Rajasthan High Court - Jodhpur
State vs Surendra Kumar @ Mandia on 20 May, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Murder Reference No. 3/2021
State, Through PP
----Petitioner
Versus
Surendra Kumar @ Mandia S/o Sh. Banshilal, R/o Ward No. 10,
Dulmana, Tehsil Pilibanga, Dist. Hanumangarh.
----Respondent
Connected With
D.B. Criminal Appeal (DB) No. 2/2022
Surendra Kumar @ Mandia S/o Bansilal, Aged About 19 Years,
Ward No. 10 Dulmana Tehsil Pilibanga Dist. Hanumangarh,
Rajasthan. (Presently Lodged At Dist. Jail, Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
Mr. Nishant Motsara for accused-appellant Surendra Kumar
Mr. Anil Joshi, GA-cum-AAG (In Charge)
Mr. R.R. Chhaparwal, PP
Mr. Manjeet Godara for complainant.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
JUDGMENT
Date of Pronouncement :- 20/05/2022
Judgment Reserved on :- 05/03/2022
BY THE COURT : PER HON'BLE MEHTA, J.
REPORTABLE
1. The accused appellant Surendra Kumar @ Mandia has been
convicted for the offences punishable under Sections 450, 376 and
302 IPC and has been sentenced as below vide judgment dated
(2 of 31) [MREF-3/2021]
29.11.2021 passed by learned Sessions Judge, Hanumangarh in
Sessions Case No.63/2021:-
Offence Sentence and fine awarded
Section 302 IPC Death penalty with a fine of Rs.10,000/-. In case,
the death penalty is not affirmed, the appellant
shall undergo additional simple imprisonment of 1
year.
Section 376 IPC Life imprisonment with a fine of Rs.10,000/- and
in default of payment of fine, 1 year's additional
simple imprisonment
Section 450 IPC 3 years' simple imprisonment and a fine of
Rs.10,000/- and in default of payment of fine, 6
months' additional simple imprisonment.
2. Facts in succinct are noted hereinbelow:-
3. Banwarilal (P.W.1) lodged a written report (Ex.P/1) to the
SHO, Police Station Pilibanga at the place of incident i.e.,
Village Dulmana, Tehsil Pilibanga on 16.09.2021 at 5.00 AM
alleging inter alia that his sister-in-law Smt. Guddi Devi, aged 60
years, widow of Late Shri Rajaram, used to live alone in Dulmana.
Shri Rajaram had expired 3 years ago. The couple was issueless.
On 15.09.2021, in the night at about 10.30 PM, Smt. Guddi Devi
came to the house of the first informant and complained that
Surendra Kumar @ Mandia son of Banshilal Meghwal had come to
her house with a malevolent intent and tried to outrage her
modesty. She rebuked the accused on which, he snatched her
mobile phone and ran away. Guddi Devi requested Shri Banwarilal
to retrieve her mobile from the accused. The complainant replied
that looking to the late hours, he would take remedial measures in
the morning and that she should sleep in his house. Guddi replied
that she had to keep an eye on her buffaloes and other animals
(3 of 31) [MREF-3/2021]
and saying so, she went back to her house. In the night at about
1 O' Clock, Rajaram S/o Roopram Meghwal informed him that
Surendra @ Mandia Meghwal had approached him in an inebriated
condition and blurted out that he had killed Guddi Devi by
strangulating her. On this, the informant, accompanied by
Rajaram, Shyopatram and Sahdev went to the house of Smt.
Guddi Devi and saw her lifeless body lying on a cot. It was alleged
that Surendra Kumar had broken into the house of Guddi Devi in
the night time with the intention to rape her and in this process,
he strangulated and killed the lady. The dead body of Guddi Devi
was lying at her house in Dulmana.
4. The report was forwarded to the Police Station Pilibanga
where, FIR No.376/2021 was registered for the offences
punishable under Sections 450, 376 and 302 IPC. The
investigation was assigned to SHO Shri Inder Kumar (PW.12), who
undertook spot inspection. Panchayatnama Lash was prepared.
The dead body of Guddi Devi was subjected to autopsy at the
Government Hospital, Pilibanga from where, postmortem report
(Ex.P/9) was issued with the opinion that cause of death of Smt.
Guddi Devi was asphyxia. However, final opinion was reserved for
receiving the FSL report. A clump of hair clutched in the left hand
of Guddi Devi was seized vide Seizure Memo Ex.P/6. Two foot
moulds of the suspect and other material pieces of evidence were
lifted from the spot. Photography of the crime scene was
undertaken. The accused appellant was arrested. Acting in
furtherance of the information provided by him to the
Investigating Officer under Section 27 of the Evidence Act, a
mobile phone alleged to be that of the victim was recovered. The
(4 of 31) [MREF-3/2021]
specimen foot-moulds of the accused were prepared for the
purpose of comparison through the Forensic Science Laboratory.
Blood and hair samples were collected from the accused for the
purpose of DNA comparison.
5. Upon conclusion of investigation, a charge-sheet came to be
filed against the appellant herein for the offences mentioned
above. The case was committed to the court of Sessions Judge,
Hanumangarh where charges were framed against the appellant in
these terms. He pleaded not guilty and claimed trial. The
prosecution examined as many as 12 witnesses and exhibited 68
documents to prove its case. Upon being questioned under Section
313 Cr.P.C. and when confronted with the circumstances appearing
in the prosecution evidence, the accused denied the same and
claimed that as a matter of fact, Rajkumar was having illicit
relations with the deceased. He opposed the same on which,
Rajkumar got him falsely implicated in the case. Four documents
were exhibited but no oral evidence was led in defence.
