IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 453 of 2002 RAMESH KUMAR V/S STATE Date of Judgment : 10th December, 2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. VISHAL SHARMA, Amicus Curie for the appellant Mr. JPS CHOUDHARY, PP, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) The appellant by this appeal from jail, seeks to challenge the conviction and sentence recorded by Addl. Sessions Judge (Fast Track), Sirohi, vide judgment dated 7.6.2002, passed in Sessions Case No.8/02 (4/02) convicting the appellant for offence under Section 302 and 201 IPC and sentencing the imprisonment for life and a fine of Rs.1000/- for offence under Section 302, in default of payment of fine to further undergo 6 months' imprisonment, while sentencing to one year's rigorous imprisonment for offence under Section 201 and a fine of Rs.500/-, in default of payment of fine to further undergo imprisonment for two months. The brief facts of the case are, that on 5.8.2001, a written report Ex.P-1 was submitted by Roopa Ram, who is the real brother of the appellant Ramesh Kumar, alleging inter-alia, that about 15 days ago, he had gone to Ahmedabad for earning livelihood, and the entire family lives in village Mare-Mandwada. It was alleged that the family consisted of his father Kaluji (deceased), mother Radubai, sister Pawani, and brother Ramesh (appellant). It is then alleged that after working there for about 7 days he got ill disposed, and therefore, on Wednesday at about 12.00 in the noon, he reached home, and did not find father, while the other three were at the house. It is alleged that mother and sister were disturbed, and on asking about father they posed to be weeping, while the appellant said, as to what is so serious, and why he is worrying, he (father) will come, as he has gone to Ahmedabad for some work. He entertained some suspicion and asked the brother, thereupon the brother threatened him also. Thereafter, it is alleged that yesterday in noon at about 4.00 PM Ramesh went in the village, and then he asked his mother and sister, who revealed, that on the last Monday, he asked for key of bicycle, which was with Ramesh, to go to Haliwada, but Ramesh refused, thereupon there was some exchange of words, and the father put another lock and chain on the bicycle, whereupon Ramesh got enraged, and 2 started belaboring the deceased, whereupon the two ladies intervened. Thereafter, on Tuesday after taking meals, when mother, sister and brother had slept in the open, the deceased was sleeping in the Osari. At that time, at about 1.00 in the night Ramesh picked up an iron hammer (घन) from behind the house, and inflicted injuries on the head of the deceased. On hearing the cries, mother and sister shouted and went to intervene, whereupon the accused threatened that if they shouted or came near, they too will be killed, as the old man has already been done away with. Then the mother and sister were said to have seen the victim, who was alive, and when they requested to take him for treatment, they were threatened with life, and that the victim died in the morning. Thereupon Ramesh excavated a pit in the stable and buried the dead body, and did not allow the mother and sister to go out of the house. It is also alleged that as there is no habitation near the well, the two ladies could not inform about it to anybody, and on the informant reaching the house, in view of the presence of the accused in the house, the two ladies, under fear, did not disclose anything to the informant either. The cot on which the deceased was lying at the time of incident has been put behind the house. It is alleged that on coming to know of the incident he immediately tried to contact his uncle Babu Lal on telephone, but the telephone could not get connected, thereupon in the morning he went to Sanpur and gave intimation to uncle on telephone. On this report, 3 case under Section 302 and 201 IPC was registered, and after necessary investigation challan was filed. Then the case was committed and from Sessions Court it was transferred to learned trial Court. The learned Trial court framed charges for offences under section 302 and 201 I.P.C. The accused obviously denied the charges. During trial the prosecution examined some 13 witnesses, and produced some 32 documents. The statements of the accused were recorded under Section 313, who denied the charges, but did not lead any evidence. After completing trial, the learned trial Court convicted and sentenced the accused as above. Mr. Sharma, learned Amicus Curiae, arguing the appeal submitted, that the prosecution has failed to establish the date of occurrence. Then the recovery of the cot and the Fawda is doubtful, as the recovery is hit by Section 162 Cr.P.C. Then regarding recovery of hammer it was submitted that it has been recovered from an open place, which was accessible to the persons, who wanted to have the accused convicted, and that the Forensic Science Laboratory has not found any blood thereon. It is also contended that the motive in the present case is oblique, as it does not stand to reason, that merely on account of the deceased, the father, asking/refusing to give key of the bicycle, would be killed by the son. Then regarding 4 eye-witnesses it was contended, that there was no light at the place of alleged occurrence, and eye-witnesses could not see the incident, apart from the fact that their conduct is wholly unnatural, in keeping silence for good long four/five days. According to learned counsel, the entire theory is suspicious, and it is wholly improbable