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2010 DIGILAW 885 (RAJ)

Kala v. State of Rajasthan

2010-04-22

C.M.TOTLA, GOVIND MATHUR

body2010
JUDGMENT 1. - By the judgment dated 8.9.2003, learned Additional Sessions Judge (Fast Track), Udaipur convicted the accused-appellant for the offences punishable under Sections 302 IPC and 307 Indian Panal Code The trial court accordingly awarded sentence as under : Section 302 IPC - Life Imprisonment with a fine of Rs. 5000/- and further to undergo six months rigorous imprisonment, in the event of default in payment of fine. Section 307 IPC - Seven years rigorous imprisonment with a fine of Rs. 1000/- and further to undergo three months' rigorous imprisonment, in the event of default in payment of fine. 2. Briefly stated, facts of the case are that PW-4 Deeta Ram submitted a written report (Ex.-P/5) at Police Station Bekariya, Distt. Udaipur on 10.12.2002 at 7:00 a.m. with assertion that on 9.12.2002 at about 8:00 p.m. Kala S/o Hansa Garasiya (accused-appellant) came to him and stated that when he reached at his hut, he found his wife Smt. Homi and daughter Manju killed by some miscreant and their bodies are relying at the spot. 3. On the basis of written report aforesaid, a case was lodged and investigation was initiated for commission of an offence punishable under Section 302 IPC. On 13.12.2002, PW-1 Bada submitted another report (Ex.-P/14) with assertion that on 10.2.2002, custody of an unnamed son of Kala was given to him in injured condition and during the course of treatment, the boy died on 13.12.2002. The report aforesaid was also included with the investigation already under going in pursuant to the report dated 10.12.2002. 4. After regular investigation, a charge-sheet was filed before the Court of Judicial Magistrate, Gogunda, Distt. Udaipur, however, the offence being Against the judgment dated 8.9.2003 passed by learned Additional Sessions Judge (Fast Track), Udaipur in Sessions Case No. 50/2003. exclusively triable by the court of Sessions, was committed to the learned Sessions Court, Udaipur and, then was transferred for adjudication to the court of learned Additional Sessions Judge (Fast Track), Udaipur. The accused appellant was charged for the commission of an offence punishable under Section 302 IPC and on denial of the same, he was tried. 5. The prosecution supported its case with the aid of fifteen witnesses and several documents exhibited to get their contents proved by the witnesses. The accused appellant was charged for the commission of an offence punishable under Section 302 IPC and on denial of the same, he was tried. 5. The prosecution supported its case with the aid of fifteen witnesses and several documents exhibited to get their contents proved by the witnesses. An opportunity was given to the accused-appellant, as per provisions of Section 313 Cr.P.C. to explain the circumstances and evidence available against him. He denied whatever adverse evidence was available and pleaded innocence. 6. The trial court on the basis of statements of Dr. Subeer Mitra (PW-11), who proved the postmortem reports (Ex.-P/29 and Ex.-P/30), reached at the conclusion that death of Smt. Homi and baby Manju was homicidal. 7. While relying upon recovery of blood stained 'kulhari' as per recovery memo Ex.-P/9 at the instance of accused and the statements of PW-9 Naniya, the trial court held the accused appellant guilty for commission of an offence under Section 302 IPC and on the basis of medical evidence that the unnamed boy was having an injury and he died due to lung infection also convicted the accused-appellant for commission of an offence punishable under Section 307 IPC. 8. In appeal, contention of the learned Amicus curiae is that the conviction is not at all supported by cogent and reliable evidence, thus, the judgment impugned deserves to be quashed. 9. We have considered the arguments advanced and also scrutinised the record available. 10. On the basis of an information given by the accused appellant as per Ex.-P/17, the Investigating Agency recovered the blood stained 'kulhari' as per recovery memo Ex.-P/9 in presence of Moti Ram (PW-7) and Anda Ram (PW-5) and the 'kulhari' so recovered was also sent alongwith certain other seized articles for their serological examination. The 'kulhari' and all other articles were found with blood stains of human origin, however, the blood group on 'kulhari' and other articles except Ex.2 (From B) could not be determined on remaining inconclusive. 11. It is pointed out by the learned counsel for the appellant that the recovery of 'kulhari' is of no consequence in view of the fact that PW-5 Anda Ram and PW-7 Moti Ram have not supported the prosecution case. 11. It is pointed out by the learned counsel for the appellant that the recovery of 'kulhari' is of no consequence in view of the fact that PW-5 Anda Ram and PW-7 Moti Ram have not supported the prosecution case. He has further submitted that the inference drawn by the trial court while relying upon the statements of PW-9 Naniya to the effect that Kala informed him that somebody has dissolved anti rabies drug in water end consequent to that his wife and daughter died. 12. On consideration of the arguments advanced, we are of the opinion that the recovery of 'kulhari' is not sufficient to base the conviction, in view of the fact that the prosecution case is not supported by motbirs PW-5 Anda Ram and PW-7 Mot Ram. Both the witnesses aforesaid were declared hostile. The same is the position with PW-9 Naniya, who too was declared hostile. Certainly, he has stated during cross-examination that Kala informed him about dissolving of some anti rabies drug in water and death of his wife and daughter consequent thereto, but merely on that count no inference could have been drawn regarding commission of murder of Smt. Homi and Manju by him. 13. It is well settled that a conviction is always required to be based on definite and cogent evidence, with unbreakable chain of circumstances leading to only one conclusion that is commission of offence by the accused and by none else. Such definite and cogent evidence in the instant case is not available. The prosecution story suffers from a reasonable doubt, thus, the accused- appellant Is entitled for extension of benefit of doubt. 14. Accordingly, this appeal is allowed. The judgement impugned dated 8.9.2003 passed by the learned Additional Sessions Judge (Fast Track), Udaipur in Sessions Case No.50/2003 is hereby set-aside. The conviction recorded at the sentence awarded under the judgment and order aforesaid too stands set-aside. The accused-appellant be released from judicial custody forthwith, if otherwise not required.Appeal Allowed. *******