IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T RAJUDAS V/S The State of Rajasthan & ANR. CRIMINAL APPEAL No.63 of 2002 Date of Judgment : 9th Feb.2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARY,J. Mr. JP CHHANGANI, for the appellant. Mr. ASHOK UPADHYAY, P.P. BY THE COURT (Per N.P. Gupta): This appeal was filed by the three appellants Raju Das, Devilal and Khayali Lal against the judgment of the learned Addl. Sessions Judge (F.T.) Rajsamand dt. 4.10.2001, convicting all the three appellants for the offences under Sections 302/34, 201/34, and 397 IPC, and sentencing each of them, for offence under Section 302/34 with imprisonment for life along with a fine of Rs. 10,000/-, for offence under Section 201/34 with imprisonment for seven years and a fine of Rs. 5000/-, and for offence under Section 397 with seven years rigorous imprisonment, in default of payment of fine each of the accused was directed to suffer further simple imprisonment for a period of two years. The appeal was filed on 3.12.2001, and was admitted on 25.1.2002. However, when the matter came up for hearing, on 12.7.2006, it was submitted by the learned counsel for the appellant, that appellant no.3 Khayali Lal has died in jail, therefore, report was ordered to be obtained from jail, then on 9.1.2007 it was noticed that the jail has reported that Khayali Lal has not died, and is serving the sentence. In such circumstances, counsel was directed to file appropriate affidavit, as to how, and on what basis, the statement was made with regard to death of Khayali Lal. Then, on 26.3.2007 it was noticed that affidavit has been filed, thereafter when the matter came up on 10.4.2007, it was noticed that Mr. J.P. Chhangani advocate has filed affidavit, from which it appeared, that inadvertently, on the basis of the letter received from one of the accused, the statement was made about death of Khayali Lal, whereas the fact of the matter is, that Devilal, who was undergoing sentence, has expired, therefore, again report was obtained from jail, and on 18.7.2007 it was noticed, that a confirmative letter has been received from the jail authorities about death of appellant Devilal. As such the appeal of Devilal was ordered to have become infructuous. This is how the present appeal remains, 2 now appeal on behalf of two accused persons Raju Das and Khayali Lal. ` The facts of the case are, that on 21.2.2001 at about 10.15 A.M., one Bahadur Singh s/o Shiv Singh Chouhan r/o Rasi Talai made a telephonic call at P.S. Charbhuja, to the effect, that on the road from Antaliya to Rasi Talai, in the Naal of Padoliya, towards the west of the road, near the Dhuni, blood is lying at one place, some coins are also lying, and near a well Rexene Chappal, and blood is available on the stones of parapet wall of well, from which it appears, that somebody is killed. On this telephonic message, the S.H.O. along with one head constable, after making necessary Rapat (Ex.P-12) proceeded on the spot, inspected the site, and found, that on the given place there is a way leading to Dhuni, towards west of the road, on which way there were tyre marks of coming and going of jeep, and near Dhuni, under a Banyan tree, on the stones of parapet wall, blood was found there, in the movement area of Charas sleepers were lying, and on the ground near the tree of Oomar there was pool of blood, and on the stones nearby, bloodstains were there, coins of Chillers, and broken buttons of bush-shirt were lying, and surface of the land was found disturbed. This aroused suspicion, thereupon a hook (Bilai) was sent in the well, to make 3 a search, whereupon a dead body of unknown man aged 25-26 years was found. It was nude body, hands were tied with the shirt, legs were tied with the pant, and T-shirt was also tied on the body. The body was taken out from the well, and it was found, that in the right side below the jaw, there was a big sharp edged weapon injury, and on the left side in the neck also there were sharp edged weapon injury, and dragging marks were there on the back, which showed that some unknown men had brought the unknown deceased in a jeep, at the place of incident, where he was killed, and had been thrown away, which revealed the offence under Section 302 and 201 IPC, for which necessary Parcha was sent at the police station, and at 2-3 P.M. FIR No. Ex.P-13 was registered. The investigation was further continued, three accused persons were arrested, and consequent upon their information, and at their instance, recoveries were made