Rajasthan High Court - Jodhpur
Narendra vs State on 17 August, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 419 / 2012
Lokesh son of Bheru Lal, by caste Khati, resident of Kukdeshwar,
Police Station Kukdeshwar, District Neemuch (MP)
[lodged in Central Jail, Ajmer]
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 267 / 2012
Narendra son of Banshi Lal, by caste Khati, resident of
Kukdeshwar, Police Station Kukdeshwar, District Neemuch (MP)
[lodged in Central Jail, Ajmer]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Mridul Jain (DB Cr. Appeal No.419/2012)
Mr. Rajendra Charan (D.B. Cr. Appeal
No.267/2012)
For Respondent(s) : Mr. CS Ojha, PP
_____________________________________________________
(2 of 29)
[CRLA-419/2012]
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Per Hon'ble Mr. Justice Gopal Krishan Vyas:
Date of Judgment :: 17th August, 2017
Both the cr. appeals field by the accused appellants Lokesh
and Narendra are directed against the judgment dated 3.3.2012
passed by the learned Addl. Sessions Judge (Women Atrocities
and Dowry Cases), Bhilwara passed in Cr. Case No.70/2007
whereby the learned trial court convicted the accused appellant
Lokesh and Narendra for commission of offence under Section
302, 302/120B and 201 IPC and passed the following sentence,
which reads as under:
Under Section 302/120B IPC Life imprisonment with fine of
Rs.10,000/- and in default of
payment of fine to further
undergo six months SI
Under Section 201 IPC Five years RI and a fine of
Rs.5,000/- and in default of
payment of fine to further
undergo three months SI.
As per facts of the case, a missing report (Ex.P/26) was
submitted by one Nand Lal, father of the deceased at Police
Station Kukdeshwar, District Neemuch, MP in which it is stated by
him that his daughter Dhapu aged about 22 years went out of
home on 21.4.2007, while saying her mother Mangi Bai that she is
going to market for purchasing for the purpose of her marriage,
(3 of 29)
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but did not come back till evening and upon search, her
whereabouts are not traced out. During search when complainant
reached at one Lodge (Guest House) at Nimbaheda and shown the
photograph of his daughter to servant of the Guest House then he
was is informed by the servant of lodge that the said girl stayed in
the Guest House for 2-3 hours and left the Guest House. Further,
informed that she was wearing Salvar suit of yellow colour and
black sleepers and wearing earring (Jhumka), one golden chain in
her neck. It is also informed by the father Nand Lal that uon her
right hand, there was mark "LD". Upon aforesaid information
submitted by complainant Nand Lal Khati, the missing report
no.4/2007 was registered and investigation was handed over to
one Shambhu Nath. Wireless and Radiogram messages were sent
at different Police Stations including Neemuch and Chittorgarh.
The statement of Nand Lal Khati were recorded during search in
which Nand Lal informed that his daughter Dhapu was having
relation with one Lokesh S/o Bheru Lal Khati, therefore raised
doubt upon him. After recording statement of Nand Lal, father of
the deceased, serious efforts were made to search out Lokesh and
in the search Lokesh was found at Neemuch bus stand and upon
inquiry from him it is informed by him that Dhapu went with him
at Nimbaheda and stayed in Hotel Kanchan for some time and,
thereafter, in the night of 21.4.2007, we stayed at Ramshree
Hospital, Bhilwara and thereafter on 22.4.2007 he alongwith
Narendra Khati and Rajesh Khati took Dhapu in auto and forcibly
took her near railway track of Jodhrash Choraha. It is also
(4 of 29)
[CRLA-419/2012]
informed by Lokesh that he was having illicit relation with Dhapu
and marriage of Dhapu was going to be solemnized on 26.4.2007,
therefore, he tried to send Dhapu back at Kukdeshwar but she
was not ready to go back and she compelled Lokesh for marriage,
but Lokesh being married person was not willing to marry with
her, therefore, by using her Chunni committed murder of Dhapu
by throttling and her dead body is buried near railway track, the
ornaments were also taken in possession form the body of
deceased Dhapu.
Upon aforesaid information given by the accused appellant
the body of the deceased was recovered from the place verified by
Lokesh near Jodhrash railway track from the pit. As per
interrogation note (Ex.P/28) the SHO Kukdeshwar went at the
place alongwith accused and found hand and legs of a body on the
spot.
The SHO Police Station Sadar registered the FIR
no.114/2007 under Section 302/34 and 201 IPC and after
conducting investigation filed charge-sheet against three persons
Lokesh, Narendra and Rajesh under Section 302, 201, 341, 368,
364 and 120B IPC in the court of Judicial Magistrate, First Class
No.1, Bhilwara from where case was committed to the court of
Sessions Judge, Bhilwara for trial.
The learned Sessions Judge, Bhilwara transferred the case in
the court of Addl. Sessions Judge (Women Atrocities and Dowry
Cases), Bhilwara for trial.
The learned trial court after hearing arguments framed
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[CRLA-419/2012]
charge against the accused appellants and co-accused Rajesh
under Section 364/120B, 368/120B, 302/120B and 201 IPC but
appellants and Rajesh denied the charge and prayed for trial.
