Sandeep Alias Kalu @APPELLANT@Hash State Of Rajasthan

Mohammad Rafiq, J

These appeals are directed against the judgement dated 09.01.2012 passed by the Additional Sessions Judge, Khetri, District Jhunjhunu in Sessions

Case No.83/2009 by which the accused-appellants have been convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with a fine of

Rs.1,000, in default of payment of fine, to further undergo six months rigorous imprisonment and also for offence u/s.394/34 IPC and sentenced to ten

years rigorous imprisonment with a fine of Rs.1,000, in default of payment of fine to further undergo six months simple imprisonment. The sentences

were ordered to run concurrently.

Brief and relevant facts giving rise to the present appeals are that one Dharamveer (PW7) submitted a written report (Ex.P21) on 05.06.2009 at 11.00

PM to the SHO, Singhana, District Jhunjhunu to the effect that his son Raj Singh went from his Village Goth on 05.06.2009 at 11.00 AM for Chirawa,

Jhunjhunu with Sayami Sehi on his motorcycle Bajaj XCD 125 Black Colour, No. RJ18-SA or SB 1006. While he was returning at about 9.00 or 9.30

PM on the same motorcycle to Village Goth, on the way between Goth and Bhaisawat, some unknown persons murdered him by causing injuries by

knife and also took away his Bajaj motorcycle. The police, on the basis of the above report, registered the FIR no.143/2009 (Ex.P22) at 12.30 AM on

06.06.2009 at Police Station Singhana, District Jhunjhunu for offence under Sections 302 and 392 IPC. During investigation, the police arrested the

accused-appellants and after concluding the investigation, the charge sheet was filed against all three accused persons. The learned trial court framed

the charges against the accused persons for offence under Sections 302/34 and 394/34 IPC. The accused persons denied the charges and pleaded not

guilty. The prosecution examined as many as 15 witnesses and produced 42 documents, to prove its case. The defence examined one witness and

exhibited 7 documents. The learned trial court on conclusion of the trial, convicted the accused appellants and sentenced them as stated above by

impugned judgement dated 09.01.2012. Hence these appeals.

Shri A.K. Gupta, learned Senior Advocate assisted by Ms. Mudita Sharma for accused-appellant Sandeep @ Kalu in appeal no.120/12 and Shri

Rinesh Gupta, learned counsel for accused- appellant Sandeep @ D.P. in appeal no.171/12 have argued that there is no eye witness of the occurrence

and the prosecution case hinges entirely on the circumstantial evidence. From the impugned judgment, it seems that the learned trial court even did not

take care to go through the principle related to the circumstantial evidence and without considering the same, convicted the accused-appellants. Thus,

in these circumstances, the conviction of the accused appellants cannot be sustained at all.

It is contended that there are no circumstances against the accused-appellants to connect them with the crime, which is clear from the impugned

judgment. The judgment also does not disclose as to what are the circumstances on the basis of which the accused appellants have been convicted.

Thus, the findings arrived at by the learned trial court are illegal, perverse and liable to be set aside. It was the duty of the learned trial court to look

into the circumstances appearing against the accused persons and then pass the impugned judgment in accordance with the law. The learned trial

court has discussed the material available on record but did not find any circumstance to connect the accused appellants with the crime.

It is contended that it seems that the learned trial court was persuaded by two recoveries; one is motorcycle, which admittedly does not belong to the

deceased and it seems that the learned trial court was of the view that in view of the statement of Chailu Ram (PW6), this motorcycle would have

passed through the way at that time, second recovery is of number plate, on the basis of the information of the accused. This number plate has not

been proved by any person including deceased's father Dharamveer (PW7) and brother Inder Singh (PW5). Neither the motorcycle no.HR35-C-5473

was produced in the court nor so called number plate recovered vide Ex.P.17, was produced before the court. Thus, both these articles were not

produced before the court but in spite of this fact, the learned trial court took into consideration these recoveries and convicted the accused appellants.

