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2017 DIGILAW 1540 (RAJ)

Bhagirath v. State Of Rajasthan

2017-07-11

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

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JUDGMENT Kanwaljit Singh Ahluwalia J. (Oral) - None was present on behalf of the appellant on 09.06.2017. 2. Today also, there is no representation on behalf of the appellant. 3. In the present appeal, the record was requisitioned from the trial Court. The same has been received and, hence, we proceed, after perusal of the record, to decide the present appeal with able assistance rendered by Mr. B.N. Sandu, Id. A.A.G. cum P.P. appearing on behalf of the State of Rajasthan. 4. Bhagirath son of Mangalya by caste Mali, resident of Dhani Thoth Tan, Bhandarej, Police Station Dausa District Jaipur has preferred present appeal in order to assail the impugned judgment dated 22.12.1988 rendered by the Court of Additional District & Sessions Judge, Dausa District Jaipur, whereby the appellant was held guilty of offences punishable under Sections 302 and 394 of Indian Penal Code. 5. Having convicted the appellant for the above said offences, the trial Judge, vide a separate order of even date, sentenced the appellant as under:- "For offence under Section 302 I.P.C. appellant was sentenced to undergo life imprisonment. For offence under Section 394 I.P.C. appellant was sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo three months simple imprisonment. Both the sentences were ordered to run concurrently" 6. The Court of Additional District & Sessions Judge, Dausa District Jaipur on 04.02.1988 charged the appellant for offence punishable under Section 302 I.P.C. The said charge stated that on the intervening night of 2nd & 3rd October, 1987 at any time in the night the appellant near Lakhera Wali drain committed murder of Smt. Ganga, aged sixty-years by causing her injuries with kulhari and thereby amputated her hands & feet and, thus, committed offence punishable under Section 302 I.P.C. The second charge stated that on the said date and time, the appellant committed robbery of the jewellery and silver bracelets and anklets from the hands and feet of Smt. Ganga and, thus, committed offence punishable under Section 394 I.P.C. 7. The appellant denied both the charges and claimed trial. 8. The criminal proceedings, in the present case, were set into motion on the basis of written-report (Exhibit-P/16) submitted by Sitaram Morya (PW-4), Sarpanch of Gram Panchayat, Bhandarej before Kanwardheer Mehta (PW-8), who was then posted as Station House Officer, Police Station, Dausa. The appellant denied both the charges and claimed trial. 8. The criminal proceedings, in the present case, were set into motion on the basis of written-report (Exhibit-P/16) submitted by Sitaram Morya (PW-4), Sarpanch of Gram Panchayat, Bhandarej before Kanwardheer Mehta (PW-8), who was then posted as Station House Officer, Police Station, Dausa. 9. Sitaram Morya (PW-4) on the said date was Sarpanch of Village Bhandarej. In the written-report (Exhibit-P/16), he stated that the dead-body of an unidentified lady is lying near the Village drain and the hands and feet of such unidentified lady have been amputated by some unidentified persons. 10. As is apparent, it is a case of blind murder. 11. The case of prosecution rests on circumstantial evidence. 12. The prosecution, in order to secure the conviction of the appellant, in all, examined ten witnesses, namely Ramhet (PW-1), Budha (PW-2), Dr. Jitendra Joshi (PW-3), who had conducted autopsy on the dead-body, Sitaram Morya (PW-4), who had lodged written report (Exhibit-P/16), Bansi (PW-5), Muli (PW-6), Mulya (PW-7), Kanwardheer (PW-8), Investigating Officer, Constable Ganeshdutt (PW- 9) and Constable Suresh Chand (PW-10) respectively. 13. Admittedly, Smt. Ganga had died due to violence. 14. Dr. Jitendra Joshi (PW-3) on 03.10.1987 had conducted autopsy on the dead-body of Smt. Ganga. 15. We need not reproduce the injuries noted by Dr. Jitendra Joshi (PW-3), as the same have been noted in the impugned judgment and it is not in dispute that because of injuries caused Smt. Ganga had died. 16. Ramhet (PW-1) during investigation, had attested memo (Exhibit-P/1), whereby accused got recovered clothes of the deceased. He had also attested memo (Exhibit-P/2), whereby accused got recovered jewellery and the silver anklets worn by the deceased. This witness had also attested Exhibit-P/3 and Exhibit-P/4 of the site-plan of the spot from where recoveries were affected. However, this witness in the Court turned hostile and has not supported the prosecution, qua the recoveries effected, during investigation. The witness in the Court has stated that the accused got nothing recovered in his presence. The witness stated that the Police had obtained his signatures in the field. The accused had not got recovered silver anklets & bracelets in his presence. The witness further stated that Bhagirath, accused was not arrested in his presence. Lastly, this witness was declared hostile by the learned Public Prosecutor and he was confronted with his previous statement. 17. The witness stated that the Police had obtained his signatures in the field. The accused had not got recovered silver anklets & bracelets in his presence. The witness further stated that Bhagirath, accused was not arrested in his presence. Lastly, this witness was declared hostile by the learned Public Prosecutor and he was confronted with his previous statement. 17. Budha (PW-2) had attested Inquest proceedings (Exhibit- P/5). This witness in no way has advanced the case of prosecution, except he had identified the dead-body of Smt. Ganga. 18. Sitaram Morya (PW-4), Sarpanch of the Village had only informed the Police regarding the presence of dead-body near the drain. 19. He had attested the site-plan (Exhibit-P/17) of the spot. This witness has not stated anything incriminating against the accused. Bansi (PW-5) in the Court stated that he is not aware, whether Police had arrested accused or not. This witness specifically stated that in his presence, no recovery of kulhari was affected from the accused. This witness stated that neither Police prepared any document in his presence nor he had appended his thumb impression thereupon. Thus, this witness was also declared hostile to the prosecution. 20. Muli (PW-6) in the Court stated that she had not seen nothing. She had not seen Bhagirath near the place of occurrence. She was also declared hostile to the prosecution. 21. Mulya (PW-7) in the Court stated that on the day of Dashera, accused came to him, took away his kulhari and had returned the same. Later-on, this witness stated that on next day, Police came and took away kulhari. This witness, thus, demolished the case of the prosecution that the accused got kulhari recovered. 22. Kanwardheer (PW-8), being Investigating Officer of the case, proved various facets of the investigation. 23. Ganeshdutt (PW-9), being Constable had taken written report (Exhibit-P/16) to the Police for registration of a formal First Information Report (Exhibit-P/19). 24. Suresh Chand (PW-10), being Constable had carried the case property to the Forensic Science Laboratory. 25. This is a unique case where no witness has stated a word against the appellant. No incriminating evidence has been brought on record by the prosecution. All witnesses to the recovery of articles and weapon of offence have turned hostile to the prosecution. The witness regarding the last seen has also turned hostile to the prosecution. 25. This is a unique case where no witness has stated a word against the appellant. No incriminating evidence has been brought on record by the prosecution. All witnesses to the recovery of articles and weapon of offence have turned hostile to the prosecution. The witness regarding the last seen has also turned hostile to the prosecution. Except the statement of the Investigating Officer, there is no evidence with the prosecution. Merely on the basis of the statement made by the Investigating Officer, we cannot sustain the conviction of the appellant. 26. As a result of the above discussions, the present appeal is, hereby, accepted. The conviction and sentence of the appellant are set aside. He is acquitted of the charges. 27. The appellant, who is already on bail shall be called upon by the trial Judge to execute the bail bonds and the bonds by the sureties to comply with the provisions of the Section 437-A Cr.P.C.