Rajasthan High Court - Jaipur
State Of Rajasthan vs Sheoji @ Shivjilal S/O Bhanwarlal B/C ... on 24 August, 2023
Author: Pankaj Bhandari
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:18908-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 98/2018
Meghraj, S/o Shri Shivdayal, aged about 33 years, R/o Village
Devpura, Tehsil Niwai, District Tonk, Raj. (Presently confined in
Central Jail, Ajmer)
----Accused-Appellant
Versus
State Of Rajasthan
----Respondent
Connected With D.B. Criminal Appeal (Db) No. 99/2018
1. Sheoji @ Shivji Lal S/o Bhanwar Lal, R/o Bassi, Police Station Baroni, District Tonk, Raj. Accused Is Confined Central Jail, Ajmer.
2. Mukesh S/o Jagdish, R/o Jhilai, Police Newai, District Tonk, Raj. Accused Is Confined In Central Jail, Ajmer.
----Appellants Versus State Of Rajasthan Through PP.
----Respondent D.B. Criminal Appeal (Sb) No. 239/2018 Surgyan S/o Ramniwas, R/o Near Kali Ka Bag, Newai, Tehsil Newai, Distt. Tonk Raj.. Accused/ Appellant In Confined To District Jail, Tonk
----Appellant Versus State Of Rajasthan Through PP.
----Respondent D.B. Criminal Appeal (Db) No. 186/2022 State Of Rajasthan, Through P.P.
----Appellant Versus
1. Sheoji @ Shivjilal S/o Bhanwarlal, R/o Bassi Police Station Baroni, Distt. Tonk.
2. Jagdish S/o Harnath, R/o Bassi, Police Station Baroni, Distt. (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (2 of 19) [CRLAD-98/2018] Tonk.
3. Surgyan S/o Ramniwas, R/o Near Kali Ka Bag, Niwai, Distt.
Tonk (Raj.)
4. Rameshwar S/o Maganlal, R/o Notara Maliyan, Police Station Sultanpur, Distt. Kota (Raj.)
5. Suresh S/o Mohanlal, R/o Notara Maliyan, Police Station Sultanpur, Distt. Kota (Raj.)
6. Bhagwan Sahay S/o Kanaram, R/o Yarlipura, Police Station Shivdaspura, Distt. Jaipur (Raj.)
7. Meghraj S/o Shivdayan, R/o Devpura Tehsil Niwai, Distt.
Tonk (Raj.)
8. Ramdev S/o Harpal, R/o Bassi, Police Station Baroni, Distt.
Tonk (Raj.)
9. Ramjilal S/o Kaluram, R/o Bhanwarsasgar, Police Station Baroni, Distt. Tonk (Raj.)
10. Mukesh S/o Jagdish, R/o Ghilai, Police Station Niwai, Distt.
Tonk.
----Respondents
For Accused/appellant : Mr. R.B. Sharma Ganthola, Adv. in
Criminal Appeal No. 98/2018
Mr. Sandeep Jain, Adv. in Criminal
Appeal No. 99/2018 & 239/2018
For State : Mr. Javed Choudhary, Addl. GA
For Accused/respondent : Mr. Sandeep Jain, Adv.
Mr. Neeraj K Tiwari, Adv.
Mr. R.B. Sharma Ganthola,
Mr. Shyam Bihari Gautam in Criminal
Appeal No. 186/2022
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
Reserved on 17/08/2023
Pronounced on 24/08/2023
(Per Mr. Pankaj Bhandari, J)
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[2023:RJ-JP:18908-DB] (3 of 19) [CRLAD-98/2018]
1. Accused/appellant- Meghraj has filed Criminal Appeal No.98/2018, appellant- Sheoji @ Sheoji Lal and Mukesh have filed Criminal Appeal No.99/2018, appellant- Surgyan has filed Criminal Appeal No.239/2018 against the judgment of conviction and order of sentence dated 23.01.2018 passed by Addl. Sessions Judge, Tonk in Sessions Case No.12/2012, whereby appellant- Meghraj has been acquitted for the offence under Section 323, 120-B, 201 of IPC; appellant- Sheoji and Mukesh have been acquitted for the offence under Section 323, 120-B of IPC and appellant- Surgyan has been acquitted for offence under Section 323, 302 r/w 120-B, 201, 120-B of IPC. Accused-appellants have been convicted and sentenced for the offences as mentioned herein under:-
Accused/appellant- Meghraj:-
(i) Section 364 IPC- 7 years simple imprisonment and a fine of Rs.5,000/-, in default of payment of fine, to further undergo two months simple imprisonment.
