Rajasthan High Court - Jaipur
Rajaram And Anr. vs The State Of Rajasthan on 5 April, 1991
Equivalent citations: 1991WLN(UC)210
JUDGMENT Jas Raj Chopra, J.
1. These four appeals : one represented appeal by accused Rajaram, two represented appeals by accused Hanuman and one Jail appeal by accused Rajaram and Hanuman, are directed against the judgment of the learned Addl. Sessions Judge, Raisinghnagar dated 14.11.1986 where by the learned Addl. Sessions Judge has held the accused-appellants Rajaram and Hanuman guilty of the offences under Sections 302, 120B, 404 and 460 IPC and has sentenced them to life imprisonment together with a fine of Rs. 200/-each and in default payment of fine to further undergo imprisonment for two months for the offence under Section 302 IPC; ten years' rigorous imprisonment together with a fine of Rs. 200/-each and in default of payment of fine to further undergo simple imprisonment for two months for the offence under Section 120B IPC; ten years' rigorous imprisonment together with a fine of Rs. 200/- each and in default of payment of fine to undergo two month's simple imprisonment for the offence under Section 460 IPC; and three years' rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine to further undergo two months' simple imprisonment for the offence under Section 404 IPC. All the sentences have been ordered to run concurrently.
2. The facts necessary to be noticed for the disposal of the appeals briefly stated are : that/hariram the husband of the deceased Mst. Nanudevi was the Nazam (Sub-Divisional Magistrate) in Bikaner District. He married twice. His first wife Mst. Nanu Devi being the wife of Nazam was locally called as Nazmani'. She was living in village Lunewala. His second wife Smt. Gopoli Devi and her son Ajay Kumer were living in Raisinghnagar. At the time of her death, Mst. Nanudevi was aged about 80 years and accused Rajaram was looking after her. Hariram had died and Mst. Nanudevi had he issue of her own. It is alleged that Mst. Nanudevi died the night intervening between 18.10.19.84 and 19.10.1984. Her dead body was found in her house near the place where the cows were tied. In the morning, when the persons found her dead body lying near the cows with a bucket, they thought that Mst. Nanudevi has been killed by the claws of the cows. Mst. Gopali Devi and her son Ajay Kumar were informed and they came to the village. Prior to that, other villagers were also informed and they removed her dead body and put it in the chowk of the house and thereafter as per the customs of the Bishnoi community, her dead body was burried.
3. However, it is alleged that accused Rajaram who was looking after the affairs of Mst. Nazmani was apprehended by the Boarder Security Force people and on his search, it was found that he was carrying a bag in which lot of silver and golden ornaments were there. That raised suspicion in the mind of the B.S.F. authorities and, therefore, he was produced before the police by the B.S.F. people alongwith recovered ornaments. On the basis of the list of recovered ornaments proposed by the B.S.F. people, the Police prepared seizure memo Ex. F.1 of the Ornaments and its report was registered in the Rapat Hoznamcha Ex. P.2. The seized ornaments were hended over to the Malkhana Incharge vide memo Ex. P.3 and the proceedings under Section 102 Cr.P.C. were undertaken.
4. It is further alleged that on 30.10.1984, accused Rajaram went to one Ram Section Pal Bishnoi resident of Lunewala, who has ened to be his Uncle in close relation and told him that he should save him because he has committed a mistake. He was very much perturbed. When P. 3 Ram Gopal asked him as to what mistake, he has committed then he told him that he and one Hanuman have killed Mst. Nazmani by strangulating her neck. P.W. 3 Ram Gopal the accused asked him who also was with them. On this, accused Rajaram told him that P.W. 1 Jaipal was standing outside and was keeping a watch. He further told that this act has been committed in convinance with Sohanlal and his wife. He has committed this crime on account of greed for money. Accused Rajaram told P.W.3 Ramgopal that the Police is behind him and, therefore, he should save him because the Police in suspecting that it was he who has killed Mst. Nazmani on account of the fact that the BSF people apprehended him with the ornaments. P.W. 3 Ramgopal then immediately want to Raisinghnagar and gave out his statement Ex. P.5 to the Police, wherein he has desclosed that the seized ornaments have connection with the murder of Mst. Nazmani. On this F.I.R., Ex. P.25 was drawn and a case under Sections 302, 460, 114, 120B and 147 IPC was registered against all these persons and P.W. 10 Bheemsingh S.I. was directed to conduct investigation of this case by the Superintendent of Police. Thereupon, P.W. 10 Bheem Singh alongwith Dy. Superintendent of Police, Raisinghnagar, Sub-Divisional Magistrate, Raisinghnagar and three Doctors went to the place of the occurrence, dug out the dead body, got its postmortem examination conducted vide Ex. P.9 and also prepared the Inquest Memo Ex. P.12. The site was inspected and the site plan Ex. P.S. and site Inspection Memo Ex. P.6 were prepared. The accused appellants Hanuman and Rajaram were arrested vide Memo Ex. P.13 and 14 respectively. At the instance of accused Rajaram, one bag was recovered and the seized ornaments were put for identification before Mst. Gopali Devi and others. The visceras of the dead body were also taken and were sent for chemical examination. The Chemical Examiner has reported that the portions of viscera (1-4) from packet marked 'A' and "B' respectively gave negative test for the metallic poison, sthyl methyl, alcohol choloral hydrate cyenides, barbiturates, alklloids and neeeluedes.
5. After usual investigation, the case against the accused-persons was Shallaned in the court of learned Addl. Chief Judicial Magistrate, Raisinghnagar. It appears that the Police did not find it a fit case to put up a challan against the accused Shri Sohanlal and his wife. So that as it may, P.W. 1 Jaipal sent a report from Jail that he wants to make a clean breast of the cohole affair and aimilorly, a report was made to the Prosecution to the Addl. Chief Judicial Magistrate, to declare his as an approver. On this, he was collectary the learned Alld. Chief Judicial Magistrate, Regainhnadar and after undergoing necessary formalities, his statement was recorded and thereafter, the was granted person and he was made an approver. Thereafter, the case was committed to the court of learned Addl. Sessions Judge, Raisinghnagar, who charged the accused-appellantes Rajaram and Hanuman in the eoffences under Sections 302, 460, 404 and 120B IPC. As the accused appellants did not plead guilty of the charges, the prosecution has examined as many as 14 witnesses in support of its case. The Statement of accused persons were recorded under Section 313 Cr. P.C. accused-appellant Hanuman pleaded that he was arrested on 27.10.1984 whereas it was pleaded by accused-appellant Rajaram that he was arrested on 26.10.1984. They have stated that they have been falsely inplicated on account of the involvement of Shri Bhagirath Bishnoi Police Officer of the rank of Deputy Inspector General of Police or Inspector general of Police and on account of some disputes about the land and on account of political rival vary. They examined one in their offence. The learned Addl. Sessions Judge, was hearing bath the parties, decided the case as arceaid & hence this appeal.
6. We have learned Mr. M.L. Garg and Mr. Ram Rakha Vyas, learned Counsel was hearing for the accused-appellants, Hemant Choudhary, the learned Public prosecutor and Vijay Bishnoi, the learned Counsel for the complainant. We carefully gone through the record....
7. It appears that initially, When Mst. Nanu Devi was found dead, it was suspected that she has been killed on account of the injuries inflicted by her own cows because her dead body was found lying near the place where the cows are tied and, thereforce, her relations were informed and without any suspicion, her dead body was burried as per the customs of the Bishnoi community. Thereafter, it is alleged that on 26.10.1984, accused Rajaram who was looking after the land of Mst. Nanudevi was arrested by the BSF people along with a bag, which contained number of ornament and that raised suspicion in the minds of the BSF authorities and the Police Personal.
8. It has been stated by P.W. 13 Shri J.N. Shukla that at the night intervening between 25.10.1984 and 26.10.1984, he alongwith Operator Subhasnchand, Hawaldar Babulal and Sipoy Ramniwas etc want on petrolling duty towards the village Bhimpura. At about 4.30 A.M., sipoy Ramniwas spotted a man, who was fleshing a torch. He was looking towrads 53 N.P. On cautioning him to stop, he stopped, He was carrying bag which heleft. When he came near Sipoy Ram Niwas, he was asked by him as to why he was living that bag there. He was directed to bring it. He then went and brought that bag with him. In the meanwhile, Hawaldar Babulal and Operator Subhachand also reached near Ram Niwas. On searching the bag, it was found that it was continning a lot of ornaments. Hawaldar Babulal than informed about it to P.W. 13 Shri J.N. Shukla. P.W. 13 J.N. Shukla produced that man before Shri B.P.K. Pillai Head quarters Incharge. PW 13 Shri J.N. Shukla has identilied the accused Rajaram in the Court.
9. P.W. 12 Shri S. Banerjee, second Leutenant has stated that on 26.10.1984, while Subedar J.N. Shukla and party were on patrolling duty, they caught hold of a man, who was carrying a bag with him full of ornaments. That man was produced before the Adjutant Shri B.P.K. Pillai, who deputed him to produce that man before the Police Station, Raisinghnagar On this, he want to Police Station, Raisinghnager and surrendered the accused Rajaram to the custody of the Police. The recoered articles were also handad over to the Police vide Memo Ex. PW.24 According to him, in his presence, accused was not going without the accused was asked to sit in a corner at the Police Station. The Police interrogated him and thereafter, he came back.
