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2018 DIGILAW 2005 (RAJ)

Munna Singh v. State of Rajasthan

2018-09-29

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Nirmaljit Kaur, J. D.B. Criminal Appeal No.134/2011 has been preferred by the accused appellants Munna Singh and Pradeep Kumar against the order and judgment dated 30.10.2010 passed by the Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.158/2008 vide which the appellants were convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 20,000/- each and in default of payment of fine to further undergo one year's Imprisonment. Similarly they were convicted for the offence under Section 364 IPC and sentenced for life imprisonment with a fine of Rs. 10,000/- each and in default of payment of fine to further undergo one year's Imprisonment. Both the sentences were ordered to run concurrently. 2. Db Criminal Appeal No.828/2014 has been preferred by the accused appellant Ravindra Yadav against the order and judgment dated 17.11.2014 passed by Additional District & Sessions Judge No.4, Jodhpur Metropolitan in Sessions Case No.132/2012 vide which the appellant was convicted and sentenced for life imprisonment under Section 364 and 302/34 IPC with a fine of Rs. 2,000/- on each count and in default of payment of fine to further undergo one month's Rigorous Imprisonment for each offence. Both the sentences were ordered to run concurrently. Both the appeals shall stand decided by this common order as the FIR is common. 3. As per the prosecution story, Smt. Babita made a statement before the police on 14.08.2008 stating therein that she had performed love marriage with one Pradeep Rao. Her father, her family members as well as the family members of Pradeep Rao were unhappy with this love marriage. Hence, both she and Pradeep left the village to find a job elsewhere. Her brother Munna, who used to work in a factory in Jodhpur, called her up and her husband that they should come to Jodhpur and he would get a job for Pradeep in the company and that he would also get a room on rent for them. Accordingly, she and her husband both came to Jodhpur on 25.07.2008 and started staying with her brother Munna in his room. Her husband had still not found any job, when on 11.08.2008, one person with the name of Ravindra along with another person came to their room. At that point of time, her brother Munna was not at home. Ravindra told her that her father had sent him. Her husband had still not found any job, when on 11.08.2008, one person with the name of Ravindra along with another person came to their room. At that point of time, her brother Munna was not at home. Ravindra told her that her father had sent him. On which, she told him that Munna had gone for work. Thereafter, he had a cup of tea and left. On the evening of 12.08.2008, Munna came back home after work but went out again. However, he came back after a short while and said that he and Pradeep were being called by Ravindra and his friend and said that they would return after meeting them. Thereafter, at about 11:00/11:30, seeing Munna come back alone to the room. She asked him about the whereabouts of Pradeep, on which, Munna said that Pradeep had found a job and had a night duty to do, hence he will come back by 08:00 or 08:30 am. When he did not come back in the morning, she asked Munna again. 4. However, Munna said that she should wait as only one day had passed since he has gone to work. On 13.08.2008, when Pradeep did not come back even by the night of 13.08.2008 and nor by the morning of 14.08.2008, she questioned her brother and tried to search for him but she could not find him. She went on to state that since her parents and her family members were not happy with the love marriage, it is possible that Munna, Ravindra etc. had kidnapped her husband and killed him. She further stated that Ravindra used to visit her brother Munna off and on and that is how she knew him. 5. An FIR was accordingly registered on the basis of her statement made on 14.08.2008 on the same day i.e. on 14.08.2008 at about 08:05 a.m. Challan was filed against Munna Singh, Pradeep Kumar and Ravindra Yadav under Section 302 and 364 IPC. Charges were also framed under Section 302 and 364 IPC against all the accused. Munna Singh was arrested on 14.08.2008 vide Ex.P/2 and Pradeep Kumar was arrested on 20.08.2008 vide Ex.P/23. However, Ravindra Yadav absconded. 