Rajasthan High Court - Jodhpur
Kalu Ram vs State on 26 April, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
JUDGMENT
D.B.Cr. Appeal No.490/2009 Kalu Ram Vs. State of Rajasthan Date of judgment :: 26th April,2016 PRESENT HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Mr. Rajesh Saharan for Mr. Hemant Jain, for the appellant. Mr. JPS Chouodhary, Public Prosecutor <><><> By the Court (Per Hon'ble Mr. Justice G.K. Vyas):
In this cr. appeal filed under Section 374 Cr.P.C. the accused appellant Kalu Ram is challenging validity of the judgment dated 27.6.2009 passed by the learned Addl. District & Sessions Judge (FT), Anoopgarh, Suratgarh in Sessions Case No.03/2009 (18/2005) by which the accused appellant was convicted for offence under Section 302 IPC and sentence of life imprisonment with fine of Rs.1000/- was imposed against him and in default of payment of fine to further undergo one year simple imprisonment. 2
According to the facts of the case upon the written complaint (Ex.P/1) filed by the complainant Bhagirath S/o Dema Ram under his thumb impression, the FIR no.239/2005 was registered against the accused appellant under Section 302 IPC. The complainant stated in the FIR that I am resident of ward no.17 of Dungargarh, but at present working with my family upon kiln of one Vimal Bagari at Chak 7-SGM. I and my family members are living in the temporary hut near the kiln. Yesterday, i.e., on 14.5.2005 in the morning at 6'O Clock I alongwith my son Karan and wife went upon kiln for work and came back in evening at 6'O Clock.
In the night at about 9.00 pm Kalu Ram son of my brother Bhanwara Ram came to my house and asked my son Karan to with him while saying that we are coming back after some time. According to the complainant, his son did not come back till midnight, therefore, the complainant went to search Karan with the other son Raju. During search when they reached in the agricultural field of Khayali Meghwal they saw that his son was lying dead near water course (Khala) having blood upon whole body. The complainant alleged in the FIR that Kalu Ram is having enmity with my son Karan because before 7 months, the daughter of one Sabir, resident of Bikawas was abducted by 3 Kalu Ram and the said information was given by his son Karan to Sabir, upon which, action was taken against Kalu Ram. The complainant having suspicion alleged that Kalu Ram might have killed my son Karan, therefore, action may be taken against him.
Upon aforesaid complaint filed by the complainant at 7.15 am on 15.5.2005 at Police Station Suratgarh, the police registered FIR and immediately came on spot and prepared Panchanama in front of five persons Harnek Singh, Babu Lal, Khayali Ram, Hari Ram and Bhagirath which is Ex.P/2 on 15.5.2005 at about 10.30 am.
Vide Ex.P/3 the situation of the dead body of Karan was recorded on spot and body was taken to the hospital for post mortem. The post mortem was conducted at Primary Health Center, Suratgarh at about 2.00 pm on 15.5.2005 by the Dr. Manoj Agarwal (PW--10) and, thereafter, dead body of Karan was handed over to his father PW-1 Bhagirath vide Ex.P/5. From place of occurrence the blood stained soil and simple soil were taken in possession and sealed on spot itself. The blood stained shirt of cream colour and read colour Baniyan and pent of cocacola colour having blood were taken in possession vide Ex.P/10 and sealed on spot at 4.15 pm. The accused appellant was arrested on 15.5.2005 vide Ex.P/11 at 4.45 pm. Vide Ex.p/2 the cloths of the accused appellant 4 having blood upon them were taken in possession. During investigation, the knife was recovered vide Ex.p/13 upon information given by the accused appellant under Section 27 of the Evidence Act. In the recovery memo of knife (Ex.P/13) it is observed in the memo that blood stained knife has been recovered from open way under one pipeline and it was sent to the FSL for examination along with other articles. In the investigation, statement of prosecution witnesses were recorded and after completion of investigation, the police filed challan against the accused appellant in the court of Addl. Chief Judicial Magistrate, Suratgarh from where case was committed to the court of Addl. Sessions Judge, Sri Ganganagar, Camp Suratgarh, from where it was transferred to the court of Addl. District & Sessions Judge (FT), Anoopgarh, Headquarter Suratgarh. The learned trial court after framing charge under Section 302 IPC granted an opportunity to the prosecution to lead evidence. To prove the prosecution case, statements of 15 witnesses were recorded and 34 documents were exhibited in the trial.
