Rajasthan High Court - Jodhpur
Sanwra vs State on 27 January, 2022
Bench: Sandeep Mehta, Sameer Jain
(1 of 22) [CRLA-1222/2015 and 1165/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1222/2015
Sanwra son of Shankar Lal, by caste Mali, Resident of Mandal,
Police Station Mandal, District Bhilwara.
[At present confined at Ajmer Jail]
----Appellant
Versus
State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 1165/2015
Govind Ram son of Madhu Meena, aged about 52 years, resident
of Mandal, Police Station Mandal, District Bhilwara.
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant (Sanwra) : Ms. Yogita Mohnani
For Appellant (Govind Ram) : Mr. B.L. Choudhary
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN
JUDGMENT
Judgment pronounced on ::: 27/01/2022
Judgment reserved on ::: 17/11/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
(2 of 22) [CRLA-1222/2015 and 1165/2015]
The appellants herein have been convicted and sentenced as
below vide judgment dated 07.11.2015 passed by the learned
Additional Sessions Judge No.2, Bhilwara in Sessions Case
No.6/2013:
Accused Sanwra:-
Offences Sentences Fine Fine Default
Under sentences
Section
302 IPC Life Imprisonment Rs.3,000/- 1 year's further
Rigorous
Imprisonment
365 read with 4 Years' R.I. Rs.1,000/- 6 months'
Section 120B further Rigorous
IPC Imprisonment
Accused Govind Ram:-
Offences Sentences Fine Fine Default
Under sentences
Section
365 read with 4 Years' R.I. Rs.1,000/- 6 months'
Section 120B further Rigorous
IPC Imprisonment
All the sentences were ordered to run concurrently.
Being aggrieved of their conviction and sentences, the
appellants have preferred these appeals under Section 374(2)
Cr.P.C. Since both these appeals arise out of a common Judgment,
they have been heard and are being decided together.
Briefly stated facts relevant and essential for disposal of the
appeals are noted hereinbelow:-
(3 of 22) [CRLA-1222/2015 and 1165/2015]
The complainant Prem Lal (PW-1), submitted a complaint
(Ex.P/23) at the Police Station Mandal on 09.11.2012 alleging
inter alia that two days earlier, at about 8 o'clock, his nephew
Shyamlal aged about 12 years, hereinafter referred to as the
victim, had gone to the colony of Jats for singing Gudaliya, (a kind
of folklore). At 9 o'clock, Shyamlal's companion Devi Lal and a few
more boys came and informed the complainant that the boy had
been forcibly taken away by the accused Sanwra, resident of
Mandal. A search was made for the victim and the suspect but
they could not be traced out. In the morning of 9.11.2012,
someone provided information that the dead body of a child was
lying on the embankment of Mandal Talaab on which, the
informant proceeded there and identified the dead body to be that
of the victim. It was further mentioned in the report that
alongwith Sanwra, his maternal nephew Nandlal had also been
seen.
On the basis of this report, an FIR No.264/2012 (Ex.P/25)
came to be registered at the Police Station Mandal for the offence
punishable under Section 302 IPC and the investigation was
assigned to Shri Rajmal (PW-15), SHO Police Station Mandal. The
Panchnama-Lash was prepared. The spot investigation memo etc.
were prepared. Blood stained soil and control soil were lifted from
the place of incident. The blood stained shirt and trousers of the
victim were also seized. The dead body was subjected to
postmortem at the Community Health Centre, Mandal and the
postmortem report (Ex.P/11) was issued opining that the cause of
death of the child victim was shock as a result of excessive
(4 of 22) [CRLA-1222/2015 and 1165/2015]
bleeding from the neck injury. An incised wound was noticed on
front of the neck extending from one side to the other. The neck
muscles, carotid vessels and the trachea were severed. A few
abrasions were noticeable on the body of the victim. All the
injuries were antemortem in nature. The accused appellant
Sanwra was apprehended on 10.11.2012 vide memo Ex.P/26 and
the accused appellant Govind Ram Meena was arrested on
12.11.2012 vide memo Ex.P/27.
