Darab Singh and Others vs State of Rajasthan

Surendra Nath Bhargava, J.—This criminal appeal has been directed against the judgment dated 16-9-1987 passed by the Sessions Judge, Bharatpur, convicting and sentencing the accused appellants as under:

Darab Singh Laxman Singh under Sections 302 & 120, IPC -- Life imprisonment Ratan Singh u/s 201, IPC -- 2 years R.L Smt. Suman u/s 120B, IPC -- Life imprisonment

A written report, (Ex. P 9) was submitted by Gajju at Police Station, Ucchain, on 5-8-1984, stating that an unidentified dead body of a person was lying near the railway track. On the basis of this report, FIR No. 1/84 was registered and proceedings u/s 174, Cr. PC. Lateron, the matter was referred to Police Station Sevar as the place of incident fell within the jurisdiction of that Police Station. Later on, the clothes and the Chappal of the deceased were identified to be that of Ram Khiladi and, therefore, a case u/s 302, IPC was registered vide FIR No. 102/84. The police started investigation. During the course of investigation, accused Smt. Suman was examined and her statement u/s 164, Cr. PC was also recorded which has been marked Ex. P 29, on 7-4-1984, wherein she stated that nearly one month ago, Darab Singh came to her house at about 12 or 1 in the night and subdued her husband while he was sleeping and asked her not to cry, or make noise, otherwise she would also be murdered. Thereafter they took away her husband and she did not disclose it to anyone.

Later on, it appears that Smt. Suman was also made an accused by the police on 30th June, 1984.

A challan was submitted against all the four accused persons before the Magistrate who committed the case to the court of Sessions. Learned Sessions Judge, after trial, convicted and sentenced the accused appellants as aforesaid. Hence, this appeal.

Prosecution in this case, has not examined any eye witness, and has placed reliance only on the following circumstances:

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Prosecution examined as many as 18 witnesses. Accused Darab Singh pleaded alibi, where as other three accused persons denied tie prosecution case. Darab Singh accused had examined DW 1 Ram Chandra Joshi in defence, to support his plea of alibi.

Learned trial court has not placed reliance on Circumstance No. 4 regarding extra judicial confession (Para 49 of the judgment of the trial court). Trial court has also not placed reliance on Circumstance No 6 regarding recovery of some articles at the instance of the accused persons (vide para 53). As regards circumstance No. 5 with regard to the fact that the accused persons had pointed the house of Ram Khilari as the place of incident, we do not think that this can be at all a circumstance which could possibly implicate any of the accused persons for the crime for which they are charged.

Coming to circumstance No. 1 with regard to illicit relations between accused Smt. Suman and Darab, and regarding the incident which had happened six months earlier in which there was some altercation between Ram Khilari deceased and Darab Singh accused. Ram Khilari had inflicted 2 or 3 blows by umbrella on the head of Darab Singh as a result of which blood also came out, and accused Smt. Suman and Darab Singh had told that Ram Khilari will also meet the same fate. This circumstance, even if believed in toto, as narrated by the prosecution, loses weight in view of a positive statement of Ram Behari PW 4 brother of the deceased who has stated in his cross examination "relations between Darab Singh and Ram Khilari were very cordial till the end", and therefore, this circumstance does not help us in bringing the guilt home to the accused persons. This circumstance only shows that both Darab Singh and Ram Khilari along with his wife Smt. Suman, cannot be said to be very respectable persons because of the illicit relationship between the accused Darab Singh, and Smt. Suman, and accused persons were trafficing in girls and they did not agree with the decision of the Panchayat. The illicit relations could not be the immediate cause of the incident because even according to the prosecution case, they were having illict relations for the last 3-4 years and the threat given out by Darab Singh and Smt Suman six months earlier could also not give any occasion for the alleged incident.

We have also examined prosecution evidence in connection with these two circumstances and we are also of the opinion that these two circumstances are of no avail and cannot be used for bringing the guilt home to the accused persons.

As regards circumstance No. 2, PW 4 Ram Behari, brother of the deceased Ram Khilari, has stated that he had seen the accused Darab Singh, Laxman and 2 others at about 12 or 1 in the mid night. On enquiry Darab Singh told him that they were going to catch Ram Khilari and Smt. Suman told that Ram Khilari had gone out in the field. This circumstance, even if believed, cannot be said to be evidence of last seen in any sense because Ram Behari does not say that he had seen Ram Khilari in the company of the accused persons. PW 4 Ram Behari is the brother of the deceased. He came to know about the death of his brother but he remained silent and did not give out the details to anyone and revealed this fact also for the first time to the police u/s 161 Cr. PC which was recorded on 2-4-1984 nearly after a month of the incident. This conduct on his part is most unnatural and renders his testimony highly improbable and unbelievable. PW 4 Ram Behari states that he could identify Darab Singh only by his voice which makes his evidence still weak.

