Bhajan Lal vs State
2023 Latest Caselaw 671 Raj

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                  D.B. Criminal Appeal No. 108/2018

  Bhajan Lal S/o Shri Bhani Ram, by caste Mali, R/o Bhaleri,
  Tehsil   Tara   Nagar,       Police    Station     Bhaleri,    District   Churu
  (Presently lodged in Central Jail, Bikaner)


                                                                   ----Appellant
                                        Versus
The State of Rajasthan
                                                                 ----Respondent


For Appellant(s)           :     Mr. Nishant Bora
                                 Mr. Rakesh Gehlot
For Respondent(s)          :     Mr. R.R. Chhaparwal, PP



            HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MR. JUSTICE KULDEEP MATHUR

                               JUDGMENT

Judgment pronounced on                    :::            18/01/2023

Judgment reserved on                      :::           07/12/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

The appellant herein has been convicted and sentenced as

below vide judgment dated 03.04.2018 passed by learned Special

Judge, SC/ST (Prevention of Atrocities) Act Cases, Churu in

Special Sessions Case No.43/2013:-

Offence     Sentences                   Fine              Sentence in lieu of
under                                                     default of payment
Section                                                   of fine
302 IPC     Life Imprisonment Rs.2,000/-                          --

328 IPC     3 Years' S.I.               Rs.10,000/- 3 Months' Additional
                                                    S.I.


                                      (2 of 15)                 [CRLAD-108/2018]


3(2)(v) of Life imprisonment Rs.2,000/-                        --
SC/ST Act

All the sentences were ordered to run concurrently.

He has preferred the instant appeal under Section 374 (2)

Cr.P.C. for assailing his conviction and the sentences awarded to

him by the trial court by the impugned judgment.

Briefly stated the facts relevant and essential for disposal of

the instant appeal are noted hereinbelow:-

Shri Prabhu Ram (PW.4) lodged a written report (Ex.P/11) to

the Superintendent of Police, Churu on 08.06.2013 alleging inter

alia that his daughter Mst. 'N' (hereinafter referred to the as 'the

victim') was being stalked and molested by Guttu, Bhajana Ram

sons of Bhani Ram, Shankar Lal S/o Shri Kushala Ram and 3-4

other boys. The informant implored Bhani Ram but he did not

desist and insinuated that if any complaint was made, the girl

would be carried off. On the very same morning, his daughter, the

victim had gone to the nearby field for attending to the call of

nature and for making cow-dung cakes. While she was there,

Guttu, Bhajan Lal, Shankar Lal and 3-4 other boys subjected the

victim to gang rape. The girl cried out in anguish. The informant

and his son Kamal ran towards the source of the fervent cries and

saw the accused persons inflicting sharp weapon injuries to the

victim and thereafter, they poured some poisonous substance into

her mouth and fled away from spot. The informant alleged in the

(3 of 15) [CRLAD-108/2018]

FIR that he and his son Kamal saw the accused committing the

crime and running away from the place of incident from close

quarters. His daughter fell down while bleeding profusely. On

hearing hue and cry, the family members collected, the police was

informed who picked up the girl and got her admitted to Bhartiya

Hospital, Churu but she did not survive and passed away.

On the basis of this report, FIR No.44/2013 for the offences

punishable under Sections 376 (>), 302, 328/34 IPC and Sections

3(1)(xii) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act

was registered at the Police Station Bhaleri, District Churu and

investigation commenced. The accused appellant Bhajan Lal was

arrested. It is alleged that in furtherance of the disclosure

statement made by accused appellant to the IO under Section 27

of the Evidence Act, recoveries of the knife used for inflicting

injuries to the victim and the bottle of insecticide from which she

was administered poison were effected. During investigation, the

IO did not find other persons named in the FIR to be involved in

the crime and accordingly, charge-sheet came to be filed only

against the accused appellant for the offences punishable under

Sections 302, 328 IPC and Section 3(2)(v) of the SC/ST

(Prevention of Atrocities) Act. The trial court framed charges

against the accused appellant for these offences. He pleaded not

guilty and claimed trial. Eleven witnesses were examined

whereafter, the prosecution moved an application under Section

311 Cr.P.C. which was accepted and Shankar Lal and Guttu were

also summoned as additional accused to face trial in the case.

