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2023 DIGILAW 446 (RAJ)

Asharam v. State of Rajasthan

2023-02-07

BHUWAN GOYAL, PANKAJ BHANDARI

body2023
ORDER : (Pankaj Bhandari, J.) With the consent of the parties and taking note of the custody period, the matter is taken up for final hearing. 2. It is informed by learned GA cum AAG that victim has been intimated about filing of the present appeal and suspension of sentence application. Report is taken on record. 3. No one has put in appearance on behalf of victim, despite information. 4. Accused-Appellant has preferred this appeal aggrieved by judgment and order dated 08.01.2016 passed by District and Sessions Judge, Sawaimadhopur in Sessions Case No.30/2014, whereby appellant has been convicted for offence under Section 302 IPC and has been sentenced to life imprisonment and fine of Rs.5,000/- and in default of payment of fine, to further undero six months additional rigorous imprisonment. 5. Succintly stated the facts of the case are that Kanhaiyalal lodged a written report (Ex.P.1) at Police Station Bonli, District Sawaimadhopur on 20.01.2014 alleging therein that in the afternoon at 2:30 pm, two boys came from village-Purapane Singh and informed him that his maternal grand daughter-Asha has expired. It is mentioned that he came on the motorcycle of two boys to village-Purapane Singh and saw his maternal-grand daughter lying in pool of blood. It is also mentioned in the FIR that an axe was lying near the dead body. It is also mentioned in the FIR that on enquiry, the persons who were present there, informed him that Asha has been murdered by her husband-present appellant. On receipt of above report, police registered FIR No.28/2014 and commenced investigation. After due investigation, police filed challan against appellant under Section 302 IPC. The learned Trial Court framed charges for offence under Section 302 IPC. Appellant denied the charges and sought trial. As many as 15 witnesses were examined and 23 documents were exhibited on behalf of the prosecution. Appellant was examined under Section 313 Cr.P.C. and has stated that he has been falsely implicated in this case. Learned Trial Court after hearing both the parties convicted and sentenced the appellant for offence under Section 302 IPC vide judgment and order dated 0801.2016. Aggrieved by which, the present appeal has been preferred. 6. It is contended by counsel for the accused-appellant that the case rests on circumstantial evidence. A complete chain is not made out and hence the conviction order deserves to be set aside. Aggrieved by which, the present appeal has been preferred. 6. It is contended by counsel for the accused-appellant that the case rests on circumstantial evidence. A complete chain is not made out and hence the conviction order deserves to be set aside. It is also contended that in the FIR (Ex.P-1), there is no mention about the extra judicial confession made by the accused before complaint. It is contended that in the FIR, there is mention that the axe was near the dead body, however, the police has recovered the axe on the next day from the kitchen, adjacent to the place of occurrence which goes to show that the Investigating Officer has tried to implicate the present appellant. It is also contended that Ex.P-3 (site plan) was prepared on the next day i.e. 21.01.2014, whereas as per the statement of the witnesses, police reached the place of occurrence on the same day and had also prepared site plan on the same day in the presence of the complainant-Kanhaiyalal (PW-2). Similar is the statement of Ramdhan (PW-1). 7. It is also contended that as per the prosecution version, the appellant had locked the room and left the place. The lock was broken by PW-1 (Ramdhan), neither the broken lock, nor the key has been recovered at the instance of the appellant which creates doubt on the prosecution version. It is also contended that no blood stained clothes of the appellant were recovered by the police and no motive has been assigned. It is also contended that Dr. G.P.Goyal (PW-15) has mentioned that the deceased has sustained one stab wound size of 7cm x 2.5 cm, incised wound size of 3cm x 10cm, muscle deep below chin region and one lacerated wound size of 7cm x 2cm, skindeep on left shoulder region. It is argued that all the above injuries could not have been caused by an axe and the axe was not put to the doctor to establish that these injuries which were sustained by the deceased could have been caused by the recovered axe. It is also contended that as per the statement of the PW-1 (father of the complainant), a girl named Lali was the first person who had seen the deceased lying in pull of blood. Prosecution has not produced Lali to establish the same. It is also contended that the axe was sent for FSL. It is also contended that as per the statement of the PW-1 (father of the complainant), a girl named Lali was the first person who had seen the deceased lying in pull of blood. Prosecution has not produced Lali to establish the same. It is also contended that the axe was sent for FSL. As per the FSL report (Ex.P-20), there was human blood on axe but the blood group was inconclusive. It is argued that since the recovery of axe itself is made up by the Investigating Officer, the report which is inconclusive with regard to blood group cannot be read against the appellant. It is further contended that the two boys who had informed the complainant (PW-2) were also not produced by the prosecution. It is contended that the appellant did not have any motive to commit the crime. 8. Learned GA cum AAG has opposed the appeal. It is contended that appellant was last seen in the company of the deceased and his own father (PW-1) has mentioned that he alongwith his wife went to the Pipalda to collect their pension and at that time, the appellant was alone with his wife deceased-Asha. It is also contended that when PW-1 reached home, a girl named Lali climbed on the wall and saw the deceased lying in pull of blood and thereafter, PW-1 broke opon the lock and informed PW- 2 (Kanhaiyalal) about the demise of the deceased. It is contended that as per the statement of witnesses, appellant had a motive for murdering his wife as he was under apprehension that his wife would be sent to some other place. It is further contended that the axe which has been recovered at the instance of the appellant was found stained with blood which has human blood which connects the appellant with the crime. It is contended that chain is made out and the learned Sessions Judge has not committed any error in convicting the accused-appellant. 