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2007 DIGILAW 1657 (RAJ)

Pappu Papya v. State of Rajasthan

2007-09-03

GUMAN SINGH, SHIV KUMAR SHARMA

body2007
Judgment Guman Singh, J.-Challenge in this appeal is to the Judgment dated 21.04.2003 passed by learned Additional District and Sessions Judge, (Fast Track) No. 2, Sikar, Camp Neem-Ka-Thana, is Sessions Case No. 33/02, whereby Pappu alias Papya appellant herein, was convicted and sentenced as under- Under Section 302 IPC : To suffer imprisonment for life and fine of Rs. 1,000/-in default to further suffer additional imprisonment for a period of six months. 2. Briefly stated, the prosecution case is that a written report was lodged by Jagdish Prasad Balal, resident of Dokan, on 012.2001 at 10.15 p.m. at the Police Station, Patan, District Sikar, wherein it was stated that two years old Vishal, son of his brother Suresh Chandra was reported missing by the ladies, at about 5.30 in the evening when the informant and others returned after arranging refreshment etc. for marriage party of their uncles daughter. Vishal was also searched by them but he could not be traced, Then, Pappu Dhanka, who was in drunken state, asked the informant and his uncle Sardara Ram to take vehicle towards the village school in search of the child, Sardara Ram accompanied him but returned with the vehicle without any clue. Then Pappu Dhanka again asked the informant to accompany him with a torch towards the well of Chandrabhan Singh in search of the child. The well was about 1/2 km. away from the home. On reaching to the well, the light of torch was though not properly focused in the well but Pappu quipped that some thing was lying in the well. On properly focusing the light, the informant sighted the child lying in the well. On this, informant started weeping. People from the village gathered around the well. The child was taken out of the well and was taken to the hospital at Patan, where he was declared dead. It was suspected that the child was thrown in the well by Pappu Dhanka. On receipt of the report, a case under Sections 302, 201 IPC was registered and investigation commenced. During the investigation, autopsy on the dead body was conducted, memos were drawn, statements of the witnesses were recorded and challan was filed. The case came up for trial before the Additional Sessions Judge (Fast Track) No. 2, Sikar, Camp Neem-Ka-Thana. Charges were framed under Section 302 IPC against the appellant who claimed trial. During the investigation, autopsy on the dead body was conducted, memos were drawn, statements of the witnesses were recorded and challan was filed. The case came up for trial before the Additional Sessions Judge (Fast Track) No. 2, Sikar, Camp Neem-Ka-Thana. Charges were framed under Section 302 IPC against the appellant who claimed trial. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. 3. We have given our anxious consideration to the submissions advanced before us and scrutinized the record. 4. Vide Exhibit P. 14, post mortem of the dead boy of Vishal was conducted by Dr. Mahesh Kumar Goyal. According to him rigor mortis was found fully developed and post mortem staining was present. The time since death was found 12 to 14 hours. The cause of death was ante mortem submersion of body i.e. death due to drowning in water (Ante-Mortem). 5. On reappraisal of the prosecution evidence, it is revealed that on 012.2001, at 5.30 in the evening, Vishal, two years old son of (PW. 6) Suresh was not traceable in the premises nearby to the house inspite of the search being made by the ladies of the house, including the mother of the child. The matter was brought in the knowledge of the informant (PW. 1) Jagdish and other male members of the family, who also made a search of the boy but the child was not traceable. Then (PW. 10) Jagdish was taken to the well belonging to Chandra Bhan Singh at a distance of 1/2 km from the house in the jungle in search of the child at the instance of accused Pappu alias Papya. By then it was dark and on focusing the light of the torch in the well the boy was found lying inside the well. Then the boy was brought out with the help of the villagers who gathered there and the boy was taken to the hospital where he was declared dead on account of drowning. 6. The prosecution has mainly relied on the testimony of (PW. 14) Paramjeet Singh, (PW. 9) Sher Singh and (PW. 6) Suresh who allegedly saw the accused taking the child with him. (PW. 14) Paramjeet Singh is nine years old child and has deposed that he was playing with children and Vishal was taken from there by the accused Pappu alias Papya. 14) Paramjeet Singh, (PW. 9) Sher Singh and (PW. 6) Suresh who allegedly saw the accused taking the child with him. (PW. 14) Paramjeet Singh is nine years old child and has deposed that he was playing with children and Vishal was taken from there by the accused Pappu alias Papya. In cross-examination, we find that this witness has admitted that he was brought to the Court by his uncle Suresh (PW. 6) and he stated what his uncle asked him to state. Thus the boy being of tender age appears to have been tutored by (PW. 6) Suresh. According to this child witness when Vishal was taken away by the accused it was already dark. This runs counter to the stand of the prosecution, that the child was found missing first by the ladies and on not being traced the matter was reported to the male folk of the family and by then it was not already dark. Thus, the child witness could not be believed that accused Papya had lifted the child when it was already dark. The statement of Paramjeet has also been rendered unreliable by what has been deposed by (PW. 4) Gyarsi Devi, the grand mother of the child. She was deposed that when the child was not traceable, she went around and she even went to Papaya, who was standing in front of the shop of one Prabhu and asked him about the child. According to this witness, he told to her that he had taken small girl child of his family in his lap and not Vishal. The fact that Gyarsi Devi (PW. 4) approached the accused Papya and inquired from him about Vishal is further corroborated from the testimony of (PW. 10) Jagdish, (PW. 12) Chiman Lal has also deposed that on making search of the child for the second time, he asked the accused Papya as to whose child was in his lap and Papya replied that he had in lap his own girl child. According to this witness, Papya had consumed alcohol. PW. 9 Sher Singh deposed in support of the fact that he had been Papya at a distance of 30-35 who has a child in his lap and was going towards the school of the village but in the cross-examination this witness has explained that he did not recognize as to whose child was with him. PW. 9 Sher Singh deposed in support of the fact that he had been Papya at a distance of 30-35 who has a child in his lap and was going towards the school of the village but in the cross-examination this witness has explained that he did not recognize as to whose child was with him. Likewise, still other witness Banwari Lal (PW. 33) deposed that he had been Papya going towards the school with a child in his lap but in the cross-examination he explained that he did not know as to whose child was in his lap. (PW. 10) Jagdish has admitted that neither he mentioned in report (Exhibit P. 8) that Paramjeet had told him that Vishal was taken by Pappya, nor he mentioned that Banwari Lal (PW. 33) had informed that he had seen accused Papya with a child in his lap. The report (Exhibit P. 8) was lodged at the Police Station at 10.15 p.m. on the same day while the child was missing at 5.30 p.m. The omission of the above material fact in the report (Exhibit P. 8) leads to the inference that in fact by then there existed no basis of alleging complicity of the accused Pappu & Papya in the incident. 7. The other count on which the complicity of appellant is based is the statement of (PW. 10) Jagdish, who deposed that he went along with Papya in search of the child to the well with a torch as it was already dark as the accused Papya had volunteered to make a search of the boy inside the well and according to him before the light of the torch could be properly focused in the well he quipped that some thing was seen lying inside the well and then on properly focusing the light in the well the boy was seen lying in the well. On the basis of this testimony of (PW. 10) Jagdish, the prosecution has tried to infer that it was Papya, who already had the knowledge that child was inside the well. We do not find any substance in the inference drawn by the prosecution as accused Papya himself was assisting (PW. 10) Jagdish and others in searching the boy as a neighbor and from the evidence on record there is nothing to suggest that he had any motive behind the crime. We do not find any substance in the inference drawn by the prosecution as accused Papya himself was assisting (PW. 10) Jagdish and others in searching the boy as a neighbor and from the evidence on record there is nothing to suggest that he had any motive behind the crime. It has come on record that on that day a marriage party had come in the village & there were already 100-150 persons at the houses while the child was found missing. More over, (PW. 13) Sardara Ram has been confronted with his police statement (Exhibit D. 2), wherein he has stated that his nephew Subhash S/o Banwari was also in a drunken state along with Papya and he was also roaming about with him. Though, this witness has denied to have made such statement to the police but it indicates that in the facts and circumstances of the case the hypothesis of committing crime by any body else can not be ruled out. 8. In Swinder Singh vs. State of Punjab, AIR 1992 SC 669 , it has been held by Honble the Apex Court that the suspicion, however grave, can not take the place of legal proof . In Ashish Batham vs. State of M.P., 2002 (2) WLC (SC) Cri 616 = 2002 (7) SCC 317 , the Honble Apex Court observed as under- "Realities or truth apart, the fundamental and basic presumption in the administration of Criminal Law and Justice Delivery System is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicating or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should consistently remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record". 9. Having closely scrutinized the entire material on record, we do not find any evidence worth credence that could conclusively establish the guilt of appellant. On the basis of probability and suspicion, liability to commit crime can not be fastened on the appellant. Learned trial Court appears to have convicted the appellant on surmises and conjectures, therefore, the impugned Judgment deserves to be quashed. 10. For these reasons, we allow the appeal and set aside the impugned Judgment dated 21.04.2003 of the learned Additional Sessions Judge (Fast Track) No. 2, Sikar Camp Neem-ka-thana. We acquit the appellant of the charge under Section 302 IPC. The appellant Pappu @ Papya, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.