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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Kailash & Anr. vs. State of Rajasthan
D.B.Criminal Jail Appeal No.60/2007
against the judgment dated 20.9.2003
passed by Additional Sessions Judge
(Fast Track) No.1, Sirohi, Camp Abu
Road, in Sessions Case No.92/2002
(64/2001).
Date of Judgment :: 22nd April, 2011
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE C.M.TOTLA
Mr. Pradeep Choudhary, amicus curiae, for the
appellants.
Mr. KR Bishnoi, Public Prosecutor, for the State.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
The present appeal is directed against the
judgment of the learned Additional Sessions Judge
(Fast Track) No.1, Sirohi Camp Abu Road in Sessions
Case No.92/2002 dated 20.9.2003. Learned Additional
Sessions Judge has convicted the accused appellant as
under:-
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OFFENCES PUNISHMENT
Section 302/34 IPC Life imprisonment and a fine
of Rs.5000/- each in default
of payment of fine, one year
additional imprisonment.
Section 397 IPC Seven year RI and a fine of
Rs.5000/-, in default of
payment of fine, additional
one years imprisonment.
Section 201 IPC One years RI and fine of
Rs.1000/-, in default of
payment of fine, six months
additional imprisonment.
The prosecution was launched on the basis of
a report Ex.P/16 lodged by Amra Ram, Sarpanch, Gram
Panchayat Aamthala at Police Station Abu Road Sadar on
14.5.2001 at about 12:00 Noon. It was given out by the
complainant that on 14.5.2001 at about 10:00 AM, he
was at the bus stand Aamthala where, he heard that in
the village Aamali Fali and Nopa Fali where three
roads meet, in the bushes a dead body wearing pant
shirt is lying. After having received this
information, he alongwith Secretary of the Gram
Panchayat Shri Virendra Vyas went on the site and saw
that a person wearing blue pant and light blue
coloured shirt and black sandals in foot was lying
dead in the thorny bushes. It was expressed that this
person was killed some time on 13.5.2001 and 14.5.2001
and has been placed here.
On this information, a case was registered
under Section 201/34 IPC and 397 IPC. At the
investigation, three accused persons were traced to be
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accused being Kiran, Kailash and Umesh. The accused
persons were chargesheeted. They were made over to the
trial where, the trial court framed charges against
them under Section 302/34, 201/34 and 395 IPC. At the
trial, the prosecution examined 21 witnesses. The
accused were examined under Section 313 Cr.P.C. The
accused appellant Kiran produced two witnesses in
defence.
After considering the case of the
prosecution, the trial court convicted the accused
appellants as under:-
NAME OFFENCES PUNISHMENT
Kiran,Kailash Sec.302/34 IPC Life imprisonment and a
Umesh fine of Rs.5000/- each in
default of payment of
fine, one year additional
imprisonment.
Kiran,Kailash Sec.397 IPC Seven years RI and a fine
Umesh of Rs.5000/-, in default
of payment of fine,
additional one years
imprisonment.
Kiran,Kailash Sec.201 IPC One years RI and fine of
Umesh Rs.1000/-, in default of
payment of fine, six
months additional
imprisonment.
The trial court, after considering the case
of the prosecution, came to the conclusion that there
is no direct evidence in the case, however, five
circumstances were held proved against the accused
persons and those are :-
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(i) On 13.5.2001, accused Kiran, Kailash and Umesh
hired a taxi No.GJ-6/3222 at about 7:00 PM from
Palanpur, whose driver was deceased Sadique.
(ii) In morning of 14.5.2001, the dead body of driver
Sadique was lying at Aamali Fali and Nopa Fali where,
three roads meet.
(iii)The death of the driver Sadique was caused by
strangulation.
(iv) On 16.5.2001, accused Kailash and Kiran were
caught roaming with Sadique’s vehicle Tata Estate in
mysterious condition. Kailash and Kiran had changed
the number plate.
(v) From the possession of Kiran, the purse of the
deceased containing Insurance of his vehicle No.GJ-
6/3222 and photograph of deceased was recovered. From
the possession of Kailash, ring of the deceased was
recovered.
Accused Kiran assailed conviction made under
the judgment impugned dated 20.9.2003 by way of filing
an appeal i.e. DBCr.Appeal No.1118/2005 and that came
to be accepted by this Court on 11.8.2005.
The present accused appellants preferred
this appeal after acceptance of the appeal preferred
by accused Kiran.
Arguing the case of the accused persons,
learned counsel for the appellants submitted that the
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circumstances which have been held proved against the
accused persons are not at all sufficient to give a
finding of conviction. The circumstance held proved
about availability of the dead body of driver Sadique
at Aamali Fali and Nopa Fali on 14.5.2001, as per
counsel for the appellants, is quite innocuous
circumstance and i.e. of not much consequence so far
as adjudication of the matter is concerned. The
circumstance about the fact that Sadique died due to
strangulation, is a benign circumstance for all the
accused persons. It is empathetically submitted that
PW-1 Kadar Khan, PW-2 Arif Mohd. and PW-4 Mayub,
though identified accused Kailash and Umesh @ Udayram,
but the identification so made is of no consequence in
view of the fact that the accused persons were not
kept under well. It is also asserted that the trial
court itself has not relied upon trustworthiness of
PW-1 Kadar Khan and PW-2 Arif Mohd., therefore, no
part of their statements is required to be read
against the accused persons. With regard to recovery
made from the accused persons, it is stated that those
have not been established.
Heard counsel for the appellants and the
Public Prosecutor.
The circumstances against accused Umesh @
Udayram are that PW-1 Kadar Khan identified him as a
person who came to hire the taxi. The other accused
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Kailash too was identified by PW-1 as the person who
came for hiring the taxi alongwith Umesh and Kiran.
Accused Kiran was not identified by this witness. PW-4
Mayub also identified accused Kailash as the person
who came to deceased Sadique for hiring the taxi. The
another circumstance against this accused is recovery
of a silver ring from him. Pertinent to note here that
no evidence is available on record about
identification of the ring itself. A presumption is
drawn about ring on the basis of mark of letter “S” on
it. Similarly, the circumstance against the another
accused Umesh is his identification as the person who
came alongwith Kailash and Kiran to hire the taxi and
recovery of a wrist watch. So far as recovery of wrist
watch is concerned, that was not found reliable by the
trial court itself. As such the only circumstance
against accused Umesh is his identification as the
person who came to deceased Sadique for hiring a taxi.
The circumstances relied upon are not at all
sufficient to hold a person guilty for commission of a
serious offence of murder. It is well settled that to
establish guilty of a person the circumstantial
evidence should be of strong nature and all
circumstances should frame a complete chain to reach
at a definite conclusion. In the instant case the only
settled circumstance is identification of the accused
persons by PW-1 and PW-4. PW-1 was not found reliable
even by the trial court, therefore, the only evidence
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available is identification of accused Kailash by PW-
4. The identification so made is only as a person
hiring taxi. The nature of the evidence is too weak
and that is not at all sufficient to convict the
accused appellants. As a matter of fact whatever
circumstances established be taken on totality, then
too they do not indicate conclusively involvement of
the accused appellants in the crime. A reasonable
doubt exists with regard to their participation in the
crime and, therefore, a benefit of doubt is required
to be extended in their favour.
Accordingly, this appeal deserves
acceptance, thus, is allowed. The judgment impugned
dated 20.9.2003 passed by learned Additional Sessions
Judge (Fast Track) No.1, Sirohi Camp Abu Road in
Sessions Case No.92/2002 is quashed. The conviction of
the accused appellants for the offences under Sections
302/34, 397 and 201 Indian Penal Code are declared
illegal and, therefore, the same is set aside. As a
natural consequence the sentence imposed too is
quashed. Accused Umesh be released forthwith, if not
required in any other case. The sentence of accused
Kailash has already been suspended and he is availing
that, therefore, the bail bonds and sureties furnished
by him be discharged.
( C.M.TOTLA ),J. ( GOVIND MATHUR ),J.
Mathuria KK/ps.
