Partly allowed

State of Rajasthan v. Anil Kumar and Ors.

Rajasthan HC18 Sept 2018CRLA/592/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed the criminal appeals filed by four accused individuals convicted of murder and conspiracy. The court held that evidence from interested witnesses, extra-judicial confessions, and recovery of blood-stained weapons established a definitive chain of circumstances. Additionally, the court enhanced the sentence for conspiracy to run concurrently with the life sente

What did the court decide?

Criminal appeals dismissed; sentence for conspiracy enhanced to life imprisonment with a fine; applications for suspension of sentence dismissed.

State of Rajasthan Vs Anil Kumar and Ors. — Murder and Culpable Homicide | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. CRIMINAL APPEAL NO.506/2017

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Smt. Manisha W/o Shri Rakesh Gurjar aged about 27 years, R/o Dhani Bandha tan Mavanda Khurd, Police Station Sadar Neem Ka Thana, District Sikar(Raj.)

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(Accused is presently confined in judicial custody since 20.06.2013 in Dist. Jail-Sikar.)

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----Accused-Appellant

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Versus

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State of Rajasthan through P.P.

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-----Respondent

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Connected with

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D.B. CRIMINAL APPEAL NO.530/2017

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Anil Kumar S/o Shri Ramotar Gurjar age about 25 years, R/o Dhani Bandha tan Mavanda Khurd, Police Station-Sadar Neem Ka Thana, District-Sikar (Raj.)

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(Accused is presently confined in judicial custody since 20.06.2013 in Sub-Jail-Neema Ka Thana, Sikar.)

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---Accused-Appellant

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Versus

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State of Rajasthan through P.P.

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---Respondent

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D.B. CRIMINAL APPEAL NO.531/2017

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Pawan Kumar S/o Shri Hariram Balai aged about 24 years, R/o Dhani Bandha tan Mavanda Khurd, Police Station-Sadar Neem Ka Thana, District-Sikar (Raj.)

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Balvant Alias Babar S/o Shri Nagar Mal aged about 23 years, R/o Dhani Bandha tan Mavanda Khurd, Police Station-Sadar Neem Ka Thana, District-Sikar (Raj.)

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(Accused are presently confined in judicial custody since 20.06.2013 in Sub-Jail-Neem Ka Thana, Sikar.)

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----Accused-Appellants

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Versus

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State of Rajasthan through P.P.

----Respondent

(2 of 14)

[CRLA-506/2017]

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For Appellant(s) : Mr Manoj Avasthi For Respondent(s) : Mrs Sonia Shandilya, PP Mr Mahendra Goyal – for complainant

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

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Judgment

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18/09/2018

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These criminal appeals have been filed against the order dated 17.1.2017 passed by Additional Session Judge, Neemkathana, Sikar in Sessions Case No.40/2013, whereby, all the accused appellants have been convicted for offence under section 302 and 120B IPC and sentenced to life imprisonment and fine of Rs.5000/-, in default to pay fine, to further undergo six months simple imprisonment for the offence under section 302 IPC and five years simple imprisonment and fine of Rs.2000/-, in

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(3 of 14)

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[CRLA-506/2017]

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default to pay fine, to further undergo two months simple imprisonment for the offence under section 120B IPC. Both the sentences have been ordered to run concurrently.

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FACTS OF THE CASE

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An FIR was registered with the Police Station – Sadar, Neemkathana, Sikar for offence under section 302 and 120B IPC. The report for it was made by complainant Jaimal Rawat (PW-7) vide Ex.P.13. It was stated that while he was sleeping at his residence on 20.6.2013, at around 5.00 AM, Om Prakash Gurjar informed him that Rakesh is lying dead on the road side. He along with Hoshiar went on the spot and found that deceased Rakesh, employed in Police Department, was lying dead. He was having head injury and injuries on other parts of the body.

¶46

On the information aforesaid, FIR No.216/2013 was registered for offence under section 302 IPC. After investigation, police filed charge sheet for offence under sections 302 and 120B IPC against all the accused appellants. After framing of charges for the offence under sections 302 and 120B IPC, accused appellants did not plead guilty and claimed trial.

