1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT MOHAN LAL @ MANNA LAL vs. STATE OF RAJASTHAN. D.B. Criminal Jail Appeal No.996/2003 against the judgment and order dated 23.08/2003 passed by the Additional Sessions Judge, Nathdwara in Sessions Case No. 14/2003. ................. Date of Judgment: 16th July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Vivek Shah ] for the appellant. Mr.K.R.Bhati ] Mr.A.R.Nikub, Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): By this Criminal Jail Appeal , appellant Mohan Lal @ Manna Lal ,has assailed the judgment and order dated 23.08.03 passed by the learned Addl.Sessions Judge, Nathdwara in sessions case No.14/2003 whereby the accused appellant has been convicted for the offence under Sections 302 and 397 IPC and for the commission of offence under section 302 IPC sentenced to imprisonment for life and a fine of Rs. 2000/-,and for the commission of offence under section 397 2 IPC sentenced to seven years' rigorous imprisonment . In default of payment of fine, to further undergo one month's simple imprisonment. Further the learned trial court ordered to serve the substantive sentence concurrently. The brief facts of the case giving rise to this jail appeal are that on 03.02.03 , complainant Kuka lodged a complaint at the Police Station, Delwara, District Rajsamand to the effect that on 02.02.03 in the morning at about 10.00 AM, as usual , his mother Huri Bai took their goats for grazing in the field and in the evening at about 06.00 PM only the goats returned but his mother did not return and then he, along with his neighbours, went in search of her to the house of his relatives and also to his field but he could not find his mother anywhere and since it was getting late at night he returned home. Again in the morning on 03.02.03, he along with his relatives and the villagers, collectively started searching for her and finally Dhula and Pappu Singh found the body of his mother lying in the field. She was attacked by some unknown persons and was murdered. Both her legs were amputed from below the knees and her all ornaments were taken away. On this report, FIR No.04/03 under Sections 302 and 397 IPC was registered and the investigation commenced. During investigation, Police arrested the accused appellant Mohan Lal @ Manna Lal and the weapon of offence was recovered at his instance. Further , ornaments which were worn 3 by the deceased, were recovered at the instance of accused appellant. After usual investigation, a charge sheet under section 302 of the Indian Penal Code was submitted in the court of Judicial Magistrate, Nathdwara from where the case was committed to the court of Addl. Sessions Judge, Nathdwara for trial. The learned trial Court, framed charges against the accused appellant Mohan Lal @ Manna Lal under sections 302 and 397 IPC to which he denied the charges and claimed to be tried. The prosecution, in support of its case, examined 15 witnesses , namely, PW/1 Nakari Bai, PW/2 Deu, PW/3 Gamera PW/4 Megha, PW/5 Kuka, PW/6 Nava PW/7 Dauli Bai, PW/8 Dr.Rizvi, PW/9 Dilip, PW/10 Mohan Lal, PW/11 Sumer Singh PW/12 Dinesh Sukhwal, PW/13 Mahesh, PW/14 Brijpal Singh and PW/15 Nana Lal and also produced documentary evidence. The statement of the accused appellant Mohan Lal @ Manna Lal was recorded under section 313 Cr.P.C., wherein he denied the fact of recovery of ornaments at his instance and stated that he has been falsely implicated in criminal case. After hearing the learned counsel for the accused and the learned Public Prosecutor and appreciating the evidence on record, the learned trial Court, vide impugned judgment and order dated 23.08.2003 convicted and sentenced the accused appellant Mohan Lal @ Manna Lal , as stated above. Hence this 4 criminal jail appeal by the present accused appellant. We have heard learned counsel for the appellant and the learned Public Prosecutor for the State, carefully gone through the impugned judgment and order, as also the record of the case. The learned trial Judge, while relying on the evidence of recovery of the ornaments at the instance of the information recorded under section 27 of the Indian Evidence Act, of the accused appellant found guilty the accused appellant of the offence under section 302 and 397 of the IPC. In the concluding part of his judgment the learned trial Judge found four circumstances against the accused namely, ; 1. the accused did not show any interest in searching the dead body of deceased Huri Bai and further he did not answer any question asked by witnesses regarding deceased Huri Bai, 2. the accused appellant did not take part in the funeral ceremony of the deceased inspite of the fact that the dead body was found in the cattle shed of the accused appellant. 