Rajasthan High Court - Jodhpur
Bhoma Ram And Anr vs State on 1 March, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 781/2012
1. Bhoma Ram S/o. Deva Ram, by caste Seervi, resident of
Dudhod Bera Navoda, Police Station Marwar Junction,
District Pali (Raj.).
2.Smt. Kamla W/o. Late Lumba Ram, by caste Seervi,
resident of Dudhod Bera Navoda, Police Station Marwar
Junction, District Pali (Raj.).
(Lodged at Central Jail, Jodhpur).
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Dhirendra Singh.
Mr. Rajiv Bishnoi.
Mr. Kalu Ram Bhati.
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Reportable Date of Judgment: 01/03/2019
(BY THE COURT: PER HON'BLE MEHTA, J.)
The appellants herein have been convicted and sentenced as below vide judgment dated 31.07.2012 passed by the learned Sessions Judge, Pali, in Sessions Case No.39/2011:
Offences Sentences Fine Fine Default
sentences
Under Section Life Imprisonment Rs.5,000/ Three Months'
302/34 IPC Simple
Imprisonment
Under Section One Year's Rs.1,000/- Three Months'
201 IPC imprisonment Simple
Imprisonment
(2 of 16) [CRLA-781/2012]
Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C.
Succinct facts, relevant and essential for disposal of the appeal are noted herein below:
One Shri Devaram son of Moolaram, Resident of Dudor submitted a written report to the SHO Police Station Marwar Junction, District Pali at the place of the occurrence on 31.01.2009 at about 03.00 am. alleging inter alia that on the previous night, the informant was at his house. At about 12 o' clock, Sohan Lal son of Jetharam, Bhanwar Lal Sirvi and Jogaram Meghwal came and called him to come out. He woke up and came out of his house on which, these three persons informed him that deadbody of his brother Lumbaram was lying at the Sinla Road between Kharda and Shivsagar. He went with them and saw the deadbody of his brother Lumbaram lying beside the Sinla Road with grievous injuries on the skull region. He cast a suspicion that his brother Lumbaram might have been murdered by Bhomaram and Lumbaram's wife Kamla in the night and the deadbody had been thrown on the road. He also suspected that Kamla and Bhomaram were indulged in an illicit relationship since long. Lumbaram was aware of these relations and thus, he was murdered so that the obstacle in way of the illicit relations flourishing between the accused could be eliminated. On the basis of this report, a formal FIR No.27/2009 was registered at the Police Station Marwar Junction and the investigation commenced. After investigation, a charge-sheet was submitted against the accused appellants for the offences under Sections 302, 302/34 and 201 IPC in the Court of the concerned Magistrate. Since the offence under Section 302 (3 of 16) [CRLA-781/2012] IPC was sessions triable, the case was committed to the Court of Sessions Judge Pali for trial.
The trial court framed charges against the accused appellants for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 26 witnesses and exhibited 45 documents in support of its case. The accused were questioned under Section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution evidence. They denied the same and claimed to be innocent. Seven documents were exhibited in defence. After hearing and appreciating the submissions advanced by the defence and the prosecution and after appreciating and evaluating the evidence available on record, the learned Trial Judge, proceeded to convict and sentence the appellants as above. Being aggrieved thereby, the appellants have preferred the instant appeal.