¶47

The prosecution produced 29 witnesses and exhibited 54 documents in evidence, whereas, statements of accused appellants were recorded under section 313 CrPC. In defence, accused appellant Smt Manisha recorded her statement as DW-1 and exhibited police statements of Chhoturam, Jaimal, Hoshiar

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(4 of 14)

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[CRLA-506/2017]

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Singh, Maya Devi, Ashok Kumar, Sunahari, Data Ram, Nirmala Devi and Naresh Kumar as Ex.D-1 to D-9 respectively.

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Learned trial court marshalled the evidence and came to the conclusion that prosecution could prove its case beyond doubt against the accused appellants thus they were convicted and sentenced for offence under section 302 and 120B IPC. While life imprisonment has been given for offence under section 302 IPC, five years simple imprisonment has been awarded to the accused appellants for offence under section 120B IPC.

¶52

Against the sentence for offence under section 120B IPC, an appeal has been preferred by the State Government mainly on the ground that once punishment for offence under section 302 IPC is for life, punishment lesser than that could not have been awarded for offence under section 120B IPC. In view of the above, appeal of the State Government has also been heard along with the appeals preferred by the accused appellants.

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ARGUMENTS ON BEHALF OF THE ACCUSED APPELLANTS

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Learned counsel submits that accused appellants have been falsely implicated in this case. It is coming out from the fact that FIR was lodged without naming anyone. The names of the accused appellants were given with an after thought at the time of a detailed report in the evening of the day of occurrence. The disclosure of the names of the accused later on was based on presumption, otherwise, their names would have been given in the FIR itself.

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(5 of 14)

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[CRLA-506/2017]

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It is further stated that conviction of the accused appellants is based on the statement of the interested witnesses before whom accused appellants said to have made extra judicial confession. The trial court failed to make scrutiny of interested witnesses. It has even failed to consider as to whether accused were in the state of mind to make a confessional statement before others. In view of the above, trial court should not have believed the testimony of the witnesses for extra judicial confession.

¶58

In the similar manner, trial court could not have relied on the recovery of motorcycle and articles, which include weapons used for causing the occurrence. It is due to contradiction in the statement of the witnesses for recovery. The order of the trial court is without making scrutiny of the statements of PW-6-Jairam and PW-9-Ramjilal, the witnesses to the recovery. PW-6-Jairam disclosed different place from where the weapon is said to have been recovered than given by PW-9Ramjilal. The contradiction in the statements should have been to the benefit of the accused appellants.

¶59

Same way, trial court failed to consider that accused Smt Manisha, wife of the deceased Rakesh, could not have made confessional statement in the presence of two witnesses namely PW-14-Sunhari and PW-18-Nirmala Devi in regard to illicit relations and also commission of offence at her instance. DW-1Smt Manisha, accused appellant, had otherwise made statement clarifying that she did not make confessional statement before PW-14-Sunhari and PW-18-Nirmala Devi.

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(6 of 14)

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[CRLA-506/2017]

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It is also stated that no evidence was produced by the prosecution to show illicit relations between accused Anil Kumar with another accused Smt Manisha, wife of deceased Rakesh. The allegation of illicit relations between the two was also made by the interested witnesses, whereas, prosecution could have produced independent witnesses to prove the aforesaid. In the background aforesaid, prosecution could lead evidence only through interested persons and not by independent persons. Accordingly, if scrutiny of the case could have been made by the trial court properly, an order of conviction would not have been passed.

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It is lastly stated that even if FSL report is looked into, articles recovered from the accused appellants were found to have human blood but blood group has not been disclosed therein. At one place, blood group on shirt is shown to be B+, whereas, blood group of the deceased was A+. It is not matching to the blood group on the shirt. Otherwise, blood group of the deceased was not taken during the course of investigation.

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Taking the case in totality, case of acquittal is made out. To support the argument, learned counsel has made reference of the judgment of the Apex Court in the case of “Sharad Biridhichand Sarda versus State of Maharashta”, AIR 1984 SC 1622, wherein, it has been held that evidence of interested witnesses should be examined with great care and caution. Interested witnesses keep tendency to exaggerate or add the facts. It is further held that in case of circumstantial evidence,

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(7 of 14)

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onus is on the prosecution to prove the case by making out a chain of circumstances.

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In the instant case, prosecution failed to make a chain of circumstances to connect the appellants with the crime. The prayer is to allow the appeals preferred by the accused appellants and set aside the order passed by the trial court convicting and sentencing them.

