Page No. 1 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. Raju @ Jagdish Vs. State of Rajasthan 2. Raju @ Munna D.B. CRIMINAL APPEAL NO. 777/2002 Against the judgment & order dt. 09.08.2002 passed by Additional District & Sessions Judge (Fast Track), Anupgarh, Sriganganagar in Sessions Case No. 136/2001. Date of Order : 30th May, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr. Trilok Joshi, for the appellants. Mr. V.R. Mehta, Public Prosecutor. REPORTABLE BY THE COURT: (PER HON'BLE TOTLA, J.) The accused appellant Raju @ Jagdish S/o Shankar lal and one another stands convicted by learned Additional Sessions Judge (Fast track), Anupgarh vide judgment dated 09.08.2002 in Sessions Case No. 136/2001 for the offence of Section 302 read with 34 and Section 201 with 34 and sentenced to life imprisonment and fine of Rs.100/- in default one month rigorous imprisonment for Section Section 302/34 IPC and for Section 201/34 IPC, five years rigorous imprisonment and Rs. 100/- fine in default one month rigorous imprisonment. Page No. 2 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) Appellant Raju @ Jagdish preferred the appeal through jail and the same registered as Appeal No. 777/02 and order dated 11.03.08 and other orders were passed. An application under Section 482 Cr.P.C. preferred on behalf of Raju @ Munna S/o Ram Charan requesting that in the Appeal No. 77/02 on behalf of Raju @ Jagdish inadvertently jail authorities failed to mention name of applicant Raju @ Munna S/o Ramcharan, so the appeal No. 777/02 may also be treated on his behalf i.e. Raju @ Munna. Heard learned counsel for both accused Raju @ Jagdish and Raju @ Munna and learned Public Prosecutor. The brief facts, as per prosecution appears to be somewhat like this that on 28.05.2000 at 11.00 AM, one Smt. Saraf Kaur W/o Makhan Singh, aged 60 years reported at Police Station, Raisinghnagar that in the morning around 9 AM, she reached her field for burning “Jhape” and when reached near tree of “ker” on field, saw dead body of a person lying buried in soil near the tree and placed above the body were “jhape” of ker and only a foot of leg was visible. This oral information recorded in Roznamcha of P.S. Raisinghnagar at Entry No. 790 and S.H.O. Shri Rajesh Beniwal alongwith other police personnel and photographer proceeded to examine veracity of the information received. As per prosecution, S.H.O. on the basis of what he observed at the spot forwarded his report Ex.P/25 to the police station. As per information Ex.P/25, when he reached at the field, observed that near the Ker tree is lying a dead body of a person on which Page No. 3 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) to conceal, is soil and thorns of Ker -only lowest part of foot is visible and blood is there. It was also mentioned that there appears to be some foot marks of 2-3 persons and one broken chappal is also lying. As per report of S.HO, body could not be identified and because of wind, head also was visible and from head and hair, the dead person was found to be a man. At about distance of 225 mt towards southern side of body some marks of vehicle coming and going were fund and body not appeared to be older one. The S.H.O inferred that some unknown person might have killed the victim and concealed the body there. The report Ex.P/25 was forwarded to police station from spot on basis of which FIR NO. 195/2000 Ex.P/26 was registered for the offences under Section 302, 201, 314 IPC. The SHO during investigation I.O. inspected the site and prepared memo Ex.P/22- samples of blood stained soil and also of plane soil taken and one broken chappal was also seized and sealed packets which are marked B,C & D and memos are Ex.P.16, 17 & 18. Also found at the place of occurrence lying somewhat concealed in dust a key ring bearing photo of Karni Mata in which were 5 keys which were also seized and keys appear to be of a Jeep, memo prepared Ex.P/20. The body was removed from the soil in presence of tehsildar and examined. Worn clothes found on the body i.e. shirt, pant, underwear, turban which were seized and sealed packet are marked D memos are Ex.P/221, 22 & 23. Postmortem conducted at spot report being Ex.P/12. The body identified by Baljeet Singh as being of his father Tarsem Singh. The keys and ring found disclosed by owner of the jeep NO. RSM 9147 to be of this vehicle. The Page No. 4 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) sealed keys packet marked E and memo Ex.P/24. The site plan is Ex.P/16 & 17. Impressions of seal used for packing chappal and keys separately prepared and kept which are Ex.p/29 & 30. It is alleged that in jurisdictional area of other Police station kherapa on 16.06.2000 at about 8 PM, one the jeep found in possession of accused appellant Raju @ Jagdish S/o Shankar lal bearing No. RSM 9141 on the front and No. RSM 9147 on rear which seized and also found in vehicle registration certificate, insurance policy and driving licence of Tarsem Singh and a receipt seized. Both Raju @ Jagdish and Raju @ Munna arrested vide memos Ex.P/1 & Ex.P/2 in this registered FIR of P.S. Raisinghnagar. Jeep too was taken memo of which is Ex.P/27. On information furnished by both, Ex.P/27 {some memos have same exhibit number) and at their instance, from below a small bridge on road of 71 NP, recovered (i) iron pipe 2 ft 7 ½ inch on which written 321781 CUST NO. 382288 and having some blood stains (ii) stepney with white cover on which was written Deepa Radio and TV Centre, Raisinghnagar and (iii) small bag written over it Deepak Electronics, Raisinghnagar- which were seized and sealed packet of pipe marked F and of others marked G. Memo of recovery is Ex.P/14 and site plan Ex.P/13A. During course of investigation, prior to arrest of appellants, published (with photo of Jagdish @ Raju) and circulated an appeal on behalf of S.H.O. P.S. Raisinghnagar that such man committed murder at 52 NP, of driver of vehicle RSM 9147 on 27.05.2001 and is absconding Page No. 5 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) and who gives information shall be rewarded Rs. 5000/- by the jeep owner. Packet of sealed articles forwarded to FSL, receipt obtained Ex.P/27 and FSL report Ex.P/28. After usual investigation, chargesheet for both i) Raju @ Jagdish ii) Raju @ Munna submitted. When charged of offences for Section 302 with 34 IPC and Section 201 or 34 IPC, pleaded not guilty. In evidence, in trial court PW/11 Smt. Saraf Kaur is said to have informed the police station but she has denied of doing so. Rajesh Beniwal PW/17 was SHO at Raisinghnagar who is investigating officer and stated all as mentioned above and also exhibited and proved the memos. PW/16 ASI was incharge P.S. who registered FIR Ex.P/26 on receipt of report of SHO Ex.P/25 and procured seized jeep and documents form P.S. Kherwad. Deepak PW/1 is the owner of the jeep RSM 9147. As per his deposition, Tarsem Singh was his driver. Gena Ram PW/3 was then S.H.O. P.S. Khdwad and states that on being informed that two youngsters having a jeep are in village- after interrogation seized the jeep and arrested both. Dhuda Ram PW/7 also states that these persons had the jeep, Smt. Jogendra Kaur PW/15 wife and Baljeet PW/14 son identified the dead body as that of Tarsem Singh. Charan Das PW/2 and Bhajan Singh PW/12 are said to be witnesses regarding Smt. Saraf Kaur having gone to her field. Pal Singh PW/9, Bhura Ram PW/10, Om Prakash PW/13 and Pawan kUmar PW/19 are witnesses of recovery etc. PW/4, 5 & 6 relates to keeping packets of recovered articles at P.S. and delivering them intact to FSL. Muniram Bagadiya PW/18 was then posted as Page No. 6 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) Tehsildar Raisinghnagar before whom body buried in soil extracted, memo of which Ex.P/21 bears his signatures whereas, PW/8 Dr. Gopal das Handa conducted postmortem, report is ex.P/12. On examination under Section 313 Cr.P.C, both accused claimed ignorance and stated that they are innocent and do not even know the prosecution witnesses. Raju @ Jagdish also mentioned that wife of deceased was indulging in some prostitution activities against whom case also registered, copy of which and her arrest are Ex.D/2 & D/3. Learned Additional Sessions Judge inferred that (i) Jeep RSM 9147 owned by Deepak and was in possession with driver Tarsem Singh (ii) Found key ring and keys near body is of the jeep (iii) Documents of jeep No. RSM 9147 and licence of Tarsem Singh found in possession of the appellants (iv) Pipe, Stepney with cover and a bag recovered at the information and instance of appellants (v) blood stains on clothes of deceased found at place of occurrence and on the pipe recovered from the accused are of blood group A. According, learned Additional Sessions Judge convicted the appellants as above. Learned counsel for the appellants forcefully argued that (i) Absolutely no direct evidence for involvement of accused in the said incident. (ii)Recovery of jeep or any other article from the appellants not proved (iii)jeep even if recovered is after 18-19 days of incident -for sake of argument if assumed to be in possession of appellants does not Page No. 7 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) connect them with the incident. (iv)Recovery of pipe, stepney, bag etc also is after 20 days -from a open place said to be below the bridge of a public road- for the sake of arguments, even if assumed that stepney etc belong to this jeep even then it does not connect them with crime. (v)For conviction on the basis of circumstantial evidence, complete chain of circumstances must be there with strict proof. Also drawn attention for alleged contradictory oral evidence regarding information of crime, occurrence, recoveries and related things. Learned Public Prosecutor contended that from postmortem, it is proved that injuries to Tarsem Singh so grievous so as to certainly cause death - jeep and documents recovered from appellants. Appellants could not explain possession of jeep and driver of jeep was deceased- deceased was having jeep keys which found near his body and jeep found in possession of the appellants in whose possession stepney of jeep and also bag etc of owner was found. So, the only inference is of guilt of accused appellants. We have thoughtfully considered the rival contentions and carefully perused the record. As for identification and death, evidence of wife and son both proves that body was that of Tarsem Singh who soon after death was identified by them. Dr. Gopal Das Handa PW/8 conducted the postmortem on 28.05.2001 at 3:30 PM report of which proved to be Ex.P/12. On the body was found as many as 4 lacerated wounds around Page No. 8 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) face and parietal region with injury on left arm and right shoulder and also fracture of right parietal bone. As such proved is that Tarsem Singh died within 24 hours of inflicting the above injuries. From the evidence of owner of jeep PW/1 and also that of wife of deceased PW/14 Baljeet and PW/15 Jogendra Kaur proved is that Tarsem Singh was driver of this vehicle owned by Deepak. From the evidence of these witnesses also it is proved that deceased went with the jeep in afternoon and did not return till late next morning. As per owner of the jeep Deepak PW/1 when driver Tarsem Singh did not return, he around 9 AM in the morning went to bus stand where Tarsem Singh used to be with jeep where some drivers of other vehicle told that two persons had hired jeep in the evening and then as per PW/1 Deepak,on next day when he ws going towards bus stand (Deepak PW/1) was informed that driver is killed and keys found. In statement of this witness PW/1 recorded during investigation Ex.P/1 not mentioned is that some drivers told him that two persons had hired the vehicle. As per son PW/14 and wife PW/15 of Tarsem Singh, in the evening when victim did not return, he though that he may be out and in evening. Owner also inquired them who was told accordingly. In the morning, they were informed that dead body is found. As per wife of deceased also in the evening her husband did not return so she had a thinking of his being out on duty. Then on the next day, owner Deepak PW/1 told that a dead body with keys of jeep is found. As per owner of the jeep PW/1 Deepak, in the evening Tarsem Singh came and asked for Page No. 9 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) getting deck (tape recorder) repaired and went away and till next morning, driver did not return then he inquired at bus stand and then, on second day was informed that keys are found and driver is dead. It may be mentioned that there is no definite evidence or any circumstance indicating that appellant accused hired the jeep or was in the jeep. As per son and wife of deceased, it is clear that they last saw Tarsem Singh in the morning and body was found next morning i.e. after a day and a night. As per PW/1 Deepak, two night elapsed after tape recorded was left with him. Certainly on the basis of keys found at the place of occurrence, no inference can be drawn, particularly when nothing is to indicate that at that time any appellant was with or around the vehicle and no worthy accepting circumstance/fact/evidence of hire by them. As per the Investigating officer PW/17 Rajesh Beniwal the found keys at the spot were identified to be of his jeep by vehicle owner Deepak, memo of which is Ex.P/24 and after seven days of incident he found that one of the culprit is Raju so he published pamplet EX.P/26. Assuming this to be true, may be that by 6th or 7th day pamphlet Ex.p.26 circulated. SHO PW/3 Goma Ram states that on 16th June, he was informed by some informer that two youngsters with a jeep are sitting in village Dawra at the house of Dhuda Ram where he went and both the accused were found with whom was vehicle RSM 9147 and on interrogation, Raju @ Munna stated that he obtained jeep 15-20 days back after killing driver. Hence, they were taken to police station from Page No. 10 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) where P.S. Raisinghnagar contacted on telephone and when informed, arrested both the accused and seized the jeep with which Registration certificate, Insurance policy and bill in favour of Deepak Kumar and a computerized driving licence of Tarsem Singh was also recovered. Dhuda Ram PW/7 states that his brother in law came alongwith both accused and then again brother-in-law came with accused who were having jeep and appellants mentioned that they sold their land and purchased jeep which will be driven by them on hire - afterwards, as per PW/7, it was disclosed that they had obtained the jeep after killing a person, so the villagers caught both the appellants and got them arrested. In cross-examination, he states that all this was stated to him by his wife and he himself not had any talk with accused. Wife of Dhuda Ram PW/7 is not among the witnesses. Seizure memo of vehicle is ex.P/3, witnesses of which are Constable Bhura Ram PW/10 who states that jeep was with both accused who borught to police station and Raju @ Munna states about commission of crime. Suffice it to say that this incident was of May 27th – jeep said to be found in possession on June 16th and evidence of Dhuda Ram PW/7 is as above. Similarly, alleged recovery of stephney, bag and pipe are also of 20.06.2000 i.e. 22-23 days after the incident. Without further going into the intervening time, significantly the place of recovery is below a small bridge on a public road. On the basis of this alleged recovery it may be very weak, in totality of circumstances, to link directly with Tarsem Singh. Only on the basis of Page No. 11 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) blood group A on the clothes and recovered pipe after 22 days, it cannot be certainly inferred, particularly taking into consideration other circumstances, that pipe is connected with the incident. As per prosecution, the first information regarding the body lying in the field was given by PW/11 Smt. Saraf Kaur who does not support the prosecution and as per her she did no go to her field nor she saw any dead body and even did not give any information to police. This witness PW/11 has totally denied her statement during investigation Ex.P/15 and also stated that no proceeding conducted before her and only her thumb impressions put at police station. Assuming that she is not telling complete truth, then it is of significance that as per PW/12 Bhajan Singh, his field is near the field of Saraf kaur and he did not see Smt. Saraf Kaur. PW/2 Charandas states that his field also is near the field of Smt. Saraf kaur and in the morning 7-7.30 when he was in own field Smt. Saraf Kaur and Sardarji came from 52 NP and went to the field of Saraf Kaur and he does not know who that person Sardarji was. PW/11 Saraf Kaur-who as per prosecution is the first informant -has not in any way supported the prosecution – As per PW/2 Charan Das also was one Sardarji and this narration altogether is not stated by anyone and any where. As per recovery memo, the jeep was found in possession of only one appellant - there seem s to be no definite evidence that appellant hired or some how related to jeep prior to finding of the body. Page No. 12 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) Between the incident and alleged recoveries, 20-25 days elapsed. As per recovery witness constable, the jeep was with both the accused. From the evidence of PW/7 Dhuda Ram, it is very hard to infer that jeep was definitely in possession of any accused. As per Investigating officer too, the information was that two persons are possessing jeep. It is apparent that regarding possession of jeep, only evidence is that of S.H.O. Raisinghnagar PW/17. Only on the evidence of this evidence and particularly looking to other evidence and circumstances as above mentioned, this is indeed neither safe nor can be accepted that jeep was in possession of both or any one of accused. As mentioned, the jeep is recovered after 18-19 days. So in our opinion, as the prosecution case is based on circumstantial evidence and on above established facts, certainly appears some significant missing parts of chain and links and solitarily on the basis of this recovery, it is certainly not safe to hold accused guilty. Now coming to the applicant Raju @ Munna. In course of arguments, learned Public Prosecutor candidly conceded that if in appeal, there is also straight case for acquittal/substantial benefit of another accused who could not prefer appeal due to poverty or like reason, then the Court is not debarred from giving benefit to co-accused also. Hon'ble Supreme Court in the case of Ajit Singh Vs. State of Haryana 1996(1) Crimes 146 (SC) has categorically held that when any co-accused could not prefer appeal due to poverty then still the benefit same as other accused may also be given to him. Here the appeal was preferred by Raju @ Jagdish whereas, there was another accused Raju @ Munna was Page No. 13 S.B. Criminal Appeal No. 777/02 (Raju @ Jagdish Vs. State) was also convicted and there was every possibility regarding some overlapping or confusion. Therefore, ends of justice will meet if application under Section 482 Cr.P.C. on behalf of Raju @ Munna is accepted in terms that this appeal No. 777/02 be also deemed and heard on behalf of Raju @ Munna. Accordingly, in above terms, the application under Section 482 Cr.P.C. is allowed and the present appeal is also heard on behalf of accused Raju @ Munna. Accordingly, the appeal deserves to be accepted for both the accused appellants Raju @ Jagdish S/o Shankar lal and Raju @ Munna S/o Ram Charan. Their conviction and sentence vide judgment dated 09.08.2002 passed by Additional District and Sessions Judge (FT), Anupgarh, Sriganganagar in Sessions Case No. 136/01 is set aside and they are acquitted of the charges of offences under Section 302/34 and 201/34 IPC. Accused appellants are behind the bars. They be released forthwith, if not required in any other case. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. bjsh