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2014 DIGILAW 1898 (RAJ)

Nand Lal v. State of Raj.

2014-11-25

KANWALJIT SINGH AHLUWALIA, R.S.CHAUHAN

body2014
Hon'ble CHAUHAN, J.— By this common judgment D.B. Criminal (Jail) Appeal No. 1160/2006 preferred by Nand Lal, and D.B. Criminal (Jail) Appeal No. 1151/2006 instituted by Navratan @ Noratmal shall be decided together. 2. Both the appellants were tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur for offences under Sections 302 and 394/34 IPC. The trial court vide the impugned judgment dated 15th April, 2005 held both the appellants guilty of the offences punishable under Sections 302/34 and 394/34 IPC. Having convicted the appellants for the said offences, vide a separate order of even date, appellants were sentenced as under:- (i) for offence under Section 302/34 IPC:- Life imprisonment and to pay a fine of Rs. 100/- and in default thereof, to further undergo three months rigorous imprisonment. (ii) For offence under Section 394/34 IPC:- Ten years rigorous imprisonment and to pay a fine of Rs. 100/- and in default thereof, to further undergo three months rigorous imprisonment. Both the sentences were ordered to run concurrently. 3. Aggrieved against the conviction and judgment, the appellants have instituted separate appeals through jail. Criminal litigation was set into motion on presentation of written complaint (Ex.P.22) by Manohar (PW.11) before Piara Singh (PW.18), SHO Police Station, Murlipura Distt. Jaipur City, Jaipur. In the written complaint, Manohar averred that his elder mother Bidami Devi W/o Suvalal, aged about 65 years, from last 15/20 years was residing in House No. A 152 at Murlipura Scheme. She was residing alone. She was having a vend at Murlipura Circle for selling garlands and Jowar, i.e. the feed for the birds. On the morning of 9th August, 2003, complainant was informed by Maliram (PW.2) that his mother was not coming for selling Jowar (sorghum) for last two days. Complainant went to her room and found that the doors of the room were lying open. She was lying on a cot. Complainant alongwith his family members and residents of the Mohallaha (locality) made arrangements for cremation of Bidami and when they lifted her body from the cot, it was found that both the feet of the dead body were chopped off, her neck was strangulated with a Ludgi which was tightly tide over her neck. She was lying on a cot. Complainant alongwith his family members and residents of the Mohallaha (locality) made arrangements for cremation of Bidami and when they lifted her body from the cot, it was found that both the feet of the dead body were chopped off, her neck was strangulated with a Ludgi which was tightly tide over her neck. It was stated in the complainant that somebody killed his elder mother (Badi Maa) and from the house, two silver anklets (silver Kara worn on feet) and the jewelery Mandlaya (worn in the neck) and a locket containing murti (idol) of Hanuman Ji were missing; they were made of gold; besides the above articles, one nose pin was also missing and the goods of the house were lying scattered. The complainant requested that legal action be taken against the guilty and case be registered. 4. The above said complaint was presented on 9th August, 2003 at 3.50 P.M. and on the basis thereof, FIR was registered at Police Station, Murlipura Distt. Jaipur on 9th August, 2003 at 4.15 P.M. 5. The above said FIR was investigated. During investigation both the appellants were nominated as accused and were sent for the trial. 6. The report of investigation under Section 173(3) Cr.P.C. was filed in the Court of concerned Magistrate. The said report alongwith the accused were committed to Court of Sessions and the trial was entrusted to Additional Sessions Judge (Fast Track) No. 1 Jaipur City, Jaipur. Both the appellants were charged for offence under Section 302/34 and Section 394/34 IPC. 7. The first charge stated that on the intervening night of 7th and 8th August, 2003 in plot No.A 152, murlipura Jaipur, the complainant saw that both the feet of Bidami Devi were chopped off and neck was strangulated by tying Lungdi around her neck and thus, with common intention, present appellants had committed offence of murder, making them liable substantively for offence under Section 302 IPC or in alternate for offence under Section 302/34 IPC. For removal of ornaments of Bidami Devi, appellants were charged for offence under Section 394 IPC. 8. Both the appellants pleaded not guilty and claimed trial. 9. Prosecution commenced its evidence. 10. Kishan Chand (PW-1) had attested inquest proceedings (Ex.P/1). He stated that he alongwith Dhanna Lal had gone to Kanvatiya Hospital where dead body was handed over to them. For removal of ornaments of Bidami Devi, appellants were charged for offence under Section 394 IPC. 8. Both the appellants pleaded not guilty and claimed trial. 9. Prosecution commenced its evidence. 10. Kishan Chand (PW-1) had attested inquest proceedings (Ex.P/1). He stated that he alongwith Dhanna Lal had gone to Kanvatiya Hospital where dead body was handed over to them. This witness in cross-examination had stated that he plys Rikshaw and Bidami was cremated by three persons. He further stated that he was accompanied by Dhanna Lal and Vinod at the time of cremation. 