Rajasthan High Court - Jodhpur
Prabhu Lal vs State on 25 March, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
(1) D.B. Criminal Appeal No. 1228/2016
Suresh S/o Ratan Lal, by caste Jat, aged about 29 years,
resident of Napaniya, Police Station Bhadsauda, District
Chittorgarh.
(Lodged at Central Jail, Udaipur).
----Appellant
Versus
The State of Rajasthan.
----Respondent
Connected With
(2) D.B. Criminal Appeal No. 1013/2016
Prabhu Lal S/o Shri Ganesh, by caste Jat, Aged about 24 years,
R/o Napaniya, P.S. Bhadsauda, Distt. Chittorgarh (Raj.).
(Presently lodged in Distt. Jail, Chittorgarh)
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Deepak Menaria
Mr. Kalu Ram Bhati.
For Respondent(s) : Mr. Farzand Ali, AAG-cum-GA with
Mr. R.R. Chhaparwal, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
JUDGMENT
Judgment pronounced on ::: 25/03/2021
Judgment reserved on ::: 20/01/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants Suresh and Prabhu Lal have been convicted and sentenced as below vide judgment dated 28.09.2016 passed (Downloaded on 25/03/2021 at 08:52:23 PM) (2 of 30) [CRLA-1228/2016] by the learned Additional Sessions Judge, No.2, Nimbahera, District Chittorgarh in Sessions Case No.26/2015 (52/2013):
Offences Sentences Fine Fine Default Under Section sentences 302/120 IPC Life Imprisonment Rs.5,000/- 1 Month's S.I.
2. Being aggrieved of their conviction and sentences, the appellants have preferred these appeals under Section 374(2) Cr.P.C.
3. Since both these appeals arise out of a common Judgment, they have been heard and are being decided together.
4. Facts relevant and essential for disposal of the appeals are noted hereinbelow:
5. Mahaveer Singh (PW-1) submitted a written report (Ex.P/1) at the Police Station Bhadesar on 02.04.2013 alleging inter alia that his tube-well was located on the Bhadesar-Hoda Road near Dhaneshwar Mahadev Bus Stand. On the same day at about 06.30 AM., he had gone to his field where he saw that dead body of a young man was lying face down right besides the tube-well. Blood was splattered all around the dead body. The neck was cut by a sharp weapon and an incised wound was visible on the abdomen. The intestines were spilling out. On the basis of the report aforestated, an FIR No.48/2013 (Ex.P/42) came to be registered at the Police Station Bhadesar, District Chittorgarh for the offences under Sections 302 and 201 IPC.
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6. The SHO Durga Prasad Dadheech (PW-29) proceeded to the spot; inspected the dead body and prepared the Fard Surathaal Lash (Ex.P/3). On the basis of a voter I.D. card recovered from the pocket of the deceased, he was identified as Pushkar Lal son of Bhagwan Lal, resident of Napaniya, District Chittorgarh. A mobile phone found with the dead body, blood stained soil, control soil, a blood stained starter, the blood stained shirt of the deceased, his wrist watch, a brass kada and golden chain were all seized. The dead body was subjected to autopsy by a Medical Board which issued the Postmortem Report (Ex.P/28) and thereafter, the same was handed over to the family members for cremation. Statements of material witnesses were recorded during investigation and it came to light that Pushkar Lal was lastly seen in the company of Prabhu Lal who was arrested on 03.04.2013 vide arrest memo (Ex.P/44). Acting in furtherance of the informations provided by the accused Prabhu Lal under Section 27 of the Indian Evidence Act (Ex.P/47 and P/48), the I.O. Durga Prasad recovered a blood stained knife, a blood stained Saafi (used to clean blood) and the clothes, shoes, socks and a pea-cap worn by the accused at the time of the incident vide memos Ex.P/14 and Ex.P/31. During interrogation, Prabhu Lal confessed that he was hired by Suresh (brother-in-law of the deceased) to murder Pushkar Lal and that he had executed the evil design for personal gain. Prabhu Lal further divulged that Suresh got Pushkar Lal murdered so that he could usurp the land owned by the mother of the deceased. Suresh was also arrested on 18.04.2013 vide arrest memo Ex.P/45 and on the informations provided by him to the I.O. under Section 27 of the Evidence Act (Ex.P/49), a (Downloaded on 25/03/2021 at 08:52:23 PM) (4 of 30) [CRLA-1228/2016] motorcycle, purse, golden ear-studs and a brass ring, alleged to be of the deceased and said to have been handed over by Prabhulal to Suresh, were recovered (Ex.P/22 and Ex.P/20). The call details of the mobile phones of the accused, were procured. The accused Prabhu Lal was subjected to test identification at the instance of the witnesses Mahaveer Singh and Mitthunath who claimed to have seen him and the deceased Pushkar Lal together before the murder. The I.O. concluded after investigation that the accused Suresh had hired Prabhu Lal and paid him money for killing Pushkar Lal so that he could grab the agricultural land owned by the mother of the deceased. Accordingly, a charge- sheet came to be submitted against the accused appellants in the concerned court for the offences under Sections 302, 302/120B and 201 IPC.
As the offences were exclusively triable by court of Sessions, the case was committed to the court of Additional Sessions Judge No.2, Nimbahera, District Chittorgarh where, charges were framed against the accused appellants in the above terms. They pleaded not guilty and claimed trial. The prosecution examined as many as 32 witnesses and exhibited 54 documents and 15 articles so as to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the allegations appearing against them in the prosecution evidence, the accused appellants denied the same and claimed to have been falsely implicated, but no evidence was led in defence. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and evaluating the evidence available on record, (Downloaded on 25/03/2021 at 08:52:23 PM) (5 of 30) [CRLA-1228/2016] the learned trial court proceeded to convict and sentence the appellants as above. Hence these appeals.
7. Learned counsel Shri Kalu Ram Bhati representing accused appellant Suresh, and Shri Deepak Menaria, Advocate representing accused appellant Prabhu Lal, vehemently and fervently contended that the prosecution case is based on flimsy and unconvincing circumstantial evidence and thus, the impugned Judgment is unsustainable. As per the appellants' counsel, the prosecution failed to prove the relevant links of circumstances so as to form an unbroken chain essentially required to establish the guilt of the accused beyond all manner of doubt and hence, the accused appellants deserve to be acquitted of the charges. They fervently urged that the circumstances relied upon by the prosecution to seek conviction of the accused appellants viz. last seen, extra-judicial confession, recoveries and motive, were not proved beyond all manner of doubt by reliable evidence. They pointed out that the witnesses of extra-judicial confession namely Ghanshyam (PW-5), Kishanlal (PW-6) and Jagdish (PW-12) did not support the prosecution story and were declared hostile. So far as the circumstance of last seen is concerned, the appellants' counsel criticized this link of evidence urging that Mahaveer Singh (PW-1) and Mitthunath (PW-2), who claimed to have last seen the deceased in company of the accused, are not reliable witnesses. Mahaveer Singh himself lodged the FIR (Ex.P/42) wherein, there is no reference to the fact that he had seen either the deceased or the accused and that too in each others company on the day before the dead body of Pushkar Lal was found by him. They (Downloaded on 25/03/2021 at 08:52:23 PM) (6 of 30) [CRLA-1228/2016] further urged that Prabhulal was identified by these witnesses, but both of them admitted in their cross-examination that the accused was shown to them at the police station well before the test identification parade was conducted and thus, the identification of the accused Prabhulal by these witnesses in the court is tainted and unreliable. They further urged that the incriminating recoveries, allegedly effected at the instance of the accused, are fabricated and unbelievable. The knife was recovered allegedly at the instance of Prabhu Lal from an open place accessible to all and sundry and thus, the recovery thereof, is totally unbelievable. Since the appellant Suresh was admittedly not present at the time of murder, there was no occasion for the personal articles of the deceased to be found in his possession and that the recoveries shown to have been made from him are totally fabricated. Learned counsel Shri Kalu Ram Bhati vehemently and fervently contended that as a matter of fact, the brothers of PW-26 Hangami Bai (mother-in-law of Suresh) were threatening and pressurising her to sell the land of her father Dhannaji (PW-3). The appellant Suresh was instrumental in thwarting this nefarious design and got the land transferred to Hangami Bai. As per Shri Bhati, the appellant Suresh would stand to gain nothing by the death of Pushkar Lal as his own wife Sumitra, the sister of Pushkar Lal, was having a right on the land in question and thus, the appellant Suresh had no motive to murder Pushkar Lal. On the basis of these submissions, learned counsel Shri Bhati and Shri Menaria implored the Court to accept the appeals; set aside the impugned Judgment and acquit the accused appellants of the charges. (Downloaded on 25/03/2021 at 08:52:23 PM)
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8. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel and urged that the appellant Suresh Jat had a strong motive to murder Pushkar Lal because he was casting an evil eye on the land of Hangami Bai (mother of Pushkar Lal). Sumitra (wife of the appellant Suresh) and Pushkar were siblings and thus, once Pushkar Lal was eliminated, the land owned by Hangami Bai would have automatically devolved upon Sumitra. Learned Public Prosecutor drew the Court's attention to the evidence of Hangami Bai (PW-26) and Sumitra (PW-32) and pointed out that the appellant Suresh was instrumental in getting the land owned by Hangami Bai's father transferred in her name so as to suit his own cause. Soon after the registry was executed in the name of Hangami Bai, the next step which the appellant Suresh took, was to get rid of Pushkar Lal as a result whereof, his wife Sumitra remained the only heir to Hangami Bai and the appellant Suresh would indirectly gain exclusive access to the land in question. Learned Public Prosecutor further submitted that identification of the appellant Prabhu Lal as the person in whose company the deceased Pushkar Lal was last seen before his murder, has been reliably stated in the evidence of Mahaveer Singh (PW-1) and Mitthunath (PW-2). The witnesses gave positive testimony to prove that the accused Prabhu Lal and the deceased Pushkar Lal, were seen moving around together on the day preceding the recovery of the dead body of Pushkar Lal. The minor contradictions sought to be relied upon by the defence counsel in the evidence of these two witnesses are inconsequential. The witnesses had no cause to falsely implicate the accused and thus, (Downloaded on 25/03/2021 at 08:52:23 PM) (8 of 30) [CRLA-1228/2016] there is no reason to discard or doubt their testimony which is truthful and convincing. Learned Public Prosecutor further pointed out that highly incriminating recoveries were effected from both the accused during the course of investigation. The weapon of offence, i.e. a knife, and a piece of cloth (used to clean blood after the murder), were recovered at the instance of the accused Prabhu Lal (Ex.P/14), whereas personal belongings of the deceased Pushkar Lal were recovered at the instance of the accused Suresh (Ex.P/20). Both the accused failed to offer any explanation whatsoever for these highly incriminating recoveries and thus, they were rightly held guilty for the murder of Pushkar Lal. On these submissions, learned Public Prosecutor sought affirmation of the impugned Judgment and dismissal of the appeals.
9. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and, have minutely re-appreciated the evidence available on record.
10. Admittedly, there is no eye witness of the incident and the prosecution case is totally based on circumstantial evidence in the form of motive qua the accused Suresh; last seen and recoveries against both the accused appellants and extra-judicial confession. We thus proceed to examine the evidence of prosecution witnesses in sequence regarding these links in the chain of circumstantial evidence.
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11. Firstly, we take up the prosecution case regarding motive to commit the offence. The material witnesses examined to prove motive qua the accused Suresh are Rameshwar Lal (PW-9), Heeralal (PW-17), Pramila (PW-18), Hangami Bai (PW-26) and Sumitra (PW-32). We would be briefly discussing the deposition of these witnesses to find out their evidentiary worth.
12. PW-9 Rameshwar Lal, father-in-law of the deceased Pushkar Lal, was associated as a panch witness in the inquest proceedings and in the recovery of the ring, purse, ear-studs, etc. effected at the instance of the accused appellant Suresh. He made a fleeting remark in his evidence that Pushkar Lal was murdered over the dispute of 12 bighas of land which is located on the four lane road. However, as the witness did not state that the appellant Suresh had any interest in the land in question, manifestly, his evidence does not forward the case of the prosecution that the appellant Suresh had a motive to eliminate Pushkar Lal.
13. PW-17 Heeralal, maternal uncle of the deceased Pushkar Lal, also made a fleeting reference in his examination-in-chief that Pushkar Lal had been killed owing to the dispute of the land located on the four lane road. However, he did not pertinently state that the appellant Suresh had any interest in the land in question or that he wanted to eliminate Pushkar Lal. In cross- examination, the witness stated that Pushkar Lal was his maternal nephew. He denied the suggestion that he was trying to sell off his father Dhannaji's land and that is why the same was transferred to Pushkar Lal's mother Hangami Bai (sister of the witness). He (Downloaded on 25/03/2021 at 08:52:23 PM) (10 of 30) [CRLA-1228/2016] feigned ignorance as to whether the accused Suresh and Kalu Jat Sarpanch were witnesses in the registry of the land. He denied the suggestion that he was annoyed because his father had gifted the land to his sister Hangami Bai. Thus, from the evidence of this witness as well, no inference can be drawn that the accused appellant Suresh had a motive to kill Pushkar Lal. This witness also gave evidence regarding having seen the deceased Pushkar Lal in the company of the accused Prabhu Lal before the murder. This aspect of his evidence will be discussed later.
14. PW-18 Pramila (wife of the deceased Pushkar Lal) did not impute motive to the accused appellant Suresh regarding her husband's murder. In her cross-examination, she admitted that Pushkar and his maternal uncle quarrelled with each other over money matters and that Pushkar Lal was assaulted and was hurt on the head. The accused Suresh and her father took Pushkar to the hospital for treatment. Her evidence is rather, inconsistent with the prosecution theory of motive qua the accused Suresh.
15. PW-20 Paras Devi (mother-in-law of the deceased Pushkar Lal) did not allege that the accused Suresh had a motive to kill Pushkar. She also admitted in her cross-examination that her son- in-law Pushkar was beaten by his maternal uncles Madhu, Dalu and Kishan and that he was taken for treatment by her husband and Suresh. Her evidence also creates a doubt on the motive theory.
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16. PW-26 Hangami Bai (mother of the deceased) alleged in her examination-in-chief that Pushkar had been murdered by Prabhu Lal and her son-in-law Suresh for the land. She stated that her father owned 12 bighas of land which was transferred in her name. Suresh was bent upon getting the land sold and would often suggest that Pushkar was acting too smart and was not letting the sale go through. She imputed that it was for this reason that Pushkar was killed. In cross-examination, she admitted that Suresh was a witness to the land transfer document which was executed by her father in her favour. She admitted that after her father got the land transferred in her name, her brothers assaulted Pushkar and caused him head injuries. However, she denied the defence suggestion that Suresh got Pushkar treated for the injuries sustained in that incident. She admitted that Heera Lal got some land from his matrimonial family which he sold and thereafter, he was casting an evil eye on the land transferred to her. She denied the suggestion that her daughter Sumitra (wife of Suresh) wanted to get rid of Suresh and thus he had been falsely implicated in this case.
From the evidence of this witness, it is apparent that motive to kill Pushkar Lal could be imputed to appellant Suresh as well as the brothers of Smt. Hangami Bai, who had a stronger grudge as their father's land to which they were otherwise entitled to, was transferred to Hangami Bai, and Suresh was instrumental in this transaction. Being annoyed thereby, they had assaulted Hangami as well as Pushkar. The evidence of this witness also indicates that after the murder of Pushkar, Sumitra (wife of the appellant Suresh) started living separately.
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17. PW-32 Sumitra stated in her testimony that her brother Pushkar was murdered by the appellant Prabhu Lal at the instance of her husband, the accused appellant Suresh. She stated that her maternal grandfather had gifted 10 bighas of land in the village Napaniya to her mother and her husband Suresh was pressurising that it should be sold. Her mother did not agree to the said suggestion on which, Suresh would often quarrel with the witness. She claimed to be at Napaniya on the day preceding the incident and stated that Prabhu Lal came there in the day time and took Pushkar with him saying that they would be going to Sanwaliyaji. Her brother Pushkar did not return home in the evening upon which, her mother asked Prabhulal about Pushkar's whereabouts to which, he replied that Pushkar had stayed back at his in-law's house. On the following day, they came to know that Pushkar's dead body was found lying near Dhaneshwar Mahadev. Her husband Suresh had been absconding since the cremation of her brother's body. She imputed that Suresh had given money to Prabhu Lal for eliminating Pushkar. In cross-examination, the witness admitted that her maternal grandfather transferred the land in question to her mother because her maternal uncles (mama) had sold the land at Rupaji Ka Khera. The 10 Bighas land of her maternal grandfather in the village Napaniya was the only property left with her mama which they were trying to sell off. Suresh intervened and convinced her maternal grandfather to gift the land to her mother and that Suresh himself was a witness in the registry. No complaint was made about the pressure allegedly applied by Suresh in trying to get the land sold. She denied the (Downloaded on 25/03/2021 at 08:52:23 PM) (13 of 30) [CRLA-1228/2016] suggestion that her maternal uncles were annoyed with Pushkar or that they had beaten him or hurt him and that he was provided treatment by appellant Suresh. She admitted that she never visited the house of Suresh after Pushkar's death. She did not see the ring or photo identification certificate of Pushkar.
From the evidence of this witness as well, inference of motive cannot be imputed exclusively to the accused Suresh because after the land owned by Shri Dhanna (PW-3) was transferred to Hangami Bai, his sons i.e. the brothers of Hangami Bai were equally aggrieved and they had even gone to the extent of assaulting Hangami Bai and Pushkar out of sheer rage. Therefore, from the evidence of Sumitra, an equally strong motive to commit the offence could be attributed to the brothers of Hangami Bai.
Another significant inference which can be drawn from the evidence of this witness, is that she broke off all ties with her husband, i.e. the appellant Suresh after the murder of Pushkar and started living at her parental home.
18. On going through the impugned Judgment, it is apparent that the trial court did not record a concrete finding on motive attributed to the appellant Suresh for committing the offence. Even otherwise, evidence of motive is not sine-qua-non for bringing home the charge of murder. If at all, the prosecution can provide reliable evidence of motive, the same can be used to corroborate the other pieces of evidence to bring home the guilt of the accused. From a threadbare reappraisal of the evidence available on record, we are of the view that the prosecution has (Downloaded on 25/03/2021 at 08:52:23 PM) (14 of 30) [CRLA-1228/2016] failed to prove, beyond all manner of doubt, that the accused appellant Suresh had a motive to murder Pushkar Lal.
19. The prosecution also alleged that the accused made an extra-judicial confession regarding the murder. However, the material witnesses PW-5 Ghanshyam, PW-6 Kishanlal and PW-12 Jagdish did not support the prosecution case on this aspect and were declared hostile and hence, the circumstance of extra- judicial confession was discarded by the trial court.
20. The next circumstance relied upon by the prosecution to bring home the charges was that of last seen. The witnesses examined to prove this fact are Mahaveer Singh (PW-1), Mitthunath (PW-2), Dhanna (PW-3), Pramila (PW-18), Paras Devi (PW-20), Hangami Bai (PW-26) and Sumitra (PW-32). We now proceed to discuss the evidence of all these witnesses in sequence.
21. Some of these witnesses claimed that the deceased was last seen in the company of both the accused before his dead body was found at Dhaneshwar Mahadev, whereas the two most important witnesses viz. Mahaveer and Mitthunath stated that only Prabhu Lal and Pushkar were last seen at the hotel of Mitthunath and on the next morning, the dead body of Pushkar was seen lying in the nearby field of Mahaveer Singh.
22. PW-32 Sumitra stated that she was in Napaniya on the day before the incident. Prabhu Lal came and took Pushkar Lal with (Downloaded on 25/03/2021 at 08:52:23 PM) (15 of 30) [CRLA-1228/2016] him at about 11 O' Clock, saying that they would be going to Sanwaliyaji. Pushkar did not return upon which, enquiry was made from Prabhu Lal who replied that he had left Pushkar Lal at the house of his in-laws.
On going through the cross-examination undertaken from this witness, it is clear that no suggestion was given by the defence counsel to the witness regarding her assertion that Prabhu Lal took Pushkar with him on the day before his dead body was discovered.
23. PW-26 Hangami Bai stated that Prabhu Lal took Pushkar with him on the motorcycle at around 11 O' Clock and Suresh was also present at that time. She asked Pushkar as to where he was going upon which, he replied that they were going to Bhadsauda and would return later. Pushkar did not come home in the evening. The following morning, while she was harvesting wheat in her field, Prabhu Lal came there. She asked him as to the whereabouts of Pushkar Lal on which, the accused replied that Pushkar Lal had gone to his in-law's house.
The evidence of this witness regarding the circumstance of last seen can be considered reliable only to the extent of the accused Prabhu Lal because, had it been the case that Suresh was also present at the time when Pushkar Lal left his home, the natural human conduct would have been to first make an enquiry from her own son-in-law Suresh regarding Pushkar Lal's whereabouts. Regarding the assertion of the witness that Pushkar Lal was accompanied by Prabhu Lal, no significant cross- (Downloaded on 25/03/2021 at 08:52:23 PM)
(16 of 30) [CRLA-1228/2016] examination was made from her and thus, her evidence can be treated reliable to this extent.