In defence 2 documents (Ex.D/1 statement of Bhagirath and Ex.D/2 statement of Raju Ram) were exhibited.
The learned trial court after recording evidence of prosecution recorded the statement of the accused 5 appellant under Section 313 Cr.P.C. in which the accused appellant stated that due to property dispute in between my father and uncle Bhagirath he has been falsely implicated in this case. No oral evidence is produced by the appellant in defence.
The learned trial court after providing an opportunity of hearing to the parties finally heard the arguments and vide judgment dated 27.6.2009 convicted the accused appellant for offence under Section 302 IPC and passed the sentence for life imprisonment with fine of Rs.1000/-. In this appeal, the accused appellant is challenging validity impugned judgment.
Learned counsel for the appellant vehemently argued that there is no eye witness in this case, the whole prosecution case is based upon the evidence of "last seen"
but except the author of the FIR, Bhagirath and his son Raju, there is no other witness to prove the fact of last seen. The other witnesses of recovery and last seen turned hostile and did not support the prosecution case. While inviting attention towards statements of PW--4 Mohan Ram, PW--5 Ganga Ram, PW--6 Harnek Singh, PW--7 Dungar Rama nd PW--8 Babu Lal it is submitted that all these witnesses of recovery of knife and investigation turned hostile and did not support the prosecution case. While emphasizing upon the fact that independent witnesses of 6 last seen PW-4, Mohanram, and PW--5 Ganga Ram turned hostile and did not support the prosecution allegation that in the night, they saw deceased Karan with accused Kalu Ram. According to the learned counsel for the appellant PW-4, Mohan Ram and PW--5 Ganga Ram were independent witnesses, whereas PW--1 Bhagirath and PW-- 2 Raju are father and brother of the deceased, are interested witnesses, but the learned trial court while relying upon their testimony of interested witnesses, accepted the evidence of last seen, but the finding for last seen based upon the testimony of the interested witnesses is totally contrary to basic principle of law.
With regard to evidence of motive it is submitted that as per prosecution case accused appellant was having enmity with deceased because some time ago one Rubina, daughter of Sabir was abducted by the accused, Kalu Ram and this fact was disclosed by the deceased, Karan, to Sabir and he was caught, but such plea of enmity with the deceased is totally baseless because neither Sabir, father of Rubina, produced before the court nor any FIR was registered for the said incident, therefore, the story relied upon to prove motive by the prosecution so as to indulge accused appellant with the crime is far from the truth. The entire case of prosecution is based upon the evidence of last seen and concocted story of motive and recovery of knife at 7 the instance of accused appellant but all the independent witnesses turned hostile and not supported the prosecution case, therefore, in view of the judgment rendered by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, the finding of conviction of the accused appellant for offence under Section 302 IPC is not sustainable in law. Learned counsel for the appellant vehemently argued that the prosecution has completely failed to prove its case beyond reasonable doubt on the basis of unproved circumstantial evidence, last seen and recovery, therefore, the judgment impugned deserves to be quashed.
Lastly it is argued that as per the basic principle of law if prosecution case is based upon the circumstantial evidence of 'last seen' and recovery then it has to be proved beyond reasonable doubt, but here in this case, the prosecution has failed to prove its case beyond reasonable doubt, which is evident from the fact that all the independent witnesses of recovery and proceedings turned hostile, so also, independent witnesses of last seen, PW-4, Mohan Ram, and PW--5 Ganga Ram turned hostile, therefore, it is not proper for the trial court to convict the accused appellant for the alleged offence of murder without any trustworthy evidence. The learned counsel for the appellant relied upon the following judgments: 8
(i) Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622;
(ii) Jaharlal Das Vs. State of Orissa reported in AIR 1991 SC 1388
(iii) Niazam Vs. State of Rajasthan AIR 2015 SC 3430.
In view of above, it is submitted that judgment impugned may kindly be quashed.
Per contra, learned Public Prosecutor submits that the arguments advanced by the learned counsel for the appellant are not having any force of law because blood stained knife was recovered as per the information given by the accused appellant Kalu Ram under Section 27 of the Evidence Act and this fact is corroborated from the report of FSL (Ex.P/29) in which an opinion is given by the FSL that blood of 'B' Group was found upon the cloths of deceased and upon knife, therefore, even if two motbirs turned hostile and did not support the prosecution case, the learned trial court has rightly gave finding that prosecution has proved its case beyond reasonable doubt on the basis of evidence of last seen, recovery of knife and cloths.
To prove the fact of last seen, learned Public Prosecutor submits that there is trustworthy statement of PW--1 Bhagirath, author of the FIR and PW--2 Raju, 9 brother of the deceased that deceased went with Kalu Ram at 9'O Clock on 14.5.2005 from their home, but did not come back till 1.30 in the night, thereafter, upon search within short time his body was found in the agricultural field. Therefore, there is no question to disbelieve the testimony of these two witnesses to accept the evidence of last seen. The learned trial court after taking into consideration entire facts and evidence on record reached to the conclusion that the prosecution has proved its case beyond doubt on the basis of evidence of last seen and recovery of blood stained cloths and knife as per information of the accused appellant so also upon these articles blood of 'B' group was found as per the FSL report (Ex.P/29). It is also argued that there is direct allegation of complainant Bhagirath that accused appellant Kalu Ram kidnapped one Rubina D/o Sabir 7 months back and information of kidnapping by the accused appellant was given by the deceased Karan to the father Sabir. The accused appellant was having motive to commit murder of the deceased, Karan.
Learned Public Prosecutor vehemently argued that although most of the prosecution witnesses turned hostile and did not support the prosecution case but other circumstantial evidence available on record loudly speaks that prosecution has proved its case beyond reasonable 10 doubt, so as to hold accused appellant guilty for offence under Section 302 IPC, therefore, this appeal may kindly be dismissed.
After hearing the learned Counsel for the parties, we have minutely perused the entire evidence on record. As per settled principle of law to prove the case on circumstantial evidence, the prosecution is required to lead trustworthy and reliable evidence. There must be a chain of evidence so as not to leave any reasonable ground for arriving at the conclusion consistent with innocence of the accused and must show that in all human probabilities, act must have been done by the accused. In the present case, there is no eye witness to prove the prosecution case. The whole case is based upon circumstantial evidence of last seen and recovery of blood stained clothes and knife upon assessment of entire evidence, following question arose for consideration, which reads as under:-
"Whether on the basis of circumstantial evidence of last seen coupled with allegation of motive and recovery of blood stained weapon knife and clothes, the finding given by the learned trial court is sustainable in law or not?"
First of all, we have considered the evidence of "last seen". To prove the fact of last seen, three witnesses were includ- ed in the list of witnesses in the charge shet, filed in the Court namely PW-1-Bhagirath, father of the deceased, PW- 11 2-Raju, brother of the deceased and independent witnesses PW-5- Gangaram. Out of these three witnesses, the PW-1- Bhagirath and PW-2-Raju brother of the deceased stated in their statements that deceased Karan went out with ac- cused-appellant-Kaluram at 9'O Clock. PW-2 Raju, brother of deceased stated that his brother Karan went alongwith accused appellant Kaluram in the evening while asking to my father that they are coming back after sometime. The PW-5-Gangaram turned hostile and did not support the prosecution case even though he was produced in the trial as witness of last seen because in his statement recorded under Section 161 Cr.P.C. (Ex.P/9) it was stated by him that in between night of 14th- 15th May, 2005 at about 11.00 P.M. he saw the deceased Karan and Kaluram and asked them why you are sitting here, then Kalu replied that we are brothers, sitting here only for gossiping, but the said witness turned hostile and did not corroborate the allegation before the court. For assessing truthfulness of testimony PW-1 Bhagirath and PW-2 Raju for the evidence of last seen, it is necessary to observe that as per statement of PW
