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2018 DIGILAW 1202 (RAJ)

Mohan Lal @ Kalu v. State of Rajasthan

2018-05-08

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT AND ORDER : Sangeet Lodha, J. 1. These appeals are directed against the judgment and order dated 29.9.15 of learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 2/13, whereby the accused appellants Mohan Lal and Sushil Kumar were convicted for offences under Sections 302/34, 364, 392 & 201 IPC and sentenced as under:- U/s. 302/34 IPC Life imprisonment with fine Rs. 5,000/- in default of payment of fine, to suffer additional rigorous imprisonment of three months. U/s. 364 IPC 10 years' rigorous imprisonment with fine Rs. 3,000/- in default of payment of fine to suffer additional rigorous imprisonment of two months. U/s. 392 IPC 5 years' rigorous imprisonment with fine Rs. 2,000/- in default of payment of fine to suffer additional rigorous imprisonment of one month. U/s. 201 IPC 5 years' rigorous imprisonment with fine Rs. 2,000/- in default of payment of fine to suffer additional rigorous imprisonment of one month. The sentences awarded were directed to run concurrently. 2. Precisely, the prosecution story is that on 23.10.12, PW-4 Gopi Ram lodged a written report (Ex.P/11) at Police Station, Pilibanga, stating that his son in law, who is resident of Ward No. 5, Pilibanga drives three wheeler Tempo RJ-13-1976. On 21.10.12 he was standing with the tempo at the Old Bus Stand. Two persons who work in Brick Kiln approached Sonu and told him to bring four goats from Jaitsar. On this, at around 5 P.M. Sonu went alongwith them towards Suratgarh but did not return. On search being made, he could not be traced out and his mobile phone was switched off. On the basis of the written report (Ex.P/11), the police registered the missing report M.P.R. No. 07/12. Later, on 2.11.12 around 3.05 P.M., PW-1 Krishna Lal, the father of Sonu, submitted a written report (Ex.P/1) to the SHO, Police Station, Pilibanga, stating that one month before he had gone alongwith his son Ramesh to Khinvsar in Nagaur District for picking Narma. His son Sonu used to live alongwith his wife in the house of Ramesh Sarwata on rent and used to drive three wheeler RJ-13-PA-1976 of Amilal Bavari. On 21.10.12, around 4 P.M. two persons took Sonu alongwith tempo on fare basis and when he did not return, Sonu's father in law Gopiram had lodged a missing report at Police Station, Pilibanga. On 21.10.12, around 4 P.M. two persons took Sonu alongwith tempo on fare basis and when he did not return, Sonu's father in law Gopiram had lodged a missing report at Police Station, Pilibanga. The persons who hired Sonu's tempo were seen by the tempo drivers Navin, Tejpal etc. The physic of the persons hiring the tempo was described in the written report (Ex.P/1). It was stated that the mobile phone of Sonu bearing no. 8003866459 sounds switched off since 21.10.12. It was stated that Sonu has been abducted by unknown persons with a view to steal three wheelers and goods. He casted doubt that those persons while taking away Sonu somewhere have killed him. 3. On the basis of the written report (Ex.P/1), the police registered the FIR (Ex.P/2) for offence under Section 364/34 and the investigation commenced. 4. After completion of the investigation, the police filed the charge sheet against the accused appellants Mohanlal and Sushil Kumar for offences under Sections 364, 392, 302/34 IPC before the Judicial Magistrate, Pilibanga. The matter was committed to the court of Sessions Judge, Hanumangarh, which was later transferred to Additional Sessions No. 2, Hanumangarh for trial. 5. The learned trial Judge framed the charges against the appellants for offences under Sections 364, 302/34 & 392 IPC. Later while amending the charges, the charge for the offence under Section 201 IPC was added. 6. During the trial, the prosecution got examined as many as 21 witnesses (PW-1 to PW-21) and the documentary evidence was exhibited as Ex. P/1 to P/61 including Ex.P/8A, Ex.P/10A, Ex.P/11A, Ex.P/11B, Ex.P/11C, Ex.P/21A, Ex.P/22A, Ex.P/23A, Ex.P/24A, Ex.P/25A, Ex.P/26A, Ex.P/27A, Ex.P/28A, Ex.P/29A, Ex.P/48A, Ex.P/54A, Ex.P/57A, Ex.P/58A, Ex.P/59A & Ex.P/60A. 7. The accused were examined under Section 313 Cr.P.C. wherein they reiterated their innocence and stated to have been falsely implicated. They declined to have furnished any information and denied the recovery having been effected at their instance. No evidence was led in defence. 8. After due examination of the evidence on record and consideration of the rival submissions, the learned trial Judge convicted the accused appellants for offences under Sections 364, 392, 302/34 & 201 IPC and awarded the sentences as indicated above. Hence, these appeals. 9. No evidence was led in defence. 