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2015 DIGILAW 1778 (RAJ)

State of Rajasthan v. Jaswant

2015-10-12

GOPAL KRISHAN VYAS, VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This criminal appeal has been filed by the State against the judgment dated 1.9.1995 passed by Additional Sessions Judge, Raisingh Nagar (hereinafter referred to as 'the trial court'), in Sessions Case No.98/1994 whereby the learned trial court has acquitted the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. 2. Brief facts of the case are that on the basis of statement of PW-5 Raji Ram (Exhibit P/9), the police registered FIR No.106/1994 at Police Station, Muklawa, District Sri Ganganagar for the offences punishable under Sections 302 and 394 I.P.C. against unknown persons. In the statement of Raji Ram (PW-5), it is stated that he is having four sons. Bala Ram is eldest son whereas Shankar Lal, Jagdish and Jaswant are younger sons. Bala Ram is residing separately whereas the other three sons are residing with him. He is running a flour mill near canal and yesterday upto evening, he along with his servant Nirmal Singh had operated the said flour mill. He further stated that at about 12 - 12:30 AM, his wife and son Jaswant came to the flour mill and his wife gave some medicine and cloths to sleep and she stayed there with him on the flour mill whereas his son Jaswant returned to his house. His mother Aasi sleeps in outer room and his other two sons Shankar Lal and Jagdish and their wives sleep in the house. In the night at about 1:45 AM, his son Jaswant came at the flour mill and informed him that when he and his grand-mother were sleeping in the room then 3-4 persons came there and put a gun or lathi on his chest and thereafter assaulted his grandmother and ran away with some articles after killing her. On receiving the said information, he reached his house along with his son Jaswant and found his mother lying there having an injury on her face. Her gold earring, neckless and silver kadlas of her legs were missing. When he reached the house, Sarpanch Hanuman and many other persons also gathered there. 3. On receiving the said information, he reached his house along with his son Jaswant and found his mother lying there having an injury on her face. Her gold earring, neckless and silver kadlas of her legs were missing. When he reached the house, Sarpanch Hanuman and many other persons also gathered there. 3. After investigation, the police filed charge sheet against the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. On committal, the trial court framed charges against the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. The prosecution got examined as many as 16 witnesses and also exhibited several documents and articles. The statement of accused-respondent was recorded under Section 313 Cr.P.C. wherein he denied that he has committed any offence and also submitted that he has falsely been implicated by brothers of his father. It is also stated that as he has refused to marry with daughter of Chunni Lal, he has falsely been implicated in this case. 4. The learned trial court, after hearing Additional Public Prosecutor and learned counsel for the appellant and after pondering over the evidence produced by the parties has acquitted the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. vide impugned judgment. 5. Assailing the impugned judgment, learned Public Prosecutor has submitted that though the prosecution has not produced any eye witness to prove the guilt of the accused-respondent, but has produced circumstantial evidence to prove the charge against the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. It is argued that the prosecution has proved beyond reasonable doubt that the ornaments belonging to the deceased and blood stained cloths of accused-respondent were recovered at his instance but the learned trial court disbelieved the said recovery without giving any cogent reason. It is also submitted that the prosecution has proved the recovery of piece of brick from the accused-respondent by which the accused-respondent had assaulted his grand-mother. It is argued that all the circumstantial evidence produced by the prosecution before the trial court sufficiently connected the accused-respondent with the commission of crime, however, the learned trial court has erred in disbelieving the same. 6. On the strength of the above arguments, learned Public Prosecutor has prayed that this appeal may be allowed. It is argued that all the circumstantial evidence produced by the prosecution before the trial court sufficiently connected the accused-respondent with the commission of crime, however, the learned trial court has erred in disbelieving the same. 6. On the strength of the above arguments, learned Public Prosecutor has prayed that this appeal may be allowed. The judgment under appeal dated 1.9.1995 may be set aside and the accused respondent may be convicted for the offences punishable under Sections 302 and 394 I.P.C. 7. Per contra, learned counsel appearing for the accused-respondent has argued that the prosecution has failed to produce cogent and reliable evidence to connect the accused-respondent with the commission of crime and, therefore, the learned trial court has not committed any illegality in acquitting the accused-respondent for the offences punishable under Sections 302 and 394 I.P.C. It is further argued that the prosecution has produced only circumstantial evidence to connect the accused-respondent with commission of crime, however, the said circumstantial evidence was not sufficient to connect the accused-respondent with the commission of the offences punishable under Sections 302 and 394 I.P.C. 8. Learned counsel for the accused-respondent has submitted that the prosecution has failed to prove that the ornaments allegedly recovered at the instance of the accused-respondent are belonging to the deceased and, therefore, the learned trial court has rightly held that when the prosecution has failed to prove that the recovered ornaments are belonging to the deceased, the accused-respondent cannot be connected with commission of murder of the deceased. It is also argued that the group of blood found on the piece of brick was not detected, therefore, in no manner, the accused-respondent can be connected with the commission of crime. Learned counsel for the accused-respondent has further argued that in the cases, where the case of prosecution rests solely on circumstantial evidence, the prosecution has to prove the guilt of the accused beyond reasonable doubt by producing reliable evidence. However, in the present case, the prosecution has failed to produce reliable and cogent evidence, therefore, the trial court has not committed any illegality in acquitting the accused-respondent from the offences punishable under Sections 302 and 394 I.P.C. 9. On the strength of above arguments, learned counsel for the accused-respondent has prayed that the instant appeal may be dismissed. 