1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT KANTI LAL vs. STATE OF RAJASTHAN. D.B. Criminal Appeal No.312/2004 under section 374 (2) Cr.P.C. against the judgment and order dated 24.01.2004 passed by the Additional District & Sessions Judge, (Fast Track) No.1, Dungarpur in Sessions Case No.94/2003. Date of Judgment: 3rd August , 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Sanjay Mathur for the appellant. Mr. A.R.Nikub, Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): By this criminal appeal , the present appellant Kanti Lal s/o Roopa, by caste Pargi Meena , r/o Modri, seeks to challenge the judgment and order dated 24.01.04, passed by the learned Addl.District & Sessions Judge (Fast Track) No.1, Dungarpur in Sessions Case No.94/2003, by which the learned trial court held the accused appellant guilty for commission of offence under section 302 and 201 of Indian Penal Code and 2 sentenced him as under:- For the commission of offence under section 302 IPC sentenced to life imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo one year's simple imprisonment and for the commission of offence under section 201 IPC, sentenced to three years' rigorous imprisonment and a fine of Rs.200/-, and in default of payment of fine, to further undergo one month's simple imprisonment. The facts necessary for the disposal of this appeal, as presented by the prosecution during the course of trial, may briefly be set out at this stage. On 08.04.03 at 10.00 AM, Badami Lal lodged a written report at police station Chitri, to the effect that he was at Jasaila Panchayat Bhawan and there, Mohan Bhai , Ward Panch, and Lalu Bhai , Ward Panh and Waga came and told him that at the boundary line of Chikhli , a dead body of an unknown person was lying. On this information he, along with one another person Bhura, went on the site ,where a blood stained dead body was lying in a pit. It's face was burnt and a bag was also lying nearby. There was a way near the dead body, which went from Rolio to Modri and blood was also seen on that way. On the road side, a white 'dhoti' and a pair of 'chappal' were also lying. 3 On the basis of that first information report, a criminal case No.66/2003 under section 302 and 201 IPC was registered and the investigation commenced. During the course of investigation, the statements of the witnesses were recorded. After snapping photographs of the dead body, the body was cremated. The accused was arrested and in pursuance to the information recorded under section 27 of the Indian Evidence Act, blood stained half-pant and a stick were recovered at the instance of the accused. Later on, the dead body was found to be that of deceased Chunia. After the usual investigation, a charge sheet under section 302 and 201 IPC was filed in the court of Addl.Chief Judicial Magistrate, Sagwara, from where the case was committed to the court of Sessions for trial and ultimately, transferred to the court of Addl. District and Sessions Judge ( Fast Track No.1), Dungarpur, for trial. The learned trial court charged the accused appellant Kanti Lal for the commission of offence under section 302 and 201 IPC and the accused did not plead guilty to the charges and claimed to be tried. The prosecution examined as many as 18 witnesses, 4 namely, PW/1 Mohan, PW/2 Badami Lal, PW/3 Shankar, PW/4 Bali, PW/5 Poonja, PW/6 Valu, PW/7 Kavi, PW/8 Kamla Shankar, PW/9 Dr. Ram Swarup, PW/10 Jeeva, PW/11 Laxman, PW/12 Shankar Lal, PW/13 Vasudev, PW/14 Virendra Kumar, PW/15 Punjilal, PW/16 Dharma, PW/17 Mukesh Pandya, and PW/18 Heramb Joshi The incriminating evidence available against the accused was put for explanation under section 313 Cr.P.C. and accused did not produce any evidence in defence. After conclusion of trial, the learned trial court found the accused appellant guilty for the commission of offence under section 302 and 201 IPC and sentenced him as above. Hence this appeal. The learned trial court convicted the accused appellant Kanti Lal for the commission of offence under section 302 and 201 IPC on the basis of circumstantial evidence produced by the prosecution because there was no eye witness of the commission of offence and the unidentified body of Chunia was cremated by the Gram Panchayat and later on, on the basis of the 'kada' and the clothes worn by the deceased at the time of death, the dead body was identified to be that of Chunia, s/o Nathu. To prove the prosecution story, prosecution examined 18 witnesses, out of which PW/1 Mohan deposed about