Rajasthan High Court - Jodhpur
Shanker Lal vs State on 24 March, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPURD.B.
Criminal Appeal No. 76 / 1989
Shanker Lal S/o Shri Bheru, by caste Naik, resident of Village
Khajuriya Kheda, Police Station Rashmi, District Chittorgarh.
----Appellant
Versus
The State of Rajasthan
----Respondent
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For Appellant(s) : Ms. Yogita Mohnani
For Respondent(s) : Mr. J.P.S. Choudhary, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment (per Hon'ble Moolchandani, J.) 24/03/2017 REPORTABLE Validity of judgment dated 02.03.1989 passed by Additional Sessions Judge, Chittorgarh convicting the appellant- accused under Section 302 IPC in Session Case No.13/1988 has been challenged by this criminal appeal.
2. Brief facts relating to the crime reveals that on 29.09.1987 Nathu S/o Chuna Teli, informed orally vide Ex.P/1 that, "eqLekr deyk D/o dtksM+ rsyh] lk] ck: vkt fnu ds djhc 11&12 cts ?kj ls ekykukeh tehu tks fd [ktqfj;k [ksM+k ds ikl gS eos"kh;ksa ds ?kkl ysus xbZA djhc 4 cts nsofd'ku S/o dkyq rsyh Hkh mlds [ksrksa ij x;k rks deyk dh yk"k ekyukeh tehu ij iM+h gqbZ feyhA nksuks ikao fdlh cnek"kksa us dkV Mkys o mlds ikao esa pkUnh dh dM+h;ka iguh gqbZ Fkh oks deyk dh yk"k ns[k dj nsofd"ku esjs ikl dqck ij vk;k fQj esa o nsofd"ku rsyh ek/kq rsyh gtkjh (2 of 10) [CRLA-76/1989] czkgE.k eky ukeh tehu ij x;s deyk dh yk'k cSyxkM+h esa Mkydj ckjB xkao esa dtksM+ rsyh ds edku ij yk;sA eq>s bryk djus Hkstk gS dk;Zokgh djkbZ tkosA fdUgha cnek'kksa }kjk deyk ds iguh gqbZ dfM+;ksa dks pqjkus dh xtZ ls mldh gR;k dh gSA dk;Zokgh djkbZ tko s", this FIR was lodged on 29.09.1987 under Section 302 IPC and after due investigation, appellant-accused was charge-sheeted and was subsequently tried, the prosecution produced 13 witnesses and got 18 documentary evidence exhibits, there was no eye- witness and the case basically hinged upon circumstantial evidence, which was culminated with the findings aforesaid.3.
3. While addressing submissions, learned counsel for the appellant has contended that the findings of learned trial court are wrong perverse and so are not sustainable because there is no evidence against the appellant-accused, theory of last seen together, baselessly invented has also not been relied upon by the trial court and recovery of alleged silver karas were also not made. Appellant-accused has wrongly been convicted on the basis of alleged recovery of certain axe, which too has not been established. Placing reliance on the judgment in Vijay Shankar v. State of Haryana [2015 Cr.L.J. 4774], learned counsel for the appellant has argued that sheer recovery could not be basis for the conviction. Moreover, said recovery has allegedly been made after an elapsement of more than a month from the date of the alleged offence, so, the findings of the learned trial court are not worthy to be sustained and are liable to be set aside, so appeal be accepted and impugn judgment be quashed.
(3 of 10) [CRLA-76/1989] Conversely, learned Public Prosecutor has contended that nothing wrong has been concluded by the learned trial court in its findings because the appellant-accused has been convicted on the basis of recovery of blood-stained kulhari (axe), which was recovered on his instance of the accused appellant and human blood was found on it the appellant-accused was found roaming near the spot of occurrence, so there is no flaw in the impugned verdict, which is liable to be sustained, hence, the appeal be disallowed and the sentence and findings of guilt be upheld.
4. Heard submissions of both the sides and examined the record of the learned trial court and perused the evidence.
Ex.P/1 FIR does not reveal name of any accused person and it has been lodged against anonymous.
5. PW-1 Nathu S/o Chuna, complainant, has said that the incident belongs to 10 months back, Kamla D/o Kajod had gone to bring fodder. Kamla's legs were found severed and cut, she was found dead. She used to wear silver "karas" in her legs, which were found disappeared and Ex.P/1 FIR was lodged by him, which contains his signatures, he has also ratified Ex.P/2, Ex.P/3, Ex.P/4, Ex.P/5, Ex.P/6 and Ex.P/7.
PW-2 Chandmal is also a testimony of same kind and has narrated that he too had got information relating to the unnatural death and lodging of FIR and has ratified Ex.P/6 Panchnama, Ex.P/3 spot map, seizure of apparels of the deceased Ex.P/8 and recovery of axe from the tenement of Shankerlal vide (4 of 10) [CRLA-76/1989] Ex.P/9, in his cross-examination he has said that after 10- 15 days of lodging FIR, the axe was recovered but perusal of recovery memo of alleged weapon of assault, kulhari (axe), which is Ex.P/9, shows that it was recovered on 27.10.1987, which happens to be 28 days ahead of the FIR, which shows that the testimony of this witness lacks a veracity because the space of timings of recovery mismatches and recovery too has been made belatedly even after four days after the arrest of the accused and arrest memo shows, that detenue was having injuries on her body, which suggests something dubious being under duress.
6. PW-3 Devkishan has said that he had seen deceased Kamla going to the field with Ramu and has said that around four struck, Ramu came to him and said that Kamla has yet not come back, take care of her, so he went to trace her and found her lying on the margin of field of Kajod, her legs were found severed and cut, seeing so, he went to call his brother Madhu and came back to the field with Madhu and Nathu, then brought dead body on bullock-cart and lodged the report. She used to wear silver "karas", which were not there on her body and has further said that her legs were severed and cut only because of the same.
PW-4 Lachhmi Chand is a witness of Ex.P/4 memo of spot map, Ex.P/5 spot map, Ex.P/10 and 11 through which spot soil was seized and Ex.P/6 panchnama and has asserted his signatures on these documents. He too has said that (5 of 10) [CRLA-76/1989] her legs were found cut, in his cross-examination he has said that there was fodder in the field without any other crop.
PW-5 Smt. Nani has said that deceased Kamla was his sister-in-law (Nannad), it is a matter of one year back, she had gone to fetch fodder, somebody killed her. She has further said that two days before the incident, she had gone for getting OX grazed, Shanker came there and inquired her identity and way which she informed Shanker Naik is a resident of Hajura Kheda. Narration of observing Shanker in the field two days prior to the incident does not reveal anything material and such a say is also of no work, since it does not enlighten anything with respect to concept of last seen together or any untoward misadventure on his part.
6. PW-6 Smt. Premi has become hostile. Utterance of this witness also does not reveal anything relevant, since this witness had contradicted her police statement as well.
PW-7 Lachhman has uttered only that about 10.00-11.00, he had seen Shanker going towards "Baru" but such a narration does not reveal anything significant with respect of revelation of anything material pertaining to doctrine of last seen together or commission of alleged crime.
PW-8 Kajod father of deceased girl Kamla has just narrated that Kamla had gone to field to fetch fodder. She did not return timely and on search, she was found dead with legs severed and cut and he found that "karas" were not there on her legs.
(6 of 10) [CRLA-76/1989] PW-9 Radheshyam Laddha is a doctor, who conducted postmortem on the body of deceased girl and he has said that the injuries found on her body were sufficient to cause death and Ex.P/13 was prepared by him, which was having his signatures. He has also said that his both legs were severed and were cut apart with skin, muscles and bones and he had conducted postmortem on 30.09.1987.
PW-10 Bherulal is a Constable, who deposited articles in FSL and has ratified Ex.P/14 receipt of FSL and Ex.P/15 forwarding letter.
PW-11 Sesu has said that he is aware about the axe of Shanker and Article 1 is axe of Shanker and in his cross- examination he has just said that he was not shown the kulhari in thana but it was shown in Khajuria Kheda by the police and narration of this witness pertaining to recovery did not say anything material on the admissibility of alleged recovery.
PW-12 Gopi has become hostile and has stated that Article-1 kulhari does not belong to Shanker and has also refuted Ex.P.14A police statements.
PW-13 Hamid Khan is SHO, has narrated the sequence of investigation and has asserted the exhibits thereto and with respect to recovery of kulhari, this witness has said that vide Ex.P/16, Shanker was arrested and he had informed regarding keeping of the said kulhari in his premises and this information was recorded in Ex.P/17, the kulhari was got recovered through Ex.P/9, which was concealed and was recovered, in his cross-examination he has said that nothing could (7 of 10) [CRLA-76/1989] be ascertained from 30.09 to 22.10. On 22.10, it was informed through "informer" that Shanker was seen around the place of occurrence. PW-13 Hamid Khan has again been produced in evidence for the ratification of Ex.P/18 FSL Report.
7. Upon considering entire aforesaid evidence of the prosecution, it emerges that nothing concrete naturing incriminatory has come against the accused person, so far as recovery of alleged "kulhari" is concerned, it too has not been recovered according to the provisions of evidence act, which may be said to be positive in nature or it could be termed to be having evidentiary value and which could connect the appellant-accused with the crime.
PW-2 Chandmal S/o Ugamlal is a witness of alleged recovery of kulhari but this evidence is also not positive in nature because the timings and days of recovery from the date of occurrence are not matching and another witness Sugan Chand S/o Bhura Lal has not been produced by the prosecution. Mere recovery of "kulhari"is also not enough to convict the accused person for the alleged offence because Hon'ble the Supreme Court in the case of Vijay Shankar (supra) has held in Head Note (D) as under:-
"Evidence Act (1 of 1872), S.27 - Evidence as to recovery-= Murder case - Alleged recovery of bloodstained clothes from box lying in house of accused and also knife from field at instance of accused - Bloodstained clothes and knife, sent to FSL was disintegrated - Not much weight can be attached to alleged recovery of bloodstained clothes and knife."
(8 of 10) [CRLA-76/1989]
8. Ex.P/17 is an information rendered under Section 27 of the Evidence Act dated 27.10.1987 pertaining to concealment of "kulhari and silver karas", but Ex.P/9 recovery memo shows recovery of "kulhari" only and no "silver karas" have been recovered, moreover link evidence relating to Malkhana has also not been produced, so the recovery and its link gets fragiled and diminishes its worth.
9. In cases relating to circumstantial evidence, prosecution is needed to produce evidence connecting all vital links, on the basis of which conclusion of guilt could only be inferred and derived but nothing of this nature has come from the evidence of the prosecution.
10. In Manthuri Laxmi Narsaiah Vs. State of Andhra Pradesh, "it has been held that it is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof and in "Sharad Birdhichand Sarda Vs. State of Maharashtra", cardinal principles of circumstantial evidence have been prescribed.
In case of Mani vs. State of Tamilnadu 2008 (2) CJ (SC) Cri. 523 Hon'ble Supreme Court has held that evidentiary value of recovery is a weak kind of evidence and that cannot be relied upon so as to hold accused appellants guilty, and is para 21 of the Judgment it has been held:-
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery (9 of 10) [CRLA-76/1989] fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the Courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are believed, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the staying cattle nor was he a party to subsequent altercation between PW-1 Arunachalam and the accused No.2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused No.2 Moyyasamy and he was set up by the accused No.1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go."
11. Likewise in Jiten Besra v. State of West Bengal, (2010) 2 S.C.C. (Cr.) 438 and in Kamla Devi vs. State of Delhi, 2012 (2) J.C.C. 1457 (Delhi) the Hon'ble Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt and in Baijnath & Ors. vs. State of Madhya Pradesh, 2017 1 SCC 101, Hon'ble the Supreme (10 of 10) [CRLA-76/1989] Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P., (2004) 10 SCC 699, the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
12. Considering the evidence in totality, we are of the view that prosecution has failed to produce material and reliable evidence, which could connect the appellant-accused with the crime. Sheer recovery of "kulhari", which too is not properly proved after elapsement of one month with snapping link evidence is not sufficient to infer guilt of the appellant-accused, as such, the impugned judgment and sentence are liable to be set aside.
Resultantly, the appeal is allowed and the impugned judgment and sentence is set aside and the appellant accused is acquitted from the charge of Section 302 of IPC, he is already on bail, so need not to surrender, his sureties are discharged.
However, keeping in view, the provisions of Section 437A Cr.P.C. the accused-appellant is directed to forthwith furnish a personal bond in the sum of Rs.30,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months with the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court accordingly. (G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J.