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2015 DIGILAW 818 (RAJ)

Anil Kumar v. State of Rajasthan

2015-04-10

KANWALJIT SINGH AHLUWALIA, NISHA GUPTA

body2015
JUDGMENT : Hon'ble GUPTA, J.—Since all these appeals arise out of the one judgment of the trial court, they are being decided by this common judgment. 2. All these appeals have been preferred against the one impugned-judgment dated 14/03/2007 rendered by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jhalawar in Sessions Case No.77/2006 (State vs. Pappulal & Ors.) whereby, the accused-appellants have been convicted for offence u/S.302 r/w. Section 34 IPC and have been sentenced , as under:- Anil Kumar:- for offence u/S.302 r/w. S.34 IPC:- Life Imprisonment and pay a fine of Rs.1000/- and in default thereof, to further undergo simple imprisonment for six months. Ram Swaroop:- for offence u/S.302 r/w. S.34 IPC:- Life Imprisonment and pay a fine of Rs.1000/- and in default thereof, to further undergo simple imprisonment for six months. Pappu Lal:- for offence u/S.302 r/w. S.34 IPC:- Life Imprisonment and pay a fine of Rs.1000/- and in default thereof, to further undergo simple imprisonment for six months. 3. The facts giving rise to these appeals in brief are that Ganesh Lal (PW.1) submitted a written report (Ex.P.1) to the Police Station Jhalrapatan, District Jhalawar on 09/03/2006 with the contention that he has a house at triangular circle of Surajpole Naka, which he rented out to Pappu Meghwal on monthly rent of Rs.200/-. On 08/03/2006 at 7.30 p.m., he came to the room for putting a “topla” (a bucket used in carrying vegetables) in front of the room then, he saw that his tenant-Pappu Meghwal S/o Kanhaiya Lal Meghwal, R/o Bagdar was having drinks & food together with three other persons namely; Ram Swaroop Meghwal R/o Asnawar, Anil Darji R/o Asnawar and Babulal Meena R/o Badwela and after putting the “topla” there, he went to his home. In the next morning at 8.00 a.m. when he came back to the room for taking the “topla”, he saw some blood stains on the threshold of the room, which was bolted from inside. When he peeped inside the room through window, he saw that Babulal Meena was lying dead in a blood of pool. He raised suspicion that Babulal Meena was killed by his companions - Pappu Meghwal, Ramswaroop Meghwal and Anil Darji. When he peeped inside the room through window, he saw that Babulal Meena was lying dead in a blood of pool. He raised suspicion that Babulal Meena was killed by his companions - Pappu Meghwal, Ramswaroop Meghwal and Anil Darji. On this written report (Ex.P.1), F.I.R. No.81/2006 (Ex.P.2) was registered at Police Station Jhalrapatan, District Jhalawar for offence u/Ss.302 read with Section 34 IPC and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. After completion of investigation, police filed charge-sheet against the appellants for offence u/S.302 read with Section 34 IPC and Section 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and they were put to trial, which was entrusted to the Court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jhalawar. 4. After committal, the charges were framed against the accused-appellants for offence u/S.302 read with Section 34 IPC and read over to them but they denied the charge and claimed trial. However, they were acquitted of the charge for offence u/S.3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 5. To support the case, the prosecution produced twenty six prosecution-witnesses and exhibited fifty four documents, whereas accused-appellants were examined u/S.313 Cr.P.C. 6. After conclusion of trial, the accused-appellants were convicted for offence u/S.302 read with Section 34 IPC and were sentenced in the manner stated hereinabove. 7. Contention of the learned counsel for the accused-appellants is that the entire prosecution story is inconsistent. There is no direct evidence to connect the appellants with the alleged crime and the trial court has convicted them merely on conjectures and surmises. The testimony of Chandmal (PW.11) had wrongly been relied upon by the trial court while basing conviction of the appellants, whereas his statements were recorded with enormous delay of nineteen days of the alleged incident, which raises doubt on the veracity of the witness. Mere recovery of blood stained clothes and “khanjar” (Poniard) cannot connect the appellants with the crime as the recovery is a padding and chain of circumstance is not complete. Hence, the appellants be acquitted of the charge for offence under Section 302 read with Section 34 IPC. 8. Per contra, the contention of the learned Public Prosecutor is that prosecution has established the guilt of the accused-appellants with cogent and reliable evidence. Hence, the appellants be acquitted of the charge for offence under Section 302 read with Section 34 IPC. 8. Per contra, the contention of the learned Public Prosecutor is that prosecution has established the guilt of the accused-appellants with cogent and reliable evidence. The deceased was last seen with the appellants and this fact further corroborates with the evidence of recovery of blood stained articles on the disclosure of the appellants, which are sufficient