G.R. Moolchandani, J. - The appellant-accused persons have preferred separate appeals assailing the impugned judgment dated 23/01/2007 passed by Additional District and Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar in Sessions Case No. 38/2005(20/05), whereby the appellants have been convicted and sentenced to life imprisonment, distinctly as under :-
Under Section 302, 302/34 IPC Each of the accused has been convicted and sentenced for life imprisonment with a fine of Rs.5,000/- in default to pay, further to undergo one years simple imprisonment.
Under Section 380 IPC Each of the accused has been convicted and sentenced for three years rigorous imprisonment with a fine of Rs.1,000/- in default to pay, further to undergo two months simple imprisonment.
Under Section 450 IPC Each of the accused has been convicted and sentenced five years rigorous imprisonment with a fine of Rs.2,000/- in default to pay, further to undergo six months simple imprisonment.
Under Section 27 of Arms Act Accused Charanjeet Singh @ Chatra has been convicted and sentenced for three years rigorous imprisonment with a fine of Rs.1,000/- in default to pay, further to undergo two months simple imprisonment and another appeal No. 184/2007 filed by accused Rooplal alias Rupi v. State of Rajasthan got abated because of his demise and three appeals as detailed are being decided by this single order because of arising out of a solo judgment.
2. In nutshell, the factual matrix of the case is that on 10.12.2004 at about 10.45 p.m. one Narendra Kumar S/o Ramgopal Bagri, resident of Ward No. 12, near Vishkarma Temple, Anoopgarh, lodged an oral report with Police Station, Anoopgarh mentioning that he was working with Indian Gas Agency, Anoopgarh as a Manager. Surendra Kumar son of Ramswaroop Sharma, who his younger brother-in-law (Saadu), was running Mahesh STD/PCO shop in Ward number twelve and his family was residing in Ward number eight, on 10.12.2004, while his Saadu was there at his shop, Shiv Nandan Ojha informed him at about 1:30 PM, asking to go to PCO shop to take care of it, so he went to PCO Shop, on reaching there, he found Surender Kumar lying straight on the floor with his throat cut by sharp weapon and blood lying scattered, he touched him and found his body cool, who had since died. Shivdhan Ojha and Raja Ram were with him, belongings of the shop were lying scattered, PCO Machine was not there, telephone and small radio were lying upon the counter with broken wires. Some stranger had killed Surender Kumar by inflicting sharp edged weapon injuries upon his neck and had stolen PCO Machine, his corpse is lying in PCO and on this information, a case was registered at crime No. 562/2004 under Sections 302 and 380 I.P.C.
Post submission of charge-sheet, charges were framed against all the accused persons and trial was conducted, prosecution produced seventeen witnesses and exhibited 174 documents, during the evidence twenty two articles were exhibited, completion of the trial, culminated in convicting and sentencing the accused as dealt above.
3. Heard learned counsels for the appellants and learned Public Prosecutor, learned counsels for the appellants have argued that the prosecution has failed to establish its case beyond reasonable doubt despite the trial court has given wrong findings by convicting the accused persons. Recovery of PCO machine, said to have been made from a distant place, which too has not been sealed and in absence of getting it properly sealed, the alleged impressions taken from the machine are of no use, so on the basis of alleged matching of finger prints accused-appellants cannot be connected with the alleged offence. Moreover, the arrest has been made after about five months of the incident and recoveries too have been made thereafter, so delay of five months makes the entire story of the alleged recovery fake and concocted, it has further been argued that the alleged incident has been said to have occurred during continuance of curfew, so it is improbable and unbelievable, as to how four persons allegedly equipped with alleged deadly weapons will come to a PCO from a far place and will commit offence during continuance of curfew, it is also not probable to fetch the alleged stolen PCO machine and throwing it away in secluded premises, there is no eye witness at all. The case of the prosecution is based on circumstantial evidence, the links of circumstantial evidence are drastically missing, arrival of Gamdur Singh for obtaining the prints and moulds have also not been established, so procurement of any such prints or moulds becomes false. It has also been submitted that there is no testimony, as to when the moulds and samples were taken after objection of FSL, which is enough to indicate fragmentation of link evidence.
The prosecution has initially informed about the theft of PCO machine and nothing more was informed to have been stolen from the PCO premises, then recovery of PCO registers or any document relating thereto, becomes futile and has got no connection to convict the appellants. There is no motive at all and prosecution has failed to establish it. Moreover, recovery of the PCO registers is also stale, which has allegedly been made after lapse of five months from the date of occurrence and prosecution has proved nothing despite the learned trial court has convicted and awarded sentence to the accused-appellants on the basis of hypothesis. The prosecution witnesses and recovery witnesses are bogus and implanted. No independent witness has been taken by the prosecution, the FIR was lodged against anonymous 4 to 5 months later. The accused-appellants were arrested without any grounds and had the machine would have been stolen by alleged culprits, then wherefore, it would have been left abandoned and this fact is self-explanatory, which is capable to collapse the story of the prosecution.
Learned counsels for the accused-appellants have taken support of following precedents namely:-
(i) Mohd. Aman Babu Khan And Another v. State of Rajasthan � 1997 AIR SCC 777
(ii) Mal Singh & Anr. v. State of Rajasthan � 1995 Cr.L.R. (Raj.) 180
(iii) Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad � 2002 SCC (Cri) 1370
(iv) Durga Devi v. State of Rajasthan � 1992 Cr.L.R. (Raj.) 782
(v) Sharad Birdhichand Sarda v. State of Maharashtra � 1984 Cri.L.J. 1738
And have submitted that case of the prosecution is not proved beyond bounds of reasonable doubt, so the appeal be accepted and the impugned judgment be set aside.
On the other hand, learned Public Prosecutor has contended that the case of the prosecution is fortified by recovery, which has been made on the instance of the accused persons and there is no such flaw as alleged by the defence in the prosecution case. Weapons of assault have been recovered from the possession and on instance of the accused persons which have been found stained with human blood and PCO Machine has also got finger prints of one of the accused Jasveer, which have found to be matching and the chance foot moulds have also matched with specimen moulds, registers stolen from the PCO have also been recovered from the possession of the accused persons. The prosecution has completely succeeded in proving its case against the accused persons and the learned trial court has passed a correct judgment without any error whatsoever. The accused-appellants are heinous criminals, who have killed a young man and looted PCO, there is positive evidence against all the appellants, their appeals have got no force and same be dismissed.
