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2007 DIGILAW 472 (RAJ)

Gajendra v. State of Rajasthan

2007-03-01

R.S.CHAUHAN, SHIV KUMAR SHARMA

body2007
Honble CHAUHAN, J.–The discovery of a dead body, the evidence of last seen, the discovery of an abandoned "jughad" (a truck like vehicle locally manufactured by the villagers) from the background of this appeal. The appellants are challenging the judgment dated 11.2.2002, passed by the Additional Sessions Judge (Fast Track) No.3, Bharatpur, whereby the learned Judge has convicted the appellants for offences under Sections 364, 302 and 201 IPC and has sentenced them as under:- Offence under Section 364 IPC : Life imprisonment along with a fine of Rs. 2000/- and to further undergo a sentence of six months in default thereof. Offence under Section 302 IPC : = Life imprisonment along with a fine of Rs. 2000/- and to further undergo a sentence of six months in default thereof. Offence under Section 201 IPC : = Seven years of rigorous imprisonment along with a fine of Rs. 1000/- and to further undergo a sentence of three months of simple imprisonment in default thereof. (2). The factual matrix of the case is that on 12.10.2000, one Sughad Singh lodged a report at Police Station Kumher (Ex.P.17). In the report he claimed as under:- On 4.10.2000 around 12.00 O clock one Vasudev 2 Vasu S/o Samandar, by caste Jat, R/o Gangrol, presently residing at Hatt Mohalla, Nadbai and Dharmaveer S/o Dauji, by caste Jat, R/o Hatt Mohalla, Nadbai, along with a stranger whom they claimed was from the village of Vasus daughters in-laws, from village Phencherry, Police Station Mathura, whose name was given as Gajendra, these people came to my village Bhatavali and spoke to my son Mohan Singh. They asked him to transport their cow in his Kisan Kunj" (Jughad) to their village Phencherry. They agreed to pay Rs.800/- for this work. But all this was done as a conspiracy to take Mohan Singh away. At that time, Phool Singh, Babulal, Brijendra Singh and Jagdish Mansingh of my village were there. Mohan singh went with these three persons to Nadbai to fetch the cow. Around 5.00 O clock in the evening, Pratap S/o Mohan Singh and Sughad Singh S/o Braja,saw Mohan Singh driving the jughad from Nadbai to Kumher village with these three persons. Since Mohan Singh did not return till 6.10.2000, I went to the houses of these three persons in Nadbai. But I could not find them there. Around 5.00 O clock in the evening, Pratap S/o Mohan Singh and Sughad Singh S/o Braja,saw Mohan Singh driving the jughad from Nadbai to Kumher village with these three persons. Since Mohan Singh did not return till 6.10.2000, I went to the houses of these three persons in Nadbai. But I could not find them there. Their family members told us that these bad people (Badmash) couldnt be trusted. I got worried. I could not locate him anywhere. I, thus, returned to my village on 10.10.2000. On 11.10.2000, a meeting of the influential people of the villages, such as Brajendra Singh, Lakshman Singh, Prakash Chandra, Bhagwati, Shankar Singh, Vijay Singh, Phool Singh, from village Mahavali, and Badan Singh, Fateh Singh Sarpanch, Naval Singh, Basanti, Nathi, Nawab singh, Hukum Singh, from village Gangroli, was called at the house of Babulal, member of Nadbai panchayat. Man Singh, member of the panchayat promised to produce these three persons on 12.10.2000. But on 12.10.2000, Man Singh, the member, informed us that Ghamandi, the seller of animal fodder in Nadbai, is hiding these persons. Therefore, I am convinced that these three persons have killed Mohan Singh and have robbed him of the "kisan kunj". The Kisan Kunj was a new one. The Panchas told me to begin the legal proceeding, therefore I have come today to report without any delay. (3). On the basis of this report, the police chalked out a formal FIR, FIR No. 477/2000 (Ex.P.18) for offences 379, 420, 364, and 365 IPC. (4). Meanwhile, on 5.10.2000, at Police Station Nahroli, Dist. Mathura, another FIR was registered for offence under Section 302 IPC as a dead body of a stranger was discovered in the field belonging to Dalchand (P.W.7). The dead body had a plastic rope tired around its neck. Thus, the Police Station Nahroli was informed about the discovery of the said body. The police recovered the said body and had the autopsy done. Subsequently, the investigation record of the FIR registered at Police Station Nahroli was transferred to the Police Station Kumher. Eventually, the police submitted a charge sheet against the appellants for offences under Sections 364, 379, 302 and 201 IPC. Since Vasu had absconded, the proceedings under Section 299 of the Criminal Procedure Code (henceforth to be referred to as `the Code, for short) were started against him. Eventually, the police submitted a charge sheet against the appellants for offences under Sections 364, 379, 302 and 201 IPC. Since Vasu had absconded, the proceedings under Section 299 of the Criminal Procedure Code (henceforth to be referred to as `the Code, for short) were started against him. Meanwhile, charges for the aforementioned offences were framed against the appellants. (5). In order to prove its case, the prosecution examined twenty- two witnesses and produced forty documents. The defense examined single witness and produced eight documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, this appeal before this Court. (6). Since during the pendency of this appeal, the appellant No.2, Dharamveer has absconded, the present judgment is confined only to the appellant No.1, Gajendra. (7). Mr. Arvind K. Gupta, the learned counsel for the appellant, has argued that the entire case is based on circumstantial evidence. Relying on the principle governing case of circumstantial evidence, the learned counsel has argued that there are missing links in the circumstantial evidence led by the prosecution. Although there is some evidence to prove that the deceased was last seen with the appellant in Rajasthan, but there is no evidence to prove his being with the appellant in U.P., where his body was eventually discovered. Moreover, the motive for their alleged crime is conspicuously missing. Since the "jughad" was recovered almost after a month in a abandoned condition, the sale of the "jughad", as alleged by the prosecution, could not from the basis of the alleged crime. Absence of motive in a case of circumstantial evidence leaves a large chink in the prosecution story. Therefore, all the links do not point unerringly to the guilt of the accused persons. (8). On the other hand, Mr. Karanpal Singh, the counsel for the complainant, and Mr. M.L. Goyal the learned Public Prosecutor have argued that the chain of circumstantial evidence is complete. The said chain unerringly points to the guilt of the appellants. Thus, they have supported the impugned judgment. (9). We have heard the learned counsels for the parties and perused the impugned judgment and have examined the record. (10). Admittedly the case is based on circumstantial evidence. The said chain unerringly points to the guilt of the appellants. Thus, they have supported the impugned judgment. (9). We have heard the learned counsels for the parties and perused the impugned judgment and have examined the record. (10). Admittedly the case is based on circumstantial evidence. In the case of Hanumant Govind Nargundkar vs. State of M.P. ( AIR 1952 SC 343 ) the Honble Supreme Court had annunciated the principle with regard to circumstantial evidence in the following words: It is well to remember that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. (11). The courts have consistently followed the principle spelt out above. Hence, the same principle needs to be applied in the present case. (12). Through the testimonies of Sugadh Singh (P.W.9), Vijendra Singh (P.W.11) and Phool Singh (P.W.15), the prosecution has proven the fact of last seen of the deceased with the appellant at his own house. According to Sugadh Singh three persons had come to his house and had spoken to his son Mohan Singh, for the purpose of renting out his "jughad" in order to carry their cow to the village Phencherry in U.P. According to this witness, Mohan Singh was seen along with these three accused persons by his two brother-in-laws at Kumher. Both the brother-in-laws had asked him to stay with them for the night, but he had left Kumher after promising them that he should be back in few hours. But, he never returned. This witness could not be shattered in the cross- examination. (13). The other two above named witnesses have also corroborated the testimony of Sughad Singh. Both the brother-in-laws had asked him to stay with them for the night, but he had left Kumher after promising them that he should be back in few hours. But, he never returned. This witness could not be shattered in the cross- examination. (13). The other two above named witnesses have also corroborated the testimony of Sughad Singh. Thus, these three witnesses have established the fact that the appellant did come to Sughad Singhs house and spoke to his son, Mohan Singh. They also settled Rs. 800/- for the purpose of hiring his "jughad" for transporting the cattle to Phencherry. Mohan Singh, the deceased, left his house with the appellants. (14). The prosecution has further produced Hukum Singh (P.W.10) to prove the fact that even up to Nadbai, the deceased was last seen with the appellants. Pratap Singh (P.W.12), Sugadh Singh S/o Virja (P.W.13), Ramveer (P.W.16) and Vijay Singh (P.W.17) have also been produced to prove the fact that the deceased was seen with the appellants till Kumher village in Rajasthan. (15). However, the body of the deceased was not discovered in Rajasthan. According to Dalchand (P.W.7), his two daughters had gone to his farm where they discovered the dead body of a stranger lying in their fields. They came back home and informed him about it. It is he who had informed the police at Police Station Nahroli; upon his information, the police had recovered the body and registered a FIR. Dalchand is a resident of village Bajana, Police Station Nahroli, District Mathura in Uttar Pradesh. Thus, the body was discovered in Uttar Pradesh. Although the place of discovery of the body is close to the Rajasthan-U.P. border, but nonetheless it is far from the place where the deceased was last seen with the appellants in Kumher. Moreover, the deceased was last seen with the appellants in Kumher on 4.10.2000, whereas the body of the deceased was discovered on 6.10.2000 in village Bajana in U.P. Hence, there is a difference both of distance and of time in the evidence of last seen and of discovery. Therefore, the evidence of last seen is weak evidence. (16). Moreover, the deceased was last seen with the appellants in Kumher on 4.10.2000, whereas the body of the deceased was discovered on 6.10.2000 in village Bajana in U.P. Hence, there is a difference both of distance and of time in the evidence of last seen and of discovery. Therefore, the evidence of last seen is weak evidence. (16). In the case of State of U.P. vs. Satish (2005) 3 SCC 114 , the Honble Supreme Court has explained the principle of "last seen" evidence as under: The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. (17). Applying the above principle to the present case, it is obvious that the prosecution has not produced an iota of evidence to prove that the deceased was last seen with the appellants in U.P. There is gap in both the place and time of the last seen. Therefore, the possibility of someone else stepping in between the time of last seen and the time of discovery of the body, between the place of last seen and place of discovery of the body, cannot be ruled out. Hence, the evidence of last seen is too weak a piece of evidence to from the basis of conviction of the appellants. In the case of Arjun Marik and Ors. vs. State of Bihar (1994 Supp. (2) SCC 372), the Honble Supreme Court has held, "The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." Likewise, in the present case the evidence of "last seen" cannot from the basis of the conviction. (18). (18). In case of direct evidence the failure to prove motive of the crime is not fatal to the prosecution. But, in a case based on circumstantial evidence, since motive forms one of the strongest links in the chain of circumstances against the accused, its absence will certainly weaken if not damage the case of the prosecution. Hence, the prosecution should establish a motive for the alleged crime in such a case. However, in the present case, the motive of the alleged crime is conspicuously missing. According to the prosecution the motive was to rob the deceased of his newly constructed "jughad" and to sell it off. However, the fact remains that even after the arrest of the accused persons, the "jughad" was not discovered upon their statement. Instead, it was discovered in Udhyog Nagar in an abandoned position. And that too, it was discovered almost a month after the alleged crime. Thus, apparently, the appellants did not sell off the "jughad". The learned counsel for the complainant and the learned Public Prosecutor have not been able to tell us about the possible motive for the alleged murder of Mohan Singh. In the absence of motive, there is a gaping hole in the prosecution story. The possibility that others killed the deceased, the possibility that others took away the "jughad" cannot be ruled out. Thus, the circumstances established by the prosecution do not from a complete chain unerringly pointing to their guilt. (19). For these reasons, we allow the appeal of deceased Gajendra and set aside the impugned judgment dated February 11, 2002 of learned Additional Sessions Judge (Fast Track) No.3, Bharatpur to the extent of appellant Gajendra only. We acquit him of the charges under Sections 302, 201 and 364 IPC. The appellant Gajendra, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.