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2005 DIGILAW 148 (RAJ)

RAMDAYAL v. STATE OF RAJASTHAN

2005-01-17

DALIP SINGH, SHIV KUMAR SHARMA

body2005
Judgment SINGH, J, J. ( 1 ) THE aforesaid appeals have been filed by the accused-appellant. First appeal being D. B. Criminal Appeal No. 66/ 2000 has been filed through the counsel and the second appeal being D. B. Criminal Jail appeal No. 1009/2003 was sent by post from the jail by the accused appellant. Since both these appeals are by the same accused and against the same judgment, therefore, they are being decided by this common judgment. ( 2 ) THE accused-appellant has preferred these appeals against the impugned judgment dated 8-9-2000 passed by the Sessions judge, Tonk in Sessions Case No. 87/1997 convicting and sentencing the appellant to imprisonment for life for offence under Section 302, IPC along with fine of Rs. 500/-and in default of payment to further undergo ten days imprisonment. The accused appellant was further convicted and sentenced for offence under Sections 201 and 364, IPC for five years rigorous imprisonment along with fine of Rs. 500/- and in default of payment of fine to further undergo ten days imprisonment. All the sentences were ordered to run concurrently. ( 3 ) THE brief facts giving rise to these appeals are that on 2-8-1997 a minor boy Kalu s/o Girraj went missing and a report Exhibit P-1 to this effect was lodged by P. W. 1 girraj Prasad at Police Station Niwai, District Tonk. In the said report, it was stated by P. W. 1 Girraj Prasad, father of the missing boy, that at around 5-30 p. m. on 2-8-1997 his boy aged about 4 years has been missing and he requested that boy be traced out. In the report the description of the boy and the cloths which he was wearing was also given. It was also stated that his name is Kalu and he is wearing a white shirt and a black "kachchha". This endorsement has been made by the police on said written report Exhibit P-1 lodged by P. W. 1 Girraj prasad. In the report the description of the boy and the cloths which he was wearing was also given. It was also stated that his name is Kalu and he is wearing a white shirt and a black "kachchha". This endorsement has been made by the police on said written report Exhibit P-1 lodged by P. W. 1 Girraj prasad. ( 4 ) IT is the case of the prosecution that since the boy could not be traced out P. W. 1 girraj Prasad lodged another report Exhibit p-2 on 29-8-1997 at Police Station, Niwai stating therein that he had on 2-8-1997 lodged an earlier report regarding missing of his son but inspite of all his efforts to trace out the boy, he has been unable to locate the boy and he now fears that some person has kidnapped him. Upon the said report Exhibit P-2. police registered a case under Sections 363 and 365, IPC and registered the First Information Report No. 277 of 1997 and started investigation. ( 5 ) IN the meanwhile on 8-8-1997, a written report Exhibit P-5 came to be lodged by one Mahendra Singh at Police Station Kekri, district Ajmer that in the well of one raghuvlr Singh Rathore there is a dead body of a young boy in the water and it appears that the boy has been lying dead for about 3-4 days. On this report, police recovered the body and initiated proceedings under section 174, Cr. P. C. After the body was recovered, the police prepared the site plan of the well Exhibit P-6 and the Panchnama Exhibit P-7 indicating therein that the dead body is of an unidentified boy aged about 6 years whose hands are tied with a nylon rope and the "panchas" present were of the opinion that someone after tieing the hands of the boy had thrown him in the well as a result of which the boy died by drowning. The police seized the black undenvear which the boy was wearing and also one tabeez and prepared the seizure memo Exhibit P-8. The body was sent for the post-mortem, the postmortem report is Exhibit P-l3. The photograph of the deceased boy was also taken which is Exhibit P-23. The police seized the black undenvear which the boy was wearing and also one tabeez and prepared the seizure memo Exhibit P-8. The body was sent for the post-mortem, the postmortem report is Exhibit P-l3. The photograph of the deceased boy was also taken which is Exhibit P-23. The effects were made to trace out the identity of the boy and his relatives in the village but when no trace was found the photograph of the deceased boy were published in the newspapers and the wireless messages were also sent. It is the case of the prosecution that when this information reached at Police Station Niwai, the police from Niwai went to the Police Station Kekri and obtained all the relevant records from the Police Station Kekri. During the course of investigation statements of various witnesses were recorded including that of Sanjay alias Daboo which is exhibit P-4 wherein he stated that Ram Dayal whom he referred to as his "mama" has come on 2-8-1997 to Niwai and it was after that