HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 2047/2017
Jagdish S/o Shri Girdhari Lal, R/o Mahaveer Colony, Modak
Goan, Police Station Modak, District Kota, Raj.
(At Present Confined In Central Jail, Kota).
----Appellant
Versus
State Of Rajasthan Through PP.
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat with Mr. T.C.
Swami For Respondent(s) : Mr. Javed Choudhary, Addl. GA HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment Date of Reserve :: 22.02.2022 Date of Pronouncement :: March 03, 2022 (PER ANOOP KUMAR DHAND, J) Reportable The appellant has preferred instant appeal under Section 374(2) Cr.P.C aggrieved against the judgment dated 25.10.2017 passed by the Court of learned Additional Sessions Judge, Ramganj Mandi, District Kota (hereinafter referred to as 'the trial Court') in Sessions case No.28/2016, whereby the appellant- Jagdish has been convicted and sentenced as under:-
Offence Under Sentence Fine In default of
Section Payment of
Fine
302 IPC Life 5,000/- One month RI
Imprisonment
Skeleton facts relevant and essential for disposal of the appeal are as under:-
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(2 of 16) [CRLA-2047/2017] 'On 19.08.2016, the FIR bearing No.185/2016 (Ex.P-8) was registered at Police Station Modak, District, Kota on the basis of the written report (Ex.P.42) submitted by Babu Lal (PW-2). In the report, he alleged that he is resident of Mahaveer Colony, Modak. They are three brothers. Yesterday, on the day of 'Rakshbandhan', his wife Badam Bai and children Pooja and Vishan were at home. His mother Sita Bai and Jagdish were also at home. On the same day, at about 2:30 PM, Pappu, son of his brother-in-law Bhanwarlal came on a motor cycle to take his wife. His wife Badam Bai and daughter Pooja went with Pappu to his matrimonial home at Vrindavan, Jhalawar. After some time, he along with his son Vishan went to his matrimonial home. At that time, his mother and brother Jagdish were at home. He reached his matrimonial home at 4:30 PM and at 10:00 PM, he returned back with his son Vishan at his home. He consumed more liquor as a result of which slept in his room. When he awoke at 7:30 A.M in the morning, he saw his mother dead in a blood-stained position. There were injuries on her body and blood was oozing out therefrom. He called his uncle Harlal and informed the Sarpanch of Modak Village and told them that some unknown persons assaulted his mother and committed her murder.
After registration of FIR (Ex.P8), investigation was undertaken by Police Station Modak, District, Kota. After completion of investigation, charge-sheet was submitted against the appellant for the offence punishable under Section 302 IPC. The Trial Court framed charges against the appellant for the offence under Section 302 IPC. The accused-appellant, denied the charges, pleaded not guilty and claimed to be tried. The prosecution examined as many as 23 witnesses and exhibited 43 (Downloaded on 05/03/2022 at 08:57:13 PM) (3 of 16) [CRLA-2047/2017] documents to prove its case. The accused-appellant, upon being questioned under Section 313 Cr.P.C, and when confronted with the circumstances appearing against him in the prosecution evidence denied the same and claimed to be innocent.
After hearing arguments advanced by the learned Public Prosecutor and the learned defence counsel and upon appreciating evidence available on record, the trial Court convicted and sentenced, the appellant as indicated here-in-before. The accused- appellant being aggrieved with the impugned judgment dated 25.10.2017 has preferred instant appeal.
Learned counsel for the appellant vehemently contended that the entire prosecution case is false and fabricated. The prosecution has failed to bring home the charges against the accused on the strength of circumstances of last seen of the deceased with the appellant. Counsel further submitted that the material prosecution witnesses namely; PW-1 Kamlesh, PW-2 Babulal, PW-3 Shankarlal, PW-6 Madanlal, PW-7 Satyanarain, PW- 9 Harlal, PW-11 Ratani Bai PW-12, Tej Singh, PW-13 Jiyauddin and PW-20 Radheyshyam did not support the prosecution story and turned hostile.
