Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2256 (RAJ)

Surendra Kumar v. State of Rajasthan

2019-08-21

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : Sandeep Mehta, J. 1. These two appeals arise out of an incident dated 28.09.2006, in which Mohd. Hussain, a taxi driver, was murdered near the Meja Dam, District Bhilwara. The Investigating Officer investigated the matter and filed two separate charge-sheets because appellants herein, i.e. Surendra Kumar and Smt. Usha Joshi, were arrested earlier, whereas, the accused Mukesh @ Sonu was absconding. The trials of Surendra Kumar and Smt. Usha Joshi were held jointly, whereas, the case of the accused Mukesh @ Sonu arrested later was tried separately. The Sessions Case No. 9/2007 registered against the accused appellants Surendra Kumar and Smt. Usha Joshi was decided vide judgment dated 17.04.2008, whereby the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara convicted and sentenced them as under : Name of the appellant Offence for which convicted Sentence awarded Surendra Kumar and Smt. Usha Joshi Section 302/34 IPC Life term imprisonment alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo six months' rigorous imprisonment Section 201 IPC Five years' rigorous imprisonment alongwith a fine of Rs. 3,000/- and in default of payment of fine, further to undergo three months' rigorous imprisonment Surendra Kumar Section 3/25 Arms Act Three years' rigorous imprisonment alongwith a fine of Rs. 5,000/- and in default of payment of fine, further to undergo three months' rigorous imprisonment The substantive sentences were ordered to run concurrently. 2. Brief facts relevant and essential for disposal of the instant appeals are noted hereinbelow. The complainant Nasir Hussain (P.W. 3) lodged a written report (Ex. P/3) at the Police Station Mandal, District Bhilwara on 29.09.2006 at 8.15 a.m. alleging inter alia that his brother Mohd. Hussain, aged 48 years, resident of House No. 8, Barkat Colony, Savina Kheda, Udaipur was engaged as a driver on the Indica car No. RJ-27-1C-2125 attached with one Arawali Tourists Agency. One Arvind Singh Bishnoi, resident of Bhilwara approached his brother to take the Indica car on hire on the previous day, i.e. 28.09.2006. A woman and another man were accompanying him. In the night at about 10 p.m., the Indica car, driven by Mohd. Hussain collided with an electric pole near Meja Dam and turned turtle, due to which, the complainant's brother Mohd. Hussain died at the spot, whereas the woman and the two male passengers, who might have been injured, abandoned the car and went away. In the night at about 10 p.m., the Indica car, driven by Mohd. Hussain collided with an electric pole near Meja Dam and turned turtle, due to which, the complainant's brother Mohd. Hussain died at the spot, whereas the woman and the two male passengers, who might have been injured, abandoned the car and went away. On the basis of the report aforesaid, an FIR No. 191/2006 (Ex. P/37) was registered at the Police Station Mandal for the offence under Section 304-A IPC and the investigation commenced. 3. The Investigating Officer proceeded to the place of the incident and prepared the site inspection plan (Ex. P/5) noticing that two cartridges were lying nearby the place where the car had overturned. Blood was spread around at numerous places. The empty cartridge cases were seized vide seizure memo (Ex. P/6). The Indica car, which met with the accident was taken into possession. Blood stained and plain soil was collected from the spot. When the car was minutely examined, a bullet piece was found embedded in its steering, which was extracted and seized vide seizure memo (Ex. P/11). The Investigating Officer made enquiries from the employees of the Dak Bungalow, Meja Dam, near which, the accident had taken place, namely, Ladu Singh (P.W. 6) and Gog Singh (P.W. 9), who stated that they were working as Guards on night duty on the Meja Dam Dak Bungalow. They saw a car coming from towards Bhilwara Kotadi at about 10 o'clock. The car met with an accident. The witnesses heard two to three explosions. Two boys and a girl came towards them and told them that the car met with an accident and had overturned and then, they went away. 4. The body of Mohd. Hussain which was found lying near the overturned car was taken for postmortem to the Government Hospital, Bhilwara. The Medical Jurist issued the postmortem report (Ex. P/15) opining that the cause of death of Mohd. Hussain was head injury and gunshot injury. Thereupon the Investigating Officer proceeded to add the offence u/S. 302 IPC in the file. The persons, who were suspected to have taken the car on rent, were tracked. 5. The Investigating Officer proceeded to arrest the accused Smt. Usha and Surendra Kumar on 10.10.2006 vide arrest memos Ex. P/54 and Ex. P/55 respectively. Both were kept Baparda because it was proposed to subject them to test identification. The persons, who were suspected to have taken the car on rent, were tracked. 5. The Investigating Officer proceeded to arrest the accused Smt. Usha and Surendra Kumar on 10.10.2006 vide arrest memos Ex. P/54 and Ex. P/55 respectively. Both were kept Baparda because it was proposed to subject them to test identification. The accused Surendra Kumar gave information (Ex. P/57) to the Investigating Officer on 13.10.2006 disclosing that he, Mukesh and Smt. Usha had stayed in a hotel at Udaipur and that he passed on the pistol used in the incident to a person named Suresh at Indore. However, no pistol was recovered in furtherance of this information. The accused Surendra Kumar gave yet another information to the Investigating Officer at Indore on 14.10.2006 (Ex. P/58), in which he changed his previous version and apprised the Investigating Officer that the pistol, with which he had fired at the driver of the taxi car had been concealed in a cold storage at Savina Kheda, Udaipur. He also told the Investigating Officer that the previous information was false and had been given with the intention to mislead. The accused then gave yet another information (Ex. P/59) to the Investigating Officer on 16.10.2006, in which, he divulged that the previous two informations given by him regarding the concealment of the pistol were false and misleading and that the pistol was concealed in his own Kachcha House at Bhilwara. In furtherance of this information, the Investigating Officer proceeded to the house of the accused at Gulmandi Bhilwara on 17.10.2006. The accused went in the house and took out a pistol concealed in a box lying inside the room. The pistol was seized vide seizure memo (Ex. P/41). 