Vijay Kumar vs State Of Rajasthan

3. Aggrieved by the conviction and sentence accused Nos.1 to 5 preferred appeal in Criminal Appeal No.664 of 2001 and the High Court by judgment dated 2.5.2007 dismissed the appeal preferred by the accused No.1 Atma Ram and accused No.3 Vijay Kumar/appellants herein and at the same time allowed the appeal pertaining to accused No.2 Kailash Chand, A-4 Gyan Chand and Accused No.5 Radha Devi and acquitted them of charge under Section 411 IPC. Challenging their conviction and sentence accused No.1 Atma Ram and accused No.3 Vijay Kumar have preferred the present appeals.

4. Briefly the case of the prosecution is as follows:

During the trial the prosecution examined 86 witnesses and marked the relevant documents in support of its case. A-1 Atma Ram examined himself as a defence witness, besides 4 other witnesses were examined on the side of defence. The trial Court found accused guilty of the charges and sentenced them as narrated above, on appeal the conviction and sentences imposed on A-1 Atma Ram and A-3 Vijay Kumar were confirmed and the other accused were acquitted. A-1 Atma Ram and A-3 Vijay Kumar have challenged the same in these appeals.

9. Circumstances No.2 and 3 are taken up for discussion together. PW7 Kishore Singh is a resident of village Chhapoli and he has testified that Keshar Bai was a nurse in the hospital and was residing as a tenant in his house on rent of Rs.10 per month for more than a decade and she used to lend loan on interest on mortgage of ornaments and she used to keep the ornaments in a box in the house and a month prior to the occurrence she shifted her residence from his house to the hospital with all her belongings.

11. The remaining last circumstance pertains to the recoveries made pursuant to the disclosure made by the appellants. The investigation officer PW 85 Shiv Prasad Sharma has claimed that he arrested A-1 Atma Ram on 9.4.1986 and on inquiry he gave Exh. 105 information which led to the recovery of ornaments mentioned in Exh.P8 -list in the presence of witnesses. PW 5 Santbax Singh and PW6 Madanlal Bhavaria are the witnesses to the said recovery. Both of them have testified that accused No.1 Atma Ram took them and the police to his house and entered a room in the court-yard and opened an almirah and took out a plastic bag and handed it over, which contained ornaments of gold and silver and the same was recovered by Memo under Exh. P8 list. The further testimony of the investigation officer is that he arrested A- 3 Vijay Kumar on 26.4.1986 and on inquiry he gave Exh.P 111 information which led to the recovery of ornaments under Exh.P5 Memo in the presence of witnesses. PW4 Tota Ram is the witness for the said recovery and according to him A-3 Vijay Kumar took him and the police to his house and produced silver and gold articles and they were recovered under Exh.P5 Memo, which he attested. The relevant portion of Exh.P5 Memo reads as follows:

15. In this background we are of the considered opinion that both the Courts below fell in error in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable doubt. Benefit of doubt will have to be given to both the appellants.

16. In the result both the appeals are allowed and the conviction and sentence imposed on the appellants by the courts below are set aside and they are acquitted of the charges. They are directed to be released from the custody forthwith unless required otherwise.

February 18, 2014