Rajasthan High Court - Jaipur
Chandan Singh vs State on 6 October, 2010
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
J U D G M E N T
D.B. Criminal Appeal No.698 of 2004
Chandan Singh son of Shri Ramte and Others
V E R S U S
The State of Rajasthan
Date of Judgment :::: 6th October, 2010
P R E S E N T
Hon'ble Mr. Justice Dalip Singh
Hon'ble Mr. Justice S.S. Kothari
Mr. Harshvardhan Nandwana, for the accused-appellants.
Mr. J.R. Bijarnia, Public Prosecutor for the State
****
By the Court : (Per Hon'ble Mr. Justice Dalip Singh).
This criminal appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 has been filed by three accused-appellants viz., (i) Chandan Singh son of Shri Ragte, (ii) Chela son of Shri Ram Dayal and (iii) Laxman son of Shri Ram Prasad, who have been convicted for commission of the offence under Sections 302 and 201 I.P.C. and sentenced to life imprisonment with a fine of Rs.500/- for the offence under Section 302 I.P.C. and sentenced to two-years rigorous imprisonment, for the offence under Section 201 I.P.C. with a fine of Rs.100/- and further the accused - Chandan Singh and Chela have also been convicted for commission of the offence under Section 379 I.P.C. and sentenced to one year's imprisonment with a fine of Rs.100/- by the learned Additional District & Sessions Judge (Fast Track) No.2 Dholpur in Sessions Case No.34/200 vide its judgment dated 20th December, 2003.
Facts, in brief, are that on 31st May, 2001 the S.H.O. Police Station Sepau District Dholpur proceeded to the scene of occurrence and of reaching there he found a dead boy in the agricultural field of Siya Ram. The body was unidentified and face has been mutilated and could not be recognized. There was a mark of injury on the right side of chest and there was blood smeared soil lying with the body on the left and right side. The S.H.O. has noticed the aforesaid facts and prima-facie concluded that some unidentified person had been murdered and with a view to destroy the evidence the accused had left the body in such a state.
On this, a criminal case under Sections 302 and 201 I.P.C. was registered. The S.H.O. Shri Ranjeet Singh, PW-20 sent a written report with the constable, which is Exhibit P-23 on which the F.I.R. was later drawn at the Police Station, which is Exhibit P-24. The S.H.O. sent the body after making panchnama of the dead body for postmortem. The blood smeared soil was also recovered and the site plan of the place of occurrence was also prepared.
During the course of investigation, the accused-persons were arrested and on the information furnished by them a wrist watch, silver chain as well as the stones, which were said to be the weapon of offence were also recovered.
The police also prepared the site plan of the place of where the aforesaid recoveries were made in pursuance of the information furnished under Section 27 of the Evidence Act by the accused.
On the basis of the recovery of the wrist watch and the silver chain accused Chandan Singh and Chela were charged for commission of the offence under Sections 302, 201 and 379 I.P.C. whereas accused-appellant Laxman was charged for commission of the offence under Section 302 read with Section 201 I.P.C.
During the course of the trial as many as 23 prosecution witnesses were examined and 30 documents were got exhibited from the side of the prosecution. The defence exhibited Exhibit D-1 to D-5, the statement under Section 161 Cr.P.C. of various prosecution witnesses with which the prosecution witnesses were confronted during the course of their cross-examination.
The learned trial Court (Additional District & Sessions Judge (Fast Track) No.2 Dholpur convicted accused-appellants - Chela and Chandan for commission of the offence under Sections 302, 201 and 379 I.P.C. accused-appellant Laxman was convicted for the offence under Sections 302 and 201 I.P.C and sentenced as mentioned above. As a result of their conviction the appellants being aggrieved have preferred the present appeal.
We have heard the learned counsel for the accused-appellants - Shri Harshvardhan Nandwana as well as learned Public Prosecutor for the State - Shri J.R. Bijarnia and perused the record.
Learned counsel for the accused-appellants contended that firstly in the instant case the prosecution has failed to establish that the dead body, which was recovered was that of deceased Ramji Lal for whose murder the accused have been charged.
It was submitted by the learned counsel for the accused-appellants that for sustaining the conviction of the appellants for the murder of Ramji Lal the prosecution was required to prove that the dead body, which had been recovered was that of Ramji Lal deceased.
In this behalf, learned counsel for the accused-appellants submitted that as per the prosecution witness PW-22 Sirmor, who is a close relative and a cousin brother of the deceased, on the left hand of Ramji Lal, there was a tattoo mark with his name Ramji Lal Kushwa inscribed thereon.
The relevant portion of the statement of PW-22 Sirmor to which attention of the Court was drawn reads as follows :
"???? ??? ?? ???? ??? ?? ??? ???? ??? ??? ??? ?? ????? ??? ?????? ???? ???"
Learned counsel contended that this was an obvious mark of identify, which could not have been missed by the Investigating Officer or by the Motbir or the Panchas before whom the Panchnama of the dead body, Exhibit P-3 was prepared and in the present case it has not at all come on record that on the dead body, which was recovered any such tattoos was marked on the left hand was seen by anyone.
