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2016 DIGILAW 968 (RAJ)

Kour Chand v. State of Rajasthan

2016-07-11

NAVIN SINHA, PANKAJ BHANDARI

body2016
JUDGMENT : Navin Sinha, J. The Appellant stands convicted to life imprisonment under Section 302 I.P.C. and to five years rigorous imprisonment under Section 201 I.P.C., with fine of Rs.5,000/- and Rs.1,000/- respectively, in the event of failure to pay which he was required to undergo further one year rigorous imprisonment and three months' further rigorous imprisonment respectively. The sentences have been directed to run concurrently by the Additional Sessions Judge, Nohar dated 23.3.1987 in Sessions Case No. 1/1986. 2. The body of an unidentified male in partially burnt condition was lying on the road about 4kms. from Jaitpur towards Arjansar. Pursuant to information received from PW-7 Jethmal, PW-10 Ramesh Chandra registered a report under Section 174 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') on 21.1.1985 at 9.00 AM. An F.I.R. on basis of the same was subsequently lodged on 2.9.1985 under Sections 302, 201 I.P.C. On 23.1.1985, post mortem, Exhibit P-11, was done by PW-9 Dr. Jagdish Sankhla, who found the following injuries on the person of the deceased:- "1. Lacerated wound of 2cm X 0.5cm in front of left ear with extravasation of blood around it. 2. Rt.side temporal and parietal bone are exposed partially and depressed in middle. 3. A superficial wound over sternum longitudinally 20cm X 7cm size but no extra vasation of blood or clotted blood on base of wound. 4. Beth sides of muscles of neck and face are extra vasated with blood but no evidence of ligature mark even on dissection on neck. Cornea burnt. Scalp, Skull and Vertebrae: 1. Rt. Side temporal and parietal bones have irregular depressed fractures. Tissues around these bones are extra vasated with blood. 2. Lt. side temporal parietal and occipital bones are also having irregular depressed fractures and tissues around them are extra vasated with blood. 3. Madible fractured in middle part with extra vasation of blood. Membranes: Lacerated over both antero lateral surface and having clotted blood over it. Brain and Spinal Card: Laceration over both temporal and parietal lobes both sides with effussion of clotted blood base of brain liquified torn. Injuries and fractures by the side of scalp, face and forehead are ante mortem in nature. Lacerated wound over sternum area is post mortem in nature." 3. The deceased and his wife PW-5 Mukhtiyar Kour originally from Punjab, worked in the fields of Appellant. Injuries and fractures by the side of scalp, face and forehead are ante mortem in nature. Lacerated wound over sternum area is post mortem in nature." 3. The deceased and his wife PW-5 Mukhtiyar Kour originally from Punjab, worked in the fields of Appellant. The Appellant on basis of suspicion was taken into custody on 6.9.1985. His confession was recorded by the police on 9.9.1985. Based on the admissible part of it under Section 27 of the Evidence Act, a "Kasiya", Exhibit P-26 was recovered suspected to have been used for assault. 4. The Trial Judge on a composite consideration of the recovery, the evidence of PW-3 Baba Singh, brother of the deceased that PW-5 Mukhtiyar Kour, wife of the deceased had told him of illicit relations between her and Appellant, the opinion of PW-9 Dr. Jagdish Sankhla that the injuries on the head could be caused by a "Kasiya" also and invoking the last seen theory, convicted the Appellant. 5. Learned Counsel for the Appellant submitted that the present was a case of circumstantial evidence. There was no eye-witness to the assault. The half burnt body has not been positively identified as that of the deceased. In a case of circumstantial evidence all links in the chain of circumstances must be complete leading to the only inescapable conclusion of the Appellant being the assailant of the deceased. If there be any possibility of the evidence being incompatible with the guilt of the accused, or that death may have taken place in any other manner, the benefit of doubt has to be given to the accused and acquittal must follow. 6. The report under Section 174 Cr.P.C. lodged on 21.1.1985 has not been properly considered and appreciated by the Trial Judge. The report has to be read collectively along with the evidence of PW-10 Ramesh Chandra and not in an isolated manner. The possibility of the deceased having been the victim of a hit and run accident after which the concerned in an effort to destroy the evidence may have attempted to burn the body on the road cannot be ruled out. This is a reasonable possibility and cannot be rejected as a figment of imagination. 7. The possibility of the deceased having been the victim of a hit and run accident after which the concerned in an effort to destroy the evidence may have attempted to burn the body on the road cannot be ruled out. This is a reasonable possibility and cannot be rejected as a figment of imagination. 