6. Upon hearing the arguments advanced by the learned Public
Prosecutor and the learned counsel for the complainant and after
appreciating the evidence available on record, the learned trial
court proceeded to convict and sentence the appellant as above.
The murder reference No.03/2021 has been instituted for
confirmation of the death sentence under Section 366 Cr.P.C.
whereas, the appeal No.02/2022 has been filed under Section
374(2) Cr.P.C. by the accused for challenging the impugned
judgment of conviction.
(5 of 31) [MREF-3/2021]
7. Shri Nishant Motsara, learned counsel representing the
appellant, vehemently and fervently urged that the entire
prosecution case is false and fabricated. He contended that the
very fact of the registration of the FIR at 5.00 AM is falsified from
the Roznamcha Entry Ex.P/18, as per which, the police party
departed from the police station for the place of incident at 5:41
AM. Thus, there was no possibility that the FIR could have been
lodged at 5.00 AM as claimed by the complainant and the SHO. He
contended that the FIR is an ante-timed post investigation
document. There is no allegation of rape in the FIR (Ex.P/2) as
well as the investigational statement of the star prosecution
witness Banwarilal (PW.1). Rajaram who was named in the FIR as
the witness of extra-judicial confession, was not examined on oath
and in his place, a different man Rajkumar (PW.3), was examined
to buttress this cooked up theory. The trial court disbelieved the
prosecution case regarding Rajkumar being the person before
whom, the extra-judicial confession was allegedly made by the
appellant. Criticizing the circumstance of matching foot moulds,
Shri Motsara urged that the first informant and his companions
had traipsed and trampled the crime scene before the police
arrived there and thus, there was no possibility of the foot-moulds
of the suspect having been preserved. Furthermore, the IO could
not have had any means to isolate the two particular foot-moulds
from the foot marks of the deceased and the witnesses who had
disturbed the crime scene before the foot moulds were lifted. He
further submitted that the specimen foot moulds of the accused
were collected by the SHO Police Station Pilibanga Shri Inder
Kumar (PW.12), vide memorandum Ex.P/23 by associating only
two police personnel as panch witnesses which is in total
(6 of 31) [MREF-3/2021]
contravention of the procedure provided under Rule 6.26 of the
Rajasthan Police Rules. He further contended that the blood and
the hair sample of the accused were collected without obtaining
his consent because the form (Ex.P/16) on which, the consent is
recorded, is in English language with which the accused is not
acquainted. Only two police officials were associated in this
procedure as well and hence, the consent of the accused is tainted
by duress. He further urged that recovery of mobile phone shown
to have been effected from the appellant, vide memorandum
Ex.P/21 claiming that it was of the deceased, is also false and
fabricated. The prosecution has come out with a case that the
accused trespassed into the house of the deceased for seeking
sexual gratification and in that background, there was no rhyme
and reason as to why he would pick up the mobile phone of the
deceased. He pointed out that the receipt Ex.P/42 on which, the
prosecution placed reliance in order to prove that this very mobile
instrument was purchased by the deceased, was not proved as per
law because, owner of the Guru Mobile Cafe from where, the
receipt was issued was not examined in evidence. Furthermore,
the receipt is apparently fabricated because the IMEI number of
the mobile phone is not mentioned therein. Learned counsel Shri
Motsara strenuously contended that the impugned judgment is
perverse on the face of it because the Presiding Officer referred to
the examination-in-chief of all the prosecution witnesses and
mechanically discarded the cross-examination conducted by the
defence with a bald observation that nothing significant was
elicited therein. However, as per Shri Motsara, extensive cross-
examination was conducted from all the prosecution witnesses and
the truthfulness of the version set out in examination-in-chief was
(7 of 31) [MREF-3/2021]
totally shaken and dislodged. He urged that it was imperative for
the trial court to have dealt with the cross-examination conducted
from the witnesses in detail. The cursory approach of rejecting the
cross-examination by observing that nothing special was elicited
therein, is unwarranted and reflects a perfunctory approach.
8. Shri Motsara referred to the statement of the Medical Jurist
Dr. Hariom Bansal (PW.4) and urged that the witness admitted
that the death of Smt. Guddi Devi could have occurred on
15.09.2021 after 11.30 AM. He thus urged that the time of death
as stated in the FIR and the evidence of the material witnesses is
contradicted by the opinion of the Medical Jurist. He further urged
that no external marks of violence were found anywhere on the
victim's dead body including the neck and the private parts and
hence, the finding recorded by the trial court that the appellant,
first subjected the victim to rape and then, strangulated her are
unsustainable as being contradicted by the medical evidence. On
these grounds, Shri Motsara implored the court to accept the
appeal, turn down the reference, set aside the impugned
judgment and acquit the accused of the charges.
9. Per contra, learned Public Prosecutor and the learned counsel
Shri Manjeet Godara, representing the complainant, vehemently
and fervently opposed the submissions advanced by the
appellant's counsel. They urged that the prosecution witnesses
had no animosity whatsoever with the accused appellant. The FIR
(Ex.P/2) was lodged by Shri Banwarilal (P.W.1), with the SHO,
Police Station Pilibanga at the place of incident on 16.09.2021 at
5.00 AM i.e., within few hours of the incident wherein, it was
(8 of 31) [MREF-3/2021]
clearly alleged that the deceased herself approached the first
informant at 10.30 in the night and complained that the accused
had entered her house and tried to molest her. When she resisted,
the accused snatched her mobile phone and ran away. Shri
Banwarilal reaffirmed this allegation when he was examined on
oath. No cross-examination whatsoever was undertaken from Shri
Banwarilal on this important aspect of his testimony.
10. They further submitted that the witnesses Banwarilal (PW.1)
and Sahdev (P.W.2), have clearly stated that the accused made an
extra-judicial confession before Rajaram/Rajkumar. The father's
name of Rajaram has been mentioned in the FIR as Rooparam.