of the jeep, weapon of offence, the papers of the jeep, and valuables belonging to the deceased. Evidence also came forward about the accused and the deceased having been last seen together in the jeep on 20.2.2001. The maroon sweater, which was being worn by Raju Das, at the time of incident, was found blood stained, Raju Das was having swelling on account of the injuries, having been sustained by him in the 4 incident. The blood stained shirt of the accused Devilal was also seized, and photograph of the dead body were taken. After completing investigation challan was filed against the three accused persons for the offence under Section 302, 201 and 397/34 IPC. Learned trial court framed charges for the offence under Section 302, and in the alternative Section 302 read with 34, 201/34 and 397 IPC. Prosecution examined some 19 witnesses, and tendered in evidence 59 documents. The accused in their statement under Section 313 adopted stand of denial, and examined D.W.1 Udai Singh and D.W.2 Mamta in defence, and also tendered in evidence police statement of Girwar Singh being Ex.D-1. After completing the trial, learned trial court convicted and sentenced the accused as above. As noticed above, since out of three persons Devilal has already expired, therefore, we need not discuss the evidence, material, and findings of the learned trial court, so far as they relate to Devilal. The case obviously rests on circumstantial 5 evidence as there is no eye witness. The circumstances projected by the prosecution are; (1) The evidence of P.W. 14 Mangilal and P.W. 15 Devilal about the accused and deceased having been last seen together in the evening of 20.2.2001. (2) Then, against the accused Khayali Lal circumstance relied upon is, recovery of jeep, which is said to have been robed away. (3) Against the accused Raju Das, apart from the circumstance of last seen, other circumstances projected by the prosecution and relied upon are:- (a) Recovery of silver chain belonging to the deceased, consequent upon the information given by the accused under Section 27. (b) Recovery of the papers of the jeep, and Rexene bag wherein those papers were contained. Papers included registration certificate, insurance, fitness certificate, permit etc. This recovery was made pursuant to the information made by the accused under Section 27. (c) The bag containing the papers and the silver chain 6 were put up for test identification parade, which was conducted by P.W. 19 Rajendra Saraswat, Tehsildar, and were correctly identified. (d) Recovery of sweater, that was being worn by the accused Raju Das, at the time of incident, which was found to be blood stained with human blood of ‘A’ Group by the Forensic Science Laboratory, which was the blood group found on the weapon of offence, swabs collected from the stones, and blood stained earth. (e) At the time of arrest, the accused was having swelling on the hand, consequent upon the injuries received during the course of incident, which fact is mentioned in the arrest memo Ex.P-17. (f) Recovery of bus journey tickets, found in the possession of accused Raju Das, numbering three, being Ex.P-20, which were for journey Himmatnagar to Nathdwara, Kelva to Kankroli, and Kankroli to Kelva, which is a place in the vicinity of place of incident. The learned trial court found all these circumstances proved against both the accused persons, and found that these circumstances do not lead to any other conclusion, except that two accused persons, along with Devilal, were guilty, and convicted and 7 sentenced them as above. Assailing the impugned judgment, learned counsel contended that the evidence of last seen, comprising of P.W. 14 Mangilal and P.W. 15 Devilal is wholly unreliable, P.W. 14 Mangilal is a child witness, the occurrence being of 20.2.2001, being cold weather, it cannot be believed, that at that time Mangilal, P.W. 14 would be playing on the road, to have a hanging ride on the rear side of the jeep. It was also submitted, that a comprehensive reading of the statement of Mangilal shows, that he states to have seen Khayali Lal coming from towards Talab. Then, he has changed the version, by deposing that all the four persons were together in the jeep. This clearly shows, that Khayali Lal was not there. In this sequence it was also submitted, that occurrence is of night intervening 20 and 21, the dead body was recovered on 21st, in the noon. Thereafter F.I.R. Ex.P- 13 was registered, photographs of the dead body had already been taken, and P.W. 15 Devilal had seen the dead body also on the spot, still the police statement of these two witnesses have been recorded on 25.2.2001 only, which also casts a serious doubt in the reliability, about the accused having been last seen together with the deceased. 