Mahendra Kalara vs State Of Rajasthan

Appellant had faced trial in FIR No. 280 dated 23.12.2012 registered at Police Station Nahargarh, Jaipur (North) under Sections 279 and 304-A of

Indian Penal Code, 1860. FIR was got registered by complainant Pradeep Kumar Pareek stating therein, that on 23.12.2012, Dheeraj Pareek had gone

to the market in vehicle bearing Registration No. RJ-14-4C-2765. He received a phone call that Dheeraj Pareek was lying in an injured condition at

Barah Bhaiyon Ka Chauraha and had been removed to SMS Hospital by police of Police Station Nahargarh, Jaipur. Doctors had declared him dead.

Car as well as phone bearing No. 9352144448 of the deceased were missing. Deceased was also carrying cash to the tune of Rs. 70,000/-.

On investigation, offences under Sections 394 and 302 IPC were added and challan was presented against the appellant under Section 302 and 394

IPC.

Charges were framed against the appellant under Sections 302 and 394 IPC.

Appellant did not plead guilty to the charges framed against him and claimed trial.

In order to prove its case, prosecution examined thirty-six witnesses during trial. Appellant when examined under Section 313 Code of Criminal

Procedure, 1973, after close of prosecution evidence, denied the evidence brought on record against him and did not lead any evidence in his defence.

Learned trial court vide impugned judgment/order dated 7.2.2018 ordered conviction and sentence of the appellant under Section 302 and 394 IPC.

Hence, the present appeal by the appellant.

Learned counsel for the appellant has submitted that the case rests on circumstantial evidence. Prosecution had been unsuccessful in completing

the chain of circumstances leading towards the guilt of the appellant. In-fact, there was no evidence of deceased having been last seen in the

company of the appellant. None of the witnesses have stated that deceased had gone with the appellant. There was also no material on record as to

how appellant came in possession of the car allegedly belonging to the deceased, which had been recovered from the appellant during the course of

investigation. The said recovery had been falsely planted on the appellant.

In-fact, no recovery was effected from the appellant. There was no material on record to establish that mobile phone recovered from the appellant at

the time of his arrest was owned by the deceased.

Learned State Counsel has opposed the appeal and has submitted that the Car of the deceased was recovered at the instance of the appellant. As

per the report of Forensic Science Laboratory, the blood stains lifted from the car were having blood group 'O' and matched with the blood group of

the blood stains found on the clothes of the deceased.

Present case relates to murder of Dheeraj Pareek. Case rests on circumstantial evidence.

It has been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. (MANU/SC/0018/1990 : AIR 1990

SC 79), as under:-

........ This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the

following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, 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; and

(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 and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See

Gambhir v. State of Maharashtra).

It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh MANU/SC/0162/2012 : AIR 2012

Supreme Court 1552, a under:-

There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled

principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The

circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e.

the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as

not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of

the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should

be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the 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 or the guilt of any other person.

Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must

be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain

of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been

proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that

the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.

Lets examine the circumstances brought on record by the prosecution to come to a conclusion as to whether prosecution has been successful in

completing the chain of circumstances leading towards the guilt of the appellant.

Complainant Pradeep Kumar Pareek while appearing in the witness box as P.W.1 deposed that on 22.12.2012, he received a phone call that his

brother-in-law Dheeraj Pareek had died. When he reached the spot, it appeared that it was a case of an accident but no vehicle was lying there. His

brother-in-law was having a car bearing Registration No. RJ-14-4C-2765. His brother-in-law had been taken from his home by Yashpal Kalara, Prem

Pareek, Ravindra Pareek, Rajesh Sharma. At that time, his brother-in-law was carrying Rs. 70,000/- in cash with him. The above mentioned persons

had taken away the mobile phone of the deceased as well as Rs. 70,000/-. Elder daughter of the deceased had performed love marriage with Naresh

Jaiswal. The girl was being harassed by her in-laws and they used to give beatings to her. Girl had left her matrimonial home and was staying in the

house of Yashpal Kalara. Dheeraj Pareek had been murdered by Yashpal Kalara, Prem Pareek, Naresh Jaiswal, Rajesh Sharma and other friends.

Mahendra Kalara was not accompanying them. He had suspicion that Mahendra Kalara could also be involved in the murder. The deceased was

maintaining phone No. 9352144448. The said witness in his cross-examination deposed that he did not know Mahendra Kalara. He also deposed that

he did not know the details of manufacturer company of the mobile phone of the deceased. Police had taken in possession mobile phone of Mahendra

Kalara manufactured by Samsung company.

Thus, so far as complainant is concerned, he has named the appellant on the basis of suspicion. He has also deposed that the deceased had not left

his home with the appellant. He also stated in his cross-examination that the mobile phone of the appellant manufactured by Samsung company was

recovered from him. He has also not specifically deposed that the deceased had left the house in his car bearing No. RJ-14-4C-2765. Thus, the

testimony of Pradeep Kumar Pareek P.W.1 fails to connect the appellant with the crime.

