Heeraram vs State
2021 Latest Caselaw 16945 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 322/2019

Heeraram S/o Shri Bhimaji, Aged About 42 Years, By Caste
Kumhar, R/o Village Chamunderi, Police Station Nana, District
Pali (Rajasthan). (At Present Lodged In Central Jail Jodhpur).
                                                                  ----Appellant
                                   Versus
State, Through P.p.
                                                                ----Respondent


For Appellant(s)         :     Mr. K.L. Thakur
                               Mr. M.S. Panwar
                               Mr. J.P.S. Choudhary
For Respondent(s)        :     Mr. N.S. Bhati, P.P.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE SAMEER JAIN

                                Judgment

Date of pronouncement : 15/11/2021

Judgment reserved on : 08/11/2021

BY THE COURT : PER HON'BLE MEHTA, J.

The accused appellant has preferred the instant appeal

under Section 374(2) CrPC being aggrieved of the judgment dated

16.10.2019 passed by the learned Special Judge, SC/ST

(Prevention of Atrocities) Cases, Pali in Sessions Case No.11/2013,

whereby has been convicted and sentenced as below :-

Offence      for Sentence awarded and fine imposed
which convicted
Section 302 IPC       Life imprisonment alongwith a fine of
                      Rs.50,000/- and in default of payment of fine,
                      to undergo additional rigorous imprisonment
                      of four months
Section 201 IPC       Rigorous imprisonment of seven years
                      alongwith a fine of Rs.50,000/- and in default
                      of payment of fine, to undergo additional
                      rigorous imprisonment of four months



                                       (2 of 15)                    [CRLAD-322/2019]

Brief facts relevant and essential for disposal of the

appeal are noted hereinbelow :-

Obaram (P.W.1) submitted a written report (Ex.P/1) to

the SHO, Police Station Nana, District Pali on 13.12.2012 alleging

inter alia that he had submitted a report regarding his younger

brother Nenaram having gone missing on 11.12.2012. While he

was looking out for his brother, his brother Dinesh (P.W.2) told him

that in the evening of 01.12.2012, Nenaram was seen having

liquor with Praveen S/o Bheema Ji, Heeraram S/o Bheemaji

Raingaram S/o Chataraji near a brick stack. He apprehended that

these three persons had conspired to kill Nenaram and the dead

body had been secreted.

On this report, the Investigating Officer took further

information from Obaram, who stated that his brother Nenaram

had no animosity whatsoever with Praveen, Heeraram and

Raingaram and that a sudden incident must have flared up, in

which his brother was assaulted. On the basis of this report, an

FIR No.236/2012 came to be registered at the Police Station

Nana, District Pali for the offences punishable under Sections 302,

201 IPC and Section 3(2)(v) of the SC/ST Act and investigation

was commenced. It is pertinent to note here that in the

endorsement after registration of the FIR, it was categorically

mentioned that the file of the Missing Person Report No.15 dated

11.12.2012 was being annexed with the file of the present FIR.

After registration of the FIR, investigation was

undertaken by Shyam Singh, Additional Superintendent of Police,

Bali, who arrested the accused appellant Heeraram vide arrest

(3 of 15) [CRLAD-322/2019]

memo Ex.P/8 on 13.12.2012 at 01.00 p.m. The Investigating

Officer claims that the accused Heeraram gave a voluntary

information (Ex.P/32) divulging that he and his companions had

concealed the dead body of Nenaram in a pit near the brick stack

in the field of Jagtaram and that he could get the same recovered.

The Investigating Officer further claims that acting in furtherance

of such information, the accused, the police team and the SDO,

Bali proceeded to the field of Jagtaram, where a spot was pointed

out by the Accused Heeraram, from where the bushes, bricks and

sand were removed and a denuded dead body was recovered vide

exhumation memo Ex.P/2. Fard Surat Haal Lash (Ex. P/3) and

Panchnama Laash (Ex. P/4) were prepared. The dead body was

subjected to autopsy at the hands of a medical board, which

issued the postmortem report Ex.P/18 taking note of numerous

injuries on the body of the deceased and opining that the cause of

death of Nenaram was shock due to injuries to vital body parts,

i.e. both lungs, associated with multiple fractures. The statements

of the witnesses were recorded under Section 164 CrPC. The

other three accused persons, namely, Ramesh Kumar, Praveen

Kumar and Raingaram @ Raghunathram, were also arrested and it

is alleged that acting on the information provided by the accused

Raingaram vide Ex.P/38, the clothes of the deceased were

recovered.

