Rajasthan High Court - Jodhpur
Ram Lal vs State on 22 November, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 452 / 2016
Ram Lal S/o Bharu Gurjar, By caste Gurjar, Resident of Madari,
P.S. Kunwariya, District Rajsamand.
----Appellant
Versus
State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 661 / 2016
Roshan Lal S/o Shri Devi Lal Gurjar, Resident of Agalgaon, P.S.
A met, District Rajsamand.
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Farzand Ali & Mr. J.V.S. Deora.
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
(2 of 25)
[CRLA-452/2016]
JUDGMENT
Per Hon'ble Mr. G.K. Vyas, J.
Date of Judgment: 22nd November, 2017 Both these criminal appeals are filed under Section 374 (2) of Cr.P.C. against the judgment of conviction and order of sentence dated 12th May, 2016 passed by learned Additional Sessions Judge, Gulabpura, District Bhilwara (Trial Court) in Session Case No.3/2013, whereby the appellants were convicted for offences under Sections 302/34, 397/34, 364/34 & 201/34 of IPC and following sentence was passed against them:
302/34 of IPC Imprisonment for life along with fine of Rs.20,000/- with default stipulation to further undergo six months additional simple imprisonment.
201/34 of IPC Seven years' rigorous imprisonment along with fine of Rs.5000/- with default stipulation to further undergo two months additional simple imprisonment.
397/34 of IPC Seven years' rigorous imprisonment. (Qua appellant-
Ramlal only) 364/34 of IPC Ten years' rigorous imprisonment along with fine of Rs.20,000/- with default stipulation to further undergo six months additional simple imprisonment.
As per facts of the case, complainant Deepak Bafna (PW.2) submitted a written report at Police Station Asind on 07.11.2012 (3 of 25) [CRLA-452/2016] alleging therein that his brother-in-law, Jitendra Mehta, who is doing business of jewellery, however, on the unfate day when he could not reach at home, an enquiry was made by him, but his brother-in-law, Jitendra Mehta (deceased) was found missing. Upon the aforesaid information, FIR No.382/2012 was registered at Police Station Asind under Section 364 of IPC on 07.11.2012 and investigation commenced.
During the course of investigation, principal accused viz. Roshanlal, was apprehended by the police and upon his information to the effect that he along with co-accused abducted Jitendra Mehta and snatched gold articles and committed murder. The accused appellant Roshanlal was arrested vide arrest memo (Ex.P/17) on 08.11.2012 at 03.00 PM, and while he was in custody, an information was given by him under Section 27 of the Evidence Act vide Ex.P/21, in which it was disclosed by him that he can identify the place from where the deceased (Jitendra Mehta) was abducted and taken in the vehicle, Alto Car bearing registration number RJ-30-CA-0383 and after committing his murder, they had thrown his dead body in the Well. In pursuance of aforesaid information, all the three places from where Jitendra Mehta (deceased) was abducted and way in which he was murdered and the Well, where the dead body was thrown, were identified by him. The car (Alto RJ-30-CA-0383 of silver colour) was also recovered vide Ex.P/18 in the presence of two witnesses, namely, Laxman Ram and Rameshwar Meena. The dead body of the deceased was recovered from the Well of Kishanlal near a (4 of 25) [CRLA-452/2016] brick kiln and "Panchayatnama" (Ex.P/4) of the dead body was prepared in front of five persons. The dead body was taken to the Primary Health Centre, Bagor, for postmortem on 08.11.2012, the body was subjected to postmortem by the Medical Board and postmortem report (Ex.P/16) was prepared and given to the investigating officer for investigation. As per opinion of the Medical Board, the cause of death was asphyxia resulted from strangulation. After postmortem, the dead body of the deceased was handed over to the complainant Deepak Bafna, brother-in-law of the deceased vide Ex.P/7.
On 12.11.2012 after registration of the FIR another information was given on 12.11.2012 by complainant Deepak Bafna to the effect that deceased, Jitendra Mehta was doing the business of jewellery, therefore, took some gold and silver ornaments from his firm M/s Deep Jewelers on 07.11.2012 to sell, therefore, he apprehended that deceased was abducted for taking said ornaments.
