- (1.) This appeal is directed against judgment dated 27.02.2008 passed by the Additional Sessions Judge (Fast Track), Kotputli, District Jaipur, in Sessions Case No.21/2007 (24/2006), whereunder accused-appellant Naresh @ Tekchand @ Sumit, has been convicted for offence under Sections 364A, 302 and 201 IPC. For offence under Section 201 IPC, he has been sentenced to undergo seven years rigorous imprisonment with fine of Rs.1000/-; in default of payment of fine, to further undergo three months imprisonment. For offence under Section 364A IPC, he has been sentenced to undergo life imprisonment and fine of Rs.4000/-; in default whereof, to further undergo two months imprisonment. For offence under Section 302 IPC, he has been sentenced to undergo life imprisonment and fine of Rs.5000/-; in default whereof, to further undergo two months imprisonment. All the aforesaid substantive sentences were ordered to run concurrently. Facts of the case, in brief, are that a written report (Exhibit P-44) was submitted by one Hari Prasad Arora (PW-38) to Jhabbu Ram (PW-42), Station House Officer, Police Station Kotputli, at about 11.30 PM on 19.05.2005 stating therein that his son Deepak had left his shop on that day at about 10.00 AM without any information. His wife Smt. Shanti (PW-3) received a telephonic call on phone from an unknown person, who enquired from her about the informant (Hari Prasad Arora). She told that informant was not in house, the unknown person stated that he would again call later. Thereafter, another phone call was received at about 3.00 PM. This time, the caller told Smt. Shanti (PW-3) that if she wanted to save life of her son Deepak, the informant should deliver Rupees one lac at Jaipur Railway Station . Smt. Shanti (PW-3) asked him to give phone to Deepak, but he disconnected the phone. After two hours again phone call was received and the caller demanded the ransom. After receipt of aforesaid call, a written report was submitted to the police. The police on that basis, registered FIR No.309/2005 (Exhibit P-45) and investigation commenced. On completion of investigation, the police submitted negative final report. Later on, the investigation was again started. Accused-appellant was arrested on 18.06.2006 vide memo Exhibit P-9 by Mohan Singh (PW-31), the investigating officer. The accused-appellant gave information on 27.06.2006 (Exhibit P-41) to the effect that on 19.05.2005 he caused murder of Deepak in a room of Ram Bhawan, Kotputli, and kept the dead body in a box and put lock on it and that he took the box to Jaipur in a bus, where he put the same in a train (Bareilly-Bhuj express) going to Bhuj (Gujarat). During investigation, site-plan (Exhibit P-1) was prepared and the box, which was seized in presence of Heeralal (PW-19) and Bhajanlal (PW-21), was identified by Ram Kumar (PW-2) in presence of Tehsildar Surendra Singh (PW-29) and memo (Exhibit P-2) in this respect was prepared. The police, after completion of investigation, submitted challan against accused-appellant for offences under Sections 302, 201 and 364A of the IPC in the court of Additional Chief Judicial Magistrate, Kotputli, District Jaipur, from where it was committed to the Court of Sessions and thereafter the case was transferred to the court of Additional Sessions Judge (Fast Track), Kotputli, District Jaipur, for trial. Learned trial court framed charges for offence under Sections 302, 201 and 364A of the IPC. Accused-appellant denied the charges and claimed to be tried. The prosecution, in support of its case, got 42 witnesses examined and exhibited documents from Exhibit P-1 to Exhibit P-48A. Learned trial court, vide judgment dated 27.02.2008, convicted and sentenced the accused appellant, as indicated above, by placing reliance on circumstantial circumstances. Aggrieved thereby, accused-appellant has filed this appeal. Shri Rajesh Kala, learned counsel for accused-appellant, argued that learned trial court, while recording finding of conviction against accused-appellant, has relied on statements of prosecution witnesses, namely, Devendra (PW-4), Yunus Mohammad (PW-5), Puranmal (PW-6), Ami Chand (PW-8), Mahesh Pareek (PW-9), Vishwabandhu Sharma (PW-10) and Manish Sharma (PW-35). He argued that there is no direct evidence against accused-appellant. Entire prosecution case is based on circumstantial evidence. Learned trial court has heavily relied on statements of Ami Chand (PW-8) and Vishwabandhu Sharma (PW-10). Both these witnesses are planted witnesses. Ami Chand (PW-8), who claims to be a rickshaw puller in Kotputli, stated that one boy came to him and asked to drop him in Ram Bhawan. He (Ami Chand) brought that box to the bus-stand in his rickshaw. Ami Chand (PW-8) claims to have identified accused-appellant in the court as that boy. In cross-examination, however, he admitted that he for the first time saw the accused in the court. This witness is highly unnatural. This is fortified from the fact that his statement under Section 161 Cr.P.C. (Exhibit D-6) was recorded by the police after 14 months of the incident. Learned counsel argued that his statement under Section 161 Cr.P.C. (Exhibit D-6) clearly shows that the Investigating Officer with a view to fill up the lacunae, planted him as a witness. Ami Chand (PW-8) stated that he himself came forward to record his statement after 14-15 months of the alleged incident. This would be highly unnatural for a person, who pulls rickshaw. The manner