Rajasthan High Court - Jodhpur
Phoosa Ram & Anr vs State on 20 March, 2013
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T
Phoosa Ram & Anr. vs. State of Rajasthan
D.B.Criminal Appeal No.117/2010
against the judgment dated 25.2.2010
passed by Additional Sessions Judge
(Fast Track) No.2, Jodhpur, in
Sessions Case No.7/2006
Date of Judgment :: 20th March, 2013
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE BANWARI LAL SHARMA
Mr. J.S.Choudhary, Senior Advocate assisted by
Mr. Tarun Dhaka, for the appellants.
Mr. K.R.Bishnoi, Public Prosecutor, for the State.
Mr. Sukhdev Vyas]
Mr. Narpat Singh] for the complainant.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
REPORTABLE This appeal is directed against the judgment and order dated 25.2.2010 passed by learned Additional Sessions Judge (fast Track) No.2, Jodhpur, in Sessions Case No.7/2006. By the judgment and order aforesaid learned trial court convicted and sentenced the accused appellants as under :-
u/S.302 IPC - Imprisonment for life with a fine of Rs.5000/- and in default of payment of fine to further undergo six months rigorous imprisonment. -2- u/S.364 IPC - Ten years' rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo two months rigorous imprisonment. u/S.201 IPC - Seven years rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo two months rigorous imprisonment.
The factual matrix giving rise to the present appeal is that at 07:30 PM on 24.9.2005, a written report was submitted by Shri Rajuram (PW-7) to the Station House Officer, Police Station Khedapa with assertion that his brother Deeparam son of Natharam, resident of Bawdi, aged 35 years was taken on motorcycle by Phoosa Ram on 22.9.2005 at about 07:00 PM from the hotel of Shriram and this movement was seen by Heeraram, Lumbaram, Shantilal and Ghanshyam. Subsequent thereto he saw him while passing through Anwana crossing. At about 10:30 PM Premaram saw Deeparam sitting behind his hotel with Phoosa Ram and Baburam. No whereabouts of his brother were noticed thereafter.
On basis of the report aforesaid, a case was registered and investigation commenced. Alleging intentional slow pace with the investigation, the informant Rajuram preferred a Habeas Corpus Petition (DB Habeas Corpus Petition No.6124/2005) before this Court, wherein after recording dissatisfaction with the investigation made, a direction was given to the Inspector General of Police, Jodhpur Range, Jodhpur to personally look into the -3- matter and ensure adequate progress. The investigation of the case thereafter was handed over to C.I.D (Criminal Branch), Jodhpur by the Police Station Khedapa on 3.3.2006.
The investigating agency, during the course of investigation, unearthed a tubewell on 21.3.2006 at the agricultural field under the joint tenancy of the accused appellants with certain other persons. Necessary report of such unearthing was prepared as Ex.P/3. The tubewell aforesaid was subjected to high air pressure cleaning on 24.5.2006 and as per the prosecution that resulted into flushing out of several bones of human body, clothes of Shri Deeparam, his pen, wallet and certain documents including three electricity bills. A video recording of process of unearthing of tubewell on 24.3.2006 and its cleaning by way of putting air pressure was also made.
After completion of investigation a police report was filed before the court of learned Judicial Magistrate, First Class, Pipar City, and the case being session triable, was committed to the court of Sessions, Jodhpur. The case then was transferred to the court of Additional Sessions Judge (Fast Track) No.2, Jodhpur. After hearing, the court framed charge against the accused appellants for commission of offences punishable under Sections 364, 302 or 302/34 and 201 Indian Penal Code, on denial of the same trial commenced as desired.
To establish the charge, the prosecution made a chain of circumstances with following links:- -4-
- Deceased Deeparam was seen on 22.9.2005 at about 07:00 PM at the tea shop of Shriram by Sarva Shri Shantilal (PW-
1), Heeraram (PW-2), Shriram (PW-3), Ghanshyam (PW-4), Lumbaram (PW-5), Manglaram (PW-6) and Baluram (PW-9);
- Rajuram (PW-7), brother of deceased Deeparam, saw him with accused at Bawdi Bus Stand in between 9-10 PM on 22.9.2005;
- At the hotel of Shri Premaram, Premaram saw deceased Deeparam in company of the accused persons at about 10:00 PM;
- Deceased Deeparam was lastly seen in company of the accused persons on way by Bhuraram (PW-13) at about 11:00 PM on 22.9.2005;
- Verification of the place of occurrence by the accused persons;
- Recovery of weapon of offence (lathis) on basis of disclosure made by the accused persons;
- Extra judicial confession made by the accused persons before Mandroopram (PW-11) and Narainram (PW-12);
- Unearthing of a tubewell nearby to the place of occurrence as verified by the accused persons; -5-
- Cleaning of tubewell on 24.5.2006 resulting into flushing out of human bones, clothes of deceased Deeparam, his pen, wallet, other documents including an electricity bill; and
- Availability of motive to kill Deeparam.
The circumstances aforesaid were substantiated with the aid of the evidence adduced by the witnesses PW-1 to PW-30, several documents exhibited during the course of trial and 18 articles were marked. Necessary details of all the documents exhibited and the articles marked are as under:-
DOCUMENTS :-
Ex.P/1 - Site plan of the road in front of Hotel Shriram;
Ex.P/2 - Written report;
Ex.P/3 - Site plan of place of occurrence;
Ex.P/4 - Cleaning report of tubewell;
Ex.P/5 - Report of tubewell (place of occurrence);
Ex.P/6 - Report of identification of documents of
Deeparam;
Ex.P/7 - Recovery memo of lathi and pieces of iron;
Ex.P/8 - Site plan of recovery place;
Ex.P/9 - Panchnama;
Ex.P/10 - Recovery memo of video cassette; Ex.P/11 - Recovery memo of sample of 'mitti'; Ex.P/12 - Recovery memo of bones of deceased Deeparam; Ex.P/13 - Report of handing over of bones; Ex.P/14 - Arrest memo of accused Phoosa Ram; Ex.P/15 - Arrest memo of accused Baburam; Ex.P/16 - Recovery memo of motorcycle; Ex.P/17 - Jamabandi;
Ex.P/18 - Trace map;-6-
Ex.P/19 - Challan;
Ex.P/20 - Postmortem report;
Ex.P/21 - First Information Report;
Ex.P/22 - Report of Rojnamcha;
Ex.P/28 to Ex.P/38 - Police statements of Sarva Shri Sohanram, Shriram, Mahendra, Sadique, Mohanram, Gunesharam, Ramchandra, Banshilal, Ranjeet, Bhikamchand, Chain Singh, Hariram;
Ex.P/30 - Malkhana register;
Ex.P/31, 32, 33 and 34 - Receipts;
Ex.P/39 and 40 - Information given under Section 27 of the Indian Evidence Act by accused Baburam and Phoosa Ram; Ex.P/41 - Identification of accused Phoosa Ram and Baburam; Ex.P/42 - Information given under Section 27 of the Indian Evidence Act by accused Baburam;
Ex.P/43 - Recovery of lathi and site plan of recovery; Ex.P/44 - Information given under Section 27 of the Indian Evidence Act by accused Phoosa Ram;
Ex.P/45 - Recovery of lathi and site plan of recovery;] Ex.P/46 - Information given under Section 27 of the Indian Evidence Act by accused Phoosa Ram;
Ex.P/41 to Ex.P/43 - Forwarding letter; Ex.P/44 to Ex.P/46 - Copy of transmission letters; Ex.P/47 - Letter;
Ex.P/48 - Forwarding letter.
ARTICLES :-
Article-1 - White bag;
Article-2 - Shirt;
Article-3 - Handkerchief;
Article-4 - Torn pieces of banyan;
Article-5 - Five pieces of torn towel; Article-6 - Sealed packet;
Article-7 - 30 pieces of bones which came out from tubewell at the time of air pressure;
Article-8 - One bag containing above 30 pieces of bones; Article-9 - All articles;
Article-10 - Shirt which came out from tubewell at the time of air pressure;
Article-11 - One cotton bag containing one small and one big piece of iron;-7-
Article-12 - One sealed cotton bag;
Article-13 - Wooden pieces with sand; Article-14 - Sample of sand taken near from tubewell which was taken by the police and put in a plastic bag and sealed in a cotton bag;
Article-15 - Video cassette;
Article-16 to Article-18 Lathis etc.
