-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mishri Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.77/1986 against the judgment dt.6.1.86 passed by the Addl.Sessions Judge, Barmer, in Sessions Case No.4/1985. Date of Judgment: Nov. 12, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Suresh Kumbhat ) Mr.Sheetal Kumbhat) for the appellant. Mr.K.R.Bishnoi, Public Prosecutor. BY THE COURT : (PER THANVI J.) 1. This appeal is directed against the judgment of learned Additional Sessions Judge, Barmer dt.6.1.86 in Sessions Case No.4/1985, whereby he convicted the accused appellant Mishri under Section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.500/- and in default, to further undergo one year's R.I. Accused appellant was also convicted u/s.201 IPC and sentenced to undergo one year's R.I. -2- Both the substantive sentences were ordered to run concurrently. 2. Facts leading to this appeal are that Umed Singh son of Kishan Singh by caste Rajput r/o Adhrim Ka Tala, Distt. Barmer lodged FIR Ex.P.3 before the SHO, Police Station, Chohtan, Distt. Barmer on 23.3.85 at 3 PM alleging therein that on 1.3.85, his nephew deceased Ran Singh was with accused Mishri and in the evening at 5 PM, they returned and went to their respective `dhanis'. Deceased Ran Singh was having Rs.1820/- with him which he took as a loan from Mishri Meghwal. Deceased Ran Singh went to sleep at 9 PM and the next day morning, he was not found. His family members apprehended that he might have gone somewhere. The complainant Umed Singh and his nephew Bhanwar Singh were not at the house. On 5.3.85, when he and his nephew Bhanwar Singh came to the house, they came to know about the fact that deceased Ran Singh was missing for the last five days. Then they started searching. After 6-7 days, they came to know that accused Mishri and deceased Ran Singh had gone to Gujarat. Both were having illicit relations with Asiyat, d/o Safi. They went to the residence of Asiyat, who is -3- also resident of the locality. Though, initially Asiyat denied but later told in the presence of Ishwar Singh and Mool Singh that deceased Ran Singh was sleeping with her and accused Mishri killed him with axe and buried him in the compound of her house. Upon this report, the police registered a case u/s.302 & 201 IPC and commenced investigation. During investigation, the recoveries of `juti' (shoes), `kulhari' and `ban' (part of cot) were made from the accused appellant on the information furnished by him u/s.27 of the Evidence Act. After investigation, accused appellant Mishri and Asiyat, who made extra judicial confession before Ishwar Singh and Mool Singh, were chargesheeted in the court of learned CJM, Barmer u/ss.302/34 & 201 IPC. The case was committed to the court of learned Addl.Sessions Judge, Barmer, who after hearing the arguments on charge, framed charges u/ss.302 & 201 IPC against accused Mishri and for the offences u/ss.302/34 & 201 IPC against accused Asiyat, daughter of Safi. Both the accused pleaded not guilty and claimed trial. The prosecution examined 13 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced Tharu, DW 1 in their defence. After hearing the final arguments, the learned trial Judge -4- accquitted accused Asiyat for the charges levelled against her but convicted & sentenced the accused appellant Mishri as above. 3. We have heard learned counsel for the appellant as well as the learned Public Prosecutor and re-appreciated the evidence brought on record. 4. It is contended by the learned counsel for the appellant that there is no dispute with regard to homicidal death of deceased Ran Singh but his conviction u/ss.302 & 201 IPC is based on no evidence, which is liable to be set aside. He submits that there is no eye witness in the case and the matter has been reported to the police after 23 days of the incident solely on the basis of extra judicial confession furnished by co accused Asiyat, who has been acquitted by the learned trial Court. According to the learned counsel, the finding of the learned trial Judge with regard to the guilt of the accused is against the settled principles of appreciation of evidence with regard to the circumstances. As in the present case, the recovery has been made from the open hut of the accused and the prosecution has not been able to prove as how the -5- `juti' were belonging to the deceased and as to how the parts of Cot reached from the house of co-accused Asiyat to the hut of accused Mishri. This major suspicion which de-links the circumstantial evidence, leads to the conclusion that accused appellant has been falsely implicated in the case for which the prosecution has not been able to give satisfactory explanation. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. When the homicidal death is unquestionable, then the question which comes up for consideration before this Court is as to who is the author of causing homicidal death. There is of course no direct evidence connecting the accused appellant with culmination of the crime but the case is based on circumstantial evidence. When the case is based on circumstantial evidence, then it is settled principle of Criminal Law that every chain of circumstances should be established without any iota of suspicion resulting in guilt of the accused. 