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2022 DIGILAW 2537 (RAJ)

Indrasan Devi v. State, Through P. P.

2022-09-29

FARJAND ALI, VIJAY BISHNOI

body2022
JUDGMENT : 1. The instant appeal has been filed under Section 372 of Cr.P.C. against the judgment of acquittal dated 16.01.2020 passed by learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No. 08/2017 whereby the accused-respondents were acquitted for the offences under Sections 302 and 201 read with Section 34 of I.P.C. 2. Briefly stated, the facts of the case are that the dismembered body of the deceased was found on the railway track around 1.5 kms away from Rajpura. A Marg report No. 01/17 (Exhibit P-1) came to be registered wherein an enquiry regarding cause of death was made by the police under Section 174 of Cr.P.C and the body was sent for Post-Mortem. Jaikishan, the brother of the deceased, submitted a written report wherein it was stated that when the deceased was sleeping at night, he received multiple calls. At around 11 p.m., the deceased told his wife that he would be back in a while and left home. Subsequent to this, his dead body was found at the railway track. An F.I.R. (Exhibit P-14) came to be registered and investigation commenced in the matter. During investigation, Rameshwar Lal and Pooja were found to have allegedly committed the crime of murder of the deceased and they were made accused. Both the accused were charge-sheeted for the offences under Sections 302 and 201 r/w 34 of IPC. As the offences were triable by Court of Sessions, the case was committed to Additional District & Sessions Judge, Suratgarh on 27.03.2017 and the trial was set into motion. 3. As many as 17 witnesses have been examined in the trial and 46 documents have been tendered into evidence by the prosecution. Thereafter, when the accused were questioned under Section 313 of Cr.P.C., they expressed their wish to present evidence in their defence but no evidence was produced to this effect. Subsequently, after hearing learned counsel for the accused and the public prosecutor and examining the testimonies of the witnesses and other documentary evidence produced before the court in detail, the learned trial court acquitted both the accused persons as the case of the prosecution was not found proved beyond reasonable doubt. Aggrieved by the said judgment, the present appeal was filed by the wife of the deceased, being victim of the case, under the proviso of Section 372 of CrPC. 4. Mr. Aggrieved by the said judgment, the present appeal was filed by the wife of the deceased, being victim of the case, under the proviso of Section 372 of CrPC. 4. Mr. Suryadeep Bishnoi, learned counsel appearing for the appellant, submits that the acquittal by the lower court was based on surmises and conjectures. The trial court has failed to appreciate the evidence produced by the prosecution. The testimony of witness PW-7 Laxminarayan reveals that the accused Rameshwar had confessed his crime to him but the trial court has failed to appreciate the same. The recovery of mobile phone of the deceased from the house of accused Rameshwar and the factum of extra judicial confession made by the accused have been duly proved and thus, there is ample evidence to convict the accused. 5. Per contra, learned public prosecutor has submitted that the judgment of acquittal passed by the learned trial court is error free and does not warrant any interference by this Hon’ble Court. The extra judicial confession cannot be taken into account so as to form the basis of conviction in the present case as the same is not trust worthy and the testimony of PW-7 Laxminarayan cannot be relied upon. 6. Heard learned counsel for the parties and perused the material available on record. 7. It is undisputed that there is no eye-witness account of the incident; thus, the case of the prosecution is based on circumstantial evidence. It is well-entrenched in criminal law that in order to base a conviction on circumstantial evidence, each of the circumstances should form a chain so complete that no other possible conclusion is derivable other than the guilt of the accused. The links of the chain should be connected to each other in such a manner that there seems no room for doubt or suspicion. 8. We begin with the testimony of the Investigating Officer Narayan Singh who was examined as PW-16 in the trial. He deposed that as disclosed by the accused Rameshwar, recovery of a bed-sheet (Exhibit P-18) was effected from his house which was allegedly used by the accused to strangle the deceased to death. 9. As per the recovery memo (Exhibit P-18), no marks whatsoever were found on the bed-sheet allegedly recovered in pursuance of the information disclosed by the accused Rameshwar in custody. 9. As per the recovery memo (Exhibit P-18), no marks whatsoever were found on the bed-sheet allegedly recovered in pursuance of the information disclosed by the accused Rameshwar in custody. The Post Mortem Report (Exhibit P-24) does not reveal any marks of strangulation and the cause of death has been opined to be shock caused by cumulative effect of the antemortem injuries endured by the deceased. The said recovered bed-sheet was not sent for FSL and there is no way to cement the theory of the prosecution that the deceased was strangulated to death by the accused persons and thereafter, his body was thrown on the railway track. The recovery of the bed-sheet allegedly effected at the instance of accused does not connect the accused persons to the crime in any manner. It seems that the prosecution set up a story according to which the deceased was strangulated using a cloth but this fact has been belied in light of the medical evidence and thus, the recovery of the bed-sheet (loi) is reduced to being nothing more than a farce. It can be assumed against the backdrop of the above-mentioned observations that the Investigating Agency has not undertaken its task with due care, sincerity and diligence. 10. PW-16 Narayan Singh has also deposed before the court that the accused Rameshwar had disclosed to him that the phone which Rajesh had with him on the night of the incident was thrown by him into the ‘kui’ of the toilet at his house and the same was recovered vide recovery memo dated 25.01.2017 (Exhibit P-7). 11. The testimony of Sajjan Kumar, a constable at Police Station Suratgarh, who was examined as PW-4 in the trial is important to look at while examining the recovery of the mobile phone from accused Rameshwar’s house. He deposed that the alleged mobile phone of the deceased was recovered at the instance of the accused Rameshwar. The phone was allegedly recovered from the ‘kui’ of the toilet in Rameshwar’s house. During cross-examination of this witness, it is revealed that the said ‘kui’ was not covered and there was neither a door attached to the entrance of the ‘kui’ nor was there a roof above the toilet. As per common understanding, the fact that the police had to dig deep to recover the phone from the ‘kui’ does not sit well with this Court. 12. As per common understanding, the fact that the police had to dig deep to recover the phone from the ‘kui’ does not sit well with this Court. 12. It is also revealed that Jaykishan, who was the brother of the deceased, lived near the place from where the recovery of deceased Rajesh’s phone was made. In this view of the matter, the recovery of mobile phone of the deceased from the ‘kui’ cannot be relied upon as anybody could have accessed the ‘kui’ of the toilet in Rameshwar’s house and we are in agreement with the view of the trial court that the fact that the phone was not found with the body at the railway track and was rather kept in the ‘kui’ of the toilet at the house of the accused seems to be suspicious. The fact that the accused person kept a part of the evidence after committing the crime when he had already disposed off the body of the deceased seems hard to believe. The recovery of mobile phone of the deceased has not established any link between the death of the deceased and the accused persons. 13. PW-16 Narayan Singh further stated that he recovered the mobile phone which was allegedly used by the accused Pooja to call the deceased in furtherance of the information furnished by accused Pooja during investigation. The said recovery was made vide recovery memo Exhibit P-20 from a trunk at her house. 14. On perusal of the evidence of Call Data Record, it is revealed that calls were exchanged between the number allegedly used by accused Pooja and the number of the deceased Rajesh. However, Exhibit P-45 reveals that the owner of the SIM card bearing phone number 7740908091, which was allegedly being used by the accused Pooja, was one Barju Devi. Arguendo, even if it is assumed that calls were exchanged between the deceased Rajesh and the accused Pooja, it cannot be taken as proof of involvement of accused Pooja in the murder of the deceased. 15. Arguendo, even if it is assumed that calls were exchanged between the deceased Rajesh and the accused Pooja, it cannot be taken as proof of involvement of accused Pooja in the murder of the deceased. 15. At the best, the fact of relationship can be established by the recovery of mobile phone of accused Pooja as well as the Call Data Record; although no other evidence has been adduced in this regard but even if it is assumed that they were involved in an extra-marital affair with each other, we cannot jump to the conclusion by any stretch of imagination that the murder was committed by the accused Pooja and her brother accused Rameshwar. As a prudent requisite, there needs to be sufficient evidence to connect the facts in issue to the principal fact in order to provide solid and incontrovertible evidence which is evidently lacking in the instant case. 16. Mahendra Kumar was examined as PW-6 in the trial and he stated in his testimony that Jaikishan who was the brother of the deceased lived near Rameshwar’s house and there were friendly relations between the families of the two. Even Rameshwar and Rajesh knew each other and both of them used to work as labour together. He further deposed that on 8.1.2017, Rameshwar’s sister Pooja and her husband had come to his house on a motorcycle. According to this witness, Rajesh and Pooja were having a love affair. It was told to him by Rajesh‘s wife that Pooja was repeatedly calling Rajesh and that Rajesh left his wife at home saying that he’ll be right back but Rajesh did not return home. In the morning, at around 6 a.m., Jaikishan called the witness informing him about the fact that Rajesh’s body was found at the railway track. When call details were sought, it was revealed that Pooja had called Rajesh at night and then later Rajesh’s phone was recovered from Rameshwar’s house. Even if these circumstances are taken on their face value, it cannot be deduced that Rameshwar and Pooja conspired to kill Rajesh as there is no direct connection between the recovery of the phone and the alleged crime. 17. One of the members of the medical board that conducted the autopsy of the deceased and prepared the PMR, Dr. Deepesh Soni, was examined as PW-14 in the trial. 