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Kana Alias Kanhaiya S/O Gogaram Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Cr. Appeal No. 400 of 1980
Judge
Reported in1985(2)WLN630
AppellantKana Alias Kanhaiya S/O Gogaram
RespondentState of Rajasthan
DispositionAppeal dismissed
Excerpt:
.....accused.;there is convincing evidence against the accused appellant that at his instance the dhoti was recovered which he was putting on at the time of the incident and on that dhoti human blood of b group was found. the blood which was found on the clothes which the deceased was putting on and also on the kulhari and kadvi-ki-pooli, was of the human blood b group. the accused appellant has not come with a case that his blood is of b group. no explanation has been given by the accused appellant as to how b group human blood was found on the dhoti. thus, there is very strong evidence against the accused appellant so far as the recovery of dhoti having blood b group is concerned.;(c) penal code - sections 302 & 376--accused found entering bara and washing his hands and..........the accused-appellant gave an information under section 27 of the evidence act that he can get the dhoti recovered which he was putting on at the time of the incident. memo ex. p 24 was prepared in consequence of the information given by the accused-appellant. the dhoti was recovered vide ex.p. 1. in ex. p 1 it has been specifically mentioned that at marks a,b,c,d, e and f it seems that there is a human-blood. the dhoti has been recovered in the presence of two witnesses narain and dhanna by the investigating officer, pw 2 dhanna has specifically stated that the police called him and the accused took them at the house of chanddas and from the kitchen the dhoti was taken out by the accused-appellant and the police seized that at 5-6 places there were blood-stains. he has further stated.....
Judgment:

Dinker Lal Mehta, J.

1. This appeal has been preferred by the accused appel-lant against his conviction and sentence under Sections 376 & 302 IPC.

2. Brief facts of the case are that the accused appellant, Kana alias Kanhaiyalal, had done to death of Ramavtari after committing rape on her. The insatiable hunger of the accused did not stop there and to see that no evidence is available, he also hecked Sheoji alias Chhoga, real brother of Ramavtari to death. On the unfortunate day of the incident the unfortunate mother Ram Pyari (PW 5) of the two murdered children had gone to jungle for collecting hay. She left behind her daughter Ramavtari aged 11-12 years and her son Sheoji alias Chhoga aged 6 years and two others children Lali and Santosh. She returned at 1 p.m. and did not find her children, Ramavatari and Sheoji at home. Therefore, she made inquiries and therefter she went to her field. She returned at about 5 p.m., but did not find Ramavatari and Sheoji. The unfortunate mother tried in vain to search out missing children in the locality, but the children could not be traced out. On the next day in the morning at 7.00 a.m. Ram Pyari (PW 5) the mother of the two murdered children went to Nohara for bringing fodder for animals. She found there the two bodies of Ramavatari and Santosh in the Busera. She was shocked with this tragic event and raised alarm which attracted Birdhichand and Kailash. Her brother-in-law Narain also came there. Narain. (PW 4) went to the Police Station, Phagi to lodge First Information Report Ex.10. On the basis of the said report case No. & (Ex. P II) was registered and investigation came into motion. During the course of investigation Dinesh Chandra Sharma rushed to the spot and recovered the dead body of the two murdered children in the presence of Shrawan Lal, Lallulal Phoolchand Chiranjilal, and Ram Narain. Inquest reports Ex. P. 3 for Sheoji and Ex. P. 4 for Ramavatari were prepared. From the scene of occurrence the weapon of offence, kulhari, was recovered vide recovery memo Ex. P. 5. It was taken over and sealed in presence of motbir and sealed on the spot, and in testimony whereof memo Ex. P. 6 was prepared. Blood-stainted clothes of Sheoji were recovered and sealed and memo Ex. P. 7 was prepared. The dead body of Ramavatari was lying in Tudi (Kadvi) which were recovered vide Ex. P. 8 and Ex. P. 9 which were also sent for chemical examination. Besides this the Investigating Officer prepared the site-plan Ex. P 2. After collecting evidence and recording the evidence of the witnesses, accused Kana was arrested vide memo Ex. P 33.

