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2019 DIGILAW 1225 (RAJ)

Mega v. State of Rajasthan

2019-04-24

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present jail appeal was listed on 21/03/2013 and Shri Firoz Khan was appointed as an Amicus Curiae to assist the Court on behalf of the accused-appellant. The said appeal was admitted by this Court on 23/07/2013. 2. Shri Firoz Khan was not present on 11/01/2019 and 23/01/2019, therefore, Shri Vikram Choudhary was appointed as an Amicus Curiae to assist the Court on behalf of the accusedappellant. The jail appeal aforesaid has been preferred by the accusedappellant Mega against the judgment dated 05/11/2012 passed by learned Additional Sessions Judge No.3, Udaipur Camp Salumbar in Sessions Case No.12/2011, whereby the accused-appellant was convicted under Sections 302 & 201 IPC and sentenced as under :- Offences Sentences Fine Fine Default sentences 302 IPC Life Imprisonment 2,000/- 2 months S.I. 201 IPC Two and half year S.I. 1,000/- 1 month S.I. All the sentences were ordered to run concurrently. 3. The prosecution story as unfolded from a written report (Ex.P.1) filed by Smt. Ganga Devi (PW.1) to the Station House Officer, Police Station Rishabhdev, District Udaipur on 17/10/2010 is that the complainant is the wife of Dinesh Pargi, resident of Parai Phala Benaya having her parental house at Delwas. Her parents have died. She was brought up by her grand father Naku. Her marriage was organized and solemnized by her grand-father (Naku) who was having no other successor. Therefore, she used to visit him frequently. Her grand father Naku used to stay with his younger brother Mega (appellant) in a small house in their agricultural field. They used to get the food from the house of Dhanna S/o. Mega. When she went to meet her grand-father after Raksha Bandhan, she did find him at his house & returned to her matrimonial house. Thereafter, on the Gabari(Gangaur) festival, she brought Laddus(Sweets) for her grand father, but she again did not find him at home. Thereupon, she enquired from the appellant about the whereabouts of Naku who informed her that he had gone to meet his relatives. Her grand father never used to stay for such a long time with his relatives. Therefore, she started making enquiries for her grand father from the relatives. A search was also made. When nothing was found, she called the villagers on 05/10/2010 and informed them about her grand father Naku having gone missing. Her grand father never used to stay for such a long time with his relatives. Therefore, she started making enquiries for her grand father from the relatives. A search was also made. When nothing was found, she called the villagers on 05/10/2010 and informed them about her grand father Naku having gone missing. The villagers gathered on Navratri Festival and asked Mega for whereabouts of Naku who confessed in front of the Villagers that he had murdered Naku before Raksha Bandhan. She alleged in the written report that her grand father Naku had been murdered by his younger brother Mega who had concealed the dead-body. 4. On this written complaint, an FIR No. 502/2010 (Ex.P.2) was registered by the SHO, Police Station Rishabhdev, District Udaipur on 17/10/2010. The investigation was commenced and the police interrogated the appellant, who informed the police about the place of incident by giving the information under Section 27 of the Indian Evidence Act (Ex.P.20) on 18/10/2010 and also that he had murdered his brother Naku and the dead body has been disposed of by putting the same in the fishing net and drowned the same in the Delwas pond (Ex.P.18 dated 17/10/2010). On this information, the dead body was recovered by the police on 17/10/2010 (Ex.P.3). The appellant was arrested on 17/10/2010 vide arrest memo (Ex.P.9). 5. After completion of investigation, police filed a charge-sheet against the accused-appellant for the offence under Sections 302 & 201 IPC. 6. Learned Trial Court framed, read over and explained the charge for the offence under Sections 302 & 201 I.P.C to the accused-appellant who denied the charge and sought trial. 7. During the trial, the prosecution produced 13 witnesses apart from 20 documents to prove their case. 8. The accused-appellant was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that due to enmity, he had been falsely implicated in this case. 9. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 05/11/2012. Hence this appeal. 10. We have heard learned Amicus Curiae appearing on behalf of the accused-appellant and the learned Public Prosecutor. 9. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 05/11/2012. Hence this appeal. 