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2018 DIGILAW 2300 (RAJ)

Om Prakash v. State of Rajasthan

2018-12-13

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2018
JUDGMENT Mehta, J. - Appellant Om Prakash stands convicted and sentenced as below vide judgment dated 26.10.2017 passed by the learned Additional Sessions Judge, Pali in Sessions Case No.141/2015 (4/2011): Offence under Section 302 IPC Imprisonment for life with a fine of Rs. 30,000/- and in default of payment of fine, six months' additional imprisonment. Offence under Section 460 IPC Imprisonment for life with a fine of Rs. 10,000/- and in default of payment of fine, two months' additional imprisonment. Offence under Section 394 Imprisonment for life with a fine of Rs. 10,000/- and in default of payment of fine, two months' additional imprisonment. 2. Being aggrieved by his conviction and the sentences awarded to him, he has preferred the instant appeal under section 374 (2) CrPC, 1973. 3. Facts in brief are that the complainant Somaram lodged a written report at the Police Station Kotwali, Pali on 10.11.2010 at 10.45 a.m. alleging inter alia that on the same morning at about 8.30 a.m. Hukmaram called and informed him that he had received intimation from Kanaram of Bithuda that the first informant's father Narayan Lal had been murdered in the factory. Upon receiving such information, the first informant accompanied by his uncle Ranaram, Devaram and Hukmaram went to the J.K. Textile Factory at Mandiya Road, Pali, where the factory owner Sunil Kumar and other people were already present. The dead body of his father was lying on a floor of the room located in the left side of the factory. Blood was scattered on the floor all around the body. Dead body of Govind Singh S/o Gom Singh, resident of of Lakhon Ka Khet, Tehsil Sojat was also seen lying in a pool of blood in another room of the factory. The first informant alleged that some unknown person/s had assaulted and killed his father and Mr. Govind Singh during the night time. He further alleged that his father was working as Guard in the factory for the last one year. 4. On the basis of this report, an FIR No.480/2010 was registered for the offence under Section 302 IPC and investigation was commenced by Mr. Sawai Singh (P.W.37) being the SHO, Police Station Kotwali, Pali. The necessary formalities of preparation of Surat Hal Lash, Panchnama Lash were conducted and blood-stained soil, blood-stained control soil, apparels of both the dead bodies, garlic peels, garlic cloves, bidis, matches, plastic buttons etc. Sawai Singh (P.W.37) being the SHO, Police Station Kotwali, Pali. The necessary formalities of preparation of Surat Hal Lash, Panchnama Lash were conducted and blood-stained soil, blood-stained control soil, apparels of both the dead bodies, garlic peels, garlic cloves, bidis, matches, plastic buttons etc. were lifted from the scene of occurrence and were sealed. Rooparam presented an iron hammer covered in blood as the suspected weapon of offence, which was also seized and sealed. Both dead bodies were subjected to postmortem. The cause of death of both the murdered persons was opined to be blunt weapon injuries. The accused appellant, who also worked in the same factory, was allegedly found loitering around in a suspicious condition in the late night in the Industrial Area, Pali, upon which, he was arrested under section 109 of the CrPC, 1973. His slippers were sealed for comparison of foot print impressions. When the accused was arrested, two mobile phones, an iron clip, a sim, a belt a wallet and a towel were recovered during his personal search and were preserved in Malkhana. The recovered blood-stained articles were forwarded to the FSL for serological examination. 5. After investigation, charge-sheet was filed against the accused appellant for the offences under Sections 302, 394 and 460 IPC in the court of Chief Judicial Magistrate, Pali. As the offences were exclusively triable by the Court of Sessions, the case was committed to the Sessions Judge, Pali, who transferred the same for trial to the Court of Additional Sessions Judge, Pali. Charges were framed against the accused appellant for the offences mentioned above. He pleaded not guilty and claimed trial. The prosecution examined as many as 37 witnesses in support of its case and exhibited 81 documents. Upon being put to questions under section 313 CrPC, 1973 the accused denied the prosecution allegations, but did not choose to lead any evidence in defence. The trial court enumerated the following points of determination as being relevant and germane for reaching to a conclusion in the matter :- 1. Arrest of the accused in a suspicious condition on the very night of the incident. 2. Identification of the accused; 3. Articles seized and recovered from the accused at the time of his arrest; 4. Evidence regarding the accused and the deceased working in the same factory; 5. Motive; 6. Forensic Science Laboratory report; 7. Arrest of the accused in a suspicious condition on the very night of the incident. 2. Identification of the accused; 3. Articles seized and recovered from the accused at the time of his arrest; 4. Evidence regarding the accused and the deceased working in the same factory; 5. Motive; 6. Forensic Science Laboratory report; 7. Recovery of mobile phones from the accused; 8. Recovery of blood-stained shirt from the factory premises in furtherance of the information given by the accused under Section 27 of the Evidence Act; 9. Medical evidence; 10. Evidence of Investigating Officer. 