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2014 DIGILAW 121 (RAJ)

Ashok @ Meenda v. State of Rajasthan

2014-01-08

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT By the Court The accused appellants have preferred this appeal under Section 374(2) Cr.P.C. against the judgment dated 22.07.2006 passed by the learned Additional District and Sessions Judge, Khetri, District Jhunjhunu in Sessions Case No.3/2004, whereby they have been convicted and sentenced as under :- “For the offence under Section 302 read with Section 34 IPC to Life Imprisonment each with fine of Rs.5,000/- each and in default of payment of ine, two months' additional Rigorous Imprisonment Each. For the offence under Section 448 IPC to one year Rigorous Imprisonment each.” Both the sentences were ordered to run concurrently. 2. This criminal case was initiated on a report (Ex.P/10) lodged by one Mehtab Singh at Police Station Buhana, District Jhunjhunu on 02.06.2002. It was alleged in the report that in the night, intervening 1-2nd June, 2002, his cousin brother Lakhbeer Singh son of Sohan Lal Jat alongwith his wife Smt. Santosh Devi were sleeping outside the house, located in their agricultural field. It was further alleged that the accused Anil and Ashok sons of Mohar Singh, who are also the husbands of Smt. Sushila and Suman respectively, murdered Lakhveer Singh and his wife Smt. Santosh and ran away. Further, it is alleged that the crime was committed because the deceased had not sent the daughters to the house of the accused appellants. It is also mentioned in the report that when Ramswaroop and Mehtab Singh, complainant were unloading manure from the bullock cart, they had suddenly heard noises coming from nearby fields and at the place of incident where they saw that the accused Anil and Ashok were running away towards the village Kalwa, having weapons in their hand. On the aforesaid report, a regular first information report (135/2002) came to be registered at Police Station Buhana, District Jhunjhunu for the offences under Section 302/34 IPC. Thereafter, the investigation commenced and on conclusion of the same, charge sheet came to be filed on 13.02.2004 before the concerning Magistrate. As the case was a one, which was triable by Court of Sessions, the same was sent to the learned Sessions Judge, Jhunjhunu, who had transferred it to the Court of Additional Sessions Judge, Khetri for trial. Subsequently, the trial commenced after framing of charges by the learned court below on 16.08.2004 for the offences under Section 448, 302 and in the alternative Section 302/34 IPC. Subsequently, the trial commenced after framing of charges by the learned court below on 16.08.2004 for the offences under Section 448, 302 and in the alternative Section 302/34 IPC. The charges were read over to the accused appellants which were denied by them and they had claimed for trial. The prosecution had, in support of its case produced 15 witnesses and got 49 documents exhibited, which were collected during the course of investigation. Later on, the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they had stated that they have been falsely implicated. The defence did not produce any witness in support of its case. However, it had produced four documents for their defence. On conclusion of the trial, the learned court below had convicted and sentenced the accused appellants as aforesaid. Hence, the present appeal has been filed by the accused appellants and the same has come before us for hearing. 3. The learned counsel for the accused appellants has extensively taken us through the evidence on record of the learned trial court and made submissions so as to bring home his point that the learned trial court has committed illegality in passing the impugned judgment and the same deserves to be quashed and set aside. He has further submitted that the entire prosecution case revolves around the testimony of Mehtab Singh (PW-2). According to him, he was a chance witness and is neither reliable nor trustworthy. Further, it has been submitted by the learned counsel for the accused appellants that though the incident had taken place in the previous night but the report had come to be lodged on the next day. Therefore, it has been submitted that in the facts and circumstances of the present case, the delay in lodging the report is fatal. The learned counsel for the accused appellants has also submitted that it was in fact the prosecution witness Mehtab Singh, who had committed the crime and had put the blame on the accused appellants for the purpose of grabbing their immovable property. In the last, it has been submitted by the learned counsel for the accused appellants that Anil Kumar @ Ramphal was a juvenile at the time of his arrest i.e. 29.05.2003. Accordingly, it has been submitted that the accused appellant Anil Kumar @ Ramphal be set at liberty forthwith on this count alone. In the last, it has been submitted by the learned counsel for the accused appellants that Anil Kumar @ Ramphal was a juvenile at the time of his arrest i.e. 29.05.2003. Accordingly, it has been submitted that the accused appellant Anil Kumar @ Ramphal be set at liberty forthwith on this count alone. Learned counsel for the accused appellant has placed reliance on the case of Pratap Singh vs. State of Jharkhand, (2005) 3 SCC 551 . 