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NAND RAM versus STATE

High Court of Rajasthan

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NAND RAM v STATE - CRLA Case No. 437 of 2002 [2007] RD-RJ 3541 (24 July 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR.

JUDGMENT

Nand Ram vs. The State of Rajasthan. 1. D.B.Cri. Jail Appeal No.437/2002

Under Section 383 Cr.P.C. against the judgment dated 28.07.2001 passed by the Addl. Sessions Judge No.2,

Sriganganagar in Sessions Case

No.101/1995. ....... 24th July, 2007.

Date of Judgment:

PRESENT

HON'BLE MR.JUSTICE BHAGWATI PRASAD

HON'BLE MR.JUSTICE MUNISHWAR NATH BHANDARI

Mr.Sanjay Mathur ] for the appellant.

Mr.Vipin Mankad ]

Mr.JPS.Choudhary, Public Prosecutor.

BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)-

The present appeal has been filed by accused Nand Ram being aggrieved by the decision of the court of Addl.Sessions Judge

No.2, Sriganganagar in Sessions Case No.101/1995 dated 28.07.2001.

Initially the case was started against the two accused persons , i.e. Nand Ram and Devaram. Deva Ram absconded, therefore, the trial was separated of the two accused.

The prosecution was initiated on the basis of a report lodged by the complainant. According to the complainant, he was owner of 100 goats. His son Phooliya and Madan used to graze the herd of goats. On 25.01.89 when he went to enquire about the goats and the sons he saw that his sons Phooliya and Madan were not there and the goats were also not there. Only small goats were visible.

When he started searching for his sons he saw his son Phooliya lying dead on the sand dune. Being frightened he did not go close. Then he hired a tractor and went to the Police Station to lodge the report where FIR No.27/1989 was registered.

After usual investigation, charge sheet was filed . The case was committed to the court of Sessions, from where the case was transferred to the trail court. The trial Judge framed charges against the accused persons under Sections 302, 394, 397, and 398

IPC. The accused denied the charges and claimed to be tried.

The prosecution examined 14 witnesses. The accused was examined under Section313 Cr.P.C. During the trial both the accused disappeared. Later, accused Nand Ram appeared and after his appearance the trial proceeded. The trial Judge, after considering the case of the prosecution, found that there is no direct evidence.

The case is based on circumstantial evidence and he considered the nature of circumstances relied on by the prosecution.

According to the trial court, one of the circumstance was extra judicial confession. But since the confession , as alleged,was made in the presence of the police party the same was said to be inadmissible. Another circumstance pressed by the prosecution against the accused was recovery of a shoe of the deceased at the instance of accused Nand Ram. The rial court found that though the recovery can be held to be at the instance of accused Nand Ram, but this is not a strong circumstance. Next circumstance pressed into service against the accused by the prosecution is a half burned ' bidi'.

The trial court has held that since the 'bidi' is of the same origin of whose bundle has been found with the accused, therefore, this may have some linking evidence. Then the prosecution has pressed into service recovery of a bowl on which name of Kana Ram is engraved and a container containing 'gurh' and tea leaves which the deceased used to keep with him to prepare tea. The complainant has admitted that he has forgotten to mention that these articles were missing when he lodged the first information report.

Next circumstance pressed into service by the prosecution is the foot mold of slipper worn by accused Nand Ram.

Therefore, this was held to be connecting evidence. The presence of

Nand Ram had been sought to be established by the prosecution by recovery of a purse where photograph and identification of Nand

Ram has been recovered from the scene of occurrence and, therefore, the learned trial Judge came to the conclusion that since the presence of accused is established at the scene of occurrence and recoveries have been made from him of a bowl on which complainant's name is there, foot mold tally with his foot and further human blood has been found on his chadar and thus convicted the accused appellant under Section 302/34, 394, 397 and 398 IPC and sentenced him as under,- 'The accused has been convicted under Section 302/34

IPC, to undergo imprisonment for life and a fine of Rs.1,000/- and in default of payment of fine, to further undergo 3 months' simple imprisonment . Under Sections 394, 397 and 398 IPC to ten years'

R.I. and a fine of Rs.750/ and in default of payment of fine, to further undergo simple imprisonment for two months.'

The learned counsel for the appellant urged that the circumstances relied on by the trial court are not sufficient to connect the accused to the crime. The human blood found on the 'chadar' have not been connected to the deceased. Generally , agriculturists get blood stains on their clothes because they are prone to get injuries. Therefore, chadar has to be excluded from the array of consideration. The connection of foot mold is too weak an evidence because firstly it was not of the foot and it was of the slipper. The circumstances in which the foot prints are taken are suggestive of the fact that the foot mold were not kept preserved and on a sand dune where the winds blow the foot mark rarely remain safe. In any case , the science of identification, foot mark has been held by the

Supreme Court to be in a rudimentary stage and, therefore, the connection of the accused cannot be established, as has been sought to be done by the prosecution.

Another recovery which has been pressed into service is the recovery of the purse which has been made vide Ex.P/17. This recovery is said to have been made on 25th Janury, 1989. This recovery was not at the instance of the accused. Neither it was recovered in the presence of the accused Nand Ram. The accused has been arrested on 26.01.89 which does not appear to be a correct exposition of the things and in that view of the matter recovery of the purse from the scene of occurrence would ipso facto be of any consequence to establish the connection of the accused with the crime. The recovery of the bowl and the container of 'gurh' and tea leaves are hardly of any consequence because they have not been reported to have been missing in the first information report and they hardly have a connection with the murder. The recoveries of the shoe and part of the 'bidi' have also been wrongly pressed into service by the trial court against the accused persons.

Per contra, the learned Public Prosecutor, argued that the circumstance indicate that the accused has committed the crime as has been narrated by the prosecution. The foot molds, the bowl etc. which have been with the deceased , were recovered from the accused Nand Ram therefore, without any explanation their presence in his custody show that he had stolen the same and the purse establishes his presence on the scene of occurrence.

We have heard learned counsel and have given our thoughtful consideration to the facts obtaining on record.

The circumstances indicated herein above present a complex picture. The charge against the accused is of a serious nature and in that background we have to see whether the circumstances as has been pressed , make a complete chain to establish that the accused had committed the crime.

The circumstances of recovery of one shoe and part of a burnt bidi, in our opinion, hardly establish anything. It cannot be accepted that an accused will concede one shoe, for what purpose is not clear and, therefore, recovery of shoe has no bearing on the facts of the case . Part of the burnt ' bidi' if tallys with the brand of the 'bidi' used by the accused hardly establish that no other person who used the same brand had visited the scene of occurrence.

Therefore, that has to be excluded . Evidence of foot molds are hardly of any consequence because the science is not certain about its conclusiveness . Therefore , the foot marks are also to be excluded, more particularly in the background that it was after considerable time that the foot molds were picked up and the foot molds , on a sand dune where the winds blow, then sanctity cannot be attached to the lifting of the foot molds. The recovery of bowl and container of 'gurh' and tea, said to have been made from the person of the accused, the price of the articles and their nature do not by itself show that they were such kind of things which would be such as could be stolen. The arrest of the accused is after the inspection of the site and until then there is no whisper in the prosecution case that these articles are missing. Their missing having not been mentioned in the FIR in this background, this fact assumes importance . The recovered articles were not put for identification. Unless the complainant was made to identify these articles, out of a lot of articles, they cannot be considered to be safe recoveries to be pressed against the accused. Merely by the engraving of the name, it cannot be said that they belong to the complainant parties. When all these circumstances are not believed then, mere recovery of a purse with identity card of the accused, may at best establish that the accused had visited the site but that would not connect the accused with the crime.

In a case based on circumstantial evidence unless the chain of circumstance link the accused with the crime, it is not safe to connect the accused with the crime and in that background we feel that the accused appellant is entitled to the benefit of doubt and in that view of the matter we accept the appeal of the appellant and hold that the circumstances are not as good , as has been made out by the prosecution, and in that background the accused is not liable to be convicted for the offences charged against him.

In that background, the accused is entitled to the benefit of doubt and he is acquitted of the charges levelled against him. He is behind the bars, he should be released forthwith, if not required in any other case.

(MUNISHWAR NATH BHANDARI), J. (BHAGWATI PRASAD), J.

L.George


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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