Rajasthan High Court - Jodhpur
Panna Lal vs State on 13 December, 2018
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 721/2016
Panna Lal S/o Sukha Banjara, R/o Gojunda, P.S. Gangrar, District
Chittorgarh (Raj.)
(Presently lodged at Central Jail, Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. R.K. Charan.
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Date of Judgment: 13/12/2018
(By the Court: Per Hon'ble Mehta, J.)
The appellant Panna Lal stands convicted and sentenced as below vide Judgment dated 18.07.2016 passed by the learned Additional Sessions Judge (Women Atrocities Act Cases), Bhilwara in Sessions Case No.27/2012:-
Offences Sentences Fine Fine Default
sentences
Under 10 Years' Rigorous Rs.3,000/- 1 Month's Simple
Section Imprisonment Imprisonment
364 IPC
Under 7 Years Rigorous Rs.3,000/- 15 days' Simple
Section Imprisonment Imprisonment
397 IPC
Under Life Imprisonment Rs.5,000/- 1 Month's Simple
Section Imprisonment
302 IPC
Under 3 Years' Simple Rs.1,000/- 7 Days Simple
Section Imprisonment Imprisonment
201 IPC
All the sentences were ordered to run concurrently.
(2 of 13) [CRLA-721/2016] Being aggrieved of the aforesaid judgment, he has preferred the instant appeal under Section 374(2) Cr.P.C.
Facts in brief are that the complainant Narayan Keer lodged a written report (Ex.P/25) at the Police Station Hameergarh on 02.12.2011, at about 09.15 am. alleging inter alia, that his daughter Asha aged 25 years and her friend Rekha daughter of Kanhaiya Lal Keer, who used to reside in neighbourhood, had gone to Hameergarh on the previous evening at about 06.00 pm. for purchasing clothes because Asha's earlier husband had severed relations with her and thus, Asha was to be given in Naata to someone else. Thus, both had gone to Hameergarh for purchasing clothes. They did not return home till next morning. The first informant received information at about 07.30 am that a deadbody had been found in the veterinary hospital located in the premises of Panchayat Hameergarh. He went there and identified the deadbody to be of Asha who was killed by slitting her throat. Rekha was also missing. He suspected that Rekha might have been kidnapped and something untoward must have happened with her as well.
On the basis of this report, an FIR No.186/2011 was registered at the Police Station Hameergarh and investigation was undertaken by Hemraj (PW-37) SHO, Police Station Hameergarh. The deadbody of Smt. Asha was subjected to postmortem. During the course of investigation, the call details of mobile phones allegedly used by Asha, that of the appellant and a few other mobile numbers were sought for and procured. Based whereupon, the needle of suspicion pointed towards the appellant. Shri Hemraj received an information from the Police Station Khachola (3 of 13) [CRLA-721/2016] regarding deadbody of a girl lying in a dry well within the territorial jurisdiction of Police Station Kachhola upon which, the SHO went to the well in question with Raju husband of Rekha. The SHO, Kachhola met them. The deadbody of the woman had been taken out from the well and was lying on a charpai. Raju identified the body to be of his wife. Various circumstances seen around the deadbody were noted. The blood stained apparels, etc. of the deceased were seized. The investigating officer claims to have received information that the appellant had taken Rekha and Asha on his motorcycle on 01.12.2011. The call details of the mobile phones in use of Rekha and Pannalal were also collected. Kailash Salvi (PW-21) gave a statement to the investigating officer that he had seen the appellant going with the deceased lastly whereupon, the appellant was arrested on 06.12.2011 vide arrest memo (Ex.P/80). A mobile phone of Lava Company was recovered from the accused. Acting in furtherance of the information provided by the accused under Section 27 of the Evidence Act, the investigating officer claims to have recovered the knife allegedly used by the accused for committing murders of Asha and Rekha by slitting their throats. A pair of silver kadiyas allegedly worn by Rekha which were taken off from her body after the murder, were also recovered by the investigating officer on the basis of very same information provided by the accused under Section 27 of the Evidence Act. The knife as well as the silver kadiyas were seized and sealed. The T-shirt and pant allegedly worn by the accused at the time of murders, were also recovered in furtherance of the information provided by him to the investigating officer under Section 27 of the Evidence Act. The places of incident were also verified in furtherance of the informations given by the accused to (4 of 13) [CRLA-721/2016] the I.O. under Section 27 of the Evidence Act. The Hero Honda Splendor motorcycle bearing registration No.RJ-06-SQ-0448 allegedly used for abduction of the girls was also recovered from a shed in the house of the accused and the bag attached to the motorcycle allegedly stained with blood was detached and was seized. After thorough investigation, it came to light that the mobile phone held by Asha had been provided to her by the accused Panna Lal as the sim inserted therein was issued in the name of Pannalal. The mobile number 9829543494 being used by Pannalal had been purchased in the name of his father. The Customer I.D.s of both the mobile sims were collected. The seized silver kadiyas were subjected to test identification at the hand of Rekha's mother Kanchan and mother-in-law Smt. Nandu. The blood stained articles recovered from the deadbodies and on the informations provided by the accused were forwarded to the FSL for chemical and serological examination from where, a report was received to the effect that the blood stains on the T-shirt, pant, knife and the bag of the motorcycle recovered at the instance of the accused was 'B' Positive and the same matched with the blood group of the deceased Smt. Asha. After investigation, the I.O. concluded that the accused had abducted and killed the two women with intention of looting their ornaments. Accordingly, charge-sheet was filed against the accused appellant for the offences under Section 364, 397, 201 and 302 IPC. As all the offences were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Bhilwara from where, it was transferred for trial to the Court of learned Additional District Judge (Women Atrocities Act Cases) Bhilwara. The Trial Judge framed charges against the appellant for the above (5 of 13) [CRLA-721/2016] offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 37 witnesses in support of its case. Upon being confronted with the prosecution case in his statement recorded under Section 313 Cr.P.C., the accused denied the same and claimed that he had been falsely implicated. One witness Sohanlal was examined in defence. Upon conclusion of the trial, the learned trial court proceeded to convict and sentence the appellant as above. Hence this appeal.
Shri R.K. Charan, learned counsel representing the appellant vehemently and fervently urged that the prosecution has failed to lead clinching and convincing evidence so as to form a complete chain of circumstances pointing towards the guilt of the accused appellant. He urges that the witness of last seen being Kailash (PW-21), did not support the prosecution story. He drew the Court's attention to the cross-examination of the investigating officer more particularly the following parts thereof:
"....;g lgh gS fd i=koyh esa ,slh dksbZ lk{; ys[kc) ugha dh xbZ ftlls ;g lkfcr gks fd nksuksa e`rdk o iUukyky ,d gh QSDVªh esa lkFk dke djrs gksA iUukyky fdl QSDVªh@dEiuh esa Bsdsnkjh ls etnwj ys tkrk gS bl lEcU/k esa dksbZ vuqla/kku ugha fd;kA
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--------- iUukyky dks 6 fnlEcj dks fxj¶rkj fd;k x;k FkkA bl i=koyh esa iUukyky ds vk"kk o js[kk ds lkFk gksus dh ckr xokg dSyk"k lkyoh us crkbZ FkhA dSyk"k lkyoh us ftl eksVjlkbZfdy ij iUukyky }kjk vk"kk o js[kk dks gehjx< ls cSBkdj ys tkuk crk;k og eksVjlkbZfdy rQrh"k esa iUukyky dh ikbZ xbZ tks mlus vius HkkbZ ds uke ls [kjhn j[kh Fkh ftldks ysdj eSus vkjVh vks ls okgu Lokeh ds uke dk irk yxk;k Fkk tks iUukyky ds HkkbZ ds"kqyky ds uke ls ntZ gSA iUukyky ds ifjokj esa dkSu dkSu lnL; gS bl ckjs esa xgurk ls irk ugha fd;k] eksVs rkSj ij mlds HkkbZ] ekrk&firk vkfn gksus dh tkudkjh feyhA iUukyky ds edku esa dkSu dkSu jgrs gS bl ckjs esa iapk;r ls dksbZ fjdkWMZ ugha fy;kA ftl le; iUukyky ds edku ij mldh bRryk vuqlkj ysdj x;k rc eksrfcj o mlds ifjokj dh 1&2 vkSjrs ekstwn Fkh] (6 of 13) [CRLA-721/2016] mu vkSjrksa ds uke eSaus QnZ ij vafdr ugha fd;sA ftl isVh ls iUukyky dh bRryk ls pkdw eSus iUukyky }kjk fudky dj nsus ls cjken fd;k ml iSVh dks eSaus tCr ugha fd;kA ml isVh dk QnZ esa foLr`r fooj.k vafdr ugha fd;kA mDr isVh ij rkyk yxk gqvk Fkk] rkyk fdl izdkj dk Fkk ;g eS vc ugha crk ldrkA eq[; edku ds ftl dejs ls pkdw iUukyky us cjken djok;k ml eq[; edku ds dksbZ rkyk ugha yxk Fkk] D;ksafd edku [kqys esa gSA dejs esa j[kh isVh dks iUukyky us Lo;a us [kksyk Fkk] isVh dk rkyk Hkh iUukyky us [kksyk Fkk] pkch iUukyky us dejs esa ls gh [kqn dh fNikbZ gqbZ Fkh ftls ysdj rkyk [kksykA ml dejs ls gh pkch iUukyky }kjk <w<dj rkyk [kksyus dh ckr QnZ esa fy[kh gqbZ ugh gSA ftl edku ij igqpsa ml edku ds ,d rjQ edku gS vkSj nwljh rjQ [kkyh txg gS] ml iMkSlh dk uke uD"ks eksds esa vafdr gksuk pkfg;s] uD"kk ekSdk ns[kdj dgk fd edku vkseizdk"k o izoh.k lqokydk dk Fkk] ftuds c;ku eSus ugh fy;sA cjkenxh LFky uD"ks eksds izn"kZ ih 12 ij izoh.k vkSj vkseizdk"k ds gLrk{kj ugha gSA cjkenxh okyk edku iUukyky dk gh gksus ckcr xzke iapk;r ls dksbZ nLrkost ugha ns[ksA iUukyky cjkenxh okys edku esa gh jgrk gks bl ckcr vyx ls rLnhd ugha djokbZA ;g lgh gS fd Hkxor flag vkSj ykyflag esjs gh Fkkus esa rSukr Fks] tks tkap esa le; le; ij esjs lkFk jgs FksA ;g lgh gS fd ukjk;.k }kjk ,Q vkbZ vkj fy[kokus ds ckn eSus yMfd;ksa dh dkWy fMVsy fudyokdj eqyfte dk irk yxkus o e`rd js[kk dk irk yxkus dk iz;kl fd;k FkkA
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---------------------------------------------------------------------------------------------------------------------------- ;g lgh gS fd tks tsojkr e`rdk js[kk ds iUukyky us mldh gR;k dj ywVs Fks o iUukyky ls cjken gq;s oSls js[kk o vk"kk ds ifjokj o lekt esa igus tkrs gSA js[kk ds tsojkr ywVus dk ,Q vkbZ vkj esa vadu ugh gSA ;g dguk xyr gS fd esjs vuqla/kku esa ;g ugh vk;k gks fd js[kk dh gR;k fdlus vkSj dgka dhA izn"kZ ih 89 o ih 23 tc rS;kj dh xbZ ml le; eqyfte iqfyl dLVMh esa FkkA izn"kZ ih 23 esa tks ch LFkku ij dqavk n"kkZ;k gS og lw[kk FkkA
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-- e`rdk vk"kk ds ikl eksckbZy dh eq>sa iq[rk tkudkjh ugha gSA vt [kqn dgk fd vk"kk ds ikl eksckbZy Fkk tks eqyfte iUukyky dk fnyk;k gqvk FkkA iUukyky us vk"kk dks eksckbZy dc fn;k bl ckjs esa rQrh"k esa le; ds ckcr iq[rk tkudkjh ugha gqbZ] eksckbZy esa vk"kk ds ikl ,;jVsy daiuh dh fle Fkh] mDr eksckbZy lsV fdl daiuh dk Fkk ;g tkudkjh esa ugh gSA ;g lgh gS fd yk"k ds ikl ls eksckbZy ugh feyk FkkA----"
(7 of 13) [CRLA-721/2016] He further urged that from the date of incident i.e. 02.12.2011 till 06.12.2011, the accused was a free bird and thus, there was no reason as to why he would retain the worthless articles in form of blood stained clothes and knife with him and preserve them in form of incriminating evidence for the Police to recover later. He urges that since, the accused was at large, had he been the murderer, he would certainly have destroyed these articles as he was having ample opportunity to do so. He contended that there is no allegation of the prosecution that the accused did not have the opportunity of removing blood from his clothes or of disposing of the knife and that a case of blind murder has been deliberately thrust down upon the accused because he was suspected to be having an affair with Smt. Asha. Shri Charan submitted that the prosecution could not prove the circumstance of last seen because witness Kailash (PW-21) did not support the prosecution story. The trial court placed reliance on three circumstances to record conviction of the accused,
(i) the call detail records which indicated that the accused was in touch with the deceased Asha and that the mobile used by him was working near and around the place where the deadbodies were found,
(ii) recovery of the silver kadiyas alleged to be of Smt. Rekha, and
(iii) the FSL report indicating that the articles recovered at the instance of the accused were stained with human blood of 'B' Group origin i.e. the same as that of the deceased Asha.