Appellant- Ramlal was arrested vide arrest memo (Ex.P/27) on 10.11.2012 at 09.20 PM in front of two witnesses and one more accused viz. Madanlal Gurjar was also arrested on the same day at 09.15 PM. Upon information of accused appellant0 Ramlal, ornaments and currency notes were recovered vide Ex.P/13 in the presence of two witnesses, namely, Jawaharlal and Shyamnath. Similarly upon information given by Madanlal Gurjar, one bag of red colour was recovered, in which gold ornaments and currency notes were found and those recovered articles were taken in (5 of 25) [CRLA-452/2016] possession vide Ex.P/110. Currency notes of Rs.19,000/- and some ornaments were recovered upon information given by accused Roshanlal in the presence to two witnesses, Jawaharlal and Shyamnath. It is worthwhile to observe that initially in the complaint dated 07.11.2012, the complainant nowhere stated that any gold ornaments were in possession of Jitendra Mehta when he was abducted but it is very strange that after recovery of ornaments, another application was submitted by the complainant, in which it was reported that deceased Jitendra Mehta was having gold ornaments. The said information was given by him on 12.11.2012 at 12.10 PM after the so-called recovery of gold ornaments and currency notes from appellant- Roshanlal.
After arresting appellant, Roshanlal, on 08.11.2012 and other accused persons, namely, Ramlal Madanlal Gurjar on 10.11.2012 an information was recorded by the investigating officer on 11.11.2012 for recovery of ornaments from Madanlal Gurjar at 11.30 AM. Another information was recorded on 11.11.2012 at 10.30 AM with regard to recovery of gold ornaments and currency notes which is prior to information given by complainant Dinesh Bafna on 12.11.2012 to the effect that the deceased was having gold ornaments.
The investigating officer on completion of investigation, filed charge sheet against the accused appellants for offence sunder Sections 302, 201, 364A, 364 & 397/34 of IPC including Madanlal Gurjar, in the court of Judicial Magistrate, Arnod, from where the case was committed to the court of Addl. Sessions Judge, (6 of 25) [CRLA-452/2016] Gulabpura for trial. The learned trial court after granting opportunity of hearing to the accused appellants framed charges against three accused persons including appellants for offences under Sections 302/34, 397/34, 364/34 and 201/34 of IPC, which they denied and prayed for trial.
The charges were framed on 24.06.2013 but before framing charge, an application under Section 451 Cr.P.C. was moved before the trial court on 15.02.2013 by the complainant for taking all the ornaments on "Supurgdi", the learned trial court vide its order dated 15.02.2013 ordered for handing over of ornaments and currency notes of Rs.2,47,500/- to the complainant on "Supurdginama" of Rs.60 lacs.
The learned trial court after framing charge proceeded to record evidence of prosecution. In support of its case, statements of 12 prosecution witnesses were recorded and 30 documents were exhibited from prosecution side. Thereafter statements of the accused appellants were recorded under Section 313 Cr.PC. and co-accused Madanlal Gurjar, but they denied the allegations levelled by the prosecution witnesses and said that whole prosecution case is false. Accused- Madanlal Gurjar, in his statements recorded u/s 313 Cr.P.C. stated that, "I am resident of another village and I was not present at the alleged place of occurrence." In defence, statements of one witness DW.-1 Lehru were recorded and thereafter final arguments were heard by the learned trial court.
(7 of 25) [CRLA-452/2016] The learned trial court after hearing the arguments of both the sides evaluated the evidence led by the parties, convicted and sentenced the accused appellants vide its judgment dated 12th May, 2016 for offences under Sections 302/34, 397/34, 364/34 & 201/34 of IPC, however, acquitted accused- Madanlal Gurjar, from the charges levelled against him.
In both the appeals, separately filed by accused appellants, Roshanlal and Ramlal, the judgment dated 12 th of May 2016 is under challenge.
Learned counsel for the appellants vehemently argued that whole prosecution case is based upon concocted and fabricated story of the prosecution. There is total lack of any ingredients which could constitute any offence against the appellants and, therefore, the finding of conviction recorded by learned trial court is not sustainable in law because as the same suffers from material infirmities. It is also argued that no incriminating evidence is available on record against the appellants because none of the accused appellants were named in the FIR and apart from this, there was no allegation whatsoever against anyone in the FIR but during course of investigation on the basis of call details arrested accused appellant Roshanlal, was arrested by the police and thereafter, after upon false information of abduction of deceased, Jitendra Mehta, arrested other co-accused and involved the accused appellant on the basis of false recovery of ornaments and currency notes.
