Shankar And Ors vs State Of Rajasthan

Vide this order above mentioned three appeals would be disposed of.

Appellants have filed separate appeals challenging their conviction and sentence ordered by the Trial Court vide judgment/order dated 22.09.2017 under Section 302, 120-B, 450 & 109 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

Complainant Ramanuj Pareek lodged a report on 26.08.2014 that on the said day he had left his house at about 11.30 a.m. to supply the curtains stitched by him at the shop of Kanhiyalal. When the complainant returned home at about 12.30 p.m., he saw the dead body of his wife was lying in the room, soaked in blood. It was the case of the complainant that his wife had been murdered by some unknown persons.

On the basis of the statement of the complainant, formal FIR No. 504 dated 26.08.2014 was registered at Police Station Nayapura, District Kota City under Section 302/452 IPC.

On 28.08.2014, complainant again approached the police station by moving an application Exhibit P-11 alleging that his wife had been murdered by his brothers Shambhu, Daudayal, Shankar and his nephews Lokesh and Vikash on account of property dispute.

After completion of investigation and necessary formalities, challan was presented against accused Lokesh, Shambhu, Vikash, Daudayal and Shankar.

Charges were framed against the accused under Sections 120-B, 302, 302/149, 450, 109 IPC. Accused did not plead guilty of the charges framed against them and claimed trial.

In order to prove its case, prosecution examined nineteen witnesses. Accused when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), prayed that they were innocent and have been falsely involved in this case. They further stated that there was no property dispute between the parties.

Accused examined DW-1 Maluram Pareek in their defence.

Trial Court vide impugned judgment/order dated 22.09.2017 ordered the conviction and sentence of the appellants as mentioned hereinabove. So far as accused Daudayal and Shambhu are concerned, they were acquitted of the charges framed against them by the Trial Court. Hence, the present appeals by the appellants.

Learned counsel for the appellants has submitted that the material witnesses had not supported the prosecution case, during trial. In the initial version, it was the case of the complainant that his wife had been murdered by some unknown persons. After two days, complainant levelled allegations against the appellants and their co-accused regarding their involvement in the crime. Motive alleged against the accused was that the accused wanted that the complainant should not get share in the ancestral property. However, in case, the wife of the complainant was murdered, then complainant would have anyway got share in the property. Hence, the motive put up by the prosecution was not believable. False recoveries has been foisted on the appellants by the prosecution during investigation of the case.

Learned state counsel has opposed the appeals.

Present case relates to murder of Asha Pareek @ Babla. Case rests on circumstantial evidence.

It has been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. (AIR 1990 SC 79), as under:-

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

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

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

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra )."

It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh (AIR 2012 Supreme Court 1552), as under:-

"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."

PW-13 Dr. Deepak Sharma deposed that on 27.08.2014, he had conducted postmortem examination on the dead body of the deceased Asha Pareek @ Babla. He proved the postmortem report Exhibit P-12. As per the postmortem examination report, cause of death of the deceased was coma brought about as a result of antemortem head injury.

Complainant while appearing in the witness-box as PW-1 did not support the prosecution case and stated that his wife had no dispute with the accused facing the trial. The said witness deposed that when he had lodged the report with the police, he had been beaten by the police and had been threatened by the police and due to this reason, he had moved the application Exhibit P-11.

PW-4 Ratiram also did not support the prosecution case, during trial with regard to the involvement of the appellants in the crime. The said witness in his cross-examination deposed that he had been beaten by the police officials.

PW-8 Hemant Pareek, son of the deceased has deposed that he could not tell anything with regard to the death of his mother. He further deposed that on the day of the death of his mother, he was playing outside and he had seen Lokesh coming out of the house. He further deposed that Lokesh and Vikash were his brothers and Shambhu and Daudayal were his uncles. The said persons had gone to Shampura on that day. His mother had not disclosed to him anything with regard to any dispute at the time of their visit to Shampura. The said witness was declared hostile and in his cross-examination by the learned Public Prosecutor, he deposed that his mother had told him that these persons could kill them on account of partition of land etc. He denied the portion of his statement Exhibit P-43 recorded under Section 161 Cr.P.C., wherein, it was recorded that whenever they used to go their village his uncles used to call her mother as a women having magical powers. In his cross-examination by the accused, he deposed that he could not tell when his mother had told him that accused could kill them on account of land dispute, nor he had disclosed the said fact to his father.

Thus, the statement of PW-8 fails to advance the prosecution case. PW-8 is a ten years old child and as per his uncle (PW-10), he (PW-8) had gone to his (PW-10) house from school. Complainant has also stated that when he had left the house, at that time his children had gone to school. Thus, PW8 was not present at the spot on the day of incident. His statement Exhibit P-43 was also recorded after two days of the incident. Hence, we are of the opinion that the testimony of PW-8 fails to establish the involvement of the appellants in the crime.

PW-10 Mahesh Kumar Pareek in his cross-examination deposed that on the day of incident, children of the deceased had gone to school and had come to his house after school. The said witness is the brother-in-law of the complainant.

Thus, in the present case, above mentioned witnesses have not supported the prosecution case, during trial with regard to the involvement of the appellants in the crime. Moreover, initially, complainant had stated that his wife had been murdered by some unknown persons. Presence of witness Ratiram at the spot was also not disclosed in the initial report. After two days, complainant moved application Exhibit P-11, wherein, he stated that his wife had been murdered by the accused on account of property dispute. Accused Shambhu, Daudayal and Shankar are the brothers of the complainant, whereas, accused Lokesh and Vikash are the sons of the deceased brother of the complainant. Motive set up vide Exhibit P-11 is that there was some property dispute between them and accused did not want to give share out of the ancestral property to the complainant. Motive set up by the prosecution fails to inspire confidence because accused would not have gained anything by committing the murder of wife of the complainant as the complainant would have, in any case, inherited his share out of the property-in-question. The delay in levelling allegations against the accused by the complainant also renders the prosecution case against the accused doubtful.

Moreover, complainant involved the accused only on the basis of suspicion.

During investigation of the case, blood stained T-shirt was recovered at the instance of appellant Vikash vide Exhibit P-29 on the basis of his disclosure statement. So far as appellant Shankar is concerned, blood stained knife, two pieces of blade and a blood stained shirt was recovered vide Exhibit P-30 on the basis of his disclosure statement. So far as appellant Lokesh is concerned, motor-cycle allegedly used at the time of crime was recovered vide Exhibit P-38 on the basis of his disclosure statement.

So far as blood stained T-shirt recovered at the instance of appellant Vikash is concerned, as per the Forensic Science Laboratory report, the blood group on the same was found to be 'inconclusive'. So far as recovery of motor-cycle from appellant Lokesh is concerned, the said fact fails to advance the prosecution case against him without any other corroborative evidence regarding his involvement in the crime. Hence, conviction of appellants Vikash and Lokesh merely on the basis of recoveries cannot be upheld in the absence of any other connecting evidence with regard to their involvement in the crime.

So far as appellant Shankar is concerned, as per the Forensic Science Laboratory report Exhibit P-73, blood stains found on the knife and shirt recovered from him were of blood group-'B'. The blood smeared stone lifted from the spot was also of blood group-'B'. However, the recovery of the articles allegedly effected on the basis of disclosure statement of Shankar was from an open place. Appellant Shankar was arrested on 30.08.2014 vide Exhibit P-37 and recovery from open place was effected on 1.9.2014. A perusal of Exhibit P-31, site plan of the place of recovery of articles reveals that the same has been effected from a vacant plot and the ownership of the plot has not been described in the site plan. Moreover, at the time of recovery of the articles, no independent witness was joined and the recovery was effected by the police officials from open place. Recovery effected allegedly at the behest of appellant Shankar from an open place would not be in itself sufficient to uphold the conviction of appellant Shankar in the absence of any other connecting evidence with regard to his involvement in the crime.

Thus, in the present case, prosecution had failed to complete the chain of circumstances leading towards guilt of the appellants and negating the possibility of their innocence. Complainant as well as PW-4 Ratiram have not supported the prosecution case, during trial. Statement of PW-8 also does not advance the prosecution case. As per PW-1, his children had gone to school when he had left the house at about 11.30 a.m. As per PW-10 children of the deceased had gone to his house after attending school. Recoveries allegedly effected on the basis of disclosure statements suffered by the appellants also fail to advance the prosecution case as discussed hereinabove. Motive in the present case available with the appellants to have committed the crime is also not believable.

It is a settled proposition of law that the prosecution is required to prove its case against an accused beyond the shadow of reasonable doubt. However, in the present case, prosecution has failed to bring home the guilt of the accused by completing the chain of circumstances leading towards their guilt. Rather, in the present case, possibility that somebody else might have committed the crime cannot be ruled out.

Hence, we are of the considered opinion that the Trial Court has erred in ordering the conviction and sentence of the appellants with regard to the charges framed against them.

Accordingly, all the three appeals are allowed. Impugned judgment/order of the trial court dated 22.09.2017 are set aside. Appellants are acquitted of the charges framed against them. Appellants Shankar and Vikash who are in custody, be set at liberty forthwith, if not required in any other case.

In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants Shankar S/o Shri Maluram, Lokesh Pareek S/o Lalit Kumar Sharma and Vikash Pareek S/o Lalit Kumar Sharma are directed to furnish a personal bond in the sum of Rs.25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation 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.