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2003 DIGILAW 1009 (RAJ)

Choturam v. State of Rajasthan

2003-07-22

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2003
Honble K.C. SHARMA, J.–This criminal appeal by accused Choturam arises out of the judgment and order dated 3.2.2000 passed by the learned Additional Sessions Judge, Shahpura (Jaipur), by which the learned Addl. Sessions Judge having found the prosecution story as alleged true and charges having proved beyond doubt, convicted and sentenced the appellant in the manner stated below: Under Sec. 302 IPC Life imprisonment with a fine of Rs. 500/-, in default thereof, to further undergo 15 days rigorous imprisonment. Under Sec. 201 IPC Seven years rigorous imprisonment with fine of Rs. 100/-, in default thereof, to further undergo 5 days simple imprisonment. Under Sec. 377 IPC Life Imprisonment with a fine of Rs. 500/-, in default thereof, to further undergo 15, days simple imprisonment. (2). The present case solely rests on circumstantial evidence. As per the prosecution, PW 1 Ganga Charan Yadav lodged written report, Ex.P1 at Police Station Virat Nagar, Jaipur on 25.7.97 at 11.30 AM with regard to an incident alleged to have taken place in the night intervening 23/24.7.97. As per the written report, the complainant informed the police that on 23.7.97 he had gone to village Kumar, leaving behind his children. On 24.7.97 when he returned at his Farm along with T.C. of his child, he found that his son Gajendra who was sleeping in the last night at the Farm was missing in the morning an on search he found the dead body of his son floating on the water in the well. We noticed that hands of his son were tied with some cloth. He suspected murder of his son by some body. (3). Pursuant to the above written report, police registered a case for offence under Secs. 302 and 201 IPC vide FIR, Ex.P2 and rushed to the place of incident and prepared site plan, Ex.P.3 with its description and the inquest report, Ex.P5. (4). The investigation was taken up by PW 11 Richpal Singh, SHO of the concerned Police Station. Post mortem examination was also conducted by the board consisting of Drs. S.K. Sardana and PW 6 Dr. Ramesh Chand Sharma, the report of which is Ex.P.8. The duration of death from the time of examination was found to be 36 to 48 hours. In the course of post mortem examination, the doctor noticed redish white discharge around anus and swelling around anus, mainly on right side. S.K. Sardana and PW 6 Dr. Ramesh Chand Sharma, the report of which is Ex.P.8. The duration of death from the time of examination was found to be 36 to 48 hours. In the course of post mortem examination, the doctor noticed redish white discharge around anus and swelling around anus, mainly on right side. He also noticed white discharge present over posterior part of under-wear on inner aspect. The doctors took slides from the discharge present on the underwear and around anus and after sealing the same handed over the sealed packets to the Investigating Officer for examination. Accordingly, Section 377 IPC was also added. (5). In the course of investigation, accused Chotu Ram was arrested and was subjected to medical examination by the board. As per the report Ex.P9 it was found that peripheral border of proxymal part of glans of penis was contused with radish-blue discoloration and errosions were also present over this part. On retraction of prepuce smegma was not found present. As per the report (Ex.P.13) of the FSL, human semen was detected on the Underwear, Baniyan and pant of the appellant, marked Exhibits 5,6 and 8, contained in packet marked `C. The nails of the appellant were also examined for the presence of blood. On chemical examination nails showed presence of traces of blood and its report is Ex.P.14. As per FSL report, Ex.P.15 human blood was found over Nicker of the victim and Baniyan and underwear of the accused appellant. (6). On completion of investigation, police submitted a charge sheet against the accused appellant in the court of learned Judicial Magistrate, who in turn, committed the case to the court of Sessions. (7). The learned Sessions Judge, on the basis of evidence and material collected during investigation and placed before it, framed charges against the accused appellant. The appellant denied the charge and claimed trial. (8). During trial, the prosecution examined as many as 11 witnesses and got exhibited some documents. Therefore, the accused was examined under Section 313 Cr.P.C. After conclusion of trial, the learned trial court found the charges established against the appellant and accordingly convicted and sentenced him in the manner stated hereinabove. Hence this appeal against conviction and sentence. (9). We have heard learned counsel for the parties and have carefully gone through the impugned judgment, the evidence and the material available on record. (10). Hence this appeal against conviction and sentence. (9). We have heard learned counsel for the parties and have carefully gone through the impugned judgment, the evidence and the material available on record. (10). As stated above, there is no direct evidence and the case depends on circumstantial evidence. From the evidence on record, we find the following circumstances; 1. The presence of accused appellant Chotu Ram at the Farm house of deceased, in the night prior to the day of recovery of dead body of deceased from the well; 2. Presence of injury on the anus of deceased, presence of semens on the underwear, baniyan and pant and the injury on the penis of accused; 3. Recovery of dead body on the next day and the injuries noticed by the doctors on the person of dead body. 4. The hands of the dead body were tied