RAM KARAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 19.5.2007 passed by learned Addl. Distt. and Sessions Judge (FT), Chomu Distt. Jaipur whereby the accused appellant Ram Karan was convicted and sentenced as under:

(2.) The facts leading to this appeal are that an information was received on 3.7.2005 at about 7.35 pm that a dead body of a child was lying in Dabar Ki Pahari. On this information, Inayat Ali, ASI along with his party reached the place of occurrence where Ram Karan son of Kalu Ram made a written report that his brother Kishan Lal had started from his house on 30.6.2005 in the morning at about 7.30 am for a haircut but he did return back and as such, a report dated 2.7.2005 was lodged about Kishan Lal being missing. When the search was going on, the dead body of Kishan Lal was found in the ravines of Dadar. As the cause of death was known, an inquest report No.16/2005 under Section 174 Cr.P.C , 1973was made on 4.7.2005. Inayat Ali in his enquiry submitted report that looking to the place of occurrence and post mortem, the dead body of Kishan Lal has been thrown away in the deep ravines in order to conceal the evidence of crime. On this report FIR No. 204/2005 under Section 302, 201 IPC was registered and on investigation, the police concluded that the appellant is responsible for the crime and a charge-sheet under Section 302, 201 and 404 IPC was filed against the appellant in the Court of Judicial Magistrate, Chomu. The Court of Judicial Magistrate, Chomu committed the case to the Court of Distt. and Sessions Judge, Jaipur from where it was transferred for trial to the court of Addl. Distt. and Sessions Judge (Fast Track), Chomu. 4. The appellant was charged by the trial court for offence under Section 302, 201 and 404 IPC. As the appellant denied having committed the offences charged, the trial was commenced. The prosecution in its evidence examined P.W.-1 Ashok, P.W.-2 Raj Kumar, P.W.-3 Mahesh, P.W.-4 Bodu Ram, P.W.-5 Gopal, P.W.-6 Gautam, P.W.-7 Dinesh, P.W.-8 Babu lal, P.W.-9 Jagdish, PW-10 Lal Chand Kumawat, P.W.-11 Dr. Sumant Datta, P.W.-12 Bajran Lal, P.W.- 13 Tejpal, P.W.-14 Subhas, P.W.-15 Mahendra Singh, PW-16 Beena Bharti, P.W.-17 Gajanand, P.W.-18 Iniyat Ali, P.W.-19 Atar Singh and P.W.-20 Dr. Rajendra Kakkad. In defence evidence the appellant examined DW-1 Smt. Lali. 5. The learned trial court after hearing both the parties, passed the impugned judgment and order dated 19.5.2007. Hence this appeal has been filed. 6. Shri Anshuman Saxena, learned counsel for the appellant has argued that the entire prosecution evidence led against the appellant was sufficient even to create a genuine doubt about commission of any offence. The learned trial court on the evidence of interested witnesses of the family members of the deceased has wrongly concluded that the case against the appellant under above mentioned sections of Indian Penal Code is proved. It has been argued that the appellant infact has been falsely roped in this case on account of enmity in the circumstances that the police was able to locate as to who has committed the crime and the appellant was named by the interested witnesses on account of enmity and lurking suspicion. 7. It is argued that the case set up by the prosecution against the appellant is wholly unfounded in as much as according to the prosecution, it was the appellant who after 4 days of the elopement of Kishan Lal along with 5 others boys/children had gone to Dadar Ki Doongri where the dead body of the deceased was found. Had the appellant been the culprit, he would have never taken his associates to the place where the dead body was found. In fact, this is the circumstance which goes to prove that after 3 days when Kishan Lal did come back, the appellant and other associate went to search Kishan Lal and the dead body of Kishan Lal was first seen by Vijay Pal who called others to see the dead body and since Viajy Pal was having enmity with the appellant, the appellant was blamed as the culprit without any rhyme or reasons. 8. It is submitted that the learned trial court was wrong in concluding that the appellant was lastly seen with Kishan Lal and for this purpose, it relied on the evidence of Gautam Sen, who was the barber to whose shop Kishan Lal had gone for a Haircut. This witness has stated that Kishan lal had come alone and he also went away alone from his shop. P.W.