Vinay D. Nagar vs State Of Rajasthan

2. The relevant facts of the case as per the prosecution are that Kalu (the deceased) was Chowkidar in the office of Agriculture Extension Bundi and his duty was during the night in the office premises. He was found missing under mysterious circumstances on 15.07.2000, hence informant Ramesh Chand Jain, Assistant Director lodged a written report on 15.07.2000 at 7:30 am in the Police Station, Bundi. On the basis of the report, a case under Section 456/364 IPC was registered and investigation commenced. During the investigation, it was revealed that Kalu was a star witness in a criminal case registered against the appellant-Vinay D. Nagar and others under Sections 365, 364, 328, 342, 323 IPC. As per the prosecution case, the accused along with his other companions had abducted a child Sonu on 07.07.2000 and had brought Sonu in the office where Kalu was Chowkidar and kept him in the office for some time. The activities of the accused and his companions made Kalu suspicious. Since Kalu had seen the accused with Sonu and as the accused was a Clerk in the same office where Kalu was posted as a Chowkidar, the statement of Kalu was recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."). The Investigating Officer moved an application before the Magistrate on 12.07.2000 to record the statement of Kalu under Section 164 Cr.P.C. and Kalu was to be produced before the Magistrate on 17.07.2000, the date given by the Magistrate. But in the intervening period, his dead body was found in a tank on 19.07.2000. The post mortem report indicated that the death of the deceased was homicidal. The appellant-accused was arrested and put to trial. In his statement under Section 313 Cr.P.C., he stated that on the relevant date he had gone to Bombay, but the explanation was found false in view of the evidence led by the prosecution whereby it was found that he had gone to Ahmedabad and not to Bombay. The Session Court found the accused guilty and convicted him.

3. The accused preferred an appeal before the High Court which was dismissed holding that in the fact- situation the deceased had seen the accused with Sonu and had named the accused as the main culprit. The statement of Kalu was recorded under Section 161 Cr.P.C. on 10.07.2000. On 09.07.2000, the accused absented himself from the office and disappeared without submitting any leave application. Later on, Kalu was found dead on 19.07.2000. It was held by the High Court that the evidence collected by the prosecution shows that the accused had a strong motive and the opportunity for committing a crime. The High Court further held that the accused was absconding and hence the disappearance of the accused after the occurrence was a relevant circumstance which in the absence of plausible rebuttal evidence can be taken into consideration. The High Court was of the view that from the aforesaid circumstances an inference can be drawn towards the appellant's guilt. All the aforementioned circumstances taken cumulatively have formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else. Hence, the appeal was dismissed by the High Court.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

16. We have gone through the evidence placed on record by the prosecution. None of the witnesses stated that at the relevant time and/or relevant date, they had seen the accused at Bundi. The witnesses examined by the prosecution have proved the fact that the accused stayed at some of the hotels in Ahmedabad, but there is no proof of the fact that he checked in the hotel(s) giving the fictitious name. There is no proof of the accused being last seen with the deceased. The prosecution has failed to prove the accused's presence on the date of the incident at Bundi. The evidence adduced by the prosecution does not point to the guilt of the accused. The circumstances on which the High Court has placed reliance do not establish the guilt of the accused, nor does it exclude every hypothesis but the one proposed to be proved by the prosecution. The prosecution has failed to prove the chain of evidence by which one could clearly and unequivocally reach to the conclusion of pointing the guilt of the accused-appellant for commission of the crime.

17. For the aforesaid reasons, the appeal is allowed. The judgment of the High Court and that of the Session Court are set aside. The accused-appellant is directed to be set at liberty if he is not required in any other case.