3. The accused voluntarily gave information under Section 27 of the Evidence Act with regard to Dhoti which he was wearing at the time of the incident. This information was recorded in memo Ex. P 34 and in pursuance of the said information Dhoti was recovered on 24th February, 1980 from the house of Chandadas Brahmin in Mohalla Lambadas, vide recovery memo Ex. P1, in the presence of Narain and Dhanna.

4. The statement of some of the witnesses recorded to show that Kana alias Kanhaiyalal, the accused-appellant was seen on the date of the incident at about 12 or 12.30 bringing the buffaloes back. He was further spotted by Suwa Kumar entering the bara of Ghasi where Sheoji and Ramavatari had also gone. Durga Lal was produced to show that after the incident the accused-appellant washed his hands and feet at Gulab Kui.

5. The other set of evidence is that accused had confessed before Shri Narain that he had raped Ramavatari and thereafter murdered her and her brother Sheoji.

6. After investigation a charge-sheet was submitted before the learned Addl. Munsif & Judicial Magistrate, Shamber Lake who committed the case to the court of Sessions, for the offences punishable under Section. 302 and 376, IPC. After recording the statement of the prosecution witnesses the accused-appellant was examined under Section 313, Cr.P.C. The accused-appellant denied all the allegations made against him. It was submitted by the accused-appellant that the relatives of Ramavatari and Sheoji were also kept at the Police Station for two-three days; but they were let off subsequently. The accused-appellant has also stated that the police failed to find out the real culprit and they demanded Rs. 2000/- from him and since he was poor and could not afford to pay Rs. 2000/- he was roped in this case. In his defence, he examined DW 1 Bhagwana and DW 2 Manni. The learned Sessions Judge after examining the evidence on record convicted the accused-appellant under Section 302 and 376, IPC and sentenced him under both these Sections.

7. The learned counsel for the accused-appellant has vehemently assailed the findings arrived at by the learned Sessions Judge, whereas the learned public prosecutor has supported the fingings arrived at by the learned Sessions Judge.

8. The case of the prosecution is based on circumstantial evidence. The circumstantial evidence against the accused-appellant is to the effect:

(a) that he was seen entering the bara in which the dead bodies were found;

(b) that he was seen near and about the scene of occurrence;

(c) that he was seen washing his hands; and

(d) that blood of the deceased was found on the dhoti of the accused;

(e) extrajudicial confession.

9. The learned counsel for the accused-appellant has vehemently submitted that Ex. P/10, the First Information Report was lodged after 24 hours and, in that information also it was mentioned that dead bodies were found in the bara and, there is difference between bara and bushera. He submits that the prosecution has not come with a clear case that the dead bodies were found in the bushera.

10. We have given our anxious and thoughtful consideration to the submissions made by the learned counsel for the accused-appellant. The First Information Report Ex. P/11 was lodged by Narain (PW 4). In the First Information Report it has been specifically mentioned that the dead bodies of both the deceased are lying in the bara. It is also an admitted position that bushera is a shelter place which is there in the bara. We do not find any material difference in bushera and bara especially, in the facts and circumstances of the case; as bushera is the part of the bara and is situated in the bara. The accused-appellant has not been named in the First Information Report and delay, if any, filing the First Information Report, is not material in this case. In the instant case, the First Information Report was lodged at 9 a.m. on 4-2-1980. The incident had taken place some time in the noon of 3-2-l980. Generally, the villagers try to search the children and no one can expect or imagine that they might have been murdered. If for a day, the search has been made it is not going to affect the case of the prosecution. In the normal course, search is first made and thereafter a report is lodged about the incident. In the instant case, when in the morning of 4th when the dead bodies were found in the bara or bushera then the First Information Report was lodged immediately.

