Bhavan vs State Of Rajasthan

The instant appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Bhavan against the judgment dated 22/08/2013, passed by learned Sessions Judge, Banswara in Sessions Case No.151/2011, whereby the accused-appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 5,000/-, in default of payment of fine further to undergo two months simple imprisonment.

Facts in brief :

A verbal information (Ex.P.8) was given by Hukiya @ Sukh Lal (PW.3) to the SHO, Police Station Aabapura at Village Goda on 27/10/2011 alleging interalia that after having dinner, his father Gendal went to the Well situated in their field. It was a routine that his father used to sleep in their agriculture field near the Well and used to come back at 5 a.m. in the morning. When his father did not return home, he went and looked for his father but could not find him. His mother also joined him in the search and found that near the newly instituted tubewell, his father was lying on the cot with a bed-sheet covering his body and face. On removing the same, they saw that there were injuries by sharp edged weapon and his face was ensanguined. Immediately, the other members of the family were informed on telephone. Ramanlal and other persons staying in the vicinity came on the spot and the police were informed. The previous year, electric motor of Naaku was stolen during the Gotiya Aamba Fair and the allegation of the same was foisted upon his father Gendal. 8 days' ago, Naaku called the Panchayat of the village and they entered a compromise wherein Rs.11,000/- were agreed to be paid by his father to Naaku within a period of fifteen days. On the same day, the present appellant had fought with his father Gendal and had threatened to kill him by throwing him in the Well. He suspected that the present appellant and Naaku inflicted injuries by sharp edged weapon to his father and murdered him.

On the aforesaid verbal information, a formal FIR No.166/2011 was registered against the accused for the offence under Section 302 IPC at the Police Station Aabapura, District Banswara.

After completion of investigation, police filed a charge-sheet against the accused-appellant for the offence under Sections 302 IPC.

Learned Trial Court framed, read over and explained the charges for the offence under Section 302 I.P.C to the accused appellant who denied the charge and sought trial.

During the trial, the prosecution examined as many as 16 witnesses and 17 documents were exhibited.

The accused-appellant was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was innocent and falsely implicated in this case.

Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 22/08/2013. Hence this appeal.

We have heard learned counsel for the appellant and the learned Public Prosecutor.

Shri Parikshit Nayak, learned counsel for the appellant has vehemently submitted that there is absolutely no evidence in the present case by which it can be inferred or deduced that the present appellant is connected with the commission of the offence alleged. There is no evidence on record which shows that the fatal injuries were inflicted by the appellant. Also there existed no strong suspicious grounds on the basis of which the appellant could have been arrested as the finger of suspicion was pointed in the FIR against Naaku whose electric motor was stolen and ultimately the matter was settled in the Panchayat held by imposing a fine upon the deceased. The present appellant was not even remotely connected with the incident of theft of the electric motor. He further submits that there was no motive on the part of the appellant to kill Gendal.

He also submitted that the present appellant has been falsely implicated by the police in the present case by foisting false recoveries. He further submits that the timings on the memos prepared for the recovery of articles show that the same were planted and concocted and are not worth reliance so as to uphold the conviction of the appellant.

He further submits that merely on the basis of the recoveries without there being any substantive direct evidence on record in a case of murder, an accused cannot be held guilty for a charge of murder. As per him, in the case at hand, since there is no substantive evidence to connect the accused with the crime, his conviction recorded on the basis of mere recoveries is liable to be set-aside.

On the strength of the submissions made above, learned counsel appearing for the appellant has prayed that the present appeal deserves to be allowed and the appellant is entitled to be acquitted of the charge levelled against him by setting aside the judgment dated 22/08/2013 passed by learned trial Court.

Per contra, learned public prosecutor, while admitting the fact that there is substantive and direct evidence or eye witness to prove that it was singularly the appellant who inflicted the fatal blows to the deceased Gendal has fervently supported the judgment dated 22/08/2013 on the strength of the recovery of the weapon of offence i.e. iron kosh vide Ex.P.9 on the information supplied by the accused appellant under Section 27 of the Evidence Act (Ex.P.13), the FSL Report (Ex.P.15) showing the presence of human blood of 'B' group on the samples sent for examination including the weapon of offence i.e. Iron Kosh. He, therefore, prays that learned trial Court after analyzing the evidence on record and appreciating the facts in the present case has rightly convicted the appellant vide judgment dated 22/08/2013 and the same is not liable to be interfered with by this Court.

We have considered the submissions made at bar and have closely scrutinized the record of the trial Court.

PW.3 Hukiya @ Sukhlal stated before the trial Court that after having dinner his father Gendal as a routine used to go and sleep in the agriculture field near the Well at around 9 p.m and came back in the morning. When his father did not return home in the morning next to 26.10.2011, he along with his mother went to look out for him. On reaching their agriculture field, they saw his father lying on a cot with a bed-sheet covering his body. On removing the bed-sheet, they saw that there were multiple injuries on his head and was bleeding profusely. They informed Ramanlal Sarpanch who further informed the police. Prior to this incident, an electric motor of Naaku was stolen and the allegation of theft was levelled by Naaku on his father. His father also agreed to pay Rs. 12,000/- to Naaku in connection with the theft of electric motor. Eight days prior to this incident, Bhavan threatened his father that he will kill and throw him in the Well. He saw Bhavan and Baldev going together on a motorcycle at around 4 p.m. on the date of incident. He stated that his father had been murdered by Bhavan, Baldev, Naaku and Sukhlal. Thus, manifestly this witness did not give any direct evidence so as to connect the appellant except the threat allegedly given by him to the deceased for which we find no reason.

