Mohan Singh @ Munna @ Maanbahadur vs State of Rajasthan

Mohammad Rafiq, J.—This appeal seeks to challenge the judgment dated 10/02/2004 passed by the learned Additional District & Sessions Judge (Fast Track) No. 2, Sikar in Sessions Case No. 18/2003 by which, accused-appellant Mohan Singh @Munna @Maanbahadur:-

� was convicted for offence u/S. 449 IPC and sentenced to rigorous imprisonment of ten years with fine of Rs. 100/- and in default of payment thereof, he was sentenced to further undergo rigorous imprisonment for three months;

� was convicted for offence u/S. 302 IPC and sentenced to life imprisonment with fine of Rs. 1000/- and in default of payment thereof, he was sentenced to further undergo rigorous imprisonment for six months;

� was convicted for offence u/S. 457 IPC and sentenced to rigorous imprisonment of five years with fine of Rs. 100/- and in default of payment thereof, he was sentenced to further undergo rigorous imprisonment for two months;

� was convicted for offence u/S. 380 IPC and sentenced to rigorous imprisonment of five years with fine of Rs. 100/- and in default of payment thereof, he was sentenced to further undergo rigorous imprisonment for two months and

� was convicted for offence u/S. 279 IPC and sentenced to rigorous imprisonment of three months.

All the sentenced were ordered to run concurrently.

Brief facts of the case are that one Omprakash, Sarpanch of Gram Panchayat Gokulpura telephonically gave information to S.H.O. Police Station Kotwali at 8.30 a.m. on 27/12/2002 that they should immediately reach Hotel Friends as something wrong has been happened to Bareth Ji. Mehfuj Ali, SHO Police Station Kotwali made the entry to this effect in the Rojnamcha and reached the place of incident. Shrawan Kumar gave a written report to him there vide Exh. P.11 that he was working as Manager of the hotel for last six-seven years. Baldev Singh, retired Thanedar was caretaker of the hotel for last three-four years. Baldev Singh took his dinner and went to his room around 12 in the midnight to sleep. The informant also went to his room. Mahesh, an employee of the hotel, awakened him (informant) at 7.30 a.m. asking why Thanedar ji (Baldev Singh) did not wake up him on that day early morning as he used always do. They went to the room of Baldev Singh. It was locked from outside. When they peeped through window, they saw Baldev Singh lying dead on the bed. He had received a head injury. There were blood stains on the walls and a hammer was also lying by his side. Some unknown person had murdered Baldev Singh while he asleep. Scooter belonging to Baldev Singh with Registration No. RJV. 7053, which used to remain parked in the verandah of the hotel, has also been stolen.

Regular First Information Report was registered vide No. 587/2002 with Police Station Kotwali, Sikar vide Exh. P.58 for offence u/Ss. 302 and 379 IPC. The site plan (Exh. P.12) of the incident was prepared. The inspection of the hotel was prepared as Exh. P.1 and hammer was recovered and sealed vide Exh. P.2. One hand glove, which was smeared in blood and lying outside the hotel in the adjacent lane was also recovered vide Exh. P.3. The lock of Room No. 53 was broken open and sealed vide Exh. P.5. Blood stains from the floor was recovered vide Exh. P.6 and from the wall vide Exh. P.7. The Vial, Mattress, Bed-sheet and Trouser of deceased, which were all smeared in blood, were also recovered and sealed vide Exh. P.8. Underwear and Vest of the deceased was recovered and sealed vide Exh. P.10. Scooter of the deceased was found lying in the lane of Baluram Compounder, which was sealed vide Exh. P.13. The blood stains on the Scooter were recovered and sealed vide Exh. P.15.

The police after investigation, filed challan against the accused-appellant. The case was committed to the Court of Sessions. On committal of the case, the learned court below framed the charges against the accused-appellant for offence u/Ss. 449, 302, 457, 380 and 279 IPC but appellant denied to the charges and claimed to be tried. The prosecution produced as many as 33 witnesses and exhibited 95 documents and produced 23 keys as articles and 14 other articles. The defence did not produce any witness but exhibited 11 documents. The trial court after conclusion of the trial, convicted and sentenced the accused-appellant in the manner indicated above.