Counsel further submits that as per Post-Mortem report (Ex.P.10), the cause of death of the deceased was 'Asphyxia' while there is no allegation of throttling against the appellant hence there was no occasion that the clothes of the accused were found with blood-stain. As per FSL report (Ex.P.43), there was human blood on the clothes but the blood group was found to be 'inconclusive'. Counsel submitted that the statements of the witnesses create doubt on the veracity of their presence. Counsel for the appellant next submitted that there are improvements in (Downloaded on 05/03/2022 at 08:57:13 PM) (4 of 16) [CRLA-2047/2017] the statements of the witnesses recorded during the course of the trial. The improvement made before the Court is not there in their Police statements which were recorded after the occurrence. On the above ground, learned counsel for the appellant submitted that the instant criminal appeal be allowed, the impugned judgment of conviction and sentence be set aside and the appellant be acquitted from the charges levelled against him.
Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and submitted that the prosecution has proved its case against the appellant by pleading cogent and convincing evidence forming complete unbroken chain of circumstantial evidence.
Learned Public Prosecutor further submitted that PW-2 Babulal is the son of the deceased and the brother of the appellant, who lodged the FIR (Ex.P-8) against the unknown person who committed the murder of his mother, but he has mentioned that when he, his wife Badam Bai and children went to his maternal home on Rakshabandhan i.e. on 18.08.2016 only Jagdish was there at home with his mother and no one was present at home and this fact is also proved from the testimonies of PW-16 Badam Bai, PW-15 Kailash, PW-11 Ratani Bai. PW-2 Babulal returned back from his in-laws house in the night on 18.08.2016 and he and his son slept there because he consumed liquor. Next day, when he awoke, he found his mother as dead in blood-stained condition. Learned Public Prosecutor also submitted that when PW-11 Ratani Bai came on the spot and found Sita Bai as dead, appellant-Jagdish was not there at home. PW-12 Tej Singh deposed that when he reached at the spot, all family members were there except the appellant-Jagdish. When (Downloaded on 05/03/2022 at 08:57:13 PM) (5 of 16) [CRLA-2047/2017] Radheyshyam brought the appellant from canteen, the appellant- Jagdish was disturbed and he was not talking to any one. PW-20 Radheyshyam stated that the dead body of Sita Bai was lying at home and Jagdish was not there. He brought Jagdish near from Mangalam Factory where he used to work. Learned Public Prosecutor further submitted that the FSL report (Ex.P43) clearly indicates that human blood was found on the clothes of the deceased and the appellant, which clearly proves the case beyond any reasonable doubt against the appellant. Thus, the criminal appeal filed by the accused-appellant be dismissed and the judgment dated 25.10.2017 passed by the trial court be confirmed.
We have given our thoughtful considerations to the submissions advanced at bar and have also gone through the impugned judgment and carefully re-appreciated the evidence available on record.
It has been consistently laid down by the Hon'ble Supreme Court in catena of judgments that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the following judgments, Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890), the Hon'ble Apex Court has held that the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and (Downloaded on 05/03/2022 at 08:57:13 PM) (6 of 16) [CRLA-2047/2017] have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offences home beyond any reasonable doubt.
We may also make a reference to a decision of Hon'ble Apex Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC
79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in (Downloaded on 05/03/2022 at 08:57:13 PM) (7 of 16) [CRLA-2047/2017] evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Hon'ble Supreme Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
A reference may be made to the decision reported in 2017 (14) SCC 359 by following the judgment of Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the Hon'ble Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (Downloaded on 05/03/2022 at 08:57:13 PM)
(8 of 16) [CRLA-2047/2017] (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE 541] and in 2017 (14) SCC 359.
Suffice to say that the case of prosecution is based purely on circumstantial evidence in the form of last seen evidence.
