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2019 DIGILAW 2268 (RAJ)

Purushottam v. State of Rajasthan

2019-08-22

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Appellant had faced trial in FIR No. 386 dated 10.09.2012, registered at Police Station Nainwa, District Bundi under Section 302 Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. FIR was registered on the basis of the statement of the complainant-Giriraj Meena recorded on 10.09.2012. Prosecution story, in-brief, is that on 02.09.2012 Kajod aged about 35 years, brother of the complainant and appellant-Purushottam were taking liquor in the evening. However, thereafter Kajod could not be traced. Complainant had lodged missing report of his brother Kajod. On 10.09.2012 police officials had brought Purushottam Soni. Complainant was informed that appellant had left the dead body of Kajod in the fields of Satayanarayan which was being cultivated by Sheoji Dhankar. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charges were framed against the appellant under Section 302, 394 IPC and Section 3(2)(v) of the SC/ST Act. 5. Appellant did not plead guilty to the charges framed against him and claimed trial. 6. In order to prove its case, prosecution examined twenty two witnesses during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), prayed that he was innocent. 7. Appellant did not examine any witness in his defence. 8. Trial court vide impugned judgment/order dated 30.06.2014 ordered the conviction and sentence of the appellant under Section 302 and 394 IPC. Hence, the present appeal by the appellant. 9. Learned counsel for the appellant has submitted that present case rests on circumstantial evidence. Prosecution had failed to complete the chain of circumstances leading to the guilt of the appellant. There was no missing report proved on record which had been allegedly lodged by the complainant. Complainant in his cross-examination had stated that in the missing report he had alleged that his brother was missing for the last 10-12 days. Hence, story put forth by the complainant that he had seen his brother in the company of the appellant on 02.09.2012 was falsified. FIR was registered on 10.09.2012. Complainant has stated in his examination-in-chief that he had lodged the missing report after 2/4 days from 02.09.2012. As per the prosecution story, appellant had committed the murder of deceased with a view to loot him. FIR was registered on 10.09.2012. Complainant has stated in his examination-in-chief that he had lodged the missing report after 2/4 days from 02.09.2012. As per the prosecution story, appellant had committed the murder of deceased with a view to loot him. If that be so, there was no occasion for the appellant to leave the watch worn by the deceased at the spot. Appellant was arrested on 10.09.2012 after recovery of the dead body and all the formalities were completed by the prosecution. Hence, it was evident that the appellant has been falsely framed in this case. Ex. P33 statement of the appellant alleged to have been suffered under Section 27 of the Evidence Act was recorded on 12.09.2012. A perusal of the said statement reveals that appellant could show the fields and the place of incident where he had removed the Murkiya (earrings) worn by the deceased. Since the dead body had already been allegedly recovered at the instance of the appellant on 10.09.2012, there was no occasion for the appellant to have offered to show the place of incident on 12.09.2012. PW17-Murlidhar had stated in his examination-in-chief that at the instance of the police, he had again prepared the earrings sold to him by the appellant, which had already been melted. In case the earrings allegedly looted by the appellant had been melted, there was no occasion to get the same remade by the investigating agency. This also shows that the appellant might have been falsely framed in this case. The dead body was not in a position to be identified. The owner of the fields from where the dead body had been recovered was not examined, nor the person cultivating that field had been examined during trial. Shopkeeper Ram Bilas and Mukesh Kumar who had stated that Kajod and Purushottam were together till the evening on 02.09.2012 were also not examined during trial. 10. Learned State counsel has opposed the appeal. 11. Present case rests on circumstantial evidence. It has been held by the Hon'ble Supreme Court in the case of Brajendrasingh Vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:- "There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. 11. Present case rests on circumstantial evidence. It has been held by the Hon'ble Supreme Court in the case of Brajendrasingh Vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:- "There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial." 12. Complainant-Girraj while appearing in the witness-box as PW1 deposed that on 02.09.2012 his brother was taking liquor alongwith the appellant at about 6/7 p.m. at Gudhadevji liquor vend. Thereafter, appellant and Kajod left towards the well and he returned home. Complainant-Girraj while appearing in the witness-box as PW1 deposed that on 02.09.2012 his brother was taking liquor alongwith the appellant at about 6/7 p.m. at Gudhadevji liquor vend. Thereafter, appellant and Kajod left towards the well and he returned home. On the next day his brother kajod did not return home and he waited for him upto 12/1 'O'clock. Then he went for search of his brother in Gudhadevji village. Shopkeeper Rambilas and Mukesh told him that Kajod and Purushotam were seen together till the evening but thereafter they did not know about their whereabouts. Rambilas made a phone call to Purushottam and Purushottam had informed him that he was at Tonk. He had left Kajod at village Gudhadevji. For 2/4 days he had searched for his brother and then he lodged missing report in the Police Station Nainwa. He also searched for appellant-Purushottam and he was found on the 9th. Police apprehended appellant from his well. Appellant was sitting in the field. At that time he (witness) was present at Nainwa Police Station. Police