Rajasthan High Court - Jodhpur
Smt. Guddi Devi vs State on 30 July, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 215/2012
Balram son of Shri Khyali Ram, by caste Jat, resident of
Chohilawali, Hanumangarh Junction Police Station, District
Hanumangarh
----Appellant
Versus
The State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 276/2012
Om Prakash @ Oma son Shri Sohan Lal, aged 40 years, by caste
Bishnoi, resident of Village Nausar, Police Station Osian, District
Jodhpur, presently Saharanon Ki Dhani, Police Station
Hanumangarh Town
----Appellant
Versus
The State of Rajasthan
----Respondent
D.B. Criminal Appeal No. 513/2012
Smt. Guddi Devi W/o Shri Kalu Ram, by caste Nayak, resident of
Chohilawali, Police Station Hanumangarh Town, District
Hanumangarh
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. B.S. Rathore
Mr. R.K. Bishnoi
Mr. Bhagat Dadhich
For Respondent(s) : Mr. Anil Joshi, P.P.
Mr. J.S. Khinchi, P.P.
(Downloaded on 02/09/2019 at 12:44:35 AM)
(2 of 28) [CRLA-215/2012]
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Date of pronouncement : 30/07/2019
Judgment reserved on : 16/04/2019
BY THE COURT : PER HON'BLE MEHTA, J.
REPORTABLE The appellants Balram, Omprakash @ Oma and Smt. Guddi have been convicted and sentenced as below by the learned Additional Sessions Judge No.1, Hanumangarh vide judgment dated 15.02.2012 passed in Sessions Case No.31/2011 (33/2009):-
Names of the Offence for which Sentence awarded appellants convicted Balram Section 302 read Imprisonment for life with Section 34 IPC alongwith a fine of Omprakash @ and Section 120-B Rs.5000/- and in default Oma IPC of payment of fine, further to undergo rigorous Smt. Guddi imprisonment of five months Section 201 IPC, in Rigorous imprisonment of the alternative seven years alongwith a Section 201 read fine of Rs.1000 and in with Section 34 and default of payment of fine, 120-B IPC further to undergo rigorous imprisonment of one month.
All the substantive sentences were ordered to run concurrently.
Being aggrieved of their conviction and the sentences awarded, the appellants have preferred the instant appeals under Section 374 (2) CrPC.
Since all the three appeals are directed against a common judgment, the same have been heard together and are being decided by this common judgment.(Downloaded on 02/09/2019 at 12:44:35 AM)
(3 of 28) [CRLA-215/2012] Brief facts, relevant and essential for disposal of the appeals- are noted hereinbelow.
The complainant Shri Badri Prasad (P.W.4) lodged a complaint (Ex.P/1) in the Court of learned Additional Chief Judicial Magistrate, Hanumangarh on 25.07.2006 alleging inter alia that he had four sons, three of whom resided with him, whereas, the fourth, namely Kaluram, had built a separate house, wherein, he was residing with his family. It was further alleged that Kaluram used to earn his livelihood by doing farming jobs. His wife was of loose character. She was involved in immoral acts and was also in a habit of soliciting girls from outside the village for this purpose.
Kaluram was a simpleton and thus, he did not complain to anyone about his wife's improper behaviour. Kaluram had taken the agricultural field of Balram on a contract basis at the rate of Rs.25,000/- per annum. Kaluram used to remain at the field during the night for irrigation. In the night intervening 09.07.2006 and 10.07.2006 at about 2 o'clock, Balram, Omprakash Barmeriya and 3-4 other persons, who were in a habit of indulging in immoral acts with Kaluram's wife, were present in his house. Kaluram got a wind of these persons and returned home during night. When he reached his house, an altercation took place between them. Kaluram threatened that he would expose the accused persons, whereupon Smt. Guddi, Balram and Omprakash killed Kaluram and disposed of the dead body. The complainant kept on questioning Smt. Guddi for the whereabouts of Kaluram, but she did not divulge the truth and kept on giving evasive replies that Kaluram had gone out of the village for effecting recovery of money. The complainant, thereafter convened a Panchayat in the village, where, the Panchas namely, (Downloaded on 02/09/2019 at 12:44:35 AM) (4 of 28) [CRLA-215/2012] Aaduram, Jasveer, complainant and the other persons, questioned the accused Balram, Omprakash and Smt. Guddi, but they did not offer any satisfactory reply. Finally Balram spoke out that the matter should be covered up as whatever had happened could not be undone. The complainant suspected that the accused had indulged in foul play; killed his son Kaluram and had disposed of the dead body. When Kaluram could not be traced out for a significant period of time, the complainant's son Omprakash lodged a missing person report at the police station on 21.07.2006, but no action was taken thereon as well. Thereupon, he filed the complaint before the ACJM Court.
The complaint aforesaid was forwarded to the Police Station Hanumangarh Town for investigation under Section 156 (3) CrPC, where FIR No.397/2006 (Ex.P/51) was registered and investigation was commenced. The investigation was carried out by five different Investigating Officers, namely, Sarva Shri Anil Kumar (P.W.13), Ramkishan (P.W.14), Antar Singh (P.W.15), Mustafa Ali Jaidi (P.W.17) and Krishna Chandra Sharma (P.W.18). The Investigating Officer Antar Singh claims to have received informations from Balram and Guddi under Section 27 of the Evidence Act, which were recorded in memorandums Ex.P/43 and Ex.P/44 respectively and in alleged furtherance whereof, the dead body of Kaluram was recovered from inside a septic tank constructed in his own House vide recovery memo Ex.P/3. The statements of Sushri Manju (P.W.1) (daughter of the deceased and the accused appellant Smt. Guddi) were recorded during investigation under Section 161 as well as 164 CrPC (Ex.D/2 and Ex.D/1), wherein, she claimed to be an eye-witness of the occurrence and alleged that on the fateful night of 10.07.2006, (Downloaded on 02/09/2019 at 12:44:35 AM) (5 of 28) [CRLA-215/2012] the accused Balram and Omprakash came to their house. Some opponent of Balram and Omprakash saw them and informed her father Kaluram, who was working in the fields, upon which, he returned to the house and slapped her mother, after which, an altercation ensued. She woke up on hearing the commotion and saw her father hitting Balram and Omprakash by a small danda. Her mother started shouting that she would be beaten, upon which, Omprakash and Balram hurled an insinuation that Kaluram should be killed. Immediately thereafter, Omprakash, Balram and her mother Guddi dragged Kaluram inside the house and throttled him to death by means of a Chunni. The dead body was put into a gunny bag, which was tied from its mouth and was thrown inside the septic tank constructed behind their house. Balram and Omprakash warned Manju not to say anything about the incident to anyone and told her that if somebody inquired, then she should say that her father had gone out for the recovery of money. 3 to 4 days later, Balram posed to her grandfather to divert his attention that Kaluram was not coming to the field for doing the work. Her grandfather assured Balram that Kaluram would be sent for work as soon as he returned. The villagers were suspecting Balram to be the murderer of her father and thus, the report was lodged. Police came to their house and made an enquiry, on which, she divulged the truth. Her father's dead body was recovered from the septic tank.
