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2018 DIGILAW 1822 (RAJ)

Sher Singh v. State of Rajasthan

2018-09-04

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT VINIT KUMAR MATHUR, J. 1. The present criminal appeal has been preferred by the accused-appellant Sher Singh against the judgment dated 19.11.2010, passed by learned Additional Sessions Judge (Fast Track) No.1, Bikaner in Sessions Case No.13/10 by which the appellant has been convicted for offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 2,000/-, in default thereof to further undergo two months' simple imprisonment. 2. The brief facts for appreciating the controversy in the present case are that on 08.02.2010 at 12.30 AM a written report was filed by Meghraj stating therein that he is the resident of Bangla Nagar, Bikaner and is having a plot in the Karni industrial area, Bikaner being Plot No.G-21. On this plot he is having a workshop of truck body building titled as "Meghraj Truck Body Building". The aforesaid workshop is not operational and Gena Ram S/o Om Prakash is working as Chowkidar there. Gena Ram stays in the workshop only. On 06.02.2010 the Khalasi of their Truck Sher Singh Rajput came to the workshop for staying there for two days. Whether to allow Sher Singh to stay in the workshop or not, Gena Ram made a telephone call seeking his permission which was granted. On 07.02.2010 at around 11.00 PM the owner of the grocery shop Raju (whose shop is across their shop) telephoned his son Om Prakash informing him that the gate of their workshop is lying in opened condition. On this information, he and his son Om Prakash went to the workshop and found that Gena Ram was lying in the 'veranda' and his body was covered with a blanket and on removing the same they found that Gena Ram's face and head were having several injuries and the dead body was lying in a pool of blood. It appeared that face and head of Gena Ram were hammered with a solid blunt iron object. It was further stated that Gena Ram died because of the injuries. It was further stated in this complaint that a bicycle which was kept in the workshop was also missing. On being asked about the bicycle, Raju informed that he saw Sher Singh going out of the workshop at around 5.30 PM at a fast speed. It was further stated that Gena Ram died because of the injuries. It was further stated in this complaint that a bicycle which was kept in the workshop was also missing. On being asked about the bicycle, Raju informed that he saw Sher Singh going out of the workshop at around 5.30 PM at a fast speed. It was further stated in the complaint that since accused Sher Singh Khalasi was with Gena Ram for the whole day they had a doubt that Sher Singh had killed Gena Ram. The dead body of Gena Ram was lying on the spot. On this complaint, a formal FIR was registered on 08.02.2010 and the same was sent to the Chief Judicial Magistrate on 08.02.2010 at 11.55 AM and police conducted investigation. 3. After the investigation police filed challan against the accused-appellant. 4. Learned Trial Court framed charge against the accused-appellant Sher Singh for the offence under Section 302 IPC for committing murder of Gena Ram. 5. The accused denied the charge and sought for trial in the matter. 6. During the trial, the prosecution examined as many as 11 witnesses and 30 documents were exhibited. 7. No defence witness was examined and only a document Ex.D-1 which is police statement of Om Prakash was exhibited. 8. The statement of accused was recorded under Section 313 Cr.P.C. and he was confronted with the evidence adduced during the course of trial to which he denied and stated that he is innocent, he did not come to the workshop of Meghraj Ji and he has not killed anybody. The Baniyan has not been recovered from him. He has not given an information with respect to the recovery of Patti (Blade) nor the same has been recovered from him. 9. Learned trial Court after hearing the arguments from both the sides, taking into consideration the statement of witnesses and after going through the same, convicted and sentenced the accused-appellant vide judgment dated 19.11.2010. 10. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 11. 10. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 11. The present is a case of circumstantial evidence and the entire case of the prosecution hinges on the testimony of PW-7 Raju, who is said to have a grocery shop in front of the workshop and as per the FIR, he is stated to have informed Meghraj and his son Om Prakash that the gate of their workshop is lying open. 12. Pw-7 Raju appeared in the witness box and has not supported the story of the prosecution and thus the star witness of the prosecution was declared hostile. 13. Pw-8 Meghraj @ Megha Ram is the lodger of the FIR. He in his statement has stated that in Karni Nagar he is having a workshop of truck body building at Plot No.G-21 in the industrial area. The same has not been rented out and whenever the work is there, the workshop is used, otherwise it remains closed. Gena Ram is the person who has been kept as Chowkidar in the workshop. On 07.02.2010 since the workshop was closed Gena Ram was present in the workshop and there was no other staff present in the workshop. It is further stated that on that day, Sher Singh Khalasi stayed in the workshop as on 06.02.2010 Gena Ram telephoned him seeking his permission for allowing Sher Singh to stay in the workshop and he granted the permission for the same. On 07.02.2010 since it was Sunday they had not gone to the workshop, the shopkeeper of the near vicinity informed that Sher Singh and Gena Ram were seen together. On the night of 07.02.2010 at around 11.00 PM, Raju called his son Om Prakash informing him that gate of their workshop is lying in open condition and lights are also off. On getting this information he and his son Om Prakash went to his workshop and saw Gena Ram lying in the veranda with a blanket covered on his body. On removing the blanket they saw that Gena Ram was lying dead in a pool of blood and his face and head were having injuries presumed to have been given by the blunt object. A bicycle was also missing from the workshop. On removing the blanket they saw that Gena Ram was lying dead in a pool of blood and his face and head were having injuries presumed to have been given by the blunt object. A bicycle was also missing from the workshop. On asking Raju, he informed that at around 5.00 PM Sher Singh was seen going out of the workshop, he was outfaced and not in his normal self. Raju further informed him that he has seen Gena Ram and Sher Singh together in the day hours. On the next day police asked Sher Singh about the murder of Gena Ram then Sher Singh informed that Gena Ram was killed by him with the iron Patti (blade) which was recovered at the instance of Sher Singh from beneath the stone lying under the bridge near Karni Nagar. The recovery memo Ex.P-23 was prepared and he had affixed his signature on the same as an attesting witness. It was further stated that Sher Singh was apprehended by the police and was taken to the Police Station thereafter the FIR was lodged. 14. In the cross examination this witness has submitted that on 08.02.2010 Sher Singh was apprehended by the police from the Gajner Road. He further stated that at what time Sher Singh was apprehended, he is not aware. He further stated that Jawanta Ram also accompanied him. 15. Pw-9 Om Prakash S/o Meghraj in his statement has stated almost on the same lines as that of PW-8. He stated that Raju has not telephoned him but he has telephoned to his father. 16. Pw-10 Ishwar Prasad who is the Investigating Officer has stated that after receipt of the FIR he investigated the matter, collected the relevant information, recorded the statements of the witnesses, prepared the site plan, recovery memo and other memos and also arrested the accused after preparation of the documents as per law. In his cross examination he has stated that no finger prints were taken. The accused Sher Singh was brought to the Police Station from Gajner Road for interrogation and thereafter he was arrested. He further stated that he has not taken note of the clothes worn by Sher Singh nor there were any blood stains on the same. He further stated that no witness in their statements has stated that they have seen Sher Singh carrying any weapon. He further stated that he has not taken note of the clothes worn by Sher Singh nor there were any blood stains on the same. He further stated that no witness in their statements has stated that they have seen Sher Singh carrying any weapon. He further stated that normally while leaving Police Station, Rojnamacha (Daily Diary) is filled and on return the entries are made. 17. Pw-11 Jawanta Ram in his statement stated that he went to the workshop of Meghraj where police personnel were present and a dead body was lying there. He is the attesting witness to the site plan Ex.P-18. He is also attesting witness to the samples taken from the spot Ex.P-19, Chappals Ex.P-20, blood stained blanket Ex.P-21 and the playing Cards Ex.P-22. He is further stated that after two days of the incident one white painted Patti (Blade) having length around 1 feet was recovered from the Nala and Ex.P-23 was prepared under his signature. He further stated that except this, he does not remember the recovery of any thing else. On a suggestion being given by the learned Addl. Public Prosecutor, this witness replied that one Baniyan of Sher Singh was recovered which was blood stained. In the cross examination, this witness stated that Baniyan was not recovered in his presence and the same was already in the custody of the police. He has also discredited the recovery of Patti (blade). On the contrary he has stated that the police has stated that they just want to show his presence for the recovery of the Patti (blade). 18. Pw-1 is Dr. P.K. Saini who has conducted postmortem of the deceased Gena Ram and has stated in his statement that 12 injuries on the body of deceased were found. He further stated that the injuries sustained by the deceased were given by more than one weapon. 19. The other prosecution witnesses i.e. PW-2 Ramkar, PW-3 Madan Lal, PW-4 Tarachand, PW-5 Shyam Sunder are the witnesses who have taken the samples of recovery etc. which are not very relevant for the purpose. 20. Pw-6 Om Prakash S/o Maga Ram who is the father of the decseased Gena Ram stated in his statement that he reached the workshop of Meghraj @ Megha Ram. He was informed about the death of his son, but it was not informed that as to who has killed his son. which are not very relevant for the purpose. 20. Pw-6 Om Prakash S/o Maga Ram who is the father of the decseased Gena Ram stated in his statement that he reached the workshop of Meghraj @ Megha Ram. He was informed about the death of his son, but it was not informed that as to who has killed his son. He also stated that there was no enmity between his son deceased Gena Ram and the accused-appellant Sher Singh. 21. We have heard learned counsel for the appellant and the learned Public Prosecutor. Perused the record of the trial Court. 22. Learned counsel for the appellant submits that the accused is innocent and he has been falsely implicated in the present case. There is no eye-witness of the incident, nor there is any clinching evidence to prove the offence alleged against the appellant. The prosecution has failed to prove the offence alleged beyond reasonable doubt. There are material contradictions in the statements recorded by the prosecution. The chain of circumstances not being complete and there is no direct evidence in the matter. It will not be appropriate and safe to convict the appellant in the present case. The prosecution has miserably failed to collect and connect the pieces of evidence in such a fashion that chain of circumstance is complete which indicates that accused Sher Singh is the only person who has actually killed the deceased Gena Ram. It is further submitted that the star witness of the prosecution PW-7 Raju Ram who could have thrown light in the present incident has been declared hostile. All other witnesses are hearsay witnesses as whatever they are stating they are stating as informed by Raju Ram. There is no direct eye-witness to the incident, much less in the testimony of PW-8 and PW-9, it has been stated that Raju Ram informed them on telephone about the alleged incident therefore they reached the workshop where Raju Ram is stated to be the witness of last seen but Raju Ram has not supported the story of the prosecution. The information divulged by PW-8 and PW-9 is of no consequence as they are hearsay witnesses and are interested witnesses also. He further submits that even in the arrest memo of the appellant it has not been mentioned that what kinds of clothes, chappals etc. were worn by the accused? The information divulged by PW-8 and PW-9 is of no consequence as they are hearsay witnesses and are interested witnesses also. He further submits that even in the arrest memo of the appellant it has not been mentioned that what kinds of clothes, chappals etc. were worn by the accused? Whether they were blood stained or not and, therefore, he submits that recovery of blood stained clothes is highly doubtful. 23. Learned counsel for the appellant further submits that all the witnesses have submitted in their statements that accused was in the custody of police right from the morning of 08.02.2010 whereas the arrest memo shows that the accused was arrested at 10.20 PM on 08.02.2010. This fact also shows that the entire matter has been fixed by the police. He further submits that the recovery of Baniyan of Sher Singh is also concocted. Jawanta Ram who is the witness to the recovery has not supported the same and has submitted that it was already in the custody of police and the same was not recovered in his presence. 24. Learned counsel further submits that present is a case of circumstantial evidence and there is no direct evidence available on record to connect the appellant with the alleged crime. He further submits that there is no evidence of last seen i.e. "deceased was seen alive lastly in the company of accused Sher Singh". There is no motive as Om Prakash the father of deceased Gena Ram categorically stated that there was no enmity between the deceased Gena Ram and the accused-appellant Sher Singh. The recovery is highly doubtful as one of the witness i.e. PW-11 Jawanta Ram has not supported the recovery of Baniyan and Iron Patti (blade). He further submits that Meghraj @ Megha Ram (PW-8) is an interested witness as deceased Gena Ram was his servant and testimony of Meghraj @ Megha Ram is not worth credence. 25. He further submits that injuries on the body of the deceased are although of incised wound but it is highly doubtful that a blade of 11 inches long 1 inches in thickness can cause such injuries. He further submits that as per the opinion of the Doctor the case of death is "due to antemortem head injuries caused by blunt weapon" but there is no recovery of any blunt weapon except 11 inches Patti (blade). 26. He further submits that as per the opinion of the Doctor the case of death is "due to antemortem head injuries caused by blunt weapon" but there is no recovery of any blunt weapon except 11 inches Patti (blade). 26. Learned counsel for the appellant argues that as per the story of the prosecution, a telephone call is said to have been made by Raju (PW-7) to Meghraj @ Megha Ram (PW-8) but there is no call detail nor there is recovery of telephone etc. which raises doubt on the prosecution story. 27. Learned counsel therefore, prays that appeal of the accused-appellant may be allowed and the judgment impugned passed by the learned trial Court may be quashed and set aside. 28. On the other hand, learned Public Prosecutor has supported the judgment under challenge and vehemently argued that the charge against the accused-appellant has been proved by the evidence produced on record and there is no deviation in the statements recorded during the course of trial. There are no contradictions in the statements recorded of the prosecution witnesses. The learned Public Prosecutor submits that PW-8 Meghraj has very categorically stated in his statement that PW-7 Raju has informed him about the entire incident and on having received telephone call from him when he reached the spot i.e. their workshop, they saw dead body of Gena Ram lying in a pool of blood and thereafter recoveries were made in the presence of PW-8 Megha Ram who has supported the prosecution story and declaration of PW-7 as hostile witness is nothing but winning over of the same by the accused. He submits that the conviction has rightly been made by the learned trial Court on the basis of recovery and the same is not required to be interfered by this Court as the prosecution has been able to prove the offence committed by the accused-appellant beyond reasonable doubt. 29. We have considered the arguments advanced by learned counsel for the appellant and the learned Public Prosecutor. 30. In view of the detailed facts noticed by us, the star witness of the prosecution i.e. PW-7 Raju who could have been the person to bring the truth in the matter has been declared hostile by the prosecution as he has not supported the story of the prosecution. 30. In view of the detailed facts noticed by us, the star witness of the prosecution i.e. PW-7 Raju who could have been the person to bring the truth in the matter has been declared hostile by the prosecution as he has not supported the story of the prosecution. In fact he is the person who is said to have made telephone call to Megha Ram and his son Om Prakash on the basis of which on reaching the workshop Megha Ram and Om Prakash have submitted their statements as a prosecution witness narrating the entire story. The statements of PW-8 Meghraj @ Megha Ram and PW-9 Om Prakash are basically made on the information supplied by PW-7 Raju Ram. Hence the same are clearly hearsay evidence again the basis being as informed by PW-7 Raju Ram who has been declared hostile. 31. A bare reading of the statements of PW-8 and PW-9, PW-10 and PW-11 shows major contradictions, the contradictions to the effect that when Sher Singh was apprehended in the morning itself, arrest is being shown at 10.20 PM. The recoveries having been effected in the presence of two witnesses namely Jawanta Ram and Megha Ram but in the statements recorded, Jawanta Ram has stated that the articles were already in the possession of police and further he has stated that he was told by the police just to show his presence at the time of preparation of the recovery memo and nothing else. The statement of Megha Ram PW-8 also does not inspire confidence as the same is also not corroborating with the recoveries being effected. 32. Pw-9 Om Prakash who is the father of the deceased in his statement has also categorically submitted that there was no enmity between the deceased and the appellant, therefore, no motive can be attributed. 33. The most important thing in the present case is the telephone call which is said to have been made by Raju (PW-7) to Meghraj @ Megha Ram (PW-8). There is no call detail nor there is recovery of telephone etc. to establish the fact that PW-8 Meghraj @ Megha Ram and PW-9 Om Prakash reached workshop on receiving information from Raju (PW-7). There is no call detail nor there is recovery of telephone etc. to establish the fact that PW-8 Meghraj @ Megha Ram and PW-9 Om Prakash reached workshop on receiving information from Raju (PW-7). There is a major lapse on the part of the prosecution to have not produced the telephone and the call details made therein to connect the fact that on having informed by PW-7 Raju, PW-8 Meghraj @ Megha Ram and PW-9 Om Prakash reached at the spot of incident i.e. their workshop. 34. The information with respect to the bicycle which was missing from the workshop was also obtained by PW-10 the Investigating Officer under Section 27 of the Evidence Act from the accused but there was no recovery of the aforesaid bicycle. 35. There is no witness of the last seen and there is no motive also behind the killing of Gena Ram by the present appellant and the recovery of articles i.e. Baniyan and Patti (blade) is highly doubtful. However, as per the postmortem report, the fatal injury is said to have been caused by a blunt weapon whereas there is no recovery of any blunt weapon in the present case. 36. The Hon'ble Supreme Court in the case of Sonu @ Amar Vs. State of Haryana, (2017) AIR SC 3441 has held that in the case of circumstantial evidence, certain principles are to be followed which are as under: "1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 37. Keeping in mind the above principles we are of the view that evidence against the present appellant is not sufficient to hold him guilty of the offence under Section 302 IPC in the present case. 38. Keeping in mind the above principles we are of the view that evidence against the present appellant is not sufficient to hold him guilty of the offence under Section 302 IPC in the present case. 38. Therefore, in view of whatever stated above, we are of the view that chain of circumstantial evidence is absolutely missing, not corroborated by the statements of prosecution witnesses and the fact of recovery of articles being highly doubtful and the star witness of the prosecution being declared hostile goes to show that the offence alleged against the appellant has not been proved beyond all reasonable doubts. 39. Resultantly, on the discussion made above, benefit of doubt is given to the accused appellant and thereby the appeal preferred by the appellant Sher Singh is allowed and judgment of conviction and order dated 19.11.2010 awarding sentence, passed by the learned trial Court is set aside and the appellant is acquitted of the charge levelled against him. The appellant Sher Singh be set at liberty forthwith if not required in any other case.