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2006 DIGILAW 2103 (RAJ)

Ghanshyam @ Mool Chand v. State of Rajasthan

2006-07-03

CHATRA RAM JAT, SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.–Ghanshyam @ Mool Chand, the appellant herein, was put to trial in Sessions Case No.35/1999 before the learned Additional Sessions Judge Neem-ka-Thana (Sikar), who vide judgment dated January 11, 2002 convicted the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and fine of Rs.20,000/-, in default to further suffer imprisonment for one year. (2). The prosecution story is woven like this: On May 18, 1999 the informant Jagdish (PW.7) finding his son Lala Ram, aged 12 years, lying dead in the Nala near Railway (Sikar) with the averments that he was a truck driver and had gone to Delhi. On May 16, 1999 he returned from Delhi and saw crowd near Railway crossing. He got his truck halted and reached near the crowd where he found his son lying dead having deep cut on his neck. On that report a case for the offence under Section 302 IPC was registered and investigation commenced. Dead body of Lala Ram was subjected to autopsy, statements of witnesses were recorded by the police, necessary memos were drawn and the appellant was arrested. On completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Neem-ka-thana (Sikar). Charge under Section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however, examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have heard learned counsel for the parties and with their assistance weighed the material on record. (4). Since there was no eye-witness of the occurrence the prosecution based its case on circumstantial evidence. It is well settled that 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 of a definite tendency unerringly pointing towards the guilt of the accused; (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. (5). (5). Circumstantial evidence means the evidence afforded not by the direct testimony of an eye-witness to fact to be proved, but by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal facts. Circumstantial evidence is not an evidence direct to the point in issue, e.g. the statement of a person that he saw another giving a fatal blow to the deceased, but evidence of various facts other than the fact in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. The circumstantial evidence should be like spiders web leaving no exit for the accused to slip away. The various links in the chain, when taken in isolation, might not connect the accused with the commission of the crime but when taken together may unmistakably point out the guilt of the culprit. (6). Bearing these principles in mind we have to adjudge the cumulative effect of all the circumstances that were found established by the learned trial Judge. They are as under: (i) Homicidal death. (ii) Deceased was last seen in the company of appellant. (iii) Recovery of knife allegedly used in commission of offence at the instance of appellant. (iv) Blood group found on the knife matched with the blood group of the deceased. Homicidal Death : (7). Death of Lala Ram was undeniably homicidal in nature. As per post mortem report (Ex.P-27) following antemortem injuries were found on the dead body:- 1. Incised wound 6" x 3-1/2" x upto vertebral column at front of neck at junction of neck and head more on right side. All structured trachea, blood vessels and muscles are cut slight oblique upper and towards left side of neck and lower and towards medial part supraclavicular Right side area, the wound is widest at mid at Trachea antemortem in nature. 2. Incised wound 1-1/2" x 1/4" medial aspect lower part left forearm. 3. Abrasion 1-3/4" x 1" at dorsal aspect left hand. 4. Abrasion tiny 7-8 in number at right side chest wall & abdominal wall. In the opinion of Dr.O.P. Karwal (PW.16), who conducted autopsy on the dead body, the cause of death was primary shock due to severe haemorrhage and injury to vital organ. 3. Abrasion 1-3/4" x 1" at dorsal aspect left hand. 4. Abrasion tiny 7-8 in number at right side chest wall & abdominal wall. In the opinion of Dr.O.P. Karwal (PW.16), who conducted autopsy on the dead body, the cause of death was primary shock due to severe haemorrhage and injury to vital organ. Last Seen : (8). The second circumstance against the appellant is that he was last seen in the company of deceased. In order to establish that the deceased was last seen in the company of the appellant the prosecution examined Prabhat (PW.5) and Suresh (PW.6). Prabhat (PW.5) in his deposition stated that Jagdish Driver, the father of deceased Lala, was his younger brother. On the afternoon preceding to the day of recover of dead body of Lala, he had seen the appellant and the deceased together in village Dhani Piploda. In his cross-examination Prabhat deposed that he had also seen appellant wandering in the courtyard. According to this witness deceased was alone in the house. Suresh (PW.6) in his deposition stated that around 2.30 p.m. he had seen the appellant and the deceased together in the chowk of the village. He was told by the appellant that after leaving that village he had started residing in Mehroli. The appellant and the deceased proceeded towards village Piploda-ki-Dhani. (9). Learned counsel for the appellant persuaded us to discard the testimony of Prabhat and Suresh on the ground that they were related to the deceased. Having closely scrutinised the testimony of Prabhat and Suresh, we find no substance in the submission of learned counsel. Testimony of these witnesses could not be shattered in cross-examination. We see no time gap between the point of time when the appellant and deceased were last seen alive and the deceased was found dead. In Ramreddy Rajeshkhanna Reddy vs. State of Andhra Pradesh (JT 2005(4) SC 16), their Lordship of the Supreme Court indicated as under: "The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration." (10). Even in such a case courts should look for some corroboration." (10). In Jaswant Gir vs. State of Punja (2005) 12 SCC 438 ) their Lordships of the Supreme Court observed as under: "Without probing further into the correctness of the "last seen" version emanating from PW-14s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the appellant and the time when PW-11 found the dead body. In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the "last-seen" evidence, even if the version of PW-14 in this regard is believed." (11). In the instant case last seen theory comes into play and we find no reason to disbelieve the evidence of Prabhat and Suresh. There is nothing on record to show that these witnesses had falsely implicated the appellant since they had no enmity with the appellant. The presence of these witnesses in the village was quite natural and on examining them from the point of view of trustworthiness we find their testimony truthful and cogent. Recovery of Knife : (12). The third circumstance against the appellant is that knife allegedly used in commission of offence got recovered from the roof of his house on the basis of disclosure statement of appellant. The recovery was effected vide recovery memo Ex.P.24 and site plan of place of recovery was drawn Ex.P/25. Motbir of recovery Mahaveer Singh (PW-13) in his deposition stated that the appellant got the knife recovered in his presence from roof of his house. This witness further deposed that the roof was not having stair-cases and they had to climb on the roof with the help of projecting eaves (Chhajja). Initially the appellant climbed on the roof, thereafter the police personnels climbed. It is contended by learned counsel for the appellant that the place of recovery of knife was accessible to all and it was an open place. Initially the appellant climbed on the roof, thereafter the police personnels climbed. It is contended by learned counsel for the appellant that the place of recovery of knife was accessible to all and it was an open place. We find no substance in this submission Since the roof was not connected with the staircases, it cannot be said that it was an open place and accessible to all. Mohd. Hussain (PW-14), who conducted investigation, deposed that he drew memo of recovery Ex.P-24 and site plan of place of recovery Ex.P-25. The recovery of knife was affected in his presence. It also appears that immediately after the arrest of the appellant recovery of knife was affected at the instance of appellant. The recovery of knife, in our opinion, is conclusive proof that it was the appellant who concealed the knife on the roof of his house. Blood Group : (13). As per FSL report Ex.P-30 human blood of group AB was found on the knife and clothes and cap of deceased and the prosecution has established this circumstance. (14). It is lastly contended by the learned counsel that the prosecution has miserably failed to establish motive for the alleged crime. We have examined the material on record from this angle also. In a criminal trial to prove a motive does not necessarily mean that there was no motive for the crime. The circumstances of an act being apparently motiveless is not a ground from which the existence of a powerful or irresistible influence or homicidal tendency can be inferred. Motives exist unknown and innumerable which might prompt the act. Mysterious is the working of human mind. It is, indeed, a fact that motive underlies almost every offence, but the motives of men are often deep unfathomable and their number is legion. The motive behind a crime is a relevant fact of which evidence can be given. The circumstances proving the guilt of the accused are however, not weakened at all by the fact that the motive has not been established. If often happens that only the culprit himself knows what moved him to a certain course of action. The motive behind a crime is a relevant fact of which evidence can be given. The circumstances proving the guilt of the accused are however, not weakened at all by the fact that the motive has not been established. If 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 , their Lordships of the Supreme Court held 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. (15). In the ultimate analysis we find a combination of facts creating a network through which there is no escape for the appellant. The evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. Learned trial Judge in our considered view, has not committed any error in convicting and sentencing the appellant and we confirm the impugned findings. (16). For these reasons, we do not find any merit in the instant appeal and the same stands accordingly dismissed. The conviction and sentence awarded to appellant under Section 302 IPC are maintained.