Ramvilas vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—On 26th of January, 2006, Dataram (PW-5) was manning Gate No. 472 on the Railway Line. His duty hours were from 12:00 o''clock in the night to 08:00 o''clock in the morning. He learnt that the dead-body was lying between two railway lines. On the directions of the Supervisor, he lodged written-report (Exhibit-P/5).

The said written-report (Exhibit-P/5), when translated into English reads as under:-

"To,

The Station House Officer, Maniya, District Dholpur (Rajasthan),

Sir,

It is submitted that some unknown person has been run over by the train. His dead-body is lying at 1310/2-4 E.P. (Pole) Down Road. Necessary legal action be taken."

PW-5 Unit No. 49. A. Sd/- B 26.01.2006"

Assistant Sub-Inspector, Police Station, Maniya, Raghuveer Singh (PW-16) on receipt of above said written-report (Exhibit-P/5) proceeded to the spot. He took into possession dead-body, which was identified by Suresh (PW-6). He carried inquest proceeding vide Exhibit-P/6 and made description of the place of occurrence vide Exhibit-P/11, which was attested by Suresh. He had sent the dead-body for the Post Mortem. Ranveer (PW-12) had also attested site-plan of the spot. He also attested memo Exhibit-P/14, whereby blood stained soil, controlled soil and simple soil were taken into possession. Ranveer (PW-12) whoever on other material facts has not supported the prosecution case and was declared hostile.

After needful was done, Ram Sahay (PW-10) had submitted a written-report (Exhibit-P/18) on 26.01.2006 at 05:00 P.M. On the basis of the written-report (Exhibit-P/18) a formal F.I.R. (Exhibit-P/19) was registered.

What is required to be noticed here is that the dead-body was discovered on 26th of January, 2006 at 08:00 A.M., Police reached at the spot at 09:40 A.M., carried the entire proceedings and thereafter, Ramsahay (PW-10), presented written-report (Exhibit-P/18) on 26th of January, 2006 at 05:00 P.M. before Rajesh Pathak (PW-15), who was then posted as Station House Officer, Maniya.

The said written-report (Exhibit-P/18), when translated into English reads as under:-

"To,

The Station House Officer, Police Station, Maniya

Sir,

It is submitted that yesterday i.e. on 25.01.2006 at about 06:00 P.M. Ramdas s/o. Lakhpati Gurjar, resident of Kuseda-Gurjar was dragged by Mahendra and Raghuveer sons of Gulab Singh, Autar and Ramsahay sons of Narayan Singh, Haripali son of Vaidiya, Gopal son of Ramcharan, Katto son of Rambharosi Gurjar, residents of Kuseda-Gurjar, Lakhan Gurjar, resident of Tilonda District Murena, Rajaram son of Natthi and Gangaram son of Rajaram, by caste Jatav, resident of Kuseda-Gurjar. Ramvilas son of Hari Singh Gurjar had seen the above said persons at Saiya Railway Crossing having caught hold of Ramdas s/o. Lakhpati Gurjar. Information to this effect was given to me in the morning of 26th of January, 2006 by Ramvilas, at my house. We had seen Ramdas with the above said persons of the vicinity, and the dead-body of Ramdas has been found on the railway line near Bavri''s gate. The above said persons have murdered Ramdas and with the intention to conceal the evidence, they had put the dead-body on the railway track. Report is submitted for legal action."

A Sd/- B Applicant

Ramsahay Ramsahay s/o. Rambharosi by caste Gurjar resident Kuseda Gurjar Police Station, Maniya Dated 26.01.2006"

A perusal of above written-report (Exhibit-P/18) reveals that the present appellant Ramvilas had given information that the deceased was caught hold by number of persons. This information was also relayed by him to Ramsahay (PW-10).

In the present case, there is no direct evidence available with the prosecution and the prosecution case rests upon circumstantial evidence.

The Court of Additional District & Sessions Judge, (Fast Track), No. 2, Dholpur, vide its impugned judgment dated 06.10.2006, convicted the present appellant for offences punishable under Sections 302/34 and 201 of Indian Penal Code and having convicted the appellant for the above said offences, vide a separate order of even date, sentenced the appellant as under:-

"For offence under Section 302/34 I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 3000/-. In default of payment of fine to further undergo two years additional simple imprisonment.

For offence under Section 201 I.P.C. the appellant was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo six months additional simple imprisonment.

Both the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, the appellant has preferred present appeal under Section 374 of Code of Criminal Procedure, 1973, in order to assail his conviction and sentence.

In the present case, the prosecution agency, during trial, had examined, in all sixteen-witnesses and also proved on record twenty-two documents, being Exhibit-P/1 to Exhibit-P/22 respectively.

The statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973. He denied all the incriminating evidence put to him, pleaded innocence and took a stand that he has been falsely implicated.

In defence, accused had examined Sobran Singh (DW-1).

To convict the appellant, in Para 35 of the impugned judgment, the trial Judge has placed reliance upon the testimony of Mahaveer (PW-8), who had last seen the deceased with the present appellant and co-accused, Shiv Singh and on the testimony of Ramsahay (PW-10).

The trial Court held that Mahaveer (PW-8) had last seen the deceased on the night of 25th of January, 2006 at 08:00 P.M. Thereafter, Babu Lal (PW-11) on 25.01.2006 at 08:45 P.M. had seen the present appellant, along with the co-accused, Shiv Singh and at that time deceased was not with them.

The trial Court held that there is a motive on the part of the appellant to eliminate Ramdas, as the appellant was having illicit relations with Smt. Vimla, the wife of deceased and furthermore, the appellant had relayed wrong information to Ramsahay (PW-10) and his conduct, after the incident is not of an innocent person.

It will be apposite to reproduce here Paras 34 and 35 of the impugned judgment as under:-

To appreciate the findings returned by the trial Court and the arguments raised by Mr. Rajeev Sogarwal, the learned counsel appearing for the accused-appellant and Mr. N.S. Dhakad, the learned Public Prosecutor appearing for the State of Rajasthan, we shall first recapitulate the evidence led by the prosecution.

Smt. Vimla (PW-1), is wife of Ramdas, deceased. In the Court, she stated that she was earlier married with Gopal, the elder brother of Ramdas. From her womb and loins of Gopal, three children were born. Subsequently, Gopal died an unnatural death. Thereafter, she was married with his younger brother, Ramdas. She stated that from her womb and the loins of Ramdas, deceased two children were born and she is not aware as to how Ramdas was killed. This witness was declared hostile to the prosecution case.

In cross-examination by learned Public Prosecutor, this witness (PW-1) stated that Ramdas was addicted to alcohol and gambling. He had sold his field. He used to harass her and the family members. She further stated that her sister-in-law (nanad) was married at Maharajsingh-ka-pura and Ramvilas is the son of her sister-in-law. However, she denied the suggestion that she is having illicit relations with the accused.

Sonu (PW-2), nephew of deceased has not supported the prosecution case and was declared hostile.

Ramji Lal (PW-3), being an owner of a ''dhaba'' stated that on 25.01.2006 at 06:00 P.M. whether somebody came on the motorcycle in the evening or not, he is not aware. He has not disclosed the name of anybody to the Police. This witness has not supported the prosecution and was declared hostile.

Kamal Singh (PW-4), being salesman at liquor vend from whom allegedly deceased and accused had purchased liquor, has also not supported the prosecution case and was also declared hostile.

Suresh (PW-6) had attested inquest proceedings vide Exhibit-P/6.

Autopsy on the dead-body was conducted by Dr. Yogendra Gupta (PW-7) and it was opined by the Medical Board that cause of death was asphyxia due to strangulation. He ruled out train accident.

Mahaveer (PW-8), being star witness of prosecution case, has admitted, in the Court, that his father, Lajjaram, and Lakhpat, the father of deceased are real brothers. This witness stated that on 25.01.2006 he travelled from Jaitpur to the house of Angoori, the daughter of his uncle. This witness left his house at 06:00 o''clock in the morning. This witness travelled in a jugad (cart fixed with engine) to Maniya. From Maniya, he came to Saiya in a Jeep. He reached at Saiya at 08:00 P.M. He saw a red colour motor-cycle driven by Ramvilas and on said motor-cycle Ramdas was a pillion rider sitting on the middle and one Shivsingh was sitting behind him. The witness called Ramvilas, but Ramvilas had not stopped bike. Then a bus came from Kheragarh and in the light of the bus, he noted the number of the motor-cycle as U.P. 0446. The witness left towards Maharajsingh-ka-pura and the present appellant, along with the deceased had gone towards Maniya. The witness stated that accused, Ramvilas alone came to the house at 10:30 P.M. on the motor-cycle. The witness asked Ramvilas regarding whereabouts of Ramdas. Ramvilas denied the same. This witness stated that he had seen Ramdas with Ramvilas from his own eyes, but Ramvilas refused. The witness further stated that the wife of deceased Ramdas had developed illicit relations with accused, Ramvilas and, therefore, Ramdas has been murdered by Ramvilas and co-accused Shiv Singh. Lastly, this witness stated that in his presence, Police had recovered one muffler on the disclosure statement made by the accused vide Exhibit-P/9.

We may notice here that even though witness, Mahaveer (PW-8) had last seen the deceased with the present appellant, his statement (Exhibit-D/1) under Section 161 Cr.P.C. was recorded by Station House Officer, Police Station, Maniya on 27.01.2006.

