1 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T TEJKARAN V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 235/2002, against the judgment dated 17.1.02 passed by Shri Om Prakash Singh, RHJS, Additional Sessions Judge (Fast Track), Rajsamand, in Sessions Case No.37/2001. DATE OF JUDGMENT March 29th, 2010. PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr.R.S.Chundawat, for Appellant (s). Mr.A.R.Nikub, PP, for the State. REPORTABLE. BY THE COURT: (PER HON'BLE TOTLA, J.) This appeal is directed against appellant's conviction for the offences of Sections 302/34 and 380/34 IPC and respective sentences awarded of life imprisonment with fine Rs.5,000/- and seven years rigorous imprisonment with fine Rs.5,000/-. Prosecution case as unfolded during investigation and trial is that Shri Rahul s/o. Pradhyuman Kumar PW 4, a nut-bolt trader at Jaipur, used to visit Kankroli and other places in relation to his business, who left Jaipur in evening of 27.1.2000 and reaching Kankroli (Rajnagar), stayed at Paras hotel room No.5 at first floor, who due to arrive back to Jaipur on 29th, but 2 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan did not reach so his father Shir Pradhyuman Kumar PW 4 inquired from related merchant and a trader PW 12 that Rahul on phone at about 10.00 a.m. told him of coming in afternoon, but did not and on telephone inquiries from hotel repeated information that room is locked so father being alarmed, did ask his acquaintee Shri Godika Superintendent of Police (Vigilance) and then S.P., Rajsamand informed police station at about 4.15 p.m., where SHO PW 30 Sunder Lal, making entry of non-availability of Rahul in roznamcha Ex.P50 proceeded to hotel, where found room locked and because of doubt, unscrewing bolts of the door, that room No.5 opened, where found that on a cot with mattresses (bister) over it, dead body of Rahul was with his mouth tightly tied by a muffler knotted at side and baniyan knotted at the back and both hands also tied behind by a nylon rope type string. SHO, informing higher officers, who too arrived, inspected room, where on a table by side of bed were two glass tumblers of tea, biscuit packets, water bottle etc. and in room also were scatterly lying tobacco pouch, cigarette pieces etc. and brief cases search like opened – on bed sheet spread blood and on muffler, baniyan etc. and on face at nostrils also blood. Meanwhile, at about 6.45 - 7.00 p.m. also, arrived from Jaipur father PW 4 who finding and observing as above, lodged the written report Ex.P5 to SHO who fowarded for and FIR Ex.P49 registered at PS. In this report, father PW 4 mentioned of stealing of 15 to 20 gm weighing golden chain of neck, wrist watch and some currency and also that lock on room is that of Rahul. SHO, preparing memos Exs. P1 to P3 of opening room, state of body and of room inspection, removing body for post- 3 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan mortem, sealed the room and also nearby rooms for inspection by scientific experts. On post-mortem by board in afternoon of 30.1.00 proved by doctor PW 27, report being Ex.P45, on person of Rahul found (i) face swollen and cynosed tips of nose around mouth and chin more darker then face, anterior aspect of both shoulder, neck and upper front of chest of dark bluish color on dissection was echymisis of subcutaneous tissues. (ii) depressed pressure mark (light colour) present on left side of face extending from lower part of angle of mouth to extending towards ear obliquely tepering width near angle of mouth 3 cm and at ear 2 cm, (iii) depressed pressure mark (light colour) on right side face about 5 cm x 2 cm Extending laterally from angle of mouth, (iv) depressed pressure mark about 2 cm wide encircling both the wrist joints. On dissection of (i), (ii) and (iii), there were white glieshening subcutaneous tissue. (iv) Bruise (contusion) 6 cm x ½ cm on submendibular region on right side upto angle of mendible dark color pressure mark on dissection subcutaneous Echymosis present – (v) some fluid at penis and faceal matter out from anus – death because of asphyxia due to smothering within last 36 to 72 hours, that is between forenoon to late evening of 28th. On 1.2.2000, senior scientific officer PW 25 and junior scientific officer, serologist PW 21 with a photographer arrived and sealed room opened and scientific officers examining place of occurrence and also room No.4 and other rooms, preparing spot visiting report Ex.P31 