State Of Rajasthan vs Prakash

1.

The State of Rajasthan has preferred the instant application under Section 378 (iii) and (i) CrPC seeking leave to file an appeal against the judgment

dated 14.09.2016 passed by the learned Sessions Judge, Jodhpur Metropolitan in Sessions Case No.74/2014, whereby the respondent Prakash S/o late

Mr. Mula Ram was acquitted from the charges under Section 302 and 201 read with Section 302 IPC.

We have heard and considered the submissions advanced by the learned Public Prosecutor and the learned Amicus Curiae Mr. Vinod Sharma and

have gone through the impugned judgment.

We find that the entire prosecution case is based purely on circumstantial evidence. Deceased Prakash, aged about 8-9 years, deceased son of the

first informant Shrawan, went missing from his house located at Jhopadpatti Sector 9, Near Baba Ramdev Temple, Sangaria, Police Station Kudi

Bhagtasni about 5 days before the date of lodging of the report, i.e. 14.05.2014. The first informant alleged that the accused respondent Prakash,

being his cousin (Bua ka ladka) had hurled an insinuation that his son Prakash would not be traced out and that he should abandon his hopes. The first

informant received an information on 14.05.2014 that the dead body of a child was lying in Vivek Vihar. He went there and got shocked on seeing the

dead body. Thereafter, he alongwith all the family members went to the hospital and identified the body to be that of his son Prakash. The dead body

was subjected to postmortem. Initial investigation was conducted by the Investigating Officer Mr. Pramod Sharma, S.H.O. and later on handed over

to Mr. Govind (P.W.9), Sub-Inspector. Site inspection plan and other formal documents (Ex.P/3 to Ex.P/7) were prepared. The statements of the

material witnesses were recorded. The accused was arrested and acting in furtherance of the information provided by him to the Investigating

Officer, the alleged weapon being a blood stained stone was recovered vide memorandum (Ex.P/10). After conclusion of investigation, a charge-sheet

came to be filed against the respondent for the offences under Sections 302 and 201 IPC. The case was committed to the Court of Sessions Judge,

Jodhpur Metropolitan for trial. Charges were framed against the accused-respondent for the offences under Sections 302 and 201 read with Section

302 IPC. He pleaded not guilty and sought trial.

The prosecution examined as many as 11 witnesses and exhibited 23 documents to prove its case. Upon being confronted with the circumstances

appearing in the prosecution evidence, the accused denied the same and claimed to be innocent. 5 documents were exhibited, but no oral evidence

was led in defence. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, the

learned trial court proceeded to acquit the accused respondent by the judgment dated 14.09.2016, against which the State has approached this court

through this application seeking leave to file an appeal.

We have heard and considered the submissions advanced by the learned Public Prosecutor and the learned Amicus Curiae and have carefully gone

through the impugned judgment. We find that the entire prosecution case is based on circumstantial evidence.

The trial court discussed the medical evidence at para 15 of the judgment and held that even from the medical evidence, it could not be conclusively

established that the death of the child was homicidal because the dead body had decomposed completely and the histopathology report also turned

negative.

The complainant Shrawan (P.W.2) alleged in his evidence that the accused was his cousin (Bua ka ladka). The accused had threatened the child

Prakash and also the witness himself declaring that he should forget his kid. The accused was apprehended by the police, but later on he was released

because while uttering these words, he was intoxicated. The witness made a conjecture that the accused had killed his son Prakash by hitting him with

a stone. The witness claimed that he had filed complaint for the offences of theft committed by the accused and his brother and thus, owing to this

enmity, his son had been killed by the accused. However, no such complaint was proved by the prosecution. In cross-examination, the witness

admitted that five days before lodging of the report, he sent his son to buy vegetables in the morning at 7 o’clock and thereafter, he was not seen

alive. No missing person report was lodged even though the child was missing for quite a long period. Thus, the allegation that the accused had

threatened the complainant and his family members of dire consequences gets diluted by the fact that even though the child went missing almost 5

days earlier, no missing report was lodged with the police. The witness was confronted with his previous statement and the FIR regarding certain

omissions.

Soni Devi (P.W.4), being the mother of the complainant alleged that the accused had taken Prakash away from the shop and then threatened that

they should forget him. However, in cross-examination, she admitted that when the deceased had been sent to buy vegetables, she was not present in

the house, instead, she had gone with her other son Banti for singing Bhajans and ‘Pabu Ji Ki Pad’ in Village Dhundhara.

Kamli Devi (P.W.5), being the mother of the deceased, also gave similar evidence and alleged that the accused threatened them that they should

forget her son. This witness also admitted in her cross-examination that on the day when her son went to buy vegetables, she had accompanied her

mother-in-law Soni Devi and brother-in-law Banti and had gone to another village.

In this background, it is apparent that other than the allegation that the accused got the blood stained stone, with which he allegedly hit the child,

recovered in furtherance of the information provided by him to the Investigating officer under Section 27 of the Evidence Act, there is no other

evidence on record to connect him with the alleged crime. The stone was admittedly recovered from an open plot accessible to all and sundry. It is an

admitted case as revealed from record that in the intervening period, incessant rains had taken place and thus, the possibility of the stone still being

stained with blood was almost impossible. Therefore, we are of the firm opinion that the prosecution failed to place even a semblance of evidence on

record so as to establish the guilt of the accused. In our considered view, the trial court appreciated the evidence available on record in an apropos

manner while discarding the prosecution case and acquitting the accused by the impugned judgment dated 14.09.2016, which does not suffer from any

infirmity whatsoever warranting interference therein. Thus, we are not inclined to grant leave to the State of Rajasthan for filing an appeal against the

impugned judgment.

Accordingly, the instant leave to appeal application is rejected as being devoid of merit. The impugned judgment dated 14.09.2016 passed by the

learned Sessions Judge, Jodhpur Metropolitan in Sessions Case No.74/2014 is affirmed. The respondent (acquitted accused) Prakash S/o Mula Ram

was sent to judicial custody vide order dated 24.01.2020. He shall be released from prison forthwith, if not wanted in any other case.