1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bherulal Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO. 347/2006 against the judgment dt.9.3.2006 Passed by Addl.Sessions Judge (FT) No.1, Udaipur, in Sessions Case No.124/2005. Date of Judgment: 24th April, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mridul Jain ) Mr.Shaitan Singh) for the appellant. Mr.S.S.Sharma, Public Prosecutor BY THE COURT : (PER THANVI J.) 1. This is an appeal against the judgment of the learned Additional Sessions Judge (FT) No.1, Udaipur, dated 9.3.2006, whereby he has convicted the appellant Bheru Lal of the offence u/s.302 IPC & sentenced him to undergo life imprisonment alongwith a fine of Rs.5000/- & in default, to further undergo six months' S.I. and of 2 the offence under Sec.201 IPC & sentenced him to undergo five years' R.I. alongwith a fine of Rs.2000/- & in default, to further undergo three months' S.I. 2. Facts leading to this appeal are that on 14.5.05, one Shyamlal lodged a report at Police Station, Dabok, Udaipur that during the afternoon at about 2 PM, two labourers viz; Mohanlal and Kalu, who used to collect seeds in the Forest Division came to him and informed that a dead body was lying underneath the stones near the `Mama Dev Nala', which was giving foul odour. He alongwith his staff and labourers went there and noticed the dead body lying there. He also noticed the stones, stained with blood. The deceased was wearing pants and shirt. It appears that somebody had killed him. The police registered a case on this report vide Ex.P.1 and commenced investigation. The dead body was recovered. The post mortem was conducted. Thereafter, accused appellant Bherulal was arrested and on his information, the shirt was recovered, which was sent for chemical examination. After investigation, the police filed chargesheet against the accused appellant for the offences u/ss.302 and 201 IPC before the court of learned Magistrate, who committed the case to the 3 Court of Sessions. Learned Addl.Sessions Judge (FT) No.1, Udaipur framed the charges against the accused appellant to which he pleaded not guilty & claimed trial. The prosecution examined 22 witnesses. The statement of the accused was recorded u/s.313 CrPC. He led no evidence in his defence. After hearing the arguments, learned trial Judge convicted & sentenced the accused appellant as above. 3. While assailing the judgment of the learned trial Judge, it has been contended by the learned counsel for the appellant that there is no eye witness in this case. The FIR has been lodged after a delay of seven days and the statements of last seen witnesses have been recorded after one month of the incident, which is not natural, as there was no motive of the accused Bherulal to kill the deceased Kailash, who was his brother-in- law. According to him, the dead body was decomposed and it was not properly identified, except the clothes of the deceased and shirt of accused appellant on the information furnished by him u/s.27 of the Evidence Act, which is Ex.P.32. According to him, in the FSL Report, Ex.P.33, the clothes recovered were found stained with human blood but no blood group was 4 detected. While relying upon the various decisions of this Court and the Hon'ble Supreme Court, it has been argued by the learned counsel for the appellant that it is a case of no evidence and the accused Bherulal has been falsely implicated, therefore, he should be acquitted. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. We have heard the arguments of both the parties at length and re-appreciated the evidence brought on record and also gone through the judgments cited by the learned counsel for the appellant. 6. It is true that there is no motive assigned on the part of the accused Bherulal to kill the deceased Kailash, who was his brother in law. The evidence brought on record by the prosecution with regard to last seen is of Kamal Chand, PW 14 and Khema, PW 17. If the evidence of both these witnesses of last seen is looked into in the light of statements of deceased's father Roda, PW 6 and mother Matu, PW 9, who has turned hostile, it is clear that Roda, PW 6 has stated 5 that on 5.5.05, his son Kailash went at the house of his son in law accused Bherulal and told him that he has been called back on 7th May for being sent to Gujarat in connection with employment. On 7th May, when he asked accused Bherulal on phone, he said that deceased Kailash had not come to him. It has been stated by this witness that deceased Kailash left the house on 7th May in the morning and reached at Khemli Railway Station at 8AM and his nephew Kamlesh told him that he met his son at Khemli Railway Station, where accused Bherulal was also there and on being asked, accused Bherulal told that he had come for the bandage. In the evening, his nephew Kamlesh told him that deceased Kailash had gone to Udaipur. In the later part of his examination in chief, he has stated that he came to know about the dead body of his son on 14th May, when the police found it. According to him, accused Bherulal took Rs.8000/- from him for searching his son initially and later on 2nd June, he took Rs.1500/- from him for search of his son in Gujarat. He went at the police station to see the clothes of his son, where he identified his clothes but the police did not agree and t hey asked him to bring some more witnesses. Then, the tailor Kailash was brought, who has been examined as PW 19. 