1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT RAJU BHAT vs. STATE OF RAJASTHAN. D.B. Criminal Appeal No.645/2008 under section 374 (2) Cr.P.C. against the judgment and order dated 25.08.2008 passed by the Additional Sessions Judge, (Fast Track), Aburoad , District Sirohi in Sessions Case No.29/2008. Date of Judgment: 27 July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Shambhoo Singh for the appellant. Mr. K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This criminal appeal has been preferred by accused appellant Raju Bhat s/o Shri Shanker Lal Bhat r/o Bhatwara, Aburoad, District Sirohi , against the judgment and order dated 25.08.2008 passed by the learned Additional Sessions Judge (Fast Track), Abu Road, District Sirohi, in Sessions Case No.29/2008, whereby the accused appellant Raju Bhat was convicted for offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs.2000/- and in default of payment of fine, to further 2 undergo one month's simple imprisonment . The brief facts of the prosecution story are that on 11.08.2007, PW/3 Naresh Sharma, who is not an eye witness to the incident , filed a written report, (Ex.P/8) at Police Station, Abu Raod (City),District Sirohi wherein he stated that his elder brother Brijesh Sharma was a motor mechanic and on 10.08.07 in the evening at 05.30 PM, Brijesh Sharma went from his house but did not return. On 11.08.07 at 07.00 AM in the morning, the complainant received information that a dead body was lying on the road in front of Gas Agency . On receiving this information, he reached the spot and found the body to be that of his brother Brijesh Sharma. There were multiple injuries on his head and face and blood was oozing . On enquiry he came to know that one Raju Bhat s/o Shankar Lal Bhat, r/o Bhatwara Gandhinagar, Abu Road had inflicted injuries on Brijesh Sharma and had taken away his money. It was also stated that PW/5, Kishore Parihar s/o Shankerlal ji Parihar and few others had seen deceased Brijesh Sharma and Raju Bhat together taking drinks etc. in the evening of 10.08.07. As a result of the injuries caused by the accused appellant, Raju Bhat , deceased Brijesh Sharma had died. On the basis of this information, FIR No.122/2007 (Ex.P/21) , was registered at Police Station, Abu Road (City) and the investigation commenced. During the course of investigation, statement of witnesses 3 were recorded. Accused was arrested and at the instance of accused appellant, blood stained shirt and 'hand's kada' (two pieces) were recovered. Blood stained pant of the deceased and shirt and 'hand's kada' (two pieces), were sent to Forensic Science Laboratory , Udaipur for investigation . Autopsy of the body of deceased was conducted. After usual investigation, charge sheet under section 302 of the Indian Penal Code was filed against the accused appellant Raju Bhat, in the court of Judicial Magistrate, Abu Road, from where the case was committed to the court of Addl.Sessions Judge, Abu Road and ultimately, it was transferred for trial to the court of Addl. Sessions Judge ( Fast Track), Abu Road, District Sirohi. The accused appellant Raju Bhat was charged under sections 302 IPC, for which the accused did not plead guilty and claimed to be tried. The prosecution examined as many as 16 witnesses , namely, PW/1 Prakash Sharma, PW/2 Jayesh, PW/3 Naresh Sharma, PW/4 Jitendra Kumar, PW/5 Kishore Parihar, PW/6 Narpat Singh, PW/7 Hamir Singh , PW/8 Kuldeep Singh PW/9 Kantilal Parihar, PW/10 Laik Ahmed , PW/11 Madho Singh, PW/12 Dr.Vikrant Saxena, PW/13 Kanaihayalal, PW/14 Ramdhan, PW/15 Raju, and PW/16 Rajbala , and also produced documentary evidence, in support of its case . 4 The statement of the accused appellant Raju Bhat was recorded under section 313 Cr.P.C., wherein he stated that he had been falsely implicated in the criminal case. The accused examined no evidence in defence. After the conclusion of trial, learned trial Judge found the accused appellant Raju Bhat guilty for the commission of offence under section 302 IPC and sentenced him as above. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor for the State, and have carefully gone through the impugned judgment and order, as also the record of the case. The learned trial Judge, while convicting the accused appellant under section 302 IPC, believed the part of the evidence of eye witness PW/5 Kishore Parihar, who deposed that in the night of 10th of August, 2007 at about 11.30 PM, on the Gandhi Nagar Post Office Road , he saw two boys and out of them one came to him and told him that the boy accompanying him, was demanding money. Further, the trial court considered the recovery of blood stained 'hand's kada' (two pieces) and the report of the Forensic Science Laboratory stating the same blood group on the clothes worn by the accused appellant and that of the deceased and that blood group was 'group B'. Further, the trial court appreciated that no explanation was submitted regarding the presence of same blood group by the accused appellant. The report of the Forensic 5 Science Laboratory Ex.P/26, was proved by PW/14 Ramdhan, the investigating Officer. The trial court considered the fact of the recovery of the clothes and 'hand's kada' (two pieces) and the report of the Forensic Science Laboratory and on the basis of that, convicted the accused appellant under section 302 IPC. While assailing the judgment of the learned trial court, the counsel for the accused appellant contended that the prosecution had come with the specific case that the eye witness PW/5 Kishore Parihar, had seen the incident at 11.30 PM in the night , however, he did not corroborate the evidence of the prosecution and was declared hostile during the course of the trial. Further, the learned counsel for the accused appellant argued that PW/2 Jayesh, PW/9 Kantilal Parihar, PW/15 Raju and PW/16 Rajbala had also not supported the prosecution case and they had been declared hostile. The contention of the learned counsel for the accused appellant is that PW/12 Dr. Vikrant Saxena in his cross -examination deposed that the injuries observed or noticed on the body of the deceased could be inflicted, if any person in intoxicated position, fell down on any hard object and that possibility could not be ruled out for the injuries. The learned counsel for the accused appellant contended that in view of the cross-examination of PW/12 Dr.Vikrant Saxena, and the injury report Ex.P/24, of the accused appellant, reliance as placed by the learned trial court on the evidence available on record, could not be sustained and the conviction and the sentence awarded 6 by the learned trial Judge, deserves to be set aside. Per contra,the learned Public Prosecutor defended the judgment of the learned trial court and further argued that the circumstantial evidence, as available on record and believed by the learned trial Judge, were unimpeachable and the judgment of conviction and the order of sentence did not require any interference by the present Court. We have considered the rival contentions of both the parties and scanned and evaluated the evidence available on record. We have also perused the statements of witnesses which were deposed by them during trial. PW/2 Jayesh , PW/4 Jitendra Parihar, PW/5 Kishore Parihar, PW/ 9 Kanti Lal Parihar, PW/13 Kanihaya Lal, PW/15 Raju and PW/16 Smt.Rajbala did not corroborate the evidence of the prosecution, therefore, all these witnesses were declared hostile. Out of the other witnesses, PW/1 Prakash Sharma who was a formal witness and was the witness for the execution of memos Ex.P/1, Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, by which during the course of investigation, the Investigating Officer prepared the panchanama of the dead body. The body was later handed over to Naresh and the clothes worn by the deceased were seized by the police. PW/3 Naresh Sharma, who is the elder brother of deceased Brijesh Sharma, deposed that on 10.08.2007 at about 7 5.30 PM his brother went out of his house and did not return in the night. On the next day, in the morning, he came to know that on the road near the Gas Agency, a dead body was lying. He went there and found that the dead body was that of his brother. On inquiry, Kishore Parihar informed him that in the night at about 11.30-11.45 PM, Raju Bhat and his brother Brijesh Sharma were quarreling. The witness further deposed that Kishore Parihar informed about his own intervention. PW/3 Naresh further deposed about the execution of memos Ex.P-1, Ex.P-2, Ex.P-3, Ex.P-4 and Ex.P-5. PW/6 Narpat Singh is the police personal who deposed about the depositing of sealed packets at the police station. PW/7 Hamir Singh deposed about the preparation of the forwarding letter to Forensic Science Laboratory, Udaipur. PW/ 8 Kuldeep Singh is the carrier of the Malkhana articles to Forensic Science Laboratory, Udaipur. PW/10 Laiyk Ahmed deposed that he had snapped photographs Ex.P17 to Ex.P-20. PW/11 Madho Singh is the Investigating Officer, who deposed that on the basis of written report Ex.P-8, a Criminal Case No.122/2007 was registered by him. P.W. 12 Dr.Vikrant Saxena deposed about the fact of conducting an autopsy on the body of the deceased. He had found the following injuries on the body of the deceased Brijesh 8 Sharma:- Fracture on the right temporal bone. As per his evidence, the cause of death was shock and haemorrhage due to head injury and all the injuries were anti- mortem in nature. PW/14 Ramdhan is also an Investigating Officer of the case who deposed that in Criminal Case No.122/2007 under section 302 and 323 IPC, during the course of investigation, accused appellant Raju Bhat disclosed him a voluntary information and pursuance to that information recorded under section 27 of the Indian Evidence Act, he recovered from the residential house of accused , 'hand's kada' (two pieces) and a brown bush shirt. He also recorded the statement of Jayesh, Kantilal, Raju, Rajbala, Narpat Singh, Hamir Singh and Kuldip Singh, during the course of investigation and also filed the charge sheet against the accused appellant. The only evidence against the accused appellant is of blood stained clothes and articles . The prosecution alleged that the blood stained pant of the deceased and the blood stained 'hand's kada' (two pieces) and shirt of the accused were recovered and out of which the 'hand's kada' (two pieces) and the shirt of the accused were recovered at the information of accused recorded by the Investigating Officer under section 27 of the Indian Evidence Act and pant was worn at the time of the incident by the deceased and these articles were sealed at the time of their recovery. When those articles were examined in the Forensic Science Laboratory, Udaipur, the result was as 9 follows:- (4) The following exhibits were found to be stained with 'B' group blood:- Exhibit No.3 ( From C) pant . 6 (From D) 'hand's kada' (two pieces) and 7 (From E) bush shirt . Since the pant which was worn by the deceased and the 'hand's kada' (two pieces) and the shirt which were worn by the accused at the time of the incident were stained with the same group of blood, therefore, this conclusion leads towards the guilt of the accused. To the contrary , the learned counsel for the accused appellant vehemently controverted it, which appeals to us also, because recovery memo Ex.P/5 of pant of the deceased, does not have any mention regarding any stains of blood on the pant. Recovery memo Ex.P/9 of 'hand's kada' (two pieces) , which was worn by the accused appellant at the time of the incident , does not have any mention of the fact of the blood stains. Same is the condition of shirt which was recovered vide memo Ex.P/9. This creates reasonable suspicion. There is no independent witness to show the blood group of deceased and the accused. When a case rest on circumstantial evidence only, the incriminating circumstances must not only be clinching but should be proved by very strong evidence. The only evidence available against the accused is of doubtful nature. Therefore, it is a fit case in which accused must get the benefit of reasonable 10 doubt. Resultantly, by extending the benefit of doubt, accused appellant deserves to be acquitted of the charges levelled against him. Accordingly, the appeal filed by the accused appellant Raju Bhat is allowed and the judgment of conviction and the order of sentence dated 25.08.2008 passed by the learned Addl. Sessions Judge, (Fasst Track), Aburoad, District Sirohi, in Sessions Case No. 29/2008, are set aside and the accused appellant Raju Bhat is acquitted of the charges levelled against him. He be set at liberty forthwith , if not required in any other case. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george