-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL APPEAL NO.762/2006 (Jagdish @ Jagga Ram Vs. The State of Rajasthan) D.B. CRIMINAL APPEAL UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT DATED 26.07.2006 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.2, JODHPUR IN SESSIONS CASE NO.41/2005. DATE OF JUDGMENT : 11th January, 2008 P R E S E N T HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Vineet Jain ) Mr. Hanuman Khokhar) for the appellant. Mr. JPS Choudhary, Public Prosecutor. Mr. Vijay Singh for the complainant. BY THE COURT : (PER MR. THANVI,J.) 1. This appeal is directed against the judgment dated 26.7.2006 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jodhpur, whereby, he convicted and sentenced the accused appellant as under: -2- 1. Under Section 302 IPC - Life imprisonment and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo six months' rigorous imprisonment. 2. Under Section 404 IPC - Six months' rigorous imprisonment and to pay a fine of Rs.1,000/- in default of payment of fine to further undergo one month's simple imprisonment. 2. Facts leading to this appeal are that on 2.5.2004, Manga Ram PW-5 lodged a written report at police station, Bhopalgarh that his younger brother Jeevan Ram who is running a tea shop at bus stand Surpura Khurd, left the house on 1.5.2004 at about 7.30 pm with black hand bag and did not return till night. In the next day morning, some villagers informed that a dead body is lying on the road going towards Paldi to Ranawas. He went on the spot and saw his brother's dead body. 3. Upon this, police registered a case for offence under Sections 302 and 404/34 IPC. After usual investigation, police filed challan against accused appellant Jagdish @ Jagga Ram and Narayan Ram for offence under Sections 302, 302/34 and 404 read with Section 34 IPC. After committal of the case, the learned trial judge framed the charges against appellant Jagdish for offence under Sections 302 and 404/34 IPC and against -3- accused Narayan Ram for offence under Sections 302/34 and 404 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined 30 witnesses. Statements of accused were recorded under Section 313 Cr.P.C. They produced three witnesses in defence. 4. After hearing the arguments, the learned trial judge acquitted accused Narayan Ram for the charges levelled against him but convicted accused appellant Jagdish @ Jagga Ram for offence under Sections 302 and 404 IPC, against which this appeal has been filed. 5. We have heard learned counsel for the accused appellant, learned Public Prosecutor and gone through the record of the case. 6. It has been contended by the learned counsel for the accused appellant that there is no eye witness of the case and the whole case is based on the evidence of last seen, which is not reliable. In addition to this evidence of last seen, the prosecution has tried to prove the guilt against accused appellant on the basis of foot moulds, recovery and extra judicial confession, but that evidence is also not reliable, therefore, the learned trial judge has committed great error in relying upon the -4- circumstantial evidence. 7. On the contrary, learned Public Prosecutor has supported the judgment of the learned trial court. 8. Having perused the evidence on record, it appears that of- course it is not a case of direct evidence but it is based on the circumstances like last seen, foot moulds, recovery and extra judicial confession. When the case is based on the circumstantial evidence, the Court while arriving at a conclusion of the guilt of the accused, the circumstantial evidence must be fully established in a chain and must be of conclusive nature. It is of- course true that the dead body of the deceased Jeevan Ram was found on the Surpura-Paldi road and there were injuries on his scalp and blood was coming from the ears and his clothes were also blood stained. There were also foot moulds of two to three persons near the spot. When the dead body was examined by Dr. Deepak PW-19 on 2.5.2004, he opined in his report Ex.P-23 that cause of death is comma due to head injury. Therefore, it is established from the prosecution evidence that the death was homicidal. 9. Now, the next question to be looked into is as to whether accused appellant is guilty for the same or not. If we turn to the -5- evidence on record, first is the evidence of last seen. In this regard, there are six material witnesses namely Shanti PW-3, Keshi PW-4, Manga Ram PW-5, PW-6 Deva Ram, Manak Ram PW-14 and Mangi Lal PW-15. Shanti PW-3 has stated in the last line of her cross examination that it is true that she did not see Jeevan Ram and Jagdish together. Smt. Keshi PW-4 has also stated in the cross examination that on the day of occurrence, she did not see deceased Jeevan Ram going from the house in the evening. Manga Ram PW-5 has stated that he saw Jeevan Ram going alone from the house in the evening at 5 pm on 1st May with black bag but in the cross examination, he has stated that he saw deceased Jeevan Ram going alone from the house in the evening at 7.30 pm and Deva Ram PW-6 also told him that he saw deceased Jeevan Ram going alone from his house, to which Deva Ram PW-6 replied in positive in his cross