to connect them with the crime. The conviction and sentence of the accused-appellants for the alleged offence is not liable to be interfered with. 9. Heard learned counsel for the accused-appellants, learned Public Prosecutor for the State and perused the impugned-judgment as well as original records of the case. 10. Ganesh Lal (PW.1) submitted the written report (Ex.P.1) on the basis of which, the FIR (Ex.P.2) was registered with the abovesaid police station alleging commission of offence against the appellants but before the trial court, he had not supported the prosecution story and was declared hostile. This witness in his court statement deposed that he had not seen deceased-Babulal Meena along with Pappulal Meghwal, Ramswaroop Meghwal and Anil Darji at the room of Pappu Lal having drinks & food together. 11. Badri Lal (PW2), who is father of the deceased-Babulal Meena, had not stated any incriminating circumstance against the appellants. 12. Chandmal (PW.11) is the star witness of the prosecution. He deposed before the trial court that about nine months ago, Babulal came to his 'dhaba' (hotel) and asked to accompany him for a party. This witness then went to the room of Pappu Meghwal where; Anil, Ramswaroop and Pappu were already present. Ramswaroop was preparing food and remaining two, were assisting him in preparing food. Thereafter, all had the drinks & food together. Babulal was also there. Pappu after saying good-bye to them, returned back. But in cross-examination, this witness accepted that he disclosed the similar facts to the police after eight days of the alleged incident. Admittedly, his statements were recorded with the enormous delay of nineteen days of the incident, which raises a suspicion on the veracity of deposition of this witness. Furthermore, Ganesh Lal (PW.1) had not disclosed the presence of witness-Chandmal (PW.11) along with Anil, Ramswaroop and Pappu Lal at the room of Pappu Lal in the first information report. 13. Admittedly, his statements were recorded with the enormous delay of nineteen days of the incident, which raises a suspicion on the veracity of deposition of this witness. Furthermore, Ganesh Lal (PW.1) had not disclosed the presence of witness-Chandmal (PW.11) along with Anil, Ramswaroop and Pappu Lal at the room of Pappu Lal in the first information report. 13. Manoj Kumar (PW.4) is son of the informant Ganesh Lal (PW.1) and his deposition before the trial court was that he and his father had seen Pappu Meghwal at the room of Pappu at 7.30 p.m. but had not stated the presence of Chandmal (PW.11) there. Suresh Chand (PW.5) deposed that three persons accompanied by Pappu departed on a motorcycle but he had also not stated the presence of Chandmal (PW.11) there. Cheetar Lal (PW.6) had not supported the prosecution story and was declared hostile. All the witnesses, who were examined to prove the fact that Anil, Ramswaroop and Pappu Lal were present at the room of Pappu Lal, had not deposed regarding the presence of Chandmal (PW.11) on the day of occurrence. Furthermore, the statement of Chandmal (PW.11) was recorded after the enormous delay of nineteen days and it can safely be concluded that Chandmal (PW.11) is not a reliable witness. For the sake of argument, even if it is assumed that all the three persons were present at the room of Pappu Lal but in the absence of any connecting evidence, this fact alone is not sufficient to reach at a conclusion that the appellants-Anil Kumar, Ram Swaroop and Pappu Lal alone and none-else have committed the murder of deceased-Babulal Meena as the prosecution has failed to place on record any incriminating incident against the appellants, which can suggest that any altercation or unpleasant event ever took place between the four. The evidence of Chandmal (PW.11) cannot in any way connect the appellants with the crime. The evidence of last seen is weak type of evidence and needs further corroboration. Reliance has been placed on the judgment of Hon'ble Supreme Court in State of Goa vs. Sanjay Thakran and Anr. : (2007) 3 SCC 755 , wherein their Lordships in paras 31, 32, 33 & 34 of the said judgment held, as under:- “31. . . . . Reliance has been placed on the judgment of Hon'ble Supreme Court in State of Goa vs. Sanjay Thakran and Anr. : (2007) 3 SCC 755 , wherein their Lordships in paras 31, 32, 33 & 34 of the said judgment held, as under:- “31. . . . . It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj vs. State of J & as under : (SCC p.63, para 31) "31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last 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. .." (See also : State of U.P. vs. Satish(SCC para 22) and Ramreddy Rajesh Khanna Reddy vs. State of A.P. (SCC para 27)). 32. In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. 33. In Jaswant Gir vs. State of Punjab, it was observed that (SCC p.441, para 5) "5. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. .." 34. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. .." 34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case”. Hence, in the light of the fact alone that the appellants were last seen together with deceased, it cannot connect the appellants with the crime as the possibility of meeting of other persons with the deceased is not ruled out and this fact alone cannot be considered as an incriminating circumstance against the appellants. 