24. Paras Devi (PW-20) stated that she saw her son-in-law Pushkar Lal and Prabhu Lal together in Unchnar. They visited her home at about 05.00-06.00 PM. and then left together. The following day, she came to know that Pushkar Lal had been murdered. This witness also did not indicate about presence of Suresh with Prabhu Lal and Pushkar Lal in the evening prior to the incident. No significant cross-examination was made from this witness regarding her assertion that Pushkar Lal and Prabhu Lal came to her house on the evening before the incident.
Thus, the evidence of this witness also lends strong support to the prosecution theory that Prabhu Lal and Pushkar were seen in each others company before the murder.
25. PW-18 Pramila (wife of the deceased) gave evidence in tandem with the testimony of Paras Devi (PW-20). The evidence of this witness is further corroborated by the evidence of Hangami Bai (PW-26), who clearly stated that Prabhu Lal and Pushkar Lal had gone together on a motorcycle a day before the dead body was found.
26. PW-17 Heeralal stated that in the evening of 01.04.2013, he saw Prabhu Lal and Suresh, taking Pushkar Lal on a motorcycle going towards the village Napaniya. In cross-examination, the witness stated that the time was between 04.00 and 05.00 PM. He was sitting at the Napaniya cross-roads when all three of them (Downloaded on 25/03/2021 at 08:52:23 PM) (17 of 30) [CRLA-1228/2016] passed by him on a motorcycle. He saw them from a distance of about 8-10 ft. and recognised Pushkar Lal.
It may be stated here that Heeralal is the maternal uncle of Pushkar Lal against whom there is an aspersion by defence that he assaulted Pushkar Lal as well as Hangami Bai on being annoyed by the transfer of his father Dhannaji's land to his sister Hangami Bai.
Thus, the evidence of this witness is unreliable because he too had a motive to eliminate Pushkar Lal and thus, he would be strongly inclined to give evidence against Suresh so as to save his own skin. In addition thereto, the evidence of this witness is contradicted by that of Pramila (PW-18) and Paras Devi (PW-20) who stated that at about 05.00-06.00 PM., only Pushkar Lal and Prabhu Lal were seen with each other. Even if it is assumed for a moment that Suresh, Pushkar Lal and Prabhu Lal were seen together by the witness Heeralal between 04.00 and 05.00 PM., then, Suresh definitely would have parted ways because he was not seen by the witnesses Pramila and Paras Devi who saw only Pushkar Lal and Prabhu Lal going together on the motorcycle at a later point in time.
27. PW-1 Mahaveer Singh stated that he saw the deceased and another person at the hotel on the day before the incident at about 4 PM. Both were having tea. He did not know them from before. He was also present at the hotel for having tea. On the following morning, he saw the dead body and informed the SHO that he had seen the dead man having tea with another man in the preceding evening. He also stated that the victim and the (Downloaded on 25/03/2021 at 08:52:23 PM) (18 of 30) [CRLA-1228/2016] accused arrived there on a Platina motorcycle. They were cordially talking to each other. The witness admitted in his cross- examination that 3-4 hours, after he had seen the dead body, the police apprehended the suspect (Prabhu Lal) and brought him to the police station. The SHO asked the witness to identify the accused and he did so correctly. At that point, he told the police officials that he was only roughly identifying the accused because it was not possible to exactly recollect the face of a person in the short span of an hour or so. About 3-4 months later, the police took him to the jail where, identification proceedings were undertaken in presence of the SDM. There, he identified the accused from amongst the eight persons lined up in the jail. The witness was partially declared hostile and in cross-examination undertaken by the public prosecutor, he admitted that after seeing the accused and the deceased at the hotel, his next confrontation with the accused was at the jail. In cross-examination, he was confronted with the written report (Ex.P/1) and was put a pertinent question that he did not mention therein that he had seen the deceased having tea at the hotel on the previous day with another man. The witness admitted that he could not explain this omission. He also stated in his cross-examination that after the dead body had been recovered, he was called to the police station and was asked to identify a man. He told the police that the man being shown was possibly the one who he had seen at the hotel with the deceased. He explained that the person present at the police station closely resembled the suspect he had seen at the hotel.
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(19 of 30) [CRLA-1228/2016] From an overall appreciation of the evidence of this witness, it is clear as daylight that the police had apprehended the accused Prabhu Lal on the very same day, the dead body of Pushkar was recovered. The accused was shown to the witness Mahaveer Singh (PW-1) at the police station and was identified immediately. The accused appellant Prabhu Lal was shown formally arrested vide arrest memo (Ex.P/44) dated 03.04.2013. Manifestly, going by the version of Mahaveer Singh (PW-1), the arrest memo (Ex.P/44) is a fabricated document. For reaching to this conclusion, we are further persuaded by the contention of the learned defence counsel that in the arrest memo, the date of arrest was initially written as 02.04.2013 and was later on changed to 03.04.2013 by overwriting as is visible to the naked eyes. Therefore, the steps of investigation undertaken by the investigating officer are apparently tainted. Inspite thereof, the entire prosecution case cannot be thrown out merely because part of the investigation is flawed.