6. After sifting and evaluating the entirety of evidence led by the prosecution, the learned trial Judge held as below :- 1. That the prosecution alleged that the accused snatched blue coloured Nokia mobile phone from Rooparam, soon after committing the murders but since Rooparam was not examined by the prosecution, this circumstance was not proved against the accused. 2. That the prosecution alleged that the black coloured mobile phone recovered from the accused was allegedly snatched from Govind Singh, but as the mobile phone was not got identified from concerned witness Omaram, this fact was not proved. 3. That the prosecution alleged that a black coloured purse having Rs. 765/- was recovered from the accused and that from the total amount, a sum of Rs. 310/-was allegedly snatched from Rooparam, but since Rooparam was not examined in evidence, the said fact was not proved. 4. That an iron clip, which was allegedly recovered from the accused could not be linked with deceased Govind Singh or with the incident because no witness alleged that the clip was owned by deceased Govind Singh. 5. That the other articles recovered from the person of the accused at the time of his arrest could not be linked with the incident. Thus, these recoveries were held to be inconsequential. 6. That the prosecution could not prove by any evidence that the accused was seen nearby the scene of occurrence soon after the incident. For coming to this conclusion, the trial court considered the statement of the witness P.W.3 Ram Singh, who could not identify the accused in the court. The other identifying witness Rooparam was not examined at the trial. That the prosecution could not prove by any evidence that the accused was seen nearby the scene of occurrence soon after the incident. For coming to this conclusion, the trial court considered the statement of the witness P.W.3 Ram Singh, who could not identify the accused in the court. The other identifying witness Rooparam was not examined at the trial. Though the Magistrate Mohan Lal Soni (P.W.33) (in whose presence, Rooparam identified the accused) was examined by prosecution, but since Rooparam himself was not produced in the witness box, the circumstance of last seen was found to be not proved. 7. That the FSL report regarding foot-moulds was held to be inconsequential because the witnesses Mahendra Jain (P.W.2) stated that the chappals worn by the suspect were recovered lying nearby the factory wall. 8. After discarding all these circumstances, the trial Judge proceeded to place reliance on the recovery of blood-stained shirt allegedly made from a drum in the motor-room of the factory pursuant to the information provided by the accused under Section 27 of the Evidence Act. In this regard, the trial court held that the accused was suspected of double murder and thus, it was unlikely that he would continue to wear the blood-stained shirt and invite suspicion upon himself. Thus, the act of the accused in concealing the blood-stained shirt in the factory was considered as natural and the recovery of the blood-stained shirt was considered to be a grave incriminating circumstance as the blood group found on the shirt recovered at the instance of the accused upon serological examination tallied with the blood group of Govind Singh. 9. It was further held that the accused was found roaming around in the Industrial Area, Pali at 1.30 a.m. on the very night of the incident wearing a vest with broken straps which had been tied together. He was arrested by P.W.30 Gani Mohammad while trying to conceal his presence. When he was apprehended, the accused intentionally gave wrong name of his father as Bhikharam. Considering this conduct of the accused to be suspicious and combining it with the circumstance of recovery of the bloodstained shirt in furtherance of the information provided by the accused under Section 27 of the Evidence Act, the trial Judge proceeded to draw inference of incriminating circumstances against the accused. 7. Considering this conduct of the accused to be suspicious and combining it with the circumstance of recovery of the bloodstained shirt in furtherance of the information provided by the accused under Section 27 of the Evidence Act, the trial Judge proceeded to draw inference of incriminating circumstances against the accused. 7. With these findings, the trial Judge proceeded to hold the accused guilty of the charges and convicted and sentenced him as above by the impugned judgment. Hence, this appeal. 