17. One of the members of the medical board that conducted the autopsy of the deceased and prepared the PMR, Dr. Deepesh Soni, was examined as PW-14 in the trial. He has stated in his sworn statement that the death of the deceased was caused due to the shock caused by the cumulative effect of all the ante-mortem injuries suffered by the deceased. The board had sent samples for testing to the FSL to see if any poison or chemical substance was administered to the deceased. The FSL report (Exhibit P-35) revealed that there was presence of ethyl alcohol in the body of the deceased but no poisonous substance was found. Upon cross-examination, this witness further revealed that there were neither any injuries nor any bruises or finger marks on the neck of the deceased that may indicate that he was throttled to death. When a death is caused by strangling, subconjunctival hemorrhage occurs under the surface of the eye. According to PW-14, there were no such clots present in the conjunctiva of the eyes of the deceased. 18. Lakshminarayana was examined as PW-7 in the trial and his testimony is important in this case as he deposed that the accused Rameshwar had come to one Lal Babu’s house where he (Rameshwar) told him that he had committed a mistake and that his sister and Rajesh were having an affair and owing to the same, he had murdered Rajesh with the assistance of his sister and her husband. Upon cross-examination, it was stated by Lakshminarayana that he did not know about the affair between Rajesh and Pooja before hand and came to learn about it during the confession made by accused Rameshwar. He also stated that initial perception of the people of their community was that the deceased had committed suicide. 19. The testimony of PW-7 is of an unnatural nature to the extent that why would a person who has committed a murder reveal the same to him when he was present in the company of one other person i.e. Lal Babu; moreover, Laxmi Narayan was not any monk, saint, preacher or sage of any religious institution nor was he any person of authority and there has been no evidence that he was even a confidante of the accused Rameshwar, rather he was cousin of the deceased. There can be no hope in the mind of the accused that this witness would save him or provide help to him. It is bizarre and outlandish that the maker of an extra judicial confession would confide in a person who is related to the deceased. The maker of a confession is likely to confess in front of a person in whom he reposes trust and faith. The testimony of witness in whose presence a confession is made by an accused needs to be examined thoroughly and with abundant caution. There should be no fact suggesting that such a witness will have an intent to cause a deleterious effect upon the accused so as to favour his conviction. In the matter at hand, there is a strong probability of PW-7 having an inclination of convicting the accused as he is a relative of the deceased. 20. Lal Babu was examined as PW-9 in the trial. He stated in his sworn statement that accused Rameshwar had come to his house where Lakshminarayana was also present and confessed that he (Rameshwar) and Lekhram (husband of accused Pooja) had murdered Rajesh and dumped his body on the railway tracks. It was further deposed by Lal Babu that accused Rameshwar had confessed that Pooja was also involved in the crime and that they strangled Rajesh to death and his eyes had popped out. While being cross-examined, this witness stated that he was not aware of the affair that was ensuing between the deceased Rajesh and accused Pooja. 21. If the testimonies of PW-7 and PW-9 are considered in context of making of extra judicial confession by accused Rameshwar, it is apparent that PW-9 has exaggerated the details of the confession. This further creates doubts upon the alleged confession made to these witnesses. 22. As discussed above, the fact that a person accused of murder would make a confession of his sin before the persons who were neither his friends or relatives nor any spiritual or public authorities rather these two witnesses were relatives of the deceased does not seem to be worth relying upon. If it is assumed for a moment that the accused had thought it fit to confess his sin, he would have rushed to the Police Station to narrate the entire story instead of making an admission before the opposite party. If it is assumed for a moment that the accused had thought it fit to confess his sin, he would have rushed to the Police Station to narrate the entire story instead of making an admission before the opposite party. It is eliciting from the testimonies of the aforesaid two witnesses that both these witnesses were not knowing about the affair between deceased Rajesh and accused Pooja and so, there was no occasion for the accused Rameshwar to make a confession in front of these witnesses. 23. Extra judicial confession is a weak type of evidence and abundant caution needs to be exercised while examining the same. If an extra judicial confession is not corroborated by surrounding circumstances or any other strong evidence, it cannot be deemed a reliable piece of evidence. Hon’ble the Supreme Court has held in Shailendra Rajdev Pasvan Vs. State of Gujarat reported in (2020) 14 SCC 750 , that as there was no credible corroboration of the making of confession as well as of the material details alleged in the extra-judicial confession, a conviction based on such a confession could not be sustainable. 