1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Anand @ Kania &Anr. vs. The State of Rajasthan D.B.Cr.Appeal No.1265/2003 Under Section 374 Cr.P.C. against the judgment dated 07.11.03 passed by the Addl.Sessions Judge, (Fast Track), Rajgarh, in Sessions Case No.06/2003 (38/2002). ....... Date of Judgment: 23rd January, 2008 PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.V.K.Sharma for the appellants. Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT: (PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal is filed by the accused appellants, against the decision of the court of Addl.Sessions Judge (Fast Track ) Camp Rajgarh, Distt.Churu, in Sessions case No. 86/ 2003 (38/2002) dated 07.11.03. 2 The prosecution was initiated on the basis of a first information report lodged by Sonu Jangid, at police Station Rajgarh on 21.08.02 at about 08.15 AM. In the written report, it was stated that his father Chhaganlal, at about 05.45 PM, went out of the house, escorted by Kishan Lal Soni , who was to go to Hissar. Next morning, i.e. On 21.08.02, his dead body was found in Gumani Jori (a pond) on Pilani Road. There were various injuries on the person which suggested that his father has been murdered. On the basis of such information, FIR No.262/2002 was registered under section 302 IPC. After the lodging of the first information report investigation was conducted. The accused were arrested and a charge sheet was filed against them. The accused appellants were charged under section 302/34 IPC which they denied and claimed trial. At the trial, prosecution examined 25 witnesses and produced 47 documents and in their statement under Section 313 Cr.P.C. , the accused appellants stated that there was animosity in between the accused and the prosecution witnesses, therefore, a false case has been concocted against them. In defence, 5 witnesses were examined and 6 documents were exhibited. 3 The prosecution was not supported by any direct evidence and the case was made out only on the basis of circumstantial evidence. Circumstances which where were pressed into service against the accused persons were, in the nature of last seen and certain recoveries. The recoveries included the clothes of the accused and an ice breaking implement, in the nature of a borer. These things were found blood stained , though blood group was not available on all the implements , except the clothes. The case of the prosecution was that deceased, along with the two accused appellants and one accused, namely, Vijay @ Peeliya, whose investigation was kept pending under section 173 (8) IPC. Basically, the prosecution has produced two types of witnesses, one showing that in between 7 and 8.30 PM the accused , deceased and one more person , were seen moving around on a motor bike. The other evidence is that one of the accused Vinod purchased 2 bottles of liquor. It is suggested that the accused consumed the liquor, along with the deceased and then quarreled and in that quarrel killed the deceased. The learned trial court believed the prosecution case and convicted the accused appellants under section 302/34 IPC and 4 sentenced them to life imprisonment and a fine of Rs.1,000/-. The learned counsel for the appellants , arguing the appeal, submitted that there being no direct evidence available, the case of the prosecution is based on conjectures. The best witness , with whom admittedly the deceased left the house was Kishan Lal, whom he escorted to visit Hissar. Kishan Lal could have spoken as to what actually happened when they parted . This important link is missing. Another aspect is that the witnesses have spoken about the accused and the deceased being together on motor bike from 07.00 to 08.30 PM This is the time which do not correspond to the time of death of the deceased. The post-mortem report suggest that the man had died within six to 24 hours. This is too vague and an indefinite time period that it cannot be said to be corresponding to the time when the accused were along with the deceased, i.e. 07.00 - 08.30 PM on 20.08.02 . According to the post mortem report, the death was within six to 24 hours which is a very flexible time period and if it is taken to be 6 hours then at 12 noon on 21.08.02 post mortem was conducted. The death could be of early morning, which is not the case of the prosecution. Apart from last seen, the other witnesses speak of the 5 recovery of the clothes and weapon of offence. The weapon of offence is said to have been recovered from the pond , a place which is open to all and sundry. Therefore, any recovery from the pond, which is a catchment area, cannot be said to be of the exclusive possession of the accused Anand, from whom it is said that the weapon was recovered. This is also on record that weapon of offence, was seen by the side of the deceased, when body was first spotted. In that view of the matter, the recovery of ice breaking implement , cannot support the prosecution case. Further , during the course of investigation, certain witnesses were examined more than once. The case was adjourned to provide the further statement of these witnesses, while PW/4 Karan Singh was examined. But later on ,the stand was taken by the prosecution that the witnesses were not examined more than once, therefore, no statements were given. Thus a false evidence has been taken by the prosecution, because the witnesses in their examination stated that they were examined more than once. Once the witnesses stated that they were examined more than once, further most of the witnesses have turned hostile. The statement of the witnesses, as examined at the investigation stage, prejudices the case of the prosecution and provisions of Section 162 6 Cr.P.C. vitiated the trial. Per contra, the learned Public Prosecutor urged that the accused were seen moving on a motor bike along with the deceased. The recoveries established that blood of human origin of 'O' group, was found on the recoveries and therefore, the case is amply proved. We have heard the learned counsel for the parties and have given our thoughtful consideration to the material available on record. The first and the foremost aspect of the prosecution case is the evidence of last seen. The witnesses , as examined , state that around 07.00- 8.30 PM accused and the deceased were seen together. It was not only the two appellants but also another accused, who has not been charge sheeted and investigation against him under section 173 (8) IPC has been kept pending. He was not brought to book. He was also an accused who was last seen as alleged by the witnesses. If one accused is left out, then the whole edifice as built by the prosecution, falls to the ground. What is important is that defence witnesses have stated 7 that these persons were seen with out the deceased later in the night and the testimony of these witnesses, have been brushed aside by the trial court by saying that they are interested witnesses. Simply because they are interested witnesses, brushing aside their testimony is not a judicious approach. The defence witness has been at par with the prosecution witnesses and if at later stage the witnesses have seen the accused , without the deceased and the point of time when the deceased had died has not been established conclusively, then the evidence of last seen loses importance so much so that one of the witnesses of the prosecution states that at about 10-10.30 in the night accused Anand came to him and took another half of the liquor bottle . At that time the deceased was not with him. Thus, this only suggest that the parties have parted by the time Anand came to fetch another bottle of liquor at about 10-10.30 PM. Thus, there is no clear evidence that just before death, the accused was in the company of the deceased. The prosecution case further weakens on the ground that the prosecution witnesses have stated categorically in the court that they were examined thrice by the investigation agency. For getting those statements, the case was once adjourned also while PW/3 Guljhari Lal was being examined and the said statements were not 8 found on the file, then such witnesses who state that they were examined more than once and their statements are not found on the file, then this only suggest that the investigation is tainted. Recoveries do not indicate the correct nature of the prosecution case and shows fabrication. The circumstances pressed into service are considered by us to be lacking in making a complete chain, so as to unfailingly hold that the accused ware guilty of the charges levelled against them. Since complete chain is not made out, we are not convinced that the prosecution was not good enough, to bring home the case against the accused persons. The appeal of the accused deserves to be allowed. They are entitled to benefit of doubt. In the result, the appeal of the accused appellants is allowed. The accused appellants Anand @ Kania s/o Lichhman Ram and Vinod @ Sundia s/o Om Prakash are acquitted of the charges levelled against them. Their conviction under Sections 302/34 IPC is set aside. Consequently, their sentences are also set aside. They are behind the bars, they be released forthwith, if not required in any other case. (BHANWAROO KHAN), J. (BHAGWATI PRASAD), J. L.George