If the recovery of motorcycle no. HR35-C-5473 is taken into consideration, then it is clear that it does not connect the accused appellants with the

crime. The information is Ex.P.36 and recovery memo is Ex.P.16. The learned trial court has not at all considered the statements of attesting

witnesses and Investigating Officer Surendra Singh (PW14) in connection with the recovery of this vehicle. This vehicle was not seen by any person

near the place of occurrence or on that road at the relevant time. The prosecution has produced Chailu Ram (PW6), who has stated that he only

heard the noise of motorcycle. He has admitted in the cross examination that motorcycle was being taken regularly on that way. Thus, in these

circumstances, it is clear that recovery of the motorcycle does not connect the accused with the crime.

Another circumstance is recovery of number plate vide Ex.P.17 on the basis of the information (Ex.P.37). This plate did not have any number. The

recovery memo clearly goes to show that only ""LIC"" was inscribed on this plate. If the statement of Investigating Officer Surendra Singh (PW14) is

taken into consideration, then it becomes clear that recovered plate was not containing any such word. This plate has not been identified by any person

to show that this number plate is of the motorcycle of deceased Raj Singh. Thus, in these circumstances, this number plate is not connected with the

crime. Thus, the conviction of the accused-appellants is bad in law and liable to be quashed and set aside.

It is contended that the learned trial court has observed that information Ex.P.35 was given in connection with the place of occurrence, which was

verified through Ex.P.8. The place of occurrence was made known to the police on 05.06.2009 itself.

The accused appellant Sandeep @ Kalu was arrested on 18.09.2009 and accused appellants Sandeep @ D.P. and Ravi @ Bhalu was arrested on

17.09.2009. It seems that the learned trial court has not taken into consideration this circumstance. Moreover, none of the circumstances was put to

the accused appellants under Section 313 Cr.P.C. Thus, in these circumstances, the conviction of the accused appellants is bad in law.

Learned counsel further submitted that the learned trial court has not properly considered this aspect of the case that Sajjan Kumar, who is Motbir of

seizure memo Ex.P.16 relating to the motorcycle no. HR35-C-5473, has not been examined. Another Motbir Inder Singh (PW5) is brother of

deceased and thus, he is interested witness. The prosecution has not proved that it was in exclusive possession of the accused appellants and

recovered from the house of the accused. No witness has been examined to this effect by the prosecution. Thus, this recovery has got no value.

It is argued that the learned trial court has not properly considered and critically examined the statements of the defence witnesses. It was the duty of

the learned trial court to consider the statements of the defence witnesses. However, the learned trial court failed to consider the same.

Learned senior counsel further submitted that the conviction of the accused appellants is based on surmises and conjectures and not on solid evidence

of the prosecution. From a bare perusal of the impugned judgment it is clear that the learned trial court has given benefit of doubt to the prosecution

and only on the basis of conjectures and surmises, convicted the accused appellants. The learned trial court did not give the accused appellants proper

opportunity of hearing and producing the evidence on the point of sentence as per the mandatory provisions of Section 235 Cr.P.C. Thus, the sentence

imposed upon the accused appellants is bad in law.

Learned senior counsel referred to the copy of the malkhana register (Ex.P30A) and argued that even in that register various other articles were

shown to have been deposited by the Investigating Officer, but the parts of the motorcycle, which were allegedly recovered at the instance of the

accused appellants were not mentioned. Those articles have not been identified by anyone. Investigating Officer Surendra Singh Devda has admitted

that none of those articles contained the modal number of the motorcycle XCCD125. 13 articles were produced in the Court containing the inscription

DTH-S, which is different than modal XCCD. Learned counsel argued that a news was published in newspaper 'Punjab Kesari' on 16.9.2009 (Ex.D7)

that the police has recovered a dismantle motorcycle from the mines near Village and Dhani Kirarod, Narnaul Police Station in the presence of

Sarpanch Data Ram. It is that recovered motorcycle which has been thrown on the accused appellant. In cross examination, the Investigating Officer

admitted that the motorcycle was shown recovered from the house of Sher Singh and Ram Singh. He could not say however that Sandeep @ D.P.

