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2013 DIGILAW 1915 (RAJ)

Ram Kumar v. State of Rajasthan

2013-10-31

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
Hon'ble GUPTA, J.—This DB Cr. Appeal under Section 374 Cr.P.C., has been filed against the judgment and order dated 27.3.2004 passed by Additional Sessions Judge (Fast Track), No.1, Kota in Sessions Case No.141/2003 whereby the present appellant has been convicted and sentenced as under:- Appellant Ram Kumar : Under Section 302: to undergo life imprisonment and to pay a fine of Rs.5000/- in default of payment of fine to further undergo simple imprisonment for six months. 2. The short facts giving rise to this appeal are that a written report (Ex.P/28) was lodged by PW/21 Ranveer Singh at police Station Udyog Nagar, Kota on 5.7.2003 with the averment that on 4.7.2003 at about 6.30 p.m., he was working at Sriram Raiyans Factory at that time, his son Sheru and accused appellant Ramkumar came there to deliver him food and thereafter they went away stating that they are going to home. After completion of his duty, he came to his house in the night, Sheru his son was not there and his wife has told him that Ramkumar has come along with the motor cycle and it has been stated by the Ramkumar that Sheru dropped himself at DCM Circle and he came there to drop the motor cycle. Next day on 5.7.2003 at 7.00 in the morning, Ramkumar and his wife came there and Ramkumar told him that on the road of DCM Bridge to Ummedganj, Sheru is lying dead. The information also went there and saw that dead body of Sheru lying there and the suspicion has been caste by the information that Ramkumar has murdered his son. On this FIR No.236/2003 has been lodged under Section 302 IPC and after investigation charge-sheet has been filed against the appellant for the offence under Section 302 IPC. The case was committed to Sessions Judge and it was transferred to Additional Sessions Judge (Fast Track) No.1, Kota. The charges have been framed against the appellant for the offence under Section 302 IPC which was denied by the accused and h claimed to be tried. To prove the case against the present appellant, prosecution has examined PW/1 Mohan Singh S/o Bhim Singh, PW/2 Sukhbeer Singh, PW/3 Man Singh, PW/4 Rupendra Singh, PW/5 Mohan Singh S/o Chhote Singh, PW/6 Gopal Singh, PW/7 Ramvilas, PW/8 Babulal Meena, PW/9 Rajendra Singh, PW/10 Murlidhar, PW/11 Narpat Singh, PW/12 Nand Singh, PW/13 Dr. To prove the case against the present appellant, prosecution has examined PW/1 Mohan Singh S/o Bhim Singh, PW/2 Sukhbeer Singh, PW/3 Man Singh, PW/4 Rupendra Singh, PW/5 Mohan Singh S/o Chhote Singh, PW/6 Gopal Singh, PW/7 Ramvilas, PW/8 Babulal Meena, PW/9 Rajendra Singh, PW/10 Murlidhar, PW/11 Narpat Singh, PW/12 Nand Singh, PW/13 Dr. G.S. Bishnar, PW/14 Dinesh, PW/15 Nissar Khan, PW/16 Prahlad, PW/17 Ramkishan, PW/18 Abhimanu, PW/19 Pushpendra Singh, PW/20 Chandra Devi, PW/21 Ranveer Singh, PW/22 Mukut Bihari, PW/23 Shailendra, PW/24 Abhay Singh, PW/25 Vikky PW/26 Shiv Singh and PW/27 Ghasilal and exhibited documents Ex.P/1 to P/37. The accused-appellant has been examined under Section 313 and in defence DW/1 Smt. Urmila has been produced and to support his case, the defence has relied on Ex.D/1 to D/4. After conclusion of trial, the present appellant has been convicted and sentenced as indicated above. Hence, this appeal has been preferred. 3. The contention of the present appellant is that the case of the prosecution is based on circumstantial evidence but prosecution has failed to prove the chain of circumstances. FIR is ante time. The investigation has started prior to it hence could not be relied upon. No motive has been assigned to the present appellant to commit this heinous crime. Witnesses of last-seen PW/12 Nand Singh and PW/23 Shailendra Singh are not worth reliance. Recoveries have been made in presence of only interested witnesses. The post-mortem report reveals complete absence of any Alcohol in he body of the deceased contrary to the version of last seen witnesses PW/12 Nand Singh and PW/23 Shailendra Singh. There is no evidence that the present appellant has administered any poisonous substance forcibly to the deceased and the present appellant be acquitted. Per contra, the contention of the learned Public Prosecutor is that deceased was last seen with the appellant and witnesses PW/12 Nand Singh and PW/23 Shailedra Singh has categorically proved this fact and there is no reason to disbelieve these witnesses. FIR has been lodged immediately, hence no concoction can be attributed to it. It is true that clear-cut motive has not been set up in FIR but in court-statement father has stated that appellant was having intimate relations with the wife of deceased. FIR has been lodged immediately, hence no concoction can be attributed to it. It is true that clear-cut motive has not been set up in FIR but in court-statement father has stated that appellant was having intimate relations with the wife of deceased. Recovery of poisonous substance has been made at the information and instance of the present appellant which matches with the visceras of the deceased which also corroborates the ocular evidence presented by the prosecution and there is no infirmity in the impugned judgment, no interference is needed. 4. Heard the learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 5. PW/21 Ranveer Singh has lodged the First Information Report and his contention is only that on the fateful day, deceased along with appellant came to his factory to deliver him food and thereafter when he went to the home, he found that his son has not returned home. He has also testified the fact that next day of incident, in the morning, Ramkumar's wife came to his house to tell that died body of Sheru is lying near the canal. PW/20 Smt. Chandra Devi, mother of the deceased has stated that on 4.7.2003 Ramkumar phoned on their landline phone three times and inquired about the deceased and deceased talked him on phone thereafter he came there and deceased and appellant both went to deliver the food to his father on motor cycle and in the night at about 8.0 p.m. Ramkumar alone came there with motor cycle of deceased and stated that deceased is at DCM and he has instructed him to drop the motor cycle at the house. Thus, both these witnesses have stated that deceased went with the present appellant and thereafter the dead body of Sheru has been found. 6. Much has been stated about the veracity of these two witnesses but all attack on the evidence of these two witnesses are futile as accused himself has admitted in his statement under Section 313 that Sheru has delivered him motor-cycle at about 7.00 p.m. and he left the motor cycle at the house of the deceased. 6. Much has been stated about the veracity of these two witnesses but all attack on the evidence of these two witnesses are futile as accused himself has admitted in his statement under Section 313 that Sheru has delivered him motor-cycle at about 7.00 p.m. and he left the motor cycle at the house of the deceased. Hence, averments as stated by PW/21 Ranveer Singh and PW/20 Smt. Chandra Devi, father and mother of deceased, has been categorically admitted by the accused appellant himself that he was with the deceased upto the night of 4.7.2003 and on his instructions, he left the motor-cycle at his house, hence no infirmity could be attached to the evidence of PW/21 Ranveer Singh and PW/21 Smt. Chandra Devi. 7. Apart from the evidence of PW/21 Ranveer Singh, father and PW/20 Smt. Chandra Devi, mother of the deceased of Ramkumar accompanied the deceased lastly and thereafter his dead body has been found, PW/12 Nand Singh has stated that on 4.7.2003 he was coming from Kansua, in the way, he saw Ramkumar and Sheru both scuffling and he has identified the accused-appellant also. PW/23 Shailendra Singh has also stated that when he was coming from Kansua, his scooter get out of order. Nand Singh PW/12 came there on tractor, he loaded the scooter on the tractor and at that time behind canal of Rayons Guest House, he saw Ramkumar and Sheru scuffling each other. Thus, both these two witnesses have also corroborated the fact that deceased was last seen with the present appellant. 8. The counsel for the appellant has objected about the fact that there are three ways from Kathoon to Ummed Ganj and other routes are shorter routes but nothing has been put in the cross-examination of this nature. Further some discrepancies as regards to time of last seen together of the two by the prosecution witnesses has also been disputed. PW/12 Nand Singh has stated that at 7.30 p.m., he saw the deceased and the appellant together. PW/23 Shailendra Singh has not narrated any specific time as regards to the fact but in cross-examination, he has stated that his scooter has gone unserviceable and Nand Singh came there at 6.30 p.m. but discrepancy as regards to time is minor and not of much