Arti vs State
2021 Latest Caselaw 17060 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 739/2012

Arti W/o Suresh Kumar, by caste Arora, S/o U.I.T. Colony,
Shyamnagar, Purani Abadi, Sri Ganganagar
(At present lodged in Central Jail, Jodhpur.)
                                                                  ----Appellant
                                   Versus
The State of Rajasthan.
                                                                ----Respondent
                             Connected With
               D.B. Criminal Appeal No. 791/2012
Radhey Shyam S/o Shri Ramesh Chandra, by caste Arora,
resident of Jodhewala, at present tenant near Mohan Singh
Chowk, Purani Abadi, Sri Ganganagar, District Sri Ganganagar
(At present lodged in Central Jail Sri-Ganganagar).
                                                                  ----Appellant
                                   Versus
The State of Rajasthan.
                                                                ----Respondent


For Appellant(s)         :     Mr. B.S. Rathore.
                               Mr. D.S. Thind with
                               Ms. Sapna Vaishnava.
For Respondent(s)        :     Mr. Anil Joshi, PP.



          HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                             JUDGMENT

Judgment pronounced on                 :::             16/11/2021
Judgment reserved on                   :::             04/10/2021



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

1. The appellants Arti and Radheshyam have been convicted

and sentenced as below vide judgment dated 20.07.2012 passed

(2 of 24) [CRLA-739/2012]

by the learned Additional Sessions Judge, No.2, Sri Ganganagar in

Sessions Case No.4/2012:

Offences      Sentences                       Fine               Fine      Default
Under Section                                                    sentences


302 IPC         Life Imprisonment             Rs.5,000/- 6 Months' S.I.


120B IPC        Life Imprisonment             Rs.5,000/- 6 Months' S.I.

All the sentences were ordered to run concurrently

2. Being aggrieved of their conviction and sentences, the

appellants have preferred these appeals under Section 374(2)

Cr.P.C.

3. Since both these appeals arise out of a common Judgment,

they have been heard and are being decided together.

4. Facts relevant and essential for disposal of the appeals are

noted hereinbelow:

5. Shri Vinod Sachdeva (PW-1) submitted a written report

(Ex.P/1) to the SHO, Police Station Kotwali, Sri Gangangar on

23.12.2011 alleging inter alia that his elder brother Suresh Kumar,

aged 38 years, used to live in Housing Board, Shyamnagar with

his wife and children. He used to operate a lorry for selling eggs.

In the night of 22.12.2011 at around 10.33 PM, he received a call

from Mobile of Suresh Kumar (No.7877091535) who spoke in a

frightened tone and stated that some was killing him. Suresh

Kumar repeatedly asked him to come and thereafter, the call got

disconnected. He tried to call Suresh Kumar again but could not

succeed. He immediately picked up his motorcycle, reached the

(3 of 24) [CRLA-739/2012]

house of Suresh Kumar and asked his sister-in-law regarding

whereabouts of Suresh Kumar on which, she informed that Suresh

Kumar had gone out with someone. Shri Vinod Kumar then called

Ashok Kumar, neighbour of Suresh Kumar and he along with his

sister-in-law and Ashok Kumar, started searching for Suresh

Kumar near the Shyam Nagar Puliya and the adjoining area. On

reaching near the bushes, they saw the dead body of Suresh lying

there with deep wounds on his head. He informed the 108

Ambulance. It was specifically alleged in the FIR that some

unknown persons had murdered his brother.

On the basis of this written report, FIR No.584/2011 (Ex.P/2)

came to be registered at the Police Station Kotwali Sri Ganganagar

against the unknown persons for the offence punishable under

Section 302 IPC. The investigation was undertaken by Mangla

Ram, Sub Inspector (PW-15). It may be stated here that even

before the FIR had been registered, a Q.S.T. message had been

received at the City Control Room, Sri Ganganagar regarding a

person having been murdered near the Shyam Nagar Puliya and

Sub-Inspector Mangla Ram had already reached the spot. The

mobile police van was also available at the spot. Vinod Kumar

lodged the written report as above at the police station. The

photography of the dead body and the adjoining areas was

conducted. Blood stained soil and control soil were seized from the

spot. The blood stained cap and the footwear worn by the

deceased were picked up and seized from the spot. A pouch of red

chilli powder was seen lying at the spot and the same was also

seized. The I.O. returned to the Police Station and made entries

(Ex.P/30A and Ex.P/31A) in the Rojnaamcha. It is relevant to

mention here that when the Sub-Inspector Mangla Ram left the

(4 of 24) [CRLA-739/2012]

