Bhanwar Lal Jat Vs State of Rajasthan

Gopal Krishan Vyas, J.—The instant Criminal Appeal has been filed by the appellants under Section 374 (2) Cr.P.C. challenging the judgment of conviction and sentence dated 28.2.2007 passed by the learned Addl. Sessions Judge (FT), Nagaur, (for brevity, hereinafter referred to as ''Trial Court'') in Session Case No. 24/2006, whereby the learned Trial Court convicted the accused appellants for the offences under Sections 302/149, 460 and 148 of I.P.C. and passed following sentence:

2. As per brief facts of the case, on 20.2.2006 at about 9.30 a.m. a telephonic information was received at Police Station Surpalia, given by A.S.I.- Bhanwar lal of Loonkaransar, to the effect that his niece, namely, Sampu, has received burnt injury at Village Akoda, where he is reaching along with his other relatives, therefore, a request was made that police party may also reach there. The aforesaid information was recorded in the Rojnamcha (Ex.P-8) of police station. Thereafter, the S.H.O., Police Station Surpalia, reached at the place of occurrence, where complainant, Narsi Ram (PW-9) submitted a written report (Ex.P-11). In the report it was alleged by the complainant that his daughter, Smt. Sampu, was married to Mangilal about 8 years back and relations between the couple were cordial. On 19.2.2006 his daughter, Sampu, made a telephonic call to him and informed that her neighbours (appellants herein) are quarrelling for division of land and not allowing to take water from the water tank, and gave threat also to kill her. According to complainant, his daughter, Sampu, requested him to come and settle the issue. The complainant assured his daughter that he will come there to settle the issue within 2-3 days.

3. Today in the morning, Nathu Ram and 2-3 other persons came and took him to Village Akoda, where he saw that dead body of his daughter was lying in burnt condition in the house. Upon enquiry from the Sampu''s mother-in-law and sister-in-law, it was informed that in the night at about 11.30 p.m. appellants forcibly carried away Sampu from her room when she was sleeping in the room, and tied up her with iron chain and lit fire. The sister-in-law (uk.knh), Sharda, who was in the room within Sampu was bolted inside the room and upon raising hut and cry, her grandmother, Smt. Kesar Devi, woke up and opened the gate and Sharda came out immediately and rushed to the village to give information of the incident to one Mahipal and Basti Ram. According to complainant, his son-in-law, Mangilal, was out of village on the date of occurrence.

4. Upon the aforesaid information, F.I.R. No. 5/2006 (Ex.P-29) was registers at Police Station Surpalia, under Sections 143, 302 of I.P.C. In the investigation on spot details of physical condition of deceased, Sampu, was recorded vide Ex.P-1, Panchnama of body of deceased and details of place of occurrence were recorded in Ex.P-2 and Ex.P-3 respectively. Photographs of the spot were taken vide Ex.P-15 to P-24. some pieces of bangles and soil were taken in possession vide Ex.P-4. The dead body of Sampu was sent to the Govt. Hospital for postmortem and from where postmortem report (Ex.P-13) was obtained for further investigation. Viscera samples were taken by the doctor vide Ex.P-14 and the same was sent to FSL for examination. The dead body of deceased, Sampu was handed over to husband, Mangilal and her father, Narsi Ram vide Ex.P-5. The statements of Sharda under Sections 161 and 164 of Cr.P.C. were recorded by the Investigating Officer and the Magistrate respectively.

5. On the basis of evidence collected in investigation all the accused appellants, Bhanwarlal, Luna Ram, Raju Ram, Bhagwana Ram, Ramniwas, Surajkaran and Mahendra were arrested vide Exs.P-6, P-7, P-8, P-9, P-10, P-32 and P-33. After completing the investigation from them in the case, charge sheet was filed against the accused appellant in the Court of Judicial Magistrate, Jayal, under Sections 147,148 and 302/149 of I.P.C. on 15.4.2006.

6. Learned Magistrate committed the case for trial to the Court of Addl. Sessions Judge, Nagaur, but later on it was transferred by the Sessions Judge, Merta vide order dated 24.5.2006 to the Court of Addl. Sessions Judge (FT), Nagaur, for trial.

7. The learned Trial Court after providing opportunity of hearing framed charges against the accused appellants under Sections 148, 460 and 302/149 of I.P.C. all the accused appellant denied the charges levelled against them for the alleged offences and prayed for trial.

8. In the trial, oral statements of 23 prosecution witnesses were recorded and certain documents were also exhibited to prove the prosecution case. Thereafter, statements of accused appellants were recorded under Section 313 Cr.P.C. on the basis of allegations levelled by the prosecution witnesses. All the accused appellants denied the allegations levelled by the prosecution witnesses and said they have falsely been implicated in the case, they are innocent and alleged that Mangilal, husband of deceased, Sharda, and one Jyani that killed Sampu and falsely implicated them. In defence, no evidence was produced by the appellants.

9. The learned Trial Court after recording the entire evidence in the trial granted an opportunity of hearing to both the parties, thereafter finally decided the case vide judgment dated 28.2.2007 and held all the accused appellants guilty for the offences under Sections 460,148 and 302/149 of I.P.C. and passed sentenced, mentioned above.

10. In this appeal, at the threshold, learned Counsel for the appellants, Mr. M.K. Garg, and Mr. Dhirendra Singh, submitted that they are not challenging the incident and conviction of three accused, namely, Bhanwarlal, Rajuram and Luna Ram, but argued vehemently that Ramniwas and Bhagwana Ram, have been falsely implicated in the case on the basis of improved statements of witnesses, and allegations of the complainant, who in fact, was not even present in the village Akoda.

11. In support of above argument, learned Counsel for the appellants first of all invited our attention towards the statements of Sharda (PW-14) who was present in the room where incident took place. She during the course of her statements recorded under Sections 161 Cr.P.C. (Ex.D/9) levelled allegations only against Bhanwarlal S/o Bhagwana Ram, Luna Ram S/o Bhagwana Ram, and Rajuram S/o Ramniwas and said that they entered in the room and forcibly took Sampu, outside and bolted her in the room. It has further been averred by her that after taking Sampu outside the room, the aforesaid accused appellants by poured kerosene upon her body and set her at fire. Upon raising hue and cry by her, the door was opened by the grandmother (Nani), Smt. Kesar Devi (PW-15) and thereafter gave information to the villagers.

12. After recording above statement of alleged eye-witness, the statement (Ex.P-12) were recorded under Section 164 Cr.P.C. upon request of Investigating Officer by the Magistrate in which allegations were levelled by her against Bhanwarlal, Lunaram, Rajesh Ram and one Mahendra and no specific allegations were levelled against accused, Ramniwas and Bhagwana Ram. However, in the statements recorded during the course of trial as PW-14, she has categorically improved her statement and made allegations against Ramniwas and Bhagwana Ram also for their participation.

13. In the cross-examination, she (PW-14-Sharda) was confronted from the statements recorded under Sections 161 and 164 Cr.P.C., then, it is replied by her that everything was narrated by her with regard to role of Ramniwas and Bhagwana Ram to the police and Magistrate, but she had no knowledge as to why these allegations are not incorporated in the statements recorded under Section 161 Cr.P.C. (Ex.D-9) and under Section 164 Cr.P.C. (Ex.P-12).

14. While inviting attention towards the statements of PW-14 Sharda and PW-15, Kesar Devi, it is submitted that a bare perusal of statements of these witnesses it will reveal that they cannot be treated to be eye-witnesses of the incident because according to their statements recorded under Section 161 Cr.P.C., there were allegations against Bhanwar Lai, Luna Ram, Raju Ram only and there is no specific allegation against Ramniwas and Bhagwana Ram except that in the morning a quarrel took place for using water from the water tank and that they gave threat to Sampu, deceased to kill her. Therefore, even if the entire prosecution evidence, is accepted to be true, then also, the finding of conviction recorded by the Trial Court against these two appellants, namely, Ramniwas and Bhagwana Ram, is not sustainable in the eye of law because the finding given by the Trial Court against these appellants are based upon improvement in the statements of PW-14 and PW-15, Sharda and Kesar Devi, respectively, therefore, conviction and sentence passed against accused appellants, Ramniwas and Bhagwana Ram for the said offences deserve to be quashed and set aside.

