Anand Kumar Sharda vs State Of Rajasthan Through P P
2023 Latest Caselaw 277 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                   D.B. Criminal Appeal No. 73/2018

Anand Kumar Sharda S/o Sh. Jagdish Ram, R/o Ward No.8,
Gayatri Colony, Pilani Police Station Pilani District Jhunjhunu. At
Present Serving The Sentence At Central Jail, Bikaner.
                                                                   ----Appellant
                                    Versus
State Of Rajasthan Through PP.
                                                                 ----Respondent

For Appellant(s) : Mr. Dushyant Singh Naruka with Mr. Badrinarayan Sharma For Respondent(s) : Mr. Javed Choudhary, Add. G.A.

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

JUDGMENT

JUDGMENT RESERVED ON : 22/12/2022 DATE OF PRONOUNCEMENT : 10/01/2023

(PER HON. BIRENDRA KUMAR, J.)

1. The sole appellant faced trial in Sessions Case No. 69/2016

arising out of FIR No. 241/2015 registered with Pilani Police

Station for offence under Section 302 IPC. By judgment and order

dated 31.1.2018, the learned trial Judge found the appellant guilty

for offence under Section 302 IPC and awarded Rigorous

Imprisonment of life along with fine of Rs. 10,000/-. In default of

payment of fine further six months imprisonment was ordered.

The aforesaid judgment and order are under challenge in this

appeal.

2. Chanchal Sarda (PW.1) is wife of the appellant as well as

informant of the case. According to First Information Report on

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7.7.2015, she left her house at 6.00 AM to go to school where she

was a teacher. At that time, the parents Jagdish and Kala Devi

(both victim of murder) and husband of the informant (appellant)

were at the house. At about 3.15 PM, the informant returned to

her house and saw that the parents in law were dead. Blood had

spread near the dead body, thereafter she phoned to the appellant

but the phone was switched off, motor cycle of the appellant was

also not at the house. The informant suspected that some

unknown persons committed murder of the parents in law.

3. After completion of investigation, the police submitted

charge-sheet against the appellant.

4. The prosecution relied upon the following circumstances

against the appellant to establish that the appellant was involved

in the murder:

(a) Some neighbours stated to the police that the appellant wanted to sell out the said house which was in the name of parents and for that parents were not ready.

(b) The appellant was seen last along with the deceased.

(c) After the incident, the appellant left the house till he was arrested on 10.7.2015 at Nangal in Himachal Pradesh.

(d) The appellant who was also a teacher in another school was not attending the school from 4.7.2015 without any information to the school as per the report of Principal of the school, collected by the police and marked as Exhibit P/39 during trial.

(e) The bricks used in committing assault against one of the deceased and some clothes of the appellant were recovered by the police on disclosure of the appellant.

5. Learned counsel for the appellant strenuously contends that

circumstances relied upon by the prosecution remained not proved

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as none of the prosecution witnesses supported that the appellant

was last seen along with the deceased or the appellant had any

motive to commit murder of the parents. Learned counsel

contends that the learned trial court failed to appreciate that the

FIR and statements under Section 161 Cr.P.C before the police

have only corroborative value and that cannot be taken as

substantive evidence during trial unless the person lodging the FIR

and the witnesses whose statements under Section 161 Cr.P.C.

were recorded appears before the court and support the

prosecution case. In fact, statement under Section 161 Cr.P.C has

only got corroborative value. Reliance has been placed on Parvat

Singh V. State of M.P. reported in (2020) 4 SCC 33 wherein

the Hon'ble Supreme Court held that statement recorded under

Section 161 Cr.P.C is inadmissible evidence and cannot be relied

upon or used to convict the accused. Learned counsel contends

that statement of the accused before the police accepting his guilt

cannot be proved in view of specific bar under Section 25 and 26

of the Indian Evidence Act. The statements leading to recovery

has only corroborative value and cannot be sole basis and

conclusive evidence to hold guilt of the appellant. Learned

counsel contends that unless the prosecution discharged its

burden to prove the case against the accused beyond doubt, the

question of reverse burden on the accused to establish non

existence of the facts within his personal knowledge would not

arise. Learned counsel for the appellant has relied upon the case

of Nagendra Sah Vs. State of Bihar reported in (2021) 10

SCC 725. In a case of circumstantial evidence if the chain of

circumstances which is required to be established by the

prosecution is not established, the failure of the accused to

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discharge the burden under Section 106 of the Indian Evidence

Act is not relevant at all. When the chain is not complete, falsity

of the defence is no ground to convict the accused.

