SHANKAR ALIAS DULAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON July 10, 1999 P. K. Gupta (now deceased) came from Merrut to Jaipur and stayed in Hotel Chaudhary in room No. 208. In the morning of July 11, 1999, dead body of P. K. Gupta was found lying in pool of blood. The police investigation revealed that the accused appellants Shankar and Ganesh had committed murder of P. K. Gupta, thereafter they were indicted before the learned Special Judge SC ST (PA Cases) Jaipur, who vide Judgment dated November 13, 2001, convicted Shankar and Ganesh under section 302 alternatively 302/34 IPC and sentenced each of them to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer one year imprisonment.

(2.) THE prosecution story is woven like this:- On July 11, 1999 at 10. 30 AM the informant Rajesh Chaudhary (Pw. 1) (owner of Hotel Chaudhary) submitted a written report at Police Station Vidhayakpuri Jaipur with the averments that when around 8 AM he arrived at the hotel he found Man Singh a servant of the hotel and one Balachandran. Customer of Room No. 207 standing at the counter. He however did not find Ganesh and Shankar, the two waiters of the hotel to whom night duty was assigned. Telephone wire was found broken. When the informant checked the rooms of the hotel he noticed that room No. 208 was locked from outside. Room No. 208 was occupied by P. K. Gupta on July 10, 1999 at 9 PM. On receiving telephonic message Rakesh and Vikas, brothers of the informant rushed to the hotel. Vikas peeped into the key-hole of Room No. 208 and saw the legs of a person on the floor of the room. THE room was knocked but nobody gave response from inside. THE informant on being suspected some foul play, telephonically informed police station Vidhayakpuri. THE police arrived at the hotel and broke open room No. 208 where dead body of P. K. Gupta was found lying in a pool of blood and his attechee and cloths were missing. On the basis of the said report a case under section 302 and 380 IPC was registered and investigation commenced. Post mortem on the dead body was performed, accused were arrested, necessary memos in connection with recovery of weapon of offence, stolen money etc. were drawn, statement of witnesses were recorded and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/st (PA) Cases Jaipur. Charges for the offences under Sections 302 and 302/34 IPC were framed, who denied the charges and claimed trial. THE prosecution in support of the case examined as many as 36 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence, however no witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

(3.) IN order to appreciate the submissions of learned counsel for the appellant, we have carefully scrutinised the material on record. Ashok Gupta (Pw. 5) who was clerk in Urban Bank, in his deposition stated that the deceased had withdrawn a sum of Rs. 35,500 - from the bank on July 10, 1999. At the instance of accused Ganesh Rs. 35,500 - got recovered vide recovery memo (Ex. P-31) from the pocket of black Plant that was concealed in a basket covered by waste and filth. Rakesh Chaudhary (Pw. 6) deposed that on July 10, 1999 at 9 pm deceased came to the Hotel and made necessary entries in the Entry Register. The deceased was allotted Room No. 208. Rakesh Chaudhary when left the counter at 11 PM, accused Ganesh and Shankar, the waiters of the Hotel were on night duty. Hanuman Sahai (Pw. 4) and Tara Chand (Pw. 17) who were the constables of Vidhayakpuri and were on patrolling duty found around 3. 30 AM in the intervening night of July 10 and July 11, 1999 that one light of the second floor of Hotel Chaudhary was suddenly on and then turned off. It was again on and then off. Suspecting some foul play the Constables went to the Hotel and inquired as to what was going on. The accused Ganesh and Shankar along with one other person came down and explained that they were watching TV. Both the constables identified Ganesh and Shankar in the court. Siddeshwari Prasad (Pw. 8) Receptionist of Gayatri Hotel corroborated the testimony of Hanuman Sahai and Tara Chand. Presence of Hanuman Sahai. Tara Chand and Siddeshwari Prasad at the odd time of 3. 30 AM was quite natural. They are independent witnesses and we see no reason to discard their evidence. Recovery of blood stained iron pipes, keys and bottle of liquor were affected at the instance of the accused and necessary memos were drawn. It is no doubt true that Ummed Singh, IO could not be examined because he had gone out of the country and the memos drawn during identification were proved by secondary evidence but for the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot-free (vide State of U. P. vs. Jay Deo (2003) 1 SCC 456 ). As already noticed that before his death the deceased had consumed liquor but no empty bottle of liquor was found in room No. 208. One empty bottle of liquor was however recovered at the instance of the accused. The places from where recovery of money and weapon of offence got affected at the instance of the accused were not accessible to all. Only the accused could know that money which was stolen by them was kept in the pocket of a pant that was concealed in a basket under the waste and filth. The accused did not give any explanation that why they left the hotel without accomplishing their night duty. INformant Rajesh Chaudhary (Pw. 1) deposed that when he reached Hotel at 8 AM the accused Shankar and Ganesh were not there and waiter Man Singh and one Balachandran, customer of Hotel, were standing at the counter and telephone wire was found broken and Room No. 208 was locked from the outside and the key of the room was missing.