Acting upon the voluntary information (Ex.P/32) supplied by
the accused Sanwra under Section 27 of the Evidence Act to the
Investigating Officer regarding concealment of the weapon of
offence, a knife was recovered from his house vide seizure memo
Ex.P/9. Acting in furtherance of the information (Ex.P/29)
provided by the accused appellant Sanwra under Section 27 of the
Evidence Act to the Investigating Officer, his clothes which were
concealed in a well, were recovered vide seizure memo (Ex.P/2).
Some more confessional informations of both the accused
appellants were recorded by the Investigating Officer. The blood
stained shirt and trouser of the victim seized vide memo Ex.P/6,
the blood stained soil and control soil lifted from the spot vide
memo Ex.P/7 and the knife (Ex.P/9) recovered at the instance of
the accused Sanwra were forwarded to the Forensic Science
Laboratory for comparison and serological examination from
where, a report (Ex.C/1) was received affirming the fact that the
clothes of the victim, the blood stained soil collected from the spot
and the knife recovered at the instance of the accused appellant
Sanwra, all tested positive for presence of 'B' group human blood.
(5 of 22) [CRLA-1222/2015 and 1165/2015]
After investigation, chargesheet was filed against the
accused appellant Sanwra for the offences punishable under
Sections 365, 302, 377/511 and 120B IPC and against the
accused Govind Ram for the offences punishable under Sections
120B, 365 read with Section 120B IPC and Section 377 read with
Section 120B IPC. As the offence under Section 302 IPC was
exclusively Sessions triable, the case was committed to the court
of Sessions Judge, Bhilwara from where, it was transferred to the
court of the Additional Sessions Judge No.2, Bhilwara for trial.
Charges were framed against the accused appellants in the above
terms. They pleaded not guilty and claimed trial. The prosecution
examined as many as 18 witnesses and exhibited 38 documents
to prove its case. The Forensic Science Laboratory report was
exhibited and marked as Ex.C/1. The accused were questioned
under Section 313 Cr.P.C. and were confronted with the
circumstances appearing against them in the prosecution case,
which they denied and claimed to have been falsely implicated.
The accused appellant Sanwra took a plea of alibi. The defence
examined two witnesses and exhibited 5 documents.
After hearing the arguments advanced by the learned
defence counsel and learned Public Prosecutor and upon
appreciating the evidence available on record, the learned trial
court proceeded to convict and sentence the appellants as above.
Hence these appeals.
Learned counsel Ms. Yogita Mohanani representing the
accused appellant Sanwra vehemently and fervently urged that
the entire prosecution case is false and fabricated. The appellant
(6 of 22) [CRLA-1222/2015 and 1165/2015]
Sanwra has been convicted on the basis of totally flimsy evidence
of last seen and the cooked up recovery of knife. As per Ms.
Mohanani, the witnesses of last seen have not given convincing
evidence. The circumstance of recovery of knife has wrongly been
relied upon by the learned trial court because the recovery is
totally concocted. Her alternative submission was that even if the
allegations levelled by the prosecution that the appellant Sanwra
slit the neck of Shyamlal with a knife is accepted to be true on the
face of record, then too, as per the evidence of the medical jurist,
the injury was not directly responsible for the death of the boy.
She urged that as per the evidence of the medical jurist who
prepared the post mortem report, the cause of death of the victim
was excessive bleeding. She placed reliance on the Hon'ble
Supreme Court's judgment in the case of Vijay Singh & Anr. Vs.
State of Madhya Pradesh reported in 2014 Cri.L.J. 2158, and
urged that at best, conviction of the accused appellant Sanwra can
be recorded for the offence punishable under Section 326 IPC. She
thus, implored the Court to accept the appeal of the accused
appellant Sanwra and to either acquit him or to suitably alter his
conviction and reduce the sentences.