6 In this light, if the evidence of Kamal Chand, PW 14 and Khema, PW 17 is seen, then according to Roda, Kamal Chand, PW 14, who is his nephew, told him in the evening itself of the day of departure i.e. 7.5.05 that his son deceased Kailash had gone to Udaipur but this fact has not been stated by Kamal Chand, PW 14 in his statement, except the fact that the mother of deceased Kailash was searching for her son from the day of leaving the house and that he told that he saw accused Bherulal and deceased Kailash sitting under the `Badla tree'. He has not said anything to the effect that deceased Kailash had left for Udaipur. The same statement has been given by Khema, PW 17. The statements of these two witnesses, who are of last seen, do not inspire any confidence in the light of the fact that Kamal Chand, PW 14 had not informed about the deceased having left for Udaipur on the same day to the mother of deceased and also the fact that their statements by the police have been recorded after a considerable time of more than one month. The investigating Officer Himmat Singh, PW 22 has stated in his cross examination that witness Kailash was examined on 6.6.05 and Khema on 20.6.05. The cause of delay in examination of witnesses by the 7 Investigating Officer has been given that since the dead body was not identified, therefore the statement was recorded later on. In our opinion, this explanation given by the Investigating Officer is not satisfactory because the identification of the dead body rests upon the testimony of Kailash, PW 19, who is a tailor. He has stated that he was shown the shirt of deceased, `Article 3', by the police and he identified the same to be of deceased Kailash because he used to do the tailoring job of Roda and deceased Kailash at his house but when he was cross examined on this point, he said that he did not use any emblem as a mark of his tailoring. Whereas Roda, PW 6 has said in his examination in chief that the clothes of his son were identified by Kailash, PW 19 and his daughter Laxmi, who has been examined as PW 8. She has said that she put the buttons on the shirt of deceased. In our opinion, the identification of the shirt itself cannot be a sufficient ground for conviction. Even if for the sake of argument, it is assumed that the decomposed dead body recovered was of Kailash, it cannot be linked with the last seen evidence that it was the accused Bherulal, who killed him, especially when the witness of last seen viz; Kamal Chand, PW 14 is the nephew of Roda, who is father of 8 deceased Kailash, particularly when they are not having good relations with the family of the deceased because in the cross examination, he has admitted that his family members and the family members of Roda are not attending the marriages in the families of each other. Learned trial Judge seems to have based his conclusion on the basis of conjectures and surmises and the reasons for arriving at the guilt of the accused Bherulal, are not well founded. Under the Criminal Law, when there is no direct evidence available on record, then the prosecution should bring the circumstantial evidence with such a complete chain that there is no de-link in the chain of circumstances at any stage of event. 7. Here in the present case, what to talk of the complete chain, even the evidence which has been brought out by the prosecution is of such a nature that it cannot be relied upon, especially under the circumstances when no missing FIR was lodged and the same has been registered after seven days upon information of someone else, who is Shyamlal, PW 1, unknown member of the family of the deceased, as he was not the local resident. That apart, the witnesses of 9 last seen, have been examined by the police after one month and another after one and half months, with no satisfactory explanation. 8. Next evidence against the accused is of recovery of shirt of accused Bherulal from an open place, Ex.P.10 on the basis of the information, furnished under Sec.27 of the Evidence Act by him vide Ex.P.32 but the witness of recovery, PW 16 Prem Singh has turned hostile and another witness Mangilal, PW 18 is a tutored witness. He appears to be a habitual witness, as he has stated in the cross examination that he has given evidence in many a case at the behest of the police and the recovery was made from the open `bada', where anybody can come. Therefore, the recovery of shirt is also not reliable. 9. So far as the law cited by the learned counsel for the appellant is concerned, in the case of Inderjit Singh v. State of Punjab, reported in AIR 1991 SC 1674, it has been held that there was no enmity between the accused and the deceased and the sole circumstance that the deceased was last seen in the company of the accused, was not held sufficient in conviction of the 10 accused and the same view was reiterated by the Hon'ble Supreme Court in Ramreddy Rajesh Khanna Reddy v. State of Andhra Pradesh, reported in (2006) 10 SCC 172. This Court, while discussing the scope of circumstantial evidence in the case of Umesh and anr. v. State of Rajasthan reported in 2008(1) CJ (Raj.) Cr. 364 delivered by the Division Bench of this Court, in which one of us, Thanvi J. had been the Member, has held that when the case is not based on direct evidence, the circumstances must be of such nature which must lead to no other conclusion except to the guilt of the accused and they should be in the proper chain. In the cited case, there was also motive with regard to payment of Rs.3,60,000/-, whereas in the present case, there is neither any motive nor clinching nor reliable evidence to connect the accused with the commission of murder of deceased Kailash. 10. Consequently, we allow this appeal, set aside the judgment dt.9.3.2006 passed by learned Addl.Sessions Judge (FT) No.1, Udaipur, convicting appellant Bheru Lal of the offence u/s.302 IPC & sentencing him to undergo life imprisonment alongwith a fine of Rs.5000/- & in default, to further undergo six months' S.I. and of 11 the offence under Sec.201 IPC with five years' R.I. alongwith a fine of Rs.2000/- & in default, to further undergo three months' S.I. and acquit him of the said charges. He shall be set at liberty forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS .