1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Madan Lal V/S The State of Rajasthan CRIMINAL APPEAL No. 239 of 1985 Date of Judgment : 18th Jan., 2010 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. DK Godhara for Mr.MD Purohit, for the appellant. Mr. Anil Upadhyay, PP for the State. BY THE COURT: (Per Hon'ble Gupta, J.) This appeal has been filed by the accused Madan Lal, seeking to challenge the judgment of the learned Sessions Judge, Balotra, dated 22.7.1985, convicting the appellant for the offence under Section 302 IPC, and sentencing to imprisonment for life with a fine of Rs. 1000/-, in default to undergo one year's R.I., under Section 364 IPC sentencing to five years R.I., and a fine of Rs. 500/-, in default to undergo six months rigorous imprisonment, and also convicting for the offence under Section 201 IPC, and sentencing to five years rigorous imprisonment and a fine of Rs. 500/-, in default to further undergo six months 2 rigorous imprisonment. All sentences have been made to run concurrently. Facts of the case are, that the deceased Gordhan @ Ganjoo was the son of P.W. 13 Hazari Mal b/c barber aged 9 years, a student of 3rd standard in Smt. Ganga Primary School at Barmer was missing. As usual he had gone to school on 11.3.1985, and he came out along with his schoolmate P.W. 2 Bhopa Ram, at which time, according to prosecution the accused was already outside the school along with a hired bicycle, whereon the accused took away the deceased to the former's house. The deceased was wearing red shirt and black knickers, and with his school bag in the hands. Thereafter Gordhan did not return. A search was made by the father and other family members but in vein. When information was sent to the local police in the next morning, whereupon police recorded a Gumshudgi report in the Rojnamcha Ex. P-6, and simply directed to continue the search for the missing boy. It is in this sequence that on 13.3.1985 P.W. 2 Bhopa Ram is said to have disclosed about the deceased having left the school premises on the bicycle of a young boy aged 15 to 20 years. This information was given to the school teachers. On this a first information report was registered as Ex.P-21, 3 for the offence under Section 363 IPC. In the next morning SHO P.W.21 Abdul Gafoor had gone towards Jogiyon Ki Thadi locality in search of missing boy, where he noticed many people gathering there, and on reaching there he found that organs of dead body of a boy are visible in the sand, the dead body was exhumed, which was found to be of the deceased Gordhan, who was wearing the dress as described in the Gumshudgi report, the hands and feet were tied with the blue coloured nylon string, and body was wrapped in a Dari, Jute Bag and a plastic cloth, which again was tied with a string. Basta was found lying nearby. The autopsy was conducted by P.W.1, Dr. M. M. Purohit, who opined that the cause of death is not possible to be determined because the body was decomposed, however he did not rule out the possibility of the deceased dying during the night of 11.3.85. The wearing apparel of deceased and visaras were taken and sealed, the accused was arrested on the next day, being 15.3.85, and after his arrest he is alleged to have led the investigating agency to the place of kidnapping, to the place where he was last seen with the deceased by P.W.15, to the cycle shop of P.W.9 Nisar, from whom he had hired the bicycle, and to the kitchen of the house at Barmer, where the deceased was said to have strangulated by him. In that kitchen the SHO noticed part of the floor recently plastered with liquid lime, 4 where-from the blood stained earth and plaster were removed and taken into possession. The recovered articles were sent for forensic examination, the accused was put to test identification parade, and was identified by P.W.2 in the test identification, conducted by P.W.3 Ramswaroop. According to the prosecution the accused also made extra judicial confession to his elder brother P.W.19 Kishna Ram and P.W.18 Bhura Lal. The motive has also been shown by the prosecution to be existing, being, the accused nursing enmity against the father of the deceased. After completing investigation charge-sheet was submitted in the Court of Chief Judicial Magistrate, Barmer, where-from the case was committed to the trial Court. The accused denied the charges. The learned trial Court during trial examined 23 witness on behalf of prosecution, 38 documents were tendered in evidence. The stand of the accused was of complete denial, and he took plea of alibi, and in defence examined two witnesses to prove, that for the last more than 2 years accused was living in Balotra, and he had left Barmer, was carrying on profession of Barber. D.W.1 Babu Lal and D.W.2 Doonger Singh are the persons, who have deposed to be the customers of the accused. 