Rajasthan High Court - Jaipur
Sultan S/O Ramlal vs State Of Rajasthan (2023/Rjjp/010157) on 2 June, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023/RJJP/010157]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Death Reference No. 3/2022
State Of Rajasthan
----Petitioner
Versus
1. Sultan S/o Ramlal Bheel, Aged About 27 Years, R/o
Jagmohanpura, (Brighu Nagar) Police Station Kachola,
District Bhilwara (Raj) At Present R/o Aadholi Mohan
Banjara, Kala Kuwa Thana Basoli District Bundi (Raj)
2. Chotu Lal S/o Devilal Bheel, Aged About 60 Years, R/o
Kuwa Thana Basoli District Bundi (Raj)
----Respondents
Connected With D.B. Criminal Appeal (Db) No. 134/2022 Chotu Lal S/o Devi Lal Bheel, Aged About 60 Years, R/o Kuwa, PS - Basoli, District Bundi (Raj) (Prisoner, Central Jail, Jaipur)
----Petitioner Versus State Of Rajasthan
----Respondent D.B. Criminal Appeal (Db) No. 135/2022 Sultan S/o Ramlal Bheel, Aged About 27 Years, R/o Jagmohanpura (Bhargu Nagar) PS- Kachola, District Bhilwara (Raj) Present R/o Adholi Mohan Banjara Kala Kunwa Ps Basoli District Bundi (Raj) (Prisoner, Central Jail Jaipur)
----Petitioner Versus State Of Rajasthan
----Respondent (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (2 of 18) [CRLDR-3/2022] For State : Mr. Javed Choudhary, Addl. G.A. For Accused : Mr. Ravi Chiraniya, Amicus Curiae assisted by Mr. Gaurav Kumawat, Mr. S.K. Panwar HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment Reserved on :: 09/05/2023 Pronounced on :: 02/06/2023 (Per : Pankaj Bhandari, J.)
1. The above mentioned Death Reference and two Criminal Appeals shall stand decided by this common judgment as they arise out of the same judgment of conviction and order of sentence.
2. Present D.B. Criminal Death Reference No. 03/2022 has been moved by the Special Judge, POCSO Act, 2012 & Commission for Protection of Child Rights Act, 2005, No. 2, Bundi (Rajasthan) for confirmation of death sentence awarded to the accused - Sultan and Chotu Lal, whereas, D.B. Criminal Appeal Nos. 134/2022 (Chotu Lal vs. State of Rajasthan) and 135/2022 (Sultan vs. State of Rajasthan) have been filed by the accused - Chotu Lal and Sultan, respectively, challenging their conviction and sentence awarded vide judgment of conviction dated 28.04.2022 and order of sentence dated 29.04.2022 passed in Sessions Case No. 08/2022 (State of Rajasthan vs. Sultan & Anr.) arising out of F.I.R. No.106/2021 registered at Police Station Basoli, District Bundi, whereby they have been convicted and sentenced as under:- (Downloaded on 11/11/2023 at 05:46:17 PM)
[2023/RJJP/010157] (3 of 18) [CRLDR-3/2022] Offence Sentence Fine Sentence for default u/s 376-D IPC in Life imprisonment Rs. 3 months' RI alternative Sec. till remainder of 10,000/-
5(G)/6 of POCSO natural life Act, 2012 u/s 376-A IPC in death penalty Rs. 3 months' RI alternative 5(j) 25,000/- (iv)/6 of POCSO Act, 2012 u/s 376(2)(n) IPC in Life imprisonment Rs. 3 months' RI alternative Sec. till remainder of 10,000/- 5(l)/6 of POCSO Act, natural life 2012 u/s 302 r/w Sec. Life imprisonment Rs. 3 months' RI 120-B IPC 10,000/- u/s 201 IPC 7 years' RI Rs. 5,000/- 2 months' RI
(All the sentences are ordered to be run concurrently)
3. Succinctly stated the facts of the case are that on 23.12.2021, adoptive father of the deceased filed a written report (Ex.P-1) at Police Station Basoli, Bundi stating therein that the deceased left the house at 05:00 pm with her water bottle for easing herself and did not return. When the complainant and his wife searched for the girl, they found her dead body in a naked condition with many injuries on her body. It was mentioned in the report that the complainant suspects that someone has raped and murdered the victim. On the said report, police registered FIR No.106/21 under Sections 302, 201, 376(2)(l), 376(2)(m) and 3/4 of POCSO Act and commenced investigation. After due investigation, charge-sheet was filed against accused appellants. The Learned Trial Court framed charges against the accused. The accused denied the charges and sought trial. As many as 22 witnesses were examined and 79 documents on behalf of the prosecution. Explanation of accused was recorded under Section 313 Cr.P.C. No oral evidence was led on behalf of the accused, but (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (4 of 18) [CRLDR-3/2022] 2 documents were exhibited in defence. The Trial Court after hearing the State and the accused passed the judgment dated 28.04.2022 and order of sentence dated 29.4.2022 convicting and sentencing them for the aforementioned offences. Aggrieved by which, accused appellants have preferred separate appeals whereas, State has preferred Death Reference for confirmation of death sentence of accused appellants.
4. It is contended by Mr. Javed Choudhary- learned Additional Government Advocate that a young girl, aged less than 16 years of age was raped and murdered by the accused which has been established by the prosecution by leading cogent evidence. The DNA report points towards the guilt of the accused and the case fall within the category of 'rarest of rare case'. Hence, the death sentence requires to be confirmed by the High Court. It is argued by learned Additional Government Advocate that underwear of accused-Sultan was recovered from the crime scene. The dog squad led to the accused -Sultan. At the instance of the accused- Sultan, on the basis of information given by him under Section 27 of Evidence Act, his blood stained shirt was recovered. The recovered articles were sent to the State Forensic Science Laboratory and the DNA report was obtained. On perusal of the conclusion of DNA report, it is revealed that the alleged offences are clearly made out against accused- Sultan and learned Additional Government Advocate has pointed out towards the conclusion drawn by the FSL, which is as under:-
"2. The DNA profile obtained from exhibit no.14 (Blood sample of accused Sultan on FTA card) is matching with the DNA profiles obtained from exhibit no.8 (Underwear recovered from crime scene), 9 (Penile swab of accused (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (5 of 18) [CRLDR-3/2022] Devraj urf deva), 12 (Penile swab of accused Sultan) and 27 (Shirt of accused Sultan).
3. The DNA profile obtained from exhibit no.24 (Blood sample of deceased on FTA card) is matching with the DNA profiles obtained from exhibit no.1 (Underwear of deceased), 3 (Salwar of deceased), 5(Vaginal swab of deceased), 21 (Blood smeared soil), 23 ([kwu vkywnk dadj] iRrs] <aBy] tkuojks dh chV), 26 (Blood stained stone) and 27(Shirt of accused Sultan)."
5. It is argued by learned Addl. Government Advocate that since the DNA profile obtained from blood sample of accused- Sultan was matching with the DNA profiles obtained from the underwear recovered from the crime scene, penile swab of accused- Devraj, penile swab of accused- Sultan and shirt of accused- Sultan and the DNA obtained from blood sample of deceased was also matching with the shirt of accused- Sultan, it is clearly made out that accused- Sultan was involved in the offence of rape and murder. He further argued that from the material available on record, it is clear that DNA profile obtained from accused - Chotu Lal was matching with the DNA profile of the deceased, which shows that he was also involved in the offence. On perusal of the conclusion of DNA report also, it is revealed that the alleged offences are clearly made out against accused- Chotu Lal and learned Additional Government Advocate has pointed out towards the conclusion drawn by the FSL, which is as under:-
"4. The DNA profile obtained from exhibit no.17 (Blood sample of accused Chotulal on FTA Card) is matching with the DNA profiles obtained from exhibit no.7 (Dhoti of accused Chotulal) and 15 (Penile swab of accused Chotulal)."(Downloaded on 11/11/2023 at 05:46:17 PM)
[2023/RJJP/010157] (6 of 18) [CRLDR-3/2022]
6. Amicus Curiae appearing for the accused- Chotu Lal and Sultan has argued that the case rests on circumstantial evidence and as such there is no eye witness to the incident and no last seen evidence to connect the accused with the crime. It is contended that accused- Chotu Lal was aged 60 years at the time of alleged incident. The DNA profile obtained from accused- Chotu Lal is not matching with the DNA profile of the deceased. Hence, the trial Court has committed grave error in convicting and sentencing accused- Chotu Lal with death penalty.
7. With regard to accused- Sultan, it is contended by Amicus Curiae that as per the prosecution, there were three crime scenes. Police reached the crime scene on the fateful night itself. However, underwear which is stated to belong to accused- Sultan was not recovered on the same day and was recovered on the next day. It is also contended that the conclusion of DNA report clearly reveals that the blood sample of Devraj who was a juvenile was matching with the DNA obtained from the underwear and Salwar of the deceased. Thus, from perusal of the conclusion of DNA Report, the alleged offence was made out only against Devraj who was a juvenile. It is further contended that DNA drawn from the underwear and Salwar of the deceased had the mixed DNA profile and it was matching only with that of Devraj who was a juvenile. The possibility that the offence was committed by a juvenile- Devraj @ Deva cannot be ruled out. It is also contended that the only evidence against Sultan is recovery of his shirt at his instance. It is argued that Sultan was arrested on 24.12.2021 at 04:30 pm vide Ex. P-13. Information under Section 27 of Evidence (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (7 of 18) [CRLDR-3/2022] Act by accused- Sultan regarding his shirt is stated to be given on 26.12.2021 vide Ex.P-64. Shirt of Sultan was recovered from tapri in the farm of Mohan Lal vide Ex. P-30 on 26.12.2021 at his instance. The recovery was effected at 03:40 pm but, there is no independent witnesses to the said recovery. It is argued that tapri is said to be belonging to accused- Sultan which fact is not supported by PW-4 (Mohan Lal) who is owner of the field. The shirt belongs to accused- Sultan is a fact which was to be established by the prosecution but prosecution has utterly failed to establish the same. As per PW-4 (Mohan Lal), Surendra with his family was residing in the tapri in the farm belonging to him and there is no evidence that Sultan was residing at tapri.
8. It is also contended that the next circumstance against accused- Sultan is the information given by him under Section 27 of the Evidence Act regarding clothes of the deceased vide Ex.P15. It is argued that the information with regard to the clothes of the deceased was drawn on 25.12.2021 at 01:20 pm, whereas the recovery of kurta of deceased (Ex.P-27) at the instance of Sultan was made on 26.12.2021, which is more than 24 hours after the information was given. There are no independent witness to the said recovery. Hence, accused- Sultan should not have been convicted on the basis of recovery of clothes of the deceased at his instance. It is also important to note that female DNA profile was obtained from the kurta of the deceased and there is no report that the same matches with the DNA of the accused. It is argued that the learned trial Court has also taken into consideration the injuries on the person of the accused- Sultan, (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (8 of 18) [CRLDR-3/2022] which were bruises at 4-5 places on the back and abrasions on the nose and right ear to connect Sultan with the alleged incident. It is argued that no injury report was prepared to establish that the injuries were caused during the commission of alleged offence. So far as seizure of underwear near from the place of occurrence is concerned, it is contended that the Dog Squad came to the place on the fateful night itself, thus, it cannot be believed that dog did not point towards the underwear of the accused which clearly goes to show that the underwear was planted.
9. It is contended that the investigating officer has not made any independent witness to the memos prepared which fact is admitted by Banwarilal (PW-12). It is also contended that the DNA of the blood sample of the deceased on the FTA card was not matching with the DNA profile obtained from the underwear recovered from the crime scene, which is stated to be of accused- Sultan. It is argued that DNA profile obtained from the blood sample of accused-Sultan on FTA card was found to be matching with penal swab of the accused- Devraj @ Deva. It is argued that the DNA obtained from the penal swab of accused-Sultan was not matching with the DNA of the deceased. Thus, merely because the DNA of the penal swab of accused- Devraj was matching with the DNA of the penal swab of accused-Sultan, it cannot be said that Sultan committed any offence against the victim.
10. Counsel for the appellants has placed reliance on Soni Devi Vs. State of Bihar (2021) 4 PLJR 208; Puran Vs. State 2022 SCC OnLine Del 2024; State Vs. Md. Jabbar 2022 SCC OnLine Del 4007; Suresh Vs. State of Maharashtra 2023 SCC OnLine (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (9 of 18) [CRLDR-3/2022] Bom 641; Rahul & Ors. Vs. State of NCT of Delhi (2023) 1 SCC 83; Vinod Katara Vs. State of Uttar Pradesh Writ Petition (Criminal) No.121/2022; Hema Ram & Anr. Vs. State of Rajasthan D.B. Criminal Appeal No.856/2015 decided by Rajasthan High Court on 20.05.2019; Jagdish Vs. State of Rajasthan D.B. Criminal Appeal No.2047/2017 decided by Rajasthan High Court on 03.03.2022.
11. We have considered the contentions and have perused the record.
12. The present case rests on circumstantial evidence. In Sharad Birdhi Chand Sarda Vs. State Of Maharashtra: 1984 AIR 1622, the Apex Court dealt with a case pertaining to circumstantial evidence, wherein it was been held as under:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (10 of 18) [CRLDR-3/2022] consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. It is admitted by the Investigating Officer - Sajjan Singh (PW-20) that in the present case, there are no eyewitness and no last seen evidence. He has also admitted that only on the basis of recoveries, both the accused appellants have been considered as accused and for the said recoveries, there are no independent witnesses. In light of clear admission made by Sajjan Singh (PW-
20) that there are no eyewitness and no last seen evidence and that only on the basis of recoveries, the appellants have been made accused in this case, we have to see as to when, how and from where the recoveries have been made.
14. Both appellants - Sultan and Chotu Lal were arrested on 24.12.2021 at 4:30 PM and 5:00 PM respectively. Sultan gave information with regard to clothes of deceased on 25.12.2021 at 1:20 PM vide Exhibit-P15. Chotu Lal gave information with regard to payjeb (anklet) on 25.12.2021 at 1:30 PM vide Exhibit-P16. Information under Section 27 of the Evidence Act was given by Sultan with regard to his shirt at 9:30 AM on 26.12.2021 vide Exhibit-P64. Information with regard to dhoti was given by accused Chotu Lal vide Exhibit-P66 at 10:15 AM on 26.12.2021. Information with regard to a stone was given by Sultan on 26.12.2021 at 10:35 AM vide Exhibit-P67. Recovery of clothes i.e. kurta of the deceased at the instance of Sultan was made on 26.12.2021 at 2:50 PM vide Exhibit-P26, salwar of the deceased at the instance of Sultan was recovered at 3:10 PM vide Exhibit- P28 on 26.12.2021. Shirt of accused Sultan was recovered vide (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (11 of 18) [CRLDR-3/2022] Exhibit-P29 at 3:40 PM on 26.12.2021. Payjeb (anklet) of the deceased was recovered at the instance of accused Chotu Lal at 5:00 PM on 26.12.2021 vide Exhibit-P31 and blood smeared dhoti of accused Chotu Lal was recovered at 5:30 PM vide Exhibit-P33 on 26.12.2021.
15. It is pertinent to note that the site plan of recovery of blood smeared stone was prepared vide Exhibit-P25 at 2:45 PM on 26.12.2021 and as per the noting therein, distance of the recovery site from the police station was mentioned as 18 kms. The other site plan, which pertains to recovery of kurta of the deceased, was prepared at 3:25 PM vide Exhibit-P27 on 26.12.2021 and the distance shown in the note made therein, between the site of recovery and police station is 19 kms. The site plan of recovery of shirt of Sultan is Exhibit-P30, which was prepared at 3:55 PM on 26.12.2021 wherein the distance of police station and recovery site is mentioned as 20 kms. So if all the site plans are put together, site plan for recovery of blood smeared stone was prepared at 2:45 PM, site plan of recovery of kurta of deceased was prepared at 3:25 PM and site plan for recovery of shirt of Sultan was prepared at 3:55 PM. Admittedly, as per Exhibit-P25, the recovery site is at the distance of 18 kms from the police station, as per Exhibit-P27, the other recovery site is at the distance of 19 kms from the police station and as per Exhibit-P30, the recovery site is at the distance of 20 kms from the police station. Exhibit-P27 was prepared at 3:25 PM and immediately thereafter, within 15 minutes vide Exhibit-P29, the shirt of accused Sultan was recovered. The distance from the site of last seizure to (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (12 of 18) [CRLDR-3/2022] the site of seizure of shirt is 1 km. As per the witnesses, it is a dense forest and there are no roads to connect one place to another. The witnesses which have been produced by the prosecution were not even able to say as to what was the distance between the place of occurrence and the place of residence of accused Sultan and Chotu Lal and the places of recovery of the articles.
16. If we try to connect the links, the recovery of gents underwear on 24.12.2021 at 8:35 AM vide Exhibit-P21 has been made a ground for connecting Sultan with the alleged offence, as on the underwear, semen has been recovered, which as per the DNA report matches with the DNA profile of Sultan, however, there is no DNA matching with the victim. No site plan of the said recovery was made. In the seizure memo of the gents underwear (Exhibit-P21), the size of the underwear was not mentioned. The underwear was also not put the accused - Sultan that the same belongs to him. It is an admitted case of the prosecution that Dog Squad came on the night i.e. the date of the incident, but the Dog Squad did not point out towards any of the accused. On the next day, as per the statement of Ram Gilas (PW-22), wherein he has admitted that the gents underwear, which was recovered on 24.12.2021 at 08:35 AM vide Exhibit-P21, was sniffed by the dog and the dog barked towards Sultan & smelled him and for that reason, Sultan was detained. If this theory is to be believed, then Sultan was arrested on 24.12.2021 in the morning itself, however, as per the arrest memo, he is shown to be arrested at 5:00 PM on 24.12.2021. It is also pertinent to note that no member of the (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (13 of 18) [CRLDR-3/2022] Dog Squad Team has been made a witness or has appeared before the Court to establish that dog pointed out towards Sultan. In this regard, reliance is placed upon Abdul Rajak Murtaja Dafedar Versus State of Maharashtra: 1970 AIR 283, wherein the Supreme Court has held that it is mandatory for the prosecution to produce the member of the Dog Squad Team and his report to establish that the Dog Squad pointed out towards the accused. The gents underwear recovered has semen of accused Sultan, but that alone would not connect him with the alleged offence. The recovery of underwear is also doubtful as there is no site plan prepared for the same.
17. As far as recovery of clothes of the deceased at the instance of Sultan and recovery of payjeb (anklet) is concerned, both these informations were given on 25.12.2021 vide Exhibit-P15 at 1:20 PM by Sultan and vide Exhibit-P16 at 1:30 PM by Chotu Lal respectively. It is important to note that the recovery of kurta (Exhibit-P26), salwar (Exhibit-P28) and payjeb (anklet) in pursuance of these information was made on the next day i.e. after 25 hours of the information. No reason has been assigned as to why after receiving the information, the recovery was not effected immediately.
18. The incident took place on 23.12.2021 and the recoveries were effected on 26.12.2021. If the Dog Squad had come on 23.12.2021 and again came on 24.12.2021, as to why the Dog Squad did not point out to the articles, which have been recovered. The kurta which has been recovered did not have any blood stains and salwar, which was recovered had DNA profile of (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (14 of 18) [CRLDR-3/2022] the deceased as well as of Devraj. Both the articles did not have any DNA profile of accused Sultan. Similarly, the payjeb (anklet) which was recovered at the instance of Chotu Lal was not having any DNA profile of him and the dhoti which was recovered from Chotu Lal was not having any DNA profile of the deceased. Thus, the recovery of kurta, salwar, payjeb (anklet) and dhoti itself is under a cloud of doubt, as the same were recovered after more than 25 hours of the information given, combined with the fact that it does not connect the accused with the offence, as the DNA profile of these articles is not matching with the DNA profile of the deceased. Salwar did have the DNA profile of the deceased, but it did not have the DNA profile of Sultan.
19. Information about the shirt was given on 26.12.2021 by Sultan vide Exhibit-P64 at 9:30 AM and information about dhoti was given by Chotu Lal vide Exhibit-P66 at 10:15 AM on 26.12.2021. The recoveries of payjeb (anklet) & dhoti at the instance of Chotu Lal and shirt at the instance of Sultan were made on 26.12.2021 from the property belonging to Mohan Lal (PW-4), who has stated that in his land in one portion, Chotu Lal is staying in a tapri with his wife and in another portion, Surendra son of Gopal is staying with his family. Mohan Lal (PW-4) has also stated that Sultan used to visit Surendra, who is his brother-in- law. Surendra has not been made a witness. There is no evidence as such to suggest that Sultan was residing in the tapri on the land belonging to Mohan Lal.
20. In the dhoti of accused Chotu Lal, human semen was detected and in the payjeb (anklet) which was recovered, traces of (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (15 of 18) [CRLDR-3/2022] blood were detected. There is no DNA matching from payjeb (anklet) as incomplete female DNA profile was obtained. There is no matching of the male DNA profile obtained from the dhoti with that of the deceased. Information about the payjeb (anklet) was given on 25.12.2021 and the recovery was made after 27 hours of the information, no explanation is coming forth from the Prosecuting Agency, as to why it was not recovered on the same day. The dhoti, which was recovered, has semen stains of accused Chotu Lal, but the same is not found to be connected in any way with the DNA profile of the deceased. So far as the recovery of shirt at the instance of Sultan is concerned, the recovery was effected from the tapri in which in fact Surendra was residing. In the seizure memo of shirt i.e. Exhibit-P30, it is not mentioned that the shirt was blood stained and as per the prosecution version, accused Sultan had washed his shirt and had left it for drying and it was recovered, in that state without there being any blood stains on it. As to how the shirt of the accused contained blood stains and how mixed DNA profile was obtained, is also not clear from the evidence adduced. If the prosecution version is to be accepted, then on 24.12.2021 itself in the morning, the Dog Squad led to accused Sultan and he was apprehended on the same morning. If he was apprehended from the tapri, as to why a search was not conducted and as to why the shirt was not recovered at the same time, is also not borne out from the evidence which has been produced before the Court. The recovery of the shirt after 3 days of the arrest of accused, from the place which was already known to the Investigating Team, as accused (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (16 of 18) [CRLDR-3/2022] Sultan is said to have been arrested from the tapri on 24.12.2021, thus becomes doubtful and cannot be considered as a circumstance against the accused.
21. Moreover, in SFSL Report (Exhibit-P69), in the column under 'Packets Marked', there is no mention of any mark corresponding to Serial Nos.4 & 17, which is the vaginal swab of deceased and blood sample of deceased on the FTA Card. It is also observed that there is no evidence as to whom the blood sample of deceased on FTA Card was handed over to on 24.12.2021. It is further observed that in Malkhana Register, corresponding to column where vaginal swab of deceased is written as well as where blood sample of deceased on FTA Card is written, no mark is mentioned. It is evident that samples of deceased - blood sample & vaginal swab, based on which SFSL Report was concluded, was not marked properly. Thus, the SFSL report comes under a cloud of doubt. In Exhibit-P20, it is mentioned that sample of blood on FTA Card, public hair and penile swab was taken from accused Sultan. It is observed that there is no seizure report of the samples, which have been marked "B". It is also observed that there is no mention of the person to whom the samples were handed over to or the person, who deposied them in Malkhana.
22. The recovery of salwar and kurta at the instance of Sultan is also doubtful for the very reason that information given by him on 25.12.2021 at 1:20 PM mentions that near the place of incident, near a stone wall beneath stones and bushes, he has kept the clothes worn by the deceased. The recovery was effected after 25 hours of the said information, but it was not effected from beneath (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (17 of 18) [CRLDR-3/2022] the stones and bushes. Thus, the recovery was not effected as per the information given by the accused. The recovery being made after more than 25 hours becomes doubtful.
23. As far as pointing out to the place of incident is concerned, the place was already in the knowledge of the Investigating Team, thus no fact was discovered in consequence of the information furnished by the accused under Section 27 of the Evidence Act.
24. Thus, from the evidence which has been adduced, the recovery which has been effected in absence of independent witnesses, is under a cloud of doubt and which actually do not inspire any confidence cannot be made a ground for convicting the accused appellants. The chain of circumstances is thus not made out against accused Sultan and Chotu Lal. The Death Reference, thus deserves to be and accordingly declined and the appeals preferred by the accused appellants deserve to be allowed and the same are accordingly allowed. The judgment of conviction dated 28.04.2022 and order of sentence dated 29.4.2022 passed by the Court below are, therefore, quashed and set aside. The accused- appellants are acquitted of the charges levelled against them. They are in jail, they be set at liberty forthwith, if not required in any other case or for any other purpose.
25. Accused-Appellants 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 accused - appellants on receipt (Downloaded on 11/11/2023 at 05:46:17 PM) [2023/RJJP/010157] (18 of 18) [CRLDR-3/2022] of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
CHANDAN/JrPA
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