Rajasthan High Court - Jodhpur
Devaram vs State on 20 May, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 303/2019
Devaram S/o Sh. Sonaram, Aged About 30 Years, By Caste Jat,
Resident Of Jato Ka Doran, Police Station Sadri, Dist. Pali (Raj.)
(Presently Lodged In Central Jail, Jodhpur)
----Appellant
Versus
State, Through PP
----Respondent
For Appellant(s) : Mr. Vineet Jain, Sr. Advocate assisted
by Mr. Ashok Kumar
For Respondent(s) : Mr. R.R. Chhaparwal, PP
Mr. Suresh Kumbhat for complainant.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
JUDGMENT
Judgment pronounced on ::: 20/05/2022
Judgment reserved on ::: 11/04/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as below vide judgment dated 11.10.2019 passed by learned Addl. Sessions Judge, Bali District Pali in Sessions Case No.47/2012:-
Offence Sentences Fine Sentence in lieu of under default of payment Section of fine 302 IPC Life Imprisonment Rs.15,000/- 6 month's Additional Imprisonment 201 IPC 3 Years' RI. Rs.5,000/- 3 Months' Additional Imprisonment 364 IPC 10 Years' RI Rs.10,000/- 5 Months' Additional imprisonment
All the sentences were ordered to run concurrently. (Downloaded on 20/05/2022 at 08:40:12 PM)
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2. He has preferred the instant appeal under Section 374(2) Cr.P.C. for assailing the impugned judgment of conviction and the sentences awarded to him by the trial court.
3. Briefly stated the facts relevant and essential for disposal of the instant appeal are noted hereinbelow:-
The deceased Rekha was married to the appellant a year and half before the incident. She was at her maternal uncle's house from where she went missing on 14.09.2012. A Missing Person Report (Ex.P/9) was lodged by Ghisaram (PW.5), maternal uncle of the girl at the Police Station Sadri on 15.09.2012. No suspicion whatsoever was cast on anyone behind the disappearance of Rekha in this report. The dead body of Rekha was recovered on 17.09.2012 whereafter FIR (Ex.P/6) came to be lodged by Rekha's brother Banshilal (PW.4) at the Police Station Sadri alleging inter alia that Rekha had left her maternal-uncle Ghisaram's house on 14.09.2012 at 03:15 PM. However, she neither reached the parental home nor did she report at the matrimonial home upon which, Shri Ghisaram had lodged a missing person report on 15.09.2012. On 17.09.2012, information was received regarding dead body of a woman lying in the 'Barwa Ki Jod' on which, Shri Banshilal and his relatives reached the spot and identified the body to be of Rekha. She had been married to Deva Ram about a year and half ago. Right after the marriage, marital discord developed amongst Rekha and her husband as well as with the matrimonial relatives. His sister was living at the parental home (Downloaded on 20/05/2022 at 08:40:12 PM) (3 of 21) [CRLAD-303/2019] for the last four months. On 14.09.2012, she had gone to her maternal-uncle Ghisaram's home. She received a call on her mobile phone No. 9636664970 on which, she started to leave without any information as to where she was going. Noticing this, Shri Ghisaram inquired and the girl divulged that her husband had called and she was going to meet him. The informant alleged that Deva Ram had called Rekha on a false pretext and thereafter he murdered her. On the basis of this report, FIR No.150/2012 came to be registered at the Police Station Sadri for the offences under Sections 364, 302, 201 & 120B IPC and investigation was commenced. The dead body of Smt. Rekha was subjected to autopsy through a medical board constituted of Dr.Devendra Choudhary (PW.31) and Dr. Abhijeet Jain (PW.32).
The autopsy was carried out and the Medical Board issued postmortem report (Ex.P/38) opining that the cause of death of Smt. Rekha was strangulation.
4. The accused appellant was arrested. Acting in furtherance of the information provided by the accused (Ex.P/48), the IO claims to have effected recovery of a steel pot. The IO further claims to have collected call details of the mobiles allegedly in use of the deceased and the accused (Ex.P/51) and thereafter charge-sheet came to be filed against the accused appellant in the Court of the concerned magistrate from where, the case was committed to the Court of Addl. Sessions Judge, Bali for trial. The learned trial court framed charges against the accused for the offences punishable under Sections 302, 201 and 364 IPC. He pleaded not guilty and (Downloaded on 20/05/2022 at 08:40:12 PM) (4 of 21) [CRLAD-303/2019] claimed trial. The prosecution examined as many as 36 witnesses and exhibited 62 documents to prove its case. Upon being questioned under Section 313 Cr.P.C and when confronted with the circumstances appearing against him in the prosecution case, the accused denied the same and claimed to be innocent. However, no evidence was led in defence. After hearing arguments advanced by learned defence counsel and learned Public Prosecutor, the learned court below, proceeded to convict and sentence the appellant as above by judgment dated 11.10.2019 which is assailed in this appeal.
