Rajasthan High Court - Jaipur
Prakash @ Omprakash Son Of Shri Lohre vs State Of Rajasthan (2023/Rjjp/006065) on 20 April, 2023
Bench: Pankaj Bhandari, Anil Kumar Upman
[2023/RJJP/006065]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 120/2021
Prakash @ Omprakash Son Of Shri Lohre, Resident Of Maholi,
P.S. Sadar Karauli At Present Resident Of Shivpuri, Block-B
Colony, Gangapur City, District Sawaimadhopur, Rajasthan (At
Present In Central, Jail, Bharatpur)
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. Aijazul Nabi Khan with Mr. Veerendra Kumar Bakshi For State : Ms. Alka Bhatnagar, Additional Government Advocate HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Judgment RESERVED ON :: 06/04/2023 PRONOUNCED ON :: 20/04/2023 (Per Hon'ble Pankaj Bhandari, J.)
1. The accused appellant has preferred this Criminal Appeal aggrieved by the judgment of conviction dated 09.07.2021 whereby the accused appellant has been convicted for offence under Sections 302, 376, 379 and 404 IPC and against the order of sentence dated 12.07.2021 whereby he has been sentenced for offence under Section 302 IPC for life imprisonment (rigorous imprisonment) and a fine of Rs.50,000/-, in default of payment of fine, to further undergo 6 months rigorous imprisonment; for offence under Section 376 IPC, he has been awarded life imprisonment (rigorous imprisonment) and a fine of Rs.50,000/-, (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (2 of 18) [CRLAD-120/2021] in default of payment of fine, to further undergo 6 months rigorous imprisonment; for offence under Section 379 IPC, he has been sentenced for a period of 2 years rigorous imprisonment and a fine of Rs.10,000/-, in default of payment of fine, to further undergo 3 months rigorous imprisonment and for offence under Section 404 IPC, he has been sentenced for 3 years rigorous imprisonment and a fine of Rs.10,000/-, in default of payment of fine, 3 months rigorous imprisonment. All the sentence awarded by the Court below shall run consecutively and not concurrently.
2. Succinctly stated the facts of the case are that on 29.01.2018, an FIR No.16/2018 for offence under Sections 302 & 201 IPC was registered at Police Station, Kailadevi, Karauli. As per the said FIR, an unidentified body of a lady was found in the lane near Kharagarhwali Dharmshala. The body was spotted by some villagers, who informed the police. The body was spotted near public toilet and body was recovered in a plastic bag. The body was not identified at the spot, although as per the prosecution evidence, at the place, many people were present including Shanti (PW-1) and Rekha @ Kalla (PW-29), who are the star witnesses in this case. On 29.01.2018 a missing person report was filed at Police Station, Gangapurcity by one Harkesh about disappearance of his wife since 28.01.2018. The body was identified by Harkesh on 30.01.2018. After due investigation, the police submitted charge-sheet against the accused appellant for offence under Sections 302, 397, 201 & 376 of IPC and against Hari and Virendra @ Vijay @ Munshi under Sections 201 and 176 of IPC. The learned trial Court has framed charges against the accused appellant for the offence under Sections 302, 397, 201 & 376 of (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (3 of 18) [CRLAD-120/2021] IPC and charges were framed against Hari and Virendra @ Vijay @ Munshi for the offence under Sections 176, 201 read with Section 120-B IPC. All the accused denied charges and claimed trial. During pendency of the trial, Hari died and proceedings against him abated. On behalf of the prosecution, as many as 30 witnesses were examined, 68 documents were exhibited and Article-1 was produced before the Court. The accused were examined under Section 313 Cr.P.C. After hearing the arguments, the Court below acquitted Virendra @ Vijay @ Munshi and convicted the accused appellant for offence under Sections 302, 376, 379 and 404 of IPC, aggrieved by which, the present appeal has been preferred before this Court. Against the acquittal of Virendra, the State has not preferred any appeal.