10. P.W. 11 Nathuram has stated that on 26.10.1984, he was working as S.H.O. Police Station, Raisinghnagar. According to him P.W. 12 Shri Section Banerjee C/o 56, A.P.O. came to the Police Station alongwith memo Ex. P.24, which contained list of the ornaments which were found in possession of accused Rajaram. Those golden and silver ornaments were seized under Section 102 Cr.P.C. vide memo Ex. P.1.
11. P.W. 2 Chananmal has stated that after these ornaments were seized vide memo Ex. P.1, they were handed over to him or their entry in the Malkhana Register. He has also proved the Rapat Roznamcha Ex. P.2 and the entries in the Malkhana Register Ex. P.3.
12. It is, therefore, clear that in the night intervening between 25.10.1984 and 26.10.1984 accused Rajaram was apprehended by the B.S.F. People near village Bhompura and thereafter, he was produced before the Police Station, Raisinghnagar on the very day and all these ornaments which were recovered from him were seized under Section 102 Cr.P.C. and were kept in Malkhana. Now, it is alleged that thereafter, the accused Rajaram was let off because there was no investigation pending against him. This is what had been stated by P.W. 12 Chananpal P.W. 11 Nathuram has also stated that accused Rajasam was not kept in custody, when he was handed over by the B.S.F. People. This fact however, stands falsified by the statement of P.W. 1 Jaipal, who is an approver and who was accomplice in the crime. P.W. 1 Jaipal has stated that after accused Rajaram was arrested by the BSF people, on the very next day, he too has caught by the Police while he was in his Field. Accused Hanuman was also arrested alongwith him and they were kept in police custody for 8 days. He has further stated that he, accused Rajaram and accused Hanuman were kept in the Police Station for those 8 days before they were sent to the judicial custody. According to him, accused Sohanlal was also arrested and was kept in police station for 8 days but when they were sent to judicial custody, Sohanlal was released. He has further stated that on the very next day, of accused Rajarams' arrested by the BSF People, he and accused Hanuman brought to the Police Station. It is, therefore, clear that accused Rajaram was arrested by the BSF people on the night intervening between 25th and 26th October, 1984. He was surrendered lo the Police custody on 28.10.1984 and it appears that of account of some information which, was given to the Police by him, accused Hanuman and P.W. 1 Jaipal were also arrested on 27.10.1984 i.e. on the very next day of the arrest of accused Rajaram by the Police. Thus, the statement of P.W. 10 Bhomsingh as also the statement of P.W. 2 Chananmal stand falsified by the tostimony of P.W. 1 Jaipal that after the ornaments were seized under Section 102 Cr.P.C, accused Rajaram was let off by the Police. P.W. 2 Chananmal was specifically asked as to why it has not been recorded in the Rapat Roznamcha that after seizure of the ornaments under Section 102, Cr.P.C. accused Rajaram was kept in Police custody for whole of the night and thereafter, he was let off. Neither the fact that accused Rajaram was kept in Police Station for whole of the night was recorded in the Rapat Roznamcha nor the fact that he was let off has been recorded in the Rapat Roznamcha but it is clear from the statement of P.W. 1 Jaipal that he and accused Hanuman were arrested on the very next day of the arrest of accused Rajaram by the BSF People and, thereafter, they were not let off by the Police.
13. Now, in this back ground, we will have to examine the testimony of P.W. 3 Ram Gopal. The leaned Addl. Sessions Judge has taken a very cursory view of the evidence. He has not tried to probe deeply in the matter and has accepted the evidence given by the witness Shri Ram Gopal as a groaple truth. The learned lower court has filed to scrutinise the evidence on the basis of the checks available on record.
14. P.W. 3 Ram Gopal has stated that after about 10-11 days of the death of Mst. Nanu Devi, accused Rajaram came to him and requested him to save him as he has committed a mistake. He further told him that he and accused Hanuman have killed Mst. Nanu Devi by strangulating her neck. P.W. 3 Ramgopal has further stated that accused Rajaram told him that P.W. 1 Jaipal, Sohanlal and his wife were also with them in this heinous crime. They have done it on account of the greed for money. Accused Rajaram further told him that whatever came to him share has been recovered from him by the B.S.F. People and, the Police in behind him and, therefore, he should be saved. It was on this information that he went to the Police Station Raisinghnagar on 30.10.1984 and gave his oral statement Ex. P.3, which was reduced into writing. Thus, the entire basis for launching this prosecution against the accused-persons is Ex. P.5., which has been lodged by P.W. 3 Ram Gopal.
