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2019 DIGILAW 543 (RAJ)

BHERU LAL v. STATE

2019-02-15

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT VINIT KUMAR MATHUR, J. 1. The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 04.12.2014 passed by the learned Sessions Judge, Chittorgarh in Sessions Case No.60/2011 whereby the appellant has been convicted and sentenced as under:- Offence Sentence Fine In Default 302 IPC Life imprisonment 2500/- 01 year simple imprisonment 394 IPC Seven years R.I. 2500/- 01 year simple imprisonment 2. Brief facts necessary to be noted in narrow compass are that a written report was filed by Madhav Lal (PW7) stating that second marriage of his sister Kamla was solemnized with Badri Lal. Kamla had a son and a daughter. Badri Lal was already married to one lady namely Smt. Sunder Bai and litigation was pending between them in the court. The matter which was pending in the court was compromised by Badri Lal and ultimately, Badri Lal started living with Smt. Sunder Bai. His sister Kamla was residing separately. She informed him that Badri Lal and Sunder Bai used to often fight with her on which he consoled her that he would talk to Badri lal and Sunder Bai. On 25.10.2010, his sister attended a community function and went back by bus in the afternoon at around 12:30. On 26.10.2010, some school children informed that dead body of a lady was lying in the 'Chhapar' of Ganeshpura. 3. On getting this information, he along with Jinendra Kothari, Ratan Jat, Chatarbhuj Jat, Jogendra Jat and few other persons reached the spot and saw that dead body was of his sister Kamla. They found that her both legs from below knees were chopped off and there was a sharp cut on her neck. He noticed silver article anklet (Kadiya), Silver Kandora, golden nose pin, Ramnami necklace and golden earrings were missing from the body of his sister. He apprehended that some known person with intention to rob gold and silver articles might have murdered his sister. 4. On this complaint, a formal F.I.R. No.222/2010 was registered at Police Station Rashmi District Chittorgarh for the offences under Sections 302 & 394 of I.P.C. against the accused-appellant. The accused-appellant was arrested on 27.10.2010 vide arrest memo Ex.P/1. The investigation officer during the course of investigation effected recoveries of weapon of offence, ornaments and bloodstained clothes of the accused-appellants as well as the deceased. 5. The accused-appellant was arrested on 27.10.2010 vide arrest memo Ex.P/1. The investigation officer during the course of investigation effected recoveries of weapon of offence, ornaments and bloodstained clothes of the accused-appellants as well as the deceased. 5. After conclusion of investigation, the police filed a chargesheet against the accused-appellant for the offences under Sections 302 & 394 of I.P.C. 6. Learned trial court framed, read over and explained the charges for the offences under Sections 302 & 394 IPC to the accused appellant who pleaded not guilty and sought trial. During the trial, the prosecution examined as many as 40 witnesses and Ex.P/1 to Ex.P/60 documents were exhibited. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was falsely implicated and he was innocent. 7. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant for the offences under sections 302 & 394 IPC vide judgment dated 04.12.2014. Hence this appeal. 8. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor. 9. Learned counsel for the accused-appellant submits that the learned trial court itself discarded the evidence of last seen and only on the basis of call details, the accused appellant was arrested. The conversation between the accused appellant and the deceased based on the call details too has been disbelieved by the learned trial court. He further argues that the learned trial court has convicted the appellant only on the basis of recovery of bloodstained clothes, silver and gold articles. He further argues that recovery of gold and silver articles is of no consequence as the same were neither exhibited nor produced before learned trial court. Even in the statement of PW3 Badri Lal neither he has deposed anything with regard to identification of these articles nor has stated anything with respect to the recovery of the same. The learned counsel, therefore, submits that merely on the basis of recovery of bloodstained clothes, conviction of the appellant cannot be sustained. He, therefore, prays that the appellant may be acquitted of the charges leveled against him while setting aside the judgment impugned dated 04.12.2014. 10. The learned counsel, therefore, submits that merely on the basis of recovery of bloodstained clothes, conviction of the appellant cannot be sustained. He, therefore, prays that the appellant may be acquitted of the charges leveled against him while setting aside the judgment impugned dated 04.12.2014. 10. Per contra, learned Public Prosecutor fervently supported the judgment dated 04.12.2014 passed by the learned trial court and submitted that the prosecution has been able to prove the offences alleged in the present case against the accused appellant beyond all shadow of doubt on the basis of the testimony of the material prosecution witnesses and that of the investigation officer. He further submits that recovery of the silver and gold ornaments made from the accused appellant on the basis of information given by him to the investigating officer under section 27 of the Evidence Act (Ex.P/51) in the presence of PW40 Ramakant Upadhyay clearly connects the present appellant with the commission of the crime in question. Recovery of weapon of offence i.e. axe (Ex.P/50) made on the basis of information supplied by the accused appellant under section 27 of the Evidence Act too clearly establishes the involvement of the present appellant in the commission of the offences alleged. He further submits that in postmortem report (Ex.P/44) cause of death is shown to be "haemorrhagic shock" due to multiple injuries on the body of the deceased which corroborates the testimony of the prosecution witnesses. FSL report (Ex.P/56) wherein bloodstained pant (trouser) and shirt of the accused appellant having blood group 'B' matching with the bloodstained clothes of the deceased sent for examination complete the chain of circumstances which indicates that it was none other than the appellant who was involved in the commission of offences alleged in the present case, therefore, he submits that no interference is warranted by this Hon'ble Court in the judgment impugned dated 04.12.2014 passed by the trial court. 