8. After due examination of the evidence on record and consideration of the rival submissions, the learned trial Judge convicted the accused appellants for offences under Sections 364, 392, 302/34 & 201 IPC and awarded the sentences as indicated above. Hence, these appeals. 9. Learned counsel appearing for the appellants contended that there was absolutely no cogent, convincing and reliable evidence on record to substantiate the guilt of the accused appellants and thus, the findings arrived at by the learned trial Judge holding the accused appellants guilty of the charges are ex facie perverse. Learned counsel submitted that there was no direct evidence against the appellants and the circumstantial evidence brought on record in no manner connect the accused appellants with the commission of offences. Learned counsel would submit that the last seen evidence was not reliable inasmuch as, the identification parade was not conducted in the fair manner. Learned counsel submitted that even otherwise merely because the appellants hired the vehicle of the deceased Sonu, in absence of any other circumstantial evidence, the appellants could not have been held guilty of the charges levelled against them. Learned counsel would submit that M.P.R. was lodged with delay of two days and the FIR was lodged after inordinate delay of ten days, which remained unexplained. Learned counsel submitted that the prosecution has failed to prove that dead body recovered was of deceased Sonu and the factum of homicidal death is also not proved. Learned counsel submitted that the weapon of offence is not recovered and the tempo was recovered from an open place and not from the conscious possession of the appellants. The mandatory provisions of Section 100 Cr.P.C. were not followed. The police had taken the foot mould prints but the same were not sent for examination to Forensic Science Laboratory. The verification of the place of occurrence at the instance of the appellants when no incriminating evidence was found against them, cannot be made basis for the conviction of the accused appellants. Learned counsel submitted that the inference of the guilt on the basis of circumstantial evidence can be justified only when all the incriminating facts and circumstances are found to be consistent only with the guilt of the accused. Learned counsel submitted that the inference of the guilt on the basis of circumstantial evidence can be justified only when all the incriminating facts and circumstances are found to be consistent only with the guilt of the accused. Learned counsel submitted that on the basis of the evidence which has come on record, the chain of the circumstances is not established; no inference of guilt of the accused can be drawn and therefore, the appellants deserve to be acquitted of the charges. 10. On the other hand, learned Public Prosecutor supporting the impugned judgment submitted that on the basis of the record it stands established beyond reasonable doubt that the accused appellants hired the tempo of Sonu and they have been identified by the witnesses PW-2 Teja Ram, PW-3 Navin and PW-5 Rajendra Kumar and thus, the finding arrived at by the learned trial Judge regarding the deceased being last seen with the accused appellants cannot be faulted with. Learned Public Prosecutor submitted that as per the information furnished by the accused appellants, the place of occurrence was verified vide Ex.P/3 and at the place of occurrence, the foot moulds were found. Learned Public Prosecutor submitted that it is absolutely incorrect that the dead body of the deceased Sonu was not identified. Drawing the attention of the court to the evidence on record, learned Public Prosecutor submitted that PW-1 Krishna Lal had identified the dead body of his son Sonu on the basis of his pent, underwear, mark of injury on the right leg and teeth and thus, the contention sought to be raised on behalf of the appellants that the dead body of Sonu was not identified is absolutely baseless. Learned Public Prosecutor submitted that since the body was in decomposed position, the cause of death could not be detected but the incriminating circumstances on record, which stand established on the basis of cogent evidence on record indicate towards the guilt of the accused. Learned Public Prosecutor submitted that the guilt of the accused appellants further stands fortified from the duly certified call details exhibited in evidence. 11. We have considered the rival submissions and scanned the evidence on record carefully. 12. Indisputably, the body of the deceased Sonu recovered from Main Indira Gandhi Canal was in decomposed condition. The autopsy of the dead body was conducted by PW-21 Dr. Amar Singh. 11. We have considered the rival submissions and scanned the evidence on record carefully. 