara Chand where the Appellant is alleged to have mortgaged it also does not inspire confidence as PW-11 Tara Chand has been declared 11 hostile and stated that he signed on the seizure memo Exhibit P/11 without any writing on a blank sheet of paper.
The evidence in a criminal trial has to be considered cumulatively and not in bits and snatches. Merely because a part of the evidence may have been disbelieved does not lead to any conclusive presumption of innocence requiring acquittal. The evidence with regard to the last seen theory is complete. The Appellant has not offered any explanation. There have been no intervening factors or circumstances and no such defence has even been taken under Section 313 Cr.P.C. We therefore find no reason to interfere with the conviction of the Appellant.
The appeal is dismissed. The bail bonds of the Appellant are cancelled. He is directed to surrender forthwith and/or be taken into custody for serving out the remaining period of his sentence.
(PANKAJ BHANDARI),J. (NAVIN SINHA),C.J. Parmar