8. Learned counsel Mr. Manish Dadhich, representing the appellant, vehemently and fervently urged that the prosecution failed to bring home the guilt of the appellant by conclusively proving a complete chain of circumstances. He urged that neither the prosecution could prove the motive to commit the offence against the appellant nor were the alleged recoveries established and proved by cogent, clinching and convincing evidence. Thus, the appellant deserves to be acquitted of the charges. He urged that the trial court discarded virtually the entire prosecution case in the impugned judgment, but latched on to flimsy and intangible bits and pieces for convicting the appellant. He submitted that the two circumstances on which the trial court relied upon for holding the appellant guilty of the charges are not based on cogent convincing evidence. Pointing out to the findings recorded at paras Nos.25 and 26 of the impugned judgment, he urged that the trial court took note of the fact that the accused got recovered a blood-stained shirt from a blue-coloured can from the factory, where the incident took place and at para No.27 of the judgment, the trial court took note and relied upon the conduct of the accused by referring to the Roznamcha entry (Ex.P/60), as per which, the accused was apprehended in suspicious condition by Mr. Gani Mohammad (P.W.30) and he tried to conceal his identity. Mr. Dadhich submits that firstly, the questioned factory is located within the territory of Police Station Kotwali, Pali, whereas the accused appellant was arrested at a significant distance by Mr. Gani Mohammad (P.W.30) from the territory of Police Station Industrial Area, Pali. He urged that the accused is a poor man. The police officers apprehended him, while he was simply roaming around in the industrial area and he might have panicked and thus, father's name might have been blurted out by him incorrectly at that point of time. However, as per Mr. He urged that the accused is a poor man. The police officers apprehended him, while he was simply roaming around in the industrial area and he might have panicked and thus, father's name might have been blurted out by him incorrectly at that point of time. However, as per Mr. Dadhich, if the appellant had been the assailant and was apprehended soon after the incident, then blood-stains were bound to be noticed on his body, when he was arrested. Referring to the cross-examination conducted from Mr. Gani Mohammad, Mr. Dadhich further submitted that the arresting officer intentionally did not mention the entire details of the articles found and recovered during personal search of the appellant in the Roznamcha report (Ex.P/60) and thus, the arrest memo (Ex.P/59), wherein numerous other articles are mentioned, is not a reliable document. He further pointed out to correction as incorporated in the arrest memo Ex.P/59, wherein the name of the appellant was initially mentioned as Om Prakash S/o Bhikharam and later on, Bhikharam was scored out and Mangilal was written in place thereof. It is submitted that there is no explanation regarding this correction and thus, it is quite possible that the appellant might have disclosed correct name of his father to Mr. Gani Mohammad and that the wrong name might have been inadvertently recorded in the Roznamcha and the arrest memo. He further submitted that the place of occurrence was extensively searched on 10.11.2010 itself. The dog squad was called. The Superintendent of Police, Pali was present there. As per him, it has to be presumed that the blue drum from which the blood-stained shirt was allegedly recovered at the instance of the appellant was also searched threadbare on the very same day and the shirt, if at all concealed, could not have escaped detection. He further submitted that P.W.2 Mahendra Jain, who was associated as a motbir in the proceedings of recovery of the shirt, categorically admitted in his cross-examination that he did not see the shirt being recovered from the drum and that he was stating about the recovery thereof only on the saying of the police officers, who told him that they had recovered a shirt. In this regard, Mr. Dadhich also referred to the statement of the Investigating Officer Mr. In this regard, Mr. Dadhich also referred to the statement of the Investigating Officer Mr. Sawai Singh (P.W.37), who admitted in his cross-examination that he did not collect any evidence to establish that the recovered shirt was that of the accused. He also referred to the site inspection plan (Ex.P/2) prepared by the Investigating Officer, wherein there is a reference to minute search of the factory premises and the surrounding areas on 10.11.2010. He referred to the statement of Radheyshyam (P.W.12), being the operator of the factory in question, who admitted in his cross-examination that the police carried out extensive search of the premises on 10.11.2010 with sniffer dogs in the presence of the Superintendent of Police. Thus, as per Mr. Dadhich, there was not even the faintest chance that the Investigating Officer would have missed recovering the shirt on the first day when the site was inspected and the site inspection memo was prepared and hence, according to him, the recovery of the shirt is a planted one. On these grounds, he implored the court to accept the appeal and set aside the impugned judgment and acquit the accused from the charges. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned counsel Mr. Dadhich. He urged that the appellant is guilty of double murder. He was apprehended just near the factory where the ghastly double murder took place in the dead of the night in a suspicious condition and tried to hide his presence and identity. 10. The conduct of the accused at the time of his arrest was sufficient to cast grave suspicion upon him. Thereafter, the accused gave voluntary and spontaneous information to the Investigating Officer under Section 27 of the Evidence Act, in furtherance whereof, the blood-stained shirt was recovered concealed in a drum lying inside the factory. The blood stains present on the shirt tallied with the blood group of the deceased Govind Singh. Thus, as per Mr. Choudhary, there is ample evidence on record of the case so as to justify conviction of the appellant and that the impugned judgment is just and proper and does not warrant any interference whatsoever. 