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2006 DIGILAW 1095 (RAJ)

Rajkumar @ Rajesh @ Raju v. State of Rajasthan

2006-04-05

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.–This appeal stems from the judgment dated September 5, 2001 of the learned Sessions Judge, Jaipur City, Jaipur, whereby the appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine with default stipulation. (2). As per the prosecution story Bhagwan Sahai Head Constable (PW. 2) submitted a written report (Ex. P. 5) at police station Vidhayakpuri Jaipur on March 25, 1997 with the averments that on March 24, 1997 around 11.30 PM he received information that a person was lying injured on the road near `Ajmer fly over. On reaching to the spot Bhagwan Sahai found that injured person was already dead. Dead body was taken to the SMS Hospital where was detected that the death was caused by inflicting knife blows. On the report a case under Section 302 IPC and 4/25 Arms Act was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Jaipur City. Charges under Section 302 IPC and 4/25 Arms Act were read over to the appellant who denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence. Two witnesses in defence were examined. The learned trial Judge hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have given our/thoughtful consideration to the rival submissions and scanned the record. (4). Since there was no eye witness of the occurrence the prosecution based its case on circumstantial evidence. It is well settled that the case based on circumstantial evidence must satisfy three 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 or a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cummulatively, 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. (5). (5). We have therefore to adjudge as to whether the circumstances established by the prosecution are like a spiders who leaving no exit for the appellant to slip away and, whether the links in the chain of circumstances together, unmistakably point out the guilt of the appellant? (6). Broadly speaking the circumstantial evidence relied upon by the prosecution is as under:- (i) Homicidal death. (ii) Prior to the death the deceased was last seen in the company of appellant. (iii) various incriminating articles got recovered at the instance of appellant. (iv) Plea of alibi raised by the appellant was found false. (v) Motive. (7). Mr. A.K. Gupta, learned counsel for the appellant, urged that the prosecution has utterly failed to link up the chain and as a matter of fact the snap in the chain is not very far to seek. According to learned counsel there is no cogent evidence to connect the appellant with the alleged murder of Nand Kishore. The prosecution has miserably failed to establish motive for the alleged crime. So far as the evidence of last seen is concerned, there is nothing unusual about it as the deceased and the appellant were the friends. The evidence created through disclosure statement and consequent recovery of articles and weapon is per se fake and fabricated. (8). In order to examine is to whether the chain of circumstances has been linked up or not, let us advert to the testimony of witnesses examined at the trial. The evidence of Dr. M.L. Kanwath (PW. 26), who performed autopsy on the dead body vide post mortem report (Ex. P. 27) shows that Nand Kishore sustained as many as 23 ante mortem injuries that included more than a dozen incised wounds. According to the Autopsy Surgeon the cause of death was shock due to injuries No. 20, 21, 22 & 23, which were sufficient to cause death in the ordinary course of nature. (9). A look at the material on record demonstrates that Mohan Lal (PW. 3), father of the deceased, in his deposition stated that on the day of Dhulandi (Holi) around 7 PM the appellant came to his house and started gossiping with his sons Nand Kishore (deceased) and Dinesh. Thereafter appellant and and Kishore went out of the house together. Thereafter Nand Kishore did not return back and his dead body was found. Dinesh Kumar (PW. Thereafter appellant and and Kishore went out of the house together. Thereafter Nand Kishore did not return back and his dead body was found. Dinesh Kumar (PW. 4), son of Mohan Lal, stated that around 7 PM on the day of Dhulandi (Holi) appellant came to his house and remained there for about one and half hour. The appellant asked Dinesh to learn driving from his but on the next breath appellant said that to become driver was not a good thing. It would however be better for that person to become driver, who had enmity with some one. Appellant further said that after becoming driver he had killed. 2-3 persons. Appellant and his brother Nand Kishore then went out of the house together and thereafter Nand Kishore never returned back. On 26th Morning he came to know that Nand Kishore was murdered. Statement of Dinesh gets corroboration from the statement of Geeta (PW. 5) (widow of Nand Kishore), Santosh (PW. 14), son of Mohan Lal and Kamla (PW. 9), the mother of Nand Kishore. According to Kamla the appellant wanted to play Holi with Geeta but no such opportunity was provided to him. Geeta deposed that the appellant used to quarrel with her husband, but since they entered into compromise, her husband had accompanied the appellant. Pushpa (PW. 7), Tulsa (PW. 10) and Meenu (PW. 11) deposed that the appellant and deceased together came to their house around 8.30 PM and remained there upto 9 PM. Prabhati Lal (PW. 12) in his deposition stated that on day of incident he was posted as Junior Engineer in PHED and the appellant was serving in his office as Class IV employee. On March, 24, 1997 the appellant was to present on duty at 10PM and remain in the office till next day upto 6 AM, but he did not arrive till 11 PM, therefore he handed over the key of the office to Phoola Devi, another IV class employee, and instructed her to handover the keys to appellant on his arrival. (10). Rameshwar Prasad (PW. 20), Malkhana Incharge, deposed that 3 packets were handed over to him in sealed condition on April 19, 1997. He delivered those