Jashwant Singh S/o Harnam Singh vs State of Rajasthan

In this criminal appeal filed by the appellant, Jaswant Singh

S/o Harnam Singh under Section 374 (2) Cr.P.C ., the judgment

dated 30th of March, 1990 passed by learned Sessions Judge, Sri

Ganganagar, in Session Case No.48/1988 is under challenge. By

the aforesaid judgment, the learned trial court convicted the

accused appellant, Jaswant Singh, for the offences under Sections

302 / 34 and 324 / 34 of IPC and sentence him as under:

302/34 of IPC :- Imprisonment for Life.

324/34 of IPC :- One year''s Rigorous Imprisonment.

As per facts of the case, upon written complaint (Ex.P/1)

submitted by the complainant (PW.1) Kalu Ram (son of deceased)

before the S.H.O., Police Station- Hindumal Kot, Sri Gangangar,

formal F.I.R. No.99/1988 was registered on 03.08.1988 at 06.30

AM against accused appellant Jaswant Singh and one unknown

person. In the FIR following allegations were levelled by the

complainant, which reads as under: -

"VERNACULAR MATTER OMITTED"

After registration of the FIR, regular investigation was

commenced by the SHO, Police Station Hindumal Kot. During

investigation the police went at the place of occurrence and took

the dead body of deceased, Indraj, to the Primary Health Centre,

Shivpura, Distt: Sri Ganganagar, for postmortem, where the

medical officer conducted the postmortem and in the postmortem

report (Ex.P/9) the doctor gave following opinion with regard to

cause of death: -

"In my opinion deceased was died of Hemorrhagic shock due to hemorrhage caused by sharp injuries on neck which caused injury of large blood vessels."

The complainant injured Kalu Ram was medically examined

by the medical jurist and his Injury Report (Ex.P/20) was given to

the investigating officer on the same day, in which three simple

injuries were found upon the person of complainant, Kalu Ram.

As per allegations, the appellant and two other accused

persons, namely, Sher Singh and Dharam Singh @ Dharma were

arrested and after recovery of weapon and collecting evidence,

charge sheet was filed against three accused persons in the court

of Munsif & Judicial Magistrate, Sri Ganganagar, from where the

case was committed to the court of Sessions Judge, Sri

Ganganagar for trial.

In the trial, charge under Sections 302, in the alternative

302/34, and 324/34 of IPC were framed against the accused appellant, Jaswant Singh and other two persons, but they denied

the charges levelled against them, thereafter, an opportunity was

granted to the prosecution to lead evidence to prove the case.

From prosecution side, statements of 10 witnesses were

recorded in support of prosecution case. Thereafter, statements of

all the three accused persons were recorded u/s 313 Cr.P.C ., but

all the three accused denied the allegations levelled by the

prosecution witnesses and pleaded that they have falsely been

implicated in this case. Despite granting an opportunity to lead

evidence, no evidence was led in defence by the accused

appellant.

After recording the evidence of both the parties, the learned

trial court after hearing final arguments of both the parties vide

judgment dated 30.03.1990 acquitted the accused, Sher Singh

and Dharam Singh @ Dharma from the offence u/s 302, 302/34

and 324/34, however, held the accused appellant, Jaswant Singh,

guilty for offence u/s 302/34 and 324/34 of IPC and passed

sentence as mentioned above vide judgment impugned dated

30.03.1990, which is under challenge in this appeal.

Learned counsel for the appellant vehemently argued that

finding of guilt recorded by the learned trial court to convict the

accused appellant for offence u/s 302/34 and 324/34 IPC is not

sustainable in law because as per allegation of complainant

himself, no injury was caused by the accused appellant, Jaswant

Singh to the deceased, although as per allegations of prosecution

he was having 12 bore rifle in his hand, but no gunshot injury was

found upon the person of deceased. Learned counsel for the

appellant argued that prosecution has come out with a specific

case that Jaswant Singh was having a rifle and another man

accompanying him was having ''Barcha'' upon insisting by the

accused Jaswant Singh, and said person caused injury by sharp

edged weapon to the deceased and him but no gunshot injury was

found upon the body of deceased, therefore, the trial court

committed a grave error in holding accused appellant guilty for

offence u/s 302/34 and 324/34 of IPC because his presence is

seriously doubtful.

Learned counsel for the appellant further submit that there is

no independent witness to prove the presence of accused

appellant on the place of occurrence and to corroborate the

allegation of complainant. Learned trial court acquitted two other

accused persons against whom there was allegation for inflicting

injury to the deceased, therefore, it is a case in which complainant

has concocted a false story so as to involve the accused appellant

with the crime. It is also argued that no evidence of motive is on

record but the trial court convicted the accused appellant with the

aid of Section 34 of IPC but the common intention has not been

proved because there is no evidence on record to prove the

motive or common intention of the accused appellant so as to kill

deceased Indraj as the appellant has been acquitted from the

charge u/s 302 of IPC along with other two co-accused, namely,

Sher Singh and Dharam Singh@ Dharma.

Lastly, it is argued that as per statement of PW.1- Kalu Ram,

some more persons, namely, Rajendra, Mahendra, Kor Singh,

Jagshir Singh and Billu came on the spot soon after the occurrence

but none of aforesaid witnesses appeared and corroborated the

allegation of complainant. Furthermore, the witness PW.7-

Rajendra, turned hostile and other witnesses not produced to

support the prosecution case. While inviting our attention towards

the statement of PW.7 Smt. Chavli (mother of complainant) it is

submitted that said witness was very much present in the house

but not supported the allegation of complainant, Kalu Ram, and

said that I was informed by my son, Kalu Ram, that out of two

persons, who were quarrelling with him, appellant Jaswant Singh

was one of them. In the cross-examination, it is stated by him

neither I was knowing Jaswant Singh, nor identified him on the

place of occurrence. It is further submitted that there is no

allegation in the statement of Mst. Chavli (PW.3) for inflicting any

injury to the deceased, therefore, entire prosecution story appears

to be based upon false and fabricated story of Kalu Ram, who has

falsely implicated the appellant in the case because he borrowed

20,000/- rupees from the accused appellant Jaswant Singh, was

not willing to repay the same. In view of above it is argued that it

is a case in which prosecution has failed to prove motive and

involvement of the appellant beyond reasonable doubt, thus the

judgment impugned deserves to be quashed.

Per contra, learned Public Prosecutor vehemently opposed

the prayer and argued that there is no question to disbelieve the

testimony of PW.1- Kalu Ram, who was very much present at the

place of occurrence because mother of complainant PW.3- Smt.

Chavli, supports the testimony of the complainant, Kalu Ram,

therefore, there is no question to disbelieve the statement of

PW.1, Kalu Ram and PW.3- Mst. Chavli, in which specific

allegations are made against the appellant, Jaswant Singh for

committing offence u/s 302/34 and 324/34 of IPC .

Learned Public Prosecutor submit that it is a case in which

not only deceased, Indraj, father of complainant was murdered

but injuries were caused to the complainant also upon insisting

the accused appellant, Jswant Singh, therefore, it cannot be said

that prosecution story is false.

After hearing the learned counsel for the parties, following

doubts are emerge to disbelieve the prosecution story:

A. Admittedly, charge sheet was filed by the police against

three accused persons, namely, Jaswant Singh (appellant),

Sher Singh and Dharm Singh @ Dharma and charges u/s

302, 302/34 and 324/34 of IPC were framed against all the

three accused persons, but out of three accused, the learned

trial court acquitted two co-accused persons from the

charges u/s 302 and 324/34 of IPC, so also acquitted the

accused appellant from the charge of offence u/s 302 IPC,

however, held the accused appellant guilty for offence u/s

302/34 and 324/34 of IPC without any corroborative

evidence on record. If the trial court has accepted the entire

prosecution case then how appellant also can be convicted

for offence u/s 302/34 of IPC because as per prosecution

case, the same set of evidence is on record against co-

accused but the trial court acquitted them, then how a

different view can be taken against the appellant, in absence

of evidence of common intention to cause death, therefore,

the entire prosecution case is seriously doubtful.

B. It emerges from the statement of PW.1- Kalu Ram, that no

allegation is levelled by him against the accused appellant

for inflicting any injury to the deceased. As per facts stated

by him only two persons came on spot, whereas the police

filed charge sheet against three persons on the basis of

statements of other witnesses, viz. Rajendra and Mahendra.

The witness PW.7, Rajendra Kumar turned hostile and

specifically stated that"VERNACULAR MATTER OMITTED"

There is no other reliable evidence of independent

witness corroboration the allegation of Kalu Ram, is on

record to prove the allegation of Kalu Ram for causing

injuries to the deceased or him by the accused appellant.

C. The witness PW.7 Mst. Chavli, mother of complainant, stated

that at the place of occurrence, there two persons and out of

two persons, one person was having ?Barchi? in his hand and

there is no whisper about any 12 Bore rifle in the hand of

accused appellant. PW.3- Mst. Chavli, gave following

statement which reads as under:

"VERNACULAR MATTER OMITTED"

Upon perusal of above statement, it is obvious that

allegation of having 12 bore gun by the accused appellant

has not been proved by the said eyewitness, Smt. Chavli

(PW.3) mother of complainant, Kalu Ram.

D. Upon assessment of entire evidence, it is obvious that except

Kalu Ram, there is no other witness to prove the allegation

of Kalu Ram with regard to the fact that appellant was

having gun in his hand or insisted co-accused to cause

injuries to anyone. There is no evidence of motive of

common intention, therefore, the finding of trial court

holding the accused appellant guilty, is based upon the

statement of Kalu Ram, which is not corroborated by any

independent witness or even the eyewitness, Mst. Chavli

(PW.3), therefore, we have no hesitation to hold that

prosecution has failed to prove motive/common intention

and failed to establish the fact that appellant was having rifle

in his hand at the place of occurrence, and even present at

the time of place of occurrence because statement of

complainant has not been supported by any witness.

E. As per verdict judgments of Hon?ble Apex Court in the cases

of Raj Kumar Singh @ Raju @ Batya Vs. State of

Rajasthan reported in (2013) 5 SCC 722, and Jose @

Pappachan Vs. The Sub-Inspector of Police, Koyilandy

& Ors. reported in (2016) 10 SCC 519, if two views are possible then benefit goes to the accused appellant,

therefore, it is obvous in this case that finding of trial court

so as to hold accused appellant guilt for offence u/s 302/34

and 324/34 IPC is not sustainable in law.

In the case of Raj Kumar Singh @ Raju @ Batya (supra),

the Hon?ble Apex Court while discussing earlier judgments

rendered by Apex Court, held as infra:

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ''may be'' and ''must be'' is quite large and divides vague conjectures from sure conclusions.

In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ''may be'' true and ''must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. ......

2 2. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence".

x xx

In M.G. Agarwal v. State of Maharashtra : AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.

Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under:

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

x xx

In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the Appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the Appellant are set aside. The Appellant be released forthwith unless wanted in some other case."

In the case of Jose @ Pappachan (supra), the Hon''ble

Apex Court held as infra:

"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"

In view of above, the instant criminal appeal is hereby

allowed. The conviction and sentence passed against the accused

appellant vide judgment dated 30.03.1990 by the learned

Sessions Judge, Sri Ganganagar in Session Case No.48/1988

whereby the accused appellant was convicted and sentenced

under Sections 302 / 34 and 324 / 34 IPC, is hereby quashed and set

aside. The appellant is, accordingly, acquitted from the said

offences while giving him benefit of doubt. The sentence awarded

to the accused appellant was already suspended, therefore, he is

not required to surrender and his bail bonds are hereby

discharged.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant is directed to forthwith furnish

personal bonds in the sum of Rs.20,000/- and a surety bond in

the like amount each, 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.