10. We have heard learned Amicus Curiae appearing on behalf of the accused-appellant and the learned Public Prosecutor. Shri Vikram Choudhary learned Amicus Curiae appearing for the accused-appellant has vehemently and fervently argued that there is no evidence against the appellant for convicting him in the case and merely, on the flimsy evidence, the learned trial Court has convicted the appellant vide judgment dated 05/11/2012. 11. He argues that it is a case of circumstantial evidence and since only the unidentified human skeleton has been recovered, it can not be presumed with any degree of certainty that the skeleton was of Naku, more particularly, when no DNA test was conducted in the present case. The chain of circumstances in the case is not so complete which indicates without any doubt that it was none other than the appellant who had murdered his elder brother Naku. There is neither any motive nor any reason forthcoming for the murder of his own brother Naku. 12. On the strength of the submissions made above, learned counsel appearing for the appellant has prayed that the present appeal may be allowed and the appellant may be acquitted of the charges levelled against him by setting aside the judgment dated 05/11/2012 passed by learned trial Court. 13. Per contra, learned public prosecutor while supporting the impugned judgment has vehemently submitted that there is ample evidence on record which clearly establishes the fact of involvement of the present appellant in the case. The prosecution had been able to prove beyond all reasonable doubt that it was none other than the appellant who was involved in the murder of his elder brother Naku. The prosecution has established the complete & unbroken chain of circumstances which indicates that it was none other than the appellant who had murdered his brother Naku. He further contends that the extra-judicial confession made by the appellant before PW.1 Smt. Ganga Devi, PW.2 Hanja Ram, PW.3 Dhanji & PW.4 Savji clearly establishes the fact that Naku slapped Mega and, who got annoyed with Naku and murdered him. He further contends that the extra-judicial confession made by the appellant before PW.1 Smt. Ganga Devi, PW.2 Hanja Ram, PW.3 Dhanji & PW.4 Savji clearly establishes the fact that Naku slapped Mega and, who got annoyed with Naku and murdered him. Further, the recovery of the skeleton of the deceased Naku on the information divulged by the appellant under Section 27 of the Evidence Act indicating the place of incident and the place where the dead body was disposed of was only within the knowledge of the appellant and on his information, the recovery of same establishes the fact that he murdered his brother Naku. This also corroborates the extra judicial confession made by him before PW.1 Smt. Ganga Devi, PW.2 Hanja Ram, PW.3 Dhanji & PW.4 Savji. 14. It is also argued that although the DNA test of the skeleton was not conducted yet PW.13 Dr. Manish Kumar Sharma has stated in his evidence that examination of the bones shows that the deceased was a male human being between the age of 55-65 years, which shows that it was also a corroborative piece of evidence showing the fact that the dead body was of Naku only. 15. On the strength of these arguments, learned public prosecutor submits that the prosecution has proved the charges levelled against the accused-appellant beyond all manner of doubt and, therefore, learned trial Court was perfectly justified in convicting the appellant for the offences alleged vide judgment dated 05/11/2012. 16. We have considered the submissions made at bar and have minutely sifted through the record of the case as well as the impugned judgment dated 05/11/2012 rendered by the trial Court. 17. Pw.1 Smt. Ganga Devi being grand-daughter of the deceased Naku stated that since the deceased was having no other member in the family and was residing with his younger brother Mega, she used to visit him frequently. When she could not meet Naku on two occasions i.e. Raksha Bandhan and Ganwar, she searched for him. When Mega was asked for whereabouts of Naku in presence of villagers, he confessed that he had murdered Naku and dumped his body. The accused-appellant Mega told them that after killing Naku, he put the dead body in the fishing net and dumped the same in the pond. On this extra-judicial confession made by Mega before the villagers, a report was lodged. The accused-appellant Mega told them that after killing Naku, he put the dead body in the fishing net and dumped the same in the pond. On this extra-judicial confession made by Mega before the villagers, a report was lodged. Police investigated the matter and recovered the dead body. She affixed her signatures on the memos prepared by the police. She has narrated the sequence of events affirming the allegations set out in the written report. Nothing significant was elicited during the crossexamination of this witness so as to doubt the credibility or veracity of the deposition made by her in the examination-in-chief. 