Rajasthan High Court - Jodhpur

Shankar vs State on 9 September, 2024

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (Db) No. 2/2018

Nathu Lal S/o Unkar, By Caste Gadri, aged 27 years R/o Jeewa
Ka Kheda, Thana Bigod, District Bhilwara. Presently Lodged In
Central Jail, Ajmer
----Appellant
Versus
The State Of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 153/2019
Shankar S/o Nanda Jat, Aged About 36 Years, B/c Jat, Resident
Of Jeewa Ka Kheda, Police Station Bigod, District Bhilwara (At
Present Lodged In Central Jail Ajmer)
----Appellant
Versus
State, Through Pp
----Respondent

For Appellant(s) : Mr. M.L. Bishnoi
Mr. Rajendra Charan
For Respondent(s) : Mr. Deepak Choudhary, GA-cum-AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN

Judgment

Reportable

Reserved on 23/08/2024
Pronounced on 09/09/2024
Per Dr. Pushpendra Singh Bhati, J:

1. The instant criminal appeals have been preferred under

Section 374(2) Cr.P.C. claiming, in sum and substance, the

following reliefs:

"It is therefore most humbly and respectfully prayed
that the appeal may kindly be allowed and the impugned
judgment and order dated 31.10.2017 passed by Learned
Additional Sessions Judge (Women Atrocities Cases),
Bhilwara (Rajasthan) in Sessions Case No.24/2012 may

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kindly be set aside and the appellant may kindly be
acquitted."

2. Since both the instant criminal appeals arise out of the

judgment of conviction and order of sentence dated 31.10.2017

passed by the learned Additional Sessions Judge (Women

Atrocities Cases), Bhilwara ('Trial Court'), in Sessions Case No.

24/2012 (State of Rajasthan Vs. Nathu Lal and Anr.), therefore,

the appeals have been heard together and are being decided by

this common judgment.

2.1. Vide the impugned judgment of conviction and order of

sentence, the accused-appellants have been convicted and

sentenced as below:

Conviction Sentence(s) Fine(s)
under
Section(s)
120-B IPC Life Imprisonment Rs.15,000/- (each of the
accused-appellants) in
default, each of the accused-
appellants to undergo further
6 months' S.I.
302 IPC Life Imprisonment Rs.15,000/- (each of the
accused-appellants) in
default, each of the accused-
appellants to undergo further
6 months' S.I.
365 IPC Seven Years R.I. Rs.5,000/- (each of the
accused-appellants) in
default, each of the accused-
appellants to undergo further
1 month's S.I.
397 IPC Seven Years R.I. -
201 IPC Three Years R.I. Rs.1,000/- (each of the
accused-appellants) in
default, each of the accused-
appellants to undergo further
15 days' S.I.

All the sentences were ordered to run concurrently, as per Section

428 Cr.P.C.

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3. As the pleaded facts and the record would reveal, on

10.08.2011, one Shankar Lal (complainant) lodged a Missing

Person's Report (Ex.P-4) before the Reserve Centre (Aarakshi

Kendra), Hameergarh since as per the complainant, the

whereabouts of his mother were not known since 05.08.2011. It

was stated in the said report that on 04.08.2011, the

complainant's mother Ramu Devi left the Village, namely, Siyaar

for Mangrop to purchase certain household articles around 11-

12:00 a.m., and while leaving, it was told by her that she will be

back by evening; however, when she did not return back, the

complainant went to Mangrop to search for his mother and such

search continued till the next day i.e. 05.08.2011; but since the

mother of the complainant still remained missing, the aforesaid

report was lodged.

3.1. As per the complainant, even after a lapse of two and a half

months, her mother could not be traced, and whereupon the

family members started search for the complainant's mother,

while carrying her photo, near the nearby villages. When the

family members reached Mangrop Ki Jhopadiya, they were

informed by one Mohan Teli (PW-1), upon seeing the photo of

complainant's mother, that the said Mohan Teli saw her two and a

half months ago going from Mangrop while sitting on a motorcycle

(in the centre). The said motorcycle, as informed by PW-1, was

being driven by Nathu Gadri (accused-appellant) and Shankar Jat

(accused-appellant) was also sitting on the said motorcycle,

behind the complainant's mother.

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3.2. On receiving such information, the complainant and his

family members went to Jeeva Ka Kheda, and on reaching there,

they contacted both the accused-appellants personally;

whereupon, the accused-appellants started abusing the members

of the complainant party, and while threatening them, the

accused-appellants told the complainant that they did not know

any person named Ramu Devi, and while abusing the members of

the complainant party, the accused-appellants asked them to

leave the village, failing which, the complainant party were

threatened of facing dire consequences.

3.3. As per the complainant, by the aforesaid conduct of the

accused-appellants, it was clear that his mother was induced by

the accused-appellants to accompany them and such inducement

was made by the accused-appellants either to commit illegal act

upon the complainant's mother, or to snatch the ornaments, which

she was wearing at the relevant time, and in pursuance of such

inducement, the accused-appellants kidnapped his mother. The

complainant further stated that at the relevant time, her mother

was also carrying a mobile phone.

3.4. Thus, in view of the aforesaid factual matrix, a case bearing

No.167/2011 (Ex.P-6) was registered on 20.10.2011 and the

investigation commenced accordingly. During investigation, the

accused-appellants were arrested and upon their information, the

dead body of the deceased was recovered from a river. After

investigation, the police filed a charge-sheet against the accused-

appellants for the offences under Sections 365, 201, 302, 394,

397 & 120-B IPC before the learned Judicial Magistrate (East),

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Bhilwara, but owing to the nature of offences involved, the matter

was committed to the learned Sessions Judge, Bhilwara, from

where the matter was transferred to the learned Trial Court.

3.5. The learned Trial Court framed the charges against the

accused-appellants 120-B IPC, 365, 394, 397, 302 & 201 IPC,

which were read over to the accused-appellants, and while

denying the said charges, the accused-appellants claimed to be

tried and the trial commenced accordingly before the learned Trial

Court.

3.6. During the course of trial, the prosecution produced 35

witnesses and exhibited 116 documents for examination; in

defence, 06 documents were exhibited; whereafter, the accused-

appellants were examined under Section 313 Cr.P.C., in which they

pleaded innocence and their false implication in the criminal case

in question.

3.7. Thereafter, upon hearing the contentions of both the parties

as well as considering the material and evidence placed on record,

the learned Trial Court, convicted and sentenced the accused-

appellants, as above, vide the impugned judgment of conviction

and order of sentence dated 31.10.2017, against which the

present appeals have been preferred by the accused-appellants.

4. Learned counsel for the accused-appellants submitted that

large number of contradictions were there in the version of the

prosecution witnesses and the witnesses who supported the

prosecution version are all close relatives of the deceased. It was

further submitted that no independent witness has supported the

prosecution story.

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4.1. It was also submitted that the motorcycle was recovered by

the police authority on the basis of the information given by the

accused-appellants but the said motorcycle was not registered in

name of the accused-appellants.

4.2. It was further submitted that the prosecution witnesses duly

identified the deceased's body on the basis of the clothes, worn by

her at the time of her death, and such statement clearly shows

contradiction, and that, owing to the condition of the dead body of

the deceased, that was recovered, no identification was possible;

furthermore, the police authority did not send the said body for

D.N.A. test.

4.3. It was further submitted that as per the prosecution's last

seen theory, when the complainant searched for the deceased,

one Mohan told the complainant that he saw the deceased with

the accused-appellants on a motorcycle about two and half

months ago, but the said Mohan is the real son-in-law of the

deceased, and the deceased was missing for such a long time, and

if the said Mohan had such information, then why he did not

inform the complainant as well concerned police authority, and

therefore, it is clear that there was no last seen evidence in the

case and the family member of the complainant narrated the said

story.

