Rajasthan High Court - Jaipur
Suresh Kumar vs State on 8 September, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. CRIMINAL APPEAL NO.105/2004 Suresh Kumar Vs. State Date of order : 8/9/2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE S.S. KOTHARI Shri G.C. Gupta) Shri Yogesh Gupta ) Ms. Usha Gupta) for the appellant. Shri J.R. Bijarniya, PP for State. ****** REPORTABLE (Per Hon'ble Mohammad Rafiq, J.) This appeal has been filed by accused-appellant Suresh Kumar assailing the judgement of the learned Additional Sessions Judge (Fast Track) No.2, Sikar Camp Neem Ka Thana dated 25.11.2003. By the aforesaid judgement, the appellant was convicted for offence u/s.302 of IPC and sentenced to life imprisonment and fine of Rs.1,000/-, in default of which, he was to additionally undergo rigorous imprisonment of six months. He was also convicted for offence u/s.392 of IPC and sentenced to undergo rigorous imprisonment of ten years with a fine of Rs.1,000/-, in default of which he was to further undergo rigorous imprisonment of three months. Both the sentences were ordered to run concurrently. It may be at the outset noted that appellant is in jail for last more than nine years. Facts giving rise to this appeal are that a written complaint (Ex.P2) was submitted by one Shatrugan Sharma, brother-in-law of the deceased (sister's husband) on 29.7.2002 at Police Station Ajitgarh, Neem Ka Thana, District Sikar u/s.302, 392 and 34 of IPC inter alia alleging therein that his brother-in-law Kailash Chand Sharma S/o Makkhan Lal Sharma, b/c Brahmin, r/o Rampura, Police Station Shahpura, District Jaipur, Aged 20 years was engaged in the work of photography at Village Khatkad Ajmeri, Kishorpura. He has been murdered the previous night by two-three unknown persons at the agricultural field of Danaram Khatik, which is situated in the forest of Village Raipur Jagir. He was murdered by throttling with a lungi. Effort was made to disfigure his face by rubbing it against trunk of the tree of Janti. Deceased-Kailash sustained several injuries on his body. On receiving information about the death of a person in his village, the informant came to the place of incident. On carefully looking at the place of incident, he could make out that deceased Kailash had tried to run away. There are footprints of slippers and shoes of those who had followed the deceased and ultimately killed him. Kailash used to carry a camera with him, which has also been looted. It is therefore prayed in the written complaint that action be taken against the culprits. On receipt of the aforesaid written complaint, a regular first information report Ex.P43 was registered by the police and investigation commenced. During investigation, the accused-appellant was arrested vide Ex.P7. The investigating agency filed challan solely against the accused appellant for offence u/s.302 and 392 of IPC. The prosecution produced as many as 40 witnesses in support of its case and exhibited 48 documents, whereas the accused in his defence produced 11 documents though no witness was produced by him. In his statement under Section 313 of Cr.P.C., he denied the allegations by stating that he is innocent and has been falsely implicated in this matter. He did not give any information to the police under Section 27 of the Evidence Act, nor did he get any recovery made. Police has fabricated all the papers and forceably got his signatures on 5-6 blank papers. The learned trial court on conclusion of trial, convicted the accused-appellant for the offence u/s.302 and 392 of IPC and sentenced him to imprisonment and fine as indicated above. Hence this appeal. We have heard Shri G.C. Gupta, learned counsel for the appellant and Shri J.R. Bijarniya, the learned Public Prosecutor.
Shri G.C. Gupta, learned counsel for the appellant has argued that the conviction of the accused-appellant has been recorded solely on the basis of circumstantial evidence, which has not been properly appreciated by the learned trial court. In fact, it is a case of zero evidence against the accused-appellant and that he has been made victim of circumstances. Evidence clearly show that accused-appellant and deceased were close friends. They were doing the work of photography together. This was their only source of earning livelihood. Evidence also show that accused-appellant accompanied the deceased upto village Katkad Ajmeri, Kishorpura and thereafter they parted company because deceased had to go to his sister's place at Village Raipur Jagir. Since deceased and the accused-appellant were jointly doing the work of photography and that the deceased also sometimes gave his camera to the appellant, the fact that accused appellant was retaining his camera could not be taken as incriminating circumstances against him. Conviction of the accused-appellant recorded by the learned trial court solely based on evidence of last seen and recovery of camera cannot at all be justified.
Learned counsel argued that there was no motive for the appellant to commit murder of deceased Kailash, who was both his partner and friend. The allegation that he has murdered him only for camera, which was a make of Casino company and not much costly, hardly inspires any confidence and does not connect the accused with the crime. All these facts, do not make a complete chain of circumstances to indicate towards the guilt of accused-appellant alone and none else and they are also not such, which rule out every other possibility that may be consistent with his innocence.
Shri G.C. Gupta, learned counsel for the appellant has argued that the allegation in the written complaint Ex.P-2 submitted by PW-3 Shatrughan Sharma that at least two to three persons joined together to murder deceased and this fact was verifiable from the footprints of slippers and shoes on the ground also indicates that deceased was chased by the accused and was then murdered. No investigation on that theory was made by the police. PW-3 Shatrughan Sharma in his statement before the Court has stated that he had doubt that Suresh Kumar might have murdered his brother-in-law. No one can be held guilty merely on the basis of suspicion, howsoever strong that may be. Learned counsel argued that this witness has further stated that house of Suraj Mal Jat was only about 400 yards towards north of the place of incident, where he was also running a Saw Mill. On the other side of the road, there was house of Asa Ram Master. The houses of Yadavs' were there in the southern side of the place of incident. The houses of Gendaram, Sundaram and Baggaram were situated near the house of Asa Ram Master. When the police reached site of incident, Sural Mal was not there though both his sons were available; Asa Ram was also not there, but his sons and wife were present; Bhanwar Lal was also not available, but his wife was there. None of the neighbourers or those who were shown present, were examined by the prosecution. This witness PW-3 Shatrughan Sharma, in the opening of his statement before the Court stated that he was informed by wife of Kalla Ram that a dead body was lying in the agricultural field of Danaram, but even then this lady has not been examined as a witness. Learned counsel argued that evidence of last seen is a weak nature of evidence and that this alone cannot be a basis for conviction of the accused-appellant, particularly when the accused-appellant and the deceased used to work together and for that purpose, they used to visit many houses of village Khatkad Ajmeri, Kishorpura and adjoining villages for photography and that on that day also they went to different houses of village Khatkad Ajmeri, Kishorpura. Learned counsel in this connection referred to the statement of PW-16, Hari Ram, PW-17 Om Prakash, PW-23 Manni Devi, PW-24, Gumana Ram, PW-25 Suwa Lal, PW-26 Prahlad, PW-27 Jagdish and also PW-28 Babu Lal. All these witnesses stated that accused-appellant was with deceased and they visited their houses for photography, but it has also come on record in some of these statements that deceased told that he would be going to his sister's place at Raipur Jagir. PW-16, Hariram stated that accused-appellant was resident of Khatkad Ajmeri, Kishorpura and deceased Kailash was resident of Rampura. He stated that he was an employee in the dairy of Hanuman Jat at Village Khatkad and accused-appellant and deceased Kailash used to do the work of photography in all the adjoining villages. They asked the son of Hanuman Jat i.e. Om Prakash to get them a cup of tea. Om Prakash got three cups of tea from the tea stall of Babu Lal, which they had. Both of them left towards village Katkhad. PW-17, Om Prakash whose name was mentioned the statement of PW-16 Hariram stated that when he enquired from deceased Kailash as to where was he going, he (Kailash) told him that he was going to his sister's Village at Raipur Jagir. On his askance, he brought two cups of tea and made them into three parts which was consumed by deceased, accused-appellant and Hari Ram. PW-18 Ramjilal who was running a hardware shop at village Khatkad has stated that both the accused-appellant and the deceased came to his shop at about 5.00 PM of that day. They were known to him because he told Suresh only 2-3 days ago that he should go and get snaps of Gumana Ram, Manni Devi, Suwa Lal, Ramdhan, Jagdish etc. and the expenses thereof shall be borne by Ghuda Ram. This explains why accused-appellant and the deceased went to take snaps of PW-23 Manni Devi, PW-24 Gumana Ram, PW-25 Suwa Lal and PW-27 Jagdish and that these witnesses stated that the accused-appellant and the deceased came to their house for taking their photographs and said that Ramjilal has sent them to take their snaps. They did not charge any money saying that they would take the same from Ghuda Ram. Remaining witness of last seen PW-28 Babu Lal has also merely stated that both accused-appellant and the deceased came to the dairy of Hanuman from the side of Kishorpura. Babulal who is the tea stall owner, stated that Prakash son of Hanuman got two cups of tea made from him for them, which they had consumed.
