Sheoji @ Shivji Lal And Anr vs State Of Rajasthan Through P P ...
2023 Latest Caselaw 4098 Raj/2

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 98/2018

Meghraj, S/o Shri Shivdayal, aged about 33 years, R/o Village
Devpura, Tehsil Niwai, District Tonk, Raj. (Presently confined in
Central Jail, Ajmer)
                                                             ----Accused-Appellant
                                       Versus
State Of Rajasthan
                                                                    ----Respondent

Connected With D.B. Criminal Appeal (Db) No. 99/2018

1. Sheoji @ Shivji Lal S/o Bhanwar Lal, R/o Bassi, Police Station Baroni, District Tonk, Raj. Accused Is Confined Central Jail, Ajmer.

2. Mukesh S/o Jagdish, R/o Jhilai, Police Newai, District Tonk, Raj. Accused Is Confined In Central Jail, Ajmer.

----Appellants Versus State Of Rajasthan Through PP.

----Respondent D.B. Criminal Appeal (Sb) No. 239/2018 Surgyan S/o Ramniwas, R/o Near Kali Ka Bag, Newai, Tehsil Newai, Distt. Tonk Raj.. Accused/ Appellant In Confined To District Jail, Tonk

----Appellant Versus State Of Rajasthan Through PP.

----Respondent D.B. Criminal Appeal (Db) No. 186/2022 State Of Rajasthan, Through P.P.

----Appellant Versus

1. Sheoji @ Shivjilal S/o Bhanwarlal, R/o Bassi Police Station Baroni, Distt. Tonk.

2. Jagdish S/o Harnath, R/o Bassi, Police Station Baroni, Distt.

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Tonk.

3. Surgyan S/o Ramniwas, R/o Near Kali Ka Bag, Niwai, Distt.

Tonk (Raj.)

4. Rameshwar S/o Maganlal, R/o Notara Maliyan, Police Station Sultanpur, Distt. Kota (Raj.)

5. Suresh S/o Mohanlal, R/o Notara Maliyan, Police Station Sultanpur, Distt. Kota (Raj.)

6. Bhagwan Sahay S/o Kanaram, R/o Yarlipura, Police Station Shivdaspura, Distt. Jaipur (Raj.)

7. Meghraj S/o Shivdayan, R/o Devpura Tehsil Niwai, Distt.

Tonk (Raj.)

8. Ramdev S/o Harpal, R/o Bassi, Police Station Baroni, Distt.

Tonk (Raj.)

9. Ramjilal S/o Kaluram, R/o Bhanwarsasgar, Police Station Baroni, Distt. Tonk (Raj.)

10. Mukesh S/o Jagdish, R/o Ghilai, Police Station Niwai, Distt.

Tonk.

----Respondents

For Accused/appellant : Mr. R.B. Sharma Ganthola, Adv. in Criminal Appeal No. 98/2018 Mr. Sandeep Jain, Adv. in Criminal Appeal No. 99/2018 & 239/2018 For State : Mr. Javed Choudhary, Addl. GA

For Accused/respondent : Mr. Sandeep Jain, Adv.

Mr. Neeraj K Tiwari, Adv.

Mr. R.B. Sharma Ganthola, Mr. Shyam Bihari Gautam in Criminal Appeal No. 186/2022

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

Reserved on 17/08/2023 Pronounced on 24/08/2023 (Per Mr. Pankaj Bhandari, J)

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1. Accused/appellant- Meghraj has filed Criminal Appeal

No.98/2018, appellant- Sheoji @ Sheoji Lal and Mukesh have filed

Criminal Appeal No.99/2018, appellant- Surgyan has filed

Criminal Appeal No.239/2018 against the judgment of conviction

and order of sentence dated 23.01.2018 passed by Addl. Sessions

Judge, Tonk in Sessions Case No.12/2012, whereby appellant-

Meghraj has been acquitted for the offence under Section 323,

120-B, 201 of IPC; appellant- Sheoji and Mukesh have been

acquitted for the offence under Section 323, 120-B of IPC and

appellant- Surgyan has been acquitted for offence under Section

323, 302 r/w 120-B, 201, 120-B of IPC. Accused-appellants have

been convicted and sentenced for the offences as mentioned

herein under:-

Accused/appellant- Meghraj:-

(i) Section 364 IPC- 7 years simple imprisonment and a fine of

Rs.5,000/-, in default of payment of fine, to further undergo two

months simple imprisonment.