15. Now, this has to be used whether this could have happened in the manner, P.W. 3 Ram Gopal has stated before the Police. As per P.W. 3 Ram Gopal, before 30.10.1984, accused Rajaram was not arrested by the Police and he came and met him and disclosed all these things. It has been stated by P.W. 11 Nathuram that he recorded the statement of P.W. 3 Ramgopal, which was given before the police and has been marked as Ex. P.5 and on the basis of that statement Ex. P.5, he prepared F.I.R. Ex. P.25 and registered a case against the accused-persons and, thereafter, it is allaged that the investigation was handed over to P.W. 10 Bheemsingh under the orders of the Superintendent of Police. P.W. 10 Bheemsingh has stated that he arrested the accused persons vide memo Ex. P.13 to 15 on 31.10.1984. This is what has been proved by these two Police Officer i.e. P.W. 11 Nathuram and P.W. 10 Bheemsingh.
16. Now, whether the testimony of P.W. 3 Ramgopal, P.W. 10 Bheem Singh all P.W. 11 Nathuram Can be treated as reliable is a basic question which we address to ourselves and we are firmly of the opinion that on the basis of the checks available on record, it can safely be held that the testimony of these three witnesses is unbelievable. The entire basis on which the prosecution story has been built up falls to the ground like a house of cards. Then the testimony of P.W. 3 Ramgopal, P.W. 10 Bheemsingh and P.W. 11 Nathuram is scrutinised on the touch stone of the checks available on record.
17. P.W. 1 Jaipal has stated that on the very next day of the arrest of accused Rajaram, he and accused Hanuman were arrested and thereafter, they were kept in Police custody for 8 days. It is not his case that they were ever released by the Police. It transpires from the statements of P.W. 3 Ramagopal P.W. 10 Bheemsingh and P.W. 11 Nathuram that the police got an inkling of the involvement of accused-persons Rajaram, Hamuman and P.W. 1 Jaipal in the murder of Smt. Nenudevi from the information which was furnished to it by P.W. 3 Ram Gopal and it was on this basis that a case under Sections 302, 120B, 460 and 404 IPC was registered and the accused persons were arrested on 31.10.1984. However the correct state of affair appears to be that some information must have been given by accused Rajaram to the Police and the rcordson which P.W. 1, Japal & accused Hanaman value arrested on 27.10.1984 and they were kept in custody. Thus, the prig in of the prosecution story has not been put forth before the court in the manner it has actually taken place. The original information which that have been given by accused Rajaram to the Police has been totally suppressed. It was on his information that the involvement of P.W. 1 Jaipal and accused Hanuman was suspected and they were arrested and were kept in Police custody and, threrefore, once they were kept in Police custody, there was no occasion for accused Rajaram to go to P.W. 3 Ramgopal and to say that the Police is behind him and he must be saved. Thus, to this extent the prosecution story stands totally discredited and is unworthy of credence. It appears that a false story has been concocted and the real information which that have been furnished by accused Rajaram to the Police which led to the arrest of P.W. 1 Jaipal and accused Hanuman has been suppressed and that creates a serious doubt in the prosecution story, the benefit of which must go to the accused-appellants.
18. Now, we proceed to examine the next lin in the chain of the evidence that connection the accused-persons with this name & that with testimeng of P.W. 1 Jaipal. We will have to ascertain whether P.W. 1 Jaipal is a reliable witness, whose testimony receive sufficient corroboration, from other materal ornament so as to lend credi tarading to his statement Before scrutinising the testimony of P.W.I Jaipal, it will be useful to refer to the legal position as regard appreciation of evidence of an approver. In this respect, Mr. M.L. Garg has drawn out attention to a decision of their lordships of the Supreme Court in Sarwan Singh v. State of Punjab , wherein it has been observed:
that an approver is undoubtedly a competent witness under the Evidence Act. But the appreciation of his evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied, the second test which still render the compalied is that the approver's evidence must receive sufficient corroboration. This test is special to the case of woak obtainted evidence like that of the approver.
19. Was further observed that every person who is a comftent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.
20. This every view has been expressed by their lordships of the Supreme Court in Ram Narain v. State of Rajasthan , whearein it has been held that the conviction does not become illegal meraly because it is based on uncorroborated testimony on an accomplice. However, Section 123 of the Evidence Act road with Illustration (b) to Section 114 requires that the Court should seek as a rule of prudence for corroboration which must connect or tend to connect the accused with the crime charged. The Court should first evaluate the approver's evidence and if the same is found uninspiring and unacceptable, than corroboration would be futile and unnecessary.
21. Thus, according to their lordships of the Supreme Court, the Court must first evaluate the approver's evidence and it is only when it is found reliable then corroboration should be sought to lend credibility of his statement. In Sarwansingh's case , it has been observed by their lordships of the Supreme Court that the Courts are naturally relunctant to act on the tainted evidence of an approver unless it is corroborated in material particulars by other independent evidence but it could not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view in adopted, it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. It was further held that in a criminal case, more suspicion however strong, cannot take the place of proof, keeping in view this back ground, now we will have to examine the testimony of approver P.W. 1 Jaipal.
22. P.W. 1 Jaipal has stated that he knew accused Rajaram from before the accused Rajaram belongs to village 53, N.P. and he has been married in that village. He has further stated that accused Rajaram was looking after the agricultural land of Mst. Nenudevi. It has been alleged by him that accused Rajaram told him to serve him with wine as a daughter has born to him. On this, he gave Rs. 20/- to accused Rajaram. Accused Rajaram brought one bottle of wine, which was enjoyed by him, accused Rajaram and one Baliya. After taking wine, Baliya was sent away by accused Rajaram and these after accused Rajaram told him that he is to do one work with his assistance. That work was not disclosed by accused Rajaram. He enquired from accused Rajaram as to what was that work but he did not disclose it to him for 10 days and told that he will disclose it before an hour of the work. It is further alleged that one day, when P.W. 1 Jaipal was going with the husband of his father's sister (Puspha) accused Rajaram met and told him that he has some work with him and so, after taking meals, he should come to him. On this after taking meals, at about 9 p.m. he went to accused Rajaram, where accused Hanuman was also present. Accused Rajaram told him that they will have to kill Mst. Nanudevi and, therefore, all the three went to the place of the occurrence. He initially refused to involve himself in such matter but accused Rajaram told him that she is a moneyed lady and has lot of ornaments and he will give some share to him. On this persuation, he accompanied accused Rajaram and Hanuman and reached near the house of Mst. Nenu devi. After reaching near the house of Mst. Nenu devi, he stayed puside the house of Mst. Nenudevi and accused Rajaram and Hanuman went behing the house and by scaling over the wall of the house of Mst. Nanudevi, they entered into the house of Mst. Nenudevi and later, accused Hanuman came near the gate of the house and told him to come inside. On this, he went inside. The inside gate was opened by accused Rajaram. At that time, Mst. Nanudevi was slepping on a cot in her Kotha. Accused Rajaram strangulated her neck and accused Hanuman sat on her chest. Accused Hanuman and Rajaram told him to touch the fest of Mst. Nazmani. He acted accordingly. On account of strangulation of her neck, she died. She was living alone is that house. Threreafter, it is alleged that accused Rajaram took out the key from below her pillow, opened the lock of the Kotha and went inside it and remained there for 20 manutes. Threreafter, he came out from her Kotha with one jute bag containing golden and silver ornaments. He then put that jute bag on the ground and suggested that Mst. Nazmani should be left near the place where the cows are tied alongwith a bucket of water so that the people may wake that she has been killed by animals. The dead body of Mst. Nazamani was put near the lags of the cows with a bucket of water. It is further alleged that at that time, accused Hanuman had one pistol and he threatened him that if he disclosed this incident to anyone, that will murder him and will not give his share. Threreafter, accused Rajaram and Hanuman started from alongwith that jute bag full of golden and silver ornaments, on which, he demanded his share from then but accused Rajaram told him that his share will be given to him after Dewali. Thereafter, he came back to the house of the husband of his father's sister locally called as 'PHUPHA'). On hearing the noise of his legs, his Phupha woke up and asked as to who came inside his house, on that he total I am Jaipal. His phupha asked him from where he has come? Herplied that he is coming after urinating This is the entere story which has been nerreted by approver P.W. 1, gaipal. Now this has to be seen whethes this story is reliable or not?
23. In his cross-examination, P.W. 1 Jaipal has admitted that he was living at that time in village Lunewala, although he is the resident of 25 P No He has stated that before about five months of the incident. He was working as a labouer with Godaram Sigad of village Lunawala. He was residing at his house and was also taking his meals there. He has admitted that Godaram Sigad happens to be his grand father. He has admitted that he and Redaram were living in the same house if P.W. 1 Jaisal was looking and labourer with Reduram sigad, who happens to be his and mother and he was living at his house and was also taking his meals with him, there was no occasion for him to go for work with Rajaram, who happens to be the husband of his father's sister and to dina at his place and also to go to his house for sleeping after the occurrence. Thus, to this extant, the testimony of P.W. 1 Jaipal is self contradictory and is unreliable.
24. P.W. 1 Jaipal has stated that he had no occasion to see the house of Mst. Nazmani and stil, he has stated that he knew Mst. Nazmani because she belongs to village Lunewal. He had no occasion to walk with her. He was rut certain questions in his cross-examination relating to the whereabouts of the house of Mst. Nazmani. It was required from him, as to whose house is situated in the north of the house of Mst. Nazmani. He has stated that he dies but know it. He also does not know, on how many sides of the house of Mst. Nazmani, road exists. Rathor, he has stated that he did not go to the house of Mst. Nazmani before that day and, therefore, he cannot say whether the Nohara of Mst. Nazmani was situated just adjacant to her house or not? He has also not in a position to say as to how much is the height of the outer pets of Mst. Nazmani's house and how much is the height of the octer wall of the house of Mst. Nazmani, but he has stated that nobody can wscels her the wall of the house of Mst. Nazmani without some other help. He has further stated that no boundary wall be existing inside her house, and there is also as gate on the inner poration of her house. Initially, in his examination-in-chief he has sited that Mst. Nazamni was sleeping inise her Kotha but later in his cross-examination, he has stated that she was sleeping in the Verendah of her Kotha and there was no light at that place. It is, therefore, clear that he had little occasion to go to Mst. Nazamni's house. He did not know the whereabouts or her house. Even he do not know about the height of the gate of her house. His statement about the fact as to where mst. Nazmani was sleeping is also mutually contredictory.
25. It will be clear from the site plan Ex. P.8 and site inspection memo Ex. P.20, which have been proved by P.W. 10 Bhoam Singh that the outer wall of the house of Mst. Nazmani is 8' high from the floor, and this is a wall which is situated between her Nohra and her house. There is an inside portion of the main gate of the house at Place-A and there is an inside portion enclosed with the wall from all the four sides. Thus, to this extent, the statement of P.W. 1 Jaipal that there is no inside wall and no inside gate stands falsified. As per site inspection memo, the height of inside wall is 111/2' high an therefore, a man cannot Scalp over the wall with out help, in the month of May 9 p.m. cannot be called as late night, and at that nine hour of the night people do not sleep even in the village and, therefore, has accused Rajaram and Hanuman sceled over nitially the outer wall and later inner wall has not been explained. He does not say that they went with Hemant which could help them in scaling over the wall Ordinarily, a man cannot scalpover the wall of 111/2" High with out any help and this is what P.W. 1 Jaipal has also stated but he has clarified as to how it was done.
26. So that as at may, P.W. 1 Jaipal has stated that on the date of the accurence, when he had going with his Phupha Rajaram, accused Rajasam told his that he has same work with him and so he should came to his, He went to Rajaram while accused-sitting and there he was told by accused Rajaram that he has to go the house of Mst. Nazmani along with them to kill her. PW 3 Ramgopal has stated that accused Rajasam had no separate abuse to live. He was living in the house of M.L. Nazmani for her an year, and, it is clear from the statement of PW 3 Ramgopal that accused Rajaram has no separate abde or house to live. This, it has not been disclosed as it at that place, PW 1 Jaipal met accused Rajaram. If accused Rajaram was living with Mst. Nazmain then PW 1 Jaipal Could aoily to her house for mesting with accused Rajaram and. therefore, there was no occasion for them to scalp over the wall of the house of Mst. Nazmani.
27. Of course P W 5 Banwari as stated that accused Rajaram was living in a room hear the house of Mst. Nazmani but he has not disclosed which is that place. There is no room situated near the house of Mst. Nazmani and there is no room in the nohre and inside the inner enclosure of her house. There is no room outside her house and therefore, to that extent, extent, the testimony of PW 5 Banwari lal cannot be accepted.
28. PW 3 Ram Gopal has stated that accused Rajaram told him that he and accused Hanaman weat inside the house of Mst. Nazmani and accused Jaipal (PW 1) was standing outside on a grared duty. In his cross-examination, he has stated that accused Rajaram did not tell his anything about PW 1 Jaipal but later, he has corrected himself and has stated that PW 1 Jaipal was standing outside on grard duty. Thus, it is not his case that PW 1 Jaipal was over called insider the house of Mst. Nazmani and, therefore, to this extents also, the testimony of PW 1 ipal stands discredited by the testimony of PW 3 Ramgopal.
29. P.W. 1 Jaipal has stated that accused appeallants Rajaram and Hanuman entered into the house of Mst. Nazmani by scaling over the wall, which was 111/2 high and thereafter, they called P.W. 1 Jaipal inside the house through the inner gate of the house, which was opened by accused Hanuman. According to P.W. 1 Jaipal, when they entered into the house of Mst. Nazmani by scaling over the wall, Mst. Nazmani was sleeping. He has further stated that at the time, when accused Rajaram and Hanuman were scaling the wall of the house of Mst. Nazmani, it was 9 p.m. When a person jumps the wall, the height of which is 111/2 high, that could certainly create some noise and may woke up the persons living in that house or the persons living nearby that house. When accused-appellants Rajaram and Hanuman entered into the house of Mst. Nazmani by scaling over the wall with some difficulty, there was no reason for that to call P.W. 1 Jaipal inside the house by opening the inner and outside gates of the house because they would also create lot of noise, which may attract the attention of the persons residing nearby the house of Mst. Nazmani. No person would choose such an hour of the night for committing such a crime and even if they choose that hour of the night to commit such a crime, they will not afford to create any unnecessary noise. Thus, to this extent, the testimony of P.W. 1 Jaipal appears to be improbable. Mst. Nazmani was 80 years old. She could safely have been done away with by these two persons and such, there was no earthly reason for them to call Jaipal inside by opening two doors which could certainly create lot of noise in a Crime might.
30. P.W. 1 Jaipal has further stated that as soon as they entered into the house of Mst. Nazmani, accused Rajaram strangulated the neck of Mst. Nazmani and accused Hanuman sat on her chest and he was asked to touch the feels of Mst. Nazmani. When the strangulation has resulted in the death of Mst. Nazmani and accused Hanuman was already sitting on the chest of Mst Nazmani, there was no reason to call accused Jaipal (P.W. 1) inside to just touch or for that maker catch the feets of Mst. Nazmani. There appears to be no sanctity in asking P.W. 1 Jaipal to touch her feats after she has already died on account of strangulation. Thus, to this extent, the testimony of P.W. 1 Jaipal appears to be unnatural and unbeliavable and against the natural human conduct.
31. P.W. 1 Jaipal was asked about the condition of the body of Mst. Nazmani after this occurrence. He has stated that she died on account of strangulation. No other injury has been indicted to her by accused-persons. When he was asked about the condition of the body of Mst. Nazmani, he has stated that her eyes were open and her mouth was shut. Her tongue was not protruding out. As regards the condition of the body of Mst. Nazmani in certain other witnesses were also examined. P.W. 4 Ajay Kumar has stated that there was an injury near her right eye and there was no an injury on her left hand. He did not see any other injury on her body.
32. P.W. 6 Banwarilal has stated that he saw the dead body of Mst. Nazmani. She had one injury on her cheek and one injury on her hand. There was some black spot on her neck. P.W. 7 Smt. Gopali Devi has stated that Mst. Nazmani had one injury each on her eyes, neck and nose. Let us examine the testimony of these witnesses in the light of the medical testimony and the Inquest Memo prepared by the Police, in which, the condition of the body of the deceased Mst. Nazmani has been recorded.
33. P.W. 9 Dr. R.L. Goel has found two contusions : one of the size of 5" x 6" on the right frontal region and the other of the size of 6" x 3" from chin to her right cheak. There were no injuries either on her right eye or on her hands. He has further stated that there were no external injuries on her body. The Doctor has reported that the tongue was protruding out and the mouth was open. In the Inquest Memo, it has been reported that both eyes were closed and the mouth was open. The tongue was protruding out. Whereas P.W. 1 Jai Pal has stated that her eyes were open and the mouth was shut and her tongue was not protruding out. Thus, the testimony of the eye witnesses as regards the injuries on the body of Mst. Nazmani is falsified by the post mortem examination report and the Inquest Report. The postmortem report has been proved by P.W. 9 Dr. R.L. Goel and the Inquest memo has been proved by P.W. 10 Bheemsingh. P.W. 9 Dr. R.L. Goel has opined that they were not sure about any outer injury on her neck and there was disorganised clotted blood over internal part of neck, larynx and trachse. The probable cause of death was concluded as 'Strangulation'. Thus no outer injury was seen by P.W.9 Dr. R.L.Goel on the neck of Mst. Nazmani even after 12 days of the death and, therefore, to say that some injuries were on the neck of Mst. Nazmani is an after-thought. Strong while and reliable If there was strangulation, there must have an outer injury on the neck, which was not observed by P.W.9 Dr. R.L.Goel and the other injuries which were observed by the Doctor have not been disclosed by P.W.I Jaipal and therefore, it appears that P.W.I Jaipal has no knowledge about this incident....
