Rajasthan High Court - Jodhpur
Hari Ram And Anr vs State on 13 October, 2020
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 74/2015
01. Hariram S/o Shri Ambalal Ji, By Caste Kumawat, Age about
35 years, R/o Jitawal, District Chittorgarh (Raj.)
(At present lodged in Central Jail Udaipur).
02. Smt. Deubai W/o Shri Satyanarayan, By Caste Kumawat,
Age about 30 years, R/o Village Ghatiyawli, District
Chittorgarh (Raj.)
(At present lodged in Women Central Jail Udaipur).
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. J.V.S. Deora.
For Respondent(s) : Mr. Anil Joshi, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA
JUDGMENT
Date of Reserve ::: 24/08/2020
Date of Pronouncement ::: 13/10/2020
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants herein have been convicted and sentenced as below vide judgment dated 20.10.2014 passed by the learned Additional Sessions Judge No.3, Chittorgarh in Sessions Case No.50/2014:
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.5,000/- 6 Months' S.I.
Section 120B IPC Life Imprisonment Rs.5,000/- 6 Months' S.I. (Downloaded on 13/10/2020 at 08:38:43 PM) (2 of 16) [CRLA-74/2015]
2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C.
3. Brief facts relevant and essential for disposal of the appeal are noted herein below:
4. Shri Nandaram Kumawat (PW-5) lodged a written report (Ex.P/10) with the SHO, Police Station Shambhupura, District Chittorgarh on 23.06.2012 at the place of incident (Ghatiyawli) wherein, he alleged that on the night intervening 22.06.2012 and 23.06.2012, he and his brother Satyanarayan had gone to guard the groundnut crops. At about 11:00 pm., Satyanarayan brought home cooked food for both of them. Both of them consumed the food and went to sleep at about 11.30 pm. He was sleeping on a cot whereas, Satyanarayan was sleeping on the bullock cart parked about 25 feet away. He got up at about 7.00 AM and noticed that his brother had not woken up. Upon closer scrutiny, he noticed a profusely bleeding wound on the head of his brother. He called out for Shobhalal Teli whose field was located nearby. who came there with Bhagwanlal Kumawat. They checked Satyanarayan and realized that he had passed away. The dead body of Satyanarayan (hereinafter referred to as 'the deceased') was brought home on the bullock cart and the police was informed. The informant alleged in the written report (Ex.P/10) that some unknown persons had killed his brother. On the basis of the report aforestated, an FIR No.120/2012 came to be registered (Downloaded on 13/10/2020 at 08:38:43 PM) (3 of 16) [CRLA-74/2015] at the Police Station Shambupura and investigation was undertaken by Darshan Singh (PW-21) who prepared the following documents:
(i) Naksha Mauka (Ex.P/1),
(ii) Panchayatnama Lash (Ex.P/2),
(iii) Site Inspection Memo (Ex.P/3),
(iv) Seizure of blood stained and control soil (Ex.P/4),
(v) seizure memo of blood stained torn Lugri of the deceased (Ex.P/5),
(vi) seizure memo of blood stained pieces collected from the bullock cart (Ex.P/6), and
(vii) seizure memo of blood stained Baniyan of the deceased (Ex.P/8).
The dead body of Satyanarayan was subjected to postmortem by a Medical Board constituted at the General Hospital, Chittorgarh on the request of SHO PS Shambhupura.
Total four injuries were observed all on the head and face of the deceased. After conducting autopsy, the Medical Board issued a postmortem report (Ex.P/29) opining that the cause of death of Satyanarayan was neurological shock due to antemortem head injury. The I.O. claims to have come across evidence suggesting prevalence of an illicit affair between Hariram and Deubai (wife of the deceased) on which, the finger of suspicion pointed towards accused Hariram who was arrested on 26.06.2012 vide arrest memo (Ex.P/48). A mobile instrument was recovered from the accused Hariram. An iron rod as well as the blood stained clothes of the accused Hariram were recovered in furtherance of the informations provided by him to the I.O. under Section 27 of the (Downloaded on 13/10/2020 at 08:38:43 PM) (4 of 16) [CRLA-74/2015] Evidence Act. The accused Deubai was arrested on 27.06.2012. The I.O. recorded informations of both the accused and effected the following recoveries/discoveries:
(i) Seizure of two Mobile Phones from accused Hariram (Ex.P/49),
(ii) Seizure of Iron rod from accused Hariram (Ex.P/15), and
(iii) Seizure of blood stained Shirt and Pant of the accused Hariram (Ex.P/16)
(iv) Seizure of a mobile phone from Deu Bai (Ex.P/9).
