-1- CRLA No.698/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T D.B. Criminal Appeal No.698 of 2004 Chandan Singh son of Shri Ramte and Others V E R S U S The State of Rajasthan Date of Judgment :::: 6th October, 2010 P R E S E N T Hon'ble Mr. Justice Dalip Singh Hon'ble Mr. Justice S.S. Kothari Mr. Harshvardhan Nandwana, for the accused-appellants. Mr. J.R. Bijarnia, Public Prosecutor for the State **** By the Court : (Per Hon'ble Mr. Justice Dalip Singh). This criminal appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 has been filed by three accused-appellants viz., (i) Chandan Singh son of Shri Ragte, (ii) Chela son of Shri Ram Dayal and (iii) Laxman son of Shri Ram Prasad, who have been convicted for commission of the offence under Sections 302 and 201 I.P.C. and sentenced to life imprisonment with a fine of Rs.500/- for the offence under Section 302 I.P.C. and sentenced to two-years rigorous imprisonment, for the offence under Section 201 I.P.C. with a fine of Rs.100/- and further the accused - Chandan Singh and Chela have also been convicted for commission of the offence under Section 379 I.P.C. and sentenced to one year's imprisonment with a fine of Rs.100/- by the learned Additional District & Sessions Judge (Fast Track) No.2 Dholpur in Sessions Case No.34/200 vide its -2- CRLA No.698/2004 judgment dated 20th December, 2003. Facts, in brief, are that on 31st May, 2001 the S.H.O. Police Station Sepau District Dholpur proceeded to the scene of occurrence and of reaching there he found a dead boy in the agricultural field of Siya Ram. The body was unidentified and face has been mutilated and could not be recognized. There was a mark of injury on the right side of chest and there was blood smeared soil lying with the body on the left and right side. The S.H.O. has noticed the aforesaid facts and prima-facie concluded that some unidentified person had been murdered and with a view to destroy the evidence the accused had left the body in such a state. On this, a criminal case under Sections 302 and 201 I.P.C. was registered. The S.H.O. Shri Ranjeet Singh, PW- 20 sent a written report with the constable, which is Exhibit P-23 on which the F.I.R. was later drawn at the Police Station, which is Exhibit P-24. The S.H.O. sent the body after making “panchnama” of the dead body for postmortem. The blood smeared soil was also recovered and the site plan of the place of occurrence was also prepared. During the course of investigation, the accused- persons were arrested and on the information furnished by them a wrist watch, silver chain as well as the stones, which were said to be the weapon of offence were also recovered. The police also prepared the site plan of the place of where the aforesaid recoveries were made in -3- CRLA No.698/2004 pursuance of the information furnished under Section 27 of the Evidence Act by the accused. On the basis of the recovery of the wrist watch and the silver chain accused Chandan Singh and Chela were charged for commission of the offence under Sections 302, 201 and 379 I.P.C. whereas accused-appellant Laxman was charged for commission of the offence under Section 302 read with Section 201 I.P.C. During the course of the trial as many as 23 prosecution witnesses were examined and 30 documents were got exhibited from the side of the prosecution. The defence exhibited Exhibit D-1 to D-5, the statement under Section 161 Cr.P.C. of various prosecution witnesses with which the prosecution witnesses were confronted during the course of their cross-examination. The learned trial Court (Additional District & Sessions Judge (Fast Track) No.2 Dholpur convicted accused-appellants - Chela and Chandan for commission of the offence under Sections 302, 201 and 379 I.P.C. accused- appellant Laxman was convicted for the offence under Sections 302 and 201 I.P.C and sentenced as mentioned above. As a result of their conviction the appellants being aggrieved have preferred the present appeal. We have heard the learned counsel for the accused-appellants - Shri Harshvardhan Nandwana as well as learned Public Prosecutor for the State - Shri J.R. Bijarnia and perused the record. -4- CRLA No.698/2004 Learned counsel for the accused-appellants contended that firstly in the instant case the prosecution has failed to establish that the dead body, which was recovered was that of deceased Ramji Lal for whose murder the accused have been charged. It was submitted by the learned counsel for the accused-appellants that for sustaining the conviction of the appellants for the murder of Ramji Lal the prosecution was required to prove that the dead body, which had been recovered was that of Ramji Lal deceased. In this behalf, learned counsel for the accused- appellants submitted that as per the prosecution witness PW-22 Sirmor, who is a close relative and a cousin brother of the deceased, on the left hand of Ramji Lal, there was a tattoo mark with his name Ramji Lal Kushwa inscribed thereon. The relevant portion of the statement of PW-22 Sirmor to which attention of the Court was drawn reads as follows : "मेरे भाई के बाएं हाथ पर नाम गुदा हआ था। ǔजस पर ु रामजी लाल कुशवाह िलखा था।" Learned counsel contended that this was an obvious mark of identify, which could not have been missed by the Investigating Officer or by the Motbir or the Panchas before whom the Panchnama of the dead body, Exhibit P-3 was prepared and in the present case it has not at all come -5- CRLA No.698/2004 on record that on the dead body, which was recovered any such tattoos was marked on the left hand was seen by anyone. Learned counsel, therefore, contended that in view of the statement of PW-22 Sirmor, cousin brother of the deceased the deceased had his name tattooed on the left hand as Ramji Lal Kushwa, which evidence is missing in the present case. It cannot, therefore, be conclusively determined that the dead body, which was recovered was that of Ramji Lal for whose murder the accused-appellants have been convicted and sentenced and there is a serious doubt that the dead body was that of Ramji Lal. Learned counsel further contended that it had come in the evidence of the prosecution that the deceased had been photographed. For this purpose, the learned counsel drew the attention of the Court to the statement of the Investigating Officer - Shri Ranjeet Singh PW-20 wherein the Investigating Officer has clearly admitted in his examination-in-chief “ लाश के फोटɉ कराये थे।” . Learned counsel also contended that when the photographs of the deceased had been taken by the Investigating Officer it was the duty of the prosecution to have confronted the widow of the deceased and other members of his family with the aforesaid piece of photographic evidence of the dead body for the purposes of identification, as the relatives of the deceased never had the -6- CRLA No.698/2004 occasion to see the dead body or to identify the same. Learned counsel for the accused-appellants further contended that despite having taken the photograph it was a material piece of evidence, which the prosecution ought to have produced at trial and for non-production of the same an adverse inference ought to be drawn against the prosecution. Learned counsel contends that the prosecution has deliberately suppressed the aforesaid material piece of evidence from the Court so that the prosecution witnesses may not be confronted with the aforesaid evidence in Court during the course of their deposition as there was every possibility that they may not have been able to identify the dead body as that of Ramji Lal deceased thereby demolishing the prosecution case. Learned counsel for the accused-appellants further contended that for the purposes of identification only the clothes, which were said to have been recovered from the dead body after the postmortem were relied upon by the prosecution. Learned counsel submitted that there is no evidence of the fact that at the time when these articles, which had been sealed at the time of their seizure by the Investigating Officer, the seals were intact at the tme when the articles were shown to the prosecution witness namely Guddi PW-17 the widow of the deceased and two other prosecution witnesses and the seals were same as those of -7- CRLA No.698/2004 the samples taken at the time of the sealing of the packets containing the clothes of the deceased. It is further submitted by the learned counsel that these clothes and articles were not mixed with any similar articles or clothes so as to fulfill the requirement of law for the purposes of identification. In support of the above, the learned counsel for the accused-appellants has relied upon a Division Bench decision of this Court in the case of Plaja @ Subi @ Mahesh and Anr. Vs. State of Rajasthan, reported in 2004 (1) Cr.L.R. (Raj.) Page 8. Learned counsel for the accused-appellants further contends that the present one is a case of circumstantial evidence and in which the learned Court below has relied upon the circumstances of last seen, recovery of clothes and the alleged stone which is said to be the