--1 Bhagirath, the accused-appellant was having enmity with his son, deceased Karan because seven months back accused Kaluram kidnapped Rubina daughter of one Sabir Khan and this fact was disclosed by him to the father, Sabir Khan. In our opinion, if the PW-1 Bhagirath was having 12 knowledge about enmity of deceased Karan with accused- appellant Kaluram, then why he has permitted his son to go with Kaluram in the night. The witness Bhagirath, father of " ह ज र अद लत the deceased stated in his statement that "म मलज म क लर म क नत ह। मर लडक क न म करण थ । आ स कर ब 9 म ह पहल क" ब त ह# । मसलम न$ क" लडक" क मलज म क लर म भग कर ल गय थ ज सक न म रब)न थ । उसक ब प क न प स बबर ख - थ । स बबर क करण न बत य थ कक तर लडक" क क लर म ल गय ह# । उसक क लर म न करण पर र- ज श ब -ध ल । उस ददन सबह स त ब तक क म करत रह। स त ब घर पर आकर र द3 प न) बन य । करण व र वग#र सब घर पर थ। कर ब 9 ब क समय ह गय परनत करण न र 3 नह - ख ई। 9 ब क ल आय और करण क दखकर ब ल कक आ घमन चलत ह# । क9र उसक इनत र करत करत 1:30 क समय ह गय । करण नह - आय "
" उस The witness PW 2 Raju stated before the Court that: "हम ददन श म क 7 ब तक क म करत रह थ। म, मर भ ई करण, मर पपत व म त सभ) क म कर रह थ। क लर म आय और करण क कह कक थ ड) दर घमन क ललए चल । त मर पपत न पछ कक कह@ रह ह । त क ल न कह कक थ ड) ह 13 दर मA आ यAग। क ल व करण एक-डढ ब तक घर व पपस नह - आए त हम करण क" तल श करन ननकल।"
The witness PW-2 Raju did not disclose the time. More so, there is major difference in between the statement of PW-1 Bhagirath and PW-2 Raju. The independent witness PW-5 Gangaram of last seen turned hostile and did not support the prosecution case.
Upon assessment of testimony of these three witnesses, we are of the view that no father will permit his son to go with a person with whom enmity exists if he is aware about the enmity but here in this case, the PW-1 Bhagirath alleged that he was knowing that Kaluram is having enmity with his son because one girl Rubina was kidnapped by the accused-appellant, Kaluram, and this fact was disclosed by his son, Karan, to her father Sabir Khan.
It is also apparent from the record that neither Rubina nor Sabir Khan is produced before the Court to prove the story of kidnapping and enmity, therefore, how it can be presumed that the allegation of prosecution witnesses PW-1 Bhagirath and PW-2 Raju, with regard to enmity and last seen having any corroboration by independent evidence, oral or documentary. It is settled principle of law that for conviction on circumstantial evidence, there must be transparent evidence so as to arrive with the finding that accused is guilty for committing offence of murder, but here 14 in this case, evidence of last seen has been given by the interested witnesses PW-1 Bhagirath and PW-2-Raju, which is not supported by any other independent evidence of Sabir Khan and Rubina. The independent witness of last seen PW- 5 Gangaram turned hostile and did not support the prosecution case, therefore, findings of trial court based upon the evidence of last seen produced by the prosecution become seriously doubtful.
With regard to evidence of motive, we have examined the entire evidence. Admittedly, as per statement of complainant, the accused-appellant Kaluram was having enmity with Karan because he has disclosed the fact of kidnapping of one girl Rubina to her father Sabir Khan, but to prove this fact neither Sabir Khan nor Rubina are produced as witnesses in the Court, in spite of the fact, that Sabir Khan was thankful to deceased Karan because he has disclosed the fact. It is also worthwhile to observe that if above allegation is correct, then obviously for kidnapping of Rubina, FIR must have been registered, but no evidence of FIR is produced before the Court to prove the allegation of motive. A specific question was also put to the witness PW-- 1 Bhagirath in the cross examination about FIR. The witness PW-1 Bhagirath stated that no case was lodged by Sabir Khan nor his son Karan went with Sabir Khan to the Police Station. Meaning thereby, there is no oral or documentary 15 evidence on record about registration of FIR by Sabir Khan for kidnapping of her daughter Rubina nor has he been examined in the trial as witness. There is no other evidence on record to prove motive of accused-appellant Kaluram with the deceased Karan, to accept the statement of Bhagirath (PW-1) about the enmity in between Kaluram and deceased. We cannot lose sight of the fact that how PW-1 Bhagirath father of the deceased permitted his son to go with Kaluram in the night at about 9.00 P.M. upon asking by him. Knowingly well that accused is having enmity with his son.
