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SUNDER AND OTHERS v. STATE OF RAJASTHAN

SUNDER AND OTHERS
v.
STATE OF RAJASTHAN

(High Court Of Rajasthan, Jaipur Bench)

Criminal Appeal No. 1011/2012 | 27-01-2015


R.S. Chauhan, J.—The discovery of two dead bodies, of Pooran Singh and Rampyari @ Ramdei, the recovery of few footprints, the recoveries of Sariyas (iron rods) and of a barrel of a gun, recovery of the stolen jewelry and its identification form the backdrop of this case. By judgment dated 24.11.2012, the Additional Sessions Judge No. 1, Kishangarhbas convicted the appellants, namely Sunder, Suresh @ Ravi, and Bhagwan Singh @ Chuchu for offences under Sections 460 and 394 IPC. By an order of even date, the learned Judge has sentenced all the three appellants to life imprisonment and imposed a fine of Rs. 5000/-, and further directed the appellants to undergo three months of simple imprisonment in default thereof, for both the offences. The appellants have challenged the said judgment before this court.

2. Briefly, the facts of the case are that Charan Singh (P.W.1) submitted a written report (Ex. P.1) before the SHO, Police Station Khairthal wherein he claimed that "he is a resident of the village Rasgan. He lives in the village Dabadwas under Police Station Mandad and does the work of 'Phirwali' (a person who protects the farms from intrusion of animals). My mother and father both do the work of 'Phirwali' at Village Pranpura. On 30.7.2007, both of them had come and had started living at our village, Rasgan. This morning my grand-father informed me that in the night between 7.8.2007 and 8.8.2007, my mother and father have been killed. I came to Rasgan and I saw that both my mother and father were lying dead on a Charpoi (cot) in my house. Both had suffered injuries on their faces and on their heads. There was lot of blood spilled around them. The objects kept in the room were scattered in the room. I am submitting this report so that legal proceedings can be initiated".

3. On the basis of this written report (Ex. P.1), a formal FIR, bearing FIR No. 211/07, was chalked out for offences under Sections 302 and 460 IPC. During the course of the investigation, the police arrested the three appellants, namely Sunder, Suresh and Bhagwan Singh, and one juvenile delinquent, Babulal. After completing the investigation, the appellants were put up for trial. Since Babulal was a juvenile, his case was separated from the trial of the present appellants. The appellants were charged for offences under Sections 460, 302, or 302/34 and 394 IPC.

4. In order to support its case, the prosecution examined thirty-six witnesses, and submitted seventy-four documents. In turn, the defense neither examined the witness, nor submitted any document. After completing the trial, by judgment dated 24.11.2012, the appellants were convicted and sentenced, as aforementioned. Hence, this appeal before this court.

5. Mr. Govind P. Rawat, the learned counsel for the appellants has raised the following contentions before this court: firstly, the case is entirely based on circumstantial evidence. However, the prosecution has failed to build-up its case against the appellants in order to prove their guilt. There are too many lacunae in the case of the prosecution to unerringly point to the guilt of the accused.

6. Secondly, according to the prosecution, footprints of all the three appellants were recovered from the scene of the crime; their individual footprints were also taken while they were in police custody. These footprints were sent to the FSL for its report. According to the FSL Report (Ex. P.50) dated 19.9.2008, the footprints taken from the scene of the crime and from the individual appellants matched perfectly. However, according to the learned counsel, the recovery of footprint is highly doubtful. For, the prosecution witnesses, Charan Singh (P.W.1), Balbeer (P.W.2), Gorelal (P.W.3), Sunita (P.W.7), Smt. Mani (P.W.8), Jagdish (P.W.13), have consistently deposed that not only the relatives, but many people from the village had gathered at the scene of the crime. Therefore, the footprints of the appellants and the footprints of the villagers must have gotten mixed up. Further, the place from where the footprints were lifted by the police is unclear. According to the site plan (Ex. P.4 and Ex. P.4A), the footprints were lifted from outside the house, but according to Sunder Singh (P.W.11), a brother of the deceased, Pooran, and according to Jagdish (P.W. 13), the recovery witness of the footprints, the footprints were lifted from inside the courtyard where the dead bodies were lying. Furthermore, the footprints taken of the appellants have not been taken in conformity with Sections 4 and 5 of the Identification of Prisoners Act, 1920 ('the Act of 1920', for short). Moreover, the procedure given in Rule 6.26 of the Rajasthan Police Rules, 1965, has not been followed. Therefore, the evidence with regard to the footprints is suspect. Furthermore, relying on the case of Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, the learned counsel has pleaded that since the science of identification of footprints is not too well developed, it is a weak sort of evidence for convicting the accused. Moreover, the identity of the culprit has to be arrived firstly, by other evidence before the footprints can be used for their identification.

