Rajasthan High Court
State Of Raj vs Gajanand on 30 January, 2024
Author: Bhuwan Goyal
Bench: Pankaj Bhandari, Bhuwan Goyal
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Criminal Appeal No. 530/2003
State of Rajasthan through PP.
----Appellant
Versus
Gajanand S/o Gopal, R/o Mohanpura, Police Station Danta
Ramgarh, District Sikar, Rajasthan.
----Respondent
For Appellant(s) : Mr. Javed Choudhary, Add. G.A.
For Respondent(s) : Mr. Sultan Singh Kuri, Adv.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
JUDGMENT RESERVED ON : 22/01/2024
DATE OF PRONOUNCEMENT : 30/01/2024
(PER HON'BLE BHUWAN GOYAL J.)
1. The appellant-State of Rajasthan has preferred instant
appeal under Section 378 of the Code of Criminal Procedure, 1973
against impugned Judgment and Order dated 24.10.2002 passed
by the Additional Sessions Judge (Fast Track), Sikar in Sessions
Case No. 36/2001 titled as "State of Rajasthan vs. Gajanand",
whereby accused-respondent - Gajanand was acquitted of
offences under Sections 302 & 201 of I.P.C.
2. Brief facts relevant and essential for disposal of present
appeal are that on 24.11.2000, complainant - Suwalal (P.W. 2)
submitted the typed report (Ex.P/2) before the S.H.O. Police
Station Sadar, Sikar, wherein it was alleged that his younger
brother Hari Prasad was running a small shop in their village but
on account of less margin, his younger brother Hari Prasad was in
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search of another employment. On 12.11.2000, Gajanand came
to their house in his presence and told his brother Hari Prasad in
his presence that he was having contact with big contractors at
Sikar and he will get him permanently employed with them, for
which you will have to come to Sikar with him tomorrow on
13.11.2000, upon which, his brother Hari Prasad agreed. On
13.11.2000, his brother Hari Prasad with said Gajanand departed
for Sikar. Hari Prasad told him and other family members that he
will return by evening after purchasing household items and goods
for the shop. But his brother did not return to village for 3-4
days, upon which, he and his family members started worried
about Hari Prasad and they searched Hari Prasad at Sikar and in
their relatives but did not find his whereabouts. The marriage of
his maternal cousin Sanwarmal son of Premchand was fixed on
18.11.2000 and the marriage of his niece Ms. Geeta was
scheduled at his house on 21st & 22nd November, 2000. At that
time also, Hari Prasad did not return to the house, so they got
worried. On 23.11.2000, one Satyanarayan Master informed that
a news was published under the heading "Naale me sada gala
shav mila" in the Rajasthan Patrika on 20.11.2000, upon which,
he read said news and saw photograph and description then, he
felt like his brother, whereupon, he along with Ramswaroop,
Suresh Kumar, Puranmal Jangid, Premchand of their village came
at Police Station Sadar, Sikar and saw the photographs and
clothes, which were of his brother Hari Prasad. Further, it was
alleged that said Gajanand who was "Dharam Bhaai" of his brother
Hari Prasad, used to visit house of Hari Prasad. Said Gajanand was
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having illicit relations with wife of Hari Prasad, namely, Chhoti Devi
and on account of said illicit relations, Gajanand with the help of
his companions murdered his brother Hari Prasad and threw his
dead body in the drainage at Nani Ki Beed in order to conceal the
criminal act of his murder. Further, it was alleged that strict legal
action may be taken against said Gajanand and his companions,
who were involved in this murder.
3. On the basis of said report, an F.I.R. No.343/2000 (Ex.P/3)
came to be registered at the Police Station Sadar, Sikar for the
offences under Sections 302 & 201 of I.P.C. and investigation was
commenced. After conclusion of investigation, police submitted
charge-sheet against accused-respondent for the offences under
Sections 302 & 201 of I.P.C. before the court of Chief Judicial
Magistrate, Sikar, who took cognizance of aforesaid offences
against accused-respondent and committed the case to the Court
of Sessions, from where it was transferred to the court of
Additional Sessions Judge (Fast Track), Sikar (hereinafter referred
to as "learned trial court").
