Som Nath @ Pappi vs State Of Rajasthan
2024 Latest Caselaw 8000 Raj

Rajasthan High Court - Jodhpur

Som Nath @ Pappi vs State Of Rajasthan on 12 September, 2024

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2024:RJ-JD:33243-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                   D.B. Criminal Appeal No. 219/1996

Som Nath @ Pappi
                                                                      ----Appellant
                                       Versus
State Of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Mr. Aditya Singh Rathore
For Respondent(s)            :     Mr. B.R. Bishnoi, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE MUNNURI LAXMAN

Judgment

Reserved on 06/08/2024 Pronounced on 12/09/2024

Per Dr. Pushpendra Singh Bhati, J:

1. This criminal appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges levelled against him and he be set at liberty."

2. The matter pertains to an incident which occurred in the year

1992 and the present appeal has been pending since the year

1996.

3. The accused-appellant laid a challenge to the judgment of

conviction and order of sentence dated 30.01.1996 passed by the

learned Special Judge for SC/ST (Prevention of Atrocities) Cases,

[2024:RJ-JD:33243-DB] (2 of 15) [CRLA-219/1996]

Udaipur, in Sessions Case No.28/93, whereby the present

accused-appellant has been convicted and sentenced as below:

     Conviction under                 Sentence                        Fine
         Section
302 IPC                     Life Imprisonment                 Rs. 2,000/-, in
                                                              default to undergo
                                                              further 6 months'
                                                              R.I.

However, vide the impugned judgment, accused-Ashok Kumar,

against whom offence under Sections 120-B & 498-A IPC was not

found to be made out, was acquitted of the said charges, while

extending him the benefit of doubt.

4. As the pleaded facts and the record would reveal, Laxman

Prasad (PW-1), who at the relevant time was posted as Head

Constable, Police Station, Hiran Magri, Udaipur, had submitted a

written report (Ex.P-55) on 19.12.1992 before the said Police

Station stating therein that on 12.12.1992, on receiving an

information from one Ashok Kumar and the persons accompanying

him, at the relevant time, to the effect that his (Ashok Kumar's)

wife-Rajkumari and cousin brother Somnath were not traceable,

the concerned SHO directed the said Laxman Prasad to go with

the said Ashok Kumar; in pursuance of such direction, the said

Laxman Prasad alongwith Karan Singh (the then Constable

No.178) departed from the Police Station, Hiran Magri with Ashok

Kumar and other persons, towards his (Ashok Kumar's) house.

4.1. It was further stated in the said report that on the way, the

said Laxman Prasad came to know about certain prolonged

[2024:RJ-JD:33243-DB] (3 of 15) [CRLA-219/1996]

uncordial marital relationship between Ashok Kumar and his wife-

Rajkumari, owing to which they both were living separately in the

same house. As per the report, the next day following the Diwali

Festival, Somnath, i.e. son (present accused-appellant) of Uncle

(Mahendra Sharma) of Ashok Kumar arrived from Indore, who

thereafter, started living with Ashok Kumar in his house and also

started working in Ashok Kumar's shop.

4.2. It was also stated in the report that on 12.12.1992 (date of

submission of the report), as per Ashok Kumar, the said Somnath

due to not feeling well, stayed at home and Ashok Kumar left the

house at 9:30 a.m. for his shop situated in Bapu Bazar after his

children went to school at 7:30 a.m.; when the children arrived

from school at 2:00 p.m., there were locks on the doors of the

rooms, their mother and uncle could not be found and despite

being enquired by the children in the neighbourhood, neither could

they get the keys, nor could know the whereabouts of their

mother (Rajkumari) and uncle (Somnath).

4.3. Thereafter, Dheeraj, elder son of Ashok Kumar, arrived at his

shop at 5:00 p.m. and informed Ashok Kumar about the locks put

on the doors of the rooms, whereupon, Ashok Kumar alongwith

Prabhu Dayal, Sultan Singh, Abhay Seth and others reached the

Police Station, whereupon, Constable Laxman Prasad alongwith

Constable Karan Singh, under the directions of the SHO, reached

the house of Ashok Kumar located in Verma Colony, and found

that there were locks on the rooms of Ashok Kumar and his wife-

[2024:RJ-JD:33243-DB] (4 of 15) [CRLA-219/1996]

Rajkumari. The door of kitchen was also closed, and outside the

kitchen, utensils were found in a scattered position.

