Rajender vs State of Haryana

Jora Singh, J.—Rajender son of Ram Singh was sent up for trial by the SHO of Police Station Baroda on 3.4.2001, for committing the murder of Mansa Ram on the intervening night of 2-3/4/2001 in the Allah Ala Saeyed Dera of village Banwasa. Vide the impugned judgment dated 16.1.2003 and order of sentence dated 18.1.2003 rendered by Additional Sessions Judge, Fast Track Court, Sonepat in Sessions Case No. 76 of 2001 arising out of FIR No. 47 dated 3.4.2001 registered u/s 302 IPC at Police Station Baroda, appellant was convicted u/s 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-.

Prosecution story, in brief, is that Chand Ram, complainant, resident of Banwasa is the nephew of Mansa Ram, deceased. Mansa Ram aged about 80 years was unmarried. He became Baba and started residing in Allah Ala Saeyed dera situated in village Banwasa for the last 15/16 years as a ''sanyasi''. Complainant used to visit the dera in the morning and evening. On 2.4.2001 in the evening, Chand Ram, complainant had gone to dera. Baba Mansagiri @ Mansa Ram was present in the dera along with Ram Phal, Prem, Partap, Siri Ram all residents of Village Banwasa and Dharam Singh resident of village Nidana. A young person of 30/32 years old of light dark complexion wearing pants and shirt who disclosed his name as Rajender resident of Village Bhatgaon was also present there. One week back he was also seen in the dera while sitting with the baba. Complainant Chand Ram, Ram Phal and Ors. stayed in the dera up to 8:00/9:00 p.m. Thereafter they came back to their houses leaving Baba Mansa Giri and that young man in the dera. In the morning of 3-4/4/2001, Chand Ram had gone to the dera where Prem met him and informed about the murder of Baba Mansa Giri and disappearance of the young man of village Bhatgaon. Dead body of Baba Mansa Giri was lying on the wooden bench. Two wounds with a sharp edged weapon were noticed on the right side of neck of Baba Mansagiri. Information about the incident was given to Hira Singh, Chowkidar and Nafe Singh Sarpanch. After getting the information, Hira Singh, Nafe Singh and many other persons came to the spot. Hira Singh, Chowkidar and Nafe Singh, Sarpanch were deputed to guard the dead body. Chand Ram, complainant had gone to lodge report, and near High School, Baroda, police party headed by Ram Kishan, SI met the complainant where his statement Ex.PF was recorded. After making endorsement at 9:30 a.m, the said statement was sent to the police station, on the basis of which, formal FIR Ex.PP was recorded at 9:45 a.m. Special Report was delivered to the IIlaqa Magistrate at 1:45 p.m on 3.4.2001.

Thereafter, Ram Kishan, SI along with the complainant had gone to the spot. Photographer was arranged. Scene of crime was got photographed. Inquest report was prepared. Dead body was handed over to police officials for post mortem examination. Rough site plan with correct marginal notes was prepared. Blood stained cover of quilt of Baba Mansa Giri was taken into police possession after the same was made into a sealed parcel sealed with the seal bearing impression `DS''. Sealed parcel containing the clothes of the deceased was also produced before the Investigating officer and the same was taken into police possession vide separate memo. Case property was deposited with the incharge of the malkhana.

On 14.4.2001, accused was arrested and suffered disclosure statement Ex.PR when interrogated by SI Ram Kishan in a different case i.e. FIR No. 72 dated 4.2.2001 u/s 302 and 449 IPC, Police Station Safidon. On receipt of information from Police Station, Safidon regarding involvement in this case, the accused, was arrested in this case with permission of Court and was remanded into police custody then suffered disclosure statement Ex.PJ on 18.4.2001. In pursuance of the disclosure statement Ex.PJ accused got recovered Kulhara from the specified place on 19.4.2001. Sketch of the kulhara Ex.PK was prepared. Kulhara was made into a sealed parcel sealed with the seal bearing impression `KS'' and sealed parcel was taken into police possession vide memo Ex. PL. Case property was deposited with the incharge of the malkhana. After the completion of investigation, challan was presented in the Court.

