Rajasthan High Court - Jodhpur
Radhey Shyam vs State on 16 November, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 739/2012
Arti W/o Suresh Kumar, by caste Arora, S/o U.I.T. Colony,
Shyamnagar, Purani Abadi, Sri Ganganagar
(At present lodged in Central Jail, Jodhpur.)
----Appellant
Versus
The State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 791/2012
Radhey Shyam S/o Shri Ramesh Chandra, by caste Arora,
resident of Jodhewala, at present tenant near Mohan Singh
Chowk, Purani Abadi, Sri Ganganagar, District Sri Ganganagar
(At present lodged in Central Jail Sri-Ganganagar).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. B.S. Rathore.
Mr. D.S. Thind with
Ms. Sapna Vaishnava.
For Respondent(s) : Mr. Anil Joshi, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
JUDGMENT
Judgment pronounced on ::: 16/11/2021
Judgment reserved on ::: 04/10/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants Arti and Radheshyam have been convicted and sentenced as below vide judgment dated 20.07.2012 passed (Downloaded on 16/11/2021 at 09:00:59 PM) (2 of 24) [CRLA-739/2012] by the learned Additional Sessions Judge, No.2, Sri Ganganagar in Sessions Case No.4/2012:
Offences Sentences Fine Fine Default Under Section sentences 302 IPC Life Imprisonment Rs.5,000/- 6 Months' S.I. 120B IPC Life Imprisonment Rs.5,000/- 6 Months' S.I.
All the sentences were ordered to run concurrently
2. Being aggrieved of their conviction and sentences, the appellants have preferred these appeals under Section 374(2) Cr.P.C.
3. Since both these appeals arise out of a common Judgment, they have been heard and are being decided together.
4. Facts relevant and essential for disposal of the appeals are noted hereinbelow:
5. Shri Vinod Sachdeva (PW-1) submitted a written report (Ex.P/1) to the SHO, Police Station Kotwali, Sri Gangangar on 23.12.2011 alleging inter alia that his elder brother Suresh Kumar, aged 38 years, used to live in Housing Board, Shyamnagar with his wife and children. He used to operate a lorry for selling eggs. In the night of 22.12.2011 at around 10.33 PM, he received a call from Mobile of Suresh Kumar (No.7877091535) who spoke in a frightened tone and stated that some was killing him. Suresh Kumar repeatedly asked him to come and thereafter, the call got disconnected. He tried to call Suresh Kumar again but could not succeed. He immediately picked up his motorcycle, reached the (Downloaded on 16/11/2021 at 09:00:59 PM) (3 of 24) [CRLA-739/2012] house of Suresh Kumar and asked his sister-in-law regarding whereabouts of Suresh Kumar on which, she informed that Suresh Kumar had gone out with someone. Shri Vinod Kumar then called Ashok Kumar, neighbour of Suresh Kumar and he along with his sister-in-law and Ashok Kumar, started searching for Suresh Kumar near the Shyam Nagar Puliya and the adjoining area. On reaching near the bushes, they saw the dead body of Suresh lying there with deep wounds on his head. He informed the 108 Ambulance. It was specifically alleged in the FIR that some unknown persons had murdered his brother.
On the basis of this written report, FIR No.584/2011 (Ex.P/2) came to be registered at the Police Station Kotwali Sri Ganganagar against the unknown persons for the offence punishable under Section 302 IPC. The investigation was undertaken by Mangla Ram, Sub Inspector (PW-15). It may be stated here that even before the FIR had been registered, a Q.S.T. message had been received at the City Control Room, Sri Ganganagar regarding a person having been murdered near the Shyam Nagar Puliya and Sub-Inspector Mangla Ram had already reached the spot. The mobile police van was also available at the spot. Vinod Kumar lodged the written report as above at the police station. The photography of the dead body and the adjoining areas was conducted. Blood stained soil and control soil were seized from the spot. The blood stained cap and the footwear worn by the deceased were picked up and seized from the spot. A pouch of red chilli powder was seen lying at the spot and the same was also seized. The I.O. returned to the Police Station and made entries (Ex.P/30A and Ex.P/31A) in the Rojnaamcha. It is relevant to mention here that when the Sub-Inspector Mangla Ram left the (Downloaded on 16/11/2021 at 09:00:59 PM) (4 of 24) [CRLA-739/2012] police station upon receiving the information of the murder, entry to this effect (Ex.P/34A) had been made at 11.05 pm. The entry regarding submission of the written report was recorded in the Rojnaamcha of the Police Station at 12.30 am. The dead body was forwarded to the Government Hospital, Sri Ganganagar for autopsy from where the postmortem report (Ex.P/33) was received. The blood stained clothes of the deceased were collected from the hospital. The dead body was handed over to the family members for cremation. On 23.12.2011, statements of witnesses were recorded. The I.O. claimed that he collected the mobile call details of the accused Radheshyam, complainant Vinod Kumar and Arti Devi (wife of the deceased) who was treated as a suspect in the case. Interrogation was made from the co-accused persons who allegedly confessed to their guilt whereafter, both were arrested. The accused Radheshyam allegedly gave an information (Ex.P/43) to the I.O. regarding concealment of a hammer in the bushes near the BSNL office. Acting in furtherance of such information, the accused Radheshyam got an iron hammer with a wooden handle recovered which was stained with blood and was thus seized (Ex.P/12). A site inspection plan (Ex.P/13) was prepared. The accused Arti Devi allegedly gave an information (Ex.P/44) to the I.O. which was recorded under Section 27 of the Evidence Act regarding concealment of a hammer in her house at the UIT Colony. Acting in furtherance of this information, the I.O. proceeded to the house of the accused Arti Devi and got a hammerhead recovered which was also stained with blood (Ex.P/14). A bicycle of which the seat (Ex.P/18), etc. were blood stained, was got recovered on the basis of the information (Ex.P/45) provided by the accused Radheshyam to the I.O. under (Downloaded on 16/11/2021 at 09:00:59 PM) (5 of 24) [CRLA-739/2012] Section 27 of the Evidence Act. The accused Radheshyam allegedly gave another information (Ex.P/46) to the I.O. regarding having thrown away the mobile phone of Suresh in a field where wheat crop was standing. The said information was also taken down into writing and a mobile phone model Nokia 1200 (Ex.P/20) was recovered in furtherance of such information in which, a sim No. 7877091535 was available. The blood stained clothes and shoes (Ex.P/24) allegedly worn by the accused Radheshyam at the time of the murder were also seized by the I.O. The mobile phones of Arti Devi as well as Ramesh Chandra (Ex.P/22 and Ex.P/23 respectively) were seized.
6. After investigation, a charge-sheet came to be filed against the two accused appellants for the offences punishable under Sections 302/120B IPC. As the offence of Section 302 was exclusively triable by court of Sessions, the case was committed to the court of the Sessions Judge, Sri Ganganagar from where, it was transferred to the court of the Additional sessions Judge No.2, Sri Ganganagar for trial where charges were framed against the appellants herein for the offences under Sections 302 and 120B IPC. Both the accused appellants pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 70 documents to prove its case. Upon being confronted with the allegations set out in the evidence of the prosecution witnesses, both the accused denied the same and claimed that they had been falsely implicated and are innocent. No oral evidence was led in defence and only four documents were exhibited. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and, appreciating the (Downloaded on 16/11/2021 at 09:00:59 PM) (6 of 24) [CRLA-739/2012] evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence this appeal.
7. Learned counsel Shri B.S. Rathore representing the appellant Arti and learned counsel Shri Thind representing the appellant Radheshyam, vehemently and fervently urged that the entire prosecution case is false and fabricated. The evidence of the first informant Vinod Kumar (PW-1) is totally unbelievable. He has tried to make wholesale improvements in the story as narrated in the written report which was lodged against unknown assailants. The first informant exaggerated the version while deposing in the court and alleged that he received the phone call of his brother Suresh who was pleading that Radheshyam was beating him. He also tried to improve the evidence regarding the disclosure made by Arti alleging that she stated to him that Suresh Kumar had gone with Radheshyam. Learned defence counsel urged that there is no allegation whatsoever in the written report that the informant was aware regarding the person with whom his brother had gone or that Arti had informed that Suresh had gone with Radheshyam. They thus urged that this intentional improvements made by Vinod Kumar (PW-1) in his evidence completely discredits the prosecution case bringing its foundation under grave doubt. They further urged that the evidence of Ashok Kumar (PW-4) that while he, Vinod Kumar, Arti and Radheshyam were searching for Suresh Kumar, Arti told him that Suresh had gone with Radheshyam, is totally unbelievable and is contradicted by the evidence of Vinod Kumar (PW-1) who did not state anything of the sort in his testimony. Referring to the statement of Ashok Kumar S/o Sohan Lal (PW-4), the learned defence counsel urged that this witness (Downloaded on 16/11/2021 at 09:00:59 PM) (7 of 24) [CRLA-739/2012] was portrayed to be a person who had seen Radheshyam taking away the deceased Suresh Kumar with himself. However, the conduct of this witness is totally suspicious because even though the police had started searching for the deceased just after the incident, he did not come forward to make any such disclosure before the police team even though he was present at the spot. Drawing the Court's attention to the