Shri G.C. Gupta, learned counsel for the appellant submitted that the learned trial court has failed to correctly appreciate the factum of injuries on the person of the accused and blood stained shirt and pant of the accused. It was argued that the appellant on that basis alone could not be connected with the crime. In this regard, reference was made to Ex.P-47, the information said to have been given by the accused-appellant to the Investigating Officer under Section 27 of the Evidence Act to say that he could get the camera recovered from Satish Kumar Sharma, who was his cousin, being son of his maternal uncle. Learned counsel submitted that there was nothing unusual if camera was retained by the accused-appellant because witnesses of the prosecution have stated that at times, camera used to be carried by the accused-appellant. In this connection, learned counsel referred to the statement of PW-3 informant Shatrughan, who stated that deceased and appellant were close friends and also stated that the accused-appellant has another camera of his own and that it is not in his knowledge that deceased used to lend his camera to accused-appellant Suresh Kumar without charging any rent. Learned counsel therefore argued that PW-14 Santosh stated that accused appellant had come to Behror and that time he took his photographs and then borrowed a sum of Rs.100 from him saying that he had to go to Delhi and left a bag containing camera with him saying that while returning from Delhi, he will collect it. He gave exactly the same version when his statement was recorded before the Magistrate u/s.164 of Cr.P.C., which is on record at Ex.P-14. In fact, in his statement, this witness has stated that when he enquired from accused-appellant as to whose camera was it, he informed that the camera belongs to Kailash. Had the accused-appellant been having guilty mind, he would not have stated so. His natural conduct would have been to conceal this fact from Santosh. PW-29 Budhi Ram brother of the deceased has stated that accused-appellant Suresh had learnt the art of photography from his brother Kailash. He stated that Suresh used to frequently visit house of the deceased Kailash and he (Kailash) would also go to the house of accused Suresh. Both of them used to do photography in adjoining villages like Raipur and Katkad Ajmeri, Kishorpura in family function like marriage, engagement etc. and at times they used to do so on credit basis. PW-30 Ratan Devi, mother of the deceased also stated that Suresh learnt the art of photography from deceased Kailash and both became close friends. They used to visit each other's houses. PW-31 Shanker Lal Sharma, another brother of deceased has stated that the black colour camera was of Casino company. He as well as Kailash used to use the same camera for photography. Deceased Kailash left the village Rampura at about 10.00-11.00 AM in the morning on 28.7.2002 saying that he would take some photograph at village Chapra and thereafter would go to village Khatkad. He would either return back on the evening of that day or would go to his sister's house at Raipur Jagir. He too has stated that both Suresh and Kailash were close friends. They used to visit each other's house and sometimes used to stay there. Deceased used to lend his camera to Suresh some time without charging any rent. PW-32 Makkhan Lal, father of the deceased has also given the same statement as given by his son PW-31 Shanker Lal Sharma.
Learned counsel argued that alleged information given by the accused-appellant to the police under Section 27 of the Evidence Act vide Ex.P47 that he had burnt the negative of the camera in the factory area of Behror and could get the same recovered, is a story concocted by the police. There is no explanation why accused would burn the negatives of the camera.
