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2019 DIGILAW 160 (RAJ)

Kana Ram v. State of Rajasthan

2019-01-11

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 19.02.2013 passed by the learned Additional Sessions Judge No. 4, Jodhpur Metropolitan in Sessions Case No. 22/2012 whereby the accused-appellant has been convicted and sentenced as under :- Offence Sentence U/s 302 IPC Life Imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo 03 months' additional S.I. U/s 201 IPC 07 years' R.I. with fine of Rs. 1,000/-, in default of payment of fine to further undergo 03 months' additional S.I. U/s 380 IPC 07 years' R.I. with fine of Rs. 1,000/-, in default of payment of fine to further undergo 03 months' additional S.I. 2. The brief facts of the case are that one Shivji (P.W. 11) filed a complaint (Ex.P/17) before the S.H.O. Police Station Soorsagar, District Jodhpur on 16.04.2010 stating therein that he is resident of Siwanchi Gate, Jodhpur. His brother Bhanwar Lal alias Gajanand alias Dhalji was Pujari in the Bhim Bhadak temple of their community trust for last 07 years, who met his son Dinesh in the morning at around 10.00 A.M. and after the exchange of pleasantries, he told that he was going for his work. His brother was not a regular visitor to their house except the occasions of death etc. His brother was performing Puja in the temple of the trust. The devotees were regularly visiting the temple and used to feed the monkeys there and were giving offerings in the temple as well. Today at around 7.30 - 7.45 A.M., his cousin brother Pradeep (P.W. 6) who was staying in his neighbourhood informed him that Bhanwar Lal alias Dhalji alias Gajanand Maharaj had been killed in the temple. On getting this information, he, along with his son Dinesh and Ambalal, the younger brother of Pradeep, namely, Ambalal went to the temple at Bhim Bhadak at around 8.00 - 8.15 A.M. When they reached the temple, they saw the dead body of his brother lying in a pool of blood having number of injuries on his body with his face tied by a cloth near the staircase in the courtyard of the temple. The injuries were inflicted by lathi and sharp edged weapon. The injuries were inflicted by lathi and sharp edged weapon. His brother had only underwear and Baniyan on his body, whereas, he used to wear saffron colour Chola and Lungi. His brother was killed on the intervening night of 15/16.04.2010 by some unknown persons. He did not know whether his brother was having any enmity with anybody and who killed his brother and for what reasons. 3. On this information, a formal F.I.R. No. 63/2010 was registered at Police Station Soorsagar, District Jodhpur for the offence under Section 302 of I.P.C. During the course of investigation, the police added Sections 201 & 380 of I.P.C. in the matter. A finger of suspicion was pointed towards the accused-appellant who was arrested on 18.04.2010 and certain recoveries were made at his instance. 4. After conclusion of investigation, the police filed charge-sheet against the accused-appellant for the offences under Sections 302, 201 & 380 of I.P.C. 5. Learned trial court framed, read over and explained the charges for the offences under Sections 302, 201 & 380 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 22 witnesses and Ex.P/1 to Ex.P/46A documents as well as 12 articles 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 neither went to the temple at Bhim Bhadak nor was he having any relationship with the Priest (Poojari). The police arrested him from his village in the presence of his brother and villagers, namely, Tarachand, Bhinyaram, Achalaram, Chhotuji, Ramuji, Durgaram and Lumbaram. Since he was wrongly arrested, therefore, Lumbaram etc. submitted a complaint to the Inspector General of Police. But the police had recorded the cooked up statements of the witnesses so as to implicate him and therefore, the Station House Officer did not act upon their application. He was innocent. 8. The accused-appellant got examined 02 witnesses and exhibited 02 documents in his defence. 9. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 19.02.2013. Hence this appeal. 10. We have heard learned counsel for the appellant and the learned Public Prosecutor. 11. He was innocent. 8. The accused-appellant got examined 02 witnesses and exhibited 02 documents in his defence. 9. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 19.02.2013. Hence this appeal. 10. We have heard learned counsel for the appellant and the learned Public Prosecutor. 11. Learned counsel for the accused-appellant has vehemently submitted that in the present case, there was no eye-witness to the incident and this being a case of circumstantial evidence, the prosecution miserably failed to prove the complete chain of circumstances in such a fashion which could lead to the only conclusion that it was none other than the accused-appellant who committed the offence alleged in the present case. 12. He further submits that in the testimony of none of the prosecution witnesses, the accused-appellant was shown remotely connected with the commission of the offence alleged in the present case. 13. He further submits that the complaint (Ex.P/17) which was registered in the morning on 16.04.2010 was lodged against unknown assailant and there was no allegation of theft or looting therein but the same was supplemented by a report (Ex.P/16) in the evening at 10.15 P.M. on 16.04.2010 by P.W. 10 - Shyam Lal Bhati wherein he stated that one DVD Player of AUDIO Line Company, one black coloured handbag, on which Bhim Bhadak was written and which was carried by Babaji in his hands and on which mobile number of Babaji 93147 - 22369 was mentioned, one black coloured bag containing CDs and black coloured shoes of Babaji were missing. He urged that this planned second report which shows that in the present case, the incident was given the colour of murder for gain. 14. He further submits that although, the accused-appellant was arrested on 18.04.2010 vide Ex.P/9 but no time was mentioned in some of the recovery memos which shows that the investigation agency was trying to fix the accused-appellant by using unfair means. 15. He further submits that there was overwriting in the date of Ex.P/8 which is the recovery memo of clothes of the accused-appellant and the date was originally appearing to be 16.04.2010 but the same was scored out and changed to 18.04.2010, precisely for the reason that when the accused-appellant was arrested on 18.04.2010, the recovery of the clothes of the accused-appellant could not be effected on 16.04.2010. 16. He further submits that the witness of the recovery P.W. 7 - Asharam stated that the memos were signed by him at the Police Station on 18.04.2010. Hence, the recovery of bloodstained clothes on the face of it became unreliable. He further submits that the recovery of the articles i.e. one printed bed sheet, pair of shoes, black colour handbag of rexine, one plastic bag containing CDs, one DVD Player vide Ex.P/13 was made in the presence of P.W. 10 - Shyam Lal Bhati who identified the articles at the spot as he accompanied the police during the recovery proceedings and thus, as per Shri Bishnoi, the recoveries were planted at the instance of this witness and the coincidental matching of the total recovered articles with the supplementary report (Ex.P/16) clearly establishes that the recoveries were falsely made so as to falsely implicate the accused-appellant. 17. He further submits that there was no motive for committing the murder of the deceased by the accused-appellant in the present case. 18. 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. 19. Per contra, learned public prosecutor has submitted that the prosecution had been able to prove the commission of the offence alleged against the accused-appellant in the present case beyond all reasonable doubt on the strength of the testimony of the prosecution witnesses examined before the trial court. He further submits that the recovery of the looted articles from the accused-appellant on the information given by him under section 27 of the Indian Evidence Act goes to show that he was involved in the commission of the offence alleged in the present case. He further submits that it has come on record in the statement of P.W. 10 - Shyam Lal Bhati that the accused-appellant was frequently visiting the temple and had heated altercations on one or two occasions with the deceased Mahatmaji. He further submits that it has come on record in the statement of P.W. 10 - Shyam Lal Bhati that the accused-appellant was frequently visiting the temple and had heated altercations on one or two occasions with the deceased Mahatmaji. He further submits that the recovery of the bloodstained clothes and weapon of offence having bloodstains of 'B' blood group as reported in Ex.P/27 - F.S.L. Report brings home the offence alleged against the accused-appellant having been proved by the prosecution in the present case by leading evidence constituting a complete chain of incriminating circumstances. He further submits that the testimony of the prosecution witnesses which has come on record was well corroborated by the medical evidence as P.W. 17 - Dr. P.C. Vyas explained the injuries on the body of the deceased and the cause of death having been shown in the postmortem (Ex.P/22) as 'Head injury sufficient to cause death in the ordinary course of nature' completes the chain of circumstances in the present case clearly establishes that the accused-appellant was the assailant who committed the murder of the deceased Bhanwar Lal alias Gajanand alias Dhalji and therefore, the learned trial court was absolutely right in convicting the accused-appellant for the offences alleged in the present case vide Judgment dated 19.02.2013. 20. We have considered the submissions made at the bar and have closely gone through the record of the trial court as well as judgment dated 19.02.2013 impugned herein. 21. The fact that the present case is based on the circumstantial evidence is clear from the testimony of the prosecution witnesses who deposed before the trial court that on reaching the spot i.e. temple at Bhim Bhadak, they saw the dead body of the deceased Bhanwar Lal alias Gajanand alias Dhalji lying in a pool of blood. There was no eyewitnesses to the incident and therefore, the basic principle in the case of circumstantial evidence is to see the fact that the chain of circumstances is so complete which leads to the only conclusion indicating that the accused-appellant was the only person who was involved in the commission of the offences alleged in the present case and none else. 22. 22. In our view, the fact that P.W. 10 - Shyam Lal Bhati who was one of the trustees did not submit any report about the missing articles in the morning or immediately thereafter when the complaint was lodged by P.W. 11 - Shivji and gave another report for the same in the evening at 10.15 P.M. on 16.04.2010 creates serious doubt in our mind as these very articles as recovered by the police in the presence of P.W. 10 - Shyam Lal Bhati and not only this, the same were identified by him might have been planted at his instance. Besides, no identification parade of articles recovered vide Ex.P/13 was conducted. Significantly enough, the articles were not produced when P.W. 10 Shyam Lal Bhati stepped in the witness box and got identified in the court making recovery of these articles as worthless and of no credence to the prosecution in the present case. The recovery of these articles, thus, cannot constitute substantive evidence as the same were not identified by any witness during trial as the articles allegedly looted from the temple. The possibility of planting the recovery of said articles also gain significance as originally they were not described or mentioned in the complaint registered in the morning but the same were supplemented by a complaint submitted at 10.15 P.M. on 16.04.2010 and therefore, the same does not inspire confidence. 23. The absence of time on some of the recovery memos is not that significant but the overwriting on Ex.P/8 creates doubt coupled with the fact that the independent witnesses of the recovery of bloodstained clothes of the accused-appellant i.e. P.W. 7 - Asharam stated that the memos were signed by him at the police station which makes the recovery of bloodstained clothes wholly unreliable and therefore, the same is liable to be discarded. 24. 24. As far as the motive for committing the murder in the present case is concerned, it was stated by P.W. 10 - Shyam Lal Bhati that the accused-appellant was visiting the temple quite often and on one or two occasions, he had heated altercations with the Mahatmaji and for this reason, getting annoyed of the same, he was keeping a grudge against him and just in order to settle the scores, the accused-appellant murdered the deceased Bhanwar Lal alias Gajanand alias Dhalji which is not worthy of credence and is also not worth reliance as the same is not getting supported from any other testimony and other evidence on record. 25. We also note that if it is a murder for gain by a person who was regularly visiting the temple then, the articles which were stolen i.e. one printed bed sheet, pair of shoes, black colour handbag of rexine, one plastic bag containing CDs, one DVD Player are of such nature that the same cannot benefit him monitorily nor they can be valued as articles of worth. Conversely, if we think if it is a murder without any intention for loot then, why a person will take away the worthless articles as mentioned above. Either side, the story of the prosecution does not inspire confidence. On the minute appreciation of the entire material on record, we are of the view that the prosecution failed to complete the chain of circumstances in the present case in such a fashion which indicates that it was none other than the accused-appellant who committed the offence alleged in the present case. 26. The Hon'ble Supreme Court in the case of Sonu @ Amar vs. State of Haryana reported in AIR 2017 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. 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." 27. Keeping in mind the above principles, we are of the view that the evidence against the present appellant is not sufficient to hold him guilty of the offence under Section 302 IPC in the present case. 28. 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. 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. 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. 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. 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." 29. 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. 30. Thus, in view of whatever stated above, the judgment dated 19.02.2013 passed by the trial court is not sustainable and deserves to be quashed and set aside. 31. Resultantly, the appeal is allowed. The impugned judgment dated 19.02.2013 passed by the learned Additional Sessions Judge No. 4, Jodhpur Metropolitan in Sessions Case No. 22/2012 is hereby quashed and set aside. The appellant is acquitted of the charges for the offences under Sections 302, 201 & 380 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.