the memo 5 of panch Ex.P/1 and further he deposed about the preparation of memos, Ex.P/2, P/3, P/4, P/5, P/6, P/7, P/8 and P/9 , i.e. the site was inspected before him, and the site memo and map of the place was prepared before him. Sample of the blood stained soil and control soil were taken before him. The police seized the clothes worn by the deceased before him. The police also seized 'dhoti, 'chappal' and 'thaila' and also blood stained soil and simple soil and 'kankar'. He further deposed that the police handed over the dead body to the Gram Panchayat ,Chitri for cremation. PW/2 Badamilal is the lodger of the first information report, who deposed that he was at the Jasaila Patwari Bhawan, when Mohan Bhai and Lalu Bhai, Ward Panchs came there and informed him that near Pada vishnuji, near a mine, a dead body was lying. He along with both the Ward Panch, went there and saw the dead body but could not identify it. Because he was a Sarpanch of the Gram Panchayat, therefore, he submitted a written report Ex.P/10, and police further prepared the memos from Ex.P/1 to Ex.P/9 in his presence. PW/3 Shankar deposed that he , along with Poonja, Bali Motia and other villagers, went to the polite Station, Chitri to identify the dead body. They had heard about the death of Chunia. Police showed the 'dhoti', 'chappal', shirt , towel , half pant , and 'kada' of the deceased and Bali the widow of 6 deceased Chunia and Poonja, brother of Bali, identified those articles to be that of Chunia. Police also showed them the photographs which were also of Chunia. The witness also admitted his signature “A to B” on identification memo, Ex.P/11 and also on identification memo of Baniyan, 'kurta', half pant and 'kada', Ex.P/12. PW/4 Bali, is the widow of the deceased ,who deposed that about 4 to 5 months previous to recording of her statement in the court, Kanti came to her residence and at that time her husband was also there. Kanti and her husband Chunia started for Chikhli on the next day between 12 to 1.00 PM. At that time her husband was wearing a white dhoti , white banyan and a shirt with lines and silver 'kada' in hand and a green handkerchief was tied on his head and he had 'chappal' on his foot. Her husband never returned after that day. On the next day, Kanti Lal came to her residence and she enquired about Chunia. On enquiry Kanti informed her that Chunia had come back along with him in the night and had slept at his residence and in the morning Chunia went to Medileha village. On Monday evening, her husband did not turn back to his house. On Tuesday morning, she went for labaour, there some persons were talking of a dead body lying near Pada Vishnuji but she did not go there and in the noon at 12 to 1.00PM , she came to her residence . On the same day, in between 5 to 6 PM , on account of non-returning of her husband, she informed the 7 elder brother of the deceased, Poonja about it . On the next day i.e. on Wednesday morning, she along with Poonja , and other eight to ten villagers , went to Chitri Police Station and saw the clothes worn by the deceased. After seeing those clothes, she identified the same to be that of her husband. She deposed about the execution of the memo Ex.P/11 and P/12. PW/5 Poonja , who was the elder brother of deceased Chunia, deposed that on Wednesday, the son of the deceased had come to his residence and then he, along with the son of the deceased Chunia , went to Chunia's house. The wife of Chunia informed him that his brother Chunia had not returned to the house since last three days. He, along with other villagers, went to the police Station and informed the police about the missing of his brother Chunia. Police showed them a white dhoti, a blue banyan, a half pant , one handkerchief, a pair of shoes and a silver 'kada' and after seeing those items they recognised them to be those of the deceased Chunia. This witness did not corroborate the other evidence of the prosecution, therefore, he was declared hostile by the prosecution. PW/6, Valu deposed that his daughter Kavi was married to the son of the deceased, Chunia. About 6 to 7 months earlier to the recording of his statement in the court , at about 08.00 PM at night, Chunia and Kanti, both had come to his residence. 