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2019 DIGILAW 106 (RAJ)

Tulsi Ram @ Suresh v. State of Rajasthan

2019-01-09

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : Vinit Kumar Mathur, J. 1. The instant appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Tulsi Ram @ Suresh against the judgment dated 04.02.2014, passed by learned Sessions Judge, Pratapgarh in Sessions Case No. 22/2010 whereby the accused-appellant stands convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 10,000/- in default of payment of fine to further undergo one year's rigorous imprisonment. 2. Briefly, the prosecution case emanates from a complaint filed by the complainant Madanlal (PW-3) on 24.12.2009 (Ex.P-8) stating therein that his daughter Pushpa Kanwar was married to one Mangu Singh Daroga, R/o Salamgarh. The marriage was solemnized 20 years ago. Mangu Singh Daroga who was employed in Jan Jaati Ashram, Hostel passed away about 10 years ago. Pushpa Kanwar was appointed as a dependent of Mangu Singh Daroga (her husband) on Class-IV post in the same Department. Pushpa Kanwar was staying in Pratapgarh for last 7- 8 years in a rented house. He received some information in the morning that Pushpa Kanwar had been murdered in her rented house. On receiving this information, he went to the spot at the house situated in Rajendra Nagar, Pratapgarh where his daughter was murdered and her dead body was lying in a pool of blood having grievous injury on her head. A big piece of stone was also lying near the dead body. Some unknown person had murdered his daughter. 3. On the aforesaid complaint, an FIR bearing No. 413/2009 was registered for the offence under Section 302 IPC at the Police Station Pratapgarh. 4. After completion of investigation, police filed a charge-sheet for the offence under Section 302 IPC against the accused-appellant Tulsi Ram @ Suresh. 5. Learned Trial Court framed, read over and explained the charge for the offence under Section 302 IPC to the accused-appellant who denied it and sought trial. 6. During the trial, the prosecution examined as many as 30 witnesses and 53 documents were exhibited. 7. The accused-appellant was examined 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 character of deceased Pushpa Kanwar was not good and she had illicit relations with a number of persons. He is innocent and has been falsely implicated in the present case. 8. 7. The accused-appellant was examined 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 character of deceased Pushpa Kanwar was not good and she had illicit relations with a number of persons. He is innocent and has been falsely implicated in the present case. 8. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellant vide judgment dated 04.02.2014. Hence this appeal. 9. We have heard learned counsel for the appellant and the learned Public Prosecutor. 10. Learned counsel for the appellant vehemently argued that the present case is of circumstantial evidence and there is no direct evidence against the accused-appellant connecting him with commission of alleged offence. He submitted that in none of the prosecution witnesses statements, the present appellant has been attributed with any act of committing murder of the deceased Pushpa Kanwar but the learned trial Court acting merely on the surmises and conjunctures, convicted the present appellant for the offence alleged. He further submitted that the evidence of last seen (PW-10 Mukesh and PW-28 Man Singh), relied upon by the learned trial Court, is totally unreliable and unworthy of credence and does not connect the appellant with the crime in question in any manner. He further submitted that even the so called recovery of the key and the blood stained clothes are not worth reliable as the recovery of the key has been made from an open place and after a delay of about 20 days. The blood stained clothes have also been recovered from the house after more than 20 days. It is of common knowledge and prudence that if a person has committed murder and blood stains are present on his clothes, he will not preserve the same for 20 days in his house so as to create evidence against himself. In nutshell, the learned counsel submitted that the recoveries are wholly unreliable and the same are liable to be discarded. He further submitted that the seized articles were also not transmitted to the Forensic Science Laboratory in a proper sealed manner. Therefore, the reliability of the FSL report regarding the articles sent to Forensic Science Laboratory is seriously under doubt. 11. He further submitted that the seized articles were also not transmitted to the Forensic Science Laboratory in a proper sealed manner. Therefore, the reliability of the FSL report regarding the articles sent to Forensic Science Laboratory is seriously under doubt. 11. It is therefore submitted by learned counsel for the appellant that by taking into consideration the submissions and the statements of prosecution witnesses, the learned trial Court was not justified in convicting the accused-appellant for the offence under Section 302 IPC. Therefore, he submits that the appeal of the accused-appellant merits acceptance in the facts and circumstance of the present case. 12. On the other hand, learned Public Prosecutor opposed the submissions advanced by learned counsel for the appellant. While supporting the judgment of conviction passed by learned trial Court, he submitted that there is ample evidence on record which clearly shows that it was only the appellant Tulsi Ram and none else who committed murder of deceased Pushpa Kanwar. He further submitted that in the statement of PW-3 Madanlal, it has come on record that after the death of Mangu Singh, the husband of deceased Pushpa Kanwar, she was staying with the accused Tulsi Ram and as Man Singh was regularly visiting Pushpa, the same was not liked by the accused-appellant and there were often heated altercations on this issue between Pushpa Kanwar and the present appellant. He further submitted that as per the prosecution story, the appellant was last seen in the company of deceased before her death and, therefore, there is no reason to disbelieve the fact that it was none other than the appellant who murdered Pushpa. 13. He further submitted that the recovery of blood stained clothes on the information supplied by accused-appellant under Section 27 of the Evidence Act and the recovery of the key of the house conclusively show that it was the appellant alone and none else who has committed murder of Smt. Pushpa Kanwar. Thus, the prosecution had been able to prove the allegations against the accused-appellant beyond all reasonable doubts. 14. He submitted that in these circumstances the learned trial Court was perfectly justified in convicting the accused-appellant vide judgment dated 04.02.2014 and the same does not warrant interference by this Court. 15. We have considered the submissions made at bar and have minutely gone through the evidence on record. 16. 14. He submitted that in these circumstances the learned trial Court was perfectly justified in convicting the accused-appellant vide judgment dated 04.02.2014 and the same does not warrant interference by this Court. 15. We have considered the submissions made at bar and have minutely gone through the evidence on record. 16. From the evidence of witness PW-8 Gopal, it has been established beyond all manner of doubt that Pushpa Kanwar was staying in the rented accommodation at Pratapgarh and she was being visited by the appellant Tulsi Ram as well as Man Singh. It has also come on record that Pushpa Kanwar was serving as a Class-IV employee at Pratapgarh and as she was appointed as a dependent of her deceased husband. As per PW-3 Madanlal, the father of the deceased, she had one son namely Ishwar Singh, aged about 10-12 years and one daughter namely Payal aged about 8-10 years, both the kids were staying with him and Pushpa was staying alone at Pratapgarh in a rented accommodation. She was being visited regularly by the appellant Tulsi Ram who sometimes portrayed himself as her husband. He further stated that she was often assaulted by the accused-appellant Tulsi Ram as he did not like Man Singh having any relation with Pushpa and they were often indulged in fighting with each other at Pushpa's residence. On 24.12.2009 when he received information that his daughter Pushpa Kanwar had been murdered, he went to the spot and saw that Pushpa Kanwar was lying in the room in a pool of blood. A stone was also lying near the dead body. He suspected that Tulsi Ram had murdered his daughter as he was regularly assaulting his daughter in the past. 17. PW-8 Gopal who is an employee of Naagadi Ashram, Hostel stated in his statement that he knew Pushpa who was also an employee in the Hostel and while Pushpa was staying in a room made for Chokidar, she was being visited by Man Singh and Tulsi Ram. 18. PW-10 Mukesh has stated that he was a conductor in the Bus. On 20.12.2009, he saw Tulsi Ram and one fair complexioned fat woman travelling in the Bus. Both of them got down in Nakoda Nagar, Pratapgarh. He further stated that on being asked by him, Tulsi Ram replied that the lady is his wife. 19. PW-13 Dr. 18. PW-10 Mukesh has stated that he was a conductor in the Bus. On 20.12.2009, he saw Tulsi Ram and one fair complexioned fat woman travelling in the Bus. Both of them got down in Nakoda Nagar, Pratapgarh. He further stated that on being asked by him, Tulsi Ram replied that the lady is his wife. 19. PW-13 Dr. O.P. Dayma while working as Medical Jurist, District Hospital, Pratapgarh conducted the autopsy of deceased Pushpa Kanwar. He stated that the cause of death of deceased was Coma due to head injury caused in the unconscious state of deceased. 20. Ex.P-12 is the postmortem report as per which the cause of death is Coma due to head injury. 21. PW-24 Surendra Singh Khangarot while working as SHO, P.S. Pratapgarh conducted the investigation in the present case. He testified that on receiving information he went to the spot and got the lock broke open. He carried out investigation in the matter, recorded the statements of the witnesses, prepared the memos and after completion of investigation as per the rules, submitted charge-sheet against the accused-appellant Tulsi Ram @ Suresh. 22. PW-28 Man Singh who is the driver in M/s. Shivam Bus stated in his statement that he knew the deceased Pushpa Madam and he developed friendship with her as she was regularly travelling in his bus and used to sit next to the driver seat. He stated that she was forcing him to visit her place and he was doing this under compulsion. He stated that Pushpa called him and said that Tulsi Ram is threatening to kill her and often asked her that why she moves all around with other persons. He further stated that he saw Pushpa and Tulsi Ram at her house a day prior to the incident. 23. We note that since Pushpa was staying alone at her house and while working at Pratapgarh, she developed friendship with appellant Tulsi Ram and other persons. A close reading of evidence on record shows that except the evidence of last seen i.e. of PW-10 Mukesh and PW-28 Man Singh who gave a semblance of evidence of last seen, there is no material whatsoever which could even remotely connect the appellant with the alleged offence. A close reading of evidence on record shows that except the evidence of last seen i.e. of PW-10 Mukesh and PW-28 Man Singh who gave a semblance of evidence of last seen, there is no material whatsoever which could even remotely connect the appellant with the alleged offence. Even the statements of PW-10 and PW-28 are not of sterling worth and wholly reliable as in these statements very casually and generally, they have made a mention that a day earlier to the date of incident, they had seen appellant and the deceased in the company of each other. There is no evidence on record which shows or suggests that soon before the incident, the appellant was seen in the company of deceased. It gains significance in the facts and circumstances of the present case as it is a fact that the appellant used to visit the deceased very frequently and besides him there were other persons including PW-28 Man Singh who were regular visitors to the house of Pushpa. Therefore, evidence of witnesses PW-10 Mukesh and PW-28 Man Singh is not sufficient to establish that the appellant was last seen in the company of the deceased any time soon before her death. 24. In the case of Anjan Kumar Sarma and Others vs. State of Assam, (2017) AIR SC 2617, the Hon'ble Supreme Court held in Para 18, 21 & 22 as under:- "18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 , this Court held that: 12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the Accused who committed the crime. There must he something more establishing connectivity between the Accused and the crime. Mere non-explanation on the part of the Appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the Appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. 15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the Appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the Accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan, (2010) 15 SCC 588. In Arjun Marik vs. State of Bihar, (1994) Supp 2 SCC 372 this Court held that: 31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19.7.1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the Accused and, therefore, no conviction on that basis alone can be founded. 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under: 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 he 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 (sic of) a considerable long duration. There can be no fixed or straitjacket 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 of 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, the proof of last seen together would be relevant evidence. 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, 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 not affect the prosecution case. As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case. 22. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the Appellants of the charges of Section 302, 201 read with 34 Indian Penal Code. The Appellants are directed to be set at liberty forthwith, if not required in any other case." 25. The recovery of key of the lock of Pushpa's house and the blood stained clothes of the accused are not at all reliable for the reason that there is nothing on record to show that the key which was recovered from the accused was of the same lock which was broken open by the Investigating Officer PW-24 Surendra Singh Khangarot and much less recovery of the key after a period of 20 days from the open space, on the face of it, is wholly unreliable because it does not stand to reason and is contrary to normal human behaviour that a person having committed murder would hide the key near the house, after locking the room from outside wherein a dead body is lying. Such a conduct is highly improbable. In these circumstances, the recovery of key is liable to be discarded. 26. Such a conduct is highly improbable. In these circumstances, the recovery of key is liable to be discarded. 26. So far as the recovery of blood stained clothes from the house of the accused-appellant is concerned, the same is also not worth reliable because it is highly questionable that the accused would hide and preserve the blood stained clothes in safe custody for more than 20 days so that the same could be used as evidence against him. The same also appears to be highly improbable. 27. We are gainfully supported by the observations of the Hon'ble Supreme Court in the case of Chandran vs. State of Tamil Nadu, (1978) AIR SC 1574 wherein the Hon'ble Supreme Court has held as under: "35. As regards Circumstance 10, the prosecution case was that after making the confessional statement (Ex.P-10) to the Police Inspector (PW-34). A-1 led the police party into the house and produced therefrom the blood-stained sari (M.O.1), a kaili (M.O.2) belonging to the deceased and the towel (M.O.23) belonging to the appellant. These articles were seized by PW-34 under the Mahazar (Ex.P-14) in the presence of PW-21. 