Rajasthan High Court - Jodhpur
Ghewa Ram And Anr vs State on 7 April, 2020
Bench: Sandeep Mehta, Abhay Chaturvedi
(1 of 54) [CRLA-1012/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1012/2016
1. Ghewa Ram S/o Shri Jepa Ji Mali, R/o Maheshwari Colony,
Bhinmal, Distt. Jalore. Raj.
2. Kailash Nath S/o Shri Aas Nath Swami, R/o Village
Gundau, P.s. Karda, Distt. Jalore Raj. Lodged At Central
Jail, Jodhpur
----Appellants
Versus
The State Of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 1011/2016
Ishwar Puri S/o Veerpuri @ Meerpuri, Siwada Ps Chitlana Distt.
Jalore
----Appellant
Versus
The State Of Rajasthan
----Respondent
D.B. Criminal Appeal No. 1091/2016
Shankerlal S/o Sh. Mesaji, Rebariyon Ka - Gulia, Bhinmal,
District Jalore Raj Presently Lodged In Central Jail, Jodhpur
----Appellant
Versus
State Of Rajasthan Through Public Prosecutor
----Respondent
D.B. Criminal Appeal No. 38/2017
Kalyan Puri S/o Ranchod Puri, R/o Maheshwari Colony, Bhinmal,
Distt. Jalore. Lodged At Central Jail, Jodhpur
----Appellant
Versus
The State Of Rajasthan
----Respondent
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D.B. Criminal Appeal No. 2125/2017
Ashok Kumar S/o Shri Chandraji Alias Chandan Singh, By Caste-
Rawna Rajput, R/o Sai Ji Ki Beri, Raniwara, District Jalore
Rajasthan. Original Accused No. 4. Presently Lodged In Central
Jail, Jodhpur
----Appellant
Versus
The State Of Rajasthan
----Respondent
For Appellant(s) : Mr. P.K. Sharma
Mr. Rahul Sharma
Mr. B.S. Rathore
Mr. Dhirendra Singh
Mr. Rajeev Bishnoi
Mr Harshad Bhadu
For Respondent(s) : Mr. N.S. Bhati, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Judgment
Date of pronouncement : 07/04/2020
Judgment reserved on : 27/08/2019
BY THE COURT : PER HON'BLE MEHTA, J.
REPORTABLE (1) These five criminal appeals under Section 374 (2) CrPC are directed against the judgment dated 14.10.2016 passed by the learned Additional Sessions Judge, Bheenmal, District Jalore in Sessions Case No.22/2011 (C.I.S. No.162/2014), whereby the appellants herein were convicted and sentenced as below :-
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(3 of 54) [CRLA-1012/2016] Name of the Offence for which Sentence awarded appellant convicted Kalyanpuri Section 460 IPC Life imprisonment alongwith a fine of Ghewaram Rs.10,000/- and in default of payment Ashok Kumar of fine, further to undergo rigorous Shankarlal imprisonment of six months Kailashnath Section 396 IPC Life imprisonment alongwith a fine of Ishwarpuri Rs.10,000/- and in default of payment of fine, further to undergo rigorous imprisonment of six months 120-B IPC Life imprisonment alongwith a fine of Rs.5,000/- and in default of payment of fine, further to undergo rigorous imprisonment of three months
All the substantive sentences were ordered to run concurrently. All the appeals are directed against a common judgment, thus, the same have been heard and are being decided together.
(2) Brief facts relevant and essential for disposal of the criminal appeals are noted hereinbelow. Dinesh Kumar (P.W.1) submitted a written report (Ex.P/1) to the SHO, Police Station Sanchor, District Jalore on 17.09.2008 at 10.00 a.m. at the place of incident alleging inter alia that his uncle Chunnilal S/o Malaji used to reside alone at his (Downloaded on 07/04/2020 at 08:20:01 PM) (4 of 54) [CRLA-1012/2016] home which is situated on the main road, Subhash Chowk, Sanchore. Ishwarpuri was employed as a servant to serve him. Chunnilal's wife had died and he had adopted Sachin Jain, who used to reside in Mumbai with his family. Chunnilal was a pawn broker, who used to advance loans to people by pledging their ornaments. On 16.09.2008 at 11.00-11.30 p.m., the complainant, alongwith Tejraj Chhogaji, Devaram Khatri and few others, was sitting in the vicinity of Chunnilal's house talking to each other. At that time, they saw Ishwargiri and his cousin Kailash S/o Aasnath Swami and four other persons standing and talking to each other. A Maruti Car No.GJ-2- R7802 was parked nearby. The complainant and his companions went to their respective homes to sleep. In the next morning at about 09.00 a.m., the complainant went to the house of his uncle Chunnilal and observed that the door was locked from outside. He and Tejraj knocked the door, but they failed to get any response from inside. The servant Ishwarpuri was missing. They got alarmed and thus, scaled the wall of the neighbor's house and peeped into the house of Chunnilal and saw him lying on a cot in the open courtyard. They informed the police and forced opened the door of the house. The dead body of his uncle was lying sans Dhoti. Marks of strangulation were visible on his neck. Various articles were lying strewn around in the room. The door of the basement, where his uncle used to keep the precious articles and ornaments secured in a locker, was open and (Downloaded on 07/04/2020 at 08:20:01 PM) (5 of 54) [CRLA-1012/2016] it was seen that the locker had also been broken open and was lying empty. It was speculated that Ishwargiri, the servant of Chunnilal, alongwith his unknown companions had killed Shri Chunnilal in order to loot the valuables. The complainant mentioned that the list of stolen articles would be provided after arrival of Sachin, the adopted son of Shri Chunnilal. The complainant also claimed that he could identify the assailants.
(3) On the basis of the report aforestated, an FIR No.277/2008 (Ex.P/2) came to be registered at the Police Station Sanchore for the offences under Sections 460, 396 and 302/34 IPC and investigation was commenced. The accused appellants were arrested. It is alleged that silver articles used by Shri Chunnilal for worship were recovered during personal search of each accused. Further recoveries were effected acting on the informations provided by the accused to the Investigating Officer under Section 27 of the Evidence Act. After concluding the investigation, a charge-sheet came to be filed against the accused appellants Kalyanpuri, Ghewaram, Shankarlal, Ashok Kumar and Kailashnath for the offences under Sections 460, 396, 302/149 and against accused appellant Ishwarpuri for the offences under Section 460, 396 and 302 read with Section 120-B IPC in the court of Judicial Magistrate, Sanchore. As the offences were (Downloaded on 07/04/2020 at 08:20:01 PM) (6 of 54) [CRLA-1012/2016] Sessions triable, the case was committed to the court of the Additional Sessions Judge, Bhinmal for trial. (4) The trial court framed charges against all the accused appellants for the offences under Sections 460, 396 and 120-B IPC. All the accused pleaded not guilty and claimed trial. The prosecution examined as many as 31 witnesses and got exhibited 142 documents and 100 articles to prove its case. The accused persons were questioned under Section 313 CrPC and were confronted with the circumstances appearing against them in the prosecution evidence which, they denied and claimed to have been falsely implicated. The accused Kalyanpuri, Ashok Kumar, Ghewaram and Shankarlal, who were subjected to test identification proceedings during investigation, claimed that they were shown to the witnesses at the police station before the test identification parade was held. The accused persons also claimed that they did not get any article recovered and that all the recoveries were fake and fabricated. The accused Kalyanpuri stated that he was not present at Sanchore on the day of the incident. The accused Ghewaram stated that he was apprehended by the police on 16.09.2008 under Section 151 CrPC with the car and thereafter, he was arraigned as an accused in this case for oblique motive. The accused Shankarlal as well as Ashok Kumar also claimed to have been arrested by the police under Section 151 CrPC on 16.09.2008 itself. (Downloaded on 07/04/2020 at 08:20:01 PM)
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The accused Ishwarpuri claimed that he had been
arrested in this case purely on the basis of suspicion. However, no oral evidence was led in defence. (5) After hearing and appreciating the arguments advanced by the defence and the prosecution and upon evaluating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence, this appeal.
