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2000 DIGILAW 1394 (RAJ)

Chunnilal v. State of Rajasthan

2000-11-27

N.N.MATHUR, S.K.GARG

body2000
JUDGMENT 1. - This appeal is directed against the judgment dated 30.11.1996 passed by the Additional Sessions Judge No. 2, Chittorgarh, convicting the appellant Chunnilal of offence under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. one thousand and in default of payment of fine to further undergo four months' rigorous imprisonment. He has also been convicted of the offence under section 376/511 IPC and sentenced to five years' R.I. and to pay a tine of Rs. 250/- and in default of payment of fine to further undergo one month's R.I. He has further been convicted of the offence under Section 392/397 IPC and sentenced to seven years' R.I. and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo two months' R.I. All the substantive sentences have been ordered to run concurrently. 2. Briefly stated the prosecution case is that on 24.12.1993, one Madhav Lal lodged a First Information Report at Police Station, Begun, stating inter alia that his uncle Udailal was informed by Ramchandra Gujar that the dead body of his sister Smt. Leela was lying near Devilal Dhakad's field on Palanpur road. His uncle Udailal alongwith him and one Bheru Gujar rushed to the spot. They identified the dead body, that of his sister Smt. Leela. It was further stated that his sister Smt. Leela was sent to her in-laws house at Singoli about two days back. About 2-3 days back, her mother fell ill and, therefore, a message was sent to her through Mst. Jaiti. Her mother-in-law promised to take her to her ailing mother. However, she left the house all alone. He suspected that some miscreant killed her sister by strangulation and took away the valuables from her body. On this information, police registered a case for the offence under section 302/394 IPC and proceeded with investigation The police prepared the inquest. The post mortem of the dead body was performed on the spot. After seeing the post mortem report, offences under sections 376, 363, 364 and 366 were also added. The appellant was arrested on 27.12.93. In pursuance of the information given by him, certain ornaments and a shawl were recovered. The photographs of the recoveries were taken by the police. The post mortem of the dead body was performed on the spot. After seeing the post mortem report, offences under sections 376, 363, 364 and 366 were also added. The appellant was arrested on 27.12.93. In pursuance of the information given by him, certain ornaments and a shawl were recovered. The photographs of the recoveries were taken by the police. After usual investigation, police laid charge-sheet against the appellant for the offence under Sections 302, 363, 366, 366A, 376 and 397 IPC. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 34 witnesses. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. The trial court relying on the circumstantial evidence of `last seen' and recovery of ornaments and shawl, convicted and sentenced the appellant as noticed above. 4. We have scanned, scrutinised and evaluated the prosecution evidence and considered the rival contentions. 5. P.W. 13 Dr. Rajendra Prasad has stated that the post mortem of the dead body of Smt. Leela was conducted by a medical board of which he was also one of the members. He prepared the post-mortem report Ex.P. 22. The post-mortem report shows that there were large number of injuries on the person of Smt. Leela. All the injuries were ante mortem. In the opinion of the doctor, the cause of death was asphyxia due to throttling. He further expressed that there were signs of ante mortem penetration in the vagina. Vaginal smear and swabs were preserved for chemical examination. Since the defence has not challenged the cause of death, we do not consider it necessary to give the details of the injuries as given in the post mortem. 6. There is no direct evidence in this case. The prosecution has relied upon the following piece of circumstances : (i) Deceased Smt. Leela was last seen in the company of appellant Chuunilal; (ii) Recovery of ornaments namely silver `Kadiya' and `Kandora' in pursuance of the information given by the appellant; and (iii) Recovery of Shawl of the deceased in pursuance of the information given by the appellant. 7. The prosecution in order to establish the first circumstance, has examined three witnesses viz; P.W. 11 Mohd. Hasam, PW 25 Mohd. Mubarak and P.W. 30 Mst. Manju. 7. The prosecution in order to establish the first circumstance, has examined three witnesses viz; P.W. 11 Mohd. Hasam, PW 25 Mohd. Mubarak and P.W. 30 Mst. Manju. It is the prosecution case that the appellant was not known earlier to any of the witnesses. Thus, the identification parade was arranged in the presence of P.W. 34 Sudhir Pareek, AMJM No. 2, Chittorgarh. 8. It is evident from the memo of identification parade Ex.P. 21 that P.W. 11 Hasam could not identify the appellant. Similarly, it is evident from Ex.P. 35 that P.W. 25 Mubarak could not identity the appellant. Similarly, P.W. 30 Mst. Manju did not identify the appellant as is evident from Ex.P. 63. P.W. 11 Hasam and P.W. 25 Mubarak did not identify the appellant even in the court. 