Deeparam vs State
2021 Latest Caselaw 7328 Raj

                                        (1 of 14)                 [CRLA-131/2020]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
             D.B. Criminal Appeal No. 131/2020

Deeparam S/o Sh. Bharta Ram, By caste Meghwal, aged about
29 years, Resident of Village Kushlapura, Tehsil and Police
Station Bhinmal, District Jalore (Raj.).
(Presently lodged in Central Jail, Jodhpur)
                                                                  ----Appellant
                                   Versus


State Of Rajasthan through Public Prosecutor.
                                                                ----Respondent


For Appellant(s)         :     Mr. Pradeep Shah.
For Respondent(s)        :     Mr. R.R. Chhaparwal, PP.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                             JUDGMENT
Date of Judgment: 16/03/2021

BY THE COURT : (PER HON'BLE MEHTA, J.)

1. The appellant herein has been convicted and sentenced as

below vide Judgment dated 30.07.2020 passed by the learned

Additional Sessions Judge, Bhinmal, District Jalore in Sessions

Case No.46/2012 (C.I.S. No.95/2014):

Offences            Sentences                 Fine              Fine   Default
                                                                sentences
Section 302 IPC     Life                      Rs.10,000/- 5 Months' R.I.
                    imprisonment
Section 364 IPC     Life                      Rs.10,000/- 5 Months' R.I.
                    Imprisonment
Section 392 IPC     7 Years' R.I.             Rs.10,000/- 5 Months' R.I.
Section 201 IPC     7 Years' R.I.             Rs.10,000/- 5 Months' R.I.

All the substantive sentences were ordered to run concurrently.

(2 of 14) [CRLA-131/2020]

2. Being aggrieved of the impugned Judgment, the appellant

has preferred the instant appeal under Section 374(2) Cr.P.C.

3. Brief facts relevant and essential for disposal of the appeal

are noted herein below:

4. A written report (Ex.P/20) came to be lodged by Bhalaram

(PW-5) at the Police Station Bhinmal, District Jalore on

26.07.2012 alleging inter alia that his brother Shankraram used to

operate his Tavera vehicle bearing registration No. RJ-19-UA-4479

on hire. On 20.07.2012 in the evening at about 07.30 PM.,

Shankraram was at the Bhinmal Railway Station. But thereafter,

he could not be traced upon which, Jabra Ram (PW-10) lodged a

Missing Person Report at the Police Station Bhinmal, District

Jalore. On enquiry being made, the informant came to know that

Deeparam S/o Bharta Ram (appellant herein), Ghevaram S/o

Bharta Ram, Narpat Singh S/o Ajab Singh, Satyaveer Singh S/o

Narpat Singh and Chhagandas S/o Gangaram hatched a

conspiracy; engaged Shankraram's taxi with evil intention and in

all probability, Shankraram had been confined somewhere or

might have been killed. When Shankraram was taken away, he

was in possession of a sum of Rs.32,000/- with him.

On the basis of the report aforestated, an FIR No.276/2012

dated 26.07.2012 (Ex.P/82) came to be registered at Police

Station Bhinmal, District Jalore for the offences under Sections

365 and 346 IPC. The investigation was assigned to Dinesh Kumar

(PW-21) SHO, Police Station Bhinmal. The appellant herein was

arrested on 29.07.2012 vide arrest memo (Ex.P/1) wherein, the

time of arrest has been shown as 11.15 AM. The prosecution

(3 of 14) [CRLA-131/2020]

claims that the accused appellant Deeparam gave an information

to the Investigating Officer under Section 27 of the Indian

Evidence Act which was recorded in memorandum (Ex.P/83)

prepared at 11.55 AM. whereby, the accused offered to take the

Investigating officer to the village Sanwarda where the dead body

of Shankraram was buried after he had been murdered. The

prosecution further claims that in furtherance of such information,

the Investigating Officer, proceeded to the village Sanwarda and

the dead body of Shankraram was dug out from a pit pointed out

by the accused appellant in presence of the SDM Smt. Chanchal

Verma (PW-20). This procedure was recorded in memorandum

(Ex.P/15) prepared on 29.07.2012 at 02.00 PM. The Fard Surathal

Lash of Shankraram was recorded in memorandum Ex.P/16. The

Fard Panchnama Lash was recorded in memorandum Ex.P/17. It

may be stated here that none of these three documents bear the

signatures/ thumb impression of the appellant herein.

