Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Mangi Lal. Versus State of Rajasthan. D.B. Criminal (Jail) Appeal No.819/2003 against the judgment and order dated 19.7.2003 passed by the Additional Sessions Judge (Fast Track), Jalore in Sessions Case No.95/2003 (4/2003). ... Date of Judgment: May 28, 2010 HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI ... Mr. Kalu Ram Bhati, for the appellant. Mr. A.R. Nikub, Public Prosecutor for the State. BY THE COURT (Per Hon'ble Joshi, J.) By the instant D.B. Criminal (Jail) Appeal, the appellant-accused has assailed the judgment and order dated 19-7-2003 passed by the Additional Sessions Judge (Fast Track), Jalore (for short, “the trial Court” hereinafter) in Sessions Case No.95/2003 (4/2003), whereby the appellant has been convicted for the offences under Sections 302, 364 and 201 IPC and sentenced to imprisonment for life and a fine of Rs.2000/-, in default of payment of fine to further undergo one year's simple imprisonment for the offence under Section 302 IPC; seven Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 2 years rigorous imprisonment and a fine of Rs.1500/-, in default of payment of fine to further undergo six months simple imprisonment for the offence under Section 364 IPC; and three years rigorous imprisonment and a fine of Rs.1000/-, in default of payment of fine to further undergo four months simple imprisonment for the offence under Section 201 IPC. The factual matrix of the case, in a nut shell, is that on 28.12.2002, complainant Seeta lodged a written report (EX.D/2) with Police Station, Jalore stating therein that 20 to 25 days before lodging of the FIR, her mother Smt. Phooli R/o village Dhawla was taken by appellant-accused Mangi Lal on the pretext that he would drop her to Jalore and on the same day, appellant Mangi Lal returned to village Dhawla and on being asked by the complainant, he told that her mother has been boarded to the bus going to village Chandana. After two to three days, her father Rawata came on 17.12.2002 to his in-laws house at village Samuja and asked about her mother then she told that she had gone to village Chandana eight days before, upon which her father told that her mother did not reach Chandana. On being asked to her sister, she told that she had not seen Smt. Phooli. Thereafter, on 19-12-2002, a report was lodged before the Superintendent of Police, Jalor, on which no action was taken. A day before the incident, appellant had manhandled the deceased, to which she raised objection, upon which the appellant also manhandled her which resulted in an injury on Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 3 her lips but since appellant is the husband of the complainant, she did not lodge any report to that incident. On lodging the report, the police registered FIR No. 3/2003 under Sections 365, 498-A, IPC and after investigation, filed Challan before the Additional Chief Judicial Magistrate, Jalore, from where the case was committed to the court of the learned Sessions Judge, Jalore and ultimately the case was transferred to the learned trial Court. The trial court framed charges under sections 364, 302, 201 and 379, in the alternative under Section 411 IPC, whereupon the appellant-accused did not plead guilty and claimed to be tried. In support of its case, the prosecution examined twenty witnesses and produced the documents EX.P/1 to EX.P/41. The statement of appellant-accused under Section 313 Cr.P.C. was recorded. Despite opportunity being granted, no witness in defence was produced; however the statement of Seeta recording during investigtion (EX.D/1), the report (EX.D/2), the statement of Goma Ram recorded during investigation (EX.D/3) and the statement of Saka Ram recorded during investigation under Section 161 Cr.P.C.(EX.D/4) were got exhibited in defence. After hearing the learned counsel for the parties and considering the oral and documentary evidence on record, the learned trial court convicted and sentenced the appellant as stated above. Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 4 We have heard learned counsel for the parties and carefully gone through the record. The main contention of the learned counsel for the appellant is that the trial court, while recording the order of conviction, found proved the Points No.1, 2, 3, 4 and 5, framed for consideration, in favour of prosecution as proved beyond reasonable doubt and on the basis of the above-points, found the appellant guilty of the offences under Sections 364, 302 and 201 IPC; whereas the facts of recovery of a stick in pursuance of the information given by the appellant under Section 27 of the Indian Evidence Act and the extra-judicial confession made by the appellant before PW 12 Gopa Ram and PW 13 Saka Ram and the fact regarding recovery of ornaments belonging to the deceased were not found to be proved by the learned trial Court. So far as Points No.1 to 5 as discussed by the learned trial court are concerned, the main contention of the learned counsel for the appellant is that so far as the evidence of “last- seen” of the deceased with the appellant is concerned, it is very weak type of evidence and there is settled proposition of law that such a presumption of guilt against the accused can only be drawn against the accused if the circumstances adduced by the prosecution prove that no otherwise presumption can be drawn except the guilt of the accused; whereas in the present case, as per the statement of PW 1 Smt. Seeta, she saw the appellant with the deceased when both of them started from her residence Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 5 and regarding the later evidence, the prosecution has produced PW 7 Shanker Lal, who was the driver of Jeep No. RJ.16-T-6465 in which the appellant and the deceased travelled from Jalore to Bagotara Bera. The next contention of the learned counsel for the appellant is that the deadbody of the deceased could not be identified as it was recovered after two to three months from the date of the incident. As per the statement of PW 15 Dr. S.L. Mathur, the death of the deceased took place two to three months back from the date of conducting the autopsy by him. The charge against the appellant, as framed by the trial colurt, is that twenty to twenty-five days before 02-01-2003, the appellant had committed intentional death of deceased Phooli. Thus, the time of death as alleged in the charge and the time of death as adduced in the evidence by PW 15 Dr. S.L. Mathur are not matching and, therefore, the conviction recorded and the sentence awarded by the learned trial court suffer from illegality and perversity and the prosecution evidence which was believed by the trial court, is very week type of evidence and in the totality of the facts and circumstances on record, it cannot be said that no presumption other than the guilt of the appellant can be drawn in the instant case. Per contra, learned Public Prosecutor, while supporting the impugned judgment and order, urged that the judgment of conviction and order of sentence passed by the learned trial Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 6 court do not suffer from any error, illegality and perversity; on the other hand, it is a well-proved case against the appellant and the presumption has been drawn by the trial court on reliable evidence, therefore, the impugned judgment and order do not require interference. We have given out thoughtful consideration to the rival submissions made by the learned counsel for the parties. After considering the evidence produced by the prosecution and carefully scanning, evaluating and scrutinizing the evidence on record, it is clear that the corps of deceased Phooli was recovered after two to three months from the date of the incident and the deadbody of the deceased was not in a position to be identified by any person as it had decomposed. So far as the evidence of PW 1 Smt. Seeta is concerned, we have carefully perused her statement. In her cross-examination, it has come that she was not liking her husband appellant Mangi Lal because he was much elder to her in age. The motive, as discussed by the trial court is also not reliable because as per the statements of PW 1 Smt. Seeta and other prosecution witnesses, the appellant was already residing with the member of his in-laws and there is no evidence on record that deceased Smt. Phooli and her husband Rawata were intending to deprive the appellant from his property-rights. It is cardinal principle of criminal jurisprudence that to convict an accused on the basis of circumstantial evidence, the Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 7 prosecution has to prove each essential circumstance by leading trustworthy evidence and the circumstances so proved must constitute an unbroken chain leading towards infallible conclusion of guilt of the accused. Here the learned trial court mainly relied upon the evidence of last seen of the deceased with the appellant-accused. The star witnesses in this regard are PW 1 Smt. Seeta, who is the wife of the appellant and daughter of the deceased; and PW 7 Shanker Lal, who is the jeep driver. PW 7 Shanker Lal has not proved the fact of seeing the deceased and the appellant nearby the place of the incident and his statement is confined only to the extent of hiring the jeep for a particular destination. The statement of PW 1 Smt. Seeta also does not inspire confidence and the same cannot be taken as a gospel truth inasmuch as that she was not leading a happy marital life with the appellant on account of age difference. She deposed about the presence of the deceased and the appellant together at a place which was about four kilometres away from the well, wherefrom the deadbody was recovered. More so, the time gap between alleged last seen incident and recovery of deadbody cannot be ignored. There is gap of about two to three months and the possibility cannot be ruled out that the death may have occurred after some day of the alleged last seen. Hence, it is unsafe to record conviction of the appellant on the basis of the statement of untrustworthy witnesses, who deposed about some circumstantial evidence, which themselves are not sufficient to Mangi Lal Vs. State of Rajasthan D.B. Criminal (Jail Appeal No. 819/2003) 8 bring home the guilt against the appellant. In view of the aforesaid discussion, in our considered view, the fact of believing points No.1, 2, 3, 4 and 5 by the trial court are not based on cogent and convincing evidence. Resultantly, this criminal jail appeal is allowed; the impugned judgment and order dated 19-7-2003 passed by the learned Additional Sessions Judge (Fast Track), Jalore in Sessions Case No.95/2003 (4/2003) is set aside and appellant- accused Mangi Lal S/o Hosa Meghwal is acquitted of the offences for which he was charged with and tried. He is in jail and be set at liberty if not required in any other case. (KAILASH CHANDRA JOSHI), J. (GOVIND MATHUR), J. mcs