statement of Surendra Kumar (PW-5), learned defence counsel urged that the statement of this witness further discredits the prosecution case because he gave a version totally different from what was stated by the other witnesses and claimed that the two accused Radheshyam and Arti were involved in some kind of illicit affair and that Shri Suresh Kumar was eliminated by them to remove the obstacle from their illicit affair. It was submitted that Vinod Kumar, brother of the deceased, did not make any allegation whatsoever regarding there being an illicit affair between the two accused and thus, the theory portrayed in the statement of Surendra Kumar (PW-5), is totally unbelievable. It was thus contended that neither the theory of motive for the murder nor the evidence of last seen is believable. It was further contended that the call details, which were relied upon by the trial court for recording the finding of guilt against the accused, are inadmissible in evidence because firstly, the ownership of these mobile phones was not established by any plausible evidence and secondly, the I.O. did not procure the mandatory certificate under Section 65B of the Evidence Act and hence, the call details are fit to be discarded. Lastly, learned defence counsel, discredited the evidence of Sub-Inspector Mangla Ram (PW-15) on the ground that the entire sequence of investigation as undertaken by this witness is tainted and hence, (Downloaded on 16/11/2021 at 09:00:59 PM) (8 of 24) [CRLA-739/2012] no reliance can be placed on his evidence and the incriminating recoveries allegedly made by this witness ought to have been discarded by the trial court. On these grounds, the appellants' counsel sought acceptance of the appeals and craved acquittal of the appellants.
8. Per contra, learned Public Prosecutor opposed the submissions advanced by the counsel representing the appellants. They urged that the first informant Vinod Kumar (PW-1) had no motive whatsoever to falsely implicate the accused in this case. He gave convincing evidence to the effect that Suresh called him on his mobile and at that time, he was fervently pleading that Radheshyam was killing him. This tantamounts to an oral dying declaration as Suresh was found murdered soon thereafter. The witness immediately rushed to the house of Suresh Kumar where, the accused Arti met him. She also disclosed that her husband had gone with Radheshyam, the appellant herein. In sequence of these informations, the witness Vinod Kumar, called Ashok Kumar and both immediately set out in search of Suresh Kumar. On the way, Radheshyam also met them and made a charade of joining the search operations whereas, he was well aware of the victim's fate. Soon thereafter, the police arrived at the spot and initiated the search operations. The dead body of Suresh Kumar was recovered from amongst the bushes. The blood stained soil, blood stained cap of the deceased and his footwear were picked up from the spot. The two accused persons were interrogated and after they confessed to the murder, they were arrested. The I.O. conducted independent and fair investigation in culmination whereof, the accused got blood (Downloaded on 16/11/2021 at 09:00:59 PM) (9 of 24) [CRLA-739/2012] stained hammers recovered which were used in the murder. The blood stained articles recovered from the spot, the blood stained hammers recovered at the instance of both the accused appellants, the blood stained clothes and footwear recovered at the instance of the accused Radheshyam and the blood stained clothes of the deceased were all forwarded to the FSL for serological examination from where FSL report (Ex.P/65) was received establishing presence of 'A' Group human blood on all these articles. The accused did not offer any explanation whatsoever for being in possession of these blood stained articles and hence, the presumption of guilt was rightly drawn against them. They further submitted that the prosecution has given cogent evidence to the effect that the two accused appellants were involved in an illicit extramarital affair and that the culmination thereof led to the murder so as to eliminate the only stumbling block in the illicit affair between both the accused. He thus urged that the trial court committed no error whatsoever in recording conviction of the accused because the evidence led by the prosecution is totally convincing and unimpeachable. On the basis of these submissions, they sought dismissal of the appeal praying for affirmation of the appellants' conviction and sentences as awarded to them by the trial court.
9. We have heard and considered the submissions advanced at bar and, have gone through the impugned Judgment. We have thoroughly re-appreciated the evidence available on record. (Downloaded on 16/11/2021 at 09:00:59 PM)
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10. Broadly stated, the prosecution has based its case against the accused on four circumstances:
(1) Motive (2) Last Seen (3) Recoveries and (4) Call Detail Records.
11. Now we propose to examine the evidence led by the prosecution to prove these incriminating circumstances.
Firstly, we consider the aspect of motive. The best witness who could have thrown light on this circumstance, would be Vinod Sachdeva, brother of the deceased who, upon being examined as PW-1, did not utter a single word that the appellants herein were involved in any kind of illicit affair with each other or that they had a motive to eliminate Suresh Kumar. Therefore, the bald assertion made by Surendra Kumar (PW-5) that the two accused were involved in some kind of illicit affair, is totally unworthy of credence and hence, it cannot but be concluded that the accused had no motive whatsoever so as to murder Suresh Kumar.
The evidence of last seen is primarily based on the theory that the accused Radheshyam took Shri Suresh away with him in the night of 22.12.2011 whereafter, he was not seen alive. However, this allegation, which was made by Vinod Kumar in his sworn testimony, is a sheer piece of fabrication and exaggeration because while lodging the written report (Ex.P/1), Vinod Kumar did not make any such assertion that Arti Devi informed him that Radheshyam had taken away Suresh Kumar with him. On the contrary, when we peruse the written report (Ex.P/1), it becomes clear that the prosecution case that Radheshyam took the (Downloaded on 16/11/2021 at 09:00:59 PM) (11 of 24) [CRLA-739/2012] deceased away from his home or the theory that he took him from the place where he was operating his egg-lorry, is absolutely falsified. In this written report, it was categorically stated that Suresh Kumar called Vinod Kumar on his mobile phone and told him in a frightened tone that someone was killing him. There was no dispute that Radheshyam was well known to the deceased and hence, if at all, he was the assailant, there was no reason as to why the deceased would not divulge this fact to his own brother that he was being assaulted by Radheshyam.
The conduct of the first informant Vinod Kumar (PW-1) in grossly improving upon the story as set out by him in the written report by alleging that the deceased Suresh Kumar, disclosed the name of the assailant to be Radheshyam while conveying to the complainant that he was being assaulted, makes his entire testimony doubtful. Evidently, if Suresh Kumar was aware of the name/identity of his assailant, he definitely would have disclosed the same to the informant while making the call and consequently, the informant would unquestionably have mentioned this fact in the written report. Therefore, the endeavour of the first informant in trying to create a theory in his sworn testimony that the appellants herein were the assailants of Suresh Kumar and that Suresh Kumar told him so while making the final call, is totally questionable and has to be discarded.
Thus, we have no hesitation in holding that the deceased, while making the last call to the informant, did not divulge the name of his assailant. This fact, makes the entire prosecution case as against the appellant Radheshyam totally doubtful. If at all, the appellant Radheshyam was the assailant, then while making the distress call to his brother Shri Vinod Kumar regarding so called (Downloaded on 16/11/2021 at 09:00:59 PM) (12 of 24) [CRLA-739/2012] assault, the victim Suresh Kumar would definitely have disclosed the name of the assailant. The call details (Ex.P/37 and Ex.P/39) have been relied upon by the prosecution and the perusal thereof, gives a clear indication that the deceased indeed called his brother, the first informant at 10.30 PM. The allegation as set out in the evidence of Vinod Sachdeva (PW-1) that his sister-in-law Arti, the appellant herein, told him that Shri Suresh Kumar had gone with Radheshyam, is also a gross improvement of the version as set out in the written report (Ex.P/1) and hence, the same cannot be believed and has to be discarded. Our conclusion is fortified from the evidence of Ashok Kumar Son of Narayandas (PW-3), who while deposing on oath stated that he received a call from Vinod Kumar at about 11 O' Clock in the night conveying that his brother Suresh Kumar had made a panic call in which, he was saying that someone was beating him.
12. The next consideration would be of the theory of last seen. In this regard, the prosecution examined Ashok Kumar son of Sohan Lal (PW-4). He alleged that he used to operate an egg-lorry in the Gurunagar Chowk and Suresh was also operating an egg lorry at the same place. On 22.12.2011, Suresh Kumar called his cousin brother Radheshyam and requested him to bring two trays of eggs but he refused saying that he did not have money. Radheshyam then went to the house of Suresh Kumar. About 5-7 minutes later, Suresh Kumar got a call from some unknown man. At about 10 O' Clock, Radheshyam came there and took away Suresh Kumar with his chair. Arti wife of Suresh Kumar came to Gurunagar Chowk and pleaded that someone was beating Suresh Kumar on the Shyam Nagar Puliya. He picked up his lorry, went (Downloaded on 16/11/2021 at 09:00:59 PM) (13 of 24) [CRLA-739/2012] home and then proceeded to the Shyam Nagar Puliya. He allegedly saw Radheshyam coming across on his bicycle. The witness asked Radheshyam as to whether he had met Suresh upon which, he refused. They both went to the Shyam Nagar Puliya. It was quite dark. Then, he instructed Radheshyam to bring a torch from home. About 5-7 minutes later, Radheshyam came back with the torch. In the meantime, Arti and Vinod Kumar also came there on a motorcycle. They went near the Puliya and called out for Suresh Kumar, however, they did not get any response. They proceeded in the bushes and saw chilli powder spilt around. Suresh Kumar was lying amongst bushes and blood was oozing out from his head and mouth. They called 108 Ambulance and the police. He then, proceeded towards home. In cross-examination, the witness admitted that Arti approached him on his egg-lorry and told him that Suresh Kumar had called and told that someone was beating him. He reached the place of incident at about 11 O' Clock. Suresh Kumar would normally operate his egg-lorry till 11 O' Clock, however, on the fateful day, he went back home with Radheshyam at about 9.30 pm. He did not notice any quarrel between Suresh Kumar and Radheshyam.
