Rajasthan High Court - Jodhpur
Karni Singh vs State on 28 February, 2020
Bench: Sandeep Mehta, Abhay Chaturvedi
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 484/2016
Karni Singh S/o Mohan Singh, by caste Rajput, R/o Asasar, P.S.
Sardarshahar, District Churu
(At present lodged in Central Jail, Bikaner)
----Appellant
Versus
The State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 522/2016
Sarjeet Singh S/o Mukund Singh, by caste Oad, R/o Guru Ki
Nagri T.V. Tower, Near Railway Line House No.24155 Bhatinda
(Punjab). At present R/o Bus Stand Jamsar, District Bikaner
(Raj.)
----Appellant
Versus
State of Rajasthan through its P.P.
----Respondent
For Appellant(s) : Mr. S.K. Verma
Mr. D.S. Gharsana
For Respondent(s) : Mr. Anil Joshi, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Judgment
Date of pronouncement : 28/02/2020
Judgment reserved on : 21/08/2019
BY THE COURT : PER HON'BLE MEHTA, J.
1. These two appeals have been preferred by the appellants Karni Singh and Sarjeet Singh respectively for assailing the (Downloaded on 28/02/2020 at 08:48:59 PM) (2 of 21) [CRLA-484/2016] judgment dated 30.05.2016 passed by the learned Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Cases), Bikaner in Sessions Case No.23/2010, whereby the appellants were convicted and sentenced as below :-
Names of the Offence for Sentence awarded
appellants which
convicted
Karni Singh Section 302 IPC Imprisonment for life
alongwith a fine of
Rs.10,000/- and in default
of payment of fine,
additional simple
imprisonment of three
months
Section 394 IPC Rigorous imprisonment of
five years alongwith a fine
of Rs.10,000 and in default
of payment of fine,
additional simple
imprisonment of three
months
Section 397 IPC Rigorous imprisonment of
seven years
Sarjeet Singh Section 411 IPC Simple imprisonment of six
months alongwith a fine of
Rs.5,000 and in default of
payment of fine, additional
simple imprisonment of 15
days
All the substantive sentences were ordered to run
concurrently.
2. Being aggrieved of their conviction and the sentences awarded to them, the appellants Karni Singh and Sarjeet Singh have preferred these two appeals under Section 374 (2) CrPC. As the appeals arise out of a single judgment, they are being heard and decided together.
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3. Brief facts relevant and essential for disposal of the appeals are noted hereinbelow. The complainant Taruram Nayak (P.W.1) approached the Police Station Bichhwal, District Bikaner on 17.03.2010 at 1.00 p.m. and submitted a written report (Ex.P/1) alleging inter alia that his uncle Magharam Nayak was a shepherd by profession. On 16.03.2010 in the morning at about 9 o'clock he went from the village for grazing the goats. He was having about 60 to 70 head of goats, out of which, 35 belonged to the complainant. Magharam did not return home in the evening after grazing the goats, on which, the complainant became worried and in the next morning, i.e. on 17.03.2010, he went to Rohi of Village Kanasar to look out for Magharam and his goats. A search was made near the field of Prithvi Singh and the 44 puliya, but it did not prove fruitful. When the complainant reached the Village Kanasar, Arjun Singh Rajput (P.W.7) told him that his uncle's dead body was lying underneath the shrubs in the field of Mohabbat Singh. Arjun Singh also told the complainant that the signs of violence and dragging of the dead body were visible at the place of incident. On receiving this information, the complainant proceeded to the spot and found that what Arjun Singh had stated was true. By looking at the Magharam's dead body, he realized that someone had killed him by giving blows on his head. The goats sent to graze with Magharam had strayed and were found near the Village Khara. It was, thus, alleged that his uncle Magharam had been murdered by some unknown person in the evening at about 4 to 5 o'clock on 16.03.2010. (Downloaded on 28/02/2020 at 08:48:59 PM)
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4. On the basis of the aforesaid report, an FIR No.52/2010 (Ex.P/2) came to be registered at the Police Station Bichhwal, Bikaner for the offence under Section 302 IPC.
