DB Criminal Leave to Appeal 122/2008 State of Raj. Vs. Shyam Sunder & Ors. [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH D.B. Criminal Leave to Appeal No.122/2008 State of Raj. Versus Shyam Sunder & Ors. DATE OF ORDER : 04/10/2010 HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE S.S.KOTHARI Mr. J.R. Bijarnia, P.P. for the appellant-State *** This criminal leave to appeal has been preferred by the State seeking leave to appeal against the judgment of the learned Additional Sessions Judge [Fast Track] No.2, Dholpur dated 01/06/2007 in Sessions Case No.11/2006 whereby the learned trial court has acquitted the two accused-respondents Shyam Sunder S/o Shri Banshidhar and Smt.Meera W/o Shri Keshav for the offence under Sections 302/34 and 201 IPC. We have perused the judgment as well as the record and heard the learned Public Prosecutor. The present one was a case of circumstantial evidence in which the circumstances as enumerated by the trial court in Para 18 of the judgment, are those of last scene, pointing out of place of incident by the accused, recovery at the instance of the accused and motive. So far as the evidence of last scene is concerned, the learned trial court has dealt DB Criminal Leave to Appeal 122/2008 State of Raj. Vs. Shyam Sunder & Ors. [2] with the prosecution evidence in extenso and has come to the conclusion that none of the prosecution witnesses has stated that the accused were seen along with the deceased. Whatever evidence has come is by way of accused having been seen with the deceased ten days prior to the incident and two days prior to the incident after which he has already as per prosecution case returned home and on the fateful day he is stated to have left home stating that on account of “Bhai Dooj” he is going to his sister's place. Thus, from the prosecution evidence itself after the deceased was seen with the accused, he has returned home and had left his house on the fateful day stating that he is going to his sister's place and after he had left his home, he has not been seen with the accused. In view of the above, the learned trial Court has rightly, in our opinion, also discarded the circumstance of last scene against the accused. So far as the identification of the place of incident at the instance of the accused is concerned, the learned trial Court has come to the conclusion that this place was already known to the Investigating Officer and the Police at the time when they recovered the dead body from the DB Criminal Leave to Appeal 122/2008 State of Raj. Vs. Shyam Sunder & Ors. [3] well, as such, not much importance can be given to the aforesaid piece of evidence or circumstance. So far as the recovery of articles is concerned, admittedly no recovery of any article whatsoever has taken place at the instance of the accused Smt.Meera. The alleged recovery of wrist watch has been discarded by the learned trial Court and in our opinion, rightly so, as after the recovery was made, the said article was not sealed and no identification of the articles was carried out after mixing it with any similar wrist watch or articles. At the same time, the learned trial Court has also rejected the evidence relating to the recovery based upon the evidence of PW- 10 & PW-11 who are the relatives of the deceased and hence interested witnesses and there is a total contradiction between the statements of these two witnesses i.e. PW-10 & PW-11 and that of the PW-23, the Police Officer who proceeded to make the recoveries on the said day. The learned trial Court has taken note of the aforesaid contradictions and also the fact that no identification of the article recovered was carried out and as such, the aforesaid piece of evidence has, in our opinion, rightly been rejected. DB Criminal Leave to Appeal 122/2008 State of Raj. Vs. Shyam Sunder & Ors. [4] The another article that was recovered was the “Danda”. The learned trial court has came to the conclusion that since the “Danda” in question does not bear any blood stains, not much importance can be given to the aforesaid article so as to link the same with the alleged offence. The next article recovered is piece of brick which is said to be blood stained. This is said to have been recovered at the instance of the accused Shyam Sunder. It may be pointed out that the aforesaid recovery was also made in the presence of motbir witness PW10 and PW11 and there is inherent contradictions between the testimony of the aforesaid witnesses who are highly interested. Apart from the above, the aforesaid brick cannot be helpful till such time as it is not proved that the alleged blood stains on the brick is human blood and of the same group as of the deceased. In absence of the aforesaid piece of evidence connecting the blood on the brick as that of the deceased, the brick cannot be said to be the weapon used by the accused and recovered at his instance so as to connect the accused with the offence. Last circumstance in the chain of circumstantial evidence is that of the motive. We find that the learned trial Court has DB Criminal Leave to Appeal 122/2008 State of Raj. Vs. Shyam Sunder & Ors. [5] considered the aforesaid and rightly, in our opinion, rejected the theory regarding motive as set out in Para 48 of the judgment. In the facts and circumstances of this case, it cannot be said that the judgment of the learned trial Court and the conclusions arrived at by the learned trial Court based upon the appreciation of evidence produced by the prosecution cannot be said to be erroneous or one which could not have been arrived at by a reasonable person looking to the entire facts and circumstances and the evidence brought on record. The chain of circumstantial evidence cannot be said to be conclusive and raises a reasonable doubt whether the accused persons can be said to be held guilty on the basis of the aforesaid set of evidence. In the facts and circumstances, we find no merit in this application for leave to appeal, the same is, accordingly, dismissed. [S.S.KOTHARI],J. [DALIP SINGH],J. FRBOHRA122LEAVE TO APPEAL2008 4-10.doc