1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT BABU LAL & ANOTHER. V. THE STATE OF RAJASTHAN D.B. CIRMINAL APPEAL NO.852/2003, under Section 374 (2), Cr.P.C., against the judgment dated 9.7.2003, passed by Shri K.K. Bagri, RHJS, Additional Sessions Judge (Fast Track) No.2, Pratabgarh, Camp at Nimbahera in Sessions Case No.115/2003. DATE OF JUDGMENT: JANUARY 30, 2009 PRESENT HON'BLE MR. JUSTICE N. P. GUPTA HON'BLE MR. JUSTICE C. M. TOTLA Mr. Bhagat Dadhich for Mr. Mridul Jain) for the appellants. Mr. Niranjan Singh for Mr. M. K. Garg ) Mr. J.P.S.Choudhary, PP, for the respondent. BY THE COURT: (PER HON'BLE TOTLA, J.): Assailed in this appeal are convictions and sentences as per judgment dated 9.7.03 by learned Additional Sessions Judge, Nimbahera in Sessions Case No.115/03-of (1) Appellant Babulal for the offence of Section 302 read with Section 34 and Section 120-B, IPC - sentence to life imprisonment and fine Rs.5,000/-, in default six months' simple, for Section 201, IPC five years rigorous imprisonment and a fine Rs.1000/-, in default one month simple (2) Appellant Devilal for the offence of Sections 120-B (read with 302) IPC, - sentence life imprisonment and a 2 fine Rs.5,000/-, in default six months' simple imprisonment. Accused Keshu Ram and Logar are acquitted vide above judgment. Appellants request their acquittal. Brief investigational facts, as per prosecution, post-incident, are that on 8.2.99, at 7.15 P.M., one Vijay Singh submitted a written report Ex.P1 at Police Station, Nimbahera, informing that he and his cousin brother Dharm Chand live with their families in separate houses at village Binota – in the evening of 7th at 6 p.m. daughter of Dharm Chand told him on telephone that her father had not returned who had gone to Bhagwanpura on Motor Cycle, so he (Vijay Singh) along with Mangilal, Shaukin Kumar, Jaswant Kumar and Gajraj went to search Dharm Chand on 8.2.99 and at village Bhagwanpura, out of godown of brother Dharm Chand, found is his motor cycle, but whereabouts of Dharm Chand are not known – requested for search of Dharm Chand. This report was taken down in 'Roznamcha' Entry No.498 Ex.P75, and matter entrusted to A.S.I. Ratan Singh. On next day on February 9th, as per Ex.P36 (73) ('Parcha Kaymi' that is memo of registration of case prepared by SHO on 11.2.99 in village Dhikiya) from ASI Ratan Singh, matter was taken by SHO himself and, in course of inquiry from Shambhu Singh PW 3 s/o. Khem Singh r/o. Bhagwanpura, SHO came to know that on February 7th, 99, Babulal hired his jeep No. CPU 7344 and around 8 - 8.30 in the night, Babulal and his labours Logar and Baldevram carried an iron sheet telling the drum - contained wheat to be given to labours at Dhikiya – the drum was alighted from the jeep on way near field of Logar – making 3 Shambhu Singh sit at the house of father Logar and on excuse of responding to call of nature, all three Babulal, Logar and Bagdi Ram remained away for about 1.30 hours – when came back near the jeep – the drum was not there and on asking by Shabhu Singh, Babulal told that Logar and Bagdiram shall deliver it afterwards. As per this report, FIR Ex.P73 – on further inquiries at village Bhagwanpura and Binota, it was revealed that on February 5th between Babulal and Dharm Chand occurred some hot exchanges for money transactions between them and then carrying such drum by Babulal causes suspicion. Statements of Shambhu Singh were recorded and SHO going with Shambhu Singh taking Amar Singh and Ashok Kumar with them-at the place shown by Shambhu Singh - in village “Dhikiya Bodo ka Fala” where the drum was taken down from jeep as per Shambhu Singh and when search made around their they found a dry well-from where emitting was bad odour and freshly cut branches and leaves of teak tree which were removed and below was found a dead body face down wards. The dead body was of Dharm Chand, so calling photographer, photographs taken – body taken out - which was almost completely severed from neck and also were injuries on left hand with blood on cloths – inferring incident case registered-as the body found to be concealed there by Babulal and Bagdiram after killing. On the basis of Ex.P73, formal FIR No. 68/99 Ex.P71 registered at police station – positives of photographs are Exs.P2 to P9. 4 In course of investigation (1) inspection of spot and finding of corpus as per disclosures and indication of Shambhu Singh, memo– Ex.P13 prepared 11 a.m. on 11.2.99 - site plan Ex.P14. (2) A 'paal' (plastic empty bag of fertilizer) which was lying below the body seized and sealed – packet marked as 'S' – memo Ex.P15 at 3.30 p.m. on 11.2.99. (3) In the pockets of shirt and pant of deceased found Rs.95/-, several papers along with a pocket diary pen and handkerchief etc. which seized and sealed – memo Ex.P16 at 3 p.m. on 11.2.99 and packet marked 'A'. (4) Cloths on the person of deceased shirt, Baniyan, Jersy, pant, underwear and socks soaked in blood seized and sealed – Ex.P23 6 p.m. on 11.2.99, between 4.30 to 6.00 p.m., post-mortem conducted – report Ex.P35 – neck was almost severed and incised wounds on left palm, left writs and a lacerated wound on scalp. Death occurred within 4 to 5 days. On February 13th, appellant Babulal arrested vide memo Ex.P25 at 1.45 p.m. and (1) on 13.2.99, at 2.00 p.m.- disclosure of Babulal Ex.P76 that (a) shirts weared by him are concealed in 'Khakhla' and 'Karap', (b) a 'Bahi' on a leaf of which signature of Dharm Chand was obtained and a diary of 1999 containing names of labour etc. are concealed in a box lying at “Keluposh” room of his Nohra, © also can indicate place of incident along with recovery of cloths and 'Bahi'. (2) At the instance of Babulal, preparing memo Ex.P80 site of alleged incident of his (Babulal's) home Nohra inspected at 3.45 p.m. - place was of 122 x 5 55 ft having a 'kachcha' semi-open construction 74 x 16 ft with one side wall of 19' and on other side was a wall of 3.5 ft. -memo Ex.P18 - on this wall of 3.5 ft height were some blood stains and also were some blood stains at 'kachcha' floor – same of blood like material from wall taken and sealed – packet marked 'H' memo Ex.P-16 at 6 p.m. (3) At 5.30 p.m., at the instance & disclosure of Babulal from room lying in a box are recovered a diary which was having some money lending entries - having 49 pages - 19th page was half torn and as per Babulal, on the half portion of this paper were obtained signatures of Dharm Chand – recovered are (a) a diary of the year, 1999, having names of certain labours, including Logar, Bagdiram and Kesharam etc. with some entries and description of some work – which were seized and sealed packets respectively marked 'E' and 'F', (b) at the instance of accused Babulal from below 'Khakhla' lying in his compound recovered a shirt and 'dhoti' having few blood stains – which seized and sealed – packet marked as 'G' and memo is Ex.P15 – impression of the seal used separately made Ex.P22, (c) the place was photographed at 3.30 p.m. - memo is Ex.P20 and photographs along with negatives are Exs.P37 to P-55 – blood like sample from weight soil of Nohra taken and sealed packet marked 'C' and plain soil packet marked 'D' – memo Ex.P68 at 4.30 p.m. (4) On 15.2.99, at 7.30 a.m., Babulal allegedly disclosed that on torn away paper of 'Bahi' were obtained signatures of Dharm Chand just prior to incident which paper given to Devilal - memo Ex.P79. (5) Babulal on 16.2.99, at 10.00 p.m., disclosed that he, Logar and Bagdiram having carrying out the plan 6 chalked out by Devilal killing Dharm Chand and putting his body in drum – carrying it in a jeep to field and hut of Logar have dropped the body in dry well concealed it by tree, branches and leaves which place can be shown by him – memo prepared is Ex.P78 and at the instance of Babulal, the site with well and surroundings inspected on 17.2.99 – memo is Ex.P27. (6) On 22.2.99, at 10.05 p.m., Babulal informed that pen from which Dharm Chand made to sign is lying in stones near his well – memo is Ex.P77 - a ball pen recovered at the instance of Babulal on 24.2.99, at 4.15 p.m., seized and sealed packet marked as 'L' – memo is Ex.P30. (7) Also as per information and disclosure of Babulal made on 22.2.99, at 9.30 a.m., Ex.P77 at his instance recovered Rs.11,200/- from a “peti” lying in his house at village Bhagwanpura – memo of recovery is Ex.P29 – seized and sealed packet marked 'J'. Accused-appellant Delvilal arrested on 15.2.99 at 8.50 p.m. vide memo Ex.P56 and (1) on 17.2.99, at 6.15 a.m., Devilal disclosed that entry of payment of Rs.20,000/- to Babulal on 7.2.99 is in diary of 1999 on the date of February 7th and also a stamp of purchasing 'Bara' from Babulal for Rs.40,000/- are in iron box lying in his residential house – memo of information is Ex.P82. (2) At the instance and as per information of Devilal, from his house at 9.10 a.m., from an iron box lying in room of his house recovered a diary having entry of payment of Rs.20,000/- to Babulal and also payment of Rs.10,000/- to Dharm Chand on 7.2.99 – diary seized and sealed packet marked 'I' memo is Ex.P26 – stamp paper also recovered seized and sealed – memo is Ex.P69. (3) On 7 22.2.99, Devilal disclosed that he purchased 17 biswas of land from Babulal s/o. Bhakar, but revenue record was in the name of Ratanlal, so document executed and registered in his favour is with Patwari for mutation memo is Ex.P83 and at the instance of Devilal, the registered document-presented by Patwari Jagdish Lal-seized-memo is Ex.P31. (4) On 24.2.99, at 2.00 p.m., Devilal informed and disclosed that blank paper bearing signatures of Dharm Chand given to him by Babulal is after folding, is lying in between the “Daraj” (narrow space in between) of door and wall of his home – memo of information is Ex.P81. (8) At the instance of Devilal on 24.2.99, at 3.10 p.m., recovered from is “Daraj” of door of his house, is a paper of 'Bahi' bearing a signature in the name of “Dharm Chand Mohnot” which marked 'K-1' seized and sealed packet marked as 'K'. In course of investigation, (1) Jeep CPU 7344 in possession of Shambhu Singh seized in presence of Babulal on 13.2.99 at 8.00 p.m. (2) All the seized packets kept in safe custody and relevant entires are Exs.20, 59 & 60 and six packets of cloths having blood etc. delivered at FSL forwarding letter to S. P. is Ex.P90 and FSL receipt Ex.P58. Documents also forwarded to expert for examination on February 21, 1999. (3) Complainant Vijay Singh submitted 'Bahi' of Dharm Chand – from which page 14 'Khata' of the name of Babulal taken – memo prepared is Ex.P25. (4) On 3.5.99, Vijay Singh delivered papers bearing writing and signature of Dharm Chand which are some statements relating to grain and commodities trading licence of and submitted by 8 Dharm Chand - these documents bearing undisputed signatures seized and sealed – packet marked 'Y' and memo is Ex.P24. (5) For comparison on 11.4.99 before Deputy Superintendent of Police, writing from the ball pen recovered on the information of Babulal procured and pen re-sealed packet marked as 'Z' and memo is Ex.P57. Further, in course of investigation, other accused Keshuram arrested on l3.4.99 and, on his information, site inspected and Rs.700/- seized – memos of which are Exs.P32, 33, 35, 86 and 87. On 20.2.2000, Logar arrested and on his information, site inspected and as per his information-Ex.P97-drum and a sword recovered from his at his instance – memo of which is Exs.P98 & 99. Charge-sheet presented against appellants and Keshuram @ Panchiya. It seems that on arrest of Logar, charge-sheet presented against him is amalgamated with this sessions case on 1.6.03. As per FSL serological report Ex.P93 on all the cloths and samples of blood like material taken, was human blood - on the recovered cloths of Babulal and of deceased, was group 'A' blood. As per handwriting expert report Ex.P33, signatures, on paper recovered at the instance of Devilal and signatures on the documents presented by Vijay Singh purporting bearing signatures of Dharm Chand are of one and the same person and that signatures on this paper tally with the ink of specimen writing written of the recovered ball pen. Prosecution examined 33 witnesses. 9 Appellants when examined under Section 313, Cr.P.C., either denied or stated ignorance without any specific averment. Learned Sessions Judge as per judgment dated 9.7.03, findings appellants guilty sentenced them as above. This Court during pendency of appeal accepting prosecution's application under S. 319 Cr.P.C., vide order dated 9.4.07 directed that trial Court shall summon the aforesaid two witnesses namely Ajay Sharma, Senior Scientific Officer, FSL, Jaipur and Smt. Manjushree Kapoor, Assistant Director, FSL, Jaipur for recording their statements and after recording of statements under Section 313, Cr.P.C., shall frame a question on the basis of the statements of these two witnesses. After recording the statements, the same along with the record of the case be sent to this Court. Following directions in this appeal as per order dated 9.4.07 are examined by trial Court Ajay Sharma PW 36 and Smt. Manjushree Kapur PW 37, both handwriting experts who have also proved their report Ex.P92. Appellant's regarding evidence of these two witnesses, also further examined under S.311, Cr.P.C. Of the 35 prosecution witnesses examined, Vijay Singh PW 2 is cousin brother of deceased who lodged FIR, Vandna PW 5 daughter and Smt. Uma Devi PW 10 w/o deceased. Jaswant Kumar @ Jaswant Singh PW 7, Shaukin PW 8, Amar Singh PW 9 and Mangilal PW 11 are the persons who allegedly went with PW 2 Vijay Singh for search of deceased. 