1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. CRIMINAL APPEAL No. 855 of 2002 BHANWARA RAM V/S STATE 2. CRIMINAL JAIL APPEAL No. 951 of 2002 BHANWARA RAM V/S STATE Date of Judgment : 15th Dec. 2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. NARPAT SINGH, for the appellant / petitioner Mr. LR UPADHYAY, PP, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) 2 These two appeals arise out of common judgment passed by the learned Addl. Sessions Judge (F.T.) Pali, dt. 17.8.2002, in Sessions Case No. 1/2002, convicting the appellant for offence under Section 302 IPC, and sentencing him to undergo imprisonment for life, and also imposing a fine of Rs. 5,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. One appeal being Appeal No. 951/2002 has been filed by the accused from jail, while the other Appeal No. 855/2002 has been filed by the accused as represented appeal. As such, both the appeals are being decided by this common order. Brief facts of the case are, that on 14.10.2001 at about 11.35 in the night Control Room informed S.H.O., P.S. Kerala to the effect that telephone has been received from Sarpanch of village Gadvara that a lady has been murdered in village Jetpur, which telephone was received by the Supdt. of Police. The S.H.O. went on the spot along with force on 15.10.2001, where, at about 6 in the morning Bhera Ram s/o Sona Ram husband of the deceased submitted a written report Ex.P-24, to the effect, that he has 5 daughters and two sons; out of them elder daughter Kamli was married to the appellant some 2 years ago, the accused was living along with the informant, and was grazing his herd. It was alleged that about an year ago the accused took his daughter to his native village Feench. However, after few days he returned to Jetpur. With this it was alleged that on 14.10.2001 at about 10 in the morning the accused and wife of the informant Moni (mother in law of the appellant) had gone to graze the herd in the forest, while his daughter Kamli wife of the appellant and one 3 Jaga Ram s/o Harlal had gone to graze the camels, who informed that at about 6 in the evening they had seen the appellant and the deceased Moni grazing herd near Pritam Nadi. It is then alleged that at about 8 in the evening the herd of the sheep came all alone, whereupon search was made of the appellant and Moni, and on the basis of the information received from Kamli and Jagaram search was made near Pritam Nadi, where there are trees of prosopis juliflora (Angreji Babool), there in the grass the dead body of Moni was lying smeared in blood, and was having injuries on forehead, and throat. It was also alleged that the deceased had been killed by his son in law, the appellant, and has thrown the dead body there, and has absconded. It was also alleged that the appellant was living in his house as Ghar Jawai, but he did not want to live, and he has committed the offence. The Lathi of the appellant smeared with blood, the footwear of the deceased, and a blood stained blade was lying on the spot. The “Odna” of the deceased was also smeared with blood. On this report a case was registered under Section 302 IPC, and after the investigation, including site inspection, the things found on the spot were seized, autopsy was got conducted, the wearing apparels of the appellant were seized, the accused was arrested, and on his information, the weapon of offence, being knife, was recovered. The seized articles were sent to Forensic Science Laboratory, and ultimately challan was submitted. The learned trial court framed charges which obviously were denied by the accused. The prosecution then examined some 20 witnesses to support the case, and 4 produced some 28 documents in evidence, and 12 articles were got exhibited. The appellant in his statement under Section 313 took a stand of denial, and stated, that his father in law does not want to send his wife with him, and rather wants to give her away at some other place. Learned trial court after completing the trial convicted, and sentenced the accused as above. Arguing the appeal it was contended that even according to the prosecution the case rests on circumstantial evidence, and the circumstances relied upon by the prosecution are; (1) last seen, (2) motive (3) recovery of weapon of offence being knife on the information of and at the instance of the accused (4) recovery of Lathi of the accused from the place of incident (5) recovery of blood stained Jhabba from the person of the accused at the time of arrest which was containing blood stains being the blood of human origin, and of the same group as that of the deceased, and the last circumstance relied upon is, that the accused absconded. It was contended that the circumstance, being the recovery of knife is not established, as it is clear from the evidence of P.W. 4 Mehra Ram, P.W. 14 Jaga Ram, and P.W. 18 Kamli, that at the time of site inspection the knife was lying near the dead body, as such the whole story of information and recovery is a myth. Then, regarding the seizure of blood stained Jhabba of the 5 accused at the time of arrest, it was submitted that the accused was arrested after two days, i.e. 14.10.2001 at 7 P.M., and from the arrest memo it is clear, that it is not even shown as to from where he was arrested, the Motbirs are police constables, and it has clearly been established by P.W. 18 Kamli that Jhabba was also lying near the dead body itself being Article No. 11. In this regard it was also submitted that even if all the above contentions are not accepted, still the sample of the blood of the accused was not collected, to establish, that the blood group of the accused is not the same as that of the deceased, and unless that is done, this could not be an incriminating circumstance against the accused. Then, submitting about the circumstance of motive, it was contended, that it has clearly come in the evidence of various prosecution witnesses, that the accused was living with the informant for the last 10-12 years, and some of the witnesses have also denied the existence of this motive, and in any case this possibly could not be the motive for killing the mother in law, as it is nobody's case that mother in law was opposing or resisting to send the appellant's wife with the appellant. Then, assailing the evidence of last seen it was submitted, that firstly the evidence is wholly improbable, inasmuch as in the course of normal human conduct, the appellant was supposed to go with his wife for grazing the herd, and not with the mother in law, and on the other hand the appellant's wife going to graze the camel with third person Jaga Ram, rather it should have been other way round, viz. the appellant and his wife would have gone to graze the herd, and the mother in law and Jaga Ram would have gone to graze the camel. It was 6 also submitted, that all said and done, even if this circumstance is believed, yet solely on that basis conviction cannot be recorded in a case depending on circumstantial evidence. On other hand learned Public Prosecutor supported the impugned judgment. We have considered the submissions, and have perused the impugned judgment and the record. Learned counsel for the appellant placed reliance on few judgments, which we shall discuss at appropriate place. From perusal of the record it transpirs that most important witnesses are Bhera Ram informant, father in law of the appellant who has been examined as P.W. 19, P.W. 4 Mehra Ram, P.W. 14 Jaga Ram, P.W. 18 Kamli. This P.W.14 and 18 are the witnesses of last seen. Then P.W.2 and P.W.20 are the police officials, out of which P.W. 2 is the witness of arrest, while P.W.20 is Investigating Officer. We think it better to consider the case circumstance-wise. First of all we propose to take the evidence of motive. In this regard P.W. 19 Bhera Ram, the father in law of the accused, has deposed that his daughter Kamli was married with the accused some 2 years ago. The accused is resident of village Feench (wrongly mentioned as Kheench), and he lives as Ghar Jawai. On one occasion Kamli and accused went to village Feench where they lived for few days, and returned, because they had no 7 means of livelihood there, still the accused did not want to live as Ghar Jawai, and wanted to take Kamli at Feench, to which the witness and the deceased were not agreeable, as there they had no means of livelihood, and on that count he was feeling ill-will with the deceased. In cross- examination he has deposed that Bhanwara Ram is living as his Ghar Jawai for the last 10 years, while he was married two years ago. The other witness in this regard is P.W. 14 Jaga Ram, who has deposed in examination in chief, that accused Bhanwara Ram was Ghar Jawai of Bhera Ram. Bhanwara Ram wanted to take away Kamli to village Feench, to which the deceased was not agreeable, therefore, there was bad blood between the deceased and Bhanwara Ram. In cross examination he has deposed that Bhanwara Ram is living as Ghar Jawai with Bhera Ram for the last 10 years. The marriage between them was solemnised five years ago. Kamli lived at village Feench for the last 5-6 months, and returned to village Jetpur. He also deposed that Bhera Ram and Mani did not get any case registered against Bhanwara Ram for the bad blood. Next witness in this regard is P.W. 16 Mangilal who is Sarpanch of village. He has deposed in cross examination, that Kamli is wife of Bhanwara Ram, Bhanwara Ram is living as Ghar Jawai for the last 7-8 years. Bhanwara Ram wanted to take Kamli at village Feench, but Mani did not want, and Mani wanted to keep Kamli with herself, and on that count the accused was annoyed. In cross examination he has deposed that he was instrumental in keeping Bhanwara Ram as Ghar Jawai. He has also deposed he has gone any number of times to village Feench of Bhanwara Ram. In this sequence we may also refer to the statement of P.W. 4 Mehra Ram. He has denied to be 8 aware of the accused being desirous to carry Kamli to village Feench (wrongly mentioned as village Kheench). He also deposed that Bhanwara Ram is living as Ghar Jawai for the last 10-12 years. He was married with Kamli. He belongs to village Feench. He had gone to his village some 2-3 months before the incident, and returned. Then, we may also refer to the statement of Kamli who has deposed, that Bhanwara Ram was living at their house as Ghar Jawai. She had gone to village Feench (wrongly mentioned as Kheench) along with Bhanwara Ram some 12 months ago, lived there for 3-4 months but there being no means of livelihood both of them returned to village Jetpur. She has also deposed that now Bhanwara Ram does not want to live as Ghar Jawai, and her father advanced good counseling to live in village Jetpur and graze the herd in absence of any means of livelihood at village Feench, and on that count he was annoyed with her parents. In our view, from the resume of the evidence as catalogued above, it is clear, that all the witnesses have their own version to give out, about the length of time for which the accused was living as Ghar Jawai. The length of time before which they were married, the year during which Kamli went to village Feench, the duration of Kamli's stay at village Feench. It is required to be comprehended that if the accused was living at the house of Bhera Ram since a decade before marrying to Kamli, while at the time of occurrence the accused was only around 24-25 years of age, obviously he started living in the house of Bhera Ram just at pre-adolescent age, and obviously was very much mixed with the family, and in that 9 process he was married with Kamli. In such circumstances, it does not stand to reason, that he would nurse a grudge, or entertain a motive to kill Mani. Thus, in our view, the circumstance of motive cannot be said to be satisfactorily established. Now, we take up the circumstance of recovery of knife being the weapon of offence. In this regard recovery memo of knife is Ex.P-22, pursuant to the information recorded vide memo Ex. P-25. According to Ex.P-25 the accused is said to have given out, that after committing the incident he had concealed the knife near the stem of English Babool by excavating the earth, which is not in the knowledge of anybody, and he is prepared to get it recovered. According to Ex.P-22 accordingly recovery was affected. The Motbirs of Ex.P-22 are Teja Ram and Dhana Ram, out of which Teja Ram has not been examined, and Dhanna Ram has been examined as P.W. 13. This P.W. 13 has deposed, that knife was produced by the accused, which was smeared with soil and blood. The knife was sealed, and seized vide Ex.P-22, and the site Plan of site was prepared vide Ex.P-23. In cross examination he has deposed that knife was taken out from Pritam Nadi (wrongly mentioned as Kitam Nadi). Then, the I.O. P.W.20 Niranjan Pratap Singh has deposed, that under custody the accused Bhanwara Ram gave information Ex.P-25, and pursuant thereto he got recovered the knife, memo whereof is Ex.P- 22, and has proved the signatures. As against this, a look at the statements of P.W. 4 Mehra Ram, P.W. 14 Jaga Ram, and P.W.18 Kamli would show, that they have entirely different story to depose, inasmuch as P.W. 4 Mehra Ram 10 has deposed, that when the deceased did not return, and they learnt from Kamli and Jaga Ram about they having been seen near Pritam Nadi (wrongly mentioned as Kitam Nadi) he along with Bhera Ram, Sarpanch, and various other persons of village went to Pritam Nadi to search, and found the dead body lying there. He has further deposed that two Lathis were found; one was having a ring while one ring was lying separately. Out of two; one lathi was of Bor tree, and the other was Bamboo stick, and the Bamboo stick was damaged. He has also deposed that one iron tin of 1 Kg. was lying wherein silver pedal and bengals were lying, golden earrings were lying on the chest of the corpus, Odna was lying at some distance, which was smeared with blood. Then he has also deposed, that the deceased was having knife injuries on her face, and knife was lying at the spot itself. He has also identified the knife as Article 12, to be the same which was lying near the body of Moni. This he has deposed in examination in chief itself. Then, we come to the evidence of P.W. 14 Jaga Ram. He too claims to be a person having gone to search Mani, and deposed to have found the dead body lying there. One Bamboo stick was lying there. Odna was lying at some distance. One blade was also lying there, broken bangles of Mani were also lying there. She was having injuries on the head and neck. He has also deposed that he has identified the broken pieces of bangle, Odna and Lathi. Then in cross-examination he has deposed, that when he went to see the dead body in the morning, knife was lying near the body, obviously on 15.10.2001. Then, we come to the evidence of P.W. 18 Kamli, she also claims to have accompanied in search of deceased, and deposed that the 11 body was bearing injuries on the forehead, the body was smeared with blood, injuries were there on the neck, one pouch of Miraj, stained with blood, was lying near the body, one blood stained blade was also lying, one Lathi, stained with blood was also lying, one Lathi of her mother was also lying. Odna was also lying being of pink colour, and footwear of the mother were also lying there, and knife was also lying there. Then, she has identified the knife being Article 12, as the knife found lying near the dead body. In our view, thus when it is clearly established by the evidence of three witnesses P.W. 4 Mehra Ram, P.W. 14 Jaga Ram, and P.W. 18 Kamli, who are the persons who had gone to search the deceased, that when they found the dead body, the knife was lying near her. This obviously belies the whole theory of accused giving information, or any discovery being affected in consequence of that information. Thus, this circumstance also cannot be said to be incriminating circumstance against the accused. Now, we take up the circumstance of recovery of blood stained Jhabba of the accused, bearing blood of human origin and of A Group. In this regard, arrest memo of the accused is Ex.P-1. According to Ex.P-1 the accused was wearing a white Dhoti which was dirty at various places, and Jhabba white like, which was torn from various places, and was having patches. In this memo it is not mentioned that shirt was having any blood stains. It also does not appear as to from where the accused was arrested, and obviously the two Motbirs are constables no. 1148 and 1029 of the same police station. Then, a look at Ex.P-2 12 the seizure memo of Jhabba shows, that the shirt which he was wearing was taken into possession, and it shown to be bearing blood stains. It is mentioned, that the rear side pocket is lost having been torn away. It is having patches, and it is dirty. It is, of course, mentioned that the blood stains have been encircled by blue ink (ball pen) but it is not mentioned as to how many number of stains were there. The attesting witness of this seizure memo are the two constables of the same police station being constable no. 1148 and 708, who are P.W.2 and P.W. 10 respectively. A look at the evidence of P.W. 2 Gopa Ram shows, that he has proved the arrest memo and the seizure memo Ex.P-2. In cross examination he has deposed, that at the time of arrest public persons were not there, and S.H.O. did not call any one, so was the situation at the time of seizure memo. Then, similar is the evidence of P.W.10 Prakash Chandra. However, he has deposed that he does not remember as to whether the accused was given another Jhabba to wear or not. Then, P.W. 20 Niranjan Pratap Singh, I.O. has deposed to have arrested the accused during investigation vide Ex.P-1, and to have seen the blood stained old Jhabba, which was seized vide Ex.P- 2. However, a look at the statement of P.W. 18 Kamli would show, that she has identified Jhabba as Article 11, to be belonging to the accused, and has deposed to have seen this also along with all other articles near the dead body. In our view, this admission of P.W. 18 about having seen the Jhabba Article 11 near the dead body, gives a deadly blow to the entire story of it being seized 13 from the person of the accused at the time of arrest, vide Ex.P-2. This is one aspect of the matter. At this place, the observations of the Hon'ble Supreme Court in Shanker Lal Vs. State of Maharashtra reported in AIR 1981 SC-765 may also be gainfully referred, that prosecution has not collected the sample of the blood of the accused, to eliminate the possibility about the blood found on the shirt to be of the accused. Thus, in the totality of circumstances, this circumstance also does not stand as incriminating circumstance against the accused. In our view, when all these material circumstances which the learned trial court has found against the accused are not either established, or constitute incriminating circumstance against the accused, we immediately invoke the established legal principle of the requirement of proof, in the cases, depending on circumstantial evidence, being; (i) that each circumstance relied upon by the prosecution should indicate towards the guilt of the accused, (ii) each circumstance should be established by reliable and cogent evidence by the prosecution, (iii) all such circumstances, so established should form a complete chain (a) establishing the guilt of the accused beyond reasonable doubt, and conjunctively, (b) negativing the innocence of the accused on all reasonable hypothesis. If the remaining material relied upon by the prosecution were to be considered against the accused on 14 the above parameters, it does not at all form any chain whatever, much less conclusively establishing the guilt of the accused, so also negativing the innocence of the accused on all reasonable hypothesis. The net result of the aforesaid discussion is that the conviction, as recorded by the learned trial court cannot be sustained. Resultantly, the appeals are allowed. The impugned judgment is set aside, and the appellant is acquitted of the charges leveled against him. He be set at liberty forthwith, if not required in any other case. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/