Rajasthan High Court
Suresh Son Of Shree Ram vs State Of Rajasthan on 7 September, 2022
Bench: Pankaj Bhandari, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal (Jail) Appeal No. 196/2021
Suresh Son Of Shree Ram, Resident of Nandna, Police Station,
Susner, Distt. Agar (M.P) (Accused in Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan Through P.P
----Respondent
For Appellant(s) : Mr. Manu Bhargava, Adv.
For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
RESERVED ON :: 27/08/2022
PRONOUNCED ON :: 07 /09/2022
1. The appellant has preferred this jail appeal aggrieved by the
judgment and sentence dated 25.08.2021 passed by the
Additional Sessions Judge, Bhawani, Mandi, District Jhalawar
whereby the appellant has been convicted for offence under
Section 302 IPC and has been sentenced to undergo life
imprisonment and a fine of Rs.10,000/- has been imposed upon
him. On non-payment of fine, to further undergo 6 months
rigorous imprisonment.
2. Succinctly stated the facts of the case are that on
12.04.2019 complainant - Gheesa Lal son of Ratan Lal filed an FIR
stating therein that he is a resident of Kadodiya. He has two sons,
Deepak and Bhola and three daughters. His son Deepak was
staying in the house in village and he was staying at the well with
his other children. On 11.04.2019 at about 7.30 in the morning,
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when his son - Bhola went to the house in Village, Deepak did not
woke up and when he called Rajesh Bai, Deepak had expired.
Thereafter, information was given to him and his wife Sanjan Bai.
From the appearance of the victim, it was seen that there were
some marks on his neck. The FIR was lodged against an
unidentified person.
3. The police after due investigation submitted charge-sheet
under Section 302 IPC against the present appellant. Charges
were framed and appellant denied the same and sought trial. As
many as 18 witnesses were examined on behalf of the prosecution
and 27 documents were exhibited. The appellant was examined
under Section 313 Cr.P.C. Learned trial Court after hearing the
arguments has convicted the appellant for offence under Section
302 IPC, aggrieved by which, the present jail appeal has been
filed before this Court.
4. It is contended by counsel for the appellant that the case
rests on circumstantial evidence and the chain is not connected.
The circumstances, which are stated to be against the appellant,
are; last seen evidence, recovery of a wire at the instance of the
accused appellant and dispute between the appellant and his wife
and the deceased being brother of his wife. It is also contended
that in the initial FIR and the statement recorded under Section
161 Cr.P.C., no doubt was raised against anyone. As far as last
seen evidence is concerned, it is contended that witnesses have
stated that they have seen the accused appellant in the village a
day before the incident. There is no evidence that the appellant
was last seen with the deceased. With regard to the recovery of
wire, it is contended that the wire was recovered from the house
of the deceased, the same place where his body was recovered
(3 of 6) [CRLAD-196/2021]
and as per evidence of the prosecution, the police had been to the
place of occurrence and thoroughly checked the premises.
Recovery of the wire at a belated stage from the accused has no
relevance.
5. It is contended that the motive for the offence is stated to be
a dispute between the appellant and his wife. It is argued that the
appellant's wife is sister of the deceased as per the evidence
adduced, which is in the nature of hearsay evidence. It is also
stated that the accused appellant used to beat his wife. It is
further argued that sister of the deceased has not been examined
before the Court below and therefore, the Court below was in
error in relying upon the hearsay evidence with regard to the
dispute between the appellant and his wife.
6. We have considered the contentions and have carefully
perused the record as well as the judgment of the trial Court.
7. As per the prosecution, the circumstances against the
accused appellant are:-
(a) that he was seen in the village a day prior to the date
of incident;
(b) that a wire was recovered at the instance of the
appellant and
(c) that he was ill-treating his wife, who happens to be
sister of the deceased.
8. We would discuss the above in sequence as under:
(a) The fact that the accused appellant was seen in the
village a day prior to the date of incident is concerned, Bhola (PW-
10), brother of the deceased, who is aged about 10 years, has
stated in his evidence that the appellant had come to his village a
day prior to the date of incident. This witness has not stated that
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he has seen the appellant with the deceased. Rajesh Bai (PW-11),
sister of the deceased, has stated in her examination-in-chief that
they were not having any doubt upon anyone, therefore, they did
not state the name of any person. In her cross-examination, she
has stated that the appellant had come to his house prior to the
date of incident. He had lunch in the morning at 9-10 a.m. and left
the house and thereafter, he had not seen him. She has further
stated that his brother died after Suresh had left.
