Rajasthan High Court - Jaipur
Ghanshyam And Anr vs State Of Rajasthan Through Pp on 11 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal (Jail) No. 52/2017
Ghanshyam son of Lattur Lal and another
----Appellants
Versus
State Of Rajasthan Through Pp
----Respondent
Connected With D.B. Criminal Writ Petition No. 155/2019 Ghanshyam S/o Shri Latoor Lal B/c Mali, R/o Rihana, Police Station Gendoli, Distt. Bundi Raj. (At Present Confined In Central Jail Kota) Through His Brother Om Prakash Saini S/o Shri Latoor Lal B/c Mali Aged About 20 Years R/o Rihana Police Station Gendoli, Distt. Bundi, At Present Nanwa Road, Gate No. 6 Police Station Kotwali, Distt. Bundi Raj.
----Appellant Versus
1. State Of Rajasthan, Through Inspector General Prison, Jaipur.
2. The Distt. Parole Advisory Committee, Through The Distt.
Magistrate, Bundi.
3. The Superintendent Central Jail Kota, Raj.
----Respondents
For Appellant(s) : Mr. Govind Prasad Rawat
For Respondent(s) : Mr. Javed Choudhary, P.P.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment / 11/04/2019 Per : Kanwaljit Singh Ahluwalia, J. (ORAL) :
D.B. Criminal Appeal (Jail) No. 52/2017 (Downloaded on 28/06/2019 at 12:00:23 AM) (2 of 10) [CRLA-52/2017] Ghanshyam son of Latoor Lal and Kalu Lal son of Gyarsi Lal were tried by the Court of Sessions Judge, Bundi, in Sessions Case No.134/2013 for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
The charge against the appellants stated that on 19.06.2013 in the evening at about 06:00 P.M. the appellants with the common intention in the night on the way of jungle in the Khal-of -Rihana-ki- badiyan, which fall in revenue estate of Village Rihana committed murder of one Kalawati Jat by causing injuries on her head and various parts of the body with the lathi.
The accused pleaded not guilty and claimed trial. The prosecution, in order to secure conviction of the appellants, examined as many as eighteen witnesses, namely Heera Lal (PW-1), Hansraj (PW-2), Shravan Lal (PW-3), Manoj Jain (PW-4), Kavita (PW-5), Gajanand (PW-6), Ramprasad Sahu (PW-7), Chhotu Lal Choudhary (PW-8), Dr. Gordhan Lal (PW-9), Radheyshyam (PW-10), Ashok Sharma (PW-11), Bhawani Singh (PW-12), Shambhu Lal (PW-
13), Mahadev (PW-14), Digvijay Singh (PW-15), Savitri Choudhary (PW-
16), Raghuveer Singh (PW-17) and Bhanwar Lal (PW-18) respectively.
Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. The accused denied all incriminating circumstances put to them and pleaded innocence.
The prosecution also proved on record documents Exhibit- P/1 to Exhibit-P/40 respectively. In defence, no witness was examined by the accused. The defence proved on record the statement of Kavita @ Teena (PW-5) recorded under Section 161 Cr.P.C. on 25.06.2013 as Exhibit-D/1.
The trial Judge, after appreciating the evidence, vide its impugned judgment dated 26.11.2016, recorded conviction of the (Downloaded on 28/06/2019 at 12:00:23 AM) (3 of 10) [CRLA-52/2017] appellants for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
Having convicted the appellants for the above said offence, the trial Judge, vide a separate order of even date, sentenced the appellants as under :-
"For offence u/s.302/34 I.P.C. : The appellants were sentenced to undergo life imprisonment and to pay a fine of Rs.4000/- each and in default of payment of fine to further undergo four months additional simple imprisonment.
All the sentences were ordered to run concurrently. In addition to the above said sentences, the appellants under the provisions of Section 357 (3) Cr.P.C. were also directed to pay Rs.50,000/- each as compensation towards the love & affection and loss of consortium to the complainant - Bhanwar Lal Jat (PW-18) and her sister - Savitri Choudhary (PW-16)".