11. The second submission made by the learned counsel for the accused-appellant is about the recovery of the dhoti. It is an admitted position that the accused-appellant was arrested vide Ex.P 23 on 19-2-1980 at about 5 p.m. Nothing incriminating material was found on his person. On 23-2-1980 the accused-appellant gave an information under Section 27 of the Evidence Act that he can get the dhoti recovered which he was putting on at the time of the incident. Memo Ex. P 24 was prepared in consequence of the information given by the accused-appellant. The dhoti was recovered vide Ex.P. 1. In Ex. P 1 it has been specifically mentioned that at marks A,B,C,D, E and F it seems that there is a human-blood. The dhoti has been recovered in the presence of two witnesses Narain and Dhanna by the Investigating Officer, PW 2 Dhanna has specifically stated that the police called him and the accused took them at the house of Chanddas and from the kitchen the dhoti was taken out by the accused-appellant and the police seized that at 5-6 places there were blood-stains. He has further stated that the dhoti was sealed in his presence by the Police Officer. He has further stated that he went into the kitchen with the police and the accused-appellant from where the dhoti was recovered. PW 4 Narain has further stated that the dhoti was recovered by the police in his presence from the kitchen, and it was sealed. PW 12 is Ram Niwas, who is a constable. He has stated that on 18-2-1980, he was working as a constable at the Police Station. Four sealed packets were handed over to him and he deposited all the packets in FSL in the same condition. He has further stated that he deposited all the packets on 19-2-1980 and, by mistake he has stated earlier that he deposited the packets on 18-2-1980. PW 13 Jagdish Chandra is constable. He has stated that he has also deposited the packets which were given to him in the sealed condition. PW 18 Dinesh Chandra Sharma has stated that the articles which were recovered or seized were sent to the Chemical Examiner in the sealed condition and the same had not been tampered with at all. The Forensic Science Laboratory, vide Ex. P 34, detected blood from the dhoti and kadvi-ki-pooli from the parcel D and K. respectively. Blood-stained cuttings and samples along with their respective controls were sent to the Serologist for examination. The Serologist vide his report Ex. P 37 found that the dhoti which was recovered at the instance of the accused-appellant contained human B group blood. The other articles namely, ghagra, blouse and bush-shirt which the deceased were putting on were also sent to the Serologist and the Serologist vide Ex.P. 37 found human B group blood on them. Kulhari and Kadvi-ki-pooli which were also recovered from the site were also sent to the Serologist and the Serologist found that the articles recovered are also of the origin blood-stains B blood group. Thus, there is convincing evidence against the accused-appellant that at his instance the dhoti was recovered which he was putting on at the time of the incident and on that dhoti human-blood B-group was found. The blood which was found on the clothes which the deceased was putting on and also on the Kulhari and Kadvi-ki-pooli, was of the human blood B group. The accused-appellant has not come with a case that his blood is of B group. No examination has been given by the accused-appellant as how B group human-blood was found on the dhoti. Thus, there is a very strong evidence against the accused-appellant so far as the recovery of dhoti having blood B group is concerned.

12. Dr. M.M. Tiwari, Assistant Director, Forensic Science Laboratory, assisted by a team of experts visted the site on 4-2-1980. Their observations are under:

(1) Examination of the dead bodies revealed that the girl was not only killed but she was raped. Lot of blood was oozing out of the torn vagina of the girl

(2) Sharp and deep injuries were present on both the victims;

Girl: Sharp injury on the side of neck and face;

Boy: Sharp injury on the side of the neck and face;

(3) Cut marks of fodder (chara) lying on the floor of the room was noticed and relevant photographs taken;

(4) Blood stained Kulhari was also found at the scene of crime.

13. Memo Ex. P. 22 was prepared. The experts had also taken nine photographs at the place of incident. Dr. M.M. Tiwari has been examined as a prosecution evidence. He has proved Ex. P. 22, the memo and, the photographs Ex. P. 23 and Ex. P. 31. The learned counsel for the accused-appellant could not point out any infirmity in the statement of Dr. Tiwari who is the Assistant Director in the Forensic Science Laboratory, Jaipur.