Learned counsel, therefore, contended that in view of the statement of PW-22 Sirmor, cousin brother of the deceased the deceased had his name tattooed on the left hand as Ramji Lal Kushwa, which evidence is missing in the present case. It cannot, therefore, be conclusively determined that the dead body, which was recovered was that of Ramji Lal for whose murder the accused-appellants have been convicted and sentenced and there is a serious doubt that the dead body was that of Ramji Lal.
Learned counsel further contended that it had come in the evidence of the prosecution that the deceased had been photographed. For this purpose, the learned counsel drew the attention of the Court to the statement of the Investigating Officer - Shri Ranjeet Singh PW-20 wherein the Investigating Officer has clearly admitted in his examination-in-chief ??? ?? ????? ????? ??? .
Learned counsel also contended that when the photographs of the deceased had been taken by the Investigating Officer it was the duty of the prosecution to have confronted the widow of the deceased and other members of his family with the aforesaid piece of photographic evidence of the dead body for the purposes of identification, as the relatives of the deceased never had the occasion to see the dead body or to identify the same.
Learned counsel for the accused-appellants further contended that despite having taken the photograph it was a material piece of evidence, which the prosecution ought to have produced at trial and for non-production of the same an adverse inference ought to be drawn against the prosecution.
Learned counsel contends that the prosecution has deliberately suppressed the aforesaid material piece of evidence from the Court so that the prosecution witnesses may not be confronted with the aforesaid evidence in Court during the course of their deposition as there was every possibility that they may not have been able to identify the dead body as that of Ramji Lal deceased thereby demolishing the prosecution case.
Learned counsel for the accused-appellants further contended that for the purposes of identification only the clothes, which were said to have been recovered from the dead body after the postmortem were relied upon by the prosecution.
Learned counsel submitted that there is no evidence of the fact that at the time when these articles, which had been sealed at the time of their seizure by the Investigating Officer, the seals were intact at the tme when the articles were shown to the prosecution witness namely Guddi PW-17 the widow of the deceased and two other prosecution witnesses and the seals were same as those of the samples taken at the time of the sealing of the packets containing the clothes of the deceased.
It is further submitted by the learned counsel that these clothes and articles were not mixed with any similar articles or clothes so as to fulfill the requirement of law for the purposes of identification.
In support of the above, the learned counsel for the accused-appellants has relied upon a Division Bench decision of this Court in the case of Plaja @ Subi @ Mahesh and Anr. Vs. State of Rajasthan, reported in 2004 (1) Cr.L.R. (Raj.) Page 8.
Learned counsel for the accused-appellants further contends that the present one is a case of circumstantial evidence and in which the learned Court below has relied upon the circumstances of last seen, recovery of clothes and the alleged stone which is said to be the weapon of offence and the wrist watch and silver chain at the instance of the accused.
In this behalf, the learned counsel for the accused-appellants has taken us through the evidence regarding last seen led by the prosecution. The prosecution has examined PW-15 Hakim Singh and PW-21 Ram Khilari for the purposes of the evidence of last seen. PW-15 Hakim Singh has stated that he along with Ram Khilari proceeded to Narpura for the purposes of purchase of stones slabs (pattis) on 27.05.2001 which was a Sunday and were returning at about 6 or 7 in the evening and when they came near Panchgaon bus stand and he and Ram Khilari were waiting for the bus to arrive they saw Ramji Lal deceased, Chandan Singh, Chela and Laxman the accused roaming around at the bus station. He deposed that he and Ram Khiladi both asked Ramji Lal as to what he was doing there on which Ramji Lal is said to have replied that he was going to Punjab for seeking employment. He further stated that he inquired from Ramji Lal deceased as to who the persons were with him and Ramji Lal is said to have disclosed the names of Chandan, Chela and Laxman to this witness. This witness further deposed that after about 15-16 days he came to know that Ramji Lal has died and he immediately realized that the accused might have murdered him. PW-21 Ram Khiladi has also given the same story as given by PW-15.
Learned counsel for the accused-appellants submitted that this story is false and drew the attention of the Court to the statement of PW-17 Smt. Guddi wife of the deceased wherein Smt. Guddi in the examination-in-chief had stated as follows : -
"??? ?? 10 ??? ?????, ???? ?? ??????? ???? ?? ?? ???? ??? ?? ???? ??? ?????? ??? ?? ??? ???? ?? ?? ???? ??? ?????? ?? ????? ??? ?? ??? ?? ?? ??? ??? ???? ??? ?? ??? ???????? ?? ???? ???? ??? ????? ??? ?? ??? ?? ??? ???? ????? ?? ??? ???? ??? ?? 12 ??? ???? ??? ?? ????? ???? ??? ?? ???? ???? ??? ?? ??? ?? ?? ?? ???? ?? ?? ????? ??? ????? ??? ??? ?? ???? ?? ?????? ??? ????? ???? ??? ???? ??? ?????? ?? ?? ?? ????? ?? ?? ?????? ??? ???? ????? ??? , ?????, ???? ?? ??????? ?? ?? ??? ???? ??---?'' Learned counsel on the basis of the aforesaid statements submitted that so far as Hakim PW-15 is concerned as per PW-17 Smt. Guddi, Hakim was already present at the house of the deceased in the presence of Smt. Guddi PW-17 when the three accused persons had allegedly come there and all four of them including the deceased Ramji Lal were making plans to go to Punjab for employment.