(4 of 15) [CRLAD-108/2018]

Charges were framed against these accused also. They too

pleaded not guilty and claimed trial. One more witness was

examined and the prosecution evidence was closed. In addition to

the examination of 12 witnesses, the prosecution also exhibited 45

documents in support its case. The accused, upon being

questioned under Section 313 Cr.P.C., claimed to be innocent and

stated to have been falsely implicated. Six witnesses were

examined in defence and seven documents were exhibited. After

hearing the arguments advanced by the Public Prosecutor and the

counsel representing the accused, the learned trial court,

proceeded to acquit the accused Guttu and Shankar Lal of the

charges.

Categoric finding was recorded by the trial court at para

No.32 of the impugned judgment that the prosecution made

wholesale improvements in its story and tried to project Prabhu

Ram and Daulat Ram as eyewitnesses of the incident even though

they were not present in the village at the time of incident. The

evidence of PW.1 Kamlesh was discarded and it was held that he

too did not see the incident and was trying to become an

eyewitness of the incident posteriorly. The evidence of PW.2 Smt.

Manju, mother of the victim wherein she tried to become an

eyewitness of the incident was also discarded holding that she did

not see the incident and at best could have seen the accused

running away from the place of incident. The statement of Sunita

(PW.5) who claimed that she and her mother Smt. Manju lastly

saw the three accused persons running away from the field of

Abdul Habab where the incident took place was believed to this

(5 of 15) [CRLAD-108/2018]

extent. Qua the accused Guttu and Shankar Lal, the trial court

observed that the prosecution case against them was only

acceptable to the extent of they having been seen running away

from the place of incident but merely on such evidence, they could

not be convicted. Accordingly, these two accused persons were

acquitted by giving them the benefit of doubt. Findings recorded

by the trial court on these important aspects of the case at para

Nos.32 to 39 of the impugned judgment are reproduced

hereinbelow for the sake of ready-reference:-

"32& bl izdkj bl ekeys esa tks lk{; dk foospu fd;k x;k gS] mlls xokgku }kjk vius iqfyl c;kuksa ls lq/kkj dj izHkqjke o nkSyrjke dks ?kVuk dk p'enhn lk{kh cukus dk iz;kl fd;k x;k gSA tcfd okLro esa ?kVuk ds le; nkSyrjke o izHkqjke ?kVukLFky ij ugha FksA ,slh lwjr esa bu xokgku dks p'enhn lk{kh gksuk ugha ekuk tk ldrk vkSj bu xokgku dh rFkkdfFkr lk{; ds vk/kkj ij vfHk;qDrx.k dks vijk/k esa lafyIr ugha fd;k tk ldrkA

33& vc bl ekeys esa xokg deys'k ds p'enhn lk{kh gksus dk tgkWa rd iz'u gSA ml ij fopkj fd;k tk jgk gSA ih-MCY;w- 1 ds :i esa xokg deys'k us U;k;ky; esa ?kVukLFky ij igWqpdj Hktuyky }kjk Nqjh ekjrs ns[kuk] xqV~Vq }kjk ck;ka o 'kadjyky }kjk nk;ka gkFk idM+uk vkSj 'kadjyky }kjk ,d gkFk ls Lizs fujek dks fiyk jgs gksuk ns[kuk crk;k x;k gSA tcfd bl xokg }kjk izn'kZ Mh 1 iqfyl c;ku esa fgLlk , ls ch esa ;g crk;k fd og lqcg 8%00&8%30 cts ikbZi ykus ds fy, cl LVs.M x;k gqvk FkkA okfil ?kj vk;k rks bZLekbZy dkth dh yM+dh us vkdj dgk fd rsjh cM+h cfgu dks pkdw ekj fn;k rc og vCnqy gckc ds [ksr esa Hkkxdj x;kA bZ ls ,Q fgLlk esa ;g dgk fd lk{kh us fdlh dks viuh cfgu dks ekjihV djrs ugha ns[kkA

