1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Darshan Singh Vs. State of Rajasthan DB CRIMINAL APPEAL NO.104/2003. DATE OF JUDGMENT: 7th July, 2010. HON'BLE MR.JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE S.S. KOTHARI Mr. Biri Singh Sinsinwar with Mr. Rajesh Choudhary for the appellant. Mrs.Rekha Madnani PP for the State. BY THE COURT (PER HON'BLE PATHAK,J): This D.B. Criminal appeal under section 374(2) Cr.P.C. has been filed against the judgment and order dated 3rd January, 2003 passed by the learned Additional Sessions Judge (Fast Track) Alwar in Sessions Case No.32/2002 (41/2002) whereby the accused-appellant has been convicted and sentenced as under: Under section 302 IPC Imprisonment for life with a fine of Rs.5,000/-, in default of payment of fine to further undergo one year rigorous imprisonment. Under section 4/25 of the Arms Act two years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo three months rigorous imprisonment. Both the above sentences were ordered to run concurrently. 2 Briefly stated, the facts of the case are that on 17.1.2002, Kailash Chand Soni (PW-1) submitted a written report at the spot to Sardar Singh (PW-11), SHO police station Kotwali, investigating officer of the case. In the above written report it was, inter-alia, stated that his younger brother's son Rajendra Kumar Soni was living in Halwai pada in front of Jain Hospital and was doing tailoring business from his house. It is further stated that between 10.30 and 11.00 a.m., one Hari Ram Soni, a relative of the complainant, informed him that Rajendra Soni has been murdered. It is also stated that on hearing telephonic message, he immediately reached at the house of the deceased and found the police there. It is also stated that the deceased's wife and children were not in the house as they had gone out to some relatives. On making inquiry in relation to the incident from the neighbourers and other persons, it was found that Rajendra Soni, the deceased, was alone at the house. It was also revealed that the deceased was in the company of Shanu, Anil and Darshan and after some time, Shanu and Anil left the place of incident and the accused Darshan alone remained there and he had all doubts that the accused Darshan Singh has committed murder of deceased Rajendra Soni because 1-1/2 months prior to the incident there was some quarrel of the deceased with the accused as a result of which deceased sustained head injury. 3 The above report Ex.P-1 was handed over to Ummed Singh, constable of the police station who took the same to the police station and there a case was registered and a formal FIR (Ex.P-23) was chalked out. During the course of investigation, the accused was arrested on the very same day vide memo Ex.P-24. On 19.1.2002 at 10.40 a.m. accused made a disclosure statement under section 27 of the Evidence Act to the effect that he has kept the sword in the court-yard of his house which can be recovered at his instance. In pursuance of his information on the very same day i.e. on 19.1.2002 the sword was recovered vide memo Ex.P-11 in presence of Ram Kishore (PW-7). The accused-appellant further gave a disclosure statement in relation to a pair of cotton shoes and a cotton jersy. This information was recorded in memo Ex.P-26 at 10.10 am on 19.1.2002. In pursuance of above disclosure statement, recovery was effected at 11.40 a.m. on 19.1.2002. In the disclosure statement, it was stated that the shoes and jersy after washing have been kept in a room of the house and he was prepared to get the same recovered. In pursuance of the information given, recovery was effected vide memo Ex.P-12. The recovered articles were sealed. It may be stated here that on the sword as well as on the sole of the cotton shoes and on the jersy, blood was seen. On sending the seized articles for chemical examination to the FSL, it was disclosed that it was human blood but no blood 4 group could be detected. The site was inspected and site plan Ex.P-2 was prepared. The autopsy on the dead-body of deceased Rajendra Soni was performed by Dr. Amar Singh Rathore (PW-6). The post-mortem report is Ex.P-10. After completion of investigation, charge-sheet was filed against the accused-appellant for the offence under section 302 IPC read with section 4/25 of the Arms Act. After hearing both sides, learned trial court framed charge under section 302 IPC read with section 4/25 of the Arms Act on 20.4.2002 to which the accused denied and claimed trial. In support of its case, the prosecution examined as many as 12 witnesses and tendered several documents in documentary evidence. After close of the prosecution evidence the explanation from the accused was sought under section 313 Cr.P.C. The