Allowed

Ashok Kumar v. State of Rajasthan through Pp

Rajasthan HC3 Nov 2018CRLA/375/2015

Case brief

AI extract

What is this about?

A double bench of the Rajasthan High Court allowed criminal appeals against convictions. The court set aside the impugned order, acquitting the appellants because the trial court relied on an admissible extra-judicial confession and conjectures. The prosecution failed to prove the cause of death, recovery of clothes, or theft of jewelry beyond doubt, rendering the conviction unsustainable.

What did the court decide?

Impugned order of conviction and sentence set aside. Appellants acquitted. Madan Mohan released forthwith; Ashok Kumar's bail bonds discharged.

Ashok Kumar Vs State of Rajasthan through Pp — Murder and Culpable Homicide | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN

¶2

BENCH AT JAIPUR

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D.B. Criminal Appeal No. 412/2017

¶4

Madan Mohan S/o Shri Kajod Mal Panchal B/c Luhar, R/o Sarsop, Police Station Chauth Ka Barwada, District Sawai Madhopur, Raj. At Present In District Jail, Sawai Madhopur.

¶5

----Appellant

¶6

Versus

¶7

State Of Rajasthan Through P.p.

¶8

----Respondent

¶9

AND

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D.B. Criminal Appeal No. 375/2015

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Ashok Kumar son of Shri Shankarlal, by-caste Mali, resident of village Sarsop Police Station Chouth ka Barwara District Sawaimadhopur. At present in District Jail, Sawaimadhopur.

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----Accused-Appellant

¶13

Versus

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State Of Rajasthan Through Pp

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	----Respondent
For Appellant(s)	: Ms.Meenu Verma Mr.Rajesh Choudhary for Mr.Harendra Singh Sinsinwar
For Respondent(s)	: Ms.Sonia Shandilya, Public Prosecutor

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Order

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03/11/2018

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These appeals have been preferred against the order dated 24^th April, 2015 passed by the Additional Sessions Judge (Special Court), Sawai Madhopur (Raj.) in Sessions Case No.07/2011 (04/2011), by which, the accused-appellants have been convicted for the offences under Sections 302, 201 and 364 IPC and sentenced as follows :

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(2 of 8)

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[CRLA-412/2017]

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“ Accused Madan Mohan

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U/s 302 IPC:- Imprisonment for life and fine of Rs.5,000/-, in default of payment of fine further 03 months additional Simple Imprisonment;

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U/s 364 I.P.C.:- seven years R.I. and fine of Rs.3,000/-, in default of payment of fine further 03 months additional Simple imprisonment;

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U/s 201 IPC:- three years Simple Imprisonment and fine of Rs.1,000/-, in default of payment of fine further one month’s additional Simple Imprisonment;

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Accused Ashok Kumar

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For offence under Section 302 IPC to L.I. with fine of Rs.5,000/- and in default of payment of fine three months additional S.I.

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For offence under Section 201 IPC to three years S.I. with fine of Rs.1,000/- and in default of payment of fine one month Additional S.I.”

¶28

It is a case where a report was made to the police station on 19^th September, 2010 by Girraj Prasad Gurjar stating that Madan Mohan came for labour work, thus employed by him. The accused developed good relation with his family. He was treating complainant’s wife as sister and him as brother-in-law. The accused was thus given a room by him. The complainant’s brother Satyanarayan was an addict of liquor thus accused could develop friendship with him. The accused had taken deceased Satyanarayan for a movie after informing complainant’s sister Santosh. The deceased did not return thereafter. The duration is of one year. The accused was last seen with the deceased.

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(3 of 8)

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[CRLA-412/2017]

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The case was registered after a period of one year of the occurrence when the accused made confessional statement in presence of Assistant Sub-inspector (ASI) while he was arrested in other case. The accused disclosed about the incident and admitted that he has killed deceased Satyanarayan. After the investigation, charge sheet was filed against the appellants. Learned Court below thereupon framed charges for the offence under Sections 302, 201 and 364 IPC and when it was not confessed, rather, the accused claimed trial, it commenced. The prosecution produced seventeen witnesses apart from nineteen documents to prove their case. The statements of the accused were recorded under Section 313 Cr.P.C.