11. Maliram (PW.2) stated that he is having a Pan vend at Murlipura Main Circle. On the corner of the circle, Bidami used to sell garlands and Jowar. She used to come daily at around 5-6 A.M. and used to return to her house at 10-11 P.M. She used to take liquor. She was not having any child. She had adopted Dhannaram, son of her husband's younger brother (devar). Dhannaram used to reside in the old Basti and visit her often. A person Gyarsi used to come at her house. Gyarsi was a labourer, engaged in digging of pits. He used to do small errands (domestic chore) for the old lady and bring liquor for her. On 7th August, 2003, Bidami fell ill and informed Maliram (PW.2) that she is going to her house. This witness advised her to take medicine and gave Rs. 10/- to her. She left alongwith Gyarsa. Both of them had gone towards her home. On 8th August, 2003 Bidami had not come to her shop. On 9th August, 2003 at about 8-9 PM, Kamlesh egg-seller came did informed that the house of Bidami is lying open and since she is ailing, medicine be provided to her. Upon this, Maliram (PW.2), witness, Kamlesh (PW. 13), Rajesh Dhobi and Mahesh had gone to the house of the Bidami. Her room was lying open. The room was emitting foul smell. Witness assumed that Bidami had died and they came back to the circle, and started preparing for the cremation. Dhanna (PW.5) was called through Kamlesh (PW. 13). The reached at Bidami's house. They found that both her feet were chopped off; they were lying separately on floor. She was strangulated with a Lugdi. They came to the police station and informed the police; the police reached the spot. Dhanna (PW.5) was called through Kamlesh (PW. 13). The reached at Bidami's house. They found that both her feet were chopped off; they were lying separately on floor. She was strangulated with a Lugdi. They came to the police station and informed the police; the police reached the spot. They learnt that on the night of 7th of August, 2003 Gyarsa was peeling off garlic outside her house. Silver anklets worn by Bidami, gold necklace and Patdi of Hanumanji were missing. Police had made site plan of the spot, Ex. P/3, and also Ex. P/2 regarding the condition of the dead body of deceased Bidami. Inquest was also prepared. This witness had attested documents regarding recovery affected from the spot. Police had taken pieces of floor on which the blood was lying, into the possession. They had also taken one bone into possession from the spot. One piece of wood was also recovered. Two half pieces of Beedi were also recovered. One green cloth and two white pieces of cloth were also taken possession. Police on 10th August, 2003 from Kanvatiya Hospital had taken Partchjat, Lugdi, Petticoat and Blouse of Bidami into possession, they were blood stained. It is stated that on 27th August, 2003 after 23 days of the occurrence, police had brought accused Nanda. This witness was also called. Nanda took police to the place of occurrence and got identified the place where the murder was committed. This accused further stated that one Bidami was murdered. At the time of murder, he was accompanied by Navratan. Memo of the identification of spot (Ex. /P. 8) was also prepared. Police had also recovered one Favda (Spade), on the disclosure statement made by accused Nanda, from beneath jute bags under a tin shed. The said weapon was taken into possession vide Ex.P/9 and Ex/10. After one month of the occurrence, police came alongwith Navratan. Navratan also identified the place of occurrence; the memo of the identification of the spot, (Exhibit P/11) was prepared. Navratan also informed that he had thrown a knife with which the murder was committed near the Thadi of Goras Bhandar. He got the place identified as Ex. P/12. From the house of Navratan one locket alognwith string were recovered. Witness then stated that string was of gold and Patdi was made of silver. Navratan also informed that he had thrown a knife with which the murder was committed near the Thadi of Goras Bhandar. He got the place identified as Ex. P/12. From the house of Navratan one locket alognwith string were recovered. Witness then stated that string was of gold and Patdi was made of silver. Both the goods were recovered from the house of Navratan which was on rent with him. Memo of recovery (P/18) was prepared; the same was attested by the witness alongwith the site plan (Exhibit P/14) of place of recovery. In cross-examination, this witness further stated that he came to know the accused after the recovery was affected. This witness further identified Favda (spade) as article 4, lugdi as article 5, Petticoat as article 6 and blouse as article 7. He further identified the Mandla (necklace) article 2, Patadi, article 3 which were recovered from the house of accused, Navratan. He also identified various articles which were recovered from the house of the deceased. This witness further stated that Silver Kada's were having no mark of identity and they were also recovered from the house of Navratan. This witness further stated that Navratan was brought by the police after 20-25 days of the occurrence. However, this witness could not specifi-cally tell as to when Navratan was brought to police station or to the place of the occurrence. He further stated that knife was recovered in his presence. 12. Vinod Bansal (PW.3) had also attested the inquest report. 13. Parsaram (PW.4) stated that he knew Bidami Devi who was murdered. Bidami used to take liquor. On 7th August 2003 at about 6.00 P.M. he had gone to purchase vegetables and found that Badami Devi was sitting alongwith two persons. The said two person were Nandu and Navratan. They were taking liquor along with Bidami Devi. When they were taking liquor, he had also gone there. This witness stated that they were taking the liquor at vend of Bidami. Later, he alongwith Navratan, Nandu had gone to the house of Bidami Devi. Nanda had brought the chicken. Nanda had gone to purchase grocery goods. Navratan had taken his cycle to bring a pouch of liquor. Navratan and Nandu were consuming less liquor, but were making Bidami Devi consume more liquor. Later, he alongwith Navratan, Nandu had gone to the house of Bidami Devi. Nanda had brought the chicken. Nanda had gone to purchase grocery goods. Navratan had taken his cycle to bring a pouch of liquor. Navratan and Nandu were consuming less liquor, but were making Bidami Devi consume more liquor. Nanda had cooked meat, while witness was leaving, Bidami asked her to take meals, witness had also taken meals there. Nandu and Navratan remained with Bidami. This witness had left the spot at 8 P.M. Another lame person (langda) also came there and from him a pouch of liquor was purchased. When the lame person brought pouch of liquor, at that time, this witness was peeling garlic. After leaving Bidami, Nanda and Navratan at spot, this witness left them at about 9.00 P.M. Two days later, he learnt that Bidami had died. After that, he had not seen Navratan and Nandu; he made his statement under Section 164 Cr.P.C. and said statement was exhibited as Ex.P/16. This witness in Court identified Nandlal and Navratan as one who were sitting with the deceased on the night of the occurrence. In cross-examination this witness admitted that Bidami after consuming liquor used to give abuses. 14. Dhanna (PW.5) proved lodging of the report (Ex.P/22), and attestation of inquest proceedings Ex. P.4 and also recovery of articles from the spot. He also identified silver and gold ornaments. In cross-examination this witness stated that articles were not having blood stains. He further stated that it is possible that anklets may belong to somebody else and they were not of Bidami Devi. Similarly this witness stated that he cannot tell that Mandlays, Patdi and Kara were of the Bidami Devi or not. Later, it was stated by the witness that Mandlaya, Patdi and Kara's were of the Bidami Devi. This witness further stated that in the room, utensils Gait, Favadi and dantali were also lying. This witness stated that Favda (spade) was lying since her mother was earlier working in home guard. This witness further stated that he cannot tell Favda, Gaita and Dantali were Bidami Devi's or not. 15. Ramesh (PW. 6) stated on 27th August, 2003 in his presence, Nandlal had not recovered any jeep. This witness denied that he knew Nand Lal. This witness was declared hostile and was cross-examined by the learned Public Prosecutor. 16. Kanta Prasad Sharma (PW. 15. Ramesh (PW. 6) stated on 27th August, 2003 in his presence, Nandlal had not recovered any jeep. This witness denied that he knew Nand Lal. This witness was declared hostile and was cross-examined by the learned Public Prosecutor. 16. Kanta Prasad Sharma (PW. 7) stated that on 9th August, 2013 he was posted as Head Constable and investigation was conducted by Pyare Singh, SHO; on 5th September, 2013 SHO, Police Station, Murlipura had arrested Navratan@ Noratan accused present in Court. 17. Vinod (PW.8) had attested the inquest Ex. P/4. 18. Jagmohan Singh (PW.9) stated that on 5th September, 2003 at about 6.30 P.M. SHO, Piara Singh of Police Station Murlipura had arrested Navratan @ Noratmal vide arrest memo Ex. P/23. 19. Padam Singh (PW.10) Head Constable stated that on 30th August, 2003 he was informed by the SHO that accused Nandlal intended to get anklets of silver recovered from appellant. He had accompanied SHO, SI Omprakash in government vehicle to Maruti Jeep Factory. On the disclosure made by Nandlal, he got recovered silver anklets weighing about 500-600 grams. At that time, the accused had stated that after cutting off the feet of Bidami Devi, he had taken these anklets. Recovery memo Ex.P/24 and Ex.P/25 were also prepared. In the cross-examination this witness stated that he is not aware from where Nandlal was arrested. Further this witness stated that he is unaware of the place where Nandlal and Navratan were staying in the Mahapura area. 20. Manohar (PW.11), the first informant, had presented the written complaint Ex. P/22. He attested various memos regarding recoveries affected from the spot, and had also handed over the photographs of deceased and had also given details of the ornaments. This witness had identified silver anklets as article P/1 and Mandaliya, article P/2 and Patadi Article-3. 21. Dharmdash (PW.12) stated that on 9th August, 2003 he alongwith Rajesh, Maliram and Kamlesh had gone to the house of Bidami Devi where she was found dead. This witness further stated that on 7th August, 2003, at about 6.00 P.M Bidami had come to his shop to purchase Gutka, at that time, Gyarsa was accompanying her. 22. Kamlesh (PW.13) stated that he had visited the house of the Bidami Devi on the day she was found murdered. 23. On 10th August, 2003 at 11.00 A.M., Dr. This witness further stated that on 7th August, 2003, at about 6.00 P.M Bidami had come to his shop to purchase Gutka, at that time, Gyarsa was accompanying her. 22. Kamlesh (PW.13) stated that he had visited the house of the Bidami Devi on the day she was found murdered. 