4. Perusal of evidence depicts that PW-1 Pawan Kumar is a brother of deceased Surendra Kumar, who has said that deceased Surendra Kumar was working as Junior Engineer earlier, after finishing job, he had become unemployed and before two and half to three years ago, he came Anoopgarh and started Mahesh STD/PCO, there near Nagar Palika, Well at Anoopgarh in a rental premises. He has further said that deceased was having two kids and his family was residing at Anoopgarh. On 10.12.2004 while he was in Raghunathpura village, he was informed of assassination of his brother Surendra Kumar, so he came to Anoopgarh and on visited at the spot, he found his brother dead there, sustaining injuries of sharp edged weapon and his body was having injuries on neck and mandible and on other parts of the body and because of injuries, he had died. PCO machine was not there, radio and telephone were there on the counter. He has further said that police had made fard status of corpse panchanama, which is Exs.P.1 and P.2 and body was given to him vide Ex.P.3 and all these papers bears his signatures, in his cross-examination, he has further said that Shivdhan Ojha was a neighbour of his brother and he was there because of being a neighbour and has said that when his brother was Junior Engineer at Bhawas, he was not suspended but removed because of abolition of the post and has denied suggestion that his deceased brother would have been suspended because of some complaint of a peasant and has also refuted a suggestion that he was removed because of disputes at Raisingh Nagar.
PW-2 Smt. Jyoti Sharma widow of the deceased, Surendra has said that deceased was her husband and was Junior Engineer at Bhadra, who had to abandon his job, because of abolition of the post and they had shifted to Anoopgarh two and half years before the occurrence and he was running Mahesh STD in a rented shop of Deshraj Arora near Nagar Palika, Anoopgarh''s well. On 10.12.2004 her husband had gone to PCO at about 8:00 AM and returned at 10:00 AM, again he went to the shop at 2:00 noon and came back at three past and again went there after taking water etc. to the shop. She has said that she had gone to the shop at about half past four in the evening to serve him tea, and after serving tea, she returned back and after that she again went to his shop at half past six to serve tea at PCO and came back afterwords. She has further said that when by nine of the night, her husband did not return, she went along with her daughter Kajal to the shop but returned from the point of well but when her husband did not come back home by ten, she went to the PCO along with Bhupender Singh son of landlord and found that shutter of the shop was down, when Bhupendra tried to raise it, it did not go up, then she helped to push it up-side and has further said that when shutter was up, they found Surendra Kumar Sharma lying fallen on the floor, sustaining injury of sharp edged weapon on his neck. She has further said that she kneeled down upon his body and burst into weeping. Bhupender went nearby to support, neighbour Shivdhan Ojha, his wife and Bholi, mother of Bhupendra and Jijaji Narender came there and a woman took her to the home, PCO Machine was not there, while cross-examined, she has said that when they reached at the shop, shutter was totally down and nothing was visible from the front. She has further said that during investigation, no list of stolen items was given by them to the police. She has further said that it is true that on that day, curfew was operational in the town, but she used to go to his shop during curfew to serve tea and to meet her husband two to four times daily. She has said that she remained with her husband''s body for five to seven minutes and when other people came, she went with a neighbouring women. She has said that at that time, she was not in proper sense, so she cannot say how much people came but police had visited there in her presence.
5. PW-3 Narendra Kumar has said that from April 2002 to April 2005, he was working as a Manager at Bharat Gas Agency, Anoopgarh. On 10.12.2004, while he was at his house and about quarter past ten in the night, Shivhan Ojha came to him and informed that Surendra Kumar, his "Saadu" was beaten, so take care of him. He has further said that his "Saadu" Surender Kumar was running Mahesh STD in one of the shops situated near Nagar Palika and has said that while visited at the spot, he found his "Saadu" Surendra Kumar lying down on the floor having injuries on neck and mandible of sharp edged weapon, blood was lying scattered there. He has further said that when he touched him, his body was cool and he was no more, then he went to Police Station for information, Shivdhan and Rajaram were with him. He has further said that belongings of the shop were lying scattered, a telephone was there on the counter with broken wires and a small transistor were lying on the counter but PCO Machine was not there. He has further said that he lodged its report at Police Station, which is Ex.P.4 and bears his signature. He has also said that a constable was sent to the spot and on next day, police came around 6:00 AM and Thanedar Bhanwar Lal Sisodia and some policemen and senior officers were there. Spot-map Ex.P.5 was drawn, which contains his signature. He has also said that Raja Ram and Navratan were there and Thanedar sent the body to the hospital for post mortem and panchanama is Ex.P.2, which has got his signatures and on asking, they had opined the cause of death being injuries caused by sharp edged weapon. He has further said that Thanedar Saheb had asked him to go along to the site of incident for investigation and found there few persons standing and a boy named Koja Ram met there, informing some machine lying in his premises, so he went with C.I. Saheb and two to three persons also accompanied to that premises and according to information of Koja Ram, the premises was appearing to be secluded, Thanedar Saheb and C.I. Saheb went there and recovered PCO Machine, its seizure is Ex.P.6, which bears his signatures from A to B and spot-map is Ex.P.7 and Halaat Mauka of PCO machine is Ex.P.8, which bears his signatures, he has also said that PCO machine is same, which was recovered and was marked as Article 1.
He has also narrated an important fact that he was staying 22 to 30 ft. away from the premises of Koja Ram and he did not go inside the premises of Koja Ram, thanedar Ji had gone inside, none else went inside with him, afterwords Thanedar Saheb brought machine hanging with a rope and shown him the machine, in examination in chief, it has also been said that he had been to the premises of Koja Ram, then was halted by C.I. Saheb away from the house of Koja Ram.
6. PW-4 Raja Ram a neighbour of the area has said that on 10.12.2004 at about quarter past ten in the night, Bhupendra Sharma came and informed that Surendra uncle was badly injured and was cut by anybody and asked to accompany, he went to Mahesh STD PCO and found Jyoti wife of Surender Sharma crying there, Shivdhanji also came, he went to the site of the shop and observed Surender Kumar lying on the floor, having injuries on chin and neck, blood was lying scattered. Shivdhan had called Surender''s "Saadu" there and Narenderji observed the dead by touching, then Surenderji and Shivdhan went to Police Station, where Narenderji lodged the case. He has also corroborated Exs.P.1, P.2 and P.3 and accepted his signatures on these exhibits, in his cross-examination, he has said that the days were of winter and because of "Kisan movement", curfew was in currency, he has further said that he was a counsellor of Nagar Palika and the incident had taken place in Ward No. 2, where his residence is nearby and his house was at two minutes distance from PCO. He has also said that Narenderji had checked deceased by touching and had informed that the body was devoid of breath, so they did not carry it to the Doctor.