After concluding investigation, the Investigating Officer proceeded to file charge-sheet against accused Balram for the offences under Sections 302, 201, 120-B IPC and Section 3(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act and against accused Smt. Guddi for the offences under (Downloaded on 02/09/2019 at 12:44:35 AM) (6 of 28) [CRLA-215/2012] Sections 302, 201 and 120-B IPC in the Court of Additional Chief Judicial Magistrate, Hanumangarh. Investigation was kept pending against the accused Omprakash under Section 173(8) CrPC. Since the offence under Section 3(2) of the SC/ST Act was exclusively triable by the court of Special Judge (SC/ST Act Cases), the case was committed and transferred to the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Hanumangarh for trial. By the order dated 7.5.2007, the learned Special Judge discharged the accused Balram from the charge under Section 3(2)(v) and 3(2)(x) of the SC/ST Act and the case was taken up by the Sessions Judge for trial as a regular Sessions case. Learned Sessions Judge, Hanumangarh framed charges against the accused Balram and Smt. Guddi for the offences under Sections 302, 201 in the alternative 302, 120-B/34 and Section 201, 120-B/34 IPC.
In the meantime, a supplementary charge-sheet came to be filed against the accused Omprakash in the Court of the learned Additional Chief Judicial Magistrate, Hanumangarh for the offences under Section 302, 201, 120-B IPC and 3(2) of the SC/ST Act. The case of Omprakash was also committed to the Court of learned Sessions Judge, Hanumangarh and ultimately charges were framed against him as well in the similar terms as those against the accused Balram and Smt. Guddi.
All the accused pleaded not guilty and claimed trial. After four witnesses had been examined by the learned Sessions Judge, Hanumangarh, the case was transferred to the Court of learned Additional Sessions Judge (Fast Track) No.3, Hanumangarh, from where the same was received by the learned Additional Sessions Judge No.1, Hanumangarh for trial. (Downloaded on 02/09/2019 at 12:44:35 AM)
(7 of 28) [CRLA-215/2012] A total of 18 witnesses were examined and 52 documents were exhibited by the prosecution in its quest to bring home the charges against the accused. Upon being confronted with the prosecution allegations in their statements under Section 313 CrPC, the accused denied the same and claimed to have been falsely implicated for oblique motive. However, no oral evidence was led in defence. Upon hearing and considering the submissions advanced by the counsel for the parties and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence, this appeal.
Sarva Shri B.S. Rathore, R.K. Bishnoi and Bhagat Dadhich, appearing for the accused appellants Balram, Omprakash and Smt. Guddi respectively, vehemently and fervently contended that the entire prosecution case is based on fabricated evidence. The accused appellants have been falsely implicated in this case owing to oblique motives. The FIR was lodged after significant delay through a complaint filed after more than 15 days of the incident. No explanation is forthcoming for this significant delay in lodging the FIR. The statement of Sushri Manju (P.W.1), being the daughter of the appellant Smt. Guddi and the deceased Kaluram, implicating the accused appellants herein, upon which, the learned trial court placed implicit reliance, is full of embellishments, contradictions and falsifies and is thus, unworthy of credence. It was further contended that even after having seen the entire sequence of events with her very own eyes, she disclosed the same to her relatives including her brother Sandeep, only after 10 days of the incident, which makes her testimony unnatural and unreliable. They further urged that the evidence of Aaduram (Downloaded on 02/09/2019 at 12:44:35 AM) (8 of 28) [CRLA-215/2012] (P.W.2) and Nikka Singh (P.W.3), who were portrayed to be the witnesses regarding the circumstance of last seen, is totally unreliable. They further contended that the testimony of the witness Bhagirath (P.W.8), who stated that he provided assistance for lodging a missing person report five to seven days after Kaluram went missing, is not substantiated because no such report was proved by the prosecution. They also urged that the deposition of the witness Badri Prasad (P.W.4) regarding the extrajudicial confession allegedly made by the accused persons in presence of the Panchayat is not corroborated in material particulars because no other witness of the Panchayat was examined in evidence to support this theory. They also drew the court's attention to the statement of Omprakash (P.W.9), being the brother of the deceased, who did not make any such assertion that the accused made an extrajudicial confession in presence of Panchayat. They further contended that the entire process of recovery of dead body allegedly carried out by the Investigating Officer is nothing but a piece of fabrication. They contended that the Investigating Officer took the requisite informations under Section 27 of the Indian Evidence Act from Guddi and Balram on 03.08.2006, which were recorded in memos Ex.P/44 and Ex.P/43 respectively and in furtherance thereof, got the dead body of the deceased Kaluram recovered. Thus, in view of the testimony of Manju (P.W.1) and Badri Prasad (P.W.4) and their admission that Guddi was apprehended right after lodging of the Missing Person Report, entire procedure of recovery of the dead body at the instance of the accused and in furtherance of the information provided by them to the Investigating Officer comes under a shadow of doubt. They, thus, implored the court to accept the (Downloaded on 02/09/2019 at 12:44:35 AM) (9 of 28) [CRLA-215/2012] appeal, set aside the impugned judgment and acquit the accused appellants of the charges.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the evidence of eye-witness P.W.1 Manju and P.W.4 Badri Prasad, father of the deceased in whose presence the accused made an extrajudicial confession; the circumstance that the dead body of Kaluram was recovered from the septic tank built inside his house in furtherance of the information provided by the accused persons under Section 27 of the Evidence Act, and the evidence of P.W.2 Aaduram and P.W.3 Nikka Singh who proved the presence of the accused in the house of the deceased on the fateful night conclusively points towards the guilt of the accused appellants. Learned Public Prosecutor further submitted that Sushri Manju has given clear evidence regarding the illicit relations prevailing inter se between the accused Balram, Omprakash and her mother Guddi. Kaluram was opposed to this relationship and when he threatened to expose the same, the accused took the extreme step of eliminating him by strangulation. The fact that the dead body of Kaluram was recovered from the septic tank stuffed in a gunny bag with the neck tied up with the Chunni of the appellant Smt. Guddi has been duly proved by the Investigating Officer and other Panch witnesses and is by itself sufficient to affirm the guilt of the accused. The fact that the complainant made regular enquiries about the whereabouts of Kaluram and the accused Balram, Omprakash and Smt. Guddi kept on misleading him and threw him off the trail by giving false replies also provides a strong link of circumstantial evidence against them. He urged that Manju was a child aged 15 years at (Downloaded on 02/09/2019 at 12:44:35 AM) (10 of 28) [CRLA-215/2012] the time of the incident. She was shocked by the gruesome incident involving murder of her father and thus, her delayed disclosure of the incident is explicable and justifiable because her mother being the prime accused continued to remain in the house with Manju. Thus, Manju was prevented from divulging about the incident for genuine reasons. He, thus, implored the court to dismiss the appeal and affirm the impugned judgment.