5. The initial investigation was conducted by Ishwar Prasad (P.W.14), SHO, Police Station Bichhwal, who inspected the place of incident and prepared the following documents :-
Site inspection plan - Ex.P/3
Site inspection memo - Ex.P/3A
Fard Surat Hal Lash - Ex.P/4
Panchnama Lash - Ex.P/5
Seizure memo of blood stained soil - Ex.P/6, P/8
Seizure memo of plain soil - Ex.P/7, P/9
Seizure memo of pair shoes of Magharam - Ex.P/10
Seizure memo of matchbox and
two plastic beads of garland - Ex.P/11
Seizure memo of towel (Gamchha) of Magharam- Ex.P/12
Seizure memo of two foot impression moulds
of unknown person - Ex.P/13
Seizure memo of shirt and a dhoti of deceased- Ex.P/15 The dead body of Magharam was subjected to postmortem at the hands of a medical board constituted at the PBM, Hospital, Bikaner, which issued the postmortem report (Ex.P/24) opining that the cause of death of Magharam was coma due to antemortem head injury, caused by sharp- edged weapon; sufficient in the ordinary course of nature to cause death. The body was then handed over to the complainant for cremation (Ex.P/14).
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6. The accused Karni Singh was arrested on 21.03.2010 vide arrest memo (Ex.P/22) and the accused Sarjeet Singh was arrested on 23.03.2010 vide arrest memo (Ex.P/23) in presence of Brahmprakash, A.S.I. and Virendra Singh, Constable, posted at the Police Station Bichhwal, Bikaner. The Investigating Officer Ishwar Prasad also proceeded there and recorded the statement of various witnesses.
7. As the offence under Section 3 (2)(v) of the SC/ST Act was made out, Ishwar Prasad handed over further investigation to Sarjeet Singh (P.W.16), C.O., Circle Sadar Bikaner, who verified the documents prepared by Ishwar Singh. He allegedly recovered a bamboo stick at the instance of accused Karni Singh which was seized vide seizure memo (Ex.P/16). He also claims to have recovered and seized an iron axe at the instance of accused Karni Singh vide seizure memo (Ex.P/17). The Investigating Officer further proceeded to recover 25 goat skins from the possession of the accused Sarjeet Singh and seized the same vide seizure memo (Ex.P/20).
8. After concluding the investigation, the Investigating Officer proceeded to file a charge-sheet in the Court of learned Chief Judicial Magistrate, Bikaner against the accused Karni Singh for the offences under Sections 302, 394, 397 IPC and Section 3 (2) (v) of the SC/ST Act against the accused Sarjeet Singh for the offences under Sections 411 and 429 (Downloaded on 28/02/2020 at 08:48:59 PM) (6 of 21) [CRLA-484/2016] IPC. The case was then committed to the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Court, Bikaner, for trial, who framed charges against the accused in the same terms. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 62 documents to prove its case.
9. It may be stated here that during the course of investigation, the blood stained and control articles seized from the place of incident, moulds of shoe impression of unknown person seized from the spot and the specimen food-moulds of the shoes worn by the accused Karni Singh were forwarded to the FSL for analysis and analysis reports were received. The FSL report of the foot-moulds was exhibited as (Ex.P/61), whereas the FSL Report of the blood-stained and control articles was exhibited as (Ex.P/62).
10. The accused, upon being questioned under Section 313 CrPC and when confronted with the prosecution allegations, denied the same and claimed to be innocent. 6 documents were exhibited, but no oral evidence was led in defence.
11. Upon hearing and considering the arguments advanced by the prosecution and by the defence and after appreciating (Downloaded on 28/02/2020 at 08:48:59 PM) (7 of 21) [CRLA-484/2016] the evidence available on record, the learned special court convicted and sentenced the accused appellants as above.
12. Mr. S.K. Verma, learned counsel representing the appellant Karni Singh and Mr. D.S. Gharsana, learned counsel representing the appellant Sarjeet Singh, vehemently and fervently urged that the impugned judgment is bad in the facts as well as in law. There is no legal evidence worth the name on the entire record, which can be considered sufficient to connect the appellants with the alleged offence. There was no material with the Investigating Officer on the basis whereof, he could have arrested the accused- appellants. The so-called motive of looting of the goats attributed to the accused Karni Singh for murder of deceased is falsified from the very fact mentioned in the FIR that the goats were found near the Village Khara on the next day. It was further contended that evidence of the so-called witness of the circumstance of last seen, namely, Kaluram (P.W.3) is totally unreliable because he simply stated that he had seen Magharam and Karni Singh going together for grazing goats at about 12 o'clock with sticks in their hands. It was contended that the witness had reached the place of incident on 17.03.2010 before the report came to be filed with the police, yet he did not divulge this important fact to the police that he had seen the deceased and the accused Karni Singh going together on 16.03.2010. As per the learned counsel, the witness stated that he used to go for his labour job, the (Downloaded on 28/02/2020 at 08:48:59 PM) (8 of 21) [CRLA-484/2016] timing whereof was from 8 o'clock in the morning till 5 o'clock in the evening. Thus, as per Mr. Verma, the possibility of this witness having seen the accused Karni Singh proceeding with Magharam at about 12 o'clock on 16.03.2010 is virtually non-existent. Mr. Verma further submitted that Sattar Khan (P.W.5) stated in his cross- examination that Kaluram told him that the dead body of Magharam was lying in the field of Mohabbat Singh and thus, Kaluram was conscious of the murder of Magharam, yet he did not disclose to anyone that he had lastly seen the accused Karni Singh in the company of deceased Magharam on the day of the incident. Mr. Verma submitted in arguendo that that even if the statement of Kaluram is accepted for the sake of argument, then too it is not a conclusive proof of the fact that the accused and the deceased were seen in each other's company soon before Magharam was murdered. As per Mr. Verma, possibility of the deceased and the accused parting company and having proceeded to their respective destinations after they were allegedly seen together by Kaluram cannot be ruled out and thus, his contention was that the circumstance of last seen does not lend any credibility to the prosecution theory that the accused-appellant was solely responsible for homicidal death of Magharam. Mr. Verma further contended that the trial court committed grave error while appreciating the evidence and holding that the prosecution proved the factum of recoveries of the blood-stained lathi and the blood-stained Kulhadi at the instance of the accused Karni Singh. His (Downloaded on 28/02/2020 at 08:48:59 PM) (9 of 21) [CRLA-484/2016] contention was that the Investigating Officer did not prove the informations allegedly recorded at the instance of the accused as required by law because the verbatim language of the informations allegedly given by the accused under Section 27 of the Evidence Act (which led to the recoveries) was not elaborately stated by the Investigating Officer in his evidence and hence, the information lose credibility and the recoveries made in furtherance thereof cannot be held proved. He further submitted that only police personnel were associated as motbirs while effecting the recoveries and as such also, the recoveries are tainted. Mr. Verma further submitted that the recovery of the goat skins effected by the Investigating Officer has also not been proved as per law and as such, the same has to be discarded. Mr. Verma further submitted that the prosecution theory regarding the collection of the foot-moulds of the shoes worn by the accused, which were later on compared with the suspect's foot-moulds found at the place of incident has also not been proved as per law and beyond all manner of doubt.
13. Mr. D.S. Gharsana, learned counsel representing the appellant Sarjeet Singh, urged that there is no material whatsoever available on record of the case to establish that the goat skins recovered from the premises of the accused were of the goats, which were being grazed by the deceased Magharam and were allegedly stolen after murdering him.
He submitted that the goat skins had no particular
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identifying marks. The first informant Taruram clearly
stated in the report that the goats returned back to the village a day after the dead body of Magharam was recovered. Thus, as per Mr. Gharsana, there is nothing on record, which can be considered sufficient to establish that the goat skins allegedgly recovered from the premises of accused Sarjeet Singh were connected with the offence in any manner. Mr. Gharsana further submitted that admittedly, the accused Sarjeet is involved in the business of buying and selling skins of goats and as such, in absence of any evidence to show that the skins recovered from his premises were those of the goats allegedly looted from Magharam, no inference can be drawn that he received the skins knowing them to be stolen. On these grounds, leaned counsel craved acceptance of the appeals and sought acquittal of the accused appellants.
14. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the prosecution has proved all the circumstances invariably pointing towards the guilt of the accused by clinching, cogent and convincing evidence. The witness Kaluram gave positive evidence establishing the fact that the accused Karni Singh was lastly seen walking besides Magharam and the latter who was not seen alive thereafter. The incriminating recoveries of the weapons and the fact that the foot-moulds of the suspect (Downloaded on 28/02/2020 at 08:48:59 PM) (11 of 21) [CRLA-484/2016] found at the place of incident matched with the foot-moulds of the shoes seized from the person of Karni Singh and the circumstance of recovery of the goat skins effected from the premises of Sarjeet Singh in furtherance of the information provided by the accused to the Investigating Officer under Section 27 of the Evidence Act are conclusive and sufficient to establish their guilt. Also, regarding the appeal of Sarjeet Singh, the contention of the learned Public Prosecutor was that he failed to offer any plausible explanation for being in possession of the goat skins, which were removed from the goats being grazed by Magharam and which Taruram identified to be of his goats and as such, learned Public Prosecutor's contention was that the learned trial court was absolutely justified in convicting and sentencing the appellants by the impugned judgment. He sought dismissal of the appeal on the strength of these submissions.
15. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. It cannot be disputed that there is no eye-witness to the incident and the entire prosecution case is based wholly on circumstantial evidence. The prosecution portrayed the circumstances of last seen and motive of recoveries so as to make an endeavour of bringing home the guilt of the accused.
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16. Evidence of the deceased being lastly seen in the company of the accused Karni Singh was deposed by Kaluram (P.W.3). On a threadbare appreciation of the statement of this witness, it is clear that he claimed to have seen the deceased Magharam and the accused Karni Singh going together with the herds of goats. The witness claimed that he came to know of the murder of Magharam 3 to 4 days after the incident and thereafter, he came to the village and gave the statement to this effect to the police. He also stood as a motbir in the recovery of the goat skins. In his cross- examination, he admitted that he was working as a labourer in the factories and his duty hours were 8 o'clock in the morning to 5 o'clock in the evening. The witness resiled from certain portions of his police statement (Ex.D/2). In the portion marked 'A' to 'B' of his police statement, it is recorded that he heard in the village on 17.03.2010 that Magharam had been murdered by some unknown person in the field of Mohabbat Singh by inflicting injuries on his head. This significant omission elicited from the previous statement of the witness brings his testimony under a severe cloud of doubt. The confronted portion of his police statement (Ex.D/2) clearly indicates that the witness came to know on 17.03.2010 itself that Magharam had been killed. If this was so, natural human conduct demanded that the witness should have immediately divulged to the family members of the deceased as well as to the police that he had seen the deceased and the accused going together. The witness tried to modulate the facts in his evidence claiming that he came (Downloaded on 28/02/2020 at 08:48:59 PM) (13 of 21) [CRLA-484/2016] back to the village after 3 days. However, this fact is not mentioned in his police statement (Ex.D/2), with which, he was confronted during his cross-examination. Thus, we have no hesitation in holding that the witness has been cooked up to give evidence of last seen. He was purely a chance witness and his statement is neither trustworthy nor reliable. Thus, the circumstance of last seen relied upon by the prosecution deserves to be discarded.