The blood stained articles collected from the place of incident, the dead body of victim and the articles recovered in furtherance of the information provided by the accused under Section 27 of the Evidence Act were all forwarded for chemical/serological examination from where, a FSL report (Ex.P/64) was received concluding that the blood smeared soil collected from the place of incident, the Lugri recovered from the cart on which the deceased was sleeping, the blood swab collected from the place of incident and the iron rod, pant and shirt recovered at the instance of the accused, tested positive for presence of 'A' group human blood. The I.O. continued to investigate the angle of illicit affair and in this endeavour, the call detail records of the mobile phones recovered from both the accused were procured from the respective service providers. Thereafter, a charge-sheet was filed against both the accused for the offence under Section 302 read with Section 120B IPC.
As the offences were exclusively Sessions triable, the case was committed to the court of Sessions Judge, Chittorgarh from where, it was transferred to the court of the Additional Sessions Judge No.3, Chittorgarh for trial. The trial court, framed charges against the accused persons for the above offence. Both the (Downloaded on 13/10/2020 at 08:38:43 PM) (5 of 16) [CRLA-74/2015] accused persons pleaded not guilty and claimed trial. The prosecution examined as many as 23 witnesses and exhibited 64 documents to prove its case. When questioned under Section 313 Cr.P.C. and upon being confronted with the allegations appearing against them in the prosecution evidence, the accused denied the same and claimed to be innocent. However, no witness was examined in defence. After hearing the arguments advanced by the Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the accused appellants as above. Hence, this appeal.
5. Shri Kalu Ram Bhati, learned counsel representing the appellants, vehemently and fervently contended that the entire prosecution case is false and fabricated. According to the counsel for the appellants, there is no tangible evidence on the record of the case so as to satisfy the Court that the accused appellants were indulged in any kind of illicit affair or that they had a motive to murder Shri Satyanarayan. He contended that if at all, there was any suspicion in the minds of the family members of Satyanarayan, that Deubai, his wife, was indulged in any kind of illicit affair with Hariram then, this fact would have been mentioned in the FIR itself. He further submitted that none of the prosecution witnesses, being the close family members of the deceased Satyanarayan, gave convincing evidence to establish the existence of an illicit affair between the two accused. The recoveries effected by the I.O. at the instance of the accused persons were fabricated and have not been corroborated by independent witnesses. No conclusion inculpating the accused for (Downloaded on 13/10/2020 at 08:38:43 PM) (6 of 16) [CRLA-74/2015] the offences can be drawn from the call detail records because neither they were proved as per law nor did they corroborate the conjectural prosecution theory regarding the so called illicit affair between the two accused. Shri Bhati further submitted that even if it is assumed for a moment that the blood stained recoveries were effected from the accused Hariram, the same cannot be acted upon in absence of any substantive evidence, direct or circumstantial, against the accused. His earnest contention was that there is no acceptable evidence on the record of the case so as to affirm the conviction of the appellants as recorded by the trial court. On these grounds, Shri Bhati implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellants of the charges.
6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the counsel representing the appellants. He urged that the prosecution has led convincing and clinching evidence to establish that the two accused appellants were in an illicit relationship. The accused appellants realized that Satyanarayan's existence was a hurdle in their continued extra-marital affair and therefore, they conspired to eliminate Satyanarayan. The mobile phones in use of the accused appellants were used to hatch the conspiracy and in furtherance of this complot, Satyanarayan was killed while he was sleeping in the field. As per the learned Public Prosecutor, there is conclusive evidence substantiating a liaison between the two accused. As per him, the strong evidence of motive is duly supported by the incriminating recoveries and discoveries which were effected by I.O. in a trustworthy manner while undertaking (Downloaded on 13/10/2020 at 08:38:43 PM) (7 of 16) [CRLA-74/2015] the investigation and thus, as per the learned Public Prosecutor, there exists no justification whatsoever to interfere in the well reasoned Judgment rendered by the trial court. Learned Public Prosecutor further contended that the call detail records which have been proved by examining the concerned witnesses and exhibiting the certificates issued under Section 65B of the Evidence Act, conclude the fact that the accused were in continuous contact with each other and that they used the mobile conversations as a tool to devise a plan for the murder. With these submissions, learned Public Prosecutor, vehemently and fervently implored the Court to affirm the impugned judgment and dismiss the appeal.
7. We have given our thoughtful consideration to the submissions advanced at bar and have minutely gone through the impugned Judgment and thoroughly re-appreciated the evidence available on record.
8. It is clear from the record that the prosecution case is based purely on circumstantial evidence because as per the FIR, Shri Satyanarayan was murdered in his field by an unknown person on the night intervening 22.06.2012 and 23.06.2012. As per the FIR, the first informant PW-5 Nandaram (brother of the deceased, who was sleeping beside him, did not notice anything amiss till he woke up the next day at about 7 AM when he saw the dead body of Satyanarayan lying on the bullock cart. Thus the prosecution evidence which is purely circumstantial in nature, needs to be appreciated and assessed minutely so as to consider whether the chain of circumstances put forth by the prosecution to affirm the (Downloaded on 13/10/2020 at 08:38:43 PM) (8 of 16) [CRLA-74/2015] guilt of the accused appellants is so complete in all respects, that it unequivocally establishes the guilt of the accused and is inconsistent with their innocence or the guilt of anyone else. For this purpose, the evidence of the material prosecution witnesses needs to be carefully analyzed.
Janibai (PW-2), mother of the deceased, stated in her evidence that the deceased was mentally unstable for the past five years. His wife Deubai would go and live at her father's house during these spells. She used to come back occasionally, stayed for a few hours and went back. She was apprehensive that her husband might harm her and therefore, she periodically visited her husband but did not stay on with him. The witness further alleged that Deubai used to be on call on her mobile phone for hours together. In cross-examination, the witness admitted that Deubai was married to Satyanarayan about 15 years ago. Most of the time, she stayed at her father's house and visited the matrimonial home briefly. The witness did not utter a single word that there was any doubt of Deubai being involved in an illicit affair with anyone.
Nandaram (PW-5) deposed that he and the deceased Satyanarayan took dinner and went to sleep in their field in the night intervening 22.06.2012 and 23.06.2012. On the next morning, he discovered the dead body of Satyanarayan; informed the police and participated in the investigation undertaken by the I.O. He also stated that the dead body of Satyanarayan was handed over to the family members after postmortem. This witness too, did not utter a word about any illicit affair between the two accused.
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(9 of 16) [CRLA-74/2015] Dayaram Kumawat (PW-9) stated that he had gone to Chittorgarh for personal work around two months before the incident. There, in the late hours of the day, he saw Hariram and Deubai talking to each other. In cross-examination, the witness admitted that he had never talked to Deubai. He incidentally saw the accused appellants talking to each other. His evidence is also inconsequential on the aspect of the so-called illicit affair.
Mangilal Kumawat (PW-14) deposed in his testimony that the wife of the deceased was of questionable character. This inference was based on her coming home at odd hours and unknown people visiting her house. He also stated that the deceased and Deubai never quarreled with each other. Most of the time, Satyanarayan's wife would stay at her father's house. In cross-examination, the witness admitted that he was casting an aspersion on the character of Deubai only because he saw her coming home at odd hours. Thus, no inference of an illicit affair between the two accused can be drawn from the evidence of this witness as well.
Darshan Singh (PW-21) was posted as SHO, Police Station Shambhupura at the time of the incident. He investigated the matter and gave evidence regarding the procedure of the investigation undertaken by him. In his examination-in-chief, the witness alleged that when inquiry was made regarding the circumstances surrounding the murder of Satyanarayan, his wife Deubai's activities came under scanner. Upon this, the I.O. proceeded to collect the call details of the mobile instrument which Deubai used. When call details thereof were procured and analyzed, it came to the fore that Deubai was in regular telephonic contact with Hariram. Upon this fact being disclosed, Hariram was apprehended and interrogated. He confessed that he hatched a (Downloaded on 13/10/2020 at 08:38:43 PM) (10 of 16) [CRLA-74/2015] plot and conspired with Deubai and murdered Satyanarayan. Based on the material so collected during investigation, both the accused Hariram and Deubai were found to be involved in the murder. In cross-examination, the I.O. admitted that Janibai (the mother of the deceased), Nandaram (brother of the deceased) and Bhagwanlal (cousin of the deceased), did not cast any allegations on Deubai's character.
Ex facie, the evidence of this witness is highly dubious and unworthy of credence. The sequence of events as available on record, indicate that Hariram was arrested on 26.06.2012 whereas, Deubai was arrested on 27.06.2012. The call detail records which the I.O. procured so as to cast suspicion on the two accused, were collected as late as on 08.08.2012. It is manifest that as on 27.06.2012, the I.O. could not have had even the faintest idea that the accused appellants were in telephonic contact with each other and thus, arrest of the accused persons was groundless. The allegation levelled by the I.O. regarding the accused Deubai being a woman of immoral character, is also unfounded for the simple reason that the close family members of the Satyanarayan have clearly stated that he was mentally unstable over a significant period of time and hence, Deubai refrained from visiting her matrimonial home because she felt that she could be harmed by her husband in his aggressive mental state. The endeavour of the other witnesses, which we have discussed above, is not enough to satisfy the Court that the same can be relied upon so as to draw a conclusion that Deubai was involved in any kind of illicit relationship with Hariram. Therefore, we have no hesitation in holding that the conclusion drawn by the trial court in the impugned judgment regarding the two accused (Downloaded on 13/10/2020 at 08:38:43 PM) (11 of 16) [CRLA-74/2015] being in an illicit relationship, is not substantiated by tangible oral evidence and hence, there is no evidence against the accused of having a motive to murder Satyanarayan.
9. The other significant link in the chain of circumstances relied upon by the prosecution is in the form of the call detail records (Ex.P/19 to Ex.P/26) which were proved by the I.O. Darshan Singh (PW-21) and Saurabh Kumar (PW-23). Darshan Singh (PW-
21) alleged in his testimony that mobile phone instruments were recovered from Hariram vide seizure memo (Ex/P.49) and Deubai (Ex/P.9). The mobile phone which was recovered at the instance of Deubai vide seizure memo (Ex.P/9) was having the Airtel Sim No.8769136240 inserted therein. Two mobile phones were seized from Hariram vide seizure memo (Ex.P/49) having sim Nos.9414734212 and 8829934212. The I.O., Darshan Singh (PW-
21), while deposing in Court, did not elaborate or specify as to which sim was recovered from which particular accused or had been used in the specified mobile instrument. The only witness from the service provider, who was examined to prove the CDR, was Saurabh Kumar (PW-23), who exhibited the document/certificate (Ex.P/59) pertaining to the mobile No.8769136240. This mobile sim was recovered from the possession of the accused appellant Deubai. However, no witness of the service provider was examined nor was the certificate under Section 65B of the Evidence Act proved on record so as to substantiate the call details pertaining to the two mobile sims allegedly recovered from the mobile instruments in possession of the accused Hariram. Needless to say, that in cases where, the prosecution proposes to rely upon the call details as a piece of (Downloaded on 13/10/2020 at 08:38:43 PM) (12 of 16) [CRLA-74/2015] incriminating evidence, the description and analysis, howsoever brief of the call records and the inferences sought to be drawn therefrom must be elaborated either by the I.O. or by other competent prosecution witness so that a logical conclusion can be drawn therefrom. In the present case, when the I.O. Darshan Singh (PW-21) was cross-examined in this regard, he admitted that he did not prepare any memorandum of the call details (Ex.P/19 to Ex.P/26) but a brief analysis thereof was narrated in the charge-sheet. The charge-sheet filed by Darshan Singh (PW-
21) was not exhibited in evidence but still, we have perused the same. Other than a bald assertion in the charge-sheet that appellant Deubai was continuously in contact with appellant Hariram through the mobile sim numbers, referred to supra, there is no pertinent statement in the charge-sheet which can assist the Court in arriving at a firm conclusion that the accused persons were in frequent contact with each other so as to draw an inference of infidelity or of conspiracy. On perusing the call details and tower details of the mobile sim No.9414734212 allegedly in possession of the accused Hariram, it is clear that on the night intervening 22.06.2012 and 23.06.2012, the mobile was shown to be active in the location of the towers of Hanupiya, Daulatpura, Mandal, Badhalikhera, Ghosunda. The I.O. was unquestionably under an obligation to investigate if these locations were in the vicinity of the place where Shri Satyanarayan was murdered. The other set of call details which the I.O. procured relates to a mobile No.8829934212. There was no elaboration by the I.O. regarding connectivity of this sim and the sim No.8769136240 which was allegedly recovered from the possession of appellant Smt. Deubai. (Downloaded on 13/10/2020 at 08:38:43 PM)
(13 of 16) [CRLA-74/2015] Thus, it is our firm view that no definite conclusion inculpating the accused appellants can be drawn from the call detail records.
10. Without prejudice to the above findings, the highest inference which can be drawn from these call details, is that both the accused used to talk to each other on mobile phone. No description was given by any of the prosecution witnesses regarding the location of all the three mobile numbers or whether the same were active in the vicinity of the place of incident when Satyanarayan was murdered. Thus, these call details, at best, give rise to an inference regarding the two accused being in contact with each other but nothing more than that.
11. Other than a mobile phone, nothing incriminating was recovered from the accused appellant Deubai. The other set of recoveries which have been effected from the accused Hariram are in the form of his own blood stained clothes and an iron rod. In this regard, we first refer to the evidence of Medical Jurist Dr. Jitendra (PW-17) who deposed that when autopsy was conducted by the Medical Board of the body of Satyanarayan, two chopped wounds admeasuring 7X2 cms. and 4X2 cms. both bone deep were noticed on the frontal bone of the deceased. Both the injuries were inflicted with a heavy cutting weapon. In addition thereto, there were four lacerated wounds and abrasions on the body of the deceased. Manifestly, the chopped wounds could not have been caused with the iron rod. Thus, definitely more than one assailant was involved in the fatal assault made on Satyanarayan on the night intervening 22.06.2012 and 23.06.2012. An iron rod and blood stained clothes were recovered from the appellant Hariram on 26.06.2012. The non-recovery of (Downloaded on 13/10/2020 at 08:38:43 PM) (14 of 16) [CRLA-74/2015] the sharp weapon throws a doubt on the sanctity of the investigation carried out by the I.O. A possible inference which can be drawn in this circumstance, is that the accused might have destroyed/disposed of the sharp weapon in such a manner that it could not be recovered later. If this was true for the sharp weapon, then there was no reason as to why the accused Hariram would preserve and secrete the worthless iron rod and his own blood stained clothes and give an opportunity for the recovery thereof at a later stage so as to create evidence against himself. Evidently, the FIR had been lodged against the unknown assailants. The accused was having ample time and opportunity to destroy evidence of the offence and it is contrary to normal human behaviour that these worthless incriminating articles would be preserved by the accused for almost three days. In this regard, we may take note of the fact that Satyanarayan was murdered in a brutal manner while he was sleeping just 25 feet away from his brother Nandaram. Thus, the assault must have been made in a clandestine planned manner and hence, there was hardly any possibility that the assailant, who had taken such meticulous pains to carry out the actual assault, would leave loose ends in the form of blood stained weapons and clothes that the same could be recovered at the later stage. Therefore, we are not convinced by the evidence of the recoveries attributed by the I.O. to the accused appellant Hariram.
That apart, mere fact of blood stained recoveries with matching blood group of the deceased would not conclusive of any incriminating circumstance against the accused Hari Ram in absence of any substantive evidence to connect him with the alleged crime. Law is well settled by a catena of judgments that (Downloaded on 13/10/2020 at 08:38:43 PM) (15 of 16) [CRLA-74/2015] circumstance of blood stained recovery can, at best, be used to corroborate substantive evidence. As we have already held that there is no substantive evidence to connect the accused Hari Ram with the crime, the blood stained recoveries and the FSL Report (Ex.P/64) are inconsequent for drawing an inference of guilt against him.
11. As an upshot of the above discussion, we are of the firm opinion that the chain of circumstances portrayed by the prosecution so as to bring home the guilt of the accused is not complete in all aspects. Manifestly, once the ocular testimony is taken out from consideration, the prosecution case would rest totally on circumstantial evidence and in such a situation, unless the chain of circumstances is complete, the conviction cannot be based thereupon.
12. In wake of the discussion made hereinabove, we believe that the findings recorded by the learned trial court in the impugned Judgment for holding the accused appellants guilty of murdering Satyanarayan are not based on a sound appreciation of evidence available on record and hence, cannot be affirmed.
13. Accordingly, the appeal deserves to be and is hereby allowed. The impugned Judgment dated 20.10.2014 passed by the learned Additional Sessions Judge No.3, Chittorgarh in Sessions Case No.50/2014 is hereby quashed and set aside. The appellants (1) Hariram S/o Shri Ambalal Ji and (2) Smt. Deubai W/o Late Shri Satyanarayan are acquitted of the charges. Appellant Hariram is in custody and shall be released from prison forthwith if not (Downloaded on 13/10/2020 at 08:38:43 PM) (16 of 16) [CRLA-74/2015] wanted in any other case. Appellant Smt. Deubai is on bail. She need not surrender and her bail bonds are discharged.
14. 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.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 appellants shall appear before the Supreme Court.
15. Record be returned to the trial court forthwith.
(KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J
5-Tikam/ Devesh/-
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