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2019 DIGILAW 2329 (RAJ)

Ramesh Chand v. State of Rajasthan

2019-08-29

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Vide this order above mentioned two appeals would be disposed of. 2. Ramesh Chand, Siyaram, Vijay Singh, Gajendra Singh and Jaggi @ Jagdish were sent for trial in FIR No. 136 dated 14.07.2006 registered at Police Station Samod, District Jaipur Rural under Section 302, 201 Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). 3. Prosecution story, in brief, is that on 14.07.2006 at about 6/7.00 a.m., Lalchand, brother of the complainant was going towards their well in the fields from his house. When he reached near Chomu Chandwaji road tan Jatawali, he saw the dead body of a person lying on the road. Motor-cycle bearing registration No. RJ-14-SH-9487 was also lying nearby. On receiving the said information from his brother Lalchand, complainant Kalyan reported the matter to the police and formal FIR was registered. 4. After completion of investigation and necessary formalities, challan was presented against accused Ramesh Chand, Siyaram, Vijay Singh, Gajendra Singh and Jaggi @ Jagdish. 5. In order to prove its case, prosecution examined thirty eight witnesses, during trial. Accused when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that they were innocent. Accused examined one witness in their defence. Accused Jagdish appeared in the witness-box as DW-1. 6. Trial court vide judgment/order dated 23.07.2013 ordered the conviction and sentence of accused Ramesh Chand under Section 302, 201 IPC and accused Siyaram, Vijay Singh, Gajendra Singh and Jaggi @ Jagdish were acquitted of the charges framed against them. Hence, accused Ramesh Chand has filed the appeal challenging his conviction and sentence as ordered by the trial court vide the impugned judgment/order and State has filed the appeal challenging the acquittal of accused Siyaram, Vijay Singh, Gajendra Singh and Jaggi @ Jagdish. 7. Learned counsel for accused Ramesh Chand has submitted that the prosecution had miserably failed to prove its case. Accused Ramesh Chand had no motive to commit the murder of the deceased Beersingh. There was no evidence on record to establish that accused Ramesh Chand and Beersingh were last seen together before the crime. Learned counsel has submitted that, during investigation, blood stained clothes of accused Ramesh Chand were allegedly recovered at his instance and one blood stained mat of a Maruti car was allegedly recovered at the instance of accused Ramesh Chand. There was no evidence on record to establish that accused Ramesh Chand and Beersingh were last seen together before the crime. Learned counsel has submitted that, during investigation, blood stained clothes of accused Ramesh Chand were allegedly recovered at his instance and one blood stained mat of a Maruti car was allegedly recovered at the instance of accused Ramesh Chand. As per the prosecution case, the blood group on the mat as well as the clothes of the accused Ramesh Chand matched with the blood group of the deceased. However, the said fact in itself was not sufficient to uphold the conviction of accused Ramesh Chand as there was no detailed serological comparison and millions of people could have the same blood group. In support of his arguments, learned counsel has placed reliance on the decision given by Hon'ble Supreme Court in Sonvir & Somvir Vs. State (NCT of Delhi) (2018) 8 Supreme Court Cases 24, wherein, it was held as under:- "26.3. Alleged recovery of bloodstained shirt 26.3.1. As per the prosecution, a bloodstained shirt was recovered at the instance of Sonvir @ Somvir (Appellant-Accused No. 2) from his room in the house of Teja Chaudhary, at the time of his arrest. The blood-stained shirt was sent for analysis to the FSL. As per the FSL report (Ex. PW-33/A), the shirt allegedly recovered from Sonvir @ Somvir (Appellant-Accused No. 2) was found to be stained with human blood of "B" group, which was the same "blood group" as that of the deceased. 26.3.2. In paragraph 20, the High Court held the recovery of the blood-stained shirt from Sonvir @ Somvir (Appellant-Accused No. 2) to be incriminating against him, since the blood samples taken from the bed-sheet at the scene of crime, were also found to be of the same blood group. 26.3.3. It is relevant to note that as per the FSL report (Ex. PW-33/A), both the bloodstained shirt allegedly recovered from Sonvir @ Somvir (Appellant-Accused No. 2) and the blood samples taken from the bedsheet at the scene of crime were found to be stained with human blood of "B" group. 26.3.4. 26.3.3. It is relevant to note that as per the FSL report (Ex. PW-33/A), both the bloodstained shirt allegedly recovered from Sonvir @ Somvir (Appellant-Accused No. 2) and the blood samples taken from the bedsheet at the scene of crime were found to be stained with human blood of "B" group. 26.3.4. The mere matching of the blood-group of the blood samples taken from the bed-sheet at the scene of crime, and the blood-stained shirt recovered from Sonvir @ Somvir (Appellant-Accused No. 2) cannot lead to the conclusion that the appellant had been involved in the commission of the crime. 