CRIMINAL APPEAL 852 of 2002 on 12 December 2001

J U D G M E N T

PRITHVI RAJ ALIAS PRITHVI NAIV/SThe State of Raj.

CRIMINAL APPEAL No. 852 of 2002

Date of Judgment

:31[st] March, 2009

PRESENTHON'BLE SHRI N.P.GUPTA,J.HON'BLE SHRI C M TOTLA,J.

Mr. KR BHATI, for the appellant.Mr. AR NIKUB, PP for the respondent.

BY THE COURT: (Per Hon'ble Gupta, J.)

By this appeal, the appellant seeks to challengethe judgment passed by the learned Addl. Sessions Judge(F.T.) Hanumangarh dt. 27.8.2002, convicting the appellantfor the offence under Section 302 and 201 IPC, andsentencing him for the offence under Section 302 IPC withimprisonment for life along with fine of Rs. 5000/-, indefault to undergo one month's simple imprisonment, and forthe offence under Section 201 IPC sentencing him to threeyears rigorous imprisonment, and a fine of Rs. 5000/-, indefault to undergo one month's simple imprisonment.

The necessary facts are, that on 12.12.2001 oneAsharfi Das lodged a written report Ex.P-1 at PoliceStation Hanumangarh Town, alleging interalia, that he is working as night watchman on the Service Station, onHanumangarh Town - Rawatsar Road, which is near villageKohla. With this he alleged, that in the night at about9.30 he was asleep in the room, in the back side of roomthere was a big noise. Thereupon he got up, and lookedoutside the window. He saw that one man, wearing whitePajama and black Kurta, coming from backside of the servicestation, was going towards the road. He saw backside of theman. The man was bare headed. Then, he lighted chimney andopened the gate, but he did not find the man. Then, he wentin the backside room, which does not have any doors, andfound, that one person was lying upside down, with leftKARVAT, and folded knees. He called to wake him up, butthere was no response. Then, he called the neighbouringhotelwala Bhoop Singh, and neighbouring Soap Factory owner,and saw, that the man was wearing white shirt, whitePajama, one Baniyan, printed underwear, and red coloursleeveless sweater. A blanket was lying on the feet, and hewas aged about 26 years, he looked like a labour. Wrist-watch was there on the left hand, and in the pocket of theshirt, there was a matchbox, Bidis, a tube of lime, whileright wrist was broken, and was bleeding. In the head also,towards right, there was a deep wound below the right eye,there was bleeding injury, and from the mouth also someblood was coming out, and there were numerous injuries onthe body. One pair of sleeper were lying a bit away fromthe dead body, something like one quarter of liquor wasalso visible there. From this he believed, that someunknown person has killed the man, and has put him in therear side room of the service station. Then, he went tolocality, and narrated the things to Ramchander Das, Mangal Das and Tileshwar Das. Out of them Ramchander Das andMangal Das remained there, and the informant with TileshwarDas submitted report.

On this report a case for the offence under Section 302 and 201 IPC was registered, and investigationwas conducted. After completing investigation, charge sheetwas filed against three persons, being Vimla Devi, hermother Savitri Devi, and the appellant, for the offencesunder Section 120B, 302 and 201 IPC, as it was concludedduring investigation, that the accused Vimla was havingillicit relations with the appellant, and on that count thethree accused conspired, and got the deceased Shankermurdered, who is the husband of accused Vimla.

The case was committed same day to the Court ofSessions Judge, Hanumangarh, from which it was transferredto the trial court. The trial court framed charges for theaforesaid three offences, against all the three accusedpersons, who obviously were denied by the accused. Duringtrial the prosecution examined 16 witnesses, and tenderedin evidence 57 documents. All the three accused denied thecharges, and claimed to have been falsely implicated. Indefence three witnesses were examined, roadways ticket, thepolice statement of Ramchander Soni, and the policestatement of Subhash Soni were tendered in evidence, asEx.D-1, Ex.D-2 and Ex.D-3 respectively. After so completingthe trial, hearing the arguments, the learned trial courtfound the appellant only guilty, against whom the offencewas brought home for offence under Section 302 and 201 IPC.However it was found, that there is no evidence on record to show, that any conspiracy was hatched between all thethree accused persons, in furtherance whereof offence mayhave been committed, and there is no evidence to show, thatwhen the appellant went outside the house with thedeceased, the other two accused persons also accompaniedthem, and there was no recovery of any incriminatingarticle from them, so as to connect them with the offence,and no charge of conspiracy under Section 120B is proved bythe prosecution against them. The learned trial court alsofound, that the prosecution has failed to prove chargeunder Section 302 and 201 IPC as well, against the accusedVimla Devi and Savitri Devi, while the learned trial courthas convicted and sentenced the appellant as above.

