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2019 DIGILAW 2608 (RAJ)

Kalu @ Hanuman v. State of Rajasthan

2019-09-26

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT Goverdhan Bardhar, J. - Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 21.01.2013 passed by the Court of learned Additional Sessions Judge, Bandikui, District Dausa [for short 'the learned trial Court'] in Sessions Case No.09/2006, State of Rajasthan vs. Kalu @ Hanuman & Anr., whereby the learned trial Court has convicted and sentenced the accusedappellant as under:- U/s.364 IPC: Ten years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo three months rigorous imprisonment. U/s.302 IPC: Life imprisonment and fine of Rs.5,000/-, in default of payment of fine to further undergo three months rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. Facts of the case in nutshell are that complainant Guddi (PW1) submitted a complaint under section 190 Cr.P.C. in the Court of Judicial Magistrate, Sikrai against the appellant and another co-accused Kripal etc. with the averments that Kailash- husband of complainant worked with the accused-appellant and on account of some personal expenses he gave Rs.47,000/- to Kailash. On demand Kailash did not pay the said amount for which some dispute arose between them. On 12.07.2005 at about 8:00 p.m., Kailash went to the house of the accusedappellant for settlement of amount and when he did not return, the complainant obtained information about Kailash and came to know that one person was lying in the well and when went to the well, she came to know that the person was Kailash. The aforesaid complaint was sent under section 156(3) Cr.P.C. to the Police Station Bandikui for registration of the FIR. Afterwards, an FIR No.470/2005 was registered at Police Station Bandikui for the offence under section 302, 201 and 120B IPC. The police after investigation submitted charge-sheet against accused Kaluram and a supplementary charge-sheet was submitted against accused Kripal Singh for the offences under sections 364, 302, 201 and 120B IPC. 3. Learned trial court framed charges against the accused appellant for the offence under Section 364 and 302 IPC. The accused appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of eleven witnesses and ten documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the accused appellant did not examine any witness but ten documents were got exhibited. The accused appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of eleven witnesses and ten documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the accused appellant did not examine any witness but ten documents were got exhibited. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence passed by learned trial court dated 21.01.2013 has preferred this criminal appeal. 4. Learned counsel for the accused appellant has argued that there are major contradictions in the testimony of the prosecution witnesses and the prosecution has failed to prove the guilt of accused appellant beyond all reasonable doubt. In the present case, the incident took place on 12.7.2005 for which the FIR was lodged by the complainant on 26.8.2005. The complainant failed to give plausible and reasonable explanation for lodging the FIR after with an inordinate delay. There is no eye-witness of the alleged incident and the case of the prosecution rests on circumstantial evidence. In the present case the dead body of the deceased was handed over to the family members of the deceased in the presence of police personnel, SDM and Tehsildar concerned. Learned counsel further argued that the deceased Kailash was habitual of consuming liquor. 5. On the other hand, the learned Public Prosecutor has supported the impugned judgment and submitted that the impugned judgment calls for no interference. The learned Public Prosecutor has prayed for dismissal of the appeal. 6. Having heard the learned counsel for the parties, we have perused the impugned judgment and examined the record. 7. The prosecution case rests on circumstantial evidence. 8. Complainant (PW1) in addition to the averments made in the complaint deposed that dispute in between her husband and Kalu was not of Rs.50,000/- but was of Rs.47,000/-. In statement (Ex.D4) she did not narrate to the police that 'her father-in-law went on 'kothi' after taking dinner'. This witness further deposed that in the statement (Ex.D2) she did not narrate to the police that 'her father-inlaw when came back home from the 'kothi', the time was around 8 O' clock'. She further deposed that on the day of incident her father-in-law and 'Jeth' told her that they have got registered the report, so she did not lodge the report. 9. She further deposed that on the day of incident her father-in-law and 'Jeth' told her that they have got registered the report, so she did not lodge the report. 9. Sitaram (PW2) deposed that Kalu and Kailash both were partners in the business of Timber. This witness deposed that he did not sign at A to B part of the statement Ex.D6. The police got his signatures on blank papers. In statement Ex.D7 it was not mentioned that 'Kailash told in front of him to Kalu that he will settle dispute of Rs.47,000/-'. This witness has admitted political rivalry between his family members and Kalu in connection with Panchayat elections. 10. Radheyshyam (PW3) deposed that the police took his signatures on blank papers. 11. Jagdish (PW5) deposed that the police did not record his statement. He did not give statement to the police from A to B part in the police statement (Ex.D8) and the police has wrongly mentioned the same. 12. Gopi (PW6) is witness of Panchnama (Ex.P4), site-plan (Ex.P3) and the statement (Ex.D10) recorded under section 174 Cr.P.C. This witness further deposed that how Kailash had died, he is not aware. 13. Dr. Ghanshyam Meena (PW8) deposed that on 13.07.2005 he was posted as Medical Officer at P.H.C., Sikandara. He conducted autopsy (Ex.P7) on the dead body of Kailash. He found six injuries on the person of deceased. The cause of death of deceased was 'Respiratory Arrest with hemorrhagic shock'. 14. Kalyanmal (PW10) deposed that on 23.10.2005 he was posted as Addl. Superintendent of Police, Dausa. After investigation, he found case proved against accused Kalu @ Hanuman and Kripal Singh for under sections 302, 201, 120B and 364 IPC. This witness denied about consumption of liquor by Kailash. 15. Matadeen Sharma (PW11) deposed that on 01.01.2006 he was posted as SHO at Police Station Bandikui. After handing over the investigation by Addl. S.P. to him, he further investigated the matter and submitted chargesheet against accused appellant under sections 302, 201, 120B and 364 IPC and submitted supplementary charge-sheet under section 173 (8) Cr.P.C. against co-accused Kripal Singh. 16. Rameshwar Lal (PW12) is witness of Panchayatnama (Ex.P4), inquest report (Ex.D9), site-plan (Ex.P10). 17. No other evidence against the accused appellant has been produced by the prosecution. 18. Complainant Guddi (PW1) admitted that the police came at the spot. 16. Rameshwar Lal (PW12) is witness of Panchayatnama (Ex.P4), inquest report (Ex.D9), site-plan (Ex.P10). 17. No other evidence against the accused appellant has been produced by the prosecution. 18. Complainant Guddi (PW1) admitted that the police came at the spot. In crossexamination, she admitted that after 2-3 days of the incident, on enquiry the police informed her that investigation was going on. She further admitted that she could not say that on the statement Ex.D1 bears her thumb impression. Sitaram (PW2) admitted that after Panchayat elections there was political rivalry with the accused. 19. Ramkishore and Ashok had allegedly witnessed the incident but they were not examined by the prosecution. 20. Jagdish (PW5) admitted that he was sleeping at home. At about 10:00 p.m., he heard noise and went to the spot. Thus, the presence of this witness at the place of occurrence was not established. 21. The testimony of Gopi (PW6) is based on hearsay evidence. 22. Bhomaram (PW7) deposed that on 26.08.2005 he was posted as SHO, Police Station Bandikui. This witness admitted that he recorded the statements of Smt. Guddi, Sitaram, Gopiram, Jagdish, Mangilal, Radheyshyam, Marphan and after recording the same, he included in the inquest report and Panchayatnama of Kailash (now deceased). 23. Dr. Ghanshyam Meena (PW8) in crossexamination admitted that injuries on the person of deceased can come due to fall in well. Thus, the possibility of death due to fall of Kailash (now deceased) in well cannot be ruled out. 24. Rameshwar Lal (PW12) deposed that on 13.07.2005 he was posted as ASI, Police Station Bandikui. The SHO entrusted him inquiry under section 174 Cr.P.C. In cross-examination, this witness admitted that during the course of investigation, in this matter FIR was registered for the offence under section 302 IPC. So he handed over the file to the SHO, Police Station, Bandikui. 25. The theory of last seen is sought to be proved from PW3-Radheyshyam and PW5-Jagdish. Both the witnesses admitted that they are cousins of the deceased. Moreover, the prosecution has failed to establish presence of 26. Pw3 Radheyshyam and PW5- Jagdish at the spot. PW3-Radheyshyam deposed that Ashok and Ramkishan also witnessed the quarrel but the prosecution did not examine Ashok and Ramkishan. Thus, the aforesaid evidence of PW3-Radheyshyam and PW5- Jagdish does not inspire confidence. There are major contradictions in the statements of the prosecution witnesses. 27. Pw3 Radheyshyam and PW5- Jagdish at the spot. PW3-Radheyshyam deposed that Ashok and Ramkishan also witnessed the quarrel but the prosecution did not examine Ashok and Ramkishan. Thus, the aforesaid evidence of PW3-Radheyshyam and PW5- Jagdish does not inspire confidence. There are major contradictions in the statements of the prosecution witnesses. 27. At the time of preparation of inquest report Ex.P3 which is duly signed by the family members of the deceased as well as the Sarpanch, no suspicion was raised against anyone. It appears that the wife of the deceased has involved the appellant in this case merely on the basis of suspicion. It is a settled preposition of law that, suspicion howsoever strong, cannot take place of proof. 28. In Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509 , also the Supreme Court sounded a word of caution that the court must be cautious against conjectures and surmises taking place of proof. Circumstances so proved must form a chain of events pointing to guilt of accused beyond all reasonable doubt without there being possibility of any other hypothesis. Each and every incriminating circumstance must be clearly established by reliable and clinching evidence, and the circumstances so proved must form chain of proof from which natural and irresistible conclusion could be drawn as to the guilt of accused and no other hypothesis against guilt is possible. It was further observed by their Lordships that in a case depending largely upon circumstantial evidence, there is always a danger that conjectures and surmises may take place a legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of innocence of the accused. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. It was further observed that when important link goes, the chain of circumstances gets snapped. This is what has happened in the present case because of failure of the prosecution to conclusively connect the accused with the crime. 29. It was further observed that when important link goes, the chain of circumstances gets snapped. This is what has happened in the present case because of failure of the prosecution to conclusively connect the accused with the crime. 29. It is thus trite that in a case of circumstantial evidence there must be complete chain of evidence, which should lead to conclusion that the accused was the only person, who could have committed offence and none else. Each of circumstances that is proved against the accused should form a chain so complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused. Analysis of the evidence that we have made above, makes it evident that there are several missing links in the chain of circumstances, which cannot be accepted to be so complete as to point to the guilt of the accused and none else and when every single possibility of accused being innocent is ruled out. 30. The Supreme Court in Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 , held that the five golden principles, which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence, are (i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; (ii) that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) that the circumstances should be of a conclusive nature and tendency; (iv) that they should exclude every possible hypothesis except the one to be proved; and, (v) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 31. In view of the above discussion, we are not inclined to uphold conviction of the accused-appellant, which is entirely based on circumstantial evidence for the reason that chain of circumstances sought to be proved against him has several missing links and fail to establish his guilt and negate his innocence. 32. 31. In view of the above discussion, we are not inclined to uphold conviction of the accused-appellant, which is entirely based on circumstantial evidence for the reason that chain of circumstances sought to be proved against him has several missing links and fail to establish his guilt and negate his innocence. 32. The appeal preferred by the appellant is allowed. The conviction of the appellant as ordered by the trial court is quashed and set aside. The appellant is acquitted of the charge(s) framed against him. Appellant who is in custody, be set at liberty, if not required in any other case. 33. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Kalu @ Hanuman s/o Ramji Lal is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.