Rajasthan High Court - Jodhpur
Mukesh Kumar vs State on 29 August, 2018
Author: Virendra Kumar Mathur
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 132/2009
Mukesh Kumar s/o Ram Kumar, by caste Brahmin, r/o Ward No.3,
Suratgarh, District Sri Ganganagar (Raj.) {at present lodged in
Sub Jail, Suratgarh}
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 131/2009
Birbal s/o Sher Chand, by caste Oud, r/o Ward No.3, Suratgarh,
District Sri Ganganagar (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr R.S. Gill
For Respondent(s) : Mr C.S. Ojha, Public Prosecutor
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Dr Justice Virendra Kumar Mathur Date of pronouncement: (29)/08/2018 These Criminal Appeals under sec.374 (2) CrPC have been filed against judgment dated 29.01.2009 passed by Additional Sessions Judge (Fast Track), Anupgarh HQ Suratgarh in Sessions Case No.25/2008 (24/2007), whereby learned trial court has convicted accused-appellant Mukesh for offence under Secs.302, [CRLA-132/2009, 131/2009] (2 of 30) 201 & 120-B IPC and convicted the accused-appellant Birbal for offence under secs.4/25 of the Arms Act and sentenced them in the following manner:
accused-appellant Mukesh Kumar Under sec.302 IPC- life imprisonment with fine of Rs.5000/-, in default of payment of fine to undergo further one year's simple imprisonment Under sec.120-B IPC- rigorous imprisonment for 10 years with fine of Rs.1000/-, in default of payment of fine to undergo further six months' simple imprisonment Under sec.201 IPC- rigorous imprisonment for 3 years with fine of Rs.1000/-, in default of payment of fine to undergo further six months' simple imprisonment accused-appellant Birbal Under sec.4/25 of Arms Act- three years' simple imprisonment with fine of Rs.1000/-, in default of payment of fine to undergo further six months' simple imprisonment Briefly stated, on 01.06.2006 a written report was filed before the SHO, Police Station Suratgarh about missing of Ram Kumar, father of the complainant, about 20 days back. On that report, Police started investigation and two Constables were directed for vigilance in this matter, who thereafter informed to the SHO that accused Mukesh Kumar and his mother have killed Ram Kumar and his dead body was buried in their latrine pit. On this information, Police registered FIR No.187/2007 against the accused-appellant Mukesh Kumar and his mother, they were arrested and skeleton of dead person Ram Kumar was recovered from latrine pit.
For recovery of the dead body, ADM Suratgarh was informed who remained present at the site and in the presence of witnesses [CRLA-132/2009, 131/2009] (3 of 30) Mahaveer Singh and Gurdayal Singh, skeleton bones of a dead body were taken up from the pit by Jamadar of Municipal Board, Suratgarh. Memo of recovery of the dead body Ex.P2, memo of description of dead body Ex.P3, memo of recovery of clothes of dead person Ex.P5, memo of recovery of shoes, spectacles, cycle- chain cover Ex.P6, memo of recovery of blood-smeared soil Ex.P7 and memo of recovery of lime from place of incident Ex.P9 were prepared. A blanket, 'tirpal' (tarpaulin), clothes lying near skeleton of dead person were recovered vide Ex.P10. Site-plan Ex.P11 and Ex.P11-A and other necessary memos were also prepared.
After investigation, charge-sheet was filed against accused- appellant Mukesh and his mother Sita Devi for offence under secs.302, 201 and 120B IPC as also against accused-appellant Birbal Ram for offence under sec.4/25 of the Arms Act. The accused denied charges and prayed for trial.
The prosecution examined 25 witnesses and exhibited 68 documents and further produced Articles 1 to 12. The accused were examined under sec.313 CrPC. In their statements, the accused stated the prosecution story to be false and pleaded innocence. No witness was examined in defence but exhibited documents D1- statement of Dharmendra Singh, D2 statement of Lokesh Kumar and D3 photographs.
The trial court, after hearing learned counsel for the parties, convicted and sentenced the accused-appellants as aforesaid vide judgment dated 29.01.2009. On the date of decision, accused Sita Devi moved an application to dispense with her personal [CRLA-132/2009, 131/2009] (4 of 30) attendance on the ground that her son Mohan Lal is suffering from schizophrenia and there is no other person to look after him but the same was dismissed. However, in absence of Sita Devi, no order of punishment was passed regarding accused Sita Devi.
Being aggrieved by the judgment dated 29.01.2009, accused Mukesh Kumar and Birbal Ram have filed two separate appeals, being Cr. Appeal No.132/2009 and Cr. Appeal No.131/2009. Both the appeals, arising out of same judgment dated 29.01.2009 and pertaining to same incident and based on same set of facts, are being decided by this common judgment.