Rajkumar S/o Shri Roopa Ram appeared in the witness box as
PW.3 and stated that the accused who was his distantly related
nephew came to his house and made an extra-judicial confession
regarding having strangulated and killed Guddi Devi. They
contended that the flimsy defence theory regarding the victim
having been murdered by Rajkumar, is totally an afterthought and
has no substance whatsoever. It was submitted that the finding
recorded by the learned trial court in the impugned judgment that
Rajkumar was not the same person as Rajaram, named in the FIR
and that the prosecution failed to examine Rajaram in this case is
perverse and unsustainable.
11. Learned Public Prosecutor and the complainant's counsel
further submitted that the accused has rightly been found guilty
by the trial court on the basis of strong and unimpeachable
circumstantial evidence in the form of (a) oral disclosure made by
the victim to Shri Banwarilal regarding malevolent behaviour of
(9 of 31) [MREF-3/2021]
the accused just before the murder, (b) extrajudicial confession
made by the accused, (c) finding of his foot-marks at the place of
incident and (d) recovery of his hair from the hands of the victim
which fact has been established by the DNA analysis report
Ex.P/11.
12. They thus urged that the impugned judgment convicting and
sentencing the accused appellant as above, is unimpeachable on
facts as well as law. They implored the Court to confirm the
sentence of death awarded to the appellant by the learned trial
court while affirming the impugned judgment and to dismiss the
appeal.
13. We have given our thoughtful consideration to the
submissions advanced at bar and have carefully re-appreciated
the evidence and the record. We now proceed to discuss the
evidence led by prosecution to bring home the charges.
14. The first informant Banwarilal (PW.1) lodged the written
report (Ex.P/1) alleging inter alia that on 15.09.2021, his sister-
in-law Guddi Devi (deceased), came to his house at 10.30 PM
complaining that the appellant had entered her home with a
malevolent intention and tried to outrage her modesty. When she
resisted, the accused snatched her mobile phone and went away.
This allegation was reiterated by Shri Banwarilal in his sworn
testimony. On a perusal of the cross-examination conducted from
the witness, it comes to light that the only suggestion which was
given by the defence counsel to impeach this aspect of
Banwarilal's testimony was as to why he did not call the police
(10 of 31) [MREF-3/2021]
after Guddi Devi came to his house and complained regarding the
incident. The witness explained that this was a routine affair and
the accused would often quarrel with Guddi Devi. It can easily be
discerned from this revelation made by the witness that the
accused must have been in a habit of taking liberties with the
issueless old woman, who was living alone in her house after the
death of her husband. The witness Banwarilal did not take the
incident seriously and assured Guddi Devi that he would take
steps for retrieval of her mobile phone in the morning. Hence, the
fact regarding the appellant having visited the house of Guddi
Devi in the night time and trying to take liberties with her is duly
established as this fact was stated to Shri Banwarilal by Guddi
Devi herself and can be considered admissible under Section 32 of
the Evidence Act. The witness advised Guddi Devi to stay in his
house but she refused the offer saying that she could not abandon
her buffaloes and other cattle. It seems that Guddi Devi was also
not much bothered by the unsolicited visit of the accused to her
house and only desired retrieval of her mobile and that is why she
approached Banwarilal and made a complaint to him. A significant
fact which emerges from the above set of facts is that the accused
left the house of Guddi Devi sometime before 10:30 pm. In the
second part of the FIR, Banwarilal narrated that Rajaram son of
Ruparam Meghwal informed him in the night at about 1 o'clock
that Surendra had approached him and admitted to have killed
Guddi Devi by strangling her. Though, it has been mentioned in
the FIR that it was Rajaram S/o Shri Ruparam who told the
informant regarding the extra-judicial confession made by the
accused as above. However, Banwarilal, when examined on oath,
modulated the story and alleged that Rajaram @ Raju came to his
(11 of 31) [MREF-3/2021]
house at about 1:00-1:30 am. He was accompanied by Sahdev
and Shyopat Ram and told the informant that the accused had
confessed to the murder of Smt. Guddi. The witness admitted in
cross-examination that Rajkumar and Rajaram are not the same
persons. Thus, there is a grave discrepancy in the FIR and sworn
testimony of the witness on this important aspect of the
prosecution case. To summarize, there are grave discrepancies in
the FIR and sworn testimony of Banwarilal regarding the following
five important aspects of the case:-
(a) Regarding the precise manner and time at which information
was given by Rajaram to the witness.
(b) Regarding Rajaram being accompanied by Sahdev and
Shyopat Ram.
(c) The witness Rajaram coming to the house of the complainant
and telling him this fact and
(d) The alias of Rajaram being Raju.
(e) That Rajaram told that accused had confessed to committing
rape with the victim.
These contradictions and improvements in the sworn
testimony of Banwarilal viz.-a-viz., the story as set out in the FIR
create a significant doubt on his evidence.
15. Banwarilal, then stated that they proceed to the spot and
informed the police which arrived at the crime scene at about
3.30-4:00 AM. However, as per the Roznamcha Entry (Ex.P/18),
the police officers departed from the police station for the place of
(12 of 31) [MREF-3/2021]
incident at 05.41 AM. Thus, the testimony of Banwarilal is also
falsified on this important aspect of the case.
16. Sahdev (PW.2), stated in his evidence that Guddi Devi was
issueless and used to live alone in her house after the death of her
husband. On 15.09.2021, Rajkumar son of Ruparam called him
and told that Surendra @ Mandia had approached him in an
intoxicated state and confessed that he had strangled Guddi Devi.
