AI Structured Summary
Not yet generated for this judgment
Judgment
In this cr. appeal filed under Section 374(2) Cr.P.C., the
judgment dated 25.11.2011 passed by learned Addl. Sessions
Judge, Nagaur in Sessions Case No.80/2011 is under challenge
whereby the accused appellant Ram Kishore was convicted for
offence under Section 302 and 449 IPC and accused appellant
Aaichuki was convicted for offence under Section 302 / 34 and 449
IPC and following sentence was passed against them:
ACCUSED APPELLANT RAM KISHORE:
Under Section 302 IPC Life imprisonment with fine of Rs.2,000/- and in default of payment of fine to further undergo six months RI
Under Section 449 IPC 10 years RI with fine of Rs.1,000/- and in default of payment of fine to further undergo three months SI.
ACCUSED APPELLANT AAICHUKI:
Under Section 302 / 34 IPC Life imprisonment with fine of Rs.2,000/- and in default of payment of fine to further undergo six months RI
Under Section 449 IPC 10 years RI with fine of Rs.1,000/- and in default of payment of fine to further undergo three months SI.
Facts of the case:
The complainant Bhikhi Devi (PW--13) submitted a written
report (Ex.P/21) at Police Station Khivsar, District Nagaur in which
an allegation was levelled by her that on 29.11.2008 at about 5-6
pm she went to the house of her sister Aaichuki and stayed there
in the night. Next day on 30.11.2008 at about 10.00 am she went
to the house of her father Nanu Ram. The door of the house of her
father was closed and upon opening the door when she entered
inside the house, and found that dead body of her father Nanu
Ram was lying in a Tibara and blood was scattered on floor. Upon
crying her sister Aaichuki came on spot. The aforesaid incident
was reported by the complainant to the police that my father has
been murdered by unknown persons, therefore, investigation may
kindly be conducted and action may be taken to punish the
culprits.
Upon aforesaid complaint Ex.P/21, the SHO Police Station,
Khivsar, District Nagaur registered the FIR no.131/2008 for
offence under Section 302 IPC and commenced investigation.
After registration of FIR the SHO, Police Station, Khivsar
went on spot immediately and prepared Panchnama (Ex.P/1) site
plan (Ex.P/5) and inquest report )Ex.P/7). The photographs of the
site were also taken for the purpose of investigation, thereafter,
the dead body of deceased was taken to the Primary Health
Center, Khivsar, where post mortem was conducted by the
medical board head by Dr. Shiv Prasad Partani (PW--9) and post
mortem report (Ex.P/10) was prepared and handed over to the
investigating officer on 1.12.2008. In the post mortem report it
is reported that five injuries including three incised wounds were
found upon the neck of the deceased and as per the opinion of the
medical board, the cause of death of deceased Nanu Ram was
hemorrhage shock due to injury on the neck. During
investigation, the police arrested the accused appellant Ram
Kishore S/o accused appellant Aaichuki D/o dceased Nanu Ram on
2.12.2008 vide arrest memo Ex.P/8 and accused appellant
Aaichuki D/o deceased Nanu Ram was arrested on 22.4.2009 vide
Ex.P/9. On completion of investigation the SHO Police Station
Khivsar field charge-sheet against the accused appellants on the
basis of circumstantial evidence of recovery of cloths and Katar so
also, upon the evidence of "motive" with regard to land dispute in
the court of Judicial Magistrate under Section 302, 302 / 34 and
449 IPC.
The learned Magistrate committed the case for trial to the
court of Addl. Sessions Judge, Nagaur. The learned trial court after
hearing arguments on charge, framed charge against the accused
appellant Ram Kishore for the offence under Section 302 and 449
IPC whereas charge under Section 302 / 34 and 449 IPC was
framed against the accused appellant Aaichuki, mother of the
accused appellant Ram Kishore and daughter of deceased Nanu
Ram. Both the accused appellants denied the charges framed
against them and claimed for trial.