23. On 10th August, 2003 at 11.00 A.M., Dr. M.D. Quareshi (PW.14) being a member of the Medical Board, conducted the autopsy of the dead body of Bidami Devi. Details of medical evidence shall be noted by us later. This witness however, stated that article 23, knife, cannot be used for cutting off, and with the same knife, the feet bone cannot be chopped off. 24. Harirarayan Jat (PW.15) stated that he is a disabled person. He used to sell pouches of liquor. On 7th August, 2003 he had gone to the Circle at about 5.30 P.M. At that time Navratan and Nandu were sitting alongwith Bidami. About 6.00 P.M. when he had gone to wards the house of Bidami Devi, he saw Navratan and Nandu were sitting alongwith Bidami Devi and Gyarsa were peeling garlic outside her house. He stopped. Then, Nandu came outside the house and demanded one pouch of liquor. This witness had seen Navratan and Nandu in the house of Bidami Devi taking liquor with her. 25. Hanuman Prasad (PW.16) stated that on 18th September, 2003 he had deposited 13 sealed packets alongwith letter of Superintendent of Police in the office of forensic Science Laboratory. After depositing the articles, he had handed over receipt P/29 to the Station House Officer, Murlipura. 26. Mahadev (PW. 17) stated that on 27th August, 2003, he was posted as a Constable in Police Station Murlipura and vide exhibit P/30, in his presence Nanda was arrested by SHO, Police Station, Piara Singh. On 28th August, 2003 Nand got recovered one knife from Madhuvan Sweet Misthan Bhandar which was situated at 200 feet road. 27. Piara Singh (PW.18), the Investigating Officer, proved various facets of the investigation. 28. Prem Singh (PW.19) on the asking of police on 9th August, 2003 had taken photographs of the deceased. This witness proved photographs Ex. P/19 to 21 alongwith negatives Ex. P/19 A to 21-A. 29. Babulal (PW.20) had attested various memos regarding recovery of articles, taken into possession from the place of occurrence. 30. Om prakash (PW.21) proved registration of formal FIR. 31. This witness proved photographs Ex. P/19 to 21 alongwith negatives Ex. P/19 A to 21-A. 29. Babulal (PW.20) had attested various memos regarding recovery of articles, taken into possession from the place of occurrence. 30. Om prakash (PW.21) proved registration of formal FIR. 31. Sunil Kumar Yadav (PW.22) on 10th September, 2003 was posted as Judicial Magistrate, No. 21, Jaipur City. He had recorded statement of Gyarsa @ Parsaram under Section 164 Cr.P.C. and had also carried identification of ornaments. It is stated that the ornaments were identified by Dhanna Lal. This witness rightly identified the silver anklets. This witness proved identification proceedings as P/17. This witness further stated gold, Mangalaya and Patdi were identified by the witness. 32. Thereafter, the prosecution evidence was closed and statement of the accused under Section 313 Cr.P.C. were recorded. All incriminating evidence was put to the accused. They denied the same and pleased innocence. No witness was examined in defence. 33. We have taken note of the prosecution evidence. It has emerged in evidence that Bidami Devi, aged 66-70 years, was living along as her husband had expired and she was having no child. At Murlipura Circle near shop of Maliram (PW. 2), she by putting a wooden Plank (Takhta) on the floor, was selling garlands and Jowar which people use to buy from her and throw on the ground to feed the birds. As per Maliram (PW. 2), on 7.8.2003 in the evening she left Murlipura by informing him that she is having fever. It has come in evidence of various witnesses that from evening hours till late night of 7.8.2003, Bidami Devi was seen by the witnesses alongwith the accused. On 9.8.2003 in morning, Bidami Devi was found dead while she was lying on her cot. Her silver and gold ornaments were missing. In nutshell, above is the story unfolded by the prosecution witnesses to secure conviction of the appellants. Thus, the case of the prosecution revolves around on the following three circumstances:- (a). evidence of accused-appellants last seen with the deceased; (b). recovery of weapon knife (Ex. P.23) and fawda (P. 4) from accused-appellant, Nandlal @ Nanda; (c). identification of place where Navratan @ Noratmal had allegedly thrown the knife; (d) recovery of silver anklets weighing 500-600 gms. Thus, the case of the prosecution revolves around on the following three circumstances:- (a). evidence of accused-appellants last seen with the deceased; (b). recovery of weapon knife (Ex. P.23) and fawda (P. 4) from accused-appellant, Nandlal @ Nanda; (c). identification of place where Navratan @ Noratmal had allegedly thrown the knife; (d) recovery of silver anklets weighing 500-600 gms. Worn by the deceased, at instance of the accused Nandlal @ Nanda and recovery of necklace, i.e. gold Mandla and silver Patadi having gold plating belonging to deceased from accused Navratan @ Noratmal and identification of same by the witnesses. 34. We shall first consider evidence of last seen. Last Seen Evidence Maliram (PW.2) stated that near his shop, Bidami Devi used to sell garlands and Jowar. On 7.8.2003 she informed the witness that she is having fever and is going to her house. At that time she was accompanied by Gyarsa and both left towards the house of deceased Bidami Devi. On 8.8.2003, deceased Bidami Devi had not come to Murlipura Circle for opening her vend. On 9.8.2003 at about 8-9 A.M., Kamlesh (PW.13) informed that since Bidami Devi is sick, arrangement should be made for providing medicine to her. Then the witness had gone to the house of Bidami Devi and found her dead. Her both feet were chopped off and lying separately. This witness further stated that from the ladies near the house of deceased it was learnt that on 7.8.2003 Gyarsa was peeling garlic in front of house of Bidami Devi. 35. Dharamdas (PW.12) was also having small vend at the bus stand of Murlipura Circle for selling Pan. Deceased used to have her vend for selling garland and Jowar in front of shop of Dharamdas (PW. 12). This witness stated that on 7.8.2003 at around 6.00 P.M. deceased came to her shop to purchase Gutka. She was followed by Gyarsa. He further stated that Gyarsa used to come to the house of Bidami and perform small errands. Thus, two of the witnesses, namely Maliram (PW.2) and Dharamdas (PW.12) having their vends near the place where deceased used to sell garlands and Jowar, had seen the deceased with Gyarsa. 36. It has come in evidence of Pyara Singh (PW.18), Investigating officer, that Parsaram PW.4 is also known as Gyarsa. Thus, two of the witnesses, namely Maliram (PW.2) and Dharamdas (PW.12) having their vends near the place where deceased used to sell garlands and Jowar, had seen the deceased with Gyarsa. 36. It has come in evidence of Pyara Singh (PW.18), Investigating officer, that Parsaram PW.4 is also known as Gyarsa. Sunil Kumar Yadav, the judicial Magistrate, appearing as PW.22, stated that on 10.9.2003 he had recorded statement of Gyarsa @ Parsaram under Section 164 Cr.P.C. 37. Parsaram@ Gyarsa appearing as PW.4 stated that on 7.8.2003 at about 6.00 P.M. present two appellants, Nandlal @ Nanda and Navratan @ Noratmal were taking liquor with the deceased at Murlipura Circle. After they had consumed liquor, they along with the witness came to the house of Badami Devi. At that place accused also took liquor with the deceased. They had cooked meat. They again purchased liquor from Langada (lame) (Hari Narain Jat) (PW.15) liquor seller. This witness further stated that in the night at about 5.30 P.M. he, after leaving Bidami and accused, left for his house, Hari Narain Jat (PW.15), i.e. Langada liquor seller, stated that he used to sell liquor in pouches and on 7.8.2003, he found both the appellants, Navaratan and Nandu,and Gyarsa sitting near Bidami and at that stage, Nandu had purchased pouches of liquor from him. This witness also divulged that on 7th August at 6.30 P.M. deceased Bidami Devi and accused had purchased liquor. Thus, from the above evidence, following two important facts are required to be noticed:- (i) According to Maliram (PW.2) and Dharamdas (PW.12), deceased was last seen with Gyarsa. Gyarsa has introduced the present two appellants, Nandlal & Nandu and Navaratan @ Noratmal, as the persons who were last seen with the deceased. Hari Narain Jat (PW. 15) corroborates statement of Oyarsa @ Parsaram (PW. 4). (ii) Bidami Devi was alive on 7.8.2003 around 6.30 or 9.30 P.M. Her dead body was found on 9.8.2003 in the afternoon by the witnesses. Dead body was brought to the hospital on 9.8.2003 at 5.20 P.M.and her postmortem was conducted on 10.8.2003 at 11.00 A.M. Thus, postmortem was conducted after about 62 hours after the deceased was seen in company of the accused by the witnesses Paras Ram @ Gyarsa (PW. 4) and Hari Narain Jat (PW.15). 38. Dead body was brought to the hospital on 9.8.2003 at 5.20 P.M.and her postmortem was conducted on 10.8.2003 at 11.00 A.M. Thus, postmortem was conducted after about 62 hours after the deceased was seen in company of the accused by the witnesses Paras Ram @ Gyarsa (PW. 4) and Hari Narain Jat (PW.15). 38. The above two facts raise two pertinent questions which can be noted as under:- (i) Whether Parsaram @ Gyarsa (PW.4) and Hari Narain Jat (PW.15) are reliable witnesses so far as they have introduced present two appellants as one who were last seen with the deceased? (ii) Whether from decomposition and putrefaction of dead body and medical evidence on record, it can be assumed that the deceased was alive on 7.8.2003 at about 9.30 P.M., or had died earlier thereto? 39. Let us first consider the question No. (i) formulated by us. Parsaram @ Gyarsa (PW. 4) himself was suspect. Maliram (PW.2) and Dharamdas (PW. 12) had stated in a categorical term that this witness was last seen by them accompanying the deceased. It has come in evidence of this witness that the police arrested him on the next date of occurrence and kept in police station for one month. Police recorded his statement under Section 161 Cr.P.C. at the police station. Police personnel told him that Dokari (Old lady) has been killed by Nandlal and Navratan. He further stated that the police people told him that he should depose against Nandlal and Navratan and then he will not be involved in the case. It will be pertinent to reproduce relevant lines from the cross-examination of the witness as under:- ^^eSa uank o uojru dks iqfyl us idM+k rc ls gh tkurk gwaA eq>s iqfyl okyksa us ?kVuk ds nwljs fnu idM+k Fkk o ,d eghus rd Fkkus esa j[kk FkkA iqfyl us esjs 161 ds c;ku ikus ij gh fy;s FksA ;g lgh gSA eq>s iqfyl okyksa us crk;k Fkk fd uanyky o uojru us gh Mksdjh dks ekjk gSA ;g ckr lgh gS fd iqfyl us eq>s ;g dgk Fkk fd rw uojru o uanyky ds f[kykQ xokgh ns ns ge rq>s NksM+ nsaxsA** 41. This witness further