The learned Public Prosecutor submits that there is relationship in between Kaluram and Bhagirath family, therefore, probably due to relationship PW-1 Bhagirath permitted his son to go with the accused Kaluram, but in our opinion, the story of motive stated by the witness PW-1 Bhagirath has not been proved by leading trustworthy evidence, more so no reliable or trustworthy evidence is produced before the Court to prove the fact of motive, which is necessary for offence under Section 302 IPC.
Upon discussion of above statements, we are of the view, that story narrated by the witness PW-1 Bhagirath author of FIR for motive is not supported by any other evidence. The only suspicion was raised by the witness Bhagirath (PW-1) on the basis of so called allegation of 16 motive which is not proved, therefore, we have no hesitation to hold that prosecution has failed to prove the fact of motive in this case.
With regard to evidence of recovery of blood stained knife and clothes, first of all, we have perused the statement of two witnesses of prosecution before whom the recovery of clothes and knife was made. The witness Harnek Singh (PW-6) and Babulal (PW-8) are the witnesses of investigation. Their signatures are appearing upon (Ex.- P/2) Panchayatnama, (Ex.-P/3), the condition memo of deceased, site plan (Ex.-P/4) and Ex.P/4(A) the memo to hand over the dead body, (Ex.-P/5) and (Ex. P/6) whereby the blood stained soil and ordinary soil was taken in possession from the place of occurrence, the arrest memo of accused -appellant (Ex. P/11), the recovery memo of clothes, which accused was wearing (Ex.-P/10) and (Ex.- P/12), the recovery of knife (Ex.-P/13) and (Ex.-P/14) site plan of the place of recovery of knife. Upon all above documents, the signature of two witnesses PW-6-Harnek Singh and PW-8 Babulal are appearing upon all the material, but both the witnesses turned hostile and did not support the whole prosecution case, although they admit that upon these documents their signatures are in existence but they gave explanation in cross-examination that all the signatures were taken by the police upon plain papers in the 17 police station.
The above facts clearly reveal that recovery of blood stained knife from open place and clothes become doubtful because two independent witnesses Harnek Singh (PW--6) and Babu Lal (PW--8) of investigation turned hostile and did not support the prosecution case. It is true that these articles were sent for chemical examination to the FSL and as per FSL report (Ex.-P/29), it was reported that human blood of group "B" was found upon these articles, but that evidence cannot be accepted because record of articles are not proved. In our opinion to prove the case on circumstantial evidence, there must be complete chain of circumstances but here in this case, prosecution has failed to prove the fact of last seen, motive by leading trustworthy or independent evidence. Both the witnesses PW-1 Bhagirath and PW-2 Raju are father and brother of deceased and their testimony is not supported by any independent witness. The knife and clothes which are said to be recovered in front of two independent witnesses PW- 6-Harnek Singh and PW-8-Babulal but both the witnesses turned hostile and said that they put their signatures upon blank papers. It is also worthwhile to observe that signatures of these two witnesses are appearing in all the documents, either of recovery or information and preparation of site plan and even handing over the dead 18 body to the father Bhagirath.
We have perused the information given by the accused- appellant under Section 27 of Evidence Act vide (Ex. P/13). In the memo it is observed that accused- appellant gave following information:
"मकदम अनव न सदर मA गगरफत र शद मलज म क लर म पत भ-वर र म नत र# गर उम 20 वरK ननव स) व डK No. 17 डग
- रगढ न सव#चछ स मझ I/O क इपPल द "एक च क मन चक 7 SGM र ह मA पवमल ब गड) ई3 भट स थ ड) दर पजRम ददश मA कचच र सत पर रसल मA दब ई गई बड) प ईप क अनदर छप रख ह# म आपक स थ चलकर बत सकत हS।"
9दK इपPल पवध)वत मनतKब कर अलभयक क पढकर सन ई सन समझ सह म न ल मA अपन हसत कर कर रह ह# ।"
Upon perusal of above information, it is very much clear that there is no disclosure by the accused-appellant Kaluram that the knife which is used by him can be recovered from the place stated by him. Whether such type of information can be treated to be an information for the weapon, which is said to be used for murder of deceased? In our opinion "No".
