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2020 DIGILAW 368 (RAJ)

Lohdachya v. State of Rajasthan

2020-02-12

NARENDRA SINGH DHADDHA, SABINA

body2020
JUDGMENT : 1. Appellant has filed this appeal challenging his conviction and sentence ordered by the trial court under Section 302, 201 Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.) vide judgment/order dated 11.08.2017. 2. Prosecution story as per the FIR No. 74 dated 22.02.2013 registered at Police Station Chaksu, District Jaipur Rural under Section 302, 201 I.P.C., in brief, is that on 20.02.2013, Gokul younger brother of complainant Motilal, had left the house at about 6.00 p.m. However, he had failed to return home on 21.02.2013 upto 7/8 O' Clock. At mid night, Motilal came to know from Ramesh that dead body of Gokul was lying in the well belonging to Girraj Meena. The dead body was taken out and he found that the same was of his brother Gokul. Somebody after committing the murder of Gokul had thrown the dead body in the well. Police took the dead body to the hospital. Some unknown person had murdered Gokul and complainant prayed that action be taken. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charges were framed against the appellant under Section 302, 201 I.P.C. by the trial court. 5. Appellant did not plead guilty to the charges framed against him and claimed trial. 6. In order to prove its case, during trial, prosecution examined nineteen witnesses. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence prayed that he was innocent. 7. Appellant had examined two witnesses in his defence. 8. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. As per the FIR, it was the case of the complainant that some unknown person had committed the murder of his brother. However, PW-15 Vimla, wife of the deceased got recorded her statement on the day of the lodging of the FIR that she had been told by the appellant on phone that he had murdered her husband. If that be so, the fact that appellant had told the wife of the deceased that he had committed the murder of Gokul, should have been reflected in the FIR which was also lodged on 22.02.2013. During investigation, one stone was allegedly recovered at the instance of the appellant, whereas, deceased has suffered incised wound on his head. If that be so, the fact that appellant had told the wife of the deceased that he had committed the murder of Gokul, should have been reflected in the FIR which was also lodged on 22.02.2013. During investigation, one stone was allegedly recovered at the instance of the appellant, whereas, deceased has suffered incised wound on his head. Witnesses projected to have last seen the deceased in the company of the appellant had not supported the prosecution case, during trial. 9. Learned state counsel has opposed the appeal and has submitted that from the call details proved on record, it was evident that appellant had made a phone-call to the wife of the deceased. Thus, the version of PW-15 Vimla that appellant had told her that he had committed murder of the deceased was duly corroborated by call details available on record. 10. Present case relates to murder of Gokul. Case rests on circumstantial evidence. 11. It has been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. : AIR 1990 SC 79 ), as under:- "10. ........ This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra)." 12. It has also 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. (See Gambhir v. State of Maharashtra)." 12. It has also 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. In the present case, during trial, motive has been set up by the complainant while appearing in the witness-box as PW-2 Motilal that appellant was having relations with Vimla, wife of the deceased. Due to this reason, murder of his brother had been committed. In the present case, during trial, motive has been set up by the complainant while appearing in the witness-box as PW-2 Motilal that appellant was having relations with Vimla, wife of the deceased. Due to this reason, murder of his brother had been committed. However, the said allegation is not reflected in the FIR. Rather as per the FIR, it was the case of the complainant that some unknown person had committed the murder of his brother. Thus, the motive put forth by the prosecution, during trial, is rendered doubtful. 14. Prosecution has examined PW-8 Bhagwan Sahai Sharma and PW-9 Ramvilas to prove the circumstance of last seen of the deceased in the company of the appellant. So far as PW-9 Ramvilas is concerned, he has not supported the prosecution case, during trial. PW-8 Bhagwan Sahai Sharma deposed that on 20.02.2013 deceased had come to his shop and had purchased medicine for 'Headache'. At that time Gokul was standing at some distance. The witness then said that the appellant had left towards Loharcha Dehlale side but he was not sure. This witness had not categorically deposed that appellant and deceased had left together towards any particular direction. Hence, statement of PW-8 fails to establish the circumstance of last seen of the deceased in the company of the appellant before the incident. 15. The next material witness that requires to be considered is PW-15 Vimla, wife of the deceased. She has deposed that her husband Gokul was doing labour work at a bricklin. She also did labour work with him. Appellant was also residing nearby and was a tractor driver. Appellant used to load earth for the bricklin. There had never been any dispute between her and her husband in connection with appellant. Whenever, there used to a dispute between her and her husband, appellant used to talk to her on phone. She was having a mobile-phone and appellant was also having a mobile-phone. Appellant has committed the murder of her husband. On the day of incident, she had slept after taking meals and she received a phone-call from the appellant telling her that Gokul was lying under the influence of liquor. On the next day, appellant told her that Gokul would never come home as he had murdered him. Then, she told elder brother of her husband that her husband had left for some unknown place. On the next day, appellant told her that Gokul would never come home as he had murdered him. Then, she told elder brother of her husband that her husband had left for some unknown place. In this regard, prosecution has placed on record call details of the mobile-phones of the deceased as well as the appellant and PW-15. 16. A perusal of the call details reveal that the appellant had made a phone-call to PW-15 Vimla on 21.02.2013 at about 10.30 p.m. Call details of the mobile-phone number of the deceased as well as the appellant reveals that there had been no contact between the appellant and the deceased on mobile-phone on 20.02.2013. 17. Thus, in case, PW-15 Vimla had been told by the appellant on 21.02.2013 at about 10.30 p.m. that he had murdered Gokul, it is not understandable as to why the said fact was not incorporated in the FIR which was lodged on 22.02.2013 by the elder brother of the deceased. In her examination-in-chief itself PW-15 has stated that after appellant had told her that he had murdered her husband, she had talked to the elder brother of her husband that her husband had gone to some unknown place. In normal circumstances, if appellant had actually told PW-15 that he had murdered Gokul, she should have told elder brother of her husband that she had been told by the appellant that he had murdered her husband instead of telling him that her husband had left for some unknown place. Since, the version put forth by PW-15 does not form part of the FIR, the statement of PW-15 is rendered doubtful with regard to the involvement of the appellant in the crime. 18. The other witnesses examined during trial are the police officials who had deposed with regard to the investigation conducted by them and the doctor who has proved the postmortem examination report Exhibit-P. 17 of the deceased. As per the postmortem examination report, deceased had suffered incised wound on his head, whereas, during investigation a stone has been recovered at the instance of the appellant. 19. It is a settled proposition of law that in a case resting on circumstantial evidence, prosecution is required to complete the chain of circumstances leading towards the hypothesis of only guilt of the accused and negating his innocence. 20. 19. It is a settled proposition of law that in a case resting on circumstantial evidence, prosecution is required to complete the chain of circumstances leading towards the hypothesis of only guilt of the accused and negating his innocence. 20. However, in the present case, prosecution has failed to complete the chain of circumstances leading towards guilt of the appellant. Rather, in the present case, the possibility that somebody else might have committed the crime cannot be ruled out. 21. Hence, we are of the considered opinion that the appellant is liable to be acquitted of the charges framed against him by giving him benefit of doubt. 22. Accordingly, appeal is allowed. Impugned Judgment/order dated 11.08.2017 passed by the Trial Court are set aside. Appellant is acquitted of the charges framed against him. Appellant who is in custody, be set at liberty forthwith, if not required in any other case. 23. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant-Lohdachya @ Bhagirath @ Chotu S/o Jagdish Meena 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.