Ganshyam S/o Govind Ram vs State of Rajathan

In both the appeals filed under Section 374(2) Cr.P.C. the

appellants are assailing the validity of the judgment dated

24.8.2006 passed by the learned Addl. Sessions Judge (FT) No.1,

Bhilwara in Sessions Case No.34/2006 whereby all the three

accused appellants were convicted for offence under Section

302 / 34 and 460 / 34 IPC and following sentence was passed

against them:

Under Section 302 / 34 IPC Life imprisonment with fine of Rs.2,000/- and in default of payment of fine to further undergo two months imprisonments .

Under Section 460 / 34 IPC Seven years RI with fine of Rs.1,000/- and in default of payment of fine to further undergo one month imprisonment. 2. Brief facts of the case are that on 27.12.2005 at 12.00 pm,

the complainant PW--1 Hukam Singh submitted a written report

(Ex.P/1) at Police Station Kareda, District Bhilwara alleging therein

that he is doing the work of selling milk in village Gajuna, today in

the morning at about 7.00 am I went to the house of deceased

Sobha Lal S/o Gulab Chand Mahajan for distributing milk, I raised

my voice loudly to call him, to take milk but no response came

from the house, the door of house and rooms were opened. At

that time, the neighbor Sajjan Singh also came there and called

"Sethji Sethji" but no response came from the house. Number of

villagers came on spot and informed the police by telephone. One

Suresh Jain and police officials entered in the house and found

that dead body of Sobha Lal was lying on cot and articles of house

were scattered and as per his information, the wife of Sobha Lal

just day before went to village Bemali. The deceased Sobha Lal

was not having any issue and living in the house with his wife and

on the date of occurrence he was alone in the house, therefore,

assailants entered in the house in night and after killing him took

away the ornaments and other articles of Sobha Lal and ran away.

Upon aforesaid complaint, FIR no.111/2005 was registered

against unknown persons under Section 460 IPC at Police Station

Kareda on 27.12.2005 and investigation was commenced.

During investigation, site was inspected by the police and

after usual investigation the statement of prosecution witnesses

were recorded and body of the deceased Sobha Lal was taken to

the Government hospital, Asind for post mortem where post

mortem was conducted by the medical board and report (Ex.P/24)

was prepared and handed over to the police for investigation.

During investigation the accused appellants were arrested by the

police on the basis of recovery of golden ornaments, coins ,

currency note, pass book and RC book. The typed stamps and

other articles were also recovered vide Ex.P/99, P/11 and P/12.

One knife and motor cycle Hero Honda Deluxe was also recovered

during investigation as per information given by the accused

appellants under Section 27 of the Evidence Act.

After post mortem, the dead body of the deceased was

handed over for cremation to the family members vide Ex.P/14.

The accused appellant Ghanshyam, Praksh and Gaffur Mohd were

arrested vide Ex.P/17, P/18 and P/19 respectively. The

proceedings by dog squad was also executed vide Ex.P/28 and all

the recovered articles were sent for chemical examination of the

FSL and ultimately after completion of investigation, charge-sheet

was filed against the accused appellants in the court of Judicial

Magistrate, First Class, Mandalgarh on the basis of circumstantial

evidence of recovery because no direct evidence was found.

The learned Magistrate committed the case for trial to the

court of District & Sessions Judge, Bhilwara from where, the case

was transferred to the court of Addl. District & Sessions Judge

(FT) No.1, Bhilwara for trial.

The learned trial court after providing an opportunity of

hearing framed charge against the accused appellants for offence

under Section 302, 302 / 34, 460 and 460 / 34 IPC and commenced

trial.

In the trial, the statements of 26 prosecution witnesses were

recorded and 42 documents were exhibited from prosecution side,

thereafter statement of the accused appellants were recorded in

the trial under Section 313 Cr.P.C. but all accused appellants

denied the allegation of prosecution witnesses levelled against

them and said that they are innocent. Inspite of granting

opportunity to lead evidence in defence no evidence led by the

accused appellants.

The learned trial court finally heard the arguments and vide

judgment dated 24.8.2006 passed in Sessions Case No.34/2006

convicted the accused appellants and held them guilty for offence

under Section 302 / 34 and 460 / 34 IPC on the basis of

circumstantial evidence of recovery of ornaments and other

articles and passed sentence aforementioned.

Learned counsels for the appellants vehemently argued that

the judgment impugned is based upon circumstantial evidence of

recovery of ornaments which has not been proved by the

prosecution beyond reasonable doubt but the learned trial court

erroneously convicted the accused appellants for alleged offence

under Section 302 / 34 and 460 / 34 IPC, therefore, the judgment

impugned deserves to be quashed. It is further submitted that

the alleged incident took place in the night on 26-27.12.2005 but

FIR (Ex.P/1) was filed at 12.00 pm on spot in which the names of

the appellants are not mentioned nor FIR was filed by the eye

witness of the occurrence, the entire case is based upon

circumstantial evidence which has not been proved. According to

the prosecution case, the "motive" of crime was dacoity but there

is no evidence to not connect the accused appellants with the

alleged crime because the learned trial court has erroneously

relied, upon the statement of PW--22 Madan Lal, PW--24 Prakash

Chandra Khateek and PW--26 Bhagwan Singh, so also,

documents (Ex.P/28, P/29, P/30 and P/42). Therefore, the

finding of the learned trial court deserves to be quashed.

Learned counsel for the appellants vehemently argued that

recovery of ornaments which is said to be recovered at the

instance of the accused appellants vide recovery memo Ex.P/9 in

the presence of PW--3 Gokal Ram and PW--5 Bhanwar Singh

cannot relied upon because all these witnesses turned hostile and

did not support the prosecution case. The learned counsel for the

appellants submit that totally false and concocted story is framed

by the prosecution on the basis of so called evidence of recovery

of ornaments and knife, which is evident from the fact that

information with regard to recovery of knife was obtained from

accused appellant Gaffur Mohd. vide Ex.P/33 whereas knife was

recovered vide Ex.P/10 on 5.1.2006 at the instant of accused

appellant Ghanshyam, that too, in the presence of two witnesses

Bhanwar Singh and Ram Prasad Joshi and both the witness of

recovery of knife PW--4 Ram Prasad and PW--5 Bhanwar Singh

turned hostile and did not support the prosecution case, therefore,

if the recovery of knife and ornaments has not been proved by the

witnesses then obviously, the finding of conviction recorded by the

learned trial court is totally baseless. Therefore, the judgment

impugned deserves to be quashed.

Learned counsel for the appellants vehemently submit that in

the FIR which is filed by Hukum Singh there is no mention about

missing of the ornaments, coins or other articles but later on in

the investigation, statement (Ex.D/2) of Roshni Devi wife of

deceased Sobha Lal were recorded under Section 161 Cr.P.C. in

which it is stated by her that upon inspection of the house, her

ornaments Baju, Bor, Jhumariya, Aguthiya, about 30 tolas in

weight were not found. The cash of more than Rs.1 lac and 60

coins were also missing, but no identification proceeding was

conducted during investigating so as to identify the ornaments.

For the first time in the court, when statement of Roshni Devi

were recorded, the ornaments were shown to the witness Roshni

Devi (PW--19) and identified by her in the Court, therefore, in

absence of any identification proceedings of the ornaments during

investigation or description of ornaments, the prosecution has

failed to prove its case beyond reasonable doubt.

On the basis of above arguments, it is submitted by the

learned counsel for the appellants that in absence of any

proceedings of identification during investigation before any

Officer or Magistrate by the wife of the deceased Smt. Roshni

Devi, it cannot be presumed that prosecution has proved recovery

of ornaments as per information of the accused appellants or to

connect the accused appellants with the crime. The learned

counsel for the appellants vehemently argued that entire finding

of the learned trial court is based upon circumstantial evidence of

recovery of gold ornaments and knife and other articles, but

neither recovery of articles is proved nor the recovery of knife is

proved, therefore, the judgment impugned deserves to be

quashed.

While inviting attention towards the proceedings of dog

squad it is submitted that although the trained dog squad came on

spot but in the proceedings (Ex.p/26) it is nowhere mention that

dogs identified the accused appellants to connect them with the

crime. Likewise footprints were also taken but said evidence has

not proved to connect the accused appellants with the alleged

crime. Therefore, the entire investigation and finding of the

learned trial court based upon the evidence of recovery for which

no identification proceedings were under taken by the Police

deserves to be quashed because prosecution has failed to prove

its case beyond reasonable doubt. Learned counsel for the

appellants in support of their arguments invited our attention

towards the judgment in the case of Rami Vs. State of Rajasthan,

reported in 2009(2) CJ (Cri.) Raj., 667, Mani Vs. State of

Tamilnadu reported in 2008(2) CJ (SC) Cri. 523, Varun Choudhary

Vs. State of Rajasthan reported in 2012(2) CJ (Cri.) (SC) 352,

Sharad Birdhichand Sarda Vs. State of Maharastra reported in

AIR 1984 (SC) 1622, C. Chenga Reddy v. State of A.P . reported in

(1996) 10 SCC 193 and Trimukh Maroti Kirkan vs. State of

Maharashtra reported in (2006) 10 SCC 681.