9. P.W. 30 Mst. Manju did not initially identify the appellant, when her statement was recorded in the court on 27.9.95. She was re-called and re-examined on 19.9.96. She identified the appellant in the court when she was re-examined on 19.9.96. With respect to the identification proceedings, she stated that she could not identify the appellant as there was a chit on his eyes. The learned trial Court has found the explanation given by PW. 30 Mst. Manju satisfactory and found this circumstance of "last seen" proved. In the opinion of the trial court, the identification in the court was sufficient. In our opinion, the learned Judge has committed error in relying upon the evidence of identification without being identified in the proceedings before the learned Magistrate. In the court also, she could not identify the appellant on 27.9.95. She identified him on re-examination on 19.9.96. We do not consider it safe to rely on the identification of PW. 30 Mst. Manju. Thus, in the facts of the case, the identification of the appellant by Mst. Manju cannot be relied upon. Thus, the prosecution has failed to establish the first circumstance of "last seen" by cogent evidence. 10. As far as the second circumstance of recover is concerned, the appellant was arrested on 27.12.93 vide Ex.P. 38. In pursuance of the information given to P.W. 32 Roopkishore, Investigating Officer, vide Ex.P. 41, a silver `Kandora' was recovered vide Ex.P. 10. The recovery was made in the presence of motbirs P.W. 9 Ganga Ram and P.W. 10 Devilal. The ornaments were identified by P.W. 11 Mst. In pursuance of the information given to P.W. 32 Roopkishore, Investigating Officer, vide Ex.P. 41, a silver `Kandora' was recovered vide Ex.P. 10. The recovery was made in the presence of motbirs P.W. 9 Ganga Ram and P.W. 10 Devilal. The ornaments were identified by P.W. 11 Mst. Bhagwani in the identification proceedings Ex.P. 19. The identification proceedings have been proved by P.W. 34 Sudhir Pareek, AMJM No. 2, Chittorgarh. He has admitted that only two articles were mixed alongwith the recovered articles. P.W. 11 Mst. Bhagwani in the cross examination has admitted that the ornament was shown to her at the Police Station. It is not in dispute that the photographs of the ornamens were taken by the police and they are placed on record. The evidence of recovery deserves to be rejected on the sole ground that PW. 11 Mst. Bhagwani has admitted in the cross examination that the ornaments were shown to her at Police Station before the identification proceeding was held. 11. As far as the recovery of silver `Kadiya' is concerned, the said article has been identified by P.W. 23 Mst. Heera, mother-in-law of as deceased. It has been admitted by PW. 34 Sudhir Pareek that only one item was mixed with the recovered article. It has also been admitted that the photographs of the ornament article were taken. The recovery of the ornament does not inspire confidence for the reason that only one article was mixed with the recovered article and the photographs of the article ao were taken. Thus, in our view, the prosecution has failed to establish by cogent evidence the second circumstance of recovery of articles belonging to the deceased. 12. The third circumstance is a recovery of shawl of the deceased. The shawl was recovered vide Ex.P. 37 in pursuance of the information given by the accused vide Ex.P. 39. In the identification proceedings Ex.P. in the presence of P.W. 34 Sudhir Pareek, the shawl was identified by P.W. 17 Mst. Barji. The photographs of the shawl were also taken. The shawl is of ordinary pattern. in our view, the prosecution has failed to establish the recovery of shawl by cogent evidence. Even if the recovery of the shawl is found to be proved, that in itself is not sufficient to connect the appellant with the alleged crime. 13. Barji. The photographs of the shawl were also taken. The shawl is of ordinary pattern. in our view, the prosecution has failed to establish the recovery of shawl by cogent evidence. Even if the recovery of the shawl is found to be proved, that in itself is not sufficient to connect the appellant with the alleged crime. 13. In view of the aforesaid, none of the circumstances has been established by cogent evidence on the basis of which any inference of guilt against the appellant can be drawn. Thus, in our view, the prosecution has failed to bring home the charges levelled against the appellant. The appellant is entitled to benefit of doubt. 14. Consequently, this appeal is allowed. The judgment of the learned Additional Sessions Judge No. 2, Chittorgarh, dated 30.11.1996 convicting the appellant for the offence under section 302 IPC and allied offences is quashed and set aside. The appellant is acquitted of all the charges levelled against him. Appellant Chunnilal S/o Devilal is in jail. He shall be released forthwith, if, he is not required in any other case.Appeal dismissed. *******