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2019 DIGILAW 206 (RAJ)

Bhoparam son of Dhannaji v. State of Rajasthan

2019-01-17

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : Vinit Kumar Mathur, J. 1. The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 15.09.2012 passed by the learned Additional Sessions Judge, Bali, District Pali in Sessions Case No. 25/2009 (40/2010) whereby the accused-appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo two years additional simple imprisonment. 2. The facts in brief are that Punaram (P.W. 1) submitted a written report to the Police Station Nana, District Pali stating therein that in the morning of 29.03.2009 at around 5.30 A.M., Bhoparam came to his house, where his brother Manaram was also present. Bhoparam told that he had murdered Meera son of Samta by an axe and now he was going to some place. Bhoparam was having an axe in his hands. Then he told Bhoparam that whatever was to happen, had happened and he should go back to his house. Thereafter, Bhoparam went away from his house. After Bhoparam left, at around 6.00 A.M. he telephoned Bhuraram (P.W. 15) who was a teacher and informed him about the entire incident and requested him to inform the police station. Bhoparam murdered Meeraram due to the previous enmity between them. 3. On this information, a formal F.I.R. No. 60/2009 was registered at Police Station Nana, District Pali for the offence under Section 302 of I.P.C. against the accused-appellant. During the course of investigation, the police arrested the accused-appellant on 30.03.2009. 4. After conclusion of investigation, the police filed chargesheet against the accused-appellant for the offence under Section 302 of I.P.C. 5. Learned trial court framed, read over and explained the charge for the offence under Section 302 of I.P.C. to the accused appellant, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 19 witnesses and Ex.P/1 to Ex.P/28 documents were exhibited. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was falsely implicated and was innocent. However, the accused did not produce any oral evidence but got exhibited Ex.D/1 document in his defence. 8. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was falsely implicated and was innocent. However, the accused did not produce any oral evidence but got exhibited Ex.D/1 document in his defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 15.09.2012. Hence this appeal. 9. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor. 10. Learned counsel for the accused-appellant has submitted that present case is solely based on the circumstantial evidence and basically learned trial court relied upon the evidence with respect to the motive, extra judicial confession, last seen and recoveries made in the present case corroborated with the F.S.L. Report of the articles recovered. 11. He further submits that the rivalry or old enmity between the accused-appellant and the deceased Meera was not borne out from the record as it has come in the statement of P.W. 8 – Chuni Devi that there was no dispute or enmity between the deceased and the accused-appellant. 12. He further submits that a compromise had already arrived at between the deceased and the accused-appellant in the earlier criminal cases, therefore, there was no question of any motive imputed for committing murder of Meera on the accused-appellant. 13. He further submits that the extra judicial confession so made was not supported by the prosecution witnesses in their testimony as P.W. 1 – Punaram did not support the prosecution story and the other prosecution witnesses i.e. P.W. 2 – Manaram and P.W. 15 – Bhuraram also did not support the prosecution case and were declared hostile. Besides this, the witness Maknaram (P.W. 4) also stated that name of the accused was told to him by the police. Thus, he submits that there was no evidence to bring home the evidence of extra judicial confession in the present case. 14. He further submits that the testimony of P.W. 6 – Somidaram and P.W. 7 – Bhartaram as the witnesses of last seen did not support the prosecution as both these witnesses were declared hostile. Besides this, P.W. 10 – Dr. 14. He further submits that the testimony of P.W. 6 – Somidaram and P.W. 7 – Bhartaram as the witnesses of last seen did not support the prosecution as both these witnesses were declared hostile. Besides this, P.W. 10 – Dr. Mahendra Kumar Dabi stated that the Viscera of the deceased was not preserved for sending them for examination to bring home the theory of consumption of alcohol which was allegedly consumed by the deceased while sitting with the accused-appellant Bhoparam. 