Be that as it may. The remaining accused persons namely

Ghevaram S/o Bharta Ram, Narpat Singh S/o Ajab Singh,

Satyaveer Singh S/o Narpat Singh and Chhagandas S/o Gangaram

(acquitted after trial), were also arrested in this case. It is alleged

that call details of mobile phones of the accused were collected.

The Investigating Officer Dinesh Kumar (PW-21) further claims to

have recorded the information of the accused-appellant under

Section 27 of the Indian Evidence Act vide memorandum

(Ex.P/84) dated 30.07.2012 on the strength whereof, the place

where the Tavera vehicle was looted, was verified vide

memorandum (Ex.P/4) dated 02.08.2012. The accused Sherin

Khan was arrested on 27.02.2012 vide arrest memo (Ex.P/7) and

acting on the information provided by him to the I.O. under

(4 of 14) [CRLA-131/2020]

Section 27 of the Indian Evidence Act (Ex.P/88), the place where

the Tavera vehicle was abandoned after the incident, was verified.

It may be stated that the allegedly looted Tavera vehicle bearing

registration No. RJ-19-UA-4479 was found lying abandoned

somewhere in Nimbahera and was seized by Chauthmal Jakhar

(PW-23), SI Police Station, Nimbahera under Section 102 Cr.P.C.

vide memo (Ex.P/97) on 26.07.2012. After concluding the

investigation, a charge-sheet came to be filed against Deeparam

(appellant herein), Vagta Ram, Chhagan Das and Narpat Singh for

the offences under Sections 364, 302, 201, 392 and 120B IPC and

as against the accused Sherin Khan for the offence under Section

411 IPC in the court concerned. Charges were framed against the

accused in the above terms. They pleaded not guilty and claimed

trial. The prosecution examined as many as 26 witnesses and

exhibited 99 documents to prove its case. The accused, upon

being questioned under Section 313 Cr.P.C., denied the

prosecution allegations and claimed to be innocent. Two witnesses

were examined and 24 documents were exhibited in defence.

Upon hearing the arguments advanced by the prosecution

and the defence counsel and, after appreciating the evidence

available on record, the learned trial court proceeded, to acquit

the other accused persons but convicted the accused appellant for

the offences under Sections 302, 364, 392 and 201 IPC and

sentenced him as above. Hence this appeal.

5. The gist of the findings recorded by the trial court for

convicting the accused appellant is reproduced hereinbelow for the

sake of ready reference:-

(5 of 14) [CRLA-131/2020]

"53- i=koyh ij vkbZ mijksä leLr lk{; dk ;fn ge foospu ,oa fo'ys"k.k djs rks çdj.k esa vfHk;kstu i{k dh vksj ls eqyfte nhikjke ls vfHkj{kk ds nkSjku mlls izkIr nQk 27 dh lwpuk ds vuqlj.k esa mldh fu'kknsgh ls mldh mifLFkfr esa e`rd 'kadj dh yk'k cjken gksuk lkfcr gksrk gS vkSj e`rd 'kadj dh mä yk'k lqulku txg ij xìk [kksndj feêh esa xkM+h tkuk i=koyh ij vkbZ QnZ cjkenxh yk'k çn'kZ ih&15 ls lkfcr gksrk gSA ;g Li"V gS fd eqyfte nhikjke gh mä yk'k dks ogka xkM+s tkus dk rF; tkurk Fkk] blh dkj.k mlus mä yk'k viuh fu'kknsgh ls cjken djokbZA eqyfte }kjk lqulku txg yk'k dks xkM+uk vkSj feêh ds vanj xkM+dj fNikuk mlds }kjk e`rd 'kadj dh gR;k ds i'pkr~ yk'k dks xkMdj lk{; foysi ¼fNiko½ Lo;a dks n.M ls cpkus ds vk'k; ls fd;k] ;g Hkh lkfcr gksrk gSA