the deceased by Kalu S/o Girraj Prasad went missing. The suspicion of the police, therefore, went upon the accused appellant Ram dayal. The appellant was arrested on 8-9-1997 vide arrest memo Exhibit P-17. While in custody, the accused gave information about the location of the well from which the dead body of deceased boy Kalu had been recovered. He further gave information regarding the shirt which the deceased boy was wearing and which was recovered at the instance of the accused vide Exhibit P-14. ( 6 ) DURING the course of investigation, it was revealed that various persons had seen the deceased in the company of the accused appellant Ram Dayal at Tonk immediately after he went missing on 2-8-1997 and subsequently, thereafter, the deceased was seen in the company of the accused-appellant at kekri, the place where the well is situated and from which the dead body of deceased kalu S/o Giraraj Prasad was recovered on 8-8-1997. The police also came to know that the accused-appellant had taken the boy from Tonk to Kekri and had left him to the home of P. W. 6, P. W. 7 and P. W. 8 and then on 5/6-8-1997 the accused had made a phone call to them enquiring about the boy and then on being told that the boy is crying the accused came and took away the boy (deceased) and the boy was not seen alive thereafter by any person. After completing the investigation, police filed the challat against the accused-appellant Ram Dayal. The learned trial Court recorded the statements of as many as 34 witnesses and took on record 26 Exhibits from the side of the prosecution. The statement of accused-appellant was also recorded under Section 313 of the Code of Criminal Procedure. The accused appellant pleaded that he has been falsely implicated on account of family feud. The learned trial Court vide the impugned judgment found the accused appellant Ram dayal guilty of the offence under Sections 302, 201 and 364, IPC and sentenced the accused-appellant as has been stated above for the various sentences. Hence, this appeal. ( 7 ) THE submission of the learned counsel for the accused-appellant is that the present one is a case of no evidence and the accused-appellant has been falsely implicated. He has further submitted that there was no motive for the accused-appellant to have murdered Kalu and that the body re covered from the well was not proved to be that of Kalu for whose rnurder the accusedappellant has been tried. ( 8 ) THE learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and has submitted that there was sufficient evidence connecting the accused-appellant with the crime and the judgment passed by the learned trial Court is just and proper. ( 9 ) WE have heard learned counsel for the parties and have perused the record and have given our anxious consideration to the rival submissions made at the Bar. in this case, there is ample evidence to show that deceased boy Kalu S/o Girraj Prasad went missing on 2-8-1997. ( 9 ) WE have heard learned counsel for the parties and have perused the record and have given our anxious consideration to the rival submissions made at the Bar. in this case, there is ample evidence to show that deceased boy Kalu S/o Girraj Prasad went missing on 2-8-1997. It has come in the evidence of P. W. 6 Smt. Kalyani that the accused-appellant Ram Dayal whom she refers to as "pandit Ram Dayal Mendwas wala came to her house in Kekri along with a young boy aged 4-5 years who was wearing a black underwear and a shirt. He came to her house in Kekri and left the boy at her house. She stated that Ram Dayal was known to her as he has previously also come to her house. When accused-appellant Ram dayal came to her house, a young boy was with him. He went away leaving the boy with her and subsequently came next day and took the boy away. She has stated that on that day. her son Chand Mal and daughter in law Smt. Pushpa were not at home. Her daughter-in-law P. W. 7 Smt. Pushpa has also been examined who has stated that when she came back with her husband after visiting the temple of Akodiya Mahadevji, she was informed by her mother-in-law P. W. 6 Smt. Kalyani that accused-appellant Ram dayal had come and left the young boy, whom he referred to as his nephew ("bhanja") and who was wearing a pair of black chappal, black underwear, a shirt and a tabeez around his neck. She further deposed that after two days Ram Dayal came, before that a telephone call had been received at her house inquiring as to how that boy was. She also stated that she told Ram dayal that boy had been crying at which he assured her that he is coming to her house to take away the boy. She was further deposed that thereafter accused-appellant ram Dayal came and took the boy away with him. She has also stated that she knew accused-appellant Ram Dayal as he was the pandit who had been performing puja at her sister-in-laws place. She has stated in her cross-examination on being asked by the counsel for the accused that her