that the accused was at the house round the clock, and continued the two witnesses under threat. According to learned counsel, the possibilities are not ruled out, that the deceased must have been killed by the informant Roopa Ram, as it has come during trial, that the deceased was keeping bad eye on the wife of Roopa Ram, who had gone to village Haliwada, and the deceased wanted to go to that village Haliwada, and being enraged, the informant may have killed the deceased, and the period between the alleged incident and the first report has been used to cook up a story against the appellant, as the appellant is not earning anything, and was being treated as waster by the family, while the informant was earning for the family. The learned Public Prosecutor on the other hand supported the impugned judgment, and contended, that the recovery of hammer is on the information of, and at the instance of the accused appellant, under Section 27 of the Evidence Act, and is very much admissible in evidence, and is not hit by Section 162 Cr.P.C. It is also contended that it cannot be accepted that the mother and sister would 5 spare the real culprit, and would falsely implicate another son. Regarding delay, it is submitted that sufficient, reliable and proper explanation has been submitted by the prosecution, and the learned trail Court has rightly believed the prosecution story. There is nothing suspicion in it, and the things had been projected before the Court, simply as they are, and thus, it was contended that the appeal is liable to be dismissed. We have heard learned counsel and have gone through the record. Since in the present case, the factum of death, death being homicidal etc. are not in question, therefore, we may straightway refer to the star witnesses, being P.W.1 Roopa Ram, the informant, P.W.4 Pawani, and P.W.5 Radubai. P.W.4 and 5 were said to be the eye-witnesses. Before proceeding to consider their evidence, we may recapitulate, that 1st of August 2001 is Wednesday while 5th of August 2001 is Sunday, and as the story has been recapitulated above, that on Monday i.e. 30th July 2001 the deceased demanded key from the appellant, and on the next day in the night i.e. 31st July 2001, the incident is said to have occurred, while the informant is said to have reached the house on Wednesday i.e. 1st of August 2001 in the noon. The post mortem examination has been conducted on 6 6th of August 2001, the post mortem report is Ex.9, and therein duration of death is given out to be between 3 to 10 days i.e. the deceased may have well-nigh died on 3rd of August 2001 or may have died at any date after 26th of July 2001. This informant Roopa Ram as P.W.1 has deposed, that the deceased had been killed by the accused appellant, and that some 10-15 days before the incident he had gone to Ahmedabad for earning livelihood, and when he got ill disposed, he came to the house, and that the family lives on the well outside the village, family consisted of mother Radubai, sister Pawani, brother Ramesh and father Kalu Ram. He has deposed that when he came he did not see father, then he asked the mother about the father, whereupon Ramesh is said to have told that he has gone to Ahmedabad, however, nothing was said by the mother and sister, who were looking afraid. Then on the next day, when Ramesh went to village, his mother and sister disclosed, that on Monday the deceased had demanded key of bicycle from Ramesh, who denied, thereupon the deceased put another lock, which enraged Ramesh, and he picked up quarrel. Then on the next day being Tuesday, in the night, when the deceased was sleeping in the room, while the other three were sleeping outside, Ramesh got up and went to the Osari, and hit the deceased with the hammer. It is also disclosed, that sister had seen the accused inflicting injuries, as she did not 7 sleep, and mother was also there. The victim was in some senses, and therefore, mother and sister asked for getting him treated, but Ramesh threatened them with death. Then the deceased died. Thereafter Ramesh excavated a pit in the stable and buried the dead body, put the cot in the backyard. It is deposed, that on learning this he went to make telephonic contact with his Kaka Babu Lal, but phone did not connect, then he went to Sanpur, and informed the things to Kaka, and in the evening Police came. He has proved report Ex.P-1, and his thumb mark thereon at Point- X. He has also proved the site plan and site inspection note Ex.P-2 and P-3 and has deposed that the police has seized Genti, Fawda, blood stained cot, prepared inquest report, Panchnama Lash and memo of Supardagi Lash. In cross-examination, he has denied any incident to have occurred between himself and his father. Then he has deposed that when the deceased used to come to Gujarat for earning livelihood, he used to stay with the witness, and the wife of the witness being Nenu was also living with the witness. He has denied the suggestion, about the deceased having bad eye on the witness' wife Nenu. He also denied the suggestion about his having picked up a dispute with father and mother on the aspect of Nenu, or that the mother narrated the things about dispute to Ramesh. Then has deposed that he came to village after some 15 days of the murder, and that, apart from mother and sister, nobody else told him about death of Kalu Ram. He has deposed that the 8 well, where they live, is at a distance of one and a half kilometer from the village, and that his Kaka Babu Lal lives in village Gulabganj. He has also denied the suggestion about mother