Rajasthan High Court - Jodhpur
State vs Surendra Kumar @ Mandia on 20 May, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Murder Reference No. 3/2021
State, Through PP
----Petitioner
Versus
Surendra Kumar @ Mandia S/o Sh. Banshilal, R/o Ward No. 10,
Dulmana, Tehsil Pilibanga, Dist. Hanumangarh.
----Respondent
Connected With
D.B. Criminal Appeal (DB) No. 2/2022
Surendra Kumar @ Mandia S/o Bansilal, Aged About 19 Years,
Ward No. 10 Dulmana Tehsil Pilibanga Dist. Hanumangarh,
Rajasthan. (Presently Lodged At Dist. Jail, Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
Mr. Nishant Motsara for accused-appellant Surendra Kumar
Mr. Anil Joshi, GA-cum-AAG (In Charge)
Mr. R.R. Chhaparwal, PP
Mr. Manjeet Godara for complainant.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
JUDGMENT
Date of Pronouncement :- 20/05/2022
Judgment Reserved on :- 05/03/2022
BY THE COURT : PER HON'BLE MEHTA, J.
REPORTABLE
1. The accused appellant Surendra Kumar @ Mandia has been convicted for the offences punishable under Sections 450, 376 and 302 IPC and has been sentenced as below vide judgment dated (Downloaded on 20/05/2022 at 08:43:47 PM) (2 of 31) [MREF-3/2021] 29.11.2021 passed by learned Sessions Judge, Hanumangarh in Sessions Case No.63/2021:-
Offence Sentence and fine awarded Section 302 IPC Death penalty with a fine of Rs.10,000/-. In case,
the death penalty is not affirmed, the appellant shall undergo additional simple imprisonment of 1 year.
Section 376 IPC Life imprisonment with a fine of Rs.10,000/- and in default of payment of fine, 1 year's additional simple imprisonment Section 450 IPC 3 years' simple imprisonment and a fine of Rs.10,000/- and in default of payment of fine, 6 months' additional simple imprisonment.
2. Facts in succinct are noted hereinbelow:-
3. Banwarilal (P.W.1) lodged a written report (Ex.P/1) to the SHO, Police Station Pilibanga at the place of incident i.e., Village Dulmana, Tehsil Pilibanga on 16.09.2021 at 5.00 AM alleging inter alia that his sister-in-law Smt. Guddi Devi, aged 60 years, widow of Late Shri Rajaram, used to live alone in Dulmana. Shri Rajaram had expired 3 years ago. The couple was issueless. On 15.09.2021, in the night at about 10.30 PM, Smt. Guddi Devi came to the house of the first informant and complained that Surendra Kumar @ Mandia son of Banshilal Meghwal had come to her house with a malevolent intent and tried to outrage her modesty. She rebuked the accused on which, he snatched her mobile phone and ran away. Guddi Devi requested Shri Banwarilal to retrieve her mobile from the accused. The complainant replied that looking to the late hours, he would take remedial measures in the morning and that she should sleep in his house. Guddi replied that she had to keep an eye on her buffaloes and other animals (Downloaded on 20/05/2022 at 08:43:47 PM) (3 of 31) [MREF-3/2021] and saying so, she went back to her house. In the night at about 1 O' Clock, Rajaram S/o Roopram Meghwal informed him that Surendra @ Mandia Meghwal had approached him in an inebriated condition and blurted out that he had killed Guddi Devi by strangulating her. On this, the informant, accompanied by Rajaram, Shyopatram and Sahdev went to the house of Smt. Guddi Devi and saw her lifeless body lying on a cot. It was alleged that Surendra Kumar had broken into the house of Guddi Devi in the night time with the intention to rape her and in this process, he strangulated and killed the lady. The dead body of Guddi Devi was lying at her house in Dulmana.
4. The report was forwarded to the Police Station Pilibanga where, FIR No.376/2021 was registered for the offences punishable under Sections 450, 376 and 302 IPC. The investigation was assigned to SHO Shri Inder Kumar (PW.12), who undertook spot inspection. Panchayatnama Lash was prepared. The dead body of Guddi Devi was subjected to autopsy at the Government Hospital, Pilibanga from where, postmortem report (Ex.P/9) was issued with the opinion that cause of death of Smt. Guddi Devi was asphyxia. However, final opinion was reserved for receiving the FSL report. A clump of hair clutched in the left hand of Guddi Devi was seized vide Seizure Memo Ex.P/6. Two foot moulds of the suspect and other material pieces of evidence were lifted from the spot. Photography of the crime scene was undertaken. The accused appellant was arrested. Acting in furtherance of the information provided by him to the Investigating Officer under Section 27 of the Evidence Act, a mobile phone alleged to be that of the victim was recovered. The (Downloaded on 20/05/2022 at 08:43:47 PM) (4 of 31) [MREF-3/2021] specimen foot-moulds of the accused were prepared for the purpose of comparison through the Forensic Science Laboratory. Blood and hair samples were collected from the accused for the purpose of DNA comparison.
5. Upon conclusion of investigation, a charge-sheet came to be filed against the appellant herein for the offences mentioned above. The case was committed to the court of Sessions Judge, Hanumangarh where charges were framed against the appellant in these terms. He pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 68 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, the accused denied the same and claimed that as a matter of fact, Rajkumar was having illicit relations with the deceased. He opposed the same on which, Rajkumar got him falsely implicated in the case. Four documents were exhibited but no oral evidence was led in defence.
6. Upon hearing the arguments advanced by the learned Public Prosecutor and the learned counsel for the complainant and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. The murder reference No.03/2021 has been instituted for confirmation of the death sentence under Section 366 Cr.P.C. whereas, the appeal No.02/2022 has been filed under Section 374(2) Cr.P.C. by the accused for challenging the impugned judgment of conviction.
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7. Shri Nishant Motsara, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. He contended that the very fact of the registration of the FIR at 5.00 AM is falsified from the Roznamcha Entry Ex.P/18, as per which, the police party departed from the police station for the place of incident at 5:41 AM. Thus, there was no possibility that the FIR could have been lodged at 5.00 AM as claimed by the complainant and the SHO. He contended that the FIR is an ante-timed post investigation document. There is no allegation of rape in the FIR (Ex.P/2) as well as the investigational statement of the star prosecution witness Banwarilal (PW.1). Rajaram who was named in the FIR as the witness of extra-judicial confession, was not examined on oath and in his place, a different man Rajkumar (PW.3), was examined to buttress this cooked up theory. The trial court disbelieved the prosecution case regarding Rajkumar being the person before whom, the extra-judicial confession was allegedly made by the appellant. Criticizing the circumstance of matching foot moulds, Shri Motsara urged that the first informant and his companions had traipsed and trampled the crime scene before the police arrived there and thus, there was no possibility of the foot-moulds of the suspect having been preserved. Furthermore, the IO could not have had any means to isolate the two particular foot-moulds from the foot marks of the deceased and the witnesses who had disturbed the crime scene before the foot moulds were lifted. He further submitted that the specimen foot moulds of the accused were collected by the SHO Police Station Pilibanga Shri Inder Kumar (PW.12), vide memorandum Ex.P/23 by associating only two police personnel as panch witnesses which is in total (Downloaded on 20/05/2022 at 08:43:47 PM) (6 of 31) [MREF-3/2021] contravention of the procedure provided under Rule 6.26 of the Rajasthan Police Rules. He further contended that the blood and the hair sample of the accused were collected without obtaining his consent because the form (Ex.P/16) on which, the consent is recorded, is in English language with which the accused is not acquainted. Only two police officials were associated in this procedure as well and hence, the consent of the accused is tainted by duress. He further urged that recovery of mobile phone shown to have been effected from the appellant, vide memorandum Ex.P/21 claiming that it was of the deceased, is also false and fabricated. The prosecution has come out with a case that the accused trespassed into the house of the deceased for seeking sexual gratification and in that background, there was no rhyme and reason as to why he would pick up the mobile phone of the deceased. He pointed out that the receipt Ex.P/42 on which, the prosecution placed reliance in order to prove that this very mobile instrument was purchased by the deceased, was not proved as per law because, owner of the Guru Mobile Cafe from where, the receipt was issued was not examined in evidence. Furthermore, the receipt is apparently fabricated because the IMEI number of the mobile phone is not mentioned therein. Learned counsel Shri Motsara strenuously contended that the impugned judgment is perverse on the face of it because the Presiding Officer referred to the examination-in-chief of all the prosecution witnesses and mechanically discarded the cross-examination conducted by the defence with a bald observation that nothing significant was elicited therein. However, as per Shri Motsara, extensive cross- examination was conducted from all the prosecution witnesses and the truthfulness of the version set out in examination-in-chief was (Downloaded on 20/05/2022 at 08:43:47 PM) (7 of 31) [MREF-3/2021] totally shaken and dislodged. He urged that it was imperative for the trial court to have dealt with the cross-examination conducted from the witnesses in detail. The cursory approach of rejecting the cross-examination by observing that nothing special was elicited therein, is unwarranted and reflects a perfunctory approach.
8. Shri Motsara referred to the statement of the Medical Jurist Dr. Hariom Bansal (PW.4) and urged that the witness admitted that the death of Smt. Guddi Devi could have occurred on 15.09.2021 after 11.30 AM. He thus urged that the time of death as stated in the FIR and the evidence of the material witnesses is contradicted by the opinion of the Medical Jurist. He further urged that no external marks of violence were found anywhere on the victim's dead body including the neck and the private parts and hence, the finding recorded by the trial court that the appellant, first subjected the victim to rape and then, strangulated her are unsustainable as being contradicted by the medical evidence. On these grounds, Shri Motsara implored the court to accept the appeal, turn down the reference, set aside the impugned judgment and acquit the accused of the charges.
9. Per contra, learned Public Prosecutor and the learned counsel Shri Manjeet Godara, representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They urged that the prosecution witnesses had no animosity whatsoever with the accused appellant. The FIR (Ex.P/2) was lodged by Shri Banwarilal (P.W.1), with the SHO, Police Station Pilibanga at the place of incident on 16.09.2021 at 5.00 AM i.e., within few hours of the incident wherein, it was (Downloaded on 20/05/2022 at 08:43:47 PM) (8 of 31) [MREF-3/2021] clearly alleged that the deceased herself approached the first informant at 10.30 in the night and complained that the accused had entered her house and tried to molest her. When she resisted, the accused snatched her mobile phone and ran away. Shri Banwarilal reaffirmed this allegation when he was examined on oath. No cross-examination whatsoever was undertaken from Shri Banwarilal on this important aspect of his testimony.