in which Ami Chand (PW-8) has given the location and internal plan of Dharamshala clearly shows that he was not only planted but also a tuited witness. Ami Chand (PW-8) has stated that he himself appeared before the police whereas in cross-examination he stated that he was called at the police station by the police to record his statement. In cross-examination, he further stated that he for the first time saw the accused-appellant in police station. Learned counsel argued that this statement of Ami Chand (PW-8) was false because the accused-appellant was arrested on 16.06.2005 and was sent in judicial custody on 01.07.2005, whereas, the statement of Ami Chand (PW-8) was for the first time recorded on 05.08.2006 when the accused-appellant was in judicial custody and there was every occasion for him to see the appellant at the police station. In cross-examination, Ami Chand (PW-8) has further stated that his marriage took place about five years back, but he was unable to remember the exact date of his marriage. Ami Chand (PW-8), in cross-examination, further stated that he did not know Hari Prasad Punjabi (PW-38). However, when Ami Chand was called for re-examination under Section 313 Cr.P.C., he was shown his photographs (Exhibit D-9 to Exhibit D-15) of working in the shop of Hari Prasad (PW-38) as his servant and then he admitted that he was seen in those photographs. Learned counsel argued that Ami Chand (PW-8) in fact was working on the shop of Hari Prasad Punjabi (PW-38) and thus he was a made up witness and cannot be relied. Shri Rajesh Kala, learned counsel submitted that Vishwabandhu Sharma (PW-10), another witness relied on by learned trial court, stated that he had seen many boys with the deceased, among which there was also the accused-appellant, which fact he told to Yunus. He also identified accused-appellant for the first time in court and his identification by this witness was not conducted by the police in the jail. In absence of previous identification parade, it is wholly unsafe to rely on his testimony regarding identification of accused for the first time in court. Statement of Vishwabandhu Sharma (PW-10) was also recorded by the police after about 15 months of the incident, which is fatal and vitiates the prosecution case. Even if statement of Vishwabandhu Sharma (PW-10) to the extent of seeing Deepak at about 10-11 AM at 'Rewari-Wali-Dukan' along-with one boy is accepted, the same cannot be relied as evidence of last seen and learned trial court has erred in relying thereon to base his conviction under Section 364A IPC.
(2.) Learned counsel argued that as per prosecution case, the deceased was kidnapped from the shop of Hari Prasad Punjabi (PW-38) and thereafter he was taken to Shri Ram Bhawan Dharamshala, Kotputli in its Room No.24 by accused, where Deepak was murdered. In this regard, Mahesh Pareek (PW-9), the Manager of Sri Ram Bhawan Dharamshala, was examined. In examination in chief, he did not state that Deepak came to the said Dharamshala. He was declared hostile. In cross-examination, he admitted that whatever he has stated was told to him by the police. He admitted that he did not see the accused-appellant either coming to Dharamshala or going out. As per prosecution case, the appellant stayed in the said Dharamshala by the name of Vijay Kumar S/o Shri Mahavir Prasad, by Caste Sain, resident of R/o 108, Sultanpuri Mod, Nagloi, Delhi, but no enquiry in relation to the said name and address was made from the Municipal Corporation, Delhi, and no evidence whatsoever was collected in this regard. The prosecution has failed to establish its case in relation to taking the room in the said Dharamshala on rent by accused-appellant, and his stay or leaving the Dharamshala with alleged box. It is argued that as per prosecution case, the accused stayed in Dharamshala by fake name of Vijay Kumar and to establish the same, the prosecution has produced documents Exhibit 5A and Exhibit 43A, which were got exhibited by Mahesh Pareek (PW-9), Hotel Manager, Ram Bhawan Dharamshala, Kotputli, and Manish Sharma (PW-35), Hotel Manager, Kastoori Dharamshala, Near Railway Station, Jaipur, but both the witnesses failed to prove the prosecution case, because normally as per norms/practice the identity proof of the visitors are taken, but no such identity proof was taken from the accused and such statement were not believable. Besides, no test identification parade was conducted from both these witnesses to identify the accused-appellant. It is argued that learned trial court, at page 41 of impugned judgment, has categorically observed that investigation was not conducted properly by the police, yet without giving any cogent reason, it proceeded to convict the accused-appellant on the basis of surmises and conjectures. On alleged information of accused, recovery of certain goods and articles (Exhibit P-32) was made by Mohan Singh (PW-31) in presence of Shankar Lal (PW-20) and Ami Chand (PW-27). Both these witnesses were police officials and no independent witness was associated, though were available, while conducting recovery. Moreover, Shankar Lal (PW-20), in examination in chief, has said nothing about the recovery. The accused allegedly purchased the empty steel trunk from shop of Ram Kumar (PW-2) and the same was got identified by him, but he has been declared hostile. The prosecution has thus failed to prove its case in relation to purchase of steel trunk from his shop.