and sister having not told him anything about the murder. Before proceeding further, we may notice the material discrepancies appearing in the evidence of this witness, inasmuch as, according to first report, he had gone to Ahmedabad some 15 days before lodging of the report, and to have come to the house on Wednesday at about 12 in the noon i.e. 1st of August 2001, and as also mentioned in Ex.P-1, that he remained in Ahmedabad for about 7 days, and then came to village, as he got ill disposed. This sequence of things, if properly read, does show, that he remained in Ahmedabad for 7 days before Wednesday, the 1st of August 2001. In this background, while in the witness-box he has deposed to have gone to Ahmedabad some 10-15 days before the murder, and to have returned to village after getting ill disposed. This is one thing. Significantly, he has not deposed, as to when did he come to the village, and has simply deposed that after going to Ahmedabad, when he got ill disposed, he came to house. With this, he has further deposed, that on the day next to his arrival to house, Ramesh had gone to village, and his mother and sister made disclosure about the whole incident. As noticed above, according to the first report, he had 9 come to village on 1st of August 2001 and thus, he claims to have come to know of everything on 2nd of August 2001, but then the report is not lodged till as late as on 5th of August 2001. In the first report, he has alleged to have gone to village Sanpur and to have telephoned to Kaka from there while according to his statement given in the Court, since telephone did not get connected he went to Sanpur and told everything to Kaka. Then in cross-examination he wants the Court to believe, that he along with his wife was living in Ahmedabad and earning their livelihood, and as and when the deceased used to go to Ahmedabad, he was staying with them, while according to the story propounded in examination-in-chief, he had gone to Ahmedabad some 10- 15 days before the incident only, and since he got ill disposed there, he returned to the home. In our view, it does not stand to reason, that if the informant had come to know of everything on 2nd of August 2001, from his mother and sister, when the appellant had gone to village, all the three witnesses would lie low, and would not do anything, despite their nearest of the kin had been murdered in the manner which this Court is intended to believe. Likewise, in the first report he has disclosed, that deceased wanted key of bicycle to go to Haliwada, but while in the witness- box he has not chosen to utter the village of Haliwada, for reasons best known to him. Then we take up to the statement of P.W.4, the 10 sister of the informant, Pawani. She has deposed that a day before incident, the deceased had asked for the bicycle for going to village Haliwada from the appellant, which the appellant denied, thereupon the deceased put another lock with chain on the bicycle, whereupon there was a quarrel between father and son, and she and her mother intervened, then she has deposed that on the date of incident in the evening, she along with her mother and brother Ramesh were sleeping outside in the Chowk, while the deceased was sleeping inside the house. She claims to be not getting asleep, and at about midnight the appellant got up and went towards Bara, on which she thought him to be going to urinate, but returned with a hammer, and when he went inside the house, she thought that he is going to drink water, and by going inside he inflicted injuries with hammer, on his father's head, whereupon she raised a cry. Then he dealt another blow. Her cries attracted the mother, then both of them raised cry, whereupon the accused threatened, that if they shouted any more, they also would be done away with, and that, even if they disclose the things to anybody else, they too will be made to meet the same fate. In the morning when they saw, the victim had died. At this place, we may pause and observe, that this witness does not say anything about the deceased retaining some senses after receiving injury, and about the witness' telling to get the victim treated, and any threatening being given, to deter them from getting treated. She 11 continues to depose, that then (obviously after in the morning, should be on 1st of August 2001) the accused excavated a pit with the assistance of Genti Fawda, took off the blood stained cloths of the deceased, buried the dead body, and put the cloths ablaze, and again threatened them with dire consequences. She then deposes that some 2-3 days thereafter, brother Roopa Ram came. Thus, according to this witness, she wants the Court to believe, that Roopa Ram came on Friday or Saturday, or may be on Sunday, and deposes that after arrival of his brother Roopa Ram, when Ramesh went to village, then she narrated the whole incident to him. Then Roopa Ram made a telephonic call to Babu Lal, and then the police came. Thus she has categorically deposed, that Roopa Ram did not go personally to village Sanwada to intimate Babu Lal, rather information was conveyed to Babu Lal on telephone only, and police had come, and exhumed the dead body. She has proved the site inspection note and site plan Ex.P-2 and P-3, various seizure memoes of recovery of Genti Fawda, cot, inquest report etc. as Ex.P-4, P-5 and P-6. In the cross- examination she has deposed that Ramesh was not coming to Ahmedabad for earning livelihood, Roopa Ram is said to be married, but she has denied the suggestion, about deceased having bad eye on wife of Roopa Ram. She