Sanni @ Naresh And Ors vs State Of Rajasthan

Accused Appellants,"Conviction for offences under

Sections",Sentences,Default Sentences

Ayub Teli and Sunny @

Naresh",364 I.P.C.,"Ten Years Rigorous imprisonment with fine of

Rs.5,000/-",3 months’ S.I.

,302/34 I.P.C.,"Life imprisonment with fine of Rs.10,000/-","6 months’ Additional

S.I.

1978 SCC (Crl.) 528 : Chandran Vs. State of Tamil Nadu;,,,

RLW 1997 (3) SC 442 : Mohd. Aman & Anr. Vs. The State of Rajasthan.,,,

They thus, implored the court to accept the appeals, set aside the impugned judgment and acquit the accused appellants of the charges.",,,

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned counsel for the appellants. He urged",,,

that the two acquitted accused were bearing ill-will and jealously against the child Sameer as they were suspecting that the child’s mother had,,,

indulged in voodoo/black magic due to which, their young sons lost their lives. He contended that fueled by the motive of taking revenge, the two ladies",,,

engaged the appellants herein for killing Sameer, son of Saleem P.W. 9 and Shamim P.W. 13. The accused-appellants kidnapped the child Sameer",,,

after the school hours. They were seen by Kishore Singh with the child standing besides their motorcycle. As per the learned Public Prosecutor,",,,

simply because Kishore Singh could not identify the child present on the motorcycle, the accused cannot seek exoneration urging that by virtue of",,,

Section 106 I.P.C., the burden would shift on to the accused to prove the identity of the child whom they were carrying with them on the motorcycle",,,

more particularly as the child was carrying a school bag similar to that of Sameer. He further urged that the knife recovered from the house of the,,,

accused Ayub in furtherance of the voluntary information provided to him to the Investigating Officer was forwarded to the FSL for serological,,,

examination and the same tested positive for presence of the same blood group as that of the deceased vide FSL report (Ex.P107). He further urged,,,

that the accused Sunny @ Naresh gave a voluntary information under Section 27 of the Evidence Act (Ex.P99) to the Investigating Officer in,,,

furtherance whereof, the school bag of the deceased which had been thrown away in a dirty water ditch, was recovered vide seizure memo (Ex.P33).",,,

The bag contained the text books and the note books of the deceased. The labels bore the name of Sameer. The writings available on the text books,,,

and the note books affirmatively establish the fact that the same were of the deceased child and as such, as per learned Public Prosecutor, the failure",,,

of the accused appellant Sunny @ Naresh to offer any explanation as to how he came into possession of the bag of the deceased conclusively,,,

establishes the prosecution case that he is responsible for the murder of the child. He thus, implored the Court to dismiss the appeals and affirm the",,,

impugned judgment.,,,

We have given our thoughtful consideration to the submissions advanced at the Bar and have minutely sifted through the material available on record.,,,

Though the prosecution portrayed numerous circumstances against the accused in its quest to bring home the charges but three of the most significant,,,

circumstances viz. motive, call detail records and the footprint impression reports were disbelieved and discarded by the trial Court because the",,,

prosecution could not lead appropriate evidence to prove these significant links in the chain of circumstances. We have carefully examined the findings,,,

of the trial Court in this regard and express our satisfaction with the same because they are based on a proper discussion and evaluation of the,,,

evidence available on record. In addition to discarding the two scientific reports, the trial Court also proceeded to acquit the two women accused who",,,

were primarily imputed with the motive for having the child murdered. The prosecution alleged that these ladies engaged the appellants herein as,,,

henchmen to kidnap and kill the child to seek revenge for the untimely deaths of their own sons. Apparently, the appellants herein had no direct reason",,,

or motive to kill the child because they were not related to him in any manner. As the two accused who were attributed the motive of murdering the,,,

child stand acquitted by the trial Court, the prosecution theory of motive would not survive as against the accused-appellants as a natural consequence",,,

of this conclusion of the trial Court. Thus, the only material pieces of evidence which would remain in vogue against the appellants herein would be the",,,

circumstance of last seen and recovery of bag against the accused Sunny @ Naresh and the circumstance of recovery of the bloodstained knife,,,

against the accused Ayub. We firstly proceed to examine the evidence of last seen which the prosecution proposed against the accused Sunny @,,,

Naresh. This circumstance was sought to be proved through Kishore Singh P.W.2 who was working as a salesman at the liquor shop in Malasar. He,,,

stated that the accused Sunny @ Naresh came to his shop on a motorcycle and purchased a bottle of liquor from his shop on the day the child was,,,

murdered. He was accompanied by another man. A child was also standing besides the motorcycle which had been parked at some distance from the,,,

liquor shop. The Investigating Officer got conducted test identification parade of the accused-appellant Sunny @ Naresh during investigation in which,",,,

the witness Kishore Singh correctly identified him as the person who had come to the shop for buying liquor on the fateful day. However, what",,,

remains to be seen is as to whether merely because of this allegation, would the Court be justified in drawing an inference that the child who was",,,

present on the motorcycle was none other than the deceased Sameer.,,,

Law is well settled that in a criminal case, the prosecution is required to prove its case by leading clinching and convincing evidence which establishes",,,

the particular fact beyond all manner of doubt. In this background, if at all the prosecution was desirous of proving the fact that the deceased child",,,

was the one who was seen by Kishore Singh standing besides the motorcycle of the accused Sunny @ Naresh, some evidence to this effect had to be",,,

brought on record. On the contrary, when cross examined, Kishore Singh categorically stated that he did not see the face of the child. In this",,,

background, we are of the opinion that the fact regarding identification of the accused Sunny @ Naresh by the witness Kishore Singh does not give",,,

rise to any inference of culpability against this accused. The accused-appellant Sunny @ Naresh was arrested on 05.01.2011. During evidence, the",,,

Investigating Officer failed to disclose the incriminating material collected by him on the basis whereof he arrested this accused. It is mentioned in the,,,

arrest memo (Ex.P89) that the accused was advised to keep his face covered. However, the obligation to ensure that the face of the accused",,,

remained covered would be that of the Investigating Officer. Apparently, in view of the language used in the arrest memo, it becomes seriously",,,

questionable that the accused was actually kept Baparda after his arrest. In view of these significant findings, the evidence of test identification looses",,,

significance. For reaching to this conclusion, we are gainfully supported by the following observations made by the Supreme Court in the case of",,,

Musheer Khan (supra):-,,,

“31. In the instant case A-4 was apprehended on 05.12.2000 and was arrested on 06.12.2000 and the identification parade was held on 10.12.2000.,,,

It is admitted that A-4 was kept in open police custody for all these days from 6th December to 10th December, 2000 prior to his identification. About",,,

the identification by him PW-3 deposed that he recognized all the three persons in Court even though the fact remains that out of the three accused,,,

persons A-7 absconded and never faced trial. This is a clear discrepancy in the evidence of PW-3 about identification. It is an admitted position that,,,

A-4 is bald but in his evidence PW-3 admitted that during investigation the heads of the none of the persons were covered. Though in his evidence,,,

PW-3 has said that the persons were covered with a blanket upto the neck but PW-12, who held the identification parade, in his cross examination",,,

admitted that there is no reference of blanket in Ext. P-14 and Ext. P-16 which are the reports of T.I. parade of A-4 and A-5 respectively. This is a,,,

vital contradiction between the versions of witnesses identifying and the person conducting the T.I. Parade.â€​,,,

Thus, once the evidence of identification of the accused Sunny @ Naresh by Kishore Singh is eschewed from consideration, the only evidence which",,,

remains against him, would be that of the recovery of bag. As we have already discussed above, the bag was not got identified by the parents of the",,,

deceased in their evidence and thus, there is no substantive evidence on the record to show that the bag, which was recovered at the instance of the",,,

accused Sunny @ Naresh, was actually that of the deceased child.",,,

In addition to the above, we cannot loose sight of the fact that the incident took place on 22.12.2010; the school bag of the deceased was recovered on",,,

12.1.2011 at 3.30 PM vide recovery memo (Ex.P33) dated 12.1.2011. The bag had been allegedly thrown by the accused in a dirty water ditch and,,,

was dredged out therefrom. Thus, apparently the bag remained submerged underwater for almost 21 days and as a consequence, the possibility of the",,,

handwritings on the bag being preserved after this long duration under water is very bleak. Therefore also, we are not convinced that the recovery of",,,

the bag was effected from the accused Sunny @ Naresh in a faithful manner.,,,

So far as the accused Ayub is concerned, as per the prosecution case, the solitary piece of evidence which survives against him after the other",,,

findings of the trial Court (narrated above) would be that of the recovery of bloodstained knife. The incident is of 22.12.2010. The accused Ayub was,,,

arrested on 2.1.2011 i.e. after more than ten days of the incident. The recovery was made as late as on 12.1.2011. It is thus absolutely impossible to,,,

believe that accused would securely retain the worthless incriminating article i.e. knife and that too with the bloodstains intact so that the same could,,,

be recovered and used against him as evidence at a later stage. Thus, we are not impressed with the arguments of the learned Public Prosecutor and",,,

hold that the recovery of knife claimed to have made by the Investigating Officer at the instance of the accused Ayub is totally unbelievable.,,,

It is a well settled principle of criminal jurisprudence that where the prosecution case rests totally on circumstantial evidence, the inference of the guilt",,,

can only be drawn against the accused when all the incriminating facts and circumstances are found to be incompatible with the innocence of the,,,

accused or the guilt of another person. Hon’ble the Supreme Court considered an identical set of circumstances in the case of Mustkeem vs.,,,

State of Rajasthan, AIR 2011 SC 2769 and held as below:",,,

“13.It is fully established that the prosecution case is based on circumstantial evidence. In this view of the matter, we have to see if the chain of",,,

circumstances was so complete so as to unerringly point the finger only at the Appellants as perpetrators of crime. Before delving into the legal,,,

analysis, however, we would like to examine the statements of P.W.8 and P.W.10 in brief .",,,

14.As per the prosecution story, Appellants Mustkeem and Arun had met P.W.10 - Chittar a day before the occurrence, in whose house deceased",,,

Ram Pal Yadav, was residing as a tenant, for last 5 to 6 years and he deposed that Appellants Mustkeem and Arun had told him that, that day it would",,,

be the last visit of Ram Pal and he will not come to his house again. Similar is the evidence of P.W.9 - Lali Devi, wife of P.W.10. She has repeated",,,

the same version as had been deposed by P.W.10- Chittar.,,,

P.W.8 - Smt. Supyar deposed that Mustkeem, Arun and Nandu used to visit Ram Pal Yadav regularly as all of them were dealing in illicit liquor",,,

trade. On coming to know from Lali Devi that Arun, Mustkeem and Nandu were keen to eliminate Ram Pal Yadav, she had telephonically asked him",,,

to meet her at the earliest. When deceased Ram Pal Yadav met Smt. Supyar, she informed him about the intentions of the accused. She also told him",,,

that Arun and Mustkeem both had said that it would be the last visit of Ram Pal Yadav to her house as they were planning to eliminate him.,,,

16.Thus, from an appraisal of the evidence of P.W.8, P.W.9 and P.W.10, the Trial Court and the Division Bench of the High Court ruled that",,,

prosecution has been able to establish that deceased Ram Pal Yadav and Appellants were all involved in illegal trade of liquor and a day prior to the,,,

date of incident, Arun and Mustkeem had expressed their intentions to eliminate Ram Pal to P.W.9 and P.W.10.",,,

17.High Court while considering the Appellants' appeal found this factor as one of the incriminating circumstances to eventually hold the Appellants,,,

guilty for the aforesaid offence.,,,

The other circumstance found against the Appellants by High Court was that, on the basis of the disclosure statements of the Appellants, weapons",,,

alleged to be used in the commission of offence and clothes stained with human blood were recovered. In its Judgment, the High Court has discussed",,,

in extenso the effect of Section 27 of the Indian Evidence Act (hereinafter shall be referred to as 'Act') and subsequent discovery of the material,,,

objects thereafter.,,,

On the basis of the report of the serologist, it has come on record that traces of AB blood group were found on the pants and baniyan of the",,,

deceased. The prosecution has also averred that Sword and clothes stained with human blood group AB were also recovered at the instance of,,,

Appellants, from the places shown by them and known only to them and none others. On account of aforesaid circumstances, the High Court was of",,,

the opinion that the chain of circumstances was complete and the completed chain of circumstances pointed the finger for commission of the said,,,

offence only by the Appellants.,,,

…,,,

The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was,,,

connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood,,,

found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to",,,

the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered",,,

weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. â€​,,,

In the wake of the discussion made herein above, we are of the firm opinion that the prosecution did not lead evidence of clinching worth to prove the",,,

complete chain of circumstances pointing invariably towards the guilt of the accused. As we have held that the prosecution evidence in this regard is,,,

doubtful, the benefit thereof has to be extended to the accused. We feel that the trial Court proceeded sheerly on conjunctures and surmises while",,,

recording the guilt of the accused-appellants by the impugned judgment dated 9.3.2017 which does not stand to scrutiny.,,,

The appeals are thus allowed. The conviction of the appellants as recorded by learned Additional Sessions Judge, Ratangarh, District Churu vide",,,

judgment dated 9.3.2017 in Sessions Case No.3/2011 is hereby quashed and set aside and the appellants are acquitted of the charges. The appellants,,,

are in jail. They shall be released from custody forthwith if not wanted in any other case.,,,

However, keeping in view the provisions of Section 437-A Cr.P.C., the accused-appellants are directed to furnish a personal bond in the sum of",,,

Rs.15,000/- each and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect",,,

that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the",,,

Supreme Court.,,,