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2005 DIGILAW 540 (RAJ)

Ratan Lal v. State of Rajasthan

2005-02-17

BHAGABATI PRASAD BANERJEE, SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-These two appeals received from Jail arise out of the common Judgment and order dated 9.2001 passed by learned Addl. Sessions Judge (Fast Track), Bhilwara in Sessions Case No.16/2001, as such, the same are being disposed of by this common Judgment . .2. The appellants were the accused on the file of learned Addl. District & Sessions Judge (Fast Track), Bhilwara bearing Sessions Case No. 16/2001. The learned Judge, vide Judgment dated 09.2001, convicted both the accused appellants as under : Under Sec. 302 read with Sec. 34 IPC. Imprisonment for life and fine of Rs. 2,000/-, in default of payment of fine further to undergo six months R.I. Under Sec. 394 read with Sec. 34 IPC 10 years rigorous .imprisonment and fine of Rs. 1,000/-, in default of payment of fine further to undergo three months R.I. The sentences were ordered to run concurrently. 3. It is the case of prosecution that PW. 1 Narayanlal Suwalka-Up-Sarpanch, Suwana, lodged a written report (Exh. P/1) in the Police Station Sadar, District Bhilwara at about 2.30 P.M. on 18.6.1999 stating therein that sometime before lodging of the written report a lady came to his village stating that a female dead body was lying in the fields of Golaiyon. On hearing this, he took 2-3 persons with him and reached at the field near Haled village and found there a female dead body lying. Both the legs of the dead body were cut and separated; the blood was lying on the earth. On this written report, a case No. 149/1999 under Sec. 302 IPC was registered at the police station and a regular FIR Exh. P/2 was chalked out. 4. On completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate and in due course of time the matter came up before the learned Additional District & Sessions Judge (Fast Track), Bhilwara. Charges under Secs. 302/34 and 394/34 IPC were framed against the accused appellants, who denied the charges and claimed trial. Prosecution examined as many as 31 witnesses and in documentary evidence exhibited 51 documents in support of its case. 5. The learned trial Judge, after close of the evidence of prosecution, recorded statements of accused under Sec. 313 CrPC. The accused denied the prosecution evidence and claimed to be innocent. Prosecution examined as many as 31 witnesses and in documentary evidence exhibited 51 documents in support of its case. 5. The learned trial Judge, after close of the evidence of prosecution, recorded statements of accused under Sec. 313 CrPC. The accused denied the prosecution evidence and claimed to be innocent. After hearing both the sides, the learned trial Court convicted and sentenced accused appellants as indicated hereinabove. 6. We have considered the submissions made by learned Amicus Curiae and the Public Prosecutor and have carefully gone through the evidenced produced at the trial. .7. The learned Amicus Curiae, on behalf of the accused appellants, made following submissions before us:- .(i) That, in the present case the chain of circumstances is not complete, therefore, the conviction and sentence awarded by the learned trial Judge deserves to be set aside and the accused appellants deserve to be acquitted of the charges levelled against them. .(ii) That, in the absence of reliable identification parade, the conviction and sentences awarded to the accused appellants cannot be sustained. .(iii) That, the learned trial Court has wrongly believed the recoveries in the present case on the information of the accused appellants. .8. On the other hand, the learned Public Prosecutor, appearing for the State, made following submissions: - .(i) That, the Judgment and order of conviction recorded by the learned trial Court is based on reliable circumstantial evidence, therefore, the same requires to be upheld. .(ii) That, the recoveries made in pursuance of information given by the accused appellants and the group of the blood found on the clothes of the deceased and on the clothes of accused being of the same group, the conclusion drawn by the learned trial Court that it were accused persons who committed the murder, is correct and, as such, the accused have rightly been convicted and sentenced. 9. We have taken into consideration the rival submissions made before us and now we propose to examine the submissions in the light of material available on record and also taking into consideration the established principles which govern the matter relating to circumstantial evidence. 10. Before proceeding further, it is to be seen as to what is the circumstantial evidence and what is its evidentiary value. 10. Before proceeding further, it is to be seen as to what is the circumstantial evidence and what is its evidentiary value. In criminal jurisprudence, circumstantial evidence is that which relates to service of other facts than the fact in issue; but which by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. It is one of the established principles of law that a witness may lie but not the circumstances. However, the Court must adopt a cautious approach while basing its conclusions purely on circumstantial evidence as in evidence there is no difference between direct and circumstantial evidence. The only difference is that the former directly establishes the commission of the offence whereas the later does so by placing circumstances which lead to irresistible inference of the guilt. .11. The Honble Supreme Court has consistently held that circumstantial evidence must satisfy the following tests:- .