Rajasthan High Court - Jaipur
Raju @ Rajendra Kumar vs State Of Rajasthan Through Pp on 15 May, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 792/2015
Mohan Lal S/o Shri Panchu Ram, aged 33 years, B/c Mali, R/o
Renwal Road, Panchiya Ki Dhani, Ward No.2, Chomu, District
Jaipur.
(At present lodged in Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With
D.B. Criminal Appeal No. 837/2015
Raju @ Rajendra Kumar S/o Shri Bajrang Lal, aged about 27
years, B/c Meena, R/o Kikraliya, Police Station Ranoli, District
Sikar.
(At present confined at Central Jail, Jaipur)
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
D.B. Criminal Appeal No. 877/2015
1. Smt. Santosh W/o Late Shri Sanwar Mal Saini, aged about 34
years, B/c Mali, R/o Panchu-Ki-Dhani, Ward No.2, Chomu,
District Jaipur.
2. Dharmendra S/o Lila Ram, aged 34 years, B/c Meena, R/o
Itawa Bhopji, Police Station Samod, District Jaipur.
(Both appellants at present lodged in the Central Jail, Jaipur)
----Appellants
Versus
State Of Rajasthan Through P.P.
----Respondent
D.B. Criminal Appeal No. 792/2015
For Appellant : Mr. V.R. Bajwa with
Mr. Amar Kumar
For Respondent : Mr. Javed Choudhary, Add. Govt. Adv.
For Complainant : Mr. Madhav Mitra with
Mr. Veerendra Singh
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D.B. Criminal Appeal No. 837/2015
For Appellant : Mr. Rajesh Goswami with
Mr. Nikhil Sharma
For Respondent : Mr. Javed Choudhary, Add. Govt. Adv.
For Complainant : Mr. Madhav Mitra with
Mr. Veerendra Singh
D.B. Criminal Appeal No. 877/2015
For Appellants : Mr. Ashvin Garg with
Mr. Ajay Singh Tanwar
Mr. Suresh Sahni with
Mr. R.M. Sharma
For Respondent : Mr. Javed Choudhary, Add. Govt. Adv.
For Complainant : Mr. Madhav Mitra with
Mr. Veerendra Singh
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
15/05/2019
Vide this order above mentioned three appeals would be
disposed of as they have arisen out of the same judgment/order
dated 18.08.2015.
Vide Exhibit P-1, complainant Ramnarayan moved a
complaint to the Station House Officer, Govindgarh for registration
of case against the accused. It was the case of the complainant
that his brother Sanwarmal had gone to the house of Mukesh
Manawat on 02.12.2011 at about 6.00 p.m. and had stayed there
up to 8.30 p.m. Thereafter, at about 9.30 p.m., his brother had
gone with Mohan Lal. When his brother did not return home, he
tried to contact him on his mobile-phone, but remained
unsuccessful. During the night, at about 3.30 a.m., Mukesh
Manawat and Ankit came to his residence and told him that dead
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body of Sanwarmal was lying near Badhala College, Govindgarh.
On receipt of the information, he reached the spot and found that
his brother had suffered injuries with sharp edged weapon and
had been strangulated with the help of a rope. It had been
projected that it was a case of an accident.
On the basis of the said complaint, formal FIR No.230 dated
03.12.2011 was registered at police station Govindgarh, District
Jaipur Rural under Section 302, 201 Indian Penal Code, 1860
(hereinafter referred to as I.P.C.).
After completion of investigation and necessary formalities,
challan was presented against accused Mohanlal, Santosh, Raju @
Rajendra and Dharmendra.
Charges were framed against the accused under Section
302/34, 201 and 120-B I.P.C. Accused did not plead guilty and
claimed trial.
In order to prove its case, prosecution examined thirty two
witnesses. After close of prosecution evidence, accused when
examined under Section 313 Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.'), prayed that they were
innocent and had been falsely involved in this case.
Accused examined DW-1 Panchuram in their defence.
Trial court vide judgment/order dated 18.08.2015, convicted
accused Mohanlal, Dharmendra and Raju @ Rajendra under
Section 302/120-B and 201 I.P.C., whereas, accused Santosh was
convicted qua offence punishable under Section 302/120-B I.P.C.
Accused were sentenced to undergo life imprisonment under
Section 302/120-B I.P.C. and were imposed a fine of Rupees two
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thousand each and in default of payment of fine, they were further
ordered to undergo rigorous imprisonment for two months.
Accused Mohanlal, Raju @ Rajendra and Dharmendra were
sentenced to undergo rigorous imprisonment for two years under
Section 201 I.P.C. and were imposed fine to the tune of Rupees
five hundred each and in default of payment of fine, they were
ordered to undergo rigorous imprisonment for fifteen days. Hence,
the present appeals by the convicts.
Learned counsel for the appellants have submitted that the
prosecution had miserably failed to prove its case. Case rests on
circumstantial evidence. Prosecution had failed to complete the
chain of events leading to the guilt of the appellants. As per the
FIR and the statement of the complainant recorded under Section
161 Cr.P.C., appellants were not attributed any motive to have
committed the crime-in-question. There was no evidence to the
effect that the deceased was last seen in the company of the
appellants. Lot of padding had been done by the prosecution to
strengthen its case. The circumstance of lifting of foot moulds
from the spot had been falsely incorporated by the prosecution to
strengthen its case. As per PW-15 Indraj Singh, the unpaved path
was made up of sand which could shift its place. Hence, it could
not be said that the foot moulds could have been lifted from the
spot after three days of the occurrence, i.e., on 05.12.2011. Foot
moulds were not lifted in the presence of the Magistrate. The call
records produced on record were not admissible in evidence as
there was no certificate obtained under Section 65-B of the Indian
Evidence Act, 1872. Circumstance to show that the murder had
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been committed at one place and thereafter, dead body had been
shifted to another place in a pick-up van had also been falsely
incorporated. The pick-up van-in-question had not been recovered
on the basis of the disclosure statement suffered by any of the
appellant, but had been recovered from its registered owner.