Learned Counsel for the appellants has placed reliance on a decision of the Supreme Court in Lakhanpal v. State of MP 1980 SCC 726 where in their Lordship observed that the mere fact that the accused was last seen with the deceased, does not lead to an irresistible inference that he committed murder. Even if this circumstance is believed in the present case, it does not amount to the evidence of last seen.

Now coming to Circumstance No. 3, Prosecution has examined PW 6 Bhojpal who has deposed that he had seen the accused persons and one Shibbo in the night, near the house of Ram Khilari. On enquiry, he told that one day he was going to his Village, he passed through the near by house of Ram Khilari and met four persons. He asked them as to who were they, whereupon Darab Singh and Shibbo stated that ''you do not know us''. They were followed by Laxman and Ratan accused Suman was following them. A ''Gathari'' was also lying there and when he asked Darab Singh as to what was in the Gathari, Shibbo and Darab Singh told that Ram Khilari was inside the Gathari. At that time, Laxman and Ratan had lathi in their hand but he could not say definitely whether it was lathi or a gun. When he asked them as to where they were taking the Gathri, Shibbo and Darab Singh told that they were taking it to the Railway track, and at that time, Shibbo and Darab Singh were having Katta in their hand. They asked PW 6 Bhojpal that if he will tell this thing to anybody else, he will also be murdered and thereafter, he came to his house. The statement of PW 6 Bhojpal has not been supported by any other evidence and Bhojpal is the solitary witness about this. His statement was recorded u/s 161 Cr. PC (Ex. D. 2) on 7-4-84 wherein this story of Gathri, etc. is missing altogether. It was only on 17-8-1984 when his statement u/s 164 Cr. PC (Ex. D. 3) was recorded that the story regarding Gathri has been disclosed by PW 6 Bhojpal More over this witness has admitted that he went to his village again after ten or 12 days when he came to know that there was hue and cry in the village and Ram Khilari was not available. At that time, he had told about this incident to the villagers but he has admitted in his cross-examination that he did not make any report to the police nor gave any statement to the police in the connection. In such state of affairs, the story regarding seeing the Gathri and being told by Darab Singh that they were taking Ram Khilari in the Gathir, cannot be believed. This is an after thought and seems to be made up one. Moreover, if his statement is believed, then Shibbo was equally guilty like other accused persons, because he was also present and was carrying the Gathri along with Singh but he police did not make Shibbo an accused and did not file even Darab challan against him.

In this view of the matter, this circumstance is also held not proved against the accused appellants.

Circumstances No. 7 is regarding the creation of false alibi by Darab Singh. This circumstance, even if of any consequence, is only with regard to the accused Darab Singh and does not implicate other accused persons. The accused had examined DW 1 Ram Chandra in support of his alibi. Learned trial court has not believed his statement and therefore, he has not held that Darab Singh has been able to prove his alibi.

Learned Counsel for the appellants has placed reliance on Sharad Birdhichand Sarda Vs. State of Maharashtra, where their Lordships in a very lengthy judgment, in para 157, observed that falsity of defence version does no provide an additional link to the prosecution and the accused is no obliged to prove his innocence and merely because, he has not been able to prove his innocence, he cannot be held guilty of the offence charged.

Learned Counsel for the appellants has also drawn our attention to Hanumant Vs. The State of Madhya Pradesh, which has been followed in Tufail v. State of U.P., (1969) 3 SCC 198 and again in Ram Gopal v. State of Maharashtra 1972 SCC 656. All these judgments have been again followed in Sharad (supra). Wherein their Lordships after discussing earlier Supreme Court decisions, have laid down the following five principles:

[1] the circumstances from which the conclusion of guilt is to be drawn should be fully established.

[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.

Similar view has been expressed recently in a Supreme Court judgment reported in 1988 2 SVLR 80.

Applying the aforesaid five principles to the facts and circumstances of the case, we are of the opinion that the prosecution has miserably failed in bringing the guilt borne to the accused persons. The circumstances of the present case cannot be said to be conclusive in nature and tendency. They do not exclude every possible hypothesis except the one against the accused. There is no chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and does not show that in all human probability the act must have been done by the accused persons. Accused Suman who was initially taken as an eye witness was later on implicated as an accused and the prosecution has given up the original story given by Smt. Suman.

In this view of the matter, we are inclined to allow this appeal, quash and set aside the judgment passed by the trial court, convicting and sentencing the accused appellants. The appellants are acquitted of all the charges levelled against them. They are in jail. They should be released forthwith, if not required in any other case.