As per Shri Charan, the learned trial court committed grave legal and factual error while placing reliance on these circumstances. As per him, the call detail records Ex.P/67 & Ex.P/99 are inadmissible in evidence for the reason that the same (8 of 13) [CRLA-721/2016] are in the form of simple print outs forwarded from the S.P. Office to the Police Station Hameergarh. Not only did the prosecution fail to procure the mandatory certificate under Section 65B of the Evidence Act from the service provider but as a matter of fact, the call detail records do not bear any verification or certification so as to satisfy the Court that the same were actually issued by the service provider. Thus, as per Shri Charan, the call detail records cannot be taken into account. Regarding the blood stained silver kadiyas recovered at the instance of the accused, Shri Charan contended that the witnesses Smt. Nandu (PW-15) and Smt. Kanchan (PW-16) identified these kadiyas. Smt. Nandu, who is the mother-in-law of Smt. Rekha, admitted in her cross-examination, that Rekha had gone from her Peehar and she was not aware as to the details of the ornaments and clothes which Smt. Rekha was wearing when she left her father's house. The witness also admitted in cross-examination that all females of Keer caste wear similar kadiyas. Thus, as per Shri Charan, the identification of the kadiyas by this witness is inconsequential and irrelevant. Regarding the identification of the kadiyas by Smt. Kanchan (PW-
16), Shri Charan submitted that the witness admitted in her cross- examination that the police told her that she had to identify these kadiyas on which, she identified the same. Thus, he implored the Court to discard the recovery of the silver kadiyas allegedly made at the instance of the accused as being concocted. Regarding the recovery of the blood stained clothes made at the instance of the accused, Shri Charan urged that the accused, was a free bird between 02.12.2011 till 06.12.2011 when he was arrested and thus, it is inconceivable to believe that he would retain and not destroy the worthless blood stained clothes, the knife and the (9 of 13) [CRLA-721/2016] blood stained bag of the motorcycle so as to have the same recovered and used as evidence against himself at a later stage. He thus urges that the recovery of these blood stained articles is unbelievable and was concocted by the I.O. to somehow prove the case. On these grounds, he implored the Court to accept the appeal, set aside the impugned Judgment of conviction of the appellant and direct that he be released from custody.
Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by Shri Charan. He urged that the needle of suspicion was rightly pointed toward the appellant because he was having an affair with both the girls. The appellant was seen taking both the girls from village but, unfortunately, the witness relating to the circumstance of last seen turned hostile. However, as per the learned Public Prosecutor, the remaining circumstances viz. recovery of the silver kadiyas; the recovery of the blood stained articles of the accused having the same blood group as that of the deceased as well as the call detail record establish a complete chain of circumstances sufficient to bring home the guilt of the accused. Thus, he craved dismissal of the appeal.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and have minutely sifted the evidence available on record.
The case of the prosecution hinges entirely on circumstantial evidence. Though the prosecution tried to portray that the accused was carrying on an affair with the two murdered girls but the said aspersion is purely conjectural and none of the prosecution witnesses could give firm evidence to this effect. The prosecution (10 of 13) [CRLA-721/2016] tried to lend credence to this circumstance by claiming that the mobile sim No.7742634186 being used by Asha had been provided to her by the accused appellant. True it is that as per the service provider's record, this sim had been issued to the appellant, but, there is no plausible evidence on record to establish and satisfy the Court that the deceased Smt. Asha was using this sim. The call detail records Ex.P/67 & Ex.P/91 exhibited by the prosecution at the trial are totally inadmissible in evidence because neither do bear the certification or authentification by the service provider nor did the prosecution lead any evidence to establish that the call detail records were transmitted to the police authorities by the service provider. Furthermore, no certificate under Section 65B of the Evidence Act was procured and proved in support of the call details. Om Singh (PW-23), Constable of the S.P. Office, Bhilwara simply gave evidence to the effect that a letter was received from the P.S. Hameergarh for summoning these call details. The call details were procured and were forwarded to the Police Station Hameergarh. However, no corresponding communication held between the service provider and the S.P. Office was placed on record/ proved so as to conclusively establish that the call details were exhibited with substantial compliance of the mandatory requirement under Section 65B of the Evidence Act.
In this background, this Court is of the firm opinion that the trial court committed grave legal error in placing reliance upon and admitting in evidence, the call detail records (Ex.P/67 & Ex.P/91) which are totally inadmissible. It is further relevant to mention here that the constable Om Singh (PW-23) did not himself exhibit the call detail records and same were exhibited as (Ex.P/67 & Ex.P/91)) in the statement of the investigating officer (11 of 13) [CRLA-721/2016] Hemraj (PW-37). Thus, the inference sought to be drawn by virtue of the CDRs (Ex.P/67 & Ex.P/91)) so as to lend credence to the circumstance that the accused was in touch with the two deceased women through mobile conversations and that his location was close by to the place where the deadbodies were recovered in the suspected period in which, the offence was committed, is without any foundation as the CDRs cannot be read in evidence.
Now coming to the evidence of recoveries made at the instance of the accused. The occurrence took place in the intervening night of 01.12.2011 and 02.12.2011. The accused was arrested on 06.12.2011 and during the intervening period, he was a free bird having ample time and opportunity to destroy the incriminating pieces of evidence which are in form of his own blood stained clothes, the knife and the bag of the motorcycle having no significant monetary value. If at all, the accused had murdered the ladies, then it does not stand to reason as to why he would preserve the same in his own house so as to give the opportunity to the investigating officer to recover it later and create evidence against himself. Thus, the circumstance of recovery of the blood stained articles of the accused cannot be relied upon.
The last remaining incriminating circumstance on which, the trial court placed reliance is the recovery of silver kadiyas allegedly worn by the deceased Rekha at the instance of the accused. The silver kadiyas were recovered in furtherance of the information provided by the accused to the investigating officer under Section 27 of the Evidence Act i.e. Ex.P/85 which was recorded on 06.12.2011. The information reads that the silver kadiyas weighed 1 Kg. The recovery was effected on the same day (12 of 13) [CRLA-721/2016] i.e. 06.12.2011 at 03.30 pm., vide recovery memo (Ex.P/11) wherein, the weight of the kadiyas is recorded as 288 gm. only.
None of the prosecution witnesses, disclosed the weight of the silver kadiyas during investigation. Smt. Nandu being the mother-in-law of the deceased Smt. Rekha categorically stated in her examination-in-chief that the kadiyas which the Rekha was wearing were 1 Kg. in weight. On the contrary, the silver kadiyas recovered at the instance of the accused weighed 288 gms. only as per the recovery memo (Ex.P/12). In this background, the evidence of recovery of silver kadiyas at the instance of the accused also comes under a grave cloud of doubt and cannot be relied upon.
Hon'ble the Supreme Court in the case of Chandran vs. The State of Madras, reported in AIR 1978 SC 1574, in identical facts and circumstances, held as below:
""36. Mr. Altaf Ahmed contends that there was reason to suspect that the story of the recovery of these blood-stained clothes of the deceased at the instance of the appellant was a fabrication because firstly, these clothes were found on the dead body of the deceased on January 7, 1974 and secondly, the appellant was not a lunatic to keep these useless incriminating articles in his house for 23 days after the murder.
37. We find merit in this contention. In the first place, it is in the evidence of Sundarambal (P. W. 2), that when she along with others went to see the dead body of the deceased at the scene of occurrence, the sari and the jacket were on the dead body. Secondly, neither in the statement (Ex. P. 10), nor in the Mahazar (Ex. P. 14) is there any mention that these clothes were found blood-stained. Thirdly, there is a discrepancy between the statement (Ex. P. 10) and the Mahazar (Ex. P. 14), inasmuch as the former speaks of the Sari of the deceased in addition to the Kaili of the deceased, and the towel, but in the Mahazar there is no mention of the Sari, but only of the Kaili of the deceased. Fourthly, it does not stand to reason that the appellant would preserve and keep these worthless incriminating articles in his house for 23 days after the murder."
(13 of 13) [CRLA-721/2016] Testing the facts of the case at hand on the touch stone of the ratio of the above Supreme Court Judgment, we are of the firm opinion that the prosecution has miserably failed to prove its case by establishing a complete chain of circumstances so as to bring home the guilt of the accused. Rather, we are of the view that not even a single of the three alleged incriminating circumstances could be proved by the prosecution by leading plausible evidence.
In view of the discussion made herein above, this Court is of the opinion the appellant deserves to be acquitted by giving him the benefit of doubt.
Accordingly, the appeal is allowed. The impugned Judgment dated 18.07.2016 passed by the learned Additional Sessions Judge (Women Atrocities Act Cases), Bhilwara in Sessions Case No.27/2012 is hereby quashed and set aside. The accused is acquitted of all the charges. He is in custody. He shall be set at liberty, if not wanted in any other case.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
Tikam Daiya/-
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