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2019 DIGILAW 2740 (RAJ)

Anand Kumar v. State of Rajasthan

2019-10-23

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The instant appeal under Section 374 (2) has been preferred by the appellant Anand Kumar being aggrieved of the judgment dated 15.06.2016 passed by the learned Additional Sessions Judge, Rajgarh, District Churu in Sessions Case No. 29/2011, whereby he has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo additional simple imprisonment of six months. 2. Brief facts relevant and essential for the disposal of the instant appeal are noted herein-below: Dharmveer (PW-1) lodged a written report (Ex.P/1) with the SHO, Police Station Rajgarh at the Police Station Rajgarh on 12.04.2011 at 11.05 a.m. alleging inter-alia that his younger brother Rajesh was in the company of Anand S/o Maidhan, the appellant herein, for the last 5 days. In the previous night i.e. on 11.04.2011 at about 09.30 p.m. Anand took Rajesh with him on the pretext that his gram crop had to be harvested. They went to the room of Anand and talked with each other for some time. The complainant returned to his house and went to sleep. In the morning, he got a call from Charan Singh, who informed him that Rajesh was lying dead near the road. Narsingh also told about the same fact. The complainant called the Sarpanch. He suspected that Anand had murdered his brother Rajesh and has absconded from his house. The dead body of his brother was lying on the edge of the road in front of Anand's house. 3. On the basis of the report aforesaid, an FIR No. 136/2011 (Ex.P/2) came to be registered at the Police Station Rajgarh for the offence under Section 302 IPC and the investigation was undertaken by Shri Rampratap (PW-6) the SHO, Police Station Rajgarh. The requisite formalities of investigation, viz. Preparation of site inspection plan, seizure memo of soil etc. were carried out. The dead body of Rajesh was subjected to postmortem by a medical board constituted at the Government Hospital, Rajgarh, which issued the postmortem report (Ex.P/12), as per which, no less than 16 incised wounds were noticed on the body of Rajesh. The requisite formalities of investigation, viz. Preparation of site inspection plan, seizure memo of soil etc. were carried out. The dead body of Rajesh was subjected to postmortem by a medical board constituted at the Government Hospital, Rajgarh, which issued the postmortem report (Ex.P/12), as per which, no less than 16 incised wounds were noticed on the body of Rajesh. The board opined that the cause of death of Rajesh was shock due to excessive bleeding caused by extensive antemortem injuries on the face and skull, which were sufficient to cause death in the ordinary course of nature. The accused, who had absconded from the village, was apprehended on 21.04.2011 vide arrest memo Ex.P/15. The Investigating Officer (PW-6) claims that on the basis of the information supplied by the accused under Section 27 of the Evidence Act (Ex.P/16), a Khukhari, allegedly stained with blood and said to have been used in the incident, was recovered vide seizure memo Ex.P/10. The recovered articles, viz. clothes of the deceased, the samples of soil and the Khukhari, were forwarded to the FSL for chemical and serological examination from where a FSL Report (Ex.P/17) was received. 4. Upon concluding investigation, the Investigating Officer proceeded to file a charge-sheet against the accused appellant for the offence under Section 302 IPC. As the offence was Sessions triable, the case was committed to the court of Additional Sessions Judge, Rajgarh for trial, where charge was framed against the accused for the above offence. The accused pleaded not guilty and claimed trial. The prosecution examined 7 witnesses and exhibited 19 documents to prove its case. Upon being examined under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to be innocent. After hearing and appreciating the arguments advanced by the prosecution and the defence counsel and after evaluating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 5. Mr. Bhanwar Singh Rathore, learned counsel representing the appellant, fervently contended that the entire prosecution case is false and fabricated. There are significant and material contradictions in the FIR vis-a-vis the sworn testimony of the first informant Dharmveer (PW-1). Hence, this appeal. 