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2021 DIGILAW 127 (RAJ)

Man Singh Damor Aadiwasi v. State of Rajasthan

2021-01-19

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT : Sandeep Mehta, J. 1. The instant appeal has been preferred by appellant Man Singh under Section 383 Cr.P.C. being aggrieved of the impugned judgment dated 23.10.2013 passed by the learned Additional Sessions Judge, Banswara Camp Kushalgarh, in Sessions Case No. 34/2010 whereby, he was convicted for the offence under Section 302 IPC and sentenced to life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine further to undergo three months' simple imprisonment. 2. Brief facts relevant and essential for disposal of the instant appeal are noted herein below:- Shri Bhoorji R/o. Village Motapada submitted a written report (Ex. P/22) at the Police Station Kushalgarh, District Banswara on 19.09.2010 alleging inter alia that in the day time he, along with his daughter Champa (the deceased), aged about 15-16 years, had both gone to fields for collecting grass. One stack of grass was cut and stacked and thereafter he asked his daughter to go home and prepare food. Champa left the field with the bale of grass at about 5 o'clock in the evening. He saw Man Singh going ahead and Champa following him through the fields. After cutting grass, he (Bhoorji) picked up the other grass bale and reached home at about 6:45 p.m. and asked his wife about Champa, on which, she responded that Champa had not returned home. The informant recollected that Champa was lastly seen following Man Singh and thus, he approached Man Singh and asked him about his daughter. Man Singh replied that he had gone to the market and feigned ignorance about Champa. The informant made a search in the nearby fields. Prakash told the informant that Champa was lying in the field of Udai Singh. The informant accompanied with other villagers, reached there and saw that Champa was lying dead in the field with blood oozing from the back of her head. Her clothes were disheveled and the undergarment was lying nearby. The informant alleged that some unknown person had killed his daughter. On the basis of the report aforesaid, an FIR No.250/2010 came to be registered at the Police Station Kushalgarh for the offence under Section 302 IPC. The dead body of Champa was subjected to postmortem by a Medial Board constituted at the CHC, Chhota Dungara, District Banswara. The informant alleged that some unknown person had killed his daughter. On the basis of the report aforesaid, an FIR No.250/2010 came to be registered at the Police Station Kushalgarh for the offence under Section 302 IPC. The dead body of Champa was subjected to postmortem by a Medial Board constituted at the CHC, Chhota Dungara, District Banswara. The Board gave an opinion that numerous injuries were visible on the dead body of Champa and the cause of death was fracture of hyoid bone and trachea due to pressure on the neck. The organs of generation upon being examined were found to be healthy and no mark of injury were found thereupon. Scratches by nails were noticed on both the wrists. As the informant had alleged in the report that Man Singh was proceeding ahead of Champa, the finger of suspicion pointed towards him and he was arrested on 20.09.2010 vide Arrest Memo (Ex. P/24). It is pertinent to note here that no marks of injuries were noticed on the person of the accused when he was arrested. The Investigating Officer Shri Surendra Singh, SHO, PS Kushalgarh claims to have recorded information of the accused under Section 27 of the Evidence Act on 21.09.2010 at 11:00 a.m., in which, the accused allegedly divulged that on the fateful evening, he had tried to subject Champa to rape, on which, she resisted by raising the 'Danteda' (an equipment for grass cutting) in her hand. He snatched 'Danteda' and hit her on her neck. Thereafter, he pressed the neck of Champa and killed her. After the incident he threw the 'Datenda' in the fields. In furtherance of this information, the Investigating Officer claims to have recovered a 'Hansiya' vide recovery memo Ex. P/18 on 21.09.2010, from the field where the dead body was found. The 'Odhani' of the victim and the 'Danteda/Hansiya' allegedly recovered in furtherance of the information provided by the accused to the Investigating Officer both were forwarded to the FSL from where, a report admissible under Section 293 Cr.P.C. (Ex. P/26) was received, as per which, the 'Danteda' and Odhani were found stained with 'A' group human blood. After completion of investigation, a charge sheet was filed against the accused for the offence under Section 302 IPC in the court concerned. P/26) was received, as per which, the 'Danteda' and Odhani were found stained with 'A' group human blood. After completion of investigation, a charge sheet was filed against the accused for the offence under Section 302 IPC in the court concerned. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Banswara from where, the same was transferred to the Court of Additional Sessions Judge, Banswara Camp Kushalgarh for trial. 3. The trial court framed charge against the accused for the offence under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses and exhibited 28 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same and claimed to have falsely been implicated, but he did not lead any evidence in defence. 4. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and after appreciating the evidence available on record, the learned trial court proceeded to convict the appellant for the offence under Section 302 IPC and sentenced him to life imprisonment by the impugned judgment dated 23.10.2013, which is assailed in this appeal. 5. Mr. Pawan Bishnoi, associate to Mr. Rakesh Matoria, Amicus Curiae, vehemently and fervently urged that there is no plausible evidence on the record of the case so as to connect the appellant with the alleged crime. The trial court accepted the evidence of Bhoorji, the first informant, as being the witness of last seen, whereas, Bhoorji categorically admitted in his cross-examination that when his daughter Champa was going home carrying the grass bale, Man Singh was not to be seen. The informant then stated that Man Singh was going ahead and Champa was going behind him. He urged that by this narration, it is clear that the evidence of Bhoorji cannot be treated to be sufficient to accept it as a circumstance of last seen against the accused. 6. Regarding the recovery of 'Danteda', the contention of Mr. The informant then stated that Man Singh was going ahead and Champa was going behind him. He urged that by this narration, it is clear that the evidence of Bhoorji cannot be treated to be sufficient to accept it as a circumstance of last seen against the accused. 6. Regarding the recovery of 'Danteda', the contention of Mr. Bishnoi was that the recovery was fabricated and the prosecution did not lead appropriate evidence so as to prove that the weapon of offence allegedly recovered at the instance of the accused remained in self-same condition right from the date of seizure till the date the same was received at the FSL. He, thus, urged that the appellant deserves to be acquitted by giving him the benefit of doubt. 7. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that from the FIR (Ex. P/27) and testimony of Bhoorji, the first informant, it is manifest that the deceased Champa was seen going with Man Singh. This allegation, as per the learned Public Prosecutor, establishes the fact that the deceased was lastly seen in the company of the appellant. He further urged that the 'Danteda' being the weapon of offence was recovered on the basis of the information supplied by the appellant under Section 27 of the Evidence Act on the very second day of the incident. The weapon was found stained with some blood group as that of the deceased and thus, the accused was under an obligation to explain this gravely incriminating circumstance. However, other than a bald denial, the accused did not offer any explanation as to how he was aware about place where the blood-stained weapon of offence was secreted. He, thus, urged that the impugned judgment does not warrant any interference whatsoever. 8. We have given our thoughtful consideration to the submissions advanced at bar and carefully re-appreciated the evidence available on record. As is evident from the narration of facts made above, the case is based purely on circumstantial evidence, which comprises of two links: (i) the allegation that the accused-appellant was lastly seen in the company of the victim and (ii) that he got recovered the weapon of offence soon after the incident, which was stained with the same blood group as that of the deceased. 9. 