Learned counsel argued that learned trial court has not been able to properly appreciate the evidence when it held that the injury on the person of the accused-appellant and the blood stained marks on his clothes connects the accused with the murder of the deceased. Learned counsel in this connection referred to the statement of PW-4 Jhabbar Singh, the Constable posted at Police Station Ajitgarh, who has stated that he along with SHO arrested the accused at Triveni Dham Mode. They did not prepare his arrest memo there because they had to interrogate him at Police Station. The SHO interrogated the accused-appellant at Police Station for about half an hour. About 2-4 persons were present in Triveni Dham at the time when accused-appellant was arrested. It took about 15-20 minutes time to bring him to Police Station. When asked in the cross examination, this witness stated that he was not aware whether accused-appellant was subjected to medical examination by the police. He further stated that the SHO after half an hour of his arrest, noticed blood stains on his clothes and then the accused was undressed and his clothes were taken into possession. PW-13 Nekiram, Constable has stated that arrest memo of the appellant was prepared at the Police Station but wherefrom the police brought the accused-appellant to the Police Station was not known to him because he was not member of the police party. After some time, his brother Kailash came to the Police Station. Village of the accused-appellant is situated about 15-20 kms. from the Police Station. Clothes of the accused were taken possession of by the police and he was kept in underwear and vest. Learned counsel also referred to the statement of PW-39 Banna Ram, ASI and PW-40 Balram Singh, the then SHO, who stated that when the accused-appellant was arrested, his pant and shirt had blood stain marks, which were seized. He gave information for recovery of camera under Section 27 of the Evidence Act. When asked the Investigating Officer PW-40 Balram stated that he did not get footprints from the site of the incident because there was lot of crowd there. This witness did not give any explanation when injuries were shown in the arrest memo of the accused, why was he not subjected to medical examination to determine his age. It is submitted that not only injuries of the accused were not got examined to show that they proximated to the time of death of the deceased and his blood group was also not got determined. Besides that, the Forensic Science Laboratory report has been though determined as regard the blood group of the appellant to rule out possibility that his blood too was of A group, which is alleged to have been matched with the clothes of the deceased in Ex.1, 2 and 4 from packet-D with shirt of the accused-appellant in Ex.5 from packet-E. It sounds highly unnatural that even though the accused-appellant would be having blood stains on his shirt and pant, yet he would have confined to wear these clothes not only on 28th and 29th but also on 30th, when he was arrested by the police. In fact, on his return back from Delhi, accused-appellant came to his native place and in that state, he was arrested. If he would be of guilty mind, there was no reason, he would come back to his village.
Learned counsel in support of his arguments cited judgements of Supreme Court in State through Central Bureau of Investigation vs. Mahendra Singh Dahiya-(2011) 3 SCC 109, Khalil Khan vs. State of M.P.-(2003) 11 SCC 19, Harishchandra Ladaku Thange vs. State of Maharashtra-2007 (2) WLC (SC) Criminal 743, Venkatesan vs. State of Tamil Nadu-2009 (1) Western Law Cases (SC) Criminal 81 and Basavaraja & Ors. vs. State of Karanataka-2009 (1) Western Law Cases (SC) Criminal 577. It is therefore prayed that the impugned judgement be therefore set aside and the accused-appellant be acquitted.