Circumstance of recovery of one monogram from the pick-up van
was also falsely introduced. On the day, the van was taken in
possession, no recovery of any incriminating material was effected
from the van. Van was parked in the police station. On the next
day, recovery of monogram and lime was shown from the van to
strengthen the prosecution case. On the day, shoes of the
deceased were taken in police possession, no note was made that
a monogram on one of the shoe of the deceased was missing.
Recovery of currency notes had also been falsely foisted on the
appellants. The call details alleged to have been made by the
appellant Mohanlal to the deceased was also not established as
the said mobile-phone was in the name of DW-1, father of the
appellant Mohanlal. The said witness has deposed that the mobile-
phone No. 9828041970 was in his name was being used by him.
The iron angle alleged to have been recovered from appellant Raju
@ Rajendra had been falsely foisted on him. There was no
evidence on record that appellant Santosh had the money to pass
on to her co-accused for committing the murder of her husband
Sanwarmal. In-fact, complainant has falsely involved the
appellants in this case as he was not having any land in his name.
Land was in the name of the father of the complainant. Father of
the complainant was residing with Sanwarmal and appellant
Santosh. By involving appellant Santosh falsely in this case,
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complainant wants to take the share of Sanwarmal out of the
property owned by his father. Thus, PW-1 can be said to benefit on
account of false involvement of appellants Santosh as well as
Mohanlal in this case. There was no evidence on record with
regard to any conversation between appellants Raju @ Rajendra
and Dharmendra with appellant Mohanlal to establish that there
was any conspiracy amongst them. Appellant Santosh did not
have any mobile-phone in her name. In support of his arguments,
learned counsel has placed reliance on the decision of the Hon'ble
Supreme Court in case of John Pandian Vs. State represented
by Inspector of Police, Tamil Nadu, (2010) 14 Supreme
Court Cases 129, wherein, it has been held as under:-
"The only other witness posed against
Kareem is PW-38, K. Veerasamy who acted
as the mahazar witness. According to this
witness, this accused had discovered
Rs.18,000/-, two sovereigns gold chain and a
scooter. He proved Exhibit P-45. The seizure
memo is Exhibit P-48. In our opinion, this
discovery would be of no consequence
whatsoever unless material objects
discovered are connected to the crime in any
manner. Nobody deposed as to who had paid
money to this witness nor has it been
brought on record that it was he who
purchased the so-called gold chain and the
scooter and even if he has, the prosecution
has miserably failed to show that the money
passed to him was only from Venkatraman
(A-1) via Sivakumar (A-2). Therefore, on the
basis of discovery, it will be extremely risky
to book this accused and hold him a member
of the conspiracy. It must be said that all
these aspects were viewed by the trial and
the appellate Court with jaundiced eyes.
Merely because there are some discoveries
they do not in any manner connect the
accused and there is no presumption that
merely because the accused has some things
in his possession, which he fails to explain,
therefore, all this money and the gold chain
must have come only on account of the
money that he had allegedly received as a
member of the conspiracy from Sivakumar
(A-2). In our opinion, this evidence would fall
short to hold that he was a member of the
conspiracy. This may, at the most, raise
suspicion against him but that would be
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completely without any justification. This
accused would, therefore, has to be given
the benefit of doubt.
X--------X--------X-------X-------X------X-----X
He is said to have discovered a Titan watch
vide M.O. 11 and cash vide M.O. 12. We do
not see as to how any of these material
objects can be connected with the
conspiracy. No evidence has been brought on
record to suggest that he could not have
Rs.23,000/-. The evidence of discovery is
again a weak kind of evidence and this Court,
on a number of occasions, has refused to rely
solely on the discovery evidence. There is
nothing brought on record suggesting that
these 23,000 of rupees were paid to him by
Venkatraman (A-1) via Sivakumar (A-2).
There is no connection established in
between him and John Pandian (A-7) or for
that matter, Kumar s/o Vellaichami (A-9),
Pavunraj @ Pavun (A-10) and Prince Kumar
@ Prince (A-11).
X--------X--------X-------X------X------X------X
Mere recovery of money would be of no
consequence unless the prosecution comes
out with a case and give some prima facie
evidence that this cash was a part of the
money that he had received after encashing
the cheque. In fact, there is nothing to
suggest that he had not given back the cash.
X-------X-------X------X------X------X---------X
Further, even if it is presumed that from
these accused persons money was
discovered there is nothing on record that
the money was given by Venkatraman (A-1)
to accused No.2, Sivakumar and through him
to all the other accused persons."
Learned counsel has next placed reliance on the decision of
Punjab And Haryana High Court in case of Niranjan Lal Vs.
State of Haryana, 1995 CRILJ 248, wherein, it has been held
as under:-
"The next piece of evidence on which
the prosecution based reliance was the lifting
of fooot moulds from the scence of
occurrence and comparison of the same with
the specimen foot moulds of the appellants.
This piece of evidence is also suspicious. It
has come in the statements of prosecution
witnesses that before the arrival of the police
about 50-60 persons from the village had
visited the place of occurrence which was a
ploughed field. Although two persons were
left to guard the spot, there is nothing to
suggest that any foot prints were preserved
by them. It was only when the investigating
officer reached the spot that he noticed only
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four foot prints of which the moulds were
prepared. This lifting of four foot moulds,
when no mention of the same is made in the
inquest report, is highly doubtful. Shankar
Pal PW 11 was examined by the prosecution
regarding the lifting of foot moulds from the
spot. He stated that police took into
possession Gulla, blood stained earth and a
harrow from the spot and also lifted four foot
prints from the scene of occurrence after
moulds were prepared. But this statement
regarding moulds is an addition made by the
witness in his statement in Court. The
statement of the witness was recorded in the
inquest report Ex.PX wherein he did not
make any mention about the lifting of foot
moulds from the spot though he was specific
regarding the other recoveries made by the
police at the time the inquest was prepared.
It has also come in evidence that as soon as
the appellants were arrested their footwears
were seized vide separate recovery memos.
There is, however, nothing on record to show
that when specimen moulds were prepared
by Khalil Ahmad those very shoes were
returned to the appellants and they were
asked to wear the same. Statement of PW 6
Tehsildar, Rewari who took specimen foot
moulds is silent about that fact. Rather in his
cross-examination, he deposed that the
appellants were never provided any shoes or
Chappals in his presence. All these
circumstances show that in fact no crime
moulds were prepared at the spot and all the
moulds were prepared after the arrest of the
appellants. This contention is further fortified
from the fact that crime moulds were not
sent immediately to the Director, Forensic
Science Laboratory. The appellants' version
was that they were arrested much before the
time their actual arrest was shown and some
telegrams were also sent to the senior police
officers regarding their apprehension by the
police. It is too good a co-incident to be
believed that the investigating officer only
noticed four foot prints near the place of
occurrence which spot had been visited by
numerous persons before his arrival and then
those foot prints tallied with one specimen
foot mould of each of the appellants. The
evidence regarding foot moulds was procured
evidence and that is why some interpolation
had to be made in the register Malkhana
maintained in the police station. PW 7 Babu
Lal head constable admitted in his cross-
examination that in the register of Malkhana
there was cutting regarding the number of
moulds of shoes and chappals and numbers
were altered. Even otherwise the science of
identification of foot prints is a rudimentary
science and much reliance cannot be placed
on the result of such identification. In the
case of Chandran @ Surendran & Anr. vs.
State of Kerala 1990 (3) Recent Criminal
Reports 644 where robbery and murder were
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committed and the case was based on
circumstanial evidence; Finger prints found
on two glass pieces at the place of
occurrence tallied with finger prints of the
accused and some recovery was also made
at the instance of the accused, it was held by
the Apex Court that these were scanty pieces
of circumstantial evidence highly hazardous
to rely for conviction of the accused.
Considering the evidence regarding
comparison of crime moulds with specimen
moulds as discussed above, we find that no
reliance can be placed on the same in order
to connect the appellants with the
commission of the crime."
Learned counsel has next placed reliance on the decision of
the this Court in case of Sunder & Ors. Vs. State of Rajasthan,
2015 (2) RCC (Raj.) 699, wherein, it has been held as under:-
"Thus, Rule 6.26 (3) requires that
prior to taking the impression of the
footprints and before making a mould, the
footprints found on scene of the crime must
be pointed out to reliable witnesses.
However, in the present case neither Prahlad
Singh (P.W.22), nor Jagdish (P.W.13) states
that the footprints of the alleged accused
persons were pointed out to them. According
to Rule 6.26 (3)(c), the moulds of the
footprints should be made either in front of
Magistrate, or in front of witnesses. The said
moulds have to be signed either by the
Magistrate, or the witnesses. According to
Rule 6.26 (3) (d), during the course of trial
the mould should be produced in the court
for identification by the witnesses and
comparison by the court. However, in the
present case, according to Prahlad (P.W.22),
the footprints were not lifted from the place
of the occurrence in front of a magistrate.
They were, in fact, lifted in front of Jagdish.
But Jagdish is not an independent witness as
he is one of the sons of the deceased.
Furthermore, according to Jagdish (P.W.13),
the moulds of the footprints were not
produced before the trial court during his
testimony for his identification and for
comparison by the court. Therefore, the
procedure established by the rules has not
been followed. Moreover, the second
recovery witness, Kunwar Singh, has not
been produced by the prosecution. Thus, a
material witness has been withheld by the
prosecution. Therefore, considering the
contradictions between the witnesses,
considering the contradiction between the
testimonies of the witnesses and the site
plan, considering the fact that the procedure
prescribed by law has not been followed,
considering the conduct of the prosecution in
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withholding an independent witness of
recovery from the court, the recovery of the
footprints from the scene of the crime cannot
be believed."
Learned counsel has next placed reliance on the decision of
the Hon'ble Supreme Court in case of Anvar P.V. Vs. P.K.
Basheer & Ors., (2014) 10 Supreme Court Cases 473,
wherein, it has been held as under:-
"Any documentary evidence by way of
an electronic record under the Evidence Act,
in view of Sections 59 and 65A, can be
proved only in accordance with the procedure
prescribed under Section 65B.Section
65B deals with the admissibility of the
electronic record. The purpose of these
provisions is to sanctify secondary evidence
in electronic form, generated by a computer.