34. P.W. 1 Jaipal has stated that he was told by accused Rajaram and Hanuman that Mst. Nazmani has lot of money and ornaments and so, they will kill her and will give some share to him. However, after the occurrence has taken place, it has been stated by P.W.1 Jaipal that the accused-appellants Hanuman and Rajaram tried to go away with the jute bag containing money and ornaments without giving him any share from it. How could he allow them to go without giving him his share. There was no occasion for them to tell him that his share will be given to him after Dewali. Even if they told it to him how was he obliged to accept it. He has categorically stated that he did not see that was there inside the jute bag. A man who accompanies some persons for commission of such a crime as murder only with this under standing that they will get a reward for it will not certainly not allow his companions to go without giving him his own share pf the booty and will not further allow them to go without ascertaining the description of the property, which was being taken by them. To this extent, his testimony is totally unreliable and unbelievable as it is vowfully against natural human conduct.
35. It appears from he prosecution evidence that some shares have been distributed because as per the testimony of P.W. 3 Ramgopal, accused Rajaram told his that the ornaments which costs to his share have been recovered from his possession by the BSF people. Thus, it is clear that there were some more ornaments than these and they have been shared amongst the accused-persons, the testimony of P.W. 1 Jaipal that accused Rajaram and Hamuman told him that his share will be given to him after Dewali appears to be against the natural human conduct, thus, the manner in which the entire occurrence has been disclosed by P.W. 1 Jaipal it is cristal clear that the testimony of P.W. 1 Jaipal does not inspire any confidence. He is not a reliable witness. When his evidence is scrutinised on the touch stone of the checks available on record as also on the touch stone of the natural conduct, the testimony of P.W. 1 Jaipal does not appear to be reliable.
36. No foot prints were found at the place of the occurrence and no recovery of ornaments has been made from other accused persons. No finger prints have been taken. Thus, there is no other corroborative evidence to show that this occurrence has taken place in the manner it has been disclosed by P.W. 1 Jaipal. It is allegad that P.W. 1 Jaipal has disclosed this entire story to his Phupha Rajaram and his Phupha Rajaram has not been examined to lend any support to the prosecution story. It we leaves aside the testimony of P.W. 1 Jaipal, (here is not an iota of evidence to prove that a conspiracy was hatched between the accused persons and, thereafter, they killed Mst. Nazmani by strangulating her nack.
37. Under these circustances, we are convinced that no offence under Sections 302, 120B, 480 and 404 IPC is made out against the accused-appellants Rajaram and Hanuman. Of course, accused-appellants Rajaram has been found in possession of the ornaments which belong to Mst. Nazmani and they have been identified by P.W. 4 Ajay Kumar and P.W. 7 Smt. Gopali Devi. P.W. 14 Mahesh Singh has proved that these witnesses have identified these ornaments correctly before him, when he was posted as Munsif Magistrate, sangariya. Accused-appellant Rajaram did not claim that these ornaments belong to him. Rather, he has disclosed before the BSF People that these ornaments belong to one Hanuman son of Ramuram. It is clear from the evidence of P.W. 7 Smt. Gopali Devi and P.W. 4 Ajay Kumar that these ornaments belong to Mst. Nazmani and they have been stolen from her house. Those ornaments were recovered almost after eight days of the death of Mst. Nazmani. Consequently, the accused-appellant Rajaram at beat can be convicted for the offence under Section 411 IPC. He is in custody since the date of his arrest. In the facts and circumstances of this care we consider it proper that the and of justice will meet if the accused appellant Rajaram is sentenced to a period of three years rigous imprisonment together with a fine of Rs. 200/- and in default of payment of fine, to further undergo simple imprisonment for two months for the offence under s. 411 IPC. He has already served out his sentence and, there fore, he need not be detained incustody.
38. In the result, the appeals filed by accused Hanuman are allowed and the judgment of the learned Addl. Sessions Judge, Raisinghanagar dated 14.11.1986 as regards him is not aside and he is acquitted of the offence under Sections 302, 120B, 460 and 404 IPC. He bet set at liberty forthwith if he is not required in any other case.
39. ...he appeals filed by accused-appellant Rajaram are concerned, they are allowed in part. The conviction and sentences awarded to the accused-appellant Rajaram for the offences under Sections 302, 120B, 460 and 404 IPC are set aside. However, he is convicted of the offence under Section 411 IPC and is sentenced to three years' rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine to further undergo simple imprisonment for two months. He has already served out this sentence and, therefore, he need not be detained in custody. The ornaments recovered from accused Rajaram be returned to the legal representatives of Mst. Nenudevi @ Nazmani. The record of the case be sent to the learned lower court forthwith.