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2021 DIGILAW 1272 (RAJ)

Kalyan Singh v. State Of Rajasthan

2021-08-02

MANOJ KUMAR GARG, SANDEEP MEHTA

body2021
JUDGMENT Manoj Kumar Garg, J. - Both instant appeals one i.e. Cr. Appeal No.135/2020 by the complainant Kalyan Singh and the other i.e. Cr. Leave to Appeal No.174/2020 by the State, have been preferred against the common judgment dated 08.01.2020 passed by learned Special Judge, SC/ST (Prevention of Atrocities Cases), District Barmer in Session Case No.107/2018 (113/2014) titled as State Vs. Khet Singh & Anr. whereby the learned Judge acquitted the accusedrespondents namely Khet Singh and Jeeya Khan from the charges for offences under Sections 302, 201 IPC. 2. Brief facts of the case are that on 20.08.2014 the complainant Kalyan Singh gave a written report before SHO, PS Shiv, District Barmer inter-alia alleging therein that on 18.08.2014 when he was in Jodhpur, he received a telephonic call from his family that his son Derawar Singh was missing from last two days. Upon receiving the said information, the complainant returned to his village and inquired about his son from the villagers and other family members. Upon such inquiry, one Viram Singh informed that his son Derawar Singh, accused Khet Singh and Jeeya Khan had been seen going towards Sudasar Pond on Jeeya Khan's tractor. On the said information, the complainant went to Sudasar Pond where he found the dead body of his son. Thereafter Bhagwan Singh, cousin brother of the complainant, informed the Police. The complainant further alleged in the complaint that earlier a quarrel had taken place between accused Khet Singh, Jeeya Khan and his son Derawar Singh about a money matter and therefore, to take revenge from his son, the accused respondents took his son with them and killed him and thereafter threw his dead body into the pond. On this complaint, the Police registered the FIR No.128/2014 for offence under Sections 302, 201 IPC against the accused-respondents and commenced investigation. 3. During the course of investigation, the accused-respondents were arrested. After completion of investigation, the Police filed charge-sheet against the accused-respondents for the aforesaid offences. 4. Thereafter the case was committed before the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Barmer where charges were framed against the accused-respondents. They denied the charges and claimed trial. 5. In support of its case, the prosecution examined as many as 18 witnesses and also exhibited certain documents in evidence. 4. Thereafter the case was committed before the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Barmer where charges were framed against the accused-respondents. They denied the charges and claimed trial. 5. In support of its case, the prosecution examined as many as 18 witnesses and also exhibited certain documents in evidence. Thereafter statements of the accused-respondents were recorded under Section 313 Cr.P.C. In defence, the accused-respondents did not examine any witness, however three documents were exhibited 6. After conclusion of the trial, the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Barmer vide judgment dated 08.01.2020 acquitted the accused-respondents for offence under Sections 302 & 201 IPC. Hence, these two appeals against the acquittal of the accused-respondents. 7. Learned counsel Shri Trilok Singh, representing the appellant and Shri NS Bhati, learned Public Prosecutor have vehemently submitted that the trial court has not properly appreciated the evidence available on record while acquitting the accusedrespondents in this case. They submitted that the witness Viram Singh (PW-9) specifically deposed that he saw deceased Derawar Singh, accused Jeeya Khan and Khet Singh consuming liquor together at Sudasar Pond, which constitutes evidence of last seen together. The witness Manohar Singh (PW-4) also deposed that deceased Derawar Singh and accused Jeeya Khan came to his shop on a tractor for buying a water bottle. The statements of these two witnesses clearly show the involvement of the accused respondents in the alleged crime. Counsel further submitted that the complainant specifically stated that earlier the accusedrespondents came to his house and quarreled with his son Derawar Singh, thus this clearly shows that there was a motive for the accused-respondents to kill his son Derawar Singh. Counsel submitted that the trial court without considering these material links of evidence, wrongly acquitted the accused-respondents. 8. We have considered the submissions advanced by the counsels and perused the impugned judgment and the record. 9. The case at hand is based purely on circumstantial evidence primarily in form of last seen together. Viram Singh (PW-9) deposed on oath that on 18.08.2014 he only saw accused respondents and deceased Derawar Singh consuming liquor at Sudasar Pond and before that he saw deceased Derawar Singh sitting on the tractor of accused Jeeya Khan. He further deposed that he never informed this to anybody and after that he did not know where the accused and deceased went. He further deposed that he never informed this to anybody and after that he did not know where the accused and deceased went. In his crossexamination, he admitted that he did not give a report to the Police about disappearance of deceased Derawar Singh and he only informed this fact after two days to his uncle Kalyan Singh, the complainant. He further admitted that he did not go near the accused respondents and deceased when they were consuming liquor. This witness also admitted the fact that after that, he did not know where these three persons had gone. 10. On perusal of testimony of aforesaid witness Viram, it is doubtful that he is the witness of last seen together and his story also does not corroborate with any of the witnesses. More so, despite having knowledge of deceased accompanying the accusedrespondents, this witness remained silent for two days and he had no clue where the accused and deceased went. Thus this witness cannot be considered to be a reliable witness. 11. So far as the statement of Manohar Singh (PW-4) is concerned, though he deposed that accused Jeeya Khan and deceased Derawar Singh came at his shop to buy a water bottle but he never mentioned that on which date and time they came to his shop to buy the water bottle. Thus his testimony cannot be relevant to connect the accused-respondents with the alleged crime. 12. So far as motive part is concerned, the same is completely missing. A careful perusal of evidence available on record shows that a vague allegation has been levelled by the complainant Kalyan Singh that earlier the accused-persons came to his house and they quarreled with his son, however no date and time was mentioned by the complainant of this incident. Thus his testimony is also not relevant to connect the accused respondents with the alleged crime. Further the Investigating Officer also had not taken any foot mould impression or finger prints from the place of occurrence. Thus the aforesaid circumstances do not connect the accused respondents with the alleged crime. 13. A thorough analysis of testimony of the witnesses shows that accused respondents had been involved in the case merely on the basis of suspicion. There was no connecting material on record to establish the involvement of the respondents in the crime-inquestion. Thus the aforesaid circumstances do not connect the accused respondents with the alleged crime. 13. A thorough analysis of testimony of the witnesses shows that accused respondents had been involved in the case merely on the basis of suspicion. There was no connecting material on record to establish the involvement of the respondents in the crime-inquestion. Hon'ble Supreme Court in Allarakha K.Mansuri v. State of Gujarat, (2002) 1 RCR(Cri) 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. 14. 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. 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. 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" 15. In the facts and circumstances of the present case, we are of the opinion that the learned trial Court had rightly ordered the acquittal of the respondents and the impugned judgment calls for no interference. 16. Both the appeals are hereby dismissed.