Diwan Singh vs State of Rajasthan

REPORTABLE

By way of this appeal, judgment dated

31/08/1988 passed by Additional Sessions Judge, Rai Singh

Nagar, District Sriganganagar in Sessions Case No.66/1986 has

been challenged and according to said judgment, both the

appellants-accused have been sentenced under Section 302 / 34 of

IPC to life imprisonment with a fine of Rs.500/- and in default to

undergo rigorous imprisonment for one month.

In brief, the story of the prosecution, which has

been narrated in the F.I.R, reads as under :-

"VERNACULAR MATTER OMITTED"

Besides both the appellants, their mother Smt.

Jindo Bai was also included in the list of the accused persons, who

died on 18/11/1986, while under judicial custody, so the

proceedings were abated against her, both the appellants-accused

were charge-sheeted under Sections 302, 498A read with Section

34 of IPC . Learned trial Court charged both the accused persons

under Sections 302, 498A read with Section 34 of IPC and trial

was conducted. Prosecution produced eleven witnesses and the

trial was culminated in conviction through the impugned

judgment.

Heard arguments of both the sides, learned

counsel for the appellants has empathetically argued that after the

demise of main accused Smt. Jindo Bai, charge under Section 34

of IPC becomes redundant and does not survive. Relying on

judgment of State of Maharashtra vs. Eknath Yeshwant

Pagar & Anr, AIR 1981 Supreme Court 1571, it has been

contended that charge under Section 34 pertaining to common

intention since does not survive, so the judgment passed by

learned trial Court is liable to be set aside. Learned counsel has

further argued that prosecution has failed to adduce reliable

evidence and so far as the question of extra judicial confession is

concerned, it is also not worthy to be relied because the same is

invented and nothing of that kind ever been existed and evidence

to this effect is concocted because the police statements of PW.4

Shankar Singh have been recorded on 21/08/1986, whereas said

incident belongs to 15/08/1986. All the prosecution witnesses are

close relatives and their testimony is not worthy to be relied, kind

of allegations, which have been levelled, do not comprise with any

offence of alleged cruelty. Medical evidence also does not prove

the alleged offence and prosecution has failed to establish case

and no iota of positive evidence is there, so the appeal be allowed

and the impugned judgment be set aside.

On the contrary, learned public prosecutor has

submitted that the prosecution has produced reliable evidence

supported with medical evidence, taking support of Jamnadas

vs. State of M.P ., 2016 3 Crimes (SC) 168, learned public

prosecutor has contended that all the prosecution witnesses have

narrated woe of cruelty meted out against the deceased and

deceased was eliminated by all the three accused persons, one

amongst them unfortunately died during the course of

investigation and there is no error in the findings of learned trial

Court, so the appeal be dismissed.

Perused the record and examined the evidence,

evidence available on the record reveals that PW.1 Makhan

Singh complainant has narrated that Ex.P.1 FIR and Ex.P.2

chalked F.I.R were lodged by him, which contains his signatures,

but he has contradicted several vitals of his police statements and

earlier lodged version relating to "suicide" as disclosed in the

F.I.R that his sister committed suicide, which is distinctly averred

in the F.I.R and has said that :-

"VERNACULAR MATTER OMITTED"

PW.1 Makhan Singh has stated a crucial fact in his

statements as well that the room in which the dead bodies were

found was broken upon and uprooted door was there since he has

said :-

"VERNACULAR MATTER OMITTED"

Statements of investigating officer PW.10 Rajpal Singh

are also important as this witness has said that :-

"VERNACULAR MATTER OMITTED"

Regarding suicidal version, which is mentioned in the

F.I.R this witness has said that :-

"VERNACULAR MATTER OMITTED"

Spot map and site map Ex.P14 and Ex.14A also

confirms and verifies this version that the door of that room was

opened uprootedly and it was found locked from inside and this

aspect is mentioned in Ex.P.14A:-

"VERNACULAR MATTER OMITTED"

and while referring spot map Ex.P.14, it has been

further observed in the description that :-

"VERNACULAR MATTER OMITTED"

Entire evidence of the prosecution reveals that no

injury of any kind except the mark of strangulation was found on

the body of the deceased persons.

PW.9 Dr. Man Mohan Singh Bhatia, who has

conducted postmortem on the body of the deceased persons has

specifically said that he conducted the postmortem of the

deceased persons and Ex.P.6 and Ex.P.7 are postmortem reports,

he has further said that apart from ligature mark, no other injury

was found on the body of the Raano and Guddi.

PW.11 Ranjeet Singh Dy.S.P. has also said that no

apparent injury was found on the body of Raanobai except

ligature mark and no injury was found on the body of Guddi.

Ex.P.D6 Panchayatnama and Ex.P.17

Panchayatnama of deceased Guddi shows that no apparent

injury were found on the bodies.

The prosecution witnesses PW.7 Pratap Singh

and PW.8 Jail Singh have become "hostile", notwithstanding

these witnesses have uttered several important factual aspects,

since PW.7 Pratap Singh has said that "it is a matter of one year

back the dispute was betweeen Jindo Bai and Raano Bai Saas-

Bahu" - mother of Raano Bai had come and quelled the cause of

dispute. He has further said that he went there several person

were gathered, neck was having signs of string brother of Raano

Bai visited later after their departure to police station. He has

further said that Diwan Singh and others used to not to harass

Raano, he has further contradicted several versions of his police

statements, while cross-examined, he has said that they all

decided to inform the mishap to the police, so Jail Singh, Avtar

Singh and Diwan Singh and he went to thana Muklawa and gave a

report to thanedar, who got Diwan Singh sat there (detained) and

sent some policemen with us, he has further said that it was

discussed and decided there for visiting to Modikhera, which was

in Punjab, so they requested to give a memo script to facilitate

their visit to Punjab, which is Ex.D.5. Perusal of Ex.D.5, which is

bearing signature of some HC of PS Muklawa with a thana seal

reads as under :-

"VERNACULAR MATTER OMITTED"

which shows that prior to Ex.P1 and Ex.P.2, which have

been registered on 16/08/1986, the matter was already been

brought into the notice of concerned Police Station "Muklawa",

which gave a written memo with noting of ''Morgue'' to facilitate

the complainant-bearers of the memo to visit to the parental

house of deceased Raano Bai to Village Moti thana Sadar Abohar

Punjab and this aspect falsify the entire story of the prosecution

that it was Makhan Singh brother of deceased Raano Bai, who

first went to police station to lodge the F.I.R resultantly it suggest

that whatever happened, was truthfully brought into the notice of

concerned police station, Muklawa by husband of the deceased

accused Diwan Singh alongwith this testimony where the police

authorities got Diwan Singh sat there in custodial way.

This version has also been highlighted and

asserted empathetically by the accused party in their evidence as

well as under the statements made under Section 313 of CrPC. It

has also come in the evidence of this witness Pratap Singh

that both "Saas and Bahu" used to strife and both were of

hot temperament, he has also said that Ujagar Singh, Bhagwan

and Diwan Singh used to pacify them, he has further said that six

months prior to the incident, Ujagar Singh had separated Diwan

and Raanu and one month back Jago Bai came and united them,

he has further said that Raano Bai was disinclined to live unitedly

and was inclined to live separate, which could be a reason for her

suicide by hanging.

PW.8 Jail Singh has become hostile, who in

cross-examination, has reiterated same version that "Saas and

Bahu" used to strife each other. Ujagar, Bhagwan and others used

to pacify them. Six months back, Ujagar separated Diwan and

Raano getting annoyed, one month back Jago Bai came and united

them. He has narrated very important aspect by saying :-

"VERNACULAR MATTER OMITTED"

of

Raanobai is Ex.D.6 and has also said that DSP Saheb, Najam and

all came to the conclusion that death was suicidal by hanging. 11. PW.2 Jago Bai mother of the deceased has also

said that one month back, she had been to her daughter''s home,

Jindo Bai and his daughter used to strife with each other. She has

further said that :-

"VERNACULAR MATTER OMITTED"

In her cross-examination, she has further said

that at the time of her death, statements were taken, Diwan Singh

was there at police Station.

PW.11 Ranjeet Singh Dy.SP who investigated

the matter has said that "prior to delivery of postmortem report,

cause of death was not told to him and the postmortem report

was received on 22/08/1986", he has further said that from

16/08/1986 to 22/08/1986, he did not send any request for

delivery of postmortem to doctor.

Perusal of Ex.D.2 police statement of Smt. Jago

Bai shows that these statements have been taken on 16/08/1986

by Ranjeet Singh, which shows that the matter was registered

under Section 306 of IPC.

Ex.8 Arrest memo of Diwan Singh shows that he

was arrested on 01/09/1986 and it has been said by PW.11

Ranjeet Singh that addition of 302 IPC was made after receipt of

doctor''s report on 22/08/1986, but narration of several witnesses

of the prosecution reveals that Diwan Singh, who had been to

Police Station Muklawa to inform about the unnatural death of his

wife with some other witnesses as discussed above, was already

put under custody and was detained by asking to sit there and this

fact is very much clear from perusal of statement of Jago Bai,

since she too has asserted this aspect in her cross-examination by

saying that "when her police statements were recorded, Diwan

Singh was there at police station and she has also said that after

registering of report, police got her statement, which makes the

entire story of the prosecution candidly false".

PW.2 Smt. Jago Bai has also said that narration of

murder of her daughter is being said by her, on conjectures, she

did not see anything nor have got any knowledge.

PW.3 Kartar Singh father of the deceased has said

that after arriving at in-law''s home of Raano Bai, they inquired

from the villagers, a girl aging ten years, informed him that Diwan

Singh, Bhagwan Singh and Jindo Bai killed his daughter Raano

Bai, then they went to police station and lodged the F.I.R. There

are several contradictions in Ex.D.3 police statements of this

witness, he has also said that said girl had informed him all this

before the police and the girl informed about killers between

eleven to twelve, but prosecution has not produced this alleged

"girl child" witness, who could have been of significant value in

narrating the truth and non-recording of evidence of such witness

and non-inclusion of this witness in prosecution calendar, makes

the story of the prosecution fragile and unreliable.

PW.4 Shankar Singh is a witness through, whom

story of extra judicial confession is introduced, but this witness

has vitally improved his testimony than to his police statements.

He has said that

"VERNACULAR MATTER OMITTED"

but in his cross-examination, he has said that on which

date accused person came to him, date is not remembered to him

and he did not convey any date to the police, he has further said

that it was day of "Friday" and this version is contradictory to the

statements made under Section 161 of CrPC, since it contains that

the alleged confessional say was made on 17/08/1986 on

"Sunday", when he was lying down. He has further said that

"VERNACULAR MATTER OMITTED"

if we weigh this version of his statement, then it

appears to be totally false because on 16/08/1986, postmortem

was conducted, which reveals that death occurred 24 to 34 hours

before the time of postmortem. Police Statements of this witness

have been recorded on 21/08/1986 and he says that his

statements were recorded 12 to 13 days ahead of visit of accused

persons, which too does not match and apparently mismatches, so

it weakens the story of the prosecution and version of extra

judicial confession becomes dubious, there are enormous

contradictions between the police statements and testimony of

this witness, he has also said that Raano Bai was his sister-in-law,

why he withhold revelation of this extra judicial confession, for so

many days after unnatural death of Smt. Raano Bai, also feebles

the prosecution story.

PW.5 Mangal Singh has also said that Gurudayal

Singh, Pratap Singh and four others were gone to police station,

they came back but Diwan Singh was detained by police.

PW.6 Jeet Singh is Mama of deceased Raano

Bai, he has narrated hearsay only and has said that to resolve

dispute a Panchayat was held of five to ten family members, which

decided to send bride.

PW.10 Raj Pal Singh is SHO of P.S. Muklawa,

who registered F.I.R Ex.P.1 and Ex.P.2 and arrested the accused

persons, he has concluded cross-examination by saying that he

did not know with regard to such information that Raano and his

baby committed suicide, which is obviously wrong, because in

police statement of Jago Bai as DW.2 and police statement of

Makhan Singh DW.1 and Police statements of Kartan Singh DW.3

recorded on 1/08/1986, and police statements of Shankar Singh

DW.4 have been recorded on 21/08/1986, specifically been under

Section 306 of IPC, this indicates that witnesses have not come

with clean hands and have withheld veracity, which has marred

the actual truth and story of the prosecution as well.

PW.11 Ranjeet Singh has also said that at the time of

drawing Panchayatnama Ex.D.6, he concluded that the incident

was suicide per cord.

Appreciation and appraisal of entire

aforereferred evidence indicates that prosecution has

miserably failed to establish its case against the accused

persons and no-reliable evidence has been given by the

prosecution to connect the accused persons with the crime.

Door of the room was found bolted with lock from

inside and the door was breakingly uprooted and got opened,

which indicates that it was bolted and locked from inside and was

opened through thorough uprootingly, which weakens alleged

theory of homicide. Diwan Singh with some other neighbours went

to police station to inform the incident, where he was detained,

hostile witnesses PW.7 Pratap Singh and PW.8 Jail Singh have

rather narrated the truth.

Death of two feminine and loss of two lives is

unfortunate but to fasten criminal culpability it is

imperative to produce positive evidence, which could

connect the accused persons with the crime invariably.

As such, there is no direct evidence and in

matters relating to indirect evidence, in Padala Veera Reddy

V. State of Andhra Pradesh, 1989 Supp. (2) SCC 706,

the Hon''ble Supreme Court has observed that in matters of

circumstantial evidence, the evidence must satisfy the

following texts:-

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should 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; and

(4) 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 Varun Choudhary Vs. State of Rajasthan,

2011 Crl.L.J. 675, it has been held that where chain of

events is doubtful, no conviction can be based and it is

settled legal proposition that in a case of circumstantial

evidence there must be complete chain of events which would

lead to a conclusion that the accused was the only person,

who could have committed the offence and none-else. In

Musheer Khan alias Badsah Khan vs. State of Madya

Pradesh, (2010) 2 SCC 748 it has been observed that in

cases of circumstantial evidence complete chain of

circumstances must be looked and snapped or scattered links

is not allege to convict and in Sanatan Naskar Vs. State of

West Bengal, 2010 (3) R.C.R. (Cr.) 629 page 632

(S.C.), it has been held that court below took a wrong view

of the matter, while convicting the accused in a case, where

chain of events of the case was not proved beyond

reasonable doubt.

Though the law State of Maharashtra vs.

Eknath Yshwant Pagar & Anr ., AIR 1981 Supreme Court

1571 on which reliance has been placed by learned counsel for

the appellant has got no relevance in the matter under hand

because that relates to two accused, out of which one remained

no more but in case under hand, there were three accused, main

two accused are surviving and one of the accused being their

mother died.

In Jiten Besra v. State of West Bengal,

(2010) 2 S.C.C. (Cr.) 438 and in Kamla Devi vs. State of

Delhi, 2012 (2) J.C.C. 1457 (Delhi) the Hon''ble Supreme

Court has observed that once it is found that circumstance

could not point out towards guilt of accused, without any

other inference being probable, the accused must get the

benefit of doubt.

In Baijnath & Ors. vs. State of Madhya

Pradesh, 2017 1 SCC 101, Hon''ble the Supreme Court has held

that in the cases of deficiencies of proof, benefit would be

available to the person charged and in Narendra Singh &

Another v. State of M.P ., (2004) 10 SCC 699, the Hon''ble

Apex Court has also held that in event of there being two possible

views, one supporting the accused should be upheld and Hon''ble

the Supreme Court has recognized presumption of innocence as a

human right.

In view of the aforesaid, we are of the

considered opinion that finding of guilt against the accused

appellants is not correct.

Hence, the instant appeal is allowed and

impugned judgment and sentence are hereby set aside and

quashed, accordingly both the appellants Diwan Singh and

Bhagwan Singh are acquitted from the charge/s of Section

302 / 34 of IPC, they are already on bail, so need not to

surrender, their sureties are discharged.

Keeping in view, however, the provisions of

Section 437A Cr.P.C. the accused appellants are directed to

forthwith furnish a personal bond in the sum of Rs.30,000/- and a

surety bond in the like amount respectively, before the learned

trial court, which shall be effective for a period of six months to

the effect that in the event of filing of Special Leave Petition

against the judgment or for grant of leave, the appellants, on

receipt of notice thereof, shall appear before Hon''ble the Supreme

Court.