and 44, also photographed situation and articles, as above, in room No.5, including 4 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan some found hair, clothes of deceased, pieces of muffler, baniyan, five pieces of cigarette etc. which were seized. In room No.4, found was that stretching nylon plastic string of curtain of window, a piece was taken and remaining both ends hanging there – these both and also found empty beer bottles and other articles seized and sealed. In room No.7, was also a old piece of snatchingly torn hanging nylon rope which also collected and sealed. Found chance print developed and photographed. Collected articles were separately seized and sealed, preparing memos Ex.P9 & 10 the spot inspection reports ExP31 & P4. SHO PW 30, interrogating hotel employees, collected register of visitors preparing memo Ex.P7A and related entries found that in room No.4, staying since evening of 27th were three persons making entry in the name of Amar Chand. In course of interrogation, revealed was that three persons stayhing in room No.4 and also the deceased were in hotel in afternoon of the day and three persons staying in room No.4, did hurriedly left around 4 O'clock. In the course of investigation, Deputy Superintendent of Police PW 29, who also was Dy. S. P. for police station, Nathdwara, in the year, 1998, found that some what similar nature of incident, FIR No.302/98 (copy Ex.P51) also was registered at Nathdwara and taking lead, tried to trace one Ashok Kumar who could not be but his cousin Vinod Kumar interrogated and by taking further lead, with the help of photo, appellant and one other Navratan was arrested. Appellant Tejkaran arrested at Rajsamand and watch of his wrist was 5 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan found to be connected with the incident and of deceased – collected and sealed - subsequently in identification proceedings, same was identified by PW 4 to be of his son. Appellant and Navratan were arrested, photo Ex.P24 when shown found to hotel waiter Veni Ram and one Balkishan, was identified to be that of a person who stayed and made entry in the name of Amar Chand – memo prepared is Ex.P27. SHO PW 30 continuing investigation per disclosure Ex.P48 and at the instance of other arrested Navratan, from near a road crossing lying below a stone of a wall recovered a key (Ex.P13) said to be of lock of Rahul on room No.5 and took finger and palm impressions of appellant and also Navratan of which some before incharge jail, Rajsamand, where they were lodged. Articles intactly delivered with forwarding letter etc. at FSL and charge-sheet submitted against appellant and also Navratan. In course of trial, after examination of some witnesses, Navratan absconded and proceeded against under Section 299 Cr.P.C. Here, it is observed that incident and facts are not being examined – neither evidence is for the absconded or any other and wherever reference of Navratan and other appear, it is only in context of appreciating and evaluating evidence for appellant Tejkaran. Going through the adduced evidence following points stand established and need not be considered in detail :- Deceased Rahul Patni son of PW 4 – who often every month or two visit Rajsamand in relation to his business and stayed at this Paras Hotel – 6 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan also on 28.1.00 morning arrived there and stayed first floor room No.5 of the hotel. Entry of his staying in hotel is in register Art. 18. Deceased Rahul on that day, i.e. 28.1.2000 around 10.00 a.m. did call trader PW 12 of Rajnagar telling him of coming late afternoon after visiting near villate than he arrived at trader PW 15 in Railmagra and than shop of Kailash PW 19 at village Fatehgarh but did not and neither reached Jaipur, though seat was booked for night bus. Deceased not arriving Jaipur, his father PW 4 and brother PW 23 inquired from traders who reported as above and hotel personnels did report that room is locked since last evening, i.e. evening of 28th. Father PW 4, having got alarmed, did report to a police officer and SHO PW 30, at 4.15 P.M. making entry Ex.P50 in roznamcha, arrived at hotel. SHO PW 30, making preliminary inquiries, opened room No.5 at 5.15 P.M. by getting bolt unscrewed, preparing memo Ex.P1. In room, on a cot found heap like with blankets, rajai and bed sheets lying over it, below which was dead body with a and baniyan tightly tied around neck upto over mouth – both hands