After concluding investigation, a charge-sheet came to

be filed against the appellant herein and the three co-accused

persons for the offences punishable under Sections 302, 302/34,

201 IPC and Sections 3(2)(v) and 3(2)(vi) of the SC/ST Act in the

(4 of 15) [CRLAD-322/2019]

court of the Judicial Magistrate, First Class, Bali, from where the

case was committed to the court of Special Judge, SC/ST

(Prevention of Atrocities) Cases, Pali for trial.

The trial court framed charges against the accused

persons in the following terms :-

Name of the accused Offences for which charged
Heera Ram                    Section 302, 302/34 IPC read with
                             Section 3(2)(v) of the SC/ST Act and
                             Section 201 IPC
Praveen Kumar                Section 302, 302/34 IPC read                  with
                             Section 3(2)(v) of the SC/ST Act
Ramesh Kumar                 Section 201 IPC read with Section 3(2)
                             (vi) of the SC/ST Act
Raingaram @                  Section 302, 302/34 and 201 IPC
Raghunathram

The accused pleaded not guilty and claimed trial. The

prosecution examined 27 witnesses and exhibited 41 documents

to prove its case. The accused, upon being questioned under

Section 313 CrPC and when confronted with the circumstances

appearing against them in the prosecution evidence denied the

same, claimed to be innocent and made a prayer for leading

defence evidence, but finally no oral evidence was led in defence.

After hearing the arguments advanced by the learned

Public Prosecutor and the learned defence counsel and upon

appreciating the evidence available on record, the learned trial

court proceeded to convict and sentence the appellant Heeraram

as above, whereas the co-accused persons, namely, Ramesh

Kumar, Praveen Kumar and Raingaram @ Raghunathram, were

acquitted of the charges by giving them the benefit of doubt. The

appellant Heeraram has preferred the instant appeal being

(5 of 15) [CRLAD-322/2019]

aggrieved of the judgment dated 16.10.2019. Mr. K.L.

Thakur, learned counsel representing the appellant, vehemently

and fervently contended that the entire prosecution case is false

and fabricated. The prosecution has tried to bring home the

charges against the accused on the strength of circumstance of

last seen as deposed by witness Dinesh (P.W.2) and the recovery

of the dead body of Nenaram, but both these circumstances have

been sought to be proved by cooked up evidence. He urged that

there is a serious discrepancy in the prosecution story regarding

the time and place from where the witness Dinesh allegedly saw

the accused persons and the deceased sitting together and

consuming liquor. While, in the evidence of Dinesh (P.W.2), brick

kiln, where he claims to have seen these persons sitting together

was alleged to be that of Heeraram, but when the site inspection

plan was prepared, the place of incident has been shown to be the

field of Jagtaram. Taking the court through the evidence of Dinesh

(P.W.2), Mr. Thakur urged that the place where the bricks were

stacked in the field of Jagtaram is at a significant distance from

the passage/road through which Dinesh was passing and thus, it

was impossible for the witness to have seen these persons sitting

together and consuming liquor. He further urged that Dinesh did

not specify the time when he saw Nenaram and the four accused

persons sitting together and thus, his evidence is fit to be

discarded. He further urged that Nenaram went missing on

01.12.2012. All the family members came to know that Nenaram

had gone missing immediately thereafter, but no effort whatsoever

was made to lodge a prompt report with the police. For the first

time, the matter was reported to the police as late as on

(6 of 15) [CRLAD-322/2019]

11.12.2012 by way of the missing person report. Significantly

enough, the missing person report was intentionally concealed

and thus, adverse inference needs to be drawn against the

prosecution for concealment of material document/evidence. He

urged that had there been an iota of truth in the prosecution case

that Dinesh had seen the accused and the deceased in each

other's company, then this fact definitely would have been

mentioned in the missing person report. However, the

concealment of the report brings the entire prosecution case

under a cloud of doubt and in all probability, this fact was not

mentioned in the document which was intentionally concealed to

overcome this fatal deficiency. He further submitted that Obaram

(P.W.1), the first informant, admitted in his cross-examination that

he did not cast any suspicion on anyone in the missing person

report and therefore, it can safely be concluded that the theory of

last seen as projected in the F.I.R. and in the evidence of Dinesh

(P.W.2) is totally cooked up.

Regarding the evidence of recovery of the dead body of

Nenaram at the instance of the accused appellant, Mr. Thakur

urged that the entire sequence of events by which the

Investigating Officer Shyam Singh (P.W.26) claims to have

recovered the dead body, is fabricated. He contended that by the

time the FIR came to be filed, the first informant could not have

had any idea about the manner in which the incident took place.

In this background, the note appended after the written report

that the accused indulged into an assault upon his brother after a

sudden quarrel makes it clear that the FIR is a post investigation

(7 of 15) [CRLAD-322/2019]

document. He further urged that the accused was arrested on

13.02.2012 at 01.00 p.m. vide arrest memo Ex.P/8. The

information Ex.P/32 under Section 27 of the Evidence Act was

recorded at 01.15 p.m. and the dead body was recovered vide

exhumation memo (Ex.P/2) prepared at 01.50 p.m. He drew the

court's attention to the statements of the two medical officers Dr.

Mahendra Dabi (P.W.19) and Dr. Hitendra Vagoriya (P.W.23) and

pointed out that the Investigating Officer had already given

information to the medical officers for conducting the postmortem

even before the recovery memo Ex.P/2 was prepared. Thus, as

per Mr. Thakur, the dead body had already been recovered and the

information Ex.P/32 as well as the recovery/exhumation memo

Ex.P/2 are fabricated post investigation documents, which deserve

to be discarded. Mr. Thakur vehemently and fervently drew the

court's attention to the findings recorded by the learned trial court

in the impugned judgment contending that the same are totally

conjectural and superficial.

Mr. Thakur further pointed out that the first informant

Obaram admitted in his cross-examination that the accused had

no animosity whatsoever with Nenaram. Thus, as per him, there

was no reason at all as to why they would indulge in violence with

the deceased. He further submitted that the prosecution led the

evidence of Dinesh (P.W.2) to prove the circumstance of last seen

against all the four accused persons. The trial court, however,

acquitted the three co-accused persons by distinguishing the case

of the appellant solely on the basis of the evidence of recovery of

the dead body, which by itself is fabricated. Thus, as per Mr.

(8 of 15) [CRLAD-322/2019]

Thakur, the trial court was totally unjustified in segregating the

case of the appellant and convicting him while disbelieving the

evidence of the prosecution qua the acquitted accused persons.

On these grounds, Mr. Thakur implored the court to accept the

appeal, set aside the impugned judgment and acquit the appellant

of the charges.

Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by Mr. Thakur and

urged that the prosecution has proved its case as against the

appellant by leading cogent and convincing evidence forming a

complete unbroken chain of circumstantial evidence. The witness

Dinesh (P.W.2), gave wholesome and convincing evidence

establishing the fact that the deceased was lastly seen in the

company of the accused while consuming liquor in the field near

the brick kiln of the accused Heeraram, whereafter he was not

seen alive. After being arrested, the accused Heeraram gave

voluntary information Ex.P/32 to the Investigating Officer Shyam

Singh (P.W.26) and in furtherance of such information, the dead

body of Nenaram was unearthed buried inside a sand pit. Only

the accused appellant could have known about the place, where

the dead body was secreted and his exclusive knowledge

regarding the dead body leads to the only inference that the

accused was the perpetrator of the murder. He urged that if at all

the appellant had received the information regarding concealment

of the dead body from some other source and he himself was not

the perpetrator of the offence, he was required to take such

defence and prove the same by preponderance of probabilities,

(9 of 15) [CRLAD-322/2019]

but rather than making any such effort, the appellant did not even

take such a plea in his statement under Section 313 CrPC. On

these submissions, learned Public Prosecutor sought dismissal of

the appeal and affirmation of the impugned judgment.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and carefully re-appreciated the evidence

available on record. Suffice it to say that the case of the

prosecution is based purely on circumstantial evidence in the form

of last seen and recovery of the dead body. The fact regarding

Nenaram having been murdered by use of violence was not

disputed by Mr. Thakur and is well-established from the

circumstance that the dead body was recovered buried

underground. In addition thereto, we have gone through the

evidence of the medical jurists Dr. Mahendra Dabi (P.W.18) and Dr.

Hitendra Vagoria (P.W.23) and the postmortem report Ex.P/18,

which clearly establishes that the cause of death of Nenaram,

aged 25 years, was mechanical violence. However, the

prosecution would have to prove the complete chain of

circumstances to establish that the appellant was solely

responsible for the murder of Nenaram. In this regard, the

prosecution projected two circumstances so as to bring home its

case. The first being last seen by virtue of the evidence of Dinesh

(P.W.2) and the second being the recovery of the dead body

allegedly made in furtherance of the information provided by the

accused under Section 27 of the Evidence act.

(10 of 15) [CRLAD-322/2019]

Before analyzing the evidence of Dinesh (P.W.2), we

would like to address the contention of the defence counsel

regarding the delay in lodging of the report and the concealment

of the missing person report. In this regard, we have carefully

gone through the evidence of Obaram (P.W.1), the first informant.

He categorically stated that he lodged the missing person report

on 11.12.2012 at the Police Station mentioning therein that his

brother had not returned home since 01.12.2012 and that there

was no suspicion regarding his disappearance. He asked his

younger brother Dinesh, who replied that he had seen Nenaram at

the brick stack of Heeraram in the night at about 7 to 8 o'clock.

In cross-examination, Obaram admitted that he received

information regarding Nenaram having gone missing on third day

of the month, but for the first time, he reported the matter to the

police on 11th. Manifestly, if Dinesh had seen the deceased sitting

with the accused persons consuming liquor and thereafter he was

not seen alive, then natural human conduct demanded that this

fact would be mentioned in the missing person report. However,

Obaram categorically admitted in his cross-examination that it was

not mentioned in the missing person report that anybody was

under suspicion for the alleged disappearance of Nenaram. In

addition thereto, the police officer who received the report

appended a note below the written report (Ex.P/1) that the

Missing Person Report No.15 dated 11.12.2012 was being annexed

with the file. However, SHO Dashrath Singh (P.W.25) admitted in

his cross-examination that the missing person report was not

available on the record. The concealment of this report by the

prosecution agency brings a grave cloud of doubt on the fairness

(11 of 15) [CRLAD-322/2019]

of the Investigating Officer's action and would definitely persuade

the court to draw an adverse inference against the prosecution.

On analyzing the evidence of Dinesh (P.W.2), the

alleged witness of last seen, it comes forth that he stated that on

the day Nenaram disappeared, he was going towards the brick

stack. He saw Nenaram with Heeraram, Raingaram and Praveen

besides the brick stack. Two to three days later, he came to know

that Nenaram was missing. The witness did not state the time, at

which he saw these persons sitting together. Obaram stated in his

evidence that Dinesh told him that he had seen the accused and

the deceased together at about 7 to 8 o'clock in the night.

Definitely, darkness would have fallen between 07.00 p.m. and

08.00 p.m. as the incident took place in December. Dinesh was

allegedly returning home from the field of Banshilal, where he

worked. He admitted in his cross-examination that Jagtaram's

field, where these persons were sitting, is at a significant distance

from the path through which he was passing. Therefore,

apparently, there was no possibility whatsoever that Dinesh would

have been in a position to see the accused and the deceased

sitting besides the brick kiln. Furthermore, from a perusal of the

statements of Obaram (P.W.1) and Dinesh (P.W.2), it becomes

clear that a serious contradiction regarding location of the brick

stack, where these persons were allegedly seen sitting together.

While Obaram alleged that Nenaram was seen sitting at the brick

stack of Heeraram, on the contrary Dinesh stated in his evidence

that he had seen Nenaram sitting at the field of Jagtaram. In

addition thereto, we are prompted to observe that the trial court

(12 of 15) [CRLAD-322/2019]

itself did not find the circumstance of last seen to be incriminating

against the co-accused persons, namely, Ramesh Kumar, Praveen

Kumar and Raingaram @ Raghunathram, and acquitted them and

thus, we are of the firm opinion that the evidence of Dinesh

regarding the circumstance of last seen is not convincing and he is

clearly an unreliable witness. It cannot be believed that if Dinesh

had seen his brother Nenaram with the accused persons on

01.12.2012 and he was not traceable thereafter, despite that the

relatives would have kept on searching for Nenaram in the village

and should have immediately reported the matter to the police.

In addition thereto, had there been any iota of truth in the

testimony of Dinesh then, there was no occasion for filing of the

missing person report and the family members would immediately

be expected to lodge the report of something untoward having

befallen the victim. Thus, the evidence of Dinesh (P.W.2) regarding

the circumstance of last seen deserves to be discarded.