6. The accused Usha Joshi and Surendra Kumar were subjected to test identification at the hands of Ladu Singh, Gog Singh and Rafique Khan (another taxi driver present at the taxi stand, when the accused took the taxi on rent). These proceedings were held at the District Jail, Bhilwara on 12.10.2006. All the three witnesses correctly identified the accused in the test identification proceedings. These proceedings were held at the District Jail, Bhilwara on 12.10.2006. All the three witnesses correctly identified the accused in the test identification proceedings. After concluding the investigation as stated above, the Investigating Officer proceeded to file a charge-sheet against the accused Surendra Kumar for the offences under Sections 302, 201, 120-B IPC and Section 3/25 of the Arms Act and against the accused Smt. Usha Joshi for the offences under Sections 302, 201 and 120-B IPC. 7. As the offences were Sessions triable, the case was committed and transferred to the Court of Additional Sessions Judge (Fast Track) No. 1, Bhilwara, where charges were framed against the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 32 witnesses and exhibited 65 documents to prove its case. It may be stated here that while the trial was underway, the FSL Report (Ex. P/64) was received, as per which, the empty cartridges seized from the spot, the bullet found embedded in the steering of the car were opined to have been fired from the country-made pistol recovered at the instance of the accused Surendra Kumar in furtherance of the information provided by him to the Investigating Officer. 8. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and upon appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above vide the impugned judgment dated 17.04.2008, which is assailed by the two accused through these two separate appeals. 9. Mr. T.R.S. Sodha, learned counsel representing the appellant Smt. Usha Joshi and Mr. G.R. Bhari, learned Amicus Curiae, representing the appellant Surendra Kumar, vehemently and fervently urged that the entire prosecution case is false and fabricated. As per them, the chain of circumstantial evidence relied upon by the prosecution is totally unconvincing and does not even remotely connect the appellants with the crime. They urged that even if it is presumed for a moment that the accused took the taxi of the deceased on hire, in absence of any evidence regarding the events preceding the incident and as there is total lack of evidence to prove that the accused fired the gun-shots killing the deceased with common intention to do so, they could not have been convicted for the offences alleged. It was contended that the findings of the trial court are based sheerly on conjectures and surmises and hence, the impugned judgment deserves to be set aside. 10. They argued that the identification of the accused by the witnesses Gog Singh and Rafique Khan is doubtful. The other guard Ladu Singh did not support the prosecution story and was declared hostile. The prosecution story that after having taken the vehicle on hire, the accused went to the house of Smt. Shama (P.W. 20) and Smt. Pratima (P.W. 21), is absolutely concocted. Even if the same is assumed to be true, then too the evidence of these witnesses is inconsequential because they did not state that the accused came to their house in the vehicle of the deceased. Learned counsel Mr. Bhari further urged that the recovery of the pistol made at the instance of the accused Surendra Kumar is apparently fabricated because the first two informations given by him to the Investigating officer did not lead to the discovery. 11. As per him, the Investigating Officer was out and out to fabricate evidence and effect the concocted recovery so as to ensure the success of the case. As per him, the recovery is fit to be discarded. 12. Mr. Sodha, learned counsel representing the appellant Smt. Usha Joshi, urged that even if it is assumed for a moment that the lady was present in the car with the co-accused Surendra Kumar, it cannot be inferred by any stretch of imagination that she was having any common intention to kill the deceased. He submitted that no motive has been imputed to the accused for the murder of Mohd. Hussain. The prosecution did not allege that the deceased was carrying any valuables. The genesis of the occurrence is not known. The highest allegation of the prosecution regarding the fatal gun-shot injury caused to the deceased can be attributed solely to the accused Surendra Kumar because the pistol used to fire the gunshot at the deceased was recovered on his information. He, thus, urged that the trial court was totally unjustified in invoking the theory of common intention so as to hold the appellant Smt. Usha Joshi guilty for the offences under Sections 302 read with Sec. 34 and Section 201 IPC. He, thus, urged that the trial court was totally unjustified in invoking the theory of common intention so as to hold the appellant Smt. Usha Joshi guilty for the offences under Sections 302 read with Sec. 34 and Section 201 IPC. On these grounds, learned counsel representing the respective appellants implored the court to accept the appeal, set aside the impugned judgment, acquit the appellants of the charges. 13. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urged that neither any of the prosecution witnesses nor the Investigating Officer had any occasion or cause to falsely implicate the accused for the murder of Mohd. Hussain. The deceased was a taxi driver. The accused came to the taxi stand and took his taxi on hire in a routine manner. The witnesses were not even aware that the deceased had been murdered and this fact came to light only after the postmortem was conducted. The witness Rafique (P.W. 11) was present at the taxi stand when the accused approached Mohd. Hussain for hiring his taxi. The evidence of Rafique is cogent, clinching and convincing on the aspect that the appellants herein and another man came to the taxi stand on 28.10.2006 and hired the taxi of Mohd. Hussain. Rafique Khan was called upon to identify the accused appellants in the test identification proceedings and during his sworn testimony and he correctly identified both of them. Nothing adverse was elicited in the cross-examination of Rafique in this regard, which can dilute the evidentiary worth of his version. Since the accused were not known to the witnesses from before, there is no reason for Rafique Khan to identify or to implicate them falsely in the case. He further submitted that the witnesses Gog Singh, who was posted as a Guard at the Meja Dam Dak Bungalow saw the three accused near the vehicle involved in the accident. On being asked by Gog Singh, the accused disclosed that the car had met with an accident and then they disappeared in the night. He urged that Gog Singh also did not know the accused from before and thus, there is no reason as to why he would falsely identify then in the test identification proceedings and during his sworn testimony, as the persons, who had approached him on the fateful night. He urged that Gog Singh also did not know the accused from before and thus, there is no reason as to why he would falsely identify then in the test identification proceedings and during his sworn testimony, as the persons, who had approached him on the fateful night. Learned Public Prosecutor, thus, urged that the prosecution has proved beyond all manner of doubt, the complete chain of circumstances right from the time when the accused appellants took the taxi of Mohd. Hussain on hire from the Savina taxi stand till right after the murder, when the three accused were confronted by Ladu Singh and Gog Singh and they gave a misinformation to these witnesses that the car had met with an accident. 14. He further submitted that the procedure of recovery of the pistol effected in furtherance of the information provided by the accused Surendra Kumar is absolutely full of sanctity because the accused gave misleading informations to the Investigating Officer on no less than three occasions. The Investigating Officer faithfully recorded these informations and finally the third one resulted into the recovery of pistol. If at all, the endeavour of the Investigating Officer was to effect a fake recovery, he could have done it at the first instance. The pistol recovered at the instance of the accused, the cartridges recovered from nearby the place of incident and the bullet embedded in the steering of the vehicle were forwarded to the Forensic Science Laboratory for ballistic examination, from where an affirmatory report (Ex. P/64) was received opining that empty cartridges as well as the bullet had been fired from the pistol forwarded for comparison. Learned Public Prosecutor, thus, urged that the prosecution has proved the complete chain of circumstances successfully and beyond all manner of doubt establishing that the accused took the taxi of the deceased on hire and while they were passing nearby the Meja Dam, the accused Surendra Kumar fired the pistol at Mohd. Hussain killing him instantaneously. As the driver was killed, the car went out of control and overturned. Fortuitously, the accused escaped unhurt. Thus, as per the learned Public Prosecutor, the impugned judgment is absolutely unimpeachable. With these submissions, learned Public Prosecutor implored the court to dismiss the appeal. 15. We have given our thoughtful consideration to the arguments advanced at bar, threadbare re-appreciated the evidence available on record and have perused the impugned judgment. Fortuitously, the accused escaped unhurt. Thus, as per the learned Public Prosecutor, the impugned judgment is absolutely unimpeachable. With these submissions, learned Public Prosecutor implored the court to dismiss the appeal. 15. We have given our thoughtful consideration to the arguments advanced at bar, threadbare re-appreciated the evidence available on record and have perused the impugned judgment. 16. The fact that the accused hired the taxi of Mohd. Hussain is well-established from the evidence of Rafique (P.W. 11), who stated in his sworn testimony that he was also standing at the taxi stand on 28.10.2006, when the accused came there. They took the taxi of Mohd. Hussain on hire for going towards Pansal Chauraha, Bhilwara. The accused Surendra Kumar impersonated himself as Arvind Bishnoi while engaging the taxi. As per the affirmative evidence of the Investigating Officer Shri Durga Prasad (P.W. 23), the accused appellants were arrested on 10.10.2006. They were kept baparda and were thereafter subjected to test identification at the hands of this witness, who correctly identified the accused appellants as being the persons, who had taken the taxi of Mohd. Hussain on hire. The witness correctly identified both the accused appellants during his sworn testimony as the people, who had engaged the taxi of Mohd. Hussain. In cross-examination, a suggestion was given to the witness that he did not know Mohd. Hussain. He denied the said suggestion and claimed to be on friendly terms with the deceased. He also denied the various other defence suggestions; that Mohd. Hussain did not work at the Arawali Taxi Stand or that the entry registered pertaining to the hiring of Mohd. Hussain's taxi was not available on the record. 