Satish Sharma @ Seeto S/O Chhagan ... vs State Of Rajasthan Through Pp
2023 Latest Caselaw 876 Raj/2

[2023/RJJP/000194]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     D.B. Criminal Appeal No. 382/2018

Satish Sharma @ Seeto S/o Chhagan Lal R/o Chatikana Mohallan
Karauli PS Kotwali Karauli Dist. Karauli Raj. (Presently Confined
In Jail At Karauli)
                                                                      ----Appellant
                                       Versus
State Of Rajasthan Through PP, Raj.
                                                                    ----Respondent

For Appellant(s) : Mr. Pankaj Gupta with Mr. Saurabh Yadav, Mr. Naman Yadav, Mr. Hemang Singh For Respondent(s) : Ms. Alka Bhatnagar, AGA Mr. D.K. Dixit

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

JUDGMENT RESERVED ON : 11/01/2023 DATE OF PRONOUNCEMENT : 27/01/2023

(PER HON. BIRENDRA KUMAR, J.)

1. The sole appellant Satish Sharma @ Seeto faced trial before

the learned Special Judge (SC & ST), Karauli in Sessions Case No.

20/2015 arising out of FIR No. 648/2014 registered with Hindaun

Police Station. Though charges were for offences under Section 3

(2) (v) of the SC/ST Prevention of Atrocities Act also however the

learned trial Judge has recorded conviction under Section 302 IPC

only and awarded life imprisonment along with fine of Rs.

10,000/- by judgment and order dated 25.9.2018. In default of

payment of fine, 6 months simple imprisonment has been ordered.

[2023/RJJP/000194] (2 of 11) [CRLAD-382/2018]

The judgment of conviction and order of sentence are under

challenge in this appeal.

2. The prosecution case as disclosed in the written report

submitted to Hindaun Police Station by Bhoor Singh (PW/4) is that

his daughter Kamla was a widow and after the death of her

husband, she was living along with her 9 years old son Raj Kumar

(PW/10) at Indrapura in her own house. Her elder sister Smt.

Laxmi (PW/7) was also residing in the same locality in a different

house. In the morning of 13.9.2014, the appellant called the

informant on mobile stating that Kamla is not picking up her

phone. The appellant wanted to know from Kamla whether

Rajkumar went to school or not. Thereafter, the informant phoned

to Kamla. Someone picked up the phone and informed that

murder of Kamla has been committed. Thereafter, the informant

and his wife Ginni (PW/12) went to the house of Kamla. They saw

a huge crowd there. Kamla was lying dead in her house. Her

neck was covered with Chunni (wrapper). There was signs of

pressure on the neck of Kamla. Outside the room, a charpai

(coat) was also there on which some country-made liquor,

cigarette and Guthkha were also found. A Godrej Almirah of

Kamla was also found open, her clothes were scattered.

According to the informant, some unknown person might have

entered into the house of Kamla and committed her murder by

throttling. After registration of the police case, investigation was

taken up by PW/21 Ramdayal. Ramdayal had performed only

some formalities regarding seizure of different articles found at

the place of incident. Dead body was sent for post mortem

[2023/RJJP/000194] (3 of 11) [CRLAD-382/2018]

examination etc. PW/21 Ramdayal had seized a cap near the

dead body of Kamla which was usually used by the Muslim

members of the society. Thereafter, investigation was taken up by

PW/20 Kailash on 15.9.2014. On 19.9.2014, Kailash recorded

statements under Section 161 Cr.P.C of the parents of the

deceased as well as of Master Raj Kumar, the son of deceased.

Raj Kumar has been examined as PW/10. Till then, no suspicion

was there against anyone. For the first time on 3.3.2015, after

delay of 6 months, statements of PW/6 Ashish Meena, PW/7

Laxmi, PW/8 Seema, PW/13 Sridevi were recorded under Section

161 Cr.P.C. and it started raising suspicion against the appellant to

be involved in the murder of Kamla. It is worth to mention here

that it has come in the prosecution evidence that Kamla had five

sisters besides three brothers. Out of the five sisters, Kamla and

Laxmi were living in the same locality. Seema was residing with

Laxmi and Sridevi used to visit Laxmi off and on. Laxmi was

already a married lady and after differences with her husband, she

was living with PW/6 -Ashish Meena (as per PW/6) in the

relationships of marriage.

3. The prosecution produced altogether 28 witnesses. PW/1 Ali

Mohammad, PW/2 Yakub Ali, PW/9 Mahroom, PW/11 Smt. Sammo

alias Sameem, PW/15 Iqbal and PW/19 Kesanti have been

declared hostile by the prosecution.

It is worth to mention that plurality of the evidence is not the

requirement of law to prove a criminal charge. However, if the

prosecution produces a number of hostile witnesses without

ascertaining that these witnesses are not going to support the

[2023/RJJP/000194] (4 of 11) [CRLAD-382/2018]

prosecution case, non support of prosecution case by these

witnesses would certainly weaken the prosecution case.