behind close tightly tied by a plastic string – SHO, preparing memo Ex.P2, describing that socks, shoes, baniyan, sweater, shirt were on deceased and different articles (a) two empty glass tumblers of tea, biscuit packet articles common for a traveller, (b) scatterly lying some cigarette butts, cigarette packet, match box and tobacco pouch etc., (c) half foldedly placed mattress, pillow etc. on other coat, (d) opened brief case on floor with calculator, papers, napkin 7 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan scattered on floor, (d) a piece of muffler and some papers and under garments on cot etc. found laying there as above and sealed room along with adjoining room. Meanwhile, by 6.30 – 6.45 p.m., father PW 4 who finding as above, lodged report Ex.P5 and FIR registered. On February 1st, arrived scientific officers and assistant of forensic science laboratory who before motbirs PW 6 & PW 26 do support with their signatures on prepared memos Ex.P9 & 10, examining room No.5 and also just opposite room No.4 and other room collected above articles, including pieces of cigarettes, found some bill type papers, baniyan, pieces of muffler, blood stained bed-sheet etc. and also the rope by which the hands were tied – piece of muffler found and baniyan tied around neck upto mouth – site inspection reports are Ex.P31 and 44 – chance prints found, developed and taken, preparing memos Ex.P9 and positive photographs of the place of occurrence are Exs.P82 to 93 – positive photographs of the place of occurrence along with found articles are Exs.P33 to 43. Rahul died due to asphyxia, as a result of smothering some time between morning of 27th January to late evening of January 28th. As deceased arrived and very much seen by many in morning of 28th, so conclusively stands established that deceased died between noon of 28th to morning of 29th - further as not seen alive by any hotel personnels by 28th evening and very much in afternoon of 28th so died afternoon of 28th. Circumstances sought to be proved and on which learned trial Judge inferred to be proved are : (1) Appellant Tejkaran, along with two others (Nav Ratan and one other) stayed in hotel Room No.4 since 27th evening – entry made in the 8 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan name of Amar Chand. (2) Deceased also arrived in hotel around on 28th morning 7 – 3.30 O'clock and entry made in his name for room No.5. (3) Appellant and two others who staying with were in hotel in afternoon of 28th around 3-4 O'clock. (4) Appellant and other two stayed with him, hurriedly left at about 4 O'clock afternoon. (5) Hotel waiter and cleaner who checked and cleaned room No.4, found string of window curtain in room No.4, snatchingly broken and hanging in room No.4. (6) Finger hand prints found and developed at the scene of occurrence in room No.5, found matching to that of other arrested. (7) Plastic rope and ends of plastic rope used in tieing hands of deceased was similar to that of pieces of string found hanging in room No.4 and there ends physically tallied and all there were disimilar to string found in room No.7. (8) Key of the lock owned by Rahul and found on his room No.5 recovered on disclosure of absconding Navratan. (9) Watch of deceased found on wrist of appellant. Sampat Lal PW 11 hotel owner and also the waiters PWs 13, 14 and 16 say that Prakash Chandra was manager. PW 11 further depose that per entry in hotel register in room No.5 stayed Rahul and in opposite room No.4 stayed three persons in the name of Amar Chand from the evening of 27th January till 4.00 p.m. of 28.1.2000. PW 11 further says that he knew deceased for 3-4 years who often came in relation to his business and stayed in hotel. Ramesh Chandra PW 13 states that he waiter in this hotel since 1989 after duty, left in the morning of 27th, and coming back at 5 – 5.30 p.m. and relieved Vaini Ram PW 14. PW 13 depose that in morning of 28th 9 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan at about 5 – 6 O'clock came Rahul who as used to come since 4-5 years and hotel full so, had rest on sofa of office and who given room No.5 at about 8 O'clock which was vacated at that time. PW 13 categorically says that he served tea to Rahul in room who left around 9.30 – 10 in morning and in room No.4, just opposite to hotel room No.4, were staying three persons, of them one is accused (appellant) and he does not know their name and that he (PW 13) went away after his duty at 2 noon of 