17. Upon an overall evaluation of the evidence of this witness, we are duly satisfied that nothing was elicited by the defence during his cross-examination, which can detract from his allegation about identification of the two accused appellants as the persons, who came and engaged Mohd. Hussain's taxi for travelling to Pansal Chauraha, Bhilwara on 28.10.2006. The accused were not known to the witness who is an independent person having no cause to falsely implicate them. Thus, their correct identification by Rafique (P.W. 11) is an important link in the chain of circumstances. 18. Hussain's taxi for travelling to Pansal Chauraha, Bhilwara on 28.10.2006. The accused were not known to the witness who is an independent person having no cause to falsely implicate them. Thus, their correct identification by Rafique (P.W. 11) is an important link in the chain of circumstances. 18. As per the prosecution case, the accused went to the house of Smt. Shama (P.W. 20), who stated in her evidence that some person from Bhilwara, whom she knew by the name Dada, came to her house. This man was a Tantrik and thus, she knew him. A lady reporter named Kiran was accompanying him with her husband and a small child. They came in a car, which was parked outside her house. Shama took these persons to Pratima's house. These persons went away thereafter. Kiran called her later. These persons were invited back to come to the house of Pratima on 28.10.2006. Kiran called and asked whether Bhajan Sandhya was scheduled on 28th, to which, she replied in affirmative. On 28th Kiran came to the house of Pratima in an Indica car with two more persons. They had food at her house. 19. Pratima, when examined as P.W. 21, also gave evidence on the same lines and identified Kiran and Surendra as the persons, who came to her house with Shama. 20. After leaving the house of Pratima, the accused proceeded towards Meja Dam, where, the incident took place. The evidence of both these witnesses is natural, convincing and provides an important link in the chain of circumstances. 21. Two witnesses Ladu Singh and Gog Singh, who were on Guard duty at the Meja Dam Dak Bungalow were examined as P.W. 6 and P.W. 9 respectively. Both stated in their testimony that they heard a loud noise at about 10 o'clock in the night. They saw two men and a woman. While Ladu Singh did not identify any of the accused and was declared hostile, Gog Singh stated in his evidence that he and Ladu Singh were posted as Chowkidars on the Dak Bungalow Meja Dam. A car was seen coming from towards Bhilwara Kotadi in the night at about 9.50 p.m. It stopped at a distance of 200 yards from the Dak Bungalow. Two-three explosions were heard from the car. The car collided with the electric pole at a distance of 125 yards from the Dak Bungalow. A car was seen coming from towards Bhilwara Kotadi in the night at about 9.50 p.m. It stopped at a distance of 200 yards from the Dak Bungalow. Two-three explosions were heard from the car. The car collided with the electric pole at a distance of 125 yards from the Dak Bungalow. He and Ladu Singh came out and saw two boys and a woman. They approached these persons and asked them as to where they were coming from. These persons replied that they were coming from Udaipur and were going towards Jaipur and that their car had met with an accident. The boy stated that he was hurt on his hand. Thereafter, they went away towards Meja. The witnesses saw the car, which was overturned and a dead body was lying at a little distance. Police came to the scene of occurrence. Gog Singh identified the appellants in the test identification proceedings and he also correctly identified them in the court. Thus, his evidence also provides an important link in the sequence of events. 22. Dr. V.D. Sharma (P.W. 10), being the Medical Jurist posted at the M.G. Hospital, Bhilwara on 29.09.2006, conducted postmortem upon the body of the deceased Mohd. Hussain and issued the postmortem report Ex. P/15. He noted a gunshot entry wound just below the occipital prominence of the deceased. The corresponding exit wound was seen below the jaw. The track of the gunshot wound was 10 inches long. The cause of death was opined to be coma due to head injury caused by fire-arm. Nothing significant was elicited in the cross-examination of the doctor, which can discredit the evidentiary worth of his testimony. 23. Ummed Singh (P.W. 12) was posted as a Fieldman on the Meja Dam. He stated that he was preparing food in his room at about 10 o'clock. His room is at a distance of 5 to 7 feet from the Dak Bungalow. He heard the noise of an explosion, on which, he came out. On asking Gog Singh about the source of noise, he was apprised that an accident had taken place. The witness then stated that he went back to his room, locked the same and came out again. He saw two man and a woman going away. On enquiry, they replied that their vehicle had broken down and that they were going towards Meja. The witness then stated that he went back to his room, locked the same and came out again. He saw two man and a woman going away. On enquiry, they replied that their vehicle had broken down and that they were going towards Meja. The evidence of this witnesses is inconsequential on other aspects because he did not identify the accused. However, from his evidence, it is duly established that three persons were seen going away from the spot on the fateful night after the car had met with an accident. 24. Rampal (P.W. 13) was posted as Constable Driver at the Police Station Mandal. He undertook the mechanical inspection of the car No. RJ-27-1C-2125 and found that its steering, gear, clutch, brake and accelerator were not working properly because of the collision. The car was damaged from the front. On checking the steering, the witness found a bullet embedded therein, which fact he reported to the SHO. 25. Narayan Lal (P.W. 14) used to work as photographer at Mandal, Bhilwara. He was called by the police on the night of 28.09.2006 at about 12 o'clock and went to the place of the incident. He took photographs of the car and nearby area, where some cartridges were lying. He also took some photographs on 29th September. On 30th September, he was called to the Police Station Mandal, where he photographed the steering of the car, wherein a bullet was embedded. The 11 photographs taken on 28th September were collectively proved by the witness as Ex. P/20 and their negatives were proved as Ex. P/21. The photographs taken on 29th September were collectively proved as Ex. P/22 and their negatives were proved as Ex. P/23. The photographs taken on 30th September at the Police Station were proved as Ex. P/24 and their negatives were proved as Ex. P/25. No significant cross-examination was made from this witness. 