8 Then, regarding recovery of jeep it is contended, that the jeep has been recovered from a garage, where it was found lying outside the garage, on the road, as fuel of the jeep had finished, as such it is a recovery from open place, which cannot be attributed to accused Khayali Lal, thus conviction of Khayali Lal is bad. Then, regarding circumstances found against the accused Raju Das, it was submitted, that theory of recovery of Rexene bag containing papers of the jeep and chain, is wholly unreliable, apart from the fact, that the house, from which they are said to have been recovered, is occupied by many persons, other than the accused Raju Das also, thus exclusive possession cannot be attributed to Raju Das. Then, regarding sweater it was submitted, that in the arrest memo of accused Raju Das being Ex.P-17, it is not mentioned that he was wearing the sweater, much less that it was stained with blood, and in the arrest memo it is also not mentioned, that sweater was taken into possession. Thus, the story of the accused wearing sweater, it being stained with blood, and having been seized from the accused, is all myth. Learned Public Prosecutor, on the other hand, supported the impugned judgment. 9 We have considered the submissions, and have gone through the record. First of all, we take up the circumstance, of accused persons having been last seen in the company of the deceased. The evidence in this regard comprised of the statement of P.W. 14 Mangilal and P.W. 15 Devilal. Mangilal is not a child witness, as he is aged 14 years, then he was administered oath. That apart, he has deposed, that he knows the accused Devilal, and has deposed, that in the jeep Devilal, Raju Das, and one unknown person was sitting. He saw them in the Mohalla of potters, near the hand pump. He has then deposed that Raju Das got Devilal boarded in the jeep, and witness also hanged behind the jeep, the jeep was stopped at the house of another Devilal on the turn, and the persons occupying jeep were talking, that dinner is to be cooked up, but there is no vegetable. They had gone to the house of Devilal to fetch vegetable at about 8-9 in the night. Then, the witness returned to the house. Then he has deposed that when Khayali Lal was coming from Talab, the witness had seen Khayali Lal, while the witness was going to his house. Then, on the next day he heard that there had been a murder. He was shown the photograph, and he identified it to be of person 10 sitting in the jeep in the night. The photograph was proved as Ex.P-46. He has deposed that he saw Raju Das driving the jeep. In cross examination he has deposed, that in the village Antaliya there are houses of accused Khayali Lal and Devilal. The house of the witness is in the locality of Balai. He has denied existence of any dispute between him, and the accused Devilal, rather the two families are on talking terms. The father of the accused Devilal had died long back. Then, he stated that he was playing in the locality of Potters, other children were also playing. He saw the accused at 8-9 in the night, and at that time there was dark, these persons were going towards Talab, he went upto the house of Devilal, which is at a distance of about 1 furlong, and he did not hear as to what other things were being talked about by the accused. Thus, in our view, it can very safely be said, that the criticism levelled against the reliability of this witness, P.W.14 Mangi Lal cannot be entertained, for the reason, that none of the aspects have been suggested to this witness in the cross examination. Of course, it clearly emerges from his evidence that Devilal, Raju Das and the deceased were going in the jeep, he continued to be with them upto 11 the house of another Devilal (P.W.15), from where vegetable were to be purchased, there from he returned to his house, and en-route he saw Khayali Lal, coming from towards Talab. Thus from this witness it transpires, that it cannot be said that Khayali Lal was also last seen in the company of the accused, and the deceased, in the jeep. Then, we come to the evidence of Devilal, P.W. 15. He is aged 25 years, and is a vegetable vendor. He has deposed, that still he sells vegetable at his house, at the time of around 8-9, Raju Das, Devilal, Mangilal and Khayali Lal, and