It was contended that there are many contradictions, omissions, improvements and deviations in the prosecution evidence but the learned trial court failed to appreciate the same in right prospective, hence, the impugned judgment deserves to be quashed. It was also contended that the trial court convicted the appellant as dead body of deceased was recovered on his instance but this fact is wrong because PW3 Dharmendra stated that on the basis of some source he came to know that Mukesh and his mother has killed Ram Kumar and buried the dead body in a pit in their house. When this fact was in the knowledge of prosecution witness then purpose of information under sec.27 of the Evidence Act is redundant. It was also contended that the trial court has convicted the accused-appellant on the basis of recovery of skeleton, old cycle chain cover, shoes, spectacles, some clothes but these articles were not identified that the same belonged to the deceased and there is no medical opinion about gender, age, [CRLA-132/2009, 131/2009] (5 of 30) of the dead body and it can not be said that it was body of deceased Ram Kumar. There is evidence on record that place from where the dead body was recovered, was a burial point. However, these aspects of the were not considered and by relying on evidence of PW3 Dharmendra, the trial court convicted the accused persons. Hence, the judgment dated 29.01.2009 is not sustainable.
It was also contended that when Police recovered the skeleton after 7 months of alleged murder and there was no skin on the dead body but the Police has found some clothes and other articles belonging of deceased, traced some blood stains, are not believable because in 7 months clothes would not be remaining in same condition and whole prosecution story seems to be fabricated. It was also contended that daughter of the deceased Rani has not supported the prosecution story and was declared hostile. Other independent witnesses also have not corroborated Police version and for this reason whole prosecution case became false. It was further contended that Police recovered a 'katar' at the instance of accused-appellant Mukesh, from possession of accused Birbal, with blood stains, is highly unbelievable because if the 'katar' would have been used in this crime then it is human conduct to remove blood stains and wash the weapon. Further when Birbal received back 'katar', why he ignored blood stains. This is very abnormal and against human nature. The learned trial court has not considered all these facts properly, hence, the impugned judgment is not sustainable.
[CRLA-132/2009, 131/2009] (6 of 30) It was also contended that the trial court based its judgment on conduct of the accused that the accused after killing his father sold the property of his father but as per statement of PW12 Tara Chand he had sold the property on 27.02.2006 before death of Ram Kumar and Ram Kumar had made an agreement to sale the plot but when date of registration of sale deed came, the accused had no alternative but to execute the sale deed but this fact also was not considered. It was also contended that the trial court convicted the accused on the basis that he killed his father and gave false report about missing of his father. The accused appellant made so many attempts to search his father, he went to Abohar with Police party and this fact is clarified from evidence of Dharmendra Singh, hence, conviction of the accused by the impugned judgment is not sustainable.
It was also contended that Police after 7 months of alleged occurrence recovered blood-stained clothes and 'katar' with 'B' group blood stains and the learned trial court on that basis convicted the accused, which is highly improbable because as per Police version the deceased was killed in April 2006 and it is impossible that the blood stains remained on clothes and weapon in buried condition. There is no direct evidence on record to connect the accused-appellant with the alleged crime and all the circumstances have also been wrongly considered against the accused appellants.
Per contra, learned Public Prosecutor vehemently opposed the contentions made by the accused appellants and contended [CRLA-132/2009, 131/2009] (7 of 30) that facts of the FIR stand fully corroborated by the fact that on the basis of information under sec.27 of the Evidence Act by the accused Mukesh Kumar, at his instance the skeleton of dead body of Ram Kumar was recovered from latrine pit and along with this, kachha, dhoti, janeu, old chain cover of cycle, spectacles etc were also recovered. The employees of the Municipal Board - PW6 Puran Ram, PW9 Virendra and PW22 Mangla Ram recovered these articles. At the time of recovery, the Investigation Officer remained present and the accused Mukesh Kumar and Sita Devi were also present, who identified recovered articles.
Whole prosecution case is based on circumstantial evidence. The first circumstance as per the FIR is missing report lodged by accused Mukesh Kumar and second circumstance is, after lodging of the report, improper behaviour of the accused. After the incident, accused Mukesh and Sita Devi sold plot of Ram Kumar to Jarnail Ram on 03.07.2006, to Tara Chand on 27.02.2006 and on 10.08.2006 and then to Jagjeet Singh on 29.11.2006 and obtained amounts of sale consideration. The relation between accused and deceased were strained on account of sale of these properties. During his lifetime, the deceased did not allow sale of these properties.
As per missing report, the deceased was missing from house of Mukesh and Sita Devi and later, the dead body was recovered at the instance of accused in pit of latrine and along with the dead body, clothes of deceased, shoes, janeu, spectacles, old chain cover of cycle etc were also recovered and at the instance of [CRLA-132/2009, 131/2009] (8 of 30) Mukesh under sec.27 of the Evidence Act, 'katar' was recovered from accused Birbal Ram. On chemical examination, blood stains of 'B' group were found on kachha, dhoti and 'katar'. All these circumstances connected the accused with the commission of crime. It was also contended that although PW1 Rani, daughter of the deceased Ram Kumar, was hostile and PW2 Gurdayal Singh and PW5 Mahaveer Prasad also turned hostile yet no adverse effect is caused on the prosecution case against accused because PW13 Dr Jayant Kumar Vyas who conducted postmortem, bundle of bones was examined and an inference was drawn that it was a case of homicidal death. The Investigation Officer in this case has proved other proceedings in connection with recoveries. The recovered articles were sent for chemical examination and FSL reports were obtained, being Exhibits P66 and P67 on record. PW3 Dharmendra Singh, PW4 Lokesh Singh and PW25 Dalpat Singh in their statements have proved the commission of crime by the accused appellants.
