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2004 DIGILAW 467 (RAJ)

Mahesh Kumar v. State of Rajasthan

2004-03-25

F.C.BANSAL, SHIV KUMAR SHARMA

body2004
Honble BANSAL, J.–This appeal is directed against the judgment dated October 16, 2001 passed by learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur whereby appellant Mahesh Kumar has been convicted for the offences under Sections 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further undergo simple imprisonment for three months and rigorous imprisonment for three years and a fine of Rs. 100/-, in default to further suffer simple imprisonment for three months respectively. The appellant has been acquitted of the charge under Section 380 IPC. However learned Additional Sessions Judge has acquitted co-accused Deepak Rajput of all the charges. (2). The facts relevant for the disposal of the instant appeal are that on November 23, 1998 at around 5.15 p.m. when PW1 Jagdish Chandra Katil, the then Executive Director, R.F.C. came back at his residence from his office, he found his domestic servant Satyanarain @ Kaluram missing from his house. He also found one speaker and one V.C.R. missing whereupon he informed the SHO, P.S. Jawahar Nagar, Jaipur about it over the phone. Thereafter PW1 Jagdish Chandra sent his driver and gardener to the village of Satyanarain for his search and to inform his parents about the incident. Satyanarain was not found in his village. The driver and gardener of PW1 Jagdish Chandra brought the brother of Satyanarain to the residence of Jagdish Chandra. In the morning of 24.11.98, the body of said Satyanarain was found inside the underground water tank situated in the courtyard of the house of PW1 Jagdish Chandra whereupon police was informed about the recovery of the dead body of Satyanarain. On reaching on the spot, the SHO, P.S. Jawahar Nagar, Jaipur took out the dead body of Satyanarain. A written report Ex.P1 was submitted at 9.30 a.m. on 24.11.98 by PW1 Jagdish Chandra at his residence to the SHO, P.S. Jawahar Nagar, Jaipur. On the basis of written report Ex.P1, proceedings under Section 174 Cr.P.C. were initiated. The SHO drew up the Inquest Panchnama Ex.P2. The dead body was sent to S.M.S. Hospital, Jaipur for autopsy which was conducted by a Medical Board consisting of Dr. Ashok Mathur, Dr. Sheetal Jain and Dr. M.L. Kawat at 1.45 p.m. on the same day and prepared Post-mortem Report Ex.P.17. The SHO drew up the Inquest Panchnama Ex.P2. The dead body was sent to S.M.S. Hospital, Jaipur for autopsy which was conducted by a Medical Board consisting of Dr. Ashok Mathur, Dr. Sheetal Jain and Dr. M.L. Kawat at 1.45 p.m. on the same day and prepared Post-mortem Report Ex.P.17. On the same day at 3.30 p.m. PW2 Sitaram Sain, brother of deceased Satyanarain @ Kaluram S/o Ramniwas, by caste Nai, R/o- Aakeda Chod, Rampura Dabdi, Thana Chomu, District Jaipur submitted a written report Ex.P6 to PW17 Ravi Shekhar Mishra, SHO, P.S. Jawahar Nagar at mortuary of S.M.S. Hospital. On the basis of written report Ex.P6., Incharge, P.S. Jawahar Nagar registered a case under Section 302 IPC and investigation commenced. The Investigation Officer came to the spot and inspected the scene of occurrence and drew up the Site Plan Ex.P3. Chance prints were lifted from the glass of wardrobe, T.V. stand and V.C.R. The appellant and co-accused Deepak were arrested on 25.11.98 and 29.11.98 respectively. On the disclosure statement of appellant Mahesh Kumar and at his instance, one Music System, C.D. Player and three C.D. cassettes were recovered from his room on 28.11.98 and the I.O. prepared Recovery Memo Ex.P1. On the disclosure statement of co-accused Deepak Rajput and at his instance, one V.C.R., three C.D. Cassettes, one towel etc. were recovered from his room on 30.11.98 and the I.O. prepared Recovery Memo Ex.P15. The I.O. also recovered two speakers, Rs. 700/- and four keys on the disclosure statement of appellant Mahesh Kumar and he prepared Recovery Memo Ex.P16. Statements of the witnesses were recorded under Section 161 Cr.P.C. Chance prints and finger prints of both the accused were sent to Finger Print Bureau, Rajasthan, Jaipur for comparison. The report of Finger Print Bureau is Ex.P56. On completion of investigation, charge-sheet was laid against the appellant and co-accused Deepak in the Court of Judicial Magistrate No. 19, Jaipur City who committed the case to the Court of learned Sessions Judge, Jaipur City for trial. On transfer the file was received by Special Judge (Sati Niwaran) Cum Additional Sessions Judge, Jaipur City who framed charges under Sections 302, 302/34, 201 and 380 of the Indian Penal Code against both the accused. The appellant as well as co-accused Deepak pleaded not guilty and claimed trial. On transfer the file was received by Special Judge (Sati Niwaran) Cum Additional Sessions Judge, Jaipur City who framed charges under Sections 302, 302/34, 201 and 380 of the Indian Penal Code against both the accused. The appellant as well as co-accused Deepak pleaded not guilty and claimed trial. During trial the file was transferred to the Court of learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. (3). In order to prove its case the prosecution examined as many as 18 witnesses. In their statements recorded under Section 313 Cr.P.C., the appellant and co-accused Deepak pleaded innocence and false implication. However no evidence was adduced in defence. (4). Learned Additional Sessions Judge on hearing the final submissions, convicted and sentenced the accused appellant Mahesh Kumar and acquitted co-accused Deepak Rajput as indicated here- in-above. (5). We have heard learned Amicus Curiae for the appellant, learned Public Prosecutor and with their assistance, carefully scanned and scrutinized the material on record. (6). In the absence of any direct evidence, the prosecution relied upon the following circumstances to prove the guilt of the appellant:- (i) The death of deceased Satyanarain was homicidal. (ii) The deceased was last seen in the company of the appellant. (iii) Iron-pipe was recovered on the disclosure statement and at the instance of the appellant. (iv) Finger prints of the appellant were found on the glass of wardrobe, T.V. stand and V.C.R. of the house of PW1 Jagdish Chandra. (7). Now we proceed to deal with each piece of circumstantial evidence relied upon by the prosecution. (i) Homicidal death of deceased Satyanarain. (8). PW12 Dr. Ashok Mathur, Medical Jurist, S.M.S. Hospital, Jaipur who was one of the members of the Medical Board, stated that on 24.11.98 he conducted post-mortem examination on the dead body of Satyanarain and found the following injuries on his person:- EXTERNAL INJURIES (1) Abrasion reddish 4cm. x 3cm. on forehead mid part. (2) Abrasion 4cm. x 1/2cm. on left shoulder reddish. (3) Diffused swelling present over occipital region extending upto cervical region. INTERNAL INJURIES On dissection-Underneath scalp haematoma present over occipital region. More on right side on further exploration the muscle haematoma was seen over cervical region which was also diffused into the adjacent muscles of neck posteriorly and laterally. There was a fracture of cervical vertebra (C1) with massive haematoma around. INTERNAL INJURIES On dissection-Underneath scalp haematoma present over occipital region. More on right side on further exploration the muscle haematoma was seen over cervical region which was also diffused into the adjacent muscles of neck posteriorly and laterally. There was a fracture of cervical vertebra (C1) with massive haematoma around. On further dissection spinal cord found contused at the site of fracture. Communited fracture of posterior cranial fossa of right side was seen on further dissection of head. Membrane at the site fracture found lacerated. On further exploration, sub-dural haematoma was seen over right side of occipital lobe with contusion. Contusion also seen over pons and cerebellum inferior surface. Dr. Mathur further stated that all the injuries were ante-mortem, in nature and were sufficient in the ordinary course of nature to cause death. He also stated that in the opinion of the Medical Board, the cause of death was Coma brought about as a result of ante-mortem injuries to skull and brain with spinal cord. Post- mortem Report Ex.P17 was prepared. (9). Learned Amicus Curiae did not challenge the veracity of Dr. Mathur. We also see no grounds to discard the testimony of Dr. Mathur. Therefore, it has been established by the prosecution that deceased Satyanarain met with the homicidal death. Thus, first circumstance relied upon by the prosecution stands proved. (ii) The deceased was last seen in the company of the appellant. (10). To prove this circumstance, the prosecution has placed reliance on the statements of PW1 Jagdish Chandra and PW3 Balbhadra Dixit, driver. Learned Additional Sessions Judge also has held this circumstance proved. PW1 Jagdish Chandra stated that on his return from his office, when he found his domestic servant Satyanarain missing then he called Pramod Chowkidar from the house under construction situated in front of his house and enquired about Satyanarain. Pramod told him that in his (Jagdish Chandra) absence Mahesh alongwith one other person had come at his residence and after sometime he saw both of them going out of his residence alongwith Satyanarain. PW3 Balbhadra Dixit supported the version of PW1 Jagdish Chandra. (11). Pramod was not examined by the prosecution. In our opinion, the evidence of PW1 Jagdish Chandra and PW3 Balbhadra Dixit is not admissible being hearsay. PW3 Balbhadra Dixit supported the version of PW1 Jagdish Chandra. (11). Pramod was not examined by the prosecution. In our opinion, the evidence of PW1 Jagdish Chandra and PW3 Balbhadra Dixit is not admissible being hearsay. In State (Collector, Central Excise) vs. Papas Kumar Shome (1), the Orissa High Court has observed as under:- ``In any view of the matter, when a witness testifies as to the information having been given to him by another and the latter is not examined, the testimony of the witness is not admissible being hearsay. In this connection, reference may be made to the observation of the Supreme Court in AIR 1983 SC 906 : 1983 Cri LJ 1276 Bhugdomal Gangaram vs. State of Gujrat. (12). In these circumstances we are of the considered view that the prosecution has failed to prove that the deceased was last seen in the company of the appellant. Apart from that, it is not the case of the prosecution that the deceased was seen by Pramod in the company of the appellant when he came back at the residence of PW1 Jagdish Chandra. It is not believable that Satyanarain was killed at some other place and thereafter his dead body was brought to the residence of PW1 Jagdish Chandra and thrown in the water tank. (13). PW1 Jagdish Chandra also stated that on being informed by Pramod he called appellant Mahesh and he admitted before him that at about 10.30 he had come to Satyanarain at his (Jagdish Chandra) residence and after two hours both he and Satyanarain went to a house situated near Maheshwari School, Jawahar Nagar in search