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2019 DIGILAW 1918 (RAJ)

State of Rajasthan v. Harveer

2019-07-08

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Respondents had faced trial qua offence punishable under Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') in FIR No.145 dated 13.05.2012 registered at Police Station Khairthal, District Alwar. 2. Prosecution story, in brief, is that Harkesh and Ashiq were working on Truck No. RJ-02-GA-4797 owned by Dilip Agarwal as conductor/driver respectively. On 13.05.2012 at about 6.00 p.m., dead body of Harkesh and Ashiq were recovered near Khairthal in the truck. On the basis of the statement of the complainant, formal FIR was registered. 3. After completion of investigation and necessary formalities, challan was presented against the respondents. 4. Trial court vide impugned judgment dated 02.04.2014 ordered the acquittal of the respondents with regard to the charges framed against them under Section 302/34 IPC, Hence, the present appeal by the State. 5. We have heard learned State counsel and learned counsel for respondents No. 1 and 2 and have gone through the record available on the file carefully. 6. Present case relates to murder of Harkesh and Ashiq. Case rests on circumstantial evidence. 7. It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh, AIR 2012 SC 1552 , as under:- "There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial." 8. It has also been held by the Hon'ble Supreme Court in Bachan Singh vs. State of Punjab, 1980 (2) SCC 684 , as under:- "In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under: (i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefore, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty. (ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty. (ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGantha v. California, (1971) 402 US 183 (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. (iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area. (iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. (iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life. (v) (a) Relevant facto and circumstances Impinging on the nature and circumstances of the crime can be brought before the Court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facto and circumstances had been specifically provided. When counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts. (b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21." 9. Prosecution had relied upon the statements of witnesses PW-3 Prakash and PW-5 Abid. The said witnesses had allegedly seen the respondents in the company of the deceased prior to the incident. So far as PW-3 is concerned, although, he stated that he had identified the accused in an identification parade conducted during trial but he stated that he was unable to identify the accused in the court as they had grown beard. So far as PW-5 is concerned, he deposed that he had identified the accused in an identification parade, but the said witness has not specifically stated that on the day of incident, he had seen the deceased in the company of the accused/respondents. 10. In these circumstances, learned trial court rightly held that no reliance could be placed on the testimony of PW-3 and PW-5 to order the conviction of the respondents. Since, PW-3 and PW-5, star witnesses of the prosecution had failed to advance the prosecution case, learned trial court rightly held that the conviction of the respondents could not be based on the recovery of cash effected from them. It has been noticed by the trial court that recovery of Rs. 4,800/- from respondent No. 1 and recovery of Rs. 5,400/- from respondent No. 2 were effected on 23.05.2012, although, the Investigating Officer has visited the spot of recovery on 22.05.2012 also. Moreover, there was no material on record to establish that the currency notes recovered from the accused were the same, which had been taken away by them from the truck-in-question. Learned trial court has further noticed that the armourer PW-15 in his cross-examination had deposed that he had not given any opinion as to whether any shot had been fired from the recovered country-made pistol. Learned trial court has further noticed that the armourer PW-15 in his cross-examination had deposed that he had not given any opinion as to whether any shot had been fired from the recovered country-made pistol. It has also been noticed by the trial court that no independent witnesses were examined with regard to the recoveries effected by the Investigating Officer from the truck-in-question. 11. Thus, in the present case, learned trial court rightly came to the conclusion that the prosecution had failed to complete the chain of circumstances leading to the guilt of the respondents and rule out the possibility of their innocence. 12. Hon'ble the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, has held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. 13. Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) SCC 479 , the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under: "It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed" 14. Hence, no ground for interference by this Court is made out. Dismissed.