Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 122 (RAJ)

Sukh Lal v. State of Rajasthan

2019-01-09

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present criminal appeal under section 374(2) of Cr.P.C., 1973 has been preferred by the accused-appellant against the judgment and order of conviction dated 14.02.2018 passed by the learned Additional Sessions Judge, Sagwara, District Dungarpur in Sessions Case No. 20/2015 whereby the accused-appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo two years' additional rigorous imprisonment. 2. The prosecution case emerges from the complaint (Ex.P/1) filed by one Vaja (P.W. 1) on 03.03.2015 at around 10.00 A.M. stating therein that his daughter Lalita was married for last 15-20 years with Subhash. From the said wedlock, a son named Rahul was born. Subhash left his daughter Lalita 15 years back and thereafter, she along with her son Rahul was living with him in Aadiwat. His daughter was a daily wage labour and was staying in his house. On 02.03.2015 at around 9.00 - 10.00 P.M., she prepared her bed and slept along with her son Rahul. He was sleeping on the cot next to them. Sometime late in the night, his daughter left the house without informing them and in the morning at around 7.00 A.M., the people of the nearby vicinity informed that the dead body of Lalita was lying in the field of Kalu. On getting this information, he along with Rahul went to the field and saw that his daughter was lying in a pool of blood with injuries caused by stone on her head. They also saw the marks of dragging in the field. She was murdered by some unknown persons last night and her dead body was thrown in the field. There were other injury marks on the body of Lalita. 3. On this information, a formal F.I.R. No. 49/2015 was registered at Police Station Sagwara, District Dungarpur for the offence under Section 302 of I.P.C. 4. After conclusion of investigation, the police filed charge-sheet against the accused-appellant for the offence under Section 302 of I.P.C. 5. Learned trial court framed, read over and explained the charge for the offence under Section 302 of I.P.C. to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 13 witnesses and Ex.P/1 to Ex.P/20 documents were exhibited. 7. Learned trial court framed, read over and explained the charge for the offence under Section 302 of I.P.C. to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 13 witnesses and Ex.P/1 to Ex.P/20 documents were exhibited. 7. The accused-appellant was examined under section 313 of Cr.P.C., 1973 and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was innocent and was falsely implicated in the present case. However, the accused-appellant did not wish to lead any oral evidence but exhibited Ex.D/1 to Ex.D/3 documents in the defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 14.02.2018. Hence this appeal. 9. We have heard learned counsel for the appellant and the learned Public Prosecutor. 10. Learned counsel for the accused-appellant vehemently submitted that present is a case of circumstantial evidence and the prosecution miserably failed to prove the offence alleged against the accused-appellant beyond reasonable doubt. 11. Learned counsel further submits that Harish whose statement was recorded by the investigation officer during the course of the investigation was a witness of last seen evidence but during the course of trial, he was not produced by the prosecution in the witness box. Therefore, there was no evidence of the last seen available on record which shows that the deceased was seen alive in the company of the accused-appellant when lastly seen. 12. He further submits that the recovery of jeans (pent) (Ex.P/11) having bloodstains was wholly unreliable as the prosecution failed to prove that the bloodstains on the jeans (pent) were of the deceased because the blood sample of the accused-appellant was not taken despite the fact that the accused-appellant was also injured and having injuries on his body and therefore, the possibility of his own blood on the jeans (pent) cannot be ruled out. In any case, in the set of present facts, those bloodstains cannot be presumed to be of the deceased. 13. In any case, in the set of present facts, those bloodstains cannot be presumed to be of the deceased. 13. He further submits that the recovery in the present case was highly doubtful in view of the fact that the accused-appellant was arrested vide Arrest Memo dated 04.03.2015 (Ann-x.P/13) and thereafter the accused-appellant gave information under section 27 of the Indian Evidence Act regarding the recovery of the pent (Ex.P/24) on 05.03.2015, in pursuance to which, the same was recovered on 05.03.2015 itself. The recovery memos were prepared in the presence of independent witnesses, namely, P.W. 2 - Poonam Chand and P.W. 5 - Nana. P.W. 2 - Poonam Chand in his statement stated that pent was recovered on the next day of the incident and the same was given by Smt. Kali Bai, mother of the accused-appellant. He further stated that the accused-appellant was arrested at about 7.00 - 8.00 P.M. on the same day i.e. 03.03.2015 and the pent was recovered on the next day i.e. 04.03.2015. He further submits that P.W. 5 - Nana in his cross-examination stated that all the recovery memos were prepared at the place of incident and were signed by him on 03.03.2015. The fact of the accused-appellant having been arrested is also mentioned in the charge-sheet, according to which, he was arrested on 03.03.2015. 14. He further submits that in view of the above statements, it appears that the recovery was planted, the date of arrest of the accused-appellant was manipulated making them wholly unreliable and without any credibility. 15. He further submits that the prosecution failed to prove the motive on the part of the accused-appellant in the commission of the present crime as there was no dispute between the accused-appellant and the deceased. 16. Learned counsel on the strength of these arguments submits that there are material contradictions, omissions and improvements in the statements of the prosecution witnesses and that the prosecution could not prove beyond reasonable doubt that present appellant is guilty of the alleged offences and therefore, the trial court committed grave factual and legal error while convicting the appellant for the alleged offence. 17. 17. Per contra, learned public prosecutor has vehemently submitted that the prosecution on the strength of the witnesses produced before the learned trial court proved beyond all reasonable doubt the offence alleged against the accused-appellant and the statements of the witnesses are corroborated by the medical evidence i.e. statement of P.W. 9 - Dr. Raja Mukherjee, P.W. 10 - Dr. Sefuddeen and the postmortem report (Ex.P/19) wherein the cause of death of the deceased was shown as Coma due to head injury. The injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature as all the injuries were ante mortem in nature. He further submits that the F.S.L. Report (Ex.P/27) shows the presence of the blood of human origin on the articles including the jeans (pent) of the accused-appellant recovered on the information given by him under section 27 of the Indian Evidence Act. On the strength of the submissions made above, he submits that the learned trial court was fully justified in convicting the accused-appellant for the offence under Section 302 of I.P.C. vide Judgment dated 14.02.2018. 