has also denied her mother to be aware, of the deceased having bad eye on Nenu. She was confronted with portion A to B and C to D of her police statement, Ex.D-1, to which she deposed that she 12 did not give that statement, likewise, she has disowned the portion E to F of Ex.D-1. At this place, we may refer to the portions A to B, C to D and E to F of Ex.D-1. In this portion A to B, she has deposed that her father was having bad eye on the younger brother Roopa Ram's wife Nenu, which fact was in the knowledge of her mother, her mother had seen her father undertaking undesirable activities with Nenu, and there was some altercation between her mother and her father as well, and she has disclosed this fact to Ramesh as well. Then in C to D it is given out, that about 12 months ago, when they were in Gujarat, her mother, father and younger brother Roopa Ram's wife Nenu and herself was there, at that time, in the evening, Nenu was in her room, while her parents were sleeping outside, and she was sleeping at some distance, at that time at about 12-1 in the night, when she did not get asleep, her father got up and slowly started going towards the room of Nenu, whereupon she stood up, and noticing this, father returned and slept away, and in the morning she narrated the incident to her mother, and thereupon she, her mother and Nenu returned to village Mandwada. Then in portion E to F, it is deposed, that this incident was narrated to Ramesh, and thereafter Nenu went to her parental house at village Haliwada. In cross-examination she has denied the suggestion, that at the time of incident Ramesh had gone to Ahmedabad for earning livelihood, and Roopa Ram was in the house, and on account of the deceased having bad eye on 13 Nenu, Roopa Ram threatened to kill him. She has admitted, that Roopa Ram is the only bread earner in the family, while Ramesh did not earn anything, but she has denied the suggestion, that it is on this count that Ramesh is being falsely implicated. She has maintained, that when the accused dealt the hammer blow on the head of the deceased, she was seeing it, sitting on the cot outside, and went in the Osary. She has denied that there was any telephonic talk between Roopa Ram and Babu Lal, she has also denied the suggestion about Ramesh having been falsely implicated after consultations with the uncle Babu Lal. Then we come to the evidence of P.W.5 Radubai, who is the mother of the two witnesses, P.W. 1 and 4, so also of the appellant, and is the wife of the deceased. She has deposed that her husband Kalu Ram was killed by Ramesh some 9 months ago. A day earlier there was some altercation between the accused and the deceased on account of bicycle. According to her, at the time of incident, she along with her daughter and Ramesh were sleeping outside in the Chowk, while her husband was sleeping in the Osary. She was awakened by Pawani, P.W.4, and then she learnt that Ramesh has killed her husband. Then Ramesh buried the dead body under the Peeple tree, by excavating a pit and put the cloths ablaze. She has also deposed that Ramesh threatened, not to disclose it to anybody, else they also would be killed. Then she has deposed that 3rd day Roopa Ram came 14 from Ahmedabad, the things were narrated to Roopa Ram, when Ramesh had gone to village. Then Roopa Ram informed Babu Lal, her husband's younger brother. Then police came, and dead body was exhumed. Thus, she again gives a different story, as to when Roopa Ram came from Ahmedabad, she does not depose about the deceased having some senses after having received injuries and on requesting for getting the victim treated, Ramesh to have administered any threatening. Coming to cross-examination, this P.W.5 has denied the allegation about the deceased keeping bad eye on Nenu. She has admitted that some 2 years back the entire family had gone to Ahmedabad in view of famine. She has deposed that at that time Ramesh was working as a labourer in Tambaku Ki Gali, and worked for two months. Then he was sent to village, while others remained at Ahmedabad. Nenu was also there with them. She was confronted with her police statement Ex.D-2, portion A to B, which she denied to have given to police, so also portion C to D. In this portion, A to B she had deposed, that her husband Kalu Ram was having bad eye on Nenu, and that on one day, she saw her husband undertaking undesirable activities with Nenu, she scolded, there was altercations between husband and wife. This fact was known to Pawani and Ramesh as well. Then again on one night deceased started going towards the room of Nenu, which was noticed by Pawani, and thereupon 15 husband returned, and this was again narrated to Ramesh. Thereupon she along with her daughter Pawani and Nenu came to village Mandwada, and Nenu went to her parental house at Haliwada. Then in portion C to D she has deposed, that there was quarrel between her husband Kalu Ram and elder son Roopa Ram, on the aspect of going to village Haliwada. Thus, it appears, that this witness and P.W.4 are trying to make improvements, by suppressing the story about the things of Nenu, Kalu Ram having bad eye over her, and this fact being known to all the family members etc. Then in cross-examination she has further deposed, that some 7-8 days before the incident Roopa Ram had gone to Ahmedabad for earning livelihood. Then she has deposed that Ramesh is elder son while Roopa Ram is younger son. She has denied the suggestion, about any quarrel having been occurred between Roopa Ram and Kalu Ram, and therein Roopa Ram to have caused injuries,