6. Accordingly, the trial commenced qua the accused Munna Singh and Pradeep Kumar. As many as 13 witnesses were examined by the prosecution and documents from Ex.P/1 to Ex.P/50 were produced as evidence. Munna Singh was arrested on 14.08.2008 vide Ex.P/2 and Pradeep Kumar was arrested on 20.08.2008 vide Ex.P/23. However, Ravindra Yadav absconded. 6. Accordingly, the trial commenced qua the accused Munna Singh and Pradeep Kumar. As many as 13 witnesses were examined by the prosecution and documents from Ex.P/1 to Ex.P/50 were produced as evidence. After the conclusion of the trial, accused Munna Singh and Pradeep Kumar were convicted and sentenced as under : Accused appellants Munna Singh & Pradeep Kumar For the offence under Section 302 IPC Sentence for Life Imprisonment with a fine of Rs. 20,000/- each and in default of payment of fine further to undergo one year R.I. For the offence under Section 364 IPC Sentence for Life Imprisonment with a fine of Rs. 10,000/- each and in default of payment of fine further to undergo one year R.I. Both the sentences were ordered run concurrently. Both the sentences were ordered run concurrently. 7. Babita is the wife of deceased Pradeep Rao. She appeared as PW-2. The FIR was registered on the basis of statement made by her. She is thus the witness of last seen. She corroborated her statement made before the police. 8. Shri Rajveer Singh, the Investigating Officer appeared as PW-13 and verified that as per the disclosure made by Munna under Section 27 of the Evidence Act Munna along with Ravindra and Pradeep Kumar, the friend of Ravindra Singh had together murdered Pradeep Rao on 12.08.2008 while taking him near the wall of the back side of the power house, near the railway line where there was thick growth of grass and bushes by cutting of his head from his body and they left after leaving his body there itself. His body was lying on the same place. He entered this information in Ex.P/39. In pursuance to the said information under Section 27, the body was recovered vide Recovery Memo Ex.P/13. A chappal belonging to the deceased was also recovered vide Ex.P/16. In pursuance to the statement under Section 27, the clothes of the accused were got recovered vide Ex.P/41. 9. Similarly, in pursuance to the statement under Section 27 (Ex.P/40), the knife was also recovered vide Ex.P/22. The recovery witnesses of the clothes were PW-1 Hemsingh and Mahaveer Singh. However, Mahaveer Singh was not examined. Similarly, the recovery witnesses of knife were PW-5 Pabudan Singh and Manohar Singh. 9. Similarly, in pursuance to the statement under Section 27 (Ex.P/40), the knife was also recovered vide Ex.P/22. The recovery witnesses of the clothes were PW-1 Hemsingh and Mahaveer Singh. However, Mahaveer Singh was not examined. Similarly, the recovery witnesses of knife were PW-5 Pabudan Singh and Manohar Singh. The clothes and the blood stained knife were sent for the FSL. As per the FSL report (Ex.P/47), the blood was found to be of human origin and were stained with AB Group. The Blood Group of the stains on the exhibits of the deceased could not be determined with the Blood Group found on the clothes of the accused and remained inconclusive. 10. While praying for acquittal and setting aside the order and judgment dated 30.10.2010, learned counsel for the appellants Munna Singh and Pradeep Kumar, firstly, submitted that the FIR was registered on 14.08.2008 but the same was not sent to the Magistrate in compliance of Section 156 of the Cr.P.C. Munna Singh was produced before the Magistrate on 15.08.2008 by Shri Hemsingh, ASI but for the reasons best known, the FIR was sent as late as on 18.08.2008. Secondly, Badanram, father of the deceased appeared as PW-3 and stated that he saw the complainant Babita and Munna Singh on 13.08.2008 at the Police Station. Dr. P.C. Vyas (PW-6) stated the time of the death was between 3 to 5 days prior to the date of the postmortem which was conducted on 17.08.2008 and coupled with the fact that PW-4 Heera Ram who is recovery witness of the body (Ex.P/13) stated in his cross-examination that the said body was recovered on 10.08.2008 shows that the deceased had already been killed prior to 12.08.2008 and therefore, the statement of Babita that he went missing on 12.08.2008 is totally incorrect and the appellants have been falsely enroped. Thirdly, as per the statement of PW-4 Heera Ram, a sharp edged weapon Tabar as well as the chappal were lying near