9. We first proceed to analyze the evidence of the sole witness i.e. the first informant Bhoorji (P.W. 12), father of the victim Mst. Champa, who stated that the victim was lastly seen in the company of the accused. It was alleged by Bhoorji in the written report (Ex. P/22) that he saw his daughter Champa following Man Singh through the fields while proceeding towards their home and that she was not seen alive thereafter. In his statement on oath, Bhoorji tried to change the version and alleged that he saw Champa going with Man Singh through the fields. However, upon being cross-examined, the witness admitted that when his daughter started leaving with the grass bale, Man Singh was not present. He then altered his stance and stated that Man Singh was proceeding ahead and Champa was following him. Apparently, as per the highest observation of Bhoorji, Man Singh was going ahead and Champa was proceeding behind him. This fact cannot lead to a logical conclusion that the accused and Champa were seen in each other's company lastly before the girl was murdered. It is significant to note here that at the conclusion of the cross-examination, the witness admitted that a dispute took place between his family members and the family members of Man Singh, who gave them a sum of Rs. 70,000/- so that they could be allowed to live in the village. A sum of Rs. 80,000/- remained to be paid and if that amount had been paid, he would not have lodged the case. This admission of the witness completely discredits his testimonial worth as a witness of the incident. 10. The Investigating Officer Surendra Singh (P.W. 14) arrested the accused on 20.09.2010 and allegedly recovered the weapon of offence on 21.09.2010 vide Seizure Memo Ex. P/8, which was deposited with the Malkhana Incharge Laxman Singh (P.W. 13). 11. The Malkhana Incharge Laxman Singh (P.W. 13), admitted in his examination-in-chief that the Investigating Officer Surendra Singh gave him three packets on 20.09.2010, which he accepted and deposited in the Malkhana vide Entry No. 125 (Ex. P/23). One packed was handed over to him on 21.09.2010 and was deposited in the Malkhana on the same day. He further stated that the Investigating Officer forwarded two of these packets for being transmitted to the FSL with Constable Kalu Singh (P.W. 10). 12. P/23). One packed was handed over to him on 21.09.2010 and was deposited in the Malkhana on the same day. He further stated that the Investigating Officer forwarded two of these packets for being transmitted to the FSL with Constable Kalu Singh (P.W. 10). 12. On a perusal of the seizure memo of the 'Danteda/Hansiya' (Ex. P/8), it is clear that the Investigating Officer claims to have put cotton on its blood-stained part and then the same was allegedly packed in a cloth bag. On the contrary, as per the Entry No. 125 of the Malkhana Register, the 'Danteda', which was deposited, was not packed in a cloth bag. Furthermore, the 'Danteda' was recovered from an open field accessible to all and sundry. Thus, no reliance can be placed on the recovery of Danteda/Hansiya. 13. It is further relevant to mention here that the Medical Officer Dr. Dinesh Maheshwari (P.W. 1), who carried out postmortem on the dead body of Mst. Champa, took note of the fact that there were scratches caused by nails on the left and right wrists of the deceased. There also existed numerous other marks of struggle on the dead body. This observation of the Medical Officer indicates that the deceased must have put up a significant struggle, after which assailant over-powered and killed her and in this process injuries by nails were caused on her wrists. If at all the accused-appellant was the perpetrator of the offence, then he would definitely have received injuries in the struggle. Furthermore, his nails should have been collected so as to analyze them for presence of the blood of the deceased. However, the Investigating Officer made no efforts in this direction. 14. As a consequence of discussion made hereinabove, we are of the view that the prosecution has not been able to establish the circumstance of last seen against the appellant by cogent evidence. Furthermore, the recovery of 'Danteda/Hansiya' is also doubtful. 15. In view of the categoric findings referred to supra, we are of the view that the prosecution has failed to prove even a single incriminating circumstance against the appellant so as to sustain his conviction as recorded by the trial court. The impugned judgment does not stand to scrutiny. 16. Accordingly, the instant appeal deserves to be and is hereby allowed. The impugned judgment does not stand to scrutiny. 16. Accordingly, the instant appeal deserves to be and is hereby allowed. The impugned judgment dated 23.10.2013 passed by the learned Additional Sessions Judge, Banswara Camp Kushalgarh in Sessions Case No. 34/2010 is set aside. The appellant is acquitted from the charge under Section 302 IPC. He is in custody. He shall be released from jail forthwith, if not wanted in any other case. 17. However, keeping in view the provisions of Section 437A Cr.P.C., each of 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 appellants shall appear before the Supreme Court.