Rajasthan High Court - Jaipur
Mithu Lal vs The State Of Rajasthan on 19 May, 1995
Equivalent citations: 1995(1)WLN607
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the Judgment dated 25.1.1988, passed by the Additional Sessions Judge, Rajsamand, by which the learned Additional Sessions Judge convicted the appellant for the offences under Sections 302 and 397 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 2000/- and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Section 302 IPC and seven years' rigorous imprisonment for the offence under Section 397 IPC.
2. The appellant was tried by the learned Additional Sessions Judge, Rajsamand, for the offences under Section 302 and 397 IPC for committing the murder of Mst. Debu in the field of Balu Ram situated in village vilur in the intervening night between 14/15th November, 1986 and after committing her murder committed robbery of the ornaments from her person.
3. The case of the prosecution is that in the evening of 14.11.86, Mst. Debu had on to the field to clear the call of the nature. She did not return the house in the night. The family members of Smt. Debu went in search of her but could not locate her. In the morning of 15.11.86, P.W. 1 Balu Ram, when went to his field, he saw the deadbody of a lady lying in his field and noticed that both the legs of the deadbody were cut from near the ankle. Balu Ram was not knowing the deceased and, therefore, he reported the matter in the village and it was revealed that the deadbody was that of Smt. Debu. The ornaments, which the deceased used to wear, namely, kadlias (foot-wearlngs) and Totlas (earrings) were, also, missing. P.W. 1 Balu Ram thereafter reported the matter at Police Station, Railmagra on 15.11.86 at about 5.50 p.m. The prosecution, in support of its case, produced 19 witnesses. The accused did not produce any witness in his defence. The nature of the evidence, produced by the prosecution, consists of the statement of P.W. 1 Balu Ram, who saw the deadbody of the deceased lying in his field and lodged the report Ex.P. 1. He is, also, a witness to site plan Ex.P.2, Panchnama-A-Lash Ex.P.3, recovery of the blood-stained as well as sample soil vide Ex.P.4, recovery of the clothes of the deceased vide Ex.P.5 and the recovery of the hair which were found In the fist of the deceased vide Ex.P.6 as well as the flap of a pocket. P.W. 2 Kalu - the grand father-in-law of the deceased - has stated that In the evening at about 6.00 p.m. of the day of the incident, Smt. Debu went towards the fields for clearing the call of the nature and at that time he was sitting in the Eastern side of the village. Sometime thereafter his wife and sons came from the field but Smt. Debu did not return by that time and, therefore, they went in search of the deceased but she could not be located through- out the night. She was not traceable even upto the morning of the next day. At about 3.00 p.m., Balu Ram went to his field and saw the deadbody of Smt. Debu lying in his field, whereupon he went to the field of Balu Ram and saw the deadbody of Smt. Debu lying near a Babul bush and the silver ornaments, namely, Kadias and Totlas worn by the deceased were missing from her corpse. In the evening of the day when Smt. Debu left the house for clearing the call of the nature, prior to that the accused came to their house and had a talk with the deceased and the accused informed the deceased that he had gone to Kapasan and her aunt (Bua) had conveyed the message that she is all right. P.W. 3 Mohan (the husband of the deceased), P.W. 4 Smt. Lehri (grand mother-in-law of the deceased) and P.W. 5 Smt. Sangari Bai (mother-in-law of the deceased) are the witnesses to this effect that in the evening of 14.11.86, they were in the field when Smt. Debu left the house and when they returned to the house, the deceased was not found and on the next day her deadbody was found and the silver ornaments, which the deceased was wearing, namely, Kadias and Totias, were missing. They are, also, the witnesses who identified these ornaments. P.W. 6 Jamna Lal and P.W. 7 Jagdish Chandra Bohra are the two Motbir witnesses of recoveries of the ornaments and the clothes of the deceased. P.W. 8 Bhagirath is a witness who had seen the accused at about 12.00 in the mid-night in the field dragging a cow. P.W. 9 Balu Ram is a witness who stated that the accused offered him Rs. 100/-for stating that the accused was with him on the fateful day, P.W. 10 Nand Ram is a witness who has been produced to shqw that the theft was committed in his house but he has not supported the prosecution case and stated that though the theft took place but all the articles were found in the field. P.W. 11 Dr. Anil Kumar conducted the post-mortem on the dead body of Dewu. P.W. 12 Rajnish Upadhyaya took the photographs of the dead body of Smt. Dewu. P.W. 13 Kanhaiya Lal Sunar as the witness who allegedly prepared the Kadias and Totias of the deceased but he has stated that he is unable to identify the same. P.W. 16 Mr. Tara Chand is the Tehsildar who conducted the identification of the ornaments, i.e., Kadias and Totias on 3.12.86. P.W. 19 Mr. Banshi Mohan Chayal was the then Munsif and Judicial Magistrate, Rajsamand, before whom the accused was produced on 28.11.86 and he took the hair from the head of the accused for F.S.L. examination, sealed them and gave the sealed packet to the Station House Officer. He has, also, taken the pieces from the clothes of the accused which were found stained with blood, sealed them and handed over the packet to the Station House Officer. The remaining are the police personnels who are connected with the investigation at one stage or the another. The learned Additional Sessions Judge, after considering the evidence produced by the prosecution, convicted and sentenced the accused-appellant as stated above.
