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2022 DIGILAW 1195 (RAJ)

Mani Lal v. State Of Rajasthan

2022-04-13

RAMESHWAR VYAS, SANDEEP MEHTA

body2022
JUDGMENT Rameshwar Vyas, J. - The instant criminal appeal has been preferred under proviso to Section 372 of the Code of Criminal Procedure, 1973 by complainant Mani Lal, father of the deceased Vijay, against the Judgment and Order dated 22.03.2021 passed by the Additional Sessions Judge, Banswara in Sessions Case No. 27/2018 (State of Rajasthan Vs. Raju & anr.), whereby the accused-respondents Raju and Rekha were acquitted of the offences under Sections 302 & 201 of I.P.C. and accused-respondent Raju from offence under Section 4/25 of the Arms Act. 2. Heard learned counsel for the parties on admission and perused the record of the case. 3. Learned counsel for the appellant has contended that this case is based on the following circumstantial evidence :- A. The deceased Vijay was having illicit relations with Smt. Rekha, on account of which Raju, husband of Smt. Rekha, was annoyed with Vijay. This was the motive behind committing murder of Vijay, who was son of the complainant Manilal, appellant herein. B. There is evidence on record to suggest that deceased Vijay had gone with Smt. Rekha on 07.12.2017. In this regard, prosecution has produced daughters of the complainant viz. P.W. 8 - Rakhi and P.W. 12 - Raveena, who proved the last seen evidence. C. There is recovery of knife and other articles from the possession of the accused-respondents which connects them with the alleged offence. 4. As per first information report lodged by the father of the deceased, appellant herein on 18.12.2017, the deceased left the house on 02.12.2017 and did not return back. The information regarding lying of a dead body was received through telephone on 18.12.2017, upon which, Rakhi and Raveena, daughters of the complainant, went at the site and identified the dead body to be of their brother. Thus, the FIR was lodged only after recovery of the dead body of the deceased Vijay on 18.12.2017 and before that, no missing report was made to the police by anybody. In the FIR, it is not mentioned that the complainant was informed by his daughters regarding the fact that deceased left the house with any particular person. Thus, it is clear that before recovery of the dead body of deceased Vijay, P.W. 8 Rakhi and P.W. 12 Raveena did not apprise this material fact to their father that Vijay had gone with Rekha and her husband. Thus, it is clear that before recovery of the dead body of deceased Vijay, P.W. 8 Rakhi and P.W. 12 Raveena did not apprise this material fact to their father that Vijay had gone with Rekha and her husband. In the above circumstances, the disclosure made by Rakhi and Raveena for the first time during their sworn testimony before the trial court to the effect that on 07.12.2017, Rekha came to their house and on her call, deceased went with her, is not trustworthy. In the police statement of Rakhi (Ex.D/2) also, this fact has not been narrated. There is contradiction regarding the date when deceased left the house. As per statement of P.W. 8 and P.W. 12, deceased left the house on 07.12.2017. On the contrary, as per F.I.R., the deceased left the house on 02.12.2017. There is no other evidence on record to suggest that the deceased was last seen with the accused, the respondents herein, anytime soon before his death. Considering the statements of P.W. 6 Manilal, P.W. 8 Rakhi & P.W. 12 Raveena, we are satisfied that the last seen evidence produced by the prosecution is totally unworthy and was rightly discarded by the trial court. The evidence of the sisters of the deceased i.e. P.W. 8 and P.W. 12 is totally unreliable. Only on account of alleged illicit relations between the deceased Vijay and accused Rekha, the accused-respondents cannot be convicted on the basis of mere suspicion. Suspicion, howsoever, cannot take place of strong evidence. Proper proof requires to bring home the charges. 5. Regarding conviction of the accused on the basis of recovery, as per prosecution story, one Saree was recovered from the possession of accused Rekha vide Ex.P/4, which was sealed in Packet 'C'. The same was sent for examination to the FSL. As per the F.S.L. Report (Ex.P/48), human blood of 'A' group was found on the saree. However, both the panch witnesses associated with the recoveries viz. P.W. 2 - Hanif Khan and P.W. 11 Aabid Ahmed have not supported the alleged recovery and turned hostile. Similarly, a knife was alleged to be recovered from the possession of the accused Raju vide Ex.P/5. However, one of the recovery witnesses, namely, Mangilal (P.W. 3) has turned hostile, whereas, another witness Hemendra Singh (P.W. 15) is a Police Constable and subordinate of the recovery officer. Similarly, a knife was alleged to be recovered from the possession of the accused Raju vide Ex.P/5. However, one of the recovery witnesses, namely, Mangilal (P.W. 3) has turned hostile, whereas, another witness Hemendra Singh (P.W. 15) is a Police Constable and subordinate of the recovery officer. No reliance can be placed on such type of recovery. The knife was sealed in Packet 'D' and was sent for examination to the FSL. As per the F.S.L. Report (Ex.P/48), human blood of 'A' group was found on the knife. In absence of any evidence regarding blood group of the deceased, the so-called recovery, which has not been corroborated by any independent witness, cannot be made the basis for conviction of the accused in absence of any substantial evidence to prove their guilt beyond all manner of doubt. 6. Considering the fact that the prosecution has failed to prove the last seen evidence, the accused cannot be convicted on the basis of mere recoveries, which too were not proved by unimpeachable evidence. The prosecution also failed to prove that blood group of the deceased was A+ve. Hence, the F.S.L. Report does not help the prosecution case. The trial court has rightly acquitted the accused-respondents from the offences alleged in the present case. We are in full agreement with the conclusions arrived at by the trial court in acquitting the accused respondents for the offences charged against them by the impugned Judgment dated 22.03.2021, which is unimpeachable. 7. Resultantly, the criminal appeal is not fit for admission and is dismissed in limine. 8. The record of the trial court be sent back forthwith.