8 On his enquiry, both of them had stated that they were returning from Badgama. Both of them then started for their houses. After 2 to 3 days of that incident, he came to know of the death of Chunia. PW/7, Kavi also corroborated the evidence of her father PW/6 Valu. PW/8, Kamla Shankar deposed that Kavi was his niece. Kavi was married to Gotam, s/o Chunia, residing at Rolia. Kavi used to reside at her maternal house. His brother Valu had informed him that near their field, a coconut, an agarbati, a lemon and a bottle of scent were lying. Valu had further informed him that Kanti and Chunia had come to his residence. Two three days after that incident, he came to hear about the death of Chunia. PW/9, Dr.Ram Swarup Verma deposed that on 08.04.03 he was a Senior Medical Officer posted at Govt. Medical Hospital, Simanvada. On that day on the request of SHO, Police Station, Chitri, he , along with Dr.Ashwani Saxena, had conducted an autopsy on the body of an unidentified person. He found the following conditions of the body and the external injuries :- “ 1.Comminuted fracture of right parietal bone - 2. Comminuted fracture of side frontal bone above right upper 9 eye brow. 3. Comminuted fracture of occipital bone in middle upper part 4. Fracture of middle part of mandible 5. Fracture of right ramus of mandible in middle Fracture of 2nd and 3rd right ribs at sternal angle. Opinion :- 1. From above findings we are of the opinion that the cause of death was haemorrhagic shock as a result of multiple fractures and injuries. 2. Time lapse between the death of the individual and the post mortem examination was approximately 24 to 48 hours. 3. All the injuries were Ante-mortem in nature. 1. Lacerated wound -7cm x 3cm irregular muscle deep left side of neck along the line of mandible 2. lacerated wound -3 cm x 1 ½ cm x bone deep -forehead on right side above right upper eye brow. 3. Lacerated wound – 4 cm x 1 ½ cm x bone deep- Head over right parietal bone 4. Lacerated wound – 3 cm x 1 ½ cm x bone deep – Head over occipital bone in middle upper part 5. lacerated wound 4 cm x 3 cm x bone deep - right side of chest at sternal angle. “ 10 PW/10, Jeeva deposed that 4 to 5 months earlier to the recording of his statement in the court, on an evening he had seen the dead body of a person and had informed his uncle Vaga, of the same. PW/11, Laxman and PW/12, Shankar Lal did not corroborate the evidence of the prosecution and, therefore, they were declared hostile. PW/13, Vasudev deposed that the police had come with accused appellant Kantilal and had informed that there was the necessity of two witnesses. Therefore, he, along with Shankar signed a memo of arrest Ex.P/20 and memos Ex.P/16, P/17, and P/18. Police recovered, at the instance of the accused appellant, a stick from a pit and also recovered the blood stained clothes. PW/14, Virendra Kumar deposed that on 02.05.03 he was posted as a Constable at Police Station ,Chitri. On that day, as per the directions of the Station House Officer, Police Station, Chitri, he registered case No.66/2003 under section 302 IPC. Fauji Lal, the Malkhana Incharge of Police Station , Chitri had handed over to him a sealed packet containing eight articles, which he had handed over to the office of Superintendent of Police, Dungarpur. After preparation of the relevant papers, he went to Udaipur and deposited the sealed articles at the 11 Forensic Science Laboratory, Udaipur. PW/15, Punjilal corroborated the evidence of PW/14 Virendra Kumar and further deposed that he was the Malkhana In-charge of Police Station, Chitri. The Malkhana articles as deposited , remained in the sealed position with him. PW/16, Dharma deposed that as a Sarpanch, on the request of the Station House Officer, police Station, Chitri, he had verified the fact of the ownership of the house and further deposed that the verification memo Ex.P/2 bore his signature. PW/17, Mukesh Pandya deposed that he had snapped the photographs Ex.P/32 and P/33 and had handed over the original photographs as well as the negatives to the Police Station , Chitri. PW/18, Heramb Joshi, was the Investigating Officer of the case and he deposed that on the relevant date, he was the Station House Officer of the Police Station, Chitri and Badami Lal, Sarpanch ,presented a report Ex.P/10, in the Police Station. Heramb Joshi informed that he had visited the place of occurrence. He deposed about the complete investigation process and after usual investigation he submitted the charge sheet in the competent court. 