We have given our thoughtful consideration to the submissions advanced at bar, gone through the impugned judgment and minutely and threadbare re-appreciated the evidence available on record.
A few facts are admitted from the evidence available on record and are summarized hereinbelow for the sake of ready reference :-
1. That the deceased Kaluram had taken the field of Balram on rental basis and was cultivating the same.
2. That Balram used to frequent the house of Kaluram and so did Omprakash.
3. That Kaluram went missing and his dead body was recovered from the septic tank constructed in the backyard of his own house on 03.08.2006.
4. That his wife, the accused Smt. Guddi, allegedly gave evasive replies to the complainant and the other witnesses regarding the whereabouts of her husband. Likewise, the accused Balram and Omprakash too tried to mislead the complainant in this regard and even managed to get filed a frivolous missing person report.
5. After the matter was reported to the police, the child witness Sushri Manju gave a detailed statement (Ex.D/2) dated (Downloaded on 02/09/2019 at 12:44:35 AM) (11 of 28) [CRLA-215/2012] 07.08.2006 to the police, wherein she narrated the sequence of events leading to the murder of her father.
Now we proceed to give a brief reference of the witnesses relied upon by the prosecution. The prime witness of the prosecution is none other than Mst. Manju (P.W.1), the daughter of the deceased Kaluram and the accused Smt. Guddi. The relevant parts of the statement of Sushri Manju, on which the prosecution relies upon are reproduced hereinbelow for the sake of ready reference :-
";g ckr jkr dh gSA 12&12&1@2 cts cyjke vkSj vkseizdk"k gekjs ?kj vk;s ml le; eSa vkSj esjh ekrk ?kj ij FkhA esjs firk [ksr esa x;s Fks og [ksr cyjke dk FkkA lk<s ckjg cts ds djhc vkseizdk"k vksj cyjke gekjs ?kj ij vk x;s FksA cyjke vkSj vkseizdk"k dk fojks/kh gekjs ?kj ij cyjke vkSj vkseizdk"k dks ns[kdj esjs firk ds ikl [ksr esa x;s FksA ml fojks/kh us esjs firk dks tkdj crk fn;k Fkk fQj esjs firk vdsys gh gekjs ?kj ij vk;s FksA vkSj vkrs gh esjs firk us esjh ekrk ds pkVs yxk;s Fks fQj gekjs ?kj esa jksyk gqok rks eSa tkx xbZ FkhA esjs firk ds ikl esa ,d NksVk lk M.Mk Fkk tks esjs firk us cyjke vkSj vkseizdk"k ds ,d ,d M.Mk yxk fn;k Fkk fQj esjh ekrk jksus yx xbZ Fkh fQj esjh ekrk us dgk fd ;g esjs dks vkt ekjsaxs fQj vkseizdk"k vkSj cyjke us esjh ekrk dks dgk fd bldks vkt ge [kRe dj nsrs gS rsjs ij dksbZ Hkkj ugha vkosxk fQj eSa jksus yx xbZ FkhA fQj esjs firk dks vkseizdk"k vkSj cyjke us esjh ekrk us [khap dj vUnj dejsa esa ys x;s Fks eSa mudks lkeus cSBh ns[k jgh Fkh fQj esjs firk dks pqUuh ls xyk nckdj ekj fn;k FkkA pqUuh esjs ekrk ds ikl ls yh FkhA fQj vkseizdk"k vkSj cyjke o esjh eEeh us esjs firk dh yk"k dks cksjs esa Mky nh Fkh cksjs dk eqag cka/k fn;k Fkk fQj gekjs ?kj ds ihNs cuh dqbZ esa esjs firk dh yk"k dks Mky fn;k Fkk fQj cyjke vkSj vkseizdk"k us esjs dks /kedh nh Fkh fd rsjs dks bl ckjs esa dqN ugha crkuk gS dksbZ iwNs rks dguk fd esjs firk iSls ysus ds fy;s ckgj x;k gqok gSA fQj rhu pkj fnu ckn cyjke us esjs nknk dks tkdj dgk fd dkywjke esjs [ksr esa dke djrk gS tks ikap lkr fnu ls esjs ikl dke djus ds fy;s ugha vk jgk gS mldk tkdj irk djksA fQj esjs nknk vkSj esjs pkpk nksuksa us vyx vyx xkao esa tkdj mldks <aw<us yx x;s Fks fQj esjs nknk us dgk fd cyjke tc esjk iq= vk tkosxk rks mldks rsjs ikl dke ij Hkst nsaxsA fQj xkao okys esjs firk dh (Downloaded on 02/09/2019 at 12:44:35 AM) (12 of 28) [CRLA-215/2012] gR;k dk "kd cyjke ds Åij dj jgs FksA fQj xkao okyksa us Fkkus esa tkdj fjiksVZ ntZ djokbZ FkhA fQj gekjs ?kj ij iqfyl vkbZ Fkh vkSj gekjs ls iwNrkN dh FkhA fQj eSaus iqfyl dks lkjh ckr lgh lgh crk nh FkhA iqfyl us esjs dks esjs firk dh yk"k Hkh fn[kkbZ FkhA iqfyl us esjs firk dh yk"k dks dqbZ ls fudkyh FkhA"
