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2013 Supreme(Raj) 126
RAJASTHAN HIGH COURT
HON'BLE GOVIND MATHUR, J. HON'BLE BANWARI LAL SHARMA, J.
Phoosa Ram & Anr.
Versus
State of Rajasthan
D.B. Criminal Appeal No.117 of 2010, decided on 20.03.2013
J.S.Choudhary, Senior Advocate assisted by Tarun Dhaka, for Appellants;
K.R. Bishnoi, Public Prosecutor, for State;
Sukhdev Vyas & Narpat Singh, for Complainant
Headnote:Penal Code, Sec. 302 — Conviction on the basis of circumstances — Appellants arguments that there are missing links in the circumstances — What ever stated by the prosecution witnesses is not correct and the entire evidence adduced appears to be implanted — Some discrepancy exists in the statements given by the witnesses — Deceased was last seen in the company of appellant has not been established — Held — Reasonable doubt exists in view of the discussions made about the evidence on record pertaining to the recovery of bones and other articles — Reasonable doubt existing in accepting the prosecution case is sufficient to acquit the accused appellants. (Paras 82 & 83)
Appeal allowed.
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vihy Lohdkj dhA ¼in la[;k 82 o 83½
Hon'ble MATHUR, J.—This appeal is directed against the judgment and order dated 25.2.2010 passed by learned Additional Sessions Judge (fast Track) No.2, Jodhpur, in Sessions Case No.7/2006. By the judgment and order aforesaid learned trial court convicted and sentenced the accused appellants as under:-
u/S. 302 IPC – Imprisonment for life with a fine of Rs.5000/- and in default of payment of fine to further undergo six months rigorous imprisonment.
u/S. 364 IPC – Ten years' rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo two months rigorous imprisonment.
u/S. 201 IPC – Seven years rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo two months rigorous imprisonment.
2. The factual matrix giving rise to the present appeal is that at 07:30 PM on 24.9.2005, a written report was submitted by Shri Rajuram (PW-7) to the Station House Officer, Police Station Khedapa with assertion that his brother Deeparam son of Natharam, resident of Bawdi, aged 35 years was taken on motorcycle by Phoosa Ram on 22.9.2005 at about 07:00 PM from the hotel of Shriram and this movement was seen by Heeraram, Lumbaram, Shantilal and Ghanshyam. Subsequent thereto he saw him while passing through Anwana crossing. At about 10:30 PM Premaram saw Deeparam sitting behind his hotel with Phoosa Ram and Baburam. No whereabouts of his brother were noticed thereafter.
3. On basis of the report aforesaid, a case was registered and investigation commenced. Alleging intentional slow pace with the investigation, the informant Rajuram preferred a Habeas Corpus Petition (DB Habeas Corpus Petition No.6124/2005) before this Court, wherein after recording dissatisfaction with the investigation made, a direction was given to the Inspector General of Police, Jodhpur Range, Jodhpur to personally look into the matter and ensure adequate progress. The investigation of the case thereafter was handed over to C.I.D (Criminal Branch), Jodhpur by the Police Station Khedapa on 3.3.2006.
4. The investigating agency, during the course of investigation, unearthed a tubewell on 21.3.2006 at the agricultural field under the joint tenancy of the accused appellants with certain other persons. Necessary report of such unearthing was prepared as Ex.P/3. The tubewell aforesaid was subjected to high air pressure cleaning on 24.5.2006 and as per the prosecution that resulted into flushing out of several bones of human body, clothes of Shri Deeparam, his pen, wallet and certain documents including three electricity bills. A video recording of process of unearthing of tubewell on 24.3.2006 and its cleaning by way of putting air pressure was also made.
5. After completion of investigation a police report was filed before the court of learned Judicial Magistrate, First Class, Pipar City, and the case being session triable, was committed to the court of Sessions, Jodhpur. The case then was transferred to the court of Additional Sessions Judge (Fast Track) No.2, Jodhpur. After hearing, the court framed charge against the accused appellants for commission of offences punishable under Sections 364, 302 or 302/34 and 201 I.P.C., on denial of the same trial commenced as desired.
6. To establish the charge, the prosecution made a chain of circumstances with following links:-
– Deceased Deeparam was seen on 22.9.2005 at about 07:00 PM at the tea shop of Shriram by Sarva Shri Shantilal (PW-1), Heeraram (PW-2), Shriram (PW-3), Ghanshyam (PW-4), Lumbaram (PW-5), Manglaram (PW-6) and Baluram (PW-9);
– Rajuram (PW-7), brother of deceased Deeparam, saw him with accused at Bawdi Bus Stand in between 9-10 PM on 22.9.2005;
– At the hotel of Shri Premaram, Premaram saw deceased Deeparam in company of the accused persons at about 10:00 PM;
– Deceased Deeparam was lastly seen in company of the accused persons on way by Bhuraram (PW-13) at about 11:00 PM on 22.9.2005;
– Verification of the place of occurrence by the accused perso
