Rajasthan High Court - Jodhpur

Om Prakash vs State on 30 June, 2022

Bench: Sandeep Mehta, Vinod Kumar Bharwani

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 1009/2011

Om Prakash S/o Shri Meeka Ram by caste Nayak, R/o Gudia,
Police Station & Tehsil Nohar District Hanumangarh, Rajasthan
(presently lodged in Central Jail, Bikaner)
                                                                   ----Appellant
                                     Versus
State of Rajasthan
                                                                 ----Respondent


For Appellant(s)          :     Mr. R.S. Gill
For Respondent(s)         :     Mr. B.R. Bishnoi, AGC



          HON'BLE MR. JUSTICE SANDEEP MEHTA
     HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                              JUDGMENT

Date of Pronouncement :-                                 30/06/2022

Judgment Reserved on            :-                       16/05/2022


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

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 11.11.2011 passed by learned Addl.

Sessions Judge (Fast Track), No.2, Hanumangarh Headquarter

Nohar in Sessions Case No.18/10 (17/10):-

Offence    Sentences                  Fine                Sentence in lieu of
under                                                     default of payment
Section                                                   of fine
302 IPC    Life Imprisonment Rs.2,000/-                   6 month's Additional
                                                          RI
201 IPC    1 Year's RI                Rs.1,000/-          3 Months' Additional
                                                          RI

Both the sentences were ordered to run concurrently.

(2 of 20) [CRLA-1009/2011]

2. He has preferred the instant appeal under Section 374(2)

Cr.P.C. for assailing the impugned judgment of conviction and the

sentences awarded to him by the trial court.

3. Briefly stated the facts relevant and essential for disposal of

the instant appeal are noted hereinbelow:-

A telephonic information was received at the Police Station

Nohar on 30.07.2010 at about 7:00 pm regarding decomposed

body of an unknown person having been found in a field at the

village Gudia and in pursuance thereof, a police team comprising

of SI Anil Kumar and ASI Lal Singh, proceeded to the spot, where,

Shri Vinod Kumar (PW.5), son of the village Sarpanch, submitted a

written report (Ex.P/11) alleging inter alia that NREGA work was

going on in the Khala near the field of Hukma Ram Khati. Some

women had gone to the Khala for plucking ker berries and they

saw a human dead body lying partially buried under the ground

and promptly gave information in the village. The face of the dead

person was in a skeletal form. The jaw was lying besides the body

and so also were the leg bones. The victim was wearing t-shirt

and pant like apparel and was about 20-25 years of age and was

not identifiable. Upon receiving this report, proceedings under

Section 174 Cr.P.C. were registered bearing No.42/2010 and

enquiry was commenced.

4. PW.3 Sukhram lodged a written report (Ex.P/1) to the SHO

Police Station Nohar on 01.08.2010 at about 6:00 PM alleging

inter alia that his two brothers namely Krishan and Raghuveer had

been married in the village Saktakhera. A girl named Nirma hailing

from his village had been married to the brother-in-law (Sala) of

(3 of 20) [CRLA-1009/2011]