We have heard learned counsel for the appellant,and the learned Public Prosecutor, and have also gonethrough the record.

The present is a case, which rests only oncircumstantial evidence, as obviously there is no eyewitnesses, in the case. The circumstances relied upon bythe learned trial court are; (i), that the accused and thedeceased were last seen together, (ii), the othercircumstances relied upon is, that during investigation theaccused pointed out the place of incident, and pursuant tothe information furnished by him under Section 27 of theEvidence Act got recovered the weapon of offence, beingKassi etc., and the garments of the accused, Kassi, andthat of the deceased were found stained with human blood ofsame group-A. The third circumstance relied upon is motive.

Obviously, since the case rests on circumstantialevidence, we proceed to examine each of the circumstances,as to how, and to what extent each of them is proved, andwhat are consequences flowing therefrom.

The first circumstance in this regard is, thedeceased having been last seen together in the company ofthe accused. Before dealing with this circumstance, we maynarrate here, that the deceased was resident of BhuranpuraPolice Station Tibi. We get it from the statements of P.W.12 Ramchander, P.W. 15 Sharvan, and P.W. 16 Jagdish;inasmuch as P.W. 12 has deposed that the deceased was hismother's sister's son, and was living in Bhuranpura, whowas married in Ganeshgarh, with the accused Vimla Devi.Similarly P.W. 15 Sharvan has stated that the deceased washis sister in law's son, and was living in Bhuranpura, andwas married in Ganeshgarh. Similarly P.W. 16 Jagdish is thereal brother of the deceased, who has deposed that theywere five brothers, and they are living in Bhuranpura,while Shanker was married in Ganeshgarh. The accused isresident of yet another village Jorkiya Tehsil Padampur.

The deceased and the accused Vimla had a sonBhimsen aged 9 years, and a still younger daughter from thewedlock. The son is the only witness of last seen. He wasexamined as P.W. 5. Of course, the prosecution got himdeclared hostile, but then, we venture to look at hisevidence. He has given out his age to be 11 years. He wasput preliminary questions by the learned trial court, likegames, books, cricket team etc., and found that the witnessunderstands everything well. Then his statements were recorded. He has deposed, that he knows Prithvi Nai(appellant) who was visiting their house. He is a residentof Jorkiya. The maternal grand father of the witness isChetram, who lives at Ganeshgarh, his maternal grand motheris Savitri, while his mother is Vimla. Then, he deposedthat Prithvi does not do any work, he took the witness forgetting him employed on a restaurant, but the witness didnot stay on the hotel. Then, the accused brought thewitness to his own house, and then left the witness at thematernal grand father's house of the witness. Then, thewitness deposed, that the deceased had also come toGaneshgarh on the fateful day, then the accused asked hisfather to accompany outside, whereupon father of thewitness went with him, and thereafter he does not know asto whether Prithvi returned, or not. Then, he stated thathis father did not return. That is all he knows. Heidentified all the accused present in the Court, anddeposed, that his father had taken meals at the house ofhis maternal grand mother, and his maternal grand motherdid not tell him anything, and that his father is no more.At this stage the witness was got declared hostile by theprosecution. Then, he was confronted with the portion A toB, and C to D of his police statement Ex.P-21, and it wasgiven out, that he did not give that statement. Headmitted, that outside his house there is a shop oftelephone, where accused had gone to make a telephone call.It was stated that the accused Prithvi did not give anymoney for bringing anything, then the witness was asked,that his mother mostly lived with his maternal grandmother, whereupon witness kept silent. Then, he was askedabout deceased consuming alcohol, whereupon also the