(a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; .(b) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. .(c) The circumstances taken cumulatively should form a chain so complete that there is no scope from the conclusion that within all human probability the crime was committed by the accused and .none else; and .(d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocent. .12. In the present case, there is no direct evidence against the accused appellants and the prosecution has placed reliance on the following circumstances which were considered by the learned trial Court:- .(i) Deceased being taken away by accused Ratanlal in the morning of 17.6.1999 and last seen in the forest of village Haled in the company of accused persons. .(ii) Recovery of knife from accused Ratanlal. .(iii) Tallying of the group of blood found in the stains on the shirt and pant worn by accused at the time of incident with the blood found on the Sari of the deceased, clothes of Mst. Prem and the sample soil smeared with blood. .(ii) Recovery of knife from accused Ratanlal. .(iii) Tallying of the group of blood found in the stains on the shirt and pant worn by accused at the time of incident with the blood found on the Sari of the deceased, clothes of Mst. Prem and the sample soil smeared with blood. .(iv) Recovery of ornaments of deceased from accused Prem. .(v) Tallyingof blood group found on Odhani and Lehanga of accused Prem, which she was wearing at the time of incident, with the blood group of the deceased , Sari and the sample taken of blood smeared soil. .(vi) Motive. 13. Before proceeding further in the matter, the medical evidence produced in this case has to be seen, which is found in the statement of PW. 10 Dr. Yashpal, who was one of the Members of the Medical Board and had conducted autopsy on 19.6.1999 on the dead body of Smt. Nandu (since deceased, to be referred as `the deceased). 14. According to PW. 10, who has proved the Post-mortem Report Exh. P/9, the cause of death was hemorrhagic shock. Thus, the-ante mortem injuries caused by sharp edged weapon were sufficient in the ordinary course of nature to cause death and in view of Report Exh.P/9 and the statement of PW. 10 Dr. Yashpal, it is established without any manner of doubt that the present case is of unnatural homicidal death. Circumstantial Evidence: 15. Circumstance No. 1-Deceased being taken away by accused Ratanlal in the morning of 17.06.1999 and last seen in the forest of village Haled in the company of accused persons. 16. The relevant evidence in this regard is the evidence of PW. 6 Laxmi, PW. 8 Devilal, PW. 14 Smt. Ramkanya, PW. 9 Chhittar and PW. 15 Juwara. PW. 8 Devilal is the landlord of the house where deceased with her husband was living as a tenant. PW. 14 Ramkanya is the wife of Devilal and PW. 6 Laxmi is the daughter of Ramkanya. PW. 15 Juwara is the husband of deceased. 17. A careful scrutiny of the evidence of these witnesses indicates that PW. 6 Laxmi saw the accused on 17.6.1999 in the morning while the accused was entering in the house and PW. 6 asked accused Ratan as to where he was going. Hearing this, deceased said that accused Ratan was her Jeeja (brothr-in-law). 17. A careful scrutiny of the evidence of these witnesses indicates that PW. 6 Laxmi saw the accused on 17.6.1999 in the morning while the accused was entering in the house and PW. 6 asked accused Ratan as to where he was going. Hearing this, deceased said that accused Ratan was her Jeeja (brothr-in-law). It is significant to notice that this witness has not been cross-examined. PW. 14 Ramkanya, the mother of the deceased has stated that deceased alongwith her husband Juwara was living in their house and when accused was entering in their house her daughter Laxmi had asked the accused as to where he was going. On hearing this, deceased Mst. Nandu told her that the person entering in the house was her Jeeja. PW. 15 Juwara has stated that on his asking about the whereabouts of the deceased in the evening, he was informed by PW. 6 Laxmi that the deceased had gone out with her Jeeja. Nothing could be extracted from the cross examination of this witness which may nullify the correctness of the statement of this witness. Thus, it appears that on 17.6.1999 at about 8 or 8.30 in the morning, a person to whom Laxmi asked as to where he was going, had taken the deceased with him .18. Now, it is to be seen that the person with whom the deceased had gone was accused Ratanlal or some other person. In this connection, the statement of PW. 3 Nandlal is important when the witness says that on 17.6.1999 the accused came to the house of deceased on his bicycle in the morning at about 8 or 8.30, at that time Juwara had gone out on his bullock cart for work. When accused entered the house of the deceased, PW. 6 Laxmi asked the accused as to where he was going, the deceased said, "let him come, he is her Jeeja". On the next day, i.e. 18.6.1999, PW. 9 Chhittar told the witness PW. 3 Nandlal that deceased had ran away somewhere. On this, the witness replied that yesterday he saw the deceased with a young, healthy and stout person. The witness has identified accused Ratanlal in the Court. In the evening, Juwara came to witness PW. 3 and asked as to whether he had seen the person with whom the deceased had gone. 3 Nandlal that deceased had ran away somewhere. On this, the witness replied that yesterday he saw the deceased with a young, healthy and stout person. The witness has identified accused Ratanlal in the Court. In the evening, Juwara came to witness PW. 3 and asked as to whether he had seen the person with whom the deceased had gone. The witness stated that he had seen the accused taking her with him on cycle in the morning of 17.6.1999 at about 8 or 30. The presence of the witness appears to be obvious in the morning near the house of the deceased .for the reason that he is a shop-keeper and his shop is 50ft. away from the house of the deceased. 