1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT GAJANAND vs. STATE OF RAJASTHAN. D.B. Criminal Jail Appeal No.701/2004 against the judgment and order dated 22.06.2004 passed by the Additional Sessions Judge, Deedwana in Sessions Case No. 06/2003. ................. Date of Judgment: 21 __th July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.K.R.Bhati for the appellant. Mr.A.R.Nikub, Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): Accused appellant Gajanand s/o Leelu, by caste Chamar, r/o Kasampura ,Police Station Bagar, District Jhunjhunu has preferred this appeal against the judgment of conviction and the order of sentence dated 22.06.04 passed by the Addl. Sessions Judge Deedwana in Sessions Case No.06/2003. The nub of the prosecution story is that on 04.12.02 injured Gajanand reported orally at Police Station Molasar that he had been a cleaner in truck No. H.R.61-0457 for the previous three months , the truck driver was Kesardev and the 2 truck belonged to Ram Karan Jat. He, along with driver Kesardev, started from Parbatpura four days after Diwali. In the evening of the day before reporting, they loaded gwar-ki- churi in the truck at Sivani and started for Vijaynagar at 06.30 PM. At 12.00 in the night, they took a hotel in Jhunjhunu Depot. Then they went to Adgasar, where the driver went home to sleep and the complainant slept in the truck itself. In the night at about 02.00 AM, they started from Adgasar for Vijaynagar. In the morning at 04.00 or 05.00 AM when they were going towards Deeedwana, after crossing Banwasar Circle, a D.I.Jeep came chasing them and was parked in front of the truck in such a way as to stop the truck. There were 5 to 6 persons in the jeep. All the 5 to 6 persons demanded the money lying with the driver. Three persons from the side of the driver entered the truck. Frightened by this incident, immediately the complainant jumped from the truck and ran towards the nearby fields. After some time, on being called by him, two persons from the near by Well came up to help him and all the three of them went near the truck. The body of Kesardev was found between the seat and the bonnet of the truck. There were injuries on the head of the deceased and the blood was oozing . The tool box of the truck was lying open. The jeep was not there. The persons who had come in the jeep, after demanding money from the driver, caused his death and looted all the money which Kesardev had with him . He could not read the number of the jeep as he was an illiterate . One person out of those, was wearing a blue coloured jacket. The accused were of about 20-25 years of age. On the basis of the oral report, Ex.P/15, FIR, criminal case No.126/2002 under section 396 IPC 3 was registered and the investigation commenced. On the basis of suspicion, the lodger of the FIR, Gajanand was arrested and information under section 27 of the Evidence Act was recorded by the Investigating Officer and in pursuance of the information of the accused appellant, the weapon of offence and money were recovered and after usual investigation, a charge sheet of commission of offence under section 394 and 302 IPC was presented in the court of Addl.Chief Judicial Magistrate, Deedwana from where the case was committed for trial to the court of Addl. Sessions Judge, Deedwana. The learned trial Court, framed charges against the accused appellant Gajanand under sections 302 and 394 IPC to which he denied the charges and claimed to be tried. The prosecution, in support of its case, examined 15 witnesses , namely, PW/1 Umed Khan, PW/2 Danaram, PW/3 Nathu Ram, PW/4 Bajrrang Lal, PW/5 Bhaguram, PW/6 Dr.Arvind Bohra, PW/7 Madho Singh, PW/8 Govind Ram, PW/9 Budharam, PW/10 Richhpal Singh, PW/11 Sanjay, PW/12 Ramkaran, PW/13 Lichhmanram, PW/14 Sunita, PW/15 Harphool, PW/16 Hukmaram, PW/17 Rameshwar Singh, PW/18 Dharampal , PW/19 Kamalkishore, PW/20 Rawtaram, PW/21 Nanuram, PW/22 Apdaram, PW/23 Sohanram, PW/24 Ganpatpuri, and PW/25 Jitendra Singh and also produced documentary evidence. 4 The statement of the accused appellant Gajanand was recorded under section 313 Cr.P.C., wherein he stated that he had been falsely implicated in the criminal case. After hearing the learned counsel for the accused appellant and the learned Public Prosecutor and appreciating the evidence on record, the learned trial Court, vide impugned judgment and order dated 22.06.2004 convicted and sentenced the accused appellant Gajanand , for the offence under Sections 302 and 394 IPC and for the commission of offence under section 302 IPC sentenced to imprisonment for life and a fine of Rs. 1000/-,and in default of payment of fine, to further undergo two months' simple imprisonment and for the commission of offence under section 394 IPC, sentenced to ten years' rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo four months' simple imprisonment. We have heard learned counsel for the appellant and the learned Public Prosecutor for the State, carefully gone through the impugned judgment and order, as also the record of the case. The learned trial court convicted the accused appellant for the commission of offence under section 302 and 394 of the Indian Penal Code, on the basis of circumstantial evidence available on record because it is the admitted position that there is no eye witness of the alleged offence. The learned trial Judge appreciated the evidence of PW/10 Richhpal Singh and PW/14 Sunita and reached to the conclusion that the 5 accused appellant, on the day of incident, was last seen with deceased, by both these persons just after starting from his residence. In the next day morning, the deceased was found dead in the truck and thus, the learned trial Judge drew an inference by the fact of the last seen alive, both together. The second circumstantial evidence, which