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2018 DIGILAW 1436 (RAJ)

Narottam v. State of Rajasthan Through PP

2018-07-06

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. This appeal seeks to challenge the judgment of the Special Judge cum Additional Sessions Judge, Jaipur Metropolitan, Jaipur dated 12.03.2012 whereby and whereunder the accused-appellant Narottam was convicted for offence u/s.302 IPC and was sentenced to life imprisonment with fine of Rs. 2,000, in default of which, he was to further undergo simple imprisonment of six months. He was also convicted for offence u/s.364A for which he was sentenced to life imprisonment with fine of Rs. 1,000, in default of which he was to further undergo simple imprisonment of six months. Both sentences were ordered to run concurrently. 2. The brief facts giving rise to the filing of this appeal are that complainant Rakesh Roshan Thakur lodged a report with SHO, Police Station Malviya Nagar, Jaipur City on 23.02.2010 stating therein that one Mr. Abhilash Kumar Thakur was his real uncle's son who was studying B.Pharma in Second Year from Jaipur National University, Jaipur. The complainant further alleged that he received a phone call from the mother of Abhilash that she received a phone call at 8:00 AM on that day on her mobile informing that her son Abhilash Kumar Thakur has been kidnapped. The person who was speaking on the phone asked for Rs. 1,50,000/- as ransom money and also instructed the mother of deceased to deposit that amount in the bank account of her son Abhilash before 2:00 PM. He also warned the mother of Abhilash not to inform the police as well as the staff of the college. After this information, mother of Abhilash made a phone call to one Abhijeet and asked him to find out whereabouts of her son. Abhijeet informed Abhilash's mother that on Saturday at about 4.00 pm, he went with accused-appellant. After that on Monday he received a phone call from Abhilash that he was at Narottam's room. The deceased also informed Abhijeet about the fact that he was beaten by the accused appellant on his head with a bat and after informing this fact, the phone was disconnected. After having all these information, the complainant alongwith Abhijeet came to Seedling College, Jaipur. He alongwith the Warden went to the room of accused-appellant where dead body of Abhilash Kumar Thakur was found tied with ropes in the bathroom. 3. After having all these information, the complainant alongwith Abhijeet came to Seedling College, Jaipur. He alongwith the Warden went to the room of accused-appellant where dead body of Abhilash Kumar Thakur was found tied with ropes in the bathroom. 3. Upon the said information, FIR came to be lodged at Police Station 115/2010 for offence under Sections 364-A & 302 IPC. The police after registration of the FIR investigated into the matter and filed charge-sheet against the accused appellant for the offence under Sections 364-A & 302 IPC. The trial court framed charges for the said offences against the accused, who denied the same and claimed to be tried. The prosecution in support of its case produced 15 witnesses and exhibited 30 documents. Statement of accused-appellant under Section 313 Cr.P.C. was recorded wherein he claimed to be innocent and stated that he has been falsely implicated in this case. After hearing the arguments, the learned trial court vide judgment dated 12.3.12 convicted the accused-appellant as referred to above. Hence this appeal. 4. Ms.Meenu Verma, learned counsel for the accused-appellant has argued that the learned trial court failed to consider that while appreciating evidence in a criminal case, the court should keep in view three cardinal principles viz;(i) the guilt against the accused must be proved beyond reasonable doubt; (ii) the burden on the accused is not so heavy to prove the plea taken by him as it lays on the prosecution & (iii) the motive behind the crime should be specific and under the clear light of adjudication. It is contended that such burden can be discharged by accused merely by showing the preponderance of probability in favour of the plea taken by him. 5. It is contended that it is crystal clear from the statements of all the prime witnesses from PW1 to PW15 that there is no motive of accused-appellant to kill the deceased. Charges framed against the accused appellant by the learned trial court are not correct. Further there is material contradiction between the statements of Abhijeet (PW2), Meera Jha (PW9), mother of the deceased and the