14. The other circumstances, which have been brought on record to connect the appellants with the crime is the recovery of the blood stained “khanjar” (Poniard) on the basis of disclosure Ex.P.47 made by appellant-Ram Swaroop, recovery of blood-stained 'shirt' on the basis of disclosure Ex.P.48 made by appellant-Ramswaroop, recovery of blood-stained 'shirt' on the basis of disclosure Ex.P.49 made by appellant-Pappulal and recovery of blood-stained 'pent' & 'shirt' on the basis of disclosure Ex.P.51 made by appellant-Anil Kumar. Having appreciated the evidence of the witnesses, it is to be noted that disclosure statements furnished by the appellants vide Ex.P.47, Ex.P.48, Ex.P.49 and Ex.P.51 were not attested by any witness what to say of any independent-witness. The disclosure statements viz. Ex.P.47, Ex.P.48, Ex.P.49 and Ex.P.51 were signed by the Deputy Superintendent of Police, Circle Officer, Jhalawar alone on 12/03/2006 at 1.40 p.m., 1.55 p.m., 1.30 p.m. and 2.10 p.m., respectively and have not been recorded in the presence of any independent-witness and counsel for the appellants has rightly contended that there was no occasion for the appellants to suffer the disclosure and nothing has been brought on record, which can suggest that disclosures are made voluntarily or without any duress. It was held by Hon'ble the Supreme Court in Harjit Singh & Ors. It was held by Hon'ble the Supreme Court in Harjit Singh & Ors. vs. State of Punjab : AIR 2002 SC 3040 that disclosure statement should be signed by an independent person and investigating officer should not associate any eye-witness with the recovery memos. In the present case also, no witness what to say of any independent-witness was associated at the time when disclosure statements were made. It is necessary for the prosecution to prove that the disclosure statements were made voluntary without any duress or coercion. To justify voluntary character of disclosure statements, it ought to be recorded in the presence of an independent-witness. It is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act, which says that nothing stated to the police is admissible in evidence. Since Section 27 carves out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that the same was not fabricated; therefore, it is necessary that it should have been made in the presence of an independent-witness. A Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member in Rameshwar and Dinesh @ Pillu vs. State of Rajasthan, D.B. Criminal Appeal No.158/2010 decided on 10/11/2014, has observed, as under:- “Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. vs. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses.” Hence, it would not be safe to record the conviction of the appellants merely on the basis of disclosures made by them and that too in absence of presence of any independent-witness. 15. Further evidence brought against the appellants is the recovery of clothes and 'khanjar' at their instance but in our considered view that alone cannot connect the appellants with the crime as the chain of circumstance is not complete and as per the F.S.L. Report, only human blood of Group “AB” was detected on the clothes of appellants and the deceased but nothing incriminating has been brought on record against the appellants to suggest as to what was the blood group of the deceased and/or of the appellants. Furthermore, appellant-Anil Kumar had suffered injuries and possibility cannot be ruled out that Anil had suffered injuries, his blood was there on his clothes as well as on the clothes of his other companions. 16. Chhitarlal (PW.16) and Vinod (PW.17), witnesses to the recovery have not supported the prosecution story and were declared hostile. Hence, in the absence of any connecting evidence, the chain of circumstance is incomplete and cannot in any way connect the appellants with the alleged crime. Counsel for the appellants has further placed reliance upon the judgment of Hon'ble the Apex Court in Harjit Singh vs. State of Punjab : A.I.R. 2002 SC 3040 in para 49 of which, Hon'ble Apex Court has held, as under:- “49. . . . Counsel for the appellants has further placed reliance upon the judgment of Hon'ble the Apex Court in Harjit Singh vs. State of Punjab : A.I.R. 2002 SC 3040 in para 49 of which, Hon'ble Apex Court has held, as under:- “49. . . . In the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied by the (sic) court to convict the accused by treating it as eye-witnesses account.” Hence, mere presence of blood stains on the clothes or “khanjar” (Poniard) is not sufficient to prove the guilt of the accused-appellants. Reliance in this connection has been placed upon the judgment of Hon'ble Supreme Court in Pohalya Motya Valvi vs. State of Maharashtra : AIR 1979 SC 1949 and reliance has further been placed on the judgment of this Court in Babloo @ Krishna Kumar & Anr. vs. State of Rajasthan : 2004(2) R.C.C. 803 in para 6 of which, this Court has held, as under:- “6. . . . . . . . From the record it is not borne out that the blood samples of the appellants were sent for examination to FSL. In order to prove that blood found on the clothes of the appellants was of the deceased the prosecution had to show that blood group of appellants and the deceased was not the same but the prosecution has failed to establish this fact.” 17. No other circumstances have been brought on record, which can connect the appellants with the crime. 