Smt Nirmala @ Dhara vs State Of Rajasthan Through P P
2023 Latest Caselaw 1013 Raj/2

[2023/RJJP/000263]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     D.B. Criminal Appeal No. 1532/2017
Ramphool @ Phool Ram @ Foolya S/o Bhura Ram Gurjar, R/o
Ratanpura, Police Station Phagi, District Jaipur.
(At Present Lodged In The Central Jail, Jaipur).


                                                             ---Accused-Appellant
                                       Versus




State Of Rajasthan Through Public Prosecutor.
                                                                    ----Respondent
                                 Connected With
                     D.B. Criminal Appeal No. 1267/2017
Smt. Nirmala @ Dhara W/o Shri Udda @ Udai Singh, R/o Village
Dhuvaliya Gurjaran, P.S. Phagi, Distt. Jaipur.
(Accused is confined in Central Jail, Jaipur)


                                                             ---Accused-Appellant
                                       Versus


State Of Rajasthan Through Public Prosecutor.
                                                                    ----Respondent


For Appellant(s)             :     Mr. Vijay Choudhary with
                                   Mr. Ram Singh Gurjar
                                   Mr. C.C. Ratnu with
                                   Mr. Ashish Gausingha
For State                    :     Mr. Javed Choudhary, Addl. G.A.
For Complainant(s)           :     Mr. Vijay Singh Shekhawat


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

Judgment reserved on                                 ::             23.01.2023

Judgment pronounced on                                ::             31.01.2023




                        (Downloaded on 02/02/2023 at 11:44:29 PM)
 [2023/RJJP/000263]                  (2 of 13)                       [CRLA-1532/2017]


By the Court: (PER HON'BLE PANKAJ BHANDARI,J.)

1. Accused/appellants-Ramphool @ Phool Ram @ Foolya and

Nirmala @ Dhara, have preferred these Criminal Appeals

aggrieved by the judgment and sentence dated 18.05.2017

passed by learned Additional District & Sessions Judge, Sambhar

Lake, District Jaipur, in Sessions Case No.41/2013 (27/2013),

whereby, the accused-appellant-Ramphool @ Phool Ram @ Foolya,

has been convicted for offences under Sections 302, 201 & 120-B

of Indian Penal Code (for short 'I.P.C.'). For offence under Section

302 I.P.C., he has been sentenced to undergo imprisonment for

life and to pay fine of Rs.15,000/-, in default of payment of fine to

further undergo Rigorous Imprisonment for 4 months; for offence

under Section 201 I.P.C., he has been sentenced to undergo

Rigorous Imprisonment for 3 years and to pay fine of Rs.5,000/-,

in default of payment of fine to further undergo Rigorous

Imprisonment for 2 months and for offence under Section 120-B

I.P.C., sentenced to undergo imprisonment for life and to pay fine

of Rs.15,000/-, in default of payment of fine to further undergo

Rigorous Imprisonment for 4 months. Accused/appellant-Nirmala

@ Dhara has been convicted for offence under Section 120-B

I.P.C. and has been sentenced to Life Imprisonment and fine of

Rs.15,000/-, in default of payment of fine to further undergo 4

months Rigorous Imprisonment. All substantive sentences to run

concurrently.

2. Succinctly stated the facts of the case are that Ramji Lal

(PW-3) filed a complaint on 04.02.2013 (Ex.P-7), which was a

written report to the Station House Officer, Police Station Phagi,

District Jaipur Rural, alleging that on 03.02.2013 at about 02:00

[2023/RJJP/000263] (3 of 13) [CRLA-1532/2017]

p.m, his nephew Udda @ Udai Singh, left the house after telling

that he is going to Devnarayan Maharaj, Village Jodhpuriya, Tehsil

Newai, District Tonk. It is mentioned in the First Information

Report that at around 6-7 pm, when they tried to contact Udda @

Udai Singh on Mobile No.9680485453, it was found to be out of

coverage area. It is also mentioned in the F.I.R. that on

04.02.2013 at around 02:00 pm, the police informed Ramdev

(PW-11) that they have found a sim of Mobile No.9680485453 and

inquired about the relationship of sim holder with him. Ramdev

(PW-11) replied that the mobile sim was with his son Udda @ Udai

Singh. Thereupon when he reached near Keriya, the police was

bringing dead body of his nephew. There were multiple injuries

caused from knife on his face and hands. It is further mentioned

in the F.I.R. that some unknown persons had killed his nephew

and thrown his dead body on Kaccha Path of Kanwarpura. On the

basis of the report, the police registered the F.I.R. No.45/2013 at

Police Station Phagi, District Jaipur Rural and started investigation.

3. On conclusion of the investigation, the police submitted

charge-sheet against accused-appellants-Ramphool @ Phool Ram

@ Foolya and Nirmala @ Dhara for offences under Sections 302,

201 and 120-B I.P.C. Charges under Sections 302, 201 and 120-B

I.P.C. were framed against accused-appellant-Ramphool @ Phool

Ram @ Foolya and charge under Section 120-B I.P.C. was framed

against accused-appellant-Nirmala @ Dhara. Both the accused-

appellants denied charges and claimed trial. On behalf of the

prosecution, as many as 23 witnesses & 38 documents were

exhibited and 12 articles were produced. The learned Trial Court

examined the accused-appellants-Ramphool @ Phool Ram @

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Foolya and Nirmala @ Dhara under Section 313 Code of Criminal

Procedure, wherein, they denied the allegations and stated that

they have been falsely implicated in the case. In defence, 3

witnesses, namely; Dhannalal Bairwa (D.W-1), Sukhdev (D.W-2)

and Kaluram Gurjar (D.W-3) were examined. Police statements

Ex.D-1 to Ex.D-5, were got exhibited. After hearing the

arguments, learned Trial Court vide impugned judgment found the

present accused-appellants guilty and sentenced them as stated

herein above.

4. It is contended by counsel for the accused-appellants that

the prosecution case rests upon circumstantial evidence.

Prosecution has failed to prove the complete chain of events and

circumstances. Accused-appellants are not named in the F.I.R. The

learned Trial Judge has relied on the statement of Dev Karan (P.W-

6) regarding last seen evidence which is not at all reliable. It is

also contended that a false story has been developed regarding

love affair between accused-appellant-Ramphool @ Phool Ram @

Foolya and accused-appellant-Nirmala @ Dhara, wife of deceased.

No motive for committing the offence is made out. Other

circumstantial evidence regarding call details between appellant-

Ramphool @ Phool Ram @ Foolya and co-accused appellant-

Nirmala @ Dhara, cannot be read in evidence, as call details are

not supported by any Certificate required under Section 65-B of

the Evidence Act and in absence of such Certificate, such call

details cannot be taken into consideration while adjudicating the

case.

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

the recovery of articles cannot be made a ground for conviction,

[2023/RJJP/000263] (5 of 13) [CRLA-1532/2017]

as the blood group was inconclusive. It is also contended that

disclosure under Section 27 of the Indian Evidence Act, regarding

place of occurrence is not a fact discovered, as the place of

occurrence was already known to the police, thus the same is not

admissible under Section 27 of the Evidence Act.

6. Counsel for the accused-appellants have placed reliance on

"Balwan Singh vs. State of Chhattisgarh & Anr." (2019) 7

Supreme Court Cases 781 and "Ramesh Bhai & Anr. vs. State

of Rajasthan" (Criminal Appeal Nos.868-869 of 2004 decided by

Hon'ble Apex Court on 24.04.2009).

7. Learned Additional Government Advocate appearing on

behalf of the State as well as counsel appearing on behalf of the

complainant have opposed these Criminal Appeals. It is contended

that the chain is formed. There is recovery of an axe and clothes

of accused-appellant-Ramphool @ Phool Ram @ Foolya, both were

found to be stained with human blood as evident from the report

of Forensic Science Laboratory, which leads to the guilt of the

accused-appellant. It is also contended that accused-appellant-

Ramphool @ Phool Ram @ Foolya, was having an extra-marital

affair with accused-appellant-Nirmala @ Dhara and that was the

reason for committing the heinous offence.

8. We have considered the contentions.

9. Admittedly, there is no eye-witness in this case and the case

rests upon circumstantial evidence. The first circumstance against

accused-appellant-Ramphool @ Phool Ram @ Foolya, is last seen

evidence. As per statement of Dev Karan (PW-6), he had seen

Udai Singh with accused-appellant-Ramphool @ Phool Ram @

Foolya on a motor-cycle on 03.02.2013 at around 12:00 to 01:00

[2023/RJJP/000263] (6 of 13) [CRLA-1532/2017]

pm, he has deposed that deceased-Udai Singh is his brother-in-

law's son. However, Ramji Lal (PW-3), cousin of the deceased-Udai

Singh, has stated that on 03.02.2013, Udda @ Udai Singh left the

house at around 02:00 pm and when he left the house he said

that he is going to Devnarayan Maharaj, Village Jodhpuriya, Tehsil

Newai, District Tonk. He left the house on foot, thus the chances

of Dev Karan (PW-6), seeing deceased-Udai Singh with accused-

appellant-Ramphool between 12:00 to 01:00 pm, becomes

doubtful. It is also evident to note that F.I.R. in this case is a

written report, wherein it is also mentioned that deceased-Udai

Singh, left the house at 02:00 pm. In the F.I.R., it is mentioned

that some unidentified persons have murdered Udai Singh. It is

also evident that Dev Karan (PW-6) is related to the deceased-

Udai Singh. Had he seen Udda @ Udai Singh with accused-

appellant-Ramphool, this fact would have surely come in the F.I.R.

The F.I.R. in this case was lodged on 04.02.2013 at 04:30 pm and

the theory of last seen was first developed on 08.02.2013 by Dev

Karan (PW-6), when his statement was recorded under Section

161 Cr.P.C. No explanation whatsoever has been put-forth, as to

why the fact of last seen was not told to the Police at the time

when the F.I.R. was lodged and for another four days. The theory

of last seen is thus not established.

10. The other circumstance against accused-appellants-

Ramphool and Nirmala, is the call details between them. As per

prosecution, they were having an extra-marital affair. As far as

relationship between deceased-Udda @ Udai Singh and accused-

appellant-Nirmala, is concerned, Manraj (PW-13), who is brother

of the deceased-Udda @ Udai Singh, has admitted in his cross-

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examination that deceased-Udda @ Udai Singh, was not having

any dispute with accused-appellant-Nirmala and both were happily

living together.

11. Ramratan (PW-8) has also stated that they were not having

any doubt with regard to involvement of accused-appellant-

Nirmala in the murder of deceased-Udda @ Udai Singh. The only

circumstance which has been made a ground for convicting

accused-appellant-Nirmala for offence under Section 120-B I.P.C.,

is her call details with accused-appellant-Ramphool. Call details

have been exhibited as Ex.P-30 to Ex.P-32. It is evident that no

Certificate under Section 65-B of the Indian Evidence Act has been

produced before the learned Court below with regard to the call

details.

12. Section 65-B of the Indian Evidence Act, 1872 reads as

under:-

"Section 65B. Admissibility of electronic records.--

(1.) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact

[2023/RJJP/000263] (8 of 13) [CRLA-1532/2017]

stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-

section (1) in respect of a computer output shall be the following, namely:--

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

[2023/RJJP/000263] (9 of 13) [CRLA-1532/2017]

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,--

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

[2023/RJJP/000263] (10 of 13) [CRLA-1532/2017]

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.-- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."

13. For producing any electronic document, a Certificate under

Section 65-B(4) of the Indian Evidence Act, is mandatory. In

absence of the Certificate, call details cannot be looked into. Thus,

the only circumstance i.e. the call details, which has been made a

ground for convicting accused-appellant-Nirmala, cannot be read

in evidence and thus her conviction cannot be upheld. Even for the

sake of arguments, if the call details are considered, the same

cannot lead to the inference that accused-appellant-Nirmala was

having an extra-marital affair with accused-appellant-Ramphool or

that she was involved in the commission of the offence.

14. The only evidence now against accused-appellant-Ramphool

@ Phool Ram @ Foolya is recovery of an axe and blood stained

clothes. As far as report of the F.S.L. is concerned, Gandasa and

the shirt which was recovered from accused-appellant-Ramphool

@ Phool Ram @ Foolya was found to have human blood but, blood

grouping was inconclusive. It is evident that information under

Section 27 of the Evidence Act was given on 10.02.2013 vide

[2023/RJJP/000263] (11 of 13) [CRLA-1532/2017]

Ex.P-34 at 01:30 pm, whereas, recovery of Gandasa was on the

next day vide Ex.P-13 at 10:20 am. The recovery of Gandasa after

a delay also cast doubt on the recovery.

15. From perusal of the post-mortem report (Ex.P-17), it is

evident that deceased has sustained several incised wounds of

different sizes ranging from 4 cm x 2 cm to 11 cm x 2 cm and

from 3 cm x 2 cm to 8 cm x 2 cm. All the injuries were bone deep

but their sizes vary from 2 cm to 11 cm. The probability of the

wounds being caused by an axe is remote. It is also evident that

the axe was not put to the doctor to establish that injuries could

have been caused by an axe which was recovered from the

accused-appellant-Ramphool @ Phool Ram @ Foolya. The blood

group being inconclusive, mere recovery of an axe and clothes

cannot be made a ground for convicting the accused-appellant-

Ramphool.

16. The other circumstance against accused-appellant-Ramphool

@ Phool Ram @ Foolya is call details. Since, there is no Certificate

under Section 65-B of the Indian Evidence Act, the call details also

cannot be read in evidence against accused-appellant-Ramphool

@ Phool Ram @ Foolya.

17. No chain as such could be connected to come to the

conclusion that offence was committed by accused-appellant-

Ramphool @ Phool Ram @ Foolya alone. As per the defence

version, Dhannalal Bairwa (DW-1) has stated that deceased was

stuck in the plough and sustained injuries and the tractor driver

was trying to get the deceased out of the plough. He has also

stated that the tractor driver ran away from the place and they

informed the villagers and the police. He has also stated that

[2023/RJJP/000263] (12 of 13) [CRLA-1532/2017]

incident took place in the evening. Kaluram Gurjar (DW-3) has

also stated that deceased sustained injuries as he got stuck in the

plough and they immediately informed the villagers and the police

and all the villagers gathered at the place. The defence version

cannot be discarded for the very reason that as per prosecution

version, police reached the spot and from there with the aid of the

sim contacted relatives of the deceased.

18. The prosecution failed to prove the guilt of the accused-

appellants beyond reasonable doubt and the circumstances do not

form a complete chain so as to hold the accused-appellants guilty.

The learned Trial Court has erred in convicting the accused-

appellants.

19. In "Sharad Birdhichand Sarda v. State of Maharashtra",

(AIR 1984 SC 1622), it has been held that onus was on the

prosecution to prove that the chain is complete and the infirmity

of lacuna in prosecution cannot be cured by false defence or plea.

The conditions precedent in the words of this Court, before

conviction could be based on circumstantial evidence, must be

fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of 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;

[2023/RJJP/000263] (13 of 13) [CRLA-1532/2017]

(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.

20. In view of the above, these Criminal Appeals, therefore,

deserve to be and are accordingly, allowed. The judgment and

sentence dated 18.05.2017 passed by learned Additional District &

Sessions Judge, Sambhar Lake, District Jaipur, in Sessions Case

No.41/2013 (27/2013), is quashed and set aside. The appellants

are acquitted of the charges levelled against them. The accused-

appellant-Nirmala @ Dhara, in Criminal Appeal No. 1267/2017, is

on bail. The bail bonds earlier submitted by the accused-appellant-

Nirmala @ Dhara, in Criminal Appeal No. 1267/2017, shall stand

cancelled. The other accused-appellant-Ramphool @ Phool Ram @

Foolya, is in custody, he be set at liberty forthwith, if not required

in any other case or for any other purpose.

21. Appellants 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 appellants on receipt of notice thereof, shall appear

before the Hon'ble Apex Court. The bail bonds will be effective for

a period of six months.

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

                                   AMIT/53-54







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