Chhotu vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—On the intervening night of 25/26 of April, 2005, at Alanpur Kagaji Mohalla, District Sawai Madhopur, Karim Khan aged 65 years and his wife Jummi aged 60 years, were found murdered in their residential house. From the residential house, theft of household articles, jewellery, watch, TV, suitcase and cash was also committed.

Munna Khan (P.W.7) presented a written report (Exhibit-P/1) before S.I. Bachchu Singh (P.W.27), who on 26.4.2005 was posted as second In-charge of Police Station Kotwali, Sawai Madhopur.

S.I., Bachchu Singh (P.W.27) in the court deposed that on 26.4.2005 morning he received a telephonic information that in a residential house at Alanpur, an old man and old woman have been murdered. This witness reached at the spot. Mob had gathered there. This witness went inside and found dead bodies of both on two separate cots. Munna Khan (P.W.7) had presented the written report (Exhibit-P/1). The said report for registration of case through Constable Mangi Lal was sent to police station for registration of the case. On the basis of the written report (Exhibit-P/1), a formal FIR (Exhibit-P/2) bearing No. 142/05 was registered at Police Station, Kotwali, Sawai Madhopur.

The above said FIR was investigated and during investigation, accused appellant Chhotu @ Rafiq S/o. Hameed Bhai along with Mohammad Ramjani S/o. Chand Khan @ Abdul Samad Khan were nominated as accused. A charge-sheet was presented against them and they were sent for trial. The charge-sheet was committed to the court of Sessions and was entrusted to Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur. The said court vide impugned judgment dated 23.11.2006, convicted both Mohammad Ramjani and Chhotu @ Rafiq for the offences under Sections 302, 460 IPC and Section 382 IPC. Vide a separate order of even date, the trial court sentenced them as under:

"U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo three months additional R.I.

U/s. 460 IPC- to undergo ten years R.I., and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo three months additional R.I.

U/s. 382 IPC- to undergo seven years R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine to further undergo three months additional R.I."

Chhotu @ Rafiq aggrieved his conviction and sentence has preferred the present appeal, whereas Mohammad Ramjani accepting his conviction and sentence has opted not to file any appeal.

In the present case, the conviction of the appellant rests on the circumstantial evidence, as prosecution has not brought on record any direct evidence. To secure the conviction of the appellant, the prosecution has proved following three incriminating circumstances against the appellant:-

"(i) Both the accused were last seen with the deceased and on the night of occurrence both the accused were seen together in a red colour Maruti Car.

(ii) That both the accused got weapons of offence recovered. Chhotu @ Rafiq got recovered sandasi vide memo Exhibit-P/9 in pursuance of disclosure statement (Exhibit-P/25). Mohammad Ramjani got recovered iron wire about 3" x 3.75" long, used to commit murder.

(iii) Accused also got recovered articles stolen from the house of the deceased."

Munna Khan (P.W.7) in his written report (Exhibit-P/1) stated that they are seven brothers and three sisters and all are married. All brothers are residing separately. Their parents are also residing separate in their own house. In the morning at about 7:00 AM, he came in the colony and heard cries of his maternal aunt (Masi). She was coming out of the house of parents. This witness went there running and found that his mother Jummi and father Karim Khan were lying murdered in the courtyard. There was a ligature mark on the neck and in the abdomen injuries were caused with knife. Blood was lying around the dead bodies and the household articles were lying scattered. Some unknown persons after committing murder had taken away, gold earrings of the mother, one Taveez worn around the neck, one colour T.V. of Soni, CD Player, one briefcase, about 5-6 kg of silver and cash of Rs. 1 lakh. Munna Khan (P.W.7) prayed for registration of the case.

Dr. M.L. Kanwat (P.W.4) alongwith Dr. V.K. Batra, Dr. Mohd. Akram Khan (P.W.5), Dr. Shailendra Choudhary (P.W.6) constituted a Medical Board and conducted autopsy on the dead body Jummi aged 60 years and Karim Khan aged 65 years. Post Mortem Report has been proved on record as Exhibit-P/5. As per Post Mortem Report (Exhibit-P/5) following injuries were found on the person of Jummi:-

"(i) Both ear lobules torn with dry clotted blood around.

(ii) 1/4 cm wide, ligature mark transversely placed anteriorly placed over the thyroid cartilage (not above) bifurcating laterally on left side where the two marks are 1/2 cm apart. Reddish brown in colour. Upper limb of the bifurcation lies 5cm below the angle of left mandible.