packets to Kishan Singh, ASI and Shiv Singh FC for depositing in FSL. Rajendra Singh Shekhawat (PW. 22), the Investigating Officer, who arrested the appellant vide arrest memo Ex. (10). Rameshwar Prasad (PW. 20), Malkhana Incharge, deposed that 3 packets were handed over to him in sealed condition on April 19, 1997. He delivered those packets to Kishan Singh, ASI and Shiv Singh FC for depositing in FSL. Rajendra Singh Shekhawat (PW. 22), the Investigating Officer, who arrested the appellant vide arrest memo Ex. P. 21, in his deposition stated that on March 29, 1997 at 2 PM the appellant gave information in regard to blood stained clothes, shoes and knife. The said information was recorded by him in the memo Ex. P. 22 and on the basis of said information he recovered blood stained pant, shirt and knife (the size of blade was 22.5 cm) vide recovery memo Ex. P. 16. FSL report received by the IO was placed on record and marked as Ex. P. 11. (11). Madan Lal (AW.1) and Gayasuddin (AW 2) were examined by the appellant in support of his plea of alibi, that he was on duty from 10 PM to 6 AM. But in his cross examination Madan Lal admitted that he did not meet the appellant after 2 PM on March 24, 1997 till 6 AM on March 25, 1997. Similarly Gayasuddin in his cross examination deposed that on March 24, 1997 after 8.30 PM he went to his house therefore he could not say that after 8.30 PM the appellant had attended the duty or not. (12). From the testimony of Dr. M.L. Kanwath (PW. 26) and the autopsy report (Ex. P. 27) of Nand Kishore it is apparently clear that the cause of death of Nand Kishore was shock as a result of injuries No. 20, 21, 22 and 23. Therefore the prosecution is able to establish the first circumstance and we hold that the death of Nand Kishore was homicidal in nature. (13). The second circumstance against the appellant is that the deceased was last seen alive with him. From the testimony of Mohan Lal, Dinesh, Geeta, Kamla and Santosh it is established that the appellant came to the house of Nand Kishore on Dhulandi festival at 7 PM and remained there around one hour. He then persuaded Nand Kishore to accompany him and both left the house together. From the testimony of Mohan Lal, Dinesh, Geeta, Kamla and Santosh it is established that the appellant came to the house of Nand Kishore on Dhulandi festival at 7 PM and remained there around one hour. He then persuaded Nand Kishore to accompany him and both left the house together. Thereafter they together went to the house of Pushpa, Tulsa and Meenu around 8.30 PM and remained there till 9 P.M. Thereafter at about 11.30 PM Nand Kishore was found lying dead after sustained as many as 23 injuries that included more than a dozen incised wounds. The prosecution is thus able to establish that prior to his death Nand Kishore was last seen alive in the company of the appellant till 9 PM. (14). The third circumstance, i.e. recovery of incriminating articles at the instance of the appellant is also found established. We see no reason to disbelieve the statement of Rajendra Singh Shekhawat, Investigating Officer. His testimony could not be shattered despite searching cross examination. On the shoos pant and shirt of the appellant recovered at his instance human blood was found as per FSL report. (15). The fourth and probably the most formidable circumstantial evidence against the appellant is his plea of alibi, which was found false by the learned trial Court. As earlier seen the appellant raised plea of alibi that he was on duty at Kishangarh. In support of his plea of alibi he examined Mohan Lal (AW. 1) and Gayasuddin (AW. 2) but their testimony has been shattered in the cross examination. From the testimony of Prabhati Lal JEN (PW. 12) the prosecution has established that the appellant did not arrive on duty till 11 PM. We see no good reason to disbelieve the testimony of Prabhati Lal. Having scanned the documentary and ocular evidence we find the plea of alibi of appellant to be untrue. It is well settled that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain (vide Swapan Patre vs. State of W.B. (1999) 9 SCC 242 ). In the instance case the false explanation offered by the appellant can be treated as providing a `missing link for completing the chain. (16). In the instance case the false explanation offered by the appellant can be treated as providing a `missing link for completing the chain. (16). Learned counsel for the appellant further contended that the prosecution has miserably failed to establish motive for the alleged crime. We have examined the material on record from this angle also. As already noticed Geeta, the wife of deceased, categorically stated that the appellant used to quarrel with the deceased and they had entered into compromise. Mohanlal, Dinesh, Santosh and Kamla heard the appellant saying that after he became driver he had killed 2-3 persons. Appellant also wanted to play Holi with the wife of deceased but no opportunity was provided to him. It is also establish that it was the appellant who persuaded the deceased to accompany him. Mysterious is the working of human mind. It is, indeed, a fact that motive underlies almost every offence, but the motive of men are often deep unfathomable and then number is legion. The circumstances, proving the guilt of the accused are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action. In Mani Kumar Thapa vs. State of Sikkim (2002) 7 SCC 157 the Apex Court indicated that if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it was the accused alone who could have committed the murder, the absence of the motive will not hamper a safe conviction. (17). In the ultimate analysis we find that the evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. The chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis then of the guilt of the appellant. Learned trial Court, in our considered opinion, has not committed any error in convicting and sentencing the appellant and we maintain the impugned finding. (18). For the reasons aforementioned, we find no merit in the appeal and the same is dismissed.