(8 of 25) [CRLA-452/2016] Learned counsel for the appellants submitted that there is no direct or indirect evidence to show that the appellants participated in the crime, nor any direct evidence on record that they were involved in abduction of deceased. There is nothing on record to suggest that prosecution case is based upon trustworthy evidence because the entire case of prosecution is based upon so-called false information furnished by accused appellant Roshanlal, it has not been proved beyond reasonable doubt by the prosecution. As per arguments of the learned counsel for the appellants, the trial court has committed gross error so as to scrutinize the evidence properly available on record and only on the basis of recoveries, which were alleged to be made at the instance of accused appellants, convicted them for the offence of murder of Jitendra Mehta. It is also argued that co-accused Madanlal Gurjar from whom certain recoveries of ornaments were made, but later on, witness of recovery turned hostile, therefore, trial court acquitted him from the charges levelled against him, therefore, the recovery witness in the case of the appellants cannot be said to be trustworthy. As such the case of the appellants it not distinguishable from the case of Madanlal Gurjar, but the learned trial court only on the basis of surmises facts proceeded to convict the accused appellants, which is totally against the settled preposition of law.
Learned counsel for the appellants further submitted that in the first information submitted by the complainant, Deepak Bafna, on 07.11.2012 it is nowhere stated by him the deceased was (9 of 25) [CRLA-452/2016] having any ornaments or currently notes with him, but after five days on 12.11.2012 another information was given by him to the police disclosing the fact that deceased, Jitendra Mehta was jewller and silver and gold ornaments were taken by Jitendra Mehta from him to sell, but it is very strange that information with regard to recovery of ornaments were made prior to information of ornaments and currency notes on 12.11.2012, therefore, this fact itself loudly speaks that accused appellants are falsely implicated in this case. It is also argued that complainant Dinesh Bafna was present when the articles were recovered and it is also one of the important fact that the recovered articles (ornaments and currency notes) from appellants were never put to identification and as such in absence of any sound evidence regarding recovery, said recovery of ornaments cannot be read against the appellants. Thus, it is obvious that whole prosecution case is based upon concocted evidence of recovery. It is also argued that prosecution has miserably failed to prove that the place where from the recovery was made, was the place which was identified by the accused appellant, therefore, in absence of any direct evidence, the prosecution has failed to prove the charges framed against the accused appellants on the basis of circumstantial evidence of recovery. It is further submitted that recovery of vehicle was made from Roshanlal and not from Ramlal and that recovery is also not proved beyond reasonable doubt.
So far as other witnesses are concerned, more particularly, recovery witness, they are servant of the complainant, therefore, (10 of 25) [CRLA-452/2016] it cannot be said that so-called recoveries of ornaments were made before independent witnesses. Lastly, it is argued that the prosecution has failed to prove the factum of last seen of the appellants with the deceased. Had it been a case of abduction and murder, then investigating agency must have collected much evidence to show that appellants abducted the deceased for the purpose of robbery and murder. As per learned counsel for the appellants, it is a case in which the prosecution has miserably failed to prove the case beyond all reasonable doubt and there are considerable contradictions, omissions and improvements in the statements of the prosecution witnesses, therefore, the judgment impugned may kindly be quashed and the appellants be acquitted.
Per contra, learned Public Prosecutor submitted that it is a case in which the principal accused Roshanlal was arrested and upon his information with regard to place of occurrence and dead body was recovered and this fact is proved by the prosecution beyond reasonable doubt. Further, the recoveries of gold and silver ornaments and currency notes were made upon information given by the accused appellants, which is proved by independent witnesses, therefore, there is no question to accept the argument of the learned counsel for the appellants that the accused appellants are not guilty for committing offence of murder and robbery. According to learned Public Prosecutor, the ornaments were belonging to complainant Dinesh Bafna, and he was very much present at the time of recovery of ornaments, then there was no question for identification proceedings of those articles, (11 of 25) [CRLA-452/2016] therefore, there is no strength in the arguments of the learned counsel for the appellants that ornaments were not put for identification.
Learned Public Prosecutor vehemently argued that it is a case in which the prosecution has proved its case beyond reasonable doubt on the basis of recovery of dead body at the instance of accused appellant Rohsnalal and recovery of ornaments and currency notes as per information given by accused appellants, therefore, the accused appellants are not entitled for any relief. More so, the finding of guilt recorded by the trial court is based upon sound appreciation of entire evidence, wherein the prosecution has proved its case beyond reasonable doubt. It was thus prayed that appeals may kindly be dismissed.