After hearing learned Public Prosecutor for the State, learned defence counsel for the accused and from the perusal of the documents on the file, trial Court opined that a prima facie case was made out to frame charge u/s 302 IPC. Charge was accordingly framed to which the accused did not plead guilty and claimed trial.

Prosecution examined number of witnesses.

PW-1, Dr. Neena Indora, on 3.4.2001 had conducted post mortem examination on the dead body of Baba Mansagiri and found the following injuries:

An incised wound 10 x 3.5 x 3.5 cms over right and front side of neck. Clotted reddish colour blood was present. The injury was 2.5 cms from right pinna of the ear.

An incised wound 9 x 3.5 x 2.5 cms, 2.5 cms from the first wound over right side and front of neck. Post mortem staining was present. Rigor mortis was present in all the voluntary muscles. The membranes of the brain and spinal cord, walls, ribs and cartilages of the thorax, both the pleurae, right and left lungs, larynx and trachea were normal.

There was a fracture of cervical vertebrae 3, 4 in the centre of neck.

Probable time that elapsed between injuries and death was immediate and between death and post mortem was within 36 hours.

Injuries were found to be ante mortem in nature and sufficient to cause death in the ordinary course of nature.

PW-2, Constable Inderpal had prepared scaled site plan Ex.PE.

PW-3, Partap stated that in the month of April 2001, he along with Siri Ram, Ramphal, Prem, Lilu and the accused was sitting in the dera of Baba Mansa Ram. At about 8:00 p.m, they all came back from the dera but Rajender accused remained in the dera. At about 1:00/1:30 a.m during night time, he woke up to answer the call of nature. When he was returning back to his house, then Rajender was seen while coming out of the dera. On enquiry, Rajender replied that he is going to village Kohla for medical aid.

PW-4, Chand Ram is the complainant and stated that on 2.4.2001, he along with Prem, Siri Ram, Partap Singh was present in the dera of Baba Mansa Ram. Rajender accused was also present there. At about 7/8:00 p.m they came back from the dera. Rajender and Baba Mansa Ram remained in the dera. Next day, in the morning, he had gone to dera. Prem met him at the gate of the dera and told him that Baba Mansa Ram has been murdered. Intimation was given to Sarpanch and Chowkidar and after their arrival, he had lodged report Ex.PF with SI Ram Kishan while present near the school of village Baroda.

PW-5, Nafe Singh, Sarpanch stated that on 3.4.2001, he received information regarding the murder of Baba Mansa Giri then he had gone to the dera. There someone informed that Rajender was staying with Baba Mansa Giri. Ram Chander and other present on the spot were discussing about the murder of Baba Mansa Giri.

PW-6, Ram Phal stated that he used to visit the dera of Baba Mansa Giri in the morning and evening. On 2.4.2001, accused Rajender, Ram Chander, Partap, Prem and many other were present in the dera. All came back at about 8:00/9:00 p.m. Rajender remained in the dera. On the next date at about 4:00 a.m, he was informed about the incident. Dead body of Baba Mansa Giri was found lying on the wooden bench.

PW-7, Ram Chander stated that one week prior to the occurrence, accused was present in the dera and on enquiry, he disclosed that he would stay in the dera. Baba Mansa Giri used to stay in the dera alone. He used to supply food to him. He took the accused to his house and provided him with food. During night time, accused had stayed with him and on the next date, he had gone to dera.

PW-8, is Shishan Kumar, Head Constable. Dead body was handed over to him for post mortem examination. After post mortem examination, doctor had handed over a sealed parcel containing clothes of the deceased along with a sample seal and a sealed envelope which was handed over to SI, Ram Kishan. On 18.4.2001, accused was interrogated and in pursuance of the disclosure statement got recovered one axe from the specified place on 19.4.2001.

