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2005 DIGILAW 2977 (RAJ)

V. P. Suresh v. State

2005-11-14

SHASHI KANT SHARMA, V.K.BALI

body2005
Judgment Shashi Kant Sharma, J.-This Jail Appeal has been filed by the appellant V.P. Suresh against the Judgment and order dated 06.01.2001 passed by the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Jaipur whereby he convicted the appellant VP Suresh under Section 302 in alternative 302/34 and 201, IPC and sentenced him for the offences under Section 302, IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer six months SI and for the offence under Section 201 IPC seven years RI and fine of Rs. 500/-, in default to further suffer three months SI and acquitted the Shiv Ratan and Roop Bahadur for offences under Sections 302, in alternative 302/34, 201 and 120-B,IPC. 2. Mr. R.S. Chauhan, Advocate was appointed Amicus Curiea to represent the accused appellant. He has since been elevated to the bench, the case has been prepared by Mr. Satyapal Poswal, Advocate, whom we appointed Amicus Curiea to represent the accused appellant. 3. The brief facts essential for the disposal of this appeal are as under: 4. On 02.06.1999 Harimohan Sharma PW. 8 was informed by some labour that doors of the factory were closed. Harimohan Sharma went to the factory and informed the police. The police came on the spot and lock of the factory was broken and found dead body of Rameshwar Dayal lying in the factory. There were some injuries on the head, forehead and nose on the person of deceased Rameshwar Dayal. Harimohan Sharma lodged a written report Exhibit P-15 to the incharge of Police Station, Jalupura. A case was registered under Section 302, IPC. Autopsy was conducted on the body of deceased. Post-mortem report was also prepared and after completion of investigation, police filed challan before the concerned Magistrate against accused Roop Bahadur, Shivratan and V.P. Suresh for the offences under Sections 302 and 120-B, IPC. Case was committed to the Court of learned Sessions Judge, Jaipur City, Jaipur wherefrom it was transferred to the Court of Special Judge SC/ST (Prevention of Atrocities) Cases, Jaipur where the case was tried. The learned Special Judge framed charges against accused V.P. Suresh, Shiv Ratan and Roop Bahadur for the offences under Sections 302 in alternative 302/34, 201 and 120-B, IPC. All the three accused persons pleaded not guilty and claimed trial. Prosecution examined as many as 21 witnesses namely PW. 1 Bajranglal Sharma, PW. The learned Special Judge framed charges against accused V.P. Suresh, Shiv Ratan and Roop Bahadur for the offences under Sections 302 in alternative 302/34, 201 and 120-B, IPC. All the three accused persons pleaded not guilty and claimed trial. Prosecution examined as many as 21 witnesses namely PW. 1 Bajranglal Sharma, PW. 2 Mahaveer Prasad, PW. 3 Bodulal, PW. 4 Smt. Suman, PW. 5 Shankar Singh, PW. 6 Rajan Nayak, PW. 7 Tulshiram, PW. 8 Harimohan, PW. 9 Damodar Prasad Sharma PW. 10 Kanaram, PW. 11 Kailash, PW. 12 Bheruran, PW. 13 Sohan Lal, PW. 14 Kailsash PW. 15 Vaidh Ramanand, PW. 16 Dhanveer Singh, PW. 17, Dr. Sumant Datta, PW. 18 Ramphool Kherla, PW. 19 Vishal Singh, PW. 20 Rajendra Kumar Agarwal and PW. 21 Narendra Singh. Statements of all the accused were recorded under Section 313, CrPC. No defence witnesses were produced. After hearing the arguments, trial Court convicted the accused V.P. Suresh as indicated above and accused Roop Bahadur and Shiv Ratan were acquitted of the charges framed against them. 5. In this appeal, arguments of both the sides have been heard in detail. 6. Learned Counsel for the accused appellant has argued that there in no eye witness in this case and the trial Court has convicted the accused V.P. Suresh for the offence under Sections 302 and 201, IPC on the basis of some recoveries. It is also contended that in this case almost all important witnesses have turned hostile and no incriminating circumstances have been proved against the accused appellant, it is further contended that PW. 1 Bajranglal Sharma, PW. 2 Mahaveer Prasad, PW. 5 Shankar Singh, PW. 6 Rajan Nayak, PW. 7 Tulshiram, PW. 9 Damodar Prasad Sharma, PW. 10 Kanaram, PW. 11 Fazlu, PW. 12 Bheruram, PW. 13 Sohan Lal, PW. 14 Kailsash, PW. 15 Vaidh Ramanand, Pw. 19 Vishal Singh and PW. 20 Rajendra Kumar Agarwal have turned hostile and have not supported the prosecution case at all. It is also urged that PW. 9 Harimohan Sharma who lodged the report is son of the deceased and he has not said anything which may be termed as incriminating circumstance against the accused V.P. Suresh, PW. 16 Dhanveer Singh is a formal witness as he had taken some sealed packet from Police Station to Forensic Science Laboratory, Jaipur. PW. 18 Ramphool Kharela is also a formal witness. 16 Dhanveer Singh is a formal witness as he had taken some sealed packet from Police Station to Forensic Science Laboratory, Jaipur. PW. 18 Ramphool Kharela is also a formal witness. He was a Sub-Inspector of P.S. Jalupura and had simply registered a case on the report of Harimohan Sharma. PW. 21 Narendra Singh is also a police officer who had investigated this case and PW. 17 Dr. Sumant Datta has conducted post-mortem on the body of deceased and prepared a post-mortem report. It is also argued that trial Court has convicted this accused for such heinous crime only on the basis of recoveries of one pair of shoes, pants and shirt, two almunium moulds and one cheque. It is also argued that all the witnesses relating to these recoveries have turned hostile. Recoveries of cheque, moulds of almunium, pants and shirt and one pair of shoes are not at all proved. 7. It is also argued that the cheque about which it is said that it was recovered on the information of accused also is in the name of the firm of the deceased and was issued on 10.12.1998 and was recovered on 06.07.1999. It is also argued that accused V.P. Suresh could not encash this cheque as it was in the name of deceased Rameshwar Dayal and company and it was not valid up to the date of its recovery. It is further argued on behalf of accused that prosecution has not at all proved the guilt against this appellant, therefore, he should be acquitted from all the charges. 8. Learned Public Prosecutor has supported the impugned Judgment of trial Court and argued that trial Court has rightly convicted the accused as mentioned above. 9. In this case, we would examine two things. Firstly, whether death of Rameshwar Dayal is natural or he was killed by someone and secondly, whether there is ample evidence to connect this accused V.P. Suresh appellant with this crime. So far as death of Rameshwar Dayal is concerned, PW. 17 Dr. Sumant Datta who conducted post-mortem on the body of deceased found many injuries on the person. He opined that all the injuries were ante-mortem in nature and his death was caused because of these injuries. Looking to the statement of Dr. So far as death of Rameshwar Dayal is concerned, PW. 17 Dr. Sumant Datta who conducted post-mortem on the body of deceased found many injuries on the person. He opined that all the injuries were ante-mortem in nature and his death was caused because of these injuries. Looking to the statement of Dr. Datta and post-mortem Exhibit P-23 it is fully proved that death of Rameshwar Dayal was not natural and he died because of injuries found on his person. 10. Now we come to the next point whether prosecution has produced sufficient evidence to connect accused appellant with the crime. In other words whether the prosecution has proved that the accused appellant V.P. Suresh has committed the murder of Rameshwar Dayal. Prosecution has secured conviction of this appellant only on the basis of recoveries of cheque, pants and shirt, one pair of shoes and two almunium moulds. Exhibit P-12 is the memo for the recovery of cheque. Both attesting witnesses of this Exhibit P-12, PW. 5 Shankar Singh and PW. 15 Vaid Ramanand have been produced by the prosecution but both the witnesses have turned hostile and have not supported the case of prosecution and have clearly stated that no cheque was recovered in their presence at the instance of the accused. In the same way, attesting witnesses of Exhibit P-17 which was relating to recovery of pants and shirt were PW. 10 Kanarma and PW. 19 Vishal Singh. Prosecution has produced both these witnesses but none of them has supported the prosecution case and have clearly stated that no pants or shirt has been recovered in their presence at the instance of appellant accused. In the same way PW. 11 Fazlu, PW. 12 Bheruram were attesting witnesses of Exhibit P-18 which was related to recovery of one pair of shoes. Both of them have also turned hostile and have clearly stated that no pair of shoes was recovered at the instance of accused in their presence. Same is the story of recovery of moulds of almunium. According to the prosecution two almunium moulds were sold by the accused V.P. Suresh to PW. 20 Rajendra Agrawal and those tow moulds of alumunium were recovered in the presence of PW. 13 Sohan Lal, PW. 14 Kailsah, all these three witnesses were produced by the prosecution and none of them supported the prosecution story. PW. According to the prosecution two almunium moulds were sold by the accused V.P. Suresh to PW. 20 Rajendra Agrawal and those tow moulds of alumunium were recovered in the presence of PW. 13 Sohan Lal, PW. 14 Kailsah, all these three witnesses were produced by the prosecution and none of them supported the prosecution story. PW. 20 Rajendra Kumar Agrawal has categorically stated that accused appellant has not sold any moulds of almunium to him and he also stated that no such moulds of almunium were recovered at the instance of the accused from his shop. PW. 13 Sohan Lal and PW. 14 Kailash have also stated that no almunium moulds were recovered in their presence at the instance of accused. In this way, all the 9 witnesses relating to the recoveries of cheque, pants and shirt, two almunium moulds and one pair of shoes have turned hostile and have not supported the prosecution story at all. Under these circumstances recovery of these above mentioned articles are not at all proved. So far as cheque is concerned, it was in the name of deceased Rameshwar Dayal and was issued on 10.12.1998 and alleged recovery of cheque was made in the month of July 1999. It is clear that on that date nobody could encash this cheque. 11. We are of the view that the Court must adopt a cautious approach if case is based purely on circumstantial evidence. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 12. When we examine the circumstantial evidence of this case in the light of above mentioned principle of law. We are of the view that even it is presumed that some pants and shirt, two moulds of almunium, one pair of shoes and one cheque were recovered on the information and at the instance of the appellant, even then this is not the sufficient evidence with which we may convict the accused for the offences under Sections 302, 303/34 and 201, IPC. We are also of the firm view that this appeal should be allowed and order of conviction and sentence passed by the trial Court against the appellant should be set aside. 13. We are also of the firm view that this appeal should be allowed and order of conviction and sentence passed by the trial Court against the appellant should be set aside. 13. For these foregoing discussions, we allow the appeal. The order of conviction and sentence recorded by the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Jaipur dated 06.01.2001 is set aside. The accused appellant V.P. Suresh is acquitted of the charges framed against him. He be released forthwith, if not required in any other case.