Learned counsel, therefore, contended that the statement of PW-15 that he met the deceased along with the accused-persons at the bus stand and it was hear that PW-15 inquired as to who these persons were from Ramji Lal deceased and the deceased disclosed the name of Chandan, Chela and Laxman to Hakim is false and contradictory in the light of the statement of PW-17 Smt. Guddi who has stated that Hakim was present at the house of Ramji Lal in the morning when the three accused-persons had come to take him for proceeding to Punjab.
From the above, it was contended that PW-15 Hakim who is a close relatives of Ramji Lal deceased the aforesaid story that Hakim Singh PW-15 saw the deceased at the bus stand with the accused is a false story which has been introduced to create the evidence of last seen.
It is submitted that Ram Khiladi PW-21 is also a close relatives of deceased Ramji Lal and is a planted witness just like PW-15. The other witness with regard to last seen is PW-22 Sirmor who is a brother of the deceased whose presence has been shown by PW-17 Smt. Guddi at her residence in the morning at the time when the accused are said to have come to the house of Ramji Lal. Sirmor has also given the same story as Smt. Guddi PW-17 stating that at about 10:00 or 10:30 A.M. in the morning of 27.05.2001 accused Chandan Singh, Chela and Laxman came to Moti Ram Ka Nagla and met Ramji Lal and asked Ramji Lal if he was willing to go to Punjab for work and Ramji Lal agreed and they leff the house at about 12:00 o'clock together.
As regards this witness the submission of the learned counsel for the accused-appellants is that this witness has also been introduced subsequently, inasmuch as this witness states as follows :-
??? ?? ???? 8 ??? ????? ???? ?? ?????????? ?????????? ?? ????? ?? ???? ??? ???? ?? ????? ??? ???? ?? ??? ?? ?? ????? ?????? ????? ?? ?? ????? ?? ??? ??? ???
Learned counsel for the accused-appellants contended that in view of the categorical statement of PW-15 Hakim Singh who is said to have met the deceased along with accused at the bus stand at Panchgaon at about 6 or 7 in the evening and on inquiring, Ramji Lal had already told them that he was going to Punjab along with the accused-persons and thereafter they had come away from the bus stand at Panchgaon in the bus.
Learned counsel for the accused-appellants further drew the attention of the Court to the statement of PW-15 in his examination in chief which is as follows :
"????? ? ???? ??? ??? ??????? ?? ????? ??? ?? ?? ???? ?? ???? ???? ??? ??? ??? ?? ???? ??? ?? ??? ????? ?????? ???? ?? ??? ????"
Learned counsel, therefore, submits that in view of the specific contradictions it is apparently clear that the theory of last seen has been introduced subsequently.
Learned counsel for the accused-appellants further contended that apart from the fact that there is an apparent contradictions in the testimony of the witnesses who have been examined on behalf of the prosecution with regard to the evidence of last seen there is also a substantial amount of delay between the time the accused were last seen with the deceased and the recovery of the dead body.
Learned counsel for the accused-appellants, therefore, contended that between the time the accused were last seen with the deceased on 27.05.2001 up to the time of the recovery of the dead body on 31.05.2001 it cannot be ruled out that the deceased did not come in contact with any other person and there was no possibility of his having coming into contact with any third person other than the accused during this period from 27.05.2001 to 31.05.2001.
In this behalf, the learned counsel for the accused-appellants relied upon the judgment of the Hon'ble Supreme Court in the case of State of Goa Vs. Pandurang Mohite, reported in A.I.R. 2009 S.C. 1067 and more particularly Paragraph 16 of the aforesaid report.
On the basis of the above, the learned counsel for the accused-appellants contended that evidence of last seen has been subsequently introduced as is apparent from the several contradictions in the statement of the witnesses of the prosecution and the fact that there was a long gap between the period when the deceased was last seen in the company of the accused and the recovery of the dead body. In view of the above, the evidence of last seen in the facts and circumstances of the present case cannot be taken to be a substantial piece of evidence against the accused-appellants for holding them guilty and must be rejected.
Learned counsel for the accused-appellants further contended that the other evidence which has been relied upon the accused appellants is in the form of recovery of the alleged weapon of offence from the seen of occurance which is said to be blood stained on the basis of the information given by the accused Chandan Singh and Laxman vide Exhibit P-10 and P-11 on 24.06.2001 under Section 27 of the Indian Evidence Act.