PW-9, Ranbir had joined the police party on 19.4.2001. Axe was got recovered by the accused in pursuance of the disclosure statement suffered by him in his presence.

PW-10, Kuldeep Singh Constable had tendered his affidavit Ex.PN.

PW-11, Dilbagh Singh stated that about a year ago, he was returning after irrigating his fields and at about midnight, Rajender met him on the way. On enquiry, he replied that he is feeling pain in the stomach and is going for medical aid.

PW-12, Satbir Singh stated that on 3.4.2001, he had delivered special report of the Ilaqa Magistrate.

PW-13, Head Constable Mohinder Singh tendered his affidavit Ex.PQ.

PW-14, Ram Kumar stated that on 14.4.2001 while serving as SHO, Police Station Safidon, he had interrogated Rajender accused present in the Court. Rajender confessed that on the intervening night of 2/3.4.2001, he had murdered Baba Mansa Giri with an axe and after murder, he had kept concealed an axe in heap of paddy. Disclosure statement Ex.PR was suffered in FIR No. 72 dated 4.2.2001. Then message was sent to Police Station Baroda about the involvement of the accused in the murder of Baba Mansa Giri.

PW-15, Shamsher Singh stated that on 3.4.2001, he had gone to the spot and had taken photographs. Positives are Ex.P-8 and Ex.P-9 and the negatives are Ex.P-10 and Ex.P-11.

PW-16, Om Parkash, Head Constable stated that on receipt of statement of Chand Ram, he had recorded formal FIR Ex.PP.

PW-17, Sh. Ram Kishan is the Investigating Officer.

After close of the prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.

Defence version of the accused was that he was falsely implicated in this case.

After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of the evidence on the file, appellant was convicted and sentenced by the trial Court vide the impugned judgment as stated aforesaid.

We have heard the learned Counsel for the appellant, learned State counsel and have gone through the evidence on the file.

Learned Counsel for the appellant argued that appellant is the resident of village Bhatgaon, whereas the deceased was the resident of village Kandela District Jind and was staying in a dera situated in the revenue estate of village Banwasa. Deceased was unmarried and 80 years old. Appellant had no motive to commit the crime. Evidence of last seen is without any evidentiary value. Because all the witnesses of last seen are from village Banwasa. They are very much interested in the success of this case. Lastly recovery of weapon is doubtful. Appellant was arrested in FIR No. 72 dated 4.2.2001 and in that case, he had suffered disclosure statement Ex.PR dated 14.4.2001. Then intimation was sent to the police station Baroda. On 17.4.2001, appellant was arrested then suffered disclosure statement dated 18.4.2001. Weapon was recovered on 19.4.2001. According to the disclosure statement, Ex.PR dated 14.4.2001, weapon of offence could easily be recovered. There was no idea to suffer disclosure statement second time on 18.4.2001. When the Investigating Officer had the information that weapon of offence was concealed under the heap of paddy then weapon could easily be recovered. There was no idea to record the disclosure statement second time on 18.4.2001. Recovery of weapon was on 19.4.2001. Recording of the disclosure statement dated 18.4.2001, Ex.PJ shows that recovery was converted into discovery. When weapon of offence could easily be recovered as per disclosure statement Ex.PR then recording of the disclosure statement Ex.PJ shows that story is not genuine one. Lastly argued that all the incriminating evidence appearing against the accused was not put to the appellant-accused. Appellant-accused was prejudiced when entire incriminating evidence on the file was not put to him.

Learned State counsel argued that deceased Baba Mansa Giri was staying alone in the dera of village Banwasa. One week earlier to the present occurrence, appellant-accused was seen in the dera by Ram Chander. On 2.4.2001, in the evening, appellant was again seen with the deceased in the dera. On 3.4.2001, in the morning, complainant came to know about the murder of Baba Mansa Giri and disappearance of the appellant from the dera. Intimation was given to the Sarpanch, Chowkidar and other respectables of the village. After appearance of the Sarpanch, Chowkidar and other respectables of the village, report was lodged with the police at 9:30 p.m. Appellant was named by the complainant in the FIR. The appellant had no dispute with the prosecution witnesses. There was no idea to concoct story at about 9:30 a.m because at about 4/5 a.m, complainant party came to know about the murder and disappearance of the appellant. If recovery of weapon is considered to be doubtful then evidence of last seen inspires confidence when the complainant-party had no motive of false implication.

As per evidence on the file, Baba Mansa Giri aged about 80 years was unmarried. He was the resident of viilage Kandela District Jind. But 16/17 years prior to the present occurrence, he started residing in the dera known as Allah Ala Saeyed situated in village Banwasa.

Occurrence was on the intervening night of 2/3.4.2001. There was no eye witness. Case is based on circumstantial evidence. Evidence on the file is to be scrutinised with great care and caution to opine whether prosecution is in position to complete the chain of circumstantial evidence.

Complainant, Chand Ram resident of Village Banwasa is the nephew of the deceased and used to visit the dera in the morning and evening. On 2.4.2001, Chand Ram had gone to the dera of his maternal uncle Baba Mansa Giri. In the evening of 2.4.2001, Ram Phal, Prem, Partap, Siri Ram, Dharam Singh were also present in the dera with Baba Mansa Giri. One young man resident of village Bhatgaon, who was also seen in the dera one week earlier to the occurrence, was also present in the dera on 2.4.2001. On enquiry, he disclosed his name as Rajender, resident of Village Bhatgaon. That means on 2.4.2001 in the evening, appellant was seen in the dera with Baba Mansa Giri.

Chand Ram, complainant PW-4, Ram Phal PW-6, Partap PW-3 when appeared in the Court then stated that on 2.4.2001, they had gone to the dera of Baba Mansa Giri. Prem, Siri Ram, Lillu were present there. Accused Rajender was also present in the dera. At about 8/9:00 p.m they came back from the dera to their respective houses. No suggestion was given to the witnesses that they had not gone to the dera of Baba Mansa Giri in the evening of 2.4.2001 or in the evening of 2.4.2001, appellant was not present in the dera with Baba Mansa Giri. After Chand Ram, Ram Phal, Prem, Partap, Siri Ram and Lilu came back from the dera then during night time at about 1:00/1:30 a.m, appellant was seen while coming out of the dera by Partap, PW-3. There was no other person in the dera except deceased and the appellant. Partap stated that during night, he woke up to answer the call of nature and when he was returning to his house then Rajender was seen while coming out of the dera. On enquiry, Rajender replied that he is going to get treatment of his ear.

PW-11, Dilbagh Singh stated that he was returning to his house after irrigating his fields at midnight. Rajender appellant met him on the way and on enquiry, Rajender replied that he is feeling pain in the stomach and is going for getting treatment. Dilbagh Singh, in cross-examination also stated that on 1.4.2001 at 6:30/7:00 p.m, he had seen Rajender in the dera of Baba Mansa Giri.

At about 4:00-5:00 a.m, on 3/4.4.2001, complainant came to know about murder of Baba Mansa Giri. Chand Ram complainant had gone to the dera then near the gate, Prem Singh informed him about the murder of Baba Mansa Giri. At that time, appellant was missing from the dera. Dera was at a distance of 4-5 killas from the house of Partap, who had seen the appellant in the dera with the deceased on 2.4.2001 and at about 1;30 a.m on 3.4.2001 while coming out of the dera. Deceased was residing alone in the dera but only a week earlier to the present occurrence, appellant was seen present in the dera.

