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2022 DIGILAW 78 (UTT)

Manoj Rathor v. State of Uttarakhand

2022-04-06

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : RAMESH CHANDRA KHULBE, J. The appellant has preferred this appeal from jail assailing the judgment and order dated 22.05.2015 passed by the Sessions Judge, Dehradun in S.T. No.146 of 2013, State v. Manoj Rathore, whereby, the Trial Court has convicted the appellant u/s 302 IPC and sentenced him to undergo imprisonment for life along with a fine of Rs.50,000/- (Fifty Thousand), and in default of payment of fine, he was directed to undergo rigorous imprisonment for one year. 2. Put briefly, the facts of the case are that on 15.06.2013, Pravesh Kumar (P.W.1) lodged a written report before the Police Station Rishikesh, District Dehradun, mentioning that his elder sister Suman was married with Randhir Singh Rathore S/o Charan Singh, R/o Village Ram Nagar Danda, Post Thano, District Dehradun in the year 2002. About 6-7 years ago, Manoj Rathore (accused) brother–in-law (DEVAR) of the sister of the informant had left the job from Army and was living in the house and since then he used to make quarrel with his father, brother and sister of the informant on petty matters and also used to become furious to some extreme. This behavior of the accused was disclosed to the informant by his sister and her father-in-law had also informed the police about the behavior of the accused. The accused remained silent for sometimes, but thereafter, the accused again started misbehaving with the sister of the informant and threatened to kill her. When the sister of the informant disclosed to the informant, the family members of the informant tried to persuade the accused for the sake of social reputation of the family, but on 15.06.2013 at about 4.00 p.m. the neighour of the deceased informed the informant to reach early because some mishap has occurred with his sister. On this information, the informant immediately rushed to the house of his sister and saw that many persons had gathered in front of the house and his sister was lying on the floor with pool of blood. There were so many sharp edged weapon’s injuries on her body. The informant immediately informed the police and also informed 108 Ambulance, who reached at the spot and declared the sister of the informant dead. 3. On the basis of the said information, a Chick FIR Ex.Ka-11 was lodged with P.S. Rishikesh (Dehradun) on 15.6.2013 at 06.55 PM. There were so many sharp edged weapon’s injuries on her body. The informant immediately informed the police and also informed 108 Ambulance, who reached at the spot and declared the sister of the informant dead. 3. On the basis of the said information, a Chick FIR Ex.Ka-11 was lodged with P.S. Rishikesh (Dehradun) on 15.6.2013 at 06.55 PM. The Investigating Officer of the case, during investigation, took the dead body of the deceased in his possession, sealed the same and prepared sample of seal Ext.Ka-10 and inquest report Ext.Ka-2. After preparing Police Form-13 (Ex.Ka-6), the body was brought to the headquarters. Letters Ext. Ka-7 and Ka-8 were written to R.I. and Chief Medical Officer respectively for conducting postmortem on the body of the deceased. Sketch of body (Ex.Ka-9) was prepared, postmortem of dead body was conducted and postmortem report Ex.Ka-3/2 was prepared. On 15.06.2013 itself, Salwar (trousers) and undergarments of deceased, plain and blood stained soil were taken into possession and Fard Ex.Ka-3 was prepared and for arrest of the accused, pamphlets Ex.Ka-18 along with photo, were prepared and sent to all the Police stations of the districts besides other districts and for distribution to other States also. Letter Ext. Ka-19 was written to D. C. R.B. Dehradun. On 18.06.2013 after the arrest of accused, arrest memo Ext. Ka-20 and information about arrest Ext.Ka-21 were prepared. On the pointing out of the accused, from the old house of the accused which is near the place of incident, one scissors, T-shirt and Lower of accused were got recovered and Fard Ext. Ka-3/1 was prepared. The dead body was handed over to her family members and Supurdginama Ext. Ka-4 was prepared. Registration of case G.D. Ext. Ka-12, G. D. of the arrest of accused Ext. Ka-13, G. D. of interrogation Ext. Ka-14, G. D. of scissors and blood stained clothes Ext. Ka-16, G.D. of information received by Police station through R.T. Set Ext.Ka-16 were prepared. Through letter Ext. Ka-23, the blood stained clothes of deceased, undergarment (Underwear) and the clothes taken in possession during postmortem, two pieces of jeans taken from floor, scissors and blood stained clothes of accused were sent to Forensic Science Laboratory through Chief Judicial Magistrate, Dehradun and after examination, report of Director, Forensic Science Laboratory, Ext. Ka- 23 was received. Site plan Ext. Ka-23, the blood stained clothes of deceased, undergarment (Underwear) and the clothes taken in possession during postmortem, two pieces of jeans taken from floor, scissors and blood stained clothes of accused were sent to Forensic Science Laboratory through Chief Judicial Magistrate, Dehradun and after examination, report of Director, Forensic Science Laboratory, Ext. Ka- 23 was received. Site plan Ext. Ka-17 and the site plan Ext.Ka.22 of place of recovery of scissors and blood stained clothes, recovered on the pointing out of accused, was prepared. The statements of the witnesses were recorded and after collecting all the evidence, chargesheet Ext.Ka-24 against the accused u/s 302 IPC was submitted in the Court of Magistrate. 4. The concerned Magistrate took the cognizance of the offence and after providing necessary copies as envisaged u/s 207 of Cr.P.C committed the case to the Court of Session. On 30.09.2013, the Sessions Court, after taking cognizance, framed charge against the appellant under Section 302 IPC, to which, the appellant pleaded not guilty and claimed to be tried. 5. In order to prove its case against the appellant, the prosecution examined 10 witnesses, namely, PW1 Pravesh Kumar, PW2 Km. Sheetal, PW3 Randheer Singh Rathor, PW4 Babita, PW5 Dr. S.M. Shukla, PW6 S.I. Hemlata, PW7 H.C. Ashish Kumar, PW8 S.I. Pankaj Pokhariyal, PW9 SHO R.S. Aswal and PW10 Himanshu. 6. After completion of the prosecution evidence, the statement of appellant was recorded under Section 313 Cr.P.C. in which he denied the evidence led against him. In defence, the appellant did not produce any evidence. 7. After hearing both the parties, the trial court came to this conclusion that the prosecution has proved the case beyond reasonable doubt, accordingly, it convicted the appellant under Section 302 IPC and sentenced him as mentioned in paragraph no.1 of the judgment. Aggrieved thereby, the present appeal has been preferred. 8. It is argued by learned amicus curiae appearing on behalf of the appellant that there is no evidence on record to convict the appellant. PW1, Pravesh Kumar is not the eye-witness, PW2 Km. Sheetal is the interested witness while PW10 Himanshu is a child witness, and other witnesses are formal in nature. It is also argued that as per for FSL report, the blood was found disintegrated on item nos. 8 to 11 (piece of stones, scissors, trouser and T-shirt). PW1, Pravesh Kumar is not the eye-witness, PW2 Km. Sheetal is the interested witness while PW10 Himanshu is a child witness, and other witnesses are formal in nature. It is also argued that as per for FSL report, the blood was found disintegrated on item nos. 8 to 11 (piece of stones, scissors, trouser and T-shirt). The trial Court did assess the evidence properly; and therefore, the appellant is liable to be acquitted. 9. Per contra, learned Deputy Advocate General for the State argued that PW2 Km. Sheetal, is the neighbour who saw the appellant coming out from the room where the offence was committed; PW10, Himanshu is the elder son of the deceased, who was very much present at the spot, who supported the entire incident. There is no illegality in the impugned finding; and accordingly, the appeal is liable to be dismissed. 10. We have heard the learned counsel for both the parties and perused the entire record produced before us. 11. As per the FIR, the occurrence occurred on 15.06.2013, at about 4 P.M. The relationships of the appellant were not cordial with the deceased Suman, who was the sister-in-law of the appellant. On 15.06.2013, at about 4 P.M., PW1, Pravesh Kumar was informed by the neighbour of the deceased that some mishap had occurred with the sister of the informant. Accordingly, he reached at the matrimonial house of Suman, where there was a gathering. After entering the room, he saw that his sister Suman was lying on the floor. There were multiple injuries on her body. Accordingly, he informed the police as well as called the 108 Ambulance which reached at the spot and declared Suman dead. 12. The informant, Pravesh Kumar, appeared as PW1 who proved the written report Exhibit (Ka-1). 13. PW3, Randheer Singh Rathore, who is the brother of the appellant and husband of the deceased Suman, has stated that the appellant Manoj is his brother. The appellant was earlier in the Army, but he left the job after some dispute. He is a drug addict. Appellant was having enmity on account of the property and he used to quarrel with all the family members on this issue, although he was given his share. He further stated that on the day of incident, when he had gone to his job at Dharampur, his parents were at hospital of Dr. He is a drug addict. Appellant was having enmity on account of the property and he used to quarrel with all the family members on this issue, although he was given his share. He further stated that on the day of incident, when he had gone to his job at Dharampur, his parents were at hospital of Dr. Johri where the treatment of his mother was going on, while the wife, children and brother were at home. His sister, Sheetal, informed over phone that the appellant had inflicted injuries on Suman. On this information, he along with his father rushed to home. When he reached there, he saw that his wife, Suman, was lying on the floor with pool of blood. The appellant, Manoj Rathore, was not at home. He had fled away. 14. From the perusal of the statement of PW1, Pravesh Kumar (brother of the deceased) and PW3, Randheer Singh Rathore (husband of the deceased), it is clear that at the time of incident, they were not at the spot. 15. PW-5 is Dr. S. M. Shukla, who conducted the post-mortem of deceased and prepared post-mortem report Exhibit (Ka-3/2). 