Learned counsel for the accused-appellants contended that so far as the recovery of the stones are concerned the Investigating Officer Ranjeet Singh PW-20 who visited the spot on 31.05.2001 upon having received the information that a dead body was lying in the field of Siya Ram had proceeded to the spot and after returning had made the entry report No.1349 in the `rojnamcha' of 31.05.2001 of having found stones on the spot and having kept the stones safely.
The relevant portion of the statement of the I.O. Shri Ranjeet Singh, PW-20 to which the contention of the Court was drawn reads as follows :
"?? ??? ??? ?? ?? ????? ???? ???????? ??? ????? 31.05.2001 ?? ?? ??? ??.1349 ???? ?? ??? ???? ??? ?? ??? ?? ???? ?? ????? ?? ????? ? ????? ?? ??????? ?? ?????? ?? ???? ??? ???? ???? ??? ?? ??? ??? ?? ?? 31 ????? ?? ???? ??? ????? ???? ???? ?????"
Learned counsel for the accused-appellants further contended that as to what was exactly mentioned in the Rojnamcha report No.1349 has been suppressed by the prosecution, inasmuch as during the course of the cross-examination of this witness the cross-examination was deferred on 13.10.2003 to enable the prosecution to produce the original `rojnamcha'. In the statement of PW-20 on 13.10.2003 it was stated by Ranjeet Singh, I.O. as follows:
?? ???? ??? ?? ?? ????? ?? ????? ?? ?????? ???? ???? ??? ?? ???? ???? ?? ?? ??? ??? ??? ???? ?? ??? ????? ????? ??????? ?? ???? ???? ????? ?? ?? ????? ????? ????? ?? ???? 20-25 ???? ?? ???
???:- ???? ???? ?? ?? ??? ?? ??? ?? ???????? ??? ?? ?????? ??? ????? ????? ????? ???? ????? ???? ??? ?????? ?? ??? ???????? ???? ???? ?? ??? ?? ???? ?? ???? ???? ???? ???? ??? ???????? ??? ???
Inspite of the aforesaid opportunity being granted to the prosecution when the witness appeared in witness box again on 15.12.2003 the `rojnamcha' was not produced in evidence and the above statement regarding report No.1349 in the `rojnamcha' dated 13.05.2001 and the recovery of the stones and keeping them safely was given by the witness PW-20 Ranjeet Singh, the Investigating Officer.
Learned counsel, therefore, submitted that when the Investigating Officer had already visited the scene of occurrence on 31.05.2003 and had seen the stones lying there and had kept them safely and an entry made in the rojnamcha, thus as per the accused the stones had already been recovered as mentioned in the `rojnamcha' report hence the recovery of the stones on the basis of the alleged information given by the accused becomes in consequential and cannot be used against the accused as the Investigating Officer already had the knowledge about the existence of these stones on 31.05.2001 itself prior to the arrest of the accused on 19.06.2001.
Learned counsel, therefore, submits that the recovery of the alleged weapons on the basis of the aforesaid cannot be used as evidence against the accused-appellants.
The learned counsel for the accused-appellants next contended that the recovery of the alleged wrist watch and the silver chain on the basis of the information furnished by the accused is also highly suspicious and has not been supported by the prosecution witnesses.
So far as the recovery of the wrist watch is concerned, vide recovery memo is Exhibit P-1 at the instance of the accused-appellant Chela, the independent witness examined by the prosecution are PW-1 Ram Prasad and PW-2 Mohan Singh.
So far as PW-1 Ram Prasad is concerned, he has denied the fact of recovery in his presence. In cross-examination he has stated as follows :
"???? ???? ????? ????? ???? ??? ??? ????? ???? ?? ???? ????? ????? ?? ??? ?? ?? ???? ????? ?? ??? ????? ?? ???? ???? ?????? ?? ????????? ???? ???? ??????? ???? ???? ??? ??? ?????"
In the examination-in-chief also all that this witness stated is as follows :
"????? ?? ?? ???? ????? ????? ?? ??? ???? ??????? ????? ?? ????? ??.1 ???"
However, after being cross-examined and having denied the fact of recovery in his presence this witness was not cross-examined or declared hostile by the prosecution.
The other witness PW-2 Mohan Singh has also denied the fact of any recovery being made in his presence and has stated as follows:
"???? ????? ???? ????? ???? ???? ???? ???? ?????? ?? ???? ???? ???? ???"
This witness was also not cross-examined by the prosecution nor was he declared hostile.
Learned counsel on the basis of the above submitted that the evidence of recovery of the alleged watch on the basis of Exhibit P-1 as a circumstance against the accused-appellant Chela cannot be relied upon. The other piece of evidence in this very chain is the alleged recovery of the silver chain of the deceased at the instance of accused-appellant Chandan Singh. The two independent witnesses of Exhibit P-15 relating to the recovery memo of the silver chain are one Gopal and other Devi Singh. The first witness Gopal was not produced by the prosecution at trial. The second witness is Devi Singh, PW-11 and this witness has not supported the prosecution case, but was declared hostile by the prosecution. He has even denied the presence of Chandan Singh with the Police at the time of making the alleged recovery.