34& bl izdkj xokg ih-MCY;w- 1 deys'k Lo;a ds /kkjk 161 n.M izfdz;k lafgrk ds dFkuksa esa lq/kkj dj Lo;a dks ?kVuk dk p'enhn lk{kh gksuk crkrk gS] tks mfpr ugha gSA ;g xokg ?kVuk ?kfVr gksus ds i'pkr~ gh ekSds ij igWqpuk izrhr gksrk gS] tks iqfyl okyksa ds vkus ds i'pkr~ muds lkFk e`rdk dks vLirky ysdj x;k FkkA bl ekeys esa tks izn'kZ Mh 7 jiV jkspukepk gS] ;fn xokg dks ?kVuk dkfjr djus okyksa dh tkudkjh gksrh rks og Hkh iqfyl dks crk ldrk Fkk vkSj izn'kZ Mh 7 esa mldk mYys[k gks ldrk FkkA ijUrq izn'kZ Mh 7 jkspukepk jiV esa ;g Li"V :i ls vk;k gS fd Jheku~ lh-vks- lkgc] ljnkj'kgj us tfj, VsyhQksu funsZ'k Qjek;k fd izdj.k esa Hktuyky

(6 of 15) [CRLAD-108/2018]

dk uke lkeus vk;k gSA ;kfu lh-vks-] ljnkj'kgj }kjk VsyhQksu ij crkus ij Hktuyky dk uke lkeus vk;kA ;fn xokg }kjk ?kVuk ns[kh tkrh rks og mlh le; iqfyl okyksa dks crk ldrk Fkk vkSj mldk gokyk bl jkspukepk jiV esa vk ldrk FkkA ,sls gkykr esa Hkh ;g xokg ?kVuk dk p'enhn lk{kh u gksdj p'enhn lk{kh cuus dk iz;kl djuk izrhr gksrk gSA

35& ,slh voLFkk esa ;qfDr;qDr lansg ls ijs ;g Li"V ugha gksrk fd xokg deys'k p'enhn lk{kh gSA ,slh voLFkk esa bl xokg dks ?kVuk dk p'enhn lk{kh gksuk ekudj mldh lk{; ds vk/kkj ij vfHk;qDrx.k dks nks"kh ugha Bgjk;k tk ldrkA

36& tgkW rd ih-MCY;w- 2 eatw dk iz'u gSA bl xokg us viuh eq[;

ijh{kk esa ;g dgk gS fd deys'k] Hkokuh'kadj] fujek ds ikik izHkqjke o nkSyrjke ekSds ij x;s rFkk lkf{k;k us rhu tuksa dks Hkkxrs gq, ns[kk Fkk] ftjg esa ;g Lohdkj fd;k fd ?kVuk ugha ns[kh] ekjihV gksrs ugha ns[kh] dsoy eqyfteku dks Hkkxrs gq, ns[kkA bl xokg }kjk vius iqfyl c;ku izn'kZ Mh 2 ds dFkuksa esa lq/kkj djrs gq, fojks/kkHkklh lk{; U;k;ky; esa nh gS vkSj iqfyl c;ku izn'kZ Mh 2 ds fgLls fy[kk;s tkus tkus ls bUdkj fd;k gS] tcfd vuqla/kku vf/kdkjh ih- MCY;w- 12 egsUnz dqekj }kjk tSlk xokg us c;ku fn;k oSlk fy[kk tkuk crk;k gSA dsoy ek= bl xokg }kjk eqyfteku dks Hkkxrs gq, ns[kuk iqfyl c;ku esa crk;k gSA izHkqjke o nkSyrjke dk ?kVukLFky ij tkuk ugha crk;kA ,slh voLFkk esa bl xokg dh lk{; dsoy ek= Hktuyky] xqV~Vq o 'kadjyky dks ?kVukLFky ls Hkkxrs gq, ns[kus dh gnrd gh lqlaxr gSA