witness kept silent. Then, he stated that he has one sisterwho lives in Bhuranpura. Then, he was asked that hismaternal grand mother gave money to the accused Prithvi,whereupon also the accused kept silent. Then, he statedthat elder brother of his father is Pusalal, who lives inRatanpura, Ramchander lives in Kishanpura, and he does notknow as to whether Ramchander had come to Ganeshgarh. Hestated that there was no quarrel between his father and hismother, and his father did not use to give beating to themother. He has denied that he is giving false statement.Then, we may refer to his police statement Ex.P-21 also,with which he was confronted, to find out, as to whatimprovement he is making, and portion A to B thereof is;“म र न न व म र म न प थव क क ठ म ब ठ रख थ और कह आज श कर क द खल ज उस क र द क ट द and the portion C to D is “प थव न ई म र न न Thusक घर स म र न न व म स प#स ल कर गय । रपय ककतन ददय म+झ पत नह it appears, that the witness has disowned the portion ofthe statement, which are related to involvement of hismaternal grand mother. Obviously, learned trial court hasalready acquitted the maternal grand mother, being theaccused Savitri Devi. The other part of the statement ofEx.P-21 with which he was not confronted, we are notsupposed to see, and therefore, we decline to see. Thus thefact remains, that of course the witness has been declaredhostile, but he has been got declared hostile because hedid not support the earlier version of involvement ofSavitri Devi, but then, so far as his intrinsic evidence,about accused having been last seen in the company of thedeceased together, that has not been shaken at all, in anymanner, whatever, by the defence.

The intrinsic evidence of this witness P.W. 5 doesfind support from the other circumstances, and evidencealso, comprising of P.W. 15 Sharvan, P.W. 10 Ramkumar, P.W.14 Om Prakash, and P.W. 11 Amilal, so also from Ex. P-33, &Ex.P-34. According to P.W. 15 Sharvan, the deceased hadcome to him before two days of the incident, and demandedmoney for fare for bus journey, as the deceased wanted togo to his in laws' place. The witness paid money to him,and the deceased told, that he would please the wife andbring her, and that she is carrying illicit relations withthe accused appellant Prithvi. Then, he learnt from Krishanthat the deceased is dead. Thereupon he went on the spotwhere he did not find, and then he went to hospital, andfound the deceased lying in mortuary. Then, P.W. 10 RamKumar has deposed, that on 10.12.2001, from 8 A.M. to 5P.M., he was booking clerk, and on duty at Booking Window,Hanumangarh Town. On that day at 2.30 P.M. Bus No.95 hadgone towards Kenchiya. Driver whereof was Virendra Singh,and conductor was Om Prakash. Four tickets were issued forKenchia, being ticket no. 002491 to 002494, for whichnecessary entry was made in D.S.A., copy whereof was givento the conductor. He has proved that tickets Ex.P-33 wasissued by him for Kenchia, entry in which regard is made inD.S.A., being Ex.P-34, which bears his signature. Thiswitness has not been cross-examined at all. Then, P.W. 14Om Prakash is conductor of said bus, and has deposed, thatalong with him the driver was Binder Singh. The bus wasscheduled to go from Hanumangarh to Karanpur via Kenchi,Goluwala, Padampur, and at 2.30 the bus left Hanumangarh.The Booking Clerk was Ram Kumar. Smaller D.S.A. wasprepared, and bus was seen off. According to D.S.A., four