18. On the material available on record, there may be some suspicion against the accused but as is often said, suspicion, howsoever, strong cannot take the place of proof. 19. This Court cannot lead to a conclusion of holding the accused-appellants guilty for the offence on the basis of the circumstances brought against them as the circumstances have not been fully established in the facts and circumstances of the present case. 19. This Court cannot lead to a conclusion of holding the accused-appellants guilty for the offence on the basis of the circumstances brought against them as the circumstances have not been fully established in the facts and circumstances of the present case. Reliance can be placed upon the judgment of Hon’ble Supreme Court in Hanumant Govind Nargundkar vs. State of M.P. : AIR 1952 SC 343 and another judgment recently passed by their Lordships in Vasanta Sampat Dupare vs. State of Maharashtra : (2015) 1 SCC 253 , wherein while reiterating the principles governing the appreciation of evidence in a case based on circumstantial evidence, the Supreme Court held, as under:- “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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.” It can thus be noted that the present case rests on circumstantial evidence and it is the settled proposition of law that to prove the case of a circumstantial evidence, the prosecution must establish “a cogent and reliable evidence” for leading to at a hypothesis accepting guilt of the accused. In other words, the circumstances must be incriminating in character and all circumstances must provide a complete chain and no link of which should be missing. 20. A critical and holistic analysis of the evidence thus clearly reveals that the prosecution has failed to travel the distance between “may be true” and “must be true”. Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent nor convincing for upholding the conviction of the appellants for the alleged crime. 21. Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent nor convincing for upholding the conviction of the appellants for the alleged crime. 21. Hence, in view of above, it can be concluded that the prosecution utterly failed to prove the guilt of the accused-appellants beyond any reasonable doubt that it were they alone and none-else, who committed the alleged crime. The case rests on the circumstantial evidence and circumstances on which prosecution relies must be consistent only with the sole hypothesis of the guilt of the accused. Here in the present case, there are many missing links, which have already been pointed out hereinabove and the court cannot reach to a conclusion that it were the appellants alone, who committed the crime and hence, no sufficient evidence is available on record to connect them with the alleged crime. 22. In view of above discussion, therefore, we are not persuaded to uphold the conviction of the accused-appellants, which is founded entirely on the circumstantial evidence. The chain of circumstances against the accused-appellants has got several missing links. Neither individual circumstances are established against the accused-appellants beyond any reasonable doubt nor do they form a chain of circumstance so complete, as to rule out every reasonable hypothesis that may be compatible with their innocence. The circumstances do not conclusively prove that it were the accused-appellants alone and none-else, who could have committed murder of the deceased-Babulal Meena. Therefore, we grant the benefit of doubt to the appellants. 23. In the result, all these appeals are allowed. The impugned-judgment dated 14/03/2007 rendered by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jhalawar in Sessions Case No.77/2006 (State vs. Pappulal & Ors.) is set-aside. Accused-appellants viz. Anil Kumar S/o Devishankar, Ram Swaroop S/o Nand Kishore and Pappu Lal S/o Kanhaiyalal are acquitted of the charge for offence u/S.302 read with Section 34 IPC. They be released forthwith, if in custody and not required in any other case. However, in case, they are on bail, they need not surrender and their bail bonds shall be discharged subject to compliance of Section 437A Cr.P.C. The records be sent back to the trial court forthwith. They be released forthwith, if in custody and not required in any other case. However, in case, they are on bail, they need not surrender and their bail bonds shall be discharged subject to compliance of Section 437A Cr.P.C. The records be sent back to the trial court forthwith. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, the accused-appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand) each and a surety bond of the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before Hon’ble the Supreme Court.