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2003 DIGILAW 1347 (RAJ)

Ramesh Kumar v. State of Rajasthan

2003-09-23

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2003
JUDGMENT 1. - The appellant along with one Chothu @ Chauthmal was indicted in Sessions Case No. 77/1997 before the learned Sessions Judge Jaipur District Jaipur for having committed murder of Badam Devi wife of Moti Lal Raigar. Learned trial Judge vide judgment dated October 31, 2000 convicted and sentenced the appellant as under: U/s. 302 IPC To suffer Imprisonment for life and fine of Rs. 10,000/-, in default to further suffer one Year Rigorous Imprisonment. U/s. 394/397 IPC To suffer Seven Years Rigorous Imprisonment and fine of As 5000/- in default to further suffer Six Months Rigorous Imprisonment. Both sentences were ordered to run concurrently. Co-accused Chothu @ Chauthmal was however acquitted from the to charges. 2. On receiving telephonic information that a dead body was lying on plot No. 67/192 Tara Chand, the Sub Inspector of Police Station Sanganer rushed to the spot and found a woman lying dead. A case under Section 302/201 IPC was registered and investigation commenced. Statements of ts witnesses were recorded and it was revealed that the appellant and one Chauth Mal came to the house of deceased Badam Devi and took her with them. Badam Devi was last seen alive in the company of the appellant and Chauth Mal. The police arrested appellant and Chauth Mal and at the instance of appellant piece of gold and silver anklets belonging to Badam Devi got recovered. After completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Sessions Judge Jaipur District. Charge under Sections 302 and 394/397 IPC was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as 26 witnesses and got exhibited 49 documents. In his explanation under Section 313 Cr.PC., the appellant claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. There is no eye witness of the occurrence and the case of prosecution rests on circumstantial evidence. Following two circumstances were relied upon by the learned the: Judge for convicting and sentencing the appellant: (i) Deceased Badam Devi was last seen in the company of appellant. (ii) Recovery of piece of gold and silver anklets belonging to deceased was effected at the instance of the appellant. 4. Following two circumstances were relied upon by the learned the: Judge for convicting and sentencing the appellant: (i) Deceased Badam Devi was last seen in the company of appellant. (ii) Recovery of piece of gold and silver anklets belonging to deceased was effected at the instance of the appellant. 4. The prosecution examined Chandrakanta (Pw. 3), Moti Lal (Pw. 5) and Nirmala (Pw. 6) to establish that deceased Badam Devi before her death had gone with the appellant and Chothu @ Chothmal from her house. Chandra Kanta (Pw. 3), the daughter of the deceased, deposed that while she was coming from the market she met with her mother, who told her that she was going to Jagatpura. She also stated that she did not see appellant with her mother. Moti Lal (Pw. 5), husband of the deceased, in his deposition stated that when he came back to his house around 6.00 PM his daughter Nirmala told him that Ramesh came to his house and her mother had gone with him and Chauth Mal. Nirmala (Pw. 6), another daughter of deceased. deposed that Ramesh came to her house and persuaded her mother to accompany him. Her mother then went with Ramesh and Chauth Mal. Testimony of these witnesses was not found sufficient by the learned trial Judge to convict co-accused Chauth Mal and he was acquitted. As against the appellant that circumstances of last seen and recovery of piece of gold and silver anklets belonging to the deceased were found established by the learned trial Judge. It was observed in the impugned judgment that on January 5, 1997 the appellant had gone to the house of deceased Badam Devi and took her with him. Badam Devi was last seen alive in the company of appellant. On January 5. 1997 itself appellant had sold silver anklets belonging to Badam Devi to one Brijesh Kumar. Proprietor of Shyam Jewellers, Johari Bazar Jaipur and at the instance of appellant the said silver anklets got recovered. Learned trial judge also observed that on January 11, 1997 piece of gold weighing 8 gms. 20 ml. gms. was sold by the appellant to Gagan Jewellers at Guna in consideration of Rs. 3200/- vide voucher (Ex.P-28) and the appellant got the said piece of gold recovered. 5. Learned trial judge also observed that on January 11, 1997 piece of gold weighing 8 gms. 20 ml. gms. was sold by the appellant to Gagan Jewellers at Guna in consideration of Rs. 3200/- vide voucher (Ex.P-28) and the appellant got the said piece of gold recovered. 5. It is well settled that the court has to proceed to examine each of the pieces of incrimination circumstantial evidence so as to find out it each one of the circumstantial evidence is proved individually and whether collectively is it forges such a chain as would fasten the guilt on the accused beyond any shadow of reasonable doubt. Circumstances should be established conclusively and there should not be any snap in the chain of circumstances. The circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. 6. In the present case we find that the circumstances are not sufficient to prove that the appellant is guilty. The learned trial judge found the appellant guilty on the basis of the scanty, discrepant and fragile evidence. Brijesh Kumar (Pw. 14), categorically stated that the appellant came to his shop along with one woman and two children and sold silver anklets vide voucher (Ex.P-19) which was issued by him. The Voucher Ex.P-19 was drawn on January 5, 1997 when Badam was alive. As already noticed from the testimony of Nirmala (Pw. 6) that Badam left her house on January 5, 1997 itself. Probably she herself had gone to the shop of Brijesh Kumar along with the appellant. No attempt was made by the investigating authority to find out as to with whom the appellant had gone to sell out the silver anklets and as to whether at that time Badam was dead or alive. It is difficult to believe that immediately after committing murder of Badam, the appellant rushed to the shop of Brijesh Kumar to sell the silver anklets that were removed by him from her dead body. So far as recovery of piece of gold at the instance of appellant is concerned we have before us the testimony of Shyam Kishore (Pw. 25). According to Shyam Kishore piece of gold was sold on January 11, 1997. The prosecution has failed to establish that piece of gold belonged to deceased Badam. So far as recovery of piece of gold at the instance of appellant is concerned we have before us the testimony of Shyam Kishore (Pw. 25). According to Shyam Kishore piece of gold was sold on January 11, 1997. The prosecution has failed to establish that piece of gold belonged to deceased Badam. It is also inexplicable that why the appellant had gone to Guna (M.P.) to sell the gold. He could have easily sold the piece of gold along with silver anklets to Brijesh Kumar. We find many missing links in the chain of evidence. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the appellant who committed the crime. There must be something more establishing connectivity between the accused and the crime. In the instant case we are of the firm view that as learned trial judge committed error in appreciating circumstantial evidence. Therefore, the finding of the trial judge required to be interfered with and it must be held that the prosecution failed to prove the guilt at the appellant. 7. As a result of above discussion, we allow the appeals and set aside the impugned Judgment dated October 31, 2000 of learned Sessions Judge so Jaipur District Jaipur. We acquit the appellant Ramesh Kumar of the charges under Sections 302 and 394/397 IPC. The appellant is in custody, he shall be set at liberty forthwith if not required in any other case.Appeal allowed - Conviction set aside. *******