In the trial, statements of 26 witnesses were recorded from
prosecution side and 42 documents were exhibited in support of
the case and, thereafter, prosecution evidence was closed. After
recording evidence of prosecution, the learned trial court
proceeded to record statement of the accused appellants under
Section 313 Cr.P.C. in which accused appellants denied all the
allegations made by the prosecution witnesses and said that they
have been falsely implicated in this case due to ulterior motive by
the relatives. In defence three witnesses DW-1 Bhagwana Ram,
DW-2 Ramjeevan and DW-3 Jitendra Singh were produced before
the court and 25 documents were exhibited from defence side.
The learned trial court after hearing the arguments of both
the sides, convicted the accused appellant Ram Kishore for
offence under Section 302 and 449 IPC and convicted accused
appellant Aaichuki for the offence under Section 302 / 34 and 449
IPC and passed sentence mentioned above vide judgment
impugned dated 25.11.2011.
Being aggrieved and dissatisfied with the aforesaid
judgment, the instant appeal has been filed by the accused
appellants.
The learned Senior Counsel Mr. Jagmal Singh with Tarun
Dhaka vehemently argued that the conviction of the accused
appellants for aforesaid offences is totally erroneous because
there is no eye witnesses of the case and entire case is based
upon circumstantial evidence of recovery of blood stained cloths
and weapon (Katar) which is not reliable and trustworthy. Learned
counsel for the appellants further argued that in absence of eye
witness of the incident it is true that the accused can be convicted
on the basis of circumstantial evidence but as per settled principle
of law, the chain of circumstances are required to be proved
beyond reasonable doubt, but in this case, PW--2 Om Prakash,
PW--2 Prem Sukh, PW--4 Durga Ram, PW--5 Ugara Ram, PW--6
Hardeen Ram and PW--8 Dayal Ram all witnesses of Panchnama
and inquest report and site plant have not made any allegation
against the accused appellants to connect them with the crime.
The whole prosecution case is based upon recovery of blood
stained cloths which is shirt and pent of the accused appellant
Ram Kishore and Odhani of accused appellant Aaichuki, so also,
weapon of offence (Katar), which is said to be recovered as per
the information given by the accused appellant Ram Kishore. The
learned counsel for the appellants submits that out of two
witnesses of recovery, PW--10 Kishana Ram and PW--16 Mala
Ram, the witness PW--16 Mala Ram turned hostile and did not
support the prosecution case and PW--10 ishna Ram admitted
that cloths and Katar were recovered from open place assessable
to all, therefore, it is obvious that recovery of above articles has
not been proved by the prosecution beyond reasonable doubt.
Learned counsel for the appellants invited attention towards
statements of PW--8 Dayal Ram and PW--11 Smt. Shanti in which
both the witnesses admitted that pent, shirt and Katar were lying
on spot and those articles were taken in possession by the police
from the spot, therefore, has wrongly been relied upon by the trial
court because recovery of above articles is totally fabricated and
false. As per prosecution case on 22.12.2008 an Odhani was
produced by accused appellant Aaichuki before the investigating
officer in the presence of motbir Hukama Ram and Madan Lal and
said Odhani was seized vide recovery memo Ex.P/21 but it is very
strange that without arresting Aaichuki, the said Odhani was sent
to the FSL and after four months on 22.4.2009 the accused
appellant Aaichuki was arrested vide Ex.P/1, but in the trial the
witness Madan Lal, before whom the said Odhani produce by the
Smt. Aaichuki was taken in possession by the police. Smt.
Aaichuki, turned hostile and did not support the prosecution case
and other witness Hukma Ram is interested witness.
According to the learned counsel for the appellants it is a
totally false case in which the accused appellant Aaichuki was
arrested after more than 4 months from the date of incident on
22.4.2009 and after arrest there is no recovery of any article from
her, more so, as per prosecution case, the so called Odhani was
produced by accused appellant Aaichuki on 22.12.2008 but it is
best known to the prosecution what was the reason that accused
appellant Aaichuki produced the said Odhani for the purpose of
investigation. The learned counsel for the appellants submits that
although prosecution has failed to prove the recovery of articles
but the learned trial court convicted the accused appellants on the
basis of wrong assessment of entire evidence.
Learned counsel for the appellants submits that the learned
trial court has erroneously relied upon the statements of PW--1
Smt. Keshar Devi, PW--10 Kishana Ram and PW--17 Hukma Ram
because they are interested witnesses and Smt. Kehar Devi
improved her statement to falsely implicate the appellant for the
crime of murder. As per the prosecution story, the deceased Nanu
Ram was having four daughters including PW--1 Smt. Keshar Devi
and there was some dispute with regard to the land in between
them, so also accused appellant Ram Kishore was claiming that he
is adopted son of Nanu Ram, but in the litigation upon objection
by Nanu Ram matter was settled, therefore, it is stated by the
learned counsel for the appellant that there was no motive with
the accused appellant Ram Kishore to commit murder of his Nana
(Nanu Ram). The deceased Nanu Ram was having four daughters
namely PW--13 Bhikhi, PW--11 Shanti, PW--1 Keshar Devi and
accused appellant Aaichuki. The accused appellant Aaichuki was
arrested on the basis of recovery of Odhani upon which blood was
found after more than four months upon allegation levelled by the
PW--1 Keshar Devi, the 4th daughter of deceased, but during
trial, two sisters PW--11 Shanti and PW--13 Bhikhi turned hostile
and did not support the prosecution case whereas PW--1 Keshar
Devi, 4th daughter of the deceased Nanu Ram made allegation
against the accused appellants that relations of accused appellant
Ram Kishore and his father Nanu Ram were not good due to the
land dispute, but she admitted the fact of compromise in between
the parties. It is also argued that there is no evidence on record
for motive to connect the accused appellant Ram Kishore and
accused appellant Aaichuki to kill Nanu Ram, therefore, the finding
of the learned trial court deserves to be quashed and set aside.
It is true that accused appellant Ram Kishore was claiming
his right as adopted son and for the purpose of partition of land,
some litigation took place, but matter was settled in between the
parties prior to the alleged incident, so also compromise took
place in between them as per evidence on record, therefore, it is
a case in which prosecution has failed to establish any motive
against the accused appellants for committing offence of murder.
Lastly, it is argued that no conviction can be based only on the
basis of recovery of article if other evidence is not supporting the
prosecution case, in view of the judgment rendered by the Hon''ble
Court in the case of Mani Vs. State of Tamilnadu reported in
2008(2) CJ (SC) Cri. 523, Varun Choudhary Vs. State of Rajasthan
reported in 2012(2) CJ (Cri.) (SC) 352, Sharad Birdhichand Sarda
Vs. State of Maharastra reported in AIR 1984 (SC) 1622, and
Ram Lal @ Ramu Vs. State of Rajasthan reported in 2014 Law Suit
(Raj.) 1398, the conviction of the accused appellants is not
sustainable in law. More so, argued that it is a case in which
prosecution has failed to prove its case beyond reasonable doubt
against the accused appellant Ram Kishore and as per simple
assessment of evidence, accused appellant Aaichuki daughter of
the deceased Nanu Ram has been implicated falsely in this case
only on the basis of so called recovery of Odhani upon which blood
of ?O? group was found.
With regard to the fact that blood of ?O? group was found in
the FSL report (Ex.P/38 and P/39), it is submitted that the
accused appellant Aaichuki is the daughter of the deceased and at
the time of incident, she was at spot and as per statement of
PW--8 Dayal Ram, when Aaichuki was sitting the Odhani was
sustained with blood, therefore, there is no question to implicate
her for crime on the ground that in FSL report blood of ?B? group
was found upon Odhani. Similarly, if recovery of articles is false
then there is no question to accept the circumstantial evidence of
recovery to connect the accused appellant Ram Kishore with the
alleged crime of his own maternal grand-father Nanu Ram. There
is no evidence on record to prove the fact that accused appellant
Ram Kishore was even present at the time when occurrence took
place, therefore, the judgment impugned based upon so called
evidence of recovery of articles may kindly be quashed and
accused appellants may be acquitted from the charge.
