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2018 DIGILAW 619 (RAJ)

FATIA @ FATTA RAM v. STATE OF RAJASTHAN

2018-02-22

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT : Sangeet Lodha, J. This appeal is directed against judgment dated 20.08.08 passed by the Additional Session Judge, Bali, District Pali, in Session Case No. 17/06, whereby the accused appellant Fatia alias Fatta Ram has been convicted for offences under Sections 302, 392 & 460 IPC and sentenced as under : U/s. 302 IPC Life imprisonment and to pay a fine of Rs. 3,000/-; in default of payment of fine to further undergo three months rigorous imprisonment. U/s. 460 IPC Ten years rigorous imprisonment and to pay a fine of Rs. 3,000/-; in default of payment of fine to further undergo three months simple imprisonment. U/s. 392 IPC Ten years rigorous imprisonment and to pay a fine of Rs. 3,000/-; in default of payment of fine to further undergo three months rigorous imprisonment. All the sentences were ordered to run concurrently. 2. The prosecution story unfolded during the trial may be summarized thus : Smt. Harupi w/o Daulaji, aged 80 years, used to live alone in her house situated at Village Pratapgarh Jhupa, Sadari. Her sons Chuna, Rawat, Giga, Chaina and Kumpa live in Calcutta being engaged in job there. Smt. Harupi was last seen on 25.01.06 by Fatma w/o Ayub Khan (PW 13). On 27.01.06, on her house being found locked, her nephew Hakma Ram (PW 3) searched but she could be traced out. At about 10-11 AM on same day, Puna Ram s/o Chamnaji and Ratan s/o Bhikalal came and break open the door and on going inside saw that the neck of his aunt (Smt. Harupi) had been cut by sharp edged weapon and after killing, her silver ornaments i.e. Kadla and Mathh which she used to wear in legs and hand respectively, were stolen. Fatia, who was neighbour of Smt. Harupi, who had brought one lady 2-3 days back, was found missing since 26.01.06 around 4 PM. 3. Hakma Ram (PW 3) while narrating the incident occurred as aforesaid, submitted a written report (Ex.P/7) to SHO, Police Station, Sadari, who in his turn, on the basis of the said report, registered an FIR for offence under Section 460 IPC and investigation commenced. 4. After inquest proceedings, autopsy of the body of deceased Smt. Harupi was conducted by the Medical Board consisting of Medical Officers Dr. M.M. Jangid and Dr. Rajendra Punmia (PW 21). Necessary memos were drawn by the police. 4. After inquest proceedings, autopsy of the body of deceased Smt. Harupi was conducted by the Medical Board consisting of Medical Officers Dr. M.M. Jangid and Dr. Rajendra Punmia (PW 21). Necessary memos were drawn by the police. During the investigation, accused Khimi was arrested on 31.01.06. One pair of Silver Kadla was recovered from Shri Ramesh Soni (PW 10) at the instance of Smt. Khimi, the grand mother of accused Fatia. Accused Fatia and his wife Smt. Ratna were arrested at Srinagar on 03.02.06. Two railway tickets of journey from Jodhpur to Jammu Tawi issued on 27.01.06 were recovered from the pocket of Fatia. At the instance of Fatia, the weapon of offence Kunt, his blood stain clothes and Keys were recovered and at the instance of Ratna Silver Mathh was recovered. Ramesh Kumar (PW 10) produced the document executed by Fatia while selling pair of Kadla to him. The blood stained articles including pant and shirt of accused Fatia and weapon of offence Kunt were sent for examination to Forensic Science Laboratory, Jodhpur and FSL Report (Ex.P./37) was obtained. 5. After completion of investigation, the police filed the charge sheet against Fatia for offences under Sections 302, 392 & 460 IPC, against Smt. Ratna for offences under Sections 411, 414 IPC and against Khimi for offence under Section 414 IPC before the Judicial Magistrate (First), Desuri. The matter was committed to court of Additional Sessions Judge, Bali for trial. The trial Judge framed the charge against accused Fatia for offences under Sections 302, 392 & 460 IPC, against accused Smt. Ratna for offences under Sections 411 & 414 IPC and against accused Smt. Khimi for offence under Section 414 IPC. The accused persons denied the charges and claimed trial. 6. The prosecution in support of its case produced as many as 21 witnesses (PW 1 to PW 21) and produced documentary evidence Ex. P/1 to Ex.P/38. The accused were examined under Section 313 Cr.P.C. wherein they denied their involvement in commission of crime. In defence, the appellant did produce any witness, however, the statements of Smt. Fatma (PW 13) and Shri Ratanlal recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Ex.D2 & Ex.D3 respectively. 