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2016 DIGILAW 1842 (RAJ)

State of Rajasthan v. Pyarelal

2016-12-16

KANWALJIT SINGH AHLUWALIA, V.K.MATHUR

body2016
JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. On the intervening night of 25th and 26th November, 2011, on the road going from Sewad Badi to Sutot, murder of Mohanlal Jat, brother of Parmeshwari Devi (PW.9) was committed by causing injury on the head with a stone. As per prosecution the said murder was committed by Pyarelal @ Mahendra S/o Mahadevaram @ Madharam (hereinafter called Pyarelal). 2. There is no direct evidence available with the prosecution and hence, the prosecuting agency relied upon circumstantial evidence to secure conviction of accused-respondent Pyarelal. 3. The Court of Additional Sessions Judge No. 1, Sikar vide impugned order dated 02.05.2016 recorded acquittal of accused-respondent Pyarelal. The acquittal of respondent Pyarelal has been assailed before this court by the complainant by filing D.B. Criminal Appeal No. 753/2016. State of Rajasthan has also filed D.B. Criminal Leave to Appeal No. 315/2016. Since the State of Rajasthan and the complainant have challenged the same impugned judgment, we shall decide criminal appeal filed by the complainant Parmeshwari (PW.9) and criminal leave to appeal preferred by the State of Rajasthan, together. 4. Registry has pointed out that there is delay of eleven days in filing of the appeal, filed by the complainant. Complainant has also filed D.B. Criminal Misc. Application No. 216/2016 to condone the delay in filing of the appeal. 5. After hearing learned counsel for the complainant, for the reasons stated in the application, we accept the same and condone the delay in filing D.B. Criminal Appeal No. 753/2016. 6. Having condoned the delay we have taken the appeal preferred by the complainant and the leave to appeal filed by the State of Rajasthan for arguments and consideration. 7. Parmeshwari Devi (PW.9) sister of deceased Mohanlal had lodged FIR (Ex. P.34) wherein she stated that on 25.11.2011 at 5.00pm her brother Mohanlal had gone to Sewad. At 7.30pm she had a telephonic talk with Mohanlal. She further stated that Mohanlal at that time was at Pilaniya and he informed that he was with Bajrang Lal. Later, she made a telephonic call to Bajrang Lal. However, Bajrang Lal denied that the deceased Mohan Lal was present with him. In the FIR it was stated by Parmeshwari (PW.9) that her brother before his death was present along with Bajrang Lal Godara resident of Vijay Pura. 8. Later, she made a telephonic call to Bajrang Lal. However, Bajrang Lal denied that the deceased Mohan Lal was present with him. In the FIR it was stated by Parmeshwari (PW.9) that her brother before his death was present along with Bajrang Lal Godara resident of Vijay Pura. 8. Investigating agency recorded statement of Bajrang Lal (PW.1) u/s. 161 Cr.P.C. Bajrang Lal in court has not supported the prosecution case and was declared hostile. In cross-examination, Bajrang Lal in cross examination deposed that Mohanlal was an alcoholic. He was of quarrelsome nature and used to pick-up fight with people under the influence of liquor. 9. Bhagirath Mal (PW.3) was resident of Sutot. The witness stated that on 25.11.2011 at about 5.00 PM his neighbour Mohanlal came to him with his sister Parmeshwari and informed him that he is going to Sewad Badi. The witness further stated that he was informed by Parmeshwari (PW.9) that she had left Mohanlal at Sewad alongwith Pyarelal s/o Mahadev Prasad. This witness also testified regarding the spot where the dead body was found. 10. Mohanlal (PW.4) stated that on 25.11.2011 at 8.00 PM he got a telephonic call from Parmeshwari and she inquired whether Mohanlal was with him or not. The witness replied to her that he will visit Bajranglal to enquire about the whereabouts of Mohanlal. This witness was also declared hostile to the prosecution as he replied from his previous statement to the police. 11. Beerbal (PW.5) proved the arrest memo (Ex. P.16) whereby respondent Pyarelal accused was arrested. 12. Shrawan Kumar (PW.6) is brother of deceased Mohanlal. The witness stated that on 25.11.2011 at 5.00 PM Mohanlal informed Parmeshwari that he is going to Sewad. The witness attested site plan (Ex. P.6) and only deposed in court about the facts heard by him from Parmeshwari (PW.9). Thus this witness has only narrated hearsay evidence. 13. Mahesh Kumar (PW.7) being Photographer had taken photographs at the spot. 14. Vijay Pal (PW.8) had lifted foot moulds from the spot. 15. Parmeshwari (PW.9) has been cited by the prosecution as witness of last seen. A perusal of examination-in-chief of the witness reveal that she had not seen the accused with Mohanlal. She only stated that from her mobile phone she had called the deceased. Later she called Bajrang and Bajrang informed him that deceased Mohanlal had left his place with Pyarelal. Parmeshwari (PW.9) has been cited by the prosecution as witness of last seen. A perusal of examination-in-chief of the witness reveal that she had not seen the accused with Mohanlal. She only stated that from her mobile phone she had called the deceased. Later she called Bajrang and Bajrang informed him that deceased Mohanlal had left his place with Pyarelal. She further stated that at 8.30 PM she called Mohanlal and her phone was attended by accused Pyarelal. 