-6 Gautam Sen was declared hostile by the prosecution and in his cross examination by the Public Prosecutor, he has stated that when Kishan Lal had come out at his shop after hair cut, then Ram Karan had come to give the grains for grinding. This statements of Gautam Sen can hardly be relied for concluding that the appellant was lastly seen together with the deceased. 9. It is submitted further that the learned trial court was patently wrong in concluding that the appellant was last seen with the deceased on the basis of the statement of father of deceased P.W.-4 Bodu ram and P.W.-1 Ashok. As far as Ashok P.W.-1 is concerned he has no where stated that the appellant Kishan Lal was seen by him together on the day Kishan lal disappeared form the village. There being no such statement of Ashok, the trial court has misread the statement to the prejudice of the appellant. P.W.-4 Bodu Ram, father of the deceased also does say that he has last seen Kishan Lal with appellant. In his statement Bodu Ram has stated that Kishan Lal had taken a cycle from the house and had gone for haircut but when he did come back Bodu Ram went to shop of Gautam Sen and Gautam Sen told Bodu Ram that after the haircut Kishan Lal had gone and Ram karan had come there for giving grains for grinding and thereafter had gone with Kishan. When Bodu Ram asked Gautam Sen as to whether Kishan Lal had gone alone or both of them went together, he told that both of them went together. Bodu Ram then went to house of Banshidhar Jangid where he met Sampati wife of Banshidhar and when Bodu Ram asked her about Kishan Lal, she told that Ram Karan and Kishan Lal were standing in the village at about 8.30 AM. It is respectfully submitted that this statement can be taken as evidence of last seen together in as much as the statement of Bodu Ram is hearsay and Sampati has been produced by the prosecution. In these Circumstances, it is crystal clear that the finding of the trial court about appellant being last seen with the deceased on the day of disappearance of the deceased is without any stratum of legally admissible evidence. 10. It has also been argued that the learned trial court has appreciated statement of P.W.-4 Bodu Ram that Babu Lal Gared and Raj Kumar had told him on 30.6.2005 that at about 2.30 PM they had seen Kishan with one boy also can be regarded as evidence of last seen together, firstly because name of the other boy has been mentioned and secondly because Babu lal Gared and Raj Kumar have been examined as witnesses. It is also submitted that the learned trial court has glossed over the fact that P.W.-4 Bodu Ram loged the report of elopement/disappearance of Kishan on 27.7.2005 at Police Station but these facts which have been lateron introduced by the prosecution for proving that the appellant and the deceased were last seen together were mentioned in the report. 11. The learned trial court was wrong in acting upon the evidence of extra judicial confession since according to P.W. -4 Bodu Ram extra judicial confession is said to have been made by the appellant to the police and the statement of P.W.-9 Jagdish does prove that the appellant had confessed the guilt in as much as in the statement under section 161 Cr.P.C., 1973 Jagdish PW-9 had stated that the appellant made confession having put Kishan Lal to death by strangulation. 12. It is also argued that the learned trial court was wrong in relying the evidence of P.W.-9 Jagdish Singh and that he has deposed in the presence of police. In fact, the statement of Jagdish is regarding the appellant confessing his guilt. He has made definite improvement in the court over the police statement and as such, statement of Jagdish Singh could have been relied to prove extra judicial confession especially since the trial court itself disbelieved statement of PW-12 Bajrang Lal and PW-4 Bodu Lal as regards extra judicial confession. The conclusion of the learned trial court that the appellant made confession since he was terrified on account of the possibility of his photo might have been leaked. This reasoning and part of evidence relied on by the trial court is simply a conjecture and does be constituted legally admissible evidence. 13. It is also submitted that the learned trial court was further wrong in relying upon the evidence of recovery of cycle from Lal Chand since there were different versions of P.W.-10 Lal Chand regarding the price demanded by him and secondly because according to Jagdish P.W.-9 the recovery was made at 10 AM in the day while according to Bajrang Lal P.W.-12 another witness of recovery it was paid at 10 PM in the night. 