Mahesh Paratha Son Of Khacher ... vs State Of Rajasthan
2023 Latest Caselaw 1347 Raj/2

[2023/RJJP/000418]

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

                D.B. Criminal Appeal No. 13/2021

Mahesh Paratha Son Of Khacher Singh, Resident Of Khati
Mohalla, Beenaganj, Police Station Chachoda, District Guna
(Madhya Pradesh) (At Present Confined In Open Jail,
Sanganer, Jaipur)
                                                              ----Appellant
                                    Versus
State Of Rajasthan, Through P.p.
                                                            ----Respondent

For Appellant(s)           :    Mr. Vivek Goyal with
                                Mr. Ajay Singh Yadhuvanshi
For Respondent(s)          :    Mr. Javed Choudhary, AGA



        HON'BLE MR. JUSTICE PANKAJ BHANDARI
        HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                Judgment



JUDGMENT RESERVED ON                     :              23/01/2023
DATE OF PRONOUNCEMENT :                                02/O2/2023




(PER HON. ANIL KUMAR UPMAN)

1. Challenge in this appeal is judgment and order dated

17.12.2008 passed by Additional Sessions Judge, Aklera,

District Jhalawar (hereinafter referred as trial court) in

Sessions case No.112/2008 arising out of FIR No.132/2008

registered at Police Station Manohar Thana, District Jhalawar

for the offences under Section 364, 376, 392 & 302 IPC.

Trial court recorded conviction of appellant for offence under

Section 302 IPC and sentenced to imprisonment for life along

[2023/RJJP/000418] (2 of 10) [CRLAD-13/2021]

with fine of Rs.60,000/- and in default of payment of fine, 6

months simple imprisonment was ordered further 6 months'

Simple Imprisonment was ordered. For the offence under

Section 364 IPC and sentence to R.I. 10 years and fine of

Rs.1,000/- and in default of payment of fine further 1

month's Simple Imprisonment was ordered. For the offence

under Section 201 IPC and sentence to 5 years R.I. and fine

of Rs.1,000/-. In default of payment of fine 1 month's

Simple Imprisonment was ordered. It was also ordered that

all the above sentence shall remain concurrently.

2. The criminal proceedings were set on motion on the

basis of written report (Exhibit-PW-1) submitted by Banwari

Lal Sain (PW-2) to Ravindra Singh (PW-9) who was then

posted as SHO, Police Station Manohar Thana, District

Jhalawar.

3. Written report Exhibit P-1 is being reproduced here as

under:-

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[2023/RJJP/000418] (3 of 10) [CRLAD-13/2021]

250 xzke fd ik;tsc igus gq,s Fkh vkSj [email protected]& udn FksA ftlds igqpus fd tkudkjh esjs lkys lhrkjke VksMh okys us fn fd esjh cfgu lqfe=k ckbZ ;gkWa ugh igqph gSA blfd tkap djokuk rks esa fnukad [email protected]@08 dks Hkouhe.Mh ls jokuk gksdj euksgjFkkuk vk;k ,oa esjh iRuh lqfe=k ckbZ ds ckjs esa Nku chu o ryk'k fd rks irk pyk fd esjh iRuh lqfe=k ckbZ egs'k ijkBk fuoklh pkpksMk ckys fd thi esa cSBdj tkuk ekywe iMk egs'k ijkBk us gh esjh iRuh dk vigj.k] cykRdkj o ywVikV djds esjh iRuh fd gR;k djds dgh taxy esa Nqik fn;k gSA fjiksVZ dk;Zokgh ,oa tkap gsrq Jheku~ fd lsok esa is'k gSA izkFkhZ

cuokjh yky lsu S/o lsu txUukFk th lsu fuoklh Hkokuhe.Mh P.S. Hkouhe.Mh

4. On the basis of this written report (Exhibit-P-1) formal

FIR No.132/2008 (Exhibit-P2) was registered at Police

Station Manohar Thana, District Jhalawar for the offences

under Section 364, 376, 392 & 302 IPC. After investigation,

police submitted charge sheet before the concerned

Magistrate. Case was committed to the Court of Sessions.

Learned Sessions Judge entrusted this case to the trial Court

for adjudication. Appellant was charged for the offences

under Sections 302, 364 & 201 IPC. Appellant denied the

charges and claimed trial. Prosecution examined 15

witnesses in support of the case and exhibited 28

documents. After completion of the prosecution evidence,

appellant was examined under Section 313 Cr.PC wherein he

stated that prosecution evidence is wrong and he is innocent

and has been falsely implicated. Out of 15 witnesses Rodulal

(PW-1), Banwari Lal Sain (PW-2), Dr. Satyanarayan Meena

(PW-6), Badri Prasad (PW-7) and Ravindra Singh (PW-9) are

[2023/RJJP/000418] (4 of 10) [CRLAD-13/2021]

material witnesses. Rest of the witnesses are formal

witnesses who have either proved the documents or

witnessed the seizure made during the course of the

investigation.

5. From bare perusal of the record, it appears that entire

prosecution case is based on circumstantial evidence. In

order to prove the circumstances, 2 witnesses namely

Rodulal (PW-1) and Badri Prasad (PW-7) introduced by the

prosecution as the witnesses of "last seen". Further to

complete the chain recovery of ornaments worn by the

deceased were shown to be recovered vide Exhibit-P-6 at the

instance of the appellant. At the instance of the appellant, 2

wooden sticks were also recovered vide Exhibit-P-16. One

"Petticoat" stained with blood was also found at the place of

the incident which was identified by the appellant as

"Petticoat" of the deceased.

6. Dr. Satyanaryan Meena (PW-6) being a member of

Medical Board conducted postmortem (Exhibit-P-8) and

found 2 wound on the person of the deceased. He opined

that exact time of the death cannot be ascertained and

probably she died 72 hours prior.

7. In order to assail the conviction, learned counsel for the

appellant submits that prosecution miserably failed to

connect the accused-appellant with the crime. Prosecution

further failed to establish any circumstances against the

appellant. He further submits that as Investigating Officer

failed to prepare any memo of recovery of the dead body, so

the prosecution failed to establish that the dead body was

[2023/RJJP/000418] (5 of 10) [CRLAD-13/2021]

recovered at the instance of the appellant. Without any

memo of the recovery of the dead body, on dated

19.08.2008 directly an inquest report was prepared by the

investigating officer, and the same is also silent about the

mode of recovery. He further submits that the last seen

witnesses are also not trustworthy and according to (PW7)

Badriprasad, (PW-1) Rodulal was not present there when he

saw the deceased Sumitra Devi in the jeep. The counsel for

the appellant further submits that alleged recoveries are also

doubtful because as per the recovery witnesses, all

recovered articles were shown to them on 20.08.2008 much

before the alleged date of recovery which is 27.08.2008 vide

Ex.P-6.

8. Learned state counsel supported the impugned

judgment and submitted that the appellant has rightly been

convicted. All circumstances are proved against the

appellant as he was lastly seen with the deceased and

ornaments belonging to the deceased have also been

recovered at the instance of the appellant. Apart from this,

two wooden sticks (murder weapon) have also been

recovered at the instance of the appellant and the same

were found stained with blood. The victim/Complainant was

also informed about hearing of this appeal, but the report is

received to the effect that the complainant is no more.

9. In order to appreciate the contentions advanced by the

counsel for the appellant and as well as the state counsel, we

perused the entire record and appreciated the evidence. It is

evident from the record that investigating officer PW9 did not

[2023/RJJP/000418] (6 of 10) [CRLAD-13/2021]

prepare any recovery memo with regard to the recovery of

dead body of the deceased Sumitra Bai. Except for the oral

statement of the investigating officer alleging that the dead

body was recovered at the instance of the appellant, no

document is available on record to show the fact that the

dead body was recovered at the instance of the appellant. In

absence of the recovery memo of the dead body, simply an

oral statement would not be sufficient to prove the fact that

the dead body was recovered at the instance of the

appellant. As per the statement of PW-9 the dead body was

recovered on the basis of information given by the accused.

No information memo is placed on record, the dead body was

sent for post mortem on 19.08.2008 and post mortem was

conducted on 20.08.2008 at 6.30 AM vide ExP-8. Accused-

appellant was arrested after the post mortem that is on

20.08.2008 at 3.00 PM vide Ex.P-10 thus the circumstance of

recovery of dead body at the instance of accused is not

established and it is apparent that the Investigating Officer

has given false evidence before the Court.

10. There is another infirmity in the prosecution case that

according to the investigating officer a bag, a wooden stick,

and blood-stained soil were found on the spot on 19.08.2008

while the same bag was shown to be recovered on

27.08.2008 vide Ex. P-6. This fact is also established as only

one bag was produced by the prosecution before the court

during the course of the trial and the same was marked as

an article, so it is not clear from the evidence whether the

bag produced during the course of the trial was recovered on

[2023/RJJP/000418] (7 of 10) [CRLAD-13/2021]

19.08.2008 or 27.08.2008. So far the wooden sticks are

concerned which were allegedly stained in blood and

recovered at the instance of the appellant, the prosecution

failed to produce any report from the forensic science

laboratory to prove the fact that wooden sticks were stained

in blood. Wooden sticks which have been shown to be

recovered at the instance of the appellant are usually kept in

common households.

11. From the testimony of the recovery witnesses namely

Rodulal (PW-1) and Badriprasad (PW-7), it reveals that all

the ornaments (belonging to the deceased) recovered vide

exhibit P-6 dated 27.08.2008 were already shown to them

on 20.08.2008. Moreover, no identification memo with

regard to the articles (ornaments) belonging to the deceased

was prepared by the investigating officer during the course

of the investigation. Another aspect of the case which

creates serious doubts about the prosecution case is that

according to the investigating officer (PW-9), the petticoat

vide Ex P-13, was recovered on 20.08.2008 from the place of

incident and same was identified by the appellant as of

deceased Sumitra Bai but the prosecution failed to explain

that while the body of the deceased was recovered on

19.08.2008 then why the petticoat which was lying right at

the place of incident was not recovered on the same day i.e.

19.08.2008.

12. From the testimony of PW-2 (husband of the deceased)

and PW-8 (brother of the deceased), it appears that to reach

the parental house, two or three modes of transport must be

[2023/RJJP/000418] (8 of 10) [CRLAD-13/2021]

used and hence it cannot be concluded that the deceased

was with the appellant throughout her journey to Todi,

District Guna M.P. as she must have alighted the jeep at

some point to change a vehicle. It is also important to note

that when she sat in the jeep in Bhawani Mandi, the

deceased and appellant were not alone and were rather with

several other people. PW2 further failed to explain how he

reached to the conclusion (as he has mentioned in the

written report) that his wife has been killed by the appellant

after committing rape and robbery with her.

13. The last seen evidence is also not reliable because the

arrest of the appellant was made on 20.08.2008 while PW7

Badriprasad was examined by the investigating officer under

Section 161 Cr.PC on 27.08.2008 which is after 7 days of his

arrest. Apart from this according to PW7, the deceased was

not alone with the appellant in the jeep rather four other

passengers were also in the jeep. According to PW7, he did

not see PW1 Rodulal when the deceased was going in the

jeep. It is also important to note here that Rodulal (PW1) is

a witness of the inquest report (Ex.P-3) and memo of

photographs (Ex.P-4), but at that time he did not mention a

single word, that he saw the deceased with the appellant. It

is also evident from the medical evidence that the time of

death cannot be ascertained and the "Last seen" doctrine has

limited application, where the time lag between the time the

deceased was seen last with the accused, and the time of the

murder, is narrow which is not in this case. In view of the

above last seen evidence cannot be believed and even the

[2023/RJJP/000418] (9 of 10) [CRLAD-13/2021]

court should not convict an accused only based on "last

seen" circumstance.

14. In case where prosecution rely upon the circumstantial

evidence then the prosecution is obliged to prove each

circumstance, beyond reasonable doubt, as well as the links

between all circumstances; such circumstances, taken

cumulatively, should form a chain so complete that there is

no escape from the conclusion that within all human

probability, the crime was committed by the accused and

none else; further, the facts so proved should unerringly

point towards the guilt of the accused. The circumstantial

evidence, in order to sustain conviction, must be complete

and incapable of explanation of any other hypothesis than

that of the guilt of the accused, and such evidence should

not only be consistent with the guilt of the accused but

should be inconsistent with his innocence - These panchsheel

precepts, so to say, are now fundamental rules, iterated time

and again, and require adherence not only for their

precedential weight, but as the only safe basis upon which

conviction in circumstantial evidence case can soundly rest.

We fortify our view from the law laid down by the Hon'ble

Apex court in the case Sharad Birdhi Chand Sarda Vs.

State of Maharashtra 1985 (1) SCR (88).

15. In criminal trials, it is well-settled law that the

prosecution has to bring home the charges levelled against

the accused beyond a reasonable doubt, which the

prosecution has failed to do in the instant case, resultantly,

[2023/RJJP/000418] (10 of 10) [CRLAD-13/2021]

this court is left with no alternative but to acquit the

accused-appellant, though charged in a very heinous crime.

16. For the above reasons, the conviction and the sentence

of the appellant-accused vide impugned judgment dated

17.12.2008 cannot be sustained. The appellant deserves to

be acquitted from all the charges. The impugned judgment

is hereby set aside; the appellant shall be released forthwith

unless required in any other case. The appeal is allowed.

17. The appellant is directed to furnish a personal bond of

rupees 50,000/- and a surety bond in the like amount in

accordance with Section 437-A of Cr.PC before the Deputy

registrar (Judicial) within three weeks from the date of

release to the effect that in the event of filing Special Leave

Petition against the judgment for grant of leave, the

appellant on receipt of notice thereof, shall appear before the

Hon'ble Apex Court. The bail bonds will remain in force for a

period of six months.

                                   (ANIL KUMAR UPMAN),J                                  (PANKAJ BHANDARI),J

                                   ANAND TANWAR /26









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