It may be noted that the Section starts with
a non obstante clause. Thus, notwithstanding
anything contained in the Evidence Act, any
information contained in an electronic record
which is printed on a paper, stored, recorded
or copied in optical or magnetic media
produced by a computer shall be deemed to
be a document only if the conditions
mentioned under sub- Section (2) are
satisfied, without further proof or production
of the original. The very admissibility of such
a document, i.e., electronic record which is
called as computer output, depends on the
satisfaction of the four conditions
under Section 65B(2). Following are the
specified conditions under Section 65B(2) of
the Evidence Act:
(i) The electronic record containing the
information should have been produced by
the computer during the period over which
the same was regularly used to store or
process information for the purpose of any
activity regularly carried on over that period
by the person having lawful control over the
use of that computer;
(ii) The information of the kind contained in
electronic record or of the kind from which
the information is derived was regularly fed
into the computer in the ordinary course of
the said activity;
(iii) During the material part of the said
period, the computer was operating properly
and that even if it was not operating
properly for some time, the break or breaks
had not affected either the record or the
accuracy of its contents; and
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(iv) The information contained in the record
should be a reproduction or derivation from
the information fed into the computer in the
ordinary course of the said activity.
Under Section 65B(4) of the Evidence
Act, if it is desired to give a statement in
any proceedings pertaining to an electronic
record, it is permissible provided the
following conditions are satisfied:
(a) There must be a certificate which
identifies the electronic record containing
the statement;
(b) The certificate must describe the
manner in which the electronic record was
produced;
(c) The certificate must furnish the
particulars of the device involved in the
production of that record;
(d) The certificate must deal with the
applicable conditions mentioned
under Section 65B(2) of the Evidence Act;
and
(e) The certificate must be signed by a
person occupying a responsible official
position in relation to the operation of the
relevant device.
It is further clarified that the person
need only to state in the certificate that the
same is to the best of his knowledge and
belief. Most importantly, such a certificate
must accompany the electronic record like
computer printout, Compact Disc (CD), Video
Compact Disc (VCD), pen drive, etc.,
pertaining to which a statement is sought to
be given in evidence, when the same is
produced in evidence. All these safeguards
are taken to ensure the source and
authenticity, which are the two hallmarks
pertaining to electronic record sought to be
used as evidence. Electronic records being
more susceptible to tampering, alteration,
transposition, excision, etc. without such
safeguards, the whole trial based on proof of
electronic records can lead to travesty of
justice."
X------X-------X------X-------X------X--------X
The evidence relating to electronic
record, as noted herein before, being a
special provision, the general law on
secondary evidence under Section 63 read
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with Section 65 of the Evidence Act shall
yield to the same. Generalia specialibus non
derogant, special law will always prevail over
the general law. It appears, the court
omitted to take note of Sections
59 and 65A dealing with the admissibility of
electronic record. Sections 63 and 65 have
no application in the case of secondary
evidence by way of electronic record; the
same is wholly governed by Sections
65A and 65B. To that extent, the statement
of law on admissibility of secondary evidence
pertaining to electronic record, as stated by
this court in Navjot Sandhu case (supra),
does not lay down the correct legal position.
It requires to be overruled and we do so. An
electronic record by way of secondary
evidence shall not be admitted in evidence
unless the requirements under Section
65B are satisfied. Thus, in the case of CD,
VCD, chip, etc., the same shall be
accompanied by the certificate in terms
of Section 65B obtained at the time of taking
the document, without which, the secondary
evidence pertaining to that electronic record,
is inadmissible."
Learned counsel has next placed reliance on the decision of
the Hon'ble Supreme Court in case of Babubhai Bhimabhai
Bokhiria & Another Vs. State of Gujarat & Ors., AIR 2014
Supreme Court 2228, wherein, it has been held as under:-
"The other evidence sought to be
relied for summoning the appellant is the
alleged conversation between the appellant
and the accused on and immediately after
the day of the occurrence. But, nothing has
come during the course of trial regarding
the content of the conversation and from
call records alone, the appellant's complicity
in the crime does not surface at all."
Learned counsel has next placed reliance on the decision of
the Hon'ble Supreme Court in case of Digamber Vaishnav &
Another Vs. State of Chhattisgarh, JT 2019 (2) SC 602,
wherein, it has been held as under:-
"The prosecution has relied upon the
evidence of PW-8 to show that the accused
and victims were last seen together. It is
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settled that the circumstance of last seen
together cannot by itself form the basis of
holding accused guilty of offence. If there is
any credible evidence that just before or
immediately prior to the death of the
victims, they were last seen along with the
accused at or near about the place of
occurrence, the needle of suspicion would
certainly point to the accused being the
culprits and this would be one of the strong
factors or circumstances inculpating them
with the alleged crime purported on the
victims. However, if the last seen evidence
does not inspire the confidence or is not
trust worthy, there can be no conviction. To
constitute the last seen together factor as
an incriminating circumstance, there must
be close proximity between the time of
seeing and recovery of dead body.
X------X------X------X------X-------X--------X
PW-8 in her evidence has stated that
the accused had come one day before in the
night, and next day, Amrika, Mala, Badi
Amma, Amma and Kondi Didi had died. She
is a child witness. We have already noticed
that she has not witnessed the incident. PW-
1 in his evidence says that PW-8 had come
to his house at 2.00 to 2.30 P.M. and
informed him about the death of the
deceased persons. PW-8 has not disclosed
the identity of the appellants to PW-1. That
is why the FIR was registered against
unknown persons. We have also noticed the
inconsistencies in her evidence apart from
the fact that the other children present in
the house on that day were not examined.
There is a substantial loss of time from
when PW-8 saw the deceased and the
appellants together on 16.12.2012 and
when the deceased were found on
17.12.2012. In such circumstances, it is
difficult to draw an inference that the
appellants had committed the crime."
