1 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T DEVI LAL VS THE STATE OF RAJASTHAN. D. B. CRIMINAL JAIL APPEAL NO. 237/2004 Against the judgment dated 29.01.2004 passed by Shri Girish Kumar Pandey, RHJS, Additional Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No.137/2003. Date of Judgment : 11th May, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. S.P. Sharma, Amicus Curiae. Mr. Anil Upadhyaya, PP, for the State. BY THE COURT: (Per Hon'ble Mathur, J.) By the judgment and order dated 29.01.2004, learned Additional Sessions Judge (Fast Track) No.1, Bhilwara recorded conviction of accused appellant for the offences punishable under Section 392 and 394/397 IPC and accordingly sentenced as under :- (i)Section 302 IPC – Life imprisonment with fine of Rs.2000/- and further to undergo three months rigorous imprisonment in default of payment of fine. (ii)Section 394/397 IPC – Ten years rigorous imprisonment with fine of Rs.1000/- and further to undergo one month rigorous 2 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) imprisonment in event of default in making payment of fine. Briefly stated, case of the prosecution is that on 01.10.02 at about 1:25 PM, a telephonic information was received at Police station, Raipur that an abandoned dead body of a lady was lying on Gangapur Road near Jaton ki Nadi. The information was recorded in daily diary and the Station House Officer, Harshraj Singh PW/27 proceeded to the spot of occurrence. At the spot of occurrence, a written report was submitted by PW/9 Mangi lal with the assertion that at about 12:30 PM, when he reached at bus stand, one Madan S/o Mangi lal Jat informed him that dead body of Smt. Kasturi wife of his son Balu was lying in the fields. On reaching, in the fields he found dead body of his daughter-in-law Smt. Kasturi lying there. On basis of the aforesaid, a criminal case was registered. Accused was arrested and certain recoveries were made during the course of investigation. A charge-sheet then was filed before the competent Court and the case was committed to the court of Sessions. The trial court framed charges against accused appellant for commission of offences punishable under Section 302 and 397 IPC. But on denial of the same, regular trial was conducted. Prosecution substantiated its case with the aid of 29 witnesses (PW/1 to PW/29) and also exhibited 54 documents and 17 articles. The accused was examined as per provisions of Section 313 Cr.P.C to explain the circumstances available against him. In the evidence adduced by the prosecution, accused denied all the circumstances 3 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) adverse to him and pleaded his innocence. No evidence in defence was produced on behalf of accused. Learned trial court examined the entire evidence available on record and reached at the conclusion that so far as evidence of last seen is concerned that is not at all reliable. However, by placing reliance on other circumstances such as recovery of blood stained knife, a 'Madalia' (metallic capsule) and Ramnavmi (an ornament) at the instance of accused, trial court recorded conviction and awarded the sentence. In appeal, the contention of learned Amicus Curiae Shri S.P. Sharma is that the recovery said to be made at the instance of accused is not at all reliable. As per learned Amicus Curiae, articles which are said to be recovered at the instance of accused appellant, as a matter of fact were seized by the investigating agency on the very first day i.e. 01.10.02 from the spot of occurrence. To substantiate the contention, he has placed reliance upon the statements of PW/9 Mangi lal, PW/10 Ramchandra and PW/25 Nanu Ram. While defending the conviction recorded and sentence awarded, it is urged by learned Public Prosecutor that recovery of blood stained knife, 'Madalia' and 'Ramnami' at the instance of accused is sufficient to establish his guilt. It is also asserted that the knife recovered at the instance of accused was found stained with “A” group of blood and that matched with the bloods stains available on the clothes of deceased Smt. Kasturi. We have considered the arguments advanced and also 4 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) scrutinized the record. The conviction of the accused is solely on the basis of recovery of a blood stained knife, a 'Madalia' and a 'Ramnami'. It is also not in dispute that as per forensic science laboratory report (Ex.P/54) the knife recovered at the instance of accused was found to be stained with “A” group of blood and as such, matched with the blood stains available on petticoat, Odna and blouse of the deceased. However, PW/9 Mangi lal who is father-in-law of deceased stated that 'Ramnami' and 'Madaliya' were available on the body of deceased on 01.10.02. In cross-examination also, this witness in un-ambiguous terms stated that his daughter-in-law was usually wearing certain ornaments including 'Madaliya' and 'Ramnami' and all the ornaments were found, when he submitted the First Information Report to the police. Similarly, PW/10 Ramchandra in presence of whom recovery was made by the investigating agency, in specific terms stated that 'Ramnami' and 'Madaliya' were available on dead body and those were given on 'supurdgi'. PW/25 Nanu Ram who was present as a motbir at the time of recovery of certain articles at the instance of accused stated that blood stained knife was lying at the spot of occurrence and the same was seized by the police. In view of statement of these persons, the recovery made by the investigating agency on which trial court relied is highly doubtful. In our opinion, such a dubious recovery cannot be a cradle to instal conviction of the accused for the 5 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) offences punishable under Section 302 and 394/397 IPC. A reasonable doubt exists in believing the prosecution case and therefore, the conviction recorded by the trial court deserves to be set aside. Accordingly, this appeal is allowed. The judgment impugned dated 29.01.2004 passed by learned Additional Sessions Judge (Fast Track) No.1, Bhilwara is set aside. The conviction recorded and the sentences awarded therein too are consequentially set aside. Accused is acquitted from the charges framed against him by the trial court. Thus, he be released forthwith from judicial custody if not otherwise required. (C.M. TOTLA), J. (GOVIND MATHUR), J. bijesh