his two brothers and thus Om Prakash and brother of Nirma were

in a way related to them. His brother Raghuveer left their home

on 26.07.2010 at about 9:30 AM saying that he would be

proceeding to his matrimonial home. On 30.07.2010, the

informant heard rumours in the village that an unknown dead

body had been recovered in the Rohi of Village Gudia. On this, he

along with other family members proceeded to the Government

Hospital, Nohar where, they saw the dead body and identified the

same to be that of Raghuveer. They accepted the body and

cremated the same. They were sitting in their house the next

morning when PW.1 Hari Singh S/o Shri Kana Ram and PW.2 Ravi

Kumar S/o Shri Sewaram came and told them that on 26.07.2010,

they were doing labour jobs in the field of Mahaveer Jat. At about

10 O' Clock, they saw Raghuveer and Om Prakash passing by. So

they called out Raghuveer to help them make a call. At that time,

they saw Om Prakash had a Kassi over his shoulder. However, the

call could not be connected on which, Raghuveer and Om Prakash

proceeded towards 16 JSN bus stand. On receiving this

information, the informant, along with his family members

proceeded to the house of Om Prakash and asked him about

Raghuveer. He resisted for some time but then broke down and

confessed that on 26.07.2010, he had killed Raghuveer in a

desolate area at about 11 O' Clock, dug up a trench and buried

the dead body therein. They asked Om Prakash for the mobile and

other articles of Raghuveer on which, he stated that he had

thrown the same into the canal. Om Prakash escorted the

complainant party to the 15 YSN -A canal where he had allegedly

thrown these articles. On reaching the spot, Om Prakash panicked

and jumped into the canal. The members of the complainant party

(4 of 20) [CRLA-1009/2011]

took him out of water and saved him. Om Prakash received

injuries by jumping into the canal and thus, he was taken to and

was admitted to the Government Hospital. On the basis of this

report, FIR No.411/2010 (Ex.P/2) came to be registered at the

Police Station Nohar for the offences punishable under Sections

302 & 201 IPC and the investigation was assigned to PW. 15 Shri

Bhaglaram Meena, SHO PS Nohar. It may be stated here that the

complainant claimed in the FIR that the accused had been

admitted in the Government Hospital, Nohar well before lodging of

the report but while preparing the arrest memo (Ex.P/30) of the

accused, it was not recorded therein that he was being arrested

from the hospital. The arrest memo records the fact that large

number of injuries were noticeable on the body of the accused to

be specific on the right knee, both hands, abdomen, chest, thighs,

neck, buttocks, etc.

5. After concluding investigation, charge-sheet came to be filed

against the appellant herein for the offences punishable under

Sections 302 & 201 IPC. Since the offence under Section 302 IPC

was exclusively triable by Court of Sessions Judge, the case was

committed and then transferred to the Court of Addl. Sessions

Judge (Fast Track) No.2, Hanumangarh Headquarter Nohar for

trial where charges were framed against the accused appellant for

these offences. He pleaded not guilty and claimed trial. The

prosecution examined 15 witnesses and exhibited 36 document to

prove its case. The accused, upon being questioned under Section

313 Cr.P.C. denied the prosecution allegations and claimed to have

falsely implicated. Four documents were exhibited but no oral

evidence was led in defence. After hearing arguments advanced

(5 of 20) [CRLA-1009/2011]

by learned Public Prosecutor and the defence counsel and

appreciating the evidence available on record, learned trial court

proceeded to convict and sentence as above vide judgment dated

11.11.2011 which is assailed in this appeal filed by the appellant

under Section 374 (2) Cr.P.C.

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

advanced the following arguments:

(i). That the entire prosecution case is based on false and

fabricated circumstantial evidence.

(ii). That the evidence led by the prosecution in support of the

charges is flimsy and unreliable.

(iii). That when the Mrig Report (Ex.P/29) was lodged, a clear

observation was recorded therein that the dead body was not

fit for identification and even its gender could not be

ascertained. In these circumstances, the claim of the

prosecution witnesses i.e., the informant and his relatives

that they saw the dead body at the hospital and identified

the same to be that of Raghuveer is absolutely unacceptable.

He submitted that if at all the prosecution was desirous of

establishing the identity of the deceased, then, it was

essential that DNA comparison should have been conducted.

(iv). That the theory that the witnesses PW.1 Hari Singh and PW.2

Ravi Kumar informed the complainant regarding they having

seen Raghuveer and Om Prakash proceeding together on

26.07.2010 is absolutely unbelievable. The complainant

mentioned in the report (Ex.P/1) that these two persons

(6 of 20) [CRLA-1009/2011]

approached him on the morning after the dead body had

been cremated and thereafter, he and his family members

proceeded to the house of the accused and questioned him

whereupon, the accused allegedly made an extra-judicial

confession. As per Shri Gill, if the witnesses Hari Singh and

Ravi had informed the complainant regarding they having

seen the accused and the deceased together, then in natural

course of events, the complainant would have proceeded to

inform the police because he was already aware regarding

registration of the Mrig report. Instead of displaying the

natural human conduct, the complainant claims to have

gathered his family members and proceeded to the house of

the accused, who was pressurized to tell the truth and the

alleged extra-judicial confession was extracted by use of

force.

