Ramesh Kumar v. State of Rajasthan — 1999 DIGILAW 214 (RAJ)

Honble V.G.PALSHIKAR,J.–Being aggrieved by the judgment and order of conviction passed by the learned Sessions Judge, Jalore (Camp Bhinmal) in sessions case No.2/94 convicting the accused under Secs. 363,377 & 302 of the Indian Penal Code and sentencing him for two years rigorous imprisonment and a fine of Rs. 200/-, ten years rigorous imprisonment and a fine of Rs. 500/-and imprisonment for life and a fine of Rs. 500/-in default of payment of fine to further undergo one month and two months R.I. respectively, the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal. (2). Facts giving rise to the present appeal stated briefly are that on 12.10.1993, first information report was lodged in Police Station, Karda in Jalore District that on 7.10.1993 at about 5.00 p.m., one Bhera a six years old child has been killed by one Ramesh Kumar after the child was sodomised by him and the fact was disclosed to the complainant on 11.10.1993 in the night by Ramesh Kumar making an extra-judicial confession. On the basis of this complaint, investigation was started and Ramesh Kumar was prosecuted for murdering the child. The prosecution has examined 17 witnesses two prove several documents exhibited by the State to establish beyond reasonable doubt the fact that Bhera was murdered by accused Ramesh Kumar after he was sodomised by the accused. Accepting the prosecution evidence, the learned Sessions Judge came to the conclusion of guilt and convicting the accused to suffer imprisonment for life. It is this order of conviction which is assailed in this appeal on the ground mentioned in the memo of appeal as also canvassed before us by the learned counsel. (3). With the assistance of the learned counsel for both the sides, we have reappreciated the oral evidence and have scrutinised the documentary evidence again. We have examined rival contentions in light of our reappreciation of the evidence as was done by us. (4). PW. 1 Faglu has deposed that he had seen the accused going towards the Nala in the after-noon. He called the accused but accused did not response. He was the accused wearing black pant and the pant was soiled and the accused was wetted till knees. The witness heard the second day that accused killed the deceased. The witness has been cross-examined and there is nothing in his cross-examine to shake his testimony. He called the accused but accused did not response. He was the accused wearing black pant and the pant was soiled and the accused was wetted till knees. The witness heard the second day that accused killed the deceased. The witness has been cross-examined and there is nothing in his cross-examine to shake his testimony. He thus, proves the fact that the accused was seen in the Nala in the after-noon of 7th October,1993. (5). PW. 2 Smt. Kesi is an old woman who saw the accused Ramesh Kumar going with deceased Bhera towards Nala. She was them on the bank of the nala. She asked, the accused as to where he going and she was told that the accused is taking the deceased to see an elephant. The witness has also deposed that the accused Ramesh Kumar was wearing black pant and white shirt whereas, the deceased was wearing black half pant and white shirt. Later on, she heard that Bhera has been killed. Her cross-examination also is wholly inconsequential and she has proved the fact that accused and the deceased were last seen together on the bank of the Nala in the after-noon of 7.10.1993. (6). PW. 3 Smt. Radha is the mother of deceased Bhera. She has deposed that in the evening of 7.10.1993 when her son did not return home, her husband querried about him and when she offered to go to the accused and enquire about son, she was informed by the husband that the husband was told by accused Ramesh Kumar that they need not search for Bhera as he has gone towards Pabari Nala. Thereafter, when other relations came around the husband of the witness told them to search for Bhera near the Pabari Nala as Ramesh had told him that Bhera was going towards Pabari Nala. They were accordingly went to search the Nala and came back to report that they found the dead body of Bhera. Accordingly, report of death was made. The witness then deposes that four days after the report, accused Ramesh Kumar came to their house at about 8.00 in the night and confessed before her husband that he has sodomised Bhera and killed him in intoxicating condition, PW. 7 Vagta was present at that time. Accordingly, report of death was made. The witness then deposes that four days after the report, accused Ramesh Kumar came to their house at about 8.00 in the night and confessed before her husband that he has sodomised Bhera and killed him in intoxicating condition, PW. 7 Vagta was present at that time. The witness has deposed that when Bhera had left the house, he was wearing shirt and half pant but the deceased did not have half pant on it. She is thus first witness examined by the prosecution to prove the extra-judicial confession made by the accused. Her cross-examination is inconsequential. (7). PW. 4 Krishna Kumar is a child aged about 11 years who deposes that he met Bhera and accused in the after-noon of 7.10.1993 and when he asked Bhera where he is going, Bhera told him that accused Ramesh Kumar is taking him to see an elephant near the Pabari Nala. The witness then states that when he saw Bhera, he was wearing white shirt and black half pant and Ramesh Kumar was wearing black trouser. He then learnt that Bhera drown in the Nala and died. He also is therefore, a witness who has last seen the deceased alive with the accused. He also corroborates other witnesses in relation to the statement by Bhera with the deceased is being taken by accused to see elephant near Pabari Nala. (8). PW.5 Raga states that he heard about accuseds confession to his guilty in the matter of killing Bhera. However, his evidence is inconsequential as everything he has deposed to was told to him by others. He however; has deposed that he saw the deadbody of Bhera and saw