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2019 DIGILAW 803 (RAJ)

Dharmendra Singh @ Kaku v. State of Rajasthan

2019-03-11

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present criminal appeal has been preferred by the accused-appellant against the judgment and order of conviction dated 19.11.2011 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar in Sessions Case No. 02/2010 (67/2009) whereby the accused-appellant was convicted and sentenced as under :- Offence Sentence U/s 302 I.P.C. Life imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further undergo 03 months' additional simple imprisonment U/s 201 I.P.C. 03 Years' simple imprisonment with fine of Rs. 500/- and in default of payment of fine to further undergo 01 month additional simple imprisonment U/s 397 I.P.C. 07 Years' rigorous imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further undergo 03 months' additional simple imprisonment U/s 3/25-1B (IV) Arms Act 03 years simple imprisonment with fine of Rs. 1,000/-and in default of payment of fine to further undergo 03 months' additional simple imprisonment. All the sentences were ordered to run concurrently Arms Act 03 years simple imprisonment with fine of Rs. 1,000/-and in default of payment of fine to further undergo 03 months' additional simple imprisonment. All the sentences were ordered to run concurrently 2. Briefly, the facts of the case are that Prem Kumar (P.W. 4) submitted the written report (Ex.P/11) to the S.H.O. Police Station Sadar, Sri Ganganagar on 22.06.2009 at 12.15 P.M. stating therein that he was resident of 1-F Chhoti. He cultivated the agricultural land bearing Kila Nos. 15 to 25 of Murabba No. 29, Chak No. 5 M.L. on contract basis, which belonged to Sumanlata D/o Ramjilal. On 22.06.2009, when he was working at the field, at around 11.30 A.M. Bhagirath son of Dungar Ram, Resident of 4- F Chhoti near Sahuwala informed him that a dead body was lying in the government water channel. He went at the spot and saw the dead body lying in the water channel near Kila No. 15 having number of injuries and swelling on the neck. Someone had murdered the unidentified person and had thrown the dead body in the water channel. The age of the deceased according to him was approximately 35 years. 3. On this report, a formal F.I.R. No. 149/2009 was registered at Police Station Sadar, Sri Ganganagar for the offences under Sections 302 & 201 of I.P.C. against the unknown person and investigation commenced. The age of the deceased according to him was approximately 35 years. 3. On this report, a formal F.I.R. No. 149/2009 was registered at Police Station Sadar, Sri Ganganagar for the offences under Sections 302 & 201 of I.P.C. against the unknown person and investigation commenced. During the course of investigation, the police after completing the formalities at the place of incident, took the body of the deceased to the Government Hospital, which was kept in the mortuary and was identified by Karnail Singh (P.W. 7). On getting information, the relatives of the deceased also reached the mortuary of the Government Hospital and identified the body and were present at the time of postmortem. The bloodstained clothes of the deceased were recovered and sent for F.S.L. examination. Thereafter, a photo copy of the bill of the mobile phone was provided by the family of the deceased to the Investigation Officer. The mobile phone was of 3110 Model of Nokia Company having IMEI No. 355728026095346. The Investigating Officer after having traced the location of the said mobile, which was being used by the accused-appellant, arrested him vide Arrest Memo dated 18.09.2009 (Ex.P/18). After arrest, the accused-appellant supplied an information under Section 27 of the Evidence Act, on the basis whereof, the place of incident was verified and the recovery of mobile phone vide Ex.P/19 and the weapon of offence i.e. pistol vide Ex.P/21 was effected at his instance. 4. After conclusion of investigation, the police filed charge sheet against the accused-appellant for the offences under Sections 302, 201 & 397 of I.P.C. and Section 3/25 of the Arms Act. 5. Learned trial court framed, read over and explained the charges for the offences under Sections 302, 201 & 397 of I.P.C. and Section 3/25-1B(IV) of the Arms Act to the accused-appellant, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 21 witnesses and exhibited documents from Ex.P/1 to Ex.P/84 in support of its case. 7. The accused-appellant was examined under section 313 of Cr.P.C., 1973 and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that he was innocent and had been falsely implicated in the case. However, no evidence was adduced by the accused-appellant in his defence. 8. 7. The accused-appellant was examined under section 313 of Cr.P.C., 1973 and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that he was innocent and had been falsely implicated in the case. However, no evidence was adduced by the accused-appellant in his defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 19.11.2011. Hence this appeal. We have heard the arguments advanced by the learned counsel for the accused-appellant and the learned Public Prosecutor. 9. Learned counsel for the accused-appellant has fervently urged that there is no direct evidence against the accused appellant in the case and that it is a case purely based upon weak and unconvincing circumstantial evidence. The prosecution case is based solely upon the testimony of P.W. 1 - Manu Masih which has been relied upon by the learned trial court. The statement of P.W. 1 - Manu Masih, if seen objectively, would be sufficient to conclude that he is not a witness of any credit worthiness as his conduct was totally unnatural, therefore, solely relying upon the testimony of P.W. 1 - Manu Masih would not be safe and the same is required to be discarded. 