11. We have given our thoughtful consideration to the arguments advanced at bar; carefully perused the impugned judgment and have minutely re-appreciated the entirety of evidence available on record. 11. We have given our thoughtful consideration to the arguments advanced at bar; carefully perused the impugned judgment and have minutely re-appreciated the entirety of evidence available on record. The case of the prosecution hinges totally on circumstantial evidence. As has been noted above, the trial court held that the prosecution could not establish majority of the incriminating circumstances it banked upon so as to bring home the guilt of the accused. Despite that, we have examined the findings recorded by the learned trial Judge on the circumstances, which were discarded in the impugned judgment and find that these findings are based on apropos appreciation of evidence available on record. We find that the prosecution failed to examine the most material witness Rooparam, whose testimony was absolutely essential to unfold the truth. Thus, adverse inference has to be drawn against the prosecution for its failure to examine a material witness at the trial. Be that as it may. Two circumstances which the trial court found proved and placed reliance upon so as to hold the appellant guilty for the offences were discussed at paras Nos.25 to 27 of the impugned judgment, which are reproduced hereinbelow for the sake of ready reference :- 12. Suffice it to say that the alleged suspicious conduct of the accused noted in the Roznamcha entry (Ex.P/60) and the arrest memo (Ex.P/59) would not, in our opinion, lend any credence to the prosecution case. It is admitted that the accused is a labourer and belongs to the weaker section of the society and as such, upon being apprehended by the police, his panicking cannot be considered to be unnatural. Furthermore, we are of the view that if at all the accused had committed murder of two persons and was trying to escape in hurry, then traces of blood would definitely have been found on his body. However, neither his arrest memo (Ex.P/59) prepared in proceedings under section 109 CrPC, 1973 nor the evidence of the witness Gani Mohammad (P.W.30), A.S.I., indicate that the accused was having blood-stains on his person or on the clothes worn by him when he was apprehended. It is significant to note that Gani Mohammad admitted in his cross-examination that the complete details of the articles recovered from the accused appellant during his personal search were not mentioned in Roznamcha. It is significant to note that Gani Mohammad admitted in his cross-examination that the complete details of the articles recovered from the accused appellant during his personal search were not mentioned in Roznamcha. This brings the entire proceedings of apprehension of the accused under section 109 CrPC, 1973 under a cloud of doubt. Out of the two witnesses, who were associated with the recovery of the shirt, one being Ashish, was not examined by the prosecution. The other witness Mahendra Jain (P.W.2) stated that the police brought out the shirt and told that the same had been recovered. He himself did not see the shirt being taken out by the accused. The shirt allegedly recovered at the instance of the accused was not got identified by the recovery witness during evidence. Furthermore, if we peruse the site inspection plan, it is apparent that the Investigating Officer searched the entire factory threadbare and rightly so because it was the case of double murder and footprints etc. seen in the factory and even nearby the factory walls were lifted. P.W.12 Radheyshyam, brother of the factory owner, admitted in his cross-examination that the Superintendent of Police, Pali was present during investigation and sniffer dogs were brought in for search of clues. Thus, by no stretch of imagination, could the Investigating Officer miss the blood-stained shirt, if it was indeed concealed in the drum lying inside the factory as claimed by the prosecution. Without any doubt, sniffer dogs would have found the shirt, if it was at all concealed in the factory. Thus, obviously, the recovery of the shirt is planted one and the trial court committed grave error in placing reliance thereupon for considering it to be a clinching link of circumstantial evidence against the accused. 13. Mr. Mahendra Jain (P.W.2), who stood as motibir in the recoveries and during the site inspection proceedings, is the friend of the factory owners Sunil Kumar and Radheyshyam. In his cross-examination, he admitted that on 10.11.2010 the police party inspected the entire factory minutely including the pump room, from where the bloodstained shirt was allegedly recovered. P.W.15 Sunil Kumar, being the factory owner, admitted in his cross-examination that the accused was brought to the factory on the very next morning of the incident at about 11 to 12 o'clock while the dead bodies were lying therein. This admission of Mr. P.W.15 Sunil Kumar, being the factory owner, admitted in his cross-examination that the accused was brought to the factory on the very next morning of the incident at about 11 to 12 o'clock while the dead bodies were lying therein. This admission of Mr. Sunil Kumar virtually destroys the entire prosecution story and strengthens the theory of doubt on the veracity of the prosecution version because the Investigating Officer claims to have arrested the accused in this case on 10.11.2010 at 10 p.m. Thus, if the accused was taken to the factory even before he was formally arrested in this case, manifestly, the entire investigation comes under a cloud of doubt. There is yet another reason, which casts a doubt on the bonafides of the investigating agency. While Gani Mohammad (P.W.30) claims that the correction in the name of the father of the accused from Bhikharam to Mangilal was made on 10.11.2010 by Roznamcha entry Ex.P/61 recorded at 12.15 p.m. on that day, on the other hand, even in the arrest memo of the accused (Ex.P/1), whereby he was arrested in this case at about 10 p.m. on 10.11.2010, his father's name is initially written as Bhikharam and thereafter, over-writing is made on Bhikharam and the words Mangilal have been inscribed thereupon. This interpolation brings the conduct of the Investigating Officer under a serious question mark. Similarly there are cutting and corrections on the second page of the arrest memo of the accused. If the accused had not been arrested in this case till 10 o'clock, then there was no occasion for the Investigating Officer to have taken him to the factory at about 11 to 12 p.m. as stated by the witness Mr. Sunil Kumar. 14. The Investigating Officer claims to have recovered two mobile phones from the accused and the call details and tower details of one phone, which the accused allegedly snatched from Rooparam, was exhibited in the statement of the Investigating Officer as Ex.P/77. This call detail is partial and contain records of the calls made from the sim in question from 10.50 a.m. till 20.43 p.m. on 09.11.2010. Manifestly, there was no reason for the Investigating officer not to have placed on record the complete call details. This call detail is partial and contain records of the calls made from the sim in question from 10.50 a.m. till 20.43 p.m. on 09.11.2010. Manifestly, there was no reason for the Investigating officer not to have placed on record the complete call details. Furthermore, a perusal of the first call alongwith the tower detail made from the said mobile No.7877636473 reveals that the phone at that point of time was at Balotara when the accused was apprehended by Mr. Gani Mohammad in the proceedings under section 109 CrPC, 1973 he stated that he had some quarrel at Balotara and was running away to escape the consequences thereof. In this background, the version given by the accused to Mr. Gani Mohammad is corroborated by the call details and tower details placed on record by the investigating agency as Ex.P/77 and as a consequence, the theory put forth in the statement of the Investigating Officer that the mobile No.7877636473 was that of Rooparam is totally busted. The prosecution has alleged that the murders were for gain, and looting the deceased was the motive of the accused. The said theory is also falsified in view of the admission made by Mr. Shobharam S/o Narayan Lal (deceased), who admitted in cross-examination that when the dead body was inspected, a two inch broad solid silver pendant worn by the deceased and a sum of Rs. 200/- were present on his body. Therefore, if all, intention of the accused was to loot the valuables, then there was no reason for him to leave behind the silver article and cash on the dead body of Mr. Narayan Lal. 15. The law is well-settled by catena of decisions of Supreme Court that in a case of circumstantial evidence, the prosecution has to prove the every link in the chain of circumstances so as to form a complete link pointing conclusively towards the guilt of the accused and then only, reliance can be placed on such evidence so as to convict an accused for the offence of murder. 16. As has been discussed above, two circumstances relied upon by the trial court for convicting the accused could not be proved by clinching, cogent and convincing evidence and rather both circumstances appear to be cooked up and concocted. created one. 16. As has been discussed above, two circumstances relied upon by the trial court for convicting the accused could not be proved by clinching, cogent and convincing evidence and rather both circumstances appear to be cooked up and concocted. created one. Hon'ble Supreme Court in the case of Sarwan Singh Rattan Singh v. State of Punjab [ AIR 1957 SC 637 ], while considering the principles of appreciation of circumstantial evidence held as below :- "It is no doubt a matter of regret that a foul coldblooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." 17. In wake of the discussion made hereinabove, we are of the view that the accused deserves to be acquitted by giving him the benefit of doubt. Thus, the impugned judgment dated 26.10.2017 passed by the learned Additional Sessions Judge, Pali in Sessions Case No.141/2015 (4/2011) is hereby quashed and set aside. The accused appellant is acquitted of the charges for the offences under Sections 302, 460 and 394 IPC. He is in custody since 10.11.2010. He shall be released from custody forthwith, if not wanted in any other case. The appeal is allowed in these terms.