5 The learned trial Court after completing the trial convicted and sentenced the accused as above. We have heard learned counsel for either side and have gone through the record. Undisputedly there is no eyewitness in the present case, and the case rests on circumstantial evidence only. Therefore before proceeding further we may remind ourselves of the established legal principles governing the cases resting on circumstantial evidence, and the principles are:- (i) each circumstance sought to be proved by the prosecution should point towards the guilt of the accused (ii) each such circumstance should be established by legal admissible, reliable evidence (iii) all such circumstances, so established, should form a complete chain establishing the guilt of the accused and (iv) the most important being that the chain so formed should at the same time negative innocence of the accused on all reasonable hypothesis. We now proceed to examine the present case on the above parameters. We would like to examine first of all, as to what are the circumstances projected and relied upon by the prosecution to support the 6 prosecution. Then out of them what circumstances have been believed by the learned trial Court. Then we shall examined as to whether the believed circumstances have been proved on record in accordance with law, and then whether the circumstances which we find to be proved, establish guilt of the accused or not, and as to whether they also negative innocence of the accused or not. In the present case, the prosecution has relied upon motive as the first circumstance, which circumstance has been believed by the learned trial Court in para 25. Then second circumstance relied upon is about the opportunity being available to the accused for commission of the crime. This circumstance has also been believed by the learned trial Court in para 27 of the judgment. Then the next circumstance relied upon is recovery of the bicycle and the register of the shopkeeper, to establish that the accused had hired the bicycle, whereon the accused had kidnapped the child. The learned trial Court has considered this circumstance along with the circumstance of the accused having been last seen in the company of the deceased, which circumstance is said to be proved by the prosecution, by the evidence of P.W.2 Bhop Ram and P.W.15 Ghanshyam. The learned trial Court has found, that the evidence of P.W.2 7 cannot be accepted on the point of identity of the accused, though he had identified the accused in the test identification parade, but then, he had admitted that the accused was shown to him in the Police Station, but at the same time, the learned trial Court felt, that the evidence of this witness P.W.2 inspires confidence for the purpose of enabling the Court to appreciate other evidence on the point. Then believing the evidence of P.W.15, about seeing the accused near the railway track with the bicycle, on which the deceased was carried, it was found that it stands conclusively established that the accused had kidnapped the deceased from outside the school at 4.45, on 11.3.85, and taken him towards the accused's house in Shashtri Nagar. Learned trial Court proceeded with relying upon the evidence of P.W.9 Nisar, the shopkeeper from whom the bicycle was taken on hire. Then considering the fact, that the person kidnapped had been killed, treating it to be subsequent conduct of the accused, the learned trial Court found the offence under Section 364 to be established. Then the learned trial Court relied upon the circumstance of pointing of kitchen in the house of the accused, recovery of the key and key ring from the 8 pitcher in that house, on the information, and at the instance of the accused, under Section 27 of the Evidence Act, and recovery of blood stained earth, and the fact that part of the floor was recently plastered with lime, to come to the conclusion, that the deceased was murdered there. Then the learned trial Court has relied upon the FSL report Ex.P/34, which reported that the blood stained earth and apparel were stained with human blood, though the blood group could not be identified as the blood had disintegrated. The learned trial Court for this purpose taken into consideration and relied upon the evidence of P.W.20, 21, 22 and 23 to hold, that the samples taken had remained intact from the time of seizure till examination by Forensic Science Laboratory. Then referring to the condition of body, as noticed in the post mortem report, and taking the aid of the medical jurisprudence, the learned trial Court found that the deceased was killed by throttling, as the symptoms unmistakably establish, that the death was caused by asphyxia. Thus it was found that the accused is guilty of the offence under Section 302 IPC. 9 Then considering the fact that the corpse was recovered buried under the sand, and thus it was found that the accused is guilty of the offence under Section 201 IPC also. The prosecution had also relied upon yet another circumstance, being extra judicial confession, made by the accused before P.W.18 and P.W.19. But then the learned trial Court found, that the P.W.19 had turned hostile and did not support the prosecution, while the evidence of P.W.18 is not reliable and trustworthy. Thus, the circumstance of extra judicial confession was not believed. Then the learned trial Court dealt with, discussed and appreciated the evidence of defence, in conjunction with the evidence of P.W.19, and found, the story propounded by the defence to be false, and was also rejected. Thus the learned trial Court has convicted and sentenced the appellant as above. Now we proceed to take up the circumstances one by one. The first circumstance, which we would like to consider is, about the motive. Twofold motive has been projected by the prosecution, one being that the accused, who is barber by caste and profession, had 10 learnt the job and was also working on the shop of the father of the deceased, where he had worked for quite some time, but then there had been some dispute and therefore, the appellant without