Rakesh Kumar @ Mota v. State of Uttarakhand

was lodged on 12.6.1996 at 11.45 am by Smt. Rajo Devi with the averments that his husband Jagram (deceased), aged about 55 years, was assigned duties of a guard at Mohalla Subhash Nagar in the Kothi of Sri K.C. Pant. She also resided there along with her husband. Otherwise, she is resident of village Ismilepur within the territorial jurisdiction of PS Chandpur, District Bijnaur. A fortnight before lodging of this FIR, accused appellants Chaman Singh, Mota and Sukhveer along with their two associates came at her residence on a jeep in search of her son Vinod. Vinod was not present in the house. On being asked by her and her husband Jagram, they disclosed the complicity of Vinod in the murder of Mintoo, son of accused appellant Chaman. When they did not find Vinod in the house, they all picked up Jagram from the house and forcibly took him away along with them. She was apprehensive that her husband Jagram might be killed. At the relevant time, her daughters Beena and Manju were also present in the house. Noticing the kidnapping of their father, they made noise. Although the neighbours of locality witnessed the incident, but none came forward in aid of the family. So, she immediately rushed to the nearby police station Claimant Town and lodged an FIR which is Ex. Ka-1. The police lodged the same under Section 364 IPC in the case diary. Chick report is Ex. Ka-2.

#4. After almost three days i.e. on 15.6.1996 at about 2 pm, one Amar Singh (examined by the 3 prosecution as PW9), resident of village Chehla within the territorial jurisdiction of PS Chandpur, District Bijnaur, informed the police that a dead body in decomposed state was lying in the jungle of village Ismilepur (parental village of deceased). This information is Ex. Ka-11. The police of the concerning station took the dead body in their possession. Thereafter inquest was conducted. The inquest report is Ex. Ka-5, which was prepared on 15.6.1996 between 5 pm to 6 pm. The deceased was about 50 years of age in the opinion of inquest witnesses and the dead body was at least 3 to 4 days old. So, it was swollen and maggots were present in the body. The body was sealed and sent for post-mortem to the District Hospital, Bijnaur where autopsy was conducted on the dead body on 16.6.1996 at 12.30 pm, but before conducting the post-mortem, the police could call Rakesh, son of deceased, who has been examined as PW5. He identified the dead body as that of his father Jagram. After conducting the autopsy, the dead body was handed over to his kins for cremation.

#5. The police investigated the matter and submitted the chargesheet against six persons for the offences under Section 364, 302 and 201 IPC. Out of these six, three were convicted, who are appellants before this Court, and rest of the three, namely, Ghanshyam, Taufik and Ashok were acquitted.

#6. The charges were levelled against accused persons on 24.9.1997. They all denied the charges and claimed trial.

#7. Prosecution has examined as many as ten witnesses. PW1 Smt. Rajo Devi is wife of deceased 4 Jagram. PW2 Manju Devi is daughter of deceased. PW1 and PW2 are eyewitnesses of kidnapping.

#8. PW3 SI Roop Chand Yadav, was Head Moharrir at the time of incident and he had registered the FIR in the General Diary maintained at the police station, copy of the same is Ex. Ka-3. PW4 is Constable Nardev Singh, who is the witness of recovery of rope, which was allegedly used in the strangulation of throat of the deceased. This rope was recovered on the pointing out of the accused appellant Chaman. Recovery memo was prepared on the spot on 4.7.1996, which is Ex. Ka-4.

#9. PW5 is Rakesh, son of the deceased. This witness has identified the dead body of the deceased in the mortuary of the hospital at Bijnaur.

#10. PW6 is Dr. A.K. Kaul, who conducted the autopsy on the dead body and proved that the maggots were present in the body of the deceased. He has stated that the deceased was of an ordinary stature. His body was in the advance stage of decomposition. His hair had become loose and could be easily pulled out. The nails were also loose. Lower portion of the body appeared as if it had been fed by animals. There were no apparent injuries on the body of the deceased. In the internal examination, inter alia, it was detected that the cause of death was asphyxia. But the bronchi were broken. Since there was no ligature mark on the neck, so it could not be opined that the rope was used as a means to break the bronchi.

#11. PW7 is Shakoor Khan, who is simply a witness of inquest, while PW8 is S.I. Charan Singh, 5 who had recovered the dead body from the jungle and sent it for the post-mortem. He has proved the sequence of his doings.

#12. PW9 is Amar Singh, who was the first person who had seen the dead body lying in the jungle and had informed the police station Chandpur. He has proved Ex. Ka-11, which he gave at the police station with the said information.

#13. PW10 Investigation Officer S.I. Ramesh Chand Sharma and he has also proved the submission of the chargesheet after a thorough investigation into the matter.