police station upon receiving the information of the murder, entry

to this effect (Ex.P/34A) had been made at 11.05 pm. The entry

regarding submission of the written report was recorded in the

Rojnaamcha of the Police Station at 12.30 am. The dead body was

forwarded to the Government Hospital, Sri Ganganagar for

autopsy from where the postmortem report (Ex.P/33) was

received. The blood stained clothes of the deceased were collected

from the hospital. The dead body was handed over to the family

members for cremation. On 23.12.2011, statements of witnesses

were recorded. The I.O. claimed that he collected the mobile call

details of the accused Radheshyam, complainant Vinod Kumar and

Arti Devi (wife of the deceased) who was treated as a suspect in

the case. Interrogation was made from the co-accused persons

who allegedly confessed to their guilt whereafter, both were

arrested. The accused Radheshyam allegedly gave an information

(Ex.P/43) to the I.O. regarding concealment of a hammer in the

bushes near the BSNL office. Acting in furtherance of such

information, the accused Radheshyam got an iron hammer with a

wooden handle recovered which was stained with blood and was

thus seized (Ex.P/12). A site inspection plan (Ex.P/13) was

prepared. The accused Arti Devi allegedly gave an information

(Ex.P/44) to the I.O. which was recorded under Section 27 of the

Evidence Act regarding concealment of a hammer in her house at

the UIT Colony. Acting in furtherance of this information, the I.O.

proceeded to the house of the accused Arti Devi and got a

hammerhead recovered which was also stained with blood

(Ex.P/14). A bicycle of which the seat (Ex.P/18), etc. were blood

stained, was got recovered on the basis of the information

(Ex.P/45) provided by the accused Radheshyam to the I.O. under

(5 of 24) [CRLA-739/2012]

Section 27 of the Evidence Act. The accused Radheshyam

allegedly gave another information (Ex.P/46) to the I.O. regarding

having thrown away the mobile phone of Suresh in a field where

wheat crop was standing. The said information was also taken

down into writing and a mobile phone model Nokia 1200 (Ex.P/20)

was recovered in furtherance of such information in which, a sim

No. 7877091535 was available. The blood stained clothes and

shoes (Ex.P/24) allegedly worn by the accused Radheshyam at the

time of the murder were also seized by the I.O. The mobile

phones of Arti Devi as well as Ramesh Chandra (Ex.P/22 and

Ex.P/23 respectively) were seized.

6. After investigation, a charge-sheet came to be filed against

the two accused appellants for the offences punishable under

Sections 302/120B IPC. As the offence of Section 302 was

exclusively triable by court of Sessions, the case was committed to

the court of the Sessions Judge, Sri Ganganagar from where, it

was transferred to the court of the Additional sessions Judge No.2,

Sri Ganganagar for trial where charges were framed against the

appellants herein for the offences under Sections 302 and 120B

IPC. Both the accused appellants pleaded not guilty and claimed

trial. The prosecution examined as many as 16 witnesses and

exhibited 70 documents to prove its case. Upon being confronted

with the allegations set out in the evidence of the prosecution

witnesses, both the accused denied the same and claimed that

they had been falsely implicated and are innocent. No oral

evidence was led in defence and only four documents were

exhibited. After hearing the arguments advanced by the learned

Public Prosecutor and the defence counsel and, appreciating the

(6 of 24) [CRLA-739/2012]

evidence available on record, the learned trial court proceeded to

convict and sentence the appellants as above. Hence this appeal.

7. Learned counsel Shri B.S. Rathore representing the appellant

Arti and learned counsel Shri Thind representing the appellant

Radheshyam, vehemently and fervently urged that the entire

prosecution case is false and fabricated. The evidence of the first

informant Vinod Kumar (PW-1) is totally unbelievable. He has tried

to make wholesale improvements in the story as narrated in the

written report which was lodged against unknown assailants. The

first informant exaggerated the version while deposing in the court

and alleged that he received the phone call of his brother Suresh

who was pleading that Radheshyam was beating him. He also tried

to improve the evidence regarding the disclosure made by Arti

alleging that she stated to him that Suresh Kumar had gone with

Radheshyam. Learned defence counsel urged that there is no

allegation whatsoever in the written report that the informant was

aware regarding the person with whom his brother had gone or

that Arti had informed that Suresh had gone with Radheshyam.

They thus urged that this intentional improvements made by

Vinod Kumar (PW-1) in his evidence completely discredits the

prosecution case bringing its foundation under grave doubt. They

further urged that the evidence of Ashok Kumar (PW-4) that while

he, Vinod Kumar, Arti and Radheshyam were searching for Suresh

Kumar, Arti told him that Suresh had gone with Radheshyam, is

totally unbelievable and is contradicted by the evidence of Vinod

Kumar (PW-1) who did not state anything of the sort in his

testimony. Referring to the statement of Ashok Kumar S/o Sohan

Lal (PW-4), the learned defence counsel urged that this witness

(7 of 24) [CRLA-739/2012]

was portrayed to be a person who had seen Radheshyam taking

away the deceased Suresh Kumar with himself. However, the

conduct of this witness is totally suspicious because even though

the police had started searching for the deceased just after the

incident, he did not come forward to make any such disclosure

before the police team even though he was present at the spot.

Drawing the Court's attention to the statement of Surendra Kumar

(PW-5), learned defence counsel urged that the statement of this

witness further discredits the prosecution case because he gave a

version totally different from what was stated by the other

witnesses and claimed that the two accused Radheshyam and Arti

were involved in some kind of illicit affair and that Shri Suresh

Kumar was eliminated by them to remove the obstacle from their

illicit affair. It was submitted that Vinod Kumar, brother of the

deceased, did not make any allegation whatsoever regarding there

being an illicit affair between the two accused and thus, the theory

portrayed in the statement of Surendra Kumar (PW-5), is totally

unbelievable. It was thus contended that neither the theory of

motive for the murder nor the evidence of last seen is believable.

It was further contended that the call details, which were relied

upon by the trial court for recording the finding of guilt against the

accused, are inadmissible in evidence because firstly, the

ownership of these mobile phones was not established by any

plausible evidence and secondly, the I.O. did not procure the

mandatory certificate under Section 65B of the Evidence Act and

hence, the call details are fit to be discarded. Lastly, learned

defence counsel, discredited the evidence of Sub-Inspector Mangla

Ram (PW-15) on the ground that the entire sequence of

investigation as undertaken by this witness is tainted and hence,

(8 of 24) [CRLA-739/2012]

no reliance can be placed on his evidence and the incriminating

recoveries allegedly made by this witness ought to have been

discarded by the trial court. On these grounds, the appellants'

counsel sought acceptance of the appeals and craved acquittal of

the appellants.

8. Per contra, learned Public Prosecutor opposed the

submissions advanced by the counsel representing the appellants.

They urged that the first informant Vinod Kumar (PW-1) had no

motive whatsoever to falsely implicate the accused in this case.

He gave convincing evidence to the effect that Suresh called him

on his mobile and at that time, he was fervently pleading that

Radheshyam was killing him. This tantamounts to an oral dying

declaration as Suresh was found murdered soon thereafter.

The witness immediately rushed to the house of Suresh Kumar

where, the accused Arti met him. She also disclosed that her

husband had gone with Radheshyam, the appellant herein. In

sequence of these informations, the witness Vinod Kumar, called

Ashok Kumar and both immediately set out in search of Suresh

Kumar. On the way, Radheshyam also met them and made a

charade of joining the search operations whereas, he was well

aware of the victim's fate. Soon thereafter, the police arrived at

the spot and initiated the search operations. The dead body of

Suresh Kumar was recovered from amongst the bushes. The

blood stained soil, blood stained cap of the deceased and his

footwear were picked up from the spot. The two accused persons

were interrogated and after they confessed to the murder, they

were arrested. The I.O. conducted independent and fair

investigation in culmination whereof, the accused got blood

(9 of 24) [CRLA-739/2012]

stained hammers recovered which were used in the murder. The

blood stained articles recovered from the spot, the blood stained

hammers recovered at the instance of both the accused

appellants, the blood stained clothes and footwear recovered at

the instance of the accused Radheshyam and the blood stained

clothes of the deceased were all forwarded to the FSL for

serological examination from where FSL report (Ex.P/65) was

received establishing presence of 'A' Group human blood on all

these articles. The accused did not offer any explanation

whatsoever for being in possession of these blood stained articles

and hence, the presumption of guilt was rightly drawn against

them. They further submitted that the prosecution has given

cogent evidence to the effect that the two accused appellants

were involved in an illicit extramarital affair and that the

culmination thereof led to the murder so as to eliminate the only

stumbling block in the illicit affair between both the accused. He

thus urged that the trial court committed no error whatsoever in

recording conviction of the accused because the evidence led by

the prosecution is totally convincing and unimpeachable. On the

basis of these submissions, they sought dismissal of the appeal

praying for affirmation of the appellants' conviction and sentences

as awarded to them by the trial court.

9. We have heard and considered the submissions advanced at

bar and, have gone through the impugned Judgment. We have

thoroughly re-appreciated the evidence available on record.

(10 of 24) [CRLA-739/2012]

10. Broadly stated, the prosecution has based its case against

the accused on four circumstances:

(1) Motive

(2) Last Seen

(3) Recoveries and

(4) Call Detail Records.

11. Now we propose to examine the evidence led by the

prosecution to prove these incriminating circumstances.

Firstly, we consider the aspect of motive. The best witness

who could have thrown light on this circumstance, would be Vinod

Sachdeva, brother of the deceased who, upon being examined as

PW-1, did not utter a single word that the appellants herein were

involved in any kind of illicit affair with each other or that they had

a motive to eliminate Suresh Kumar. Therefore, the bald assertion

made by Surendra Kumar (PW-5) that the two accused were

involved in some kind of illicit affair, is totally unworthy of

credence and hence, it cannot but be concluded that the accused

had no motive whatsoever so as to murder Suresh Kumar.

The evidence of last seen is primarily based on the theory

that the accused Radheshyam took Shri Suresh away with him in

the night of 22.12.2011 whereafter, he was not seen alive.

However, this allegation, which was made by Vinod Kumar in his

sworn testimony, is a sheer piece of fabrication and exaggeration

because while lodging the written report (Ex.P/1), Vinod Kumar

did not make any such assertion that Arti Devi informed him that

Radheshyam had taken away Suresh Kumar with him. On the

contrary, when we peruse the written report (Ex.P/1), it becomes

clear that the prosecution case that Radheshyam took the

(11 of 24) [CRLA-739/2012]

deceased away from his home or the theory that he took him from

the place where he was operating his egg-lorry, is absolutely

falsified. In this written report, it was categorically stated that

Suresh Kumar called Vinod Kumar on his mobile phone and told

him in a frightened tone that someone was killing him. There was

no dispute that Radheshyam was well known to the deceased and

hence, if at all, he was the assailant, there was no reason as to

why the deceased would not divulge this fact to his own brother

that he was being assaulted by Radheshyam.

The conduct of the first informant Vinod Kumar (PW-1) in

grossly improving upon the story as set out by him in the written

report by alleging that the deceased Suresh Kumar, disclosed the

name of the assailant to be Radheshyam while conveying to the

complainant that he was being assaulted, makes his entire

testimony doubtful. Evidently, if Suresh Kumar was aware of the

name/identity of his assailant, he definitely would have disclosed

the same to the informant while making the call and consequently,

the informant would unquestionably have mentioned this fact in

the written report. Therefore, the endeavour of the first informant

in trying to create a theory in his sworn testimony that the

appellants herein were the assailants of Suresh Kumar and that

Suresh Kumar told him so while making the final call, is totally

questionable and has to be discarded.

Thus, we have no hesitation in holding that the deceased,

while making the last call to the informant, did not divulge the

name of his assailant. This fact, makes the entire prosecution case

as against the appellant Radheshyam totally doubtful. If at all, the

appellant Radheshyam was the assailant, then while making the

distress call to his brother Shri Vinod Kumar regarding so called

(12 of 24) [CRLA-739/2012]

assault, the victim Suresh Kumar would definitely have disclosed

the name of the assailant. The call details (Ex.P/37 and Ex.P/39)

have been relied upon by the prosecution and the perusal thereof,

gives a clear indication that the deceased indeed called his

brother, the first informant at 10.30 PM. The allegation as set out

in the evidence of Vinod Sachdeva (PW-1) that his sister-in-law

Arti, the appellant herein, told him that Shri Suresh Kumar had

gone with Radheshyam, is also a gross improvement of the

version as set out in the written report (Ex.P/1) and hence, the

same cannot be believed and has to be discarded. Our conclusion

is fortified from the evidence of Ashok Kumar Son of Narayandas

(PW-3), who while deposing on oath stated that he received a call

from Vinod Kumar at about 11 O' Clock in the night conveying that

his brother Suresh Kumar had made a panic call in which, he was

saying that someone was beating him.

12. The next consideration would be of the theory of last seen.

In this regard, the prosecution examined Ashok Kumar son of

Sohan Lal (PW-4). He alleged that he used to operate an egg-lorry

in the Gurunagar Chowk and Suresh was also operating an egg

lorry at the same place. On 22.12.2011, Suresh Kumar called his

cousin brother Radheshyam and requested him to bring two trays

of eggs but he refused saying that he did not have money.

Radheshyam then went to the house of Suresh Kumar. About 5-7

minutes later, Suresh Kumar got a call from some unknown man.

At about 10 O' Clock, Radheshyam came there and took away

Suresh Kumar with his chair. Arti wife of Suresh Kumar came to

Gurunagar Chowk and pleaded that someone was beating Suresh

Kumar on the Shyam Nagar Puliya. He picked up his lorry, went

(13 of 24) [CRLA-739/2012]

home and then proceeded to the Shyam Nagar Puliya. He

allegedly saw Radheshyam coming across on his bicycle. The

witness asked Radheshyam as to whether he had met Suresh

upon which, he refused. They both went to the Shyam Nagar

Puliya. It was quite dark. Then, he instructed Radheshyam to

bring a torch from home. About 5-7 minutes later, Radheshyam

came back with the torch. In the meantime, Arti and Vinod Kumar

also came there on a motorcycle. They went near the Puliya and

called out for Suresh Kumar, however, they did not get any

response. They proceeded in the bushes and saw chilli powder

spilt around. Suresh Kumar was lying amongst bushes and blood

was oozing out from his head and mouth. They called 108

Ambulance and the police. He then, proceeded towards home. In

cross-examination, the witness admitted that Arti approached him

on his egg-lorry and told him that Suresh Kumar had called and

told that someone was beating him. He reached the place of

incident at about 11 O' Clock. Suresh Kumar would normally

operate his egg-lorry till 11 O' Clock, however, on the fateful day,

he went back home with Radheshyam at about 9.30 pm. He did

not notice any quarrel between Suresh Kumar and Radheshyam.

From a perusal of the statement of this witness, it becomes

clear that though, he has been portrayed to be the witness of last

seen but manifestly, his observation was only limited to the extent

that Radheshyam and Suresh Kumar went back home with the

egg-lorry. Apparently, Suresh must have gone to the Shyam Nagar

Puliya after going home because his egg lorry was not seen

anywhere around the place of incident and thus, it can safely be

presumed that after proceeding home with Radheshyam, the

(14 of 24) [CRLA-739/2012]

deceased must have left the lorry there and then would have gone

to the Shyam Nagar Puliya.

13. In this background, there is nothing on record to satisfy the

Court that the appellant Radheshyam was lastly seen in the

company of the deceased before he was done to death.

Furthermore, the witness, even though being closely related to the

deceased, did not utter a single word regarding existence of illicit

affair between the accused Radheshyam and Arti.

14. Surendra Kumar (PW-5) is a cousin of the deceased Suresh

Kumar. He stated in his evidence that his cousin Suresh Kumar

used to operate an egg-lorry in the Gurunagar Chowk.

Radheshyam was running a cycle repairing shop in the Gol Bazaar

and was staying in the house of Suresh Kumar for the last few

days. He heard that Radheshyam and Arti were involved in some

kind of illicit affair and thus, the relationship between Suresh

Kumar and Arti had gone sour. At about 10.30 pm., when he

reached home, he saw a crowd gathered outside the house of

Suresh Kumar. On making an enquiry, he was told that Suresh

Kumar had been murdered. At that time, Vinod Kumar, Ashok

Kumar, Radheshyam and people from neighbourhood had

gathered there. The accused Arti told that two persons had come

and had taken away Suresh Kumar with them and thereafter, he

was killed and that his dead body was lying near the Shyam Nagar

Puliya. He also went there and saw the police present and the

dead body of Suresh Kumar was lying near the Puliya. Two days

later, he heard that Arti and Radheshyam were indulged in an illicit

(15 of 24) [CRLA-739/2012]

affair and that they had murdered Suresh Kumar to remove the

obstacle from their relationship.

A thorough consideration of the evidence of this witness,

makes it clear that his allegations are purely conjectural in nature

and the evidence, which he has given, is highly contradictory to

the version as deposed by the other material prosecution

witnesses which we have already discussed above. The timing of

events, which this witness has narrated, is at gross variance with

what was stated by the first informant and Ashok Kumar. The

witness claimed that he came to know that two accused were

involved in some kind of illicit affair but the source of his

information was not made clear.

In cross-examination, the witness admitted that his police

statement (Ex.D/2), was recorded after 5-6 days of the incident

(on 29.12.2011). He admitted that he was not aware that who

told him about the murder. He never saw the two accused involved

in illicit relations but got this information from people. He did not

tell parents of Suresh kumar regarding so called extramarital

affair. He went to the place of incident at about 10.30 PM.

Manifestly, this witness has given a concocted version altogether.

Firstly, if he had seen any of the events in the manner alleged by

him, then, he should not have kept silent for almost six days and

would be expected to immediately inform the police officers of this

observation when he reached the place of incident on the same

night. The rank silence of this witness in making these disclosures

at the earliest available opportunity, brings his evidence under a

grave cloud of doubt and he is, by no means, a reliable witness.

Another fact which makes the theory of the so-called extramarital

affair doubtful, needs to be mentioned at this very stage. The

(16 of 24) [CRLA-739/2012]

witness Surendra Kumar stated that the accused Radheshyam was

living in the house of Suresh Kumar for the last few days. On the

fateful day, the deceased called Radheshyam and asked him to

bring two trays of eggs. If at all, the accused Radheshyam and the

accused Arti were involved in an extramarital affair then, there

was no reason as to why the deceased would allow the accused to

stay in his home and also, there could not have been any reason

for him to request the accused for bringing the egg trays. On the

contrary, this fact clearly indicate that there was nothing wrong in

the relations between the spouses.

The witness Pappu Singh (PW-6) was examined in an

attempt to prove the theory of the extramarital affair between the

two accused but, he did not support the prosecution case and was

declared hostile. Thus, we have no hesitation in holding that the

entire theory of the extramarital affair has been cooked up

posteriorly so as to lend credence to the totally conjectural

prosecution case.

15. The dead body of Suresh Kumar was subjected to autopsy by

Dr. K.K. Garg (PW-14). He proved the postmortem report

(Ex.P/33) taking note of six injuries, some of them being lacerated

wounds on the head and the facial region of the deceased. These

injuries were opined to be sufficient to cause death in the ordinary

course of nature. In cross-examination, the witness admitted that

the possibility of these injuries being received in a vehicular

accident cannot not be ruled out.

16. The investigation of the case was undertaken by Mangla Ram

(PW-15). He alleged that he was posted as a Sub-Inspector at

(17 of 24) [CRLA-739/2012]

Police Station Kotwali, Sri Ganganagar on 22.12.2011. He received

a Q.S.T. message from the City Control Room at 10.05 pm. that a

man had been killed at the Shyam Nagar Puliya. He immediately

rushed there with the police team. A mobile police van was

already parked there. Before proceeding, he made an entry

(Ex.P/34A) in the Rojnaamcha of police station. Vinod Sachdeva

(PW-1) submitted a written report of this case on which, the FIR

No.584/2011 (Ex.P/2) was registered and the investigation was

assigned to him. He undertook the formal steps of investigation

viz. preparation of Site Inspection Plan, collection of the blood

stained and control soil from the place of the incident. The

photographs were got snapped. The dead body was forwarded to

the hospital for autopsy. The blood stained cap and the fancy

chappals of the deceased were recovered from the place of the

incident. On returning to the police station, entry (Ex.P/35A) was

made in the Rojnaamcha after the autopsy had been conducted.

The clothes of the deceased were collected from the medical

officers and were seized. The call details of the mobile phones of

Radheshyam, Arti, Suresh Kumar and Vinod Kumar were procured

with assistance from the office of the Superintendent of Police. On

analysis of the call details, the finger of suspicion pointed towards

these two appellants who were interrogated on which, they

confessed to have committed the murder. Both were arrested on

24.12.2011. During the course of investigation, Radheshyam gave

voluntary information to the I.O. which was recorded in memo

(Ex.P/43) regarding the fact that he had concealed the hammer

used for committing the murder in the bushes amongst the BSNL

office. Acting in furtherance of such information, the accused

Radheshyam allegedly took the I.O. to some bushes near the

(18 of 24) [CRLA-739/2012]

BSNL office and got a blood stained hammer with a wooden

handle recovered. The same was seized and sealed. The accused

Arti also gave an information (Ex.P/44) to the I.O. under Section

27 of the Evidence Act and acting in furtherance thereof, she got a

blood stained hammerhead recovered vide memorandum

(Ex.P/14) from her house in the UIT colony. The accused

Radheshyam gave another information (Ex.P/45) to the I.O. and

got recovered a blood stained bicycle (Ex.P/18) from which, the

blood stains were lifted in a gauze bandage. Another information

(Ex.P/46) was provided by the accused Radheshyam and acting in

furtherance thereof, the mobile phone of the deceased was

recovered from the field of Brajlal vide memo (Ex.P/20). The

accused Radheshyam provided yet another information (Ex.P/47)

to the Investigating Officer and got recovered his own blood

stained clothes and shoes vide memo (Ex.P/24) from the house of

his relative Surendra Kumar. Further information (Ex.P/48) was

provided by the accused and acting in furtherance thereof, he got

cane handle of the hammer recovered from the canal. The mobile

phone of the accused Arti was recovered vide memo (Ex.P/22).

Radheshyam's father got his mobile phone recovered vide memo

(Ex.P/23). After concluding investigation, a charge-sheet came to

be submitted against the accused appellant for the above

offences. In cross-examination, the witness admitted that he

received the authorization to investigate the case on 23.12.2011

at about 12.30 pm. Ashok Kumar and Ramniwas were associated

as witnesses in memorandum (Ex.P/6 to Ex.P/23). Pertinent

questions were put to the witness that he had fabricated the

evidence of the case so as to falsely implicate the accused in this

case, however he denied the same.

(19 of 24) [CRLA-739/2012]

From the evidence of this witness, it becomes clear that he

did not make any investigation whatsoever regarding the so called

theory of extramarital affair between the two accused. His entire

evidence pertains to the so-called incriminating recoveries and

collection of the call detail records. The Investigating Officer did

not make any effort to procure the certificate under Section 65B of

the Evidence Act and hence, the call detail records are

inadmissible in evidence.

17. We have already concluded that the evidence of the

prosecution witnesses regarding the motive (extramarital affair

and last seen) and the theory of last seen is not reliable. Thus, the

only evidence which the prosecution can bank upon so as to bring

home the guilt of the accused, would be in the form of the

recoveries purportedly effected by Mangla Ram (PW-15) during

the course of investigation. In this regard, we are of the view that

the recoveries are totally cooked-up and concocted. For reaching

to this conclusion, we would like to refer to the evidence of Ashok

Kumar (PW-4) who stated that Arti approached him at about 10 O'

Clock and told him that someone was beating Suresh Kumar. The

witness proceeded to the Shyam Nagar Puliya. Radheshyam met

him on the way. Vinod Kumar (PW-1) also stated that Radheshyam

was also participating in the search for the victim. As Radheshyam

was participating in the efforts to search for the victim soon after

the panic call was received by Vinod Kumar, there was no

opportunity for Radheshyam to have gone to the house of

Surendra Kumar for concealing his blood stained clothes etc.

which the Investigating Officer claims to have recovered in

furtherance of the information (Ex.P/47) vide memo (Ex.P/24). In

(20 of 24) [CRLA-739/2012]

the short window of time, the accused Radheshyam would have

got no opportunity to change his clothes and to come back to the

place of incident. The police had reached the spot and

investigation was undertaken throughout the night. Neither the

Investigating Officer nor any of the material prosecution witnesses

stated that Radheshyam went away from the place of incident

after the police had arrived there. Therefore, if at all, clothes of

Radheshyam were stained with blood, then the Investigating

Officer would definitely have observed this suspicious

circumstance and the accused would have been picked up

immediately. However, no such effort was made by the

Investigating Officer on the fateful night. Therefore, the recovery

of the blood stained clothes is manifestly a piece of fabrication.