Heard learned counsel for the parties and perused evidence placed on record.
PW13 Dr Jayant Kumar Vyas, who was posted as Medical Officer in Government Hospital, Suratgarh on 30.03.2007, stated that only bundle of bones were brought for postmortem and Medical Board prepared postmortem report Ex.P27. As per report Ex.P27, the bundle of bones brought by Police includes skull, mandible, scapula-2, humerus-2, radius-2, ulna-2, sternum, [CRLA-132/2009, 131/2009] (9 of 30) clavicle-1, sacrum, iliac bone-2, femer-2, tibia-2, fibula-2, few ribs and vertibra, few small bones of hand and feet and a small bunch of hairs. No bony injury seen on dome of skull, all the bones are separated as joints are dissolved and decomposed. It was also remarked that the skeleton is more than 6 months old. All the bones were packed and sealed in wooden box and sent to FSL Bikaner for detection of origin, sex, age, height, nature of injury, cause of death and DNA test. Further, in the opinion, it was stated that no cause of death can be given as all the viscera are absent due to heavy decomposition.
The crime scene report of the place of incident was sought and received from the FSL, marked as Ex.P58. From perusal of Ex.P58 Scene of Crime report, it reveals that the spot was thoroughly searched for blood stains and other clue material. All suspected stains were chemically tested and following observations were made:
1. Blood was detected on dhoti and kachha (photo No.2)
2. Size of latrine well was 14 feet deep and 4 feet in diameter (Photo No.3), blood was detected in soil of this well
3. Bones exhumed from latrine well in the form of lumps mixed with soil (photo No.4). Bones (skull with mandible, long bones, pelvis, vertebrae, ribs etc) were separated from lumps (photo No.5, 6) and few hairs were also present in these lumps.
As per report Ex.P58, the Investigation Officer was present during site inspection. The IO was instructed regarding lifting, packing, sealing and forwarding of the skeleton to FSL for further [CRLA-132/2009, 131/2009] (10 of 30) anatomical (origin, sex, age, stature etc) and DNA examination. He was further advised to send the blood smeared soil from latrine well, control samples of soil, blood stained clothes and all other related exhibits including hair to FSL for further examination.
The FSL report made by the Regional Forensic Science Laboratory, Jodhpur is Ex.P66. As per report Ex.P66, on Serological examination, blood stains on following articles were found to be of 'human' origin:
1,2,3 (From A) {Underwear, Dhoti, Janeoo thread) 4,5,6 (from B) {Shoe pair, Spectacles, Chain cover of bicycle) 7 (from C) { Blood smeared soil} 9 (from E) { Kali} 10, 11, 12, 13 (from F) {Kambal, Tirpal, burnt Cloth piece, burnt Bori} 14 (from G) {Katar} and, following articles were found to be stained with 'B' Group blood:
1,2 (from A) {underwear, dhoti} 7 (from C) {blood smeared soil} 14 (from G) {katar} The blood group of stains on following articles could not be determined - 3 (from A), 4, 5, 6 (from B), 9 (from E), 10, 11, 12, 13 (from F) as the result of analysis remained inconclusive.
The report Ex.P67 from State Forensic Science Laboratory, Jaipur reveals that on morphological and anatomical examination, Exhibit No.1 (from packet marked X) were found to be bones of a human adult male, no definite opinion could be drawn regarding injury and cause of death and Exhibit No.2 (from packet X) was found to be human hair.
[CRLA-132/2009, 131/2009] (11 of 30) So far as DNA typing evidence for establishing identity, report Ex.P68 placed on record reveals that the source of Exhibit-A (a long bone said to be femur bone and powder said to be femur bone powder of the deceased) did not yield DNA profile for comparison with the DNA profiles of the source of Exhibit-B (DNA sample said to be of Shri Mukesh Kumar) and Exhibit-C (DNA sample said to be of Shri Bindu Pal). In the conclusion, it was stated that since DNA from the source of Exhibit-A (a long bone said to be femur bone and powder said to be femur bone powder of the deceased) is essential for comparison with the source of Exhibit-B (DNA sample said to be of Shri Mukesh Kumar) and Exhibit-C (DNA sample said to be of Shri Bindu Pal), therefore, no opinion is being furnished.
In the present case, admittedly there is no eye-witness and whole prosecution story is based on circumstantial evidence; in such circumstances, it would be appropriate to have a look upon the law relating to circumstantial evidence. In the matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the [CRLA-132/2009, 131/2009] (12 of 30) conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
The above enunciated principle of law was reiterated in the matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, where the Supreme Court, inter alia, observed thus:
"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
In the light of above enunciated principle of law, we now proceed to analyze the evidence.