Per contra learned Public Prosecutor and learned counsel for
the complainant Sh. Sunil Mehta submits that there was motive
left with the accused appellant Ram Kishore to kill Nanu Ram
because accused appellant Ram Kishore was claiming his right as
adopted son of Nanu Ram being son of his Aaichuki but in the
litigation initiated by the accused appellant Ram Kishore and
sisters in the revenue court as well as in the civil court, deceased
Nanu Ram refused to accept the fact that he is adopted son of
him, therefore, it cannot be said that prosecution has failed to
prove motive, more so, there are number of documents with
regard to litigation of land in between deceased Nanu Ram and
accused appellants Ram Kishore and Aaichuki. It is obvious that
there was enmity in between the deceased and the accused
appellants and their relations was not cordial.
Learned Public Prosecutor vehemently argued that conviction
can be based upon recovery of articles and in this case blood
stained "Katar", shirt and pent of accused appellant Ram Kishore
were recovered as per information given by him under Section 27
of the Evidence Act and blood stained Baniyan of the deceased
was taken in possession after post mortem and all the articles
were sent for chemical examination to ascertain the blood group
upon the articles. In FSL report (Ex.P/38 and P/39) it is reported
that upon cloths except pent blood of ?B? group was found upon
the articles, as such prosecution has proved the case beyond
reasonable doubt, therefore, there is no question to say that
entire prosecution case, which is based upon circumstantial
evidence of recovery has not been proved.
According to the learned Public Prosecutor and learned
counsel for the complainant the deceased Nanu Ram was having
four daughters, out of which, accused appellant Aaichuki is one of
the daughter and Ram Kishore is son of Aaichuki. Out of
remaining three sisters, although two sisters did not level any
allegation against the accused appellants for commission of
offence but PW--1 Keshar Devi has categorically stated in her
statement that there was motive with the accused appellants to
commit murder of her father. The deceased was not accepting
accused appellant Ram Kishore as his adopted son, so also
accused appellants Ram Kishore and Aaichuki were forcibly
cultivating the land of deceased Nanu Ram and due to land
dispute, there was bad intention of the accused appellants to grab
the land of the deceased, therefore, the committed offence to kill
her father Nanu Ram. It is argued that on the basis of entire
evidence on record, there is no doubt that prosecution has proved
its case beyond reasonable doubt on the basis of circumstantial
evidence of recovery of articles and weapon, which connects the
accused appellants with the crime of committing murder of Nanu
Ram in his own house, therefore, the judgment citied by the
learned counsel for the appellants are not relevant and applicable
to set aside the judgment impugned.
Learned Public Prosecutor, initiated our attention towards the
judgment in the case of Budhuram Vs. State of Chhattisgarh
reported in (2012) 11 SCC 588 and said that circumstantial
evidence of recovery can be relied on so as to convict the accused
appellants for the alleged offence of murder, therefore, the instant
appeal may kindly be dismissed.
After hearing the learned counsel for the parties, first of all,
we are assessing evidence upon which accused appellant Aaichuki
has been convicted. It is admitted fact that accused appellant
Aaichuki is one of the daughter of deceased Nanu Ram. As per
statement of another daughter PW--1 Keshar Devi no person was
adopted as son by her father, my sister Aaichuki and her husband
Hanuman Ram and son Ram Kishore were residing in Dhani they
were forcibly cultivating the land of her father but her father was
objecting to it, therefore, quarrel took place in between them for
which police action is going on. It is also stated by the said
witness that litigation is going on in between accused appellant
Ram Kishore, Aaichuki and my father.
