Rajasthan High Court - Jaipur
Ravindra Kumar vs State Of Rajasthan Through P.P on 13 May, 2019
Author: Goverdhan Bardhar
Bench: Sabina, Goverdhan Bardhar
(1 of 12) [CRLA-34/2013]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 34/2013
Ravindra Kumar Son of Shri Dayaveer @ Dayayand, by caste
Lodha, R/o Jatau, Police Station Amapur, Kashiram Nagar, U.P.
(Presently acused confined in Cenrtral Jail Jaipur).,
----Accused-Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat
For Respondent(s) : Ms. Alka Bhatnagar - PP
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
13/05/2019
(GOVERDHAN BARDHAR, J.):
Instant criminal appeal has been filed by the accused- appellant under Section 374(2) of the Code of Criminal Procedure, 1973 assailing the judgment of conviction and sentence dated 21 st December, 2012 passed by learned Additional Sessions Judge No.1, Kishangarhbas (Alwar) in Session Case No.28/2011, whereby the accused-appellant has been convicted and sentenced as under:
Under Section 302/34 IPC - Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo additional two months rigorous imprisonment.(Downloaded on 29/06/2019 at 12:41:31 AM)
(2 of 12) [CRLA-34/2013] Under Section 392 IPC - Ten years' rigorous imprisonment with fine of Rs.2,000/-, in case of default to pay fine, to further undergo additional one month rigorous imprisonment.
Under Section 201 IPC - Three years' rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo additional one month rigorous imprisonment.
Sentences were ordered to run concurrently.
Brief facts of the case are that on 21st September, 2010, Mohanlal, SHO, Police Station Kishangarhbas, District Alwar, received a call that an unidentified dead body has been found along the road of Village Bas Kripal Nagar. After receiving the information, he along with Circle Officer and photographer reached the place of occurrence and found that there were injuries on the dead body. The dead body was taken in possession by the police.
At that time, another information was also received that an unidentified dead body has been found lying along the road of Village Chamroda, Bhiwadi, Alwar. SHO along with Circle Officer reached the place of incidence and found that there were injuries on the dead body. After taking photographs of the dead body, the same was taken in possession by the police. On examination of dead bodies, it transpired that deceased had suffered injuries by sharp-edged weapons. To save themselves from the crime, offenders had thrown the dead bodies at different places. Dead bodies were kept in the government mortuary for identification. In this regard, information was given to the Superintendent of Police and case bearing No.300/2010 was registered for offences under Sections 302 and 201 IPC at Police Station Kishangarhbas. In pursuance to the directions of the Superintendent of Police, FIR (Downloaded on 29/06/2019 at 12:41:31 AM) (3 of 12) [CRLA-34/2013] was sent to the Circle Officer for investigation. After completion of the investigation, a charge sheet was filed against the accused in the Court.
After hearing the arguments, charges were framed against the accused for offence under Sections 302, 302/34, 392 and 201 IPC. Accused did not plead guilty and claimed trial.
During the course of trial, the prosecution produced 29 witnesses and got exhibited 77 documents to support its case.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. Accused did not produce any evidence in his defence.
The trial court, after marshalling the evidence, convicted the accused-appellants for the offence under Sections 302/34, 392 and 201 IPC.
Learned counsel for appellant has argued that the learned trial court failed to appreciate the fact that present case is based on circumstantial evidence as there is no eye-witness to the occurrence. In case of circumstantial evidence, the onus lies on the prosecution to prove the complete chain of events which should undoubtedly point towards the guilt of the accused. As per the statements of three witnesses namely, Jaswant Singh, Raghvendra, and Lakhan Singh recorded under Section 161 Cr.P.C., they had seen the deceased along with the accused. Hence, the deceased was last seen with the accused. The said witnesses were examined before the learned trial court as PW12, PW17 and PW23 respectively. They have not supported the prosecution case and were declared hostile. There is no evidence on record to show that appellant was a friend of co-accused Rajiv. (Downloaded on 29/06/2019 at 12:41:31 AM)
(4 of 12) [CRLA-34/2013] The learned trial court mechanically mentioned at Page 19 of the impugned judgment that appellant is friend of co-accused Rajiv.
Learned counsel for appellant further argued that the investigating agency deliberately and falsely implicated the appellant in the case. Investigating Officer falsely recorded statements of last seen witnesses Shri Jaswant, Raghvendra and Lakhan Singh. It is surprising that investigation agency did not conduct identification parade. The motive of robbery is not well founded from the facts of the case. Admittedly, salaries to some employees were disbursed, hence, if the motive of murder was for robbery of salary then money ought to have been looted at the first instance.
Learned counsel for the appellant further argued that recoveries have not been made in accordance with law and were not admissible in evidence. The recovery of bloodstained "jack" of vehicle (Exhibit-P-41) was shown from the appellant, whereas, as per seizure memo of the Van, "Jack" was also available. The chance prints were taken and compared but these finger prints were not mentioned in Exhibit-25 & 27. The 'Bag' recovered from the appellant was not identified by the concerned person. As per the settled legal position, the expert opinion is of "Frail" character and it cannot be relied in isolation. Learned trial court failed to appreciate that the expert opinion i.e. Ex-P/70 has not legally been tendered in evidence and to prove this report as expert was not examined by the prosecution. Hence, the report Ex-P/70 cannot be read in evidence.
Learned counsel for the appellant further argued that fingerprints were taken in the presence of Ghanshyam and Prahlad (Downloaded on 29/06/2019 at 12:41:31 AM) (5 of 12) [CRLA-34/2013] and prosecution deliberately withheld the above witnesses during trial. Most of the witnesses are police personnel and their testimony suffers from serious contradictions and omissions. The independent witnesses have not supported the case of the prosecution.
Learned counsel for the appellant further argued that the F.S.L. report (Ex-P/71) was not proved by the expert, hence, it cannot be read in evidence. Blood group was not ascertained from the recovered articles. Thus, the main link evidence is missing.
Learned Public Prosecutor appearing for the State has opposed the appeal and supported the impugned judgment/order of conviction and sentence passed by the trial court.
We have considered rival submissions of learned counsel for the parties and perused the record carefully.
In Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. reported in (1989) Supp. (2) SCC 706, Hon'ble Apex Court observed as under:
"10. ..... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and (Downloaded on 29/06/2019 at 12:41:31 AM) (6 of 12) [CRLA-34/2013] incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(See Gambhir v. State of Maharashtra2.)
11. See also Rama Nand v. State of Himachal Pradesh3, Prem Thakur v. State of Punjab4, Earabhadrapa alias Krishnappa v. State of Karnataka5, Gian Singh v. State of Punjab6, Balwinder Singh v. State of Punjab.7"
In Mulakh Raj & Ors. Vs. Satish Kumar & Ors.
reported in (1992) 3 SCC 43, Hon'ble Apex Court further observed as under:
"4. ......Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow."
(emphasis supplied) (Downloaded on 29/06/2019 at 12:41:31 AM) (7 of 12) [CRLA-34/2013] PW22-Mohan was posted as SHO at Police Station Kishangarhbas, Alwar. He received information by telephone on 21st September, 2010 at 6.40 AM that two unidentified bodies are lying along the road of Village Bas Kripal Nagar and Village Chamroda, Bhiwadi, Alwar. On the basis of aforesaid information, FIR No.300/10 (Exhibit-P54) was registered on 21st September, 2010 at 4.15 PM for offence under Sections 302 & 201 IPC. He deposed that neither footprints nor tyreprints were found at the place of occurrence where the dead bodies were found.
During trial, PW9-Jitendra Sharma deposed that his father was working in GI Security Network Technology Limited, Delhi. He used to visit UP, Rajasthan and other places in connection with company affairs and distribution of salary to the employees. On 20th September, 2010, his father told him that he was going to Jaipur on account of company's work along with Nitin Kumar, Accountant and Rajiv Kumar (Driver). On 29th September, 2010 after 9.00 PM, he had no contact with his father. On 21 st September, 2010, they could not contact his father. On 22 nd September, 2010, the company informed him that dead body of his father and dead body of Accountant were lying in Mortuary, CHC Hospital. He identified the dead body of his father and saw that there were injuries on his face caused by sharp-edged weapon. Ex.P16 seizure memo of dead body of deceased- Karyanand Sharma was prepared.
It is admitted case of the prosecution that on 20 th September, 2010, Karyanand Sharma, Area Manager and Nitin Kumar, Accountant of GI Security Network Technology Limited, Delhi went along with Rajiv, Driver of the Maruti Van. So far as (Downloaded on 29/06/2019 at 12:41:31 AM) (8 of 12) [CRLA-34/2013] appellant-Ravindra Kumar is concerned, there is no direct evidence against him. According to the prosecution, accused- Ravindra Kumar was arrested on 26 th October, 2010 vide Exhibit- P37.
PW6-Ramesh Chand Kaul deposed that on 29 th September, 2010, Karyanand Sharma, Area Manager and Nitin Kumar, Accountant went towards Alwar in connection with company affairs in a Maruti Van. The driver of Maruti Van was Rajiv Kumar. Ramesh Chand Kaul identified the Driver Rajiv Kumar in court and further deposed that after 8.45 PM, he could not contact the aforesaid employees. On 21st September, 2010, Mr.Santosh Kumar, Accountant, informed that there was no contact with the employees. He started receiving calls from the place where payment was to be made. Santosh Kumar, Accountant, informed from Jaipur that no one from the company had reached there and Shersingh, Supervisor, also informed that none had arrived from the company. Thereafter, they got information about murder of Karyanand Sharma and Nitin Kumar.
During investigation, one Maruti Van (Omni) was seized under Section 102 Cr.P.C. which was required in Criminal Case No.300/10 registered for offence under Sections 302 and 201 IPC at Police Station Kishangarhbas, Alwar. According to the prosecution and at the instance of accused, one "Jack" containing human blood was recovered and appellant disclosed the place where dead bodies had been thrown. Dead bodies had already been recovered by the police. Except this disclosure statement, there is nothing on record to suggest involvement of accused- Ravindra Kumar in the crime.