S/o Ram Singh was residing with his father. In cross examination, he also admitted that District administration had to face a lot of protests and

`dharnas' in the present matter. The argument of learned counsel is that accused- appellant was falsely implicated only because the police was not

able to crack the case. It was a blind case, which has been fastened on the accused-appellants, who were otherwise innocent.

Learned senior counsel argued that the accused-appellants have been made scapegoat only because the Investigating Officer failed to prove the case

and accused appellants were suddenly arrested in the barricading that was done at 8.00 pm on 17.9.2009 on the instruction of Circle Officer near

village Navta of Narnol Singhana Road on the basis of source information that certain miscreants are passing through the check post and it was during

routine interrogation that the accused-appellants allegedly admitted having committed murder of Raj Singh.

In addition to adopting the arguments of Shri A.K. Gupta, learned Senior Advocate for the accused-appellant Sandeep @ Kalu and Shri Rinesh Gupta

for accused appellant Sandeep @ D.P., Shri Sriram Yadav, learned counsel for the accused appellant Ravi @ Bhalu has referred to the statement of

Dharmveer (PW7), the informant and father of deceased Raj Singh and submitted that he in his cross examination has stated that on seeing the knife,

he observed that injury to his son was inflicted by use of knife and the learned trial court has also at page 25 of the judgement recorded a finding that

not only blood stains were found on the shirt and baniyan of the deceased Raj Singh, but also on the knife lying nearby. This clearly shows that

recovery of knife vide Ex.P15 at the instance of accused-appellant Ravi @ Bhalu allegedly on the basis of information obtained from him u/s.27 of the

Indian Evidence Act vide memo Ex.P32, is a planted recovery.

Learned counsel has referred to the statement of Investigating Officer Surendra Singh Devda (PW14) and argued that this witness categorically

admitted that neither motorcycle nor different parts thereof, nor number plate was produced in the Court as articles. Even the knife having blood stains

allegedly recovered at the instance of accused appellant Ravi @ Bhalu, was not produced in the Court, nor it was shown to the Doctor to elicit his

opinion whether such injury could be caused by knife. In view of this, the evidence of recovery of the parts of the motorcycle allegedly looted and the

knife, cannot be read against accused appellant. Learned counsel in support of his arguments has relied on the judgement of the Supreme Court in

Prabhoo vs. State of Uttar Pradesh-AIR 1963 SC 1113 and Subhash Chand vs. State of Rajasthan-(2002) 1 SCC 702.

Learned counsel further argued that the Investigating Officer Surendra Singh Devda in his statement before the court has categorically admitted that

he obtained the call details of Sunita D/o Birbal Singh, B/c Jat, R/o Mainana Khanpur and initially also investigated the case from the angle as to

whether the deceased has been murdered owing to the fact that he was proposed to be engaged with Sunita, but then the engagement was broken.

He admitted that his investigation revealed that deceased was earlier engaged with Sunita, but he denied the suggestion that engagement was broken

because the deceased doubted her character. He even went to the extent of saying that the cellphone recovered vide Ex.P25 carried a SIM issued in

the name of Sunita, but denied the suggestion that Sunita had a talk with deceased on the day of incident i.e. 05.06.2009. However, he did not deny

that the call details of the cellphone of Sunita were not obtained by him, but admitted that call details of the cellphone of Sunita obtained by him, but he

has not filed the same with the charge sheet. Learned counsel argued that an adverse inference should be drawn against the prosecution for not

producing the aforesaid call details. Had the call details been produced, the same would have proved the fact that the deceased had conversation with

Sunita on the day of incident.

Learned counsel argued that the alleged motive of the accused appellant of committing murder of deceased was that they wanted to loot his

motorcycle does not at all inspire confidence and has not even been proved because neither number plate of motorcycle has been produced, nor the

parts thereof were proved to be of the motorcycle.

Smt. Sonia Shandilya, learned Public Prosecutor has referred to the statement of Manoj Kumar (PW13) and argued that he had purchased the

motorcycle from military canteen and thereafter sold it to Inder Singh, brother of the deceased. Even if the registration certificate was not transferred

in favour of Inder Singh, this motorcycle was being used by the deceased, who was agent of LIC and name plate affixed on the motorcycle with LIC

inscribed on it was also recovered. Learned Public Prosecutor referred to the articles recovered from the bag of the deceased vide memo Ex.P6 and

stated therein that 2 LG mobile of black colour and one brown colour purse of deceased was also recovered from his pocket, which had his identity

card issued by LIC, which provided that the said motorcycle was being used by him. The recovery memo of loose parts of the motorcycle has been

made at the instance of accused-appellant Sandeep @ Kalu from his house. The suggestion was given to Investigating Officer by the defence that the

chesis number and the engine number of the motorcycle were inscribed on the loose parts by the prosecution only in order to implicate the accused,

but he denied the suggestion to prove the entry in Ex.P40 matched with this entry with registration certificate (Ex.P28). The malkhana register also

indicated the motorcycle number entry therein. The number plate of the motorcycle with LIC inscribed has also been entered. Clothes of deceased

were recovered vide Ex.P17. The site plan of the incident is Ex.P2 and the FSL report is Ex.P39, which indicate that clothes of the deceased as also

the knife containing human blood are the linking evidences.

Smt. Sonia Shandilya, learned Public Prosecutor has referred to the statement of Investigating Officer Surendra Kumar Devda (PW14) and argued

that Fateh Singh (PW3) and Rajveer Singh (DW1) have stated that they were coming together with the louring machine at around 8.30-9.00 o' clock.

Budhram was coming from front side in a tempo with 15-20 persons, who gave the signal by hand to them and asked to stop the vehicle and told

about the dead body lying nearby, who appears to have been murdered by knife. Chailu Ram (PW6) has incorporated this fact that when he was

sitting on the vegetable shop near village Basavata on 05.06.2009 at around 9 o' clock, he saw Budhram coming from a tempo. He had carried a

water bottle and was going to answer the call of nature. When he went with the tempo, this witness saw two motorcycles coming from the side of

Goth and going towards Singhana. This clearly proves that it must be accused, who came there on two motorcycles there and committed the murder

of deceased.

We have given our thoughtful consideration to the rival submissions and perused the material on record.

As regards the motorcycle, Inder Singh (PW5) in cross examination has admitted that he did not give any document such as registration certificate,

insurance papers etc. of the motorcycle to the police. He also did not give any document to prove that the deceased was either employed with LIC or

was working with them as agent. He also admitted that the motorcycle was not produced by him in the Court, therefore, he could not identify. The

defence has caused a dent to the credibility of the recovery witnesses thereabout. It is admitted by the Investigating Officer Surendra Singh Devda

(PW14) in the Court that he had no evidence against the accused prior to arrest and the arrest was also made when as per him, a source information

was received by Circle Officer that certain criminals had run from jail and the police had made a 'nakabandi' and the three accused were arrested

near the check post. It is during interrogation of the accused that the Investigating Officer has stated that they admitted their complexity in the crime.

Investigating Officer prior to that was investigating the case from a different direction. If that is the case, the police should have proved that they

doubted the role of Sunita or her family members in the murder of deceased. Investigating Officer though admitted that Sandeep was initially engaged

with Sunita and then the engagement was broken because deceased doubted her character and that he obtained the call details of Sunita and

recovered the cellphone of Sunita containing a SIM in the name of Sunita as Ex.P25, but the call details have not been placed on record. An adverse

inference ought to be therefore drawn against the prosecution for not producing the call details. Had the call details been produced herein it could have

disclosed the conversation between the deceased and Sunita on the fateful day of incident.

