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2019 DIGILAW 2108 (RAJ)

Ramesh @ Ramesh Chandra v. State of Rajasthan

2019-08-02

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellants herein have been convicted and sentenced as below vide the judgment dated 24.05.2019 passed by learned Sessions Judge, Banswara in Sessions Case No.57/2018: Under Section 302 IPC Life Imprisonment and a fine of Rs.10,000/- each, in default of payment of fine to further undergo three months additional RI. Under Section 201 IPC three years rigorous imprisonment and a fine of Rs.2,000/- each, in default of payment of fine to further undergo one months additional RI. (Both the substantive sentences were ordered to run concurrently.) 2. Being aggrieved of their conviction and the sentences awarded to them, the appellants have preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- 4. Prabhu S/o Soma Damor, the complainant (PW.1) lodged a complaint (Ex.P/22) to the Superintendent of Police, Banswara on 27.11.2017 alleging inter alia that at midnight of 10.11.2017, Veera S/o Bijiya, Narayan S/o Wala, Badji S/o Kana, Vinod S/o Badji called his son Subhash on his mobile phone and asked him to come out of the house. These accused persons, forcibly took away his son who did not return for quite some time upon which the complainant and his family members got worried and started a search for him but the boy could not be found. In the next morning, the complainant found Subhash's slippers and mobile near his own well. On this, a dragnet was put into the well whereupon the body of the Subhash surfaced above the water. The complainant and his companions noticed that a stone of about 20 Kgs. was tied to the legs of Subash and his ears had been cut. Blood was oozing out from his eyes and mouth. Numerous injuries were noticeable on the body of Subhash. It was alleged in the said complaint (Ex.P/22) that the four named accused had killed the deceased and submerged the dead body into the well by weighing it down with the aid of a stone. The complainant alleged that he had lodged a report at Police Station Arthuna but no action was taken thereupon. As per him the officers of the police station Arthuna connived with the accused and even the postmortem of the body was not allowed to be conducted on the ground that the doctors were on strike. The complainant alleged that he had lodged a report at Police Station Arthuna but no action was taken thereupon. As per him the officers of the police station Arthuna connived with the accused and even the postmortem of the body was not allowed to be conducted on the ground that the doctors were on strike. An aspersion was cast upon the Village Sarpanch Bhuralal @ Shri Dalji with the allegation that he was involved in the foul play and that he maneuvered to get the matter covered up. 5. On the basis of this complaint (Ex.P/22), an FIR No.14/2018 (Ex.P/23) was registered for the offences under Sections 302 and 201 IPC at Police Station Arthuna District Banswara. The investigation was assigned to SHO PS Arthuna Shri Subhash Chandra Parmar (PW.14),who proceeded to the site and conducted site inspection. The accused Bhura and Ramesh were found involved in the murder and were arrested on 19.01.2018 vide arrest memos Ex.P/28 and Ex.P/29 respectively. The Investigating Officer claims to have recorded an information (Ex.P/30) of the accused Ramesh under Section 27 of the Indian Evidence Act in furtherance whereof he proceeded to seize a few stones ( 3 in total) and a black and white nylon rope ad measuring 86 inches long and 3 cm thick from nearby the place of the incident vide seizure memo (Ex.P/5). The IO claims to have recorded further information (Ex.P/31) from the accused Ramesh and Ex.P/32 from the accused Bhura @ Bhuralal regarding they having concealed the remaining part of the rope used in the murder. In furtherance of these informations, the IO claims to have effected recovery of an old used black and white nylon rope ad measuring 100 inches long and 3 cm thick which was seized vide memo Ex.P/6. Both the rope pieces were forwarded to FSL for comparison, from where a report (Ex.P/34) was received with the opinion that both rope pieces were similar in respect of colour, number of plies, direction of twist, average thickness and the material. 6. The statements of the material witnesses were recorded under Section 161 Cr.P.C. and after concluding investigation, a charge-sheet was filed against the accused-appellants for the offences under Sections 302 & 201 IPC. 6. The statements of the material witnesses were recorded under Section 161 Cr.P.C. and after concluding investigation, a charge-sheet was filed against the accused-appellants for the offences under Sections 302 & 201 IPC. Since the offence under Section 302 IPC was sessions triable, the case was committed to the court of Sessions Judge, Banswara for trial who framed charges against the accused for the above offences. The accusedappellants pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 36 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the appellants denied the same and claimed to have been falsely implicated. They submitted that the FIR was lodged against Vinod and rather than arraigning him as an accused, they were falsely implicated by the IO in this case. 7. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and upon appreciating the material available on record, the learned trial court proceeded to convict and sentence the appellants as above by the impugned judgment which is assailed in the instant case. Hence this appeal. 8. Learned Counsel Shri Rajesh Panwar and Shri Ayush Gehlot representing the appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. Almost all the prosecution witnesses including the complainant Prabhu (PW.1) did not support the prosecution story and were declared hostile. As per them, the evidence of the sole remaining witness Vinod Damor (PW.7) which was relied upon by the trial court is highly dubitable and unconvincing. PW.7 Vinod Damor admitted in his cross-examination that he was present at the spot when the body of Subhash was cremated yet he did not disclose to anyone that his friend had been murdered. They further urged that in the statement of Vinod (PW.7), the allegation of beating Subhash was attributed to Dhuleshwar, uncle of Subhash and two appellants herein. However, Dhuleshwar was not arraigned as an accused in the case. They further urged that in the statement of Vinod (PW.7), the allegation of beating Subhash was attributed to Dhuleshwar, uncle of Subhash and two appellants herein. However, Dhuleshwar was not arraigned as an accused in the case. They further urged that the allegation that the scene of occurrence was manipulated was also attributed to Dhuleshwar who not having been arraigned as an accused in this case, no inference of culpability can be drawn against the accusedappellants from the statement of Vinod Damor (PW.7) that they murdered Subhash or that they were responsible for his death in any manner. Shri Panwar, further urged that the trial court was absolutely unjustified in placing reliance on the FSL Report (Ex.P/34). He contended that a plastic rope is normally sold in big rolls from which pieces are cut by the shopkeepers and are sold to the customers as per their requirement. He contended that the possibility that rope piece found at the place of incident and that recovered from the accused having been purchased separately cannot be ruled out. 9. He further urged that the prosecution failed to lead any evidence to establish that the appellants had any motive for committing the offence. The persons to whom the motive was attributed were not even prosecuted. Thus, as per him, there is nothing on record of the case which can satisfy the Court that the accused-appellants are responsible for the murder of Subhash. As per Shri Panwar, the learned trial court proceeded purely on conjectures, surmises and misplaced assumptions from the flimsy pieces of evidence viz. the fake recoveries, call details etc. and unreliable testimony of PW.7 Vinod in convicting and sentencing the accused-appellants. He thus implored the Court to accept the appeal, set aside the impugned judgment and acquit the accusedappellants of the charges. 10. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' Counsel. He contended that the deceased Subash was having a love affair with Sushri Chayna D/o Popatlal (PW.11). However, the family members of Subhash were bearing a suspicion that he was indulged in an illicit affair with the wife of accused Ramesh. On this ground, the family members of Subhash indulged in beating him often. On the fateful day, Subhash was assaulted, killed and thereafter his body was submerged in the well after weighing it down with heavy stones. On this ground, the family members of Subhash indulged in beating him often. On the fateful day, Subhash was assaulted, killed and thereafter his body was submerged in the well after weighing it down with heavy stones. Prabhu (PW.1), the father of deceased Subhash who too was indulged in the conspiracy of murdering the boy, gave a false report to the SHO PS Arthuna with the objective of misdirecting the investigation. During course of investigation, the truthful statement of Vinod (PW.7) a friend of Subash, was recorded by the Judicial Magistrate, Bagidaura District Banswara and the call details (Ex.P/26) were procured which clearly established the fact that the mobile sim of Subhash had been used by the accused persons. 