telephone number is 21084 at Kekri. She has also stated that she knew accused-appellant Ram Dayal as he was the pandit who had been performing puja at her sister-in-laws place. She has stated in her cross-examination on being asked by the counsel for the accused that her telephone number is 21084 at Kekri. Her testimony has been corroborated further by the testimony of her husband P. W. 8 Chand Mal who has also deposed the same fact that when he and his wife came back after visiting the temple of Akodiya Mahadevji his mother P. W. 6 Smt. Kalyani told him that accused-appellant Ram Dayal had come with a boy and left the boy with her. He has also corroborated the fact that boy was wearing a white shirt and black underwear and the fact that a telephone call had been received from the accused appellant on his telephone number 21084 and the accused-appellant was told that the boy had been crying. Thereafter, the accused appellant Ram Dayal came and took away the boy with him. This is the evidence with regard to the fact that the deceased was last seen alive with the accused-appellant in Kekri which is in proximity of the well where the dead body of deceased boy Kalu was found. ( 10 ) THE fact regarding the telephone call received at telephone number 21084 at Kekri is corroborated by the Exhibit P- 10-A which has been proved by P. W. 11 Mahesh Sharma the owner of the P. C. O. at Malpura from where the call was made at the telephone no. 21084 at Kekri which has STD Code 01467. An entry in the telephone register at s. No. 2199 indicates that a call was made to this telephone number at the house on p. W. 6, P. W. 7 and P. W. 8 at Kekri from malpura in District Tonk on 5-8-1997 and it is the evidence of P. W. 6, P. W. 7 and P. W. 8 that after the receipt of the aforesaid called, accused-appellant Ram Dayal reached Kekri and took away the boy from the house of p. W. 6, P. W. 7 and P. W. 8. ( 11 ) APART from the above evidence there is also another set of evidence of the deceased boy having being seen in the company of the accused-appellant on 2-8-1997 immediately after the boy Kalu went missing and the report Exhibit P-1 was lodged by his father P. W. 1 Girraj Prasad. This evidence is of P. W. 9 Yuvraj Sharma who performed "seva puja" in the temple of Balaji in tonk. This witness has deposed that at about 10 or 11 in the night of 2-8-1997, when he was sleeping in the temple accused appellant Ram Dayal came and woke him up and requested him to provide him a bedding as he wanted to sleep in the temple. He has stated that along with Ram Dayal, there was a young boy aged 4-5 years who was wearing black slippers, white shirt and black underwear. He inquired from accused-appellant Ram Dayal as to who the boy was and accused-appellant Ram Dayal told him that boy is his nephew. He has further stated that at about 7 or 8 in the morning on the next day, accused-appellant Ram Dayal left with the boy without telling him anything. The accused-appellant Ram Dayal was also seen at Tonk by P. W. 10 Mahaveer who is a tractor driver. He has stated that when he came to Tonk on 3-8-1997, he met accused appellant Ram Dayal. The accused-appellant told him that he has a boy with him and he wanted the witness to take away the boy, which according to the said witness the witness declined. The accused-appellant ram Dayal was also seen in Tonk by P. W. 12 Shankar Lal Sharma who stated that he met accused-appellant Ram Dayal and he had a body aged 4-5 years with him. He has further stated that he along with Ram Dayal and the boy took food at the hotel of Kishanji vijay. Kishanji Vijay has also been examined as P. W. 13 and he has corroborated the aforesaid testimony and has stated that accused-appellant Ram Dayal had come and he had a boy with him. Thus, the prosecution has lead cogent evidence to show that deceased boy was last seen alive prior to his death between 2-8-1997 to 5-8-1997 in the company of accused-appellant Ramdayal. Thus, the prosecution has lead cogent evidence to show that deceased boy was last seen alive prior to his death between 2-8-1997 to 5-8-1997 in the company of accused-appellant Ramdayal. ( 12 ) AS per the Post Mortem Report Exhibit P-l3 which was conducted on 8-8-1997, the time since the death, has been given between 48 to 72 hours which brings the death of deceased boy Kalu in the proximity of 5th August, 1997 to 6th August, 1997 after which there is no recorded evidence that deceased was seen alive. Thus, the prosecution has been able to cogently prove that the deceased boy was last seen alive in the company of the accused appellant Ram Dayal between 2nd August, 1997 to 5th August, 1997 and, thereafter, the deceased was not seen alive by any other person. It is also proved by the prosecution that deceased boy was last seen alive on 5-8-1997 at Kakri which is in proximity with the place where the dead body of the deceased boy Kalu was found in the well on 8-8-1997 and that the deceased was murdered on or about 5-8-1997 or 6-8-1997 in or around Kekri where his dead body was disposed of in the well in question on 8-8-1997. The aforesaid submission of the learned counsel for the accused appellant that there was no evidence to prove that deceased was last seen in the company of the accused appellant Ram Dayal is, therefore, devoid of any force and is consequently rejected. ( 13 ) THE next submission of the learned counsel for the accused-appellant is that it is not proved that body which was recovered from the well was that of deceased boy kalu for whose murder the accused-appellant Ram Dayal has been charged. In this connection, the endorsement made by the police in Exhibit P-1 may be looked into, in which the police has recorded that deceased when he went missing was wearing a white shirt and a black underwear. On the dead body which was recovered from the well had a black underwear and tabeez which were recovered by the police and seizure memo exhibit P-8 was prepared. Similarly, the shirt was seized and recovered at the instance of the accused-appellant vide Exhibit p-14 and the pair of chappals of the deceased were also recovered and seized vide Exhibit p-l2. Similarly, the shirt was seized and recovered at the instance of the accused-appellant vide Exhibit p-14 and the pair of chappals of the deceased were also recovered and seized vide Exhibit p-l2. These article the while shirt, black underwear and pair of black chappals were correctly identified by P. W. 1 Girraj Prasad. The identification memo Exhibit P-21 was prepared by the Tehsildar, Niwai P. W. 29 dayanand Sharma which clearly states that p. W. 1 Girraj Prasad, father of the deceased correctly identified the aforesaid articles. Apart from the above, there is Exhibit P-23, photograph of the dead body of the boy which was recovered from the well which has been identified by P. W. 31 Shyam Lal, grand-father of the deceased boy who has stated that photograph Exhibit P-23 is that of his grandson. He has also identified the shirt Article-1, Chappal Article-2, the Underwear Article-3 as well as Tabeez Article-4 as being those of his grandson Kalu which the deceased boy was wearing. In this view of the matter, this submission of the learned counsel for the appellant that it is not proved that body which was recovered from the well was that of Kalu who is the son of P. W. 1 girraj Prasad who went missing on 2-8-1997 for whose murder the accused-appellant has been charged, is devoid of any force and rejected. ( 14 ) SIMILARLY, the submission of the learned counsel for the appellant that it is not proved that Articles 1 to 4 belongs to the deceased boy Kalu is also devoid of any merit as there is cogent evidence on the record as has been stated above that these articles viz. , the tabeez and the underwear were on the person of the deceased at the time when his dead body was recovered from the well and the other articles, the white shirt were recovered at the instance of the accused-appellant and these articles have been identified in the test identification vide identification memo Exhibit P-21 and even by P. W. 31 Shyam Lal in the Court as being those of the deceased boy. ( 15 ) SO far as the submission of the learned counsel for the appellant that there is no evidence lead by the prosecution to suggest as to what was the motive for the accused-appellant to have committed this offence is concerned this argument of the learned counsel for the appellant need not detain us as there is cogent evidence linking the accused-appellant from the time when the deceased boy went missing on 2-8-1997 to the proximate time of his death i. e. between 5th August, 1997 to 7th August, 1997 when the deceased was murdered by the accused-appellant by drowning him in the well after tying his hands. There is ample evidence to show that during this period the deceased remained in the custody of the accused-appellant Ram Dayal and he was last seen alive in the company of the accused-appellant and was not seen alive thereafter. Though, the prosecution has tried to lead evidence to suggest that accused-appellant kidnapped the deceased boy for ransom, however, this evidence has not been believed by the learned trial Court, nonetheless, the evidence produced by the prosecution during the trial in this case is sufficient to bring home the conviction of the accused-appellant and the accused-appellant has been rightly convicted by the trial court for the offence under Sections 302, 201 and 364 IPC as after his being kidnapped, Kalu was murdered by the accused-appellant and his body was disposed of with a view to cause disappearance of the evidence. ( 16 ) FOR all these reasons, we find no reason to interfere with the judgment under appeal passed by the learned Sessions judge, Tonk. Consequently, these appeals are liable to be rejected and are hereby rejected. The accused-appellant is in jail, he shall serve out the remaining part of the sentence. Appeal dismissed.