The witness picked up his motorcycle and went near the house of
Rajkumar where he met Shyopat Ram and Raju @ Rajkumar.
Thereafter, they picked up Banwarilal from his house and went to
the house of Guddi Devi. Police was informed. Sahdev did not
claim to be related to Smt. Guddi and thus, there was no reason
as to why Rajkumar would confide in him regarding the incident.
Be that as it may. In cross-examination, the witness admitted that
they did not go to the house of Guddi Devi before arrival of the
police team and that he, Shyopat Ram, Rajkumar, Banwari and 5-
6 police personnels reached the place of incident together. In this
regard, it may be stated here that the SHO Inder Kumar (PW.12)
stated that he and the police team reached the place of incident at
around 5 O' clock. The evidence of Sahdev is also contradicted
from the facts elicited in the cross-examination of Banwarilal
(PW.1) who admitted that he, Shyopat, Raju and Sahdev went to
the house of Guddi Devi in the night time and no one else was
accompanying them. They called the police from the crime scene
and the police arrived at about 3:30 to 4 O' clock i.e,. after 10-15
minutes after Sahdev had made the call to the police station.
Manifestly thus, there is a grave contradiction inter se in the
statements of Banwarilal (PW.1) and Sahdev (PW.2) vis-a-vis the
(13 of 31) [MREF-3/2021]
statement of the SHO Shri Inder Kumar regarding the sequence in
which the witnesses and the police officers reached the crime
scene.
17. The prosecution examined Rajkumar as P.W.3 in a purported
attempt to establish that he was none other than Rajaram,
featured in the FIR as the witness of extrajudicial confession. The
witness stated that he worked as a labourer in Pilibanga Mandi. On
15.09.2021 at about 7:00 PM, he returned home, consumed food
and went to sleep. At about 12.42 AM, Surendra @ Mandia called
him but he did not answer the phone. The witness then called
Surendra who blurted out that he had killed a person and was
coming over to his house. Surendra came to his house in an
intoxicated state and told him that he had killed Rajaram's wife
Guddi Devi by throttling her. The witness advised him to return
home. Thereafter, he called Shyopat Ram and Sahdev. All three
approached Banwarilal and informed him of this incident. Then,
Sahdev called the police. After the police had arrived, they went to
the crime scene and saw Guddi Devi's dead body lying on a cot. In
cross-examination, the witness stated that when he called the
accused, he admitted to have killed a person. After coming to his
house, the accused confessed that he had killed Guddi. The
witness stated that the accused was his nephew in relation and
that is why he came to the house and made the confession. The
witness admitted not having informed the police after the accused
made this confession and rather advised him to go back. The
witness denied the defence suggestion that the accused neither
approached him nor he made the alleged confession. The witness
admitted that they reached the house of Guddi Devi with the
(14 of 31) [MREF-3/2021]
police between 02.30 to 03.00 AM and inspected the place of
incident. He informed the police immediately that Surendra had
come to his house and had made the confession. Thus, there is a
discrepancy/contradiction in the evidence of Rajkumar as well
regarding the sequence of going to the place of incident.
18. The case set up by the prosecution that Rajaram told
Banwarilal regarding the extrajudicial confession made by the
accused was dealt with by the trial court at para No.16 of the
impugned judgment which is reproduced for the sake of ready-
reference:-
"16- bl izdkj ih-M- 1 cuokjh yky dh lk{; ls ;g izdV gksrk gS fd mls
jktkjke }kjk ?kVuk ds laca/k esa tkudkjh nh xbZ gSA ;|fi gLrxr izdj.k esa jktkjke dks
vfHk;kstu }kjk ijhf{kr ugha djok;k x;k gS] ijUrq blls vfHk;kstu dgkuh ij dksbZ
foijhr izHkko ugha iM+rk gS] D;ksafd ;fn ifjoknh ih-M- 1 cuokjh yky dh lk{; esa lPpkbZ
ugha gksrh rks ,slk dksbZ dkj.k ugha Fkk fd vfHk;qDr cpko lk{kh ds :i esa jktkjke dks
is"k ugha djrk] ijUrq vfHk;qDr us cpko lk{; esa Hkh jktkjke dks izLrqr dj ijhf{kr ugha
djok;k gSA ,slh fLFkfr esa ih-M- 1 cuokjh yky ds mijksDr dFku v[kf.Mr jgus ds
dkj.k mu ij vfo"okl fd;s tkus dk dksbZ dkj.k ugha jgrk gSA ,slh fLFkfr esa ;g
izekf.kr gksrk gS fd ?kVuk ds laca/k esa ifjoknh ih-M- 1 cuokjh yky dks jktkjke }kjk
lwpuk nh xbZ FkhA"
19. The witness Shyopatram, who allegedly accompanied
Banwarlilal, Rajkumar and Sahdev was not examined by the
prosecution.
20. The Investigating Officer Shri Inder Kumar (P.W.12),
admitted in his cross-examination that when he reached the place
of incident, the door of the house was open. None of the
(15 of 31) [MREF-3/2021]
witnesses were present there when he arrived at the crime
scene. No struggle marks were visible in the room where Smt.
Guddi Devi had been murdered. The SHO was put questions
regarding the Roznamcha Entry pertaining to departure of police
team for proceeding to the place of incident to which, the witness
feigned ignorance. He admitted that he could not say as to when
he left the police station and also could not precisely state the
time of arrival at the crime scene. He admitted having made an
entry in the Roznamcha before departing for the crime scene.
Name of the informant was not mentioned in the Roznamcha entry
(Ex.P/18). The distance between the police station and the place
of incident is merely four kilometers.
21. This Roznamcha Entry was proved by Radheyshyam, (P.W.7),
who was posted as ASI at the Police Station, Pilibanga. The
witness stated that the SHO took him and other members of the
police team and left for the crime scene in the police jeep at 03.10
AM. Departure of the team was recorded in the Roznamcha Entry
Ex.P/18 and the return entry was made as Ex.P/19. It may be
mentioned here that the Roznamcha Entry (Ex.P/18) bears the
time 5:41 and thus, the police team could not have left for the
crime scene earlier. Apparently thus, the case set out in the
prosecution evidence regarding the FIR having been submitted by
Banwarilal (PW.1) to the SHO Shri Inder Kumar (PW.12) at 5.00
AM on the crime scene, is patently false and the time of
presentation of the FIR as recorded in Ex.P/1, is a sheer
fabrication. This conclusion is reinforced when we take note of the
fact that the formal FIR (Ex.P/2) was presented in the court of
ACJM, Pilibanga on the next day i.e., 17.09.2021 at 11:00 AM. It
(16 of 31) [MREF-3/2021]
may be mentioned here that 16.09.2021 was Thursday and a
working day. The Police Station Pilibanga is stones throw away
from the Court. Thus, there is no reason as to why, the FIR was
presented in the Court after a significant delay of more than 24
hours. There has been a flagrant violation of Section 157 Cr.P.C.
because the FIR was forwarded to the Court after a gross and
unexplained delay of more than 24 hours.
22. As per the FIR (Ex.P/2) and the statement of Rajkumar
(PW.3), the accused did not state in this alleged extra-judicial
confession that he had subjected the victim to rape. Thus, the
allegation in the FIR that the accused entered the house of the
victim with the intention to rape her and then murdered her could
only have been mentioned after the medical opinion had been
received wherein the presence of semen was suspected in the
private parts of the victim.
23. It is recorded in the Roznamcha Entry (Ex.P/18) that
telephonic information regarding Surendra @ Mandia having
murdered Sunita @ Guddi of Village Dulmana was received at the
Police Station Pilibanga at 3:10 AM. Considering the fact that
departure time of police from the police station as per Rojnamcha
entry was 05:41 AM, the entire sequence of events regarding
Banwarilal, Sahdev and Rajkumar having reached the place of
incident in the dead of the night; the police having arrived there
before 5:00 AM and the submission of the report (Ex.P/1) at 5:00
AM is totally unbelievable and this entire process is tainted and
doubtful. These facts coupled with the gross delay in sending the
formal FIR to the Court of Magistrate creates a genuine doubt that
(17 of 31) [MREF-3/2021]
the FIR must have been drafted under instructions of the police
officer.
24. These grave discrepancies in the prosecution case and the
timing noted in the Roznamcha Entry (Ex.P/18) clearly establish
that the FIR is an ante-timed document which was drafted after
concluding investigation. In view of the facts noted above, the
entire prosecution case will have to be appreciated keeping this
fact in mind.
25. One of the most significant pieces of evidence which the
prosecution relied upon to bring home the charge against the
accused is the alleged extra-judicial confession made before
Rajaram. The complainant's counsel and the learned Public
Prosecutor argued that the finding recorded in the impugned
judgment regarding Rajkumar (PW.3) not being the same person
as Rajaram referred to in the FIR (Ex.P/1) is perverse and should
be reversed. This argument needs to be examined in depth with
analysis of the relevant evidence. The trial court recorded a
finding at Para 16 of the impugned judgment (supra) that Rajaram
before whom the extra-judicial confession was allegedly made was
not examined by the prosecution. Banwarilal (PW.1), admitted
that Surendra's father had two brothers named Vijay and Sugreev.
He admitted the defence suggestion that Rajaram and Rajkumar
are not the same persons. It would be fruitful to reproduce the
following lines from the cross-examination of Banwarilal (PW.1):-
"यह कहना भी गलत है कक राजाराम द्ारा ककोई बात न बताई गई हको। यह कहना
गलत है कक राजकुमार ् राजाराम एक वयककत हको ।"
(18 of 31) [MREF-3/2021]
26. The IO took no steps whatsoever to reconcile this serious
discrepancy in the prosecution case regarding the true identity of
the witness of the alleged extra-judicial confession. We therefore,
feel that the finding recorded by the trial court at para 16 of the
impugned judgment that the prosecution failed to examine the
person named Rajaram in whose presence the accused made the
extra-judicial confession is not liable to interference. The finding
recorded by the trial court at para 16 (supra) of the judgment that
the defence should have examined Rajaram in order to controvert
the prosecution theory of extra-judicial confession is nothing but
putting the cart before the horse. We are compelled to hold that
the conclusion drawn by the trial court in the above referred
paragraph of the impugned judgment that the defence was under
an obligation to examine Rajaram and as it failed to do so, the
version of Banwarilal wherein he stated that the accused made an
extra-judicial confession before the said Shri Rajaram remained
un-controverted, is perverse and illegal on the face of record.
Disclosure made by Rajaram to Banwarilal regarding the so-called
extra-judicial confession made by the accused would be hearsay
which cannot be admitted in evidence. Hence, we are of the firm
view that the prosecution failed to lead proper evidence to prove
the circumstance of extra-judicial confession
27. After eschewing the extra-judicial confession from
consideration, the other pieces of circumstantial evidence which
remain on record to connect the accused with the alleged crime
can be enumerated as below:-
(19 of 31) [MREF-3/2021]
1. Recovery of the mobile phone of the deceased at the
instance of the accused.
2. Recovery of the footprint impressions of the accused from
the crime scene.
3. Recovery of a clump of hair from the hands of the victim
DNA whereof matched with the DNA of the accused.