Opportunity was accorded to the accused
appellants to explain the adverse and incriminating
circumstances available against them in prosecution
evidence. While pleading innocence, the accused termed the adverse circumstances false with explanation that Sohanram is their cousin brother and they are having some dispute about the land with him, thus, he has implicated them in the criminal case falsely. Certain documents Ex.D/1 to Ex.D/22 were exhibited in defence.
Learned trial court after considering the entire evidence available on record held the accused appellants guilty for the charges framed, thus, recorded conviction and awarded sentence.
The findings arrived by the trial court are challenged in appeal by questioning reliability of evidence adduced by the prosecution to establish the circumstances and framing chain thereof.
It is asserted by counsel for the appellants that as a matter of fact the death of Deeparam itself is under thick clouds and no material is available on record to arrive at a definite conclusion in this regard, therefore, -8- prosecution of the accused appellants for the offence punishable under Section 302 Indian Penal Code is bad. According to counsel for the accused appellants the edifice of the prosecution case is founded on concocted and false evidence, thus, is fractured and no conviction can be settled on basis of such fractured chain of circumstances. BY spreading the entire evidence adduced by the prosecution, learned counsel for the appellants pointed out several facts to substantiate the argument pertaining to missing links in the chain of circumstances and to establish reasonable doubt in accepting prosecution case.
Learned Public Prosecutor on the other hand has made all efforts to defend the conviction recorded and sentence awarded.
We examined the entire evidence in lucid, including examination of videography made by the
investigating agency relating to unearthing of the tubewell and its cleaning.
The circumstance relating to availability of Deeparam with accused persons at the shop of Shriram and at Bawdi Bus Stand -
The conviction of the accused appellants as already stated is based on a chain of circumstances and the first circumstance relied upon by the prosecution is availability of Deeparam and accused Phoosa Ram at the shop of Shriram and then at Bawdi Bus Station in the evening of 22.9.2005.-9-
As per Shri Shantilal (PW-1), his wife was Sarpanch of the Gram Panchayat, therefore, to get a dispute relating to hurdle coming on the way to Phoosa Ram's land resolved, Deeparam and Phoosa Ram came to him. As per this witness, Phoosa Ram told him about hindrance coming in his way due to allotment of a piece of land to one Shri Kishanji. On having no positive response, Phoosa Ram left the place on motorcycle and Deeparam went to the shop of Babu Bhai with Shantilal (PW-1). From the shop of Babu Bhai, Shantilal and Deeparam went to the shop of Shriram Mali where Rooparam, Shriram and few other persons were already sitting. At that time Phoosa Ram was standing at the other end of road with his motorcycle. This witness (PW-1) then went to purchase vegetables, on return neither Deeparam nor Phoosa Ram were seen there. In cross examination this witness stated that Deeparam was sitting at the shop of Shriram, whereas Phoosa Ram was at the distance of about 50-60 feet, at other end of the road. He did not saw Phoosa Ram and Deeparam together and this witness was also not knowing that whether Deeparam left the shop of Shriram alone or in company of any other person.
This witness further stated that the fact about availability of Deeparam and Phoosa Ram at the places mentioned above was not disclosed by him to any person prior to making statement before the investigating agency on 25.9.2005.
Shri Heeraram (PW-2) stated that in the evening of 22.9.2005 he came to the shop of Shriram where Shri -10- Shantilal, Lumbaram, Bhojaram, Baluram and Deeparam were already sitting. Phoosa Ram at that time came from Nagaur side on his scooter and by turning that towards Nagaur he stayed and called Deeparam. On asking, Deeparam stated that he was going to Phoosa Ram being called. Deeparam and Phoosa Ram were having some conversation, but this witness failed to hear the contents, however, he heard that Phoosa Ram was telling Deeparam to accompany him and then both moved from the place on scooter. In cross examination this witness accepted that the shop of Shriram is situated at Bawdi Bus Station on Jodhpur-Nagaur highway and the open space between the shop and the border of 'taar' road is about 40-50 feet. He also accepted availability of heavy rush and traffic at the Bus Stand. On being confronted with his police statement (Ex.D/1), this witness stated that he told the investigating agency about coming of Phoosa Ram on scooter and then moving of Deeparam with him, but the same was not noted down for the reasons best known to the police team.
PW-3 Shriram stated that his shop is situated at Bawdi Bus Station, where about 50 other shops are also in operation. On 22.9.2005 he was at his shop where in the evening hours Deeparam, Shantilal, Baluram, Lumbaram, Heeraram and Bhojaram were also sitting and were having tea-snacks. At about 06:45 - 07:00 PM Phoosa Ram came on motorcycle and on hearing a call given Deeparam went to him. Deeparam then proceeded with him towards Nagaur. At that time Deeparam was wearing checked shirt and grey trouser. This witness stated that the facts above mentioned -11- were disclosed by him to the police team, but appears to have not been reduced in writing in his police statement (Ex.D/3) for the reasons best known to the police team. This witness also disclosed that his wife was treating Deeparam as her brother, as such Deeparam was like his brother-in-law. This witness further stated that Phoosa Ram was standing at distance, therefore, what conversation took place between him and Deeparam was not possible to be heard.
As per PW-4 Ghanshyam, son of PW-3 Shriram, on 22.9.2007 at about 07:00 PM Deeparam came to his shop and told to prepare tea. At that time Lumbaram, Baluram and Shantilal were also sitting there. At that time Phoosa Ram came on his red motorcycle and on calling, Deeparam went to him and then they proceeded towards Nagaur.
PW-5 Lumbaram stated that on 22.9.2005 at about 06:30 - 07:00 PM he was sitting at the hotel of Shriram on Bawdi Bus Station alongwith Deeparam, Shantilal, Shriram, Heeraram, Baluram, Zabbar Teli and was having tea. At that time Phoosa Ram came on motorcycle and called Deeparam. Deeparam then proceeded with Phoosa Ram on his motorcycle towards Nagaur road. During cross examination, this witness stated that he saw Deeparam and Phoosa Ram standing close to the motorcycle but not proceeding from the spot together. As per this witness, Deeparam and Phoosa Ram were talking quite cordially and no dispute between them was visible.
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PW-7 Rajuram is elder brother of Deeparam. As per this witness, on 22.9.2005 his brother Deeparam went to Bawdi Bus Stand to bring milk and when he went to the Bus Stand to have "Bidi", he saw Deeparam going with Phoosa Ram on his motorcycle. At that time this witness made a loud call, but the same was not heard by Phoosa Ram and Deeparam. This witness then went to the house of his sister Tulsi and stayed there for whole night. In next morning on asking, children of Deeparam informed that their father did not return to home in night. In evening this witness went to Bus Stand to make necessary inquiry about Deeparam where he came to know that in the last evening Deeparam proceeded with Phoosa Ram on motorcycle. This witness then lodged a report (Ex.P/2) at Police Station Khedapa. As per this witness, his nephew (son of sister) Sohanram went to Phoosa Ram to know the whereabouts of Deeparam and asked him about Deeparam, but no satisfactory reply was given. As per this witness, Sohanram also asked about existence of a tubewell that was not visible in the fields of Phoosa Ram. This witness also stated that he preferred a Habeas Corpus petition before the Rajasthan High Court to have a direction to produce Deeparam and during pendency of that the investigation of the criminal case was transferred to CID (CB). This witness also stated that his brother-in-law Pancharam purchased agriculture land in village Netra and after his death the same was mutated in the name of his nephews. Phoosa Ram was claiming his share in the land aforesaid and because of that a dispute was existing. -13-
The prosecution evidence discussed above mainly pertains to availability of Phoosa Ram and Deeparam at Bawdi Bus Stand in the evening of 22.9.2005 and their movement therefrom. The extract of the evidence discussed above is that on 22.9.2005 Deeparam and Phoosa Ram came to Shri Shantilal and then Phoosa Ram independently moved to his way. Shantilal with Deeparam went to Bawdi Bus Stand and had tea with him and certain other persons. While sitting at the shop of Shriram, Phoosa Ram returned on his motorcycle and made a call for Deeparam. Deeparam went to Phoosa Ram and then they proceeded towards Nagaur town.