he was wearing only shirt and no half pant and his posterior is injured. (9). PW.6 Chhagna is another witness who saw the dead body and who states that there is no half pant on the dead body. (10). PW.7 Bagta is other witness in whose presence, the extra-judicial confession was made. He corroborates the statement of PW.3 on all material particulars and states that he drown away the accused as he was enraged by the conduct and confession of the accused. There is nothing in the cross-examination of this witness which discredit him in any manner. He and PW.3 together thus prove the extra-judicial confession as made by the accused. (11). PW.8 Dr. There is nothing in the cross-examination of this witness which discredit him in any manner. He and PW.3 together thus prove the extra-judicial confession as made by the accused. (11). PW.8 Dr. Pramod Kumar is the Doctor who conducted the post mortem on the dead body of Bhera and has opined that the death is caused due to drowing and asphyxia. He has also opined that there is possibility of deceased having been sodomised. (12). PW.9 Surajpal Singh who took the sealed packets to F.S.L., Jaipur. PW. 10 Lalit Kumar is the son of a shopkeeper who sold a toffee worth of 1 rupee to Ramesh Kumar. Ramesh Kumar had handed over the same to Bhera in presence of witness. He saw them going towards Pabari Nala. He thus, third witness who saw the accused and the deceased alive. (13). PW.11 Devi Singh is a liquor vendor who deposes that the accused consumed liquor in his shop and said that he is going towards Pabari Nala. PW 12 Banshilal is a witness to the recovery of half pant from the Nala at the instance of the accused by the Police. He is also witnessed to the fact of identification of those half pants as one of worn by the deceased at the time of his death. He has deposed that Ramesh Kumar had discovered the half pant after removing a stone from the Nala. The witness thus proved recovery of half pant worn by the deceased at the time of his death or before that and was recovered at the instance of the accused. (14). PW.13 Pukhraj is the Police Constable who deposes about the recovery of the dead body from the water in Pabari Nala. PW. 14 Bagh Singh is witness to the panchnama of the spot from the dead body was recovered. (15). PW. 15 Teekma Ram is another witness to the fact of accused consuming liquor on the fateful day. PW. 16 Trikma Ram is the father of the deceased. He deposes to have met the accused near a well and he was told by the accused that Bhera had gone to Nadi to watch an elephant. He has deposed to the extra-judicial confession made by accused Ramesh Kumar to him and corroborates or is corroborated by PW.3 and PW.7 in this regard. (16). PW.17 is the Station House Officer, Police Station, Karda. He has deposed to the extra-judicial confession made by accused Ramesh Kumar to him and corroborates or is corroborated by PW.3 and PW.7 in this regard. (16). PW.17 is the Station House Officer, Police Station, Karda. He has deposed to the investigation being carried out by him and has proved various recoveries and other documents prepared and executed by the Police in discharging of their duties of investigation. It was on appreciation of this evidence that the learned Sessions Judge came to the conclusion of guilt and convicted the accused as aforesaid. It is argued before us by the learned counsel appearing on behalf of the accused that the entire case is concocted. The circumstantial evidence as led by the incident is grossly insufficient. It is unnatural that a person who committed the crime would confess it after four days. Heavy reliance has been placed by the learned counsel on a judgment of the Supreme Court reported in 1997 Cr. Law Reporter at p. 5921, where in para 41, the Supreme Court has observed thus; ``The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between `may be true and `must be true and the same divides conjectures from sure conclusions (Jaharlal Das vs. State of Orissa, 1991 (3) SCC 27 ). (17). According to the learned counsel, the chain of circumstances in the present case is not complete as there are certain missing links. The prosecution has not established beyond reasonable doubt that the deceased Bhera was sodomised. There is no evidence of unnatural intercourse and therefore, there is no motive for the accused to kill the deceased. (17). According to the learned counsel, the chain of circumstances in the present case is not complete as there are certain missing links. The prosecution has not established beyond reasonable doubt that the deceased Bhera was sodomised. There is no evidence of unnatural intercourse and therefore, there is no motive for the accused to kill the deceased. If this aspect is taken away, then the chain of circumstances is not complete and therefore, relying on the Supreme Court judgment the accused deserves to be acquitted. (18). We are unable to accept any of the contentions raised by the learned counsel as the evidence on record shapes beyond reasonable doubt the complicity of the accused in committing the crime. There are more than three witnesses who saw the accused and the deceased going together when the deceased was alone alive. All of them desposed that the accused taken the deceased towards Pabari Nala to see him an elephant. The accused was seen standing in Nala on the date of occurrence in the evening by PW. 1. There is recovery of half pant worn by the deceased at the instance of the accused from the place where the accused was seen standing in the Nala by PW. 1 The entire chain of event is fully established by the prosecution. We have already discussed above the evidence as led by the prosecution in detail and therefore, on reappreciation of the same, we are of the considered opinion that the learned Sessions Judge has correctly marshaled the facts, rightly appreciated the evidence on record and his conclusion of guilt of the accused is legal and sound. We endorsed each finding recorded by the learned Judge. We see no force in this appeal and the same is dismissed.