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2019 DIGILAW 977 (RAJ)

Shankar Singh v. State of Rajasthan

2019-04-02

BANWARI LAL SHARMA, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : 1. Present appellant is stepfather of victim aged 10 years (name of victim has been withheld to protect her identity). Case of the prosecution as set out in the charges is that the appellant kidnapped her stepdaughter on 08.05.2012 and thus committed offence punishable under Section 364, IPC. It is the further case of the prosecution that the appellant had performed unnatural offence with the victim and thereafter committed her murder. Thus the appellant was charged for the offences under Sections 364, 365, 377 and 302, IPC. 2. The Court of Additional Sessions Judge No. 4, Ajmer vide impugned judgment dated 05.02.2013 convicted the appellant for offences under Sections 302, 364 and 365, IPC. The appellant was acquitted of offence under Section 377, IPC by extending benefit of doubt. Having convicted the appellant vide impugned judgment dated 05.02.2013 the trial Judge on the same day by an order of even date sentenced the appellant as under:- S. No. For offence under Section Sentenced to 1 302, IPC Life imprisonment with fine of Rs. 10,000/-, in default of payment of fine to further undergo two months simple imprisonment 2 364, IPC Life imprisonment with fine of Rs 10,000/-, in default of payment of fine to further undergo two months simple imprisonment 3 365, IPC Seven years simple imprisonment with fine of Rs. 5,000/-, in default of payment of fine to further undergo one month's simple imprisonment 3. All the sentences were ordered to run concurrently. 4. Aggrieved against his conviction and sentence the appellant filed the present appeal through jail. 5. Mr. Rajesh Kapoor was appointed as Counsel by the Rajasthan State Legal Services Authority to defend the appellant. Today Mr. Harshad Kapoor on behalf of Shri Rajesh Kapoor, Counsel for the appellant has ably assisted us and has taken us through the evidence and has made a valiant effort to secure acquittal of the appellant. 6. Having perused the record and hearing the Counsel for the appellant and the learned Public Prosecutor, we are not inclined to accept the present appeal. Before we state our reasons it will be necessary to recapitulate brief facts of the case. 7. In the present case criminal proceedings were set into motion by wife of the appellant, namely Smt. Chooka Devi (PW- 1). Before we state our reasons it will be necessary to recapitulate brief facts of the case. 7. In the present case criminal proceedings were set into motion by wife of the appellant, namely Smt. Chooka Devi (PW- 1). On 09.05.2012 at about 9.30 a.m. she presented a written report (Exhibit P1) before the SHO, Police Station Alwar Gate, Ajmer. In the written report she stated that she was earlier married with one Jaisingh Rawat. From her earlier marriage she was having a daughter i.e. victim, aged 10 years. 7-8 years before the date of presentation of written report her matrimonial relationship with her earlier husband had turned sour. She left her earlier husband and performed marriage with the present appellant. From the loins of present appellant Smt. Chooka Devi (PW-1) gave birth to a son, namely Vishnu, aged 3 years and a daughter namely Payal, aged 1-1/2 years. She further stated that her husband used to go for labour work and she used to remain at the house for taking care of children. Her husband, the present appellant, was addicted to liquor and alcohol. She further stated that her daughter from the previous marriage was staying with her and this fact was not acceptable to the present appellant and therefore he used to have altercation with the complainant. The complainant stated that on the day of occurrence she left the house to do the labour work. When she returned and asked from the children about the eldest daughter she was informed that she had gone to market to buy a toffee. In the evening she enquired from the appellant about the whereabouts of her eldest daughter. The appellant failed to give any satisfactory reply. The neighbours on the next day i.e. 09.05.2012 informed her that on 08.05.2012 the accused at about 2.30 p.m. had taken her eldest daughter (victim) on a motorcycle. On the basis of last seen, as disclosed by the neighbours, complainant Smt. Chooka Devi (PW-1) lodged an FIR against the appellant by expressing suspicion that her daughter has been murdered by the accused- appellant. 8. The prosecution in-order to secure conviction of the appellant examined 14 witnesses, namely Smt. Chooka Devi (PW- 1), Prakash (PW-2), Manoj (PW-3), Ajay Singh (PW-4), Sarbu Singh (PW-5), Sohan Singh (PW-6), Kalu Singh (PW-7), Shankar (PW-8), Vijendra Singh (PW-9), Amruddin (PW-10), Ramswaroop (PW-11), Narendra Singh (PW-12), Dr. 8. The prosecution in-order to secure conviction of the appellant examined 14 witnesses, namely Smt. Chooka Devi (PW- 1), Prakash (PW-2), Manoj (PW-3), Ajay Singh (PW-4), Sarbu Singh (PW-5), Sohan Singh (PW-6), Kalu Singh (PW-7), Shankar (PW-8), Vijendra Singh (PW-9), Amruddin (PW-10), Ramswaroop (PW-11), Narendra Singh (PW-12), Dr. R.K. Mathur (PW-13) and Jaisingh Nathawat (PW-14). The testimony of the above witnesses can be divided into following four parts:- (i) Motive; (ii) Last seen; (iii) Recovery of dead body at the instance of the appellant upon disclosure statement suffered by the appellant; and (iv) Report of Forensic Science Laboratory wherein semen has been found on the frock of the deceased and the clothes of the accused. 9. To prove motive the prosecution examined Smt. Chooka Devi (PW-1) and Prakash (PW-2), younger brother of Smt. Chooka Devi. A perusal of the testimony of Smt. Chooka Devi (PW-1) and Prakash (PW-2) reveal that Smt. Chooka Devi was earlier married with Jaisingh. From loins of Jai Singh, a daughter, victim was born. On the day of occurrence victim-daughter of Smt. Chooka Devi from the previous husband was aged 10 years. Smt. Chooka Devi (PW-1) further stated that she had performed remarriage with present accused appellant Shankar Singh. It has also come in evidence that Smt. Chooka Devi after leaving her previous husband had performed marriage with the present appellant and had given birth to two children. It has also come in evidence that the appellant could not accept victim who was a daughter from the previous husband of Smt. Chooka Devi (PW-1). 