4. Confronting the submissions made by the learned counsel for the accused appellants, the learned Public Prosecutor has supported the judgment passed by the learned trial court. He has submitted on the basis of the evidence on record that the statement of Smt. Sushila fully corroborates the statement of Mehtab Singh. As mentioned above, Smt. Sushila is none else but the wife of the accused appellant Ashok @ Meenda. The learned Public Prosecutor has fairly submitted that on careful perusal of the statement of Smt. Sushila and Mehtab Singh, the only difference which is apparent, is of minor nature, which emerges in regard to the name of weapon mentioned by them. One has stated that the accused persons were carrying gandasi whereas the other witness has said that they were carrying barchhi. However, according to the learned Public Prosecutor, there is no dispute about the fact that the accused appellants were carrying sharp edged weapons. Taking into consideration the overall facts and circumstances and on the strength of evidence produced before the learned trial court, the learned Public Prosecutor has submitted that it leads to no other conclusion except that it was the accused appellants alone who had committed the crime. The learned Public Prosecutor has also invited out attention with regard to the conduct of the accused appellants who had remained absconded for about a year after the incident. It was only on 29.05.2003 that the accused appellants were arrested whereas the incident took place on 02.06.2002. Therefore, the learned Public Prosecutor has submitted that there is no illegality in the judgment passed by the learned trial court and the same deserves to be upheld. 5. We have given our thoughtful consideration to the submissions made by the counsels for the rival parties and have carefully perused the evidence on record of the trial court produced by the prosecution. 6. 5. We have given our thoughtful consideration to the submissions made by the counsels for the rival parties and have carefully perused the evidence on record of the trial court produced by the prosecution. 6. Broadly speaking, the case of the prosecution is that the accused persons had committed the murder of Lakhveer Singh and his wife Santosh Devi in the night of 1-2/06/2002. On hearing the hue and cry, Mehtab (PW-2) and Ram Swaroop reached the place of incident and saw the accused appellants beating the deceased persons. On having seen that the informant Mehtab and Ram Swaroop had reached the place of incident, the accused fled away. They were chased by the informant and other persons for some distance but the accused persons succeeded in running away. It is to be noted that the two daughters of the deceased, namely; Sushila and Suman, were married to the accused appellants. It was on account of not sending the daughters to the in-laws that the accused persons had given threatening to the deceased and thereafter committed their murder. The deceased persons had sustained about 11-12 injuries each which were proved by Dr. Vidhyadhar (PW-7). Further it is important to note that accused Ashok had written a letter (Ex.P-15) to the informant Mehtab (PW-2) stating that in case Sushila and Suman were not sent by 31st July, then the accused persons would make a river of blood flow. Similar threatening was given to Rajveer (PW-4) through a letter (Ex.P-17). Another letter (Ex.P-18) of the same nature was written to Harphool (PW-5). 7. On consideration of the statements of the prosecution witnesses in depth leaves no room of doubt that the crime in the present case was committed by the accused appellants and none else. Mehtab Singh (PW-2) has deposed that the accused persons were annoyed with the deceased because they were not sending their daughters, who had been married with the appellants to the house of in-laws. Further he had deposed that the accused persons had given a threatening to the deceased that otherwise they would murder the deceased persons and take away his daughters. The fact with regard to threatening has been corroborated by the statement of Sushila (PW-3). She has stated that after having received the threat, both the sisters started sleeping with their grand-mother and their mother and uncle had been sleeping on the well. The fact with regard to threatening has been corroborated by the statement of Sushila (PW-3). She has stated that after having received the threat, both the sisters started sleeping with their grand-mother and their mother and uncle had been sleeping on the well. Though there is not much relevance of motive in a case where there are eye witnesses, but still in the instant