11. The two accused after being arrested gave voluntary informations to the IO under Section 27 of the Evidence Act in furtherance whereof part of the rope which was used to tie the stone to the body of the deceased was recovered from behind the house of the accused Ramesh. The said rope piece and the remaining part of the rope piece recovered from the house of the accused were forwarded to the FSL from where a report (Ex.P/34) was received with the opinion that both the rope pieces were identical in respect of the colour, number of plies, direction of twist, average thickness and the material. He thus, urged that these circumstances invariably point towards the only logical and possible conclusion i.e., the guilt of the accused-appellants. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the conviction of the appellants. 12. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and minutely re-appreciated the evidence available on record. 13. As is evident from the facts narrated above, the prosecution case is based primarily on circumstantial evidence and also on inferences sought to be drawn from the testimony of star witness Vinod Damor (PW.7). The tenor of the impugned judgment and the evidence of the IO indicates that the father of the deceased Subhash, Shri Prabhulal (PW.1) himself was involved in the incident. The tenor of the impugned judgment and the evidence of the IO indicates that the father of the deceased Subhash, Shri Prabhulal (PW.1) himself was involved in the incident. As per the prosecution case, the appellants are the close family members of Prabhu (PW.1), father of deceased Subhash and they allegedly beat up and murdered the boy because of a suspicion that he was indulged in an extra-marital affair with the wife of the Ramesh and thereafter intentionally cremated the dead body so as to destroy the evidence. The trial court placed implicit reliance on the evidence of PW.7 Vinod, who is a class-fellow and friend of Subhash. For the sake of ready reference, we are persuaded to reproduce herein the statement given by Vinod Damor (PW.7) in his examination-in-chief:- 14. On going through the statement, it is clear that witness has given an absolutely confused deposition. He attributed allegations to Dhula @ Dhuleshwar, uncle of Subhash of planting the mobile and footwear of the deceased near the well so as to give the incident a colour of an accident. However, Dhula @ Dhuleshwar was neither arraigned as an accused nor was he cited as a witness by the prosecution. So far as the accused Ramesh is concerned, Vinod (PW.7) only stated that Ramesh also used to chase Subhash with the intention of beating him. The witness further alleged that the family members of the Subhash took the dead body out from the well and then cremated it whereas the practice in their community was of a burial. The witness admitted in his crossexamination that he was present at the spot when the dead body was cremated. He did not tell anyone about the events which he claims to have witnessed. In the same breath, the witness claimed that he told about his talk with Ramesh on the previous day to Dhula @ Dhuleshwar and Bhura Lal. Ex-facie, this part of his testimony makes his conduct dubitable. As the witness claimed to have precisely narrated the events which took place before the death of Subhash to Dhuleshwar and Bhuralal @ Bhura, there was no occasion for the witness to repeat this sequence to these very persons. Thus, we hold that the evidence of Vinod (PW.7) is totally unreliable and cannot be used to incriminate the accusedappellants in any manner whatsoever for the alleged murder of Subhash. 15. Thus, we hold that the evidence of Vinod (PW.7) is totally unreliable and cannot be used to incriminate the accusedappellants in any manner whatsoever for the alleged murder of Subhash. 15. The witness Ramlal (PW.4) stated that all the family members of Subhash namely Dhula, Prabhulal and Bhura refused to call the police and cremated the dead body. However, neither Dhula @ Dhuleshwar being the uncle nor Prabhulal being the father of the deceased have been charge-sheeted in this case for the offence under Section 201 IPC. Rather, Prabhulal was examined as a witness and he did not support the prosecution case. 16. In this backdrop, we feel that singling out the accusedappellant Bhura @ Bhuralal for the charge of murdering of Subhash or cremating his dead body would not be justified. 