Aggrieved against the judgment of conviction and the order of sentence, the appellants have preferred present appeal through Jail.
During pendency of the present appeal, Mr. Govind Prasad Rawat, Advocate has filed 'vakalatnama' on behalf of the accused- appellants.
To prove the murder of Kalawati, aged forty-four years, the prosecution has relied upon the circumstantial evidence.
It may be highlighted here that initially it was a case of blind murder.
Kalawati was missing since 19.06.2013. Her dead-body was recovered on 22.06.2013. On the said date also, Bhanwar Lal Jat (PW-
18), brother of deceased - Kalawati, had presented a written-report (Exhibit-P/24) to the Station House Officer, Police Station Gendoli District Bundi. On the basis of same, a formal F.I.R. (Exhibit-P/25) (Downloaded on 28/06/2019 at 12:00:23 AM) (4 of 10) [CRLA-52/2017] bearing No.116/2013 was registered at Police Station Gendoli District Bundi for commission of offence punishable under Section 302/34 of Indian Penal Code.
The prosecution, in order to prove the guilt of the accused- appellants, has relied upon the following circumstances :-
"A. Motive B. Evidence of Last Seen C. Conversation of the witnesses with the deceased on mobile phone, whereby she relayed information that she is in the company of the accused.
D. Recovery of the Purse of the deceased. From the said Purse, Photocopy of the Identity Card of the Election Commission having photograph of the deceased, Master Data Information, black & white photograph of deceased, one small diary and key chain at the instance of accused- Kalu Lal, in pursuance of the disclosure statements, Exhibit-P/34 & Exhibit-P/31 made by Kalu Lal and Ghanshyam accused, vide recovery memo Exhibit-P/4. E. The recovery of loincloth (dhoti), in pursuance of disclosure statement, Exhibit-P/34 made by Kalu Lal from his house vide seizure memo Exhibit-P/5 and the recovery of Jeans Pant at the instance of accused - Ghanshyam, in pursuance of disclosure statement, Exhibit-P/33 vide recovery memo Exhibit-P/6".
We have been called upon to determine, whether the above said circumstances complete the chain of circumstances to arrive at a conclusion that the offence, if any, has been committed by the appellants alone and by none-else.
(Downloaded on 28/06/2019 at 12:00:23 AM)
(5 of 10) [CRLA-52/2017] First we shall deal with the circumstance of motive relied by the prosecution.
Motive :
It has emerged in the evidence of the witnesses that Kalawati was posted as Class-IV employee in the Office of P.W.D. Kota. One Chanchal was a tenant of Kalawati. Kalawati knew accused- Ghanshyam through Chanchal and, therefore, Chanchal and Kalawati came in the contact with accused - Ghanshyam.
Manoj Jain (PW-4) a jeweler, has deposed in the Court that he had struck a bargain for sale of the land of Ghanshyam with one Shambhu Lal. The witness further deposed that he was working as a property dealer. Ghanshyam had agreed to sell his two bighas land @ Rs.1,50,000/- per bigha to Shambhu Lal. Out of said two bighas land, one bigha land was on the name of Ghanshyam. The said land was sold through a registered sale-deed. Shambhu Lal had paid Rs.2,35,000/- to Ghanshyam. Regarding remaining land i.e. one bigha, sale-deed was not executed, as it was agreed that after the land is mutated on the name of Ghanshyam, sale-deed, qua remaining land shall be executed. It was also agreed that Rs.65,000/- shall be paid at the time of execution of sale-deed, qua remaining land. This witness stated that Rs.20,000/- through Ghanshyam was paid to Chanchal. It was stated that Kalawati knew Ghanshyam through Chanchal.
Kavita (PW-5) niece of deceased - Kalawati, has deposed in the Court that Kalawati had told her on telephone that she had gone to gather amount of the commission in respect of the land sold.
Ashok Sharma (PW-11) in the Court deposed that Kalawati facilitated sale of land of Ghanshyam through Manoj Jain (PW-4).
Savitri Choudhary (PW-16) sister of deceased- Kalawati, stated that Ghanshyam made a grievance to Kalawati that he was not (Downloaded on 28/06/2019 at 12:00:23 AM) (6 of 10) [CRLA-52/2017] paid the amount of commission. Exact words stated by the witness are that "?ku";ke us dgk fd rwus esjs dks deh"ku ugha fn;k vkSj Qksu djds cwUnh ds [kVdM esa cqyk fy;kA". This witness further stated that the deceased had accompanied the accused.
It has come in the evidence of Bhanwar Lal (PW-18) that Kalawati was his younger sister. She was employed as Class-IV in the Office of P.W.D. at Kota and she used to dabble in giving the amount on loan. The exact words stated by this witness are that " ;g :i;ks dk ysu&nsu Hkh djrh FkhA".
We find that in the present case, the prosecution has miserably failed to prove the motive.
No sale-deed regarding the sale of one bigha of land has been proved on record. No agreement to sell regarding remaining land, which was to be sold in future has been produced and proved on record. Shambhu Lal to whom one bigha of land was sold or qua another one bigha of land an agreement to sell was executed, has not been examined. Shambhu Lal (PW-13) examined by the prosecution has only attested inquest report, Exhibit-P/1.
The only evidence, which has surfaced in the testimony of Manoj Jain (PW-4) and Ashok Sharma (PW-11) is that through Kalawati land of Ghanshyam was sold to one Shambhu Lal not examined. The witnesses are not consistent, whether Kalawati had to receive the amount of commission from the accused or the accused was making a grievance that the amount of commission taken by Kalawati has not been returned to him.
What has been stated orally by the witnesses cannot be taken at its face value for non-production of the documents. What is important for us, to note is that Savitri Choudhary (PW-16), sister of (Downloaded on 28/06/2019 at 12:00:23 AM) (7 of 10) [CRLA-52/2017] Kalawati, in cross-examination, has stated that her sister - Kalawati was having a grudge against one Manoj Soni and his son.
We reproduce here following portion from the cross- examination of Savitri Choudhary (PW-16) :-
"cwUnh esa esjh cfgu fdu O;fDr;ks ls vkdj feyrh Fkh bldh eq>s tkudkjh ugh gSA dksVk esa esjh cfgu dh eukst lksuh ,ao mlds yMds ls jaft'k py jgh FkhA muds Åij Hkh 'kd gS fd oks esjh cfgu dks ekj ldrs gSA muds Åij esjh cfgu ds 20&30 yk[k :i;s FksA ."
Suffice it to say that deceased - Kalawati was having financial transactions with the various persons and as per her family members, Manoj Soni and his family members were also having grudge against Kalawati.
We find that the motive purportedly stated by the prosecution has not been proved on record and even otherwise if the deposition of the witnesses is accepted, the same is of very weak in nature and lot of facts are to be assumed for holding that the accused had motive to commit murder of Kalawati.
Evidence of last seen :
No witness has been examined by the prosecution, who had seen deceased - Kalawati with the accused. The only evidence, which has come on the record is that deceased - Kalawati had a telephonic conversation with her family members. She told them that she will come to her house late in the evening. It is stated that deceased- Kalawati on telephone revealed to her family members that she had left the Office in the company of the accused.
Hansraj (PW-2) in the Court stated that Ghanshyam is son of his uncle (chacha). Nine-ten months before the alleged occurrence, he received a telephonic call from Ghanshyam stating that three persons will be coming. The witness stated that the accused- (Downloaded on 28/06/2019 at 12:00:23 AM)
(8 of 10) [CRLA-52/2017] Ghanshyam had disclosed names of three persons as Ghanshyam, Kalawati and Kalu. In cross-examination, this witness stated that on the telephone, the accused had only told that the food be prepared for him and Kalu.
