Allahabad High Court
Raghuraj Singh vs State Of U.P. on 9 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AC:70097-DB Court No. - 47 Case :- CRIMINAL APPEAL No. - 5482 of 2013 Appellant :- Raghuraj Singh Respondent :- State of U.P. Counsel for Appellant :- P.C. Srivastava,Abhishek Mayank,Abhishek Srivastava,Akhilesh Srivastava,Kamlendra Singh Jadaun,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Singh Sangwan,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Per Hon'ble Arvind Singh Sangwan,J.)
1. This appeal has been preferred against the judgment of conviction dated 16 November 2013, vide which appellant Raghuraj Singh was held guilty of offence under Section 394, 302 and 376 IPC, whereby co-accused Pintu alias Dharmendra was acquitted of the charges as well as the order of sentence dated 16.11.2013 vide which the appellant Raghuraj Singh was awarded life imprisonment with fine Rs.20,000/- under Section 302 IPC and in default of payment of fine to further undergo six months imprisonment.
2. The appellant was also awarded 10 years rigorous imprisonment and Rs.10,000/- fine under Section 394 IPC and in default of payment of fine to further undergo three months custody. The appellant was awarded 10 years rigorous imprisonment and Rs.10,000/- fine under Section 376 IPC and in default of payment of fine to further undergo three months custody. All the sentences were ordered to run concurrently.
3. As per the custody certificate, the appellant has undergone 11 years and 2 months of actual custody, as he was never granted bail during the trial as well as after filing of the present appeal.
4. Heard Sri Abhishek Mayank, learned counsel for the appellant as well as counsel for the State has addressed the arguments on main appeal.
5. The lower court record is requisitioned and the paper books are ready. The entire evidence with assistance of learned counsels is re-appreciated.
6. The brief facts, as per the prosecution version are that appellant Raghuraj Singh faced trial in S.T. No.1194 of 2003 (State Vs. Raghuraj Singh and others), arising out of Case Crime No. 45 of 2003, under Sections 302, 394, 376 of IPC, P.S. Quarsi, District Aligarh on 01.03.2003 with the allegation that he was working as guard in the house of deceased Vibha Bhatia. About one year ago some persons have made an attempt to murder Vibha Bhatia, and thereafter, those accused were arrested. Due to this reason the appellant was appointed as a security guard by deceased Vibha Bhatia. On the intervening night of 28.02.2003 and 01.03.2003 Vibha Bhatia, her grand-father Kumar Krishna Bhatia and one servant Narendra and the informant Raghuraj Singh locked the main door of the house at about 09:30 pm and went to sleep. In the next morning at about 05:30 am he opened the door of the drawing room and found that the dead body of Vibha Bhatia is lying on Sofa and the outer door was open. The report was registered by accused himself with the police that some unknown persons by slitting the throat of Vibha Bhatia has committed her murder. Later on, the police conducted the investigation, and during investigation, appellant alongwith co-accused Pintu alias Dharmendra who is the brother-in-law (brother of the wife of appellant was nominated as an accused).
7. The trial court framed charge under Sections 394, 376, 302 I.P.C. The appellant did not plead guilty and claimed trial.
