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Rajasthan High Court · body

2000 DIGILAW 763 (RAJ)

Mohan Lal v. State of Rajasthan

2000-07-04

D.N.JOSHI, N.N.MATHUR

body2000
Honble MATHUR, J.–These two appeals are directed against the judgment dated 27.10.89 passed by the learned Addl. Sessions Judge, Bhilwara convicting the accused appellants Babu Lal and Madan Lal of offence u/S. 302, 120-B, 364 and 201 I.P.C. The appellants Kishna and Mohan have been convicted of offence u/S. 302/34, 120-B, 364/34 and 201 I.P.C. The appellants have been sentenced to imprisonment for life and to pay a fine of Rs. 100/-and in default of payment to further undergo 15 days S.I. The appellants have also been sentenced for offence u/S. 364 and 201 I.P.C. All the sentences have been ordered to run concurrently. (2). Before stating the prosecution case, in traditional way, we propose to give a preclude to the incident as disclosed during the trial which in our opinion is necessary to narrate, since it serves as a strong motive, hetching the conspiracy for the horrifying crime executed in cruel manner. (3). The appellant Kishan Rabari a resident of Budhpura was a mines owner. The appellant Babu Lal Darji (tailor) and appellant Madan Lal Sonar (Goldsmith) resident of village Bigod were the partners of Kishan Rebari in his mining business. PW/5 Bheru Lal and PW/6 Nathu Lal were the labourers on their mines. The appellant Mohan Maharaj used to practice Tantrik rituals. The appellant Kishan claims to have seen in dream that there was a hidden treasure in the Burge (cqtZ) of the isolated and lonely fort of Devnagar which could be retrieved by pleasing the evil spirits for which they were required to perform the prescribed rituals by giving human sacrifice and offering fresh human blood. The appellant Kishan went to the village Bigod and disclosed this fact to his partners in mines business namely; Babulal and Madan Lal. Babu Lal suggested that Mohan Sharma, resident of Hingoria is a person who practise Tantrik rituals and, therefore, he should be called. Accordingly, Mohan Maharaj was summoned and they met at the residence of Babu Lal. All the four prepared the plan to retrieve the hidden treasure. The appellant Mohan Maharaj gave a list of essential articles for performing the rituals which included human blood, perfume, gram, Ghee & Golochan. Appellants Madan Lal and Babu Lal undertook the job of arranging fresh human blood by human sacrifice. Services of labourers PW/5 Bheru Lal and PW/6 Nathu were felt necessary for digging the ground. (4). The appellant Mohan Maharaj gave a list of essential articles for performing the rituals which included human blood, perfume, gram, Ghee & Golochan. Appellants Madan Lal and Babu Lal undertook the job of arranging fresh human blood by human sacrifice. Services of labourers PW/5 Bheru Lal and PW/6 Nathu were felt necessary for digging the ground. (4). On 17.11.87 PW/1 Gopal Lal informed the Police that his son Pawan Kumar aged 4 years has disappeared from the school. He stated that his son Pawan Kumar had gone to the school alongwith his mother PW/21 Mst. Manju, who was also a primary school teacher in the same school. After lunch hour, he disappeared from the bus stand. The information was registered in the `Rojnamcha. The search was made of the child but it did not yield any result. Thus, on 18.11.87 a written F.I.R. Ex.P/1 was lodged at police station Bigod. The police registered a case of offence u/S. 364 I.P.C. During the investigation on 21.11.87 Babulal, and Iqbal saw a body lying in the well in the field of one Hakim Ali a flour mill owner. The information was given to the police. The dead body was taken out from the well and it was identified to be of Pawan Kumar. The police registered a case of offence u/S. 302 I.P.C. Inquest was prepared and autopsy of the dead body was conducted. The Doctor opined that the deceased Pawan Kumar died due the head injury. The suspects were rounded up by the police and the appellants were thoroughly interrogated. The appellant Madan Lal and Babu Lal were arrested on 07.12.87 whereas the appellants Mohan Lal and Kishna were arrested on 08.12.87. After usual investigation police laid chargesheet against the appellants of offence under Sec. 302, 364, 201 and 120-B I.P.C. (5). The appellants pleaded not guilty to the charges levelled against them and claimed trial. The prosecution in order to bring home the prosecution case against appellants examined 28 witnesses and produced certain documents. The appellants in their statement under Sec. 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against them. Analysing the evidence, the trial court convicted and sentenced the appellants as noticed above. (6). We have heard Mr. Doongar Singh, learned counsel for the Mohan Lal and Mr. Sandeep Mehta, amicus curiae for the appellants Babu Lal, Madan Lal and Kishna. Analysing the evidence, the trial court convicted and sentenced the appellants as noticed above. (6). We have heard Mr. Doongar Singh, learned counsel for the Mohan Lal and Mr. Sandeep Mehta, amicus curiae for the appellants Babu Lal, Madan Lal and Kishna. We have also scaned, scrutinized and evaluated the entire evidence exhaustively. (7). PW/23 Dr. Manak Chand Kalal has stated that he conducted the post-mortem of the dead body of Pawan Kumar and prepared the post mortem report Ex. P/22. He found that there was a fracture on left parietal bone extending from the level pinna to midline. He also found a fracture on frontal bone in midline for 1 1/2. In his opinion, the deceased died due to head injury. (8). PW/1 Gopal Lal is the unfortunate father of the deceased child Pawan Kumar. He has stated that he and his wife had gone to their respective schools, as both were the teachers by profession. Pawan Kumar used to go to school with his mother. In the afternoon at about 2 p.m. his younger brother-in-law Shankar came to the school and give him information about the missing of Pawan Kumar. He went to the bus stand and other places in search of Pawan Kumar but, it did not yield any result. At about 6 p.m. he gave an oral information to the police about the missing of his son. He also stated that his younger son aged 4 years was wearing a white kurta and underwear of green colour. He was also wearing socks. On the next day, he submitted a written F.I.R. Ex.P/1 at the Police Station, Bigod. PW/21 Mst. Manju is the mother of Pawan Kumar. She has given statement almost in the line of her husband PW/1 Gopal Lal. PW/3 Smt Kamla, the maternal grand mother of deceased Pawan has stated that Mst. Manju is her daughter. Her son Pawan often used to visit her. On the fateful day, he had taken food with her and then left for the school. He was not seen thereafter. She also stated that at that time, he was wearing a white Jabba and green underwear. He was also wearing socks. PW/8 Mst. Geeta has stated that she knew Mst. Manju and her son Pawan Kumar. On the fateful day, he had taken food with her and then left for the school. He was not seen thereafter. She also stated that at that time, he was wearing a white Jabba and green underwear. He was also wearing socks. PW/8 Mst. Geeta has stated that she knew Mst. Manju and her son Pawan Kumar. She had seen him at the gate of school at about 12 p.m. or 1 p.m. He was wearing a white kurta and green underwear. (9). PW/5 Bherulal and PW/6 Nathu Lal are the important witnesses on the point of conspiracy of the alleged crime, and since defence has tried to brand them as accomplience, we have scaned their testimony with great circumspection. PW/5 Bheru Lal has stated that after few days of Divali festival, he was called by appellant Madan Lal through one Bhanwar Lal as he did not report quickly, he was fired by him. He directed him to proceed to Budhpura mines on the next day. He stayed in the night at his (Madan Lal) residence. He saw that in the evening Babu Lal, Kishan, Mohan Maharaj and Nathu assembled, and then went to the house of appellant Babu. There appellant Kishna disclosed that there is a hidden treasure in the old fort. He inquired as to how he could know the said fact, on which, he stated that he has been given a message to that effect in dream. The appellant Mohan Maharaj took out the `Panchang and seeing the stars made certain calculations. He asked them to arrange vermilion (sindoor), Camphor, Golochan and two bottles of perfume. He also asked them to arrange for human blood. The appellants Madan & Babu undertook to carry out the said work. In the morning, he was asked to go to the mines. He was accompanied by the appellant Kishan and one Natha. In the way Natha got down. They went