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2018 DIGILAW 48 (RAJ)

STATE OF RAJASTHAN v. AMAR SINGH

2018-01-03

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : GOVERDHARN BARDHAR, J. 1. The instant criminal leave to appeal has been filed by the State of Rajasthan against the impugned judgment dated 25.02.2012 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Alwar (Raj.) in Sessions Case No. 73 of 10, whereby respondents have been acquitted of the charge framed against them under Sections 364-364 read with section 120B, 302-302 read with 120B, 397 and 201 IPC and respondent-Bhagwat 2 Singh has been acquitted of the charge framed against him under section 3(ii)(v) of the Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act. 2. The factual matrix of the case is that complainant Samunder Singh (PW1) submitted a written report (Ex.D/1) at Police Station Kathumar (Alwar) to this effect that "today i.e 16.01.2010 at about 9:30 AM he received an information that in his field of mustard the dead body of unknown person is lying. Then he came to his field and saw that dead body of unknown person is lying in his field situated near the way of Berko to Isrota. The deceased was having injuries on the right side of his face and head. Some cloth were lying near him and some were wearing by him. Thereafter the nearby persons also came. Some unknown person put the dead body in the night in the field which could not be identified. 3. On this, a case bearing No. 13/2010 for the offence under Sections 302, 201 of the IPC was registered at Police Station Kathumar and after investigation, challan was filed against the accused respondents before the learned Judicial Magistrate, Ist Class, Kathumar, where-from the case was committed to the Court of learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Alwar (Raj.) for its trial. Learned trial court after hearing the arguments of both the parties, framed the charges against both the accused respondents for the offences under Sections 364-364 read with section 120B, 302-302 read with 120B, 397 and 201 IPC and also against accused respondent-Bhagwat Singh under section 3(ii)(v) of the Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act and explained them, who denied for the same and claimed for trial. 4. To substantiate the charges, prosecution examined as many as 21 witnesses and exhibited 34 documents. After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C., 1973 were recorded. 4. To substantiate the charges, prosecution examined as many as 21 witnesses and exhibited 34 documents. After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C., 1973 were recorded. In defence, the statement of Satish Chand was recorded as DW1 and nine documents were got exhibited. 5. Learned trial court after hearing the final arguments of both the parties, acquitted the accused respondents for the charges levelled against them vide impugned judgment dated 25.02.2012. 6. Mrs. Sonia Shandilya, learned Public Prosecutor has argued that the judgment and order dated 25.02.2012 passed by the learned trial court is contrary to law and against the facts on record to the extent of acquittal of accused respondents as such the same is liable to be quashed and set aside. From bare perusal of the statements of prosecution witnesses it is clear the charges leveled against the accused respondents are well proved, hence the accused respondents are liable to be convicted for the charges leveled against them. The case of the prosecution hinges on circumstantial evidence and from the charge leveled against the accused respondents, the alleged offence is well proved. The learned trial court erred in acquitting the accused respondents on the basis of slight contradictions made by the prosecution witnesses. Complainant Phool Chand (PW11) in his statement recorded before the learned trial court affirmed the incident. PW5-Dharam Singh and PW6-Bhagwan Singh in their statements have deposed that accused respondents were last seen with the deceased and the police on joint information of accused-respondents recovered 'Rakaab'. PW18-Sitaram who was Investigating Officer supported the alleged incident, hence the judgment and order passed by the learned trial court is contrary to law and against the facts on record to the extent of acquittal of the accused-respondents as such the same is liable to be quashed and set aside and the accused respondents may kindly be convicted for the charges leveled against them. 7. It is contended that from the bare perusal of the documents which were exhibited by the prosecution, the charges levelled against the accused are well proved. The learned trial court has properly considered the facts and circumstances of the case and properly considered the facts and the material available on record which is clear from the impugned judgment. Without examining the statements of witnesses, the learned trial court acquitted the accused-respondents. The learned trial court has properly considered the facts and circumstances of the case and properly considered the facts and the material available on record which is clear from the impugned judgment. Without examining the statements of witnesses, the learned trial court acquitted the accused-respondents. The impugned judgment shows that the learned trial court took few lines of the statements of prosecution witnesses from here and there and afterwards on superficial grounds acquitted the accused respondents. 8. It is argued that from the impugned judgment it seems that the learned trial court discussed the short comings of the prosecution witnesses and on the basis of that, acquitted the accused respondents. Thus, in these circumstances, acquittal of the accused respondents are illegal and perverse. There is circumstantial evidence also to show that the accused respondents were the person who committed the offence. 9. It is further argued that the learned trial court has adopted wrong procedure in appreciating the evidence of the prosecution witnesses due to which the case of the accused respondents has been properly considered. The learned trial court has properly considered this aspect of the case that the valid procedure as prescribed under the law has been followed by it and thus acquittal of the accused respondents is bad in law. 10. Heard learned the learned Public Prosecutor and perused the impugned judgment and statements of prosecution witnesses and different exhibits, we find that the star witnesses of the prosecution i.e PW1- Samunder Singh, PW2-Rajendra, PW3-Ramavatar, PW4- Mazid Khan, PW7- Laxman Singh, PW13- Siyawati, PW14-Mohanwati and PW17-Mahendra Singh have supported the case of the prosecution and have turned hostile. 11. From the statement of complainant PW11- Phool Singh it is clear that he is the witness of last seen and he lodged the report on saying of other persons. PW5-Dharam Singh, who is brother of deceased Deep Chand in his entire statement has narrated anything about Rajendra that he was present there though as per report of complainant PW11- Phool Singh, PW2-Rajendra and PW5-Dharam Singh (brother of deceased) hired the 'Bugga' of deceased. However, PW6-Bhagwan Singh who is also brother of deceased did say anything about Rajendra Singh that he was present there at the time of hiring the 'Bugga'. Laxman Singh who has been examined as PW7 by the prosecution has deposed that he does know Dharam Singh (PW5) and Deep Chand (deceased). However, PW6-Bhagwan Singh who is also brother of deceased did say anything about Rajendra Singh that he was present there at the time of hiring the 'Bugga'. Laxman Singh who has been examined as PW7 by the prosecution has deposed that he does know Dharam Singh (PW5) and Deep Chand (deceased). Apparently there is a delay of nine days in registering the FIR for which no reasonable and plausible explanation has been given by the prosecution. Thus, on the point of last seen, the evidence of Mazid, Rajendra, Dharam Singh, Bhagwan Singh is trust-worthy that they were knowing the accused respondents prior to the incident. PW2-Rajendra and PW3-Ramavatar who are witnesses of seizure memo (Ex.P2) have supported the case of the prosecution and have turned hostile. Apparently recovery of 'Rakaab' from the possession of accused respondents is itself doubtful because PW16-Nawal Singh who is a Police Constable and witness of recovery had deposed that what was the width, thickness and length of 'Rakaab', he does know and no 'Rakaab' was produced before the Court in his presence. 12. After analyzing the facts on the point of motive, last seen and recovery it appears that there is a gap between the circumstances tried to be relied upon to hold the respondents as guilty. On perusal of statement of PW5- Dharam Singh it is established that accused hired the 'booga'. Further more, there is no other evidence which indicates or establishes that the accused respondents were present near the place of crime. 13. Law is very settled that the prosecution must complete chain of circumstances to arrive at a conclusion that the offence has only been committed by the accused and by none else. 14. In State of Goa v. Sanjay Thakran and Anr.[ (2007) 3 SCC 755 ], wherein their Lordships in paras 31, 32, 33 & 34 of the said judgment 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 J & as under : (SCC p.63, para 31) "31. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J & 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 a long gap and possibility of other persons coming in between exists. In the absence of any other positive (16 of 21) 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 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. 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, (17 of 21) 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 affect the prosecution case". 15. A Division Bench of this Court in the case of Manveer & Anr. v. State of Rajasthan, DB Cr. Appeal No. 823/2006, decided on 13.5.2015, held as under:- "18.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. Appeal No. 823/2006, decided on 13.5.2015, held as under:- "18.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 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. 19. The circumstances, which have been brought against the appellants, cannot lead to a conclusion of guilt and even circumstances have been fully established in the facts and circumstances of the present case. Our view has been fortified by judgment of Hon'ble the Supreme Court in Hanumant Govind (18 of 21) 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 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." 16. The settled position of law is that as in the event of there being two possible views the High Court will re-appreciate evidence and come to its own conclusion on the same when the evidence has already been appreciated by the learned trial court unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. In the case in hand no such glaring feature has been pointed out by the learned PP as discussed above. 17. It is mandatory on the part of the prosecution to establish and prove the criminal culpability beyond reasonable doubt to fasten guilt but the afore-discussed evidence reflects that prosecution has miserably failed to adduce material and reliable evidence against the respondent. Nothing is positive in the evidence of the prosecution to connect the accused with the alleged crime. 18. In the case of Sukliya v. State of Madhya Pradesh reported in (2010) 15 SCC 745, the Hon'ble Apex Court has held as under :- "6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted". 19. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted". 19. In Narendra Singh and Another v. State of M.P., (2004) 10 SCC 699 , the Apex Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had been adhered to by the High Court. Xxx xxx xxx xxx xxx 33. We, thus, having regard to the postmortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." 20. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , wherein this Court observed thus: "Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re appreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." 21. In the aforesaid scenario, we are of the considered view that prosecution has not succeeded in establishing its case beyond contours of reasonable doubt, so we do not find any reason to disturb the findings of the trial court. Therefore, the criminal leave to appeal filed by the State against acquittal is devoid of any merit, hence the same is dismissed.