1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT JAI CHAND NAT vs. STATE OF RAJASTHAN. D.B. Criminal Appeal No.1097/2006 under section 374 (2) Cr.P.C. against the judgment and order dated 04.12.2006 passed by the Additional District & Sessions Judge, (Fast Track) No.3, Udaipur , Camp- Salumber in Sessions Case No.58/2006. Date of Judgment: 20 August , 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Shambhoo Singh, for the appellant. Mr. K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This appeal is preferred to challenge the judgment dated 04.12.2006, passed by the learned Additional District & Sessions Judge, (Fast Track) No.3, Udaipur , Camp- Salumber , convicting the accused appellant, Jai Chand Nat, for the offence punishable under section 302 IPC in Sessions Case No. 58/2006. 2 The learned trial court, on the basis of the aforesaid conviction , sentenced the accused appellant, to undergo life imprisonment and pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months' simple imprisonment . Briefly stated, the facts of the case are that on 29.06.08 at 12.50 PM, one Tulsi Ram gave an oral information at the place of incident, alleging that his son Naru who had gone in the morning of 28.06.06 at around 08.30AM, from his house had not returned till the evening. On enquiry, it was found that Naru had gone with Daya Lal in the evening at around 7.30PM from the house of Daya Lal. They had started from Bassi Buchhara. On the next day, i.e. on the date of handing over of the first information report, the dead body of Naru had been found lying in the chowk of the house of Chamanlal Meghwal and, therefore, Chamanlal Meghwal, along with Daya Lal had come to Bassi. He further stated in the report that his son had been murdered by Jai Chand Nat by stone. There had been a rivalry between Jaichand and the deceased, and for that reason, Jai Chand had taken Naru to Gud and murdered him with a stone. It was further stated in the report that the incident had been witnessed by Chamna and his wife Gulab from their house. On the basis of the above report, a criminal case No.199/06 was registered under section 302 IPC at Police 3 Station, Salumber and the investigation commenced. During the course of investigation, statement of the witnesses were recorded. The accused appellant Jai Chand Nat was arrested, photographs of the place of occurrence were snapped, blood stained clothes of the deceased, as well as those of the accused, were taken into possession, and after usual investigation, a charge sheet for the commission of offence was filed under section 302 IPC, in the court of Addl.Chief Judicial Magistrate, Salumber, from where the case was transferred to the court of learned District & Sessions Judge , Udaipur and ultimately , transferred to the court of learned District & Sessions Judge, (Fast Track) No.3, Udaipur , Camp- Salumber. The accused was charged for the commission of offence under section 302 IPC, to which he did not plead guilty and claimed to be tried. The prosecution examined as many as 15 witnesses , namely, PW/1 Takhat Singh, PW/2 Shankar, PW/3 Limba Ram , PW/4 Pratap Singh, PW/5, Daya Ram, PW/6 Tulsi Ram, PW/7 Chamna, PW/8 Smt.Gulab, PW/9 Shambhu Singh, PW/10 Smt.Mani, PW/11 Dr.B.L.Verma, PW/12 Ramesh Kumar, PW/13 Manna Lal, PW/14 Devi Lal, and PW/15 Radmal Singh. The incriminating evidence adduced during the course of 4 trial was put to the accused for explanation, which the accused stated to be false. He, further stated that he had been falsely implicated in the case and that he was innocent. The accused appellant Jai Chand Nat examined 2 witnesses , in his defence ,one being DW/1 Narain Singh and the other DW/2 Manohar Singh .After the conclusion of trial , vide judgment dated 04.12.2006, the accused appellant was held guilty for commission of offence and sentenced as stated above. PW/11, Dr.B.L.Verma, conducted the autopsy of the body of the deceased Naru and prepared the post mortem report, Ex.P/12. As per opinion of PW/11 Dr.B.L.Verma, the cause of death of Naru was coma, due to head injury and shock due to excessive hemorrhage from the wounds. The following external five injuries were found on the body of the deceased :- 1. Lacerated wound- 4cm x3 cm x bone deep Rt. Supr orbit forehead region. 2. Lacerated wound- 2cm x0.5cm x 1/1/2 cm on the middle of Rt. Mandible 3. Abrasion – 5 cm x 1.5 cm on the Rt. Side of neck 4. Bruise 6cm x 4 cm. Ant. of neck 5. Bruise Rt. Face Rt. Forehead, near upper 1/3rd of Rt. chest 5 On internal examination , the following internal injuries were found on the body of Naru :- (1)# Rt. Middle of mandible (2) # Rt. Lower mandible (3) # Rt.Orbit Bone (4) # Rt. zygomatic bone (5) #Rt. Frontal bone (6) # upper Rt. 1 ½ incisor teeth and canine teeth (7) # lower 1 ½ central incisor teeth and canine also. Thus, as per the opinion of PW/11 Dr.B.L.Verma, the death of Naru was homicidal and homicidal death had been proved beyond a shadow of doubt. Further, the prosecution produced two sets of evidence,- the first set of evidence was that of circumstantial evidence of the fact that the deceased Naru was last seen alive, along with the accused appellant Jai Chand Nat, when both of them had started for Gud in the evening, at around 07.30 PM. For this purpose , the prosecution examined PW/5 Daya Ram, who deposed that two months previous to recording of his statement in the court, deceased Naru and the accused appellant Jai Chand Nat had come to his house. Naru was his brother in law (loser). Both of them had visited Jai Chand at his house. He had asked both of them to stay at his residence for 6 the night. On the next day morning , he came to know that Naru had died . Therefore, he went to the place of incident and identified the body of Naru. Thus, this was the statement of Daya Ram who deposed that deceased Naru was last seen together with accused appellant Jai Chand Nat. The second set of evidence against the accused appellant, which was produced by the prosecution was of PW/7 Chamna and PW/8 Gulab . Both of these witnesses deposed that on the fateful night , at mid-night, they both were sleeping in their house, when they heard a sound of stoning and they also heard the sound of two persons , out of which one was crying saying not to beat him. PW/7 Chamna deposed that after hearing that voice ,he opened the window and from the window he saw one person standing there and he was Jai Chand Nat. After sometime of hearing such a noise 'don't beat' , 'don't beat', there was silence. He further deposed that in his village there was a house of Shankar Nat . In the night, he along with his wife, slept because they were frightened and in the morning when they came out of their house they saw that a dead body was lying near the door of their kitchen. The body was blood stained, the door was also stained with blood . There were stones, which were also blood stained and the clothes of the dead body were also blood stained . Later on, it was found that the deceased was also a 7 Nat. PW/15, Ridmal Singh was examined by the prosecution as the investigating officer, who reached the place of occurrence on 29.06.06 on telephonic information and received oral information Ex.P/10 at the place of occurrence , which was sent to the police Station with Shankar Lal, Constable, on which a criminal case No.199/2006 was registered at Police Station , Salumber. He inspected the site and prepared the site inspection memo as Ex. P/1, Fard Panchnama Ex.P/2. He also took into possession the blood stained clothes of the deceased as well as the blood stained two stones , they were of 15kgs. and 25 kgs. of weight. The accused appellant Jai Chand Nat was arrested and at the instance of accused appellant. the place of the incident was identified and the and the site inspection memo was prepared as Ex.P/26. The blood stained clothes of the accused were also took into possession. The main contention of the learned counsel for the accused appellant is that the circumstantial evidence adduced by the prosecution could not be relied upon and the conduct of the two eye witnesses PW/7 Chamna and PW/8 Gulab produced by the prosecution was not as per the normal human conduct and behaviour. Both of them deposed that they saw two persons quarreling and one of them thrashing the other, 8 accompanied with loud cries and yet they did not try to come out of their house and stop the quarrel. That was not in accordance with the normal human behaviour or conduct. The next contention of the learned counsel for the accused appellant is that the circumstantial evidence, as produced by the prosecution could not be relied on for the reason that it was not as per normal human conduct to cause the death of a person at the residence of any other person. There was every possibility that if the accused appellant was the only responsible person for the cause of the death of the deceased, he could have chosen some other place for committing the crime. The residential place of Chamna and Gulab was not so safe a place for the accused appellant, to commit the crime. Thus, the complete circumstantial evidence as adduced by by the prosecution, could not be relied upon. Per contra, the learned public prosecutor defended the judgment of the learned trial court. We have considered the rival contentions of the learned counsel for both the parties and scanned and evaluated the evidence available on record. According to the prosecution, the case rests on circumstantial evidence and the circumstances relied on by the 9 prosecution are ,- (1) last seen together, (2) motive, (3) statement of eye witnesses PW/7 Chamna and PW/8 Gulab and, (4) Forensic Science report Ex.P/29. As per the Forensic Science report, the blood stained clothes of the deceased, as well as those of the accused appellant, Jai Chand Nat , plus the stones, all were found to be stained with 'A' blood Group. We think it proper to consider the case circumstance- wise. First of all, we propose to take the evidence of both the eye witnesses , PW/7 Chamna and PW/8 Gulab. Both these witnesses deposed that at mid-night, they heard the loud cries of a person and saw that one person was beating the other in a nearby house. Due to fear, they did not come out of their house and after sometime when the cries stopped , they went to sleep and in the morning they found a dead body lying outside their house. The body was blood stained and there were two stones lying near the dead body, which were also blood stained. 