26.3.5. On this issue, reliance can be placed on two decisions of this Court in Prakash v. State of Karnataka [ (2014) 12 SCC 133 ; paragraphs 41 and 45] and Debapriya Pal v. State of West Bengal [ (2017) 11 SCC 31 ; paragraph 8] wherein this Court while deciding cases based on circumstantial evidence had held that mere matching of the blood group cannot lead to the conclusion of the culpability of the accused, in the absence of a detailed serological comparison, since millions of people would have the same blood group. 26.3.6. In the present case, the prosecution has not proved that the room from where the blood-stained knife and blood-stained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir @ Somvir and/or was in the exclusive custody of the appellant. 26.3.7. Therefore, the recovery of the bloodstained shirt from Sonvir @ Somvir (Appellant-Accused No. 2) cannot be used as an incriminating piece of evidence." 8. Learned counsel has next placed reliance on the decision given by Hon'ble Supreme Court in Anvar P.V. Vs. P.K. Basheer and Others (2014) 10 Supreme Court Cases 473, wherein, it was held as under:- "The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act." 9. Learned counsel has next placed reliance on the decision given by Hon'ble Supreme Court in Anjan Kumar Sarma and Others Vs. State of Assam (2017) 14 Supreme Court Cases 359, wherein, it was held as under:- "19. The circumstance of last seen together cannot by itself form the basis of holding the Accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan this Court held that (SCC P. 719, Paras 12 & 15): 12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the Accused who committed the crime. There must he something more establishing connectivity between the Accused and the crime. Mere non-explanation on the part of the Appellant, in our considered opinion, by itself cannot lead to proof of guilt against the Appellant. 15. The theory of last seen-the Appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the Appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the Accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan. x--------x--------x------x---------x--------x--------x--------x 23. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the Accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan. x--------x--------x------x---------x--------x--------x--------x 23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under (SCC P. 776, Para 34): 34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the Accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the Accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the Accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. The time gap between the Accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot he said that the evidence of last seen together is to be rejected merely because the time gap between the Accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such Accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the Accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." 10. Learned state counsel has submitted that the prosecution had been successful in proving its case. In-fact, all the accused were liable to be convicted with regard to the charges framed against them. 11. Present case relates to murder of Beersingh. Case rests on circumstantial evidence. 12. Learned state counsel has submitted that the prosecution had been successful in proving its case. In-fact, all the accused were liable to be convicted with regard to the charges framed against them. 11. Present case relates to murder of Beersingh. Case rests on circumstantial evidence. 12. It has been held by the Hon'ble Supreme Court in 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." 13. PW-22 Dr. 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." 13. PW-22 Dr. Rajendra Singh Rajawat deposed that on 14.07.2006, he had conducted postmortem examination on the dead body of the deceased Beersingh. He proved the postmortem report Exhibit P-36. As per the postmortem examination report, cause of death of the deceased was coma brought about as a result of ante-mortem head injury caused by blunt and sharp object. 14. In the present case, PW-1 Sandeep, PW-3 Vikram, PW-4 Rajesh, PW-5 Pradeep Kumar, PW-7 Rakesh Agrawal, PW-9 Nirmala (wife of the deceased), PW-11 Ram Khiladi, PW-12 Daulatram, PW-13 Madanlal, PW-18 Bijju @ Vijay Singh and PW-24 Radhey Shyam, have not supported the prosecution case, during trial. 15. Prosecution has failed to establish any motive available with accused Ramesh Chand or other accused to have committed the murder of deceased Beersingh. In a case based on circumstantial evidence motive gains significance. However, in the present case, the circumstance of motive available with the accused to have committed the murder of deceased Beersingh has not been established. Prosecution has failed to examine any witness who had last seen the deceased in the company of the accused prior to his murder. 16. So far as other accused apart from accused Ramesh Chand are concerned, prosecution had brought on record their call details. In this regard, prosecution has examined PW-29 Mohindra Pal Singh and PW-30 Ravi Choudhary. The certificate required under Section 65-B of the Evidence Act, 1872, was not proved on record with regard to the call details of the said accused. Hence, the learned trial court rightly held that conviction of accused Siyaram, Vijay Singh, Gajendra Singh and Jaggi @ Jagdish could not be ordered merely on the basis of their call details without any incriminating material on record connecting them with the crime-in-question. 17. So far as accused Ramesh Chand is concerned, during investigation, his blood stained T-shirt and pant were recovered. One blood stained mat of a car was also recovered at the instance of accused Ramesh Chand from his house. 17. So far as accused Ramesh Chand is concerned, during investigation, his blood stained T-shirt and pant were recovered. One blood stained mat of a car was also recovered at the instance of accused Ramesh Chand from his house. As per the report of Forensic Science Laboratory Exhibit P-73, blood group on the T-shirt of accused Ramesh Chand and towel recovered from the spot and Shirt and Baniyan of the deceased and mat recovered at the instance of the appellant was of 'B'-group. 18. As per the prosecution witnesses PW-8 Bannalal and PW-10 Rajendra Singh they were not having any vehicle with them. As per the said witnesses, accused Ramesh Chand had reached the place where the dead body of Beersingh was lying. They had taken the Maruti car belonging to accused Ramesh Chand with a view to inform the family members of Beersingh regarding his death and when they had travelled about 5/6 kilometers, they found that there were blood stains in the Maruti car. Maruti car was inspected vide memo Exhibit P-7 prepared on 14.07.2006. So far as Exhibit P-7 is concerned, although, PW-8 Bannalal and PW-10 Rajendra Singh have proved the execution of Exhibit P-7, but independent witnesses PW-3 Vikram and PW-4 Rajesh have not supported the prosecution case in this regard. It is not understandable as to why there was any need for the police officials to have taken a private car to inform the family members of the deceased with regard to his murder because as per PW-38 Ravindra Pratap they had gone to the spot in a police vehicle. Thus, a police vehicle was available at the spot. Further, in case, blood stains had been found in the Maruti car on 14.07.2006 then there is no explanation as to why the vehicle was not taken in police possession on the same day, but was taken in possession on 16.07.2006 vide Exhibit P-28. Further as per the official witnesses, accused Ramesh Chand had reached the spot on 14.07.2006. If that be so then after blood stains were found in his car, he should have been arrested at the same time. However, accused Ramesh Chand was arrested on 15.07.2006 vide arrest memo Exhibit P-26. 19. Further as per the official witnesses, accused Ramesh Chand had reached the spot on 14.07.2006. If that be so then after blood stains were found in his car, he should have been arrested at the same time. However, accused Ramesh Chand was arrested on 15.07.2006 vide arrest memo Exhibit P-26. 19. PW-38 Ravindra Pratap in his cross-examination has deposed that he had not recorded the statement of Gurmeet Singh, owner of the house from where the blood stained clothes and blood stained mat were allegedly recovered at the instance of accused Ramesh Chand. Ramesh Chand was allegedly living on rent in the said house. Thus, the recovery of blood stained mat and blood stained clothes of the deceased as well as the blood stains found in the car which was allegedly in the possession of the accused Ramesh Chand are rendered doubtful and the possibility that the same were a result of padding by the investigating agency to strengthen its case cannot be ruled out. 20. It is a settled preposition of law that in a case resting on circumstantial evidence, prosecution is required to complete the chain of circumstance leading towards the guilt of the accused and negating his innocence. However, in the present case, prosecution has failed to complete the chain of circumstance leading to the inference that the accused had committed the crime-in-question. Rather, the possibility that somebody else might have committed the crime in the present case cannot be ruled out. 21. Hence, accused Ramesh Chand is also liable to be acquitted of the charges framed against him. 22. Accordingly, D.B. Criminal Appeal No. 545/2013 is allowed. Accused Ramesh Chand is acquitted of the charges framed against him and judgment/order dated 23.07.2013 passed by the trial court qua him are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other case. 23. Consequently, D.B. Criminal Leave To Appeal No. 5/2014 filed by the State is dismissed. 24. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Ramesh Chand S/o. Samundra Singh is directed to furnish a personal bond in the sum of Rs. 23. Consequently, D.B. Criminal Leave To Appeal No. 5/2014 filed by the State is dismissed. 24. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Ramesh Chand S/o. Samundra Singh 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 aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.