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2019 DIGILAW 125 (RAJ)

Naresh @ Narayan Lal v. State of Rajasthan

2019-01-10

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : SANDEEP MEHTA, J. 1. The appellant stands convicted and sentenced as below vide the impugned judgment dated 19.05.2015 passed by learned Addl. Sessions Judge, Sumerpur, District Pali in Sessions Case No.37/2014 (17/2012) Under Section 302 IPC Life Imprisonment with fine of Rs.10,000/- and in default of payment of fine to further undergo one year S.I. Under Section 201 IPC Three years RI with fine of Rs.5000/- and in default of payment of fine to further undergo six months S.I. (Both sentences were ordered to run concurrently.) 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Succinctly state, facts relevant and essential for disposal of the instant appeal are noted herein below 4. Chimnaram (PW-1) lodged a written report (Ex.P/1) to the SHO PS Sanderao on 26.04.2012 inter alia alleging that on the very same day at about 8:00 am while he was proceeding from Sindaru to village Khindara and reached at a distance of about 10 meters from the village Khindara, he saw the dead body of an unknown person lying in a ditch. He informed the Police Station on phone. Upon checking the body, he realized that marks of throttling and other violent injuries were present on the dead body. He expressed apprehension that some unknown assailant committed murder and threw the dead body in the ditch. On the basis of this report, an FIR No.41/2012 for the offences under Sections 302 & 201 IPC was registered at PS Sanderao and investigation commenced. After investigation, charge sheet was filed against the accused appellant for the above offences. Since the offences were sessions triable, the case was committed to the court of Addl. Sessions Judge, Sumerpur, District Pali who framed charges against the accused appellant for these offences. The accused pleaded not guilty and claimed trial. The prosecution examined 24 witnesses in support of its case and exhibited 51 documents. 5. Upon being examined under Section 313 Cr.P.C., the accused denied the prosecution allegations but did not choose to lead any evidence in defence. However, two documents were exhibited by the defence. The trial court, upon hearing the arguments advanced by the defence and the prosecution and after appreciating the evidence available on record, proceeded to convict and sentence the appellant as above. Hence, this appeal. 6. However, two documents were exhibited by the defence. The trial court, upon hearing the arguments advanced by the defence and the prosecution and after appreciating the evidence available on record, proceeded to convict and sentence the appellant as above. Hence, this appeal. 6. The prosecution case which is solely based on circumstantial evidence proceeds on an aspersion that the accused appellant was carrying on an affair with the witness Heena (PW-7) D/o Bhagwandas. On the fateful day i.e., in late hours of 25.04.2012, the accused was present in the house of Shri Bhagwandas. Komal (PW-6) was also present there. Hitesh (the deceased) son of Bhagwandas & brother of Mst. Heena came to the house and saw that the appellant was behaving with his sister in an inappropriate manner. Hitesh reprimanded the appellant that he should not misbehave with Heena. On this, the accused appellant went into the bathroom and bolted the door from inside. Hitesh broke open the door of the bathroom and took the appellant out. Both started fighting with each other. Thereafter, the appellant went away to Godown of Bhagwati Bistar Bhandar where he used to work. Hitesh followed him. Sounds of fighting came from the godown. Little later, the sounds died down. Naresh came back and told Heena and Komal that he and Hitesh had settled their difference and that he had sent Hitesh to Sheoganj for some work. Hitesh did not return and the news of his death was flashed in the newspaper. 7. Manifestly, the entire prosecution case hinges on the testimony of the witnesses Komal (PW-6) & Heena (PW-7) who claim to have seen the appellant lastly in the company of the deceased soon before his death. In addition thereto, the prosecution claims to have recovered following articles from the accused on the strength whereof it made an endeavour to link the accused with the alleged offences (1) ATM Card of UCO Bank belonging to the deceased, (2) a Chinese mobile phone, (3) a piece of rope & (4) a pigeon coloured shirt. The trial court relied upon these pieces. 8. Shri Shambhoo Singh and Shri S.S. Gaur, representing the accused appellant vehemently and fervently contended that the evidence of witnesses Mst. Komal (PW-6) & Heena (PW-7) is totally unreliable. The trial court relied upon these pieces. 8. Shri Shambhoo Singh and Shri S.S. Gaur, representing the accused appellant vehemently and fervently contended that the evidence of witnesses Mst. Komal (PW-6) & Heena (PW-7) is totally unreliable. He urged that the witnesses claim that the deceased Hitesh and the accused appellant quarreled with each other on 25.04.2012 and thereafter, Hitesh was not seen alive. The dead body of deceased Hitesh was recovered on 26.04.2012. The investigation was commenced. The police visited the house of the deceased on a number of occasions but the girls kept silent and did not disclose about the incident of 25.04.2012 upto 3rd May, 2012 either to the parents or to the police that there was a fight between the accused appellant and Hitesh after which, Hitesh was murdered. Not only this, the parents of the witness Heena and Hitesh returned home on the very same night immediately after the quarrel had taken place between Hitesh and the appellant. However, the girls did not tell the