PW1 Rani Sharma, who is daughter of the deceased, turned hostile and PW2 Gurdayal Singh who is one of the witnesses in whose presence body was recovered from latrine-pit, also turned hostile. However, in his cross-examination, he admitted his signature on Exs.P13 and P14 as he is having knowledge of contents of this information.
PW3 Dharmendra Singh, who was posted as Constable at Police Station, Suratgarh on 18.07.2005, in his statement stated [CRLA-132/2009, 131/2009] (13 of 30) that on 01.02.2006 at about 12PM (accused-appellant) Mukesh Kumar submitted a report about missing of his father Ram Kumar s/o Ami Chand from the house. It was also stated that on search being made at the residence of relatives and friends his whereabouts could not be found. On this report, at the instructions of CO, duty of Subash Chand S.I., Lokesh Singh Constable and himself was assigned for finding out clues.
He further stated that upon receiving information from reliable source, it was found that the missing person Ram Kumar was murdered by his son Mukesh Kumar and wife Smt Sita Devi, for the purpose of grabbing property and the dead body was buried in latrine-pit of the house. This information was given to the Superintendent of Police and as per directions of SHO, Police Station Suratgarh, on 29.03.2007 at about 01:00PM Mukesh Kumar was called. Mukesh Kumar on the same day at about 1:45PM appeared before the SHO Shri Dalpat Singh Bhati. Upon interrogation, accused-appellant Mukesh Kumar admitted murder of Ram Kumar in conspiracy with his mother Sita Devi. On the same day, accused Mukesh Kumar was arrested vide Ex.P15.
In the cross-examination, this witness accepted that 10 days before lodging of missing person report by accused Mukesh Kumar, he had seen Ram Kumar. He knew him as Ram Kumar was performing seva-puja in Mandir in Ward No.27. This witness further admitted that the interrogation with Mukesh Kumar continued for about 45 minutes and during interrogation, he had admitted commission of the crime. At the time of recovery of [CRLA-132/2009, 131/2009] (14 of 30) skeleton from pit of latrine, this witness was also present there. He further stated that when the skeleton was taken out, there was no skin or flesh on it. Shoes, dhoti, kachha, a bicycle chain-cover, tirpal, kambal, gunny bag were found there. One spectacle and old clothes were also found and lime was also found placed in the pit. The bone-joints of the skeleton started dissolving due to decomposition. He further stated that articles, which were recovered, were sealed properly.
He also admitted that at the time of recovery of skeleton from latrine-pit, the plot was in possession of Rajendra Soni. It is also true that on that day, lock of Rajendra Soni was put on the door and keys were handed over by Rajendra Soni. He further stated that before him, Rajendra Soni stated to the Investigation Officer that Mukesh has sold this plot to him. It was further stated that at the place where skeleton was recovered, on one side there was vacant plot and on the other side, there is plot of accused Mukesh Kumar. In that plot, there is a small house and remaining plot is open.
PW4 Lokesh Singh in his statement stated that he was posted as Constable at Police Station, Suratgarh on 01.06.2006 when Mukesh Kumar came to the Police Station for lodging missing report of Ram Kumar Sharma and he was also in the investigation team. He along with Dharmendra and ASI Subhash Punia investigated the matter. From reliable sources, he received information that Ram Kumar was murdered by his son Mukesh Kumar and wife Sita Devi and his body was buried in latrine pit.
[CRLA-132/2009, 131/2009] (15 of 30) This information was given to Superintendent of Police. He further stated that on interrogation with Mukesh, he admitted that he and his mother murdered Ram Kumar and body was buried in the latrine-pit. Thereafter, the body was taken out from the pit.
In his statement, he stated that it is true that the investigation team received information about Ram Kumar that he was doing seva-puja in Hanuman Mandir and since 7-8 months prior to the incident and he was missing about 20 days before lodging of the missing report. This witness further stated that it is true that Ram Kumar usually, after having hot talks within the family, would leave his home and stay at Hanuman Mandir for number of days and performs puja.
PW5 Mahaveer Prasad in his statement admitted his signature on recovery memos Exhibits P2, P3, P4, P5, P6, P7, P8, P9, P10 & P11. He further stated that Police recovered 8-10 bones before him and no other proceeding was undertaken before him. This witness was declared hostile. In the cross-examination, this witness stated that the plot from where Police recovered the bones belongs to some Soni.
PW6 Puran Ram, who is working as Jamadar in Municipal Board Suratgarh, stated that he along with four other employees went to 'nohra' in Ward No.3 and we did not know to whom the 'nohra' belongs. There was Police standing and we recovered some bones, which deteriorated. He categorically stated that accused Mukesh was not there. He further stated that except few bones, [CRLA-132/2009, 131/2009] (16 of 30) the employees with him did not recover anything else. At the request of the prosecution, this witness was declared hostile.
PW7 Phool Chand Soni, who was witness of recovery memo Ex.P17, refused that any recovery was made before him. This witness was also declared hostile. In the cross-examination, this witness admitted signature on recovery memo Ex.P17 and arrest memo Ex.P18.