10 Bihari Lal PW 1 states about going of deceased to house of Babulal on the day of incident. Ibrahim PW 4, Ashok Kumar PW 6, Nemi Chand PW 12, Prakash Chandra PW 13, Parasmal PW 14, Bherulal PW 16, Shanker Lal PW 17, Kailash Chandra PW 20, Vimal Kumar PW 21 and Sunil PW 25 are 'motbirs' of various Panchnamas, recoveries etc. and of them, Ratan Lal PW 26 is declared hostile. Of Shambhu Singh PW 3 jeep driver was the jeep hired and taken, who allegedly disclosed carrying drum as above and also states about confession (extra-judicial) of Babulal. Kalu ram PW 30 is a hotelier, on way, where persons going in jeep had their meals. PW 37 Giriraj Prasad Sharma, SHO, is investigating officer who deposes about entire investigation as above, whereas Ratan Singh PW 27 ASI is the person to whom missing report was handed over for inquiry. Narain Singh PW 31 ASI on receipt of Ex.P73 registered formal FIR Ex.P71. ASI Mani Kant Sharma PW 32 relates to information of Babulal of having 11200 with him and S.I. PW 19 Bhanwar Singh was at site when body was taken out from the well. PW 18 Bherulal and PW 25 Sunil are the photographers - Aziz Khan PW 22 Head Constable, Ramesh Chand Constable PW 23 pertain to keeping of sealed articles safely and delivering packets at FSL. Before the Deputy Superintendent of Police Bhagwan Singh PW 34 specimen writing Ex.P57 of ball pen was recorded and PW 35 Dalpat Singh, the then SHO, relates to arrest of Logar and recoveries on his information and at his instance. Dr. Puran Singh PW 15 with Dr. Virendra Kumar PW 24 performed 11 post-mortem and proves report Ex.P34. Shri Govind Agrawal PW 28, Judicial Magistrate, in course of investigation, recorded statement Ex.D-5 of Shambhu Singh PW 3 under Section 164, Cr.P.C. Articles 2, 3, 4, 12, 13 and 14 are cloths of deceased Article 20 handkerchief of deceased with seized pen and Rs.95/- - Art. 15 and Art. 16 are shirt and 'dhoti' recovered from Babu Lal – Art. 19 diary, Art. 27 'Bahi', Art. 6 agreement, Art. 8 Rs.1,200/- allegedly recovered as per information of accused Babulal – Arts. 17 and 18 are samples of blood and soil taken at the time of site inspection at the instance of Babulal – Art. 5 diary, Art. 7 the torn paper and Art. 10 a registered document are those allegedly recovered on information of Devilal, Art. 27 - Rs.700/- recovered at the instance of Keshu Ram - Arts. 28 & 29 sword and drum recovered on the disclosures of Logar, Art. 22 is specimen writing taken of the recovered ball pen and Arts. 23 to 26 signatures purporting by specimen of Dharm Chand. Also amongst the recovered articles are documents (1) Art. 6 – agreement dated 6.5.98 by Babulal s/o.Bagu Gayri in favour of Devilal s/o. Ratanlal (appellant) – mentioned in this document also is that half of this total land of eastern side stands sold to Dharm Chand. (2) Art. 10 – registered sale-deed dated 13.1.99 executed by Ratanlal s/o. Gokul in favour of Devilal S/o. Ratan Lal – described is that half of eastern portion belongs to Dharm Chand to whom already sold. (3) Art. 7 – a piece of paper about 7-8” x 6-7” - said peace of paper torn away from 'Bahi' bearing signatures of Dharm Chand. 12 When again examined under Section 313, Cr.P.C. - subsequent to statements of experts PW 35 and PW 36 – appellants stated that (1) FSL report after examination of 19 witnesses, (2) notes of examination by expert are not produced, so they could not cross-examine (appropriately) witnesses, (3) recovered paper piece is in such folds which cannot occur if kept in 'darar' of wall, (4) photographs & notes prepared by experts not produced, (5) all members of family live at the place allegedly the paper is recovered, (6) ball pen and 'Bahi' not recovered from Babulal. In defence, no evidence led. The learned Sessions Judge concluded for appellant Babulal that (1) on 7.2.99, deceased went to Bhangwanpura towards the residence of Babulal for receiving money from him - thereafter, never seen alive, (2) deceased and Babulal had money transaction and unpleasant exchanges between them in last 2-3 days, (3) Jeep of Shambhu Singh PW 3 hired by Babulal on 6.2.99 for evening of 7.2.99, (4) on 7.2.99, drum carried in the jeep and near the place drum was taken down from jeep, is found dead body of deceased, (5) Babulal accepted guilt before and to Shambhu Singh – extra-judicial confession, (6) blood stains found at and on wall of the place shown by Babulal are proved to be of human blood, (7) blood on recovered cloths of Babulal and on cloths of deceased are of 'A' group, (8) Rs.11,200/- recovered at