The defence relies upon certain admissions elicited in the cross-examination of this witness, which are also being reproduced hereinbelow for ready reference :-
"eaSus Fkkus esa tkdj esjs firk ds dRy ds ckjs esa izkFkZuk i= fn;k FkkA og izkFkZuk i= Fkkus ds lkeus ls gh fy[kokbZ Fkh ftl le; izkFkZuk i= Fkkus esa nsus ds fy;s xbZ ml le; esjs lkFk vkseizdk"k] vknwjke] rqyNkjke vkSj Hkh xkao ds dbZ vkneh FksA esjs firk dk dRy dk irk yxrs gh eSaus Fkkus esa izkFkZuk i= ns fn;k Fkk fQj Fkkusnkj gekjs lkFk gh xkao esa vk;s FksA Fkkusnkj us esjs] vknqjke] vkseizdk"k] rqyNkjke o xkao ds vU; vknfe;ksa ds c;ku ys fy;s FksA ml izkFkZuk i= esa eSaus esjs firk ds dRy gksus dh ckr fy[kokbZ Fkh eSus eqfYteku ds uke Hkh fy[kok fn;s FksA eSus esjs HkkbZ lUnhi dks esjs firk dk dRy eqfYteku }kjk djus ds ckr igys ugha crkbZ Fkh D;ksafd lUnhi igys chekj jgrk Fkk eSaus dbZ fnu ckn lUnhi dks ckr crkbZ FkhA eSaus lUnhi dks dRy dh ckr nq?kZVuk ds 10&15 fnu ckn crk nh FkhA eSus ?kVuk ds 10 fnu ckn esjs nknk cnzhjke] vknwjke] esjs pkpk vkseizdk"k] ikykjke o eksdu o xkao ds ljiap dks dRy dh ckr crk nh FkhA esjs }kjk dRy dh ckr crkus ds ckn esjs pkpk vkseizdk"k] vknwjke esjs dks Fkkus esa ys x;s Fks vkSj mijksDrkuqlkj izkFkZuk i= eSaus Fkkusnkj dks is"k dj fn;k FkkA "
"eSaus esjs c;ku izn"kZ Mh 1 o izn"kZ Mh 2 eqfYteku cyjke o vkseizdk"k }kjk esjs dks /kedh nsuk fd rsjs dks bl ckjs esa dqN ugha crkuk gS dksbZ iwNs rks dguk gS fd esjs firk iSls ysus ds fy;s ckgj x;k gqok gS ;g fy[kk fn;k Fkk fd ijUrq blesa D;ksa ugh fy[kk gS ;g esjs dks irk ugha gSA eSaus esjs c;ku izn"kZ Mh 1 o izn"kZ Mh 2 esa ;g fy[kk fn;k Fkk fd rhu pkj fnu ckn cyjke us esjs nknk dks tkdj dgk fd dkywjke [ksr esjs dke djrk gS ijUrq og ikap lkr fnu ls esjs ikl dke djus ds fy;s ugha vk;k gS mldk tkdj irk djks ijUrq blesa D;ksa ugha fy[kh gS ;g esjs dks irk ugha gSA"
"esjs dkdk us Hkh Fkkus esa tkdj fjiksVZ ntZ djokbZ Fkh mldk uke vkseizdk"k FkkA ml le; eSa Hkh esjs pkpk ds lkFk Fkkus esa xbZ FkhA ;g lgh (Downloaded on 02/09/2019 at 12:44:35 AM) (13 of 28) [CRLA-215/2012] gS fd esjs dkdk vkseizdk"k us Fkkus esa tkdj xqe"kqnk dh fjiksVZ ntZ djokbZ FkhA eSus tc Fkkus esa fjiksVZ ntZ djokbZ Fkh ml le; esjs c;ku iqfyl us fy;s FksA tc esjs firk dh yk"k feyh Fkh mlh fnu esjs c;ku iqfyl us fy;s FksA eq>s irk ugha gS fd oks fojks/kh dkSu Fkk tks esjs firk dks cqykus ds fy;s x;k Fkk D;ksafd og fojks/kh gekjs ?kj ij ugha vk;k FkkA "
"vkt esjs nknk] esjk pkpk vkseizdk"k Hkh lkFk esa vk;s gSA ikap N% fnu igys esjs c;ku gqos Fks] ml le; Hkh ;g yksx vk;s FksA esjs dks llqjky ls ykuk ys tkuk esjs pkpk vkseizdk"k gh djrs gSA ;g dguk xyr gS fd eSaus esjs nknk o esjs pkpk ds dgus ls eqfYte cyjke dk uke dRy djus esa >wBk fy[kok;k gksA ;g lgh gS fd esjs c;ku igys eftLVªsV lkgc ds le{k gqos FksA ;g lgh gS fd ml c;ku izn"kZ Mh 1 ij esjs gLrk{kj Hkh fd;s FksA ml le; esjs Åij eftLVªsV lkgc us dksbZ nckc ugha Mkyk FkkA eSaus esjs c;ku izn"kZ Mh 1 esa esjh ekrk xqMMh dk uke eftLVªsV lkgc dks fy[kok;k Fkk ijUrq mUgksaus D;ks ugha fy[kk gS ;g esjs dks irk ugha gSA ;g dguk xyr gS fd eSus esjs c;ku izn"kZ Mh 1 ls bl vnkyr esa eq[; ijh{kk ds c;kuksa esa iwoZ esa gqos c;kuksa dk lq/kkj djds vkSj c<kp<k djds viuh ekrk xqM~Mh dk uke fy[kok;k gksA ;g dguk xyr gS fd eSaus bl vnkyr esa vius c;ku esjs lkFk vk;s yksxksa ds nckc eas vkdj fn;s gksA "
";g lgh gS fd esjs firk dh gR;k dh ckr esjs HkkbZ lUnhi vkSj esjh cfgu dks ugha crkbZ FkhA esjs firk dh gR;k dh ckn rd eSa esjs ekrk ds ikl pksfgykokyh esa jgh FkhA bl nkSjku eSaus fdlh vMkslh iM+kslh dks vius firk dh gR;k ds ckjs esa ugha crk;k FkkA"
";g dguk xyr gS fd eSus ?kVuk ds jkst vius firk dks blfy;s uk cpk;k gks fd ?kVuk ds le; esjh Hkh dksbZ ekSu Lohd`fr gksA esjs nknk dks tc esjs firk thfor Fks ml le; esjs nknk vkSj pkpk dk gekjs ?kj ij vkuk tkuk ugha FkkA ;g lgh gS fd esjs firk dh e`R;q ds ckn esjs nknk vkSj esjs pkpk gekjs ?kj ij vkus tkus yx x;s gS] ;g lgh gS fd bl vnkyr esa dqN fnu igys eS vius c;ku nsus ds fy;s vkbZ Fkh ml le; eSa vius llqjky ds ikl ls gh vkbZ FkhA fiNyh ckj esjs lkFk djhc 40&50 vknfe;ksa o rhu pkj vkSjrsa Hkh vk;s FksA"
";g ckr lgh gS fd tc eSa izn"kZ Mh&1 C;ku nsus vkbZ Fkh rc iqfyl eq>s vius lkFk ysdj vkbZ FkhA eq>s iqfyl okyksa us Fkkus esa 9&10 cts cqyk;k FkkA eq>s iqfyl okyksa us Fkkus esa esjs C;ku eq>s i<+dj lquk;s FksA (Downloaded on 02/09/2019 at 12:44:35 AM) (14 of 28) [CRLA-215/2012] iqfyl okyksa us eq>s dgk Fkk fd ge tks C;ku vkidks le>k jgs gSa oks C;ku vkidks eftΠlkgc ds lkeus nsus gSA tks C;ku eq>s Fkkusnkj us le>k;s Fks ogh C;ku eSaus eftΠlkgc dks fn;s FksA Fkkusnkj }kjk le>k;s x;s C;kuksa ds vykok eSaus vyx ls dksbZ ckr ugha crkbZA eSaus bl U;k;ky; esa tks eSaus igys C;ku fn;s Fks mlesa ;g fy[kk;k Fkk fd vkseizdk"k eqyΠus eq>s /kedk;k Fkk fd vxj rwus fdlh dks ?kVuk dh ckr crkbZ rks eS rq>s ekj nwaxkA ;g ckr eSus iqfyl c;ku izn"kZ Mh&2 o eftΠlkgc ds fn;s x;s le{k c;ku izn"kZ Mh&1 esa fy[kkbZ Fkh ijUrq izn"kZ Mh&1 o Mh&2 esa bl rjg D;ksa ugha fy[kk x;k eq>s irk ughaA eSaus rks eftΠlkgc dks Hkh izn"kZ Mh&1 nsrs le; ;g ckr crkbZ Fkh ijUrq eftΠlkgc us ;g rF; D;ksa ugha fy[kk eq>s irk ughaA ;g ckr lgh gS fd eS o esjk HkkbZ lanhi Ldwy esa gksrs Fks blfy;s ge nksuksa HkkbZ cguksa us eqyfte cyjke o vkseizdk"k dks fnu esa gekjs ?kj esa vkrs gqos ugha ns[kkA izn"kZ Mh&2 dk fgLlk , ls ch esjh ekrk us esjs HkkbZ o esjh cgu lquhrk dks ;s rF; 7&8 fnu ckn crk fn;s FksA iqfyl esjs firk ds dRy gks tkus ds 4&5 fnu ckn esjh ekrk xqM~Mh dks Fkkus esa ys xbZ Fkh tks esjs firk ds dRy ds lEca/k es ys xbZ FkhA"
";s tks eSaus uke Åij crk;s gS ,oa esjs pkpkvks o nknk us esjs firk ds dRy gksus 3&4 fnu ckn esjs firk dks <wa<uk "kq: dj fn;k Fkk vkSj esjs nknk o pkpkvksa dk gekjs ?kj vkuk pkyw gks x;k Fkk rFkk gekjk Hkh gekjs pkpkvksa o nknk ds ?kj vkuk tkuk pkyw gks x;k FkkA "
(Emphasis supplied) Aaduram (P.W.2) gave evidence about circumstance of last seen against the accused appellants Balram and Omprakash. He alleged that he saw the accused Balram and Omprakash going inside the house of Kaluram at about 10 o'clock in the night. About 1 - 1½ hours later, Kaluram also came to his house. After some time, cries of "eka ekj fn;k eka ekj fn;k" were heard from the house of Kaluram. In the morning at about 4-5 o'clock, when the chants started from Gurudwara, he saw the accused Balram and Omprakash coming out of the house of Kaluram. The witness was confronted with his statement (Ex.D/3) recorded under Section (Downloaded on 02/09/2019 at 12:44:35 AM) (15 of 28) [CRLA-215/2012] 161 CrPC, wherein it is not mentioned that he saw the accused entering the house of Kaluram at 10 o'clock. In this statement, the time when the accused allegedly entered Kaluram's house is mentioned as 12 o'clock. A contradiction was also elicited regarding the chants from the Gurudwara because in the statement under Section 161 CrPC, the witness stated that Bhajans were being chanted in the temple at 4 o'clock in the morning when Balram and Omprakash were seen coming out of the house of Kaluram. This witness also admitted that Kaluram's father is his brother. If this fact is considered, the silence of this witness for a period of nearly 28 days despite the fact that all the family members were looking out for Kaluram makes his testimony doubtful.
Nikka Singh (P.W.3) also gave evidence akin to what was deposed by Aaduram. In his cross-examination, the witness admitted that a day before the dead body of Kaluram was recovered, he as well as Aaduram were taken to the police station and were kept there overnight. Thus, for the same reason the testimony of this witness becomes doubtful.