by `Payjama at the back side. (11). PW 1 Ganga Charan, father of the deceased who is author of the FIR has deposed that on the day of incident and gone to his village to collect T.C. of his son deceased Gajendra. On the next day at about 2.00 PM, when returned to the Farm, his wife informed that Gajendra was missing since morning. He made search nearby village, but of no avail. On the next day when Shyam Singh went to the will for taking bath, he saw the dead body floating on the water. (12). As regards the presence of accused appellant at the Farm in the night prior to the recovery of dead body, PW 2 Smt. Kripa Devi, Mother of the deceased has deposed that her husband had gone to village Kamra (Mathura) to collect the TC of children. She stated that since there was rumour of there being ghost at the Farm and they were feared of, therefore, he husband while leaving for kamra had asked Prahlad to sleep at the Farm. According to this witness, she also with her daughters slept inside the house, while boys slept in the corridor. She stated that Dharmveer Slept on a separate coat and Prahlad and Chotu sleep together on another coat. As per the witness, whenever her husband used to go out, Prahlad and Chotu used to sleep at her house. According to this witness, she also with her daughters slept inside the house, while boys slept in the corridor. She stated that Dharmveer Slept on a separate coat and Prahlad and Chotu sleep together on another coat. As per the witness, whenever her husband used to go out, Prahlad and Chotu used to sleep at her house. In the morning, he daughter informed that Gajendra was not present there, when Lalli (daughter of the witness) asked Dharmveer and Chotu about Gajendra, Chotu informed that Gajendra has gone to attend the call of nature. Ultimately, it was on the next day that his dead body could be found floating in the well when Shyam Singh went to the well for taking bath, he saw the dead body floating on the water. (13). PW 3 Mst. Laxmi (sister of deceased Gajendra) has stated similar to what her mother PW 2 Kripa Devi has stated and thus laxmi has supported the statement of the mother. Witnesses Dharamveer and Prahlad have also certified the presence of appellant chotu Ram. The apart, the appellant in his explanation under Sec. 313 Cr.P.C. has admitted his presence at the Farm on the fateful night. (14). Thus, the fact that accused appellant Chotu along with Dharamveer, Prahlad and deceased Gajendra was present at the Farm in the night prior to the day of recovery of dead body and all of them had slept there stands well established form the evidence of above witnesses, namely Mst. Kripa Devi, Mst. Laxmi Prahlad and Dharamveer as also the admission of accused appellant. (15). Now we have to examine the evidence as regards conviction of appellant under Sec. 377 IPC. Undisputedely, Dharmveer and Prahlad were also present along with appellant Chotu Ram and deceased Gajendra at the Farm on the fateful night. Before we proceed the discuss the evidence on this aspect of the matter, it may be stated that since Dharmveer and Prahlad were also present along with appellant Chotu Ram and, therefore, the investigating agency with a view to find out whether or not these two persons were also involved in the commission of unnatural offence with the deceased, got both the persons medically examined and nothing could be found which may suggest that Dharamveer and Prahlad were also involved in commission of sodomy. Hence, the possibility of these two persons in the commission of sodomy stands ruled out. (16). Hence, the possibility of these two persons in the commission of sodomy stands ruled out. (16). The trial court after discussing the medical evidence, concluded that it was accused appellant Chotu Ram who committed sodomy with the deceased and therefore was guilty of the offence under Sec. 377 IPC. We have also scrutinized the medical evidence. The doctors who conducted autopsy on the dead body noticed redish white discharge around anus and swelling around anus, mainly on right side. he also noticed white discharge present over posterior part of under-wear on inner aspect. The doctors took slides from the discharge present on the underwear and around anus and after sealing the same handed over the sealed packets to the Investigating Officer for examination. As per the evidence of PW 6 Dr. Ramesh Chand Sharma there was injury in the anus of deceased and in the opinion of doctor such injury could be the result of sodomy Now the fact remains as to whether appellant Chotu is guilty of committing such offence. To find out the truth, appellant Chotu Ram was also subjected to medical examination. PW 6 Dr. Ramesh Chand Sharma has stated that he medically examined Chotu Ram and found him capable of sexual intercourse. He stated that there were signs of redness on the upper part of penis of Chotu Ram and abrasion was also present. On retraction of prepuse smegma was also not found present. The doctor categorically deposed not found present. The doctor categorically deposed that injury found in the anus of deceased could be possible as a consequence of unnatural offence. Similarly the injury of the nature found on the penis of the appellant could possibly be the result of sexual intercourse. We see no reason to disbelieve the medical evidence. (17). It may also be added that the accused appellant has not been able to offer any explanation as regards the injury found on his penis. The possibility of the injury of the nature found on the penis of accused by sexual intercourse with his wife is also ruled as the accused is a married man having three children and the doctor has categorically opined that such injury could be the result of intercourse