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2018 DIGILAW 1637 (RAJ)

Kalu Ram v. State of Rajasthan

2018-08-03

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT Virendra Kumar Mathur, J. This criminal appeal under Section 374(2) Cr.P.C. was filed against the judgment and order dated 7.11.2008 passed by learned Additional Sessions Judge (Fast Track) No. 3, Hanumangarh in Sessions Case No. 64/2008 (18/2008) pertaining to the FIR No. 381/2007 of Police Station Tibbi, District Hanumangarh whereby appellant Kaluram has been convicted and sentenced for the offences as under:- 1. Under Section 302 IPC Life imprisonment with a fine of Rs. 2000/- and in default of payment of fine, further to undergo six months simple imprisonment; 2. Under Section 201 IPC Seven years rigorous imprisonment with a fine of Rs. 1000/- and in default of payment of fine, further to undergo three months simple imprisonment; and 3. Under Section 397 IPC Seven years rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 12.12.2007 at about 10:00 AM complainant viz. Ramchandra @ Dholu lodged a report at Police Station Tibbi, District Hanumangarh to the effect that son of his brother viz. Manpal @ Sonu was doing agricultural work over the land of one Roopram and accused appellant Kaluram doing the labour work in the field of one Maniram Jat and residing in his village. It was stated that on 10.12.2007 Manpal alongwith his mother went to the field and the mother of Manpal came back at about 04:00 PM but Manpal did not come back. On this, the mother of Manpal searched here and there but of no avail. It is further stated that today morning he alongwith others reached at the kotha situated in the filed of Maniram for searching Manpal where they found the blood stained on the wall, on which they searched nearby area of kotha and found the dead body of Manpal. It was suspected that the accused appellant killed Manpal as he was living in the said kotha. 3. On this, the FIR came to be registered bearing No. 381/2007 and investigation commenced. After investigation police filed charge sheet for the offences punishable under Sections 302, 201 and 397 IPC before the competent court from where the case is committed for trial before the Sessions Court, Hanumangarh wherefrom to the court of Additional Sessions Judge (Fast Track) No.3, Hanumangarh. 4. Learned trial court framed charges for the offences punishable under Sections 302, 201 and 397 IPC. 4. Learned trial court framed charges for the offences punishable under Sections 302, 201 and 397 IPC. Accused appellant pleaded not guilty and claimed trial. During trial prosecution examined as many as 13 witnesses and produced documents. Thereafter the statement of accused was recorded under Section 313 Cr.P.C. No witness was examined in defence. 5. After hearing counsel for the parties the learned trial court passed the impugned judgment and order dated 7.11.2008 and convicted the accused and sentenced him as aforesaid. Being aggrieved by the judgment of conviction and order of sentence dated 7.11.2008 the appellant preferred this appeal on following amongst other grounds. 6. It is contended by learned counsel for the appellant that there is long delay in lodging the FIR and no such explanation has been given by the complainant. The appellant has been falsely implicated only on the basis of circumstantial evidence. The prosecution has not proved the motive of the alleged crime. Thus, the finding of the learned trial court is liable to be quashed. It was also contended that there is no material evidence available on record to show that the appellant lived in the said kotha simply because the police has not collected any material from the appellant or from the said kotha, thus, it cannot be said that the appellant lived nearby the area from where the dead body was found. In this regard, it is submitted that the prosecution has not examined Maniram in whose field the said kotha is situated. In absence of that the whole prosecution story comes under suspicion. It was also contended that there is no last seen evidence of the appellant and the police has not conducted the identification parade and in absence of that it cannot be said that the appellant has committed the offence as alleged, but the learned court below merely on the basis of circumstantial evidence convicted and sentenced the appellant, whereas the prosecution has not proved the motive of the alleged crime. It is also contended that the police has not collected the footprint marks from the spot and from the recovered articles and also not collected the blood stains found on the pipe of the alleged kotha. It is submitted that the appellant has falsely been convicted only on the basis of suspicion which is not sustainable in the eye of law. It is submitted that the appellant has falsely been convicted only on the basis of suspicion which is not sustainable in the eye of law. Counsel for the appellant also argued that the version of the FIR has not been corroborated from the postmortem report. PW10 has clearly stated that the injury was found on the body of the deceased in between 50-60 hours of the incident, but the trial court merely relied upon the circumstantial evidence as well as the statement under Section 27 of the Evidence Act. It was also argued that in the present case the recovery has been made from an open place from which it reveals that the recovered articles has been planted at the spot simply because there is no material evidence to show that the appellant lives nearby the area from where the dead body was found. It was also argued that in the present case the complainant has not stated anywhere in the FIR regarding recovery of radio and mobile, but during the course of trial the prosecution witnesses have stated regarding these articles, whereas the said articles were recovered in presence of some witnesses and they have been examined as witnesses of identification before the trial court, which is not permissible in the eye of law. Thus, the whole prosecution story comes under suspicion. 7. On the other hand, learned Public Prosecutor vehemently opposed the contentions raised by counsel for the appellant and contended that the prosecution has successfully proved beyond reasonable doubt that accused Kaluram committed murder of Manpal @ Sonu and concealed his body below the sandheap behind the kotha with motive to commit decoit. It is submitted that from the evidence placed on record enmity between deceased Manpal and Kaluram is proved and from the recoveries made involvement of accused in the commission of crime is proved. Radio and mobile were recovered at the instance of Kaluram. These recoveries were identified as the articles belonging to deceased. The kassi was also recovered at the instance of the accused from the place where murder of Manpal @ Sonu was committed and that place was found to be in possession of Kaluram. All the incriminating circumstances are proved beyond reasonable doubt. 8. Heard learned counsel for the appellant as well as learned Public Prosecutor and scanned the evidence placed on record. 9. All the incriminating circumstances are proved beyond reasonable doubt. 8. Heard learned counsel for the appellant as well as learned Public Prosecutor and scanned the evidence placed on record. 9. After lodging of the FIR, investigation was done and postmortem was conducted. 10. Pw-10 Dr. Munish Singhal in his statement stated that on 12.12.2007 he was posted as Medical Officer at Public Health Center, Tibbi. At the request of Station House Officer of Police Station Tibbi he performed postmortem of deceased Manpal @ Sonu. In his examination in chief he has stated that the lacerated injury on the right eye and eye socket was cut. The nasal bone was fractured. Right mandibular joint, right maxillary bone was cut. Right lover ear lobe was cut. First cut was passing through right eye, right cheek, right ear and nose area. Second cut was on the upper head area passing transversely, size 7 cm x cm x bone cut. Middle part of right and left parietal bone was fractured. Brain tissues were damaged. The cause of death as disclosed in the postmortem report was multiple lacerated injuries with loss of blood and sharp injury of head causing damage to brain. On postmortem report at 'A' to 'B' place his signature was put and 'C' to 'D' was his opinion. This witness further stated that on the same day he also examined injuries suffered by accused Kaluram which are as under:- 1. Swelling 6 cm x 5 cm on right hand (dorsal side). Injury was found to be simple by blunt weapon. 2. Abrasion 3 cm x cm x cm on left foot thumb (lateral side). Injury was found to be simple by blunt weapon. 11. In cross examination PW-10 Dr. Munish Singhal stated that it cannot be denied that duration of death ranges from 48 to 72 hours. The fix time cannot be disclosed. He further stated that it is true that the lacerated wound on right eye and eye socket is caused by blunt weapon. Similarly, injury No.2 fracture of nasal bone and right mandibular joint may be caused by sharp weapon. He further stated that it is true that in my opinion I have given two possible reasons of death (1) oozing of blood from lacerated wound, and (2) injury by sharp weapon on head due to which tissues of head were damaged. 12. Similarly, injury No.2 fracture of nasal bone and right mandibular joint may be caused by sharp weapon. He further stated that it is true that in my opinion I have given two possible reasons of death (1) oozing of blood from lacerated wound, and (2) injury by sharp weapon on head due to which tissues of head were damaged. 12. From the evidence placed on record and on perusal of postmortem report it is undoubtedly homicidal case. 13. Admittedly there is no eye witness in this case. The whole prosecution story rests on circumstantial evidence. 14. In State of Rajasthan v. Rajaram, (2003) LawSuit(SC) 746, it has been observed as under:- [9] It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Hukam Singh v. State of Rajasthan, (1977) AIR SC 1063 Eradu and others v. State of Hyderabad, (1956) AIR SC 316 Earabhadrappa v. State of Karnataka, (1983) AIR SC 446 State of U.P. v. Sukhbasi and others, (1985) AIR SC 1224 Balwinder Singh v. State of Punjab, (1987) AIR SC 350 Ashok Kumar Chatterjee v. State of M.P, (1989) AIR SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, (1954) AIR SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. [10] In C. Chenga Reddy and others v. State of A.P, (1996) 10 SCC 193 , Apex Court observed as under : "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.". [11] In Padala Veera Reddy v. State of A.P. and others, (1990) AIR SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [12] In State of U.P. v. Ashok Kumar Srivastava, (1992) CriLJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. [13] Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." [14] There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. [15] In Hanumant Govind Nargundkar v. State of Madhya Pradesh, (1952) AIR SC 343, it was observed thus : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." [16] A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) AIR SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 15. The case at hand has to be looked into in the background of the aforesaid principles. 16. In this case one incriminating circumstance is that the accused was living alone at the place of incident. The case at hand has to be looked into in the background of the aforesaid principles. 16. In this case one incriminating circumstance is that the accused was living alone at the place of incident. Blood stains were found on the walls of kotha where he was residing and body of deceased was found behind the kotha hidden under the heap of sand and the other incriminating circumstances are the recoveries of mobile and radio from accused Kaluram at the instance of Kaluram vide recovery memo Ex.P/5 and recovery of blood stained kassi and one pair of nylon chappal vide recovery memo Ex.P/6 and also the recoveries made by Ex.P/7. 17. Pw-11 Kamla Devi, who is mother of deceased Manpal @ Sonu, in her examination in chief stated that seven months ago his son went to field. She also went there and took his meal and at about 04:00 PM they prepared tea and after taking tea she came back but his son did not come and said that he will come later on. Her son said that he is going to naka but he did not return to home in the night. In the morning when she again went to field she did not find her son Sonu. On this, she searched here and there and asked her husband's younger and elder brothers. They all started searching. On 12th the body of Sonu was found which was lying in the field of Maniram on the back side of kotha near kund. She further stated that when she left Sonu in the fields he was having one mobile, radio, Rs. 2000/- and a silver pendent around the neck. This witness admitted her thumb impression on the identification memo Ex.P/18. 18. Pw-3 Sandeep Kumar in his statement stated that Kaluram Nayak was residing in his field. Kaluram and Sonu used to go at the places of each other being the neighbours in the field. This witness further stated that Atmaram, Amar Singh and Ramchandra came to him in the morning at 06:00 of 12.12.2007 and took him to the fields. There he saw that inside the wall of kotha there are blood stains. When they went to the back side of kotha then they found the body of Sonu lying hidden under the sand (bajri). The police was informed and he further stated that Kaluram was not found there. There he saw that inside the wall of kotha there are blood stains. When they went to the back side of kotha then they found the body of Sonu lying hidden under the sand (bajri). The police was informed and he further stated that Kaluram was not found there. Kaluram absconded himself. This witness further stated that Sonu and Kaluram used to go each other place and Kaluram is habitual drunkard and, therefore, this is the reason they were not having good relations. In the cross examination this witness stated that Kaluram is a labourer in his field and he was working since 20-25 days and Kaluram during labour work used to prepare his food and tea in the kotha and the work of fields was given on contract basis to Kaluram. This witness further stated that when they reached kotha then they have seen blood stains on pipes and walls of kotha. This witness further stated that Kaluram identified the place and memo in this respect was prepared by police Ex.P/4. Mobile and radio were recovered at the instance of Kaluram and memo was prepared as Ex.P/5. This witness further stated about preparation of recovery memos Ex.P/6 and Ex.P/7 before him. 19. Pw-5 Atmaram, PW-8 Ramchandra @ Dholu and PW-9 Amar Singh also stated about search made by them for Sonu and thereafter recovery of body behind Maniram's kotha. There they have seen blood stains on the walls of kotha. These witnesses also stated about preparation of naksha mauka Ex.P/10 and panchnama Ex.P/14. PW-4 Indraj also stated about preparation of Ex.P/10. PW-8 Ramchandra stated about recovery of blood stained soil and preparation of memos Ex.P/11 and Ex.P/12. 20. From perusal of the statements of PW-3 Sandeep Kumar, PW-5 Atmaram, PW-8 Ramchandra and PW-9 Amar Singh it reveals that when they reached at kotha situated in the fields of Maniram in search of Sonu they found blood stains on the pipes lying in the kotha and the walls of kotha. On seeing the blood stains they thought that there is suspicion of mishappening and when they went back side of kotha near kund, blood stains were also found on the soil. When soil was removed the body of Sonu was found. 21. Pw-12 Arvind Bishnoi, the Investigating Officer of this case, stated that on 12.12.2007 when he received the information, FIR Ex.P/29 was registered and Ex.P/10 and Ex.P/10-A were prepared. When soil was removed the body of Sonu was found. 21. Pw-12 Arvind Bishnoi, the Investigating Officer of this case, stated that on 12.12.2007 when he received the information, FIR Ex.P/29 was registered and Ex.P/10 and Ex.P/10-A were prepared. Blood stained soil was recovered vide Ex.P/11 and Ex.P/13 & Ex.P/14 were prepared. During investigation the clothes which the deceased was wearing were recovered and a memo Ex.P/16 was prepared. This witness further stated that Kaluram on his information recovered blood stained kassi, one pair of chappal, radio and nokia mobile which were kept hidden under the plastic pipes lying in the kotha. The information of recovery is Ex.P/38. Similarly, Kaluram gave the information Ex.P/39 regarding blood stained bed, rajai, which were recovered and the memo Ex.P/6 was prepared. The recovered articles were sent to the Forensic Science Laboratory. 22. From the evidence placed on record, it is proved beyond doubt that Kaluram was residing in the kotha and PW-3 Indraj and PW-5 Sandeep Kumar stated that Kaluram was absconding from that place. From the evidence placed on record it is also clear that son of Maniram admitted that Kaluram was working as a labour in the field. The other witnesses have also corroborated these statements. From the statements of the witnesses and Ex.P/10 and Ex.P/10-A it is proved beyond doubt that at the kotha blood stains were found on the plastic pipes and walls of kotha and it is also proved that the police recovered blood stained soil and prepared Ex.P/11 and Ex.P/12. 23. The other incriminating circumstances were shown to the recoveries made at the instance of accused under Section 27 of the Evidence Act which is Ex.P/38 and the recoveries of mobile vide Ex.P/5 and blood stained kassi and one pair of nylon chappal vide Ex.P/6. 24. In this connection PW-4 Indraj, PW-8 Ramchandra and PW-3 Sandeep Kumar gave positive evidence and the Investigating Officer also in his statement stated about information about Ex.P/39 and the recovery memo Ex.P/7. These recovered articles were kept in malkhana and thereafter sent to the Forensic Science Laboratory. Although the place of recovery was an open place when the naksha mauka was prepared on 12.12.2007, at that time blood was found on the plastic pipes. The witness has specifically stated that the pipes were lying there and blood was found. These recovered articles were kept in malkhana and thereafter sent to the Forensic Science Laboratory. Although the place of recovery was an open place when the naksha mauka was prepared on 12.12.2007, at that time blood was found on the plastic pipes. The witness has specifically stated that the pipes were lying there and blood was found. The blood was also found on the walls and the recovery was made at the instance of accused under Section 27 of the Evidence Act. The articles were lying under the plastic pipes. From the circumstances, it cannot be said that the recoveries were planted. The accused had knowledge of recovered articles lying under the pipes. 25. Pw-1 Prakash Chandra in his statement stated a forwarding letter was prepared for depositing malkhana in the Forensic Science Laboratory. PW-13 Layak Singh obtained the forwarding letter and deposited malkhana. In this connection Ex.P/2 and Ex.P/3 and copy of roznamcha Ex.P/44 and Ex.P/45, Ex.P/43 and Ex.P/46 were placed on record. The Forensic Science Laboratory report was placed on record which is Ex.P/46 and according to that on the blood stained soil, shirt and sweater human blood was found. Out of these blood stains the soil, shirt, sweater, kassi and sodhiya 'A' group of human blood was found. The kassi which was used as a weapon of offence, human blood of 'A' group was found and the articles which were recovered from the minor sodhiya, the human blood of 'A' group was found. 26. From the evidence placed on record, it is found that the murder was committed at the same place. Investigating Officer PW-12 Arvind Bishnoi stated about recovery of mobile and radio and PW-6 A.H. Gauri stated about identification of the recovered articles. According to the identification memo Ex.P/18 Kamla has rightly identified radio. However, the mobile could not be identified by her because she was illiterate. 27. In a criminal case, the standard of proof required is truth beyond reasonable doubts yet there is no absolute standard of 'reasonable doubt'. A reasonable doubt is fair, based on reasons and must grow out of evidence in the case. The concept of probability cannot be expressed with mathematical precision as it involves subjective elements and it rests on common sense [State of Madhya Pradesh v. Dharkole alias Govind Singh & Ors, (2004) 13 SCC 308 ]. A reasonable doubt is fair, based on reasons and must grow out of evidence in the case. The concept of probability cannot be expressed with mathematical precision as it involves subjective elements and it rests on common sense [State of Madhya Pradesh v. Dharkole alias Govind Singh & Ors, (2004) 13 SCC 308 ]. A judicial evaluation of totality of evidence and not isolated scrutiny is necessary. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not a fetish [Inder Singh & Anr. v. The State (Delhi Admn.), (1978) CriLJ 766]. 28. After analysing the facts and circumstances of the present case it is found that the prosecution has been able to successfully proved beyond doubt the guilt of the accused. The circumstances are fully established that it is the only accused who has committed the murder of deceased Manpal @ Sonu. There is no merit in the appeal. In the result, the appeal stands dismissed.