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Judgment
This criminal appeal has been filed under Section 374(2) of
Cr.P.C. against the judgment of conviction and order of sentence
dated 13-12-2013 passed by the learned Additional Sessions
Judge No. 4, Ajmer in Sessions Case No. 81/2012, whereby the
accused-appellants have been convicted under Section 302 of IPC
and have been sentenced for life imprisonment with fine of Rs.
1,000/- each and in default of payment of fine to further undergo
one month''s simple imprisonment.
Prosecution story in brief is that on 06-11-2011, Gopi Singh
Rawat (PW-3), former Sarpanch of Tilora informed by telephone to
SHO, Pushkar that a dead body pool in blood, is lying on the
Kachcha way from Tilora to Dev Nagar. Then SHO, Pushkar rushed
to the spot, where Gopi Singh submitted a written report Ex.P-4 to
him stating therein that today on 06-11-2011 at 7.30 AM, he was
going to his field from his village. On the way, he saw a dead body
of a young man, near the bank of the river, which was pool in
blood and there were scars caused by sharp edged weapon on his
face. Thereafter, he informed to Police Station by telephone. Many
people assembled on the spot, who told that the dead body is of
Laxman S/o Ramchandra R/o Dev Nagar. Possibly unknown
culprits have committed murder of Laxman. Report is submitted
for legal action.
On basis of above written report, FIR No. 182/2011 was
registered at Police Station, Pushkar District Ajmer for offence
under Section 302 of IPC and investigation commenced.
After completion of investigation, the police filed charge-
sheet against accused-appellants for offence under Section 302,
34 of IPC in the Court of Judicial Magistrate, Pushkar District
Ajmer, from where the case was committed to the Court of Sessions Judge, Ajmer and thereafter, the case was transferred to
the Court of Additional Sessions Judge No. 4, Ajmer.
Learned trial court framed charges for offence under Section
302 in alternative 302/34 of IPC against the accused-appellants
brought before it for trial. Charges were read over and explained
to the accused-appellants, who pleaded not guilty and sought to
be tried.
In order to support it''s case, the prosecution examined 26
witnesses and exhibited 75 documents. Thereafter, learned trial
court put oral evidence of the prosecution witnesses and
documentary evidence produced by the prosecution to the
accused-appellants under Section 313 of Cr.P.C. In reply to the
prosecution evidence, the accused-appellants stated that they did
not give any information to the police and their signatures were
obtained under intimidation. It is also stated that culprit may be
Om, who gave false evidence under directions of Investigation
Officer. It is further stated that they are innocent and have been
falsely implicated, no recovery was made at their instance and
they did not confirm the scene of occurrence. In defence, they did
not produce any witness and the appellants got exhibited
statements of four witnesses recorded by the police. After
completion of trial, the learned trial court convicted the accused-
appellants for the offence under Section 302 of IPC and sentenced
them as indicated hereinabove.
Being aggrieved with the judgment of conviction and order of
sentence awarded to the accused-appellants, they preferred the
present appeal before this court against the judgment of learned trial court dated 13-12-2013.
Mr. Ravi Kasliwal, learned counsel for the accused-appellants
submitted that the entire prosecution case is based on
circumstantial evidence. The prosecution found three
circumstances against the accused-appellants in connection with
the crime, which are:-
Last seen with the deceased;
Recovery of blood stained shirts of the appellants; and
Recovery of axe and motorcycle from the appellant Kalu Ram and driving licence of the deceased from the appellant Suraj Nath.
Learned counsel also submitted that the prosecution could
not prove any circumstance against the appellants, even then the
learned trial court convicted and sentenced the appellants in an
arbitrary manner. Learned counsel also submitted that the
prosecution has come out with a case that the appellants have
been last seen in the company of the deceased at about 9-10 PM
on 05-11-2011, but the prosecution could not prove the fact that
from 10:00 PM till 7:00 AM next day, when dead body was found,
the appellants remained in the company of the deceased, as such
the prosecution has failed to prove the fact that the accused-
appellants are the only person who committed the murder.
Learned counsel also submitted that it was duty of the prosecution
to prove that in close proximity of time of the death, the deceased
was in the company of the appellants. Learned counsel for the
appellants further submitted that the investigation of the case was
not fair and the appellants have been implicated by the
Investigation Officer with ulterior motive.