54- i=koyh esa tks lk{; vkbZ gS mlus Lo;a e`rd ds HkkbZ ih-M- 5 Hkykjke o ih-M- 9 iquekjke] Hkkuts ih-M- 10 tcjkjke o ih-M- 24 rstkjke us Vosjk okgu la- vkj-ts-19 ;w-,- 4479 e`rd }kjk VSDlh ij pyk;k tkuk vkSj Hkhueky esa VSDlh LVs.M ij [kM+s gksus ds rF; dks lkfcr fd;k gSA bl laca/k esa i=koyh ij vfHk;kstu dh vksj ls çkjaHk ls gh ;g crk;k tk jgk gS fd eqyftu Vosjk xkM+h çkr djuk pkgrk Fkk] blfy, mUgksaus dbZ txg Vosjk xkM+h dh ryk'k dh rc Hkhueky esa mä Vosjk xkMh feyus ij ys tkuk crk;k gSA bl laca/k esa vfHk;kstu dh vksj ls çLrqr xokg ih-M- 24 rstkjke us Li"V :i ls lk{; esa crk;k fd mlus tc e`rd 'kadj dks Qksu fd;k rc 'kadj us igys ,y ,e ch pkSjkgs ij] vxyh ckj Qksu djus ij eksdylj gksuk vkSj ckn esa flokuk vkSj lenM+h gksdj vkus dh ckr mls crkbZ Fkh] ftlls Li"V gS fd e`rd 'kadj Vosjk xkM+h ysdj x;k Fkk vkSj eqyfte nhikjke dk vk"k; e`rd "kadj dh Vosjk xkMh dks izkIr djuk Fkk] blfy, Vosjk xkM+h izkIr djus ds fy, eqyfte nhikjke us "kadj dh gR;k djus ds vk"k; ls iwoZ esa fdjk, ij mDr Vosjk ogku dks ysdj x;k vkSj mlds ckn Vosjk okgu e`rd "kadj ls ywVdj e`rd "kadj dk jLlh ls xyk ?kksaVdj mldh gR;k dh xbZ vkSj gR;k dj "ko dks lk{; ds fNiko djus ;k lk{; feVkus ds vk"k; ls lkaojM+k xkao ds [kkj lqulku txg ij xkM+kA

55- i=koyh ij eqyfte nhikjke dk "kadj dh gR;k dkfjr djus dk vk"k; o gsrqd D;k Fkk] ;g Hkh Li'V gS fd eqyfte nhikjke Vosjk okgu izkIr djuk pkgrk Fkk] ftl ds fy, mlus Vosjk dks ywVk vkSj blh vk"k; ls mldk vigj.k dj mldh gR;k dh xbZ ftlls eqyfte nhikjke dk e`rd "kadj dh gR;k dkfjr djus dk gsrqd Vosjk okgu izkIr djuk gksuk Hkh lkfcr gksrk gSA eqyfte nhikjke dh fu"kknsgh ls e`rd 'kadj dh yk'k cjken gqbZ gS vkSj iksLVekVZe fjiksVZ ls Hkh e`rd 'kadj dh e`R;q jLlh ls xyk ?kksaVus ls gksuk lkfcr gksrk gSA

(6 of 14) [CRLA-131/2020]

56- vc ;fn ge i=koyh ij vU; eqyfteku ds laca/k vkbZ lk{; dks ns[ks rks tSlk fd mij foosfpr fd;k tk pqdk gS fd eqyfte oxrkjke ls cjken eksckbZy e`rd 'kadj dk gksuk lkfcr ugh gksrk gS] eksckbZy dh igpku lkfcr ugh gksrh gS ,oa u gh e`rd ds eksckbZy ds vkbZ-,e-bZ-vkbZ- uacj Hkh çLrqr fd;s] u gh e`rd ds uke dh lhe ftldk çFke lwpuk fjiksVZ esa vadu gS] mldh dksbZ d‚y fMVsy çkIr dh xbZA yk'k cjken gksus ds LFkku dk ekSdk vuqla/kku vf/kdkjh }kjk oxrkjke dks fu'kknsgh ls ns[kk] mlls iwoZ gh vuqla/kku vf/kdkjh }kjk ?kVukLFky dk ekSdk ns[kk tk pqdk FkkA eqyfteku ujir] Nxunkl o nhikjke ds laca/k esa d‚y fMVsy is'k dh gS] ml ckcr~ /kkjk 65 ch Hkkjrh; lk{; vf/kfu;e dk çek.k&i= çLrqr ugha fd;k gSA eqyftu Nxunkl] 'ksjhu[kka] nhikjke o ujir mä Vosjk okgu ysdj mn;iqj 'ksjhu[kka dks cspus x;s gks] ;g Hkh lkfcr ugha gksrk gSA Vksy ukds dh jlhn vfHk;kstu }kjk lkfcr ugh djokbZ xbZ gSA eqyfte Nxunkl] 'ksjhu[kka] nhikjke o oxrkjke lHkh ,d lkFk mn;iqj ds ikl feyuk vkSj okgu dks cspus ckcr~ dksbZ Hkh p'enhn xokg vFkok nLrkosth lk{; vFkok ifjfLFkfrtU; lk{; vfHk;kstu dh vksj ls lkfcr ugha djokbZ gS] ftlls Vosjk okgu 'ksjhu[kka dks cspku djuk lkfcr ugha gksrk gS] u gh ,d gh LFkku ij mudh mifLFkfr lkfcr gksrh gSA eqyfte 'ksjhu[kk dh d‚y fMVsy Hkh çLrqr ugha dh gSA

57- çdj.k esa vfHk;kstu dk izkjaHk ls gh ;g dguk jgk gS fd bl izdj.k esa nhikjke] oxrkjke] Jo.k] gjpan us Vosjk xkM+h ywVus dh ;kstuk cukbZ] ftl ds fy, os tkyksj vk;s] tkyksj esa xkM+h ugha feyus ij Hkhueky vk;s vkSj jkf= foJke djus ds i"pkr nhikjke us e`rd "kadj ls Vosjk xkM+h fdjk;s ij yh vkSj Hkhueky ls jokuk gq, rFkk lkaojM+k igwapus ij oxrkjke] Jo.k o nhikjke us "kadj dk jLlh ls xyk ?kksVadj mldh gR;k dh vkSj Vosjk xkM+h ywV yh vkSj ckn esa lR;ohj o Nxunkl fljksgh vk;s tgka ls mDr Vosjk dks lR;ohj] Nxunkl] oxrkjke] Jo.k o nhikjke us "ksjhu[kka dks [email protected]& esa foØ; dhA

58- bl lanHkZ esa vkjksi i= esa Hkh ;gha rF; vafdr gS] fdUrq i=koyh ij eqyfte nhikjke e`rd 'kadj dh Vosjk xkMh çkIr djuk pkgrk Fkk] blfy, mlus e`rd 'kadj dh gR;k dkfjr djus ds vk'k; ls mldk vigj.k dj e`rd dks ys tkuk vkSj mldh gR;k dj xkM+h ywV ysuk vkSj mldh yk'k xkM+ nsuk rks lkfcr gksrk gS] fdUrq eqyfte nhikjke ds lkFk vU; eqyfteku dk Hkh e`rd 'kadj dh gR;k ds ç;kstu ls vigj.k dj ywV djuk vkSj gR;k dkfjr dj gR;k ds i'pkr yk'k dks xkMdj lk{; dk foyksi ¼fNiko½ djus ds "kM;U= esa eqyfteku Nxunkl] ujir o oxrkjke 'kkfey jgs gks] ;g vfHk;kstu viuh lk{; ls lansg ls ijs lkfcr ugh dj ik;k gS] bl dkj.k gR;k ds ç;kstu ls vigj.k djuk]

(7 of 14) [CRLA-131/2020]

ywV djuk] gR;k djkuk o lk{; ds fNiko ckcr~ eqyftu nhikjke ds lkFk vU; eqyfteku dk "kM;U= jgk gks] ;g lkfcr ugh gksrk gSA

59- bl çdkj mijksä lk{; ds foospu o fo'ys"k.k ls eqyfte nhikjke ds lkFk vU; eqyfteku dk gR;k] gR;k ds ç;kstu ls vigj.k o ywV ,oa lk{; ds foyksiu ckcr~ "kM;U= jgk gks] ;g lkfcr ugha gksrk gS vkSj eqyfteku ds fo:) vkbZ lk{; ds mijksä foospu ds vuqlkj eqyfte oxrkjke] ujirflag vkSj Nxunkl ds fo#) vfHk;kstu mu ij vkjksfir vijk/k /kkjk 364] 302] 392] 201 o 120 ch Hkkjrh; naM lafgrk rFkk eqyfte 'ksjhu[kka ds fo#) vkjksfir vijk/k /kkjk 411 Hkkjrh; naM lafgrk lansg ls ijs lkfcr djus esa vlQy jgk gS] bl dkj.k mijksä pkjksa eqyfteku mijksä vkjksfir vijk/k ls nks"keqä fd;s tkus ;ksX; ik;s tkrs gSA

60- vfHk;kstu i=koyh ij vkbZ viuh -< lk{; ls ;g lkfcr djus esa lQy jgk gS fd eqyfte nhikjke] e`rd 'kadj dk Vosjk okgu çkIr djus ds vk'k; ls mldh gR;k djus ds ç;kstu ls çoapukiw.kZ mik; ls mls vigj.k dj ys x;k vkSj mldh Vosjk xkM+h dks ywVdj "kadj dk jLlh ds Qans ls xyk ?kksaVdj mldh gR;k dkfjr dhA iksLVekVZe fjiksVZ ls Hkh e`rd dh e`R;q ckgjh ncko nsdj "okl jksduk lkfcr gqvk gS rFkk eqyfte }kjk gR;k ds i"pkr~ mldh yk"k dks xkMdj lk{; foyksi ¼fNiko½ Lo;a dks n.M ls cpkus ds vk"k; ls fd;kA fdUrq eqyfte nhikjke dk vU; eqyfteku ds lkFk 'kM;U= gks ,slh 'kM;U= ds ckjs esa dksbZ Hkh lk{; i=koyh ij ugha vkus ls eqyfte nhikjke vkjksfir vijk/k /kkjk 120ch Hkkjrh; naM lafgrk ls nks'keqDr gksus ;ksX; gS ,oa vkjksfir vijk/k /kkjk 364] 302] 392 o 201 Hkkjrh; naM lafgrk esa nks'kf) gksus ;ksX; ik;k tkrk gSA"

6. At this stage, it would be fruitful to state that after the dead

body of Shankraram was dug out, the same was subjected to

postmortem by a Medical Board of which Dr. Jasraj Chheepa (PW-

18) was a member. The dead body was stressed up by a rope.

After conducting autopsy, the Board opined that the cause of

death of Shankraram was mechanical asphyxia. The postmortem

report was recorded as Ex.P/36 and the opinion regarding cause of

death was recorded in memo Ex.P/37.

(8 of 14) [CRLA-131/2020]

7. Shri Shah, learned counsel representing the appellant,

vehemently and fervently contended that there is no evidence

worth the name on the record of the case so as to uphold the

conviction of the appellant as recorded by the trial court. He urged

that the proceedings whereby, the Investigating Officer claims to

have recovered the dead body of Shankraram at the instance of

the accused appellant, are totally fabricated. In this regard, he

drew the Court's attention to the statement of SDM Smt. Chanchal

Verma (PW-20) in whose presence and supervision, the entire

procedure of digging out of the dead body was undertaken. Shri

Shah pointed out that the Executive Magistrate stated that at

about 8 O' clock, she received a call from the District Collector,

Barmer regarding a dead body being buried in the village

Sanwarda and soon thereafter, she proceeded to the spot. Shri

Shah urged that as the information regarding the dead body had

already been received in the early morning i.e. 8.00 AM on

29.07.2012, the procedure allegedly undertaken by the

Investigating Officer recording arrest of the accused at 11.15 AM

vide arrest memo (Ex.P/1); recording his information under

Section 27 of the Indian Evidence Act vide memorandum

(Ex.P/83) at 11.55 AM and then showing recovery of the dead

body at the instance of the accused in furtherance of such

information at 02.00 PM, is totally fabricated and tainted. He

submitted that other than the circumstance of recovery of dead

body, there is no material whatsoever on the record of the case so

as to connect the appellant with the crime because the allegedly

looted vehicle was not recovered at the instance of the accused

appellant and no witness examined during trial claimed to have

seen the appellant with the deceased at any point of time before

(9 of 14) [CRLA-131/2020]

the dead body was discovered. He further submitted that the

three material documents viz. the memorandum of digging out of

the dead body (Ex.P/15), Fard Surathaal Lash (Ex.P/16) and Fard

Panchnama Lash (Ex.P/17), do not bear the signature/thumb

impression of the accused appellant. He submitted that had it

been the case that the accused appellant was responsible for the

discovery of the dead body, then the Investigating Officer would

have definitely taken the signature/thumb impression of the

accused on these documents. He drew the Court's attention to the

deposition of the Executive Magistrate Smt. Chanchal Verma (PW-

20) who stated in her cross-examination that she did not see the

accused Deeparam present at the spot on the day when the dead

body was dug out in her supervision. He submitted that the

conviction of the accused appellant as recorded by the trial court

is totally unjustified because there is no evidence on record of the

case so as to connect him with the alleged crime and thus, the

appeal be accepted and the impugned Judgment should be

quashed and set aside.

8. Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by the

appellant's counsel and urged that the prosecution has proved its

case as against the accused appellant by clinching and cogent

links of circumstantial evidence and hence, no interference is

called for by this Hon'ble Court in the impugned Judgment which

deserves to be affirmed.

                                         (10 of 14)               [CRLA-131/2020]



9.   We    have    given     our     thoughtful         consideration   to   the

submissions advanced at bar and have gone through the material

available on record.

10. On going through the Judgment of the trial court and the

entire record, it is an admitted position that the case of

prosecution is based purely on circumstantial evidence. As per the

FIR (Ex.P/82), Shankraram went missing from the railway station.

None of the witnesses examined, during the investigation or trial,

stated that the deceased and the appellant were seen together

anytime before Shankraram's disappearance or before discovery of

the dead body. Rather, the Investigating Officer Dinesh Kumar

(PW-21) admitted in his cross-examination that there was no

independent/ substantive evidence to show that Deeparam or the

other accused persons, had murdered Shankraram. He tried to

explain that the case was found proved on the basis of call details

and other links of circumstantial evidence. However, the trial court

did not rely upon the call details to support its findings.

It may be stated here that the motive for commission of the

offence is stated to be that the appellant wanted to loot the Tavera

vehicle of deceased Shankraram. However, as per the evidence of

Chauthmal Jhakhar (PW-23), posted as in-charge of the Police

Station Nimbahera, the Tavera vehicle was found lying abandoned

in the jurisdiction of the Police Station Nimbahera and was seized

by him under Section 102 Cr.P.C. on 26.07.2012 vide memo

(Ex.P/97). Thus, there is no material to link the appellant with the

allegedly looted Tavera vehicle of Shankraram. It may be stated

here that, the information recorded by the SHO under Section 27

of the Indian Evidence Act (Ex.P/84) as per which, the accused

(11 of 14) [CRLA-131/2020]

divulged that he could point out the place where the Tavera

vehicle was looted from the deceased and the so called pointing

out of such place by the accused, would be inconsequential for the

simple reason that no incriminating material/ evidence whatsoever

was found at the place pointed out by the accused. Therefore, the

prosecution is left with the sole circumstance of recovery of the

dead body of Shankraram allegedly made at the instance of the

accused appellant. In this regard, the evidence of Smt. Chanchal

Verma, the Executive Magistrate (PW-20), needs to be considered

and relevant extracts therefrom are reproduced hereinbelow for

the sake of ready reference:-

"eSa fnukad 29-07-12 dks mi[k.M vf/kdkjh flokuk ds in ij rSukr FkhA ml jkst lqcg ftyk dysDVj ckMesj dk Qksu vk;k Fkk vkSj bl izdj.k ds ?kVuk dh tkudkjh nh FkhA eSua s Fkkukf/kdkjh ls okjnkr ds ckjs esa tkuus dh dksf"k"k dh rFkk Qksu djus gh okyh Fkh rc rd Fkkukf/kdkjh lenMh rFkk Hkhueku dk Hkh Qksu vk x;k Fkk vkSj eq>s xkao lkojMk esa fdlh yk"k ds ckjs esa crk;k vkSj eq>s eksds ij tkus ds fy, igqapus dk fuosnu fd;kA ftl ij eSa ekSds ij igaqph FkhA ekSds ij lenMh o Hkhueky ds iqfyl okys fey x;s Fks] xkao ds yksxksa dh Hkh dkQh HkhM FkhA e`rd ds fj"rsnkj Hkh Hkhueky ls ekSds ij vk;s gq;s FksA Fkkukf/kdkjh lenMh o Hkhueky us eq>s crk;k fd lafnX/k vijk/kh us bl txg ij ,d O;fDr dh yk"k x<h gksus dh fu"kkansgh dh gSA ----------------------------

dySDVj lkgc dk Qksu ySM a ykbu uEcj ls esjs eksckby ij vk;k FkkA dysDVj lkgc dk Qksu lqcg djhc vkB cts vk;k FkkA dysDVj lkgc dk Qksu vkus ds ckn esa dysDVj lkgc ds funsZ"kkuqlkj ?kVuk ds ckjs esa tkudkjh yh FkhA -------------------------------------------------------- eSa tgka ij "ko x<k gqvk Fkk ogka ij djhc 11 cts igqp a x;h FkhA tgka rd eq>s vkt ;kn gS] iqfyl us "ko fudkyus ds fy, eq>s ,d izkFkZuk i= fn;k FkkA ml ij "ko ckgj fudkyus dk vkns"k Hkh ,l ,p vks Hkhueky dks fn;k FkkA fQj dgk fd dksbZ LVkQ ekStwn ugha Fkk blfy;s vyx ls dksbZ

(12 of 14) [CRLA-131/2020]

vkns"k ugha cuk;k Fkk rFkk ekSf[kd vkns"k fn;k FkkA eqyfte dk uke eq>s Fkkukf/kdkjh us crk;k FkkA vkt eqyfte esjs lkeus dk vk tkos rks eSa ugha igpku ldrhA ;g lgh gS fd eSua s ml jkst nhikjke dks ugha ns[kk FkkA"

(Emphasis supplied)

From a bare perusal of the statement of the Executive

Magistrate, it becomes crystal clear that she had been informed by

the District Collector, Barmer regarding the dead body being

buried in the village Sanwarda at about 8 O' clock in the morning.

Thus, the investigation officer's theory regarding the dead body of

Shankraram having been discovered in furtherance of the

information allegedly provided by the accused appellant under

Section 27 of the Evidence Act is totally blown apart because the

accused appellant was shown arrested in this case on 29.07.2012

at 11.15 AM vide arrest memo (Ex.P/1) and his information under

Section 27 of the Indian Evidence Act (Ex.P/83) was purportedly

recorded at 11.55 AM at the Police Station Bhinmal. The

memorandum (Ex.P/15) which was prepared after the dead body

had been dug out, bears the time 02.00 PM. The Investigating

Officer Shri Dinesh Kumar (PW-21) admitted in his cross-

examination that Sanwarda is at a distance of about 150 Kms.

from Bhinmal. Therefore, the theory that the dead body was dug

out on the basis of the information of the accused recorded in

(Ex.P/83) at 11.55 AM, is totally falsified. It was practically

impossible for the SHO and his team to have reached Sanwarda

before 02.00 PM. As the recovery memo (Ex.P/97) was prepared

at 02.00 PM and presumably, the process of digging out the dead

body must have started much earlier. The SDM Smt. Chanchal

(13 of 14) [CRLA-131/2020]

Verma stated that she reached the spot at 11.00 AM and the SHO,

Police Station Bhinmal was already present there. In addition

thereto, the fact remains that none of the three material

documents viz. (i) memorandum of digging out of the dead body

of Shankraram (Ex.P/15), (ii) Fard Surathal Lash of Shankraram

(Ex.P/16) and (iii) Fard Panchnama Lash of Shankraram

(Ex.P/17), bear either the signature or the thumb impression of

the accused appellant. This glaring omission leads to an irrefutable

conclusion that the dead body was, as a matter of fact, not

discovered or dug out in furtherance of the information provided

by the accused appellant. The admission appearing in the cross-

examination of the SDM Smt. Chanchal Verma (PW-20) that the

appellant was not present at the spot when the dead body of

Shankraram was recovered, fortifies this conclusion. Apart from

the circumstance of discovery of the dead body, there is nothing

on the entire record of the case which can connect the appellant

with the alleged crime. We are therefore thoroughly convinced

that, the Investigation Officer Dinesh Kumar (PW-21) fabricated

evidence so as to implicate the appellant in this case and has

committed gross misconduct. At the same time, we are compelled

to note that the approach of the learned trial court while

appreciating evidence and recording the questioned findings for

convicting the appellant in this case, was grossly perverse,

perfunctory and laconic on the face of it. The impugned Judgment

does not stand to scrutiny.

It is really unfortunate to note that in a case based on totally

fabricated evidence, the appellant had to suffer incarceration of

more than eight years. The priceless eight years spent behind bars

(14 of 14) [CRLA-131/2020]

by the appellant, who was just 21 years of age on the date of his

arrest, can never be compensated.

11. Accordingly, the appeal succeeds and is hereby allowed. The

impugned Judgment dated 30.07.2020 passed by the learned

Additional Sessions Judge, Bhinmal, District Jalore in Sessions

Case No.46/2012 (C.I.S. No.95/2014) is hereby quashed and set

aside. The appellant Deeparam S/o Sh. Bharta Ram is acquitted of

the charges. The appellant is in custody. He shall be released from

prison forthwith if not wanted in any other case.

12. However, keeping in view the provisions of Section 437-A

Cr.P.C., the appellant is directed to furnish a personal bond in the

sum of Rs.15,000/- and a surety bond in the like amount before

the learned trial court, which shall be effective for a period of six

months to the effect that in the event of filing of a Special Leave

Petition against the present judgment on receipt of notice thereof,

the appellant shall appear before the Supreme Court.

13. A copy of this order be forwarded to the Director General of

Police, State of Rajasthan for taking appropriate action against the

Investigating Officer.

14. A copy of this order shall also be placed before Hon'ble the

Inspecting Judge of District Jalore.

15. Record be returned to the trial court forthwith.

                                   (DEVENDRA KACHHAWAHA),J                                    (SANDEEP MEHTA),J

                                    Tikam Daiya/Devesh Thanvi/-









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