Per contra, Shri J.R. Bijarniya, learned Public Prosecutor opposed the appeal and argued that the chain of circumstances against the appellant is so complete as to exclude any possibility of his being innocent and points to his guilt alone and none else. Last seen evidence against the accused-appellant in the present case is so strong as to conclusively prove his guilt. Number of prosecution witnesses proved that it was he, who accompanied the deceased till last. Learned counsel in support of his arguments referred to the statement of PW-16 Hari Ram, PW-17 Om Prakash and PW-18 Ramji Lal and PW-28 Babu Lal to prove the fact that both of them had gone to the dairy of Hanuman Jat and asked PW-17 Om Prakash to get tea for them, which he brought from the tea stall stall of PW-28 Babulal. Learned counsel argued that PW-23 Manni Devi and PW-24 Gumana Ram have stated that both accused and deceased came to their house and took photographs saying that payment thereof shall be made by Ghudaram. PW-25 Suwa Lal and PW-27 Jagdish have corroborated the fact and stated that the accused-appellant and deceased came to them and took their snaps. They were together that evening. Learned Public Prosecutor argued that even though PW-36 Naresh has been declared hostile because he did not recognise another person who accompanied Kailash i.e. the accused-appellant, but nevertheless he stated that deceased was accompanied by one more person. This is oral evidence in respect of last seen of the accused-appellant. It was argued that when the accused-appellant was arrested, his shirt and pant were having blood stains and that in FSL report Ex.P48, the Rh group of blood stain contained on his shirt matched with the blood found on the shirt, pant and lungi, recovered from the dead body of deceased. This is clinching evidence against the accused-appellant, which conclusively connects him with the offence.
Learned Public Prosecutor argued that motive for the appellant for committing murder while snatching the camera and ultimately the camera was recovered on the basis of information given by his cousin PW-14 Santosh Kumar, but it has also come in evidence that the negative on which deceased had taken snaps of several persons was also burnt by him, ashes of which were recovered. Learned Public Prosecutor argued that mere fact that five injuries were found on the person of the accused-appellant in the arrest memo could not be explained, cannot be a reason to discard entire prosecution evidence. Learned Public Prosecutor argued that apart from this, PW-19 Jai Ram in his statement has stated that the accused-appellant confessed to him that he murdered deceased because he abused him. It was argued that the site plan Ex.P-4 and another site plan Ex.P13 clearly shows that accused appellant accompanied the deceased till last upto the place-H i.e. residence of Jai Ram and therefore, it is but natural that it is he alone, who would have accompanied him upto the field of Dhana Ram Khatik where the deceased was ultimately murdered. It was argued that the dead body of the deceased was found about 1 km away from the village of his sister i.e. Raipur Jagir, whereas the accused appellant was resident of Katkad Ajmeri, Kishorpura and deceased was resident of Rampura. The village Katkad Ajmeri, Kishorpura is about 10 kms. away from Village Raipur Jagir. It is therefore prayed that the appeal be dismissed.
We have given our anxious consideration to the rival submissions and perused the material on record.
It may be at the outset noticed that conviction on circumstantial evidence can be founded only if all the circumstances against the accused makes a chain of circumstances so complete as to rule out every other hypothesis that may be compatible with his innocence and points towards guilt of the accused and none else. The argument that has been made by the Learned counsel for the appellant and learned Public Prosecutor have to be therefore tested on the anvil of this cardinal principal of law.
First of all, we have to examine whether evidence of last seen against the accused-appellant is so strong as to obviate the necessity or any other proof and justify his conviction. Witnesses of last seen can be broadly divided into two parts. First is that part when the accused appellant and the deceased were sent by PW-18 Ramji Lal for taking photograph PW-23, Manni Devi, PW-24, Gumana Ram, PW-25 Suwa Lal, and PW-27 Jagdish and after taking their photographs told them that the expenses thereof shall be borne by Ghudaram. These witnesses have merely stated that accused-appellant and deceased came together to take their photographs. The deceased was carrying a black bag. Another category of witnesses is of those who stated that accused-appellant as well as the deceased came to the dairy of Hanuman Jat where deceased asked PW-17 Om Prakash that he should get tea for them. Om Prakash then went to the adjoining tea stall of PW-28 Babu Lal and got two cups of tea, which all of them consumed by dividing into three parts. Then they proceeded towards Village Katkad. PW-17 Om Prakash, who has been described as close friend of deceased Kailash by his brother-in-law PW-3 Shatrughan Sharma has stated that upon his askance as to where deceased was going, he (deceased) told him that he would be going to his sister's home at Village Raipur Jagir. Witnesses of last seen PW-28 Babu Lal Mali, the tea stall owner and PW-16 Hari Ram and PW-17 Om Prakash, thus only proves that they shared a cup of tea at the dairy of Om Prakash, which in fact was dairy of Hanuman Jat at Katkad Ajmeri, Kishorpura where both employee Hari Ram and son of Hanuman Jat i.e. Om Prakash were present. If the accused appellant was keeping company with the deceased upto the point of dairy and beyond that to certain point at Village Katkad, wherefrom it has come in evidence, that deceased was to go to his sister's place at village Raipur Jagir, evidence of last seen alone upto that point cannot be taken as conclusive evidence against the accused-appellant to prove his guilt beyond reasonable doubt that it was he alone, who murdered the deceased.