4.4. It was also submitted that the mobile phone of the deceased

was recovered by the police on the information given by the

accused-appellants, but there is nothing on record to show that

the said Mobile phone belonged to the deceased. It was further

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submitted that the Sim Card inserted in the said Mobile phone of

the deceased was not recovered by the police authorities.

4.5. It was also submitted that the police authority produced the

call details but without the certificate under Section 65-B of the

Indian Evidence Act, 1872. It was further submitted that no

recovery of the ornaments did take place from the accused-

appellants and as per the prosecution story, the accused-

appellants sold ornaments to one Shiv Prasad (PW.17) but the said

witness had turned hostile in this regard during the trial.

Therefore, the learned Trial Court was not justified in law in

convicting the accused-appellants vide the impugned judgment.

4.6. It was also submitted that the accused-appellants are behind

the bars for last about 13 years.

5. On the other hand, learned Public Prosecutor while opposing

the submissions made on behalf of the accused-appellants

submitted that the police recovered the body of the deceased on

the information given by the accused-appellants, and the recovery

witnesses (motbirs) have also supported the said recovery. It was

further submitted that the police authority recovered the receipt of

sale of ornaments to the other persons, as informed by the

accused-appellants under Section 27 of the Indian Evidence Act,

1872 and PW-17 Shiv Prasad, to whom the ornaments were sold,

has also supported the prosecution story, while stating that the

accused-appellants sold said ornaments to him.

5.1. It was also submitted that the family of the deceased clearly

stated about the clothes worn by the deceased at the relevant

time, when she went missing and the said clothes as well as the

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key were recovered from the body of the deceased, and therefore,

the family members of the deceased duly identified the body of

the deceased and thus, no DNA was required in this regard. It was

further submitted that the deceased was last seen on the

motorcycle by Mohan with the accused-appellants, and therefore,

the entire chain of evidence is clearly against the accused-

appellants.

5.2. It was also submitted that on the basis of the information

given by the accused-appellants, the police authority recovered

weapon (Axe) of murder, motorcycle and mobile phone used in the

crime in question, and the same clearly established the

prosecution story and therefore, the learned Trial Court has rightly

convicted the accused-appellants vide the impugned judgment.

6. Heard learned counsel for the parties as well as perused the

record of the case.

7. This Court observes that the allegations against the accused-

appellants are that they kidnapped the deceased and after taking

away the ornaments and other things belonging to the deceased,

they killed the deceased, and subsequently, trial was duly

conducted and the accused-appellants were convicted as above,

and rightly so, by the learned Trial Court vide the impugned

judgment.

8. This Court further observes that the Missing Person's Report

(MPR) was filed on 10.08.2011 by Shankar Lal (PW.5) son of

deceased, wherein it was stated that she had been missing since

05.08.2011, and even after a lapse of two and a half months, her

mother could not be traced, and accordingly, the complainant

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starting searching for his mother in the nearby villages. After a

lapse of two and a half months, from the date when the deceased

went missing, when the family members reached Mangrop Ki

Jhopadiya, they were informed by Mohan Teli (PW-1), upon seeing

the photo of complainant's mother, that he saw her two and a half

months ago going from Mangrop while sitting on the motorcycle

(in the centre). The said motorcycle, as informed, was being

driven by Nathu Gadri (accused-appellant) and Shankar Jat

(accused-appellant) was also sitting on the said motorcycle.

9. This Court also observes that there was no eye witness of

the crime in question and the entire prosecution story is sole

based on circumstantial evidence, and there is only one witness of

last seen i.e. PW.1- Mohan Teli in the present case.

9.1. As per the testimony of PW.1, he stated that he saw the

deceased going with the accused-appellants on the motorcycle

and the same was told by the said witness to complainant-

Shankar Lal. Further, the testimony of PW.5-Shankar Lal also

reveals that Mohan Teli (PW.1) informed the complainant that the

deceased was last seen with the accused-appellants two and half

months ago from the date such information was furnished by the

said witness to the complainant. He also stated that Mohan Teli

(PW.1) is his brother-in-law and deceased is the mother-in-law of

PW.1. He further stated he and PW.1 had gone to an Advocate for

preparation of a draft of the Missing Person's Report.

