Rajasthan High Court - Jodhpur
Virendra @ Raju @ Kaka @ Bishniya vs State (2024:Rj-Jd:48455-Db) on 27 November, 2024
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2024:RJ-JD:48455-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 587/2009
Virendra @ Raju @ Kaka @ Bishniya son of Tegar Ram, resident
of village Gametan, Police station Biharigunj, District Madhepura
(Bihar)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. DS Gharsana
For Respondent(s) : Mr. N.K. Gurjar, AAG
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE MADAN GOPAL VYAS Oral Judgment 27/11/2024 Per, Shree Chandrashekhar, J.
In Sessions No.52/2007, Virendra @ Raju @ Kaka @ Bishniya has been convicted and sentenced to life imprisonment with fine of Rs.2,000/- under Section 302 read with Section 120-B of the Indian Penal Code, Simple Imprisonment for 10 years and fine of Rs.2000/- under Section 460 of the Indian Penal Code, Simple Imprisonment for 2 years and fine of Rs.1,000/-, Simple Imprisonment for 10 years and a fine of Rs.2,000/- under Section 328 read with Section 120-B of the Indian Penal Code; all sentences are with default stipulations.
2. The prosecution case as narrated by Ashok Gupta in his written report was that in the intervening night of 5th April 2007 his brother Alok Gupta was murdered. On receiving a telephonic call at around 06:50 a.m. on 05th April 2007 from Indra Chaturvedi, the informant rushed to the house of his brother (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (2 of 10) [CRLA-587/2009] where he found that his sister-in-law Kumud Gupta was lying on a Sofa in unconscious state and the dead body of his brother was on the floor with blood all around. On the basis of the written report of Ashok Gupta, a crime was registered vide case no.86 of 2007 against Ajay and unknown persons. After the investigation, a charge sheet was presented in the Court against four persons out of whom one accused was declared juvenile and his records were separated. The investigation against other two accused persons was kept pending at the time when the appellant was sent up to face the trial on the charge under Section 460, 302, 120-B, 328, 381 of the Indian Penal Code. In the trial, the prosecution examined 18 witnesses out of whom Kumud Gupta is the prime witness for the prosecution. The appellant set up a defence that the police arrested him and forcibly got his thumb mark over the plain paper at the police station and no recovery was made by the police at his instance.
3. The Sessions Judge referred to the prosecution evidence and cross-examination of Kumud Gupta who was examined as PW-9 and came to a conclusion that the charge as framed against the appellant was not proved. The Sessions Judge dealt with the arguments made on behalf of the defence as to failure of the Investigating Officer to put the recovered bangles and watch before PW-9 for identification in the following manner :-
"09. P.W.1 Sugan Chand has admitted to reaching the crime scene on 05.04.07 with the police officer and going to the police station with Ex.P.1 and returning to the crime scene with Memo FIR Ex.P.2. He has admitted to arresting the accused under cover on 15.04.07 and identifying the crime scene with his signature on Ex.P.3. He admits his signature on Ex.P.5 regarding the footprints dated 17.4.07. This witness has admitted his signature on Ex. P. (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (3 of 10) [CRLA-587/2009] 6, the seed of Dhatura. Similarly P.W.2 Kailash Kumar Thanvi has admitted to taking photographs of the crime scene Ex.P.7 to 18. P.W.3 P.W. 3 Meghraj is said to be the owner of the so-called house, according to whom tenants were living in the house below him. Munimji was among the tenants, but his real name is not known. This person was accompanied by two boys and a man. The boys were 17-18 years old and the man was 30 years old. One boy was called Raju and the other was called Virendra. At 1.30 in the afternoon, all four were at home. When they were asked why they did not go to work that day, they said that they would go at night because it was the season of weddings. The next day the house was closed. After two-three days, these people did not come home. There was a rumour in arena that a murder had taken place. Later it was found out that they had committed a murder. The police came to this witness's house with this matter. Regarding this accused present in the court, this witness has said that this is the same person who used to live on rent in his house. Although this witness has been declared hostile and he has said that a part of the police statement Ex. P. 19 is wrong. Similarly, P.W. 4 Bhura Ram has stated that on 50.04.07 he was working as a storehouse in-charge. Then the police officer deposited 16 packets in the store room which were entered in Ex. P. 20. On 07.04.04, 4 sealed jars were deposited through Ex. P. 21, two sealed packets were deposited on 14.7.07 through Ex. P. 22 and on 28.04.07 three sealed glasses and a small bottle were deposited in the store room through Ex. P. 23. These evidences were kept in a safe condition. Exp. P. 5 Bhupendra Chandra states that on 15.4.07 the police officer took two accused from the lock-up for identification and he went with Sugan Chand,Virendra and Sajan Kumar identified the crime scene, the report of which is Ex. P. 3 and the map of the crime scene is Ex. P. 4. According to Vinod Kumar (P.W. 6), the police had taken the footprints of the accused by putting sand in his presence, the memo of which is Ex.P.5 on which his signature is there. P.W. 7 Arvind Kumar has stated that on the day of the incident he had gone to the spot with the SHO. Many types of police proceedings were done in his presence. He has accepted that he has signed on Ex.P. 24. He too had gone to Bihar with Guru Bhupendra on the instructions of his senior officers. He came to Bikaner with the accused in a bag and handed him over to the SHO. P.W. 8 Rameshwarlal is also a police witness, who has stated that on 11.04.2007 he had gone to Bihar with the police team and the (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (4 of 10) [CRLA-587/2009] accused was arrested from Bihariganj railway station and memo Ex.P. 25 was made. A wrist watch and gold bangle were recovered from the accused through Ex.P. 26. PW 11 Seema Kothari, while supporting the statements of PW 9 Kumud Gupta, has stated that on 01.04.07 itself, accused Kaka alias Virendra had come to her with three boys and then she took them to Mrs. Kumud Gupta's house and later heard that Kumud had hired Ajay as a servant. They committed the murder at night and went away. This witness has admitted knowing accused Virendra beforehand and that PW 43 identification was in front of him. PW 12 Bhala Ram is also a police witness who had deposited 13 packets in FSL on 05.04.07 and he has stated that he brought receipts Ex.P. 44, 45 and 46 and deposited five sealed packets in the forensic science laboratory on 26.5.07 and brought receipts Ex.P. 47, 78 and 51 and handed them over to the police station officer. P.W. 13 According to Dr. O.P. Saini, when he examined Mrs. Kumud Gupta on 05.04.07, her pulse was 124 per minute and blood pressure 140/84 and the patient was conscious. According to this witness, Kumud ji was complaining of nausea and vomiting and dizziness. Injury report Ex.P. 52 was prepared. P.W. 14 Dr. P.K. Saini examined the body of deceased Alok Gupta on 05.04.07 with another fellow doctor and found a total of 10 injuries on his body. Regarding these injuries, this witness states that these injuries were antemortem and injury No. 10 was caused by the noose around the neck. The deceased died due to suffocation caused by strangulation before death. This act was sufficient to cause death in the ordinary course of nature. The postmortem report is Ex. P. 53, which this witness has admitted to have prepared."
4. The argument raised on behalf of the appellant that the FSL report does not connect him with the chance print was not accepted by the Session Judge for the following reason :-
"18. Learned counsel for the accused also argues that the chance print does not match with the report of the forensic science laboratory. Therefore, the accused cannot be linked to this incident. The same argument has been given in relation to the male hair recovered from near the dead body. In continuation of this argument, a perusal of the file reveals that footprints have been taken through Ex.P. 5, hair of the head through Ex.P. 38 and footprints through Ex.P. 39 and chance print through Ex.P. 41.(Downloaded on 20/12/2024 at 09:39:56 PM)
[2024:RJ-JD:48455-DB] (5 of 10) [CRLA-587/2009] According to the investigation report of the Finger Print Bureau, Ex.P. 73, the photographs of the chance prints were found to be illegible as they were not readable and they could not be matched with the prints of accused Virendra alias Kaka. It is also worth mentioning here that before the arrival of senior police officials and investigation officer PW 18 Rajendra Singh, relatives and other persons had reached the crime scene. The possibility of tampering with the evidence of the spot by these persons cannot be ruled out. Therefore, the chain of crime committed by the accused cannot be said to have been broken due to the chance print being illegible. The learned advocate of the accused also argues that the so-called watch recovered from the accused is available at cheaper rates in the market and it has been added to the list of stolen goods later. The learned Additional Public Prosecutor and the learned advocate of the complainant have said in refutation of this argument that the list of stolen/robbed goods was prepared by Ex.P. 27, son-in-law of Smt. Kumud Gupta, in which the watch was mentioned along with other goods. On this point, when I perused the file, it appears that PW 9 Smt. Kumud Gupta has said in her original examination that I did not know anything at that time. Then after two-three days my son-in-law after asking me made the list of the items (Ex.P. 27). From the perusal of Ex.P. 27 it appears that the entire list of the missing items is in the same handwriting. Hence it cannot be said that it was added later. It is also appropriate to mention here that the accused has not claimed ownership of the watch and bangle. In his explanation under section 313 CrPC he has only said that he did not get any recovery done and the police had taken false thumb impression of him on many papers. Hence this argument appears to be baseless."