(v). That the testimony of the so-called witnesses of last seen,

PW.1 Hari Singh and PW.2 Ravi Kumar is absolutely

unbelievable. Both witnesses claimed that they were working

in the field of Mahaveer Garhwal on 26.07.2010. They saw

Raghuveer and Om Prakash proceeding towards 16 JSN bus

stand. Hari Singh randomly called Raghuveer Singh and

asked him to put him through a call. He gave a slip bearing

mobile number of his brother-in-law. Raghuveer tried to

connect the number but could not get through. Shri Hari

Singh took back the slip and thereafter Raghuveer and Om

Prakash proceeded towards the bus stand. Shri Gill

submitted that firstly, Hari Singh could not have had any

idea that Raghuveer was having a mobile phone and thus,

(7 of 20) [CRLA-1009/2011]

there was no reason as to why he randomly called

Raghuveer and asked him to put a call through to his

brother-in-law. Hari Singh and Ravi Kumar were working in

the field of Mahaveer Garhwal (PW.11) who was also present

there. Thus, in natural course of events, Mahaveer would be

the first person Hari Singh would rely upon to make the call,

if at all. The Investigating Officer made no investigation

whatsoever regarding the mobile number of Shri Raghuveer.

None of the related witnesses including the first informant

Sukhram (PW.3) disclosed the mobile number of Raghuveer

either in the FIR, during investigation or in their sworn

testimony.

(vi). That the theory put-forth in the statement of Ravi Kumar

(PW.2) that Hari Singh ushered Raghuveer Singh from the

road so as to use his mobile for calling his brother-in-law is

totally unbelievable and concocted. This story has been

created just to frame the accused in this case.

(vii). That the Investigating Officer Bhagla Ram (PW.15) did not

prepare site map of the field of Shri Mahaveer where the two

witnesses were working when they allegedly called the

deceased towards themselves in a purported attempt to

make the phone call. Thus, there is no evidence whatsoever

on the record of the case to even prima facie show, that the

field of Shri Mahaveer was so located that the way to the 16

JSN bus stand, passed adjacent thereto.

(viii).That the recoveries effected by the Investigating Officer at

the instance of the accused are totally concocted. The IO

(8 of 20) [CRLA-1009/2011]

claims to have recovered a Kassi, pant and shirt at the

instance of the accused and it is alleged that the pant and

shirt of the accused and the pant of the deceased tested

positive for presence of 'B' Group blood. Shri Gill submitted

that the incident allegedly took place on 26.07.2010

whereas, the recoveries were effected on 04.08.2010. The

accused was a free bird during this period and thus, there is

no reason as to why, he would preserve the worthless

incriminating articles so as to give an opportunity for the

recovery thereof at a later stage and create evidence against

himself.

7. On these submissions, Shri Gill implored the Court to accept

the appeal, set aside the impugned judgment, acquit the accused

of the charges and direct his release from custody.

8. Per contra, learned Public Prosecutor, opposed the

submissions advanced by the appellant's counsel. He urged that

neither the first informant Sukhram nor the two witnesses of last

seen circumstance namely Shri Hari Singh (PW.1) and Shri Ravi

Kumar (PW.2) had any animosity with the accused appellant and

they had no reason whatsoever to give false evidence so as to

implicate the accused falsely in this case. The testimony of Hari

Singh (PW.1) and Ravi Kumar (PW.2) who have deposed about the

circumstance of last seen and that of Sukhram (PW.3) and

Chananram (PW.4) who have given evidence of extra-judicial

confession against the appellant is absolutely unimpeachable. In

addition thereto, the Investigating Officer too, did not have any ill-

will against the accused. He conducted investigation in an

absolutely fair manner and effected incriminating recoveries acting

(9 of 20) [CRLA-1009/2011]

