Soma And Anr vs State
2021 Latest Caselaw 17475 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 941/2014

1 Soma son of Akhmana Bhagora
2. Babu @ Bapu Lal son of Kalu Bhagora
Both residents of Jharniya, Anandpuri Police Station, District
Banswara.
                                                                  ----Appellant
                                   Versus
The State of Rajasthan.
                                                                ----Respondent


For Appellant(s)         :     Mr. J.V.S. Deora.
For Respondent(s)        :     Mr. Anil Joshi, PP.



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

                             JUDGMENT

Judgment pronounced on                 :::            23/11/2021
Judgment reserved on                   :::            15/09/2021



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

1. The appellants herein have been convicted and sentenced as

below vide judgment dated 06.12.2014 passed by the learned

Additional District & Sessions Judge, Dungarpur in Sessions Case

No.63/2012:

Offences            Sentences                  Fine             Fine  Default
                                                                sentences
Section             Life Imprisonment Rs.5,000/-                1 Year's R.I.
302/120B IPC

Section             2 Years' R.I.              Rs.500/-         6 Months' R.I.
201/120B IPC

All the sentences were ordered to run concurrently.

(2 of 15) [CRLA-941/2014]

2. Being aggrieved of their conviction and sentences, the

appellants have 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. Pratap Singh S/o Kachrumal Ji Meena (PW-3) lodged a

written report to the SHO, Police Station, Sagwara (Ex.P/4) on

26.06.2012 alleging inter alia that he was informed regarding the

dead body of a person floating in the Mahi River on which he (the

informant), alongwith Suresh and other persons, went there and

saw dead body of a man lying face down on the banks of the river

near the funeral ground. On checking the body, it was found that

the left side of the neck was cut and there were number of injury

marks on the palms and fingers as well. The deceased was

wearing a striped white full sleeve shirt and a dark blue coloured

pant and an underwear. Blood was spilled nearby the body which

appeared to be two days old.

On the basis of the aforesaid report, an FIR No.159/2012

(Ex.P/37) came to be registered at the Police Station Sagwara for

the offences punishable under Sections 302 and 201 IPC. The

investigation was assigned to Rakesh Rajora (PW-25), SHO, Police

Station Sagwara who reached the place of incident and prepared

the relevant documents i.e. Panchayatnama Lash, etc. The

photographs of the dead body were snapped and it was sent to

the Government Hospital for autopsy where postmortem report

(Ex.P/36) was prepared. The clothes available on the dead body

were seized. A few days after the incident, the SHO received

(3 of 15) [CRLA-941/2014]

information that the dead body was that of Bhagga S/o Teja Pargi

upon which, his relatives were summoned and they identified the

dead body to be that of Bhagga on the basis of the clothes and the

photographs.

During further investigation, the I.O. claims to have collected

evidence to the effect that Bhagga was married to Kanta but their

relationship had gone sour. Kanta was allegedly involved in an

extramarital affair with the appellant Soma. The deceased had

gone to attend a marriage in the village Chhayna with his two

brothers Tita (PW-9) and Lalu (PW-10). The appellant Soma and

Babu arrived there and took Bhagga along with him on pretext of

showing him another woman to remarry. Thereafter, Bhagga was

not seen alive. The appellants herein were arrested and as is

usual, the recoveries of their clothes and the alleged weapon of

offence (knife) were effected at their instance by the I.O.

After concluding investigation, a charge-sheet came to be

filed against the appellants for the offences punishable under

Sections 302 and 201 IPC. As the offence under Section 302 was

exclusively triable by the Court of Sessions, the case was

committed to the Court of the Sessions Judge, Dungarpur from

where, it was transferred to the Court of the Additional Sessions

Judge-cum-MACT, Dungarpur, Camp Sagwara for trial. Charges

were framed against both the appellants for the above offences.

They denied the same and claimed trial. The prosecution

examined as many as 25 witnesses and exhibited 51 documents

to prove its case. Upon being questioned under Section 313 Cr.P.C.

and when confronted with the circumstances appearing against

them in the prosecution evidence, the appellants refuted the

(4 of 15) [CRLA-941/2014]

prosecution allegations and claimed to be innocent. One document

was exhibited but no oral evidence was led in defence. After

hearing the arguments advanced by the defence counsel and the

learned Public Prosecutor and, upon appreciating the evidence

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

and sentence the appellants as above. Hence this appeal.

5. Shri Deora, learned counsel representing the appellants,

vehemently and fervently urged that the entire prosecution case is

false and fabricated. The appellants had no motive whatsoever to

murder Shri Bhagga. The witnesses of last seen circumstance

namely Tita (PW-9), Lalu (PW-10) and Sohan (PW-13) have given

unconvincing vacillating evidence. Kanta (PW-11) did not support

the prosecution case and was declared hostile. The recoveries

allegedly effected by the I.O. at the instance of the accused

appellants are fabricated. The findings recorded by the trial court

in the impugned Judgment are conjectural and perfunctory. On

these submissions, Shri Deora implored the Court to accept the

appeal, set aside the impugned Judgment and acquit the

appellants of the charges.

6. Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by learned counsel

Shri Deora and urged that the witnesses Tita, Lalu and Sohan had

no reason to falsely implicate the appellants in this case because

there was no animosity between them and the accused. The

witnesses are illiterate and hail from a tribal area and thus, trivial

contradictions are bound to occur in their evidence in the natural

course of events. The investigating officer had no reason

(5 of 15) [CRLA-941/2014]

whatsoever to fabricate evidence of the witnesses or to

manipulate the recoveries and he had no motive to implicate the

accused falsely in this case. The appellant Soma was indulged in

an extramarital affair with Kanta wife of the deceased Bhagga and

in order to eliminate him, he hatched a conspiracy with the

accused Babu. In furtherance of this design, Bhagga was picked

up from the marriage place and was then taken to Sohan's house

where he was made to consume liquor. On the next morning, the

two accused collected a knife from Sohan's house and left with

Bhagga. Soon thereafter, Bhagga's dead body was found with a

fatal neck injury caused by a sharp weapon. The knife recovered

at the instance of the accused and the clothes collected from the

dead body of Bhagga tested positive for the presence of 'AB'

Group human blood for which, the accused could not offer any

explanation. The learned Public Prosecutor urged that conviction

of the appellants as recorded by the trial court is based on

unimpeachable appreciation of evidence available on record and

hence, the impugned Judgment does not warrant any interference

whatsoever. On these grounds, he sought dismissal of the appeal.

7. We have given our thoughtful consideration to the

submissions advanced at bar and have carefully gone through the

impugned Judgment as well as the record.

8. Admittedly, the case of the prosecution is based purely on

circumstantial evidence. Firstly, we take up the prosecution

allegation imputing motive for the murder of Shri Bhagga to the

appellant Soma on the ground that he was indulging in an

extramarital affair with Kanta wife of the deceased Bhagga. In this

(6 of 15) [CRLA-941/2014]

regard, the prosecution examined Smt. Kanta as PW-11. She

totally denied the prosecution theory of extramarital affair

between her and Soma and was declared hostile. She also refuted

the prosecution suggestion that the mobile phone which she was

having was that of Soma. Rather, she stated that she had never

met Soma. Thus, the evidence of Kanta does not lead the

prosecution anywhere.

9. Tita (PW-9) stated in his evidence that a dispute occurred

between his brother Bhagga and his wife Kanta who parted way

and started living at her father's house from the past 2 years.

Bhagga therefore wanted to remarry. The witness imputed that

Soma was involved in an affair with Kanta and thus, he killed

Bhagga. In cross-examination, he agreed that he came to know

about the illicit affair of the appellant Soma and Kanta through his

brother Bhagga, when he was working in Gujarat. No other person

ever told him that the appellant Soma and Kanta were involved in

an illicit affair.

PW-10 Lalu also alleged that Kanta had left his brother

Bhagga and was living at her paternal home for the past two

years. This witness did not utter a single word in his statement

that the appellant Soma was involved in any kind of illicit affair

with Kanta.

As per the evidence of Tita and Lalu, they along with

Bhagga, had gone to attend a marriage in the house of Manji

Maida at the village Chhayana. Soma and another person came

there and took Bhagga along with them on the pretext that he

would be shown another woman to marry. This assertion of the

two prosecution witnesses completely discredits the theory that

(7 of 15) [CRLA-941/2014]

Soma was involved in any kind of illicit affair with Kanta. Had

there been any truth in this allegation then, there was no reason

whatsoever as to why Bhagga would accompany Soma, the

paramour of his own wife for finding another woman to marry.

Tita (PW-9) and Lalu (PW-10) claimed in their testimony that

they, alongwith Bhagga, had gone to the village Chhayana for

attending a Baraat at the house of Manji Maida. However, neither

of these witnesses gave out the date, month or week when they

had gone to attend the wedding. When Lalu was cross-examined,

he candidly admitted that he did not go to the house of Manji

Maida. He also admitted that the accused Soma did not meet him

at the marriage venue. His brother Bhagga went in a vehicle and

did not return. He further stated that they continued to search for

Bhagga for three days and when he could not be found, they went

to the Police Station Anandpuri where they were told that a dead

body has been found in the jurisdiction of Police Station Sagwara.

Lalu (PW-10) also admitted in his cross-examination that as

Bhagga did not return for about 3 days after leaving the marriage

place, they went to the Police Station Anandpuri and lodged a

missing person report. However, the said missing person report

was not proved/ brought on record by the prosecution. This report

would have provided valuable material to corroborate the evidence

of the witness and the concealment thereof, persuades us to draw

adverse inference against the prosecution. Neither of these two

witnesses, identified Babu @ Bapu as being the other man with

Soma who had taken away Bhagga from the marriage place.

Manifestly thus, the theory of motive based on the allegation

of extramarital affair attributed by the prosecution to the accused

(8 of 15) [CRLA-941/2014]

Soma for the murder of Bhagga is totally fictitious and concocted

and cannot be relied upon.

10. Regarding the evidence of last seen, the prosecution

examined the witnesses Tita (PW-9), Lalu (PW-10) and Sohan

(PW-13). In addition thereto, the witnesses Kanji (PW-6) and

Suresh (PW-7) also tried to portray themselves to be witnesses of

last seen in the same manner as Tita and Lalu. However, when we

analyze the statements of these two witnesses, it comes to fore

that they were examined in evidence simply to prove the

identification memo (Ex.P/9) of photographs of the deceased and

the seizure memo of the clothes of the deceased (Ex.P/10). They

were never examined during investigation as witnesses of

circumstance of last seen and both admitted that their statements

were not recorded by police. Therefore their evidence regarding

the theory of last seen is fit to be discarded outright.

On an overall appreciation of the evidence of these two

witnesses, we are of the view that they have given totally

unconvincing and vacillating evidence on the aspect that the

deceased Bhagga was taken away by the accused appellants from

the marriage ceremony at the residence of Manji Maida. There are

material contradictions in the testimony of both these witnesses

which make their evidence unreliable. The fact that they claim to

have lodged a missing person report which has not been brought

on record, also throws a doubt on the genuineness of the

prosecution case.

That apart, the evidence of these two witnesses also

becomes doubtful when we consider the fact that the witness Tita

(PW-9) alleged, that the appellant was involved in an extramarital

(9 of 15) [CRLA-941/2014]

affair with Kanta wife of Bhagga. In such eventuality, there was no

possibility that Bhagga would accompany his own wife's paramour

to search for another woman to marry.

Neither Tita (PW-9) nor Lalu (PW-10) disclosed the date of

the marriage which took place in the house of Manji Maida (from

where Bhagga was taken away) nor did the I.O. make any

investigation in relation thereto. No person from the family of

Manji Maida was examined in evidence to fortify the prosecution

case regarding the deceased Bhagga and the two witnesses

having gone there to attend Baraat/ marriage ceremony.

On a perusal of the memorandum (Ex.P/9) by which, Tita

and Lalu identified the photographs of the dead body and the

clothes, etc. present thereupon, it becomes clear that in this

memorandum, the witnesses alleged that their brother had gone

to attend a marriage on 24.06.2012 and did not return home and

thus, they had gone in his search. It is nowhere recorded in this

document that the witnesses were present in the marriage or that

the deceased was taken away by the accused in their presence.

After identifying the dead body, the natural conduct of the

witnesses would have been to submit a report to the I.O. that the

victim had been taken away by the two accused. However, no such

effort was made by the witnesses which completely destroys their

creditworthiness.

11. PW-13 Sohan was examined as another witness of last seen.

He alleged in his testimony that about 12 months ago, it was

Sunday and he was at his home. At about 8 O' Clock, Bapu came

to his house. Two more persons came with Bapu who introduced

them as Bhagga and Soma. These three persons had come on a

(10 of 15) [CRLA-941/2014]

motorcycle. Sohan served them food whereafter, all went to sleep.

In the morning, at about 05.00-05.30 AM, he gave them tea and

then, these three persons went away. While going away, Bapu

took away a kitchen knife from his house. This witness did not

identify the accused Soma in the Court as the one who was

accompanying Bapu.

During evidence of this witness, no effort was made to get

the deceased identified through photographs etc., as being third

man accompanying Soma and Bapu. Therefore, the evidence of

last seen on which, the prosecution banks upon and which was

heavily relied upon by the trial court for convicting the appellants,

is neither reliable nor convincing.

12. On the aspect of recovery of knife, we would like to refer to

the statement of the I.O. (PW-25) Rakesh Rajora. On a bare

perusal of his statement, it becomes crystal clear that he has

given absolutely perfunctory evidence regarding the informations

provided by the accused. For the sake of ready reference, the

relevant part of his deposition is extracted herein below:-

"tSj fgjlr eqyfte lksek us eq>s LosPNk iwoZd lqpuk nh Fkh] mlus gR;k esa dke esa fy xbZ Nwjh rFkk ?kVuk ds oDr igus diM+s isVh esa Mkydj j[ksa mUgs py ds cjken djk ldrk gwWa mDr lwpuk izŒih&45 gS ftl ij esjs , ls ch o lh ls Mh eqyfte lksek ds gLrk{kj gSA eqyfte lksek us viuh lqpuk ds eqrkchd vius igus gq, diM+s eksckbZy o Nqjh lqpuk ds eqrkchd tCr dh dk;Zokgh gsrq esjs v/khuLFk xksikynkl dks dgk Fkk ftUgksaus ekSds ij tkdj eqyfte ds isUV] "kVZ o ,d Nqjh tCr dh ftldh QnZ izŒih&31 gSA"

(11 of 15) [CRLA-941/2014]

Apparently, the information (Ex.P/45) does not indicate as to

the place where the knife was concealed. The evidence regarding

information recorded by the I.O. is inconsistent with the actual

information (Ex.P/45).

Furthermore, the I.O. did not give any evidence whatsoever

regarding the fate of the weapon of offence after it was allegedly

seized and presented to him by Gopal Das Vaishnav (PW-24) who

was posted as S.I. at Police Station Sagwara at that time. Thus,

the link evidence regarding the safe-keeping of the weapon from

the time of seizure till the same was received at the FSL, is

breached. Therefore, neither is the evidence of the police

witnesses regarding the recoveries reliable nor can the FSL report

(Ex.P/51) read in evidence, because the sanctity of link evidence

was not established in the evidence of the prosecution witnesses.

13. The fact regarding the deceased Bhagga having been

murdered, is well established when we peruse the testimony of Dr.

Vinod Patidar (PW-22) and the postmortem report (Ex.P/36) as

per which, following injuries were noticed:

(i) Incised wound- admeasuring 10 cms long x 4 cms width x 5 cms depth on the left side of the neck just behind sternocleidomastoid muscle extending obliquely upwards to nape of the neck. Wound tapered on both side and edge are blood stained. Major blood vessel and muscle on left side of neck are cut,

(ii) Two incised wounds over posterolateral aspect of the left wrist size- admeasuring 6cmsx 1.5 cmsx muscle depth, edge are blood stained.

(iii) Two incised wounds over dorsum of left hand admeasuring 5 cmsx 1 cmsx muscle depth, edge are blood staine,

(iv) Abrasion, blood stained admeasuring 6x3 cms over right side of the forehead,

(12 of 15) [CRLA-941/2014]

(v) Abrasion admeasuring 20x15 cms over right side of the chest

Cause of death was opined to be Hypovolemic shock due to

excessive hemorrhage from the cut caused on major blood vessel

at left side of the neck. Injury no. 1 was determined to be

sufficient to cause death.

14. Manifestly thus, the two incriminating circumstances on

which, the prosecution placed reliance so as to prove the charges

against the appellants, were not proved by cogent and convincing

evidence.

15. For concluding the guilt of the accused, the trial court

discussed the prosecution evidence at paras Nos.36, 37 and 38 of

the impugned Judgment. The findings so recorded by the trial

court are manifestly perverse and contrary to the evidence

available on record and thus, we are persuaded to reproduce the

same for the sake of ready reference:

"36- xokg ihMCY;w&13 og O;fDr gS] ftlds ?kj ?kVuk ls igys rhuksa e`rd o nksuksa vfHk;qDr jkr dks :dsA xokg lksgu us eqxhZ cukbZ vkSj mUgksaus "kjkc ih gSA xokg us ;gka rd dgk gS fd e`rd us T;knk "kjkc ih yh vkSj og fcuk [kkuk [kk;s lks x;k FkkA lqcg tYnh mBdj rhuksas tkus yxs rks mlus e`rd dks ;g dgdj [kkuk f[kyk;k fd mlus jkr dks [kkuk ugha [kk;kA bl xokg us ;g Hkh dgk gS fd tkrs&tkrs vfHk;qDr lksek us mlls lCth Hkkth dkVus ds fy, ,d Nqjk fy;k FkkA vfHk;qDrx.k lksgu ds ?kj e`rd dks ysdj ugha x, gksa] ,slh dksbZ lk{; mudh vksj ls izLrqr ugha dh xbZ gS ;k lksgu ds ?kj ls fudydj vfHk;qDrx.k us e`rd dks dgha vkSj lgh lyker NksM+k gks] ,slh Hkh dksbZ lk{; ugha gSA lksgu ds ?kj ls fudyus ds ckn e`rd dh yk"k unh ds ikuh esa rSjrh gqbZ feyh gS ftls fnukad 26-06-2012 dks izFke ckj ikl esa "ke"kku esa vk;s gq, fdlh O;fDr }kjk ns[kk x;k] ftlds }kjk ljiap dks lwpuk nh vkSj ljiap us iqfyl dks lwpuk nh vkSj iqfyl us iapukek yk"k cukdj yk"k dks tCr fd;k rFkk mldk iksLVekVZe djk;kA iksLVekVZe esa xys esa vkbZ gqbZ /kkjnkj gfFk;kj ls pksV ds dkj.k e`R;q gksuk ik;k x;k FkkA iksLVekVZe fnukad 28-

(13 of 15) [CRLA-941/2014]

