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2019 DIGILAW 1617 (RAJ)

Shailesh Patel v. State of Rajasthan

2019-05-22

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The accused appellant stands convicted and sentenced as below vide judgment dated 13.08.2015 passed by the learned Additional Sessions Judge No.1, Bhilwara Camp, Gangapur, District Bhilwara in Sessions Case No.54/2013: Offence Sentence Fine Fine Default sentence Section 302 IPC Life Imprisonment Rs.5,000/- 6 Months' Rigorous Imprisonment. Section 201 IPC 3 Years' R.I. Rs.1,000/ 3 Months' Rigorous Imprisonment. All the sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentence, the accused appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: 4. Shri Prakash Chandra Soni resident of Raipur Road, Gangapur submitted a written report (Ex.P/1) to the SHO Police Station Gangapur, District Bhilwara on 27.08.2013 at 11.55 pm. alleging inter alia that he was walking near the Ramrasora on the Gangapur- Raipur Road at about 10.30 pm. At that point of time, he saw Shri Shailesh Patel, who was working as a Compounder in the Government Hospital and was residing on rent in the premises of Gauri Shankar Sharma with his wife Jenifer and six months child Aarav, coming from towards his house with a bundle covered in a cloth placed on his motorcycle. On noticing the presence of Prakash Chand, Shri Shailesh panicked and ran away leaving behind the motorcycle. The bundle fell down. The informant checked the same and found that the dead body of Jenifer was tied up in the bed-sheet. Blood was effusing from the body and the bed-sheet was also stained with blood. Prakash Chand alleged that the road was well-lit and thus, he clearly identified Shailesh taking the dead body of his wife. He alleged that Mohanlal Sharma also saw this incident. On the basis of this report, a formal FIR No.232/2013 was registered at the Police Station Gangapur for the offence under Section 302 IPC and investigation was undertaken by Shri Gangaram, the SHO Police Station Gangapur. The dead body of Jenifer and a Hero Honda Splendor Plus motorcycle No.RJ-03-SE-5604 were recovered lying besides the road. The dead body was sent to the mortuary. Panchayatnama (Ex.P/3) was prepared on 28.08.2013. The motorcycle used by the accused for carrying the dead body was seized vide seizure memo (Ex.P/2) dated 28.08.2013. The accused appellant was apprehended on 28.08.2013 at 03.30 am., vide arrest memo (Ex.P/17). The dead body was sent to the mortuary. Panchayatnama (Ex.P/3) was prepared on 28.08.2013. The motorcycle used by the accused for carrying the dead body was seized vide seizure memo (Ex.P/2) dated 28.08.2013. The accused appellant was apprehended on 28.08.2013 at 03.30 am., vide arrest memo (Ex.P/17). While preparing the arrest memo, the I.O. noticed bleeding wound on both the hands of the accused. While arresting the accused, the clothes worn by him were found to be stained with blood and the same were seized vide seizure memo (Ex.P/18). It is stated that the accused gave voluntary information to the I.O. under Section 27 of the Evidence Act which was recorded in Memo (Ex.P/39) in which, he divulged that he had tied up the dead body of his 7 months old son Aarav in a gunny bag and had thrown the same in the naala beside the puliya on the Gangapur- Raipur Road. In furtherance of the information so provided by the accused, the dead body of Aarav was discovered and taken into possession vide recovery memo (Ex.P/6). The accused gave information to the I.O. regarding having concealed the knife used to commit the murder under the bed inside his room. The knife was seized vide seizure memo (Ex.P/9). The I.O. collected blood stained and control soil and pieces of stones, etc. from outside the house and from inside the room and the place from where the dead body of Smt. Jenifer was recovered. The Mobile Forensic Unit was summoned and the photography of the place of recovery and the dead body and motorcycle was got conducted. The Forensic Unit, collected the blood stains from the motorcycle in a cotton gauze. Both the dead bodies were subjected to postmortem. The statements of various witnesses were recorded and finally, a charge-sheet came to be filed against the accused appellant for the offences under Sections 302 and 201 IPC. The articles seized during investigation were forwarded to the FSL for comparison from where, FSL report (Ex.P/56) was received with an opinion that all the relevant things i.e. the Baniyan, Barmuda, T-shirt (of the accused), the knife used for committing the murder, the blood stained soil and concrete, the blood stained gauze pieces, the rope, the bed-sheet, the bra, the petticoat, the underwear, the gown (those of the deceased Smt. Jenifer) tested positive for the presence of 'B' Group blood. 5. 5. Since the offences were Sessions triable, the case was committed and transferred to the court of Additional Sessions Judge No.1, Bhilwara Camp, Gangapur, District Bhilwara for trial. The prosecution examined as many as 20 witnesses in support of its case. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence. He denied the same and claimed to be innocent. However, neither did the accused offer any explanation regarding the homicidal deaths of his wife and small child and nor did he lead any evidence in defence. 6. After hearing the arguments advanced by the prosecution and the defence counsel, and upon appreciating the material available on record, the learned Trial Judge proceeded to convict and sentence the accused appellant as above. Hence this appeal. 7. Shri Charan, learned counsel representing the appellant vehemently and fervently urged that there is no proof worth the name of the record of the case so as to affirm the conviction of the appellant as recorded by the trial court. The first informant Prakash Chandra did not support the prosecution case; he resiled from the first information report and was declared hostile. He urged that the entire procedure of securing the informations from the accused under Section 27 of the Evidence Act and effecting recoveries in furtherance thereof is tainted and unworthy of credence. He urged that as a matter of fact, some unknown assailant, killed the appellant's wife and child and dumped their dead bodies. The appellant had no motive whatsoever to murder them. He thus implored the Court to accept the appeal, set aside the impugned judgment and acquit the appellant from the charge. 8. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants counsel. He urged that the prosecution has proved the guilt of the accused by providing foolproof circumstantial evidence which is trustworthy and clinching. He contended that the fact regarding accused appellant residing on rent in the house of Shri Gauri Shankar (PW-2) has been well and truly established by Shri Gauri Shankar himself in his evidence. Blood stains were noticed on the floor of the room where the accused resided with his wife and small child. The accused did not take any such plea that he was not present in the room with the two deceased when the incident took place. Blood stains were noticed on the floor of the room where the accused resided with his wife and small child. The accused did not take any such plea that he was not present in the room with the two deceased when the incident took place. He offered no explanation as to how both Smt. Jenifer and Aarav were assaulted and killed inside the rented room and thus, as per the learned Public Prosecutor, the presumption of Section 106 of the Evidence Act operates to the hilt against the accused appellant. He further urged that the case does not have any adversarial undertones and thus, I.O. had absolutely no reason to fabricate the evidence in an evidence to prove the guilt of the accused appellant. He urged that the incriminating recoveries were made in the routine course of events without any prejudice in the approach of the I.O. The dead body of the child had been thrown in a water canal and thus, the I.O. could not have had an inkling regarding its whereabouts. This fact was exclusively in the knowledge of the accused who furnished the voluntary information under Section 27 of the Evidence Act and got the dead body recovered. The apparel of Smt. Jenifer and the blood stained articles (including the weapon of offence i.e. knife) recovered in furtherance of the information provided by the accused to the I.O. under Section 27 of the Evidence Act, all tested positive for presence of 'B' Group human blood. Thus, learned Public Prosecutor contended that the prosecution has led full-proof evidence to establish the complicity of the accused in the crime. As per him, simply because the first informant Prakash Chand resiled from his own statement that by itself would not adversely affect the prosecution case which is firmly proved even if the evidence of Prakash Chand is excluded from consideration. In addition thereto, the contention of Shri Bhati was that the admissible parts of testimony which can be discerned from the evidence of Prakash Chand, can be utilized despite he having been declared hostile. On these grounds, the learned Public Prosecutor urged that the trial court was absolutely justified while recording the guilt of the accused by the impugned judgment which is based on a thorough appreciation of evidence available on record and as per him, the same does not warrant any interference. 9. On these grounds, the learned Public Prosecutor urged that the trial court was absolutely justified while recording the guilt of the accused by the impugned judgment which is based on a thorough appreciation of evidence available on record and as per him, the same does not warrant any interference. 9. We have considered the submissions advanced at bar and have appreciated the evidence available on record threadbare. 10. Prakash Chandra (PW-1) being the lodger of the FIR (Ex.P/1) was declared hostile at the trial. However, he clearly stated that he saw the dead body of Jenifer and a person running away from behind. In cross-examination, the witness admitted that he submitted the report (Ex.P/1) to the police. The witness tried to wriggle out from his own written report by claiming that the report was partially wrong and that he could not see Shailesh clearly. The witness was confronted with his police statement (Ex.P/5) and admitted to have deposed the part 'A to B' thereof. The said part of the police statement of Prakash Chandra (Ex.P/5) is reproduced herein below for ready reference: 11. In cross-examination, the witness again wavered and stated that he did not state parts 'C' to 'D' and 'E' to 'F' of his statement to the police. However, when we consider the overall impact of the evidence of this witness, we are duly satisfied that the fact regarding the witness having given the FIR (Ex.P/1) voluntarily and regarding he having seen the accused on the fateful night carrying the dead body of Smt. Jenifer can very well be extracted from his deposition. 12. Pw-2 Gauri Shankar affirmatively proved that Shailesh, the accused herein, resided in his house on rent with his wife Jenifer and son Aarav. The police recovered a blood stained knife, the blood stained soil, etc. in his presence. In cross-examination, the witness stated that the police came after he had reached the place of incident. He was not present at the spot when the body of Aarav was brought. He did not see the knife in the room but at the police station. The police recovered a blood stained knife, the blood stained soil, etc. in his presence. In cross-examination, the witness stated that the police came after he had reached the place of incident. He was not present at the spot when the body of Aarav was brought. He did not see the knife in the room but at the police station. The witness attested the following seizure memos- Ex.P/6- Recovery of Dead body of Aarav, Ex.P/7- Recovery of the gunny bag in which the body was taken, Ex.P/8- The site inspection plan of the place from where the deadbody of Aarav was recovered, Ex.P/9- Recovery of knife, Ex.P/10- Recovery of blood stained soil and control soil, PW-11- Recovery memo of the blood stains from the room where the accused resided, Ex.P/12- The site plan of the house rented out to the accused, Ex.P/13- The site plan of the location outside the house. 13. Pw-3 Mahaveer Sharma also gave evidence almost on the same lines as stated by Gauri Shankar (PW-2). He was declared partially hostile because he did not support the factum of recovery of knife. 14. Pw-4 Suresh Chandra, PW-5 Saleem Mohammed and PW-7 Raju K.G. were formal witness regarding the Panchayatnamas of the dead bodies. 15. Pw-6 Sachindra Mohan and PW-10 Mohammed Hussain, who both were posted as constables at Police Station Gangapur, gave evidence regarding the arrest of the accused, the recoveries of his blood stained clothes, the collection of the blood stains from the motorcycle of the accused. Nothing significant was elicited in their cross-examination which can persuade us to question their evidentiary worth. 16. Pw-8 Bablu gave evidence to prove the recovery memo of the child's dead body. In cross-examination, the witness stated that he did not recover the dead body and the gunny bag and nor did he see the same. 17. Pw-9 Jitendra Singh was a motbir witness to the recovery of the motorcycle of the accused. No significant cross-examination was carried out from this witness. 18. Pw-11 Shambhulal was a formal witness regarding handing over of the dead bodies of the two deceased. 19. Pw-12 Ratan Devi did not support the prosecution case and was declared hostile. 20. Pw-13 Dr. Chhail Bihari and PW-14 Dr. Sandhya Nalwara were both posted as Medical Officers at the CHC Gangapur. 18. Pw-11 Shambhulal was a formal witness regarding handing over of the dead bodies of the two deceased. 19. Pw-12 Ratan Devi did not support the prosecution case and was declared hostile. 20. Pw-13 Dr. Chhail Bihari and PW-14 Dr. Sandhya Nalwara were both posted as Medical Officers at the CHC Gangapur. They both were the members of the Medical Board constituted at the CHC Gangapur which conducted postmortems on the body of Smt. Jenifer and Aarav and proved the postmortem reports of Jenifer (Ex.P/18) and Aarav (Ex.P/19). The doctors noted numerous incised wounds and rope impressions on the dead body of Smt. Jenifer. The cause of death of Jenifer was opined to be cutting of vessels of the neck leading to hemorrhage and shock. The cause of death of the child Arav was opined to be asphyxia by drowning. Nothing significant was elicited in the cross-examinations of both the witnesses. 21. Pw-15 Shri Kailash Chandra was posted as the Head Constable at the Police Station Gangapur. The various articles recovered during investigation were deposited with him in the Maalkhana. He gave evidence regarding safe-keeping of the articles and the transmission thereof to the FSL through Ghanshyam Singh Constable. No significant cross-examination was conducted from this witness. 