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2004 DIGILAW 21 (RAJ)

Jaildar Jalladdin v. State of Rajasthan

2004-01-07

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2004
Judgment K.C. Sharma, J.-This criminal appeal under Section 374 Cr.P.C. arises out of the Judgment and order dated March 31, 1998 passed by the Additional Sessions Judge No. 1, Alwar thereby convicting the accused appellant for offence under Sections 302 and 394 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 1000/-, in default thereof , to further undergo 3 months rigorous imprisonment on first count and life imprisonment with a fine of Rs. 3000/-, in default of payment of fine, to further undergo 9 months’ rigorous imprisonment on the second count. 2. The facts leading to the present appeal may be summarised as follows: On 17.1997 at 11.15 PM, Girraj Prasad (PW2), Assistant Sub Inspector of Police recorded Parcha Bayan, Ex.P.7 of Himma while he was admitted in the Surgical Ward of Govt. Hospital, Alwar. On the basis of this Parcha Bayan, a case for offence under Sections 307, 324 and 392 IPC came to be registered at Police Station Shivaji Park Alwar. After a lapse of some time, injured Himma passed away and accordingly Section 302 IPC was added. 3. In the Parcha Bayan, deceased alleged that on the day of incident at 8.00 AN’l he had to purchase a plot and for that purpose he went to the appellant. He had with him Rs. 50,000/-kept in a plastic bag. Appellant Jaildar continued to show him plots in Alwar for whole of the day and in the night at about 10- 10.30 PM the appellant took out a knife and struck it near some factory, as a result of which he fell down and the accused snatched the amount and ran away. 4. In the course of investigation, Police prepared a site plan, Ex.P1 and seized blood smeared soil and controlled soil vide memos Exs. P3 and P4. Police also seized blood stained clothes ot the deceased vide memo Ex.P.11. The dead body was subjected to post mortem examination. PW13 Dr. Amar Singh Rathore conducted autopsy and prepared the post mortem report Ex.P.21. On examination, the doctor noticed following injuries on the dead body of deceased: .1. Incised wound 5cm x 2cm x muscle deep with clotted blood, above thyroid cartilege, in neck transversely placed; .2. Incised wound 5cm x 1cm x muscle deep with clotted blood. Back of chest transversely placed; 3. On examination, the doctor noticed following injuries on the dead body of deceased: .1. Incised wound 5cm x 2cm x muscle deep with clotted blood, above thyroid cartilege, in neck transversely placed; .2. Incised wound 5cm x 1cm x muscle deep with clotted blood. Back of chest transversely placed; 3. Incised wound 6cm x 1cm x muscle deep with clotted blood between both scapula, transversely placed. Dissection - left plura cut 6 x 1 cm with left haemathorex lung collapsed. 4. Incised wound 6cm x 4cm x intestine with clotted blood right side abdomen near umblicle with haemo peritonium about 1000 cc. Mesentry tear 6x1 cm. Mesentang vessels reptured. 5. In the opinion of Dr. Rathore, the cause of death was shock due to injury to small intestine and messentary leading to death due to haemorrhage. Ante-mortem in nature and sufficient to cause death in the ordinary course of nature. .6. On 17.97, accused was arrested vide memo Ex.P. 12. He furnished information (Ex.P.22) under Section 27 of the Evidence Act as regards recovery of Rs. 50000/-and his clothes Pursuant to this information, the police recovered Rs. 50000/-along with a bag vide memo Ex.P13 and his clothes vide memo Ex.P16, which the accused took out from a room. Site plan Ex.P.15 of the place of recovery of was also prepared. The accused .also furnished information, Ex.P.23 as regards recovery of knife and pursuant to this information, police recovered a knife vide memo Ex.P.5. The recovered articles were sent for chemical examination to the Forensic Science Laboratory. The FSL report Ex.P:24 indicates the presence of human blood on the clothes of deceased and accused and the knife etc. 7. Havingcompleted entire formalities, the police submitted a charge sheet against the accused appellant in the court of Additional Chief Judicial Magistrate. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the Court of Sessions. 8. On the basis of evidence and material collecting during investigation and placed before it and after hearing arguments of counsel for the parties, the learned trial court framed charges against the appellant for offence under Sections 302 and 394 IPC. The appellant denied the charges and claimed trial. 9. In order to prove its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. The appellant denied the charges and claimed trial. 9. In order to prove its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. In his explanation, the accused stated that witnesses have falsely involved him on account of enmity. In defence, the accused did not examine any witness. 10. At the conclusion of trial and after hearing the counsel for the parties, the learned trial Judge found the prosecution case as alleged proved and accordingly, vide its Judgment under appeal, convicted and sentenced the appellant in the manner stated hereinabove. Hence this appeal against conviction. 