Learned counsel for the appellants also submitted that the
second circumstance taken into consideration by the learned trial
court is recovery of blood stained shirts from the appellants. The
prosecution could not prove the fact that the blood group of the
deceased matched with the blood found on the clothes of the
accused-appellants, therefore, no reliance can be placed on such
circumstance. Learned counsel also submitted that the motorcycle
which has been recovered from the accused-appellant Kalu Ram is
such a vehicle which is widely available and is being used by lacs
of people in the country, therefore, matching of moulds taken
from the place of occurrence with the tyre of the motorcycle
recovered from the appellant Kalu Ram, is of no consequence, as
such, no reliance can be placed on such circumstance.
Learned counsel for the appellants further submitted that the
prosecution has failed to prove the motive in the present case.
The Investigation Officer has recovered driving licence of the
deceased from the appellant Suraj Nath. There was no occasion
for the appellant Suraj Nath for keeping the driving licence of the
deceased with him after committing the murder. The Investigation
Agency has not collected the evidence but created evidences to
show their investigation as successful.
Learned counsel for the appellants further submitted that the
learned trial court has committed error while convicting the
appellants on the testimony of interested witnesses. There are
material contradictions in the statements of the prosecution
witnesses, as such, no reliance can be placed on such statements,
therefore, the conviction is against the criminal jurisprudence and prayed to accept the appeal, setting aside the impugned judgment
of conviction and order of sentence and to acquit the appellants
for the charges levelled against them.
Per contra, Mr. N.S. Shekhawat, learned Public Prosecutor
has supported the impugned judgment and submitted that the
learned trial court has rightly convicted the accused-appellants on
the basis of cogent and reliable evidence, which prove their guilt
beyond reasonable doubt. Learned Public Prosecutor also
contended that the accused-appellants can be convicted only on
last seen theory because the time gap between the point of time
when the appellants and the deceased were seen last alive and
when the deceased Laxman was found dead, is so small that
possibility of any person other than the accused persons, being
the author of the crime, become impossible. The prosecution has
proved the offence against the accused-appellants beyond
reasonable doubt and prayed to dismiss the appeal being devoid
of substance.
We have given our anxious considerations to the rival
submissions of learned counsel for the accused-appellants and
learned Public Prosecutor for the State and perused the material
on record.
Dinesh Kumar (PW-26) the then SHO, Pushkar has stated
that he received an information on 06-11-2011 at 7:35 AM on
telephone from Gopi Singh Rawat, former Sarpanch of Tilora, that
a dead body of a young man is lying on the way from Tilora to Dev
Nagar. On receiving the information, he rushed to the place of
occurrence with police force and photographer, where Gopi Singh Rawat (PW-3) met him. On right side of the way from Tilora to
Dev Nagar, he saw a dead body of a young man and there were
scars on the body of the deceased. Gopi Singh (PW-3) submitted a
written report Ex.P-4, whereupon he made his endorsement and
sent the same to the Police Station for registration of case. The
investigation was handed over to him. He prepared memo of
condition of place of occurrence and dead body Ex.P-1 and took
the dead body to the hospital. He prepared Panchayatnama Ex.P-2
and thereafter, gave a letter for post mortem of the deceased.
Gopi Singh (PW-3) the complainant has stated that on 06-
11-2011 at about 7:00-7:30 AM, while he was going to his field,
on the way from Tilora to Dev Nagar, he saw a dead body near the
bank of the river which was pool in blood and there were scars on
his face and head. Age of the deceased appears to be about 22-25
years. Police came there. On the spot, there were marks of tyre of
a motorcycle. Blood and hair were lying there. Many people
assembled, who told that it was the dead body of Laxman Gurjar
of Dev Nagar. He submitted a written report Ex.P-4 which is
signed by him. Thereafter, the police took the dead body to the
hospital. The witness proved his signatures on written report Ex.P-
4, Panchayatnama of dead body Ex.P-2, site plan Ex.P-5 and
memo of condition of place of occurrence and dead body Ex.P-1.
Pooran Singh (PW-1) has stated that on 06-11-2011, after
hearing buzz, he went to the spot, which is lying on the way from
Tilora to Dev Nagar. He saw a dead body lying near the road.