8. In prosecution evidence, the statement of PW1 Narendra was recorded, who has stated that he knew the accused persons. About 10-12 years prior to the incident he was working in the house of K.K. Bhatia, who is father of the deceased Vibha Bhatia. About two years ago he had left the job and has gone to his village. In the mean time K.K. Bhatia employed a person named Sonpal as his servant. The conduct of Sonpal was not good and therefore his services were terminated, and PW1 was again employed as a servant. Prior to this incident due to carrying illwill for terminating the services, Sonpal alongwith one Hemant Kumar entered the house of Vibha Bhatia and made an attempt to murder her. In that case both the accused were arrested, thereafter, Vibha Bhatia appointed accused Raghuraj as security guard. On 28.02.2003 Vibha Bhatia went to school at about 08:00 am without taking breakfast, she returned back home and complaint of pain in her teeth. Her grand-father K.K. Bhatia was an old man staying in the same house. In the noon she had tea with her grand-father. In presence of PW1, K.K. Bhatia asked Vibha Bhatia, if she has withdrawn money from the Bank, to which she refused and gave the bank passbook to her grand-father. Thereafter she started talking some person on phone and again went out of home. At about 05:00 pm she returned home, and when PW1 asked her for food she refused. At about 06:00 pm one Sardar Daljeet Singh came to meet her as this person used to meet Vibha Bhatia frequently. Thereafter Vibha Bhatia accompanied Sardar Daljeet Singh and went out. In the meantime one constable Dinesh from police station Quarsi came and inquired about Vibha and he had a word with Vibha and went back. Thereafter Vibha Bhatia went to medical store for taking medicine and returned back after fifteen minutes. This witness further stated that in the intervening night of 28/01-3-2003 at about 08:00 pm appellant Raghuraj Singh came on guard duty as usual. PW1 and Raghuraj Singh alongwith Vibha Bhatia close the doors of the rooms from inside and after closing both the doors of the common room Vibha put lock on the same and keep the keys with her. Since she was not feeling well, she went to sleep early. In the open courtyard Raghuraj Singh and PW1 went to sleep. At about 05:00 am when Raghuraj got up to go back to his home, he called Vibha Bhatia by knocking the door, the door was open from inside. Raghuraj Singh woke up PW1, both of them went inside the room where Vibha Bhatia was sleeping, but she was not there, then they came towards the common courtyard and found that dead body of Vibha Bhatia was lying on a Sofa smeared in blood. Both the doors of outside rooms were open. They informed this incident to the other tenants, who gave intimation to the police on telephone. It is also stated by this witness that on 26.02.2003 one Sharad Gupta who is having a gift shop came to meet Vibha Bhatia and gave a bottle of perfume, which Vibha sprinkled in the room as well as on the window. On the date of incident also Sharad Gupta also came to meet her. In cross-examination this witness stated that he do not know who committed murder of Vibha Bhatia and further stated that the information to the police was given by accused Raghuraj Singh.
8. Further in cross-examination this witness stated that his father was murdered, in which he and his wife faced the trial and he was convicted for ten year and his wife was convicted for five years. The witness stated that he is presently lodged in Agra Jail. It is further stated that in 2002 when he was employed, the entire Bhatia family was residing there, thereafter K.K. Bhatia and his wife retired and started living in Jabalpur. He was having two daughters, elder one was residing in Jabalpur and the younger Vibha was residing with her grand parents in Aligarh. Grand-mother of Vibha Bhatia has died 5-6 years ago and at that time grand-father was aged about 80-90 years. This witness further stated that he was employed on the same day when Sompal was removed from service. Sonpal was not carrying good reputation and therefore he was removed. When his services were terminated, Vibha Bhatia has grown up and was studying. Sonpal made an attempt to murder Vibha fifteen days after his services were terminated, this attempt was made in the same house of Vibha Bhatia.
9. PW1 stated that he was present at that time and Vibha had suffered injuries and had made a complaint against Sompal with the police, in which Sompal remained in custody for long time, 15-20 days after the attack on Vibha the appellant was employed as Chowkidar, who used to stay at her home. On the date of incident PW1 and Raghuraj Singh were present at the house of Vibha. Raghuraj Singh used to remain on duty from evening till morning, and thereafter he used to go back home, at that time Vibha Bhatia was studying in Class XVth, she was free to go out and come back of her own. At the time when she was taking tea with her grand-father, her grand-father asked Vibha Bhatia, if she has withdrawn money from the bank, and thereafter she had hot exchange of words with her grand-father in the regard, and PW1 intervened. This witness stated that he did not know whether Vibha has given money to her grand-father or not. However, the bank passbook and cheque book were given, at the time Raghuraj Singh was not there. The account was in the name of K.K. Bhatia and his wife from which Vibha Bhatia used to withdraw money. This witness stated that Sardar Daljeet Singh used to come to give tuition to Vibha Bhatia in morning as well as in evening.
10. This witness further stated on the on the day of incident, Vibha Bhatia was sleeping in the TV room, Raghuraj Singh was sleeping outside in a courtyard. Vibha Bhatia has locked the door from inside and PW1 assured that she has looked the room from inside. On the date of incident, the door of the room was opened at 06:00 pm. This witness stated that he has no knowledge, who has committed the murder of Vibha Bhatia. This witness stated that the distance between his cot and Raghuraj's cot was 8-10 ft. Vibha was a modern girl, however this witness denied that she was addicted to habit of drinking and meeting persons, but stated that Sardar Daljit Singh, Sharad Gupta and one person known as telephonewala also used to come house of Vibha Bhatia. This witness further stated that Pintu alias Dharmendra was not employed at the house of Vibha.
11. PW2 Dr. Chandresh Bhatia is a witness of Panchayatnama and stated that there was a deep cut wound on the neck of Vibha Bhatia and only small portion of neck was attached to the body. In cross-examination this witness stated that dead body of Vibha Bhatia was lying on a sofa in the hall. This witness stated that he is related to father of Vibha Bhatia .
12. In the last line of cross-examination, PW2 stated that till date he could not know who has committed murder of Vibha Bhatia. PW3 Doctor Shiv Kumar conducted the postmortem and reported that there is a incised wound 10.5 cm x 3 cm x 5 cm on the back side of the neck, back bone was deeply cut. This witness stated that he has prepared two vaginal smears and by sealing the same handed over to the concerned constable.
13. In cross-examination, this witness stated that the neck was still attached to the body and there is possible that injury was caused from the back side. The deceased may have dide in between 10:00 pm to 04:00 am.
14. PW4 Ashwani Kumar Sharma, a witness of recovery of alleged weapon (Gandasa) was declared hostile as he stated that accused Raghuraj Singh did not produce any Gandasa by bringing it from the bushes and never made a statement to the police in his presence that he has committed murder of Vibha Bhatia by Gandasa. This witness was permitted to be cross-examined by ADGC. He even denied the statement recorded under Section 161 Cr.P.C. by stating that he had not given any such statement.
15. PW4 stated that he is a neighbour of Vibha Bhatia . Vibha Bhatia was a girl of bad character and she used to rome throughout the day on a scooter and returned back home on 10:00 - 11:30pm. This witness stated that accused Raghuraj Singh was working in home guard and was on security duty. He used to come and sleep at the house of Vibha. He had no knowledge who has committed murder of Vibha Bhatia.
16. PW5 another witness of recovery denied having seen Raghuraj Singh coming from the house of Vibha Bhatia and carrying some bag. This witness was also declared hostile and in cross-examination by AGDC he even denied having made any statement under Section 161 Cr.P.C.. In cross-examination by defence he stated that he do not know the accused persons.
17. PW6 Jaheer Khan, another witness of recovery did not support the prosecution version and was declared hostile. In cross-examination by ADGC he denied having made statement under Section 161 Cr.P.C.. This witness even denied that appellant Raghuraj Singh has made a statement to the S.O. that he has committed murder with a Gandasa.
18. PW7 SI Ashok Vikrant, is the first investigating officer who has conducted the panchnama. This witness stated about the investigation carried by him and sending the dead body for postmortem.
19. PW8 Hakim Singh another investigating officer proved the site plan as Ext. Ka-7 and the recovery of blood stained earth and an empty steel glass as Ext. Ka-8 and 9. This witness also proved the report Ext. Ka-10 dated 04.03.2003 on an application to Chief Medical Officer, Aligarh for giving the pathological report on the slide. This witness stated that from the account of deceased in Canara Bank, Aligarh a day prior to the day of incident i.e. 28.02.2003 Rs.3,50,000/- cash were withdrawn. This witness further proved the documents like valentine day card given by Sharad Gupta to the deceased, the call details of telephone number of the deceased and some photographs.
