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2021 DIGILAW 713 (RAJ)

Ganesh Lal v. State of Rajasthan

2021-03-25

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide judgment dated 28.05.2016 passed by the learned Additional Sessions Judge No.3, Bhilwara in Sessions Case No.41/2015 (23/2010): Offence Sentences Fine Fine Default sentences Sec. 302 IPC Life Imprisonment Rs.1,000/- 1 Month?s Additional Simple Imprisonment 2. Being aggrieved of his conviction and sentence, the appellant has approached this Court by way of this appeal under Section 374(2) Cr.P.C. 3. Facts relevant and essential for disposal of the appeal are noted hereinbelow: 4. The dead body of one Ladudas Vaishnav who used to serve in the Ganesh Prajapat Hanumanji Temple, Krishi Upaj Mandi, Bhilwara, was found lying in an abandoned condition by one Pyarchand S/o Amraji working as a Guard in the Krishi Upaj Mandi, Bhilwara. Shri Pyarchand lodged a written report (Ex.P/24) at the Police Station Subhash Nagar, Bhilwara on 25.09.2009 alleging that some unknown person had hit Ladudas by a stone and killed him. On the basis of this report, an FIR No.306/2009 (Ex.P/25) came to be registered at Police Station Subhash Nagar, Bhilwara and investigation was commenced. The dead body of the victim Ladudas was subjected to postmortem at the Mahatma Gandhi Hospital, Bhilwara by Dr. Alok Mittal (PW.8) who noticed presence of six lacerated wounds and one contusion along with haematoma in tempo-parietal region which led to the death of Ladudas. Postmortem report (Ex.P/8) was issued by the medical jurist. During the course of investigation, the Investigating Officer Om Prakash Verma (PW.20) claims to have collected evidence suggesting involvement of the appellant Ganesh Lal in the murder which led to his arrest on 26.09.2009 vide arrest memo Ex.P./7. The Investigating Officer claims to have interrogated the appellant and acting on the informations provided to him by the accused under Section 27 of the Evidence Act (Ex.P/27 & Ex.P/28), a stone (Ex.P/13) used for hitting the deceased and a shirt (Ex.P/15) allegedly thrown away by the accused after the murder, were recovered from near the temple. A charge-sheet was submitted against the appellant for the offence under Section 302 IPC in the court concerned. 5. As the offence was triable by Court of Sessions, the case was committed to the Court of Sessions Judge, Bhilwara from where it was transferred to the Court of Addl. Sessions Judge No.3, Bhilwara for trial. A charge-sheet was submitted against the appellant for the offence under Section 302 IPC in the court concerned. 5. As the offence was triable by Court of Sessions, the case was committed to the Court of Sessions Judge, Bhilwara from where it was transferred to the Court of Addl. Sessions Judge No.3, Bhilwara for trial. The prosecution examined as many as 25 witnesses and exhibited 29 documents to prove its case. It may be stated here that Pyarchand, the first informant who was portrayed as a witness of last seen during investigation, expired and thus, his statement could not be recorded in the trial. Be that as it may, it is alleged that the stone (Ex.P/13) and the shirt (Ex.P/15) purportedly recovered at the instance of the accused and the blood smeared soil (Ex.P/2) and the bedding (Ex.P/3) recovered from the place where the dead body was found, were forwarded to the Forensic Science Laboratory, Udaipur from where a report (Ex.P/29) was received as per which, all these articles were found stained with 'B' group blood. After hearing arguments advanced by the learned Public Prosecutor and the defence counsel and after appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 6. Shri R.S. Gill, learned counsel representing the appellant urged that the only evidence against the appellant, on the basis whereof he has been convicted by the trial court, is in the form of the recoveries of the blood stained stone (Ex.P/13) and the blood stained shirt (Ex.P/15). However, as per Shri Gill, these recoveries were effected from a place which was open and accessible to all and sundry. He urged that the recoveries are totally fabricated and do not inspire confidence and hence, there is no evidence worth the name on the record of the case to connect the appellant with the crime. He further submits that the trial court at para No.30 of its judgment observed without any basis that the prosecution gave proof regarding the accused-appellant having been seen near the place of incident soon after the murder which constituted evidence of last seen. He further submits that the trial court at para No.30 of its judgment observed without any basis that the prosecution gave proof regarding the accused-appellant having been seen near the place of incident soon after the murder which constituted evidence of last seen. He urges that the learned trial court placed reliance on totally inadmissible evidence because the allegation pertaining to the appellant being seen near the Hanuman temple was recorded in the FIR (Ex.P/25) lodged by Pyarchand, which cannot be considered as a substantive piece of evidence, as Pyarchand expired in the meanwhile and was not examined as a witness. He urged that there is not an iota of evidence on the record of the case so as to connect the appellant with the alleged crime and thus, he deserves to be acquitted of the charges. 7. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel and contended that the prosecution has proved the incriminating circumstances of last seen and blood stained recoveries against the appellant and hence, the trial court was justified in convicting the appellant for the charge of murdering Ladudas Vaishnav. 