case motive in the form of committing the crime for taking away the two ladies had very much existed. Further, the statement of Harphool (PW-5) corroborates the fact with regard to threatening, as given in letter (Ex.P-18). He had stated that the said letter had been written by accused Ashok and he had deposed so because he recognizes his hand-writing of which he is conversant since long, as both of them used to go to the school together. Since the school days, Harphool Singh had been seeing the hand-writing of accused Ashok. In the said letter (Ex.P-18), a time limit had been given that two ladies should be sent to the in-laws by 31st July or thereafter Lakhveer Singh and Santosh would be murdered. He has further deposed that in fact it was declared by the accused persons that on failure to send the ladies, their parents would be killed. Mehtab Singh (PW-2) has deposed that he along with Ram Swaroop had gone to their fields for spreading manure. Soon after reaching the agricultural field, they heard a hue and cry from the side of the well of deceased Lakhveer. He and Ram Swaroop left the bullock cart and rushed towards the well. On having seen the accused beating the deceased persons, they asked them as to what they were doing. When the said witnesses reached near the accused, who were giving beating to the deceased persons by Barchchi, they ran away. Mehtab and Ram Swaroop chased them, but could not succeed. Thereafter, the said witnesses came back to the well and saw that Lakhveer Singh and Santosh were lying in a pool of blood. On having found that both the injured persons have died, Mehtab and Ram Swaroop went to the village and gave information about the incident to some of the eminent persons. This clearly shows that Mehtab (PW-2) and other person Ram Swaroop were the eye witnesses of the case and had seen the occurrence. On having found that both the injured persons have died, Mehtab and Ram Swaroop went to the village and gave information about the incident to some of the eminent persons. This clearly shows that Mehtab (PW-2) and other person Ram Swaroop were the eye witnesses of the case and had seen the occurrence. So far as Ram Swaroop is concerned, he could not be produced in the court as he became insane. A certificate in this regard had also been submitted. Therefore, there is no question of with-holding of other witness, namely; Ram Swaroop, by the prosecution. 8. The fact that the accused persons had committed the offence of murder by sharp edged weapon has been corroborated by the statement of Dr. Vidhyadhar (PW-7) and the medical evidence on record as Ex.P-20 and Ex.P-21. After arrest of the accused Ashok and on his information (Ex.P-37) one Barchchi (Ex.P-38) was recovered from his residence. Likewise, the investigation officer Rajendra Meena (PW-12) had, on the information (Ex.P-40) given by the accused Anil, made the recovery of knife (Ex.P-41). Therefore, the prosecution has proved beyond doubt that the accused appellants had committed the murder of Lakhveer and Santosh. It is also established that it was on account of not having sent the wives of the accused persons to the in-laws place that they had committed murder. 9. In view of the aforesaid consistent evidence of the prosecution, the statements of the witnesses who had on some occasion deposed that the weapon of offence carried by the accused was 'gandasi', is not of much importance and the case of the prosecution cannot be wholly thrown out on this count. The fact remains that the injuries were caused by sharp edged weapon. 10. The aforesaid facts and circumstances, coming from the material on record, also establishes that the offence had been committed by both the accused persons after giving threat to the deceased and the crime had been committed by them in the night intervening 1-2/6/2002, in furtherance of their common intention. Both the accused persons had jointly and with common intention murdered Lakhveer and his wife Santosh by sharp edged weapon while they were sleeping outside their house. The offence was committed by them with a sharp edged weapon with full knowledge that the injuries so inflicted were sufficient in the ordinary course of nature to cause death. Both the accused persons had jointly and with common intention murdered Lakhveer and his wife Santosh by sharp edged weapon while they were sleeping outside their house. The offence was committed by them with a sharp edged weapon with full knowledge that the injuries so inflicted were sufficient in the ordinary course of nature to cause death. It is also apparent from the perusal of the injuries sustained by the deceased persons, which were 11 in number, including cut wounds on the hands, legs, head, face, mouth, chest and neck. The said injuries were not only on the vital parts of the body but also resulted in fracture of head and skull. In such a situation, there remains no hesitation for us to conclude that the finding arrived at and the conviction awarded by the trial court, for the aforesaid offences, is just and proper. 