Case: Hardyal Prem Vs. State of Rajasthan

1. Delay condoned. Special leave granted2. Both the appeals arise by a common judgment made in Criminal Appeal No. 689/76 dated December 2, 1983 on the file of the High Court of Rajasthan, Jaipur Bench at Jaipur. Before the trial court these two appellants along with one other accused by name, Narain, who was arrayed as accused 1 were one tried for offences under Sections 302 and 392 IPC. In this connection, it may be noted that accused Narain who is said to be undergoing his sentence of life imprisonment, is not before us. According to the prosecution that on the night of September 29, 1974, in a field situated in Moza Tan Nayabas Ki Dhani, the appellants and Narain murdered the deceased Rupa Gujar aged about 65 and also committed the offence of robbery by removing her ornaments. To substantiate above charges, PWs, 1 to 20 inclusive of the official witnesses were examined. It is said that the deceased left the well situated in her field at about 6 p.m. on the date of the occurrence. At that time if leaving, the deceased was found to have been wearing some silver ornaments (Articles 1 to 6). The deceased did not return to the well till the next morning. She was not also found in her house. A frantic search was made but it proved futile. On the evening of October 2, 1974 it was informed by some children that a dead body of a woman was lying in the field and the hands and legs of the deceased had been cut and the ornaments were missing. PW 1, son of the deceased laid a report at Bandikuin Police Station on October 2, 1974 at about 5.30 a.m. PW 18 took up the investigation, went to the site and prepared a site plan. Dead body was highly mutilated and decomposed and part of the body was eaten away by animals. During the course of investigation PW 18 examined witnesses and arrested these two appellants and Narain on October 5, 1974. The respective houses of these two appellants and Narain were searched on October 7, 1974 which led to the recovery of the dagger from the house of the appellant Prem and a gandasa and a silver kada from the house of Narain but nothing was recovered from the house of Hardyal. On October 8, 1974 again the house of the appellant Prem was searched and one silver kada was recovered. On the same day the house of Hardyal was searched which led to the recovery of certain silver articles, namely, a bali (earring), silver bangles, silver rings and a silver locket. Thereafter on October 29, 1974 the house of Hardyal again was searched and certain clothes of the accused which said to have been stained with blood were recovered. All the ornaments recovered during the course of the searches are marked as Articles 1 to 6. After completion of the investigation PW 18 filed the charge-sheet 3. The trial court on the strength of the evidence adduced by the prosecution convicted the appellants and Narain under Section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life and also convicted them under Section 392 IPC and sentenced each of them to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 500. The High Court, on appeal, his confirmed the judgment of the trial court4. Admittedly there is no eye-witness to the occurrence. The prosecution rests its case only on certain pieces of circumstantial evidence to substantiate these charges levelled against these two appellants and Narain. Those circumstances are formulated in paragraph 33 of the judgment of the trial court 5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasons - namely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly no blood-stained cloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain

Decision reasoning: 1[ds]5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasonsnamely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly nocloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain