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2007 DIGILAW 524 (RAJ)

Yamuna Dutt v. State of Rajasthan

2007-03-09

R.S.CHAUHAN, SHIV KUMAR SHARMA

body2007
Honble CHAUHAN, J.–This appeal arises out of judgment dated 17.9.2002 passed by Additional Sessions Judge (Fast Track) Jhunjhunu, whereby the learned Judge has convicted the appellant for offences under Sections 302, 307 and 342 IPC. For offence under Section 302 IPC the learned Judge has sentenced the appellant to Life imprisonment and imposed a fine of Rs. 2,000/- and to further undergo a sentence of two months of simple imprisonment in default thereof. For offence under Section 307 IPC, the appellant has been sentenced to ten years of rigorous imprisonment and has been imposed with a fine of Rs. 500/- and to further undergo a term of fifteen days of simple imprisonment in default thereof. For offence under Section 342 IPC, the appellant has been sentenced to a simple imprisonment of six months and has been imposed with a fine of Rs. 100/- and to further undergo a simple imprisonment of seven days in default thereof. (2). The brief facts of the case are that on 25.4.1998, one Mr. Shyam Sunder, (PW. 1) lodged a report (Ex. P. 8) wherein he claimed as under: On 25.4.1998, about seven Oclock, his neighbor, Yamuna Dutt s/o Ram Singh came to his farm and told him that he needs to take a jute bag (``bori) from his house to the road. Yamuna Dutt, therefore, needed his help. He accompanied Yamuna Dutt to his house. When I reached his house, Yamuna Dutt locked me in a room and took out a ``lathi (bamboo stick) and pulled out a pistol, which was concealed in his pajama, and asked me as to what is the relationship between his own wife and my tractor driver, Daluram. I told him that ``I didnt have any idea about any relationship between the two. He, thereupon, stuck me thrice with the `lathi on my left foot and below the left shoulder. I pulled the ``lathi out of his hand and threw it away. He pulled the pistol and tried to shoot me. I grappled with him and threw him on the floor. He shot at me, but the bullet missed me. I tried to snatch away the pistol; he bit me on the right side of my chest. The pistol fell from his hand and slipped under the bed in the room. I pushed him and ran to my house. Upon reaching my house, I informed my father. He shot at me, but the bullet missed me. I tried to snatch away the pistol; he bit me on the right side of my chest. The pistol fell from his hand and slipped under the bed in the room. I pushed him and ran to my house. Upon reaching my house, I informed my father. In my house, at that time, Mahendras brother, Indraj was also sitting there. He told us that Yamuna Dutt had also taken his brother Mahendra to his house in the morning. Thereafter my father, Hanumanaram, my uncle Ram Kumar, Indraj and I went to the house of Yamuna Dutt. As we approached the house, we saw that Mahendra was running out of Yamuna Dutts house. We heard a gun shot. We ran. Near his own well, Yamuna Dutt fired again on Mahendra. Mahendra ran and fell near Satya Prakashs house. We went to Mahendra, but he had become unconscious. We took him in Naurang Singhs jeep along with Indraj, Rajesh, Radhuveer, Sunil, Ram Pratap and my father. We took him to the Jhunjhunu hospital. Mahendra was injured on the right side of his chest and was bleeding. Yamuna Dutt has shot at Mahendra with an intention to kill him. (3). On the basis of this report the police registered a formal FIR (Ex. P. 16), FIR No. 47/98, for offences under Sections 323, 307 IPC. However, with the death of Mahendra, the offence under Section 302 IPC was added. The appellant was eventually charged with offences under Sections 302, 307 and 342 IPC. In order to prove its case, the prosecution examined twenty-six witnesses and submitted nineteen documents. The defense, in turn, examined a single witness and submitted ten documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. (4). Mr. S.K. Gupta, the learned counsel for the appellant, has raised a plethora of contentions before us; firstly, there is large number of lacunae in the prosecution story. According to the prosecution. Yamuna Dutt had come to the fields of Shyam Sunder and had taken him to his house. However, the prosecution has not explained as to when did Mahendra reach Yamuna Dutts house. According to Indraj (PW. 14) and according to Shyam Sunder (PW. 1), Yamuna Dutt had taken Mahendra at 5:30 in the morning. According to the prosecution. Yamuna Dutt had come to the fields of Shyam Sunder and had taken him to his house. However, the prosecution has not explained as to when did Mahendra reach Yamuna Dutts house. According to Indraj (PW. 14) and according to Shyam Sunder (PW. 1), Yamuna Dutt had taken Mahendra at 5:30 in the morning. Yet, when Shyam Sunder was at Yamuna Dutts house and was confined there, there is no mention of Mahendra being there. Thus, the prosecution has failed to establish as to how Mahendra reached the house of the appellant. Secondly, according to Shyam Sunder, Indraj, the brother of the deceased, was with him when they went to Yamuna Dutts house at 7:00 Oclock. According to Shyam Sunder, they both saw the alleged crime together. Yet, Indraj in his cross-examination admits that by the time they reached the deceased, the deceased had already fallen on the ground, and was bleeding. Thus, they are not eyewitnesses as they claim to be. Thirdly, according to these witnesses, the appellant chased the deceased. Hence, the deceased was running in front and the appellant was behind him when he allegedly fired the fatal shot. Yet, according to the Post Mortem Report (Ex. P. 11) (henceforth to be referred to as `the PMR, for short), the bullet entered from the front of the chest and not from the back. Moreover, both according to the trial left by the bullet inside the body and according to Dr. J.P. Bugaliya (PW. 8), the Medical Jurist, the assailant shot the deceased from a height as the bullet traveled diagonally downwards. However, the prosecution witnesses do not reveal this position. According to them, the deceased was running and so was the appellant when he allegedly fired at the deceased. Thus, both the assailant and the deceased were at the same level. Hence, the medical evidence contradicts the ocular evidence. Fourthly, the learned Judge has presumed that ``the appellant was standing at the plinth level of his house when he fired the fatal shot. However, the eyewitnesses claim that he was running and chasing the deceased. They further claim that the appellant shot the deceased near his well, which is away from the house. Therefore, the learned Judge has assumed a fact not warranted from the evidence on record. However, the eyewitnesses claim that he was running and chasing the deceased. They further claim that the appellant shot the deceased near his well, which is away from the house. Therefore, the learned Judge has assumed a fact not warranted from the evidence on record. Fifthly, according to the PMR the deceased has sustained five other injuries, which were also ante-mortem in nature. But the prosecution has not explained those injuries. The learned Judge has merely assumed that the appellant must have assaulted the deceased prior to killing him. Thus, the impugned judgment is based on conjectures and surmises. Lastly, the prosecution has not established any motive for the alleged murder. (5). On the other hand, Mr. M.L. Goyal, the learned Public Prosecutor has supported the impugned judgment. Mr. Dharamveer Tholia, the learned counsel for the complainant has also raised a number of contentions before us: firstly, it is a case of direct evidence. Therefore, merely because the prosecution has not proved the motive would not dilute the case of the prosecution. Secondly, a large number of witnesses have been examined as eyewitnesses. Their testimonies support each other. Moreover, their testimony is supported both by the Site Plan (Ex. P. 1) and by the PMR (Ex. P. 11). Hence, the prosecution has succeeded in establishing its case beyond a reasonable doubt. Lastly, the appellant had absconded for almost two and half years. His absconding for such a long time clearly proves his guilt. (6). We have heard the learned counsels for the parties, have considered the impugned judgment and have examined the record. (7). Undoubtedly it is the duty of the prosecution to establish the guilt of the accused beyond any reasonable doubt. The prosecution must discharge this duty by producing convincing and cogent evidence. The distance between ``may be true and ``must be true is a long distance, which the prosecution must successfully traverse. In case the prosecution story is replete with gaps and contradictions, with improbable and inexplicable events, then no matter how strong the suspicion might be, but the conviction cannot be sustained. To convict a person on suspicion is not a legal conviction, but a moral one. Moral conviction is alien to our criminal jurisprudence. The cardinal principle of the Common Law is that every person is presumed to be innocent till proven guilty. Hence, it is for the State-the prosecution to prove his guilt. To convict a person on suspicion is not a legal conviction, but a moral one. Moral conviction is alien to our criminal jurisprudence. The cardinal principle of the Common Law is that every person is presumed to be innocent till proven guilty. Hence, it is for the State-the prosecution to prove his guilt. Merely showing the probability of the occurrence does not discharge such a burden. The prosecution must stand on its own strong wicket. (8). Shyam Sunder (PW. 1) is the complainant in this case. According to him, the appellant had come to him at his farm and asked for help in carrying a mustard jute bag (``bori) from his house to the road. He had gone with the appellant to the appellants house. There the appellant confined him in a room and asked about the relationship between his own wife and the witness driver, Daluram. When the witness told him that he knew nothing about it, the appellant assaulted him first with a ``lathi (bamboo stick) and then fired a shot at him with a pistol, which missed him. He fought with the appellant. The appellant bit him on his chest. He rushed out of the room and made his escape good. He ran to his house, informed about the incident to his father, his uncle and the brother of the deceased Mahendra who was sitting there. All of them walked towards appellants house as Indraj, Mahendras brother, told them that in the morning the appellant had taken Mahendra with him to his house. As soon as they reached near the appellants house, they heard a gun shot. They saw Mahendra running from the appellants house and the appellant was chasing him. Mahendra was running in front and the appellant was behind him. Near the well, the appellant again shot Mahendra, Mahendra was struck and he ran towards the house of Satya Prakash, where he collapsed. The witnesses rushed towards him and took him to the Jhunjhunu hospital in a jeep. He further claims that after the incident, he went to Yamuna Dutts house and stayed there. Yamuna Dutt came back to his house and ran away after five to ten minutes of staying there. According to the said witness, the appellant was not seen for about two and a quarter years. (9). He further claims that after the incident, he went to Yamuna Dutts house and stayed there. Yamuna Dutt came back to his house and ran away after five to ten minutes of staying there. According to the said witness, the appellant was not seen for about two and a quarter years. (9). In his cross-examination he admits the contradictions pointed out in his statement given under Section 161 of the Criminal Prosecution Code (Ex.D.1). He, however, donies the fact that he and the appellants wife had an illicit affair. He also donies that it is he who has killed the deceased. (10). Surprisingly, he does not tell us that Mahendra was present in the appellants house when the appellant took him there. According to Indraj (PW. 14), Mahendras brother, the appellant had taken Mahendra to his house around 5:30 in the morning. Hence, Mahendra should have been there when Shyam Sunder reached the appellants house. But this witness is silent on this point. According to the Site Plan (Ex. P. 1), the appellants house consists of two rooms. However, it is not the case of the prosecution that while the appellant confined Shyam Sunder in one room, he confined Mahendra in the other room. Secondly, according to his witness when he reached home, Indraj informed him that the appellant had also taken his brother Mahendra to his house in the morning. But, according to Ram Kumar (PW. 10) when he was sitting at Shyam Sunders house in the morning, Indraj came and asked them if Mahendra had come their house? This clearly shows that Indraj did not know that the appellant had taken his brother, Mahendra, with him to his house. Otherwise, there was no occasion for Indraj to ask the question from Shyam Sunders family. Thirdly, although Shyam Sunder claims that the appellant had bitten him on the chest while they were grappling with each other, his injury report (Ex. P. 12) does not reveal any injury on his chest. Fourthly and most importantly, this witness claims that the appellant short the deceased while the deceased was running and from the same level. However, the medical evidence contradicts the ocular evidence. For, according to the PMR (Ex. P. 11), the deceased had a gun shot injury on the right side of his chest. The shot had diagonally traveled downwards and had emerged in the back. However, the medical evidence contradicts the ocular evidence. For, according to the PMR (Ex. P. 11), the deceased had a gun shot injury on the right side of his chest. The shot had diagonally traveled downwards and had emerged in the back. According to the Medical Jurist, Dr. J.P. Bugaliya (PW. 8) the deceased was shot at from a height and that too from the front. Of course, in order to explain this glaring contradiction, Shyam Sunder and the other witnesses have claimed that the deceased was turning around to see if the appellant was chasing him. However, while running a person does not turn around fully so as to face the assailant frontally, who is running behind him. At best, the deceased would have turned his head over his shoulder to see if he is being chased. Moreover, if both the assailant and the deceased were running at the same level, the gunshot would not have traveled downward as shown in the PMR. In fact, it would have traveled across the chest in a straight line. Thus, the medical evidence knocks the bottom out of the prosecution story. Lastly, Shyam Sunder claims that after the incident, he went back to the appellants house and waited there. According to him, the appellant came back to his house, stayed there for five to ten minutes and then ran away. This witness does not give any logical reason who he went to the house of the assailant, why he did not apprehend the appellant here or why he let him run away. For these reasons, his testimony does not inspire confidence. (11). The other eyewitnesses, namely Ram Kumar (PW. 10), Ram Pratap (PW. 12) and Indraj (PW. 14) have given a parrot like statement in tune with Shyam Sunders statement. However, none of them have been able to explain the manner in which the fatal injury was caused to the deceased. One of the principles of criminal jurisprudence is that ``men may lie, circumstances do not. Therefore, in the present case, the alleged eyewitnesses may narrate in a parrot like manner, but the medical evidence contradicts them. The medical evidence being scientific evidence, being proved by an independent witness deserves more credence then the eyewitnesses, especially when there is a glaring contradiction between the ocular and the medical evidence. (12). Therefore, in the present case, the alleged eyewitnesses may narrate in a parrot like manner, but the medical evidence contradicts them. The medical evidence being scientific evidence, being proved by an independent witness deserves more credence then the eyewitnesses, especially when there is a glaring contradiction between the ocular and the medical evidence. (12). The learned Judge has merely conjectured in the impugned judgment that the appellant must have shot the deceased from the plinth of his house. This conjecture is not based on the testimony of the alleged eyewitnesses. According to them, the appellant shot at the deceased when he was close to the well. It is not the case of the prosecution that the appellant shot the deceased while the appellant was standing at the top of the well and the deceased was running below the well. Hence, the presumption made by the learned Judge is unwarranted by the evidence on record. Moreover, in order to explain the other injuries on the deceased-injuries not explained by the prosecution-the learned Judge has presumed that the appellant must have hit the deceased with a ``lathi (bamboo stick) while they were in the room. Again this is highly conjectural on the part of the learned Judge. (13). There are other gaps in the prosecution story as well. For example, according to the Seizure Memo of the sandal and the watch of the deceased, both these items were found inside the appellants room. According to the Site Plan (Ex. P. 1) there is blood trail from the room to outside the house. According to D.W.1, Smt. Santosh, the appellants wife, her husband was away on the night of 24.4.1998 and the deceased came to meet her at 3:00 Oclock at night. They were talking to each other when at 5:00 Oclock in the morning Shyam Sunder came to her house. He found Mahendra there with her. There was altercation and fight between the two. During the fight, the deceased sustained certain injuries on his body. During the assault the watch of the deceased fell in the room. During the fight, Shyam Sunder pulled out a gun and shot Mahendra. He then carried the body and dumped it in front of Satya Prakashs house. This defense story may explain the discovery of the watch in the appellants room and the trail of blood from the room to outside the house. During the fight, Shyam Sunder pulled out a gun and shot Mahendra. He then carried the body and dumped it in front of Satya Prakashs house. This defense story may explain the discovery of the watch in the appellants room and the trail of blood from the room to outside the house. Moreover, according to the PMR (Ex. P. 11) the firearm injury on the right side of the chest had blackening around it. Thus, the shot was fired at a close range. However, according to the alleged eyewitness, the deceased was shot at while he was running. The possibility of ``tattooing in that case is remote. The tattooing is possible if the deceased was shot in the room at close range. Furthermore, the distinct possibility exists that the deceased was shot at while he was on the floor and the assailant was standing near him. This would also explain the downward trail of the bullet. This would also explain the trail of blood from the room to the outside. Although the learned Judge has disbelieved the testimony of the DW.1 Smt. Santosh, but her testimony does make the defense probable. (14). Because of the gaping holes in the prosecution story, because of the contradictory evidence on record, because of the improbability of the events, the prosecution has not covered the distance from ``may be true to ``must be true. Hence, the prosecution has not proven the case beyond the shadow of a reasonable doubt. (15). In the case of Datar Singh vs. The State of Punjab (1975) 4 SCC 272 , the Honble Supreme Court held as under: It is often difficult for the courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment of prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. Courts of justice cannot be swayed by sentiment of prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. if the process of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole superstructure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to mere defective evidence cannot avert a failure of the prosecution case. (16). Similar views have been expressed recently by the Apex Court in the case of Narendra Singh and Ano vs. State of M.P. (2004) 10 SCC 699 . (17). Moreover, in the case of Datar Singh (supra) the Apex Court further held that ``The prosecution cannot benefit from the merely suspicious circumstance that the accused did not surrender or was not traceable for nearly a year, or the family members of the accused were not obstructing the prosecution. Conduct of the accused such as hiding after the offence, by itself, does not conclude matters. Thus, merely because the appellant was absconding for over two years, this fact by itself would not help the prosecution in nailing his guilt. (18). In the result this appeal is allowed and the impugned judgment dated 17.9.2002 is quashed and set aside. Consequently, the appellant is acquitted of the charges under Sections 302, 307 and 342 IPC. He shall be released forthwith, if not detained in any other case.