Rajasthan High Court - Jodhpur
Bhajan Lal vs State on 18 January, 2023
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 108/2018
Bhajan Lal S/o Shri Bhani Ram, by caste Mali, R/o Bhaleri,
Tehsil Tara Nagar, Police Station Bhaleri, District Churu
(Presently lodged in Central Jail, Bikaner)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
Mr. Rakesh Gehlot
For Respondent(s) : Mr. R.R. Chhaparwal, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Judgment pronounced on ::: 18/01/2023
Judgment reserved on ::: 07/12/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
The appellant herein has been convicted and sentenced as below vide judgment dated 03.04.2018 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Churu in Special Sessions Case No.43/2013:-
Offence Sentences Fine Sentence in lieu of
under default of payment
Section of fine
302 IPC Life Imprisonment Rs.2,000/- --
328 IPC 3 Years' S.I. Rs.10,000/- 3 Months' Additional
S.I.
(Downloaded on 18/01/2023 at 11:48:53 PM)
(2 of 15) [CRLAD-108/2018]
3(2)(v) of Life imprisonment Rs.2,000/- --
SC/ST Act
All the sentences were ordered to run concurrently.
He has preferred the instant appeal under Section 374 (2) Cr.P.C. for assailing his conviction and the sentences awarded to him by the trial court by the impugned judgment.
Briefly stated the facts relevant and essential for disposal of the instant appeal are noted hereinbelow:-
Shri Prabhu Ram (PW.4) lodged a written report (Ex.P/11) to the Superintendent of Police, Churu on 08.06.2013 alleging inter alia that his daughter Mst. 'N' (hereinafter referred to the as 'the victim') was being stalked and molested by Guttu, Bhajana Ram sons of Bhani Ram, Shankar Lal S/o Shri Kushala Ram and 3-4 other boys. The informant implored Bhani Ram but he did not desist and insinuated that if any complaint was made, the girl would be carried off. On the very same morning, his daughter, the victim had gone to the nearby field for attending to the call of nature and for making cow-dung cakes. While she was there, Guttu, Bhajan Lal, Shankar Lal and 3-4 other boys subjected the victim to gang rape. The girl cried out in anguish. The informant and his son Kamal ran towards the source of the fervent cries and saw the accused persons inflicting sharp weapon injuries to the victim and thereafter, they poured some poisonous substance into her mouth and fled away from spot. The informant alleged in the (Downloaded on 18/01/2023 at 11:48:53 PM) (3 of 15) [CRLAD-108/2018] FIR that he and his son Kamal saw the accused committing the crime and running away from the place of incident from close quarters. His daughter fell down while bleeding profusely. On hearing hue and cry, the family members collected, the police was informed who picked up the girl and got her admitted to Bhartiya Hospital, Churu but she did not survive and passed away.
On the basis of this report, FIR No.44/2013 for the offences punishable under Sections 376 (>), 302, 328/34 IPC and Sections 3(1)(xii) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act was registered at the Police Station Bhaleri, District Churu and investigation commenced. The accused appellant Bhajan Lal was arrested. It is alleged that in furtherance of the disclosure statement made by accused appellant to the IO under Section 27 of the Evidence Act, recoveries of the knife used for inflicting injuries to the victim and the bottle of insecticide from which she was administered poison were effected. During investigation, the IO did not find other persons named in the FIR to be involved in the crime and accordingly, charge-sheet came to be filed only against the accused appellant for the offences punishable under Sections 302, 328 IPC and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. The trial court framed charges against the accused appellant for these offences. He pleaded not guilty and claimed trial. Eleven witnesses were examined whereafter, the prosecution moved an application under Section 311 Cr.P.C. which was accepted and Shankar Lal and Guttu were also summoned as additional accused to face trial in the case.(Downloaded on 18/01/2023 at 11:48:53 PM)
(4 of 15) [CRLAD-108/2018] Charges were framed against these accused also. They too pleaded not guilty and claimed trial. One more witness was examined and the prosecution evidence was closed. In addition to the examination of 12 witnesses, the prosecution also exhibited 45 documents in support its case. The accused, upon being questioned under Section 313 Cr.P.C., claimed to be innocent and stated to have been falsely implicated. Six witnesses were examined in defence and seven documents were exhibited. After hearing the arguments advanced by the Public Prosecutor and the counsel representing the accused, the learned trial court, proceeded to acquit the accused Guttu and Shankar Lal of the charges.