(ii) Section 302 IPC- Life imprisonment and a fine of Rs.10,000/-,

in default of payment of fine, to further undergo three months

simple imprisonment.

Accused/appellant- Sheoji and Mukesh:-

(i) Section 364 IPC- 7 years simple imprisonment and a fine of

Rs.5,000/-, in default of payment of fine, to further undergo two

months simple imprisonment.

(ii) Section 302 IPC- Life imprisonment and a fine of Rs.10,000/-,

in default of payment of fine, to further undergo three months

simple imprisonment.

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(iii) Section 201 IPC- 3 years simple imprisonment and a fine of

Rs.3,000/-, in default of payment of fine, to further undergo one

month simple imprisonment.

Accused/appellant- Surgyan:-

(i) Section 364 IPC- 7 years simple imprisonment and a fine of

Rs.5,000/-, in default of payment of fine, to further undergo two

months simple imprisonment.

All the sentences were directed to run concurrently.

2. State has also preferred Criminal Appeal No.186/2022

against the judgment of conviction and order of sentence dated

23.01.2018, whereby accused/respondents- Sheoji, Jagdish,

Surgyan, Rameshwar, Suresh, Bhagwansahay, Meghraj, Ramdev,

Ramjilal and Mukesh have been acquitted by the Court below.

3. Succinctly stated the facts of the case are that

complainant- Ramkalyan (PW-2), who was the Khalasi of truck

driven by the deceased- Jagdish Gurjar, filed a written report

(Ex.P.1) on 19.08.2011 at Barauni Police Station with regard to

abduction of Jagdish Gurjar from Bharthal Dhaba at Nivai Bypass.

On the basis of the said report, police registered FIR No.206/2011

(Ex. P.2) for the offences under Sections 365, 323 and 342 of IPC.

Police after due investigating, filed charge-sheet against eleven

accused for offence under Sections 364, 365, 323, 302, 201 and

120-B of IPC. In investigation, police arrived at the conclusion that

the deceased was abducted from Bharthal crossing. He was taken

to Khedi village, where he was beaten to death and then to cover

up the incident, his body was chopped and body parts were

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thrown in Chambal river. Some body parts were found by the

villagers in banks of Chambal river at Roteda pulia on 22.08.2011.

4. The case was committed to the Court of Addl. Sessions

Judge. Charges were framed against the accused-appellants and

other co-accused for offences under Sections 364/ 120-B, 302,

302/120-B, 201, 323, 120-B, 365 IPC. Appellants and other co-

accused denied the charges and sought trial. As many as 46

witnesses were examined and 154 documents were exhibited on

behalf of the prosecution. Explanation of the accused were

recorded under Section 313 Cr.P.C. In defence, 11 witnesses were

produced and 35 documents were exhibited. Trial Court after

hearing the arguments has convicted the accused-appellants as

herein above mentioned and has acquitted the other co-accused.

Aggrieved by which accused-appellants have filed Criminal Appeal

Nos.98/2018, 99/2018 and 239/2018 and State has also filed

Criminal Appeal No.186/2022 aggrieved by the order of acquittal

of appellants and other co-accused.

5. It is contended by counsel for the accused-appellants

that the fact that one who expired was Jagdish Gurjar, is not

established. Prosecution has failed to establish that the body parts

recovered from banks of Chambal river near Roteda pulia were

that of Jagdish. It is also contended that the blood samples of

mother of the deceased is said to have been taken, but, neither

there is any recovery memo of the blood sample, nor mother of

the deceased and doctor who took blood sample were examined.