15. He further submits that the recoveries in the present case were made in the presence of P.W. 5 – Chunaram and P.W. 9 – Kantilal. They did not support the recoveries made by the investigation agency and thus, were declared hostile. Therefore, there was no question to rely upon the statements of these two witnesses for the purpose of recovery. Beside this, it is also stated that on 03.04.2009, the investigation officer i.e. P.W. 13 – Narpal Singh had thrice visited the house of the accused-appellant at different times for effecting the recoveries on the strength of the information under Section 27 of the Indian Evidence Act having been given by the accused-appellant. At two different times on the same day i.e. 03.04.2009, the recovery of axe and the bloodstained clothes of the accused-appellant and thereafter, after two days, the recovery of Sambal was effected from the house of the accused-appellant on the information given by him under Section 27 of the Evidence Act which creates doubt about the prosecution story as the recoveries from the same place were effected on three different times after getting the information in piecemeal. 16. He further submits that two different weapons of offence were recovered only to bring in line the evidence as in the postmortem report (Ex.P/15), it was mentioned that two weapons were used for inflicting the injuries to the deceased in the present case. 17. Learned counsel on the strength of these arguments submits that the prosecution could not prove beyond reasonable doubt that present appellant was guilty of the offences alleged in the present case and therefore, the trial court committed grave factual and legal error while convicting the accused-appellant for the alleged offence. 18. 17. Learned counsel on the strength of these arguments submits that the prosecution could not prove beyond reasonable doubt that present appellant was guilty of the offences alleged in the present case and therefore, the trial court committed grave factual and legal error while convicting the accused-appellant for the alleged offence. 18. Per contra, learned Public Prosecutor has supported the prosecution story and submitted that on the strength of the statements of the prosecution witnesses examined during the trial, the prosecution had been able to prove beyond all reasonable doubt the offence alleged against the accused-appellant in the present case and therefore, the learned trial court was perfectly justified in convicting the accused-appellant for the offence alleged vide Judgment dated 15.09.2012. He further submits that P.W. 1 – Punaram did not state that he did not file the first information report and therefore, his version in the F.I.R. corroborated by the medical evidence and the recovery of bloodstained weapon of offence was worth reliance, which established the fact that the accused-appellant was involved in the commission of the offence alleged in the present case. He further submits that the recovery of weapon of offence and the bloodstained clothes on the information given by the accused-appellant under Section 27 of the Evidence Act was worth reliance as the recoveries were effected by the Investigation Officer on more than one occasions cannot be a ground to discredit the recoveries effected in the present case. The Investigation Officer was logically not believed to know where the articles used in the commission of offence were concealed and at which place, as and when the information was given by the accused-appellant under Section 27 of the Evidence Act, the recoveries were effected. He further submits that as per the F.S.L. Report (Ex.P/26), the bloodstains of “B” group were found on the articles sent including the weapons of offence i.e. axe and Sambal. On the strength of these submissions, he prays that no interference in the judgment dated 15.09.2012 passed by the learned trial court is warranted in the present case. 19. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 15.09.2012 impugned herein. 20. On the strength of these submissions, he prays that no interference in the judgment dated 15.09.2012 passed by the learned trial court is warranted in the present case. 19. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 15.09.2012 impugned herein. 20. P.W. 1 – Punaram who was brother of the deceased and the accused-appellant deposed that on being asked by the police, he went to see the dead body of the deceased Meera and affixed his signatures on the memos prepared by the police. The deceased Meera was having an injury on his neck and he was not aware as to by which weapon, the same was caused. There was no other injury on the body of the deceased. He denied the fact that he got the report written, which was submitted to the police, rather, he affixed the signature on the report which was already written. He further stated that he did not inform anybody about the death of the deceased Meera. 21. P.W. 2 – Manaram who too was brother of the deceased, his house was located in the neighbourhood of the deceased. He stated that he was not aware as to who caused the injury to the deceased. He was declared hostile by the prosecution. 22. P.W. 4 – Maknaram who was brother of the deceased stated that he was informed by the police that Meera had been murdered. He saw the dead body of the deceased Meera having injury on his neck. 23. P.W. 5 – Chunaram stated that the recovery of Sambal was not made in his presence. He was declared hostile by the prosecution. 24. P.W. 6 – Somidaram stated that Meera was his cousin brother and he was not aware of the fact that Meera and Bhoparam had consumed alcohol together. He did not hear that Meera was murdered by Bhoparam. He was also declared hostile. 25. P.W. 7 – Bhartaram also deposed almost on the same lines of P.W. 6 – Somidaram and was also declared hostile. 26. P.W. 8 – Chuni Devi who was mother of the deceased stated that she came to know through Jawanaram that her son Meera had been murdered by inflicting injuries by axe. He was also declared hostile. 25. P.W. 7 – Bhartaram also deposed almost on the same lines of P.W. 6 – Somidaram and was also declared hostile. 26. P.W. 8 – Chuni Devi who was mother of the deceased stated that she came to know through Jawanaram that her son Meera had been murdered by inflicting injuries by axe. She further stated that there was no enmity between the accused-appellant Bhoparam and the deceased Meera. 27. P.W. 9 – Kantilal who was witness of recovery of the weapon of offence i.e. axe did not support the prosecution story as he stated that the axe was not recovered in his presence. Thus, he was declared hostile. 28. P.W. 10 – Dr. Mahendra Kumar Dabi who conducted the autopsy upon the dead body of the deceased described the injuries sustained by the deceased Meera and stated that the injuries were caused by sharp edged weapon and the cause of death was shock due to injury caused on the spinal cord of the deceased. He did not collect the samples of viscera and therefore, he could not say anything whether the deceased had consumed alcohol. 29. P.W. 13 – Narpal Singh was the investigation Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. He stated that he made the recoveries on more than one occasion after visiting the house of the accused-appellant on getting information under Section 27 of the Evidence Act at different times. He further stated that after conducting the investigation, as prescribed in law, he submitted his report before the court of competent jurisdiction. 30. P.W. 15 – Bhuraram stated that he had no conversation with Punaram on telephone. Thus, he too was declared hostile. 31. The postmortem report is Ex.P/15 wherein the cause of death was shown as shock due to injury caused on the spinal cord of the deceased Meera. 32. P.W. 4 – Maknaram who was real brother of the deceased did not state about any previous enmity between the deceased Meera and the accused-appellant. P.W. 8 – Chuni Devi who was mother of the deceased clearly stated that there was no enmity between the deceased Meera and the present accused-appellant. 32. P.W. 4 – Maknaram who was real brother of the deceased did not state about any previous enmity between the deceased Meera and the accused-appellant. P.W. 8 – Chuni Devi who was mother of the deceased clearly stated that there was no enmity between the deceased Meera and the present accused-appellant. Besides this, it has come on record that a compromise was already arrived at between the deceased Meeraram and the accused-appellant in the cases arising out of F.I.R. Nos. 156/2005 and 141/2000 registered at Police Station Nana. Therefore, the motive to murder the deceased Meeraram is not sustainable. 33. It is true that in the complaint (Ex.P/8), it was mentioned that the accused-appellant came to the house of Punaram (P.W. 1) and stated that he had murdered the deceased Meera but in the statement of P.W. 1 – Punaram recorded in the court, the version of the first information report was not supported. In the statement, he stated that the report was already written and he affixed thumb impression on the same and at the same time, he stated that he was not aware of the contents of the same. Not only this, the prosecution failed to confront this from the witness in the cross-examination. Beside this, P.W. 2 – Manaram and P.W. 15 Bhuraram did not support the prosecution story and were declared hostile. Therefore, there was no evidence on record to support the extra judicial confession allegedly made by the accused-appellant in the present case. It has also come on record that no question with respect to extra judicial confession was asked to the accused-appellant in the statement under Section 313 of Cr.P.C. Therefore, in our view, the theory of extra judicial confession became wholly unreliable and worthless in the present case. 34. P.W. 6 – Somidaram and P.W. 7 – Bhartaram also stated that they did not see the accused-appellant – Bhoparam and the deceased Meeraram having consumed alcohol together before the death of Meeraram. Both these witnesses were declared hostile. Thus, the testimony of P.W. 6 – Somidaram and P.W. 7 – Bhartaram being not available to the prosecution as reliable piece of evidence to link the chain of circumstances, the evidence of last seen is worthless and of no help to the prosecution. 35. Both these witnesses were declared hostile. Thus, the testimony of P.W. 6 – Somidaram and P.W. 7 – Bhartaram being not available to the prosecution as reliable piece of evidence to link the chain of circumstances, the evidence of last seen is worthless and of no help to the prosecution. 35. Even otherwise, we find that the theory of the deceased having consumed alcohol was not proved as the Visceras were not sent for examination and therefore, whether the deceased Meeraram had consumed liquor or not was also found missing in the sequence of events. 36. It has come in the statement of the investigation officer i.e. P.W. 13 – Narpal Singh that immediately after the incident, he went to the house of the accused-appellant during the course of investigation then, it was bounden duty of the Investigation Officer and should be the first reaction to search or at least look out for the incriminating material from the scene of occurrence or the place of incident. It is also interesting that the recoveries were effected in piecemeal as it was admitted in the statement of P.W. 13 that the recovery of axe, bloodstained clothes and Sambal was made at different times on the information given by the accused-appellant under Section 27 of the Evidence Act. There was no satisfactory explanation furnished by the Investigation Officer for the recoveries having been effected in such a fashion and that being the position, the possibility of artificially managing the recoveries cannot be ruled out in the present case. The fact of discarding the recoveries is also established from the statements of P.W. 5 – Chunaram and P.W. 9 – Kantilal, who were recovery witnesses and did not support the recoveries of axe and Sambal and thus, were turned hostile. 37. Thus, we find that in the present case, the chain of circumstances is not complete and there are too many loopholes in the story of the prosecution which does not inspire confidence and therefore, it has not been proved beyond all reasonable doubt that it was none other than the accused-appellant who committed the offence alleged in the present case. 38. The Hon’ble Supreme Court in the case of Sonu @ Amar Vs. State of Haryana reported in AIR 2017 SC 3441 has held that in the case of circumstantial evidence, certain principles are to be followed which are as under: “1. 38. The Hon’ble Supreme Court in the case of Sonu @ Amar Vs. State of Haryana reported in AIR 2017 SC 3441 has held that in the case of circumstantial evidence, certain principles are to be followed which are as under: “1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 39. Keeping in mind the above principles, we are of the view that the evidence against the present appellant is not sufficient to hold him guilty of the offence under Section 302 IPC in the present case. 40. For sustaining the conviction against a person, the allegations must be proved as the distance between ‘must be proved’ and ‘may be proved’ is inevitably a long distance to travel and the same is required to be covered by legal, reliable and unimpeachable evidence as held by the Hon’ble Supreme Court in the case of Sarwan Singh Vs. The State of Punjab reported in AIR 1957 SC 637 . The relevant Para 12 of the judgment is reproduced as under :- “In his cross-examination Dr. Singh admitted that injury No. I could have been caused by razor blade as suggested by the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been caused by rubbing against some hard substance. In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue. Then we have the evidence of blood-stains on the shirt and chadar worn by Sarwan Singh. If the explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood-stains on his dress cannot be seriously pressed against him. Then we have the evidence of blood-stains on the shirt and chadar worn by Sarwan Singh. If the explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood-stains on his dress cannot be seriously pressed against him. The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt may suggest that Sarwan Singh was associated with the criminals but that is very far from proving the charge of murder against him. Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand why it was not used. Then we have the evidence of the shoes which were found on the spot. The evidence of the shoe-maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh that very night. According to him, he has been manufacturing shoes like this pair though not on a large scale' Unfortunately, in his examination under S. 342 of the Code, no question had been put to Sarwan Singh about these shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him under S. 342 justifies his argument that this circumstance should not be used against him. Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan Singh is being tried. The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded 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. We have carefully considered all the arguments which Mr. Gopal Singh urged before us; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true. In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged. Appeals allowed.” 41. The same view was reiterated by the Hon’ble Supreme Court in the case of Navaneethakrishnan Vs. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018. 42. Thus, in view of whatever stated above, the judgment dated 15.09.2012 passed by the learned trial court is not sustainable and deserves to be quashed and set aside. 43. Resultantly, the appeal is allowed. The impugned judgment dated 15.09.2012 passed by the learned Additional Sessions Judge, Bali, District Pali in Sessions Case No. 25/2009 (40/2010) is hereby quashed and set aside. The accused-appellant is acquitted of the charge for the offence under Section 302 of I.P.C. The accused-appellant is in judicial custody. He shall be released from prison forthwith if not wanted in any other case.