the learned trial Judge appreciated is, regarding recovery of the looted amount of Rs.1,000/- recovered at the instance of the accused in pursuance to the information recorded under section 27 of the Indian Evidence Act. He further appreciated the evidence of the recovery of weapon of offence and also Ex.P/9, the report of the Forensic Science Laboratory, regarding finding of the same blood group on the clothes of the deceased and on the clothes which were worn by the accused at the time of the commission of offence. Further, the learned trial Judge found that the motive to cause the death of the deceased was to loot the cash money available with the driver. The contention of the learned counsel for the accused appellant is that a completely unreliable circumstantial evidence is available on record and on the basis of that evidence, the learned trial Judge reached to the conclusion of finding the accused guilty for the commission of offence under section 302 and 394 IPC. As per the learned counsel for the accused appellant, just after the incident, accused appellant went to the neighbouring fields and he called PW/8 Govind Ram and PW/9 Budharam . This bona fide act of the accused or the 6 conduct of the accused itself shows that he was not responsible for causing the death of deceased because had he been responsible for causing the death of the deceased, there would have been sufficient time to abscond from the place of incident, whereas even after bringing these two witnesses, he himself informed the police regarding the commission of offence through Ex.P/15. The learned counsel for the accused appellant also argued that the accused was arrested on 18.12.02 whereas the date of the incident was 04.12.02 and there was no reason for the accused appellant to keep the blood stained pant with him for so long .This also impeaches evidence of the recovery of the investigating officer. The learned Public Prosecutor, vehemently defended the judgment of the learned trial Judge and argued that the judgment of the learned trial judge, is based on unimpeachable evidence and there is complete chain of evidence against the accused appellant. We have considered the rival contentions raised by learned counsel for both the parties and also evaluated and scanned the evidence on record. It is a settled principle of law that when there is only a circumstantial evidence against the accused, the prosecution must prove each essential circumstance, by leading trustworthy evidence and the circumstances so proved, must 7 constitute an unbreakable chain leading towards infallible conclusion about the guilt of the accused as the circumstances so proved, should be consistent with the guilt of the accused and also exclude every other hypothesis however , of guilt of any other person, except that of the accused appellant. In view of the above, if we see the evidence available on record, as per the cross-examination of PW/25 Jitendra Singh, who is also the investigating Officer and who received Ex.15 first information report, it is clear that even before receiving Ex.P/15 report, there was a communication received regarding the alleged incident from Losar Police Station and PW/25 Jitendra Singh further deposed that the information so received , is lying in the Rojnamcha of the police station Molasar. That information had not been proved by the prosecution. The second fact is that police, during investigation, interrogated PW/8 Govind Ram and PW/9 Budha Ram, who came to the place of the incident with the accused just after the incident, on the call of the accused appellant. They have not deposed anything about this fact that at that time the pant worn by the accused appellant contained blood spots. The subsequent behaviour of the accused, just after the incident, creates serious doubt about the reliability of the prosecution story . Had the accused been involved in the commission of offence, he would not have gone to the adjoining fields for seeking help of any person. Further , the fact that after about eight days of the incident, accused appellant kept the blood stained pant safely so as to hand it over to the investigating officer, is also not reliable. 8 In view of the aforesaid discussion , the recovery in itself is doubtful because no sane person will keep and preserve an incriminating evidence with him for such a long period and after the incident produce that evidence to the police officer at the time of arrest itself. There is no other incriminating evidence against the accused. Rather his conduct as disclosed in the testimony of PW/8 Govind Ram and PW/9 Budha Ram, strongly supports the defence version that the assailants were some unknown persons and threatened Gajanand, left the spot for procuring help. In these circumstances, the police rojnamcha dated 04.12.02 goes against the prosecution because it was that document only, on the basis of which, the investigating officer rushed to the place of incidence and the aforesaid circumstance, creates serious doubt regarding prosecution story and the entire prosecution story cannot be relied upon but rather it creates serious doubt regarding the genesis of the prosecution story. In view of the above discussion, as the prosecution story is found doubtful and the doubt demands for extending benefit in favour of the accused appellant. In the result, this appeal deserves acceptance, therefore, the same is allowed and the judgment and order of learned Addl. Sessions Judge, Deedwana dated 22.06.04 is quashed. The conviction recorded in the judgment aforesaid and the sentence awarded is also set aside. As a result , the accused appellant Gajanand s/o 9 Leelu who is at present in judicial custody, be set at liberty forthwith, if not required in any other case. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george