stated that he had not known Nandlal and Navratan before they were apprehended by the police later said that he came to know about these persons from the day police caught hold of them. This witness further stated that he had not known Nandlal and Navratan before they were apprehended by the police later said that he came to know about these persons from the day police caught hold of them. Again said that he saw them sitting with Dokari (old lady). It is to be noted that statement of this witness, Exhibit-P.16, was recorded by the Magistrate under Sec. 164 Cr.P.C. on 11.9.2003 after one month of the occurrence. Statement of Parsaram @ Gyarsa, Exhibit D.1, was recorded on 17.8.2003. There is a merit in the contention of the learned counsel for the appellants that this court cannot vouchsafe the fact that in reality statement of Parasram @ Gyarsa under Section 161 Cr.P.C. was recorded on 17.8.2003. Referring to the statement made by Parasram @ Gyarsa (PW.4) in cross-examination, the learned counsel for the appellants has submitted that police had introduced name of these two accused in the statement recorded by the Magistrate under Sec. 164 Cr.P.C., when both the appellants stood arrested. Counsel for the appellants has submitted that Nandlal @ Nanda was arrested on 27.8.2003, whereas Navratan @ Noratmal was arrested on 5.9.2003. It is contended that after these two accused were arrested, their names were introduced on 11.9.2003 in the statement made by Paras Ram before the Magistrate under Sec. 164 Cr.P.C. Learned counsel for the appellants submits had the name of the accused-appellants surfaced in the statement of Parasram@ Gyarsa recorded u/Sec. 161 Cr.P.C. on 17.8.2003, there was no need for the police to detain Parasram @ Gyarsa in the police station for a period of month and release the witness only after his statement was recorded u/Sec. 164 Cr.P.C. 42. We are also conscious of the testimony of Maliram (PW. 2) and Dharamdas (PW. 12) as per them Parasram @ Gyarsa was the one who was last seen with the deceased. In order to wriggle himself out of the case, Parasram @ Gyarsa on the allurement given by the police, has screened himself by introducing the present two appellants. Thus, for us, Parsaram @ Gyarsa, is not a reliable witness. 43. Hari Narayan Jat (PW.15) who had corroborated testimony of Parasram @ Gyarsa, is not a better witness. He has admitted that he was engaged in bootlegging. This witness stated that police learnt that he was selling liquor without license. Police had registered no case against him. Thus, for us, Parsaram @ Gyarsa, is not a reliable witness. 43. Hari Narayan Jat (PW.15) who had corroborated testimony of Parasram @ Gyarsa, is not a better witness. He has admitted that he was engaged in bootlegging. This witness stated that police learnt that he was selling liquor without license. Police had registered no case against him. Police told him not to sell liquor in future. This witness further stated that Kanta Prasad Ji, Padam Ji and SHO told him to tell the truth and give a statement and therefore case will not be registered against him. This witness further stated that he had a fear that in case he would not give a statement, he will be involved in a police case. This witness further stated that he was selling liquor and therefore, he was under the fear of the police. This witness further stated that it is correct that he gave statement on the asking of police, later said that he had deposed whatever had happened before him. This witness further admitted that he was kept in police station for one day and was released after interrogation and his statement was recorded by the police at the police station. Statement of this witness under Section 161 Cr.P.C. was also recorded at a belated stage and names of the accused were introduced therein. Thus, there is no doubt in our mind that it is highly unsafe to rely on the testimony of Parasram@ Gyarsa (PW.4) and Hari Narayan Jat (P.W. 15). 44. Now, we will answer the second question formulated by us. 45. Postmortem of the dead body of Bidami Devi, aged 65 years, was conducted on 10.8.2003 at 11.00 A.M. As per the clinical observation, body was averagely built and nourished, accompanied by foul smell in state of decomposition, maggots were crawling all over the body and coming out from all natural orifices. Whole body was swollen and abdomen was distended. Face was swollen, tongue and eyeball were protruding out. Skin was brow-nish black in colour and peeled off at places with blisters all over the body. Due to decomposition of body, postmortem lividity was there. Rigor mortis had passed off. Dr. Whole body was swollen and abdomen was distended. Face was swollen, tongue and eyeball were protruding out. Skin was brow-nish black in colour and peeled off at places with blisters all over the body. Due to decomposition of body, postmortem lividity was there. Rigor mortis had passed off. Dr. S.D. Qureshi (PW.14) being a Medical Jurist and member of the Medical Board who had conducted autopsy on the dead body, stated that as per opinion of the medical board, duration between death and post-mortem was 3 to 5 days. However, in his cross-examination, when condition of the dead body was brought into the notice of the witness especially that there was presence blisters over the dead body, the witness stated that duration between death and postmortem was 5 days. It can be one day more or less. It is to be