Learned counsel has next placed reliance on the decision of
the Hon'ble Supreme Court in case of Vijender etc. Vs. State of
Delhi, 1997 (1) Crimes 158 (SC), wherein, it has been held as
under:-
"Another elementary statutory breach
which we notice in record-ing the evidence
of the above witnesses is that of Section
27 of the Evidence Act. Evidence was led
through the above three police witnesses
that in consequence of information received
from the three appellants on June 30, 1992
they discovered the place where the dead
body of Khurshid was thrown. As already
noticed, the dead body of Khurshid was
recovered on June 27, 1992 and therefore
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the question of discovery of the place where
it was thrown thereafter could not arise.
Under Section 27 of the Evidence Act if an
information given by the accused leads to
the discovery of a fact which is the direct
outcome of such information then only it
would be evidence but when the fact has
already been discovered as in the instant
case the evidence could not be led in
respect thereof."
Learned state counsel who is assisted by the counsel for the
complainant, has opposed the appeals and has submitted that the
prosecution has been successful in proving its case. In-fact,
appellant Santosh was having illicit relations with appellant
Mohanlal and in connivance with each other they hired the
services of appellants Dharmendra and Raju @ Rajendra and
committed the murder of Sanwarmal. After committing the
murder of Sanwarmal at point-X of Exhibit P-10 they had thrown
the dead body at point-X of Exhibit P-11. The dead body was
thrown at point-X (as shown in Exhibit-11) to given a colour of an
accidental death, although, it was a case of murder. All the chain
of circumstances proved on record by the prosecution lead to the
inference that the appellants had committed the murder of
Sanwarmal. Recovery of currency notes has been effected from
the appellants Mohanlal, Dharmendra and Raju @ Rajendra. From
appellant Dharmendra, weapon used at the time of commission of
crime has been recovered and as per the Forensic Science
Laboratory report, the said weapon was smeared with human
blood. Sanwarmal had received a phone-call from appellant
Mohanlal at about 8.00 p.m. and had told PW-8 at about 8.30.
p.m. that he was going to meet Mohanlal. Thus, it was established
that the deceased was in the company of Mohanlal at the time of
commission of crime. From the call details proved on record, it
was established that the accused were in conversation with each
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other and had hatched a conspiracy to commit the murder of
Sanwarmal.
Present case relates to murder of Sanwarmal. Case rests of
circumstantial evidence.
It has been held by the Hon'ble Supreme Court in case of
Brajendrasingh vs. State of Madhya Pradesh AIR 2012
Supreme Court 1552, as under:-
"There is no doubt that it is not a case
of direct evidence but the conviction of the
accused is founded on circumstantial
evidence. It is a settled principle of law that
the prosecution has to satisfy certain
conditions before a conviction based on
circumstantial evidence can be sustained.
The circumstances from which the conclusion
of guilt is to be drawn should be fully
established and should also be consistent
with only one hypothesis, i.e. the guilt of the
accused. The circumstances should be
conclusive and proved by the prosecution.
There must be a chain of events so complete
so as not to leave any substantial doubt in
the mind of the Court. Irresistibly, the
evidence should lead to the conclusion
inconsistent with the innocence of the
accused and the only possibility that the
accused has committed the crime. To put it
simply, the circumstances forming the chain
of events should be proved and they should
cumulatively point towards the guilt of the
accused alone. In such circumstances, the
inference of guilt can be justified only when
all the incriminating facts and circumstances
are found to be incompatible with the
innocence of the accused or the guilt of any
other person. Furthermore, the rule which
needs to be observed by the Court while
dealing with the cases of circumstantial
evidence is that the best evidence must be
adduced which the nature of the case admits.
The circumstances have to be examined
cumulatively. The Court has to examine the
complete chain of events and then see
whether all the material facts sought to be
established by the prosecution to bring home
the guilt of the accused, have been proved
beyond reasonable doubt. It has to be kept
in mind that all these principles are based
upon one basic cannon of our criminal
jurisprudence that the accused is innocent till
proven guilty and that the accused is entitled
to a just and fair trial."
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It has also been held by the Hon'ble Supreme Court in
Bachan Singh vs. State of Punjab 1980 (2) SCC 684, as
under:-
"In the light of the above conspectus,
we will now consider the effect of the
aforesaid legislative changes on the authority
and efficacy of the propositions laid down by
this Court in Jagmohan's case. These
propositions may be summed up as under:
(i) The general legislative policy that
underlies the structure of our criminal law,
principally contained in the Indian Penal Code
and the Criminal Procedure Code, is to define
an offence with sufficient clarity and to
prescribe only the maximum punishment
therefore, and to allow a very wide discretion
to the Judge in the matter of fixing the
degree of punishment. With the solitary
exception of Section 303, the same policy
permeates Section 302 and some other
sections of the Penal Code, where me
maximum punishment is the death penalty.
(ii) (a) No exhaustive enumeration of
aggravating or mitigating circumstances
which should be considered when sentencing
an offender, is possible. "The infinite variety
of cases and facets to each case would make
general standards either meaningless 'boiler
plate' or a statement of the obvious that no
Jury (Judge) would need." (Referred to
McGantha v. California (1971) 402 US 183
(b) The impossibility of laying down
standards is at the very core of the criminal
law as administered in India which invests
the Judges with a very wide discretion in the
matter of fixing the degree of punishment.