parents about the quarrel. Even after the news regarding the murder of Hitesh had been published in the newspaper, the witness never divulged about the preceding events to her parents. He contended that the witness claims that the accused threatened her not to disclose about the incident while making extrajudicial confession that he had killed Hitesh about 2-3 days after the incident. As per defence Counsel, it was absolutely unnatural for the witnesses to have kept silent regarding the quarrel which took place between Naresh and Hitesh on 24.04.2012 and not to have told the parents about the circumstances under which Hitesh had gone missing thereafter for almost 2-3 days and even after dead body was recovered. Drawing court's attention to the statements of the IO Khalil Ahmad (PW-23) the learned defence Counsel pointed out that the statements of witnesses Heena and Komal were recorded by the IO as late as on 03.05.2012. As per them, the rank silence of the witnesses in failing to make a disclosure about the violent events which took place between the deceased and the accused appellant on the fateful day which is the most significant circumstance relied upon by the prosecution brings their testimony under a serious cloud of doubt and they have to be branded as absolutely unreliable witnesses. As regard, the recoveries effected from the accused, the contention of the learned defence counsel was that the accused was arrested as late as on 04.05.2012. He was a free bird till in the intervening period of almost eight days and thus it is unbelievable that he would retain the worthless identity card and the ATM Card and preserve and hide them rather than destroying the same so as to create evidence against himself. As per learned defence counsel, after the concocted version of these two girls Heena and Komal had been recorded by the IO on 03.05.2012, the accused appellant was arrested and then, fake recoveries were shown at his instance. They further urged that the prosecution did not lead any evidence so as to establish the ownership of the mobile phone recovered at the instance of the accused. No incriminating inference can be drawn from the rope and the motorcycle recovered on the information of the accused. As per learned defence Counsel, no witness from the prosecution claims to have seen the accused taking the deceased on the motorcycle for disposing off the dead body near the village Khindara which is at a distance of 20 kilometers from Sanderao town where the incident allegedly took place. As per them, the prosecution theory is that the deceased was murdered in godown at Sumerpur and then his dead body was carried on the motorcycle to Khindara where it was thrown in the ditch. As per the defence Counsel, the distance between the place of occurrence and the place where the dead body was recovered is about 20 kms and it is impossible to believe that the accused could have single handedly carried the dead body on his motorcycle for a distance of 20 Kms without being noticed by anyone. They thus, urged that the prosecution evidence is totally unworthy of credence and full of loopholes and that it could not be established by a complete chain of circumstances that none other than the appellant murdered the deceased. They, thus craved acceptance of the appeal and sought acquittal of the appellant from the charges. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the defence counsel and contended that the accused was carrying on an affair with Mst. Heena. They, thus craved acceptance of the appeal and sought acquittal of the appellant from the charges. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the defence counsel and contended that the accused was carrying on an affair with Mst. Heena. Hitesh being the brother of Heena objected to this affair on which a fight ensued between Hitesh and Naresh in his house. The appellant tried to hide himself in the bathroom and thereafter, went away to the godown where both used to work. The deceased followed him to the godown where the accused assaulted the deceased and killed him. Soon thereafter he returned to the house and misled the two girls that he had settled his dispute with Hitesh and that he had been sent to Sheoganj for some work. As per learned Public Prosecutor, these circumstances coupled with the fact that the accused made extrajudicial confession to Heena (PW-7) that he had murdered Hitesh combined with the recovery of incriminating articles made at the instance of the accused should be considered sufficient so as to satisfy the Court that the prosecution has proved the complete chain of the circumstances pointing conclusively to the guilt of the accused and hence, the appeal merits dismissal. 10. We have given thoughtful consideration to the arguments advanced at bar and have threadbare perused the material available on record. 11. As has been noted above, the prosecution case hinges totally on circumstantial evidence. The two most important and material witnesses examined by the prosecution are Komal (PW-6) being the cousin of the deceased and Heena (PW-7) being the real sister of the deceased. Both gave almost identical statements. They alleged that they were together present in the house. The parents of the deceased had gone out for catering jobs. Naresh came to their house at about 9-9:30 pm. He started behaving with Heena in an inappropriate manner. At that point of time, the deceased Hitesh arrived at and objected to the said behaviour. On this the accused entered into the bathroom of the house of the deceased. Hitesh pulled him out after breaking the door of the bathroom. Both started fighting with each other. Naresh went away to Bhagwati Bistar Bhandar. Hitesh followed him. Sound of fighting continued to be