17. The next circumstance, which the prosecution alleged against the accused Karni Singh was that of motive, i.e. the looting of the goats being grazed by Magharam. In this regard, we have to remain conscious of the testimony of Taruram (P.W.1) and more particularly of the fact mentioned by him in the FIR that the goats, which Magharam had taken for grazing, were recovered near Village Khara on the day next to the recovery of the dead body, i.e. on 17.03.2010, which by itself is sufficient to satisfy the court that the prosecution theory regarding the goats having been looted, is nothing but a figment of imagination. The next circumstance, which the prosecution relied upon against the accused Karni Singh, was that of the recovery of the blood- stained weapons. In this regard, we would like to refer to the statement of the Investigating Officer Sarjeet Singh (P.W.16). Being conscious of the fact that the trial court placed implicit reliance on his testimony, the examination-in- chief of the Investigating Officer, who claimed to have (Downloaded on 28/02/2020 at 08:48:59 PM) (14 of 21) [CRLA-484/2016] effected recoveries is reproduced in verbatim for the sake of convenience :
"fn- 23-3-2010 dks o`rkf/kdkjh o`r lnj chdkusj ds in ij rSukr FkkA ml jkst eqdnek ua- 52@10 /kkjk 302 vkbZihlh dh i=koyh vfxze vuqla/kku gsrq eq>s izkIr gqbZ FkhA nkSjkus vuqla/kku eSus Fkkukf/kdkjh dks lkFk ysdj ?kVukLFky dks ns[kk o izn"kZ ih 3 uD"kkekSdk dks eSaus izekf.kr fd;k ftl ij lh ls Mh esjs gLrk{kj gS o gkykr ekSdk ?kVukLFky izn"kZ ih 3, gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZlqjr yk"k e`rd e?kkjke izn"kZ ih 4 gS ftl ij b ls ,Q esjs gLrk{kj gSA QnZ iapk;rukek e`rd e?kkjke izn"kZ ih 5 gS ftl ij th ls ,p esjs gLrk{kj gSA QnZ tCrh [kqu vkyqnk feV~Vh ?kVukLFky izn"kZ ih 6 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh lknk feV~Vh tks fd ?kVukLFky ls yh tks izn"kZ ih 7 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh [kqyvkyqnk feV~Vh izn"kZ ih 8 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh"kqnk feV~Vh ?kVukLFky izn"kZ ih9 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh ,d tksM+h tqrs e`rd e?kkjke ?kVukLFky izn"kZ ih 10 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh ,d ekfpl fMCch nks IykfLVd e.kh;k VqdM+s ?kVukLFky izn"kZ ih 11 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh ,d rkSfy;k e`rd e?kkjke ?kVukLFky izn"kZ ih 12 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ tCrh nks eksYM tqrks ds fy;s x;s tks izn"kZ ih 13 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ cjkenxh ,d deht e`rd e?kkjke izn"kZ ih 15 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ cjkenxh ,d ckal dh ykBh MaMk eqyfte dj.khflag izn"kZ ih 16 gS ftl ij , ls ch esjs gLrk{kj gS o ,Dl o okbZ LFkku ij xokgksa ds vaxwBk fu"kkuh gS o eqyfte dj.khflag dk tsM LFkku ij vaxqBk fu"kkuh gS o ckal ykBh ysdj lhyeksgj fd;k ftl lhy dk vadu ,Dl 1 LFkku ij gSA QnZ cjkenxh ,d yksgs dh dqYgkM+h eqyfte dj.khflag izn"kZ ih 17 gS ftl ij , ls ch esjs gLrk{kj gS o ,Dl o okbZ LFkku ij xokgku ds vaxqBk fu"kkuh gS o eqyfte dj.khflag dk tsM LFkku ij vaxqBk fu"kkuh gS o dqYgkMh dks ysdj lhyeksgj fd;k ftl lhy dk uequk vafdr gS tks izn"kZ ih17 ij ,Dl1 LFkku ij vafdr gSA uD"kkekSdk cjkenxh LFky eqyfte dj.khflag izn"kZ ih18 gS ftl ij , ls ch esjs gLrk{kj gS o ,Dl o okbZ LFkku ij ekSrchjku ds vaxqBk fu"kkuh gS o tsM LFkku ij eqyfte dj.khflag dh vaxqBk fu"kkuh gS o gkykr