Now we proceed to examine the matter in the light of the facts mentioned above. The prosecution has mainly relied upon the last seen theory. PW-2 Babulal, son of the deceased and brother of the appellant in his statement indicated that the incident occurred on the day of Rakshabandhan. On that day, he went to his in-laws house with his family. His mother Sita Bai and brother Jagdish were there at home on that day, Jagdish was consuming liquor since morning. Jagdish used to quarrel with them and mother. On that day, he threatened his mother Sita Bai to give money for liquor otherwise he would kill her. He got the information at his in-laws place that his mother has been murdered. When he reached there he found his mother as dead. (Downloaded on 05/03/2022 at 08:57:13 PM)
(9 of 16) [CRLA-2047/2017] Jagdish fled away but when the Police arrested him. Jagdish told them in the presence of Police that he smashed head of Sita Bai with the wall for want of money and because of that she died. He reported the matter to the Police by lodging FIR (Ex.P8).
In cross-examination, this witness has admitted that on the day of incident, he was at his in-laws house with his family and he stayed there in the night. He used to consume liquor and on that day also he consumed liquor and came back to his home with his son and slept. This witness admitted that this fact was not there in FIR (Ex.P8) that Jagdish used to quarrel with his mother for liquor and on the day of incident, Jagdish consumed liquor. This witness has admitted that FIR (Ex.P8) was lodged against unknown person. He has also admitted that in his Police Statement (Ex.D1), he did not mention that Jagdish demanded money from his mother and smashed her head to the wall. This witness PW-2 claims himself to be witness of last seen but he is not a last seen witness of the case because he went to his in-laws house on the day of Rakshabandhan with his family, when he got information that his mother was murdered in the night. When he came back and found his mother dead, Jagdish fled away from the place of occurrence and when Police brought him then he confessed in front of them that he smashed head of his mother with the wall for want of money due to which she died. This witness has introduced a complete new story when his statement was recorded during the trial, while in FIR (Ex.P-8), he has mentioned that some unknown persons have committed murder of his mother.
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(10 of 16) [CRLA-2047/2017] The conduct of this witness is so unnatural that in his examination-in-chief, he has stated that he was at his in-laws house, when he got the information about murder of his mother, while in his cross-examination, he says that he came back in the night at home, consumed liquor and slept. This witness is not sure about his own presence on the day of occurrence that whether he was at his in-laws place or he was at his own house and when he got the information about the murder of his mother at his in-laws place and when he came back to his house, and then why he consumed liquor and slept and lodged FIR (Ex.P-8) on the next day against unknown persons. Hence, it is clear that he is not last seen witness who saw the appellant in the company of his mother.
PW-15 Kailash stated that two to four days prior to the incident, his brother Jagdish (appellant) was demanding money from his mother, when his mother got claim of Rs. 50,000/-. When he went to his in-laws house and there was no one at home except the mother and Jagdish. Jagdish murdered his mother in the night and fled away. In cross-examination, this witness has admitted that he was out of house since two to three days of the incident. He was not aware that on the day of incident when his mother died, Jagdish was there or not. He did not see Jagdish killing his mother and on the basis of suspicion, he has stated that Jagdish has committed murder of his mother. He has also admitted that his other brother Babulal was sleeping in the other room on the day of the occurrence. Hence, it is clear that he is also not witness of the last seen. It also shows that the deceased was not seen in the company of the appellant.
PW-16 Badam Bai stated in her statement that except his mother-in-law and brother-in-law Jagdish, no one was there at (Downloaded on 05/03/2022 at 08:57:13 PM) (11 of 16) [CRLA-2047/2017] home. After returning from her matrimonial home, they came to know that her mother-in-law Sita Bai was murdered. Jagdish demanded money and when Sita Bai refused, he committed her murder and fled away. In her cross-examination, she has admitted that on the day of occurrence, she was not there at home and she was not aware whether the appellant Jagdish was there at home or not. She admitted in her cross-examination that Jagdish never demanded any money in her presence. At Modak, she came to know from the neighbor that her mother-in-law has been murdered hence it is clear that PW-16 Badam Bai was also not the witness of last seen.
The other material prosecution witnesses namely pW-1 Kamlesh, PW-3 Shankarlal, PW-6 Madanlal, PW-7 Satyanarain, PW-9 Harlal, PW-11 Ratani Bai, PW-12 Tej Singh, PW-13 Jiyauddin and PW-20 Radheshyam did not support the prosecution story and they have turned hostile.
The Hon'ble Supreme Court in Kanhaiyalal v. State of Rajasthan reported in (2014) 4 SCC 715, on the circumstance of last seen, inter alia, laid down as under:-
"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
Further, in Nizam & Ors. v. State of Rajasthan : (2016) 1 SCC 550, again it was observed as under:-
"...... undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds that courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its (Downloaded on 05/03/2022 at 08:57:13 PM) (12 of 16) [CRLA-2047/2017] entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
In view of the missing link of evidence of last seen as relied upon by the prosecution, it is not safe to rely on the evidence of the witnesses PW-2 Babulal, PW-15 Kailash and PW-16 Badam Bai. Other important evidence relied upon by the prosecution pertains to the blood-stained clothes of the deceased and the appellant on which blood was found in FSL report (Ex. P43).
Bare perusal of FSL report (Ex.P43) indicates that only human blood was found on the clothes and the same was 'inconclusive' for blood grouping. Hence, conviction of the appellant cannot be made solely on the basis of FSL report in absence of other connecting and corroborative evidence on record.
As per the statements of PW-4 Dr. Nitesh Meena, who conducted Post-Mortem of the deceased Sita Bai on 19.08.2016, he found the following injuries on her body.
"Lacerated wound- 3x2x1 Cm on chin Abrasion- 3x1 Cm on Right Cheek Abrasion- 2x2 Cm on Forehead".
This witness also prepared her Post-Mortem report (Ex.P10) and gave opinion that the cause of death of the deceased was due to 'Asphyxia'. This is not the case of prosecution that the appellant caused death of the deceased by throttling her. PW-2 Babulal has stated that in the presence of the Police, the appellant confessed that for taking money from Sita Bai (deceased), he smashed her head to a wall and she died. While Sita Bai did not die due to any injury on her head. The cause of death was due to 'Asphyxia' and there is no evidence that the death of the Sita Bai was due to throttling caused by the appellant. PW-5 Seetaram, PW-8 Omprakash are Police constables, in whose presence the appellant (Downloaded on 05/03/2022 at 08:57:13 PM) (13 of 16) [CRLA-2047/2017] deposed that he can tell the place of occurrence where he has committed the murder of his mother and on the basis of this information, site plan (Exs. P-11 & P-12) was prepared. These witnesses have admitted in their cross-examinations that the site plan (Exs. P-11 & P-12) were prepared in absence of any independent witness. They are not the independent witnesses hence no reliance can be placed on their evidence. The place of occurrence was already known to the Police hence there is no fact discovered in consequence of the information given under Section 27 of the Indian Evidence Act and Ex.P11 and Ex.P12 cannot be read against the appellant.
The investigating officer PW-23 Ajeet Bagdolia arrested the appellant on 19.08.2016 and allegedly recovered the blood stained clothes of the accused-appellant on 21.08.2016, vide seizure memo (Ex.P-24) from a mess of mines Garage, which is an open place accessible to all and sundry. The Malkhana incharge (PW-17) Smt. Geeta Panchali has stated that two seized packets i.e. Mark 'A' and 'B' were deposited in Malkhana on 19.08.2016 and the packet Mark 'C' was deposited on 21.08.2016, while on the contrary Malkhana Register (Ex.P-22-A) indicates that three packets Mark 'A', 'B' and 'C' were deposited by Constables Om Prakash on 19.08.2016. Thus, no reliance can be placed on the recovery of blood stained clothes of the accused.