heard from the godown. On this the accused entered into the bathroom of the house of the deceased. Hitesh pulled him out after breaking the door of the bathroom. Both started fighting with each other. Naresh went away to Bhagwati Bistar Bhandar. Hitesh followed him. Sound of fighting continued to be heard from the godown. After these sounds died down, Naresh came back to their home and told that he had settled the dispute with Hitesh and he had sent him for some work to Sheoganj. However, Hitesh did not return and news of his death was published in the newspapers. Manifestly, the natural human conduct warranted that no sooner the witnesses came to know about the death of Naresh, then they should have spoken out about the fight which allegedly took place on the previous day to Shri Bhagwandas & Smt. Saroj. However, the witnesses kept silent about the so called incident of 25.04.2012 and not only did they conceal this fact from the father and mother of the deceased but they also failed to disclose anything in this regard to the police officials for almost about seven days after the dead body of Hitesh was recovered. The IO Khalil Ahmad admitted that the statements of these witnesses were recorded by him on 03.05.2012. The explanation offered by the learned Public Prosecutor that the accused threatened the two girls and they were terrified and that because of such threats they could not speak out is absolutely flimsy and fabricated for the simple reason that as per PW-7 Heena, the accused threatened her and made the extrajudicial confession after two-three days of the incident. Thus for this period, the witnesses were under no pressure or threat so as to keep silent about the events leading to the murder of their own brother. Thus, we hold that the conduct of these two witnesses is highly doubtful and their deposition regarding the quarrel which allegedly took place between the deceased and the appellant and alleged extrajudicial confession made by the accused appellant is unworthy of credence. 12. These circumstances are more than sufficient to satisfy the Court that the accused might have been implicated in the case at the instance of over-zealous police officials who were trying to solve the case by hook or by crook. 13. 12. These circumstances are more than sufficient to satisfy the Court that the accused might have been implicated in the case at the instance of over-zealous police officials who were trying to solve the case by hook or by crook. 13. After the evidence of these two witnesses is eschewed from consideration, the other circumstances which are available to the prosecution so as to prove the case against the accused are of recoveries allegedly made in furtherance of the information’s provided by him to the IO under Section 27 of the Evidence Act. For the first time, name of the accused appellant was taken by the witnesses Heena and Komal in their statements recorded under Section 161 Cr.P.C by IO Khalil Ahmad on 03.05.2012 and the accused was arrested on 04.05.2012. Thus, the accused was a free bird till 04.05.2012. The IO claims to have recorded disclosure statements of the accused under Section 27 of Evidence Act and recovered a piece of rope, ATM Card, two mobile sims and motorcycle allegedly used for transporting the dead body. Suffice it to say that it is absolutely unbelievable that the accused would retain with himself the ATM Card of the deceased which could not be used without pin number. Thus, the recovery of the ATM card is totally unbelievable and appears to have been planted for creating evidence against the accused. The recovery of rope cannot be construed to be an incriminating circumstance for the simple reason that the prosecution did not produce any scientific evidence to establish that the cut ends of the rope recovered at the instance of the accused matched with the piece of rope allegedly used for committing murder/disposing of the dead body. No witness of the prosecution alleged that the motorcycle recovered at the instance of the accused was used for transporting the dead body to the village Khindara from where it was recovered. Otherwise also, we are of the firm opinion that it is not possible for a single man to carry a dead body on motorcycle for a distance of almost 20 kilometers. 14. In this background, we are of the firm opinion that the recoveries made by the IO from the accused on the basis of the information’s supplied by him under Section 27 of the Evidence Act appear to be planted one. 14. In this background, we are of the firm opinion that the recoveries made by the IO from the accused on the basis of the information’s supplied by him under Section 27 of the Evidence Act appear to be planted one. Even if for arguments sake, the recoveries are treated to have been made faithfully, then also they did not create a circumstance which can incriminate the accused for the offence of murder of Hitesh. 15. In wake of the discussion made hereinabove, we are of the opinion that the prosecution has failed to prove and bring home the charges against the accused appellant by leading cogent and reliable evidence so as to form a complete chain of circumstances conclusively pointing to his guilt. Thus, we are of the opinion that the trial court committed grave error in facts as well as law while appreciating the evidence and holding the circumstances to be proved and in convicting the accused appellant vide impugned judgment dated 19.05.2015 passed in Sessions Case No.37/2014 (17/2012). 16. Hence, the instant appeal deserves to be and is hereby accepted The impugned judgment dated 19.05.2015 is hereby set aside. The accused appellant is acquitted of the charges. He is in custody. He shall be released forthwith if not wanted in any other case.