3. It is contended by the counsel for the accused appellant that the prosecution case as mentioned in the charge-sheet was that accused appellant along with the deceased took a room on rent at the Dharmshala. Thereafter, after raping and murdering her, he left the Dharmshala at 06:00 PM. Hari - Caretaker of the Dharmshala found the deceased in a pool of blood and informed Rekha (PW-29) to call her friend. After her friend i.e. Virendra reached the Dharmshala, Hari - Caretaker cried and asked him to help in disposing of the body as he was afraid of police interrogation. Thereafter, both Hari and Virendra packed the body in a plastic bag and disposed of the body in the adjoining gali. Thereafter, they cleaned the room of bloodstains. It is also contended that the Court has acquitted Virendra and Hari has expired and proceedings against him has abated. The possibility of Hari and Virendra being involved in the gruesome murder and (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (4 of 18) [CRLAD-120/2021] rape cannot be ruled out. It is further contended that once the police after due investigation had arrived at the conclusion that Virendra and Hari were involved in disposing of the body, it was the bounden duty of the Investigating Team to recover their clothes and send the same to FSL.
4. It is contended that Rekha (PW-29) is not a reliable witness as in her cross-examination, she has stated that the police forced her to become a witness. It is also contended that Rekha (PW-29) was known to Virendra and she has not stated the fact of Virendra and Hari disposing of the body and cleaning the room. It is further contended that the learned trial Court has erred in coming to the conclusion that the chain is properly connected. The trial Court has placed reliance on the CCTV footage of the temple without there being any Certificate under Section 65-B of the Evidence Act. It is argued that in absence of the Certificate under Section 65-B of the Evidence Act, the pen-drive had no evidenciary value. It is contended that even if the CCTV footage is to be believed, the appellant was last seen with the deceased at around 11:37 AM on 28.01.2018, thereafter, there is no CCTV footage of the appellant with the deceased. It is also contended that the learned trial Court has erred in convicting the accused appellant for offence under Section 376 IPC merely because semen is detected in the clothes and vaginal swab of the deceased, the possibility that she was raped by Virendra or Hari and was murdered by them cannot be ruled out. There is no DNA report to suggest that the semen which was found on the clothes and vaginal swab of the deceased had any link with that of the accused appellant.
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5. It is contended that the Court has on its own drawn a conclusion that after the appellant left the temple premises, he went to purchase a knife. The seller of the knife - Kamlesh (PW-
20) has merely stated that he sold a knife and he has not identified the appellant. Merely because, he had sold a knife would not imply that the knife, which was used for causing amputation in the legs of the deceased, was the one sold by him. The knife was not even put to the seller to establish that the same knife was sold by him on 28.01.2018. It is also contended that the learned trial Court has on its own observed that when appellant left the Dharmshala in a perplexed manner, Hari went to the Dharmshala's room and there he saw the deceased lying in a pool of blood. It is not the prosecution case that Hari saw the appellant leaving the Dharmshala in haste.
6. It is also contended that the learned trial Court has also on its own assumptions, drawn a conclusion that during the period when the appellant was not with the deceased, he went to purchase a knife. It is further contended that the learned trial Court has mentioned that at around 12:00 noon, they were seen in the CCTV footage going together in the Dharmshala, however, from the CCTV record, which has been produced, no where there is any mention of any CCTV installed near the Dharmshala so as to record the entry into the Dharmshala. Learned trial Court has drawn presumption on its own surmises and conjectures.
7. It is contended that as per the prosecution case, as admitted by Shanti (PW-1), her daughter - Rekha @ Kallo (PW-29) and co- accused Virendra were known to each other and in Exhibit-P-1, (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (6 of 18) [CRLAD-120/2021] the statement that Shanti (PW-1) gave before the police recorded under Section 161 Cr.P.C., it is mentioned that her daughter - Kallo and Virendra @ Vijay @ Munshi were staying together as husband and wife. The possibility that Kallo (PW-29) had levelled false allegations against the appellant cannot be ruled out for the very reason that she was having an affair with co-accused - Vijay @ Virendra. It is also contended that the initial case of the prosecution was that Kallo (PW-29) called up Virendra by ringing him up and then Virendra and Hari disposed of the body, however, she had denied giving statement wherein the fact that Hari pleaded with Virendra to help him in disposing of the body was mentioned. It is contended that the possibility that Virendra and Hari committed the crime of rape and murder and then disposed of the body cannot be ruled out. It is further contended that after the appellant was last seen in the company of the deceased in the temple, there is no evidence except for Kallo (PW-29), who happens to be an unreliable witness as she was having an affair with co-accused Virendra @ Vijay.
8. It is contended that the proceedings against Hari has abated and Vijay @ Virendra has been acquitted. As to how the body reached the lane adjoining the Dharmshala remains a mystery and as such, the circumstances do not point out towards the guilty of the appellant.
9. It is also contended that after the recovery of the dead body, the first step that any reasonable person would have taken was to inform the police; more particularly, if the person himself is not involved in the offence of rape and murder. Not informing the (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (7 of 18) [CRLAD-120/2021] police and disposing of the body and changing the crime scene tantamounts to involvement of Hari and Virendra in the alleged crime. It is further contended that the investigation in the case has not been upto the mark, as no bloodstained clothes of Hari and Vijay were recovered by the police, when admittedly, as per the case of the prosecution, Hari and Virendra were the persons, who carried the body from room No.16 to the lane, which is at a distance of more than 85 feet. It is also contended that the possibility of the clothes, which were recovered from the site of the incident were thrown by Vijay and Hari cannot be ruled out and the fact that they might have cleaned the blood stains from these clothes is also a possibility. It is further contended that the recovery of Kaddas at the instance of the appellant also does not lead to his guilt for the very reason that Kaddas were not subjected to identification and they were not put to the witnesses to establish that they were the same Kaddas, which were worn by the deceased at the time of her demise.
10. It is contended by the learned Additional Government Advocate that Rekha @ Kallo (PW-29) is an independent witness whose flower shop is just near the Dharmshala. She has seen the appellant taking the room on rent from Hari. She has also seen the appellant and the deceased going to the room at 12:00 noon and she has also seen the appellant leaving the Dharmshala at 06:00 PM in a perplexed state. It is argued that there is no reason to disbelieve the testimony of Rekha (PW-29). It is also contended that the recovery of Kaddas at the instance of the appellant points out towards the guilty of the appellant. It is further contended that (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (8 of 18) [CRLAD-120/2021] the recovery of bloodstained pant of the appellant connects him with the alleged crime.
11. It is contended by the learned Additional Government Advocate that the learned trial Court has not committed any error in coming to the conclusion that the appellant is guilty for offence under Sections 376, 302 and 404 of IPC. With regard to Section 379 of IPC, the learned Additional Government Advocate has her own reservations. It is also contended that the circumstances draw a chain and except the appellant, the involvement of anyone else is not made out, hence, the learned trial Court has not committed any error or illegality in convicting the accused appellant.
12. We have considered the contentions raised by the learned counsel for the parties and have carefully gone through the material on record.
13. The case rests on circumstantial evidence. The law as laid down in regard to the appreciation of circumstantial evidence has been dealt with by the Apex Court in Sharad Birdhi Chand Sarda Versus State of Maharashtra: 1984 AIR 1622 and five golden principles have been laid down therein. The same are reproduced hereunder:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:(Downloaded on 11/11/2023 at 05:00:44 PM)
[2023/RJJP/006065] (9 of 18) [CRLAD-120/2021] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 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."
14. The first circumstance and the circumstance on which the learned trial Court has placed reliance is the CCTV recording wherein the appellant is seen in the temple premises with the deceased on the fateful day. The learned trial Court has placed reliance on Sonu @ Amar Versus State of Haryana: 2017 Cr.L.R. SC 901 and Shafhi Mohammad Versus The State of Himachal Pradesh: (2018) 2 SCC 801. It is also pertinent to note that the above judgments on which the learned trial Court has placed reliance were overruled and the learned trial Court has committed grave illegality in placing reliance on the overruled judgments. Section 65-B of the Evidence Act reads as under:
"65B. Admissibility of electronic records (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (10 of 18) [CRLAD-120/2021] mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the functions of storing or processing information for the purposes of any activities of any regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computer, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (11 of 18) [CRLAD-120/2021]
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
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(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.]"
15. As held by the Apex Court in Ravinder Singh @ Kaku Versus State of Punjab: 2022 LiveLaw (SC) 461, it is mandatory to produce a Certificate under Section 65-B of the Evidence Act whenever any electronic evidence is produced before the Court. In the present case, from the CCTV, the recording was taken on a pen-drive and the same has been produced as Article-1. In our considered view, the CCTV recording which has been produced in a pen-drive as Article-1, cannot be read in evidence. Though we are discarding the evidence pertaining to CCTV, still for the sake of argument, even if, we consider that the appellant was present at the temple on the fateful day, as per the CCTV recording, he left the temple at 11:50 AM and thereafter, there is no recording wherein both the appellant and the deceased were seen together.
16. The next circumstance which the Court has presumed against the appellant is that while he was not accompanying the deceased, he went off to purchase a knife. Statement of Kamlesh, who is seller of knife (PW-20) has been recorded, who has stated before the Court that he has sold one knife, but to whom knife was sold, this witness has not been able to depose. The purchase of knife is thus not established. Apart from this, the alleged knife was not produced in the Court during examination of the witnesses and as such the prosecution failed to produce the (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (13 of 18) [CRLAD-120/2021] physical evidence (best evidence), therefore, non-production of knife during the course of trial would be fatal for the prosecution.
17. Learned trial Court has also held that when Hari - Caretaker of the Dharmshala saw the appellant leaving the Dharmshala in a perplexed manner, he went to the room and then came running, however, there is no evidence on record that Hari, Caretaker of the Dharmshala, went to the room on seeing the appellant leaving the Dharmshala in a perplexed manner. The trial Court has built up a case without there being any evidence that Hari went to the room after seeing the appellant leaving the Dharmshala in a perplexed manner.
18. The only evidence, which now remains as relied upon by the learned trial Court is the statement of Kallo (PW-29), who has stated that she had seen the appellant paying Rs.130/- to Hari for rent of the room and that she had seen the appellant going with the deceased in the room at 12:00 noon. She has also stated that at 06:00 PM the appellant left the Dharmshala in a perplexed manner. As to what weight the evidence of Kallo (PW-29) carries is to be seen by the Court. It is to be noted that Shanti (PW-1), who is mother of Kallo (PW-29) has stated that Kallo (PW-29) was living with co-accused Virendra as husband and wife. The possibility that Kallo (PW-29) has tried to save Virendra cannot be ruled out. The witness cannot be said to be of sterling worth as she has herself admitted in her cross-examination that the police has forced her to become a witness and to give evidence in the case. This witness has also not narrated anything with regard to (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (14 of 18) [CRLAD-120/2021] the disposal of the dead body by Hari and Virendra and surprisingly, no question was put to the witness in this regard.
19. With regard to the above, reliance is placed on Anjan Kumar Sarma and Ors. Versus State of Assam: AIR 2017 SC 617, wherein the Hon'ble Supreme Court has held in Para 18 as under:
"18. The circumstance of last seen together cannot by itself form the basis of holding the Accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan: (2014) 4 SCC 715 this Court held that:
12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the Accused who committed the crime. There must he something more establishing connectivity between the Accused and the crime. Mere non-
explanation on the part of the Appellant, in our considered opinion, by itself cannot lead to proof of guilt against the Appellant.
15. The theory of last seen-the Appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the Appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the Accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan: (2010) 15 SCC 588."
20. The learned trial Court has acquitted Virendra and has held that someone might have disposed of the dead body. In a case pertaining to rape and gruesome murder, the shifting of the dead (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (15 of 18) [CRLAD-120/2021] body in the plastic bag from Dharmshala to the adjoining lane is a very material piece of evidence and having acquitted Virendra for offence under Section 201 IPC, as to how body reached the lane is not established before the Court and the Court has only assumed that someone must have disposed of the dead body. The identify of person responsible for disposing the dead body has not been dealt with by the learned trial Court. In a case of rape and murder, the disposal of the dead body is only in the benefit of the person committing the crime, who would like to get rid of evidence pertaining to the crime. Initially, as per the prosecution case, the dead body was shifted by Virendra and Hari and then they washed the room and carried the dead body in the plastic bags to the adjoining the lane, which is at a distance of more than 85 feet from the room. It is pertinent to note that once the police had come to the conclusion that the dead body was disposed by Hari and Virendra, it was the duty of the Investigating Officer to collect the bloodstained clothes of Hari and Virendra, who had disposed of the dead body. The possibility of Hari and Virendra committing the crime cannot be ruled out.
21. It is further pertinent to note that from the FSL report (Exhibit-P-39), two blood groups are found on the blood recovered from the site i.e. Blood Group 'AB' and Blood Group 'B'. There is no story coming forth as to how two blood groups were found in the blood, which was recovered from the room. The possibility that the person, who committed the rape and murder, sustained injuries while committing murder and amputating the legs of the deceased, cannot be ruled out during murder and amputation. There is likelihood that the offender injured himself and some (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (16 of 18) [CRLAD-120/2021] blood must have dropped from his body. This theory has not at all been investigated by the Investigating Team. The sample of the blood of Virendra and Hari was not obtained by the Investigating Officer and was not sent for analysis. The possibility that Virendra and Hari were involved in the rape and murder cannot be ruled out.
22. The next circumstance which as per the prosecution is the main circumstance is recovery of Kaddas from the house of the appellant. In this regard, it is important to note that information (Exhibit-P-53) under Section 27 of the Evidence Act was given by the appellant on 03.02.2018. In the information, it was mentioned that "eSaus pkanh ds dM+s ¼[kM+ok½ o eSjh iSUV rFkk eksVj lkbZfdy ?kj xaxkuxj flVh esa Nqik j[kh gS] tks py dj crk ldrk gwaA". In pursuance of this information recovery was effected, vide Exhibit-P-8 a pant was recovered, vide Exhibit-P-9 Kaddas were recovered and vide Exhibit-P-10, a motorcycle was recovered. The place where pant and Kaddas were concealed was not mentioned in information (Exhibit-P-53) given under Section 27 of the Evidence Act.
23. Witness Kamlesh Yogi (PW-5) in his cross-examination admitted that at the time of recovery, the accused was not there. The only inference that can be drawn from this is that the recovery was not made at the instance of the accused since the place where Kaddas and pant were concealed was not mentioned in the information given under Section 27 of the Evidence Act. Thus, the recovery effected in pursuance to the information under Section 27 of the Evidence Act does not inspire any confidence. It is also pertinent to note that Kallo (PW-29) has admitted that the (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (17 of 18) [CRLAD-120/2021] deceased and the appellant used to come to the temple quite often, as such, there was no enmity between them and they were regular visitors to the temple. From the statement of Kallo (PW-
29), it is also revealed that when the appellant left the Dharmshala, he was not carrying anything and he was wearing white shirt and muffler which he was wearing in the morning. The recovery of shirt and muffler from near the place of occurrence cannot be said to be one, which the appellant was wearing in the morning of the fateful day.
24. The recovery of Kaddas cannot also be considered to be a relevant piece of evidence for the very reason that the same was not put to the relatives of the deceased to establish that the Kaddas belonged to the deceased. No test identification of the alleged Kaddas was got done and even it was not put to the witness during the court proceedings.
25. From what we have discussed herein-above, it is evident that the prosecution has failed to establish a chain to connect the accused appellant with the alleged offence and since the chain is not formed, the accused appellant is entitled for acquittal. We, therefore, deem it proper to quash and set aside the judgment of conviction dated 09.07.2021 and order of sentence dated 12.07.2021. The appellant is acquitted of the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose. The appeal is, accordingly, allowed.
26. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance (Downloaded on 11/11/2023 at 05:00:44 PM) [2023/RJJP/006065] (18 of 18) [CRLAD-120/2021] with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
27. In view of the disposal of the main appeal, application for suspension of sentence and other pending application, if any, stands disposed of.
(ANIL KUMAR UPMAN),J (PANKAJ BHANDARI),J
SUNIL SOLANKI/PS
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