Categoric finding was recorded by the trial court at para No.32 of the impugned judgment that the prosecution made wholesale improvements in its story and tried to project Prabhu Ram and Daulat Ram as eyewitnesses of the incident even though they were not present in the village at the time of incident. The evidence of PW.1 Kamlesh was discarded and it was held that he too did not see the incident and was trying to become an eyewitness of the incident posteriorly. The evidence of PW.2 Smt. Manju, mother of the victim wherein she tried to become an eyewitness of the incident was also discarded holding that she did not see the incident and at best could have seen the accused running away from the place of incident. The statement of Sunita (PW.5) who claimed that she and her mother Smt. Manju lastly saw the three accused persons running away from the field of Abdul Habab where the incident took place was believed to this (Downloaded on 18/01/2023 at 11:48:53 PM) (5 of 15) [CRLAD-108/2018] extent. Qua the accused Guttu and Shankar Lal, the trial court observed that the prosecution case against them was only acceptable to the extent of they having been seen running away from the place of incident but merely on such evidence, they could not be convicted. Accordingly, these two accused persons were acquitted by giving them the benefit of doubt. Findings recorded by the trial court on these important aspects of the case at para Nos.32 to 39 of the impugned judgment are reproduced hereinbelow for the sake of ready-reference:-
"32& bl izdkj bl ekeys esa tks lk{; dk foospu fd;k x;k gS] mlls xokgku }kjk vius iqfyl c;kuksa ls lq/kkj dj izHkqjke o nkSyrjke dks ?kVuk dk p'enhn lk{kh cukus dk iz;kl fd;k x;k gSA tcfd okLro esa ?kVuk ds le; nkSyrjke o izHkqjke ?kVukLFky ij ugha FksA ,slh lwjr esa bu xokgku dks p'enhn lk{kh gksuk ugha ekuk tk ldrk vkSj bu xokgku dh rFkkdfFkr lk{; ds vk/kkj ij vfHk;qDrx.k dks vijk/k esa lafyIr ugha fd;k tk ldrkA 33& vc bl ekeys esa xokg deys'k ds p'enhn lk{kh gksus dk tgkWa rd iz'u gSA ml ij fopkj fd;k tk jgk gSA ih-MCY;w- 1 ds :i esa xokg deys'k us U;k;ky; esa ?kVukLFky ij igWqpdj Hktuyky }kjk Nqjh ekjrs ns[kuk] xqV~Vq }kjk ck;ka o 'kadjyky }kjk nk;ka gkFk idM+uk vkSj 'kadjyky }kjk ,d gkFk ls Lizs fujek dks fiyk jgs gksuk ns[kuk crk;k x;k gSA tcfd bl xokg }kjk izn'kZ Mh 1 iqfyl c;ku esa fgLlk , ls ch esa ;g crk;k fd og lqcg 8%00&8%30 cts ikbZi ykus ds fy, cl LVs.M x;k gqvk FkkA okfil ?kj vk;k rks bZLekbZy dkth dh yM+dh us vkdj dgk fd rsjh cM+h cfgu dks pkdw ekj fn;k rc og vCnqy gckc ds [ksr esa Hkkxdj x;kA bZ ls ,Q fgLlk esa ;g dgk fd lk{kh us fdlh dks viuh cfgu dks ekjihV djrs ugha ns[kkA 34& bl izdkj xokg ih-MCY;w- 1 deys'k Lo;a ds /kkjk 161 n.M izfdz;k lafgrk ds dFkuksa esa lq/kkj dj Lo;a dks ?kVuk dk p'enhn lk{kh gksuk crkrk gS] tks mfpr ugha gSA ;g xokg ?kVuk ?kfVr gksus ds i'pkr~ gh ekSds ij igWqpuk izrhr gksrk gS] tks iqfyl okyksa ds vkus ds i'pkr~ muds lkFk e`rdk dks vLirky ysdj x;k FkkA bl ekeys esa tks izn'kZ Mh 7 jiV jkspukepk gS] ;fn xokg dks ?kVuk dkfjr djus okyksa dh tkudkjh gksrh rks og Hkh iqfyl dks crk ldrk Fkk vkSj izn'kZ Mh 7 esa mldk mYys[k gks ldrk FkkA ijUrq izn'kZ Mh 7 jkspukepk jiV esa ;g Li"V :i ls vk;k gS fd Jheku~ lh-vks- lkgc] ljnkj'kgj us tfj, VsyhQksu funsZ'k Qjek;k fd izdj.k esa Hktuyky (Downloaded on 18/01/2023 at 11:48:53 PM) (6 of 15) [CRLAD-108/2018] dk uke lkeus vk;k gSA ;kfu lh-vks-] ljnkj'kgj }kjk VsyhQksu ij crkus ij Hktuyky dk uke lkeus vk;kA ;fn xokg }kjk ?kVuk ns[kh tkrh rks og mlh le; iqfyl okyksa dks crk ldrk Fkk vkSj mldk gokyk bl jkspukepk jiV esa vk ldrk FkkA ,sls gkykr esa Hkh ;g xokg ?kVuk dk p'enhn lk{kh u gksdj p'enhn lk{kh cuus dk iz;kl djuk izrhr gksrk gSA 35& ,slh voLFkk esa ;qfDr;qDr lansg ls ijs ;g Li"V ugha gksrk fd xokg deys'k p'enhn lk{kh gSA ,slh voLFkk esa bl xokg dks ?kVuk dk p'enhn lk{kh gksuk ekudj mldh lk{; ds vk/kkj ij vfHk;qDrx.k dks nks"kh ugha Bgjk;k tk ldrkA 36& tgkW rd ih-MCY;w- 2 eatw dk iz'u gSA bl xokg us viuh eq[; ijh{kk esa ;g dgk gS fd deys'k] Hkokuh'kadj] fujek ds ikik izHkqjke o nkSyrjke ekSds ij x;s rFkk lkf{k;k us rhu tuksa dks Hkkxrs gq, ns[kk Fkk] ftjg esa ;g Lohdkj fd;k fd ?kVuk ugha ns[kh] ekjihV gksrs ugha ns[kh] dsoy eqyfteku dks Hkkxrs gq, ns[kkA bl xokg }kjk vius iqfyl c;ku izn'kZ Mh 2 ds dFkuksa esa lq/kkj djrs gq, fojks/kkHkklh lk{; U;k;ky; esa nh gS vkSj iqfyl c;ku izn'kZ Mh 2 ds fgLls fy[kk;s tkus tkus ls bUdkj fd;k gS] tcfd vuqla/kku vf/kdkjh ih- MCY;w- 12 egsUnz dqekj }kjk tSlk xokg us c;ku fn;k oSlk fy[kk tkuk crk;k gSA dsoy ek= bl xokg }kjk eqyfteku dks Hkkxrs gq, ns[kuk iqfyl c;ku esa crk;k gSA izHkqjke o nkSyrjke dk ?kVukLFky ij tkuk ugha crk;kA ,slh voLFkk esa bl xokg dh lk{; dsoy ek= Hktuyky] xqV~Vq o 'kadjyky dks ?kVukLFky ls Hkkxrs gq, ns[kus dh gnrd gh lqlaxr gSA 37& tgkWa rd xokg ih-MCY;w- 5 lqfurk dk iz'u gSA bl xokg us viuh cfgu fujek ds lkFk xkscj Fkkius o 'kkSp ds fy, bZfy;kl O;kikjh ds [krs esa tkuk] ogkWa ij Hktuyky] xqV~Vq o 'kadjyky dk vkuk vkSj buds }kjk fujek dks vCnqy gckc ds [ksr esa ys tkuk crk;k gS vkSj Hkkxrs gq, ?kj ij vkdj viuh ekWa dks crkuk dgk gSA tc okfil og rFkk mldh ekWa vCnqy gckc ds [ksr esa xbZ rks Hktuyky] xqV~Vq o 'kadjyky dks Hkkxrs gq, ns[kuk vkSj Hktuyky ds gkFk esa Nqjh o 'kadjyky ds gkFk esa Lisz dh ckSry ns[kuk crk;k gSA ftjg esa ;g Li"V gqvk gS fd bl xokg }kjk Hkh izn'kZ Mh 5 vius iqfyl c;ku esa lq/kkj dj c;ku fn, gaSA bl xokg us vius iqfyl c;ku esa pkj O;fDr;ksa dk vkuk crk;k gS] tcfd U;k;ky; esa rhu O;fDr;ksa dk vkuk crk;k gSA ,slh voLFkk esa bl xokg dh lk{; ek= bl gn rd lqlaxr gS fd bZfy;kl O;kikjh ds [ksr esa ls eqyfteku mldh cfgu dks mBkdj ys x, o ckn esa ?kVukLFky ij nqckjk viuh ekWa ds lkFk tkus ij rhuksa eqyfteku dks Hkkxrs gq, bl xokg }kjk ns[kuk crk;k gSA (Downloaded on 18/01/2023 at 11:48:53 PM) (7 of 15) [CRLAD-108/2018] 38& tgkWa rd xokg ih-MCY;w- 6 Hkokuh'kadj dk iz'u gSA bl xokg us Lo;a dk rFkk Lo;a ds pkpk izHkqjke dk fujek ds fpYykus dh vkokt lqudj ekSds ij Hkkxdj tkuk vkSj ?kVuk ?kfVr gksrs ns[kuk crk;k gSA ftjg esa bl xokg us iqfyl c;ku izn'kZ Mh 6 dk fgLlk , ls ch] lh ls Mh o bZ ls ,Q dks xyr gksuk crk;k gSA bl xokg us Hkh izn'kZ Mh 6 iqfyl c;ku esa lq/kkj dj o iqfyl c;ku ls fojks/kkHkklh dFku U;k;ky; esa fd, gSaA ;g xokg izHkqjke dk lxk Hkfrtk gS] tks fj'rsnkj gSA bl xokg us izn'kZ Mh 6 esa lh ls Mh Hkkx esa ;g dgk fd NksVh cfgu Hkkxrh gqbZ okfil vkbZ vkSj dgk fd fujek ds pkdw ekj fn;kA tc og Hkkxdj okfil x;k rks 15&20 vkneh o iqfyl [kM+h FkhA iqfyl c;ku esa ?kVuk ?kfVr gksrs gq, vkSj eqyfteku }kjk dksbZ pksVsa fujek dks igWaqpkrs gq, ;k Lisz fiykrs gq, ns[kuk ugha crk;k gSA ,slh lwjr esa ;g xokg Hkh vius iqfyl c;kuksa esa lq/kkj dj Lo;a dks ?kVuk dk p'enhn lk{kh gksuk crkus dk iz;kl dj jgk gS] ftls ? kVuk dk p'enhn lk{kh gksuk ugha ekuk tk ldrkA bl izdkj dsoy ek= ?kVuk ?kfVr gksus ds i'pkr~ ?kVukLFky ij igWaqpuk gh vf/kd ls vf/kd bl xokg dh lk{; ls ekuk tk ldrk gSA 39& iwoZ esa fd, x, lk{; foospu ls eqyfteku }kjk e`rdk fujek ds pkdw dh pksV igWaqpkuk] Lizs fiykrs gq, ns[kus ckcr ;qfDr;qDr lansg ls ijs lk{; i=koyh ij ugha gSA dsoy ek= xokg ih-MCY;w- 5 lqfurk dh ;g lk{; gS fd tc og viuh cfgu ds lkFk bZfy;kl O;kikjh ds [ksr esa xkscj Fkkius o 'kkSp ds fy, xbZ Fkh rks rhuksa eqyfteku vk, vkSj mldh cfgu dks mBkdj vCnqy gckc ds [ksr esa ys x;sA xokg ih-MCY;w- 2 eatw o ih-MCY;w- 5 lqfurk dh lk{; ls ;g Li"V gS fd tc nksuksa ekWa&csVh vCnqy gckc ds [ksr dh rjQ x, rks bu nksuksa us rhuksa eqyfteku dks Hkkxrs gq, ns[kkA blls vf/kd lk{; ?kVuk ds lEca/k esa i=koyh ij ;qfDr;qDr lansg ls ijs ugha ugha vk;h gSA "
Qua the accused appellant, the learned trial court particularly relied upon the evidence of the witnesses being the family members of the accused. Their evidence was then found corroborated by the alleged recoveries of the knife used to commit the murder and so also the bottle of insecticide which was administered to the victim. Arriving at these findings, the accused was held guilty, convicted and sentenced as above by the impugned judgment dated 03.04.2018, which is assailed in this appeal.
(Downloaded on 18/01/2023 at 11:48:53 PM)
(8 of 15) [CRLAD-108/2018] Learned counsel Shri Bora representing the appellant, vehemently and fervently urged that the findings recorded by the trial court for convicting the appellant as above are perverse and unsustainable on the face of the record. He urged that as the trial court has discarded the evidence of the witnesses related to the victim on material aspects holding that their testimony is tainted and full of deliberate improvements, there was no justification whatsoever for the trial court to have convicted the accused on the flimsy evidence of recoveries. He contended that even finding recorded by the trial court that the evidence of Smt. Manju (PW.2) and Sunita (PW.5) was reliable and acceptable on the aspect that they saw the accused running away from the crime scene is unsustainable on the face of the record because the trial court has, not relied upon the same set of evidence qua the two co- accused persons who have been acquitted. Shri Bora further urged that the recoveries made by the IO at the instance of the accused appellant are also fabricated. Proper link evidence was not led by the prosecution so as to establish the safe custody and sanctity of the recovered articles. His further submission was that no conclusive inference of guilt can be drawn merely on the basis of recovery of the knife even if it was carrying blood stains of the same blood group as that of the victim. He further submitted that the trial court totally ignored the evidence of the defence witnesses, hence also, the impugned judgment is unsustainable in the eyes of law. It was his submission that a bare perusal of the evidence of defence witnesses would be sufficient to satisfy the Court that it is a case of false implication of the accused plain and simple. On these grounds, learned counsel Shri Bora implored the (Downloaded on 18/01/2023 at 11:48:53 PM) (9 of 15) [CRLAD-108/2018] Court to accept the appeal, set aside the impugned judgment and acquit the accused appellant of the charges.
Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the informant and the other material prosecution witnesses hail from a rural background. The defence has not alleged that the witnesses had any motive to falsely implicate the accused in the case. Learned Public Prosecutor further submitted that even though the State has not preferred any appeal against acquittal, this Court, while exercising power under Section 386 Cr.P.C. can reverse the findings recorded by the trial court whereby the evidence of the material witnesses was discarded. He further submitted that the evidence of the eyewitnesses coupled with the factum of highly incriminating recoveries i.e., the blood stained knife and the bottle of insecticide made at the instance of the accused are sufficient to affirm his guilt. On these submissions, he implored the Court to dismiss the appeal.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and the record.
At the outset, we may note and observe that there has been a blatant attempt by the prosecution in fabricating a story for implicating the accused because the close relatives of the deceased namely the first informant Prabhu Ram and his son (Downloaded on 18/01/2023 at 11:48:53 PM) (10 of 15) [CRLAD-108/2018] Kamalesh, who were admittedly not even present in the village at the time of incident, posed as eyewitnesses of the incident in their sworn testimony. This fallacious attempt of prosecution witnesses however, did not sustain and the trial court rightly, discarded the testimony of PW.4 Prabhu Ram and PW.1 Kamalesh who tried to become eyewitnesses of the incident. We may note here that this blatant falsehood in the evidence of Prabhu Ram (PW.4) and Kamlesh (PW.1) was exposed in the testimony of Smt. Manju (PW.2), mother of the victim who stated that her daughter Sunita (PW.5) came crying and stated that her sister Mst. 'N' the victim had been lifted and carried away by Bhajan Lal, Guttu and Shankar Lal. On hearing this, Kamlesh and the victim's father Prabhu Ram, Bhawani Shankar and Daulat Ram proceeded to the place of incident. It is thus manifest that Prabhu Ram (PW.4) and Kamlesh (PW.1) were not present at the spot and improved upon their story and falsely tried to pose as eyewitnesses of the incident. This attempt was made right at the inception i.e. while filing the FIR (Ex.P/22). As the prosecution witnesses tried to cook up a story even while filing the FIR, and since, all material prosecution witnesses are close relatives of the victim, their testimony cannot be trusted out right.
A very significant fact which comes out from the FIR (Ex.P/22) is that in this report filed by the father of the victim, there is no allegation that the witness Sushri Sunita (PW.5) was accompanying the victim when she went to the field for attending to the call of nature or that Sunita and Smt. Manju were amongst the persons who saw the accused running away from the crime (Downloaded on 18/01/2023 at 11:48:53 PM) (11 of 15) [CRLAD-108/2018] scene after committing the offence. Hence, the claim of Manju (PW.2) and Sunita (PW.5) that they saw the accused running away from the field of Abdul Habab would also be required to be viewed with suspicion.
The witness Smt. Manju (PW.2), in cross-examination was confronted with her previous police statement (Ex.D/2) and wholesale contradictions and improvements in statement were elicited by the defence. Sunita (PW.5) stated in her evidence that she and the victim proceeded together to the field of Iliyas for making cow-dung cakes. The three accused came there and forcibly carried away her sister, the victim. If Sunita had actually witnessed this event, then she undoubtedly would have stated so to her father Shri Prabhu Ram and he would be expected to incorporate this important piece of information in the written report (Ex.P/11). However this important event which Sunita claims to have witnessed, was not incorporated in the FIR (Ex.P/22) and hence, the evidence of Sunita also comes under a cloud of doubt. While testifying on oath, Sunita (PW.5) claimed that Bhajan Lal was armed with a knife and Shankar Lal was carrying the insecticide bottle. She was confronted with her previous police statement (Ex.D/5) wherein, there is a total omission of these allegations. Hence, we have no hesitation in holding that the claim made by Sunita that she had accompanied the victim Mst. 'N' to the field of Iliyas and that she saw the three accused carrying away the girl from the place of incident is totally false and concocted. It can safely be concluded that this witness too did not see any part of the alleged incident. Her self-claimed (Downloaded on 18/01/2023 at 11:48:53 PM) (12 of 15) [CRLAD-108/2018] status as an eyewitness of the incident is totally unacceptable. Hence, the finding recorded by the trial court that none of the family members of the victim i.e., PW.2 Smt. Manju, PW.4 Prabhu Ram, PW.1 Kamlesh and PW.5 Sunita had actually seen the accused persons assaulting the deceased is perfectly justified. This fact is further fortified from the statement of Rajesh Kumar, Constable (PW.8) who was posted at the Police Station Bhaleri. The witness stated that he left the Police Station Bhaleri in a private jeep at 9:30 AM and picked up an injured girl from the place of incident and took her to the hospital. Arvind Kumar, SHO and Jaipal, ASI accompanied him. When they reached the place of incident, only 1-2 persons were standing at some distance from the girl. If at all, the family members were present at the crime scene as claimed by them in their sworn testimony, then, they would not stand by as mute spectators and would be expected to take urgent steps to provide medical aid to the victim. They would also be required to disclose the details of incident seen by them to the police authorities. Apparently thus, none of the family members was present when the police team reached the place of incident. This important fact as elicited in the evidence of Constable Rajesh Kumar completely demolishes the stand of the material prosecution witnesses, the family members of the deceased that they either saw the victim being assaulted and thereafter, the accused ran away from the crime scene.
The trial court, placed reliance on two circumstances for convicting the accused appellant, the first being that he, along with the other accused persons (since acquitted) was seen running (Downloaded on 18/01/2023 at 11:48:53 PM) (13 of 15) [CRLAD-108/2018] away from the place of incident by the witnesses Smt. Manju and Sunita. However, this version of the two witnesses is ex facie unbelievable. The trial court discarded the evidence of the prosecution witnesses for the same allegation qua the acquitted accused and at the same time, reliance was placed upon the same evidence while convicting the accused appellant. This approach of the trial court is arbitrary and totally unacceptable. The other material piece of evidence, the trial court relied upon was in form of the recovery of the knife and the bottle of insecticide. Law is well settled that merely on the basis of the sole circumstance of recovery of blood stained weapon, conviction of an accused cannot be recorded or affirmed for the charge of murder punishable under Section 302 IPC. The evidence of incriminating recoveries made at the instance of accused can be used only to corroborate substantive evidence mandatorily required to establish the guilt of the accused. However, recoveries in isolation cannot be used as a circumstance to record guilt of the accused for the charge of murder. In this regard, reference may be had to the Supreme Court Judgment in the case of Mustkeem vs State of Rajasthan, AIR 2011 SC 2769.
It may be stated here that the trial court relied upon the FSL report (Ex.C/1) so as to hold that the knife recovered at the instance of the accused and the blood stained jumper of the deceased and so also the blood stained soil collected from the spot, all gave positive test for 'A' group blood which the accused failed to explain. However, for accepting the FSL report and the evidence of recoveries as being incriminating, the prosecution (Downloaded on 18/01/2023 at 11:48:53 PM) (14 of 15) [CRLAD-108/2018] would have to lead complete and unbroken chain of link evidence to establish safekeeping of the article packets right from the date of seizure till the same were deposited at the FSL. In this reference, it would be profitable to refer to the evidence of the Malkhana Incharge of the Police Station Bhaleri Ct. Rajendra Singh (PW.9). The constable stated in his evidence that four sealed packets of this case were handed over to the Ct. Shri Ram for depositing the same at the FSL, Jodhpur. Some objections were noted by the FSL, Jodhpur and Shri Ram, FC brought back the packets and deposited the same with him on 19.07.2013. The objections were cured and the packets were resent to the FSL on 25.07.2013. It may be stated here that the nature of objections pointed out by FSL were not disclosed by the prosecution. In cross-examination, Rajendra Singh (PW.9) admitted that there is no corresponding entry of 25.07.2013 in the Malkhana register regarding re-transmission of the sample packets to the FSL. Apparently thus, the link evidence mandatorily required to prove the sanctity of the sample packets has been breached and as a consequence, the FSL report loses significance and cannot be read in evidence.
Resultantly, we are of the opinion that the prosecution failed to lead convincing and clinching evidence so as to bring home the guilt of the accused appellant. The impugned judgment dated 03.04.2018 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Churu in Special Sessions Case No.43/2013 does not stand to scrutiny. Hence, the same is quashed and set aside. The accused appellant is acquitted of the (Downloaded on 18/01/2023 at 11:48:53 PM) (15 of 15) [CRLAD-108/2018] charges. He is in custody and shall be released from prison forthwith, if not wanted in any other case.
The appeal is allowed in these terms.
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.40,000/- 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 Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
Record be returned to the trial court forthwith.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Sudhir Asopa/-
(Downloaded on 18/01/2023 at 11:48:53 PM)
Powered by TCPDF (www.tcpdf.org)