Now coming to the question of camera being motive of murder of deceased, PW-14 Santosh stated that accused appellant had come to Behror and that time he took his photograph and of other staff members and then borrowed a sum of Rs.100 from him saying that he had to go to Delhi and left a bag containing camera with him (Santosh) saying that while returning from Delhi, he will collect it. This witness has given exactly the same version when his statement was recorded before the Magistrate u/s.164 of Cr.P.C., which is on record at Ex.P-14. In fact, this witness has in his statement stated that when he enquired from accused-appellant as to whose camera was it, Suresh informed that the camera belongs to Kailash. Had the accused-appellant been having guilty mind, he would not have stated so. His natural conduct would have been to conceal this fact from Santosh. Thus, this also cannot be taken as a evidence so strong against the accused-appellant as to hold him guilty and sustain his conviction for offence u/s.392 of IPC and 302 of IPC.
The fact that accused-appellant when he was arrested had blood stain marks on his shirt and pant has to be analysed in the light of the fact that incident is alleged to have taken place in night intervening 27th-28th of July, 2002 and PW-14 Santosh, cousin of the accused, has stated in statement u/s.164 of Cr.P.C. as also in the Court statement that the accused-appellant came to him at 9.30 AM on 29.7.2007. He told him that he was going to Delhi. He had one camera with him. When Santosh enquired from him about the camera, he stated that this camera belongs to Kailash. He had his meals there and then took 11 photographs of all the staff members. He got them developed at Kotputli and came back to Behror. He handedover photographs and negatives to him and then borrowed a sum of Rs.100 from him to go to Delhi. Accused Suresh requested Santosh that he should keep the camera with him and while returning back, he would collect the same. This is an innocuous statement made by Santosh Kumar, which hardly provides any incriminating evidence against the accused-appellant. Whatever was stated before the learned Magistrate u/s.164 of Cr.P.C. has been reiterated by him in his court statement. Besides, it would be against normal human conduct that accused, who had murdered someone would go to his native place wearing the same pant and shirt, having blood stains marks on them and when enquired from him whose camera he was carrying, telling that this camera belongs to Kailash and would also take as many as 11 snaps of the staff members. This does not rule out the possibility that the accused-appellant, as he had been doing in the past, might have borrowed the camera from the deceased or deceased might have handed over the camera to be given to him after he returned from his sister's place. It is not clear as to why the accused appellant would burn the negatives, which they had exposed the real together only two days before. Recovery of the ashes of the burnt negatives became doubtful. Moreover, witness of recovery PW-10 Naitram stated that he was not aware from which place such ashes were recovered. Another witness of recovery PW-11 Shri Kishan also in his cross examination stated that he cannot say whether ash recovered by the police was of burnt negatives. This fact was told to him by PW-14 Santosh, whom informed so by the police. This witness does not conclude in favour of prosecution, nor against the accused-appellant conclusively so as to connect accused-appellant with the crime.
As regards injuries of the accused appellant and blood stains on his shirt and pant at the time he was arrested, we may refer to his arrest memo Ex.P-7. Column-7 pertains to the description of injuries, if any, on the person of the arrested person with the reasons therefor have to be indicated and also if any medical examination has been made to be indicated. In this column, six injuries were indicated on the person of the accused-appellant. Injury no.1 was cluster of 2-3 abrasions on left side of his neck, injury no.2 was also an abrasion close to his nose on right side. Injury no.3 was again an abrasion on front of his right leg. Injury no.4 was also an abrasion below his lips and fifth and last injury was also an abrasion close to his thumb on his right hand. The police has made a note in his arrest memo that accused informed that he received those injuries during struggle at the time of incident. The accused-appellant has not been subjected to medical examination and no such statement has been made by the Investigating Officer/SHO, PW-40 Balram in his cross examination, nor any such injury report has been placed on record and reason why this was not done is not far to seek. PW-4 Jhabbar Singh, who was a member of the police team and arrested the accused-appellant, in his statement has stated he along with SHO arrested the accused from Triveni dham mod. Arrest memo was not prepared at the place where he was arrested as interrogation had to be made from him at the Police Station. It took 15-20 minutes time to reach to the Police Station from Triveni dham mod. He was interrogated by SHO for about half an hour. Finger prints of the accused were not obtained. His brother came to Police Station on his own. Clothes of the accused were seized and he was given another set of clothes to wear but he was not aware as to where from these clothes were brought. He was not aware whether medical examination of the accused took place. The SHO after about half an hour of his arrest got his clothes removed and that time his brother Kailash was present. PW-13 Netram has stated that he was not aware wherefrom police arrested the accused as he was not member of the said police team but his formal arrest was shown only in the Police Station where the arrest memo was prepared. SHO brought the accused to the Police Station. Village of the accused was about 15-20 kms. from the Police Station Ajitgarh. Clothes of the accused were got removed and he was kept in underwear and vest only. It took more than an hour to prepare the site plan Ex.P-13. PW-40, SHO Balram Singh, the Investigating Officer has stated that pant and shirt which the accused-appellant was wearing had blood stains, which were seized. Although, the FSL report Ex.P-48 did not determine the blood group of the stains, but the police has not done investigation to determine the blood group of the accused-appellant so as to rule out possibility that it was not the own blood of the accused-appellant at his shirt Ex.P5 from packet mark as E. This was necessary because as per the arguments of the learned counsel for the appellant, the accused may have been subjected to third degree treatment by the police when he was in custody before formal arrest. The arrest memo was prepared thereafter, therefore, the nature of injuries that he received may have been caused thereby and in that process, few drops of his blood may have also come on his shirt and pant.
The Supreme Court in Mahendra Singh Dahiya, supra while dealing with a case where the prosecution was not able to prove by reliable evidence whether the blood group 'O' that was of deceased Namita whether it is Rh+ or Rh- was insufficient proof unless a further investigation was made. In the present case too, apart from above, the FSL report does not categorically indicate the Rh group of the blood. Moreover, it was very necessary for the prosecution to ascertain own blood group of the accused to rule out the possibility that shirt and pant were not containing blood stains of the accused himself because there was gap of two days between the accident and the time when he was arrested. The Supreme Court in umpteen number of cases has held that where accused is found to be injured and the case solely rests on circumstantial evidence, not ascertaining own blood group of the accused would be fatal to the prosecution case because the possibility of such blood being that of the own group of the accused is not ruled out. Reference in this connection be made to the judgements of the Supreme Court in V.Vijay Kumar vs. State of Kerala-2000 (1) SCC 628, Subhash Chand vs. State of Rajasthan-2002 (1) SCC 702 and State of Rajasthan vs. Raja Ram-2003(8) SCC 180.
In Khalil Khan, supra, the Supreme Court was dealing with a case where bloodstained personal clothes of accused were recovered four days after the murder. It was held that it was extremely difficult to believe that a person involved in such a serious crime would still be wearing bloodstained clothes even four days after the murder. In this background, the evidence of the hostile witness that the recoveries were made at the Police Station assumes importance.
In the present case too, the incident took place in the evening of 27th and 28th and the accused-appellant was arrested on 30th July, 2002, it does not appear reasonable why in normal human behaviour, he would be wearing the blood stained clothes for more than two days or three days.
There is one more angle that needs to be noticed which is that the informant PW-3 Shatrughan Sharma in his written complaint stated that at the place of incident, he noticed the sign of struggle on the ground and according to his first version disclosed in the written report, there were footprints of 2-3 persons. The footprints were in the shape of marks of slippers and the shoes. When PW-40 SHO Balram was put a pointed query on this aspect as to why he did not left the foot marks from the place of incident, all that he has stated was that he could not do so because many people were present there. The photographs of the place of incident which are on record belies this statement of the Investigating Officer, which have been proved by the photographer PW-21 Hanuman Sahai, who has stated that the relevant photo Ex.P24 contains the foot marks of certain persons. This was a serious lacuna in the investigation made by SHO PW-40 Balram.
From the analysis of the evidence that has made above, it would be thus evident that there were several missing links in the chain of circumstances and therefore chain of circumstances cannot be accepted complete so as to rule out every other hypothesis that may be compatible to the innocence of the accused. It would be highly unsafe to convict the accused appellant on the kind of evidence collected in this case. Evidence is such which point towards the guilt of accused appellant alone and none else. We are therefore not persuaded to uphold conviction of the accused-appellant on the basis of such evidence. Appeal filed by the accused-appellant deserves to be succeed and is accordingly allowed. Conviction of the accused-appellant under Section 302 and 392 of IPC is set aside and consequently sentence awarded to him is also set aside. The accused-appellant be released forthwith if not required in any other case.
However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Suresh Kumar is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave to Petition against this judgement or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.
Before parting with the judgement, we would like to observe that like in this case, we have come across serious lacunaes in the investigation of several cases which we have dealt with. This leads to wastage of enormous energy, resources and time of not only those responsible for investigation but of courts as well. Such grave mistakes may be unintentional and bonafide, but at the same time, allegations of deliberate lapses are also made. Frequent change of investigating officers and some time, the investigating agency itself, contributes a lot to this phenomenon. Howsoever heinous an offence might be, a Court of law has to decide the cases brought before it by the required standard of proof, according to which the prosecution has to prove guilt of the accused beyond reasonable doubt. Ultimate casualty in all such cases is the cause of justice because owing to serious lacunaes of this and similar nature, prosecution fails and result is the consequential acquittal of accused. We therefore feel that the police should take lessons from its past mistakes so that they do not recur in future. In order, therefore, to ensure effective administration of justice, we deem it appropriate to issue the following directions:-
i) that the Director General of Police, State of Rajasthan shall instruct all the police stations/officers of the State to ascertain blood group with Rh factor of the accused, if he is found to be having any injuries on his body or wearing any blood stained clothes;
ii) that a special cell be set up at every range headquarters of the police, which should work under the Inspector General of Police concerned, to scrutinise all such sessions cases on regular basis in which prosecution has resulted in failure and shall identify the causes therefor, and if lacunaes of grave nature, constituting gross negligence and lack of due diligence are found, appropriate disciplinary action shall be taken against the erring Investigating Officer;
iii) that the lacunaes or defects or infirmities so identified shall be compiled with reference to facts of those cases, which material shall be passed on to the Rajasthan Police Academy to form study material for periodical training of all the police officers who have to investigate criminal cases;
iv) that it should be made mandatory for every police officer, who may be entrusted investigation of any criminal matter, to undergo a refresher training course for at least a week in an year or for any such longer duration, as may be determined by Director General of Police;
v) that the Director General of Police, in charge of the Rajasthan Police Academy may for the purpose of aforestated training, avail of the services of renowned lawyers practicing on criminal side, sitting or retried judicial officers, present or past Public Prosecutors and serving or retired senior police officers.
A copy of this judgement be sent to Principal Secretary, Home Department, Government of Rajasthan, Director General of Police and Rajasthan Police Academy for compliance.
(S.S. KOTHARI),J. (MOHAMMAD RAFIQ), J. RS/