Harlal and Others vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 14.11.2006 passed by the Additional Sessions Judge (Fast Track) No. 1, Ajmer both the appellant, Harlal and the State of Rajasthan have filed two different appeals before this court. While Harlal has filed D.B. Criminal Appeal No. 1257/2006, the State of Rajasthan has filed D.B. Criminal Appeal No. 1606/2007. Since both these appeals arise from the same impugned judgment, they are being decided by this common judgment.

By the said judgment, the learned Judge had convicted Harlal for offence under Section 302 IPC, but had acquitted him for offence under Section 201/34 IPC. The learned Judge had further acquitted the co-accused, Smt. Manna @ Mannudi, for offences under Sections 302/34 and 201/34 IPC. By an order of even date, for offence under Section 302 IPC the learned Judge had sentenced Harlal to life imprisonment, had imposed a fine of Rs. 1000/-, and directed to further undergo six months of simple imprisonment in default thereof.

Briefly, the facts of the case are that on 28.7.2005, at 6:15 AM, the Police Station, Gegal received a telephonic information that someone had killed Sohan Singh and his dead body is lying in the village. Having given this information, the person disconnected the phone. Upon this information, the SHO, Rajveer Singh (P.W.10), proceeded to the village. At the village, Pratap Singh Rawat (P.W.1) submitted a written report (Ex. P.1). When translated into English, the written report reads as under:

"To,

The SHO, Police Station Gegal, District Ajmer.

Sub.: For initiating legal proceedings.

Sir,

It is humbly submitted that today, on 28.7.2005, I was at my house. Around 5:30 AM I heard the sounds of a woman crying in the house of Sohan Singh. I went to the house of Sohan Singh. I found Sohan Singh''s wife crying. Sohan Singh was lying on a Charpoi in the courtyard. On the right side of his face, near his ear, there was an injury with a sharp edged weapon. There was blood lying around the Charpoi. Someone had killed Sohan Singh with a sharp edged weapon while he was sleeping. The moment I came to know, I called the police station. I am submitting this report so that legal action can be taken.

Sd/-"

On the basis of this written report (Ex. P.1), the police chalked out a formal FIR (Ex. P.25), namely FIR No. 92/05, for offences under Sections 302, 201 IPC and initiated the investigation. After completing the investigation, the police had submitted a charge-sheet against both Harlal, the brother of the deceased, and Manna @ Mannudi, the wife of the deceased, for offences under Sections 302, 201 read with Section 34 IPC. The case was committed to the Sessions Court, wherefrom it was transferred to the learned Judge. The learned Judge framed the charges for offences under Sections 302, 201 read with Section 34 IPC. Both Harlal and Manna @ Mannudi, pleaded innocence, and claimed trial. In order to substantiate its case, the prosecution examined ten witnesses, and submitted thirty-seven documents. In his statement recorded under Section 313 Cr.P.C., Harlal explained the presence of blood on his clothes. According to him, while he was taking care of the body of his brother, Sohan Singh, the blood was soaked by his clothes. In turn, the defence examined Budha Singh (D.W.1), the father of both the deceased, Sohan Singh, and the appellant, Harlal; it submitted a single document. After completion of the trial, the learned Judge convicted the appellant, Harlal, as mentioned above, and acquitted Harlal of charges under Section 201/34 IPC and acquitted Manna @ Mannudi for offences under Sections 302 and 201/34IPC. Hence, aggrieved by his conviction and sentence, Harlal has filed an appeal; aggrieved by the acquittal of Harlal for offence under Section 201/34 IPC, and by the total acquittal of Manna @ Mannudi, the State has come before this court.

Even though no one has appeared on behalf of the appellant, Harlal, but considering the fact that both the appeal filed by Harlal and the appeal filed by the State of Rajasthan have been pending before this court for the last eleven years, no substantial purpose would be served by keeping both these appeals hanging fire in this court. Having examined the record and having perused the impugned judgment, this court is of the opinion that the prosecution has failed to prove its case stoutly against the appellant, Harlal, for the following reasons:

Undoubtedly, the present case is based on circumstantial evidence. The principle governing appreciation of evidence in circumstantial evidence is, too, well known. Relying on the case of Hanumant Vs. The State of Madhya Pradesh, , recently in the case of Vasant Sampat Dupare Vs. State of Maharashtra, , the Hon''ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence as under:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 7. Therefore, while appreciating the evidence in the present case, these principles will have to be kept in mind.