4. Learned trial court framed charges against accused-
respondent for the offences under Sections 302 & 201 of I.P.C.
The accused-respondent pleaded not guilty and claimed trial. The
prosecution examined as many as 23 witnesses and exhibited
Ex.P/1 to Ex.P/31 documents to prove its case. After conclusion
of the prosecution evidence, accused-respondent was examined
under Section 313 of Cr.P.C. and was confronted with the
circumstances appearing against him in the prosecution case,
which he denied and claimed that prosecution evidence was false,
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he was innocent and had been falsely implicated in the case. The
accused-respondent did not produce any oral evidence but got
exhibited Ex.D/1 to Ex.D/5 documents in his defence.
5. Learned trial court, thereafter, proceeded to hear the
arguments of the Public Prosecutor and the defence counsel,
appreciated evidence available on record and delivered impugned
judgment dated 24.10.2002, whereby accused-respondent was
acquitted of charges levelled against him. Aggrieved with the
same, present appeal has been filed by the appellant - State of
Rajasthan before this Court.
6. Heard learned counsel for the parties.
7. Learned Additional Government Advocate appearing for the
appellant - State has submitted that prosecution has produced
cogent evidence and proved its case against accused-respondent
beyond reasonable doubt. He has also submitted that wife of the
deceased Hari Prasad, namely, Chhoti Devi was having illicit
relations with accused-respondent Gajanand, in which Hari Prasad
was a hurdle, therefore, accused-respondent Gajanand in the
garb of getting him permanently employed at Sikar, took deceased
Hari Prasad with him and committed his murder by strangulation
and thereafter, threw dead body of Hari Prasad in the drainage in
order to cause disappearance of evidence of his murder, which has
been established from testimony of P.W. 2 - Suwalal. But despite
that the trial court without appreciating the evidence on record,
wrongly acquitted accused-respondent for the offence alleged
against him. Therefore, he has prayed that appeal preferred by
the appellant - State may be allowed and accused-respondent -
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Gajanand may be convicted and sentenced for the offences
alleged against him.
8. Per contra, learned counsel appearing for the accused-
respondent while supporting the judgment passed by the trial
court, has submitted that entire prosecution case rests upon
circumstantial evidence and there is no eye-witness of alleged
incident in the present case. The prosecution has failed to
complete the chain of circumstances so as to prove that deceased
was murdered by the accused-respondent and none else. Learned
counsel for the accused-respondent has also submitted that
prosecution witnesses viz. P.W. 6 - Puranmal, P.W. 7 - Sohanlal,
P.W. 8 - Bhawani Shanker, P.W. 9 - Vimal Kumar, P.W. 18 -
Vasudev and P.W. 21 - Prabhu Dayal have not supported the
prosecution story and declared hostile. Learned counsel for the
accused-respondent has further submitted that from the evidence
on record, it has not been established that accused-respondent
came to the house of deceased on 12.11.2000 and thereafter,
took deceased with him for getting him employed at Sikar on
13.11.2000. The prosecution story that deceased Hari Prasad was
last seen in the company of the accused-respondent too has not
been proved. Learned counsel for the accused-respondent has
further submitted that the prosecution has also failed to prove
that accused-respondent was having illicit relations with the wife
of the deceased, namely, Chhoti Devi. Neither any recovery was
effected from accused-respondent nor his presence was proved at
the place of incident because no mobile tower location of the
accused-respondent has been produced on record by the
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prosecution. Learned counsel for the accused-respondent has
further submitted that there is delay in recording police
statements of witnesses Chhoti Devi and others and no
explanation in this regard has been put forward by the
prosecution. He has also submitted that there is delay in lodging
the F.I.R. as report regarding incident was submitted much days
after the incident and no explanation for such delay has been
furnished by the prosecution. He has, thus, contended that the
trial court has rightly appreciated material as well as evidence
available on record and has not committed any error in passing
the judgment and order of acquittal impugned herein. Learned
counsel has, therefore, prayed that present appeal filed by the
appellant-State may be dismissed.
9. We have given our thoughtful consideration to the arguments
advanced at the Bar and have gone through impugned judgment
as well as record of the case and have minutely sifted through
evidence available on record.
10. The law with regard to conviction on the basis of
circumstantial evidence has been very well crystalised in the
judgment of Hon'ble Apex Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra reported in
(1984) 4 SCC 116. A close analysis of said decision would show
that following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(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
only with the hypothesis of the guilt of the accused,
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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."
11. In the light of these guiding principles, let us examine the
facts in the present case.
12. In the instant case, as per prosecution story in F.I.R. as well
as statement of P.W. 2 - Suwalal, accused-respondent came to the
house of deceased Hari Prasad on 12.11.2000 and at that time,
he, Chhoti Devi and Suresh were present there but the above fact
has not been established from the statements of P.W. 4 Suresh,
who is brother of the deceased and P.W. 14 - Chhoti Devi, who is
wife of the deceased because both these witnesses in their
statements have not stated that accused-respondent came to their
house on 12.11.2000. Thus, from the evidence of above
witnesses, it has not been established beyond reasonable doubt
that accused-respondent came to the house of deceased on
12.11.2000.
13. So far as prosecution story that accused-respondent had
taken deceased with him at Sikar to get him employed there on
13.11.2000 is concerned, on perusal of the evidence on record, it
reveals that deceased was physically disabled and was unable to
do any heavy work due to paralysis. P.W. 2 - Suwalal in his cross-
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examination has admitted that deceased Hari Prasad had paralysis
in his right hand, right leg and complete right side, which was
there for about last 8-10 years and he could not pick up bundle
and matchbox with his right hand because fingers of his right hand
were not working. P.W. 14 - Chhoti Devi (wife of the deceased)
also admitted in her examination-in-chief that her husband could
not do any heavy work due to paralysis and he was not able to do
heavy work being disabled. Thus, from the evidence of above
witnesses, in our considered opinion, the prosecution story that
accused-respondent took deceased Hari Prasad with him to Sikar
on 13.11.2000 in order to get him employed does not appear to
be believable. This circumstance is, thus, not established.
14. So far as prosecution story that deceased Hari Prasad was
last seen with accused-respondent at bus stand is concerned,
prosecution in order to prove said fact has produced P.W. 3 -
Satyanarayan and P.W. 5 - Premchand. But the statement made
by both above witnesses has not been corroborated from the
evidence of P.W. 7 - Sohanlal & P.W. 8 - Bhawani Shanker, who are
stated to be conductor and driver of the bus, in which deceased
Hari Prasad is stated to have travelled with accused-respondent
because P.W. 7 - Sohanlal and P.W. 8 - Bhawani Shanker have not
stated that accused-respondent and deceased Hari Prasad
travelled in their bus on 13.11.2000. P.W. 7 - Sohanlal in his
cross-examination has stated that accused-respondent Gajanand
did not come with Hari Prasad on 13.11.2000 and that Gajanand
did not travel to Sikar in their bus on that day. P.W. 8 - Bhawani
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Shanker in his cross-examination has admitted that he did not
notice Gajanand sitting in his bus.
15. It is pertinent to note that above-said fact is also not
mentioned in the police statements of P.W. 3 - Satyanarayan and
P.W. 5 - Premchand (Ex.D/2 & Ex.D/4). It is also pertinent to note
that police statements of both these witnesses have been
recorded after many days of the incident.
16. In the case of Ganesh Bhavan Patel & Anr. vs. State of
Maharashtra reported in 1979 AIR 135, the Hon'ble Supreme
Court has observed as under :-
"In the instant case, some of the main reasons
given by the trial court could not be effectively and
rationally dispelled. One of such reasons, which cast
a cloud on the credibility of the prosecution
evidence, was that there was inordinate delay of
several hours on the part of the police in recording
the statement which was treated as F.I.R. and
further undue delay in recording the statements of
the alleged eye-witnesses by the investigating
officer, and no credible explanation of these delays
was forthcoming. Although these witnesses were or
could be available for examination when the
investigating officer visited the scene of occurrence
or soon thereafter, their statements were recorded
on the following day.
Such delay may not, by themselves, amount to a
serious infirmity in the prosecution case. But they
may assume such a character if there are
circumstances to suggest that the investigator was
deliberately marking time with a view to decide
about the shape to be given to the case and the
eye-witnesses to be introduced. A catena of
circumstances which lend such sinister significance
to these delays, exists in the instant case, which
inevitably lead to the conclusion that the
prosecution story was conceived and constructed
after a good deal of deliberation, in a shady setting
highly redolent of doubt and suspicion."
17. Applying the ratio of law laid down in the case of
Ganesh Bhavan Patel (supra), in the case in hand, it is an
admitted position that police statements of P.W. 3 - Satyanarayan
and P.W. 5 - Premchand i.e. Ex.D/2 & Ex.D/4 were recorded after
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1 month & 11 days and 11 days of alleged incident, respectively
and there is no evidence on record to show that after alleged
incident, both of them had immediately left the village and were
not available for recording their statements, therefore, in view of
the proposition of law laid down by the Hon'ble Supreme Court,
statements of both above witnesses do not appear to be worth
credence. Thus, from the evidence of above witnesses, neither
the prosecution story regarding last seen evidence has been
established nor chain of circumstances is complete.
18. So far as the prosecution story that deceased Hari Prasad
with accused-respondent went to the shop of Vimal Kumar and
purchased the goods is concerned, it is pertinent to mention here
that P.W. 9 - Vimal Kumar in his examination-in-chief has
categorically stated that Hari Prasad was having paralysis and
when Hari Prasad had come to purchase goods from his shop, at
that time, no person came with him. From the evidence of this
witness also, the chain of prosecution story is not complete.
19. Now adverting to the question of motive of the accused-
respondent, as per prosecution story, accused-respondent was
having illicit relations with wife of the deceased Chhoti Devi, in
which deceased was a hurdle, therefore, accused-respondent
murdered deceased Hari Prasad. In this regard, on perusal of the
statement of P.W. 14 - Chhoti Devi, who is wife of the deceased,
she in her examination-in-chief has stated that once Gajanand
tried to molest him, then quarrel took place between her husband
and Gajanand but Gajanand apologized for the same and
thereafter, Gajanand used to visit their house. In our opinion, if
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wife of the deceased Chhoti Devi would have illicit relations with
accused-respondent, then her husband and other members of in-
laws family must have objected to accused Gajanand visiting their
house. Thus, the prosecution has failed to establish the motive of
the accused-respondent to murder the deceased.
20. It would be pertinent to mention here that neither any
recovery has been effected from accused-respondent nor his
mobile tower location has been produced on record by the
prosecution to connect him with alleged offence.
21. So far as delay in F.I.R. is concerned, in the case in hand, the
incident is stated to have taken place 13.11.2000, whereas, F.I.R.
has been got instituted as late as on 24.11.2000 i.e. after 11 days
of the incident and no explanation for said delay has been
furnished by the prosecution, which enables to draw an adverse
inference against the prosecution story.
22. In view of the above discussion, we are of the considered
opinion that the trial court has not erred in passing the judgment
and order dated 24.10.2002 acquitting accused-respondent for the
offences alleged in the present case.
23. Accordingly, present criminal appeal filed by the appellant-
State of Rajasthan is dismissed and the judgment and order dated
24.10.2002 passed by the trial court is upheld.
24. The record of the learned trial court be sent back forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
INDER/
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