IMPORTANT POINTS
Recovery of articles at the instance of accused, though recovery and identification not made as per procedure and are doubtful, cannot be basis for conviction.

Headnote:(a) Criminal Trial – Evidence – Witness not telling the facts to police – deposing the same before trial court for the first time – Trying to improve – Not reliable. (Para 10)
       (2003) 11 SCC 19 – Relied upon
       (b) Indian Evidence Act, 1872 – Section 27 – Property recovered on information of accused – Accused obtaining key from his father – Property not in his exclusive possession – Recovery and identification procedures not followed – Even if recovery of certain incriminating articles were made at the instance of the accused, that by itself cannot form the basis of conviction – Appellants entitled to benefit of doubt. (Para 14, 15)
       AIR 1954 V.P. (Vol.41 CN 15); (2011) 3 SCC 306 – Relied upon
       Facts of the case:
       Appellants were convicted and sentenced for offences u/s 120B, 302, 460 and 382 IPC.
       Appeal before the High Court failed.
       Finding of the Court:
       Appellants are entitled to benefit of doubt.

JUDGMENT :

C. NAGAPPAN, J. –

1. These two appeals are preferred against the judgment of the High Court of Judicature of Rajasthan at Jaipur Bench in DB Criminal Appeal No.664 of 2001.

2. The appellant Dr. Atma Ram in Criminal Appeal No.1363 of 2009 is the accused No.1 and the appellant Vijay Kumar in Criminal Appeal No.441 of 2009 is accused No.3 in the Sessions Case No.28 of 2001 (38/1986) on the file of Additional Sessions Judge (Fast Track) Jhunjhunu, Rajasthan and they were tried for the alleged offences under Section 120B, 302, 460 and 382 IPC. Three other accused namely A-2 Kailash Chand, A-4 Gyanchand and A-5 Radha Devi were also tried in the same case for the alleged offence under Section 411 IPC.

The Sessions Court found accused Nos. 1 and 3/appellants guilty of the charges framed and sentenced them each to suffer imprisonment for life and to pay a fine of Rs.5000/- each in default to undergo rigorous imprisonment for six months each for the offence under Section 302 read with Section 120B IPC and further sentenced them each to undergo rigorous imprisonment for eight years and to pay a fine of Rs.1000/- each and in default to undergo rigorous imprisonment for six months each for the offence under Section 460 IPC and also sentenced them each to undergo rigorous imprisonment for eight years and to pay a fine of Rs.1000/- each and in default to undergo rigorous imprisonment for six months each for the offence under Section 382 IPC and ordered the sentences to run concurrently.

The Sessions Court also found accused Nos.2, 4 and 5 guilty of the offence under Section 411 IPC and sentenced them each to undergo rigorous imprisonment for two years and each to pay a fine of Rs.500 and in default each to undergo rigorous imprisonment for three months.

3. Aggrieved by the conviction and sentence accused Nos.1 to 5 preferred appeal in Criminal Appeal No.664 of 2001 and the High Court by judgment dated 2.5.2007 dismissed the appeal preferred by the accused No.1 Atma Ram and accused No.3 Vijay Kumar/appellants herein and at the same time allowed the appeal pertaining to accused No.2 Kailash Chand, A-4 Gyan Chand and Accused No.5 Radha Devi and acquitted them of charge under Section 411 IPC. Challenging their conviction and sentence accused No.1 Atma Ram and accused No.3 Vijay Kumar have preferred the present appeals.

4. Briefly the case of the prosecution is as follows: Accused No.1 Atma Ram was working as a Doctor in the Government Hospital in village Chhapoli and Keshar Bai was posted as a mid-wife in the same hospital and a month prior to occurrence she started residing in a room on the ground floor under the stair- case of the hospital. She used to give loan on interest on the mortgage of gold and silver ornaments. PW 17 Sweeper Basanti Lal was also residing in a corner room on the ground floor of the hospital. A-1 Atma Ram was residing on the first floor of the same hospital. Accused No.3 Vijay Kumar was his brother-in-law and he was also residing with him.

On 11.11.1985 PW 17 Basanti Lal noticed Kesar Bai sitting outside in the hospital and also noticed return of Atma Ram to Hospital. Dr.Atma Ram forwarded a written report on November 12, 1985 through Peon Nand Lal to Udaipurbati Police Station (Jhunjhunu) informing about the murder of Keshar Bai. In the report A-1 Atma Ram stated that in the preceding night around 12.30 a.m. he suddenly woke-up hearing voice of sweeper Basanti Lal who was asking to open the door of his room which was bolted from outside. Atma Ram then got up and proceeded towards the room of Basanti Lal but the door of Atma Ram's staircase was also bolted from outside, therefore he could not go out and awoke Vijay Kumar, who was residing with him.

Vijay Kumar then scaled the roof and unbolted the room of Basanti Lal. Thereafter all the three went down through the staircase and went towards Nohra. They found the room of Keshar Bai open. They called Keshar Bai, but she did not respond. Therefore they entered inside the

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2014 Supreme(SC) 116

SUPREME COURT OF INDIAT.S. Thakur, C. Nagappan, JJ.Vijay Kumar – AppellantsVersusState of Rajasthan – RespondentsCRIMINAL APPEAL NO.441 OF 2009 With CRIMINAL APPEAL NO.1363 of 2009Decided On : 18-02-2014

IMPORTANT POINTSRecovery of articles at the instance of accused, though recovery and identification not made as per procedure and are doubtful, cannot be basis for conviction.

Cases Referred (2)

SUPREME COURT OF INDIA
T.S. Thakur, C. Nagappan, JJ.
Vijay Kumar – Appellants
Versus
State of Rajasthan – Respondents
CRIMINAL APPEAL NO.441 OF 2009 With CRIMINAL APPEAL NO.1363 of 2009
Decided On : 18-02-2014

IMPORTANT POINTS
Recovery of articles at the instance of accused, though recovery and identification not made as per procedure and are doubtful, cannot be basis for conviction.