to the Samelia Mahadev mines. He also stated that in the night, all the four accused persons had agreed to assemble after 5-7 days at Samelia Mahadev. Accordingly, all assembled after few days at `Samelia Mahadev. The appellant Kishna inquired from Madan, if all the material for worship has been arranged. They answered that everything has been arranged. In the evening at about 6 p.m. they proceeded towards the fort. Accordingly, all assembled after few days at `Samelia Mahadev. The appellant Kishna inquired from Madan, if all the material for worship has been arranged. They answered that everything has been arranged. In the evening at about 6 p.m. they proceeded towards the fort. He declined to accompany them, but on their insistence, he had to accompany them. All of them got down from the jeep at a culvert near Matajis temple. Thereafter, they went to the fort. Mohan Maharaj open the `Panchang to see the stars and directed them to follow his instructions. There was blood in the phial. The blood was spread on the places where the digging was to be done. After spreading blood Mohan Maharaj proceeded with the other rituals. At that time wind started blowing, the birds started chirping. The appellant Mohan Maharaj warned that only those persons who were of strong heart should stay and others should run away. Accordingly, he and PW/6 Natha left the place. After 4-5 days Babu and Madan came to him. He inquired about the hidden treasure. Both of them fired him and asked to keep quite. He also asked as to how he was concerned with them. At that time he was working at the `Samelia Mahadev mines. In the evening they went to the house of appellant Kishna. There appellant Madan insisted to stay at the house of Kishan. He revealed the news that the dead body of the child who disappeared in village has been traced and there is a tension in village Bigod. It was also expressed that a Hindu Muslim communal roites may also broke out. He enquired about the bottle in which the blood was brought, on which he was being abused by Madan and Kishan. He told him that he has no business to talk about all those things. After 2-3 days, he was called by the Police for interrogation. PW/6 Nathu Lal was also a labour in the mines of Kishan Rebari. In relation he was brother-in-law of his son. He has stated that all the four appellants met at the house of Babu. The appellant Kishan had given details about the hidden treasure in the court-yard of Devnagar fort. Mohan Maharaj was called. he emphasized for the necessity of the human sacrifice in order to please the evil spirits. He has given subsequent narration almost as given by PW/5 Bheru Lal. The appellant Kishan had given details about the hidden treasure in the court-yard of Devnagar fort. Mohan Maharaj was called. he emphasized for the necessity of the human sacrifice in order to please the evil spirits. He has given subsequent narration almost as given by PW/5 Bheru Lal. He has stated that all the four appellants went to the Devnagar fort. The rituals were performed through the appellant Mohan Maharaj and the blood was also separated on the stones. Nothing has been elicited in the cross-examination of the witnesses to discredit their testimony. (10). It is contended by Mr. Doongar Singh, learned counsel for the appellant that the statement of both these witnesses are unnatural and deserves to be discarded. Learned counsel has criticized the statement of these witnesses particularly with respect to their statement of blowing of wind, trubmling of trees etc. In our view, the statement of these witnesses are not unnatural, keeping in view the environment, at the particular moment, in which they were on the spot. He also submitted that both the witnesses are in the nature of accomplice and, therefore, no reliance can be placed on their testimony. A careful reading of the statement of the witnesses shows that they have not participated in the conspiracy for the murder of Pawan Kumar for the ultimate object of enriching by hidden treasure. It clearly appears that they were associated out of the necessity to the extent that the labourers were required for digging the field after the rites were performed. Whenever they enquired to know the details, they were abused and nothing was disclosed to them. It is well settled that a conspiracy itself from