Ram Chander, PW-7 had also seen the appellant while present in the dera, a week prior to the occurrence. On enquiry, appellant had told Ram Chander that he is to stay in the dera. Then Ram Chander reported that Baba Mansa Giri resides alone in the dera and his food is supplied by them. Thereafter, on request of Ram Chander, appellant had stayed for one night at his house and on the next day, he had gone to dera. Only suggestion given to Ram Chander was that he has deposed falsely. No question was put to Ram Chander that one week prior to the present occurrence, appellant was not seen in the dera. Secondly, on request of Ram Chander, appellant had not stayed for one night at his residence. When a particular fact is stated in examination-in-chief and there is no cross-examination then presumption is that opposite party has admitted the fact as stated in the examination-in-chief as correct one. Chand Ram is the nephew of the deceased but Partap , Ram Phal, Nafe Singh, Sarpanch, Dilbagh Singh are not related to the complainant. They had no enmity with the appellant. All these PWs were not expected to join and concoct story to implicate the appellant when appellant was not inimical towards them. Occurrence was on the intervening night of 2-3/4/2001. Appellant was with the deceased. At about 1:30 a.m on 3.4.2001 during night time, appellant was seen while coming out of the dera. That means the unnatural death was after 8-9 p.m on 2.4.2001 and before 1-1:30 a.m on 3.4.2001. At about 4-5:00 a.m on 3.4.2001, Chand Ram, complainant came to know about murder of Baba Mansa Giri. Then intimation was given to the Sarpanch and Chowkidar. After arrival of Hira Singh, Chowkidar and Nafe Singh, Sarpanch then complainant had gone to lodge report and at about 9:30 a.m, statement of Chand Ram, complainant was recorded. Appellant was young man. Special report was received by the Illaqa Magistrate at 1:45 p.m on 3.4.2001. In the morning of 3.4.2001, appellant resident of village Bhatgaon was named. When the witnesses of last seen had no enmity with the appellant then we are of the opinion that their statements inspire confidence. No reason to disbelieve them.

As discussed earlier, appellant resident of village Bhatgaon started residing with the deceased, one week earlier to the occurrence. In the FIR, allegation is that due to greed of money, Baba Mansa Giri was murdered, but in Court no cogent and convincing evidence was led to suggest that appellant had the motive to murder. At the same time, complainant-party was not inimical towards the appellant. Question is what was the reason for the complainant-party to leave the real culprit and name the appellant immediately after the complainant came to know about the murder of Baba Mansa Giri. Motive is a double edged weapon. Motive is always in the heart of the accused. When deceased was residing alone in the dera and was bachelor and one week earlier to the occurrence, appellant had started residing with the deceased in the dera then very difficult for the prosecution to collect evidence as to what was the motive to murder. Sometimes without motive, heinous crimes are committed. In case the prosecution fails to lead cogent and convincing evidence qua motive then on this short ground, story is not to be ignored when there is natural and reliable evidence of last seen.

FIR No. 72 dated 4.2.2001 u/s 302 IPC was registered in Police Station Safidon and in that FIR, appellant was arrested on 14.4.2001. Appellant suffered disclosure statement Ex.PR. In view of the disclosure statement, intimation was given to police station Baroda, then with the permission of Court, appellant was formally arrested in this case. Appellant was produced in the Court then he was remanded to police custody. While in police custody, appellant had suffered disclosure statement Ex.PJ then in pursuance of the disclosure statement got recovered weapons from the specified place and this fact is clear from the statement of PW-14, SI Ram Kumar Nain and PW-17, SI, Ram Kishan who is the Investigating Officer in this case. Weapon of offence was recovered on 19.4.2001. When the appellant in FIR No. 72 u/s 302 IPC was arrested then on interrogation he had suffered disclosure statement Ex.PR. Copy of disclosure statement, Ex.PR was collected by the Investigating Officer of this case. From the copy of the disclosure statement, Investigating officer had information about the place of concealment of axe Ex.P-5. When Investigating Officer had the knowledge as to where the weapon was concealed then without recording the second disclosure statement Ex.PJ dated 18.4.2001, recovery could easily be effected.