7. The Trial Judge has failed to appreciate that in the facts and circumstances of the present case there virtually existed no circumstantial evidence for conviction much less leading to the only inescapable conclusion of the Appellant being the assailant completely incompatible with any possibility of his innocence. The number and nature of injuries found on the person of the deceased by PW-9 Dr. Jagdish Sankhla during post mortem has not at all been considered and emphasis has only been laid on a lacerated injury on the head to link up with the recovery of a "kasiya" on the alleged confession of the Appellant merely because the doctor may have opined that the head injury could also be possible by a "Kasiya". The confession and recovery three days later after arrest and that the incident was 9 months earlier, all make it highly suspicious. The fact that "Kasiya" is a sharp edged weapon and that there existed no sharp cutting injury on the head has not been considered. The seizure memo Exhibit P-26 itself mentions that there was no blood on it. A lacerated wound can be caused by a hard blunt substance only. 8. It was next submitted that in a case of circumstantial evidence, motive may be an incriminating factor provided all other facts and circumstances are established forming a complete chain. In the present case, there is no chain of facts and circumstances proved by the prosecution raising any iota of suspicion let alone strong suspicion against the Appellant for invoking motive. Motive alone cannot be the basis for conviction but can be corroborative material only. The prosecution has not established the existence of nay motive whatsoever. The fact that PW-3 Baba Singh brother of the deceased may have deposed that PW-5 Mukhtiyar Kour wife of the deceased, may have told him that she suspected the Appellant because she had an illicit relation with him, is not a proof. It was mere hearsay evidence and the prosecution did not cross-examination in this regard. The fact that PW-3 Baba Singh brother of the deceased may have deposed that PW-5 Mukhtiyar Kour wife of the deceased, may have told him that she suspected the Appellant because she had an illicit relation with him, is not a proof. It was mere hearsay evidence and the prosecution did not cross-examination in this regard. The burden to establish motive was on the prosecution by leading evidence of an illicit relation. 9. Our attention was also invited to that part of the evidence of PW-5 Mukhtiyar Kour that she had earlier lodged a report at Police Station Pallu transferred for investigation with the present F.I.R., suspecting Titar Singh, Baba Singh and Tota Sigh as being assailants of her husband and did not name the Appellant even on suspicion. 10. Counsel for the State opposing the appeal submitted that the Appellant was last seen with the deceased evident from the deposition of PW-5 Mukhtiyar Kour. The evidence of PW-3 Saba Singh with regard to illicit relations between the Appellant established the motive for the crime, which when considered will the recovery of "Kasiya" on confession of the Appellant, all read together wen sufficient for his conviction. 11. It was next submitted that PW-3 Baba Singh had also deposed that tin Appellant had said that he would see to it that the deceased would come bad home within two weeks. There is no explanation by the defence why Rs.500 were given by the Appellant to the deceased and what was the mens rea behind it. Last but not the least, the Appellant and the deceased were well known to each other as the deceased had come from Punjab to work in the fields of the Appellant along with his wife and that there was some friction between them because of which subsequently the deceased and his wife had opted for going back to Punjab. 12. We have considered the submissions on behalf of the parties aid perused the evidence on record. 13. The present is a case of circumstantial evidence. There is no eye-witness to any part of occurrence. A conviction can be founded on circumstantial evidence if the prosecution story establishes a complete link in the chain of circumstances compatible only with the guilt of the accused ruling out any possibility of his innocence. 13. The present is a case of circumstantial evidence. There is no eye-witness to any part of occurrence. A conviction can be founded on circumstantial evidence if the prosecution story establishes a complete link in the chain of circumstances compatible only with the guilt of the accused ruling out any possibility of his innocence. If there be any break in the link of the chain of facts and circumstances creating even a minor doubt with regard to the innocence the accused, the benefit of doubt will have to be given. Additionally, if the evidence available also suggests that the occurrence may have taken place in some other manner, it will be a very strong circumstance in a case of circumstantial evidence and the burden of proof beyond all reasonable doubt will lie heavily on the prosecution. 