ekSdk cjkenxh ,d ckal ykBh o ,d dqYgkM+h izn"kZ ih 18, gS ftl ij , ls ch esjs gLrk{kj gSA rLnhd uD"kkekSdk eqyfte dj.khflag izn"kZ ih 19 gS ftl ij , ls ch esjs gLrk{kj gS ,Dl o okbZ LFkku ij ekSrchjku ds (Downloaded on 28/02/2020 at 08:48:59 PM) (15 of 21) [CRLA-484/2016] vaxqBkfu"kkuh gS o tsM LFkku ij eqyfte dj.khflag dh vaxqBkfu"kkuh gSA QnZ tCrh dqy 25 [kkys e`r cdjk o cdjh;ksa dh eqyfte ljthrflag ls cjken dh tks izn"kZ ih 20 gS ftl ij , ls ch esjs gLrk{kj gS o tsM LFkku ij eqyfte ljthrflag dk vaxqBkfu"kkuh gS o ,Dl okbZ LFkku ij ekSrchjku dh vaxqBkfu"kkuh gSA uD"kkekSdk cjkenLFky [kkys izn"kZ ih 21 gS ftl ij , ls ch esjs gLrk{kj gS o ,Dl LFkku ij eqyfte ljthrflag dh vaxqBkfu"kkuh gS o okbZ o tsM LFkku ekSrchjku dh vaxqBkfu"kkuh gSA QnZ fxjQ~rkjh o tek ryk"kh eqyfte ljthrflag izn"kZ ih 23 gS ftl ij , ls ch o lh ls Mh ekSrchjku ds o bl ls ,Q esjs gLrk{kj gS o ,Dl LFkku ij ljthrflag dh vaxqBkfu"kkuh gSA iksLVekVZe fjiksVZ e`rd e?kkjke dk gS tks izn"kZ ih 24 gS ftl ij th ls ,p esjs gLrk{kj gS o vkbZ ls ts "kkfey i=koyh dk i`'Bkadu gSA QnZ tCrh nks eksYM nks tqrk lfgr eqyfte dj.khflag izn"kZ ih 25 gS ftl ij , ls ch o lh ls Mh ekSrchjku ds o b ls ,Q esjs gLrk{kj gS ,Dl LFkku ij eqyfte dj.khflag dh vaxqBkfu"kkuh gS o okbZ LFkku ij uequklhy dk vadu gSA QnZ tCrh ,d tksMh tqrk iqjkuk eqyfte dj.khflag izn"kZ ih 26 gS ftl ij , ls ch o lh ls Mh ekSrchjku ds gLrk{kj gS o b ls ,Q esjs gLrk{kj gS o eqyfte dj.khflag dk ,Dl LFkku ij vaxqBkfu"kkuh gS o okbZ LFkku ij uequklhy dk vadu gSA ,Q,l,y dh jlhn izn"kZ ih 28 gSS ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh "kkfey i=koyh dk i`'Bkadu gSA ,Q,l,y dh jlhn izn"kZ ih 30 gS ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh "kkfey i=koyh dk vadu gSA QksVks tks ?kVukLFky ds [ksps x;s Fks tks izn"kZ ih 31 ls 54 gSA nkSjkus vuqla/kku xokg rk:jke] dkyqjke] cnzh] lrkj[kkW] vejkjke o xokg vtqZuflag ds c;ku Fkkukf/kdkjh ds }kjk fy;s x;s o esjs }kjk izekf.kr fd;s x;sA nkSjkus vuqla/kku eSus xokg ";kelqUnj] v"kksddqekj] jkedsj ds c;ku ys[kc) fd;s tSlk xokgku us dgk oSlk gh fy[kk FkkA QnZ bryk 27 o 28 eqyfte dj.khfalg izn"kZ ih 55 o 56 gS ftl ij , ls ch esjs gLrk{kj gS o ,Dl LFkku ij eqyfte dj.khflag dh vaxqBkfu"kkuh gSA gkykr ekSdk rLnhd ?kVukLFky eqyfte dj.khflag rFkk okjnkr yqIr gqbZ cdfj;k izn"kZ ih 57 gS ftl ij , ls ch esjs gLrk{kj gSA bryk lk{; vf/kfu;e eqyfte ljthrflag izn"kZ ih 58 gS ftl ij , ls ch esjs o ,Dl LFkku ij eqyfte ljthrflag dk vaxqBkfu"kkuh gSA gkykr ekSdk cdjh [kkys izn"kZ ih 59 gS ftl ij , ls ch esjs gLrk{kj gSA nkSjkus vuqla/kku eksckbZy QksjsfUld ;qfuV chdkusj ls fjiksVZ izkIr dh Fkh tks izn"kZ ih 60 gS ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh "kkfey i=koyh dk i`'Bkadu gSA ,Q,l,y fjiksVZ izn"kZ ih 61] 62 gSA ckn vuqla/kku eqyfte dj.khflag ds f[kykQ /kkjk 302] 394] 397 Hkk-n-la- o ¼3½]2]5 ,llh,lVh,DV o ljthrflag ds f[kykQ /kkjk (Downloaded on 28/02/2020 at 08:48:59 PM) (16 of 21) [CRLA-484/2016] 411]429 vkbZihlh esa vijk/k ekurs gq, pkyku U;k;ky; esa is"k djus gsrq i=koyh Fkkukf/kdkjh dks lqiqnZ dhA"
