Akash @ Jagdish And Anr vs State
2024 Latest Caselaw 8491 Raj

Rajasthan High Court - Jodhpur

Akash @ Jagdish And Anr vs State on 25 September, 2024

Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit

[2024:RJ-JD:38291-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR


                 D.B. Criminal Appeal No. 1890/2017

1.       Akash @ Jagdish S/o Sh. Bheru Singh, B/c Rajput, R/o
         M.t.m Ki Chaliya, P.s. Pratap Nagar, Bhilwara.


2.       Manoj Kumar S/o Sh Bheru Lal Ji, B/c Bhambhi, R/o- Mtm
         Colony, Police Line Road, Bhilwara Raj.
                                                                     ----Appellants


                                       Versus


State Of Rajasthan
                                                                    ----Respondent



For Appellant(s)             :     Mr. Kaushal Sharma
For Respondent(s)            :     Mr. Deepak Choudhary, GA cum AAG



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

Judgment

Reserved on 06/09/2024 Pronounced on 25/09/2024

Per Dr. Pushpendra Singh Bhati, J:

1. By way of this criminal appeal (from Jail), the accused-

appellants laid a challenge to the judgment of conviction and order

of sentence dated 08.03.2017 passed by the learned Additional

Sessions Judge No. 3, Bhilwara, ('Trial Court') in Session Case No.

08/2014 (State of Rajasthan vs. Akash alias Jagdish & Anr.),

whereby the accused-appellants were convicted and sentenced as

below:

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Conviction under Sentence(s) Fine(s) Section(s) 302/120-B IPC Life Imprisonment Rs.10,000/-, in default of which, to undergo further 3 months' S.I. 364A/120-B IPC Life Imprisonment Rs.10,000/-, in default of which, to undergo further 3 months' S.I. 384 IPC Three Years' Rs.2,000/-, in Imprisonment default of which, to undergo further 1 month's S.I. 342/120 IPC One Year's Rs.500/-, in default Imprisonment of which, to undergo further 15 day's S.I.

2. Brief facts of this case, as placed before this Court by learned

counsel for the accused-appellants, are that Dinesh (PW-5)

submitted a written report (Ex. P-13) dated 12.11.2013 at around

8:15 PM before the Police Station, City Kotwali, Bhilwara to the

effect that on 12.11.2013 at around 7:41 PM, a call was received

by his wife Indra (PW-7) on her mobile phone, from an unknown

person, whereby she was informed that her son Hitesh alias Bittu,

aged 13 years, is in their custody and that, a ransom of Rs.10

Lacs was demanded so as to enable release of the minor child;

however, the said unknown person threatened that in case of

failure in fulfilment of the said demand, the minor child would be

killed. The said call was heard by PW-9 Vimla Suthar (sister of the

complainant), who was also present there at the relevant time and

who identified the voice of the unknown person to be that of

accused-Ravi, and later the complainant informed about the same

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to his friends, upon which the complainant alongwith his friends

started searching for his son, who was until then not found.

2.1. Upon inquiry, it was informed that Hitesh alias Bittu, was a

student of 8th Standard in Mahesh Siksha Sadan, who left at

around 6-6:15 PM for his friend's place from his house, and that

he was wearing a yellow coloured T-shirt, a blue coloured lower

and slippers; he had a wheatish complexion and was about 4 feet

tall, and that did not return home, and was last seen with Ravi

Soni while leaving.

2.2. On the basis of the aforementioned report, a case was

registered under Sections 365 & 384 IPC, and the investigation

commenced accordingly. Thereafter, the accused-appellants were

arrested, and on the basis of the information of the accused-

appellants, a dead body (unidentified) was recovered from the

railway track, which was identified to be that of the complainant's

minor son Hitesh.

2.3. After completion of the investigation, the police filed a

charge-sheet before the concerned Magistrate against the

accused-appellants under Sections 364A, 365, 342, 384, 302 &

120-B IPC, whereupon, the concerned Magistrate took cognizance

against the accused-appellants; owing to the nature of crime

involved, the matter was committed to the learned Sessions

Judge, from where the matter was forwarded to the learned Trial

Court for conducting the trial.

2.4. Thereafter, the learned Trial Court framed charges against

the accused-appellants under Sections 342, 364A, 365 read with

Sections 120B, 384 & 302 IPC; the same upon being read over to

[2024:RJ-JD:38291-DB] (4 of 11) [CRLA-1890/2017]

the accused-appellants, were denied by them and they claimed

trial, and the trial accordingly commenced.

2.5. During the trial, the prosecution produced 26 witnesses and

exhibited documents (Ex.P-1 to Ex.P-84) for examination. The

accused-appellants were examined under Section 313 Cr.P.C.,

wherein while pleading not guilty, the accused-appellants stated

that they had been falsely implicated in this case.

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

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

the learned Trial Court, vide the impugned judgment of conviction

and order of sentence dated 08.03.2017, convicted and sentenced

the accused-appellants, as above. However, accused-Ravi Soni

(juvenile in conflict with law, at the relevant time) was referred for

trial before the Juvenile Justice Board.

3. Learned counsel for the accused-appellants submitted that

entire case is based on the last seen theory, narrated by two

witnesses of last seen namely PW.15-Chandraprakash and PW.16-

Badam Bai; both the said witnesses have turned hostile during the

trial. It was further submitted that the said witnesses of last seen

stated that only one Ravi Soni (who passed away during trial) was

last seen with the deceased, and therefore, the conviction of the

accused-appellants, in the given circumstances, was not justified

in law.

3.1. It was also submitted that the dead body of the deceased, as

per the prosecution story, was recovered on the basis of the

information of the accused-appellants, however according to the

testimony of PW.10-Arjun Singh (Constable), the information

[2024:RJ-JD:38291-DB] (5 of 11) [CRLA-1890/2017]

about the dead body was received from the control room. It was

also submitted that at the time of recovery of dead body, no

witness (Motbir) of the said recovery was present. Therefore, the

recovery of the dead body, in the manner as stated by the

prosecution, itself creates a doubt on its story.

3.2. It was further submitted that knife was recovered at the time

of the recovery of the dead body, but the prosecution prepared a

story that the knife was recovered during investigation, on the

basis of the information given by the accused-appellants.

Therefore, it is clear that the prosecution has planted the said

knife, and recovered it subsequently, so as to falsely implicate the

accused-appellants in this case.

3.3. It was also submitted that no blood sample of the accused-

appellants were taken during the investigation which clearly shows

a faulty investigation procedure adopted in the present case. It

was further submitted that the alleged call for ransom made from

the alleged mobile number was not supported by any evidence

which could connect the accused-appellants with the crime in

question. Therefore, as per learned counsel, the impugned

judgment of conviction and order of sentence deserves to be

interfered with and the accused-appellants deserves to be

acquitted of the charges against them in the present case.

3.4. It was further submitted that the accused-appellants are

behind the bars for the last 11 years 05 months.

4. On the other hand, learned Public Prosecutor appearing for

the State, while opposing the aforesaid submissions made on

behalf of the accused-appellants, submitted that on the basis of

[2024:RJ-JD:38291-DB] (6 of 11) [CRLA-1890/2017]

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

the dead body of the deceased was made, in the presence of the

PW.8-Mishralal Suthar and PW.1-Jaswant Suthar.

4.1. It was further submitted that the knife(weapon) though was

recovered from an open field, the exact place near the railway

track as mentioned by the accused-appellants. It was also

submitted that the blood stains detected on the pant and shirt of

the accused-appellants, and blood detected knife, was of the same

blood group, and further no explanation rendered on behalf of the

accused for the same, clearly signifies the part and guilt of the

accused-appellants in committing the said offence.

4.2. It was also submitted that the Post-Mortem Report (Ex.P.-

75), clearly indicates that the deceased sustained 12 stabbing

injuries, which were sufficient to cause his death. The prosecution

case is dependent upon the circumstantial evidence, and the

recoveries in question as well as other evidence make it apparent

that the accused-appellants have committed the crime in question.

4.3. It was further submitted that the ransom call, as made,

clearly shows the conspiracy on part of the three accused persons

for committing the offence in question, thereby proving the

prosecution case beyond all reasonable doubts. It was also

submitted that the learned Trial Court after considering each and

every aspect of the case, convicted the accused-appellants, vide

the impugned judgment, which is justified in law.

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

record of the case.

[2024:RJ-JD:38291-DB] (7 of 11) [CRLA-1890/2017]

6. This Court observes that in the present case, the allegation

against the accused-appellants is that of committing the murder of

the deceased, owing to the demand of certain ransom amount.

After conclusion of the investigation, followed by trial, the

accused-appellants were convicted and sentenced vide the

impugned judgment of conviction and order of sentence, as

above.

7. This Court further observes that there is no eyewitness in the

present case and the case is based solely on the circumstantial

evidence and as per chain of the circumstantial evidence, it is

expedient to have a look at the case law pertaining thereto.

7.1. This Court is also conscious of the judgment renderedby 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:

"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."

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(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".

8. This Court observes that at the time, when the call with

regard to demand of ransom amount was received, PW.7-Indra

Suthar (mother of deceased) and PW.9-Vimal Suthar [sister-in-law

(Nanad) of PW.7] were present, and as per the testimony of PW.7,

the said call disconnected twice, but the third time the said call

was attended by PW-9, whereby the ransom was demanded; PW-9

identified that the person, who made the said call, was none other

than Ravi Soni. This Court finds that PW-9 also stated that she

attended the ransom call and identified that he was Ravi Soni, and

the factum of the said call and the identification of the person

making the call, was supported by PW.5-Dinesh Chandra Suthar

(complainant), and therefore, the same was clearly a

corroborative evidence.

9. This Court further finds that the dead body of the deceased

was recovered vide Fard (Ex.P/12) on the basis of the information

given by the accused-appellants; recovery was also made of the

[2024:RJ-JD:38291-DB] (9 of 11) [CRLA-1890/2017]

blood stained clothes of the deceased as well as that of the

accused-appellants and blood soaked soil from place of incident,

Moblie Phone of Ravi Soni and the accused-appellants, in the

presence of PW.1-Jaswant Suthar, PW.6-Shiv Kumar Pareek, and

PW.8-Mishri Lal Suthar.

10. This Court also finds that the call with regard to demand of

ransom was received from the SIM Card No. 9950302299, and the

said SIM Card and the Mobile was the stolen one, and belonging to

PW.19-Rewat Singh Rajput. This Court further finds that the knife

(weapon) was recovered on the basis of the information given by

the accused-appellants and Fard (Ex.P/44) was prepared in the

presence of PW-11-Karnveer Singh Rajput and PW.12-Ram Singh

Yadav. This Court also finds that as per the testimony of PW.14-

Shubham Sharma, who had the gift shop, Ravi Soni purchased the

knife from the said shop.

10.1. This Court also observes that there has been no explanation

given by the accused-appellants about the presence of the human

blood of their clothes, which were recovered during the

investigation, on the basis of their own statements.

11. This Court observes that as regards the corroboration of the

evidence on record with the chain of events, it has come on record

that Ravi Soni called from SIM No. 9950302299 to the deceased's

mother (PW.7) as mentioned in Call Details (Ex.P/82) and the said

SIM was used in the Mobile which was recovered on the basis of

information given by the accused-appellants in the presence of

PW.11 and PW.12. This Court further observes that Ravi Soni

called from his mobile, while using SIM No. 7665991255 to the

[2024:RJ-JD:38291-DB] (10 of 11) [CRLA-1890/2017]

accused-appellants carrying mobile with SIM No.9214543569,

which has been duly proved by the Call Details (Ex.P/84) and the

accused-appellants never denied their acquaintance with the said

Ravi Soni.

12. This Court also observes that as per the F.S.L. Report

(Ex.P/74), upon recovery of the knife, the blood detected was of

human blood group 'O' and the same blood group was also found

on the accused-appellants' clothes, which were recovered during

the course of investigation.

13. This Court also observes that the postmortem report (Ex.P.-

75) reveals that there were 12 injuries sustained to the body of

deceased and as per the testimonies of PW.23- Dr. V.K. Chouhan,

PW.24-Dr. Devi Lal Chipa and Dr. 25- Dr. Omprakash Aagla, who

have conducted the postmortem of the deceased, the deceased

died due to shock and injuries inside and outside the chest of the

deceased and that those injuries were sufficient to cause the

death of the deceased in the ordinary course of nature and that

they cannot be caused due to falling from a height or by an

accident.

14. This Court further observes that there were no eye witnesses

in the present case in question, and that the two prosecution

witnesses of last seen, namely, PW-15 Chandraprakash and PW-16

Badami Bai, have turned hostile during the trial, however, the

same cannot vitiate the entire trial, more particularly, when they

completely corroborate with other evidences, i.e. PW-5, PW-7 &

PW-9 as well as recovery witnesses PW-1, PW-6 & PW-8 and the

postmortem report (Ex.P-75), testimonies of the doctors, and the

[2024:RJ-JD:38291-DB] (11 of 11) [CRLA-1890/2017]

FSL Report (Ex.P-74) alongwith the call details records (Ex.P-82 &

Ex.P-84). The said evidence clears shows the involvement of the

accused-appellants in the crime in question.

15. Thus, on the basis of the above analysis of the documentary

and oral evidence so available on record, this Court do not find

any illegality or perversity in the impugned judgment of conviction

and sentence of the present accused-appellants. The learned Trial

Court has gone through the evidences on record thoroughly and

has undertaken all the precaution while analyzing the material

evidence and testimonies, which has been exercised by this Court

as well and in the light of the same, our opinion is that the learned

Trial Court has committed no error whatsoever in coming to the

conclusion of convicting the accused-appellants for the crime in

question.

16. Consequently, the impugned judgment of the conviction as

well as the order of sentence dated 08.03.2017 passed by the

learned Additional Session Court No. 3, Bhilwara in Session Case

No. 08/2014 (State of Rajasthan vs. Aakash alias Jagdish & Anr.)

is upheld and the present appeal is accordingly dismissed.

16.1. All pending applications stand disposed of. The record of the

learned Trial Court be returned forthwith.

(YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J

SKant/-

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