examination. Manak Ram PW-14 has stated that he saw the appellant and deceased together at the flour mill of Mangi Lal PW-15 on 1.5.2004 at 3.30 pm and again at 9.30 pm near the Gaderi turn. At that time he was having black bag in his hand, but when this witness was cross examined with his police statement Ex.D-2, he said that the fact of seeing accused appellant Jagdish at 3.30 pm is not there in the police statement and also of 9.30 pm at Gaderi Phatak. When his evidence of not seeing Jagdish is contradicted in police statement Ex.D-2, then -6- the reasonable inference which can be drawn is that he has improved his version. The owner of the flour mill Mangi Lal PW- 15 has also stated that the fact of his seeing Jagdish with Jeevan Ram has not been mentioned in Ex.D-3, the statement of police recorded under Section 161 Cr.P.C. When the prosecution witnesses have resiled in the cross examination about the fact of last seen of deceased and accused together during cross examination and contradicted during police statements, then there statements in chief about last seen can be categorized as improved statements and this type of evidence cannot be the basis for conviction. The finding of the learned trial judge on this count is perverse. The learned trial judge did not rely upon the contradictions because of not asking questions to the Investigating Officer but the fact of putting the statements Ex.D-1 to 3 before the Investigating Officer – Deravar Singh PW-29 is existing in the cross examination of the Investigating Officer and are proved. 10. Coming to the testimony of foot moulds, the learned trial judge himself has came to the conclusion that the evidence of foot prints is not reliable because the foot prints were not fit for taking moulds. Further, it was not clear as to whether the foot prints were of shoes, chhapel or naked legs. Thus, the evidence of foot moulds is not reliable as they were not sealed on the spot -7- for sending to the chemical examination. 11. Now, comes to the evidence of recovery. The evidence of recovery is of a corroborative nature which has been made from the dhani. According to the cross examination of Hema Ram PW-12 accused Jagdish resides at the distance of one kilometer from this dhani. Shiv Narain PW-21 has stated that dhani was not inhabited. Sukh Ram PW-25 before whom the identification was made has stated that all articles were brought by the police which were alleged to have been recovered and mixed. Ram Prasad PW-26 who is a goldsmith has stated that there was no identification mark on timaniya Article-1. Mangu Khan PW-30 who is also an Investigating Officer has stated that articles which were recovered vide Ex.P-16 were not put for identification parade. In this way, the evidence of recovery is also not reliable to connect the accused with the commission of crime. 12. Lastly, we turn to the evidence of extra judicial confession, which is said to have been made before Shimbhu Ram PW-16 and Jai Ram PW-17. Shimbhu Ram PW-16 has disclosed the fact of extra judicial confession, which is said to have been made by accused Jagdish @ Jagga Ram about killing Jeevan Ram, but he disclosed this fact to the police after six months and twenty days as stated by him in his cross examination. He further stated in -8- his cross examination that he did not talk with Jagdish except seeing him. Likewise, Jai Ram PW-17 has also disclosed about extra judicial confession made by accused appellant Jagdish about killing Jeevan Ram after four to five months, when police recorded his statement on 22.11.2004 and he also stated that this fact of extra judicial confession has been made at the instance of, Shimbhu Ram who has been examined as PW-16. This type of extra judicial confession made after a long period before the police and specially when there are no relations of the accused with the witnesses cannot be acted upon as a conclusive proof of guilt. Thus, we are of the view that the learned trial judge has not appreciated the evidence in its right perspective and based his finding on conjectures. 13. Consequently, we allow this appeal. The judgment dated 26.7.2006 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jodhpur is set aside. Appellant–Jagdish @ Jagga Ram son of Teja Ram is acquitted of the charges for offence under Sections 302 and 404 IPC. He is in jail. He shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI),J. (BHAGWATI PRASAD),J. ms rathore -9- D.B. CRIMINAL APPEAL NO.762/2006 (Jagdish @ Jagga Ram Vs. The State of Rajasthan) 11.01.2008 HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Vineet Jain ) Mr. Hanuman Khokhar) for the appellant. Mr. JPS Choudhary, Public Prosecutor. Mr. Vijay Singh for the complainant. Judgment was dictated in open court today, the operative portion whereof runs as under:- “Consequently, we allow this appeal. The judgment dated 26.7.2006 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jodhpur is set aside. Appellant–Jagdish @ Jagga Ram son of Teja Ram is acquitted of the charges for offence under Sections 302 and 404 IPC. He is in jail. He shall be released forthwith, if not required in any other case.'' (See Separate Judgment) (DEO NARAYAN THANVI),J. (BHAGWATI PRASAD),J. ms rathore