1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Surendra Kumar @ Geji & Anr. vs. State of Rajasthan D.B.Criminal Appeal No.1295/2003 against the judgment dated 16.10.2003 passed by Additional Sessions Judge (Fast Track), Sriganganagar, in Sessions Case No.79/2002. Date of Judgment :: 12th March, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Mridul Jain ] Mr. Shaitan Singh ] Mr. Bhagat Dadhich] for the appellants. Mr. KC Sharma ] Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) REPORTABLE By judgment impugned dated 16.10.2003 learned Additional Sessions Judge (Fast Track), Sriganganagar convicted accused Surendra Kumar @ Geji for commission of offences punishable under Sections 302 and 201 Indian Penal Code. The other accused Chhindrapal @ Kala was convicted for an offence punishable under Section 302 read with Section 34 and 2 Section 201 IPC. Both the accused persons were sentenced to undergo life imprisonment with a fine of Rs.500/- each and further to undergo one year's more simple imprisonment in event of default to pay the fine. Both the accused persons were also sentenced for commission of the offence punishable under Section 201 IPC by rigorous imprisonment for seven years with a fine of Rs.100/- and further to undergo one month's simple imprisonment in event of default to pay the fine. The third accused Kewal Krishna son of Kaurchand Arora being absconding, his case was sent for inquiry and examination as per provisions of Section 299(2) Cr.P.C. to the court of Judicial Magistrate (First Class), Sadulsahar. As per prosecution, on 27.7.2002 at about 01:30 PM PW-1 Narayandas submitted a written report at police station Sadulsahar with assertion that his daughter Neetu Bala married to Surendra Kumar @ Geji son of Kaurchand about five years earlier. Since one or two years after the marriage, Surendra Kumar and his brothers Kewal Kumar, Dharampal, Kala, Jinder Kumar and Jinder Kumar's wife were mentally torturing Neetu for demand of dowry. Neetu kept silence for all the affairs going on for some time, but ultimately about a year back when Surendra's brother hold her hand and tried to indulge with some unwarranted activity and being pushed on refusal to do so and also for the reason that Surendra was passing much time 3 with his elder sister-in-law, it became unbearable for her to stay at husband's place, thus, she came to her parents house at Sriganganagar and was staying with them. On 14.7.2002 Neetu went with Surendra for Sadulsahar on the assurance given that he will reside separate to his brothers. On 27.7.2002 at about 08:00 AM a telephone call was received at a neighbour's house of the complainant, to whom Surendra informed that Neetu received an electric current but nothing was there to worry. At about ten minutes subsequent thereto an another call was made by Surendra informing the neighbour aforesaid about death of Neetu. Narayandas, his other family members and some relatives then immediately rushed to Sadulsahar but on getting no proper information about Neetu, they approached to the Station House Officer of Police Station Sadulsahar, who then came to the place where Neetu and Surendra were residing on rent. The house was locked, thus, the door was opened after breaking the lock and on entering into the house dead body of Neetu was found lying in a metallic box. In the same box bodies of two minor children of Neetu “Kritika” aged two years nine months and “Mahir” aged ten months were also found just under the body of Neetu. On making search the investigating agency recovered a blood stained half part of a scissors, blood stained mattress and a blood stained pillow from the metallic box. On 11.8.2002 the accused appellants were arrested at Saharanpur District Haridwar. 4 On completion of investigation a charge sheet was filed alleging commission of offences by the accused appellants punishable under Sections 498-A, 302, 201 read with 34 IPC. The case was committed to the court of Sessions, charges of the offences punishable under Sections 498-A, 302, 201 and 304-B IPC were framed and and on denial of those, trial was conducted. As already said earlier, the third accused Kewal Krishna was absconding, therefore, his case was sent for inquiry and examination to the court of Judicial Magistrate (First Class), Sadulsahar as per provisions of Section 299 Cr.P.C. The prosecution supported its case with the aid of 25 witnesses and number of documents exhibited as Ex.P/1 to Ex.P/52A. The accused persons were