Rajasthan High Court - Jodhpur
Mahaveer @ Liliya vs State Of Rajasthan on 3 April, 2014
Author: Govind Mathur
Bench: Govind Mathur
D.B.CRIMINAL APPEAL NO.148/2006
1/12
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR.
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JUDGMENT
MAHAVEER @ LILIYA V/S STATE OF RAJASTHAN
D.B.Criminal Appeal No.148/2006
under section 374 CR.PC against the
judgment dated 07.10.2005 passed by
the Sessions Judge, Churu in sessions
Case No.01/2005.
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DATE OF ORDER 03.04.2014
PRESENT
HON'BLE MR. GOVIND MATHUR,J
HON'BLE MR. ATUL KUMAR JAIN ,J
Mr.Tarun Dhaka, Amicus curiae
Mr.Vishnu Kachchhawaha, Public Prosecutor for the State
BY THE COURT (Per Hon'ble Mr.Jain,J.):
This Criminal Appeal was filed by the accused- appellant Mahaveer @ Liliya against the judgment dated 07.10.2005 passed by the Sessions Judge, Churu in Sessions Case No.01/2005 whereby that court had convicted and sentenced the accused-appellant Mahaveer @ Liliya as under:-
D.B.CRIMINAL APPEAL NO.148/2006 2/12
1. 302 IPC Life imprisonment with fine of Rs.1000/-, in default of payment of fine to further undergo two months SI.
2. 4/25 Arms Act One year RI with fine of Rs.1000/-, in default of payment of fine to further undergo two months RI.
The accused-appellant was in custody from 19.10.2004 to 07.10.2005. The benefit of section 428 Cr.PC had also been given by the trial court to the accused-appellant. It has been argued in this case that without any substantial evidence, the accused has been convicted by the trial court on the basis of surmises and conjectures and the prosecution story was full of doubts but the trial court has not given benefit of doubt to the accused. Learned Public Prosecutor has opposed the arguments of the Amicus curiae.
We have gone through the record. We have also perused the impugned judgment. The arguments of both the parties have been heard.
D.B.CRIMINAL APPEAL NO.148/2006 3/12 The charge sheet under section 302 IPC etc. had been submitted against the accused-appellant Mahaveer @ Liliya basically on the basis of three extra judicial confessions which had allegedly been made in the presence of Pema Ram, Mani Ram and Dinesh Kumar. All these three persons had been examined under section 161 Cr.PC and in those statements, they had narrated that the accused Mahaveer @ Liliya had admitted before them that in a state of intoxication, he had committed murder of a lady by cutting her throat with the help of a 'Talwar'. It is surprising that none of all these three persons before whom the extra judicial confessions had allegedly been made by the accused-appellant was examined by the prosecution as prosecution witness. This fact creates serious doubt in the prosecution story.
The trial court has convicted the accused-appellant Mahaveer @ Liliya on the basis of recovery of 'Talwar' from him and also on the basis of blood stains being found on his clothes which were matching to the stains found on the clothes of the deceased Smt. Saraswati Devi. The D.B.CRIMINAL APPEAL NO.148/2006 4/12 accused-appellant was arrested on 19.10.2004 at 04:30 PM allegedly in the presence of Dinesh Kumar Nai and Mani Ram Prajapat but none of these two Motbirs has been examined by the prosecution as a witness. In the memo of arrest (Exp.18), it has not been mentioned that the clothes of the accused were having blood stains. The murder of the lady had allegedly been committed on 16.10.2004 at about 12:30 in the noon in the 'Jungle' known as Bagla Beed No.1. The prosecution wants to seek help from the 'Fard Jabti Parchat' (Exp.7) which was made soon after the arrest of the accused Mahaveer @ Liliya on 19.10.2004 but the time of making this 'Fard' has not been mentioned in the 'Fard'. This 'Fard' was made in the presence of two Police Constables only and no other motbir was kept in this 'Fard' and in this 'Fard' it has been mentioned that the clothes worn by the accused- appellant Mahaveer @ Liliya at the time of his arrest were blood stained and so his clothes (Paint and Shirt) were taken and seized from his body and sealed. The prosecution has not been found able to explain the conduct of the Investigating Officer that why the D.B.CRIMINAL APPEAL NO.148/2006 5/12 witnesses were changed and why the Motbirs were not produced in the witness box to prove the recovery of blood stained clothes though the accused was arrested in the presence of two motbirs and why only the police constables have been made witnesses to the 'Fard Jabti Parchat' which is Exp.7. In the circumstances of the case, it cannot be said that the clothes worn by the accused- appellant at the time of his arrest were found blood stained. Furthermore, the murder was committed on 16.10.2004 and the accused was arrested on 19.10.2004. It has been argued by the Amicus Curiae that had the clothes been blood stained at the time of murder then the accused-appellant would have easily washed the clothes in the pond and thus, he would have been able to run away from the clutches of law. The argument of the learned Amicus Curiae on this point is also considerable.
The prosecution has relied upon the FSL report (Exp.22) which says that 'Odana' and 'Ghaghra' of the deceased lady were also having stains of blood group-A and Paint and Shirt of the accused were also having D.B.CRIMINAL APPEAL NO.148/2006 6/12 stains of blood group-A. It has not been mentioned anywhere in the charge sheet papers that blood of the deceased lady was of group-A. The blood group of the deceased could have been identified easily but the prosecution has not bothered to examine the blood group of the deceased lady. This also creates doubt in the prosecution story.
Then comes recovery of 'Talwar'. 'Fard Jabti Talwar' is Exp.15. This recovery had also allegedly been made in the presence of two motbirs namely Rajendra Prasad Nai and Mahaveer Singh Rajput. Rajendra Prasad Nai has not been examined as a prosecution witness and only Mahaveer Singh Rajput had been examined by the prosecution as PW8. Mahaveer Singh, PW8 supports recovery of the 'Talwar' at the instance of the accused- appellant Mahaveer @ Liliya. It is pertinent to mention here that prosecution witness Prem Chand PW2, has given statement that 'Talwar' had been shown to him by the Police Inspector and it was the same 'Talwar' which he had seen in the hands of the accused-appellant Mahaveer D.B.CRIMINAL APPEAL NO.148/2006 7/12 @ Liliya. Thus, it appears that recovery of 'Talwar' from the accused-appellant Mahaveer @ Liliya is also not free from doubt. It has also been argued on behalf of the Amicus Curiae in the case that the recovery had allegedly been made from the place which was almost open and the recovery has allegedly been made after five days of the incident. If the 'Talwar' had not been sealed at the spot then its recovery from the accused-appellant becomes doubtful. It may further be mentioned here that in the FSL report (Exp.22), group of the blood found on the 'Talwar' could not be determined by the FSL for one or other reason. This fact also creates doubt in the prosecution story.
Homicidal death of Smt. Saraswati Devi aged 55 years, is an admitted fact in the case. The postmortem report (Exp.20) also proves the fact that the death was caused by shock due to excessive haemorrhage from injury on the neck. No motive has been alleged against the accused-appellant for committing such a serious offence like murder of Smt. Saraswati Devi. It has been D.B.CRIMINAL APPEAL NO.148/2006 8/12 stated that while under intoxication, he got a 'Talwar' from somewhere and thus, he committed the murder of the lady for no reason. The investigating officer has not been able to find out the place from which the accused got the 'Talwar'. Thus, investigation in the case is also not to the mark.