(6) Learned counsel representing the appellants Ghewaram, Shankarlal, Kalyan Puri and Ashok Kumar vehemently and fervently urged that the accused persons have been falsely implicated and that there is no plausible or tangible evidence available on record of the case so as to connect them with the alleged crime. They contended that the FIR is a fabricated document. The informant Dinesh Kumar, upon being examined in evidence as P.W.1, admitted in his sworn testimony that he had not noted the number of the car, which he saw parked nearby the accused, when they were talking to each other on the night intervening 16.09.2008 and 17.09.2008 as he had no reason to suspect them at that time. Learned counsel, thus, submitted that introduction of the car number in the FIR clearly establishes that the Investigating Officer has played foul and that the FIR is a fabricated document. The defence theory put forth by the accused persons in (Downloaded on 07/04/2020 at 08:20:01 PM) (8 of 54) [CRLA-1012/2016] their statements under Section 313 CrPC that they had been arrested on 16.09.2008 in proceedings under Section 151 CrPC and had been falsely arraigned in this case is fortified because even though, Dinesh Kumar (PW1) did not know the number of car used by the accused in the commission of the crime, the same is mentioned in the FIR. This clearly establishes that the SHO must have introduced the number of the car in the FIR in order to lend credence to the otherwise shoddy prosecution story. The introduction of the number of the car in the first report was not possible unless the SHO had seized the same and had apprehended the accused on the previous night itself. They further urged that there are grave discrepancies in the evidence of the prosecution witnesses regarding the recoveries of the silver articles. As per them, only those articles were identified by the witnesses, upon which, slips bearing the name of the deceased were pasted or his name was engraved. They further contended that if the evidence of the Tehsildar Pradeep Kumar (P.W.29) is considered, manifestly, the evidence of identification of the articles would stand totally falsified. They further urged that as the first informant and his companions gave categoric information regarding them having broken into the house before the police arrived there, claim of the Investigating Officer that the lock on the main door was broken open by him is totally falsified. They further contended that the procedure of collection of the finger prints from the place (Downloaded on 07/04/2020 at 08:20:01 PM) (9 of 54) [CRLA-1012/2016] of incident is also farcical inasmuch as the finger prints were collected only from a few articles, whereas the other articles were left untouched. There was no mechanism available with the forensic team to segregate or differentiate amongst the various articles lying at the spot for lifting the finger prints impression and thus, the Finger Print Bureau's report loses significance. (7) Mr. B.S. Rathore, learned counsel representing the appellant Ishwarpuri, vehemently] urged that the implication of the said accused in this case is totally false and unjustified. He was serving the deceased for more than years without any previous complaint whatsoever. The material prosecution witnesses admitted that the accused Ishwarpuri would leave the house of the deceased in the evening and go back to his village as a routine after completing the daily household chores and would return the next morning. He referred to the statements of Devilal (P.W.4) and Tejraj (P.W.17) and urged that these witnesses admitted that Ishwarpuri was present at the spot in the morning after the incident, which, as per Mr. Rathore, is depictive of his innocence. (8) Regarding the finger print expert's report, the contention of the defence counsel was that in the first round of analysis, the specimen thumb and finger print impressions of the accused were not found apposite for comparison (Downloaded on 07/04/2020 at 08:20:01 PM) (10 of 54) [CRLA-1012/2016] and thus, the Director, Finger Print Bureau forwarded a letter dated 06.10.2008 (Ex.P/70) to the Investigating Officer for sending fresh specimen finger prints of all 10 digits of the accused so that proper comparison could be undertaken. Learned counsel submitted that there is no evidence whatsoever on the face of record of the case to prove that the fresh specimen finger prints of the accused were procured for comparison in a lawful manner. It was thus contended that the report of the finger print expert (Ex.P/113) is inadmissible in evidence. (9) On these grounds, learned counsel for the appellants implored the court to accept the appeals; set aside the impugned judgment and acquit the accused appellants of all the charges.
(10) Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by learned defence counsel. He urged that clinching circumstantial evidence is available on record so as to link the accused conclusively with the offences alleged. The accused appellants Kailashnath happens to be the cousin of Ishwarpuri. He got information regarding the riches stored in the house of the deceased from Ishwarpuri and thus, a conspiracy was hatched to loot these articles. The witnesses Devilal (P.W.4), Tejraj (P.W.17) and Dinesh Kumar (P.W.1) have given clear and cogent evidence that (Downloaded on 07/04/2020 at 08:20:01 PM) (11 of 54) [CRLA-1012/2016] accused were seen conferring with each other near the house of the deceased on the fateful night. On the next morning, the dead body of Chunnilal was found in the house and the ornaments pledged by the pawnees with the deceased had been looted. The accused were apprehended within the very short duration of 1 to 4 days from the day of incident. Each accused, while being arrested was found carrying one or more of the looted articles, which were seized. In addition, the accused got recovered huge caches of the looted articles in furtherance of the voluntary informations provided by them to the Investigating Officer under Section 27 of the Evidence Act. No explanation has been offered by the accused persons for being found in the possession of such a huge quantity of silver/gold articles except for a bald denial and their silence is depictive of their guilt. Regarding the so called discrepancy in the procedure of collection of the finger prints etc., the contention of learned Public Prosecutor was that these are minor discrepancies, which have to be ignored and overlooked considering the fact that the Investigating Officer had no animosity whatsoever with the accused, which could have impelled him to create false evidence against them. On these grounds, learned Public Prosecutor vehemently and fervently sought dismissal of the appeals and affirmation of the impugned judgment.
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(12 of 54) [CRLA-1012/2016] (11) We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment. We have minutely re-appreciated the evidence available on record.
(12) The first in the series of witnesses, whose evidence was relied upon by the prosecution is none other than the first informant Dinesh Kumar (P.W.1). We now proceed to analyze his statement. Dinesh Kumar, stated in his examination-in-chief that he, alongwith Tejraj Choudhary, Devilal and 2-3 other persons was sitting at the corner of Dosiyawas Chowk of Sanchore and were talking to each other. Ishwarpuri and Kailash were standing outside the gate of Chunnilal's house talking to each other. He knew Kailash from before. He further alleged that while, these two persons were talking to each other, a car came there, from which, 4 persons alighted. The place where these persons were standing and talking was at a distance of 10-20 feet from the house of deceased Chunnilal. Thereafter the witness and his companions went home to sleep. In the next morning at about 09.00 a.m., they collected firewood to participate in a cremation. On coming across Chunnilal's house, they saw that the door was locked from outside. They became alarmed and knocked the door, but got no response from inside. They went to the house of Mafatlal, the immediate neighbour of Chunnilal, from where they saw that Chunnilal's body was (Downloaded on 07/04/2020 at 08:20:01 PM) (13 of 54) [CRLA-1012/2016] lying on a cot. The police was informed through mobile. The witness claimed that he broke open the restraints of the door and entered the house with Tejaram and saw Chunnilal lying dead on the cot. Various articles were lying strewn around in the house. The safe had also been broken. He submitted the written report (Ex.P1) and participated in the preparation of the site inspection plan (Ex.P/2), Fard Surat Hal Lash (Ex.P/3), Panchnama Lash (Ex.P/4) Fard Supurdgi Lash (Ex.P/5) and seizure memo of clothes (Ex.P/6) and attested these documents. The witness identified the appellants herein as being the persons, who, he had seen standing and talking to each other outside the house of Chunnilal on the fateful night. He also claimed that he identified 4 unknown assailants in the test identification proceedings conducted by the Magistrate after 14 to 15 days of the incident. In cross- examination, the witness stated that his house was located at a distance of about 200 feet to the south of the house of Chunnilal. The chowk, where he and his companions were sitting was at the eastern side. The witness stated of his own accord that Dosiyawas Chowk and Subhash Chowk were one and the same. The car was parked at a distance of about 10-12 feet from chowk. He and Tejram broke the chain used to lock the door of Chunnilal's house with a stone before the police had arrived. In cross-examination, he was given a suggestion that he was falsely implicating the accused and rather, he himself had looted the articles of the deceased and (Downloaded on 07/04/2020 at 08:20:01 PM) (14 of 54) [CRLA-1012/2016] wanted to throw the police off the trail to which he expressed denial. A suggestion was also given to the witness that he had conspired with the police officials to tamper with the evidence so as to effect fake recoveries which was also refuted. He also denied the suggestion that he was annoyed with Chunnilal because he had taken Sachin in adoption. The witness denied that Ishwarpuri came to the house of Chunnilal on the next day in routine or that he was arrested by the police on 17.09.2008 in his presence. To a pertinent question put by the defence counsel, the witness admitted that he did not note the number of any vehicle including the Maruti car of the accused on the day of the incident because he had no reason to suspect that the car might be used for some offence or the bystanders might be planning any incident. He feigned ignorance as to the combination number of the safe. He clearly admitted that he did not mention the number of Maruti car either at the portion 'E' to 'F' of the FIR (Ex.P/1) or in the portion marked 'A' to 'B' of his 161 CrPC statement (Ex.D/1). He could not explain as to how the car number came to be mentioned in these two documents. From the evidence of the first informant Dinesh Kumar (P.W.1), it is clear as day light that the introduction of the car number in the FIR is a sheer piece of fabrication made by the SHO, Rajuram (P.W.30), who registered the FIR. We shall discuss the remaining aspects of his evidence later. (Downloaded on 07/04/2020 at 08:20:01 PM)
(15 of 54) [CRLA-1012/2016] (13) Dhanpatram (P.W.2) was a formal witness pertaining to the preparation of the Panchnama Lash (Ex.P/4). (14) Bhopalchand (P.W.3) was associated as a motbir witness in the preparation of various documents viz. Ex.P/2 site inspection plan, Ex.P/3 Fard Surat Hal Lash, Ex.P/4 Panchnama Lash, Ex.P/5 Fard Supurdagi Lash and Ex.P/6 seizure memo of the mattress cover and the clothes of the deceased. He also proved the procedure of lifting of the finger prints vide memo Ex.P/12. His evidence is also formal in nature. In cross-examination, he admitted that the police did not open the lock at the door of the house because the bolt had been broken open before their arrival.
(15) Devilal (P.W.4) alleged in his evidence that Chunnilal used to reside all alone in his house. Ishwargiri was employed by Chunnilal for doing the household chores. Chunnilal was a pawn broker and used to pledge the ornaments of people and gave loans in lieu thereof. He often used to sit outside the house of Chunnilal and talked to him in the evening. On 16.09.2008, he, Dinesh Kumar and Tejraj were talking to each other while standing at the Subhash Chowk. A car was parked in the Subhash Chowk. Two persons were standing beside the car, whereas three (Downloaded on 07/04/2020 at 08:20:01 PM) (16 of 54) [CRLA-1012/2016] persons were standing near the house of Chunnilal. Two of these persons were Kailash and Ishwargiri. The car's number was GJ-2-4710. The witness wrongly identified Kailash as Champalal. He identified Kalyanpuri, Shankarlal and Kailash by their features, stating that he did not know their names. The witness stated in his examination-in- chief that the lock of Chunnilal's house was broken open by the police and by that point of time, Ishwargiri had arrived at the spot. He was made to identify the accused in the jail. In cross-examination, he admitted that only five accused were subjected to test identification and not six. He did not know the sixth accused. The police apprehended two persons from Subhash Chowk, one of them was the driver of the car and the other was someone else, whom he could not identify. These two persons were not the offenders and were being beaten in the police station and were pleading while insisting that they were not present at the time of the incident. He went to the police station two to three days after the incident and saw all the accused persons locked up there. He saw that the car was lying at the police station on the very day of the incident. These very persons were later identified by him in the test identification proceedings conducted at the jail. Thus, from the evidence of this witness, it becomes clear that when he saw the car, it was parked at Subhash Chowk and that the accused Ishwarpuri arrived at the scene of occurrence on the morning of 17.09.2008 in routine. The (Downloaded on 07/04/2020 at 08:20:01 PM) (17 of 54) [CRLA-1012/2016] witness categorically admitted that accused were shown to him at the police station before the test identification proceedings were conducted. Apparently, there exists a serious discrepancy in the version of this witness vis-a-vis the statement of Dinesh (PW-1) inasmuch as Devilal claimed that the lock of the door was broken open by the police while on the contrary Dinesh emphatically stated that he and Tejram had broken the chain used to lock the door of Chunnilal's house with a stone before the police had arrived. In cross- examination, the witness stated that after cremation of Chunnilal, he, Dinesh (PW-1) and Sachin (PW-14) went to the police station and the SHO told them that he had apprehended the accused, who had murdered Chunnilal and at that point of time, all the accused were confined inside the cell. At this stage, the Public Prosecutor submitted an application on 14.05.2010 for declaring the witness hostile, but did not choose to persue the same. (16) Premaram (P.W.5) did not support the prosecution story and was declared hostile and his evidence is inconsequential.
(17) Chhatararam (P.W.6) was posted as a Constable at the Police Station Sanchore on the relevant date. He received the written report from the ASI Shri Rajuram and registered the FIR (Ex.P1). He also stood as a Panch (Downloaded on 07/04/2020 at 08:20:01 PM) (18 of 54) [CRLA-1012/2016] witness in the proceedings pertaining to the arrest of the accused Kalyanpuri (Ex.P/22) and stated that when the personal search of the accused was conducted, a silver bell and a silver lamp (Deepak) were recovered. He also stood as a Panch witness in the arrest of Ghewaram vide arrest memo (Ex.P/23) and seizure of the two small silver bowls recovered during his personal search. Likewise, the accused Shankarlal was also arrested in the presence of this witness vide arrest memo (Ex.P/24). During his personal search, a white silver incense stick stand was recovered and was seized. The accused Ashok Kumar was arrested vide arrest memo Ex.P/25 and a small silver jar used for worship was recovered during personal search of this accused. Nails of accused Ashok Kumar were clipped off and seized in the presence of the witness on 20.09.2008 vide Ex.P/26. The other motbir in the proceedings of arrest and recoveries was Constable Madanlal. The witness stated that the name "Chunnilal Malaji Sanchore" was visible on all the articles seized during personal search of each accused. In cross- examination, the witness admitted that Kalyanpuri was arrested from Bheenmal, but he was shown arrested at the police station. When Kalyanpuri was apprehended at Bheenmal, he was searched by the SHO. He was apprehended from Bheenmal at about 7 o'clock in the evening. All the four accused were arrested from different places at Bheenmal. Then he added that the accused Ashok Kumar was arrested from Raniwara on 19.09.2008. (Downloaded on 07/04/2020 at 08:20:01 PM)
(19 of 54) [CRLA-1012/2016] On further cross-examination, the witness admitted that the accused Shankarlal was shown arrested at the Police Station Sanchore on 17.09.2008 at 10.30 p.m., whereas, he had already been apprehended from Bheenmal at about 12 to 1 o'clock in the afternoon. When Shankarlal was apprehended, Kalyanpuri and Ghewaram were also with them. However, none from the complainant party was accompanying them in the vehicle. The accused were brought from Bheenmal in a closed vehicle and were made Baparda after they were formally shown arrested at the police station. Few important facts can be extracted from the evidence of this witness; viz. (a) that even though, the accused were apprehended and confined at Bheenmal, the Investigating Officer made no effort to prepare their arrest memos at the very place from where the accused were apprehended; (b) that the accused were not kept Baparda immediately from the time of their confinement by the police; (c) that the Investigating Officer made no effort whatsoever to prepare the pearsonal search memos of these accused at Bheenmal and (d) that all the silver articles, which were recovered during the personal search of the accused were having name "Chunnilal Malji Sanchore" etched thereupon.
(18) The circumstances noticed above create a significant doubt on the bonafides of the Investigating Officer's (Downloaded on 07/04/2020 at 08:20:01 PM) (20 of 54) [CRLA-1012/2016] actions. There was no reason as to why the Investigating Officer did not associate two independent motbirs in the recovery proceedings. The accused were admittedly apprehended at Bheenmal, but neither were they shown arrested nor were their faces covered at the time of their apprehension. Personal search memos of the accused were not prepared at Bheenmal. Therefore, a strong doubt is cast upon the fairness of the procedure of investigation undertaken by the Investigating Officer, which is apparently tainted. The possibility of the alleged eye-witnesses being present at the police station when the accused were brought there, is highly probablized, more so when the entire statement of Devilal (P.W.4) is kept in mind and thus, the subsequent test identification parade becomes a worthless exercise.
(19) Kesaram (P.W.7) was associated in the recoveries of silver ornaments allegedly effected at the instance of the accused Kalyanpuri. Though the witness did not support the prosecution case in his initial examination-in-chief, but upon being declared hostile and when cross-examined with the investigational documents, the witness turned around and supported the prosecution case. He was made to prove the recoveries effected from the house of Kailashnath vide seizure memo Ex.P/28 and he admitted his signatures thereupon. He also proved the seizure memo Ex.P/29, whereby the clothes worn by Kailashnath (Downloaded on 07/04/2020 at 08:20:01 PM) (21 of 54) [CRLA-1012/2016] were seized on 24.09.2008 at 10:45 a.m. and the site inspection plan Ex.P/30 of the house of Kailashnath. When cross-examined, the witness stated that all the articles described in memo (Ex.P/28) were recovered from the house of Kalyanpuri.
(20) The evidence of Hinduram (P.W.8) who was the owner of a hotel, is inconsequential to the case because he did not specify any particular date or time on which the accused allegedly came to take food at his hotel.
(21) Narendra Kumar (P.W.9) was associated in the arrest of the accused Kailashnath vide arrest memo (Ex.P/28-A). He alleged that the police recovered a silver hand fan and a gold pendant having a slip by the name of Chhogaram Kantol during the personal search of Kailashnath. These articles were seized vide seizure memo (Ex.P/30-A). He also stood as a motbir in the arrest memo of Ishwarpuri (Ex.P/29-A) and stated that both these accused got verified the place of incident vide memorandum (Ex.P/31). He further alleged that on the next day, i.e. on 22.09.2008, police took him and Moolaram to the Dhani of Ashok Kumar, who got recovered a bag concealed in an iron tank. Silver utensils and a gold ring were concealed in the bag. All the articles bore the name "Chunnilal Malaji". The bag was seized by the police vide seizure memo (Ex.P/32). The accused also got recovered his own (Downloaded on 07/04/2020 at 08:20:01 PM) (22 of 54) [CRLA-1012/2016] clothes concealed underneath the ground, which were seized vide seizure memo (Ex.P/33). The accused Kailashnath and Ishwarpuri were arrested at the police station.
(22) Velaram (P.W.10) stood a motbir witness in the seizure memo (Ex.P/35) of a lock, which was affixed on the gate in the gallery of the house of the deceased. He categorically stated that the accused Kailashnath and Kalyanpuri were present when the seizure was effected. The face of Kalyanpuri was covered. The witness also participated in the seizure memo of the silver articles recovered at the instance of the accused Kailashnath and proved the seizure memo as Ex.P/36. He also proved the seizure memo Ex.P/38, whereby Kalyanpuri got recovered a key concealed underneath the ground in a gochar land before the village Khara.
(23) Tilaram (P.W.11) was associated as a Panch witness in the seizure of blood-stained clothes, which were recovered at the instance of accused Kalyanpuri from some Babul bushes near Maheshwari Colony Bhinmal at Karda Road and were seized vide seizure memo Ex.P/40. The witness admitted in his cross-examination that the accused did not give any information at the police station, but blurted the same out in his presence on the way to Karda while (Downloaded on 07/04/2020 at 08:20:01 PM) (23 of 54) [CRLA-1012/2016] proceeding from Sanchore. This admission of the witness creates a doubt tainting the entire procedure of recovery. (24) Bhanwar Singh (P.W.12), Constable, was also engaged as a Panch witness of seizure memo Ex.P/36 prepared for the seizure of cash amount and silver ornaments effected at the instance of the accused Kailashanth. He also attested the seizure memo Ex.P/38, whereby the key was recovered at the instance of the accused Kalyanpuri. In cross-examination, the witness admitted that the accused had been apprehended and he himself saw all the 5 accused at the police station in the evening on the very day of the incident. This admission of the witness again creates a significant doubt on the Investigating Officer's actions and completely taints the process of investigation undertaken by him. (25) Chhogaram (P.W.13) was examined for the purpose of proving that he had pledged an ornament of his wife with Chunnilal and had taken a loan of Rs.5,000/-. However, no such ornament was exhibited or shown to the witness during his evidence, making his entire testimony an exercise in futility.
(26) Sachin Shah (P.W.14) is the adopted son of the deceased Chunnilal. He stated that Ishwargiri used to serve his (Downloaded on 07/04/2020 at 08:20:01 PM) (24 of 54) [CRLA-1012/2016] father Chunnilal through the day and night. Shri Chunnilal was indulged in the business of pawn broking. He received an information from Dinesh that Chunnilal had died, whereupon, he and his family members immediately rushed to Sanchore and reached there in the midnight of 17/18.09.2008. The dead body of Shri Chunnilal was cremated in the next morning. He undertook search of the household after the funeral and realized that a grand theft had taken place from the house. He prepared a list of all the stolen articles (Ex.P/40) and gave the same to the police. The stolen articles were worth Rs.5 to 6 lacs at that time. In cross- examination, he admitted that Chunnilal used to maintain a Khata Bahi and cash register. However, he did not see or check these books while submitting the application (Ex.P/40). He further stated that the code number of the safe was only known to him, Ishwarpuri and Chunnilal. The sequence in which the four keys would fit in to open the safe was also within the knowledge of these 3 persons only. In cross-examination, the witness admitted that Ishwarpuri was at his village on the day of the incident. He prepared the list by a rough estimate. He had not visited Sanchore for about 2 to 3 months prior to the incident and thus, he was not aware of the articles, which might have been pledged with Chunnilal in this period.
(Downloaded on 07/04/2020 at 08:20:01 PM)
(25 of 54) [CRLA-1012/2016] (27) Manifestly, from this admission of the witness, it can be positively inferred that he could not have known precisely as to what all were the ornaments pledged with Shri Chunnilal and had been looted from the safe. In further cross-examination, he admitted that he checked, locked and unlocked the safe by using the number code and the keys and ensured that it had not been broken into. From this admission of the witness and more particularly the suggestion given by the defence counsel, it becomes clear that the safe, in which the deceased used to store his articles, was as a matter of fact, not broken open, but was opened by using the keys and the combination code. The Investigating Officer has come out with a case that he recovered the keys of the safe at the instance of Kalyan Puri on 20.09.2008, but the candid admission of Sachin (P.W.14) that he opened the safe by using the keys and the combination code clearly destroys the Investigating Officer's theory regarding the safe having been opened by the accused because if the safe had already been opened and the keys stolen, it could not have been operated by Sachin and if it was found locked, then the theory that the accused opened the same and took away the articles is falsified. (28) Shantilal (P.W.15) stood as an attesting witness in the proceedings of recovery of ornaments made at the instance of accused Kailashnath and attested the seizure (Downloaded on 07/04/2020 at 08:20:01 PM) (26 of 54) [CRLA-1012/2016] memo (Ex.P/28). He also attested the seizure memo Ex.P/29, whereby the blood-stained clothes of accused Ashok Kumar were seized. In cross-examination, the witness stated that the accused Ishwarpuri was present on 17.09.2008 and thereafter, he did not get to see him. He correctly identified Ishwarpuri in the court. (29) Sumermal (P.W.16) stood as a motbir in the proceedings of verification of the place of incident at the instance of the accused (Ex.P/43). He also participated in the proceedings of recovery of the following articles and proved the corresponding memorandums :
Name of the Seizure Article
accused memo
Kalyanpuri Ex.P/44 Silver utensils and
other ornaments
weighing 3 kg. 250 gm.
Ex.P/51 Four keys in a ring and
one separate key (total
five keys)
Ghevaram Ex.P/46 Silver utensils and
ornaments weighing
about 2 kg.
Ex.P/47 A Maruti car
Shankarlal Ex.P/49 Silver utensils and
ornaments weighing 1
kg. 900 gm.
The witness stated that he could not identify any of the accused persons.
(30) Tejraj (P.W.17), was the person, who was sitting with Dinesh and Devilal at Subhash Chowk on the fateful night. (Downloaded on 07/04/2020 at 08:20:01 PM)
(27 of 54) [CRLA-1012/2016] However, this witness failed to identify the accused other than Kailashnath and Ishwarpuri in the court. His evidence is also not very significant because he could not identify the un-named assailants.
(31) Pukhraj (P.W.18) is the brother of the deceased Chunnilal.
He stated that Ishwarpuri was employed as a servant to assist Chunnilal. The keys of the almirah were also known to Ishwarpuri. The witness could not identify any accused other than Ishwarpuri. He stated that he participated in the funeral etc. He was also associated in the preparation of the list of stolen articles with Sachin. He went to the tehsil office for identifying the recovered articles and claimed to have correctly identified the articles of Chunnilal before the Tehsildar. He proved the test identification memorandums (Ex.P/58 to Ex.P/68). The iron box containing the articles recovered from the accused was opened in the presence of this witness. The Presiding Officer took note of the fact that the chits appended on the box were torn. The lock did not have any seal. 14 of the 15 cloth bags kept in the box were in a sealed condition. One handkerchief like pouch was unsealed. It was having a watch, which the witness identified to be of deceased Chunnilal, along with a tobacco packet and a comb. The sealed cloth bags were opened. The silver articles were exhibited and the witness identified the same in the court to be of Chunnilal. (Downloaded on 07/04/2020 at 08:20:01 PM)
(28 of 54) [CRLA-1012/2016] (32) However, it may be noted that the witness did not claim that the deceased regularly showed him the articles, which were pledged with him. Though the witness stated that he would often visit to the house of the deceased, where he showed him the articles, but the chance of the witness identifying each and every article recovered at the instance of the accused was very faint and could only be possible by using unfair means.