Learned counsel for the appellants made efforts to satisfy us that as a matter of fact whatever stated by the prosecution witnesses in this regard is not correct and the entire evidence adduced appears to be implanted. We have minutely examined the statements made by the prosecution witnesses. True it is, some discrepancy exists in the statements given by the witnesses discussed above before the court with their versions noted down by the investigating agency as per provisions of Section 161 Cr.P.C., but those are not to the extent of disbelieving the entire evidence.
PW-1 Shri Shantilal in very definite terms stated that Phoosa Ram and Deeparam came to him on 22.9.2005 and subsequent thereto he went to Bawdi Bus Stand with Deeparam. While sitting at the shop, Phoosa Ram came on his motorcycle and called Deeparam. Suffice to mention here that the statement of this witness as per Section 161 -14- Cr.P.C. was drawn by the investigating agency on 25.9.2005, the day next to filing of missing report. We do not find any reason to disbelieve this witness, who is otherwise an independent person.
PW-3 Shriram also with all confidence stated that Deeparam came to his shop in the evening of 22.9.2005 and had tea with Shantilal, Baluram, Lumbaram, Heeraram and Bhojaram. At that time, Phoosa Ram came on his motorcycle and called Deeparam. This witness also disclosed all necessary facts to the investigating agency on 25.9.2005 itself. As such, the evidence available on record is sufficient to arrive at the conclusion that accused Phoosa Ram and deceased Deeparam were at the shop of Shriram situated near to Bawdi Bus Stand and further proceeded on motorcycle towards Nagaur in the evening of 22.9.2005. The circumstance relating to availability of Deeparam with Phoosa Ram and Baburam at the shop of Premaram -
The second circumstance on which prosecution relied and accepted by the court below is availability of Deeparam, Baburam and Phoosa Ram behind the shop of PW-8 Premaram in the night of 22.9.2005 at about 10:00 PM.
To substantiate this circumstance, the prosecution relied upon the evidence adduced by PW-8
Premaram, who stated that he is having a tea shop close to the gate of electricity power house in village Bawdi. On 22.9.2005 at about 09:15 PM Phoosa Ram and Deeparam came to -15- his shop on motorcycle. After a lapse of 15-20 minutes Baburam also came there and purchased a bundle of 'bidis' and match box. He then asked about Phoosa Ram who was sitting behind the shop. Baburam then went to Phoosa Ram and Deeparam and all the three sat there till this witness closed the shop at about 10:00 - 10:15 PM.
Learned counsel for the appellants submits that this witness disclosed the fact about seeing of the accused persons with Deeparam to Rajuram (PW-7), but no assertion in this regard was made in the first information report submitted at Police Station Khedapa. According to learned counsel, as a matter of fact nothing was stated by this witness to Rajuram and whatever evidence relates to him, that was planted by the prosecution to have a link in a chain of circumstances.
We do not find any merit in the argument advanced. The investigating agency on 25.9.2005 i.e. a day after lodging of first information report drawn statement of this witness as per provisions of Section 161 Cr.P.C., wherein he stated that Deeparam and Phoosa Ram came to his shop on motorcycle and subsequent thereto at about 09:30 PM Baburam also came and purchased a bundle of 'bidis' and he also joined Phoosa Ram and Deeparam. The evidence extended by this witness cannot be ignored merely on the count that Rajuram did not mention this fact in the missing report. The information given contends the facts pertaining to missing of Deeparam and on that basis investigation was initiated. Every minute detail is not suppose to be given -16- in missing report. The second circumstance i.e. Of availability of Deeparam (deceased) in the company of accused Phoosa Ram and Baburam behind the shop of Premaram also, thus, stands established.
The circumstance of last seen by Bhuraram -
The third and a very important circumstance on which prosecution relied and the trial court accepted, is relating to last seen of Deeparam in the company of accused persons by PW-13 Bhuraram at about 11:00 PM on 22.9.2005.
PW-13 Bhuraram stated that on 22.9.2005 he was at his home situated on the way to Jaientara from Bawdi. In the night at about 11:15 PM, when he was taking care of his 'bajri' yield from cows,he heard noise of motorcycle and voice of Deeparam from that. He saw Deeparam riding in between Phoosa Ram and Baburam on the motorcycle aforesaid. The motorcycle was of red colour and driven by Baburam. This witness also stated that Phoosa Ram was wearing white shirt and white 'dhoti', whereas Baburam was in red T-Shirt and black pant. As per this witness he saw the motorcycle and also heard voice of Deeparam from the distance of about 50-60 pawandas (one pawanda is equal to 2.5 feet approximately). This witness accepted that no street light facility is available on the path concerned and the motorcycle crossed his agriculture field within a period of a minute. This witness also stated that at the first instance he detailed the facts to the investigating agency at the instance of Mandroopram son of Tejaram and Bhanwaru -17- son of Narainji and if he would have not been insisted by Mandroopram and Bhanwarlal, he would have not gone to police to get his knowledge of facts recorded.
Learned counsel for the accused appellants emphasised that in normal course no person could have seen the persons riding on a motorbike passing through a road from the distance of 50-60 pawandas i.e. equivalent to about 150-180 feet. It is further submitted that if Bhuraram (PW-13) saw anything then he would have reported the same to the police authorities or at least to the family members of Deeparam, looking to the fact that he was knowing Deeparam, who was missing since 22.9.2005. This witness at the first instance disclosed the fact witnessed by him on 1.10.2005 and that too not voluntarily but at the instance of Mandroopram and Bhanwarlal, who are relatives of Deeparam.
We have minutely examined the statements made by this witness. He is essentially a truck driver and is aware with the movement speed of different vehicles on road, including motorcycle. This witness saw the motorcycle on which Deeparam, Phoosa Ram and Baburam were riding and disclosed colour of the motorcycle, clothes worn by the accused persons, but nothing is said about the clothes worn by Deeparam. The distance between the motorcycle and this witness was of at least 150 feet and the motorcycle crossed his field within a minute, as such, the occasion for this witness to see the motorcycle and the person sitting thereon would have been for few seconds only. No medium of -18- light has been disclosed by this witness that made possible for him to see the persons sitting on motorcycle, observing clothes worn by them and even colour of motorcycle in night at about 11:15 PM and that too from the distance of about 150 feet. It is also strange that this witness did not choose to say anything to the family members of Deeparam about his last seen in night at about 11:15 PM with Phoosa Ram and Baburam. In normal human behaviour, passing over of such information to the persons concerned is quite obvious. This witness even on asking in cross examination failed to satisfy as to why the fact about last seen of Deeparam in company of accused persons was not disclosed by him to the family members of Deeparam and to the investigating agency. Even on 1.10.2005 the facts concerned were not disclosed by him to the investigating agency voluntarily, but on calling by Mandroopram and Bhanwarlal.
Having considered the evidence adduced by this witness, we are having lurking doubt in believing the same. We are of the view that in the event of non-availability of adequate light, in normal course, a person cannot see and recognise three persons sitting on a running motorcycle from the distance of about 150 feet. It is really strange that this witness not only recognise the persons riding on the motorcycle, but also detailed the wearings of the accused persons. At the same time, nothing has been said by him about the wearings of deceased Deeparam, who too was riding on the same motorcycle. If this witness was in position to see the clothes of accused persons, then he must had been in position to see the wearings of Deeparam -19- too. In such circumstances, we do not find ourselves satisfied to accept the evidence adduced by this witness. The circumstance of last seen as advanced by the prosecution, thus, fails.