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment, and minutely re-appreciated the evidence available on record. 9. Suffice it to say that the prosecution case is based entirely on circumstantial evidence. The FIR (Ex.P/25) was lodged by Pyarchand wherein, an allegation was levelled that he saw the accused Ganesh Lal coming out of the gate of the Hanumanji Temple and that in the morning, the dead body of Ladudas was seen lying near the temple. However, Pyarchand was admittedly not examined in evidence during the trial because he had passed away. Contents of the FIR (Ex.P/25) definitely do not constitute a substantive piece of evidence, as has been held by Hon'ble the Supreme Court of India in the case of Pandurang Chandrakant Mhatre vs. State of Maharashtra, (2009) 10 SCC 773 . 10. However, Pyarchand was admittedly not examined in evidence during the trial because he had passed away. Contents of the FIR (Ex.P/25) definitely do not constitute a substantive piece of evidence, as has been held by Hon'ble the Supreme Court of India in the case of Pandurang Chandrakant Mhatre vs. State of Maharashtra, (2009) 10 SCC 773 . 10. We are of the firm view that as no witness examined during trial gave evidence of last seen, the learned trial court has committed a grave error of law while holding at para No. 30 of the impugned judgment that, the prosecution led evidence to prove that the appellant was seen coming out from the gate of the temple after the murder. This conclusion is based on the contents of the FIR which cannot be read as the informant could not be examined at the trial. The only other piece of evidence which the prosecution relied upon to bring home of the accused was in form of the recoveries viz., a the blood stained stone (Ex.P/13) and the blood stained shirt (Ex.P/15) allegedly effected by the IO Om Prakash (PW.20) at the instance of the appellant herein. In this regard, the evidence of the IO needs to be referred to, which is reproduced hereinbelow:- 11. In cross-examination, the IO admitted that no time was mentioned on the information memos (Ex.P/27 & Ex.P/28) in furtherance whereof, the stone and the shirt were allegedly recovered. He further stated that all these articles were not in a sealed condition when the same were exhibited in the Court. He also admitted that there is no reference in the charge-sheet as to the motive for which, the appellant murdered the deceased Ladudas. At this stage, the Investigating Officer suo moto stated that during the interrogation, the accused alleged that he was forced to establish homosexual relationship with the deceased and for this reason, the incident took place. 12. From the evidence of the medical jurist Dr. Alok Mittal (PW.8), who proved the Postmortem Report (Ex.P/8), it is well established that the cause of death of the deceased was homicidal in nature. Lacerated wounds were found on his body which resulted in fracture of the skull bones and proved instantaneously fatal. Thus, the fact that Ladudas was murdered by mechanical violence is duly proved by the medical evidence. 13. Lacerated wounds were found on his body which resulted in fracture of the skull bones and proved instantaneously fatal. Thus, the fact that Ladudas was murdered by mechanical violence is duly proved by the medical evidence. 13. From a perusal of the statement of the Investigating Officer Om Prakash, (PW.20), it is clear that while deposing on oath, he did not specifically narrate before the Court as to what exactly was stated to him by the accused while divulging the informations recorded under Section 27 of the Evidence Act. This Court considered this aspect of appreciation of evidence in the case of Daau Ram v. State of Rajasthan : D.B. Criminal Appeal No.87/2019, decided on 27.05.2019, and held that a memorandum under Section 27 of the Evidence Act is not a substantive piece of evidence in itself and for proving the contents thereof, the actual words spoken by the accused have to be narrated by the officer recording information while deposing before the Court and in the event of failure to do so, the informations cannot be read in evidence. 14. That apart, we are duly satisfied that the Investigating Officer's statement regarding the procedure of recoveries is totally laconic and perfunctory. A perusal of the evidence of the Investigating Officer Om Prakash (PW.20), extracts whereof have been reproduced hereinabove, it is apparent that regarding the recoveries, he made a bald statement that a big stone used in the incident was recovered in furtherance of the information (Ex.P/27) given by Ganesh Lal under Section 27 of the Evidence Act, the dimensions whereof were 35 cm x 19 cm x 14 cm vide seizure memo Ex.P/13. Likewise, he also stated that the shirt worn by the accused at the time of the incident, which was stained with blood, was recovered and seized vide memo Ex.P/15. The Investigating Officer did not state as to when and from where, the recoveries were so effected. Thus, the evidence of recoveries do not inspire confidence and cannot be read in evidence against the accused. 15. Thus, we are of the firm opinion that the trial court committed grave error of law in placing reliance on the evidence of the IO regarding the informations provided by the accused (Ex.P/27 & Ex.P/28) in furtherance whereof, the recoveries were effected. 