4. PW/3 Rajesh Kumar, PW/14 Girdhari Singh PW/17 Rambarosi

PW/18 Mahesh, PW/22 Montu Gupta, PW/23 Sanjeevanand Sinha

PW/24 Radharaman PW/25 Pooran Singh and PW/26 Vasu Kapil

are formal witnesses as they either have registered the FIR or only

submitted charge-sheet in the case without making any

investigation or have proved some exhibited documents.

PW/16 Dr. Deepchand Koli had performed post mortem

examination on the dead body of Kamla and he has found

homicidal death by strangulation. PW/20 Kailash, PW/21

Ramdayal, PW/27 Man Singh Chaudhary and PW/28 Shiv Bhagwan

are Investigating Officers of the case who partly investigated the

case on different time period.

5. Till submission of the charge-sheet, the prosecution case was

based on circumstantial evidence as per admission of the

Investigating Officer.

PW/4 Bhoor Singh and PW/12 Ginni are parents of deceased

Kamla. PW/5 Rajveer is witness of inquest as well as Devar of

deceased Kamla. PW/7 Smt. Laxmi, PW/8 Smt. Seema and

PW/13 Sri Devi are full sisters of Kamla. PW/6 Ashish Meena is

paramour of PW/7 Smt. Laxmi. and PW/10 Raj Kumar is minor son

of deceased Kamla. As such, all these witnesses are interested

and partisan witnesses. They have improved the prosecution case

for the first time in the court as would be evident from their

testimony when they were confronted with their police

[2023/RJJP/000194] (5 of 11) [CRLAD-382/2018]

statements, therefore, testimony of these witnesses requires to be

scrutinized with great care and caution.

6. Mr. Pankaj Gupta, learned counsel for the appellant contends

that the prosecution case is based on circumstantial evidence.

However, no circumstance relied upon by the prosecution stands

proved nor the chain of circumstances are complete. Rather, there

is prosecution evidence that indicates that the murder of Kamla

might have been committed by some other person for some

different reason. Learned counsel contends that when the

prosecution case rests purely on circumstantial evidence, motive

undoubtedly plays an important part in order to tilt the scale

against the accused. Reliance has been placed on the judgment of

the Hon'ble Supreme Court in State (Delhi Administration) vs.

Shri Gulzari Lal Tandon reported in AIR 1979 SC 1382.

Learned counsel has placed reliance on the judgment of Hon'ble

Supreme Court in Harbeer Singh vs Sheeshpal & Ors.

reported in (2016) Cr.L.R. (SC) 1131 for his submission that

inordinate delay in recording the statements of the prosecution

witnesses under Section 161 Cr.P.C especially when the witnesses

are interested one creates doubt on the trustworthiness of the

prosecution case.

7. Ms. Alka Bhatnagar, AGA would contend that there is

clinching evidence of motive of the appellant to commit the

murder as well as of last seen when the appellant was seen

entering into the house of Kamla in the night and on the same

night, her murder was committed. Learned counsel submits that

PW/10, the son of the deceased who was present at the time of

[2023/RJJP/000194] (6 of 11) [CRLAD-382/2018]

incident has given description of the incident as eye-witness and

Raj Kumar further stated that due to fear, he could not disclose

the incident to anyone earlier. The learned trial Judge has

minutely examined the evidences, therefore, the impugned

judgment requires no interference by this Court.

8. It is worth to note that it is not the prosecution case that at

any point of the investigation of the case done by different police

officials, the police was hostile to the prosecution. Therefore, the

evidence collected by the police and produced before the Court

cannot be overlooked to accept the improved version of the

prosecution witnesses of the incident for the first time in the

witness box especially when they were confronted with the police

statements. The police recorded statements of three material

witnesses, i.e., the parents of the deceased and the child of the

deceased within three days of incident i.e. on 16.9.2014.

9. PW/6 Ashish Meena has alleged that the appellant had

motive to commit the murder of Kamla for the reason that

appellant was insisting Kamla to sell out her house and to

purchase another house at a different place. The parents and

sisters of Kamla advised her not to agree with these proposals. It

is worth to mention here that the parents and sisters of Kamla

were examined as prosecution witnesses but they have not stated

that Kamla ever informed them that the appellant was

pressurizing to sell out the house to purchase at some other place.

The aforesaid motive was disclosed for the first time in the witness

box without making such statement before the Police.

[2023/RJJP/000194] (7 of 11) [CRLAD-382/2018]

Since Kamla was not having good relation with PW/6 Ashish

Meena or her sister Laxmi for some family dispute, Laxmi and

Ashish had some reason and motive to speak against the

appellant who had cool relations with Kamla. PW/1 Ali Mohammad

has stated that relationship amongst the three sisters was

estranged. Even the mother Ginny had deposed that since last

few months, Laxmi was not behaving well with Kamla. Even PW/6

Ashish Meena has admitted that they were not in talking terms or

visiting term with Kamla. In the aforesaid circumstance, the sole

testimony of PW/6 made for the first time in the court that the

appellant had motive to commit murder of Kamla is not

acceptable.

There is prosecution evidence that Kamla had intimate

relations with Mukesh and Mukesh used to visit the house of

Kamla and some times Mukesh and Kamla were seen on the same

bike. The aforesaid has come in the evidence of mother PW/12.

The appellant used to forbade Kamla not to have relationship with

Mukesh. In the aforesaid circumstance, it cannot be completely

ruled out that Mukesh had no grudge against Kamla as after

relationship with the appellant, Kamla had started making distance

from Mukesh which would be evident from the prosecution

evidence itself.

PW/7 Smt. Laxmi is not a hostile witness. She has admitted

that Rafiq, the neighbour of Kamla had intimate relations with

Kamla. A cap used by the Muslim community was found near the

dead body. These materials are against the prosecution case that

only appellant would have committed the murder.

[2023/RJJP/000194] (8 of 11) [CRLAD-382/2018]

10. PW/7 Smt. Laxmi for the first time deposed in court that she

along with Seema and Shridevi were brushing their teeth at about

8-9 PM, they saw that the appellant was entering into the house of

Kamla and on the same night, murder of Kamla was committed.

Seema has not supported these facts. Seema is not a hostile

witness, therefore, the prosecution evidence is controverting itself

on the circumstance of `last seen'. Moreover, for the first time in

the court, the prosecution asserted about the last seen.

PW/7 Smt. Laxmi has admitted that the deceased had

intimate relations with neighbour Rafiq also. There is prosecution

evidence that the appellant had cozy relations with Kamla till her

death. The appellant used to visit the house of Kamla off and on

and was helping Kamla. PW/12 the mother of Kamla admitted

that Kamla had relationship with Mukesh also who surreptitiously

used to visit the house of Kamla. Kamla had acquaintance with

Mukesh since she was working in the hospital in the past. Some

other relatives had gone to the extent that intimacy between the

appellant and Kamla was so deep that Kamla used to open the

doors of the house for appellant only and not for anyone else.

Kamla was taking special care for food of the appellant. Moreover,

the manner of incident indicates that a Godrej almirah was found

opened. Some of the household articles especially the ornaments

were found removed, therefore, it cannot be irresistibly concluded

that these facts are pointer against the appellant who was in cool

relationship with Kamla.

11. PW/10 Raj Kumar in his examination-in-chief had not

supported the prosecution case. Prosecution declared him hostile.

[2023/RJJP/000194] (9 of 11) [CRLAD-382/2018]

In his statement under Section 161 Cr.P.C (Ex.P/19) also he had

not levelled any allegation against the appellant. Therefore, there

was no reason for the prosecution to declare him hostile but the

prosecution declared the witness as hostile and in the cross-

examination by the prosecution, for the first time, the witness has

stated that the appellant had committed murder of his mother.

Cross-examination of the witness was deferred for some other

date and on that day, PW/10 Raj Kumar appeared as a tutored

witness and without any specific question put by the appellant

side, he narrated the entire story that he had seen the appellant

committing murder of his mother. Since the evidence coming in

cross-examination is inconsistent with the prosecution case and

suffers from exaggeration, the testimony of this witness cannot be

accepted and should be rejected as tutored statement especially

when the witness had not stated anything in his examination- in-

chief that he had seen the appellant committing the murder. The

Investigating Officer examined as prosecution witness stated that

on the conclusion of the investigation, they found a case of

circumstantial evidence. There was no eye-witness of the

incident.

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

circumstantial evidence is well settled that the prosecution must

prove each of the circumstances relied upon and the proved

circumstance must form a chain not only pointing towards guilt of

the accused rather excluding any hypothesis of innocence of the

accused. Moreover, the suspicion howsoever strong may be

cannot take the place of proof.

[2023/RJJP/000194] (10 of 11) [CRLAD-382/2018]

13. On appreciation of evidence available on record, it emerges

that the prosecution had failed to prove that appellant had any

motive to commit the murder rather, only the appellant had

motive. The prosecution witnesses have admitted that the

deceased had relationship with Mukesh also, prior to developing

relations with the appellant, hence Mukesh had also some

grudges. The prosecution witnesses for the first time developed

"last seen" evidence in court which was not before the police.

Moreover, the last seen statement was not acceptable for the

reasons discussed above. There was no special grudge of the

appellant developed against Kamla rather till the last days of

Kamla, the appellant was found helping the family of Kamla.

14. The learned trial Judge failed to appreciate that the

prosecution has miserably failed to prove a chain of circumstances

against the appellant leading to only conclusion that the appellant

was involved in the murder of Kamla and no other reason was

there for her murder.

15. Therefore, in our view, the prosecution has failed to prove

the case beyond reasonable doubt against the appellant. Hence,

giving benefit of doubt, we acquit the appellant.

16. In the result, the impugned judgment and order of sentence

is hereby set aside and the appeal is allowed. Let the appellant

who is in custody be released forthwith in this case.

17. Pending application, if any, also stands disposed of.

18. Appellant is directed to furnish a personal bond of Rs.

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

[2023/RJJP/000194] (11 of 11) [CRLAD-382/2018]

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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