In Chanan Singh v. State of Punjab 2003 (3) Cri.C.C 29, learned Single Judge of this Court opined that under Rule 25-A of Punjab Police Rules, 1934, recovery of fire arm effected by police officer from area over which he had no territorial jurisdiction is violation of Rule 25.3. of Police Rules. That means in view of the disclosure statement Ex.PR, Investigating Officer of FIR No. 72 was not in a position to effect recovery of axe used in the commission of crime. But one thing is clear that after getting the copy of disclosure statement Ex.PR dated 14.4.2001, SI Ram Kishan, Investigating Officer had the knowledge as to where the weapon was concealed. So without recording disclosure statement Ex.PJ recovery could easily be effected. There is no provision that weapon is to be recovered only in pursuance of the disclosure statement.

As per disclosure statement, Ex.PJ and recovery memo, blood stained axe was recovered. Sketch of the weapon was prepared and the same was sent to laboratory. Ex.PO is the report of Forensic Science Laboratory. But according to the report, blood could not be detected on Kulhari Ex.P-5. When the weapon recovered on 19.4.2001 was found to be stained with blood then no explanation from the side of prosecution how the blood could not be detected on the recovered weapon. So all these factors shows that recovery was converted into discovery. In Aher Raja Khima Vs. The State of Saurashtra, , Hon''ble Supreme Court opined that information and discovery of incriminating articles alleged to have been recovered by accused is inadmissible in evidence when police party already knew where they were hidden. In the present case, Investigating Officer had the knowledge of the place, where the weapon was concealed. Report of the Forensic Science Laboratory to the effect that blood could not be detected on the weapon when clear cut case of the prosecution that weapon recovered was found to be stained with blood, shows that recovery of weapon Ex.P-5 seems to be doubtful but if recovery of weapon is presumed to be doubtful then the prosecution story is not to be brushed aside when there is overwhelming cogent and convincing evidence of last seen on the file that on the intervening night of 2/3.4.2001, appellant was with the deceased in the dera. Appellant had not stated a word when examined u/s 313 Cr.P.C that one week earlier to the occurrence he had not gone to the dera or on the intervening night of 2/3.4.2001, he had not stayed with the deceased in Allah Ala Saeyed Dera.

Last submission of the learned Counsel was that entire incriminating evidence on the file appeared against the appellant was not put to him. Failure to put the entire incriminating evidence when statement of the appellant was recorded u/s 313 Cr.P.C shows that appellant was prejudiced but we are of the opinion that submission of the learned Counsel for the appellant carries little weight. We have gone through the statement of the appellant u/s 313 Cr.P.C and are of the opinion that entire incriminating evidence was put to the appellant specifically as per question No. 17, which reads as under:

Ques.17. That PWs, Partap, Chand, Nafe Singh and Ram Phal and Ram Chander have deposed that you were seen by them at the time of your gathering at the dera. What do you say?

Ans. It is incorrect

If we presume that some of the incriminating evidence was not put to the appellant then no reason to ignore the prosecution story. From the very beginning, case of the prosecution was that on the intervening night of 2/3.4.2001, Baba Mansa Giri was murdered by the appellant and in the evening on 2.4.2001and appellant was with the deceased in the dera and during night time, appellant was seen while coming out of the dera. In State of Punjab v. Sawaran Singh 2005 (3) RCR (Cri) 889, it was observed as under in para 9 of the judgment:

The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he given full opportunity to cross examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial, the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the Court evaluating the evidence properly, the Court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to accused bundling so many facts together.

Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.

In the present case also, copies of the statements of prosecution witnesses u/s 161 Cr.P.C and copies of the relevant documents were supplied to the appellant. Secondly, evidence was also recorded in the presence of the appellant and his counsel. If specifically some evidence was not put to the appellant while recording his statement u/s 313 Cr.P.C then we are of the opinion that no prejudice was caused to the appellant because full opportunity was given to him to defend himself. Despite opportunity to lead defence, no defence was led.

For the reasons recorded above, we are of the opinion that evidence on the file was rightly scrutinised by the trial Court. There is no infirmity and illegality in the impugned judgment and the same is upheld and the appeal without merit is dismissed.