1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T (1) RUPA RAM V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO.17/2004. (2) ROOPA RAM V. THE STATE OF RAJASTHAN. D. B. CRIMINAL JAIL APPEAL NO.19/2004. Against the judgment dated 15.12.2003 passed by Shri Chunni Lal Khatri, RHJS, Additional Sessions Judge (Fast Track), Bali (Rajasthan) in Sessions Case No.14/2003 (26/2003). DATE OF JUDGMENT APRIL 29, 2010 PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr.Shambhoo Singh with Mr. Bharat Singh, for Appellant (s). Mr.K.R.Bishnoi, PP, for the State. BY THE COURT: (PER HON'BLE TOTLA, J.) Appellant held guilty for the offences of Sections 302 and 201 IPC, for the former sentenced to life imprisonment with fine Rs.5,000/- and for later, one year's rigorous imprisonment with fine Rs.1,000/- and hence these appeals challenging conviction and sentences. Appeal No.19/04 is jail appeal, whereas appeal No.17/04 representative appeal. Both being decided by the judgment. Alleged incident and sequence of events, per prosecution, is that on 2 24.11.2002 at 9.45 a.m., someone not disclosing his identity, calling police station, Sumerpur, informed that a dead body below neck (limb) of some un-known person, is lying in industrial area behind Ashok mill - SHO PW 19, on receiving this information and recording it in roznamcha, proceeded and arrived at the disclosed place, where was below neck and without a hand-male dead body. There among several persons gathering, was Smt. Sankli PW 8 who, identifying body to be of her husband Surma Ram, giving statement to SHO, stated that she and husband both coming from their village for last one and half or two years, were living near Jakhora road and earning livelihood by cutting trees and making coal – since last one and half or two months, they began to reside near field of Narain Kumhar at bank of the river. PW 8 stated that three days earlier, in evening, her husband went for bringing flour who has not returned and not found despite inquiries – yesterday night at about 10-11 O'clock, her (PW 8's) brother-in-law (devar) Rupa Ram, who resides in a rented house in Jakha Nagar came on cycle and told her of Surma Ram having taken excessive liquor now lying on cot, is on verge of death – telling so, Rupa went away and then PW 8 with daughter on foot went to room of Rupa Ram, where found, was Indra d/o. Rupa Ram but not Surma Ram whose “chappals” were there and as Indra stated ignorance, PW 8 came back and neither Rupa Ram found. PW 8 stated that on that day (24.11.02), she hearing of a dead body lying behind factory and people gathering- also came there and the body lying there little hilly like area, near Khejari tree, of which portion above neck is not, is of her husband which she identifies looking legs and clothes and husband is murdered. On this information, FIR crime No.392/02 was registered vide Ex.P43 for the offences of Sections 302 and 201 IPC. SHO PW 19, beginning investigation, prepared memo and site plan Ex.P2 of the place, where the above part body found and also prepared memos Exs. P3 and P4 of the state of the body – place along with part of the body photographed by PW 18. Autopsy of the portion performed by medical board, preparing report Ex.P28. Clothes shirt and dhoti near and over the body, also sealed, 3 preparing memo Ex.P5. From that place, sample of blood smeared and plain soil collected and sealed vide memo Ex.P7. Appellant was arrested on 26.11.2002 and SHO PW 19, recording disclosure made by him as Ex.P44 and at his instance, from his residential room, recovered a wooden patiya of about 3' x 6” vide preparing memo Ex.P21, and site plan Ex.P22 – also recovered at the instance of the appellant from his house “chappals” of deceased, preparing memo Ex.P24. SHO PW 19, reducing disclosure made by appellant in writing as Ex.P45 and at the instance of appellant on 29.11.02, found per disclosure, at agriculture field and between babool bushes behind cold store in a little stream like lower earth surface, a human skull (above neck) substantial portion of which eaten away and mutilated by wild animals which identified by Smt. Sankli to be of her husband and there also was a polythene katta, having some blood like stains and an axe of 12.5 cm x 11 cm metallic fulcrum with a 2 ft. long wooden handle. Memos of skull finding and site plan of the place Exs,. P16 and 17 were prepared. Axe and katta seized and sealed, preparing memo Ex.P15 and autopsy of the skull portion performed by