11. We have heard learned counsel for the accused appellant, learned Public Prosecutor and have gone through the impugned Judgment and the evidence on record. 10.12. There is no direct evidence and the entire case solely rests on circumstantial evidence. It is well settled proposition of law that when a case rests solely on circumstantial evidence, such evidence must satisfy the following tests: .(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; .(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and (iii) the circumstances, taken cumulatively, should form, a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 13. In arriving at a conclusion of guilt against the appellant, the learned trial court has relied upon the following circumstances put forth by the prosecution: (1) Parcha Bayan of the deceased, wherein he has alleged that appellant struck knife blow while snatching Rs. 50000/-& ran away. .(2) Accused and deceased were last seen together. .(3) Recovery of Rs. 50,000/-on the information and at the instance of accused. .(4) Recovery of blood stained knife on the information and at the instance of accused. 14. 50000/-& ran away. .(2) Accused and deceased were last seen together. .(3) Recovery of Rs. 50,000/-on the information and at the instance of accused. .(4) Recovery of blood stained knife on the information and at the instance of accused. 14. A glance at the Parcha Bayan (dying declaration), Ex.P7 of deceased Himma makes it clear that it was recorded on 17.97 at 11.15 PM by PW2 Girraj Prasad, ASI and was duly attested by Dr. V.K. Mittal, who at the relevant time was on duty. PW2 Girraj Prasad has deposed that while on patrolling duty along with PW12 Lakhi Ram, Constable he received wireless message that some person was lying in a pool of blood at the bridge of NEB Extension Scheme. Accordingly, he rushed to the place and found one persons lying there in a pool of blood. The injured was in a position to speak and disclosed his whereabouts. He also disclosed the name of assailant as Jaildar. He further disclosed that he and Jaildar had left his village at 8.00 AM. Jaildar had brought him to Alwar for getting a plot purchased. He disclosed that he had brought Rs. 50000/-from his village for purchasing a plot. Jaildar went on showing plots for whole of the day and in the darkness he took him to NEB extension scheme, where Jaildar struck knife blows on his stomach and buttock and snatched away Rs. 50000/-. The witness stated that he, with the help of Constable brought the injured to hospital in a Jeep at 11.15 PM. He then asked the Doctor on duty whether the injured was in a position to make statement. The doctor, in turn, stated that the patient was fit to make his statement and that statement should be recorded in his presence. The witness stated that he recorded the statement of Hinima while he was at bed No. 20 of Surgical Ward, in the presence of doctor on duty. The injured put his thumb impression on Ex.P7. According to this witness, after recording Parcha Bayan, he also recorded the statement under Section 161 Cr.P.C. (Ex.P.8) of injured Hinima. PW12 Lakhi Ram has supported the version of PW2 Girraj. PW9 Dr. V.K. Mittal has categorically deposed that on 17.97 he was posted as Medical Officer in General Hospital. At 11.15 PMthe police personnel of Police Station Shivaji Park brought a person named Hinima, whose intestines were protruded. PW12 Lakhi Ram has supported the version of PW2 Girraj. PW9 Dr. V.K. Mittal has categorically deposed that on 17.97 he was posted as Medical Officer in General Hospital. At 11.15 PMthe police personnel of Police Station Shivaji Park brought a person named Hinima, whose intestines were protruded. He was conscious but was not in a position to walk. He admitted him and provided medical aid. The witness has corroborated the statement of PW2 Girraj Prasad by stating that Parcha Bayan (Ex.P.7) of Hinima was recorded in his presence and that thumb impression of Hinima on the Parcha Bayan was also taken in his presence. According to this witness, he had attested the Parcha Bayan and put his signatures from C to D. The allegation against the appellant contained in Parcha Bayan Ex.P.7 further finds corroboration by the statement of an independent witness, namely, Bhagwan Sahay (PW1). This witness has deposed that on 17.97 at about 10.00 PM while he was at his home, a person in injured condition came to him, requested for help and demanded water. The injured had knife injury on his stomach and blood was oozing out from his stomach. Blood was also oozing out from his neck. The witness stated that deceased Hinimat Singh (Hinima) disclosed that he had come with accused Jaildar to purchase a plot. He also disclosed second name of accused as Jallaluddin and stated that he was a resident of Karoli-ka-bas. The deceased further disclosed that accused was engaged as a private medical practitioner in his village. He also disclosed that accused Jaildar snatched away Rs. 50000/-and was responsible for causing knife blows. 