7. Thirdly, there is an inordinate delay in both recovering the jewelry from Sunder, Suresh and Bhagwan, and in its identification. Further, the recovery of the jewelry has not been supported by the independent recovery witness. Moreover, the evidence with regard to identification of the recovered jewelry is too vague. Hence, the recovery of the jewelry and its identification is too fragile an evidence for convicting the accused. The delay in holding the identification parade of the jewelry has not been explained by the Investigating Officer. Therefore, the recovery and identification are doubtful.

8. Lastly, although Sariyas (iron rods) have been recovered from Suresh and Bhagwan, but these recoveries were from open place. Moreover, the barrel of gun recovered from Sunder does not connect him to the alleged crime. For, none of these three articles had blood upon them. Therefore, they were never subjected to FSL examination. Hence, the recoveries are immaterial. Thus, the prosecution has not been able to establish its case by creating a chain of circumstances which would unerringly point towards the guilt of the accused.

9. On the other hand, Mrs. Sonia Shandilya, the learned Public Prosecutor, has pleaded that firstly, the prosecution has submitted cogent and convincing evidence to establish its case against the appellants.

10. Secondly, two persons have been killed by the appellant. Therefore, the court should be on guard while assessing the evidence. It should meticulously examine the evidence.

11. Thirdly, the FSL Report (Ex. P. 50) with regard to the foot moulds clearly establishes the presence of the appellants at the scene of the crime. Therefore, even if the procedure prescribed by Section 5 of the Act, 1920, and by Rule 6.26 of the Rajasthan Police Rules have not been followed, it would not make the foot moulds suspect.

12. Fourthly, the recoveries of the jewelry from the appellants have been well proven by the prosecution. Tejpal (P.W.4) proves the recovery of two silver bracelets, a nose pin and a Tagadi from Suresh. Similarly, Shahabuddin (P.W.20) corroborates the said recovery. Likewise, Pooran @ Kishan (P.W.34) supports the recovery of gold Hasali from Bhagwan. Thus, the recoveries of the jewelry are well established by the prosecution.

13. Likewise, the recovery of the Sariya (iron rod) from Suresh is equally well proved by Vijaypal (P.W.5), and the recovery of Sariya (iron rod) from Bhagwan is equally well established by Gorelal (P.W.3), and by Shahabuddin (P.W.20), and the recovery of barrel of gun from Sunder is equally proved by Ishwar Singh (P.W.17) and Ramkishore (P.W.27). Therefore, the prosecution has well established not only the recoveries of the jewelry, but also the recoveries of the weapons of commission of crime.

14. Fifthly, the jewelry was identified by Charan Singh (P.W.1) and Jagdish (P.W.13) as the jewelry belonging to their mother, Rampyari @ Ramdei. Hence, the three pieces of evidence, namely the presence of the footprints at the scene of the crime, the recovery of the jewelry and its identification, and the recovery of the weapons of crime unerringly point towards the guilt of the accused persons. Therefore, the learned Public Prosecutor has supported the impugned judgment dated 24.11.2012.

15. Heard the learned counsel for the parties, examined the record and perused the impugned order.

16. Relying on the case of Hanumant Vs. The State of Madhya Pradesh, , recently in the case of Vasant Sampat Dupare Vs. State of Maharashtra, , the Hon'ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence as under:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

17. Therefore, while appreciating the evidence in the present case, these principles will have to be kept in mind.

18. Charan Singh (P.W.1), the complainant and the son of the deceased persons, has stated in examination-in-chief that "it was about three years, or three years and two months ago that the incident had occurred. The incident had occurred at night. My mother, Rampyari, and my father, Pooran Singh, were murdered. It happened in our house at Village Rasgan. It happened inside the house. At that time, I was doing the work of Phirwali in Village Tapadwas. My mother and my father use to do the work of Phirwali in Village Ranoli Pragpura. When the murder took place, my mother and father had started living in village Rasgan. I had spoken to my mother and father around 9:00 or 9:30 PM. In the morning, my grand-father, Ramchandra, informed me that some unknown persons have killed my mother and father. I came to the village. My mother and father were lying dead on the Charpoi (cot). Their head and face were injured. There was blood all around. There were blood spots even on the Chhan (the roof made of hay and grass). The goods in the house were lying scattered. When I reached, there were lots of villagers there. The police had also reached at the spot. I had given the police a written report (Ex. P.1) at the spot itself. A to B is my signature. On the basis of this report, Ex. P.2 (the FIR) was chalked out. In the house, my mother used to have gold Hasali (a collar), gold earrings, Dholana, one nose pin, one silver Hasali, bracelet, one Tagadi (a waist band), one pair of anklets, and one Katala. The Katala had nine silver coins on it. But all these were taken by the culprits. I had seen all this jewelry on my mother. However, as I was disturbed at the time when I filed the report, I saw all this jewelry missing only after filing the report. My father's mobile, which was for Rs. 1600/- and had the SIM No. 9413633311, was also missing. I had given the SHO a list of the missing articles which is Exhibit-P.3. It has my signature from A to B. The police had drawn up the site plan (Ex. P.4). It has my signatures from A to B. After the Post-Mortem, the corpses were given to us by corpse receipt (Ex. P.5). It has my signature from A to B. The crime has been committed by unknown persons. I have not seen anyone killing my mother and father. Unknown persons have killed them. The police had gotten the dead bodies photographed."

19. In this cross-examination, Charan Singh claims that "the distance between Pragpura and Rasgan is about thirty to forty kilometers. I do not remember the exact time when I was informed. But I was informed in the morning. I was informed over the telephone. I have not submitted the telephone record to the police. I came by a vehicle. At that time, lot of relatives had come. I cannot tell you the names of those who had come. Twenty to twenty-five villagers were sitting at the place where the murder had occurred. I had seen the dead bodies. Others may have also seen the dead bodies. The roof is Kachha at the place where the dead bodies were lying. The door had two planks. I had shown the door to the police. In the site plan (Ex. P.4), although the police have not indicated the door, but I had told them about the door. It is incorrect to say that the road to Rasgan is near my house. That road is far off. It is as far as the distance between the court and the main road. The floor of the house is not Kachha one, and is not covered by Gobar (cow dung). When I had seen the dead bodies, I became very disturbed. When I had seen the dead bodies, I do not remember whether the dead body had the jewelry on it or not. Subsequently, I found the jewelry missing. Immediately, after seeing the dead bodies, I had given the report to the police. But I cannot tell the exact time. The list of missing jewelry I had given after the cremation. A relative of mine had written the said list. I kept on telling him, and he kept on writing. When I reached the house, the police was already there. The police had sketched the site plan and recovered the blood and had carried out all other proceedings at the scene of the crime itself. I had given the report at the scene of the crime itself. Since I was disturbed at the time, I cannot tell you the exact time of giving the report. The police started the investigation then and there. Lot of villagers had gathered. From whom I got the report written, I cannot tell you. I kept on dictating and the person kept on writing. I gave the list of the missing jewelry at the site on the same day. It is only after the cremation that I realized that jewelry was missing. My father and mother had come earlier to Rasgan on 30.7.2007. Prior to the incident and after 30th July, I did not meet my parents. I cannot tell as to from which jeweler, my parents had gotten the jewelry made. My mother's name was inscribed on the jewelry and on the silver Hasali. I did not tell the police that besides the Hasali, my mother's name was inscribed on other jewelry pieces. The jewelry was with my parents, but I have never seen them put it away. My parents had gotten the jewelry made. This type of jewelry which my parents had gotten made is easily available at a jeweler's shop in the market. It is true that where the incident had occurred, our house is the only one. It is wrong to say that I am making false statements in order to falsely implicate the accused persons."

20. Similar testimonies have also been given by Balbir (P.W.2), a distant relative of the deceased persons, Gorelal (P.W.3), a cousin brother of deceased, Pooran Singh, Sunita (P.W.7), the daughter-in-law of the deceased persons, Mani (P.W.8), another daughter-in-law of the deceased persons, Sunder Singh (P.W.11), the brother of the deceased, Pooran Singh, Jagdish (P.W.13), another son of the deceased. Therefore, their testimonies are not being reproduced here.