Badri Prasad (P.W.4) is the first informant of the case and the father of the deceased Kaluram. He gave evidence in line of the allegations set out in the FIR. The witness was also subjected to lengthy cross-examination. Certain facts, which were stressed upon by the defence counsel as elicited in the cross- examination of the witness are reproduced in verbatim :-
"eSaus tks vkt U;k;ky; es ckrsa crkbZ gS ;s bLrxklk izn"kZ ih&1 nk;j djrs le; odhy lkgc dks crk nh FkhA eSaus izn"kZ ih &1 bLrxklk esa eatw ls iwNus ij mlus lkjh ?kVuk dh ckr crkbZ Fkh fy[k nh FkhA eq>s irk ugha fd izn"kZ ih&1 bLrxklk esa ;s ckr D;ksa ugh fy[kh xbZA "(Downloaded on 02/09/2019 at 12:44:35 AM)
(16 of 28) [CRLA-215/2012] ";g dguk xyr gS fd eatw ds crkus ds ckn izn"kZ ih&1 bLrxklk esa blfy;s u gks fd eatw us eq>s dksbZ rF; u crk;s gksaA tc geus xqe"kqnk dh fjiksVZ Fkkus esa ntZ djokbZ Fkh rks iqfyl xkao esa vkbZ FkhA vt [kqn dgk fd gesa iqfyl us dksbZ U;k; ugha fn;k FkkA iqfyl ml le; xqM~Mh dks vius lkFk ys xbZ FkhA tc rd dqbZ ls yk"k fudkyh xbZ ml le; rd xqM~Mh iqfyl ds ikl gh muds dCtk esa jgh FkhA"
"eatw }kjk eq>s esjs yM+ds dkyqjke dks eqyΠcyjke] vkseizdk"k o xqM~Mh }kjk tku ls ekjus dh ckr eSaus esjs iqfyl C;ku izn"kZ Mh&5 esa crk fn;k FkkA ;g ckr izn"kZ Mh&5 esa D;ksa ugha fy[kh eSa ugha dg ldrkA eSaus tc bLrxklk izn"kZ ih&1 dksVZ esa is"k fd;k rc vius odhy lkgc dks ;g ugha crk;k fd eatw us eq>s ;g crk;k fd dkyqjke dks rhuksa eqfYteku us tku ls ekjk FkkA"
The witness admitted in his cross-examination that he did not see the incident and the entire narration in the complaint (Ex.P/1) was made on the basis of the information supplied to him by Sushri Manju. Pertinent answer was elicited in the cross- examination of the witness that soon after the missing person report was lodged at the police station, the police came to the village and took Guddi away with them and she remained in the custody of the police till the dead body was recovered from the septic tank. He further admitted that after the missing person report was lodged, the police came to their village and made enquiries from him, his brother Aaduram, Nikka Singh, his son Omprakash, Kaluram's daughter Manju, Tulchharam and Lichhman. The police also took Mst. Manju with them at that time. When the dead body was taken out, the police officers brought Manju and Guddi with them. The witness admitted that he did not mention in the written complaint (Ex.P/1) that Manju told him the entire sequence of events leading to the death of Shri Kaluram.
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(17 of 28) [CRLA-215/2012] On a perusal of the written complaint (Ex.P/1), it is clear that there is not even a whisper in this complaint that the entire sequence of events narrated therein was being stated on the basis of the information provided by Sushri Manju.
Laxman Ram (P.W.5) stated that he is resident of Ward No.5, Chohilawali. Kaluram is resident of Ward No.3. Kaluram was killed by Guddi and Balram. A case was registered with the police. The police brought Guddi and Balram at the spot. Both of them stated that they had thrown the dead body of Kaluram in the septic tank, which was recovered on being pointed out by them. The memorandum Ex.P/3 regarding recovery of dead body and memorandum Ex.P/4 regarding recovery of the shoe, chunni and gunny bag were prepared, on which the witness appended his signatures. In cross-examination, the witness admitted that the police dredged out the dead body at 10-11 o'clock in the morning. The entire process was completed by 4 o'clock in the evening. He did not see the incident taking place.
Het Ram (P.W.6) also gave evidence akin to what was stated by Laxman Ram (P.W.5). He too attested the recovery memos Ex.P/3 and Ex.P/4.
Tulchha Ram (P.W.7) deposed that Badriprasad came to his house about 3 years ago and told him that his son Kaluram's wife was of bad character and that she had conspired with some other persons and killed Kaluram. He requested the witness to go and lodge the case. When they were proceeding for this purpose, Balram met them. He suggested that a missing person report should be lodged. He also suggested that Kaluram was alive and assured of bringing him back. On this intervention of Balram, rather than lodging a report of murder, a missing person report (Downloaded on 02/09/2019 at 12:44:35 AM) (18 of 28) [CRLA-215/2012] was lodged at the Police Station Hanumangarh Town. Balram thanked the witness for lodging of the missing person report. Balram also requested that he was ready to spend money to settle the issue with Kaluram's father. In cross-examination, the witness was confronted with various omissions appearing in his examination-in-chief vis-a-vis his police statement Ex.D/6. On examining the same, we find that the entire deposition, which the witness made in his examination-in-chief, is an improved version from what he stated to the police during investigation, thus, making his testimony doubtful.
Bhagirath (P.W.8) stated that Omprakash approached him about 3 years ago and complained that his brother Kaluram was missing since last 5 to 7 days and expressed a suspicion that Kaluram might have been killed by his wife Guddi and requested the witness to help him out. Upon this, the witness approached Balram and confronted him with this circumstance. Balram suggested that a missing person report should be lodged rather than filing a report of murder. They lodged the missing person report at the Police Station Hanumangarh. 4 to 5 days later, Balram and Guddi were brought by the police to the Village Chohilawali and in presence of police, Guddi, Balram and Omprakash confessed that they had killed Kaluram and had thrown his body in the septic tank. The police thereafter got the dead body of Kaluram dredged out from the septic tank with the aid of a sweeper. In cross-examination, the witness was confronted with his previous statement Ex.D/7, more particularly, the portion thereof with reference to the improvements, which he made from such statement while deposing in the court. (Downloaded on 02/09/2019 at 12:44:35 AM)
(19 of 28) [CRLA-215/2012] Omprakash (P.W.9), being the brother of the deceased Kaluram, stated that Kaluram was his eldest brother. He and his two other brothers Palaram and Momanram lived with their father. They were having 12 bighas of total land, of which, one bigha was being cultivated by Kaluram. Kaluram was a simpleton. He used to work in the field of Balram during day time and in the night time, he used to guard the same. Balram and Badmeriya used to visit the house of Kaluram in the night. Kaluram objected to their visits and there was a tussle between the husband and wife owing to the same. Kaluram went missing and a few days later, Balram met him and complained that Kaluram was not coming to the fields. He went and enquired from Guddi, who told him that Kaluram had gone to Bisarsar for selling his land. He suspected that Guddi might have got Kaluram killed. They approached the Sarpanch of the village, namely, Bhagirath, who called Balram and on Balram's suggestion, a missing person report was lodged. The police did not conduct investigation in a fair manner, whereupon, they were compelled to lodge a complaint. A few days later, the police came to the village. Balram and Guddi confessed before the police that they had killed Kaluram and had thrown his dead body in the septic tank. The dead body was dredged out and various documents were prepared. In cross-examination, the witness admitted that he used to regularly visit Kaluram's house. 5 to 7 days before the dead body was recovered, he went there. Manju was present in the house. He was confronted with his previous statement Ex.D/8, wherein there was no reference to the fact that numerous men used to frequent the house of Kaluram and that he would scold Guddi for soliciting them. Various other omissions and contradictions were elicited in the cross- (Downloaded on 02/09/2019 at 12:44:35 AM)
(20 of 28) [CRLA-215/2012] examination of this witness with reference to his previous statement Ex.D/8.
Maniram (P.W.10) was the Malkhana incharge of the Police Station Hanumangarh Town. He gave evidence regarding deposition of various samples seized by the Investigating Officer and forwarding thereof to the FSL.
Rajendra Prasad (P.W.11) took photographs of the scene of occurrence at the Village Chohilawali on 03.08.2006 on the request of the police.
Dr. Jaspal Badpagga (P.W.12) was posted as the Medical Jurist at the Government Hospital, Hanumangarh Town on 03.08.2006. He conducted postmortem on the dead body of Kaluram and opined that it was in an advanced stage of decomposition and was stinking. The bones had fallen apart. The brain was liquified. The board could not give any opinion regarding the cause of death because of the advanced stage of decomposition of the body.
Anil Kumar (P.W.13) and Ramkishan (P.W.14), conducted a part of investigation.
Antar Singh (P.W.15) was posted as the SHO, Police Station Hanumangarh Town on 03.08.2006. He was assigned the investigation of FIR No.397/2006, which had previously been investigated by Anil Mund. He conducted investigation and claimed that he summoned and arrested the accused Balram and Guddi Devi, who confessed to the murder of Kaluram and stated that they alongwith Omprakash were responsible for murder of Kaluram. They also divulged that they had thrown the dead body in the septic tank. He proved the arrest memo of the accused Balram and Guddi. He also proved the information memos (Downloaded on 02/09/2019 at 12:44:35 AM) (21 of 28) [CRLA-215/2012] Ex.P/43 and Ex.P/44 given by the accused Balram and Guddi respectively regarding concealment of the dead body of Kaluram in the septic tank. The dead body was dredged out from the septic tank on being pointed out by the accused. The process was photographed. Recovery memo of the dead body (Ex.P/3) was prepared, on which the seizure officer, the attesting witnesses and the accused appended their signatures. The incriminating articles were seized. The dead body was sent to the Government Hospital for postmortem. The witness filed a charge-sheet against Balram, Guddi and Omprakash. In cross-examination, the witness admitted that he did not notice any blood stains etc. at the scene of occurrence. The latrine was constructed in the back of the house and outside the main premises. The witness admitted that he did not collect and take the missing person report on record during investigation. The documents pertaining to the enquiry of the missing person report were neither collected nor placed on record.
Hasta Ram (P.W.16) was posted as a Constable at the Police Station Hanumangarh Town. He carried the samples to the FSL from the Police Station Hanumangarh Town.
Mustafa Ali Jaidi (P.W.17) was posted as the C.O., Hanumangarh at the relevant point of time. He conducted a part of the investigation of the case; arrested the accused Omprakash, recorded his information under Section 27 of the Evidence Act (Ex.P/49) and then handed over the investigation to C.O. Sohan Lal.
Krishna Chandra Sharma (P.W.18) registered the FIR on the basis of the complaint received from the court of the ACJM, Hanumangarh. He admitted in his cross-examination that a (Downloaded on 02/09/2019 at 12:44:35 AM) (22 of 28) [CRLA-215/2012] missing person report had been registered before the FIR came to be lodged. However, it was admitted that the missing person report was never taken on record.
We have minutely sifted through the evidence available on record and have reproduced the salient features from the evidence of the witnesses. The most significant fact, which requires a mention at this stage, is that admittedly the incident took place in the night intervening 09.07.2006 and 10.07.2006. The brother of the deceased, namely, Omprakash, admitted that he lodged a missing person report at the Police Station Hanumangarh and the prosecution has raised a big issue regarding the hand of the accused Balram in lodging this missing person report. The police conducted enquiries and recorded the statements of the witnesses. Manifestly, Manju, being the daughter of the accused appellant Guddi and the deceased Kaluram, must have been examined during the course of inquiry and her first statement would be a vital piece of evidence. However, for the reasons best known to the prosecution, the missing person report and the statements recorded during enquiry thereof were concealed and intentionally not brought on the record. The first report of a man going missing would have given significant insight into the true facts of the case, but the intentional withholding thereof by the prosecution deserves drawing of adverse inference in this regard. Thus, we have no hesitation in holding that the prosecution intentionally withheld the missing person report and acted in an unfair manner. The first informant Badriprasad got the FIR (Ex.P/51) registered through a complaint (Ex.P/1). In his sworn testimony, Badriprasad categorically mentioned that the entire sequence of events set out (Downloaded on 02/09/2019 at 12:44:35 AM) (23 of 28) [CRLA-215/2012] in the complaint was narrated to him by Sushri Manju (P.W.2), being the daughter of the accused Guddi and the deceased Kaluram. However, in this belated complaint, which came to be filed in the court as late as on 25.07.2006, there is no reference of the fact that Manju was the source of information provided to Badriprasad. This omission gains significance when we consider the significant admissions elicited in the cross-examination by Badriprasad. Badriprasad admitted in his cross-examination that soon after lodging of the missing person report, the police came to the village and took Guddi away with them. She was kept in confinement by the police till the dead body was recovered from the septic tank. Even the star prosecution witness Sushri Manju admitted in her cross-examination that 4 to 5 days after her father's murder, her mother Guddi was taken away by the police to the police station. This significant fact as elicited in the evidence of Manju and Badriprasad makes the proceedings of the missing person report vital and essential for discovery of the truth and this court has no hesitation in drawing an inference that the Investigating Officer must have interrogated and confined Guddi soon after the missing person report was lodged. However, the clandestine manner in which the process was carried out and the failure of the Investigating Officer in either registering a case of murder or formally showing the accused Guddi arrested till 03.08.2006 would bring the entire process of recovery of the dead body in furtherance of the information provided to the Investigating Officer under Section 27 of the Evidence Act under a serious cloud of doubt.
