State vs Mikku @ Mukesh @ Shyam Sunder
2022 Latest Caselaw 3755 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Crml Leave To Appeal No. 470/2019

State, Through PP

----Appellant Versus

1. Mikku @ Mukesh @ Shyam Sunder S/o Jagdish Prasad, B/c Swami, R/o Ward No. 17, Hanuman Dhora, Sujangarh (Distt. Churu)

2. Sadiq S/o Lal Khan, Aged About 20 Years, B/c Kayamkhani, R/o Near Pani Ki Tanki, Hanuman Dhora, Sujangarh (District Churu).

3. Ravi Panwar S/o Shri Poonam Chand, Aged About 20 Years, B/c Dhobi, Resident Of Near Paniki Tanki, Hanuman Dhora, Sujangarh (District Churu).

4. Atul Soni S/o Hari Om, Aged About 25 Years, B/c Soni, R/o Near Ramgarhia Dharmshala, Sujangarh (District Churu).

                                                                   ----Respondents


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



           HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MS. JUSTICE REKHA BORANA

                                       Order

10/03/2022

The instant application under Section 378 (iii) and Sub-

clause (i) Cr.P.C. has been filed by the State of Rajasthan seeking

leave to file an appeal against the judgment dated 18.05.2019

passed by learned Addl. Sessions Judge, Sujangarh, District Churu

in Sessions Case No.12/2012 whereby, the respondents were

acquitted of the charges for the offences punishable under Section

(2 of 5) [CRLLA-470/2019]

302/34 IPC and Section 4/25 of the Arms Act (against the accused

Mikku @ Mukesh).

We have given our thoughtful consideration to the

submissions advanced by learned Public Prosecutor and have gone

through the impugned judgment.

The case of the prosecution commenced with the FIR

(Ex.P/13) lodged by Kamal Kishore Mali, the complainant at the

Police Station Sujangarh on 16.03.2012 alleging inter alia that his

brother Mahesh received a call on 16.03.2012 at about 3:30 in the

afternoon. After attending the call, Mahesh took key of the

motorcycle from the informant and went away to some place on

the motorcycle. Half an hour later, Santosh Soni, friend of Mahesh

made a call on his mobile phone on which, some unknown person

answered saying that Mahesh was not there. Later on, they came

to know the Mahesh has been stabbed to death and the dead body

had been found in a Nohra near the Mega Highway. The police

picked up the dead body of Mahesh from the Nohra and deposited

the same in the hospital mortuary. It was alleged that the caller

who made the call to Mahesh, had killed him by deceit. Suspicion

was cast on Mikku Swami @ Mukesh Swami S/o Shri Jagdish

Swami, Sunil Tak @ Bholu S/o Madanlal Tak, Sunil Bhargav S/o

Shri Jagdish, Ajay Jat, Sunil Bijarnia, Banwari Batesar etc with an

allegation that they were bearing animosity with Mahesh and they

might have killed him or might have arranged for his murder. After

registration of the FIR, the accused respondents were arrested

and certain recoveries (to be specific blood stained clothes etc of

the accused persons) were effected at their instance. The dead

(3 of 5) [CRLLA-470/2019]

body of Shri Mahesh was subjected to autopsy and a postmortem

report (Ex.P/39) was received. The weapons of offence were

recovered from the place of incident. Upon conclusion of

investigation, a charge-sheet came to be filed against the accused

persons for the offences punishable under Sections 302/34 IPC

and Section 4/25 of the Arms Act (against the accused Mikku @

Mukesh). The prosecution examined as 24 witnesses and exhibited

84 documents to prove its case. No direct evidence was adduced

before the trial court to bring home the charges and the

prosecution case was purely based on circumstantial evidence.

The witnesses of circumstance of last seen did not support the

prosecution case and were declared hostile.

The medical jurist Dr. Dilip Soni (PW.19) stated that he did

not hand over the clothes of the victim to the police and thus,

there is no plausible evidence on record of the case to satisfy the

Court as to how the blood group of the deceased could be

established. The prosecution also placed reliance on certain call

details in an endeavour to prove its case as against the accused.

However, the mandatory certificate under Section 65-B of the

Evidence Act was not proved by the prosecution. The only

semblance of evidence which thus, remained with the prosecution

so as to bring home the charges was the FSL report (Ex.P/66).

However, as has been noted above, the prosecution could not

prove the factum of recovery of allegedly blood stained clothes of

the deceased by reliable evidence. The trial court concluded this

finding against the prosecution vide discussion made at page 72 of

the impugned judgment. Since the factum of recovery of the

clothes of the deceased was not proved by reliable evidence,

(4 of 5) [CRLLA-470/2019]

apparently, the exercise undertaken by the prosecution to match

the blood stains found on the clothes recovered at the instance of

the accused persons with the blood group of the deceased was

nothing short of an exercise in futility. In addition thereto, the trial

court at Page Nos.79 & 80 (Point Nos. 6 & 7) of the impugned

judgment took note of the fact that the prosecution did not lead

proper evidence to prove the link evidence regarding the samples

of incriminating articles having remained intact till they reached

the FSL. Hence, the FSL report (Ex.P/66) was rightly discarded by

the trial court as being an unreliable document.

The trial court was absolutely justified in discarding all links

in the chain of circumstantial evidence which were proposed by

the prosecution to prove the charges against the accused persons.

Law is well settled by catena of Supreme Court judgments

that in a case of murder based purely on circumstantial evidence,

the prosecution must prove the whole chain of circumstances

pointing only and only to the guilt of the accused;- inconsistent

with any suggestion of his/their innocence/involvement of any

other person in the offence. Even if a single link from the chain of

circumstances is found missing, then the chain will be snapped

with a consequence of the court being compelled to discard the

entire prosecution case. In the case at hand, manifestly, the

prosecution could not prove even a single of the so-called

incriminating circumstances so as to bring home the charges

against the accused respondents. The impugned judgment dated

18.05.2019 has been passed after thorough and apropos

appreciation of evidence available on record and the findings

(5 of 5) [CRLLA-470/2019]

recorded therein are unimpeachable. Hence, the same does not

warrant any interference.

As a consequence, there is no reason so as to grant leave to

the State of Rajasthan for filing an appeal against the impugned

judgment dated 18.05.2019 passed by learned Addl. Sessions

Judge, Sujangarh, District Churu in Sessions Case No.12/2012.

Consequently, the leave to appeal application fails and is

dismissed as being devoid of merit.

                                   (REKHA BORANA),J                                        (SANDEEP MEHTA),J
                                    25-Sudhir Asopa/-









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