11. 11. Having considered the submissions made at the bar and going through the record of the learned trial court as well as judgment dated 04.12.2014 impugned herein, we find that the learned trial court after examining the entire evidence on record has disbelieved the testimony of PW4 Madan lal and PW31 Sanjay who are witnesses of circumstances of last seen together as in their testimony they have stated that they saw the accused appellant Bheru Lal going on the motorcycle with a female pillion rider but they could not recognize her as her face was covered. 12. The learned trial court has also discarded the evidence of conversation between the deceased and the accused appellant soon before the incident on the basis of the call details, therefore, the prosecution is left with only following pieces of circumstantial evidence so as to connect the appellant with the crime. (i) Recovery of ornaments (silver and gold). (ii) Recovery of bloodstained clothes of the accused-appellant. (iii) FSL report showing presence of blood of 'B' group on the clothes of accused-appellant. 13. The recovery of ornaments on the basis of Ex.P/51 was made by the police in the presence of PW40 Ramakant Upadhyay who stated that Badri Lal was called to identify the ornaments who identified the same to be ornaments of his wife deceased Kamla. We also note that details of the ornaments having been deposited and given back were mentioned in the Malkhana Register. We also note that the ornaments were handed over to Badri Lal on 06.09.2011 in pursuance of the order passed by the trial court on 05.09.2011. The same were received by him. We find that the ornaments were not produced, exhibited and identified before the trial court during the evidence of Badri Lal, the sole identifying witness of the ornaments. No question was put to Badri Lal in his evidence with respect to the identification of the ornaments recovered. Therefore, merely recovery of the ornaments by the investigating agency is not sufficient unless the same are produced before the trial court and identified by the prosecution witnesses to show that these very ornaments were worn by the deceased at the time of the incident. Therefore, merely recovery of the ornaments by the investigating agency is not sufficient unless the same are produced before the trial court and identified by the prosecution witnesses to show that these very ornaments were worn by the deceased at the time of the incident. The learned trial court should have taken proper care to get the ornaments exhibited and identified in the Court failing which recovery becomes worthless and the same cannot be used as a material piece of evidence. Hence, we are of the view that recovery of the ornaments (gold and silver) is not worth reliance and credence in the present case, therefore, the same is required to be discarded. The learned trial court thus fell in error in using the circumstance of recovery of ornaments as an incriminating circumstance against the accused-appellant in the present case. 14. Thus, the solitary piece of evidence on the basis of which conviction in the present case can be sustained or not is recovery of bloodstained clothes of the accused appellant. We find that recovery of bloodstained clothes (Ex.P/19) and the FSL report (Ex.P/56) wherein blood of group 'B' is present on the clothes of the accused appellant matching with the blood found on the bloodstained clothes of the accused appellant were taken into consideration for convicting the accused appellant in the present case. In our opinion, the presence of blood group 'B' on the Pant (Trouser) and Shirt of the accused-appellant in itself is not sufficient to establish guilt of the accused appellant unless the same is connected by the substantive piece of evidence in the present case. 15. Our view is supported by the judgment of Hon'ble Supreme Court in the case of Mustkeem V/s State of Rajasthan reported in, (2011) AIR SC 2769 wherein the Hon'ble Supreme Court has held as under:- "23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. 25. It is too well settled in law that where the case rests squarely on circumstantial evidence 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. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which has been well settled by law by this Court. 26. In a most celebrated case of this Court Sharad Birdhichand Sarda v. State of Maharashtra reported in, (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 27. 27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 16. Our view further gets fortified from the observations made by the Hon'ble in the case of Navaneethakrishnan Vs. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018 which reads as under, "23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove." 17. Therefore, in our view, the learned trial court was not correct in convicting the appellant on the basis of recovery of bloodstained clothes of the accused appellant on the ground that bloodstains found on the clothes worn by the accused appellant were matching with the blood group of the deceased. 18. In view of the discussion made herein above, the instant appeal is allowed and the judgment dated 04.12.2014 passed by learned Additional Sessions Judge, Chittorgarh is quashed and set. The accused appellant is acquitted from the charges of offence under sections 302 and 394 IPC. He shall be released from the prison forthwith, if not wanted in any other case. The record be returned forthwith. 19. However, keeping in view the provisions of Section 437-A CR.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs. 15,000/- 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.