his instance with no explanation, (9) On his information, recovered 'Bahi' with a half torn away leaf which recovered from Devilal and have signatures of Dharm Chand, (10) Writing of pen recovered from Babulal and on torn paper by same ink. 13 For Devilal, concluded that (1) on his information, recovered is the piece of paper torned away from 'Bahi' – as also was stated by Babulal, (2) Writing on this torned away paper of 'Bahi' is of the pen recovered at the instance of Babulal, (3) On recovered piece of paper are signatures of deceased Dharm Chand, (4) In the diary, recovered at his instance, is entry of payment of Rs.20,000/- to Babulal on 7.2.99, (5) Rs.11,200/- recovered from Babulal is not explained by any of them. Learned counsels for the appellants, extensively reading and drawing our attention towards statements of witnesses, with findings and observations in judgment, argued that any above finding is not proved. Learned counsel for Babulal citing and comparing many parts of evidence of different witnesses and alleged circumstances argued that (1) evidence of Shambhu Singh PW 3 not at all reliable – (a) there was no reason for him to ask anything to Devilal, (b) Devilal met him at 'Chauraha' and then making confession is too much a coincidence to be believed, (c) sustained efforts of Shambhu Singh to inquire Devilal about drum and alleged confession that too while riding on motor cycle cannot be accepted and if so grave suspicion about himself (d) if Shambhu Singh had any reason to suspect, he could have outrightly in late night of 7th taken appropriate steps (like informing authorities or others), (e) strangely, while returning, the jeep was hired by others for visit to Mandsaur and Devilal too continuing in the jeep visited Mandsaur till next day, (f) as per Shambhu PW 3, he informed about it in late evening of 9th to Vijay Singh, whereas as per Vijay Singh, he came to 14 know of happening by early day, (g) as per PW 5, the daughter of his cousin PW 1 informed him of involvement of Babulal etc. at noon; (2) any exchanges of words regarding purchase of 'Bara' on 5th or on any other day is not believable – does not find mention in statements taken in course of investigation, (3) even if any controversy between deceased and Devilal, that in no way connected with appellant Babulal, (4) appellant Babulal had no motive or reason of involving himself in any such activity, (5) alleged taking Rs.20,000/- by Devilal does not lead anywhere, (6) deceased went on to receive money not mentioned in the FIR or statement of Vandana PW 5, wife PW 10 and otherwise also not believable, (7) evidence of PW 1 regarding last seen not worth inspiring confidence – even if accepted, at best deceased in village went towards direction of house of Babulal – other person Ghanshyam who present there as per PW 1 not produced, (8) nothing incriminating Babu Lal is proved to be recovered from him or as per information – place of incident already visited by police if not on 9th at least on 10th – drum or any such article belonging to appellant not recovered, (9) recovery of appellant Devilal's cloths cannot be believed as is alleged – if any such incident happened, the cloths could easily have been poured in drum or thrown in the well itself or otherwise disposed of in days following alleged incident, (10) even if any blood stains on cloths of deceased, no conclusion can be on its basis as the blood can be of any person, even of labours and as per prosecution at least two such were involved – appellants blood group unknown, (11) recoveries of his own diaries and money in consequential, 15 (12) paper piece allegedly recovered from Devi Lal cannot be deemed to be one of Babulal's 'Bahi' – even not proved to be part of any paper of 'Bahi' and/or given by Devilal. Learned counsel also argued that incident is said to have occurred some time after 9 -10 a.m. on 7th and body carried away in drum in the night of 9th, that is within 5-10 hours of killing and is carried in a drum of around 3' height, whereas height of deceased was not less than 5-1/2', but still the body remained intact. On these basis, argued that if happened like this, in natural course, the dead body cannot remain normal and intact as in this period is stiffened. Lastly argued that signatures on alleged piece of paper is not proved to be of deceased and signatures compared with are not proved to be of deceased. On the basis of above arguments, emphasized that the case is based exclusively on circumstantial evidence and established principles of law