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2015 DIGILAW 1767 (RAJ)

State of Rajasthan v. Sohan Singh

2015-10-08

GOPAL KRISHAN VYAS, VIJAY BISHNOI

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JUDGMENT : Gopal Krishan Vyas, J. The instant cr. leave to appeal has been filed by the State of Rajasthan under Section 378(iii) and (i) Cr.P.C. against the judgment dated 30.6.2014 passed the learned Addl. Sessions Judge NO.1, Udaipur in Sessions Case NO.15/2011 by which the learned trial court acquitted the respondent from the charge levelled against him under Section 395, 397 and 302 IPC. 2. Brief facts of the case are that upon statement (Ex.P/10) of PW-2 Kishan Singh S/o Bhabhut Singh dated 3.9.2010, FIR No.271 was registered at Police Station Dabok in which the complainant alleged that a missing report of my uncle Sh.Bheru Singh was registered on 1.8.2010 at Police Station Dabok in which it is stated that uncle of complainant Bheru Singh S/o Bagh Singh by caste Rajput aged about 70 years, resident of Napania is missing from my house from last 20-25 days. 3. After registration of the said missing report on 3.9.2010 the complainant received information that a dead body is recovered near Sobhji Ka Kheda Road where plots have been carved out. The complainant reached at site at 10.00 am along with Dault Singh where the police personnels from Police Station Dabok were also present. The police officials shown dead body lying in the drain to the complainant, which is identified by him on the basis of cloths and shoes. The body was decomposed and bones were visible. The skull has been fractured and two blood stained stones were also lying nearby the body, therefore, FIR was registered against some unknown person for committing murder of the complainant. After registration of the FIR the SHO, Police Station, Dabok conducted thorough investigation and charge-sheet dated 1.9.2004 for offence under Sections 302, 394 and 397 IPC was filed. During investigation, the Investigating Officer recorded statement of the witnesses and carried out the investigation and collected the evidence and as per the prosecution case Sohan Singh (respondent herein) confessed his offence during investigation and as per his information Rs.90,000/- and mobile phone of deceased were recovered from the house of respondent Sohan Singh. The recovered Rs.90,000/- and mobile phone were taken in possession after preparing seizure memos and two earrings and cloths were also recovered from the place of occurrence. The earrings were identified by the complainant PW-2 Kishan Singh in presence of Tehsildar, Vallabhnagar. All the articles were sent to the FSL for examination. The recovered Rs.90,000/- and mobile phone were taken in possession after preparing seizure memos and two earrings and cloths were also recovered from the place of occurrence. The earrings were identified by the complainant PW-2 Kishan Singh in presence of Tehsildar, Vallabhnagar. All the articles were sent to the FSL for examination. After completion of investigation, the charge-sheet was filed against the respondent in the court of Addl. Chief Judicial Magistrate, Mavli from where the case was committed to the court of District & Sessions Judge, Udaipur, but later on transferred to the court of Addl. Sessions Judge (Fast Track) No.1, Udaipuir where trial took place. 4. After framing charge, the learned trial court granted an opportunity to the prosecution to lead evidence and in support of prosecution case, statements of 17 prosecution witnesses were recorded and 50 documents were exhibited and after recording statement of prosecution witnesses the statement of the respondent were recorded under Section 313 Cr.P.C. Thereafter, an opportunity was granted to the respondent to lead his evidence in defence, but no evidence was produced by the respondent Sohan Singh and ultimately after hearing learned counsel for the parties, the learned trial court acquitted the respondent on the ground that prosecution has utterly failed to being home the guilt against the accused respondent person beyond shadow of doubt through cogent and convincing evidence vide judgment dated 30.6.2014. 5. Learned Public Prosecutor vehemently argued that although there is no direct evidence on record but circumstantial evidence of last seen and recovery of Rs.90,000/- and mobile phone of the deceased was proved by the prosecution but the learned trial court while giving finding that prosecution has failed to prove its case beyond reasonable doubt acquitted the respondent from the charge erroneously, therefore, it is a fit case for grant leave to appeal against the judgment impugned. 