Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 898 (RAJ)

State of Rajasthan v. Tar Singh

2016-06-23

VIJAY BISHNOI

body2016
JUDGMENT : Vijay Bishnoi, J. This criminal appeal has been preferred by the appellant-State against the judgment dated 04.04.1996 passed by District and Sessions Judge, Jaisalmer (hereinafter referred to as 'the trial court') in Criminal Case No.38/1993, whereby the trial court has acquitted the accused respondents for the offences punishable under Sections 304-B, 202 and 201 IPC. 2. Brief facts of the case are that on 28.03.1993, PW-5 Pahad Singh S/o Khangar Singh submitted a typed report to the Superintendent of Police, Jaisalmer, which was referred to the SHO, Police Station, Jhinjhniyali, District Jaisalmer and on the basis of the same, FIR No.13/1993 was registered against the accused persons for the offences punishable under Sections 304-B, 498-A IPC. After thorough investigation, the police had filed charge-sheet against the accused respondent No.1-Tar Singh for the offences punishable under Sections 304-B and 498-A IPC, however, the trial court had framed charges against accused respondent No.1- Tar Singh and respondent No.2-Bher Singh for the offences punishable under Sections 304-B, 202 and 201 IPC and framed charges for the offences punishable under Sections 202 IPC against remaining accused respondents. 3. It is notied that PW-5 Pahad Singh in his complaint has stated that his sister-Leela was married to accused respondent No.1-Tar Singh S/o Bher Singh on Akhateej of Sanwat years 2048 and the daughter of uncle of respondent No.1-Tar Singh was engaged with him. It is further stated that the accused persons Tar Singh, Bher Singh and mother-in-law of his sister-Leela were annoyed due to less dowry, given to them. It is alleged that in-laws of his sister were regularly harassing her for less dowry and also threatened to break the engagement of him with the cousin sister of accused Tar Singh. He has further stated that before some time the in-laws of her sister sent her to his father's house and, thereafter, came to take back her and assureed that they would not harass her. It is alleged that on 16.02.1993, Bher Singh, his wife, Renwat Singh, Kishan Singh, Renwat Singh's wife, Aamb Singh's wife and accused Tar Singh killed his sister by strangulating her. It is stated in the complaint that Ex-Sarpanch Gemar Singh of village Lakha advised the in-laws of his sister to cremate her bead body after the murder. It is alleged that on 16.02.1993, Bher Singh, his wife, Renwat Singh, Kishan Singh, Renwat Singh's wife, Aamb Singh's wife and accused Tar Singh killed his sister by strangulating her. It is stated in the complaint that Ex-Sarpanch Gemar Singh of village Lakha advised the in-laws of his sister to cremate her bead body after the murder. It is further stated in the complainant that after knowing the fact about death of his sister, he sent his uncle Arjun Singh to village Lakha to enquire about the same, where the Ex-Sarpanch Gemar Singh told Arjun Singh that inlaws of his sister-Leela killed her. It is further mentioned in the complaint that the accused persons killed his sister-Leela for the dowry by strangulating her. 4. During the course of trial the prosecution produced as many as eleven witnesses and also got eight documents exhibited. The statements of the accused persons were recorded under Section 313 Cr.P.C. and two defence witnesses were also examined and certain documents were also exhibited in defence. The trial court after taking into consideration the prosecution evidence and the defence evidence has acquitted the accused respondents for the offences punishable under Sections 304-B, 202 an 201 IPC vide impugned judgment. Hence, this appeal. 5. Learned Public prosecutor has submitted that the prosecution has proved the guilt of the accused persons by producing cogent and reliable evidence, however, the trial court has grossly erred in acquitting the accused respondents. It is argued that from the statements of PW-5 Pahad Singh, PW-11 Khangar Singh and PW-10 Sarso Devi, it is proved that in-laws of deceased-Leela harassed her for dowry and committed her murder by strangulating her. It is also argued that the death of deceased-Leela took place within five years of marriage, therefore, there is a presumption of commission of offence by the respondents, but the trial court without taking into consideration the prosecution evidence in right perspective has acquitted the accused respondents. Learned Public Prosecutor has, therefore, prayed that the impugned judgment may kindly be set aside and the accused respondents be convicted for the offences punishable under Sections 304-B, 202 and 201 IPC, for which they have been charged by the trial court. 6. Per contra, learned counsel for the respondents has argued that there is no illegality in the impugned judgment, whereby the trial court has acquitted the respondents. 6. Per contra, learned counsel for the respondents has argued that there is no illegality in the impugned judgment, whereby the trial court has acquitted the respondents. It is also argued that the accused respondents have sufficiently countered the presumption of their guilt for the offence punishable under Section 304-B IPC. It is also argued that the prosecution has failed to produce cogent and reliable evidence to prove the fact that soon before the death of deceased-Leela, she was subjected to cruelty and harassment in connection with the demand of dowry. It is also argued that the FIR in the matter was filed with a delay of more than one month and no satisfactory explanation for the said delay has been provided. It is also argued that the factum of unnatural death of sister of the complainant PW-5 Pahad Singh has not been proved by the prosecution and the prosecution has also failed to prove that the accused respondents have disappeared the evidence of offence or furnished false information or has not given information of offence to the police and, therefore, the trial court has rightly acquitted the accused respondents vide impugned judgment. 7. Heard learned counsel for the rival parties and carefully scrutinized the record. 8. So far as the power of the High Court in reversing the finding of acquittal into conviction is concerned, there is no quarrel that the High Court has power to convert the acquittal into conviction, however, it is equally true that if the trial court's judgment is based on evidence and the view taken by the trial court in favour of the accused is possible, the High Court would not be justified in interfering only on the ground that a different view could also be taken. 9. On this point, the Hon'ble Supreme Court in the case of Gopal Singh & Ors. v. State of M.P., reported in 2010 Cr.L.R. (SC) 453 has held as under: "7. We have considered the arguments advanced by the learned counsel for the parties. The High Court's power while converting an acquittal into a conviction is no longer a matter of speculation and debate. v. State of M.P., reported in 2010 Cr.L.R. (SC) 453 has held as under: "7. We have considered the arguments advanced by the learned counsel for the parties. The High Court's power while converting an acquittal into a conviction is no longer a matter of speculation and debate. It is now well settled that if the trial Court's judgment is well based on the evidence and the conclusion drawn in favour of the accused was possible thereof, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court was entitled to reappraise the evidence there should be substantial and compelling reasons for setting aside an acquittal order and making one of conviction." In Anil Kumar Gupta v. State of Uttar Pradesh, reported in 2011 Cr.L.R. (SC) 303, the Hon'ble Supreme Court has held as under : "10. In Ramesh Babulal Doshi, this Court held that "the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence, cannot constitute a valid and sufficient ground to interfere an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative, the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". 11. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". 11. In Dwarka Das, this Court following the decision in Ramesh Babulal Doshi, further observed that "there 14 cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice". 12. In Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 , this Court re-appreciating the aforesaid principles, further observed that "in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point". Having stated so, this Court also held that an appellate Court has full power to re-appreciate, review and reconsider the evidence upon which the order of acquittal is founded. It is, therefore, appropriate if we consider some of the leading decisions on the point". Having stated so, this Court also held that an appellate Court has full power to re-appreciate, review and reconsider the evidence upon which the order of acquittal is founded. But it is well established that if two views are possible on the basis of evidence on record and one favourable view to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court." 10. In view of the principles laid down in above referred judgments, if we analyze the evidence available on record, it is not in dispute that the complaint was lodged by PW-5 Pahad Singh on 28.03.1993 while claiming that in-laws of his sister killed her on 16.02.1993. The prosecution has failed to produce any evidence to prove the fact that the sister of PW-5 Pahad Singh died on 16.02.1993. It is also to be noticed that though the PW-5 Pahad Singh in his Court statements has clearly admitted that he came to know about the death of his sister 20 days before from the date of filing of complaint, but has failed to explain that why he had filed the FIR after the delay of 20 days from the date he came to know about the fact of death of his sister. 11. Moreover, PW-4 Kan Singh has stated that he came to know about the death of deceased-Leela, sister of PW-5 Pahad Singh, on the same date in the second month of year 1993, however, he has not informed about the said fact to PW-5 or any of the family members of deceased though he is the resident of the same village. It is also to be noticed that the police did not investigate from any person in the village Lakha, where the accused persons allegedly killed the sister of PW-5 Pahad Singh. 12. So far as the recovery of cloths of deceased are concerned, the trial court has observed that the same were recovered from the open place which was not in exclusive possession of the in-laws of deceased and the police has also did not recover the same in the presence of any resident of village Lakha and the witness to the said recovery are the police constables, therefore, no reliance can be placed on such recovery. After going through the entire prosecution evidence, I am also of the opinion that the prosecution story is highly doubtful as the FIR was lodged after a delay of more than one month and there is no definite evidence available on record to suggest that accused respondents have killed the sister of the PW-5 Pahad Singh and disappeared the evidence or failed to inform the police about the commission of offence. When the prosecution has failed to prove the fact that the accused respondents have killed the sister of complainant PW-5, the trial court has not committed any illegality in acquitting the accused respondents vide impugned judgment. Keeping in view the principle laid down by the Hon'ble Supreme Court in the above referred cases, if we go through the conclusions arrived at by the learned trial court while acquitting the accused persons for the offences under Sections 304-B, 202 and 201 IPC, I find that the conclusions arrived at by the learned trial court could be a possible view which can be arrived at on the basis of the evidence produced by the prosecution. Hence, I do not find any force in this criminal appeal and the same is hereby dismissed. Record of the trial court be sent forthwith.