In the trial, statements of 30 witnesses were recorded from
the prosecution side to prove the allegation on the basis of
circumstantial evidence against the accused appellants and 71
documents were exhibited in support of prosecution case. The
learned trial court after recording oral and taking documentary
evidence on record proceeded to record the statement of the
accused appellants and Rajesh under Section 313 Cr.P.C. in which
they denied the allegations levelled by the prosecution witnesses
and said that all the allegations are wrong. The accused appellant
Lokesh gave following explanation, which reads as under:
ÞeSa MªkbZojh djrk Fkk xkM+h ysdj ckgj x;k FkkA eSa
dqdM+s'oj okil vk;k rks iqfyl okys idM+ dj yk;s o
Qalk fn;kA eSa csxqukg gwaA eSaus ;g gR;k ugha dhAß
The other two persons denied the allegations of prosecution
witnesses and said that it is a case of false implication. After
recording statement under Section 313 Cr.P.C. the learned trial
court finally heard arguments of both the sides and determined 8
points so as to assess the circumstantial evidence on record and
decided the case. The points determined by the learned trial court
reads as under:
1) ÞvfHk;qDrx.k ds lkFk e`rdk dk vafre ckj thfor ns[kk
tkukA
2) Ek`rdk /kkiw dws xkao dqdM+s'oj ls xk;c gksus ds fnu ls gh
vfHk;qDr yksds'k dk Hkh xk;c gksukA yksds'k ds e`rdk /kkiw ls
voS/k izse lEcU/k gksus o vijk/k dk eksfVoA
(6 of 29)
[CRLA-419/2012]
3) Ek`rdk /kkiw ds tehu esa xM+s gq;s 'ko dk [kkst ¼fMLdojh½
vfHk;qDr yksds'k ds }kjk djk;k tkukA
4) e`rdk /kkiw dh e`R;q ekuo o/kh; gksukA
5) vfHk;qDrx.k }kjk lwpuk,a nsdj ?kVukLFky dh rLnhd djk;k
tkuk o ?kVukLFky ds e`rdk dh ckyh o gkFk?kM+h dh tCrhA
6) vfHk;qDr yksds'k }kjk e`rdk ds eksckbZy o diM+ksa dh
cjkenxh djk;k tkukA
7) vfHk;qDrx.k ujsUnz ,oa jkts'k ls e`rdk ds tsojkrksa dh
cjkenxhA
8) jkT; fof/k foKku iz;ksx'kkyk ds tkap izfrosnu izn'kZ ih- 6]
ih- 7 ,oa ih- 9 ls mtkxj gkykrAß
The learned trial court while giving pointwise finding
acquitted the accused Rajesh from all the charges levelled against
him while giving benefit of doubt but convicted the accused
appellant Lokesh and Narendra for committing offence under
Sections 302/120B and 201 IPC and acquitted all of them from
other charges framed against him and passed the sentence
mentioned above vide impugned judgment dated 3.3.2012.
In these appeals, the appellants are challenging the
impugned judgment on various grounds.
Learned counsel for the appellants Mr. Mridul Jain and Mr.
Rajendra Charan vehemently argued that entire prosecution case
is based upon vague and concocted story of prosecution because
there is no direct evidence against the accused appellants to prove
the allegation of murder. The entire prosecution case is based
upon circumstantial evidence and prosecution has failed to prove
the case beyond reasonable doubt, but the learned trial court
convicted the accused appellants erroneously for alleged offence
under Section 302/120B and 201 IPC.
(7 of 29)
[CRLA-419/2012]
It is also submitted that there is no reliable or trustworthy
evidence on record to prove the fact that recovery of any article
from the accused appellants because Motbirans of recovery memo
did not support the case, therefore, in absence of any material
evidence, finding of conviction recorded by the learned trial court
deserves to be quashed and set aside.
Learned counsel for the appellants vehemently argued that
FIR was registered after recover of dead body of the deceased,
therefore, it is obvious that any statement given by the accused
appellants without police custody, cannot be used against him or
can be relied upon so as to hold accused appellant guilty for
commission of offence. As per prosecution allegation, place of
occurrence was verified by the appellant, but in fact, the place of
occurrence was already seen by the police and, thereafter, the
information was recorded under Section 27 of the Evidence Act for
identification of the place of occurrence, therefore, such document
cannot be used against the accused appellant so as to connect
them with the crime. As per submission, the learned trial court
has erred while reaching to the conclusion that appellants
participated in the alleged crime of murder. More so, the story of
the prosecution with regard to conspiracy and participation of the
accused appellant is totally baseless and seriously doubtful. The
dead body was never recovered at the instance of the accused
appellant nor any recovery was made, therefore, when there is no
evidence of last seen together then how upon concocted story of
recovery of dead body, the accused appellant can be held guilty.
(8 of 29)
[CRLA-419/2012]
While inviting attention towards FSL report it is submitted that
there is no circumstances by which it can be proved that FSL
report hatched the prosecution case because the samples which
were taken for FSL were remained intact till they reached to the
FSL or not is seriously doubtful. The story, which is connected by
the prosecution with regard to illicit relations of the accused
appellant with Dhapu has not been proved by any documentary or
oral evidence. Therefore, it is a case in which prosecution has
connected the accused appellant with the crime without any iota
of evidence.
