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2009 DIGILAW 2132 (RAJ)

Bholu Ram v. State of Rajasthan

2009-10-12

A.M.KAPADIA, DEO NARAYAN THANVI

body2009
JUDGMENT 1. - By this instant appeal, accused appellants Bholu Ram and Ghent @ Mandar Singh have challenged their conviction and sentences recorded under Sections 450 and 302 read with Sections 34 and 382 read with Section 34 I.P.C. by learned Additional Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar in Sessions Case No. 1 of 2003 vide judgment dated 22.2.2003. 2. The facts leading to the appeal are that on 16.5.2002 one Pradhan Chand filed a report Ex.P-1 at Police Station Anoopgarh stating therein, inter alia, that his Dhani is situated 5 bighas away from the Dhani of deceased Harnam Singh at Chak-9-k (B). On that day at about 3.00 pm when he did not see Harnam Singh, he called Jaswant Singh and Pooran Singh and went to the Dhani of Harnam Singh and found that the door was closed. He opened it and noticed that near the coat, dead body of Harnam Singh was lying. His both legs, throat and mouth were tied and there were injuries on his body and his tractor was not found in the garage. According to the F.I.R., it appears that some unknown person might have committed murder of Harnam Singh and took away his tractor. 3. Upon this report, Police registered a case under Sections 302 and 382 I.P.C. and commenced investigation. Police reached on the spot and arranged autopsy of the dead body in which cause of death was shown to be asphyxia due to strangulation. Recovered cloths of the deceased were sent for chemical examination. During the investigation, accused Bholu Ram and Mandar Singh were arrested and on the basis of information furnished by them under Section 27 of the Evidence Act tractor and Jindari (trolley) were recovered. After investigation, police filed challan against both the accused appellants under Sections 302, 450 and 382 read with Section 34 I.P.C. in the Court of Judicial Magistrate, Anoopgarh, who committed the case to the Court of Additional Sessions Judge (Fast Track), Anoopgarh. After hearing the arguments on charge, both the accused were charged to which they pleaded not guilty. The prosecution examined 16 witnesses. Statements of accused were recorded under Section 313 Cr.P.C. They led no evidence. After hearing the arguments, learned trial Judge convicted and sentenced the accused appellants as above. 4. After hearing the arguments on charge, both the accused were charged to which they pleaded not guilty. The prosecution examined 16 witnesses. Statements of accused were recorded under Section 313 Cr.P.C. They led no evidence. After hearing the arguments, learned trial Judge convicted and sentenced the accused appellants as above. 4. We have heard the arguments of the learned counsel for the accused appellants as well as learned Public Prosecutor and also re-appreciated the evidence on record. 5. It is contented by learned counsel for the accused appellant that it is a case of no evidence as there is neither any direct evidence to support the prosecution case nor the circumstantial evidence on the basis of which the conviction has been recorded are proved. Learned trial Court has recorded the conviction on the basis of hypothesis by evidence, especially when no previous enmity or motive are established. 6. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 7. Having re-scrutinized the evidence on record, it is clear that this case is based on evidence of no .eye-witness. The whole case is based on the circumstantial evidence of recovery, last seen of the accused on the tractor and previous enmity on account of Holi with regard to demand of tractor. 8. First we take up the circumstance of recovery. According to the prosecution story, accused Bholu Ram and Mandar Singh were arrested vide Ex.P-18 and P-19 and on the basis of information furnished by accused Bholu Ram Ex.P-54, tractor bearing No. RJ 13 2R 3287 was recovered vide Ex.P-14. Likewise, on the basis of the information furnished by accused Mandar Singh Ex.P-35, Jindri (trolley) was recovered vide Ex.P- 15. Motbirs of the recovery memo are PW-10 Pawan Kumar and PW-11 Narendra Kumar and Recovery Officer is PW-15 Vipin Sharma. The site plan of the recovery is Ex.P-16. The site plan Ex.P-16 shows that the entire place of recovery at Sardarpura Bika from where recovery has been shown from place "A" and "B" is open place from all sides and as per the Investigating Officer, Vipin Sharma PW-15, when he made the recovery, both the witnesses namely, Pawan Kumar and Narendra Kumar were searching for tractor at Rohi (Jungle) Sardarpura Bika which is open place. According to him, he did not deem it proper to call any independent witness of village Sardarpura Bika as motbir because Narendra Kumar was not an interested witness but Pawan Kumar was of course the son of the deceased. Though both these witnesses are not hostile, but if their evidence is looked into in the light of the cross-examination, their statements are improved versions and both are interested witnesses. As PW-10 Pawan Kumanr is son of the deceased Hamam Singh and in his police statement Ex.D-5, he has not stated with regard to the demand of tractor by the accused from his father. Pawan Kumar has stated in his cross-examination that they used to go to the Police Station and the Police asked them to accompany the Police to identify the tractor and Jindri and then they went to identify the same in the police jeep. This witness has further stated that the police told him that they have traced out the tractor and Jindri and he has to identify the same in the village Sardarpura Bika. With regard to the enmity of Holi, he did not narrate to anyone of the villagers. Likewise, PW-11 Narendra Kumar, who is another witness of recovery has stated that he went with Pawan Kumar to escort the police party to village Ghamdiya and Sardarpura, where police told that the accused and tractor are lying there. This witness has further stated that he paid Rs. 25000/- to the deceased Harnam Singh when his tractor was being attached by the bank. This evidence goes to show that both the witnesses of recovery are interested witnesses as Pawan Kumar is son of the deceased and Narendra Kumare financed Rs. 25000/- to the deceased for tractor and they escorted the police party who assured them regarding arrested of the accused and recovery of the tractor. In our opinion, such type of evidence cannot be regarded as admissible evidence of recovery. On the contrary, in this case the fact of recovery was already disclosed before recovery and such recovery is his by Section 27 of the Evidence Act and is not admissible. 9. In our opinion, such type of evidence cannot be regarded as admissible evidence of recovery. On the contrary, in this case the fact of recovery was already disclosed before recovery and such recovery is his by Section 27 of the Evidence Act and is not admissible. 9. The next ground for conviction as recorded by the learned trial Judge is with regard to the circumstance of finding blood as per the F.S.L. Report Ex.P- 37 on soil, bad-sheet, Safa, Kachha etc., but in the absence of blood group of these articles which belonged to the deceased, it cannot be believed that the accused are responsible for committing murder of the deceased Harnam Singh because there is no recovery of blood-stained articles at the instance of the accused having the same blood group as that of the recovered articles of the deceased. 10. The last ground on the basis of which the conviction has been recorded by the learned trial Court is the evidence of Darshan Singh PW-5, who has stated that on 15.5.2002, he saw the tractor and Jindri of Harnam Singh being driven by the accused Bholu Ram and accused Ghent @ Mandar Singh was sitting on the mudguard and the dog of Harnam Singh was following. Next day he came to know that Harnam Singh has been killed and his tractor has been stolen. But in our opinion, the evidence of this witness is also not reliable because he has improved his version from the police statement Ex.D-3 as he did not disclose the aforesaid fact in the police statement Ex.D-3 recorded on 18.5.2002 as stated by him in the Court, therefore, the testimony of Darshan Singh is also contradictory. 11. The above appreciation of evidence goes to show that the prosecution has not been able to establish the entire chain of evidence which is required to establish the charge based on circumstantial evidence. There is neither any motive nor any strong enmity whereby any inference can be drawn on the basis of cognate and reliable evidence that the accused were the only culprit who committed murder of the deceased Harnam Singh. In the absence of it, we are unable to subscribe with the finding of guilt arrived at by the learned trial Court. 12. In the absence of it, we are unable to subscribe with the finding of guilt arrived at by the learned trial Court. 12. Consequently, we allow this appeal and set aside the judgment dated 22.2.2003 of the learned Additional Sessions Judge (Fast Track), Anoopgarh convicting both the accused appellants under Sections 450 and 302 read with Sections 34 and 382 read with Section 34 I.P.C. and sentencing them as mentioned above. We accordingly acquit both the accused appellants for the charges levelled against them. Both the accused appellants are on bail, their bail bonds stand cancelled.Appeal allowed. *******