There were scars caused by sharp edged weapon on face and
head of the dead body. Police prepared memo Ex.P-1. The witness proved his signatures on the memo Ex.P-1.
Mohan (PW-2) gave evidence regarding Panchayatnama
Ex.P-2 and memo of handing over dead body Ex.P-3 and proved
his signatures thereon.
Bhagchand (PW-5), who is brother of the deceased Laxman,
has stated that on receiving information about the death of his
brother Laxman, he went to the hospital and he saw scars caused
by sharp edged weapon on the head and near neck of his brother
Laxman. The witness proved his signatures on Panchayatnama
Ex.P-2 and memo of handing over dead body Ex.P-3.
Dr. Bhagwati Prasad Sharma (PW-13) performed autopsy on
the corpse of the deceased Laxman on 06-11-2011 in Government
Hospital, Pushkar as member of Medical Board and prepared post-
mortem report Ex.P-17.
From conjoint reading of statement of Dr. Bhagwati Prasad
Sharma (PW-13), post-mortem report (Ex.P-17), memo of
condition of place of occurrence and inspection of dead body Ex.P-
1 and Panchayatnama Ex.P-2, it reveals that on examination of
dead body of Laxman, Dr. Bhagwati Prasad Sharma (PW-13) and
other members of Medical Board found multiple incised wound
approximately 25 to 30 in No., of size 10cm X 4cm X bone &
muscle deep all over skull, face and neck at places and varying
2cm X 1cm X muscle and bone deep. Wounds were involving most
of the part of Lt. half of face & Rt. half of the face. The articulars
of Lt. ear and Rt. eye completely destroyed. Injuries were
involving Rt. half of neck & Lt. half neck also. Injuries present on
Lt. parietal & Lt. temporal & occipital region. Bony injury present
at Lt. chin & part of mandible. All above injuries were ante-
mortem in nature. In the opinion of members of the Medical
Board, the cause of death was haemorrhagic shock brought about
as a result of combined effect of multiple ante-mortem injuries to
skull, face & neck as mentioned in the post-mortem report and are
sufficient to cause death in ordinary course of nature. The autopsy
was performed on 06-11-2011 at 11:00 AM. In opinion of
members of the Medical Board, the death took place 4 to 12 hours
prior to post-mortem examination. Therefore, it is proved that it is
a homicidal death.
The case of prosecution is based on following
circumstances:-
A. Motive;
B. Recovery of blood stained shirts of the appellants;
C. Recovery of axe and motorcycle from the appellant Kalu Ram and Driving Licence of the deceased from the appellant Suraj Nath; and
D. Last seen with the deceased.
A. Motive:-
The prosecution has come out with two motives. One is,
money transaction between the deceased and accused-appellants
Mukesh & Suraj Nath. Second is, that the accused-appellant Kalu
Ram doubted that the deceased was responsible for murder of his
brother. In this respect, Bhagchand (PW-5) who is brother of the
deceased Laxman, has stated that Suraj Nath, Mukesh & Kalu had
money transactions with Laxman (the deceased). He also stated
that Kalu doubted that the deceased was responsible for murder of
his brother Gajraj. In cross-examination, the witness admitted
that there is no document on record regarding money transactions
between Laxman (the deceased) and Suraj Nath (the appellant).
The witness also admitted that he did not give any document to
the police regarding money transactions between Laxman and
Mukesh (the accused).
Jagdish (PW-18) has corroborated the evidence given by
Bhagchand (PW-5). In cross-examination, the witness stated that
there was no enmity between Laxman and Kalu (the appellant).
The witness also admitted that he never saw any document
showing that Mukesh borrowed money from Laxman. He also
stated that Laxman never told him that Mukesh borrowed money
from him. The witness also admitted that he has no certificate or
document to show that Mukesh is debtor of Laxman. The witness
also admitted that there was friendship between Laxman and
Mukesh.
In cross-examination, Investigation Officer Dinesh Kumar
(PW-26) has stated that Kalu Gurjar doubted that the deceased
Laxman Gurjar is responsible for murder of his brother and
therefore, Kalu was having enmity with Laxman, in his heart. The
witness also admitted that no such fact came in investigation
indicating that Laxman was carrying business of money lending
but it has come in investigation that he lent money to the accused
Kalu.
From analyzing the above evidence, it is no where proved
that any money transaction took place between deceased, Laxman
and the accused-appellants. Further, there is not even a tangible
evidence placed by the prosecution to prove that the deceased
Laxman was involved in the murder of appellant Kalu''s brother.
Resultantly, the prosecution has failed to prove the motive in
support of it''s case.
B. Recovery of blood stained shirts of the appellants:-
The accused-appellants were arrested on 07-11-2011, which
fact is not disputed by the accused-appellants also. According to
the prosecution, on 12-11-2011, accused-appellant Kalu Ram gave
an information Ex.P-62 under Section 27 of the Evidence Act, with
regard to the shirt which he was wearing at the time of the
incident, and in consequence of the information, police recovered
a blood stained shirt from his house and seized vide Ex.P-23. A
site plan of place of recovery of shirt Ex.P-25 was also prepared.
Similarly, on 13-11-2011, the accused-appellant Mukesh
gave an information Ex.P-64 under Section 27 of the Evidence Act,
with regard to the shirt, which he was wearing at the time of the
incident. In consequence of the information, the police seized a
blood stained shirt of the appellant Mukesh from his house vide
Ex.P-12. Site plan of place of recovery of shirt Ex.P-13, was also
prepared.
Similarly, on 13-11-2011, the accused-appellant Suraj Nath
gave an information Ex.P-65 under Section 27 of the Evidence Act,
with regard to the shirt, which he was wearing at the time of the
incident. In consequence of the information, the police seized a
blood stained shirt of Suraj Nath from his house vide Ex.P18A and
site plan of place of recovery of shirt Ex.P-20 was also prepared.
From above evidence, it is proved that the accused-
appellants were arrested on 07-11-2011. After arrest, the police
seized shirts of the accused-appellants from their respective
houses and were sealed at the place of recovery. This fact has not
been disputed by the accused-appellants also, though they said
that they did not give any information to the police and their
signatures on memos of the alleged informations, were obtained
under intimidation.
According to the prosecution, seized shirts of the accused-
appellants, clothes of the deceased, samples of blood stained and
control soil lifted from the place of occurrence, axe seized from
the house of the accused-Kalu were sent to Forensic Science
Laboratory (FSL) vide Ex.P-31 for examination and to give opinion
that whether the blood found on articles is of human being and if
so, of which group? Prosecution has marked the report of Forensic
Science Laboratory (FSL) as Ex.P-75. According to FSL report
Ex.P-75, origin of blood found on the articles is of human being
but the blood grouping is inconclusive on all articles, except on
Article-P which is the shirt of accused Suraj Nath. According to
Ex.P-75, origin of blood found on the shirt of the accused-
appellant Suraj Nath is of human and grouping is "B". Blood stains
found on the shirts of the appellants does not lead to any
conclusion that the blood stains were those of the accused.
It is, therefore, quite possible that the blood stains on the
clothes of the accused were his own blood stains and according to
FSL report Ex.P-75, grouping of the blood is inconclusive, which
was found on the clothes of the deceased, blood smeared soil and
stone lifted from the place of occurrence, axe seized from the
accused Kalu Ram and shirts of accused Kalu Ram and Mukesh @
Daglu.
The prosecution could not prove the fact that the blood
group of the deceased, matched with the blood found on the
clothes of the accused-appellants. As such, the circumstance of
recovery of blood stained shirts from the appellants, cannot be
made basis to uphold conviction of the appellants.
C. Recovery of axe, motorcycle and driving licence of the
deceased:-
(a). Recovery of an-axe from the appellant Kalu Ram:-
According to Investigation Officer Dinesh Kumar (PW-26), he
arrested the accused Kalu Ram on 07-11-2011 and during
custody, accused Kalu Ram gave him an information Ex.P-58, with
regard to the axe. In consequence of the information, he went
with Kalu to his house, where from Kalu got recovered an axe vide
Ex.P-21 in presence of the witness and the site plan of place of
recovery Ex.P-22 was also prepared. Rampal (PW-15) and Jagdish
(PW-18) also gave similar statement with regard to the seizure of
an axe from the house of the accused Kalu Ram. As discussed
above, the said axe was also sent to Forensic Science Laboratory
(FSL) vide letter Ex.P-31 to find out origin and group of the blood,
found on the axe, but the blood group is inconclusive.
In cross-examination, Om (PW-9) has stated that he has
been kept in police station for 7 days and in the police station, two
axes have been shown to him in evening on 06-11-2011, which
were not blood stained. From such statement of the witness, it
transpires that the investigation of the case was not fair, as such
no reliance can be placed on this circumstance.
(b). Recovery of Motorcycle from the appellant Kalu
Ram:-
Investigation Officer, Dinesh Kumar (PW-26) deposed that
during police custody, accused Kalu Ram gave him an information
on 12-11-2011 vide Ex.P-63, with regard to motorcycle used in
commission of the offence. He went with Kalu Ram to his house.
Kalu Ram got recovered a motorcycle. He got it''s rear wheel
separated from the motorcycle, to be sent for examination. He
seized motorcycle and it''s rear wheel vide seizure memo Ex.P-24
and prepared a site plan of place of recovery.
Nathu (PW-16) and Jagdish (PW-18) also gave a similar
statement with regard to the seizure of motorcycle and proved
their thumb impression and signature respectively, on seizure
memo and site plan of place of recovery.
According to the prosecution, Investigation Officer found
impressions of tyre of motorcycle on the place of occurrence,
therefore, moulds of tyre tread impressions were prepared and
sealed on 06-11-2011. Sealed mould and rear wheel of motorcycle
with tyre, were sent to Forensic Science Laboratory (FSL) for
examination. According to Forensic Science Laboratory report
Ex.P-74, tyre tread impression reproduced in the mould is similar
to the tyre tread design and dimension of the tyre, sent for
examination. It is pertinent to mention that the motorcycle which
has been recovered from the appellant Kalu Ram is such a vehicle
which is easily available in the market and the same is being used
by lacs of people in the country. The circumstance is not
supportive to the case of prosecution.
(c). Recovery of driving licence of the deceased from
the appellant Suraj Nath:-
Investigation Officer, Dinesh Kumar (PW-26) has deposed
that during custody, the accused-appellant Suraj Nath gave him
an information vide Ex.P-66, with regard to the driving licence of
the deceased Laxman. In consequence of the information, he went
with the appellant Suraj Nath to his house on 13-11-2011, where
Suraj Nath took out a driving licence from a box and produced
before him, which was seized vide memo Ex.P-19 and site plan of
place of recovery Ex.P-20 was also prepared.
Ex.P-19 is a seizure memo of coloured photostate copy of
driving licence of the deceased Laxman Gurjar. The prosecution
did not explain as to how the copy of driving licence of the
deceased came to the appellant Suraj Nath.
It is pertinent to mention that on making search of the body
of the deceased, a pocket diary was recovered from the pocket of
pant of the deceased and was seized vide Ex.P-11 on 06-11-2011.
Name of the deceased was written on first page of the diary. This
circumstance shows that the appellant Suraj Nath did not take out
copy of the driving licence, from the pocket of the deceased with
intention to hide the identity of the deceased. Therefore, there is
no occasion for the appellant Suraj Nath for keeping the copy of
driving licence of the deceased with him after committing the
crime as alleged. As such no reliance can be placed on this
circumstance.
D. Last seen with the deceased:-
The prosecution has come out with the case that the
deceased Laxman was last seen alive in the company of the
accused-appellants on 05-11-2011 at about 10:00 PM on the way
from Bansli to Dev Nagar, and on the next day at about 7:30 AM,
his dead body pool in blood was found near the Kachcha way from
Tilora to Dev Nagar. To prove this circumstance, the prosecution
has examined Bhagchand (PW-5), Sanwara (PW-7), Sunil (PW-8),
Om (PW-9) and Jagdish (PW-18).
Bhagchand (PW-5) is real brother of the deceased Laxman,
who deposed that in morning on 06-11-2011, wife of his younger
brother Laxman came to him and said that in night, Laxman did
not return to home. Thereafter, he searched him in the village.
After some time, he received a phone call from Sarpanch of Tilora,
who said that dead body of his brother Laxman is lying on Tiraha
(three way) and which has been taken to hospital. Thus, he went
to the hospital. The witness also deposed that during funeral of
the deceased, Sunil (PW-8) told him that between 7:00 to 9:00
PM on 05-11-2011, Laxman, Om Prakash, Kalu, Suraj Nath,
Mukesh and Om Rawat were consuming liquor near the water
tank. Thereafter, Kishan Singh also told him that Laxman, Mukesh
and Suraj Nath came for liquor at about 9-9:30 PM. The witness
Bhagchand (PW-5) did not see the deceased Laxman in the
company of the accused-appellants on 05-11-2011 and he gave
only hearsay evidence, therefore, he is only a hearsay witness.
Sanwara (PW-7) did not support the prosecution case and
was declared hostile.
Sunil (PW-8) is a shopkeeper and having his shop near the
school and water tank in village Dev Nagar. This witness did not
support the prosecution case and turned hostile.
Om (PW-9) deposed that he and Laxman (the deceased)
went in mela (fair) and returned to their village at about 6:00 PM
and were sitting in front of the shop of Sindhi (PW-8 Sunil).
Thereafter, Sanwara (PW-7) came with liquor and they started
taking liquor. Meanwhile, Suraj, Kalu and Mukesh came to them on
a motorcycle. Laxman demanded outstanding money from
Mukesh. Mukesh said that he is not having money. Thereafter,
Mukesh took Rs.100/- on credit from Kalu and brought a quarter
of liquor. Thereafter, Mukesh, Sanwara, Laxman, Kalu and the
witness himself consumed liquor. Thereafter, Kalu left Sanwara
(PW-7) to his house and told to the witness, Om (PW-9) to go to
home. Kalu also told that we Mukesh, Suraj, Laxman etc. will take
liquor more. It was 9:00 PM and then he left the place. In morning
of next day at about 7-7:30 AM, he heard about the murder of
Laxman. In cross-examination, the witness stated that initially he
told to the police that he does not know anything. When police
inquired about the case of Kalu, then he admitted. The witness
also stated that he has been kept in police station for 7 days
because police was suspecting him to be the culprit. Thereafter, he
was left, when he became ready to become a witness. The said
statement of the witness has not only shaken his credibility but
made his conduct doubtful also.
Jagdish (PW-18) has deposed that on 05-11-2011 at about
10:00 PM, he last saw Laxman with Kalu, Mukesh and Suraj Nath
on the way from Bansli to Dev Nagar, when the witness was going
to his house. All were drunk there. The witness also stated that on
06-11-2011, he heard about murder of Laxman. In cross-
examination the witness stated that he was present in funeral of
Laxman. He reached to the mortuary at 9:00 AM, where
Bhagchand (PW-5) and hundreds of person of the village were
present. On that day, he did not tell to Bhagchand or any person
of the village about taking liquor by the deceased and accused
persons together in foregoing night. In mortuary, he did not tell,
even to the police about taking liquor. The witness also admitted
that Laxman (the deceased) and Bhagchand (PW-5) are his
relatives. The witness also stated that after receiving information
of murder of Laxman, he did not tell to his wife or members of his
family, about taking liquor by Laxman in night.
There is no explanation as to why the witness did not
disclose the fact of the deceased Laxman taking liquor in night of
05-11-2011 with the accused-appellants, either to police or to
brother of the deceased, Bhagchand (PW-5) or to any person of
his village or to his wife and family members, though he received
information in morning hours of 06-11-2011 about murder of
Laxman and more perticularly, when the witness is relative of the
deceased Laxman. According to witness, he drives motorcycle at
the speed of 40-50 Kmph. The witness also stated that there was
no electric pole where the deceased and the accused persons were
last seen together and they were consuming liquor.
The witness further stated that he did not stop there. It
creates doubt on the veracity of the witness that he identified the
persons sitting on the road and taking liquor, while he was driving
motorcycle in the night at the speed of 40-50 Kmph. The
deposition of the witness in cross-examination makes his conduct
doubtful. Therefore, it is not safe to rely on the deposition of
Jagdish (PW-18) without further corroboration.