10. They further submitted that the witnesses Banwarilal (PW.1) and Sahdev (P.W.2), have clearly stated that the accused made an extra-judicial confession before Rajaram/Rajkumar. The father's name of Rajaram has been mentioned in the FIR as Rooparam. Rajkumar S/o Shri Roopa Ram appeared in the witness box as PW.3 and stated that the accused who was his distantly related nephew came to his house and made an extra-judicial confession regarding having strangulated and killed Guddi Devi. They contended that the flimsy defence theory regarding the victim having been murdered by Rajkumar, is totally an afterthought and has no substance whatsoever. It was submitted that the finding recorded by the learned trial court in the impugned judgment that Rajkumar was not the same person as Rajaram, named in the FIR and that the prosecution failed to examine Rajaram in this case is perverse and unsustainable.
11. Learned Public Prosecutor and the complainant's counsel further submitted that the accused has rightly been found guilty by the trial court on the basis of strong and unimpeachable circumstantial evidence in the form of (a) oral disclosure made by the victim to Shri Banwarilal regarding malevolent behaviour of (Downloaded on 20/05/2022 at 08:43:47 PM) (9 of 31) [MREF-3/2021] the accused just before the murder, (b) extrajudicial confession made by the accused, (c) finding of his foot-marks at the place of incident and (d) recovery of his hair from the hands of the victim which fact has been established by the DNA analysis report Ex.P/11.
12. They thus urged that the impugned judgment convicting and sentencing the accused appellant as above, is unimpeachable on facts as well as law. They implored the Court to confirm the sentence of death awarded to the appellant by the learned trial court while affirming the impugned judgment and to dismiss the appeal.
13. We have given our thoughtful consideration to the submissions advanced at bar and have carefully re-appreciated the evidence and the record. We now proceed to discuss the evidence led by prosecution to bring home the charges.
14. The first informant Banwarilal (PW.1) lodged the written report (Ex.P/1) alleging inter alia that on 15.09.2021, his sister- in-law Guddi Devi (deceased), came to his house at 10.30 PM complaining that the appellant had entered her home with a malevolent intention and tried to outrage her modesty. When she resisted, the accused snatched her mobile phone and went away. This allegation was reiterated by Shri Banwarilal in his sworn testimony. On a perusal of the cross-examination conducted from the witness, it comes to light that the only suggestion which was given by the defence counsel to impeach this aspect of Banwarilal's testimony was as to why he did not call the police (Downloaded on 20/05/2022 at 08:43:47 PM) (10 of 31) [MREF-3/2021] after Guddi Devi came to his house and complained regarding the incident. The witness explained that this was a routine affair and the accused would often quarrel with Guddi Devi. It can easily be discerned from this revelation made by the witness that the accused must have been in a habit of taking liberties with the issueless old woman, who was living alone in her house after the death of her husband. The witness Banwarilal did not take the incident seriously and assured Guddi Devi that he would take steps for retrieval of her mobile phone in the morning. Hence, the fact regarding the appellant having visited the house of Guddi Devi in the night time and trying to take liberties with her is duly established as this fact was stated to Shri Banwarilal by Guddi Devi herself and can be considered admissible under Section 32 of the Evidence Act. The witness advised Guddi Devi to stay in his house but she refused the offer saying that she could not abandon her buffaloes and other cattle. It seems that Guddi Devi was also not much bothered by the unsolicited visit of the accused to her house and only desired retrieval of her mobile and that is why she approached Banwarilal and made a complaint to him. A significant fact which emerges from the above set of facts is that the accused left the house of Guddi Devi sometime before 10:30 pm. In the second part of the FIR, Banwarilal narrated that Rajaram son of Ruparam Meghwal informed him in the night at about 1 o'clock that Surendra had approached him and admitted to have killed Guddi Devi by strangling her. Though, it has been mentioned in the FIR that it was Rajaram S/o Shri Ruparam who told the informant regarding the extra-judicial confession made by the accused as above. However, Banwarilal, when examined on oath, modulated the story and alleged that Rajaram @ Raju came to his (Downloaded on 20/05/2022 at 08:43:47 PM) (11 of 31) [MREF-3/2021] house at about 1:00-1:30 am. He was accompanied by Sahdev and Shyopat Ram and told the informant that the accused had confessed to the murder of Smt. Guddi. The witness admitted in cross-examination that Rajkumar and Rajaram are not the same persons. Thus, there is a grave discrepancy in the FIR and sworn testimony of the witness on this important aspect of the prosecution case. To summarize, there are grave discrepancies in the FIR and sworn testimony of Banwarilal regarding the following five important aspects of the case:-
(a) Regarding the precise manner and time at which information was given by Rajaram to the witness.
(b) Regarding Rajaram being accompanied by Sahdev and Shyopat Ram.
(c) The witness Rajaram coming to the house of the complainant and telling him this fact and
(d) The alias of Rajaram being Raju.
(e) That Rajaram told that accused had confessed to committing rape with the victim.
These contradictions and improvements in the sworn testimony of Banwarilal viz.-a-viz., the story as set out in the FIR create a significant doubt on his evidence.
15. Banwarilal, then stated that they proceed to the spot and informed the police which arrived at the crime scene at about 3.30-4:00 AM. However, as per the Roznamcha Entry (Ex.P/18), the police officers departed from the police station for the place of (Downloaded on 20/05/2022 at 08:43:47 PM) (12 of 31) [MREF-3/2021] incident at 05.41 AM. Thus, the testimony of Banwarilal is also falsified on this important aspect of the case.
16. Sahdev (PW.2), stated in his evidence that Guddi Devi was issueless and used to live alone in her house after the death of her husband. On 15.09.2021, Rajkumar son of Ruparam called him and told that Surendra @ Mandia had approached him in an intoxicated state and confessed that he had strangled Guddi Devi. The witness picked up his motorcycle and went near the house of Rajkumar where he met Shyopat Ram and Raju @ Rajkumar. Thereafter, they picked up Banwarilal from his house and went to the house of Guddi Devi. Police was informed. Sahdev did not claim to be related to Smt. Guddi and thus, there was no reason as to why Rajkumar would confide in him regarding the incident. Be that as it may. In cross-examination, the witness admitted that they did not go to the house of Guddi Devi before arrival of the police team and that he, Shyopat Ram, Rajkumar, Banwari and 5- 6 police personnels reached the place of incident together. In this regard, it may be stated here that the SHO Inder Kumar (PW.12) stated that he and the police team reached the place of incident at around 5 O' clock. The evidence of Sahdev is also contradicted from the facts elicited in the cross-examination of Banwarilal (PW.1) who admitted that he, Shyopat, Raju and Sahdev went to the house of Guddi Devi in the night time and no one else was accompanying them. They called the police from the crime scene and the police arrived at about 3:30 to 4 O' clock i.e,. after 10-15 minutes after Sahdev had made the call to the police station. Manifestly thus, there is a grave contradiction inter se in the statements of Banwarilal (PW.1) and Sahdev (PW.2) vis-a-vis the (Downloaded on 20/05/2022 at 08:43:47 PM) (13 of 31) [MREF-3/2021] statement of the SHO Shri Inder Kumar regarding the sequence in which the witnesses and the police officers reached the crime scene.
17. The prosecution examined Rajkumar as P.W.3 in a purported attempt to establish that he was none other than Rajaram, featured in the FIR as the witness of extrajudicial confession. The witness stated that he worked as a labourer in Pilibanga Mandi. On 15.09.2021 at about 7:00 PM, he returned home, consumed food and went to sleep. At about 12.42 AM, Surendra @ Mandia called him but he did not answer the phone. The witness then called Surendra who blurted out that he had killed a person and was coming over to his house. Surendra came to his house in an intoxicated state and told him that he had killed Rajaram's wife Guddi Devi by throttling her. The witness advised him to return home. Thereafter, he called Shyopat Ram and Sahdev. All three approached Banwarilal and informed him of this incident. Then, Sahdev called the police. After the police had arrived, they went to the crime scene and saw Guddi Devi's dead body lying on a cot. In cross-examination, the witness stated that when he called the accused, he admitted to have killed a person. After coming to his house, the accused confessed that he had killed Guddi. The witness stated that the accused was his nephew in relation and that is why he came to the house and made the confession. The witness admitted not having informed the police after the accused made this confession and rather advised him to go back. The witness denied the defence suggestion that the accused neither approached him nor he made the alleged confession. The witness admitted that they reached the house of Guddi Devi with the (Downloaded on 20/05/2022 at 08:43:47 PM) (14 of 31) [MREF-3/2021] police between 02.30 to 03.00 AM and inspected the place of incident. He informed the police immediately that Surendra had come to his house and had made the confession. Thus, there is a discrepancy/contradiction in the evidence of Rajkumar as well regarding the sequence of going to the place of incident.
18. The case set up by the prosecution that Rajaram told Banwarilal regarding the extrajudicial confession made by the accused was dealt with by the trial court at para No.16 of the impugned judgment which is reproduced for the sake of ready- reference:-
"16- bl izdkj ih-M- 1 cuokjh yky dh lk{; ls ;g izdV gksrk gS fd mls jktkjke }kjk ?kVuk ds laca/k esa tkudkjh nh xbZ gSA ;|fi gLrxr izdj.k esa jktkjke dks vfHk;kstu }kjk ijhf{kr ugha djok;k x;k gS] ijUrq blls vfHk;kstu dgkuh ij dksbZ foijhr izHkko ugha iM+rk gS] D;ksafd ;fn ifjoknh ih-M- 1 cuokjh yky dh lk{; esa lPpkbZ ugha gksrh rks ,slk dksbZ dkj.k ugha Fkk fd vfHk;qDr cpko lk{kh ds :i esa jktkjke dks is"k ugha djrk] ijUrq vfHk;qDr us cpko lk{; esa Hkh jktkjke dks izLrqr dj ijhf{kr ugha djok;k gSA ,slh fLFkfr esa ih-M- 1 cuokjh yky ds mijksDr dFku v[kf.Mr jgus ds dkj.k mu ij vfo"okl fd;s tkus dk dksbZ dkj.k ugha jgrk gSA ,slh fLFkfr esa ;g izekf.kr gksrk gS fd ?kVuk ds laca/k esa ifjoknh ih-M- 1 cuokjh yky dks jktkjke }kjk lwpuk nh xbZ FkhA"
19. The witness Shyopatram, who allegedly accompanied Banwarlilal, Rajkumar and Sahdev was not examined by the prosecution.
20. The Investigating Officer Shri Inder Kumar (P.W.12), admitted in his cross-examination that when he reached the place of incident, the door of the house was open. None of the (Downloaded on 20/05/2022 at 08:43:47 PM) (15 of 31) [MREF-3/2021] witnesses were present there when he arrived at the crime scene. No struggle marks were visible in the room where Smt. Guddi Devi had been murdered. The SHO was put questions regarding the Roznamcha Entry pertaining to departure of police team for proceeding to the place of incident to which, the witness feigned ignorance. He admitted that he could not say as to when he left the police station and also could not precisely state the time of arrival at the crime scene. He admitted having made an entry in the Roznamcha before departing for the crime scene. Name of the informant was not mentioned in the Roznamcha entry (Ex.P/18). The distance between the police station and the place of incident is merely four kilometers.
21. This Roznamcha Entry was proved by Radheyshyam, (P.W.7), who was posted as ASI at the Police Station, Pilibanga. The witness stated that the SHO took him and other members of the police team and left for the crime scene in the police jeep at 03.10 AM. Departure of the team was recorded in the Roznamcha Entry Ex.P/18 and the return entry was made as Ex.P/19. It may be mentioned here that the Roznamcha Entry (Ex.P/18) bears the time 5:41 and thus, the police team could not have left for the crime scene earlier. Apparently thus, the case set out in the prosecution evidence regarding the FIR having been submitted by Banwarilal (PW.1) to the SHO Shri Inder Kumar (PW.12) at 5.00 AM on the crime scene, is patently false and the time of presentation of the FIR as recorded in Ex.P/1, is a sheer fabrication. This conclusion is reinforced when we take note of the fact that the formal FIR (Ex.P/2) was presented in the court of ACJM, Pilibanga on the next day i.e., 17.09.2021 at 11:00 AM. It (Downloaded on 20/05/2022 at 08:43:47 PM) (16 of 31) [MREF-3/2021] may be mentioned here that 16.09.2021 was Thursday and a working day. The Police Station Pilibanga is stones throw away from the Court. Thus, there is no reason as to why, the FIR was presented in the Court after a significant delay of more than 24 hours. There has been a flagrant violation of Section 157 Cr.P.C. because the FIR was forwarded to the Court after a gross and unexplained delay of more than 24 hours.
22. As per the FIR (Ex.P/2) and the statement of Rajkumar (PW.3), the accused did not state in this alleged extra-judicial confession that he had subjected the victim to rape. Thus, the allegation in the FIR that the accused entered the house of the victim with the intention to rape her and then murdered her could only have been mentioned after the medical opinion had been received wherein the presence of semen was suspected in the private parts of the victim.
23. It is recorded in the Roznamcha Entry (Ex.P/18) that telephonic information regarding Surendra @ Mandia having murdered Sunita @ Guddi of Village Dulmana was received at the Police Station Pilibanga at 3:10 AM. Considering the fact that departure time of police from the police station as per Rojnamcha entry was 05:41 AM, the entire sequence of events regarding Banwarilal, Sahdev and Rajkumar having reached the place of incident in the dead of the night; the police having arrived there before 5:00 AM and the submission of the report (Ex.P/1) at 5:00 AM is totally unbelievable and this entire process is tainted and doubtful. These facts coupled with the gross delay in sending the formal FIR to the Court of Magistrate creates a genuine doubt that (Downloaded on 20/05/2022 at 08:43:47 PM) (17 of 31) [MREF-3/2021] the FIR must have been drafted under instructions of the police officer.
24. These grave discrepancies in the prosecution case and the timing noted in the Roznamcha Entry (Ex.P/18) clearly establish that the FIR is an ante-timed document which was drafted after concluding investigation. In view of the facts noted above, the entire prosecution case will have to be appreciated keeping this fact in mind.
25. One of the most significant pieces of evidence which the prosecution relied upon to bring home the charge against the accused is the alleged extra-judicial confession made before Rajaram. The complainant's counsel and the learned Public Prosecutor argued that the finding recorded in the impugned judgment regarding Rajkumar (PW.3) not being the same person as Rajaram referred to in the FIR (Ex.P/1) is perverse and should be reversed. This argument needs to be examined in depth with analysis of the relevant evidence. The trial court recorded a finding at Para 16 of the impugned judgment (supra) that Rajaram before whom the extra-judicial confession was allegedly made was not examined by the prosecution. Banwarilal (PW.1), admitted that Surendra's father had two brothers named Vijay and Sugreev. He admitted the defence suggestion that Rajaram and Rajkumar are not the same persons. It would be fruitful to reproduce the following lines from the cross-examination of Banwarilal (PW.1):-
"यह कहना भी गलत है कक राजाराम द्ारा ककोई बात न बताई गई हको। यह कहना गलत है कक राजकुमार ् राजाराम एक वयककत हको ।"(Downloaded on 20/05/2022 at 08:43:47 PM)
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26. The IO took no steps whatsoever to reconcile this serious discrepancy in the prosecution case regarding the true identity of the witness of the alleged extra-judicial confession. We therefore, feel that the finding recorded by the trial court at para 16 of the impugned judgment that the prosecution failed to examine the person named Rajaram in whose presence the accused made the extra-judicial confession is not liable to interference. The finding recorded by the trial court at para 16 (supra) of the judgment that the defence should have examined Rajaram in order to controvert the prosecution theory of extra-judicial confession is nothing but putting the cart before the horse. We are compelled to hold that the conclusion drawn by the trial court in the above referred paragraph of the impugned judgment that the defence was under
an obligation to examine Rajaram and as it failed to do so, the version of Banwarilal wherein he stated that the accused made an extra-judicial confession before the said Shri Rajaram remained un-controverted, is perverse and illegal on the face of record. Disclosure made by Rajaram to Banwarilal regarding the so-called extra-judicial confession made by the accused would be hearsay which cannot be admitted in evidence. Hence, we are of the firm view that the prosecution failed to lead proper evidence to prove the circumstance of extra-judicial confession
27. After eschewing the extra-judicial confession from consideration, the other pieces of circumstantial evidence which remain on record to connect the accused with the alleged crime can be enumerated as below:-
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1. Recovery of the mobile phone of the deceased at the instance of the accused.
2. Recovery of the footprint impressions of the accused from the crime scene.
3. Recovery of a clump of hair from the hands of the victim DNA whereof matched with the DNA of the accused.
4. Discovery of semen stains on the clothes of the victim.
28. Now, we proceed to discuss these remaining links of circumstantial evidence which the learned trial court found to be proved against the accused. Firstly, we consider the factum of recovery of mobile phone claimed to have been effected at the instance of the accused vide memorandum Ex.P/40. In this regard, suffice it to say that it is an admitted case of the prosecution that the accused himself owns a smartphone which was recovered from his possession when his personal search was taken at the time of arrest vide arrest memo (Ex.P/20). The mobile phone which was recovered at the instance of the accused vide seizure memorandum Ex.P/21 is a Bar phone. The prosecution tried to claim that the said mobile phone had been purchased by Smt. Guddi on 11.09.2021 vide bill Ex.P/42.
However, this bill bears no details as to who presented the same to the IO. The owner of the Guru Mobile Cafe from where the bill was allegedly issued was not examined in evidence. Though the model number of the mobile phone is mentioned in the bill but the IMEI number thereof is not mentioned which makes its veracity doubtful. It at all, the deceased had purchased a mobile instrument, in natural course, she would be using the same. (Downloaded on 20/05/2022 at 08:43:47 PM)
(20 of 31) [MREF-3/2021] However, none of the prosecution witnesses disclosed the sim number being used by the deceased. The Investigating Officer too, did not procure the call detail records. Apparently thus, this bill was also stage-managed by the Investigating Officer just in order to create evidence against the accused in an endeavour to prove the case and claim the glory. Consequently, the recovery of the mobile phone vide memorandum Ex.P/21 neither inspires confidence nor the same could be linked to the deceased.
29. The next important piece of evidence which the prosecution has relied upon against the accused is in form of the DNA report Ex.P/11 as per which, the hair which were recovered clutched in between the fingers of the victim vide memo Ex.P/6 matched with the DNA profile of blood collected from the accused vide memorandum Ex.P/16. The prosecution claimed that after the dead body had been brought to the mortuary of Community Health Centre, Pilibanga, the Investigating Officer Inder Kumar noticed a clump of human hair stuck in the grasp of the deceased which was seized vide seizure memorandum Ex.P/6. This document was attested by the witnesses Rajaram and Satpal. At captioned portion 'G' to 'H' of this memorandum, the Investigating Officer noted that these hair could be of accused Surendra Kumar. Apparently, thus, the investigating officer was already having a pre-conceived notion that the hair recovered were of Surendra Kumar @ Mandia. This clump of hair was seized and packed in a polythene bag which was given Mark 'A'. This memorandum was prepared at 10:45 am on 16.09.2021. The prosecution also claimed that the dead body of the victim was (Downloaded on 20/05/2022 at 08:43:47 PM) (21 of 31) [MREF-3/2021] photographed by photographer Shri Jagdish Kumar (PW.11) who stated in his evidence that he clicked the photographs of the dead body of Smt. Guddi as well as of the place of incident. He snapped photographs of Guddi Devi's dead body at Pilibanga Hospital between 9-10 AM. He admitted that nothing was visible in the hands of the victim as per the photographs Ex.P/32, Ex.P/33 and Ex.P/34.
30. We have carefully seen the photographs and find that the left hand of the victim is very clearly visible. In these photographs Ex.P/32 and Ex.P/33, the fingers of the deceased are bent inwards but no hair are visibly stuck in between the fingers. As the photographer snapped the pictures at the mortuary between 9-10 AM, it can be presumed that the dead body must have been brought there much earlier. But surprisingly, none of the prosecution witnesses claims to have noticed the clump of hair stuck in the hands of the deceased before the memo Ex.P/26 was prepared at 10:45 AM.
31. The witness Ratiram (PW.6) stated that the police seized the clump of hair from the left hand of Guddi Devi vide memorandum Ex.P/6. The doctor took out the hair and packed the same. However, the witness admitted that he did not observe this procedure.
32. When we take note of the statements of the witnesses Banwarilal (PW.1), Sahdev (PW.2) and Raj Kumar (PW.3) who claim to have reached the place of incident and participated in the (Downloaded on 20/05/2022 at 08:43:47 PM) (22 of 31) [MREF-3/2021] proceedings undertaken by the police at crime scene, it becomes clear that none of them stated that they noticed hair stuck in the hands of the victim.
33. IO Inder Kumar (PW.12) proved memorandum Ex.P/6 in his evidence and stated that a clump of hair was visible in the hands of the deceased as per the photographs Ex.P/32 to Ex.P/34. However, this claim of the IO is patently incorrect when the photographs are closely scrutinized.
34. As we have already concluded that the FIR (Ex.P/2) is a post investigation document, all steps of investigation undertaken by the Investigating Officer on 16.09.2021 came under a cloud of doubt.
35. Furthermore, when evidence of the IO Shri Inder Kumar is scrutinized for the purpose of testing the veracity of the link evidence required to prove the safe keeping of the samples of this case, it comes out that he did not utter a single word as to how the case articles were dealt with after the same were seized by him during the course of investigation. At the FSL, comparison of the DNA profiles was carried out interse between the hair allegedly seized from the victim's fingers and the blood sample collected from the accused. As per consent form (Ex.P/16), the blood sample as well as hair of the accused were collected for DNA profiling. However, the report (Ex.P/11) is silent as to why the DNA profiles of both Hair Samples was not compared. Furthermore, the consent of the accused was not properly taken (Downloaded on 20/05/2022 at 08:43:47 PM) (23 of 31) [MREF-3/2021] at the time of collection of the blood and hair samples as the Form (Ex.P/16) is in english language with which the accused is not conversant and only two police personnels were associated as Panchas in this procedure. Thus, this procedure also tainted and the report (Ex.P/11) has no sanctity whatsoever.
36. The witnesses who were examined pertaining to the deposit and transit of the Malkhana articles were Rajendra Kumar (PW.10), Carrier Constable Vijay (PW.13) and Constable Rameshwar Lal, the Malkhana Incharge who was examined as PW.5.
37. Rameshwar Lal (PW.5) stated in his evidence that he was the In-charge of Malkhana of Police Station Pilibanga. Some articles of this case were deposited in the Malkhana on 16.09.2021. However, he did not state as to who deposited these article packets. On 17.09.2021, Radhey Shyam Sub-Inspector (PW.7) deposited some more articles of the case with him. These malkhana articles were forwarded to the two different forensic laboratories, one at Bikaner and the other at Jaipur through Constables Rajendra Kumar and Vijay Kumar respectively.
38. The prosecution has presented the report (Ex.P/27) received from the Regional Forensic Science Laboratory, Bikaner, Serology Division claiming that it provides strong proof to connect the accused with the crime. The report indicates that human blood was detected in the vaginal swab and vaginal smear and from the Ghaghra of the victim. The result for semen blood grouping (Downloaded on 20/05/2022 at 08:43:47 PM) (24 of 31) [MREF-3/2021] proved inclusive in all these articles. Report (Ex.P/55) was received from the Finger Print Bureau, Government of Rajasthan, Jaipur as per which, the chance fingerprints lifted from a glass lying at the place of incident could not be matched with the specimen fingerprints of the accused. Another report (Ex.P/68) was received from the Regional Forensic Science Laboratory, Bikaner, as per which, bare-foot impressions lifted from the place of incident matched with the specimen impressions prepared from the foot marks of the accused. Report (Ex.P/10) was received from the Regional Forensic Science Laboratory, Bikaner as per which, human semen was detected in the vaginal swab, vaginal slide smear and clothes of the victim as well as the underwear of the accused. It may be stated here that the prosecution did not make any attempt to get the DNA comparison of the semen stains carried out.
39. Now, we examine the medical evidence in light of the allegation set out by the prosecution that the accused subjected the victim to rape and violence in her house during the night time and in this process, the victim's private parts, got stained with semen of the accused; the victim tried to resist and in this process, a clump of hair of the assailant got stuck in her left hand and was recovered by the IO when the Panchnama proceedings were undertaken. The accused left behind telltale foot prints at the crime scene.
40. As per the statement of the medical jurist Dr. Hariom Bansal (PW.4), there were no marks of struggle on the dead body of the (Downloaded on 20/05/2022 at 08:43:47 PM) (25 of 31) [MREF-3/2021] victim. As per the postmortem report (Ex.P/9), no injury was detected on the private parts of the victim. Since, the prosecution has claimed that the victim put up a strong struggle and in this process, she was able to pull out a clump of hair from the head of the accused which was subsequently recovered by the IO leading to the DNA comparison report, manifestly, she must have put up a strong fight to resist the assault. In this eventuality, injuries were bound to be noticed on the body of the deceased and so also on the accused when he was arrested. However, as is evident from the testimony of the medical jurist PW.4 Dr. Hariom Bansal, not a single mark of violence was noticed on the dead body of the victim so much so that even the area of the neck beneath which the symptoms of asphyxia were noticed, were not having any visible indications of violence/use of force.
41. The deceased was an old lady of about 60 years. As per the testimony of Banwarilal, he did not take much cognizance of the complaint made by Smt. Guddi Devi when she came to him in the night stating that the accused had taken away her mobile phone. In cross-examination, the witness admitted that this was a routine occurrence. Meaning thereby, that there was some kind of acceptability in the relations between the accused and the victim and that is why, even though she made a complaint to her brother-in-law regarding the alleged misbehavior by the accused in the odd hours of night, he did not think it fit to take any action thereupon. This being the situation, there was no reason as to why the accused would be required to go to the extent of using extreme force on the deceased in his quest for sexual gratification. (Downloaded on 20/05/2022 at 08:43:47 PM)
(26 of 31) [MREF-3/2021] Hence, we are of the opinion that the theory putforth by the prosecution that the accused subjected the deceased to rape and while he was forcing himself on to the lady, she resisted and in this process, the accused throttled her is highly doubtful.
42. The prosecution tried to prove through the FSL Report (Ex.P/27) that semen was detected in the vaginal smear and swab of the victim. However, if the accused had indulged in an act of forcible sexual assault on the victim during the process whereof so much of force was used, that she was choked and also managed to snatch the hair of the appellant, then this alleged violence would definitely have resulted into visible external injuries/marks of struggle being noticed on the victim's dead body. However, it is an admitted position that the medical jurist did not notice any such marks of violence when postmortem examination was carried out and the report (Ex.P/9) was prepared.
43. The IO claimed that DNA comparison of the hair found stuck in the hands of the deceased and the blood sample collected from the accused was undertaken. In this background, there was no reason not to get the same process conducted on the semen stains as well. Hence, the recovery of semen in the vaginal swabs, smear of the deceased and the underwear of the accused, which has been treated to be an incriminating circumstance against the accused also appears to be nothing but a sheer piece of fabrication made by the IO in an endeavor to prove the case and claim the glory thereof.
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44. Lastly, the circumstance of matching foot-mould impressions needs to be discussed. In this regard, the prosecution claimed that one set of suspected foot-moulds/chance footprints were lifted from the place of incident vide memorandum Ex.P/8. The IO Inder Kumar (PW.12) thereafter, prepared the specimen foot-moulds of the accused at the police station vide memorandum Ex.P/23. However, Shri Inder Kumar admitted in his cross-examination that he neither associated a magistrate nor were independent witnesses joined when the specimen foot-mould impressions of the accused were prepared vide memorandum Ex.P/23 wherein only two police constables were associated as Panch witnesses. This procedure as undertaken by the IO for collecting the specimen foot-moulds impressions is totally contrary to the Rule 6.26 of the Rajasthan Police Rules, 1965 which reads as below:-
"6.26 Importance of footprints and track evidence. - (1) Footprints are of the first importance in the investigation of crime. For this reason all officers incharge of Police Stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime. (2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for identification of suspects. The attendance of a magistrate of the highest available status shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate of other witnesses, and in conformity with any reasonable directions of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity (Downloaded on 20/05/2022 at 08:43:47 PM) (28 of 31) [MREF-3/2021] with any reasonable directions which they may give, ground shall be prepared for the tests. On this grounds the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the tests shall record the names of all these persons and the order in which they enter the test ground, While these preparations are proceeding the tricker or other witness-who is to be asked to identify the tracks shall be prevented from approaching the place or seeing any of the persons be called up and required to examine both the original tracks and those on the test ground, and thereafter to make this statement. The magistrate, or in his absence, the Police Officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bonafides. The officer investigating the case and his assistant shall be allowed no share in the conduct of the test. Tracks found which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer.
The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance but under the strictest safeguards of comparing with the original tracks, other tracks made on similar ground and in similar conditions. (3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of criminal or criminals found at the scene of the crime. In making moulds for production as evidence the following precautions should be observed-
(a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same (Downloaded on 20/05/2022 at 08:43:47 PM) (29 of 31) [MREF-3/2021] witnesses must be present during the preparation of the moulds.
(b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting.
(c) After the procedure described in sub-rule (2) above has been completed a mould should be prepared in the presence of the magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the magistrate or witnesses when still setting.
(d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court."
45. Thus, the FSL report (Ex.P/68) of matching foot-mould impressions is also inconsequential because the procedure prescribed in the Police Rules was not followed by the IO at the time of preparation of foot-moulds impressions. Furthermore, as Banwarilal and his companions had already traipsed the crime scene before arrival of police, there was no possibility of the Investigating Officer being able to isolate and lift only two bare foot impressions claiming that they were left behind by the suspect. Hence, the FSL report (Ex.P/68) is inconsequential and does not help the prosecution in its quest to prove the case against the accused.
46. Law is well settled that the prosecution has to stand on its own legs and the weakness of the defence can never be considered to be a ground to record an adverse finding against the accused in a case based totally on circumstantial evidence. The prosecution must prove its case by leading unimpeachable evidence which is consistent with the guilt of the accused and inconsistent with his innocence, then only would the defence be (Downloaded on 20/05/2022 at 08:43:47 PM) (30 of 31) [MREF-3/2021] required to rebut the case of the prosecution. Reference in this regard may be had to the Supreme Court judgment in the case of Sharad Birdichand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622 wherein it was held as below:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved". 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 with the hypothesis of guilt and 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."
47. As a consequence of above discussion, we are of the firm view that the prosecution has failed to prove the case as against the accused by leading unimpeachable, acceptable circumstantial evidence. Hence, the impugned judgment dated 29.11.2021 cannot be sustained and the same is quashed and set aside. The accused appellant is acquitted of the charges. He is in jail and (Downloaded on 20/05/2022 at 08:43:47 PM) (31 of 31) [MREF-3/2021] shall be set at liberty forthwith, if not wanted in any other case. The reference is answered in negative. The appeal is allowed as above.
48. However, keeping in view the provisions of Section 437-A Cr.P.C., accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
49. Record be returned to the trial court forthwith.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Sudhir Asopa/Devesh/-
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