(33) Sheru Khan (P.W.19), Constable, was posted in the M.O.B. Branch of the S.P. Office, Jalore. He went to the place of incident on 17.09.2008 and collected the chance prints from a steel tiffin and two steel plates. He stated that chance prints were attempted to be taken from the numerous other articles as well, but distinct prints were found only on these articles, which were collected, sealed and packed for being forwarded to the Finger Print Bureau, Jaipur. The witness denied the suggestion that the chance prints were got appended on the articles at the police station after the accused had been arrested. (34) Dr. Dhannaram Gosai (P.W.20) was posted as Medical Officer, Primary Health Center Jhab on 17.09.2008. He was a member of the medical board constituted to conduct postmortem upon the body of Chunnilal. The board conducted postmortem and noticed six injuries on the dead body. Bruises and abrasions were noticed on the (Downloaded on 07/04/2020 at 08:20:01 PM) (29 of 54) [CRLA-1012/2016] neck and upon opening the underlying area, the first vertibra of spine was found fractured and dislocated. The brain was also congested. The thyroid cartilage was also fractured. Time since death was opined as 12 to 18 hours from the postmortem examination. The cause of death was opined to be asphyxia by strangulation. Nothing significant was elicited in the cross-examination of the doctor, which can discredit his testimony. Thus, there is no hesitation for us to conclude that the death of Shri Chunnilal was homicidal.
(35) Harjiram (P.W.21) deposed that he gave an electric weighing scale to the Constable Chhatararam. His evidence is formal in nature.
(36) Chainaram (P.W.22) was posted as a Constable at the Police Station Sanchore. He stated that he took the specimen finger print impressions of the accused Kailashpuri, Kalyanpuri, Ishwarpuri, Ashok Kumar, Ghewaram and Shankarlal at the Police Station Sanchore on 29.09.2008 and deposited the same at the Finger Print Bureau, Jaipur. The specimen finger prints were returned as they were found to be blurred and insufficient for comparison. Thereafter, the Investigating Officer again took permission of the Judicial Magistrate and in furtherance thereof, fresh specimen finger prints of the accused were collected and Chainaram carried the same (Downloaded on 07/04/2020 at 08:20:01 PM) (30 of 54) [CRLA-1012/2016] to the Finger Print Bureau on 13.10.2008 and deposited them on 14.10.2008.
(37) Mangilal (P.W.23) was posted as a Constable at the Police Station Sanchore on 10.10.2008. He gave evidence regarding the collection of fresh finger prints of six accused under the order of the Judicial Magistrate, Sanchore on 10.10.2008. He admitted that the fresh finger impressions were not taken in the presence of any Magistrate or other authority and also not verified. It may be noted that no formal document pertaining to collection of the fresh finger print impressions of the accused was got proved through this witness.
(38) Ghanshyam (P.W.24) snapped photographs of the place of incident and proved the negatives as well as positives thereof. His evidence is formal in nature. (39) Mahendra Singh (P.W.25), Constable, was posted at the S.P. Office, Jalore. He stated that Constable Durgaram (P.W.28) posted at the Police Station Sanchore brought six sealed packets pertaining to the FIR No.277/2008 of Police Station Sanchore and submitted the same to him on 29.09.2008. The witness apprised Durgaram that the articles could not be deposited because Government holidays were in offing and thus, he was sent back. On (Downloaded on 07/04/2020 at 08:20:01 PM) (31 of 54) [CRLA-1012/2016] 13.10.2008, Constable Rajendra Singh (P.W.27) brought back the sealed packets of the case. The witness prepared the forwarding letter and handed the articles and documents back to Rajendra Singh for onward transmission. He stated that the articles were sealed when he received the same and were forwarded in the self-same condition.
(40) Tan Singh Charan (P.W.26) was posted as a Judicial Magistrate, Sanchore on 27.09.2008. On that day, he received an application for conducting test identification parade of the accused Kalyanpuri, Ghewaram, Shankarlal and Ashok Kumar at the hands of the witnesses Dinesh Kumar, Tejraj, Devaram and Premaram. He conducted the test identification proceedings on 01.10.2008. The witness stated that at the time of the test identification, the accused claimed to be innocent and stated that they had been shown to the witnesses at the police station. The witness further stated that on 08.10.2008, the SHO gave an application for collecting fresh finger prints of the accused in the jail, which he accepted, and the requisition (Ex.P/82) was forwarded to the Sub-jail Sanchore. (41) Rajendra Singh (P.W.27), Constable, stated that he was posted at the Police Station Sanchore on 13.10.2008. On that day, he received 6 sealed packets pertaining to the present case from Head Moharrir Hem Singh and carried (Downloaded on 07/04/2020 at 08:20:01 PM) (32 of 54) [CRLA-1012/2016] the same to the S.P. Office, Jalore, where the forwarding letter was prepared and the samples were deposited by the witness at the FSL, Jodhpur. The evidence of this witness is formal in nature.
(42) Durgaram (P.W.28), Constable, posted at the Police Station Sanchore, gave evidence regarding the first transmission of samples from the Police Station Sanchore, which proved abortive because of onsetting Government holidays.
(43) Pradeep Kumar (P.W.29) was posted as the Executive Magistrate, Sanchore on 11.12.2008. He stated that on that day, the SHO, Police Station Sanchore submitted an application (Ex.P/85) to him for conducting test identification of the stolen articles. The witness stated that the articles were to be identified by Pukhraj and Chhogaram. The witness conducted the identification proceedings in his office on 11.12.2008. The Head Constable Hem Singh brought some articles to mix in the stolen articles and thereafter the test identification proceedings of the articles sealed in respective packets (allegedly seized from the accused) were conducted. (44) Rajuram (P.W.30) was posted as the SHO, Police Station Sanchore. He conducted investigation of the case and is (Downloaded on 07/04/2020 at 08:20:01 PM) (33 of 54) [CRLA-1012/2016] the most important prosecution witness. On receiving a telephonic information of the incident on 17.09.2008 at 09.00 a.m., he proceeded to the spot with the investigation box after making the entry in the Roznamcha (Ex.P/87). Dinesh Kumar submitted the written report (Ex.P/1) to the witness at the spot. He acknowledged the same and forwarded it to the police station with Constable Chhatararam for registration of the formal FIR. He entered the house of Chunnilal and saw his denuded dead body lying on a cot. Marks of strangulation were clearly visible on the body, which was covered by a towel. The vest and Dhoti of the deceased and the bed- sheet were stained in blood. The Investigating Officer conducted the requisite steps of investigation. He claimed that while going away after committing the loot and the murder, the accused had locked the door of house, which was broken open by him. The safe was open. The household articles were lying scattered here and there. The Investigating Officer claims to have arrested the accused in the following order :
• Accused Kalyanpuri was arrested on 17.09.2008 vide arrest memo Ex.P/22. On his personal search, a silver bell and a silver lamp with the name Shah Chunnilal Malaji etched thereupon, a Nokia 6600 phone and a wrist watch of Indica brand were recovered and seized at the spot. (Downloaded on 07/04/2020 at 08:20:01 PM)
(34 of 54) [CRLA-1012/2016] • Accused Ghewaram was arrested on 17.09.2008 at
10.15 p.m. vide arrest memo Ex.P/23. On his personal search, two small silver bowls, with the name Shah Chunnilal Malji Sanchore etched on them, one Nokia mobile, cash amount of Rs.6000/-, a red coloured wallet having an ATM card, photo and other documents were recovered and seized.
• Accused Shankarlal was arrested on 17.09.2008 at 10.30 p.m. vide arrest memo Ex.P/24. On his personal search, one white silver incense sticks stand with the name Shah Chunnilal Malaji Sanchor etched on it, one red Nokia mobile, one voter ID card, one telephone diary and other documents were recovered and seized. • All the three accused were kept Baparda. On 18.09.2008, he received a list of stolen articles (Ex.P/40) from Sachin, the adopted son of deceased Chunnilal. He recorded the informations of all the three accused and got the place of incident verified vide memorandum Ex.P/43. He further stated that on 18.09.2008, accused Kalyanpuri gave him an information that after committing the murder and theft, the share of the loot which came to him had been stored by him in a bag, which was concealed in his house at Bheenmal, which he could get recovered. He gave out that after the incident, the keys of the almirah were taken away by him, which were lying concealed (Downloaded on 07/04/2020 at 08:20:01 PM) (35 of 54) [CRLA-1012/2016] amongst the bushes at the Sanchore Bheenmal Road. This information purportedly given under Section 27 of the Evidence Act was recorded in memorandum Ex.P/92. On 18.09.2008 at 04.30 p.m., accused Ghewaram gave an information under Section 27 of the Evidence Act to the Investigating Officer regarding concealment of his share of loot in a bag, which had been placed between the mattresses in his house located at Bheenmal. Likewise, information was also given regarding the car used in the incident. This accused also gave information to the Investigating Officer regarding concealment of the keys of the safe. The information was taken down in memorandum Ex.P/93. On 18.09.2008, the accused Shankar Lal gave an information to the Investigating Officer regarding concealment of his share of the loot, which he had secured in a small cloth bag, which was concealed in an iron tank inside his house in Bheenmal. This information was taken down in memo Ex.P/94. In furtherance of these informations, the Investigating Officer took the accused to the respective places and effected recoveries in the following manner :
Name of accused Seizure memo Article
Kalyanpuri Ex.P/44 Bag containing
silver articles
Ghewaram Ex.P/46 Bag containing
silver articles
Ex.P/47 Maruti 800 Car
No.GJ-2-R-7802
Shankarlal Ex.P/49 Bag containing
sliver articles
(Downloaded on 07/04/2020 at 08:20:01 PM)
(36 of 54) [CRLA-1012/2016]
• The accused Ashok Kumar was arrested on
19.09.2008 vide arrest memo Ex.P/25. During his personal search, silver articles, i.e. a small silver jar, and a Nokia mobile were recovered and seized vide seizure memo Ex.P/25.
• On 20.09.2008, the accused Kalyanpuri guided the Investigating Officer to the Bheenmal Karda Road, dug up a place near the asphalt and presented a white plastic bag, in which a ring having four keys (alleged to be of the safe) with a badge having Yonex written thereupon and a single key with a round ring were concealed. These articles were seized vide seizure memo Ex.P/51. • The finger nails of accused Ashok Kumar, suspected to be stained with blood of the victim, were clipped and seized vide seizure memo Ex.P/26. Ashok Kumar gave an information to the Investigating Officer on 20.09.2008 regarding concealment of his share of the spoils in a white bag in an iron tank in a hut built in his field. This information was taken down in memorandum Ex.P/98. • Accused Kailashnath was arrested on 21.09.2008 vide arrest memo Ex.P/28-A. During his personal search, a black green coloured comb, a silver pankhi with the name Chunnilal written thereupon, a flower-like gold (Downloaded on 07/04/2020 at 08:20:01 PM) (37 of 54) [CRLA-1012/2016] pendent with a chit having Kalbi Chhogaram Dharma Ji Sakin Kantol Account No.2062 dated 11.09.2005 written thereupon were found and seized vide seizure memo Ex.P/28.
• Accused Ishwarpuri was arrested on 21.09.2008 vide arrest memo Ex.P/29-A. The place of incident was got verified on the basis of the information supplied by accused Ishwarpuri and Kailashnath as well. The Investigating Officer, then proceeded to recover the silver articles concealed in the house of Ashok Kumar in furtherance of the information Ex.P/98. These articles were seized vide seizure memo Ex.P/32. The documents pertaining to the sale and purchase of the car were recovered and seized vide memos Ex.P/105 and Ex.P/106 in furtherance of the information provided by Ghewaram. The accused Kailashnath also gave an information to the Investigating Officer regarding concealment of his share of the stolen articles, which was taken down in memorandum Ex.P/107. The accused Ashok Kumar gave an information to the Investigating Officer under Section 27 of the Evidence Act regarding concealment of his blood-stained clothes, which was taken down in memorandum Ex.P/108 and his clothes were seized vide seizure memo Ex.P/37. The blood-stained clothes of accused Kalyanpuri were seized vide seizure memo Ex.P/40. The clothes of accused Kailashnath, suspected (Downloaded on 07/04/2020 at 08:20:01 PM) (38 of 54) [CRLA-1012/2016] to be stained with blood were seized vide seizure memo Ex.P/30. The silver articles concealed by Kailashnath were seized at his instance vide seizure memo Ex.P/28. Accused Kailashnath gave another information to the Investigating Officer on 25.09.2008, which was taken down in memorandum Ex.P/111. In furtherance of this information, recovery of currency notes to the tune of Rs.6500/- and some silver articles was effected vide seizure memo Ex.P/36.
The Investigating Officer also deposed regarding the preparation of the fresh finger prints of the accused, recording of the statements of the various witnesses, forwarding of the incriminating articles to the FSL, the test identification proceedings of the accused etc. The recovered articles were exhibited during evidence of the Investigating Officer. Prolonged cross-examination was carried out from the Investigating Officer. He admitted that the names of the accused other than Ishwarpuri and Kailashnath were not mentioned in the FIR, but he mentioned names of all the accused in the Roznamcha entry (Ex.P/133-A), which he recorded immediately after returning from the place of incident. He explained that these names were mentioned on the information of a reliable source informer. He stated that he arrested accused Kalyanpuri, Ghewaram and Shankarlal on the same day, (Downloaded on 07/04/2020 at 08:20:01 PM) (39 of 54) [CRLA-1012/2016] i.e. on 17.09.2008, whereas, by that time, no witness had taken the names of these accused. However, the Investigating Officer insisted that the source informer had named the accused persons. He admitted that the safe was not broken into, but had been opened. No books of accounts or other record pertaining to the articles pledged with Chunnilal were recovered during the course of investigation and accordingly, Rajuram, the Investigating Officer, expressed sheer ignorance on the aspect as to how many people had pledged their articles with Chunnilal and the amount Chunnilal had given by way of loan. He admitted that he made no attempt to try out the keys recovered at the instance of the accused Kalyanpuri on the safe. A pertinent suggestion was given to him that the safe was duly opened after arrival of Sachin, the articles were laid out at the police station and the recoveries were planted upon the accused, who were already confined in proceedings under Section 151 CrPC. The Investigating Officer denied this suggestion. (45) After having narrated the circumstances as appearing in the evidence of the prosecution witnesses, we now propose to deal with the rival submissions and discuss and evaluate the evidence available on record. (46) The first and foremost contention of the learned defence counsel was regarding the introduction of the car number (Downloaded on 07/04/2020 at 08:20:01 PM) (40 of 54) [CRLA-1012/2016] in the FIR leading to the inference that the document is fabricated. In this regard, it may be mentioned here that as per the evidence of the concerned witnesses viz. Dinesh Kumar, Tejraj and Devilal; it is clear that none of them managed to see or note the number of the car, in which, some of the suspects allegedly came to the spot before the incident was perpetrated. Rather, the first informant Dinesh Kumar (P.W.1) emphatically stated in cross-examination that he did not give out the number of the car while lodging the report. The SHO Shri Raju Ram (P.W.30) claimed that Dinesh Kumar got the report drafted on his own and the same was submitted to him at the place of incident at about 10.00 a.m. In this background, introduction of the number of car in the FIR creates a strong doubt that the FIR itself must have been drafted on the instructions of the Investigating Officer himself because the knowledge of the car's number could be attributed only to the Investigating Officer, who claims to have acted on some secret source information for arresting the accused Kalyanpuri, Ghewaram and Shankarlal on the very day of the incident, even though they were not named in the FIR. The over-zealousness of the Investigating Officer in this case is also portrayed from the fact that the names of the unknown accused are mentioned in the Roznamcha entry (Ex.P/133-A), which was recorded on arrival of the SHO at the police station at 05.00 p.m. on 17.09.2008. In this Roznamcha entry, the Investigating Officer, clearly mentioned that after handing (Downloaded on 07/04/2020 at 08:20:01 PM) (41 of 54) [CRLA-1012/2016] over the dead body to the family members, the source informers were sounded at Sanchore, Gundou etc. and from them, he got information that the incident was perpetrated by Ishwarpuri, Kailashnath, Kalyanpuri, Ghewaram, Shankarlal and Ashok Kumar. In this background, it is clear that the Investigating Officer had his sight set on these accused even though they had not been named by any witness.
(47) Though Dinesh Kumar (P.W.1) corroborated the proceedings pertaining to the identification parades of the accused, but when the other identifying witness Devilal was cross-examined by the defence, he admitted that the accused were shown to him at the police station after 2 to 3 days of the incident. Though the learned Public Prosecutor made an attempt to get this witness declared hostile, but later on, for unknown reasons, the application was withdrawn. Tejraj (P.W.17) failed to identify any of the accused other than Kailashnath and Ishwarpuri. Therefore, a serious doubt is cast on the test identification proceedings of the accused Kalyanpuri, Ghewa Ram, Shankarlal and Ashok Kumar. We have to be conscious of the fact that all that is claimed in the examination-in-chief of Dinesh Kumar (P.W.1) is that the four unknown persons came in a car and were talking to Kailashnath at Subhash Chowk. On a perusal of the site inspection plan (Ex.P/2), it becomes clear that Subhash Chowk is located at a (Downloaded on 07/04/2020 at 08:20:01 PM) (42 of 54) [CRLA-1012/2016] significant distance from the house of the deceased and numerous turns are existing on the road and thus, even if for a moment, it is believed that the unnamed accused came to Sanchore on 16.09.2008, no conclusive inference can be drawn merely by this circumstance that they were perpetrators of the incident. The circumstance of last seen relied upon by the prosecution is based on the bald aspersion of the witnesses Devilal (P.W.4), Dinesh Kumar (P.W.1) and Tejraj (P.W.17) that they saw the accused on the night of the incident standing and talking to each other at the Subhash Chowk. Considered in light of the comparative distances and angles as noted in the site inspection plan vis-a-vis the statements of the material prosecution witnesses, possibility of the assailants having been seen and identified by the witnesses on the fateful night is totally ruled out. Thus, the circumstance of last seen cannot be held proved against the accused other than Kailash Nath and Ishwarpuri. Once this circumstance is eschewed from consideration, the other circumstances, which survive in support of the prosecution case would be of the recoveries, the chance prints and the FSL reports of finger prints and blood stained articles. (48) Learned defence counsel did not dispute the fact that the death of Chunnilal was homicidal in nature. Otherwise also, the fact that Chunnilal was strangulated to death is well-established from the postmortem report (Ex.P/69), (Downloaded on 07/04/2020 at 08:20:01 PM) (43 of 54) [CRLA-1012/2016] which was proved by Dr. Dhannaram (P.W.20). Thus, we have no hesitation in holding that Chunnilal was murdered in his house on the night intervening 16.09.2008 and 17.09.2008. Furthermore, the circumstances prevailing at the scene of occurrence also conclusively establish the fact that the offence was committed with the sole objective of looting valuables and an insider must have been involved in the incident because as per the uncontroverted evidence of Dinesh Kumar and Sachin, the combination to the safe was only known to the deceased, his son Sachin and the accused Ishwarpuri. Since Sachin was at Mumbai and as it cannot be expected that Chunnilal would share the combination of the safe with anyone, manifestly, the finger of suspicion would point towards Ishwarpuri as the person, who opened/provided information about the safe's combination to the perpetrators of the offence.
(49) As per the Investigating Officer's statement and the memos prepared by him, all accused other than Ishwarpuri and Kailashnath were arrested between 17.09.2008 and 19.09.2008. However, witness Bhanwar Singh (P.W.12) emphatically stated that he saw the accused at the Police Station on 17.09.2008. There exist serious discrepancies in the prosecution evidence regarding the time and place from where the accused were arrested. The prosecution claims that when these (Downloaded on 07/04/2020 at 08:20:01 PM) (44 of 54) [CRLA-1012/2016] accused were arrested and their personal search was conducted, each of them was having some or the other article of the deceased concealed in their clothes. These articles were commonly usable for worship and bore the name Chunnilal Malaji Sanchore etched upon them. In our opinion, it does not stand to reason that when the accused had taken the pain of concealing bulk of the looted articles in their respective homes, they would continue to carry these small articles with them so as to facilitate the recovery thereof in a common pattern. Thus, we are of the firm opinion that the recoveries, which were effected by the Investigating Officer during the personal search of the accused do not inspire confidence and are totally fabricated. The procedure of arrest of the accused also suffers from infirmity.
(50) If these recoveries are excluded from consideration, manifestly, the other circumstances, which remain on record would be of matching finger prints, the recovery of bulk of silver articles and the blood-stained clothes of the accused. We have elaborated upon the statement of Pukhraj (P.W.18), who was made to undertake the exercise of the test identification of the articles of the deceased which were allegedly looted by the accused on the fateful night. For the purpose of identifying the ornaments, allegedly looted from the house and the safe of the deceased, the Investigating Officer got conducted (Downloaded on 07/04/2020 at 08:20:01 PM) (45 of 54) [CRLA-1012/2016] test identification proceedings through witness Pukhraj (P.W.18). The trial court, took note of the fact that some slips etc., which were appended on the packets of articles were broken. The witness Pukhraj stated that he used to visit Chunnilal, who would, often show to him the articles lying in his safe, therefore, the possibility of the witness having correctly identifying some of the articles of the deceased is probablized, but it is beyond comprehension that he would be able to identify each and every article belonging to or pledged with the deceased. Thus, the procedure of test identification of the ornaments/articles recovered at the instance of the accused becaomes doubtful.
(51) As per the evidence of Rajuram (P.W.30), it is clear that a bulk of incriminating looted articles were recovered in furtherance of the informations provided by the accused in the following order :-
Name of Information Recovery Article Recovered the under Section memo accused 27 of the Evidence Act Kalyan puri Ex.P/92 dated Ex.P/44 dated Silver articles and
18.09.2008 at 19.09.2008 at ornaments weighing 4:00 pm 4:00 pm 3.250 Kgs Ex.P/92 dated Ex.P/51 dated Keys of the safe 18.09.2008 at 20.09.2008 at 4:00 pm 7:30 pm Ex.P/112 dated Ex.P/38 dated Key measuring 6 26.09.2008 at 27.09.2008 at cm 11:50 pm 1:50 pm Ex.P/109 dated Ex.P/40 dated Blood stained 23.09.2008 at 24.09.2008 at clothes of the 3:00 pm 5:00 pm accused worn by (Downloaded on 07/04/2020 at 08:20:01 PM) (46 of 54) [CRLA-1012/2016] him at the time of the incident Ghewaram Ex.P/93 dated Ex.P/46 dated Silver articles and 18.09.2008 at 19.09.2008 at ornaments weighing 4:30 pm 5:30 pm 2.100 Kgs Ex.P/93 dated Ex.P/47 on Maruti 800 car no.
18.09.2008 at 19.09.2008 GJ 2 R 7802
4:30 pm
Ex.P/97 dated Ex.P/27 dated Silver and gold
20.09.2008 at 22.09.2008 articles deposited
12:30 pm with Jagdish and
sale deed of the car
no. GJ 2 R 7802
Shankarlal Ex.P/94 dated Ex.P/49 dated Silver articles and 18.09.2008 at 19.09.2008 at ornaments weighing 5:00 pm 7:15 pm 1.950 Kgs Kailashnath Ex.P/107 dated Ex.P/28 dated Silver articles and 22.09.2008 at 24.09.2008 at ornaments weighing 12:30 pm 9:00 am 3.040 Kgs and a gold ornament weighing 54 gms Ex.P/110 dated Ex.P/29 dated Blood stained 23.09.2008 at 24.09.2008 at clothes of the 7:00 pm 10:45 am accused worn by him at the time of incident Ex.P/111 dated Ex.P/36 dated Cash Rs 6500 and 25.09.2008 at 27.09.2008 at silver ornaments 9:00 am 12:00 noon weighing 534 gms Ashok Ex.P/108 dated Ex.P/33 dated Blood stained Kumar 22.09.2008 at 22.09.2008 at clothes of the 3:30 pm 6:30 pm accused worn by him at the time of the incident Ex.P/98 dated Ex.P/32 dated Silver ornaments 20.09.2008 at 27.09.2008 at weighing 3.420 Kgs 1:00 pm 12 noon and gold ring weighing half tola Ex.P/26 dated Nails of the accused 20.09.2008 ashok kumar for preservation (52) The prosecution has come out with a positive case that the finger prints of the suspects which were initially forwarded to the FSL for comparison were returned back (Downloaded on 07/04/2020 at 08:20:01 PM) (47 of 54) [CRLA-1012/2016] vide a communication dated 22.9.2008 in which, the Director FSL indicated that the fresh specimen finger and thumb prints of the inmates of the house as well as of the suspects be taken and be forwarded to the FSL so that the same could be compared with the chance fingerprints. The SHO, Shri Rajuram (P.W.30) submitted an application (Ex.P/80) to the Judicial Officer, Sanchore and acting on his order, fresh specimen finger prints of the accused were taken by Mangilal Head Constable (P.W.23) vide finger print slips (Ex.P112 to Ex.P117). It may be mentioned here that other than the finger print slips, no memorandum etc. was prepared regarding collection of these fresh specimen finger print impressions of the accused. Furthermore, the finger print slips were proved by the S.H.O. Rajuram but no effort was made to prove them in the evidence of the Constable Mangi Lal who is the signatory and scribe of these documents. Therefore, neither the procedure of taking the fresh specimen finger prints of the accused inspires confidence nor the same was proved by the prosecution as per law. These circumstances create a doubt on the bonafides of the IO's actions and the plea putforth by the defence counsel that as a matter, of fact the accused were forced to apply their thumb impressions on the utensils gains credibility. In this background, it would not be safe to place reliance upon the FSL report pertaining to the matching of the thumb impressions/print impressions (Ex.P/113). (Downloaded on 07/04/2020 at 08:20:01 PM)
(48 of 54) [CRLA-1012/2016] (53) In view of the discussion made hereinabove, we feel that the following logical conclusions can be drawn after a thorough analysis of the prosecution evidence:
(A) That the accused Shanker Lal, Kalyanpuri, Ghewa Ram, Kailash Nath and Ashok Kumar had already been arrested by the Investigating Officer on 16.09.2008 in proceedings under Section 151 CrPC and were seen at the Police Station by witness Bhanwar Singh (P.W.12) in the evening of 17.09.2008 and therefore, the Investigating Officer's endeavor of portraying the arrest of these accused persons at different points of time is a sheer manipulation.