After hearing the learned counsel for the parties first of all we have perused the complaint (Ex.P/5), which is said to be given by the complainant Dinesh Bafna on 07.11.2012, in which following information was given by him, which reads thus:
"lo s k eas Jheku Fkkuns kj lkgc vklhUn fo"k; & fjikVs Z ntZ djus ckcrA fuons u gS fd ejs cgukbs Z th ftrUs nz th egs rk fuoklh HkhyokMk+ "kkL=huxj eas fdjk, ds edku ij jgrs gS]a lkus s pkna h dk gky s lys dk O;kikj djrs gSA cMh+ ek=k eas lkus k pkna h o uxnh ge"s kk jgrk gSA vkt fnukda 7-11-2012 dks vklhUn eas dbZ ykxs kas ls eqykdkr gqbZ o O;kikj fd;k] budk O;kikj fpRrkSMx+ <] nos x<]+ Hkhe] vklhUn o xxa kiqj eas gkrs k gS A (12 of 25) [CRLA-452/2016] vklhUn ls HkhyokMk+ ugha igqp a s gS] o ge ifjokj okykks a ls dkbs Z lEidZ ugha gks ik jgk gAS vklhUn eas vkdj ykxs kas o O;kikfj;kas ls ckrphr dh rks rts ey th jkd a k v/;{k O;kikj e.My vklhUn us dgk fd 6-30 "kke dks ftrUs nz th egs rk ejs s ikl nqdku ds ckgj [kMs+ FkAs rc eSua s [kkus dh euqgkj fd rks dgk ejs s feyus okys dk Qkus vk x;k gS eSa muds lkFk tk jgk gaw vkSj oks vklhUn cl LV.s M dh rjQ jokuk gks x,A eq>s "kd a k gS fd ftuds lkFk x, oks vigj.k djok dj dkbs Z cMh+ ?kVuk dks vt a kc fn;k gS fjikVs Z djrk gaw dkuuq h dk;oZ kgh djkoAs Hkonh;
nhid ckiuk"
Upon perusal of aforesaid complaint, it is obvious that no information was given by Deepak Bafna (complainant) with regard to any ornaments or currency notes which were alleged to be recovered from the accused appellants. The aforesaid written report was given by Deepak Bafna at 10.00 on 07.11.2012, in which it is nowhere stated that deceased, Jitendra Mehta was having any bag containing ornaments or currency notes, but later on, after five days, another information (Ex.P/8) was given by him on 12.11.2012 at 12.10 in which following information was given, which reads thus:
"lo s k eas Jheku Fkkukf/kdkjh egkns ;
vklhUn fo"k; & izFke lp w uk fjikVs Z l[a ;k 282 fnukd a 7-11-2012 ds lEcU/k eas vko";d lp w uk nus s ckcrA egkns ; th] mijkDs r fo"k; eas fuons u gS fd ejs s }kjk ejs s th;kth ftrUs nz egs rk ds vigj.k ds lEcU/k eas fnukd a 7-11-2012 dks vkids Fkkus eas izFke lp w uk (13 of 25) [CRLA-452/2016] fjikVs Z l[a ;k 282 ls ntZ djokbZ xbZ FkhA ftlds Øe esa ejs k fuons u gS fd ejs s th;kth ftrUs nz th lkus s pkna h ds tos jkr ejs h QeZ eSllZ nhi Toys lZ HkhyokMk+ ds deh"ku cl s lh ij foØ; djus dk dk;Z djrs Fks vkSj fnukd a 7-11-2012 dks vius lkFk ejs h QeZ eSllZ nhi Toy s ZlZ ds lkus s ds tSoj fuEukul q kj vius lkFk foØ; grs q ys x, FkAs ftudk out o lp w h ¼eky dh foxr½ lkFk eas lyXa u gS vkSj bUgh tos jkr dks yqVus dh fu;r ls ejs s th;kth dk vigj.k dj gR;k dh xbZ FkhA vr% fuons u gS fd lpw h vuqlkj yVq s x, tos jkr dks "kh?kz cjken dj eq>s fnykus dh d`ik djkoAas Hkonh;
nhid ckiuk 12-11-2012"
In between 07.11.2012 to 12.11.2012, there was no information to the police whether deceased was having ornaments in huge quantity with him or currency notes so also, it is nowhere disclosed by the complainant, Deepak Bafna that ornaments were taken by the deceased from him for sale, but as per evidence on record first of all accused appellant- Roshanlal was arrested on 08.11.2012 when he was travelling in Alto Car RJ-30-CA-0383 and information Ex.P/21 with regard to verification of place from where the deceased was taken in the said car, the way in which the deceased was murdered and thereafter his dead body was thrown in a Well at Bagora. There was no information with regard to any gold ornaments but later on another information was recorded on 12.11.2012 at 11.30 AM, for recovery of currency notes and ornaments. Admittedly, till 11.30 AM on 12.11.2012 there was information to the police with regard to ornaments which is said to be belonging to the deceased. Similarly, another information was recorded u/s 27 of the Evidence Act on (14 of 25) [CRLA-452/2016] 17.11.2012 at 12.05 PM to the same effect. Vide Ex.P/30 information was recorded under Section 27 of the Evidence Act given by the accused appellant Rohsnalal on 11.11.2012 at 10.30 PM with regard to recovery that too before information given by the complaint on 12.11.2012. It is very strange that to prove the prosecution case, in all 30 documents were exhibited, out of which Ex.P/9 is the recovery memo of ornaments and currency notes upon information given by appellant Roshanlal on 11.11.2012 at 06.30 PM. The articles were recovered in the presence of two witnesses, namely, Jawaharlal and Shyamnath. During trial statements of these two witnesses were recorded as PW.9 and PW.10. PW.10- Jawaharlal turned hostile and did not support the prosecution case i.e. recovery of ornaments. In the examination- in-chief, said witness PW.10 stated that, "blds i'pkr fdlh vU; fnol dks eSa iqfyl okyk]as nhid ckQuk ds lkFk xzke lkfs u;kuk Fkkuk dkd a jky s h i gp aq kA tgka ls iqfyl us dqN cjkenxh dh Fkh ijUrq eaS chekj Fkk bl dkj.k ckgj gh cSB x;k FkkA iqfyl q s dkbs Z tkudkjh ugha gSA".
us D;k cjkenxh dh Fkh bldh e> The witness PW.9- Shyamnath stated in his cross- examination that, "--- tgka ls cjken dh ogka ls fdlh ls f"kuk[rxh ugha djkbZ vkSj nhid ckQuk gekjs lkFk eas FkkA ;g dguk lgh gS fd nhid ckQuk ds dgus ij gh iqfyl us eky tCr fd;k FkkA".
In the last line of cross-examination, witness PW.9- Shyamnath while answering the questions put to him stated as under:
"iz"u& eqyfte ls D;k cjken fd;k ;g uD"ks ekSds eas vfa dr gS ;k ugh\a mRrj& eq>s ekyew ugha gSA (15 of 25) [CRLA-452/2016] iz"u& fdrus vkbZVe o fdrus oth Fks ;g QnZ cjkenxh ij fy[kk gS ;k u gh\ mRrj& ;g eq>s irk ughAa ;g dguk lgh gS fd eS flQZ egs rk th ds ;gka dke djrk gaw blfy;s x;k FkkA eSua s gLrk{kj iqfyl okys ds dgus ls fd;s FkAs ".
We have perused the statements of investigating officer PW.12- Laxman Ram Bishnoi. In the cross-examination, PW.12 stated as under:
"fnukd a 12-11-12 dks ifjoknh nhid us eq>s nwljh fjikVs Z izn"kZ ih&8 eas vius ftu tos jkr dks e`Rrd dks nus k crk;k Fkk mlds ckjs eas iN w s ij ifjoknh us crk;k fd og bl id z kj ds lkus s pkna h ds tos jkr dks gkys ly s dk O;kikj djrk gS ftlds rgr mlus ;s tos jkr izkIr dj e`Rrd dks lkiaS s FkAs eSua s ifjoknh nhid ckQuk ls bl vk"k; dk dkbs Z nLrkot s h izek.k ugha fy;k ftlls ;s izdV gkrs k gks fd og klus s pkna h dk O;olk; cMs+ Lrj ij djrk gkAs vuql/a kku eas ejs s lkeus ,l s h dkbs Z ckr lkeus ugha vkbZ fd ;g izdV gkrs k gks ifjoknh nhid rFkk e`Rrd ftrUs nz ds e/; lkus s pkna h ds O;olk; dks yd s j fd l h i d z kj dkbs Z fookn gqvk gk]s e`Rrd dh ifRu e`Rrd ds thoudky eas gh fdlh vU; iq:'k ds lkFk jgus yx xbZ gkAs ?kVuk ds fnu e`Rrd ftrUs nz egs rk lqcg vius ?kj ls jokuk gqvk rc mlds ikl D;k D;k tos jkr Fk]s mleas ls fdrus tos jkr fdu O;kikfj;ks dks cps s rFkk mlds ,ot eas fdruh jkf"k izkIr dh Fkh] blds lEcU/k eas vklhUn ds ftu O;kikfj;kas us eq>s crk;k muds c;ku y[s kc) fd, gS tks i=koyh eas "kkfey gSA ?kVuk ds fnu e`Rrd ds ikl tos jkr gkus ]s vklhUn eas yus nsu djus cckr xokg rstey jkd a k ds c;ku esjs }kjk fy, x, gSA bl c;ku ds vykok eSua s ,slk dkbs Z nLrkot s h c;ku rts ey jkd a k o vU; fdlh O;kikjh ls izkIr ugha fd;k tks ;g izdV djrk gks fd ?kVuk ds fnu e`Rrd ftrUs nz ds ikl D;k D;k tos jkr Fk]s o mueas ls fdrus tos jkr [kjhns o cp s s FkAs ;g dguk xyr gS fd vklhUn ds O;kikjh rt s ey jkda k o ykny w ky xk[s k: e`Rrd ds fudV fj"rns kj gkAs eSua s vkjkis h enuyky dh fu"kkungs h ds vk/kkj ij tks tos jkr cjken fd, Fks mldh f"kuk[r ifjoknh nhid ckQuk ls djokbZ FkhA euaS s ifjoknh }kjk cjken tos jkr dks viuk gkus k crkus ds vk/kkj ij ifjoknh (16 of 25) [CRLA-452/2016] dk gkus k ekuk FkkA rFkk ifjoknh us os tos jkr fdlh fpUg ds vk/kkj ij viuk gkus k ekuk FkkA QnZ cjkenxh izn"kZ ih&11 eas ,ls s fdlh fpUg fo"k's k dks mYy[s k ugha fd;k x;k gS ftlds vk/kkj ij ifjoknh us cjken tos jkr dks viuk gkus k dgk gkAs vkjkis h enuyky ls cjkenxh ds oDr pfaw d ifjoknh nhid ckQuk ekStnw Fkk ,oa mlus vius tos jkr dks dk;oZ kgh ds nkSjku