5. Shri Vineet Jain, learned senior counsel assisted by Shri Ashok Kumar vehemently and fervently contended that the entire prosecution case is false and fabricated. Circumstantial evidence led by the prosecution is absolutely flimsy, and is not sufficient to bring home the charges. Four circumstances were put-forth by the prosecution to prove its case:-
(i). Motive i.e., the alleged matrimonial discord between the appellant and the deceased.
(ii). Last seen together to the effect that the accused appellant called the deceased on her phone and then was seen taking her away in a car whereafter she was found murdered.
(iii). Recovery of the steel pot carried by the deceased while she was leaving the house of her maternal-uncle.
(iv). Call detail records.
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6. Shri Jain urged that the theory of motive is totally flimsy and unacceptable because the appellant and Smt. Rekha were living separately for about four months. Both did not meet during this period and thus there was no reason whatsoever for the appellant to have taken the extreme step of murdering Smt. Rekha without any rhyme or reason. Ghisaram, maternal uncle of the deceased while filing the Missing Person Report (Ex.P/9) did not make any allegation that his niece Rekha and her husband having strained relations. As per the evidence of Smt. Chatru (PW.2), mother of the deceased, Rekha was living at the parental house for the last four months and she used to complain that her husband would beat her up in the matrimonial home as he wanted to marry another girl. If this was the situation then, there was no rhyme or reason whatsoever as to why Rekha would abruptly leave the house of her maternal uncle simply on receiving a call of the accused appellant. In the written report FIR (Ex.P/6) submitted by Banshilal, only a bald allegation was levelled that marital discord was existing between Rekha, her husband and other matrimonial relatives right after the marriage. However, there is no indication either in the report or in the evidence of any of the prosecution witnesses that relations were so strained that the accused could go to the extent of murdering his own wife.
7. Shri Jain fervently criticized the theory of last seen together as was portrayed by the prosecution in the evidence of Mangilal (PW.1) and Tararam (PW.6).
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8. Mangilal (PW.1) stated that he had seen the deceased Rekha boarding the vehicle in which the accused was also present and that he got news of Rekha having been murdered on 18.09.2012.
Shri Jain referred to the evidence of Ghisaram (PW.5) who lodged the missing person report (Ex.P/9) stated that Mangilal was assisting them in the search for Rekha right from the time of Rekha's disappearance, till the dead body was found. Shri Jain urged that Mangilal, while deposing on oath feigned total ignorance regarding fate of Rekha and claimed to have received information of her death on 18.09.2012 whereas the evidence of Ghisaram clearly establishes that he was engaged in the search operations undertaken after the unexplained disappearance of Rekha. In addition thereto, Chunnilal (PW.16) father of the girl clearly stated in his evidence that Mangilal was present in Rekha's funeral. Thus, had Mangilal seen the accused taking away Rekha on 14 September, then in natural course of events, this fact would have been immediately divulged to the close family members and would definitely be incorporated in the Missing Person Report and the FIR. As per Shri Jain, Mangilal has given false evidence on this important aspect of the case and thus, his evidence deserves to be discarded.
9. Criticizing the evidence of Tararam (PW.6), the taxi driver who also gave last seen evidence alleging that the deceased and the accused boarded his taxi car before Rekha's disappearance, Shri Jain stated that the witness admitted that he knew neither Deva Ram nor the deceased woman from before and thus, (Downloaded on 20/05/2022 at 08:40:12 PM) (7 of 21) [CRLAD-303/2019] identification of the deceased as well as the accused by Shri Tararam is doubtful. On these grounds, he urged that the evidence of last seen circumstance is totally unreliable.
10. Regarding the recovery of the steel pot allegedly carried by the deceased when she left her maternal-uncle's house, Shri Jain drew the Court's attention to the statement of Banshilal (PW.4) who stated in his examination-in-chief that the steel pot was seen lying near the dead body of Rekha and was recovered by the police. Thus, Shri Jain urged that recovery of the steel pot has been planted for creating evidence against the accused.