21. Dr. Rakesh Kumar (P.W.14) was member of the Medical Board which performed the Post-Mortem of Pooran Singh and of Rampyari. According to Pooran's Post-Mortem Report (Ex. P.22) "the cause of death is head injury which caused shock in death. All injuries were ante-mortem in nature." Similarly, according to Ramdei's Post-Mortem Report (Ex. P.23), "the cause of death is head injury which caused shock in death. All the injuries were ante-mortem in nature." Since the homicidal death of both these persons is not in question, as it has been admitted by the learned counsel for the appellants, the testimony of this witness is not being reproduced in detail. Suffice it to say that the homicidal death of both of the persons is clearly established.

22. But a bare perusal of the testimonies of the witnesses clearly shows that the entire case is based on circumstantial evidence. Therefore, this court is seized of the issue whether the three circumstances produced by the prosecution are sufficient to hold the appellants guilty of the alleged crime, or not?

23. Prahlad Swaroop (P.W.22) informs the court that he was called to the scene of crime for lifting four footprints of bare feet. He had poured the plaster of Paris and had lifted the footprints. He had sealed the same by recovery memo (Ex. P.21). Subsequently, on 25.4.2008 at the Police Station Khairthal, while the accused Sunder, Babulal and Suresh were in police custody, he had taken their footprints, in total six footprints, by recovery memo (Ex. P.34). In his cross-examination, "he claims that he had reached at the place of the incident at 4:00 or 4:30 PM." According to him, "the footprints were covered. He does not remember whether there were other persons footprints were coming and going." He further admits that "the footprints recovered by him by recovery memo (Ex. P.21) were not recovered in front of a Magistrate." He further admits that "he cannot tell whether the footprints were of fast speed, medium speed, or slow speed." He admits that "when he was lifting the footprints, there were lots of villagers around him." He further claims that "the footprints were lifted from about ten to fifteen steps away from where the dead bodies were lying." He further admits that "the footprints taken at the police station were taken on sand." He also admits that "these footprints were not taken in front of a Magistrate." He also admits that "moulds of the footprints taken from the place of the occurrence and in the police custody were not shown to him in the court."

24. According to Sunder Singh (P.W.11), the brother of deceased, Pooran Singh, "the police had lifted impressions of right and left foot from three to four different places." In his cross-examination, he admits that "when he reached the house of the deceased, there were lots of villagers there." According to him, "the villagers were coming and going." He further claims that "those who were coming and going, their footprints were outside the house." According to him, "the police had lifted the footprints from the Chowk (courtyard)." According to him, "the police had lifted the footprints around 8:00 AM. The footprints were lifted along with the sand." Again he has reiterated that "the footprints were lifted from three to four different places. But for these footprints, no other footprints were taken by the police." Further according to him, "the footprints were lifted from about three to four feet away from the dead bodies." He claims that "he has studied up to B.A." He further claims that "Ex. P.4 (site plan) shows the place from where the footprints were lifted." He also admits that "it is true that in the Chowk, there was lot of hay." He also admits that "in the Chowk, there are no gates and it is open." He also claims that "he cannot tell as to who had visited the house before he reached there."

25. Jagdish (P.W.13), recovery witness to the lifting of the footprints, also claims that "the footprints were lifted from five to six different places." But in his cross-examination he admits that "he is an illiterate person. He does not know what the police had investigated inside the house as he was not permitted to go near the dead bodies. Subsequently the police had asked him to put his thumb impression on the written documents prepared by them. Therefore, he cannot even tell the court as to what had written in the documents." The other witness of lifting of the footprints, Kunwar Singh, has not been examined by the prosecution.

26. But according to the site plan (Ex. P. 4) the footprints were not lifted from the courtyard, or from near the dead bodies. According to the site plan (Ex. P. 4) the dead body was lying in a room marked as 'A'. But the footprints were lifted from outside the house, at a place marked as 'X' and 'X2'. It is, indeed, an old adage that "man may lie, but circumstances do not". The site plan (Ex. P. 4) is a contemporaneous document. According to Sunder Singh (P.W. 11) the site plan is correct and depicts the way the things were found. Therefore, even if Sunder Singh (P.W.11) and Prahlad Swaroop (P.W. 22) claim that the footprints were lifted from near the dead bodies, their testimonies are belied by the site plan (Ex. P.4). Moreover, there is a contradiction between the testimony of Prahlad (P.W.22) and testimony of Sunder Singh (P.W.11) with regard to the time when the footprints were lifted. According to Prahlad (P.W. 22), the footprints were lifted around 4:00 PM in the evening; according to Sunder Singh (P.W. 11), the footprints were lifted at 8:00 O'clock in the morning. It is also pertinent to note that according to Charan Singh (P.W.1), Balbeer (P.W.2), Sunita (P.W.7), Mani (P.W.8), Sunder Singh (P.W.11), Jagdish (P.W.13), the villagers had been coming and going in and around the house. Thus, it is unclear as to whose footprints were lifted from the scene of the crime. It is equally unclear from where were they lifted, and at what time they were lifted from the scene of the crime. Most importantly, Prahlad Swaroop (P.W.22) has clearly admitted that the footprints were not lifted before a Magistrate. Therefore, the lifting of the footprints from the scene of the crime is enigmatic.

27. Rule 6.26 of the Rajasthan Police Rules, 1965 is as under:--

"6.26. Importance of footprints and track evidence.--(1) Footprints are of the first importance in the investigation of crime. For this reason all officers in-charge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime.

(2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevented from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The officer investigating the case and his assistants shall be allowed no share in the conduct the test.

Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer.

The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions.

(3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime.

In making moulds for production as evidence the following precautions should be observed:--

(a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds.

(b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting.

(c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting.

(d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court."

28. Thus, Rule 6.26 (3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to reliable witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26(3)(d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court. However, in the present case, according to Prahlad (P.W.22), the footprints were not lifted from the place of the occurrence in front of a magistrate. They were, in fact, lifted in front of Jagdish. But Jagdish is not an independent witness as he is one of the sons of the deceased. Furthermore, according to Jagdish (P.W.13), the moulds of the footprints were not produced before the trial court during his testimony for his identification and for comparison by the court. Therefore, the procedure established by the rules has not been followed. Moreover, the second recovery witness, Kunwar Singh, has not been produced by the prosecution. Thus, a material witness has been withheld by the prosecution. Therefore, considering the contradictions between the witnesses, considering the contradiction between the testimonies of the witnesses and the site plan, considering the fact that the procedure prescribed by law has not been followed, considering the conduct of the prosecution in withholding an independent witness of recovery from the court, the recovery of the footprints from the scene of the crime cannot be believed.

29. According to Prahlad (P.W.22), even when he had taken the footprints of the appellants in the police custody, the Magistrate was not present. Section 4 and Section 5 of the Act of 1920 are as under:--

"4. Taking of measurements, etc., of non-convicted persons.--Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.

5. Power of Magistrate to order a person to be measured or photographed.--If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) [now, Code of Criminal Procedure, 1973 (2 of 1974)] it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:

Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:

Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."

30. Section 5 prescribes the manner in which the measurement of a non-convicted person is to be taken. Therefore, before a foot impression of an accused can be taken during the course of investigation, the procedure as laid down by Section 5 has to be followed. A magistrate has to be satisfied in order to direct the person to allow his measurements or photographs to be taken. The said order has to be passed by the magistrate of the First Class. However, in the present case no such order has been passed by the magistrate of the First Class directing the appellants to allow the police to take their footprints.

31. According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit-P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating officer, Gopal Singh (P.W.30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character.

32. Further, Ghamsi Ram (P.W.23) admits in his cross-examination that "the names of the accused were not tagged with the impression of their foot. It is true that at the time of taking the foot impression by Exhibit-P.34, only police personnel were present and no outside person was present at that time. No person from outside was called. It is true that the foot impressions which were taken are not before me in the court. It is true when the foot impressions were taken, a Magistrate was not present at that time".

33. The other witness to this recovery, Dayanand, has not been produced by the prosecution. Thus, again the prosecution has withheld a material witness. Further, the procedure prescribed by law has been flouted by the investigating agency. Neither a magistrate, nor independent witnesses have been associated with taking of the footprints and the foot moulds of the appellants during police custody.

34. Considering the fact that the entire case is based on circumstantial evidence, considering the fact that the prosecution has failed to prove as to where the footprints were lifted from the place of the occurrence, considering the fact that the procedure for lifting the footprint has been flouted, considering the fact that according to Ghamsi Ram (P.W. 23), the foot prints lifted during the police custody were not even tagged with the names of the appellants, the report of the FSL (Ex. P.50) loses all its significance. The said report claims that the footprints lifted from the scene of the crime and the footprints of the accused match perfectly. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable.

35. In the case of Leela Ram and Ashok Vs. State of Rajasthan, , this court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, , the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Singh and Another Vs. State of Punjab, the Hon'ble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants.

36. The prosecution has stressed on the recovery of jewelry from the appellants and its identification by Charan Singh (P.W.1) and Jagdish (P.W. 13). Sunder was arrested on 20-4-08 that is after eight months of the incident. On 30-4-08, he gave a statement (Ex. P.57) under Section 27 Evidence Act, to the police that he could get the jewelry recovered from the house of Ishwar Singh. Consequently, the police recovered a silver 'hasli' and a gold 'dholna' from Ishwar Singh's house, by recovery memo (Ex. P. 38). The said recovery was witnessed by Ganga Ram (P.W. 29) and by one Balbir (not produced by the prosecution as a witness). Ganga Ram (P.W. 29) in his cross examination clearly admits that "it is the police which had showed him the recovered silver 'hasli' and the gold 'dolna' as the items recovered by them." Moreover, he admits that "the recovered jewelry was not shown to him in the trial on the day his testimony was recorded." He further admits that "the jewelry recovered from the room belong to Ishwar Singh." However, most interestingly, Ishwar Singh (P.W. 17) does not speak a word about the recovery of any jewelry by the police from his room at the instance of Sunder. Thus, the jewelry was not recovered in the presence of Ganga Ram (P.W. 29) as it was shown by the police that they have recovered the said items. Moreover, the jewelry was not recovered from the possession of Sundar. In fact it was recovered from a room belonging to Ishwar Singh. Since the recovery has not been supported by the independent witness, the recovery is highly doubtful.

37. Suresh was also arrested on 20-4-08. On 1-5-08, he also made a statement (Ex. P. 60) to the police about getting the jewelry recovered from the house of his father-in-law, Bhawara @ Kali Charan. Consequently, by recovery memo (Ex. P. 15) the police recovered two silver bracelets, a nose pin, and a 'togdi'. The said recovery was not only witnessed by Shahbuddin (P.W. 20), but he has also supported it. However, the jewelry was not recovered from the possession of Suresh, but was recovered from the possession of his father-in-law Bhanwara alias Kalicharan.

38. Furthermore, despite the fact that the jewelries were recovered from Sunder on 30-4-08 and from Suresh on 1-5-08 respectively, but no identification parade was held till 20-6-08. Thus, the jewelry was identified after an inordinate delay of one and half months by Charan Singh (P.W. 1) and by Jagdish (P.W.13). Gopal Singh (P.W. 30), the Investigating Officer, has not offered any explanation for the delay in holding the identification parade of the jewelries.

39. Interestingly according to the prosecution the identification parade of the jewelry was held on 20.6.08 by the then Tehsildar, Om prakash (P.W.35) However. Om Prakash (P.W.35) is absolutely silent about the holding the TI parade on 20.6.2008 by Ex. P. 35. In fact he does not prove Ex. P. 35. The said exhibit has been proven only by Bhopal Singh (P.W.30). Therefore, the details of holding the TI parade are conspicuously missing in the present case. For, Om Prakash (P.W.35) does not give any details as to how many pieces of jewelry were mixed with the recovered jewelry. Therefore, it is unclear whether the precautions for holding a valid T.I. parade were actually followed or not.

30. Likewise, Bhagwan was arrested on 4.9.2008. On 9-9-08, he, too, gave a statement (Ex. P. 70) under Section 27, Evidence Act to the police for getting the jewelry recovered from his house. Consequently, by recovery memo (Ex. P. 67), the police recovered a gold 'hasli' from his house. The said recovery was witnessed by Pooran (P.W. 34) and by Ram Singh (not produced by the prosecution as a witness). Pooran (P.W. 34) claims in his examination-in-chief that he has witnessed the recovery. But in his cross-examination he admits that "he is an illiterate person who was asked to merely put his thumb impression on some written documents. Being an illiterate person, he did not know the contents of the documents." Hence, he does not prove the recovery of the gold 'hasli'. Moreover, although the gold 'hasli' was recovered on 9-9-08, it was not subjected to an identification parade till 12-11-08. Hence, there is, again, an inordinate delay of more than two months in holding the test identification parade. Again, Gopal Singh (P.W. 30) does not offer any explanation for the said delay. Furthermore, Om Prakash (P.W.35) does not give any details about the holding of TI parade. Therefore, it is unclear as to under what circumstances the recovered jewelry was recognized by Charan Singh (P.W. 1) and Jagdish (P.W.13).

41. Thus, a perusal of the evidence with regard to the recovery of jewelry and its identification is shrouded in mystery. Therefore, the prosecution has failed to prove its recoveries and its identification to a hilt. Therefore, these two pieces of evidence cannot be read against the appellant. Moreover, mere recoveries of stolen jewelry is too week a piece of evidence for conviction of the appellant for offence 460 and 394 IPC.

42. The last piece of evidence stacked against the appellants are the alleged recoveries of weapons of commission of the crime, namely from Sunder a barrel of a gun, from Suresh a sariya (iron rod), and from Bhagwan a sariya (iron rod). According to the prosecution, on 23.4.08 Sunder made a statement (Exh.-P.56) under Section 27 of the Evidence Act that he could get a barrel of a gun recovered from a room belonging to Ishwar Singh. Consequently, on 24.4.08 by recovery memo (Ex. P.30) a barrel of gun was recovered from a 'kothri' (a room attached to the well) in the field of Ishwar Singh (P.W.17). This recovery was witnessed by Ishwar Singh (P.W.17) and Ram Kishore (P.W.27). Ishwar Singh (P.W.17) supports the recovery. Although this recovery has been supported by Ishwar Singh (P.W.17), but as the barrel did not have any incriminating evidence upon it, it was not sent to the FSL for its examination. Therefore, the mere recovery of the barrel does not connect Sunder to the alleged offence. Hence, the recovery is meaningless.

43. According to Gopal Singh (P.W.30) on 24.4.08 Suresh gave a statement (Ex. P.59) under Section 27 of Evidence Act that he could get a 'sariya' recovered from the well which belonged to Data Ram. Consequently, on 25.4.08 a sariya was recovered by recovery memo Ex. P.18. The said recovery was made before Vijay Pal Singh (P.W. 5) and Banne Singh (not produced by the prosecution as a witness). Vijay Pal (P.W.5) admits that "the sariya was recovered from an open place." Moreover, "there were no blood spots on the sariya." T h e sariya recovered from Suresh was not produced before Vijay Pal during the recording of his testimony. Further, he claims that "the sariya is readily available in open market." Most importantly, the sariya was not sent to the FSL for its report. Therefore, even the recovery of this sariya from Suresh does not connect him to the alleged crime.

44. According to Krishna Kumar (P.W.36) he arrested Bhagwan on 4.9.08. During his police custody, on 11.9.08 Bhagwan made a statement (Exh.-P.72) wherein he told the police that he could get a 'sariya' recovered from under a railway bridge in village Harsauli. Consequently, by recovery memo (Exh. P.12) dated 11.9.08 the police recovered a 'sariya' from the said place. The said recovery was witnessed by Gore Lal (P.W.3) and Shabuddin (P.W.20). Although both these witness support the recovery, but nonetheless the 'sariya' had been recovered from an open place. Further, since there was no blood on the sariya, it was not subjected to any examination by the FSL. Hence, this recovery, too, does not connect Bhagwan to the alleged crime.

45. A critical and holistic analysis of the evidence clearly reveals that the prosecution has failed to travel the distance between "may be true" and "must be true". Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle which are conspicuously missing. The evidence is neither cogent, nor convincing for upholding the conviction of the appellants for the alleged crime. Therefore, the appellants deserve to be given the benefit of doubt by this court.

46. For the reasons stated above, the appeal is hereby, allowed. The appellants, Sunder, Suresh @ Ravi, and Bhagwan Singh @ Chuchu, are acquitted of the charges framed against them under Sections 460 and 394 IPC. Since the appellants are languishing in Jail, they shall be released forthwith, if not wanted in any other criminal case.

47. Keeping, however, in view the provisions of Section 437-A Cr.P.C. the appellants, namely Sunder, Suresh @ Ravi, and Bhagwan Singh @ Chuchu, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond each in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment, or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

Advocates List

For Petitioner : Govind Prasad Rawat, for the Appellant; Sonia Shandilya, Public Prosecutor, Advocates for the Respondent

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

Kanwaljit Singh Ahluwalia J. R.S. Chauhan J.

Eq Citation