igpku fy;k Fkk] bl dkj.k euS s bu tos jkr dh i`Fkd ls dk;Zokgh f"kuk[rxh fdlh eftLVªsV ls ugha djokbZ FkhA QnZ cjkenxh LFky uD"kk ekSdk inz "kZ ih&12 eas bl vk"k; dk mYy[s k ugha gS fd ftl edku ls tos jkr cjken fd, x, Fks ml edku ij rkyk yxk Fkk vFkok [kqyk Fkk] ml edku eas dkSu dkSu jgrs Fk]s cjkenxh ds oDr edku eas dkSu dkSu O;fDr ekStnw FkAs QnZ cjkenxh uD"kk ekdS k izn"kZ ih&12 dk edku vkjkis enu yky ds LokfeRo dk gh gk]s blds lEcU/k eas fdlh izdkj dk dkbs Z s h izek.k ;k vkl ikl ds xokgkas ds c;ku ugha fy;s FkAs ".
nLrkot Upon perusal of statements of two witnesses of recovery and the investigating officer PW.12- Laxman Ram, it is abundantly clear that in the FIR submitted on 07.11.2012, no information was given by the complainant with regard to huge quantity of gold ornaments and currency notes given by him to the deceased. Later on, on 12.11.2012 during investigation another information Ex.P/8 was submitted on 12.11.2012 by him before the investigating officer (PW.12- Laxman Ram Bishnoi) but no bills or any identification of ornaments were disclosed by him; and as per statements of the investigating officer and recovery witnesses, at the time of recovery, complainant Dinesh Bafna was present and ornaments were identified by him at the time of recovery itself. It is also admitted position that no documentary evidence taken on record by the investigating officer to prove that complainant was doing the business of selling jewellery, and recovered ornaments were not even put before the Magistrate for identification. Out of (17 of 25) [CRLA-452/2016] two witness of recovery, Shyamnath (PW.9) and Jawaharlal (PW.10), witness- Jawaharlal turned hostile and Shyamnath (PW.9) informed that ornaments were recovered upon asking by Dinesh Bafna, and further said that he was working with deceased Jitendra Mehta, therefore, he went there and put his signatures upon asking by the police.
Upon assessment of entire evidence, we are of the opinion that no information with regard to ornaments being given by the complainant, Deepak Bafna, to the deceased, in his first information on 07.11.2012, but subsequently the fact of having ornaments was disclosed in second report on 12.11.2012. Therefore, whole prosecution case become doubtful.
It also also emerged from the statements witnesses of recovery viz. PW.9- Shyamnath and PW.10-, Jawaharlal that prosecution has failed to prove the recovery of ornaments beyond reasonable doubt. Admittedly, the recovered ornaments and currency notes were not put for identification in accordance with law because the recoveries were made in the presence of complainant Deepak Bafna and the ornaments were identified by him without any disclosure of identification by him, therefore, the entire case based upon recovery of ornaments and currency notes at the instance of accused appellant, has not been proved by the prosecution beyond reasonable doubt.
