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2005 DIGILAW 2877 (RAJ)

Sundiya @ Hansraj v. State of Rajasthan

2005-11-07

SHASHI KANT SHARMA, V.K.BALI

body2005
Judgment V.K. Bali, J.-Prosecution secured conviction of the appellant Sundiya @ Hansraj under Section 302, IPC on the basis of circumstantial evidence. The appellant has since been convicted under Section 302, IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs. 4,000/-and in default of payment of fine to further undergo simple imprisonment for a period of four months vide order dated 21.09.2002 recorded by learned Additional District and Sessions Judge, Fast Track, Ajmer. 2. In the present appeal filed by Sundiya, the only question is as to whether the chain of circumstantial evidence is complete enough to return a finding of guilt or there are such chinks which may not be compatible with the only hypothesis, that the appellant alone is guilty of the crime. 3. Shanti Devi as per prosecution version, was done to death on the intervening night on 13/110.1999. An FIR with regard to the incident was lodged at 9.00 A.M. on 110.1999 by Arun Kumar PW. 6. In the written report that came to be lodged by him it was stated that in his family Nauratmal is related to him like his Grandfather. He is 75 years of age, whereas his wife Smt. Shanti is about 72 years. His Grandfather Nauratmal is suffering from Paralysis and therefore, sleeps in a separate room, whereas his grandmother Shanti Devi sleeps in another room. His Grandmother looks after her husband, and, therefore, the door of the room is not locked from inside. They do not have any child. They alone are living in the house. Today in the morning like everyday the milk vendor called them but nobody responded. He was living in the neighborhood. When he looked at their rooms, he found that both the rooms were locked from inside. From the roof he went to the Naal and saw that his grand mother Shanti Devi was lying on the cot. She was soaked with blood. Her dead body was lying there. There was a deep wound in her neck which was caused by Knives, she had died. The necklace that she used to wear, the tops and pandles were missing. Only one pandle in each hand was still there. Paijab were also there in both the feet. The nose tops were also still there. Brief-cases in broken conditions were lying scattered. 4. Dr. The necklace that she used to wear, the tops and pandles were missing. Only one pandle in each hand was still there. Paijab were also there in both the feet. The nose tops were also still there. Brief-cases in broken conditions were lying scattered. 4. Dr. Ashok Sharma, examined as prosecution witness, conducted post-mortem on the dead body on 110.1999 and found four injuries on her dead body. She sustained injuries by sharp edged weapon. The cause of death was excessive bleeding because of injuries sustained by her. He proved post-mortem report Ex.P. 23. 5. The prosecution after investigation found the appellant, Teekam Chand and Ambu Nath as the culprits but in as much as later two were absconding trial was conducted only against Sundiya @ Hansraj. The prosecution relied upon disclosure statement made by the appellant, pursuant to which the appellant is stated to have got recovered a necklace and piece of gold, which was converted into gold by melting the golden ornaments removed from the body of Smt. Shanti Devi at the time of murder. It also relied upon recovery of “Dantli” stated to be weapon with which Smt. Shanti Devi was done to death, as also extra-judicial confession stated to have been made by the appellant before Ms. Kushida PW. 5, as also confirmation of place of occurrence by the appellant himself . The learned trial Judge disbelieved the prosecution version with regard to disclosure statement made by the appellant and recovery of necklace and piece of gold at his instance pursuant to the said disclosure statement. The learned trial Judge however, on the basis of other circumstantial evidence, as mentioned above, returned a finding of guilt. 6. The learned Counsel appearing for the appellant vehemently contends that in the facts and circumstances of the present case no reliance could at all be placed upon the evidence led by the prosecution pertaining to recovery of Dantli, stated to be weapon of offence, extra-judicial confession stated to have been made by the appellant before Ms. Kushida PW. 5 and confirmation of the place of occurrence by him. 7. We have heard the learned Counsel appearing for the parties and with their assistance examined the records of the case. There appears to be considerable merit in the contentions of the learned Counsel as noted above. 8. Kushida PW. 5 and confirmation of the place of occurrence by him. 7. We have heard the learned Counsel appearing for the parties and with their assistance examined the records of the case. There appears to be considerable merit in the contentions of the learned Counsel as noted above. 8. In so far as, recovery of necklace and piece of gold from the appellant pursuant to disclosure statement made by him is concerned, as mentioned above, evidence led on that behalf by the prosecution has already been disbelieved. No arguments have been raised by the learned Public Prosecutor to show that finding recorded on that behalf need interference by this Court. The prosecution is thus left with evidence with regard to recovery of Dantli, the weapon of offence, extra-judicial confession and confirmation of place of occurrence by the accused. The place of occurrence as conceded during the course of arguments was known to the police before same came to be disclosed by the accused on 211.1999. It is admitted that immediately on receipt of information i.e., FIR Ex.P3, police had visited the place of occurrence. This circumstances has to be excluded from the chain of circumstances on the basis of which the prosecution endeavours to secure conviction of the appellant. In so far as, recovery of Dantli is concerned, Raghunandan Bhurelal Sharma PW. 14, the recovery witness did not support the prosecution case. Devki Lal PW. 13 however, supported the prosecution case on that count but his evidence inspires no confidence whatsoever. The appellant is stated to have got recovered Dantli, on 211.1999 after one and a half months from the date of occurrence. That apart, this witness stated in the cross-examination that Dantli was recovered from the house of one Santulal, who had died but the member of his family were residing there only. Recovery of Dantli from the place not exclusively known to the appellant but from the house where number of people were residing, would of no meaning and consequence. Recovery of weapon of offence which is made on the basis of disclosure statement made by the accused is relevant only if it may be from a place which may be known to the accused alone. Recovery of weapon of offence which is made on the basis of disclosure statement made by the accused is relevant only if it may be from a place which may be known to the accused alone. If , therefore, recovery is made from the place open to all and sundry or group of persons, the same cannot form a chain of evidence connecting the accused with the crime. It will be further seen from the evidence of the witness that the sealed parcel in which Dantli was supported to have been kept, when opened in the Court, was not found to contain the same. The appellant is stated to have made extra-judicial confession before Ms. Kushida PW. 5, who after the death of her husband was living with the appellant as his wife. While appearing as PW. 5, she stated that she had strained relations with the appellant. In the cross-examination she stated that she was having strained relations with the appellant when she has delivered a female child. She had gone from her husband at that time and over since was residing separately. She admitted that she was living separately from her husband and till date she had strained relations with him. It is not possible to believe that the appellant would confine commission of serious offence to a person who may be his wife but with whom he had absolutely strained relations and was not even living with her. Normally, confessions are made to a person in authority who may be able to help him. With the kind of strained relations of the appellant with Ms. Kurshida PW. 5, even though his wife, he (appellant) could not get any help from her. In fact, in all probability if the appellant might have disclosed commission of crime to her she would have been the first person to depose against him or report the matter to the police. The confession stated to have been made by the appellant to his wife with whom he had strained relations, appears to be made of affair only with a view to strengthen the prosecution case. 9. The prosecution, in considered view of this Court did not lead reliable evidence that may connect the appellant with the crime. In any case, the chain of circumstantial evidence is not complete enough to return a finding of guilt. 10. 9. The prosecution, in considered view of this Court did not lead reliable evidence that may connect the appellant with the crime. In any case, the chain of circumstantial evidence is not complete enough to return a finding of guilt. 10. In view of the discussion made above, we allow this appeal. The order of conviction and sentence recorded by learned Additional District and Sessions Judge, Fact Track, Ajmer, dated 21.09.2002 is set aside. The accused is acquitted of the charges framed against him. He be released forthwith, if not required in any other case.