We reproduce here the following lines from the cross- examination of this witness :-
";g dguk lgh gS fd dkyw o ?ku';ke us eq>s Qksu ij dsoy [kkukcukus ds fy, gh dgk Fkk vkSj dqN ugh crk;kA dykorh dk D;k gqvk] og dSls ejh] bldh eq>s tkudkjh ugha gSA nwljs fnu lqcg esjh dykorh ls ckr ugha gqbZA ;g dguk lgh gS fd dkyw o ?ku';ke dbZ ckj nsj rd taxy ls vkrs FksA budk vkus dk jkLrk taxy esa ls gksdj gh gSA dykorh dks fdlus ekjk] bldh eq>s tkudkjh ughaA."
Therefore, Hansraj (PW-2) has not advanced the case of prosecution.
Kavita (PW-5) in the Court deposed that Kalawati is sister of his father (bhua). She deposed in the Court that Kalawati disclosed her on telephone that she is in the company of Ghanshyam and Kalu. The exact words stated by this witness are that " cqvk us Qksu ij ;g Hkh crk;k Fkk fd ?ku';ke o dkyw esjs lkFk gh gSA geus fjgk.kk esa ekywe fd;k rks irk pyk fd ;s nksuksa nks fnu ls ?kj ls xk;c gSA."
In the cross-examination, Kavita (PW-5) has stated that she called to her bhua (Kalawati) on mobile, SIM of which is on the name of her father. It was expected from the prosecution to prove, on record the call details between the two telephones to lend corroboration to the evidence of witnesses that before her death, deceased had called Kavita (PW-5). No call details have been obtained from the service provider. On which date and at what time, the call were made, we have to rely upon the oral statement of Kavita (PW-5).
In the present case, since 19.06.2013 Kalawati was missing Her dead-body was recovered on 22.06.2013. Exhibit-D/1, statement of (Downloaded on 28/06/2019 at 12:00:23 AM) (9 of 10) [CRLA-52/2017] Kavita @ Tina (PW-5) under Section 161 Cr.P.C. on 25.06.2013 was recorded. In case, Kavita (PW-5) had received a telephonic call, as stated by her in the Court, she should have relayed this information at very first instance on 19.06.2013 when Kalawati was found missing or at least on 22.06.2013 when her dead-body was found. The very fact that above information emerged in the statement under Section 161 Cr.P.C. recorded on 25.06.2013, is sufficient for us, to rule out that the evidence of telephonic conversation, as same has been introduced by the witness at a belated stage, as result of consultations and deliberations.
Now we are left with the recovery of the articles. It is a case of the prosecution that the purse of the deceased containing documents, qua her identification was recovered from the house of Kalu Lal, along with his loincloth (dhoti). It is also case of the prosecution that the accused - Ghanshyam got recovered Jeans pant worn by him at the time of alleged occurrence. The case of the prosecution is that as per F.S.L. report, on the loincloth (dhoti) and the jeans pant human blood was found. The prosecution has failed to prove the blood group upon the loincloth (dhoti) and the jeans pant.
Having rejected the circumstances of motive and the last telephonic conversation by the deceased with the witnesses that she was in the company of the accused, we are of the view that the recoveries in itself are not sufficient to complete the chain of circumstances to arrive at a conclusion that the offence, if any, has been committed by the appellants alone and by none else. The recoveries alone will not advance the case of prosecution.
Therefore, we shall extend the benefit of doubt to the present appellants, as a matter of abundant caution. (Downloaded on 28/06/2019 at 12:00:23 AM)
(10 of 10) [CRLA-52/2017]
Consequently, the present appeal is accepted. The
judgment of conviction and order of sentence recorded and pronounced by the ld. trial Court is set aside. The appellants are acquitted of the charges. They be set free forthwith, if they are not involved in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Ghanshyam and Kalu Lal are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
D.B. Criminal Writ Petition (Parole) No. 155/2019:
Mr. Govind Prasad Rawat, the learned counsel appearing for the petitioner -Ghanshyam, has prayed that in view of separate order of even date passed in D.B. Criminal Appeal (Jail) No.52/2017, the present petition for grant of parole be dismissed as withdrawn.
Ordered accordingly.
(BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J ASHOK/ (Downloaded on 28/06/2019 at 12:00:23 AM) Powered by TCPDF (www.tcpdf.org)