in furtherance of the informations provided by the accused under

Section 27 of the Evidence Act. The weapon of offence i.e., the

Kassi and blood stained clothes of the accused were recovered and

were sent to the FSL for serological examination. A report

(Ex.P/34) was issued from the FSL establishing presence of 'B'

group blood on the pant of the deceased and the pant recovered

at the instance of the accused. The accused failed to offer any

explanation to this gravely incriminating circumstance. As per

learned Public Prosecutor, the prosecution has proved the

complete chain of circumstances unequivocally establishing the

guilt of the accused. Hence, he implored the Court to affirm the

impugned judgment and dismiss the appeal.

9. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and the record.

10. We would first refer to the sequence of events in this case.

26.07.2010 Shri Raghuveer Singh left his house at around 9:30 AM saying that he was going to his in-law's place 26.07.2010 The witnesses Hari Singh and Ravi Kumar allegedly saw the accused appellant and Shri Raghuveer proceeding towards the 16 JSN bus stand 30.07.2010 Unidentified human dead body was recovered and Mrig Report (Ex.P/11) was lodged by Shri Vinod Kumar, son of the village Sarpanch.

31.07.2010 The complainant Shri Sukhram identified the body which was in a highly decomposed state with the skin, facial muscles etc. all having withered away to be that of Raghuveer. The body was handed over to Shri Sukhram, for cremation which was carried out on the same day

(10 of 20) [CRLA-1009/2011]

01.08.2010 The witnesses Hari Singh and Ravi approached and told the informant Sukhram (PW.3) that they had seen the accused and deceased proceeding together towards the bus stand of 16 JSN on 26.07.2010. On the same day, the complainant and his family members proceeded to the house of the accused Omprakash and questioned him where he allegedly made an extra-judicial confession of having killed Shri Raghuveer. The accused was then taken to the canal where articles of Raghuveer had been thrown. He allegedly jumped therein, was taken out; got injured in the process and was admitted into the hospital.

02.08.2010 The accused was arrested vide memo Ex.P/30

04.08.2010 Recoveries of Kassi and pant & shirt of the accused were effected at the instance of accused vide memos Ex.P/12 & Ex.P/13 respectively.

11. Now, we proceed to discuss the evidence of the material

prosecution witnesses:-

PW.1 Hari Singh and PW.2 Ravi Kumar are the witnesses of

circumstance of last seen. Both claimed that they were working in

the field of Mahaveer Garhwal/Jat who too was present in the

field. The date was 26.7.2010 and the time was between 9:30 to

10:00 AM. They saw Raghuveer and Om Prakash proceeding

towards Chak 16 JSN Bus Stand. Om Prakash was carrying a Kassi

on his shoulder. Hari Singh ushered Raghuveer towards himself for

making a phone call. Om Prakash stayed back on the road. Hari

Singh gave a slip containing the phone number of his

(11 of 20) [CRLA-1009/2011]

brother-in-law to Raghuveer who tried to connect the same but

could not succeed. Hari Singh took back the slip. Thereafter,

Raghuveer and Om Prakash proceeded towards the bus stand. The

witnesses continued to work in the field. On 30 th July, they got

information regarding the dead body. On 31st July, they came to

know that the body was that of Shri Raghuveer. On 1st August,

they proceeded to the house of Raghuveer and shared the

information regarding having seen the victim proceeding with Om

Prakash on 26.07.2010. In cross-examination, Hari Singh (PW.1)

stated that the police prepared a site plan of the place where they

were working and took his signatures and so also of Ravi and

Mahaveer on the memo. He stated that Raghuveer and Om

Prakash met him on 26th of the 7th month but he could not state

the year of the incident. He could not state that date or year of

birth of his first child. He went to the house of Sukhram in the

morning at about 7-8 and narrated as to what they had seen. In

cross-examination, Shri Hari Singh was putforth with a question

as to why he called Raghuveer to make the call when Mahaveer

was also having a phone, to which he replied that there was no

balance in Mahaveer's phone. This explanation of the witness

makes his entire testimony unworthy of credence. It is absolutely

unaccetable and impossible to believe that PW.11 Mahaveer who

was the landholder/Jamindar and had engaged labourers to do

work in his field would not be having balance in the phone and

compelled by this circumstance, the labourers would have to

randomly call a passerby to put through a call and that too for a

non-specific reason. Shri Hari Singh (PW.1) admitted in his cross-

examination that he came to know that a dead body had been

found on 30th itself but he did not disclose this fact to the police.