4. Discovery of semen stains on the clothes of the victim.
28. Now, we proceed to discuss these remaining links of
circumstantial evidence which the learned trial court found to be
proved against the accused. Firstly, we consider the factum of
recovery of mobile phone claimed to have been effected at the
instance of the accused vide memorandum Ex.P/40. In this
regard, suffice it to say that it is an admitted case of the
prosecution that the accused himself owns a smartphone which
was recovered from his possession when his personal search was
taken at the time of arrest vide arrest memo (Ex.P/20). The
mobile phone which was recovered at the instance of the accused
vide seizure memorandum Ex.P/21 is a Bar phone. The
prosecution tried to claim that the said mobile phone had been
purchased by Smt. Guddi on 11.09.2021 vide bill Ex.P/42.
However, this bill bears no details as to who presented the same
to the IO. The owner of the Guru Mobile Cafe from where the bill
was allegedly issued was not examined in evidence. Though the
model number of the mobile phone is mentioned in the bill but the
IMEI number thereof is not mentioned which makes its veracity
doubtful. It at all, the deceased had purchased a mobile
instrument, in natural course, she would be using the same.
(20 of 31) [MREF-3/2021]
However, none of the prosecution witnesses disclosed the sim
number being used by the deceased. The Investigating Officer too,
did not procure the call detail records. Apparently thus, this bill
was also stage-managed by the Investigating Officer just in order
to create evidence against the accused in an endeavour to prove
the case and claim the glory. Consequently, the recovery of the
mobile phone vide memorandum Ex.P/21 neither inspires
confidence nor the same could be linked to the deceased.
29. The next important piece of evidence which the prosecution
has relied upon against the accused is in form of the DNA report
Ex.P/11 as per which, the hair which were recovered clutched in
between the fingers of the victim vide memo Ex.P/6 matched with
the DNA profile of blood collected from the accused vide
memorandum Ex.P/16. The prosecution claimed that after the
dead body had been brought to the mortuary of Community
Health Centre, Pilibanga, the Investigating Officer Inder Kumar
noticed a clump of human hair stuck in the grasp of the deceased
which was seized vide seizure memorandum Ex.P/6. This
document was attested by the witnesses Rajaram and Satpal. At
captioned portion 'G' to 'H' of this memorandum, the
Investigating Officer noted that these hair could be of accused
Surendra Kumar. Apparently, thus, the investigating officer was
already having a pre-conceived notion that the hair recovered
were of Surendra Kumar @ Mandia. This clump of hair was seized
and packed in a polythene bag which was given Mark 'A'. This
memorandum was prepared at 10:45 am on 16.09.2021. The
prosecution also claimed that the dead body of the victim was
(21 of 31) [MREF-3/2021]
photographed by photographer Shri Jagdish Kumar (PW.11) who
stated in his evidence that he clicked the photographs of the dead
body of Smt. Guddi as well as of the place of incident. He snapped
photographs of Guddi Devi's dead body at Pilibanga Hospital
between 9-10 AM. He admitted that nothing was visible in the
hands of the victim as per the photographs Ex.P/32, Ex.P/33 and
Ex.P/34.
30. We have carefully seen the photographs and find that the left
hand of the victim is very clearly visible. In these photographs
Ex.P/32 and Ex.P/33, the fingers of the deceased are bent inwards
but no hair are visibly stuck in between the fingers. As the
photographer snapped the pictures at the mortuary between 9-10
AM, it can be presumed that the dead body must have been
brought there much earlier. But surprisingly, none of the
prosecution witnesses claims to have noticed the clump of hair
stuck in the hands of the deceased before the memo Ex.P/26 was
prepared at 10:45 AM.
31. The witness Ratiram (PW.6) stated that the police seized the
clump of hair from the left hand of Guddi Devi vide memorandum
Ex.P/6. The doctor took out the hair and packed the same.
However, the witness admitted that he did not observe this
procedure.
32. When we take note of the statements of the witnesses
Banwarilal (PW.1), Sahdev (PW.2) and Raj Kumar (PW.3) who
claim to have reached the place of incident and participated in the
(22 of 31) [MREF-3/2021]
proceedings undertaken by the police at crime scene, it becomes
clear that none of them stated that they noticed hair stuck in the
hands of the victim.
33. IO Inder Kumar (PW.12) proved memorandum Ex.P/6 in his
evidence and stated that a clump of hair was visible in the hands
of the deceased as per the photographs Ex.P/32 to Ex.P/34.
However, this claim of the IO is patently incorrect when the
photographs are closely scrutinized.
34. As we have already concluded that the FIR (Ex.P/2) is a post
investigation document, all steps of investigation undertaken by
the Investigating Officer on 16.09.2021 came under a cloud of
doubt.
35. Furthermore, when evidence of the IO Shri Inder Kumar is
scrutinized for the purpose of testing the veracity of the link
evidence required to prove the safe keeping of the samples of this
case, it comes out that he did not utter a single word as to how
the case articles were dealt with after the same were seized by
him during the course of investigation. At the FSL, comparison of
the DNA profiles was carried out interse between the hair allegedly
seized from the victim's fingers and the blood sample collected
from the accused. As per consent form (Ex.P/16), the blood
sample as well as hair of the accused were collected for DNA
profiling. However, the report (Ex.P/11) is silent as to why the
DNA profiles of both Hair Samples was not compared.
Furthermore, the consent of the accused was not properly taken
(23 of 31) [MREF-3/2021]
at the time of collection of the blood and hair samples as the Form
(Ex.P/16) is in english language with which the accused is not
conversant and only two police personnels were associated as
Panchas in this procedure. Thus, this procedure also tainted and
the report (Ex.P/11) has no sanctity whatsoever.
36. The witnesses who were examined pertaining to the deposit
and transit of the Malkhana articles were Rajendra Kumar
(PW.10), Carrier Constable Vijay (PW.13) and Constable
Rameshwar Lal, the Malkhana Incharge who was examined as
PW.5.
37. Rameshwar Lal (PW.5) stated in his evidence that he was the
In-charge of Malkhana of Police Station Pilibanga. Some articles of
this case were deposited in the Malkhana on 16.09.2021.
However, he did not state as to who deposited these article
packets. On 17.09.2021, Radhey Shyam Sub-Inspector (PW.7)
deposited some more articles of the case with him. These
malkhana articles were forwarded to the two different forensic
laboratories, one at Bikaner and the other at Jaipur through
Constables Rajendra Kumar and Vijay Kumar respectively.
38. The prosecution has presented the report (Ex.P/27) received
from the Regional Forensic Science Laboratory, Bikaner, Serology
Division claiming that it provides strong proof to connect the
accused with the crime. The report indicates that human blood
was detected in the vaginal swab and vaginal smear and from the
Ghaghra of the victim. The result for semen blood grouping
(24 of 31) [MREF-3/2021]
proved inclusive in all these articles. Report (Ex.P/55) was
received from the Finger Print Bureau, Government of Rajasthan,
Jaipur as per which, the chance fingerprints lifted from a glass
lying at the place of incident could not be matched with the
specimen fingerprints of the accused. Another report (Ex.P/68)
was received from the Regional Forensic Science Laboratory,
Bikaner, as per which, bare-foot impressions lifted from the place
of incident matched with the specimen impressions prepared from
the foot marks of the accused. Report (Ex.P/10) was received
from the Regional Forensic Science Laboratory, Bikaner as per
which, human semen was detected in the vaginal swab, vaginal
slide smear and clothes of the victim as well as the underwear of
the accused. It may be stated here that the prosecution did not
make any attempt to get the DNA comparison of the semen stains
carried out.
39. Now, we examine the medical evidence in light of the
allegation set out by the prosecution that the accused subjected
the victim to rape and violence in her house during the night time
and in this process, the victim's private parts, got stained with
semen of the accused; the victim tried to resist and in this
process, a clump of hair of the assailant got stuck in her left hand
and was recovered by the IO when the Panchnama proceedings
were undertaken. The accused left behind telltale foot prints at the
crime scene.
40. As per the statement of the medical jurist Dr. Hariom Bansal
(PW.4), there were no marks of struggle on the dead body of the
(25 of 31) [MREF-3/2021]
victim. As per the postmortem report (Ex.P/9), no injury was
detected on the private parts of the victim. Since, the prosecution
has claimed that the victim put up a strong struggle and in this
process, she was able to pull out a clump of hair from the head of
the accused which was subsequently recovered by the IO leading
to the DNA comparison report, manifestly, she must have put up a
strong fight to resist the assault. In this eventuality, injuries were
bound to be noticed on the body of the deceased and so also on
the accused when he was arrested. However, as is evident from
the testimony of the medical jurist PW.4 Dr. Hariom Bansal, not a
single mark of violence was noticed on the dead body of the victim
so much so that even the area of the neck beneath which the
symptoms of asphyxia were noticed, were not having any visible
indications of violence/use of force.
41. The deceased was an old lady of about 60 years. As per the
testimony of Banwarilal, he did not take much cognizance of the
complaint made by Smt. Guddi Devi when she came to him in the
night stating that the accused had taken away her mobile phone.
In cross-examination, the witness admitted that this was a routine
occurrence. Meaning thereby, that there was some kind of
acceptability in the relations between the accused and the victim
and that is why, even though she made a complaint to her
brother-in-law regarding the alleged misbehavior by the accused
in the odd hours of night, he did not think it fit to take any action
thereupon. This being the situation, there was no reason as to
why the accused would be required to go to the extent of using
extreme force on the deceased in his quest for sexual gratification.
(26 of 31) [MREF-3/2021]
Hence, we are of the opinion that the theory putforth by the
prosecution that the accused subjected the deceased to rape and
while he was forcing himself on to the lady, she resisted and in
this process, the accused throttled her is highly doubtful.
42. The prosecution tried to prove through the FSL Report
(Ex.P/27) that semen was detected in the vaginal smear and swab
of the victim. However, if the accused had indulged in an act of
forcible sexual assault on the victim during the process whereof so
much of force was used, that she was choked and also managed
to snatch the hair of the appellant, then this alleged violence
would definitely have resulted into visible external injuries/marks
of struggle being noticed on the victim's dead body. However, it is
an admitted position that the medical jurist did not notice any
such marks of violence when postmortem examination was carried
out and the report (Ex.P/9) was prepared.
43. The IO claimed that DNA comparison of the hair found stuck
in the hands of the deceased and the blood sample collected from
the accused was undertaken. In this background, there was no
reason not to get the same process conducted on the semen
stains as well. Hence, the recovery of semen in the vaginal swabs,
smear of the deceased and the underwear of the accused, which
has been treated to be an incriminating circumstance against the
accused also appears to be nothing but a sheer piece of
fabrication made by the IO in an endeavor to prove the case and
claim the glory thereof.
(27 of 31) [MREF-3/2021]
44. Lastly, the circumstance of matching foot-mould impressions
needs to be discussed. In this regard, the prosecution claimed that
one set of suspected foot-moulds/chance footprints were lifted
from the place of incident vide memorandum Ex.P/8. The IO Inder
Kumar (PW.12) thereafter, prepared the specimen foot-moulds of
the accused at the police station vide memorandum Ex.P/23.
However, Shri Inder Kumar admitted in his cross-examination that
he neither associated a magistrate nor were independent
witnesses joined when the specimen foot-mould impressions of
the accused were prepared vide memorandum Ex.P/23 wherein
only two police constables were associated as Panch witnesses.