accused in the explanation stated that he has been falsely implicated in the case and he was not even available at the spot on the day of incident. No evidence in defence was produced. The trial court after hearing final submissions, convicted and sentenced the accused as indicated here-in- above. Hence, the present appeal has been filed. We have heard learned counsel for the accused- appellant as well as learned public prosecutor for the State and 5 carefully scanned the evidence and material available on record. In the present matter, following points require consideration: (i) Whether the death of the deceased was natural or homicidal? (ii) Whether circumstantial evidence relied upon by the trial court in convicting the accused completes the chain of circumstance so as to draw the only conclusion that it was the accused who murdered deceased Rajendra? (iii) Whether the judgment and order passed by the trial court convicting the accused under section 302 IPC read with section 4/25 of the Arms Act requires to be maintained? Now, we proceed to decide the points framed by us. POINT NO.(i): Dr. Amar Singh Rathore (PW-6) while posted as Medical Jurist in General Hospital, Alwar on 17.1.2002 conducted post-mortem on the dead body of deceased Rajendra Soni on the request of ASI, Police Station Kotwali, Alwar. In his statement he has stated that the death of deceased Rajendra Soni took place within 24 hours of conducting his post-mortem. He has also stated that he found one incised wound, 15x6 cm- anterior neck and both sides of neck, transversely placed with red clotted blood more on right side 9 cm and 6 cm on left side, clear cut, thyroid cartledge and 6 laryx cut, oesophagi clear cut, muscle of both side neck cut- both common carotid arteries of right side- veins of right side cut with hematoma- all nerves cut- all vessels of neck cut with hematoma, both side vessels with arteries cut with hematoma. In the opinion of the doctor, the injury found on the person of the deceased was sufficient in the ordinary course of nature to cause death. He has also stated that arteries and veins were cut which resulted in hemorrhage. In the cross-examination, the doctor has stated that no viscera of the deceased was collected as it was not required and there was no sign present of consuming liquor by the deceased as his nails did not change into blue colour. He has also stated that the weapon used was sharp edged weapon but he could not say as to whether it was a double edged weapon or it was having only one sharp edged side. The inquest report is Ex.P-6. From the perusal of the inquest report, it reveals that all the panchas were of the opinion that the deceased died on account of neck injury by which trachea was cut. In view of statement of Dr. Amar Singh Rathore (PW-6) and on perusal of the injury caused by sharp edged weapon on the neck of the deceased which in the opinion of the doctor was sufficient in the ordinary course of nature to cause death, we are of the opinion that death was not a natural death but it was a homicidal death. 7 POINT NOS. (ii) & (iii): Since both the above points are inter-related to each other, they are being answered together. It has been the contention of the learned counsel for the appellant that in the instant case chain of circumstances is not complete and further the learned trial court has committed illegality in appreciating the evidence and accused has wrongly been convicted for the offence under section 302 IPC read with section 4/25 of the Arms Act. On the other hand, learned public prosecutor has contended that the learned trial court finding the chain of circumstances complete has rightly convicted and sentenced the accused appellant, therefore, the judgment of conviction and order of sentence requires to be maintained. We have considered the submissions made before us. In the instant case the learned trial court has placed reliance on four circumstances, namely; (one) motive; (two) last seen; (three) recovery; and (fourth) result of FSL examination of the articles. It is to be seen that the learned trial court after appreciating the evidence came to the conclusion that there was motive available to commit murder of deceased Rajendra Soni because the accused had illicit relations with Beena Soni (PW-3), wife of the deceased. The learned trial court has 8 further found that few months before the incident, some quarrel took place between the deceased and the accused. The learned trial court in this regard has placed reliance on the evidence of Kailash (PW-1) and Beena Soni (PW-3). Kailash Soni (PW-1) has in his statement stated that after receiving a telephonic call from Hari Ram Soni, one of his relative, he reached at the spot and