1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Anup Singh @ Anup Kumar Vs. State of Rajasthan. DB CRIMINAL APPEAL NO.1093/2004. DATE OF ORDER: 11th May, 2010. HON'BLE MR.JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Biri Singh Sinsinwar) for the appellant. Mr. Rahul Choudhary) Mr. G.S. Fauzdar, PP for the State. BY THE COURT (PER HON'BLE PATHAK,J): This criminal appeal under section 374 Cr.P.C. has been filed by the accused-appellant Anup Singh against the judgment of conviction and order of sentence dated 24th September, 2004 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jhunjhunu in Sessions case No.41/2002 (46/2002) (32/2001) whereby the accused- appellant has been convicted for the offence under section 302 IPC and sentenced to imprisonment for life and a fine of Rs.5,000/-, in default of payment of fine to further undergo one year rigorous imprisonment. 2. Briefly stated the facts giving rise to the present appeal are that on 27th August, 2000 Inderaj Singh (PW-1), complainant, gave a written report (Ex.P-1) on the spot to Chhagan Lal (PW-24), SHO Police Station Kotwali, Jhunjhunu. It was, inter-alia, stated in the report that on 24.8.2000 at about 2 7.30 a.m. his son Vikas aged about 16 years student of class XII in St. Vinoba School had gone to school did not return home till evening, therefore, a search was made in the colony but he could not be traced. On 27.8.2000 his dead-body was found lying on a hill and his hands and legs were tied. It is further stated that some one might have killed his son out of enmity and thrown his dead-body on the hill. It is also stated that dead-body has been identified by him. It is also stated that he has all the doubt that his son has been done to death by Anup Singh son of Shrichand by caste Jat Resident of village Kithana. The above report was sent for registering a case in the police station through constable no.685 Prahlad Singh at the police station Kotwali. 3. On the basis of above report, FIR no.211/2000 under section 302 IPC was registered and investigation commenced. The accused-appellant was arrested during the course of investigation vide arrest memo Ex.P-12 on 25.10.2000 i.e. nearly after two months of registering the case in the police station. After his arrest, the accused-appellant made disclosure statement Ex.P-25 on 28.10.2000 at 9.00 a.m. In the disclosure statement he stated that he had kept one school dress of St. Vinoba School in a room of his house. In pursuance of the disclosure statement (Ex.P-25), recovery was made on the very same day vide Ex.P-9 in the presence of Jagdish (PW-3) and Ramjilal (PW-12). It is significant to 3 mention here that the dress recovered had already been washed. Another disclosure statement (Ex.P-26) was made by the accused on 28.10.2000 at 9.30 am. In the disclosure statement accused stated that on 24.8.2000 he along with deceased Vikas consumed beer and namkin in the noon on Eastern side of 'Kanha hill' near a neem tree. The empty bottles of beer, empty pouches of namkin and the shoe laces of the deceased which he had thrown there be recovered as he was prepared to get these articles recovered. On the basis of above disclosure statement, recovery was made vide memo Ex.P-14 in the presence of Ramjilal (PW-12) and Jagdish (PW- 3). The post-mortem on the dead-body was conducted by Dr. J.P. Bugaliya (PW-14) on 28.8.2000. In the opinion of the doctor, the cause of death was ante-mortem injuries found on the body, coma due to injury to brain and shock due to cumulative effect of all injuries particularly injuries on chest, face and skull. The post-mortem report (Ex.P-17) was prepared by him. The clothes and other articles seized were sent to the FSL, Jaipur for examination and the FSL report (Ex.P-38) and 39 were received. It appears from the FSL report that on the clothes etc. human blood was found. The blood group could not be determined. After completion of investigation, charge- sheet was filed before the Magistrate who committed the case to the court of sessions and the case ultimately came for trial before Additional Sessions Judge (Fast Track) No.1, 4 Jhunjhunu who framed charge against the accused for the offence under section 302 IPC on 20.4.2002 to which the accused denied and claimed trial. 4. In support of its case, the prosecution examined as many as 25 witnesses and tendered 33 documents in evidence. On behalf of the defence side, two witnesses were examined and some documents were got exhibited. 5. After close of the prosecution evidence, in the statement recorded of the accused-appellant under section 313 Cr.P.C., it was stated that he has been falsely implicated in the case. He never made any disclosure statement. The dress alleged to have been recovered was school dress and was also at times worn by his brother. In defence evidence, Madan Lal and Ram Nath Singh Dws 1 and 2 respectively were produced to show that on the day of incident, the accused was not at Jhunjhunu. 6. After hearing final submissions, learned trial court convicted and sentenced the accused appellant as indicated here-in-above. 7. We have heard learned counsel for the accused- appellant as well as learned public prosecutor for the State and carefully perused the material available on record. 8. In the present matter, the points for consideration are: (i) Whether the death of the deceased was natural or 5 homicidal? (ii) Whether the prosecution has been able to complete the chain of circumstances to prove the guilt of the accused? (iii) Whether the last seen evidence and the evidence in relation to recovery made in the present case is reliable so as to conclude that it was only the accused who committed murder of deceased Vikas? (iv) Whether the trial court has rightly convicted and sentenced the accused or not? POINT NO.(i): 9. In this case, the dead-body of Vikas was found on a hill on 27.8.2000. The post-mortem was conducted by Dr. J.P. Bugaliya (PW-14). In his statement he has stated that while he was posted as Medical Jurist in BDK Hospital, Jhunjhunu, he conducted the post-mortem on the dead-body of deceased in the capacity as member of the Medical Board constituted in this regard. He has stated that he found following injuries on the person of the deceased: “The body was in decomposed state with peeling of the epidermis at places and blackening of epidermis at places. Majots (pupa and larva stage) present all over body cornea of both eye balls absent and sockets of both eye balls collapsed. Ligature of Baniyan present on neck encircling the neck and passing through mouth and over mandible. Knot of ligature present on left side over angle of mandible (ligating material (baniyan) removed at the time of PM to be handed over to police). Both arms tied with shirt. Ligature at level of wrists below left 6 knee after partial flexion of it. Thigh ligature material (shirt) removed at time of PM to be handed over to police. Skin (full thickness) peeled off on both legs above ankle joints over an area of 5 cm wide strip on exploration at site of neck, both arms at wrist level and both legs above ankles. There are evidence of sub cuticle haemorrhage indicating ante- mortem in nature. There is a lacerated wound 3 cm x 2 cm x mouth cavity deep on left maxillary area of face. On exploration left maxilla bone is fractured and lying loose in the oral cavity. Mandible is fractured on right side. Teeth loosened and coming out from sockets in both upper and lower jaws, scalp and underlying bones over an area of 18 cm x 12 cm in right parieto tempo frontal area are absent and skull is lying open whole brain tissue and membranes are absent from skull cavity.” 10. In his opinion, the cause of death was anti-mortem injuries, coma due to injury to brain and shock due to cumulative effect of all injuries, particularly injuries on chest, face and skull. 11. From perusal of the statement of Dr. J.P. Bugaliya (PW-14) and Indraj Singh (PW-1), the father of the deceased who identified the dead-body of the deceased, there remains no doubt that the deceased died because of ante-mortem injuries. The death was not natural one and it was homicidal. Thus, answer to the point no. (i) is accordingly. POINTS NO.(ii) & (iii): 12. Since, point nos. (ii) and (iii) are inter-related to each other, they are being answered together. 13. The present case is based on circumstantial 7 evidence. The learned trial court has relied upon the evidence of last seen and the evidence of recovery. In the evidence of last seen, the witnesses which have been relied upon by the prosecution are Jeevan Ram (PW-2), Vinod Kumar (PW-4), Ram Kumar (PW-5) and Pyare Lal (PW-6). 14. Jeevan Ram (PW-2) has, in his statement, stated that at the relevant time he was a student in St. Vinoba School and in his class both the accused and deceased were studying. He has also stated that on 24.8.2000, there was test of Hindi in the morning in which the accused and deceased both appeared. At about 9.00 a.m. accused Anup asked deceased Vikas to accompany him and both of them left the school and did not return back to school and also did not appear in the second test of English. In the cross-examination he has stated that there were about 50-55 students who had appeared in the test and after the test was over, they went out of the class- room. He has also stated that he had no talks either with the deceased or the accused-appellant. This witness was confronted with his police statement (Ex.D-1) in relation to number of students to which he stated that he does not know why the police has not mentioned the correct number. The statement of this witness is only relevant to the extent that on 24.8.2000 he had seen the deceased and the accused appearing in the test. 15. Vinod Kumar (PW-4), the brother of deceased, has 8 stated that the deceased and accused were studying in Class XII-B in St. Vinoba School, Jhunjhunu. He has stated further that there was one girl name Anupriya in the class who was in friendly terms with him, the accused was not happy with his friendly relation with Anupriya. He has also stated that he told about the grudge of the accused with him to his brother Vikas, the deceased. Earlier Vikas was studying in some other school and subsequently was got admitted in his school and without disclosing the fact that the witness (Vinod) was his brother developed friendship with the accused to know extent of enmity of the accused with Vinod. He also stated that some quarrel also took place between the accused and the deceased as the accused spoke some foul words about Anupriya. He has also stated that after some time matter was compromised between them. In relation to the incident, he has stated that on 24.8.2000 at about 7.00 a.m., he along with deceased reached near the school gate where accused was standing and telling that since the marks obtained in the test would not be counted, therefore, accused suggested the deceased not to appear in the test. He stated that when this talk was going on between his brother (deceased) and the accused, he left them there to appear in the test. He also stated that after the first test was over, his brother deceased Vikas came to him and told that he was going with accused some-where. In the interval at 10.00 a.m. he made enquiry about deceased's where-about from 9 Vikram and Virendra, it was