28.1.2000 and came back next day, then says that from Jaipur, on telephone, queries made about Rahul. Vaini Ram PW 14 is other waiter who depose of being on duty from 5.00 p.m. of 27.1.2000, says that room No.4 was given by him to three persons who told of having come from Ajmer and heading for Udaipur in relation to business, made entry in the name of Amar Chand and appellant is one of them. PW 14 also state that he served tea to these three persons and became off when PW 13 came, then came back at about 11.00 O'clock on 28.1.2000 when Ramesh (PW 14) told him of Rahul staying in room No.5 and entry of three tea is to be made in his account. PW 14 then says that other waiter Mohan told him that room No.4 has been checked out, so outstanding of tea may be inquired from the concerned who inquired of having obtained price and that these three persons staying in room No.4, had hurriedly left at about 4-4.30 p.m. and went towards bus stand. PW 14 further deposed about inquires being continuously made since evening of 28th by father of deceased and then opening of room by police. Mohan PW 16 deposes of having left after duty at 4.00 p.m. of 27th 10 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan and having returned at 12 noon on 28th. PW 16 categorically say that at 3.00 p.m., came Rahul and asking him for tea, went in his room and he served tea in his room and, at that time, in room No.4-just opposite to room No.5-were sitting two persons and while (this witness PW 16) coming down stairs saw third person who staying in room No.4, was climbing up stairs – then at about 4-4.30 p.m., these all three of room No.4 came down and vacating room asked him (witness) for accounts and paid Rs.20/- and as Rs.100/- were already deposited and Rs.115/- payable, so returned were Rs.5/- also spoke for preparing bill, but these persons, declining hurriedly went towards bus stand. Waiter Mohan PW 16 specifically says that soon he went to clean room No.4, observed room No.5 locked and in night, he and other Vaini Ram on duty, also talked of Rahul having not returned. PW 16 became off duty in morning of 29th and returned in evening, found police proceedings on. For identification, PW 16 says that he knows all three by face but by name only to Ashok (not arrested and said photo on record) and the person who wrote Amar Chand, was tallest among three. Appellant Tejkaran also identified by this witness as one of those three and who, as above,also is straightly identified by PW 13 and PW 14. In hotel register (Art.11) seized vide Ex.P11 at relevant pages Exs. P7 and 8 entry is of coming of Amar Chand and others total three at 5.15 p.m. and then after four entires, 5th is of deceased arriving at 8.30 a.m. on 28.1.2000. Thus, stands proved that these three persons, including appellant Tejkaran who all were staying there. Also is proved that at about 3.00 p.m. when deceased came and went 11 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan in side room his room No.5, in room just opposite to room No.4 all the three staying, two were and third just then came up stairs. A little after at 4.00 - 4.30 p.m., all three of room No.4 left and soon after room No.5 was found locked. Here, it is to be noted that found lock on room No.5 was of deceased himself as deposed and lock identified by his father PW 4. Waiter PW 13 categorically say that he know (by face) three persons staying in room No.4, but does not know their names and appellant is one of them – to whom and other (who arrested but absconded) he also identified before Magistrate – memos of identification of Tejkaran and other before Magistrate are Exs. P13 and 14. Similarly, another waiter PW 14, identifying appellant by face, says that he also identified him and other before the Magistrate - this person also (now) named appellant and others. Thus, (names) to whom PWs 13, 14 and also 16 identified, stand established. Mohan PW 16 says that he know appellant by face and by name and face both knows only Ashok and also says that tallest among these three was Amar Chand who has earlier also stayed and, who made entry in the name of Amar Chand. Thus, appellant is not the person who named himself as Amar Chand. Neither of appellant and other arrested (Navratan) is Ashok. Dy. S.P. PW 29 deposes that clues led to Ashok Kumar who could not be arrested but his cousin Vinod Kumar interrogated and photo of Ashok Kumar taken from him and prepared was memo Ex.P27. Mentioned in Ex.P27 is that Vaini