10. Learned counsel Mr. Shah has taken us through the statement of P.W. 1 - Manu Masih and has pointed out that the same is full of material omissions and contradictions and it cannot be reasonably conceived that if a person would know that the driver of his truck had been murdered, he would keep quiet and not inform the police and the members of the family of the deceased about any such untoward incident. 11. Learned counsel for the accused-appellant further submits that the investigation agency has made a futile attempt to establish that the accused-appellant fired at the deceased by 12 bore country made pistol and caused homicidal death. Firstly, the F.S.L. Report (Ex.P/59) does not fasten any criminal liability against the accused-appellant inasmuch as the recovered empty 12 bore cartridge, after examination, was not found to have been fired from the recovered pistol. Firstly, the F.S.L. Report (Ex.P/59) does not fasten any criminal liability against the accused-appellant inasmuch as the recovered empty 12 bore cartridge, after examination, was not found to have been fired from the recovered pistol. Secondly, the lead pellets, two in number, which were recovered by the Medical Jurist from the dead body at the time of conducting autopsy and handed over to the police for examination by F.S.L. do not even remotely connect with the recovered 12 bore pistol, and thus, nothing could be established in relation to the death of the deceased from the evidence on record as opined by the F.S.L. 12. He further submits that so far as identification of accused appellant is concerned, he was arrested as late as on 18.09.2009 i.e. almost three months after the alleged incident and the identification parade was conducted on 25.09.2009 and thus, these proceedings have no sanctity whatsoever. 13. Learned counsel further submits that the alleged recovery of mobile phone does not in any circumstance connect the accused appellant with the murder of Rajvinder Singh so as to implicate him for the crime. The chain of so-called circumstantial evidence is in no manner complete inasmuch as the same manifestly lacks the reasonable hypothesis that the accused-appellant is guilty of the offences alleged in the case. The circumstances put forth by the prosecution against the accused-appellant do not satisfactorily prove anything so as to draw a conclusion of guilt against the accused-appellant. He further submits that there was no motive or intention on the part of the accused-appellant for committing the murder of the deceased Rajvinder Singh. 14. Learned counsel on the strength of these arguments urges that the prosecution could not prove beyond reasonable doubt that the accused-appellant was guilty of the murder of Rajvinder Singh and therefore, the learned trial court committed grave factual and legal error while convicting and sentencing the accused-appellant for the alleged offences as above vide Judgment dated 19.11.2011 and thus, he is entitled to be acquitted of the charges levelled against him. 15. Per contra, learned Public Prosecutor, while supporting the judgment dated 19.11.2011 has submitted that the prosecution has been able to prove and establish the allegations and charges against the accused-appellant beyond all manner of doubt. 15. Per contra, learned Public Prosecutor, while supporting the judgment dated 19.11.2011 has submitted that the prosecution has been able to prove and establish the allegations and charges against the accused-appellant beyond all manner of doubt. He has placed reliance on the testimony of P.W. 1 - Manu Masih and submitted that he was witness of the nature of last seen evidence and had correctly identified the accused-appellant in identification parade held during investigation as well as during his sworn testimony. He further submits that when the accused-appellant and the deceased after getting off the truck went outside and Rajvinder Singh did not return, it was incumbent upon the accused-appellant to disclose the circumstances under which Rajvinder Singh disappeared. On the contrary, the accused appellant after coming back to the cabin of the truck threatened P.W. 1 - Manu Masih of dire consequences if he dared to disclose this fact to anybody else. The circumstance that 10-20 minutes after the accused-appellant and the deceased had gone behind the truck, he heard the noise of gunshot coupled with the fact that a country made pistol was shown to P.W. 1 - Manu Masih shows that the same was used by the accused-appellant in the incident. The statement of P.W. 1 - Manu Masih is also getting corroboration from the medical evidence in the shape of statement of P.W. 11 - Dr. Surendra Mohan Batra who stated that the cause of death of the deceased was a firearm injury. The postmortem report (Ex.P/23) shows that Injury No. 1 was caused by gunshot and was sufficient to cause death in the ordinary course of nature. He further submits that the recovery of the mobile (Ex.P/19) on the information supplied by the accused-appellant under Section 27 of the Evidence Act (Ex.P/49) shows that IMEI number of the recovered mobile tallies with the number mentioned in the bill of that mobile phone provided by the family of the deceased, which was being used by the deceased Rajvinder Singh. He further submits that the prosecution has been able to prove beyond all manner of doubt that it was accused-appellant alone and none else, who was involved in the commission of the offences alleged in the case. He further submits that the prosecution has been able to prove beyond all manner of doubt that it was accused-appellant alone and none else, who was involved in the commission of the offences alleged in the case. He further submitted that the learned trial court, after evaluating the entire facts and evidence, come to the only possible and logical conclusion of the guilt of the accused and rightly convicted the accused-appellant for the offences alleged in the case vide Judgment dated 19.11.2011, which does not warrant any interference by this Court. 