(iii) The view taken by the plurality in
Furman v. Georgia decided by the Supreme
Court of the United States, to the effect, that
a law which gives uncontrolled and un-guided
discretion to the Jury (or the Judge) to
choose arbitrarily between a sentence of
death and imprisonment for a capital offence,
violates the Eighth Amendment, is not
applicable in India. We do not have in out
Constitution any provision like the Eighth
Amendment, nor are we at liberty to apply
the test of reasonableness with the freedom
with which the Judges of the Supreme Court
of America are accustomed to apply "the due
process" clause. There are grave doubts
about the expediency of transplanting
western experience in our country. Social
conditions are different and so also the
general intellectual level. Arguments which
would be valid in respect of one area of the
world may not hold good in respect of
another area.
(iv) (a) This discretion in the matter
of sentence is to be exercised by the Judge
judicially, after balancing all the aggravating
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and mitigating circumstances of the crime.
(b) The discretion is liable to be
corrected by superior courts. The exercise of
judicial discretion on well-recognised
principles is, in the final analysis, the safest
possible safeguard for the accused.
In view of the above, it will be
impossible to say that there would be at all
any discrimination, since crime as crime
may appear to be superficially the same but
the facts and circumstances of a crime are
widely different Thus considered, the
provision in Section 302, Penal Code is not
violative of Article 14 of the Constitution on
the ground that it confers on the Judges an
un-guided and uncontrolled discretion in the
matter of awarding capital punishment or
imprisonment for life.
(v) (a) Relevant facto and circumstances
Impinging on the nature and circumstances
of the crime can be brought before the
Court at the pre-conviction stage,
notwithstanding the fact that no formal
procedure for producing evidence regarding
such facto and circumstances had been
specifically provided. When counsel
addresses the Court with regard to the
character and standing of the accused, they
are duly considered by the Court unless
there is something in the evidence itself
which belies him or the Public Prosecutor
challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P. C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article
21."
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(18 of 27) [CRLA-792/2015] Thus, it is a settled preposition of law that where a case rests on circumstantial evidence, the prosecution is required to complete the chain of events which should be consistent only with the hypotheses of the guilt of the accused. All the circumstance have to be conclusive in nature and should negate the possibility of having someone else committed the offence and should also negate the innocence of the accused.
Let us examine the circumstances proved on record by the prosecution in order to come to the conclusion as to whether chain of the circumstances brought on record by the prosecution lead to the inference of the guilt of the accused and negate the possibility of having someone else committed the murder of the deceased Sanwarmal.
One circumstance brought on record by the prosecution is with regard to call details of appellants Mohanlal, Santosh and Dharmendra. However, admittedly, certificate under Section 65-B of the Evidence Act is not available on record with regard to the said call details. PW-28 Investigating Officer has stated in his cross-examination that he had not obtained the certificates of the call details collected during investigation of the appellants under Section 65-B of the Evidence Act. PW-25 Rajesh, Nodal Officer and PW-26 Prabhat Kumar, official of the mobile-phone company, had also deposed in their cross-examination that they had not issued the certificates under Section 65-B of the Evidence Act. Thus, in view of the judgment of the Hon'ble Supreme Court in Anvar P.V. case (supra), the call details placed on record are inadmissible in evidence. Thus, the circumstance of call details relied upon by the prosecution fails to advance the prosecution case. The mobile- (Downloaded on 29/06/2019 at 01:21:49 AM)
(19 of 27) [CRLA-792/2015] phone allegedly used by appellant Mohanlal is in the name of his father Panchu Ram and Panchu Ram while appearing in the witness-box as DW-1 has stated that the mobile-phone which was in his name was being used by him.
The next circumstance brought on record by the prosecution is with regard to foot moulds lifted from the spot where the murder had been allegedly committed by the appellants. In this regard, testimony of PW-15 Indraj Singh would be relevant. Murder in the present case was committed on the night of 02.12.2011, whereas, as per PW-15 foot moulds were lifted on 05.12.2011. The said witness has also deposed in his cross- examination that the soil at the place from where the foot moulds were lifted was dry sand in nature and shifts its place on account of wind. Thus, it becomes doubtful whether the foot moulds were available for being lifted after three days of the occurrence as the soil at the place of incident might have shifted its place within three days. Hence, the circumstance brought on record by the prosecution with regard to lifting of the foot moulds from the spot to connect the same with the Chappal of the appellant Mohanlal and shoe of appellant Dharmendra is rendered doubtful.
The next circumstance brought on record by the prosecution is that murder of the Sanwarmal was committed at one place and thereafter, the dead body was shifted in a pick-up van to another place to give the crime a colour of roadside accident. The owner of the pick-up van (Jagdish) was examined as PW-10. The said witness has not supported the prosecution case, during trial and has stated that on the day of occurrence, the vehicle-in-question had remained in his possession. Moreover, the pick-up van was (Downloaded on 29/06/2019 at 01:21:49 AM) (20 of 27) [CRLA-792/2015] taken in possession by the police vide Exhibit P-23 on 06.12.2011 and on the said date no incriminating substance was recovered from the pick-up van. Admittedly, there were no blood stains in the pick-up van or any other evidence to show that it has been used at the time of commission of crime. As per Exhibit P-24 on 07.12.2011 broken monogram of the shoe of the deceased was allegedly recovered from the pick-up van. It is not understandable as to how the said monogram was recovered from the pick-up van on the next day. Moreover, as per Exhibit P-6 vide which the articles belonging to the deceased were taken in police possession, there was no mention that monogram was missing on one of the shoe of the deceased. Hence, it appears that the story that one monogram was lifted from the pick-up van on 07.12.2011 was later incorporated with a view to connect the appellants with the crime. Thus, the circumstance that the pick-up van was used by the appellants to shift the dead body of the deceased from one place to another place (from where it was recovered) cannot be said to be duly established by the prosecution.