5. The doctor P.K. Saini who conducted autopsy over the dead body of Alok Gupta found the following injuries:-
"The deceased was of normal height. There was stiffness in the entire body. Post mortem staining was on the back of the body, both eyes were closed. Right eye was black, mouth was half open from which tongue was sticking out. Blood had accumulated on the nose. There was sinectasia in both eyes. Petechial hemorrhages were found on the face. Nails and mouth were blue. The following injuries were found on the body of the deceased-
1. A crushed wound measuring 2.5 x 1 cm was present on the back of the head.(Downloaded on 20/12/2024 at 09:39:56 PM)
[2024:RJ-JD:48455-DB] (6 of 10) [CRLA-587/2009]
2. A crushed wound measuring 4.1 cm x 1 cm was present on the head 2.5 cm ahead of injury no. 1.3. A bruise measuring 1.5 cm x 2 cm was present on the eyebrow of the right eye.
4. A bluish mark measuring 4 × 3.8 cm was present on the right ear and face.5. A crushed wound measuring 2x3 cm was present on the lower part of the left ear.
6. A crushed wound measuring 1x2 cm was present on the upper side of the left ear.
7. A crushed wound measuring 3.2 x 2 was present on the left side of the head, just behind injury no. 5.
8. A crushed wound measuring 2 x 5 cm was 4.3 cm above injury no. 7.
9. A cicatricial mark measuring 4.4 x 3 cm was present on the left side of the neck.
10. A noose mark measuring 36 x 3.5 cm was present transversely around the neck below the thyroid cartilage. It was deeper towards the front in a region measuring 4.2 x 2.1 cm. On opening the throat, clotted blood was found in the muscles and tissues of the neck, measuring 8 x 5 cm. Fracture of the hyoid bone on the left side was found. Mucous of larynx and trachea was congested."
6. The evidence of the doctor (PW-14) does not disclose that he observed any trace of poison in the body of the deceased. In fact, the doctor rendered an opinion that Alok Gupta died due to suffocation caused by strangulation. While so the charge under Section 328 of the Indian Penal Code must fail.
7. Kumud Gupta who is wife of the deceased tendered evidence in the Court that on a suggestion from her neighbor Seema Kothari, she picked up Ajay for doing household work. At that time, the appellant and Ajay were accompanied by two other persons who were willing to offer their services as servants for doing her household work. In the first information report, no doubt was raised on complicity of the appellant in the crime. It was only after the police arrested the appellant on 15 th April 2007 from Madhepura, his complicity in the crime surfaced. This is the case of the prosecution that at the instance of the appellant the bangles and watch belonging to Kumud Gupta were recovered from an iron box kept in the house of the appellant. The recovery (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (7 of 10) [CRLA-587/2009] memo has been prepared vide Exhibit-6 which was witnessed by Genu Paswan and Rameshwar Lal- PW-8. As to identification of the appellant, the evidence of PW-11 is revealing:-
"I received a call at my house on the 5th at 7:30, 7:45 in the morning. Kaka Bihari had come to our house two-three times earlier with a servant, so I know him as he hires servants. Kaka Bihari had employed a servant at my house a long time ago, who left after working for a month and a half. Kaka Bihari had never worked in my husband's factory. Then he said that this Bihari used to come to meet people. The three people whom Kaka had brought must be around 17-18 years old. Kumud Gupta had asked me to hire a boy of 16-17 years. I don't know the name of the servant Kumud had hired, later I heard from the children that the boy's name was Ajay. I don't know what the age of that servant was. I don't know what Kumud Gupta talked about with these four. I had introduced them to Kumud Gupta and immediately left for my home. In front of me, none of these four told Kumud Gupta their names. I don't remember the date on which I went to the jail for identification. I went to the jail for identification 15-20 days after the incident. My husband had told me that I have to go to the jail for identification. I went because he asked me to do so. My husband received a call for identification. I did not receive any notice regarding identification. I don't know if my husband received any notice. I went to Bichwal jail around 10-10:30. No one was with me while going to the jail except my husband. I went inside the jail alone. There was a judge sahab in the jail. There was an officer who was sitting on a chair. I don't remember his name. At the time of identification in the jail, apart from the accused, there were six-seven other people. Some of them were 25-30 years old or 50-60 years old, I don't know. I have met the accused uncle three-four times before 1 April 2007. My police statement was recorded, which was done when I went to Guptaji's house on the 5th, after his murder ."
8. As noticed above, the recovered articles were not identified by PW-9 and therefore the prosecution could not establish that the stolen articles belonged to the deceased. Kumud Gupta in her evidence in the Court stated that in the night she felt uneasy and (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (8 of 10) [CRLA-587/2009] sat on the bed and at that time her servant was also lying on the floor. She further stated that thereafter she became unconscious and after some time when she regained consciousness, she could observe that 3-4 persons had caught hold of her husband but she could not identify them or the weapon. She again became unconscious and admitted in the Court that she does not know what happened thereafter. In the cross-examination, PW-9 stated that :-
".................That day also Sumitra had cooked Lauki (Bottle- Gourd) and aloe-vera vegetable in the kitchen with Ajay. I and my husband had aloe vera and potato-cauliflower vegetable. Both Sumitra and Ajay had cooked aloe vera and Lauki (Bottle-Gourd) vegetable together. Poison was mixed in the potato-cauliflower vegetable. I can say this on the basis that I had made Ajay taste the aloe vera vegetable. After feeling dizzy, my hands and legs started trembling and my eyes started closing. I lay down on the bed. After lying down on the bed, I became semi-conscious, not unconscious. My husband did not tell me about feeling dizzy, but he told me about his hands and legs trembling. I cannot tell when he became semi-conscious. It is true that after becoming semi-
conscious, I was not in a position to recognize anyone. The witness herself further said that I could hear rustling sounds. When I opened my eyes with force, there was a slight blur in front of my eyes, there was no darkness. After I fell from the bed onto the floor and looked down, I was unconscious. Below me in the lobby was a bright blue dim light, less than zero watts. It is true that in that light, a person's face could not be seen normally, but I could feel that someone was standing and could move around in that light. It is true that I did not see the faces of the four men outside. I cannot say that the accused present in the court was also one of those persons. When my sister-in-law called out in the morning, I heard the voice and regained consciousness. At that time too I was semi-conscious, but I was better than last night. I fell down on the stairs because I was unable to stand and came rolling down. I again became unconscious after rolling down, but I felt that someone had picked me up. I cannot tell today who all came to my house at that time, who all relatives came. At that time, I had no (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (9 of 10) [CRLA-587/2009] communication with my relatives or neighbours in this regard. I do not know whether my sister-in-law called anyone or not. I regained consciousness in the hospital in the afternoon. Even at that time I was not fully conscious. I could recognize the people around me. At that time my sister-in-law and Anand, the son of a sister-in-law (Jethani), were with me in the hospital. After regaining consciousness in the hospital, I did not tell my sister-in- law and Anand anything about this incident. When the police came to me, I answered whatever questions they asked me according to my condition. The police interrogated me. They took some statements from me. I was unable to speak. I came to know about my husband's death in the hospital. When I gave my statement to the police, I had no idea what the servant had stolen from in my house. I was discharged from the hospital in the evening. I guess I did not go out of the house for 12 days after the incident. After 12 days, I started going out of the house. My son-in-law made the list. The bangles which were entirely of gold, had a design on it that did not contain lacquer . The 4 bangles weighed 70 grams, I cannot tell today what was the weight of one of them. I did not give the receipt of purchase of the items in Exhibit P.27 to the police, nor did we have a receipt. My son-in-law gave the list to the police. I do not have any receipt for my lost watch, I cannot tell which company's watch it was........"
9. A criminal trial is not like a fairy tale. This is the duty of the prosecution to establish a charge beyond all reasonable doubt. This is also primary in criminal jurisprudence that the accused must be identified clearly with sufficient cogent evidence on his complicity in the crime. As PW-9 goes on to say, repeatedly, that she became unconscious, she could not recognize the person outside the house, and that she does not know what happened to her husband thereafter, we must hold that the prosecution has failed to establish that the appellant was present on the place of the crime on the date and time of the occurrence. As to recovery of the bangles and watch, we would only indicate that recovery of the stolen articles from the possession of an accused cannot be (Downloaded on 20/12/2024 at 09:39:56 PM) [2024:RJ-JD:48455-DB] (10 of 10) [CRLA-587/2009] the sole ground to convict on the charge under Section 302 of the Indian Penal Code [refer, "Brijesh Mavi v. State (NCT of Delhi)"
(2012) 7 SCC 45].
10. As we gather from the records, It was the presence of the appellant with other 3 persons who visited the house of the deceased in search of employment that gave rise to doubt about his complicity in the crime. But then, suspicion howsoever strong cannot take the place of legal evidence. In "Sharad Birdichand Sarda v. State of Maharashtra" (1984) 4 SCC 116, Hon'ble the Supreme Court observed as under :-
"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law."
11. After having considered the materials on record, we have formed this opinion that prosecution has failed to establish the charge against the appellant. Therefore, the judgment dated 9 th June 2008 passed in Sessions Case no.62 of 2007 is set aside.
12. Consequently, the appellant is discharged from the liability of bail bond furnished by him pursuant to the order dated 02nd November 2018 passed in the present proceeding.
13. D.B. Criminal Appeal No. 587 of 2009 is allowed. (MADAN GOPAL VYAS),J (SHREE CHANDRASHEKHAR),J 47-Anshul/-
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