14. The evidence of recovery of the cycle was fake and bogus since the fact of cycle being with Lal Chand was known on 3rd or 4th of July, 2005. This fact was discovered at the instance of the accused under section 27 of Indian Evidence Act. In these circumstances, prior knowledge only disprove the recovery but further go to establish that the case against the appellant is entirely concocted. 15. Further, it is submitted that the learned trial court was wrong in relying on the evidence of Bajrang Lal P.W.-12 and Jagdish Singh P.W.-9 that their evidence does establish the fact of selling of the cycle to LaL Chand which was disclosed to these witnesses as well as to the police. It is further surprising that the bill/cash memo of the purchase of the cycle exhibited as P-10 was taken from the shopkeeper at Jaipur who had sold the cycle while there is no question of the cash memo/bill remaining with the shop keeper but it should have been in possession of the purchaser of the cycle. 16. The learned trial court did properly consider the evidence of the Doctor who conducted the post mortem examination that both the chambers of the heart of the deceased were empty, this itself went to make it doubtful whether the deceased was strangulated. It is further submitted that the learned trial court was wrong in brushing aside the major contradictions in the statement of P.W.-18 Inayat Ali, the investigating agency who has stated that the belt (ligature) was having any cuts while the doctor has stated that he had handed over the belt to the police after cutting it. 17. The circumstances alleged by the prosecution were proved by legally admissible evidence and the entire judgment is based on possibilities and surmises and conjectures and further because the circumstantial evidence was wholly insufficient to prove the offences charged against the appellant. 18. This appeal was listed before the Division Bench of this court on 27.1.2016, and an attention was drawn to the document (Ex.P- 17) a certificate issued by the Government Upper Primary School, Biharipura (Amer), Distt. Jaipur. In the school certificate, date of birth of the appellant was recorded on 8.7.1987. It was contended that on the basis of school certificate (Ex.P-17) issued by the Government School first attended by the appellant, the appellant was less than 18 years of age on the date of occurrence, hence is a delinquent juvenile in conflict with law. Reliance was also placed upon the judgment of Apex Court rendered in Hari Ram v. State of Rajasthan and anr. [(2009) 13 SCC 211] . It was contended that as per Sections 2(k), 2(l), 7-A of the Juvenile Justice (Care and Protection and Children) Act, 2000 (hereinafter referred to be as 'the Act of 2000') and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to be as 'Rules of 2007') read with Section 20 of the Act of 2000 as amended in 2006, a juvenile who had completed 18 years on the date of commission of the offence is also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(K) had always been in existence even during the operation of the 1986 Act. The said position has been re-emphasised by virtue of the amendments introduced in Section 20 of the Act of 2000 whereby the proviso and explanation were added to Section 20, which make it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of Section 2(l) of the Act of 2000, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed. It was argued that Section 7-A of the Juvenile Justice Act, 2000 made provision for the claim of juvenility to be raised before any court at any stage, as has been done in the present case, and such claim was required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1.4.2001, would be treated as juveniles, even if when the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. Since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force and on the date of the incident it has to be held that he was a juvenile. 19. Having relied upon the observations of Supreme Court in Hari Ram's case (supra), it is contended that the trial court vide order dated 4.1.2006 committed a grave error ignoring the school certificate and rely upon the report of ossification test. It is contended that the school certificate has to get precedence over ossification test conducted by the medical board. It is further contended that the trial court could doubt the authenticity of the school certificate by relying upon the medical report. 20. The Division Bench while taking into consideration all the submissions and evidence, passed the following the order on 27.1.2016: