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2017 DIGILAW 1349 (RAJ)

Dayanand v. State Of Rajasthan

2017-05-25

MANOJ KUMAR GARG, MOHAMMAD RAFIQ

body2017
JUDGMENT Manoj Kumar Garg, J. - This appeal is directed against the judgment and order dated 27.04.2011 passed by Special Judge SC/ST Prevention of Atrocities Cases-cum-District and Sessions Judge Jhunjhunu in Sessions case No. 93/2010 by which the learned trial court convicted the appellants as under :-Under Section 363 I PC to five years rigorous imprisonment a fine of Rs. 1,000/-in default of payment of fine to further one year simple imprisonment under Section 302 read with 120B IPC to life imprisonment and a fine of Rs. 5,000/-each in default of payment of fine further one year simple Imprisonment under Section 201 IPC to three years rigorous imprisonment and fine of Rs. 1,000/- in default six months'' simple imprisonment. All the sentences were to run concurrently. 2. Brief facts of the case are that one written report was submitted by Richpal S/o Khadu Ram on 28.05.2010 before the SHO Police Station Guda Gaurji in which he mentioned that her (his) grand-daughter Bharti aged about 15 years was kidnapped by Pintu and Dayanand. 3. Complainant further mentioned that these accused persons enticed and induced her and took her on a motor cycle. He along with Sumita and Sugni searched out but couldn''t find. Both the accused took away Bharti by force. The case may be registered against them and Bharti should be recovered. 4. On the basis of this written report, the Police registered a formal FIR Ex.P7 and FIR No. 159/2010 at the Police Station Guda Gaurji, District Jhunjhunu, for the offences under Sections 363, 366 IPC and 3(2)(5) of SCT, ST Act. 5. During the course of investigation complainant Richpal Singh submitted one written application Ex. P8 before the District Superintendent of Police Jhunjhunu on 11.06.2010 in which he mentioned that Police has not investigated properly and action should be taken against the accused person. The Superintendent of Police Jhunjhunu thereafter changing the investigating officer and appointed a new investigating officer who started investigation in this case. The Police recorded the statement of various witnesses under Section 161 Cr.P.C., 1973 and collected documents and filed a challan against present appellants along with one more accused namely Om Prakash for the offences under Sections 363, 366A, 302, 376(2)(g) IPC and 3(1 )(xii), 2(2)(v) of SC/ST Act, before the Court of Judicial Magistrate First Class Udaypur Wati. 6. The Police recorded the statement of various witnesses under Section 161 Cr.P.C., 1973 and collected documents and filed a challan against present appellants along with one more accused namely Om Prakash for the offences under Sections 363, 366A, 302, 376(2)(g) IPC and 3(1 )(xii), 2(2)(v) of SC/ST Act, before the Court of Judicial Magistrate First Class Udaypur Wati. 6. The cognizance was taken by the Judicial Magistrate First Class Udaypur Wati on 05.07.2010 and case was transferred to the Court of Special Judge, Prevention of Atrocities cases-cum-District & Sessions Judge Jhunjhunu. 7. The charges in the case were framed against the present accused appellants as well as one more accused namely Om Prakash. 8. Prosecution examined as many as ten witnesses in all. Thereafter accused''s statements under Section 313 Cr.P.C., 1973 were recorded. They simply mentioned that they had been falsely implicated by the witnesses. No witness was examined on the defence Side. After conclusion of the trial, the learned Special Judge, SC/ST Prevention of Atrocities Cases-Cum-District and Sessions Judge, Jhunjhunu by his judgment dated 27.04.2011 acquitted co-accused Om Prakash from all the charges levelled against him but convicted the present appellants as mentioned earlier. 9. It may be submitted here that these appellants were acquitted by the trial Judge for the offences under Sections 366A, 376(2)(g) IPC, as well as for the offences under Sections 3(1 )(xii), 3(2) (v) of SC/ST Act. The accused appellants were dissatisfied with the impugned judgment of conviction and sentence. They preferred this appeal before this Hon''ble Court for setting aside the judgment passed against them. 10. Learned counsel for the accused appellants assailed the judgment and the order passed by the trial Court and argued that this is a case of circumstantial evidence and the chain of circumstances does not connect against the present appellants. It is further argued by the learned counsel that the deceased Bharti went from the house in the dead of a dark night. She slipped and fell in the well and succumbed to the injuries received in the well. The prosecution had not examined the Doctor in this case, so the autopsy report has not at all been proved. It is further argued by the learned counsel that the deceased Bharti went from the house in the dead of a dark night. She slipped and fell in the well and succumbed to the injuries received in the well. The prosecution had not examined the Doctor in this case, so the autopsy report has not at all been proved. It is argued by the learned counsel that the girl Bharti being ashamed her act that she slipped on her own in the dark night and her act having brought her in a state of extreme embarrassment, so she committed suicide. 11. Learned counsel further argued that the so called eye-witnesses in this case are examined as Sumita Devi (PW-6) who was the mother of the deceased, Prem Devi (PW-7) who was also a near relative and PW-8 Savitri Devi who was also a very near relation. All the witnesses did not support the prosecution story and they had been declared hostile. The only evidence against the appellants are PW-4 Bhagirath and PW-5 Sugni Devi. In their statements, there are material contradictions, improvements and omissions. They changed their stories in each and every statement. In their first statement, they had not implicated any of the accused but in their subsequent statements they implicated the present appellants. So no reliance can be placed on their statements. The informant Richpal was not an eye-witness. He came later on and after that he lodged this written report. He further argued that PW-10 Shri Arjun Singh, I.O. clearly mentioned that he never made an accused namely Daya Nand and Om Prakash and he only proposed for filing a challan against the accused Pintu for the offences under Section 306, 366, 363 I.P.C. and under Section 3(1)(xii), 3(2)(v) of SC/ST Act. After considerable delay, Investigating Officer was changed and he recorded subsequent statements of the witnesses and filed a challan against all the three accused persons. Counsel for the appellants further stated that there was no motive in this case and no weapon was recovered from any of the accused-appellants and there is a material contradiction about the arrest of the appellant Pintu because some of the witnesses stated that they caught hold of appellant Pintu on the same night and handed over to the police but arrest memo of Pintu shows Ex. P21 dated 03.06.2010 after six days of the incident. P21 dated 03.06.2010 after six days of the incident. The recovery of a motorcycle from the appellant Dayanand and the recovery of a mobile and an underwear from the appellant Pintu does not connect in this case. It is further submitted that disclosure statement of these recoveries made by the appellants were not attested by any independent witness. They were only signed by the Investigating Officer of the case. So, there is no independent corroboration of testimony, no independent witness testified to the disclosures statements. 12. In the support of their case, the counsel has placed reliance upon following judgments :- 1. Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri.LJ 1738 . The Hon''ble Apex Court while dealing with circumstantial evidence has held that the onus was on the prosecution, cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. 2. Rameshwar and Dinesh @ Pillu v. 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. v. State of Punjab, A.I.R. 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. 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. 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 carves 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, no independent-witness testified about the disclosure statement and the fact of recovery of motorcycle at the instance of appellant, Dayanand I and merely on the basis of recovery of motorcycle and that too from an open place, the appellant, Dayanand cannot be connected with the crime as no one has identified the motorcycle as the one used by Dayanand at the time of incident. 3. The Hon''ble Apex Court in Harjit Singh v. State of Punjab, A.I.R. 2002 Supreme Court 3040 has held, as under :- "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." 4. The Supreme Court in Vasanta Sampat Dupare v. State of Maharashtra, 2015 (1) SCC 253 , has reiterated the principles governing the "appreciation of evidence in a case bases 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 be 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. 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." 5. In Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan reported in A.I.R. 2013, Supreme Court 3150 , Apex Court held as under :-"In the instant case, there have been major contradictions/improvements/embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. The chain of links connecting the Appellant with the crime appears inconclusive. It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the Court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the Court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." It is in fact, the entirety of the situation which must be taken into consideration. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the Court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the Court must determine whether the residuary evidence is sufficient to convict the accused." 6. In Subhash v. State of Haryana, A.I.R. 2011 SC 349 . "This Court has held that a significant omission in the statement of a witness recorded under section 161 Code of Criminal Procedure, 1973 may amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal." 7. Jaswant Gir v. State of Punjab, 2005(12) SCC 438 has held as under "The first and foremost aspect which needs to be taken note of is that RW. 9 is not a person who had intimate relations or friendship with the Appellant. RW. 9 says that he knew the Appellant to some extent'' meaning thereby that he had only acquaintance with him. In cross-examination, he stated that he did not visit his house earlier and that he met the Appellant once or twice at the bus-stand. There is no earthly reason why he should go to P.W. 9 and confide to him as to what he had done. According to P.W. 9, the Appellant wanted to surrender himself to the police. But there is no explanation from P.W. 9 as to why he did not take him to the police station. He merely stated that the Appellant did not turn up thereafter. The circumstances in which P.W. 9 went to the police station and got his statement recorded by the police on 14.11.1997 are also not forthcoming. But there is no explanation from P.W. 9 as to why he did not take him to the police station. He merely stated that the Appellant did not turn up thereafter. The circumstances in which P.W. 9 went to the police station and got his statement recorded by the police on 14.11.1997 are also not forthcoming. In this context the statement of P.W. 9 towards the close of the cross-examination assumes some importance. He stated that he had some cases pending in the Courts and that he was seeking the help of the police in connection with those cases and he was often going to the Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the Appellant, as narrated by P.W. 9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and P.W. 9 stated so before the police and as per the statement made by P.W. 9 to the police, all the three accused made the confession before him but he gave a different version in this Court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility a this witness is in doubt. One more point to be noted is that the alleged statement of the Appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence d consumption of alcohol by the deceased." 8. In Rambraksh v. State of Chhattisgarh, A.I.R. 2016 SC 2381 Criminal Appeal No. 462 of 2016 arising out of SLP Cri. No. 1962 of 2015 and decided on 12.05.2016, has held as under:- "In the present case as noticed above the Sessions Court as well s the High Court convicted the Appellant/accused No. 2 on the basis a last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the Appellant cannot be sustained in lav and liable to be set aside." 9. In Nizamand Ors. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the Appellant cannot be sustained in lav and liable to be set aside." 9. In Nizamand Ors. v. State of Rajasthan, 2016(1) SCC 550 , Criminal Appeal No. 413 of 2007, decided on 04.09.2015, has held as under:- "Normally, this Court will not interfere in exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage o'' justice, this Court will certainly interfere. The ''last seen theory'' seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the Appellants and no other inference. If more than one inference can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the Appellants cannot be sustained and the appeal ought to be allowed." 13. So, the learned counsel for the appellants argued that no case was made out against the accused-appellants and he further argued that at the most the case may travel to 306 I.P.C. 14. Per contra the learned counsel for the State vehemently argued this is a case of circumstantial evidence, each and every circumstances connect with the present appellants. In this case, the trial Court rightly convicted the present appellants in this case, so the judgment of the conviction should be upheld. 15. We have heard the learned counsel for the appellants at length as well as the learned counsel for the State and carefully gone through the recoil available before us. 16. This is a case of circumstantial evidence and a chain of circumstances should have been completed, only then the conviction could have been recorded. In this case, the complainant Richpal PW-3 m examined and he mentioned that when he came back to his house, Sumita Devi, Sugni Devi and Prem Devi informed him about the incident. 16. This is a case of circumstantial evidence and a chain of circumstances should have been completed, only then the conviction could have been recorded. In this case, the complainant Richpal PW-3 m examined and he mentioned that when he came back to his house, Sumita Devi, Sugni Devi and Prem Devi informed him about the incident. He lodged a written report before the police, he had not seen the occurrence at all. He reached later on. He further mentioned that the police was not properly investigating the matter. So he again filed one written report before the Superintendent of Police, Jhunjhunu which is Ex. P8 dated 11.06.2010. He further mentioned that the accused Pintu was caught by the ladies, who handed over him to the police. He contradicted his previous statements under Section 161 Ex. P1 dated 30.05.2010 and Ex. P2 dated 12.06.2010 which is material contradiction in both the statements. In last line, he mentioned that he had not seen the occurrence and compromise took place between them. 17. Bhagirath, (PW-4) mentioned that the ladies caught Pintu on the date of incident and they handed over Pintu to the police. His first statement was recorded before the Police as Ex. D3 dated 2.06.2010 and in his subsequent statement was recorded as Ex. D4 dated 12.06.2010. In both the statements, there are material improvement and the omissions contradicting each other. He clearly mentioned that he never saw any of the accused and he came after five to ten minutes of the occurrence and he never saw any of the accused who were driving the motorcycle. There was a material contradiction coming out from his statement. 18. Sugni Devi, PW-5 was present in the house and she mentioned that she caught accused Pintu on that night. The statement was recorded for the first time by the police under Section 161 which is Ex.5 dated 02.06.2010 and in her subsequent statement recorded by the police which is Ex. D6 dated 12.06.2010. In both the statements, there are material contradictions, improvements and the omissions. In her cross-examination, she mentioned that they did not search for Bharti and her statement was recorded after five days of the incident. She further stated that Bharti was so ashamed that she fell down in a well. This has been written in her statement under Section 161 Cr.RC. In her cross-examination, she mentioned that they did not search for Bharti and her statement was recorded after five days of the incident. She further stated that Bharti was so ashamed that she fell down in a well. This has been written in her statement under Section 161 Cr.RC. dated 02.06.201 but in the Court she mentioned that she had never given such type of the statement. She further stated that she caught hold the accused Pintu and went alone into their house. Nobody was present there. A material contradiction came out from her statement which she denied completely. 19. The other witnesses namely Sumita Devi PW-6, who was the mother of the deceased, Prem Devi PW-7, who was a very close relative of the deceased and Savitri Devi PW-8, who was also a very close relative of the deceased, have not at all supported the story of the prosecution. All these three witnesses were declared hostile by the prosecution. 20. First of all, investigation was conducted by Arjun Singh PW-10. He found that only Pintu was a culprit and he was about to file the challan against Pintu for the offences under Sections 306, 366, 303 I.P.C. and under Section 3(1)(xii), 3(2)(v) of SC/ST Act. He exonerated the accused Daya Nand and Om Prakash in this case, but later on, when the investigation was changed a newly appointed Bihari Lai PW-9 investigated the matter and filed a challan against all the three accused persons without assigning any cogent reason. 21. On the same evidence, learned trial Court acquitted co-accused Om Prakash for the charges levelled against him but convicted the present appellants without any cogent evidence. 22. Then about the recovery from Daya Nand, one motorcycle was recovered on 16.06.2010 Ex. P19. The occurrence took place on 26.05.2010. After twenty days, this motor cycle was recovered which does not connect against the accused-appellant Daya Nand. Accused Pintu was arrested a 03.06.2010, one underwear and one mobile was recovered from possession. So the recovery also does not connect against the present appellant Pintu. The Investigating Officer has not examined any witness o recovery. It may be submitted here that Ex. P19 recovery of motor-cycle was made from the possession of Daya Nand. Both the witnesses name Dharampal and Kurda Ram were not examined by the prosecution. So the recovery also does not connect against the present appellant Pintu. The Investigating Officer has not examined any witness o recovery. It may be submitted here that Ex. P19 recovery of motor-cycle was made from the possession of Daya Nand. Both the witnesses name Dharampal and Kurda Ram were not examined by the prosecution. From the possession of appellant Pintu, underwear was recovered which is Ex.PZ Attesting witnesses thereto are Ram Swaroop and Jai Pal. Both the witnesses were not examined by the prosecution. Likewise, the ''Spice'' mobile was recovered from the possession of Pintu. The attesting witnesses are Kara Kumar and Ashok Kumar. Both these witnesses were also not examined by the prosecution. There is thus no independent corroboration on these recovery and these recoveries do not connect against the present appellants. 23. There was no motive to kill Bharti by these accused appellant! These accused-appellants could not have murdered the deceased ''Bharti without any motive. It has come on the record that ''Pintu'' was loitering in the street and abetted Bharti. So the case may at the maximum travel to the offence under Section 306 I.PC. and due to this reason in an ashamed condition the deceased ''Bharti'' committed suicide. 24. That in this case no weapon of offence was recovered from any of the accused-appellants. So without any recovery of weapon, it cannot be said that the present appellants committed the murder of the deceased Bharti. In this case the doctor has not been examined by the prosecution to corroborate the injury to corroborate the postmortem report. Without this the case of the prosecution is highly doubtful. Conviction of the present appellants for the offences under Sections 363 and 201 I.PC. does not warrant any interference and they have been rightly convicted by the trial Court for such offence. However, the offences under Section 302 read with Section 120-B I.PC. is not made out against the present appellants and the conviction recorded by the trial Court against the present appellants for these offences deserves to be set aside. 25. In view of the above discussion, present appeal deserves to succeed and is accordingly allowed in part. Conviction of the accused-appellants for offence under Section 302 read with Section 120-B IPC and their consequential sentence of life imprisonment is set aside. 25. In view of the above discussion, present appeal deserves to succeed and is accordingly allowed in part. Conviction of the accused-appellants for offence under Section 302 read with Section 120-B IPC and their consequential sentence of life imprisonment is set aside. However the accused-appellants are instead convicted for offence under Section 301 IPC and sentenced to rigorous imprisonment for seven years with fine of Rs 5,000/-, in default whereof, each of them shall further undergo simple imprisonment of one year. Conviction of accused-appellants for offences under Sections 363 and 201 IPC and sentence awarded on each of such counts is maintained. The accused-appellants be set at liberty, if not required to be detained in any other case. 26. Keeping, however, in view the provisions of Section 437-A of Code of Criminal Procedure, the appellants, namely, Dayanand and Pintu @ Naresh are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six month undertaking that in the event of Special Leave Petition being filed against the judgment or on grant of leave, each of them, on receipt of notice thereof, shall appear before the Supreme Court.