Rajasthan High Court - Jodhpur
Dayal Ram @ Sadula vs State on 3 August, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 228 / 2016
Dayal Ram @ Sadula S/o Koja Ram, By caste Jat, Resident of
Banwarla, Police Station Degana, District Nagaur (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. J.S. Choudhary, Sr. Advocate with
Mr. Pradeep Choudhary & Mr. Amardeep
Lamba
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
[Per Hon'ble Mr. G.K. Vyas, J.] Date of Judgment ::: 03rd August, 2017 In this criminal appeal filed u/s 374 (2) Cr.P.C., judgment of conviction and sentence dated 05th of February, 2016 passed by learned Addl. Sessions Judge, Merta (Trial Court) in Session Case No.100/2015 (8/2010) is under challenge, whereby the learned trial court convicted the appellant- Dayal Ram @ Sadula, for offence u/s 302, 201 and 397 of IPC and sentenced him as under:
(2 of 19) [CRLA-228/2016] 302 of IPC Life imprisonment along with fine of Rs.50,000/-. In default of payment of fine to further undergo one year rigorous imprisonment.
201 of IPC 3 Years‟ rigorous imprisonment along with fine of Rs.2,000/-. In default of payment of fine to further undergo fifteen days‟ simple imprisonment. 397 of IPC 7 Years‟ rigorous imprisonment along with fine of Rs.5,000/-. In default of payment of fine to further undergo one month‟s rigorous imprisonment.
AS per facts of the case, on 15.12.2009 complainant Shankar Ram (PW.2) submitted a written report (Ex.P/10) at Police Station- Degana stating therein that on 14.12.2009 his younger brother‟s daughter, namely, Chhota Devi, went Degana from village Udias. As a matter of fact, the brother of complainant died years back and deceased, Chhota Devi was residing with her family. It is further reported that after receiving cheque from Social Welfare Department at Degana, she but did not return to home till evening; and in the morning a telephonic message was received that dead body of Chhota Devi is lying in between the way on Kankada Jalsu Nanka to Sukhwasni. The complainant immediately went on the spot and saw that there was a rope in the neck of Chhota Devi who was lying dead on the road.
(3 of 19) [CRLA-228/2016] On the basis above report, the S.H.O., Police Station- Degana, registered FIR No.299/2009 (Ex.P/11) under Section 302 of IPC on 15.12.2009 against unknown person and commenced investigation. The police went on the spot and prepared site plan vide Ex.P/1 and details of place of occurrence were also recorded. Details of dead body were recorded on the spot vide Ex.P/2 at 11.40 AM. "Panchnama" of the dead body was prepared vide Ex.P/3 at 01.20 PM in the presence of five persons. Other articles viz. DD, currency notes along with purse, were recovered vide Ex.P/5 from the place of occurrence. From the site one shawl, empty beer bottle and one pair of "Juti", rope and some threads and „Namkin‟ (snack) bag were recovered vide Ex.P/6. Blood stained soil and simple soil were also taken in possession vide Ex.P/7 for examination. Clothes of dead body were also taken in possession and thereafter the dead body was subjected to postmortem and postmortem report Ex.P/8 was obtained. One rope was also recovered separately vide Ex.P/9. The dead body of deceased was handed over to complainant- Shankar Ram vide Ex.P/4.
During investigation, accused appellant- Dayal Ram @ Sadula was arrested on the basis of circumstantial evidence of last seen vide Ex.P/23 on 15.12.2009 at 08.00 PM. Thereafter upon his information given by the accused-appellant u/s 27 of Evidence Act on 16.12.2009 at 07.45 vide Ex.P/63, motorcycle bearing registration No.RJ-21-M-6050 was recovered vide Ex.P/16. Another information (Ex.P/64) was given by accused appellant, pursuant to which gold and silver ornaments and mobile were (4 of 19) [CRLA-228/2016] recovered. Bill of mobile instrument in the name of one Babuji was also taken in possession vide Ex.P/65. Gold and silver ornaments were also recovered vide Ex.P/18 on 16.12.2009 in the presence of Nandram and Meghraj. The site plan of place of recovery was also prepared vide Ex.P/19. A mobile was also recovered vide Ex.P/20. The map of place where mobile was recovered, was prepared vide Ex.P/20. Chance prints were also taken vide Ex.P/22 from the beer bottle recovered at the place of occurrence. After investigation all the recovered articles were sent for chemical examination to the FSL and in turn FSL reports (Ex.P/66 & P/67) were received.
The investigating officer on completion of investigation filed charge sheet against accused appellant under Section 302, 379 & 201 of IPC in the court of Civil Judge (Jr. Division)-cum-Judicial Magistrate, Degana, from where the case was committed to the court of Sessions Judge, Merta for trial. During pendency of trial, the case was transferred to the court of learned Addl. Sessions Judge, Merta, where trial of the case was conducted.
The learned trial court after recording oral evidence of 21 witnesses proceeded to record the statements of accused appellant under Section 313 Cr.P.C. In the said statements, appellant specifically stated that has been falsely implicated in this case. In defence, certain documents were exhibited.
Thereafter learned trial court finally heard the arguments of both the parties and after considering the circumstantial evidence finally held accused appellant guilty for offence u/s 302, 201 & 379 of IPC vide judgment impugned dated 05.02.2016. However, (5 of 19) [CRLA-228/2016] the learned trial court acquitted the appellant from the offence u/s 379 of IPC. The aforesaid judgment is under challenge.
Learned counsel for the accused appellant vehemently submitted that entire prosecution case is based upon circumstantial evidence, but it has not been proved beyond reasonable doubt to connect the accused appellant with the crime because there are material contradictions, manipulation and irregularity in the statements of the prosecution witnesses. There is no eyewitness in this case, the trial court has relied upon the testimony of two witnesses viz. PW.8- Prahlad Ram and PW.11- Nakhat Singh to prove the fact of last seen but other witnesses have turned hostile and did not support the prosecution story. It is argued that statement of PW.8- Prahlad Ram cannot be relied upon because in the statement recorded under Section 161 Cr.P.C., he said that on 14.12.2009 at Degana bus stand he saw the Chhota Devi and she was talking with somebody and after some time appellant came there on his motorcycle and she went along with him towards Edwa. But, in the statements recorded in the trial though he has repeated the earlier averments but in the cross-examination it is stated by him that after five days of the aforesaid incident police came to his house and recorded his statement. Meaning thereby, if he was the witness of last seen, then why he has waited for two days to disclose the fact of last seen with accused. The crux of the argument of learned counsel for the appellant is that testimony of the witness PW.8- Prahlad Ram has wrongly been relied upon by the trial court so as to accept the fact of last seen for conviction because such type of (6 of 19) [CRLA-228/2016] witness cannot be treated to be witness of last seen.
Learned counsel for the appellant further argued that other witnesses viz. PW.11- Nakhat Singh, declared hostile, therefore, there is no question to believe the testimony of hostile witness Nakhat Singh (PW.11). He further submit that there is no evidence of motive or malafide intention of the appellant and no trustworthy evidence is on record to prove the recovery of pieces of rope. There are lot of lacunas in the prosecution evidence but learned trial court completely failed to consider this important aspect of the case and erroneously held the accused appellant guilty without there being any reliable circumstantial evidence. Therefore, in view of judgment rendered by the Hon‟ble Apex Court in various pronouncements including Sharad Birdhichand Sarda Vs. State of Maharasthra, reported in AIR 1984 SC 1622., the accused appellant is entitled to be given benefit of doubt.
Learned counsel for the appellant argued that in absence of any direct evidence, the accused can be held guilty on the basis of circumstantial evidence of last seen and recovery of articles, but at the same time, the Court cannot lose sight of the fact that evidence must be transparent and complete so as to reach at the conclusion that offence has been committed by the accused and none else. However, in this case prosecution has completely failed to prove the fact of last seen, recovery of rope and ornaments beyond reasonable doubt and, therefore, the judgment impugned deserves to be quashed and set aside.