the body but the police only recovered the Chappal and did not recover the Tabar. Fourth, the clothes were recovered vide Ex.P/3 and marked as "F". The witnesses of the recovery are PW-1 Hemsingh, ASI as well as Manohar Singh but Manohar Singh was not examined and as per the FSL Report, they have not been able to match the blood with the blood of the deceased. Fourth, the clothes were recovered vide Ex.P/3 and marked as "F". The witnesses of the recovery are PW-1 Hemsingh, ASI as well as Manohar Singh but Manohar Singh was not examined and as per the FSL Report, they have not been able to match the blood with the blood of the deceased. In the absence of the same, the said offence cannot be connected with appellant Munna. Moreover, the independent witness Manohar Singh was not examined for the reasons best known. Fifth, the injuries were found on Munna. They have not been explained. 11. They were a result of the beating by the police, hence the statement of Munna under Section 27 was taken under duress. Thus, the said recoveries cannot be read against him. Sixth, no site plan of the recovery was prepared. Hence, the said recovery cannot be believed. Seventh, there was no independent witness for the recovery as required under Section 103 Cr.P.C. Lastly, it was argued that the FSL Report was not even put to the Exhibit under Section 313 Cr.P.C. Thus, the prosecution could not prove the offence against the appellants beyond doubt. 12. Ravindra Yadav - the second accused-appellant was arrested on 04.09.2011 vide Ex. P/2. After the trial, Ravindra Yadav was convicted vide order and judgment dated 17.11.2014. 13. Mr. Mahesh Bora, learned Sr. Advocate for accused appellant while arguing for Ravindra Yadav, the accused-appellant in D.B. Criminal Appeal No.828/2014 submitted that the case rests only on the circumstantial evidence. There is no circumstance which goes against the accused appellant Ravindra except the statement of complainant Babita that Ravindra and his friend Pradeep came to the house with Munna and thereafter all the 4 persons including accused appellant Ravindra left the house. As per her statement under Section 164 Cr.P.C and in the FIR, it was categorically stated that Munna told her that Ravindra and his friend were standing outside the house and thereafter Munna left the house along with her husband, meaning thereby that whatever was stated by her in the Court is an improvement. In her earlier statement before the police and in the FIR, she has been informed about the presence of Ravindra outside the house by Munna. 14. Thus, She herself has not seen Ravindra. Even in her statement before the Court, she submitted that she had not seen Ravindra ever before. There is no recovery from him. In her earlier statement before the police and in the FIR, she has been informed about the presence of Ravindra outside the house by Munna. 14. Thus, She herself has not seen Ravindra. Even in her statement before the Court, she submitted that she had not seen Ravindra ever before. There is no recovery from him. It cannot be said that he was absconding because there was nothing to show that any effort was made by the police to arrest him. Hence, the same cannot be read against him. 15. Learned counsel for the parties were heard at length and the statements and the evidence was perused with the help of the learned counsels. 16. Babita is the wife of the deceased. The accused Munna is her brother. The FIR was registered on the basis of her statement Ex.P/9. Her statement was also recorded under Section 164 Cr.P.C vide Ex.P/17. Thereafter, she appeared as PW-2 and corroborated the entire prosecution story and verified the fact that she had identified the body lying in the bushes near the power house on 14.08.2008. Even the defence could not break her in the crossexamination. Munna was arrested on 14.08.2008. The information provided by Munna under Section 27 is placed on record as Ex.P/13. It was in pursuance to the said information provided under Section 27, that Munna got recovered the body of the deceased vide Ex.P/13. The recovery witnesses are PW-4 Heera Ram and Manohar Singh. No doubt, Manohar Singh was not examined but Heera Ram has verified in the examination in chief about the recovery of the body from the place in question i.e. from the bushes next to the power house and the railway line. Heavy reliance was placed by the learned counsel for the accused appellant Munna Singh that Heera Ram had turned hostile and in his cross-examination, Heera Ram had stated that the body was recovered on 10.08.2008 and that the prosecution did not recover the 'Tabar' which was lying near the body and only the Chappal was recovered, to contend that the deceased died before 12.08.2008 is the day on which Pradeep Rao, husband of Babita allegedly went missing and the weapon of the offence recovered from accused Munna is planted as the actual weapon of the offence 'Tabar' was left on the place and not recovered. 