one unknown person had come to his house for purchasing vegetable. After seeing photograph Ex.P-46, he identified that person to be that unknown person. Accused Devilal asked for tomato, whereupon he denied to be having it. Thereupon the accused persons who had come in a car (jeep) went away. Next day, his brother told that in Padolia, one man has been killed, who has been murdered, and did not tell as to who killed. In cross- examination this witness has deposed that he was interrogated by the police, wherein he has given out, that accused Devilal asked for tomato. In Ex.D-2 Raju Das is said to have asked for tomato, while accused Raju Das and Devilal both had asked for it. He has deposed, that he had given out in the police 12 statement, about the accused persons having come in a car of black colour. Then he has deposed, that the accused persons earlier had never come, to purchase vegetable. He has maintained, that all the accused persons along with unknown person, had come to his shop. Then he has deposed, that Mangilal went to his house on foot, and the remaining other accused persons went in a jeep. Then he has deposed, that the person whose photograph has been seen by him today, was seen dead, at the place of incident also by him. He has further maintained, that he had seen the dead body on the next day of the accused persons coming to him for purchasing vegetable. Then, he has changed it by deposing, that he was only shown the photograph of the dead body on the next day. Accused Devilal was said to be his cousin, but then there is no dispute between them. He has denied existence of any dispute between the family of the accused persons and him. He stated that presently the accused and his families are not on visiting terms, but earlier they were. In our view, regarding Khayali Lal, this witness also cannot be believed, because according to Mangilal, he was hanging behind the jeep till the jeep reached the house of Devilal (P.W.15), and thereafter only Mangilal returned, and while returning he had seen Khayali Lal. So far Mangilal is concerned, who is 13 said to be with the accused persons, this Mangilal is P.W. 14, as would be clear from the fact, that this witness Devilal has clearly deposed, that Mangilal had returned to house on foot. Thus, in our view, so far accused Raju Das, Devilal and deceased are concerned, his evidence is consistent, about these three being together in the jeep, and this part of the statement has not been successfully assailed in cross-examination, except by pointing out a minor contradiction, as to whether the accused Devilal asked for tomato or Raju Das, which in our view is hardly of any consequence. Thus, in our view, the circumstance of the accused persons being last seen in the company of the deceased, soon before the incident, is established against the accused Raju Das, but is not established against the accused Khayali Lal. Now, we take up the circumstance of recovery of the jeep, consequent upon information, and at the instance, of the accused Khayali Lal. In this regard, circumstance appearing from the record, are telling against the prosecution. According to the prosecution Khayali Lal was arrested 14 vide Ex.P-18, which is dated 23.2.2001 at 11 A.M. From naked eye look at that shows interpolation in the date of figure ‘4’ having been converted into figure '3', and to have subsequently again written as 23.2.2001. Of course, it is signed by the I.O., and in the bottom, date is given as 23.2.2001. However, without going into the controversy of interpolation, we, for the present assume, that this accused was arrested on 23.2.2001 at 11 A.M. Then, from this Ex.P-18 it is clear, that Motbirs of this arrest memo are Bagtavarlal s/o Pemaji, and Kailash Chandra s/o Gopilal. The other accused Devilal had been arrested also on 23.2.2001 at 9.30 P.M., and the third accused Raju Das was arrested on 23.2.2001 at 10 A.M. vide Ex.P-17. In the arrest memo of Raju Das one of the Motbirs is Kailash Chandra s/o Gopilal r/o Sevantri Road Charbhuja, who is also Motbir of the arrest memo of the accused Khayali Lal. Obviously, Khayali Lal was arrested after one hour of the arrest of the accused Raju Das. At this place it is significant to note, that in both these arrest memos Ex.P-17 and P-18, it is not mentioned, as to at which place the respective accused were arrested. Then, a look at the statement of I.O. P.W.12 Sunder Lal Soni shows, that according to him, the three accused persons were arrested vide 15 Ex.P-17, P-18, and P-19 which bear