20. In cross-examination, by co-accused Pintu alias Dharmendra this witness admitted that during investigating he had a doubt on Sardar Daljeet Singh and Sharad Gupta. On further cross-examination by appellant Raghuraj Singh, this witness stated that Raghuraj Singh was working as a guard for the last about 4-5 months. During investigation he found that Sardar Daljeet Singh and Sharad Gupta etc. used to come and visit Vibha Bhatia, though they were not her relative. During investigation he further found that in the PNT number of Vibha Bhatia many persons used to call her and during investigation he found that Vibha Bhatia was a girl of independent thoughts and having strong will. This witness further stated that during investigating he has recorded statements of PW1 Narendra and K.K. Bhatia (grandfather), but none of the witnesses raised a doubt on accused Raghuraj Singh or Pintu alias Dharmendra. During investigation from the call details he found that Vibha Bhatia used to receive telephone calls even late night.
21. PW9 Deshraj Singh, SIS is the witness who has conducted the further investigation. This witness proved that in presence of the witnesses he has recovered Gandasa, on the identification of the appellant while accused was in custody and also recorded his statement that he alongwith his brother-in-law has committed the murder of Vibha Bhatia . He further stated that he recorded the statement of Pintu alias Dharmendra in custody, who stated that he received Rs.25,000/- but no amount could be recovered at his instance.
22. PW9 has proved the sealed packet which carried the Gandasa, which was marked as Ex. P1. In cross-examination this witness stated that except Gandasa no other case property is produced before him and in the recovery memo Ext. Ka-12 there is no witness of the vicinity. This witness stated that he has only recorded confessional statement in the case diary and never recorded the statements of the accused under Section 161 or 164 Cr.P.C. This witness stated that he cannot say whether the previous investigating officer has a suspicion on Sonpal, Sardar Daljeet Singh and Sharad Gupta. This witness reiterated that both K.K. Bhatia (grandfather) and PW1 Narendra has given the statements to the previous investigating officer and on perusal of the statement he found that they have not raised any suspicion on the accused persons. This witness however denied the suggestion that appellant has been falsely implicated.
23. PW10 SI Ajab Singh, who recorded the FIR, proved the same as Ext. Ka-15 and GD as Ext. Ka-16. Thereafter the court recorded the statement of the accused person under section 313 Cr.P.C. by putting all the incriminating evidence to them. The accused persons denied that they are involved in the case, rather accused Raghuraj Singh in his defence has stated that SO Deshraj Singh under some mistake has falsely implicated him. No defence evidence was led by the appellant, thereafter, the trial court convicted the appellant by acquitting co-accused Pintu alias Dharmendra.
24. It is argued on behalf of the appellant that the entire case is based on circumstantial evidence.
25. The first argument raised by the appellant is that on the date of incident appellant, PW1 Narendra and grand-father of deceased Vibha Bhatia was also there in the house alongwith other tenants. However, only the appellant has been nominated without there being any direct evidence. It is next argued that the case of the prosecution is that even previously two persons Sonpal (who was working as a servant and his services were terminated) alongwith one Hemant on account of terminating their services, made an attempt to murder Vibha Bhatia , in which she suffered injuries and case was registered with the police, wherein both Sonpal and Hemant was arrested and remained in judicial custody.
26. The counsel submit that it has come from the statement of both the two investigating officers PW8 and 10 that they have not investigated the case on that line whether the involvement of Sonpal was found in the in the case or not, as it is clearly admitted that in the cross-examination of both the witnesses.
27. It is next argued that as per PW1, on the date of incident he alongwith appellant Raghuraj Singh, security guard and deceased Vibha Bhatia had first locked the outside gate by putting lock and then the courtyard and thereafter, the deceased went inside her room and locked the same from inside. However, in the morning room of the deceased was found open and even main door was open and she was not there and her dead body was found on the main hall on Sofa.
28. The counsel submits that none of the prosecution witness could state as under what circumstances, she opened the lock of her room from inside and came to the main hall where she was murdered.
29. It is further submitted that the police has not investigated even from PW1 Narendra who was also present in the house and was sleeping alongwith appellant at the same place. PW1 has categorically stated that appellant has not committed murder and some unknown persons have committed murder. Counsel for the appellant has argued that it has come in the statement all the witnesses that deceased used to meet number of persons, and even used to receive phone calls late at night. Therefore, the police which did not conduct the investigation regarding the role of Sardar Daljeet Singh, Subham Gupta and Sharad Gupta and a person coming from the telephone.
30. Counsel further argued that two important witnesses i.e. K.K. Bhatia grand-father of the deceased, PW1 Narendra in their statement did not raise any suspicion against the appellant or co-accused. The second Investigating Officer- PW10 Azab Singh has reiterated this version that during his investigation this fact was found that father and grand-father has not raised any suspicion on the accused.
31. Counsel for the appellant further submitted that the first Investigating Officer has specifically stated that he had some suspicion on Sardar Daljeet Singh and Sharad Gupta, but after the change of investigation nothing has come on record about the investigation conducted regarding these two persons.
32. Counsel for the appellant has next argued that appellant is convicted of charge under Section 376 IPC only on the basis of pathological report, which is not a report, and rather the pathologist by putting his signature on Ext. Ka-10, an application filed by the Investigating Officer to the Chief Medical Officer for providing the report of the pathology, has stated "spermatozoa seen in the smear". This report is dated 08.03.2003 and was exhibited for the first time as Ext. Ka-10 on 10.07.2013. The argument raised by learned counsel for the appellant is that this report was never supplied to the appellant alongwith the report under Section 173(2) Cr.P.C. and therefore, he had no opportunity to rebut the same. The counsel further argued that even this pathology report was never put to the appellant in his statement under section 313 Cr.P.C. suggesting that the appellant has committed the offence of rape to the deceased, and therefore, the conviction of the appellant based on the aforesaid report is liable to be set-aside.
33. It is also argued that no scientific investigation was conducted to find out whether spermatoza seen in the smear was of the appellant, as it has come in statement of the Investigating Officer that deceased was a girl of free and independent nature and used to meet number of persons every day. Counsel has also referred to the statement of PW4. Ashwani Kumar Sharma, a neighbour who has even gone to the extent of saying that deceased was not having good character.
34. Counsel for the appellant has next argued that appellant has been wrongly convicted under Section 394 IPC, though no recovery of any amount was effected from the appellant. The counsel submitted that investigation is defective, as nothing has come on record in the statement of the father and grand-father of the deceased as to why she had withdrawn a huge amount in cash on 28.02.2003 and where that amount has gone, as not even a single penny was recovered either from the appellant or from the co-accused Pintu alias Dharmendra.
35. The counsel submitted that appellant have been convicted only on a presumption drawn under Section 106 of the Evidence Act, for which the prosecution has failed to proved the mandatory requirements.
36. Learned counsel submits that it is a case of circumstantial evidence and chain of circumstance is not proved and even motive is not proved. Counsel has relied upon the decision in Krishan Kumar and Another vs. State of Haryana, 2023 4 Crimes (SC) 87, wherein the Supreme Court has held that if the Trial Court has appreciated the evidence in an utterly perverse manner, i.e. against the weight of the evidence, no conviction can be entered and the accused is entitled to be acquitted as each of the links in chain of circumstances are either individually or collectively not sufficient to connect the appellants with crime.
37. Learned counsel has relied on the decision of the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, paragraph nos. 152 & 153 are reproduced as under :
(152.) A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, 1973 2 SCC 793 where the following observations were made:
" Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be; and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(153.) These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
38. Counsel has also relied upon Jabir & Ors. vs. State of Uttarakhand, 2023 0 AIR (SC) (Cri) 270, relying upon Sharad Birdhichand Case (Supra), the Supreme Court has observed as under :
"21. A basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; further, the facts so proved should unerringly point towards the guilt of the accused. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
39. It is lastly argued that appellant has no enmity or motive to commit the murder of the deceased, as even the recovery of Gandasa from the appellant is not proved, as both the recovery witnesses have turned hostile. It is further submitted that though it has come in the report that it contains human blood stains, but no scientific investigation was conducted to find out that blood stains belonged to the deceased person.
40. It is also argued that the recovery was effected when appellant was in custody, and as per the PW9 the investigating officer, no statement of accused persons were recorded under sections 161 of Cr.P.C. as only in case diary confession was recorded.
41. In reply, the learned State Counsel has argued that appellant was appointed as Chowkidar of the deceased and at the time of incident he was present in the court, and therefore, the evidence led by the prosecution proved that he has committed the murder of deceased Vibha Bhatia. It is next argued that as per the report of the pathology, in the vaginal smear spermatozoa was detected which also suggests that the victim was subjected to sexual assault prior to her death. The counsel submits that appellant has failed to lead any defence evidence to prove his innocence.
42. It is next argued that the recovery of weapon of offence i.e. the Gandasa was effected at the pointing out of the appellant which carried human blood stains, and therefore, the trial court has rightly convicted the appellant.
43. After hearing the counsel for the parties, we find merit in the present appeal for the reasons mentioned herein below:-
(a) It has come in the prosecution evidence specially PW1 Narendra, the another servant employed by the deceased Vibha Bhatia who was also present in the house when the incident took place, that he did not know who has committed murder. This witness has stated categorically that on the intervening night before going to sleep, he, appellant Raghuraj Singh (the security guard) and deceased Vibha Bhatia had firstly locked the main door of the house by putting a lock, keys were with the deceased. This witness has also stated the Vibha Bhatia has locked her room from inside and thereafter both PW1 and Raghuraj Singh went to sleep in the courtyard on two separate cots having a distance of about 8 ft. It is also stated that in the morning Raghuraj Singh first woke up and found that the main door was open and even door of Vibha Bhatia's room was open and she was not there. When he went to the hall room, he found that dead body of Vibha Bhatia was lying on a sofa smeared in blood. Thus from the statement of PW1, it is apparent that the appellant neither had access to the keys of the main door which were locked by deceased Vibha Bhatia and keys were kept by her nor of the the room in which she had gone to sleep and locked himself from inside. Though in the morning both the doors were found opened.
(b) The consistent stand of both the investigating officer i.e. PW8 and PW9 is that during investigation statement of PW1 Narendra and grand-father of the deceased who was also sleeping in the same house were recorded, but none of the witnesses raised any doubt regarding involvement of appellant Raghuraj Singh. Rather PW9 the second investigating officer had reiterated that the previous investigating officer recorded the statement of K.K. Bhatia, the grand-father and PW1 Narendra who have not raised any suspicion on the accused persons. PW8 who conducted the subsequent investigation stated that one Sardar Daljeet Singh, one Sharad Gupta and a person know as Telephonewala frequently used to visit house of Vibha Bhatia, and Sharad Gupta used to give her cards like valentine day card. A day prior to the incident, Daljeet Singh visited her house twice and Vibha Bhatia had gone out, accompanying him and came back after few hours. PW8 has even stated that that initially he had a doubt about the involvement of the aforesaid three persons, however no investigation was conducted in this regard either by first investigating officer or the subsequent investigating officer PW9 as admitted by them. Admittedly, grand-father of deceased K.K. Bhatia was also residing in the same house and during investigation he recorded his statement, but did not raise any doubt about involvement of appellant or co-accused Pintu alias Dharmendra, who is brother-in-law of the appellant. Even statement of none of tenants residing in same house was recorded.
(c) It has come in the statement of PW1, Narendra, PW4 Ashwani Kumar Sharma a neighbour and PW8 Hakim Singh, the investigating officer that deceased was a girl of independent thoughts, having a strong will power and she frequently used to go out of her house and come back at her own will. PW4 has gone to the extent by saying that she was not maintaining good character.
(d) It has also come in the statement of PW1 that a day prior to the incident, grand-father of deceased Vibha Bhatia inquired from her about withdrawal of any amount from Bank and they had heated discussions for the same, thereafter Vibha Bhatia denied any withdrawal of amount and handed over the cheque book and passbook to her grand-father. However, in investigation it is found that an amount of Rs.3,50,000/- in cash was withdrawn a day prior to the incident and in the absence of any recovery either from appellant or co-accused Pintu alias Dharmendra, the police investigation is silent as to where that amount had gone, specially when she had met the above named three persons Sardar Daljeet Singh, Sharad Gupta and one person known as telephonewala and had even gone out out of the house for few hours after she had tea with her grand-father when the heated discussions took place regarding the money. This makes the entire prosecution case suspicious as no proper investigation was conducted that if huge amount in cash was withdrawn and the same was never recovered from either of the accused who were arrested immediately after the incident, as to where that amount has gone. Even no investigation was conducted from the family members of the deceased as to why such a huge amount in cash was withdrawn by Vibha Bhatia and to whom she intended to give the amount.
(e) It is also admitted case of the prosecution that few months before the incident two persons Sonpal and Hemant entered the same house of Vibha Bhatia and made an murderous assault on her by causing serious injuries. An FIR was registered and both of them were arrested and remained in custody for a long time. The motive for the said incident was that Vibha Bhatia has terminated the services of Sonpal by stating that he is a man of bad character and only thereafter, appellant who was serving in Home Guard was appointed as a Chowkidar to stay at her house during night. Both the investigating officer in cross-examination stated that they had doubt about the role of aforesaid Sonpal and Hemant, but they never investigated the case by involving them in the investigation.
(f) It has come in the statement of PW4, that he has no knowledge who has committed the murder of Vibha Bhatia. Yet another important aspect of the case is that the grand-father in his statement before the police had raised no suspicion regarding the role of the appellant and he died before his statement would be recorded before the court. However, the police did not investigated about the role of the appellant from the parents of the deceased Vibha Bhatia. It has come in the cross-examination of PW1, that Vibha Bhatia was a modern girl having independent thoughts and used to go out of the house of her own free will and would come as per her own wish.
(g) It has also come on record that police did not record any statement of the bank official of the bank where deceased was having account to know the frequency of deposit and withdrawal. In their statements before the police, neither PW1 or grand-father K.K.Bhatia stated that the said amount was withdrawn by Vibha Bhatia or they had knowledge about withdrawal of the said amount. At the cost of repetition, it is noticed that even on the date of withdrawal, deceased had gone out with one Sardar Daljeet Singh for few hours and some other persons have also come to meet her including one police officer from the local police station has also come to meet Vibha Bhatia and thereafter she had again gone out. The investigating officer never tried to find out who are the police official and in what context he has come to meet her.
(h) It has also come in the statement of PW1 and the Investigating Officer that they were tenants in the house of a deceased, however, none of the tenants was interrogated or investigated for finding the role of the appellant. It is apparent there there is no eye witness to the incident, and the appellant has been convicted on the basis of circumstantial evidence, as the bests witness PW1, Narendra who was present in the house being a servant clearly stated that appellant has not committed murder of Vibha Bhatia and some unknown person has committed the same, and therefore, on re-appreciation and on re-scrutinization of the entire evidence, the complete link of chain of circumstantial evidence in order to proved guilt of the appellant is missing, as nothing has come out on record, Firstly as to who opened the main door when the keys were with deceased Vibha Bhatia, and how her room which was locked from inside as per the statement of PW1 was opened, and in what circumstances she come out of her room and came to the main hall where she was murdered by slitting of throat on a sofa. The police investigation in this regard is absolutely missing. Secondly PW1 has stated that he and the accused were sleeping on two different cots side by side and none of them heard any such noise. Even the grand-father was sleeping in the same house and there were tenants also, but no one heard any such noise when the deceased was attacked and murdered.
(i) Yet another missing link is that the vaginal smear slide which was sent to pathology department for examination, as per Ex. Ka-10; an opinion was given that "spermatoza seen in the smear" and appellant is convicted of charge under Section 376 IPC only on the basis of pathological report, which is not a report, as the pathologist by putting his signature on Ext. Ka-10, an application filed by the Investigating Officer to the Chief Medical Officer for providing the report of the pathology, has stated "spermatozoa seen in the smear". This report is dated 08.03.2003 and was exhibited for the first time as Ext. Ka-10 on 10.07.2013. The argument raised by learned counsel for the appellant is that this report was never supplied to the appellant alongwith the report under Section 173(2) Cr.P.C. and therefore, he had no opportunity to rebut the same. The counsel further argued that even this pathology report was never put to the appellant in his statement under section 313 Cr.P.C. suggesting that the appellant has committed the offence of rape to the deceased, and therefore, the conviction of the appellant based on the aforesaid report is liable to be set-aside. Moreover, no scientific investigation like DNA test was conducted to find out that whether the sperms found in the smear were of the appellant. Similarly it has been reported on the weapon of offence i.e. Gandasa that human blood found, but it was not matched with the deceased by carrying a scientific investigation, which is a serious lapse on the part of the investigating officer. Therefore, in the absence of a complete chain of circumstantial evidence, the appellant cannot be held guilty of offence.
(j) Even otherwise, the report of pathology Ex.Ka-10 was never supplied to the appellant alongwith the report under Section 173(2) Cr.P.C. and this report dated 08.03.2003, for the first time was exhibited on 10.07.2013 as Ex. Ka-10. Therefore, this report which was not supplied to the appellant and for the first time was put to him in the statement under Section 313 Cr.P.C. is not sufficient to hold him guilty of offence, as no proper opportunity of hearing was afforded to the appellant to cross-examine the two investigating officers qua this report.
44. The trial court has also wrongly convicted the appellant under Section 394 IPC, as admittedly no recovery was effected either from the appellant or the co-accused Pintu alias Dharmendra, who is brother-in-law of the appellant though they were immediately arrested after the incident. As observed above, the investigating officer has failed to conduct proper investigation regarding withdrawal of money from the Bank, purpose of withdrawal and no suspicion having been raised by either the grand-father who was present in the house of the parents of the deceased in this regard, the charge is not proved. From co-accused Pintu @ Dharmendra stands acquitted by trial court.
45. The trial court has convicted the appellant under Section 376 IPC which is also not sustainable as held above that no scientific investigation like DNA test was done to find out whether the presence of spermatozoa on the smear belonged to the appellant. The statement of PW1 that some unknow person having accessed to the house came to meet the deceased at midnight, and after a consensual sexual relation, committed her murder cannot be ruled out.
46. The trial court has drawn the presumption against the appellant under Section 106 of the Evidence Act. In the facts and circumstances of the present case, this presumption is clearly rebutted.
47. In view of the judgment in Sharad Birdhichand Sarda's Case (Supra) and subsequent judgment in Jabir's Case (Supra), the prosecution has failed to prove the five golden principles of proving a case based on circumstantial evidence laid down in Sharad Birdhichand Sarda's Case (Supra).
48. In view of the judgment in Shivaji Chintappa Patil's Case (Supra), the Trial Court has wrongly drawn adverse presumption under Section 106 of Act, 1872 against the appellant- Raghuraj though it has come in the evidence that deceased was meeting number of person, who had access to her house even late night.
49. In light of the judgment in Dinesh Kumar's Case (Supra) and Krishan Kumar's Case (Supra) we conclude that there is no legal evidence led by the prosecution to build its case on circumstantial evidence as the chain of circumstances collected by the prosecution is not complete to point out that a finding can be drawn that the accused has committed the crime. In view of this judgment, the prosecution failed to prove the motive to make it a complete chain so as to record any reasonable ground for conviction.
50. It is held in Shivaji Chintappa Patil's Case (Supra) that it is settled principle of law that if two views are possible, the benefit shall always go to the accused.
51. In view of the judgment in Jabir's Case (Supra), the prosecution has failed to prove that the circumstantial evidence is complete to sustain conviction or to hold the accused guilty.
52. In view of the above, this appeal is allowed. The impugned judgment of conviction and order of sentence are set-aside. The appellant Raghuraj Singh who has undergone the custody of 11 years and 2 months (actual) is acquitted of the charges and is set-free forthwith. Since the accused is in custody, he be released forthwith, if he is not required in any other case.
53. Records and proceedings be sent back to the trial court forthwith.
Order Date :- 09.04.2024 Ashish/-