weapon of offence and the wrist watch and silver chain at the instance of the accused. In this behalf, the learned counsel for the accused-appellants has taken us through the evidence regarding last seen led by the prosecution. The prosecution has examined PW-15 Hakim Singh and PW-21 Ram Khilari for the purposes of the evidence of last seen. PW-15 Hakim Singh has stated that he along with Ram Khilari proceeded to Narpura for the purposes of purchase of stones slabs (pattis) on 27.05.2001 which was a Sunday and were returning at about 6 or 7 in the evening and when they -8- CRLA No.698/2004 came near Panchgaon bus stand and he and Ram Khilari were waiting for the bus to arrive they saw Ramji Lal deceased, Chandan Singh, Chela and Laxman the accused roaming around at the bus station. He deposed that he and Ram Khiladi both asked Ramji Lal as to what he was doing there on which Ramji Lal is said to have replied that he was going to Punjab for seeking employment. He further stated that he inquired from Ramji Lal deceased as to who the persons were with him and Ramji Lal is said to have disclosed the names of Chandan, Chela and Laxman to this witness. This witness further deposed that after about 15-16 days he came to know that Ramji Lal has died and he immediately realized that the accused might have murdered him. PW-21 Ram Khiladi has also given the same story as given by PW-15. Learned counsel for the accused-appellants submitted that this story is false and drew the attention of the Court to the statement of PW-17 Smt. Guddi wife of the deceased wherein Smt. Guddi in the examination-in-chief had stated as follows : - "Ǒदन के 10 बजे चÛदन, चेला और लआमण मेरे घर पर मोती राम के नगला मɅ पहंचे थे। उस समय मेरे घर ु पर मेरा जेठ िसरमोर और हाǑकम था। उस समय घर पर मɇ तथा मेरा पित भी थे। इÛहɉने घर जाकर मेरे पित रामजी लाल से कहा Ǒक काम करने पंजाब चल रहे हɇ। Ǒदन के 12 बजे मेरे पित को तीनɉ अपने साथ ले आये। मेरे जेठ ने कहा Ǒक तू तो कहती है Ǒक रामजी लाल पंजाब गया है। और मुझे वह पचगावं मɅ घूमते िमला है। मेरे जेठ िसरमोर ने यह भी बताया था Ǒक पचगावं मɅ उसने रामजी लाल , चÛदन, चेला और लआमण को बस मɅ देखा है---।'' -9- CRLA No.698/2004 Learned counsel on the basis of the aforesaid statements submitted that so far as Hakim PW-15 is concerned as per PW-17 Smt. Guddi, Hakim was already present at the house of the deceased in the presence of Smt. Guddi PW-17 when the three accused persons had allegedly come there and all four of them including the deceased Ramji Lal were making plans to go to Punjab for employment. Learned counsel, therefore, contended that the statement of PW-15 that he met the deceased along with the accused-persons at the bus stand and it was hear that PW-15 inquired as to who these persons were from Ramji Lal deceased and the deceased disclosed the name of Chandan, Chela and Laxman to Hakim is false and contradictory in the light of the statement of PW-17 Smt. Guddi who has stated that Hakim was present at the house of Ramji Lal in the morning when the three accused-persons had come to take him for proceeding to Punjab. From the above, it was contended that PW-15 Hakim who is a close relatives of Ramji Lal deceased the aforesaid story that Hakim Singh PW-15 saw the deceased at the bus stand with the accused is a false story which has been introduced to create the evidence of last seen. It is submitted that Ram Khiladi PW-21 is also a close relatives of deceased Ramji Lal and is a planted witness just like PW-15. The other witness with regard to last seen is PW-22 Sirmor who is a brother of the deceased -10- CRLA No.698/2004 whose presence has been shown by PW-17 Smt. Guddi at her residence in the morning at the time when the accused are said to have come to the house of Ramji Lal. Sirmor has also given the same story as Smt. Guddi PW-17 stating that at about 10:00 or 10:30 A.M. in the morning of 27.05.2001 accused Chandan Singh, Chela and Laxman came to Moti Ram Ka Nagla and met Ramji Lal and asked Ramji Lal if he was willing to go to Punjab for work and Ramji Lal agreed and they leff the house at about 12:00 o'clock together. As regards this witness the submission of the learned counsel for the accused-appellants is that this witness has also been introduced subsequently, inasmuch as this witness states as follows :- शाम के करȣब 8 बजे हमारे गांव के कुटàबभाई ु रामǔखलाड़ȣ और हाǑकम ने मुझे आकर पूछा Ǒक रामजी लाल कहां पर गया है तो मɇने उÛहɅ बताया Ǒक वह पंजाब के िलए गया है। Learned counsel for the accused-appellants contended that in view of the categorical statement of PW- 15 Hakim Singh who is said to have met the deceased along with accused at the bus stand at Panchgaon at about 6 or 7 in the evening and on inquiring, Ramji Lal had already told them that he was going to Punjab along with the accused- persons and thereafter they had come away from the bus stand at Panchgaon in the bus. Learned counsel for the accused-appellants further drew the attention of the Court to the statement of -11- CRLA No.698/2004 PW-15 in his examination in chief which is as follows : "मɇने व मेरे भाई राम ǔखलाड़ȣ ने रामजी लाल से यह पूछा Ǒक यहां कैसे घूम रहा है। तो उसने कहा Ǒक मɇ पंजाब मजदरȣ करने जा रहा हं। ू ू" Learned counsel, therefore, submits that in view of the specific contradictions it is apparently clear that the theory of last seen has been introduced subsequently. Learned counsel for the accused-appellants further contended that apart from the fact that there is an apparent contradictions in the testimony of the witnesses who have been examined on behalf of the prosecution with regard to the evidence of last seen there is also a substantial amount of delay between the time the accused were last seen with the deceased and the recovery of the dead body. Learned counsel for the accused-appellants, therefore, contended that between the time the accused were last seen with the deceased on 27.05.2001 up to the time of the recovery of the dead body on 31.05.2001 it cannot be ruled out that the deceased did not come in contact with any other person and there was no possibility of his having coming into contact with any third person other than the accused during this period from 27.05.2001 to 31.05.2001. In this behalf, the learned counsel for the accused-appellants relied upon the judgment of the Hon'ble -12- CRLA No.698/2004 Supreme Court in the case of State of Goa Vs. Pandurang Mohite, reported in A.I.R. 2009 S.C. 1067 and more particularly Paragraph 16 of the aforesaid report. On the basis of the above, the learned counsel for the accused-appellants contended that evidence of last seen has been subsequently introduced as is apparent from the several contradictions in the statement of the witnesses of the prosecution and the fact that there was a long gap between the period when the deceased was last seen in the company of the accused and the recovery of the dead body. In view of the above, the evidence of last seen in the facts and circumstances of the present case cannot be taken to be a substantial piece of evidence against the accused- appellants for holding them guilty and must be rejected. Learned counsel for the accused-appellants further contended that the other evidence which has been relied upon the accused appellants is in the form of recovery of the alleged weapon of offence from the seen of occurance which is said to be blood stained on the basis of the information given by the accused Chandan Singh and Laxman vide Exhibit P-10 and P-11 on 24.06.2001 under Section 27 of the Indian Evidence Act. Learned counsel for the accused-appellants contended that so far as the recovery of the stones are concerned the Investigating Officer Ranjeet Singh PW-20 who visited the spot on 31.05.2001 upon having received the information that a dead body was lying in the field of -13- CRLA No.698/2004 Siya Ram had proceeded to the spot and after returning had made the entry report No.1349 in the `rojnamcha' of 31.05.2001 of having found stones on the spot and having kept the stones safely. The relevant portion of the statement of the I.O. Shri Ranjeet Singh, PW-20 to which the contention of the Court was drawn reads as follows : "यह बात सहȣ है Ǒक मɇने अपने रोजनामचे मɅ तारȣख 31.05.2001 को जो रपट नं.1349 डाली वह सहȣ डाली थी। इस रपट के मौके पर प×थर का िमलना व प×थर को सुर¢ा कȧ Ǻǒƴ से रखना सहȣ दज[ Ǒकया है। यह बात सहȣ है Ǒक 31 तारȣख को हमने कोई प×थर जÞत नहȣं Ǒकया।" Learned counsel for the accused-appellants further contended that as to what was exactly mentioned in the Rojnamcha report No.1349 has been suppressed by the prosecution, inasmuch as during the course of the cross- examination of this witness the cross-examination was deferred on 13.10.2003 to enable the prosecution to produce the original `rojnamcha'. In the statement of PW-20 on 13.10.2003 it was stated by Ranjeet Singh, I.O. as follows: “यह कहना गलत है Ǒक चÛदन ने प×थर कȧ ǐरकवरȣ नहȣं कराई हो। यह कहना गलता है Ǒक ǔजस Ǒदन लाश िमली उस Ǒदन मɇने प×थर इÈÒठे कर िलये हɉ। चÛदन ने जो प×थर बरामद कराया वह करȣब 20-25 Ǒकलो का था। नोट:- घटना ःथल पर भी लाश के पास से रोजनामचा रपट के अनुसार खून आलूदा प×थर बरामद होना बताया जाता है। परÛतु आज असल रोजनामचा -14- CRLA No.698/2004 नहȣं होने कȧ वजह से गवाह के बयान डेफर Ǒकये गये। असल रोजनामचा तलब हो। Inspite of the aforesaid opportunity being granted to the prosecution when the witness appeared in witness box again on 15.12.2003 the `rojnamcha' was not produced in evidence and the above statement regarding report No.1349 in the `rojnamcha' dated 13.05.2001 and the recovery of the stones and keeping them safely was given by the witness PW-20 Ranjeet Singh, the Investigating Officer. Learned counsel, therefore, submitted that when the Investigating Officer had already visited the scene of occurrence on 31.05.2003 and had seen the stones lying there and had kept them safely and an entry made in the rojnamcha, thus as per the accused the stones had already been recovered as mentioned in the `rojnamcha' report hence the recovery of the stones on the basis of the alleged information given by the accused becomes in consequential and cannot be used against the accused as the Investigating Officer already had the knowledge about the existence of these stones on 31.05.2001 itself prior to the arrest of the accused on 19.06.2001. Learned counsel, therefore, submits that the recovery of the alleged weapons on the basis of the aforesaid cannot be used as evidence against the accused- appellants. -15- CRLA No.698/2004 The learned counsel for the accused-appellants next contended that the recovery of the alleged wrist watch and the silver chain on the basis of the information furnished by the accused is also highly suspicious and has not been supported by the prosecution witnesses. So far as the recovery of the wrist watch is concerned, vide recovery memo is Exhibit P-1 at the instance of the accused-appellant Chela, the independent witness examined by the prosecution are PW-1 Ram Prasad and PW-2 Mohan Singh. So far as PW-1 Ram Prasad is concerned, he has denied the fact of recovery in his presence. In cross- examination he has stated as follows : "घड़ȣ मेरे सामने बरामद नहȣं हई थी। मɇने घड़ȣ भी नहȣं ु देखी। पुिलस ने कहा था Ǒक घड़ȣ बरामद कȧ है। पुिलस ने हमसे कोरे कागजɉ पर हःता¢र करवा िलये बरामदगी बाबत हमɅ कोई पता नहȣं।" In the examination-in-chief also all that this witness stated is as follows : "पुिलस ने एक घड़ȣ टाइटन बरामद कȧ थी। फद[ बरामदगी बनायी जो एÈजी पी.1 है।" However, after being cross-examined and having denied the fact of recovery in his presence this witness was not cross-examined or declared hostile by the prosecution. The other witness PW-2 Mohan Singh has also denied the fact of any recovery being made in his presence and has stated as follows: "मेरे सामने घड़ȣ बरामद नहȣं हई। मेरे कोरे कागजɉ पर ु साइन करवा िलये थे।" -16- CRLA No.698/2004 This witness was also not cross-examined by the prosecution nor was he declared hostile. Learned counsel on the basis of the above submitted that the evidence of recovery of the alleged watch on the basis of Exhibit P-1 as a circumstance against the accused-appellant – Chela cannot be relied upon. The other piece of evidence in this very chain is the alleged recovery of the silver chain of the deceased at the instance of accused-appellant – Chandan Singh. The two independent witnesses of Exhibit P-15 relating to the recovery memo of the silver chain are one Gopal and other Devi Singh. The first witness Gopal was not produced by the prosecution at trial. The second witness is Devi Singh, PW-11 and this witness has not supported the prosecution case, but was declared hostile by the prosecution. He has even denied the presence of Chandan Singh with the Police at the time of making the alleged recovery. Learned counsel for the accused-appellants, therefore, contended that so far as the alleged recovery of the two items namely the wrist watch and silver chain which are said to be those of the deceased the prosecution has failed to prove the fact of recovery of these articles at the instance of the accused or from the possession of the accused in view of the above evidence. As regards the circumstance of the accused leading the Police to the site of the crime after their arrest on 19.06.2001 is concerned, the learned counsel for the -17- CRLA No.698/2004 accused-appellants contended that in the present case the Police had already been led to the scene of the crime where the dead body was lying on 31.05.2001 by Siya Ram and the dead body had already been recovered from the scene of occurrence and this fact was already in the knowledge of the police as such the question of the accused leading the Police to the scene of the crime