From a perusal of the statement of this witness, it becomes clear that though, he has been portrayed to be the witness of last seen but manifestly, his observation was only limited to the extent that Radheshyam and Suresh Kumar went back home with the egg-lorry. Apparently, Suresh must have gone to the Shyam Nagar Puliya after going home because his egg lorry was not seen anywhere around the place of incident and thus, it can safely be presumed that after proceeding home with Radheshyam, the (Downloaded on 16/11/2021 at 09:00:59 PM) (14 of 24) [CRLA-739/2012] deceased must have left the lorry there and then would have gone to the Shyam Nagar Puliya.
13. In this background, there is nothing on record to satisfy the Court that the appellant Radheshyam was lastly seen in the company of the deceased before he was done to death. Furthermore, the witness, even though being closely related to the deceased, did not utter a single word regarding existence of illicit affair between the accused Radheshyam and Arti.
14. Surendra Kumar (PW-5) is a cousin of the deceased Suresh Kumar. He stated in his evidence that his cousin Suresh Kumar used to operate an egg-lorry in the Gurunagar Chowk. Radheshyam was running a cycle repairing shop in the Gol Bazaar and was staying in the house of Suresh Kumar for the last few days. He heard that Radheshyam and Arti were involved in some kind of illicit affair and thus, the relationship between Suresh Kumar and Arti had gone sour. At about 10.30 pm., when he reached home, he saw a crowd gathered outside the house of Suresh Kumar. On making an enquiry, he was told that Suresh Kumar had been murdered. At that time, Vinod Kumar, Ashok Kumar, Radheshyam and people from neighbourhood had gathered there. The accused Arti told that two persons had come and had taken away Suresh Kumar with them and thereafter, he was killed and that his dead body was lying near the Shyam Nagar Puliya. He also went there and saw the police present and the dead body of Suresh Kumar was lying near the Puliya. Two days later, he heard that Arti and Radheshyam were indulged in an illicit (Downloaded on 16/11/2021 at 09:00:59 PM) (15 of 24) [CRLA-739/2012] affair and that they had murdered Suresh Kumar to remove the obstacle from their relationship.
A thorough consideration of the evidence of this witness, makes it clear that his allegations are purely conjectural in nature and the evidence, which he has given, is highly contradictory to the version as deposed by the other material prosecution witnesses which we have already discussed above. The timing of events, which this witness has narrated, is at gross variance with what was stated by the first informant and Ashok Kumar. The witness claimed that he came to know that two accused were involved in some kind of illicit affair but the source of his information was not made clear.
In cross-examination, the witness admitted that his police statement (Ex.D/2), was recorded after 5-6 days of the incident (on 29.12.2011). He admitted that he was not aware that who told him about the murder. He never saw the two accused involved in illicit relations but got this information from people. He did not tell parents of Suresh kumar regarding so called extramarital affair. He went to the place of incident at about 10.30 PM. Manifestly, this witness has given a concocted version altogether. Firstly, if he had seen any of the events in the manner alleged by him, then, he should not have kept silent for almost six days and would be expected to immediately inform the police officers of this observation when he reached the place of incident on the same night. The rank silence of this witness in making these disclosures at the earliest available opportunity, brings his evidence under a grave cloud of doubt and he is, by no means, a reliable witness. Another fact which makes the theory of the so-called extramarital affair doubtful, needs to be mentioned at this very stage. The (Downloaded on 16/11/2021 at 09:00:59 PM) (16 of 24) [CRLA-739/2012] witness Surendra Kumar stated that the accused Radheshyam was living in the house of Suresh Kumar for the last few days. On the fateful day, the deceased called Radheshyam and asked him to bring two trays of eggs. If at all, the accused Radheshyam and the accused Arti were involved in an extramarital affair then, there was no reason as to why the deceased would allow the accused to stay in his home and also, there could not have been any reason for him to request the accused for bringing the egg trays. On the contrary, this fact clearly indicate that there was nothing wrong in the relations between the spouses.
The witness Pappu Singh (PW-6) was examined in an attempt to prove the theory of the extramarital affair between the two accused but, he did not support the prosecution case and was declared hostile. Thus, we have no hesitation in holding that the entire theory of the extramarital affair has been cooked up posteriorly so as to lend credence to the totally conjectural prosecution case.
15. The dead body of Suresh Kumar was subjected to autopsy by Dr. K.K. Garg (PW-14). He proved the postmortem report (Ex.P/33) taking note of six injuries, some of them being lacerated wounds on the head and the facial region of the deceased. These injuries were opined to be sufficient to cause death in the ordinary course of nature. In cross-examination, the witness admitted that the possibility of these injuries being received in a vehicular accident cannot not be ruled out.
16. The investigation of the case was undertaken by Mangla Ram (PW-15). He alleged that he was posted as a Sub-Inspector at (Downloaded on 16/11/2021 at 09:00:59 PM) (17 of 24) [CRLA-739/2012] Police Station Kotwali, Sri Ganganagar on 22.12.2011. He received a Q.S.T. message from the City Control Room at 10.05 pm. that a man had been killed at the Shyam Nagar Puliya. He immediately rushed there with the police team. A mobile police van was already parked there. Before proceeding, he made an entry (Ex.P/34A) in the Rojnaamcha of police station. Vinod Sachdeva (PW-1) submitted a written report of this case on which, the FIR No.584/2011 (Ex.P/2) was registered and the investigation was assigned to him. He undertook the formal steps of investigation viz. preparation of Site Inspection Plan, collection of the blood stained and control soil from the place of the incident. The photographs were got snapped. The dead body was forwarded to the hospital for autopsy. The blood stained cap and the fancy chappals of the deceased were recovered from the place of the incident. On returning to the police station, entry (Ex.P/35A) was made in the Rojnaamcha after the autopsy had been conducted. The clothes of the deceased were collected from the medical officers and were seized. The call details of the mobile phones of Radheshyam, Arti, Suresh Kumar and Vinod Kumar were procured with assistance from the office of the Superintendent of Police. On analysis of the call details, the finger of suspicion pointed towards these two appellants who were interrogated on which, they confessed to have committed the murder. Both were arrested on 24.12.2011. During the course of investigation, Radheshyam gave voluntary information to the I.O. which was recorded in memo (Ex.P/43) regarding the fact that he had concealed the hammer used for committing the murder in the bushes amongst the BSNL office. Acting in furtherance of such information, the accused Radheshyam allegedly took the I.O. to some bushes near the (Downloaded on 16/11/2021 at 09:00:59 PM) (18 of 24) [CRLA-739/2012] BSNL office and got a blood stained hammer with a wooden handle recovered. The same was seized and sealed. The accused Arti also gave an information (Ex.P/44) to the I.O. under Section 27 of the Evidence Act and acting in furtherance thereof, she got a blood stained hammerhead recovered vide memorandum (Ex.P/14) from her house in the UIT colony. The accused Radheshyam gave another information (Ex.P/45) to the I.O. and got recovered a blood stained bicycle (Ex.P/18) from which, the blood stains were lifted in a gauze bandage. Another information (Ex.P/46) was provided by the accused Radheshyam and acting in furtherance thereof, the mobile phone of the deceased was recovered from the field of Brajlal vide memo (Ex.P/20). The accused Radheshyam provided yet another information (Ex.P/47) to the Investigating Officer and got recovered his own blood stained clothes and shoes vide memo (Ex.P/24) from the house of his relative Surendra Kumar. Further information (Ex.P/48) was provided by the accused and acting in furtherance thereof, he got cane handle of the hammer recovered from the canal. The mobile phone of the accused Arti was recovered vide memo (Ex.P/22). Radheshyam's father got his mobile phone recovered vide memo (Ex.P/23). After concluding investigation, a charge-sheet came to be submitted against the accused appellant for the above offences. In cross-examination, the witness admitted that he received the authorization to investigate the case on 23.12.2011 at about 12.30 pm. Ashok Kumar and Ramniwas were associated as witnesses in memorandum (Ex.P/6 to Ex.P/23). Pertinent questions were put to the witness that he had fabricated the evidence of the case so as to falsely implicate the accused in this case, however he denied the same.
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(19 of 24) [CRLA-739/2012] From the evidence of this witness, it becomes clear that he did not make any investigation whatsoever regarding the so called theory of extramarital affair between the two accused. His entire evidence pertains to the so-called incriminating recoveries and collection of the call detail records. The Investigating Officer did not make any effort to procure the certificate under Section 65B of the Evidence Act and hence, the call detail records are inadmissible in evidence.
17. We have already concluded that the evidence of the prosecution witnesses regarding the motive (extramarital affair and last seen) and the theory of last seen is not reliable. Thus, the only evidence which the prosecution can bank upon so as to bring home the guilt of the accused, would be in the form of the recoveries purportedly effected by Mangla Ram (PW-15) during the course of investigation. In this regard, we are of the view that the recoveries are totally cooked-up and concocted. For reaching to this conclusion, we would like to refer to the evidence of Ashok Kumar (PW-4) who stated that Arti approached him at about 10 O' Clock and told him that someone was beating Suresh Kumar. The witness proceeded to the Shyam Nagar Puliya. Radheshyam met him on the way. Vinod Kumar (PW-1) also stated that Radheshyam was also participating in the search for the victim. As Radheshyam was participating in the efforts to search for the victim soon after the panic call was received by Vinod Kumar, there was no opportunity for Radheshyam to have gone to the house of Surendra Kumar for concealing his blood stained clothes etc. which the Investigating Officer claims to have recovered in furtherance of the information (Ex.P/47) vide memo (Ex.P/24). In (Downloaded on 16/11/2021 at 09:00:59 PM) (20 of 24) [CRLA-739/2012] the short window of time, the accused Radheshyam would have got no opportunity to change his clothes and to come back to the place of incident. The police had reached the spot and investigation was undertaken throughout the night. Neither the Investigating Officer nor any of the material prosecution witnesses stated that Radheshyam went away from the place of incident after the police had arrived there. Therefore, if at all, clothes of Radheshyam were stained with blood, then the Investigating Officer would definitely have observed this suspicious circumstance and the accused would have been picked up immediately. However, no such effort was made by the Investigating Officer on the fateful night. Therefore, the recovery of the blood stained clothes is manifestly a piece of fabrication.
18. In the same sequence, we find that Ashok Kumar (PW-4) made a categoric that Arti approached him at 10 O' Clock pleading that someone was beating her husband. Admittedly, Suresh Kumar made the panic call to the witness at 10.30 pm. and thus, there was no possibility of Arti being a part of the assault or she having an opportunity to carry the hammerhead for hiding it in her house. Thus, the recovery of hammerhead which the Investigating Officer claims to have effected vide seizure memo (Ex.P/14) in furtherance of the information (Ex.P/44) provided by the accused Arti under Section 27 of the Evidence Act, is totally fabricated. On the same reasoning and, since we have held that the Investigating Officer's claim that he recovered the blood stained clothes of the accused Radheshyam and the blood stained hammerhead from the accused Arti to be unconvincing and rather fabricated, there cannot be any reason to rely upon the Investigating Officer's claim (Downloaded on 16/11/2021 at 09:00:59 PM) (21 of 24) [CRLA-739/2012] that he recovered blood stained hammerhead and the mobile phone of the deceased at the instance of the accused Radheshyam. The mobile phone was recovered lying amongst the fields. There is no allegation that the mobile phone had been switched off and thus, the first reaction of the Investigating Officer would be to attempt to call on the mobile phone of the deceased which immediately would have rung, leading to its discovery. Therefore, the recovery of the mobile phone is also dubitable.
19. In wake of the discussion made herein above, we are of the view that the entire chain of recoveries which the Investigating Officer claimed to have effected during the course of investigation of FIR, is unbelievable and unreliable. In this regard, we may also state that the Investigating Officer associated only Ashok Kumar (PW-3) in most of these recoveries. Ashok Kumar is closely related to the deceased and thus also, the recoveries do not inspire confidence.
The prosecution has placed reliance upon the FSL report (Ex.P/65) as per which, the blood smeared soil, the blood stained cap and a pair of fancy chappals recovered from the spot, the pant and shirt of the deceased, two hammers (recovered from both accused), the bloodspots lifted from the bicycle of the accused Radheshyam and the clothes of Radheshyam, all tested positive for 'A' group human blood. We would like to observe that even if the recoveries were to be believed, mere recovery of blood stained articles without there being any other link in the chain of circumstances to connect the accused with the crime, cannot be considered sufficient so as to link them with the alleged murder. In this regard, we would like to place reliance upon the following (Downloaded on 16/11/2021 at 09:00:59 PM) (22 of 24) [CRLA-739/2012] observations made by Hon'ble the Supreme Court in the case of Mustkeem vs. State of Rajasthan, AIR 2011 SC 2769:-
"13.It is fully established that the prosecution case is based on circumstantial evidence. In this view of the matter, we have to see if the chain of circumstances was so complete so as to unerringly point the finger only at the Appellants as perpetrators of crime. Before delving into the legal analysis, however, we would like to examine the statements of P.W.8 and P.W.10 in brief .
14.As per the prosecution story, Appellants Mustkeem and Arun had met P.W.10 - Chittar a day before the occurrence, in whose house deceased Ram Pal Yadav, was residing as a tenant, for last 5 to 6 years and he deposed that Appellants Mustkeem and Arun had told him that, that day it would be the last visit of Ram Pal and he will not come to his house again. Similar is the evidence of P.W.9 - Lali Devi, wife of P.W.10. She has repeated the same version as had been deposed by P.W.10- Chittar.
15. P.W.8 - Smt. Supyar deposed that Mustkeem, Arun and Nandu used to visit Ram Pal Yadav regularly as all of them were dealing in illicit liquor trade. On coming to know from Lali Devi that Arun, Mustkeem and Nandu were keen to eliminate Ram Pal Yadav, she had telephonically asked him to meet her at the earliest. When deceased Ram Pal Yadav met Smt. Supyar, she informed him about the intentions of the accused. She also told him that Arun and Mustkeem both had said that it would be the last visit of Ram Pal Yadav to her house as they were planning to eliminate him.
16.Thus, from an appraisal of the evidence of P.W.8, P.W.9 and P.W.10, the Trial Court and the Division Bench of the High Court ruled that prosecution has been able to establish that deceased Ram Pal Yadav and Appellants were all involved in illegal trade of liquor and a day prior to the date of incident, Arun and Mustkeem had expressed their intentions to eliminate Ram Pal to P.W.9 and P.W.10.
17.High Court while considering the Appellants' appeal found this factor as one of the incriminating circumstances to eventually hold the Appellants guilty for the aforesaid offence.
18. The other circumstance found against the Appellants by High Court was that, on the basis of the disclosure statements of the Appellants, weapons alleged to be used in the commission of offence and clothes stained with human blood were recovered. In its Judgment, the High Court has discussed in extenso the effect of Section 27 of the Indian Evidence Act (hereinafter shall be referred to as 'Act') and subsequent discovery of the material objects thereafter.(Downloaded on 16/11/2021 at 09:00:59 PM)
(23 of 24) [CRLA-739/2012]
19. On the basis of the report of the serologist, it has come on record that traces of AB blood group were found on the pants and baniyan of the deceased. The prosecution has also averred that Sword and clothes stained with human blood group AB were also recovered at the instance of Appellants, from the places shown by them and known only to them and none others. On account of aforesaid circumstances, the High Court was of the opinion that the chain of circumstances was complete and the completed chain of circumstances pointed the finger for commission of the said offence only by the Appellants.
....
23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. "
20. As we have already concluded all the material prosecution witnesses viz. Vinod Kumar (PW-1), Ashok Kumar (PW-3) and Surendra Kumar (PW-5) have given cooked up testimony against the accused appellants and, as the recoveries do not inspire confidence, there remains nothing on the record so as to connect the accused with the charge of committing murder of Suresh Kumar.
21. As a consequence, the appreciation of evidence as undertaken and the finding recorded by the learned trial court while recording the guilt of the accused appellants by the impugned Judgment is not appropriate. The impugned judgment does not stand to scrutiny and hence, the same cannot be sustained.
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(24 of 24) [CRLA-739/2012]
22. As a result of the discussion made hereinabove, the appeals succeed and are hereby allowed. The impugned Judgment dated 20.07.2012 passed by the learned Additional Sessions Judge, No.2, Sri Ganganagar in Sessions Case No.4/2012 is hereby quashed and set aside. The accused-appellants are acquitted of the charges punishable under Sections 302 and 120B IPC. The appellants are in custody and shall be released from prison forthwith, if not wanted in any other case.
23. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants is directed to furnish a personal bond in the sum of Rs.15,000/- 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 appellants shall appear before the Supreme Court.
24. Record be returned to the trial court forthwith.
25. A copy of this order be placed in each file.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
5-Tikam/-
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