Rajasthan High Court - Jaipur
Tejraj S/O Shri Syokaran B/C Gurjar vs State Of Rajasthan on 23 September, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 105/2019
Tejraj S/o Shri Syokaran B/c Gurjar, R/o Makrawad Ps Sangod
Kota Raj. At Present Confined In Central Jail Kota
----Appellant
Versus
State Of Rajasthan, Through PP.
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat Advocate. For Respondent(s) : Ms. Rekha Madnani for the State.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 23/09/2019 Appellant has filed this appeal challenging the judgment/order dated 21.12.2018 passed by the Trial Court, whereby, he was convicted and sentenced qua offence punishable under Sections 302, 397 and 457 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') in FIR No.23 dated 29.01.2013 registered at Police Station Sangod, District Kota Rural.
Prosecution story, in brief, as per the FIR is that complainant-Rameshwar Meena was residing with his family at Kota, whereas, his mother Dakha Bai was residing in the village Makrawad. On 29.01.2013, complainant received an information that his mother had been murdered by some unknown persons. He reached village Makrawad alongwith his family members and (Downloaded on 27/09/2019 at 09:04:22 PM) (2 of 11) [CRLAD-105/2019] saw that his mother was lying dead on a cot. Gold earrings and silver anklets worn by his mother were missing and Rs.10,000/- were also missing from the purse of his mother.
After completion of investigation and necessary formalities, challan was presented against the appellant.
Charges were framed against the appellant by the trial court under Sections 450, 457, 302, 397 IPC and Section 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Appellant did not plead guilty to the charges framed against him and claimed trial.
In order to prove its case, prosecution examined 19 witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case.
Appellant did not examine any witness in his defence. Learned counsel for the appellant has submitted that the appellant had been falsely involved in this case merely on the basis of recovery of jewelry articles. The independent witness, who had been joined at the time of recovery of articles, at the instance of the appellant had not supported the prosecution case, during trial. There were material discrepancies between the statements of prosecution witnesses regarding the time when the jewelry articles had been got prepared by the deceased. Appellant was arrested after two months and recovery of the jewelry articles was falsely foisted on him.
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(3 of 11) [CRLAD-105/2019] Learned State counsel has opposed the apppeal. Present case relates to murder of Dakha Bai. Case rests on circumstantial evidence.
It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:-
"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are (Downloaded on 27/09/2019 at 09:04:22 PM) (4 of 11) [CRLAD-105/2019] found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."
It has also been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. (AIR 1990 SC 79), 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 (Downloaded on 27/09/2019 at 09:04:22 PM) (5 of 11) [CRLAD-105/2019] 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 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 Maharashtra)."
Exhibit-P-9 is the post-mortem examination report of deceased Dakha Bai and a perusal of the same reveals that the deceased had died on account of compression of her neck leading to asphyxia. Post-mortem examination report of deceased Dakha Bai was proved by PW-8 Doctor Keshav Gupta and PW-9 Doctor Mamta Meena.
Let us examine the circumstances brought on record by the prosecution to connect the appellant with the crime.
Complainant-Rameshwar Meena while appearing in the witness box as PW-6 has deposed as per the contents of the FIR. He stated that he had identified the gold earrings and silver anklets belonging to his mother before the Tehsildar. The said witness in his cross-examination deposed that the appellant had no grievance against them and rather, he was being treated as a son.
PW-7 Narottam Bai, wife of the complainant deposed that her mother-in-law had been murdered by the appellant. Her (Downloaded on 27/09/2019 at 09:04:22 PM) (6 of 11) [CRLAD-105/2019] mother-in-law trusted the appellant. Appellant was not doing any work and was a liquor addict. In her cross-examination, she deposed that they had no dispute with the appellant and her mother-in-law used to treat him as her son.
Statement of PW-7 was recorded on 09.04.2013 under Section 161 Cr. P.C. The delay in recording of her statement renders her testimony doubtful. Her statement with regard to the involvement of the appellant in the crime is not corroborated by her husband.
PW-2 Ashok has deposed that he had gone to the house of Dakha Bai in order to switch on the motor in connection with water pipe fixed in the house of Dakha Bai. However, Dakha Bai had died and her earrings and mangal sutra were missing. He informed the son of the deceased in this regard. Statement of PW-2 is corroborated by PW-1 Ramkalyan and PW-18 Geeta Bai.
PW-10 Janki Bai deposed that Dakha Bai was her mother. Appellant was residing in the neighbourhood of her mother and was a drunkard and a thief. In her presence, appellant had asked for money from her mother and had left after taking Rs.100/- from her, but at that time, she had gone to the washroom. Appellant had also borrowed 40 Kilograms wheat and Rs.3,000/- from her mother. Her mother had told the appellant that he should first repay the earlier loan and then, she would give him more money. At the time of death of her mother, she saw that her gold earrings, silver anklets, gold nose pin and gold mangal sutra were missing. In her cross-examination, she admitted that her statement was not recorded by the police and she had named the (Downloaded on 27/09/2019 at 09:04:22 PM) (7 of 11) [CRLAD-105/2019] appellant on the basis of suspicion. She also stated that she had reached the spot in the morning on the next day after the death of her mother. She had reached the spot, half-an-hour before the arrival of her brother.
Although, PW-10 has deposed that her statement was not recorded by the police, but a perusal of the record reveals that her statement was recorded under Section 161 Cr.P.C. on 09.04.2013. The delay in recording of her statement by the police renders her statement doubtful. She had reached her mother's house on the next day of the death of her mother. She could have immediately got recorded her statement before the police, but her statement was recorded by the police on 09.04.2013. Moreover, she has named the appellant merely on the basis of suspicion. Hence, the statement of PW-10 fails to advance the prosecution case with regard to the involvement of the appellant in the crime.
PW-11 Gajanand deposed that on the day Dakha Bai had died, appellant had taken a liquor quarter from him and had given him Rs.500/-. In his cross-examination, he deposed that appellant was present in the village on the day Dakha Bai had been murdered. Appellant was doing labour work for his livelihood. Whenever, appellant needed money, he used to borrow from him and used to repay the same after doing labour work.
A perusal of the record reveals that the statement of PW-11 was recorded by the police on 23.03.2013. The delay in recording his statement by the Investigating Agency renders his statement doubtful with regard to the involvement of the appellant in the (Downloaded on 27/09/2019 at 09:04:22 PM) (8 of 11) [CRLAD-105/2019] crime. Hence, the statement of PW-11 fails to advance the prosecution case.
PW-12 Rambharos deposed that two days prior to the murder, mother of Rameshwar had told him that appellant had abused her. Thereafter, he had gone to his house. In his cross- examination, he deposed that in his presence, appellant had never demanded money from Dakha Bai nor he had ever seen her giving money to him. Appellant was doing labour work. Appellant was in the village on the day Dakha Bai had been murdered.
Thus, from the statements of the above witnesses, it cannot be said that the appellant had any motive to commit the murder of the deceased. Although, daughter of the deceased has stated that appellant had borrowed money from her mother, but she has also stated that in her presence, her mother had never given money to the appellant and she was naming the appellant on the basis of the suspicion. So far as the complainant is concerned, he has not attributed any motive to the appellant to commit the murder of his mother. So far as PW-11 is concerned, he is an agriculturist and it is not understandable as to how he sold a liquor quarter to the appellant for Rs.500/-. Rather, from the statement of PW-11, it transpires that appellant had been borrowing money from him and had been repaying the same after doing labour work. PW-12 has deposed that two days prior to the murder, appellant had abused the deceased and, thereafter, he had gone to his house. However, the said witness has also deposed in his cross-examination that appellant was doing labour work and he had never asked for money from Dakha Bai in his presence nor he had seen Dakha Bai giving money to him. (Downloaded on 27/09/2019 at 09:04:22 PM)
(9 of 11) [CRLAD-105/2019] Statement of Rambharos under Section 161 Code of Criminal Procedure, 1973, i.e., Exhibit-P-10 was recorded on 21.03.2013, whereas, the murder had taken place two months earlier. Hence, the statement of PW-12 is also rendered doubtful and fails to advance the prosecution case.
The only evidence left against the appellant is with regard to the recovery of jewelry articles of the deceased at his behest. Appellant was arrested on 24.03.2013 vide Exhibit-P-12. Appellant had allegedly suffered a disclosure statement on 25.03.2013 Exhibit-P-13 and on the basis of the same, the gold earrings and silver anklets of the deceased were recovered. Independent witness PW-13 Hariprasad with regard to the recovery of the jewelry articles at the instance of the appellant has not supported the prosecution case during trial. This witness has deposed that his signatures were taken by the police stating that they were required for investigation.
PW-6 Rameshwar Meena deposed that the earrings of his mother were got prepared by his father and his father had died in the year 2009. He stated that the silver anklets of his mother had been got prepared about 5/6 months back. PW-16 Dilip Kumar deposed that about six years back, silver anklets-in-question were got prepared from him after giving old silver. PW-10 Janki Bai, daughter of the deceased deposed that the silver anklets of her mother were got prepared about 20 days prior to the incident.
Thus, there are major discrepancies in the statements of the above witnesses. Jeweler has stated that he had prepared the silver anklets about six years back, whereas, the complainant has (Downloaded on 27/09/2019 at 09:04:22 PM) (10 of 11) [CRLAD-105/2019] deposed that silver anklets were got prepared about 5/6 months back and daughter of the deceased has deposed that the silver anklets were got prepared about 20 days prior to the murder.
Since, in the present case, the independent witness regarding recovery of the jewelry articles has not supported the prosecution case during trial and the fact that the appellant was arrested after two months and the statements of the witnesses implicating the appellant were also recorded after two months by the prosecution, we are of the opinion that it would not be safe to base reliance on the alleged recovery of the jewelry articles of the deceased at the instance of the appellant.
In the absence of any other corroborative evidence against the appellant, it would not be safe to base the conviction of the appellant on the basis of doubtful recovery of the jewelry articles of the deceased at his instance. Hence, we are of the considered opinion that in the present case, prosecution has failed to complete the chain of circumstances leading towards the guilt of the appellant.
It is a settled proposition of law that the prosecution is required to prove its case beyond the shadow of reasonable doubt against an accused. Accused is presumed to be innocent till proved guilty. However, in the present case, prosecution has failed to complete the chain of circumstances leading to the guilt of the appellant and negate the possibility of his innocence. In the present case, the possibility that somebody else might have committed the murder of Dakha Bai cannot be ruled out. Hence, appellant is liable to be acquitted by giving him benefit of doubt. (Downloaded on 27/09/2019 at 09:04:22 PM)
(11 of 11) [CRLAD-105/2019] Accordingly, appeal is allowed. Appellant is acquitted of the charges framed against him under Sections 302, 397 and 457 IPC. Consequently, impugned judgment/order passed by the trial court dated 21.12.2018 are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other criminal case.
In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Tejraj S/o Shri Syokaran is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall 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 aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Sanjay Kumawat-63
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