16. PW-6 is Hemlata, who is the witness of Panchnama. As per her statement, on 15.06.2013 when she was posted at Kotwali Rishikesh, an information was received at the police station that in Ram Nagar, Danda, one woman was murdered with sharp edged weapon. On this information, she along with other police personnel namely Prakash Pokhriyal, Lady Constable Mamta and R.C. Jaiveer accompanied with government vehicle reached at the spot where she prepared Panchnama, which is Exhibit (Ka-2). 17. PW-7 Ashish Kumar is the witness of Chick FIR and G.D. (General Diary). He clearly stated on 15.06.2013, he was posted at Kotwali Rishikesh. On that day, the written report Exhibit (Ka-1) was submitted by Pravesh Kumar. He lodged the chik FIR No.210 of 2013 u/s 302 IPC against appellant Manoj Rathore, which is Ex.Ka-11. Accordingly, G.D. was prepared, which is Ex.Ka-12. He has proved the G.Ds. Exhibit (ka-13 and 14) which were related to the appellant. 18. PW-8 is S.I. Pankaj Pokhriyal who stated that on 18.06.2013 appellant (Manoj Rathore) was arrested at 13:25 hours near Railway Station Doiwala. Accordingly, arrested memo and information memo were prepared on the spot, which are Ex.Ka-20 and Ka-21. He has proved the G.Ds. Exhibit (ka-13 and 14) which were related to the appellant. 18. PW-8 is S.I. Pankaj Pokhriyal who stated that on 18.06.2013 appellant (Manoj Rathore) was arrested at 13:25 hours near Railway Station Doiwala. Accordingly, arrested memo and information memo were prepared on the spot, which are Ex.Ka-20 and Ka-21. Appellant was interrogated by the police and the appellant himself got recovered the scissors used in the crime besides his clothes, t-shirt and the lower, which he was wearing at the time of crime; those items were recovered from his He also explained about the investigation conducted by him from time to time on different dates which are mentioned in case diary. 19. PW-9, R. S. Aswal stated that on 15.07.2013 he was posted as SHO Rishikesh. He saw the case diary prepared by the previous I.O. and accordingly on 27.07.2013, he recorded the statements of witness (Randheer Singh Rathore). After completion of the investigation, he submitted the charge-sheet Ex.ka-24. 20. There are three eye-witnesses, namely PW-2 Kumari Sheetal, PW-4 Babita and PW-10 Himanshu. PW2 Sheetal clearly stated that appellant Manoj Rathore is the son of her Uncle (Tau ji) Shri Charan Singh Rathore, whose house is situated near by her house. Appellant Manoj Rathore was earlier posted in the Army and thereafter he left his job and used to reside at home. He was unmarried. There were some injuries on the leg of Aunt (Taayi jee). At the time of incident both aunt and uncle were at the hospital while she was at her house. On hearing noise, she came out of her house and saw that appellant Manoj Rathore was pooled with blood and was going out from his old house after coming out from his new house. Thereafter, he changed his clothes and ran away towards the field. When she reached at the spot Himanshu (elder son of deceased Suman) disclosed her that the appellant inflicted injuries on deceased Suman. She further stated that she peeped from outside that Suman (the deceased) was lying on the floor with pool of blood. Thereafter, she informed Pravesh Kumar (brother of the deceased) through Satender. 21. When she reached at the spot Himanshu (elder son of deceased Suman) disclosed her that the appellant inflicted injuries on deceased Suman. She further stated that she peeped from outside that Suman (the deceased) was lying on the floor with pool of blood. Thereafter, she informed Pravesh Kumar (brother of the deceased) through Satender. 21. From a perusal of statement of above witness PW-2 Kumari Sheetal, it is clear that on the fateful day she heard hue and cry and accordingly, she came out and saw that the appellant Manoj Rathore was coming out of his house and going to his old house. He saw that the appellant was stained with blood. Thereafter, he changed his clothes and ran away towards the field. 22. PW-4 Babita is also the material witness, who is the family member of the appellant. She stated in her statement that when she was washing her hands on 15.06.2013 at about 4:00 pm, she saw that appellant Manoj Rathore came out of his house; his hands and clothes were pooled with blood and thereafter he ran away towards water tank where he washed his hands and clothes, and also took out weapon (Paatal) from the tin. She also stated that at the time of incident, Himanshu (son of the deceased) was present at the house where the incident took place. 