Learned counsel for the accused-appellants, therefore, contended that so far as the alleged recovery of the two items namely the wrist watch and silver chain which are said to be those of the deceased the prosecution has failed to prove the fact of recovery of these articles at the instance of the accused or from the possession of the accused in view of the above evidence.
As regards the circumstance of the accused leading the Police to the site of the crime after their arrest on 19.06.2001 is concerned, the learned counsel for the accused-appellants contended that in the present case the Police had already been led to the scene of the crime where the dead body was lying on 31.05.2001 by Siya Ram and the dead body had already been recovered from the scene of occurrence and this fact was already in the knowledge of the police as such the question of the accused leading the Police to the scene of the crime and there being any question of discovery based upon the information supplied by the accused in the facts and circumstances does not arise. As this fact and information was already within the knowledge of the Police at the time when the accused had been arrested.
Learned counsel further submitted that in the present case the Police has even fabricated the arrest memos of the accused namely Exhibits P-20, P-21 and P-22 respectively.
Learned counsel for the accused-appellants contended that these arrest have been shown to be at Gulb Bagh, Dholpur whereas as per the statement of Sirmor PW-22 accused were arrested from Punjab and he had accompanied the policy party.
Learned counsel for the accused-appellants further contended that in the instant case the recovery of the articles is meaningless, inasmuch as the articles namely the wrist watch and the silver chain were not identified before the Magistrate and no test identification was made before the Magistrate by mixing similar articles.
The relevant portion of the statement of PW-20 Ranjeet Singh, Investigating Officer reads as follows :
"????? ????? ?? ??? ? ???? ?? ?? ???? ?????????? ???? ?? ????? ????????? ??????? ?????? ?????? ???? ????? ????? ???? ??? ??? ?? ???? ?? ??? ?? ????? ???? ??? ????? ????? ????????? ????????? ?????? ???? ???? ????? ???? ??? ??? ???? ?? ??? ?? ????? ?? ????? ???? ???"
Learned counsel for the accused-appellants contended that in the absence of any test identification by mixing the articles with similar articles, the aforesaid recovery becomes highly doubtful and inadmissible.
Learned counsel for the accused-appellants further contended that PW-17 Smt. Guddi has deposed as follows :
"??? ??? ??? ???? ?? ????? ??????? ??? ?? ??? ???? ??? ???? ?????? ???? ??? ???? ??? ??? ????? ?????? ??? ????? ?? ?? ????? ???? ??? ????? ??? ?? ????? ????? ???? ???? ????? ????? ?? ?????, ???? ?? ??? ???? ????? ????? ?? ???? ?? ????? ??? ???? ?? ?? ?? ???? ??? ?? ??? ?? ????? ?? ?????? ?? ????? ??? ??? ??? ??? ??? ??? ?? ?? ????? ????? ??? ???? ?? ???? ??? ??---'' Learned counsel for the accused-appellants drew the attention of the Court to Exhibit P-19 `fard' relating to the identification of the clothes of the deceased by Smt. Guddi, PW-17.
It was submitted that the aforesaid `fard' was prepared on 13.06.2001 whereas as per the arrest memos of the accused Exhibits P-20, P-21 and P-22 respectively all three accused namely, Chandan Singh, Chela and Laxman were arrested on 19.06.2001 and the recovery memos Exhibit-1 relating to the wrist watch at the instance of accused Chela was made on 29.06.2001 and the silver chain vide Exhibit P-15 also on 29.06.2001.
Learned counsel for the accused-appellants, therefore, contended that the whole story of the prosecution case regarding the recovery of the articles stand demolished by the aforesaid statement of PW-17 Smt. Guddi wife of the deceased that on 13.06.2001 when she visited the Police Station the clothes of the deceased and the wrist watch and chain were also shown to her.
In the light of the above, the learned counsel submits that the evidence with regard to the recovery of the aforesaid articles at the instance of the accused and from the possession of the accused on 29.06.2001 cannot be relied upon against the accused-appellants when they were available with the police on 13.06.2001.
Learned counsel for the accused-appellants further contended that in the present case there is no motive for the accused to have committed the aforesaid crime and even the learned trial Court has held that there is a total absence of motive in the present case.
The learned Public Prosecutor for the State, on the other hand, supported the judgment of the learned trial Court and contended that in the instant case there is ample and reliable evidence with regard to last seen of the accused in the company of the deceased which goes against the accused-appellants.
Learned Public Prosecutor submits that accused had desired to go to Punjab but on the way in between the accused deprived the deceased of his belonging including the wrist watch, silver chain and the money that he was carrying and murdered him and with a view to conceal the dead body threw the same in the field of Siya Ram.
The learned Public Prosecutor for the State further contended that the evidence of recovery of the articles at the instance of the accused and the recovery of the weapon of offence i.e. stones also connects the accused with the crime.
The learned Public Prosecutor further contended that in the instance case non-production of the photographs of the deceased taken by the Police, if at all cannot be taken as an adverse circumstance against the prosecution as the deceased had been identified on the basis of the clothes recovered from the deceased which the deceased was wearing and were identified by PW-17 Smt. Guddi wife of deceased.
Learned Public Prosecutor further submits that the appeal of the accused be dismissed and conviction and sentence be maintained.
We have considered the rivals submissions.
The present one is a case of circumstantial evidence. The prosecution has relied upon the circumstances of last seen, the recovery of the weapon of offence and of the articles belonging to the deceased namely the watch and chain.
The facts on record of the present case clearly show that the Investigation was started on the basis of the information received on 31.05.2001 that a body has been found in the agricultural field of Siya Ram, PW-3 and accompanied with `panchas' the Police proceeded to the site where the dead body was lying and prepared `panchnama'.
The salient features of this case is that even as per the Investigating Officer, PW-20 Ranjeet Singh as has been quoted here-in-above the alleged stones which were there at the site where the dead body was lying were seen by the Investigating Officer and they were kept safely by him, though as per the case of the appellants these stones had been recovered and report to that effect made in the `rojnamcha' bearing entry No.1349. What is required to be seen is that having already seen the stones on the site prior to the arrest of the accused whether the recovery of these stones in pursuance of the information given under Section 27 of the Evidence Act by the accused can be used by the prosecution in this case against the accused.
Despite the prosecution having been given an opportunity on 13.03.2003 by the learned trial Court to produce the `rojnamcha' report No.1349 they failed to produce the same before the Court what exactly was the content of that report and whether or not the blood stain stones which were latter on recovered by Exhibits P-10 and P-11, based upon the information given under Section 27 of the Evidence Act as alleged by the prosecution is correct or not can only be now tested in the light of the testimony of PW-20 Ranjeet Singh, the Investigating Officer. The Investigating Officer has admitted that what was done by him on 31.05.2001 on the spot was entered by him in the `rojnamcha' report No.1349 of the stones. He has also admitted that in the aforesaid report No.1349 he has made an entry of having found stones and having kept the stones safely.
As per Section 27 of the Evidence Act when any fact is deposed as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
In the present case, PW-20 has already stated that on the scene of occurrence on 31.05.2001 prior to the arrest of the accused he found the stones lying and he kept them safely at a place.
In that view of the matter, there was nothing new for the Investigating Officer to discover having already found the stones on the place of the occurrence and having kept them safely on 31.05.2001. Since knowledge about the existence of the stones was already there with the Police before the discloser statement under Section 27 of the Evidence Act was said to have been made by the accused after their arrest on 19.06.2001, this information would not come within the scope of Section 27 of the Evidence Act.
In the present case, the place of occurrence was already known to the Police and also the existence of the stones on the said spot. Thus in fact the alleged discloser statement made by the accused was not such a discloser about the fact which was not already known to the Police and as such it cannot be treated to be an information or discloser made by the accused in Police custody so as to fall within the scope of Section 27 of the Evidence Act.
In the present case, therefore, the evidence with regard to discovery of the alleged stones and the pointing out the place of occurrence to the Police cannot be considered as a circumstance or material piece of evidence against the accused-appellants.
As regards the recovery of the wrist watch and silver chain is concerned, it may be stated from the fact that the independent witnesses PW-1, PW-2 and PW-11 namely, Ram Prasad, Mohan Lal and Devi Singh have not supported the prosecution case and even PW-1 and PW-2 have not been declared hostile by the prosecution the recovery from the accused of these articles is not proved. The statement of PW-17 Smt. Guddi is also of great significant importance as PW-17 Smt. Guddi wife of the deceased has clearly stated that when she went to the Police Station on 13.06.2001 for the purposes of identification of the clothes of the deceased, along with the clothes the wrist watch and the silver chain were already present there and she had identified the same after these were taken out from a dibbi (Box).
In view of the above and the fact that the identification memo pertaining to clothes of the deceased Exhibit P-19 is dated 13.06.2001 and if the wrist watch and silver chain were already there in the custody of the Police on the said date having been taken out and shown to the witness PW-17 Smt.Guddi wife of the deceased at the time of preparation of Exhibit P-19 the prosecution case relating to the recovery of the aforesaid articles namely, wrist watch and the silver chain vide Exhibit P-1 from the accused-appellant - Chela and Exhibit-P-15 from the accused-appellant Chandan on 29.06.2001 after their arrest on 19.06.2001 raises a serious doubt about the recovery and cannot be relied upon in the light of the testimony of PW-17 Smt. Guddi.
We are, therefore, of the view that the recovery of the aforesaid articles wrist watch and the silver chain allegedly from the accused-appellants Chandan and Chela cannot be relied upon in the facts and circumstances of the present case, as a circumstance against the accused.