(ii) Section 302 IPC- Life imprisonment and a fine of Rs.10,000/-, in default of payment of fine, to further undergo three months simple imprisonment.
Accused/appellant- Sheoji and Mukesh:-
(i) Section 364 IPC- 7 years simple imprisonment and a fine of Rs.5,000/-, in default of payment of fine, to further undergo two months simple imprisonment.
(ii) Section 302 IPC- Life imprisonment and a fine of Rs.10,000/-, in default of payment of fine, to further undergo three months simple imprisonment.(Downloaded on 11/11/2023 at 07:29:51 PM)
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(iii) Section 201 IPC- 3 years simple imprisonment and a fine of Rs.3,000/-, in default of payment of fine, to further undergo one month simple imprisonment.
Accused/appellant- Surgyan:-
(i) Section 364 IPC- 7 years simple imprisonment and a fine of Rs.5,000/-, in default of payment of fine, to further undergo two months simple imprisonment.
All the sentences were directed to run concurrently.
2. State has also preferred Criminal Appeal No.186/2022 against the judgment of conviction and order of sentence dated 23.01.2018, whereby accused/respondents- Sheoji, Jagdish, Surgyan, Rameshwar, Suresh, Bhagwansahay, Meghraj, Ramdev, Ramjilal and Mukesh have been acquitted by the Court below.
3. Succinctly stated the facts of the case are that complainant- Ramkalyan (PW-2), who was the Khalasi of truck driven by the deceased- Jagdish Gurjar, filed a written report (Ex.P.1) on 19.08.2011 at Barauni Police Station with regard to abduction of Jagdish Gurjar from Bharthal Dhaba at Nivai Bypass. On the basis of the said report, police registered FIR No.206/2011 (Ex. P.2) for the offences under Sections 365, 323 and 342 of IPC. Police after due investigating, filed charge-sheet against eleven accused for offence under Sections 364, 365, 323, 302, 201 and 120-B of IPC. In investigation, police arrived at the conclusion that the deceased was abducted from Bharthal crossing. He was taken to Khedi village, where he was beaten to death and then to cover up the incident, his body was chopped and body parts were (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (5 of 19) [CRLAD-98/2018] thrown in Chambal river. Some body parts were found by the villagers in banks of Chambal river at Roteda pulia on 22.08.2011.
4. The case was committed to the Court of Addl. Sessions Judge. Charges were framed against the accused-appellants and other co-accused for offences under Sections 364/ 120-B, 302, 302/120-B, 201, 323, 120-B, 365 IPC. Appellants and other co- accused denied the charges and sought trial. As many as 46 witnesses were examined and 154 documents were exhibited on behalf of the prosecution. Explanation of the accused were recorded under Section 313 Cr.P.C. In defence, 11 witnesses were produced and 35 documents were exhibited. Trial Court after hearing the arguments has convicted the accused-appellants as herein above mentioned and has acquitted the other co-accused. Aggrieved by which accused-appellants have filed Criminal Appeal Nos.98/2018, 99/2018 and 239/2018 and State has also filed Criminal Appeal No.186/2022 aggrieved by the order of acquittal of appellants and other co-accused.
5. It is contended by counsel for the accused-appellants that the fact that one who expired was Jagdish Gurjar, is not established. Prosecution has failed to establish that the body parts recovered from banks of Chambal river near Roteda pulia were that of Jagdish. It is also contended that the blood samples of mother of the deceased is said to have been taken, but, neither there is any recovery memo of the blood sample, nor mother of the deceased and doctor who took blood sample were examined. It is also contended that the FSL report mentions about matching of the teeth of the deceased with that of the blood sample of mother of the deceased, whereas, there is no recovery memo of (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (6 of 19) [CRLAD-98/2018] teeth of the deceased. Further, there is no record that the blood sample of mother as well as teeth of the deceased was kept in the Malkhana.
6. It is also contended that in the FIR, name of only Sheojiram was mentioned and complainant- Ramkalyan (PW-2) in his evidence has stated that he was knowing the name of other accused at the time of lodging of FIR. It is argued that no reason or justification has been given for not mentioning the name of other persons who have abducted the deceased. It is contended that an iron rod was recovered at the instance of Meghraj vide Ex.P-54 and one bamboo stick is said to have been recovered at the instance of Mukesh vide Ex.P-42. There is no recovery at the instance of Sheoji and Surgyan. It is contended that the recovery also does not link the accused with the alleged offence as there were no marks of blood stains on the recovered articles and the recovered articles were not sent for FSL. It is contended that there is no independent witness to the incident. All the witnesses are related witnesses. Recovery witnesses are also planted. It is also contended that the material witnesses have turned hostile and the only evidence is of the related witnesses.
7. It is also contended that as per the prosecution story, the incident took place at three places. The first place is Bharthal Choraha from where Jagdish was allegedly kidnapped, the second place is at a distance of 150-200 meters and the third place is 250 kms. away from where allegedly the deceased was chopped and the body parts were found. It is contended that the prosecution has produced witnesses PW-2 (Ramkalyan), PW-7 (Ramesh Chand Gurjar) and PW-15 (Madholal) for the place from where Jagdish (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (7 of 19) [CRLAD-98/2018] was kidnapped i.e. Bharthal Choraha. Prosecution has produced Dev Narayan (PW-6) and Badri Narayan (PW-23) who are allegedly witnesses for the second site where Jagdish was beaten. With regard to the place, where the body parts were found, prosecution has produced PW-3 (Ramvilas) and PW-34 (Pappu).
8. It is contended that none of these witnesses are reliable and the trial Court has erred in believing the statement of these witnesses who are related to the deceased. It is contended that the statement of PW-2 (Ramkalyan) is not supported by the statement of PW-15 (Madholal). As per PW-2, they stopped at Bharthal Choraha at the kiosk of Madholal, where the incident took place, however, Madholal has denied about the same. It is contended that the evidence of PW-7 (Ramesh Chand) who is also stated to be at Bharthal Choraha is not reliable as this witness has admitted that he did not disclosed about this incident to anyone and narrated for the first time to the police after three days. He has also stated that he was having a mobile, still he did not inform the police which also makes this witness unreliable.
9. Learned Addl. Government Advocate appearing for the State has opposed the appeals filed by the accused-appellants. It is contended that it is established that the deceased was murdered and his body parts were thrown in the Chambal river from the banks of which, the body parts were recovered. It is also contended that blood sample of mother of the deceased was obtained and as per the DNA report, the same was matching with the DNA obtained from the teeth of the deceased. It is also contended that there are witnesses who have seen the accused abducting the deceased and their evidence is reliable and the (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (8 of 19) [CRLAD-98/2018] Court below has not erred in convicting the accused-appellants. It is also contended that learned trial Court has erred in acquitting the co-accused.
10. Learned Addl. GA has placed reliance on State of West Bengal vs. Mir Mohd. Omar & Ors (2000)8 SCC 382 and Wazir Khan vs. State of Uttarakhand, Criminal Appeal No.1922-23/2017, decided by the Apex Court on 02.08.2023.
