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2011 DIGILAW 265 (RAJ)

Namit Sharma v. The State of Rajasthan

2011-02-04

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2011
JUDGMENT 1. - The three accused-appellants were convicted and sentenced by the learned Additional District and Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case No. 124/2003 vide judgment and order dated 23.11.2004. Out of these, accused appellant Namit Sharma was convicted for the offence under Section 302 read with Section 120-B and 109 IPC accused-appellants Chandra Prakash and Keshu Lal were convicted for the offence under Section 302 read with Section 120-B and 201 IPC. The accused-appellants were sentenced as under:- Name of the Accused-Appellant Offence Sentence Namit Sharma 302 read with Section 120-B and 109 IPC To undergo Life Imprisonment alongwith a fine of Rs. 5000/- and in default of payment of fine, further to undergo Simple Imprisonment for three months. Chandra Prakash and Keshu Lal 302 read with Section 120-B IPC To undergo Life Imprisonment alongwith a fine of Rs. 5000/- and in default of payment of fine, further to 201 IPC To undergo Rigorous Imprisonment for seven years alongwith a fine of Rs. 5000/- and in default of payment of fine, further to undergo Simple Imprisonment for three months. 2. Out of the three accused-appellants, appellants Namit Sharma and Chandra Prakash have made challenge to the judgment of conviction and order of sentence passed by the learned trial court by way of D.B. Criminal Jail Appeal No. 1168/2004 and the other appellant Keshu Lal has challenged the legality of the judgment of conviction and order of sentence passed by the learned trial court by filing D.B. Criminal Appeal No. 1172/2004. Both these appeals are being decided by this common judgment.3. The prosecution story in the nutshell is that on the basis of a telephonic information received on 17.05.2003 at the Police Station Naai, District Udaipur, regarding lying of a dead body of a person at the field of one Radha Krishan Gurjar at village Gorela, the Station House Officer alongwith other police officers reached the place of the incident which was on the way of Ambeshwar Mahadev inside 125 feet of the road. A dead body of unknown person was found there and it was also found that there was incised x-type injury on the body of the deceased, due to which brain of the deceased had come out of the head. Near the dead body one blood-stained shirt and a blood-stained iron pipe of two and half feet length was lying. A dead body of unknown person was found there and it was also found that there was incised x-type injury on the body of the deceased, due to which brain of the deceased had come out of the head. Near the dead body one blood-stained shirt and a blood-stained iron pipe of two and half feet length was lying. Blood was also found on the stones of the wall behind the dead body. On the basis of the observations made at the site, the police registered a case under Section 302 and 201 IPC and investigation commenced.4. During the course of the investigation, all the three accused-appellants were arrested and incriminating evidence was collected by the police as weapon of offence and other items. After due investigation a charge-sheet was filed in the court of Additional Chief Judicial Magistrate No. 3, Udaipur, from where the case was committed to the court of District and Sessions Judge, Udaipur and ultimately the case was transferred to the court of Additional District and Sessions Judge (Fast Track) No. 1, Udaipur for trial.5. The learned trial court framed charges against accused Namit Sharma for the offence under Section 120-B and 302 read with Section 109 IPC and against accused Chandra Prakash and Keshu Lal charges were framed under Section 302, 201 and 120-B IPC, to which all the accused-appellants did not plead guilty and claimed to be tried.6. To prove the charges framed by the trial court, the prosecution examined as many as 26 witnesses, namely, P.W.1 Narayan Singh, P.W.2 Kishan Singh, P.W.3 Bhanwar Singh, P.W.4 Prithviraj, P.W.5 Satish Kumar, P.W.6 Jodh Singh, P.W.7 Dr. Rahul Jain, P.W.8 Heer Singh, P.W.9 Ch rakant, P.W.10 Ramwati, P.W.11 Samundar Singh, P.W.12 Gajendra Singh, P.W.13 Devkishan, P.W.14 Shailendra, P.W.15 Radhakishan, P.W.16 Roshan Lal, P.W.17 Dayach , P.W.18 Bhoori Lal, P.W.19 Rajendra Singh, P.W.20 Kishan Lal, P.W.21 Awadhnath, P.W.22 Kishnaram, P.W.23 Rupindar Singh, P.W.24 Manju Chauhan, P.W.25 Vivek Singh and P.W.26 Babu Khan and produced 127 exhibits in support of the prosecution case. The incriminating evidence as adduced by the prosecution against the appellants was put to them for their explanation under Section 313 CrPC and the appellants did not produce any evidence in defence.7. The incriminating evidence as adduced by the prosecution against the appellants was put to them for their explanation under Section 313 CrPC and the appellants did not produce any evidence in defence.7. It was the case of the prosecution that two accused-appellants Chandra Prakash and Keshu Lal had committed the offence of murder by inflicting serious injuries upon the deceased and for which the conspiracy was hatched between all the three accused-appellants and in lieu of a sum of Rs. 60000/- to be received from accused Namit Sharma, the other two accused-appellants committed the murder of deceased Khadag Singh and further Namit Sharma also abetted the commission of offence under Section 302 IPC.8. It was a case based on circumstantial evidence as nobody had seen the commission of the offence, however, the son of deceased Chandrakant (P.W.9) last saw the deceased alive with accused-appellants Chandra Prakash and Keshu Lal while he was starting from his house in a car taxi. It was further recorded in the evidence that immediately after the arrest of all the accused persons, the weapon of offence, blood-stained cloths, NOC issued by the competent authority regarding a petrol pump were recovered at the instance of the accused in pursuance to the information recorded under Section 27 of the Indian Evidence Act. Further during the course of the investigation, the call details of the telephone alleged to be that of the accused and that of the deceased were also collected by the Investigating Officer and which was also considered.9. The learned trial court after considering the facts on the basis of the evidence recorded, held accused appellant Namit Sharma guilty for the commission of offence under Section 302 read with Section 120-B and 109 IPC and accused-appellants Chandra Prakash and Keshu Lal for the commission of offence under Section 302 read with Section 120- B and 201 IPC and awarded them the sentence as referred in the earlier para.10. The learned trial court had considered the fact that there were 24 injuries on the body of the deceased and the brain of the deceased had come out of the head due to the injury No. 1 and the injury No. 1 and 2 both were considered to be fatal. The learned trial court had considered the fact that there were 24 injuries on the body of the deceased and the brain of the deceased had come out of the head due to the injury No. 1 and the injury No. 1 and 2 both were considered to be fatal. The learned trial court further considered the evidence of P.W.6 Jodh Singh who deposed that he was the owner of the Indica car taxi bearing No. RJ-27-T-1631, which was used by the accused-appellants in commission of the offence and Prakash had brought that car. But regarding the other facts, this witness did not corroborate the prosecution story, therefore, he was declared hostile, but to the aforesaid extent his evidence was relied upon by the learned trial court. The learned trial court further considered the the evidence of P.W.9 Ch rakant, who had last seen his father alive with both accused-appellants Chandra Prakash and Keshu Lal and the learned trial court while relying upon the evidence of P.W.6 Jodh Singh and P.W.9 Chandrakant, was of the view that the chain of circumstances had been completed on the said basis against the accused-appellants and further on the basis of the recovery of the NOC issued by the competent authority, the learned trial court believed that accused-appellant Namit Sharma hatched a conspiracy with both the other accused-appellants to kill deceased Khadag Singh.11. Learned counsel for the accused-appellant Namit Sharma contended that the conviction of appellant Namit Sharma for the offence under Section 302 read with Section 120- B and 109 IPC cannot be sustained and the conclusion drawn by the learned trial court in para 18 of the judgment is not based on any evidence because neither appellant Namit Sharma was the beneficiary of the so-called NOC nor it has been proved by the prosecution that how he was connected with the petrol pump or the alleged NOC because the Investigating Officer has not examined any person including the District Magistrate, Udaipur and since Ex.P.86 and Ex.P.88 both bear the signatures of the District Magistrate, Udaipur and it was only the District Magistrate, Udaipur who could be the best witness to deny his signatures, whereas the prosecution examined P.W.19 Rajendra Singh Shekhawat who was the Additional District Magistrate, Udaipur at the relevant time, i.e. on 09.05.2003, and he deposed that Ex.P.86 and Ex.P.88 do not bear the signatures of the District Magistrate Udaipur, but it has not been deposed by him that who was the District Magistrate, Udaipur at the relevant time. He simply deposed that deceased Khadag Singh was the dealing Clerk for issuing the NOC for petrol pumps. In the cross-examination, P.W.19 Rajendra Singh deposed that a person named Praveen Ji of Ganganagar told him that Khadag Singh and one Patwari of Rishabhdev helped him in procuring the forged NOC, but the Investigating Officer never tried to examine this Praveen Ji so as to prove the fact that how Khadag Singh or the Patwari of Rishabhdev were involved in procuring the forged NOC of petrol pump. Learned counsel for accused appellant Namit Sharma further contended that simply by recovering a telephone instrument from the house of accused Namit Sharma and collecting the call