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2001 DIGILAW 851 (RAJ)

Kalu Ram : Nawab Ali v. State of Rajasthan

2001-05-11

JAGAT SINGH, V.G.PALSHIKAR

body2001
JUDGMENT 1. - The appeal of accused Kalu Ram and another is through counsel and appeal filed by Nawab Ali through jail. Both appeals are against the order of conviction passed by the learned Sessions Judge, Anupgarh in sessions case No. 71/1998, convicting the accused under sections 302, 364, 120-B & 201 IPC. They can conveniently be disposed of by this common order. 2. With the assistance of the learned counsel for the appellants and the learned Public Prosecutor for the State. We have scrutinised the record and re-appreciated the evidence on record. 3. The prosecution story as it emerges from re-appreciation of the evidence is that; FIR Ex. P/5 was lodged in the Police Station, Anupgarh by one Sardul Singh at 5.15 p.m. to the effect that on 12.10.1996, his brother was kidnapped by Nawab Ali Vaidya and Kalu Ram Mali towards Anupgarh, since then, he is missing. It is alleged in the FIR that Krishna Singh was killed by the accused. It is also mentioned in the FIR that the accused killed Krishna Singh because accused Nawab Ali had illicit relation with the wife of Krishna Singh called Gurmail Kaur. On the basis of this report, investigation was started and the accused and wife of the deceased were prosecuted. The prosecution evidence briefly on the basis of which conviction is recorded in this case on scrutiny is that: 4. PW-1 Dhanna Ram was declared hostile by the prosecution. PW-2 Gurjar Singh was declared hostile by the prosecution. He has, however, deposed that he heard that Krishna Singh was killed by accused. 5. PW-3 Sardul Singh is the brother of deceased Krishna Singh. He has deposed that wife of Krishna Singh had developed illicit relation with the accused -Nawab Ali. The witness has deposed that he came to know that for about one and a half month, Krishna Singh is missing and therefore, he went to enquire about it, then he was told by Roshan Lal son of Dhanna Ram that on 12.10.1996 at about 4-5 in the evening, Nawab Ali Vaidya and Kalu Ram of Salempur took Krishna Singh forcibly towards Anupgarh. The witness then said that he was told by Roshan Lal that his father Dhanna was told by Nawab Ali that Nawab All and Kalu Ram have killed Krishna Singh. On hearing this from Roshan Lal, he has lodged the report Ex.P/5 in Police Station, Anupgarh. The witness then said that he was told by Roshan Lal that his father Dhanna was told by Nawab Ali that Nawab All and Kalu Ram have killed Krishna Singh. On hearing this from Roshan Lal, he has lodged the report Ex.P/5 in Police Station, Anupgarh. The witness then said that 8 days after, the report was lodged. Circle Inspector, Anupgarh showed in the Police Station, Khajuwala a Nikker, Kurta and Thela and photographs of the dead body. The witness identifies the photographs as that of his deceased brother, he identifies the clothes also. 6. PW-4 Iqbal Singh. He has deposed that he was told by Roshan Lal who was working with Krishna Singh that in the evening of Asoj-ki-Amavasya at about 7.00 Nawab Ali and Kalu Ram were seen by him taking Krishna Singh forcibly towards bus for Anupgarh and that Krishna Singh was missing for last about 40 days. He then deposed that after this was told to him by Roshan Lal, Gurmail Kaur told them crying that her husband is dead and he has been killed by Kalu Ram and Nawab Ali. He was also witness to arrest of Nawab Ali. 7. PW-5 Roshan Lal, he was working with Krishna Singh as an employee. He has denied any knowledge about the incident and therefore, he was declared hostile. He stated that he does not know the accused Nawab Ali and Kalu Ram. He has denied the suggestion that on 12.10.1996, he saw the accused taking deceased Krishna Singh towards Anupgarh. 8. PW-6 Mangla Ram, he was working as Beldar at DKD Minor (Canal). He has stated that on 15.10.1996, he was working as Beldar at DKD Minor and he had gone for checking the canal, when he was at the Mogra of 14 DKD, he saw a dead body lying in the canal, he therefore, reported about the dead body to Khajuwala Police Station. Then Circle Inspector came on the spot, took photographs of the dead body and took the body from canal in his presence. 9. PW-7 Dhulla Singh was declared hostile by the prosecution. He has denied the entire statement recorded by him on 25.11.1996 before the Police (Ex.P/21). 10. PW-8 Nayab Singh. He has said that on 25.11.1996, accused Nawab Ali came to him in his village around 10.30 in the morning and said that he committed mistake and he should be saved. 9. PW-7 Dhulla Singh was declared hostile by the prosecution. He has denied the entire statement recorded by him on 25.11.1996 before the Police (Ex.P/21). 10. PW-8 Nayab Singh. He has said that on 25.11.1996, accused Nawab Ali came to him in his village around 10.30 in the morning and said that he committed mistake and he should be saved. This witness then proceeds to give graphic description of what according to statements made to him by Nawab Ali the accused in which the accused Nawab Ali is stated to have told the witness that they took Krishna Singh in the evening of Asoj-ki-Amavasya (this date falls on 12.10.1996), the accused Nawab Ali along with accused Kalu Ram took deceased Krishna Singh by hiring a jeep gave him lot of liquor to consume and after he was druken, he was throttled to death and when he died, the dead body was thrown by him and Kalu Ram in the canal. The witness then took Nawab Ali accused to Police Station, Anupgarh and handed him over to the Circle Inspector. The Circle Inspector recorded the statement of the witness and took his signature. 11. PW-9 Jagdish. This witness has deposed that on 12.10.1996 at about 8.30 p.m. Nawab Ali came to him with two others and hired his jeep for carrying them to village Dandi. Since the witness did not confirm his earlier statement to the Police (Ex.P/ 22), he was declared hostile by the prosecution. 12. PW-10 Tahal Singh. He has deposed that after one month of the killing of Krishna Singh, he came to know that the murder was committed by Nawab Ali and Kalu Ram. 13. PW-11 Dr. Rajendra Mittal conducted the post mortem of the dead body. He has deposed that when he conducted the post mortem at the site near the canal, body was in a highly decomposed condition and it was not identified by anybody. He has stated that cause of death cannot be stated as the body was in highly decomposed condition. 14. PW-12 Ram Gopal Bishnoi, who was S.H.O. in Khajuwala Police Station on 15.10.1996 proves discovery of dead body from the canal. He recorded that as FIR Ex.P/24, he has proved it. It has also proved the photographs of dead body taken by him. He has deposed that a rope was hanging around the dead body. 15. 14. PW-12 Ram Gopal Bishnoi, who was S.H.O. in Khajuwala Police Station on 15.10.1996 proves discovery of dead body from the canal. He recorded that as FIR Ex.P/24, he has proved it. It has also proved the photographs of dead body taken by him. He has deposed that a rope was hanging around the dead body. 15. PW-13 Kheena Singh Bhati S.H.O. Police Station, Abu Road. He has deposed that he was present when the FIR was lodged which was proved as Ex.P/5. He has deposed that he after recording the FIR Ex.P/5, started investigation and search for the missing Krishna Singh. On 21.11.1996, he received a radiogram in which, report of the dead body which was discovered in the jurisdiction of Khajuwala Police Station on 15.10.1996 was given. Since the description was matching with the description of Krishna Singh given in FIR Ex.P/5, he went to the Police Station, Khajuwala. He took around with Shardul Singh and Roshan Lal, he show the photographs of the dead body to them and then they identified the dead body of Krishna Singh. On the basis of this evidence and documents executed, during the course of investigation, the order of conviction impugned. 16. From the above evidence, it is obvious that in this case, circumstantial evidence and several links in the circumstances are missing. There is no evidence giving sufficient material as to why no report about Krishna Singh being missing was lodged in time earlier. The body recovered in the jurisdiction of Khajuwala Police Station was in a highly decomposed condition and the identification that it was of Krishna Singh was done by brother of the deceased and another witness solely on the basis of cloths found on the body which can be extremely doubtful. There is no evidence nor any explanation forthcoming from the prosecution as to what is the exact outcome of the police investigation conducted in the matter of body found in the jurisdiction of Khajuwala Police Station on 15.10.1996. The possibility of police being closed two cases; one of missing a person and other of the dead body being found by connecting the two and prosecuting the accused, cannot be over-ruled. 17. There are several discrepancies in the evidence of PWs 3 and 5. There is no cogent evidence the manner in which Krishna Singh was taken away by Nawab Singh and Kalu Ram. 17. There are several discrepancies in the evidence of PWs 3 and 5. There is no cogent evidence the manner in which Krishna Singh was taken away by Nawab Singh and Kalu Ram. It is not certain from evidence that Nawab Ali was accompanied by Kalu Ram when the accused took Krishna Singh from his village. 18. Taking into consideration the several discrepancies occurring in the statement of these two witnesses, we find it difficult to believe this as absolute identification. In any event, there is no evidence whatever of this death having been caused by the accused. We find it impossible to believe that the accused who are alleged to have committed murder and nothing was found, would just to confess its commission after two months. In our opinion, there is no evidence whatever on the basis of which conviction can be made or sustained. 19. In the result, the appeals succeed and are allowed. The conviction is set aside. The accused are acquitted, if they are not involved in any other case.Appeals allowed. *******