AI Structured Summary
Not yet generated for this judgment
Judgment
In this criminal appeal, the accused appellants, namely,
Jogaram, Misriya @ Mishrilal and Poonama Ram @ Puna, under
Section 374 (2) Cr.P.C ., have assailed the judgment dated 30th of
October 1998 passed by learned Addl. Sessions Judge, Bali,
District Pali, in Session Case No.18/1994, whereby the appellants
were convicted for the offence under Sections 302 / 34, 201 and
120B of IPC and following sentence was passed against them: -
Appellants No.1 & 2 Joga Ram & Misriya @ Mishrilal
302/34 of IPC : Life Imprisonment & Fine of Rs.2000/-. In default of payment of fine, to further undergo three months- S.I.
201 of IPC : 3 Yeas- Simple Imprisonment & Fine of Rs.500/-. In default of payment of fine, to further undergo month month-s S.I.
Appellant No.3 Poonama @ Puna 120B of IPC : Life Imprisonment & Fine of Rs.1000/-. In default of payment of fine, to further undergo one month-s S.I.
Briefly stated, the facts of the case are that on 17.01.1994,
A.C.F. of Forest Department, Mr. Chandrapal Singh (PW.29)
submitted a report (Ex.P/15) written by cattle guard, Prem Singh,
at Police Station Khivanda, District Pali, stating therein that on
16.01.1994 Ganga Singh (deceased) who was posted as Forest
Guard, In-charge of Check Post of Forest Department, Sumer
asked him that you may go for patrolling near Kaliya Mahadev
Mandir in the forest; and after sometime, Ganga Singh, Parvat
Singh, Baktawar Singh came there, at about 01.30 PM. All the
persons after taking food, Ganga Singh and Hukama Ram went in
the forest for patrolling but did not come tack till night, therefore,
an enquiry was made by Smt. Antar Kanwar (PW.16) wife of
deceased, Ganga Singh, for his whereabouts, however, could not
be traced out. Smt. Antar Kanwar raised suspicion that her
husband, Ganga Singh, was not allowing the animals of appellants
for grazing in the forest area, therefore, relations of appellants
with Ganga Singh were not cordial. A missing person report was
submitted at Police Station Khivanda, on 17.01.1994 before
lodging the FIR, during search the dead body of Ganga Singh was
found in the forest and near the body, blood stained stones were
lying there, it was apprehended that Ganga Singh has been
murdered by unknown persons and his dead body was thrown at
another place.
Upon the aforesaid written complaint, FIR No.3/1994 was
registered at Police Station Khivanda, for the offence under
Sections 302 and 201 of IPC and investigation was commenced by
the S.H.O.
Smt. Antar Kanwar and another witness PW.2 Prem Singh
specifically alleged in their statements recorded under Section 161
Cr.P.C. that before some days of the incident, a quarrel took place
between the appellants and Ganga Singh because deceased Ganga
Singh while performing his duty on the post of Forest Guard not
allowed the appellants- cattle to graze in the forest area. As per
allegations, the appellants and other villagers made a complaint to
the Hon-ble Chief Minister for his transfer. In the investigation to
ascertain the correctness of the said fact, statement of some other
witnesses were also recorded during investigation. The he accused
appellants were arrested on the basis of circumstantial evidence
and during police custody upon information given under Section
27 of the Evidence Act by the appellants, one "Lathi" (stick) of
Bamboo, blood stained stone and cap of the deceased were
recovered in the presence of two Motbir witnesses, namely, Bhim
Singh and Surendra Singh and the recovery memos of cap, "Lathi"
(Bamboo stick), and stone collected from the place of incident,
were prepared and all the articles seized including jacket of
deceased, Ganga Singh and sent to the FSL for examination. The
report (Ex.P/38) was received from the FSL, Jaipur on
06.12.1996, according to said report human blood was found upon
the seized articles but blood group was not ascertained.
After completing investigation charge sheet was submitted
against the appellants on the basis of circumstantial evidence of
recovery of cap, stick (Lathi) and blood stained stones. In the
investigation, cap and stick were identified by two witnesses Prem
Singh and Parvat Singh, working as Cattle Guard and Forest
Guard, in Forest Department in front of Magistrate. Finger prints
of all the accused appellants were also taken but there is no report
of finger print expert is on record.
After filing charge sheet the learned Munsif and Judicial
Magistrate, Desuri, committed the cae to the court of Addl.
Sessions Judge, Bali, District Pali (Trial Court) for trial.