passengers had gone towards Kenchiya, all of them werecarrying tickets. He has also deposed, that passengerpossessing ticket from 002492 was in his bus, and alightedat Kenchiya. He has proved the ticket Ex.P-33, and D.S.A.Ex.P-34, and has proved entry made therein. In cross-examination he has stated, that he was not shown the photosof the passengers, and does not know who was travelling onthis ticket no. 002492. Then we may refer to Ex.P-8, whichshows, that in the pocket of Baniyan, on some white paperaddress of some Baba was written, one roadways ticket no.521096112, one slip Rawatsar bill no. 311777 was written,one slip whereon Bhuranpura 84509 was written, then oneticket of Aman Travels, and one slip on which 682122 waswritten, and one ticket of roadways for journey fromHanumangarh to Kenchiya bearing ticket no. 002492 werefound, which were seized by the police. This memo has beenproved by Investigating Officer, P.W. 11 Ami Lal, who hasproved his signatures thereon, as E to F. Then, from out ofthe Motbirs, Tileshwar Das and Subhash have been producedas P.W. 2 and 3 respectively, who have proved theirsignatures A to B and C to D respectively thereon. Thus,this evidence does clearly establish, chain of events, andfacts, showing, that on 10.12.2001 the deceased had gone toGaneshgarh, and on 11[th] in the night, he was found dead.Thus, the evidence of P.W. 5 stands fully corroborated, andthe circumstance being, the deceased having been last seenin the company of the deceased, soon before the incident,is clearly established.

We may also observe at this place, that all saidand done, accused Vimla is also his mother, and may be, that he might be saving his maternal grand mother, butthen, there is no reason whatever to disbelieve thisevidence so far as it implicate the accused appellant, byproving, that the deceased was last seen in the company ofthe accused. Obviously, this is an incriminatingcircumstance. A look at the statement of the accusedrecorded under Section 313 shows, that he has statedtherein that he does not know Bhimsen, and Bhimsen istelling a lie. Thus, the circumstance has not beensatisfactorily explained by the accused either.

Coming to the next circumstances, which is ratherbundle of circumstances, formulated by the learned trialcourt, which can be broken up by us, as, being (i) theaccused identifying the place of incident (ii) accusedvoluntarily giving information under Section 27 of theEvidence Act, and pursuant thereto getting recovered theweapon of offence, and (iii) the clothes of the accused andthe weapon of offence were found stained with human blood.

Taking the first circumstance about the accusedidentifying the place of incident, we find, that theaccused was arrested on 17.12.2001, and the arrest memo Ex.P-24 is dt. 17.12.2001, and information recorded underSection 27 Evidence Act is Ex.P-38, which has been provedby the I.O. P.W. 11 Ami Lal, who has proved his signaturesC to D, and the signature of the accused being E to F, andthe fact disclosed being A to B, and the look at thatportion A to B shows, that he is prepared to show theplace, where he had put the dead body. Then, Ex.P-39 is thesite plan of the place identified by the accused. Site

Inspection Note is Ex.P-39A. According to which, he hadshown place A, to be the place, where the murder wascommitted, and the place B, to be the place, where he hadplaced the dead body, and left away. According to Ex.P-39A,at place A, many people had defecated, and fickle matter islying, many persons had passed through, then by removingthe top soil, blood stained soil was shown, which wasseized vide memo Ex.P-50. This circumstance cannot berelied upon as an incriminating circumstance, inasmuch asthe dead body was already noticed by Asharfi Das, beforelodging the report, and therefore, there was nothing to bediscovered again, as a fact discovered consequent uponinformation given by the accused. So far as the purportedidentification of place, being point A, where the deceasedis said to have murdered is concerned, apart from the fact,that we have our own doubt, as to whether that wouldconstitute an incriminating circumstance, or not, in thepresent case, as, in that regard there is no information atall given by the appellant under section 27 Evidence Act,therefore, this circumstance is simply required to beignored. Then, the second circumstance, is the recovery ofweapon of offence. In this regard the information memo isEx.P-41. This is dated 19.12.2001 at 4.10 P.M., informingthat he has concealed the Kassi, under the bushes near theplace of incident itself. This memo has been proved by P.W.11 Ami Lal, who has proved his signatures C to D, andsignature of the accused E to F, and the admissible portionof the information being A to B. The memo about therecovery, affected pursuant thereto is Ex.P-42. The Kassiwas seized, and it was found to be stained with blood,having sharp edges, and the width of it was 9 1/2”, the length being 9 3/4”. It is having handle of 3 ft. Thehandle is having fresh crack, at the place where it joinsKassi. This memo has also been proved by I.O. P.W. 11 AmiLal, who has proved his signatures A to B, and has provedthe signatures of the accused C to D, while the MotbirsRamchander and Subhash being P.W. 12 and P.W.3, have provedthis memo, who have proved their respective signatures,being E to F and G to H. Their evidence has not beenshattered in cross-examination at all. Then, a look atEx.P-48, the F.S.L. Report shows, that this Kassi has beenfound stained with human blood of B-Group. Necessarylinking evidence about the seals of Kassi remained intactfrom the time of seizure till it reached the ForensicScience Laboratory is very much there, and is un-shatteredwhich we need not catalogue in greater detail. We maysimply catalogue evidence in this regard, being P.W. 13 RamPratap, P.W. 7 Shambhu Dayal, P.W. 8 Balwant Ram, P.W.9Sher Mohd. and P.W. 11. Ami Lal, apart from the documentaryevidence produced in this regard, being Ex.P-24, Ex.P-25,Ex.P-26, Ex.P-27, Ex.P-28, Ex.P-29, Ex.P-30, Ex.P-31, andEx.P-32. Thus, in our view, this circumstance is clearlyestablished. Obviously, with regard to this circumstance,the entire evidence has been put to the accused in hisstatement under Section 313, and he has adopted the standof denial only, or has stated ignorance. Thus, it is notexplained, as to how the blood of the same group, as thatof the deceased, happened to come on Kassi, which wasrecovered on the information, and at the instance of theaccused, soon after his arrest.