7. PW-5 Kojaram is a significant witness in whose secluded premises, the said PCO machine was detected in abandoned position, this witness appears to be an alone poor boy and off and on fed by vicinity people and was having his dilapidated secluded premises nearby, who has said that his parents were dead, his secluded house was situated in Ward No. 11 of Anoopgarh without any belongings and has verbatim said :-
"esjs ekWa cki ej pqds gSa o edku okMZ ua0 11 vuwix<+ esa gS og edku lwuk gS dksbZ lkeku mlesa j[kk gqvk ugha gSA eSa ckuh, ds ?kj jg tkrk gwWa vkSj ethZ vk;s ogka jg tkrk gwWaA fnukad 10-12-2004 dh ckr gS ml fnu eSa efUnj dh iwrk djds iou lksuh ds ;gka [kkuk [kk;k mlh fnu jkr dks eSa bZ''kj Vsyj ds ikl lks;k FkkA nwljs fnu 11 rkjh[k dks eukst ds ikl pk; ih Fkh eukst ds ikl ls lkcwu yk;k Fkk mlh fnu esa rhu :i;s dh dkap dh xksfy;k yk;k Fkk rFkk c`tyky th ds ?kj ds ikl eqdUnh ds yM+ds ds lkFk xksfy;ka [ksyh FkhA ogka ij esjs edku esa tc lwvj ?kqls Fks mudksa eSaus iRFkj ekjdj Hkxk;k FkkA esjs edku ds njokts ges''kk can jgrs Fks ysfdu ml fnu [kqys gq, FksA fQj eSaus edku ds dejs esa ?kql dj ns[kk Fkk rks ogha ij dksuZj esa ih0lh0vks0 dh e''khu iM+h Fkh fQj eSa dqa, ds ikl vk;k ogka jktkjke lksuh ds firkth Fks mudks ih0lh0vks0 ds e''khu ds ckjs esa crk;k FkkA fQj eSaus lh0vkbZ0 lkgc Hkaoj yky th dks e''khu ds ckjs esa crk;k FkkA mlds ckn lh0vkbZ0 lkgc o rhu pkj vU; O;fDr esjs ?kj esa x;s vkSj lh0vkbZ0 lkgc us gesa ?kj ds ckgj 25 QqV dh nwjh ij [kM+k dj fn;k Fkk fQj lh0vkbZ0 lkgc us jlh ds }kjk ml e''khu dks mij mBkrs gq, ysdj vk;s Fks ml e''khu dks mUgksaus vius dCts esa yh FkhA dCts esa e''khu dks ysdj mldh fy[kki<+h dh FkhA ftldh QnZ tCrh ,d e''khu ih0lh0vks0 izn''kZ ih&6 gS ftl ij lh ls Mh esjs gLrk{kj gS uDlk tCrh ih0lh0vks0 e''khu izn''kZ ih&7 gS ftl ij lh ls Mh esjs gLrk{kj gSA QnZ gkykr tCrh ih0lh0vks0 e''khu izn''kZ ih&8 ftl ij lh ls Mh esjs gLrk{kj gSaA ih0lh0vks0 e''khu dks eSa igpkurk gwWa] tks vkfVZdy ,d gSA esjs c;ku iqfyl us ?kj ds ikl ls fy, FksA"
In cross-examination, he has also said that the conveyance deed of his premises was kept at the house of "baniya" and he had never resided in that premises and from childhood, he is offering prayers in Anoopgarh and has said that he had never been to the police station for performing pooja and has further said that when Thanedar Saheb had been to his premises for recovery of machine, kept three to four persons 20 ft. away from the premises and had gone inside the premises alone and brought the machine with a rope, outside and prepared the documents outside the premises and his signatures were taken. He has also said that he had seen the machine on 11 date at 11:00, while playing ''bante'', he has also said that machine was lying in a corner tied with a rope and he had informed Thanedar orally regarding it. He has also said that he had played ''bante'' with son of Mukandi, machine was sealed by Thanedar after closing it in a cloth bag and has denied that he was tutored by the police to utter statements and has denied that he used to survive on feeding of thana.
8. PW-6 Hari Singh is a neighbour of Mahesh PCO and has said that his house was situated behind Mahesh STD-PCO and has said that on 10.12.2004, he had gone to Mahesh PCO at about quarter to eight in the night for phone talk in West-Bengal and had tried to speak with 191 CO of BSF but despite try, talks did not mature and when he went there for talk, he did not witness any boy there and Surender was alone there. He has further said that he did not see anybody other than Satyaveer Jakhar and Jakharji Advocate had made telephone before, after departure of Satyaveer Jakhar, he was there for ten to fifteen minutes, at that time, talks with operator were being made, he has also said that he did not witness any young person there, in cross-examination, he has said that he was interrogated by police twice, this/witness has also said that his statements were not recorded by the police and some of the parts of statements of "pracha bayan" has been denied by this witness. He has also said that they are six brothers, out of which Narayan Singh and Gyan Singh were practicing Advocates there and has also observed that he did not see anybody amongst the present accused persons earlier.
9. PW-7 Bhupendra Kumar is a landlord of deceased Surender Kumar, in whose premises family of Surender Kumar was residing and he has said that in Southern part, tenant Surendra Kumar, was residing and in Northern part of the premises, his family was residing. He has said that Surenderji was running Mahesh S.T.D./P.C.O. in the rented shop of Deshraj, on 10.12.2004 Jyoti Aunty wife of Surender informed him at 10:00 PM that his uncle i.e. spouse of Jyoti Aunty, did not return, so he had gone with Jyoti Aunti to PCO, after raising shutter there, he found Surendra Kumar lying down on the floor, sustaining injuries on his neck and blood lying scattered there. He has further said that he immediately went to Shivdhan Ojhaji and informed him about the incident, then Shivdhan summoned Narender, "Saadu" of Surender. Narenderji touched body of Surender and found that he was no more, then Shivdhanji went to Police Station for lodging report and his mother brought Jyoti Aunty back to home. He has further said that next day at about quarter to eleven, he was standing near the well, outside of the shop, then Koja Ram came there and informed that someone has thrown away PCO machine, he had conveyed this fact to C.I. Saheb, then C.I. Saheb came to the house of Koja Ram accompanying few policemen, he, his uncle Narendra Kumar and two to three other persons also went together. He has also said that then C.I. Saheb went inside alone and they were left standing outside, then C.I. Saheb brought a PCO Machine tied with rope outside, then one individual took chance prints from the machine and its fard was also prepared and his signs were also taken. He has further said that Ex.P.10 is fard seizure of three chance prints, which contains his signatures, after seizure of the machine, police had taken foot moulds and its fard Ex.P.11 was prepared, which has also got his signatures and has said that foot moulds were taken after pouring powder, it was sealed and fard was prepared.