Learned counsel for the appellants submits that prosecution
has relied upon the statement (Ex.P/28) of the accused which is
recorded on 26.4.2007, so also, upon the information (Ex.P/29)
which is said to be recorded before registration of the FIR in the
proceedings of missing report. These documents were prepared by
Veer Singh Deora (PW--17), was working as ASI at Police Station
Kukdeshwar, therefore, his statement cannot be used as an
evidence so as to connect the accused appellant with the crime.
While inviting attention towards his cross-examination it is
submitted that upon such type of circumstantial evidence no
person can be convicted, therefore, the finding of guilt recorded
by the learned trial court is totally erroneous, hence, the judgment
impugned deserves to be quashed and set aside.
The learned counsel for the appellants further argued that as
per settled principle of law if prosecution case is based upon
circumstantial evidence, then each and every circumstance is
(9 of 29)
[CRLA-419/2012]
required to be proved beyond reasonable doubt but here in this
case before registration of the FIR, dead body of the deceased
was already recovered and, thereafter, FIR was registered at
concerned Police Station. Therefore, so called recovery of dead
body in the presence of accused appellant cannot be treated to be
a recovery at the instance of the accused appellant because
accused appellant was not in police custody recovery of the dead
body.
Learned counsel for the appellant further submits that the
evidence of intention/motive of the prosecution is totally baseless,
the recovery of ornaments of the deceased has also not been
proved beyond doubt, the findings of guilt recorded by the learned
trial court is entirely based upon the circumstantial evidence is not
sustainable in law because prosecution has failed to prove the
complete chain of circumstances to connect the accused appellant
with crime, therefore, judgment impugned deserves to be
quashed.
Per contra learned Public Prosecutor submits that there is no
strength in the arguments raised by the learned counsel for the
appellants because there is ample trustworthy evidence of
prosecution on record to prove the case against the accused
appellants for committing murder of late Miss Dhapu. The learned
trial court while deciding the case framed 9 points to consider and
assess the circumstantial evidence and pointwise finding has been
given by the learned trial court after discussing the entire
evidence of prosecution and defence.
(10 of 29)
[CRLA-419/2012]
For circumstance no.1 it is submitted that while relying upon
the testimony of PW--1 Nand Lal, PW--3 Ram Pal, PW--18 Vinod,
PW--19 Jagdish, PW--20 Bholi Bai, PW--23 Deepak and PW--28
Shambhu Nath the learned trial court specifically held that
prosecution has proved the fact of last seen of the appellant with
the deceased Dhapu and considering for circumstance no.2
"whether there was any motive for the appellant Lokesh to
commit murder of deceased Dhapu" the learned trial court after
due consideration of evidence held that deceased Dhapu fall in
love with Lokesh but her father was going to solemnize her
marriage with one Satyanarayan on 26.4.2007 and she was not
willing to marry with him, insisting Lokesh appellant for marriage,
but Lokesh was already married person, was not interested for
marriage with Dhapu (deceased), therefore, to remove her from
his life, committed murder of Dhapu and it was the motive of the
appellant to commit murder of Dhapu.
With regard to circumstance no.2 it is submitted that dead
body of the deceased Dhapu was recovered upon information
given by the accused appellant Lokesh, therefore, there is no
question to disbelieve the finding of guilt based upon sound
appreciation of evidence by the learned trial court.
For circumstance no.4 and 5 it is submitted that as per
finding of learned trial court the death of the deceased was not
natural and the place of occurrence was identified by the accused
appellant Lokesh and dead body of the deceased alongwith ear-
rings and wrist watch was recovered in front of two witnesses,
(11 of 29)
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therefore, the finding of recovery of the place of occurrence
where dead body and ear-rings does not require any interference.
Similarly, it is submitted that an information (Ex.P/51) was
given by the co-accused Narendra to identified the place of
occurrence and Rajesh gave information (Ex.P/52) for the same
purpose and in pursuance of those informations recovery of ear-
rings and wrist watch was made, therefore, trial court gave finding
that prosecution has proved its case beyond reasonable doubt.
With regard to circumstance no.6 for recovery of mobile and
cloths, the learned trial court after discussing entire evidence gave
finding that cloths and mobile were recovered as per information
given by the accused appellant Lokesh and Narendra.
For the circumstance no.7 it is submitted that after due
discussion trial court held that ornaments of deceased were
recovered as per information given by the accused appellant and
those ornaments were identified by the witness Chuni Lal and
PW--26 Dalip Kumar, therefore, the fact of recovery was also
been established from the evidence on record.
With regard to admissibility of FSL report, the learned trial
court considered the entire evidence and held that there is no
error in the FSL report (Ex.P/8 and P/9), therefore, there is no
question to disbelieve the entire evidence upon which the learned
trial court gave finding of guilty against the accused appellant.
Learned Public Prosecutor vehemently argued that
prosecution has proved its case beyond reasonable doubt under
Section 302/149 IPC, as such, no interference is called for in this
(12 of 29)
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case so as to disturb the finding of the learned trial court for
convicting the accused appellant for offence of murder.