significance. PW/23 Shailendra Singh has not narrated any specific time as regards to the fact but in cross-examination, he has stated that his scooter has gone unserviceable and Nand Singh came there at 6.30 p.m. but discrepancy as regards to time is minor and not of much significance. The accused appellant has also admitted in his statement that at about 7.00 p.m., he received the motor cycle from deceased. Thus time mentioned by PW/23 Shailendra Singh is 6.30 p.m. PW/12 Nand Singh is 7.30 and accused appellant himself has stated the time 7.00 p.m. Hence this discrepancy cannot be treated significant to discard the testimony of two witnesses who have last seen the accused appellant with the deceased. 9. The other contention of the appellant is that PW/12 Nand Singh is well acquainted with the deceased and hence he is an interested witness. Nand Singh PW/12 has stated that Sheru and his father were resided in the same locality and they are of same community, but this fact alone cannot caste shadow on the veracity of witness Nand Singh PW/12. He has specifically stated that with Sheru he has no intimacy or any rivalry, he only knows him. 10. The other contention of the counsel for the appellant is that Nand Singh PW/12 and Shailendra Singh PW/23 both were known to the parties and when deceased and appellant were quarreling, inspite of this they have not stopped there to intervene and hence their testimony cannot be relied upon. Only due to this fact that witnesses has not intervened, their testimony cannot be looked by suspicion. The learned Public Prosecutor has rightly pointed out that nobody wants to involve in the matters of others and when both the accused and appellant were drunken, the witness has chosen not to intervene. 11. The other contention of the appellant is that both these witnesses have not stated anybody that they have seen the appellant and deceased together, their conduct is unnatural and they cannot be reliable and they are planted witnesses only. PW/12 Nand Singh has stated that on third day's ritual, he told the facts to the father of the deceased and police called him, he went to testify the fact and his statement has been recorded thereafter. PW/12 Nand Singh has stated that on third day's ritual, he told the facts to the father of the deceased and police called him, he went to testify the fact and his statement has been recorded thereafter. PW/23 Shailendra Singh has also stated that he narrated the facts to the father of the deceased and thereafter his statement have been recorded hence, the prosecution has proved the fact that both these witnesses has narrated the fact to the father of the deceased which is natural conduct and thereafter their statements have been recorded. Both these witnesses were not intimate to any of the party hence immediate reaction was not expected from them. It is true that statements of witnesses have been recorded after delay on 10th July, 2003 but inaction of Investigating Officer could not give any strength to the defence, reliance has been placed on Ganga Singh vs. State of Madhya Pradesh, 2013 IX AD (S.C.) 91 wherein it was held: "The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of court the accused is entitled to acquittal because of such doubt." But in the present case, PW/12 Nand Singh and PW/23 Shailendra Singh have testified the fact that they have last seen the deceased with the appellant. PW/21 Ranveer Singh and PW/20 Smt. Chandra Devi has also stated the fact that the Ramkumar and his wife has informed them that the body of the deceased is lying at a particular place and this fact has been corroborated by the defence witness. DW/1 Smt. Urmila also who is the wife of deceased has stated that his husband has told him that Sheru is lying dead at a particular place and thereafter, she and her husband went to the house of Sheru. Thus, the statement of PW/20 Chandra Devi and PW/21 Ranveer Singh is in conformity with the statement of accused-appellant himself and defence witness DW/1 Smt. Urmila. Thus, the statement of PW/20 Chandra Devi and PW/21 Ranveer Singh is in conformity with the statement of accused-appellant himself and defence witness DW/1 Smt. Urmila. Thus, the prosecution has proved the fact that on the fateful day, present appellant went with the deceased on his motor-cycle, thereafter, he alone came there at the house of the deceased to deliver the motor-cycle and he was the first who has informed the family of the deceased that the body of