complainant Rakesh Roshan (PW4). Charges framed against the accused appellant by the learned trial court are not correct. Further there is material contradiction between the statements of Abhijeet (PW2), Meera Jha (PW9), mother of the deceased and the complainant Rakesh Roshan (PW4). Further according to the statements, Meera Jha, mother of the deceased, she was informed by Abhijeet that the deceased went with the accused-appellant and after getting this information, she stated that voice heard by her over the phone was of accused appellant Narottam, whom she had talked sometime ago when the deceased and accused-appellant were room partners. This allegation is not justified and basic defence for this is that during the trial, voice of the accused appellant was never identified by the mother of the deceased. No such attempt was made for such voice recognition so it clearly shows the ambiguity against the accused appellant in the impugned judgment. Even the investigating agency did not produce the call details of the mobile from which the call was made to the deceased's mother. Moreover, when deceased's friend Abhijeet was aware of the fact that deceased-Abhilash was hit by the accused, why did he not inform about this fact to the deceased's mother Meera Jha or to the police has not been explained. 6. It is contended that the reading of charge sheet itself make it clear that the accused-appellant himself took the police personnel and the college staff to his room, which shows that the accused was not hiding or concealing that he was aware of the dead body of the deceased lying in his room. There was no reason not to take the blood samples from the place from where the body was recovered. This clearly shows the negligence of the investigating agency as the charge for the alleged offences was framed against the accused- appellant only on the basis of other circumstantial evidences. 7. Ms. Meenu Verma, learned counsel for the accused-appellant has argued that the statement of Medical Jurist and the Medical Board does not prove the fact that the deceased was hit by a cricket bat. 7. Ms. Meenu Verma, learned counsel for the accused-appellant has argued that the statement of Medical Jurist and the Medical Board does not prove the fact that the deceased was hit by a cricket bat. It is further stated that as per evidence, cause of death could be because of excessive consumption of alcohol as the ethyl alcohol was found in the liver, spleen, kidney, heart and lungs of the deceased and these symptoms and these type of congested organs normally present in the case of excessive alcohol consumption. Moreover, the medical evidence available on the record is not at all corroborative to the statement deposed by so called eyewitness which renders the judgment of conviction in illegality and deserves gracious inference of this Court. 8. Learned counsel argued that Bharat Singh (DW1) has stated that the accused appellant was staying with him from 20.02.2010 till 23.02.2010. Therefore, the appellant cannot be held guilty for the alleged offence. Further no proper appreciation was been made by the learned trial court with regard to plea of alibi taken by the accused-appellant as well as defence witnesses produced by them in their defence. Learned counsel argued that the delay in recording the statement of the witnesses has not been considered in proper perspective, which further calls interference of this Court. Learned counsel further submitted that the appellant is a young boy of around 22 years old who is well educated, the conviction would lead to ruin his career. Moreover, the sentence so awarded by the learned court below is too excessive. 9. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the impugned judgment. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. The testimony of Gopal Sharma (PW1), Abhijeet (PW2), cousin of deceased Anil Yadav (PW3), Rakesh Roshan (PW4), cousin of the deceased, Hemant Gaur (PW6), Manoj Kumar Jha (PW7) and Meera Jha (PW9), mother of the deceased indicates that both the deceased Abhilash and accused-appellant Narottam are students of Jaipur National University, Jaipur. Narottam was senior to the deceased Abhilash in the university. While deceased was student of B.Pharma at the relevant time, accused-appellant was student of B.C.A. II Year. Accused appellant was at one point of time room mate with deceased Abhilash, Manoj Kumar Jha and Hemant Gaur. Narottam was senior to the deceased Abhilash in the university. While deceased was student of B.Pharma at the relevant time, accused-appellant was student of B.C.A. II Year. Accused appellant was at one point of time room mate with deceased Abhilash, Manoj Kumar Jha and Hemant Gaur. Then in the subsequent academic year, he started residing separately in a private accommodation. Even then, accused-appellant used to visit Abhilash in the hostel and the college. Accused-appellant had taken Abhilash to his room on 20.02.2010. Accused-appellant Narottam was resident of Haryana whereas deceased Abhilash came from Bihar. Both were good friends. 