Rajasthan High Court - Jodhpur

Ganesh Lal vs State on 25 March, 2021

Bench: Sandeep Mehta, Devendra Kachhawaha

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 607/2016

Ganesh Lal S/o Shri Bheru lal, Aged about 27 years, B/c Prajapat (Kumhar), R/o H-164 R.K. Colony Bhillwara. (Presently lodged in Central jail, Ajmer).

                                                                   ----Appellant
                                    Versus
State of Rajasthan, through PP
                                                                 ----Respondent


For Appellant(s)          :     Mr. R.S. Gill
For Respondent(s)         :     Mr. R.R. Chhaparwal, PP



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

                                 Judgment

Date of Pronouncement :-                                  25 /03/2021
Judgment Reserved on :-                                   24/02/2021



(Per Hon'ble Mehta,J.)

The appellant herein has been convicted and sentenced as

below vide judgment dated 28.05.2016 passed by the learned

Additional Sessions Judge No.3, Bhilwara in Sessions Case

No.41/2015 (23/2010):

Offence Sentences Fine Fine Default sentences Sec. 302 IPC Life Imprisonment Rs.1,000/- 1 Month's Additional Simple Imprisonment

Being aggrieved of his conviction and sentence, the appellant

has approached this Court by way of this appeal under Section

374(2) Cr.P.C.

(2 of 11) [CRLA-607/2016]

Facts relevant and essential for disposal of the appeal are

noted hereinbelow:

The dead body of one Ladudas Vaishnav who used to serve

in the Ganesh Prajapat Hanumanji Temple, Krishi Upaj Mandi,

Bhilwara, was found lying in an abandoned condition by one

Pyarchand S/o Amraji working as a Guard in the Krishi Upaj

Mandi, Bhilwara. Shri Pyarchand lodged a written report (Ex.P/24)

at the Police Station Subhash Nagar, Bhilwara on 25.09.2009

alleging that some unknown person had hit Ladudas by a stone

and killed him. On the basis of this report, an FIR No.306/2009

(Ex.P/25) came to be registered at Police Station Subhash Nagar,

Bhilwara and investigation was commenced. The dead body of the

victim Ladudas was subjected to postmortem at the Mahatma

Gandhi Hospital, Bhilwara by Dr. Alok Mittal (PW.8) who noticed

presence of six lacerated wounds and one contusion along with

haematoma in tempo-parietal region which led to the death of

Ladudas. Postmortem report (Ex.P/8) was issued by the medical

jurist. During the course of investigation, the Investigating Officer

Om Prakash Verma (PW.20) claims to have collected evidence

suggesting involvement of the appellant Ganesh Lal in the murder

which led to his arrest on 26.09.2009 vide arrest memo Ex.P./7.

The Investigating Officer claims to have interrogated the appellant

and acting on the informations provided to him by the accused

under Section 27 of the Evidence Act (Ex.P/27 & Ex.P/28), a stone

(Ex.P/13) used for hitting the deceased and a shirt (Ex.P/15)

allegedly thrown away by the accused after the murder, were

recovered from near the temple. A charge-sheet was submitted

(3 of 11) [CRLA-607/2016]

against the appellant for the offence under Section 302 IPC in the

court concerned.

As the offence was triable by Court of Sessions, the case was

committed to the Court of Sessions Judge, Bhilwara from where it

was transferred to the Court of Addl. Sessions Judge No.3,

Bhilwara for trial. The prosecution examined as many as 25

witnesses and exhibited 29 documents to prove its case. It may be

stated here that Pyarchand, the first informant who was portrayed

as a witness of last seen during investigation, expired and thus,

his statement could not be recorded in the trial. Be that as it may,

it is alleged that the stone (Ex.P/13) and the shirt (Ex.P/15)

purportedly recovered at the instance of the accused and the

blood smeared soil (Ex.P/2) and the bedding (Ex.P/3) recovered

from the place where the dead body was found, were forwarded to

the Forensic Science Laboratory, Udaipur from where a report

(Ex.P/29) was received as per which, all these articles were found

stained with 'B' group blood. After hearing arguments advanced by

the learned Public Prosecutor and the defence counsel and after

appreciating the evidence available on record, the trial court

proceeded to convict and sentence the appellant as above. Hence,

this appeal.

Shri R.S. Gill, learned counsel representing the appellant

urged that the only evidence against the appellant, on the basis

whereof he has been convicted by the trial court, is in the form of

the recoveries of the blood stained stone (Ex.P/13) and the blood

stained shirt (Ex.P/15). However, as per Shri Gill, these recoveries

(4 of 11) [CRLA-607/2016]

were effected from a place which was open and accessible to all

and sundry. He urged that the recoveries are totally fabricated and

do not inspire confidence and hence, there is no evidence worth

the name on the record of the case to connect the appellant with

the crime. He further submits that the trial court at para No.30 of

its judgment observed without any basis that the prosecution gave

proof regarding the accused-appellant having been seen near the

place of incident soon after the murder which constituted evidence

of last seen. He urges that the learned trial court placed reliance

on totally inadmissible evidence because the allegation pertaining

to the appellant being seen near the Hanuman temple was

recorded in the FIR (Ex.P/25) lodged by Pyarchand, which cannot

be considered as a substantive piece of evidence, as Pyarchand

expired in the meanwhile and was not examined as a witness. He

urged that there is not an iota of evidence on the record of the

case so as to connect the appellant with the alleged crime and

thus, he deserves to be acquitted of the charges.

Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by the

appellant's counsel and contended that the prosecution has proved

the incriminating circumstances of last seen and blood stained

recoveries against the appellant and hence, the trial court was

justified in convicting the appellant for the charge of murdering

Ladudas Vaishnav.



      We   have   given      our      thoughtful        consideration      to   the

submissions   advanced at bar and have gone through                             the


                                        (5 of 11)               [CRLA-607/2016]

impugned judgment, and minutely re-appreciated the evidence

available on record.

Suffice it to say that the prosecution case is based entirely

on circumstantial evidence. The FIR (Ex.P/25) was lodged by

Pyarchand wherein, an allegation was levelled that he saw the

accused Ganesh Lal coming out of the gate of the Hanumanji

Temple and that in the morning, the dead body of Ladudas was

seen lying near the temple. However, Pyarchand was admittedly

not examined in evidence during the trial because he had passed

away. Contents of the FIR (Ex.P/25) definitely do not constitute a

substantive piece of evidence, as has been held by Hon'ble the

Supreme Court of India in the case of Pandurang Chandrakant

Mhatre vs. State of Maharashtra : (2009) 10 SCC 773.

We are of the firm view that as no witness examined during

trial gave evidence of last seen, the learned trial court has

committed a grave error of law while holding at para No. 30 of the

impugned judgment that, the prosecution led evidence to prove

that the appellant was seen coming out from the gate of the

temple after the murder. This conclusion is based on the contents

of the FIR which cannot be read as the informant could not be

examined at the trial. The only other piece of evidence which the

prosecution relied upon to bring home of the accused was in form

of the recoveries viz., a the blood stained stone (Ex.P/13) and the

blood stained shirt (Ex.P/15) allegedly effected by the IO Om

Prakash (PW.20) at the instance of the appellant herein. In this

(6 of 11) [CRLA-607/2016]

regard, the evidence of the IO needs to be referred to, which is

reproduced hereinbelow:-

"eq[; ijh{k.k %&

......vfHk;qDr x.ks"k yky dh 27 ,foMsal ,DV dh bRryk vuqlkj ?kVuk esa ij;qDr ,d cMk iRFkj tCr fd;k x;kA --------------- izdj.k esa tCr "kqnk [kqu vkyqnk iRFkj dh cjkenxh LFky dk uD"kk ekSdk dh QnZ eksrfcjku ds le{k cukbZ xbZ tks izn"kZ ih 14 gS ftl ij bZ ls ,Q esjs gLrk{kj gSA ?kVuk ds le; vfHk;qDr x.ks"kyky }kjk iguh gqbZ ,d "kVZ Lrsekyh cSajx xgjk dkyk fiyh /kkjhnkj ftl ij] [kqu ds /kCcs yxs gq, Fks dks vfHk;qDr x.ks"kyky dh bRryk ij crkSj otg lcqr cjken dj izn"kZ ih 15 eqfrZc dh xbZ ftl ij lh ls Mh esjs gLrk{kj gSA