4. There is no eye witness to the occurrence. The case of the prosecution rests mainly on the circumstantial evidence. We have, thereof, to see: whether the circumstances relied upon by the prosecution, have been established by cogent evidence and whether the chain of the circumstances is so complete that from it no inference other than the guilt of the accused can be drawn and prove that the accused-appellant is the perpetrator of the crime ?.
5. The first circumstance though relied upon by the prosecution but not believed by the learned trial court, is that on the day of the incident, when Smt. Dewu left the house in the evening, prior to that the accused-appellant came to her house. P.W. 2 Kalu and P.W. 3 Mohan have admitted that the accused was the first cousin of the deceased as the deceased was the Mausi's daughter of the accused and on account of this relationship the accused used to come to their house. On that day, he had returned from Kapasan and had gone to the house of the deceased to convey the message of the aunt (Bua) of the deceased that she is all right in village Kapasan. Being the first cousin of the deceased, it was natural that the accused may visit the house of the deceased and going to the house of the deceased by the accused cannot be said to be an incriminating circumstance against the appellant. We are, therefore, of the opinion that this is not a circumstance which incriminates the appellant with the crime. The learned trial Court was, therefore, justified in not believing this circumstance against the accused-appellant.
6. The next circumstances, which has been relied-upon by the prosecution and believed by the learned trial Court, is that the accused was last seen in his field on the fateful night at about 12.00 in the mid-night and at that time he was following a cow. On being enquired by P.W. 8 Bhagirath he informed that he was in the Dewra (religious place) but when this witness confronted that he was not in the Dewra, the accused replied that he was in the field and as a cow had entered his field, he was to bring that cow. The accused was coming from his field and was with a cow. Going of the accused to his field in the night and returning in the night alongwith a cow, cannot be said to a circumstance incriminating the accused-appellant with the crime, particularly in the absence of any evident that he was seen with the deceased or the deadbody was found at that site. The learned trial Court was, therefore, not justified in relying upon this circumstance against the accused-appellant.
7. The next circumstance relied upon by the prosecution and believed by the learned trial Court is that the accused offered Rs. 100/-to P.W. 9 Balu Ram for stating that the accused was with him on 15.11.86. According to P.W. 9 Balu Ram, on 16.11.86, at about 3.45 p.m., the accused came to him and asked him that he will give him Rs. 100/- provided he states that on 15.11.86 the accused was at the house of this witness between 8.00 p.m. to 10.00 p.m. The statement of P.W. 9 Balu Ram does not appear to be true because the accused was arrested by the police on 15.11.86 at 8.30 p.m. and, therefore, after his arrest, there was no question of approaching the accused to this witness. When the accused had already been arrested and was in custody then there was no possibility of approaching the accused-appellant on 16.11.86 to this witness. The learned trial Court has believed this witness by mentioning that the witness, being a villager, might have wrongly given the date 16th whereas it must be 15th, but we are of the opinion that when this witness came with a specific date and the time then such benefit of being a rustic villager cannot be made available to this witness. This circumstance has not been established and does not incriminate the accused with the crime. The learned trial Court was, therefore, not justified in treating this circumstance as incriminating against the appellant.
8. The next circumstance relied-upon by the prosecution and believed by the learned Additional Sessions Judge is the recovery of the Kadias and Totias of the deceased on the information and at the instance of the accused-appellant. These silver ornaments, i.e., Kadias and Totias, were recovered from the field near the way, i.e., from an open place accessible to all the sundry and such type of Kadias and Totias are commonly worn by the ladies in the area. P.W. 13 Kanhaiya Lal Sunar, who has allegedly prepared these Kadias and Totias on being asked by Kalu, has shown his inability to state whether he prepared the same. The identification of these ornaments by the Tehsildar, also, does not appear to be proper as only two Radios and Totias were mixed and they were not of the similar type. The Kadias and the Totias, as per the recovery memo, became black on the edges and it has not come in the evidence that the ornaments mixed with these ornaments were, also, having the same blackness on the edges. The recovery of these ornaments from an open place accissible to all and sundry, thus, cannot be said to have been made on the information and at the instance of the accused, particularly in the circumstances when P.W. 7 Jagdish Chandra Bohra has specifically stated that he signed the recovery memo at the Police Station and not at the place of the recovery, which further shows that these recovery memos were prepared at the police Station and not at the spot. The recoveries were made from the open place accessible to all and sundry and as such the same cannot be said to have been made on the information and at the instance of the accused. This cannot be said to be an incriminating circumstance against the appellant.
9. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the Kulhari as well as the clothes of the accused found stained with blood from the Nohra of the accused on his information and at his instance. So far as the recovery of the clothes of the accused is concerned, they never remained in the same sealed condition which is clear from the statement of P.W. 19 Mr. Banshi Mohan - the learned Magistrate. This witness has stated that the clothes of the accused were brought before him and he cut the pieces from these clothes which were stained with blood, sealed them and handed-over the packet to the Station House Officer. Even otherwise, the recoveries of the clothes and the Kulhari were made from the Nohra which was neither locked nor inhabitated by the accused. Only a latch was there on the door and the Nohra was not in the exclusive possession of the accused. P.W. 7 Jagdish Chandra Bohra has, also, stated that he signed the recovery memos at the police station. This witness has stated that the recovery of the clothes was made from the Nohra while P.W. 6 Jamna Lal has stated that this recovery was made from the house of the accused. The Nohra was not locked and as per the prosecution case, it was owned by Bheru Lal and the accused. Therefore, it cannot be said that the Nohra was in the exclusive possession of the accused. The Nohra was, also, not used for residential purposes and was being used for putting the grass. When the Nohra was not locked and was not in the exclusive possession of the accused-appellant, the recovery of the articles therefrom cannot be said to have been made from the exclusive possession of the accused. It may be stated that these articles were containing human-blood but the group of the blood could not be ascertained during the chemical examination due to disintegration of the Mood. The blood on these articles was not proved to be that of the deceased. We, are therefore, of the opinion that the recoveries of these articles are not free from suspicion and appear to be tainted one and, therefore, his circumstance, also, cannot be said to be incriminating against the appellant.
10. The next circumstance relied-upon by the prosecution but not believed by the learned trial Court is the recovery of the hair from the fist of the deceased. These hair, which were found in the fist of the deceased, were not found similar to the hair of the accused. This would have been a clinching evidence against the accused but the F.S.L. report stated that no definite opinion can be drawn regarding the sex and comparison of the samples, in the absence of any definite finding that the hair found in the fist of the deceased were those of the accused, a suspicion arises that some person other than the accused committed the murder of Smt. Dewu and took away her ornaments and if the accused-appellant would have been the perpetrator of the crime then his sample hair would have tallied with the hair found in the fist of the deceased. This circumstance, also, does not. incriminate the accused,.
11. The last circumstance relied-upon by the prosecution but not believed by the learned trial Court is the recovery of the flap of the pocket found near the deadbody of Smt. Dewu. The clothes of the accused, which were recovered, were not having the flap but on examination In the Laboratory, it was found that it was different in design, dimension, quality of stitches and other characteristics with that of flap on the other pocket on the bushirt and it, also, differs in fabric of the bushirt in respect of texture and shade etc. The flap which was recovered from the place of the incident was of-white colour while the bushirt of the accused was of off-white colour. Thus, this circumstance, also, does not connect the accused with the crime.
12. So far as the offence under Section 397 IPC is concerned, as after discussion of the evidence we have already held that the ornaments were not recovered on the information and at the instance of the accused and as the recoveries of the ornaments have not been made from the appellant, therefore, the ingredients of the offence under Section 397 IPC have not been made-out against the appellant and as such no robbery has been committed by the appellant. The prosecution has failed to prove this offence against the appellant beyond reasonable manner of doubt and the appellant deserves acquittal on this countlers.
13. The aforesaid circumstances, relied upon by the prosecution, thus, do not sand established from the evidence produced by the prosecution and do not connect the appellant with the crime. No incriminating circumstance against the accused- appellant, therefore, stands established. The learned trial Court was, therefore, not justified in convicting and sentencing the accused-appellant for the offence under Section 302 IPC, also, and he deserves acquittal on this count.
14. In the result, the appeal, filed by accused-appellant Mithu Lal, is allowed. The judgment dated 25.1.1988, passed by the learned Additional Sessions Judge, Rajsamand, convicting and sentencing the accused-appellant for the offences under Section 302 and 397 IPC, is quashed and set-aside and the appellant is acquitted of all the charges levelled against him. He is in jail and shall be released forthwith if not required in any other case.