While inviting attention towards the aforesaid judgments, it

is submitted that the conviction of the accused appellants for

offence under Section 302 / 34 and 460 / 34 IPC is not sustainable in

law because the entire case is based upon circumstantial evidence

of recovery of ornaments and knife, but prosecution has failed to

prove its case beyond reasonable doubt, therefore, the judgment

impugned dated 24.8.2006 may kindly be quashed.

Per contra, learned Public Prosecutor submits that although

in this case there is no eye witness but the accused appellants

were charge-sheeted by the police on the basis of evidence of

recovery of ornaments as well as knife as per information given by

the accused appellants. The witness PW--19 Roshani Devi wife of

the deceased specifically gave description of the ornaments in her

statement recorded under Section 161 Cr.P.C., so also, she

reiterated her statement during trial with regard to identification

of the gold and silver ornaments. The witness PW--19 Roshan

Devi identified the ornaments in the court on oath. Upon all the

recovery memos (Ex.P/9, P/10, P/11, P/12 and P/13) the

witnesses PW--3 Gokal Ram, PW--4 Ram Prasad and PW--5

Bhanwar Singh put their signatures, therefore, even if they turned

hostile, the learned trial court has not committed any error to

accept the statement of the investigating officer and police

officials to give finding that recovery of ornaments has been

proved by the prosecution so as to connect them with the crime

and, therefore, argument of learned counsel for the accused

appellants has no force to disbelieve the finding of learned trial

court whereby accused appellant have been convicted for offence

of murder with dacoity.

Learned Public Prosecutor further submits that it is true that

for conviction upon circumstantial evidence, all the circumstances

are required to be established by reliable evidence and in this

case, the prosecution has proved the recovery of ornaments and

knife beyond doubt at the instance of accused appellants,

therefore, even if there is no eye witness in the case, the finding

of the learned trial court that prosecution has proved its case

beyond reasonable doubt does not require any interference. As

per judgment in case of Sarad Birdhichand (supra) also, no error

has been committed by the learned trial court so as to convict the

accused appellant for the alleged crime. Therefore, the both the

appeals filed by the accused appellants may kindly be dismissed.

After hearing learned counsel for the parties, we have

perused the statement of all the prosecution witnesses, so also,

document exhibited during trial coupled with finding. Admittedly,

there is no eye witness in this case because as per prosecution

story, the day on which the occurrence took place, except

deceased Sobha Lal, nobody was in the house. It is also not in

dispute that neither in the FIR nor any witness gave any evidence

for the presence of the accused appellants even in the village on

the date of occurrence. Meaning thereby, there is no evidence of

last seen or with regard to presence of the accused appellants in

the area concerned or in the house on the date of incident.

To prove the motive, there is no evidence on record even

after perusal of statement of Roshani Devi wife of the deceased

(PW--19). The witness PW--19 Roshani Devi wife of deceased

Sobha Lal specifically stated in her statement that no proceedings

for identification of the ornaments was conducted during

investigation. The learned trial court for the first time, open the

seal of the recovered articles in the court where statement of wife

of the deceased were recorded, in the court. The said witness

stated that these ornaments belongs to her. In our opinion, if no

identification parade was conducted during investigation and this

fact is not in dispute, then obviously it can be presumed that

prosecution has proved the recovery of ornaments and articles

beyond doubt. It is also very important aspect of the matter that

all the witnesses PW--3 Gokul Ram PW--5 Bhanwar Singh and

PW--4 Ram Prasad of the recovery of articles and knife turned

hostile and did not support the prosecution case.

We have perused the information (Ex.P/33) which is said to

be given by the accused appellant Gaffur Mohd on 3.1.2006 at

9.00 pm and in which following facts information was given about

recovery of knife by the accused appellant Gaffur Mohd., which

reads as under:

VERNACULAR MATTER OMITTED

We have perused the recovery memo of knife (Ex.P/10) dated

5.1.2006 at 11.00 pm in which following assertion is made:

VERNACULAR MATTER OMITTED

Upon perusal of the recovery memo (Ex.10) it is obvious that

recovery was made from the accused Ghanshyam whereas

information for recovery of knife was given by the accused Gaffur

Mohd. Therefore, it is obvious that recovery of knife is also grossly

doubtful.