noted that in the present case rigor mortis had passed off and postmortem lividity was present, blisters were present on the body, skin was peeling off and had became brownish black in colour, maggots were crawling all over body and were coming out of natural orifices, tongue and eyeball were protruding out. Thus, thee Doctor who conducted autopsy on the dead body of the deceased had to state that in case death is more than eight to ten days old, the blisters will present over the body. Doctor then lightly on the lower side assumed and said that death was about five days old. The condition of the body was not such that we should accept that Bidami Devi had died 64 hours before her postmortem examination. After taking into account medical condition of the dead body, at the time of postmortem, we concur with the opinion of the medical expert. Dr. Qureshi (PW.14) has said in the cross-examination that by giving all margin, death had occurred five days before the occurrence. Postmortem was conducted on 10.8.2003, if the death had occurred five days before postmortem examination, then Bidami Devi had died probably on 5th or 6th of August, 2003 and not in any case on 7.8.2003 after 9.30 p.m., as it is suggested by the witnesses. Thus, we cannot place reliance upon the testimony of Parasram @ Gyarsa (PW.4) and Hari Narayan Jat (PW.15) that they had seen accused with the deceased on 7.8.2003 in the last hours of night. Thus, we cannot place reliance upon the testimony of Parasram @ Gyarsa (PW.4) and Hari Narayan Jat (PW.15) that they had seen accused with the deceased on 7.8.2003 in the last hours of night. Bidami Devi had died much earlier to 7.8.2003 and thus, evidence of last seen is belied by medical evidence and is, therefore, discarded. 46. Having disbelieved the witnesses qua the evidence of circumstance of last seen, we are left with recovery of weapon and ornaments of the deceased, from the accused. Recovery of ornaments 47. Manohar (PW.11) on 12.8.2003, submitted an application (Ex.P.26) before the SHO, Police Station Murlipura, Jaipur in which he stated that somebody, after killing Bidami Devi, had committed theft of two Kadiyas (anklets) of silver weighing 500-600 gms., one gold Mandliya (necklace) and one silver Patadi in which image of Hanumanji is engraved and these articles were identified by the complainant Manohar and Dhanna. Dhanna had identified these articles during identification before the Magistrate, Sunil Kumar Yadav (PW. 22). Since identification of ornaments is not much in dispute, we have to consider recovery of the same from the accused. 48. On 27.8.2003 at about 12.50 P.M. accused-appellant, Nandlal @ Nanda, made a disclosure statement (Ex.P.33) under Section 27 of the Evidence Act wherein be stated that the silver anklets and the gold Mandliya have been concealed by him in a house and he can get the same recovered Again another disclosure statement (Ex. P. 36) of the accused-appellant, Nandlal @ Nanda was recorded on 30.8.2003 at 3.10 P.M. wherein he stated that the silver anklets have been concealed by him in Malviya Nagar Maruti Zip Factory in a servant quarter belonging to his brother. In pursuance of this disclosure statement (Ex.P.36) dated 30.8.2003, appellant Nandlal @ Nanda got recovered two silver anklets weighing 500-600 gms. in presence of Padam Singh (PW.10 and Babulal (PW.20). No explanation is coming forward to reconcile the contradiction between disclosure statements (Ex. P.33 and Ex. P. 36). It is to be noted that recovery of gold Mandliya had later affected from accused Navratan @ Noratmal. It is to noted that both the disclosure statements, Exhibit P.33 dated 27.8.2003 and Exhibit P.36 dated 30.8.2003, are not attested by any witness. No explanation is coming forward to reconcile the contradiction between disclosure statements (Ex. P.33 and Ex. P. 36). It is to be noted that recovery of gold Mandliya had later affected from accused Navratan @ Noratmal. It is to noted that both the disclosure statements, Exhibit P.33 dated 27.8.2003 and Exhibit P.36 dated 30.8.2003, are not attested by any witness. This court in the case of Rameshwar and Dinesh @ Pillu vs. State of Rajasthan D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014 has held as under:- "Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex.P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. vs. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating Officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses." Taking totality of the circumstances that the investigating agency had pressurized Parasram @ Gyarsa (PW. 4), Hari Narayan Jat (PW. 15) to name the appellants as accused, this Court cannot rule out that recovery of articles is a padding. On 7.9.2003 at about 1.15 p.m., vide Ex.P/37, Navratan @ Noratmal had made a disclosure that one old Mandliya and one Patari having picture of Hanumanji, gold plated, has been concealed by him in a room in his posse-ssion. 