On dissection all underlying soft tissue of neck including thyroid cartilage, hyoid bone and trachea are healthy.

(iii) Stab incised wound - 5 cm x 1 cm x abdomen cavity deep, transversely placed laterally and on right side to the umbilicus. Bright red, dry clotted blood present around it. A loop of transverse colon protruding from it. On dissection wound was seen piercing obliquely upwards with haematoma underneath wound. Subcutaneous tissue was pale.

(iv) On further dissection, two wounds were seen on the inferior aspect of right lobe of liver of size 4 cm x 1 cm x 2 cm deep and 2 1/2 cm x 1 cm x 2 cm deep lying parallel to each other with a distance of 3cm. Haematoma of about 1500 ml present.

The nature of abdominal injuries is suggestive of being inflicted by sharp cutting weapon. All the injuries are ante mortem in nature and fresh before death."

In the opinion of the Board, the cause of death was hemorrhagic shock as a result of injury to the vital organ liver.

Dr. M.L. Kanwat (P.W.4) also proved on record Post Mortem Report (Exhibit-P/6) of Karim Khan and had noted following injuries on the person of Karim Khan:-

"(i) 1/4 - 1/2 cm wide, reddish brown coloured, ligature mark, obliquely transversely placed over the neck, encircling the neck, anteriorly above the thyroid cartilage, proceeding obliquely upwards and reaching just below (1/2 cm) the angle of mandible on left side. On right side it is 6 cm below the angle of right mandible. The mark faints posteriorly, with a gap of about 3-4 cm on the nape of neck.

On dissection underlying tissues, muscles, neck wounds, trachea, thyroid cartilage and hyoid bone are healthy except subcutaneous, red haematoma underneath the ligature mark at thyroid cartilage eminence, in an area of 2 cm x 1/2 cm.

(ii) Below the above mentioned main mark, there are two more, comparatively faint red mark transversely placed below the thyroid cartilage, 3 cm apart, laterally on left side joining the main mark, with underlying tissues healthy on dissection.

(iii) Punctured incised wounds- 8 in number with dry blood, varying in size from 3/4 - 1/2 cm Abdomen deep, at a distance of 1-3 cm from each other, placed around the umbilicus - 4 cm above and 4 cm below umbilicus.

On dissection two wounds above the umbilicus were abdomen deep.

On further dissection two incised wounds 2 cm x 1/4 cm x Serosa deep, were seen on the anterior aspect of caecum.

3 (three) cuts were seen in the mesentary of leo-jejunal gut loops, varying in size from 4-6 cm, with a hemoperitoneum of about 1.5 litre.

All above injuries are ante mortem in nature and fresh before death. The nature of abdominal injuries is suggestive of being caused by sharp pointed weapon."

As per opinion of Medical Board, the cause of death was hemorrhagic shock as a result of injuries to the vital parts and mesenteric vessels.

Dr. Mohd. Akram Khan (P.W.5) and Dr. Shailendra Choudhary (P.W.6) also proved the post mortem report, which were conducted by them being members of the Medical Board.

Mr. Surendra Sharma, the learned counsel for the appellant, has submitted that in all the prosecution has examined thirty-three witnesses. Out of which, six are police officials, three witnesses are doctors who conducted autopsy and fourteen witnesses are relatives of the deceased and other witnesses have turned hostile to the prosecution. The learned counsel for the appellant further contended that the evidence of last seen collected by the prosecution is not trustworthy and not sufficient to arrive at the conclusion that the appellant with an intention to commit offence, were found near to the place of occurrence. It is further contended that the recovery of weapons and articles is a crude padding only to secure conviction of the appellant and furthermore, the investigating agency had carried manipulations by fabricating record to show that the alleged articles were recovered from the appellant.

We shall first deal with the evidence of last seen.

Munna Khan (P.W.7), the first informant deposed in the court that on 25.4.2005 at about 8:00 PM he was called by his father, as he had dispute with another brother Bashir over the drain. When he reached at the house of his father, Chhotu @ Rafiq and Mohammad Ramjani along with his wife were sitting with parents. This witness further stated that both, almost daily used to visit his parents. This witness further stated that in the night after leaving accused there, he returned to his house and slept and in the morning learnt about the death of parents when maternal aunt came out of the house of parents wailing. This witness has also deposed regarding recovery of TV (Article-1), CD Deck (Article-2), Speakers (Article 3 and 4) and other eleven articles being Articles No. 9 to 29. This witness stated that two golden earrings are Article No. 27 and 28, which were worn by her mother in the ear and same were snatched after piercing her ears.

Jahira (P.W.9) in the court stated that Chhotu @ Rafiq who was a tenant in the house of elder brother of her husband (Jeth), he used to come to house in white car, but from last four/five days, he was bringing red colour vehicle. This witness further stated that she knew the accused and they were residing near to their house.

Rasheed (P.W.10) in the court stated that he was doing work of tailoring. After closing shop at 8:00 PM, he came to his house. His wife was cooking meals. Meanwhile, Jummi came and he asked her to take food. This witness further stated that in the night, at 10:00/10:30 PM, he had seen Chhotu @ Rafiq alongwith Ramjani in the bazar. This witness stated that on the day of occurrence, Chhotu @ Rafiq was doing work of denting and was having red colour car in his possession belonging to one Ansari.

Yaseen (P.W.11) son of the deceased stated that he is doing work of tailoring. On 25.4.2005, on the day of occurrence, at 9:00 PM, when he had gone to bazar to purchase sugar, he had seen his mother sitting with the wife of Chhotu @ Rafiq. Then he went to his house and started working in his house. At 11:00 PM, from the house of parents voices were coming. They were talking with their neighbour Gafoor. He kept on doing tailoring work and in the night at 2:30 AM, when he came outside the house, he saw that Chhotu @ Rafiq and Mohammad Ramjani were coming out of the house of his parents and were going in a red colour jeep. At that time, street light was on and he had identified the accused.

Nazma Bano (P.W.12) in the court stated that she had seen Chhotu @ Rafiq who is present in the court alongwith his wife Mehrunisha visiting the house of his in-laws and another accused Mohammad Ramjani was shown to her at the police station.

The testimony of relations regarding last seen is duly corroborated by the statement made by Hari Singh (P.W.1). This witness stated that he was posted as ASI at Police Station Kotwali. On the night of the occurrence at 12:05 AM, he was doing patrolling along with the driver of the jeep Bharat Lal (P.W.2), and official of the home guard. They were coming from Sawai Madhopur city to railway colony Binoba Basti. When a red colour Maruti Car came, the said vehicle was stopped. In that vehicle two persons were sitting. One of them was Chhotu @ Rafiq, who was doing the work of denting and painting. There were no articles in the jeep and vehicle was made to go.

Bharat Lal (P.W.2) the driver of the police jeep also stated that they were doing patrolling. When they stopped red colour Maruti car, bearing No. RJU 5959, said vehicle was being driven by Chhotu @ Rafiq and one another person was sitting alongwith Chhotu @ Rafiq.

Thus, from the testimony of Yaseen (P.W.11) it is proved beyond doubt that in the night at 2:00/2:30 AM, the accused were coming out of the house of the deceased, where both the dead bodies were found. It has also come in evidence that before entering into the house both were together and were travelling in red colour Maruti car and both the accused were found together by the police officials namely Hari Singh (P.W.1) and Bharat Lal (P.W.2).

It has come in the evidence that relations of the accused Chhotu @ Rafiq and Mohammad Ramjani with deceased Jummi and Karim Khan were cordial and they often used to visit them.

However, Mr. Alladdeen Khan, the learned Public Prosecutor has stated that out of greed both the accused in the night committed the murder and took away valuable articles belonging to deceased old couple. Since the relations between the parties were cordial and they were on visiting terms to the house of deceased old couple who were found dead, we cannot ignore the testimony of Yaseen (P.W.11) who had seen the accused coming out of the house of deceased couple in the night of occurrence at 2:00/2:30 AM.

Considering that the accused were on visiting terms, Yaseen (P.W.11) was not expected to raise hue and cry and he will be the last person to falsely implicate the accused. Once we hold that on the night of occurrence at 2:00/2:30 AM, the accused were coming out of the house of deceased, it is for the accused to explain as to how old couple died as a result of violence. No explanation is forthcoming.

The evidence of last seen is fully fortified by the recovery of stolen articles from the accused.

Chhotu @ Rafiq, on 2.5.2005 made a disclosure statement (Exhibit-P/25), wherein he stated that he kept concealed in a room taken on rent one iron sandasi, one attachi black colour, one colour T.V. of Soni, CD deck and two big and two small speakers.