The witness PW--1 Hukum Singh who first reached in front

of house of deceased Sobha Lal has not levelled any allegation

against the accused appellants.

PW--2 Suwa Lal is the witness of proceedings in the house of

deceased where the body of Sobha Lal was lying. Nothing is said

by this witness against the accused appellants which created

doubt.

PW--3 Gokul Ram is the witness of recovery memo of

ornaments and knife (Ex.P/(). The said witness turned hostile and

did not support the prosecution case.

PW--4 Ram Prasad is the witness of recovery memos of

ornaments and articles (Ex.P/10, P/11, P/12 and P/13), but this

witness turned hostile and did not support prosecution case.

PW--5 Bhanwar Singh is also witness of recovery memo

Ex.P/8, P/7 and P/14 but said witness turned hostile and did not

support the prosecution case.

PW--6 Bheru Lal is also witness of recovery of cloths of

deceased Sobha Lal. The said witness turned hostile and did not

support prosecution case.

PW--7 Mod Singh and PW-8 Gopi Lal are the witnesses

before whom accused appellants were arrested vide Ex.P/18, P/18

and P/19 but no allegation is levelled by them.

PW--9 Madan Lal was working as Constable at Police Station

Kareda. It is stated by him that as per direction of SHO, three

sealed packets A,B,C were deposited by him at FSL and receipt of

FSL is no record.

PW--10 Kailash Chandra is the witness who was working in

the SP Office. He prepared the forwarding letter to send articles

to the FSL, Udaipur.

PW--11 Dinesh Chandar is the real brother of the deceased.

Upon perusal fo his statement it is revealed that allegation was

levelled by him against accused appellants.

PW--12 Ram Prasad is the photographer who was called by

the police to take photographs of place of occurrence on

27.12.2005.

PW--13 Suresh Kumar is the neighbor of deceased. Upon

perusal of his statement, it is nowhere alleged by him that

accused appellant were involved in the incident.

PW--14 Dr. Mangi Lal Sharma and PW--21 Dr. Vijay Kumar

Goyal both were members of the board for conducting post

mortem and they supported the post mortem report (Ex.P/24) and

it is submitted by them that in the post mortem report it is

observed that five injuries were caused to the deceased which

resulted into death to the deceased.

PW--15 Sajjan Singh is also residing in the same area where

Sobha Lal was residing. He is supporting the statement of

complainant Hukum Singh with regard to incident, but there is

no wisher against the accused appellants to connect them with the

crime.

PW--16 Ladu Lal is the son of sister-in-law of deceased

Sobha Lal. The said witness came from village Bimali. PW--17

Navratan Singh is the witness of investigation. He is head

constable of Police Station Kareda. PW--18 Dharam Chand is the

real brother of the deceased. Upon perusal of his statement it is

revealed that no allegations are levelled by him against the

accused appellants except the fact that incident took place on

27.12.2005 and upon information received by him he went on

spot.

PW--19 Smt. Roshan is the wife of deceased. The said

witness did not disclose any incident against the accused

appellants or their presence or relation with the deceased. It is

specifically stated by this witness that no identification parade was

conducted during investigation to identify the ornaments and

missing documents and articles. More so, the said witness

specifically stated before the court that:

VERNACULAR MATTER OMITTED

There is no documentary evidence on record to prove the

fact that during investigation identification proceeding was

conducted to identify the recovered ornaments and articles. We

have peruse the statements of PW--26 Bhagwan Singh, Sub-

Inspector, who has conducted the investigation. The said witness

specifically stated before the court in cross-examination that:

VERNACULAR MATTER OMITTED

In view of the above consideration of evidence, it is

perfectly established that there is no evidence on record to prove

that any identification proceeding was conducted after recovery of

ornaments and articles at the instance of the accused appellants

during investigation.

With regard to dog squad proceedings, we have perused the

document (Ex.P/28) in which following proceedings were recorded

after inspection in by the dog squad, which reads as under:

VERNACULAR MATTER OMITTED

Likewise for the evidence of foot mould there is no evidence

on record to prove the fact that prosecution has led any evidence

to connect the accused appellants with the crime on the basis of

foot identification.

43 In view of the above, the entire prosecution case based upon

circumstantial evidence of recovery of ornaments and articles and

knife has not been proved by the prosecution beyond reasonable

doubt.