¶32

It is a case where dead body was recovered on 24^th September, 2009 and FIR was registered after a lapse of one year, i.e., on 19^th September, 2010. It was found that no missing report of deceased Satyanarayan was made during the intervening period. The appellants thus contested the case in trial.

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It is submitted that the accused-appellants are innocent persons. No evidence exists against them so as to convict for the offence under Sections 302, 201 and 364 IPC. It is also stated that they have been falsely implicated based on extra judicial confession before the ASI, not admissible in evidence. No connecting evidence exists to convict the appellants. The prayer of learned counsel for the appellants is thus to acquit them. It is moreso when, the witness for recovery of jewelry has turned hostile and otherwise, jewelry was not identified by any witness. It is also stated that no report was made even for theft of jewelry for a period of one year and otherwise, the prosecution has concocted story about friendship of the accused with that of deceased and

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(4 of 8)

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[CRLA-412/2017]

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assurance to get him married. The accused Madan Mohan said to have taken money to get deceased Satyanarayan married. He pushed the deceased in a well and died therein. The accused said to have taken away jewelry also. In absence of any evidence to prove the offence, the Court should have acquitted them. It could not have been after relying on the extra judicial confession before the ASI. The prayer is accordingly to set aside the order.

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Learned Public Prosecutor has supported the order passed by the trial Court.

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We have considered rival submissions of learned counsel for the parties and perused the record.

¶39

The prosecution produced PW – 1 Samay Singh and PW – 2 Om Prakash to prove their case but they did not support the prosecution, thus were declared hostile. It is also stated that no recovery of silver jewelry was made from the accused Ashok Kumar. The other witness, produced by the prosecution, is PW – 17 Dr. Ashok Rawat, who has given cause of death. It is said to be out of drowning. According to the prosecution, it supports their case. The accused made a confession for pushing the deceased in the well. The prosecution, however, failed to produce chain of circumstances to connect the appellants with the crime. The conviction could not have been made based on confessional statement of the accused before the police officer in the process of investigation of other case. Learned trial Court ignored the aforesaid aspect while relying on the extra judicial confession of the appellants.

¶40

The perusal of the photograph of the deceased shows no clothes on the body other than undergarment. The story brought by the prosecution is that accused had taken

¶41

(5 of 8)

¶42

[CRLA-412/2017]

¶43

Satyanarayan to a movie and there he pushed the deceased in the well. The story would not be made out because the dead body was found in undergarments and not in the clothes. How his clothes were taken out has not been disclosed. The fact aforesaid has also been ignored by the trial Court while convicting and sentencing the appellants. There is no recovery of clothes.

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Learned Public Prosecutor has made reference of recovery of silver. It was by melting ornaments. No report for theft of ornaments was made for a period of one year and otherwise, goldsmith turned hostile. The recovery of ornaments could not be proved by the prosecution. It was not given in the report. The witness for recovery of ornaments PW – 7 Nandkishore @ Nandu otherwise turned hostile, thus he has not supported the prosecution case. The prosecution could not lead evidence to prove that ornaments were taken by the accused, as no report about it was made for a period of one year, hence, their story becomes concocted one. It is not a case where the prosecution could make out a chain of circumstances to connect the appellants with the crime.

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Learned trial Court has given seven reasons for conviction of the accused, which are quoted hereunder for ready reference :

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“1vfHk;qDr enu eksgu dk ifjoknh fxjkZt dh iRuh lhek ds ihgj lkjlksi tks fd bZljnk ds ikl gS] dk gksus ,oa fxjkZt dks thtk o lhek dks cfgu dgus ls eqyfte o ifjoknh i{k ds e/; ?k: lEcU/k gSa rFkk vfHk;qDr enu eksgu ifjoknh ds edku esa blh fo’okl ls dbZ o"kZ jgk gSA

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(6 of 8)

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[CRLA-412/2017]

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2- fxjkZt dk HkkbZ lR;ukjk;.k 'kjkc ihrk Fkk rFkk vfookfgr FkkA

¶50

3- fxjkZt o lR;ukjk;.k dh cfgu Jherh larks"k ds lkFk vfHk;qDr enu eksgu ds voS/k lEcU/k gksus dk 'kd lR;ukjk;.k dks gksus ij lR;ukjk;.k o vfHk;qDr enu eksgu ds chp jaft’k gks tkukA