17. The trial court tried to give much credence to the fact that the IO Subhash Chandra Parmar (PW.14) stated that the accused persons used the mobile phone and sim of the deceased after his death and thus, this circumstance was incriminating in nature. Nevertheless, on going through the statement of the IO Subhash Chandra Parmar (PW.14) and the call details exhibited by the prosecution as Ex.P/26, we find that there is nothing, either in the statement of the IO or in call details which can satisfy the Court that either of the two accused, inserted the sim of the deceased in their mobile instruments or used the same at any point of time. 18. The most significant piece of circumstantial evidence on which the trial court placed reliance heavily while holding the accused-appellant guilty was that of the recovery of the two rope pieces. Suffice it to say that the incident took place on 10.11.2017. The family members of Subash took out his dead body and allegedly untied the rope which had been used to submerge/weigh the body down into the water of the well. Thus, the rope piece, if any, would either have been thrown away or could have been kept secure by the family members viz. Prabhu etc. A number of villagers collected at the spot. Thus, the rope piece, if any, would either have been thrown away or could have been kept secure by the family members viz. Prabhu etc. A number of villagers collected at the spot. No witness examined by the prosecution gave evidence to the effect that either of the accused were seen taking away or concealing the rope allegedly tied to weigh down the deceased or that they hide it behind the house of the accused Ramesh at Mark B of the Site Inspection Plan (Ex.P/7). The Investigating Officer Subhash Chandra Parmar (PW.14) stated that the accused Ramesh while in custody divulged that he beat up Subhash by stones which were lying at the spot near the Pipal tree and that the dead body had been tied with the aid of stones and rope which is concealed behind his house. The Investigating Officer, in his evidence, stated that the informations were recorded in Ex.P/30 and Ex.P/31. He further stated that in furtherance of these informations, the accused got recovered the two stones and a rope piece from behind his house, which fact was recorded in seizure memo Ex.P/5. The IO recovered yet another rope piece from behind the house of accused Ramesh which was seized vide seizure memo Ex.P/6. Manifestly, this deposition of the IO crates a doubt regarding the sanctity of the recovery proceedings. The IO did not elaborate anything about the information (Ex.P/31) and thus, it cannot be held to be proved as per law. 19. Significant it is to note that no witness examined by the prosecution stated that the rope piece recovered vide memo (Ex.P/5) was the same one which was tied to the body of the deceased to weigh it down in the water. Furthermore, as has been noticed above, the rope piece must have been removed by the family members of the deceased when the dead body was recovered. Therefore, there was no occasion for the accused to take the same away. 20. It may further be stated here that the possibility of both rope pieces having been cut from the same roll and sold separately cannot be ruled out and hence, no inference of culpability can be drawn against the accused by the mere fact that the FSL report (Ex.P/35) indicates that both rope pieces were similar in respect of colour, number of plies, direction of twist, average thickness and the material etc. 21. 21. Law is well settled by a catena of decisions that in a case based purely on circumstantial evidence, the prosecution is required to prove every link in the chain of circumstances by leading clinching evidence so as to complete the chain pointing infallibly towards the guilt of the accused and incompatible with his innocence. In the case at hand, we have found that the evidence about the chain of circumstances relied upon by the prosecution to bring home the charges against the accusedappellants is totally flimsy, far from convincing and sheerly based on conjectures and surmises and the same cannot be considered to be of any worth whatsoever even for a moment so as to affirm the guilt of the accused-appellants. The impugned judgment in our firm opinion is based sheerly on conjectures and surmises and cannot be sustained. 22. In wake of the discussion made hereinabove, the appeal deserves acceptance and is hereby allowed. The impugned judgment dated 24.05.2019 is hereby quashed and set aside. The appellants are acquitted of the charges. They are in jail and shall be released forthwith, if not warranted in any other case. 23. However, keeping in view the provisions of Section 437-A Cr.P.C. the accused appellants are directed to furnish personal bond in the sum of Rs.15,000/- each 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 appellants shall appear before the Supreme Court. Record be returned to the trial court forthwith.