22. Pw-16 Ghanshyam Singh deposed that he carried the packets of the articles from the Police Station Gangapur to the S.P. Office and then onwards to the FSL Udaipur where he deposited the same in the self same sealed condition. 23. Pw-17 Shri Gangaram was the investigating officer of the case. We have already narrated the details of the steps taken by the witness during investigation (infra) and thus, the same need not be repeated. In cross-examination, the witness admitted that he got only the blood group of the clothes of the deceased Jenifer analyzed. He expressed that during investigation, the evidence of motive which was collected was that the accused used to bear a suspicion on the deceased. Other than this, no significant cross-examination was carried out by the defence which can persuade the Court to discard the evidence of the I.O. 24. Having evaluated the entire evidence available on record, we are of the firm view that the prosecution, has proved the case as against the accused appellant by leading clinching and convincing evidence which invariably establishes his guilt beyond all manner of doubt. Having evaluated the entire evidence available on record, we are of the firm view that the prosecution, has proved the case as against the accused appellant by leading clinching and convincing evidence which invariably establishes his guilt beyond all manner of doubt. It is well and firmly established by the evidence led during trial that the accused used to reside in a rented premises with his wife and child i.e. Jenifer and Aarav the two deceased. On the fateful night i.e. 27.08.2013, Prakash Chandra (PW-1), saw the accused carrying the dead body of Jenifer tied up in a cloth. Prakash of-course tried to resile from his own FIR but we are convinced that he seems to have been won over by the defence. Despite that, the admissible parts of his evidence are sufficient to satisfy the Court that the motorcycle of the accused was used for carrying the dead body of Smt. Jenifer tied up with ropes and concealed in a bed-sheet. The time of this event was about 10.30 pm. Thus, the burden would definitely shift on the accused to explain as to how the dead body of his wife with numerous homicidal wounds was being transported on his own motorcycle. Even if, for a moment, the statement of Prakash Chandra is excluded from consideration to the extent he disowned his FIR, what can be deduced therefrom is that he definitely saw the deadbody of Smt. Jenifer bundled and tied up in a cloth falling from the motorcycle of the accused. That apart, the accused was apprehended on the very night intervening the incident and at the time of his arrest, his clothes were stained with blood. He gave a voluntary information to the I.O. and got the dead body of his small child Aarav recovered from inside the water canal. Since the child had been dumped into the canal and the body was not visible to anyone, none other than the accused could have disclosed its location. We therefore feel that the information provided by the accused to the IO leading to the discovery of the dead body is thoroughly incriminating and was rightly relied upon by the trial court. The recovery of the dead body of the child Aarav who was done to death by his own father is another clinching piece of incriminating circumstance which points towards the guilt of the accused. The recovery of the dead body of the child Aarav who was done to death by his own father is another clinching piece of incriminating circumstance which points towards the guilt of the accused. The accused also got recovered the weapon of the offence i.e. the knife concealed under the mattress of the bed lying in the room where the family resided on rent. The knife, the various blood stains on the floor, those on the motorcycle, on the clothes of the deceased Jenifer were analysed at the FSL and all tested positive for presence of B Group blood. The accused himself was having injuries on his hands when he was arrested. He could not provide any explanation for the same. Thus, we are of the firm opinion that even if the evidence of the eye witness Prakash Chandra is eschewed from consideration, the prosecution has available to it, strong clinching pieces of circumstantial evidence which invariably establish the guilt of the accused for the double murder of his wife and his child. It is our firm opinion that the learned trial court appreciated the evidence available on record in the correct perspective and arrived at the only possible and logical conclusion that the accused was unexceptionally responsible for the murder of his wife and child. The impugned judgment dated 13.08.2015 passed by the learned Additional Sessions Judge No.1, Bhilwara Camp, Gangapur, District Bhilwara does not suffer from any infirmity, illegality or shortcoming whatsoever warranting interference. 25. As a result of the discussion made herein above, we see no reason to interfere in the impugned judgment. Hence, the appeal is dismissed as being devoid of merit. 26. Record be returned to the trial Court forthwith.