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2018 DIGILAW 2193 (RAJ)

Manish @ Mikky v. State

2018-11-13

MANOJ KUMAR GARG, PRADEEP NANDRAJOG

body2018
JUDGMENT Pradeep Nandrajog C.J. - Charged for having murdered Shakuntala Tak at around 12 noon in House No.46, Sector 23, CHB, Jodhpur on 24.4.2007, the appellant has been held guilty vide impugned judgment dated 22.11.2008. The charge for having committed an offence punishable under Section 449 IPC has also been sustained. For the offence of murder, the appellant has been directed to undergo imprisonment for life and pay fine in sum of Rs. 1,000/-, in default to undergo simple imprisonment for two months. For the offence punishable under Section 449 IPC he has been sentenced to undergo RI for a period of 10 years and pay fine in sum of Rs. 1,000/-, in default to undergo simple imprisonment for two months. 2. Process of criminal law was set into motion when Rajesh Tak PW-3, son of the deceased Shakuntala Tak, reported at Police Station Chopasni Housing Board on 24.4.2007 in the late after-noon and informed that alongwith his parents he resides in House No.46, Sector 23, CHB, Jodhpur. That he was a lawyer and left for the Court at 8.00 AM in the morning. His parents were in the house when he left. When he returned to the house at around 1.15 PM he saw a lock on the main door. Whenever his mother left the house after locking it she would leave the key with the neighbour. He contacted the neighbour who told him that the key was not left by his mother. He tried to contact his mother on a mobile phone kept in the house but the same was switched off. He waited till 2.00 PM and went to a General Store to purchase an iron-saw and using the same he broke the lock. When he entered the house he found his mother lying dead smeared in blood. 3. FIR for offence of murder was registered. Investigation was taken over by Sarwar Ali, PW-19, SHO of Police Station Chopasni Housing Board, Jodhpur. Alongwith the crime team he reached the scene of the crime. He got the room photographed. He lifted blood stained clothes and seized them. He seized the broken lock vide memo Ex.P/9. The body of the deceased was sent for post mortem. Dr.M.P.Joshi, PW-10 conducted the post mortem and prepared the post mortem report Ex.P/43. The same records stab injuries, bruises and abrasions on the dead body of the deceased. He got the room photographed. He lifted blood stained clothes and seized them. He seized the broken lock vide memo Ex.P/9. The body of the deceased was sent for post mortem. Dr.M.P.Joshi, PW-10 conducted the post mortem and prepared the post mortem report Ex.P/43. The same records stab injuries, bruises and abrasions on the dead body of the deceased. A ligature mark on the neck with extra-vasation of blood underneath was detected. Cause of death is hemorrhagic shock due to multiple injuries with attempt of strangulation. 4. In a supplementary statement made by Rajesh Tak after he had lodged the complaint based whereon the FIR was registered, the appellant became a suspect because Rajesh Tak informed that the appellant, who is son of his real maternal uncle, had spoken to him twice in the morning. The appellant was arrested the next day i.e. on 25.4.2007. As per Sarwar Ali PW-19 he got appellant medically examined by Dr.Jagdish Jugtawat, PW-17, who prepared the MLC P/46. As per the MLC, 3 abraded bruises on the right hand above the wrist, middle of the 5th metacarpal of the little finger and on the right index finger were noted. Abraded bruises on the left dorsal side of the left hand little finger were also noted. The injuries were opined to be between 2 to 4 days old. 5. Rajesh Tak handed over his Nokia mobile phone having mobile No.9413249534 which was seized vide memo Ex.P/14. 6. After the appellant was arrested on 25th April, 2007 mobile phone No.9899939834 was recovered from his possession as per memo Ex.P/13. 7. Sarwar Ali obtained call details records and tower location of the mobile phone of the accused proved at the trial as Ex.P/58 and Ex.P/59. 8. The appellant made a disclosure statement and pursuant thereto got recovered a knife and a rope as recorded in the memo Ex.P/54. Shoes stained with blood as recorded in the memo Ex.P/31. A key as recorded in the recovery memo Ex.P/21. Blood stained clothes as recorded in the memo Ex.P/19. 9. The articles recovered were sent to FSL alongwith the blood group of the deceased and the FSL report Ex.P/72 opines that blood group of the deceased was 'B' and human blood of the same origin was detected on the shoes, clothes and the knife recovered at the instance of the accused. 10. 9. The articles recovered were sent to FSL alongwith the blood group of the deceased and the FSL report Ex.P/72 opines that blood group of the deceased was 'B' and human blood of the same origin was detected on the shoes, clothes and the knife recovered at the instance of the accused. 10. On 25.4.2007 Mahendra, PW-7's statement under Section 161 Cr.P.C., 1973 was recorded by the Investigating Officer. He claimed to be a labour in an eatery at Sector 25, Shanker Nagar, CHB, Jodhpur. As per him, the appellant had visited the eatery and had taken food in day time on 24.4.2007. 11. Armed with the aforesaid material the appellant was sent for trial. At the trial, documents aforenoted were exhibited during the testimony of the witnesses of the prosecution. 12. The impugned decision, returning verdict of guilt, proceeds on the reasoning that the prosecution has successfully established that on the day of the crime appellant spoke to the complainant in the morning. Being a relation he visited the house. The call details records of the mobile phone of the accused and the complainant corroborated the stand of the complainant that the two spoke to the each other in the morning. The tower location record establishes that the accused was in the area where the house of the deceased was situated around noon time. The testimony of Mahendra, PW-7 also establishes the presence of the accused in the area when the crime was committed. The knife and blood stained clothes and shoes got recovered by the accused were detected with the blood having the same group as that of the deceased. The key got recovered by the accused pertained to the lock which was broken by the complainant. The injuries on the finger of the hands and the palm of the accused suggested that he had strangulated the deceased and had inflicted injuries with a knife. 13. Highlighting the fact that motive for the crime has not been established, no recovery pertaining to the jewellery or household good has been effected and as a matter of fact it is not the case of the prosecution that any robbery was committed, we proceed to analyze the credit-worthiness of the evidence led at the trial. 14. 13. Highlighting the fact that motive for the crime has not been established, no recovery pertaining to the jewellery or household good has been effected and as a matter of fact it is not the case of the prosecution that any robbery was committed, we proceed to analyze the credit-worthiness of the evidence led at the trial. 14. Pertaining to the key got recovered by the appellant, there is no evidence that the key related to the lock which was broken by the complainant and handed over to the Investigating Officer and thus, the said evidence is not incriminating evidence. 15. The call details records Ex.P/58 and Ex.P/59 have been tendered by the Investigating Officer sans any certificate obtained from the service provider. No witness from the service provider has been examined to prove the same. There is a complete noncompliance with Section 65B of the Evidence Act. The two exhibited documents are not proved as per law and thus have to be ignored. 16. Regarding Ex.P/59 we need to highlight that the same is not a computer print out. It is a hand written document showing the tower location. The scribe of the hand written document has not been examined. Thus, linking the accused to the area where the house in which the deceased was murdered through the medium of Ex.P/59 fails. 17. Mahendra, PW-7 claims that the appellant visited the eatery in which he worked as a labour at CHB Colony during the day when the deceased was murdered and took food. 18. The cross examination of the witness shows that as per him about 40-50 persons used to eat food in the eatery and that he does not know the customers who visited the eatery. He does not read the newspaper. He did not know the accused. He never met the accused ever before except on the day of the crime when the accused ate food at the eatery. 19. The question which arises is: How did the Investigating Officer reach Mahendra, PW7? Or, under what circumstances Mahendra, PW-7 contacted the police. Unfortunately, neither in the testimony of PW-7 nor in the testimony of the Investigating Officer Sarwar Ali, PW-19 any one of them spoke about who contacted whom. Now, how would Sarwar Ali know on 25.4.2007 that the appellant ate food at the eatery where PW-7 was a labour. Or, under what circumstances Mahendra, PW-7 contacted the police. Unfortunately, neither in the testimony of PW-7 nor in the testimony of the Investigating Officer Sarwar Ali, PW-19 any one of them spoke about who contacted whom. Now, how would Sarwar Ali know on 25.4.2007 that the appellant ate food at the eatery where PW-7 was a labour. Learned counsel for the State gives no explanation. Indeed there is none forthcoming from the evidence on record. 20. How would Mahendra, PW-7 know that of the many people who visited the eatery every day to eat food, one of them i.e. appellant would go to the house of the deceased and murder her. If he would not know this, where is the question of he meeting the Investigating Officer and informing that the accused had eaten food in the eatery where he was working on the day when the crime was committed. 21. Evidence leans in favour of the conclusion that PW-7 is a planted witness. It is also relevant to note that accused was not subjected to TIP before the witness. 22. The mysterious emergence of PW-7 Mahendra as a witness to prove that the appellant was in the area where the house of the deceased was situated when the crime was committed, compels us to apply the rule of prudence and caution to hold that the witness is a planted witness. 23. Thus, there is no evidence to establish that the appellant was in the area where the house of the deceased was situated when the deceased was murdered. 24. The only incriminating evidence which then remains is the recovery of a knife, a rope, pair of shoes and blood stained clothes by the accused on which human blood of group 'B' was detected. This was the blood group of the deceased. 25. The knife in question was not shown to the doctor who conducted the post mortem of the deceased and his opinion was not taken whether the knife could possibly be the weapon of offence. 26. The other incriminating evidence is the injuries on the hands of the deceased, which he explains when examined under Section 313 Cr.P.C., 1973 as the result of beating by the police. 27. In a case of circumstantial evidence the evidence must complete the chain of circumstances unerringly pointing towards the guilt of the accused and ruling out the innocence. 28. The other incriminating evidence is the injuries on the hands of the deceased, which he explains when examined under Section 313 Cr.P.C., 1973 as the result of beating by the police. 27. In a case of circumstantial evidence the evidence must complete the chain of circumstances unerringly pointing towards the guilt of the accused and ruling out the innocence. 28. The only incriminating evidence which we find is the injuries on the hands of the accused which he has explained as being possibly the result of beating by the police and recovery of blood stained articles which in our opinion fall short of the standard required by law in a case of circumstantial evidence to hold that the chain of circumstances is complete to hold the accused guilty. 29. Giving the benefit of doubt to the accused appellant, we allow the appeal. Impugned judgment convicting the appellant for the offences as aforenoted is set aside. The sentence imposed is also quashed. 30. The appellant shall be set free forthwith unless required in some other case. 31. However, keeping in view the provisions of section 437A Cr.P.C., 1973 the accused appellant is directed to furnish personal bond in sum of Rs. 15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.