with the virgin lady. The possibility of the injury of the nature found on the penis of accused by sexual intercourse with his wife is also ruled as the accused is a married man having three children and the doctor has categorically opined that such injury could be the result of intercourse with the virgin lady. One more circumstance that need to be noticed is that the accused appellant while admitting his presence at the Farm on the fateful night has offered false explanation that deceased Gajendra was not present at the Farm on the fateful night, inasmuch as on being asked by the sister of the deceased, the appellant himself replied that Gajendra has gone to attend the call of nature. It is true that there is no direct evidence but the circumstances enumerated above are sufficient to point to the inevitable conclusion that it is the appellant only who committed sodomy with the deceased. In this view of the matter, we have no hesitation in holding that appellant Chotu Ram is guilty of having committed offence under Section 377 iPC and the learned trial court was right in holding the appellant guilty of committing offence under Sec. 377 IPC. (18). Now the question that remains for our consideration is, whether on the basis of circumstances available on record, the conviction of the appellant under Section 302 and 201 IPC can be sustained? (19). We have already held that it was accused appellant Chotu Ram who was present at the Farm on the fateful night and is guilty of having committed sodomy with the deceased. Thus, his physical presence at the concerned Farm along with deceased Gajendra and others, prior to the recovery of dead body of Gajendra stands established. While basing conviction of the appellant under Section 302 and 201 IPC, the trial court has taken into consideration the circumstances, viz., the presence of accused appellant at the Farm, commission of unnatural offence by him with the deceased, the injuries found on the person of deceased, the hands of the deceased found to be tied with `Payjama. (20). The prosecution case is that firstly, the accused took away the deceased from the cot, committed sodomy with the deceased and thereafter he murdered the deceased, and threw his dead body into the well so as to cause the evidence of murder disappear. (20). The prosecution case is that firstly, the accused took away the deceased from the cot, committed sodomy with the deceased and thereafter he murdered the deceased, and threw his dead body into the well so as to cause the evidence of murder disappear. Thus there are two offences, the commission of sodomy and the commission of murder. Now it has to be seen whether commission of sodomy and murder form part of one transaction. Having scanned the entire evidence and material on record, we do not find either direct or circumstantial evidence so as to draw any inference that the murder was also committed by the appellant. The cause of death has been indicated as by shock due to spinal cord injury. As regards the injuries found on the person of deceased, though the same were ante mortem in nature, the doctor who conducted autopsy has deposed that such injuries could be the result of fall into the well. It is true that the hands of deceases were found tied at the back with `Payjama. From the evidence on record, the only fact that stands proved is that the said `Payjama belonged to PW 8 Dharamveer. However, there is no evidence to suggest as to how it came in possession of the appellant and the appellant tied the hands of deceased with that `Payjama. The inference of sodomy has been drawn by us as against the appellant in view of the fact that he was found to be in the company of deceased and others at the Farm on the fateful night, coupled with the medical evidence discussed above. In these circumstances it is difficult for us to guess in what manner and in what circumstances the deceased may have been murdered and then thrown or droned after the incident of sodomy may have taken place. There may be possibility of a different incident having taken place resulting in death of the deceased. The mere fact that dead body was found floating on the water in a well is not a circumstances which may lead to irresistible inference that the appellant and none else was responsible for drawing of the deceased. The dead body having found in a well does not appear to be a direct or indirect result of the incident of sodomy. The dead body having found in a well does not appear to be a direct or indirect result of the incident of sodomy. It cannot be said that it is a circumstance with is wholly incompatible with the innocence of the accused appellant so far as the charges under Section 302 and 201 IPC are concerned. The finding of the trial court as regards conviction of the appellant under sections 302 and 201 IPC, in our view, is based on surmises. We are unable to hold that commission of sodomy and murder form part of one transaction. (21). Resultantly, the appeal stands partly allowed. The conviction of appellant Chotu Ram for offence under Sections 302 and 201 IPC and the sentences awarded thereunder by the trial court are set aside. However, conviction of appellant Chotu Ram for offence under Section 377 IPC is maintained. As regards sentence, keeping in view the entire facts and circumstances of the case, we deem it just and proper that the ends of justice would be met if the appellant is sentenced to a term of 10 years. Accordingly, while maintaining conviction of the appellant under Section 377 IPC, instead sentencing him to life imprisonment, we sentence him to under go 10 years rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine, to further undergo sentence of 15 days simple imprisonment.