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2002 DIGILAW 1247 (RAJ)

Kana @ Kishna & Kanhaiyalal v. State

2002-07-18

B.PRASAD, N.P.GUPTA

body2002
JUDGMENT 1. - This is an appeal by the accused appellant from Jail. The appellant Kana @ Kishan @ Kanhaiyalal has been convicted by the Special Judge, SC/ST, Prevention of Atrocities Cases, Pratapgarh for the offences under Sections 302 and 397 IPC, and for each of the offences, has been sentenced to imprisonment for life along with a fine of Rs. 5000/-, in default of payment of fine, to undergo two months simple imprisonment, both substantive sentences have been ordered to run concurrently. 2. The case of the prosecution is that on 13.08.94, one Mangu submitted an oral report at Police Station Nikumbh, to the effect that one Babri wife of informant's Bhanej Nanda, along with two years old child, is lying in the Nala, with both foot amputated. It was alleged that some unknown miscreant has killed them, and has taken away the silver anklets of Babri, which weighed around 900 grams. It was also given out that Babri had gone to graze the goats previous day, and did not return. On this report, a case was registered, and investigation undertaken, wherein, site was inspected, inquest report was prepared, autopsy was got conducted, statement of witnesses were recorded, and certain belongings like umbrella, Lota, Katori, Towel, slipper and the garments of the deceased were seized, and dead body was delivered to the heirs for cremation. However, despite efforts, the accused could not be located, and therefore, FR Adampata Mal MuIjiman was submitted. But then, under the orders of the Higher Officials, investigation was reopened. It is in this process that one accused Balu who was arrested in FIR No. 184/96 of Police Station Nimbaheda disclosed that this incident was committed by the present appellant. Thereupon, the present appellant was arrested, and according to prosecution, on his information, the weapon of offence "Churi" was recovered, and it was informed that the silver belongings were sold by him to Ramesh Chandra (the co-accused), which were recovered from Ramesh Chandra, the goods were got identified, the weapon of offence was sent for Forensic examination, and thereafter the charge sheet was submitted. 3. The accused Ramesh Chandra, against whom the only charge framed was of the offence under Section 411 IPC, has been acquitted by the learned trial court, on the ground that there is nothing to show that the accused has received the goods knowing them to be stolen property. 4. 3. The accused Ramesh Chandra, against whom the only charge framed was of the offence under Section 411 IPC, has been acquitted by the learned trial court, on the ground that there is nothing to show that the accused has received the goods knowing them to be stolen property. 4. Obviously in the present case, there is no direct evidence to connect the accused with the crime, and the case rests solely on the circumstantial evidence. Suffice it to say, that it is established law, that in cases where the case rests on the circumstantial evidence, each circumstance should be established by legal and reliable evidence, each circumstance so established should point towards the guilt of the accused, all circumstances so established should form a complete chain, establishing the guilt of the accused, and at the same time the foremost additional requirement is that the chain so formed, apart from establishing the guilt of the accused should also negative the innocence of the accused on all reasonable hypothesis. 5. In the present case, even according to the prosecution, the accused has been arrested after more than 2 years of the date of incident. The dead body has already been recovered and had been post mortemed. It cannot be disputed that the victim died a homicidal death, and silver ornaments which were there on the person of the deceased were removed. The question is as to whether the appellant can be held to be the person from whose possession the ornaments were recovered, and If Yes, then whether on the basis of that recovery/ possession, he can be held guilty of the offence of murder and 397 IPC? 6. The prosecution of course has tried to put forward some other circumstances, like showing the place of incident by the accused vide Ex.P1, recovery of Churi on the information of, and at the instance of the accused, recovery of Silver Ornaments from the shop of other co- accused Ramesh Chandra, the identification of silver ornaments, and Ex.P19 purporting to be the document of pledge, whereby the appellant is said to have pledged the ornaments with co-accused Ramesh Chandra. 7. The learned trial court by relying upon these circumstances, and by relying upon the judgment of this Court in Anada Singh's case, reported in 2000 Cr.Law Reporter, (Raj) p.66, has convicted the appellant as above. 8. 7. The learned trial court by relying upon these circumstances, and by relying upon the judgment of this Court in Anada Singh's case, reported in 2000 Cr.Law Reporter, (Raj) p.66, has convicted the appellant as above. 8. On going through the record and after hearing the either side, in our opinion, the learned trial court was in error in convicting the appellant as above. 9. So far as the identification of the spot of incident is concerned, that can hardly be said to be a circumstance, indicating towards the guilt of the accused, more so when the alleged place of incident is an open water source lying between the two hillocks, and a thoroughfare. So far as the recovery of "Churi" is concerned, apart from the fact that it is said to have been recovered after more than two years, there is nothing to show the same to be stained with blood, in absence of Forensic Science Laboratory Report, as such this circumstance is also wholly innocuous. 10. Then comes the circumstance of recovery of silver belongings. The learned trial court has recorded the conviction by relying upon the aforesaid judgment in Anada Singh's case. The Anada Singh's case proceeds on the presumption enacted under Section 114 of the Evidence Act available on the basis of accused being in recent possession of the ornaments. So far as the legal proposition is concerned, it is hardly disputable. The question is as to whether in the present circumstances, it is established that the accused was in possession of the ornaments, and then the question arises as to whether the presumption can be drawn against the accused from that possession? 11. In our view, even according to prosecution the belongings have not been recovered from the possession of the accused, rather they have been recovered from the possession of Ramesh Chandra the co-accused. So far as the appellant is concerned, he is only alleged to have shown the shop, where he is alleged to have disposed of the silver belongings, but then that does not amount to, information given, in pursuance whereof any fact has been discovered, so as to be admissible in evidence under Section 27 of the Evidence Act. The prosecution realising this circumstance has tried to rely upon Ex.P-19. The prosecution realising this circumstance has tried to rely upon Ex.P-19. In that regard, we may at once observe that, there is no evidence to prove Ex.P-19 to have been executed or signed by the appellant. From the material available on record, the document Ex.P-19 only rests in the realm of stand taken by or statement made by Ramesh Chandra the co-accused, which hardly constitutes any legal evidence against the appellant. 12. Apart from the fact that there is no evidence to prove Ex.P-19, it is significant to note that even in the statement under Section 313 Cr.PC., the accused has not been put this circumstance, or the document Ex.P-19. of course question No.20 has been asked, to the effect that the ornaments pledged and were got recovered on information given under Section 27, and the document of pledge Ex.P-19 was produced, but then what is significant to note is that this question relates to the accused Ramesh Chandra, and is couched in a language which relates only to the involvement of the accused Ramesh Chandra, inasmuch as, in this question the things put are Ex.P-17, the arrest memo of Ramesh Chandra, then Ex.P-18, the information given by the accused Ramesh Chandra about having received the ornaments by way of pledge from the present appellant, and then to have further pledged all those ornaments in Rs.3000/- to one Ashok Kumar. It is in this sequence that the accused Ramesh Chandra was asked that he had delivered the document of pledge Ex.P-19. Thus, this question does not at all relate to the appellant Kishan. Likewise, question No.22 relating to recovery of the ornaments vide Ex.P-10 also relates to the accused Ramesh Chandra inasmuch as vide Ex.P-20 the information memo given by Ramesh Chandra was recorded, and pursuant to that information, the ornaments were recovered vide Ex.P-10. The only question put to the appellant is question No.19 to the effect that he took the police to Neemuch, and indicated a person sitting on the shop "Sandeep jewellers" and gave out to have sold the ornaments to that person, whereupon the name of that person was asked, who disclosed it to be Ramesh. Thus, in our view, there is absolutely no legal admissible evidence to show that it was the appellant who was in possession of the silver ornaments of the deceased, muchless that he had pledged them with Ramesh. Thus, in our view, there is absolutely no legal admissible evidence to show that it was the appellant who was in possession of the silver ornaments of the deceased, muchless that he had pledged them with Ramesh. In that view of the matter, simply on the basis of this Ex.P-19, it cannot be concluded that, it was the appellant who was in possession of the silver ornaments in question, or that he had disposed them of. 13. The learned trial court was, thus, clearly in error in relying upon the judgment given in Anada Singh's case, wherein the incident related to 27.5.94, and the ornaments were recovered on the basis of the information given by accused under Section 27 Evidence Act, and from the exclusive possession of the accused himself on 2.8.94. The ornaments were lying concealed in the residential house of the accused in that case. In that view of the matter, the presumption under Section 114 of the Evidence Act was invoked by this Court, while the circumstances of the present case are entirely different. 14. It appears from the impugned judgment specially para No.7, wherein the contention of the prosecution has been noticed to the effect that the appellant is a habitual offender, against whom numerous cases of Robbery, Theft, Murder etc. are pending, and that he is a previous convict in a case of Murder, and Robbery, and that at present he is undergoing life term. Significantly, there is no such evidence available on record. On the other hand, a look at Ex.P-14, Arrest Memo of the accused, would show that he was arrested from his residence on 5.10.96'at 4.30 PM, and even till the date, the learned public prosecutor has not been able to point out as to in what other cases, the appellant has been convicted or undergoing sentence. It thus appears that looking to the caste of the accused, the learned trial court, in its sub conscience, entertained strong conviction about the guilt of the accused, though without any reasonable basis. The various judgments of this Court, time and again, have warned against production of evidence of previous conviction during the pendency of the trial, precisely to avoid this risk of learned trial court getting prejudiced in the matter of arriving at the conclusion of the guilt as has happened in the case in hand. The various judgments of this Court, time and again, have warned against production of evidence of previous conviction during the pendency of the trial, precisely to avoid this risk of learned trial court getting prejudiced in the matter of arriving at the conclusion of the guilt as has happened in the case in hand. The previous conviction may have relevance for the purpose of determining the quantum of punishment to be inflicted on the accused after he is found guilty. Thus, the adjudication of guilt has to be dispassionate, and on the basis of material brought on record, and legally admissible. We would also refrain ourselves from falling in the same pit, by relying upon some scrap of paper available in the file giving list of some 16 cases said to be pending trial against the appellant. This list, we are talking about only for the purpose of showing incorrectness of the recital in para No.7 of the judgment, inasmuch as, that this list is not required to be seen in the present case but then none of the 16 cases said to be pending against the appellant include any offence under Section 302 IPC. Thus, it is clear that the learned trial court was swayed away by the stray argument made by the learned public prosecutor. To say the least, such approach on the part of the learned trial court is seriously deprecated. 15. The net result of the aforesaid discussion is that we are unable to sustain the conviction of the appellant for any of the offences under Section 302 or 397 IPC. 16. The appeal is, therefore, allowed. The impugned judgment is set aside. The appellant Kana @ Kishna @ Kanhaiyalal is acquitted of all the charges. He shall be released forthwith, if not required in any other case.Appeal allowed - Conviction set aside. *******