It is also stated on oath before the court that before 15
days of his death my father informed me that Ram Kishore is
giving threatening to him that he will kill him, but this witness
specifically stated that when my father died, Ram Kishore was not
present, but I am making allegation against Ram Kishore and my
sister for the reason that blood was found upon the cloths of Ram
Kishore and Odhani of her sister. A detailed cross-examination
was made by the counsel for the accused and specific questions
were put to the witness PW--1 Keshar Devi whether you have
made all these allegations in the statement recorded under
Section 161 Cr.P.C, it is replied by her that although all these
facts were disclosed by her to the police, but police has not
recorded the said facts in her statement (Ex.D/4) recorded under
Section 161 Cr.P.C. on 1.12.2008. We have perused the
statement of Keshar recorded under Section 161 Cr.P.C.. In the
said statement, it is nowhere stated by PW--1 Keshar Devi that
any blood was found upon the cloths of Ram Kishore and Aaichuki,
therefore, it is obvious that this witness has completely improved
her statement and made allegation against the accused appellants
to connect and involve them with the crime on the basis of so
called recovery of blood stained cloths.
It is also admitted fact of the case that accused appellant
Aaichuki is daughter of the deceased and in the statement of PW--
8 Dayal Ram it is specifically stated by him that when I sent on
site, all the four daughters of the deceased, which are Bhikhi,
Kehsar, Shanti and Aaichuki (accused appellant) were sitting there
and the blood was scattered on floor, therefore, the Odhani of the
accused appellant Aaichuki, who was sitting there, was sustained
with blood. The learned trial court disbelieved the testimony of
this witness PW--8 Dayal Ram in spite of fact that he was present
on spot after the death of the deceased.
As per prosecution case, the accused appellant Aaichuki was
arrested after four months on 22.4.2009 without any evidence and
her conviction is based upon the recovery of Odhani, which is said
to be given by accused appellant Aaichuki herself to the police on
22.12.2008 just three days of the occurrence in the presence of
two persons Hukama Ram and Madan Lal. The said Odhani was
not recovered after arrest of Aaichuki on the basis of information
given by her under Section 27 of the Evidence Act, therefore, it is
obvious that said recovery of Odhani upon which blood of ?B?
group was found as per FSL report (Ex.P/28) cannot be relied
upon so as to connect the accused appellants with the crime. It is
also very important to mention here that there is no other
evidence, direct or circumstantial, against the accused appellants
except the evidence of so called blood upon Odhani, which is said
to be taken in possession prior to five months by the police, which
is produced by the accused appellant Aaichuki herself.
On the basis of above facts and evidence on record, we have
no hesitation to hold that finding of conviction recorded against
the accused appellant Aaichuki is based upon false and irrelevant
evidence, therefore, the said evidence cannot be relied upon so as
to convict any accused appellant for alleged offence of murder.
The accused appellant Aaichuki being daughter of the deceased
Nanu Ram was having right over the property in question,
therefore, the evidence of litigation to prove ?motive? is not
sustainable in law. There is another set of evidence on record that
deceased Nanu Ram was living with another lady while treating
her as wife and all children were objecting to it. Therefore, the
reason for litigation was altogether different for which accused
appellant Aaichuki cannot be blamed.
Upon assessment of entire evidence on record, we have no
hesitation to hold that conviction of the accused appellant Aaichuki
is not sustainable in law.
We have considered the case of the accused appellant Ram
Kishore in the light of evidence and the arguments advanced by
the learned counsel for the parties. Admittedly, there is no direct
evidence to prove the prosecution case against the accused
appellant Ram Kishore. The accused appellant Ram Kishore was
arrested vide Ex.P/8 on 2.12.2008 at 3.00 pm and information
under Section 27 of the Evidence Act (Ex.P/36 and P/37) were
given by him on 2.12.2008 at 3.30 pm and on 3.12.2008 at 7.00
am respectively. In pursuance of the said information, the cloths
(pent and shirt) were recovered vide Ex.P/1 at 4.30 pm on
2.12.2008 in the presence of two witnesses Kishana Ram and
Sabu Ram. Similarly, the weapon Katar was recovered vide
Ex.P/13 in presence of two witnesses Kishana Ram and Sabu Ram
from open place at 8.00 am on 3.12.2008.
Out of two witnesses of recovery of the cloths and Katar,
PW--26 Sabu Ram turned hostile and did not support the
prosecution case, more so, specifically said in examination-in-chief
that no pent, Kamiz and Katar was recovered in front of him and
further said that my thumb impression was taken by the police in
police station. In the cross-examination made by the Addl. Public
Prosecution it is specifically said by this witness that Kishana Ram
was not present when my thumb impressions were taken at police
station. Meaning thereby, the witness of recovery PW--26 Sabu
Ram completely denied the recovery of cloths in front of him. We
have perused the statement of PW--10 Kishana Ram, another
witness of recovery. Following statement is given by him which
reads as under:
VERNACULAR MATTER OMITTED
In the cross-examination it is stated by this witness that
deceased Nanu Ram was my cousin brother and deceased Nanu
Ram was not having any issue. We have perused the information
of cloths (Ex.P/36) in which it is observed by the Investigating
Officer, which reads as under :
VERNACULAR MATTER OMITTED
Upon perusal of the above information given by the accused
appellants, it is obvious that it is nowhere stated by him that I
was wearing shirt and Kamiz. The only information given that
cloths which I was wearing, I identify the place from where those
cloths can be recovered, but it is very strange that at the time of
recovery, two cloths, Kamiz and pent was recovered and as per
FSL report upon pent no blood of ?B? group was found. It is also
admitted position of the case that the place from where shirt and
pent as well as weapon Katar was recovered is an open place.
Meaning thereby, it is a case in which out of two witnesses of
recovery, one Sabu Ram (PW--26) turned hostile and other
witness Kishna Ram though stated before the court that recovery
of cloths and Katar was made in front of him but it is not in
dispute that those recoveries were made from open place, so also,
the witness Kishana Ram is relative of the deceased. Therefore,
we are of the view that recovery of cloths and Katar is doubtful.
To assess the finding of the learned trial court with regard to
involvement of the accused appellant Ram Kishore, we have
perused the statement of PW--1 Keshar Devi. The statement
(Ex.PD/4) of witness Keshar Devi under Section 161 Cr.P.C. were
recorded in the trial on 1.12.2008 in which she raised suspicion
against accused appellant Ram Kishore and gave following
statement, which reads as underL
VERNACULAR MATTER OMITTED
It is admitted position of the case that Smt. Keshar (PW--1)
is one of the daughter of the deceased Nanu Ram. Out of four
daughters, two other daughters Bhikhi and Santi has not levelled
any allegations against the accused appellant Ram Kishore or
accused appellant Aaichuki, only Keshar Devi (PW--1) made
certain allegations in her statement under Section 161 Cr.P.C. and
raised doubt upon the accused appellant Ram Kishore on the ground he was annoyed with Nanu Ram because he has refused to
accept him as adopted son. In the statement of PW--1 Keshar
Devi recorded during trial certain allegations are levelled by her
and raised doubt against the accused appellants but no specific
fact is disclosed by her with regard to any incident in past. More
so, in the cross-examination, when she was confronted from her
statement recorded under Section 161 Cr.P.C. (Ex.D/4), it is
stated by her that whatever statement given in the court were
narrated to the police but why in her statement (Ex.D/4) recorded
under Section 161 Cr.P.C. those facts were not incorporated by
the police.
In our opinion, on the basis of improved statement of PW--1
Keshar Devi it cannot be said that testimony of this witness is
reliable so as to hold accused appellant guilty for offence and to
accept the evidence of motive. In para no.2 of the statement on
the one hand, Smt. Keshar Devi said that at the time of
occurrence, accused appellant Ram Kishore was not there but in
second line, it is stated by her that I found blood upon the cloths
of Ram Kishore and Aaichuki, therefore, she is having doubt
against them. The following assertion was made by the witness
Keshar (PW--1) in her statement recorded in the court, which
reads as under:
VERNACULAR MATTER OMITTED
In view of the above statement, we are of the view that her
statements cannot be treated trustworthy. It is true that some
litigation took place with regard to dispute that Ram Kishore is not
adopted son of Nanu Ram and upon reply filed by Nanu Ram
learned Civil Judge (Jr.Div.)-cum-Judicial Magistrate decided the
suit on 16.9.2006 in which an issue was framed whether Ram
Kishore is adopted son of the deceased Nanu Ram or not. The
learned trial court gave finding that as per reply and evidence on
record Ram Kishore is not adopted son of Nanu Ram. In our
opinion, once the verdict was given by the civil court that Ram
Kishore is not adopted son of Nanu Ram, then obviously, Ram
Kishore was to be treated as son of accused appellant Aaichuki
daughter of the deceased only. In our opinion, when mother of
the accused appellant Ram Kishore was having right and share in
the property of Nanu Ram with other then there is no question to
accept the allegation of motive levelled by the PW--1 Keshar Devi,
one of the daughter of the deceased Nanu Ram.
Undisputedly, recovery of cloths and weapon Katar was
made from open place, therefore, it is not safe to uphold the
finding of conviction of the learned trial court so as to hold
accused appellants guilty for the said offence only on the basis of
recovery of cloths and weapon Katar from the open place.
The Hon''ble Supreme Court in following cases categorically
laid down the law that in absence of direct evidence although on
circumstantial evidence accused can be convicted, but at the same
time, the conviction cannot be based only on the basis of recovery
of articles recovered from open place. The judgments are as
follows:
In case of Mani Vs. State of Tamilnadu (supra), the Hon''ble
Supreme Court held that evidentiary value of recovery is a weak
kind of evidence and that cannot be relied upon so as to hold
accused appellants guilty. The para no.21 of the said judgment is
as follows:
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for
that circumstance has to go.
Similarly, in the case of Varun Choudhary Vs. State of
Rajasthan (supra), the Hon''ble Supreme Court while considering
evidence to hold that in absence of any evidence of identification
and upon the fact that prosecution has failed to establish the
evidence to complete the evidence which would lead to a
conclusion that accused was the only person who could have
commit offence none-else, no conviction can be based. Paras
nos.21, 24 and 25 of the said judgment are relevant, which reads
as under:
"(21) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution. Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction.
(24) It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath vs. State of Karnataka, (2010)8 SCC 593, para 24, it has been stated that
"in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken
together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved............. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".
(25) In another case of C. Chenga Reddy v. State of A.P ., reported in (1996) 10 SCC 193, this Court has held that
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In case of Ram Lal @ Ramu Vs. State of Rajasthan reported
in 2014 Law Suit (Raj.) 1398 in identical case based upon
circumstantial evidence, following adjudication was made by this
Court, which reads as under:
"18. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of
the legal proof. There is a long distance between ?may be true? and ?must be true?. When a case rests squarely on circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probabilities the act must have been done by the accused.
In view of the above discussion, we are of the opinion that
the conviction of the accused appellant Ram Kishore based upon
only recovery of cloths and Katar, that too, has not been proved
beyond doubt, is not sustainable because out of two witnesses of
recovery, PW--26 Sabu Ram turned hostile and specifically said
that other witness Kishana Ram was not present at the time of
putting thumb impression in the police station and story of motive
narrated by PW--1 Keshar Devi cannot be treated as piece of
evidence so as to hold accused appellant Ram Kishore guilty,
therefore, his conviction is also not sustainable in law.
Consequently, the cr. appeal is allowed. The judgment dated
25.11.2011 passed by the learned Addl. Sessions Judge, Nagaur
in Sessions Case NO.80/2011 convicting and sentencing the
accused appellant Ram Kishore for the offences under Section 302
and 449 IPC and accused appellant Aaichuki for the offences
under Sections 302 / 34 and 449 IPC is hereby quashed. The
accused appellant Aaichuki is already on bail, therefore, she is not
required to surrender and her bail bonds are hereby discharge.
The accused appellant Ram Kishore be set at liberty unless
required in any other case.
Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellants are directed to forthwith furnish
personal bonds in the sum of Rs.20,000/- each and a surety bond
in the like amount, before the learned trial court, which shall be
effective for a period of six months to the effect that in the event
of filing of Special Leave Petition against the judgment or for grant
of leave, the appellants, on receipt of notice thereof, shall appear
before Hon''ble the Supreme Court.