5. Mr. Bhanwar Singh Rathore, learned counsel representing the appellant, fervently contended that the entire prosecution case is false and fabricated. There are significant and material contradictions in the FIR vis-a-vis the sworn testimony of the first informant Dharmveer (PW-1). He vehemently urged that the fact that the so-called eye-witnesses Narsingh (PW-2) and Charan Singh (PW-3), had seen the accused beating the deceased in the night of the incident, has not been mentioned in the FIR. If at all, these witnesses had seen the accused assaulting the deceased as claimed in their testimony, then the natural human conduct required that these witnesses should have promptly shared this vital information with first informant Dharmveer and this fact would then have been incorporated in the FIR. This omission is stark and goes to the root of the matter looking to the admission made by the witnesses that they told this fact to the first informant Dharmveer (PW-1) well before the FIR came to be lodged. He further contended that the conduct of the so-called eye-witnesses Narsingh (PW-2) and Charan Singh (PW-3) in not making any attempt to save the deceased from the clutches of the accused and in failing to promptly inform his brother that the accused was assaulting Rajesh bring their testimony under a cloud of suspicion. He further urged that there is a grave discrepancy regarding the sequence of arrival of the witnesses at the scene of the occurrence. While Narsingh (PW-2) claims that he was the first person to reach there and Charan Singh came after him, on the other hand, Charan Singh (PW-3) gave out the sequence in reverse order. He, thus, urged that the evidence of Narsingh (PW-2) and Charan Singh (PW-3) is totally unreliable. He further contended that as per the Roznamcha report (Ex.P/18), the police got information of the incident at 07.50 a.m. ASI Jagdishchand, Constables Maheshchand and Surendra Kumar and driver Suresh proceeded to the place of incident. None of these witnesses were examined by the prosecution and thus, it is clearly a case of suppression of material evidence, which calls for drawing of adverse inference against the prosecution. None of these witnesses were examined by the prosecution and thus, it is clearly a case of suppression of material evidence, which calls for drawing of adverse inference against the prosecution. He pointed that this information was given by Jai Singh Poonia, Sarpanch, over telephone and as such, the evidence of Jai Singh was also vital to the case and his non-examination leads to the irrefutable inference that the prosecution is trying to hide the truth. He further submitted that the recovery of the Khukhari made at the instance of the accused appellant is totally false and fabricated. He drew the court's attention to the evidence of the Investigating Officer and the seizure memo (Ex.P/10), wherein there is no pertinent narration that the accused led the Investigating Officer to the place or got the Khukhari recovered. He, thus, urged that the circumstance of recovery was wrongly relied upon by the trial court so as to seek corroboration for the totally weak and flimsy circumstantial evidence led by the prosecution so as to link the accused appellant with the crime. On these grounds, he implored the court to accept the appeal, set aside the impugned judgment and acquit the accused of the charge. 6. Per contra, learned Public Prosecutor and Mr. S.K. Poonia, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by Mr. Rathore. They urged that there is no discrepancy or infirmity in the eye-witnesses account and the allegations as set out in the FIR (Ex.P/2). Dharmveer is not a very highly educated or qualified man. He is a rustic villager and was under the shock of having seen his brother's dead body with such a huge number of injuries and as such, it could not be expected from him that he would maintain the composure of a normal human being and in this background, the trivial omissions and contradictions in the FIR have to be ignored. They further urged that the accused absconded from the village and could be apprehended as late as on 21.04.2011. No explanation was offered for his abscondance. They further submitted that the evidence of the witnesses Narsingh (PW-2) and Charan Singh (PW-3) is natural and convincing and cannot be overlooked. They further urged that the accused absconded from the village and could be apprehended as late as on 21.04.2011. No explanation was offered for his abscondance. They further submitted that the evidence of the witnesses Narsingh (PW-2) and Charan Singh (PW-3) is natural and convincing and cannot be overlooked. Both the witnesses categorically alleged that they heard the noise of a quarrel, on which, they went towards Anand's house and saw Anand and Rajesh fighting with each other on the road. Anand was beating Rajesh. The witnesses reasonably inferred that the accused and the victim were fighting under the influence of liquor and thus, the witnesses did not pay much head to the incident. 7. In the morning, the witnesses were going to ease themselves when they saw the dead body of Rajesh lying on the road. They immediately called Dharmveer and told him about the sequence of events. Learned Public Prosecutor and the learned counsel for the complainant urged that both these witnesses could not be shaken in cross-examination. They had no animosity whatsoever with the accused and as such, they had no reason to falsely implicate him for the murder of Rajesh. On these grounds, learned Public Prosecutor and the learned counsel for the complainant implored the court to dismiss the appeal and affirm the impugned judgment. 8. In rejoinder, Mr. Bhanwar Singh Rathore urged that the prosecution has given no evidence to show that the accused had absconded from the place of incident. Merely because the accused was arrested 10 days later, no inference can be drawn that he absconded or was not available in the village. He further submitted that the witnesses Narsingh (PW-2) and Charan Singh (PW-3) are of the same caste as that of the deceased and as such, they sided with the complainant and gave false evidence to implicate the accused for this reason. 9. We have given our thoughtful consideration to the arguments advanced at bar and went through the material available on record. From the evidence as available on record, it is clear that the accused and the deceased had been involved in some sort of strife over the alleged relations of the accused with the cousin sister of the deceased some 5 years ago. However, the dispute was resolved and they were in a cordial relationship with each other when the incident took place. However, the dispute was resolved and they were in a cordial relationship with each other when the incident took place. As per the complainant's evidence, the accused and Rajesh were in each other's company for the last 5 days before Rajesh was murdered. Thus, there is no plausible evidence on record to show that the deceased and the accused were on inimical terms with each other, which could impel the accused to murder Rajesh. 10. The contention of Mr. Rathore regarding the recovery of weapon being inadmissible carries weight. It is undisputed that the accused was arrested after 9 days of the incident. Thus, he had ample opportunity to destroy the weapon of offence and by natural human behaviour, he could not be expected to keep the same secured for such long period so as to enable the police to recover it at a later stage. Furthermore, a perusal of the recovery memo Ex.P/10 reveals that it is not mentioned therein that the recovery was effected at the instance of the accused appellant. All that is narrated in the recovery memo is that the Investigating Officer proceeded to take into possession the Khukhari measuring 1 ft. 10 in. from the house of the accused on being pointed out by him. It is nowhere recorded in the recovery memo that the accused took the Investigating Officer to the house and got the Khukhari recovered. Additionally, while deposing in the court, the Investigating Officer made a bald assertion that he recorded the information of the accused under Section 27 of the Evidence Act, which was marked as Ex.P/16. Details of the information provided by the accused were not elaborated by the Investigating Officer while giving evidence. Thus, the information under Section 27 of the Evidence Act was not properly proved and becomes inadmissible in evidence. We draw support for this conclusion from the ratio of Daau Ram vs. State of Rajasthan, (2019) 3 RLW 1843 (Raj.). A significant fact is noticeable from the statement of Charan Singh (PW-3), who was associated in the proceedings of recovery of Khukhari. In his cross-examination, the witness admitted that the police had already taken out the Khukhari when he reached to participate in the proceedings as a motbir. This admission of the witness lends further confirmation to our conclusion that the recovery of Khukhri is not reliable. Thus, the recovery of Khukhari has to be discarded. In his cross-examination, the witness admitted that the police had already taken out the Khukhari when he reached to participate in the proceedings as a motbir. This admission of the witness lends further confirmation to our conclusion that the recovery of Khukhri is not reliable. Thus, the recovery of Khukhari has to be discarded. 