Durgesh Kumar Pareek P.W.3 is the father of the deceased. He deposed that he had enquired about the whereabouts of the deceased from his

elder son Neeraj and he had told him that he had gone with Yashpal Kalara in the vehicle belonging to his son. He also stated that he was also told by

his elder son that deceased was having Rs. 30,000/- in his pocket and had also taken Rs. 70,000/- from him. His son Dheeraj Pareek did not return

home and during night he received information from the police that his son had died in an accident. He suspected that his son had been murdered by

Yashpal Kalara. He had gone to the house of Yashpal Kalara and had enquired from him about the whereabouts of his son, but he had not disclosed

him the whereabouts of his son. At that time, Yashpal Kalara told him that he alongwith Vimal Sharma, Mahendra Kalara, Pintu Kalara, Rakesh

Pareek, Rajesh Kumar Sharma, Prem Pareek and Naresh Jaiswal were going to take meals but Dheeraj Pareek had not eaten. Therefore, he

suspected that all of them in connivance with each other had murdered his son.

Thus, a perusal of the statement of the said witnesses reveals that he suspected mainly that his son had been murdered by Yashpal Kalara. He

also deposed that his son had gone with Yashpal Kalara. The statement of this witness is merely hearsay because he has deposed as per the facts told

to him by his son Neeraj that deceased had left in his car with Yashpal Kalara. So this witness has not seen his son in the company of the appellant.

Thus, the statement of this witness fails to connect the appellant with the crime.

Neeta Pareek P.W.13 deposed that on 22.12.2012 her husband Dheeraj Pareek had gone with Yashpal Kalara. Yashpal Kalara had left his

vehicle in front of their house and both of them had gone together in their Activa vehicle. After sometime her younger daughter received a phone call

from her father that she should message him phone number of Narendra Sharma. Her husband did not return home for quite sometime. Her brother-

in-law made phone call to her husband and her husband told his brother that he was in some difficulty and he should take care of his family and the

telephone got disconnected, as if somebody had snatched it from him. At night somebody came and took away the vehicle of Yashpal Kalara, which

was parked in front of their house. Her elder daughter Sanchita Pareek had performed love marriage with Naresh Jaiswal. The occurrence had been

caused by Naresh Jaiswal, Yashpal Kalara and Narendra Sharma. All the said persons were pressurizing her husband that they should accept Naresh

Jaiswal. During the night, they received a message from the police that Dheeraj Pareek was lying in SMS Hospital. She believed that Yashpal Kalara,

Praveen Kalara and his brother Pintu Kalara, Vimal Sharma, Naresh Jaiswal and Prem Pareek had conspired to murder her husband. On 23.12.2012

Prem Pareek had handed over Activa alongwith its keys to them. Her husband had been murdered by Naresh Jaiswal, Yashpak Kalara, Praveen

Kalara, Pintu Kalara, Prem Pareek and Vimal Sharma. Mobile phone number of her husband was 9352144448.

Thus, so far as Neeta Pareek P.W.13 is concerned, she has not levelled any allegation against the appellant. Moreover, as per Neeta Pareek, the

deceased had left on his Activa, whereas, it had been alleged by the father of deceased that the deceased had left in his Maruti Car with Yashpal

Kalara. So far as Neeta Pareek is concerned, she has not deposed that her husband owned any car or that her husband had left the house in his car.

Hence, the statement of Neeta Pareek fails to point out involvement of the appellant in the crime.

Sanchita Pareek P.W.14 deposed that she had performed love marriage with Naresh Jaiswal on 11.1.2012. Her parents were not happy with her

marriage. On account of some dispute with Naresh Jaiswal, she had gone to the house of Yashpal Kalara. Then her husband came to the house of

Yashpal Kalara and tried to forcibly take her to matrimonial home. She made a phone call to her father. When her father reached the spot, a dispute

arose between Prem Pareek, Rajesh Jagga, Yashpal Kalara and Naresh Jaiswal. She had to stay back in the house of Yashpal Kalara. On the next

day, her father came and again talked to Yashpal Kalara, Pintu Kalara and Prem Pareek. Next day, she came to know in the morning that her father

had been murdered. On hearing news, she said that her father had been murdered by Yashpal Kalara, Prem Pareek, Mahendra Kalara, Vimal

Sharma, Pintu Kalara and Naresh Jaiswal. Her father was with the said persons on 22.12.2012. However, in her cross-examination she deposed that

when the quarrel had taken place, appellant was not present there. She had not heard the talks between her father and others in the house of Yashpal

Kalara.