24. In a recent judgment dated 28th July, 2022 passed in Criminal Appeal No. 2119 of 2010 titled State of Rajasthan Vs. Kistoora Ram, the Apex Court has held that the scope of interference in an appeal against acquittal is limited unless the view taken by Court is impossible or perverse. It was opined that if two views are possible, then the order of acquittal cannot be discarded only because the Appellate Court is of the view that conviction is more probable. The order of acquittal would warrant interference only when the view taken by the lower court is not possible at all. In the above case, the view taken by the High Court that extra-judicial confession is a weak type of evidence and conviction based on the same is not sustainable unless there is some corroboration, was not found to be perverse or impossible and thus, did not warrant any interference. 25. In light of the above observations and considering the arguments advanced at the bar, this Court does not find any room for interference in the order passed by the learned trial Court. 25. In light of the above observations and considering the arguments advanced at the bar, this Court does not find any room for interference in the order passed by the learned trial Court. Neither is the extra judicial confession worth relying upon, nor are the recoveries connecting the accused persons to the crime in any manner, and nor do the testimonies of the prosecution witnesses present a story or series of events so complete that the acquittal be reversed by this Court. 26. The aspect of motive cannot go undiscussed. Motive plays a pivotal role in cases that hinge upon circumstantial evidence. In this case, though efforts have been made to assert that deceased Rajesh was having extra-marital relations with accused Pooja, however, no concrete evidence has been placed on record to establish the fact of extra-marital relationship between the two except bald and vague allegations levelled by the prosecution. No particular date or specific incident has been put on record so as to draw an inference regarding the above. It may be a personal perception or a conjecture but there is a long mental distance between may and must. In order to base a conviction upon the evidence produced before the court, the definite tendency and conclusive nature of the evidence are a must. 27. In our considered view, the prosecution has miserably failed to establish the factum of motive, thus, a serious link of the chain of circumstances is absent. As discussed in the preceding paragraphs, the bits of chain of circumstantial evidence concerning recoveries made by the agency have not been established beyond reasonable doubt and thus, they are also missing, thereby de-linking or breaking the chain of circumstantial evidence of this case. 28. The cardinal principles that come into play in cases based on circumstantial evidence were enumerated by the Apex Court in the case of Hanumant Govind Nargundkar Vs. State of M.P. reported in AIR 1952 SC 343 and they have stood the test of time and are applied consistently in consequent judgments till date. The principles laid down by Hon’ble the Supreme Court are as follows : “1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The principles laid down by Hon’ble the Supreme Court are as follows : “1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The circumstances, if 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; & 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 but should be inconsistent with his innocence-in other words, the circumstances should exclude every possible hypothesis except the one to be proved.” 29. In a very recent judgment dated 30th September, 2022 passed by Hon’ble the Supreme Court in Munikrishna @ Krishna Etc. Vs. State By Ulsoor PS (Criminal Appeal Nos. 1597-1600 of 2022), the chain of circumstantial evidence was held to be incomplete as the recoveries were made at the instance of the accused & were doubtful and the entire case of the prosecution was based on the confessional statements made by the accused before the police. Thus, the accused were acquitted for want of complete chain of circumstantial evidence pointing towards their guilt. In the above case, it was also opined by the Apex Court that there is a heavy duty on the shoulders of the prosecution to prove their case beyond reasonable doubt. 30. The incriminating facts and circumstances of the case need to be proved against the accused beyond all reasonable doubt and the instances which are forming the chain of circumstantial evidence need to be closely connected to the principal fact. The only possible deduction of these facts and circumstances should be one which is congruous with the guilt of the accused and inconsistent with his/her/their innocence and this is not the case in the instant matter for consideration before us. The cumulative effect of all the facts in issue of the present case does not prove the principal fact and there is insufficiency in the circumstantial evidence. Thus, the case of the prosecution has not been established beyond reasonable doubt and the accused persons are liable to be acquitted of the charges imposed upon them. 31. The cumulative effect of all the facts in issue of the present case does not prove the principal fact and there is insufficiency in the circumstantial evidence. Thus, the case of the prosecution has not been established beyond reasonable doubt and the accused persons are liable to be acquitted of the charges imposed upon them. 31. The finding of the trial Court has been arrived at after due deliberation and careful examination of the evidence produced before it and the same is not erroneous and thus, our opinion is in concurrence with the conclusion reached by the trial court. 32. Accordingly, the appeal is dismissed. The impugned judgment of acquittal dated 16.01.2020 passed by learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No. 08/2017 is upheld.