PW.5 Dhanji and PW.6 Vaal Singh were the witnesses of the recovery of the weapon of offence.

PW.7 Ramanlal affixed his signatures on some of the memos prepared by the police.

PW.9 Dr. Ravi Upadhyay who conducted autopsy upon the dead body of the deceased described the dimension and the nature of injuries on the body of the deceased and stated that all the injuries were ante mortem and were sufficient to cause death in the ordinary course of nature.

PW.13 Narendra Singh is the Police Officer who investigated the matter. During the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law and submitted the charge sheet before the Court of competent jurisdiction. He stated that he went to the spot and recovered the weapon of offence at around 9 a.m. in the morning where they had to walk to a distance of about half a kilometer and the proceedings of recovery were conducted for almost one hour.

PW.14 Smt. Jhuma deposed that the allegation of theft of electric motor on her husband was levelled by Naaku and the Panchas in the Panchayat held for this purpose had directed her husband to pay Rs. 12,000/- to Naaku. On the date of incident at around 5 p.m. accused Bhavan had threatened her husband that he will kill him and throw his body into the Well.

Postmortem Report is Ex.P.10 wherein the cause of death was shown as "compound fracture of skull". The recovery of weapon of offence i.e. Iron Kosh is Ex.P.9 and the information given by the accused appellant under Section 27 of the Evidence Act is Ex.P.13. FSL Report is Ex.P.15 wherein the blood of 'B' group was found on the samples sent for examination.

We find that present is a case of circumstantial evidence as there is no direct evidence or eye witness who had seen the occurrence / incident involving murder of Gendal. Since, there is no direct evidence so as to establish involvement of the present accused appellant in the commission of offence alleged, as a corollary, the chain of circumstances is required to be considered closely in the present case. We find that the prosecution case hinges upon only two factors. Firstly, a strong suspicion has been raised constituting the motive to commit the offence by the appellant that he had threatened the deceased by linking the same with the incident of theft of electric motor of Naaku. It is beyond comprehension that if the deceased had stolen electric motor of Naaku and the matter was resolved in the Panchayat wherein the deceased agreed to pay Rs. 12,000/- in lieu of the electric motor allegedly stolen by him then why the present accused-appellant would threaten the deceased Gendal. If at all there was any cause of grievance then the same existed for the same matter with Naaku and not the accused appellant in the present set of facts. Therefore, theory of threatening and motive is liable to be and is hereby discarded.

The Hon'ble Supreme Court in the case of Sonu @ Amar Vs. State of Haryana reported in 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.

The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

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.

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."

In Sudesh Singh v/s. 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. 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".

Secondly, in the sequence of events, the prosecution has based its case against the appellant on the basis of the recovery of bloodstained articles. Admittedly, no ocular evidence is available in the present case, but the prosecution has relied upon the recoveries.

Further, it has come in the arrest memo of the accused (Ex.P.6) that there were injuries on the body of the accused, therefore, possibility of his own blood having stained apparel including the jeans recovered cannot be ruled out. It is also an admitted position that the blood group of the accused was not tested, therefore, the possibility of that blood group of the accused himself is 'B' cannot be ruled out. Even otherwise, recovery of the bloodstained clothes is only a corroborative piece of evidence which can be used to support the evidence which is substantive in nature. We also note that there is no substantive piece of evidence in the present case which can be corroborated with the bloodstained clothes and the weapon of offence recovered by the Investigating Agency. Therefore, the FSL Report showing presence of blood group 'B' on the articles sent for examination does not help the prosecution in any manner.

A perusal of the statement of the Investigating Officer Narendra Singh (PW.13) and recovery memo (Ex.P.9) shows that timings are not matching as in the statement of PW.13 Narendra Singh, he stated that for effecting the recovery of the weapon of offence, they reached the spot at around 9 a.m., whereas the recovery memo is showing the time of 11 a.m. Hence, the recovery effected in the present case does not inspire confidence.

Our view is supported by the judgment of Hon'ble Supreme Court in the case of Mustkeem V/s State of Rajasthan reported in AIR 2011 SC 2769 wherein the Hon'ble Supreme Court has held as under:-

"23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder".

Keeping in mind the above principles we are of the view that the evidence available on record is not sufficient to hold the appellant guilty of the offence under Section 302 IPC in the present case.

In view of the discussion made above, the present appeal is allowed. The judgment dated 22/08/2013 passed by learned Sessions Judge, Banswara in Sessions Case No.151/2011 is quashed and set aside. The accused appellant Bhavan is acquitted of the charge for the offence under Section 302 IPC by giving him the benefit of doubt. He shall be released from the judicial custody forthwith if not wanted in any other case. The record of the trial Court be returned forthwith.