19. Here, it shall be relevant to notice the evidence of PW. 8 Devilal because PW. 8 Devilal and PW. 3 Nandlal both went to the house of accused Ratan with Juwara and there in front of accused Ratan, Nandlal stated that it was the accused who had taken deceased Nandu with him. .20. In view of above evidence of PW. 3 Nandlal, PW. 8 Devilal, PW. 14 Ramkanya, PW. 6 Laxmi, PW. 9 Chhittar and the evidence of PW. 15 Juwara, there remains no doubt about the testimony of the above witnesses. In our opinion, the prosecution has been succcessful in proving the first circumstance against accused appellants. .Now it is to be seen that as to whether the deceased was seen in the company of accused persons on the previous night in the forest of village Haled. 21. To prove this circumstance, prosecution has relied upon the evidence of PW. 4 Rameshwar, PW. 5 Bhanwar, and PW. 1 Narayanlal. PW. 4 Rameshwar, in his statement has stated that before recording his statement in the Court about 13-14 months before, when he was ploughing the field of one Shri Sohan Acharaj alongwith with Bhanwar Jat in the night at about 12 PM, at that time a man with two women came there and asked about the way leading to village Haled as they had forgotten it. The witness has further stated that he took all the three persons with him in the tractor of PW. 5 Bhanwar and left them near the Badla Naali. They said that they were going to the house of Prema Chamar. The witness has further stated that he took all the three persons with him in the tractor of PW. 5 Bhanwar and left them near the Badla Naali. They said that they were going to the house of Prema Chamar. On the next day, at about 2 or 2.30 noon, when he was going to Bhilwara, he saw that many persons had assembled on the outskirts of the village. He also went there and found a dead body of female lying there whose both feet were separated from her body. On seeing the dead body, he told there that on the previous night when he was ploughing the field of Sohan Acharaj in the night about 12 PM, three persons came and asked about the way to the village and, thereafter, he took them along with him in the tractor of PW. 5 Bhanwar. The dead body found was of one of the women to whom he saw on the previous night. In the cross-examination, the witness has stated that PW. 5 Bhanwar was driving the tractor and he had not asked the names and addresses of those persons. He stated that they had come on foot and he was not knowing them from before. The field, where the accused persons had come on the previous night, was about a kilometer away from the way. The witness has further stated that he saw them in the headlight of the tractor while they got down. PW. 5 Bhanwar has also supported the version of PW. 4 Rameshwar in its totality. From the statement of PWs. 4 and 5 it appears that accused persons met witnesses PWs. 4 and 5 in the night of 17.6.1999 at about 12 P.M. and asked the witnesses about the way to Haled and they were left near the village. The dead body found was of one of the females accompanying the accused persons on the previous night. 22. Submissions have been made before us questioning the correctness of identification parade. It is to be seen that after the arrest of the accused persons, identification parade was held in jail on 29.1999 by PW. 16 Shaym Sunder Lata, Judicial Magistrate, Kekdi. Statement of PW. 16 coupled with the statement of PWs. 4 & 5 indicates that they were correctly identified during the Test Identification Parade. It is to be seen that after the arrest of the accused persons, identification parade was held in jail on 29.1999 by PW. 16 Shaym Sunder Lata, Judicial Magistrate, Kekdi. Statement of PW. 16 coupled with the statement of PWs. 4 & 5 indicates that they were correctly identified during the Test Identification Parade. The contention of the learned Amicus Curiae that since the witnesses had seen them before, therefore, the Test Identification Parade (Exhs. P/14 and 15), in relation to accused persons, is not reliable piece of evidence. We find no merit in this submission for the reason that nothing has been asked in the cross-examination from the Investigating Officer and PW. 4 and PW. 5 and nothing has been explained in relation to the questions put to the accused persons under Sec. 313 of the CrPC. 23. After carefully examining the relevant evidence produced for conducting test identification parade, we are of the opinion that without eliciting anything in the cross-examination, the witnesses cannot be disbelieved on the point of identification of the accused persons and in our view the witnesses are trustworthy. 