DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT State of Rajasthan. vs. Nageshwar D.B. CRIMINAL APPEAL NO.612/2005 AGAINST THE JUDGMENT AND ORDER DATED 1.4.2005 PASSED BY SHRI UMA SHANKER VYAS, ADDITIONAL SESSIONS JUDGE (FAST TRACK), CHITTORGARH IN SESSIONS CASE NO.61/2004. DATE OF JUDGMENT ::: July 31st, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. SANGEET LODHA, J. Mr.JPS Choudhary, Public Prosecutor for State. Mr.BN Kalla, for the respondent. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned counsel for the parties. This appeal has been preferred by the State with DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 2 the leave of this Court as the respondent was acquitted by the Court of learned Additional Sessions Judge (Fast Track), Chittorgarh in Sessions case no.61/2004 by the judgment dated 1.4.2005 who was charged for committing offence under Sections 302, 302/120B, 302/34, 120B and 449 IPC. Brief facts of the case are that on 29.10.2003 at 7:30 AM, complainant Shanti Lal lodged a report at the Police Station Chanderiya stating therein that in the morning, his nephew Ratan Lal called him and told that his father (Hazari) is not in his bed where upon the complainant came out of his house and saw that his father Jeet Mal and his mother Dhapu Bai, who were sleeping in the Verandah, were lying dead. In the report, it is stated that they have been killed by some unknown persons by sharp edged weapons. Complainant reported the incident to police on telephone and started for search his brother Hazari, who was found lying dead in an agricultural field near his house. The incident occurred after 10:00 PM of previous night. On this oral report, which was entered as Ex.P/7, FIR No.390/2003 (Ex.P/72) was registered and investigation started. During the investigation, from the hand of Hazari, a paper unsigned slip was recovered wherein threat was given in writing. Accused respondent was DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 3 arrested on 23.4.2004 i.e. after six months from the time of incident. The copy (Ex.P/68) from which it is alleged that the paper was taken out for writing the threat was recovered at the instance of the respondent. The respondent's specimen handwriting was also taken in the presence of the Tehsildar Chittorgarh PW48 Manvendra Kumar Sharma, and the original slip (Ex.P/11) which was recovered from the hand of victim Hazari and specimen handwriting of respondent were sent for obtaining handwriting expert's opinion from FSL. The opinion of handwriting expert was received with findings that the handwriting on slip Ex.P/11 are of the same person who is author of specimen signature that is of the accused. Therefore, the investigating agency submitted charge-sheet against the respondent accused for offence under Sections 302, 459 and 120B IPC. The investigation against accused Doman Paswan was kept pending as he was absconding. It will be relevant to mention here that the prosecution proceeded and found the evidence against one Badri Lal also, as the witnesses during investigation disclosed that Badri Lal used to visit the house of deceased Jeetmal and developed illicit relations with one Smt. Meera, daughter of Ram Lal and Smt. Meera became pregnant. All victim deceased Jeet Mal, Dhapu and Hazari are Meera's grand father, grand DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 4 mother and elder brother respectively. However, she instead of delivering the child, got abortion. Because of this, Hazari and his brother Madan Lal (who was also already murdered before this incident by unidentified person) quarreled with Badri Lal. Jeet Mal and Hazari used to scold Badri Lal and Badri Lal used to give threats to Jeet Mal and Hazari. However, during investigation, Badri Lal committed suicide. In addition to evidence against the said Badri Lal, the prosecution got evidence in investigation against respondent Nageshwar who had no connection with the motive of Badri Lal. The story against accused Nageshwar is independent to story against Badri Lal. As per prosecution, slip Ex.P/11 shows conspiracy of respondent accused with one Doman Paswan in killing the three victims. Challan has not been filed against said Doman Paswan as he could not be arrested. Though the charge against the respondent has been framed for Section 302 IPC and in alternative, under Section 302/34 as well as 302/120B, 449 and 120B IPC. All above charges have been framed on the basis of one slip (Ex.P/11) found tied on the hand of victim