Investigating Officer Surendra Singh Devda (PW14) has also admitted that he did not obtain any proof of the title documents of the house wherefrom

the said recovery was made, but he admitted that he did not make any recovery from the house no.16, which was the house of the father of accused-

appellant Sandeep @ Kalu. When a suggestion was given to him that this house belonged to Rajveer S/o Kailash Ahir, he did not effectively counter

that suggestion, but stated that he made a search in the house wherefrom the parts of the motorcycle were recovered only because accused Sandeep

indicated that house to be his own. This witness admitted that neither he got the motorcyle identified from anyone, nor produced the same in the Court.

The motorcycle did not have any number plate, but only one plate was recovered at the instance of accused, which had the inscription of LIC. In fact,

the registration certificate of the motorcycle Ex.P38A shows that its number was RJ-1B-SD-1006, which was in the name of Manoj Kumar. As

PW13, Manoj Kumar has been made to say that he sold the motorcycle to Inder Singh, the brother of the deceased in January, 2009, but its

registration continues to be in his name because he purchased the motorcycle from military canteen and could not immediately sale it. When the

question was put to Inder Singh (PW5), he has stated that the motorcycle or parts thereof have not been produced by him in the Court. There was no

evidence against the accused-appellants for their involvement. Even the recovered parts of the motorcycle cannot be held to belong to the motorcycle

registered in the name of Manoj Kumar because in the recovery memo (Ex.P14), the chesis number and engine number had been indicated, however,

the registration number of motorcycle was not mentioned in the memo. The Investigating Officer neither did anything to get the parts of the

motorcycle assembled nor got then examined from the expert to say that they belonged to same motorcycle or different motorcycle. The prosecution

has sought to prove that the motorcycle belonged to deceased only by showing a recovery of number plate with LIC inscribed on it and from an

identity card of LIC recovered from the belongings of the deceased vide Ex.P6 to contend that the deceased was working as LIC agent.

In the malkhana register (Ex.P30A), the entry of different parts of the motorcycle has not been made though as per the prosecution the alleged looted

motorcycle was broken into pieces and dismantled, yet the malkhana register indicated the entry of motor cycle XCCD 125, black coloured with

registration no.RJ- 18SASR1006. This was a clear cut case of the prosecution that the motorcycle was broken into pieces and was completely

dismantled. When a pertinent query was made to the Investigating Officer Surendra Singh Devda during investigation, he stated that numbers of

motorcycle RJ18-SA1006 and RJ18- SR1006 were different. The number plate of the motorcycle which was recovered was a plate which contained

the inscription of LIC. In this regard, the statement of Rajveer Singh (DW1) is quite significant, who has stated that Sandeep @ Kalu was unmarried

and was staying with his father Vishambhar Dayal and the adjoining house wherefrom the recovery was made by the police has nothing to do with

Sandeep @ Kalu. The police had shown false recovery from the adjoining house, which belonged to him although the police never actually came to

their house to make such recovery. He along with his wife, brother, father and mother was residing in that house.

Pursuant to information (Ex.P32), recovery of knife was made vide recovery memo (Ex.P15), which is shown to have been made on 20.09.2009 from

the house of accused Ravi @ Bhalu where Inder and Sajjan Kumar have been shown as attesting witnesses. Inder happened to be brother of the

deceased. Sajjan Kumar, another attesting witness has not been produced. No doubt, the FSL report has indicated that the knife was found to contain

human blood, but the manner in which the said recovery has been made on information u/s.27 at the instance of accused- appellant Ravi @ Bhalu

does not inspire confidence.

Similarly, the recovery of motorcycle vide Ex.P14 has become doubtful because its attesting witnesses were also Inder and Sajjan Kumar. Moreover,

the broken pieces of the motorcycle have not been proved to be of the same motorcycle. Besides, the defence has also succeeded in creating doubt

about the said motorcycle by showing that around the same time period, a motorcycle was recovered from the mines of near Village and Dhani

Kirarod, Narnaul Police Station in the presence of Sarpanch Data Ram. Even motive which has been stated as loot of motorcycle cannot be

substantiated from the above evidence.