In the present case apart from the evidence of the recovery of the stones, the wrist watch and the silver chain the only other substantial piece of evidence which has been relied upon by the prosecution is the alleged evidence of last seen. As per PW-17 Smt. Guddi when the accused are said to have gone to the house of Ramji Lal deceased, Sirmor PW-22 the brother of the deceased as well as Hakim PW-15 were already present at the house of the deceased and before both these witnesses deceased Ramji Lal had stated that he was going with the accused-persons for employment to Punjab. If this fact was already know to both these witnesses the theory put forwarded by PW-15 Hakim Singh, who is also a relative of the deceased, that when he met the deceased with the accused at the bus stand in Panchgaon he inquired from the deceased as to what he was doing and deceased told him that he was proceeding to Punjab in search of employment cannot be accepted.
The very fact that PW-17 Smt. Guddi has stated that Hakim Singh PW-15 was present at the house of the deceased along with Sirmor, PW-22 when all the three accused-appellants came to the house of the deceased and deceased had introduced them as Chandan, Chela and Laxman the evidence of PW-15 Hakim Singh that he inquired from the deceased at the bus stand as to what he was doing on the bus stand and who were with him is contradictory to the statement of PW-17 Smt. Guddi wife of the deceased. Similarly the statement of PW-22 Sirmor that he came to know about the deceased Ramji Lal having left for Punjab from Ram Khiladi (PW-21) and Hakim Singh (PW-15) also cannot be relied upon. As Sirmor (PW-22) has admitted the fact that at about 10-10:30 in the morning accused Chela, Chandan and Laxman had come to Moti Ram Ka Nagla and met Ramji Lal deceased and inquired from Ramji Lal whether he was willing to go to Punjab and Ramji Lal agreed to go with them and left his house at about 12 O'Clock accompanied by the three accused-persons. When this fact was already known to the witness PW-22 Sirmor the theory put forwarded that Ram Khiladi and Hakim came and told him that of having seen Ramjilal at the bus station with the accused appears to be an after thought on the part of the prosecution to introduce this fact that the deceased was seen in the company of the accused-appellants at Panchgaon bus station by Hakim PW-15 and Ramkhiladi PW-21.
Apart from the above, the fact regarding Ramji Lal having agreed to accompany the accused-persons for seeking employment in Punjab is negatived by the statement of PW-22 Sirmor himself. In cross-examination his witness has admitted that Ramji Lal had not taken any belonging including extra-sets of clothes etc., before leaving for Punjab or that he had taken any money from his wife before leaving for Punjab.
Witness has further admitted that Ramji Lal had not taken any suit-case or bag while leaving home. He only saw Ramji Lal leaving with a towel in his hand. Therefore, the evidence with regard to last seen in the present case is highly doubtful having been given by only highly interested and related witnesses. It is also a fact that there was an ample time between 27th May, 2001 when the deceased was last reported to have been seen in the company of the accused and the time when the dead body was found and the possibility of the deceased having been in the company of any other person, apart from the accused in the intervening period cannot be ruled out. The law and the point as annunciated by the Hon'ble Supreme Court in the case of State of Goa Vs. Pandurang Mohite, reported in A.I.R. 2009 S.C. 1067 has been laid down in para 16 of the report.
In the instant case, the submission of the learned counsel for the accused-appellants also is that the prosecution has failed to prove beyond reasonable doubt that the dead body which was recovered was that of Ramji Lal deceased.
Learned counsel pointed out that the Police had admittedly taken the photographs of the dead body but these photographs were not produced by the prosecution at trial. Nor were these photographs put to the witnesses for the purposes of identification. The only explanation given is that the face was beyond recognition and therefore the photographs even if produced would not be enable the witnesses to identify the deceased. The aforesaid reasonings given by the learned Public Prosecutor for the State may in a given case hold good but that should be left to the witnesses to identify and state and is not a matter for the Investigating Officer or the prosecution to decide as to whether the witness would be in a position to identify the deceased or not. There can be several reasons for identification which may be known to the person identifying as they have remained in close contact such as the spouse and the person may be identified even if the face is mutilated or disfigured as in the present case by such a person. One of the most important factors in the present case relating to identification is, as has been stated by PW-22 Sirmor that on the left hand of deceased Ramji Lal, the name Ramji Lal Kushwa had been engraved by tattoo. There is no evidence from the side of the prosecution either in the `panchnama' of the dead body or in the identification marks mentioned in the postmortem report that the left hand of the dead body recovered in the present case there was a tattoo mark with the name of Ramji Lal Kushwa engraved therein. Explanation which the learned Public Prosecutor has sought to give is that between the time when the murder took place and the dead body was recovered the body was in a decomposed state and, therefore, probably they were unable to see any tattoo marks on the left hand. We are unable to accept the aforesaid explanation given by the learned Public Prosecutor as this has not been stated by any witness.
Exhibit P-3 `Panchnama' of the dead body clearly refers to the fact that only the face of the deceased has been mutilated and disfigured and his jaw and eyes have been destroyed.