15. Thus, we are of the firm opinion that the trial court committed grave error of law in placing reliance on the evidence of the IO regarding the informations provided by the accused (Ex.P/27 & Ex.P/28) in furtherance whereof, the recoveries were effected. That apart, on going through the seizure memos Ex.P/13 & Ex.P/15, it is clear that the stone as well as the shirt were found lying just near the temple, which is an open place accessible to all and sundry. Thus, these recoveries do not inspire confidence. In addition thereto, for a moment, the evidence of the blood stained recoveries is to be believed for argument sake, this is the only circumstance which have been portrayed by prosecution so as to bring home the guilt of the accused. Blood stained recoveries individually cannot constitute a complete chain of circumstances mandatorily required to establish the charge of murder in a case based purely on circumstantial evidence. The factum of recoveries can only be used to corroborate substantive/other reliable links of circumstantial evidence which are sufficient to prove the guilt of an accused. Individually taken, the evidence of blood stained recoveries would not lead to a conclusive proof of guilt of the accused. In this regard, reference can be made to the following observations made by Hon'ble the Supreme Court of India in the case of Mustkeem vs. State of Rajasthan, (2011) AIR SC 2769:- "13.It is fully established that the prosecution case is based on circumstantial evidence. In this view of the matter, we have to see if the chain of circumstances was so complete so as to unerringly point the finger only at the Appellants as perpetrators of crime. Before delving into the legal analysis, however, we would like to examine the statements of P.W.8 and P.W.10 in brief. 14.As per the prosecution story, Appellants Mustkeem and Arun had met P.W.10 - Chittar a day before the occurrence, in whose house deceased Ram Pal Yadav, was residing as a tenant, for last 5 to 6 years and he deposed that Appellants Mustkeem and Arun had told him that, that day it would be the last visit of Ram Pal and he will not come to his house again. Similar is the evidence of P.W.9 - Lali Devi, wife of P.W.10. She has repeated the same version as had been deposed by P.W.10- Chittar. 15. Similar is the evidence of P.W.9 - Lali Devi, wife of P.W.10. She has repeated the same version as had been deposed by P.W.10- Chittar. 15. P.W.8 - Smt. Supyar deposed that Mustkeem, Arun and Nandu used to visit Ram Pal Yadav regularly as all of them were dealing in illicit liquor trade. On coming to know from Lali Devi that Arun, Mustkeem and Nandu were keen to eliminate Ram Pal Yadav, she had telephonically asked him to meet her at the earliest. When deceased Ram Pal Yadav met Smt. Supyar, she informed him about the intentions of the accused. She also told him that Arun and Mustkeem both had said that it would be the last visit of Ram Pal Yadav to her house as they were planning to eliminate him. 16.Thus, from an appraisal of the evidence of P.W.8, P.W.9 and P.W.10, the Trial Court and the Division Bench of the High Court ruled that prosecution has been able to establish that deceased Ram Pal Yadav and Appellants were all involved in illegal trade of liquor and a day prior to the date of incident, Arun and Mustkeem had expressed their intentions to eliminate Ram Pal to P.W.9 and P.W.10. 17.High Court while considering the Appellants' appeal found this factor as one of the incriminating circumstances to eventually hold the Appellants guilty for the aforesaid offence. 18. The other circumstance found against the Appellants by High Court was that, on the basis of the disclosure statements of the Appellants, weapons alleged to be used in the commission of offence and clothes stained with human blood were recovered. In its Judgment, the High Court has discussed in extenso the effect of Section 27 of the Indian Evidence Act (hereinafter shall be referred to as 'Act') and subsequent discovery of the material objects thereafter. 19. On the basis of the report of the serologist, it has come on record that traces of AB blood group were found on the pants and baniyan of the deceased. The prosecution has also averred that Sword and clothes stained with human blood group AB were also recovered at the instance of Appellants, from the places shown by them and known only to them and none others. The prosecution has also averred that Sword and clothes stained with human blood group AB were also recovered at the instance of Appellants, from the places shown by them and known only to them and none others. On account of aforesaid circumstances, the High Court was of the opinion that the chain of circumstances was complete and the completed chain of circumstances pointed the finger for commission of the said offence only by the Appellants. ... 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. 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. " 16. As a consequence, we are of the firm opinion that the prosecution has failed to lead requisite reliable evidence, so as to establish the guilt of the accused for the charge of murdering Ladudas Vaishnav. Consequently, there is no escape from the conclusion that the findings recorded by the trial court in the impugned judgment while holding the appellant guilty for the charge of murder of the deceased, are absolutely laconic, baseless and unsustainable. 17. Accordingly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 28.05.2016 passed by the learned Additional Sessions Judge, No.3, Bhilwara in Sessions Case No.41/2015 ( 23/2010) is hereby quashed and set aside. The appellant is acquitted of the charges. The appellant is in custody and shall be released from prison forthwith if not wanted in any other case. 18. The impugned judgment dated 28.05.2016 passed by the learned Additional Sessions Judge, No.3, Bhilwara in Sessions Case No.41/2015 ( 23/2010) is hereby quashed and set aside. The appellant is acquitted of the charges. The appellant is in custody and shall be released from prison forthwith if not wanted in any other case. 18. 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.