On opening, all the articles during the course of recording of evidence, PCO machine has been identified by this witness and he has also accepted his signatures on the foot moulds article 5, in cross, he has said that cemented road is constructed around the house of Koja Ram. He has also said that at the time of taking of food moulds, they were standing 25 to 30 fts. away and besides him Narender, Shivdhan and three to four other persons were there. He has also said that on that day, they were there for half to quarter an hour at the place from where the moulds were taken. He has also said that the place from where the PCO Machine was recovered and brought was not seen by them and they were standing outside, neither they observed that spot nor it was shown. He has also said that he had there to make phone from PCO so recognised the machine by its colour.
PW 8 Birbal Ram is a photographer, who has clicked photographs of the spot and he has admitted to snap 20 photographs, which are Ex.P.12 to P.31 and their negatives being Ex.P.12A to P.13A, he has also submitted that photographs were snapped on the request of the police.
10. PW-9 Shivdhan Ojha is a prominent witness, who is neighbour of the event area and he has said that on 10.12.2004 in the night, at about 10 PM Bhupendra came to him and informed him that somebody killed STD-PCO Shop keeper Surender. He has also said that Surender was a tenant residing in front of his house, who was operating Mahesh S.T.D. P.C.O. near well, on getting information, he went to Mahesh STD along with Bhupender, Raja Ram Soni also came there, police also arrived just after they reached, Surender was lying-down dead, PCO belongings were lying scattered, cash box was also laid open and radio was there on the table, the PCO machine was missing. He has also said that he called Narenderji brother-in-law, "Saadu" of deceased Surender, who after observing the body, viewed that Surender was no more and information was given to police by lodging FIR by Narenderji. He, Narender and Raja Ram had gone there. He has also said that he had seen the injuries of Surender and there was a sharp weapon injury on his neck, blood was scattered and his wife was weeping there. He has also said that next day at 6:00 AM, police came on the spot and after conducting necessary proceedings body was taken to the hospital and about half past ten to quarter past eleven Koja Ram came near the well. He, Shri Ram Soni and police were there, Koja Ram said that machine was lying on his premises, after that C.I., Navratanji, he and some other five to seven people went there, and stood there, C.I. brought the PCO machine from inside and police had procured finger prints from the PCO machine and had prepared Ex.P.10, which bears his signatures, the police had taken moulds of right foot after pouring powder from there and its fard is Ex.P.11, which also contains his signatures, ratifying arrest of the accused persons, he has also confirmed Exs.P.33, P.34, P.36 to P.63 and has also accepted his signatures on majority of these papers.
While under examination, he has recognised PCO Machine as Article P.1 and foot moulds of right foot as article 5 and Ex.72. He has also said that Exs.P.74, P.77, P.78 and 79 bears his signatures. He has also confirmed Exs.P.80 to P.106 and has also said that foot moulds of Charanjeet @ Chatra were taken before him and were sealed.
He has also said narrative about all these exhibits and accepted his signatures on majority of these exhibits, as such this witness being neighbour of the deceased has remained corroborative of almost all the exhibits drawn and prepared before this witness, this 62 years, retired witness, has elaborately been cross-examined but has narrated the sequence of the incident and proceedings witnessed by him precisely.
11. PW-10 Navratan another neighbour witness has said that the incident belongs to 10.12.2004, on 11.12.2004 at 5:00 in the morning, he went to the spot near to Mahesh STD/PCO, which is near to well. Narenderji met him there, who informed him that Surenderji was assassinated, then he went to the house of Surenderji, many people were there, after talking with some relatives there, they came to the spot of occurrence, police drawn spot map Ex.5, which bears his signature. He has further ratified Ex.P.1, P.3, P.64 to P.68 and has accepted his signatures on majority of these documents and has said that dead body was sent to his village Raghunathpur and brother of deceased and some other people, carried it. He has again said that after returning home, it was heard that a PCO machine was detected, Koja Ram was there, who informed that the machine was abandoned in his premises, all went there with the police, he has also said that they stood outside, policemen went inside and Ex.P.6 was prepared there which bears his signatures and during the course of testimony, on observing the articles, this witness has recognised PCO machine, saying it as same and has also said that the spot map of recovery of the PCO machine was prepared, which is Ex.P.7 and status of seizure of PCO machine is Ex.P.8, which bears his signatures. He has also accepted his signatures on Exs.P.69 to P.71, in cross-examination, he has further said that the PCO machine was tied with a rope. He has also said that he did not see, in which and what condition the machine was lying. He has also confirmed taking of foot moulds from the spot and has said that he had seen Koja Ram on that day only, who might be residing there.
12. PW-11 Gamdur Singh is a Police Constable, who had procured foot moulds and he has said that a murder had taken place in PCO so he had gone to take chance prints, later on, little far from the PCO, its machine was detected from a lone premises and he had taken three chance prints from the PCO machine and handed-over, it to S.H.O., P.S. Anoopgarh after sealing them. He has further said that outside of the premises, a foot mark of right foot was detected, which was also taken after putting mixture of plaster of paris thereon which is Ex.P.10, at the time of sealing the foot moulds, a paper slip was kept there, which is Ex.P.72 and these exhibits bears his signatures. On observing PCO machine during the course of recording of evidence, he has recognised the PCO machine as article 1, he has also said that he had taken specimen foot moulds of arrested accused Charanjeet Singh @ Chatra, Natthuram @ Nathiya, Jasveer Singh @ Sira and Ruplal @ Rupi vide Exs.P.48 to P.51, which bears his signatures, he has confirmed these exhibits during the course of evidence. He has also said that he received training from FSL, Jaipur and Finger Print Bureau, Jaipur to work in MOV Cell, he has also said that he had been there on written instructions of S.P., Sri Ganganagar. He has also said that machine was lying there in North-East side of that kotha, he had not taken the chance prints from the machine there but S.H.O. slightly brought it out after putting rope. He has also said that the foot moulds of right foot, which he had procured was a boot sign and it is wrong that the chance prints were not clear or were faded, he has also said that he had taken specimen foot moulds of all four accused persons from police station compound.
