Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
JUDGMENT
Mangi Lal. Versus State of Rajasthan.
D.B. Criminal (Jail) Appeal No.819/2003
against the judgment and order dated
19.7.2003 passed by the Additional Sessions
Judge (Fast Track), Jalore in Sessions Case
No.95/2003 (4/2003).
...
Date of Judgment: May 28, 2010
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
...
Mr. Kalu Ram Bhati, for the appellant.
Mr. A.R. Nikub, Public Prosecutor for the State.
BY THE COURT (Per Hon'ble Joshi, J.)
By the instant D.B. Criminal (Jail) Appeal, the
appellant-accused has assailed the judgment and order dated
19-7-2003 passed by the Additional Sessions Judge (Fast Track),
Jalore (for short, “the trial Court” hereinafter) in Sessions Case
No.95/2003 (4/2003), whereby the appellant has been convicted
for the offences under Sections 302, 364 and 201 IPC and
sentenced to imprisonment for life and a fine of Rs.2000/-, in
default of payment of fine to further undergo one year’s simple
imprisonment for the offence under Section 302 IPC; seven
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
2
years rigorous imprisonment and a fine of Rs.1500/-, in default
of payment of fine to further undergo six months simple
imprisonment for the offence under Section 364 IPC; and three
years rigorous imprisonment and a fine of Rs.1000/-, in default
of payment of fine to further undergo four months simple
imprisonment for the offence under Section 201 IPC.
The factual matrix of the case, in a nut shell, is that on
28.12.2002, complainant Seeta lodged a written report (EX.D/2)
with Police Station, Jalore stating therein that 20 to 25 days
before lodging of the FIR, her mother Smt. Phooli R/o village
Dhawla was taken by appellant-accused Mangi Lal on the pretext
that he would drop her to Jalore and on the same day, appellant
Mangi Lal returned to village Dhawla and on being asked by the
complainant, he told that her mother has been boarded to the
bus going to village Chandana. After two to three days, her
father Rawata came on 17.12.2002 to his in-laws house at
village Samuja and asked about her mother then she told that
she had gone to village Chandana eight days before, upon which
her father told that her mother did not reach Chandana. On
being asked to her sister, she told that she had not seen Smt.
Phooli. Thereafter, on 19-12-2002, a report was lodged before
the Superintendent of Police, Jalor, on which no action was
taken. A day before the incident, appellant had manhandled the
deceased, to which she raised objection, upon which the
appellant also manhandled her which resulted in an injury on
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
3
her lips but since appellant is the husband of the complainant,
she did not lodge any report to that incident. On lodging the
report, the police registered FIR No. 3/2003 under Sections 365,
498-A, IPC and after investigation, filed Challan before the
Additional Chief Judicial Magistrate, Jalore, from where the case
was committed to the court of the learned Sessions Judge, Jalore
and ultimately the case was transferred to the learned trial
Court. The trial court framed charges under sections 364, 302,
201 and 379, in the alternative under Section 411 IPC,
whereupon the appellant-accused did not plead guilty and
claimed to be tried.
In support of its case, the prosecution examined
twenty witnesses and produced the documents EX.P/1 to
EX.P/41. The statement of appellant-accused under Section 313
Cr.P.C. was recorded. Despite opportunity being granted, no
witness in defence was produced; however the statement of
Seeta recording during investigtion (EX.D/1), the report
(EX.D/2), the statement of Goma Ram recorded during
investigation (EX.D/3) and the statement of Saka Ram recorded
during investigation under Section 161 Cr.P.C.(EX.D/4) were
got exhibited in defence.
After hearing the learned counsel for the parties and
considering the oral and documentary evidence on record, the
learned trial court convicted and sentenced the appellant as
stated above.
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
4
We have heard learned counsel for the parties and
carefully gone through the record.
The main contention of the learned counsel for the
appellant is that the trial court, while recording the order of
conviction, found proved the Points No.1, 2, 3, 4 and 5, framed
for consideration, in favour of prosecution as proved beyond
reasonable doubt and on the basis of the above-points, found the
appellant guilty of the offences under Sections 364, 302 and 201
IPC; whereas the facts of recovery of a stick in pursuance of the
information given by the appellant under Section 27 of the Indian
Evidence Act and the extra-judicial confession made by the
appellant before PW 12 Gopa Ram and PW 13 Saka Ram and the
fact regarding recovery of ornaments belonging to the deceased
were not found to be proved by the learned trial Court.
