1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT
Pushkar Lal versus State of Rajasthan D.B.CRIMINAL APPEAL NO.936/2004 against the judgment dated 17.8.2004 passed by learned Additional Sessions Judge, (Fast Track).Chittorgarh in Sessions Case No.27/04.
Date of Judgment :: 22.01.2014 PRESENT HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE ATUL KUMAR JAIN Mr.Vineet Jain & Mr.Gaurav Singh, for the appellant Mr.K.R.Bishnoi, Public Prosecutor ..BY THE COURT : By judgment dated 17.8.2004 the learned Additional Sessions Judge (Fast Track).Chittorgarh convicted the accused appellant Pushkar Lal for the offence punishable under Sections 302 and 201 I.P.C.The learned Additional Sessions Judge sentenced the appellant to undergo life term imprisonment with a fine of Rs.2000/- and further to undergo two month’s simple imprisonment in the event of default in payment of fine for the offence under Section 302 I.P.C.The sentence to undergo three yeaRs.rigorous imprisonment with a fine of Rs.1000/- and further to undergo one month's simple imprisonment in the event of default in payment of 2 fine was awarded for the offence punishable under Section 201 Indian Penal Code.
To challenge the judgment and order aforesaid, this appeal is preferred.
The case of the prosecution as unfolded in the judgment impugned is that on 14.12.2003 Shri Mohd.
Bilal son of deceased Mohd.
Hussain submitted a written report (Exh.P/31) at Police Station, Sambhupura with assertion that on 10.12.2003 at about 8.00 AM Pushkar Lal came to his house and was talking in loud tone with his father.
Pushkar Lal insisted his father to accompany him with money, failing to which, he was apprehending some trouble.
Shri Mohd.
Hussain then took money from home and left the house on his own motor-cycle and followed Pushkar Lal, who was riding on other motor-cycle.
Shri Mohd.
Hussain did not return to home in night, thus, in the next morning enquiry was made from Pushkar Lal, who conveyed that Mohd.
Hussain stayed with him for about half an hour and then returned.
Despite best efforts Mohd.
Hussain was not traceable, who was last seen in the company of Pushkar Lal.
On the basis of aforesaid information, a case was lodged and the investigation commenced for the offence punishable under Section 365 I.P.C.During the couRs.of investigation accused Pushkar Lal was arrested and at his instance dead-body of Mohd.
Hussain 3 was recovered.
Another accused Sultan was also arrested during the couRs.of investigation and after completion of investigation, a police report was filed before the competent court.
After providing an opportunity of hearing, the court framed charge against accused Pushkar Lal for commission of offence punishable under Sections 364, 302, 201/34 I.P.C.and for the offence punishable under Sections 302/34 and 201/34 I.P.C.against accused Sultan.
On denial of charges, the trial commenced as desired.
The prosecution supported its case by getting 20 witnesses examined and by exhibiting several documents.
An opportunity was accorded to the accused persons to explain the adveRs.and incriminating circumstances in prosecution evidence, that was termed by them as false and concocted.
Statements of DW-1 Jakhir Hussain and DW-2 Umar Shah were recorded by the trial court in defence of accused Sultan.
The accused appellant Pushkar Lal got the statement of Gopal Singh (DW-3) examined in his defence.
The trial court after examining the entire evidence available on record and considering the arguments advanced by learned counsel for the accused and the learned Public Prosecutor, acquitted accused Sultan from the charges levelled, but convicted accused Pushkar Lal for the offence punishable under Sections 302 and 201 I.P.C.4 The learned trial court while recording conviction of accused Pushkar Lal relied upon the circumstance relating to the evidence pertaining to last seen, recovery of dead-body of deceased Mohd.
Hussain at the instance Pushkar Lal, recovery of currency notes from him and recovery of motor-cycle and key of that from Nimbahera bus stand at the instance of accused and arrived at the conclusion that the complete chain of circumstance indicates only one conclusion i.e.the involvement of the accused in the crime in-question.
In appeal, the argument advanced by learned counsel for the appellant is that the trial court failed to appreciate that the evidence except relating to last seen is not at all trustworthy and that is not sufficient to base conviction.
According to learned counsel a reasonable doubt exists in believing the prosecution case and that demands acquittal of the appellant.
It is asserted by learned counsel for the appellant that the accused was arrested on 14.12.2003, and on 15.12.2003 a disclosure as per Exhibit P/33 was made by him about the availability of dead body of Mohd.