found that the police was there and there he handed over the written report Ex.P-1 to the police. In the report needle of suspicion was raised against the accused on account of his illicit relation with the wife of the deceased and also some quarrel having taken place between the accused and deceased few months before the incident. In the quarrel, the deceased had sustained head injury. A perusal of the entire statement of Kailash Soni (PW-1) would reveal that it is only hear-say evidence. There is no material available on the file to corroborate his statement. There does not appear any report in relation to the quarrel took place between the accused and the deceased a few months before the incident. Smt. Beena Soni (PW-3) has in her statement stated that the accused never teased her but he used to take eye on her. In the cross-examination she has stated that the accused and two other persons, namely; Shanu and Anil though used to come to her house and they along with 9 deceased used to take liquor regularly and they did not stop taking liquor at her house in spite of raising objections several times by her. A perusal of the statements of Kailash Soni and Smt. Beena Soni, PW-1 and 3 respectively, it does not appear that there was any motive available in relation to committing murder of the deceased by the accused. Simply on the basis of some quarrel between the accused and deceased having taken place few months before the incident, motive cannot be attributed to the accused to commit murder of the deceased. In our considered opinion, the learned trial court has committed illegality in arriving at the conclusion that the accused had a motive to commit murder of the deceased. It is further to be seen that the learned trial court has relied upon the testimony of Kumari Sangeeta (PW-2) who is a child witness and at the relevant time she was 15 years of age. In her statement, she has stated that on 15.1.2002 some boy came to her house and asked her to close the shop where the deceased used to do tailoring business. She has stated that she visited the shop and found crowd and police there and also found that his brother was murdered by somebody. She has also stated that she did not know about the fast friends of the deceased. She has been declared hostile and when she was confronted with her police statement Ex.D-1 and particularly its portion 'A' to 'B' to which she completely denied. 10 Portion 'A' to 'B' of Ex. D-1 reads as under: “कल िदनाक 16.1.2002 को मै रािऽ करीब 7.30 पर मेरी पढाई की बुक लेने के िलये भाई की दकान पर हलवाई पाडा मे आई ु I मै आई उस समय दकान के पास वाले कमरे मे भाई राजेंि ु सोनी के साथ अिनल, सानू और दशर्न िसंह बैठे थेI मै मेरी पास बुक िनकालने लगी उस समय पर सानू और अिनल उठ्कर चले गयेI मैने भाई से कहा मै जा रही ह और अपने घर चाव◌ंड ू ् पाडी मे आ गयीI जब मै भाई के पास आई उस समय मेरे भाई के पास दशर्न िसह बैठा थाI दशर्न िसह ने ही मेरे भाई की हत्या की हैI” In her cross-examination, she has stated that when she visited the house, accused and other persons were taking liquor. She has also stated that she knew Shanu and Anil from before. She has also stated that the distance of her house and the house of deceased was 15 minutes walk. A perusal of the examination in chief of the witness clearly indicates that she has stated not even a word against the accused-appellant and when she was declared hostile, she completely denied the material portion of her police statement Ex.D-1. A further perusal of her cross-examination conducted by the defence side clearly shows that her testimony is not worth reliance. The portion 'A' to 'B' of Ex.D-1 was read over to her to which she completely denied. After carefully scanning the evidence of Kumari Sangeeta (PW-2), we are of the opinion that her statement in relation to the last seen evidence is not worth reliance. The learned trial court has not properly appreciated the evidence 11 while placing reliance on her testimony in relation to the last seen evidence. It is significant to note that in the instant case Kailash Soni (PW-1) has stated that in the evening of 16.1.2002, three persons were with the deceased and two of them; Anil and Shanu, had left the place and it was only the accused who remained there and he had suspicion that accused-appellant might have committed murder of the deceased. The evidence which has been led in this case clearly indicates that as regards two persons, namely Shanu and Anil are concerned, there statements were recorded. It also appears that soon after the incident, the above persons fled away from the place of occurrence. It was only the accused-appellant who was arrested on the same day but no disclosure statement was made by him on 17th and 18th January, 2002. It was on 19.1.2002, two disclosure