1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Jagdish vs. State of Rajasthan D.B.Criminal Appeal No.640/2004 against the judgment dated 11.5.2004 passed by Additional Sessions Judge (Fast Track) No.2, Bikaner, in Sessions Case No.45/2003. Date of Judgment :: 5th May, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. RS Gill, for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By judgment and order dated 11.5.2004 learned Additional Sessions Judge (Fast Track) No.2, Bikaner convicted the appellant for an offence punishable under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life term with a fine of Rs.300/- and further to undergo fifteen days' simple imprisonment in event of default in payment of fine. 2 Briefly stated, facts of the case are that at the instance of one Jetharam (PW-2) a case was lodged at Police Station Gajner on 19.7.2002 at 09:30 AM to investigate the offence punishable under Section 302 IPC. As per the first information report (Ex.P/7), in the evening of 18.7.2002 at about 08:00 PM Jagdish son of Chudaram, by caste Dakot (Bhargava), came to the house of informant Jagdish to call his son Omprakash. Alongwith Jagdish, two other persons also came there. At the instance of Jagdish, Omprakash went out but did not return for whole of night. In morning, while making search of Omprakash, father of Jagdish informed that he did not saw either Jagdish or Omprakash. After sometime dead body of Omprakash was found near Johad Payatan. It was also stated in the first information report that Laldas Saadh also came in the night alongwith Jagdish. After making regular investigation, accused Jagdish and Laldas were charge sheeted for commission of an offence under Section 302 IPC. The trial court framed charges against the accused persons for the offence punishable under Section 302 IPC, on denial of the same, they were tried. On 6.9.2003 the case of accused Laldas was transferred to the Juvenile Court, as he was found a Juvenile. 3 The prosecution supported its case with the aid of 10 witnesses and 21 documents. An opportunity was given to the accused to explain the circumstances adverse to him available in the prosecution evidence, wherein he denied all the adverse circumstances and pleaded his innocence. Learned trial court then convicted the accused and sentenced him accordingly. While challenging the conviction recorded and sentence awarded, it is urged that the entire case of prosecution is based on circumstantial evidence and that suffers from several breakages those create doubt about involvement of present appellant in the crime concerned. As such the conviction recorded is bad. It is also pointed out by counsel for the appellant that the Juvenile Court, Bikaner by its judgment dated 5.1.2009 has acquitted accused Laldas from the charge of an offence punishable under Section 302 IPC. On the other hand, learned Public Prosecutor urged that on basis of the evidence of last seen and the recovery made at the instance of accused the trial court rightly recorded conviction of the appellant. We have examined the evidence available and considered the arguments advanced. 4 PW-6 Dr. R.K.Gupta was a member of the medical board that conducted autopsy on the body of deceased Omprakash, thus, he proved the postmortem report Ex.P/15. As per Ex.P/15 body of Omprakash was having several stab wounds and he died due to multiple stab wounds all over body causing hemorrhage and peripheral circulatory failure. The injuries Nos.1, 2 and 3 were found sufficient to cause death. In view of the medical evidence, there is no doubt that death of Omprakash was homicidal one. During the course of investigation a blood stained knife, blood stained pant and a blood stained T-Shirt were recovered at the instance of accused Jagdish. The recovery memo is available on record as Ex.P/3. As per Ex.P/5, a blood stained knife, a blood stained pant and blood stained banian were recovered at the instance of juvenile accused Laldas. All the articles aforesaid were sent for serological examination to Forensic Science Laboratory, Jodhpur, a report whereof is available on record as Ex.P/21, and as per that, the knife recovered at the instance of Laldas, the knife recovered at the instance of accused Jagdish, the pant of Laldas, the pant of accused Jagdish and pant and shirt of deceased Omprakash were found to be stained with “B” group of blood. 5 PW-2 Jetharam, PW-3 Smt. Pana, PW-4 Smt. Sukhi Devi and PW-10 Bhanwari wife of deceased Omprakash were produced before the trial court to substantiate the evidence relating to last seen. As per PW-2 Jetharam, on 18.7.2002 at about 08:00 PM Omprakash went out of the house alongwith Jagdish and Lala. This witness also stated that his son Omprakash was a friend of Jagdish and there was no enmity between them. PW-2 Jetharam also stated that his family and family of accused Jagdish were having quite cordial relations. This witness also stated that his son was having enmity with Ramdev whose mother earlier threatened to kill Omprakash. He also stated that mother of Ramdev on the 10th day, after death of Omprakash accepted in front of several villagers that she instructed certain 'gunda' elements only to cut hands and legs of Omprakash but, they killed him. As per this witness, at the first instance Ramdev was taken under custody by police after murder of Omprakash but subsequently he was left out. PW-3 Smt. Pana also stated that her son Omprakash left his house at about 7-8 PM alongwith Jagdish and Lalchand and thereafter he did not return to home for entire night. She also stated about enmity of Omprakash with one Ramdev. As per this witness also mother of Ramdev, in presence of number of persons accepted that she called certain 'gunda' elements to 6 give beating to Omprakash but they killed him. PW-3 Smt. Pana further stated that after death of Omprakash and after acceptance about calling of 'gunda' elements, Ramdev and his mother left the village as advised by other villagers. This witness quite empathetically stated that her son Omprakash has been killed at the instance of Ramdev and his mother. She also stated that Ramdev and his mother were not included in the list of accused persons merely for the reason that they bribed the Thanedar and Circle Inspector. As per PW-3 Smt. Pana, one Bhomraj Pradhan too approached the Thanedar for not including Ramdev and his mother as accused in murder case of her son. PW-4 Smt. Sukhi Devi stated that in the evening of 18.7.2002 she was standing near court yard, wherefrom she saw that Jagdish and Laldas called her brother-in-law Omprakash. PW-10 Bhanwari is wife of deceased Omprakash and as per this witness her husband Omprakash on 17.7.2002 went out of the house with Jagdish and Laldas. This witness with all confidence also stated that her husband was killed by Ramdev and his mother though he was called out from house by Jagdish. PW-7 Kishan Singh narrated all the steps taken during the course of investigation being investigating officer. 7 Learned trial court while relying upon the statements of PW-2 Jetharam, PW-3 Smt. Pana, PW-4 Smt. Sukhi Devi and PW-10 Bhanwari and also the recovery made at his instance found the prosecution story genuine and convicted the accused. True it is, the evidence relating to last seen is quite consistent and, therefore, the testimony of PW-2 Jetharam, PW-3 Smt. Pana, PW-4 Smt. Sukhi Devi and PW-10 Bhanwari cannot be doubted. All these witnesses categorically stated that Jagdish came to their house and at his instance Omprakash went out. All these witnesses also states about presence of Laldas with accused Jagdish. PW-4 Smt. Sukhi Devi in quite unambiguous terms stated that she saw Laldas standing outside the house when Jagdish came to call deceased Omprakash. However, the evidence relating to last seen is required to be examined in totality and if that is connected and corroborated adequately with the chain of other definite and cogent evidence indicating only one conclusion, then it should be relied upon. The evidence relating to last seen in isolation cannot be a definite piece of evidence and that may not be sufficient to settle conviction. In the present case the prosecution tried to connect the evidence of last seen with the recovery made at the instance of 8 accused. The recovery was made in presence of PW-5 Naharmal. This witness though stated about recovery of clothes and knife, but further accepts regarding open access of the place of recovery. The investigating officer, Kishan Singh, also admitted that the place of recovery was open to access and the same was not closed. As a matter of fact no adequate evidence is available on record to establish that the knife recovered was in exclusive possession of the accused. All these circumstances acquires more significance in view of the fact that PW-2 Jetharam, PW-3 Smt. Pana, PW-4 Smt. Sukhi Devi and PW-10 Bhanwari at one hand state that the accused was keeping cordial and friendly relations with deceased Omprakash and on other hand also apprehend involvement of some Ramdev and his mother in the crime. Sufficient evidence is also available on record that at the first instance police too had suspicion on Ramdev, thus, kept him under vigil. PW-3 Smt. Pana who is mother of deceased, quite specifically states that though Jagdish (present accused) called deceased Omprakash from house but he was killed by Ramdev and his mother only. She further states that mother of Ramdev in presence of several persons admitted that she instructed certain 'gundas' just to beat Omprakash but they killed him. This version is maintained by PW-2 Jetharam, PW-4 Smt. Sukhi Devi and PW-10 Bhanwari. PW-3 Smt. Pana quite 9 confidently stated that Ramdev and his mother were left out as they bribed certain officers. Adequate evidence is also available on record that under the instructions of the villagers Ramdev and his mother left the village after the incident in question occurred. All these circumstances create a reasonable doubt in believing the prosecution story and disbelieving the defence taken regarding involvement of some other person than the present accused in the crime. Learned trial court while convicting the accused appellant failed to consider this aspect of the matter. We are of the considered opinion that the doubt existing makes the accused appellant entitled for acquittal. Accordingly, this appeal is allowed. The conviction recorded and sentence awarded under the judgment impugned dated 11.5.2004 passed by learned Additional Sessions Judge (Fast Track) No.2, Bikaner in Sessions Case No.45/2003 is set aside. Accused appellant Jagdish is acquitted from the charge i.e. for committing an offence punishable under Section 302 IPC. Let he be released from judicial custody forthwith, if not otherwise required. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.