Rajendra and Others vs State of Rajasthan

R.S. Chauhan, J.—Challenging the judgment dated 26.7.2006, passed by Addl. Sessions Judge (Fast Track), Sikar, the appellants, Rajendra, Rajpal @ Raju son of Ram Karan, and Rajpal son of Mohan Lal, have filed two different appeals before this court. While Rajendra and Rajpal @ Raju have filed D.B. Criminal Appeal No. 901/2006, Rajpal son of Mohan Lal has filed D.B. Criminal Appeal No. 851/2006. Since both these appeals arise out of the same impugned judgment, they are being decided by this common judgment.

By a judgment of even date, the learned Judge had sentenced the appellants to life imprisonment, imposed a fine of Rs. 1000/-, and directed a further sentence of one month of simple imprisonment for offence under Section 302 IPC.

In a nutshell the case of the prosecution is that on 22.10.2004 Mahendra (P.W.14) submitted a written report (Ex. P.24) before the S.H.O., Police Station Ramgarh Sethan, District Sikar. The said report, when translated into English, reads as under:-

To

The S.H.O., Police Station Ramgarh Sethan.

Sub.: For registering a FIR.

Sir,

It is humbly submitted that my father-in-law Puran Mal, is a resident of village Hardayalpur. On 21.10.2004, around 9:30 PM, he had gone from his dhani to the village Hardayalpur in order to see a ''fad'' show. Around 10:00 PM Rajpal son of Ram Karan Punia, Rajendra son of Ram Karan Punia, Vidyadhar son of Ram Karan Punia and Rajpal son of Mohan Lal, stopped him on the way. They assaulted him and strangulated him. After killing him, they left his body at the trifurcation of the Lakhansar road. Since Srichand did not have the complete information about the occurrence, he did not file a FIR immediately. Due to the cold weather my father-in-law was carrying a chadar, a chitiya (chhari - a stick) and since it was night, he was carrying a three celled torch. He was also carrying a diary in his pocket. But we could not locate any of these things. I and Dharmendra had come to Hardayalpura for submitting this report. Please initiate the legal proceedings

sd/- Mahendra son of Mohan Singh By Caste Jat resident of Alakhpura Godaraan Police Station Laxmangarh, Sikar Dated 22.10.2004"

On the basis of this written report (Ex. P.24), the police chalked out a formal FIR (Ex. P.25), namely FIR No. 68/2004 for offence under Sections 341, 323, 302 IPC and started the investigation. After completing the investigation, the police submitted charge-sheet only against the appellants, but it did not submit any charge-sheet against Vidyadhar. The appellants were eventually charged for offence under Section 302 IPC. They denied the charges and claimed trial.

In order to support its case the prosecution examined seventeen witnesses, and submitted forty-five documents. In turn, the defence had submitted only fourteen documents, but did not examine any defence witness. After going through the oral and documentary evidence, the learned Judge convicted the appellants as aforementioned. Hence, these two appeals before this court.

Mr. Suresh Sahni, the learned counsel for the appellants, has raised the following contentions before this court: firstly, it is a case of blind murder where nobody has seen the actual murder. Thus, the entire case is based on circumstantial evidence. However, the prosecution has not been able to establish its case through a chain of circumstances which would unerringly point towards the guilt of the appellants. Secondly, although the complainant, Mahendra (P.W.14), and Dharmendra Kumar (P.W.16) claim that they had followed Puran Mal as he had left his house and was going to village Hardayalpura, but even they do not give any evidence for seeing the deceased and the appellants on the last occasion. Thus, there is no evidence of the "last seen" in the present case. Thirdly, according to Gheesa Ram (P.W.6), while the fad show was going on at the house of Sriram (P.W.2), some one had come and told the gathering that a dead body is lying at the trifurcation of the road leading to Naharsara. Further, according to Hoshiyar Singh (P.W.7), it is he who had told the gathering that a dead body was lying on the Naharsara road. Thus, these two witnesses clearly prove the fact that Puran Mal''s dead body was merely discovered, but nobody was seen even on the last occasion with him.

Fourthly, according to the prosecution, the stick (chitiya) was recovered at the instance of Rajpal @ Raju, the torch was recovered at the instance of Rajpal son of Mohan Lal, and the chadar (bedsheet) and the telephone diary were recovered at the instance of Rajendra. However, even these recoveries are unreliable. Despite the requirement of law that independent persons should be associated with such recoveries, the investigating agency had associated Manmohan (P.W.13), the son of the deceased, Mahendra (P.W.14) and Dharmendra Kumar (P.W.16). All of whom were either related or were friends of the family. Therefore, they were not independent, but interested witnesses.

Lastly, the clothes of the deceased, and the clothes of the accused, which were recovered during the course of investigation, and the chadar, too, recovered at the instance of the accused, merely show the presence of blood group ''B''. However, the prosecution has not eliminated the possibility that the blood group ''B'' could equally be that of the accused persons. Therefore, the FSL report (Ex. P.44) does not further the case of the prosecution.

