Vijay Kumar Vs. State of Rajasthan
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Head Note
Indian Penal Code,1860 - Section 498-A , Section 406 , Section 34 , The Code of Criminal Procedure, 1973 - Section 125 , Section 482 , The Indian Evidence Act, 1872 - Section 27
Murder - Conviction - Sustainability - Appellants (accused) allegedly committed murder of deceased (employee of hospital) and thereby committed offences u/ss. 120B, 302, 406 and 382 of IPC - Trial Court found appellants guilty of said offences and sentenced them to undergo imprisonment for life - Aggrieved appellants filed an appeal before HC and by impugned judgment allowed appeals of other accused and dismissed appeals of appellant nos. 1 and 3 - Hence, instant appeals preferred by appellant nos. 1 and 3 - Whether impugned conviction of appellants was sustainable - Held, PW10(brother in- law of deceased) has made material improvement while deposing in Court and such evidence could not be safe to rely upon - Thus evidence adduced by prosecution to prove the circumstances 2 and 3 did not pass the test of credibility and was liable for rejection - Recoveries were made from respective houses of appellants where their families were residing - In fact appellant no. 3 obtained the key from his father for opening the lock - It could not be said that articles were in exclusive possession of appellants and they came to be recovered only on the information furnished by them - Identification proceedings of articles was conducted by PW83 (Tahsildar) and who claimed to have prepared 72 identification reports - In cross- examination PW83 admitted that there were policemen present at the time of identification and he did not know the articles brought to him were in sealed packets or in open condition and he did not remember whether seal used on the packets was official seal since 12 years have already passed - Even PW83 not know as to who has arranged for articles having similarity to the seized articles for the purpose of identification and identification proceedings were completed in a single day - PW 83 even after looking at the Exh.P5 (recovery Memo) was unable to say how many articles of each kind were mixed up with articles to be identified and whether similar articles were new or old, used or unused etc - None of the precaution that ought to have taken to ensure fair identification was ever taken and no weight could be attached to the evidence of identification of property - Though Trial Court observed in its judgment that lack of proper identification of articles, it erroneously proceeded further to accept the same - Recovery of weapons namely knife and screw- driver claimed to have been made on the information given by appellant no. 1 was also doubtful - Even assuming to be true that recovery of certain incriminating articles were made at the instance of the accused u/s. 27 of the Act, that by itself could not form the basis of conviction - Both Courts below fell in error in coming to conclusion that prosecution established its case based on circumstantial evidence beyond all reasonable doubt - Benefit of doubt would have to be given to both appellants - Impugned conviction and sentence imposed on appellants by Courts below were set aside - Appeals allowed.
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