26. Shankar Singh (P.W. 15), being the ASI posted at the Police Station Mandal seized the guest register of the Chetana Hotel, Udaipur, where, the accused allegedly stayed before taking the taxi of Mohd. Hussain on hire. 27. Manzoor Hussain (P.W. 16) stood as Panch witness in the Supurdginama Lash (Ex. P/2). The witness stated that on seeing perforations on the body of the deceased, they started bearing a suspicion that the incident was not an accident and rather, Mohd. Hussain on hire. 27. Manzoor Hussain (P.W. 16) stood as Panch witness in the Supurdginama Lash (Ex. P/2). The witness stated that on seeing perforations on the body of the deceased, they started bearing a suspicion that the incident was not an accident and rather, Mohd. Hussain had been murdered by shooting him. 28. Surendra Singh (P.W. 17) was posted as ASI at the Police Station Mandal on 28.09.2006. On that day, he received information about a car having overturned near Meja Dam and that the body of the driver lying nearby. He proceeded to the spot with Constable Hariraj and another policeman. The photographer was also taken along. The vehicle involved in the accident was seen lying overturned on the road near the wall of Meja Dam just besides the Dak Bungalow. A dead body was lying near the slope of the road, which was suspected to be of the car driver. The photographs of the spot were taken. The dead body was sent to the mortuary of the M.G. Hospital, Bhilwara. On checking the mobile phone found on the dead body, it came to light that the same was of one Mohd. Hussain. His brother Nasir Mohd. was informed. He approached the Police Station Mandal and lodged the report Ex. P/3. The witness prepared the Supurdginama Lash (Ex. P/2), took the report (Ex. P/4) regarding the missing articles of the deceased, prepared the site inspection plan (Ex. P/5) and seized the empty cartridge cases in presence of motbir witness vide seizure memo (Ex. P/6). He also prepared the seizure memo of the car (Ex. P/7), took out the bullet from the car steering and seized the same vide seizure memo Ex. P/8. Thereafter since the case took the turn of a murder, the investigation was handed over to the SHO. Nothing significant was elicited in the cross-examination of this witness. Otherwise also, since the witness investigated the matter in the light of an accident plain and simple, he gave formal evidence regarding the fact finding exercise undertaken by him. The witness upon cross-examination stated that nobody, including the Chowkidars of Meja Dam (Ladu Singh and Gog Singh), approached him to lodge the report of the accident. 29. Otherwise also, since the witness investigated the matter in the light of an accident plain and simple, he gave formal evidence regarding the fact finding exercise undertaken by him. The witness upon cross-examination stated that nobody, including the Chowkidars of Meja Dam (Ladu Singh and Gog Singh), approached him to lodge the report of the accident. 29. We feel that the failure of the two Chowkidars in approaching the ASI to lodge a report can be attributed to the general tendency of the common people in avoiding police proceedings. Furthermore, since till that time, the incident was being treated as accident plain and simple, the hesitation of the Chowkidars in approaching the police or lodging the report can very well be understood and is explicable. 30. Lalu Ram (P.W. 18) was posted as Head Constable at the S.P. Office, Bhilwara. He dealt with samples of the case received from the Police Station Mandal through Constable Satya Narayan, issued the forwarding letter and ensured transmission of the samples to the FSL. His evidence is cogent and clinching on these aspects. 31. Dulhe Singh (P.W. 19) stood as a Panch witness in the proceedings undertaken by the police regarding stay of the accused at the Chetana Hotel, Udaipur. He identified the two accused as the persons, who had come to his hotel. 32. Shaukeen Hussain (P.W. 22) was posted as the Malkhana Incharge at the Police Station Mandal during the relevant period. He stated that he received the various seized articles of the case from the ASI Surendra Singh in a sealed condition; entered the same in the Malkhana register (Ex. P/33) and deposited the same in the Malkhana. He also received and deposited the seized bullet piece and the steering cover in the Malkhana in a sealed condition. In addition thereto, he gave evidence regarding deposition of various other samples of the case in the Malkhana by the Investigating Officer concerned. Nothing significant was elicited in the cross-examination of this witness so as to doubt his testimony. 33. Durga Prasad (P.W. 23) was posted as the SHO, Police Station Mandal on 29.09.2006. He deposed that he received the report (Ex. P/3) lodged by Nasir Hussain at the M.G. Hospital, Bhilwara, upon which FIR No. 191/2006 was registered at the Police Station Mandal for the offences under Sections 279, 304-A IPC. 33. Durga Prasad (P.W. 23) was posted as the SHO, Police Station Mandal on 29.09.2006. He deposed that he received the report (Ex. P/3) lodged by Nasir Hussain at the M.G. Hospital, Bhilwara, upon which FIR No. 191/2006 was registered at the Police Station Mandal for the offences under Sections 279, 304-A IPC. As soon as Surendra Singh reported recovery of two empty cartridges cases from the scene of occurrence, the SHO took over the investigation of the case on 29.09.2006. The vehicle involved in the accident was subjected to mechanical examination and the fired bullet was recovered from its steering by Rampal, MTO. Blood stains found at various places in the car were collected in cotton swabs. The Investigating Officer, recorded the statements of the concerned witnesses. He arrested the accused appellant Usha Joshi W/o. Ishwar Singh Rajput on 10.10.2006 vide arrest memo Ex. P/54. She was instructed to remain Baparda and was sent to the Bhilwara Jail. On the same day, the accused Surendra Kumar was arrested vide arrest memo (Ex. P/55) and he too was instructed to remain baparda. 