In case of Mani Vs. State of Tamilnadu (supra), the Hon''ble

Supreme Court held that evidentiary value of recovery is a weak

kind of evidence and that cannot be relied upon so as to hold

accused appellants guilty. The para no.21 of the said judgment is

as follows:

"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution

never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go.

In case of Rami Vs. State of Rajasthan (supra) the following

adjudication is made by this Corut that on the basis of recovery of

ornament of deceased without any identification, the conviction

cannot be based. Paras nos.10 to 14 of the said judgment are

relevant, which reads as under:

"10. These opinion clearly indicate that dead body cannot float on surface at least before 24 hours. It is beyond imagination that dead body of 5 years? girl will float on surface within an hour of drowning. This alone circumstances is sufficient to discard whole prosecution story. 11. Thus, it becomes clear that Munna was not pushed by the accused on 18.8.1981 at about 8 a.m. and in such circumstances, it can very well be said that Paras was also not pushed in the well by the accused on that day at that time. Whole prosecution story is nothing but full of concoctions. 12. As far recovery of ornaments and their identification is concerned, the learned Trial Court has rightly not placed reliance on recovery of articles. PW/2 Roshan has admitted in his cross examination that Sarpanch asked Madhunath to take care of recovered ornaments. He admitted that he had knowledge where the ornaments were lying before the SHO came on the spot. PW/9 Sajjan Singh who was Sarpanch of

village karsana has also admitted in cross examination that he was aware about the ornaments before police reached on the spot and he had deputed Madhunath to take care of ornaments. Identification memo also reveals that requisite articles were not mixed for identification purposes. Hence, recovery of articles on the information and at the instance of accused and their identification cannot be believed and this recovery does not link the accused with the crime, specially when recovered articles contained some more articles which were not of Paras. 13. In the light of the aforesaid discussion, it becomes clear that prosecution has failed to prove charges against accused and lower court has committed error in placing reliance on the statement of Paras and convicting the accused of the aforesaid charges. 14. Consequently, the appeal of the appellant Rami is accepted and judgment dated 18.8.1983 passed by learned Sessions Judge Pratapgarh camp Chittorgarh, by which he convicted the accused appellant under Sec. 302, 307 and 403 IPC is set aside. The accused appellant is on bail. Her bail bond stands cancelled and she need not to surrender. "

Similarly, in the case of Varun Choudhary Vs. State of

Rajasthan (supra), the Hon''ble Supreme Court while considering

evidence to hold that in absence of any evidence of identification

and upon the fact that prosecution has failed to establish the

evidence to complete the evidence which would lead to a

conclusion that accused was the only person who could have

commit offence none-else, no conviction can be based. Paras

nos.21, 24 and 25 of the said judgment are relevant, which reads

as under:

"(21) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution.

Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown

to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction.

(24) It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath vs. State of Karnataka, (2010)8 SCC 593, para 24, it has been stated that

"in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved............. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".

(25) In another case of C. Chenga Reddy v. State of A.P ., reported in (1996) 10 SCC 193, this Court has held that

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In case of Ram Lal @ Ramu Vs. State of Rajasthan reported

in 2014 Law Suit (Raj.) 1398 in identical case based upon

circumstantial evidence, following adjudication was made by this

Court, which reads as under:

"18. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of the legal proof. There is a long distance between ?may be true? and ?must be true?. When a case rests squarely on circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words 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 it must show that in all human probabilities the act must have been done by the accused.

In view of the above discussion, we are of the opinion that

the finding of conviction arrived at by the learned trial court

against the accused appellants is not sustainable in law because

prosecution has failed to prove its case beyond reasonable doubt

on the basis of so called evidence of recovery for which all

witnesses turned hostile and no identification parade was

conducted during investigation and ornaments and articles were

brought before the witness PW--19 Smt.Roshani Devi for the first

time when her statement were recorded in the court during trial.

Consequently, both the cr. appeal are allowed. The

judgment dated 24.8.2006 passed by the learned Addl.

Sessions Judge (FT) No.1, Bhilwara in Sessions Case

NO.34/2006 convicting and sentencing the accused

appellants for the offences under Section 302 / 34 and 460 / 34

IPC is hereby quashed. The accused appellants be set at

liberty unless required in any other case.

Keeping in view, however, the provisions of Section

437A Cr.P.C. the accused appellants are directed to forthwith

furnish personal bonds in the sum of Rs.20,000/- each 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 Special Leave Petition

against the judgment or for grant of leave, the appellants, on

receipt of notice thereof, shall appear before Hon''ble the

Supreme Court.