(12 of 20) [CRLA-1009/2011]

He was confronted with his police statement (Ex.D/1) regarding

the material omission that he got a confirmation on 31 st July that

the dead body was that of Raghuveer and that is why, he went to

the house of Raghuveer and told his relatives the story of having

lastly seen the accused and their deceased together. This material

contradiction in the evidence of Hari Singh (PW.1) brings his entire

testimony under a grave cloud of doubt. The most important fact,

which is noticeable from the statements of the witnesses of last

seen is that Hari Singh tried to use the phone of Raghuveer so as

to put a call through to his brother-in-law. However, neither the

relatives of Raghuveer made any reference to the mobile phone

number in use of Raghuveer, nor did the IO make any effort to

unravel the number which was allegedly being used by Raghuveer.

Thus, the very factum of Shri Raghuveer having a mobile phone

with himself becomes doubtful. In all probability, for overcoming

this loophole, a story was created that the accused threw the

mobile phone of Raghuveer in the canal.

12. Mahaveer (PW.11) upon being examined on oath, did not

state that Hari Singh tried to put through a call by using his phone

or that he was not having any balance and that is why his phone

was not used for this purpose. Mahaveer also claimed to be the

witness of last seen. However, there is a material omission in the

FIR (Ex.P/2) that Mahaveer too had seen the accused and the

deceased passing by his field.

13. Ravi Kumar upon being examined as PW.2 gave evidence

almost on the same lines as Hari Singh (PW.1). However, on the

aspect of mobile number which Hari Singh wanted to contact,

(13 of 20) [CRLA-1009/2011]

there is a slight contradiction in the statement of this witness

wherein he stated that Hari Singh took out a diary wherein the

number was scribbled. The witness stated in cross-examination

that he himself had a Nokia mobile whereas Mahaveer did not

have any mobile with him. Apparently thus, there are significant

contradictions inter se in the statement of Ravi Kumar and Hari

Singh on important aspects of their testimony.

14. The evidence of Vinod Kumar (PW.5), the witness who

submitted the Mrig Report (Ex.P/11) is very important on material

aspects of the evidence given by the so-called witnesses of last

seen. Shri Vinod Kumar stated that he submitted the written

report (Ex.P/11) on 30.07.2010. On the very day, the body was

identified to be that of Raghuveer S/o Fusa Ram. After the dead

body had been identified, Chanan Ram (PW.4) called him and told

that Hari Singh and Ravi Kumar had seen Raghuveer and Om

Prakash proceeding together on 26.07.2010. On this, the witness

accompanied with 3-4 persons including Chanan Ram, Sukhram

and Satpal, went to the house of Om Prakash and questioned him

incessantly. He resisted for quite some time but then broke down

and confessed that Raghuveer was having an indecent photo of his

cousin sister which he was showing around. The photo was also

shown to the accused on which, he got enraged and decided to kill

Shri Raghuveer. On the fateful day, he took Raghuveer with

himself and killed him by giving blows of Kassi. In cross-

examination, Shri Vinod denied the suggestion that they had

beaten Om Prakash to extract the confession. Apparently, going by

the story of Shri Vinod Kumar, the story of last seen together

became known to the material prosecution witnesses immediately

(14 of 20) [CRLA-1009/2011]

after the body was identified and the extra-judicial confession was

extracted thereafter. In this background, there was no reason as

to why the complainant waited and delayed filing of the report till

6:00 pm on 01.08.2010. Otherwise also, in wake of the discussion

made hereinabove, we are of the firm view that the evidence of

last seen together circumstance as deposed by the witnesses Hari

Singh (PW.1), Ravi Kumar (PW.2) and Mahaveer (PW.11) is flimsy

and unworthy of credence.