12. Abhijeet (PW2) has stated that he was also student of B.Tech III Year and Abhilash was his room mate in the hostel. He stated that Abhilash went to the room of Narottam saying that (this witness) he should inform the hostel administration about this fact. Later he received a telephonic call that he has sustained an injury. Sometimes thereafter Rakesh Roshan (PW4) informed him that someone has kidnapped Abhilash and demanded ransom and made a phone call to his mother that she should deposit a sum of Rs. 1,50,000 in the account of deceased. Then they enquired from Narottam saying that mother of Abhilash was making repeated phone calls that he (Narottam) should tell them where Abhilash has gone. They went to the room of Narottam along with police and found dead body of Abhilash in the bathroom of his room, which was tied with plastic ropes of blue colour. 13. Similar statement has been made by Anil Yadav (PW3), Warden and Sports Officer, Jaipur National University, Jaipur, who has stated that Abhijeet and Rakesh, who were cousins of Abhilash Thakur (deceased) came to him at 10 am on 23.2.2010 and told that someone has kidnapped Abhilash and made a phone call to his mother that a sum of Rs. 1,50,000 should be deposited in his (Abhilash's) account. They informed this fact to Shri Giriraj Lothwara, the Administrative Officer of the university, who asked him (this witness) that enquiry should be made as to the whereabouts of the missing boy. On enquiry from Abhijeet, it transpired that Abhilash had gone out of the hostel with Narottam. 1,50,000 should be deposited in his (Abhilash's) account. They informed this fact to Shri Giriraj Lothwara, the Administrative Officer of the university, who asked him (this witness) that enquiry should be made as to the whereabouts of the missing boy. On enquiry from Abhijeet, it transpired that Abhilash had gone out of the hostel with Narottam. When a telephonic call was made to Narottam, he told that Abhilash had left his room on the previous day, but Abhijeet told this witness that Abhilash on one day before telephoned him that accused Narottam had caused an injury on his head by cricket bat and that he has detained him in a room near Balaji Mod. On this, this witness Anil Yadav (PW3) further stated that he asked the administrative officer that information about this should be given to the police. When all three of them went to the room of Narottam, they found the dead body of Abhilash lying tied in ropes in his bathroom. Police also reached immediately thereafter. 14. Rakesh Roshan (PW4), Assistant Product Manager, Shree Ram Company was cousin of deceased Abhilash. He has also made similar statement. He has stated that he received a telephone call at about 8 am on 23.2.2010 from his uncle staying in Bihar that somebody has kidnapped Abhilash and was now demanding ransom of Rs. 1.5 lakhs. Thereupon, he made a telephone call to Abhijeet to enquire as to the whereabouts of Abhilash, thereupon Abhijeet told him that on a previous Saturday, he saw Abhilash with Narottam. This witness then asked Abhijeet to search for Abhilash and told him that he would soon arrive at Jaipur. This witness then further stated that he informed his aunt Meera Jha about this, who told him that she knew Narottam, who was a room mate of Abhilash and that she doubted Narottam because the voice in which telephone call was being made to her was that of Narottam. She recognised the voice of Narottam because earlier also she had on several occasions talked to Narottam on phone when he was room mate with Abhilash. This witness reached Jaipur around 10 am and met Abhijeet and with him they went to Anil Yadav and thereafter to the room of Narottam. Narottam was found outside the room. She recognised the voice of Narottam because earlier also she had on several occasions talked to Narottam on phone when he was room mate with Abhilash. This witness reached Jaipur around 10 am and met Abhijeet and with him they went to Anil Yadav and thereafter to the room of Narottam. Narottam was found outside the room. When they made enquiry about Abhilash, Narottam told that Abhilash left his room previous evening saying that he was going to his cousin Rakesh Roshan (this witness) at Dausa. When they asked Narottam to allow them to search his room, he resisted. However, when police reached there, they searched the room of Narottam and dead body of Abhilash was found tied with ropes in his bathroom. 