As per basic principal of law, the complainant is required to give complete information, which he was having at the time of submitting FIR for every crime including abduction, murder and (18 of 25) [CRLA-452/2016] robbery. But in this case, no such information or fact was disclosed by the complainant in the report filed by him on 07.11.2012, and after five days another information was given by him that too without any documentary evidence with respect to ornaments, which is relied upon by the investigating officer. In our opinion, it was necessary for the investigating officer to take documentary evidence with regard to ownership of the ornaments of complainant Deepak Bafa, but it has not been taken by him and further the complainant himself remain present at the time of recovery of ornaments and currency notes. Admittedly, the ornaments were not put for identification before the Magistrate as per law and more so, just after filing of charge sheet and before framing charge, all the ornaments and currency notes were given to the complainant Deepak Bafna, on "Supurdginama", which was subject matter of trial.
In our opinion, it is a case in which the prosecution has miserably failed to prove recovery of ornaments, so also, failed to follow the procedure laid down for recovery of ornaments and identification of the ornaments. The trial court has committed gross error while handing over the ornaments and currency on "Supurdginama" to the complainant before framing charges, therefore, we are of the opinion that the trial court has miserably failed to appreciate the evidence and erroneously held accused appellant guilty.
With regard to recovery of dead body at the instance of accused appellant- Roshanlal, we have perused the information (19 of 25) [CRLA-452/2016] (Ex.P/21), which is alleged to be given by accused appellant Roshanlal, after his arrest for recovery of dead body. In the information (Ex.P/21) following information was given by appellant Roshanlal with regard to place (Well), in which dead body of Jitendra Mehta was thrown.
" t Sj fgjklr vfHk;qDr Jh jk"s kuyky firk nos hyky xqtZj us eq> IO dks LoPs Nk iow Zd lp w uk nh fd **eSua s o jkeyky xqtZj fu- eknMh+ o enu xqtZj fu- lkus h;kuk us ftl LFkku ls ftrUs nz egs rk dks esjh dkj No.RJ-30-CA-0383 eas fcBk;k o vkxs ys tkdj gR;k dj nh o yk"k dks ckxkSj ds ikl ,d dq, eas Mky nh tks rhukas LFkku eSa py dj crk;k pkgrk gAw "
We have perused the "Panchayatnama" of the dead body, which was prepared after recovering the dead body from the Well. In the "Panchayatnama" (Ex.P/4), following place of recovery was incorporated, which reads under:
"mijkDs rekSrfcjku ipku ds le{k e`Rrd Jh ftrUs nz flga firk ysgj flga egs rk dk ipa k;rukek ckoykl frjk;k jk;ijq jkMs ds ikl bVaZ HkV~Vs Jh fd"kuyky ds dq, eas fudky dj "ko dks j[kk x;k gSA tks fuEu izdkj ls gS -----"
The "Panchayatnama" of the dead body was prepared in the presence of five persons, viz. Balulal, Sunil Shrimal, Devilal, Tejmal and Ladulal. Out of these five persons, only two witnesses were produced before the court as PW.1- Tejmal and PW.3- Ladulal.
We have perused the statements of PW.-3 Ladulal. The said witness nowhere stated that "Panchayatnama" (Ex.P/4) was prepared in his presence and the only statement given by him is (20 of 25) [CRLA-452/2016] that the dead body was handed over after postmortem vide Ex.P/7 in the hospital.
We have perused the statements of Tejmal (PW.1). Upon perusal of statement of this witness, it is revealed that this witness nowhere stated that dead body was recovered from the Well and the only statement which he gave is that police prepared "Panchayatnama" (Ex.P/4) of dead body but nowhere stated that from where the dead body was recovered. In the cross- examination this witness said that, "I put my signatures upon 5-7 documents at police station." Meaning thereby, there is serious doubt about the place of recovery of dead body because it has not been proved beyond reasonable doubt by the prosecution. In our opinion, recovery of dead body at the instance of accused appellant, Roshanlal, is seriously doubtful because as per settled principle of law, if prosecution case is based upon circumstantial evidence, then the prosecution is required to prove its case beyond reasonable doubt but in this case, the prosecution has failed to prove recovery of ornaments, currency notes beyond reasonable doubt. The prosecution has adopted a unique practice in this matter where complainant has been kept ready to identify the articles at the place of recovery/incident itself and no endeavour has been made to arrange test identification before the Magistrate. Suffice it to state that the alleged recovery does not connect the accused appellants with the crime.