06-2012 esfMdy cksMZ }kjk fd;k x;k gS vkSj iksLVekVZe ls 3&4 fnu iwoZ e`R;q gksuk ik;k x;k gSA gkykafd lk{; esa MkWDVj ihMCY;w&22 us iksLVekVZe ls 3&4 ?kaVs iwoZ e`R;q gksuk fy[kk;k gSA ;g fy[kus ;k fy[kkus dh =qfV gks ldrh gSA iksLVekVZe fjiksVZ esa e`R;q dk le; 3&4 fnu iwoZ dk gh n"kkZ;k gqvk gSA /kkjnkj gfFk;kj vfHk;qDrx.k dh fu"kknsgh ls nQk 27 dh lwpuk ds vk/kkj ij tCr fd;k x;k gS vkSj tks Nqjk vfHk;qDrx.k dh fu"kknsgh ls cjken fd;k x;k gS ml ij izn"kZ&51 ,Q,l,y fjiksVZ ds vuqlkj ekuo jDr CyM xqzi , ch dk ik;k x;k gS vkSj ;gh , ch xzqi dk CyM e`rd ds diM+ksa ij rFkk [kwu vkywnk feV~Vh ij ik;k x;k gSA

37- tgka rd vfHk;qDrx.k ds ikl e`rd dh gR;k djus dk eksfVo dk iz"u gS] vfHk;qDr lksek ds e`rd dh iRuh dkark ls vuSfrd laca/k FksA bl ckr dk dFku xokg ihMCY;w&9 o ihMCY;w&10 us Hkh fd;k gSA dkark Lo;a lk{; esa ijhf{kr gqbZ gSA dkark dk iqfyl us /kkjk 164 n.M izfØ;k lafgrk dk c;ku Hkh ntZ djk;k gSA mlesa Hkh mlus vfHk;qDr lksek ds lkFk "kkjhfjd lac/a k gksuk Lohdkj fd;k gSA gkyakfd U;k;ky; esa gq, lk{; ds nkSjku og i{knzksgh gqbZ gSA mlus vfHk;qDr lksek dks igpkuuk ugha crk;k gS vkSj vfHk;qDr lksek dk Qksu mlds ikl vkus ds rF; ls Hkh badkj fd;k gS] tcfd /kkjk 164 n.M izfØ;k lafgrk esa mlus vfHk;qDr lksek ls Qksu ij ckr gksuk Lohdkj fd;k gSA vfHk;qDr lksek o e`rd dh iRuh dkark dk vkil esa laca/k gksuk] ;g lkfcr gksrk gS QnZ izn"kZ&ih16 lsA iqfyl us vfHk;qDr lksek ds dCts ls ,d Qksu cjken fd;k gS] ftldk uaŒ 9649521060 rFkk QnZ 13 ls dkark ds dCts ls Qksu cjken fd;k x;k gS] ftldk uaŒ 9983927025 gSA ;s nksuksa Qksu fle vfHk;qDr lksek ds uke ls tkjh gq, gSa] ftldh iqf'V QnZ izn"kZ&ih48 o ih49 ls gksrh gS] tcfd ,d Qksu lksek ds dCts ls vkSj nwljk Qksu dkark ds ikl ls cjken gqvk gS vkSj iqfyl }kjk tks dkWy fMVsy izn"kZ&ih50 izLrqr gqbZ mlesa bu nksuksa Qksu uEcjksa ls fnu esa dbZ&dbZ ckj ckr gksuk Li'V gksrk gSA bl dkWy fMVsy dks ns[kus ls xokg dkark dk c;ku >wBk lkfcr gksrk gS vkSj e`rd ds HkkbZ fVVk vkSj ykyq ds dFkuksa dks cy feyrk gS] ftlesa mUgksaus dkark ,oa vfHk;qDr lksek ds e/;

vuSfrd lac/a k gksuk dgk gSA lksek ds dkUrk ls vuSfrd laca/[email protected] laca/k gksus ds dkj.k vfHk;qDr lksek ds ikl e`rd Hkxk dks vius jkLrs ls gVkus dk eksfVo izkIr Fkk vkSj blh eksfVo ds dkj.k vfHk;qDr lksek us vfHk;qDr ckiq ds lkFk feydj bl ?kVuk dks vatke fn;k tkuk izrhr gksrk gSA