4.4. It was further stated in the report that on being enquired in

the neighbourhood, Ashok Kumar came to know that no one had

seen his wife-Rajkumari on that day i.e. 12.12.1992.

4.5. As per the report, thereafter, Ashok Kumar opened the latch

(kunda) of his wife's room and found everything to be normal;

however, when the room of Ashok Kumar was opened, by breaking

the locks, it was found that there were blood stained footprints

(going towards the room). When the door of inner drawing room

was opened, blood and chili powder were found; a female dead

body, stained with blood, was found under the cot (charpai), who

was identified by Ashok Kumar, as his wife-Rajkumari (deceased).

4.6. On the basis of the aforementioned report, a case bearing

No.265/1992 was registered for the offence under Section 302 IPC

and the investigating commenced accordingly. During

investigation, Ashok Kumar (husband of deceased) and Somnath

@ Pappi (present accused-appellant) were arrested. After due

investigation, the police filed a charge-sheet under Sections 302,

201, 498-A & 120-B IPC and the trial commenced thereafter.

4.7. On 19.08.1993, the learned Trial Court framed the charges

against the accused-appellant (u/s. 302 IPC) and accused-Ashok

Kumar ( u/s. 120-B & 498-A IPC), the same upon being read over

both the accused, were denied by them and they claimed trial,

and the trial accordingly commenced.

[2024:RJ-JD:33243-DB] (5 of 15) [CRLA-219/1996]

4.8. During the trial, the prosecution produced 21 witnesses and

exhibited 62 documents; in defence, 03 documents were exhibited

for examination. The accused persons were examined under

Section 313 Cr.P.C., wherein while pleading not guilty, the accused

stated that they had been falsely implicated in this case.

4.9. Thereafter, upon hearing the contentions of both the parties

as well as considering the material and evidence placed on record,

the learned Trial Court, convicted and sentenced the present

accused-appellant, as above, vide the impugned judgment of

conviction and order of sentence dated 30.01.1996, against which

the present appeal has been preferred on behalf of the accused-

appellant. However, vide the same impugned judgment, accused-

Ashok Kumar was acquitted, as mentioned above.

5. Learned counsel for the accused-appellant submitted that

there was no eyewitness to the incident in question, and the whole

prosecution case is based solely on circumstantial evidence; apart

therefrom, despite the present case being pertained to murder,

the concerned investigating authority did not exercise due care

and caution during the course of investigation, and thus, the same

is apparently tainted and suffers from irregularities, which render

the whole prosecution story, right from the inception, unreliable

and unworthy of being believed.

5.1. Learned counsel further submitted that the prosecution has

clearly failed to establish any motive on part of the accused-

appellant, which may have resulted into commission of the crime

in question by him.

[2024:RJ-JD:33243-DB] (6 of 15) [CRLA-219/1996]

5.2. Learned counsel also submitted that the manner in which the

recovery of knife (weapon) and pant have been recovered on the

basis of the information given by the accused-appellant, clearly

reveals that the same was not done while duly adhering the

procedure laid down under the law, and thus, such recovery was

not worthy of being relied, so as to convict the accused-appellant

for the crime in question.

5.3. Learned counsel further submitted that without furnishing

any cogent reason or justification, the material witnesses got

examined after an inordinate delay. He also submitted that no Test

Identification Parade (TIP) qua the accused-appellant was

conducted.

5.4. Learned counsel also submitted that even assuming that the

prosecution has been able to prove its case regarding presence of

the accused-appellant at the place of occurrence on the date of

incident, but in the given circumstances, where there was no eye

witness to the incident in question and the prosecution case is

solely based on circumstantial evidence and there is absence of

any motive on part of the accused-appellant to commit the crime

in question, the alleged presence of the accused-appellant was not

a substantial piece of evidence to establish connection of the

accused-appellant with the crime in question.

5.5. Learned Counsel further submitted that the circumstantial

evidences relied upon by the learned Trial Court, depending upon

the testimony of PW 16-Dheeraj, the eldest son of the deceased,

cannot be the sole reason for conviction of the accused-appellant.

[2024:RJ-JD:33243-DB] (7 of 15) [CRLA-219/1996]

It was also submitted that PW-16 was only 11 years old when his

statement was recorded on 17.01.95 and was at a tender age of 9

years when the incident happened. It was further submitted that

the son, PW16-Dheeraj had turned hostile during the trial.