statements were made; one regarding sword and another regarding cotton shoes and jersy. As regards cotton shoes and jersy is concerned, blood was found on these articles but no blood group could be detected in the FSL report. It is also important to note that the accused in the disclosure statement Ex.P-26 disclosed that he had kept the shoes and jersy after washing them in a room of his house. It no where makes a mention that the accused made a disclosure statement to the effect that the shoes and clothes which he wore at the time of incident were 12 subsequently kept in the house. Ex.P-26 is the disclosure statement to the effect that after washing the shoes and jersy, he kept them in a room of his house. Same is the position of another disclosure statement Ex.P-25 in relation to sword. In the disclosure statement, it is stated that he had kept the sword in the court- yard of his house behind the iron 'tanki' in a concealed manner. It does not make a mention that the sword which he had concealed in the house was used in the incident or was having blood on it. It is strange that the blood was seen on the sword. Be that as it may, it cannot be denied that after two days of the arrest of the accused, disclosure statement was made by the accused and in presence of Ram Kishore (PW-7), the above recoveries were made in relation to sword, shoes and clothes. The witness in relation to recovery is Ram Kishore (PW-7). He has stated in the examination-in-chief that the sword, clothes and shoes were recovered at the instance of accused-appellant but in the cross-examination he says that at the time of recovery he was away from the house from where the recovery was made. He has also stated in the cross- examination that the recovery memos were already prepared and he put his signatures on the recovery memos. He has also stated that the police brought recovered material which was wrapped in a piece of cloth. He has also stated that he did not know as to what was reduced in writing in recovery memos 13 Ex.P-11 and P-12. He has also stated that recovery memos Ex.P-11 and P-12 were prepared at the spot. The suggestion put to the witness was accepted that Kailash (PW-1) is his friend. Thus, in view of the cross-examination conducted from the witness, it appears that at the time when the alleged recoveries were made from the house of the accused, he was away from the house and in fact he had not seen the place from where the recoveries were made. After carefully examining the entire statement of the witness, we are of the opinion that the testimony of the witness of recovery is not worth reliance and the accused cannot be connected with the crime on the basis of alleged recovery as the same inspires no confidence though the learned trial court has relied upon the testimony of this witness Ram Kishore (PW-7). The reasons for not finding the recovery made in the case reliable as discussed here-in-above shows that the disclosure statements were made after two days of the arrest of the accused-appellant and further when the accused washed the blood from the clothes and shoes, why he did not wash the blood from the sword and further in the disclosure statement nothing has been stated that the sword which the accused got recovered was used in the incident. No blood group could be detected on the recovered materials. Thus, the learned trial court, in our opinion, has not properly appreciated the evidence in relation to recovery made in the case. 14 It is not necessary to discuss the evidence in regard to the report of the FSL in detail for the reason that the blood group could not be detected on the articles recovered and the recovery made in this case creates doubt about its genuineness, therefore, in the absence of any cogent evidence to connect the accused with the crime and merely on the basis of recovery of the articles made on which human blood was found, the accused cannot be held guilty for the offence under section 302 IPC read with section 4/25 of the Arms Act. In view of the fore-going discussion, we are of the opinion that the chain of circumstances is not complete and the learned trial court has not properly appreciated the evidence. In the above circumstances the accused is not liable to be convicted and sentenced and the judgment of conviction and order of sentence is liable to be set aside. In the result, this appeal is allowed, the judgment of conviction and order of sentence dated 3rd January, 2003 passed by the Additional Sessions Judge, Fast Track, Alwer in Session case No.32/2002(41/2002) is set aside. The accused is acquitted of the charge. He is in jail. He be set at liberty forthwith if not required in any other case. (S.S. KOTHARI),J (S.P.PATHAK) J. BBLM