11. We have considered the contentions and have perused the record.
12. For disposal of the appeals and for arriving at the conclusion that the offence of murder has been committed, it is necessary to establish that the body parts which were recovered, were that of Jagdish. For establishing the same, on behalf of prosecution, DNA report (Ex.P-117) has been produced. As per result of the examination, Male DNA profile of source of exhibit No.1 (Tooth sample- Packet marked X) and DNA profile of exhibit No.2 (blood sample of Smt. Panchi Devi- Packet Marked 1) is matching at all the alleles which are amplified as shown in table No.1. The Forensic expert has concluded that the DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit No.1 (Tooth sample- Packet marked X) is the biological son of Smt. Panchi Devi.
13. The contention of counsel for the accused is that there is no recovery memo of the blood sample of Smt. Panchi Devi and that she and doctor who took blood sample of Smt. Panchi Devi were not examined before the trial Court. The only evidence with regard to taking of blood sample of Smt. Panchi Devi is of the Investigating Officer who has stated that he had obtained the (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (9 of 19) [CRLAD-98/2018] blood sample of Panchi Devi and had refrigerated the same. Admittedly, there is no recovery memo of the blood sample of Panchi Devi. As per the Malkhana Register also, blood sample was not deposited in the Malkhana. If the version of investigating officer is to be believed, the sample was refrigerated, but as to whether the same was kept in a sealed condition, is not established from the evidence. It is evident that vide Exhibit P-58, partially burnt bones and burnt bones of the deceased were recovered and were kept in Packet Marked- X. The said seizure memo is stated to be made on 02.09.2011 at 06:55 pm. However, in the DNA report, extracts from teeth of the deceased is said to have been taken, whereas, in the seizure memo (Ex.P-58), there is no mention about the seizure of teeth. Thus, it is not established beyond reasonable doubt that the body parts which were recovered were of Jagdish.
14. The next question which arises for consideration is whether the remnants of bones which were recovered is actually the same, that were disposed of by the police authorities. In this regard, PW-27 (Dinesh), PW-29 (Lokesh) and PW-30 (Kan Singh) are relevant witnesses, who have deposed that the place from where the remnants of bones were recovered, the dead bodies of nearby villagers are also cremated. PW-27 has also admitted that except villagers of Roteda village, other nearby villagers also perform their last rituals at the same place from where the bones were recovered. A panchnama was prepared by the police vide Ex.P-71. As per the panchnama, the body parts were burnt near the river bank. PW-24 (Peeru Shah)- a panchnama witness has stated that the panchanama was prepared on 22.08.2011. He has (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (10 of 19) [CRLAD-98/2018] admitted that the age of the deceased was assessed between 25- 30 years and he was also of the view that death took place a week ago. Similar is the evidence of PW-30 (Kan Singh), who has also deposed that the doctor who conducted the postmortem was of the view that the body parts were 7-8 days old and that the age of the deceased was between 25-30 years. This witness has also stated that the body parts which were recovered were burnt on the earth mound. He has also stated that funeral of other villagers is also done at same place. PW-29 (Lokesh) who is also a witness to the panchnama has stated that the panchnama was prepared on 22.08.2011 at 10:00 am. The age of the deceased was between 25-30 years and the remnants were seven days old. He has also stated that the body parts were completely decomposed.
15. PW-31 (Dr. Rajesh Kumar Meena) who conducted the postmortem has stated that all the body parts were decomposed and so, no DNA sample could be drawn. If we co-relate the date of abduction with the date of recovery of the remnants, it is evident that as per PW-2 (Ramkalyan), the incident of abduction took place on 19.08.2011 at 3:00-04:00 pm and the postmortem was conducted & panchnama was prepared on 22.08.2011 at 10:00 am. The place from where the deceased is said to have been abducted is at a distance of more than 250 kms. from the place where the body parts were recovered, meaning thereby that the body parts which were recovered and were said to be seven days old, were not that of Jagdish.
