Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 1464 (RAJ)

Gattu Alias Tulsia v. State

2024-10-22

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

body2024
JUDGMENT : (Pushpendra Singh Bhati, J.) : 1. This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs: “It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges levelled against him and he be set at liberty” 2. The matter pertains to an incident which occurred in the year 1996 and the present appeal has been pending since the year 1998. 3. The accused-appellant laid a challenge to the judgment of conviction and order of sentence dated 10.03.1998 passed by the learned Additional Sessions Judge, Dungarpur, in Sessions Case 66/97 (State of Rajasthan v. Gattu @ Tulsa and ors.), whereby the present accused-appellant has been convicted and sentenced as below: Offence under Section(s) Sentence(s) Fine(s) 302 IPC Life Imprisonment Rs. 1000/- in default of which to undergo further 2 years of Rigorous Imprisonment 201 IPC 3 years Rigorous Imprisonment Rs. 500/- in default of which to undergo further 6 months of Rigorous Imprisonment 4. As the pleaded facts and the record would reveal, an information was received by the Police on 09.11.1996 at around 04:00 pm, to the effect that an unidentified dead body has been found lying in the Well. Upon taking out the dead body from the said Well, it was found that the same, as identified by Ranchod (PW-1) brother of the deceased, was that of one Gala (henceforth referred to as ‘deceased’). In the instant factual matrix, the accused-appellant and the deceased victim were having their lands nearby and on 08.11.1996, there occurred a verbal altercation between them regarding feeding and trespassing of cattle. After such verbal altercation, the deceased went to the accused-appellant’s father to complain about the conduct of the accused-appellant, and being annoyed by the same he reached the place and started hitting the deceased with a wooden stick; as a consequence whereof, the deceased, at the house of one Gebilal, succumbed to the injuries caused by the accused-appellant, whereafter, the accused-appellant disposed of the dead body in the aforesaid well. 5. On the basis of the aforementioned information, an FIR was registered against the accused-appellant under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and against the 7 other accused persons under Section 201 IPC, thereafter, the investigation commenced accordingly. 5. On the basis of the aforementioned information, an FIR was registered against the accused-appellant under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and against the 7 other accused persons under Section 201 IPC, thereafter, the investigation commenced accordingly. The police after completing the investigation, submitted a chargesheet under the aforesaid provisions of law; the learned Trial Court framed the charges against the accused-appellant and the other accused persons. The charges were read over to them, which they denied and claimed to stand the trial and the trial commenced accordingly. 6. During course of the trial, the evidence of 18 prosecution witnesses were recorded and 48 documents were exhibited on behalf of the prosecution, whereas, the accused-appellant produced 2 witnesses and exhibited 9 documents in support of the defence; whereafter, the accused-appellant and other accused persons was examined under Section 313 Cr.P.C., in which they, while denying all the charges, pleaded innocence and their false implication in the criminal case in question. 7. Subsequently, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence dated 10.03.1998, against which the present appeal has been preferred on behalf of the accused-appellant. However, as indicated above, the other accused persons were acquitted of the charges against them, by the learned Trial Court vide the impugned judgment. 8. Mr. Divik Mathur, learned Amicus Curiae appearing for the accused-appellant submitted that the testimony of PW-4 Shanti is unreliable, as a bare perusal thereof clearly reveals that she stated to have only heard about the death in question and that she did not know how it occurred. Further, she did not see the person who was carrying the weapon used in the said offence. Also, the delay in testimony before the police raises suspicion of her being an eyewitness as alleged, thus, she is a hostile witness, as she did not support her own version in the cross-examination. 8.1. It was further submitted, with regard to PW-5 Hurji that his testimony reveals that he is just a chance witness and he stated to have not known about the date and time of the death in question; he only identified the deceased in dock for the first time. 8.1. It was further submitted, with regard to PW-5 Hurji that his testimony reveals that he is just a chance witness and he stated to have not known about the date and time of the death in question; he only identified the deceased in dock for the first time. In this regard, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Ravi Mandal v. State of Uttarakhand (2023) SCC OnLine SC 651. 