After hearing learned counsel for the parties, we have
perused the entire evidence and considered the arguments
advanced by the learned counsel for the parties. Admittedly,
entire case is based upon circumstantial evidence of recovery of
dead body of late Dhapu at the instance of the accused appellant
Lokesh. It emerges from the facts that on 24.4.2007 Nand Lal
(PW--1), father of the deceased Dhapu Bai submitted a missing
report (Ex.P/24) at Police Station Kukdeshwar, District Neemuch
to one Shambhu Nath, Head Constable (PW--28) and same was
registered in the Rojnamcha. In pursuance of the aforesaid
missing report Sh. Shambhu Nath (PW--28) sent Radiogram
message (Ex.P/25) at various places of Neemuch and Chittorgarh
and recorded the statement of complainant Nand Lal in connection
with missing report vide Ex.P/4. In the statement Nand Lal
(PW--1) father of the deceased Dhapu Bai said that the marriage
of my daughter Dhapu is going to be solemnized on 26.4.2007 in
a joint marriage programme of his community. Alongwith Dhapu
the marriage of his younger daughter is also going to be
solemnized on that date.
On 21.4.2007 Dhapu Bai left the house while taking some
money from her mother to purchase some marriage article, but
did not return back, therefore, after searching two days, missing
report was submitted at Police Station Kukdeshwar on 24.4.2007
by the complainant Nand Lal.
(13 of 29)
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In the statement, it is reported by the complainant Nand Lal
that Dhapu left his house while taking Rs.3,500/- and also took
her ornaments, which is said to be gifted by her in-laws house.
The complainant Nand Lal khati raised doubt against Lokesh Khati
because he was also missing from the village and as per
complainant his daughter Dhapu permanently marked the word
"LD" upon hand because she was having relation with Lokesh. The
Head constable Shambhu Nath made search and further
proceedings were undertaken by PW--17 SHO Veer Singh Devra.
As per statement of PW--17 Veer Singh Devra on 26.4.2007 he
took inquiry from Shambhu Nath and proceeded to search Dhapu
Bai alongwith complainant Nand Lal. As per statement of Nand Lal
he was having doubt upon accused Lokesh, therefore, PW--17
Veer Singh Deora commenced search and on the bus stand of
Neemuch, Nand Lal complainant identified Lokesh, who was
standing there alongwith his brother in Law Panna Lal due to
suspicion accused appellant Lokesh was interrogated and during
interrogation Lokesh informed that on 21.4.2007 when Dhapu
meet at that time at Nimbahera I and Dhapu went from Kanchan
Hotel, Nimbahera to Bhilwara. It is also informed by Lokesh that
they stayed at Kanchan Hotel alongwith 2-3 persons for 2-3
hours. The suspect Lokesh accepted his love affairs with deceased
Dhapu and informed that Dhapu was compelling him for marriage,
therefore, Dhapu was taken from Nimbahera to Bhilwara in bus, at
that time, Narendra S/o Shri Banshi Lal and Rajesh S/o Shri Mangi
Lal R/o Kukdeshwar were with him. The brother of Narendra was
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admitted in the Ramsnehi Hospital at Bhilwara, therefore, Lokesh
and Dhapu went to Ramsnehi Hospital where Narendra, Rakesh,
Lokesh and Dhapu met and they stayed in the garden of Ramsnehi
Hospital in the night and on next day i.e. on 22.4.2007 all these
persons came back from the bus stand and hired Auto rickshaw
and went towards Ajmer Road at village Jodhdas.
In between the way near village Jodhdas there is dairy
where all these persons come down from auto rickshaw and went
on foot towards railway track in forest. During investigation it is
also informed by the Lokesh that in the forest near railway track
of Jodhdas Narendra and Rajesh made desire for intercourse with
Dhapu but Dhapu was compelling Lokesh for marriage and Lokesh
was not ready for marriage with her because he was already
married and having children. The marriage of Late Dhapu was
fixed on 26.4.2007, therefore, she was compelling Lokesh for
marriage.
As per statement of PW--17 Veer Singh Deora during
investigation Lokesh gave information that with the help of
Narendra and Rajesh in spur of moment I killed Dhapu by
throttling. When I was throttling both Rajesh and Narendra caught
her legs. It is also informed by Lokesh that dead body of Dhapu
was thrown in one pit and mud was thrown upon her body near
railway line of Jodhdas. It is also informed that all the ornaments
which she was wearing were taken from her body.
The aforesaid interrogation note was prepared vide Ex.P/28.
Upon said interrogation note, the accused appellant Lokesh put his
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signature, thereafter an information was given by him with regard
to the place where dead body of Dhapu was buried and
information was recorded vide Ex.P/29 and signatures of Lokesh,
Madan Lal and one Ramesh, brother-in-law of Nand Lal were also
obtained. After receiving such information from Lokesh, all the
persons went at the place where suspect Lokesh identified the
place. As per statement of PW--17 Veer Singh Deora when they
reached at the place of recovery of body alongwith Lokesh they
saw that some part of hand and legs were appearing from the pit,
therefore, one constable Rameshwar was deputed there for
security of the dead body and information was made to the SHO
Police Station Sadar Bhilwara Shri Prem Singh Deval and after
obtaining requisition the SDM Bhilwara was informed by the SHO
Prem Singh Dewal and informant Nand Lal, Ramesh, SDM
Bhilwara went on spot and in the presence of all the suspect
Lokesh removed mud from the dead body and the dead body was
recovered in the presence of Nand Lal who identified the body of
his daughter Dhapu.
The dead body was completely naked except underwear and
one golden ring and earrings were found in the ears. The cloths of
dead body was also recovered from bushes near pit as per
information given by accused Lokesh. All the articles were taken in
possession by the SHO, Sadar, Bhilwara. The postmortem of the
dead body was conducted on spot by the Medical Board and
thereafter, dead body of Dhapu was handed over to her father,
Nand Lal, who was present at the time of recovery of dead body.
(16 of 29)
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The SHO PW--17 Veer Singh Deora registered FIR No.114/2007
upon written report submitted by Nand Lal for the offences under
Section 302, 201 and 34 IPC and commenced the investigation.
The whole inquiry in pursuance of missing report was
conducted by PW--17 Veer Singh Deora of Police Station
Kukdeshwar, District Neemuch (MP) and inquiry report Ex.P/32
was submitted by him to the SHO, Police Station Bhilwara for
registration of FIR and investigation.
In the investigation SHO Police Station Sadar, District
Bhilwara arrested Narendra, Rajesh and Lokesh and thereafter
recovery of ornaments were made as per information given by
Narendra and Rajesh. It emerges from the recovery that thorough
investigation was conducted and on the basis of circumstantial
evidence and recovery of dead body at the instance of accused
appellant Lokesh chargesheet was filed against all the three
accused. The statements of 30 prosecution witnesses were
recorded to prove charge levelled against the accused appellants
Lokesh and Narendra.
We have considered the argument of learned counsel for the
accused appellant that before registration of FIR information was
recorded by the police, which is not admissible in law because as
per evidence of the case dead body was recovered upon
information given by the accused appellant when he was not in
police custody, therefore, such information given to the police
cannot be taken into account so as to hold accused appellant
guilty for commission of offence as per section 25 of the Evidence
(17 of 29)
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Act. To consider aforesaid argument we have perused the missing
report (Ex.P/24) submitted by the Nand Lal (PW--1) at Police
Station Kukdeshwar. In the said information it was specifically
mentioned by Nand Lal, father of the deceased that Dhapu was
my daughter, her marriage was going to be solemnized on
26.4.2007, but she left the house to purchase some articles for
marriage and it is also specifically informed that suspect Lokesh is
also not available in the village. The statement of Nand Lal were
recorded vide Ex.P/26 by the SHO Police Station Kukdeshwar in
pursuance of missing report No.4/2007. The name of Lokesh was
disclosed by the complainant because Lokesh was having illicit
relation with his daughter Dhapu, therefore, during search when
Lokesh was standing at bus stand Nimbahera he was interrogated
by the police. It is obvious from above fact that investigation was
conducted upon missing report in which information was furnished
by the accused appellant Lokesh with regard to the incident. In
our opinion, it cannot be said that at the time of inquiry by the
police upon missing report, Lokesh was in police custody. More so,
he gave information when he was interrogated by the police. It is
true that interrogation note cannot be used against accused to
hold him guilty, but at the same time, we cannot lose sight of the
fact that there is power left with the police that after registration
of missing report to search the missing person and during search,
if any information is required, or came to the knowledge of the
investigating officer, then it can be recorded so as to ascertain the
whereabouts of truth and to search the person concerned.
(18 of 29)
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Admittedly, the dead body of Dhapu was recovered in
presence of SDM, who was called by the police after receiving
information from the accused appellant Lokesh. We have perused
the statement of PW--17 Veer Singh Deora, PW--29 Prem Singh
Deval, PW--1 Nand Lal, PW--4 Ramesh, PW--16 Rameshwar
Chandel and PW--30 Gaurav Chaturvedi. All these witnesses
categorically stated before the court on oath that recovery of dead
body of the deceased Dhapu was made upon information given by
the accused Lokesh during inquiry in pursuance of missing report
registered at Police Station Kukdeshwar, District Neemuch (MP).
There is no doubt that dead body of Dhapu was traced out
during inquiry in pursuance of missing report submitted by PW--1
Nand Lal, father of the deceased and all the witnesses loudly
speaks that dead body was recovered at the instance of accused
appellant Lokesh vide Ex.P/1 on 27.4.2007 at 9.00 am in the
presence of two Motbirs witness Ranjeet and Vinod, so also, in
the presence of SDM PW--20 Gaurav Chaturvedi and other
witnesses Nand Lal and Veer Singh Deora. It is true that PW--2
Ranjeet and PW--5 Vinod Kumar turned hostile and did not
support the prosecution case, but we cannot disbelieve the
testimony of SDM and other witnesses before whom dead body
was recovered at the instance of the accused appellant Lokesh.