7. Whatever evidence has been brought on record, -6- firstly the prosecution has not been able to prove the explanation of lodging the FIR after 23 days of incident. Normally, the delay is not fatal in criminal trial but if that delay is not explained properly then the evidence brought on record has to be measured in the light of the statements resulting in how much trustworthy they are. If there is no direct evidence with regard to the scene of the crime, then the circumstances must be so established that they leave no doubt for de-linking the evidence of circumstances with each chain. From the perusal of the FIR and the statements of the witnesses, it is revealed that on 1.3.85, deceased Ran Singh and accused Mishri went to their respective `dhanis' and on the next day morning, deceased Ran Singh was not found in the house but his family members did not enquire as to where he had gone for five days, till his real brother Bhanwar Singh and the complainant Umed Singh, uncle of deceased, reached at the `dhani'. That apart, the informant Umed Singh, PW 3 has also stated in his examination in chief that he searched for deceased Ran Singh for about 20-22 days in Gujarat, if these days are counted with earlier five days, then it comes to more than 25 days and after these 20 to 22 days, it is stated by this witness that one day -7- thereafter, he alongwith Moola, Ishra and Bhanwara went to the `dhani' of Asiyat and enquired about Ram Singh. Then Asiyat made the extra judicial confession. In our opinion, this delay is not properly explained by the prosecution. The FIR could have been lodged of missing, when Umed Singh and Bhanwar Singh came to know on reaching at the house of deceased Ran Singh that he has been missing for the last 4 to 5 days. This unexplained delay is fatal to the prosecution. 8. Next is the evidence of recovery of `juti', `kulhari', parts of Cot and clothes of deceased Ran Singh, found on the dead body, which ofcourse were found stained with human blood but their blood group has not been determined in the FSL Report. In addition to it, the recovered `juti' have not been sent for chemical examination and Incharge Malkhana Kishore Singh Head Constable, PW 6 has stated that when he received `juti' vide Ex.P.12, they were not in the sealed condition. Though the test identification parade has been conducted by Tehsildar Amar Singh, PW 2, but he has not been able to answer as to what was the shape of `juti' and also whether it was made of leather or of some other material. Likewise, panch witness Khet -8- Singh, PW 7 has not been able to answer as to from where, the `juti' was purchased. In addition to this recovery of `juti', the recovery of `kulhari' has been made, which every farmer keeps in the house and moreover, this recovery is from the open place as appears from the site plan Ex.P.21, wherein the site of `dhani' of accused Mishri has been given and at point `2', wherein hut has been shown as without door. Same is with regard to the `ban' i.e. part of the Cot, which was recovered vide Ex.P.8 on the information of accused Mishri Ex.P.22. According to this recovery memo and the statement of the investigating officer, `ban' i.e. part of the Cot was recovered from the open `dhani' of accused Mishri but Bhanwar Singh, PW 5, who is panch witness of this article vide Ex.P.8 has stated in the examination in chief that this cot was recovered from the house of co-accused Asiyat. This is a major contradiction with regard to the recovery of `ban'. Such type of contradictions and infirmities cannot form the basis of conviction, when the case is solely based on circumstantial evidence. 9. As discussed above, the present case is not only fatal to the prosecution on account of delay in lodging -9- the FIR but also un-trustworthy, especially the evidence of recovery for which the learned trial Judge has not given cogent reasons to arrive-at the conclusion of guilt. Merely because the human blood was found on the recovered articles, is not sufficient to link the accused appellant with the commission of the crime, especially when the blood group has not been determined. In view of the above discussion, we are unable to agree with the finding of the learned trial Judge with regard to the guilt of accused appellant. 10. Consequently, we allow this appeal, set aside the judgment dt.6.1.86 passed by learned Addl.Sessions Judge, Barmer convicting appellant Mishri of the offence u/s.302 IPC & sentencing him to undergo life imprisonment alongwith a fine of Rs.500/- & in default, to further undergo one year's R.I. & also of the offence u/s.201 IPC with one year's R.I. and acquit him of the said charges. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS