Moti Lal @ Moti Ram S/o Bhera Ram, vs State of Rajasthan

In this cr. appeal filed under Section 374 (2) of the Cr.P.C .

the accused appellant has challenged the judgment dated

20.12.2006 passed by the learned Addl. Sessions Judge (FT), Bali

in Sessions Case No.19/2006 whereby the accused appellant was

convicted for the offences under Sections 302 IPC and for the

offences under Section 3 / 35 and 3 / 27 of the Arms Act and

following sentence was passed against him:

Under Section 302 IPC Life imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo one year additional sentence.

Under Section 3/25 and 2/27 of the Arms Act Three years RI with fine of RS.1,000/- and in default of payment of fine to further undergo six months RI.

As per facts of the case, a written report (Ex.P/15) was filed

by Moda Ram (PW--9) at Police Station Rani stating therein that

well (Arath) is situated at village Nadol, there is no water in the

well, where I am residing with my wife. My all the sons are

residing out of village for earning their livelihood. Today i.e., on

25.4.2006 at about 9.00 pm my wife in daily routine went near

well (Arath) for collecting fire woods and "Chhara". In the

evening at 4-O Clock my relative Jetha Ram S/o Tikam Ji

Choudhary, my nephew Kheema Ram, Achala Ram and wife of my

nephew Sukhi and Shanta went at my well Niwariya in tractor to

collect fire woods where they saw that dead body of my wife Umi,

aged about 68 years was lying there. One blood stained stone

was lying near the body, therefore, it is obvious that some

unknown person inflicted injury upon her head and caused death

of my wife. It is also stated that the gold ornament Bor and ring

of nose having weight of 7 and 4 grams respectively were not

found upon her body.

Upon receiving such information, the complainant

immediately went on spot and shifted the body in the trolley of

tractor. It is prayed by the complainant that body of his wife is

lying in tractor trolley, therefore, investigation may be conducted

so as to convict the person who murdered my wife.

Upon aforesaid information, formal FIR No.48 was registered

on 25.4.2006 against the accused appellant at Police Station Rani

and investigation was commenced. The dead body of the

deceased Umi was taken to the hospital and formal investigation

on the spot was conducted by the SHO Police Station Rani.

In the investigation, no eye witness or direct evidence was

found but in the post mortem report (Ex.P29), the medical board

gave its opinion that the cause of death of Smt. Umi wife of

complainant Moda Ram is hemorrhage and shock due to fire arm

injury. In the post mortem report, five injuries were also

mentioned by the medical board after examination of the body.

The accused appellant was arrested during investigation on

the basis of evidence of last scene near the place of occurrence

vide arrest memo (Ex.P/23) dated 26.4.2006. After arrest, as per

his information given under Section 27 of the Evidence Act, the

recovery of ornaments were made vide Ex.P/24 in presence of two

witnesses Ram Lal and Chaina Ram. After post mortem, the dead

body of the deceased was handed over to the family members.

The blood stained stone, blood smeared soil, control soil, Orna and

Kachali of the deceased was sent to the FSL for chemical

examination and in return, FSL report (Ex.P/37) dated 24.5.2006

was received. One SBML country made gun recovered at the

instance of the accused appellant was sent to the FSL, Jaipur and

the pallets (NjsZ) taken from the body of the deceased Umi were

also sent to the FSL for examination. In the FSL report of

articles, human blood of -O- group was found upon all the articles

were belonging to the deceased and soil collected from the place

of occurrence. After completion of investigation, charge-sheet

was filed against the accused appellant on the basis of

circumstantial evidence of recovery of ornaments, gun and last

seen in the court of Judicial Magistrate, Desuri under Section 302,

447, 394 IPC and for offence under Section 3 / 25 and 3 / 27 of the

Arms Act in FIR no.48/2006 registered against the accused

appellant at Police Station Rani.

The learned Magistrate committed the case for trial to the

court of learned Addl. District & Sessions Judge, Bail, but later on

it was transferred to the court of learned Addl. District & Sessions

Judge (FT), Bali for trial.

In the trial, after providing an opportunity of hearing charge

under Section 302, 447 / 394 IPC and under Section 3 / 25 and 3 / 27

of the Arms Act were framed but the accused appellant denied the

charge and prayed for trial. During trial, statements of 19

prosecution witnesses were recorded and 40 documents were

exhibited from prosecution side. Thereafter, the statements of

accused appellant were recorded under Section 313 Cr.P.C., in

spite of granting an opportunity to lead evidence in defence, no

evidence was led by the accused appellant in defence.

The learned trial court although gave finding that

prosecution has failed to prove recovery of ornaments but, held

accused appellant guilty for offence under Sections 302 IPC and

under Section 3 / 25 and 3 / 27 of the Arms Act upon the evidence of

-last seen- and recovery of gun at the instance of the accused

appellant and gave finding that the gun shot injury found upon the

body of the deceased was caused by the gun which is recovered at

the instance of the accused appellant vide judgment dated

20.12.2006 and passed sentence mentioned above.

The learned trial court acquitted the accused appellant from

the charge under Section 394 and 447 IPC because the

prosecution has failed to prove recovery of ornaments at the

instance of the accused appellant but held accused appellant guilty

for offence under Section 302 IPC and under Section 3 / 25 and

3 / 27 of the Arms Act.

In this appeal, the accused appellant has challenged validity

of the impugned judgment on number of grounds.

Learned counsel for the appellant submits that there is no

direct evidence or eye witness to prove the prosecution case

against the accused appellant for committing offence of murder.

The entire prosecution case is based upon circumstantial evidence

but the finding of guilt recorded against the accused appellant for

offence under Section 302 IPC on the basis of recovery of gun and

last seen is totally erroneous because it is based upon

presumption only. Learned counsel for the appellant further

submits that the evidence of -last seen- is based upon the fact that

accused appellant was seen nearby area of place of occurrence

with the gun is not an incriminating circumstance against the

accused appellant because the people of Bawari Case are usually

having muzzle loading gun with them, therefore, such fact of

recovery of gun at the instance of the accused appellant does not

connect the accused appellant with the crime, therefore, even if

finding of recovery of gun is accepted then also there is no

question to hold the accused appellant guilty of the crime of

murder.

Learned counsel for the appellant argued that the challan

was filed against the accused appellant on the basis of

circumstantial evidence, but the evidence to complete the chain of

circumstances is missing so as to hold accused appellant guilty

because the learned trial court disbelieved the recovery of

ornaments at the instance of the accused appellant. Therefore, the

conviction simply on the basis of recovery of gun does not prove

any case against the accused appellant. The finding of guilt

recorded by the learned trial court has no basis of trustworthy

evidence, therefore, the judgment impugned deserves to be

quashed.

Learned counsel for the appellant further argued that on the

one hand, the accused appellant has been acquitted from the

charge levelled against him under Section 447 and 394 IPC and

gave finding that he has not committed any offence of trespass

then how it can be presumed that accused appellant caused gun

shot injury on the deceased for ornaments, therefore, the finding

of conviction against the accused appellant is based upon the

erroneous consideration of circumstantial evidence because there

is no evidence to connect the accused appellant with the crime,

therefore, judgment impugned may be quashed.

Per contra, learned Public Prosecutor vehemently submits

that it is a case in which although there is finding that prosecution

has failed to prove recovery of ornaments, but this court cannot

lose sight of the fact that prosecution has proved the recovery of

gun at the instance of the accused appellant so also there is

finding of learned trial court that pallets (NjsZ) recovered from the

body of the deceased were caused by the gun, which is said to be

recovered at the instance of the accused appellant.

Learned Public Prosecutor submits that there is finding after

due consideration of the evidence that the day on which the

occurrence took place, the accused appellant was seen with

muzzle loaded gun nearby area where occurrence took place,

therefore, it cannot be said that any error has been committed by

the learned trial court so as to hold accused appellant guilty for

offence under Section 302 IPC on the basis of circumstantial

evidence of recovery of gun and last seen. Therefore, this appeal

may kindly be dismissed because there is no merit in this appeal.

After hearing learned counsel for the parties, first of all, we

have perused the finding of the learned trial court with regard to

recovery of ornaments. The learned trial court after due

appreciation of evidence gave its finding and held in para no.45 of

the judgment that prosecution has failed to prove the recovery of

ornaments at the instance of the accused appellant, therefore, the

accused appellant cannot be connected with the crime on the

basis of recovery of ornaments. However, the learned trial court

gave finding that gun was recovered at the instance of the

accused appellant in the presence of two witnesses PW--10 Ram

Lal and PW--12 Chaina Ram.

In our opinion, there is no question to disbelieve the finding

of the learned trial court regarding recovery of gun, but at the

same time, we are of the opinion that upon inquiry made by the

SHO (PW--6) Bhikam Chand from the licensing authority it was

specifically informed vide Ex.P/4 that no license is issued in favour

of the accused appellant to have gun, therefore, obviously,

prosecution has proved the recovery of gun, that too, without

license. We have considered the entire evidence and perused the

finding of the learned trial court with regard to fact of last seen. It

is very strange that there is no finding of the learned trial court

that accused was last seen with the deceased together. The

learned trial court gave following finding after assessment of

entire record, which reads as under:

VERNACULAR MATTER OMITTED

In view of the above, it is obvious that there is no finding or

evidence on record to prove that deceased and accused appellant

were last seen together before her death, therefore, the

conviction of the accused appellant upon aforesaid finding of last

seen is not sustainable in laws in view of the judgment of the

Hon''ble Supreme Court in the case of Sharad Birdhichand Sarda

Vs. State of Maharastra reported in AIR 1984 (SC) 1622.

It is admitted facts of the case that entire prosecution case is

based upon circumstantial evidence of last seen, recovery of

ornaments and recovery of gun, so also, evidence of ballistic

expert and FSL. As per our consideration and assessment, the

prosecution has failed that deceased and accused appellant were

last seen together before death of deceased. The finding of last

seen is based upon presumption only. Similarly, there is finding

in the judgment that prosecution has failed to prove recovery of

ornaments, at the instance of the accused appellant. Of course,

the prosecution has proved recovery of gun, but has failed to

prove that pallets found upon the body of the deceased were fired

from this gun recovered from the accused because as per FSL

report of articles (Ex.P/37) upon blood stained stone, blood

smeared soil, control soil, Orna and Kachali of the deceased the

blood of -O- group was in existence, but none of the articles

belongs to the accused appellant. In the ballistic report of FSL

(Ex.P/40), following opinion was given which reads as under:

"1. One S.B.M.L. country made gun (W/1) from packet -E- is a serviceable firearm.

The examination of the barrel residue indicates that submitted S.B.M.L. country made gun (W/1) had been fired. However, the definite time of its last fire could not be ascertained. 3. Eleven irregular shaped lead pieces and one rusted iron piece from packet -1- are normally not used in 12-bore ammunition. These could have been fired from submitted S.B.M.L. gun (W/1) from packet -E-."

Similarly, in the report of FSL (Ex.P/41) dated 5.5.2006

which is result of examination of pallets (NjsZ) it is reported that

though the human blood was found upon the pallets recovered

from the body of the deceased, but no opinion about blood group

is given, more so, it is observed that the same is inconclusive.

Upon cumulative reading of the Ex.P/40 and Ex.P/41 we are

of the firmed opinion that such type of circumstantial evidence

cannot be relied upon so as to connect the accused appellant with

the crime for offence under Section 302 IPC because it creates

serious doubt upon the prosecution case.

In Sharad Birdhichand-s case (supra), the Hon''ble Supreme

Court laid down following principles to assess the circumstantial

evidence, which reads as under:

"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 & A nr . v. State of Maharashtra('') 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 o t he r 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."

As per above law laid down by the Hon''ble Supreme Court,

we are of the firmed opinion that finding of the learned trial court

based upon circumstantial evidence of last seen and the FSL

report is not sustainable in law so as to connect the accused

appellant with the offence under Section 302 IPC because in the

case based upon circumstantial evidence, it is duty of the

prosecution to prove each and every facts so as to connect the

accused appellant with the crime. 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 the present case, on following grounds, serious doubt is

created upon the prosecution story, which are as follows:

A. Admittedly, there is no evidence on record to prove the fact

that deceased Smt. Umi and accused appellant were last

seen together. The only evidence is that accused appellant

was seen when he was going towards the place of

occurrence alongwith gun. Therefore, the evidence of last

seen cannot be considered as an evidence so as to connect

accused appellant with the crime.

B. It is true that in the FSL report of articles (Ex.P/37), blood of

-O- group was found upon the blood stained stone, blood

smeared soil, control soil, Orna and Kachali of the deceased,

which was recovered on spot, but admittedly, no article

belonging to the accused appellant was sent alongwith

aforesaid articles to ascertain the blood group. Therefore,

on the basis of FSL report (Ex.P/37) it cannot be presumed

that this circumstance is proved against the accused

appellant.

C. In the ballistic report of FSL (Ex.P/14) although a report is

given that SBML country made gun which is said to be

recovered as per information of the accused appellant is

serviceable but it is reported that the definite time of its last

fire could not be ascertained. In view of the above, it is

obvious that this circumstance is also not sufficient to

connect the accused appellant with the alleged crime of

murder.

D. There is report of FSL, which is result of examination of

pallets (NjsZ). Upon those pallets taken from the body of the

deceased, human blood was found but no blood group was

ascertained at the time of chemical examination. It is also

relevant to observe that none of the pallets was recovered

at the instance of the accused appellant and sent for

examination. Therefore, the report (Ex.P/41) of pallets

cannot be used as an evidence to punish the accused

appellant on the basis of circumstantial evidence.

Admittedly, the accused appellant has been acquitted from

the charge levelled against him under Section 394 and 447 IPC,

therefore, obviously it is a case in which prosecution has failed to

establish motive against the accused appellant for committing

offence of murder of deceased Smt. Umi.In view of the fact that

prosecution has failed to prove the chain of circumstances before

the court, therefore, finding of conviction is not sustainable in

law.

In view of the above discussion, this cr. appeal is partly

allowed. The conviction and sentence passed against the accused

appellant Moti Lal @ Moti Ram by the learned Addl. Sessions

Judge (FT), Bali in Sessions Case NO.19./2006 vide judgment

dated 20.12.2006 for the offences under Section 3 / 25 and 3 / 27 of

the Arms Act is hereby maintained, but while giving benefit of

doubt to the accused appellant, the conviction and sentence for

the offence under Section 302 IPC is hereby quashed. The accused

appellant has already served sentence of more than ten years,

therefore the accused appellant may be set at liberty unless

required in any other case.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant is directed to forthwith furnish

personal bond in the sum of Rs.20,000/- 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 appellant, on receipt of notice thereof, shall appear before

Hon''ble the Supreme Court.