It is also contended that the FSL report mentions about matching

of the teeth of the deceased with that of the blood sample of

mother of the deceased, whereas, there is no recovery memo of

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teeth of the deceased. Further, there is no record that the blood

sample of mother as well as teeth of the deceased was kept in the

Malkhana.

6. It is also contended that in the FIR, name of only

Sheojiram was mentioned and complainant- Ramkalyan (PW-2) in

his evidence has stated that he was knowing the name of other

accused at the time of lodging of FIR. It is argued that no reason

or justification has been given for not mentioning the name of

other persons who have abducted the deceased. It is contended

that an iron rod was recovered at the instance of Meghraj vide

Ex.P-54 and one bamboo stick is said to have been recovered at

the instance of Mukesh vide Ex.P-42. There is no recovery at the

instance of Sheoji and Surgyan. It is contended that the recovery

also does not link the accused with the alleged offence as there

were no marks of blood stains on the recovered articles and the

recovered articles were not sent for FSL. It is contended that there

is no independent witness to the incident. All the witnesses are

related witnesses. Recovery witnesses are also planted. It is also

contended that the material witnesses have turned hostile and the

only evidence is of the related witnesses.

7. It is also contended that as per the prosecution story,

the incident took place at three places. The first place is Bharthal

Choraha from where Jagdish was allegedly kidnapped, the second

place is at a distance of 150-200 meters and the third place is 250

kms. away from where allegedly the deceased was chopped and

the body parts were found. It is contended that the prosecution

has produced witnesses PW-2 (Ramkalyan), PW-7 (Ramesh Chand

Gurjar) and PW-15 (Madholal) for the place from where Jagdish

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was kidnapped i.e. Bharthal Choraha. Prosecution has produced

Dev Narayan (PW-6) and Badri Narayan (PW-23) who are

allegedly witnesses for the second site where Jagdish was beaten.

With regard to the place, where the body parts were found,

prosecution has produced PW-3 (Ramvilas) and PW-34 (Pappu).

8. It is contended that none of these witnesses are

reliable and the trial Court has erred in believing the statement of

these witnesses who are related to the deceased. It is contended

that the statement of PW-2 (Ramkalyan) is not supported by the

statement of PW-15 (Madholal). As per PW-2, they stopped at

Bharthal Choraha at the kiosk of Madholal, where the incident took

place, however, Madholal has denied about the same. It is

contended that the evidence of PW-7 (Ramesh Chand) who is also

stated to be at Bharthal Choraha is not reliable as this witness has

admitted that he did not disclosed about this incident to anyone

and narrated for the first time to the police after three days. He

has also stated that he was having a mobile, still he did not inform

the police which also makes this witness unreliable.

9. Learned Addl. Government Advocate appearing for the

State has opposed the appeals filed by the accused-appellants. It

is contended that it is established that the deceased was

murdered and his body parts were thrown in the Chambal river

from the banks of which, the body parts were recovered. It is also

contended that blood sample of mother of the deceased was

obtained and as per the DNA report, the same was matching with

the DNA obtained from the teeth of the deceased. It is also

contended that there are witnesses who have seen the accused

abducting the deceased and their evidence is reliable and the

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Court below has not erred in convicting the accused-appellants. It

is also contended that learned trial Court has erred in acquitting

the co-accused.

10. Learned Addl. GA has placed reliance on State of West

Bengal vs. Mir Mohd. Omar & Ors (2000)8 SCC 382 and

Wazir Khan vs. State of Uttarakhand, Criminal Appeal

No.1922-23/2017, decided by the Apex Court on 02.08.2023.

11. We have considered the contentions and have perused

the record.