6. Learned Public Prosecutor submits that recovery of Rs.90,000/- and mobile phone is recovered in the presence of witnesses and investigating officer, therefore, the learned trial court ought to have appreciate the evidence in right perspective and has failed to appreciate the evidence in right perspective, therefore, the impugned judgment deserves to be quashed. In the last it is submitted that the medical evidence is also corroborating, therefore, leave to appeal may kindly be granted. 7. In the last it is submitted that the medical evidence is also corroborating, therefore, leave to appeal may kindly be granted. 7. Per contra learned counsel appearing for the respondent submits that the appellant was arrested on the basis of evidence of last seen and recovery of Rs.90,000/- and mobile phone of the deceased, but prosecution has completely failed to prove the evidence of last seen and recovery of articles. More so, in the FIR no such allegation was levelled or fact was disclosed that deceased was having Rs.90,000/- with him or was having mobile with him, therefore, the learned trial court after assessing the entire evidence rightly acquitted the respondent from the charge levelled against him. Therefore, no case is made out to grant leave to appeal. 8. After hearing the learned counsel for the parties, we have perused the finding carefully and gone through the evidence on record. Admittedly, the prosecution case is based upon the circumstantial evidence and no direct evidence is on record. The deceased was missing from 30-35 days back from 31.8.2010 when complaint was filed first time by the complainant PW-2 Kishan Singh at the police station, Dabok after giving missing report the complainant got information about whereabouts of the deceased and dead body was recovered on 3.9.2010 in decomposed condition but identified by the complainant from cloths available on body, it emerges from the evidence that no suspicion was raised against the respondent by the complainant or anyone else in the report. As per facts, in absence of eye witness it was blind murder, therefore, the learned trial court assessed the circumstantial evidence which is produced by the prosecution in the trial before the court. It is settled principle of law that if case is based upon circumstantial evidence then the circumstances from which a inference of guilt is sought, must be cogent and firmly established. Further, the circumstances should be definite tendency unerringly points out towards the guilt of the accused and further the circumstances taken collectively should form a chain, so complete, that whatever aspect from the conclusion within human probabilities, the crime was committed by the accused and none else 9. We have examined the entire evidence of this case on the basis of above principle. We have examined the entire evidence of this case on the basis of above principle. Admittedly, to prove the fact of last seen the prosecution has relied upon the witness PW -7 Parwat Singh, PW-8 Bhirun Singh, PW-9 Shambhu Singh and PW-10 Smt. Pushpa Kanwar. As per prosecution all these witnesses stated in their statements recorded under Section 161 Cr.P.C. that present respondent Sohan Lal was seen prior to recovery of the dead body but these witnesses turned hostile when their statements were recorded in the court. Meaning thereby, the prosecution has miserably failed to establish the evidence of last seen. 10. With regard to recovery of Rs.90,000/- and mobile phone, the learned trial court observed that there was no whisper in the FIR with regard to the fact that deceased was having Rs.90,000/- when he left the house, so also, there was no disclosure of the fact that deceased was 70 years of age was having mobile with him but in the investigation they improved their statements because as per finding of the learned trial court, the recovery of mobile phone effected from the respondent does not connect the respondent with the crime because no evidence was brought on record by the prosecution that mobile phone was owned by the deceased, even the telephone/sim card has not been proved as that of deceased. Learned trial court observed in the finding that PW-6 Mangu @ Bhairu Singh admitted that phone was in his name, therefore, the evidence of confession and recovery was not found to be established by the learned trial court. 11. In our opinion, no error has been committed by the learned trial court so as to acquit the respondent from the charge levelled against him because prosecution has failed to establish the chain of circumstances against the respondent so as to hold him guilty for alleged offence. In view of above, it is not a fit case to grant leave to appeal. Hence, this cr. leave to appeal is hereby rejected. Level to appeal dismissed.