his signatures A to B, and the signature of the accused are C to D. Then, in cross examination he has stated, that he had arrested accused Khayali Lal in Ahmedabad. He has maintained that Khayali Lal was not with them from Charbhuja, though Raju Das was there, he does not know the name of area in Ahmedabad, from where the accused Khayali Lal was arrested. He has maintained, that the key of the jeep was not recovered from Raju Das, but was recovered from Khayali Lal, at Sarkhej Road, Ranipur. Before this he has stated, that they had taken witness Kailash Chandra from Charbhuja, though he does not remember, as to whether the witness was in his own jeep, or in the jeep of police. Then, he has further stated, that he had taken Raju Das at about 10-11 in the night with him from Antaliya, and other accused being in Ahmedabad, Raju Das was arrested in Ahmedabad. Then, in order to explain, or cover up, the inconsistencies, he has stated, that he took Raju Das with him on 22.2.2001 in the night, and was arrested on 23.2.2001 in Ahmedabad. In our view, a look at Ex.P-17 does clearly show, that Raju Das was arrested at 10 A.M. on 23.2.2001. Except bald word of mouth, given out by P.W.12, there is nothing to show, that Raju Das was taken by the S.H.O. on 22.2.2001. It is a different 16 story, that in the earlier part he has clearly deposed, that first of all he arrested Raju Das, and took him from Antaliya to Ahmedabad. Obviously, this theory about having taken Raju Das on 22.2.2001, and having arrested in Ahmedabad is only an eye wash projected, which is required to be simply rejected. It is required to be taken note of, that police cannot keep the accused person under detention without arrest, as he is required to be produced before the Magistrate within 24 hours. Police cannot keep any person in custody without showing arrest, so as to enlarge the legally permissible period of detention, being 24 hours. Thus, this cannot be accepted, that Raju Das was detained on 22.2.2001. This inconsistency in the evidence of P.W.12 attaches great significance, about the place of arrest of the accused persons, in the presence of two persons. The S.H.O. could have very well produced the case diary, or relevant extract thereof, in the Court, to have shown material to lend assurance to his word of mouth. In this sequence the information memo of Khayali Lal, being Ex.P-21, does show, that it is recorded at 12.30 in the noon of 23.2.2001, and in this memo the place is mentioned at Rajendra Park, Ahmedabad, and in purported pursuance of this information, the jeep has been recovered vide Ex.P-11 17 at 2 P.M. on 23.2.2001, at Ranikur Patiya, Narol Chokri, Ahmedabad. This shows, that the I.O. was conscious about the fact, that place of preparation of memo, or spots of the event are required to be mentioned, and he has deliberately omitted to mention in Ex.P-17 and P-18. Then, from Ex.P-11 it is clear, that jeep was found standing 100 yards away from the road. Significantly, it is not mentioned in this memo Ex.P- 11, as to how, or wherefrom the keys of the jeep were recovered, or did become available, and how was the jeep brought, while in evidence it is tried to be given out, that the key of the jeep was available with Devi Lal, and from that key the jeep was started. It is a different story that it is not the story of the prosecution that Devi Lal was also arrested at Ahmedabad. Thus, in our view, the totality of circumstances does clearly show, that the theory of recovery of jeep, pursuant to and consequent upon information, said to have been given by the accused Khayali Lal, also does not inspire any confidence. Thus, so far the accused Khayali Lal is concerned, these two being the only circumstances, 18 relied upon by the prosecution against him, in our view, the conviction of Khayali Lal cannot at all be sustained. The findings recorded by the learned trial court, with regard to the conviction of the accused Khayali Lal, are therefore, required to be set aside, and are hereby set aside. Now, we take up the case of the accused Raju Das. The first circumstance against him, being of his having been last seen in the company of the deceased alive, has already been discussed above, and the evidence of P.W. 14 and 15 in this regard has been believed, so far as Raju Das is concerned, and therefore, we need not repeat it. Then, we take up the circumstance of recovery of silver chain, belonging to the deceased, consequent upon his information, so also recovery of the papers of the jeep, and a Rexene bag,