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2006 DIGILAW 1566 (RAJ)

Rajesh v. State of Rajasthan

2006-05-09

PREM SHANKAR ASOPA, SHIV KUMAR SHARMA

body2006
Judgment Shiv Kumar Sharma, J.-The appellant was put to trial before the learned Additional Sessions Judge Khetri District Jhunjhunu, who vide Judgment dated 24.04.2002 convicted the appellant under Section 302, IPC and sentenced him to suffer imprisonment for life and fine Rs. 1,000/-, in default to further suffer three months simple imprisonment. 2. The prosecution case as unfolded during trial is as under:-On 30.05.2000 the informant Bhagirath Mal (PW. 3) submitted a written report (Exhibit P-1) at Police Station Khetri Nagar with the averments that on 28.05.2000 around 10/10.30 PM while his nephew Gopal was sleeping on the roof of his house alongwith his cousins Kajod and Sushil, his neighbour Rajesh (appellant) called Gopal to come down and asked Gopal to accompany him. At the time of leaving the house Rajesh informed Kajod that they were going to quench their thirst. When Gopal did not return till the next day Morning, Kajod went to the house of Rajesh in search of Gopal, where mother of Rajesh informed that Rajesh had gone to village Gudha to meet his sister but on being enquired it was revealed that Rajesh did not go to village Gudha. On 30.05.2002 dead body of Gopal was found in a well. Police Station Khetri Nagar on that report registered a case for the offence under Section 302, IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, appellant was arrested and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Khetri District Jhunjhunu. Charge under Section 302, IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Section 313, CrPC, the appellant claimed innocence. No witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard the learned Counsel for the parties and carefully scrutinised the material on record. .4. In the absence of any eye-witness to prove its case the prosecution relied upon the following circumstances to connect the appellant with the offence alleged against him:- .(i) Death of Gopal was homicidal in nature. .(ii) Appellant was last seen in the company of deceased. .(iii) Appellant was not found in his house after the incident. .4. In the absence of any eye-witness to prove its case the prosecution relied upon the following circumstances to connect the appellant with the offence alleged against him:- .(i) Death of Gopal was homicidal in nature. .(ii) Appellant was last seen in the company of deceased. .(iii) Appellant was not found in his house after the incident. 5. It is well settled that where a case is founded on circumstantial evidence the inference of guilt can be drawn when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. The circumstances are required to be proved beyond reasonable doubt and should be closely knitted with the principal fact sought to be inferred from those circumstances. The circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. The onus is on the prosecution to prove that the chain of circumstances is complete. 6. On testing the facts of the instant case on the touchstone of settled principles indicated above, we notice that as per post-mortem report (Exhibit P-7) the deceased received following injuries:-“1. Abrasion 5 x 3cm. on right side of forehead, above right eye-brow, 2. Abrasion 6 x 3cm. on medial surface of left foot below big toe, 3. Abrasion 3 x 0.5cm. on planter surface of bit toe of left foot. Brain and its membranes were found congested. In the opinion of Dr. B.D. Sharma (PW. 9), who conducted autopsy on the dead body, the cause of death was asphyxia due to combined effect of injury to left side of chest and lung and drowning. In the cross-examination the autopsy Surgeon deposed that the injuries could be caused on account of fall on the hard surface. He further stated that membranes of brain could be congested by consuming alcohol. From the testimony of Dr. B.D. Sharma it is evident that death of Gopal could have been either homicidal or accidental. 7. In order to establish that deceased was last seen in the company of appellant the prosecution examined Bhagirath Mal (PW. 3) and Kajod (PW. 1). In his deposition Bhagirath Mal (PW. From the testimony of Dr. B.D. Sharma it is evident that death of Gopal could have been either homicidal or accidental. 7. In order to establish that deceased was last seen in the company of appellant the prosecution examined Bhagirath Mal (PW. 3) and Kajod (PW. 1). In his deposition Bhagirath Mal (PW. 3) who is the uncle of deceased, stated that while deceased was relaxing around 10 PM on 28.05.2000, the appellant came to him and took the deceased with him on the pretext that they were going to drink water and thereafter deceased did not return back. Bhagirath Mal then went to the house of the appellant where he got the information that appellant had gone to the house of his sister but in fact the appellant did not go to his sisters house. On May 30, dead body of deceased was found lying in the well. Testimony of Bhagirath Mal gets corroboration from the evidence of Kajod (PW. 1) who is the cousin of the deceased. In the cross-examination Kajod however stated that well in which the dead body of deceased was found, was only 25 steps away from the place where the deceased was sleeping. It is on the basis of evidence of these two witnesses that the learned trial Court based its finding. 8. In State of U.P. vs. Satish, 2005 (3) SCC 114 , their Lordships of Supreme Court had occasion to consider “last seen theory” and it was indicated as under:- [Para 22] “The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.” 9. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.” 9. In Lakhan Pal vs. State, AIR 1979 SC 1620 , it was propounded by Honble Supreme Court that the mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased. 10. Delhi High Court in Virendra Kumar vs. State, 1996 CrLR 231, held that circumstances of last seen together alone would not be sufficient to bring home the offence to the accused particularly when there is not proof of motive. 11. In the instant case as already noticed, the Autopsy Surgeon deposed that cause of death of the deceased was asphyxia due to combined effect of injury to left side of chest and lung and drowning and the injuries sustained by the deceased could be caused by a fall on the hard surface. It was further stated that the brain and its membranes of the deceased that were found congested, could be the result of consuming alcohol. From the testimony of Autopsy Surgeon two views are possible one indicating that death could be homicidal and the other suggesting that the death could be accidental. 12. The Honble Supreme Court in Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842 , observed that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the later view favourable to the accused. 13. On a close look at the impugned Judgment of the learned trial Court we find that the appellant has been convicted and sentenced on the basis of suspicion. It appears from the material on record that the appellant and the deceased had been the close friends and that is why at 10.30 PM the deceased agreed to accompany the appellant for the purpose of quenching thirst. The words “Drinking water” appear to have implied “Consuming liquor”. It appears from the material on record that the appellant and the deceased had been the close friends and that is why at 10.30 PM the deceased agreed to accompany the appellant for the purpose of quenching thirst. The words “Drinking water” appear to have implied “Consuming liquor”. From the evidence of Bhagirath Mal and Kajod it is evident that deceased after taking meals was relaxing and it does not appear from the evidence that there was any scarcity of water in the house. In such a situation the possibility that the deceased while sitting on the well had consumed liquor and accidentally fell down into the well. 14. Suspicion, however, grave it may be, cannot take the place of proof . In the instant case there can be no doubt that the circumstances raise a serious suspicion against the appellant, the medical evidence shows that death of deceased could be accidental and that being the position the benefit of doubt must go to the appellant. In the absence of legal proof of a crime there can be no legal criminality. 15. The prosecution, in our opinion, is not able to establish that the chain of circumstances is complete. The circumstances are not consistent with the hypothesis of the guilt of the appellant and inconsistent with his innocence. 16. For these reasons, we allow the appeal and set aside the impugned conviction and sentence awarded by learned Additional Sessions Judge Khetri District Jhunjhnun vide Judgment dated 24.04.2002. We acquit the appellant of the charge under Section 302, IPC. The appellant Rajesh, who is in jail shall be set at liberty forthwith if not required to be detained in any other case.