Rana Pratap vs State
2009 Latest Caselaw 427 Del

*                 IN THE HIGH COURT OF DELHI

%                            Date of Decision : February 06, 2009

+                            CRL.A.234/2005

       RANA PARTAP                        ..... Appellant
                Through:     Mr.Kamlesh Kumar, Advocate.

                             versus

       STATE                                    ..... Respondent
                  Through:   Mr. Pawan Sharma, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

1. The appellant along with co-accused Raj Virender Singh,

Raj Kumar and Deepak Kumar faced trial for the charge of

having entered into a conspiracy to murder Rajesh and in

furtherance thereof having murdered Rajesh on the intervening

night of 22-23rd December, 1996. Raj Kumar was declared a

proclaimed offender and hence, against him, proceedings were

kept in abeyance.

2. Vide impugned judgment and order dated 06.01.2005, co-

accused Raj Virender and Deepak Kumar have been acquitted.

Rana Partap has been convicted for the offence of murder as

also conspiracy. He has been sentenced to undergo

imprisonment for life for the offence punishable under Section

120-B IPC. He has been sentenced to undergo life imprisonment

for the offence punishable under Section 302 IPC and to pay a

fine of Rs.1,000/-; in default to undergo RI for a period of one

year.

3. At the outset, we are a little surprised at the appellant

being convicted for the offence of conspiracy inasmuch as two

co-accused have been acquitted. Qua the third accused,

proceedings were kept in abeyance as he was declared a

proclaimed offender and hence there are no findings against

him. There is no finding that there is evidence of Rana Pratap

being helped in the commission of the crime by any unknown

person or Raj Kumar who was declared as a proclaimed

offender. There is no finding that evidence establishes that

Rana Pratap had conspired with a third person.

4. The case of the prosecution was that Rana Pratap had a

grudge against the family of the deceased Rajesh because his

sister Suman was married to Rajesh and she died an unnatural

death and that Raj Virender Singh, Deepak Kumar and Raj

Kumar hatched a conspiracy along with Rana Pratap to murder

Rajesh and in furtherance thereof went to the house of Rajesh at

around 9.30 PM on 22.12.1996. Rana Pratap called Rajesh who

went along with all and that they murdered him by taking him to

a secluded spot. The weapon of offence was a country made

pistol which was recovered at the instance of Raj Virender. The

prosecution sought to establish the case by attempting to prove

motive on the part of the appellant and the deceased being last

seen with the accused persons at 9.30 PM by the mother of the

deceased coupled with the recovery of the weapon of offence

i.e. a country made pistol. We note that the deceased died due

to a bullet injury fired from a pistol.

5. We note that co-accused Raj Virender was acquitted on

account of the fact that the weapon of offence recovered at his

instance turned out not to be the weapon of offence and Raj

Virender being last seen in the company of the deceased has

been disbelieved by the Learned Trial Judge. Similarly, co-

accused Deepak Kumar has been acquitted because the

evidence against him of being last seen in the company of the

deceased has not been believed. We note that the mother of

the deceased Krishna Devi PW-4 has been disbelieved insofar

she has deposed that she had seen Raj Virender, Deepak Kumar

and Raj Kumar along with the appellant when he came to her

house and took along her son at around 9.30 PM on 22.12.1996.

6. Against the appellant Rana Partap, the Learned Trial Judge

has relied upon the following evidence:-

A. Testimony of Krishna Devi PW-4, the mother of the

deceased, who claimed to have seen the appellant leave her

house along with her son at 9:30 P.M on 22.12.1996.

B. The post-mortem report Ex.PW-2/A pertaining to the post-

mortem of the deceased which was conducted at 12:00 noon on

24.12.1996 recording the opinion that the deceased Rajesh had

died about 36 hours back; meaning thereby that the

approximate time of the death of the deceased was 12:00 mid-

night of the intervening night of 22.12.1996 and 23.12.1996.

C. Motive. The motive was that Suman, sister of Rana Partap

was married to the deceased Rajesh and had died an unnatural

death; being burnt, within two years of her marriage and hence,

Rana Partap had a grudge against Rajesh; a fact proved by the

mother of the deceased Smt.Krishna Devi.

7. Needless to state, the learned Trial Judge has based the

decision on the fact that the deceased was last seen alive in the

company of the appellant at 9:30 P.M and as per post-mortem

report, he died within about three hours thereof i.e. around

12:00 mid-night and that there was a motive for the appellant to

kill the deceased and hence the last seen evidence coupled with

motive was sufficient to hold that the appellant was guilty of the

offence.

8. It is not in dispute that the dead body of Rajesh was found

by somebody in the morning of 23.12.1996 who gave a

telephonic information of the said fact to the police, which was

recorded at the Police Station vide DD No.9-A Ex.PW-2/B, at

around 9:00 A.M. on 23.12.1996. Pursuant thereto, ASI Jitender

Pal PW-13, Inspector Rai Singh PW-17 and Inspector Gaj Raj

Singh PW-9 reached the spot where the dead body was

disclosed to be lying; and recovered the same. A used cartridge

and a bullet was recovered from the spot.

9. The prosecution claims that they were on the look out of

the appellant and unknown co-accused because mother of the

deceased has told them of the past enmity and the appellant

taking her son from his house in the company of three or four

other boys and that the appellant and the co-accused were

apprehended by the police in another case being FIR

No.66/1997. According to the prosecution co-accused Raj

Virender got recovered the weapon of offence. As noted above

the same was opined not to be the weapon of offence by the

ballistic expert, an evidence which has resulted in the acquittal

of Raj Virender.

10. Since the appellant has been convicted on the testimony of

his mother-in-law i.e. PW-4 as per which it has been held that

motive for the crime and being last seen with the deceased has

been established, we need to note the deposition of PW-4 in

detail.

11. In her deposition in Court, PW-4 deposed that her son

Rajesh was married to Suman, the sister of accused Rana Partap

about four years prior to the date of incident. Suman died after

two years of her marriage. She was blessed with a girl child. The

child was 11 months old when Suman died. The family of Rana

Partap made a complaint against her and she remained behind

bars in said complaint. Mother of Rana Pratap told her son

Rajesh that she sensed danger to his life from Rana Partap and

that he should go away from the locality. Her son informed her

about the threat and she tried to sell her house so that they

could shift to some other place. That on 22.12.1996 at about

9:30 P.M, accused Rana Partap came to her house along with

three-four boys. While the boys were standing outside, Rana

Partap called Rajesh from outside. Rajesh accompanied Rana

Partap. She followed her son up to the door. He did not care to

listen to her. She saw three boys standing outside her house

and Rajesh left with Rana Partap and the other boys. (She

identified the three accused persons in Court being the same

persons who visited her house along with Rana Partap on that

day). She went on to depose that her son did not return till

12:00 mid-night, at which, her husband visited the house of

Rana Partap and disclosed to his mother that their son Rajesh

had left with Rana Partap, at which mother of Rana Partap asked

her husband, as to why, did they allow Rajesh to accompany

Rana Partap and that the mother of Rana Partap started

weeping. She deposed that when her husband came back and

informed her regarding his conversation with the mother of

Rana Pratap, even she started weeping. She deposed that on

the next day i.e. 23.12.1996, in the morning, she received a

telephonic call from the police regarding her son lying

unconscious in a jungle. She deposed that the police requested

them to identify the dead body. She along with Babloo reached

a deserted area of Sultan Puri and identified her son lying on the

ground. She deposed that the complaint Ex.PW-4/A bears her

signatures at Point A.

12. The complaint Ex.PW-4/A is the rukka on basis of which the

FIR was registered. Since the said statement made by PW-4 to

the police is at the very first opportunity available to her, we

deem it prudent to note the same in its entirety. It reads as

follows:-

"Statement of Smt. Krishna W/o Sh. Deshraj, R/o R-471, Mangol Puri, Delhi, aged about 47 years.

It is stated that I reside at the above mentioned address. Quarter to four years ago, my son Rajesh got married with Suman. Suman was resident of village Rithala, P.S. Mangol Puri. After the marriage, Rajesh was blessed with a son. Suman died due to burn injuries. Suman's mother had lodged a complaint against us, as a result, I had to go to jail. Due to this the relations between Suman's family and our family became stained. After a few days, Rana Partap and my son Rajesh started visiting each other's house and Rajesh use to take his son to their house. One day, on return from the house of Rana Partap, my son Rajesh told me that they should leave their house and go to live elsewhere because he fears danger from Rana Partap. After hearing Rajesh, I spoke to people regarding the sale of our house. Yesterday, on 22.12.1996 at about 9:30 P.M, I was sleeping on the upper floor when Rajesh came to me and told me that Rana Partap had come to call him for certain work and that he will come back by 12:00 night. I tried to stop Rajesh, but he went along with Rana Partap without paying any heed to me. I told this to Rajesh's

father, we waited for Rajesh till 12:00 mid-night and when he did not return, Rajesh's father accompanied by Viresh @Babloo went to Rana Partap's house at Rithala at 2:00 A.M. Rana Partap and Rajesh were not available at his house. After returning home, my husband went in search of Rajesh. On receiving information from the police I have come to the site. I have seen the dead body of my son Rajesh. I am sure that in his death, Rana Partap @Babloo and his associates have full involvement."

13. With reference to the statement Ex.PW-4/A and the

deposition of Krishna Devi in Court, it becomes apparent that in

her statement Ex.PW-4/A, Krishna Devi did not state to the

police that Rana Partap was accompanied by three or four boys

when he came to her house. Further, she did not tell the police

that she had walked up to the door and thereupon, had seen

other persons with him. We note that since Krishna Devi had

identified the co-accused in Court for the first time; since she

had not disclosed to the police at the first instance that Rana

Partap was accompanied by other persons, the learned Trial

Judge has held that Krishna Devi has improved upon her earlier

statement, to implicate the co-accused; and for said reason has

given the benefit of doubt to the co-accused.

14. From the statement of Krishna Devi recorded in the Court

and with reference to her statement Ex.PW-4/A, it becomes

necessary to note certain statements of fact disclosed by her,

which in our opinion, are relevant to determine the truthfulness

of what was stated by Krishna Devi.

15. Reason why we do so, is that, admittedly all was not well

between the two families. Krishna Devi was sent to jail on a

complaint made by the family members of Rana Partap. There is

thus a possibility of her deposing falsely, to take revenge.

16. From the deposition of Krishna Devi PW-4 made in Court,

we note the following statements made by her:-

"(i) The mother of Rana Partap made a complaint against me and I remained behind bars in that case.

(ii) Then mother of Suman told my son that there is danger to his life from Rana Partap and he should go away from there.

(iii) My son returned to home and informed me regarding this threat. I tried to sell house so that I can vacate the said premises.

(iv) On 22.12.1996 at about 9:30 P.M, accused Rana Partap reached at my house along with three-four boys.

(v) I followed my son up to the door. He did not care to listen to me.

(vi) My son did not return till 12:00 mid-night. My husband visited the house of accused Rana Partap and my husband disclosed the facts to the mother of Rana Partap. Mother of Rana Partap asked my husband why we allowed Rajesh to accompany with Rana Partap.

(vii) Then, my husband came back to home. My husband informed me regarding the version of Rana Partap's

mother. Then, I also started weeping.

(viiii) On the next date i.e. 23.12.1996 in the morning, we received a telephone call from the police regarding lying of my son in unconscious condition in the jungle."

17. If we analyze the aforesaid statements of Krishna Devi, it

becomes apparent that the level of alarm set in the family of

Krishna Devi was so high that they feared danger to their lives

from Rana Partap and had even taken a decision to sell their

house in the locality and move elsewhere. The level of alarm

from the family of Rana Partap is further evidenced from the

statement of Krishna Devi that she had cautioned her son not to

leave with Rana Pratap on 22.12.1996.