The learned trial court after hearing arguments of both the
sides framed charges against the accused appellants for the
offences under Sections 302, 302 / 34, 201 & 120B of IPC, but all
the three accused appellants denied the allegations levelled
against them and prayed for trial.
During trial, statements of 29 prosecution witnesses were
recorded and 57 documents were exhibited from the prosecution
side to prove the allegations levelled against the appellants. After
recording the evidence of prosecution, statements of accused
appellants were recorded under Section 313 Cr.P.C., but all the
appellants denied the allegations levelled against them by the
prosecution witnesses and pleaded innocence. No evidence was
produced by them in defence.
The learned trial court after hearing and evaluating the
evidence of both the sides, convicted the accused appellants vide
judgment impugned dated 30.10.1998 for the offences under
Sections 302 / 34, 201 and 120B of IPC and passed the sentence
mentioned above.
Learned counsel for the appellants while challenging the
aforesaid judgment argued that prosecution has failed to prove its
case beyond reasonable doubt on the basis of circumstantial
evidence of recovery and raised following grounds:
[A]. That there is no eyewitness or direct evidence in this case to
prove the allegation of murder against the appellant.
[B]. The entire prosecution case is based upon circumstantial
evidence of recovery of cap, which is said to be wore by
deceased, Ganga Singh, at the time of incident given by the
Forest Department to Forest Guard and recovery of "Lathi"
(stick) and verification of place of occurrence upon
information given by the appellants. However, none of the
independent Motbir witnesses, in whose presence, the so-
called recovery was made, supported the prosecution case
as they turned hostile.
[C]. Learned counsel for the appellants further submits that there
is no evidence of -motive- which is main ingredient of
murder. The only allegation of the prosecution witness is
that Ganga Singh while working on the post of Forest Guard
did not allow the cattle of appellants for grazing in the forest
area. Due the said reason a quarrel took place between
appellants and the employees of Forest Department
including Ganga Singh, so also, villagers and appellants
made complaint to the Chief Minister who visited Pali a day
before to transfer Ganga Singh at some other place. It is
submitted that some of the witnesses submit that some
conversation were hard by them for taking action against
deceased, Ganga Singh those witnesses turned hostile and
did not support the prosecution case. Learned counsel for
the appellants invited our attention towards entire evidence
and submitted that complete chain of circumstances, which
is required to be proved by the prosecution beyond
reasonable doubt, is lacking in this case, therefore, finding of
conviction recorded by the trial court on basis of such type of
circumstantial evidence deserves be discarded for the
purpose of arriving at the finding of guilt. It is also argued
that so-called identification of cap, and stick is seriously
doubtful because on the one hand vide Ex.P/11 and Ex.P/12
both articles were seized on the spot then how those seized
articles were opened for the purpose of identification and
who has broken the seal for the purpose of identification, has
not been proved by the prosecution, therefore, the alleged
recovery of cap and stick to connect the accused appellants
with the crime, has not been proved by the prosecution
beyond doubt.
[D]. Learned counsel for the appellants further argued that in the
FSL report, although human blood was reported, but blood
group was not ascertained. Lastly, it is argued that most of
the witnesses turned hostile and did not support the
prosecution story, so also, the allegation of motive that
deceased Ganga Singh did not allow appellants to graze their
animals in the forest area, cannot be treated -motive- so as
to commit murder to Ganga Singh. The entire prosecution
case is based upon mere suspicion raised by the wife of
deceased, Ganga Singh, which has not been proved by the
independent witness, therefore, the judgment impugned
may kindly be quashed.
In support of his case, learned counsel for the appellants
relied upon following judgments:
Sharad Birdhichand Sarda Vs. State of Maharasthra,
reported in (1984) 4 SCC 116.
Mahendra Singh @ Ghoda Vs. State of Rajasthan, reported in
2016 (3) Cr.L.R. (Raj.) 1519.
State of Rajsthan Vs. Mangal Singh & Ors. reported in 2017
(1) Cr.L.R. (Raj.) 435.
Dharmendra Vs. State of Rajasthan, reported in 2017 (1)
Cr.l.r. (Raj.) 451.
Hansraj Vs. State of Rajasthan reported in 1996 (2) RCD 598
(Raj.)
Ishwar Singh Vs. State of Rajasthan, reported in 2017 (1)
Cr.L.R. (Raj.) 364.
Sumer Singh Vs. State of Rajasthan, reported in 1997
Cr.L.R. (Raj.) 363.