16. The Apex Court in Prakash Nishad Vs. State of Maharasthra MANU/SC/0613/2023 observed as under:- (Downloaded on 11/11/2023 at 07:29:51 PM)
[2023:RJ-JP:18908-DB] (11 of 19) [CRLAD-98/2018] "62. The document also lays emphasis on the chain of custody being maintained. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document "which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim's or suspect's name and the brief description of the item."
17. As far as matching of the DNA extracted from the teeth of the deceased with that of the blood sample of Panchi Devi- mother of the deceased is concerned, suffice to say that as per the seizure memo (Ex.P-58), no teeth is said to have been recovered. There is no seizure memo of the blood sample of Panchi Devi, neither Panchi Devi has been examined to establish that her blood sample was taken, nor the doctor who took the sample has been examined. There is no entry of deposition of blood sample of Panchi Devi in the Malkhana register and surprisingly, as per the investigating officer, the same was kept in a refrigerator. As to who took the blood sample of Panchi Devi to whom the blood sample was given is also not evident from perusal of the entire material on record. To establish a link between the DNA obtained from the teeth which was sent for DNA analysis and the blood sample of mother of the deceased, it was necessary for the (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (12 of 19) [CRLAD-98/2018] prosecution to establish that the blood sample was taken, it was kept in the Malkhana and was sent to FSL. Since there is no seizure memo of the blood sample of Panchi Devi and no entry in the malkhana register and there is no evidence of Panchi Devi and the doctor who took the blood sample, it is not established that the blood sample of Panchi Devi was drawn and sent to FSL.
18. In view of the above, prosecution has failed to establish that the body parts recovered were that of Jagdish, the blood sample which was sent for analysis was that of Panchi Devi and thus, the DNA report should not have been relied upon by the learned trial Court for convicting the accused for offence under Section 302 IPC.
19. As far as offence of abduction is concerned, as per the prosecution, there are three witnesses- PW-2, PW-7 and PW-15 who have seen Jagdish being abducted. PW-2 (Ramkalyan) has stated that they stopped at the kiosk of Madholal for having tea and at that time, Sheoji and other co-accused abducted Jagdish. PW-15 (Madholal) is the kiosk owner who has turned hostile and has clearly stated that no incident of abduction took place in his presence. PW-2 (Ramkalyan) who was the Khalasi is not a reliable witness for the very reason that in his examination-in-chief, he has stated that he was also beaten by Sheoji, Meghraj, Mukesh, Surgyan, Ramjilal and Damodar, however, no medical examination was conducted to establish the same. As per this witness, the incident took place between 03:00-04:00 pm at Bharthal Choraha. He has also stated that he was having a mobile, but surprisingly he did not inform the police about the incident, more particularly when the abductee was the owner of the truck in which he was a (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (13 of 19) [CRLAD-98/2018] Khalasi (helper). He has admitted that Ramesh Chand Gurjar (PW-
7) had told him the names of co-accused- Sheoji, Meghraj and Mukesh as the person who abducted Jagdish, however, in the FIR lodged by PW-2 (Ramkalyan) at 06:48 pm, he has only named Sheojiram and has specifically stated that he was not knowing the other persons who were in the Jeep. However, this witness, when he was examined in the Court, has named all the other co- accused. The other witness who has witnessed the incident of abduction is PW-7 (Ramesh Chand Gurjar). The conduct of this witness is also unnatural as he has stated that he was having a mobile, but he also did not inform the police about abduction. He has also stated that after the incident, he went to his house and slept and that he did not narrate this incident to anyone for three days and narrate the same for the first time to the police after three days.
20. PW-25 (Raja) who was the head constable and Malkhana incharge has admitted in his cross-examination that he has not signed the Malkhana register (Ex.P-72) for the Malkhana which was deposited on 31.08.2011 and 02.09.2011. He has also admitted that the signature of SHO who deposited the articles is also not available at Ex.P.72. He has also admitted that as to who took the articles to the FSL is also not mentioned in the Malkhana register. He has also admitted that page No.1-3 of Malkhana register do not bear his signatures. It is not established that as to under whose authority the bones of the deceased were deposited in the Malkhana and as to who took them to the FSL is also not mentioned in the Malkhana register. Thus, the prosecution has (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (14 of 19) [CRLAD-98/2018] failed to establish that the burnt bones which were seized were the same which were deposited in the Malkhana.
21. As per the prosecution version, after the deceased was abducted from Bharthal Choraha, at a distance of 200 meters from that place, he was seen by PW-6 (Dev Narain) and PW-23 (Badri Narayan). PW-6 (Dev Narain) has stated that Jeep- RJ 25 C 1357 came from Bharthal Choraha towards Niwai. The jeep stopped at some distance. Two persons alighted from the jeep, who were using abusive languages. They informed this witness that they have abducted Jagdish driver, as he had abducted the daughter of Sheojiram. In the examination in chief, this witness has deposed that the person who alighted from the jeep was Surgyan and Damodar. However, in cross-examination this witness has stated that he cannot recognise Damodar and Surgyan. He has also stated that he has not seen the persons who were sitting in the jeep. He has clearly stated that he and Badri Narayan both did not go near the jeep.
22. PW-23 (Badri Narayan) has deposed before the Court that there was break-down of their truck at 03:00-04:00 pm. A commander jeep came from Tonk and it stopped ahead of their truck. There was some commotion in the jeep. He has also stated that two persons alighted from the jeep and returned towards Tonk and then deposed, towards Bharthal choraha and when they were crossing the place where the truck was parked, they informed the witness that they have abducted Jagdish Gurjar. In cross-examination, this witness has stated that deceased- Jagdish was related to him. He has also admitted that after receiving the (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (15 of 19) [CRLAD-98/2018] information from Damodar and Surgyan, he did not make any efforts to catch them or report the matter to the police.
23. PW-6 (Dev Narain) & PW-23 (Badri Narayan) have deposed that they saw a jeep coming from Bharthal choraha towards Niwai and that the jeep stopped near the place where their truck was parked, however, they have not stated that they have seen the persons who were sitting in the jeep. PW-6 (Dev Narain) has stated in his cross-examination that he cannot recognise Damodar and Surgyan. He was having a mobile and even after having the knowledge that Jagdish has been abducted by many persons, he did not intimate the police. PW-23 (Badri Narayan) who was related to the deceased also did not intimate the police. Thus, both these witnesses are chance witnesses and are not reliable. It is also pertinent to note that the fact that Surgyan & Damodar informed Badri Narayan (PW-23) that they have abducted Jagdish was not mentioned in the police statement of Badri Narayan Ex.D-9. Badri Narayan has stated that he has informed the police, but as to why police has not mentioned this fact in his statement recorded under Section 161 Cr.P.C., he does not know.
24. The next place as per the prosecution story is at a distance of 250 kms. from Bharthal Choraha, known as Khedi village. As per PW-3 (Ramvilas), a jeep was standing near the road side, one person was sitting in the jeep and five persons were beating one person. All the persons put that person in the jeep and went towards Khedi village. This witness has stated that he alongwith Pappu went to the police after 15-16 days of the incident. In cross-examination, this witness has admitted that (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (16 of 19) [CRLAD-98/2018] daughter of his brothers has been married in the family of deceased- Jagdish. He has also stated that he had not narrated this incident to anyone before giving statement to the police. As per this witness, Pappu was with him on the motorcycle. Pappu (PW-34) has identified only Ramdev as one of the person who was assaulting the deceased. This witness was declared hostile by the prosecution. It is pertinent to note that Ramdev whom this witness has identified in the Court, has been acquitted by the trial Court. Both these witnesses are chance witness. Statement of Ramdev before the police was recorded on 05.09.2011 i.e. after a lapse of 16 days of the date of the alleged abduction. This is highly improbable that after abduction and after travelling at a distance of 250 kms., the deceased was again beaten near Khedi village.
25. As per the prosecution version, Ex.P-51 is the site plan of place of incident of Chambal river, wherein at Mark- XX, it is mentioned that the body was cut into pieces; at Mark- XXX, clothes of the deceased was burnt; at Mark- X place, parts of the body were thrown into Chambal river, XXXX was the place where jeep was parked. It is to be noted that no remnants of the clothes were recovered from place marked- XXX, no blood or body pieces were recovered from place marked- XX and there were no signs of deceased being amputed at place marked- XX and X. The prosecution has thus, hypothetically created a fiction account of the entire incident. It is also important to note that as per the prosecution, the entire incident took place on 19.08.2011. The body was recovered on 22.08.2011 from near Roteda pulia. As per the panchnama, the body was more than seven days old. (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (17 of 19) [CRLAD-98/2018]
26. Admittedly, there are no witnesses who have seen the jeep parked or have seen the deceased being cut into pieces and his clothes being disposed. Nothing has been recovered from the place to establish that the offence was committed at the place pointed out by the police in Ex.P-51. Site plan (Ex.P-51) was prepared by the police on 19.12.2013 at the behest of the statement given by the accused under Section 27 of Evidence Act. Since there is no discovery of fact in Ex.P-51, the same cannot be read against the accused. The other information on the basis of which Ex.P-49 was prepared on 19.12.2013 i.e. after a lapse of more than two years cannot be read in evidence against the accused for the very reason that there is no discovery of fact in pursuance to the information given under Section 27 of Evidence Act. The learned Trial Court has convicted the accused solely on the basis of matching of the DNA and the learned Addl. Government Advocate has also supported the judgment on the ground that DNA report is a scientific report and conviction can be based solely on the basis of the DNA report.
27. We are unable to accept the arguments advanced by learned Addl. Government Advocate for the very reason that DNA report itself is under a cloud of doubt, as the place from where the bones were recovered was the place which was a common funeral ground. Only bones were recovered, whereas, what was sent for DNA analysis, was teeth of the deceased. They were proposed to be matched with the blood sample of Panchi Devi, however, there is no recovery memo of the blood sample of Panchi Devi, no doctor has been produced to establish that he had drawn the blood sample of Panchi Devi, the blood sample was not deposited (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (18 of 19) [CRLAD-98/2018] in the Malkhana, even Panchi Devi was not produced before the Court to establish that her blood samples were taken by the doctor.
28. Thus, in light of the judgment of Prakash Nishad vs. State of Maharashtra (supra), the DNA report could not have been made sole basis for convicting the accused. The chain of collection of the sample is thus not established in this case. Therefore, the DNA report in this case, cannot be read against the accused- appellants coupled with the fact that Panchi Devi and the doctor who took the sample have not been examined before the Court. With what we have deliberated above, it is evident that it is not established that Jagdish was abducted and murdered by the accused-appellants. Hence, Criminal Appeal Nos.98/2018, 99/2018 and 239/2018 filed by the accused-appellants deserves to be and are accordingly, allowed. Judgment of conviction and order of sentence dated 23.01.2018 qua accused-appellants is quashed and set aside. Appellants are acquitted of all the charges levelled against them. The accused-appellants- Meghraj, Sheoji and Mukesh are in jail, they shall be released forthwith, if not required in any other case. The accused- Surgyan is on bail, his bail bonds stand cancelled.
29. As far as Criminal Appeal No.186/2022 filed by the State is concerned, since prosecution has not been able to establish that Jagdish was abducted and murdered by the present appellants, State has also failed to establish that the body parts which were recovered belonged to Jagdish, thus acquittal of other co-accused by learned Trial Court does not call for any (Downloaded on 11/11/2023 at 07:29:51 PM) [2023:RJ-JP:18908-DB] (19 of 19) [CRLAD-98/2018] interference and the appeal filed by the State deserves to be and is accordingly, dismissed.
30. Accused/appellants- Meghraj, Sheoji, Mukesh and Surgyan are directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
31. Record of the learned trial Court be sent back forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
CHANDAN /
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