PW-19 Rakesh Singh and PW-21 Shri Brij Mohan are also Police Constables in whose presence the blood-stained clothes of the appellant were recovered from a 'Tin-Shed' at Mangalam Factory. The recovery memo is Ex.P24. These witnesses have admitted in their cross-examinations that several persons were (Downloaded on 05/03/2022 at 08:57:13 PM) (14 of 16) [CRLA-2047/2017] present in the premises at the time of recovery but even then, none was made witness of the memo of recovery.
Hence, there is no incriminating evidence available on record to connect the appellant with the occurrence.
The Hon'ble Supreme Court in Brijesh Mavi v. State (NCT of Delhi) : (2012) 7 SCC 45, while dealing with a case of circumstantial evidence, inter alia, observed as under:-
"The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra which principles have been consistently folllowed in Tanviben Pankajkumar Divetia v. State of Gujarat, Vikram Singh v. State of Punjab, Aftab Ahmad Anasari v. State of Uttaranchal, Sanatan Naskar v. State of W.B. and Mohd. Arif v. State (NCT of Delhi)."
In the case of Nizam (supra), the Hon'ble Supreme Court also dealing with a case of circumstantial evidence, inter alia, observed as under:-
"Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence."
In Trimukh Maroti Kirkan v. State of Maharashtra MANU/SC/8543/2006 : (2006) 10 SCC 681, Hon'ble Apex Court held as under:
"In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that (Downloaded on 05/03/2022 at 08:57:13 PM) (15 of 16) [CRLA-2047/2017] there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab MANU/SC/0740/2012 : (2012) 11 SCC 205, Sampath Kumar v. Inspector of Police, krishnagiri MANU/SC/0188/2012 : (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi) MANU/SC/0919/2011 : (2011) 13 SCC 621 and a number of other decisions."
Law is well-settled by catena of decisions that in a case based purely on circumstantial evidence, the prosecution is required to prove every link in the chain of circumstances by leading clinching evidence so as to complete the chain pointing infallibility towards the guilt of the accused and being incompatible with his innocence. In the case in hand, we have found that evidence about the chain of circumstances relied upon by the prosecution to bring home the charges against eh accused- appellant is totally flimsy, in-convincing and based purely on conjectures and surmises and the same cannot be considered to be trustworthy even for a moment so as to affirm the guilt of the accused-appellant.
There is no evidence on the ground to show that the accused-appellant was last seen with the deceased. Section 106 of Indian Evidence Act, 1872 is not applicable to the facts of the case, it cannot be said that the accused-appellant failed to explain as to what happened after he was last seen together specially when there is no evidence to show that he was last seen together with the deceased.
A close scrutiny of the material available on record, would disclose that the circumstance relied upon by the prosecution to prove guilt of the accused-appellant were not complete and do not (Downloaded on 05/03/2022 at 08:57:13 PM) (16 of 16) [CRLA-2047/2017] link to the conclusion that in all human probability, the murder must have been committed by the accused-appellant.
In view of the above discussion, we are of the firm view that the evidence leads pertaining to last seen is apparently incomplete and further the prosecution theory regarding the recovery of blood-stained clothes at the instance of the appellant is totally cooked up in such circumstances, the evidence cannot be read against the accused-appellant.
The trial Court committed an error while appreciating the evidence and recording the finding and guilt against the accused- appellant and convicting him by the impugned judgment which does not stand to scrutiny.
As a consequence, the instant criminal appeal deserves to be and is hereby allowed. Impugned judgment dated 25.10.2017 passed by the Court of Additional Sessions Judge, Ramganj Mandi District, Kota in Sessions case No.28/2016 is hereby quashed and set aside. The accused-appellant is acquitted of all the charges. He is in custody and shall be released from the custody forthwith, if not warranted in any other case.
However, keeping in view the provisions of Section 437A of Cr.P.C, the accused-appellant is directed to furnish a personal bond in the sum of Rs. 50,000/- with a surety of a like amount before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave to Appeal against the present judgment on receipt of notice thereof, the accused-appellant shall appear before the Supreme Court.
(ANOOP KUMAR DHAND),J (PANKAJ BHANDARI),J
PRAVESH/11
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