Dhula vs State
2021 Latest Caselaw 12473 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 1158/2016

Dhula S/o Shri Daluji Gameti, resident of Village- Bharodi, P.S.
Gogunda, Distt.- Udaipur (Rajasthan).
(Presently Lodged In Central Jail, Udaipur)
                                                                  ----Appellant
                                   Versus
State Of Rajasthan
                                                                ----Respondent


For Appellant(s)         :     Mr.Shambhoo Singh Rathore, Adv.
For Respondent(s)        :     Mr.Anil Joshi, PP



           HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                Judgment

Judgment Reserved on :                      04/08/2021
Date of pronouncement:                      10/08/2021



BY THE COURT : (PER HON'BLE GARG, J.)

The instant criminal appeal has been filed by the accused

appellant under Section 374(2) Cr.P.C. against the judgment dated

21.09.2016 passed by the learned Additional Sessions Judge No.1,

Udaipur in Sessions Case No.100/2013 (C.I.S. No.554/2014)

whereby the learned Judge convicted and sentenced the accused-

appellant as under :-

OFFENCE                                        PUNISHMENT
Section 302 IPC            Life Imprisonment with fine of Rs.
                           5,000/- and in default of payment of fine,
                           to further undergo six months' additional
                           rigorous imprisonment.
Section 397 IPC            7 year's Simple Imprisonment




                                       (2 of 8)                 [CRLA-1158/2016]

Both the sentences were ordered to run concurrently.

Brief facts of the case are that a written report (Ex.P/1) was

filed by one Nathu Lal at the Police Station, Gogunda, Distt.

Udaipur on 06.10.2011 stating therein that at about 1 O'clock, his

mother Smt. Dhuli Bai, aged about 65 years, went for grazing

buffaloes in the field of one Nana Lal. He was at the home till 4

O'clock. Thereafter, the complainant went to Amba Mata Temple.

Their buffaloes returned home on their own at about 6 O'clock in

the evening but his mother did not come back. His wife Smt.Geeta

went to the field and searched but could not find Smt. Dhuli Bai.

When the complainant returned home from the temple at about 7

O'clock, his wife told him that his mother had not returned home

from the fields. The complainant, along with Padaa Meghwal,

Heeralal Gurjar, Laxman Gurjar, Daulat Gurjar, Champa Gameti

looked out in the fields, wells and forest to search his mother-Smt.

Dhuli Bai. They found her slippers and veil in the field of Nana Lal

Meghwal. On the western side, the dead body of Smt. Dhuli Bai

was lying. The eyes of Smt. Dhuli Bai were punctured and her face

was crushed by blows of stones. Her both legs were also crushed

with stones. Both her legs had been chopped off and the silver

rings and bangles worn on the feet and hands as well as the gold

ear-rings worn in the nose, silver tops worn in the ears were

missing. It was stated in the complaint that unknown persons

killed her mother and looted the ornaments from her body.

On the basis of the said report, the Police registered an FIR

No.248/2011 for offences under Sections 302, 397 IPC and

started investigation. During the investigation, the appellant was

arrested. After usual investigation, the police filed charge sheet

(3 of 8) [CRLA-1158/2016]

against the accused-appellant for offence punishable under

Sections 302 & 397 IPC. The case was committed for trial to the

court of Additional Sessions Judge No.1, Udaipur where the

charges were framed against the accused-appellant. He pleaded

not guilty and claimed trial.

At the trial, the prosecution examined as many as 23

witnesses in all and exhibited 31 documents in documentary

evidence. Thereafter, the statement of the accused-appellant was

recorded under Section 313 Cr.P.C. No witness was examined on

the defence side. After conclusion of the trial, the learned

Additional Sessions Judge No.1, Udaipur vide judgment dated

21.09.2016 convicted the appellant for offence under Section 302,

397 IPC and awarded the sentences mentioned above.

Learned counsel for the appellant vehemently argued that

the prosecution case is based on circumstantial evidence and

there is no direct evidence against the accused-appellant

connecting him with commission of alleged offence. Learned

counsel submitted that there is no evidence on record that the

accused-appellant was last seen with the deceased. So far as the

recovery of ornaments allegedly made by the police from the

appellant, the ornaments were earlier shown to the witnesses so

they could identify the ornaments. It is further argued that there

is difference in the weight of the jewelry mentioned in the First

Information Report and those recovered on the information of the

accused. In nutshell, the learned counsel submitted that the

recoveries are wholly unreliable and the same are liable to be

discarded. In these circumstances, the learned trial Court was not

justified in convicting the accused-appellant for the offence under

(4 of 8) [CRLA-1158/2016]

Section 302 & 397 IPC. Learned counsel submits that the appeal

of the accused-appellant merits acceptance in the facts and

circumstance of the present case.

Per contra, learned Public Prosecutor opposed the

submissions advanced by learned counsel for the appellant. While

supporting the judgment of conviction passed by the learned trial

Court, he submitted that there is circumstantial evidence, which

fully connects the accused-appellant with the alleged crime. The

ornaments of the deceased-Smt. Dhuli Bai were recovered from

the accused-appellant and were correctly identified by PW-1 Nathu

Lal, the son of the deceased. He further submitted that after the

arrest of the accused-appellant, the blood-stained clothes were

recovered from his possession and the blood group on the clothes

of the appellant matched with the blood group of the deceased.

Thus, the prosecution was able to prove the allegations against

the accused-appellant beyond all manner of doubt. He submitted

that in these circumstances, the learned trial Court was perfectly

justified in convicting the accused-appellant vide judgment dated

21.09.2016 and the same does not warrant interference by this

Court.

