Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 1910 (RAJ)

Ramesh Nath v. State of Rajasthan

2019-07-05

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : 1. The appellant herein stands convicted and sentenced as below vide judgment dated 05.04.2019 passed by the learned Additional Sessions Judge No. 1, Bhilwara in Sessions Case No. 39/2016: Offence for which convicted Sentenced awarded 302 IPC Life imprisonment alongwith a fine of Rs. 2,000/- and in default of payment of fine, further to undergo 15 days' additional simple imprisonment 2. Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. The brief facts relevant and essential for disposal of the appeal are noted hereinbelow. 4. The complainant Dhapu Bhai (P.W. 4) submitted a written report (Ex. P/5) to the SHO, Police Station Pratap Nagar, Bhilwara on 14.07.2013 at 09.30 a.m. alleging inter alia that she and her husband Narayan Singh used to reside in the Bheel Kada Ara, Malola Road, Balaji Temple, Bhilwara. Her husband used to do labour jobs for earning livelihood. On 13.07.2013, her husband left the house in the afternoon at about 12-1 O'clock saying that he was going for the labour job. He did not return home in the night. On the next morning at about 8 o'clock, some person informed that a ensanguined dead body of some person was lying on the Malola Road, upon which, out of curiosity, the complainant went to that place and identified it to be of her husband Narayan Singh. Her husband had been killed by unknown assailants by inflicting stone blows on the head and chest area and significant quantity of blood was sprayed all around. On the basis of this report, a formal FIR No. 358/2013 (Ex. P/40) was registered at the Police Station Pratap Nagar Bhilwara on 14.07.2013 for the offence under Section 302 IPC and the investigation was commenced. 5. The place, where the dead body was found, was inspected with the assistance of the Mobile Forensic Science Unit. Photographs of the dead body were snapped. The investigation was undertaken by Shri Phoolchand, SHO, Police Station Pratap Nagar, Bhilwara. The dead body of Narayan Singh was subjected to postmortem through a medical board constituted at the Government Hospital, Bhilwara, which issued postmortem report (Ex. P/20) noticing presence of numerous blunt weapon injuries caused by blows of stone on the head and other body parts of Narayan Singh. The injuries were opined to be sufficient in the ordinary course of nature to cause death. P/20) noticing presence of numerous blunt weapon injuries caused by blows of stone on the head and other body parts of Narayan Singh. The injuries were opined to be sufficient in the ordinary course of nature to cause death. Smt. Dhapu Bai submitted a bill (Ex. P/5) regarding purchase of a mobile phone by Narayan Singh. The clothes available on the dead body of Narayan Singh were seized. The statements of various witnesses were recorded. The finger of suspicion turned towards accused appellant Ramesh Nath, who was arrested on 29.07.2013 vide arrest memo (Ex. P/11). The accused allegedly gave an information under Section 27 of the Evidence Act to the Investigating Officer on the very same day disclosing that after killing Narayan Singh, he had taken out the mobile phone with sim lying in his pant pocket and had concealed the same at his house. The said information was recorded in the memorandum Ex. P/37. The Investigating Officer claims that in furtherance of this information, the accused got recovered the mobile phone belonging to the deceased, which was seized vide seizure memo (Ex. P/12) dated 30.07.2013. Based on this solitary circumstance of recovery of mobile phone, the Investigating Officer proceeded to file a charge-sheet against the appellant herein for the offence under Section 302 IPC. The offence being triable by the Court of Sessions, the case was committed and transferred to the Court of the Additional Sessions Judge No. 3, Bhilwara for trial. The trial court framed charge against the accused for the offence under Section 302 IPC. After evidence had been partially recorded, the case was transferred to the Court of Additional Sessions Judge No. 1, Bhilwara. The prosecution examined as many as 25 witnesses and exhibited 44 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. After hearing the arguments of the prosecution and the defence and appreciating the evidence available on record, the learned trial Judge proceeded to convict and sentence as above vide judgment dated 05.04.2019, which is assailed in this appeal. 6. Mr. N.K. Gurjar, learned counsel representing the appellant, vehemently and fervently urged that there was no material with the Investigating Officer, on the basis whereof, he arrested the accused. The incident took place on 13.07.2013. 6. Mr. N.K. Gurjar, learned counsel representing the appellant, vehemently and fervently urged that there was no material with the Investigating Officer, on the basis whereof, he arrested the accused. The incident took place on 13.07.2013. The accused was arrested as late as 29.07.2013 without there being any evidence against him on the file. He urged that the witnesses Gopal (P.W. 10), Dinesh (P.W. 12), Devkaran (P.W. 13) and Sayari (P.W. 14), who had given absolutely flimsy statements during investigation for implicating the accused, did not support the prosecution case, when they were examined on oath and thus, other than the recovery of mobile phone, there is absolutely nothing on record so as to connect the accused with the crime. He submitted that Dhapu Bai (P.W. 4), when cross-examined by the defence, admitted that she handed over the mobile phone, mobile sim and bill to the police on the day next to the murder of her husband and that all these three things were lying at her house before she gave them to police. He urged that though the trial court took note of this important portion of statement of Dhapu Bai, yet no discussion thereof was made while concluding the circumstance of recovery of mobile phone against the appellant. He, thus, urged that the impugned judgment is bad in the eyes of law and that there is no evidence worth the name on the entire record to connect the appellant with the alleged crime and hence, the impugned judgment being perverse on the face of the record should be set aside and the accused be acquitted of the charge. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the counsel for the appellant. However, he too is not in a position to dispute the fact that other than the evidence of recovery of mobile phone with sim, there is nothing on the entire record, which can connect the appellant with the offence of murder of Shri Narayan Singh. 8. We have given our thoughtful consideration to the arguments advanced at bar and have minutely sifted and re-appreciated the evidence available on record. It is an admitted position that the entire case of the prosecution, which is based on circumstantial evidence, hinges around the recovery of the mobile phone and the sim. 8. We have given our thoughtful consideration to the arguments advanced at bar and have minutely sifted and re-appreciated the evidence available on record. It is an admitted position that the entire case of the prosecution, which is based on circumstantial evidence, hinges around the recovery of the mobile phone and the sim. Law is well-settled that recovery of an incriminating article soon after murder may give rise to a presumption under Section 114 of the Evidence Act that the accused from whose possession or instance such a thing is found is guilty of the murder, but this inference would depend on the peculiar facts of each case. In the case at hand, the prosecution did not propose the charge of theft/looting against the accused and only charge for the offence under Section 302 IPC was framed against the accused and thus, manifestly, theft is not imputed to be the motive behind the murder. The accused was arrested after more than 15 days of the incident. On going through the recovery memo and the bill, it is apparent that the mobile phone is of very ordinary make. As the prosecution itself has not alleged that the theft was the motive behind the murder, it does not stand to reason that the accused would take off the cheap mobile phone from the body of the deceased and keep it concealed and preserved at his house for more than 15 days so that the same could be recovered and used as an evidence against him at a later stage. That apart, Smt. Dhapu Bai, wife of Narayan Singh, upon being cross-examined at the trial made the following important admission:- ^^eSaus vius ifr dk eksckby fcy o eksckby o eksckby fle rhuksa esaus esjs ifr ds ejus ds vxys fnu gh iqfyl okyksa dks fn;s FksA esaus vius ?kj ls gh fn;s FksA ;g lgh gS fd mDr rhuksa phtsa esjs ?kj ij gh jgrh FkhA^^ 9. The trial court took note of this important admission made by Smt. Dhapu Bai, but while concluding the findings, no appreciation whatsoever was made of this significant fact. As Dhapu Bai, wife of the deceased, herself admitted explicitly that she gave the bill and the mobile phone with sim to the Investigating Officer on the day next to the incident, manifestly, the recovery thereof at the instance of the accused becomes false and fabricated ipso facto. As Dhapu Bai, wife of the deceased, herself admitted explicitly that she gave the bill and the mobile phone with sim to the Investigating Officer on the day next to the incident, manifestly, the recovery thereof at the instance of the accused becomes false and fabricated ipso facto. On going through the conclusions drawn by the trial court in para No. 12 of the impugned judgment, it is clear that no consideration/appreciation whatsoever was made of this important admission appearing in the statement of Smt. Dhapu. As the admission referred to supra, clearly demolishes the prosecution case that the mobile phone of the deceased was recovered at the instance of the accused in furtherance of the information provided by him to the Investigating Officer, there remains no evidence whatsoever on the record so as to connect the accused with the alleged offence. Thus, the impugned judgment is perverse and illegal on the face of the record and cannot be sustained. 10. As an upshot of the above discussion, the appeal deserves to succeed. The appeal is allowed. The judgment dated 05.04.2019 passed by the learned Additional Sessions Judge No. 1, Bhilwara in Sessions Case No. 39/2016 is set aside. The accused-appellant is acquitted of the charge under Section 302 IPC. He is in custody and shall be released from prison forthwith if not wanted in any other case. 11. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused-appellant is directed to furnish a personal bond in the 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.