Per contra, learned Public Prosecutor vehemently argued
that although prosecution case is based upon circumstantial
evidence but it has been proved beyond reasonable doubt on the
basis of reliable evidence of recovery and motive, therefore, the
finding of learned trial court does not require any interference.
Learned Public Prosecutor further argued that deceased, Ganga
Singh, was working on the post of Forest Guard and as per his
duties, he was to protect the forest, therefore, while performing
his duties, Ganga Singh did not allow the appellants- animals to
graze in the forest area. The appellants were illegally cutting the
trees in the forest area, which was resisted by deceased Ganga
Singh while discharging his duties not allowed the appellants to
cut the trees, therefore, the appellants were bearing enmity with
the deceased.
While inviting attention towards the statement of witness,
Prem Singh (PW.2) and statement of Smt. Antar Kanwar (wife of
deceased), it is submitted that incident of quarrel in between the
appellants and deceased Ganga Singh, was informed by Ganga
Singh, therefore, there was motive left with the appellants to
cause death of Ganga Singh. While inviting attention towards the
statements of PW.11, Ganesh Devasi, it is submitted that said
witness categorically stated in his statement that before
registration of the FIR, Prem Singh and Ganga Singh, met him
near temple of Lord Mahadev in forest and food was offered to
them and after taking food and tea, Ganga Singh, Prem Singh,
and Hakma Rebari all left his house. The witness Ganesh Rebari
(PW.11) stated before the court that appellant Poonma and one
Heera, were sitting near the house. The crux of argument of
learned Public Prosecutor is that, appellants were having motive to
kill deceased, Ganga Singh, who was working as Forest Guard in
the forest area to protect the forest; and while discharging his
duties, he did not permit the appellants to leave their animal for
grazing in the forest area, therefore, they killed deceased, Ganga
Singh in the forest using stone and Lathi, whichis evident from the
fact that near the body of deceased, blood stained stones were
recovered by the police during investigation.
Learned Public Prosecutor further submit that after arrest, on
the basis of information given by the appellants, "Lathi" and blood
stained stones, used for inflicting injury to the dedeased and cap
of deceased were recovered in the presence of two witnesses by
the investigating officer vide Ex.P/10, P/11 and P/12 although
witnesses, Bheem Singh and Surendra Singh tuned hostile, but
they accepted their signatures and thumb impression upon
recovery memos in their statements. Therefore, the learned trial
court while accepting the testimony of investigating officer with
regard to recovery of articles coupled with report of FSL (Ex.P/38),
in which human blood was reported upon articles, held the
accused appellants guilty on the basis of recovery of articles, thus,
the finding of guilt recorded by the trial court does not suffer from
any illegality.
Learned Public Prosecutor invited our attention towards the
statement of PW.16, Smt. Antar Kanwar, wife of deceased and
submitted that said witness categorically stated in her statement
that her husband late Ganga Singh, went in the forest with Prem
Singh, in connection their duties to protect the forest specifically
stated that on 17.01.1994 her husband along with Baktawar
Singh, Prem Singh went in the forest for patrolling. At the time of
leaving house, my husband said that he will come back in the
evening at 05-06.00 PM and instructed me to prepare food but did
not come back in the night, but Prem Singh came back at
06/07.00 PM, upon enquiry made through children from Prem
Singh, it is informed that we both separated at the time of
patrolling in the morning. That witness, Prem Singh, Inder Singh
and some other persons went into forest to search my husband,
on the day D.F.O. also came there and made enquiry to search my
husband.
The witness PW.16, Smt. Antar Kanwar categorically stated
before the court that accused appellants made complaint to the
Chief Minister and gave threatening to my husband that you will
be killed if you will not permit our cattle to graze in the forest. As
per allegation of the wife of deceased Smt. Antar Kanwar, the
appellants were having grievance with her husband, Ganga Singh,
therefore, first they made efforts for his transfer, but later on they
committed murder of my husband.
While inviting attention towards the statement of
Investigating Officer, Daulat Singh, it is submitted that although
witnesses of recovery turned hostile but this witness has
categorically proved the recovery of Lathi, cap and blood stained
stones, therefore, the finding arrived at by the learned trial court
in the judgment impugned does not require any interference so as
to maintain conviction of the appellants. In view of above
arguments, it is submitted that there is no question to disbelieve
the testimony of the investigating officer as well as Smt. Antar
Kanwar wife of deceased, and Prem Singh, who went along with
Ganga Singh in the forest on the relevant day, more so, chain of
circumstances loudly speaks that appellants has rightly been
convicted for the offence of murder of deceased, Ganga Singh.