We have heard the learned counsel for the appellant as well

as learned public prosecutor, perused the impugned judgment

passed by the learned trial court and also gone through the record

of the case.

The informant-Nathu Lal, who is the son of the deceased,

was examined as PW-1. He has stated that his mother went for

grazing buffaloes in the field of Nana Lal Meghwal on 06.10.2011

and in the evening, the buffaloes returned but his mother did not

(5 of 8) [CRLA-1158/2016]

come back. Thereafter, he along with other persons went for

search of his mother and saw the dead body of his mother lying

towards the western side of the field of Nana Lal Meghwal. Both

her legs had been chopped off and the ornaments worn by her

were missing. The accused-appellant was arrested on 15.10.2011

and recovery of ornaments was made from the possession of the

appellant. The identification of the ornaments was conducted from

PW-1 Nathu Lal vide Exhibit-P/10 and he correctly identified the

ornaments belonging to his mother. These ornaments were also

exhibited during the evidence of Nathu Lal at the trial and he

correctly identified the same to be of his mother.

PW-22 Pukhraj Shrimali is the Tehsildar, who got conducted

the test identification parade of the ornaments, which were

recovered at the instance of the accused-appellant. He deposed

that identification proceedings were faithfully held and the witness

Nathu Lal correctly identified the said ornaments in the

proceedings.

PW-6 Smt.Geeta Bai is the daughter-in-law of the deceased,

who mentioned that her mother-in-law Smt. Dhuli Bai went for

grazing buffaloes at about 1 O'clock in the afternoon. In the

evening, when buffaloes came back and her mother-in-law did not

return, then she informed her husband and after that, her

husband along with some other persons went in search of her

mother-in-law. The dead body of her mother-in-law was recovered

from the field of Nana Ram Meghwal. She stated that her mother-

in-law always wore jewelry items, which were missing from her

dead-body.

                                          (6 of 8)                      [CRLA-1158/2016]



     As per the post-mortem report (Ex.P-16),                          Smt. Dhuli Bai

received three injuries in all. There was bilateral amputation of

lower one third of both the legs. The fracture of Maxillary bone

was found and right leg Tibia bone was visibly fractured. The

cause of death was shock due to excessive bleeding from both the

legs, which shows that the deceased was mercilessly killed by the

assailant. As per the cogent testimony of the Investigating Officer,

PW-21 Hanwant Singh, the blood stained shirt and pant of the

appellant were recovered from his possession after his arrest.

According to the FSL report, the blood group on the clothes of the

appellant was found matching with the blood group found on the

clothes of deceased. The aforesaid circumstances form a complete

chain of circumstantial evidence unequivocally establishing guilt of

the accused-appellant.

On similar facts and circumstances, the Hon'ble Supreme

Court in the case of Gilbert Pereira Vs. State of Rajasthan,

reported in (2004) 12 SCC 281 held as under:-

"......The circumstances found proved against him conclusively establish that he must have committed the offence. As against that his defence that he was physically challenged and, therefore, not in a position to cause the injuries is unbelievable. The circumstances are so telling that even the trial court which placed implicit reliance on the evidence of DW-1 felt compelled to hold that the appellant must have snatched the ornaments from the deceased, though he may not have committed the murder. These ornaments were later recovered at the instance of the appellant which is a strong circumstance to prove his complicity.

(7 of 8) [CRLA-1158/2016]

46. Though, in our opinion, the circumstances proved against the appellant are conclusive in nature, being consistent only with the hypothesis of his guilt, we may observe that once his defence that he was not capable of committing the offence on account of the physical handicap suffered by him is rejected, the presumption under Section 114 of the Evidence Act can also be drawn. In the instant case, the evidence discloses that only a few hours after the occurrence, the appellant sold the gold chain to PW-11, from whose custody the gold chain was recovered only 4 days later at the instance of the appellant, who had no explanation to offer as to how he came in possession of the gold chain belonging to the deceased. The presumption therefore arises that the appellant was the culprit who removed the gold chain from the person of the deceased. This presumption coupled with the other circumstances adverted to above especially the unexplained injuries on the hand of the accused and the blood of same group being found on the clothes of deceased as well as accused, gives rise to further presumption that the removal of gold ornament and the fatal attack on the deceased should have taken place as part of the same transaction."

In the instant case, it has been established that the

appellant-Dhula was taken into custody on 15.10.2011 by the

police and on the information given by him to the Investigating

Officer under Section 27 of the Evidence Act, the police seized the

ornaments worn by the deceased. A test identification parade was

held in which the recovered ornaments were duly identified by

PW-1 Nathu Lal, son of the deceased, as belonging to the

deceased. No plausible explanation for being found in possession

of the said ornaments immediately after the murder has been

(8 of 8) [CRLA-1158/2016]

given by the accused-appellant. The evidence on record clearly

proves charges against the accused and point exclusively to his

guilt and of none else.

We are, therefore, of the view that the incriminating links of

circumstances proved by the prosecution against the appellant

from a complete chain, which is consistent only with the

hypothesis of guilt of the appellant. Each circumstance is

incriminating in nature and the totality of circumstances

conclusively establish the guild of the appellant.

Accordingly, this appeal being devoid of any merit, fails and

is hereby dismissed.

Record of the trial court be sent back forthwith.

                                   (MANOJ KUMAR GARG),J                                      (SANDEEP MEHTA),J


                                    NK/-









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