PW8 Indrabhan, who is also witness of recovery memo Ex.P17 and arrest memo Ex.P18, was declared hostile. PW9 Virendra, who is an employee of the Municipal Board and was one of persons in the team of Puran Ram Jamadar stated that from a pit they recovered only bones and nothing else was recovered from kui (pit). He also stated that at that time only Police persons were present there and accused Mukesh and Sita Devi were not present. This witness was also declared hostile.
PW10 Sushil Kumar, who is one of persons in the team of Jamadar Puran Ram of Municipal Board, stated that from the kui only bones were recovered and spectacles, dhoti, bicycle chain cover, shoes, janeu were not recovered from the kui. He further stated that along with him Virendra, Mangla Ram and Puran Jamadar were also there. This witness was also declared hostile.
PW11 Jarnail Ram stated that on 03.07.2006 he purchased plot measuring 24x60 square feet for Rs.2,93,000/- by agreement from Mukesh and his mother Sita Devi and the plot which he purchased was in possession of Mukesh and Sita Devi. He had no knowledge about dispute between Sita Devi and Ram Kumar. He [CRLA-132/2009, 131/2009] (17 of 30) produced Ex.22 and certified copy of agreement Ex.P22A. This witness was also declared hostile.
PW12 Tara Chand stated in his examination-in-chief that he purchased plot measuring 30x60 square feet for Rs.2,00,000/- on 27.10.2007 and also purchased another plot measuring 24x60 square feet in the name of his son Sita Ram for Rs.3,05,000/- on 10.08.2006. Both these plots were purchased from Mukesh. The agreement of these plots is Ex.P24, original Agreement is Ex.P25 and attested copy of the agreement is Ex.P25A. This witness was also declared hostile.
PW14 Jagjeet Singh stated in the examination-in-chief that he purchased plot size 30x60 square feet at Suratgarh for a sum of Rs.1,66,000/- through Agreement Ex.P28. This witness was also declared hostile.
PW15 Mahaveer Prasad, who was posted as Constable at Police Station Suratgarh on 26.04.2007, stated that as per order of SHO in FIR No.187/07, he took 7 packets marked A, B, C, D, E, F, G in sealed condition for depositing in FSL, Jodhpur. These packets were handed over to Malkhana in-charge at the FSL vide Ex.P32. PW16 Smt Chandrakala was Malkhana in-charge at Police Station, Suratgarh. She stated that 7 sealed packets were handed voer to her and entry in this respect was made in the Malkhana Register vide Ex.P34. These Malkhana articles remained intact in sealed conver and handed over to Constable Mahaveer for depositing in the FSL.
[CRLA-132/2009, 131/2009] (18 of 30) PW20 Subhash Chandra, who was Investigation Officer, stated in his examination-in-chief that missing person report regarding Ram Kumar Sharma was lodged by accused Mukesh and he conducted investigation in that matter. During investigation, statement of Mukesh, Sita Devi and other witnesses were recorded. After recording statements, the investigation was handed over to Dalpat Singh Bhati. In the cross-examination, this witness stated that accused Mukesh and his mother Sita Devi during interrogation stated that Ram Kumar had dispute with his brothers regarding land but during investigation, this could not be verified and he has not made any inquiry to verify the fact of dispute regarding land.
PW22 Mangla Ram in his examination-in-chief stated that from kui only bones were recovered. On asking whether accused was present at the site at the time of recovery, he categorically stated that he was not there and further stated that nothing was recovered from the pit except bones. At the instance of prosecution, this witness was declared hostile.
PW23 Om Prakash is the person who filed charge-sheet in this case. PW24 Baljinder, who is cousin brother of accused Mukesh, was declared hostile. In the cross-examination, this witness stated that at the instance of his father's elder brother (Taya), Mukesh has given them share in the land and has also given documents.
PW25 Dalpat Singh stated in his examination-in-chief that on the information of FC Dharmendra he registered FIR No.187/2007 [CRLA-132/2009, 131/2009] (19 of 30) under secs.302, 201 and sec.34 IPC and started investigation. FIR is Ex.P50. He further stated that a skeleton was recovered and memo Ex.P2 was prepared. He further prepared memos Exhibits P3, P4 and P5 and also stated about recovery of blood stained soil and preparation of memo Exs.P7, P8 and admitted his signature on Exhibits P9 and P10. He also stated about preparation of Exs.P11 and P12 and verification of site memo Exs.P13 and P14. This witness further stated about information of accused Mukesh Ex.P51 and on the basis of information, skeleton body of deceased Ram Kumar was recovered and Ex.P2 was prepared.
He also stated about preparation of Exs.P11 & P11A and admitted his signature on these memos. The information regarding verification of site was recorded Ex.P52 and on that basis Ex.P12 was prepared. The information of Sita Devi with respect to site of incident was recorded in Ex.P53. He further stated about information given by Mukesh with regard to 'katar', which was recorded in Ex.P54 and on that basis, 'katar' was recovered and memo Ex.p17 was prepared. After recovery of 'katar', accused-appellant Birbal Ram was arrested and arrest memo Ex.P18 was prepared.