18. We note that the month of December is peak winter in

Delhi and by the 22nd day of the month the sun sets at around

5:30 P.M. The city is asleep by 9:30 P.M. There is hardly any

movement of citizens in the streets in Delhi at 9:30 P.M. This is

the reason why Krishna Devi was alarmed if her son was leaving

in the company of Rana Pratap from whom they feared for their

lives.

19. We note that Krishna Devi stated that when her son did not

return till 12:00 mid-night her husband visited the house of Rana

Partap and had a dialogue with the mother of Rana Partap who

questioned her husband, as to why, they had allowed Rajesh to

leave in the company of Rana Partap. This obviously means that

the mother of Rana Partap expressed surprise over the fact that

the family members of Rajesh permitted him to accompany

Rana Partap who had already evidenced his intention to cause

harm to the family members of Rajesh. Not only that, the

troubled mind and the fear of the unknown lurking in the mind

of Krishna Devi is evidenced from her statement when she

stated that when her husband disclosed his conversation with

the mother of Rana Partap she started weeping. This shows that

at late night she got enough feelers showing concern for her

son.

20. What would be conduct of the mother in these

circumstances?

21. The answer is obvious. To try and rescue her son. The

natural conduct would be to go to the police station and inform

that her son is missing and so is Rana Pratap and that Rana

Pratap could kill her son; meaning thereby the police should do

something.

22. PW-4 did nothing of that sort.

23. Circumstances of a case play a very important role in

appreciating evidence.

24. In the instant case, it has to be noted that if there is a

motive for Rana Partap to kill the deceased, there is an equal

motive for the family members of Rajesh to falsely implicate

Rana Partap and in particular Krishna Devi to do so as she had

been sent to jail on a complaint by the family members of Rana

Pratap.

25. That PW-4 has tried to inculpate the co-accused requires

that the testimony of PW-4 should be taken with a pinch of salt

and analyzed carefully to separate the grain from the chaff.

26. The reason why PW-4 falsely implicated the co-accused

can be gathered by us from the fact that Rana Partap and the

co-accused were caught by the police in another case being FIR

No.66/1997, P.S. Jahangir Puri. PW-4 who had not disclosed the

presence of anyone else in her first statement, probably

implicated them, because she had learnt that Rana Partap was

found in the company of some other persons when FIR No.

66/1997 was registered.

27. As noted above, the only evidence against Rana Partap

was of his being last seen in the company of the deceased at

9:30 P.M as claimed by PW-4 and the motive.

28. We have found the conduct of PW-4 to be unnatural, given

the circumstance under which she was, if indeed what she

deposed was correct. If indeed she had seen her son leave with

Rana Pratap in the night at 9.30 PM, on his not returning till

12.00 midnight, in view of the past enmity between the two

families her natural conduct would have been to go to the police

and in particular if she was true to her statement that when her

husband went to the house of Rana Pratap, mother of Rana

Pratap expressed surprise as to why they had allowed Rajesh to

go with Rana Pratap. Her statement that she started crying

shows that in view of the past threat from Rana Pratap, she

feared the worst for her son. If true, it was all the more reason

for her to have gone to the police.

29. It appears to be a case where when she learnt that her son

had been shot dead, not knowing the offender, the obvious thing

done by PW-4 was to think as to who could have done the

terrible act. When a person so thinks, the mind itself focuses on

all such persons who could be a possible threat. Obviously, the

name of Rana Pratap surfaced.

30. The circumstances of the case and the conduct of PW-4

leaves a lurking doubt in our mind to the truthfulness of the

deposition of PW-4. The appellant is entitled to the benefit of

the doubt.

31. The appellant is acquitted of the charge of having

murdered Rajesh as also of the charge of having entered into a

conspiracy to murder Rajesh. The impugned judgment and

order dated 6.1.2005 is set aside. The sentence imposed upon

the appellant is set-aside.

32. If not required in any other case, the appellant is directed

to be set free forthwith.

33. A copy of this order be given dasti to the Superintendent,

Central Jail, Tihar for compliance.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 06, 2009 rs