---------------------------------- nkSjkus vuqla/kku vfHk;qDr x.ks"kyky }kjk fnukad 27-09-09 dks ?kVuk LFky dh fu"kknsgh ckcr LosPNk iwoZd tks bRryk nh xbZ Fkh tks fd izn'kZ ih 26 gS ftl ij , ls ch esjs gLrk{kj gS vfHk;qDr x.ks"kyky }kjk /kkjk 27 lk{; vf/kfu;e ds vuqlkj nh xbZ LosPNk ls bRryk ckcr ?kVuk esa iz;qDr cjken djkus ds laca/k esa QnZ izn'kZ 27 eqfrZc dh xbZ ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh vfHk;qDr x.ks"kyky ds gLrk{kj gSA nkSjkus vuqla/kku vfHk;qDr x.ks"k yky }kjk /kkjk 27 lk{; vf/kfu;e ds vuqlkj nh xbZ LosfPNd bRrsyk ckcr Lo;a }kjk ?kVuk ds oDr igus gq, "kVZ cjkenxh tks mlus efUnj ds ikl fNikuk crk;k dh QnZ izn'kZ ih 28 gS ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh vfHk;qDr x.ks"kyky ds gLrk{kj gSA---------------------------------------

In cross-examination, the IO admitted that no time was

mentioned on the information memos (Ex.P/27 & Ex.P/28) in

furtherance whereof, the stone and the shirt were allegedly

recovered. He further stated that all these articles were not in a

sealed condition when the same were exhibited in the Court. He

also admitted that there is no reference in the charge-sheet as to

the motive for which, the appellant murdered the deceased

Ladudas. At this stage, the Investigating Officer suo moto stated

that during the interrogation, the accused alleged that he was

forced to establish homosexual relationship with the deceased and

for this reason, the incident took place.

(7 of 11) [CRLA-607/2016]

From the evidence of the medical jurist Dr. Alok Mittal

(PW.8), who proved the Postmortem Report (Ex.P/8), it is well

established that the cause of death of the deceased was homicidal

in nature. Lacerated wounds were found on his body which

resulted in fracture of the skull bones and proved instantaneously

fatal. Thus, the fact that Ladudas was murdered by mechanical

violence is duly proved by the medical evidence.

From a perusal of the statement of the Investigating Officer

Om Prakash, (PW.20), it is clear that while deposing on oath, he

did not specifically narrate before the Court as to what exactly was

stated to him by the accused while divulging the informations

recorded under Section 27 of the Evidence Act. This Court

considered this aspect of appreciation of evidence in the case of

Daau Ram v. State of Rajasthan : D.B. Criminal Appeal

No.87/2019, decided on 27.05.2019, and held that a

memorandum under Section 27 of the Evidence Act is not a

substantive piece of evidence in itself and for proving the contents

thereof, the actual words spoken by the accused have to be

narrated by the officer recording information while deposing

before the Court and in the event of failure to do so, the

informations cannot be read in evidence.

That apart, we are duly satisfied that the Investigating

Officer's statement regarding the procedure of recoveries is totally

laconic and perfunctory. A perusal of the evidence of the

Investigating Officer Om Prakash (PW.20), extracts whereof have

(8 of 11) [CRLA-607/2016]

been reproduced hereinabove, it is apparent that regarding the

recoveries, he made a bald statement that a big stone used in the

incident was recovered in furtherance of the information (Ex.P/27)

given by Ganesh Lal under Section 27 of the Evidence Act, the

dimensions whereof were 35 cm x 19 cm x 14 cm vide seizure

memo Ex.P/13. Likewise, he also stated that the shirt worn by

the accused at the time of the incident, which was stained with

blood, was recovered and seized vide memo Ex.P/15. The

Investigating Officer did not state as to when and from where, the

recoveries were so effected. Thus, the evidence of recoveries do

not inspire confidence and cannot be read in evidence against the

accused.

Thus, we are of the firm opinion that the trial court

committed grave error of law in placing reliance on the evidence of

the IO regarding the informations provided by the accused

(Ex.P/27 & Ex.P/28) in furtherance whereof, the recoveries were

effected. That apart, on going through the seizure memos Ex.P/13

& Ex.P/15, it is clear that the stone as well as the shirt were found

lying just near the temple, which is an open place accessible to all

and sundry. Thus, these recoveries do not inspire confidence. In

addition thereto, for a moment, the evidence of the blood stained

recoveries is to be believed for argument sake, this is the only

circumstance which have been portrayed by prosecution so as to

bring home the guilt of the accused. Blood stained recoveries

individually cannot constitute a complete chain of circumstances

mandatorily required to establish the charge of murder in a case

based purely on circumstantial evidence. The factum of recoveries

(9 of 11) [CRLA-607/2016]

can only be used to corroborate substantive/other reliable links of

circumstantial evidence which are sufficient to prove the guilt of

an accused. Individually taken, the evidence of blood stained

recoveries would not lead to a conclusive proof of guilt of the

accused. In this regard, reference can be made to the following

observations made by Hon'ble the Supreme Court of India in the

case of Mustkeem vs. State of Rajasthan, AIR 2011 SC

2769:-

"13.It is fully established that the prosecution case is based on circumstantial evidence. In this view of the matter, we have to see if the chain of circumstances was so complete so as to unerringly point the finger only at the Appellants as perpetrators of crime. Before delving into the legal analysis, however, we would like to examine the statements of P.W.8 and P.W.10 in brief.

14.As per the prosecution story, Appellants Mustkeem and Arun had met P.W.10 - Chittar a day before the occurrence, in whose house deceased Ram Pal Yadav, was residing as a tenant, for last 5 to 6 years and he deposed that Appellants Mustkeem and Arun had told him that, that day it would be the last visit of Ram Pal and he will not come to his house again. Similar is the evidence of P.W.9 - Lali Devi, wife of P.W.10. She has repeated the same version as had been deposed by P.W.10- Chittar.

15. P.W.8 - Smt. Supyar deposed that Mustkeem, Arun and Nandu used to visit Ram Pal Yadav regularly as all of them were dealing in illicit liquor trade. On coming to know from Lali Devi that Arun, Mustkeem and Nandu were keen to eliminate Ram Pal Yadav, she had telephonically asked him to meet her at the earliest. When deceased Ram Pal Yadav met Smt. Supyar, she informed him about the intentions of the accused. She also told him that Arun and Mustkeem both had said that it would be the last visit of Ram Pal Yadav to her house as they were planning to eliminate him.

16.Thus, from an appraisal of the evidence of P.W.8, P.W.9 and P.W.10, the Trial Court and the Division Bench of the High Court ruled that prosecution has been able to establish that deceased Ram Pal Yadav and Appellants were all involved in illegal trade of liquor and a day prior to the date of incident, Arun and Mustkeem had expressed their intentions to eliminate Ram Pal to P.W.9 and P.W.10.

17.High Court while considering the Appellants' appeal found this factor as one of the incriminating circumstances

(10 of 11) [CRLA-607/2016]

to eventually hold the Appellants guilty for the aforesaid offence.

18. The other circumstance found against the Appellants by High Court was that, on the basis of the disclosure statements of the Appellants, weapons alleged to be used in the commission of offence and clothes stained with human blood were recovered. In its Judgment, the High Court has discussed in extenso the effect of Section 27 of the Indian Evidence Act (hereinafter shall be referred to as 'Act') and subsequent discovery of the material objects thereafter.

19. On the basis of the report of the serologist, it has come on record that traces of AB blood group were found on the pants and baniyan of the deceased. The prosecution has also averred that Sword and clothes stained with human blood group AB were also recovered at the instance of Appellants, from the places shown by them and known only to them and none others. On account of aforesaid circumstances, the High Court was of the opinion that the chain of circumstances was complete and the completed chain of circumstances pointed the finger for commission of the said offence only by the Appellants.

....

23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. "

As a consequence, we are of the firm opinion that the

prosecution has failed to lead requisite reliable evidence, so as to

establish the guilt of the accused for the charge of murdering

Ladudas Vaishnav. Consequently, there is no escape from the

conclusion that the findings recorded by the trial court in the

impugned judgment while holding the appellant guilty for the

charge of murder of the deceased, are absolutely laconic, baseless

and unsustainable.

(11 of 11) [CRLA-607/2016]

Accordingly, the appeal deserves to be and is hereby

allowed. The impugned judgment dated 28.05.2016 passed by

the learned Additional Sessions Judge, No.3, Bhilwara in Sessions