Hussain.
The disclosure aforesaid was made at 6:15 AM and subsequent thereto the dead-body was recovered as per Exhibit P/1 on 15.12.2003 at 9:30 PM.
In the period interregnum, an another disclosure was made by the accused as per Exhibit D/5 on 15.12.2003 5 at 3:00 PM.
The Investigating Officer Shri Ram Ratan (PW-
15) while getting his testimony examined, stated that he acted upon the information given under the document (Exhibit D/5) but that was found false and dead-body was recovered as per the information given under Exhibit P/33.
According to learned counsel for the appellant the information given under Exhibit P/33 and Exhibit D/5 is of the same nature, as such, there would have been no need to avail second information.
As a matter of fact, the information was availed only under Exhibit D/5 and the dead-body was recovered even prior to that on the basis of certain other informations, but, just to frame the accused appellant in the case, story of two disclosures was introduced.
While placing reliance upon the statement given by Investigating Officer, learned counsel submits that the police team proceeded to recover the dead body after having disclosure as per Exhibit P/33 at 6:30 PM and recovered dead-body at 9:30 PM, meaning thereby a distance of 7 Kms was covered in 15 houRs.This fact as per learned counsel is highly improbable and clearly indicates concoction of evidence.
With regard to recovery of currency notes, the submission made by the learned counsel is that as per document document Exhibit P/38 disclosure was made by the accused appellant for getting currency notes of Rs.15,000/- recovered, but under the document (Exhibit P/22).the total 6 amount recovered was of Rs.48,000/-.
The factum of recovery of this amount was attested by two witnesses, namely, Mohd.
Sabir (PW-11) and Abdul Sattar (PW-13).The learned trial court did not find witness Abdul Sattar (PW-13) trustworthy as he made efforts to shift the act of accused Sultan on accused Pushkar Lal.
As per learned counsel, the evidence adduced by Mohd.
Sabir (PW-11) is also not reliable being having serious contradictions.
So far as recovery of motor-cycle of deceased and its key at the instance of present accused is concerned, it is submitted that an information in this regard was availed by the police on 17.12.2003 at 6:30 am and recovery was made from the front of a shop situated near Nimbahera bus stand on the same day at 11:30 am.
The motor-cycle was found in abandoned position and its key was also found lying nearby at an open place.
The argument of learned counsel is that no motor-cycle and its key would have remained abandoned for good 6-7 days at an open place.
While opposing the appeal and supporting the conviction recorded by the trial court, learned Public Prosecutor submits that the entire evidence adduced by the prosecution is trustworthy and is framing a complete chain of circumstances indicating definite involvement of the accused with the crime in-question.
According to learned Public Prosecutor, an 7 information with regard to availability of dead-body was given at 6:00 AM by the accused on 15.12.2003 and on basis of that, dead-body of Mohd.
Hussain was recovered.
This fact in addition to the facts relating to recovery of motor-cycle of deceased Mohd.
Hussain at the instance of accused clearly indicates his involvement in the crime in-question.
Heard learned counsel for the appellant, learned Public Prosecutor and examined the evidence available on record.
There is no doubt about homicidal death of Mohd.
Hussain in view of medical evidence available, thus, we are not giving the details relating to cause of death.
The conviction of the accused appellant is founded on circumstantial evidence.
So far as the fiRs.circumstance i.e.relating to last seen is concerned, that has been established beyond any shadow of doubt with the aid of the statements made by Smt.
Ashiya (PW-12) and Shri Mohd.
Bilal (PW-19).As per these witnesses, accused Pushkar Lal came to their house on 10.12.2003 and was talking loudly with Mohd.
Hussain.
Mohd.
Hussain, as desired by Pushkar Lal, took money from Smt.
Ashiya (PW-12) and proceeded with accused Pushkar Lal, though, on a separate bike.
The FiRs.Information Report about missing of Mohd.
Hussain was lodged on 14.12.2003 i.e.after a lapse of more than three 8 days and in that report too, the fact of the last seen of deceased in the company of accused Pushkar Lal was mentioned.
As per Mohd.
Bilal (PW-19).on 11.12.2003 he went to Mangrole to enquire about his father Mohd.
Hussain from accused Pushkar Lal, who conveyed that Mohd.
Hussain was with him at his well for about half an hour on 10.12.2003 and then he left the place.
It appears that uptil 14.12.2003 the family members of deceased Mohd.
Hussain including Smt.
Asiyan (PW-12) and Mohd.
Bilal (PW-19) were having no doubt about any role of accused in missing/abduction or committing any crime by Pushkar Lal in relation to Mohd.
Hussain.
His name was mentioned in written report (Exh.P/31) as a bonafide narration of facts taken place on 10.12.2003.
As such, there is no doubt in accepting the version given by the witnesses Smt.
Asiyan (PW-12) and Mohd.
Bilal (PW-19) about the last seen of deceased in the company of Puskhar Lal on 10.12.2003.
A very important circumstance on which the prosecution relied upon is recovery of dead-body of Mohd.
Hussain at the instance of accused.
Accused Pushkar Lal, who was arrested on 14.12.2003 at 10:00 PM, made a disclosure at 6:15 AM on 15.12.2003 about the place where dead-body of Mohd.
Hussain was lying.
According to learned counsel for the appellant, the dead-body of Mohd.
Hussain was recovered at 9:30 PM i.e.after a lapse of 15 hours from the time of the 9 disclosure made and this delay indicates concoction of the scene of crime.
It is urged that the recovery would have been made immediately after the information given as the place wherefrom dead-body was recovered is at a distance of about 7 Kms from the police station.
The argument advanced prima facie appears to be attractive but is not of much force.
Shri Ram Ratan (PW-15).the Investigating Officer, in quite specific terms stated that the disclosure was made by the accused at 6:15 AM.
He alongwith other members of police team proceeded with accused to the spot indicated at about 7:30 AM and recovered dead-body at 9:30 AM.
This witness clarified that he understands the term “AM”.
and “PM”.
and the term “PM”.
in the document Exhibit-P/1, the recovery memo of dead-body would have been mentioned erroneously.
We are having no hesitation in accepting this version of facts given by the Investigating Officer as the other documents, such as, the site inspection report, inquest report, recovery of control soil etc., were prepared in morning hours as all these documents bears the term “AM”.The error as suggested by the Investigating Officer is quite obvious and no benefit of that can be availed by the accused.
However, the evidence relating to recovery of dead-body deserves little deep examination.
The document Exhibit D/5 is also an information said to be given by accused Pushkar Lal on 15.12.2003 at 3:00 PM.
As 10 per this information, the accused desired to get the dead- body of Mohd.
Hussain recovered from the outer yard of the “Bangar Factory”., the same place as referred in document Exhibit P/33.
We failed to understand as to what was the occasion for availing/giving any information about the event that was already disclosed and recovery of the dead-body was already made in pursuance thereto.
If the dead-body was already recovered at 9:30 AM, then no occasion was there to make a further disclosure of the same nature at 3:00 PM of the same day.
For the sake of argument, even if it is assumed that some error would have been occurred and in the document Exhibit D/5 too the time 3:00 AM would have been erroneously mentioned as 3:00 PM, then too the prosecution case looses reliability in view of the fact that the Investigating Officer Shri Ram Ratan (PW-15) while deposing before court stated that he acted upon the information given under Exhibit D/5, but that was found false.
At the cost of repetition, it shall be appropriate to mention that the information given under the document Exhibit-D/5 and Exhibit P/33 with regard to the dead-body of Mohd.
Hussain were exactly same.
The disclosure as per the document Exhibit D/5, if was made at 3:00 AM and no dead-body was found by acting upon that, then how the dead-body could have been recovered at 9:30 11 AM, while acting upon the information given under the document Exhibit P/33.
Learned Public Prosecutor utterly failed to satisfy the court about the contradiction noticed above.
An another aspect relating to this circumstance is that big number of people were knowing about the disclosure said to be made by accused Pushkar Lal in early morning and they proceeded to the site where the dead-body was found.
Shri Usman Khan (PW-1) stated that on 15.12.2003 at about 8-9 AM he went to police station where during interrogation Pushkar Lal accepted that he had committed murder of Mohd.
Hussain and he was desirous to get the dead-body recovered.
As per this witness, he alongwith several other persons followed the Station House Officer, who was going to recover dead-body of Mohd.
Hussain, as disclosed by accused Pushkar Lal.
We fail to understand as to how the disclosure made by accused Pushkar Lal came out in public and a number of persons arrived at the police station to follow the police team.
It is further relevant to note that as per the prosecution, disclosure was made at 6:15 AM and the Investigating Officer with other members of police team proceeded to the site of crime at 7:30 AM, but as per Usman Khan (PW-1).Pushkar Lal was at the police station at about 8-9 AM and was accepting his guilt.
12 The other witness Akram Hussain (PW-2) also stated that on being knowing that the dead-body of Mohd.
Hussain may be recovered, he went to the site wherefrom dead-body was recovered.
Shri Sabir Hussain (PW-9) stated that he went to police station at about 7:00 AM as there was a rumour in village that dead-body of deceased Mohd.
Hussain may be recovered at the instance of Pushkar.
Shri Abdul Razak (PW-10) also stated that at about 6-6.30 AM some information was available at the house of deceased that Pushkar Lal is going to make a disclosure about the place of crime and was also going to get the dead-body recovered.
All the facts noticed above clearly indicates that the factum of lying of dead-body of Mohd.
Hussain at the place wherefrom it was recovered was not in exclusive knowledge of accused but of so many persons.
Suffice to mention that PW-10 Abdul Razak indicated presence of more than 100 persons at the place wherefrom the dead-body was recovered.
The knowledge of the fact about possible recovery of dead-body clearly indicates casual way of investigation.
Such an investigation is prone to errors and implantations.
The facts discussed above, in their totality creates a reasonable doubt in accepting the prosecution case with regard to recovery of dead-body of Mohd.
Hussain at the instance of Pushkar Lal, as such, this circumstance fails and virtually demolishes the edifice of the prosecution story.
13 The other circumstance is recovery of motor-cycle of Shri Mohd.
Hussain and its key from the front of a shop near to Bus Stand, Nimbahera.
As per the Investigating Officer Shri Ram Ratan (PW-15).accused Pushkar Lal made a disclosure before him as per document Exhibit P/35 on 17.12.2003 at 6:30 AM about the motor-cycle of deceased Mohd.
Hussain and its key and by acting upon that recovery of these articles was made on 17.12.2003 at 11:30 AM.
Suffice to mention that the defence witness Gopal Singh (DW-
3) stated that he was working as Watchman of the area at Nimbahera, wherefrom the motor-cycle was said to be recovered and he did not see any motor-cycle lying abandoned from 10.12.2003 onwards.
As per this witness, if the motor-cycle would have been lying abandoned, then necessary information would have been given by him to the police and other responsible persons.
The testimony of this witness has not been found reliable by the trial court in view of the fact that he failed to produce any material to show that he was ever employed as Watchman of the area.
Be that as it may, even by ignoring the statements made by Shri Gopal Singh (DW-3).we are having reasonable doubt in accepting the prosecution story about recovery of the motor-cycle.
As per Ram Ratan (PW-15).the motor-cycle was recovered from a place where 5-7 shops are situated.
The motor-cycle was lying abandoned in front of 'Mausam Bahar Kachori' shop.
14 While affecting recovery, he did not got the same attested by the shop-keepers or the local residents of Nimbahera.
No attestation was also taken from local police of Police Station, Nimbahera.
The recovery was made by getting its attestation through the persons who happens to be the relatives of deceased.
Same is the position with regard to recovery of key of motor-cycle aforesaid from an open place.
As per the prosecution, the motor-cycle and its key remained abandoned from 10.12.2003 onwards uptil its recovery on 17.12.2003 at 11:30 AM.
We fail to understand as to how a small key of motor-cycle remained as that was thrown by the accused on a running road for good six days.
The place from where key was recovered is a corner of the road having regular movements of people.
In normal couRs.a key would have not remained un-noticed lying on the road for good six days.
The motor- cycle too could not have been remained unnoticed in an abandoned condition in front of a running shop for good six days.
For the reasons given above, recovery of the motor- cycle and its key on 17.12.2003 too is under heavy clouds.
The failure of the circumstance relating to recovery of dead-body and recovery of motor-cycle with its key breaks the chain of circumstances on the basis of which prosecution desires to establish guilt of the appellant.
On breakage, a huge doubt exists in accepting the prosecution story.
The appeal, thus, deserves acceptance.
15 Accordingly, the same is allowed.
The conviction recorded and sentence awarded to accused appellant Pushkar Lal by the learned trial court under the judgment dated 17.8.2004 is set aside.
The accused appellant is acquitted from the charge levelled against him.
Let he be released from State custody forthwith, if not required, in any other case.
(ATUL KUMAR JAIN).J.
(GOVIND MATHUR).J.
Sanjay 16