15. Hemant Gaur (PW6) was also one of the room mates with deceased along with Narottam in the hostel the previous year. He too has stated that Narottam used to frequently visit Abhilash and that he had seen them together in the evening of 20.2.2010 and later he learnt on 23.2.2010 that Narottam has murdered Abhilash. Manoj Kumar Jha (PW7) has also stated that he along with deceased Abhilash and Hemant Gaur used to stay in the same room of the hostel. Narottam had taken Abhilash to his room in the evening of 20.2.2010 and thereafter it was learnt on 23.2.2010 that Narottam murdered Abhilash. All these witnesses were subjected to intense cross examination and have remained stood to the scrutiny thereof and did not divert. 16. Ghanshyam Gupta (PW8) accepted that he had given his room on the first floor of his Shop No.7, RIICO Shopping Centre, Malviya Nagar in December, 2009 to Narottam, nephew of Bharat Singh Choudhary on monthly rent of Rs. 2,700. The trial court has taken note of the fact that since Bharat Singh Choudhary (DW1) was having Shop No.8 and was neighbour of the shop of Ghanshyam Gupta (PW8), there was every possibility that Ghanshyam let out the room to Narottam at the askance of Bharat Choudhary. This was also not unnatural because Bharat Singh was his close relative. 17. Smt. Meera Jha (PW9), mother of deceased has stated that she had four daughters and one son i.e. deceased. He had come to Jaipur from Darbanga in the year 2009. The deceased had come to study in B. Pharma at Seedling College of Jaipur National University in the year 2008-09. 17. Smt. Meera Jha (PW9), mother of deceased has stated that she had four daughters and one son i.e. deceased. He had come to Jaipur from Darbanga in the year 2009. The deceased had come to study in B. Pharma at Seedling College of Jaipur National University in the year 2008-09. Narottam was his room partner in the hostel, the previous year. Many a times when she would make phone call to Abhilash and he would be in bathroom, Narottam used to pick the phone. Since she had on several occasions talked to Narottam on phone, she could recognise his voice even on phone. She received a phone call at 5.15 am on 23.2.2010 on landline saying that her son Abhilash has been kidnapped and that a sum of Rs. 1.5 lacs should be deposited in his account or else he would be murdered. She was sure that this phone call was made up by Narottam, who later disconnected the phone. After sometime, phone call was received saying that if this information was given to anyone in hostel, he would cut Abhilash in pieces and throw them in the jungle. Meera Bai then further stated that she immediately called his nephew Rakesh Roshan and asked him to go to Jaipur and find out Abhilash. Rakesh after sometime went to Jaipur and telephonically informed her between 12 noon and 2 pm that Abhilash has been murdered. 18. Deceased before he was put to death by asphyxia was subjected to beating and one of the injuries found on his head was caused by cricket bat. This bat was recovered at the instance of accused-appellant vide Ex.P12 from the roof of his room. In FSL report dated 30.7.2010, this bat was found to contain human blood. The inquest of the dead body (Ex.P2) also indicated injury on head of deceased. White colour electric rope was tied around his neck, which was covered by a cloth. The postmortem report (Ex.P11) has been proved by Dr. Ashok Kumar Jain (PW12) and Dr. Sudhir Goswami (PW5), who were members of the Medical Board conducting the postmortem. The postmortem report indicates that deceased sustained five injuries. He had a lacerated wound over apex of skull between both parietal bones in the size of 3 x 1 x cm in size. Ashok Kumar Jain (PW12) and Dr. Sudhir Goswami (PW5), who were members of the Medical Board conducting the postmortem. The postmortem report indicates that deceased sustained five injuries. He had a lacerated wound over apex of skull between both parietal bones in the size of 3 x 1 x cm in size. He also had ligature marks over face and neck viz., (1) two ligature mark of about 1 cm width present both from right and left