Sheru is lying at a particular place and Nand Singh PW/12 and Shailendra Singh PW/23 has also seen the appellant with the deceased. After going from the house of the deceased, this was only within the knowledge of the appellant that what happened to deceased and he has not explained the same. 12. PW/27 Ghasiram is the Investigation Officer, he has stated that the appellant gave him information about the recovery of chemical from his house and on his information bottle of chemical has been recovered from his house vide memo Ex.P/8 by PW/26 Shiv Singh. PW/7 Ram Vilas has also supported the recovery. The contention of the counsel is that witness of locality has not been summoned. Both the witnesses are relative to the deceased. PW/18 Abhimanyu Singh is the brother-in-law of the deceased and PW/7 Ram Vilash is also neighbour of the deceased. It is true that witnesses are related somehow with the deceased but only due to the relationship, their testimony cannot be denied and fact of recovery has also been testified by the Investigation Officer Shiv Singh (PW/26) and reliance has been placed on State of U.P. vs. Arun Kumar Gupta, AIR 2003 SC 801 and no question mark can be put on the testimony of Investigation Officer who is an independent witness. The other contention of the appellant is that no motive has been attributed to commit this heinous crime. The other contention of the appellant is that no motive has been attributed to commit this heinous crime. It is true that in FIR, no motive has been set up by the informant but PW/21 Ranveer Singh has stated that Ramkumar was suspicious about the fact that deceased was having relations with his wife, hence motive has also been set up by the prosecution before the Court and learned Public Prosecutor has relied upon Nathuni Yadav vs. State of Bihar, (1998) 9 SCC 238 wherein it has been held: "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." 13. In the light of the above, in the present case, the prosecution has amply proved the fact that deceased last went with the appellant then appellant alone came with his motor cycle. Evidence of this last seen the appellant with deceased has also been produced by the prosecution and empty pouch of liquor has also been seized from the scene of occurrence and dead body was also found where PW/12 Nand Singh, PW/23 Shailendra have seen them last. 14. Vide Ex.P/18, chemical has been recovered and viscera has been taken at the time of the post-mortem, FSL report P/36 speaks that visceras taken from the body of the deceased and liquid recovered at the instance of the prosecution were found acidic in nature and gave positive tests for the presence of sulphate ions. This matching also gives strength to the prosecution that the present appellant was in his possession substance by which death of the deceased has been caused. PW/13 Dr. This matching also gives strength to the prosecution that the present appellant was in his possession substance by which death of the deceased has been caused. PW/13 Dr. G.S. Vishnar has conducted the post-mortem of the deceased and Ex.P/22 post-mortem proves that death has been due to shock as a result of suspected corrosive poisoning hence cause of death also relates the present petitioner with the crime as same substance has been recovered at his instance. PW/13 Dr. G.S. Vishnar has also testified the fact that deceased was having 11 injuries on his person which also strengthened the case of the prosecution that some mischief has been caused with the deceased prior to his death and present appellant alone was with him before his death. The counsel for the appellant has also relied on Kasim Beg and Anr. vs. State of Raj., RCC 2006(2) 626 where on the facts of a particular case, the judgment was delivered. Thus, the various circumstances projected by the prosecution complete the chain of link and conclusively proves that it was only the accused appellant and none else who has committed the murder of the deceased. The appellant was last seen with the deceased. The defence witness has corroborated the story adduced by the prosecution, recovery and FSL report is also corroborative to the case of the prosecution. 15. In the light of above discussion, there is no reason to interfere with the reasoning and conclusion of the learned court below, we are not persuaded with the arguments of the learned counsel for the appellant and the appeal is liable to be dismissed. 16. Consequently, the appeal fails and is dismissed.