(Downloaded on 29/06/2019 at 12:41:31 AM)
(9 of 12) [CRLA-34/2013] PW12-Jaswant Singh deposed that in the year 2010 at about 8.00 PM, Maruti Van had arrived and Supervisor had received the payment.
PW16-Santosh Kumar Thakur, Chief Accountant of the Company, deposed that he received information between 8.00 PM to 8.30 PM regarding disbursement of amount of salary at Bhiwadi and Karampura. PW16 further deposed that deceased Karyanand Sharma and Nitin Kumar went in the Maruti Van along with Driver Rajiv Kumar.
PW12, PW17 and PW23 have not supported the prosecution case during trial. Moreover, there is nothing on record to suggest that appellant-Ravindra Kumar was involved in committing any loot.
The next circumstance against the accused is that from Maruti Van, which was seized under Section 102 Cr.P.C. at Police Station Brahampuri, Jaipur, chance prints were taken and compared with the fingerprints of the accused. FSL report (Exhibit-P70) reveals similarity of chance prints with fingerprints of accused-Ravindra. The fingerprints were lifted by witnesses Ghanshyam, Head Constable and Prahlad but they were not examined during trial. Prosecution failed to produce the witnesses who took the photographs of the fingerprints for examination. Accused-Ravindra cannot be connected with the crime on the basis of recovery of lathis, safi, wheel pana, etc. as there is no evidence that human blood found on lathi, safi, wheel pana are of one blood group.
It is also alleged that during investigation looted bag and "Jack" of the Maruti Van used for committing murder were (Downloaded on 29/06/2019 at 12:41:31 AM) (10 of 12) [CRLA-34/2013] recovered at the instance of accused-Ravindra Kumar. No independent witness has supported the aforesaid recoveries.
Exhibit-P70 is the result of chance prints which cannot be treated as substantive piece of evidence without its corroboration and cannot be made basis of conviction of the accused. The vehicle was seized under Section 102 Cr.P.C. The prosecution failed to establish that chance prints were prepared on the spot and were sent immediately to the FSL. Thus, no reliance can be placed on the same in order to connect the appellant with the commission of the crime.
In the case of Chandran @ Surendran & Anr. Vs. State of Kerala, reported in AIR 1990 SC 2148, robbery and murder were committed and the case was based on circumstantial evidence. Fingerprints found on two pieces of glass at the place of occurrence tallied with the fingerprints of the accused and some recovery was also made at the instance of the accused. It was held by the Apex Court that these were scanty pieces of circumstantial evidence and it was highly hazardous to base conviction of the accused. The relevant Paras 25 and 26 of the said judgment are quoted hereunder:
"25. In passing, it may be mentioned that the photographer (charge sheet witness No.40) who took the photographs of the finger prints was not available for examination. Though the evidence of PW-30 by itself is free from any infirmity, we are unable to sustain the conviction of these two appellants on the opinion of PW-30 alone as we have entertained a lurking suspicion in our mind about the manner in which the evidence had been obtained as indicated above. Further it is highly hazardous to rely on these two scanty pieces of circumstantial evidence which are brought on record in a very unsatisfactory and loath-(Downloaded on 29/06/2019 at 12:41:31 AM)
(11 of 12) [CRLA-34/2013]
some manner and which lack guarantee to inspire
confidence.
26. We may, in this connection, quote an observation made by a Bench of this Court in Birdhi Chand Sarda Versus State of Maharashtra 1985 (1) SCR 88, reading as follows:
"A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law.........It must be realised that the well established rule of criminal justice is that 'fouler the crime higher the proof'."
In the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt qua appellant. The circumstances brought on record against the appellant fail to rule out the possibility that somebody else might have committed the crime and unerringly point towards the guilt of the appellant. We are in total disagreement with the findings of the trial court.
Consequently, this criminal appeal filed by the accused- appellant is allowed. The judgment of conviction and sentence dated 21st December, 2012 passed by the Additional Sessions Judge No.1, Kishangarhbas, Alwar in Session Case No.28/2011 is set aside to the extent of appellant-Ravindra Kumar. The accused- appellant is acquitted of the charges framed against him for offence under Sections 302/34, 392 and 201 IPC. Since the accused-appellant is in jail, the Superintendent, Central Jail, Kishangarhbas, Alwar is directed to release the accused-appellant forthwith, if not required in any other case.
As per Section 437-A of the Code of Criminal Procedure, accused-appellant-Ravindra Kumar is directed to furnish a (Downloaded on 29/06/2019 at 12:41:31 AM) (12 of 12) [CRLA-34/2013] personal bond in the sum of Rs.25,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant will appear before the Supreme Court on receipt of notice thereof.
(GOVERDHAN BARDHAR),J (SABINA),J
FATEH RAJ BOHRA /6
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