State of Rajasthan Vs Lokesh Mehra S/O Deshraj Mehra

The appellant – State of Rajasthan has preferred instant leave to appeal under Section 419(i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 challenging the Judgment and Order dated 23.02.2024 passed by the Additional Sessions Judge, Rajgarh, District Alwar in Sessions Case No.20/2021 (C.I.S. No.15/2022) titled as "State of Rajasthan vs. Lokesh Mehra", whereby accused-respondent was acquitted for the offences under Sections 302 and 201 of the Indian Penal Code by extending benefit of doubt.

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Brief facts relevant for disposal of present leave to appeal are that on 09.11.2019, complainant Gangaram Bairwa submitted a written report (Ex.P/22) to the police at the scene of the

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occurrence to the effect that his son Rajendra Kumar who had gone from home with Dhoji and Gulab about 3 or 4 days ago, whose dead body was found today on 09.11.2019 in the well of Surajbhan son Rewadram. Both the persons Dhoji and Gulab and Lokesh son of Deshraj Bairwa murdered his son and thrown him in the well. Lokesh Kumar had an illicit relationship with his daughter-in-law Radha Devi etc.

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On the basis of said report (Ex.P/22), the F.I.R. No.277/2019 dated 09.11.2019 (Ex.P/23) came to be registered at the Police Station Raini, District Alwar for the offences under Sections 201, 120-B & 302 of Indian Penal Code (for short "I.P.C." hereinafter) and Section 3 of Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act (for short "S.C./S.T. Act" hereinafter) and investigation was commenced. After conclusion of investigation, police submitted charge-sheet against accused-respondent for the offences under Sections 201 & 302 of I.P.C. before the court of Judicial Magistrate, Rajgarh, District Alwar, who took cognizance of aforesaid offences against accused-respondent and committed the case to the court of Sessions, from where it was transferred to the court of Additional Sessions Judge, Rajgarh, District Alwar (for short ‘learned trial court’ hereinafter).

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After hearing arguments on the point of charges, trial court framed charges against accused-respondent for the offences under Sections 302 and 201 34 of I.P.C. The accused-respondent did not plead guilty and claimed trial. The prosecution examined as many as 26 witnesses and got documents exhibited from Ex.P/1 to Ex.P/39 and Article-1 to Article-7 to prove its case.

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After conclusion of the prosecution evidence, accused-respondent was examined under Section 313 of Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution case, which he denied and stated that prosecution witnesses gave false evidence; he was innocent and had been falsely implicated in the case. The accused-respondent did not produce any oral evidence but exhibited Ex.D/1 document in his defence.

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Learned trial court, thereafter, proceeded to hear arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered impugned judgment dated 23.02.2024 acquitting accused-respondent for the alleged offences, as stated above. Aggrieved with the same, present leave to appeal has been filed by the appellant – State before this Court.

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Heard learned counsel for the parties.

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Learned Public Prosecutor appearing for the appellant – State

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of Rajasthan has submitted that prosecution has produced cogent evidence on record and established commission of murder of deceased Rajendra Kumar by the accused-respondent. He has also submitted that place of incident was verified at the instance of accused-respondent and bloodstained knife and shirt of the accused were also recovered at the instance of accusedrespondent, which connects him with the incident in the present case. He has also submitted that accused-respondent was having illicit relations with wife of deceased and thus, he was having motive to commit the offence. But the trial Court has erred in not believing evidence available on record including oral testimony

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deposed by the prosecution witnesses and wrongly acquitted accused-respondent for alleged offences without any cogent reason. He has, therefore, prayed that this leave to appeal filed by the appellant-State may be allowed and the judgment passed by the trial court be set aside.

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We have given our thoughtful consideration to the arguments advanced by learned Deputy Govt. Advocate and have gone through impugned judgment and have minutely sifted through the evidence available on record.

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In the case in hand, it is an admitted position that there is no eye-witness of the incident and entire prosecution case is based on circumstantial evidence.

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The law with regard to circumstantial evidence has been very well crystalised in the judgment of Hon'ble Apex Court in the case

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of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 . A close analysis of said decision would show that following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

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In the light of these guiding principles, let us examine the evidence in the case in hand.

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In the present case, the prosecution has come with the case that accused-respondent caused murder of deceased Rajendra Kumar and caused disappearance of evidence by throwing his dead body in a well. The entire case of the prosecution is based on circumstantial evidence of last seen, recovery of bloodstained knife and shirt of the accused-respondent and verification of place of occurrence at the instance of accused-respondent.

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The prosecution has produced Mukesh Kumar (P.W. 12) and Harikishan (P.W. 17), who stated to have last seen the deceased in the company of accused-respondents. A perusal of record reveals that both these witnesses are police personnel but no rojnamcha has been produced on record to show that they were on duty on 05.11.2019. From perusal of their statements, it reveals that their police statements were recorded on 12.04.2021 i.e. after almost one and a half years.

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The Hon'ble Supreme Court in the case of Ganesh Bhavan Patel & Anr. vs. State of Maharashtra reported in 1979 AIR 135 , has observed as under :-

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"In the instant case, some of the main reasons given by the trial court could not be effectively and rationally dispelled. One of such reasons, which cast a cloud on the credibility of the prosecution evidence, was that there was inordinate delay of several hours on the part of the police in recording the statement which was treated as F.I.R. and further undue delay in recording the statements of the alleged eye-witnesses by the investigating officer, and no credible explanation of these delays was forthcoming. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence

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or soon thereafter, their statements were recorded on the following day.

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Such delay may not, by themselves, amount to a serious infirmity in the prosecution case. But they may assume such a character if there are circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such sinister significance to these delays, exists in the instant case, which inevitably lead to the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation, in a shady setting highly redolent of doubt and suspicion."

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Applying the ratio of law laid down in the case of Ganesh Bhavan Patel (supra), in the case in hand, it is an admitted position that police statements of P.W. 12 - Mukesh Kumar and P.W. 17 - Harikishan were recorded after almost one and a half years of the incident and there is no evidence on record to show that after the incident, said witnesses were immediately not available to the Investigation Officer for recording their statement. Neither rojnamcha regarding posting of these witnesses at the concerned police station nor log-book of vehicle was produced to show that they went on patrolling on 05.11.2019. A perusal of statement of P.W. 12 – Mukesh Kumar and P.W. 17 - Harikishan reveals that both these witnesses in cross-examination have stated that they had informed the I.O. about last seen deceased with accused on 05.11.2019 on 10.11.2019 and on the second or third day after Rajendra's body was found, respectively. But their police statements were recorded after almost one and a half years and no explanation regarding delay in recording statements of these witnesses has been forthcoming on record. In these

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circumstances, in our considered opinion, no reliance can be placed on the statements of these witnesses.

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So far as recovery of bloodstained knife and shirt of the accused-respondent is concerned, a perusal of the recovery memo of weapon of offence i.e. knife and shirt of the accusedrespondent (Ex.P/8) reveals that same were recovered on 09.03.2021 i.e. after more than sixteen months of the incident in the presence of witnesses Amin Khan (P.W. 10) and Khushiram (P.W. 11). As per Ex.P/8, description of knife is as under :-

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",d iqjkuk bLrsekyh pkdw ftlds CysM ij tj yxh gqbZ gS o yEckbZ 12-5 cm gS o pkdw ds gRFks dh yEckbZ 10 cm gS ,oa pkdw dk gRFkk IykfLVd dk gS pkdw dh dqy yEckbZ 22-5 cm gSA"

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However, a perusal of the statement of P.W. 25 - Anjali Ajeet Jorwal, the Investigation Officer, reveals that she in her crossexamination has admitted that the company's name AIS is mentioned on the knife but the company's name is not mentioned on the seizure memo of said knife (Ex.P/8); handle of said knife, which has been presented in the court today is made of wood; the handle of the knife seized in Ex.P/8 is marked as plastic; length of the blade of said knife is 12.5 cm and the length of the handle is 10 cm; total length of the seized knife is mentioned as 22.5 cm in the seizure memo, whereas, today on measuring Article-1, its total length was found to be 32.5 cm; in Ex.P/8 length of the blade of knife is mentioned as 12.5 cm, whereas, on measuring Article-1 today, length of the blade was found to be 21 cm; in Ex.P/8, the length of the knife's handle is mentioned as 10 cm,

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whereas, on measuring the handle of Article-1, its length was found to be 12 cm. It is pertinent to note that a perusal of the statements of P.W. 10 - Amin Khan and P.W. 11 - Kushiram reveals that both these witnesses have admitted in their crossexamination that knife was old which was like the ones used at home and had a plastic handle. It is also pertinent to note here that no finger prints have been collected by the police from the knife so as to connect the accused-respondent in this case. It is also noteworthy that as per FSL Report (Ex.P/21), no blood was found on the recovered knife and shirt of the accused. Thus, from the evidence available on record, in our considered opinion, the prosecution has not been able to prove recovery of knife and shirt at the instance of the accused-respondent.

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So far as verification of place of incident at the instance of accused-respondent is concerned, a perusal of Ex.P/7 - verification memo of place of incident reveals that same was prepared by the police on 09.03.2021, whereas, a perusal of Ex.P/2 - site plan of place of incident reveals that same was prepared on 09.11.2019 itself. It shows that the place of incident was well within the knowledge of the police since 09.11.2019. Therefore, in out considered opinion, mere verification of place of incident at the instance of accused-respondent is of no significance.

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It is pertinent to note here that neither the accusedrespondent has been named in the F.I.R. nor there is any mobile call details or tower location of the accused-respondent place on record to show any conversation took place between him and the deceased or presence of accused-respondent at the place of

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incident at the relevant time. Even, no evidence to establish motive has been produced by the prosecution. Moreover, there is delay of four days in lodging the F.I.R. and no explanation is forthcoming on record to explain said delay.

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In view of the above discussion, this Court finds no ground to grant leave to appeal in favour of the appellant - State.

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Accordingly, present criminal leave to appeal is dismissed. The Judgment dated 23.02.2024 passed by the trial court is affirmed.

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A copy of this order along with original record be remitted to the trial court forthwith.

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(BHUWAN GOYAL),J

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(INDERJEET SINGH),J

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ANU/

State of Rajasthan v. Lokesh Mehra S/O Deshraj Mehra

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State of Rajasthan v. Lokesh Mehra S/O Deshraj Mehra

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