16. Balbeer (PW.10) stated that he was posted as Head Constable in the Office of Superintendent of Police, Sikar. He had gone to the spot and had lifted foot moulds. 17. Ramswaroop (PW.11) has not supported the prosecution case and has been declared hostile. 18. Similarly, Hari Singh (PW.12) has also not supported the prosecution case and was declared hostile. 19. Constable Devilal (PW.13) was posted as In-charge of Police Malkhana. 20. Constable Mohan Singh (PW.14) had carried articles from Malkhana and deposited the same with the State Forensic Science Laboratory. This witness was examined to prove the link evidence. 21. Bhanwarlal (PW.15) was examined to prove the arrest of the accused. 22. Sub-Inspector Bansidhar (PW.16) being Investigating Officer has proved various facets of investigation. 23. Ashok Kumar (PW.17) had not supported the prosecution case and was declared hostile. 24. Ram Chandra Moond (PW.18) being another Investigating Officer has proved various recoveries from the spot and part of investigation, carried by him. 25. Sunita Verma (PW.19) had taken specimen foot moulds of the accused. 26. Dr. Bhanwarlal (PW.2) had conducted autopsy on the dead body. 27. The best witness cited by the prosecution is Parmeshwari (PW.9) regarding the evidence of last seen. She herself had not seen the accused alongwith the deceased. Her case is that at 8.30 PM she called the deceased and his phone was attended by Pyarelal. Prosecution has not proved on record by producing any document or examining service provider that Parmeshwari (PW.9) had called her deceased brother and phone was attended by accused-respondent. The trial court qua the testimony of Parmeshwari (PW.9) has observed as under:- "The prosecution was required to prove through evidence that there was phone calls between PW-9 and her brother, Bajrang Lal and Pyarelal on 25.11.11 between 7 pm to 9 pm but the Investigating Officer has utterly failed in his duty and has not collected any evidence in this regard. He has not collected the call details record between the mobile phone of Parmeshwari and mobile phone of Mohan Lal and Bajrang Lal. Admittedly the phone has not been recovered from possession of the accused or at instance of accused under Section 27 Evidence Act. This fact is admitted by Investigating Officer PW-16 in his cross examination. PW-16 has admitted in his cross examination that he had not conducted investigation regarding Article 11 mobile and sim 12 and 13 as to who used these sims at relevant point of time and what was the tower location." 28. Qua the evidence of last seen, trial court held that Bajrang Lal had not corroborated Parmeshwari (PW.9) and observed as under: "The statement of Bajranglal was very crucial for prosecution and to corroborate the statement of the PW-9 Parmeshwari but Bajrang Lal has totally turned hostile and refused to support the prosecution story in his statement as PW-1 and refused to corroborate the version of Parmeshwari that Pyarelal was with Bajranglal and Mohan or that there was any conversation between him and Parmeshwari on mobile. PW-1 was cross examined by the Public Prosecutor but nothing material in favour of the prosecution could be extracted rather PW-1 stated that he do not know Pyarelal. This witness has also stated in cross examination by counsel for accused that Mohan Lal was a habitual drunk and had quarrelsome nature. PW-1 has refused to acknowledge that Police had recorded his statement." 29. The trial court further held that merely because same Blood Group was found on the clothes of the deceased and on the shirt of the accused is not sufficient to infer that accused had participated in the occurrence. The trial court held that it cannot be ruled out that Blood Group 'B' can also be of the accused and furthermore, the court held that thousands of people are having Blood Group 'B' and therefore, this circumstance alone is not sufficient to pronounce conviction of the accused. 30. We have heard the learned counsel for the complainant/appellant and the learned Public Prosecutor and also perused the record and the impugned judgment. 31. The trial court acquitted the accused respondent by giving cogent reasons. The view taken by the trial court is one view which is possible on the facts and circumstances of the case. 30. We have heard the learned counsel for the complainant/appellant and the learned Public Prosecutor and also perused the record and the impugned judgment. 31. The trial court acquitted the accused respondent by giving cogent reasons. The view taken by the trial court is one view which is possible on the facts and circumstances of the case. No perversity or patent illegality is discernible in the impugned judgment rendered the learned trial court. Prosecution has failed to prove evidence of last seen. The assertion of Parmeshwari (PW-9) that she had called her brother and his Mobile Phone was attended by the accused respondent, has not proved by the prosecution by producing any documentary evidence. Mere recovery of shirt of the accused having human Blood Group 'B' is not sufficient to hold that the accused respondent had committed the offence. 32. Consequently we are firmly of the view that no interference is warranted and thus, we uphold the judgment of acquittal rendered by the trial court. 33. Hence, both D.B. Criminal Leave to Appeal No. 315/2016 preferred by the State of Rajasthan and D.B. Criminal Appeal No. 753/2016 filed by the complainant are dismissed being devoid of merit.