1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Sattar vs. State of Rajasthan (1) D. B. Criminal Appeal No. 893/2005 Mool Singh vs. State of Rajasthan (2) D.B. Criminal Jail Appeal No. 710/2005 Appeals against the judgment dated 2.7.2005 passed by Additional Sessions Judge, Ratangarh (Churu) in Sessions Case No.14/2002. Date of Judgment :: 11th May, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. K.K. Kalia and Mr. Ashok Upadhyaya, for the appellants. Mr. Anil Upadhyaya, PP, for the State. Mr. Pawan Ojha for Mr. Sandeep Mehta, for complainant. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By the judgment dated 2.7.2005 learned Addl. Sessions Judge, Ratangarh convicted the accused appellants for the offences punishable under Section 302, 120B and 201 IPC and sentenced to undergo imprisonment for life term with a fine of Rs.1000 each and further to 2 undergo two months simple imprisonment in the event of default for making payment of fine. Beside the sentence aforesaid for the offence punishable under Section 302 and 120-B IPC, a sentence of three years rigorous imprisonment with a fine of Rs. 500/- each too was imposed for commission of an offence punishable under Section 201 IPC. A challenge to the conviction recorded and sentence awarded is given on various counts by the instant appeals. The facts necessary to be noticed for adjudication of these appeals are that an information regarding lying of an unidentified body was given by one Sh. Purkha Ram, Sarpanch, Gram Panchayat – Surothia at Police Station – Sandwa, Camp Rohi on 27.3.2002 at 4 pm. The dead body so found was having certain sharp injuries at neck and on abdomen near naval. After lodging a criminal case for commission of offences under Section 302 and 201 IPC, investigation was initiated and on basis of the evidence collected the accused appellants and one Dhuda Ram were charge-sheeted. The trial court framed charges under Section 302, in alternative 302/120B, 120B and 201 IPC. On denial of charges the accused persons were tried. The trial stood abated against accused Dhuda Ram because of his death. To substantiate the charges prosecution produced 19 witnesses and 73 documents in evidence. The accused persons denied all the 3 adverse circumstances available against them in prosecution evidence and pleaded innocence while tendering explanation as per provisions of Section 313 Cr.P.C. They also got two documents exhibited in their defence. As per postmortem report Ex.P/44 which was proved by Dr. Narendra Kumar (PW-17) the body under autopsy was having five injuries and the cause of death was shock due to hemorrhage from major neck vessels Rt coroted artery and internal jugular vein, thus, the homicidal death is established. As per PW-19 Shishupal Singh, the Investigating Officer, after receiving written information (Ex.P/1) from Purkha Ram, Sarpanch (PW-1), the unidentified dead body was recovered from the field of Mangu Bawari and several photographs of that were taken. After getting autopsy conducted the unidentified dead body was cremated. After few days the person died was identified as Mahendra Singh and then the statements of Pratap Singh, Shiv Kumar, Kamal Kishore, Babulal, Mahaveer, Sukh Singh, Gajendra Singh, Guman Singh, Tribhuvan Singh, Budhi Prakash, Sukha Ram, Ram Karan and Ratna Ram were recorded. On availability of evidence the accused persons were arrested and certain recoveries were made. As per PW-19 Shishu Pal Singh, accused Mool Singh gave certain information as per Ex.P/49 and on basis of that 4 a Timex wrist watch and a sum of Rs.7000/- in cash were recovered as per Ex.P/15. On basis of the same information a blood stained pant of accused Mool Singh was also recovered. The recovery memo of that is Ex.P/16. A Galsari (Chain) was also recovered at the instance of accused Mool Singh as per Ex.P/17. As per Ex. P/21 a sum of Rs.5000/- too was recovered at the instance of accused Mool Singh. While effecting recoveries aforesaid PW-4 Pratap Singh remained present as Motbir . PW-5 Madan Singh was present as Motbir while effecting recovery under recovery memos Ex. P/15, P/16 and Ex.P/17. The investigating agency recovered a blood stained car seat cover as per Ex.P/23 at the instance of accused Dhuda Ram and also his blood stained shirt, a sum of Rs.8000/- in cash, a shoe-pair of deceased and further a sum of Rs.4000/- as per recovery memos Ex.P/23, Ex. P/24, Ex.P/25, Ex.P/27 and Ex.P/29 respectively. All these recoveries were made in pursuant of PW-4 Pratap Singh and one Ranbeer Singh. At the instance of accused Sattar a baniyan and trouser, a sum of Rs.7000/-, an Ambassador Car, a stepney wheel and diesel filling receipt were recovered as per recovery memos Ex.P/32, Ex.P/34, Ex.P/36, Ex. P/37 and Ex.P/38 respectively. Recoveries under Ex.P/32 and P/34 were made in presence of PW-4 Pratap Singh and one Ranbeer Singh. Recoveries under Ex.P/36, Ex.P/37 and Ex.P/38 were made in presence of Virendra Singh and Madan Singh. 5 A blood stained pant-shirt, a blood stained Katar, a bed- sheet and two packets of Sulphose were also recovered from a well on basis of the information given by all the three accused persons. The articles so recovered were sent for their serological examination and report of that is available on record as Ex.P/61. As per report aforesaid baniyan and underwear of deceased, pant of accused Mool Singh, baniyan of accused Mool Singh, the Katar, pant and baniyan of accused Dhuda Ram were found to be stained with “A” Group of blood. The prosecution also supported its case with the evidence of last seen by producing PW-3 Prem Singh in witness box. PW-3 Prem Singh is real brother of deceased and as per him his brother Mahendra Singh (deceased), Gajendra Singh and he himself were involved in farming at Hanumangarh. On 26.3.2002 when he was sitting at his home at Village Anokhu, an Ambassador Car came from the side of village Dhond. Accused Sattar Khan and Mool Singh were sitting in that car. At that time deceased Mahendra Singh was at home. This witness then told that Mahendra Singh was to go to Sikar to see wife of the son of Baba Bhanwar Singh, but he did not go there on the pretext of some essential work. As per this witness Mahendra Singh then proceeded towards Deeppura. This witness saw Mahendra Singh at Deeppura bus-stand in evening at about 6 pm while going to Sikar. This witness further stated 6 that a white Ambassador car then came to bus-stand, wherein Mahendra Singh seated. As per this witness Mahendra Singh did not return to home for about 2-3 days, therefore, on reading a news item in a local newspaper dated 28.3.2002 about recovery of an unidentified dead body, he alongwith his father and Pratap Singh went to Sujangarh. No adequate information was received at Sujangarh, therefore, they further made contact at police station – Sandwa where they saw photographs of the dead body which was recovered on 26.3.2002. This witness and other accompanying persons identified the dead person and also noticed that the Timex watch was not available on the wrist of the dead body. This witness further stated that he saw the Ambassador car twice; first at 3 pm while sitting at home and then at 6 pm at bus-stand Deeppura. The prosecution also supported its case while producing PW-13 Gajendra Singh before whom accused persons said to have made extra judicial confession, however, the trial court did not believe this witness and as such there is no need to provide further details relating to the statements tendered by him. The trial court while relying upon the statements of Prem Singh PW-3 corroborated by PW-4 Pratap Singh and PW-6 Banna Ram, recoveries made at the instance of accused persons and matching of 7 blood stains convicted the accused persons and sentenced accordingly. In appeals the contention of learned counsel for the appellants is that PW-3 Prem Singh is not at all a reliable witness as the entire story of last seen was introduced by him at the first instance before the court only. During the course of investigation and up to filing of charge-sheet he did not say anything about last seen of deceased with accused persons. It is also stated that the deceased was real brother of PW-3 Prem Singh, and therefore, obvious reasons were available for him to make a subjective statement before the court. As per the learned counsel for the appellants the recoveries made too are not reliable in view of the fact that no independent witness has supported the same. It is also emphasized that PW-4 Pratap Singh is planted witness and the prosecution did not choose to produce Ranbeer Singh, the other person, who is said to be present at the time of making recoveries. On the other hand learned Public Prosecutor in general supported the conviction recorded and the sentence awarded. According to learned Public Prosecutor circumstances are self-speaking and the conclusion drawn by the trial court is natural consequence of those. We have considered the arguments advanced and also scrutinized the evidence available. As already stated earlier the entire case of the prosecution is based on two circumstances and the scientific evidence. 8 The first circumstance relating to last seen is based on the statements of PW-3 Prem Singh. The statements of this witness given as per Section 161 Cr.P.C. are available on record as Ex.D/1. From perusal of statements aforesaid it is quite clear that this witness no where stated before the investigating agency that he ever saw Mahendra Singh sitting in the white Ambassador car at Deeppura bus stand. The entire story relating to Deeppura bus-stand, as a matter of fact, came on scene first time before the court. Prior to that this witness never said that while going to Sikar he saw his brother standing at Deeppura bus-stand and then sitting in the Ambassador car, wherein accused Sattar and Mool Singh were already present. True it is, before the court this witness stated that he earlier too detailed everything to the police but the same was not recorded. On minute examination of the statements of this witness we found that he is lacking confidence in the story relating to his availability at bus-stand Deeppura and seeing his brother at the bus- stand aforesaid. This witness in cross-examination stated that his brother Mahendra Singh was standing at Deeppura all alone and the bus in which this witness was traveling stayed there for about 5-7 minutes. No plausible reason is given by this witness as to why he did not choose to talk to his brother during this entire period, though no rush was there. This witness also failed to satisfy regarding sufficient purpose to visit Sikar. In our opinion the introduction of the entire evidence relating to last seen at the first time before the court makes it quite 9 unreliable. It is also pertinent to note that the fact regarding last seen of deceased with accused persons was not even said by this witness to his family members during the period deceased Mahendra Singh was not traceable. This witness never disclosed this fact even to police or to his other family members even after recovery of dead body. This conduct is quite unnatural, and therefore, it will be quite risky to pass conviction of the accused persons on basis of the statements given by this person. So far as PW-4 and PW-6 are concerned they have certainly given a reference of white Ambassador car but in no way they are concerned with last seen of deceased Mahendra Singh by PW-3 Prem Singh. So far as the recoveries made by the investigating agency are concerned, those require examination independently for each of the accuseds. Under Ex.P/15 a Timex wrist watch was recovered at the instance of accused Mool Singh, however, admittedly the wrist watch so recovered was not put for identification, as such, the recovery of same is of no consequence. The recovery of other articles such as currency notes, Galsari and a receipt too are not reliable as they in now case substantially connect the accused with the crime. The Galsari recovered under Ex.P/17 even as per prosecution was made available by the accused persons just to allure deceased Mahendra Singh for getting him married. 10 The important recovery from accused Mool Singh is of blood- stained pant as per recovery memo Ex.P/16. The blood stains available on the pant also match with the blood stains available on the clothes of deceased. Beside this a Katar too was recovered at the instance of this witness by the investigating agency and this Katar was also having blood stains of “A” Group of blood. All these recoveries were made in presence of PW-4 Pratap Singh. Recoveries under Ex.P/15 and Ex.P/16 were also made in presence of Madan Singh. Pratap Singh and Madan Singh were examined before the Court, however, one independent person Ranbeer Singh was not produced before the court by the prosecution. Be that as it may, the recoveries aforesaid too are not reliable for various reasons. From the statements of PW-3 and PW-4 and several other prosecution witnesses it reveals that the accused persons did not come to the village after 26.3.2002. Beside that dead body of Mahendra Singh was found at quite a distant place and in these circumstances placing of recovered articles at house situated in the village that also belongs to the deceased is quite unnatural. It is also important to note that PW-4 Pratap Singh remained present while effecting all recoveries on different dates. We fail to understand that why this one person remained present on every occasion of effecting recoveries on various dates from different places. This fact acquires much importance in view of the fact that other independent person Ranbeer Singh has not been produced by the prosecution in evidence. So 11 far as recoveries made at the instance of accused Sattar are concerned those in no manner relates him with the crime. The clothes recovered at his instance were not found with blood stains matching with the blood of deceased. The stepney, car and the currency notes have also not been adequately connected by the prosecution with the crime in question. As a matter of fact, the entire story of the prosecution is full of doubts and for the reasons given above is not adequate to reach at only conclusion regarding involvement of the accused appellants with the crime concerned. As such, they deserve to receive the benefit of doubt and the same is extended to them by accepting both the appeals. Consequently, the appeals are allowed, the order impugned dated 2.7.2005 stands set aside. The conviction recorded and sentence awarded therein too is set aside. Let the appellants be released from judicial custody forthwith, if not otherwise required. (C.M. TOTLA),J. (GOVIND MATHUR,J.) jgoyal