In the aforesaid background, much importance cannot be given to the statements of PW1 Chandra Ram, PW1 and Prem Chand, PW2 who had stated that they had seen the accused-appellant with a 'Talwar' in his hands. The persons in whose presence, extra judicial confessions had allegedly been made by the accused-appellant have also not been examined by the prosecution. PW3 Smt. Meera is daughter in law of Smt. Saraswati Devi. She states nothing against the accused-appellant. Similarly, PW4 Shubhkaran is son of the deceased lady. He has also given no evidence against the accused-appellant. PW5 Rajendra Prasad, FC is a witness of information given under section 27 of the Indian Evidence Act which was recorded in Exp.8 by the Investigating Officer for recovery D.B.CRIMINAL APPEAL NO.148/2006 9/12 of 'Talwar'. This witness has also said that he had seized one 'pair of chappals' of accused-appellant but this recovery of 'Chappals' does not connect the accused- appellant with the offence of murder.
PW6, Sita Ram is also a witness of recovery of dead body and recovery of clothes worn by the deceased lady. He has also not been able to connect the accused- appellant with the alleged offence. PW7 Sultan has also not given any concrete evidence against the accused- appellant. Similarly, PW9 Ved Prakash, FC and Shubhkaran, FC are also witnesses of 'Fard Jabti Chappals' (Exp.6) and 'Fard Jabti Parchat' (Exp.7) and memo of information Exp.8. In the facts and circumstances of the case, much reliance cannot be placed on these police employees to support a doubtful prosecution story.
PW10 Prahlad Rai had conducted investigation of the case. Most of the important documents of the prosecution have been exhibited by this witness in his examination in D.B.CRIMINAL APPEAL NO.148/2006 10/12 chief but in his cross examination, he has not been able to explain the infirmities of the investigation. He has not been able to explain why the Motbirs of arrest memo were changed on the same date when 'Fard Jabti Parchat' was prepared. He has also not been able to prove the fact that recovery of 'Talwar' was not made from an almost open place. He has also not been able to explain the reason that why the three witnesses of alleged extra judicial confession had not come in the witness box to support the prosecution story.
The facts mentioned in the postmortem report have been proved by PW11 Dr. J.P.Mahayach. He also proved homicidal death of Smt. Saraswati Devi. PW12, Bhanwar Singh is Malkhana In charge and PW13 Vikram Singh and PW16 Chunni Lal are carriers of the samples. PW14 Deepak is a photographer who exhibits photos of the deceased lady. PW15 Mustak Ali, HC exhibits formal FIR (Exp.4) which was registered on the basis of written report (Exp.1).
D.B.CRIMINAL APPEAL NO.148/2006 11/12 In the circumstances of he case, it can be said that Smt.Saraswati was murdered in the noon of 16.10.2004 in the 'Jungle of Dabla Beed No.1 by some unknown person and only on the basis of doubt, the accused-appellant Mahaveer @ Liliya was arrested. Some concocted extra judicial confessions had allegedly been recorded in the police investigation but all the three persons who could have been witnesses of extra judicial confessions of the accused-appellant have not supported the prosecution story and they have abstained from coming into the witness box.
Thus, it can be said that the prosecution story is full of doubts in this case. Benefit of reasonable doubt should have been given by the trial court to the accused- appellant Mahaveer @ Liliya but the trial court has failed to do so. Recover of the 'Talwar' from the accused- appellant has also not been proved beyond doubt and in these circumstances of the case, the accused-appellant Mahaveer @ Liliya deserves acquittal and his appeal deserves acceptance. Accordingly, his appeal is accepted D.B.CRIMINAL APPEAL NO.148/2006 12/12 and he is acquitted from the charges of section 302 of Indian Penal Code and section 4/25 of the Arms Act, 1959. The Judgment passed by the Sessions Judge, Churu in Sessions case No.01/2005 is hereby quashed and set aside. The accused-appellant, if in jail, be released forthwith. A copy of this judgment be supplied to the accused-appellant through the concerned Jail Superintendent. Record of the trial court be also sent back along with a copy of the judgment immediately preferably within seven days.
[ATUL KUMAR JAIN], J. [GOVIND MATHUR], J. Anil Singh