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2018 DIGILAW 2251 (RAJ)

Mohan Lal v. State of Rajasthan

2018-12-04

MANOJ KUMAR GARG, PRADEEP NANDRAJOG

body2018
JUDGMENT Pradeep Nandrajog, C.J. - By this common judgment, D.B. Criminal Appeal No. 586/2012 preferred by Mohan Lal and D.B. Criminal Appeal No. 585/2012 instituted by Chunni lal shall be decided together. Both the appellants were tried by the Court of Additional Sessions Judge No. 1, Chittorgarh. Vide the impugned judgment dated 19.04.2012, the learned trial court has held both the appellants guilty of the offence punishable under Section 302 and 201 IPC. Having convicted the appellants for the said offences, the appellants have been sentenced as under:-- (i) for offence under Section 302 IPC:-- Life imprisonment and to pay a fine of Rs. 1000/- and in default thereof, to further undergo one month's simple imprisonment. (ii) For offence under Section 201 IPC:-- Seven years rigorous imprisonment and to pay a fine of Rs. 1000/- and in default thereof, to further undergo one month's simple imprisonment. Both the sentences were ordered to run concurrently. 2. Criminal litigation was set into motion on presentation of written report by Heera lal (PW-9) on 22.04.2008 before the SHO Police Station, Akola. In the written report, Heera lal stated that after reaping the crop of maize, he did not visit field. In the evening at about 6 P.M., S.H.O, Police Station Akola informed him that fencing of his field was burnt and burnt hair and bones were lying on the field. On this information, the complainant went to the field with the police and saw that half-burnt pieces of clothes, hairs of woman, human bones etc were lying there. Someone had killed a woman and burnt her body. 3. On the basis of said report, a formal FIR (Ex.P-68) was registered at Police Station, Akola and investigation commenced. 4. Post investigation both the appellants were charged as accused and were sent for the trial. 5. The report of investigation was filed in the Court of concerned Magistrate and later on the case was committed to Court of Sessions and the trial was entrusted to Additional Sessions Judge No. 1, Chittorgarh. Both the appellants were charged for offences under Section 302, 201 and Section 35 IPC. Both the appellants pleaded not guilty and claimed trial. 6. The prosecution examined 31 witnesses and exhibited various documents. On the defence side, DW-1 Munir Khan and DW-2 Dr. G.K. Mathur were examined. 7. Both the appellants were charged for offences under Section 302, 201 and Section 35 IPC. Both the appellants pleaded not guilty and claimed trial. 6. The prosecution examined 31 witnesses and exhibited various documents. On the defence side, DW-1 Munir Khan and DW-2 Dr. G.K. Mathur were examined. 7. At the conclusion of the trial, the learned Additional Sessions Judge No. 1, Chittorgarh vide judgment dated 19.04.2012 convicted the present appellants for the offence under Sections 302 and 201 IPC and passed sentence as mentioned earlier. 8. The learned counsel for the accused-appellants vehemently argued that a false case has been roped against the present appellants as there is no connecting evidence against the appellants. The witness of last seen namely PW/5 Balu Ram has been declared hostile and another witness PW/12 Pushpa aged about seven years mentioned in her statement that her father along with mother and children left for Tanada but she did not mention the date and time in her statement. Learned counsel for the appellants argued that this case is based upon circumstantial evidence and extra judicial confession made before PW-4 Shankar lal. The witness clearly mentioned that when the police asked about the murder, the accused said "we killed them". It is submitted that said extra-judicial confession is inadmissible in evidence. So far as the recovery of dead bodies are concerned, only bones were recovered that too after considerable delay, which was sent for DNA examination but as per DNA report, the bones did not yield DNA profile. Therefore, said incriminating circumstance also does not help the prosecution. Learned counsel argued that the prosecution has failed to prove its case beyond reasonable doubt and therefore, the accused appellants deserve to be acquitted in this case. 9. Per contra, learned Public Prosecutor argued that this is a case of circumstantial evidence and there is strong presumption against the accused appellants to convict them. He further argued that the accused appellants gave extra judicial confession before PW-4 Shankar lal. So, the case is duly proved against the accused appellants. Hence, the appeal of the accused appellants may be dismissed. 10. We have considered the rival submissions and scanned the evidence on record thoroughly. 11. He further argued that the accused appellants gave extra judicial confession before PW-4 Shankar lal. So, the case is duly proved against the accused appellants. Hence, the appeal of the accused appellants may be dismissed. 10. We have considered the rival submissions and scanned the evidence on record thoroughly. 11. Admittedly, this is a case based on circumstantial evidence and keeping in forefront the principles enunciated by the Supreme Court we have to see whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused. In this case, following incriminating circumstances were sought to be proved by the prosecution against the accused appellants :- (i) Witnesses of last seen evidence PW-5 Balu Ram and PW-22 Pushpa (ii) Extra-judicial confession made before PW/4 Shankar lal (iii) Recovery of dead bodies, bones etc 12. The first incriminating circumstance against the accused appellant is the evidence of last witness PW/5 Balu Ram but the said witness has been declared hostile and does not support the prosecution story at all. Another witness of last seen is PW/22 Pushpa aged about seven years who only mentioned that her father left the house along with wife and children for Tanda but she did not mention the date and time of departure. In her cross examination, she has stated that the fact of killing was narrated by her grandfather. Thus, this last seen witness does not connected the appellants with the alleged crime. 13. The second incriminating evidence relied upon by the prosecution is the extra-judicial confession made by the accused appellants before PW-4 Shankar lal. On perusal of statement of Shankar lal, it is evident that at the time of confession, police persons were also present and upon asking, the accused appellants confessed of killing before the police. Thus, it seems that the prosecution story was concocted so as to involve the accused-appellants on the basis of evidence of extra judicial confession. This confession made before the police is thus, inadmissible in evidence. 14. The last incriminating circumstance against the accused appellants is about recovery of dead bodies at the instance of accused appellants. It is relevant to note that the said circumstance hardly have any nexus with the alleged murder by the accused appellants for the reason that only bones were recovered from the field which were sent for DNA examination but the prosecution has not filed any DNA report. It is relevant to note that the said circumstance hardly have any nexus with the alleged murder by the accused appellants for the reason that only bones were recovered from the field which were sent for DNA examination but the prosecution has not filed any DNA report. On the contrary the defense side produced witness DW-2 Dr. G.K. Mathur, Assistant Director, Forensic Science Laboratory, Jaipur who filed a report of DNA marked as Ex.D-1 & D-2 and the resultant part reads as under :- "The sources of exhibit A (bone powder from skeleton of the deceased, Pappu), exhibit B (tissue powder from skeleton of the deceased, Smt. Tammu) and exhibit C (bone powder from skeleton of deceased, Paras) did not yield DNA profile." Thus, it could not be proved as to whether the bones recovered were that of deceased or of some other person. 15. Critical analysis of the evidence recorded by learned trial court clearly shows that the circumstances do not make the chain so complete so as to rule out every possible hypothesis which may be compatible for their innocence. 16. Consequently, the instant criminal appeals are allowed. The finding of conviction and sentence awarded by the learned Additional Sessions Judge No. 1, Chittorgarh against the accused appellants in Sessions Case No. 51/2011 vide judgment dated 19/04/2012 is hereby set aside and accused appellants are acquitted from the charges levelled against them. Since the appellants are in custody, they are directed to be released forthwith if not required in any other case. 17. However, keeping in view the provisions of section 437A Cr.P.C., 1973 the accused appellants are directed to furnish personal bonds in sum of Rs. 20,000/- and a surety bond in the like amount each, 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 appellants shall appear before the Supreme Court.