7. P/1 to Ex.P/38. The accused were examined under Section 313 Cr.P.C. wherein they denied their involvement in commission of crime. In defence, the appellant did produce any witness, however, the statements of Smt. Fatma (PW 13) and Shri Ratanlal recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Ex.D2 & Ex.D3 respectively. 7. The learned trial court after appreciation of the evidence on record and the submissions made on behalf of the parties convicted and sentenced the accused appellant as indicated above, however, accused Smt. Ratna and Smt. Khimi were acquitted of the charges. 8. Learned counsel for the appellant contended that in the instant case there was no eye witness and the appellant has been convicted by the learned trial Judge on the basis of the circumstantial evidence. Learned counsel submitted that from the appellant a sum of Rs. 550/-, two railway tickets of Jammu Tawi, blood stained clothes and one iron Kunt were recovered and on the basis of these recoveries, he has been convicted of the offences, whereas Hakma (PW 3) has stated that the clothes and Kunt were recovered by the police on the same day i.e. on 27.01.06 and thus, subsequent recovery of these articles shown at the instance of the accused is false and has no evidentiary value. The learned trial Judge has seriously erred in ignoring the said evidence by merely saying that Hakma (PW 3) is illiterate. It is submitted that the neighbours and independent witnesses were available but they were made motabir of recovery, which creates doubts about the recovery effected. The recovery of silver ornaments were made at the instance of Smt. Khimi and Smt. Ratna and thus, the accused appellant cannot be connected with the commission of crime on the basis of said recoveries. Learned counsel submitted that the lock was seized by the police and no attempt was made to ascertain whether the keys recovered were of the lock broken or not. Accordingly, learned counsel submitted that the circumstances on the basis of which inference of guilt of the appellant is drawn by the trial Judge, have been established by unimpeachable evidence beyond reasonable doubt and therefore, the conviction and sentence deserves to be set aside and the appellant is entitled to be acquitted of the charges. 9. Accordingly, learned counsel submitted that the circumstances on the basis of which inference of guilt of the appellant is drawn by the trial Judge, have been established by unimpeachable evidence beyond reasonable doubt and therefore, the conviction and sentence deserves to be set aside and the appellant is entitled to be acquitted of the charges. 9. Per contra, learned Public Prosecutor submitted that the chain of circumstances from which an inference of guilt is drawn by the learned trial Judge stand cogently and firmly established and are sufficient to draw a conclusion that within all human probabilities, the crime was committed by the appellant and none else. 10. We have heard the learned counsel for the appellant and the learned Public Prosecutor and also re-appreciated the evidence on record in its entirety and objectivity. 11. The Medical Board consisting of Dr. M.M. Jangid and Dr. Rajendra Punmia (PW 21) conducted autopsy over the dead body of the deceased Smt. Harupi. As per the post mortem report (Ex.P/38) and deposition of Dr. Rajendra Punmia (PW 21) following ante mortem injuries were found on the person of the deceased : (1) Incise wound 8 cm x 3 cm muscle deep (clotting of blood). (2) Incise wound 18 x 4 cm Bone deep on the neck (clotting of blood). The cause of death was opined to be shock due to external and internal haemorrhage's. Thus, looking at the nature of injuries and cause of death of Smt. Harupi, her death is concededly homicidal in nature. 12. Indisputably, the entire case of the prosecution is based on circumstantial evidence. It is settled law that for conviction on proof of circumstantial evidence, the following triad tests must be satisfied:- (i) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (ii) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (iii) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. (vide Mahmood v. State of U.P., AIR 1976 SC, 69). 13. (vide Mahmood v. State of U.P., AIR 1976 SC, 69). 13. In "Sharad Birdhichand Sarda v. State of Maharashtra", AIR 1984 SC 1622 , the Hon'ble Supreme Court laid down following five golden principles named as "panchsheel" of the proof of a case based on circumstantial evidence : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and '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 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 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. 