15. The reason for which, the witness Hari Singh claims to have

called Raghuveer near him i.e. to use his phone for putting

through a call to his brother-in-law is absolutely unconvincing and

seems to have been cooked up for showing presence of Raghuveer

and Om Prakash nearby the field of Mahaveer so that the

circumstance of last seen together could be created. Thus, this

circumstance could not be proved by the prosecution by leading

convincing evidence and hence, it deserves to be discarded.

16. For proving motive, the prosecution portrayed a theory that

the accused was suspecting that Raghuveer was having an

indecent photo of his cousin sister in his mobile and that is why,

he killed Shri Raghuveer. However, no corroborative evidence to

establish this fact was collected by the Investigating Officer.

Neither was any witness examined to show as to who the said

cousin sister of the accused was nor did the IO make any effort to

substantiate the existence of the alleged indecent photograph.

17. Chanan Ram (PW.4) stated in his evidence that he went to

the house of Shri Sukhram on the evening of 26 th of the 7th month

(15 of 20) [CRLA-1009/2011]

and saw that Raghuveer's six years old daughter was crying. The

witness asked Shri Sukhram and his wife Shakuntala as to the

reason of the child's distress on which, they stated that Raghuveer

had gone to his matrimonial home because his wife was

expecting. The child Mst. A was unable to bear her father's

absence and thus, she was crying. Sukhram tried to call

Raghuveer but could not succeed as his phone was switched off.

The witness further stated that Sukhram's daughter Sharda told

that Om Prakash had taken away Raghuveer on 26 th July itself.

Chanan Ram kept on making enquiries from Sukhram and Satpal

as to whether they had got any clue regarding Raghuveer's

whereabouts. Thereafter, the witness stated about the sequence of

events which have already been narrated above. Going by the

story as set out in the statement of Chanan Ram, the prosecution

witnesses were already aware soon after 26.07.2010 that

Raghuveer was not traceable because his mobile phone was not

responding. Furthermore, Sukhram's daughter Sharda had

divulged on 26th itself that Om Prakash had taken away Raghuveer

with himself. That being the situation, there was no reason

whatsoever as to why the relatives would wait till 01.08.2011 and

not inform the police. The circumstances narrated above were

sufficient to alarm the family members to approach the accused

immediately after Raghuveer was not traceable if not to report the

matter to the police.

18. Sukhram (PW.3), the first informant also stated that after

Raghuveer went to his in-law's house, his daughter started crying

and was insisting to talk to her father. However, Raghuveer's

phone was not responding. On 30th, he came to know that a dead

(16 of 20) [CRLA-1009/2011]

body had been recovered in Chak 16. Chanan Ram came to his

house and they tried to locate Raghuveer by calling their relatives.

The body was of Raghuveer. The witness initially stated that he

saw the dead body on 30th.. Then he stated that he had seen the

dead body on 27th itself. In cross-examination, Shri Sukhram

stated that Raghuveer's father-in-law was Ram Singh and his

brother in law was Vinod. He used to talk to both these persons on

phone. As Raghuveer's phone was responding as switched off, he

contacted his brother-in-law and father-in-law on which they

divulged that Raghuveer had not arrived to their house. Sukhram

called his other relatives but drew a blank response from all

places. He called his relatives on 26th itself. On 27th, he told Shri

Vinod Kumar that Raghuveer was not traceable. He had supported

Vinod's mother in the elections for the post of Sarpanch. The

accused Om Prakash was opposing her. He was told by Satpal

regarding the recovery of the dead body from the Chak 16. He did

not file a report immediately thereafter. The police gave him the

dead body on 31st. Still, he did not file any report at the police

station. Nearby the place where the dead body was found, NREGA

work was going on and about 50 laboureres used to work there

from 8:00 AM to 5:00 PM. The bus ticket which was recovered

from the pocket of Raghuveer was of 26 th and was for the route

Rawatsar to Sangaria. The bus ticket recovered from the shirt

pocket of Shri Raghuveer completely destroys the prosecution

case. If at all, Raghuveer had left his house for proceeding to his

matrimoial home on 26th and was murdered within an hour of

having been seen together with accused Om Prakash, then he

could not be carrying a bus ticket of the route Rawatsar to

Sangaria dated 26 July. It is thus clear that Raghuveer must have

(17 of 20) [CRLA-1009/2011]