17. The said argument deserves to be rejected. 17. The said argument deserves to be rejected. PW-4 Heera Ram was examined on 08.05.2009. In the examination in chief, Heera Ram verified that the body was recovered from the said place in his presence. Thereafter, the cross-examination was deferred on the request of the counsel for the accused Munna. Hence, the question of declaring Heera Ram hostile at that stage did not arise. The cross-examination finally took place as late as on 27.10.2009 i.e. almost after 5 months giving enough time to the side of the accused to win over Heera Ram. This time, Heera Ram came and stated that the said body was recovered on 10.08.2008. This is factually incorrect on the face of it. The fact that the body was found on 14.08.2008 and not on 10.08.2008 is evident from the following facts : (a) The Ex.P/13 is the Recovery Memo of the dead body. It clearly mentions the date as 14.08.2008. It is duly signed by Heera Ram, Babita, Mohan as well as Munna Singh. (b) In case, the body was recovered on 10.08.2008, the Recovery Memo should have been of the same day as a body already found on 10.08.2008 cannot be left unattended till 14.08.2008 at the same place. (c) The second witness of the Recovery Memo, Mohan while appearing as PW-11 verified that the said recovery was made in his presence and that he had duly signed the Recovery Memo. (d) The postmortem report Ex.P/24 is dated 17.08.2008. As per Dr. P.C. Vyas who appeared as PW-6, the death seemed to have occurred 3 to 5 days ago which establishes the death between 13.08.2008 to 14.08.2008 and not on 10.08.2008 as suggested. Learned counsel for the appellant probably mistook the date of bringing the body to the hospital on 14.08.2008 as the date of the postmortem, whereas the postmortem was conducted on 17.08.2008. 18. Accused Munna also got recovered his T-shirt and Pant in pursuance to the information provided under Section 27. Similarly, in pursuance to the information under Section 27 (Ex.P/40), the knife was got recovered vide Ex.P/22. The recovery witness of the knife are Pabudan Singh and Manohar Singh. Pabudan Singh appeared as PW-5 and verified the said recovery of knife which was recovered from the bushes near the railway line between two stones. Similarly, in pursuance to the information under Section 27 (Ex.P/40), the knife was got recovered vide Ex.P/22. The recovery witness of the knife are Pabudan Singh and Manohar Singh. Pabudan Singh appeared as PW-5 and verified the said recovery of knife which was recovered from the bushes near the railway line between two stones. Manohar Singh may not have been examined but PW-5 Pabudan Singh being an independent witness is sufficient to prove the said recovery. As discussed above, the clothes and the knife were sent for FSL and as per the FSL Report, the blood was found to be of human origin and stained with AB Group. The argument of the learned counsel for the accused that the blood group found on the clothes of the accused with the deceased remained inconclusive does not wash off the other clinching evidence discussed above. Thus, establishing the entire chain of events. 19. The arguments of the learned counsel for the accused that there were injuries on the body of the accused Munna, he was beaten up by the police and therefore, the statements under Section 27 of the Evidence Act were taken under duress is also without substance. The injuries have been well explained. As per the injury report (Ex.P/25), the following injuries were found on the accused : S. NO. SIZE OF EACH INJURY IN INCHES, LENGTH, WIDTH AND DEPTH PART OF THE BODY ON WHICH INJURY CAUSED SIMPLE OR GRIEVOUS/KIND OF WEAPON 1 Multiple linear abrasions of length 7 cm to 2 cm with brownish scab, an dorsum of Lt arm and forearm at places Simple-Blunt 2 Multiple linear abrasions of length 4.5 cm to 2 cm with brownish Scab, on Dorsum of Rt elbow, Rt. Forearm and Rt. Side