medical board, preparing report Ex.P19. Place of occurrence, that is separation of skull from the portion body was verified at the instance of appellant, preparing memo Ex.P23. Packets of collected and seized articles and also pieces of stomach, spleen, liver etc. preserved during autopsy, safely kept and delivered at laboratory and after other investigation, charge-sheet submitted. Appellant charged for the offences of Sections 302 and 201 IPC that he on 22.11.02 and/on 23.11.02 at Sumerpur, with intention of killing Surma Ram, inflicted severe injuries and cutting from neck, separated head and hand of Surma Ram and then concealing head, hand and axe also caused disappearance and destruction of evidence of the offence, denying claimed trial. Of the 21 prosecution witnesses examined, Naina Ram PW 11, Badiya PW 21 and Ladu PW 20 relate to seeing appellant and deceased together, that is “last seen” and of these PW 20 is declared hostile. PWs 4 1, 2, 3, 6, 7, 10, 12, 13 and 17 are motbirs for different proceedings undertaken in course of investigation, PW 8 wife of deceased and first informer is declared hostile, PW 14 daughter of deceased speaks of finding “chappals” of her father at house of appellant, PWs 4, 5 and 15 pertain to safe keeping and delivering packets at laboratory. PW 19 is investigating officer and Dr. PW 16 performed autopsy with other medical officer, proves so and reports Exs. P 28 and 29. Appellant apprised of the evidence and circumstances against him, explains that witnesses telling wrong and he not committed any offence, is falsely implicated. No defence evidence laid. Learned trial Judge, inferring that deceased was last seen at hotel with Rupa Ram and they both, quarreling, went towards forest – from that side, body below neck and without a head recovered – per disclosure and at the instance of the appellant found and recovered skull, that is above neck portion of the deceased – also recovered per disclosure iron axe, chappals and these articles, having blood stains. On basis of the findings, convicted and sentenced as above. Learned counsel for the appellant accused argues that (1) skull, when recovered, was not in a identifiable state – similarly, identification, on basis of lower cut portion after 2-3 and more days of death and in jungle cannot be definite certain, (2) complainant Smt. Sankli has not supported prosecution, (3) skull or any part of body not proved to be found on information furnished by appellant – definite is evidence is that when police personnel observed skull part, crowd was there, (4) evidence of photographer proves that photos taken on one and same day, and photograph includes that of skull therefore, only conclusion can be that both parts of body found on same day and no fact discovered on information, (5) extensively reading oral evidence produced, learned counsel urges that prosecution version cannot be believed and very substantial on strong grounds, is doubt about involvement of appellant. On the other hand, learned Public Prosecutor submits that (i) cutting at neck, both the parts separated, (ii) identified by PW 8 to be of 5 Surma Ram upper part proved to be discovered on the information of appellant, (iii) recovery of axe also at the instance of appellant, (iv) appellant is the only person last seen alive with deceased, (v) little inconsistencies, if any, for recovery etc. is of no consequence. Thoughtfully considering above arguments, we have carefully gone through the evidence produced, record, impugned judgment and also memo of appeal. Though first informer and wife PW 8 is declared hostile by the prosecution, but she states straightly that husband who went out to obtain flour, did not return, then after, (a day or two), appellant Roopa came to their place, and smoked but did not say any thing. PW 8 deposed that she identified body to be of her husband observing legs and clothes etc. and policeman did all needful proceeding, taking her thumb impressions on papers prepared. PW 8 states that she also saw skull of the husband and identified. PW 8 state of some in-difference between brothers because of agriculture land. Regarding identification, PW 8 who had also lodged FIR says that she identified the body to be of her husband. Body was portion below neck with upper part above neck and also a hand missing. The person who identified, is wife of deceased, blessed with a daughter PW 14. The body was recovered on 24.11.02 and when post-mortem conducted on 25.11.02 at 1.15 p.m., the