So far as Points No.1 to 5 as discussed by the learned
trial court are concerned, the main contention of the learned
counsel for the appellant is that so far as the evidence of “last-
seen” of the deceased with the appellant is concerned, it is very
weak type of evidence and there is settled proposition of law that
such a presumption of guilt against the accused can only be
drawn against the accused if the circumstances adduced by the
prosecution prove that no otherwise presumption can be drawn
except the guilt of the accused; whereas in the present case, as
per the statement of PW 1 Smt. Seeta, she saw the appellant
with the deceased when both of them started from her residence
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
5
and regarding the later evidence, the prosecution has produced
PW 7 Shanker Lal, who was the driver of Jeep No. RJ.16-T-6465
in which the appellant and the deceased travelled from Jalore to
Bagotara Bera.
The next contention of the learned counsel for the
appellant is that the deadbody of the deceased could not be
identified as it was recovered after two to three months from
the date of the incident. As per the statement of PW 15 Dr. S.L.
Mathur, the death of the deceased took place two to three
months back from the date of conducting the autopsy by him.
The charge against the appellant, as framed by the trial colurt, is
that twenty to twenty-five days before 02-01-2003, the appellant
had committed intentional death of deceased Phooli. Thus, the
time of death as alleged in the charge and the time of death as
adduced in the evidence by PW 15 Dr. S.L. Mathur are not
matching and, therefore, the conviction recorded and the
sentence awarded by the learned trial court suffer from illegality
and perversity and the prosecution evidence which was believed
by the trial court, is very week type of evidence and in the
totality of the facts and circumstances on record, it cannot be
said that no presumption other than the guilt of the appellant can
be drawn in the instant case.
Per contra, learned Public Prosecutor, while supporting
the impugned judgment and order, urged that the judgment of
conviction and order of sentence passed by the learned trial
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
6
court do not suffer from any error, illegality and perversity; on
the other hand, it is a well-proved case against the appellant and
the presumption has been drawn by the trial court on reliable
evidence, therefore, the impugned judgment and order do not
require interference.
We have given out thoughtful consideration to the
rival submissions made by the learned counsel for the parties.
After considering the evidence produced by the prosecution and
carefully scanning, evaluating and scrutinizing the evidence on
record, it is clear that the corps of deceased Phooli was
recovered after two to three months from the date of the
incident and the deadbody of the deceased was not in a position
to be identified by any person as it had decomposed.
So far as the evidence of PW 1 Smt. Seeta is
concerned, we have carefully perused her statement. In her
cross-examination, it has come that she was not liking her
husband appellant Mangi Lal because he was much elder to her
in age. The motive, as discussed by the trial court is also not
reliable because as per the statements of PW 1 Smt. Seeta and
other prosecution witnesses, the appellant was already residing
with the member of his in-laws and there is no evidence on
record that deceased Smt. Phooli and her husband Rawata were
intending to deprive the appellant from his property-rights.
It is cardinal principle of criminal jurisprudence that to
convict an accused on the basis of circumstantial evidence, the
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
7
prosecution has to prove each essential circumstance by leading
trustworthy evidence and the circumstances so proved must
constitute an unbroken chain leading towards infallible conclusion
of guilt of the accused. Here the learned trial court mainly relied
upon the evidence of last seen of the deceased with the
appellant-accused. The star witnesses in this regard are PW 1
Smt. Seeta, who is the wife of the appellant and daughter of the
deceased; and PW 7 Shanker Lal, who is the jeep driver. PW 7
Shanker Lal has not proved the fact of seeing the deceased and
the appellant nearby the place of the incident and his statement
is confined only to the extent of hiring the jeep for a particular
destination. The statement of PW 1 Smt. Seeta also does not
inspire confidence and the same cannot be taken as a gospel
truth inasmuch as that she was not leading a happy marital life
with the appellant on account of age difference. She deposed
about the presence of the deceased and the appellant together
at a place which was about four kilometres away from the well,
wherefrom the deadbody was recovered. More so, the time gap
between alleged last seen incident and recovery of deadbody
cannot be ignored. There is gap of about two to three months
and the possibility cannot be ruled out that the death may have
occurred after some day of the alleged last seen. Hence, it is
unsafe to record conviction of the appellant on the basis of the
statement of untrustworthy witnesses, who deposed about some
circumstantial evidence, which themselves are not sufficient to
Mangi Lal Vs. State of Rajasthan
D.B. Criminal (Jail Appeal No. 819/2003)
8
bring home the guilt against the appellant.
In view of the aforesaid discussion, in our considered
view, the fact of believing points No.1, 2, 3, 4 and 5 by the trial
court are not based on cogent and convincing evidence.
Resultantly, this criminal jail appeal is allowed; the
impugned judgment and order dated 19-7-2003 passed by the
learned Additional Sessions Judge (Fast Track), Jalore in
Sessions Case No.95/2003 (4/2003) is set aside and appellant-
accused Mangi Lal S/o Hosa Meghwal is acquitted of the offences
for which he was charged with and tried. He is in jail and be set
at liberty if not required in any other case.
(KAILASH CHANDRA JOSHI), J. (GOVIND MATHUR), J.
mcs
