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2019 DIGILAW 658 (RAJ)

Kana Ram S/o Shri Manroop Ram v. State

2019-02-26

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : VINIT KUMAR MATHUR, J. 1. The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 13.02.2013 passed by the learned Additional Sessions Judge, Bali District Pali in Sessions Case No. 30/2009 whereby the appellant has been convicted and sentenced as under:- Offence Sentence Fine In Default 302 IPC Life imprisonment Rs. 5000/- Two years rigorous imprisonment 201 IPC Three years rigorous imprisonment Rs. 3000/- 03 months simple imprisonment 2. Brief facts necessary to be noted for disposal of the appeal are that on 10.04.2009. PW-1 Vakta Ram lodged a report to the effect that his daughter Pooja, aged 04 years was missing since last evening (09.04.2009). On search being made, when she could not be traced in the locality, he went to search her early in the morning in the nearby forest. While looking for her, he reached near hotel Heera Panna and found dead body of his daughter. The dead body of his daughter had been mauled by dogs and pigs and the same was identified by him through the bracelets on her hands and clothes she wore. He expressed to have no suspicion upon anybody about murder of his daughter. This report was made at 07:00 am in the morning. On the same day at around 10:30 pm, a report was lodged by PW-1 Vakta Ram almost on the same lines expressing suspicion that his daughter was killed by some unknown person and to eliminate the evidence, the body was thrown in the bushes near the river and had been mauled by animals. 3. On this complaint, a formal F.I.R. No. 33/2009 was registered at Police Station Sadri District Pali for the offences under Sections 302, 201 IPC against the accused-appellant. The accused-appellant was arrested on 13.04.2009 vide arrest memo (Ex.P/24). 4. After conclusion of investigation, the police filed chargesheet against the accused- appellant charging him for the offences under Sections 302, 201 of I.P.C. 5. Learned trial court framed, read over and explained the charges for the offences under Section 302, 201 IPC to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 25 witnesses and Ex.P/1 to Ex.P/46 documents were exhibited. In defence, two documents Ex.D/1 and Ex.D/2 were exhibited. 7. Learned trial court framed, read over and explained the charges for the offences under Section 302, 201 IPC to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 25 witnesses and Ex.P/1 to Ex.P/46 documents were exhibited. In defence, two documents Ex.D/1 and Ex.D/2 were exhibited. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he expressed denial and stated that he was falsely implicated and that he was innocent. 8. Learned trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused-appellant for the offences under sections 302, 201 IPC vide judgment dated 13.02.2013. Hence this appeal. 9. We have heard learned Amicus Curiae appearing for the accused-appellant and the learned Public Prosecutor. 10. Learned counsel Amicus Curiae submits that there is no eye witness and the case of prosecution is based totally on circumstantial evidence. Entire material on record nowhere indicates or points towards the only possibility that it was the accused appellant alone who was involved in the commission of the alleged offences and none else. The prosecution has miserably failed to prove the chain of circumstances beyond all shadows of doubt so to connect the appellant with the crime in question. He further argues that in the reports (Ex.P/1 and Ex.P/2), there is no allegation against the accused appellant much less no suspicion has been expressed against him or about his involvement in the offences alleged. He has not been named in the reports (Ex.P/1 and Ex.P/2). He further contends that the case of the prosecution is that deceased Pooja went to a nearby shop for purchasing biscuits with her brother Mahaveer and thereafter, they came back. When Pooja went missing, PW-9 Dakhu asked her son Mahaveer about Pooja who told that she had gone to Kana Ram’s house. Only on this vague statement, the appellant has been implicated in the present case. Mahaveer was never produced and examined as a witness. There was no motive for the accused-appellant to murder deceased Pooja. After arrest of the accused-appellant on 13.04.2009, four memos i.e. Ex.P/41 to Ex.P/44 were prepared and information under section 27 of the Evidence Act was recorded vide memo Ex.P/42. Mahaveer was never produced and examined as a witness. There was no motive for the accused-appellant to murder deceased Pooja. After arrest of the accused-appellant on 13.04.2009, four memos i.e. Ex.P/41 to Ex.P/44 were prepared and information under section 27 of the Evidence Act was recorded vide memo Ex.P/42. As per Ex.P/42, the place of the occurrence and the place where the body of the deceased was thrown were disclosed but the same is of no consequence as the police was knowing the place from where the body was recovered well before 13.04.2009. Hence, the disclosure made appears to be manipulated. As per the FSL report (Ex.P/38 & Ex.P/39), the blood group was reported inconclusive. In the light of submissions made above, learned Amicus Curiae contends that the chain of circumstances is not so complete which indicates that the appellant alone was the person involved in the commission of offence warranting his conviction in the present case. The counsel submits that learned trial court erred in convicting the accused appellant for the alleged offences and prays that the appellant should be acquitted of the charges levelled against him by setting aside the impugned judgment dated 13.02.2013. 11. Per contra, learned Public Prosecutor has supported the judgment dated 13.02.2013 passed by the learned trial court and contended that the prosecution has been able to prove the offence alleged in the present case against the accused appellant beyond all manner of doubt. As per the statement of PW-9 Dakhu, when she went to the house of Kana Ram, he was sleeping on the platform and Pooja was inside the house of Kana Ram. Thereafter, she went missing and on the next morning, her dead body was recovered. This fact gives rise to a concrete inference that when deceased Pooja was last seen in the house of accused- appellant, she was alive and thereafter, her dead body was recovered in the morning. 12. The Statement of PW-21 Dr. Daulat Ram and postmortem report indicates that the cause of death of the deceased was excessive bleeding due to extensive antemortem mutilating injuries caused to the deceased. Recovery of plastic bag and electric wire on the information given by the accused appellant shows that it was the appellant alone who was involved in the commission of the alleged offences in the present case. Recovery of plastic bag and electric wire on the information given by the accused appellant shows that it was the appellant alone who was involved in the commission of the alleged offences in the present case. Learned Public prosecutor submits that the judgment dated 13.02.2013 passed by the trial court calls for no interference by this court. 13. We have considered the submissions made at the bar and have gone through the record of the learned trial court as well as impugned judgment dated 13.02.2013. 14. PW-1 Vakta Ram who is father of the deceased and lodger of the FIR stated that her daughter went missing in the evening. He searched her throughout the village Sadri but he could not find her till late night. Next morning, when he went to search, he found mutilated dead body of Pooja lying amongst the bushes on the bank of the river near the hotel Heera Panna. The police was informed. She was murdered by Kana Ram as she used to sit with Kana Ram quite often. He affixed signatures on different memos prepared by the police. In the cross examination of this witness, it was stated that on 09.04.2009, he gave missing report to the police. When he gave missing report, he had no suspicion on anybody about murder of his daughter. He also suspected Ghisa Ram because he used to regularly come for the work and was a drunkard. 15. PW-9 Dakhu deposed before the trial court that on the fateful day, her husband gave ten rupees to his son Mahaveer and daughter Pooja for purchasing biscuits from the shop. Both of them purchased the biscuits and returned home. When she asked Mahaveer about Pooja, he informed that she was at the house of accused Kana Ram. When she went to the house of Kana Ram at about 05:00 p.m. Kana Ram was sleeping on the platform in a drunken condition and on being asked, he informed that he was not aware about whereabouts of Pooja. Thereafter, search was made for her by the whole family and Vikram and Mohan also participated. On the next morning, dead body of Pooja was recovered from the banks of river. During the cross examination of this witness, nothing was elicited which may create any doubt upon her testimony. 16. PW-18 Dr. Thereafter, search was made for her by the whole family and Vikram and Mohan also participated. On the next morning, dead body of Pooja was recovered from the banks of river. During the cross examination of this witness, nothing was elicited which may create any doubt upon her testimony. 16. PW-18 Dr. Shiv Bhagwan Pandey who was member of the Board which conducted autopsy on the person of the deceased. He stated that the body of the deceased was totally disintegrated. There was no organ in the stomach. There was only heart in the chest. Private parts were missing. Muscles of the thigh were missing and only bones were visible. Only jaw was present. Eyes, mandible and neck muscles were missing. The cause of death was described as excessive bleeding caused by injuries on the body of the deceased. 17. PW-21 Dr. Daulat Ram Verma deposed before the trial court and described the cause of death as excessive bleeding. 18. PW-24 Chandra Shekhar was the investigating 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. He further stated that after conducting the investigation as prescribed by law, he filed charge sheet in the court. 19. Postmortem report is Ex.P/22 wherein the cause of death is shown as Hemorrhagic shock due to extensive mutilating injuries to the body. 20. Ex.P/38 and Ex.P/39 is the FSL report wherein the blood group was reported inconclusive. 21. On close scrutiny of the testimony of PW-1 Vakta Ram and PW-9 Dakhu, we find that both father and mother were not certain about the involvement of the accused- appellant for the murder of Pooja. Close reading of their statements show that suspicion was cast over the present appellant only because he was resident of the area and the deceased used to frequent his house. The Statements of PW-1 Vakta and PW-9 Dakhu do not inspire confidence for establishing the fact that there was involvement of the present appellant for the offences alleged in this case. Merely the fact that the deceased Pooja used to regularly visit the house of the present appellant cannot give rise to an inference that it was the appellant alone who committed the crime. Merely the fact that the deceased Pooja used to regularly visit the house of the present appellant cannot give rise to an inference that it was the appellant alone who committed the crime. Even the reports Ex.P/1 and Ex.P/2 lodged by PW-1 Vakta Ram neither disclosed the name of the accused- appellant nor was any doubt expressed against the accused- appellant for the alleged murder. Therefore, in these circumstances, it was incumbent upon the prosecution to complete the chain of circumstances by collecting evidence in such a fashion which would conclusively establish that none other the appellant was the person who was involved in the offences alleged. In the present case, the circumstances are rather flimsy and do not inspire any confidence. The mutilated dead body of the deceased was found in the bushes in a decomposed condition with almost all muscular parts either eaten away or detached from the skeleton. 