Chhotu @ Rafiq on 8.5.2005 made another disclosure statement (Exhibit-P/27) and therein he stated that he kept concealed in a rented house two golden earrings wrapped in a polythene bag.

It is to be noted that Chhotu @ Rafiq was arrested on 1.5.2005 vide memo Exhibit-P/14. Chhotu @ Rafiq got recovered iron sandasi black colour attachi, on which numbers were written and on the side Imammuddin Alanpur was written with the marker pen. Accused also got recovered twelve clothes, one T.V. Soni 42 cm, on which Imammudin Alanpur was written and one CD deck, two big and two small speakers, on the said articles Imammudin Alanpur was written. Recovery memo was witnessed by Abdul Kalam (P.W.14) and Abdul Wahab (P.W.15).

Abdul Kalam (P.W.14) and Abdul Wahab (P.W.15) have turned hostile to the prosecution. But we cannot ignore the fact that the recovery memo Exhibit-P/9 was prepared by S.I., Bachchu Singh (P.W.27). Bachchu Singh (P.W.27) in the court deposed that the accused Chhotu @ Rafiq in Maruti car bearing No. RJU 5959 belonging to Ansari had transported TV, CD deck, speakers, attachi and gold articles and kept the same in the house of one lady named Asma. The said vehicle during patrolling on night of occurrence was also seen by ASI Hari Singh (P.W.1) and the driver Bharat Lal (P.W.2). Bachchu Singh (P.W.27) further stated that Chhotu @ Rafiq in pursuance of disclosure statement (Exhibit-P/25) had taken police party to the house of Asma and had got recovered TV, CD deck, two big speakers and two small speakers, and one suitcase, which had twelve articles. On attachi and T.V., and on said articles Imammudin Alanpur was written. It is pertinent to mention that Imammudin is son of the old couple who was murdered and it has come in the evidence of Rahimmudin (P.W.20) that elder brother Imammudin is residing in Saudi Arabia and he had sent goods to his parents.

The Investigating Officer has further stated that in pursuance of disclosure statement (Exhibit-P/27) vide memo Exhibit-P/15, Chhotu @ Rafiq got recovered two gold earrings belonging to the deceased Jummi. Seizure memo of two gold earrings (Exhibit-P/15) was prepared on 8.5.2005 and is attested by Mohammad Ismail Khan (P.W.18) and Kishan (P.W.19). Both the witnesses have stated that accused Chhotu @ Rafiq had got recovered two golden earrings (Article 27 and Article 28) from his house. In Post Mortem Report, ears of Jummi deceased to whom gold earrings belonged were found atorned.

Similarly, Mohammad Ramjani had made disclosure statement (Exhibit-P/26) on 2.5.2005 and stated therein that he has kept concealed one iron wire, one silver Anwala (a part of jewellery worn in foot), one pair of silver Lachcha, one silver ring and ladies watch Citizen, in Maliyon Ki Bagichi, beneath the ground near North Wall of Sita Ram Ji Ka Mandir. In pursuance of disclosure statement (Exhibit-P/26), Mohammad Ramjani accused got recovered above said articles vide recovery memo Exhibit-P/11.

Recovery memo (Exhibit-P/11) was attested by Suleman Khan (P.W.16) and Mangu (P.W.17). They have proved recovery of two silver Anwla, being (Article Nos. 21 and 22), one pair of Lachcha (Article No. 23 and 24), one ladies watch (Article No. 32), one silver ring (Article No. 26) and iron wire (Article No. 29).

Thus, the prosecution has not only proved the fact that the accused were last seen with the deceased but has also effected recovery of stolen articles from the accused, of which they have committed theft from the house of deceased old couple. We may mention here that all the articles belonging to the deceased have been duly identified by their children including daughters, who had appeared in the witness box.

Thus, we find no merit in the argument raised by the learned counsel for the appellant that since witnesses are interested, we should not place reliance upon them. In the present case, the accused were on good terms with the deceased old couple. Thus, the witness will be last person to substitute the real accused. It is a classic case where people who were visiting house and were trustworthy, out of greed had committed the murder of an old couple.

Taking totality of circumstances, we are convinced that the prosecution has succeeded to prove the chain of circumstances to arrive at a conclusion that it is only the appellant who had committed the offence and nobody else.

Consequently, we find no merit in the present appeal and the same is dismissed by affirming the conviction and sentence of the appellant.