The recovery memo of the dead body (Ex.P/1), Panchanama of
the body (Ex.P/2) bears the signature of all these persons. The
cloths were also recovered as per information of the accused
appellant Lokesh, therefore, it cannot be presumed that recovery
(19 of 29)
[CRLA-419/2012]
of the dead body was not made at the instance of the accused
appellant Lokesh. It is true that out of 30 witnesses, PW--2
Ranjeet, PW--3 Ramlal, PW--5 Vinod Kumar, PW--6 Amarchand,
PW--7 Sunil Kumar, PW--10 Girija Shanker, PW--11 Chatru, PW--
13 Vimal Kumar and PW--19 Jagdish turned hostile and did not
support the prosecution case but other witnesses including SDM,
Bhilwara categorically said that dead body of the deceased was
recovered in his presence and in the post mortem report given by
the medical board consisting of four members, the medical board
categorically gave opinion that cause of death of deceased
Dhapu was due to shock due to ante-mortem cervical injury, head
injuries which were sufficient to cause death. However, it is
observed that final cause of death will be given after receiving FSL
report. The FSL report is also on record.
Upon consideration of entire evidence, we are of the opinion
that prosecution has proved very important fact of recovery of
dead body of deceased Dhapu at the instance of the accused
appellant Lokesh ,but it is also admitted fact that no information
was given by the accused appellant Narendra during investigation
so also ornaments were not identified during investigation. The
witness PW--26 Dilip Kumar said that ornaments were shown to
them in the Police Station. The SDO, Bhilwara PW--30 Gaurav
Chaturvedi gave following statements, which reads as under:-
Þeq[; ijh{k.k }kjk fo-yks-v- %&ß
fnukad 27-04-2007 dks eSa mi[k.M vf/kdkjh ds in ij
HkhyokM+k dk;Zjr FkkA ml fnu Fkkukf/kdkjh dqdM+s'oj
¼e/;izns'k½ ohjflag nsoM+k us esjs le{k ,d fjiksVZ is'k dh
(20 of 29)
[CRLA-419/2012]
ftlesa crk;k fd xzke tks/kM+kl ds jsYos ykbZu ds ikl ,d
yk'k x<+h gqbZ gS ftldks fudyokus dh dkjZokbZ djuh gSA
ftl ij eSa vkSj ohjflag nsoM+k] iszeflag nsoy] 'kkafryky th
pkSchlk lh-vks- HkhyokM+k] lafnX/k O;fDr yksds'k o e`rdk ds
firk uanyky crk, vuqlkj tks/kM+kl igqapsA ;gka igqapdj
yksds'k ds crk, vuqlkj ftl LFkku dks yksds'k us bafxr fd;k
mlus crk;k fd eSaus /kkiw dh yk'k dks bl LFkku ij xk<+k
FkkA ml LFkku ls feV~Vh gks gVokdj yk'k dks fudyok;k
x;kA ogka ,d efgyk dh yk'k fudyh ftldh igpku e`rdk
ds firk uanyky }kjk /kkiw ds :i esa dh xbZA yk'k ij ek=
,d v.Mjfo;j Fkh ckdh uXu voLFkk esa FkhA yk'k ij ,d
dku dk yksax vkSj ,d vaxwBh iguh gqbZ FkhA yk'k fudyokus
ckcr~ QnZ cukbZ tks izn'kZ ih 01 gS ftl ij ,e ls ,u esjs
gLrk{kj gSaA yk'k dk iapk;rukek yk'k cuk;k ftl ij ds ls
,y esjs gLrk{kj gSa] ,e ls ,u ohj flag nsoM+k ds gLrk{kj gSA
ekSds ij gh yk'k dk iksLVekVZe djok;k x;kA dqdM+s'oj
Fkkukf/kdkjh us esjs le{k tks fjiksVZ is'k dh Fkh oks izn'kZ ih
31 gSA esjs }kjk dkjZokbZ ds leLr nLrkost eSaus mudh
fyf[kr rgjhj ds vk/kkj ij ,l-,p-vks- lnj dks lqiqnZ fd;sA
tks dkxtkr laHkyk, mudh QnZ cukbZ tks izn'kZ ih 71 gS
ftl ij esjk , ls ch i`"Bkadu gksdj gLrk{kj gSaA
ftjg }kjk vf/k- vfHk;qDr yksds'k dh vksj ls %&
eSa ekSds ij ,d gh ckj x;k FkkA fnukad 27-04-2007 dks
lqcg djhc 08%30 cts dqdM+s'oj Fkkukf/kdkjh us esjs le{k
fjiksVZ is'k dh FkhA tc eSa ekSds ij igqapk rks ogka dkQh HkhM+
gks jgh FkhA ;g dguk xyr gS fd eSa ekSds ij fnukad 26-04-
2007 dks gh igqap x;k gksÅa vkSj eSaus ogka yk'k ns[k yh gksA
;g dguk Hkh xyr gS fd fnukad 26-04-2007 dks 'kke dks eSaus
yk'k dks blfy;s ugha fudyok;k gks D;ksafd ogka etnwj
miyC/k ugha gksA eSa lafnX/k O;fDr yksds'k dks O;fDrxr :i
ls ugha tkurk FkkA
ftjg }kjk vf/koDrkx.k 'ks"k eqfYteku %&
;g esjh tkudkjh esa ugha gS fd yk'k fudkyh tkrs le;
eqfYte ujsUnz vkSj jkts'k Hkh mifLFkr gksA eq>s rks
Fkkukf/kdkjh dqdM+s'oj us eqfYte yksds'k ds ckjs esa crk;k Fkk
fd ;g lafnX/k O;fDr gS vkSj yksds'k uke ds O;fDr us gh
iqfyl vkSj esjs lkeus tehu esa yk'k fudyokbZA
iqu% ijh{k.k %& 'kwU;Aß
In view of above we are of the opinion that no error has
(21 of 29)
[CRLA-419/2012]
been committed by the learned trial court so as to hold accused
appellant guilty for committing offence under Section 302 and 201
IPC
The present case is a case of circumstantial evidence and
Hon'ble the Apex Court in the case of Vijay Shankar v. State of
Haryana, reported in (2015) 12 SCC 644 : (AIR 2015 SC 3686)
held that in a case based on circumstantial evidence the
circumstances from which an inference of guilt is sought to be
drawn must be established cogently and firmly; that these
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances taken
cumulatively should form the chain so complete that there is no
escape from the conclusion that within all human probability the
crime was committed by the accused and he should be incapable
of explanation of any hypothesis other than that of the guilt of the
accused and inconsistent with his innocence.
The Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra reported in (1984) 4
SCC 116 has enumerated the following golden principles, which
reads as under :
"(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive
(22 of 29)
[CRLA-419/2012]
nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused."
In the case of Ningappa Yallappa Hosamani & Ors. Vs. State
of Karnataka & Ors., (2010) 1 SCC (Cri) 1460, it was held by the
Hon'ble Apex Court that where on the basis of statement made
under Section 27 of the Evidence Act, dead body of deceased was
recovered in furtherance of voluntary information furnished by two
accused, the natural presumption in absence of explanation was
that it was these two accused persons who had murdered the
deceased and buried his body. In the case of State of Maharashtra
vs. Suresh reported in (2000) 1 SCC 471, it was observed by the
Hon'ble Supreme Court as under :-
"Three possibilities may be countenanced when
an accused points out the place where a dead
body or an incriminating material was concealed
without stating that it was concealed by himself.
One is that he himself would have concealed it.
Second is that he would have seen somebody
else concealing it. And the third is that he would
have been told by another person that it was
concealed there. But if the accused declines to
tell the criminal court that his knowledge about
(23 of 29)
[CRLA-419/2012]
the concealment was on account of one of the
last two possibilities, the criminal court can
presume that it was concealed by the accused
himself. This is because accused is the only
person who can offer the explanation as to how
else he came to know of such concealment and
if he chooses to refrain from telling the Court as
to how else he came to know of it, the
presumption is a well justified course to be
adopted by the criminal court that the
concealment was made by himself. Such an
interpretation is not inconsistent with the
principle embodied in Section 27 of the Evidence
Act.
In State of Andhra Pradesh vs. Gangula Satya Murthy,
reported in 1997 Crl. J 774, the Apex Court has observed as
under:-
"Where the fact that the dead body was found
on the cot inside the house of the accused, it
was held to be a telling circumstance against
him. It was further held that the accused owed a
duty to explain as to how a dead body, which
was resultant of a homicide, happened to be in
his house. In the absence of any such
explanation from him, the implication of the said
circumstances is definitely adverse to the
accused."
In the case of Munna Kumar Upadhyaya alias Munna v. State
of Andhra Pradesh : AIR 2012 SC 2470) Hon'ble the Apex Court
held that statement under Section 313 of Cr.P.C. is to serve a dual
(24 of 29)
[CRLA-419/2012]
purpose, firstly, to afford to the accused an opportunity to explain
his conduct and secondly to use denials of established facts as
incriminating evidence against him. If the accused gave incorrect
or false answers during the course of his statement under Section
313 of Cr.P.C., the court can draw an adverse inference against
him.
Hon'ble Delhi High Court in the case of Ashok Vishwakarma
@ Surji Vs. State reported in 2014 IAD (Delhi) 734 while
considering various judgments of Hon'ble Supreme Court has held
as under :-
"Thereafter, after breaking open the floor and
digging the earth upto 3/4 ft., one yellow
plastic katta was taken out. One dead body was
recovered lying wrapped in sheet inside the
plastic katta. One iron chain and one sandal like
chappal pair was found in the katta.
......
As such mere fact that the proceedings do not bear her signatures, does not cast any doubt regarding her presence at the time of proceedings. Even otherwise, clinching evidence has come on record to prove the recovery of dead body at the instance of accused persons.
.......
Another aspect is to be taken note of. All the incriminating circumstances which point to the guilt of the accused persons have been put to them, yet they could not give any explanation under Section 313 of the Cr.P.C. except (25 of 29) [CRLA-419/2012] choosing the mode of denial. In State of Maharashtra Vs. Suresh : (2001) SCC 471 reiterated in Jagroop Singh Vs. State of Punjab :
(2013) 1 SCC (Crl.) 1136, it has been held that when the attention of the accused is drawn to such circumstances that inculpate him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the aforesaid decisions only to highlight that the accused have not given any explanation whatsoever as regards the circumstances put to them under Section 313 Cr.P.C."
Recently, the Division Bench of this Hon'ble Court in the case of Govind Singh Vs. State of Rajasthan (D.B. Criminal Jail Appeal No. 281/2010) decided on 29.08.2016 while relying upon the judgment in the case of State of Maharashtra Vs. Suresh (Supra) and Paramasivam & Ors Vs. State of Andhra Pradesh through Inspector of Police reported in (2015) 13 SCC 300 has held as under :-
"After arrest of accused-appellant, the recoveries were made by the investigation agency at the instance of accused and he identified the place of occurrence. The reports of Forensic Science Laboratory and CDFD, Hyderabad are conclusive regarding matching of the materials and further no explanation has been tendered by the accused-appellant with regard to the incriminating material against him which (26 of 29) [CRLA-419/2012] provides the missing links. The prosecution has proved all the circumstances which only points towards the guilt of the accused-appellant that he is the only perpetrator of the crime and none else. For the above reasons, we see no infirmity in the impugned judgment. There is no merit in the submissions raised on behalf of the accused- appellant. Resultantly, the appeal is dismissed."
In this case also dead body was recovered vide Ex.P/1 from the pit near railway track of Jodhrash circle from the place identified by the accused appellant and it is clinching evidence to hold accused appellant guilty because there is no explanation in this regard by the accused appellant Lokesh. It is established and proved by the prosecution that there was illicit relationship between the accused appellant Lokesh and deceased Dahpu and accused appellant Lokesh was not interested to marry with her and she was insisting for marriage, therefore, murdered by none other than the accused-appellant Lokesh.
In view of the above discussion, we are of the opinion that finding of conviction recorded by the learned trial court so as to hold accused appellant Lokesh guilty for committing offence does not require any interference.
We have considered and examined the merit of D.B. Cr. Appeal No.267/2012 filed by the accused appellant Narendra. Admittedly, there is no evidence that dead body of Dhapu was recovered at the instance of the accused appellant Narendra nor any evidence is on record for having any relation with Dhapu. The accused appellant Narendra was implicated on the basis of (27 of 29) [CRLA-419/2012] recovery of ornament but recovery has not been proved beyond reasonable doubt because witnesses of recovery turned hostile. The only allegation against the accused appellant Narendra and Rajesh is that they were accompanying Lokesh when offence was committed by him, the learned trial court disbelieved the interrogation note (Ex.P/28) of accused Lokesh and there is no other reliable evidence on record to connect the accused appellant Narendra with the crime, therefore, the case of accused appellant Narendra is at par with other accused Rajesh acquitted by the learned trial court The learned trial court while deciding the circumstances no.5 has categorically held that dead body was recovered from the place identified by the accused appellant Lokesh only and while deciding the circumstance no.7 observed that ornaments were recovered as per information of the accused appellant Narendra and Rajesh and identified by Chunni Lal and Girjashanker when ornaments were recovered and the witness PW--26 Dilip Kumar Soni supported their testimony, but in our opinion, it is settled principle of law that recovery of ornaments at the instance of the accused should be proved in the identification proceedings before the Magistrate or any other authority, but in this case no identification proceeding was conducted, therefore, it is obvious that the learned trial court erroneously held that recovery of ornaments is proved.
Admittedly, the witnesses of recovery PW--11 Chatru and PW--10 turned hostile and did not support the recovery of (28 of 29) [CRLA-419/2012] ornaments and no identification parade was conducted, therefore, the finding recorded by the learned trial court proved on the basis of the fact that ornaments were identified at the place of recovery by Chhuni Lal and Dilip Kmar cannot be accepted because as per settled principle of law identification of ornaments was to be made before the Magistrate or any other competent authority but no such procedure was conducted. In view of the above, we are of the firm opinion that the finding of the learned trial court so as to hold accused appellant Narendra guilty is seriously doubtful because upon same set of evidence, the co-accused Rajesh has been acquitted from the charges levelled against him by the learned trial court.
In view of the above discussion, there is no doubt that prosecution has failed to prove the case against the accused appellant Narendra beyond doubt on the basis of recovery of ornaments, therefore, finding of conviction recorded against the accused Narendra for offence under Section 302/120B IPC is not sustainable in law.
Consequently, the D.B. Cr. Appeal no.419/2012 filed by the accused appellant Lokesh is hereby dismissed and the D.B. Cr. Appeal no.267/2012 filed by the accused appellant Narendra is hereby allowed and the conviction and sentence passed against Narendra vide judgment dated 3.3.2012 by the learned Addl. Sessions Judge (Women Atrocities and Dowry Cases), Bhilwara in Cr. Case NO.70/2007 for the offences under Section 302/120B and 201 IPC is hereby quashed and set aside. The accused (29 of 29) [CRLA-419/2012] appellant Narendra is on bail, therefore, his bail bonds are discharged and he need not be surrender.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant Narendra is directed to forthwith furnish personal bond in the sum of Rs.20,000/- 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 Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps