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2015 DIGILAW 976 (RAJ)

Pappu v. State of Rajasthan

2015-05-01

KANWALJIT SINGH AHLUWALIA, NISHA GUPTA

body2015
JUDGMENT : Nisha Gupta, J. This appeal has been preferred against the impugned-judgment dated 04.09.2008 rendered by the Additional Sessions Judge (Fast Track) Baran in Sessions Case No. 112/2006 [State v. Pappu & Anr.] whereby; the accused-appellants have been convicted for offence under section 302 IPC and have been sentenced to life imprisonment and to pay a fine of Rs. 2,000/- each and in default thereof to undergo simple imprisonment for six months. 2. The facts giving rise to this appeal in brief are that Rajendra (PW 7) lodged a written report (Ex.R7) at Police Station Anta, District Baran on 03/10/2006 at 3.10 p.m. with the contention that his father Sobhag S/o Kanhaiyalal was sleeping after having meals at 10.00 p.m. He took his food at Prabhulal's house. Ghanshyam, his father-in-law was also with his father. At that time, Prahlad also came to his house. His father, Ghanshyam and Prahlad were all talking to each other. At that time, Pappu and Ramcharan came there on the motorcycle of Pappu and asked his father to have drinks. They took their father on the motorcycle. Pappu and Ramcharan were drunk. On the same day at about 12.00 in the noon, Jodhraj informed him to visit at ‘bardiya’ (open public place adjacent to village). When he went along with other villagers went there, he saw dead-body of his father. It was asserted by the complainant in the written report (Ex.R7) that Pappu and Ramcharan have killed his father. On this written report (Ex.R7) formal first information report bearing FIR No. 218/2006 (Ex.P.25) came to be lodged at Police Station Anta, District Baran for offence u/Ss. 302, 201 and 34 IPC. After completion of investigation, police filed charge-sheet against the accused-appellants for offence u/Ss. 302, 201 and 34 IPC and they were put to trial, which was entrusted to the Court of Additional Sessions Judge (Fast Track) Baran. 3. After committal, the charges were framed against the accused-appellants for offence u/Ss. 302 and in alternative u/S. 302/34 and Section 201 IPC and same were read over to them but they denied the charges and claimed trial. 4. 3. After committal, the charges were framed against the accused-appellants for offence u/Ss. 302 and in alternative u/S. 302/34 and Section 201 IPC and same were read over to them but they denied the charges and claimed trial. 4. To support the case, the prosecution examined seventeen prosecution-witnesses as PW 1 to PW 17 and exhibited twenty six documents as Ex.R1 to Ex.P.26, whereas the accused-appellants were examined u/S. 313 Cr.P.C. and in defence, exhibited two documents as Ex.D.1 & D.2 and exhibited the statement of Ghan Shyam as Ex.D.3. 5. After conclusion of the trial, the accused-appellants were convicted for the offence u/S. 302 IPC and were sentenced for the said offence in the manner stated hereinabove however, they were acquitted of the charge for offence u/S. 201 IPC. 6. Contention of the learned counsel for the accused-appellants is that they have been implicated falsely. They have been convicted only on the evidence of last seen but - there is no independent evidence. Appellants were the persons of same village and they used to drink with Sobhag. They have not committed any offence and the trial court did not analyse the evidence in true perspective. Hence, the accused-appellants be acquitted. 7. Per contra, the contention of the learned Public Prosecutor is that appellants took the deceased on the pretext of taking drinks together and, thereafter, he was found dead hence, it was for the appellants to prove their innocence and the trial court has rightly convicted the appellants. 8. Heard learned counsel for the accused-appellants, teamed Public Prosecutor for the State and perused the impugned-judgment as well as original records of the case. 9. Rajendra (PW7) son of the deceased has lodged the. written report (Ex.P.7) and before the trial court he also deposed that Pappu and Ramcharan took his father on motorcycle on the assurance that they will give drinks to him and on the next day at about 12.00 in the noon, his dead-body was found but in cross-examination, this witnesses has categorically accepted the fact that they were having no apprehension of the fact that his father had accompanied the appellants as his father used to drink with many persons and he even used to drink after having food and the witness had not comprehended any unnatural behaviour on the part the appellants in taking to his father along with them. 10. 10. Mohan Lal (PW8) another witness stated that Pappu took Sobhag with him. He is brother of the deceased. He stated that Prahlad, Ghanshyam and Sobhag all went with the appellants. In cross-examination also, he stated so that Prahlad, Ghanshyam and Sobhag all went with the appellants. He was declared hostile and his contention is that all three persons went along with the appellants to have the liquor and Pappu and Ramcharan were already in a drunken state. 11. Ghanshyam (PW11) is father-in-law of informant Rajendra (PW7). His contention is that he went to the house of Sobhag at about 10.00 p.m. after having his meals. Prahlad and other villagers were also there. At that time, Pappu and Ramcharan came there and took Sobhag to serve him liquor. His contention is that thereafter, he and Prahlad smoked together and in the morning, it was learnt that one dead-body is lying in ‘bardiya’ and it was found to be of Sobhag. In cross-examination also, he stated that Sobhag used to drink and there was nothing unnatural that appellants have invited him for drinks. 12. Shivraj (PW13) also testified the same fact that appellants took Sobhag to serve him liquor. In cross-examination, he stated that Sobhag used to drink before and after the meals and Sobhag was having good relations with the appellants and he used to roam with the appellants. It was normal is that he used to visit with the appellants and that is why, they did not restrain the deceased to accompany the appellants. Same facts have been narrated by Brahmanand (PW 14) that Sobhag was fond of liquor and appellants took him to offer liquor. In cross- examination also, he stated that it was usual that the deceased went with the appellants to have the liquor. He was declared hostile and did not support the prosecution story. 