12. Indisputably, the body of the deceased Sonu recovered from Main Indira Gandhi Canal was in decomposed condition. The autopsy of the dead body was conducted by PW-21 Dr. Amar Singh. A perusal of the post mortem report (Ex.P/61) reveals that except some body parts and some muscles, the entire body stood decomposed and therefore, the doctor opined that mode of death and cause of death could be given only after chemical examination report. As per FSL report, humerus bone of the deceased was sent in sealed packet marked as 'A' to the FSL for chemical examination. After examination, all that has been opined by the forensic expert is that on chemical examination, the right humerus bone sent for examination gave negative tests for metallic poison. PW-21 Dr. Amar Singh has categorically deposed that the dead body was in totally decomposed condition and therefore, it was not possible to know the cause of the death. Suffice it to say that there was no evidence suggesting that death of Sonu was homicidal in nature. 13. That apart, as per the prosecution, the body recovered was identified by PW-1 Krishnalal, the father of deceased Sonu, inter alia on the basis of the injury on the right leg and teeth of the deceased whereas, PW-21 Dr. Amar Singh has deposed that he did not notice any mark on both the legs, fingers and thumbs or any part of the body. 14. Admittedly, there is no direct evidence and the prosecution case is founded on circumstantial evidence. The prosecution at the trial has placed reliance on following circumstances so as to establish the guilt of the appellants: (i) The deceased Sonu was last seen with the accused persons, the appellants herein, by PW-2 Tejram (Tejpal), PW-3 Navin and PW-5 Rajendra Kumar at the time when the tempo of deceased was hired by them for carrying their goats from Birwana to Kechia. (ii) The accused being identified by PW-2 Tejram, PW-3 Navin and PW-5 Rajendra Kumar during the identification parade as also before the court. (iii) The call details of Mobile Nos. 9694055464, 9571610640, 9785170471 and 9509641334. (iv) The recovery of the tempo pursuant to information furnished by the accused appellants under Section 27 of Evidence Act. (v) The verification of place of occurrence at the instance of the appellants. 15. (iii) The call details of Mobile Nos. 9694055464, 9571610640, 9785170471 and 9509641334. (iv) The recovery of the tempo pursuant to information furnished by the accused appellants under Section 27 of Evidence Act. (v) The verification of place of occurrence at the instance of the appellants. 15. It is settled law that before conviction on proof of circumstantial evidence, the following triad tests must be satisfied:- (i) that the circumstances from which an inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt. (ii) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused. (iii) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him (vide Mahmood vs. State of U.P. (1976) AIR (SC) 69). 16. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR (SC) 1622, the Hon'ble Supreme Court laid down following five golden principles named as "panchsheel" of the proof of a case based on circumstantial evidence: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (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. (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. 17. In Ramreddy Rajshekhanna Reddy vs. State of Andhra Pradesh, (2006) 3 Supreme 175 , the Apex Court held as under:- "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence." 18. Thus, in the backdrop of principles settled as noticed above, we have to adjudge as to whether the circumstances on which the prosecution relies are established by clear and cogent evidence beyond the reasonable doubt and whether the cumulative effect of the circumstances said to be proved exclude every other hypothesis save the one that the appellants are guilty of the charge imputed. 19. As per the prosecution, the deceased was last seen in the company of the accused by PW-2 Tejram, PW-3 Navin and PW-5 Rajendra Kumar. PW-2 Tejram deposed that he knew Sonu who used to operate tempo on fare basis. On 21.10.12 around 4.20 P.M. he was present at the Stand and at that time two persons came to Sonu to hire the tempo for carrying their four goats to a Kiln from Beerwana to Kechia. On being asked by Sonu, he disclosed the fare for the travel as Rs. 700/- however, Sonu settled the fare at Rs. 550/-. Thereafter, both the persons took away Sonu alongwith tempo. The accused appellants present in the court were identified by PW-2 Tejram as the persons who hired the tempo. In cross examination, PW-2 Tejram deposed that Sonu was member of the Tempo Union which used to maintain a register wherein the number of the person hiring the vehicle, the name of the driver, the place to which the vehicle was being taken and the amount of fare were required to be entered. However, no such entry was made in this regard in the register on 21.10.12. He deposed that he had gone with the police on the dates 23rd, 24th and 25th, in search of Sonu and the persons who hired the vehicle. After 7-8 days from the date of occurrence police apprised him that the persons who hired Sonu's tempo have been traced out and then he went to the Police Station accompanied by some more tempo owners. Sonu's family members, his father in law, father and brother also went to the Police Station. After 7-8 days from the date of occurrence police apprised him that the persons who hired Sonu's tempo have been traced out and then he went to the Police Station accompanied by some more tempo owners. Sonu's family members, his father in law, father and brother also went to the Police Station. However, he denied the suggestion that the accused persons were shown to him in Police Station prior to identification parade before the Magistrate. 20. PW-3-Navin Kumar deposed that on 21.10.12 around 4 P.M. when he was alighting the passengers from Longwala at Pilibanga Nehru Dharamshala, at that time, the accused present in the court had asked him for hiring the tempo to bring their four goats from Beerwana and he disclosed the fare as Rs. 900/-. They asked him to charge reasonable fare, thereupon, he told them to talk in this regard after coming back from Bus Stand. He deposed that when he came back, the accused persons were not found. He had seen them carrying Sonu's tempo towards Suratgarh. He deposed that he had identified the accused in jail. In cross examination, he deposed that the accused were caught by the police. Tejpal and other union office bearers had gone to Police Station. He denied to have seen the accused persons sitting in the Police Station. However, he categorically deposed that SHO had called him and Tejpal for signature to the Police Station. The SHO told them that for the identification of accused, they are required to go to Hanumangarh. He denied that before identification, the accused persons were shown to him and Tejpal by the police. 21. PW-5-Rajendra Kumar deposed that on 21.10.12 he had gone to Bikaner to check the electricity work and while returning he had came in a car upto Chattargarh Nahar Bridge, alighted there and had taken tea and a tablet for headache, at a hotel. Sonu in his tempo alongwith two more persons reached there; one boy was wearing white shirt, black paint and a cap whereas other person was wearing blue shirt. One boy went to the bathroom in the back of the hotel and other kept sitting in the tempo. Sonu had apprised him that he alongwith those persons had to go Veerwana to bring four goats. He identified the accused persons present in the court as the persons accompanying Sonu. One boy went to the bathroom in the back of the hotel and other kept sitting in the tempo. Sonu had apprised him that he alongwith those persons had to go Veerwana to bring four goats. He identified the accused persons present in the court as the persons accompanying Sonu. In cross examination, he deposed that he knows Tejpal, Navin and other tempo drivers. He denied to have participated in the identification parade of the accused. 22. But then, PW-1 Krishnalal, the father of deceased Sonu, has categorically deposed that when he reached Police Station, the SHO while showing the accused persons to him told that these are the persons who committed the crime. He further deposed that Navin and Tejpal were also present at the time in the Police Station. 23. Similarly, PW-4 Gopiram, the father in law of the deceased, deposed that the accused were arrested in the month of November. On 1.11.12 he had gone to Police Station, Navin and Tejpal were also called and Krishnalal was also accompanying and at that time, the accused were sitting in the Police Station. 24. As per PW-19 Kartar Singh, the SDM, Pilibanga who conducted the identification parade of the accused appellants herein deposed that when he reached to jail, the accused and the witnesses were called. In the first instance, accused Mohanlal and seven other prisoners were called by name and they were lined up. Thereafter, accused Sushil and other seven persons were called by the Jailor, they were got separated and lined up. Thus, apparently, at the time of identification parade, the identity of the accused persons stood disclosed to the witnesses. 25. It is pertinent to note that the identification parade (Ex.P/11) was conducted on 7.11.12 before the Sub Divisional Magistrate, Pilibanga. However, a conjoint reading of the deposition of the witnesses PW-1 Krishnalal, PW-2 Tejpal, PW-3 Navin and PW-4 Gopiram, leads to the conclusion that PW-2 Tejpal and PW-3 Navin had gone to the Police Station on 1.11.12 and they had already seen the accused persons who were sitting in the Police Station at that time. Further, as per deposition of PW-19 Kartar Singh, the identity of the accused stood disclosed to the witnesses before the identification parade. Admittedly, PW-5-Rajendra Kumar did not participate in the identification parade so as to identify the accused persons. Further, as per deposition of PW-19 Kartar Singh, the identity of the accused stood disclosed to the witnesses before the identification parade. Admittedly, PW-5-Rajendra Kumar did not participate in the identification parade so as to identify the accused persons. In this view of the matter, the identification parade conducted before the Sub Divisional Magistrate on 7.11.12 cannot be considered to be fair and reliable. The accused persons having already been shown to PW-2 Tejpal and PW-3 Navin, their identification by these witnesses before the court is also not of any evidentiary value. Consequently, the circumstantial evidence of 'last seen' led by the prosecution is not found reliable. Moreover, the circumstances of 'last seen' does not by itself necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connection between accused and crime, that points to the guilt of the accused and none less [vide Kanhaiyalal vs. State of Rajasthan, (2014) 4 SCC 715 ]. 26. Coming to the call details, it is pertinent to note that there is nothing on record to show as to how the call details brought on record as Ex.P/34, P/37 & P/39 connect the accused persons with the commission of crime. Further, no evidence with regard to call details could be proved unless the competent officer of concerned cell phone company came forward to prove the same in the proceedings as per Section 65 B (4) of the Indian Evidence Act (for short "the Act"). The certificate (Ex.P/44) of Kamlesh Kumar, Constable, annexed with the details in no manner could be construed to be requisite certificate as mandated by the provisions of sub-section (4) of Section 65B of the Act. In absence of the certificate requisite under the provisions of the Act and failure to examine the competent officer in evidence by the prosecution, the call details even otherwise cannot be believed. [vide Toofanmal Jat and Another vs. State of Rajasthan, 2018 2 Cri. LR 577 (Raj.)]. As a matter of fact, for these reasons even the trial court has not found the call details to be an incriminating circumstances against the accused appellants. 27. As per the prosecution, the place of occurrence was verified pursuant to the information supplied on behalf of the accused Sushil Kumar and Mohanlal. LR 577 (Raj.)]. As a matter of fact, for these reasons even the trial court has not found the call details to be an incriminating circumstances against the accused appellants. 27. As per the prosecution, the place of occurrence was verified pursuant to the information supplied on behalf of the accused Sushil Kumar and Mohanlal. It is a matter of record that the place of occurrence was already known to the police inasmuch as, it is the same place from where the dead body of the deceased was recovered and therefore, the verification of the place by the accused which was already known to the police has no evidentiary value. 28. Lastly, coming to the recovery of tempo at the instance of the accused, as per prosecution, the accused Mohanlal and Sushil Kumar furnished the information regarding tempo three wheeler vide Ex.P/45 & P/46 respectively and pursuant to the information furnished, the tempo was recovered from the open place lying under a 'khejari' (ghaf) tree near Bajrang Dhora, Hanuman Mandir, Bikaner vide recovery memo Ex.P/47. Admittedly, the tempo was recovered from the open place and not from conscious possession of the accused persons. It is pertinent to note that witnesses of the recovery PW-6-Amilal and PW-17 Dharampal Singh, ASI were examined by the prosecution but they have not uttered a single word regarding the said recovery being effected in their presence. In this view of the matter, such recovery effected from open place, which is not duly proved, cannot be given any credence. 29. Thus, on the facts and in the circumstances of the case, none of the incriminating circumstances set out by the prosecution are proved beyond reasonable doubt and in absence of any other circumstances or chain of event suggesting the involvement of the appellants in the commission of the crime, they cannot be held guilty. Suffice it to say that in absence of any circumstances consistent only with hypothesis of the guilt of the accused being proved beyond reasonable doubt, the learned trial Judge has erred in convicting the accused appellants for the offences charged. 30. In the result, the appeals succeed, the same are hereby allowed. The impugned judgment dated 29.9.15 of learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 2/13 is set aside. 30. In the result, the appeals succeed, the same are hereby allowed. The impugned judgment dated 29.9.15 of learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 2/13 is set aside. The appellants Mohanlal and Sushil Kumar are acquitted of the charges and directed to be released forthwith, if they are not required in any other case. However, the accused appellants Mohanlal and Sushil Kumar shall furnish personal bond of Rs. 25,000/- each and a surety in the like amount to the satisfaction of the learned trial court in terms of provisions of Section 437-A Cr.P.C.