28. PW-2 Mitthunath was running a hotel at Dhaneshwar Mahadev. He stated that between 03.30 PM. and 04.00 PM., two persons arrived at his hotel on a motorcycle which they parked at a distance from his hotel. They stayed at his shop/hotel for about 30 to 45 minutes. He saw faces of both the persons. They asked for water and then had tea. They were referring to each other as Mama and Bhanja. They made payment for tea, but he could not say as to what had happened thereafter. He did not see any dead body. The police called him to the police station on the same day after catching hold of the accused and made him identify them. He (Downloaded on 25/03/2021 at 08:52:23 PM) (20 of 30) [CRLA-1228/2016] stated that the police had caught two persons whom he identified as being those who had visited his hotel and had tea there. The police man told him that the name of one of these persons was Prabhu Lal. He then clarified that the other person did not come to his hotel. He further stated that about 1-1½ months later, he went to the Kapasan Jail where he was asked to identify Prabhu Lal and he did so correctly.
From a perusal of the evidence of this witness, it is clear that he was not made to identify the deceased and thus, his evidence is not helpful to the prosecution for proving the circumstance of last seen. Otherwise also, since we have concluded from the statement of Mahaveer Singh, who has given similar evidence, that the accused Prabhu Lal was apprehended by the police officers on the very day of the incident and was shown to the witnesses at the police station, the entire exercise of test identification of the accused Prabhulal at the hands of these witnesses, becomes doubtful and cannot be relied upon. Furthermore, both these witnesses claimed to have seen the accused and the deceased together between 03.30 PM. and 04.00 PM. whereas the witnesses Pramila (PW-18) and Paras Devi (PW-
20) saw them together at a later point in time i.e. 05.00-06.00 PM. and thus, their evidence would be crucial on the aspect of last seen.
29. In addition to the above, the fact remains that the test identification proceedings of the accused Prabhu Lal at the hands of Mahaveer Singh (PW-1) and Mitthunath (PW-2) were held as late as on 30.05.2013 i.e. after nearly 1 month and 25 days of his (Downloaded on 25/03/2021 at 08:52:23 PM) (21 of 30) [CRLA-1228/2016] arrest and in the meanwhile, Prabhu Lal had already been named by Pramila (PW-18) and Paras Devi (PW-20) and thus, the identification proceedings cannot be treated to be bonafide.
30. From an overall discussion of the evidence of Pramila (PW18) and Paras Devi (PW-20), we have no hesitation in holding that these witnesses have given convincing and uncontroverted evidence establishing the fact that Pushkar Lal and Prabhu Lal were last seen together on the day prior to the recovery of the dead body of Pushkar who did not return home upon which, enquiry was made from Prabhu Lal regarding his whereabouts and he gave a misleading reply that Pushkar Lal was visiting his in- law's home.
The trivial contradictions sought to be relied upon by learned defence counsel by referring to the cross-examination conducted from these witnesses are bound to appear in the testimony of truthful witnesses. Thus, we have no hesitation in holding that the evidence of Pramila (PW-18) and Paras Devi (PW-20) is wholly reliable to the extent, they implicated the accused Prabhu Lal by stating that he was last seen in the company of the deceased Pushkar Lal, who was not seen alive thereafter, and his dead body was discovered the following day. At this stage, it would be relevant to mention here that the defence has not disputed the fact that the accused Prabhu Lal was known to both these witnesses from before.
31. After discussing the evidence of the material witnesses pertaining to the circumstance of last seen, the evidence of the investigating officer (PW-29) Durga Prasad needs to be discussed. (Downloaded on 25/03/2021 at 08:52:23 PM)
(22 of 30) [CRLA-1228/2016] The First Information Report (Ex.P/42) was submitted to him by Mahaveer Singh. The investigation of the case was assigned to the officer, who stated that he was posted as SHO, Police Station Bhadesar on the date of the incident. He undertook the relevant steps of investigation viz. preparation of Site Inspection Plan, Panchnama of the dead body and recovered blood stained soil, control soil and a blood stained starter, etc. from the spot. The personal belongings of the deceased present on his body were seized. Amongst these articles were a brass Kada and a golden chain. The dead body of Pushkar Lal was subjected to postmortem. Photographs of the place of incident were taken. The I.O. claims to have arrested the accused Prabhu Lal vide arrest memo (Ex.P/44) dated 03.04.2013. It may be mentioned here that there is visible overwriting in the arrest memo (Ex.P/44) because the numeral '2' was overwritten and changed to '3' in the date mentioned on the document. Durga Prasad further stated that upon interrogation, Prabhu Lal gave him a voluntary information under Section 27 of the Evidence Act which was taken down in memorandum (Ex.P/46). By this information, Prabhu Lal offered to verify the place of incident and the procedure was recorded in memorandum Ex.P/16. The accused also gave information (Ex.P/47 dated 06.04.2013) to the I.O. in which, he stated that while killing Pushkar Lal, his hands got stained by blood which he cleaned with his saafi (a large handkerchief) and that he had concealed the saafi and the knife used to kill Pushkar Lal which he could point out and get recovered. Acting in furtherance of this information, the I.O. alongwith the accused Prabhu Lal, proceeded to the place where the articles were alleged (Downloaded on 25/03/2021 at 08:52:23 PM) (23 of 30) [CRLA-1228/2016] to be concealed and the recovery was effected vide memorandum (Ex.P/14) dated 06.04.2013. Both the articles i.e. the saafi and knife were taken into possession, sealed and then deposited in the Maalkhana. The I.O. further claims that the accused Prabhu Lal gave another information to him which was recorded in memorandum Ex.P/48. Acting in furtherance of this information, the I.O. proceeded to recover the clothes, shoes and the cap worn by the accused at the time of the incident concealed inside an attic in his house (Ex.P/31). All these articles were also stained with blood.