had told him that they should proceed towards the well belonging to Purushottam. He went alongwith the police and appellant told the police that they should proceed towards village Gudhadevji and he would disclose the whereabouts of Kajod. Then they returned to village Gudhadevji. Appellant disclosed that Kajod was lying dead in the fields of Satyanarayan and further stated that he had murdered Kajod at that place. On query as to why he had killed Kajod, appellant stated that he had murdered him to loot his earrings and locket worn by him in his neck and Rs. 5000/-. PW1 further stated that he had identified the dead body lying in the fields from shoes worn by the deceased and the dead body had been eaten by the dogs and the body parts were lying here and there. The watch and 'Kada' of the deceased were also lying in the fields. The dead body was handed over to him by the police for cremation purposes. In his cross-examination he deposed that he submitted the missing report in the police station and the same had been written by the lawyer but he could not tell the name of the lawyer. In the report he stated that his brother Kajod was missing for the last 8/10 days. He had raised suspicion against the appellant in the said report. In the report he stated that his brother Kajod was missing for the last 8/10 days. He had raised suspicion against the appellant in the said report. He had also stated that at the spot skeleton was recovered and the same was not in a position to be identified. 13. PW4-Khemraj deposed that on 12.09.2012 appellant had got recovered earrings from Govind Jewellers Bhandar, Tonk. He further deposed that on 13.09.2012 appellant had got recovered Rs. 13,000/- from his fields on the basis of the disclosure statement suffered by him. 14. PW11-Mahaveer deposed that he knew the appellant present in the Court. About a year and three months back he had seen the appellant alongwith Kajod at about 6/6:30 p.m. going towards the well of the appellant. Thereafter, he had not seen Kajod. 15. PW12-Salaniya deposed that Kajod had died 15-16 months back. He had seen the appellant and Kajod together at Gudhadevji liquor vend and thereafter he had not seen Kajod. 16. PW14-Santra Bai deposed that Kajod was her husband. She knew the appellant present in the Court. Her husband had died two and half years back. Appellant was her husband's friend and used to meet him at Gudhadevji and they also used to talk to each other on phone. Appellant also used to visit their house. Before his death her husband had gone to Gudhadevji. Wife of the appellant was staying in her parental house. The family members of the wife of the appellant were demanding money from the appellant. Appellant had asked her husband to give him money so that he could bring back his wife. She did not know whether her husband had given money to the appellant or not. The day her husband had gone to Gudhadevji he had worn earrings and was also carrying mobile phone and 5000-6000/- rupees in cash. Her husband did not return home in the evening from Gudhadevji. They had searched for him and after nine days the dead body of her husband was recovered from the fields of Satyanaryan. Thereafter, on enquiry she came to know that on the day when her husband had left the house he had met Purushottam and had gone to the liquor vend. They had made a phone call to the appellant and both of them were together. After recovery of the dead body of her husband Purushottam was not available. Thereafter, on enquiry she came to know that on the day when her husband had left the house he had met Purushottam and had gone to the liquor vend. They had made a phone call to the appellant and both of them were together. After recovery of the dead body of her husband Purushottam was not available. Purushottam had committed the murder of her husband on account of earrings worn by him. Her husband might not have given money to the appellant. On the day her husband had not returned home, they had sent her son Bhudhiprakash and Girraj to look for him. In her cross-examination she admitted that dead body of her husband was not in an identifiable condition. 17. PW15-Rajesh Kumar deposed that he had taken photographs of the deceased. He also deposed that the dead body was lying in a decomposed condition. In his cross-examination he deposed that face of the deceased was not identifiable and it could not also be said that the dead body was of man or woman. Shoes, watch, Kada and earrings were lying at the spot. 18. PW16-Mukesh Kumar Soni deposed that he was posted as Judicial Magistrate, Nainwa on 05.10.2012. On that day Girraj had identified the earrings. In his cross-examination he deposed that Girraj had not told him that the said earrings had been stolen or that they should belonged to his brother Kajod. Girraj had also not said that the earrings belonged to him. He had only identified the earrings at his asking. 19. PW17-Murlidhar deposed that he was running a jewellery shop in Tonk. Purushottam had sold earrings to him for about Rs. 17000-18000/-. After 10-15 days police came to his shop alongwith the appellant and enquired from him whether he knew the appellant. He replied that he knew the appellant. Police further enquired from him as to whether appellant had sold the earrings to him. Then he had prepared new earrings and handed over to the police as he had already melted the earrings sold to him by the appellant. 20. PW18-Dr. Ashok Saxena deposed that on 10.09.2012 he had conducted the post mortem examination on the dead body of Kajod. He proved the post mortem report Ex. P30. A perusal of the Ex. P30 reveals that the dead body was in a decomposed condition. Maggots and adult flies were present at multiple places. 20. PW18-Dr. Ashok Saxena deposed that on 10.09.2012 he had conducted the post mortem examination on the dead body of Kajod. He proved the post mortem report Ex. P30. A perusal of the Ex. P30 reveals that the dead body was in a decomposed condition. Maggots and adult flies were present at multiple places. Foul smell was present. Skin and muscles were missing at many places and skeleton was exposed. Both eye balls were missing. Skin and muscles alongwith internal organs were absent due to the decomposition and might have been eaten by the animals and only partial skeleton was available. Right and left legs below knee were missing. There was fracture of larynx, trachea and hyoid bone. The Board of Doctors opined that the cause of death was asphyxia due to strangulation. 