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2017 DIGILAW 1318 (RAJ)

Hemraj Mali v. State of Rajasthan Thro' P. P.

2017-05-24

MANOJ KUMAR GARG, MOHAMMAD RAFIQ

body2017
JUDGMENT : Manoj Kumar Garg, J. These two criminal appeals arise out of common judgment of conviction and sentence dated 7.4.2014 passed by learned Additional District and Sessions Judge, Shahpura District Jaipur ('the learned Trial Court' for short hereinafter) in Sessions Case No. 34/2010, hence same are being decided by this common judgment. By filing instant appeals the accused appellants have challenged the impugned judgment of conviction and sentence, by which they have been sentenced as under : Under Section 460 I.P.C. : Life imprisonment, Rs. 20,000/- as fine and in default of payment of fine, each of the accused appellant has to further undergo six months' rigorous imprisonment. Under Section 380 I.P.C. : One year simple imprisonment, Rs. 2,000/- as fine and in default of payment of fine, each of the accused appellant has to further undergo three months' simple imprisonment. Both the sentences were directed to run concurrently. 2. Brief facts of the case are that complainant Mahant Hariprakash Sharma (PW-2), submitted a written report (Ex.P-2) on 21.5.2010 at Police Station Viratnagar to this effect that he had constructed a temple of Jeen Mata on Ganeshji Road at Viratnagar. He further submitted that for care and worship of said temple, he had kept one Ramesh Chand S/o Hemraj Prajapati there as Pujari, who was R/o Shahganj, Ajmeri Gate, Delhi. Complainant further submitted in the written report that on 20.5.2010 some unknown thieves entered in the temple premises with an intention to steal and tried to break the lock of 'tijori'. When the 'Pujari' (Priest) of the temple woke up, he was murdered. The complainant further submitted that he received an information about the alleged incident on mobile, upon that he has come to Virat Nagar. Now, he is taking the legal action. 3. On the basis of this written report, an F.I.R. No. 62/2010 (Ex.P-3) was got registered for the offence under Section 460 I.P.C. During the course of investigation the accused appellants were arrested including one more accused Kamlesh @ Kamal. After investigation, the police submitted challan in the jurisdictional Court under Sections 302, 460, 380/34 I.P.C. Thereafter, the learned Trial Court took cognizance against the accused persons. The case was committed for trial to the Court of Additional District and Sessions Judge Shahpura, District Jaipur i.e. learned Trial Court as referred in preceding para. After investigation, the police submitted challan in the jurisdictional Court under Sections 302, 460, 380/34 I.P.C. Thereafter, the learned Trial Court took cognizance against the accused persons. The case was committed for trial to the Court of Additional District and Sessions Judge Shahpura, District Jaipur i.e. learned Trial Court as referred in preceding para. The learned Trial Court framed charges against the accused for the offence under Sections 302, 460 and 380 I.P.C., who denied the charges, pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case produced as many as 27 witnesses and got exhibited 112 documents. Thereafter, the statements of the accused appellants under Section 313 Cr.P.C. were recorded. In defence the accused appellants produced one witness namely DW-1 Babulal. 5. The learned Trial Court after hearing learned Counsel for the accused appellants and the learned Addl. Public Prosecutor appearing for the State acquitted both the accused appellants from the offence punishable under Section 302 I.P.C. by giving them benefit of doubt and also acquitted co-accused Kamlesh @ Kamal S/o Kailash Chand from the offence under Sections 302, 460 and 380 I.P.C. by giving him the benefit of doubt but both of them have been convicted and sentenced of punishment under Sections 460 and 380 I.P.C. for the offences as indicated herein above. 6. The accused appellants dissatisfied with the impugned judgment of conviction and sentence have preferred two separate criminal appeals before the Court for quashing and setting aside the same and also for acquitting them from the aforesaid offences. 7. Learned Counsel for the accused appellants submitted that there was no motive on the part of the accused appellants to commit the offence. Counsel submitted that the witnesses of last seen, which were five in numbers, had not supported the case of the prosecution. The mould which was taken from the site was not in a sealed condition, which is corroborated from the report of Forensic Science Laboratory (Ex.P-113). The another circumstance was recovery of blood-stained clothes, one sack of taat and one handkerchief from the possession of the accused-appellants had been after a great delay. Counsel submitted that there are material contradictions, improvements and omissions in the prosecution witnesses related to the recovery of the clothes. The another circumstance was recovery of blood-stained clothes, one sack of taat and one handkerchief from the possession of the accused-appellants had been after a great delay. Counsel submitted that there are material contradictions, improvements and omissions in the prosecution witnesses related to the recovery of the clothes. According to the Forensic Science Laboratory (FSL) report Ex.P-115, only human blood was found and there was no grouping about the blood group of the deceased. Counsel also submitted that the accused appellants who were identified in the test identification parade, did not support the story of the prosecution as they were interested witnesses and were witnesses of Surajmal (PW-11) and Hanuman Singh (PW-12) and more so the Magistrate in whose presence the test identification parade was held, was himself not examined by the prosecution. The Counsel also submitted that one 'Pickaxe' (Gainti) was also recovered by the police on 5.6.2010 at the instance of accused Sanju Singh and Hemraj Saini. The occurrence took place on 20.5.2010. Thus, recovery of 'Pickaxe' (Gainti) was a belated one. According to Forensic Science Laboratory (FSL) report Ex.P-115 only human blood was found thereon, which did not match from the blood group of deceased. Thus the recovery of alleged weapon of offence, was of no use in this case. One more fact which is argued by the Counsel of the appellants is that Malkhana Register was not produced by the prosecution. Counsel submitted that the seizure memo of the foot mould Ex.P-27 was not in sealed condition and no mark was mentioned. Forensic Science Laboratory (FSL) report Ex.P-113 also proved that mould were received unsealed and unmarked. There was no description of foot mark in Ex.P-4-site plan. Lastly, the learned Counsel for the appellants has submitted that accused-appellants have been falsely been implicated, therefore, the accused appellants be acquitted from the offences they have been convicted. 8. In support of their case, Counsel have placed reliance upon following judgments : 1. Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri.L.J. 1738. The Hon'ble Apex Court while dealing with circumstantial evidence has held that the onus was on the prosecution, cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. 2. Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri.L.J. 1738. The Hon'ble Apex Court while dealing with circumstantial evidence has held that the onus was on the prosecution, cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. 2. Krishnan v. State represented by Inspector of Police, 2008 Cri.L.J. 3590, in case of D.B. Criminal Appeal No. 841 of 2008, decided on 8.5.2008, in which the Hon'ble Apex Court has held that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 3. In the matter of State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Hon'ble Supreme Court held as under : "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd., AIR 1960 Madras, 218. The above judgment was relied upon and reiterated in Kirit Pal v. State of West Bengal, (2015) 5 SCALE 319 ." 4. Nizam & Anr. v. State of Rajasthan, Criminal Appeal No. 413 of 2017, AIR 2015 SC 3430 , decided on 4.9.2015, the Hon'ble Apex Court held as under : "In case of circumstantial evidence, Court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links :- (i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body; and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution." 5. In the matter of D.B. Criminal Jail Appeal No. 833 of 2008, Narayan v. State of Rajasthan, decided on 27.2.2015, the Co-ordinate Bench of this Court has held that last seen evidence is one of species of circumstantial evidence. Last seen evidence as per Part III Section 7 of Indian Evidence Act, 1872, is relevant evidence against accused. For proving this evidence it is essential for the prosecution to prove two things, being that the accused was seen alone in company of deceased and at place where no other person is expected to interfere. Once this is proved burden of proof under Section 106, Indian Evidence Act, 1872, falls upon accused to prove his innocence. It is pertinent to mention that first burden of proof is on prosecution to prove above said elements and it is only after prosecution successfully proves them that burden shifts on accused to prove his defence. Last seen evidence does not by itself necessarily leads to inference that accused committed crime unless same is duly supported by other links in chain of circumstantial evidence unerringly pointing out guilt of accused. Theory of last seen together evidence is thus held to be not of universal application based on which conviction of accused can be sustained. It shall also be noted that last seen evidence is only relevant evidence to complete chain of circumstantial evidence; however, conviction cannot be based if complete chain is not so as to convict the accused. 6. Theory of last seen together evidence is thus held to be not of universal application based on which conviction of accused can be sustained. It shall also be noted that last seen evidence is only relevant evidence to complete chain of circumstantial evidence; however, conviction cannot be based if complete chain is not so as to convict the accused. 6. In the matter of Kalu Ram v. State of Rajasthan, in D.B. Criminal Appeal No. 490 of 2009, decided on 26.4.2016, the Coordinate Bench of this Court held as under : "It is settled principle of law that for conviction on circumstantial evidence, there must be transparent evidence so as to arrive with the finding that accused is guilty for committing offence of murder, but here in this case, evidence of last seen has been given by the interested witnesses PW-1 Bhagirath and PW-2 Raju, which is not supported by any other independent evidence of Sabir Khan and Rubina. The independent witness of last seen PW-5 Gangaram turned hostile and did not support the prosecution case, therefore, findings of Trial Court based upon the evidence of last seen produced by the prosecution become seriously doubtful." 7. In the matter of C. Muniappan & Ors. v. State of Tamil Nadu in Criminal Appeal Nos. 127-130 of 2008, AIR 2010 SC 3718, the Hon'ble Apex Court has held as under : "Holding the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is riot known to the witness or the complainant. (Vide State of H.P. v. Lekh Raj, AIR 1999 SC 3936)." 8. It is a rule of prudence which is required to be followed in cases where the accused is riot known to the witness or the complainant. (Vide State of H.P. v. Lekh Raj, AIR 1999 SC 3936)." 8. In the case of Sheo Raj v. State, AIR 1964 Allahabad 290, the Hon'ble Apex Court has held as under : "A memorandum of identification proceedings contains not only statements of the witnesses to the effect that such and such persons were the offenders but also many other facts, such as that the suspects were put up for identification mixed with so many persons that all precautions were taken, that the witnesses had no opportunity of communicating with one another during the identification, that the suspects were free to occupy any position in the parade, whether a witness pointed out the suspects in the first round or subsequently, the demeanor of witnesses, etc. These facts are not statements and a memorandum of them is not a memorandum to which Section 80 could, on any interpretation, apply and cannot be presumed to be genuine. If they have not been proved by the witnesses, who were present at the identification proceedings, they must be proved by the Magistrate." 9. In the matter of Ramadhar Chamar & Ors. v. State of Bihar, 1986 (34) BLJR 335, decided on 20.8.1985, it has been held that the learned Assistant Sessions Judge has convicted these appellants on the identification of these witnesses, which has been challenged by the learned Counsel for the appellants on the ground that these identification parades have not been legally proved in this case, I have already indicated above that neither the Magistrate who held the Test Identification Parade, nor any person on behalf of the prosecution has come forward to prove these T.I. charts. From the records of the case, it appears that the carbon copies of the identification charts have been marked as Exhibits No. 3 to 3/4. From the order-sheet of the case, it also appears that these carbon copies of the Test Identification charts have been marked as Exhibits 3 to 3/3 on 28.4.1980. In the order dated 28.4.1980 it is not mentioned as to who proved these documents. From the order-sheet of the case, it also appears that these carbon copies of the Test Identification charts have been marked as Exhibits 3 to 3/3 on 28.4.1980. In the order dated 28.4.1980 it is not mentioned as to who proved these documents. The Magistrate who prepared the test identification chart, has not been examined as witness in this case, and it is argued by the learned Counsel for the applicants that this identification report was not admissible in evidence without examining the learned Magistrate. I agree with this contention. On a mere perusal of this chart, I am construed to say that there is no evidence of identification of the appellants in the present case, I find that the learned Assistant Sessions Judge has convicted these appellants only by relying on these inadmissible evidence. In my view, where a chart of test identification is not proved by the Magistrate who held the T.I. parade and full particulars of the identification are not given by him, such report is no evidence of the identification. 10. In the matter of Irshad @ Risal v. State of Rajasthan, RLW 2006 (4) Raj. 2013, decided on 3.7.2006, the Coordinate Bench of this Court has held that evidently in the instant case the chart of identification parade is not proved by the Magistrate who held the identification parade and full particulars of identification parade are not given by him, therefore such report is not evidence of the identification and conviction of the appellant on the basis of such report is illegal. 