PRABHU ALIAS PRABHULAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal filed under Sec. 374 (2) Cr. P. C has been directed against the judgment dt. 11/6/90 passed by the learned Addl. Sessions Judge, Chittorgarh, whereby he found appellant Prabhu alias Prabhulal guilty of the offences under Ss. 302 and 201 IPC and sentenced him to life imprisonment to undergo six months' R. I. under the first Count and two years' R. I. and a fine of Rs. 500/- and in default to further undergo R. I. for three months for the second counts.

(2.) THE facts of this case can be recapitulated within a narrow compass. It is alleged that deceased Ganga Ram Maharaj aged about 70 years was living in the house of the appellant; that in the night intervening 21st and 22nd Nov. , 1987, appellant committed his murder inflicting blows to him by a handle of Kassi (Article 8) in the courtyard of his house; that thereafter he dragged his dead body; which was bleeding profusely by means of a rope, from his house to his room (Kotha) situated near his well. It is the case of the prosecution that appellant while going towards village Chanderia, was seen by PW 12 Purushot-tamlal in the morning of 22. 11. 87 and before him, the appellant made an extra judicial confession to the effect that he had killed Ganga Ram and placed his dead body in the room constructed near his well. THE appellant is also alleged to have informed Purushottamlal that he was going to the Police Station. It is further the case of the prosecution that in the courtyard of the house of the appellant, large quantity of blood was lying and it appeared that the same was covered by plastering the surface of the courtyard with mud; that marks of dragging were also visible in the path way from the house of the appellant and that at about 100-150 passage away from his house, a piece of blood stained rope and pair of shoes of the deceased lying near a shrub (Jhari) were also noticed by the villagers. Purushottamlal asked Mangu Jat and Madan Balai to go to the room situated near the appellant's well, who found that the dead body of Ganga Ram was lying there. Mangilal Jat in his turn also has informed PW 1 Pyar Chand about the incident. THEreupon, Pyar Chand lodged an oral report on 22. 11. 87 at 10 A. M. to PW 10 Mohanlal Head Constable of Police Station Chanderia, who scribed FIR Ex. P. l and registered a case under sections 302, 201 IPC. PW 5 Sajjan Singh Dy. S. P. rushed to the spot, prepared site plan and its memo Ex. P. 2 and Ex. P. 3 respectively. He noticed drops of blood lying beneath plaster of mud, which appeared to have been freshly made in the courtyard of the appellant's house and the marks of dragging going upto the shrubs, where a blood stained rope and a pair of shoes of the deceased were found lying. He seized the blood stained rope and a pair of shoes vide seizure memos Ex. P. 4 and Ex. P. 5 respectively. He also got the photographs of the house of the appellant, the place where the dead body of Ganga Ram was lying, of the shrubs and of the dragging marks visible on the way. Those photographs are Ex. P. 6 to Ex. P. 18 and their negatives are Ex. P. 19 to Ex. P. 25. It is alleged that after the said incident, the appellant absconded and was arrested on 7. 2. 88 vide arrest memo Ex. P. 40 in Ahmedabad and that in pursuance of his information memo Ex. P. 41 dt. 10/2/88, he got a blood stained handle of Kassi recovered from a hut situated in his house used for keeping the cattle vide recovery memo Ex. P. 26. THE appellant in pursuance of his information memo dt. 12. 2. 1988 Ex. P. 42 also got recovered one blood stained 'dhoti! from his house vide recovery memo dt. 15. 2. 88 Ex. P. 27. PW 5 Sajjan Singh also seized a pair of blood stained shoes vide seizure memo dt. 22. 11. 87 Ex. P. 30 from the room, wherein the dead body of Ganga Ram was found lying. It is the case of the prosecution that motbirs Mangilal Jat and PW 9 Girdhari before whom those pair of shoes were recovered had identified those belonging to appellant. After usual investigation, the police submitted challan against the appellant before the learned MJM, Chittorgarh, who committed the case to the Court of Addl. Sessions Judge, Chittorgarh.

(3.) MR. N. P. Gupta has strenuously contended that the learned Addl. Sessions Judge has committed a grave illegality in relying on the contents of memo of site plan and site inspection note Ex. 'p. 2 and P. 3, specially when the Investigating Officer and the motbirs did not prove those facts in their statements. He has submitted that no drop of blood or trail of blood was found from the alleged place of occurrence to the room where the dead body was alleged to have been found lying nor this fact finds mention in the memo of site plan and that there was no evidence to establish that the house and the room were in exclusive possession of the appellant. According to him, it stands well established from the prosecution evidence that in that house, appellant's father Ganesh, mother and other family members were also residing and hence this possibility cannot be ruled out that the alleged offence was committed by any other person. Moreover, no question as to whether that house and the room exclusively belonged to the appellant, was put to the appellant while recording his plea under sec. 313 Cr. P. C. Therefore, the learned Addl. Sessions Judge has committed a patent illegality in holding that the said house and the room were in exclusive possession of the appellant at the time of the alleged occurrence. MR. Gupra has further submitted that the alleged recoveries of the handle of the Kassi and the 'dhoti', which were admittedly made after more than two and a half months, were highly suspicious/doubtful and that there is no logic or reason to believe that the appellant would have kept the handle of Kassi and the blood stained 'dhoti' hidden or concealed for such a long period. Moreover, as per chemical report of the FSL, no blood group either on the blood stained clothes of the deceased or on the handle of the Kassi or dhoti or pair of shoes alleged to be those of appellant, has been determined. Therefore, the aforementioned recoveries do not connect the appellant with the crime. He has also contended that since no test identification parade of the shoes alleged to have been recovered from the room was conducted, it was not proved beyond reasonable doubt that those shoes belonged to the appellant. He has argued that investigation in this case has been conducted in a slipshod manner, because though PW 5 Sajjan Singh, Dy. S. P. had reached on the spot on 22. 11. 89 and prepared site plan and various memos, he did not care to prepare site plan and memo of the room (Kotha); where the dead body of Ganga Ram was found lying along with a pair of shoes. A site plan of that Kotha was prepared as late as on 4. 1. 88 by PW 8 Govind Singh, S. H. O. , which does not inspire any confidence and which is useless. According to him, the prosecution, evidence is vague, incomplete and unreliable and material chains in the circumstantial evidence are missing but the learned Addl. Sessions Judge has ignored them and committed a patent illegality in convicting the appellant.