left his home on an earlier date, travelled in a bus from Rawatsar

to Sangaria and some time thereafter he was murdered. Thus, the

entire prosecution case regarding Raghuveer leaving his house on

26.07.2010 accompanied with the accused Om Prakash, is totally

unbelievable.

19. The medical jurist PW.9 Dr. Jitendra Soni, who being a

member of the medical board, conducted autopsy on the dead

body alleged to be of Raghuveer on 31.07.2010, stated that the

dead body was highly decomposed. Many parts thereof were

missing and no opinion could be given regarding the cause of

death. It is categorically mentioned in the Mrig Report (Ex.P/11)

that the body was not fit to be identified. As per the evidence of

Sukhram (PW.3), his cousin brother Satpal was present when the

dead body was recovered and enquiry under Section 174 Cr.P.C.

was undertaken. However, even Satpal could not identify the body.

Thus, there is an imminent doubt that the dead body was that of

Raghuveer.

20. The Investigating Officer Shri Bhaglaram (PW.15), SHO PS

Nohar gave evidence regarding various steps of investigation viz,

the informations given by the accused (Ex.P/33) under Section 27

of the Evidence Act leading to the recovery of a blood stained pant

and shirt from inside a trunk in his residential premises. The IO

admitted that as per the evidence of material witnesses,

Raghuveer had left his house in the morning and was scheduled to

return in the evening but he did not report back.

(18 of 20) [CRLA-1009/2011]

21. In this background, there was no reason as to why the

family members did not lodge a missing person report. Clearly

thus, the links in the chain of circumstantial evidence, on which

the prosecution relied upon to bring home the charges are not

convincing and are rather totally flimsy. These incriminating

circumstances could not be proved by convincing and reliable

evidence.

22. Law is well settled by a catena of precedents that in a case

based purely on circumstantial evidence, the prosecution is

required to prove every link in the chain of circumstances by

leading clinching evidence so as to complete the chain pointing

infallibly towards the guilt of the accused and incompatible with

his innocence.

23. Reference in this regard may be had to to the Supreme

Court judgment in the case of Shanti Devi vs. State of

Rajashtan, reported in 2012 12 SCC 158 wherein it was held as

below:-

"8. Having heard learned Counsel for the respective parties and having bestowed our serious consideration to the judgment impugned before us and other material papers, as it is a case of circumstantial evidence, we wish to quote the well settled principles laid down by this Court in various decisions which are to be applied in order to examine the conclusions arrived at by the Courts below while convicting the accused based on circumstantial evidence. The principles laid down in those decisions can be mentioned before finding out whether or not the conviction and sentence on the Appellant can be held to have been established as stated in the judgment of the High

(19 of 20) [CRLA-1009/2011]

Court as well as that of the learned Trial Court. The principles can be set out as under:

(i) The circumstances from which an interference of guilt is sought to be proved must be conjointly or firmly established.

(ii) The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

(iii) The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that with an all human probability, the crime was committed by the accused or none else.

(iv) The circumstances should be incapable of explanation on any reasonable hypothesis, same that of the guilt of the accused."

24. In wake of the discussion made hereinabove, we are of the

opinion that the conclusions recorded by the learned trial court in

the impugned judgment dated 11.11.2011 while placing reliance

on the flimsy links of circumstantial evidence viz. last seen, extra-

judicial confession and recoveries are baseless and unsustainable

on the face of record. As a consequence, the impugned judgment

dated 11.11.2011 cannot be sustained and is herby quashed. The

accused appellant is acquitted of the charges. He is in custody and

shall be released forthwith, if not wanted in any other case. The

appeal is allowed in these terms.

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