put forth for examination as per provisions of Section 313 Cr.P.C. wherein they denied all the allegations and tendered explanation that they went to Uttar Pradesh in search of employment leaving Neetu and her two children behind at Sadulsahar. Two other brothers were also staying at home but they committed suicide subsequent thereto. Accused Surendra Kumar also stated that no phone call was made by him to any of the neighbour of Narayandas on 27.7.2002. Two issues were settled by the trial court for determination in following terms:- 5 (1)whether the accused persons at any time before 27.7.2002 and after marriage of Smt. Neetu Bala wife of Surendra Kumar tortured her physically and mentally for demand of dowry and for that reason murdered her? (2)whether the accused persons murdered Neetu Bala and her two children Kritika and Mahir by causing injury with a sharp edged weapon “Scissors” and also hidden the dead bodies causing disappearance of evidence? The first point was not found established against the accused appellants, therefore, they were acquitted from the charges punishable under Section 498-A IPC, however, the point No.2 was found proved and for that they were convicted. Shri Mridul Jain, counsel for the appellants while challenging the conviction recorded urged that adequate evidence is not available to establish guilt of the appellants beyond shadow of doubt and, thus, the conviction recorded under the judgment impugned deserves to be set aside. On the other hand, learned Public Prosecutor with all vehemence submitted that instant one is a case relating to serious and hineous crime and that requires exemplary sentence as given by the trial court. Learned Public Prosecutor also submitted that 6 the learned trial court has taken into consideration all existing circumstances with cogent evidence to held the appellants guilty. We have considered the arguments advanced. The entire case of the prosecution is based on circumstances existing and, therefore, whatever evidence available requires examination minutely and appreciations meticulously with acceptance of the established principle that each and every circumstance on which prosecution relies must be and firmly established with cogent evidence, to the extent that such circumstances taken together should form a chain pointing towards only one conclusion, i.e. guilty of the accused. The cumulative effect of all the circumstances taken into consideration must lead to no other inference than the guilty of the accused persons. If any little doubt exists, then that is required to be treated as breakage in the chain of events warranting extension of benefit of doubt to the accused persons. In the case in hand the trial court while establishing guilt of the accused persons relied upon the following circumstances:- --On 14.7.2002 Neetu went to stay with her husband at Sadulsahar, where her other brothers-in-law were also residing; 7 --On 27.7.2002 accused Surendra informed to a neighbour of complainant Narayandas regarding death of Neetu; --From the residence of Surendra Kumar dead bodies of Neetu, Kritika and Mahir were found from a metallic box wherefrom a blood stained sharp part of scissors was also recovered. The other half of scissors was recovered at the instance of disclosure made by accused Surendra; --At the instance of accused Surendra and accused Chhindrapal @ Kala their blood stained pantaloons and shirts too were recovered and blood stains available on pant and shirts matched with blood group available on the clothes of Kritika and Mahir; and --No ornament or other article was missing from the house to apprehend or draw inference that the incident occurred due to some effort made by some other person for the purpose of theft or loot or otherwise. The circumstances summarised above were found proved by the trial court on basis of the evidence available and that requires further pondering and appreciation by this Court. PW-4 Dr. Indra Prakash Punia was head of the medical board that conducted autopsy on the dead 8 bodies of Neetu, Kritika and Mahir on 27.7.2002 itself, thus, he proved the postmortem report given. As per Ex.P/15 (postmortem report of Smt. Neetu) the cause of death of Neetu was shock due to excessive bleeding from injured major vessels. The cause of death given in Ex,.P/16 and Ex.P/17 (postmortem reports of Kritika and Mahir respectively) was also shock due to excessive bleeding from major injured vessels of neck. Ex.P/39 is the Forensic Science Laboratory