We have heard Shri Deepak Asopa, learned Amicus Curiae for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor and perused the material available on record.

Shri Deepak Asopa, learned Amicus Curiae for the accused-appellant while assailing the judgment of the trial court argued that accused-appellant has falsely been implicated in the crime inasmuch as, he was working as a Cook in the hotel but he left the job on 24/12/2002, two days before the date of alleged incident. He had no business to be in the hotel thereafter. It is only because he had given beating to Bappi Dey, another employee of the hotel that the accused-appellant has been falsely implicated at his instance.

Shri Deepak Asopa, learned Amicus Curiae for the accused-appellant has argued that the prosecution has failed to prove any motive why accused-appellant would take extreme step of murdering Baldev Singh. No witness has been produced to prove that accused-appellant was seen entering the hotel or coming out of the hotel. Recovery made from the rented room of village Badgaon does not conclusively connect the accused with the crime. Evidence of Devi Singh (PW13), who let out a room in his house to the appellant, does not prove that room was in the exclusive possession of the appellant. It was argued that evidence has proved that before Baldev Singh was engaged as Caretaker by the hotel owner, Shrawan Kumar (PW2) was Manager of the hotel and Kailash Chand (PW8) was its Cashier. Ever since Baldev Singh was engaged, they had no freedom to manipulate the accounts of the hotel and get some money from this. In fact, they have murdered Baldev Singh to get rid of him. Possibility of the accused-appellant being innocent cannot thus be ruled out.

Shri Deepak Asopa, learned Amicus Curiae for the accused-appellant submitted that the Rojnamcha Rapat (Exh. P.80) entered on the information given by Omprakash (PW4) does not mention as to who has been murdered in Friends Hotel. It raises doubt why when Omprakash had come to know about murder of Baldev Singh at 7.30, he did not inform the police till 8.30. It is submitted that alleged motive that deceased-Baldev Singh had subjected the appellant to beating because of the quarrel between the accused-appellant and Bappi Dey, has not been categorically mentioned in the written report (Exh. P.11) submitted by Shrawan Kumar (PW2) on the spot. If any such incident had taken place, there was no reason that it would not have been mentioned in the written report. This story has been concocted subsequently, which cannot be believed because Bappi Dey (PW9) not only slapped Mohan Singh but Kailash Cashier of the hotel also slapped this witness (Bappi Dey) at the askance of Baldev Singh. Learned counsel therefore argued that if at all it was a motive, it was for Bappi Dey for murdering the deceased-Baldev Singh, and he was very much present in the hotel on that day, whereas accused-appellant was not present. Virendra Kumar (PW16), son of the hotel owner has proved that deceased-Baldev Singh slapped the accused-appellant Mohan Singh twice and he got the dispute compromised between Bappi Dey and Mohan Singh. Once the dispute was compromised, there was no reason why appellant would nurture ill-will against the deceased. This is all the more so because Shrawan Kumar, Manager of the hotel has stated that appellant on 24/12/2002 cleared his accounts while voluntarily leaving the job. Accused-appellant was not seen by any one. No witness stated that he was lastly seen with the deceased or nearby hotel.

Learned Amicus Curiae referring to the statements of prosecution witnesses - Shrawan Kumar (PW2), Omprakash (PW4), Kailash Chand (PW8), Bappi Dey (PW9) and Mahesh (PW15), argued that all these witnesses have proved that main gate as well as channel gate of the hotel were locked during night and many of these witnesses have claimed that they were watching movie till about 2.30-3.00 in the night intervening 27/28.12.2002. That would mean that the main gate and channel gate were locked from inside. Then, there was no possibility of the accused-appellant entering the room of the hotel. These witnesses have also proved that the room in which Baldev Singh was found dead also locked from outside. This also raises serious doubt about veracity of the prosecution story. Learned counsel argued that Narendra Singh (PW17), Banwari (PW18), Chandra Prakash (PW27) and Jitendra Singh (PW28) cannot at all be treated as witnesses of last seen. Deposition made by them is full of contradictions and thus inspires no confidence. The chain of circumstance is not so complete as to rule out every reasonable hypothesis that may be compatible with the innocence of the accused-appellant. The appeal be therefore allowed and the impugned judgment be set-aside.

Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that the trial court has found guilt of the accused-appellant proved beyond all reasonable doubt. The motive of the accused-appellant behind the murder of Baldev Singh has been proved that only few days before the incident, he had given beating to the appellant and that only on 24/12/2002, he was removed from service. Learned Public Prosecutor has taken the court through the statements of Kanhaiyalal (PW1), Shrawan Kumar (PW2), Kailash Chand (PW8), Dilip Singh (PW11), Subhash Chandra Agrawal (PW14), Chandra Prakash (PW27) and Jitendra Singh (PW28) and argued that evidence conclusively prove guilt of the appellant and none else.

We have given our anxious consideration to the rival submissions and perused the material available on record.

Banwari (PW18) has also proved that around 5.30-6.00 in the morning he was going with carrot belonging to Buxaram in his taxi vehicle being sold in the market. When they reached near the lane of Baluram Compounder, they found that a Scooter had collided with a buffalo cart. Scooter rider was lying on the road with Scooter. They helped the Scooter rider to get up. Despite enquiry, he did not tell his name. The accused present in court was the same person. He has also identified him in the test identification parade before the Magistrate.

Kanhaiyalal (PW1), owner of the hotel has stated that he was running the Hotel Friends as well as Vishwas Fast Food Center in Sikar. Deceased-Baldev Singh was working as Caretaker of his hotel. Shrawan was Manager and Kailash was Cashier of the hotel. Mohan Singh was engaged as a Head Cook in the hotel about three months ago. He has proved the incident and the recovery of various articles from the hotel room.

Shrawan Kumar (PW2), Manager of the hotel has stated that Mohan Singh was Head Cook in the hotel. He found Baldev Singh lying dead in the hotel room and his Scooter was also stolen. The dispute had taken place between appellant Mohan Singh and Bappi Dey about fifteen-twenty days ago. Mohan Singh gave beating to Bappi Dey, who complained to Baldev Singh. Baldev Singh in turn gave beating to Mohan Singh and ultimately the dispute was compromised between both of them. Mohan Singh left the job on 24/12/2002. This witness has further stated that Mohan Singh was aware, where keys were kept. When they went to the Fast Food Center on 30/12/2002, the counter was found locked. When its lock was broken open, Rs. 150/-, passport of his brother Omprakash, his identity card, goggles, spice container, tea bags and keys etc. were found missing. Another report was lodged with the police station regarding the theft in the Fast Food Center. The police had recovered 23 keys of the hotel rooms from the room of the house in village Badgaon, which was let out to the accused-appellant. Kailash Chand (PW8), the Cashier of the hotel identified 23 keys of the hotel rooms recovered from the room of the appellant at his instance, before the Additional District Magistrate, Sikar.

Chandra Prakash (PW27) has stated that at about 5.30 a.m. on the fateful day, he was distributing the newspapers. When he reached near the Vishwash Fast Food Center, shutter of the shop was found open and there was light inside. When he went inside the shop, he found the accused-appellant present there. He handed over newspaper Punjab Kesri to him and went to the adjoining shop. After sometime, he saw that the accused-appellant had closed the shutter and went towards Kalyan Circle. He has identified the accused in the court and also in the test identification parade before the Magistrate.

Jitendra Singh (PW28) has stated that he was going to fetch milk at about 5.00-5.30 a.m. on that day. When he reached at the kachcha road towards western side of the Friends Hotel, he saw Scooter of Baldev Singh standing there. When he reached closer, he suddenly heard the sound from behind. When he turned back, he saw a bag being thrown on the road. Soon thereafter, a person jumped from the boundary wall. This person inquired from him about the way to Gokulpura but he went to the side of Roadways Depot saying that he would first get the petrol filled in the Scooter tank. Then he went on the Scooter towards the Roadways Depot. This witness has stated that he identified the accused in the court and also in the test identification parade before the Magistrate.

Evidence in this case has proved that Narendra Singh (PW17) with whose buffalo cart, Scooter of the deceased, which was stolen by the appellant, was hit by the appellant, has proved that around 5.15-5.30 a.m., the Scooter hit his buffalo cart in the lane of Baluram Compounder. Then, Scooter fell down with its rider. Buxaram and Banwarilal, who also came there with taxi, helped the Scooter rider to stand up. This witness has further stated that he was carrying the carrot for being sold in the market yard. That person was none other than the accused present in the court. He was carrying two bags and one plastic packet. He also identified him in court. This witness has also identified the accused-appellant in the test identification parade conducted by the Judicial Magistrate vide Exh. P.34.

Dilip Singh (PW11), auto rickshaw driver proved that he had dropped the appellant at the Friends Hotel late night in his auto-rickshaw. He identified the accused in the test identification parade as also in the court vide Exh. P.34.

Subhash Chandra Agrawal (PW14), a Chemist on the Agrawal Medical Store adjoining to the house of Devi Singh had proved that accused-appellant had purchased one pair of hand gloves from his shop for a sum of Rs. 16/-. He was tenant in the house of Devi Singh.

The hammer that was recovered from the place of incident was also sent to the F.S.L. for chemical examination and it contained human blood. The appellant was riding Scooter in rash manner and in that a state that he collided with the buffalo cart and fell down on the road with Scooter and despite asking the name by Banwari (PW18), who helped him to get up, he did not tell his name to this witness.

One of the hand gloves that was recovered nearby the place of incident and used by the accused in commission of crime has been found matched with another hand glove recovered from the room of the appellant at his instance vide Exh. P.30 & Exh. P.31 alongwith Punjab Kesri newspaper, broken Watch, Sketch Pen, Pent, Shirt, Vest, Identity Card and Knife vide Exh. P.37, which was also found containing blood stains. The Vial, Mattress, Bed-sheet and Trouser, which were smeared in blood were also recovered and sealed vide Exh. P.8. The Underwear and Vest of the deceased was also recovered and sealed vide Exh. P.10 and were also sent to the F.S.L. vide Exh. P.87 & Exh. P.88 and as per report of the F.S.L., the blood stains found thereon were of ''A'' group. The appellant was subjected to medical examination vide Exh. P.57, which has been proved by Dr. S.S. Sharma (PW20) saying that he had abrasions on both of his knees, which corroborates the statement of Narendra Singh (PW17) and Banwari (PW18) that while he was riding Scooter, the Scooter was collided with the buffalo cart and he fell down on the road and sustained those injuries.

The copy of the newspaper Punjab Kesri that was given by Chandra Prakash (PW27) to the appellant in the early morning of the fateful day has been recovered from the room of the appellant. Keys of the hotel room in which dead-body of deceased-Baldev Singh was found and bolted from outside, were recovered from the room of the appellant. The pent and shirt of the accused contained blood stains. They were sent to the Forensic Science Laboratory for chemical examination. The report of the F.S.L. (Exh. P.87) proved that it contained the blood of ''A'' group. The clothes of the deceased were also sent to the F.S.L. for chemical examination. They were also found containing the blood of ''A'' group.

All this evidence thus clearly proves the guilt of the accused and point to the guilt of only appellant and none else. Chain of circumstances against the accused-appellant is so complete as to rule out every reasonable hypothesis that may be compatible with the innocence of the accused-appellant.

We are therefore not persuaded to accept any of the arguments advanced by the learned Amicus Curiae for the accused-appellant. This appeal being devoid of merit, is dismissed. The record be sent back to the court below.

A copy of this judgment be sent to the Superintendent, Central Jail, Jaipur to be served upon accused-appellant Mohan Singh @ Munna @ Maanbahadur for his information.