12. For disposal of the appeals and for arriving at the

conclusion that the offence of murder has been committed, it is

necessary to establish that the body parts which were recovered,

were that of Jagdish. For establishing the same, on behalf of

prosecution, DNA report (Ex.P-117) has been produced. As per

result of the examination, Male DNA profile of source of exhibit

No.1 (Tooth sample- Packet marked X) and DNA profile of exhibit

No.2 (blood sample of Smt. Panchi Devi- Packet Marked 1) is

matching at all the alleles which are amplified as shown in table

No.1. The Forensic expert has concluded that the DNA test

performed on the exhibits provided is sufficient to conclude that

the source of exhibit No.1 (Tooth sample- Packet marked X) is the

biological son of Smt. Panchi Devi.

13. The contention of counsel for the accused is that there

is no recovery memo of the blood sample of Smt. Panchi Devi and

that she and doctor who took blood sample of Smt. Panchi Devi

were not examined before the trial Court. The only evidence with

regard to taking of blood sample of Smt. Panchi Devi is of the

Investigating Officer who has stated that he had obtained the

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blood sample of Panchi Devi and had refrigerated the same.

Admittedly, there is no recovery memo of the blood sample of

Panchi Devi. As per the Malkhana Register also, blood sample was

not deposited in the Malkhana. If the version of investigating

officer is to be believed, the sample was refrigerated, but as to

whether the same was kept in a sealed condition, is not

established from the evidence. It is evident that vide Exhibit P-58,

partially burnt bones and burnt bones of the deceased were

recovered and were kept in Packet Marked- X. The said seizure

memo is stated to be made on 02.09.2011 at 06:55 pm. However,

in the DNA report, extracts from teeth of the deceased is said to

have been taken, whereas, in the seizure memo (Ex.P-58), there

is no mention about the seizure of teeth. Thus, it is not

established beyond reasonable doubt that the body parts which

were recovered were of Jagdish.

14. The next question which arises for consideration is

whether the remnants of bones which were recovered is actually

the same, that were disposed of by the police authorities. In this

regard, PW-27 (Dinesh), PW-29 (Lokesh) and PW-30 (Kan Singh)

are relevant witnesses, who have deposed that the place from

where the remnants of bones were recovered, the dead bodies of

nearby villagers are also cremated. PW-27 has also admitted that

except villagers of Roteda village, other nearby villagers also

perform their last rituals at the same place from where the bones

were recovered. A panchnama was prepared by the police vide

Ex.P-71. As per the panchnama, the body parts were burnt near

the river bank. PW-24 (Peeru Shah)- a panchnama witness has

stated that the panchanama was prepared on 22.08.2011. He has

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admitted that the age of the deceased was assessed between 25-

30 years and he was also of the view that death took place a week

ago. Similar is the evidence of PW-30 (Kan Singh), who has also

deposed that the doctor who conducted the postmortem was of

the view that the body parts were 7-8 days old and that the age of

the deceased was between 25-30 years. This witness has also

stated that the body parts which were recovered were burnt on

the earth mound. He has also stated that funeral of other villagers

is also done at same place. PW-29 (Lokesh) who is also a witness

to the panchnama has stated that the panchnama was prepared

on 22.08.2011 at 10:00 am. The age of the deceased was

between 25-30 years and the remnants were seven days old. He

has also stated that the body parts were completely decomposed.

15. PW-31 (Dr. Rajesh Kumar Meena) who conducted the

postmortem has stated that all the body parts were decomposed

and so, no DNA sample could be drawn. If we co-relate the date

of abduction with the date of recovery of the remnants, it is

evident that as per PW-2 (Ramkalyan), the incident of abduction

took place on 19.08.2011 at 3:00-04:00 pm and the postmortem

was conducted & panchnama was prepared on 22.08.2011 at

10:00 am. The place from where the deceased is said to have

been abducted is at a distance of more than 250 kms. from the

place where the body parts were recovered, meaning thereby that

the body parts which were recovered and were said to be seven

days old, were not that of Jagdish.

16. The Apex Court in Prakash Nishad Vs. State of

Maharasthra MANU/SC/0613/2023 observed as under:-

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"62. The document also lays emphasis on the chain of custody being maintained. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document "which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim's or suspect's name and the brief description of the item."

17. As far as matching of the DNA extracted from the teeth of

the deceased with that of the blood sample of Panchi Devi- mother

of the deceased is concerned, suffice to say that as per the seizure

memo (Ex.P-58), no teeth is said to have been recovered. There is

no seizure memo of the blood sample of Panchi Devi, neither

Panchi Devi has been examined to establish that her blood sample

was taken, nor the doctor who took the sample has been

examined. There is no entry of deposition of blood sample of

Panchi Devi in the Malkhana register and surprisingly, as per the

investigating officer, the same was kept in a refrigerator. As to

who took the blood sample of Panchi Devi to whom the blood

sample was given is also not evident from perusal of the entire

material on record. To establish a link between the DNA obtained

from the teeth which was sent for DNA analysis and the blood

sample of mother of the deceased, it was necessary for the

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prosecution to establish that the blood sample was taken, it was

kept in the Malkhana and was sent to FSL. Since there is no

seizure memo of the blood sample of Panchi Devi and no entry in

the malkhana register and there is no evidence of Panchi Devi and

the doctor who took the blood sample, it is not established that

the blood sample of Panchi Devi was drawn and sent to FSL.

18. In view of the above, prosecution has failed to establish

that the body parts recovered were that of Jagdish, the blood

sample which was sent for analysis was that of Panchi Devi and

thus, the DNA report should not have been relied upon by the

learned trial Court for convicting the accused for offence under

Section 302 IPC.

19. As far as offence of abduction is concerned, as per the

prosecution, there are three witnesses- PW-2, PW-7 and PW-15

who have seen Jagdish being abducted. PW-2 (Ramkalyan) has

stated that they stopped at the kiosk of Madholal for having tea

and at that time, Sheoji and other co-accused abducted Jagdish.

PW-15 (Madholal) is the kiosk owner who has turned hostile and

has clearly stated that no incident of abduction took place in his

presence. PW-2 (Ramkalyan) who was the Khalasi is not a reliable

witness for the very reason that in his examination-in-chief, he

has stated that he was also beaten by Sheoji, Meghraj, Mukesh,

Surgyan, Ramjilal and Damodar, however, no medical examination

was conducted to establish the same. As per this witness, the

incident took place between 03:00-04:00 pm at Bharthal Choraha.

He has also stated that he was having a mobile, but surprisingly

he did not inform the police about the incident, more particularly

when the abductee was the owner of the truck in which he was a

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Khalasi (helper). He has admitted that Ramesh Chand Gurjar (PW-

7) had told him the names of co-accused- Sheoji, Meghraj and

Mukesh as the person who abducted Jagdish, however, in the FIR

lodged by PW-2 (Ramkalyan) at 06:48 pm, he has only named

Sheojiram and has specifically stated that he was not knowing the

other persons who were in the Jeep. However, this witness, when

he was examined in the Court, has named all the other co-

accused. The other witness who has witnessed the incident of

abduction is PW-7 (Ramesh Chand Gurjar). The conduct of this

witness is also unnatural as he has stated that he was having a

mobile, but he also did not inform the police about abduction. He

has also stated that after the incident, he went to his house and

slept and that he did not narrate this incident to anyone for three

days and narrate the same for the first time to the police after

three days.

20. PW-25 (Raja) who was the head constable and

Malkhana incharge has admitted in his cross-examination that he

has not signed the Malkhana register (Ex.P-72) for the Malkhana

which was deposited on 31.08.2011 and 02.09.2011. He has also

admitted that the signature of SHO who deposited the articles is

also not available at Ex.P.72. He has also admitted that as to who

took the articles to the FSL is also not mentioned in the Malkhana

register. He has also admitted that page No.1-3 of Malkhana

register do not bear his signatures. It is not established that as to

under whose authority the bones of the deceased were deposited

in the Malkhana and as to who took them to the FSL is also not

mentioned in the Malkhana register. Thus, the prosecution has

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failed to establish that the burnt bones which were seized were

the same which were deposited in the Malkhana.

