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2019 DIGILAW 52 (RAJ)

Yogesh Kumar v. State of Rajasthan.

2019-01-04

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present jail appeal was admitted by this Court on 23/08/2012 and an Amicus Curiae was appointed to assist the Court on behalf of the accused appellant. The jail appeal aforesaid has been preferred by the appellant Yogesh Kumar against the judgment dated 16/05/2012 passed by learned Additional Sessions Judge No.3, Udaipur in Sessions Case No.2/2011, whereby the accused-appellant has been convicted and sentenced as under :- Offence Sentence Fine In default 302 IPC Life Imprisonment 2000/- 3 months' S.I. 465 IPC 1 year rigorous imprisonment 2. The brief facts necessary to be noted are that on 08/03/2011, a complaint (Ex.P.2) was filed by PW.2 Bheru Singh to the SHO, Police Station Surajpole, Udaipur stating therein that he was working as a Manager of Hotel Sagar Palace owned by Paras Chittora. On 04/03/2011, a person came to the hotel and requested for allotting a room. He was allotted Room No. 102. In the register, he entered his mobile number as 9770572208 and mentioned his name as Ramesh Tiwari S/o Ramnath Tiwari (wrongly mentioned), R/o. Ahmedabad. He was accompanied by his wife and daughter, aged two years. On 08/03/2011 at around 12 p.m., Omji Sweeper of his hotel informed him that the door of the room No.102 is half open and nobody was responding despite frequent knocking and ringing of bell. He informed the owner as well as police. On opening the door, he found that one lady and the girl child were lying dead in the room with a Chunni (Scarf) wrapped around their neck. This murders were committed by the person(Ramesh Tiwari) who stayed with them. Today, at around 8 in the morning, Ramesh Tiwari was seen playing with his daughter in the gallery of hotel. Ramesh Tiwari strangulated his wife and daughter by Chunni (scarf)causing their death. After the incident, Ramesh Tiwari absconded and he can identify on seeing him. 3. On the aforesaid complaint, a formal FIR No.94/2011 was registered against the accused for the offence under Section 302 IPC at the Police Station Surajpole, District Udaipur. 4. After completion of investigation, police filed a charge-sheet against the accused-appellant for the offence under Sections 302, 419 and 465 IPC. 5. Learned Trial Court framed, read over and explained the charges for the offence under Sections 302, 419 and 465 to the accused appellant who denied the charge and sought trial. 6. 4. After completion of investigation, police filed a charge-sheet against the accused-appellant for the offence under Sections 302, 419 and 465 IPC. 5. Learned Trial Court framed, read over and explained the charges for the offence under Sections 302, 419 and 465 to the accused appellant who denied the charge and sought trial. 6. During the trial, the prosecution examined as many as 23 witnesses and 80 documents were exhibited. Article-1 Photo C.D. of deceased and small diary was also produced on record. In defence, statements recorded under Section 161 of Bheru Singh, Smt. Bhagwanti, Chuna Singh, Ramphool, Bhagwan Sahay, Satya Naraian and identity card of Shivendra were got exhibited as Ex.D.1 to Ex.D.4. 7. The accused-appellant was examined under Section 313 Cr.P.C., 1973 and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he did not commit any offence. He was innocent. Police had falsely implicated him in connivance with witnesses Chuna Singh and Bhagwanti. No recovery was made from him. He never came to Udaipur. No mobile was recovered from him. The seized mobile SIM was not issued in his name. He had not seen the dead bodies of two deceased and therefore, he could not identify them. He was not working in the bank. He was called in the Kumhari Police Station where Chuna Singh and Bhagwanti were already present who gave certain papers and photographs for falsely implicating him. He had not committed murder of these persons. Police got his signatures on blank papers in Udaipur and other documents were falsely prepared by fabricating his signatures. 8. 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 16/05/2012. Hence this appeal. 9. We have heard learned counsel for the appellant and the learned Public Prosecutor. 10. Learned amicus curiae appearing for the appellant submits that there is no evidence on record which can remotely connect the appellant with the commission of the offences alleged in the present case. He further submits that there are material contradictions in the statements of the prosecution witnesses which create doubt in the prosecution story. The independent witness, namely, PW.4 Shaitan Singh has been declared hostile. He further submits that there are material contradictions in the statements of the prosecution witnesses which create doubt in the prosecution story. The independent witness, namely, PW.4 Shaitan Singh has been declared hostile. The recoveries have been planted in order to falsely rope the appellant in the present case. Learned trial Court did not appreciate the evidence in the correct perspective and, therefore, erred while convicting the appellant vide judgment dated 16/05/2012. The chain of circumstances in the present case is not so complete which may point out towards the only conclusion that it was the none other than the appellant who committed the offences alleged in the present case. 11. On the strength of the submissions made above, learned amicus curiae 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 he judgment dated 16/05/2012 passed by learned trial Court. 12. On the other hand, learned public prosecutor has supported the impugned judgment dated 16/05/2012 and submitted that the prosecution had been able to prove the charges levelled against the appellant beyond all reasonable doubts and there is direct and clinching evidence of the witnesses PW.2 Bheru Singh and PW.5 Om Prakash who affirmatively testified that it was the appellant who was staying with the deceased in the room allotted to them and was seen playing with the girl child in the gallery in the morning and immediately thereafter the mother and daughter were found dead in the room. He further submits that there was no reason for the appellant to flee from the spot, if he was innocent. Further, the name, telephone number and the address entered in the register by the appellant were found fake. He further submits that the appellant was identified by PW.2 Bheru Singh and PW.4 Shaitan Singh during the identification parade. The recovery of mobile phone and tickets ( Ex.P.14 ) along with the FSL Report (EX.P.71) regarding hand writing and Forensic Science Laboratory Report (Ex.P.77) showing DNA profile of the appellant matching with the fetus in womb of the mother as well as that of the murdered child completes the chain of circumstances in the present case. The recovery of mobile phone and tickets ( Ex.P.14 ) along with the FSL Report (EX.P.71) regarding hand writing and Forensic Science Laboratory Report (Ex.P.77) showing DNA profile of the appellant matching with the fetus in womb of the mother as well as that of the murdered child completes the chain of circumstances in the present case. He further submits that testimony of PW.11 Santosh, PW.12 Bhagwanti and PW.13 Chuna Singh is categoric to the effect that the appellant took away deceased Baljeet Kaur and her daughter Jai Shree for a pleasure trip and they were ultimately found dead in Udaipur. He, therefore, prays that no interference in the judgment of conviction dated 16/05/2012 is warranted. 13. We have considered the submissions made at bar and have closely scrutinised the record of the trial Court. 14. PW.2 Bheru Singh is the complainant/first informant. He stated that on 04/03/2011, a person portraying himself as Ramesh Tiwari came to his hotel Sagar Palace and booked a room. 15. He was allotted room No.102. On 08/03/2011 in the morning when Sweeper went for cleaning the said room, he rang the bell but nobody responded. At 12 O' Clock, Sweeper informed him that gate was not completely closed but despite ringing the bell, nobody opened the door. After getting this information, the informant went there and rang the bell but nobody responded. Thereafter, he informed the owner of the hotel as well as police. Police came there and opened the door. In the said room, dead bodies of one lady and a girl child were lying. PW.5 Om Prakash who was working as a Sweeper in Sagar Palace Hotel stated that when he went to clean room No.102, he rang the bell thrice but did not receive any response. Thereafter, he knocked the door which got slightly opened and he saw that on the bed, a lady was sleeping having her face towards bathroom then he again rang the bell but nobody responded. Thereafter, he informed the Manager who in turn called the owner of the hotel on the spot. PW.9 Irfan is the Auto Driver. He stated that on 04/03/2011, when he was coming from City Station Road, Udaipur to Udiyapole, at around 4 O' clock, one passenger along with a lady and a small girl hired his auto. The said passenger told him to take them to Sagar Palace Hotel. PW.9 Irfan is the Auto Driver. He stated that on 04/03/2011, when he was coming from City Station Road, Udaipur to Udiyapole, at around 4 O' clock, one passenger along with a lady and a small girl hired his auto. The said passenger told him to take them to Sagar Palace Hotel. He dropped them there. PW.11 Santosh stated that deceased Bajleet was her elder sister. Fifteen years ago, her sister was married with Mittu Singh. Mittu Singh used to maltreat her sister, therefore, her sister came to parental house. Accused-appellant Yogesh used to frequently visit their house in connection with recovery of some loan amount. He developed a relationship with her sister. He assured her sister that he would look after her children. He took away her sister along with the girl child, namely, Jai Shree for a pleasure trip. She read a news item that her sister and Jai Shree were murdered. PW.12 Bhagwanti and PW.13 Chuna Singh stated almost on the same lines as stated by PW.11 Santosh. PW.21 Sobhagya Singh is the Investigating 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 and submitted the charge sheet before the Court of competent jurisdiction. PW.23 Dr. Anupam Johari, while posted as Medical Jurist in the Maharana Bhupal Hospital, Udaipur conducted the autopsy upon bodies of the deceased Baljeet Kaur and Jai Shree. He stated that Baljeet Kaur was pregnant having five months fetus. There were strangulation marks on the neck of the deceased and cause of death was asphyxia due to strangulation. Similarly, he conducted the postmortem of baby Jai Shree and stated that there were strangulation marks on the neck and the cause of death was shown to be asphyxia due to strangulation. Ex.P.42 is the postmortem report of deceased Baljeet Kaur wherein the cause of death is shown to be asphyxia due to strangulation. Ex.P.43 is the postmortem report of Jai Shree wherein the cause