13. PW-12 Ramniwas is a police Constable, depositing the seized samples and he has said that :-
"fnukad 19-04-2005 dks eSa iqfyl Fkkuk] vuwix<+ eSa ,Q0lh0 ds in ij rSukr FkkA ml fnu eSa vuwix<+ ls xaxkuxj ,l0ih0 vkWfQl fpV~Vh tkjh djokus ds fy, ,Q0,l0,y0 gsrq izFke lwpuk fjiksVZ la[;k 562@04 x;k FkkA vuwix<+ Fkkuk dh rgjhj izn''kZ ih0&107 gS blds lkFk eSa 5 iSdsV lhYM gkyr esa ysdj x;k FkkA blds vykok ,d vkSj rgjhj Fkh tks izn''kZ ih&108 gS ftlds lkFk Hkh 6 lhYM+ iSdsV ysdj x;k FkkA ,l0ih0 dk;kZy; ls tkjh fpV~Vh ckcr ,Q0,l0,y0 tkap izn''kZ ih0 109 gS ftl ij , ls ch esjs gLrk{kj gSA fnukad 21-04-2005 dks eSa ,Q0,l0,y0 t;iqj igwapdj lhYM gkyr esa iSdsV dqy 11 tek djk, ftldh izkfIr jlhn izn''k ih0 110 gS tks ykdj eSaus eky[kkuk bapktZ vuwix<+ dks lqiqnZ dj nh Fkh ,oa fnukad 30-04-2005 dks ,l0ih0 dk;kZy;] Jhxaxkuxj ls blh eqdnek esa fQaxj fizaV C;wjks] t;iqj ds uke ls ,l0ih0 lkgc ls fpV~Vh tkjh djkbZ tks izn''kZ ih0&111 gS tks iSdsV Hkh eSaus fQaxj fizUV C;wjks t;iqj esa fnukad 02-05-2005 dks tek djk, ftldh ikorh jlhn izn''kZ ih0 112 eSaus ykdj eky[kkuk bapktZ vuwix<+ dks tek djkbZ esjh jokuxh fnukad 19-04-2005 izn''kZ ih0 113 gS ftldh izekf.kr izfr izn''kZ ih0 113&, gSA esjh vken fnukad 22-04-2005 izn''kZ ih0 114 gS ftldh izekf.kr izfr izn''kZ ih0 114&, gS ,oa fnukad 30-04-2005 dks esjh jokuxh izn''kZ ih0 115 gS ftldh izekf.kr izn''kZ ih0 115&, gSA esjh vken fnukad 04-05-2005 izn''kZ ih0 116 gS ftldh izekf.kr izfr izn''kZ ih0 116&, gSA esjs iqfyl us c;ku fy, FksA otg lcwr tc rd esjs ikl jgk lhYM gkyr esa gh jgkA"
In cross-examination, this witness has said that on 21.4.2005, four packets were returned to him by Finger Print Bureau vide letter Ex.D.5 and samples were deposited back in Thana. He has also said that on 1.5.2005 he had stayed with control room and the samples remained under his supervision and denied any kind of tempering with the said samples, he has also said that on 19.4.2005, he had gone to S.P. Office, but letter could not be issued on that day and he remained in control room over night and he did not deposit the samples in Thana at that time and the same remained with him.
14. PW-13 Sajan Kumar is also a Constable, who has taken some of the samples for depositing in F.S.L. and he has said that on 19.4.2005, he was posted at Anoopgarh Thana as Constable and under instructions of S.H.O., he had gone to F.S.L., Jodhpur for depositing the samples, after getting forwarding letter issued from S.P. Office. Letter given by Thanadhikari is Ex.P.117 letter issued by the S.P. Office is Ex.P.118, which bears his signatures deposit receipt of FSL, Jodhpur is Ex.P.119, and it was rendered to Malkhana incharge, his departure entry as mentioned in Rojnamcha is Ex.P.120 and its copy is Ex.120A his return is Ex.P.121 and its copy is Ex.P.121A, which bears his signatures, he has also said that during his possession, the samples remained sealed and secured and were deposited in sealed condition.
15. PW-14 Balwant Singh is Malkhana incharge of Anoopgarh Police Station, who has said that on 11.12.2004, C.I. Bhanwar Lal of Anoopgarh had given eight sealed packets, which were entered at serial No. 589/193 in Malkhana register and on 10.4.2005 Bhanwar Lal, S.H.O. had given four packets, which were entered at serial No. 381/53 in Malkhana register and on 12.4.2005, twelve sealed packets were given again by S.H.O., Bhanwar Lal, which were registered in Malkhana at serial No. 382/54 and on 13.4.2005, two sealed packets were again given by S.H.O., which were entered in Malkhana register at serial No. 385/55 and on 14.4.2005 four sealed packets were subsequently given by S.H.O. Saheb, which were entered in Malkhana register at 384/56 and after entry signatures of C.I. Saheb were obtained and out of those packets, 15 sealed packets were given to Constable Ram Niwas for depositing in F.S.L., Jaipur, which were deposited on 22.4.2005 in F.S.L. Jodhpur and its receipt number is No. 160 dated 21.4.2005, which after entering into Malkhana register rendered to C.I. Saheb. He has again said that four packets were returned with objections, were kept in Malkhana. Five packets were given to Constable Sajan Singh on 19.4.2005 for depositing in F.S.L. Jodhpur, which were deposited on 21.4.2005 vide receipt No. 80 which was given to C.I. Saheb and four sealed packets were handed over to Constable Ram Niwas on 30.4.2005 for depositing in F.S.L., Jaipur, which were deposited in F.S.L. on 4.5.2005 and its receipt was given to C.I. Saheb. He has also said that during the course of his possession, the samples remained sealed and intact and he had taken signatures of Constable, while sending and on his return in the Malkhana register, its entry is at serial No. 589/193 Ex.P.122, in his cross-examination, he has also said that vide Ex.D.5, four packets, which were again sent were deposited in Malkhana on 22.4.2005, a copy of Rojnamcha is Ex.P.126. He has also said that samples, which were returned with objections of Jaipur Finger Print, were not entered in the register, but a note was mentioned in carrier column.
16. PW-15 Dr. M.L.Gupta is a Doctor, posted at Community Health Center, Anoopgarh on 11.12.2004, who conducted post-mortem on the body of the deceased and with respect to the injuries found on the body of the deceased, has said that :-
"Hkhrjh tkWap djus ij flj esa dksbZ QzsDpj ugha ik;k x;kA czsu esVj o ckgj dh f>fYy;ka ihykiu fy, gq, FkhA xnZu ds mij ,d dVk gqvk ?kko Fkk tks fd 15 lseh0 yEck o gM~Mh rd xgjk Fkk] rFkk xnZu ds nkfgus fgLls ls ''kq: gksdj cka;h vkSj rd tk jgk Fkk tks chp esa ''olu uyh dks dkVrs gq, FkkA
2- psgjs ij 25x5 lseh0 x gM~Mh rd xgjk dVk gqvk ?kko tks fd psgjs ij nkfguh vksj ls ''kq: gksrk gqvk nkfgus dku ds uhps ls cka;h vksj tkrk gqvk& BksMh ds cjkcj ls rFkk jkLrs esa eS.Mhoy cksu dks dkVrk gqvkA
3- dVk gqvk ?kko 8x4 lseh0 x gM~Mh rd xgjh & ck,a dU/ks ds mij vij o ihNs dh vksjA
4- dVk gqvk ?kko 10x4 ekal rd xgjkbZ rd & ck,a dU/ks ds ihNsA
5- dVk gqvk ?kko 8x1 lseh0 x ekal rd xgjk & xnZu ds ihns cka;h vksj
6- dqpyk gqvk ?kko 3x2 lseh0 x ekal rd xgjk & ck,a dku ds phus ds fgLls esaA
7- [kjksap 2 lseh0 x 1 lseh0 & cka;h dksguh ds ihNs
8- [kjksap 3 lseh0 x1 lseh0 & nkfgus dU/ks ds ihNs
9- [kjksap 1 lseh0 x 1/2 lseh0 & ck,a gkFk ds ihNs
e`rd ds o`{kLFky dh Hkhrjh ijh{k.k ls ''okluyh esa lqjk[k ik;k x;kA pksV ds dkj.k lqjk[k ik;k x;k rFkk Hkhrj tek gqvk [kwu ekStwn FkkA QsQM+ksa dks dkVus ij FkksM+s ls >kx ik, x, rFkk nksuksa QsQM+s ihykiu fy, gq, FksA g~n; ds nksuksa pSEcj [kkyh ik, x,A
e`rd ds ,cMkseu ikVZ ds Hkhrjh ijh{k.k vuqlkj e`rd ds uhps ds tcM+s dk BksM+h ds ikl VwVk gqvk gksuk ik;k x;kA pwafd eqag vkfn dk ijh{k.k ,cMkseu ikVZ ds varxZr fn[kk;k x;k gSA e`rd ds vkek''; esa FkksM+k HkkStu ekStwn FkkA dkVdj ns[kus ij yhoj] frYyh] xqnsZ ihykiu fy, gq, FksA e`rd dk ew=k''k; [kkyh Fkk o ckgkz tuukax LoLFk FksA
And he has said that according to the opinion of Board Members, the cause of death was hemorrhagic shock because of injuries caused and excessive blood loss and the injuries No. 1 to 5 were found to have been caused by sharp edged weapon and injuries No. 6 to 9 were caused by blunt weapon and all the injuries were sufficient to cause death and Ex.P.127 is, his hand written.
17. PW-17 Sadhu Ram is a Naib-Tehsildar before whom the samples of foot moulds were taken and he has said that four people were got treaded there and their foot marks were obtained by plaster of paris and signatures of Thanedar Saab, Shivdhan and Hardev Singh were taken, he has further said that finger prints of all the four accused persons were taken separately and this witness has confirmed his signatures on Ex.P.49, P.50, P.51, P.76, P.77, P.79, P.85, P.88, P.87, P.92, P.93, P.96, P.99, P.100 and P.102 and has also said that finger prints of both hands of Charanjeet alias Chatra were taken and Exs.P.146A to P.146C and P.146 relates to them and likewise finger prints taken of accused Ruplal are from Ex.P.147 to P.147.C and Exs.P.148 to P.148C relates to finger prints of accused Jasveer Singh alias Seera and he had also confirmed Ex.P.149 to Ex.P.149C and has confirmed article 22 pertaining to specimen foot moulds of right foot of accused Jasveer Singh alias Seera. He has confirmed articles 21, 18, 17 and 12 as well, so this witness, confirms obtainment of sample foot moulds and finger prints of the accused persons taken and procured before him, nothing abnormal has emerged from the evidence of this witness. PW-18 Gordhan Lal Arora is a Court Reader, Special Judge, SC/ST Court, Sri Ganganagar, who has produced Ex.P.197, copy of the judgment passed against Nathuram S/o Kesra Ram under Sections 147, 452, 323 of I.P.C. and has said that vide Ex.176 and report as mentioned on it, the accused served the sentence and has said Ex.P.177 is a memo of charge related to that case.
18. PW-16 Bhanwar Lal Sisodia, Dy. S.P. is an investigator and this witness has conveyed the process of investigation undertaken by him and has corroborated Ex.P.67, P.11, P.6, P.10, P.32, P.155, P.129, P.131, P.129 to P.133, P.135 to P.137, P.134 and P.6 and has also narrated the process of taking chance and sample foot moulds and finger prints and regarding recovery of PCO Machine, he has said that it is correct that Koja had informed him about spotting and lying of PCO machine in his secluded and isolated premises, he has also said that while going towards the premises of Kojaram, 15 to 20 people were with him including Navratan, Shivdhan, Purshotam, Narenderji and Rajaram. Kojaram had earlier spotted the machine there, he led them to that place and he had gone there alone and it was seized after carrying out from Kotha. He has further explained that machine was lifted after putting rope and it was not touched by hand and its fard is Ex.P.6, which does not say the process of lifting it, seized machine was not sealed because it was a big instrument and it was not sent to FSL because it was not needed and chance prints were procured from it at the site, he has also said that it is correct that Shri Gamdur Singh is an expert and incharge of MOV in S.P. Office, who is appointed because of his expertise in procuring chance prints, he has further narrated, the entire process and recording of the information and statements as provided and has denied causing any injury to the accused by using "third degree" and has said that their injuries were got examined on the orders of Magistrate and their medical were submitted with Ex.P.6 charge-sheet.
He has also said that the letters available on the record of the Police Superintendent, discloses that Ex.P.111 was sent after removing the defects, he has also said that he has mentioned the status of the spot and when they visited at the place of occurrence, the cash-drawer of the deceased''s shop was found open without any cash and after identity of the accused, accused persons informed that they had found Rs.400/- from there and on this information, it was concluded that Surender Kumar was killed with an intention of robbery. He has also said that the register and diaries recovered from the possession of the accused persons were relating to the deceased, which were disappeared from the STD-PCO after the occurrence and these were recovered on the information of the accused persons.
19. While examined under Section 313 Cr.P.C., accused Charanjeet alias Chatra, Nathuram alias Nathiya, accused Ruplal alias Rupi and Jasveer alias Seera have denied the offences and have said that they were tortured and the offence was framed forcibly against them, whereas accused Jasveer alias Seera denied the offence and has said that he had been to Bhatinda and had taken transport goods, being driver of a truck on 8.12.2004 from Jaipur to Bhatinda and had come to Anoopgarh on leave on 14.12.2006 only.
20. Perusal of the evidence depicts that several narrations, which feebles the story of the prosecution, have been uttered by the Investigating Officer, he has himself said that the place of occurrence was not cordoned off nor the dog squad was summoned, he has also said that the foot-moulds taken per Ex.P.67 were not procured with the help of the MOV Expert and he did not record information of Kojaram regarding spotting of the PCO machine as an information and neighbours of that area from where the PCO machine was recovered, were not taken as witnesses.
21. He has also admitted that the PCO machine was seized after bringing it out of the "Kotha" and it was taken per rope tying, he has also said that the seized PCO machine was not sealed nor it was sent to FSL, apart from it, it has also emerged that at the time of recovery of the alleged PCO machine many persons were also there, which makes the entire narration of procurement of chance foot moulds from there as a farce.
The Investigating Officer has also said that he had gone totally alone to the place of spotting of PCO machine, investigating Officer Bhanwar Lal has also said that none of the relative of the deceased had ever submitted list of the alleged belongings, which were stolen from the PCO shop in writing nor he prepared any list of the belongings found at the PCO shop. It is also admitted by the IO that relatives of the deceased did not inform about the items of recovery, recovered on 13/4/2005 and 14/04/2005 either to have been stolen or got disappeared from the site of the occurrence after incident so the recoveries of other items apart from PCO machine becomes suspicious and unreliable. Bhawar Lal IO has also said that witnesses Hardev Singh and Shivdhan used to visit at the police station from 12 to 14/4/2005, and he cannot say the motive of their frequent visits, he has also said that he did not call any vicinity witness of recovery because Shivdhan and Hardev Singh came with him and were respectable witnesses, he has also said that prior to arrest of the accused persons on 10/04/2005, disclosures and confessions emerged from the investigation were not got recorded according to lawful procedure before a Magistrate.
22. It is also important that all the witnesses of the prosecution before whom the alleged PCO machine was recovered, have categorically said that they were kept away and outside from the place of spotting and lying of the PCO machine and Investigating Officer had gone alone inside, which has rightly been admitted by IO that he had gone inside alone to the place from where the PCO machine was detected and he has himself said that he brought the machine from inside after tying it with a rope, procedure of which has admittedly not been mentioned in the recovery memo. The recoveries have also been marred because of having been made highly belatedly that too after about four months of the incident.
23. PW.3 Narendra Kumar has also observed in his evidence that he was kept 22 to 30 feet away from the premises of Kojaram and he did not go inside the premises of Kojaram and Thanedarji had gone inside, likewise PW.7 Bhupender Kumar has also narrated similarly by saying that place from where the PCO machine was recovered and brought was not seen by him and he as well as other witnesses and people gathered were standing outside and he has also said that neither he observed that spot nor it was shown to him.
PW9 Shivdhan Ojha has also said that he and some five to seven people went there and CI brought the PCO machine from inside, in the same tone PW.10 Navratan has also said that he stood outside with others and policemen went inside, so the recovery of the alleged PCO machine becomes dubious.
24. The mode of lifting of the PCO machine has admittedly not been disclosed in the recovery memo as stated by the IO and all the recovery witnesses have admittedly not gone inside the premises, where the PCO machine, said to have been spotted and was brought outside by the I.O. Bhanwar Lal and none of the recovery witness was facilitated or accorded opportunity to go inside the alleged premises, where the PCO machine was spotted and allegedly was subsequently brought by I.O. Bhanwarlal. Moreover, it has also emerged that the PCO machine was tied with a rope by the IO in absence of the recovery witnesses and while it was brought outside, it was having a string of the rope, so possibility of touching it by others cannot be ruled out and in such a situation, procurement of alleged fingerprints from the PCO machine becomes non-trustworthy and mysterious.
25. The prosecution case is this, that on the day of occurrence, curfew was operational in Anoopgarh town because of "Kishan Aandolan" and weapon of assault allegedly used in the incident namely Sword and Kappa have been recovered and the PCO machine has also been allegedly recovered from a far off secluded premises of Kojaram but during the course of curfew-orders and in currency of that it does not appear to be plausible that assailants would have moved with such weapons of assault like sword and Kappa, and after committing alleged incident, they would have moved freely to the places, where alleged weapons have shown to have been recovered, likewise the factum of abandoning robbed PCO machine in some secluded area instead of taking it away ignoring alleged gains, is a fact, which does not appear to be cogent and not suiting to the "reason".
26. In a case of circumstantial evidence, it is essential that the chain of the circumstances shall remain unbroken, but in this case that ingredient does also show to be shattered because it has emerged from the evidence that four samples were returned by the FSL with objections, but as and when the said objections were removed and when the alleged samples of the moulds/prints were taken again, is also not candid and proved by the prosecution.
Procurement of the foot moulds is also not much of credence because the places from where the chance moulds stated to have been taken are such places, where many people have visited after the incident, which is very much clear from the prosecution evidence even the place from where the PCO machine has been recovered has remained an open secluded abandoned premises, where Kojaram allegedly spotted the machine and on his information, so many people went there with the police, obviously that "tread" might have lodged, many imprints there and in such a situation obtainment of foot moulds of alleged specific accused becomes unreliable.
27. PW.23 Jyoti Sharma, widow of the deceased has said that when her husband did not return home by nine of the night, she went to look after welbeing to the PCO with her daughter Kajal and she has further said that she returned from the point of ''well'' to her home without ascertaining the reason of delay and without going to the PCO shop and she again went there at 10 p.m with Bhupendra Singh, son of her landlord but the reason of returning back without visiting or taking care of her husband or ascertaining reason of his delay after going near to the PCO is also a circumstance, which infuses doubt, on the story of the prosecution because in normal course a lady whose husband does not turn-up to his home within routine scheduled normal return time of nine p.m. and who leaves with her daughter to ascertain the well-being and reason of delay of her husband, would not come back without ascertaining the same, moreover after reaching just close to her husband''s shop and this kind of fact narration maligns the trustfulness of the case of the prosecution.
28. Accused Charanjeet @ Chatra @ Lamba, Nathuram @ Nathia & Jasveer Singh @ Seera have specifically explained, while examined under Section 313 of Cr.P.C. that they were tortured and beaten by the police. Petrol and chilly powder were sprinkled in their rectum and they were forcibly compelled to extract unlawful.