forehead Simple-Blunt 3 Multiple abraded Bruises of size 13 x 1.5 cm to 4 x 1 cm brownish in colour on back of chest laviabaly in middle & Rt. Side. Simple-Blunt 4. Multiple linear abrasions of length 6 cm. to 1.5 cm,Simple/Blunt with brownish scab, on back of chest and abdomen at places Simple-Blunt 5. Multiple abrasions of size 3 x 1 cm to 1 x cm on both knee antedate ralby with brown scab Simple/Blunt Simple-Blunt 20. A perusal of the injuries show that they are only abrasions. The place of incident has thick growth of thorny bushes. to 1.5 cm,Simple/Blunt with brownish scab, on back of chest and abdomen at places Simple-Blunt 5. Multiple abrasions of size 3 x 1 cm to 1 x cm on both knee antedate ralby with brown scab Simple/Blunt Simple-Blunt 20. A perusal of the injuries show that they are only abrasions. The place of incident has thick growth of thorny bushes. Even as per the statement of PW-4 Heera Ram upon whom the defence relied submitted that the bushes were of Babool plant which are thorny. Thus, the said injuries received by Munna at the time of the incident is highly probable. In fact, the injuries proves the prosecution story and the presence of Munna at the place of occurrence. Moreover, the injuries are all abrasions which cannot be on account of beatings. In any case, the fact remains that the information provided under Section 27 by accused Munna definitely led to the recovery of the body as well as the recovery of the knife. It is proved beyond doubt that the body was recovered at the behest of the accused Munna himself. Thus, the said recovery cannot be washed out even if for the sake of argument, it is accepted that the same was under duress. Even, the delay in sending the FIR to the Court is well explained. Body was recovered on 14.08.2008. 15, 16, 17th of August being holidays, it was sent on 18.08.2008. 21. In view of the evidence as discussed above, the prosecution has proved the case against accused Munna Singh beyond doubt. However, with respect to the accused appellant Pradeep Kumar and Ravindra Yadav, we find that except the statements of the accused Munna Singh and the complainant Babita, there is no other evidence to connect them with the crime. Munna Singh being accused, his statement alone cannot be read against the coaccused. No doubt, there is statement of Babita which the Court has believed qua Munna but the Court requires to shift the grain from the chaff. Even if the statement of Babita is read as it is, the same is not sufficient to convict them and connect with the crime without any other evidence to support the last seen evidence. Accused appellant Pradeep Kumar was arrested on 20.08.2008. The shirt was recovered in pursuance to the information provided by him under Section 27 in the presence of PW-1 Hemsingh and Mahaveer Singh. Accused appellant Pradeep Kumar was arrested on 20.08.2008. The shirt was recovered in pursuance to the information provided by him under Section 27 in the presence of PW-1 Hemsingh and Mahaveer Singh. However, Mahaveer Singh was not examined. PW-1 Hemsingh is a Police Officer. Similarly, accused Ravindra Yadav was arrested on 04.09.2011. The identification of the place of occurrence is of no use as the same stood already disclosed by Munna. No recovery was effected from him. There is also no motive qua the two accused Ravindra Yadav and Pradeep Kumar. In these circumstances, both the appellants Pradeep Kumar and Ravindra Yadav will have to be acquitted by granting them benefit of doubt. 22. Accordingly, the appeal (D.B. Criminal Appeal No.134/2011) filed by the accused appellant No.1- Munna Singh to the extent of his conviction and sentence is dismissed but the appeal qua appellant No.2 Pradeep Kumar is allowed and the order and judgment dated 30.10.2010 passed by the Additional Sessions Judge (Fast Track) No.1, Jodhpur convicting him under Section 302 and 364 IPC is set aside and he is acquitted having been granted the benefit of doubt. Thus, conviction and sentence of appellant Munna Singh is upheld and conviction and sentence of Pradeep Kumar is set aside. 23. Similarly, the appeal (D.B. Criminal Appeal No.828/2014) filed by the appellant Ravindra Yadav is allowed and the order and judgment dated 17.11.2014 passed by the Additional District & Sessions Judge No.4, Jodhpur Metropolitan convicting him under Section 364 and 302/34 IPC is set aside and he is acquitted having been granted the benefit of doubt.