23. From a perusal of the statement of PW-4 Babita, it appears that she saw the appellant coming out from the room where the incident took place and she clearly stated that at the time of incident, Himanshu (son of the deceased) was very much present at the spot. 24. The prosecution produced Himanshu (son of deceased Suman) as PW-10 who was 11 years old at the time of incident. He clearly stated before the witnessbox that on 15.06.2013 at about 3:00 to 4:00 pm, his mother Suman was doing stitching work in the house. His mother was alone as his grand-mother got a fracture on her leg and due to this, his grandfather, grandmother and his father had gone to Dehradun. He was playing with his friends outside, while his uncle (appellant Manoj Rathore) was watching television, and thereafter the appellant went into the room of his mother and closed the door. After starting the rain, present witness Himanshu came inside and saw that his mother was crying bachao-bachao. He was playing with his friends outside, while his uncle (appellant Manoj Rathore) was watching television, and thereafter the appellant went into the room of his mother and closed the door. After starting the rain, present witness Himanshu came inside and saw that his mother was crying bachao-bachao. He peeped from the hole of the door as the door was closed from inside. Then he went towards window and saw that the appellant was inflicting injuries on his mother Suman (deceased) with scissors. Then he went to the house of his younger grand-father and thereafter he saw that the appellant was coming out of the room of his mother Suman and there were blood stains in the hands, feet and clothes of appellant. He further stated that when his father reached home, he disclosed everything to him. 25. From a perusal of the evidence, it is clear that PW-2 Kumari Sheetal was residing few steps away from the house of the deceased Suman while PW-4 Babita is the sister-in-law (Jethani) of deceased Suman. Although she is a close relative of the deceased but she is also a relative of the appellant, who is the brother-in-law of the deceased. Accordingly, we cannot say that she is an interested witness in any manner. From a perusal of her statement, it is clear that she is a natural witness. According to her, on 15.06.2013, she was coming from the field, when she was washing her hands at the water tap, she saw that the appellant Manoj Rathore came out from the house. At that time, his clothes and hands were stained with blood. Thereafter, the appellant went towards the water tank and washed his hand and clothes. 26. On a careful examination of the evidence of PW2 Kumari Sheetal and PW4 Babita, we do not find any contradiction in their statements. 27. PW-10 Himanshu is the main star witness, who is the son of the deceased Suman and was about 11 and a half years old at the time of incident. He was playing outside the house with children. Due to start of rain, he came back to his house and reached at veranda. He noticed that his mother Suman was crying inside the house (bachao-bachao). He saw the appellant Manoj Rathore inflicting injuries on his mother Suman. 28. The appellant was arrested on 18.06.2013 near Railway Station, Doiwala, District Dehradun. He was playing outside the house with children. Due to start of rain, he came back to his house and reached at veranda. He noticed that his mother Suman was crying inside the house (bachao-bachao). He saw the appellant Manoj Rathore inflicting injuries on his mother Suman. 28. The appellant was arrested on 18.06.2013 near Railway Station, Doiwala, District Dehradun. His statement was recorded. He confessed his guilt before the Police Authority. On his pointing out, the scissors, used in the crime, was got recovered. He also handed over his t-shirt and lower to the police, which he wore at the time of commission of crime. The abovementioned weapon and clothes were sent for FSL testing. As per the forensic report dated 20.07.2013, there were blood stains found on the scissors and clothes of the appellant. 29. As regards the statement of PW-10 Himanshu is concerned, the Hon’ble Apex Court in the case of Dattu Ramrao Sakhare vs. State of Maharashtra reported in (1997) 5 SCC 341 has held that:- “5. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.” 30. From the above ratio, it is clear that the evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. 31. In the present matter, although at the time of incident the age of PW-10 Himanshu was below 12 years but at the time of recording the statement, he was about 13 years old. 31. In the present matter, although at the time of incident the age of PW-10 Himanshu was below 12 years but at the time of recording the statement, he was about 13 years old. Before recording his statement, the trial Court asked him questions and after analyzing carefully found him mentally sound enough to give statement. Accordingly, thereafter, the trial Court recorded the statement of this witness. From the statement of PW10 Himanshu, it is clear that he saw the entire incident through window of the room where the appellant committed murder of Suman. He was very much aware about the identity of the appellant because the appellant was his uncle, while the deceased was his own mother. 32. As regards the recovery of weapon on the disclosure statement of the appellant is concerned, the Hon’ble Apex Court in Anter Singh vs. State of Rajasthan reported in (2004) 10 SCC 657 , after analyzing the earlier decisions has summed up various requirements of Section 27 of the Evidence Act as follows: - A. “The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. B. The fact must have been discovered. C. The discovery must have been in consequence of some information received from the accused and not by accused's own act. D. The person giving the information must be accused of any offence. E. He must be in the custody of a police officer. F. The discovery of a fact in consequence of information received from an accused in custody must be deposed to. G. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” 33. In Madhu vs. State of Kerala, (2012) 2 SCC 399 , the Hon’ble Supreme Court held that the rationale behind Section 27 of the Indian Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of the facts itself, therefore, substantiates the truth of the confessional statement. The discovery of the facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a Court must endeavour to search, Section 27 of the Act has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act. 34. In the instant matter, the recovery of the scissors was made, when the appellant was in custody, has been established. The above recovery is founded on the statements of the disclosure. On a studied scrutiny of the evidence produced by the prosecution before the trial Court regarding the recovery of scissors, we do not find anything that this recovery has really not been made on the information of the appellant, or that it has been planted by the police. 35. The incident occurred on 15.06.2013. On the very same day, PW1 Pravesh Kumar, brother of the deceased Suman, submitted information with P.S. Rishikesh. PW2 Km. Sheetal and PW4 Babita saw the appellant on the very fateful day coming out from the house where the dead body of Suman was found. Not only this, they saw that after coming out from the room, the appellant washed his hands and clothes near the water tank. The prosecution case is further corroborated by the recovery of the weapon used in the crime. As regards to the report of FSL Dehradun dated 20.07.2013 is concerned, blood was found in item nos. 1 to 11 while it was disintegrated on item nos.8 to 11. 36. The Hon’ble Apex Court in R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266 held in paragraph no.31 that:- “A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance” 37. In the present matter it is proved that the behavior of the appellant was abnormal against the deceased. The prosecution’s case is based on the direct evidence. We find that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood, the accused cannot be convicted, for it is only because of the lapse of time that the blood could not be classified successfully. Therefore, no advantage can be conferred upon the appellant to enable him to claim any benefit, and the report of disintegration of blood cannot be termed as a missing link. 38. From a re-assessment of the entire evidence, following points do emerge: a) On 15.06.2013, the deceased Suman was doing stitching work at the room and the appellant Manoj Rathore entered into her room and closed the door. b) PW10 Himanshu, who is the son of deceased, heard noise of her mother and saw from the window that the appellant was inflicting injuries by scissors on Suman at the room. c) On 15.06.2013, when the appellant was coming out from the room of the deceased Suman, there were blood stains on his hands and clothes. d) After coming out of the room, he reached near the water tank where he washed his hands and clothes. e) When the appellant was coming from inside the room of the deceased, PW2 Kumari Sheetal and PW4 Babita saw the appellant from a very close range. f) From the disclosure statement of the appellant, scissors was recovered from his pointing out. g) The scissors which was used in the crime and the clothes the appellant wore at the time of committing the offence, were sent for FSL testing in which blood stains were found. h) The behavior of appellant was un-cordial towards the deceased. i) There is no delay in lodging the FIR. j) The appellant fled away from the place of incident and was arrested on 18.06.2013 near the Railway Station Doiwala, District Dehradun. h) The behavior of appellant was un-cordial towards the deceased. i) There is no delay in lodging the FIR. j) The appellant fled away from the place of incident and was arrested on 18.06.2013 near the Railway Station Doiwala, District Dehradun. k) The injuries caused by the appellant are supported by the post-mortem report. 39. For the aforesaid reasons, as analyzed above, we do not find any sufficient ground to interfere with the impugned judgment and order passed by the trial Court convicting the appellant under Section 302 IPC. The trial Court has given detailed reasons after discussing the entire evidence on record before coming to the conclusion that the appellant was found guilty of the offence. We are in complete agreement with the finding recorded by the trial Court that the charge of offence u/s 302 IPC is fully proved against the appellant. 40. Accordingly, we do not find any infirmity or perversity in the impugned findings recorded by the Trial Court. 41. The appeal sans merit and the same is, accordingly, dismissed affirming the judgment and order under challenge. The appellant is already in jail. He shall serve out the sentence so awarded to him by the Trial Court. 42. Since the appellant is languishing in jail, let he be informed about the result of appeal preferred by him through the concerned Jailor. 43. Registry is directed to send a copy of this judgment and order along with the LCR to the Court concerned for compliance.