Mobin vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Assistant Station Master, Ramganjmandi, on 15.8.2009, had sent an information (Exhibit-P/4) to Government Railway Police, Jhalawar Road that on Platform No. 1 of Railway Station, Ramganjmandi a dead body of unidentified person was spotted by Deendayal (P.W.2) sweeper (Safaikaramchari). The said information was received by Incharge of Government Railway Police, Jhalawar Road on 15.8.2009 at 8:00 AM, upon which Nawal Kishore (P.W.1), Incharge GRP had submitted a written report (Exhibit-P/3) to SHO, Government Railway Police, Kota for registration of case of murder. The written report (Exhibit-P/3) on the basis of which a formal FIR (Exhibit-P/13) bearing No. 68/2009 was registered at Police Station GRP, Kota, when translated into English reads as under:--

"To

SHO Saheb GRP Police Station, Kota.

Subject: for taking legal action

Sir,

It is submitted that today on 15.8.2009 at about 8:00 AM, Officer on duty Assistant Station Master, Surendra Kumar Gupta, Railway Station Jhalawar Road had sent a written information that Officer Incharge duty ASM Ramganjmandi informed on telephone that a person had been found dead at platform No. 1. Upon this information, Incharge Police Post Nawal Kishore, Head Constable No. 36 along with police party reached at Railway Station Ramganjmandi and at the spot examined the dead body. The name of deceased has been found to be Dilip and for a long period, he was begging at the railway station. On the neck, chest and abdomen and right pelvis injuries with incised weapon have been noticed. Unidentified beggar has been murdered by somebody with incised weapon.

Applicant Nawal Kishore HCN 36 I/C GRP, Jhalawar Road Date : 15.8.2009"

The case of the prosecution is that the appellant on the night of 15.8.2009, with an incised weapon had committed murder of Dilip beggar. It is further case of the prosecution that during investigation, dagger (Kataar) having a long blade was recovered and thus, he had committed offence under Section 4/25 of Arms Act. The prosecution in all had examined fifteen witnesses. It is the case of circumstantial evidence. To secure conviction of the appellant, the prosecution has relied upon following incriminating circumstances:

"(a) The appellant Mobin @ Bhuria was last seen with the deceased by Mohan Lal (P.W.3), Kunwar Singh (P.W.7) and Durgesh (P.W.12).

(b) That weapon of offence i.e. dagger vide seizure memo Exhibit-P/10 was recovered from the appellant in pursuance of disclosure statement (Exhibit-P/15).

(c) That on 23.8.2009, at 7:00 PM at the time of arrest of the appellant, shirt and pant were taken into possession which were having washed stains of blood.

(d) According to the report of FSL (not exhibited) clothes of the deceased, weapon dagger recovered from the accused and clothes recovered from the accused, were having human blood of origin Group B."

Relying upon above incriminating circumstances, the court of Additional Sessions Judge (Fast Track) No. 1, Kota, vide impugned judgment dated 1.8.2011 convicted the appellant for the offences under Sections 302 IPC and Section 4/25 of Arms Act and sentenced the appellant as under:--

"U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month S.I.

U/s.4/25 Arms Act- to undergo six months R.I. and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo seven days S.I."

Aggrieved against his conviction and sentence, the appellant has sent the instant appeal through Jail to assail his conviction and sentence.

Dr. Narendra Bhushan Joshi (P.W.14) on 16.8.2009 at 11:45 AM performed autopsy on the dead body of Dilip son of unknown, aged 60 years and as per Post Mortem Report (Exhibit-P/22) had found following injuries on his person:--

"(i) Stab wound 3x2cm, 9cm above and 3cm lateral to midline right side.

(ii) Stab wound, 3x2cm, left side of neck just over to clavicle.

(iii) Stab wound 3x2cm, over clavicle right side.

(iv) Incised wound below clavicle right side, 5 x 2.5cm.

(v) Stab wound, right thigh, upper part 1cm linear muscle deep."

As per opinion of the doctor, the cause of death was Coma as a result of multiple injuries. It is to be noted that omentum vessels and gut in the present case were cut, abdominal wall had perforated and peritoneal cavity was full of blood.

Before we take notice of evidence of last seen, recovery of weapon and clothes, we shall have a quick glance over the testimony of remaining witnesses.

Nawal Kishore (P.W.1) stated in the court that on 15.8.2009, being Head Constable, on duty he was incharge of the police post Jhalawar Road. He had received information and after registration of case had examined the dead body and found injuries on the neck, chest, abdomen and right pelvis caused with incised wound. This witness further stated that after he had sent written report, case was registered and he had conducted inquest proceedings and got the post mortem conducted on the dead body. On 23.8.2009, SHO, GRP Kota arrested the accused appellant Mobin @ Bhuria vide arrest memo Exhibit-P/1. At that time, the accused was wearing washed blood stained pant and shirt. The said clothes were taken into possession vide memo Exhibit-P/2. This witness further stated that communication received by him from the Railway Station Master is Exhibit-P/4. In cross-examination, this witness stated that the clothes which were recovered from the accused have not been produced in the court. Thus, there is no identification of the clothes. Therefore, witness has not identified the clothes in the court which were seized by him.

Deen Dayal (P.W.2) being Sweeper stated in the court that on 15.8.2009 at about 7:00 AM, when he was sweeping the platform, he saw clothes scattered near pedestrian bridge and the beggar was lying there. After seeing the dead body, he informed the Station Master. This witness stated that he had attested the inquest (Exhibit-P/6). This witness admitted in the cross-examination that in the month of August, at 5:00-6:00 AM, there is sun light and at Ramganjmandi Railway Station is having two platforms.

Mahaveer Singh (P.W.5) stated in the court that on 23.8.2009, he along with Kalyan Sahai (P.W.13) SHO, GRP Kota had effected arrest of the accused vide memo Exhibit-P/1 and from the accused, one pant and shirt (washed) stained with blood were taken into possession (vide Exhibit-P/2). In cross-examination, this witness stated that clothes recovered have not been produced in the court. Thus, this witness has also not identified the clothes which were worn by the accused and were taken into possession at the time of arrest.

Kalu (P.W.8) stated in the court that he was posted as Pointsman in the Railways. He stated that on 14.8.2009, his duty was at the Ramganjmandi Station from 8:00 PM to 8:00 AM. This witness stated that the accused Mobin @ Bhuria used to sleep at the station and he was selling water bottles.

Surendra Kumar (P.W.9) stated in the court that being posted as Station Master at Jhalawar Road Station, he had given written information to the police regarding dead body found at the plotform.

Manish Jain (P.W.11) being Press Photographer had taken photographs of the dead body and the place of occurrence.

Banwari Lal (P.W.15) was incharge of the Malkhana and he has been examined to prove link evidence.

Kalyan Sahay (P.W.13) being investigating officer has proved various facets of investigation.

Having noted the testimony of above witnesses, we will now give gist of the evidence of last seen, recovery of weapon and recovery of clothes.

Mohan Lal (P.W.3) in the court stated that on 14.8.2009, he was having duty at Railway Station from 8:00 PM to 8:00 AM. The accused Mobin @ Bhuria was selling water bottles at the platforms. The accused Mobin @ Bhuria was seen smoking bidis along with beggar. Thereafter, he went to office. In the morning he learnt that the dead body of beggar has been found below the bridge. The dead body was covered with clothe. When clothe due to wind was removed, the passengers learnt about the presence of dead body. In cross-examination, this witness stated that accused Mobin @ Bhuria and the beggar used to stay together. He had informed Station Master that they were sitting together. Both used to remain together at the Railway Station. He had seen beggar and the present accused together from the last seven or eight years. This witness admitted to be correct that he had never seen them quarreling. This witness further stated that since they were always sitting together, there was no question of there having a fight.

Kunwar Singh (P.W.7) stated in the court that on 15.8.2009, in the night between 2:00 AM to 2:30 AM, he had seen the accused Mobin @ Bhuria smoking bidi along with the deceased Dilip.

Durgesh (P.W.12) was declared hostile to the prosecution. He was confronted by the learned Additional Public Prosecutor with the statement (Exhibit-P/12) recorded under Section 161 Cr.P.C. by the police. This witness in cross-examination stated to be correct that the accused was not seen by him. To be precise, this witness stated as under:--

This witness (P.W.12) in cross-examination rule out the presence of accused Mobin @ Bhuria on the night of the occurrence. Other two witnesses have seen the present accused appellant sitting along with the deceased beggar, who were smoking bidis. We cannot term this evidence as last seen, as it has come in evidence that daily accused appellant and the deceased beggar used to remain together. The dead body has been found below the bridge on the platform. The platform is a public place. Number of trains visit there. Otherwise also, public and railway staff loiter on the railway platform. Merely because the accused and the deceased were seen together smoking bidi, it cannot be said that the appellant was only person who was last seen with the deceased. This evidence cannot be used against the appellant as incriminating evidence.

Nawal Kishore (P.W.1) Head Constable has stated that on 23.8.2009, SHO, GRP Kota had arrested the accused Mobin @ Bhuria vide memo Exhibit-P/1 and at that time, accused was wearing one white pant and shirt and since they were having blood stains, same were taken into possession (Exhibit-P/2).

Mahaveer Singh (P.W.5) has also deposed to the similar effect. However, in memo Exhibit-P/2, it has been stated that on the right side of shirt below pocket washed stains of blood were found. Similarly washed stains of blood were found on the pant. The exact words in Exhibit-P/2 are as under:--

If the clothes were washed, then blood stains will not be sufficient to find origin of the blood and its group. Otherwise, if the accused had not washed clothes, it is unbelievable that from 15.8.2009 till 23.8.2009, he will be wearing the same clothes and will not change them. If the clothes were having blood stains, first tendency of the accused is to destroy these clothes or to conceal them. It is improbable and unnatural and unbelievable that accused will be wearing clothes stained with blood continuously for a period of eight days.

In the present case, recovery memo Exhibit-P/2 is only attested by Head Constable Nawal Kishore (P.W.1) and Constable Mahaveer Singh (P.W.5). No independent witness has attested the recovery memo Exhibit-P/2 of clothes worn by the accused. Thus to us, it is not safe to rely upon recovery of clothes. Furthermore, clothes were not produced in the court and witnesses to recovery memo, hence, have not identified the clothes.

Atar Singh (P.W.4) Constable in the court stated that in his presence police had recovered one dagger vide memo Exhibit-P/10. In the court, this witness stated that weapon recovered has not been shown to him. This witness stated that he was witness to the recovery memo because he is a police official and no independent witness was present. This witness further stated that he is not aware whether any independent witness was called or not. We shall reproduce the relevant portion of the testimony of this witness as under:--

Thus, the weapon recovered has not been got identified from the witness. Constable Rakesh Meena (P.W.6) had also attested memo Exhibit-P/10, whereby dagger was recovered. This witness in the cross-examination also admitted that weapon has not been produced in the court for identification and he became witness only because he is a police official. The exact words of the witness are as under:--

Therefore, in the present case, recovery of dagger (Kataar) has not been witnessed by any independent witness. Furthermore, dagger has been recovered in pursuance of disclosure statement (Exhibit-P/15), which is not attested by any witness.

A Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member relying upon the judgment of the Hon''ble Apex Court in Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 , held in the case of Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014, as under:--

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

Considering that in the present case, disclosure statement has not been attested by any witness and recoveries also witnessed by only police official and the fact that recovery has been effected from open and accessible place, we will not rely upon the recovery of weapon, especially when recovered articles were not got identified from the witnesses to recovery.

Thus, taking into totality of circumstances, we are of the view that the prosecution has failed to prove the chain of circumstances to arrive at the conclusion that the offence was committed by the appellant alone and by nobody else.

Consequently, as a matter of abundant caution, we shall extend benefit of doubt to the appellant. The appeal is accepted and the judgment of conviction and sentenced recorded by the trial court is set aside and the appellant Mobin @ Bhuria is acquitted of all the charges.

In view of above, we order that the appellant Mobin @ Bhuria be released forthwith, if in custody and not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Mobin @ Bhuria is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon''ble Apex Court.