details, it cannot be said that it was Namit Sharma who had made call to the deceased from his house and further there is no evidence of any conspiracy hatched by Namit Sharma with two other accused-appellants Chandra Prakash and Keshu Lal. He further contended that as per the disclosure memo of one of the accused, Rs. He further contended that as per the disclosure memo of one of the accused, Rs. 3000/- were paid by Namit Sharma, but no such amount was recovered by the Investigating Officer during the course of the investigation and thus, it is a totally false story created by the Investigating Officer, who intentionally did not examine Praveen Ji of Ganganagar and falsely implicated the present appellants. Further the learned counsel for accused-appellant Namit Sharma contended that no motive has been proved by the prosecution on the part of accused-appellant Namit Sharma for hatching the conspiracy.12. Learned counsel for the other two accused-appellants contended that the so-called evidence of P.W.9 Chandrakant regarding the fact that he saw his father last alive with accused-appellants Chandra Prakash and Keshu Lal is not reliable and trustworthy because in the site inspection memo it has not been mentioned that there was any light at the place where P.W.9 Chandrakant saw his father alive with the present appellants. Learned counsel for the appellants further contended that both the accused-appellants were not kept Baparda during the course of the investigation and as per the Ex.D.9, it appears that 'A' to 'B' portion was added later on by the Station House Officer Babu Khan of the Police Station Naai. Although this fact has not been admitted by P.W.26 Babu Khan, but writing on the Ex.D.9 at portion 'A' to 'B' clearly shows that it was added later on by the Investigating Officer to create a false document of this fact and therefore, when there is doubt regarding the fact that the Investigating Officer kept the accused-appellants Baparda, the identification of the two accused-appellants made by P.W.9 Chandrakant cannot be made basis for conviction of the present appellants, namely, Chandra Prakash and Keshu Lal. Further, the learned counsel for the accused-appellants contended that in the absence of evidence on record regarding the issuance of forged NOC by Khadag Singh or any overt at on the part of Khadag Singh for issuance of the forged NOC for petrol pump, it cannot be said that both the accused-appellants have any motive to kill deceased Khadag Singh and specifically in the absence of any evidence of conspiracy, the judgment of the learned trial court cannot be sustained and the conclusion drawn on the basis of the evidence available on record by the learned trial court cannot be maintained.13. On the other hand, learned Public Prosecutor made an effort to support the judgment delivered by the learned trial court whereby the accused-appellants were convicted. He submitted that the evidence was properly appreciated by the learned trial court and looking to the reasons assigned by the learned trial court, no interference in the judgment and order of the learned trial court is called for.14. We have heard the learned counsel for the parties, perused the relevant record and considered the submissions referred to herein above.15. Upon going through the judgment passed by the learned trial court and looking to the evidence adduced before the learned trial court, we are in agreement with the submissions made by learned counsel appearing for the appellants. Although it is a settled position of law that motive is not important in each and every case, however, even if we rely upon the statement made by the son of the deceased, none of the witness has deposed regarding any enmity between the accused-appellants and the deceased and in the absence of any motive in a case based only on the circumstantial evidence, it would not be just and proper to convict the accused-appellants, especially when there is no material to come to the conclusion that the accused-appellants had committed the offence. P.W.9 Chandrakant only deposed that he had seen two persons in the Indica car bearing No. RJ-27-T-1631 in which his father was also boarded, but after the lapse of a period of one month and ten days from the arrest of the accused-appellants, the identification parade was conducted by the Judicial Magistrate and in view of the additions made in the Ex.D.9 regarding keeping the accused Baparda, the identification parade as conducted during the course of the investigation does not inspire any faith.16. In our opinion, the so-called recovery of bloodstained cloths, bat, stone or any other weapon would not help the prosecution. The witnesses of recovery of Indica car P.W.1 Narayan Singh and P.W.2 Kishan Singh did not corroborate the evidence of the prosecution and were declared hostile. P.W.4 Prithviraj who is the witness of Ex.P.4 to Ex.P.10 had also not corroborated the prosecution story. P.W.6 Jodh Singh did not corroborate the evidence that he handed over the vehicle to Chandra Prakash, whereas he narrated that he handed over the vehicle to Prakash. P.W.4 Prithviraj who is the witness of Ex.P.4 to Ex.P.10 had also not corroborated the prosecution story. P.W.6 Jodh Singh did not corroborate the evidence that he handed over the vehicle to Chandra Prakash, whereas he narrated that he handed over the vehicle to Prakash. P.W.12 Gajendra Singh did not corroborate the prosecution story regarding using of STD phone from his shop. P.W.15 Radhakishan deposed that the police at the spot collected some articles, but what was ultimately done with those articles is not in his knowledge. P.W.20 Kishan Lal also did not corroborate the evidence of the recovery of phone preparation of the site inspection memo.17. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course it is not necessary that in every case motive of the accused should be proved, however, in the instant case where there is no eye-witness and where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind the commission of the offence of murder of the deceased. It was the case of the prosecution that a forged NOC was prepared by deceased Khadag Singh and when this fact came to the knowledge of accused-appellant Namit Sharma that the name of Khadag Singh has been identified by the concerned authorities that he helped in procuring the forged NOC, Namit Sharma conspired with the other two accused-appellants, namely, Chandra Prakash and Keshu Lal, agreeing to pay them Rs. 60000/- for killing Khadag Singh. It is an admitted fact that the accused-appellants are not the beneficiaries of the forged NOC for the petrol pump.18. It is a settled legal position that in a case based on circumstantial evidence, there must be a complete chain of circumstances which would lead to a conclusion that the accused was the only person who could have committed the offence and none else. In the instant case, there is nothing on the record to show that the accused-appellants had committed the offence and on the basis of the aforesaid material, in our opinion, it would be dangerous to convict the accused-appellants. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts. Moreover, all the circumstances must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. In the instant case, from the chain of the circumstances, it cannot be said that accused-appellant Namit Sharma in any way conspired or hatched any conspiracy with the other two accused-appellants. There is no evidence on record that accused Namit Sharma conspired with the two other accused to kill deceased Khadag Singh for the reason that the fact of forgery of the NOC was discovered by the office of District Magistrate, Udaipur, therefore, the conclusion drawn by the learned trial court cannot be sustained.19. In view of the discussion made above, in our opinion, the conclusion reached by the learned trial court is not correct on the basis of such scanty evidence which is practically no evidence at all in the eyes of law and the learned trial court could not have passed the judgment of conviction, therefore, we are of the view that the judgment of conviction passed against all the three accused-appellants in both the appeals is not justified.20. Accordingly, both the appeals are allowed and the impugned judgment and order dated 23.11.2004 passed by learned Additional District and Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case No. 124/2003 are quashed and set aside. Accused-appellants Namit Sharma S/o Harishch Sharma, Chandra Prakash S/o Gulabch and Keshu Lal S/o Amba Lal shall be released immediately if not required in any other case.21. However, before parting with the judgment, we are of the view that P.W.26 Babu Khan, the then Station House Officer of the Police Station Naai, District Udaipur, investigated the case in a very hasty manner so as to help any of the real culprits and created false evidence against the present appellants. However, before parting with the judgment, we are of the view that P.W.26 Babu Khan, the then Station House Officer of the Police Station Naai, District Udaipur, investigated the case in a very hasty manner so as to help any of the real culprits and created false evidence against the present appellants. As per the statement of P.W.19 Rajendra Singh Shekhawat, one person named Praveen Ji of Ganganagar informed him that two persons Khadag Singh and one patwari of Rishabhdev helped him in preparing and procuring the forged NOC, but why this Praveen Ji was not interrogated by the Investigating Officer is still a mystery and it is also not clear why the Investigating Officer P.W.26 Babu Khan did not interrogate the District Magistrate, Udaipur regarding the forged NOC. P.W.26 Babu Khan in his cross-examination admitted that he did not investigate further regarding the forged documents, which clearly shows that Babu Khan did not preformed his duties properly and intentionally did not try to bring the truth forward. We deprecate the manner in which P.W.26 Babu Khan acted as the Investigating Officer of this case. A copy of this judgment be sent to the Director General of Police for further necessary action.Both Appeals Allowed. *******