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2018 DIGILAW 1393 (RAJ)

Kailashnath v. State of Rajasthan

2018-06-05

MOHAMMAD RAFIQ, PANKAJ BHANDARI

body2018
JUDGMENT Mohammad Rafiq, J. - These two appeals are directed against the common judgement dated 21 st July, 2016. The appeal no.212/2017 has been filed by the accused-appellant Kailash Nath challenging his conviction for offences as under: " Under Section 302 IPC: Life imprisonment with fine of Rs.25,000, in default of which, to further undergo rigorous imprisonment of two years. Under Section 201 IPC : Rigorous imprisonment of five years with fine of Rs.5,000, in default of which, to further undergo six months rigorous imprisonment. Under Section 3-2(V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act r 1989: Life imprisonment with fine of Rs.25,000, in default of payment of fine to further undergo two years rigorous imprisonment. All the sentences were ordered to run concurrently." 2. The appeal no.1021/2016 has been filed by the State on grant of leave by this Court praying for award of capital punishment to the accused Kailash Nath. 3. Facts of the case are that on 19 th July, 2012 at about 9.30 am, a telephonic call was received at Police Station Pirawa that a dead body of unknown person without head and foot was lying near talai on kachchi gadar leading to Pirawa. Shyam Singh, Assistant Sub-Inspector of Police along with certain other persons reached the place. One photo was found in the pocket of the deceased, which was identified to be that of appellant-Kailash Nath son of Onkarnath. On the basis of the photograph, Mohan Bai wife of Kailash Nath believing that it was dead body of Kailash Nath, submitted a written report alleging that her husband Kailash Nath has been murdered by some other person. It was alleged that there was some dispute between her husband and Vijay Raj Sodhya about some money transaction. Vijay and Devi Lal Patidar had subjected informant-Mohan Bai and her children to beating about 20-25 days ago. She doubted the role of these person in the murder of her husband. 4. On receipt of the written report, first information report was chalked out for offence under Sections 302 and 201 IPC and investigation commenced. During the course of investigation, as per the information received in the Police Station about head, foot and fingers of the human body were also recovered from the well of Chander Singh. 4. On receipt of the written report, first information report was chalked out for offence under Sections 302 and 201 IPC and investigation commenced. During the course of investigation, as per the information received in the Police Station about head, foot and fingers of the human body were also recovered from the well of Chander Singh. At that stage, the informant-Mohan Bai and other family members told the police that these body parts do not belong to Kailash Nath. Two separate postmortems were conducted by the medical report. Postmortem report of one body part that was recovered earlier dated 19 th July, 2012 is Ex.P66 and the postmortem report of the remaining part of the body dated 21 st July, 2012 is Ex.P67. DNA sample of the deceased was taken. During further investigation, dead body was identified to be that of Kajod Bairwa son of Ramchander Bairwa of Kota. Accused- appellant was arrested on 29 th July, 2012. Charge sheet was filed for offence u/ss. 302 and 201 IPC and Section 3-2(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused-appellant, which he denied and claimed to be tried. Prosecution produced 50 witnesses in support of its case and exhibited 104 documents. The accused did not produce any evidence in defence, but in examination under Section 313 Cr.P.C. alleged false implication. The trial court after hearing both the parties, convicted and sentenced the accused- appellant in the manner as stated above. Hence this appeal. 5. Shri Rajesh Choudhary, learned counsel for the accused- appellant has argued that the trial court has erred in law in convicting the accused on the basis of circumstantial evidence there being no direct evidence. The chain of circumstances against the appellant is not so complete as to rule out every single hypothesis that may be compatible with his innocence. The trial court failed to appreciate that there was no motive for the appellant to commit murder of Kajod Bairwa. The recovery of photograph from the shirt's pocket of deceased, sword and 'kulhari' at the instance of accused-appellant vide memo Ex.P34 is highly doubtful. Mohd. Israil (PW32), the attesting witness of recovery, who was the only independent witness, has not supported the recovery and was declared hostile. The other attesting witness i.e. Hansraj (PW29) is a police Constable and his testimony therefore cannot be relied. Mohd. Israil (PW32), the attesting witness of recovery, who was the only independent witness, has not supported the recovery and was declared hostile. The other attesting witness i.e. Hansraj (PW29) is a police Constable and his testimony therefore cannot be relied. Besides, recovery alone cannot form basis of conviction. 6. It is argued that the trial court believing on the prosecution case has built up an imaginary case against the appellant that since he was facing criminal trial in certain offences under the NDPS Act, he put his own photograph in the pocket of shirt of deceased and not only disfigured his face, but also dismembered his body so as to make it look like as if he (accused-appellant) himself has been murdered. Learned counsel submitted that it has not been established by cogent evidence that the dead body that was recovered in two parts from two different places was that of Kajod Bairwa. In absence thereof, the conviction of accused- appellant for alleged offences cannot be sustained. 