Chetram vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 11th March, 2005 passed by the learned Additional Sessions Judge, (Fast Track) No. 2, Sikar, the appellant, Chet Ram @ Maghla @ Vinod has sent the present appeal from the jail.

By the said judgment, the learned Judge had convicted the appellant for offence under Sections 302 and 201 IPC. By an order of even dated, the learned Judge had sentenced him as under:--

In a nut-shell, the facts of the case are that on 23rd June, 2004, Tara Chand (PW.3) telephonically informed the Police Station Raghunathgarh that in the village pond called ''Peerawala'', there is a dead body of a man. It seems that he has died of drowning. Upon this information, the police personnel left for the village. At the spot, Kishna Ram (PW.1) gave a written report (Ex. P1) to Toda Ram (PW.23). The report, when translated into English, reads as under:--

"To,

The Station House Officer, Police Station, Raghunathgarh.

Subject: For lodging report regarding murder of my younger brother, Nand Kumar.

Sir,

It is respectfully submitted that on 21st June, 2004 my younger brother, Nand Kumar S/o. Kushala Ram by caste Balai (Riva), resident of Daulatpura, post Katrathal left the house. Today, on 23rd June, 2004, around 6.00 PM, I learnt from the villagers that near Katrathal, in a pond situated at Peerawala a dead body of a man has been discovered. I went to the said place and I saw that the corpse is of my younger brother, Nand Kumar. Someone has killed Nand Kumar on 21st June, 2004 itself and in order to hide the crime has left his body in the pond. Nand Kumar has suffered sharp injuries on his neck. There are other injuries on his body. Santra Devi, the wife of my younger brother Nand Kumar, is a characterless person. Both Chet Ram Balai Birol and Jhabarmal Balai, resident of Badalwas, frequently visit her. I suspect that these persons have killed my brother, Nand Kumar.

Applicant (Kishna Ram Balai) Daulatpura."

Dated: 23.6.2004.

On the basis of this written report (Ex. P.1) the police chalked out a formal First Information Report (Ex. P.26) namely, FIR No. 100/2004 for offence under Sections 302, and 201 IPC.

After a thorough investigation, the police arrested Chetram, the appellant, and Smt. Santra. Both of them were sent for trial. Both were charged for offences under Sections 302, 201 and 120-B IPC.

In order to support its case, the prosecution examined twenty-nine witnesses, and submitted forty-six documents. Although, the defence did not examine any witness, it had exhibited two documents. After completing trial, the learned Judge while acquitting Santra Bai from all the charges, convicted the appellant as aforementioned. Hence, the present appeal before this Court.

Mr. R.S. Tanwar, the learned counsel for the appellant has raised the following contentions before this Court:--

"Firstly, the case is entirely based on circumstantial evidence, but the prosecution has failed to establish its case beyond a reasonable doubt. Secondly, the prosecution has relied on the following evidence to establish its case:- (a) There is evidence of last seen proved by Badri Prasad (PW.8), Prakash (PW.9), and Makhan Lal (PW.24); (b) the appellant had a illicit relationship with Santra, the wife of the deceased; (c) upon an information of the appellant, a knife was recovered by recovery memo (Ex. P.18); (d) upon the statement given by the appellant even the fact of the knife being purchased by him was verified through verification memo (Ex. P.23); (e) according to the FSL report, although not marked as exhibit, the bush-shirt and pant of the deceased, the knife recovered at the instance of the accused, and shirt of the accused had "human blood" on them."

However, according to the learned counsel for the appellant, even if all these pieces of evidence were accepted, even then the prosecution has not covered the distance between "may be true" and "must be true".

On the other hand, the learned Public Prosecutor, Mr. N.S. Dhakad has argued that the evidence produced by the prosecution is sufficient to forge a complete chain of circumstances which unerringly points towards the guilty of the appellant. Hence, the learned Public Prosecutor has supported the impugned judgment.

Heard the learned counsel for the parties, perused the impugned judgment, and examined the record.

Undoubtedly, the present case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh Vs. State of Haryana, (2015) 1 JCC 479 : (2015) 1 RCR(Criminal) 383 . The Hon''ble Supreme Court has observed as under:--

"(1) ...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

(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."

Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case.

In order to prove the case of last seen, the prosecution has examined Badri Prasad (PW.8), Prakash (PW.9), and Makhanlal (PW.24).

According to Badri Prasad (PW.8), on 21.06.2004 he has seen the appellant, Chetram and the deceased, Nand Kumar together out side a Cinema Hall at Sikar. According to him, "both of them were drunk". However, in his cross-examination, he admits that "both of them had gone to attend ''Bhat'' ceremony organised by Ram Swaroop Raiger". He also admits that one Prakash has also accompanied him to the Cinema Hall. However, Prakash (PW.9) has turned hostile, and has not supported the case of the prosecution. But, according to Mukesh (PW.10), a son of the deceased, only he and his mother had gone to the ''Bhat'' Ceremony organised by Ram Swaroop; his father did not come to the ''Bhat'' Ceremony.

Moreover, Makhan Lal (PW.24) claims that Chetram along with another person had come to his jeep. Both of them were drunk and both of them asked him for Rs. 20/- which he did not pay. In the court, he pointed towards Chetram as the person who had asked for Rs. 20/-from him. But in his cross-examination, he clearly admits that "the persons who came to him, he did not know them. Even today, he identified Chetram only on the basis of guess". Moreover, he has admitted that "the police had never asked him to identify the accused in a test identification parade".

A bare perusal of the evidence, quoted above, clearly proves that the testimony of Badri Prasad (PW.8) is not supported either by Prakash (PW.9) or Mukesh (PW.10). While Prakash has turned hostile, Mukesh (PW.10) has clearly stated that his father did not go to the ''Bhat'' ceremony. Even Makhan Lal (PW.24) does not tell us as to who was the other person. Moreover, he is total stranger to Chetram and has identified him on the basis of guess work that for the first time in the Court. Therefore, the evidence of last seen has not been established cogently and convincingly.

According to Surendra Singh (PW.28), during his police custody, the accused had given an information (Ex. P.44)that he would get a knife recovered from a tree near the pond of Peerawala. The said information is Ex. P.44. However, the said information was not taken in the presence of two independent witnesses.

This court in the case of Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014 has held as under:--

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh and Ors. v. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

As decided by this Court In the case of Nand Lal v. State of Rajasthan [D.B. Criminal (Jail) Appeal No. 1150/2006 decided by this court on 25.11.2014], both Section 100(4) CrPC, and Rule 6.24 of the Rajasthan Police Rules, 1965, require that independent persons of the locality should be associated with the search and seizure.

Section 100 CrPC is as under:--

"100. Persons in charge of closed place to allow search.

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by Sub-section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under Sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."

Rule 6.24 of the Police Rules is under :-Searches by police officers.-

"(1) The rules regarding searches by police officers are contained in sections 165 and 156, Code of Criminal Procedure. Notices of search under section 165, Criminal Procedure Code, summons to persons to witness search under section 103(1), Criminal Procedure Code, and search lists under section 103(2), Criminal Procedure Code, shall be prepared in Forms 6.24 (1)(a), (b) and (c) respectively.

(2) An officer incharge of a police station receiving a requisition to search, under section 166, Code of Criminal Procedure, or other law applicable, shall comply without unnecessary delay and shall take all necessary precautions to ensure a successful search.

A police officer making such requisition may attend personally and assist in such search or may send one or more of his subordinates for that purpose.

(3) Circle officers supervising investigation and inspecting officers shall take disciplinary action against investigating officer who carry out searches under section 165, Code of Criminal Procedure, without sufficient justification."

A bare perusal of both the provisions clearly reveal that before making a search, the police is required to associate two independent and respectable inhabitants of the locality, in which the search is to be made.

Moreover, according to the recovery memo of the knife (Ex. 18), the knife was recovered in the presence of two independent witnesses, namely Gheesaram and Subhash Chand. Both of them Gheesa Ram (PW.13) and Subhash Chand (PW.29) have been examined by the prosecution. But both of them have turned hostile. Therefore, they have not supported the recovery. Thus, the recovery of the knife cannot be believed at all.

In order to prove the fact that the knife was, indeed, sold to the appellant, the prosecution has produced Khursheed (PW.15). Khursheed (PW.15) has claimed in his examination-in-chief that he had sold a knife to the appellant for ten rupees. But in his cross-examination, he clearly states that "he does not remember whether the accused had purchased knife from him or not ?" Moreover, "he does not remember those persons who buy goods from him". Furthermore, according to him, "the police had pressurised him to depose in favour of the prosecution. It had promised him that no difficulty would come to him from the police". Considering the fact that he has given his testimony under duress of the investigating officer, the fact remains totally strange to the effect that any knife was purchased by the appellant from Khursheed (PW.15). Considering the fact that the police had not put the appellant for a test identification parade by this witness, the testimony of this witness is highly untrustworthy. Therefore, the prosecution has also failed to prove the fact that a knife was sold by Khursheed (PW.15) to the appellant.

The prosecution has also relied on the seizure memo of pant by recovery memo (Ex. P.8), upon recovery of a shirt at the instance of the appellant by recovery memo (Ex. P.20), and of a knife by recovery memo (Ex. P.18). The Investigating Agency has sent the recovered articles to the FSL through Prabhu Singh (PW.25). Although the FSL report has not been marked as exhibit, nonetheless it was produced before the trial court. But according to the FSL, the articles merely show the presence of "human blood" on the pant and shirt of the deceased, and on the shirt of the accused, and the knife. The FSL could not specify the blood group to which the blood belonged. Therefore, clear finding of the FSL regarding the blood found on the clothes of the appellant, the deceased, and the knife, the weapon of offence is conspicuously missing in the present case. Therefore, the recoveries of the knife and blood sustained clothes of the accused do not connect the appellant to the alleged crime.

It is, indeed, trite to state that the prosecution has to cover the long distance between "may be true" and "must be true". Merely by flashing few pieces of evidence, which are incomplete in their nature and scope, the prosecution does not succeed in establishing its case beyond a reasonable doubt. Even if the prosecution succeeds in creating a strong suspicion against the accused, even then the accused cannot be convicted. For, convictions cannot be based on conjunctures or surmises, or on strong suspicion. The prosecution is required to prove its case through cogent and convincing evidence; each linking evidence has to form a chain which leads to the only conclusion that the crime could have been committed only by the accused person, or persons, and by none other. [Ref: to Vijay Thakur Vs. State of Himachal Pradesh, (2014) AIRSCW 5625 ]

Therefore, for the reasons stated hereinabove, this appeal is allowed. The appellant Chet Ram @ Maghla @ Vinod S/o. Hiralal, by caste Balai, resident of Birol, Police Station, Nawalgarh Distt. Jhunjhunu (Rajasthan), be released, forthwith, if not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely Chet Ram @ Maghla @ Vinod is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) and a surety bond in the like amount, before the trial court. The bonds, so furnished shall be effected for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.