We find that the conduct of witness Mahaveer (PW-8) and his presence at Saiya are highly improbable. This witness (PW-8) is resident of Jaitpur-Rajakhera, (Dholpur), whereas the present appellant is resident of Maharajsingh-ka-pura, Police Station, Saiya, District Agra (Uttra Pradesh). The witness, Mahaveer (PW-8) purportedly for borrowing Rs. 2000/- from one Angoori travelled from his Village to Maniya. From Maniya to Saiya he travelled in a jeep. At about 08:00 P.M., he reached Saiya, where he saw a red colour motor-cycle driven by Ramvilas on which Ramdas was sitting in the middle and one Shivsingh was sitting behind him. Thereafter, he saw the registration number of motor-cycle in the light of the bus coming from the side of Kheragarh. Then this witness went to the Village of accused.

The witness (PW-8) is a close relative of the deceased. His presence at the nick of the time when deceased and accused were traveling, is too big a chance and furthermore, in the month of January, 2006 when the entire north india is engulfed with the fog in the night, witness (PW-8) saw accused and deceased coming on motor-cycle accompanied by another person Shivsingh is highly improbable. The witness in the Court stated as under:-

The witness left his Village at 06:00 A.M., from there he came to Pahari, from there he came to Murena. From Murena, he came to Maniya. From Maniya he came to Saiya, there he had to proceed to Maharaj-singh-ka-pura when suddenly to give their glimpse to the witness (PW-8) accused and deceased appeared on motor-cycle and then disappeared. The witness had no talk with them as they had not stopped the motor-cycle. On the next date, this witness left Maharajsingh-ka-pura having borrowed Rs. 2000/-. On 27.01.2006 when the Police was standing in the chowk, he came forward and introduced himself as a witness.

To us, this witness (PW-8) seems to be a procured witness, especially when another witness upon whom prosecution case rests, Babu Lal (PW-11) is his real brother.

Babu Lal (PW-11) is also resident of Village Jaitpur. Rajakhera (Dholpur) the Village to which Mahaveer (PW-8) belongs. This witness (PW-11) on the day of occurrence at about 08:45 P.M. alighted from the roadways bus at Saiya. He started walking towards Village Randoli where his bhua (father''s sister) was staying. Suddenly, he saw a red colour motor-cycle parked and raised a voice, then present appellant, Ramvilas and Shivsingh came out of the field.

The prosecution wants the Court to believe that at 08:45 P.M. when these two persons, i.e. the present appellant and Shivsingh emerged from the fields as they were not accompanied by deceased Ramdas, at that juncture, they were seen by Babu Lal (PW-11), who is none else, but is real brother of Mahaveer (PW-8).

It is again a great chance that the witness, Babu Lal (PW-11) alighted from the bus at 08:45 P.M. and while walking towards Randoli, he saw a red colour motor-cycle and the accused and Shivsingh coming out of the field. To us, from their conduct both the brothers are highly interested witnesses.

Once we rule out the evidence of the last seen, only incriminating circumstances remain with the prosecution is the conduct of the accused and identification of the place where allegedly murder was committed and thereafter, dead-body was thrown on the railway line. No independent witness has supported the case of the prosecution case, qua these two incriminating circumstances.

Informer, Ramsahay (PW-10) who had lodged written-report (Exhibit-P/18) has also turned hostile to the prosecution case. In Court, he has not uttered a word that present appellant, Ramvilas had relayed any information.

Ranveer (PW-12) has also turned hostile to the prosecution case.

We may note here that even though shoes of the appellant was recovered vide Exhibit-P/23 and a muffler was also taken into possession. The said muffler recovered from the accused has not been sent to the State Forensic Science Laboratory Rajasthan, Jaipur and there is no evidence to connect these two articles so far as alleged crime is concerned.

Nobody has identified the muffler to whom it belongs and furthermore, there is no report of any Laboratory, whether it was stained with blood or not. No foot moulds have lifted and, therefore, mere recovery of shoes and muffler is insignificant.

Merely on the basis of conduct of the appellant, we cannot uphold his conviction, as we have discarded the testimony of Mahaveer (PW-8) and his brother Babu Lal (PW-11) by holding that their presence at the pointed place is highly improbable and it is too big a chance that at relevant time they had seen accused and deceased together. Even otherwise, the evidence of last seen is a weak type of evidence.

Consequently, we find that the prosecution has failed to complete the chain of circumstances to arrive at a conclusion that the offence, if any, has been committed by the present appellant alone and it could not have been committed by anybody else.

As a result of above discussions, the present appeal is, hereby, accepted. Conviction and sentence of the appellant is, hereby, set aside. Appellant is acquitted of the charges levelled against him.