On the other hand Mr. Aladeen Khan, the learned Public Prosecutor, and Mr. Ravi Nagar, the learned counsel for the complainant, have vehemently contended that even if the case is based on circumstantial evidence, the prosecution has established its case beyond a shadow of doubt. Both, Manmohan (P.W.13), the son of the deceased, and Mahendra (P.W.14) have spoken about the motive behind the murder. Puran Mal had told Mahendra that in the morning he had an altercation with the accused persons as the accused were trying to plant thorny bushes on the boundary of his field and he had objected to the same. According to both these witnesses, there was an animosity that had developed between the accused and the deceased, although both of them belong to same family and were neighbours.

Secondly, on the fateful night, both Mahendra (P.W.14) and Dharmendra Kumar (P.W.16) had seen the appellants sitting on the road. When they were asked whether they had seen Puran Mal? They denied the fact. Subsequently, Puran Mal''s body was discovered on the Takhalsar road. Thirdly, upon the information given by the accused persons, the police had recovered the stick, the chadar, the torch and the diary, all belonging to the deceased, Puran Mal. The recoveries have been proven by the testimonies of Mahendra (P.W.14) and Dharmendra Kumar (P.W.16). According to the FSL report (Ex. P.44) the chadar, and the clothes of the accused and the clothes of the deceased, all had blood group ''B''. Therefore, the prosecution has well established its case.

Heard the learned counsel, perused the impugned judgment, and examined the record.

An animosity can be a double-edged sword. While it could form the motive for committing a murder, but it could equally be the basis for false implication of accused in a criminal case. Therefore, the testimonies of Manmohan (P.W.13) and of Mahendra (P.W.14), wherein they have claimed that there were differences between Puran Mal and the appellants over the fact that the appellants were trying to plant thorny bushes on the boundary of the field, the said animosity could also form the basis for false implication.

In the present case, the alleged murder is said to have been committed on 21.10.2004 at around 10:00 PM. However, the written report was submitted on 22.10.2004 around 11:00 PM. Thus, the FIR was submitted after an inordinate delay of twenty-four hours. Of course, the complainant has claimed that since Srichand did not know all the facts of the case, therefore, he did not lodge FIR. But considering the fact that according to Mahendra (P.W.14) himself, he had followed the deceased in the night, according to Dharmendra Kumar (P.W.16), they had spoken to the appellants whom they had met on the way, considering the fact that Puran Mal''s body was discovered in the night itself, there is no plausible explanation for the delay in lodging the FIR promptly. Moreover, the FIR was not sent to the Magistrate till 24.10.2004 i.e. after an inordinate delay of three days. The delay has not been explained even by the Investigating Officer, Naresh Kumar (P.W.17).

Section 157 Cr.P.C. requires that a FIR should be sent immediately to the Area Magistrate. The law makes this requirement essential in order to ensure that the FIRs are not ante-timed, and the time taken between the alleged registration of the FIR, and sending of the FIR to the Area Magistrate is not used for falsely implicating the accused person(s).

In the case of Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has elaborately dealt with the effect of delay in sending the FIR to the Ilaka Magistrate as under:

"7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."

Therefore, it seems that the delay in lodging of the FIR was used for the purpose of fabricating a false story, and for implicating the present appellants in a criminal case.

Although Sriram (P.W.2) has turned hostile, but he does state that he had organised a fad show at his house. A fad show is a musical programme, where persons known as ''Bhopa'' and ''Bhopi'' sing a song in praise of a deity, ''Bhopaji'', while a painted canvas is unrolled and the story of Bhopaji is narrated through the songs and the relevant incidents are pointed out in the painting. It is a show that generally lasts throughout the night. According to Gheesa Ram (P.W.6), someone had come at the fad show, and had told the gathering that a dead body is lying at the Takhalsar road. According to Hoshiyar Singh (P.W.7), it is he who had informed the gathering that he had seen a dead body lying on the said road, but he did not know who the person was. Most importantly, Harish Chandra (P.W.5), who has not been declared as a hostile witness, clearly states in his testimony that "a fad show was organised in the house of Sriram son of Megharam Balai. The Bhopa and the Bhopi were singing there and were holding the fad show. Sriram had invited everyone in the village for the said show. In middle of the programme someone came and told the gathering that dead body of a man is lying at the trifurcation of the road from Hardayalpura to Naharsar and Takhalsar. The moment the information was received, the show ended. The villagers went to the place where the body was lying, but due to the dark night the body could not be recognised. The police reached the place around 10:30 at night. The police drew the inquest report which was signed by me, and contains my signature from ''c'' to ''d''." Surprisingly, despite the fact that the police had come at 10:30 at night on the date of the incident, still the FIR was not lodged till much later. According to this witness, the dead body could not even be identified, although Mahendra (P.W.14), the complainant, and Dharmendra Kumar (P.W.16) claim that they were present when the dead body was discovered at night. Hence, it is obvious that merely the dead body of Puran Mal was discovered with no clue as to who the possible assailants could be. Moreover, the delay in lodging of the FIR, and in sending the FIR to the concerned Area Magistrate, was utilised by the complainant and his party for falsely implicating the appellants in the present case. According to Naresh Kumar (P.W.17), during their police custody the appellants had given different informations to him under Section 27 of the Evidence Act. Consequently, by recovery memo (Ex. P.19) the torch was recovered at the instance of Rajpal son of Mohan Lal; by recovery memo (Ex. P.20) the chadar was recovered at the instance of Rajendra; similarly by recovery memo (Ex. P.21) the telephone diary was also recovered from Rajendra. By recovery memo (Ex. P.6), a chitiya (the stick) was recovered from the accused Rajpal @ Raju. Moreover, by recovery memo (Ex. P.23) Rajendra''s clothe was recovered; by recovery memo (Ex. P.31) clothes of Rajpal son of Mohan Lal were recovered; by recovery memo (Ex. P.33) the other clothes of Rajendra were recovered; by recovery memo (Ex. P.34) clothes of Rajpal @ Raju were recovered; by recovery memo (Ex. P.28) clothes of the deceased were recovered by the police. According to these recovery memos, most of the recoveries were made before Mahendra (P.W.14), the son-in-law of the deceased, and Dharmendra Kumar (P.W.16), a friend of the family. Thus, these recoveries were not made before independent witnesses, but were made before interested witnesses.

Section 100 CrPC is as under:-

Persons in charge of closed place to allow search.

"(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub- section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."

Rule 6.24 of the Police Rules is under:-

"Searches by police officers.-(1) The rules regarding searches by police officers are contained in sections 165 and 156, Code of Criminal Procedure. Notices of search under section 165, Criminal Procedure Code, summons to persons to witness search under section 103(1), Criminal Procedure Code, and search lists under section 103(2), Criminal Procedure Code, shall be prepared in Forms 6.24(1)(a), (b) and (c) respectively.

(2) An officer incharge of a police station receiving a requisition to search, under section 166, Code of Criminal Procedure, or other law applicable, shall comply without unnecessary delay and shall take all necessary precautions to ensure a successful search.

A police officer making such requisition may attend personally and assist in such search or may send one or more of his subordinates for that purpose.

(3) Circle officers supervising investigation and inspecting officers shall take disciplinary action against investigating officer who carry out searches under section 165, Code of Criminal Procedure, without sufficient justification."

A bare perusal of both the provisions clearly reveal that before making a search the police is required to associate two independent and respectable inhabitants of the locality, in which the search is to be made. Moreover, when any recovery is to be made on a statement given by the accused, the Investigating Agency is required, by law, to associate independent persons from the locality. However, instead of associating independent persons, the police has associated Mahendra (P.W.14), the son-in-law of the deceased, and Dharmendra Kumar (P.W.16), a friend of the family. Thus, both the persons are interested witnesses and are not independent witnesses.

According to Rohitash Yadav (P.W.15), the Malkhana Incharge, these recovered items were safely kept in the custody of the Malkhana. According to Dularam (P.W.11) he had taken the recovered items to the FSL for its examination and report. According to the FSL report (Ex. P.44), eleven sealed packets were received by it. The packet-B containing kameez, baniyan, pajama, and underwear, all showed the presence of blood group ''B''. Packet-E containing the pant and the T-shirt also showed presence of blood group ''B''. Packet-G containing pant and shirt also showed blood group ''B''. Packet-J containing a pant and shirt also showed blood group ''B''. However, the packet-H containing the chadar merely showed the presence of human blood. The diary in packet-I did not contain any human blood.

It was the duty of the prosecution to eliminate the distinct possibility that the blood group ''B'' could be that of the members of accused party. However, the prosecution has failed to do so. In the case of Prakash v. State of Karnataka [(2014) 12 SCC 133], the Hon''ble Apex Court has observed as under:-

"41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash''s seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash''s clothes were those of Gangamma''s blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh. P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash''s clothes were his own blood stains and that his blood group was also AB."

Similarly, blood group ''B'' is not so uncommon as not to belong to the members of accused party. The prosecution has failed to eliminate this possibility.

Although the prosecution has examined seventeen witnesses, although it has produced forty-five documents, but it has not been able to establish its case concretely, cogently and convincingly. It has been unable to forge a chain of circumstances which would unerringly point towards the guilt of the appellants. Since the prosecution case suffers from gaping holes, this court has no other option but to give the benefit of doubt to the appellants.

For the reasons stated hereinabove, this appeal is hereby, allowed. This court orders that the appellants, Rajendra S/o. Ram Karan, Rajpal @ Raju S/o. Ram Karan, and Rajpal S/o. Mohanlal, all by caste Jat, residents of Hardayalpura, Police Station, Ramgarh Sethan, Distt. Sikar, be released forthwith, if not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Rajendra S/o. Ram Karan, Rajpal @ Raju S/o. Ram Karan and Rajpal S/o. Mohanlal, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) each, and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effected for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.