Bhawar Lal And Ors vs State Of Rajasthan

Both the appeals are arising out of the same order, thus have been heard and decided by this common judgment.

These appeals have been filed against the order dated 01st August, 2016 passed by the Additional Session Judge, Jhalawar in Session Case No.60/2011. The accused-appellants have been convicted and sentenced as under :

"Accused-appellant Bhawar Lal :

Under Section 365 IPC:-

Seven years rigorous imprisonment & fine of Rupees 5000/- and in default of payment of fine further addition sentence of six months rigorous imprisonment.

Under Section 364-A IPC:-

Life Imprisonment & fine of Rupees 10,000/- and in default of payment of fine further addition sentence of one years rigorous imprisonment.

Under Section 302 IPC:-

Life Imprisonment & fine of Rupees 10,000/- and in default of payment of fine further addition sentence of one years rigorous imprisonment.

Under Section 201 IPC:-

Seven years rigorous imprisonment & fine of Rupees 5,000/- and in default of payment of fine further addition sentence of six months rigorous imprisonment.

The accused appellant Kailash Chand Rathor has been convicted and sentenced as under:-

Under Section 365/34 IPC:-

Seven years rigorous imprisonment & fine of Rupees 5,000/- and in default of payment of fine further addition sentence of six months rigorous imprisonment.

Under Section 364-A/34 IPC:-

Life imprisonment & fine of Rupees 10,000/- and in default of payment of fine further addition sentence of one years rigorous imprisonment.

Under Section 302/34 IPC:-

Life Imprisonment & fine of Rupees 10,000/- and in default of payment of fine further addition sentence of one years rigorous imprisonment.

Under Section 201 IPC:-

Seven years rigorous imprisonment & fine of Rupees 5,000/- and in default of payment of fine further addition sentence of six months rigorous imprisonment."

Brief facts of the case :

An FIR was registered by the Police Station Jhalwar on a written report (Exhibit P-2) of complainant Ram Narayan. It was stated that his son Jitendra Prajapat, at the age of 15 years and pursuing his studies in Class 9th in Modern School, Jhalawar, is missing. An information was given that a person, at the age of 30 years, was talking to his son and has taken him. The deceased Jitendra Prajapat left the school bag and did not return thereupon. The complainant thereupon received a telephone call at 9.09 PM from mobile No.9694058702 while he was searching his son. The stranger demanded ransom from the complainant and, accordingly, asked him to bring a sum of Rs.10 lac at Vigyan Nagar, Kota. It was stated by the accused that if ransom is not satisfied then they will kill his son Jitendra Prajapat.

The complainant thereafter also tried to search out Jitendra but he could not trace out and, accordingly, a written report was given to the police. An FIR No.204/09 was registered for the offence under Sections 365 and 342 IPC. The police made investigation and, thereupon, filed the charge sheet for the offence under Sections 365, 364A, 302 and 201 read with 34 IPC. The charge sheet was initially filed against the accused Bhawar Lal while keeping it pending against Kailash Chand Rathor under Section 173(8) Cr.P.C. The case was committed to the court of session, as it was exclusively triable by the said Court. In the meanwhile, charge sheet against Kailash Chand Rathor was also filed and was thereafter committed to the Court of session. Both the cases were thereupon heard together. The trial Court framed charges for the offences under Sections 365, 364, 302/34 and 201 IPC. The charges were explained to the accused. They denied the charges and claimed trial, thus it commenced.

In the trial, the prosecution produced twenty one witnesses apart from fifty six documents. The statements of the accused were recorded under Section 313 Cr.P.C.. In the connected trial of the accused Kailash Chand Rathor, the prosecution produced nine witnesses and twelve documents apart from recording of statement of the accused under Section 313 Cr.P.C. and, thereupon, it was clubbed with Session Case No.60/2011 (State Vs. Bhawarlal).

The accused produced three witnesses thereupon and after hearing the case, the trial Court convicted and sentenced both the appellants, as described earlier. The appeals have been preferred to challenge the order passed by the trial Court.

Learned counsel for the accused-appellants submit that there is no eye-witness to the occurrence and the prosecution failed to produce chain of circumstances to connect the accused with the crime. It is a case where the deceased Jitendra Prajapat was found in a "Jangal" and only his skeleton was recovered, hence, it was required to be proved that the accused have participated in the occurrence. Despite failure of the prosecution to prove the case beyond doubt, an order of conviction has been passed by the trial Court. The prayer is accordingly to cause interference in the order and to acquit the appellants.