Shri B.L. Choudhary, learned counsel representing the
appellant Govind Ram, vehemently and fervently urged that the
findings, which have been recorded by the trial court for
convicting the appellant Govind Ram in this case, are totally
conjectural. Not a single prosecution witness uttered a word
against the said accused. The learned trial court placed reliance on
the interrogational notes of the accused Govind Ram for holding
(7 of 22) [CRLA-1222/2015 and 1165/2015]
him guilty as above and as such, the findings recorded by the trial
court for convicting the accused appellant Govind Ram are
perverse on the face of the record. He thus, implored the Court to
accept the appeal of the accused Govind Ram and to acquit him of
the charges.
Learned Public Prosecutor on the other hand, vehemently
and fervently opposed the submissions advanced by the
appellants' counsel and contended that the appellants herein,
kidnapped the child with the intention of sodomizing him but when
they attempted to do so, the child resisted upon which, he was
killed by slitting his neck. He urged that the circumstances of last
seen and recoveries which were well established by cogent
evidence, form an unbreached chain of incriminating
circumstances pointing to the guilt of the accused beyond all
manner of doubt and hence as per the learned Public Prosecutor,
the learned trial court committed no error in convicting and
sentencing the appellants in the manner stated above. On these
submissions, learned Public Prosecutor sought dismissal of the
appeals and affirmation of the conviction of the appellants as
recorded by the trial court.
We have given our thoughtful consideration to the
submissions advanced at bar and have carefully perused the
impugned judgment and thoroughly re-analyzed the evidence
available on record.
From the admitted prosecution case, the allegation of taking
away the child is specifically attributed to the accused Sanwra
(8 of 22) [CRLA-1222/2015 and 1165/2015]
whereas, the allegation as against the accused Govind Ram is that
of conspiracy. There is no direct evidence against Govind Ram and
primarily, the prosecution has relied upon the interrogation
notes/informations of the two accused persons recorded by the
Investigating Officer under Section 27 of the Evidence Act for
seeking his conviction.
Now, we propose to discuss the evidence of the witnesses
examined by the prosecution to bring home the charges.
Prem Lal (PW-1) stated in his evidence that he saw Narayan
with Sanwra in Lord Mahadev's Fair which took place in the village
Mandal in the Shrawan month. However, the witness admitted in
his cross-examination that the fair sustains for 15 days and he
could not state the particular day on which he saw these two
persons together. Therefore, no convincing inference can be drawn
from the evidence of Prabhu Lal regarding the victim having been
lastly seen in the company of the accused Sanwra soon before he
was murdered.
Devilal (PW-2) is a child witness. He alleged in his testimony
that about nine months ago, he and his friends including Suresh,
Rahul and Sanwar had gone to sing folklores and reached the
Bada Mandir after the program was over. Sanwra came there in an
intoxicated state and asked Shyamlal to accompany him for
singing. Shyamlal resisted but Sanwra took him away forcibly. The
witness went to the Shyamlal's home and informed his father
about this incident. The witness stated that he did not see
Shyamlal alive thereafter and 2-3 days later, he received
(9 of 22) [CRLA-1222/2015 and 1165/2015]
information that Shyamlal had been murdered. The incident of
Shyamlal being taken away by accused Sanwra took place on the
day after Deepawali. The witness identified the accused appellant
Sanwra as the one who took the deceased away with himself. No
significant cross-examination was made by the defence counsel
from this witness for disputing the identity of the accused Sanwra.
Gopal (PW-3) was associated as a motbir in the recoveries
effected from the place where the dead body of the victim was
found. His evidence is formal in nature.
Narayan (PW-4) stated in his evidence that he worked in the
tent and light decoration establishment of one, Premji. In the
month of Shrawan, he had done light decoration at the Shanker
Bhagwan Temple. The time was about 8-9 in the night. Sanwra
came there and asked him for a sum of Rs.200/- and upon being
denied, he forcibly snatched away the memory card from the
witness's mobile phone and also beat him up. The witness
admitted in his cross-examination that he was not accompanying
the deceased Shyamlal when he went to sing the folklores.