8.2. It was also submitted that PW-5’s version of the story contradicts the version of other alleged eyewitnesses, as he deposed only to the extent of having seen the accused-appellant holding hands of the deceased and taking him inside the house of Gebilal. Hence, it was submitted that the said witness is clearly not an eyewitness to the incident in question. In this regard, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Krishnegowda and ors. v. State of Karnataka (2017) 13 SCC 98 . 8.3. It was further submitted that the site plan also does not corroborate the testimony of eye witness PW-5 who has stated to have witnessed the incident from the house of Dhula and that of PW-12, the investigating officer who has stated that the house of Dhula is behind the house of Gebilal as the said alleged factum is clearly absent from the site plan. In this regard, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Shingara Singh v. State of Haryana (2003) 12 SCC 758 . 8.4. It was also submitted that the manner in which investigation has been conducted by concerned police authorities creates a complete cloud on the prosecution story; almost all the important witnesses produced during the trial i.e., PW-1, PW-3, PW- 4, PW-6, PW-7, PW-8, PW-17 and PW-18 have stated in their testimonies that the police have apparently committed certain material omissions in recording the testimonies of the said witnesses, as the same clearly not in line with the actual depositions made by them. 8.5. It was further submitted that the delay in the filing of the FIR by the complainant, Ranchod (PW1) remained unexplained during the whole proceedings of the trial. 8.5. It was further submitted that the delay in the filing of the FIR by the complainant, Ranchod (PW1) remained unexplained during the whole proceedings of the trial. Furthermore, the eyewitnesses of incident did not depose to anybody for long and went to police only after the registration of FIR, which also casts a shadow of doubt on their credibility. In this regard, reliance was placed on the judgment rendered by the Hon’ble Apex Court in the case of Ramaiah v. State of Karnataka ( 2014 9 SCC 365 ). 8.6. It was also submitted that the manner in which recoveries have been affected by the prosecution dwindles its case, as the same was done without adhering to the provisions of Section 27 of Indian Evidence Act, 1872 as the words/statements made by the accused as information given under Section 27, were not incorporated in the Panchama. In this regard, reliance was placed on the judgment rendered by the Hon’ble Apex Court in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, (Criminal Appeal No. 985/2010) decided on 19.04.2024 and Bobby v. State of Kerala (Crl. Appeal No. 1439/2009) decided on 12.01.2023. 8.7. It was further submitted that no blood stains were found on the weapons or the objects recovered and they were not even sent for FSL by the investigating officer (PW-12). It was also submitted that as per the Postmortem Report and the testimony of the Doctor (PW-9) the cause of death in question is not any alleged weapon of offence which was recovered, rather it was head injury and liver rupture, which could have caused the death because of the deceased falling in the well. In this regard, reliance was placed upon the judgment rendered by the Hon’ble Apex Court in the case of Sonvir v. State (NCT of Delhi) (2018) 8 SCC 24 . 8.8. It was also submitted that the chain of the circumstances in the present case is not complete and the ingredients of Section 302 IPC and 201 IPC are also not made out. 8.8. It was also submitted that the chain of the circumstances in the present case is not complete and the ingredients of Section 302 IPC and 201 IPC are also not made out. It was further submitted that in the present case, two views are possible, wherein by virtue of the testimony of Nanji (DW1), the second view so shown is that the deceased was arguing with his family members, who were very frustrated about his high consumption of alcohol, for which he said, “it would be better if he only dies”, as then the family will not face any problem and; in the presence of this, second plausible view as submitted on behalf of the accused-appellant, is that when two views are possible, the view tilting in favour of the accused should be considered as held by the Hon’ble Apex Court in the case of Pradeep Kumar v. State of Chattisgarh (2023) 5 SCC 350 . 9. On the other hand, Mr. C.S. Ojha, learned Additional Government Advocate appearing on behalf of the respondent-State, opposed the aforesaid submissions made on behalf of the accused-appellant, while submitting that PW.4 (Shanti) and PW.5 (Hurji) saw the accused-appellant taking the deceased with him into the house of Gebilal. 9.1. It was further submitted that there is evidence of there being altercation between the two i.e. the deceased and the accused-appellant, which shows motive on part of the accused-appellant to cause death in question. It was also submitted that the weapons of the crime in question i.e., 2 lathis were recovered on the basis of the information given by the accused-appellant himself, and therefore, he was rightly convicted and sentenced by the learned Trial Court vide the impugned judgment. 10. Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar. 11. This Court observes that the accused-appellant was charged with the offence of murder of the deceased, and after conducting the trial, learned Trial Court convicted and sentenced him in connection with the charges under Sections 302 & 201 IPC, vide the impugned judgment. 12. This Court further observes that as per the prosecution, there were 4 eyewitnesses of the incident in question, i.e., PW4 (Shanti), PW5 (Hurji), PW6 (Bhemji), PW13 (Mani). 12. This Court further observes that as per the prosecution, there were 4 eyewitnesses of the incident in question, i.e., PW4 (Shanti), PW5 (Hurji), PW6 (Bhemji), PW13 (Mani). However, the learned Trial Court has observed that PW13 has denied to have seen anything and have not at all supported the story of the prosecution. Further, with regard to PW6’s testimony, the learned Trial Court has concluded that PW6 was having some property dispute with the accused-appellant, pursuant to which he has filed the complaint against him; which in turn casts a doubt upon his testimony. Further, PW6 has also talked about seeing the incident of fight and hitting among the accused-appellant, deceased-victim and Gebilal, however, the same is not corroborated by any other witness. Therefore, the testimony of PW6 is not reliable. 13. Further, with regard to the testimony of PW4, the learned Trial Court has found it to be reliable and has not found anything substantial enough to cast a doubt upon her testimony. However, a perusal of the testimony given by PW4, reveals a clear contradiction in the statements made by him in the examination-in-chief and the cross-examination; whereas in the examination-in-chief, she stated to have seen the accused-appellant entering the house and assaulting the deceased but, in the cross-examination, she stated that she niether knows who entered the house of Gebilal, nor did she listen to any screams from the said house. This contradiction in the statements casts a serious doubt upon the testimony of PW4. 14. Further, another pertinent witness of the prosecution is PW5, who was unable to substantiate upon any of the questions asked during the examination; he is just a chance witness and he stated to have not known about the date and time of death of deceased, he only identifies the deceased in dock for the first time. Further, his version of story contradicts the version of other alleged eyewitnesses as he stated only to the extent of having seen the appellant holding hands of the deceased and taking him inside the house of Gebilal. The same also proves the fact that he was not an eyewitness. Therefore, the learned trial court has erred in law in believing the said witness to be an eyewitness and therefore was not justified in believing the testimony of PW5. 15. The same also proves the fact that he was not an eyewitness. Therefore, the learned trial court has erred in law in believing the said witness to be an eyewitness and therefore was not justified in believing the testimony of PW5. 15. Thus, this Court concludes that in the present case, there was no reliable eyewitness, and therefore, the guilt of the accused-appellant lies upon the circumstantial evidence in the case. 15.1. In this regard, this Court is conscious of the judgment rendered by the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , whereby the Hon’ble Apex Court laid down the five golden principles, which constitute the Panch-Sheel of the proof of a case based on circumstantial evidence; the same reads as follows: “(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ’may be proved’ and ’must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ’may be’ and ’must be’ is long and divides vague conjectures from sure conclusions." (2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and 164 (5) 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.” 16. This Court further observes that the learned Trial Court has accepted the argument of the accused-appellant that PW1 (Ranchod), PW2 (Gattu), PW5 (Huraj) and PW16 (Nani) were not the eyewitnesses of the incident in question and they got to know about it later, and therefore their testimonies as against the accused-appellant are also merely on the basis of suspicion that the accused-appellant has caused the death of in question. However, the testimony of PW-5, Huraj and PW-16, Nani shows that on the day of death, an altercation happened between the accused-appellant and the deceased, but the mere factum of an altercation between the two does not conclusively prove that it was only the accused-appellant, who committed the crime in question. 17. This Court also observes that it is clear from the Postmortem Report, Ex.P. 17 and the testimony of PW9 (Dr. Rakesh Verma) that the cause of the victim’s death is ‘Haemorrhage Shock’, which occurred due to rupture of spleen and ‘Head Injury’, which could possibly occur by falling in the Well and does not necessarily point towards injuries if any, that lathis so recovered could have caused. The possibility of the deceased himself jumping into the Well is further supported by the testimony of defence witnesses DW1 (Nanji) and DW2 (Rama), who have highlighted the factum of the presence of family issues and statement made by the deceased, expressing his desire to end his life in order to solve the problems of his family. 18. Further, this Court observes that the Site Plan prepared by the investigating officer does not corroborate the testimony of the witnesses PW5 and PW12, as the places mentioned by them in their testimonies are not present in the site plan. 19. This Court thus observes that in the absence of any direct evidence in the present case, the onus lies on the prosecution to establish a complete chain of circumstances, which could point towards one and only one conclusion which is the guilt of the accused-appellant and no other. However, in the present factual matrix, the story of prosecution is knotted due to vitiated shreds of evidence and does not point only towards the guilt of the accused-appellant. 20. This Court also observes that when the judgment of conviction is challenged before the Appellate Court, a proper appreciation of the evidence recorded by the learned Trial Court has to be made. 20. This Court also observes that when the judgment of conviction is challenged before the Appellate Court, a proper appreciation of the evidence recorded by the learned Trial Court has to be made. The power of the Appellate Court is provided under Section 386(b) of Cr.PC, which reads as under:- "386. Powers of the Appellate Court.-- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (b) in an appeal from a conviction-- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same--" 20.1. Thus, the Appellate Court has the power under Section 386(b)(i) of Cr.P.C., to reverse the findings of the conviction, so as to acquit the accused. 21. Now, as regards, the scope of interference in the judgment of conviction passed by the learned Trial Court, it is considered appropriate to reproduce the relevant portion of the judgment rendered by the Hon'ble Apex Court in case of Kamlesh Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263 , as hereunder: - "9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P. [ (2000) 1 SCC 621 : 2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2) "2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. (emphasis supplied) 10. In Rama v. State of Rajasthan [ (2002) 4 SCC 571 :2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4) "4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law." 11. In Iqbal Abdul Samiya Malek Vs. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law." 11. In Iqbal Abdul Samiya Malek Vs. State of Gujarat, (2012) 11 SCC 312 : (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [ (2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. (1996) 4 SCC 720 : 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court. 12. Recently, a three-Judge Bench in Majjal v. State of Haryana (2013) 6 SCC 798 has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter." 22. This Court further observes that there are two sides to the story; firstly, as per the prosecution, the accused-appellant committed murder of the deceased due to the altercation between the two and then disposed of the body in the well; and secondly, as per the defence, the deceased was going through some family issues over his over-consumption of alcohol, pursuant to which he himself jumped in the Well and resultantly, died. The evidences produced by the defence have successfully cast a doubt upon the story of the prosecution, and therefore, the prosecution has failed to satisfy the Panch-sheel principles laid by the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda (supra). 23. This Court therefore observes that in the present case, the prosecution has failed to prove its case against the accused-appellant, beyond all reasonable doubts. 23. This Court therefore observes that in the present case, the prosecution has failed to prove its case against the accused-appellant, beyond all reasonable doubts. Thus, the benefit of doubt has to be given to the accused-appellant. 24. This Court also observes that there are reliable and cogent evidence on record that the accused-appellant's conviction deserves to be reversed, from conviction to acquittal, as provided under Section 386(b)(i) of Cr.P.C "reverse the finding and sentence and acquit". 25. Thus, in light of the aforesaid observations and the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed. Accordingly, while quashing and setting aside the impugned judgment of conviction and order of sentence dated 10.03.1998 passed by the learned Additional Sessions Judge, Dungarpur, in Sessions Case 66/97 (State of Rajasthan v. Gattu @ Tulsa and ors.), the accused-appellant is acquitted of the charges against him under Sections 302 & 201 IPC. The appellant was granted bail vide order dated 20.08.1998 (D.B. CR. MISC. (Bail) No. 224/98) passed by a Coordinate Bench of this Hon'ble Court in the instant appeal. His bail bonds stand discharged. 25.1. However, keeping in view the provisions of Section 437A CrPC/Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023, the accused-appellant is directed to furnish a personal bond in a sum of Rs. 25,000/- each and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant for leave, the accused-appellant, on the receipt of notice thereof, shall appear before the Hon’ble Supreme Court as and when called upon to do so. 25.2. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith. 26. This Court is thankful to Mr. Divik Mathur, who has rendered his assistance as an Amicus Curiae, on behalf of the accused-appellants, in the present adjudication.