9.2. At this juncture, it is considered appropriate to reproduce the

relevant portions of the testimonies of the PW. 1-Mohan Teli and

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PW.5- Shankar Lal as recorded before the learned trial Court, as

hereunder:-

Testimony of PW.1:

"l"kiFk dFku fd;k fd nks lky igys dh ckr gS A eSa eaxjksi ds cl LVs.M
ij cSBk Fkk A ckgj ,d cts dh ckr gS A eSaus ogka ns[kk fd ukFkq yky
eksVjlkbZfdy pyk jgk Fkk o "kadjyky ihNs cSBk Fkk A jkeqckbzZ chp esa cSBh
Fkh A eksVjlkbZfdy ds uEcj ij eSaus /;ku ugha fn;k A
.....

Cross-examination of PW.1:

esjk llqjky fl;kj xkao esa gS A jkeqnsoh esjh lkl yxrh gS A esjk llqjky o esjk xkao 6&7 fdyksehVj dh nwjh ij gS A esjs lkys dk uke "kadjyky gS A "kadj ds firk dk uke dtksM gS A eSa llqjky vkrk tkrk gwaA eSa esjh lkl dks vPNh rjg ls igpkurk FkkA .....

esjh iRuh dk uke xhrk gS A eSa o esjh iRuh lkFk jgrs gS eqyfteku dks eSa igys ls ugha tkurk Fkk A esjh eqyfteku dh dksbZ f"kuk[r ugha djkbZ Fkkh A . . . . . ;g lgh gS fd yknwyky rsyh jkeqnsoh ds lEcU(/k Fks A"

Testimony of PW.5 (Cross-examination):

". . . . .

;g lgh gS fd eksgu esjk thtk Fkk o "kDy ls esjh eka dks vPNh rjg igpkurk Fkk A gekjs odhy lkgc yknwyky th gS A ;g lgh gS fd xqe"kqnxh dh fjiksVZ gekjs odhy lkgc us VkbZi djokbZ Fkkh blds fy, eSa o esjk thtk eksgu nksuksa x;s Fks A ..... ..... . . . . ."

9.3. This Court further observes that a perusal of the testimonies

of PW.1 and PW.5 reveal that firstly, if PW.1, as stated by him, saw

the deceased with the accused-appellants, then why he did not

inform the same to the family members of the deceased, despite

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the fact of the deceased went missing was in his knowledge.

Secondly, PW.5 stated that when they were are searching for the

deceased (two and half months after she went missing) in the

nearby villages, at that time Mohan Teli told them that the

deceased was seen with the accused-appellants, but Mohan Tali

(PW.1) is the brother-in-law of the PW.5, and PW.1 is aware that

the deceased was missing, then as to why he waited for a long

time of two and half months, before conveying such information to

the family of the deceased. Thirdly, PW.1 in his examination-in-

chief stated the accused-appellants' names but in his cross

examination he stated he did not know the accused-appellants by

their names and faces.

9.4. This Court also observes that the last seen theory of the

prosecution prepared on the basis of the PW.1's testimony, has

major contradictions, and apart therefrom, such testimony clearly

shows that the prosecution made such theory just to prove

involvement of the accused-appellants, without there being any

material evidence in this regard available on record. The deceased

was the mother-in-law of PW.1, and that the latter was aware of

missing of the deceased, but suddenly after two and half months,

he told that he saw the deceased last time with the accused-

appellants which, in the given circumstances, is very doubtful and

not reliable.

9.5. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Dinesh Kumar V.s State of

Haryana, (Criminal Appeal No. 530/2022, decided on

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04.05.2023), relevant portion whereof is reproduced as

hereunder-:

"15. In our considered view, in the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What we can call as discovery here under Section 27 of the Act, is the discovery of 'Parna' and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant.

In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence."

10. This Court further observes that the deceased's body was

recovered from the river on the basis of the information given by

the accused-appellants after two and half months of the incident

in question, and the body of the deceased was not in the position

to be identified, because it was completely decayed and was in the

form of a skeleton, but the family members of the deceased

namely PW.4- Geeta Devi, PW.5- Shankar, PW.6- Gyan Devi

identified the body of the deceased on basis of the clothes which

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she was wearing at the time she went missing and keys were also

found with the body of the deceased.

10.1. This Court also observes that the description of the clothes,

last worn by the deceased, were not mentioned in the Missing

Person's Report, Written Report, and the FIR; the identification of

the clothes, for the first time, came into the picture when the

deceased's body was recovered. This Court further observes that

the deceased's body was not in position to be identified, but the

police authority did not send the same for D.N.A. or any other

forensic analysis for identification of the dead body.

11. This Court also observes that the prosecution is entirely

based on recovery of ornaments, the receipt issued towards sale

of the ornaments, mobile phone of the deceased, Axe (Weapon)

and other things belonging to the deceased. This Court further

observes that the learned Trial Court mainly relied, on the

recovery made from the accused-appellants, for convicting them,

apart from such recovery, there are major contradictions, which

were sufficient to break the chain of evidence in the present case,

as is reflected from the evidence on record.

12. This Court also observes that the present case is based sole

on circumstantial evidence and as per chain of the circumstantial

evidence, it is expedient to have a look at the case laws pertaining

thereto.

12.1. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Sharad Birdhichand Sarda

Vs. State of Maharashtra, (1984) 4 SCC 116, relevant portion

whereof is reproduced as hereunder-:

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"153. A close analysis of this decision would show that the 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. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved"

and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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, (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.

154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

12.2 This Court is further conscious of the judgment rendered by

the Hon'ble Apex Court in the case of R. Sreenivasa Vs. State of

Karnataka, (Criminal Appeal No. 859 of 2011, decided on

06.09.2023), relevant portion whereof is reproduced as

hereunder-:

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17. In the present case, given that there is no definitive evidence of last seen as also the fact that there is a long time-gap between the alleged last seen and the recovery of the body, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete that the only inference that could be drawn is the guilt of the appellant. In Laxman Prasad v State of Madhya Pradesh, (2023) 6 SCC 399, we had, upon considering Sharad Birdhichand Sarda v State of Maharashtra, (1984) 4 SCC 116 and Shailendra Rajdev Pasvan v State of Gujarat, (2020) 14 SCC 750, held that '... In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime.' It would be unsafe to sustain the conviction of the appellant on such evidence, where the chain is clearly incomplete. That apart, the presumption of innocence is in favour of the accused and when doubts emanate, the benefit accrues to the accused, and not the prosecution. Reference can be made to Suresh Thipmppa Shetty v State of Maharashtra, 2023 INSC 749.

13. This Court also observes that in a case based solely on

circumstantial evidence, it is required that the chain of evidence is

complete and does not leave any doubt, but in the present case,

the testimony of the last seen witness i.e. PW. 1 is highly doubtful

and the same clearly shows that the last seen theory was

erroneously prepared by the prosecution. Therefore, the last seen

theory has completely failed and even the roots of the case are

not established by the prosecution. This Court further observes

that looking into the afore-quoted five golden principles, the

prosecution failed to establish the entire chain of circumstances,

so as to justify conviction of the present accused-appellants.

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14. This Court also observes that the learned Trial Court has

failed to consider that the prosecution was not able to establish

the entire chain of circumstantial evidence against the accused-

appellants and there are major contradictions in the prosecution

evidence.

15. It is however, made clear that though a submission has been

made on behalf of the accused-appellants that the accused-

appellants are behind the bars for last about 13 years, but in the

given circumstances and looking into the factual matrix of the

case, this Court finds no necessity to delve into the issue of

prolonged custody of the accused-appellants, as the facts of the