Thus, the testimony of Sanchita Pareek P.W.14 also fails to connect the appellant with the crime as this witness has stated in her cross-

examination that when the quarrel had occurred between her father and others in the house of Yashpal Kalara, at that time the appellant was not

present there. Moreover, the fact that a quarrel had occurred between her father and Dheeraj Pareek, Prem Pareek, Rajesh Sharma, Yashpal Kalara

and Naresh Jaiswal was not mentioned in her police statement Exhibit-D/3.

Bhawani Shankar P.W.21 deposed that in August, 2012, he had loaded gravel in his Dumper. During night time, on 22.12.2012 at about 1:30 AM,

when he reached near Raja Shivdasji Ka Rasta Chaugan Stadium, a person was hit by a Maruti Car. The car driver sped away from the spot. The car

was of White colour. He could not notice the number of car. After sometime, police came and took the said person to the hospital.

Thus, the testimony of this witness also fails to advance the prosecution case, as this witness has failed to identify the car driver and has also failed

to disclose the car number involved in the incident.

Ashok Sharma P.W.22 deposed that he was owner of Maruti Wagon R Car bearing No. RJ14-CF-7957. His car was parked in front of his house,

as he did not have enough space to park the same inside his house. Police had told him that there were some blood stains on his car and he should not

clean the same for 4/5 days. He had no knowledge that there was any blood stains on the Bonnet or windowpane of his car.

Narendra Sharma P.W.23 deposed that he was running a hotel. On 22.12.2012 Naresh Jaiswal had met him and had told him that a dispute had

arisen between him and his wife. In the evening Yashpal Kalara and Dheeru @ Dheeraj @ Chhotu Pareek had met him and Yashpal Kalara had told

him that daughter of Dheeraj Pareek @ Chhotu had performed marriage with Naresh Jaiswal and they wanted to effect reconciliation. At that time,

Dheeraj @ Chhotu Pareek had told him that his daughter did not want to come to his house and they had made her stay in the guest house. On the

next day, 4/5 persons had come and met him and told him that Dheeraj @ Chhotu Pareek had been murdered and his daughter be sent with him. He

did not know those persons nor could identify them. He had not sent Sanchita Pareek with them. After about one hour he had arranged a Taxi for

Sanchita Pareek. At that time, he had no information regarding the murder. He came to know after 2/3 days that appellant had been arrested in

connection with murder of Dheeraj Pareek.

Thus, the statement of Narendra Sharma P.W.23 also fails to advance the prosecution case with regard to involvement of appellant in the crime.

Vimal Sharma P.W.25 deposed that he did not know the deceased but knew Yashpal Kalara. He did not remember the date and year but at about

8:00/9:00 PM, he was present in front of his house. Yashpal Kalara and 4/5 other persons were standing near a Dhaba. Yashpal Kalara came to him

and asked for liquor but he had declined. Thereafter, Yashpal Kalara left. At about 10:00/11:00 PM Dheeraj Pareek came in a Maruti Car and asked

for liquor and he had declined. On the next day, he came to know that Dheeraj Pareek had met with an accident. The said witness was declared

hostile but nothing fruitful could be elucidated from the cross-examination by the public prosecutor.

Dilip Singh P.W.26 deposed that he knew Naresh Jaiswal. On 22.12.2012, Ravi Vyas and Naresh Jaiswal had met him at 8:00/9:00 PM. Naresh

Jaiswal told him that his wife was not coming to her matrimonial home and he apprehended danger from Pintu Kalara and Yashpal Kalara. Then he

told Naresh Jaiswal to sleep in the house of Ravi Vyas. Then Naresh went to house of Ravi Vyas and slept there. On the next day, he came to know

that Dheeraj Pareek had died.

Thus, the statement of P.W.26 also fails to advance the prosecution case with regard to involvement of the appellant in the crime.

Raju Sharma P.W.27 deposed that his father was running a hotel near railway station. Narendra Sharma was son of his uncle. On 22.12.2012

daughter of his friend had alone stayed in his hotel for one night.

Vishal Singh Chauhan P.W.31 deposed that Yashpal Kalara was like his brother and lived in the same house. On 22.12.2012 Yashpal Kalara and

his brother Atul Singh had slept in a room in their house. On 23.12.2012 he came to know that Dheeraj Pareek had been murdered. Mahendra Kalara

younger brother of Yashpal Kalara had been arrested by the police. Yashpal Kalara had ousted Mahendra Kalara from the house from the very

beginning. Atul Singh P.W.32 has corroborated the statement of Vishal Singh Chouhan P.W.31.

Thus, the statements of both the above witnesses also fail to advance the prosecution case with regard to involvement of the appellant in the

crime.

Kanta Kashyap P.W.33 deposed that Yashpal Kalara, Mahendra and Praveen were her sons. She knew Dheeraj Pareek as he was friend of her

son Yashpal Kalara. Dheeraj Pareek was not happy with the marriage performed by his daughter. Daughter of Dheeraj Pareek had come to her

house alone and thereafter, Naresh Jaiswal had come to her house. A fight had taken place between Sanchita Pareek and Naresh Jaiswal. Sanchita

Pareek had stayed in their house for a night and her father had come to her house in the evening. Despite efforts, Sanchita Pareek had not gone with

her father and had left next morning.

Thus, the statement of above witness also fails to advance the prosecution case with regard to involvement of the appellant in the crime.

Neeraj Pareek P.W.34 deposed that Dheeraj Pareek @ Chhotu was his younger brother and was murdered on 22.12.2012. He came to know

about the murder on the next day and appellant was arrested by the police. Yashpal Kalara had come to his house in the evening at 7:00 PM and had

called for his brother. Dheeraj Pareek had left with Yashpal Kalara. However, when Dheeraj Pareek did not return home, they made a phone call to

him and he replied in a stuttering voice that he would come home within two minutes. Thereafter, Dheeraj Pareek did not return home and police

came to their house at night and told them that their brother had been murdered and they had removed him to SMS Hospital. Dheeraj Pareek was not

happy with the love marriage performed by his daughter Sanchita Pareek with Naresh Jaiswal. Yashpak Kalara and Mahendra Kalara were not

friend of Dheeraj Pareek. Naresh Jaiswal had introduced his brother to Yashpal Kalara and Mahendra Kalara. Dheeraj Kalara had taken Yashpal

Kalara on his Activa (two-wheeler) from their house.

Thus, from the statement of this witness, it is evident that the deceased had left the house with Yashpal Kalara on his two-wheeler (Activa). The

statement of this witness also fails to connect the appellant with the alleged crime.

Dr. Priyanka Sharma P.W.4 deposed that on 23.12.2012, she had conducted Post Mortem examination on the dead body of deceased Dheeraj

Pareek and proved the Post Mortem Examination Report Exhibit-P/11. In her cross-examination, she deposed that the possibility that the deceased

had suffered injuries in a roadside accident could not be ruled out.

Thus, the statements of the witnesses discussed above fail to connect the appellant with the alleged crime. The other witnesses examined during

trial are police officials.

The trial court has based the conviction of the appellant on the circumstance that mobile phone of the deceased was recovered from the appellant

and the fact that the Car of the deceased was recovered at the instance of the appellant. However, Ashok Sharma P.W.22 has deposed that the car-

in-question was owned by him, which has been alleged to be belonging to the deceased by Pradeep Kumar Pareek P.W.1. Ashok Sharma had denied

that his car had met with an accident. Rather, the said witness has deposed that his car used to be parked in front of his house, as there was not

enough space inside his house. There is no supporting documentary evidence on record to corroborate the testimony of Pradeep Kumar Pareek P.W.1

that the car-in-question was in-fact owned by the deceased. Moreover, the wife of the deceased had also not deposed that her husband had left the

house in his car. Rather, wife of the deceased had deposed that her husband had left with Yashpal Kalara on his Activa. Moreover, there is no other

corroborative evidence to complete the chain that how the car-in-question came in the hands of the appellant. Thus, the circumstance that the car of

the deceased was recovered on the basis of disclosure statement suffered by the appellant during investigation of the case stands falsified. Bhawani

Shanker P.W.21 has also failed to disclose the number of car, which had hit the deceased and has also failed to identify the driver of the car.

Although, it is the case of the prosecution that mobile phone manufactured by Samsung company belonging to the deceased was recovered from

the appellant at the time of his arrest, but Pradeep Kumar Pareek P.W.1 has deposed in his cross-examination that the said mobile phone belonged to

the appellant. Moveover, there is no bill on record to establish that the recovered mobile phone had been purchased by the deceased.

Thus, the trial court fell in error in ordering the conviction and sentence of the appellant with regard to charges framed against him, as the

prosecution had failed to complete the chain of circumstances pointing towards the guilt of the accused and negating his innocence. Rather, from the

prosecution evidence, the involvement of the appellant in the crime is highly doubtful.

Thus, after carefully going through the entire circumstances brought on record by the prosecution, we are of the opinion that the appellant

deserves to be acquitted as the prosecution has failed to establish its case against the appellant beyond the shadow of reasonable doubt.

Accordingly, the appeal preferred by the appellant is allowed. The conviction and sentence of the appellant as ordered by the trial court are set

aside. The appellant is acquitted of the charges framed against him. Appellant who is in custody, be set at liberty forthwith, if not required in any other

case.

Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Mahendra Kumar Kalara @ Dabbu is directed to

forthwith furnish a personal bond in the sum of Rs. 25,000/-, and surety bond of the like amount, before the Registrar (Judicial) of this Court, which

shall be effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of

leave, appellant Mahendra Kumar Kalara @ Dabbu on receipt of notice thereof, shall appear before the Supreme Court.