#14. Thereafter, statements of the accused were recorded under Section 313 CrPC. They all denied the veracity of the evidence and stated that the witnesses are inimical to them. However, they did not produce any defence witness. All the same, in their statements under Section 313 CrPC, they disclosed their desire to produce their defence.

#15. Having heard learned Counsel appellants and learned Counsel for the State, the Court feels that the most crucial and material witness of the incident are PW1 Smt. Rajo Devi and PW2 Smt. Manju, respectively the wife and daughter of the deceased, who had witnessed the occurrence of kidnapping of the deceased and were present in the house from where Jagram was kidnapped by the accused appellants. Both these witnesses have proved the entire sequence of the incident of abduction in similar terms. There is no contradiction or material inconsistency in the statements of either of these witnesses. Their version is 6 fully corroborated by the averments made in the FIR, which was lodged soon after the incident. The FIR was lodged just after 45 minutes of the incident while the police station is situated at a distance of nearly two kilometers from the place of incident. So, there was no chance of any manipulation, embellishment or exaggeration in the averments made in the FIR, which Smt. Rajo Devi had submitted in the police station in writing.

#16. The plea of learned defence counsel is that scribe of the report H.S. Verma was not produced. So, the accused could not exercise their valuable right to cross-examine the scribe. This plea is not so significant as to belie the whole prosecution story because scribe is the resident of same locality Subhash Nagar wherefrom the deceased Jagram was kidnapped. It was not unusual for an illiterate or semi literate woman to get it scribed by her neighbour H.S. Verma, and she did exactly that. Since it was promptly lodged at the police station, therefore, there was no probability of making it colourful by adding some extra and false allegations.

#17. The motive of the accused appellants has also been highlighted not only in the FIR but also in the deposition of PW1 Smt. Rajo Devi and PW2 Smt. Manju. Mintoo, son of the main accused Chaman, was assassinated three months prior to the incident, in question. This fact is also evident from the statement of PW1 Smt. Rajo Devi. She has stated in her cross- examination that her son Vinod was being tried for murder of the son of accused appellant Chaman. So, Mr. Chaman had a motive and he nurtured a belief that Mintoo (his son) was assassinated by Vinod, son of 7 deceased Jagram. Therefore, it was not unnatural on the part of Chaman to take revenge in the same coin from Vinod or his family. Consequently, on 12.6.1996, Chaman along with two other accused appellants and three other co-accused persons (acquitted by the trial court) came to pick up Vinod, but the latter was not present in the house. So, in order to accomplish his avenge, they kidnapped his father Jagram and subsequently killed him.

#18. Although the doctor has not confirmed that the bronchial tube was broken by way of tightening the rope, but the fact is there that death of Jagram was caused due to asphyxia and his bronchial tube was found to be broken. This fact finds corroboration from the recovery of the rope, which was recovered by PW4 Constable Nardev Singh at the instance of accused Chaman himself. This recovery memo is Ex. Ka-4. So, under Section 27 of the Indian Evidence Act, this recovery also corroborates and strengthens prosecution version.

#19. It has been contended on behalf of the appellants that the dead body was not identified before cremation. This argument has no substance because the dead body was duly identified by PW5 Rakesh, son of the deceased, in the mortuary of District Hospital, Bijnaur. So, there is overwhelming evidence that the dead body on which the autopsy was conducted was of deceased Jagaram only.

#20. Learned defence counsel has contended that no identification of the accused persons has been done by PW1 Smt. Rajo Devi and PW2 Smt. Manju. This contention is of no worth because Smt. Rajo Devi had 8 named three accused persons i.e. all three appellants in the FIR itself, who were known to her because they hailed from the same village Ismilepur i.e. the parental village of deceased. So, in these circumstances, there was no need to organize any identification parade.

#21. In view of what has been explicated above, this Court is of the considered opinion that the trial court has rightly recorded the finding of conviction of the accused appellants as the case stood proved against them beyond any shadow of doubt. Hence, the impugned judgment order warrants no interference by this Court. The appeal is devoid of merit and is liable to be dismissed.

#22. Consequently, the appeal is dismissed. Conviction and sentence awarded to each of the accused appellants is hereby affirmed. Impugned Judgment and order dated 25.3.2004, passed by the Additional Sessions Judge/FTC IV, Dehradun Sessions Trial No. 87/97, State v. Rakesh Kumar @ Mota & Others, is upheld. Appellants are on bail. Their bail bonds are cancelled. Sureties are discharged. They shall be taken into custody forthwith to serve out the sentence.

#23. Let a copy of this judgment and order be sent to the trial court for compliance. Lower court record be also sent back. (Servesh Kumar Gupta, J.) (Sudhanshu Dhulia, J.)

11.6.2012

11.6.2012 Prabodh