Per contra, learned Public Prosecutor vehemently argued that finding of guilty arrived at against the appellant by the (7 of 19) [CRLA-228/2016] learned trial court while relying upon evidence of last seen does not require any interference because the witness PW.8- Prahlad Ram is the independent witness and he has categorically stated before the court that on 14.12.2009 at Degana bus stand, deceased Chhota Devi was standing, were infront of him, accused appellant came there on motorcycle and she (deceased) went along with him towards Edwa triangular circle. It is also proved by the said witness that Chhota Devi was wearing gold ornaments in her neck and ears and she was employee in school for preparing food for students, therefore, contention of the learned counsel for the appellant that other witness PW.11- Nakhat Singh, turned hostile, cannot be treated to be a deficiency in the evidence of prosecution.
Learned Public Prosecutor further argued that as per statement of Dr. S.N. Maheshwari (PW.9) and Dr. Usha Choudhary (PW.10), the cause of death was strangulation because ligature marks were found upon the neck of deceased and one contusion injury was also found upon the body of the deceased, recovery of ornaments, is proved by the prosecution beyond reasonable doubt because the ornaments were recovered as per information given by the accused appellant, therefore, it cannot be said that any error has been committed by the trial court so as to convict the accused appellant for the offences mentioned above. It is further submitted that very important evidence on record to connect the accused with the crime, which is the piece of rope (cloth string) found upon the neck of dead body, was part of rope, which was recovered from the motorcycle of the accused appellant. It (8 of 19) [CRLA-228/2016] emerges from the evidence that at the time of strangulation, the rope was broken up, therefore, part of rope was found upon the motorcycle and another half portion was found upon the neck of the deceased and other part was found on the spot. As per FSL report also, all the pieces of rope were identical i.e. of the same rope, and this important evidence was relied upon by the trial court so as to convict the appellant. He, therefore, argued that the prosecution has proved its case beyond reasonable doubt, on the basis of evidence of last seen, recovery and FSL report, therefore, this appeal may kindly be dismissed.
After hearing the learned counsel for the parties, first of all it is required to be observed that there is no evidence of motive on record and the entire prosecution case is based upon circumstantial evidence of last seen, recovery of ornaments, rope and FSL report in which the parts of rope were found to be similar.
To prove the charge of murder against the accused, Dayal Ram 21 witnesses were examined in the trial. Out of 21 witnesses, PW.8- Prahlad Ram, and PW.11 Nakhat Singh are the witness of last seen, but PW.11- Nakhat Singh turned hostile and did not support the prosecution case, whereas other witness Prahlad Ram (PW.8) stated that on 14.12.2009 when I was standing at Degana bus stand and waiting for bus, one red colour motorcycle came, driven by the accused appellant Dayal Ram and deceased Chhota Devi who was standing there, sit on the said motorcycle and went along with Dayal Ram. In the cross-examination it is stated no such information was given by him to the police but police came to me at residence for enquiry. The above mentioned information (9 of 19) [CRLA-228/2016] was given by me but my statements were not recorded by the police, and for the first time, I am disclosing above fact in the court. The relevant part of cross-examination of witness PW.8- Prahlad Ram reads as under: -
"eSu a s NkVs h nos h dks n;kyjke ds lkFk tkrs n[s kus dh ckr 2 fnu ckn gh iqfyl dks crk nh FkhA iqfyl okys 2 fnu ckn gh Lo;a gh ejs s ?kj ij vk;s FkAs euaS s Lo;a us tkdj iqfyl dks dkbs Z o dN q Hkh ckr ugha crkbZ FkhA iqfyl okys ejs s ikl fdl rkjh[k dks vk;s eq>s irk ugha gSA iqfyl us ejs s c;ku dHkh ugha fy;sA ejs s bl lca /a k eas NkVs h nos h ds lca /a k eas c;ku vkt igyh ckj gh gks jgs gSA euas s NkVs h nos h dks n;kyjke ds lkFk tkrs n[s kk ;g ckr vkt igyh ckj dkVs Z eas gh crkbZ gSA NkVs h nos h ds ifjokj ls ejs k HkkbZik gh gSAa NkVs h nos h ds edku ls ejs k edku dkQh njw iMr+ k gSA eaS "kke dks Ng lk<s+ Ng cts Mxs kuk ls vius ?kj vk x;k Fkk eSua s ml fnu NkVs h nos h ds ifjokj okykas dks Hkh dkbs Z ckr ugha crkbZ Fkh NkVs h nos h dk eSa nos j yxrk Fkk blfy;s ejs s ls ?kq?a kV ugh j[k jgh FkhA ejs h ml fnu NkVs h nos h ls dkbs Z ckr ugha gqbZ FkhA NkVs h nos h ml fnu Qkus ls fdl ls ckr dj jgh Fkh ;g eq>s irk ugha gSA"
In the cross-examination, it is also stated that what type of dress, Chhota Devi and Dayal Ram were wearing, I do not now. Upon assessment of statement of witness, Prahlad Ram, his testimony cannot be accepted to prove the fact of last seen because being family member he was required to give information immediately to the police or to the family of the deceased Chhota Devi, but after two days, when police came to him then he informed the police about the fast of last seen, therefore, to maintain conviction, it is not safe to rely upon the testimony of this witness.