15. E-Converso, learned Public Prosecutor vehemently argued that there is no error in the findings arrived at by the learned Trial Court in recording I conviction against all the accused appellants because there is evidence of eye-witnesses, namely, Sharda (PW-14) and Smt. Kesar Devi (PW-15) in which it is stated by them that threatening was given to Smt. Sampu, by all the accused appellants, so also, there is statement to prove their presence at the time oil occurrence and their participation. Therefore, no interference is called for in the finding of guilt so as to acquit the accused appellants, namely, Ramniwas and Bhagwana Ram, from the charges levelled against them. Learned Public Prosecutor submit that this appeal may kindly be dismissed.

16. After hearing the learned Counsel for the parties, we have perused the I entire evidence in the light of arguments advanced by the parties. It emerges from the arguments of learned Counsel for the appellants that the appellants are not challenging the finding of conviction and sentence passed against three accused appellants, namely, Bhanwar Lal, Raju Ram and Luna Ram, but challenging the findings only to the extent of conviction and sentence passed against accused appellants, Ramniwas and Bhagwana Ram, on the ground that their conviction is based upon the testimony of so-called eye-witness PW-14, Sharda and PW-15 Smt. Kesar Devi, because as per their statements, the incident was not seen by them.

17. To consider the above argument, we have perused the statements of Sharda (Ex.D-9) recorded under Section 161 Cr.P.C. during the course of investigation. In the said statements, following allegations were levelled soon after the occurrence by her on 22.2.2006. (Relevant extract):

"''kkjnk mQZ fephZ D/o Jh tho.kjke tkfr tkV mez 15 o"kZ fuoklh Msg gky ufugky vkdksM+k us nfj;kQ~r iqfyl ij c;ku fn;k fd fnukad 19-02-2006 dks esjk ekek ekaxhyky esjs firkth ls feyus lqcg tYnh Ms pyk x;k Fkk esjs ekek ekaxhyky o ukukth o muds yM+dksa ds vkil esa ikuh gkSn ds caVokjs dks ysdj vucu py jgh gSA fnukad 19-02-2006 dks lqcg djhcu 10 cts eSa o esjh ekeh lEiw nsoh gekjs gkSn ij ikuh ysus xbZ rc Hkaojyky] yw.kkjke] jktwjke] iIiw mQZ lwjtdj.k us o vkSjrksa us gekjs dks gkSn ls ikuh ugha ykus fn;k o xkyh xykSp fd;k dgk fd gkSn ij ikuh Hkjus pyh xbZ rks tku ls ekj nsaxs rc esjh ekeh lEiw o esjh ukuh us dgk gkSn gekjk Hkh gS ikuh Hkjsaxs bl ckr dks ysdj esjh ekeh vius ihgj firkth dks nqnkokl esa VsyhQksu ij crk;k fd firkth vki vkdj gekjk caVokjk djok nks ugha rks ;g esjs dks ekj nsaxs rc ekeh us esjs dks crk;k esjs firkth uss dgk gS fd nks rhu fnu pqi jgks yM+kbZ er djks eSa xkao ls vkneh ysdj vk jgk gwWa vkidk caVokjk lgh--- djok nsaxsa fQj jkf= dks eSa o esjh ekeh ,d lkFk ?kj ds vUnj dejs esa lks xbZ o esjh ukuh o esjh eklh dh csVh cfgu yhyk ?kj ds ckgj okys dejs esa lks xbZ Fkh rc jkr dks djhc 11&11 1@2 cts Hkaojyky S/o Hkxokukjke o yw.kkjke S/o Hkxokukjke] jktwjke S/o jkefuokl fuoklh vkdksM+k dejs esa vk;s o Hkk.ktk iIiw mQZ lqjtdj.k S/o Hkxkjke tkV fuoklh tksFkh.kk ckgj [kM+k jgk bu rhuksa us ekeh lEiw nsoh dks tcju mBkdj dejs ds ckgj ys x;s o esjs dejs dk njoktk can djds dqUnk ckgj ls yxk fn;k eSaus tksj tksj ls vkokt dh ekeh dks dgka ys tk jgs gS njoktk [kksyks fQj ekeh dks ?klhV djds cjkens ds vUnj lky esa dejk ftlds fdokM+ ugha yxs gq, vUnj ys x;s vkSj ?kklysV dsjksflu ekeh ds mij Mkyk rks ekeh fpYykbZ er ekjks esjs mij ?kklysV er Mkyks ekjs js ekjs eq>s D;ksa ekj jgs gks fQj iksy esa ys tkdj lkady ls cka/kk rks ekeh us dgk lkady ls D;ksa cka/k jgs gks lHkh us tcju idM+ esjh ekeh ds vkx yxk nh vkx dh yiVsa mBus yxh eSa lkjh ?kVuk dks dejs ds vUnj cSBh lqu jgh Fkh eSaus tksj tksj ls vkokt yxkbZ ukuh njoktk [kksyks ekeh dks ekj jgs gS fQj ekeh dks tykdj ;s lc Hkkx x;s ukuh tc mBh rc mlus esjh ekeh lEiw nsoh dks tyrs ns[kk rks fpYykbZ jke js jke nq"Vksa us ekj nh js ekj nh eSaus vkokt nh ukuh esjk dqUnk [kksy ukuh us njoktk [kksyk eSa ckgj vkbZ ekeh ty jgh Fkh eSaus lkjh ckr esjh ukuh dks crkbZ fQj eSa iM+kSl esa esjs ?kj ds lkeus nqykjke o uRFkqjke dk ?kj gS ogka xbZ mudks lkjh ckr crkbZ rks mUgksaus dgk xkao esa tkdj crkvks rc eSa cLrhjke o efgiky dks lkjh ckr crkbZ oks gekjs ?kj vk;s mUgksaus Hkh esjh ekeh lEiw nsoh dks tyrs ns[kk esjh ekeh dks Hkaojyky] yw.kkjke] jktwjke] iIiw mQZ lqjtdj.k us tcjnLrh tykdj ekj MkykA"