the consent of the father of the deceased opened his own shop in the vicinity, and there was some dispute about removal of one stone slab also from in front of the shop of the father of the deceased. It is also shown, that the accused closed that shop about after a month or so, and had to leave Barmer for Balotra, where he had began to work with his brother P.W.19 Kishna Ram. The other motive projected by the prosecution is, that the accused while working on the shop of P.W.13, used to visit the witness' house as well, and during those days, Bagoo, younger sister of the wife of P.W.13 was also staying there, and the accused developed intimacy with her, and desired to get engaged with her, but the parents of the girl declined for that. The evidence to prove these two set of motives, produced by the prosecution comprises of P.W.12 Meera, P.W.13 Hazari and P.W.19 Kishna Ram. We have gone through the statements of these three witnesses. P.W.12 and P.W.19 happen to be the mother and brother of the accused, they obviously have not supported the prosecution case, however P.W.13 Hazari, who is the father of the deceased, had supported both 11 sets of motives. We may notice firstly, that P.W.13 is an interested witness, being father of the deceased. Then though other prosecution witnesses have deposed, that the accused had shifted to Balotra from Barmer some more than 2 years back, while P.W.13 has not chosen to disclose this fact, perhaps in an attempt to give an impression, as if the story of shifting to Balotra is a fresh one. Then in our view, even if it were to be believed that some misunderstanding between the accused and Hazari was there, while the accused was working with Hazarimal, and consequent thereto the accused started his own independent shop in the vicinity, and then leaving Barmer and shifting to Balotra, does not persuade us to believe, that it provided a motive for the crime, inasmuch as, it is well-nigh possible, that on account of misunderstanding the accused may have opened another shop, and obviously opening of such shop might be adversely affecting the business of Hazari. May be that on that count the relations got strained, and the accused might have thought it proper to bring the day to day dispute to an end, by shifting to Balotra, as such, it cannot be said that this provides any motive to the accused to commit the crime in question after such a long gap of time. Then so far as the accused having developed intimacy with Bagoo is concerned, that too does not inspire much confidence. Bagoo, or 12 anybody from her parental side, has not been examined by the prosecution; in this regard, and we are not inclined to place reliance on bare ipse-dixit of P.W.13. Thus the circumstance of motive, as projected by the prosecution, in our view, is not established, and in any case, it can not be said to be providing cause to the accused to commit the crime in question. Coming to the next circumstance, the opportunity to be available to the accused. In our view, mere availability of opportunity to kidnap the child, by itself, cannot be said to be an incriminating circumstance, unless it can be believed that it is established by the prosecution, that the accused has committed kidnapping, of course absence of opportunity could be taken to be a circumstance to disbelieve the evidence of kidnapping, but then other way round is not true. Therefore we need not detain on this. Coming to the precise act of kidnapping on a hired bicycle, in this regard, the prosecution has relied upon the evidence of P.W.2 Bhopa Ram, P.W.15 Ghanshyam, and P.W.7 Kewal Ram the Asstt. Teacher, in the school. We have examined evidence of these witnesses. So far as Bhopa Ram is concerned, even according to him he did not know the accused since 13 before, and therefore he could not name the accused. The accused was put for test identification from this witness, but then as admitted by him, the accused was shown to him before hand, therefore, his identification has already been disbelieved by the learned trial Court. Once that evidence is disbelieved, in our view, he cannot be believed for the purpose of coming to the conclusion about the accused having kidnapped the child from the school. The very intrinsic worth of the evidence stands lost when the evidence of this witness is not believed for the purpose of identification of the accused. Then coming to the evidence of P.W.15 Ghanshyam, in our view, his evidence also does not inspire confidence, in view of his conduct, inasmuch as, despite the fact that the child being missing having been proclaimed in the town, and giving description of child, this witness did not choose to divulge his having seen the accused, carrying a child with the said description, and with the said school uniform on the bicycle. In our view, it is wholly unnatural that when the child in the school uniform is seen by the witness to have been carried by the accused on a bicycle, which child is reported to be missing, and the witness would not disclosed to have seen the accused carrying the child for days together 14 sequentially. Thus, this evidence neither can be said to be reliable and sufficient evidence for the purpose of establishing the charge of kidnapping against the accused, nor can it be used for the purpose of establishing the circumstance of the accused having been last seen in the company of the deceased, while the deceased was alive. There is no dispute on the question that the deceased has died homicidal death, as is clear from the post mortem report. The symptoms found on the body have rightly been found by the learned trial Court to be showing the death to have been caused by throttling or strangulation, or the like resulting into asphyxia, and obviously was a homicidal death. The next circumstance relied upon by the prosecution is about the accused having shown the kitchen, where the murder was committed which kitchen was found locked, the accused took out the key ring, having three keys therein, from a pitcher, which was filled with clay. The accused opened the lock of the door of the kitchen and pointed out the mud-plaster of the floor inside, which was recently plastered with clay and lime, and there-from blood stained earth was recovered by the investigating agency. This circumstance has various facets. It is not in dispute 15 that the accused had shifted to Balotra; obviously the house is occupied by other family members of the accused also, at least including his mother, as such, it cannot be said, that the kitchen was in his exclusive possession. The pitcher from which keys were recovered has not been seized by the Police, then the lock, and key which lock was opened by the accused from the keys produced by the accused from the pitcher, had not been seized by the Police, with this, as pointed out by the learned counsel for the appellant, by collective reading of the evidence of P.W.20 Kailashdan, 21 Abdul Gafoor, and 22 Pema Ram, and even our reading evidence of P.W.23 Bhoor Singh, that the evidence about the article remaining intact from the time of the taking into possession till their reaching the Forensic Science Laboratory, is not wholly convincing. According to P.W.20 Kailashdan he was delivered the articles on 26.4.85, he reached Jaipur on 27.4.85, on which date the material could not be deposited, 28th being holiday he wanted to deposit the article on 29th, but there were certain objections, and therefore articles were not received. Then he came back to Barmer on 30th, and deposited back the sealed articles at Police Station, Barmer. As against this, a look at the evidence of P.W.23 Bhoor Singh, who is the 16 In-charge of Maalkhana in Police Station Barmer, shows that according to him he had delivered the articles to Kailashdan P.W.20 vide Rod No.10 on 26.4.85, and Kailash Dan brought back the articles with objection and deposited them in the Maalkhana on 3rd April (sic 3rd May 1985). It is not shown as to how the discrepancy has to be reconciled, as to whether the articles were deposited back in the Maalkhana of Barmer on 30th April or 3rd of May. There does appear to be something, which the prosecution has failed to explain. Law in this regard is well setteled by this Court in Ratanlal Vs. The State reported in 1966 RLW- 451, and by Hon'ble the Supreme Court in catena of judgments starting from that in State of Rajasthan Vs. Daulat Ram, reported in AIR 1980 SC-1314, to the effect that where the article changed several hands before reaching the FSL, and those, in whose custody the article remained were examined by the prosecution to prove that while in their custody, the seals on the article were not tampered with, the inevitable effect of the omission was, that the prosecution failed to rule out the possibility of the article being changed, or tampered with during the period in question - a fact which had to be proved affirmatively by the prosecution. Then the visaras are not shown to have been 17 sent, and thereon no report has been produced on record. Likewise, so far blood stained earth, said to have been taken from the kitchen, from the possession of the accused is concerned, even according to P.W.20 Kailashdan the objection by the Forensic Science Laboratory was, that on the article necessary description, like case number was not mentioned, seal of hospital was not there. This is a very important aspect, entitling the accused to raise a big cavil, as to whether the earth sent was the same, as is said to have been recovered from the kitchen, as alleged by the prosecution. Thus this circumstance also cannot be said to be proved against the accused. As noticed above, the circumstance of extra judicial confession has already been disbelieved by the learned trial Court. Then the only circumstance relied upon, that survives is, about secret disposal of the dead body of the deceased. In this regard also, it would suffice to observe, that even according to the SHO P.W.21 Abdul Gafoor, the dead body was noticed by him, in view of the fact, that various persons had gathered there, and exposed organ of the body was noticed. Obviously body was not got recovered by the accused, whether by identifying the place, or by giving information 18 admissible under Section 27 of the Evidence Act. In that view of the matter, merely because dead body of a child, subjected to homicidal death, was found lying buried under sand, by itself is not enough to fasten the guilt on the accused appellant, either for murder or for kidnapping, or even for the offence under Section 201 IPC. Thus, the net result of the aforesaid discussion is, that we are constrained to set aside the impugned judgment of the learned trial Court. The appeal is accordingly allowed. The impugned judgment is set aside, and the appellant is acquitted of all the charges. He is already on bail. He need not surrender to bail bonds and the same are cancelled. ( C M TOTLA ),J. ( N P GUPTA ),J. /Sushil/