Learned Public Prosecutor has opposed the appeals preferred by the appellants. It is submitted that in a case of circumstantial evidence, the prosecution could bring a chain of circumstances to connect the accused with the crime. It is not only the evidence of last seen but evidence for demand of ransom by the accused. The skeleton of the deceased was recovered from a "Jangal" on disclosure of the accused. Nobody else was knowing about availability of dead body of the deceased other than the accused, thus the aforesaid was again a connecting evidence.

The prosecution even produced P - 19, analysed report of call details of Bhawarlal, who gave a call to the complainant Ram Narayan (PW - 2). The call was given to demand ransom of Rs.10 lac and as per the analysis, the call from the accused Bhawarlal has been proved, thus it was another connecting evidence against the accused. It is also that clothes of the deceased were recovered on disclosure of the accused and, again, it was in exclusive knowledge of the accused about availability of the clothes of the deceased. They were found blood stained and it was confirmed to be human blood in the FSL report, thus it has also proved the case against the accused. It is also stated that the accused Bhawarlal came to work at the place of complainant as Machine Man. After working for few days, he did not return on duties and when he was asked, gave information that he would join the duties later on. The excuse of absence was on account of delivery of his wife.

So far as the accused Kailash Chand Rathor is concerned, he has also been connected with the crime. When PW - 2 Ram Narayan received a phone call and while making search of his son Jitendra Prajapat, he reached to the place as per the direction of the accused Bhawarlal and there, the accused Kailash Chand Rathor directed him to pay ransom to a person standing at some distance. The accused Kailash Chand Rathor has also disclosed about availability of body of the deceased and otherwise, the motor-cycle was recovered at his instance. The said motorcycle was taken from PW -9 Amjad Ali and deceased was carried on the said motor-cycle at the place of occurrence. PW - 9 Amjad Ali was produced by the prosecution and he has deposed statement to prove the case of prosecution. In view of the above, the prosecution could bring evidence against the accusedappellants to prove the case beyond doubt. The prayer is accordingly not to interfere in the order passed by the trial Court in the case of both the appellants.

We have considered rival submissions made by learned counsel for the appellants and perused the record.

Brief facts of the case have already been given, thus need not to be reiterated.

After framing of the charges, the prosecution produced PW - 1 Shailendra. He has deposed statement to prove the prosecution case. It was stated that 7 to 8 months back, he visited his uncle Jai Narayan Patidar's house. At around 9.30 to 10.00 AM, he was standing at the main gate. He saw the accused Bhawarlal talking to the deceased Jitendra Prajapat. He gave a call to someone and, thereupon, mobile was given to the deceased Jitendra Prajapat. He was not knowing the deceased but was knowing Bhawarlal. He was even identified him in the Court. He has proved the Exhibit P- 1, site plan of the place where the accused Bhawarlal was last seen with the deceased. The last seen of accused with the deceased was thus proved.

Another witness produced by the prosecution is PW - 2 Ram Narayan, who is otherwise the complainant. It was stated that on 02nd October, 2009, while he was working as Munshi in the Paliwal Stone Factory, his son Jitendra Prajapat was found missing. The deceased went to the school after taking tiffin and, thereupon, the complainant went to the factory to attend his duties. The complainant received a phone call from Jai Narayan at around 6.30 PM. It was informed that Jitendra has gone with someone. The complainant could know that deceased Jitendra was with the accused Bhawarlal at around 10.00. Thereupon, he received a telephone call on his number. The last digit of the phone number was 702 and belongs to the accused Bhawarlal. The payment of ransom of Rs.10 lac was demanded on the call at around 9.09 PM. The accused demanded delivery of ransom at Talvandi Circle.

On the third day, he received a call on landline. When the police visited the place of factory, the accused Kailash Chand Rathor got nervous. He was informed that Jitendra has been taken away in a white colour Van, thus delivery of ransom should be given to them otherwise Jitendra may be killed.

The statements of PW - 1 Shailendra and PW - 2 Ram Narayan have been corroborated by PW - 3 Jai Narayan. It is stated that Jitendra was taken away by someone in the morning and he did not return back thereupon. He has further corroborated about the phone call by him to the complainant Ram Narayan. The information about missing of Jitendra was given.

The prosecution case has further been supported by PW - 7 Pawan Kumar. He has stated about employment of Bhawarlal in the factory. He was asking for an amount of Rs.5,000/- for his wife's delivery. He left the factory after receiving the amount and, thereupon, gave a phone call to PW - 7 Pawan Kumar informing that he would return on duty again after few days. Thus, the said witness has proved working of the accused Bhawarlal for some day.

PW - 9 Amjad Ali has corroborated the prosecution case in regard to the motor-cycle taken by Kailash Chand Rathor and its use. The motor-cycle was demanded by the accused Kailash Chand Rathor while he was at the bus stand. It was informed that the motor-cycle would be returned in the evening. After few days, the police informed about use of motor-cycle for kidnapping of a boy. It was informed by him that due to old relation with Kaliash Chand Rathor, the motor-cycle was given to him. The aforesaid has also been corroborated the story given by the prosecution, as after kidnapping of the deceased, he was taken on a motor-cycle to the place of occurrence.

PW - 10 Nitesh Parmar has also corroborated the statements of the witnesses. He has corroborated the statement of the complainant in regard to receipt of the call for ransom. He has proved the Exhibit P - 4, site plan of recovery of dead body. He has even proved the Exhibit P - 5, recovery of dead body, the recovery of blood smeared soil vide Exhibit P - 6, Exhibit P - 7 is recovery memo of underwear apart from P - 8 recovery of soil. P - 9 is recovery of "Jute" rope and P - 10 is "Panchayatnama" of the deceased.

PW - 12 Abdul Majid has corroborated the statement of PW - 10 Nitesh Parmar and his statement has further been corroborated by PW - 13 Jiven Singh Ranawat. It is stated that during the course of investigation, he had made a comparative analysis of the call details from the mobile number 9694058702. The said SIM was belonging to the accused Bhawarlal. Exhibit P - 19 was proved by the said witness. The analysis of telephone has further proved the prosecution case, as a phone call was received by Ram Narayan from the said mobile number for demand of ransom.

PW - 13 Jiven Singh Ranawat has proved the recovery of skeleton on disclosure of the accused. The recovery of clothes of the deceased was also at the instance of the accused Bhawarlal and Kailash Chand Rathor. In regard to this, Exhibit P- 21 and P - 22, disclosure by the accused has been proved apart from P - 23 and P - 24. It is stated that on disclosure of the accused, a skeleton of the deceased Jitendra Prajapat was recovered apart from his clothes. The blood smeared soil was also recovered vide Exhibit P - 6 apart from the clothes Exhibit P - 7. The other documents have also been proved by the said witness, which includes, sending articles for FSL report.

The prosecution case has been proved by PW - 14 Dr.Sanjay Jain also. He has examined the skeleton recovered by the police and disclosed the age of the deceased. The bones were sent for Dioxyribo Nucleic Acid (DNA) test. He has otherwise prepared the postmortem report (Exhibit P - 44). Exhibits P - 47, P - 48 and P - 49 (DNA report) have also been proved. The DNA test has confirmed the skeleton to be of the deceased. It is after making a comparison with blood samples of deceased's parents. The other witnesses produced by the prosecution have also proved the case against both the accused.

In view of the above, the only argument raised by learned counsel for the appellants that no connecting evidence could be brought by the prosecution to connect the accused with the crime cannot be accepted, rather, the prosecution could bring chain of circumstances to connect the accused with the crime. It is not only the recovery of skeleton of the deceased and even the clothes of the deceased on disclosure of accused but also last seen and even the motor-cycle, on which, the deceased was carried. It is also the call details and analysis of it by Exhibit P - 19.

In the case of Kailash Chand Rathor, witnesses have proved the case against him and, for that, the statement was analysed by the trial Court. PW - 4 Madan Lal and PW - 6 Pritam Singh have supported the prosecution case. It is apart from PW - 5 Babu Lal. PW - 9 Murlidhar in the case of Kailash Chand Rathor has proved the case, thereby, the trial Court after analysing the case of both the accused, convicted and sentenced them for the offences described earlier. The trial Court has analysed the evidence separately in regard to each accused and evidence collected against them.

Taking into consideration the facts aforesaid, we do not find any reason to cause interference in the order of the trial Court. Accordingly, the appeals fail and are dismissed.

Mr.Deepak Soni, Amicus Curiae, appointed by this Court for the accused Kailash Chand Rathor, would be paid fee by the Rajasthan State Legal Services Authority taking it to be his nomination by the Authority itself.

A copy of this order be placed in the connected file.