Sarva Shri Dhirendra Singh, Rajiv Bishnoi and Shri Kaluram Bhati, learned counsel representing the appellants vehemently and fervently urged that the entire prosecution story is false and fabricated. The evidence of child witness PW-11 Sushri Jasoda (daughter of the appellant Kamla and the deceased Lumbaram) around whose testimony, the entire prosecution case hinges, is highly improbable and unworthy of credence and she is a planted witness. Her statement is contradicted in material particulars by the medical testimony; the circumstances noticed by the I.O. at the place of the incident and the statement of PW-14 Sushri Sushila (being the sister of Jasoda) as well as the medical evidence. They further contended that PW-11 Jasoda was tutored and planted as an eye-witness by Devaram. She admitted that she had started living with Devaram (the direct gainer of the (4 of 16) [CRLA-781/2012] properties of Shri Lumbaram after his death) after the incident. They further contended that the evidence of Jasoda becomes doubtful and suspicious in light of the fact that PW-14 Sushila gave a categoric statement to the effect that Jasoda did not share anything about the incident with her in the morning. They urged that the entire thrust of the prosecution case that the appellant Bhomaram was having an illicit affair with Smt. Kamla was fabricated by Devaram and there is no substantive evidence to support this allegation on the entire record. They urged that the recoveries made by the I.O. at the instance of the accused do not connect them with the alleged offences. They also contended that the direct beneficiary by the elimination of Lumbaram by his death and Smt. Kamla by her implication for the alleged murder of Lumbaram, is none other than the first informant Devaram who has gained access to the entire land and other properties of Shri Lumbaram. They further urged that as per the statement of Jasoda, the deceased was hit by an axe on his head while he was sleeping on a cot and thereafter, his body was tied up in his own Dhoti and was carried away by the accused appellants. They contended that had there been even an iota of truth in this allegation, blood stains would definitely have been found on the mattress/ cot on which, the deceased was sleeping and the floor nearby. They referred to the statement of PW-23 Shri Madanlal (investigation officer) SHO, Police Station Marwar Junction who admitted in his cross-examination that he saw a bedding on the cot on which, Lumbaram was sleeping. However, he did not notice any blood stains on the bedding and thus the same was not seized. When confronted with this circumstance, he tried to modulate his evidence and made a conjecture that the deceased (5 of 16) [CRLA-781/2012] was lifted from the cot, brought into the chowk and was then murdered. They urged that this theory portrayed by the investigating officer in his evidence is not corroborated by the so called eye witness Jasoda. In this regard, they referred to the following portions of the I.O.'s testimony:
"bZ,Dlih&11 esa th LFkku esa iksy dk gokyk gSA ;s lR; gS fd oks iksy esa gh lks;k gqvk FkkA iksy esa nks njokts gS ;k ugha vkt ;kn ugha gSA yqackjke iksy ds vanj [kkV ij lks;k gqvk FkkA fcNkus dk fcLrj ml ij FkkA [kkV o fcLrj ij [kqu ugha Fkk blfy;s tCr ugha fd;k FkkA vt[kqn dgk fd mldks [kkV ls mBkdj ykdj pkSd esa ekjk FkkA ;s lgh gS fd fdlh xokg us ;gh crk;k fd yqackjke dks iksy esa ykdj pkSd esa ykdj ekjk gksA vkt eq>s ;kn ugha gS fd fdlh xokg us iksy esa ls yqackjke dks ykdj pkSd esa ekjk gksA dksVZ esa c;ku esa ;s ckr igyh ckj crk jgk gwWA"
They further referred to the following part of the cross- examination of the I.O. wherein, he admitted that while preparing the site plan (Ex.P/11), Devaram told him as to exactly where and how the deceased was assaulted.
";s lgh gS fd bZ,Dlih&11 uD"kk ekSdk 8%45 izkr% dks cuk;k x;k gSA ;s lgh gS fd tlksnk ds c;ku 2-2-09 dks fy;s tks fdrus cts fy;s mlesa le; ugha fy[kk gSA vanktu fdrus cts fy;s ;kn ughaA ?kVukLFky ds fujh{k.k ls eq>s Kkr gqvk o eqLrxhl lkFk Fkk mlls Kkr gqvk fd dgkW ikspk yxk;k x;k o dgkW e`R;q gqbZ FkhA ;s lgh gS fd nsokjke p"enhn xokg ugh gS lquh lqukbZ ckr crkbZ gSA bZ,Dlih&11 esa eqyfteku }kjk ekjus dh ckr eqLrxhl us crkbZ FkhA bZ,Dlih&11 esa ds ls ,y fgLlk eSaus eqLrxhl ds }kjk crk;s vuqlkj fy[kk FkkA ;s lgh gS fd eqLrxhl nsokjke ds vykok fdlh us ugha crk;k FkkA ;s lgh gS fd bZ,Dlih&11 esa , ls ch dejksa esas ls fdlesa tlksnk lksbZ gqbZ Fkh mldk gokyk ugha gSA .......................................................................................... ....... ;s ckr lgh gS fd eSa ftl le; ?kVukLFky ij igqapk rc e`rd dh ifRu deyk vius ?kj ij FkhA "kke dks 4 cts deyk dks mlds ?kj ls ysdj vk;s FksA eSa deyk ds ?kj lk<s+ pkj cts ls igys x;k FkkA ;s dguk lgh gS fd eSaus e`rd dh nksuksa cfPp;ksa ls ml fnu iqNrkN ugha dh FkhA tlksnk ds c;ku ?kVuk ds rhu fnu ckn fy;s FksA ;s dguk xyr gS fd uD"kk ekSds ij ml le; tlksnk] lq"khyk o mldk yM+dk ekSds ij ugha gks cfYd ekSds ij Fks ysfdu muds gLrk{kj ugha djk;s FksA ekSrfcjksa ds lkeus ekSdk ns[kk blfy;s mu rhuksa ds gLrk{kj ekSds ij ugha djk;s FksA ml le; eSaus cPpks ls iqNrkN ugha dh FkhA uD"kk ekSdk bZ,Dlih&10 crk;k rc ikspk fdlus yxk;k] gFkksMk fdlus mij j[kk o iksy esa lksus dh ckr dk gokyk ugha gSA fQj dgk fd eqLrxhl us crk;k FkkA eqLrxhl nsokjke vkbZfoVusl ugha Fkh fg;lZ FkhA ;s lgh gS fd nsokjke dks mDr ckr fdlus (6 of 16) [CRLA-781/2012] crkbZ vkt eq>s ;kn ugha gSA ;s ckr eq>s /;ku ugha gS fd i=koyh esa ;s ckr ugha gks fd nsokjke dks ;s ckr fdl us crkbZ FkhA ;s lgh gS fd tlksnk] f"koyky o lq"khyk iqNrkN rd vius ?kj esa gh FksA mudk xkftZ;u nsokjke gh FkkA nsokjke o e`rd yqackjke ds chp dksbZ tk;nkn oxSjg dh iM+rky ugha dh FkhA "
They urged that as Devaram was not an eye-witness of the incident and since, the statement of Jasoda was recorded by the I.O. as late as on 02.02.2009 (after three days of the incident), manifestly Devaram could not have known about the precise manner, the assault was made and the acts of the accused thereafter. They thus contended that the entire story has been created and concocted by Shri Devaram who has foisted a false charge of murder on the accused by influencing the child Jasoda to give false evidence. They further contended that the I.O. admitted in his cross-examination that no witness examined during investigation, verified having seen any instance of illicit relationship between the two accused appellants. As per them, Bhomaram's son was engaged to Ms. Jasoda and thus, his occasional visits to the house of Shri Lumbaram were perfectly natural. They also referred to the statement of PW-21 Dr. Niranjan Singh who conducted autopsy upon the deadbody of the deceased and proved the postmortem report (Ex.P/31) and the affirmation made by him in his cross-examination that the injuries No.1 to 7 noticed upon the dead body of the deceased could have resulted from a road accident. They submitted that not even a single sharp weapon injury was noticed on the body of the deceased during cross-examination and thus, the allegation of Jasoda that an axe was used by the accused to murder the deceased is contradicted and falsified. The prosecution did not exhibit and prove the FSL report during trial and thus as per them, the same cannot be pressed into service and accordingly, the recoveries made by the (7 of 16) [CRLA-781/2012] I.O. at the instance of the accused loose all significance. On these grounds, they vehemently and fervently implored the Court to accept the appeal; set aside the impugned judgment dated 31.07.2012 and acquit the accused appellants of the charges.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He contended that the testimony of child witness Jasoda is absolutely natural, truthful and she is a wholly reliable witness. She had no reason to falsely implicate her own mother for the murder of her father. He further contended that the incriminating articles/ weapon of offence recovered at the instance of the accused were found stained with 'A' Group Blood which is the same as that of the deceased and thus, the recoveries gain significance and corroborate the testimony of PW-11 Jasoda. Regarding the contradictions existing inter-se in the evidence of Sushri Jasoda and Sushri Sushila, the contention of learned Public Prosecutor was that same are minor and trivial in nature and are bound to surface in the testimony of child witnesses and the same deserve to be ignored. Regarding the delay in the recording of the statement of Jasoda, his contention was that the child was in a state of shock because her father had been murdered and her mother was involved in the offence. Thus, she could not speak out about having seen the incident for three days and hence, the delay in recording of her statement by the I.O. is well explained and deserves to be ignored and overlooked. He thus implored the Court to reject the appeal and affirm the conviction of the appellants.
