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2016 DIGILAW 1449 (RAJ)

State of Rajasthan v. Umar Khan S/o Hasam Khan

2016-10-05

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : Gopal Krishan Vyas, J. In this criminal appeal filed by the State of Rajasthan under Section 378 (3) and (1) of Cr.P.C., the judgment dated 18th February, 1995, passed by learned Sessions Judge, Merta Camp, Parbatsar, is under challenge, whereby the respondents Umar Khan and Mamarudeen, were acquitted from the charges levelled against them for the offence under Sections 302/34 and 201/34 of IPC while extending them benefit of doubt. 2. Briefly stated, the facts of the case are that complainant, Daud (PW.5) submitted a hand written report (Ex.P/1) on 04.04.1991 at Police Station-Peelwa stating therein that on 31.03.1991 my brother, namely, Iqbal was seen standing near Primary School, Station at 07.30-08.00 PM, however, he did not return back to home. It was further stated in the complaint that efforts were made to search him but he was not found. 3. After filing the aforesaid missing person report on 04.04.1991, the dead body of Iqbal, brother of complainant, was recovered, therefore, another report was filed by him on 06.04.1991 stating therein that earlier he filed missing person report of his brother Iqbal @ Gormant on 04.04.1991, but today his dead body is found on 'Gular' road near the fencing of Forest Department and it appears that some body has killed his brother, therefore, action may be taken against the accused persons. 4. Upon the aforesaid hand written report (Ex.P/2) dated 06.04.1991, the S.H.O., Police Station-Peelwa, registered FIR No.20/1991 (Ex.P/3) and commenced investigation. 5. During the investigation, on the basis of extra judicial confession made by the respondents before PW.12-Abdul Kayyum and PW.13-Nawab Khan, the respondents were arrested and upon their information, one axe and clothes were recovered vide Ex.P/25, P/26 and 27. After completing the investigation, a charge sheet was filed against the respondents in the court of Addl. Chief Judicial Magistrate, Parbatsar, for the offence under Sections 302 and 201 read with Section 34 of IPC. The learned Magistrate committed the case for trial to the court of Sessions Judge, Merta, Camp Parbatsar. 6. In the trial held by the learned Sessions Judge, charges under Sections 302/34 and 201/34 were framed against both the respondents, which they denied and claimed trial. 7. To prove the prosecution case, 30 witnesses were examined by the prosecution and thereafter statements of the respondents were recorded under Section 313 Cr.P.C. and oral evidence was also produced by them. 8. 7. To prove the prosecution case, 30 witnesses were examined by the prosecution and thereafter statements of the respondents were recorded under Section 313 Cr.P.C. and oral evidence was also produced by them. 8. Learned trial court after recording the evidence finally heard the arguments of both the parties and acquitted the respondents from the charges levelled against them in Session Case No.43/1991 vide judgment dated 18.02.1995. In this appeal, the State of Rajasthan is challenging the validity of said judgment. 9. Learned Public Prosecutor for the appellant State vehemently argued that the judgment impugned is totally erroneous because although there is no direct evidence but the prosecution has proved its case by leading trustworthy circumstantial evidence of recovery, so also, the evidence of other witnesses, but the learned trial court has committed grave error while not accepting the testimonies of PW.1 and PW.9, who were the witnesses of last seen. Therefore, the judgment impugned deserves to be quashed and the respondents are liable to be convicted for committing the murder to Iqbal. 10. Per contra, learned counsel appearing on behalf of respondents submits that admittedly there is no eye-witness of the incident and the whole case rests upon the evidence of alleged extra judicial confession made before two witnesses, namely, PW.12, Abdul Kayyum and PW.13 Nawab Khan, however, both these witnesses turned hostile and did not support the prosecution case. 11. It is also argued that the learned trial court after considering the evidence with regard to recovery gave a finding that no blood was found upon the axe, which is said to be recovered upon the information furnished by the respondents, so also, considering the fact that as per postmortem report (Ex.P/13) dated 06.04.1991, the person died 3-7 days back and as per evidence on record, the deceased was lastly seen with the respondent in the night of 31.03.1991, therefore, time of death is not correlate with evidence available on record. Further, the learned trial court specifically gave a finding in the judgment that blood group found on the clothes did not match with the blood group of the deceased. Therefore, the learned trial court while giving benefit of doubt, rightly acquitted the respondents. The learned trial court further observed and gave a finding that there is no reliable evidence to prove motive, therefore, the prosecution has failed to prove its case beyond reasonable doubt. 