18. We have considered the submissions made at the bar and have closely gone through the record of the trial court. P.W. 1 - Vaja, who is the first informant in the present case, stated that on 02.03.2015, Sukhlal assaulted his daughter Lalita by stone and due to the injuries inflicted, she died. He submitted the report to the police under his signature, which is Ex.P/1. P.W. 2 - Poonam Chand stated that he was called on the place where the dead body of the deceased Lalita was lying who was assaulted by stones. He affixed his signatures on the memos prepared by the police during the course of investigation. P.W. 5 - Nana stated that on hearing hue and cry, he reached the place of incident where the police was present. He affixed his signatures on the memos prepared by the police. P.W. 9 - Dr. Raja Mukherjee and P.W. 10 - Dr. Sefudeen were members of the board which conducted the postmortem of the deceased. They gave the descriptions of the injuries on the body of the deceased in their statements and stated the reason for death of the deceased as head injury resulting into Coma and excessive bleeding. P.W. 9 - Dr. Raja Mukherjee and P.W. 10 - Dr. Sefudeen were members of the board which conducted the postmortem of the deceased. They gave the descriptions of the injuries on the body of the deceased in their statements and stated the reason for death of the deceased as head injury resulting into Coma and excessive bleeding. P.W. 11 - Manish Charan is the investigation Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples and after conducting the investigation, as prescribed in law, submitted his report before the court of competent jurisdiction. 19. It is a fact that there was no eye-witness in the present case. The case is purely of circumstantial evidence. Therefore, the prosecution was required to prove its case against the accused-appellant beyond all manner of doubt and by leading cogent evidence to form a chain of circumstances indicating that it was none other than accused-appellant who was involved in the commission of the offence alleged in the present case. A close examination of the prosecution witnesses makes us to believe that P.W. 1 - Vaja and P.W. 8 - Rahul (son of the deceased), who were sleeping with the deceased has stated that the deceased went out of the house without informing them. These two witnesses also did not throw any light that where the deceased had gone and with whom. No ocular evidence supporting the case of the prosecution is available on record to show that it was the present appellant who committed the offence alleged in this case. 20. The recovery of the bloodstained jeans (pent) of the accused-appellant is also of no relevance as it has come on record that the accused-appellant was also injured and in the absence of the fact that what was the blood group of the accused-appellant, it cannot be conclusively proved that the bloodstains on the jeans recovered were of the deceased. In fact, the recovery of the jeans does not inspire confidence for acceptance as it has come on record that the accused-appellant was arrested on 03.03.2015 itself which is evident from the statement of P.W. 2 - Poonam Chand as well as charge-sheet submitted by the investigation officer before the trial court. In fact, the recovery of the jeans does not inspire confidence for acceptance as it has come on record that the accused-appellant was arrested on 03.03.2015 itself which is evident from the statement of P.W. 2 - Poonam Chand as well as charge-sheet submitted by the investigation officer before the trial court. When the accused-appellant was arrested on 03.03.2015 itself, the recovery of jeans on the information given by him under Section27 of the Evidence Act on 05.03.2015 creates doubt in the prosecution story in the facts of the present case. Therefore, the recovery of the jeans is required to be discarded. 21. On the same lines, we find that when the accused-appellant was arrested on 03.03.2015, as to why the memo of arrest was prepared on 04.03.2015. The same also creates suspicion in the preparation of the memos by the investigation agency during the course of investigation, wherein the dates have been mentioned differently and the same are not getting corroborated with the statements of P.W. 2 - Poonam Chand and P.W. 5 - Nana. In these circumstances, the possibility that the preparation of different memos and recovery of the articles was planted to falsely implicate the accused-appellant cannot be ruled out. 22. We also note that the hairs of the accused-appellant were recovered from the hands of the deceased Lalita which were sent for F.S.L. But the report of the F.S.L. (Ex.P/29) stated that no definite opinion could be drawn regarding the comparison of hairs of exhibit sent. 23. In view of the analysis made above, we find that the prosecution was not able to prove the allegations leveled against the accused-appellant beyond all reasonable doubt. For sustaining the conviction against a person, the allegations must be proved as the distance between 'must be proved' and 'may be proved' is inevitably a long distance to travel and the same is required to be covered by legal, reliable and unimpeachable evidence as held by the Hon'ble Supreme Court in the case of Sarwan Singh vs. The State of Punjab reported in AIR 1957 SC 637 . The relevant Para 12 of the judgment is reproduced 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. The relevant Para 12 of the judgment is reproduced 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 bloodstains 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 bloodstains 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 Section 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 Section 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. 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." 24. The same view was reiterated by the Hon'ble Supreme Court in the case of Navaneethakrishnan v. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018 25. Thus, in view of whatever stated above, the judgment dated 14.02.2018 passed by the trial court is not sustainable and deserves to be quashed and set aside. 26. Resultantly, the appeal is allowed. The impugned judgment dated 14.02.2018 passed by the learned Additional Sessions Judge, Sagwara, District Dungarpur in Sessions Case No. 20/2015 is hereby quashed and set aside. The appellant is acquitted of the charge for the offence under Section 302 of I.P.C. The accused-appellant is in judicial custody. He shall be released from prison forthwith if not wanted in any other case.