After excluding the evidence of last seen, the only

circumstance which remains in the hand of the prosecution to

bring home is the charge of murder is in the form of recovery of

the dead body because the so-called eye-witness Yashwant

(P.W.14) did not support the prosecution case and was declared

hostile.

When we peruse the written report (Ex.P/1) submitted

by Obaram (PW.1) to the SHO, Police Station Nana on 13.12.2012

at 10.30 a.m., undisputably by that time, neither the witness nor

the Investigating Officer had any clue that Nenaram had been

murdered. In this background, mentioning of the fact in the report

(13 of 15) [CRLAD-322/2019]

that the three accused had joined hands to murder Nenaram after

a sudden quarrel and had secreted the dead body, creates a grave

doubt in the mind of the court that the FIR came to be registered

after the dead body had been recovered and was thus, rightly

branded as a post investigation document by the learned defence

counsel. For drawing this conclusion, we are persuaded by

numerous circumstances as appearing in the evidence of the

material prosecution witnesses. The procedure of recovery of the

dead body was sought to be proved in the evidence of Shyam

Singh, Additional S.P., Bali (P.W.26), who conducted investigation.

The witness stated in his evidence that the accused Heeraram was

arrested vide arrest memo (Ex.P/8) (prepared at 01.00 p.m.).

Thereafter the accused gave the information Ex.P/32 under

Section 27 of the Evidence Act to the Investigating Officer, which

was recorded at 01.15 p.m. and in this information, the accused

allegedly disclosed that he had secreted the dead body of

Nenaram in a trench near the brick stacks in the field of Jagtaram.

In furtherance of such information, the accused allegedly led the

police team to the field of Jagtaram from where the dead body

was dug out/exhumed in the presence of the SDO. The

exhumation memo (Ex.P/2) was prepared at 01.50 p.m. It can

safely be concluded that only after the dead body was dug out,

could the prosecution be sure that Nenaram had been murdered.

Thus, mentioning of the fact in the written report (Ex.P/1) that

Nenaram had been murdered by the accused gives rise to a strong

indication that the dead body had already been recovered

beforehand. In addition thereto, we would like to refer to the

evidence of Medical Jurist Dr. Hitendra (P.W.23), one of the

(14 of 15) [CRLAD-322/2019]

members of the medical board, who admitted in his cross-

examination that on 13.12.2012, he was on OPD duty between

09.00 a.m. and 01.00 p.m. The police gave the memorandum for

postmortem to his senior Dr. Mahendra Dabi, who in turn informed

him at about 01.18 p.m. for participating in conducting

postmortem. Manifestly, as the doctor had been informed to

conduct the postmortem at around 01.18 p.m., the claim of the

Investigating Officer that the dead body was recovered at 01.50

p.m. in furtherance of the information provided by the accused is

clearly falsified. The prosecution claims that a SDO was also

present at the spot when the dead body was exhumed. However,

the said SDO was not examined in evidence.

In wake of the discussion made hereinabove, we are of

the firm opinion that the prosecution theory regarding the dead

body of Nenaram having been recovered in furtherance of the

information provided by the accused Heeraram to the

Investigating Officer under Section 27 of the Evidence act is totally

cooked up and the said circumstance cannot be read in evidence

against the accused. The entire sequence of recovery of dead

body of Nenaram at the instance of the appellant Heeraram is a

sheer piece of fabrication. The trial court committed a grave error

while appreciating the evidence and recording the findings of guilt

against the accused appellant and convicting him by the impugned

judgment, which does not stand to scrutiny.

As a consequence, the instant appeal deserves to be

and is hereby allowed. The impugned judgment dated 16.10.2019

passed by the learned Special Judge, SC/ST (Prevention of

(15 of 15) [CRLAD-322/2019]

Atrocities) Cases, Pali in Sessions Case No.11/2013 is hereby

quashed and set aside. The accused appellant is acquitted of all

the charges. He is in custody and shall be released from prison

forthwith if not wanted in any other case.

However, keeping in view the provisions of Section

437-A CrPC, the appellant is directed to furnish a personal bond in

the sum of Rs.40,000/- and a surety bond in the like amount

before the learned trial court, which shall be effective for a period

of six months to the effect that in the event of filing of a Special

Leave Petition against the present judgment, on receipt of notice

thereof, the appellant shall appear before the Supreme Court.

                                   (SAMEER JAIN),J                                        (SANDEEP MEHTA),J


                                    Pramod/-









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