Now we proceed to discuss the evidence of the star prosecution witness Sushri Manju. Relevant parts of her testimony (Downloaded on 02/09/2019 at 12:44:35 AM) (24 of 28) [CRLA-215/2012] have already been reproduced supra. In cross-examination, the witness admitted that immediately on coming to know of her father's murder, she went to the police station and lodged an application regarding the murder of her father. At that time, numerous persons of the village, namely, Omprakash, Aduram and Tulchharam accompanied her. Manju further stated in her evidence that she disclosed the names of all the accused in the application. She also admitted that 10 days after the incident, she told her grandfather Badriprasad, uncle Omprakash and the village Sarpanch etc. about the murder. No sooner, she made this disclosure, her uncle Omprakash and Aduram took her to the police station, where she lodged the report as aforestated. This version of Manju creates a real doubt in the mind of the court as to the truth of her claim that she had actually seen the incident happening with her very own eyes. Furthermore, the application, if submitted by Manju to the police, would obviously be the actual first information report, which was withheld and concealed by the prosecution. Thus, obviously, the prosecution has not only withheld the missing person report from the court, but also withheld the said application submitted by Manju, which obviously would fall within the category of an FIR as she set out the entire details of the alleged murder of Kaluram. As a consequence, the subsequent report (Ex.P/1), which came to be lodged through a complaint, becomes totally a fabricated document, more particularly, as the name of Manju, who claimed to be the prime witness of the incident, is missing from this report. However, going by the documentary evidence placed on record by the prosecution, the first statement of Manju, in which she claimed to be an eye-witness of the incident, was recorded by the (Downloaded on 02/09/2019 at 12:44:35 AM) (25 of 28) [CRLA-215/2012] Investigating Officer on 07.08.2006 after 7 days of the lodging of the FIR. The said statement has been exhibited by the defence as Ex.D/2. Manju's statement under Sections 164 CrPC was recorded by the Judicial Magistrate on 07.08.2006 and has been exhibited by the defence as Ex.D/1. In this statement (with which she was confronted in cross-examination), she alleged that the accused Omprakash and Balram killed her father and threatened her as well as her mother Guddi of dire consequences and exhorted that they too would be killed, if they disclosed about the incident to anyone. Thereafter, she and her mother were pushed and confined into a room and were not allowed to come out. Her father's dead body was tied up in a bag and then the same was thrown inside the septic tank. If this statement is seen, manifestly, Sushri Manju tried to exculpate Guddi in this statement. However, while deposing on oath, she took a different stance and alleged that Guddi was a 'particeps criminis' with Balram and Omprakash. The fact that despite being offered numerous opportunities, Manju never divulged about the incident to her grandfather, her uncles, who were looking out for her father and the fact that she claims to have lodged a report of murder at the police station, which was not brought on record and was rather intentionally withheld; in addition to the circumstance that the witness has materially changed her stance and has given significantly contradictory statement vis-a-vis the facts stated by her to the Magistrate in her previous statement recorded under Section 164 CrPC (Ex.D/1), brings her evidence under a serious doubt and we are not inclined to place implicit reliance thereupon. In our opinion, Manju cannot be termed to be a reliable witness. Once the evidence of Manju is eschewed from consideration, the (Downloaded on 02/09/2019 at 12:44:35 AM) (26 of 28) [CRLA-215/2012] most significant circumstance, on which the prosecution case would rest, is that of the recovery of the dead body made by the Investigating Officer from the septic tank constructed in the house of the deceased allegedly on the information provided to him by the accused Balram and Guddi under Section 27 of the Evidence Act. As we have discussed above, the fact regarding Manju having been confined at the police station soon after lodging of the missing person report is far too significant so as to be brushed aside. Both Manju as well as Badriprasad have categorically stated in their evidence that Guddi was apprehended and taken to the police station soon after the missing person report was lodged and that she continued to remain in police custody till the dead body of Kaluram was dredged out from the septic tank. The attending facts of the non-production on record of the missing person report, the enquiry papers thereof and the report of murder allegedly lodged by Manju on the record of proceedings are additional factors, which bring the prosecution case under a grave cloud of doubt. If at all, the prosecution was desirous of having its evidence treated as foolproof and aboveboard, then it was under an obligation to produce these material documents for the court's appraisal. However, the intentional withholding of these documents by the prosecution deserves drawing of adverse inference and hence, the evidence regarding the recovery of dead body from the septic tank constructed behind the house of the deceased at the instance of the accused Balram and Guddi becomes doubtful and the court cannot place implicit reliance on these proceedings.
The other significant allegation, which the prosecution has attributed by way of motive to the accused is that Smt. Guddi (Downloaded on 02/09/2019 at 12:44:35 AM) (27 of 28) [CRLA-215/2012] was indulged in immoral trafficking and that various persons including the two accused Balram and Omprakash used to frequent her house for these illicit liasonings. Nonetheless, the fact remains that no such complaint was ever filed by Kaluram or any other villager regarding the amoral acts being carried out by the accused. Thus, we are not convinced with the contention of the learned Public Prosecutor that Smt. Guddi was indulged in prostitution and that Kaluram used to object this activity and hence, he was murdered. We have examined the evidence of the witnesses of circumstance of last seen, viz. Aaduram (P.W.2) and Nikka Singh (P.W.3) and find that their statements are highly contradictory. If at all Kaluram had gone missing and his family members were fervently looking out for him, then these witnesses, being the villagers, should have come forward immediately and disclosed to the complainant that they had seen the accused Balram and Omprakash going into the house of the deceased on the fateful night. Not only this, these witnesses claimed in their testimony that they heard the cries of 'Mar diya Mar diya' coming out from the house. If there was a semblance of truth in the evidence of these witnesses, their silence for such a long period of time belies their evidentiary worth and hence, we are convinced that their testimony cannot be relied upon.
If these circumstances and evidence are eschewed from consideration, there remains nothing on the entire record other than a strong suspicion created by the factum of recovery of the dead body from the septic tank against the accused. However, the law is well-settled that suspicion howsoever strong cannot take the place of proof. Having examined the impugned judgment on the anvil of the findings recorded by us after thorough re- (Downloaded on 02/09/2019 at 12:44:35 AM)
(28 of 28) [CRLA-215/2012] appreciation of the evidence, we feel that the trial court proceeded on conjectures and surmises and brushed aside the significant defence pleas and the material flaws and fatal shortcomings in the prosecution case in an absolutely casual manner and gave credence to totally unreliable pieces of evidence while convicting the accused by the impugned judgment, which does not stand to scrutiny.
As an upshot of the above discussion, the appeals deserve to be and is hereby allowed. The impugned judgment dated 15.02.2012 passed by the learned Additional Sessions Judge No.1, Hanumangarh in Sessions Case No.31/2011 (33/2009) is hereby quashed and set aside. The accused appellants are acquitted of all the charges. The accused appellants are in custody. They shall be released from prison forthwith, if not wanted in any other case.
However, keeping in view the provisions of Section 437- A CrPC, each of the acquitted accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
Pramod/-
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