told that deceased had gone with accused in the morning at 9.00 a.m. some-where and thereafter deceased did not return home. He has further stated that a search was made by them of the deceased but he could not be traced. He has also stated that he met Vikram on that day and he was telling that accused had told him that he would go to Udaipur. He has also stated that Anup's father had also informed them that Anup had gone to village. On the next day also Anup was not available in the town. He has further stated that on 27.8.2000 when he and his father went to Anup's house, he was there and on an inquiry made about the deceased, the accused shown his ignorance and stated that he had gone to Udaipur and was not aware about the where- abouts of the deceased. He stated that in the evening of 27.8.2000, a news came to his father that some dead-body was lying on Kanha hill, therefore, he along with his father went at the spot and saw that a dead-body was lying there and on seeing the dead-body carefully, it was found to be of Vikas. He has also stated that after some days of the incident, two persons of the village, namely; Ram Kumar and Pyarelal also told that on 24.8.2000 they had seen the accused and deceased going together at the side of Kamruddin's Dargah. In the cross-examination, he stated that Anup was defaming him and Anupriya and for this reason they were not having good relations with accused. In relation to improvements made in the 10 statement made before the court when the witness was confronted with his police statement (Ex.D-2 and 3, which were recorded twice by the police), he stated that he had given the statement to the police what-ever he has stated in the court. The important aspect in relation to his police statement (Ex.D-2 and 3) is in relation to Ram Kumar and Pyarelal whose statements were recorded after two months of the incident. In the cross-examination he stated that he disclosed the names of the above persons that they had seen the deceased in the company of the accused but why the police has not mentioned their names in the statement Ex.D-2, he does not know. 16. Up to the stage of recording the statements of Jeevan Ram and Vinod Kumar Pws 2 and 4 respectively, it was not known as to who was the accused because Chhagan Lal (PW-24), SHO and investigating officer of the case in his statement has stated that he made investigation in the matter from 27.8.2000 to 19.10.2000 and up to 19.10.2000 no evidence was available on the file to connect the accused Anup Singh with the murder of deceased Vikas. 17. Ram Kumar (PW-5), another witness in relation to the evidence of last seen, has stated that on 24.8.2000, he and Pyarelal had gone to Jhunjhunu and while they were passing through Mandawa turn near Dargah, they saw deceased Vikas and one another person. On seeing them Pyarelal asked Vikas as to where he was going to which Vikas replied that he and 11 his friend Anup were going some-where for some work. He stated that it was some-where about 1-1.30 p.m. He has also stated that Vikas at that time was wearing check shirt and black pent and the boy who was with deceased Vikas was wearing school dress. He also stated that when the dead-body of Vikas was found on Kanha hill then they told Indraj Singh (PW-1) that they had seen the deceased on 24.8.2000 in the company of accused. He has also stated in the cross- examination that Indraj Singh (PW-1), the father of the deceased, had also assured them that he will tell this fact to the police. He admitted that his statement was recorded two months after the incident by the police at police station as one police constable came to them and he along with Pyarelal when reached the police station their statement was recorded on the same day by the police. 18. Pyarelal (PW-6) is also the witness in relation to the evidence of last seen. He has stated that on 24.8.2000 when he and Ram Kumar (PW-5) were passing through Kasaion ka Mohalla and reached near Mandawa turn, they met the deceased and one boy near Kanha hill. He also stated that he made inquiries from the deceased as to where he was going, to which the deceased replied that Anup who was with him was his friend and was also studying in school and they were going just for a walk towards Kanha hill. He also stated that at that time Vikas was wearing check shirt and a coloured pent. He 12 also stated that the boy who was with deceased was wearing school dress. He also stated that when the dead-body was recovered, he and Ram Kumar disclosed the fact that they saw the deceased in the company of the accused to his father. In the cross-examination, he has stated that after 2-3 days of cremation of the dead-body, he told Indraj Singh (PW-1), the father of the deceased, that he saw the deceased in the company of accused while the deceased was going towards Kanha hill. He further stated that his statement was recorded after two months of the incident in the police station as one constable came and took them to the police station. 