37& tgkWa rd xokg ih-MCY;w- 5 lqfurk dk iz'u gSA bl xokg us viuh cfgu fujek ds lkFk xkscj Fkkius o 'kkSp ds fy, bZfy;kl O;kikjh ds [krs esa tkuk] ogkWa ij Hktuyky] xqV~Vq o 'kadjyky dk vkuk vkSj buds }kjk fujek dks vCnqy gckc ds [ksr esa ys tkuk crk;k gS vkSj Hkkxrs gq, ?kj ij vkdj viuh ekWa dks crkuk dgk gSA tc okfil og rFkk mldh ekWa vCnqy gckc ds [ksr esa xbZ rks Hktuyky] xqV~Vq o 'kadjyky dks Hkkxrs gq, ns[kuk vkSj Hktuyky ds gkFk esa Nqjh o 'kadjyky ds gkFk esa Lisz dh ckSry ns[kuk crk;k gSA ftjg esa ;g Li"V gqvk gS fd bl xokg }kjk Hkh izn'kZ Mh 5 vius iqfyl c;ku esa lq/kkj dj c;ku fn, gaSA bl xokg us vius iqfyl c;ku esa pkj O;fDr;ksa dk vkuk crk;k gS] tcfd U;k;ky; esa rhu O;fDr;ksa dk vkuk crk;k gSA ,slh voLFkk esa bl xokg dh lk{; ek= bl gn rd lqlaxr gS fd bZfy;kl O;kikjh ds [ksr esa ls eqyfteku mldh cfgu dks mBkdj ys x, o ckn esa ?kVukLFky ij nqckjk viuh ekWa ds lkFk tkus ij rhuksa eqyfteku dks Hkkxrs gq, bl xokg }kjk ns[kuk crk;k gSA

(7 of 15) [CRLAD-108/2018]

38& tgkWa rd xokg ih-MCY;w- 6 Hkokuh'kadj dk iz'u gSA bl xokg us Lo;a dk rFkk Lo;a ds pkpk izHkqjke dk fujek ds fpYykus dh vkokt lqudj ekSds ij Hkkxdj tkuk vkSj ?kVuk ?kfVr gksrs ns[kuk crk;k gSA ftjg esa bl xokg us iqfyl c;ku izn'kZ Mh 6 dk fgLlk , ls ch] lh ls Mh o bZ ls ,Q dks xyr gksuk crk;k gSA bl xokg us Hkh izn'kZ Mh 6 iqfyl c;ku esa lq/kkj dj o iqfyl c;ku ls fojks/kkHkklh dFku U;k;ky; esa fd, gSaA ;g xokg izHkqjke dk lxk Hkfrtk gS] tks fj'rsnkj gSA bl xokg us izn'kZ Mh 6 esa lh ls Mh Hkkx esa ;g dgk fd NksVh cfgu Hkkxrh gqbZ okfil vkbZ vkSj dgk fd fujek ds pkdw ekj fn;kA tc og Hkkxdj okfil x;k rks 15&20 vkneh o iqfyl [kM+h FkhA iqfyl c;ku esa ?kVuk ?kfVr gksrs gq, vkSj eqyfteku }kjk dksbZ pksVsa fujek dks igWaqpkrs gq, ;k Lisz fiykrs gq, ns[kuk ugha crk;k gSA ,slh lwjr esa ;g xokg Hkh vius iqfyl c;kuksa esa lq/kkj dj Lo;a dks ?kVuk dk p'enhn lk{kh gksuk crkus dk iz;kl dj jgk gS] ftls ? kVuk dk p'enhn lk{kh gksuk ugha ekuk tk ldrkA bl izdkj dsoy ek= ?kVuk ?kfVr gksus ds i'pkr~ ?kVukLFky ij igWaqpuk gh vf/kd ls vf/kd bl xokg dh lk{; ls ekuk tk ldrk gSA