7. Learned counsel submits that recovery of photograph of the appellant from pocket of the deceased vide Ex.P6 could be a case of co-incidence and that the trial court has erred in convicting the accused-appellant on the basis of surmises and conjectures. It is argued that the trial court has committed serious illegality in relying on the call details without certificate requisite under Section 65B(4) of the Evidence Act. 8. Learned counsel argued that there is no evidence on record that the accused-appellant has committed murder of deceased Kajod Bairwa only because he happens to belong to Scheduled Caste. The appellant in the absence of any such evidence could not have been convicted for offence u/s.3-2(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 9. Smt. Sonia Shandilya, learned Public Prosecutor for respondent-State in appeal no.212/2017 and for appellant in appeal no.1021/2016 has opposed the appeal no.212/2017 against conviction. She argued that the incriminating circumstances against the accused-appellant form a complete chain to point the finger of doubt against him and none else that he committed the murder of Kajod Bairwa. The location of the accused Kailash Nath on the basis of call details has also been proved around the place where the dead body was found. Besides, it was also proved that he was in contact with deceased. The location of the accused Kailash Nath on the basis of call details has also been proved around the place where the dead body was found. Besides, it was also proved that he was in contact with deceased. Since the appellant was facing trial in cases of NDPS Act, he with a view to save himself, murdered innocent Kajod Bairwa and disfigured his face and dismembered his body and placed his own photo in the pocket of deceased to show as if he (accused) himself has been murdered. The recovery of sword and ' kulhari' at his instance has also been linked with the crime as according to FSL report (Ex.P71), these weapons were found to contain the blood of 'AB' group, which was also the blood group of deceased. It is therefore prayed that the appeal no.212/2017 against conviction be dismissed. Diabolic and dastard manner in which an innocent person was murdered by the appellant to save himself from punishment in trial of appeals under the NDPS Act and then disfiguring the face and dismembering the body into several parts brings the present matter in the category of "rarest of the rear case" While allowing the appeal no.1021/2016, the accused- appellant be awarded the capital punishment. 10. We have given our thoughtful consideration to the rival submissions and perused the material on record. 11. As far as the argument that the dead body remained unidentified is concerned, the same is liable to be rejected because Geeta Bai (PW6), the real sister of Kajod, his brother-in- law Suraj Mal (PW7), nephew Dhanraj (PW8) and his neighbours Sawan (PW10), Ganesh (PW15), Deva (PW16), Babu Lal (PW17), Ramesh (PW20), Manoj (PW25), Ram Prasad (PW26) and Rajendra (PW27) have identified the dead body to be that of Kajod Bairwa. No serious contradictions has been found in the statement of these witnesses. Though Mohan Lal (PW14) and Jodhraj (PW18) have turned hostile, but there are large number of witnesses who have otherwise supported the case of the prosecution and they cannot be disbelieved. The fact, therefore, that the dead body was that of Kajod, in our opinion, has rightly been found proved by trial court. The passport size photograph of the appellant was found in the pocket of the deceased and it was seized vide Ex.P6. Two more photographs were recovered from the house of appellant at his instance vide memo Ex.P36. The fact, therefore, that the dead body was that of Kajod, in our opinion, has rightly been found proved by trial court. The passport size photograph of the appellant was found in the pocket of the deceased and it was seized vide Ex.P6. Two more photographs were recovered from the house of appellant at his instance vide memo Ex.P36. Those photographs matched with the photograph in the pocket of deceased Kajod Bairwa, thus proving that they were the photographs of the same time. The fact that accused was facing trial in cases for offence under Section 8/18 of the NDPS Act arising out of FIR no.44/2009 lodged with Police Station Pirawa, District Jhalawar and also another FIR No.36/2011 lodged with Police Station Bhalta, District Jhalawar is also proved as the aforesaid FIRs are on record as Ex.PlOO and 101 respectively. The standing warrant for arrest of accused-appellant at the relevant time was issued by the Court of Special Judge, NDPS Cases, Jhalawar, which is on record as Ex.P102. The production warrant for his appearance in the criminal trial arising out of FIR No.36/2011 is also on record and the notesheet/proceedings of the Court in Sessions Case No.28/2011 is also placed on record. Finally, accused-appellant was also convicted in sessions case no.27/09, which arose out of FIR No.44/2009 for offence u/s.8/18 of NDPS Act and sentenced to rigorous imprisonment of ten years. Significantly enough, the accused after the incident was eventually arrested vide memo Ex.P81 on 29 th July, 2012. In the arrest memo, it is clearly indicated that at the time of his arrest, toe of his thumb of left hand and finger near it, had a cut mark. With respect to these injuries, appellant was subjected to medical examination, the MLR of which was Ex.P68. According to the said MLR, appellant has sustained two incised wounds by sharp edged weapon, both were opined to be simple. Nonetheless, what is of relevance is that duration of these injuries was opined to be 10 to 14 days there before, which fact has been proved by Dr. Rajesh Vrandwani (PW43). When this circumstance was put to accused in his examination u/s.313 Cr.P.C., he failed to give any explanation. 