22. The case set up by the prosecution is that the accused-appellant murdered the deceased by throttling/strangulating her and therefore, the body of the deceased was taken away and thrown into the bushes on the bank of the river. Medical evidence shows the cause of death is excessive bleeding. If the prosecution story is believed then there is no question of blood being found at the place from where the body was recovered. This is for the reason that if a person is strangulated to death then there is little possibility of blood being found on the body, clothes or nearby area whereby the dead body was found except for the fact that blood may come out from nostril. In the present case, the body was found in a mutilated condition as noted by the doctors (PW-18 & PW-21). It is also a categorical medical evidence showing that wounds of mutilation noticed by the doctors (PW-18 & PW-21) on the body of the deceased were antemorten in nature and were opined to be the cause of death of the deceased. The doctors (PW-18 & PW-21) also opined that the possibility of injuries suffered by the deceased having been eaten away by the wild animals cannot be ruled out. 23. The doctors (PW-18 & PW-21) also opined that the possibility of injuries suffered by the deceased having been eaten away by the wild animals cannot be ruled out. 23. We are conscious of the fact that the area in which the dead body was recovered is a forest area having a number of wild animals, therefore, looking to the nature of injuries, the possibility of the deceased being attacked by some wild animal is more probable and closer to truth. 24. The disclosure made by the alleged accused under section 27 of the Evidence Act and the discoveries made in furtherance thereof are of no consequence as the place from where the body was recovered was already within the knowledge of the police. Recovery of other articles does not give rise to any incriminating circumstance because as per the FSL report the blood group on the articles examined could not be determined and the test remained inconclusive. Besides this there is no other evidence to connect the accused appellant with the commission of crime in the present case. 25. We are gainfully supported by the judgment of the Hon’ble Court in the case of Sonu @ Amar vs. State of Haryana, 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. 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.” 26. 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.” 26. In Sudesh Singh vs. State of Rajasthan through Public Prosecutor, 2014 (3) WLC (Raj.) 421, a coordinate bench of this Court has observed as under: “The law on the question of circumstantial evidence is well settled that an accused can be convicted in a case of circumstantial evidence only if the chain of circumstances against him is so complete as to rule out every single hypothesis that may be compatible with his innocence. Standard of proof in a criminal matters is always beyond reasonable doubt. Therefore, the prosecution in every such case is required to prove guilt of the accused beyond reasonable doubt. If there is any scope of reasonable doubt, benefit of such doubt has to be extended to the accused. The rival submissions have to be therefore tested on that yardstick to find out whether alleged offences against the accused appellant have been proved beyond reasonable doubt. It is 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. Though the prosecution sought to produce a large number of independent witnesses to prove the factum of last seen, motive and recovery against accused-appellants but their testimony stands on a shaky ground and has many contradictions, inconsistencies and does not prove any of those three factors, viz. last-seen, recovery and motive, beyond reasonable doubt. Prosecution has not been able to prove any of these three circumstances independently beyond reasonable doubt, let alone forming a chain of circumstance. last-seen, recovery and motive, beyond reasonable doubt. Prosecution has not been able to prove any of these three circumstances independently beyond reasonable doubt, let alone forming a chain of circumstance. 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.” 27. 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 in the present case as held by the Hon'ble Supreme Court in the case of Sarwan Singh vs. State of Punjab, AIR 1957 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. 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. 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. 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.” 28. Therefore, in view of whatever discussed above, the chain of the circumstances in the present case is not so complete so as to establish beyond all manner of doubt that it was the accused appellant alone who was involved in the commission of the offence alleged in the present case. Hence, the learned trial court erred while convicting the accused appellant vide judgment dated 13.02.2013. 29. Resultantly, the instant appeal is allowed and the judgment dated 13.02.2013 passed by learned Additional Sessions Judge, Bali District Pali is quashed and set aside. The accused appellant is acquitted of the charge of offence under sections 302, 201 IPC. He shall be released from the prison forthwith, if not wanted in any other case. The record be returned forthwith.