The witness PW.11- Nakhat Singh, turned hostile and did not support the prosecution case.
(10 of 19) [CRLA-228/2016] We have perused the statement of PW.1- Joraram, PW.2- Shankar Ram (author of FIR), PW.6- Vimla, PW.8- Prahlad Ram, PW.11- Nakhat Singh. In the statements of all these witnesses, there is no evidence to prove any motive so as to connect the accused appellant with the crime. The whole prosecution case is based upon evidence of last seen, recovery of ornaments and FSL report. Admittedly out of two witnesses of last seen, PW.11- Nakhat Singh turned hostile and there is no other evidence to corroborate the statement of Prahlad Ram (pW.8) about last seen inspite of fact that he was standing on the bus stand where he saw that accused appellant gave lift to deceased, Chhota Devi upon his motorcycle.
The question arose that if the deceased was standing at the Bus Stand, Degana, then probably number of persons were also there, but none of the witness other than Prahlad Ram and Nakhat Singh, were produced before the court to prove the fact of last seen. To consider the fact of that whether deceased went with the accused appellant, Dayal Ram, we have perused the statement of PW.5- Rambilas (son of the deceased). The witness, Rambilas (PW.5) stated that on 14.12.2009 my mother went Degana to collect cheque and to purchase some household articles. I went with my mother at 12-01.00 PM to drop her at bus stand, when I and my mother left the house, my elder father, Shankar Ram, was sitting outside house on the „Chabutari‟, when my mother left the house she was wearing "Tussi" (an ornament wore in the neck), gold „Fuldia‟ and one golden „Bor‟ earrings and other silver ornaments. It is further stated that in the evening at 06.30 PM a (11 of 19) [CRLA-228/2016] telephone call was received by Kana Ram, son of my uncle, in which my mother informed that she is with Dayal Ram and after some she will come back but, Kana Ram, has not been produced before the trial court nor his telephone numbers were disclosed by this witness. More so, no investigation was conducted from said Kana Ram.
Upon consideration of above evidence, we are of the opinion that prosecution was required to prove the fact of receiving phone call by Kana Ram but Kana Ram (cousin brother of Rambilas) not appeared before the court so as to support statement of Rambilas, therefore, statement of Rambilas has wrongly been relied upon by the trial court so as to connect the accused appellant with the crime.
PW.-6 Vimla, who is wife of Tulcha Ram (brother-in-law of deceased Chhota Devi) stated that a phone was received by my son Kana Ram at about 05-06.00 PM, in which deceased informed that she is coming with Dayal Ram, but Kana Ram has not been produced before the court so as to prove the fact that phone call was received by him. In our opinion, if Kana Ram received phone call then why said witness not appeared before the court.
In view of above, we hold that witnesses PW.5- Rambilas and PW.6- Vimla Devi are not reliable witness because their testimony has not been proved by the prosecution beyond reasonable doubt.
There is no doubt that deceased died due to strangulation and ligature marks were found upon the body of deceased. As per photographs available on record and recovery of rope, prosecution (12 of 19) [CRLA-228/2016] has tried to connect the accused appellant with the crime.
Admittedly, one rope was recovered vide Ex.P/6 at 12.40 PM on 15.12.2009 during investigation. In Ex.P/6, it is specifically recovered that one rope was taken in possession along with other articles from the place of ocurrence. The following assertion was made with regard to recovery of rope, which reads as infra:
"gqfy;k lkeku %& ,d "kkWy cjxa tkequh] tks ,d rjQ gYdk tkequh o nl w jh rjQ xgjk tkeuq h ftleas cqfV;k ¼Qqy½ cus gSA lkWy ij LVhdj fpidk gqvk gS ftl ij GANGA W.J. SHAWAL PREMISUM QUALITY HARISH TESTILES vfa dr gSA ,d trq k ¼eqMh½ tkMs h+ cjxa dkyk iqjkuk bLres kyh gSA fupys ryos ij Action 7 ua vfa dr gSA ,d [kkyh fc;j dh ckrs y ftl ij ycs y yxk gS] ycs y ij BULLET SUPER STRONG BEER for Sell In RJAASTHAN only vfa dr gSA ,d jLlh dk VqdMk+ cjxa yky] xqykch tks djhc <kbZ fQV dk gS] ,d jLlh dk nl w jk VqdMk+ cjxa lQns ] xqykch] tkequh] djhc <kbZ fQV ,d dkyk /kkxk Mcy ,d rjQ xkBa chp eas yxh gqbZ gS] djhc 1½ QhV dk gSA ,d uedhu dh FkSyh Hkjh gbq Z c/a k ftl ij cYy&s cYys fy[kk goq k gS o ,d [kkyh uedhu dh FkSyh tks ,d dkus k ls QkMh+ gqbZ gSA ftl ij Hkh cYy2s fy[kk Nik gSA mijkDs r lkeku dks ,d diMs+ dh FkSyh eas Mkydj lhYn ekSgj dj ekdZ B vfa dr fd;kA"
Similarly, another piece of rope was also taken in possession produced by witness Shyamlal (PW.13) after postmortem before the Investigating Officer in the hospital. The relevant extract of Ex.P/9 reads as under: -
"gqfy;k jLlh%& ,d jLlh diMs+ dh fyjh;kas ls cuh gqbZ nks yMh+ vyx&*2 fgLlk esa cVa h gqbZ exj exj chp nkus kas yMh+ eas xkBa yxh gkus s ls ,d gSA ftleas ,d yMh+ eas ,d xkBa mijdh rjQ vkSj gSA ftldk jxa gYnh] egs :u] lQns ] xqykch] dRFkbZ gS] nl w jh yMh+ dk jxa lQns ] vkjs Us t o yky jxa dh gSA ftudh yEckbZ djhc 4 fQV gSA tks iqjkuh o bLres kyh gS ftldks ,d lQns FkSyh eas Mkydj lhYn ekSgj dj ekdZ E- 1vfa dr fd;kA ueuw k lhy gkfl;k ij vfa dr dhA"
(13 of 19) [CRLA-228/2016] Third part of rope was recovered from motorcycle vide Ex.P/16 on 16.12.2009. The relevant part of said recovery memo reads as under: -
"gqfy;k o ekVs j lkbZfdy %& ,d ekVs j lkbZfdy fgjks gk.s Mk lh Mh MkWu cjxa yky u-a RJ-21-M-6050 dkys jxa dh lhV doj tks mijh Hkkx ij dky& s lQns Nkis gSA vkx&s ihNs uEcj IyVs ij My uEcj vfa dr gAS rFkk fiNs dh xM xkMZ ij yky v{kjkas ls pkS/kjh fy[kk gSA rFkk vkxs dk ck;ka b.Mh dVs j iqjk VqVk gqok gAS fcYdqy ugha gAS bt a u u-a 0427E32522 o pSfll u-a 04F2728497 gAS ekVs j lkbd Z y d ks p S d fd;k rks M/C ds fiNs ,d jLlh cjxa yky] xqykch] lQns eVeys h tSlh djhc 2½ QhV dh c/a kh gS tks okLrs otg lcrw dCtk iqfyl fy tkdj ,d lQns diMs+ dh FkSyh eas Mkydj lhYn ekSgj dj ekdZ F vfa dr fd;kA o mDr M/c pkyq gkykr es gS ftlds Vk;j ds fu"kku jrs ij pykdj n[s ks rks vkxs dk Vk;j dk fu"kku eas pkj ykbuZ mdjrh gS rFkk fiNs ds Vk;j ds fu"kku eas nkus kas lkbZMks eas pkSdMh+ VkbiZ o chp eas lery tSlh mHkjrk gSA vr% mDr M/c okLrs otg lcrw rgfcy iqfyl fy xbZA"
Meaning thereby, three pieces of rope were taken in possession by the investigating officer. First piece of rope was recovered at 12.40 PM on 15.12.2009 and seized vide Ex.P/6 along with other articles rope was kept in sealed cover Mark-B and second piece of rope was given by Shyamlal (Class-IV employee of the hostile) and same was seized and sealed vide Ex.P/9 and Mark E-1 was put upon the sealed bag. The third piece of rope was recovered from along with motorcycle vide Ex.P/16, and the same was taken in possession and sealed on spot and Mark "F" on spot.
In the FSL report (Ex.P/66) all the three pieces of rope were found to be of one rope. Now question arose whether any part of (14 of 19) [CRLA-228/2016] rope was recovered when the motorcycle of the accused appellant was seized. To consider the said fact we have perused the recovery memo of Motorcycle prepared in presence of two witnesses viz. Nandram and Meghraj. Out of these two witnesses, only one witness PW.14- Meghraj was produced and examined before the trial court to prove the fact of recovery of motorcycle and piece of rope. In whole of the statement, it is nowhere stated by this witness that any rope tied in the backside of motorcycle was recovered and taken in possession at the time of recovery of motorcycle. More so, it is stated by this witness that motorcycle was lying behind the house in open place and I don‟t know the number of motorcycle and my signatures upon the recovery memo (Ex.P/16) were obtained along with other recovery memos by the police in the police vehicle simultaneously. The investigating officer PW.21- Satish Kumar Meena, stated before the court that motorcycle was recovered vide Ex.P/16 and at the time of recovery, one piece of rope tied in backside of the motorcycle was found, and said that motorcycle was recovered from "Bara" near the house of accused appellant. Admittedly, out of two witnesses, Nandram and Meghraj, only one witness Meghraj (PW.14) appeared before the court and neither registration number of motorcycle, nor proved the fact that rope was found tied upon the motorcycle, which was recovered in front of him. The following statement was given by PW.14- Meghraj, which reads as under: -
"vkt ls rhu pkj lky igys iqfyl coa jyk xkoa eas vkbZ Fkh tks n;kjke [kkt s k ds ?kj ij vkbZ FkhA iqfyl us ogka ls ,d ekVs jlkbfdy] lkus k pkna h]] ekcs kby tCr fd;k FkkA QnZ cjkenxh ekVs j lkbZfdy inz "kZ ih&16 gS ftl ij , ls ch ejs s gLrk{kj gSA QnZ cjkenxh LFkku ekVs j (15 of 19) [CRLA-228/2016] lkbZfdy izn"kZ ih&17 ij , ls ch ejs s gLrk{kj gSA iqfyl us n;kyjke ds ?kj ls lkus k pkna h ds tos jkr cjken fd;s ftldh QnZ inz "kZ ih&18 ij , ls ch ejs s gLrk{kj gSA QnZ cjkenxh LFkku tos jkr izn"kZ ih&19 ij , ls ch ejs s gLrk{kj gSA QnZ cjkexh ,d ekcs kby ftldh QnZ izn"kZ ih&20 ij , ls ch ejs s gLrk{kj gSA ?kVuk LFkku dk ekd S k rLnhd djok;k ftldh QnZ inz "kZ ih&21 ij , ls ch ejs s gLrk{kj gSA ukVs & vkt Mkcy ykWd eky[kkuk ls tos jkr i"s k gq,& tCr lqnk lkus s pkna h ds xgus vkfVZdy&1 fpV ij , ls ch ejs s gLrk{kj] vkfVZdy 3 lkus s dk ckjs ] vkfVZdy&4 lkus s dh Vqlh] vkfVd Z y&5 ,d tkMs h+ lkus s dh >eq dh] vkfVZdy&6 ,d tkMs h+ pknha dh ikbtcs ] vkfVZdy&7 lkus s dk QyfM;+ k ogh gS tks iqfyl us ejs s lkeus tCr fd;s FkAs vkfVZdy&2 phV ij , ls ch ejs s gLrk{kj gS fQj dgk ;g ejs s gLrk{kj ugha gSA"
In the cross-examination, PW.14- Meghraj stated that, "----- ekVs j lkbZfdy ?kj ds ihNs [kqys LFkku ij iMh+ FkhA ekVs j lkbZfdy ds uEcj eq>s irk ughAa ekVs j lkbZfdy ykWd Fkh ;k ugha eq>s irk ughA".
In view of above discussion, we are of the opinion that although all the three pieces/parts of rope recovered, were sent to the FSL for examination, but prosecution has failed to prove the fact that out of three pieces of rope, one piece of rope was recovered along with recovery of motorcycle of the accused because in the statement of PW.14- Meghraj, it is nowhere it is stated by him that any rope tied upon the backside of motorcycle wsa recovered and sealed as Mark-F in his presence. Therefore, it is seriously doubtful that piece of rope was tied upon the motorcycle of the accused appellant, and recovered vide Ex.P/16.
With regard to recovery of ornaments vide Ex.P/18 on the basis information given by accused appellant, we have considered the argument of learned counsel for the appellant that said (16 of 19) [CRLA-228/2016] recovery of silver and gold ornaments cannot be treated as an evidence so as to hold the accused appellant guilty because as per settled principle of law, the ornaments recovered were required to be put for identification, but here in this case no such identification proceedings took place to identify the ornmanets. In our opinion, there is strength in the argument of learned counsel for the appellant that ornaments were required to be put for identification so as to connect the accused appellant with the crime, which was not done in this case.
In the case of Mani Vs. State of Tamil Nadu, reported in 2008 Cr.L.R. (SC) 306, the Hon'ble Supreme Court held that discovery of articles and weapon is a weak type of evidence and cannot be relied upon wholly for conviction in such a serious matter of murder. Para No.21 of the said judgment is as follows: -
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored (17 of 19) [CRLA-228/2016] this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go."
In the case of Vijay Shankar Vs. State of Haryana reported in AIR 2015 SC 3686, the Hon'ble Apex Court held that in absence of eyewitness, circumstantial evidence of last seen and recovery can be considered but the circumstances from which an inference of guilt is sought to be drawn must cogently and firmly established. The relevant para 7 of the said judgment reads as under:
"7. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from (18 of 19) [CRLA-228/2016] the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu Alias Mubarik Hussain vs. State of Rajasthan, (2007) 2 SCC Crl. 590: (AIR 2007 SC 697)".
Upon perusal of entire record of the case and finding of guilt arrived at by the trial court against the appellant, there is no dispute that ornaments which are said to be recovered at the instance of appellant, were not put for identification, nor those ornaments were recovered in front of any of the relatives of deceased. More so, the ornaments were recovered in front of two Motbir witnesses, out of two witnesses, only PW-14, Meghraj was produced before the trial court and it is accepted by investigating officer in his statement that recovered ornaments were not put for identification either in the proceedings or before the relatives of deceased. Therefore, the finding of the learned trial court that without any identification, the recovery of ornaments is accepted to be proved, is totally erroneous. It is settled principle of law that in case of circumstantial evidence on the basis of recovery of ornaments of the deceased, the said recovered ornaments are required to be put for identification, but in this case no identification proceedings were undertaken, therefore, the accused appellant is entitled for benefit of doubt. The mobile which is said to be recovered, was belonging to one Babuji, therefore, recovery of mobile has wrongly been relied upon by the trial court so as to (19 of 19) [CRLA-228/2016] connect the accused appellant with the crime.
In view of above discussion, we are of the firm opinion that finding of guilt recorded by the trial court against the accused appellant is not sustainable in law because the prosecution has failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence of last seen, recovery of ornaments & rope so as to connect the accused appellant with the crime. Therefore, the instant appeal deserves acceptance.
Consequently, while giving benefit of doubt to the accused appellant, this criminal appeal filed by the accused Dayal Ram @ Sadula is allowed, and the judgment impugned dated 05th of February, 2016 passed by learned Addl. Sessions Judge, Merta (Trial Court) in Session Case No.100/2015 (8/2010), is hereby quashed and set aside. The accused appellant, be released forthwith, if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- 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 Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-