12. Nonetheless, what is of relevance is that duration of these injuries was opined to be 10 to 14 days there before, which fact has been proved by Dr. Rajesh Vrandwani (PW43). When this circumstance was put to accused in his examination u/s.313 Cr.P.C., he failed to give any explanation. 12. Apart from this, this is also significant to note that the standing production warrant indicates that appellant at the relevant time avoiding the arrest as he was facing imminent apprehension of being convicted and sent to jail. He was produced in another trial by production warrant and eventually was convicted and sentenced to rigorous imprisonment of ten years vide judgement dated 13.8.2012 vide Ex.P103. The prosecution, therefore, has succeeded in proving the motive of the appellant in not only committing murder of Kajod Meena, but also disfiguring his face and dismembering his body. 13. Another incriminating significant circumstance against the appellant is the recovery of sword and 'kulhari' pursuant to information given by him u/s.27 of the Evidence Act (Ex.P86). The recovery memo of both sword and 'kulhari' was prepared as Ex.P34. He got these weapons recovered from his agriculture field where they were buried. The sword and ' kulhari' were sealed and put in packet A and B respectively. They were sent to FSL along with various other articles. Police also seized a 'gudari' (mattress) and slippers near the dead body, which was sealed and put in a packet marked as C1' vide Ex.P11. Police also sealed the blood stained shirt, two 'safis', two 'moriyan' of paijama, which was sealed and put in packet marked as 'D' vide memo Ex.P14. Paijama of the deceased was also seized vide memo Ex.P24 and put in a packet which was sealed and marked as 'E'. Blood smeared soil and sample soil were also sealed vide memo Ex.P4 and P5 respectively. All these articles were received and kept in malkhana in sealed condition, which is evident from the copy of the malkhana register (Ex.P29A). All these ten articles were sent to the FSL in sealed condition with Gajendra Singh (PW42), which produced the receipt of the deposit vide Ex.P65. The FSL report indicates that all these articles were received properly sealed which tallied with the seal impression forwarded. All these ten articles were sent to the FSL in sealed condition with Gajendra Singh (PW42), which produced the receipt of the deposit vide Ex.P65. The FSL report indicates that all these articles were received properly sealed which tallied with the seal impression forwarded. FSL report (Ex.P71) indicates that blood of 'AB' group was found on the shirt, two separate pieces of 'safis', moriyan of paijama of the deceased and sword and 'kulhari'. 14. Analysis of the evidence thus clearly shows that all the incriminating circumstances against the appellant when joined together, form the chain so complete as to pin point a finger of doubt against the appellant that it was the appellant and none else, who could have committed the murder of Kajod Bairwa. 15. Coming now to the appeal no.1021/2016 filed by State whereby it was prayed that the capital punishment be awarded to the appellant, we hardly find any justification for awarding such an extreme penalty. On the aspect of proportionality of sentence, in our considered view, the same has to be prescribed according to culpability of criminal conduct of the accused. The sentencing system has to operate in such a manner as may reflect collective conscience of the society and should be as stern as the facts of given case demand. In what kind of cases sentence of death should be awarded has been subject matter of discussion in various judicial pronouncements so much so the guidelines that were laid down by the Supreme Court in Bachan Singh Vs. State of Punjab - (1980) 2 SCC 684 , while upholding the validity of Section 302 of the IPC (which authorizes imposition of penalty of death sentence), while concurring with the view expressed by it in earlier judgment in Ediga Annamma Vs. State of Andhra Pradesh - (1974) 4 SCC 443 , are adhered to till date, which are that (i) extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime', (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, and (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 16. Those principles that were laid down by the Supreme Court in Bachan Singh's case, supra, were best summarized in Machhi Singh vs. State of Punjab, (1983) 3 SCC 470 . 17. The Supreme Court in Devender Pal Singh vs. State of NCT of Delhi, (2002) 5 SCC 234 , while detailing out the circumstances and the relevant principles on this aspect by revisiting Bachan Singh's case, supra, and Machhi Singh's case, supra, reiterated the same law. The Supreme Court in Machhi Singh's case, supra, while following its earlier dictum in Bachan Singh's case, supra, held that life imprisonment is the rule and death sentence is an exception, to which guidelines we have already made reference hereinabove. Apart from guidelines in Bachan Singhs case, referred to above, the Supreme Court in Machhi Singhs case, supra, in Para 33 and 34 additionally observed that in making a choice between the death penalty and that of life imprisonment, the court has also to take into consideration manner and motive of commission of murder. In our considered view, the present matter does not fall within the parameters of "rarest of the rare cases" as per the law propounded by the Supreme Court in Bachan Singh, supra. 18. We, therefore, find that the circumstances of this case are not such where the act of the accused can be said to be a case of such extreme culpability where the life imprisonment would be altogether inadequate punishment, having regard to the nature of those circumstances. 19. We, therefore, do not find any infirmity in the impugned judgement. Both the appeals are dismissed. 20. Office to place a copy of this judgement in connected appeal.