of death is shown to be asphyxia due to strangulation. Ex.P.10 is report of Identification Parade by Bheru Singh and Ex.P.12 is the report of identification parade by Shaitan Singh. Ex.P.43 is the postmortem report of Jai Shree wherein the cause of death is shown to be asphyxia due to strangulation. Ex.P.10 is report of Identification Parade by Bheru Singh and Ex.P.12 is the report of identification parade by Shaitan Singh. Ex.P.14 is the recovery of mobiles belonging to the appellant Yogesh Kumar and his wife and the railway ticket from Raigarh to Ahmedabad and from Udaipur City to Ahmedabad and further from Ahmedabad to Raigarh. Ex.P.71 is the report of the hand writing expert which shows that the hand writing of the appellant tallied with the hand writing in the guest register of the Hotel Sagar Palace. Ex.P.77 is the Forensic Science Laboratory Report showing the DNA of the appellant matching with the fetus as well as the deceased child Jai Shree. 16. The fact that the appellant was having relationship with deceased Baljeet Kaur is clearly borne out from the statements of PW.11 Santosh, PW.12 Bhagwanti and PW.13 Chuna Singh who are sister, mother and father of the deceased Baljeet Kaur respectively. Besides, from the co-habitation of deceased Baljeet Kaur and the appellant, Jai Shree was born. Baljeet Kaur was carrying a child from the loins of the accused when she was murdered. It has also been stated by these witnesses that the appellant had taken Baljeet Kaur and Jai Shree for a pleasure trip to Udaipur. The appellant took a room in the hotel Sagar Palace while making entries in the hotel register in a fictitious name Ramesh Tiwari. 17. The said fact is evident from the register of the hotel produced on record as Ex.P.7 which bears the entry at Serial No. 469 under the hand writing of the appellant which has been proved by the hand writing expert vide Ex.P.71. Although the appellant impersonated himself as Ramesh Tiwari while making the entry but the Handwriting Expert's report conclusively proves that the appellant made the entry in the register of the Hotel Sagar Palace in Udaipur. The fact that the appellant had travelled to Udaipur by train also gets corroborated by the recovery of tickets (Ex.P.14). 18. Although the appellant impersonated himself as Ramesh Tiwari while making the entry but the Handwriting Expert's report conclusively proves that the appellant made the entry in the register of the Hotel Sagar Palace in Udaipur. The fact that the appellant had travelled to Udaipur by train also gets corroborated by the recovery of tickets (Ex.P.14). 18. Having satisfied ourselves with the fact that presence of the appellant is conclusively proved in Udaipur, we have examined the testimony of PW.2 Bheru Singh, PW.5 Om Prakash which shows that the appellant accompanied deceased Baljeet Kaur and Jai Shree and stayed in the hotel as it has also come on record that in the morning, the appellant was seen playing with his daughter Jai Shree in the corridor of the hotel. Soon thereafter, Baljeet Kaur and Jai Shree were found strangled to death in the room and the appellant was missing and therefore we have no reason to doubt that it was the appellant alone who murdered Baljeet Kaur and Jai Shree. 19. Further, the absence of any explanation by the accused in his statement under Section 313 Cr.P.C , 1973firmly establishes the fact that the appellant had no explanation to offer in the matter leading to the only conclusion that it was none else than the appellant who was present in the room and murdered the deceased Baljeet Kaur and Jai Shree by strangulating their neck with a scarf (chunni). 20. We are gainfully benefited by the observations of their Lordships of the Hon'ble Supreme Court in the case Harijan Bhala Teja vs. State of Gujarat reported in, (2016) 12 SCC 665 , wherein it has been held that when the appellant alone was staying with his wife at the time of her death, it was for him to show as to in what manner she died, when prosecution successfully proved her homicidal death inside the four walls of the matrimonial house. Their Lordships have held in para 19 of the judgment as under: - "19. Section 106 of the Evidence Act, 1872 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Their Lordships have held in para 19 of the judgment as under: - "19. Section 106 of the Evidence Act, 1872 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death." 21. The appellant along with deceased Baljeet Kaur and Jai Shree were staying in the hotel room and there was no body else in the room at the time of the incident. Therefore, in view of the evidence as discussed above and the lack of explanation by the accused leads to the only conclusion that it was none else than the appellant who was involved in the offences alleged in the present case. 22. The recovery of mobile and tickets (Ex.P.14) along with the FSL Report (EX.P.71) regarding hand writing of the appellant matching with the register of the hotel Sagar Palace and Forensic Science Laboratory Report (Ex.P.77) showing DNA profile of the appellant matching with the fetus as well as the daughter, the medical evidence in the shape of statement of Dr. Anupam Johari and the postmortem reports of the deceased Baljeet Kaur and Jai Shree complete the chain of circumstances in the present case. 23. In view of the detailed discussion as above, we are not inclined to interfere in the judgment of conviction dated 16/05/2012. Resultantly, the appeal fails and the same is hereby dismissed.