34. Both the accused were sent to judicial custody and subjected to test identification at the hands of the concerned witnesses. Thereafter, they were again taken into police custody. The accused Surendra Kumar initially gave an information to the Investigating Officer under Section 27 of the Evidence Act, which was recorded in memo Ex. P/57. In furtherance of the said information, the accused was taken to Indore on 14.10.2006, however, the information so recorded did not result into any recovery. The accused thereafter gave yet another information to the Investigating Officer stating that the earlier information given by him was false. The fresh information was recorded in memo Ex. P/58, in furtherance whereof, the accused was brought to Udaipur. However, the second information also did not fructify into any recovery. The Investigating Officer claims that at Udaipur, the accused gave yet another information Ex. P/59, in which he stated that the pistol used to kill the car driver was concealed in his Kachcha residential house at Bhilwara and that the earlier two informations given by him were false. However, the second information also did not fructify into any recovery. The Investigating Officer claims that at Udaipur, the accused gave yet another information Ex. P/59, in which he stated that the pistol used to kill the car driver was concealed in his Kachcha residential house at Bhilwara and that the earlier two informations given by him were false. The accused also gave an information under Section 27 of the Evidence Act disclosing the name of the third accused to be Mukesh and pointed out the place of the incident as well as the hotel where they stayed at Udaipur. Finally on 17.10.2006, the accused was taken to his residential house at Gulmandi Bhilwara and in presence of the Panch witnesses, he went inside and pointed out a small box, which was locked. The accused took out the key of the lock from a sill inside the room, opened the same, took out and handed over the pistol used in the incident to the Investigating officer, which was seized and sealed vide seizure memo Ex. P/41. The Investigating Officer took sanction to prosecute the accused Surendra Kumar for the offence under Section 25 of the Arms Act from the District Magistrate, Bhilwara. He stated that the seized articles were deposited in the Malkhana in a sealed condition. He finally concluded investigation and filed charge-sheet against the apprehended accused Surendra Kumar and Usha Joshi in the court concerned. The Investigating Officer proved the seized articles by exhibiting the same during his evidence. Lengthy and grilling cross-examination was conducted from the Investigating Officer regarding the proceedings of seizure etc. However, nothing significant adverse was elicited therein. 35. Thus, from the evidence of the Investigating Officer Durga Prasad (P.W. 23), it is clearly borne out that the accused Surendra Kumar and Usha Joshi were arrested as the finger of suspicion pointed towards them. They were kept baparda and were subjected to test identification at the hands of the concerned witnesses. The accused appellant Surendra Kumar tried to mislead the Investigating Officer by giving him frivolous informations under Section 27 of the Evidence Act regarding the weapon of offence. Finally, the third information (Ex. P/59) fructified and the pistol was recovered from the accused. 36. Gheesu Singh (P.W. 24) was posted as the Malkhana Incharge at the Police Station Mandal. The accused appellant Surendra Kumar tried to mislead the Investigating Officer by giving him frivolous informations under Section 27 of the Evidence Act regarding the weapon of offence. Finally, the third information (Ex. P/59) fructified and the pistol was recovered from the accused. 36. Gheesu Singh (P.W. 24) was posted as the Malkhana Incharge at the Police Station Mandal. He gave evidence regarding deposition and forwarding of the Malkhana articles of the case at hand to the FSL through Constable Satyanarayan in sealed condition. 37. Satryanarayan (P.W. 25), who was posted as a Constable at the Police Station Mandal at the relevant time, gave evidence regarding transmission of the 10 sealed sample packets of the FIR No. 191/2006 from the Police Station Mandal to the FSL, Jaipur via SP Office, Bhilwara. The witness stated that the articles were in sealed condition and were deposited at the FSL in the self same condition. 38. The evidence of Firoz Khan (P.W. 26) is of formal character. 39. Shankar (P.W. 27) stated that he used to operate the vehicle No. 3747, which was associated with the Arawali Tourist Company, with which 10 to 12 more taxis were attached. Whenever, a taxi was engaged by a customer, the entry thereof was made in the register. On 28.09.2006, he was at the taxi stand. At that time, three people came there, of which, two were males and one was a female. They hired the taxi (Indica car) of Mohd. Hussain bearing No. 2125 for going to Bhilwara. They left in the Indica car at about 02.45 p.m. in the afternoon. Later on, the witness came to know that the car had met with an accident and Mohd. Hussain had expired. Though the witness identified Surendra as one of the persons, who hired the taxi, but since no identification parade was held for this witness during investigation, his evidence regarding identification of the accused is not of much significance. 40. Om Prakash (P.W. 28) stood as Panch witness in the seizure of the clothes of the deceased vide seizure memo Ex. P/40 and attested the same. 41. Mohd. Saleem (P.W. 29) stood as a motbir in the proceedings of seizure of pistol made from the house of accused Surendra Kumar and attested the seizure memo Ex. P/41. He stood firm in cross-examination and fully supported the recovery. 42. P/40 and attested the same. 41. Mohd. Saleem (P.W. 29) stood as a motbir in the proceedings of seizure of pistol made from the house of accused Surendra Kumar and attested the seizure memo Ex. P/41. He stood firm in cross-examination and fully supported the recovery. 42. Rakesh Kumar Sharma (P.W. 30) was posted as the Judicial Magistrate, Bhilwara on 11.10.2006. He conducted the test identification proceedings of the two accused appellants at the District Jail, Bhilwara and proved the relevant memorandums. Nothing significant was elicited in the cross-examination of this witness, which can discredit the evidentiary worthy of the test identification proceedings. 43. Ajitabh Sharma (P.W. 31) issued the sanction (Ex. P/52) for prosecuting the accused Surendra Kumar for the offence under Section 3/25 of the Arms Act. 44. Ahmad Ali (P.W. 32), who was associated as a motbir in the seizure memo Ex. P/42, did not support the prosecution case and was declared hostile. 45. The accused upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, offered a bald denial to the same. 46. What is relevant to mention here is that the accused Surendra Kumar @ Sonu did not offer any explanation regarding the firearm, which was recovered at his instance. Pertinent question was put to both the accused by the court regarding the FSL Reports Ex. P/63 and Ex. P/64, to which, other than making a bald denial, the accused did not offer any explanation whatsoever. 47. We have thoroughly re-appreciated the evidence of the above witnesses and find that the prosecution has been able to prove the following circumstances beyond all manner of doubt. 48. From the evidence of Rafique Khan (P.W. 11), it is clear that the accused appellants came to the taxi stand on 28.09.2006 and engaged the taxi of Mohd. Hussain for going towards Pansal Chauraha, Bhilwara. At the time of engaging the taxi, the accused Surendra Kumar impersonated himself to be Arvind Singh Bishnoi. The prosecution has given convincing evidence regarding the accused being kept baparda after their arrest and the test identification of both the accused by this witness bears wholesome sanctity. 49. Hussain for going towards Pansal Chauraha, Bhilwara. At the time of engaging the taxi, the accused Surendra Kumar impersonated himself to be Arvind Singh Bishnoi. The prosecution has given convincing evidence regarding the accused being kept baparda after their arrest and the test identification of both the accused by this witness bears wholesome sanctity. 49. Though the two accused were not subjected to test identification by Smt. Shama (P.W. 20) and Smt. Pratima (P.W. 21), but the fact remains that both these witnesses took the name of Kiran even during their investigational statements and identified her in the court. Thus, identification of the accused by these two witnesses in the court during their evidence is also a relevant piece of evidence as per Section 11 of the Evidence Act and the court may presume the correctness thereof by taking recourse of Section 4 of the Evidence Act. 50. The Chowkidars posted at the Meja Dam dak bungalow, nearby which the incident took place, namely, Ladu Singh (P.W. 6) and Gog Singh (P.W. 9), appeared in the court and both gave evidence of the incident. Ladu Singh did not entirely support the prosecution story and was declared hostile. However, Gog Singh examined as P.W. 9 categorically stated in his evidence that he saw the two accused appellants coming from towards the ill-fated vehicle and on enquiry, both stated that their car had met with an accident. Thus, the evidence of this witness is relevant to establish the conduct of the accused just after the murder. Identification of the two accused by Gog Singh at that point of time is another significant and material piece of evidence, which provides an important link in the chain of circumstances relied upon by the prosecution. 51. The accused Surendra Kumar seems to be a very cunning man. As has been discussed above, he gave two prior informations (Ex. P/57 and Ex. P/58) to the Investigating Officer under Section 27 of the Evidence Act, which proved futile as the Investigating Officer could not effect any recovery in furtherance of these informations. However, the Investigating Officer acted with perseverance and the third information (Ex. P/59) provided by the accused Surendra Kumar resulted into the recovery of the weapon of offence, i.e. a pistol, from the house of the accused located at Gulmandi Bhilwara. However, the Investigating Officer acted with perseverance and the third information (Ex. P/59) provided by the accused Surendra Kumar resulted into the recovery of the weapon of offence, i.e. a pistol, from the house of the accused located at Gulmandi Bhilwara. The fact that the house was in the occupation of Surendra Kumar has been affirmed by Mohd. Saleem (P.W. 29) in his testimony. Other than offering a bald denial, the accused did not offer any explanation whatsoever for the firearm recovered from his house, which, upon being ballistically tested at the Forensic Science Laboratory and when compared with the empty cartridges lying at the place of incident and the bullet found embedded in the steering of the car No. RJ-27-1C-2125 gave a perfectly matching analysis. The expert at the FSL gave a positive opinion regarding the cartridges as well as the bullet having been fired from the pistol. The FSL Report (Ex. P/64) establishes this fact beyond all doubt. 52. The law is well-settled that in a case based on circumstantial evidence, the prosecution is under an obligation to prove beyond all manner of doubt that the chain of circumstances is complete that it invariably and unquestionably points towards the guilt and is totally incompatible with the innocence of the accused. 