In addition to above, it is pertinent to take note of the
following circumstances also:-
A. The prosecution has come out with the case that the
deceased Laxman was last seen alive in the company of the
appellants in the night of 05-11-2011, on the way from
Bansli to Dev Nagar, and where they consumed liquor
together. But the Investigation Officer did not prepare site
plan of that place. According to Om (PW-9), in that night,
five quarters of liquor were consumed. If the site plan of the
place would have been prepared, where the deceased was
last seen alive in the company of the appellants and they
consumed five quarters of liquor, this circumstance would
have strengthened the case of the prosecution. There is no
explanation from the prosecution, as to why the site plan of
place of last seen, was not prepared.
B. According to Jagdish (PW-18), axes are oftenly found in
every house in the village, similar to the axe which has been
recovered in this case. Om (PW-9) stated in cross-
examination that he was kept in police station for seven
days from the evening of 06-11-2011 and he was shown
two axes, which were not blood stained. The appellant Kalu
denied having given any information to the police under
Section 27 of the Evidence Act with regard to the recovery
of axe. The said circumstances if taken together, also
creates doubt on fairness of the investigation.
C. The prosecution has examined four witnesses i.e., Sanwara
(PW-7), Sunil (PW-8), Om (PW-9) and Jagdish (PW-18)
regarding the circumstance of last seen, but there is no
evidence that the appellants or any one of them was having
any weapon at that time. The prosecution has not explained
as to how, when and from where the axe, alleged to be used
in commission of murder of the deceased, came to the
appellants.
These facts lead to the conclusion that the Investigation
Officer did not carry out the investigation thoroughly and there are
serious lapses in the investigation, which creates doubt on the
fairness of the investigation.
The entire prosecution story, revolves around the statement
of Om (PW-9) & Jagdish (PW-18) whose statements for the
reasons mentioned above are not of sterling worth, therefore, the
last seen story purported by Om (PW-9) & Jagdish (PW-18) is not
convincing in the ordinary course of nature.
It is necessary that all chains of circumstances must be connected together and speaks only one answer that it is the accused persons only, who are responsible for the incident.
Hon''ble the Apex Court in the case of Vijay Shankar vs.
State of Haryana reported in (2015) 12 SCC 644 (supra), has
also held that a normal principle is that in a case based on
circumstantial evidence the circumstances from which an inference
of guilt is sought to be drawn must be established cogently and
firmly; that these circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; that the
circumstances taken cumulatively should form the chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused
and he should be incapable of explanation of any hypothesis other
than that of the guilt of the accused and inconsistent with his
innocence.
This is settled law that before a case against an accused resting on circumstantial evidence can be said to be fully established, only when the following conditions are fulfilled:-
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) The facts so established should be consistent with the hypothesis of 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; and. (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.
A critical and holistic analysis of the evidence produced by
the prosecution reveals that the prosecution has failed to travel
the distance between "may be true" and "must be true".
Although the prosecution has produced certain evidences but the
circumstances relied upon by the prosecution have failed to
establish by convincing evidence which may connect the
accused-appellants with the commission of the crime. Therefore
it can be concluded that the prosecution has failed to prove the
guilt of the accused-appellants beyond reasonable doubt and
therefore, benefit of doubt is to be given to the
accused/appellants.
In the result, the appeal filed by the accused-appellant Kalu
Ram Gurjar, Mukesh @ Daglu Gurjar & Suraj Nath, is allowed.
Impugned judgment dated 13-12-2013 passed by Additional
Sessions Judge No. 4, Ajmer in Sessions Case No. 81/2012 is set
aside. Conviction and sentence of accused-appellants for offence
under Section 302 of IPC is also set aside. They are acquitted of
the charge lavelled against them. They are in Jail and be set at
liberty forthwith, if not required to be detained in any other case.
Keeping, however, in view the provisions of Section 437-A
of the Code of Criminal Procedure, the appellants, namely, Kalu
Ram Gurjar, Mukesh @ Daglu & Suraj Nath are directed to
forthwith furnish personal bonds in the sum of Rs. 50,000/- and
two surety bonds of Rs. 25,000/- each, before the Deputy
Registrar (Judl.) of this Court, which shall be effective for a
period of six months, undertaking that in the event of Special
Leave Petition being filed against this judgment or on grant of
leave, he, on receipt of notice thereof, shall appear before the
Supreme Court.