36. Mr. Atlaf Ahmad contends that there was reason to suspect that the story of the recovery of these blood-stained clothes of the deceased at the instance of the appellant was a fabrication because firstly, these clothes were found on the dead body of the deceased on January 7, 1974 and secondly, the appellant was not a lunatic to keep these useless incriminating articles in his house for 23 days after the murder. 37. We find merit in this contention. In the first place, it is in the evidence of Sundarambal (PW-2), that when she along with others went to see the dead body of the deceased at the scene of occurrence, the sari and the jacket were on the dead body. Secondly, neither in the statement (Ex.P.10), nor in the Mahazar (Ex.P.14) is there any mention that these clothes were found blood-stained. Thirdly, there is a discrepancy between the Statement (Ex.P.10) and the Mahazar (Ex.P.14), inasmuch as the former speaks of the Sari of the deceased in addition to the Kaili of the deceased, and the towel, but in the Mahazar there is no mention of the Sari, but only of the Kaili of the deceased. Thirdly, there is a discrepancy between the Statement (Ex.P.10) and the Mahazar (Ex.P.14), inasmuch as the former speaks of the Sari of the deceased in addition to the Kaili of the deceased, and the towel, but in the Mahazar there is no mention of the Sari, but only of the Kaili of the deceased. Fourthly, it does not stand to reason that the appellant would preserve and keep these worthless incriminating articles in his house for 23 days after the murder." 28. Besides these, we also note that the samples which were taken to the Forensic Science Laboratory were not properly sealed as it has come in the statements of PW-22 Sajjan Singh and PW-23 Kalu Ram. There were certain discrepancies in the handing over and taking over the articles which were sent to Forensic Science Laboratory for examination. 29. Except the evidence discussed above, there is no other evidence which is convincing enough so as to connect the present appellant with the commission of the alleged offence of murder of Pushpa Kanwar. The chain of circumstances is not so complete which indicts that none other than the appellant could have committed murder of Pushpa Kanwar. 30. 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." 31. 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. 32. 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. 32. In our opinion the prosecution has miserably failed to prove the case beyond all reasonable doubts as the distance between "may be true" and "must be true" has not been travelled successfully by the prosecution as held by the Hon'ble Supreme Court in the case of Sarwan Singh vs. State of Punjab, (1957) AIR SC 637 which is as under: "In his cross-examination Dr. Singh admitted that injury No. I could have been caused by razor blade as suggested by the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been caused by rubbing against some hard substance. In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue. Then we have the evidence of blood-stains on the shirt and chadar worn by Sarwan Singh. If the explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood-stains on his dress cannot be seriously pressed against him. The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt may suggest that Sarwan Singh was associated with the criminals but that is very far from proving the charge of murder against him. Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand why it was not used. Then we have the evidence of the shoes which were found on the spot. The evidence of the shoe-maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh that very night. According to him, he has been manufacturing shoes like this pair though not on a large scale Unfortunately, in his examination under S. 342 of the Code, no question had been put to Sarwan Singh about these shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. According to him, he has been manufacturing shoes like this pair though not on a large scale Unfortunately, in his examination under S. 342 of the Code, no question had been put to Sarwan Singh about these shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him under S. 342 justifies his argument that this circumstance should not be used against him. Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan Singh is being tried. The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true. In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged. Appeals allowed." 33. In view of the discussion made above, the present appeal is allowed. In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged. Appeals allowed." 33. In view of the discussion made above, the present appeal is allowed. The judgment dated 04.02.2014, passed by learned Sessions Judge, Pratapgarh is quashed and set aside. The appellant Tulsi Ram @ Suresh is acquitted of the charge for the offence under Section 302 IPC. He shall be released from the judicial custody forthwith if not required in any other case.