angle of mouth one extending posteriorly and other posteroinferiorly encircling neck, (2) ligature grove over neck about 2 cm in width from just above thyroid prominance extending both side posteriorly below mandible angle encircling neck, (3) ligature groove at both forearm near wrist encircling whole limbs and (4) ligature mark at both legs in lower 1/3 region encircling whole limbs. All the injuries and the ligature marks were antemortem in nature. Though scalp injury was not found sufficient to cause death, but the cause of death was asphyxia due to compression of neck, which results in airway obstruction and death. The duration of the injuries of the deceased were opined to be 48 hours, which corresponds to the approximate time of deceased leaving the hostel with the appellant. The FSL report (Ex.D6) indicates that all the visceras gave positive tests for the presence of Ethyl Alcohol, which shows that accused invited deceased to his room and then made him to consume liquor and when he became unconscious, subjected him to beating. When his demand for ransom was not satisfied, accused put him to death with the use of ropes. 19. The site plan (Ex.P3) indicated that the room in question was located on the first floor of the shop no.7 of Ghanshyam Gupta (PW8) and the dead body of Narottam was found at place 'X', which was toilet/bathroom of the room. The photographs of the dead body which are available on record at Ex.P20 to P29 clearly indicated that the dead body of the deceased was lying in the bathroom/toilet. Electric wire was tied around the neck of deceased. Rope was also tied on the hands and legs of the deceased apparently thereby he was put to death. Three pieces of plastic ropes of yellow colour, one electric wire of mixed yellow and blue colour, one while towel and two pieces of clothes were recovered vide memo (Ex.P4). Electric wire was tied around the neck of deceased. Rope was also tied on the hands and legs of the deceased apparently thereby he was put to death. Three pieces of plastic ropes of yellow colour, one electric wire of mixed yellow and blue colour, one while towel and two pieces of clothes were recovered vide memo (Ex.P4). An open bottle (half) of a liquor of the brand 8 PM was seized from the room of the accused vide Ex.P5. The jeans pants, which the accused was wearing at the time of incident and ATM card of Punjab National Bank was found from the pocket of his pants, were seized at the instance of accused-appellant vide memo (Ex.P7) The clothes of the deceased were seized vide memo Ex.P8. 20. The analysis of the evidence aforesaid clearly indicate that various incriminating circumstances that emerges from the above discussion of evidence are : (1) that the accused was room mate with the deceased in the previous academic session; (2) that on many occasions he used to pick the call made by Meera Jha, mother of the accused-appellant when Abhilash would be in bathroom and, therefore, Meera Jha could recognise his voice that on 23.2.2010, a telephone call was received on the landline by Meera Jha and she identified the voice of the caller as that of Narottam; (3) that the deceased Abhilash was lastly seen alive with the accused going with him; (4) that on enquiry from Narottam as to whereabouts of deceased, he gave evasive reply and initially caused resistance for search of his room; (4) that on search of the room of Narottam by police in presence of many witnesses, the dead body of Abhilash was found in the bathroom of Narottam; (5) that a blood stained bat from which injury was caused to the deceased was recovered from the roof of room of Narottam at his instance; (6) that ATM card of the account of deceased with Punjab National Bank in which ransom was asked to be deposited by the accused was recovered from the possession of accused-appellant; (7) that many witnesses have stated that deceased in the evening of day before incident, caused injuries to him on his head; (8) that the visceras of the deceased was tested positive for the presence of alcohol showing that deceased was made to consume liquor by the accused; 21. All the aforementioned circumstances when join together form a complete chain so as to rule out every single hypothesis that may be compatible with the innocence of the accused-appellant and point towards his guilt that it was the accused and none else, who could have committed the murder of Abhilash. 22. In view of above discussion we do not find any infirmity in the impugned judgment. The appeal therefore fails and is hereby dismissed.