body was found to be of two to 4 days duration, meaning thereby death occurred some time on 22nd - 23rd November. As such, the body was not of more than two days duration with clothes over and near the body, so cannot be said that body not identifiable. Therefore, the argument advanced, cannot stand. The skull portion was found only on 29.11.02, i.e. about 6-7 days after death. Clearly emerges of in evidence that this portion was badly mutilated, eaten away by animals and/or insecticides and only intact portion substantially was the part from and upper to jaw. For this portion, chairman of the medical board doctor PW 16 depose that the skull was of a male, without any fracture, broadly skeleton, and 6 putrifying. Considering this, can be said that only on the basis of this skull, definite identification perhaps cannot be possible, but this in present case, makes no difference because wife of deceased has identified deceased on basis part below neck and with that very significant becomes this fact that skull of a male person, died 5-6 days ago, is found in that area as above. Shantilal PW 18, the photographer, depose that he took photos which were of lower part of body and of skull-and, in cross-examination, says that all photos taken on one and same day but he does not remembers as to taken on what time. According to PW 18, all the photos were taken at one and the same place. Though the photographer says so but as above very definite proving evidence is not only of investigating officer, but also of several motbirs PWs 2, 3, 6, 7, 10, 17 that parts of body were separately found in a span of 4-5 days. Depositions of these witnesses, and also including PW 8 do not tend to indicate in any manner that both the parts were found together or even on same or next day. Mohan PW 7 and Vem Singh PW 17 motbirs of recovery on 29.11.02 do very definite say that only skull portion was. Similarly, PW 3, PW 2 and PW 7 say of recovery of lower part on 24.11.02. Sankli PW 8 speaks finding only of lower part and her identification (and also FIR) looking that part. Therefore, the argument on the basis of above statement of photographer that both parts were at same place or together on day first part was recovered, cannot stand. In any case, in none of the photos Exs. P31 to 41 appear both parts together and further per evidence of doctor PW 16, stands proved that of skull part only autopsy performed after four days of autopsy on lower part which conclusively shows that both the parts were separately found on different days. Wife of deceased PW 8 and daughter PW 14 both say that Surma Ram went alone. PW 8 say that Rupa came afterwards, smoke and went away without telling anything she denies truthfulness of Rupa coming in night, telling her of Surma having taken excessive drink, is on the verge of death and lying on cot at his (appellant's) house (appearing in FIR 7 Ex.P11). Sijma PW 14, daughter of deceased, who was 12-13 years at the time of incident, says that house of Rupa is not at much distance and after 5-6 days, she when went to house of Rupa there were chappals of father. Thus, it appears that after 3-4 days chappals of deceased were at appellant's residential premises. Naina Ram PW 11 says that he well knew appellant and his brother Surma Ram and at his (PW 11's) hotel came Rupa and Surma to take meals at night time on day one or two after Deepawali festival and as they began to quarrel so the witness asked them to go away and then after 4-5 days he heard of death of Surma Ram. PW 11 says that police also called him to see the body and his thumb impressions taken on memo. Hotel of this witness PW 11 is on road per witness house of appellant in near vicinity. PW 11 denies of having stated in the course of investigation that appellant, deceased and two others at hotel, were taking liquor but accepts that Surma Ram was very deeply intoxicated. PW 11 also says that liquor shop is at a distance of 100 ft from his hotel. Other witness PW 20 does not support prosecution. Badiya PW 21 says that he and one Raja Ram went to hotel for taking food and there Surma Ram and Rupa were quarreling. This witness also denies of having stated in course of investigation that at that time, in course of quarrel, appellant gave a blow of wooden patiya at head of Surma who fell down. Rajaram PW 20, who per PW 21 was with him at hotel and they also drinked together do not support and is declared hostile, but no reason is s to not to accept evidence of PW 21 and PW 