11. Regarding the allegedly incriminating call detail records, Shri Jain urged that the prosecution did not lead proper evidence to establish that the disputed mobile numbers were in use of the accused or the deceased. He further urged that the prosecution did not satisfy the mandatory requirement of proving the certificate under Section 65-B of the Evidence Act and hence, the call detail records cannot be admitted in the evidence.
12. Shri Jain referred to the statement of Smt. Tijo Devi (PW.19) and urged that the witness alleged that her husband had given her a sim which she passed on to Rekha. After the murder of Rekha, the police made an inquiry from her and asked whether Rekha used to talk to her husband. As per Shri Jain, this indicates that Rekha was involved in an extramarital affair with Bhera Ram, husband of Tijo Devi and in all probability, she might have been murdered because of this illicit affair.
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13. Shri Jain concluded his arguments contending that there is no reliable evidence on record of the case so as to connect the appellant with the murder of Smt. Rekha and implored the Court to accept the appeal, set aside the impugned judgment and acquit the appellant of the charges.
14. Per contra, learned Public Prosecutor and Shri Suresh Kumbhat, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by Shri Jain and urged that the appellant was married to Smt. Rekha about one and half years before the incident. The prosecution witnesses have given unimpeachable evidence on the aspect of the appellant maltreating Smt. Rekha in the matrimonial home. The appellant was also heard insinuating that he would marry another woman named Mamta. In order to give finality to his evil design, the appellant called Rekha on 14.09.2012 and took her away in the car of Tararam (PW.6). Thereafter, she was not seen alive.
15. Smt. Rekha was carrying a steel pot with her when she left her uncle Megharam's home. The appellant murdered Smt. Rekha by strangulating her and concealed the dead body amongst the bushes from where it was recovered on 17.09.2012. He also concealed the steel pot being carried by Smt. Rekha in the nearby area. It was urged that involvement of the accused appellant in the incident was prima facie established when the Investigating Officer collected the call detail records of the mobile phone in use of Smt. Rekha and accordingly, he was arrested. Acting in (Downloaded on 20/05/2022 at 08:40:12 PM) (9 of 21) [CRLAD-303/2019] furtherance of the voluntary information provided by the accused to the IO under Section 27 of the Evidence Act, the steel pot being carried by Smt.Rekha was recovered.
16. The witnesses Mangilal (PW.1) and Tararam (PW.6) gave unimpeachable evidence of last seen together against the appellant who offered no explanation as to how Smt. Rekha was found strangled to death after she was lastly seen in his company. As per learned Public Prosecutor, Section 106 of the Evidence Act clearly springs into operation in the above facts and the burden would shift on to the appellant to explain as to how his wife Rekha was found strangled to death soon after being in his company but he failed to do so. As per learned Public Prosecutor, the grave incriminating circumstance of last seen together is in itself sufficient to affirm the guilt of the accused appellant. On these grounds, learned Public Prosecutor and Shri Kumbhat implored the Court to affirm the impugned judgment of conviction and dismiss the appeal.
17. We have heard and considered the submissions advanced at bar and have carefully re-appreciated the evidence available on record.
18. Manifestly, there is no eye-witness of the incident and the entire prosecution case is based on circumstantial evidence in the form of motive, last seen together and recovery. (Downloaded on 20/05/2022 at 08:40:12 PM)
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19. For proving motive, the prosecution tried to portray that the appellant was not on good terms with Smt. Rekha and wanted to marry another woman and thus, he murdered Rekha to remove the obstacle from his path. In this regard, relevant evidence would be constituted by the allegations in the FIR and testimony of close maternal relatives of Smt. Rekha. We proceed to analyse this evidence.
20. A vague allegation was made in the written report (Ex.P/6), that right after the marriage, differences cropped up between Rekha, her husband and her matrimonial family members. However, the report does not indicate that the appellant had such animosity with Rekha which could fuel him with the motive to murder her.
21. Banshilal, brother of Rekha, while deposing as PW.4, did not utter a single word that relations between Rekha and the appellant were strained in any manner. He admitted in his cross- examination that Devaram's sister Mohani is his wife. Meaning thereby, the parties were in a cross-family matrimonial relationship.
22. Smt. Chatru, (PW.2) mother of the deceased alleged that for a period of about 12 months from her marriage, Rekha was satisfied at her matrimonial home but thereafter, her in-laws used to abuse her and her husband would beat her up. Rekha returned to the parental home about four months before the incident. The (Downloaded on 20/05/2022 at 08:40:12 PM) (11 of 21) [CRLAD-303/2019] witness asked Rekha as to why she was losing weight on which, she replied that her husband used to beat her up and her in-laws quarreled with her. She also indicated that Devaram was intending to contract a relationship with another girl named Mamta.
23. However, this bald allegation of Smt. Chatru is totally unconvincing so as to attribute motive for Rekha's murder to the appellant. Considering the inter-family relationship between the parties with the appellant having been married to Rekha and the appellant's sister Mohini being married to Banshilal, there was hardly any possibility of either of the girls being harassed or humiliated in their respective marital homes. If at all, Rekha had been turned out of the matrimonial home, the resultant counter reaction would also impact the relationship of appellant's sister and Banshilal. However, there is no allegation that anything of the sort happened till Rekha's death. Looking to the fact of the cross- family marriages, without any doubt, some kind of family mediation/community mediation would have been attempted to resolve the differences between Rekha and Deva Ram but no such meeting/panchayat was ever called. PW.5 Ghisaram is the maternal uncle of the deceased Rekha. He alleged that Rekha was married to to Devaram about one and a half years ago. Devaram used to maltreat and beat Rekha and thus, a marital discord had developed between the spouses. Rekha complained of this fact to him. In cross-examination, the witness admitted that while filing the Missing Person Report, they did not cast any suspicion on Devaram. It is only after Mangilal told that Rekha had been taken (Downloaded on 20/05/2022 at 08:40:12 PM) (12 of 21) [CRLAD-303/2019] away by the appellant then, finger of suspicion turned towards him. The witness stated that Mangilal shared this fact with him possibly on the night of the occurrence or on the next day thereof.
24. PW.14 Megharam is the another maternal uncle of the deceased. He stated that Rekha was married to the appellant whereas appellant's sister was married to Banshilal, brother of Rekha. Rekha was staying at her father's house for the last four months. This witness did not utter a single word in his statement that there was any discord between Rekha and her husband.
25. None of the prosecution witnesses stated that any attempt was made to resolve the misunderstandings or to send Rekha back to her matrimonial home. Megharam (PW.14), uncle of the deceased admitted that there was no such circumstance indicating that Devaram could murder Rekha. Apparently thus, the prosecution theory of motive attributed to the accused appellant for the alleged murder of Smt. Rekha is not palpable.
26. The next and most significant piece of circumstantial evidence which the prosecution has portrayed against the appellant is that of last seen together. Two witnesses Mangilal (PW.1) and Tararam (PW.6) were examined to prove this circumstance. We now proceed to closely scrutinize the testimony of Mangilal (PW.1). He stated in his examination-in-chief that on 14.09.2012, he was returning home from Sadri. On the way, he saw a white car standing on the road which passes in front of the (Downloaded on 20/05/2022 at 08:40:12 PM) (13 of 21) [CRLAD-303/2019] government school at Village Bali. Tararam Heeraghar was sitting on the wheel of the car and the appellant herein was sitting on the back seat wearing a red coloured t-shirt. Rekha W/o Deva Ram approached the car carrying a steel pot in her hand. She opened the gate and entered the car.
27. In the next breath, the witness stated that the jeep proceeded towards Sadri. He returned home on 17.09.2012 and heard that Rekha had been killed and the body had been cremated. On the next day, he went to Rekha's home and shared details of the preceding events with her relatives. The witness was shown some photographs in an attempt to get the car and its driver identified. In cross-examination, the witness admitted that between 14th to 18th September, 2012, he did not tell anyone that he had seen Rekha proceeding with Devaram. He did not hear from anyone in the village on 14 th and 15th September that Rekha had gone missing. He did not attend Rekha's funeral and claimed that he came to know about Rekha's death after the body had been cremated. He could not recall the registration number of the vehicle.
28. The evidence of this witness is totally unbelievable and he can be branded to be a total liar when we consider the testimony of Chunnilal (PW.16) father of the deceased who admitted in his cross-examination that he, his son Banshilal, Rekha's maternal- uncles Shri Ghisaram and Megharam, Mangilal S/o Shri Bhomaji and their relative Shri Bhagaram S/o Shri Motaji and few (Downloaded on 20/05/2022 at 08:40:12 PM) (14 of 21) [CRLAD-303/2019] other persons were present at Rekha's funeral. Till then, no one expressed suspicion on anyone regarding Rekha's murder. Shri Chunnilal admitted that they initially suspected that Rekha had eloped with some boy. Ghisaram (PW.5) stated that Mangilal was present with them when search was being made for Rekha right from the time of her disappearance till the dead body was discovered. These significant facts elicited in the evidence of Shri Chunnilal and Shri Ghisaram makes it clear that the claim of Shri Mangilal (PW.1) that he was unaware that Rekha had gone missing or that she had been murdered until after the dead body had been cremated i.e., on 18th September is totally false. The unnatural conduct of Mangilal in not disclosing the fact of having seen Rekha going away with the appellant in the car of Tararam even though he was all along participating in the search operations of the missing girl and was also present in her funeral makes it clear that he was created to be a witness of last seen circumstance because the IO was apparently not able to collect any significant evidence so as to link the appellant with the crime.
29. The next witness who gave evidence of last seen together and on whose testimony, heavy reliance has been placed by the trial court is Tararam (PW.6). He alleged in his testimony that he owned an Indica Car bearing registration No. RJ 22T 243 and operated the same as a taxi on the Bali taxi-stand. Devaram approached him and engaged the taxi for going to Jato Ki Doran, Sadri and to proceed further to Sevadi from there. He did not know Devaram from before. He took the passenger to Jato Ki (Downloaded on 20/05/2022 at 08:40:12 PM) (15 of 21) [CRLAD-303/2019] Doran via Bali and Sadri. They reached an agricultural field near the Jato Ki Doran. The time was about 3 O' Clock. Devaram made a call and told him that his wife was coming. About 5-10 minutes later, his wife came there. She was carrying a steel pot in her hand. He made an inquiry from the girl who replied that she was Devaram's wife. They proceeded to Bali. On the way, they made a stop at the shop of one Hari where Devaram tried to get his phone recharged but could not succeed. He offloaded Devaram and his wife near the Veer Baapji Than and collected the fare. The time was around 4:30 to 5:00 pm.
30. The witness was made to identify the lady who had boarded his taxi with the aid of the photograph Ex.P/10. In cross- examination, the witness admitted that without being solicited, he went to the police station four days after his taxi had been engaged and disclosed the entire sequence of events to the police. He saw Devaram on the fateful day for the first time and next he saw him in the Court. The woman who had accompanied Devaram in the taxi had covered her face with a veil. The police identified Devaram for him.
31. From a bare perusal of statement of Tararam, it becomes clear that he too has given a totally fictional evidence. Firstly, as the witness did not have a faintest idea that the female passenger who had travelled in his taxi had been murdered, there was no reason as to why without being solicited, he would proceed to the police station for giving the statement. Furthermore, the witness (Downloaded on 20/05/2022 at 08:40:12 PM) (16 of 21) [CRLAD-303/2019] did not know Devaram from before. He admitted in his cross- examination that Devaram met him for the first time when his taxi was engaged and the second chance of having a look at Devaram was in the Court. The witness also admitted that the police told him who Devaram was. In this background, identification of Devaram by this witness becomes doubtful. The witness also admitted that he did not know Devaram's wife and that the woman who had boarded his taxi had covered her face with a veil. Thus, there is no tangible evidence to satisfy the Court that the witness could have correctly identified Rekha as being the woman who has boarded his taxi.
32. There is yet another important circumstance which comes out from the statement of this witness. He stated that Devaram called his wife after reaching Jato Ki Doran and the time was around 3 O' Clock.
33. On the contrary, Megharam (PW.14) maternal uncle of Rekha from whose house she left under the pretext of going to meet her husband stated in his evidence that Rekha came to his house at Jato ki Doran between 4-5 O' Clock and left within twenty minutes. This being the situation, a grave doubt is created in the mind of the Court that even if there is a semblance of truth in the evidence of Tara Ram (PW.6) then too, Rekha was undoubtedly not the woman who boarded his car. The significant contradiction in timing of the events as reflected in evidence of Tararam (PW.6) (Downloaded on 20/05/2022 at 08:40:12 PM) (17 of 21) [CRLAD-303/2019] and Megharam (PW.14) creates a grave doubt on circumstance of last seen together heavily relied upon by the prosecution.
34. There is yet another important circumstance which creates grave doubt on the prosecution story. The prosecution witnesses have claimed that marital discord existed between Rekha and her husband. On the fateful day i.e., 14.09.2012, Rekha had gone to the house of her maternal uncle Ghisaram (PW.5) from where she proceeded to the house of another uncle Megharam (PW.14). There, she allegedly got a call from her husband i.e. the appellant herein and left her uncle's house to meet him. However, since no further information came around regarding Rekha's whereabouts, the family members panicked and made inquiries all over the places including from the matrimonial home of Rekha. Had there been an iota of truth in the theory that Rekha left house of Shri Megharam after receiving a call from her husband and thereafter, she went missing, then there was no reason as to why, a prompt FIR was not lodged with the police particularly when the prosecution witnesses have claimed that relations between Rekha and the appellant were strained. Had there been an iota of truth in this story, then, the maternal family members, in the normal course of events should have proceeded to the matrimonial home of Rekha so as to make an effort to trace her out. Efforts would also have been made to call the husband Devaram and to seek his explanation as to whether he had taken away Rekha with himself. Total lack of any such effort by the maternal family members makes it clear that the story that Rekha left her uncle's house on (Downloaded on 20/05/2022 at 08:40:12 PM) (18 of 21) [CRLAD-303/2019] receiving a call from the accused is nothing but a sheer concoction created posteriorly so as to fabricate evidence against the appellant.
35. The Investigation of the case was undertaken by PW. 33 Shri Chaturjbhuj, SHO PS Sadri. He made a deposition regarding registration of the FIR and the relevant steps of investigation including arrest of the accused appellant and the recovery of the steel pot allegedly made at his instance. In cross-examination, the IO admitted that Ghisaram, maternal uncle of the deceased did not mention in the Missing Person Report (Ex.P/9) that Rekha left his house on receiving her husband's call. It was not mentioned in the report that Rekha was having a mobile or a steel pot. No relative of Rekha cast a suspicion of Devaram right from the time of her going missing till the last rites had been carried out. The sim which was allegedly in use of Devaram was not issued in his name. He could not elaborate as to how the mobile phone of the deceased was recovered from Aburoad. The call detail records were downloaded by the computer operator Prahlad. No corresponding document for procuring the call detail records was procured nor was any certificate of the authorized officer taken. He did not make any investigation from the persons with whom Rekha had talked on 14.09.2012 and prior thereto.
36. The third circumstance which the prosecution relied upon was the alleged recovery of the steel pot being carried by Smt. Rekha at the instance of the appellant. In this regard, Banshilal (Downloaded on 20/05/2022 at 08:40:12 PM) (19 of 21) [CRLAD-303/2019] (PW.4) brother of Rekha clearly stated that the steel pot was recovered lying in the bushes nearby the dead body. Thus, the alleged recovery of the steel pot, attributed to the accused appellant is falsified and apparently, the investigation is tainted.
37. The last circumstance on which the trial court relied upon to base conviction of the appellant was in form of the call detail records. In this regard, suffice it to say that the prosecution did not prove the certificate under Section 65-B of the Evidence Act mandatorily required to admit the call detail records being electronic evidence as has been held by Hon'ble the Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. reported in AIR 2020 SC 1908. Consequently, this circumstance was not proved as per law.
38. Hence, we are of the firm view that the prosecution has failed to prove even a single of the four alleged incriminating circumstances on the basis whereof, the appellant has been convicted for the alleged murder of Rekha.
39. Law is well settled by a catena of precedents that in a case based purely on circumstantial evidence, the prosecution is required to prove every link in the chain of circumstances by leading clinching evidence so as to complete the chain pointing infallibly towards the guilt of the accused and incompatible with his innocence.
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40. In the case at hand, after thorough appreciation of the entire prosecution case, we have found that not even a single link in the chain of incriminating circumstances relied upon by the prosecution in the attempt to bring home the charges against the accused-appellant could be proved by plausible evidence. The prosecution case is comprised totally of conjectures and surmises and the evidence on record cannot be considered to be of sterling worth so as to affirm the guilt of the accused-appellant. The entire investigation is tainted and the Investigating Officer fabricated evidence in an attempt to prove the case and claim accolades for himself. The impugned judgment, in our firm opinion is based on a fanciful flight of conjectures and surmises and cannot be sustained.
41. In wake of the discussion made hereinabove, the impugned judgment dated 11.10.2019 is hereby quashed and set aside. The appellant is acquitted of the charges. He is in jail and shall be released forthwith, if not warranted in any other case. The appeal is allowed.
42. However, keeping in view the provisions of Section 437-A Cr.P.C. the accused appellant 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 (Downloaded on 20/05/2022 at 08:40:12 PM) (21 of 21) [CRLAD-303/2019] leave petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
43. Record be returned to the trial court forthwith.
(FARJAND ALI),J (SANDEEP MEHTA),J
Sudhir Asopa/-
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