6. Learned counsel for the State contends that the main

witness on the last seen is wife of the appellant who has been

gained over by the appellant for apparent reason that they want

to continue with their relationship. Learned counsel contends that

merely for the reason that some of the prosecution witnesses have

turned hostile, the surrounding circumstances pointing towards

the guilt of the appellant cannot be discarded. The learned trial

Judge has taken note of all these facts while recording conviction

and awarding sentence against the appellant.

7. The law relating to appreciation of prosecution case based on

circumstantial evidence is well settled that the prosecution must

prove all the circumstances relied upon. Further the proved

circumstances must form a complete chain as pointer towards

guilt of the accused and excluding every hypothesis of innocence

of the accused. Suspicion howsoever strong may be cannot take

the place of proof. It is also trite law that the accused has right of

silence and merely for non explaining the facts within his

knowledge would not absolve the prosecution from primary

responsibility to prove the charge beyond reasonable doubt. In

Sharad Birdhichand Sarda v. State of Maharashtra, (1984)

4 SCC 116, the Hon'ble Supreme Court stated as follows:

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the

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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."

8. The aforesaid view was consistently followed in subsequent

judgments, reference may be made to Rameksh Bhai Vs. State

of Rajasthan reported in (2009) 12 SCC 603.

9. There is no prosecution evidence to prove that the appellant

had any motive to commit murder of his parents. The prosecution

made suggestion to PW.2 Gaurav Sarda, the son of the appellant

that since the appellant was suffering from hypertension, in a

rage, he committed murder of his parents. This fact was denied

by PW.2 rather PW.2 specifically stated that the appellant is a

school teacher and he had very lovely relation with the parents.

PW.2 is not a hostile witness, therefore, the defence can very well

rely upon the statement made by PW.2. Moreover, suggestion

made by the prosecution to this witness depicts a different reason

for commission of murder than the stated motive relied by the

police i.e. to sell out the said house. The aforesaid conflict

assumes importance in the facts and circumstances of this case.

In a case based on circumstantial evidence motive to commit a

crime has relevance which the prosecution has failed to prove and

establish in this case.

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10. There is no prosecution evidence that the appellant was last

seen along with the deceased. The FIR cannot be substantive

evidence to support this fact as held by the trial Judge. Moreover,

even if the statement in FIR is taken on its face value, it was in

the morning at 6.00 A.M. when the appellant was at the house

along with deceased. PW/1 deposed that her husband had gone to

the hospital for check up of his eyes. The motor cycle of the

appellant was recovered from the premises of Birla Hospital on the

date of the incident itself which substantiate the statement of

PW/1 that in fact the appellant had gone to the hospital,

therefore, it cannot be definitely said that the appellant was last

seen along with the deceased before their death. Moreover, the

post mortem report at Ex.P/14 and P/15 of both the deceased

would reveal that one died of cut wounds caused by sharp edged

weapon and another sustained injury by hard and blunt substance

therefore, involvement of two persons in the incident cannot be

completely ruled out. It was bounden duty of the prosecution to

explain the aforesaid loops. The principal of the school or any

other person from the school competent to say whether the

appellant was absent without authority from 4.7.2015 was not

produced as prosecution witness. If any witness would have

appeared during trial to substantiate this fact the appellant would

have got an opportunity to cross examine but the fact remains

that some materiel collected by the police (Ex.P/39) remained

unproved and genuineness of the same could not be challenged by

the appellant during trial, therefore, this evidence ought not to

have been relied upon. The prosecution failed to establish that on

the date of incident mobile phone of the appellant was switched

off for the whole day nor any substantial materiel has been

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brought on the record save and except bald statement of the

Investigating Officer. The recovery of bricks and clothes at the

instance of appellant would not lead to the conclusion that the

appellant has committed the crime alleged. These evidences have

just corroborative value and corroboration is required to some

main evidence. In the case on hand, there is no main evidence to

prove the circumstances relied upon against the appellant. As

noticed above, the prosecution has failed to prove chain of

circumstances against the appellant excluding any hypothesis that

some other person might have been involved in commission of the

crime alleged. The appellant is thus entitled to benefit of doubt.

11. In the result, the impugned judgments and orders of

sentence passed against the appellant stand hereby set aside and

this appeal is allowed. The appellant is acquitted of the charges

levelled against him. Let the appellant who is in custody, be

released forthwith in this case.

12. Appellant is directed to furnish a personal bond 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.

                                   (BIRENDRA KUMAR),J                                            (PANKAJ BHANDARI),J

                                   BRIJ MOHAN GANDHI /77









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