18. Upon perusal of the above statement, it is obvious that no allegation was levelled against Ramniwas, and Bhagwana Ram, in the statements of Smt. Kesar Devi were also recorded under Section 161 Cr.P.C. in which same allegations were levelled by her in Ex.D/10.

19. In the investigation, statements of Sharda were recorded under Section 164 Cr.P.C. also on 23.2.2006 before the Magistrate, in which following allegations were levelled by her: -

"fnukad 19-02-2006 dh ckr gSA esjs ekek ekaxhyky o ukukth js[kkjke vkSj jkefuokl] Hkxokukjke] Hkaojyky] yw.kkjke] buds chp esa ikuh ds gkSn ds caVokjs dks ysdj >xM+k pyrk gSA fnukad 19-02-2006 dks eSa vkSj esjh ekeh lEiwnsoh tc ikuh ysus gkSn ij x;s rks budh vkSjrksa us gekjs lkFk >xM+k fd;k vkSj gesa ikuh ugha ysus fn;kA rc esjh ekeh o ukuh us dgk fd gkSn gekjk Hkh gSA fQj >xM+k gks x;k rks jktw S/o jkefuokl [kqn] Hkxokukjke] Hkaojyky vkSj yw.kkjke vkSj jkefuokl ds Hkk.ktk uke ''kk;n iIiw gS] bu lHkh us gesa /kedh nh rqe T;knk >i >i er djks ugha rks ekj nsaxsA vkSj dgka fd fnu rqEgkjk gS rks jkr gekjh gSA fQj esjh ekeh lEiw nsoh us vius firk th ujlh th dks Qksu fd;k fd dqN vkneh ysdj vkvks vkSj fuiVkjk djksA rc muds firkth us dgk fd lqcg ge vk jgs gSA ;s ckr eq>s lEiw nsoh us crkbZA fQj jkr dks eSa vkSj esjh ekeh lEiw dejs esa ;kfu lkG lky esa lks x,A ukuh dejs esa lks x;hA esjh ekeh dks xgjh uhan vk xbZ FkhA eq>s tkxk ehBk FkkA pkan mdk gqvk ugha Fkk] VkbZe eq>s irk ugha ijUrq vanktu lk<+s nl ;k lk<+s X;kjg cts gksaxs fd esjs mij jkefuokl us ykbZV dh jks''kuh Qsadh rc eSaus dgk dq.k gSA fQj ykbZV dh jks''kuh ekeh ds mij Qsadh vkSj Hkaojyky S/o Hkxokukjke us esjh ekeh dk daB idM+kA yw.kkjke S/o Hkxokukjke us esjh ekeh ds gkFk idM+s jkts''k jke us ckFk Mkyh fQj egsUnz S/o jkefuokl us esjh ekeh dh Vkaxs idM+hA Hkk.ktk iIiw ckgj [kM+k FkkA jkefuokl ds gkFk esa ykbZV FkhA ;s lHkh esjh ekeh dks idM+ dj ckgj ys x,A eSa fpYykbZA fQj bu yksxksa us eq>s lky esa gh can djds ckgj ls dqUnk yxk fn;kA ,d ywxkbZ tks jkefuokl dh Fkh oks ckgj [kM+h FkhA fQj bu yksxksa us feydj esjh ekeh dks tyk fn;kA eq>s ?kklysV dh cncw vkbZA eSa fpYykrh jghA fQj esjh ukuh us dqUnk [kksykA eSaus ns[kk fd ekeh ty jgh FkhA eSa jksrs fpYykrs nqykjke ukukth ds ;gka xbZ vkSj lkjh ckr crkbZ rks mUgksaus dgk fd eq>ls dqN ugha gksxk rw cLrh ekek ds ikl tkA rc cLrh ekek ds ikl xbZ rks mUgksaus dgk fd eSa vdsyk ugha pywaxk rw eghiky ekek dks cqyk ykA"

20. In the Court, during the trial, statements of PW-14, Sharda, were recorded, in which following allegations were levelled by her. The relevant portion of the statement with regard to incident is as follows:

"vkt ls N% ekg igys dh ckr gSa] tks lqcg vkB&lk<+s vkB cts ds vkl&ikl gqbZ Fkh] eSa vkSj esjh ekeh gkSn ij ikuh ysus ds fy, x;h rc jkefuokl dh vkSjr lqaVh vkSj jkefuokl dh eka mldk uke esjs dks irk ugha gSa] jkefuokl] Hkao:] Hkxokuk] yq.kk] jktq] iIiq] egsUnz] lwaVh lHkh us ikuh ugha fudkyus ds fy, esjs dks vksj esjh ekeh dks dgk Fkk] ekeh us dgk fd ikuh rqe Hkh fi;ks vkSj ge Hkh ikuh ih;saxs fljksyk gSa] fQj eqy0 us xkyh;kWa fudkyh Fkh] jkefuokl us dgk fd T;knk pik pi fd;k rks fnu rqEgkjk gS vkSj jkr gekjh gSa] lqxukjke vkSj nqykjke Hkh ogkWa ij vk;s Fks vkSj dgk fd Nksfj;ksa dks D;ksa xkfy;kWa fudky jgs gks rks eqy0 us dgk rqEgkjs dks D;k t:j gSa] ge rks bldks ekjsaxs rc esjh ekeh o ukuh us esjs ekek ekaxhyky dks Msg xkao lk<+s ukS okyh cl ls Hkstk Fkk vkSj dgk fd tho.k th dks tkdj dgks fd bu eqy0 dks le>kos ugha rks ;g ekjs dks ekjsaxsA fQj ekaxhyky Msg xkWao pyk x;k FkkA fQj eSa vkSj esjh ekeh ?kj vk x;s Fks fQj esjh ekeh lEiw us 4&5 cts ds chp Qksu fd;k tks nq/kkokl vius firk dks VsfyQksu fd;k fd eqy0 dks vkdj le>kvks] gesa gkSn ls ikuh ugha Hkjus nsrs vkSj xkfy;ka fudkyrs gSA VsfyQksu ,l0Vh0Mh0 ls fd;k Fkk] lEiw ds firkth us dgk fd vkt rks eSa ugha vk ldrk gwWa eSa dy ''kke rd vkmaxk esjs dks bl ckr dk blfy, irk gS D;ksafd eSa ekeh ds lkFk gh FkhA VsfyQksu djds fQj ge ?kj ij vk x;s FksA esjh ukuh] ekek ekaxhyky o ekeh lEiw ds chp laca/k Bhd FksA eSa >xM+k gksus ls Ms<+ ekg igys vius ufugky vkdksM+k vk;h Fkh D;ksafd esjs ekek dk deBk py jgk FkkA"