its very nature is general hetched in its secret. Therefore, in such cases the direct evidence to prove the conspiracy may not be available from wholely disinterested persons or from other strangers. The reference may be made to the decision of the Apex Court in Noor Mohammed vs. State of Maharashtra (1). Testimony of these witnesses on the point of conspiracy cannot be discarded, as even if their evidence is some what shaky, other circumstantial evidence on record, lend assurance to their occular account. We may deal with the cases of the appellants individually, as further assurance is lent to occular account by circumstantial evidence, for which we may deal with the case of each appellant separately. ACCUSED BABU LAL (11). We may deal with the cases of the appellants individually, as further assurance is lent to occular account by circumstantial evidence, for which we may deal with the case of each appellant separately. ACCUSED BABU LAL (11). PW/5 Bherulal has stated that all the appellants Kishan, Madan and Mohan Maharaj had assembled at the house of Babu Lal, where Kishan Lal talked about the hidden treasure. Mohan Lal was called for performing rituals to please evil spirits. Mohan Maharaj asked them to arrange for human blood. Appellants Babu Lal and Madan Lal undertook to arrange the human blood. He has also stated that Babu Lal and Madan Lal brought the blood in a phial. They all went to Devnagar Fort. Pooja was performed by Mohan Lal, which included spreading of blood on the ground. He has also established the presence of PW/6 Nathu. The statement of PW/6 Nathu is almost on the line of PW/5 Bheru Lal. Babu Lal assured and arranged the human blood is a important incriminating circumstance pointing towards his guilt. (12). Further, the appellant Babu Lal was arrested on 07.12.87 vide Ex. P/21. In pursuance of the information given by him under Sec. 27 of the Evidence Act vide Ex. P/39 to PW/27 Banney Singh, Dy. Superintendent of Police, an empty phial was recovered in presence of motbir PW/7 Hariram. The blood had dried on the walls of phial. The phial was packed and sealed on the spot and deposited with the Malkhana Incharge PW/15 Mohan Lal at the police station Bigod. Thus, the statement of PW/27 Banney Singh of sealing of the phial, depositing the same alongwith the other articles with Malkhana Incharge PW/15 Mohan Lal finds support from the statement of PW/15. PW/13 Vasu has stated that he had taken the articles from the Malkhana Incharge in sealed condition and handed over to PW/28 Shanti Lal in the office of the Superintendent of Police, Bhilwara. PW/28 Shanti Lal has stated that vide Ex. P/15 he had given the articles which included bottle to PW/26 A.V. Josef and PW/22 Arjun Singh for delivery in the F.S.L. The report of the chemical examiner Ex. P/38 shows that there was presence of human blood on the Phial. Thus, the prosecution has succeeded in establishing the recovery of blood stained phial from the possession of the accused Babu Lal. P/38 shows that there was presence of human blood on the Phial. Thus, the prosecution has succeeded in establishing the recovery of blood stained phial from the possession of the accused Babu Lal. Another evidence in that regard is of PW/10 Mohammed Husain. He has stated that the appellant Babu Lal had visited his shop for the purchase of bottle of perfume. He also purchased one empty bottle. He has identified the said empty phial as article 2 present in the court. There is also evidence of last seen against Babu Lal. PW/16 Moosa is the bus driver. He has stated that he was plying bus on the Mandalgarh-Bhilwara route. At the Bigod bus stand he has seen the appellant Madan and Babu Lal alongwith Pawan Kumar, the son of the teacher Mst. Manju. He has stated that he knew Pawan Kumar as his son also used to study with him. (13). As regards the recovery, a criticism has been levelled by Mr. Doongar Singh that recovery is inadmissible in evidence as the same has been made from the open place. In our view there is no substance in the contention as the bottle has been recovered from shurb in the fort area which is a isolated place. The question is not as to whether the place was accessable to others but the question is whether the presence of bottle is ordinarily visible to others, if it is not, then it is immaterial that a