14. In Ramreddy Rajshekhanna Reddy v. State of Andhra Pradesh, 2006(3) Supreme 175 , the Apex Court held as under:- "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence." 15. In Palvinder Kaur v. The State of Punjab, AIR 1952 SC 354 , the Hon'ble Apex Court held that where there is no direct evidence and the circumstantial evidence answers the questions, essential to the proof of the offence only vaguely and indefinitely and is incompatible with the theory of the innocence of the accused there is no evidence on which the accused can be found guilty. 16. In Sarwan Singh v. State of Punjab, AIR 1957 SC 637 , the Apex Court observed thus:- "12. 16. In Sarwan Singh v. State of Punjab, AIR 1957 SC 637 , the Apex Court observed thus:- "12. It is no doubt a matter of regret that a foul coldblooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but when 'may be true' and 'must be true' there is inevitable a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." 17. In Ashish Batham v. State of M.P., (2002) 7 SCC 317 , their Lordships of Supreme Court indicated that mere suspicion, however strong it may be, cannot take the place of legal proof. It was observed as under:- "Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicating or punishing an accused does arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, grater should be the standard of proof required. Court dealing with criminal case at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusion" to be arrived at one the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 18. Thus, in the aforesaid backdrop, we have to adjudge as to whether the circumstances on which the prosecution relies are established by clear and cogent evidence beyond the reasonable doubt and whether the cumulative effect of the circumstances said to be proved exclude every other hypothesis save the one that the appellant is guilty of the charge imputed. 19. Thus, in the aforesaid backdrop, we have to adjudge as to whether the circumstances on which the prosecution relies are established by clear and cogent evidence beyond the reasonable doubt and whether the cumulative effect of the circumstances said to be proved exclude every other hypothesis save the one that the appellant is guilty of the charge imputed. 19. As per deposition of Hakma (PW 3), deceased Smt. Harupi used to live alone in her house. The factum of deceased Smt. Harupi living alone is supported by deposition of Smt. Fatma (PW 13), who was neighbour of Smt. Harupi and used to visit her regularly as also by deposition of Chaina Ram (PW 11), the son of the deceased Harupi, who used to live at Calcutta, being in job there. 20. Hakma (PW 3) has deposed that the accused Fatia had picked up quarrel with the deceased Harupi a few days before the date of occurrence, which was revealed to him by the deceased Harupi and he had assured her to talk with Fatia. The factum of incident of quarrel was admittedly mentioned in the written report (Ex.P./7), but in the cross-examination Hakma (PW 3) has reiterated that the incident of quarrel had occurred 2-3 days before the incident of death of his aunt Smt. Harupi. 21. As per deposition of Hakma (PW 3), the house of deceased Smt. Harupi was found locked and therefore, search was made but she could be traced out. In these circumstances, on 27.01.06, the lock of the house of the deceased was break opened and on going inside, Hakma (PW 3) saw that neck of her aunt has been cut by some sharp edged weapon. He has stated in unequivocal terms that a Kadla and Mathh, which the deceased used to wear were found missing. The fact that the deceased used to wear the said silver ornaments stands confirmed by the deposition of Smt. Fatma (PW 13), who deposed that Harupi used to wear Kadla and Mathh regularly but when she saw her dead, the ornaments were missing. 22. The fact that the deceased used to wear the said silver ornaments stands confirmed by the deposition of Smt. Fatma (PW 13), who deposed that Harupi used to wear Kadla and Mathh regularly but when she saw her dead, the ornaments were missing. 22. The Kadla of the deceased were recovered at the instance of Smt. Khimi, the grand mother of accused Fatia from the possession of Ramesh Kumar (PW 10), who has deposed that on 26.01.06, around 2-3 PM Khimi, Fatia and wife of Fatia had visited his shop and Khimi proposed to sell the pair of Kadla, which at the relevant time, Smt. Ratna was wearing. The Kadlas were sold to Ramesh Kumar for consideration of Rs. 5,820/-, stating that they are selling the Kadla as they intend to go out for making idol. It is pertinent to note that while selling the Kadlas, accused Fatia executed a document (Ex.P./19), wherein while acknowledging the factum of sell of Kadlas as aforesaid, it is clearly mentioned that if the same is found to be stolen article, he will be responsible for the same. The accused appellant has disputed his signature on the said document and the same tallies with his admitted signature available on record. 