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2025 DIGILAW 1191 (RAJ)

Kalyan, S/o. Kesar Lal v. State of Rajasthan

2025-04-30

AVNEESH JHINGAN, BHUWAN GOYAL

body2025
Order : (AVNEESH JHINGAN, J.) 1. This criminal appeal is filed by Kalyan (hereinafter referred to as ‘appellant’) against judgment and order of conviction and sentence dated 23.01.1996 passed by Additional Sessions Judge No. 1, Jaipur City, Jaipur in Sessions Case No. 56/1995 (arising out of FIR No.647/1994 lodged at Police Station Sodala, Jaipur for the offence under Section 302 IPC). 2. The deceased as per routine did not turn back from work on 19.12.1994 and his dead body was found on 20.12.1994 lying in front of Ashoka Company, Jamna Nagar, Sodala. The body was identified as of Lal Chand Mehra (hereinafter referred to as ‘deceased’) by PW-1 Jai Kishan brother of deceased and the FIR was registered against unknown persons. During investigation, Mittu @ Kailash and the appellant were nominated as accused and charge-sheet was filed. The charges framed against accused- respondent were denied and trial was claimed. Prosecution produced eighteen witnesses and exhibited thirty one documents. Statement of accused-respondent was recorded under Section 313 Cr.P.C. The trial court vide judgment and order dated 23.01.1996 convicted the appellant under Section 302 IPC. Vide order of even date, the appellant was sentenced to undergo life imprisonment and to pay fine of Rs.200/-. In case of default of payment of fine, to undergo imprisonment for one month. Hence, this criminal appeal. 3. Learned counsel for the appellant submits that out of four witnesses relied upon by the prosecution to prove last seen theory, two turned hostile and third one has not named the appellant. The contention is that the recovery made at the instance of the appellant was not co-related to the death of the deceased. The argument is that there were variations in the statements given by PW-5 Mohan @ Manohar and PW-12 Ganesh Narain Mehra. It is argued that PW-2 to PW-5 stated to have seen appellant with Lala and it was not proved by prosecution that the deceased Lal Chand Mehra was known as Lala. 4. Learned Public Prosecutor submits that the deceased had suffered nineteen injuries and the blood stain on the shirt of the deceased was of blood group ‘B’. The contention is that PW-5 Mohan @ Manohar deposed to have seen the appellant along-with the deceased on 19.12.1994. 5. Heard counsel for the parties and perused the record with their able assistance. 6. Learned Public Prosecutor submits that the deceased had suffered nineteen injuries and the blood stain on the shirt of the deceased was of blood group ‘B’. The contention is that PW-5 Mohan @ Manohar deposed to have seen the appellant along-with the deceased on 19.12.1994. 5. Heard counsel for the parties and perused the record with their able assistance. 6. The law is well settled that for conviction on the basis of circumstantial evidence the chain should be complete and a missing link shall prove fatal to the case of prosecution. Reference be made to the decision of Supreme Court Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 , wherein it was held: “152. A close analysis of this decision would show that the 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. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973CriLJ 1783 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent 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. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 7. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 7. The prosecution set up the case on the basis of last seen theory. To support the case, PW-2 Jagdish, PW-3 Raju, PW-4 Ram Kumar Tiwari and PW-5 Mohan @ Manohar were examined to establish that accused was last seen on 19.12.1994 with the deceased at around 09:30 PM. A red color shirt having blood stains was recovered at the instance of appellant from his house. As per the Forensic Science Laboratory (FSL) report, the blood stains were of blood group ‘B’. PW-12 Ganesh Narain Mehra was examined by the prosecution for attributing motive that there was dispute among the appellant, Jagdish the maternal uncle of Mittu @ Kailash and the deceased with regard to land of the temple. 8. The statement of PW-2 Jagdish recorded by the Police under Section 161 Cr.P.C. was basis for nominating the appellant on last seen basis but PW-2 turned hostile. Similar was fate of reliance by prosecution on the statement of PW-3 Raju. Both these witnesses stated that the portion of statements recorded by police marked as A to B & C to D and A to B respectively was not stated by them. 9. PW-4 Ram Kumar Tiwari deposed that on 20 or 21 December, 1994 at 10.30 P.M. he had seen Mittu @ Kailash along- with another person. In other words, he neither named the appellant nor the deceased. Even otherwise as per case of the prosecution, the dead body of deceased was found on morning of 20.12.1994. 10. PW-5 – Mohan @ Manohar deposed that after purchasing non-veg from shop he went home and Mittu Kalyan and Lala were talking in front of shop of Jagdish. It is important to note that he named Mittu Kalyan as one person. In the cross-examination he referred Mittu @ Kalyan. Another aspect to be considered is that in the statement before the trial court PW-2 to PW-4 had not deposed that PW-5 was present on 19.12.1994 when the accused and deceased were seen together. 11. As per the post mortem report dated 20.12.1994, cause of death was ante-mortem injuries to head and brain. No weapon causing the injury was recovered. Another aspect to be considered is that in the statement before the trial court PW-2 to PW-4 had not deposed that PW-5 was present on 19.12.1994 when the accused and deceased were seen together. 11. As per the post mortem report dated 20.12.1994, cause of death was ante-mortem injuries to head and brain. No weapon causing the injury was recovered. The recovery made at the instance of the appellant of red shirt having blood stains does not enhance the case of the prosecution as PW-11 Munna & PW-13 Gopal the witnesses to the recovery memo were declared hostile. For recovery no site plan was prepared. 12. It cannot be lost sight of that the blood group of the blood stains on the shirt was found to be ‘B’ but the blood group of the deceased was not examined. The contention of learned Public Prosecutor that the blood stains on the shirt of the deceased were also of blood group ‘B’, does not prove that blood group of the deceased was ‘B’. 13. We may note that Rhesus Factor of blood group was not mentioned in FSL report. It still remains to be seen that whether the blood group itself can co-relate the evidence in absence of DNA report as number of persons have blood group ‘B’. 14. To complete the chain, one of the most important link is the motive behind the incident. PW-12 Ganesh Narain Mehra was examined by the prosecution to attribute motive. Suffice to say that PW12 made vast improvements on his statement recorded by the Police. In his cross-examination, he stated that no untoward incident with regard to friction among the appellant, Jagdish (maternal uncle of Mittu @ Kailash) and the deceased was ever reported. It was stated by him that when the dispute occurred, there were ten to fifteen persons present at the spot but it is to be noted that no such persons were examined by prosecution. In the cross-examination PW-12 stated that no statement was not recorded on 21.12.1994, whereas from perusal of the statement of PW12, Exhibit D1, it is evident that statement was recorded on 21.12.1994. In view of the contradictions and variations in the statement of PW-12, it cannot be held to be reliable. 15. The prosecution has failed to prove beyond reasonable doubt the case u/s 302 IPC against the appellant. The appeal is allowed. In view of the contradictions and variations in the statement of PW-12, it cannot be held to be reliable. 15. The prosecution has failed to prove beyond reasonable doubt the case u/s 302 IPC against the appellant. The appeal is allowed. The judgment of conviction and order of sentence dated 23.01.1996 is quashed. The appellant is on bail, need not to surrender and his bail bond is discharged. 16. The appellant - Kalyan is directed to furnish personal bond in the sum of Rs.50,000/- and surety bond in the like amount in accordance with provisions of Section 437-A of Cr.P.C./481 of B.N.S.S. before the Registrar (Judicial) of this Court within four weeks from the date of this judgment, 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 Supreme Court. The bail bonds will be effective for a period of six months.