On a bare perusal of the statement of Mr. Sarjeet Singh (P.W.16), it is clear that he did not even utter a single word so as to elaborate upon the informations allegedly given by the accused to him under Section 27 of the Evidence Act. He made a bald statement and exhibited the informations as Ex.P/55 and Ex.P/56. This court, in the case of Daau Ram Vs. State of Rajasthan [2019 (3) RLW 1843 (Raj.)] has conclusively held that for an information under Section 27 of the Evidence Act to be admitted in evidence, the police officer concerned must depose the contents thereof verbatim during his sworn testimony. A casual statement that the accused gave the information, which was being marked as an exhibit, would not amount to a lawful proof of the information. Apparently, the Investigating Officer would have recorded the informations during interrogation of the accused and thus, he would be the prime witness to prove the same. He would, thus, be required to narrate verbatim or at least in substance, the contents thereof, only whereafter, such informations could be treated as having been proved as per law. If the Investigating Officer fails, during his testimony to elaborate the details of the information given to him by the accused under Section 27 of the Evidence Act, a formal marking of the memorandum as an exhibit would not fulfill the requirement of law and the information would have to be treated as not proved. As observed above, in the case at hand, the Investigating (Downloaded on 28/02/2020 at 08:48:59 PM) (17 of 21) [CRLA-484/2016] Officer Sarjeet Singh (P.W.16) made a bald formality of marking exhibits on the informations under Section 27 of the Evidence Act in his evidence without deposing the words spoken to him by the accused and thus, these informations and the recoveries made in furtherance thereof are rendered inadmissible in evidence. Furthermore, the attesting witnesses associated in the recoveries effected by the Investigating Officer vide recovery memos Ex.P/16 (bamboo stick) and Ex.P/17 (axe) respectively are none other than Taruram and Choonaram, who are the close relatives of the deceased. No reason has been assigned by the prosecution agency as to why no independent witnesses were associated in these recoveries. Thus, we have no hesitation in holding that the prosecution miserably failed to prove the factum of recoveries allegedly made at the instance of the accused appellants and hence, the same cannot be read in evidence against the accused appellants.
18. Now we come to the prosecution case regarding recovery of suspected footmark moulds of the accused Karni Singh from the place of occurrence and the comparison thereof with the specimen footmark moulds of the accused and the FSL Report (Ex.P/61). In this regard, firstly, the site inspection plan (Ex.P/3) is required to be perused, where it is recorded that the dead body of the deceased Magharam was dragged from the Point 'X-1' to Point 'X-2'. The distance between the two points is noted as 95 feet in the site inspection plan. In (Downloaded on 28/02/2020 at 08:48:59 PM) (18 of 21) [CRLA-484/2016] the description memo of the site (Ex.P/3A), various circumstances noticed by the Investigating Officer are recorded. Mark-B is stated to be Kheep Ka Bojha (a kind of shrub). In this entire description of the site inspection plan (Ex.P/3A) prepared by the Investigating Officer, it is nowhere mentioned that any clear footmarks of the suspect were visible therein. Since the dead body was allegedly dragged in the sandy ground for 95 feet, prominent footmarks would have been imprinted nearby the track through where the deceased was dragged. However, in this entire stretch of 95 feet, no footprints were mentioned as being visible when the site inspection description memo (Ex.P/3A) was prepared.
19. Be that as it may. The SHO Mr. Ishwar Prasad (PW.14) claims to have prepared the memo (Ex.P/13) on 17.03.2010 at 05:45 pm. The foot moulds of the footwear of the suspect were shown at Mark 'B' and were lifted by Constable Girdhari Dan of MOB Team. The said Constable Girdhari Dan was not examined by the prosecution in evidence. In this background and considering the material omissions noted by us in the site inspection proceedings, no sanctity can be attached to the procedure whereby the suspect's foot moulds were collected. Furthermore, the procedure, whereby the specimen foot moulds of the accused Karni Singh were collected, is also not reliable because the Investigating Officer Ishwar Prasad (PW.14) made a bald formality of stating that the memo of seizure of foot moulds of accused Karni Singh was (Ex.P/25). Furthermore, the witnesses, who were associated as motbirs in the lifting of the specimen (Downloaded on 28/02/2020 at 08:48:59 PM) (19 of 21) [CRLA-484/2016] foot-moulds were noe other than the SHO Ishwar Prasad (PW.14) and Dr. Sunil Punia (PW.11), who was working in the Police Line Dispensary. Thus, no independent witness was associated in this process, which creates a doubt on the sanctity thereof. In addition thereto, we are of the view that the location, from where the foot moulds were allegedly lifted, creates a doubt in the mind of the Court that these foot moulds cannot be in any manner connected with the murder of Magharam. Thus, the foot mould examination report (Ex.P/61) is of no worth to the prosecution.
20. Now we come to the case of the accused Sarjeet Singh, who has been convicted for the offence under Section 411 IPC. In this regard, the following lines appearing in the cross- examination of the Investigating Officer Ishwar Prasad (PW.14) are relevant:
";g ckr lgh gS fd izkFkhZ rk:jke us fjiksVZ izn"kZ ih 1 es ;g ckr fy[kh gS fd e?kkjke ds lkFk pjkus gsrq Hksth xbZ cdfj;ka fey xbZ gSA ;g lgh gS fd cdfj;ka pksjh gksus] xqe gksus ;k de gksus dh ckr fjiksVZ izn"kZ ih 1 esa ugha fy[kh gqbZ gSA"
21. It is clear from this candid admission of the Investigating Officer that Taruram did not make any complaint in the FIR that the goats, which Magharam had taken to graze, had been lost or had been stolen. On the contrary, it was mentioned in the report that the goats were discovered later. Therefore, there is no satisfactory material on the record of the case to satisfy the court that the goat skins recovered from the premises were taken off from the stolen goats. The accused Sarjeet Singh was admittedly pursuing the trade of (Downloaded on 28/02/2020 at 08:48:59 PM) (20 of 21) [CRLA-484/2016] selling goat skins and thus, he being found in possession of the goat skins cannot be considered to be an incriminating circumstance. The goat skins did not have particular identifying marks. There is no material to satisfy the court that they have been taken off by the accused Sarjeet singh from the goats allegedly stolen.
22. In wake of the discussion made hereinabove, we are of the firm opinion that the prosecution has failed to lead appropriate evidence so as to bring home the guilt of accused for the charge of murdering the deceased Magharam and for looting the goats which he had taken to graze. The links in the chain of circumstances produced by the prosecution to bring home the charges are flimsy and unconvincing and do not lead to an unexceptional inference regarding the guilt of the accused. Thus, we are inclined to acquit the appellants while giving them the benefit of doubt.
23. Accordingly, both the appeals deserve to be and are hereby allowed. The impugned judgment dated 30.05.2016 passed by the learned Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Cases), Bikaner in Sessions Case No.23/2010 is hereby quashed and set aside. The accused appellants are acquitted of the charges. The accused Sarjeet Singh is on bail. His bail bonds are discharged. The accused Karni singh is in jail. He shall be released from prison forthwith, if not wanted in any other case.
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24. However, keeping in view the provisions of Section 437-A
CrPC, each of the accused appellants is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
Pramod/-
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