Both the above witnesses have not seen the deceased with
the accused and hence, they cannot be termed as last seen
witnesses. As per Rajesh Bai (PW-11), the appellant had left the
village and thereafter, his brother expired. Jitendra Singh (PW-7),
SHO, in his cross-examination has admitted that the accused
appellant was staying 200 kms away from village Kadodiya in M.P.
Thus, this evidence cannot in any way connect the appellant with
the crime.
(b) As per the FIR, the fact of death of the deceased was
revealed on 12.04.2019. The accused was arrested on
16.04.2019. The information with regard to the electric wire was
recorded on 18.04.2019 (Exhibit-P-14) and the wire was
recovered on the same day vide Exhibit-P-15 - recovery memo of
electric wire. It is evident that the police went to the place of
occurrence on 12.04.2019 itself. The photographs of the place of
occurrence were taken on 12.04.2019 vide Exhibit-P-5. The site
plan of the place of occurrence with its description was also
prepared on the same day vide Exhibit-P-6. Mukesh Kumar (PW-
14), who has recovered the wire vide Exhibit-P-15 has admitted
that wire was recovered from Village Kadodiya and the recovery
memo does not have any independent witness. He has also
(5 of 6) [CRLAD-196/2021]
admitted that they have visited the site prior to the recovery.
Similar is the statement of Surendra Singh (PW-15), Constable,
who has stated that no independent witness was summoned at
the time of recovery of the wire and that they had visited the
place of occurrence prior to the recovery also. As per Dr.
Balmukund Verma (PW-6), the neck of the deceased had two
marks of rope and both the marks were of the size with 3/4 cm.
This witness has also stated that there were no other injuries
except marks on the neck. Recovery of the wire from the place of
occurrence, which was thoroughly checked by the police after six
days of the incident and not summoning any independent witness
for effecting the recovery creates doubt on the recovery. Further,
there is no evidence that the wire was used for commission of
offence since the doctor has given evidence that there were two
marks on the neck of the size with 3/4 cm and were of a rope.
Recovery effected from the place of occurrence where the
police had already searched, cannot thus be used against the
accused appellant.
(c) The motive of the crime is stated to be a dispute between
the appellant and his wife. The witnesses, who have stated about
the dispute being there between the husband and the wife are all
hearsay witnesses and the main witness who could have deposed
in this regard was wife of the deceased. Rajesh Bai (PW-11), who
is sister of wife of the appellant, has stated that she had not seen
the appellant beating her sister and it is only hearsay evidence.
The fact that the appellant ill-treated his wife could be provided by
the evidence of the appellant's wife, who has not been produced
before the trial Court. The fact of there being a dispute is thus not
established and even considering that the appellant was not in
(6 of 6) [CRLAD-196/2021]
good terms with his wife, would not lead to the inference that the
appellant murdered his brother-in-law.
9. We are, thus, of the view that the chain is not connected and
no case is made out against the accused appellant. The trial Court
has clearly erred in coming to the conclusion that the appellant
has committed the offence because he was last seen in the village.
The judgment and sentence dated 25.08.2021 passed by the trial
Court thus deserves to be and is accordingly set aside. The appeal
is thus allowed. The appellant is acquitted of the charges levelled
against him. He is in jail, he be set at liberty forthwith, if not
required in any other case or for any other purpose.
10. Appellant is directed to furnish personal bond in the sum of
Rs.50,000/- and a surety bond in the like amount in accordance
with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial)
within two weeks from the date of release to the effect that in the
event of filing of Special Leave Petition against this judgment or
on grant of leave, the appellant on receipt of notice thereof, shall
appear before the Hon'ble Apex Court. The bail bond will be
effective for a period of six months.
11. In view of the disposal of the main appeal, D.B. Criminal
Misc. Suspension of Sentence Application No.714/2022 also stands
disposed of.
(SAMEER JAIN),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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