21. As per the prosecution version, after the deceased was

abducted from Bharthal Choraha, at a distance of 200 meters from

that place, he was seen by PW-6 (Dev Narain) and PW-23 (Badri

Narayan). PW-6 (Dev Narain) has stated that Jeep- RJ 25 C 1357

came from Bharthal Choraha towards Niwai. The jeep stopped at

some distance. Two persons alighted from the jeep, who were

using abusive languages. They informed this witness that they

have abducted Jagdish driver, as he had abducted the daughter of

Sheojiram. In the examination in chief, this witness has deposed

that the person who alighted from the jeep was Surgyan and

Damodar. However, in cross-examination this witness has stated

that he cannot recognise Damodar and Surgyan. He has also

stated that he has not seen the persons who were sitting in the

jeep. He has clearly stated that he and Badri Narayan both did not

go near the jeep.

22. PW-23 (Badri Narayan) has deposed before the Court

that there was break-down of their truck at 03:00-04:00 pm. A

commander jeep came from Tonk and it stopped ahead of their

truck. There was some commotion in the jeep. He has also stated

that two persons alighted from the jeep and returned towards

Tonk and then deposed, towards Bharthal choraha and when they

were crossing the place where the truck was parked, they

informed the witness that they have abducted Jagdish Gurjar. In

cross-examination, this witness has stated that deceased- Jagdish

was related to him. He has also admitted that after receiving the

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information from Damodar and Surgyan, he did not make any

efforts to catch them or report the matter to the police.

23. PW-6 (Dev Narain) & PW-23 (Badri Narayan) have

deposed that they saw a jeep coming from Bharthal choraha

towards Niwai and that the jeep stopped near the place where

their truck was parked, however, they have not stated that they

have seen the persons who were sitting in the jeep. PW-6 (Dev

Narain) has stated in his cross-examination that he cannot

recognise Damodar and Surgyan. He was having a mobile and

even after having the knowledge that Jagdish has been abducted

by many persons, he did not intimate the police. PW-23 (Badri

Narayan) who was related to the deceased also did not intimate

the police. Thus, both these witnesses are chance witnesses and

are not reliable. It is also pertinent to note that the fact that

Surgyan & Damodar informed Badri Narayan (PW-23) that they

have abducted Jagdish was not mentioned in the police statement

of Badri Narayan Ex.D-9. Badri Narayan has stated that he has

informed the police, but as to why police has not mentioned this

fact in his statement recorded under Section 161 Cr.P.C., he does

not know.

24. The next place as per the prosecution story is at a

distance of 250 kms. from Bharthal Choraha, known as Khedi

village. As per PW-3 (Ramvilas), a jeep was standing near the

road side, one person was sitting in the jeep and five persons

were beating one person. All the persons put that person in the

jeep and went towards Khedi village. This witness has stated that

he alongwith Pappu went to the police after 15-16 days of the

incident. In cross-examination, this witness has admitted that

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daughter of his brothers has been married in the family of

deceased- Jagdish. He has also stated that he had not narrated

this incident to anyone before giving statement to the police. As

per this witness, Pappu was with him on the motorcycle. Pappu

(PW-34) has identified only Ramdev as one of the person who was

assaulting the deceased. This witness was declared hostile by the

prosecution. It is pertinent to note that Ramdev whom this

witness has identified in the Court, has been acquitted by the trial

Court. Both these witnesses are chance witness. Statement of

Ramdev before the police was recorded on 05.09.2011 i.e. after a

lapse of 16 days of the date of the alleged abduction. This is

highly improbable that after abduction and after travelling at a

distance of 250 kms., the deceased was again beaten near Khedi

village.

25. As per the prosecution version, Ex.P-51 is the site plan

of place of incident of Chambal river, wherein at Mark- XX, it is

mentioned that the body was cut into pieces; at Mark- XXX,

clothes of the deceased was burnt; at Mark- X place, parts of the

body were thrown into Chambal river, XXXX was the place where

jeep was parked. It is to be noted that no remnants of the clothes

were recovered from place marked- XXX, no blood or body pieces

were recovered from place marked- XX and there were no signs of

deceased being amputed at place marked- XX and X. The

prosecution has thus, hypothetically created a fiction account of

the entire incident. It is also important to note that as per the

prosecution, the entire incident took place on 19.08.2011. The

body was recovered on 22.08.2011 from near Roteda pulia. As per

the panchnama, the body was more than seven days old.

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26. Admittedly, there are no witnesses who have seen the

jeep parked or have seen the deceased being cut into pieces and

his clothes being disposed. Nothing has been recovered from the

place to establish that the offence was committed at the place

pointed out by the police in Ex.P-51. Site plan (Ex.P-51) was

prepared by the police on 19.12.2013 at the behest of the

statement given by the accused under Section 27 of Evidence Act.

Since there is no discovery of fact in Ex.P-51, the same cannot be

read against the accused. The other information on the basis of

which Ex.P-49 was prepared on 19.12.2013 i.e. after a lapse of

more than two years cannot be read in evidence against the

accused for the very reason that there is no discovery of fact in

pursuance to the information given under Section 27 of Evidence

Act. The learned Trial Court has convicted the accused solely on

the basis of matching of the DNA and the learned Addl.

Government Advocate has also supported the judgment on the

ground that DNA report is a scientific report and conviction can be

based solely on the basis of the DNA report.

27. We are unable to accept the arguments advanced by

learned Addl. Government Advocate for the very reason that DNA

report itself is under a cloud of doubt, as the place from where the

bones were recovered was the place which was a common funeral

ground. Only bones were recovered, whereas, what was sent for

DNA analysis, was teeth of the deceased. They were proposed to

be matched with the blood sample of Panchi Devi, however, there

is no recovery memo of the blood sample of Panchi Devi, no

doctor has been produced to establish that he had drawn the

blood sample of Panchi Devi, the blood sample was not deposited

[2023:RJ-JP:18908-DB] (18 of 19) [CRLAD-98/2018]

in the Malkhana, even Panchi Devi was not produced before the

Court to establish that her blood samples were taken by the

doctor.

28. Thus, in light of the judgment of Prakash Nishad vs.

State of Maharashtra (supra), the DNA report could not have been

made sole basis for convicting the accused. The chain of collection

of the sample is thus not established in this case. Therefore, the

DNA report in this case, cannot be read against the accused-

appellants coupled with the fact that Panchi Devi and the doctor

who took the sample have not been examined before the Court.

With what we have deliberated above, it is evident that it is not

established that Jagdish was abducted and murdered by the

accused-appellants. Hence, Criminal Appeal Nos.98/2018,

99/2018 and 239/2018 filed by the accused-appellants deserves

to be and are accordingly, allowed. Judgment of conviction and

order of sentence dated 23.01.2018 qua accused-appellants is

quashed and set aside. Appellants are acquitted of all the charges

levelled against them. The accused-appellants- Meghraj, Sheoji

and Mukesh are in jail, they shall be released forthwith, if not

required in any other case. The accused- Surgyan is on bail, his

bail bonds stand cancelled.

29. As far as Criminal Appeal No.186/2022 filed by the

State is concerned, since prosecution has not been able to

establish that Jagdish was abducted and murdered by the present

appellants, State has also failed to establish that the body parts

which were recovered belonged to Jagdish, thus acquittal of other

co-accused by learned Trial Court does not call for any

[2023:RJ-JP:18908-DB] (19 of 19) [CRLAD-98/2018]

interference and the appeal filed by the State deserves to be and

is accordingly, dismissed.

30. Accused/appellants- Meghraj, Sheoji, Mukesh and

Surgyan are 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 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.

31. Record of the learned trial Court be sent back forthwith.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   CHANDAN /









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