The trial court has relied on the following circumstances for convicting Harlal: firstly, Mannudi was not the real wife of Sohan Singh, but had come to him through Nata tradition (Nata tradition is a marriage performed in Rajasthan in certain tribal communities whereby the husband can take a second wife although the first wife continues to live and although no divorce has taken place).

Secondly, Harlal happens to be the real brother of Sohan Singh. Therefore, an illicit relationship had developed between Harlal and his Bhabhi (sister-in-law), Mannudi.

Thirdly, upon an information given by Harlal (Ex. P.33) a Kulhadi (Axe) was recovered by recovery memo (Ex. P.7). Moreover, upon an information given by him his blood stained shirt was also recovered.

Fourthly, according to the FSL Report (Ex. P.35), the Kulhadi and the shirt, recovered at the instance of the appellant, contained blood group ''AB''. Similarly, the shirt of the deceased, and the Gudadi (quilt) also contained blood group ''AB''. Therefore, the Kulhadi and the shirt of the accused contained the blood group ''AB'' of the deceased.

Fifthly, despite the murder of his own real brother, the accused, Harlal, did not inform the police.

Lastly, on the fateful night between 27.7.2005 to 28.7.2005 he was present in his house, yet no explanation has been given by him about the murder of his real brother.

Mr. N.S. Dhakar, the learned Public Prosecutor, has vehemently contended that all the circumstances, mentioned above, unerringly point to the guilt of the accused. Therefore, the learned Public Prosecutor has supported the impugned judgment.

Heard the learned Public Prosecutor, perused the impugned judgment and examined the record.

As far as the illicit relationship between Harlal and Mannudi is concerned, not a single prosecution witness has stated about the same. Neither Smt. Koya Devi (P.W.3), the mother of Harlal, nor Budha Singh (D.W.1), the father of Harlal, nor Smt. Teeji (P.W.6), the aunt of Harlal, deposed before the court that there was any illicit relationship between Harlal and Mannudi. Hence, the prosecution has failed to prove the illicit relationship between Harlal and Mannudi. Thus, the element of motive is conspicuously missing from the present case.

According to Rajveer Singh (P.W.10), during his police custody, Harlal had given an information (Ex. P.33) that he could get a Kulhadi and his blood stained clothes recovered. Consequently, a Kulhadi was seized by recovery memo (Ex. P.7) and a blood stained shirt was recovered by recovery memo (Ex. P.8). Only Pratap Singh Rawat (P.W.1) has supported the said recovery, but not Khoom Singh (P.W.2). Khoom Singh (P.W.2) has turned hostile. The said Kulhadi and the blood stained clothes were sent to the FSL for its report. However, according to the FSL Report (Ex. P.35), the Kulhadi and the bushirt both had blood ground ''AB''. Similarly, the Gudadi (quilt), which was recovered from the place of the occurrence, also had the blood group ''AB''. However, the prosecution has failed to prove that the blood ground ''AB'' belongs only to the deceased, and not to the appellant. Considering the fact that the appellant happens to be the real brother of the deceased, a grave possibility does exist that both the brothers shared the same blood group.

In the case of Prakash v. State of Karnataka [(2014) 12 SCC 133], the Hon''ble Apex Court has observed as under:--

"41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash''s seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash''s clothes were those of Gangamma''s blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh. P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash''s clothes were his own blood stains and that his blood group was also AB." 19. Therefore, mere presence of either human blood on the Kulhadi and presence of blood ground ''AB'' on the clothes of the deceased and on the clothes of the appellant, still would not lead to the conclusive inference that the appellant has committed the alleged crime.

The prosecution has also harped on the fact that the appellant did not inform the police. However, the written report filed by Pratap Singh Rawat was filed immediately after the alleged murder, and in the early hours of the morning. Since the appellant''s brother was killed, since he may have been busy in looking after his own family, since the neighbor had already lodged an FIR, therefore, the conduct of the appellant cannot be suspect only on the ground that he had failed to lodge the FIR. In fact, in law there is no requirement that only the victim of a crime has to file the FIR. The FIR can also be lodged by any other person. After all, the purpose of lodging of an FIR is merely to set the criminal law in motion.

Merely because the appellant has failed to explain as to how Sohan Singh was killed within the house, the mere non-explanation may create a strong suspicion against the appellant. But no matter how strong the suspicion may be, it cannot take the place of proof.

Hence, for the reasons stated above, this court is of the opinion that the prosecution has failed to prove its case beyond a reasonable doubt. Therefore, this court has no option but to give the benefit of doubt to the appellant.

State of Rajasthan v. Harlal and Anr. (D.B. Criminal Appeal No. 1606/2007)

The State of Rajasthan is aggrieved by Harlal''s acquittal for offence under Section 201/34 IPC, and by the acquittal of Manna @ Mannudi for offences under Sections 302/34 and 201/34 IPC.

The learned Public Prosecutor has contended, firstly, that due to the illicit relationship between Harlal and Mannudi, both of them had decided to get rid of Sohan Singh, the deceased.

Secondly, upon a statement given by Mannudi under Section 27 of the Evidence Act (Ex. P.34), a blood stained pair of Chappal, and the Gudadi (quilt) were recovered from her house. According to the FSL Report (Ex. P.35), the Gudadi had blood group ''AB'' which was the blood group of the deceased. Therefore, the prosecution has well established its case against Mannudi. As far as the offence under Section 201/34 IPC is concerned, the learned counsel has frankly conceded that there is no evidence to show that the accused-respondent had tried to make the evidence of crime disappear.

It is true that the appellate court does have the power to reassess the entire evidence even while dealing with a judgment of acquittal. But it is equally a settled principle of law that an appellate court will not interfere with a judgment of acquittal where the view taken by the learned trial court is a plausible one. Even if there are two views of the evidence produced, and one of them has been adopted by the learned trial court, the appellate court will not interfere even in such a situation.

In the case of Sudershan Kumar Vs. State of H.P., , the Hon''ble Supreme Court has held as under:

"29. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal Vs. State by Public Prosecutor, Madras, is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 39, propositions laid down in an earlier case are taken note of as under:

"39. In Chandrappa and Others Vs. State of Karnataka, , this Court held:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Thereafter, in para 41, the Court culled out five principles and we would like to reproduce the said para hereunder:

"41. The following principles emerge from the cases above:

The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court''s acquittal bolsters the presumption that he is innocent.

The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court''s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

The appellate court may only overrule or otherwise disturb the trial court''s acquittal if it has "very substantial and compelling reasons" for doing so.

If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused."

In the present case, according to the information given by Mannudi (Ex. P.34), she had claimed that she could get blood stained pair of Chappal recovered. But according to the recovery memo (Ex. P.4), "a ladies Chappal of Venus company was recovered". However, the Chappal did not have any blood stains upon it. Therefore, the Chappal was not even sent to the FSL for its examination. Hence, the learned Judge was certainly justified in concluding that there is no linking evidence to connect Mannudi to the alleged crime.

As discussed above, there is no evidence to show that Mannudi had any illicit relationship with her brother-in-law, Harlal. And this illicit relationship formed the motive for killing Sohan Singh.

Therefore, the view taken by the learned Judge is certainly plausible. Hence, the impugned judgment qua the acquittal of Harlal for offence under Section 201/34 IPC and qua Smt. Manna @ Mannudi for offences under Section 302/34, 201/34 IPC is uncalled for. Hence, the appeal filed by the State is devoid of any merit and is, hereby, dismissed.

As discussed above, the appeal filed by the accused-appellant, Harlal, is hereby, allowed. He is acquitted of the charges leveled against him. Since he is in judicial custody, he shall be released forthwith, if not wanted in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely Harlal, 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 effective 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.