18. In the same sequence, we find that Ashok Kumar (PW-4)

made a categoric that Arti approached him at 10 O' Clock pleading

that someone was beating her husband. Admittedly, Suresh

Kumar made the panic call to the witness at 10.30 pm. and thus,

there was no possibility of Arti being a part of the assault or she

having an opportunity to carry the hammerhead for hiding it in her

house. Thus, the recovery of hammerhead which the Investigating

Officer claims to have effected vide seizure memo (Ex.P/14) in

furtherance of the information (Ex.P/44) provided by the accused

Arti under Section 27 of the Evidence Act, is totally fabricated. On

the same reasoning and, since we have held that the Investigating

Officer's claim that he recovered the blood stained clothes of the

accused Radheshyam and the blood stained hammerhead from the

accused Arti to be unconvincing and rather fabricated, there

cannot be any reason to rely upon the Investigating Officer's claim

(21 of 24) [CRLA-739/2012]

that he recovered blood stained hammerhead and the mobile

phone of the deceased at the instance of the accused

Radheshyam. The mobile phone was recovered lying amongst the

fields. There is no allegation that the mobile phone had been

switched off and thus, the first reaction of the Investigating Officer

would be to attempt to call on the mobile phone of the deceased

which immediately would have rung, leading to its discovery.

Therefore, the recovery of the mobile phone is also dubitable.

19. In wake of the discussion made herein above, we are of the

view that the entire chain of recoveries which the Investigating

Officer claimed to have effected during the course of investigation

of FIR, is unbelievable and unreliable. In this regard, we may also

state that the Investigating Officer associated only Ashok Kumar

(PW-3) in most of these recoveries. Ashok Kumar is closely related

to the deceased and thus also, the recoveries do not inspire

confidence.

The prosecution has placed reliance upon the FSL report

(Ex.P/65) as per which, the blood smeared soil, the blood stained

cap and a pair of fancy chappals recovered from the spot, the pant

and shirt of the deceased, two hammers (recovered from both

accused), the bloodspots lifted from the bicycle of the accused

Radheshyam and the clothes of Radheshyam, all tested positive

for 'A' group human blood. We would like to observe that even if

the recoveries were to be believed, mere recovery of blood stained

articles without there being any other link in the chain of

circumstances to connect the accused with the crime, cannot be

considered sufficient so as to link them with the alleged murder.

In this regard, we would like to place reliance upon the following

(22 of 24) [CRLA-739/2012]

observations made by Hon'ble the Supreme Court 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 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.

(23 of 24) [CRLA-739/2012]

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. "

20. As we have already concluded all the material prosecution

witnesses viz. Vinod Kumar (PW-1), Ashok Kumar (PW-3) and

Surendra Kumar (PW-5) have given cooked up testimony against

the accused appellants and, as the recoveries do not inspire

confidence, there remains nothing on the record so as to connect

the accused with the charge of committing murder of Suresh

Kumar.

21. As a consequence, the appreciation of evidence as

undertaken and the finding recorded by the learned trial court

while recording the guilt of the accused appellants by the

impugned Judgment is not appropriate. The impugned judgment

does not stand to scrutiny and hence, the same cannot be

sustained.

(24 of 24) [CRLA-739/2012]

22. As a result of the discussion made hereinabove, the appeals

succeed and are hereby allowed. The impugned Judgment dated

20.07.2012 passed by the learned Additional Sessions Judge,

No.2, Sri Ganganagar in Sessions Case No.4/2012 is hereby

quashed and set aside. The accused-appellants are acquitted of

the charges punishable under Sections 302 and 120B IPC. The

appellants are in custody and shall be released from prison

forthwith, if not wanted in any other case.

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

Cr.P.C., each of the appellants 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 appellants shall appear before the Supreme

Court.

24. Record be returned to the trial court forthwith.

25. A copy of this order be placed in each file.

                                   (RAMESHWAR VYAS),J                                     (SANDEEP MEHTA),J


                                    5-Tikam/-









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