Hazari, therefore, either accused Nageshwar himself has murdered three persons or conspired to eliminate above three persons or in the alternative, with common intention with Doman Paswan, committed murder of three DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 5 persons – Jeet Mal, Hazari and Dhapu Bai. The trial court acquitted the accused respondent for committing of the offence for all above charges. Hence, this appeal has been preferred by the State against the trial court's judgment dated 1.4.2005. Learned Public Prosecutor vehemently submitted that a slip (Ex.P/11) was recovered from the hand of dead body of Hazari. This slip was on the paper of a copy Ex.P/68 which was got recovered in pursuance of the information given by the respondent under Section 27 of the Evidence Act. An inland letter (Ex.P/69) written in the handwriting of accused was also recovered at the instance of the respondent. PW48 Manvendra Kumar Sharma, Tehsildar Chittorgarh proved the fact that the specimen handwriting of the respondent was taken in his presence (Ex.P/83 to Ex.P/97). These specimen handwritings along with the slip (Ex.P/11) recovered from the body of deceased were sent for the opinion of handwriting expert from FSL. The FSL report on disputed slip Ex.P/11 and specimen handwriting were of the respondent as per the opinion given by FSL Ex.P/82. It is submitted that the accused failed to give any explanation as to how a slip in his handwriting came tagged on the hand of the deceased. DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 6 Learned counsel for the respondent supported the judgment of the learned trial court and stated that the respondent has been falsely implicated in this case. We considered the submissions of learned counsel for the parties and perused the record and the reasons given by the trial court in the impugned judgment. The only evidence against the respondent for connecting him for the crime or for hatching conspiracy or for having common intention for eliminating three persons is the slip Ex.P/11. Otherwise, the prosecution witnesses PW24 Bali Devi, who is wife of Badri Lal, PW25 Sabir Ali, PW31 Bilal and PW49 Ratni Bai clearly stated that Badri Lal developed illicit relations with Smt. Meera and Smt. Meera became pregnant. PW26 Smt. Meera herself stated on oath that Badri Lal used to visit her as Badri Lal's wife left Badri Lal. She developed illicit relations with Badri Lal and became pregnant and got abortion and this fact was in knowledge of her relatives and all others including her family members and Badri Lal used to threaten the victim and his family members. PW26 Meera clearly stated that the doubt for killing these three persons was only upon Bardi Lal and he was called for DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 7 interrogation and thereafter, Badri Lal committed suicide. PW28 Rajendra Kumar and PW29 Shanti Lal stated that the house of Badri Lal was searched and from his house, Baniyan, Pant, Towel, Chaddar, Handkerchief and Sandals were recovered and seized and for that purpose, seizure memo Ex.P/39 was prepared. However, PW28 Rajendra Kumar in his cross examination stated that Badri Lal committed suicide before the said recovery vide Ex.P/39. Badri Lal's wife Smt. Prem (PW3) stated that she heard that her husband was killed. She was declared hostile because she denied that in the police statement Ex.P/40, she stated that her husband died by consuming poison (suicide). Therefore, it appears that even the prosecution's own case was that the investigation proceeded against Badri Lal but he committed suicide and thereafter, the prosecution diverted the allegations towards the respondent and he was arrested after the death of Badri Lal on 23.4.2004 that is after six months from the date of incident dated 29.10.2003. The information which is alleged to have been given by the respondent under Section 27 of the Evidence Act (Ex.P/74) has been considered by the trial court carefully and from the language of the said information Ex.P/74, the trial court found that as per DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 8 prosecution, the accused gave information that about six months' ago, at the instance of Doman Paswan s/o Kuldeep Paswan r/o Amba of Bihar, he wrote a threat letter about killing of Shanti Lal on a paper from a copy which he has kept in his room which he took on rent from Peeru Khan. From this information Ex.P/74, the only inference can be drawn that at the instance of one Doman Paswan, the respondent wrote a threatening letter for Shanti Lal. The slip is in Hindi language and its translation is “that Hajari's children have been spared but yours will not be spared. As Madan went (killed), in the same manner, you will also go..... As Shanti Lal you will also be not spared. As my house ruined. You will also be made to ruin Goverdhan will be spared. Shanti Lal your children will not be spared. Even if four-five lacs may be spent but you will not be spared. Whenever you will be killed, you will be killed on road.” There is no evidence on record that any Doman Paswan or accused Nageshwar had enmity with complainant or complainant's family members or any of them were ruined or harmed by any of the member of the complainant's family. The prosecution did not produce any evidence to show slightest reason for accused's committing this crime, nor produced any evidence, may DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 9 be circumstantial, to have any link of accused with said Doman Paswan. The FSL report Ex.P/82 is to the effect that the slip recovered tied on the hand of Hazari Ex.P/11 had same handwriting which is as of respondent's handwriting. But the respondent in his statement under Section 313 Cr.P.C. stated that after his arrest, a slip was obtained by the police by his torture. Be it as it may be, the slip recovered from deceased Hazari has not been identified by the independent witnesses PW1 Satya Narayan and PW35 Hira Lal, who were not shown the contents of the slip when it was recovered from the hands of deceased Hazari. As per the prosecution witnesses, the photocopies of slip Ex.P/11 were also obtained and in view of the evidence of the prosecution witnesses themselves, there was no photostat copy shop near the place of incident, therefore, the slip was sent for photocopy to a distant place but with whom that slip was sent, has not been disclosed. The prosecution witnesses's said statement was contradicted by PW44 Madan Singh himself and he stated that the slip was sealed then and there. Neither photostat copy nor the slip itself was got signed by the witnesses and, therefore, it is unsafe to believe that the same slip (Ex.P/11) was recovered by the prosecution from the hand of the deceased. The slip DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 10 Ex.P/11 was not properly kept before sending it to the FSL. The prosecution's own witnesses as Malkhana Incharge PW14 Udai Singh admitted that there is no entry of putting the seal in the malkhana and, therefore, even the seal was not kept properly. As per the prosecution evidence, the Slip Ex.P/11 was sent to the FSL on 14.5.2004 with constable Balu Ram who reached to the FSL on 15.5.2004. FSL raised objection Ex.D/2 and returned the sample back with a remark that the recovered copy should have been sent with sealed cover whereas it contains no seal. Thereafter, Malkhana was opened and after putting some mark on Ex.P/11, the samples were sent again to FSL on 26.5.2004 which were also returned back with the objections and thereafter, the documents were again sent to the FSL. From the above, it is clear that after recovery of slip Ex.P/11 and after putting seal over it, seals were opened twice but not in presence of any witness. Since the slip Ex.P/11 is the only evidence on the basis of which the prosecution sought to connect the respondent with the crime and that document itself was neither in the proper custody nor can be said to be sufficient proof for committing crime by the respondent. At this place, it will be worthwhile to mention here that even the prosecution's own case was proceeding against deceased Badri Lal and after his DB Criminal Appeal No.612/2005 (State of Raj. vs. Nageshwar) 11 death, it appears that the challan has been filed against the respondent. In addition to the above, the prosecution in the facts and circumstances, failed to show any motive of the respondent for committing the crime of killing three persons. There is no evidence that the respondent and Badri Lal conspired to do the crime. The evidence Ex.P/11 is also not sufficient evidence for drawing inference of hatching a criminal conspiracy by the respondent. In view of the above, the trial court rightly acquitted the respondent. In view of the above discussion, we do not find any merit in this appeal. Accordingly, the appeal of the appellant State is dismissed. The appellant is already on bail. He need not to surrender and his bail bonds are cancelled. (SANGEET LODHA), J. (PRAKASH TATIA), J. S.Phophaliya