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2014 Supreme(Raj) 631
RAJASTHAN HIGH COURT
Jaipur Bench
Nand Lal Vs. State of Raj. (Chauhan, J.)
HON'BLE R.S. CHAUHAN, J.
HON'BLE KANWALJIT SINGH AHLUWALIA, J.
Nand Lal
Versus
State of Raj.
D.B. Criminal (Jail) Appeal No. 1150 of 2006, decided on 25.11.2014
K.A. Khan, for Accused-Appellants;
N.S. Dhakad, P.P., for State
Headnote:Penal Code, Secs. 302/34 and 394/34 — Basing conviction on circumstantial evidence — Evidence of last seen, recovery of weapons, identification of recovery place of weapon, and recovery of ornaments from the accused — Held — The evidence of last seen is belied by medical evidence — Contradiction regarding recovery of ornament — Disclosure statements are doubtful — The recovery memo was not attested by the witness in whose presence it was recovered — Investigation of the case is tainted — Not safe to base conviction on the circumstantial evidence — Conviction and sentence set aside — Acquitted. (Paras 45, 50 to 55)
Appeal allowed.
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vihysa Lohdkj dhA
2. Both the appellants were tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur for offences under Sections 302 and 394/34 IPC. The trial court vide the impugned judgment dated 15th April, 2005 held both the appellants guilty of the offences punishable under Sections 302/34 and 394/34 IPC. Having convicted the appellants for the said offences, vide a separate order of even date, appellants were sentenced as under:-
(i) for offence under Section 302/34 IPC:-
Life imprisonment and to pay a fine of Rs. 100/- and in default thereof, to further undergo three months rigorous imprisonment.
(ii) For offence under Section 394/34 IPC:-
Ten years rigorous imprisonment and to pay a fine of Rs. 100/- and in default thereof, to further undergo three months rigorous imprisonment.
Both the sentences were ordered to run concurrently.
3. Aggrieved against the conviction and judgment, the appellants have instituted separate appeals through jail.
Criminal litigation was set into motion on presentation of written complaint (Ex.P.22) by Manohar (PW.11) before Piara Singh (PW.18), SHO Police Station, Murlipura Distt. Jaipur City, Jaipur. In the written complaint, Manohar averred that his elder mother Bidami Devi W/o Suvalal, aged about 65 years, from last 15/20 years was residing in House No. A 152 at Murlipura Scheme. She was residing alone. She was having a vend at Murlipura Circle for selling garlands and Jowar, i.e. the feed for the birds. On the morning of 9th August, 2003, complainant was informed by Maliram (PW.2) that his mother was not coming for selling Jowar (sorghum) for last two days. Complainant went to her room and found that the doors of the room were lying open. She was lying on a cot. Complainant alongwith his family members and residents of the Mohallaha (locality) made arrangements for cremation of Bidami and when they lifted her body from the cot, it was found that both the feet of the dead body were chopped off, her neck was strangulated with a Ludgi which was tightly tide over her neck. It was stated in the complainant that somebody killed his elder mother (Badi Maa) and from the house, two silver anklets (silver Kara worn on feet) and the jewelery Mandlaya (worn in the neck) and a locket containing murti (idol) of Hanuman Ji were missing; they were made of gold; besides the above articles, one nose pin was also missing and the goods of the house were lying scattered. The complainant requested that legal action be taken against the guilty and case be registered.
4. The above said complaint was presented on 9th August, 2003 at 3.50 P.M. and on the basis thereof, FIR was registered at Police Station, Murlipura Distt. Jaipur on 9th August, 2003 at 4.15 P.M.
5. The above said FIR was investigated. During investigation both the appellants were nominated as accused and were sent for the trial.
6. The report of investigation under Section 173(3) Cr.P.C. was filed in the Court of concerned Magistrate. The said report alongwith the accused were committed to Court of Sessions and the trial was entrusted to Additional Sessions Judge (Fast Track) No. 1 Jaipur City, Jaipur. Both the appellants were charged for offence under Section 302/34 and Section 394/34 IPC.
7. The first charge stated that on the intervening night of 7th and 8th August, 2003 in plot No.A 152, murlipura Jaipur, the complainant saw that both the feet of Bidami Devi were chopped off and neck was strangulated by tying Lungdi around her neck and thus, with common intention, present appellants had committed offence of murder, making them liable substantively for offence under Section 302 IPC or in alternate for offence under Section 302/34 IPC. For removal of ornaments of Bidami Devi, appellants were charged for offence under Section 3
