1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Chhagan Lal vs. State of Rajasthan D.B.Criminal Jail Appeal No.214/2004 against the judgment dated 11.2.2004 passed by Additional Sessions Judge (Fast Track) No.2, Pratapgarh, Camp Nimbahera, in Sessions Case No.112/2003. Date of Judgment :: 27th May, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr. Ashok Kumar Choudhary, Amicus Curiae for the appellant. Mr. AR Nikub, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) By judgment impugned dated 11.2.2004 learned Additional Sessions Judge (Fast Track) No.2, Pratapgarh convicted the accused appellant for an offence punishable under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life term with a fine of Rs.1000/- and further to undergo six months simple imprisonment in event of default in payment of fine. 2 The prosecution case, as unfolded in the judgment impugned, is that on 14.1.2003 one Tulsiram son of Khumanji reported at Police Station Dungla that about 19 years earlier marriage of his sister Smt. Nathi was solemnized with Chhagan Lal son of Fatehlal resident of Dungla. Smt. Nathi was regularly ill- treated by Chhagan Lal, thus, she remained at her maternal house for about six months and being consoled and advised by certain responsible persons she returned to her husband. Smt. Nathi was brought to her brother's house at Kankarwa at about a month earlier due to the beating given by Chhagan Lal, then about 20 days earlier she returned to her husband Chhagan Lal on having an assurance that she will not be ill- treated henceforth. On 13.1.2003, Tulsiram reached at Dungla on receiving a telephonic information from Shri Dalu about murder of Smt. Nathi. Tulsiram by seeing dead body of his sister observed that her murder was committed by strangulation. On making necessary inquiry maternal uncle of Tulsi and some other people also stated that murder of Nathi was committed by Chhagan Lal. On basis of the information aforesaid a case was lodged and after making regular investigation a charge sheet was filed before the competent court, charging accused Chhagan Lal with an offence punishable under Section 302 IPC. The case then was 3 committed to the court of Sessions and on 4.2.2004 a charge for commission of an offence under Section 302 IPC was framed against the accused and on denial of the same he was tried. The prosecution supported its case by getting testimony of 15 witnesses examined and producing 17 documents for getting their contents proved. In defence statements of one Smt. Manju Teli (DW-1) were recorded and a document Ex.D/1 i.e. the statement of Dalu as per provisions of Section 161 Cr.P.C. was exhibited. The accused was examined as per provisions of Section 313 Cr.P.C. with a view to get explanation for the adverse material available in prosecution evidence. The accused while stating that he was falsely implicated in the case concerned tried to explain the circumstances with assertion that his wife Smt. Nathi was in habit of roaming here and there without any information and she was also wearing an ornament that would have been a cause of loot and murder. He also stated that looking to acute famine the incidents of loot were quite common. The accused also termed prosecution witnesses PW-10 Mathuralal and PW-11 Shambhu as lier as there was no possibility of hearing scream of deceased from the distance of 1½ kms. Learned trial court after considering the evidence available on record held the accused guilty 4 for commission of an offence under Section 302 IPC, thus, convicted and sentenced accordingly. While doing so, learned trial court relied upon the following circumstances:- - Accused Chhagan and his wife deceased Nathi were having cordial relationship and they were in habit of quarreling quite often; - PW-10 Mathuralal and PW-11 Shambhu saw the accused beating his wife on the fateful day just before ill- happening; and - A wire measuring about 1½ feet was recovered at the instance of the accused from the place of incident. In appeal, the argument advanced by learned Amicus Curiae Shri Ashok Kumar Choudhary is that the witnesses relating to the evidence of last seen PW-10 Mathuralal and PW-11 Shambhu are planted witnesses, thus, no reliance could have been placed upon them to provide a creedal to the conviction. As per learned Amicus Curiae recovery of wire too is of no consequence for the reasons that:- - The wire was recovered from the spot which was already thoroughly searched while inspecting the spot of occurrence. The availability of the wire from the 5 same place after 2-3 days is not at all palatable to prudence. - The wire was recovered from an open place after expiry of substantial period from the date of incidence. - The wire said to be recovered was of green colour but the wire shown in the photographs Ex.P/8 is of blue colour. The investigating officer PW-15 Bhanwar Singh too admitted that the wire recovered was of green colour but the wire produced before the court was of blue colour. - The motbirs of recovery PW-7 Bhopal Singh and PW-8 Chatraji have not supported the prosecution. These witnesses were declared hostile at the request of the prosecution. While defending the conviction, it is urged by learned Public Prosecutor that ample evidence is available to establish ill-treatment and torture extended by accused to his wife deceased Nathi and further that two independent witnesses PW-10 Mathuralal and PW-11 Shambhu specifically stated that they saw accused Chhagan Lal beating deceased Nathi. It is also pointed out by learned Public Prosecutor that the recovery of wire was made at the instance of accused as per provisions of Section 27 of the Indian 6 Evidence Act, thus, there is no reason to disbelieve the same. We have considered the arguments advanced and also scrutinised the record available. On basis of the available medical evidence there is no doubt about homicidal death of Smt. Nathi. PW-14 Dr. Ramesh Kumar Singh has proved the postmortem report