10 We think that the statement of these two witnesses, does not inspire faith and confidence, for the reason that their statements are against the natural human conduct. Had there been any such loud cry from outside their residence, just near the door, they would have come out of their house and definitely tried to rescue the victim. There was no reason to sleep after the incident was over, because even after the incident,they could have come out of the house and seen the other circumstances outside their house. As per site inspection memo Ex.P/1 , the dead body was lying just near the door of the kitchen of PW/7 Chamna and PW/8 Gulab. Their statements could not be relied upon. The next evidence available against the accused was that of the last seen by PW/5 Daya Ram. We have perused the statement of PW/5 Daya Ram. As per the statement, Jai chand Nat and Naru started from his residence in the evening , he tried to stop both of them to stay for the night at his residence , but they refused. The evidence of this witness also does not inspire confidence for the reason that the dead body of the deceased Naru was found in the house of PW/7 Chamna and PW/8 Gulab. Had there been any intention on the part of the accused appellant Jai Chand to cause the death of the deceased Naru, he would have chosen some other place for this crime, as it was very unsafe for him to commit 11 the crime in the residence of another person, that too near the door of their kitchen. As per natural human conduct and behaviour , a person always chooses to commit a crime in a lonely place. Instead of that the accused chose the residence of another person. This fact , in itself, does not inspire faith and confidence regarding the evidence of the last seen. So far as the motive is concerned, as per the prosecution story, Some of the witnesses deposed that Naru had a suspicion that his wife would be given in Natha by accused appellant Jai Chand. However, there is no specific evidence or allegation regarding such a motive. Now, if we come to the appreciation of the report, Ex.P/29, it is well established that the stones which were blood stained, were of about 25kgs. and 15 kgs. each in weight and it was not possible for one person to raise such a heavy stone in his hand and then throw it upon a person. More over, these stones were not recovered at the instance of the accused appellant, but they were found at the place of the incidence. So far as the finding of blood stains on the clothes of the deceased, as well as the accused appellant is concerned, the observation of the Hon'ble Supreme Court in Shanker Lal vs. State of Maharashtra [AIR 1981 SC, 765] may also be gainfully referred. The prosecution had not collected the sample of blood of the accused to eliminate the possibility about the 12 blood found on the clothes, to be that of the accused. Thus, in the totality of circumstances, this particular circumstance does not stand as an incriminating circumstance against the accused. In our view, when all these material circumstances, which the learned trial court relied upon are not either established or constituted, 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 the above parameters , it did not at all form any chain whatever, much less conclusively establish the guilt of the accused, so also negating 13 the innocence of the accused on all reasonable hypothesis. In view of the aforementioned discussions, the set of the eye witnesses produced by the prosecution against the accused appellant, could not be relied upon and the other circumstantial evidence produced against the accused appellant does not inspire confidence and faith. Therefore, the net result of the aforesaid discussion is that the judgment of conviction and the order of sentence as recorded by the learned trial court dated 04.12.2006 cannot be sustained. Resultantly, the appeal is allowed, the impugned judgment and order dated 04.12.2006, passed by the Additional District & Sessions Judge, (Fast Track) No.3, Udaipur , Camp- Salumber, is set aside and the accused appellant Jai Chand Nat, s/o Ratan Lal Nat, is acquitted of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george