Apart from the above, there is a mention that there is an injury on the right side of the chest. Apart from the above, there is the following statement :
"???? ????? ???? ?? ??? ???? ?? ???? ??? ?????? ??? ???? ?? ?? ?? ????? ??? ??????? ? ??? ???? ?? ?????? ????? ?? ?? ??? ???? ?? ??? ?????? ? ?? ???? 5 ??? 8 ??? ???"
This only goes to show that the S.H.O. PW-20 had throughly checked the dead body and apart from the injuries on the face and the chest there was no other injury and the body had been turned over also and examined.
PW-20 Ranjeet Singh, Investigating Officer has clearly stated that Exhibit P-3 was prepared by him and face of the body was damaged and there was injury on the chest which appeared to be the cause of death. He had the body photographed. In case there was any tattoos marks on the hand of the deceased as stated by PW-22 Sirmor the brother of the deceased it is not possible that the Investigating Officer who prepared the `panchnama' would not be in a postilion to notice the same as he is a trained person. It, therefore, creates a serious doubt in the facts and circumstances of the present case taking the totality of the circumstances that the photographs which were taken by the Police were not shown to the witnesses nor were these produced in evidence at trial nor is there any confirmation of the fact that on the dead body there were any tattoo marks on the hand with the name Ramji Lal Kushwa written on it. As PW-22 Sirmor, the brother of the deceased, has stated that the deceased had tattoos marks with his name engraved on the hand. It would, therefore, be difficult as held by this Court in the case of Plaja @ Subi @ Mahesh @ Anr. Vs. State of Rajasthan, reported in 2004 (1) Cr.L.R. (Raj.) 8 that absence of the identification of the body a benefit would be given to the accused. The aforesaid judgment in Plaja vs. State of Rajasthan (supra) also has a bearing so far as recovery of the items i.e. the wrist watch, the chain and the stones are concerned.
Para 13 and 16 of the report reads as follows :
13. Insofar as the circumstance of recovery of swafi is concerned we find that in the Inquest-report, Exhibit P/9 drawn on 25.10.1995 it was mentioned that dead body was tied with the tree by `swafi'. Because of the foul smell the whole of `swafi' could not be untied and in a process of removing the dead body, a part of `swafi' left tied with the tree. This part of `swafi' was allegedly recovered vide recovery memo Exhibit P/5 drawn 29.10.1995. As the police had already known that part of `swafi' already left tied with the tree, the recovery of `swafi' is farce which cannot help the prosecution in any way. The recovery of cycle and writ-watch admittedly was affected from the open place vide recovery memo Exhibit P/3. The cycle was recovered at around 12.00 Noon on 29.10.1995 at the instance of Plaja from the bushes, whereas the wrist-watch was recovered vide Exhibit P/4 at 12:30 p.m. on the same day at the instance of Ramu from the same place. The Motbirs of recovery of wrist-watch and cycle are Patiram PW-6 and Kallu PW-7. Both Kallu and Pati Ram in their deposition stated that the recovery-memos were drawn at the police station. In view of these facts, no importance can be attached to the alleged recovery of wrist-watch and cycle.
16. There is another weak link of the prosecution case. The dead body was not identified by any body. Even the photographs of the dead body were not shown to Ram Bharosi and they were not placed on record. Father of deceased Ram Bharosi could only identify the pant, shirt and shoes of the deceased. The identification of these articles was not conducted in the presence of Magistrate. Even no evidence was adduced to establish that whose presence the dead body was recovered, identified and cremated.
In the present case also the stones had already been found by the S.H.O. Ranjeet Singh PW-20 on 31.05.2001 while preparing the `panchnama' of the dead body and a note to that effect was made in the `rojnamcha' report No.1349 of the same date, which was not produced in evidence and the stones admittedly kept safely by the Police, as such the existence of the stones on the spot was already within the knowledge of the Police and, therefore, the alleged recovery based upon the information said to have been given by the accused is inconsequential as held above in a case of Plaja Vs. State of Rajasthan (supra). The recovery of the wrist-watch and the chain which was already there with the police as admitted by PW-17 Smt. Guddi wife of the deceased on 13.06.2001 completely demolished the fact of the recovery of these articles on the basis of the information given by the accused from the possession of the accused.
Thus, we find that the prosecution evidence in this case fall short of successfully proving the circumstances relied upon by the prosecution for proving the charges of murder under Section 302 read with Section 201 I.P.C. against all the three accused-appellants and that of Section 379 I.P.C. against the accused Chela and Chandan beyond reasonable doubt.
In the result, on the basis of the reasons and the findings given above, we would accept this appeal, set aside the impugned judgment of conviction and sentence awarded to the accused-appellants viz., Chandan Singh, Chela and Laxman and acquit the appellants from the charges levelled against them giving them the benefit of doubt. The appellants are in jail. They shall be set at liberty, if not required in any other case.
The appeal stands allowed accordingly.
(S.S. Kothari) J. (Dalip Singh) J. Ashok/