11. Now we proceed to deal with the evidence of the three material witnesses, i.e. Dharmveer (PW-1), the first informant, Narsingh (PW-2) and Charan Singh (PW-3), being the witnesses who claimed to have lastly seen the deceased in the company of the accused appellant on the night before the incident. On going through the statement of Dharmveer, it is clear that he deposed that on 11.04.2011 in the night at about 09.30 p.m. Anand Prajapat came to their house and took Rajesh away with himself. Anand and Rajesh were seen consuming liquor at the house of Anand. The informant requested that Rajesh should be allowed to accompany him back home, to which Anand replied that they would first harvest the gram corp and then Rajesh would come back. The witness Dharmveer (PW-1) claimed that Rajesh and Anand had quarrelled with each other about 4-5 years ago on account of the fact that Rajesh was involved in an illicit relationship with Santosh, daughter of Ramchandra (uncle of Anand). However, the dispute was settled by the Panchayat. Dharmveer further claimed that Anand superficially accepted the compromise, but internally he continued to carry the grudge. With the intention of taking revenge, Anand took Rajesh with himself on the pretext of harvesting the gram crop. On the next morning at about 6-6.15 a.m. Charan Singh and Narsingh gave him the information that his brother Rajesh was lying dead in front of Anand's house. The informant went there and saw the dead body, which was covered with wounds. The witness then called Jai Singh, Sarpanch. Then he went to the police station and reported the matter. In cross-examination, the witness admitted that when he reached near the dead body after receiving the information from Charan Singh, a number of people had collected there. He went to the house of Jai Singh and requested him to inform the police. The witness then called Jai Singh, Sarpanch. Then he went to the police station and reported the matter. In cross-examination, the witness admitted that when he reached near the dead body after receiving the information from Charan Singh, a number of people had collected there. He went to the house of Jai Singh and requested him to inform the police. He reached the police station at about 09-09.30 a.m. The Circle Inspector was not present at the spot and reached at the place of incident about an hour and half after the report was lodged. His report was registered at 11.05 a.m. The witness admitted that the strife, which existed between Rajesh and Anand was not mentioned by him in the FIR. A suggestion was given to the witness that false case has been foisted merely because the dead body of Rajesh was lying outside the house of Anand. It is relevant to mention here that admittedly, the police officials had reached the place of incident on receiving the telephonic information from the Sarpanch Jai Singh and thus, the witness apparently lied when he stated that the police did not reach the spot. 12. The witnesses Narsingh and Charan Singh, siblings, gave almost identical statements. They stated that they heard noise of quarrelling in the night of 11.04.2011 between 10 to 11 o'clock. They went to the road and saw Rajesh and Anand fighting with each other. Anand was the aggressor and was beating Rajesh. Charan Singh uttered that both were under the influence of liquor and might be fighting with each other because of that. Thereafter, the brothers went back to their house. In the morning between 4 to 5 o'clock, Charan Singh went out to ease himself. Narsingh also followed him and both saw dead body of Rajesh lying there. Charan Singh called Dharmveer, brother of Rajesh and told him about the entire sequence of events. The witness also stated that Rajesh was involved in an illicit affair with cousin sister of Anand, who had killed Rajesh to take revenge. The most significant fact, which emerges from the evidence of these witnesses is that both emphatically stated that soon after coming across the dead body of Anand, they told Dharmveer about the entire sequence of events, which they saw on the night of 11.04.2011. The most significant fact, which emerges from the evidence of these witnesses is that both emphatically stated that soon after coming across the dead body of Anand, they told Dharmveer about the entire sequence of events, which they saw on the night of 11.04.2011. We are of the opinion that if at all there was an iota of truth in the assertion of Dharmveer (PW-1), Narsingh (PW-2) and Charan Singh (PW-3), then this was a material fact, which ought to have been incorporated in the FIR. The total absence of any such allegation in the FIR that the deceased was seen being assaulted by the accused in the night time goes to show that this is a sheer improvement and concoction introduced by the interested witnesses just to lend credence to the flimsy prosecution story. 13. On going through the site inspection plan (Ex.P/7), it is clear that the dead body of Rajesh was seen lying in an open space on the edge of the road going from Rajgarh to Pahadsar. House of the accused Anand is located inside the lane and thus, it cannot be concluded with any degree of certainty that the dead body was lying in front of the house of the accused. 14. From the evidence of the Medical Officer Dr. Ummed Singh (PW-4), it is clear that when postmortem was conducted on the body of Rajesh, as many as 16 injuries were noticed thereupon. The cause of death was opined to be shock due to grievous injuries on the head and face, which resulted into excessive bleeding. Thus, the fact that the death of Rajesh was homicidal is duly established. 15. Learned Public Prosecutor tried to lay stress on the fact that the accused absconded from the place of incident. However, from a perusal of the evidence of Rampratap (PW-6), the Investigating Officer, it is clear that he did not cast any such aspersion in his evidence that he made effort to arrest the accused and could not succeed. Thus, this allegation of the prosecution is not fortified. From the cross-examination of the Investigating Officer, it becomes apparent that when he reached the place of incident, the complainant orally narrated the details of the entire incident as it had happened. Thus, this allegation of the prosecution is not fortified. From the cross-examination of the Investigating Officer, it becomes apparent that when he reached the place of incident, the complainant orally narrated the details of the entire incident as it had happened. The Investigating Officer apprised to him that a Tehrir could be prepared for registering the FIR, but the complainant insisted that he would personally come to the police station for lodging the report. This deliberate avoidance to permit lodging of the report creates doubt that the complainant was intending to indulge into a consultation before lodging the report. However, despite all the deliberations which may have taken place, the important fact that witnesses Narsingh (PW-2) and Charan Singh (PW-3) saw the accused Anand quarrelling with the deceased Rajesh is missing from the report (Ex.P/1). No allegation regarding the previous enmity between Anand and Rajesh was set out in the report. The Investigating Officer, casually proved the information given by the accused under Section 27 of the Evidence Act without disclosing the details thereof. In this background, we have already discarded the recovery of Khukhari. 16. Mr. B.S. Rathore laid much stress on the fact that the police had been informed in the early morning. Three police officials, viz. ASI Jagdishchand and Constables Maheshchand and Surendra Kumar, went to the place of incident immediately on receiving the telephonic information from the Sarpanch Jai Singh. This Roznamcha entry has been proved as Ex.P/18. Manifestly, thus, the evidence collected by these three witnesses upon reaching the place of incident would include the earliest disclosure made by the prosecution witnesses regarding the manner in which the incident happened. None of these three witnesses was examined in evidence. This intentional withholding of material witnesses requires drawing of adverse inference against the prosecution and creates a significant doubt on the bonafides of the prosecution case. 17. None of these three witnesses was examined in evidence. This intentional withholding of material witnesses requires drawing of adverse inference against the prosecution and creates a significant doubt on the bonafides of the prosecution case. 17. In wake of the discussion made hereinabove and since we have concluded that the evidence of the first informant Dharmveer (PW-1) and the two witnesses of last seen Narsingh (PW-2) and Charan Singh (PW-3) does not inspire confidence and as the recovery of weapon made at the instance of the accused is totally unbelievable, there is no option for us, but to hold that the prosecution has miserably failed to prove even one of the so-called incriminating circumstances required to complete the chain of circumstantial evidence for establishing the guilt of the accused. As a consequence, it is our firm opinion that the trial court erred in facts while appreciating the evidence and concluding that the prosecution has proved the guilt of the accused beyond all manner of doubt. 18. Accordingly, the appeal deserves to be and is hereby allowed. The judgment dated 15.06.2016 passed by the learned Additional Sessions Judge, Rajgarh, District Churu in Sessions Case No. 29/2011 is quashed and set aside. Appellant Anand Kumar is acquitted of the charge. He is in custody. He shall be released forthwith, if not wanted in any other case. 19. 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.