The next circumstance brought on record by the prosecution is that Sanwarmal had gone to the house of PW-8 Mukesh Manawat at about 6.00 p.m. and had left his house at about 8.30 p.m. after telling him that he was going to meet appellant Mohanlal. PW-1 Ramnarayan (complainant) has also stated that he had been told by Mukesh Manawat that Sanwarmal had left his house after telling him that he was going to meet Mohanlal. PW-8 has stated that Sanwarmal had received a phone-call at about 8.00 p.m. and had thereafter told him while living his house that he was going to meet Mohanlal. However, the said witness in his (Downloaded on 29/06/2019 at 01:21:49 AM) (21 of 27) [CRLA-792/2015] cross-examination deposed that as and when Sanwarmal used to receive a phone-call, he would not tell him as to who had called him. He had not heard the conversation of Sanwarmal on his phone. He could not tell about the calls received by Sanwarmal on 02.12.2011 from 6.00 p.m. till 8.00 p.m. Moreover, in the absence of cogent evidence with regard to the call details between appellant Mohanlal and deceased prior to the accident, the circumstance that the deceased had actually met appellant Mohanlal after leaving the house of PW-8 is rendered doubtful.
The next circumstance brought on record by the prosecution is with regard to recovery of currency notes from the appellants Mohanlal, Raju @ Rajendra and Dharmendra. It is the case of the prosecution that appellant Santosh had received money on account of sale of some property. Appellant Santosh handed over money to appellant Mohanlal to be paid to appellant Raju @ Rajendra and Dharmendra to commit the murder of Sanwarmal. Thus, as per the prosecution story, appellants Raju @ Rajendra and Dharmendra had been hired to commit the murder of Sanwarmal, thus, it was a case of contract killing. It is the prosecution case that out of the money handed over by appellant Santosh to appellant Mohanlal, he kept some money with himself and handed over some amount to appellants Raju @ Rajendra and Dharmendra. During investigation, Rupees one lac was recovered from appellant Mohanlal on the basis of his disclosure statement. From appellant Dharmendra Rupees ninety thousand were recovered, whereas, from appellant Raju @ Rajendra Rupees twenty two thousand were recovered, during investigation on the basis of their disclosure statements. Although, it is the prosecution (Downloaded on 29/06/2019 at 01:21:49 AM) (22 of 27) [CRLA-792/2015] case that money had been handed over by appellant Santosh to appellant Mohanlal for committing the murder of Sanwarmal, but the question that requires consideration is as to whether appellant Santosh had the money in hand to pass on the same to appellant Mohanlal. In this regard, statement of Investigating Officer is relevant as none of the material witnesses have deposed with regard to handing over of money by appellant Santosh to appellant Mohanlal for committing the crime. Although, it is the prosecution story that appellant Santosh had got money on account of sale of property, but PW-28 Investigating Officer has deposed in his cross-examination that he had investigated with regard to receipt of cash by the accused on account of sale of property, but no such document was available on record. There was no material on record to the effect that who was the owner of the property and who had sold the same or when it was sold and when money was received by whom. Nothing had transpired during investigation as to when appellants Mohanlal and Santosh had conspired to commit the murder or had given money to the killers. Thus, although, currency notes had been recovered from the accused, but in the absence of any material on record to show that appellant Santosh was in a position to give money for contract killing, the circumstance of recovery of currency notes from appellants Mohanlal, Raju @ Rejendra and Dharmendra fails to advance the prosecution case.
Another circumstance brought on record by the prosecution is that the deceased had been strangulated with the help of a scarf. The scarf has been recovered on the basis of disclosure statement suffered by appellant Mohanlal. However, PW-12 Dr. (Downloaded on 29/06/2019 at 01:21:49 AM) (23 of 27) [CRLA-792/2015] R.K. Vijayvargiya deposed in his cross-examination that the marks present on the neck of the deceased could be result of wire or rope, but could not be a result of a muffler, scarf or saree. Hence, the circumstance of recovery of scarf from the appellant Mohanlal has been rightly discarded by the trial court as the said recovery fails to advance the prosecution case.
The next circumstance that requires consideration is as to whether appellant Mohanlal and appellant Santosh were having illicit relations. Complaint was moved by the complainant Ramnarayan PW-1 on 03.12.2011. In the said complaint, it has not been mentioned that the murder had been committed by appellant Mohanlal in connivance with appellant Santosh on account of their illicit relations. Consequently, the said fact is not mentioned in the FIR. Even in the statement of the complainant recorded under Section 161 Cr.P.C., it has not been stated by him that the murder had been committed by appellant Mohanlal and appellant Santosh on account of their illicit relations. It is for the first time, during trial, PW-1 has stated that appellant Santosh and appellant Mohanlal were having illicit relations and due to this reason they had committed the murder of Sanwarmal by conspiring with each other with the help of Dharmendra and Raju @ Rajendra. PW-1 is none other than the brother of the deceased. He has admitted in his cross-examination that he knew about illicit relations of the appellants Mohanlal and appellant Santosh prior to the incident and other family member also knew about the same and had been asking them to mend their ways. However, PW-1 for the reasons best known to him did not incorporate in the FIR that appellant Mohanlal and appellant Santosh were having illicit (Downloaded on 29/06/2019 at 01:21:49 AM) (24 of 27) [CRLA-792/2015] relations and due to this reason, murder of Sanwarmal had been committed. Thus, motive attributed to appellants Mohanlal and appellant Santosh, during trial, did not form part of the FIR. In a murder case resting on circumstantial evidence motive gains significance. However, no motive was attributed to appellant Mohanlal or any other accused in the FIR. In-fact, in the FIR, it was only alleged that the deceased had gone to meet Mohanlal and had not returned home thereafter.
PW-8 Mukesh Manawat deposed that he was a friend of Sanwarmal. In his cross-examination, he deposed that Sanwarmal had never talked to him about illicit relations of his wife with Mohanlal. PW-9 Ankit Pareek is the friend of the deceased and he had deposed that the fact that appellants Sanwarmal and Mohanlal were having illicit relations was disclosed to him by PW-
1. He admitted that Sanwarmal had never disclosed to him that his wife was having illicit relations with any person. PW-28 Investigating Officer has stated in his cross-examination that during investigation none of the witnesses had made the statement with regard to illicit relations of appellants Santosh and Mohanlal.
Exhibit P-4 is the fard panchayatnama prepared on 03.12.2011 under Section 174 Cr.P.C. A perusal of the same reveals that it is mentioned therein that death of Sanwarmal had occurred on account of injuries suffered by him in an unknown roadside accident. The said document is duly signed by the complainant. The said document was prepared at 9.00 a.m. Thereafter, postmortem examination was conducted at 11.00 a.m. on 03.12.2011, wherein, it was opined by the Board of Doctors (Downloaded on 29/06/2019 at 01:21:49 AM) (25 of 27) [CRLA-792/2015] that the cause of death was asphyxia due to strangulation with cumulative effect of associated injuries. In the postmortem report also, it has been mentioned that the dead body had been brought with a history of injuries suffered in an unknown road accident. Thereafter, complaint was moved by the complainant at 1.55 p.m. on 03.12.2011 alleging that his brother Sanwarmal had been murdered. As per FIR, it has been stated by the complainant that when he saw the dead body of his brother, he found that he had suffered injuries with sharp edged weapons. Thus, it appears that after the postmortem examination report, complainant lodged the report with the police involving appellant Mohanlal.
As per the FIR, complainant had alleged that he had been told by Mukesh Manawat that Sanwarmal had gone to meet their neighbor Mohanlal at about 9.30 p.m. While appearing in the witness-box, complainant has made material improvement in his statement and has alleged that he had seen Sanwarmal with Mohanlal (son of his uncle) in Chomu at 9.30 p.m. The said fact is not mentioned in the FIR. The fact that appellants Mohanal and Santosh were having illicit relations is also not mentioned in the FIR, but has been stated by the complainant in his statement for the first time, during trial. The possibility that appellants Mohanlal and Santosh have been falsely involved in this case by the complainant by giving an improved version, during trial, cannot be ruled out.
PW-9 Ankit Pareek deposed that he later came to know that wife of Sanwarmal was having illicit relations with her brother-in- law Mohanlal and they had got the murder committed with the help of contract killers. In his cross-examination, he deposed that (Downloaded on 29/06/2019 at 01:21:49 AM) (26 of 27) [CRLA-792/2015] he had come to know about the said fact after two/three days of the murder. The fact that Mohanlal and Santosh were having illicit relations was disclosed to him by the complainant. Thus, the statement of PW-9 can be said to be hearsay and fails to advance the prosecution case.
Thus, keeping in view the above discussion, it can be said that prosecution has miserably failed to establish that appellants Mohanlal and Santosh had the motive to kill Sanwarmal. Appellant Mohanlal and appellant Santosh are closely related to the complainant. In case, complainant suspected that his brother had been murdered by appellants Mohanlal and Santosh, he should have incorporated the said fact at the time of lodging of the FIR. However, as per the FIR, no motive was attributed to appellant Mohanlal or any other appellant with regard to the commission of crime. Since, the motive alleged by the prosecution is doubtful, as it was introduced at a later stage, the other circumstances introduced by the prosecution lead to the inference that they had been later set up by way of padding to strengthen the prosecution case.
Thus, in the present case, prosecution has failed to complete the chain of circumstances which lead to the conclusion of guilt of the appellants and to conclusion inconsistent with their innocence. Rather all the circumstances put together, fail to point towards guilt of the appellants and prosecution story is rendered doubtful.
It is a settled preposition of law that an accused presumed to be innocent till proved guilty. Prosecution is required to lead cogent and convincing evidence to establish the guilt of the accused beyond the shadow of reasonable doubt. Whenever, there (Downloaded on 29/06/2019 at 01:21:49 AM) (27 of 27) [CRLA-792/2015] is doubt in the prosecution story, benefit of the same has to be extended to the accused.
Since, in the present case, prosecution story is doubtful, appellants are liable to be acquitted of the charges framed against them.
Accordingly, appeals are allowed. Judgment/order dated 18.08.2015 of the trial court are set aside. Consequently, appellants are acquitted of the charges framed against them. Appellants-accused Mohan Lal S/o Shri Panchu Ram, Smt. Santosh W/o Late Shri Sanwar Mal Saini and Dharmendra S/o Lila Ram are in custody, they are serving the sentence, therefore, they be released forthwith, if not required in any other case.
Appellant-accused Raju @ Rajendra Kumar S/o Shri Bajrang Lal is on bail, therefore, his bail bonds are discharged.
In view of the provisions of Section 437-A Cr.P.C., appellants namely Mohan Lal S/o Shri Panchu Ram, Smt. Santosh W/o Late Shri Sanwar Mal Saini, Dharmendra S/o Lila Ram and Raju @ Rajendra Kumar S/o Shri Bajrang Lal are directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Mohita /17-18-19
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