of a job. The appellant also stated that the said house was locked and, therefore, Satyanarain left that place asking him to sit and wait there and he would come by 4.00 p.m. From this statement also, it cannot be held that the deceased was last seen in the company of the appellant. In out opinion, Satyanarain was killed by inflicting injuries on his person at the residence of PW1 Jagdish Chandra and thereafter his dead body was thrown in the underground water tank. The prosecution has failed to adduce evidence to prove the fact that the deceased was last seen in the company of the appellant at the residence of PW1 Jagdish Chandra. (14). The prosecution has failed to adduce evidence to prove the fact that the deceased was last seen in the company of the appellant at the residence of PW1 Jagdish Chandra. (14). For the aforesaid reasons, we have come to the conclusion that the prosecution has failed to prove this circumstance of last seen. (iii) Recovery of Iron-pipe. (15). On close and careful scrutiny of the prosecution evidence regarding recovery of iron-pipe, we have come to the conclusion that the prosecution has also failed to prove it. As per the prosecution evidence, iron-pipe was recovered on the disclosure statement of the appellant from the `Gumti wherein electric motor of water tank was installed on 27.11.98. The site was inspected by the I.O. on 24.11.98. In Site Plan Ex.P3 also, the said `Gumti has been shown. Photographs of the spot were also taken on the same day. The body of the deceased was found in the water tank on 24.11.98. If that is so, how the investigating agency missed noticing the iron-pipe inside the `Gumti on 24.11.98, has not been explained by the prosecution. From the evidence in this regard laid by the prosecution, there is nothing to show that the iron-pipe was concealed in such a manner that the I.O. could not have noticed it on 24.11.98 itself. In these circumstances, we are of the considered view that the prosecution has failed to prove that iron-pipe was recovered at the instance and on the disclosure statement of the appellant. That apart, it has not been proved by the prosecution that the iron-pipe was stained with human blood. Therefore, the alleged recovery of iron-pipe does not help the prosecution as circumstantial evidence to prove the charge against the appellant. Thus, the prosecution has failed to prove this circumstance also. (iv) Finger prints of the appellant were found on the glass of wardrobe, T.V. stand and V.C.R. of the house of PW1 Jagdish Chandra. (16). As per the prosecution, finger prints of the appellant were found on the glass of wardrobe, T.V. stand and V.C.R. of the house of PW1 Jagdish Chandra. On comparison by Rajasthan Finger Print Bureau, it was found that the chance prints found on the said articles were similar and identical with the specimen finger prints of the appellant. (16). As per the prosecution, finger prints of the appellant were found on the glass of wardrobe, T.V. stand and V.C.R. of the house of PW1 Jagdish Chandra. On comparison by Rajasthan Finger Print Bureau, it was found that the chance prints found on the said articles were similar and identical with the specimen finger prints of the appellant. It is clear from the prosecution evidence that the appellant used to visit the deceased at the residence of PW1 Jagdish Chandra prior to the incident. Therefore, the above circumstance cannot said to be incriminating circumstance against the appellant. (17). For the above discussions, we have come to the conclusion that out of four circumstances which have been relied upon by the prosecution, only one circumstance i.e. homicidal death of the deceased has been proved by the prosecution. It is well established that in a case of circumstantial evidence, the prosecution must establish each circumstance firmly by cogent evidence and all these circumstances, taken together, should form a chain pointing towards the guilt of the accused and the cumulative effect of the circumstances must lead to no other inference but the guilt of the accused. It would be pertinent to mention here that in the opinion of the Trial Court also, the prosecution has failed to prove the most important circumstance i.e. recovery of stolen articles at the instance and on the disclosure statement of the appellant from his room and the appellant has been acquitted of the charge under Section 380 of the Indian Penal Code by the Trial Court. Therefore, we are of the opinion that even if circumstance No. (i) and (iv) taken together, they do not form a complete chain pointing towards the guilt of the accused. Thus, in our considered view, the prosecution has failed to prove its case against the appellant and the learned Additional Sessions Judge has erred in convicting the appellant for the offences under Sections 302 and 201 of the Indian Penal Code. (18). As a result of the above discussions, we allow the appeal and set aside the Judgment and conviction of sentence dated October 16, 2001 of the learned Additional Sessions Judge No. 1 (Fast Track), Jaipur City, Jaipur. We acquit appellant Mahesh Kumar of the charges under Sections 302 and 201 of the Indian Penal Code. (18). As a result of the above discussions, we allow the appeal and set aside the Judgment and conviction of sentence dated October 16, 2001 of the learned Additional Sessions Judge No. 1 (Fast Track), Jaipur City, Jaipur. We acquit appellant Mahesh Kumar of the charges under Sections 302 and 201 of the Indian Penal Code. The appellant who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.