11. In the matter of Vijender @ Bunty v. State of Haryana, Criminal Appeal No. D-231-DB of 2009, decided on 20.12.2012, it has been held that the only incriminating evidence against accused, as per prosecution version, is of the last seen and the recovery of purse and one photograph. The occurrence is of 30.4.2006 whereas appellant-accused was arrested in March, 2007. Why the accused will keep the empty purse etc. with him for such a long period. 9. Per contra, learned Public Prosecutor has submitted that the case is fully proved against the accused-appellants as there is proper evidence of last seen coupled with the recovery of 'Pickaxe' (Gainti) as well as recovery of bloodstained clothes from the accused-appellants. Learned Public Prosecutor further submitted that one sack of taat and handkerchief were also recovered from the possession of accused-appellants. Learned Public Prosecutor further submitted that one sack of taat and handkerchief were also recovered from the possession of accused-appellants. Learned Public Prosecutor further submitted that according to Forensic Science Laboratory (FSL) report, 'Pickaxe' (Gainti) and blood-stained clothes which were recovered from the possession of the accused-appellants, on these articles there was blood of human. Learned Public Prosecutor further submitted that the mould of accused's foot print and sole of the shoes matched exactly. Thus, the case is proved against the accused-appellants and no lenient view should be taken by this Court. 10. We have heard learned Counsel for the appellants as well as learned Public Prosecutor appearing for the State and carefully scanned the entire material made available to the Court including the record of the case. 11. This is a case of circumstantial evidence and from the material available on record it is clear that there is no eye-witness of the occurrence in this case. The police recorded the statements of Mahendra Kumar Yadav, Lala Ram, Surajmal, Hanuman Singh and Yadram, who are said to be the witnesses of last seen. We, first of all deal with the circumstance of last seen. Witnesses of last seen examined in Court were Mahendra Kumar Yadav (PW-8), Lala Ram Saini (PW-9), Surajmal (PW-11), Hanuman Singh (PW-12) and Yadram (PW-13). All these witnesses had not supported the story of prosecution and they had been declared hostile by the prosecution. The theory of last seen cannot be held proved against the accused-appellants. No other witness has been examined by the prosecution to prove their case about the last seen. This factor goes against the prosecution and theory of last seen also does not connect the present accused-appellants with the crime. 12. Both the accused-appellants were arrested by the Police on 3.6.2010. The test identification parade was held on 24.6.2010 which was held quite late. In the test identification parade, two witnesses Surajmal (PW-11) and Hanuman Singh (PW-12), identified accused appellants, but before the learned Trial Court, both the witnesses did not support the case of the prosecution and thus they were declared hostile. It may be submitted here that learned Magistrate in whose presence the test identification parade was held, was not examined by the prosecution. This is a material lacuna on the part of the prosecution. Thus the theory of test identification parade also goes against the prosecution. 13. It may be submitted here that learned Magistrate in whose presence the test identification parade was held, was not examined by the prosecution. This is a material lacuna on the part of the prosecution. Thus the theory of test identification parade also goes against the prosecution. 13. Now we have come to the recovery part, which was made from possession of the accused-appellants. Both the accused-appellants were arrested by the Police on 3.6.2010. An information regarding the sack of taat and handkerchief was given to the Police by both the accused on 5.6.2010. In pursuance of this information made by the accused under Section 27 of the Evidence Act, a joint recovery was made from both the accused-appellants on 5.6.2010 about sack and handkerchief. According to the recovery memo Ex.P-6 it was mentioned that this recovery was made from the hole which was in the boundary wall of the temple. The sack and the handkerchief were recovered in the presence of Vinod Kumar (PW-5). This witness mentioned in the cross-examination that these recoveries were made from the tank of water, which was empty. The another witness of recovery Sandeep Kumar (PW-20) said that these recoveries were made from empty tank. But the aforesaid witnesses have not been declared hostile. Likewise in site inspection Ex.P-16 it has been mentioned that both these articles were recovered from the corner of the temple. According to the Forensic Science Laboratory (FSL) report Ex.P-15, the sack had no blood stains and blood of human origin was found on the handkerchief. Malkhana Register was not produced by the prosecution. The seal of the articles was intact or not till it reached to the FSL, is itself doubtful. There is no proper and linking evidence in the Malkhana Register. There is every possibility of tempering with these articles. 14. A joint recovery of 'Pickaxe' (Gainti) was also made from the present appellants. It may be submitted here that the occurrence had taken place on 20.5.2010 and these accused-appellants were arrested on 3.6.2010 and in pursuance of the information given by these accused-appellants under Section 27 of the Evidence Act, a joint recovery was made from the possession of the present appellants which is marked as Ex.P-7 dated 5.6.2010 and according to the Forensic Science Laboratory (FSL) report Ex.P-15 only human origin blood was found and there is no matching of blood from that weapon. This recovery was delayed one. The delay was not at all explained by the prosecution. It is ambiguous, why the accused kept those blood stained articles with them. Malkhana Register was not produced by the prosecution. It cannot be said that the articles which reached to the Forensic Science Laboratory (FSL) were properly sealed. So joint recovery of 'Pickaxe' (Gainti) is not believable at all. 15. The accused were arrested on 3.6.2010 and from their information under Section 27 of the Evidence Act, a recovery of clothes was made by the Police on 9.6.2010 from the possession of accused appellants. From Ex.P-32 Sanju Singh and Ex.P-33 Hemraj dated 9.6.2010 this recovery was made after considerable delay. According to the Forensic Science Laboratory (FSL) report Ex.P-115, only human origin blood was found from their clothes and no matching of blood group was found from the clothes. 16. It may be submitted here that Malkhana Register was not produced. So it is very much doubtful that till they reached the FSL, these articles were properly sealed and intact. These documents thus become highly doubtful, which goes to the root of the prosecution. So this circumstance is also in favour of the accused-appellants. 17. Now we may come to the foot mould. The foot mould was taken from the campus of the temple on 21.5.2010 at 2:30 PM by Hemraj (PW-25) (Constable) and Banwari Lal (PW-15). Ramanand (PW-26) was attesting witness. According to the Ex.P-27 of this foot print taken by Hemraj Constable, a perusal of Ex.P-27 it is no where mentioned that this foot mould was sealed or seized properly at that time. The accused Hemraj was arrested on 3.6.2010. He gave information to the Police on 5.6.2010 that at the time of occurrence, the shoes he was wearing were kept in his house. In pursuance of this information one pair of shoes was recovered by the police on 5.6.2010 which is Ex.P-31. This mould report Ex.P-113 was on record. It has been mentioned that the mould article was received unsealed. It may be submitted here that when Police took foot mould from the site, the Constable Hemraj had not seized and sealed. So no reliance can be placed in such a type of evidence and report of the mould cannot be read against the accused-appellants. It has been mentioned that the mould article was received unsealed. It may be submitted here that when Police took foot mould from the site, the Constable Hemraj had not seized and sealed. So no reliance can be placed in such a type of evidence and report of the mould cannot be read against the accused-appellants. In this case, Malkhana Register was also not produced by the prosecution and no description of foot moulds in Ex.P-4 in site plan was mentioned. Thus, the report of the mould cannot be read against the accused-appellants. This goes against the prosecution and the benefit directly goes to the accused-appellants. 18. The Court below acquitted the accused-appellants for the offence under Section 302 I.P.C. but convicted the accused-appellants for the offence under Section 460 I.P.C. The Trial Court acquitted co-accused Kamlesh @ Kamal from all the offences in this case and also acquitted the appellants in the main offence under Section 302 I.P.C., but the appellants were convicted and sentenced by the learned Trial Court under Sections 460 and 380 I.P.C. without assigning any cogent reason, which is absolutely against the law and the facts of the case. 19. In view of above discussion, both the appeals deserve to succeed and are accordingly allowed. The impugned judgment of conviction and sentence of accused-appellants dated 7.4.2014 is set aside. The accused-appellants Hemraj and Sanju Singh are acquitted of the charges for offence under Sections 460 and 380 I.P.C. They be set at liberty forthwith, if not required to be detained in connection with any other case. 20. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.