23. The accused Fatia had actually moved from his village Pratapgarh Jhupa stands fortified from the fact that he along with his wife Smt. Ratna were arrested on 03.02.06 by the police at Srinagar and on search after the arrest, two railway tickets (Ex.P./17) showing their movement from Jodhpur to Jammu Tawi were recovered. 24. Further, at the instance of Smt. Ratna, the wife of accused Fatia, Silver Mathh was recovered vide Ex.P./5. The recovery effected stands established by deposition of witnesses Bhikalal (PW 9) and Kupa Ram (PW 11). Both the witnesses have stated that the recovery was made at the instance of Ratna by the police in their presence. 25. The recovered silver ornaments i.e. pair of Kadla and a Mathh were identified by the son of deceased Chaina Ram (PW 12) to be that of her mother Harupi vide proceedings for identification (Ex.P./22 & Ex.P./29) conducted by Judicial Magistrate (First), Bali on the request of SHO, Police Station, Sadari vide Ex.P./28. 26. 25. The recovered silver ornaments i.e. pair of Kadla and a Mathh were identified by the son of deceased Chaina Ram (PW 12) to be that of her mother Harupi vide proceedings for identification (Ex.P./22 & Ex.P./29) conducted by Judicial Magistrate (First), Bali on the request of SHO, Police Station, Sadari vide Ex.P./28. 26. At the instance of accused Fatia, the weapon of offence blood stained Kunt, his own blood stained clothes and keys were recovered from his own house while opening the lock by key recovered from Smt. Ratna vide Ex.P./20. The recovery of said articles also stand fortified by deposition of Bhikalal (PW 9). 27. The contention of learned counsel for the appellant that as per deposition of Hakma (PW 3), the clothes of the deceased, the clothes of the accused as also the weapon of offence Kunt were recovered on the same day and thus, the recovery of the said articles at the instance of the accused subsequently is concocted and false, is also devoid of any merit inasmuch as Hakma (PW 3) was the person in whose presence the recovery were made at the instance of the accused. As noticed above, the recovery of the articles at the instance of accused Fatia and Smt. Ratna stands fortified by deposition of witnesses of recovery Bhikalal (PW 9) and Kupa Ram (PW 11). Moreover, the recovery of the cloth of the deceased were made on 27.01.06 whereas recovery at the instance of the accused Fatia and Smt. Ratna was made on 04.02.06 while opening the lock of his house by key recovered from Ratna at the time of her arrest on 03.02.06. Further, no question whatsoever were asked by the defence to investigating officer Bheru Singh (PW 19) in regard to the said recoveries. Thus, we do find any good reason to doubt the genuineness of the recoveries made at the instance of the accused persons as suggested by the counsel appearing on behalf of the appellant. 28. The articles recovered inter alia the blood stained clothes of accused Fatia, the blood stained Kunt were sent for the examination to the Forensic Science Laboratory, Jodhpur vide Ex.P./24, which were deposited with the FSL, Jodhpur vide Ex.P./25. 28. The articles recovered inter alia the blood stained clothes of accused Fatia, the blood stained Kunt were sent for the examination to the Forensic Science Laboratory, Jodhpur vide Ex.P./24, which were deposited with the FSL, Jodhpur vide Ex.P./25. As per the FSL Report (Ex.P./37) inter alia the weapon of offence i.e. Kunt and the pant of the accused were found to be stained with 'B' group blood i.e. the blood group of the deceased. 29. Thus, the chain of circumstances noticed here-in-above, stand established on the basis of cogent evidence on record, which are of conclusive nature and tendency and indicate towards the guilt of the accused appellant beyond reasonable doubt. 30. It is true that the lock broken was not seized and no attempt was made to ascertain whether the keys recovered were that of broken lock or not but this infirmity crept in, is in no manner fatal to the prosecution case and on that account, the conclusion arrived at regarding the guilt of the accused on the basis of the circumstances established by unimpeachable evidence is not affected in any manner whatsoever. 31. For the aforementioned reasons, the appeal fails, it is hereby dismissed.