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2011 Supreme(Ori) 209
2011 (II) OLR (SC) — 526
ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.
CRIMINAL APPEAL NO.1327 OF 2008
Mustkeem @ Sirajudeen ... Appellant
Versus
State of Rajasthan ... Respondent
WITH
Criminal Appeal No.1369/2008; and
Criminal Appeal No.1370/2008
Decided on 13th July, 2011.
Headnote:1. INDIAN PENAL CODE, 1860 - Sec. 302/34 - Arms Act - Sec. 4/25 - Conviction under - Appeal before Apex Court - Prosecution case is based on circumstantial evidence - Evidence of P.W. 8, P.W.9 and P.W.10 - Their evidence that they had intimated P.W.8 a day prior to the date of incident that they would eliminate 'RP' is also not trustworthy - On account of several discrepancies appearing in their evidence, P.W.8 is absolutely an hearsay witness - Evidence of P.W.9 and P.W.10 does not establish the intention on the part of the accused to murder 'RP' - No enmity could be established on record between them and there was nothing which warranted to eliminate 'RP' - Recovery of the weapons on disclosure of the appellants itself becomes doubtful - Prosecution failed to establish as to why none of the local persons were called to be the witnesses - The conduct of the prosecution appears to be extremely doubtful and renders the case as concocted, to falsely implicate the appellants - Recovery memos also reflect that there were overwriting on the same which has not been explained by P.W.16 - Held, it would not be safe and proper to hold the appellants guilty for commission of offence. (Paras - 22 to 24)
2. CIRCUMSTANTIAL EVIDENCE - Where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt
of any other person - Conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence. (Para - 25)
3. EVIDENCE ACT, 1872 - Sec. 27 - What is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused - Burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence - What is admissible under the section is the information leading to discovery and not any opinion formed on it by the prosecution.
(Para - 27)
JUDGMENT
DEEPAK VERMA, J. — 1. This judgment and order shall govern disposal of Crl. A. No. 1369 of 2008 Nandu Singh @ Vikram Singh Vs. State of Rajasthan and Crl. A.No. 1370 of 2008 Arun Joseph Vs. State of Rajasthan as they arise out of the common judgment and order recorded by Division Bench of the High Court of Judicature for Rajasthan, Bench at Jaipur in D.B. Criminal Appeal No. 125/2005, 210/2005 and 1176/2005 decided on 03.12.2007, arising out of judgment and order of conviction recorded by Special Judge SC/ST (PA Cases) Jaipur in Sessions Case No. 02/2004 decided on 10.02.2005.
2.The trial court vide its judgment and order held the Appellants guilty for commission of offence under Section 302/34 of the Indian INDIAN PENAL CODE (in short ‘IPC’) and awarded life imprisonment with fine of Rs. 1000/- and in default of payment of fine further three months simple imprisonment and under Section 4/25 of the Arms Act one year R.I. and fine of Rs. 500/- and in default of payment of fine to further suffer one month imprisonment. The sentences were directed to run concurrently.
3.Feeling aggrieved by the said judgment, Appellants had preferred three appeals as mentioned hereinabove before the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench. The High Court, after considering the matter from all angles also came to the conclusion that no interference was called for against the said judgment of the trial Court and dismissed the appeals. In all, there were five accused out of which one Abrar was declared absconder and Abdul Wahid was acquitted by the Trial Court. Thus these appeals by the three convicted accused.
4.We have, accordingly, heard learned Counsel Mr. R.K. Kapoor, Ms. Shweta Kapoor, Mrs. Mansi Dhiman for the Appellants and Mr. Milind Kumar, Mr. Imtiaz Ahmed and Ms. Archana Pathak Dave for the Respondent State and perused the record.
5.Facts giving rise to the prosecution story, ultimately resulting in conviction of the Appellants, are as under:-
On 24.07.2003 at 5.45 p.m. Diwakar Chaturvedi SHO Police Station Vidhan Sabha, Jaipur received telephonic information about murder of a person in Kathputli Colony. After recording the said information in Rojnamcha, SHO rushed to the spot with police squad and found a person lying dead in a pool of blood.
6.On inquiries being made P.W.3 – Ashok Kumar, present at the place of occurrence informed Diwakar that the name of the deceased was Ram Pal Yadav. He further informed that the murder of Ram Pal Yadav has been caused by Mustkeem, Nandu and one other person by inflicting injuries on his person with sword and knife. The third person was later identified as Arun Joseph. On receiving the said information SHO recorded the Parcha Bayan of P.W.3 – Ashok Kumar and registered a case under Section 302/120B of the IPC. Thus the investigation machinery was set into motion. Dead body was sent for autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed.
7.Charges under Section 302/149 IPC and Section 4/25 of the Arms Act were framed against the accused. They denied the charges and prayed for being tried. The prosecution in support of its case examined 19 witnesses. The statements of the Appellants under Section 313 of Cr. P.C. were recorded, who claimed innocence and prayed for their acquittal.
8.As per the post mortem report Ex. P.34, deceased Ram Pal Yadav had received 38 ante mortem injuries and from the evidence of P.W.13 - Dr. Sumant Dutta, cause of death was stated to be due to haemorrhagic shock as a result of injuries to chest, lungs and skull and on account of excessive bleeding. In the light of the Post Mortem Report and the evidence of P.W.13 – Dr. Sumant Dutta, it cannot be disputed nor has been disputed before us that deceased had met with homicidal death.
9.Now the question that arises for our consideration in this and the connected appeals is as to who were the