32. The accused Suresh was arrested vide arrest memo (Ex.P/45) dated 18.04.2013. The I.O. stated that the accused Suresh gave him an information under Section 27 of the Evidence Act that after the murder, the accused Prabhu Lal gave him a purse, ear-studs and the brass ring of the deceased which he had concealed in his rented house at Bhadsauda. This information was taken down in memorandum (Ex.P/49). Acting in furtherance of this information, the I.O. claims to have recovered the brass ring, ear-studs and a purse, alleged to be those of Pushkar Lal at the instance of Suresh vide memorandum (Ex.P/20). However, these recoveries prima facie appear to be fabricated for the simple reason that when the dead body of Pushkar Lal was inspected, a brass kada and a golden chain were found present thereupon. Thus, it does not stand to reason that the accused Prabhulal who allegedly looted the valuables from the victim and would remain selective in the process while leaving the golden chain behind. These recoveries, which otherwise also were made after almost 16 (Downloaded on 25/03/2021 at 08:52:23 PM) (24 of 30) [CRLA-1228/2016] days of the incident, do not inspire confidence as no prosecution witness identified the articles to be that of Pushkar Lal. Furthermore, the purse and the brass ring would have no market value and there is no reason as to why the accused Suresh would accept these worthless articles from the accused Prabhulal and would hold on to them for so long. The I.O. also claims to have recovered the motorcycle of the deceased in furtherance of a purported information given by Suresh recorded vide memorandum Ex.P/49. It is alleged that the head case of the motorcycle was stained with blood and thus, it was seized vide memo Ex.P/22. Though the motorcycle was recovered allegedly at the instance of the accused Suresh, but the I.O. did not collect any evidence regarding the ownership thereof. The I.O. also did not collect any evidence to satisfy that the bada was in possession of Suresh. Apparently, as there is no reliable evidence on the record to show that the appellant Suresh was in possession of the motorcycle or that the very same motorcycle was used to transport the deceased, the recovery thereof becomes inconsequential.
The I.O. also claims to have collected the call detail records of the conversation exchanged between the accused Suresh, Prabhu Lal and the deceased Pushkar Lal. However, neither was a certificate under Section 65B of the Evidence Act for proving these call detail records obtained nor any authorised person of the service provider was examined in evidence so as to prove the call detail records. Thus, the call detail record exhibited as Ex.P/51 is rendered inadmissible in evidence.
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33. The blood stained articles allegedly recovered at the instance of accused Prabhu Lal and Suresh; the blood stained articles (clothing, etc.) recovered from the dead body of Pushkar Lal and the blood stained and control articles recovered from the place of incident, were forwarded to the FSL from where, a report (Ex.P/30) (admissible under Section 293 Cr.P.C.) was received as per which, the blood smeared soil and the motor starter recovered from the place of the incident, the shirt of the deceased, the knife and the saafi recovered at the instance of the accused Prabhu Lal (Ex.P/14), the apparels worn by Prabhulal at the time of incident viz. trousers, T-shirt, pea-cap, a pair of shoes, a pair of socks (Ex.P/31), and a pair of ear-studs and ring recovered at the instance of the accused Suresh (Ex.P/20), were all found to be stained with 'A' Group human blood. However, as we have discarded the recovery made from Suresh, the FSL report is not relevant qua him.
34. The autopsy of the dead body of Pushkar Lal was carried out by a Medical Board comprising of three doctors, which issued a postmortem report (Ex.P/28) as per which, the cause of death of Pushkar Lal was opined to be antemortem injuries including incised wound on the abdominal area, incised wound on the upper back, incised wound on the lower back and multiple abrasions. The injuries were opined to be sufficient in the ordinary course of nature to cause death. Thus, there is no doubt on the aspect that the death of Pushkar Lal was homicidal in nature. (Downloaded on 25/03/2021 at 08:52:23 PM)
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35. After threadbare discussion of the evidence available on record, we are of the opinion that so far as the accused Prabhu Lal is concerned, even if the evidence to be specific of test identification, is partially discarded because of unfair conduct of the I.O. then too, it is clear that there is convincing evidence on the record of the case to show that Prabhu Lal was last seen with the deceased Pushkar Lal by numerous witnesses namely Hangami Bai (PW-26), Pramila (PW-18) and Paras Devi (PW-20) on the day before the incident at different points in time. After the last instance of the Pushkar Lal being seen in the company of the accused Prabhulal, he was not seen alive and the dead body was recovered on the next morning. The factum of the recovery of the blood stained trousers, T-shirt, pea-cap, a pair of shoes and a pair socks (Ex.P/31), knife and the saafi (Ex.P/14) at the instance of the accused Prabhulal is well established from the evidence of the investigating officer Durga Prasad (PW-29), and the panch witnesses Ramlal (PW-27), Prakash Kumar (PW-30), Shambugiri (PW-7) and Man Singh (PW-31) who, supported the procedure of recoveries to the hilt and could not be shaken in cross- examination. The blood stained articles recovered at the instance of the accused Prabhu Lal, the blood stained articles recovered from the place of incident and the blood stained clothes of the deceased were serologically examined at the FSL from where, a report (Ex.P/30) was received indicating presence of 'A' Group human blood on all these articles. Thus, it can be concluded with an absolute degree of certainty that the accused Prabhu Lal was seen with Pushkar Lal soon before his death and that the blood stained weapon i.e. knife, a cloth (saafi) used for cleaning the (Downloaded on 25/03/2021 at 08:52:23 PM) (27 of 30) [CRLA-1228/2016] blood after the murder, the clothes, pea-cap, a pair of shoes and a pair of socks, recovered at his instance, were all found to be stained with the same blood group as that of the deceased. Accordingly, the chain of circumstances is complete pointing invariably to the guilt of the accused Prabhu Lal who failed to furnish any kind of explanation whatsoever to controvert these incriminating circumstances and thus, he was rightly convicted by the trial court for the murder of Pushkar Lal.
36. It may be stated here that the trial court convicted both the accused for the offence under Section 302/120B IPC. However, there is a clear error in the impugned Judgment because the charge as against the accused Prabhu Lal was for the offence under Section 302 IPC and alternatively under Section 302/120B IPC. The trial court did not advert to this important aspect of the matter and convicted both the accused for the offence under Section 302 IPC with the aid of Section 120B IPC whereas conviction of the accused Prabhu Lal should have been recorded for the charge under Section 302 IPC simpliciter. The appellate court, while exercising powers under Section 386(a) Cr.P.C., has the power to rectify such error and thus, the consequential finding will be recorded hereinafter.
37. So far as the accused Suresh is concerned, he was charged with the allegation of hiring Prabhu Lal to murder Pushkar Lal. As has been discussed above, the evidence of last seen against the accused as deposed by the witnesses Heeralal (PW-17) and Hangami Bai (PW-26) does not inspire confidence. We have (Downloaded on 25/03/2021 at 08:52:23 PM) (28 of 30) [CRLA-1228/2016] already discarded the prosecution theory of motive attributed to the accused Suresh. There is no direct or indirect evidence of conspiracy against the accused. The only other piece of evidence against the accused Suresh is in form of recoveries viz. purse (wallet), ear-studs and brass ring (Ex.P/20). If the information of the accused recorded by the I.O. under Section 27 of the Evidence Act (Ex.P/49) is considered, apparently, he divulged that these articles had been given to him by the accused Prabhu Lal. However, no information of Prabhulal was proved to corroborate this fact. Thus, at best, the accused Suresh could have been charged for receiving property stolen from the dead body of Pushkar Lal after his murder. However, no such charge was framed against him. The accused Suresh was arrested on 18.04.2013 i.e. after 16 days of the incident and thus, it does not stand to reason that for this long a duration and despite available opportunity, he would continue to hold onto the worthless personal articles of the deceased and not to dispose them off. Thus, the recoveries made from Suresh do not inspire confidence. None of the prosecution witnesses examined during trial stated that the motorcycle recovered at the instance of the accused Suresh bore the registration No.RJ-12-SB-6425, nor does the recovery memo (Ex.P/22) record such fact. No one from any of the prosecution witnesses examined during investigation or at the trial, stated about the ownership of the motorcycle. The investigating officer did not seize the registration certificate of the motorcycle. In addition thereto, it may be mentioned here that even if the recoveries made from the accused Suresh are to be believed then, that is the sole incriminating circumstance against him on the (Downloaded on 25/03/2021 at 08:52:23 PM) (29 of 30) [CRLA-1228/2016] entire record. Law is well settled by a catena of judgments rendered by Hon'ble the Supreme Court that in a case based on circumstantial evidence, conviction of an accused cannot be recorded solely on the basis of incriminating/blood stained recoveries.
38. As a consequence of the above discussion, we are of the view that so far as the accused Suresh is concerned, the prosecution has failed to lead convincing evidence so as to complete the chain of circumstances essentially required to bring home the charge of murder based purely on circumstantial evidence. Thus, the impugned Judgment dated 28.09.2016 whereby, the accused Suresh was convicted for the offence under Section 302/120B IPC cannot be sustained.
39. As an upshot of the discussion made herein above, the appeal filed by the accused Suresh deserves to be accepted and his conviction recorded by the trial court for the offence under Section 302/120B IPC and the sentence of life imprisonment awarded to him on this count deserves to be set aside.
40. Thus, the appeal filed by the accused Suresh is allowed. The impugned judgment dated 28.09.2016 passed by the learned Additional Sessions Judge, No.2, Nimbahera, District Chittorgarh in Sessions Case No.26/2015 (52/2013) is hereby quashed and set aside to the extent of appellant Suresh. The appellant Suresh S/o Ratan Lal is acquitted of the charges under Section 302/120B (Downloaded on 25/03/2021 at 08:52:23 PM) (30 of 30) [CRLA-1228/2016] IPC. He is in custody and shall be released from prison forthwith if not wanted in any other case.
41. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant Suresh is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
42. So far as the accused Prabhu Lal is concerned, his conviction as recorded by the trial court for the offence under Section 302/120B is altered to one under Section 302 IPC. The sentence of life imprisonment and fine awarded to Prabhulal by the trial court is maintained.
The appeal filed by accused Prabhu Lal is dismissed as being devoid of merit.
43. Record be returned to the trial court forthwith.
44. A copy of this order be placed in each file.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J
tikam daiya/-
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