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ARGUMENTS OF THE SIDE OPPOSITE

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Learned counsel for the complainant and learned PP have opposed the appeals. It is submitted that prosecution could prove its case beyond doubt. The trial court has relied on the statements of PW-12-Maya Devi, who is none else but cousin of accused appellant Anil Kumar. She was an independent witness. PW-11-Mukesh and PW-13-Ashok Kumar have also been relied. It is not only in reference to the last seen of the accused in a group but even for the confessional statement of the accused.

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The statements of PW-14-Sunhari and PW-18-Nirmala Devi have also been relied. Accused appellant-Smt Manisha made extra judicial confession about the crime in their presence. In view of the above, conviction of the accused persons is based on extra judicial confession also.

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Learned PP has further relied on other evidence which includes statement of PW-1-Chhoturam and PW-7-Jaimal. It has come that accused-Smt Manisha was having illicit relations with

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(8 of 14)

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[CRLA-506/2017]

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another accused-Anil Kumar and the occurrence took place because of their relations.

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The evidence of last seen of the accused together on a motorcycle has also come as otherwise they were having motive to cause the incidence. The weapons were recovered from them. There is no contradiction in the recovery memo, as alleged by the accused appellants. In fact, recovery memo has been signed by PW-6-Jairam and PW-9-Ramjilal in whose presence weapons were recovered. In view of the above, argument against the recovery memo may not be accepted.

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Referring to other material, which includes statement of PW-11-Mukesh apart from other witnesses, prayer is made to dismiss the appeals preferred by the accused appellants while accepting the appeal preferred by the State Government for enhancement of sentence for offence under section 120B IPC.

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It is also stated that accused appellants have been convicted not only based on the extra judicial confession but also recovery of blood stained weapons and clothes at their instance. It was sent for FSL report where human blood was found though blood group remain inconclusive other than on the shirt. It is, however, admitted that blood group of the deceased was not taken but finding no explanation to the recovery of blood stained clothes and weapon in the hands of the accused, trial court has rightly convicted them for the offence under section 302 and 120B IPC.

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(9 of 14)

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[CRLA-506/2017]

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The accused could not explain recovery of blood stained clothes and the weapons at their instance, that too, pursuant to section 27 of the Evidence Act. Learned counsel for appellants has shown contradiction in the statements of PW-6-Jairam and PW-9Ramjilal without taking note of the fact that both are the witnesses to the recovery memo and therein recovery of the blood stained articles was made by Tara Chand. It is true that Tara Chand has not been examined but recovery memo having been proved by PW-6-Jairam and PW-9-Ramjilal, there was no necessity to produce Tara Chand. Taking into consideration over all facts available on record, prosecution has proved the case against the appellants beyond doubt. The prayer is to dismiss the appeals preferred by the accused appellants.

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FINDING OF THE COURT

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We have heard learned counsel for the parties and perused the record.

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It is a case where on receipt of information of dead body of deceased Rakesh, PW-7-Jaimal and his brother went on the spot and lodged an FIR. The names of the accused were given in the evening of the day of the FIR. Non-disclosure of the names of the accused at the first instance cannot be said to be fatal in this case. It is for the reason that names of the accused came in the extra judicial confession of the accused Smt Manisha. Immediately thereupon, their names were given followed by investigation.

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(10 of 14)

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PW-12-Maya Devi stated about illicit relations between accused Manisha and another accused Anil Kumar. She is otherwise relative of accused Anil Kumar thus cannot be said to be interested witness.

¶88

PW-11-Mukesh has stated about extra judicial confession by the accused when they were seen at around 3.15 AM. Accused Balwant was having an iron pipe in his hand, whereas, accused-Pawan was having hockey in his hand. Accused Anil Kumar was having other accused Balwant and Pawan on his motorcycle. On asking, accused Anil Kumar threatened with dire consequences with the statement that they have already taken care of Rakesh (deceased) and the same treatment can be given to him.

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PW-13-Ashok Kumar is the witness who has also seen the accused in a group. It is stated by him that at around 3.303.45 AM on 20.6.2013, the accused were seen at Kalia Tibra. They were on motorcycle. On the back side of the motorcycle “Anil” was written in bold words. Out of three persons on the motorcycle, one was having iron pipe and another was having hockey. When he asked, they told that they are resident of Bandha Ki Dhani and used to come for running in the morning. While going ahead, he heard the noise of somebody. The aforesaid witness (PW-13) is relative of the deceased party but merely for that reason, his statement cannot be discarded unless he is shown to be making statement with exaggeration.