The verification of the place of commission of crime and recovery of lathis -
The next circumstance on which prosecution relied is verification of the place of occurrence and recovery of weapon of offence (lathis) at the instance of accused persons.
The accused persons were arrested on 25.5.2006 i.e. after a lapse of more than eight months from the date of alleged incident. Prior to verification of place of offence the investigating agency discovered a tubewell in the month of March, 2006 and also cleaned that on 28.5.2006. As such, even prior to arrest of the accused persons the place of occurrence was in knowledge of the investigating agency, therefore, this circumstance is not of much consequence. Similarly, the recovery of lathis after a lapse of eight months from the roof of open 'baada' (an outer shade) of accused persons' house is of not much consequence. Suffice to mention here that the lathis so recovered were sent for their serological examination to the Forensic Science Laboratory, but no blood stains were found thereon. As a matter of fact no material is available on record to connect the lathis with crime in question. -20- The extra judicial confession -
The next circumstance relied upon by the trial court is the extra judicial confession made by the accused persons before PW-11 Mandroopram and PW-12 Narainram.
PW-11 Mandroopram is in relation of Sohanram being father of the wife of Sohanram's nephew. Sohanram, Phoosa Ram and Baburam are his cousin brothers too. As per this witness, one day when he was sitting on the shop of Babu Gosai with Manglaram, issue relating to missing of Deeparam was discussed. In the evening of same day, Phoosa Ram and Baburam met him on way and stated that CID is chasing them as they committed some error, but the error accepted was not disclosed. This witness also stated that above mentioned fact was disclosed by him to the investigating agency on 22.5.2006, when the CID people came to his house. This witness did not disclose the date on which accused persons came to him or even other necessary particulars of the day. He failed to satisfy even the occasion available to the accused persons to make a confession before him. As per this witness the officer of the investigating agency came to his house to record his statement and he at his own did not disclose to anyone the fact about the confession made by the accused persons. The Investigating Officer PW-29 Shri Vijay Shankar Sharma simply stated that the statement of Mandroopram during the course of investigation was recorded by him and i.e. Ex.D/7. He has not given any reason as to why and on what basis he reached to Mandroopram while making investigation. -21-
It is well established principle of evidence in criminal jurisprudence that extra judicial confession being weak evidence by itself, should be examined with greater care and caution. The court must ensure that such confession inspire confidence and is corroborated by other sound evidence. It should always be made voluntarily and should be truthful. In the case in hand, as per Mandroopram (PW-11) both the accused persons met him on way and stated that some error has been committed by them, but no particulars of such error were given. The incident is said to be of the same day when the issue of the missing of Deeparam was discussed. On minute examination of the statement made by this witness, we are having our own doubts in accepting the same. We failed to understand that why this witness kept mum for long spell in disclosing the fact concerned. The fact concerned was disclosed by him at the first instance to the investigating agency, but nothing is available on record that how the investigating agency had any clue about meeting of this witness to the accused persons on way. The witness has also not disclosed the degree of thickness of relations with accused persons that they chose to disclose a very important fact to him.
An ancillary circumstance is based on the statement of PW-12 Narainram, who stated that Bhanwararam son of Kesaram came to him on a day and stated that he heard that Deeparam shall be disposed of in few days. This statement was made by Bhanwararam 4-5 days earlier to missing of Deeparam. The statement given by this witness is -22- also of no consequence being vague and also being based on hearsay. Shri Bhanwararam, who stated about "disposal" of Deeparam to this witness, has not been produced in evidence. As such, this link sought to be added in the chain of circumstances is also not acceptable. Discovery of tubewell and its cleaning -
The most important circumstance on that prosecution heavily relied is unearthing of a tubewell
close to the house of accused persons and flushing out of human bones from it on cleaning. Before discussing this circumstance in lucid, it shall be appropriate to recapitulate certain necessary facts which are as follows:-
1.On 3.1.2006, an effort was made to search a tubewell, but was not found;
2.The accused persons never disclosed availability of the tubewell that was unearthed by the investigating agency;
3.The investigation of the case was handed over to the CID (Crime Branch) on 3.3.2006 and the investigating officer of the case was Shri Pramod Sharma (PW-30);
4.At the instance of Shri Sohanram (PW-10), the investigating agency again made search and found a tubewell at the distance of about 60 feet from the residential house of the accused persons. -23-
5.A report Ex.P/3 of such unearthing of tubewell was drawn;
6.Videography of such unearthing was also made by Shri Arjunram (PW-25) under instructions of Investigating Officer.
7.After search of tubewell on 21.3.2006, that was put for cleaning on 24.5.2006.
8.A videography of this process too was made by Shri Arjunram;
9.As per the prosecution, while cleaning the tubewell, certain parts of human bones, a wallet, clothes of Deeparam, three electricity bills including a bill in the name of Deeparam, a pen etc. came out and the same were seized in accordance with law;
10.The bones were sent for medical examination and then to Forensic Science Laboratory. Deoxyribo Nucleic Acid (DNA) test of the bones, soft tissues and hair was made.
11.The electricity bills came out from the tubewell were in full leaf and the writings thereon were legible;
12.The video recording made on 21.3.2006 and 24.5.2006 were placed on record as Article-16 i.e. only one cassette, thus, it appears that either the same cassette was used for making videography on both the days or videographies were made separately and then both were copied in one -24- cassette i.e. Article-16. Suffice to mention that the cassette (Article-16) was displayed before us on 14.2.2013 through an electronic device operated by Shri Shankar Lal Prajapat son of Shri Bhanwar Lal Prajapat, resident of Manak Chowk, Jodhpur.
Learned counsel for the appellants has dissected each and every event noted above with assertion that the tubewell which was unearthed on 21.3.2006 remained open uptil its cleaning and the bones and other articles drained out during the course of cleaning were implanted by the prosecution.
Learned Public Prosecutor and learned counsel for the complainant, on the other hand urged that whatever evidence adduced by the prosecution is quite definite and is sufficient to record conviction. It is asserted that the conduct of the accused persons by not disclosing the fact about availability of tubewell near their residential house is sufficient to draw adverse inference about their involvement in the crime in question. It is submitted that on 3.1.2006 an effort was made by the investigating agency to search a tubewell on the point indicated by Sohanram, nephew of Deeparam. The site indicated was near the residential house of accused Phoosa Ram. In the agriculture fields of Phoosa Ram two tubewells were found in running position and four tubewells were shown closed being not discharging sufficient water. Sohanram (PW-10) pointed out one more tubewell but Phoosa Ram denied the same. The investigating agency after examining the site arrived at -25- the conclusion that as a matter of fact no sign was available of having tubewell there. Necessary assertions were made in 'rojnamcha' which is available on record as Ex.P/27. PW-27 Shri Hariram, the Investigating Officer at the relevant time, also verified the facts mentioned in Ex.P/27. However, at the subsequent stage a tubewell was found at the same place. As per Section 8 of the Indian Evidence Act, 1872, such conduct of the accused is relevant and that cannot be ignored, if no satisfactory explanation is extended in this regard by the accused persons. The accused persons while tendering explanation as per Section 313 Cr.P.C. have not given any explanation about availability of a tubewell at the place where they denied such availability. This conduct of the accused persons is quite serious and i.e. Certainly an adverse relevant evidence, and is sufficient to infer their involvement in the crime in question, thus, the other circumstances are not require to be examined necessarily.
We are having no doubt that the conduct of an accused prior and subsequent to the incident is a fact relevant, but at the same time it is to be kept in mind that the fundamental principle of criminal jurisprudence is that no innocent should be punished and if there remains any reasonable doubt in the evidence, the benefit of that must be extended to the accused. The courts are supposed to proceed with utmost care while deciding a matter in which Section 8 of the Indian Evidence Act plays a pivotal role. To ensure the doctrine of fair play, the courts, in the cases where direct evidence is not available and -26- circumstances are having ambiguity, should scrutinise evidence beyond reasonable doubt. The non performance of it may cause prejudice to the accused and the possibility of inflicting injury to the fundamental principle of criminal jurisprudence referred above shall be in much more. The cases where the provisions of Section 8 of the Indian Evidence Act are applicable too are no exception in this regard. We are of the considered opinion that each and every circumstance of the case should be examined and should be measured and scaled by keeping in mind all the principles to appreciate evidence, thus, we are examining every necessary fact relevant.
After failure to discover any tubewell at the site pointed out by Shri Sohanram (PW-10), the investigation was handed over to CID (Crime Branch) on 3.3.2006. The investigating agency again made a search of tubewell at the place pointed out by Shri Sohanram. The place so pointed out was at the distance of 60 feet towards south from the residential house of Phoosa Ram and Baburam. In the area of 15 x 15 feet, with same depth, after removing over burden of sand, a point of tubewell was found. The well was connected with electricity cable. Necessary report of excavation and searching of tubewell was drawn by the investigating agency and i.e. available on record as Ex.P/3. As already stated, a videography of this process was made by Shri Arjunram (PW-25). The excavation was made with the aid of Excavator (JCB) operated by Shri Irfan son of Fazar Pathan. Suffice to mention that in document Ex.P/3 a reference of removing sand and -27- discovering a tubewell is given, but nothing is stated about covering its head point. While seeing the video recorded under Article-16 we do not find any kind of sealing of the top head of the well, though in the document Ex.P/4 prepared on 24.5.2006 while starting cleaning of the well a reference of removing welded cover is mentioned. In this document a fact about covering of tubewell on 21st and 22.3.2006 is also given. PW-29 Shri Vijay Shankar Sharma, the Investigating Officer, on 24.5.2006 also stated that on 21st and 22.3.2006 the head top of the tubewell was closed by attaching a casing pipe and that sealing was removed on 24.5.2006.
It is pertinent to note that on 21st and 22.3.2006 Shri Vijay Shankar Sharma was neither the
Investigating Officer nor he was present at the spot. The relevant witness in this regard is PW-30 Shri Pramod Sharma, who stated that with the aid of JCB machine a tubewell point was discovered and videography of entire process was taken, however, nothing has been stated by him about covering the head point of tubewell. As already stated, nothing is mentioned in document Ex.P/3 also about attachment of casing and covering of head top. No such covering was also found in video recording of the process.
After discovery of the tubewell on 21.3.2006, its cleaning was made on 24.5.2006 i.e. after a lapse of about two months and three days. The borewell was cleaned with the aid of boring machine and operators of that were PW-14 Ramchandra and PW-15 Hemendra Sankhla.
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As per PW-14 Ramchandra, he went to clean borewell in an agriculture field near village Bawdi. The well was cleaned by putting casing and providing air pressure. Upto the depth of 200-215 feet the machine moved freely and then a resistant occurred. On exerting more air pressure a cloth came out and then on putting more pressure bone pieces with bad smell came out. A packet then was drained. The borewell was cleaned upto to the depth of 500- 525 feet. As per this witness the bones drained were having the size of ½" to 1". No bone was of larger size and all the bones came out with rubbles. According to this witness he was having 10-15 years of experience of working on boring machine. For making boring a hammer and bit fixed at one end of pressure pipe revolves. The space of about 1"
exists in between the pressure pipe and casing of borewell. This witness further stated that at the site concerned a man named Sohanram and police personnels were present. Other people were standing outside the boundary line.
PW-15 Hemendra Sankhla, the other operator of boring machine, stated that on 23.5.2006 he went to Bawdi to clean a borewell. While cleaning that, on giving high pressure at the depth of 200-225 feet a pant, bones, hair, underwear, pen, diary, ring and two electricity bills came out. The articles came out were identified by Sohanram as belongings of his maternal uncle. A report of the same was drawn and i.e. Ex.P/4. Signatures of this witness were obtained on the document Ex.P/4. In cross examination, this witness stated that on giving high pressure the bones available inside the borewell use to brake and they use to -29- come out in small size of ½" or 1" only. The stones too brakes in particles on giving high pressure through boring machine. This witness was confronted with document Ex.D/13, the statement given by him as per provisions of Section 161 Cr.P.C. According to this witness, he told the police about coming out of articles viz. Underwear, pen, telephone diary and two electricity bills, from borewell on giving high pressure, but that is not written in the document Ex.D/13 for the reasons best known to the investigating agency. This witness accepted that the report Ex.D/13 was read before him in which no reference of coming out of underwear, pen, telephone diary, electricity bills, ring and pant is made. The reference of identification of articles by Sohanram is also not there.
The cleaning of borewell was made by the investigating agency under the instructions of PW-29 Shri Vijay Shankar Sharma, Investigating Officer. As per this witness though on 21.3.2006 availability of tubewell point came into knowledge, but the same was not cleaned for a period of about two months as he was undergoing a training at Jaipur since 31.3.2006 and subsequent thereto he was on leave from 15.4.2006. After availing leave, he made efforts to have a boring machine and only after availing that, cleaning was made. This witness further stated that he was not having any knowledge about availability of boring machine with Water Works Department, Public Health Engineering Department and Rajasthan Ground Water Department. This witness further stated that after receiving the investigation file on 16.4.2006, he did not -30- make any request in writing to his higher officials to provide boring machine for cleaning the tubewell, though oral requests were made. The oral requests made by him were not responded. Ultimately, complainant provided boring machine at his own. This witness also admitted that no reference of oral requests made by him to the higher officials for having a boring machine was entered in case diary. According to this witness the cleaning of tubewell was started at about 10:00 AM on 24.5.2006 and the same completed at about 05:15 PM on same day. The report Ex.P/4 was prepared on 24.5.2006 itself after completion of borewell's cleaning. The witness of cleaning was Sohanram, who is nephew of Deeparam and second witness was Madanlal who was present at site. No reference of independent cloth articles was mentioned in report Ex.P/4 and the reference of pen, ring, electricity bills and telephone diary too was not made in the document Ex.P/4. An important fact stated by this witness is that among the bones came out from tubewell, 13 bone pieces measures to the length of 6" to 9- 10" and one joint bone appears to be of radius and ulna. The other pieces of bones too were measuring 2" to 6". The bones drained out from the tubewell were sent for examination to the Forensic Science Laboratory. He further stated that the clothes and ring came out from tubewell as referred in document Ex.P/5 were identified by Sohanram and Rajuram. Both the witnesses identified the clothes and other papers as of Deeparam. As per document Ex.P/7, an electricity bill pertaining to the month of July, 2005 also came out while cleaning the tubewell and the bill aforesaid was in the name of Rajuram-Deeparam for the month of July, -31- 2005. Three other bills were in name of Pancharam and Tejaram relating to the months of March, 2005, July, 2005 and August, 2005. Pancharam is father of witness PW-10 Sohanram.
The bones drained out from the tubewell were collected in a cloth and after sealing that the same was sent for their examination to M.D.M. Hospital, Jodhpur. Necessary examination was made by a board of doctors consisting of Dr. H.L.Bairwa, Dr. Yogiraj Joshi, Dr. (Mrs.) Tara Vyas and Dr. (Mrs.) Leena Raichandani. The examination report titled as postmortem report of Deeparam son of Nathu Ram, by caste Jat, aged 35 years, resident of Bawdi, Police Station Khedapa, District Jodhpur, is available on record as Ex.P/20. Dr. H.L.Bairwa came in witness box as PW-26 and stated that on 25.5.2006 he alongwith other members of the medical board examined the bones of deceased Deeparam son of Shri Nathu Ram, brought in a sealed packet wrapped by a white cloth. As per Dr. H.L.Bairwa, on untiding the cloth packet several pieces of bones in an iron saucer were found. Alongwith bones,soft tissues, pieces of ligaments, sand and little water was also there. The bones were parts of parietal, occipital and occipital base bones. Nine pieces of other parts of head bones were also found but their specific identity was not possible. The pieces of right mandible bone and maxilla bone with teeth socket were also identified. Pieces of cervical bones of both the sides, scapula with outer rim and 47 pieces of ribs including a piece of first rib were also identified. Radius and ulna bones of left hand with certain soft tissues were -32- also identified. The length of ulna was 27 cms. and radius was of 25 cms. Both the bones were intact, normal and joined from both the ends. Few pieces of cervical vertebra and atlentoid bone were also available. Pieces of seventh cervical vertebra alongwith spinal process part too were identified. Six pieces of metacarpals and metatarsals bones were also found. A long piece of bone was also found but that was not identified. 31 other small pieces of bones were also found and they were not in position to be identified. The bone pieces found were of zigzag shape without having any blood or other stains. The skull bone was not having seizer fuse and the bones were having male features. After examining the bones, the medical board opined that -
1.all the bones were of one human body;
2.the bones were of a person between the age of 25-50 years; and
3.the bones were of a male person.
The hairs were black and most probably would have been of head. A chemical test to confirm sex chromatin was made. No opinion was given about cause of death.
Dr. H.L.Bairwa in cross examination reiterated that all the bones were of one human body, but he failed to assign any reason for this statement. While accepting that he is not an expert to identify the bones, it was stated by him that being M.S. in Orthopaedics, he can identify the bones. This witness also accepted that in the postmortem -33- report Ex.P/20 no identification of bones was given except the radius and ulna bones. This witness also stated that the bones were identified as a part of male human body on the count that -
1.the bones of skull were having male features and they were having little shining;
2.male features were visible in mastoid process and mandible;
3.the remis part of mandible was towards outside;
4.left side of ulna vein was intact with radius and the same was having male features;
5.bone was shining and was heavy; and
6.metacarpals-metatarsals were having male features.
Admittedly the reasons mentioned above were not mentioned in the postmortem report Ex.P/20. The opinion as per this witness was given on basis of clinical examination and to confirm the findings, the bones were sent for their chemical examination to the competent laboratory.
The prosecution though sent the bones recovered for DNA examination to the centre of DNA Fingerprinting and Diagnostics, Hyderabad, but the report given by the institution aforesaid were placed on record in defence by the accused persons as Ex.D/21. As per the DNA typing evidence for establishing identity report is concerned, no opinion was furnished as the DNA profile of the bones did not yield any DNA suitable for analysis. As such, the DNA test failed.-34-
The pieces of bones were also sent to the Forensic Science Laboratory and were forwarded to biology division for necessary examination and as per the report given (Ex.D/22) no metallic poisons, alkaloids, barbiturates, tranquillizers and insecticides were found. The metallic poison test too was negative. The Forensic Science Laboratory vide its report Ex.D/24 opined that "on morphological and anatomical examination, no definite opinion could be drawn regarding origin, age, sex and type of injury of exhibit No.1 (from packet marked 'F')". The packet concerned was of bones sent for biological examination. As per the scientific evidence, no determination of sex and origin of the bones was made.
As already stated, the videography of excavation made on 21.3.2006 and cleaning of tubewell taken place on 24.5.2006 was displayed before us on 14.2.2013 and while scanning the videography we found that on 21.3.2006 excavation was started at 17:40 hours and stopped at 19:08 hours. The excavating was made by a excavator (JCB) and the process was initiated again on 22.3.2006 at 10:40 hours. In entire video pertaining to the days mentioned above, we do not find any process of sealing or welding the unearthed tubewell point. Suffice to mention that in the report Ex.P/3 also no mention of such sealing or welding exists. The video recording of the process of cleaning, that took place on 24.5.2006, is in continuity of the videography of the process that completed on 22.3.2006. On 24.5.2006 cleaning operation was was started at 11:11 hours. At 12:03 -35- hours a cover of the borewell was removed. At 14:51 hours a piece of cloth was shown near to the borewell. At 14:51 hours an another piece of cloth was shown nearby the borewell. At 15:23 hours high pressure was given and certain pieces of bones were shown lying near the borewell. High pressure was again given at 17:09 hours that resulted into heavy discharge of water. It is pertinent to mention that the tubewell, at the time of cleaning, was discharging water. The clothes and bones were not seen coming out from the tubewell, but lying near the tubewell. On basis of the evidence relating to the search of tubewell and cleaning the same, the arguments formulated by learned counsel for the accused appellants are as follows:-
1.the tubewell as per Ex.P/3 was unearthed on 21.3.2006 and a casing pipe of 20 feet was fixed at the head top point of the well, but the same was kept open, as such, ample opportunity was available for putting in bones, clothes and other articles to implant evidence against the accused appellants;
2.the delay caused in cleaning the tubewell i.e. of two months and three days appears to be intentional to provide sufficient time to implant evidence against the accused appellants;
3.the tubewell was not kept intact but was interfered and subjected to certain changes in between 21.3.2006 and 24.5.2006 as i.e. apparent from document Ex.P/4 as well as from perusal of the video wherein while opening the -36- tubewell on 24.5.2006 casing was opened by cutting a cover, though no such covering was made on 21.3.2006;
4.in view of the statements given by PW-9 Baluram, PW-14 Ramchandra, PW-15 Hemendra Sankhla, PW-25 Arjunram and also from perusal of the videography relating to process of cleaning, it appears that the bones and other articles did not come out from the tubewell but implanted by the investigating agency;
5.without prejudice to the arguments mentioned above, the bones came out from the tubewell cannot be connected with Deeparam; and
6.the clothes which were identified as the wearings of Deeparam and other articles like electricity bills, appears to have been implanted looking to the contradictions and discrepancies available in the prosecution evidence.
All these arguments are to be considered in consonance to the evidence available.
Argument No.1 :-
The first submission of learned counsel for the accused appellants is that the tubewell as per Ex.P/3 was unearthed on 21.3.2006 and casing pipe of 20 feet was fixed thereon, but no reference of closing that is given, as such, the tubewell remained open on 21.3.2006 and even -37- subsequent thereto for a long period. In this period ample opportunity was available to put in bones, clothes and other articles to create fake evidence against the accused appellants. It is asserted by learned counsel that this fact acquires more significance in view of the fact that lot of discrepancies and contradictions appear in prosecution witness about size and condition of the bones and other articles said to be flushed out from the tubewell.
Learned Public Prosecutor and learned counsel for the complainant while contesting the argument stated that the document Ex.P/4 and the statement made by investigating officer PW-30 Shri Pramod Sharma is sufficient to establish that casing fixed to tubewell on 21.3.2006 was covered from its head top.
We have examined the argument by pondering the evidence available. Ex.P/3 is the report of the process relating to search of tubewell on 21.3.2006 in an agriculture field situated close to Bawdi-Jaientara road. The document Ex.P/3 mentions for removing the overburden and finding of a tubewell, the overburden removed with the aid of excavator operated by Shri Irfan son of Fazar Pathan, videography of the process was made by Shri Arjunram son of Jetharam, resident of village Bawdi and that the excavation was made at a specific site being pointed out by Shri Sohanram, nephew of deceased. No further details are given in the document aforesaid. -38-
PW-30 Shri Pramod Sharma, the investigating officer, stated that on 21.3.2006 the tubewell was searched under his instructions as PW-29 Shri Vijay Shankar Sharma, police inspector, was undergoing some training. As per this witness, at the time of making search, PW-10 Sohanram was present at the site but the accused persons were not present there. He also stated that the residence of accused persons was close to the site, therefore, they would have been there. He specifically stated that no reference of closing tubewell was made in document Ex.P/3.
PW-29 Shri Vijay Shankar Sharma, the investigating officer, stated that on 21.3.2006 he went to the site referred in document Ex.P/3, but the document Ex.P/3 was prepared by PW-30 Shri Pramod Sharma. He further stated that though in the document Ex.P/3 there is no reference of closing casing pipe during and after the search of tubewell on 21.3.2006 and 22.3.2006, but the tubewell was closed as this fact was stated to him by Shri Pramod Sharma.
PW-25 Shri Arjunram, who made videography of the entire process of search, did not state a single word about the process taken place on 21.3.2006. His statement is confirmed to the events taken place on 24.5.2006.
PW-14 Shri Ramchandra was one among the two boring machine operators, who made cleaning of the tubewell on 24.5.2006, but he has not stated anything about opening of the casing by cutting casing.-39-
Same is the position with regard to the evidence adduced by PW-15 Hemendra Sankhla. The prosecution has not produced any person in evidence who made welding or covered the tubewell from head top of its casing. Shri Irfan, who was operator of excavator at the time of search for tubewell, was also not produced in witness box by the prosecution. Suffice to note that the process of search was recorded and that was displayed before us on 14.2.2013. In videography also no process of closing the tubewell casing head top was seen. As such, no evidence is available on record to conclude that the casing was closed from its head top or otherwise. The trial court inferred about closing of the tubewell casing on basis of the document Ex.P/4 and the statement made by PW-29 Shri Vijay Shankar Sharma. The document Ex.P/4 is the report of process taken place on 24.5.2006 and not of 21.3.2006. PW-29 Shri Vijay Shankar Sharma, the investigating officer, stated about closing of casing on basis of the information provided to him by Shri Pramod Sharma. Shri Pramod Sharma, while deposing before the court, did not state anything about covering of the well. The inference drawn by the court is based on the events taken place after the lapse of more than two months.
On basis of the discussions made above, we can certainly conclude that no evidence is available on record to establish sealing or covering of the tubewell casing on 21.3.2006 and the material on basis of which an inference drawn otherwise, is not correct, though that material is relevant to arrive at the conclusion that on 24.5.2006 at -40- the time of opening of the casing, the same was found covered. If the casing of the tubewell was kept open on 21.3.2006, then the apprehension of putting down bones, clothes and other articles at subsequent stage cannot be brushed out.
Argument No.2 :-
The next argument of learned counsel for the accused appellants is that the delay caused in cleaning the tubewell after its recovery may be intentional with a view to avail time to implant evidence. It is submitted that the tubewell was unearthed on 21/22.3.2006, but was subjected to cleaning after a lapse of two months and three days and no sufficient reason is given for that. The only explanation given by the prosecution is through the evidence adduced by PW-29 Shri Vijay Shankar Sharma, the investigating officer. As per Shri Vijay Shankar Sharma, after the recovery of tubewell, he was undergoing necessary training at Jaipur and subsequent thereto he remained on leave, therefore, some delay occurred in undertaking cleaning process. As per the evidence adduced by this witness, he was under training and on leave upto the mids of April, 2006. No adequate explanation is given as to why delay of one month occurred even after joining the duties. It is submitted by counsel for the complainant that as a matter of fact nobody was coming forward to clean the tubewell and that was the reason for delay in cleaning the well. The statement made by learned counsel is not supported by any evidence, thus, the same is not -41- acceptable, specially looking to the fact that as per PW-29 Shri Vijay Shankar Sharma himself, boring machines were available at village Bawdi itself and other nearby villages. He also stated that no effort was made to avail boring machine from government departments being not having adequate knowledge about that. We are not at all satisfied with the explanation extended by Shri Vijay Shankar Sharma. In western Rajasthan, the process of boring is too common and even a lay man is aware of the fact that the departments like Public Health Engineering, Ground Water and Water Works are frequently undertaking such kind of operations. The availability of private boring machines is also in abundance. It is relevant to note that even as per prosecution in the instant case also the private machine was borrowed by PW-10 Shri Sohanram, nephew of Deeparam, at his own.
In view of the factual position noticed above and the discussions made, we are of the view that a huge delay of more than two months and three days was caused by the prosecution in cleaning of the tubewell without any satisfactory explanation.
Argument No.3 :-
The third argument of learned counsel for the accused appellants is that the tubewell was interfered and subjected to changes in between 21.3.2006 and 24.5.2006 in view of the fact that on 24.5.2006 the casing was opened by cutting a cover from its head top.-42-
As already stated that no evidence is available on record to conclude that the casing was covered on 21.3.2006 but that was opened on 24.5.2006 by cutting its head top cover. No explanation or material is available on record to satisfy as to when casing of the tubewell was covered from its top. As such, on its face the argument advanced on behalf of the accused appellants is acceptable that the head top of casing was covered subsequent to 21.3.2006 but prior to 24.5.2006. Such unrecorded interference with vital evidence creates doubt about fairness of the investigation.
Argument No.4 :-
The fourth argument of counsel for the accused appellants is that in view of the statements given by PW-9 Baluram, PW-14 Ramchandra, PW-15 Hemendra Sankhla, PW-25 Arjunram and also from perusal of the videography relating to process of cleaning, it appears that the bones and other articles did not come out from the tubewell, but implanted by the investigating agency.
While examining this argument, we find that PW-6 Manglaram stated that he is acquaint with the process of boring and at the time of boring the stone and other hard things come out in pieces being crushed by heavy bit. PW-9 Shri Baluram stated that during the course of boring, a bit attached with the boring machine revolves and hammers inside the tube resulting out throwing of crushed stones and other articles.-43-
PW-14 Ramchandra was one among the two boring machine operators, who cleaned the tubewell on 24.5.2006. As per this witness, after making boring upto 200-215 feet, some resistance occurred and on giving higher pressure certain bones and their pieces came out with bad smell. This witness in specific terms stated that the pieces came out were measuring ½" - 1". While explaining the process of cleaning, this witness stated that normally the space between the tubewell casing and pressure pipe is of ½" and may be of 1" in some cases. The bit, that was fixed with the boring machine on 24.5.2006, brakes the material under it and throws the same out in the size of 1", 1½" or ½"
only.
PW-15 Hemendra Sankhla, the other boring machine operator, also stated that after giving higher pressure at 200-225 feet, certain bones, pen, ring, diary, pant, electricity bills etc. came out and report of that was prepared. As per this witness the articles came out were identified by PW-10 Shri Sohanram as the belongings of his maternal uncle. This witness quite definitely stated that the bones and other articles come out during the process of more than 1", 1½" and ½". This witness also stated that in Ex.P/4 which was signed by him, there is no reference of flushing out pen, telephone diary, electricity bills, ring, pant etc. An another important witness is PW-25 Shri Arjunram. This witness videographed the entire process of -44- cleaning on 24.5.2006. According to him, the bones came out from the borewell were in small pieces of ½" or 1".
As per the evidence adduced by the witnesses mentioned above, the bone pieces thrown out from the tubewell were of small size. The articles examined by the board of experts headed by Dr. H.L.Bairwa were of quite big size upto the extent of 6" - 10". No reference of such big sized bones is given by any of the witness who were present at the site. During perusal of the video displayed before us, we also not found throwing out of big bones from the tubewell, though such pieces are shown lying in mud close to the tubewell. As per the prosecution, beside the bones, the other articles such as clothes, papers, wallet etc. were also thrown out from the tubewell. It is really strange that such perishable items remained intact in tubewell for good eight months. On cleaning, even the electricity bill was found intact and all the contents made therein were found legible. The electricity bill is shown in videography, the contents of which are legible. It is not the case of the prosecution that the electricity bills were covered in some polythene or other plastic bag. If the electricity bills were just in the pocket of the pant recovered, then in normal course those could have not remained intact. We are having enormous doubts about availability of such electricity bills in perfect and complete legible condition. A paper, if remain soaked in water for good eight months, then that would have been certainly macerated.
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An another aspect of the matter is that PW-7 Shri Rajuram, while lodging report at Police Station Khedapa on 22.9.2005, stated that Deeparam was wearing a black pant and a black shirt with while lining. As per PW-3 Shriram, Deeparam was wearing a grey trouser and a checked shirt. Nothing was stated by Shri Sohanram to the investigating agency at first instance about wearings of Deeparam, but on 22.4.2006 he stated to the investigating agency in his supplementary statement that Deeparam was wearing a shirt of grey colour, a black pant, shoes and was also wearing a silver ring. This statement was made after discovery of tubewell closing of which from head top is highly doubtful. The clothes said to be drained out from tubewell on 24.5.2006 are matching with the identifications given by Sohanram (PW-10) on 22.4.2006. The narration of this important fact after discovery of the tubewell is quite important and that creates further doubt about truth of the prosecution case.
The evidence discussed above creates a reasonable doubt in believing prosecution story about flushing out of bones and other articles from tubewell during its cleaning. Argument No.5 :-
An important argument advanced by learned counsel for the accused appellants is that the bones said to be recovered from tubewell cannot be connected with Shri Deeparam. It is asserted that as a matter of fact the death of Shri Deeparam is also quite uncertain. The bones -46- recovered were subjected to a medical examination by a board consisting of five persons. The board prescribed its report which is on record as Ex.P/20. As per Ex.P/20 the bones are of single human being, a male within the age of 25-50 years subject to confirmation by chemical examination. The board took some parts of bones, hairs and soft tissues and handed over to the police personnels for DNA analysis to determine sex and for other essential purposes. PW-26 Dr. H.L.Bairwa while verifying contents of the postmortem report Ex.P/20, stated that the opinion given about gender of the person to whom the bones belonging was on basis of experience and being an Orthopaedic surgeon. He admitted that essentially such determination can be made only by entomologist or through the DNA test. The investigating agency under the document Ex.P/43 sent the bones to the Superintendent of Police (Investigation), CID (CB), Jaipur to determine that whether those belong to human body and if yes, then to gender and age of the same. The Superintendent of Police, CID (CB) sent the same to the Additional Director, Police (Crimes) and further to Director, Forensic Science Laboratory. The report of the Forensic Science Laboratory is available on record as Ex.D/24. As per document Ex.D/24, the Forensic Science Laboratory on morphological and anatomical examination was not in position to provide any definite opinion to determine origin, age, sex and injury of exhibit No.1 i.e. bones sent in the packet marked as 'F'. The Forensic Science Laboratory under its report Ex.D/22 gave a negative report about availability of metallic poison, alkaloids, barbiturates, tranquillizers and insecticides in -47- the articles which are pieces of rib, vertebra and vertebra hyoid bone. The Forensic Science Laboratory in its report Ex.D/23 also not found any blood stains on the shirt, pant and other pieces of clothes recovered at the time of cleaning the tubewell. The DNA typing evidence for establishing identity report is available on record as Ex.D/21. The DNA Fingerprinting and Diagnostics Centre, Hyderabad in the report aforesaid conclude that "since DNA profiles from any of the sources of exhibits A (teeth), B (hair), C (tissue), D (ribs & vertebrae), E (vertebra & hyoid bone) are essential to compare with the DNA profiles of the sources of exhibits F (Shri Raju Ram) and G (Shri Mohan Ram), therefore, no opinion is being furnished herewith." The conclusion aforesaid was arrived by analysing datas using GeneScan(R) and Genotyper(R) after abstracting DNA from the subjected exhibits. The result of test as per Ex.D/21 is "the sources of exhibits A (bone pieces & two teeth of the deceased), exhibit B (hair of the deceased), exhibit C (soft tissue of the deceased), exhibit D (bones ribs and vertebrae of the deceased), and exhibit E (bone pieces vertebra and hyoid bone of the deceased) did not yield any DNA suitable for analysis, therefore did not yield any DNA profiles. The sources of exhibits F (blood sample said to be of Shri Raju Ram) and exhibit G (blood sample said to be of Shri Mohan Ram) yielded DNA profile."
The discussions made above indicate that though the medical board opined that the bones were of a male but no definite opinion in this regard was given either by the Forensic Science Laboratory or the DNA Fingerprinting and -48- Diagnostics Centre, Hyderabad. The gender was given by the medical board subject to confirmation by chemical examination which ultimately resulted in no definite opinion. In such circumstances, we are in agreement with learned counsel for the accused appellants that a reasonable doubt exists in accepting connectivity of the bones recovered with Shri Deeparam.
An important aspect that also requires to be taken into notice at this stage is that during the cleaning of tubewell as per the prosecution radius ulna bones of left hand were recovered. The other bones recovered also relates to ribs and skull. All the bones as such are of upper portion of a human body. No bone of lower portion of human body were found during cleaning. If radius ulna was found intact during the course of cleaning, then the bones like humerus and tibia fibula would have also been found either intact or in crushed/damaged position. We fail to understand that why no bone of lower portion of the body was found during the course of cleaning the tubewell upto the depth of more than 500 feet. It is not the case of prosecution that the body of Deeparam was cut into pieces and then thrown into tubewell. For the sake of argument even it is assumed, body would have been cut down, then too missing of lower portion is quite strange and creating little suspicion about the way in which parts of body were thrown in tubewell. It is also a fact important to be noticed that usually diameter of a tubewell is about 10"
and a body of a mature normal human being cannot be put down in a tubewell without cutting that in pieces. Learned -49- Public Prosecutor as well as learned counsel for the complainant utterly failed to satisfy us as to how the body of Deeparam, a man of normal built in the age of 35 years, would have been thrown into the tubewell without cutting that. If that was cut in pieces, then blood stains should have been found with soft tissues and bones pertaining to which a negative report is given by the Forensic Science Laboratory. No sharp edged weapon is also recovered at the instance of the accused persons or otherwise too. As a matter of fact it is not the case of prosecution that the body of Deeparam was at all cut in pieces.
Having considered all these facts, we are having a reasonable doubt in accepting the prosecution case that bones found in tubewell were of Deeparam.
The last argument advanced by learned counsel for the accused appellants pertains to the articles other than the bones recovered during the course of cleaning of tubewell. It is submitted that PW-10 Sohanram identified all the articles and as per this witness at the time of cleaning, the tubewell was not discharging water and the articles came out with sand only. However, the version of other witnesses including the investigating officer and also the videography is quite different.
Suffice to mention that while watching video, we observed that water came out from the tubewell prior to showing of the bones and other articles lying close to the borewell point. The statement given by Sohanram is not in -50- consonance with the video available. Either the video is wrong or the statement made by this witness is not correct. We would like to mention here that the videography of the process of searching the tubewell on 21.3.2006 and cleaning of the tubewell on 24.5.2006, both are in one article i.e. Article-16, a video cassette. No report about sealing of that cassette on 21.3.2006 is available on record and similarly no report is available about reopening of the same on 24.5.2006 for further recording of the process that was initiated on 24.5.2006. It is also not clear that in whose possession the cassette remained from 21.3.2006 to 24.5.2006. This fact too is having its own impact to create a reasonable doubt in accepting the prosecution story.
After making discussions of entire evidence, the issue can be summed up with the findings that Deeparam was seen in company of Phoosa Ram at the shop of Shriram in the evening of 22.9.2005 and thereafter he was also seen in the same company at Bawdi Bus Stand. Deeparam was seen in company of Phoosa Ram as well as of Baburam at the shop of Premaram in the night of 22.9.2005. However, his last seen in the company aforesaid with the aid of the evidence adduced by Bhuraram (PW-13) has not been established. The accused persons failed to explain as to why they did not disclose availability of a tubewell just at the distance of about 60 feet from their residential house, though on a land that was not in their exclusive possession, however, the failure to explain such concealment is not sufficient to infer definite involvement of the accused persons by brushing aside the reasonable doubt existing in view of the -51- discussions made about the evidence available on record essentially pertaining to the recovery of bones and other articles on cleaning of tubewell. The reasonable doubt existing in accepting the prosecution case is sufficient to acquit the accused appellants.
Accordingly, this appeal is allowed. The conviction of the accused appellants recorded by the trial court is set aside. The sentence awarded by the trial court too is set aside. Accused appellants Phoosa Ram son of Birma Ram and Baburam son of Birma Ram are acquitted from the charge of committing offences punishable under Sections 302, 364 and 201 Indian Penal Code. They be released from State custody, if not otherwise required in any other case. (BANWARI LAL SHARMA),J. (GOVIND MATHUR),J. Mathuria KK/ps.