The Supreme Court in State (Delhi Administration) Vs. Gulzarilal Tandon - AIR 1979 SC 1382, held that in a matter where the case of the

prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused. It is also

well settled that the accused can be convicted on circumstances, which are wholly inconsistent with the innocence of the accused.

It is trite that in a case of circumstantial evidence there must be complete chain of evidence which should lead to conclusion that the accused was the

only person, who could have committed offence and none else. Each of circumstances that is proved against the accused should form a chain so

complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused.

In Mohd. Arif v. State (NCT of Delhi) - (2011) 13 SCC 621, the Supreme Court held that each of the circumstances has to be assessed on its own

merits. Quality rather than quantity of evidence is crucial factor in a case of circumstantial evidence. The court has to be cautious against imaginary

inferences or its prejudices, which may unwittingly creep in. Its verdict must be based on clear and irrefutable logic. Responsibility of the prosecution

in a case of circumstantial evidence is more as compared to the cases where ocular testimony or the direct evidence is available.

In Kulvinder Singh v. State of Haryana - (2011) 5 SCC 258, also it was held by the Supreme Court that in exceptional cases, conviction of accused

can be based solely on circumstantial evidence but in that case the prosecution has to establish its case beyond reasonable doubt and cannot derive

any strength from weakness of defence put up by accused. Circumstances from which guilt is to be drawn should be fully established and should be of

conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with hypothesis of guilt of

accused and chain of evidence must be so complete as not to leave any reasonable ground for conclusion consistent with innocence of accused and

must show that in all human probability the act must have been done by accused and none else.

In Inspector of Police, Tamil Nadu Vs. John David - (2011) 5 SCC 509 , also the Supreme Court sounded a word of caution that the court must be

cautious against conjectures and surmises taking place of proof. Circumstances so proved must form a chain of events pointing to guilt of accused

beyond all reasonable doubt without there being possibility of any other hypothesis. Each and every incriminating circumstance must be clearly

established by reliable and clinching evidence, and the circumstances so proved must form chain of proof from which natural and irresistible

conclusion could be drawn as to the guilt of accused and no other hypothesis against guilt is possible. It was further observed by their Lordships that in

a case depending largely upon circumstantial evidence, there is always a danger that conjectures and surmises may take place a legal proof. The court

must 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 innocence of the accused. The court has to be watchful and avoid the danger of allowing the suspicion to take the

place of legal proof. There is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.

It was further observed that when important link goes, the chain of circumstances gets snapped. This is what has happened in the present case

because of failure of the prosecution to connect the recovered handle of the sword from the place of incident with the sword recovered at the

instance of the accused, and also the evidence of last seen and recovery against the accused stands on shaky grounds. In our considered opinion,

therefore, it would be highly unsafe to sustain conviction of the accused-appellant on the kind of evidence that has been adduced in this case.

In the present case not only the individual circumstances were not proved by clinching and convincing evidences, but they do not even join to form a

chain so complete so to rule out every other hypothesis that may be compatible with the innocence of the accused-appellants and do not point out a

finger of doubt against them that it must be they and none else, who must have committed murder.

In view of above discussion, the accused-appellants have been able to make out a case for extending them benefit of doubt. The charges for the

alleged offences cannot be held to have been proved against accused-appellants beyond reasonable doubt. We, are, therefore, persuaded to allow

these appeal and acquit the accused-appellants as their guilt has not been proved beyond reasonable doubt.

In the result, the present appeals deserve to be succeed and are accordingly allowed. The impugned judgement dated 09.01.2012 passed by the

Additional Sessions Judge, Khetri, District Jhunjhunu in Sessions Case No.83/2009 is set aside. The accused-appellants are acquitted from all the

charges. The accused-appellants Sandeep @ Kalu, Sandeep @ D.P. and Ravi @ Bhalu are in jail. They shall be released forthwith, if not required to

be detained in relation to any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal

bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be

effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the

appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

Office to place a copy of this judgement in each connected file.