"fQj ,l0Vh0Mh0 ls ?kj ij vk x;s rks ekeh us HkSal nqbZ vkSj fQj [kkuk okuk [kkdj lks x;s Fks] eSaus o ekeh us lkFk esa [kkuk [kk;k Fkk vkSj yhyk vkSj ukuh us lkFk esa [kkuk [kk;k FkkA fQj ge yksx lks x;s Fks] eSa o esjh ekeh lky esa lks jgs Fks rFkk esjh ukuh o yhyk ckgj okys dejs esa lks jgs FksA eSa o esjh ekeh vkil esa gFkkbZ dj jgs Fks] ckrs djrs djrs ekeh dks uhan vk x;h FkhA esjs dks iqjh uhan ugha vk;h Fkh tkxh ehBh FkhA eSa vkSj ekeh ''kkfey gh lks gq, FkhA gekjs lky ds njokts ds vanj dk dqUnk ugha Fkk njoktk oSls gh can fd;k gqvk FkkA rc jkefuokl us ,dne njoktk [kksyk] Hkao:] jkefuokl ds ikl cSVjh Fkh] mlds lkFk Hkao:] yw.kk] jktw] egsUnz ;g yksx lky esa vk;s Fks vkSj rhu tus ckgj [kM+s FksA jkefuokl us cSVjh ls igys esjs eqag ij ykbZV Mkyh Fkh rc eSaus dgk fd dkSu gS] fQj ekeh ds eqag ij ykbZV Mkyh fQj Hkao: us ekeh ds daB idM+s vkSj ,d lkFk ls eqag esa irk ugha D;k Mkyk fQj eqag ij gkFk ns fn;k Fkk] ekeh b/kj m/kj gkFk ;kfu NqM+kus dh dksf''k''k dh rks yw.ks us gkFk idM+ fy;k Fkk] egsUnz us Vkaxs idM+ fy;s Fks] jktw us ckFk Mkyh] fQj ekeh dks ckgj fudky fn;k tks lky ls ckgj fudky fn;k Fkk fQj esjs lky ds ckgj ls dqUnk yxk fn;k eSa lky esa gh Fkh] fQj eSa fpYykbZ Fkh rc esjs dks dsjksflu dh cncw vkbZ Fkh dsjksflu dh cncw vkus ls eSa vkSj fpYykbZ Fkh] esjs fpYykus ls esjh ukuh mBh FkhA fQj eSaus fpYykdj dgk fd ukuh dqUnk [kksy ekeh dks ckydj ekjh nh gSaA fQj esjh ukuh us lky dk dqUnk [kksyk FkkA eSaus ckgj vkdj ns[kk fd yk''k ty jgh Fkh vkSj ikl esa dsjksflu fc[kjk gqvk FkkA ckgj vkbZ rc jkefuokl] Hkao:] egsUnz] jkts] yw.kk] caVh] Hkxokukjke] iIiw dks Hkkxrs gq, ns[kk Fkk tks gekjh cjlkyh ds njokts ds ckgj pys x;s Fks fQj eSaus o esjh ukuh us ns[kdj tksj tksj ls fpYykuk ''kq: fd;k FkkA"

21. Upon perusal of the aforesaid statements, coupled with other evidence, it is obvious that in first statement of Sharda, PW-14, the so-called eye-witness, no allegation was levelled by her accused appellants, Ramniwas and Bhagwana Ram, However, in the later statements recorded under Section 164 Cr.P.C., and in the Court, certain allegations were levelled with regard to their presence. It is also required to be observed that although both these witnesses are narrating facts of incident, took place on the date of occurrence, but upon perusal of their entire statements, it cannot be presumed that they are eye-witness of the incident.

22. In the criminal law it is basic principle of law that prosecution should prove its case beyond reasonable doubt so as to hold accused guilty for the offence. Every aspect of the matter is required to be proved by leading trustworthy and reliable evidence. In the case of Sangili v. State of Tamil Nadu reported in AIR 2014 SC 3756, the Hon''ble Apex Court has laid down the law that prosecution must prove all the circumstances to prove the allegation of participation of the accused in the alleged crime.