18. Pw.2 Hanja Ram stated that when the villagers gathered in the Mataji Temple then in presence of all the villagers, the appellant Mega confessed the fact of having murdered his brother in front of Panchas (people of the village). 19. Pw.3 Dhanji stated that the appellant Mega confessed the fact of killing his brother in presence of all the villagers. 20. Pw.4 Savji has also supported the fact of extra judicial confession having been made by the appellant. 21. Pw.10 Kirendra Singh is the Police Officer who investigated the matter. During the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law. 22. Pw.13 Dr. Manish Kumar Sharma who conducted the autopsy of the human skeleton stated that the skeleton is of a human being. The skeleton appears to be of a male person between the age of 55-65 years. 23. The accused was arrested vide Arrest memo (Ex.P.9) dated 17/10/2010. Ex.P.19 is the postmortem report wherein the cause of death could not be ascertained. 24. The detailed scrutiny of evidence discussed hereinabove establishes that:- (1). Naku was the elder brother of Mega & was staying in the same house with Mega; (2). On two visits made by PW.1 Smt. Ganga Devi, she could not meet her grand-father Naku; (3). On being asked for whereabouts of Naku, Mega gave evasive replies that he had gone to visit his relatives; (4). Despite the fact that Naku was not seen or was not present or went missing from the shared house; Mega did not take any steps for knowing the whereabouts of his brother Naku; (5). On being asked for whereabouts of Naku, Mega gave evasive replies that he had gone to visit his relatives; (4). Despite the fact that Naku was not seen or was not present or went missing from the shared house; Mega did not take any steps for knowing the whereabouts of his brother Naku; (5). The extra-judicial confession made by Mega in front of the villagers that he had murdered his brother Naku and disposed off his body by wrapping it in a fishing net and dumping the same in the Delwas pond; (6). The information given by Mega under Section 27 of the Evidence Act was with respect to the place of incident and disposal of the body. In furtherance of the said information, the recovery of the dead body was effected from the Delwas Pond; & (7). The statement of PW.13 Dr. Manish Kumar Sharma that the skeleton was of a male human being of 55-65 years of age. (8). The place from where the dead body was recovered i.e. Delwas pond is just adjacent to the house of appellant and deceased. 25. The above stated facts clearly prove in chronology that the appellant being annoyed with his brother on having been slapped by him, murdered him and after putting the dead body in the fishing net dumped it in the Delwas pond. On the information being supplied by the appellant under Section 27 of the Evidence Act, the skeleton was recovered. This clearly shows that it was none other than the appellant who had murdered his brother. The conduct of the appellant also indicates the fact that despite Naku being not available or present in their house for a number of days, no efforts/steps were taken for tracing/knowing the whereabouts of his elder brother and at the same time, on being asked by PW.1 Smt. Ganga Devi, a very evasive reply was given hiding the truth in the matter by the appellant. Besides, we note that the extra judicial confession made before the Panchayat of the village gets complete corroboration from the recovery of skeleton on the information given by the accused-appellant under Section 27 of the Evidence Act and the medical evidence fortifying the fact that the skeleton was of a male human being between the age of 55- 65 years. 26. 26. In our view, the chain of circumstances in the present case is so complete which indicates that it was the appellant alone and none else who had committed the murder of his brother, and, therefore, learned trial Court was perfectly justified in convicting the appellant for the offence alleged in the present case. 27. In the wake of the above discussion, we do not find any merit in the present criminal appeal and the same is, accordingly, dismissed. The judgment dated 05/11/2012 passed by trial Court is upheld. The record of the trial court be returned forthwith.