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2004 DIGILAW 463 (RAJ)

Jagiya @ Jagdish v. State

2004-03-25

B.PRASAD, PRAKASH TATIA

body2004
JUDGMENT 1. The present appeal is filed against the judgment of the learned Additional Sessions Judge, Barmer in Sessions Case No. 24/96 dated 2.12.1997 whereby, the learned Additional Sessions Judge has convicted the accused appellants as under: Name of accused Offence Punishment Jagiya @ Jagdish Section 302 Indian Penal Code Life Imprisonment with Jagdish fine of Rs. 100/-, in default of payment of fine, 15 days additional imprisonment. Jagiya @ Jagdish Section 380 Indian Penal Code Four years rigorous imprisonment with fine of Rs. 100/-, in default of payment of fine, 15 days additional rigorous imprisonment. Khetia Section 380 Indian Penal Code Four years rigorous imprisonment with fine of Rs. 100/-, in default of payment of fine, 15 days additional rigorous imprisonment. 2. The prosecution case was based on an alleged incident happened during the intervening night of 2nd and 3rd, February, 1996 in which Smt. Dheli was allegedly killed at her resident situated in Kalyanpura area in Barmer. She used to live alone. In the morning of 3rd February, 1996 at about 8.30 a.m., when Suresh Sindhi, a tenant of the deceased went to her residence to give rent after climbing stairs, he saw that the door was half opened. He made a call to the deceased but the same was not responded. He looked into the house where he found that Smt. Dheli was lying dead on her cot. He made shouts and called her neighbours Nainji Jain. Nainji further called Dinesh, Vijay Kumar and Bohri Das. They also witnessed the site. Smt. Dheli had no issue. She had taken one Mohanlal in adoption. He was living out of Barmer. An information was gathered that some miscreants had killed Smt. Dheli allured by greed of money. 3. A case was registered at Police Station, Barmer Kotwali under section 302 Indian Penal Code on 03.02.1996. On 04.02.1996, a list of articles apparently stolen was submitted to the police and the case was investigated. From the scene of occurrence, foot steps were located. They were traced out and the accused were arrested. At their instance, some stolen articles were recovered which were put for identification and after usual investigation, a challan was filed in the Court of Magistrate who committed the case and the case ultimately came for trial to the Court concerned. 4. The accused were charged for the offences under sections 302/24, 380/34 and 460/34 Indian Penal Code. At their instance, some stolen articles were recovered which were put for identification and after usual investigation, a challan was filed in the Court of Magistrate who committed the case and the case ultimately came for trial to the Court concerned. 4. The accused were charged for the offences under sections 302/24, 380/34 and 460/34 Indian Penal Code. The accused denied the charges and claimed trial. At the trial, 19 witnesses were examined under section 313 Criminal Procedure Code No defence was produced. At the trial, PW-1 Bohri Das deposed before the trial Court that he had taken the traces of the foot prints and has also deposed to the effect about the fact of handing over of the dead body. PW-2 Purushottam has proved the fact of arrest of the accused persons Jagiya and Khetiya on 20.03.1996 vide Ex.P/8 and Ex.P/9 nearly more than a month and half. PW-3 Pitamber Das who is the neighbour of the deceased says that he saw Smt. Dheli on 02.02.1996. In the night about 7.00-8.00 p.m., he retired to his home and in the morning of 03.03.1996, when Suresh informed him, he reached the house of Smt. Dheli and found her murdered. PW-4 Suresh who is the person who had gone to the scene of occurrence for the first time has deposed that when he went in the morning, he saw Smt. Dheli lying dead on the cot in her own house. He called the neighbours Nainji. Dinesh, Bohri Das etc. and had given Ex.P/10, a report to the police station. He was the witness for site inspection also. 5. PW-5 Mohan Lal is the adopted son of the deceased who having received a telephonic call on 3.2.1996 arrived in Barmer on 4.2.1996. He submitted a list of stolen articles. He was also a witness of identification of the stolen articles. PW-6 Shankar Lal is the witness of recovery of knife, Pant Bushirt of the accused vide Ex.P/13 and Ex.P/14. 6. PW-7 Chhaganlal is the photographer who had taken photographs of the scene of occurrence. PW-8. Chetan Giri is the person who has taken the traces of the foot prints. He has also taken the traces of foot marks of the accused which was later on sent for comparison. 6. PW-7 Chhaganlal is the photographer who had taken photographs of the scene of occurrence. PW-8. Chetan Giri is the person who has taken the traces of the foot prints. He has also taken the traces of foot marks of the accused which was later on sent for comparison. PW-9 Dungar Singh is the witness who on 03.02.1996 received the information given by PW-4 Suresh at police station, Kotwali Barmer and lodged the report. PW-10 Labhu Ram got a ring recovered at the instance of Jagiya and a Kanthi at the instance of Khetia. PW-11 Dr. K.C. Dubey conducted the post-mortem of the deceased. PW-12 Chanana Ram Malkhana incharge speaks about the seal condition of the packet and PW-13 Krishna Chand speaks of the fact of handing over of the packet to PW-15 Prem Kumar who in turn handed over the same to Hindu Singh who carried them to Forensic Science Laboratory. PW-16 Gopal Singh is the Station House Officer who recorded the first information report and conducted the investigation and made recoveries. PW-17 is the Magistrate who conducted the identification parade of the ring and gold kanthi. PW-18 Mangi lal is the Head Mohrir who deposited the packets in the malkhana. 7. Learned trial Court has observed that there is no eye-witness in the case. The case is based on circumstantial pieces of evidence. The circumstances which has come on record relate to the fact of recovery of two ornaments alleged to have been taken away from the body of the deceased. These are a gold ring and a gold Kanthi. Second circumstance is lifting of traces of foot prints from near the dead body. The third circumstance is recovery of Rampuri knife at the instance of Jagiya @ Jagdish. The pant and bushirt of Jagiya have been found to be blood stained with human origin. The knife was also found to be stained with blood of human origin of group A. The trial Court has found that the circumstance of recovery of knife and clothes go against Jagiya and therefore, they are liable to be read against him. The presence of foot prints near the bed of deceased also goes against the accused. The ornaments have been identified by Mohan lal to be belonging to the deceased. The finger ring was recovered at the instance of Jagiya. The presence of foot prints near the bed of deceased also goes against the accused. The ornaments have been identified by Mohan lal to be belonging to the deceased. The finger ring was recovered at the instance of Jagiya. Considering these circumstances, the conviction was recorded against Jagiya under sections 302 and 380 Indian Penal Code and Khetia under section 380 Indian Penal Code. 8. Learned counsel for the accused has emphasised that the circumstances which have been relied upon are not conclusive in its character. The offence is alleged to have occurred on 03.02.1996. The accused were arrested after a considerable period on 20.03.1996, nearly more than one and half months. Therefore, recovery of ornaments cannot be considered to mean that they were taken by these accused persons from the person of the deceased and theft was committed. May be that they received it from somebody and time lag suggests that the offence under section 380 Indian Penal Code cannot be made out, so also the recovery cannot be read against the accused Jagiya for the offence under section 302 Indian Penal Code. 9. Further, the learned counsel for the appellants has urged that the knife has no consequence in the case. There was no injury on the person of the deceased inflicted by the knife. She died of strangulation. There were abrasions but the doctor in his statement has not stated that the knife was capable of inflicting such injuries. Therefore, the knife was not connected with the crime. The blood stained clothes also cannot connect the accused with the crime because the clothes were recovered after more than one and half months and it cannot be believed that any accused person would keep the clothes in a condition where they would be blood stained for such a long time. It is also not suggested that the clothes recovered were the clothes worn by accused at the time of crime. That being the position, the recovery of clothes has no consequence. As regards the evidence of foot prints, the learned counsel for the accused has urged that science of identification of foot mold is at a rudimentary stage and as such it cannot be conclusively said that the identification so made can be related to crime. More particularly, when there were only three foot prints alleged to be available and one of them was found to be identifiable. More particularly, when there were only three foot prints alleged to be available and one of them was found to be identifiable. In such circumstances, the evidence of foot mold would not be sufficient to bring home the offence. 10. Learned counsel has further stressed that the chain of circumstances is not complete. The recovery is made after a lapse of more than one and half months, therefore, it would not relate to the commission of crime. 11. Per contra, learned Public Prosecutor has urged that the accused was in exclusive possession of ornaments. His clothes have been found to be stained with blood and there was foot mold. These circumstances are enough to hold that the accused was guilty of the crime alleged and he has committed the offence and the trial Court has rightly convicted the accused persons. 12. We have given out thoughtful consideration and perused the record. This case being a case of circumstantial evidence, the circumstances obtaining on record will have to be given thoughtful consideration. The import of circumstances has to be critically examined. The circumstances of recovery of foot impression is a circumstance which cannot have any serious bearing because the science of identification of foot mold has not passed the test of reliability so far. The science of identification of foot prints is still imperfect and in rudimentary stage. It cannot have any serious bearing on the matter. Another circumstance is recovery of knife which have been found to be stained with blood but the doctor having not said that the injury sustained by the deceased was consequence of knife, the recovery of knife has also no consequence. 13. Another circumstance is recovery of clothes of Jagiya. These clothes have been found to be stained with human blood of human origina. The recovery was made after more than one and half months and it does not stand to reason that any cloth would remain for such a long time in a condition in which it was. The time lag raises suspicion about the authenticity of the clothes worn at the time of offence. There was no evidence that these clothes were worn by the accused at the time of commission of crime. The time of crime also dilutes the effect of circumstances. 14. All the circumstances narrated herein above are only of importance of creating suspicion. The time lag raises suspicion about the authenticity of the clothes worn at the time of offence. There was no evidence that these clothes were worn by the accused at the time of commission of crime. The time of crime also dilutes the effect of circumstances. 14. All the circumstances narrated herein above are only of importance of creating suspicion. They are not one which can be considered to be forming a chain and along with these circumstances, the only other circumstance which has been relied on is the circumstance of recovery of two ornaments. The mixing of other ornaments before identification of two ornaments is not appreciated. There has to be sufficient number of articles which was not there. Only his ornaments were mixed. The recovery was after a considerable lapse of time. Therefore, this recovery also does not lead to conclusion of the accused being guilty of the offences alleged. Chain of circumstances being not established, it is not prudent to hold that the offences have been rightfully held against them. The accused are entitled to the benefit of doubt because the circumstances do not conclusively lead to an irresistible conclusion of accused being guilty. That being the position the offences alleged to have been made out can be held to be not supported by evidence and therefore, they could not have been convicted of the offences alleged against them. 15. In the result, the appeal is allowed. The conviction and sentence against both the accused appellants are set aside. They are behind the bars. They may be released forthwith if not required in any other case.Appeal dismissed. *******