(3.) It is argued that statement of complainant Hari Prasad (PW-38) is improbable and highly exaggerated. Learned trial court itself on page 43 of the judgment, observed that there is exaggeration in statement of complainant Hari Prasad (PW-38), but still it has placed reliance on his testimony. No telephone call details were produced, in the absence of which the accused-appellant could not be connected with alleged commission of crime. Hari Prasad (PW-38), in examination in chief, has stated that he lastly saw Deepak accompanying the accused-appellant Naresh, whereas this important fact was not at all mentioned by him in the first information report, which clearly shows that he has improved upon his version in the examination in chief. It is highly improbable and unbelievable that accused-appellant, who was 21 years of age, first kidnapped the deceased and thereafter, caused murder of deceased for the purpose of ransom in the manner as alleged by the prosecution. From the evidence led by the prosecution, it cannot reasonably be inferred or presumed that it was the accused-appellant alone and none else, who had committed murder of deceased. The circumstances relied by the prosecution are weak and they do not at all connect the accused-appellant with alleged crime. Bannalal, Head Constable, was deputed at the residence of complainant Hari Prasad (PW-38) to hear the telephone calls, but he has not been produced by the prosecution. Further, no call details were produced and thus there is no evidence whatsoever to prove the demand of ransom by the accused-appellant. As per prosecution case, the identification of deceased was made by Hari Prasad (PW-38) only on the basis of last wearing clothes (Exhibit P-31), which is not sufficient to prove the fact of death of Deepak, whereas in the FIR Hari Prasad (PW-38) has not at all disclosed the particulars about the age, height, colour of the deceased and so also the clothes lastly worn by deceased Deepak. Shanti (PW-3), mother of deceased, stated that height of the deceased was equal to the accused-appellant. As per the arrest-memo, the height of accused-appellant is 5'4", wheres the body recovered by the Gujarat Police is 5'8", which is evident from the evidence of Dr. Banshidhar Ganpat Lal Gupta (PW-32). Therefore, the presumption that the dead body in question belonged to Deepak, is wholly unfounded. Dr. Banshidhar Ganpat Lal Gupta (PW-32), who conducted the postmortem of dead body, the age of dead-body was 30 years and the colour of hair of the dead-body was shown as 'white', whereas, as per prosecution case, the age of Deepak was only 20 years, therefore, the dead body so recovered, cannot be taken as dead body of Deepak. Shanti (PW-3), in cross-examination, stated that Deepak was wearing 'white chhoti saran kurta', whereas, as per Exhibit P-31, the identification of dead body was made on the basis of recovery of shirt, hence dead body was wrongly identified as that of Deepak on the basis of his clothes. The steel trunk was allegedly put by Ami Chand (PW-8) in the bus at Kotputli coming to Jaipur and thereafter the accused-appellant reached Jaipur Railway Station and put the said steel trunk in the train, which was coming from Bareilly and going to Bhuj (Gujarat) on 19.05.2005. There was no such evidence on record for appellant's coming to Jaipur and putting the alleged steel box in the train. Several circumstances in the entire chain of events are missing. As per prosecution, the alleged box was heavy and it was not possible for the accused-appellant alone to carry such heavy box. The trial court itself in its judgment has raised serious doubts about the reliability and credibility of the prosecution evidence in this regard and in such circumstances, the accused-appellant was entitled to benefit of doubt, but still it has proceeded to pass the order of conviction against him.;