21. The police officials have deposed with regard to the investigation conducted by them. 22. PW19-Premchand Kudriya-Investigating Officer in his cross-examination deposed that no missing report had been lodged in the police station. 23. PW22-Tez Singh, who was Station House Officer, deposed in his cross-examination that documents like panchayatnama, handing over of dead body, memos regarding photographs, site plan and recovery of shoes, were prepared before the arrest of the appellant and were signed by the appellant. He also admitted that no separate memo was prepared with regard to the identification of the dead body by the complainant on the basis of shoes of the deceased. There was no missing report available on record. 24. We have perused the entire evidence and other documents available on record carefully. In a case resting on circumstantial evidence, prosecution is required to complete the chain of circumstances leading towards the guilt of the accused and negating his innocence. However, in the present case prosecution has failed to complete the chain of circumstances leading towards the guilt of the accused. Lot of missing links are there which fail to connect the chain of circumstances leading towards the guilt of the appellant. 25. Firstly, as per the complainant, deceased and appellant were seen last together taking liquor on 02.09.2012 at about 6/7:00 p.m. As per this witness he had lodged the missing report after 2/4 days. However, the said missing report is not available on record. Rather, PW-19 has stated that no such missing report was lodged in the Police Station. 25. Firstly, as per the complainant, deceased and appellant were seen last together taking liquor on 02.09.2012 at about 6/7:00 p.m. As per this witness he had lodged the missing report after 2/4 days. However, the said missing report is not available on record. Rather, PW-19 has stated that no such missing report was lodged in the Police Station. The said witness has deposed in his cross-examination that in the missing report he had stated that his brother was missing for the last 10/12 days. If that be so, then the version of the complainant that he had seen the appellant in the company of the deceased on 02.09.2012 stands falsified. 26. Secondly, complainant has stated that he had been told by the Rambilas and Mukesh Kumar shopkeepers that appellant and deceased were together till the evening of 02.09.2012. He has further stated that Rambilas had made a phone-call to the appellant to enquire the whereabouts of Kajod. However, Rambilas and Mukesh have not been examined as witnesses during trial to corroborate the version of the complainant. 27. Thirdly, as per the prosecution story the dead body was recovered at the instance of the appellant on 10.09.2012. Dead body was sent for post-mortem examination on 10.09.2012. However, Exhibit P-33 was prepared on 12.09.2012, wherein, appellant had made a statement under Section 27 of the Evidence Act, 1872, that he could disclose the field and place of the incident where he had murdered the deceased and had taken away his earrings. Since, as per the prosecution, appellant had already got the dead body recovered on 10.09.2012, there was no occasion for him to make a statement on 12.09.2012 to show the field and place of the incident to the police where he had murdered the deceased and taken away the gold earrings. 28. Fourthly, PW-15 Rajesh Kumar, photographer has deposed that shoes, watch, Kara and earrings were lying at the spot. 29. Fifthly, Satyanarayan who was owner of the fields from where the dead body was recovered or Sheoji Dhakar who was allegedly cultivating the fields were not examined during trial. As per the post-mortem report Exhibit P-30, the death had occurred about 7 to 10 days prior to the post-mortem examination. Thus, the dead body was lying in the fields from 7 to 10 days and was being eaten away by dogs. As per the post-mortem report Exhibit P-30, the death had occurred about 7 to 10 days prior to the post-mortem examination. Thus, the dead body was lying in the fields from 7 to 10 days and was being eaten away by dogs. The person who was cultivating the fields would have come about the presence of the dead body, on account of bad smell and on account of the fact that the same was being eaten away by the animals. However, the owner of the fields i.e., Satyanarayan and Sheoji who was cultivating the fields have not been examined during trial to establish the fact that the dead body had been recovered from their fields. 30. Sixthly, PW-17 Murlidhar has deposed that he had again prepared the earrings at the instance of the police which had been allegedly sold to him by the police. It is not understandable as to why the investigating agency had got the earnings prepared again from PW-17. This shows that serious padding has been done in this case to involve the appellant in this case. 31. Thus, in the present case the circumstances brought on record by the prosecution fail to complete the chain leading towards the guilt of the accused. Rather, we are of the opinion that the possibility that somebody else might have committed the crime, in the facts and circumstances of the case, cannot be ruled out. 32. Hence, appellant is liable to be acquitted of the charges by giving him benefit of doubt. Accordingly, appeal is allowed. Appellant is acquitted of the charges framed against him. 33. Consequently, impugned judgment/order dated 30.06.2014 passed by the trial court are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other case. 34. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Purushottam Son of Shri Mohan Lal Soni is directed to furnish a personal bond in the sum of Rs. 25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.