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2016 DIGILAW 150 (RAJ)

Dilip Kumar v. State of Rajasthan

2016-01-25

GOPAL KRISHAN VYAS, NIRMALJIT KAUR

body2016
Hon'ble KAUR, J.—This criminal appeal under Section 374 (2) Cr.P.C. is directed against the judgment and order dated 16.9.2008 passed by learned Additional Sessions Judge (Fast Track), Dungarpur in Sessions Case No. 60/2007 (50/2007), vide which the accused-appellant was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine to further undergo 6 months' simple imprisonment. 2. As per the prosecution story, the complainant Umesh Kumar (PW.1) submitted a written report on 27.6.2007 at the Police Station Aspur that on 22.6.2007, the husband of his sister, namely, Dilip Kumar came to their house around 5.00-5.30 P.M. on his motorcycle and called out to his younger brother Hitesh and took him on his motorcycle. It was further alleged that his sister Vanita was staying with him in his house since last 5-6 months as her husband Dilip Kumar used to beat her. Dilip Kumar used to threat them with dire consequences in case, they did not send their sister with him. When his brother did not return for 2 days, he and his family members went to village Ramgarh in search of their brother. They must Dilip Kumar while he was sitting in his shop. However, Dilip Kumar expressed his ignorance about whereabouts of Hitesh. Subsequently, on 25.6.2007, they received information that a dead body was found on the back water of Som Kamla Aamba. It was alleged that Dilip Kumar had committed the murder of his brother Hitesh and thereafter threw the dead body in the water and it was in pursuance to the said complaint that an F.I.R. was registered under Section 302 IPC against the accused-appellant Dilip Kumar. 3. The prosecution in support of its case examined as many as 23 witnesses and exhibited as many as 31 documents. The accused-appellant was examined under Section 313 Cr.P.C. However, the accused-appellant simply denied the allegation but in his statement under Section 313 Cr.P.C., he stated that he has been implicated in this false case as they want their sister Vanita to divorce him. The Trial Court convicted the accused-appellant on the basis of last seen evidence. 4. Heard. 5. In order to prove their case, the prosecution produced Umesh Kumar as PW.1. The Trial Court convicted the accused-appellant on the basis of last seen evidence. 4. Heard. 5. In order to prove their case, the prosecution produced Umesh Kumar as PW.1. He is the real brother of the deceased Hitesh and is also author of the F.I.R. He has corroborated his statement made before the police under Section 161 Cr.P.C. and stated that Hitesh, the deceased had gone with Dilip Kumar on his motorcycle on 22.6.2007. Yashoda Devi was produced as PW.2. She is the mother of the deceased. She too has supported the statement of PW.1. Vanita who is wife of the accused-appellant Dilip Kumar and read sister of the deceased, was produced as PW.3. She too has stated that her husband Dilip Kumar took her brother with him on his motorcycle on 22.6.2007 and that her brother was killed by her husband Dilip Kumar. The neighbour Ashok Kumar Joshi was produced as PW.5, who too stated that he had seen Hitesh with Dilip Kumar on motorcycle on 22.6.2007. Thereafter, the body of the deceased was recovered on 25.6.2007. The body was identified as that of Hitesh. The postmortem of the deceased was conducted on 26.6.2007 and the postmortem report is exhibited as Ex. P.10 As per the postmortem report, there was one stab wound of 2 cm x 1 cm (over L2 L3 region). A fracture of larynx was also seen. The cause of the death is stated to be asphyxia due to compression over neck (blockage of upper respiratory tract). Dr. Bhupendra Singh Choudhary was produced as PW.14, who verified the postmortem report of the deceased and submitted that the injuries were prior to the death and the death had occurred prior to the drowning of the body. It was further alleged that the death was on account of asphyxia. 6. In spite of the stab wound on the body, admittedly, no weapon was recovered. No recovery was affected from the appellant. Hence, there is no direct evidence. The prosecution has based their entire case on the evidence of last seen. 7. Thus, the question herein is whether in the absence of any other evidence, the evidence of last seen can be the sole criteria for upholding the conviction. 8. No recovery was affected from the appellant. Hence, there is no direct evidence. The prosecution has based their entire case on the evidence of last seen. 7. Thus, the question herein is whether in the absence of any other evidence, the evidence of last seen can be the sole criteria for upholding the conviction. 8. The Apex Court in the case of Krishnan vs. State of Tamil Nadu reported in AIR 2014 SC 2548 set aside the High Court's verdict awarding life imprisonment to three people charged with abduction and murder by upholding that the `last seen with' theory could be applied only in cases, where the time gap between the deceased seen alive with the accused and later found dead was so small that it was not possible for anyone else to commit murder. In the case before the Hon'ble Apex Court, the gap was of 6 days and while relying on the judgment rendered in the case of Arjun Marik & Ors. vs. State of Bihar reported in (1994) Suppl. (2) SCC 372, the Hon'ble Apex Court held in Para 23 as under: "23. There is unexplained delay of six days in lodging the F.I.R. as per prosecution story, the deceased Manikandan was last seen on 4.4.2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the decea-sed was last seen together with the accused and intervening period of seven days there was nobody in contract with the deceased." 9. In the case of Sahadevan & Anr. vs. State of Tamil Nadu reported in AIR 2012 SC 2435 , the Hon'ble Apex Court while discussing the theory of last seen observed that merely being last seen together is not enough. What has to be established is definite evidence to indicate that the deceased had been done to death keeping in mind the circumstances prior as well as which follow the death when they were last seen. While setting aside the judgment and order of the High Court and accepting the appeal of the accused-appellant in the said case, the Hon'ble Apex Court held in paras 34 and 35 as under: "34. While setting aside the judgment and order of the High Court and accepting the appeal of the accused-appellant in the said case, the Hon'ble Apex Court held in paras 34 and 35 as under: "34. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainly. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 35. The statement of PW.5 does not indicate the time as to when he had seen the deceased and with which of the accused. He expressed inability to even identify them. PW.-4 though claims to have seen them but has given a time which itself is doubtful. Even this cannot be stated with certainty that at that particular time the deceased was alive or dead." 10. In the present case, the accused-appellant and the deceased were last seen together on 22.6.2007. The dead body was found on 25.6.2007 and the F.I.R. was registered after the postmortem on 27.6.2007. No effort was made to find the deceased till about 2 days had passed. There is discrepancy even in the statement of the last seen witnesses. Although, all of them have stated in one voice that the accused-appellant had gone with the deceased on 22.6.2007 but PW.1 Umesh Kumar and PW.2 Yashoda Devi have stated that while they were searching the deceased, they enquired his whereabouts from Dilip Kumar but he denied that he ever took Hitesh with him. Whereas, PW.3 Vanita and PW.4 Bhagwati stated that Dilip Kumar had told that he had left Hitesh at the station after giving him money for the ticket. There is a gap of 2 days from the time the deceased was last seen with the accused-appellant and till his body was recovered. The link evidence is missing in the present case. 11. The motive is always a double edged weapon. Although, the motive expressed is that Dilip Kumar had killed Hitesh because they were not allowing their sister to accompany him, on the other hand, Dilip Kumar in his statement under Section 313 Cr.P.C. stated that he is being falsely implicated as they want his wife Vanita to take divorce from him. The motive is always a double edged weapon. Although, the motive expressed is that Dilip Kumar had killed Hitesh because they were not allowing their sister to accompany him, on the other hand, Dilip Kumar in his statement under Section 313 Cr.P.C. stated that he is being falsely implicated as they want his wife Vanita to take divorce from him. Moreover, both PW.1 Umesh Kumar and PW.3 Vinita have admitted that Hitesh used to go off and on with Dilip Kumar and almost on regular basis. In case, Dilip Kumar was threatening them, then it is not understood as to why the family allowed Hitesh to accompany Dilip Kumar and in case, it is suggested that they were on friendly terms with each other then the reason for Dilip Kumar to kill the deceased is not made out. The argument that Dilip Kumar identified the place of occurrence too does not help as the body was recovered even prior to the arrest of the accused-appellant and the place of occurrence was already known to the police. 12. Therefore, from the above, it is evident that there is no eye-witness. It is only a case of circumstantial evidence. In a case of circumstantial evidence, the onus lies on the prosecution to prove their case. The entire chain of events from the time the deceased was missing to the time his body was found or the murder took place has to be established. There is not an iota of evidence from the time the deceased is stated to have left with appellant. Thus, the evidence in this case is both insufficient and weak. It would be highly dangerous to convict a person on the basis of last seen evidence only and on the basis of mere suspicion. 13. Accordingly, the present criminal is allowed. The impugned judgment and order 16.9.2008 passed by learned Additional Sessions Judge (Fast Track), Dungarpur is set aside. The accused-appellant is acquitted of the offence under Section 302 I.P.C. on account of insufficient evidence and while granting him benefit of doubt. He shall be released forthwith, if not required in any other case.