11. The counsel for the defence has submitted that there is contradiction in the statements of prosecution witnesses, in respect of weapon of offence. However, as submitted here-in-above, it is an admitted position that the injuries sustained by the deceased were by sharp edged weapon and, therefore, the question as to whether the weapon used was 'gandasi' or 'Barchchi' looses its significance. In no circumstance, the said argument creates any doubt on the prosecution case and that the accused is to be acquitted by giving benefit of the same. 12. Another contention raised on behalf of the appellant was with regard to proving of hand-writing of the accused persons on the letters which have been filed by the prosecution. It is a settled principle of law that the hand-writing can be proved by three modes; (i) deposition by a person who is conversant with such hand-writing; (ii) opinion of an expert; and (iii) comparison of the hand-writing by the court. In the instant case, the prosecution has proved the hand-writing to be that of the accused persons through the statements of the persons who had known them since child-hood and were well conversant with their handwriting. The contention that the first version of the prosecution was one which was given on telephone, do not have any force. In the instant case, the prosecution has proved the hand-writing to be that of the accused persons through the statements of the persons who had known them since child-hood and were well conversant with their handwriting. The contention that the first version of the prosecution was one which was given on telephone, do not have any force. The said information which was given by Mehtab Singh (PW-2) was no doubt recorded in the rojnamcha, but considering the prosecution evidence on record including the statement of the informant Mehtab Singh (PW-2) which is very categorical, in our considered opinion, non-registration of the telephonic information by the police do not lead to, in the facts and circumstances of the present case, any adverse inference. 13. So far as the submission made on behalf of the accused appellant Anil Kumar that he was a juvenile on the date of arrest and as such he be released from jail immediately, it would suffice to say that the same neither has any force nor deserves consideration by us at this stage. It is note worthy that the said contention was never raised before the trial court nor in the present appeal filed before the Court. Taking up of the said argument at the proper time and before the trial court was necessary for the simple reason that the age of the accused Anil Kumar was to be determined by the trial court, on the basis of evidence led by the parties. Neither before the trial court at the stage when the evidence was being recorded nor by way of any documentary evidence before us, the accused appellant Anil Kumar has been able to make out a primafacie case that he was juvenile at the relevant time. In such a situation, there is nothing before this court to appreciate such argument which is a question of fact nor it is justified for this court to give any finding in this regard, in this appeal. 14. For the reasons mentioned here-in-above and on thorough consideration of the evidence on record of the trial court, the inevitable conclusion is that the prosecution has succeeded in proving its case beyond reasonable doubt that the accused appellants had committed the crime. 14. For the reasons mentioned here-in-above and on thorough consideration of the evidence on record of the trial court, the inevitable conclusion is that the prosecution has succeeded in proving its case beyond reasonable doubt that the accused appellants had committed the crime. There is no iota of doubt as sought to be raised by the defence counsel, through his contention, because there is no material to form the basis and corroborate such argument which have been raised before us. The motive and object behind the offence committed in the present case is not only apparent but well established from the evidence produced by the prosecution, by way of letters, where specific threatening was given to the deceased by the accused appellants that in case the two ladies were not sent to the in-laws house by 31st July, then they would be done to death. The intention to commit the offence of murder is also clearly established on perusal of the medical evidence on record which goes to show that the injuries have been caused in a brutal manner by sharp edged weapon to both the deceased persons. The accused appellants had also proceeded together to achieve the common object and no illegality what-so-ever has been committed by the learned trial court in awarding the conviction to them. 15. In the result, this appeal is devoid of merit and is accordingly dismissed. The impugned judgment dated 22.07.2006 passed by the learned Additional District and Sessions Judge, Khetri, District Jhunjhunu is affirmed.