In our opinion, if recovery of so called knife is not proved by both the independent witnesses then it is not safe to accept the prosecution case for the purpose of accepting the evidence to hold accused appellant guilty. It is true, as per FSL report, blood was found upon knife and clothes, but in absence of independent witnesses of 19 recovery of knife and cloths, the accused-appellant cannot be held guilty for offence of murder because prosecution is required to prove its case beyond reasonable doubt, if case is based upon circumstantial evidence then evidence must be trustworthy and transparent to convict the accused.
In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 the following parameters/guidelines are laid down by the Hon'ble Supreme Court, which reads as under:-
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a 20 conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." Similarly in the case of Jaharlal Das reported in AIR 1991 SC page 1388, the following adjudication is made by the Hon'ble Supreme Court for convicting any accused upon circumstantial evidence, which reads as under:
" (i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
Recently, in the case of Nizam VS. State of Rajasthan reported in AIR 2015 SC 3430, the Hon'ble Supreme Court while considering the theory of last seen gave the following verdict, which reads as under:
21
"20. Normally, this Court will not interfere in exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage of justice, this Court will certainly interfere. The "last seen theory" seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed."
We have examined the entire evidence available on record in the light of aforesaid judgments. In our opinion, the whole prosecution case is based upon circumstantial evidence but from the evidence on record no inference of guilt can be drawn in absence of complete chain of circumstances. Right from the beginning the prosecution has failed to prove its case beyond reasonable doubt. The fact of last seen is not proved, motive and recovery of articles are not proved, therefore, only on the basis of statement of Investigating Officer PW-12 Narendra Sharma, it cannot be presumed that prosecution has proved its case for the purpose of recovery of knife and clothes, upon which blood of "B" Group was found in the FSL report. It is also 22 important to observe that PW--12 Narendra Sharma admitted in the cross-examination that "यह ब त सह ह# कक मलज म क पपत भ-वरल ल व मत V क क पपत भ ग)रथ क आपस मA आन न नह थ । यह ब त सह ह# कक भ ग)रथ व भ-वरल ल क बबच क ई प#नV तक समपनत क लकर पवव द अनसध -न क दXर न स मन नह - आय ।"
Therefore, in the light of aforesaid adjudication made by the Hon'ble Supreme Court, we hold that on the basis of circumstantial evidence available on record, the prosecution has failed to prove its case beyond reasonable doubts. The learned trial Court has committed an error to hold accused- appellant guilty for offence of murder because the trial court has relied upon the circumstantial evidence of two interested witnesses PW-1-Bhagirath and PW-2-Raju, father and brother of the deceased and Investigating Officer only, in spite of the fact there is no corroboration of their allegation by the independent witnesses.
The learned trial court has failed to consider entire evidence of last seen in right perspective because none of the circumstances relied upon by the prosecution and accepted by the court is pointing only to the guilt of the appellant and no other inference. In this case more than one inference can be drawn on the basis of above discussion, therefore, the accused appellant is entitled for benefit of doubt.23
Consequently, this Criminal appeal is hereby allowed, the judgment of conviction and sentence dated 27.6.2009 passed by the learned Addl. District and Sessions Judge (FT) Anoopgarh, Headquarter Suratgarh in Sessions Case No. 3/2009 (18/2005) is hereby quashed and the accused appellant Kaluram is hereby acquitted from the charges leveled against him under Section 302 IPC. The accused appellant Kaluram be enlarged forthwith, if not needed in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount each, 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 Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(DEEPAK MAHESHWAR),J. (GOPAL KRISHAN VYAS),J. Ishan/cpgoyal/-