11. As such, firmly is established that deceased was seen last prior to finding of his body with appellant. Chappals of the deceased were found at the house of the appellant. Not only is mentioned in FIR that the chappal of the deceased was at house of appellant, but daughter of deceased PW 14 states in definite terms that after 4-5 days, chappal was found at the house of appellant. According to evidence of investigating officer PW 19, corroborated by signatures of motbirs PW 12 and PW 13 (both hostile), is 8 established that when on 28.11.02 wooden patiya was recovered on information and at the instance of appellant, also recovered were chappals of deceased which seized vide memo Ex.P24. As such minimum is established that chappals were at the house of appellant. SHO PW 19 states that appellant in custody told him that head of brother and also axe is concealed by him in a polythene katta in bushes, behind Jakha Nagar factory in a khadda near a tree, which information reduced in writing as Ex.P45 – and then at instance of appellant, behind factories, near a tree, was found human skull, near which was also an iron axe and katta which seized and sealed, preparing memos Exs. P15 and 16. Recovery officer PW 19 states that when skull was found, its base was on earth and of axe, some part was in soil and “hand” (of body) not found. PW 19 states that place where skull found, is open one, people often going and coming. Independent witness Mohan PW 7 states that from behind industrial area, police recovered skull and also that an axe which given there by appellant was sealed and prepared memos Exs. P15, 16, 17 and 18 bears his signatures. Other motibr Vensingh PW 17 also support and both these witnesses PW 7 and PW 17 say that place is jungle like behind factories. According to Mohan PW 7 and ASI PW 10, when police personnels reached crowd of 200-250 people already there and nearby at about a distance of 200 metres, is Highway. As above, though the crowd gathered but it gathered at the time police personnel arrived thereon a very little earlier. For the sake of argument,taking that skull being there, not disclosed by appellant, still the other part of information Ex.P15 that axe is there, was disclosed by appellant and axe recovered from that very place, at the instance of appellant. Therefore and as above, prosecution has proved that (i) deceased having left house for market, did not return, (ii) appellant was seen in night at a hotel with deceased and both quarreled, thereafter, only lower part of body of deceased found, (iii) five days after, finding of lower part, the skull portion was found per disclosure and information of 9 appellant, (iv) axe with a handle and a katta also recovered on information and at the instance of appellant, (v) chappals of deceased found at the house of appellant. Though not much significance is to be attached to it but wife of deceased PW 8 and daughter PW 14 state of indifference between the brothers for agriculture land. Serological examination report proves that on shirt of deceased and on Kulhari recovered, was A group blood and human blood, group of which could not be determined, was on dhoti and blood on soil collected. Above elements do lead to only conclusion that appellant alone and none else caused death of Surma Ram. Even if finding of skull (only on disclosure of appellant) is excluded, even then, on other circumstances proved is that appellant and deceased brothers, having been seen together, soon before death of Surma Ram (last seen) quarreling each other – iron axe recovered per information of appellant and at his instance, and near the skull and at a distance of one furlong from where lower part found- the axe having sharp heavy metallic dimension of 11 cm x 12/1-2 cm and handle of 2 ft with blood of same group as on shirt of deceased – finding of chappals at the house of appellant do lead to only one conclusion that the appellant did kill Surma Ram. For the reasons and findings as above and other described in impugned judgment, conviction and sentence awarded to appellant Rupa Ram s/o. Shri Pada Ram does not suffer from any infirmity, therefore, conviction arrived at and sentence awarded, requiring no interference is to be affirmed. Accordingly, rejecting the appeals, conviction and sentences awarded to appellant for the offences of Sections 302 and 201 IPC vide judgment dated 15.12.03 (SC No.14/03 {26/03} ) are upheld. Appeals dismissed accordingly. (C.M.TOTLA), J. (GOVIND MATHUR), J. scd