14. The deceased and his wife PW-5 Mukhtiyar Kour were residents of Punjab. They came to the village of the Appellant to work in his fields and earn their livelihood. There is no evidence on record that on account of any animosity between them there had been any earlier quarrel, much less of intensity. Be that as it may, the deceased was found on the road on 21.1.1985. It is significant to note that his wife never lodged any police report immediately with regard to his being missing and on the contrary, named three other suspects in her report before Police Station Pallu on 2.9.1985, which was then sent for investigate along with the present F.I.R. It appears from her evidence that she changed her version completely only after the alleged confession of the Appellant. 15. Reading the police report under Section 174 Cr.P.C. lodged on 21.1.1985 Exhibit P-1 along with the evidence of PW-10 Ramesh Chandra, the fact that any blood may have been found on the coat of the deceased is hardly considered relevant. The Trial Judge has failed to take note of the tyre marks of a jeep vehicle where the body was found lying on the road. True it is that the clothes of the deceased have been recognised subsequently by PW-5 Mukhtiyar Kour. But the identification of the body as that of the deceased, by itself does not lead to any conclusions. 16. Evidence of prosecution witnesses has to be read collectively and not in isolated lines. True it is that the clothes of the deceased have been recognised subsequently by PW-5 Mukhtiyar Kour. But the identification of the body as that of the deceased, by itself does not lead to any conclusions. 16. Evidence of prosecution witnesses has to be read collectively and not in isolated lines. Reading the evidence of PW-10 Ramesh Chandra along with the nature and number of injuries found on the deceased during post mortem by Dr. PW-9 Jagdish Sankhla, the submission on behalf of the Appellant that the possibility of a hit and run accident in which the deceased may have died and the concerned may have tried to set his body on fire to destroy evidence of the accident is a possibility that cannot be ruled out completely. It stands to reason that if the Appellant had actually killed the deceased ana then tried to burn the body for destroying evidence, a secluded place would certainly have been more conducive for the purpose rather his doing so on the road so as to easily attract attention of others. This would be contrary to normal human behaviour. We therefore are unable to sustain the judgment under appeal to that extent. 17. It has rightly been urged that motive can be a corroborative factor in a case of circumstantial evidence, but it cannot be a piece of substantive evidence for conviction. The fact that there may be hearsay evidence available of PW-3 , Baba Singh regarding alleged illicit relations between the Appellant and the wife of the deceased PW-5 Mukhtiyar Kour, cannot be considered as substantive evidence for motive as it was the duty of the prosecution to lead some evidence at least with regard to existence of an illicit relation. 18. The fact that a "Kasiya" was recovered allegedly on confession of the Appellant belatedly hardly needs any discussion as we are of the considered opinion that it is completely irrelevant in the nature and number of injuries found on the person of the deceased. At this stage, we consider it appropriate to also refer to the evidence of PW-9 Dr. Jagdish Sankhla that nature of injuries found on the person of the deceased could also be the result of a road accident. 19. At this stage, we consider it appropriate to also refer to the evidence of PW-9 Dr. Jagdish Sankhla that nature of injuries found on the person of the deceased could also be the result of a road accident. 19. We regret our inability to concur with the submission of the State, Counsel that there was evidence of the Appellant having been last seen with the deceased from the deposition of PW-5 Mukhtiyar Kour. If the deceased went missing on 21.1.1985 and in light of the discussion as aforesaid, the lack of any explanation on the part of PW-5 Mukhtiyar Kour for lodging a report with regard to her missing husband as late as on 2.9.1985 and that too naming three other persons without suspecting the Appellant, there is no occasion to invoke the last seen theory. 20. In view of the aforesaid discussion, we are unable to sustain the conviction of the Appellant. The appeal is allowed. The Appellant is set at liberty, but subject to compliance by him with the conditions in Section 437-A Cr.P.C. by execution of bail bonds for Rs.20,000/- with two sureties of like amount within a period of two months. Appeal allowed.