¶51

4- enu eksgu vfHk;qDr }kjk lR;ukjk;.k dks jkLrs ls gVkus ds fy, lR;ukjk;.k dh 'kknh vius xkao dh fdlh yM+dh ls djokus dk >kalk nsdj lR;ukjk;.k ls iqu% fe=rk djuk ,oa lR;ukjk;.k dks fo’okl esa fy;k x;kA

¶52

5- lR;ukjk;.k dks yM+dh fn[kkus ,oa fiDpj fn[kkus dk cgkuk dj vius xkao lkjlksi ys tkuk ,oa vius lkFkh eqyfte v’kksd dh enn ls ?kVuk LFky okys dq, ij ys tkuk rFkk ikuh [khaprs le; dq,a esa /kDdk nsdj mldh gR;k djukA

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6- lR;ukjk;.k dh 'kknh djokus ds fy, fxjkZt ls 80&90 gtkj :i;s ,oa mldh iRuh lhek ls pkanh ds tsojkr izkIr djuk ftu tsojkr dks t;iqj esa csp nsuk rFkk ifjoknh i{k dks >kals esa ykus ds fy, ,oa nokc cukus ds fy, gR;k ds dqN fnu ckn ,d cSx esa dkxt Hkj dj enu eksgu }kjk ifjoknh ds ?kj tkuk ,oa mDr cSad ogk¡ ls gVk dj ;g vkjksi yxkuk fd cSx lR;ukjk;.k ysdj Hkkx x;k ftlesa MsM nks yk[k :i;s Fks ,oa mDr :i;ksa dks ifjoknh fxjkZt ls ekaxukA

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7- ifjoknh fxjkZt }kjk vfHk;qDr enu eksgu dks fn;s x;s 80&90 gtkj :i;s dkV dj 'ks"k jde ds fy, LVkEi fy[kk tkuk ftl LVkEi dks vfHk;qDr }kjk dqN fnu ckn ifjoknh fxjkZt dh eka o fxjkZt fd lkeus QkM+ fn;k tkukA”

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(7 of 8)

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[CRLA-412/2017]

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The issues, on which the order of conviction and sentence was passed, have been described by the trial Court but no evidence to prove those facts have been led. Nobody has seen the accused pushing the deceased in the well. If the accused had taken Rs.80,000/- to Rs.90,000/- from the complainant and jewelry from his wife then why a report for it was not lodged for a year. The prosecution failed to give reason as to why report of missing of the deceased was not made for a year. The clothes of deceased has not been recovered. The trial Court has ignored all these facts. It is a settled law that conviction cannot be made merely on probabilities, rather, it has to be proved beyond doubt.

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In the present case, no recovery has been effected from the appellants to connect them with the crime. The recovery of jewelry is shown in the form of a piece of silver. The witness turned hostile, thus he did not support prosecution. The extra judicial confession before the police officer has not been relied by the trial Court.

¶59

In view of the above, we find that the prosecution failed to prove their case beyond doubt, yet the trial Court has convicted the appellants for the offence under Sections 302, 201 and 364 IPC. The trial Court has drawn conclusions based on surmises and conjectures.

¶60

In the result, both the appeals are allowed. The impugned order dated 24^th April, 2015 passed by the Additional Sessions Judge (Special Court), Sawai Madhopur (Raj.) in Sessions Case No.07/2011 (04/2011) is set aside. The accusedappellants, namely, Madan Mohan s/o Shri Kajod Mal Panchal is acquitted of the offence under Sections 302, 201 and 364 IPC and Ashok Kumar s/o Shri Shankarlal is acquitted of the offence under

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(8 of 8)

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[CRLA-412/2017]

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Sections 302 and 201 IPC. The accused Madan Mohan s/o Shri Kajod Mal Panchal be released forthwith, if not wanted in any other case.

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The appellant Ashok Kumar s/o Shri Shankarlal is already on bail. His bail bonds are discharged.

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As per Section 437-A of the Code of Criminal Procedure, the appellants are directed to furnish a personal bond in the sum of Rs.25,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants will appear before the Supreme Court on receipt of notice thereof.

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A copy of this order be placed in connected file.

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(BANWARI LAL SHARMA),J

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Preeti/3 & C-1

Ashok Kumar v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Ashok Kumar v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

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