14. So far as the other evidence is concerned, there is the statement of PW 7 Ram Pyari to the effect that she saw the accused appellant coming from the well. PW 6 Durga Lal has also stated that he saw Kana, accused-appellant at the well (Gulab Kui). PW 10 Suwa Kumar has stated that he saw Kana accused-appellant entering the Nohra of Ghashi at about 1.00 in the noon. The Nohra of Ghashi is the nohra of the deceased. The learned Sessions Judge has discussed the evidence of Suwa Kumar in detail and has come to the conclusion that the accused-appellant entered the bara or Nohra of the deceased and thereafter went to the well to wash his hands and feet. Jagdish (PW 1) has stated that he knew the accused well. He went to Palkhalav tank at 8 a.m. where at about 10.00 a.m. the accused-appellant had also come. He has further stated that the accused-appellant left at about 12 with his buffaloes. The witness is not inimical to the accused-appellant. There is no such allegation against him. Thus, from the evidence of Jagdish (PW 1) it has been clearly established that the accused-appellant left at about 12 for grazing the cattle. PW 6 Durga had seen the accused-appellant at Gulab Kui between to 2 p.m. to 2.30 p.m. and at that time the accused-appellant was washing his hands and feet. PW 10 Suwa Kumar is the witness of the intervening period. He has catagorically stated that he had seen the accused entering Uhashi's bara at 1 p.m. wearing white dhoti. The dhoti which has been recovered is also of white colour. He has further stated that on the next day he told the police that he had seen Kana entering into the bara. Thus, the cumulative effect of these three witnesses leads us to the conclusion that the accused-appellant had been seen near by the place of incident and thereafter he was seen by PW 10 Suwa Kumar entering the bara of the father of the unfortunate children. After commission of the crime the accused-appellant was seen nearby the place of occurrence and he left the place of incident. He was found washing his hands and feet etc. Thus, there is an over whelming evidence that the accused-appellant was seen nearby the place of incident and was also seen entering the bara. There is another set of evidence, of Shri Narain, relating to the extra judicial confession, which reads as under:

eSus ns[kk fd eqyfte dkuk dk psgjk ?kcjk;k gqvk Fkk A o 'kjhj ri jgk Fkk A mlus dgk fd esj ls ,d cgqr cM+h xyrh gks xbZ] mlus crk;k fd eSus jkevorkjh dh ?kklks ds clsjs es bTtr ywV yh og ';ksth fQj jksrk jksrk vk;k rks eSus lkspk fd ;g cPpk vius eka cki ls dg nsxk] blfy, eSus blds Hkh dqYgkM+h ls flj es pksV ekjh A

15. There is no enmity between him and the accused-appellant. There is no reason why the extra-judicial confession should not be believed. It is an admitted position that an extra-judicial confession is a weak type of evidence, but if it is of sterling worth, conviction can be based on it. In the instant case, the conviction is not going to be maintained only on the basis of extra-judicial confession, but there is other overwhelming evidence also against the accused-appellant. It is an admitted position that the circumstantial evidence must be proved and should not admit of any doubt any other links of the prosecution story must be proved. We find that in the instant case it is provided that near by the time of the incident the accused was found entering into the bara of the father of the deceased. He was also found washing hands and feet after the incident. He has made extra-judicial confession before Shri Narain. Scientific evidence is that the blood of the deceased was recovered from his dhoti. The dhoti containing the blood-stains was recovered from his possession and at his instance. Therefore, we find that in the present case, there is cogent evidence in support of the prosecution.

16. Apart from that, there is medical evidence. Ex. P. 21 is the postmortem report. The Doctor has poined that the cause and manner of the deceased's death appears to be shock and asphyxia due to gapping wounds on the neck and force. Ex. P. 20 is the post-mortem report of Ramavatari. The Dotctor has opined that the cause and the manner of the death of the deceased appears to the asphyxia due to gapping wounds from the neck fracture of ribs injury to left kidney and genitals. He has also opined that the victim appears to have been raped by the assailant or his companion if any, before causing death to her. The post-mortem of Ramavatri was conducted at 2.30 p.m. at the place of murder. The Doctor in his statement has further stated that the organs of the generations externally vaginal canal exposed with 1-1/4' x 3/4' (vertical) Dimension of outer opening causing wide separation of Labia majora and minora with contusions and inflammation of these in her surface. Internally hymen completely torn vaginal canal lacerated and inflammed containing semi-liquid blood posterior commissure means posterior labia majora also torn and Lacerated with blood stains.

17. On the same day at 3.15 p.m. the Doctor conducted the postmortem of Sheoji alias Chhoga. This witness has proved Ext. 20 and 27. The Doctor has opined that the death of both the victims had occurred about 24 hours prior to the post-mortem examination. These post-mortem reports, Ext. 20 and 21 also corroborate the other evidence and the time of the incident which is said to be between 1 and 2 p.m. The learned Sessions Judge has dealt with the matter in detail and we need not deal with same further. We do not find any force in this appeal.

18. For the reasons stated above, the conviction and sentence passed by the learned Sessions Judge is maintained and the appeal is dismissed.


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