29. Accused Jasveer Sinogh @ Seera has even explained that he was away to Bhatinda, while transporting goods through transport being a truck driver and was not present in Anoopgarh and such interrogatories have also been put to the Investigating Officer during the course of his cross-examination and PW.16 Bhanwar Lal IO has also admitted in his cross-examination by saying that :-
";g lgh gS fd eqyfteku ds ifjokj ds iqfyl VkpZj djus ls tks muds ''kjhj ij pksVsa vkbZ Fkha mldk eqvk;uk djus dh izkFkZuk dh Fkh ftl ij eftLV~sV ds vkns''k ij eqyftekuksa dk esfMdy eqvk;uk djok;k Fkk tks eSau vkjksi i= ds lkFk is''k fd;k Fkk tks izn''kZ ih0 6 gS] ;g lgh gS fd eqyftekuksa ds ''kjhj ij tkgjk pksV ugha ikbZ xbZ vycRrk pkjksa eqyftekuksa ds ''kjhj ij nnZ gksus dh ckr MkWDVj us fy[kh gS vkSj izsl fdzIlu lykg nh FkhA ;g lgh gS fd vkjksi i= ds lkFk pksV izfrosnu izn''kZ Mh0 7] izn''kZ Mh0 10 gS tks pkjksa eqyfteku dh gS tks jktdh; gkWLihVy jk;flaguxj ls djk;s Fks oks U;kf;d vfHkj{kksa esa rd djk, FksA eSa bl ckjs esa dqN ugha dg ldrk fd izn''kZ Mh0 8 esa of.kZr pksVsa :iyky mQZ :ih fpfdRld us ikap ls 10 fnu dh vof/k dh mlds ''kjhj ij vkbZ os dSls vkbZ D;ksafd tc geus mldk nkf[kyk U;kf;d vfHkj{kk esa djok;k FkkA"
Bhanwar Singh has also said that
";g lgh gS fd fnukad 14-04-2005 dks pkjksa eqyfteku dks U;kf;d vfHkj{kk esa Hkstk tk pqdk FkkA ;g Hkh lgh gS fd pkjksa eqyfteku ds Lislhesu fQaxj fizaV ,d gh ckj fy;s Fks ftUgsa pkal fizUV ls feyku djokus ds fy;s Hkstk tkuk FkkA izn''kZ Mh0 5 izkIr gksus ls igys geus fQaxj fizaV C;wjks ls pkal fiazV vkSj mudh izfr tkap ds fy, Hksth Fkh ml le; geus Lisf''keSu fQaxjfizaV tks pkjksa vfHk;qDrx.k ls fy, Fks os ugha Hksts Fks ijUrq izn''kZ Mh0 5 izkIr gksus ds ckn geus eftLV~sV ds lkeus fnukad 12-04-2005 dks fy, x, pkjksa eqyfteku ds LisfleSu fQaxj fizaV dks pkal fiazV ls tkap djus ds fy, Hkstk FkkA izn''kZ Mh0 5 esa ;g vkifRr mBkbZ xbZ gS fd Lisflesu pkal fiazV dkchy f''kuk[rxh ugha gS geus blds ckn tks Lisf''kesu fQaxj fizaV fy, gq, Fks ftUgsa ge Hkstuk lgou ls Hkwy x, FksA"
30. The incident belongs to the evening of 10/12/2004, whereas all the accused persons have been arrested on 10/04/2005 in a sequential way by showing, a gap of about one hour and recoveries have also been made thereafter on 10/04/2005 and the memos relating to the recoveries, lacks mentioning of the time. PW.16 Bhanwar Lal has also said that :-
";g lgh gS fd izn''kZ ih0 129 esa tks pj.kthr dh gS mlesa b ls th ykbu esa ftl ih0lh0vks0 esa ih0lh0vks0 okys dk dRy fd;k Fkk eSaus fjdkMZ fd;k blh izdkj izn''kZ ih0 131 ls 133 rd esa Hkh gwcgw b ls th tSlh gh tqeZ bdckyh gS] QnZ bfRryk 129 ls 133 rd tks bfRryk ntZ dh gS mlesa pkjksa gh eqyfteku dh bfRryk gwcgw ,d tSlh gh gS fdlh Hkh ''kCn dk gsjQsj ugha gSA"
And all these similar kind of factual mentioning, arrest and recoveries of same one day do not appear to be reliable rather makes the story of the prosecution doubtful and untrustworthy.
31. The principle of circumstantial evidence has been reiterated by the Hon''ble Supreme Court in a plethora of cases. In Bodhraj @ Bodha And Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein the Hon''ble Supreme Court quoted number of judgments and held as under:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
Hon''ble Apex Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21)
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, the Hon''ble Supreme Court held as under:
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205, Sampath Kumar v. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions.
32. Appraisal of the evidence as dwelt above lacks in connecting the accused persons beyond the norms of reasonable doubt with the crime, in the matters of circumstantial evidence, the Courts are to examine entire evidence in its totality and has to ensure that the only inference, which can be drawn from the evidence is the guilt of the accused, but in the case under hand the recoveries are prostrated by months together and fingerprints and foot-moulds are also of beleaguered status, as discussed earlier.
33. There are vital infirmities in the evidence as dealt above, defects pointed out by FSL by return of the samples have also not been addressed in a connecting way. The prosecution has failed to adduce positive evidence linking the accused persons with the crime. It is also dubious as to how four armed persons would travel with deadly weapons from distance place during the operation of "curfew" and would return back safely after committing alleged crime with blood stained weapons and allegedly concealing them at a distant and latent place, after throwing away alleged robbed PCO machine in a far isolated premises.
34. Thus, we find many infirmities and loopholes in the case of the prosecution in establishing the guilt of the accused persons on the basis of the circumstantial evidence.
35. Therefore, we are of the view that prosecution has failed to prove its case beyond the bounds of reasonable doubt, so in the given situation, it appears to be just and lawful to extend benefit of doubt to the accused persons.
36. For the reasons and deliberations dwelt above, we feel that the impugned judgment is not worthy to be sustained and is liable to be set aside and quashed.
37. Resultantly, Appeals filed by the accused persons bearing D.B. Criminal Appeal No. 185/2007, Charanjeet @ Chatra @ Lamba, D.B. Criminal Appeal No. 128/2007 Jasveer Singh @ Seera and D.B. Criminal Appeal No. 199/2007 Nathuram @ Nathia are allowed.
38. As such, the impugned judgment passed by the trial court is hereby quashed and set aside and accused Charanjeet @ Chatra @ Lamba, Jasveer Singh @ Seera and Nathuram @ Nathia are acquitted from all the charges, so they be released forthwith, unless their custody is needed in any other matter.
39. Considering the provisions of Section 437-A Cr.P.C., the accused-appellants Charanjeet @ Chatra @ Lamba, Jasveer Singh @ Seera and Nathuram @ Nathia are directed to furnish personal bond in the sum of Rs. 30,000 with a surety bond in the like amount before the learned trial Court, which shall remain effective for a period of six months to the fact that in the event of filing of Special Leave Petition against the judgment for grant of leave, the appellants, on the receipt of notice thereof, shall appear before Hon''ble the Supreme Court.