12. Therefore, the learned trial court while giving benefit of doubt, rightly acquitted the respondents. The learned trial court further observed and gave a finding that there is no reliable evidence to prove motive, therefore, the prosecution has failed to prove its case beyond reasonable doubt. 12. Learned counsel for the respondents further submitted that the investigating officer who has conducted the investigation, did not turn up to prove the investigation in trial, therefore, it cannot be said that the prosecution has proved the investigation of the case, thus on this important ground , no interference is called for in the judgment impugned. 13. According to learned counsel for the respondents the findings arrived at by the trial court does not suffer from any illegality and, therefore, the instant appeal filed by the State may be dismissed. 14. After hearing the learned counsel for the parties, we have perused entire evidence in the light of arguments of parties, admittedly, the witnesses, PW.12-Abdul Kayyum and PW.13-Nawab Khan, who are witnesses of extra judicial confession, both of them have turned hostile and did not support the prosecution case. 15. The entire prosecution case is based upon circumstantial evidence of last seen and recovery of weapon i.e. axe vide Ex.P/25. Upon clothes and two pairs of sleeper recovered vide Ex.P/26, no blood was found. All above recovered articles i.e. axe and clothes were sent to the FSL, however, in the FSL report, no blood was found upon the axe, so also, the blood group upon the clothes of the respondents, did not match with blood group of deceased, therefore, the learned trial court while considering the FSL report gave finding that recovery of axe and clothes of respondent cannot be accepted as evidence so as to convict the respondents for the alleged offence of crime. 16. In our opinion, the said finding given by the learned trial court for acquittal while extending benefit of doubt to the respondents is just and proper because upon the axe recovered as per information of respondents, no blood was found, so also, upon the pair of sleepers, no blood was detected, therefore, no case is made out for interference in the findings for recovered articles. As far as evidence of last seen is concerned, we have perused the FIR, so also, other evidence. As far as evidence of last seen is concerned, we have perused the FIR, so also, other evidence. In the FIR neither any assertion is made with regard to fact of last seen, nor any motive/intention was disclosed for murder of deceased. The learned trial court discredited the evidence of last seen on the ground that it is not proper to rely upon such type of evidence of last seen so as to held the respondent guilty. 17. The Hon'ble Apex Court in the case of Sharad Birdhichand Sharda v. State of Maharasthra reported in AIR 1984 SC 1622 , has held that the prosecution is required to prove its case beyond reasonable doubt, if the allegation is based on circumstantial evidence. The following parameters/guidelines are laid down by the Hon'ble Supreme Court, which reads as under:- "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 18. Upon consideration of findings and evidence considered by the learned trial court for acquitting the respondent, we are of the opinion that the prosecution has miserably failed to produce reliable evidence so as to complete chain of circumstances to arrive at a conclusion that only respondents are guilty for committing offence of murder, none else. 19. It is also worthwhile to observe that the entire case is based on circumstantial evidence and two witnesses of extra judicial confession turned hostile, then, obviously to prove the said fact, the investigating officer was required to be examined from the prosecution side to prove the investigation. But, in the instant case, the investigation officer did not turn up to give evidence in support of prosecution case, and therefore, it cannot be said that the prosecution has proved its case. 20. We have also considered the judgment cited at bar by the learned counsel appearing on behalf of complainant in the case of State of Karnataka v. Bhaskar Kushali Kotharkar & Ors. reported in AIR 2004 SC 4333 , in which the Hon'ble Apex Court held that even if the investigating officer did not appear before the court to give statement, the conviction of the accused is justified, but in the said case, there were eye witnesses viz. PW.1, 2 and 3. So far as present case is concerned, admittedly there is no eye witness of the incident, the entire case is based upon circumstantial evidence, therefore, the facts of the aforesaid are not at all applicable. 21. In view of above discussions and evidence on record, we are of the opinion that no error has been committed by the learned trial court to acquit the respondents from the charges levelled against them, therefore, no interference is called for in the impugned judgment. Resultantly, the present criminal appeal devoid of merits, deserves dismissal. The same is, accordingly, dismissed.