15. From the evidence discussed above, it stands established that it was appellant Jaildar who first inflicted knife injuries to deceased and then snatched away Rs. 50000/-from him which he had brought for purchase of a plot. There is nothing on record to suggest that PW2, Girraj Prasad, AS 1, PW9 Dr. V.K. Mittal and PW1 Bhagwan Sahay Saini are, in any manner related either to the deceased or to the accused, nor had any grudge against the appellant and, therefore, these witnesses can be termed as independent witness. We see no reason to doubt their testimony. 16. V.K. Mittal and PW1 Bhagwan Sahay Saini are, in any manner related either to the deceased or to the accused, nor had any grudge against the appellant and, therefore, these witnesses can be termed as independent witness. We see no reason to doubt their testimony. 16. It is settled law that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW9 Dr. V.K. Mittal very clearly shows that the deceased was conscious and was in a fit state to make a statement. The oniy challenge to the dying declaration was that it was not recorded by the Magistrate. There cannot be any dispute that the deceased died within half an hour of recording his statement and therefore, apparently there was no occasion to call the Magistrate so as to have the statement of deceased recorded by him. The evidence of PW9 Dr. Mittal in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been questioned in the cross examination. That being so, it should be held that deceased was in a fit state of mind to make a declaration. As regards truthfulness of the statement, we do not find any evidence to suggest that any one could have prompted the deceased to make false or incorrect statement, inasmuch none of the relations of the deceased was present at the time of making statement. Thus we hold that the dying declaration of the deceased was voluntary, truthful and free from any effort to induce the deceased to make a false statement. The trial court was right in relying upon the dying declaration as one of the strongest circumstance in basing conviction. The argument of the learned counsel for the appellant that the Parcha Bayan recorded by a police person cannot be said to be a dying declaration and it should not have been relied upon by the learned trial court in basing conviction, has no force and stands rejected for the reasons recorded above. 17. Asregards the second circumstance viz., the accused and the deceased were last seen together on the day of incident, the trial court has relied upon the evidence of PW5 Mst. Asari and PW6 Razak. 17. Asregards the second circumstance viz., the accused and the deceased were last seen together on the day of incident, the trial court has relied upon the evidence of PW5 Mst. Asari and PW6 Razak. PW5 Mst. Asari, wife of the deceased has specifically deposed that accused was engaged as a medical practitioner in her village and during those days her husband and the accused came into close contact. According to her, on the day of incident the accused induced and took her husband with him to Alwar for getting a plot purchased. Her husband had left the house in the morning and he had with him Rs. 50000/-. She clarified that deceased Himma having Rs. 50000/-with him had left the house in the company of Jaildar. In cross examination, the witness has stated that accused used to visit her house. Her husband had informed her about purchase of some plot through accused Jaildar, few days prior to the incident. She was cross examined at length but nothing could be elicited so as to doubt her testimony. PW6 Razak has supported the statement of PW5 Mst. Asari, rather he has given the description of the notes which the deceased had taken away with him while leaving in the company of accused. Learned counsel, though has argued that the evidence of the witnesses as regards the accused and deceased having been seen together is not trustworthy, but could not point out any reason as to how the evidence of PW5 Asari and PW6 Razak is not worthy of credence. Having carefully scrutinized the evidence of PW5 Asari and PW6 Razak, we are of the considered view that their evidence is sufficient to establish that deceased and the appellant were last seen together on the day of incident and the trial court was right in replying upon the testimony of these two witnesses considering them to be reliable and trustworthy. 18. Learned counsel for the appellant has further argued that as per the declaration of deceased, he left the house in the early morning and both of them (accused and the deceased) continued to have search for the plot and met numerous persons during whole of the day, but the investigating agency has not collected any evidence as to which places the accused and deceased visited and whom they contacted. It is true that the Investigating Officer has not cared to collect evidence as to which of the places the accused and deceased visited and whom they contacted during whole of the day, but in our view this lacuna on the part of investigating agency is not of much significance in view of the evidence of PW5 Asari and PW6 Razak who have categorically deposed that deceased and accused had left the house together on the day of incident in the early morning for the purposes of getting a plot purchased. 