In the cross-examination, this witness stated that the information given by FC Dharmendra was recorded in FIR Ex.P50 and he admitted that Dharmendra informed about dead body of Ram Kumar, which was kept buried in latrine-pit by accused Mukesh and he also admitted that on 29.03.2007, Mukesh gave information under sec.27 of the Evidence Act that he has hidden [CRLA-132/2009, 131/2009] (20 of 30) body of Ram Kumar and it was same place, which was narrated by Dharmendra. He admitted that he instructed motbir witnesses Gurdayal and Mahaveer to reach at the recovery place and such instruction was not given in writing. The body, which was recovered from latrine kui was covered by stone slabs and there was no plaster on slabs.
He further stated that during interrogation in Police Station, accused Mukesh informed him that the keys are lying with Rajendra Soni. He has not given any notice to Rajendra Soni in respect of handing over of keys nor he has taken any document regarding proprietary rights of the plots and there were no marks from where sand was taken for filling up the pit. He has not investigated from where lime was purchased, which was found lying in the pit.
It is further admitted that except the skeleton, which was taken out from the pit, no other bones were found. He further stated that the Doctor, who performed postmortem did not state about whether bones in the skeleton were complete or not. The skeleton bones were decomposed and therefore, it can not be find out there was any jaw bone or not. He further stated that skull in the skeleton was found complete.
He further stated that other articles, which were recovered from pit i.e. spectacles, chain cover of bicycle, shoes etc were identified by witnesses as goods belonging to Ram Kumar and on that basis, skeleton was taken to be as belonging to Ram Kumar. He further stated that in respect of bicycle chain cover, which was [CRLA-132/2009, 131/2009] (21 of 30) recovered, he inquired about cycle and on inquiry, Mukesh informed that he sold the bicycle to a hawk (dckM+h). He did not take information in this regard under sec.27 of the Evidence Act. He further stated on the basis of spectacle, which was recovered, he has not inquired from any Optician. He also admitted that at time of sending the skeleton to FSL, he has not asked for report about shape of the skull and age of the person. He further admitted that he has no knowledge that photographs of skull and actual photo of the deceased can be matched. He further admitted that at the time of recovery of skeleton, no bunch of hairs was recovered.
He further admitted that he has not undertaken investigation with respect to blood group of the deceased. He has no knowledge that blood group can be determined from hairs. He also stated that he has not undertaken investigation in this respect because on recovery of clothes the identity of Ram Kumar was established. He also admitted that in the investigation, he has not inquired regarding the age, blood group, height and built of the person whose skeleton was recovered.
He further admitted that at the instructions of Superintendent of Police nearby mobile team reached to him for helping in investigation but he did not take the team to the hospital but informed that the skeleton was sent to hospital. He further stated that bones of skeleton compiled and filled in a bag which were sent to the hospital, the bag was not sealed. He further stated that the bones of skeleton were not kept in mortuary but it was kept outside the mortuary under care [CRLA-132/2009, 131/2009] (22 of 30) of Police. He can not give name of Constable who was posted for taking care of bones kept outside the mortuary at the backside.
He further admitted that during his investigation, this fact came to his knowledge that Ram Kumar occasionally resides in Hanuman temple. He has not investigated whether any personal belongings of Ram Kumar was left in temple. He further admitted that during investigation, no witness has informed him that he has seen Ram Kumar going to house of Mukesh or returning from his house. He further stated that in his investigation, no such thing came out that Ram Kumar has taken possession of land belonging to his brothers and there exist any dispute.
From the evidence placed on record, admittedly on 01.06.2006 missing person report was lodged by accused Mukesh Kumar. Thereafter, the then SHO constituted a team and one of members of the team, FC Dharmendra, on 29.03.2007 informed to the SHO Police Station Suratgarh that the missing person Ram Kumar was murdered by accused Mukesh and wife of the deceased- Sita Devi and the body was buried in latrine-pit behind house of the accused. On this information, FIR No.187/2007 was registered. From the evidence of PW25 Dalpat Singh, it has come out that on 30.03.2007, under the directions of Superintendent of Police, FSL Mobile Team reached at the spot and inspected the site of occurrence. This witness further stated that the FSL Mobile Team during inspection of the site of incident guided Police for recovery to be made from the spot but we had already collected all those things found in the latrine pit before instructions given by [CRLA-132/2009, 131/2009] (23 of 30) the Mobile FSL team. This witness further admitted that the recovered skeleton/bones were sent to Hospital on 29.03.2007 itself. He further stated that photographs Exs.P63 & P64 were taken by the FSL Mobile team at the Hospital.
In Ex.P58, the FSL has written about inspection of the site but it is not written that from which place photo was taken. It is also admitted by PW25 that at the time of sending skeleton for FSL examination, he had not written for report about shape of the skull and age of person whose skull was recovered. It is also admitted that the bunch of hairs were not recovered along with the skull.
On perusal of report Ex.P67, the FSL mentioned that on morphological and anatomical analysis, contents of Exhibit No.2 (from packet X) was found to be human hair and contents of Exhibit No.1 (from packet marked X) were found to be bones of a human adult male but no definite opinion could be drawn regarding injury and cause of death. On perusal of Ex.P68, DNA typing evidence for establishing identity, it was found that the source of Exhibit-A (a long bone said to be femur bone and powder said to be femur bone powder of the deceased) did not yield DNA profile for comparison with the DNA profiles of the source of Exhibit-B (DNA sample said to be of Shri Mukesh Kumar) and Exhibit-C (DNA sample said to be of Shri Bindu Pal). In the conclusion, it was stated that since DNA from the source of Exhibit-A (a long bone said to be femur bone and powder said to be femur bone powder of the deceased) is essential for [CRLA-132/2009, 131/2009] (24 of 30) comparison with the source of Exhibit-B (DNA sample said to be of Shri Mukesh Kumar) and Exhibit-C (DNA sample said to be of Shri Bindu Pal), therefore, no opinion is being furnished. Therefore, the DNA typing test for establishing identity of the deceased could not yield any result.
It is important to note that PW25 Dalpat Singh has stated in his evidence that while taking out the skeleton from latrine-pit, other things recovered were one spectacle, old chain cover of a bicycle, shoes and those articles were identified by witnesses to be belonging to Ram Kumar and on that basis, he concluded that the skeleton to be of Ram Kumar. In respect of recovery of chain cover of cycle, this witness further stated that when he inquired from Mukesh Kumar about the cycle, he stated that he sold the cycle to a hawk (waster-material buyer - kabaadi) and therefore, it could not be recovered nor any information in this regard was taken under sec.27 of the Evidence Act nor has he made any inquiry on the basis of spectacle from any Optician.
PW3 Dharmendra, on whose information FIR was registered, stated in his statement that he was present at the time of recovery of bones/skeleton and further stated about recovery of other articles along with the skeleton. He also stated about fact that the recovered articles were sealed before him by the Investigation Officer. He further stated that the plot from where the skeleton was recovered, on that day it was in possession of Rajendra Soni, it was locked and the keys were called from Rajendra Soni. He further stated that Rajendra Soni informed to [CRLA-132/2009, 131/2009] (25 of 30) the Investigation Officer that this plot was sold to him by accused Mukesh Kumar.
PW5 Mahaveer Prasad, who was one of the witnesses, in whose presence the recovery memos Exhibits P2, P3, P4, P5, P6, P7, P8, P9 and P10 were stated to be prepared; this witness admitted his signature on Ex.P11 at place C to D but stated that all these memos Exs.P2 to P11 were signed by him in Police Station where he was called to sign. He further stated that 8-10 bones were recovered by Police before him and no other thing was taken out from the pit before him. He also stated that Ex.P2 was not prepared before him, he signed all the memos at the Police Station. This witness was declared hostile. In the cross- examination, this witness stated that it is wrong to say that Police recovered clothes of deceased Ram Kumar, janeu etc before him. It is also wrong to say that chain cover of cycle mentioned in Ex.P6 was recovered before him and it is also wrong to say that he has seen chain cover, janeu, spectacle, kambal, tirpal, to be recovered before him. He was present at the time only when bones were recovered and thereafter, he had left the place.
PW2 Gurdayal, who was also called as witness of recovery to be made from latrine-pit, this witness was also declared hostile. In the cross-examination, he admitted his signature on Ex.P11, P2 and P13. He further stated that on all the memos from Ex.P2 to P10, his signature were obtained at the place where Police was standing. He refused that he was standing at the site at the time of recovery of skeleton by Police. He also stated that it is wrong to [CRLA-132/2009, 131/2009] (26 of 30) say that the clothes, janeu etc of deceased were recovered by Police and it is also wrong to say that Police recovered shoes, spectacle and cycle chain cover and it is also wrong to say that the Police recovered blood stained soil and prepared Exs.P7, P8 & P9 before him. He also stated that it wrong to say that Police recovered Kambal, tirpal and old clothes and prepared memo Ex.P10. He also refused that Police prepared Ex.P11 before him.
Thus, the recovery of other articles except skeleton becomes doubtful from the prosecution evidence.
PW6 Puran Ram, who was posted as Jamabadar in the Municipal Board, Suratgarh, in his examination-in-chief stated that the Executive Officer of the Municipality instructed him for digging latrine-pit two years ago. He took four employees - Virendra s/o Jai Ram, Sushil s/o Shiv Kumar, Mangla Ram s/o Sadhu Ram and Indra s/o Phusa Ram with him. This witness stated that they recovered bones, which were decomposed. When question was put to this witness whether accused Mukesh Kumar was present at the site or not?, then this witness stated that he was not there. This witness further stated that except bones, no other articles were recovered. This witness was declared hostile.
All other employees of the Municipal Board, who participated in digging of the latrine-pit, were also produced as witnesses by the prosecution. PW9 Virendra admitted that they performed digging and only bones were recovered and no other articles were recovered except bones. This witness was also declared hostile. PW10 Sushil Kumar also stated in examination-in-chief that after [CRLA-132/2009, 131/2009] (27 of 30) depth of 10-12 feet, a skeleton was recovered and spectacle, dhoti, janeu, shoes, chain cover of cycle articles were not recovered. This witness was also declared hostile. PW22 Mangla Ram also corroborated the statement of Virendra Kumar and Sushil Kumar and stated that after depth up to 10-12 feet, only bones were recovered and except bones, no other articles were recovered. This witness was also declared hostile.
Thus, recovery of other articles except skeleton is not established. The FSL report Ex.P66 also shows blood group of stains on following articles could not be determined - 3 (from A), 4, 5, 6 (from B), 9 (from E), 10, 11, 12, 13 (from F) as the result of analysis remained inconclusive. Under these circumstances, it is not established beyond reasonable doubt that the recovered skull and bones were of missing person Ram Kumar.
So far as motive is concerned, PW3 Dharmendra in his statements and cross-examination stated that he does not remember as to who corroborated about dispute between father and son regarding property. It is true that Ram Kumar was holding plots on the basis of possession. He further stated that he has no knowledge that in the Municipality, plots were recorded in the name of Sita Devi or in the name of other person. PW11 Jarnail Ram in his examination-in-chief stated that Ram Kumar was father of accused Mukesh Kumar and on 30.07.2006, he purchased plot measuring 24x60 square feet for Rs.2,93,000/- by agreement from Mukesh and his mother Sita Devi and the plot which he purchased was in possession of Mukesh and Sita Devi. He had no [CRLA-132/2009, 131/2009] (28 of 30) knowledge about dispute between Sita Devi and Ram Kumar. This witness was declared hostile. In the cross-examination, he stated that in the Police statement Ex.P23, he has not given statement at A to B portion. He further stated that he has not given statement at C to D portion. PW12 Tara Chand also stated that he purchased plot measuring 30x60 square feet for Rs.2,00,000/- on 27.10.2007 and another plot measuring 24x60 square feet in the name of his son Sita Ram for Rs.3,05,000/- on 10.08.2006 from accused-appellant Mukesh Kumar. He further states about original Agreements Ex.P25. This witness was also declared hostile. In the cross-examination, he stated that he has not given Police statement Ex.P26 at portion A to B and at portion C to D. From the statement of the prosecution witnesses, it is not established that there existed dispute between Ram Kumar and Sita Devi regarding property and she with her son conspired to murder Ram Kumar for the property. The agreements placed on record were found to be of dates before lodging of missing person report about his father by accused Mukesh Kumar.
PW7 Phool Chand stated that the accused Birbal Ram is known to him. He stated that Police has not recovered anything from Birbal Ram before him. This witness was declared hostile. In the cross-examination, he admitted his signature on recovery memo Ex.P17 at A to B place and arrest memo Ex.P18 and memo of recovery place Ex.P19. He refused that Police recovered 'katar' before him and prepared memo Ex.P17. PW8 Indrabhan, who is also witness of recovery of 'katar', was declared hostile. In the [CRLA-132/2009, 131/2009] (29 of 30) cross-examination, he admitted his signature on Ex.P17 at place C to D and on Ex.P18 at place C to D and on Ex.P19 at place C to D but refused that 'katar' was recovered by Police before him.
On perusal of Ex.P66, report of the Regional Forensic Science Laboratory, it was found that on the 'katar' blood stains with 'B' group blood were found but there is no evidence on record, which can connect the accused persons with the commission of the crime. In this case, identity of recovered skeleton, as of missing person Ram Kumar, is not established. The circumstances, from which an inference of guilt is sought to be drawn, have also not been cogently & firmly established.
In view of this, conviction of the accused-appellants by impugned judgment dated 29.01.2009 can not be sustained.
Accordingly, the appeals are allowed. The judgment of conviction and order of punishment dated 29.01.2009 passed by the Additional Sessions Judge (Fast Track), Anupgarh HQ Suratgarh in Sessions Case No.25/2008 (24/2007) is set aside and appellants Mukesh Kumar s/o Ram Kumar and Birbal s/o Sher Chand are acquitted of the charges levelled against them.
The accused-appellant Mukesh Kumar has been in imprisonment. He be released from the imprisonment immediately, if not required in any other case. The accused- appellant Birbal is on bail. His bail bonds are discharged. He need not surrender.
Keeping in view, however, the provisions of sec.437-A CrPC, the appellants 1) Mukesh Kumar s/o Ram Kumar and, 2) Birbal s/o Sher [CRLA-132/2009, 131/2009] (30 of 30) Chand are directed to forthwith furnish a personal bond in the sum of Rs.30,000/- and a surety bond in the like amount, each, 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 Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court. (VIRENDRA KUMAR MATHUR),J (SANGEET LODHA),J Powered by TCPDF (www.tcpdf.org)