5 3. the ornaments of the deceased were recovered at the instance of the accused appellant and 4. the accused did not produce any evidence which can create suspicion about the guilt of the accused. The main contention of the learned counsel for the accused appellant is that the learned trial Judge in para No.14 of the judgment held that as the axe recovered at the instance of the information of the accused appellant did not found to be blood stained, therefore, the recovery of the axe did not connect the accused to the offence charged and the learned trial Judge relied on the other circumstantial evidence as mentioned in para 17 of the judgment. The contention of the learned counsel for the accused appellant is that in case of circumstantial evidence, the prosecution must prove each essential circumstances by leading trustworthy evidence and the circumstances so proved, must constitute an unbroken chain , leading towards infallible conclusion of the guilt of the accused. The circumstances so proved, should be consistent with the innocence of the accused and also exclude every other 6 hypothesis however, remote , of the guilt of any other person except that of the accused appellant. The counsel for the accused appellant argued that in this particular case on the basis of evidence of PW/14 Brjraj Singh and PW/12 Dinesh Sukhwal a reasonable suspicion arises that from where the ornaments which were mixed for the identification were brought ?. Because of the fact that PW/12 Dinesh Sukhwal deposed in his cross examination that the articles which were mixed in the recovered articles for identification were brought by Sarpanch Saheb, whereas PW/14 Brijraj Singh deposed in his cross examination that he does not know that from where the ornaments which were mixed for identification were brought. Further, the learned counsel for the accused appellant argued that Ex.P/15 is a most important document of memo of identification and in Ex.P/15 it is narrated that the ornaments which were mixed for identification parade were brought by Rampal Singh-617 in sealed cover. Thus, as per the prosecution version , there are three stories about the ornaments which were brought for mixing with the articles which were recovered and, from , this evidence it can be said that the police authorities did not completely obliterate from the identification parade because these articles were brought by Rampal Singh–617. Merely on the basis of this evidence, the definite suspicion arises regarding the trustworthiness of this identification parade and when the learned trial Judge did 7 not rely on the recovery of axe ,then the recovery of ornaments at the instance of the accused as per the evidence recorded under section 27 of the Indian Evidence Act ,cannot be termed as trustworthy, in view of the above evidence. Per contra, the learned Public Prosecutor vehemently defended the judgment of the trial court and further argued that on the basis of the recovery of the ornaments at the instance of the accused appellant, the learned trial Judge found the accused appellant guilty of offence section 302 and 397 IPC, it does not suffer from any infirmity or illegality and a complete evidence in this regard is reliable one and trustworthy. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and scanned the evidence available on record. As per prosecution version, the evidence of four witnesses, namely PW/3 Gamera PW/9 Dilip, PW/12 Dinesh Sukhwal and PW/14 Brijpal Singh is relevant regarding the recovery of ornaments and identification parade of the recovered articles. PW/12 Dinesh Sukhwal deposed that at the instance of the accused appellant, ornaments were recovered from the shop of PW/9 Dilip and further PW/3 Gamera corroborated the evidence of PW/12 Dinesh Sukhwal. PW/14 Brijpal Singh conducted the identification parade of 8 recovered ornaments and prepared memo of identification as Ex.P/15. If we appreciate the evidence of these four witnesses, it is clear that there is important contradiction regarding the fact of bringing the articles which were mixed during identification parade. This contradiction is more significant when the available incriminating evidence against the accused is only of circumstantial evidence. In this particular case, the identification parade does not inspire faith and cannot be termed as trustworthy , because , the ornaments which were mixed during the course of identification parade process, were either brought by Rampal Singh or by any other person and in this regard there is serious contradiction in the statement of PW/14 Brijraj Singh and PW/12 Dinesh Sukhwal the investigating Officer and the version as noted in the memo of identification Ex.P/15. The process of identification can only be relied upon when the police have completely obliterated themselves from the parade. The contradictions as argued by the learned counsel for the accused appellant, automatically make the recovery as unreliable and, therefore, this circumstantial evidence against the accused appellant cannot be termed as trustworthy or reliable one. In view of the aforesaid discussions, the circumstantial evidence available against the accused appellant regarding the recovery of the ornaments being 9 unreliable and untrustworthy, the offence under section 302 and 397 IPC against the accused cannot be found proved. As per the settled legal position, the other grounds relied upon by the learned trial court for convicting the accused appellant for commission of offence under section 302 and 397 IPC, cannot be reasonable ground for conviction. In the result, the appeal deserves to be allowed. Resultantly the appeal is allowed and the accused appellant Mohan Lal @ Manna Lal is acquitted of the charge levelled against him under section 302 and 397 IPC The judgment and order dated 23.08.03 passed by the learned Addl. Sessions Judge, Nathdwara, in Sessions Case No.14/2003 is set aside. The accused appellant Mohan Lal @ Manna Lal be set at liberty, if not required in any other case. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george