38- gkykafd vfHk;kstu }kjk ijhf{kr djk, x, dbZ xokg vfHk;kstu dh dgkuh dks rkbZn ugha djrs gSa] ysfdu xokg ihMCY;w&9] ihMCY;w&10] ihMCY;w&11] ihMCY;w&13 ds dFku rFkk izn"kZ&ih48 o ih49 vkSj dkWy fMVsy izn"kZ&ih50 izdj.k dks iwjh rjg lkfcr dj nsrs gSA vf/koDrk vfHk;qDr }kjk tks U;kf;d n`'Vkar voyksdukFkZ izsf'kr fd, x, Fks mudk llEeku voyksdu fd;k x;k] ysfdu os bl izdj.k ij pLik ugha gksrs gSa] D;ksafd mu izdj.kksa esa eksfVo

(14 of 15) [CRLA-941/2014]

lkfcr ugha gks ik;k Fkk ,oa ifjfLFkfrtU; lk{; dh dfM+;k Hkh tqM+h gqbZ ugha Fkh] ysfdu bl izdj.k esa vfHk;qDr lksek ds ikl e`rd Hkxk dh e`R;q djus dk i;kZIr dkj.k Fkk vkSj mlus Iykfuax ls Nk;.k xkao esa "kknh esa ls e`rd dks lkFk ys tkdj jkr dks lksgu ds ;gka :ddj nwljs fnu lksgu ds ;gka ls Nqjk ysdj Hkxk dh xnZu dkVdj gR;k djnh rFkk vius vijk/k ds ifj.kkeLo:i Hkxk dh yk"k dks fNikus rFkk vijk/k dh lk{; dks feVkus ds vk"k; ls unh esa cgkus dk iz;kl fd;k] ysfdu og unh esa Mwcus ds ctk; rSjdj fdukjs ij vk xbZ] tgka yksxksa ds ns[kus ij mldks ckgj fudkydj iqfyl dks bfRryk djnhA"

(Emphasis supplied).

16. The emphasised parts of the deposition of PW-13 Sohan,

which has been quoted by the learned Trial Judge at para No.36 of

the impugned judgment, was actually not stated by the witness.

Rather, it is apparent that the trial court has reproduced extracts

from the 164 Cr.P.C. statement of the witness (Ex.P/14) for

recording findings against the accused.

At para No.37 of the impugned Judgment, the learned trial

court has extensively referred to the statement of Kanta recorded

under Section 164 Cr.P.C. (Ex.P/11). It was also recorded that two

sim cards were recovered by the I.O., one from the phone in

possession of the accused Soma and the other from the phone in

possession of Kanta and that both the sims were issued in the

name of Soma. This finding of the trial court is perverse because it

is clear misquoting of facts/ evidence because when we peruse the

seizure memo (Ex.P/13) by which, a mobile phone was recovered

from Kanta, it becomes clear that there is no reference in this

seizure memo that any sim was available in the mobile phone. The

I.O. also gave no such evidence as has been quoted by the trial

court.

Manifestly thus, the trial court quoted inadmissible pieces of

evidence and also manipulated the facts while recording the

(15 of 15) [CRLA-941/2014]

findings, referred to supra. The findings so arrived by the trial

court are patently perverse as they are based on misreading/

misquoting the evidence. Hence, the impugned Judgment suffers

from glaring infirmities and perversity and the same does not

stand to scrutiny.

17. As an upshot of the discussion made herein above, the

appeal deserves to be accepted. The impugned Judgment dated

06.12.2014 passed by the learned Additional District & Sessions

Judge, Dungarpur in Sessions Case No.63/2012, is hereby

quashed and set aside. The appellants are acquitted of the

charges. Appellant Soma is in custody. He shall be released from

prison forthwith if not wanted in any other case. Appellant Babu @

Bapu Lal is on bail. He need not surrender and his bail bonds are

discharged.

The appeal is allowed accordingly.

18. 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 appellant shall appear before the Supreme

Court.

19. Record be returned to the trial court forthwith.

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


                                    4-Tikam/-









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