9. We have considered the contentions and have perused the record. 10. It is evident that the incident took place in the morning on 20.01.2014 when PW-1 Ramdhan (father of the appellant) reached home. As per his version he left the home in the morning to collect his pension and at that time, appellant was alone with his wife. 9. We have considered the contentions and have perused the record. 10. It is evident that the incident took place in the morning on 20.01.2014 when PW-1 Ramdhan (father of the appellant) reached home. As per his version he left the home in the morning to collect his pension and at that time, appellant was alone with his wife. However, as per his evidence, the room in which deceased was lying was locked and he broke opon the lock. It is evident that the police has not recovered the broken lock to establish the above facts. It is also evident that the Police has not produced any photographs and has not made any memo of broken lock and door. It is also evident that the police has not recovered the key of lock to establish that the appellant had locked the room. As per the prosecution version, appellant was present at the place of occurrence when police reached and he admits his guilt but it is evident first of all that there is no mention of extra judicial confession in FIR secondly. It is also evident that the police has made a fake recovery of the axe as from the FIR itself, it is evident that the axe was lying near the dead body. Thus, it is evident that a fake recovery was made at the instance of the police on the next date i.e. 21.01.2014 from a kitchen adjacent to the place of occurrence as is evident from the perusal of the Ex.P- 3. From perusal of the statement of Dr. G.P. Goyal (PW-15), deceased has sustained one stab wound size of 7cm x 2.5 cm, incised wound size of 3cm x 10cm, muscle deep below chin region and lacerated wound size of 7cm x 2cm, skin deep on left shoulder region. There is no evidence on behalf of the prosecution to suggest that these injuries could have been caused by an axe which has been recovered in this case. Deceased has sustained lacerated wound, stab wound and incised wound which could not have been caused by an axe alone, thus the prosecution's story that the appellant had killed his wife with recovered axe is not established, further more the blood group on the axe is also inconclusive and is not matching with the blood group of the deceased. 11. Deceased has sustained lacerated wound, stab wound and incised wound which could not have been caused by an axe alone, thus the prosecution's story that the appellant had killed his wife with recovered axe is not established, further more the blood group on the axe is also inconclusive and is not matching with the blood group of the deceased. 11. It is also clear from the perusal of the FIR that Kanhaiyalal (PW-2) did not disclose about the accused making extra judicial confession in his FIR. As per PW-1 and PW-2, police reached the place of occurrence immediately after the occurrence and enquired from the appellant and appellant informed that he has killed his wife. If that is so, why this fact is missing in the FIR is not clarified. It is also clear from the cross-examination of the PW-2 (Kanhaiyalal) that the report which he gave to the police was written by the police. He has clarified that the police personnel had written the report and the report (Ex.P-1) was read over to him. If the appellant had made an extra judicial confession, the fact of extra judicial confession should have been mentioned in the FIR. The site plan (Ex.P-3) as per PW-2 was made at the same time, however, the document which is available on record indicates that the site plan was made on the next day. 12. In Sharad Birdhichand Sarda v. State of Maharashtra; (1984) 4 SCC 116 , Apex Court has held that following conditions must be fulfilled before a case against an accused can be said to be fully established:- "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) the facts so established should be consist only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) the circumstances should be of a conclusive nature and tendency. (iv) they should exclude every possible hypothesis except the one to be proved. (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 13. (iv) they should exclude every possible hypothesis except the one to be proved. (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 13. Learned Trial Judge has convicted the appellant on the basis of extra judicial confession and on the basis of human blood found on the axe. We are not in agreement with the conclusion drawn by the learned Sessions Judge for the very reason that there are many lacunae in the prosecution's case namely the non recovery of the lock and key, non-examination of the Lali and two boys who informed the complainant, fake recovery of an axe and the blood group on the axe was found inconclusive. Further, there was no recovery of blood stained clothes of the appellant who was present at the place of occurrence. Had the appellant has murdered his wife, there is all likelihood that his clothes would be stained with blood. Since there is no mention of extra judicial confession in the FIR which was lodged immediately after the incident at 05:15 pm at instance of PW-2 (Kanhaiyalal), merelyon the basis of the statement of the witnesses that the police made an extra judicial confession cannot be made the base for convicting the accused-appellant. Further it is not clear as to what the motive was for the appellant to commit the crime. 14. In view of the above, we deem it proper to allow the appeal and set aside the judgment and order dated 08.01.2016. 15. Criminal appeal is accordingly, allowed. Judgment and order dated 08.01.2016 passed by District and Sessions Judge, Sawaimadhopur is quashed and set aside. The appellant is acquitted of the charges levelled against them. He is in jail, he be set at liberty forthwith, if not wanted in any other case. 16. 15. Criminal appeal is accordingly, allowed. Judgment and order dated 08.01.2016 passed by District and Sessions Judge, Sawaimadhopur is quashed and set aside. The appellant is acquitted of the charges levelled against them. He is in jail, he be set at liberty forthwith, if not wanted in any other case. 16. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 17. Suspension of sentence application stands disposed.