16. We have considered the submissions made at bar and minutely gone through the record of the learned trial court as well as the judgment dated 19.11.2011 impugned herein. 17. P.W. 1 - Manu Masih is the star witness of the prosecution. He deposed that Rajvinder Singh was son of Sardar Pritam Singh. He was accompanying Rajvinder Singh on his truck. About 02 years ago, they went to Jammu. On their way back, they first reached Navipur, from where, they started for Ahmedabad. On the way to Ahmedabad, one person known to his Ustad (Raju @ Rajendra @ Rajvinder Singh) met him. He borrowed Rs. 500/- from Ustad. They went to Ahmedabad and stayed there for one day. After loading the sanitary wares, they started from Ahmedabad and stopped on the way at a Gurudwara where they had food. The accused was talking to Ustad. They stopped at a hotel and had food and tea. They reached Ganganagar bypass. Around 6-7 kms. prior to reaching the bypass, the accused told that he had a country made pistol with him. The accused had a black and red coloured bag in which the pistol was kept. The truck was stopped on the left side of the highway and the accused and Ustad got off the truck. The accused took a long screw driver from the truck for digging a pit. He told that Punjab border was approaching and they should leave the pistol there, which he would collect later on. Both of them went behind the truck and he kept waiting in the cabin of the truck. 10-20 minutes later, he heard the sound of a gun fire. Thereafter, the accused came back in the cabin of the truck and threatened him that if he informed about this incident to anybody, he would also be killed. Both of them went behind the truck and he kept waiting in the cabin of the truck. 10-20 minutes later, he heard the sound of a gun fire. Thereafter, the accused came back in the cabin of the truck and threatened him that if he informed about this incident to anybody, he would also be killed. The truck was driven by the accused thereafter. He stopped the truck on a hotel at the Ganganagar bypass. He and the accused got off the truck and when he asked about his Us tad (Raju @ Rajendra @ Rajvinder Singh), the accused threatened him of dire consequences if he would inform anything to anybody. The accused left the place and went towards the city area along with money and the mobile phone of the deceased Rajvinder Singh. He kept sitting in the truck waiting for the deceased. In the morning, he went to his home after taking lift in other truck. He informed about the incident to the family members of Rajvinder Singh and accompanied them back to Ganganagar. He identified the accused during the identification parade in the jail and also in his sworn testimony. Nothing significant was elicited during the cross examination of this witness so as to doubt the credibility or veracity of the deposition made by him in the examination-in-chief. 18. P.W. 4 - Prem being the first informant has stated facts almost on the same lines on the basis of which he filed the written report (Ex.P/11) to the police. He further stated that he affixed his signatures on the memos prepared by the police during the course of investigation. 19. P.W. 11 - Dr. Surendra Mohan Batra who conducted the autopsy upon the dead body of the deceased stated that there were multiple injuries on the intestine and vital organs were decomposed. The cause of death was the Injury No. 1 sustained by the deceased by firearm which was sufficient to cause death in the ordinary course of nature. 20. P.W. 15 - Gopalram is the Investigating Officer of the matter and stated that during the course of investigation, the bill of the mobile phone used by the deceased was made available to him in which, its IMEI number was mentioned. The same was tracked and after some time, it was found that the mobile phone with IMEI No. 355728026095346 was being used by the accused-appellant. The same was tracked and after some time, it was found that the mobile phone with IMEI No. 355728026095346 was being used by the accused-appellant. Accordingly, the accused-appellant was arrested vide Arrest Memo dated 18.09.2009 (Ex.P/18). On the basis of the information supplied by the accused-appellant under Section 27 of the Evidence Act, the pistol was recovered vide Recovery Memo Ex.P/21 and the mobile of the deceased was recovered vide Recovery Memo Ex.P/19. He further stated that he prepared the site plan, recorded statements of the witnesses, effected recoveries, collected samples and after completion of investigation, as prescribed by law, submitted the report before the court of competent jurisdiction. 21. The postmortem report (Ex.P/23) shows that Injury No. 1 was caused by firearm which was sufficient to cause death in the ordinary course of nature. Besides this, the F.S.L. Report regarding firearm (Ex.P/59) as well as screw driver and other articles (Ex.P/60) were submitted before the learned trial court. 22. We also note that the statement of Manu Masih (P.W. 1) under section 161 of Cr.P.C., 1973 was recorded by the police on 22.06.2009 i.e. just after the incident wherein he informed the police about the incident on the same lines as narrated by him before the trial court. 23. The testimony of P.W. 1 - Manu Masih is clinching evidence in the case. His statement is quite natural and without any deviation, omissions or contradictions. The sequence also shows that when they reached near the Ganganagar Highway, the accused-appellant and the deceased got off the truck and went on the rear side but when out of the two, the deceased did not come back in the truck, it was a natural anxiety of P.W. 1 - Manu Masih to ask the accused-appellant about the whereabouts of his Ustad Rajvinder Singh. The anxiety was quite natural since he heard a gunshot after both of them had left the truck and one of them did not return. When he made the inquiry, he was threatened of dire consequences by the accused-appellant. Thus, to reach the conclusion as to what would have happened, is not very difficult. If the conscience of the accused-appellant was clear, it would have been a very natural reaction of the accused to disclose the fact as to what had befallen to Rajvinder Singh. Failure to divulge this fact, zeroes down the suspicion on the accused-appellant. Thus, to reach the conclusion as to what would have happened, is not very difficult. If the conscience of the accused-appellant was clear, it would have been a very natural reaction of the accused to disclose the fact as to what had befallen to Rajvinder Singh. Failure to divulge this fact, zeroes down the suspicion on the accused-appellant. Not only this, the fact that after the incident when the truck was parked on the highway near a hotel and the accused-appellant absconded after threatening P.W. 1 - Manu Masih shows that it was none other than the accused-appellant who had murdered Rajvinder Singh as the pistol which was being carried by him was shown to this witness in the truck and immediately thereafter, P.W. 1 - Manu Masih heard the noise of gunshot. 24. The statement of P.W. 1 - Manu Masih gains significance and gets corroboration when the cause of death of the deceased Rajvinder Singh was found to be firearm injury as per the medical evidence. The statement of P.W. 1 - Manu Masih also gets fortified by the recovery of the mobile phone used by the deceased Rajivinder Singh from the accused-appellant. The IMEI number of the mobile mentioned in the bill when tallied with the IMEI number mentioned on the mobile phone recovered on the information of the accused appellant under Section 27 of the Evidence Act from his house was found to be the same. The accused-appellant failed to satisfy as to how the mobile phone carried by the deceased was found in his possession nearly after about three months of the incident. P.W. 1 - Manu Masih also identified the accused-appellant amongst 07 persons present during the test identification parade conducted in the jail and he also identified him during his sworn testimony. In these circumstances, we have no hesitation in holding that the testimony of P.W. 1 - Manu Masih is worth credence and absolutely reliable and natural in the case. The testimony of P.W. 1 - Manu Masih is getting complete corroboration from the testimony of P.W. 15 - Gopalram (Investigation Officer) and the medical evidence which has come on record coupled with the recoveries effected in the case. We also note that there was no animosity attributed to P.W. 1 - Manu Masih which could have motivated him to falsely implicate the accused-appellant in the case. 25. We also note that there was no animosity attributed to P.W. 1 - Manu Masih which could have motivated him to falsely implicate the accused-appellant in the case. 25. The argument of the learned counsel for the accused appellant that recovered 12 bore empty pellet was not found to have been fired from the recovered pistol is of no consequence and will not wipe out the evidence which has come on record totally, as discussed above. However, we find that the F.S.L. report (Ex.P/59) shows that the recovered pistol was a serviceable firearm. The Hon'ble Supreme Court in the case of Sonu @ Amar vs. State of Haryana reported in AIR 2017 SC 3441 has held that in the case of circumstantial evidence, certain principles are to be followed which are as under: "1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 26. In the case of State of Rajasthan vs. Kashi Ram reported in, (2006) 12 SCC 254 , the Hon'ble Supreme Court recapitulated the principles governing section 106 of the Indian Evidence Act as under :- "i. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. ii. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. iii. He must furnish an explanation which appears to the Court to be probable and satisfactory. iv. If he does so he must be held to have discharged his burden. ii. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. iii. He must furnish an explanation which appears to the Court to be probable and satisfactory. iv. If he does so he must be held to have discharged his burden. v. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. vi. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. vii. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. viii. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatibles with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain." 27. Keeping in mind the above principles, we are of the view that the evidence against the accused-appellant is sufficient to hold him guilty of the offence under Section 302 IPC in the present case. In view of discussion made above, we are of the firm opinion that the judgment dated 19.11.2011 passed by the learned trial court convicting and sentencing the accused appellant for the offences under Sections 302, 201 & 397 of I.P.C. and Section 3/25-1B(IV) of the Arms Act deserves to be upheld. Resultantly, the criminal appeal fails and is dismissed as such. The judgment and order dated 19.11.2011 passed by the learned trial court is upheld. The record of the trial court be returned forthwith.