10. We have considered the rival submissions and critically examined the record. 11. On the strength of above arguments, learned counsel for the accused-respondent has prayed that the instant appeal may be dismissed. 10. We have considered the rival submissions and critically examined the record. 11. The fact of unnatural death of deceased Aasi is proved by the post mortem report Exhibit P/31 and the statement of PW-15 Dr. Subhash Gupta, however, admittedly there is no eye witness in the present case and the case of the prosecution is based on circumstantial evidence only. 12. The principles of law governing a case of prosecution resting on circumstantial evidence are well known and well settled. For the present purpose, suffice it would be to refer to the principles expounded by the Hon'ble Supreme Court in Pawan v. State of Uttaranchal, reported in (2009) 15 SCC 259 as under: "14. When a case rests on circumstantial evidence, such evidence must satisfy the of quoted tests viz.: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards [the] guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human [probabilities] the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 13. Thus, the questions to be examined in this case are as to whether the prosecution has been able to cogently and firmly establish the circumstances wherefrom the inference only of the guilt of the accused could be drawn; and the circumstances taken together form a complete chain leading to the inescapable conclusion that within all human probabilities, the crime was committed by the accused and none else; and the circumstances lead to no other hypothesis but the guilt of the accused. 14. The prosecution has relied upon the following evidence to connect the accused-respondent with the murder of deceased Aasi:- (i) Exhibit P/3 - Blood stained shirt of the accused-respondent. (ii) Exhibit P/4 - One silver ornament. (iii) Exhibit P/5 - A blood stained piece of brick. 14. The prosecution has relied upon the following evidence to connect the accused-respondent with the murder of deceased Aasi:- (i) Exhibit P/3 - Blood stained shirt of the accused-respondent. (ii) Exhibit P/4 - One silver ornament. (iii) Exhibit P/5 - A blood stained piece of brick. (iv) Exhibit P/6 - Three ornaments of gold. 15. The blood stained shirt of the accused respondent was seized vide Exhibit P/3 and sent for chemical examination, however, group of the blood found on the shirt was not detected. Similarly no blood group was detected from the blood stained brick seized vide Exhibit P/5. So far as the recoveries of ornaments vide Exhibit P/4 and P/6 at the instance of accused-respondent are concerned, it is noticed that the said ornaments were not produced before the trial court during the course of trial and there is no evidence available on record to suggest that the said ornaments had been identified by any witness to verify that the same belong to deceased Aasi. 16. It is noticed that two witnesses of recovery of blood stained shirt, silver and gold ornaments and piece of blood stained brick vide Exhibit P/3 to P/6 have been examined as prosecution witnesses as PW-10 Hanuman and PW-3 Chunni Lal respectively. PW-10 Hanuman has not supported the prosecution story and has stated that the accused-respondent has not produced anything as mentioned in Exhibit P/3 to P/6 in his presence. He is declared hostile and during his cross-examination, he specifically stated that the accused-respondent was arrested on the very same day when the deceased Aasi was murdered i.e. on 22.9.1994 and not on 23.9.1994. PW-3 Chunni Ram, in his statement, though verified the recoveries made at the instance of the accused-respondent vide Exhibit P/3 to P/6, but failed to identify the said articles before the trial court because the same were not produced in the Court by the prosecution. The trial court has observed that the recovery of the said articles, at the instance of the accused-respondent, is also doubtful because as per the statement of PW-5 Raji Ram and PW-20 Hanuman, the accused-respondent was arrested on 22.9.1994 at about 5:00 PM and recovery of articles mentioned in Exhibit P/3 to P/6 was also effected on the same day, however, PW-14 Nathmal, SHO in his statement, has submitted that the accused-respondent was arrested on 23.9.1994 and the recovery was also effected on 23.9.1994. It is observed by learned trial court that PW 14 Nathmal in his statement has stated that the ornaments of the deceased were identified by Bhagirath son of the deceased, however, neither the statement of Bhagirath was recorded by the police under Section 161 Cr.P.C. nor he was produced as witness by the prosecution before the trial court. Looking to the said circumstances, the learned trial court has observed that the prosecution has failed to produce any evidence in support of its claim that the ornaments recovered at the instance of the accused-respondent were of the deceased. Learned trial court has also taken into consideration the statement of PW-6 Banwari Lal, who as per the prosecution had weighed the recovered ornaments. PW-6 Banwari Lal, in his court statement, has specifically said that he did not weigh the ornaments which were produced by prosecution as six articles. 17. After taking into consideration the overall facts and circumstances of the case, we are of the opinion that the prosecution has failed to prove that the crime was committed by the accused and none else. The circumstantial evidence produced by the prosecution was not complete and it cannot be concluded that with all human probabilities, the crime was committed by the accused-respondent. 18. In view of above discussions, we find that the impugned judgment dated 1.9.1995 is not liable to be interfered. Hence, this appeal filed by the State is having no merit, the same is, dismissed. Appeal dismissed.