(8 of 16) [CRLA-781/2012]
We have given our thoughtful consideration to the
submissions advanced at bar and have carefully sifted and re- appreciated the evidence available on record threadbare.
The prosecution case hinges around the following facts, circumstances and allegations:
(i) that the accused appellants were indulged in an illicit extramarital affair with each other;
(ii) that the appellant Bhomaram used to frequent the house of the deceased Lumbaram who had an aversion to his visits;
(iii) that the accused appellants conspired for eliminating Shri Lumbaram so that they could continue their extra-marital affair in an unabated manner;
(iv) that on the fateful night, the deceased was sleeping in the courtyard near the gate of his house, at which point of time, while Jasoda was watching, the accused appellants picked up a hammer and an axe. Initially Bhomaram gave an axe blow on the head of the deceased. Thereafter, Kamla took the axe from the hand of Bhomaram and gave another blow on the head of Shri Lumbaram who died at the spot. Thereafter, both the accused tied up the deadbody in the Dhoti of the deceased. They cleaned the blood which had spread around on the floor using the sweater of Sushri Jasoda who was threatened that if she told about the incident to anyone, she would also be killed. Thereafter, the deadbody was carried away by both the accused and was thrown near the well of Jepa. The accused Bhomaram threw away the hammer after returning. This entire story is unfolded in the statement of Sushri Jasoda (PW-11).
(9 of 16) [CRLA-781/2012] We now proceed to appreciate the evidence of Sushri Jasoda, the star prosecution witness in light of the arguments advanced by the defence and keeping in view the checks and balances available on record. Admittedly, Jasoda and Sushila both minor daughters of the deceased and the appellant Kamla were sleeping in the house when the incident is alleged to have occurred. While Jasoda claims that she saw the incident, her sister Sushila (PW-14) stated that both of them slept through the night and came to know of the death of their father when they woke up in the morning. In this background, we have to analyze and evaluate whether or not the contradictions appearing in the statements interse of these two witnesses and the other supervening circumstances are so significant that they can fatally affect the evidentiary worth of the statement of Sushri Jasoda whose statement under Section 161 Cr.P.C. was recorded by the I.O. on 02.02.2009 i.e. after three days of the incident. In course of natural human conduct and the innocent behaviour expected from a child, it cannot be conceived that Jasoda, having allegedly seen the ghastly incident of murder of her own father would not disclose the same to her sister.
Sushila (PW-14) stated as below in her evidence:-
"ml fnu ge 9 cts lks x;s Fks vkSj esjs firkth Hkh 9 cts lks x;s FksA fQj esjs ikik dks ekjkA fQj eSa ugha tkxhA eSa iqfyl vkbZ rc tkxh tks mlh fnu jkr dks txhA vkSj iqfyl us vkMk [kqyk;k Fkk vkSj esjh eka jksusa yxhA fQj eS mBh vkSj tlksnk lksbZ gqbZ FkhA tlksnk fdl le; mBh fQj dgka lqcg mBhA tlksnk us eq>s dqN ugha dgkA ml le; esjs firkth tsikjke ds edku ds ihNs Fks tks eSaus lqcg ns[kk FkkA esjs firkth dks ejs gq, ns[kkA xkao okys o iqfyl okyksa us crk;k fd Hkksekjke o deyk us esjs firk dks ekj fn;kA esjs firkth dks D;ksa ekjk eSa ugha crk ldrh gwaA .................................... esjs firkth 9 cts okil vk x;s Fks vkSj vkrs gh iksy esa lks x;s Fks vkSj eq>s rks uhan vkbZ gqbZ FkhA............................................. iqfyl okys vk;s vkSj esjh eka jksbZ ml le; tlksnk ugha tkxh FkhA tlksnk esjs ckn esa txh FkhA tlksnk esjh NksVh cgu gS vkSj eSa cM+h gwa vkSj eSa mlls I;kj djrh gwaA oks eq>ls dksbZ ckr ugha Nqikrh gSA ml fnu esjs o tlksnk ds chp dh ckr phr ugha gqbZ Fkh ;g lgh gSA tlksnk us eq>s dqN ugha crk;kA"
(10 of 16) [CRLA-781/2012] Manifestly, from the above referred parts of the testimony of Sushila, it emerges that both, she and Jasoda, went to sleep at about 9 o' clock. She stated that her father had gone to sleep in the courtyard. Even the possibility of these girls actually having seen Lumbaram returning home and going to sleep in the courtyard and is in itself very bleak. Sushila, categorically stated in her evidence that she woke up at about 7 o' clock on the morning next to the incident and that Jasoda woke up after she had arisen. Jasoda did not tell her anything about the incident. Admittedly, the appellants Bhomaram and Kamla were arrested vide arrest memos (Ex.P/5 and Ex.P/6 respectively) at 06.00 pm. and 06.15 pm. on 31.01.2009 itself. Both the girls, thereafter went to live with their uncle Devaram (the first informant). Thus, there was no reason for Jasoda to keep silent thereafter and not divulge immediately that she had seen her mother and the accused appellant Bhomaram killing her father Lumbaram on the previous night. In the normal expectation of human behaviour, she would definitely have shared this information with her sister Sushila if she really was an eye-witness of the incident. However, she made no attempt to do so and divulged these facts for the first time to the I.O. as late as on 02.02.2009. Even PW-13 Shivram (the elder brother of these two girls) admitted in his cross-examination that Jasoda and Sushila did not tell him anything about the incident. Since, as per the FIR, the deceased was allegedly murdered in his own house, the I.O. was definitely duty bound to question all the inmates of the house including both the girls i.e. Sushila and Jasoda at the first opportunity. His failure to do so for three days brings the entire investigation under a shadow of doubt.
(11 of 16) [CRLA-781/2012] As a result, we are of the opinion that the evidence of the star prosecution witness Jasoda is not convincing and rather, she appears to have been tutored by Devaram to give a fabricated statement after three days of the incident in keeping with the specific defence plea. Our conclusion to this effect is also fortified from the fact that Devaram himself (examined as PW-12) at the trial) and Jasoda (PW-11) both admitted that after the death of Shri Lumbaram and after the appellant Kamla had been sent to prison, Devaram is cultivating all the fields of Lumbaram. We have strong additional reasons to conclude that the entire prosecution case has been concocted and manipulated by Devaram in connivance with the investigating officer PW-23 Madanlal. It is an admitted position as evident from the record that Jasoda did not tell anyone that she had seen the incident happening and spoke out for the first time on 02.02.2009 when her statement was recorded by the investigating officer. During this period, she was in the custody and control of Devaram whose house is adjacent to the house of Lumbaram. There is no allegation in the FIR that the deceased had been murdered in the house. Devaram (PW-12) did not and could not have mentioned in the FIR that the deceased was murdered in his house because he was not an eye-witness of the incident. Thus, the investigating officer could not have surmised as to the manner and location where the incident precisely took place. However, upon minutely examining the site inspection plan (Ex.P/11) prepared on 31.01.2009, it emerges that in this document, the investigating officer emphatically noted as to where the deceased was sleeping; where the accused assaulted him; and in what manner, the accused cleaned the floor after committing the murder. In this very site inspection plan, it is (12 of 16) [CRLA-781/2012] mentioned that all these facts were divulged to the I.O. by the complainant Devaram. As Devaram was not an eye-witness of the incident and he did not even know where Shri Lumbaram was murdered, it is beyond comprehension as to how he could tell the I.O. such minute details about the precise manner in which the murder was committed and how the site was cleaned up. The accused have taken a specific plea in their defence that the deceased Lumbaram died in a road accident. Three witnesses DW-
1 Jasaram, DW-2 Narayan and DW-3 Joraram were examined for proving the defence theory. All narrated that they saw Lumbaram colliding with an an unidentified motorcycle in the night. We have gone through the evidence of these witnesses and find that no significant cross-examination was conducted by the prosecution from these witnesses so as to discredit their deposition in examination-in-chief. Even the prosecution witness Bhanwar Lal Sirvi (PW-18) admitted in his cross-examination that an unknown motorcycle rider, collided with Lumbaram due to which, he expired. The witness thereafter, approached Devaram and told him about the accident. It is the pertinent assertion of Sushri Jasoda (PW-11) that the accused were having a hammer as well as an axe and that both of them inflicted one head injury to the deceased by the axe. The dead body was then tied up in a dhoti and was carried away by both the accused. The I.O. recovered an axe at the instance of the accused appellant Bhomaram vide recovery memo (Ex.P/2). However, the Medical Officer Dr. Niranjan Singh (PW-21) in his evidence, while describing the nature and dimensions of the injuries of the deceased, noted that all seven injuries caused to the deceased were lacerated wounds, swellings and abrasions. Not a single injury caused by a sharp weapon was (13 of 16) [CRLA-781/2012] noticed by the Medical Officer. The doctor admitted that if a person falls on a hard ground after colliding with a vehicle, the injuries No.1 to 7 could be possibly caused. Thus manifestly, the statement of PW-11 Jasoda is not corroborated and is rather contradicted by the evidence of medical officer. Total absence of blood stains on the cot on which the deceased was sleeping and the floor nearby, also creates a great doubt on her version that the deceased was assaulted and killed while he was sleeping in the courtyard of his house. There is yet another strong circumstance which compels us to hold that the deceased received the injuries in a road accident. Jasoda alleged in her evidence that after murdering Shri Lumbaram, the accused appellant tied up the deadbody in his own Dhoti, carried it away and threw in the well of Jepa. However, as per the site inspection plan (Ex.P/10), the deadbody was not found tied up in any Dhoti, etc. As per various memos prepared at the spot, the blanket of the deceased and his Jutis were found lying near the deadbody. His mobile was found hanging on his neck with a loop. It is indeed a matter of great surprise as to why the accused, while carrying the deadbody, would take the trouble to carry with them the blanket and the Jutis of the deceased for distance of almost 100 yards from his house. Manifestly thus, the theory put-forth by the defence that the deceased was walking down the road and an unknown motorcycle rider, collided with him resulting into the fatal accidental injuries being caused, is closer to the truth, rather than the concocted and manipulated testimony of Sushri Jasoda (PW-
11) and Devaram (PW-12). In view of the fact that Jasoda was examined by the I.O. as late as on 02.02.2009 we have to appreciate her evidence with circumspection and since we find (14 of 16) [CRLA-781/2012] that her testimony is contradicted in material particulars by the concomitant circumstances noted above, it would be totally unsafe to rely upon the same. Our view is fortified from the following observations made by Hon'ble the Supreme Court in the case of Ganesh Bhavan Patel and Ors. Vs. State of Maharashtra reported in AIR 1979 SC 135:-
"15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 Cr.P.C. were recorded on the following day. Welji (P.W. 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. .....
29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."
So far as the recoveries made by the I.O. are concerned, suffice it to say that the prosecution did not get the FSL report exhibited during the course of the trial. We note that while questioning the accused under Section 313 Cr.P.C., the trial court framed a question about the FSL report but, surprisingly enough, after minute sifting of the record, we failed to locate the FSL (15 of 16) [CRLA-781/2012] report on the entire case file. Furthermore, even the list of exhibits does not refer to the FSL report. Manifestly thus, the recoveries made at the instance of the accused lose all sheen and become redundant.
In view of the discussion made herein above, and since we have conclusively arrived to a satisfaction that the evidence of PW-11 Jasoda, the sole prosecution eye-witness, is not reliable and that she is a planted witness and since, we find merit in the defence plea that Devaram connived to falsely implicate the accused so that he could lay hands on the property of the deceased, and as the defence theory of accidental death of Shri Lumbaram is more probable, plausible and corroborated by the medical evidence, we feel that the trial court fell into grave error while appreciating the evidence available on record and recording the guilt of the accused by the impugned judgment which is totally unsustainable.
As an upshot of the above discussion, the appeal is allowed. The impugned judgment dated 31.07.2012 passed by the learned Sessions Judge, Pali, in Sessions Case No.39/2011 is hereby quashed and set aside. The appellants Bhoma Ram and Smt. Kamla are acquitted of the charges. The 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 Cr.P.C., each of the 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 (16 of 16) [CRLA-781/2012] 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
3-Tikam/-
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