53. The prosecution has proved the identify of the accused Surendra Kumar and Smt. Usha Joshi as per the persons, who hired the taxi of Mohd. Hussain. This fact coupled with the circumstance that the accused were seen going away from the car in question just after the incident is sufficient to prove the fact that both these accused were present therein, when the fatal gunshot was fired at the deceased Mohd. Hussain. 54. The contention of the learned defence counsel that the accused had no motive to kill the deceased and thus, the prosecution case should be discarded. In a criminal case, motive may provide an important corroborative link for establishing the guilt of the accused. However, motive is not a direct link of evidence and may be used as corroboration to other evidence, which the prosecution would be required to adduce so as to prove its case against the accused. Thus, motive is only one of the factors, which may persuade the court to hold the accused guilty of charge. However, motive is not a direct link of evidence and may be used as corroboration to other evidence, which the prosecution would be required to adduce so as to prove its case against the accused. Thus, motive is only one of the factors, which may persuade the court to hold the accused guilty of charge. However, it is quite possible that in every case, the prosecution may not be having the evidence of motive, which may be hidden in the mind of the accused. Thus, presence of motive is not a sine qua non in every criminal case for bringing home the charge. Thus, lack of direct evidence about motive in the present case would not detract from the credit-worthiness of the prosecution as against Surendra Kumar. 55. The fact that the weapon used to fire the fatal gun-shot at the deceased Mohd. Hussain was found in possession of the accused appellant is a strong incriminating piece of evidence and as no explanation whatsoever was offered by the accused Surendra Kumar for being in possession thereof, owing to sheer lack of explanation by the accused Surendra Kumar, the same goes a long way in establishing his guilt for the charge of committing the murder of Mohd. Hussain. Thus, it is our firm opinion that the trial court appreciated the evidence in an absolutely apropos manner and was perfectly justified while recording the guilt of the accused Surendra Kumar @ Sonu for the charge of committing murder of Mohd. Hussain. 56. In view of the discussion made above, we are of the firm opinion that the prosecution has indeed proved all links in the chain of circumstances for establishing the guilt of the accused Surendra Kumar. 57. Now coming to the case of the accused appellant Smt. Usha Joshi @ Kiran. True it is that her presence with the accused Surendra Kumar throughout the sequence of events right from the time when the taxi of Mohd. Hussain was taken on hire till the incident took place is well-established by the evidence of the prosecution witnesses, but still we have to consider whether merely by these circumstances, was the trial court justified in convicting her for the charge under Section 302 with the aid of Section 34 IPC. 58. It is undisputed that no motive has been attributed by the prosecution to the accused for committing the murder of Mohd. Hussain. 58. It is undisputed that no motive has been attributed by the prosecution to the accused for committing the murder of Mohd. Hussain. Since it is not the case of the prosecution that the deceased was carrying any valuables, manifestly, theft or robbery was not the motive of murder. What is significant to note here is that the accused as well as the deceased were travelling together in the vehicle and thus, by firing at the deceased while he was at the wheel, the accused would risk injury to their own lives because once the driver lost control over the vehicle, there would arise an imminent possibility that the vehicle would collide with some other object or run off the road. This is precisely what happened. As per the site inspection plan, the vehicle was found overturned. 59. From these facts, we are convinced that something untoward must have flared up between the passengers and the deceased driver just before the incident, which led the accused passenger Surendra Kumar firing the fatal gunshot at the driver deceased Mohd. Hussain. Thus, we feel that for the sheer lack of evidence regarding motive and common intention, it would not be safe to convict the appellant Usha for the charge of murdering the deceased Mohd. Hussain with the aid of Section 34 IPC. 60. As an upshot of the above discussion: (1) The appeal preferred on behalf of the accused appellant Surendra Kumar @ Sonu [D.B. Criminal Jail Appeal No. 398/2008] is dismissed and his conviction and the sentences awarded under the impugned judgment dated 17.04.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara are affirmed. (2) The appeal preferred on behalf of the accused Smt. Usha @ Kiran @ Muskan @ Jaya @ Priya Joshi [D.B. Criminal Appeal No. 639/2009] is allowed and the impugned judgment dated 17.04.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara is quashed and set aside qua her. She is acquitted of all the charges. She is on bail. Her bail bonds are discharged. However, keeping in view the provisions of Section 437-A Cr.P.C., the acquitted accused appellant is directed to furnish a personal bond in the sum of Rs. She is acquitted of all the charges. She is on bail. Her bail bonds are discharged. However, keeping in view the provisions of Section 437-A Cr.P.C., the acquitted accused appellant is directed to furnish a personal bond in the sum of Rs. 40,000/- 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. 61. As the appellant Surendra Kumar was provided the services of a Legal Aid Counsel, we hereby direct that a copy of the instant judgment shall be forwarded to him at the jail concerned forthwith. The Legal Clinic established at the jail, where the appellant Surendra Kumar is lodged, shall provide assistance to the convict with the collaboration of the Rajasthan High Court Legal Services Committee, in case the convict desires to file an appeal against the instant judgment.