Ex.P/7 as per which the cause of death of Nathi Bai was asphyxia due to strangulation. PW-15 Bhanwar Singh, being investigating officer, detailed all the steps taken during the course of investigation. As already stated earlier the conviction of the accused is based on circumstantial evidence, wherein the evidence relating to last seen and the recovery of wire from which strangulation is said to be made, are quite important. If the two circumstances aforesaid remain unimpeachable then complete chain of circumstances certainly indicates involvement of the accused with the crime. As such, the two issues aforesaid deserves thorough examination. Learned trial court heavily relied upon the evidence relating to last seen as adduced through PW- 10 Mathuralal and PW-11 Shambhu. PW-10 Mathuralal 7 stated that while going to Karedi from Dungla, he heard some noise in the fields of maize and also found that Chhagan was beating his wife Nathi. On asking the cause for such beating, Chhagan told this witness not to interfere in the matter and to proceed ahead. As per this witness subsequently he came to know through Sarpanch Baluram about death of Smt. Nathi. In cross examination this witness stated that he did not said anything to anybody about his last meeting with Chhagan and the incident which he saw on the day of occurrence. This witness further stated that no statement was given by him at his own to the police and the police personnel during the course of investigation came to him for getting his statements recorded. PW-11 Shambhu also stated that he and Mathuralal on 13.1.2003 saw that Chhagan was beating his wife Nathi. This witness also stated that though he was knowing about murder of Nathi but he did not said anything about the incident seen by him to any person. It is pertinent to note here that these two witnesses at their own did not inform about the knowledge of beating given by Chhagan to his wife Nathi on the day of occurrence, and they were introduced with the case first time on 23.1.2003 i.e. after a lapse of about nine days from the date of 8 occurrence., when the investigating agency recorded their statements as per Section 161 Cr.P.C. Investigating Officer, PW-15 Bhanwar Singh in quite unambiguous terms stated that he was knowing the fact about last seen of Chhagan and Nathi by PW-10 Mathuralal and PW-11 Shambhu even on 15.1.2003, but looking to his engagement in certain other works statements of these two persons were recorded only on 23.1.2003. On thorough examination of record, we found that as a matter of fact the investigating officer after 14.1.2003 was involved in investigation of the case itself as apparent from perusal of Ex.P/3, Ex.P/4, Ex.P/6, Ex.P/14 and Ex.P/15 etc. All these documents were prepared on the dates subsequent to 15.1.2003. The prosecution has also not produced daily diary before the court to establish the other engagements of investigating officer those prevented him from recording statements of PW-10 Mathuralal and PW-11 Shambhu as per provisions of Section 161 Cr.P.C. immediately after having knowledge about their relevance in investigation of the crime. In the circumstances aforesaid, the argument of learned Amicus Curiae receives strength that these two witnesses were planted by the prosecution at quite a belated stage, just to fill-in the blanks in the prosecution story. We are in agreement with learned counsel to the extent that delay in making necessary 9 investigation from PW-10 Mathuralal and PW-11 Shambhu diligently creates a doubt about their genuineness. The conduct of PW-10 Mathuralal and PW-11 Shambhu is also not as normal as required to be in natural course in view of the fact that though from the first day they were knowing about homicidal death of Smt. Nathi, but they did not choose to inform to any person including the investigating agency about the fact that they saw Chhagan, beating Smt. Nathi. In addition to aforesaid, an important aspect of the matter is that PW-10 Mathuralal and PW- 11 Shambhu both were going to Karedi from Dungla and as per investigating officer the road aforesaid is at the distance of about 1½ kms. from the spot of occurrence. If these witnesses were moving at the distance of about 1½ kms. from the spot of occurrence, then it is quite impossible to hear and witness any noise or occurrence relating to the crime in question. In such circumstances we do not find the prosecution evidence relating to last seen worth believing. So far as recovery of wire at the instance of accused Chhagan is concerned, that too is not adequate for resting the conviction. PW-15 Bhanwar Singh, the investigating officer, categorically stated that the place wherefrom wire was recovered was earlier inspected and searched being the place of occurrence of the crime. This witness also admitted 10 that the wire recovered was of green colour but the wire shown in the photographs Ex.P/8 and produced before the court is of blue colour. It is also pertinent to note that the motbirs of recovery PW-7 Bhopal Singh and PW-8 Chatraji have also not supported the prosecution story and they were declared hostile. In such circumstances the recovery so made as per Ex.P/5 is also not sufficient to protect the prosecution story. The facts and circumstances available on record germinate a reasonable doubt in believing the prosecution case and disbelieving the version of the accused as explained by him while tendering explanation as per provisions of Section 313 Cr.P.C. Accordingly, this appeal is allowed. The judgment impugned dated 11.2.2004 passed by learned Additional Sessions Judge (Fast Track) No.2, Pratapgarh, camp Nimbahera, is set aside. Conviction and sentence recorded against accused appellant Chhagan Lal son of Fataji under the judgment aforesaid too is set aside. He is acquitted from the charge levelled. Let he be released from judicial custody forthwith, if not otherwise required. ( KAILASH CHANDRA JOSHI ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.