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2011 DIGILAW 1336 (RAJ)

Nena Ram v. State of Rajasthan

2011-07-11

GOVIND MATHUR, NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard the learned counsel for appellant as well as learned Public Prosecutor.This appeal is preferred to question the correctness of the judgment dated 27.1.2004 passed by the learned Additional Sessions Judge (FT), Jalore in Sessions Case No. 143/2003 (22/2003), convicting the appellant-accused Nena Ram for the offences punishable under Sections 302, 397 and 454 I.P.C. and sentenced him as follows : Section 302, I.P.C. - Life imprisonment with fine of Rs. 2,000/-, in default of payment whereof to further undergo 2 years' simple imprisonment. Section 397 I.P.C. - 7 years' rigorous imprisonment with fine of Rs. 1,000/-, in default of payment whereof to further undergo one year's simple imprisonment. Section 454 I.P.C. - 3 years' rigorous imprisonment with fine of Rs. 500/-, in default of payment whereof to further undergo 6 months' simple imprisonment. 2. The concise facts of the case are that PW-13 Sampat Raj filed a written report (Ex.P-9) to the SHO, Police Station Bagra on 30.8.2003 at about 3.30 P.M. Stating, inter alia, that at 2.30 O'clock in the Noon when Ms. Bhawna Purohit went to house of Gairi Bai for collecting payment of the supplied milk, as the door was closed she peeped into the house through adjacent window and saw one person wearing stripped shirt and pant, who was standing with back towards window. Upon seeing this, she feared and started shouting. 3. Upon her hue and cry, Suresh Kumar, Sonmal, Unkarmal and other residents of the lane gathered and tried to open the door, When the door could not be opened, few persons climbed to roof, went into the house and opened the 'door. There they saw that a pillow was pressed over mouth of Gairi Bai, she was laying against the wall. No other person was found there. Said person might have escaped upon hearing the voices of gathered people. 4. The persons of Jain Samaj informed to police, removed pillow from mouth of Gairi Bai and placed her on the bed and they found that Gairi Bai has died. It is reported that deceased Gairi Bai used to wear gold chain in her neck as ' also gold-flower (mataji) and two gold rings; which were missing. Gairi Bai was living alone and her son Dilip has been living in Bangalore along with his family. 5. It is reported that deceased Gairi Bai used to wear gold chain in her neck as ' also gold-flower (mataji) and two gold rings; which were missing. Gairi Bai was living alone and her son Dilip has been living in Bangalore along with his family. 5. Upon this report, F.I.R. No. 105/2003 for commission of offence punishable under Sections 302, 397 and 454 I.P.C. was registered. After due investigation, accused-appellant Nena Ram was arrested in the matter and challan was filed against him. Learned trial Judge framed charges against the accused-appellant for commission of aforesaid offences, to which the accused-appellant refused and sought trial. 6. The prosecution examined 15 witnesses and exhibited 25 documents for proving the charges against the accused-appellant. Statement of the accused-appellant was recorded under Section 313 Cr.P.C. and he produced DW-1 Kastura Ram and produced documents Ex.D-1 to Ex.D-6 to rebut his indulgence in the matter. 7. The learned trial Court, after hearing arguments from both the sides, while relying upon the testimony of prosecution witnesses convicted the accused-appellant for the offences under Sections 302, 397 and 454 I.P.C. and sentenced in the manner stated herein above vide judgment dated 27.1.2004. Aggrieved by the impugned judgment of conviction and sentence passed by the trial Court, the accused-appellant preferred this appeal. 8. The learned counsel for the accused-appellant raised number of contentions before us so as to impugn the aforesaid judgment passed by the learned trial Judge and made endeavour to show that the conviction made and sentence imposed upon the accused-appellant is wholly illegal and not sustainable in law, as the prosecution has not only failed to prove its case but the same is also doubtful on account of various reasons. He submitted that the learned trial Court has not appreciated the evidence on the record in right perspective and thereby reached to a wrong conclusion and convicted the accused-appellant on the basis of surmises and conjectures and hence, the accused-appellant deserves to be acquitted of all the charges levelled against him. He further submitted that there are major contradictions, omissions and improvements in the testimony of the prosecution witnesses, which goes to root of the case, which has not been properly appreciated. 9. He further submitted that there are major contradictions, omissions and improvements in the testimony of the prosecution witnesses, which goes to root of the case, which has not been properly appreciated. 9. It is contended by the learned counsel for the accused-appellant that the important witness PW-8 Miss Bhawna Purohit has not supported the prosecution story and she has been declared hostile by the prosecution. All other witnesses - PW-1 Suresh Kumar, PW-2 Meetha Lal, PW-11 Bhika Ram and PW-13 Sampat Raj reached to the spot later on, at the time when accused-appellant was on the spot and their evidence is not reliable. 10. The learned counsel for the accused-appellant emphasised that the prosecution has not come out with true genesis of the occurrence. It is contended :j that the learned trial Court, for convicting the accused-appellant, formulated chain of circumstances in the impugned judgment but the alleged offence are not proved beyond all reasonable doubts. Learned counsel for the appellant vehemently argued that there is no evidence on record so as to connect the accused-appellant with the commission of the crime, recovery of gold chain and gold flower (Mataji ka phool). 11. It is also contended that the testimony of PW-3 Kishore Singh, PW-4 Dilip Kumar (son of the deceased Mst. Gairi Bai), PW-9 Gabruddin, ACJM and Investigating Officer are also not trustworthy. PW-12 Narain Singh and PW-15 Lumba Ram have also not supported the prosecution story. At the most, if recovery is proved then also the offence does not travel beyond Section 412 I.P.C. 12. By opposing the appeal, learned Public Prosecutor submitted that the trial Court has considered in detail all evidence of this case. It is submitted that even if witnesses PW-8 Miss Bhawna Purohit, PW-12 Narain Singh and PW-15 Lumba Ram have not fully supported the prosecution case and have been declared hostile, even then it cannot affect the credibility of other witnesses of the prosecution, in whose testimony there is neither any improvement nor any material contradiction' and they are reliable witnesses in the facts and circumstances of the case. 13. It is further submitted by the learned Public Prosecutor that the site inspection report (Ex.P-15) was duly prepared and proved and looking to the site plan, statements of the prosecution witnesses are natural and reliable. 13. It is further submitted by the learned Public Prosecutor that the site inspection report (Ex.P-15) was duly prepared and proved and looking to the site plan, statements of the prosecution witnesses are natural and reliable. The evidence of recovery of Articles 1 and 2 (gold chain and Mataji ka phool) are also reliable and proved by the evidence of the prosecution. 14. It is also submitted that the incident occurred on 30.8.2003 at 2.45 P.M. and the F.I.R. was lodged at about 3.30 P.M., in such a short period that no story could have been concocted by the natural witnesses produced by the prosecution. 15. Learned Public Prosecutor further vehemently submitted that, in fact, it is a case fully proved by the prosecution and guilt is proved beyond doubt against the accused-appellant. There is no reason to disbelieve the prosecution evidence and also that the prosecution has offences, punishable with imprisonment on account of robbery and cruel murder of old-age alone-living woman Mst. Gairi Bai, beyond doubt so as to establish that it was accused-appellant who committed the instant crime. It is further submitted that the accused-appellant has been rightly convicted by the learned trial Court, hence, the appeal of the accused-appellant lacks merit and the same is liable to be dismissed. 16. We have considered submissions of learned counsel for the accused-appellant as well as learned Public Prosecutor and also gone through entire evidence adduced by both the sides in the matter as also record of the trial Court. It is apparent from the written report (Ex.P-9) submitted to police by PW-13 Sampat Raj Solanki on 30.8.2003 at 3.30 P.M. at the spot village-Siyana that the deceased Mst. Gairi Bai was living alone at her house and her son PW-4 Dilip Kumar was living at Bangalore. Lalit Kumar informed to police about the incident and police, after recording Rojnamcha report Ex.P-14, immediately reached at the spot. In this way, it is clear that in this case the First Information Report was promptly lodged, without any delay. 17. During trial, the prosecution produced as many as 15 witnesses including all circumstantial, recovery, medical and police witnesses and ubmitted 25 documents in evidence. PW-1 Suresh Kumar narrated facts of the incident and supported the prosecution story. PW-2 Meetha Lal, PW-11 Bhika Ram and PW-13 Sampat Raj have also supported the prosecution story. 17. During trial, the prosecution produced as many as 15 witnesses including all circumstantial, recovery, medical and police witnesses and ubmitted 25 documents in evidence. PW-1 Suresh Kumar narrated facts of the incident and supported the prosecution story. PW-2 Meetha Lal, PW-11 Bhika Ram and PW-13 Sampat Raj have also supported the prosecution story. There is 1io reason to disbelieve the testimony of above witnesses. 18. In our opinion, recovery of Articles 1 and 2 (gold chain and Mataji ka Phool) and the documentary evidence - Ex.P-12 (information by the accused under Section 27 of the Evidence Act), Ex.P-3 (recovery memo) are also proved) y the testimony of prosecution witnesses. PW-4 Dilip Kumar, son of the deceased Mst. Gairi Bai, clearly identified Articles 1 and 2 before PW-9 Gabruddin, ACJM by memo of identification (Ex.P-7). Accused-appellant Nena Ram was arrested on 3.9.2003 vide arrest memo (Ex.P-2) and on the same day, 'upon information by the accused-appellant (Ex.P-12) Articles 1 and 2 were recovered and seized vide seizure memo (Ex.P-3). Some injuries were found on, the body of the accused-appellant as per statements of PW-10 Dr. J.P. Choudhary. 19. It is undisputed that the deceased Mst. Gairi Bai met with homicidal death due to "asphyxia" as per postmortem report (Ex.P-8). Therefore, the, learned trial Court rightly concluded that the circumstances provided clearly :point towards guilt of the accused-appellant. 20. In our opinion, the defence version is not trustworthy. As per evidence on record, the prosecution witnesses reached on the spot immediately 'after the incident and saw the accused-appellant running from the spot. In the totality of prosecution evidence, facts and circumstances of the case, we do not 'find anything wrong in the findings given by the learned trial Court and find the trial Court fully justified in holding the accused-appellant guilty of committing the alleged offence and sentencing him therefore accordingly. 21. In view of the above, we are of the considered opinion that there is no merit in this appeal. The conviction and sentence awarded to the accused-appellant vide judgment dated 27.1.2004 is legal, just and proper, based on reliable evidence produced by the prosecution and the material on record. Consequently, the appeal by the appellant-accused fails and the same is hereby dismissed.Appeal dismissed. *******