Apparently, thus, the evidence of this witness does not give any
indication that he saw the accused and the deceased together
anytime before the murder.
Ashutosh (PW-5) was associated as panch witness in the
proceedings which were undertaken by the Investigating Officer
after recovery of the dead body of the victim from near the
Mandal talaab. His evidence is also more or less formal in nature.
(10 of 22) [CRLA-1222/2015 and 1165/2015]
Santosh (PW-6) was associated as motbir in the recovery
memo Ex.P/9 whereby, the accused Sanwra got a knife recovered
which was concealed under a heap of cowdung in his field. Nothing
significant was elicited in the cross-examination of the witness. He
stayed firm on the procedure whereby, the knife was recovered
and seized. Thus, from the evidence of this witness, the factum of
recovery of knife at the instance of the accused is fortified.
Rahul (PW-7) is a child witness. Upon being examined on
oath, he stated that he, Devu, Shyamu and Sanwra are friends.
They had gone to the temple and were singing folklores. The
accused Sanwra forcibly took away Shyamlal. They went and
informed Shyamlal's uncle that the accused Sanwra had taken him
away. Two days later, the dead body of Shyamlal was recovered
from near the talaab. In cross-examination, a suggestion was
given to the witness regarding enmity between him and Sanwra,
which he flatly denied. He admitted that Shyamlal was a friend of
Sanwra but on the fateful day, he was not agreeable to go with
the accused on which, he was kicked and forcibly taken away. A
pertinent suggestion was given by the defence to the witness on
which, he agreed that Sanwra took away Shyamlal with himself
saying that they had to go for singing Lodi Lores. On further
cross-examination, the witness admitted that Sanwra offered
money and took Shyamlal with him. Thus, slight contradictions do
appear in the evidence of the witness regarding the precise
sequence in which, the accused took away Shyamlal but such
minor variations are bound to appear in the testimony of a truthful
witness and do not affect evidentiary worth of his testimony.
(11 of 22) [CRLA-1222/2015 and 1165/2015]
Dr. H.S. Sahwal (PW-8) was a member of the Medical Board
which conducted autopsy of the dead body of the victim on
09.11.2012 and issued the postmortem report (Ex.P/11) wherein,
the Medical Board took note of an incised wound admeasuring 6.5
inches long and 1 inch wide on the front side of the neck of the
victim. The underlying muscles and blood vessels were all
severed. In addition thereto, two abrasions were noticeable on the
right arm of the victim. The Medical Board opined that the cause
of death of the victim was excessive haemorrhage leading to
shock. The absurd defence suggestion that the cause of death of
the victim was asphyxia or that he could have received such injury
by falling into a well or by a sharp stone, were emphatically
refuted by the Jurist. Thus, it is well established from the evidence
of Dr. Sahwal that the death of the child was homicidal in nature.
The sharp weapon wound was struck on the neck of the child with
great force severing the muscles and the vessels and thus,
intention as well as knowledge to cause death can be attributed to
the offender.
Dr. Pankaj Purohit (PW-9) was a member of the Mobile
Forensic Science Unit and assisted the police team in conducting
the spot inspection. His evidence is also more or less formal in
nature.
Girdhari (PW-10) stated that he was a crane operator and
worked in Gujarat. On 09.11.2012, Babu and Bholu Ram used to
work with him. Sanwra used to work with him prior thereto. Most
of the staff returned home on the festivals of Holi and Deepawali
and headed back to Gujarat together after the festival period was
(12 of 22) [CRLA-1222/2015 and 1165/2015]
over. Significant cross-examination was made from the witness
but he stuck to his version that Sanwra was not working with him
on 09.11.2012.
