1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRML LEAVE TO APPEAL No. 249 of 2008 STATE V/S RAM RATAN & ANR. Mr.AR NIKUB, PP, for the appellant / petitioner Date of Order : 8.4.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. ORDER ----- Heard learned Public Prosecutor. Perused the impugned judgment and record. The case of the prosecution is based on circumstantial evidence. Learned Public Prosecutor submitted, that the circumstances, against the accused, are (i) the deceased having been last seen in the company of the accused; (ii) recovery of the dead bodies of two deceased viz. Kalu Ram and Nimbudi on the information and at the instance of the accused under section 27 of the Evidence Act and; (iii) recovery of the weapon of the offence being axe on the information and at the instance of Ram Ratan under section 27 of the Evidence Act. We have considered the circumstances. Regarding 2 the evidence of last seen, the prosecution relies upon the evidence of PW. 4 and PW. 19 being Nanu Ram and Bajrang Lal respectively, according to whom, deceased Kalu Ram was last seen with five persons being Naeem Khan, Ajay Makad, Pawan, Ram Ratan and Bhania, while the prosecution has filed the charges only against Ram Ratan. Thus, it cannot be said, that even according to the prosecution witnesses, the deceased was last seen only in the company of both the accused or either of the two accused-persons. Then so far as deceased Nimbudi is concerned, evidence of last seen comprises of statement of PW.6 Jabbar, who is non-else, but the brother of deceased, and according to him, Kalu, Ram Ratan and Monika came to his house and gave out, that they are going out for 5-7 days and shall return Nimbudi. It is also stated, that these persons came to his house on the day following Moharram. Learned Public Prosecutor informs that Moharram was on 31.1.2007. If this witness is connected with PW.4 and PW.19, it is clear thereafter, that Ram Ratan and Kalu Ram, in the company of many more persons and other accused, Monika was not seen with them nor Nimbudi was seen as according to PW.4 and PW.19 they had seen the deceased Kalu Ram with five other persons on 6.2.2007. Then secondly, according to PW.6, along with Kalu Ram and Ram Ratan, one Monika was there, and he had not identified the accused present in the Court to be a lady, who had come to his house on that day. The statement of this witness was recorded on 21.9.2007, and the order- 3 sheets of the Court recite that both the accused-persons were present in the Court on that day in judicial custody. Thus, in our opinion, this evidence of last seen does not inspire confidence. Then so far as recovery of dead bodies is concerned, sequence of things are very significant, inasmuch as, both the accused-persons were arrested on 12.5.2007 at 8.30 a.m. and 8.40 a.m. respectively; while the information memos, said to have been given by them being Ex.P/77 and P/78 are of the same day at 9.00 a.m. and 9.15 a.m. respectively. Thus, the accused-persons were arrested after more than three months of the incident, and it is very difficult for us to accept, on the face value, that two accused-persons would be so ready and willing to offer the information, practically immediately on the meeting of police itself, within half an hour of the arrest. This is one aspect, casting doubt about the genuineness of information. The other important aspect is, that information of both the accused-persons is verbatim reproduction. Then according to the information, the dead bodies of both the deceased were concealed by both the accused-persons at the same place, which they volunteered to get recovered. As against this, look at the recovery memos being Ex.P/10 and Ex.P/4 shows, that the dead body of Kalu Ram is recovered on the same day at 2.30 in the noon vide Ex.P/4, while the dead body of Nimbudi is recovered on 4 13.5.2007 vide Ex.P/10. It is significant to note, that in Ex.P/10, time of recovery is not disclosed, whereas in Ex.P/4, time has been given. Investigating agency has prepared site plan of the place where from, two dead bodies were recovered being Ex.P/5 and Ex.P/11 respectively and a look at them makes it clear, that bodies were recovered from the same cesspool. If the accused-persons even collectively had concealed two dead bodies, both could and should have been recovered on 12.5.2007 itself. Thus, it clearly appears, that the dead bodies were not recovered pursuant to and consequent upon information given by the accused-persons. Then remains the circumstance of recovery of weapon being “Kulhari”. Information memo in this regard is Ex.P/81, which is by accused Ram Ratan only, and the recovery memo is Ex.P/13. The “Kulhari” has been marked with letter 'E' and FSL report does show that blood group 'B' has been found on this “Kulhari”. 'E' mark as well as 'A', the garments of the deceased, marked as 1 and 2 by FSL, were also found bearing the same blood group 'B', but this is not a circumstance against other accused Sushila, and since the case of prosecution rests on circumstantial evidence only, mere recovery of weapon, said to be the weapon of offence, after such a long time, and delay of six days even from the date of arrest, cannot be said to be such conclusive circumstance, on the basis of which, it can 5 be said, that it conclusively establishes the guilt of the accused, and also negatives the innocence of the accused on all reasonable hypothesis. While also agreeing with the finding arrived at by the trial court, we find no force in this petition for leave to appeal. The same is, therefore, dismissed. ( C M TOTLA ),J. ( N P GUPTA ),J. /m.asif/-