Then, coming to the third circumstance viz.

Then, coming to the third circumstance viz.

garments of the accused were found to be stained with bloodof human origin, of same group-A. In this regard thematerial comprises of information memo Ex.P-44. This isdated 20.12.2001 at 9.15 A.M., to the effect, that he hasconcealed his wearing apparels in the Kohla Farm, which heis prepared to get recovered. Then, pursuant to thisinformation, recovery has been effected vide Ex.P-45. Froma look at Ex.P-45 it shows, that the accused excavated onefeet deep pit, and took out a plastic bag, which containedone white shirt, one white pant of terry-cot, one blackjacket. On the front side of this jacket, there were bloodstains, and on the backside also some stains were visible,but on account of dark colour of jacket, they could not beproperly deciphered, then on the white shirt there wasblood on both sides of collar. Then, the pant was havingblood stains on both the legs, in front side, as well asback side. These articles were duly seized, and sealed. Thememo Ex.P-44 has been proved by P.W. 11 Ami Lal, who hasproved his signatures C to D, and that of the accused beingE to F, and information part A to B, and Ex.P-45 has beenproved by P.W.11 Ami Lal, P.W. 3 Subhash Chandra, P.W. 12Ram Chander, who have proved their signatures G to H and Eto F respectively. The Investigating Officer has alsoproved signatures of the accused being C to D. A look atEx.P-48 would show, that on all the three articles humanblood was found, and on shirt marked as item no. 11 humanblood of A Group was found. The evidence catalogued abovedoes also prove, that the prosecution has led sufficient,and reliable evidence, with regard to seals of thesearticles also remaining intact from the time of seizure,till their reaching the Forensic Science Laboratory. In the statement under Section 313 Cr.P.C., the accused has notoffered any explanation whatever, much less satisfactory,with regard to these circumstances either. Then, from Ex.P-7 it is clear, that the blood stained clothes of thedeceased were taken into possession by the police. Thismemo has been proved by Investigating Officer P.W. 11 AmiLal, P.W. 3 Subhash and P.W. 1 Asharfi Das, who has provedtheir respective signatures being A to B, C to D and thumbmark of Asharfi Das at point Y. Ex.P-48 shows, that on thegarments which were marked by Forensic Science Laboratoryas Ex. Nos. 3, 4, 5, 6, and 7, blood of human origin wasfound, and the Ex. Nos. 3, 4, and 6 being the shirt, Pajamaand the Baniyan of the deceased were found to be stainedwith blood of human origin, of A Group. Necessary linkingevidence about the seals of clothes remained intact fromthe time of seizure till it reached the Forensic ScienceLaboratory is very much there, and is un-shattered, whichwe need not again catalogue in greater detail. Obviously,with regard to this circumstance also, the entire evidencehas been put to the accused in his statement under Section313, and he has adopted the stand of denial only, or hasstated ignorance. Thus, it is not explained as to how theblood of the same group as that of the deceased happened tocome on clothes of the accused, which was recovered on theinformation, and at the instance of the accused, soon afterhis arrest. Thus, it is clear that this circumstance alsois clearly proved to be an incriminating circumstance, andhas been duly proved by the legally reliable evidenceproduced by the prosecution.