It is also required to be observed that out of two witnesses of recovery, PW.10- Jawaharlal turned hostile and there is no (21 of 25) [CRLA-452/2016] more second fact which shows that witness PW.9- Shyamnath, a Motbir of recovery memo, happens to be employee of the complainant has categorically admitted in his statements that alleged recovery of ornaments was made at the instance of complainant Deepak Bafna. It is also worthwhile to observe that the recovered articles were given on "Supurdgi" before framing charges by the trial court, we are unable to find any plausible reason or cause, as to why the trial court hurriedly returned the ornaments and currency to the complainant, who has not even submitted any documentary evidence for claiming his ownership over the ornaments during investigation, as per statements of the investigating officer. The entire prosecution case is seriously doubtful.
The Hon'ble Apex Court in the case of Mani Vs. State of Tamilnadu reported in 2008(2) CJ (SC) Cri. 523 held that evidentiary value of recovery is a weak kind of evidence and that cannot be relied upon so as to hold accused appellants guilty. The para no.21 of the said judgment is as follows:
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us (22 of 25) [CRLA-452/2016] anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go.
In case of Rami Vs. State of Rajasthan reported in 2009(2) CJ (Cri.) Raj., 667, the following adjudication is made by this Court that on the basis of recovery of ornament of deceased without any identification, the conviction cannot be based. Paras nos.10 to 14 of the said judgment are relevant, which reads as under:
"10. These opinion clearly indicate that dead body cannot float on surface at least before 24 hours. It is beyond imagination that dead body of 5 years' girl will float on surface within an hour of drowning. This alone circumstances is sufficient to discard whole prosecution story.
11. Thus, it becomes clear that Munna was not pushed by the accused on 18.8.1981 at about 8 a.m. and in such circumstances, it can very well be said that Paras was also not pushed in the well by the accused on that day at that time. Whole prosecution story is nothing but full of concoctions.
12. As far recovery of ornaments and their identification is concerned, the learned Trial Court has rightly not placed reliance on recovery of articles. PW/2 Roshan has admitted in his cross examination that Sarpanch asked Madhunath to take care of recovered ornaments. He admitted that he had knowledge where the ornaments were lying before the SHO came on the spot. PW/9 Sajjan Singh who was Sarpanch of village karsana has also admitted in cross examination that he was aware about the ornaments (23 of 25) [CRLA-452/2016] before police reached on the spot and he had deputed Madhunath to take care of ornaments. Identification memo also reveals that requisite articles were not mixed for identification purposes. Hence, recovery of articles on the information and at the instance of accused and their identification cannot be believed and this recovery does not link the accused with the crime, specially when recovered articles contained some more articles which were not of Paras.
13. In the light of the aforesaid discussion, it becomes clear that prosecution has failed to prove charges against accused and lower court has committed error in placing reliance on the statement of Paras and convicting the accused of the aforesaid charges.
14. Consequently, the appeal of the appellant Rami is accepted and judgment dated 18.8.1983 passed by learned Sessions Judge Pratapgarh camp Chittorgarh, by which he convicted the accused appellant under Sec. 302, 307 and 403 IPC is set aside. The accused appellant is on bail. Her bail bond stands cancelled and she need not to surrender. "
In the case of Varun Choudhary Vs. State of Rajasthan reported in 2012(2) CJ (Cri.) (SC) 352, the Hon'ble Supreme Court while considering evidence to hold that in absence of any evidence of identification and upon the fact that prosecution has failed to establish the evidence to complete the evidence which would lead to a conclusion that accused was the only person who could have commit offence none-else, no conviction can be based. Paras nos.21, 24 and 25 of the said judgment are relevant, which reads as under:
"(21) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution.
Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said (24 of 25) [CRLA-452/2016] evidence could not have been relied upon by the courts below for passing the order of conviction.
(24) It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath vs. State of Karnataka, (2010)8 SCC 593, para 24, it has been stated that "in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved............. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".
(25) In another case of C. Chenga Reddy v. State of A.P., reported in (1996) 10 SCC 193, this Court has held that "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(25 of 25) [CRLA-452/2016] In view of above discussion, we are of the onion that neither recovery of dead body at the instance of accused appellant- Roshanlal is proved beyond reasonable doubt, nor prosecution has proved its case beyond reasonable doubt on the basis of so-called recovery of ornaments and currency notes because the same were not put for identification in accordance with law, therefore, accused appellants are entitled for benefit of doubt.
Consequently, both these appeals are allowed and the judgment dated 12th May, 2016 passed by learned Additional Sessions Judge, Gulabpura, District Bhilwara (Trial Court) in Session Case No.3/2013, whereby the appellants were convicted and sentenced for offences under Sections 302/34, 397/34, 364/34 & 201/34 of IPC, is hereby quashed. The accused appellants be set at liberty unless required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- each 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 Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-