report, as per that on serological examination the blood stains on recovered articles those are, part of scissors, quilt, mattresses, pillow, bed sheet, salwar of Neetu, Jamfar of Neetu, bra of Neetu, rope, frock of Kritika, underwear of Kritika, chola of Mahir, pants, bushirts, were having blood stains of human origin. The underwear of Kritika and chola of Mahir were found to be stained with “B” group of blood and that matched with blood stains available on pants recovered at the instance of accused Surendra and Chhindrapal. Ex.P/22 is recovery memo relating to recovery of blood stained pant recovered at the instance of accused Chhindrapal. The recovery aforesaid was made in presence of PW-10 Jitendra Kumar son of Munshiram and PW-11 Amarlal son of Shyamlal. Ex.P/23 is a recovery memo relating to recovery of a cotton bed sheet at the instance of accused Chhindrapal @ Kala and this recovery too was made in 9 presence of PW-10 Jitendra Kumar and PW-11 Amarlal. Ex.P/20 is the recovery memo relating to recovery of half part of blood stained scissors recovered at the instance of accused Surendra Kumar. This recovery was also made in presence of PW-10 Jitendra Kumar and PW- 11 Amarlal. A blood stained pant was recovered at the instance of accused Surendra Kumar, recovery memo relating to which is Ex.P/21 and this recovery was also made in presence of PW-10 Jitendra Kumar and PW- 11 Amarlal. All the recoveries referred above were made on 15.8.2002 i.e. on 19th day from the date of incidence and fourth day after the arrest of the appellants at Saharanpur. The recovery memos were proved by Investigating Officer PW-22 Om Prakash, however, motbirs PW-10 Jitendra Kumar and PW-11 Amarlal were declared hostile as they stated on oath that no recovery in their presence was made by the police and the signatures were obtained on blank papers. PW-12 Tarsemram is an Assistant Sub Inspector at police station Sadulsahar who arrested accused persons at Saharanpur on 11.8.2002. As per him, he proceeded for Saharanpur on 6.8.2001 alongwith two police personnels Janardan and Dharmendra. He also stated that he did not report to police station Saharanpur on his arrival there and no aid from Saharanpur police was obtained. He also stated that while arresting the accused persons he did not choose 10 to avail any witness looking to the fact that he was arresting the accused persons in an other State. PW-25 Sanjeev Nain who was working as Circle Officer (City) Sriganganagar, stated that on 27.7.2002 on reaching at the place of occurrence he recovered one part of blood stained scissors, wearings of Neetu, Kritika and Mahir and also mattress, pillow and quilt. PW-22 Om Prakash, the Investigating Officer narrated all details relating to steps taken during investigation including recoveries made on 15.8.2002. As per this witness, the investigation was assigned to him on 12.8.2002 and on the same day the accused persons were taken to police station after getting remand. He further stated that the recovery was made by him on basis of disclosure statement of the accused persons and for that purpose he opened lock of the premises after getting key from PW-10 Jitendra Kumar. He also stated that blood stained part of scissors was recovered from top of a wooden Almira. PW-1 Shri Narayandas is father of deceased Neetu, who stated that on 14.7.2002 Surendra came to his house at Ganganagar and stated that he will take adequate care of his wife and children and will reside separately. As per this witness, on 27.7.2002 at about 08:00 AM Surendra made a telephonic call to one Rajkumar, a neighbour and informed about receiving of 11 electric current by Neetu. Subsequent thereto, Surendra further made a telephonic call and informed about death of Neetu. On receiving this information, this witness alongwith his wife Prakash Rani, daughter Pooja, son Manish, Deepak and a relative Prahlad, went to Sadulsahar by a jeep driven by one Rajkumar. On reaching to Sadulsahar they found the house of Neetu locked and on making inquiry no adequate information was given to them by the neighbours, thus, they approached to the police station Sadulsahar. The police personnels accompanied them and in presence of Pappu, the landlord, the lock was broken. On entering into the house bad odour was coming from a box and that box was locked. On breaking the lock this witness found dead body of his daughter lying therein. The dead bodies of two children were also lying below the dead body of Neetu. He also stated that at the house concerned Surendra, Neetu and unmarried brothers of Surendra were residing and two out of the four brothers subsequent to the incident in question committed suicide. PW-2 Smt. Prakash Rani is the wife of PW-1 Narayandas and mother of deceased Neetu. In general she also narrated the facts as stated by PW-1 Narayandas. The only important fact stated by her is that after recovery of dead bodies and after making search of entire house, the house was sealed by the police. 12 PW-3 Manish Kumar, brother of Neetu and son of PW-1 Narayandas and PW-2 Prakash Rani, also in general narrated the facts quite similar to those as stated by PW-1 and PW-2. PW-5 Smt. Asha Khurana stated that on 27.7.2002 she also accompanied Narayandas and Prakash Rani after receiving information about death of Neetu. Beside the general factual position as stated by other witnesses PW-1, PW-2 and PW-3, this witness also stated that an intense search of rooms were made by police and at that time clothes including bed sheet were lying on the bed. As per this witness, after completing all proceedings relating to recovery the police sealed the house and carried key with it. PW-6 Rajkumar Arora stated that on 27.7.2002 he received a telephonic call from Surendra Kumar with information that Neetu has died because of receiving of electric current. During cross examination he also stated that phone number 440154 is in his name and that is having no I.D. Caller. As per him, the phone caller was Surendra, as the person making call told him that he is Surendra Kumar from Sadulsahar. PW-14 Kanwar Bhan stated that he is residing just adjacent to the house of Ashok Kumar Gumbar who rented out one part of his house about 3-4 years earlier where Surendra Kumar was residing. As per this 13 witness, he heard about the fact that Surendra Kumar was residing there with his wife and one other girl. During cross examination he stated that he do not know any Jitendra @ Pappu. From the evidence available and as per the explanation given by the accused persons, the admitted position emerges out is that on 14.7.2002 Neetu alongwith her children came to Sadulsahar to stay with her husband accused Surendra Kumar and they stayed at Sadulsahar with accused persons and their other brothers. On 27.7.2002 PW-1 Shri Narayandas alongwith his other family members and relatives came to Sadulsahar, after receiving an information from his neighbour Rajkumar regarding death of Neetu. He informed the police and after receiving information from him, dead bodies of Smt. Neetu and two children Kritika and Mahir were found from a house at Sadulsahar. At the time of recovery of dead bodies half part of a sharp weapon scissors alongwith certain other articles too were recovered from the metallic box wherein the dead bodies were lying. Except the admitted position above, all other facts requires probe for their definite determination on basis of the evidence available. The subsequent events on basis of which the accused appellants are held guilty relates to the recovery made on 15.8.2002 from the house where dead bodies of Smt. Neetu, Kritika and Mahir were found. 14 As per PW-22 Shri Om Prakash, the Investigating Officer, recovery of half part of scissors, pantaloons and shirts was made on basis of the disclosure statement and at the time of recovery PW-10 Jitendra and PW-11 Amarlal were present as motbirs. This witness also stated that the house wherefrom recovery was made was opened after getting key from PW-10 Jitendra Kumar. Pertinent to note that PW-10 Jitendra Kumar and PW-11 Amarlal both were declared hostile in view of the fact that they stated that no recovery of any article was made in their presence on 15.8.2002 and the police obtained their signatures on blank papers. It is also important to note PW-2 Smt. Prakash Rani as well as PW-5 Smt. Asha Khurana stated that after making recovery of dead bodies and other articles on 27.7.2002 police sealed the house. PW-5 Smt. Asha Khurana beside the above also stated that after completing all proceedings relating to recovery police carried key with it after sealing the premises. In such circumstances, an important question remain answered - as to how on 14.8.2002 key of the house was with Jitendra Kumar, which was taken by PW-22 Shri Om Prakash to unlock the premises in question. It is also worthwhile to note here that PW-10 Jitendra Kumar though was declared hostile, in cross examination stated that after recovery of dead bodies the house 15 was locked and police carried key with it. No evidence is available on record to determine as to how on 15.8.2002 Jitendra Kumar was having key with him. PW-22 Om Prakash, the Investigating Officer, also not made it clear that once getting the house sealed, how the key was given to Jitendra Kumar. This fact acquires more importance in view of the fact that recovery of half part of weapon and other blood stained clothes was made on 19th day from the date of occurrence and on fourth day after arrest of the accused persons and if the prosecution story is accepted then during this period the house was either open or under possession of Jitendra Kumar. Hon'ble Supreme Court in Mani v. State of Tamilnadu, 2008 Cr.L.R. (SC) 306, held that discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in a serious matter cannot be based upon discovery. In the present case recovery of articles on 15.8.2002 is the most vital link to complete the prosecution chain of events and if that fails because of lurking doubt, then benefit of doubt is to be extended in favour of the accused persons. It is also to be kept in mind that two brothers of the accused persons, who committed suicide were at the house and one brother is still absconding, as such possibility of committing crime by them or by anyone among them or by any third person cannot be ruled out. 16 The recovery of scissors and blood stained clothes too is doubtful and as such that cannot be a reliable piece of evidence to hold the accused persons guilty. Beside the fact that PW-10 Jitendra Kumar and PW-11 Amarlal did not support the prosecution case and there is no explanation as to how PW-22 Om Prakash, the Investigating Officer, unlocked the house after taking key from PW-10 Jitendra, it is also required to be taken into consideration that as per PW-2 Prakash Rani and PW-5 Smt. Asha Khurana on 27.7.2002 itself, a thorough search of house which is having only two rooms as per “naksha mauka”, available on record, was made but on that day police failed to recover the articles those were subsequently recovered on 15.8.2002. On minute examination of entire evidence we are of the considered opinion that the recovery of half part of blood stained scissors and pantaloons and shirts on 15.8.2002 is highly doubtful. No evidence is also available on record even to prove that pantaloons and shirts recovered on 15.8.2002 are of the accused persons. The probability of killing Smt. Neetu, Kritika and Mahir by other persons than the present appellants cannot be denied. As already stated earlier, a conviction on basis of circumstantial evidence can be based only on availability of cogent evidence to the extent that such circumstances taken together should form a chain pointing towards the only one conclusion, but unfortunately in the instant case where three persons have lost their lives, the 17 cumulative effect of all the circumstances taken into consideration by the trial court are not leading to one conclusion. The inference relating to guilty of other persons or probability of commission of crime by other person in the present set of circumstances cannot be denied. So far as conviction under Section 201 IPC is concerned, suffice it to mention that there is no evidence available on record to establish that the accused persons were present at the spot at the time of crime or subsequently to disappear the evidence of a crime. As such, the conviction for the offence aforesaid too is not sustainable. Thus, we are left with no option but to acquit the accused appellants from the charges for which they have been convicted by the trial court. Accordingly, this appeal is allowed. The judgment dated 16.10.2003 passed by learned Additional Sessions Judge (Fast Track) in Sessions Case No.79/2002 is set aside. Accused appellant Surendra Kumar is acquitted from the charge punishable under Section 302 IPC and also from the charge punishable under Section 201 IPC. Accused Chhindrapal @ Kala is also acquitted from the charge punishable under Section 302/34 IPC and also the charge under Section 201 IPC. Accused Surendra Kumar is required to be 18 released from custody forthwith, if not required in any other case. Accused Chhindrapal @ Kala is already availing suspension of sentence in pursuant to the order dated 24.9.2004, passed by this Court, thus, the bail bonds and surety furnished by him in pursuant to the order dated 24.9.2004 stands discharged. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.