The third major circumstance, relied upon by the

The third major circumstance, relied upon by the learned trial court, is about motive, being that theaccused appellant was having illicit relations with theaccused Vimla. In this regard, the prosecution has producedthree witnesses P.W. 12 Ramchander, P.W. 15 Sharvan, andP.W. 16 Jagdish. A look at the statement of P.W. 12Ramchander shows, that he has deposed that the deceased washis mother's sister's son, who was living in Bhuranpura,and was married in Ganeshgarh, with Vimla some 10-12 yearsback, who has been identified to be present in the Court,and has stated that she was scarcely coming to the in-lawshouse. He has then stated that the relations of the couplebeing not cordial, Panchayat was convened, and at that timehe attended the same, as he went to attend some marriage inMeghwal community, and at that time he advanced goodcounselling to both of them. At that time when he went toGaneshgarh, the accused Prithvi Nai was siting in the houseof Vimla. The witness had admitted, that he had a talk withthe accused Prithvi, who gave out to be resident ofJorkiya. Then, further talks were exchanged, and it wasgiven out, that Hansraj Nai is married to the sister of themother of the accused, which Hansraj lives in the villageof the witness, and it was agreed, that whenever he wouldvisit, he would see the witness. He has then stated, thatShanker was physically beating Vimla. In cross-examinationhe has stated, that Panchayat was convened some 2-3 yearsback, wherein, from Kishanpura, apart from this witness,one Kaluram Nayak was there, and thereafter there was noPanchayat. He has also stated that after Panchayat he neverhappened to see deceased Shanker. He has stated, that thecouple was blessed with one son and one daughter, thedeceased was poppy husk addict, and sometimes he was earning something, sometimes not. Then, P.W. 15 has statedthat the deceased was his sister in law's son, who wasliving in Bhuranpura, and was married in Ganeshgarh. He hasstated, that since he was not on visiting terms he does notknow, that there was any lack of cordiality in the couple.However the deceased had given out, that she is carryingillicit relations with Prithvi, and that, the deceased willbring her by pleasing her. On this aspect of the matter,there is no cross-examination whatever, on the side of theaccused. Then, P.W. 16 is the brother of the deceased, andhas disowned the police statement Ex.P-57, which containsportions about illicit relations of the accused appellantwith Vimla. In our view, from the evidence of P.W. 15, whohas not been cross examined at all, on this aspect of theevidence, about existence of illicit relations between theaccused appellant, and the other accused Vimla, it isclearly established, that they were having illicitrelations. This part is fully corroborated by P.W. 12, andwe do not find any reason, not to believe this evidence.

In our view, thus this circumstance is also sufficiently established, by legally admissible andreliable evidence. Of course, this does furnish sufficientmotive for the accused to commit the offence.

Thus, all the above circumstances, excluding thecircumstance, of the accused pointing out the place, wherethe murder was committed, are established. In our furtherview, the circumstances so established, form a completechain, connecting the accused with the crime, in absence ofplausible explanation coming forward on the side of theaccused. In the evening of 10[th] the deceased had gone to Ganeshgarh, and was last seen in the company of theaccused, and in the night of 11[th] the dead body was found,and on 17[th] the accused was arrested, on whose information,soon thereafter the above mentioned recoveries are made.Thus, these circumstances do form a complete chainestablishing the guilt of the accused. At the same time, nohypothesis has been suggested on the side of the defence,which may be consistent with the innocence of the accused,nor, despite stressing our best, have we been able to findout any such hypothesis, which may be consistent with theinnocence of the accused.

Thus, we do not find any error on the part of thelearned trial court, in convicting and sentencing theaccused, as done by it.

The appeal thus has no force, and is dismissed.

( C M TOTLA ),J.

( N P GUPTA ),J.