12 Accused in his statement under section 313 Cr.P.C. stated that he had been falsely implicated in the case and that he was innocent. Learned counsel for the accused appellant contended that the appellant was an innocent person and had been falsely implicated in the present case and there was not an iota of evidence against the accused appellant, connecting the accused with the alleged crime. He further contended that the evidence of PW/4 Bali , could not be termed as trustworthy and further there was a contradiction in the evidence of PW/4 Bali and PW/5 Poonja. The conduct of Bali was highly suspicious because she did not inform anybody about the missing of her husband. The further contention of the learned counsel for the accused appellant is that PW/4, Bali deposed that on the day next to the occurrence of the incident , the accused had told her that Chunia had gone to Medileha village and she did not disclose this fact to anybody. The counsel for the accused appellant further argued that the evidence of PW/6 Valu and PW/7 Kavi created a further suspicion in the prosecution story, regarding the point of time at which deceased as well as the accused could reach Rolio. It was further argued that alleged recovery of the blood stained clothes and stick and other items, was forged and fabricated and further this evidence of recovery was not corroborated by any independent witness. Therefore, it did not connect the accused with the crime and there was a major 13 contradiction in the evidence of prosecution witnesses and the medical evidence. The learned counsel for the accused appellant also argued that only on the basis of the fact that the accused appellant was last one to be seen with deceased Chunia while he was still alive, could not be a valid reason for connecting the accused with the crime. The last seen theory comes in to play only when a time gap between the point of time when the accused and the deceased were last seen together and the time when the deceased is found dead is a very small one. The learned counsel for the accused appellant argued that in the instant case the accused had returned with the deceased to his village and had informed the wife of the deceased that the deceased had gone to another village, Medileha , then there was a long gap between the last seen evidence and the death of the deceased. The learned counsel for the accused appellant also argued that the dead body had been cremated by the Panchayat and the photographs of the deceased were never shown to any of the family members. On the basis of the clothes and other articles, which were worn by the deceased, one could not identify the deceased. As it was just possible for any person to place the clothes and other items of the deceased, with any other dead body. 14 The learned counsel for the accused appellant cited the following authorities in support of his contentions.:- 1.Sukhpal vs. State of Rajasthan [2009 (1) Cr.L.R. (Raj.) 736] 2. Bheru Lal vs. State of Rajasthan [2009(2) Cr.L.R. (Raj.) 1153] and 3. Smt.Durga vs. State of Rajasthan [2010(1) Cr.L.R. (Raj.) 616 . Per contra, the learned Public Prosecutor vehemently defended the judgment of the trial court and controverted the arguments advanced by the learned counsel for the appellant. We have considered the rival contentions of both the learned counsel and also evaluated and scanned the evidence on record. The Hon'ble apex Court in Jagdish vs. State of Madhya Pradesh [2009 (9) SCC , 495] had held that it was true that in the case of circumstantial evidence, motive did not have a major significance, but to say that in the absence of a motive, a conviction passed on circumstantial evidence was not in accordance with the principle of justice, was not correct. Circumstantial evidence constitute a chain of 15 evidence , stronger than an eye witness's account, and do remind of the cliché that, “Men often lie , circumstances do not.” In this case, as argued by the learned counsel for the accused appellant, the time gap between the point of time when the accused and the deceased were last seen together while the deceased was still alive and when the body of the deceased was found , could not be said to be a long period. As per the post-mortem report of the deceased, the autopsy had been conducted on 08.04.03 and it is mentioned in the post mortem report Ex.P/14 that the duration of the injuries had been 24 to 48 hours prior of the post mortem examination. The report about the lying of a dead body, had been submitted by Badamilal on 08.04.03 and as per the statement of PW/4, Bali , the deceased had gone to the accused appellant on Sunday , i.e. on 06.04.03. Thus, as per Ex.P/14, and the statement of PW/4 Bali, the deceased had gone with the accused on 06.04.03 and his dead body was found on 08.04.03. This time gap, could not be termed as a long one, so as to disbelieve the evidence of PW/4 Bali, PW/6 Valu, and PW/7 Kavi. Even if the next contention of the learned counsel for the accused appellant, regarding the recovery of the blood stained clothes and other items and the place and time of the seeing of the accused with the deceased at Rolio village, is not considered, the evidence of PW/4 Bali, PW/6, Valu and PW/7, 16 Kavi, is sufficient to establish that the accused appellant and the deceased had started together from the residence of the deceased, as was deposed by PW/4, Bali. The evidence of PW/4 Bali , PW/6, Valu and PW/7, Kavi corroborate with each other and hence remain unimpeachable. We have considered the authorities as cited above. In Sukhpal's case (supra ), the Court did not find the statement of the prosecution witnesses as trustworthy and further held that the witnesses did not inspire confidence in the facts and circumstances of the case. In Bheru Lal's case (supra), the first information report was lodged after a lapse of 7 days and that too by some one else, who was unknown to the family of the deceased, and the witnesses of the last seen together story, were examined by the police after a month. Therefore, the prosecution story was found untrustworthy. In Smt.Durg's case (supra), the court had held the prosecution story as untrustworthy on the ground that the deceased had been missing from 24th May 1997 and the evidence of the last seen story came up for first time on 04th June, 1997 and further the prosecution witnesses failed to identify the accused. Therefore, on the circumstantial evidence, prosecution could not prove the offence beyond a reasonable 17 doubt. But in the instant case , PW/4, Bali enquired from the accused appellant on the very next day of the absence of her husband and the accused appellant gave her false information about the deceased, which further proves a motive on the part of the accused appellant. On the day next to that ,PW/4, Bali, wife of the deceased Chunia waited for her husband and then she called the elder brother of the deceased and on information received about the dead body of an unidentified person, she, along with other persons, immediately rushed to the police Station and informed the police about the incident. Thus, it cannot be said that there was an inordinate delay in searching for the missing person or lodging of the first information report or that there was an inordinate delay on the part of the investigating Officer to place the evidence of the last seen together story, on record. In the present case, the evidence of PW/6 Valu and PW/7 Kavi inspire confidence and the fact of the missing of the deceased is also proved by PW/5, Poonja and he also deposes that on call by Bali, he went to the house of Chunia and then the deceased's wife PW/4 Bali , informed him about the fact of missing of his brother, deceased Chunia for the previous three days. It is not a case of a single evidence of PW/4 Bali . In the present case, the last seen evidence is also 18 corroborated by the evidence of PW/6 Valu and PW/7 Kavi. No question was suggested to PW/6 Valu and PW/7 Kavi regarding the fact of deposing a false evidence for any reason. The most important contention of the learned counsel for the accused appellant is that the photographs of the deceased were never shown to any one, so as to identify the dead body to be that of Chunia because the learned counsel for the accused appellant argued that on the basis of the clothes and silver 'kada' and 'chappal' the deceased could not be identified and that was one of the most important lacuna, as per the learned counsel for the accused appellant. We have perused the evidence of PW/3 Shankar. He deposed that the police showed the photographs, which were of Chunia and the identification by PW/3 Shankar on the basis of the photographs of Chunia, is sufficient to establish this fact that the dead body recovered by the police and cremated by the Gram Panchayat, was that of Chunia. Identification of body by PW/3 Shankar is sufficient and there having no evidence of any other witness on this point , does not effect the impeachability of other circumstances. Coming to the point of injury inflicted on the body of deceased Chunia, as per post mortem report Ex.P/14, there was a comminuted fracture of right parietal bone, comminuted 19 fracture of side frontal bone, comminuted fracture of occipital bone , fracture of middle part