6. On the other hand, the learned Public Prosecutor appearing

on behalf of the State, opposed the aforesaid submissions made

on behalf of the appellant, while submitting that the accused-

appellant caused multiple injuries (24 stabbing wounds) to the

deceased, as a result whereof the deceased subsequently died due

to shock and injury to lung and neck blood vessels and

hemorrhage resulted by stab wounds. The injuries caused were

ante-mortem in nature and were sufficient to cause sudden death,

and therefore, the accused-appellant was rightly convicted by the

learned Trial Court vide the impugned judgment.

6.1. It was further submitted that while passing the impugned

judgment, the learned Trial Court relied on the circumstantial

evidence, which included the last seen theory depending on the

testimony of accused-Ashok Kumar, who has stated that he left for

his shop around 9:30 a.m., and at that time, the accused-

appellant (due to not feeling well) and the deceased were at

home.

6.2. It was also submitted that the accused-appellant hurriedly left

Udaipur for Mumbai via Indore, after the incident, as deposed by

PW.21 Umesh Kumar and PW.9 Ramkishan, as the said two

witnesses made arrangements for his (accused-appellant's)

departure.

[2024:RJ-JD:33243-DB] (8 of 15) [CRLA-219/1996]

6.3. It was further submitted that the accused-appellant was

arrested from Indore on 23.12.1992, had injuries on his hand

which included stitched wound on left hand between the index and

the middle finger, an injury in the healing stage on the ring finger

of left hand, and a simple injury on the right side of forehead,

which upon the medical examination of accused (conducted on

28.12.1992, Ex.P.- 61) were found to be caused within a duration

of 10 days.

6.4. It was also submitted that the recovery of knife and jeans

were made on the instance of the accused-appellant. The

recoveries had spots of human blood, which were identified at 'B'

Group, as mentioned in Ex.P. 14.

6.5. It was further submitted that the accused-appellant's

unsuccessful attempt of committing sexual offence with the

deceased, the presence of mirchi powder at the place of incident

as well as in the eyes of the deceased, clearly show that the

accused-appellant had the intention to cause death of the

deceased, and therefore, the learned Trial Court convicted him

under Section 302 IPC, which is justified in law.

7. Heard learned counsel for the parties as well as perused the

record of the case along with the judgments cited at the Bar.

8. This Court observes that the allegation against the accused-

appellant pertains to murder of deceased-Rajkumari, and during

the trial, Ashok Kumar (husband of deceased) has also been

arrayed as accused, but after considering the entire evidence and

material on record, the learned Trial Court, vide the impugned

[2024:RJ-JD:33243-DB] (9 of 15) [CRLA-219/1996]

judgment, acquitted the said Ashok Kumar, while convicting and

sentencing accused-appellant, as above.

9. This Court finds that the accused-appellant is the cousin

brother of Ashok and at the relevant time, was living with him and

the deceased, and the story of the prosecution is that on the day

of the incident in question, Ashok Kumar went to his shop, and his

children had gone to the school; the deceased and only the

accused-appellant were staying in the house; thereafter, upon the

children returned back from the school, PW.16-Dheeraj, (eldest

son of the deceased), at around 5pm, went to the shop and

informed Ashok that whereabouts of his mother and uncle are not

known. Thereafter, Ashok Kumar left the shop for Police Station

Hiranmagiri, Udaipur, whereupon the written report (Ex.P/55) was

submitted.

9.1. This Court further observes that PW.1- Lakshman Prasad

(Head Constable) and one Karan Singh, left for the house of Ashok

Kumar and upon reaching there, the doors of the house were

found locked, the kitchen was closed, the utensils were lying

outside in a scattered manner. Upon breaking open the doors, it

was found that in one of the rooms connected to the room of

Ashok Kumar, there was blooded footprints, blood was spread,

chili powder was spread and a blooded body was found under the

bed, who was identified by Ashok Kumari, as Rajkumari,

(deceased), his wife.

9.2. This Court further finds that the aforesaid story of the

prosecution was supported by PW.2- Prabhu Dayal, stating that

[2024:RJ-JD:33243-DB] (10 of 15) [CRLA-219/1996]

when PW. 16 gave information to Ashok Kumar, at that time, he

was also present with Ashok Kumar; the said version was also

fully supported by PW.10- Abhay Singh and PW.6-Sultan Singh.

10. This Court also finds that after committing the crime in

question, the accused-appellant immediately left for Mumbai via

Indore, and his ticket was booked by PW.9-Ram Kishan (Manager

of Jagdamba Travels). This Court further finds that there is no

explanation on record as to why the accused-appellant left for

Mumbai on the same date, i.e. the date of incident in question,

that too without any prior plan; such explanation was not

furnished even during the examination under Section 313 Cr.P.C.,

so also when the accused-appellant was arrested on 23.12.1992

from Indore, and therefore, the said conduct of the accused-

appellant creates a high degree of suspicion as regards his role in

the crime in question.

11. This Court further finds that the injuries were also found on

the body of the accused-appellant and report thereof i.e. Ex.P/21

was prepared by PW.7 Dr. G.L. Daad, who in his testimony has

stated that the said injuries were old i.e. sustained almost 10 days

prior, and the accused-appellant did not give any explanation, as

to how and under what circumstances, he has sustained the said

injuries.

12. This Court also finds that the postmortem of the deceased,

was conducted on 20.12.1992, by a Board comprising PW.7-Dr.

G.L. Daad, PW.15- Dr.Kamla and PW.18-Dr. Mangal, and report of

the said Board revealed that there were 24 stabbing wounds found

on the body of the deceased, with different measurements, which

[2024:RJ-JD:33243-DB] (11 of 15) [CRLA-219/1996]

could most likely be caused by repetitive blows from the sharp

object.

Relevant portion of the said injuries are reproduced hereunder:-

"1- pkj ekSds ij ?kko nks lseh x1@2 lseh- vkdkj ds xnZu ds nkkfguh vksj dku ds uhps ,d nwljs ds mij uhps Fks ftuesa ls nwljs uEcj dk ?kko 4 lseh xgjk gksdj ljokbdy rhljh ojVhojk rd xgjk Fkk ,oa nkfguh vksj dh tksxqyj o dsjhVhM osly dks dkV j[kk Fkk tcfd igyk rhljk o pkSFkk ?kko eka"kis"kh rd gh xgjk FkkA ;s mDr pksVsa ,d ls yxkdj pkj rd dh gSaA 2- pksV ua- 5 ls yxkdj 8 rd pkj ekSds gq, ?kko nks lseh x0-75 ls-eh- eka"kis"kh rd xgjk xnZu ds ihNs ds Hkkx ij chp ds ykbZ ij Fkks tks ehM ykbZu ls nkfguh vksj Fks ,oa ,d&nwljs ds mij Fks 3- pksV ua- 9 o 10 nks ekSds g,q ?kko izR;sd nks lseh x1@2 lsehx2 lseh rd xgjs nkfguh vksj Ldsiqyk ds mij Fks 4- pksV ua- 11 o 12 nks ekSds gq, ?kko izR;sd nks lseh x1@2 lseh- os gM~Mh rd xgjs nkfguh vksj ds Ldsiqyk gM~Mh ij FksA 5- pksV ua- 13 o 14 o 15 rhu ekSds gq, ?kko izR;sd nks lseh- baVw vk/kk lseh- eka"kis"kh rd dVs gq, nkfgus vksj Ldsiqyk ds van:uh cksMZj ij FksA 6- pksV ua- 16] 17 o 18 rhu ekSds gq, ?kko izR;sd nks lseh- x vk/kk lseh eka"kis"kh vkSj gM~Mh rd xgjs lhus ds ihNs nkfguh vksj Fks tks MksjLiykbZUl 8] 10] o 11 ds mij FksA 7- pksV ua- 19 ,d HkkSadk gqvk ?kko nkfguh Hkwtk ds chp Hkkx ij ckgjh vksj 2 lsehx0-75 lseh- x2 lseh- rd xgjk FkkA 8- pksV ua- 20 ,d HkkSadk gqvk ?kko 3-5 lseh x1 lseh- xgM~Mh rd xgjk cka;s da/ks ds mij ds Hkkx ij FkkA 9- pksV ua- 21 ,d /kkjnkj ?kko 2 lseh x1@2 lseh- eka"kis"kh rd dVk gqvk nkfgus da/ks ds ihNs ds Hkkx ij FkkA 10- ,d HkkSadk gqvk ?kko 2 lseh x 0-75 lsehx2lseh- rd xgjk isV ds nkfguh vksj mij ds Hkkx ij FkkA 11- ,d HkkSadk gqvk ?kko 0-3 lseh x0-2 lsehxpeM+h rd dVk gqvk Nkrh ds lkeus nkfguh vksj rhljs bUVjdksLVy is"k esa FkkA 12- pksV ua- 24 ,d HkkSadk gqvk ?kko 4-5 lseh x1lsehx5 lseh rd xgjk vkSj ckbZ vksj dh dksyj cksu ds mij da/ks ds ikl esa Fkk ftldk MkjsD"ku uhps dh vksj vkSj van:uh vksj tkrk gqvk ckabZ vksj dh i"kyh dks dkVrk gqvk ckabZ vksj ds QsQM+s ds mij dk yksc ,oa mlds mij dh >hYyh ij Hkh 2

[2024:RJ-JD:33243-DB] (12 of 15) [CRLA-219/1996]

lsehx1lsehxMs<+ lseh- vkdkj dk ?kko Fkk ,oa mij ds QsQM+s dh f>Yyh esa yxHkx vk/kh yhVj [kwu Hkjk gqvk FkkA"

13. This Court also finds that the police authorities recovered the

knife and jeans of the accused-appellant on the basis of the

accused-appellant's information itself under Section 27 of the

Indian Evidence Act, 1872 and the blood detected on the said

articles, were found to be human blood (Group 'B') as stated in

the F.S.L. Report (Ex.P/14); the same blood group was detected

on the deceased clothes and at the place of incident in question,

and thus, there was no inconsistency found as regards the said

recovery.

13.1. This Court further finds that the recovery effected from the

accused-appellant by the police authority is also supported by

PW.5-Ramesh Paliwal, PW.8-Narendra Kumar and PW.20-

Amarpuri.

14. This Court also observes that the present case is based

solely on the circumstantial evidence and as per chain of the

circumstantial evidence, it is expedient to have a look at the case

law pertaining thereto.

14.1. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Sharad Birdhichand Sarda

Vs. State of Maharashtra, (1984) 4 SCC 116, relevant portion

whereof is reproduced as hereunder-:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that

[2024:RJ-JD:33243-DB] (13 of 15) [CRLA-219/1996]

this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved"

and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

14.2 The circumstantial evidence in support of chain of events, as

available in the present case, is set out hereinbelow:

(a) After coming from Indore to Udaipur, the accused-appellant

started living with the family of the deceased.

(b) On the date of incident in question, only the deceased and the

accused-appellant were staying in the house, as Ashok (husband

of the deceased) and the deceased's children, went to shop and

the school, respectively.

[2024:RJ-JD:33243-DB] (14 of 15) [CRLA-219/1996]

(c) There is no evidence on record, which could show that the

accused-appellant left the house, before departure of Ashok and

his children from the house.

(d) The unexplained conduct of the accused-appellant regarding

the fact that he left Udaipur for Mumbai via Indore, immediately

after the incident in question.

(e) When the accused-appellant was arrested, the police found

sharp-edged injuries (as per injury report) on the hand of the

accused-appellant, that too remained unexplained on the part of

the accused-appellant.

(f) During the investigation, the police recovered the blood stained

weapon (knife) and blood stained jeans of the accused-appellant,

on the basis of the accused-appellant's own information under

Section 27 of the Indian Evidence Act, 1872.

(g) The blood found on the weapon and the jeans, as above, was

detected as human blood, and such blood of the same group was

also detected at the place of incident in question.

(h) The opinion of the Medical Board to the effect that the injuries

sustained by the deceased, were caused by the knife.

15. Thus, on the basis of above analysis of the documentary and

oral evidence so available on record, this Court do not find any

illegality or perversity in the impugned judgment of conviction of

the accused-appellant. The learned Trial Court has gone through

the evidence carefully and this Court has also undertaken the

same exercise, and in our opinion, the learned Trial Court has

committed no error whatsoever, in coming to the conclusion that

the accused-appellant had committed the alleged offence.

[2024:RJ-JD:33243-DB] (15 of 15) [CRLA-219/1996]

16. Consequently, the impugned judgment of the conviction as

well as the order of sentence dated 30.01.1996 passed by learned

learned Special Judge for SC/ST (Prevention of Atrocities) Cases,

Udaipur, in Sessions Case No.28/93 (State of Rajasthan Vs.

Somnath & Anr.) is upheld and the present appeal is accordingly

dismissed.

17. The accused-appellant is on bail, in pursuance of the order

dated 15.05.1996 passed in D.B. Criminal Misc. Bail (Suspension

of Sentence) No. 198/1996; his bail bonds stand forfeited, and the

accused-appellant is directed to be taken back into custody

forthwith, to be sent to the concerned Jail to serve out the

remaining period of sentence.

17.1. All pending applications stand disposed of. The record of the

learned Trial Court be returned forthwith.

(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J

SKant/-

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