23. In the case of Sangili (supra) the Hon''ble Supreme Court gave following verdict upon consideration of circumstantial evidence, which reads as under:

23. In Mani v. State of Tamil Nadu, this Court made following pertinent observation on this very aspect:

26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....

24. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, in the following manner:

6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence.

25. Likewise, in Mustkeem @ Sirajudeen v. State of Rajasthan this Court observed as under:

24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185)

(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be'' fully established;

(ii) 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;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) 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.

24. However, in the instant case, the sole eye-witness, PW-14 Sharda, improved her statement, which is obvious from the fact that in the first statement recorded under Section 161 Cr.P.C. no allegation was levelled by her against the accused appellants, Ramniwas and Bhagwana Ram. Further, in thee statements recorded under Section 164 Cr.P.C., the only allegation was made, was that Ramniwas was having a torch in his hands and in the statement recorded in the Court, it is alleged that he was present at the time of occurrence Admittedly, the complainant and accused party are close relatives, they were residing in the same premises, where occurrence took place and there was a dispute for taking water from the tank and division of land. But, it is also obvious that no specific allegation was levelled by the witness PW-14 Sharda, against accused, Ramniwas and Bhagwana Ram, therefore, even if the prosecution has proved the incident and participation of three accused, namely, Bhanwar lal, Raju Ram and Luna Ram, but has failed to prove its case beyond reasonable doubt qua the accused appellants, Ramniwas and Bhagwana Ram.

25. Admittedly, the entire prosecution case is based upon the testimony of two witnesses, namely, PW-14 Sharda and PW-15 Smt. Kesar Devi, but upon perusal of the statements of these two witnesses recorded under Section 161 Cr.P.C., it is abundantly clear that no allegation was levelled by both these witnesses. But, later on, in the statement of Sharda recorded under Section 164 Cr.P.C., some element of presence was disclosed by her. However, again no allegation was made for participation of accused appellants in the commission of crime. Both the witnesses proved their version during the trial as prosecution witness and in the cross-examination, on a specific question was put to them as to why allegation levelled in the statement against accused appellant, Ramniwas and Bhagwana Ram, were disclosed before the police, no satisfactory answer was given by them. Therefore, the allegation levelled against both the accused appellants, Ramniwas and Bhagwana Ram, are not trustworthy and doubtful.

26. Upon consideration of entire evidence, was are of the opinion that prosecution has failed to establish case against the accused appellants, Ramniwas and Bhagwana Ram that they shared a common object so as to kill Smt. Sampu. Accused appellants, Ramniwas and Bhagwana Ram, were arrayed as accused only on the basis of statements given by PW-14 Sharda, on 23.2.2006 recorded under Section 164 Cr.P.C. before that in the statements recorded under Section 161 Cr.P.C., no allegation was levelled by her. In the said statements recorded under Section 164 Cr.P.C. nothing has been said with regard to participation of both these appellants except their presence during the day hours when some quarrel took place in between rival parties, therefore, conviction of appellants, Ramniwas and Bhagwana Ram, is not sustainable in law.

27. In view of above, we have no hesitation to hold that finding of guilty arrived lived by the learned Trial Court and recording conviction against the accused appellants, Ramniwas and Bhagwana Ram, is not based upon reliable or trustworthy evidence of eye-witnesses viz. PW-14, Sharda and PW-15, Smt. Kesar Devi.

28. Consequently, the instant criminal appeal is partly allowed so far as accused appellants, namely, Ramniwas S/o Sukh Ram and Bhagwana Ram, are concerned, and the conviction and sentence recorded against accused appellants, Ramniwas and Bhagwana Ram, by the learned Addl. Sessions Judge (FT), Nagaur, vide judgment dated 28.2.2007 in Session Case No. 24/2006, is hereby quashed and set aside while giving them benefit of doubt. The appellants, Ramniwas and Bhagwana Ram are on bail, their bail bonds are, accordingly, discharged.

29. However, the criminal appeal filed by accused appellants, Bhanwar Lal, Luna Ram and Raju Ram, is hereby dismissed.

30. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Ramniwas and Bhagwana Ram, are directed to forthwith furnish personal bond in the sum of Rs. 20,000/- 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 Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon''ble the Supreme Court.