This procedure as undertaken by the IO for collecting the
specimen foot-moulds impressions is totally contrary to the Rule
6.26 of the Rajasthan Police Rules, 1965 which reads as below:-
"6.26 Importance of footprints and track evidence. - (1)
Footprints are of the first importance in the investigation of crime.
For this reason all officers incharge of Police Stations shall instruct
their subordinates as well as all chaukidars that, when any crime
occurs all footprints and other marks existing on the scene of the
crime should be carefully preserved and a watch set to see that as
few persons as possible are permitted to visit the scene of the
crime. (2) When it is desired to produce evidence of the identity of
tracks found at the scene of or in connection with a crime, the
procedure for securing the record of such evidence shall be similar
to that prescribed in rule 7.31 for identification of suspects. The
attendance of a magistrate of the highest available status shall be
secured or, if that is impossible, independent witnesses of reliable
character shall be summoned. In the presence of the magistrate
of other witnesses, and in conformity with any reasonable
directions of reliable character shall be summoned. In the
presence of the magistrate or other witnesses, and in conformity
(28 of 31) [MREF-3/2021]
with any reasonable directions which they may give, ground shall
be prepared for the tests. On this grounds the suspect or
suspects, and not less than five other persons shall be required to
walk. The magistrate, or in his absence the police officer
conducting the tests shall record the names of all these persons
and the order in which they enter the test ground, While these
preparations are proceeding the tricker or other witness-who is to
be asked to identify the tracks shall be prevented from
approaching the place or seeing any of the persons be called up
and required to examine both the original tracks and those on the
test ground, and thereafter to make this statement. The
magistrate, or in his absence, the Police Officer conducting the
test shall record the statement of the witness as to the grounds of
his claim to identify the tracks, and shall put such other questions
as he may deem proper to test his bonafides. The officer
investigating the case and his assistant shall be allowed no share
in the conduct of the test. Tracks found which it is desired to test
by comparison as above, shall be protected immediately on
discovery, and their nature, measurements and peculiarities shall
be recorded at the time in the case diary of the investigating
officer.
The details of the preparation of the test ground and the actions
required of the suspect and those with whom his tracks are mixed
must vary according to the circumstances of the case. The officer
conducting the test in consultation with the magistrate or
independent witnesses, shall so arrange that the identifying
witness may be given a fair chance but under the strictest
safeguards of comparing with the original tracks, other tracks
made on similar ground and in similar conditions.
(3) The evidence of a tracker or other expert described in the
foregoing rule can be substantiated by the preparation of moulds
of other footprints of criminal or criminals found at the scene of
the crime. In making moulds for production as evidence the
following precautions should be observed-
(a) The footprints found on scene of the crime must be pointed
out to the reliable witnesses at the time and these same
(29 of 31) [MREF-3/2021]
witnesses must be present during the preparation of the
moulds.
(b) The latter must also be signed or marked by the witnesses
and the officer preparing them while still setting.
(c) After the procedure described in sub-rule (2) above has been
completed a mould should be prepared in the presence of
the magistrate or witnesses of one of the foot prints of the
suspect made in their presence. This mould should be signed
by the magistrate or witnesses when still setting.
(d) Both moulds should be carefully preserved for production in
court for identification by witnesses and comparison by the
Court."
45. Thus, the FSL report (Ex.P/68) of matching foot-mould
impressions is also inconsequential because the procedure
prescribed in the Police Rules was not followed by the IO at the
time of preparation of foot-moulds impressions. Furthermore, as
Banwarilal and his companions had already traipsed the crime
scene before arrival of police, there was no possibility of the
Investigating Officer being able to isolate and lift only two bare
foot impressions claiming that they were left behind by the
suspect. Hence, the FSL report (Ex.P/68) is inconsequential and
does not help the prosecution in its quest to prove the case
against the accused.
46. Law is well settled that the prosecution has to stand on its
own legs and the weakness of the defence can never be
considered to be a ground to record an adverse finding against the
accused in a case based totally on circumstantial evidence. The
prosecution must prove its case by leading unimpeachable
evidence which is consistent with the guilt of the accused and
inconsistent with his innocence, then only would the defence be
(30 of 31) [MREF-3/2021]
required to rebut the case of the prosecution. Reference in this
regard may be had to the Supreme Court judgment in the case of
Sharad Birdichand Sarda vs. State of Maharashtra, reported
in AIR 1984 SC 1622 wherein it was held as below:-
"1. The circumstances from which the conclusion of guilt is to be
drawn should be fully established. There is not only a
grammatical but a legal distinction between 'may be proved'
and "must be or should be proved". It is a primary principle
that the accused must be and not merely may be guilty
before a court can convict and the mental distance between
'may be' and 'must be' is long and divides vague conjectures
from sure conclusions.
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty.
3. The circumstances should be of a conclusive nature and
tendency.
4. They should exclude every possible hypothesis except the
one to be proved, and
5. There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused."
47. As a consequence of above discussion, we are of the firm
view that the prosecution has failed to prove the case as against
the accused by leading unimpeachable, acceptable circumstantial
evidence. Hence, the impugned judgment dated 29.11.2021
cannot be sustained and the same is quashed and set aside. The
accused appellant is acquitted of the charges. He is in jail and
(31 of 31) [MREF-3/2021]
shall be set at liberty forthwith, if not wanted in any other case.
The reference is answered in negative. The appeal is allowed as
above.
48. However, keeping in view the provisions of Section 437-A
Cr.P.C., accused appellant 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.
49. Record be returned to the trial court forthwith.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Sudhir Asopa/Devesh/-
Powered by TCPDF (www.tcpdf.org)