19. A perusal of the statement of above witnesses clearly indicates that their evidentiary value in relation to last seen is not reliable firstly for the reason that Chhagan Lal (PW- 24) SHO of police station at the relevant time has stated that up to 19.10.2000 he conducted investigation in the case and from the investigation it did not establish that present accused committed the offence. Secondly, for the reason that Ram Kumar (PW-5) and Pyarelal (PW-6) never disclosed about involvement of accused in any manner for two months to anybody and, thirdly, for the reason that Indraj Singh (PW-1), the father of the deceased in the report submitted at the spot has not uttered a word about Pws 5 and 6 that they had seen the deceased in the company of accused on 24.8.2000. Fourthly, it is only after recording the statement of above two 13 witnesses after two months of incident, the accused was arrested and his disclosure statements were obtained. It also appears that the disclosure statements were also made by the accused after four days of the arrest. Be that as it may, the statement of Ram Kumar and Pyare lal Pws 5 and 6 respectively if read together, it would indicate that Pyarelal (PW-6) states that he made inquiries from the deceased as to where he was going to which deceased replied that they were going towards Kanha hill but this fact is not stated by Ram Kumar (PW-5) in his statement. A perusal of cross-examination from the above witnesses and delay in recording the statement of above two witnesses inspires no confidence so as to conclude that the witnesses had seen the deceased in the company of the accused on 24.8.2000. The above witnesses relied upon by the prosecution and their testimony has been considered reliable by the trial court, in our opinion, inspires no confidence. The learned trial court has not properly appreicated the evidence of these two persons in relation to the fact that they have seen the accused and deceased together on 24.8.2000. 20. Now, the circumstance which has been relied by the learned trial court is in relation to recovery made in the case of the dress of the accused from his house and also some pieces of glass of bottles recovered from the hill. The above recovery made is undoubtedly from an open place and 14 recovery of dress from the house itself is not to be considered the circumstance which would connect the accused-appellant with the crime. In the present case, the blood group could not be ascertained from the seized articles sent for FSL examination and the statement of Jagidsh and Ramjilal PWs 3 and 12 respectively, the witnesses of recovery, when read as a whole, it does not appear that the recoveries in fact made are reliable one. In the instant case, the recoveries made of glass of beer bottles, lid of beer bottles and also some pouches of namkin, on the basis of disclosure statement of the accused appears to have been made from a hill where several persons go and the place is an open place and to conclude that the deceased and accused both had gone on the hill and they consumed liquor on 24.8.2000, the guilt of the accused is required to be recorded will not be the correct appreciation of evidence. It is also significant to mention here that in the post- mortem report, it does not appear that the deceased had consumed beer on the day of incident. If that be so, to connect the accused with the crime that on 24.8.2000 the accused and deceased consumed beer and thereafter threw the empty bottles and those empty bottles and empty namkin pouches which they had taken with them. It is also unbelievable that 5-6 bottles will be consumed by two boys and some of the pieces of bottles and other things including cigrette buds recovered will be incriminating evidence to connect the accused with the 15 crime unless some evidence regarding their procurement is placed by the prosecution to complete the event of circumstances in this regard. We are, thus, of the opinion, that the recovery in the case made on the basis of disclosure statement is also of no significance to connect the accused with the crime. The chain of circumstance is not complete so as to draw a conclusion that it was only the accused who committed the offence and none else. The position of law is also settled on the point that the recovery made from an open place which is accessible to all then such recovery is normally not to be made the basis to record guilt of the accused. In the present case, two circumstances have been relied upon by the trial court which are of last seen and recovery. The evidence in relation to both the circumstances have not been properly appreciated and in fact evidence has been misread because it is only after recording the statement of Ram Kumar (PW-5) and Pyare Lal (PW-6) accused was arrested and the investigating officer of the case Chhagan Lal (PW-24) says that up to 19.10.2000 from his investigation, it did not reveal that the accused-appellant was in any manner responsible to commit murder of the deceased. As has been discussed in detail here- in-above, the statement of Ram Kumar (PW-5) and Pyare Lal (PW-6) recorded by the police after two months of the incident creates doubt about its correctness. There does not appear any explanation as to why for two months if the most material 16 witnesses were available, there statements were not recorded by the police. Thus, answer to the points framed is that the prosecution has not been able to complete the chain of circumstances to draw a conclusion that it was only the accused who committed the murder of the deceased and evidence of last seen and the recovery is not reliable as it does not inspire confidence of the court. The points (ii) and (iii) are answered accordingly. 21. In view of the answer to points (i) to (iii) above, the answer to point (iv) is that the trial court has not appreciated the evidence properly and the conviction recorded by the trial court of the accused-appellant for the offence under section 302 IPC is required to be set aside and this appeal deserves to be allowed. The point (iv) is answered accordingly. 22. In the result, this appeal is allowed. The judgment of conviction and order of sentence dated 24.9.2004 passed by Additional Sessions Judge (Fast Track) No.1, Jhunjhunu is hereby set aside. The accused appellant Anup Singh