10. So far as evidence of last seen is concerned, it has emerged in the testimony of Manoj Prajapat (PW-3) and Sohan Singh Rawat (PW-6). After reading the testimony of Manoj Prajapat (PW-3), we are not in a position to rely upon his testimony as he has not identified the appellant as the one who was last seen with the victim. This witness stated that he is a shopkeeper and on the day of occurrence i.e. 08.05.2012 a person along with a girl had come to his shop. This witness further stated that subsequently police brought the accused in a police van and he had identified the said person as the one who had come with the girl at his shop. However, we find that the testimony of Sohan Singh Rawat (PW-6) is reliable and trustworthy. This witness further stated that subsequently police brought the accused in a police van and he had identified the said person as the one who had come with the girl at his shop. However, we find that the testimony of Sohan Singh Rawat (PW-6) is reliable and trustworthy. Deposition of Sohan Singh Rawat (PW-6) is sufficient to hold that the present appellant accompanied by a girl had visited the house of Sohan Singh Rawat (PW-6). We find that Sohan Singh Rawat is an independent witness. 11. Sohan Singh Rawat (PW-6) in the Court has stated that he is having a house in village Bhoonabai. He had undertaken construction of his house and the work of grinding of floor was continuing. 7-8 months before he had engaged Shankar Singh Rawat, present appellant for the work. On 08.05.2012 at about 2.30 p.m. accused came with the girl, aged 10 years and borrowed Rs. 100/- with the promise that he will return the amount. Thus, the prosecution has succeeded to prove on record that the appellant on 08.05.2012 at about 2.30 p.m. was accompanied by a girl, aged 10 years. We can safely assume on basis of accompanying circumstances that the said girl was victim i.e. stepdaughter of the appellant. Thus, the chain of circumstance lead us to the conclusion that the appellant was living with the victim who is none else but his step daughter. When Smt. Chooka Devi (PW-1), wife of the appellant returned to the house after doing labour work, victim aged 10 years was found missing. She was seen by Sohan Singh Rawat (PW-6) along with the appellant. The evidence of last seen emerging in the testimony of Sohan Singh Rawat (PW-6) read with the statement of Smt. Chooka Devi (PW-1) is sufficient to hold that the appellant is bound to explain the whereabouts of the deceased-victim. 12. It has come in the evidence that the appellant on 09.05.2012, on the next day of the occurrence suffered a disclosure statement (Exhibit P32) wherein he stated that he can get the dead body of the deceased recovered. In pursuance of disclosure statement (Exhibit P32), vide Recovery Memo (Exhibit P4) appellant on 09.05.2012 at 1.35 p.m. got the dead body recovered from a drain behind the hill. The Recovery Memo (Exhibit P4) was witnessed by Ajay Singh (PW-4) and one Prabhu Singh. In pursuance of disclosure statement (Exhibit P32), vide Recovery Memo (Exhibit P4) appellant on 09.05.2012 at 1.35 p.m. got the dead body recovered from a drain behind the hill. The Recovery Memo (Exhibit P4) was witnessed by Ajay Singh (PW-4) and one Prabhu Singh. Ajay Singh (PW-4) in the Court stated that accused led the police party to the spot where the dead body was lying and also got recovered the same. This witness also witnessed the various recoveries effected from spot which included clothes and underwear of the victim-child. The defence failed to demolish the testimony of Ajay Singh (PW-4). 13. Counsel for the appellant has laid much emphasis upon the admission made by Ajay Singh(PW-4) in the cross-examination that his signatures were obtained in the police station. We find that this stray line is to be read along with entire testimony of Ajay Singh (PW-4), wherein he stated that he was present at the spot. The police conducted entire proceedings at the spot and thereafter he was called at the police station and his signatures were obtained. We may emphasize that Ajay Singh (PW-4) is an independent witness and he has no animus against the appellant. 14. Having read the testimony of Ajay Singh (PW-4), we are convinced that implicit reliance can be placed upon his testimony. 15. Exhibit P34 is the report of Forensic Science Laboratory. In Packet 'G', Exhibit-2, frock of the deceased was sent to the Forensic Science Laboratory along with various other articles. The report Exhibit P34 submitted by the Forensic Science Laboratory prove that on the frock of the deceased semen was found. However we may note that on the clothes of accused no semen was detected. Thus even if we ignore the report of Forensic Science Laboratory, the testimony of Smt. Chooka Devi (PW-1), Ajay Singh (PW-4) and Sohan Singh Rawat (PW-6) is sufficient to complete the chain of circumstances to arrive at the conclusion that the offence has been committed by the appellant and by none else. We cannot become oblivious of the fact that the appellant was having a fiduciary relationship and he is the stepfather of the deceased-victim. 16. Taking into consideration the totality of the circumstances we find no merit in the appeal and consequently the same is dismissed. However, we appreciate the preparation and efforts made by Mr. We cannot become oblivious of the fact that the appellant was having a fiduciary relationship and he is the stepfather of the deceased-victim. 16. Taking into consideration the totality of the circumstances we find no merit in the appeal and consequently the same is dismissed. However, we appreciate the preparation and efforts made by Mr. Harshad Kapoor who has ably argued the matter on behalf of the appellant. He be paid remunerations as per norms by the Rajasthan State Legal Services Authority, Jaipur.