concealed place is accessable to others. The phial was consealed in shurb. Thus, it was out of visibility of others in normal circumstances. Thus, it was only within the special knowedge of the person who concealed. Recently the Apex Court in Himachal Pradesh vs. Jeet Singh (2) has rejected such contentions by observing that ``It is fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Sec. 27 of the Evidence Act. Their Lordships expressed the proposition by giving illustrations that if article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public place or kept hidden in a public office, the article would remain out of visibility of others in normal circumstances. (14). Their Lordships expressed the proposition by giving illustrations that if article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public place or kept hidden in a public office, the article would remain out of visibility of others in normal circumstances. (14). It is next contended by the learned counsel that no reliance can be placed on the statement of PW/16 Moosa as his statement has been recorded after 20-25 days. We have carefully read the statement of PW/16. He has stated that the day on which he had seen deceased Pawan Kumar in the company of the appellant Madan Lal and Babu Lal, he received the information of the death of his mother-in-law and, therefore, on the same day he left for Indore. After his return, he was called by Dy. Superintendent of Police. Thus, the explanation has been given for recording the statement after 20-25 days. There is no reason to discard the explanation given by PW/16 Moosa. Thus prosecution has succeeded in establishing each incriminating circumstance firmly against the appellant Babu Lal that, he alongwith Madan Lal undertook to arrange human blood, he actually arranged human blood in a phial, participated in rituals to please evil spirits with a motive to retrieve hidden treasure, recovery of phial stained with human blood, purchase of phial with other article i.e. bottle of perfume and last seen by cogent evidence. MADAN LAL (15). PW/5 Bheru Lal has stated that he was called by Madan Lal. He alongwith Madan Lal, Kishan Lal went to the house of Babu Lal, where Mohan Maharaj explained the rituals. The occular evidence of PW/5 Bheru Lal and PW/6 Nathu is common as against Madan Lal and Babu Lal, as noticed above. Thus, the incriminating circumstances of arranging human blood is established against Madan Lal also. (16). Further, the appellant Madan Lal was arrested on 07.12.87 vide Ex.P.20. In pursuance of the information given vide Ex.P.40 a blood stained bed sheet was recovered vide Ex. P/17. A piece of blood stained underwear of the deceased vide Ex.P/18 and few blood stained stone and socks of the deceased vide Ex. P/19 have been recovered in presence of the motbirs PW/17 Magna and PW/18 Jodha Singh. The recovery has been supported by both the aforesaid motbirs in addition to the statement of PW/27 Banney Singh, Dy. Superintendent of Police. P/19 have been recovered in presence of the motbirs PW/17 Magna and PW/18 Jodha Singh. The recovery has been supported by both the aforesaid motbirs in addition to the statement of PW/27 Banney Singh, Dy. Superintendent of Police. It is alleged that Pawan Kumar was murdered in the field of appellant Madan by striking stone on the head. The underwear was torned for cleaning the blood from the head. Socks were also taken out from one leg for cleaning the blood from the head. The bad-sheet was used for carrying the dead body from the field of Madan for throwing it in the well. All the articles were sealed on the spot and they were delivered to the F.S.L. All the articles found to be stained with human blood vide F.S.L. report Ex. P/38. The evidence of PW/15 Mohan Lal, PW/13 Vasu, PW/28 Shanti Lal, PW/26 A.V. Josef and PW/22 Arjun Singh has been dealt with while dealing with the case of Madan Lal. The additional evidence in case of Madan Lal is that the piece of underwear and the socks have been identified that to be of the deceased Pawan Kumar by PW/1 Gopal Lal & PW/21 Mst. Manju. PW/14 Bhanwar Singh, Tehsildar, Mandalgarh has stated that the bed sheet, piece of underwear and socks were identified in the Test Identification held on 28.12.87 vide Ex.P/16. He has stated that the Test Identification proceedings were taken