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(11 of 14)

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The other witnesses examined by the prosecution is PW-1-Chhoturam. He has given written report on 20.6.2013 itself. It was stated by him that accused Manisha and Anil Kumar were having illicit relations and, for that reason, they caused death of Rakesh (Manisha’s husband). The witness was not cross examined on the issues argued before this court so as to disbelieve the statement of PW-1.

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PW-7-Jaimal has made report (Ex.P.13). He has also made allegation about illicit relations between Manisha and Anil Kumar. PW-14-Sunhari and PW-18-Nirmala Devi have also stated about illicit relations between the two accused and, on the aforesaid, no cross examination has been made. Those witnesses have stated about extra judicial confession by the accused Manisha. They have even described the behaviour of Manisha when all the ladies were sitting with dead body of Rakesh. Accused Manisha was not weeping/crying while other ladies were doing so. Accused Manisha was carrying pregnancy of two months thus prayed to save her from the offence. The extra judicial confession has been given and merely for the reason that they are the relatives, it cannot be discarded.

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It is more so when there is other evidence to connect the accused with the crime. It is not only recovery of blood stained weapons but the clothes apart from motorcycle on which all the three accused were riding as per statement of PW-13 Ashok Kumar. The motorcycle was having name “Anil” on the backside as was seen by the witness thus it is another connecting evidence to make a chain of circumstances against the accused.

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(12 of 14)

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PW-18-Nirmala Devi has also stated about extra judicial confession by accused Smt Manisha. The examination of PW-6Jairam and PW-9-Ramjilal is to prove the recovery of the weapons. A small contradiction in the statements about place of recovery has been shown by learned counsel for accused appellants but we find that even as per the statement of Investigating Officer PW28-Gokul Singh, recovery was made at the instance of accused and it is even of blood stained clothes. It may be that the FSL report does not disclose the blood group on the weapons and the clothes but human blood was found on it. The accused have failed to explain recovery of the blood stained clothes at their instance while leading evidence in defence or by making proper cross examination of the witnesses produced by the prosecution thus goes against the accused appellants. In view of the above, it is not only that there exist extra judicial confession and motive but recovery of blood stained clothes and weapons also goes against the accused.

¶98

In the light of the facts given above, we have considered the judgment cited by learned counsel for the accused appellants. It is true that the statements of interested witnesses need to be examined with great care and caution, however, it cannot be that statement of such witnesses should be disbelieved even if it is corroborated by other witness/es. The confessional statement of the accused is not before one witness but before many witnesses which includes PW-13-Ashok Kumar, PW-14Sunhari and PW-18-Nirmala Devi.

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(13 of 14)

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Relying on the discussion made above and other evidence to support the case of the prosecution, we do not find any reason to cause interference in the order of conviction passed by the trial court. Hence, criminal appeals filed by the accused appellants are dismissed.

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APPEAL PREFERRED BY THE STATE GOVERNMENT

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The appeal preferred by the State Government needs consideration as the trial court, while passing the order of sentence for offence under section 120B IPC, failed to consider the sentence awarded for offence under section 302 IPC. In fact, when the offence under section 120B IPC is made out, sentence need to be seen as given for main offence i.e. for offence under section 302 IPC. Learned counsel for the accused appellants is fair to state that when life imprisonment has been awarded for offence under section 302 IPC, same sentence should have been awarded for offence under section 120B IPC. Accordingly, order of the trial court for the sentence for offence under section 120B IPC is modified while accepting the appeal preferred by the State Government.

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Accordingly, by modifying the order of sentence, accused appellants are awarded life imprisonment with fine of Rs.2000/-, in default to pay fine, to further undergo two months simple imprisonment for the offence under section 120B IPC. With the aforesaid, appeal preferred by the State Government stands disposed of.

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(14 of 14)

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In view of dismissal of the criminal appeals itself, applications for suspension of sentence also stand dismissed.

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A copy of this judgment be placed in each connected

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file.

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(DINESH CHANDRA SOMANI),J (M.N.BHANDARI),J