Ram son of Bheru Lal (PW 14), when shown the photo, identifying said that he is the person who stayed in room No.4 and who also made entry in 12 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan the register. Thus, also stands proved that appellant stayed with other two – one of which was named Amar Chand and appellant is not who presented himself as Amar Chand. As is observed, at about 3.30 p.m., deceased just came, ordered for tea which served at his room by PW 16 who at that time observed two (of these three staying in room No.4) and when PW 16 was coming down stair, did observe the third coming up stairs, i.e. to room No.4, where he was staying. Soon after within an hour, all three, including appellant left hurriedly and room No.5 was also found locked – the lock belonging to deceased. Appellant and other arrested both are identified by waiters PWs 13, 14 and 16 who also say that none of these is one who made entry in the name of Amar Chand. In course of identification, both arrested were identified by PW 13 and PW 14 and again identified in Court. Also relevant is that photo recovered by Dy.S.P. PW 29 (from cousin of person whose photograph is) vide memo Ex.P27, was identified by waiter PW 14 as of the person staying and making entry in name of Amar Chand and so is deposed by ASI Shiv Singh PW 20 and Mohan PW 16. Here, it is to be remembered that occurring such a ghasty incident and when obviously waiters and others were deeply interrogated since afternoon of 29th, they had every reasons to recollect and remember faces of those staying in room No.4. Further they were identified in course of identification proceedings before Judicial Magistrate out of 16 and then in Court – all these facts eliminate any possibility of not perfect identification. 13 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan This stands further fortified by the Hon'ble Apex Court observations in AIR 2007 SC 2425, Heera & Another v. State of Rajasthan. PW 30 states that the synthetic rope tied at hand (wrist) was seized and sealed by him – motbirs PW 1 and PW 9 support it. PW 30 deposes that in room No.5, were several articles snatchingly broken synthetic rope which also seized vide by expert team memo Ex.P10. Jagdish Singh PW 6 and PW 26 corroborate it. This was seized on February 1st and the spot inspection report Ex.P44 proved by scientific officer PW 25 and junior officer PW 21 also mentions of rope lying on bed and positive photograph Ex.P34 was taken before these scientific officers. All this is also described in spot inspection report. Similarly, in room No.4, hanging were two ends of curtain string which were also seized vide memo Ex.P10 and this also finds mention in spot inspection report Ex.P44 and exhibited photos Exs. P10 and 11. Report Ex.P44 also mentions that all other rooms were searched and string of room No.7 found broken too was seized. Evidence regarding all these articles safely taken or delivered at laboratory, is on record. All these string pieces were scientifically examined by senior scientific officer PW 24 who, proving report Ex.P32, states (i) string of about 1.35 meter length found in room No.5 (by which hands of deceased were tied and sealed packet B-1) and both pieces of broken string of curtain of room No.4 (B-2) were of same string; (ii) both ends of the string found in room No.5, tallied to broken ends of two strings found in room No.4, (iii) string and ends found in room No.7 did not tally of the 14 D.B.Criminal Appeal No.235/2002 Tej Karan v. The State of Rajasthan string found in rooms No. 5 and or 4. Thus, stands proved that on physical examination, the string by which the deceased s tied, was one snatchingly broken from curtain of room No.4. Senior scientific officer PW 25, and junior scientist PW 21 depose and prove that all articles were seized and chance prints also taken and developed. SHO PW 30 proves that before incharge jail and in jail palm , finger and thumb impressions of appellant were taken by him (Ex.P6 to Ex.P39) which bear his as well as jail in charge's signatures and that thumb and finger impressions (ExP53 to Ex.P55) were also taken by him. Similarly, impressions of finger and thumb of Navratan (ExP6to to Ex.P63) taken by him and also taken before jail in charge (Ex.P64 to Ex.P67) which bear signatures of his as well as jail inchgarge. Report of finger print bureau is Ex.P71. Evidence of PW 30 and constable Nathu Giri PW 28 prove that collected above specimen impressions