in accordance with the rules and all necessary precautions were observed. In addition there is a statement of PW/19 Kanhaiya Lal. He run provision store in village Bigod. He has identified Madan Lal a person who has visited his shop for the purchase of Golochan, Camphor and vermilion. PW/16 Moosa stated that the deceased Pawan Kumar was last seen in the company of Madan Lal and Babu Lal. The statement of Moosa has been discussed while dealing with the case of Madan. (17). Thus, the prosecution has succeeded in establishing the each incriminating circumstance firmly against Madan Lal that, he alongwith Babu Lal undertook to arrange human blood, and he actually arranged and produced human blood in a phial, participated in rituals to please evil spirits with a motive to retrieve hidden treasure, recovery of blood stained bed sheet, piece of underwear and shocks of deceased, last seen, visit to provision store, by cogent evidence. (18). (18). The circumstances referred to above as against Babu Lal and Madan Lal taken cumulatively form a complete chain, leaving no escape from the conclusion that within all human probability Pawan Kumar was murdered by appellants Babu Lal and Madan Lal and none else. KISHAN LAL AND MOHAN LAL (19). It is evident from the statement of PW/5 Bheru Lal and PW/6 Nathu that all the four appellants assembled at the house of Babu Lal, where appellant Kishna disclosed about the dream and hidden treasure, he alone could not have retrieve hidden treasure, as such it appears natural to take help of others, which could be his partners in mining business. To make the dream reality a person known to perform rituals to please the evil spirits was necessary. They found Mohan Maharaj a person practising Tantrik rituals. Appellant Mohan Maharaj was called, he told them in presence of PW/5 Bheru Lal and PW/6 Nathu that for performing the rituals human sacrifice (cfynku) and human blood would be necessary. It was agreed to arrange for human sacrifice and human blood. This job was entrusted to Madan Lal and Babu Lal. The plan was monitored by Kishan Lal, as is evident from the statement of two witnesses that he enquired from Babu Lal and Madan Lal, if they had arranged the human blood. Similarly appellant Mohan also enquired about the human blood. He performed the rituals and spread human blood on the ground. Thus, there is not only reliable evidence of agreement of human sacrifice for achieving the object of retrieving hidden treasure, but also to over act against both the appellants Kishan and Mohan Lal. Assurance is also lend to occular testimony by circumstantial evidence. In persuance of information given by him vide Ex. P/41, incriminating articles gram, earthenpot, bottle of perfume, small plastic box were recovered vide Ex. P/27, Similarly from the appellant Mohan Maharaj in pursuance of the information given vide Ex.P/42 a Tantrik book vide Ex.P/13 and two pieces of papers written in tantrik language by red pencil vide Ex.P/12 and P/14 were recovered in presence of Motbir PW/11 Arjun Singh. We have seen the pieces of papers Ex.12 and Ex.P/14. The writing of both the papers are quite unnatural. There is also a picture of evil spirit. The unusual writing of two pieces of papers is an important incriminating circumstance against the appellant. We have seen the pieces of papers Ex.12 and Ex.P/14. The writing of both the papers are quite unnatural. There is also a picture of evil spirit. The unusual writing of two pieces of papers is an important incriminating circumstance against the appellant. Thus, prosecution has succeeded in establishing the charge of criminal conspiracy to commit the murder against appellants Kishan Lal and Mohan. (20). On review of the entire evidence, we are in complete agreement with the findings and conclusion arrived at by the learned Addl. Sessions Judge, Bhilwara. Thus, the prosecution has succeeded in establishing the charge of conspiracy of murder for evil design of enriching by a hidden treasure and charge as against the appellants Madan Lal and Babu Lal for the murder of Pawan Kumar has been established beyond all reasonable doubts. (21). In the result we find no merit in both these two appeals and they are accordingly dismissed. The appellants are reported to be in Jail. They will serve out the remaining part of sentence.