13. Hence, the prosecution witnesses have clearly stated that it was the regular feature that the deceased used to have drinks with the appellants and on the fateful day, it so happened that appellants took the deceased with them to offer him drinks and prosecution has not brought on record any peculiar fact, which can connect the appellants with the crime. Hence, the prosecution witnesses have clearly stated that it was the regular feature that the deceased used to have drinks with the appellants and on the fateful day, it so happened that appellants took the deceased with them to offer him drinks and prosecution has not brought on record any peculiar fact, which can connect the appellants with the crime. Nothing has been brought on record that with the malafide intention the appellants took the deceased and there is no evidence on record to connect the appellants with the crime of murder. The evidence of last seen is a weak type of evidence. Further more, in the present case, witnesses have stated in clear voice that it was regular feature that the deceased used to roam with the appellants and he was in the habit of having liquor in their company. Nothing unusual has been brought on record and no other fact has been brought on record to corroborate the fact that appellants have committed the murder of the deceased. Reliance has been placed on the judgment of Supreme Court in State of Goa v. Sanjay Thakran and Anr. : (2007) 3 SCC 755 , wherein he Supreme Court in paras 31, 32, 33 & 34 of the said judgment has 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 v. State of A.P. 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 so a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is so 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. v. Satish (SCC para 22) and Ramreddy Rajesh Khanna Reddy v. 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 v. 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. 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. 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. 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". 14. Dr. Rameshwar Prasad Meena (PW6) had conducted the autopsy on the dead-body of Sobhag and as per post-mortem report (Ex.R7), the following injuries were found on the person of Sobhag :- 1. Ligature mark present around the Neck. Knot present at left side of Neck behind and below left ear. Ante-mortem in Nature. Duration in between 24 hours to 48 hours Grievous in nature. 2. Abrasion ½ x ½ inch x deep to skin at posterior side of left elbow. Simple Blunt. Duration 3 days (24 hours to 48 hours) and Ante mortem in nature. 3. Abrasion ? x ? inch x deep to skin on back swallow chest wall. Simple Blunt. Duration (24 hours to 48 hours) and Ante mortem in nature. 2. Abrasion ½ x ½ inch x deep to skin at posterior side of left elbow. Simple Blunt. Duration 3 days (24 hours to 48 hours) and Ante mortem in nature. 3. Abrasion ? x ? inch x deep to skin on back swallow chest wall. Simple Blunt. Duration (24 hours to 48 hours) and Ante mortem in nature. And as per post-mortem report (Ex.P.7), the cause of death has been opined to be Asphaxia due to obstruction of Airway at Neck region. 15. Narayan Singh-PW 15 is investigating officer, who has conducted the usual investigation and only a motorcycle has been recovered at the instance of the appellants, on which they had travelled with deceased. This in itself is not sufficient to connect the appellants with the alleged crime. 16. We are thus of the considered opinion that the present case rests on circumstantial evidence and it is the settled proposition of law that in case of circumstantial evidence, the prosecution must establish "a cogent and reliable-evidence" to lead 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. 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. Our view has been fortified by judgment of Hon'ble the Supreme Court in Sampath Kumar v. Inspector of Police, Krishanagiri : (2012) 4 SCC 124 , wherein the Apex Court has held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. On the materials on record, there may be some suspicion against the accused but as is often said, suspicion, howsoever, strong cannot take the place of proof. 17. The circumstances, which have been brought against the appellants, cannot lead to a conclusion of guilt and even circumstances have not been fully established in the facts and circumstances of the present case. 17. The circumstances, which have been brought against the appellants, cannot lead to a conclusion of guilt and even circumstances have not been fully established in the facts and circumstances of the present case. Our view has been Hanumant Govind Nargundkar v. State of M.P. : AIR 1952 SC 343 and further by another judgment recently passed by Hon'ble the Supreme Court in the case of Vasanta Sampat Dupare v. State of Maharashtra : (2015) 1 SCC 253 , wherein Their Lordships have reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence and 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." 18. In view of above discussion, therefore, we are not persuaded to uphold the conviction of the accused-appellants, which is founded entirely on 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 only the accused-appellants, who could have committed the murder of deceased and none-else. The individual act independently or collectively, which has been is brought on record against the appellants, is not sufficient to connect them with the alleged crime and hence, it would not be safe to record their conviction. Therefore, we grant the benefit of doubt to the appellants. 19. In the result, the appeal is allowed. The individual act independently or collectively, which has been is brought on record against the appellants, is not sufficient to connect them with the alleged crime and hence, it would not be safe to record their conviction. Therefore, we grant the benefit of doubt to the appellants. 19. In the result, the appeal is allowed. The impugned-judgment dated 04/09/2008 rendered by the Additional Sessions Judge (Fast Track) Baran in Sessions Case No. 112/2006 [State v. Pappu & Anr.] is set-aside. The accused-appellant No.1-Pappu S/o Shri Kajod and accused-appellant No. 2 -Ramcharan S/o Shri Devlal are acquitted of the charge for offence u/S. 302 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. 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) 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.