19. Now we come to the third circumstance. The accused was arrested after two days of the incident. He furnished information, Ex.P22 as regards recovery of Rs. 50000/-which he had looted from the deceased. He got recovered the aforesaid sum kept concealed in an iron tank lying in a room of the house of his Bhabhi, where accused himself was residing. PW14 Kanhaiya Lal Meena, Investigating Officer has deposed that he effected the recovery in the presence of PW3 Ali Mohd. and PW6 Razak. The 1.0. has deposed that he recovered the aforesaid sum of Rs. 50000/-from the house of Bhabhi of the accused. He deposed that the bag from which the accused took out the notes had blood stains and he had seized that blood stained bag vide memo Ex.P. 14. Both the witnesses of seizure of notes, bag and the memo of place of recovery have fully supported the recovery of a sum of Rs. 50000/-at the instance of accused. These witnesses have admitted their signatures on memos Exs. P13, 14 and 15. Thus, in our view the prosecution has been successful in proving the third circumstances. 20. Learned counsel for the appellant has contended that there was serious lacuna on the part of investigating agency, inasmuch as the Investigating agency has failed to collect any evidence to establish as to how and by what source the deceased was possessing the huge amount of Rs. 5 0000/-, particularly when deceased was admittedly a very poor person belonging to weaker section of the society. Learned counsel argued that as per the evidence of PW5 Asari, the deceased got some of the amount in question from one Husaina as against mortgaging his land, but the 1.0. has not cared to enquire about this fact from Husaina. 21. 5 0000/-, particularly when deceased was admittedly a very poor person belonging to weaker section of the society. Learned counsel argued that as per the evidence of PW5 Asari, the deceased got some of the amount in question from one Husaina as against mortgaging his land, but the 1.0. has not cared to enquire about this fact from Husaina. 21. True it is that the investigating officer has not bothered to collect evidence in this regard or atleast to record the statement of Husaina. It is not at all material as to how the deceased was in possession of Rs. 50000/-. What is relevant is the recovery of the above sum, which according to the prosecution case belonged to the deceased and were recovered from the possession of appellant. As stated above, the accused, after his arrest, furnished information as to the recovery of Rs. 50000/-and got the same recovered from the house of his Bhabhi, where he was residing. Nothing has come on record to show that this amount belong to some one else than the deceased, nor the appellant has claimed the recovered amount to be his own. In this view of the matter, the argument of the learned counsel has no legs to stand and is accordingly rejected. 22. Now remains the last circumstance as to the recovery of blood stained knife. From the evidence on record, it appears that the Investigating Officer recovered blood stained knife vide memo Ex.P.5 on the information and at the instance of accused, in the presence of PW1 Bhagwan Sahay and Mormal. Moral has not been examined. However, PW1 Bhagwan Sahay has fully proved the recovery of blood stained knife at the instance of accused. The recovered knife was sent to FSL for examination. A glance at the FSL report Ex.P24 indicates that though blood group could not be determined but the blood stains on the knife marked Ex.8 contained in packet marked F was found to be of human origin. Thus there appears to be no reason to doubt the recovery of knife. 23. The recovered knife was sent to FSL for examination. A glance at the FSL report Ex.P24 indicates that though blood group could not be determined but the blood stains on the knife marked Ex.8 contained in packet marked F was found to be of human origin. Thus there appears to be no reason to doubt the recovery of knife. 23. There is one more additional link to strengthen the prosecution case that the blood stained clothes of the deceased, blood smeared soil collected from the place of incident, Tebmed and bag were also sent by the investigating agency to the Forensic Science Laboratory and the FSL report, Ex.P.24 clearly indicates that the blood on all these articles, on serological examination, was found to be of human origin. 24. Thus, the above circumstances show that the prosecution has established beyond all reasonable doubt that these incriminating circumstances indicate a hypothesis consistent only with the guilt of the accused and each and every such circumstance forms a link completing a chain of circumstances without break establishing the involvement of the appellant in the murder of Himma and in looting Rs. 5 0000/-from him. 25. Resultantly, the appeal fails and is hereby dismissed. The conviction of the appellant under Section 302 and 394 IPC and the sentences awarded thereunder are maintained.