24. In light of above evidence, there is a reason to believe that the prosecution has been able to prove the chain of circumstances that on the previous night it were the accused person who meet PWs. 4 and 5 and the dead body found was of one of the ladies, who were in the company of the accused persons. 9.25. Evidence relating to circumstance Nos. 2, 3, 4 and 5 i.e., recovery of knife from accused Ratanlal; tallying of the group of blood found in the stains on the shirt and pant worn by accused at the time of incident with the blood found on the Sari of the deceased, clothes of Mst. Prem and the sample soil smeared with blood; recovery of ornaments of deceased from accused Prem; and tallying of blood group found on Odhani and Leganga of accused Prem, which she was wearing at the time of incident, with the blood group of the deceased, Sari and the sample taken of blood smeared soil. .26. The recovery of knife, pant and shirt was effected on the basis of information (Exh. P/46) given by accused Ratanlal in the custody of police. The recovery memo in pursuance of information was prepared in the presence of PW. 18 Balmukund and PW. 19 Ladu Jat. .26. The recovery of knife, pant and shirt was effected on the basis of information (Exh. P/46) given by accused Ratanlal in the custody of police. The recovery memo in pursuance of information was prepared in the presence of PW. 18 Balmukund and PW. 19 Ladu Jat. The accused Ratanlal had opened the lock of his rental premises and then from a room he took out a knife and the clothes, which were seized by the police. In .this connection, Memo Exhs. P/18 is the Fard Jabti of knife, shirt and pant, and Exh. P/20 is the site map prepared in relation to the recovery effected. 10.27. PW. 26 Shravan Lal, Malkhana Incharge, made entries about the sealed condition of the articles. The entries made in the Malkhana Register have been proved as Exh. P/41. The witnesses in this regard are PW. 21 Laxman and PW. 22 Bhagwati. The evidence adduced during the course of trial clearly indicates that the sealed articles were sent for chemical examination and they remained intact till the same were deposited in the FSL. The FSL report Exh. P/49 makes a mention that human blood was found on knife, pant and shirt and it was of AB blood-group. It has further been mentioned in Exh./P/49 that the blood group of the blood smeared soil and the clothes of the deceased also contained the same blood-group. 128. The recovery effected of ornaments of the deceased and the clothes worn by the accused Prem at the time of incident through Exh. P/19 and Exh. P/47, which is the information rendered under Sec. 27 of the Evidence Act by accused Smt. Prem. The recovery was effected in presence of witnesses PW. 18 Balmukund and PW. 19 Ladu Chand Jat from a place where she was residing on rent. Nothing could be elicited in the cross-examination from the Investigating Officer and the above two witnesses and the accused Prem has also not stated/explained anything in this regard in her statement under Sec. 313 of the CrPC. 129. In the FSL report it has come that the blood group "AB" found on the clothes of deceased and the same blood group AB was found on the clothes worn by accused Mst. Prem. 129. In the FSL report it has come that the blood group "AB" found on the clothes of deceased and the same blood group AB was found on the clothes worn by accused Mst. Prem. Thus, in view of the oral evidence and the FSL Report, there appears no difficulty in reaching to the conclusion that the clothes worn by the deceased and the clothes worn by accused Prem contained same blood-group, in our humble opinion, the prosecution has been able to prove successfully the above circumstance also. Sixth Circumstance-motive. 30. Motive is not relevant in criminal cases but at the same time the presence of motive strengthens the prosecution case and the absence thereof will not demolish the prosecution case. In the instant case, it has come in evidence that accused Prem was living with accused Ratan whereas she is not the wife of accused. There appears some suspicion about about the conduct, behavior and character of accused Prem. It further appears that the present matter is one of a triangular love story or the deceased might have been killed for her ornaments which were subsequently recovered from accused Prem. 2.31. Be that as it may, as mentioned above, motive is not always relevant in criminal cases, therefore, we are of the opinion that the prosecution has been able to prove its case by the circumstantial evidence and the learned trial Court rightly came to the conclusion that the chain of circumstances is complete in the present matter in asmuch as that the deceased was seen in the company of accused persons and she was taken by accused Ratanlal in the morning of 17.6.1999 and in the identification parade the accused persons were correctly identified which is fortified from the fact of recovery of ornaments at their instance and tallying of blood groups found on the recovered articles with the clothes of deceased and the blood smeared soil. 3.32. In view of foregoing discussions, we find no error in the Judgment and order passed by the learned trial Court which may require interference by this Court. 4.33. Accordingly, both the appeals being devoid of merit are hereby dismissed after confirming the Judgment and order passed by the learned trial Court dated 9.2001 Sessions Case No. 16/2001.