Mukesh (PW-12) stated that on 07.11.2012, he was watching
TV in his house. At that time, Prem Mali came and informed him
that Shyamlal had been taken away by Sanwra and he required
assistance to trace out the boy. Both went in search of Shyamlal
and Sanwra but could not locate them. Two days later, he came to
know that Shyamlal's dead body was lying on the embankment of
the Mandal talaab. The witness was associated in the steps of
investigation undertaken by the Investigating Officer at the place
from where, the dead body was recovered. The evidence of this
witness was only relevant to the extent that he got information
from Prem regarding the child having been taken away on
07.11.2012 itself and that he and Prem made an effort to search
for the child.
Prem Lal (PW-12) is the first informant. In his evidence, he
categorically stated that on 07.11.2012, Devilal, Suresh, Rahul
and Sanwra went to the Bada Mandir for singing folklores. In the
night at about 8 PM, Sanwra took Shyamlal away forcibly. Devilal,
Sanwarlal and Suresh came to him and informed him of this
incident. On hearing this, the witness alongwith his neighbour
Mukesh went to the village and looked out for the child at
numerous places but could not succeed. They continued their
efforts on the next day also, but to no avail. Information was
given to the relatives. They called Sanwra on telephone who
replied that he had left Shyamlal besides the village pond in the
(13 of 22) [CRLA-1222/2015 and 1165/2015]
night and that he himself had proceeded towards Maharashtra.
They again called Sanwra during night time, he replied that he
would bring Shyamlal back by evening. However, despite waiting
for whole of the night, Sanwra did not turn up with the child. On
the next morning they came to know that Shyamlal had been
killed by Sanwra by severing his neck and the dead body was lying
near the village pond. The witness lodged the written report
(Ex.P/23) and participated in various steps of investigation viz.
Preparation of panchnama lash, spot investigation memo, seizure
of the apparel of the victim, etc. In cross-examination, vague
suggestion of enmity with Sanwra was given to the witness which
he denied. The witness admitted that there was no previous
dispute whatsoever between the victim and Sanwra who took
Shyamlal with him on the very same evening on which, the child
had gone to sing the folklores with his friends. Just 10 minutes
later, the other boys accompanying Shyamlal informed the witness
about the incident on which, he made whole hearted efforts to
search for the boy. From the evidence of this witness, it clearly
comes to light that he got information from Shyamlal's friends that
he had been taken away by the accused Sanwra. Immediately
thereafter, the witness called Sanwra on mobile but he gave
elusive replies. However, in one conversation, Sanwra admitted
that he had left Shyamlal besides the village pond. In another
conversation, Sanwra told that he would bring the child back by
evening. The witness was confronted with certain parts of his
police statement (Ex.D/1). However, contradictions/ommissions so
elicited, are trivial and inconsequential and do not effect the
merits of his testimony. Thus, from the evidence of this witness, it
(14 of 22) [CRLA-1222/2015 and 1165/2015]
can be culled out that he was told that the child was taken away
by the accused and a little later, the accused himself answered the
mobile call made by the witness and confirmed the fact that he
had taken the child. This admission of the accused made during a
telephonic conversation is a material fact having a significant
bearing on the conduct of the accused.
Hari Shankar (PW-13), was associated as panch witness in
the memos (Ex.P/20) and (Ex.P/21) whereby, the accused Sanwra
pointed out the place of incident to the Investigating Officer.
However, since this place was already known to the Investigating
Officer from before, the fact of accused pointing out the same
place, becomes irrelevant.
Bhanwar Lal (PW-14) gave evidence which is more or less in
the nature of hearsay and hence, his testimony does not lead to
any inference against the accused Sanwra.
Rajmal (PW-15) was posted as SHO Police Station Mandal on
the date of the incident. He testified that he received a telephonic
information regarding dead body of a child lying on the
embankment of the Mandal Talaab at about 9.45 AM upon which,
he alongwith the other members of the police team reached the
taalab and saw the dead body which was identified to be that of
Shyamlal by his uncle Premlal and others. Premlal gave the
written report (Ex.P/23) on the basis whereof, FIR No.264/2012
was registered. Investigation was undertaken by Shri Rajmal. The
forensic team was summoned at the spot. Spot documents were
prepared. Blood stained soil and control soil, etc. were collected
(15 of 22) [CRLA-1222/2015 and 1165/2015]
from the place of incident. The dead body of the child was
subjected to postmortem at the CHC, Mandal from where the
report (Ex.P/11) was received. His apparel were seized. The
accused Sanwra was arrested on 10.11.2012 whereas, the
accused Govind Ram was arrested on 12.11.2012 vide memos
Ex.P/26 and Ex.P/27 respectively.
The accused Sanwra gave following informations to the
Investigating Officer and got recovered the following articles and
identified the places in the following terms:-
"During investigation, on 11-11-2012, Accused
Sawarlal, who was in custody, called out the
investigating officer and provided information
pertaining to the place where he murdered Shyamlal,
which is recorded in memo Ex.P/28.
During the same investigation, on 11-11-2012,
Accused Sanwra provided information pertaining to
clothes he had worn at the time of the incident. These
clothes had been tied with a rock and thrown in the
well, which was situated near his house on the farm.
The same information was recorded in memo Ex.P/29.
On 12-11-2012 at 02:00 PM, Accused Sanwra
provided information pertaining to the incident which
took place. He narrated that Govind Ram had proposed
to him that if he brought along a boy at night then in
return he would provide liquor for him and they would
indulge in sodomy together. Upon this, he coaxed a boy
named Shyamlal s/o Bhanwarlal into coming with him
to the bank of the pond. There, Accused Sanwra kept
waiting for Govind Ram, but he did not turn up. Thus in
the meantime, he started forcing himself on the boy
Shyamlal. To this the boy started screaming and
therefore he gagged the boy and slit his neck from the
front with a knife. He left thereafter. Subsequently he
met Govind Ram Meena in Chopa and informed him
that he had been waiting for him but he did not arrive
so he killed the boy Shyamlal with a knife. Upon
hearing this Govind Ram gave him Rs. 200/- and told
him that he will take care of the situation by hiding the
(16 of 22) [CRLA-1222/2015 and 1165/2015]
body. He further told accused Sanwra to take Rs. 200/-
and to cut and run. The accused further added that he
thus escaped. This information was recorded in memo
Ex.P/30.
On 12-11-2012 at 10:00 PM provided information
to the Investigating Officer pertaining to the knife with
which he murdered the boy Shyamlal had been hidden
in a room in his house. The Accused further stated that
he was willing to show the same to the Investigating
Officer. This information was recorded in memo
Ex.P/32.
On 13-11-2012, Accused Sanwra gave information
u/s 27 of the Indian Evidence Act, that after committing
the murder he went to Chopa and met with Govind Ram
Meena. There he informed Govind Ram that he killed
Shyamlal by first throttling him and then slitting his
throat with a knife. This information was recorded in
memo Ex.P/33.
As per the information received from accused
Sanwra, the clothes worn by him at the time of the
incident, had been recovered from the well which has
been recorded in Recovery Memo Ex.P/2."
Acting in furtherance of the information provided to the
Investigating Officer, the accused appeallant Sanwra took him to
his house and got a knife recovered concealed under a cowdung
heap vide memo Ex.P/9. In cross-examination, the Investigating
Officer admitted that he received telephonic information that the
dead body of the child was lying near the village pond upon which,
he reached the place at about 10 AM. About 15-20 villagers had
collected there. The body was seen lying on the embankment.
Vague suggestions were given to the Investigating Officer
regarding the incongruency in the submission of the report.
However, on going through the entire cross-examination as
undertaken from the witness, we are of the firm view that nothing
(17 of 22) [CRLA-1222/2015 and 1165/2015]
significant was illicited by the defence which can discredit the
testimony of the Investigating Officer.
Harish Kumar (PW-16), was posted as the head Constable at
the police station Mandal on the date of the incident. He gave
evidence regarding deposition of the muddamaal articles of this
case by SHO Shri Rajmal and transit thereof to the FSL, Udaipur,
with Constable Ganpatlal. Upon careful perusal of the statement of
the witness, we are duly satisfied that the evidence which he has
given is apposite on the aspect that the muddamaal articles which
were recovered by the Investigating Officer, remained in the
sealed condition till they were forwarded to the FSL for
medical/serological examination.
Lalu Ram (PW-17) was posted as a head Constable at the
Superintendent of Police office, Bhilwara. He gave evidence to the
effect that Ganpat Lal, Constable from Police Station Mandal,
brought muddamaal articles of this case to the office of
Superintendent of Police with the forwarding letter and associated
documents. The witness prepared the S.P. Office's forwarding
letter and thereafter, articles were handed back to the Constable
for onward carriage to the FSL. Shri Ganpatlal brought back the
receipt (Ex.P/37). This witness also gave unimpeachable
testimony on the aspect that the samples which were in a sealed
condition remained intact right from the time they were presented
to him till they were forwarded to the FSL for comparison.
Ganpatlal (PW-18), was the Constable who took the
muddamaal articles of this case from Shri Harish Kumar Constable
(18 of 22) [CRLA-1222/2015 and 1165/2015]
on 21.11.2012 and carried the same to the Superintendent of
Police Office and then onwards to the FSL. Evidence of this witness
is also unimpeachable and it is thoroughly established thereafter
that the muddamaal articles were carried to the FSL in an intact
condition.
Shankarlal Mali (DW-1), father of the accused appellant
Sanwra appeared as an evidence witness No.1 in an endeavor to
prove that his son Sanwra was a minor on the date of the incident.
However, the enquiry regarding the age of the accused appellant
Sanwra was culminated against him by the trial court vide order
dated 22.07.2013 which was never challenged and thus, the same
has attained finality. Otherwise, also, we are duly satisfied that the
attempt of the accused Sanwra to prove that he was a minor on
the date of incident is not established from the material/evidence
available on record.
When the accused Sanwra was questioned under Section 313
Cr.P.C. and upon being confronted with the circumstances
appearing in the prosecution evidence, the accused made a bald
denial. However, he did not offer any explanation for the
incriminating circumstances.
From an overall appreciation of evidence available on record,
we are duly satisfied that the prosecution has presented plausible
and convincing evidence to prove that the accused appellant
Sanwra lured the victim Shyamlal away in the late hours of
08.11.2012 and he was not found alive thereafter. The dead body
of the child, with his throat slit, was found lying besides the village
(19 of 22) [CRLA-1222/2015 and 1165/2015]
pond on 09.11.2012. The victim was lastly seen in the company of
the accused Sanwra before being found murdered with a slit
throat. By virtue of Section 106 IPC, the burden is shifted on to
the accused to explain as to how the child received the fatal injury
on his neck while being in his company. As per the FSL report
(Ex.C/1), the shirt and pant of the deceased, the blood smeared
soil collected from the place of incident, and the chaku (knife)
recovered at the instance of the accused appellant Sanwra, all
tested positive for presence of 'B' group blood. Manifestly, thus,
circumstance of last seen together coupled with the circumstance
of the recovery of the blood stained knife bearing the human
blood group same as that of the deceased i.e., 'B' positive,
establishes beyond all manner of doubt that the accused appellant
Sanwra was unquestionably responsible for inflicting the fatal knife
blow to the child victim Shyamlal.
The fervent contention of learned counsel Ms. Mohnani that
the accused appellant Sanwra has been acquitted from the charge
for the offence punishable under Section 377/511 IPC and thus, it
has to be inferred that there was no motive for him to have
committed the offence, is totally untenable for the reason simply
because injuries were not found on the Anal Orifice of the victim
and that by itself does not establish that the accused appellant
Sanwra had no motive to kill the victim. It appears that while the
accused was trying to force himself upon the child to satisfy his
lust for unnatural intercourse, the child must have
shouted/resisted upon which, the accused panicked and slit his
neck with the knife. Thus, the absence of motive does not weaken
(20 of 22) [CRLA-1222/2015 and 1165/2015]
the prosecution case in any manner. The last argument of Ms.
Mohnani, was based on hon'ble Supreme Court's Judgment in the
case of Vijay Singh (Supra). She urged that conviction of the
accused appellant Sanwra has to be toned down from the offence
punishable under Section 302 IPC to Section 304 part II IPC or to
Section 326 IPC.
In this regard, we have carefully perused the hon'ble
Supreme Court's Judgment in the Vijay Singh (Supra) and find in
the said case that Hon'ble the Supreme Court toned down the
offence from Section 302 IPC observing that the prosecution could
not prove that injuries attributable to the appellant therein or any
of them, was the cause of death. In the case at hand, situation is
totally different because it is a case of the accused assaulting and
inflicting the fatal knife blow on the neck of the child.
The Medical Jurist Dr. H.S. Sahwal (PW-8), who was one of
the members of the Medical Board, which conducted postmortem
upon the dead body of the child clearly opined that the neck of the
child was slit. The cut wound was admeasuring 6.5 inches in
length and 1 inch wide. All the underlying muscles and vessels
were cut.
On a perusal of the postmortem report (Ex.P/11), it becomes
evident that even the blood vessels and the trachea were severed.
Thus, the injury on neck, which is pertinently attributed to the
accused appellant Sanwra, was unquestionably the cause of death
of child victim. The reasoning given in the judgment of Vijay
Singh (Supra) relied upon by the learned defence counsel does
(21 of 22) [CRLA-1222/2015 and 1165/2015]
not apply to the case at hand and thus, the said Judgment is
clearly distinguishable on facts. The case of the appellant is not
covered by any of the exceptions to Section 300 IPC. Hence, we
are of the firm view that appreciation of the evidence as
undertaken by the trial court, while convicting the accused
appellant Sanwra for the offence punishable under Section 302
IPC sentencing him to Life Imprisonment, is unimpeachable.
On an appreciation of the evidence of the prosecution
witnesses, we are of the firm view that so far as the accused
Govind Ram is concerned, none of the prosecution witnesses has
given evidence of last seen against him. Primarily, the prosecution
case as against the accused Govind Ram, is based on confessional
statements of the accused recorded by the Investigating Officer
which did not result into discovery of any incriminating fact. Thus,
conviction of the said accused as recorded by the trial court is
totally unsustainable.
In wake of the discussion made hereinabove, this Court is of
the firm view that the impugned judgment, so far as it records the
conviction of the accused appellant Sanwra for the offence under
Section 302 IPC and the sentence of Life Imprisonment awarded
to him, does not suffer from any infirmity whatsoever warranting
any interference therein. However, so far as the accused Govind
Ram is concerned, his conviction and sentences as recorded by
the trial court vide the very impugned judgment for the offence
under Section 365 read with Section 120B IPC cannot be
sustained.
(22 of 22) [CRLA-1222/2015 and 1165/2015]
Accordingly, the appeal (D.B. Criminal Appeal No.1222/2015)
preferred by the accused appellant Sanwra is dismissed as being
devoid of any merit. The appeal (D.B. Criminal Appeal
No.1165/2015) preferred by the accused appellant Govind Ram is
allowed. The impugned judgment dated 07.11.2015 passed by the
learned Additional and Sessions Judge No.2, Bhilwara in Sessions
Case No.6/2013 so far as it records the conviction of the accused
appellant Govind Ram, is quashed and set aside. The accused
appellant Govind Ram is on bail. He need not surrender. His bail
bonds are discharged.
However, keeping in view the provisions of Section 437-A
Cr.P.C., the appellant Govind Ram 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 appellants shall appear before the Supreme
Court.
Record be sent back to the trial court forthwith.
(SAMEER JAIN),J (SANDEEP MEHTA),J
/tarun goyal/-
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