39& iwoZ esa fd, x, lk{; foospu ls eqyfteku }kjk e`rdk fujek ds pkdw dh pksV igWaqpkuk] Lizs fiykrs gq, ns[kus ckcr ;qfDr;qDr lansg ls ijs lk{; i=koyh ij ugha gSA dsoy ek= xokg ih-MCY;w- 5 lqfurk dh ;g lk{; gS fd tc og viuh cfgu ds lkFk bZfy;kl O;kikjh ds [ksr esa xkscj Fkkius o 'kkSp ds fy, xbZ Fkh rks rhuksa eqyfteku vk, vkSj mldh cfgu dks mBkdj vCnqy gckc ds [ksr esa ys x;sA xokg ih-MCY;w- 2 eatw o ih-MCY;w- 5 lqfurk dh lk{; ls ;g Li"V gS fd tc nksuksa ekWa&csVh vCnqy gckc ds [ksr dh rjQ x, rks bu nksuksa us rhuksa eqyfteku dks Hkkxrs gq, ns[kkA blls vf/kd lk{; ?kVuk ds lEca/k esa i=koyh ij ;qfDr;qDr lansg ls ijs ugha ugha vk;h gSA "

Qua the accused appellant, the learned trial court particularly

relied upon the evidence of the witnesses being the family

members of the accused. Their evidence was then found

corroborated by the alleged recoveries of the knife used to commit

the murder and so also the bottle of insecticide which was

administered to the victim. Arriving at these findings, the accused

was held guilty, convicted and sentenced as above by the

impugned judgment dated 03.04.2018, which is assailed in this

appeal.

(8 of 15) [CRLAD-108/2018]

Learned counsel Shri Bora representing the appellant,

vehemently and fervently urged that the findings recorded by the

trial court for convicting the appellant as above are perverse and

unsustainable on the face of the record. He urged that as the trial

court has discarded the evidence of the witnesses related to the

victim on material aspects holding that their testimony is tainted

and full of deliberate improvements, there was no justification

whatsoever for the trial court to have convicted the accused on

the flimsy evidence of recoveries. He contended that even finding

recorded by the trial court that the evidence of Smt. Manju (PW.2)

and Sunita (PW.5) was reliable and acceptable on the aspect that

they saw the accused running away from the crime scene is

unsustainable on the face of the record because the trial court

has, not relied upon the same set of evidence qua the two co-

accused persons who have been acquitted. Shri Bora further urged

that the recoveries made by the IO at the instance of the accused

appellant are also fabricated. Proper link evidence was not led by

the prosecution so as to establish the safe custody and sanctity of

the recovered articles. His further submission was that no

conclusive inference of guilt can be drawn merely on the basis of

recovery of the knife even if it was carrying blood stains of the

same blood group as that of the victim. He further submitted that

the trial court totally ignored the evidence of the defence

witnesses, hence also, the impugned judgment is unsustainable in

the eyes of law. It was his submission that a bare perusal of the

evidence of defence witnesses would be sufficient to satisfy the

Court that it is a case of false implication of the accused plain and

simple. On these grounds, learned counsel Shri Bora implored the

(9 of 15) [CRLAD-108/2018]

Court to accept the appeal, set aside the impugned judgment and

acquit the accused appellant of the charges.

Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by the appellant's

counsel. He urged that the informant and the other material

prosecution witnesses hail from a rural background. The defence

has not alleged that the witnesses had any motive to falsely

implicate the accused in the case. Learned Public Prosecutor

further submitted that even though the State has not preferred

any appeal against acquittal, this Court, while exercising power

under Section 386 Cr.P.C. can reverse the findings recorded by the

trial court whereby the evidence of the material witnesses was

discarded. He further submitted that the evidence of the

eyewitnesses coupled with the factum of highly incriminating

recoveries i.e., the blood stained knife and the bottle of insecticide

made at the instance of the accused are sufficient to affirm his

guilt. On these submissions, he implored the Court to dismiss the

appeal.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and the record.

At the outset, we may note and observe that there has been

a blatant attempt by the prosecution in fabricating a story for

implicating the accused because the close relatives of the

deceased namely the first informant Prabhu Ram and his son

(10 of 15) [CRLAD-108/2018]

Kamalesh, who were admittedly not even present in the village at

the time of incident, posed as eyewitnesses of the incident in their

sworn testimony. This fallacious attempt of prosecution witnesses

however, did not sustain and the trial court rightly, discarded the

testimony of PW.4 Prabhu Ram and PW.1 Kamalesh who tried to

become eyewitnesses of the incident. We may note here that this

blatant falsehood in the evidence of Prabhu Ram (PW.4) and

Kamlesh (PW.1) was exposed in the testimony of Smt. Manju

(PW.2), mother of the victim who stated that her daughter Sunita

(PW.5) came crying and stated that her sister Mst. 'N' the victim

had been lifted and carried away by Bhajan Lal, Guttu and

Shankar Lal. On hearing this, Kamlesh and the victim's father

Prabhu Ram, Bhawani Shankar and Daulat Ram proceeded to the

place of incident. It is thus manifest that Prabhu Ram (PW.4) and

Kamlesh (PW.1) were not present at the spot and improved upon

their story and falsely tried to pose as eyewitnesses of the

incident. This attempt was made right at the inception i.e. while

filing the FIR (Ex.P/22). As the prosecution witnesses tried to cook

up a story even while filing the FIR, and since, all material

prosecution witnesses are close relatives of the victim, their

testimony cannot be trusted out right.

A very significant fact which comes out from the FIR

(Ex.P/22) is that in this report filed by the father of the victim,

there is no allegation that the witness Sushri Sunita (PW.5) was

accompanying the victim when she went to the field for attending

to the call of nature or that Sunita and Smt. Manju were amongst

the persons who saw the accused running away from the crime

(11 of 15) [CRLAD-108/2018]

scene after committing the offence. Hence, the claim of Manju

(PW.2) and Sunita (PW.5) that they saw the accused running away

from the field of Abdul Habab would also be required to be viewed

with suspicion.

The witness Smt. Manju (PW.2), in cross-examination was

confronted with her previous police statement (Ex.D/2) and

wholesale contradictions and improvements in statement were

elicited by the defence. Sunita (PW.5) stated in her evidence that

she and the victim proceeded together to the field of Iliyas for

making cow-dung cakes. The three accused came there and

forcibly carried away her sister, the victim. If Sunita had actually

witnessed this event, then she undoubtedly would have stated so

to her father Shri Prabhu Ram and he would be expected to

incorporate this important piece of information in the written

report (Ex.P/11). However this important event which Sunita

claims to have witnessed, was not incorporated in the FIR

(Ex.P/22) and hence, the evidence of Sunita also comes under a

cloud of doubt. While testifying on oath, Sunita (PW.5) claimed

that Bhajan Lal was armed with a knife and Shankar Lal was

carrying the insecticide bottle. She was confronted with her

previous police statement (Ex.D/5) wherein, there is a total

omission of these allegations. Hence, we have no hesitation in

holding that the claim made by Sunita that she had accompanied

the victim Mst. 'N' to the field of Iliyas and that she saw the three

accused carrying away the girl from the place of incident is totally

false and concocted. It can safely be concluded that this witness

too did not see any part of the alleged incident. Her self-claimed

(12 of 15) [CRLAD-108/2018]

status as an eyewitness of the incident is totally unacceptable.

Hence, the finding recorded by the trial court that none of the

family members of the victim i.e., PW.2 Smt. Manju, PW.4 Prabhu

Ram, PW.1 Kamlesh and PW.5 Sunita had actually seen the

accused persons assaulting the deceased is perfectly justified. This

fact is further fortified from the statement of Rajesh Kumar,

Constable (PW.8) who was posted at the Police Station Bhaleri.

The witness stated that he left the Police Station Bhaleri in a

private jeep at 9:30 AM and picked up an injured girl from the

place of incident and took her to the hospital. Arvind Kumar, SHO

and Jaipal, ASI accompanied him. When they reached the place of

incident, only 1-2 persons were standing at some distance from

the girl. If at all, the family members were present at the crime

scene as claimed by them in their sworn testimony, then, they

would not stand by as mute spectators and would be expected to

take urgent steps to provide medical aid to the victim. They would

also be required to disclose the details of incident seen by them to

the police authorities. Apparently thus, none of the family

members was present when the police team reached the place of

incident. This important fact as elicited in the evidence of

Constable Rajesh Kumar completely demolishes the stand of the

material prosecution witnesses, the family members of the

deceased that they either saw the victim being assaulted and

thereafter, the accused ran away from the crime scene.

The trial court, placed reliance on two circumstances for

convicting the accused appellant, the first being that he, along

with the other accused persons (since acquitted) was seen running

(13 of 15) [CRLAD-108/2018]

away from the place of incident by the witnesses Smt. Manju and

Sunita. However, this version of the two witnesses is ex facie

unbelievable. The trial court discarded the evidence of the

prosecution witnesses for the same allegation qua the acquitted

accused and at the same time, reliance was placed upon the same

evidence while convicting the accused appellant. This approach of

the trial court is arbitrary and totally unacceptable. The other

material piece of evidence, the trial court relied upon was in form

of the recovery of the knife and the bottle of insecticide. Law is

well settled that merely on the basis of the sole circumstance of

recovery of blood stained weapon, conviction of an accused cannot

be recorded or affirmed for the charge of murder punishable under

Section 302 IPC. The evidence of incriminating recoveries made at

the instance of accused can be used only to corroborate

substantive evidence mandatorily required to establish the guilt of

the accused. However, recoveries in isolation cannot be used as a

circumstance to record guilt of the accused for the charge of

murder. In this regard, reference may be had to the Supreme

Court Judgment in the case of Mustkeem vs State of

Rajasthan, AIR 2011 SC 2769.

It may be stated here that the trial court relied upon the FSL

report (Ex.C/1) so as to hold that the knife recovered at the

instance of the accused and the blood stained jumper of the

deceased and so also the blood stained soil collected from the

spot, all gave positive test for 'A' group blood which the accused

failed to explain. However, for accepting the FSL report and the

evidence of recoveries as being incriminating, the prosecution

(14 of 15) [CRLAD-108/2018]

would have to lead complete and unbroken chain of link evidence

to establish safekeeping of the article packets right from the date

of seizure till the same were deposited at the FSL. In this

reference, it would be profitable to refer to the evidence of the

Malkhana Incharge of the Police Station Bhaleri Ct. Rajendra Singh

(PW.9). The constable stated in his evidence that four sealed

packets of this case were handed over to the Ct. Shri Ram for

depositing the same at the FSL, Jodhpur. Some objections were

noted by the FSL, Jodhpur and Shri Ram, FC brought back the

packets and deposited the same with him on 19.07.2013. The

objections were cured and the packets were resent to the FSL on

25.07.2013. It may be stated here that the nature of objections

pointed out by FSL were not disclosed by the prosecution. In

cross-examination, Rajendra Singh (PW.9) admitted that there is

no corresponding entry of 25.07.2013 in the Malkhana register

regarding re-transmission of the sample packets to the FSL.

Apparently thus, the link evidence mandatorily required to prove

the sanctity of the sample packets has been breached and as a

consequence, the FSL report loses significance and cannot be read

in evidence.

Resultantly, we are of the opinion that the prosecution failed

to lead convincing and clinching evidence so as to bring home the

guilt of the accused appellant. The impugned judgment dated

03.04.2018 passed by learned Special Judge, SC/ST (Prevention

of Atrocities) Act Cases, Churu in Special Sessions Case

No.43/2013 does not stand to scrutiny. Hence, the same is

quashed and set aside. The accused appellant is acquitted of the

(15 of 15) [CRLAD-108/2018]

charges. He is in custody and shall be released from prison

forthwith, if not wanted in any other case.

The appeal is allowed in these terms.

However, keeping in view the provisions of Section 437-A

Cr.P.C., the accused appellant is directed to furnish a personal

bond in the sum of Rs.40,000/- and a surety bond in the like

amount before the learned trial court, which shall be effective for

a period of six months to the effect that in the event of filing of a

Special Leave Petition against the present judgment on receipt of

notice thereof, the appellant shall appear before the Supreme

Court.

Record be returned to the trial court forthwith.

                                   (KULDEEP MATHUR),J                                            (SANDEEP MEHTA),J
                                    Sudhir Asopa/-









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