Rajasthan High Court - Jaipur
Kamlesh vs State Of Rajasthan on 12 January, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1176 / 2009
Kamlesh son of Surajmal, by caste Meena, resident of Khedli
Kalan, Police Station Mantown, Sawaimadhopur. At present in
Central Jail, Bharatpur.
----Accused-Appellant
Versus
State Of Rajasthan through PP
----Respondent
Connected With D.B. Criminal Appeal No. 693 / 2009 Gopal son of Ghanshyam, by caste Sunar R/0 Mishra Mohalla, Shahar, Sawaimadhopur.
----Accused-Appellant Versus State of Rajasthan through the PP
----Respondent _____________________________________________________ For Appellant(s) : Mr. Biri Singh Sinsinwar, Senior Advocate assisted by Mr. Rajesh Choudhary For Respondent(s) : Mr. NS Dhakad, PP _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 12/01/2017 (As per Prakash Gupta, J.) Since both the aforementioned appeal arise out of a common (2 of 12) [ CRLA-1176/2009] judgment, the same have been heard together and are being decided by this common judgment.
Having been convicted for offence under Sections 302, 404 and 411 IPC by the learned Additional Sessions Judge, Sawaimadhopur by the judgment dated 12th June, 2009 in Sessions Case No.75/2008(32/2008 the appellants Kamlesh and Gopal have approached this Court.
By the said judgment, the learned Judge had convicted and sentenced the appellants Kamlesh and Gopal as under:-
Kamlesh:
Under Section 302 IPC:- to undergo life imprisonment and to pay a fine of Rs.2000/-, and in default thereof to further undergo one month's simple imprisonment.
Under Section 404 IPC: to undergo three years' rigorous imprisonment and to pay a fine of Rs.2,000/- and in default thereof to further undergo one month's simple imprisonment. Gopal Under Section 411 IPC: to undergo one year's rigorous imprisonment and to pay a fine of Rs.2,000/- and in default thereof to further undergo one month's simple imprisonment.
All the substantive sentences have been ordered to run concurrently.
Briefly, the facts of the case are that on 24 th February,2008, complainant Asharam (PW.1) submitted the written report Ex.P.1 (3 of 12) [ CRLA-1176/2009] before the Police Station Mantowan, Sawaimadhopur. The said written report when translated into English reads as under:-
To, The Station House Officer, Mantown, Sawaimadhopur.
Subject: Regarding the murder of Smt. Kanchan Devi W/o Asha Ram.
Sir, It is submitted that today on 24.2.08 murder of Smt. Kanchan Devi W/o Asharam Meena daughter of Jai Narayan Meena, resident of Khedli Kalan was committed by Kamlesh S/o Surajmal Meena. Murder was committed for her ornaments. Both the hands of Smt. Kanchan Devi are chopped of and both the legs are also chopped of. Her both Kadies and anklets are taken out. With a view to take the same, murder is committed. Report is being submitted for legal action.
Applicant Sd/-Asharam Asharam Meena S/o Gopal Meena resident of Badlav Dated 24-2-08 On the basis of this written report (Ex.P.1) a formal FIR (Ex.P.23), namely, FIR No.75/2008 was chalked out for offence under Sections 302 IPC.
The dead body was sent for post mortem and as per the post mortem report (Ex.P.16), there were five incised wound on the body and as per the opinion of the Medical Jurist Dr. Makhan Lal Kanwat (PW.9) all the injuries were ante mortem in nature. The cause of death was haemorrhagic shock and injury No.1 which was on the neck.
(4 of 12) [ CRLA-1176/2009] After completion of the investigation, the case was committed to the learned trial court. Appellant Kamlesh was charged for offence under Section 302, 379 IPC and in alternate for offence under Section 404 IPC whereas appellant Gopal was charged for offence under Section 411 IPC. They denied the charges, and claimed trial.
To prove its case, the prosecution examined 18 witnesses and got exhibited as many as 25 documents.
In their statement under Section 313 Cr.P.C. the appellants took a stand that witnesses have deposed falsely and appellants are victim of false implication. However, no evidence was produced in defence.
After recording evidence of the prosecution and hearing learned counsel for the appellants and the learned Public Prosecutor the learned trial court has convicted and sentenced both the appellants in the manner as stated hereinabove vide judgment and order dated 12th June, 2009 which is impugned in the appeals filed by the appellants.
In the present case, there is no direct evidence is available against the appellants and the case of the prosecution solely rests on the circumstantial evidence. A bare perusal of the impugned judgment would reveal that the learned trial court has convicted the appellant Kamlesh on the basis of following four circumstances; namely:
(1) The appellant Kamlesh was residing in the same house where the deceased Kanchan Devi was residing. The place where (5 of 12) [ CRLA-1176/2009] murder was committed, except the deceased and the appellant none else was residing.
(2) Recovery of blood stained Basula ( a heavy and sharp edged tool used by the carpenter) on the information furnished by the appellant;
(3) Recovery of Kadia (silver anklets) of the deceased from Vishal Jain, which the deceased was wearing in her feet on the basis of the information furnished by the appellant under Section 27 of the Evidence Act from Vishal Jain with whom the appellant pledged the same for a sum of Rs.8,000/- ; and (4) Recovery of silver kadiya of the deceased from accused Gopal, on the basis of the information furnished by the appellant Kamlesh under Section 27 of the Evidence Act.
Appellant Gopal has been convicted for offence under Section 411 IPC on the ground that he purchased the silver Kadia from appellant Kamlesh for meager amount knowing fully well that the cost of the silver was more than that.
To prove circumstance No.1, the prosecution has placed reliance on the testimony of Asharam PW.1 who is the husband of deceased Kanchan Devi. He stated that after murder of Kanchan Devi, the villagers informed him on phone that Kamlesh had committed murder of his wife. He along with 5-7 persons went to village Khedli and police was present there. Both the hands and legs of Kamlesh were amputated and were lying separately. Her neck was also cut. He submitted the report at the place of occurrence. He can identify the anklets and Kadia of Kanchan.
(6 of 12) [ CRLA-1176/2009] During recording of the evidence of this witness he identified the silver anklets and Kadia put to her for identification. In cross- examination he has denied the fact that the accused has been falsely implicated. He further deposed that in the Guwadi where the murder took place, except the accused and the deceased no other person was living. When he went to the temple all the persons present there were taking the name of Kamlesh. He has further deposed that there was no definite mark or sign on the ornaments and such type of ornaments are easily available with the goldsmith.
From the evidence of this witness it is clear that he was not living with the deceased in village Khedli, where the deceased was found dead and was living in another village and that has taken the name of accused appellant Kamlesh as culprit on the basis of hearsay.
Kishan Lal Meena PW.7 at the relevant time was posted as ASI at the police station Mantown. He stated that accused Kamlesh was arrested vide arrest memo Ex.P.5 in his presence. Two silver anklets were recovered from the shop of Vishal Jain, Indragarh vide Ex.P.7, site plan of which is Ex.P.6. Both the documents bear his signatures. At the instance of accused Kamlesh, one Vasula (heavy sharp edged weapon used by the Carpenter) was recovered from the house of uncle of Kamlesh and recovery memo Ex.P.12 and site plan Ex.P.13 were prepared which bear his signatures. On the information of accused Gopal, silver kadia were recovered from the wooden almirah of Gopal and (7 of 12) [ CRLA-1176/2009] recovery memo Ex.P.14 and site plan Ex.P.15 were drawn in his presence which bear his signatures. In cross-examination this witness has deposed that regarding recovery of silver kadia, no information was given by the accused to him and he was present as a motbir witness of the recovery. Recovery from the house of uncle of accused was made by the In-charge of the police station. Other villagers were present there but they refused to sign the memos. It was duty of the Investigating Officer to put note to the effect that no independent person is ready and willing to become witness of the recovery. In the market also the persons present refused to sign the recovery memos. No fodder was found present on the Vasula but the same was recovered from the fodder.
Virendra Singh, PW.8 at the relevant time was posted as ASI, Police Station Mantown. He has stated that in his presence accused Kamlesh got recovered two old silver anklets weighing 1.030 Kg. from Vishal Jain, resident of Indragarh and recovery memo and site plan were prepared which are Ex.P.7 and Ex.P.6 which bear his signatures. On 7 th March, 2008, accused Kamlesh got recovered one blood stained Vasula from the house of his uncle resident of village Khedli and recovery memo Ex.P.12 and site plan Ex.P.13 were prepared which bear his signatures.
In his cross examination the witness has deposed that while leaving the police station for recovery, he informed the Circle Officer in this regard and he along with the CI proceeded to the place. Accused orally gave information to the CI which was recorded by the CI and he has not recorded the same. The Basula (8 of 12) [ CRLA-1176/2009] was stained with blood which was 2-5 days old. He has denied the suggestion that the Basula was seized at the police station and the seizure memo was also prepared at the police station.
Rajesh Kumar (PW.13) has proved the various stages of the investigation conducted by him in this case.
Heard the learned counsel for the parties. The first circumstance relied by the prosecution that only the deceased and the accused were residing in the Guwadi, however prosecution has not proved on record that no other person had access to the Guwadi. The evidence shows that though the accused Kamlesh alongwith the deceased was residing in the Guwadi but the prosecution has not produced any evidence to show that the deceased was last seen alive in the company of the appellant and no other person, except the appellant Kamlesh, had access to the Guwadi. So there is no substance in this theory that except the deceased and the accused no one else had access to this Guwadi. Therefore, this circumstance has not been proved by the prosecution.
Regarding recovery of Basula, the prosecution has placed on record seizure memo (Ex.P-12). To prove this document, statement of Rajesh Kumar PW-13 has been recorded. He stated that the Vasula was recovered on the basis of the information disclosed by the accused. To corroborate the statement, Kishan Lal (PW-7) and (PW-8) Virendra Singh have been examined. All the said witnesses have stated that at the time of recovery independent witnesses were also present. But the prosecution has (9 of 12) [ CRLA-1176/2009] failed to give any plausible explanation for not making them motbir witnesses of the recovery memo. All three witnesses examined by the prosecution are the police officers and they are interested in the success of the case. In addition to it, these witnesses have also stated that the Basula was stained with blood but the prosecution has not produced the report of the F.S.L. to prove that the blood found on the Basula was the blood of the deceased. Hence, there is absence of link evidence to connect the accused with the crime.
The next circumstance relied upon by the prosecution is the recovery of the silver kadia belonging to the deceased from accused Gopal upon the disclosure statement made by him before the police. From record it is revealed that the recovered articles are of common use and can be found in any jewellery shop or house. The husband of the deceased namely Asharam PW-1 has identified the same as belonging to the deceased but during investigation no T.I. Proceedings were held for identification of these articles. Therefore, identification of the recovered articles by the witnesses for the first time in the court is of no avail to the prosecution.
In the case of Pawan Kumar vs State of Haryana (2003) 11 SCC 241, in paragraph 9 it was held as under:-
"9.The other circumstance, relied upon, is the recovery of gold chain and ring belonging to the deceased from the accused persons upon the disclosure statements made by them before the police. It may be stated that these are articles of common use and can be found out in any house. That apart, no family member of the deceased has identified these articles or claimed that the same belonged to the deceased and/or he was wearing the same at the time of the occurrence. The only person who has identified the same is Baldev Raj (PW 11)-owner of a shop but it is not possible to place reliance upon (10 of 12) [ CRLA-1176/2009] his evidence, firstly because identification by him cannot be of any avail to the prosecution as he had no special reason to know about the identity of these articles more so when he admits in evidence that his house is at a distance of 5/6 kilometers from that of the deceased and nowhere it has been stated that he ever met the deceased and secondly, because no test identification parade was held for its identification."
The recovery of the articles allegedly belonging to the deceased at instance of the accused-appellant Kamlesh is not proved as no identification proceedings were held for identification of the articles, they were not mixed with similar or identical articles.
The prosecution, therefore, has failed to prove that the kadiya and anklets belonged to the deceased. Thus prosecution could not prove on record that appellant had mortgaged/pawned or sold the above articles belonging to the deceased to PW-3 Vishal or to the co-accused Gopal. It was incumbent upon the prosecution to prove that alleged articles belonged to deceased. Since no identification proceedings were carved by independent official be it Magistrate or gazetted officer, prosecution failed to prove conclusively that articles allegedly identified by the witnesses in court actually belonged to the deceased Kanchan Devi.
The law regarding the circumstantial evidence is well settled that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a (11 of 12) [ CRLA-1176/2009] conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of circumstances so complete and each and every piece of incriminating circumstance must be clearly established by cogent, reliable and clinching evidence and circumstances should be such which leaves no other hypothesis other than the guilt of the accused. The chain of circumstances as brought on record is not complete and the same unerringly not points the guilt of the appellant-accused in this case.
For the discussions hereinabove, both the appeals are allowed and the impugned judgment of conviction and sentence dated 12th June, 2009 passed by the learned Additional Sessions Judge, Sawai Madhopur in Sessions Case No.75/2008(32/2008) convicting appellant Kamlesh for the offence under Section 302 and 404 IPC and sentencing him to undergo life imprisonment for offence under Section 302 IPC and to undergo three years' rigorous imprisonment for offence under Section 411 IPC and to pay fine of Rs. 2,000/- and Rs.2,000/- respectively and the sentence imposed for default clause are set aside. He is undergoing sentence in jail and is directed to be released forthwith if not required in any other case.
Conviction of appellant Gopal for offence under Section 411 IPC and the sentence of one year's simple imprisonment and fine of Rs.2,000/- and sentence imposed for default clause are also set aside. He is on bail and need not to surrender.
Keeping in view, however, the provisions of Section 437A of (12 of 12) [ CRLA-1176/2009] the Code of Criminal Procedure, 1973, each of the accused- appellants Kamlesh and Gopal are directed to forthwith furnish 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 to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court. (PRAKASH GUPTA)J. (KANWALJIT SINGH AHLUWALIA)J. bairwa