15) to name the appellants as accused, this Court cannot rule out that recovery of articles is a padding. On 7.9.2003 at about 1.15 p.m., vide Ex.P/37, Navratan @ Noratmal had made a disclosure that one old Mandliya and one Patari having picture of Hanumanji, gold plated, has been concealed by him in a room in his posse-ssion. It is to be noted that Exhibit P.37 is also not attested by any witness. In pursuance of Ex. P.37, vide memo, Ex. P.13, appellant Navratan @ Noratmal in presence of Maliram (PW.2) and Babulal (PW.20) got recovered gold Mandliya and silver Patari having gold plating, from his house at kheda Mahapura. It is to be noted that Maliram (PW. 2) in the court stated that silver Kadas were also recovered from the house of Navratan. It will be pertinent to reproduce a relevant lines from the cross-examination of this witness, as under:- ^^dMs Hkh mlh VkaM ij ls esjs lkeus cjken fd;s Fks tks uojru ds ?kj ls cjken fd;s FksA pkanh ds dMks dks eSa igpkurk gwa] dMks ij igpku dk fpag dksbZ vyx ls gks rks eq>s /;ku ughaA** 50. Thus there is a contradiction regarding recovery of silver anklets and this belie the version of the prosecution that silver anklets were recovered at the instance of Nandlal @ Nanda from Malviya Nagar. As stated earlier, disclosure statement (Ex.P.33), disclosure statement (Ex.P. 37) made by Nanda @ Nandlal accused and statement of Maliram (PW. 2) make recovery of gold articles doubtful. Hence, it is not safe to use this circumstance against the accused. Recovery of weapon 51. The case of the prosecution is that Nandlal @ Nanda, on 27.8.2003 at 1.20 P.M., suffered disclosure statement (Ex. P.34) in presence of Pyara Singh (PW.18, SHO, Police Station Murlipura and stated that he can get one Fawda recovered which was used for breaking the legs of the deceased. On next day, i.e. on 28.8.2003 at about 9.45 A.M., again the appellant Nandlal @ Nanda suffered disclosure statement (Ex. P.35) wherein he stated that he can get one knife recovered from Goras Bhandar near Power House. It is to be noted that both the disclosure statements (Ex.P.34 and Ex.P.35) are not attested by any witness. It is further case of the prosecution that in pursuance of disclosure statement (Ex.P.34), vide Exhibit P.9, in presence of Maliram (PW. P.35) wherein he stated that he can get one knife recovered from Goras Bhandar near Power House. It is to be noted that both the disclosure statements (Ex.P.34 and Ex.P.35) are not attested by any witness. It is further case of the prosecution that in pursuance of disclosure statement (Ex.P.34), vide Exhibit P.9, in presence of Maliram (PW. 2) and Ramesh Dhobi on 27.8.2003 at 1.30 P.M., accused Nanda @ Nandlal got recovered Fawada from tin-shed adjoining to the room of deceased Bidami Devi. Fawada, allegedly, was lying beneath the jute bags. Similarly, on 28.8.2003 at 1.45 P.M. in pursuance of disclosure statement made by Nandlal @ Nanda (Ex.P.35), vide Exhibit P.31 in presence of Babulal (PW. 20), got recovered knife (Article-23). Mahadev (PW.17) was posted as Constable in the police station. This witness stated that knife was recovered from a wooden Khokha which was broken. It was not locked and the wooden Khokha was empty and vacant. He further stated that knife had rusted. It will be pertinent to notice that Dr. M.D. Qureshi (PW. 14) who had conducted autopsy had stated that with knife (Article 23) one cannot cut bone of the feet. 52. Maliram (PW. 2) stated that knife was recovered in his presence and he had not attested the memo of recovery. Maliram is witness of recovery of Fawada and if in his presence knife was recovered, the knife ought to have been recovered on the same day when Fawada was recovered, whereas recovery memo (Ex. P.9) was prepared on 27.8.2003 and memo of recovery of knife (Ex.P. 31) on 28.8.2003. Exhibit P. 31 excluded presence of Maliram (PW. 2). Since Maliram stated that knife was recovered in his presence and he was present at the spot on 27.8.2003, veracity of document (Ex. P.31) is under cloud. Considering that disclosure statement have not been attested by the witness, investigation of the case is tainted, Parasram @ Gyarsa (PW. 4) and Hari Narayan Jat (PW.15) were compelled to become witnesses of last seen, therefore, this court will also not place reliance upon the recovery of weapons allegedly affected from the accused Nandlal @ Nanda. 53. It is to be noted that the appellant Navratan @ Noratmal had only disclosed the spot where he had allegedly thrown the knife and in pursuance of this disclosure, no recovery has been affected. 53. It is to be noted that the appellant Navratan @ Noratmal had only disclosed the spot where he had allegedly thrown the knife and in pursuance of this disclosure, no recovery has been affected. Therefore, the disclosure regarding identification of spot where knife was thrown without any recovery is again inadmissible in evidence. Resultantly, this court shall ignore the evidence led by the prosecution regarding recovery of weapon and identifica-tion of spot where knife was thrown by Navratan @ Noratmal being doubtful. 54. Having discarded the evidence of last seen of accused with the deceased, recovery of gold ornaments and recovery of weapon, this court is of the view that the prosecution has failed to complete the chain of circumstances to infer that no body else except the appellants had committed the offence. 55. As a result thereof, we accept the present appeals, and set aside the conviction and sentence awarded upon the present appellants and acquit them of the charges. 56. In view of the acceptance of the appeals, we order that the appellants, namely Nand Lal and Navratan @ Noratmal, be released forthwith, if not required in any other case. 57. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Nand Lal and Navratan @ Noratmal, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial Court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.