(B) That the claim of the IO that he effected recoveries of the articles used by Shri Chunnilal for worship during the personal search of the accused is totally unbelievable for the simple reason that all these recoveries were made in a common pattern and have an uncanny resemblance with each other which again creates a doubt in genuineness thereof. It does not stand to reason that when the accused had taken great pains to conceal bulk of the looted articles at different places, then why they would carry only the articles of worship with them. (Downloaded on 07/04/2020 at 08:20:01 PM)
(49 of 54) [CRLA-1012/2016] (C) That since we have categorically held that the
accused were already in custody at the Police Station from 16th September onwards, the recoveries which have been shown during their personal search on the dates 17.09.2008, 19.09.2008 and 21.09.2008 dates, are ipso-
facto falsified.
(D) That as per the evidence of the material prosecution witness Dinesh Kumar (P.W.1), the unkown accused were standing with the suspected car at the Dosiyawas Chowk/Subhash Chowk which was definitely not within the visible range of the material prosecution witnesses and thus, the theory put up by the prosecution that the witnesses were able to identify them is falsified. (E) That none of the prosecution witnesses claimed to have noted the number of the car on the fateful night and thus, introduction thereof in the F.I.R. (Ex.P/2) creates a strong doubt that the entire F.I.R. was manipulated by the S.H.O. P.W.30 Rajuram. The fact that Raju Ram mentioned the names of the unknown assailants in the Roznamcha entry (Ex.P/133-A) brings his conduct and fairness under grave suspicion.
(F) That since we have held that the accused Shanker Lal, Kalyanpuri, Ghewa Ram and Ashok Kumar were (Downloaded on 07/04/2020 at 08:20:01 PM) (50 of 54) [CRLA-1012/2016] fraudulently shown arrested by the Investigating Officer between 17.09.2008 and 19.09.2008, the recoveries effected at their instance, purportedly in furtherance of the informations provided to the Investigating Officer under Section 27 of the Evidence Act are falsified as a natural consequence of this finding.
(G) That the list of stolen articles (Ex.P/40) provided by Sachin (P.W.14) to the IO is a concocted document because no corresponding account registers/ledger folios were produced on record so as to satisfy the court that these articles were as a matter of fact pledged with or were owned by the deceased Chunnilal. It appears that most of the articles were found lying in the house and the list was prepared after physical verification of the articles. (H) That the prosecution theory regarding keys of the safe having been recovered at the instance of accused Kalyanpuri vide Ex.P/51 also comes under a cloud of doubt because a pertinent question was put by the defence to the IO that these keys do not fit into the safe. The IO made no efforts whatsoever to ascertain as whether the keys were of the very same safe or not and therefore, the defence theory is fortified. In addition thereto, the candid admission as appearing in the statement of Sachin (P.W.14) that he opened the safe with the keys totally destroys the prosecution theory that (Downloaded on 07/04/2020 at 08:20:01 PM) (51 of 54) [CRLA-1012/2016] combination of the safe was provided by Ishwarpuri and the safe was opened by the accused by using the keys, which were then taken away. As a matter of fact, it seems likely that the accused were not able to open the safe and that is why the signs of Chunnilal's house having been ransacked were noticed by the Investigating Officer when the site inspection was conducted. If at all, the accused were knowing the correct procedure of opening of the safe and had access to the keys, then there was no reason for them to ransack the house of the deceased. All these circumstances taken together, i.e. improbability of Sachin (P.W.14) knowing the details of the valuables, non- production of the account books despite the same being available and that the fact that Sachin admitted to have opened the safe by using the keys makes the entire prosecution case regarding the accused having broken into the house, opened the safe and having looted the valuables falls flat on the face of record. Further, it is apparent from the statement of P.W.18 Pukhraj that when the box containing the ornaments was shown in the court, the seals thereof were broken. Therefore, identification of these articles by Pukhraj loses significance. (I) That there is a grave discrepancy in the prosecution case regarding the manner in which and the person, who opened the door of the house of Chunnilal after the incident. While Dinesh Kumar (P.W.1) claimed that he (Downloaded on 07/04/2020 at 08:20:01 PM) (52 of 54) [CRLA-1012/2016] broke open the door, which was locked from outside, the Investigating Officer Raju Ram (P.W.30) claims that it was he, who broke open the restraints of the door on reaching the spot. These contradictions also create doubt on the genuineness of the prosecution case.
(J) That as against the accused Ishwarpuri, the prosecution has come out with a theory of conspiracy based on a sheer presumption that since he was serving the deceased and had intimate knowledge regarding his personal belongings, only he could have provided the details of the safe etc. to the principal offender. In this regard, it may be noted that Ishwarpuri was shown arrested on 21.09.2008, whereas the witness Devilal (P.W.4) has clearly admitted that Ishwarpuri was present at the spot on the very next day of the incident i.e. on 17th September. The presence of Ishwarpuri at the place of incident on the morning of the murder gives an indication regarding his innocent state of mind. That apart, other than these mere conjectural inferences, there is nothing on the record which can be considered as connecting Ishwarpuri with the alleged offences and hence, acting merely on such inferences to convict him for the charge of conspiring with the principal accused is uncalled for. Since the Investigating Officer has given fabricated evidence regarding the arrest of the accused, the recoveries of the blood stained clothes effected by him also becomes (Downloaded on 07/04/2020 at 08:20:01 PM) (53 of 54) [CRLA-1012/2016] doubtful and as a consequence, the FSL Report (Ex.P/128) also becomes unreliable.
(K) That the proceedings pertaining to identification of the accused also become doubtful in light of the statement of Constable Chhatra Ram (P.W.6), which we have discussed supra.
(54) In wake of the discussion made hereinabove, we are of the opinion that the prosecution evidence is not suggestive of the only possible and logical conclusion i.e. the guilt of the accused. On the other hand, we are of the opinion that the endeavour of the IO in fabricating evidence; preparing false documents, viz. the FIR, arrest memos and the recovery memos, creates significant loopholes in the prosecution case destroying its worth and reliability.
(55) As a result of the above discussion, we are of the firm view that it would not be safe to uphold the conviction of the accused appellants on the basis of such manipulative investigation and fabricated evidence. Manifestly, the trial court, failed to appreciate the evidence available on record in an apropos manner while recording guilt of the accused vide impugned judgment dated 14.10.2016, which does not stand to scrutiny.
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(54 of 54) [CRLA-1012/2016] (56) As a consequence, the appeals deserve to be and are hereby allowed. The impugned judgment dated 14.10.2016 passed by the learned Additional Sessions Judge, Bheenmal, District Jalore in Sessions Case No.22/2011 (C.I.S. No.162/2014) is hereby quashed and set aside. The accused appellants are acquitted of the charges. They shall be released from prison forthwith, if not wanted in any other case.
(57) However, keeping in view the provisions of Section 437-A CrPC, each of the accused appellants is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. (ABHAY CHATURVEDI),J (SANDEEP MEHTA),J Pramod/-
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