After hearing learned counsel for the parties, we have
perused the entire evidence along with finding of learned trial
court in the judgment impugned. There is no dispute that
deceased Ganga Singh was working as Forest Guard and deployed
as In-charge Chowki of the forest area- Sumer. On 16.01.1994,
Ganga Singh, Prem Singh, Parvat Singh and Baktawar Singh went
in the forest near the temple of Lord Mahadev, where they took
food and thereafter Ganga Singh and Hukma Devasi, went in the
forst for patrolling but till night, Ganga Singh did not come back at
his home and upon search when his whereabouts were not traced
out, a Missing Person Report was submitted at Police Station
Khivanda; and later on when dead body was recovered ACF, Mr.
Chandrapal Singh (PW.29) submitted a report on 18.01.1994
against unknown persons for committing murder of Ganga Singh,
Forest Guard of Sumer area. Upon the report submitted by Mr.
Chandrapal Singh (PW.29) FIR was registered under Sections 302,
201 and 120B of IPC and accused appellants were arrested during
investigation on the basis of doubt created by PW.16 Smt. Antar
Kanwar (wife of deceased), and Prem Singh. During investigation
upon information given by the appellants, recovery of cap, Lathi
and blood stained stones were recovered vide Ex.P/10, Ex.P/11
and Ex.P/12. Now question arose, whether prosecution has proved
its case beyond reasonable doubt on the basis of recovery of
articles and evidence of motive alleged by the wife of deceased
witness PW.16 Smt. Antar Kanwar and witness Prem Singh.
There is no dispute that dead body of deceased Ganga Singh
who was working on the post of Forest Guard was recovered in
the forest of Aravali hills in the boundary of Sumer. After
registration of F.I.R. No.3/1994 (Ex.P/25) under Section 302 IPC
investigation was made by the police. The recovery memo of dead
body was prepared at the place where the dead body of Ganga
Singh, was found. "Panchayatnama" (Ex.P/1) of dead body was
prepared on 18.01.1994 at 03.10 PM and before that details of
condition of dead body was recorded at the place of occurrence
vide Ex.P/2 at 02.55 PM in the presence of two witnesses, namely,
Khinv Singh and Hanuwant Singh. The dead body of deceased
Ganga Singh, was taken to the hospital for postmortem and vide
Ex.P/6, postmortem was conducted at Govt. Hospital, Desuri by
the Medical Board in which 15 injuries were found upon the body
of deceased. After postmortem the body was handed over to the
family members for cremation.
Upon perusal of the statements of prosecution witnesses, it
is revealed that PW.1- Khim Singh (Motbir witness of recovery of
dead body and "Panchayatnama" and other memos) turned hostile
and did not support the prosecution case. PW.3- Bhabuta Ram,
turned hostile and did not prove Ex.P/3 ("Panchayatnama"). The
other witness of recovery i.e. PW.6- Bhim Singh did not support
the recovery of pieces of Lathi, Cap and blood stained stones and
categorically stated that no recovery of cap, dead body and stones
was effected in front of him, his signatures were obtained at
Sumer Jain Mandir. Witness PW.8- Hanuwant Singh, turned hostile
and said that no search was made by the police in front of him
and at the place Manvario-Ki-Nal and refused to say that any
document was prepared in front of him. PW.10- Surendra Singh,
who is witness of recovery of cap and blood stained stone, turned
hostile and did not support the prosecution case and specifically
stated in the cross-examination that recovery memos were not
prepared in front of him.
In view of the fact that all witnesses of recovery turned
hostile, therefore, how it can be said that prosecution has proved
its case beyond reasonable doubt on the basis of recovery of cap,
blood stained stones and Lathi. It is also admitted fact that in the
FSL report although human blood was detected upon the articles
but blood group was ascertained by the FSL. So far as fact taking
of meal in the forest by deceased Ganga Singh, and Prem Singh,
we have perused the statement of PW.11- Ganesh, the said
witness turned hostile and said that on the relevant day, nobody
came to his residence, nor any incident/quarrel took place before
him or he was aware about the conspiracy being hatched by the
appellants. PW.12- Moda Ram, PW.13- Partaram, and PW.15-
Kanaram, turned hostile and did not support the prosecution case.
Upon assessment of entire evidence, it emerges from the
evidence that the finding of conviction is mostly based upon
testimony of three witnesses, viz. PW.2- Prem Singh, PW.16- Smt.
Antar Kanwar and the Investigating Officer. Admittedly, there is
no eyewitness but as per statement of PW.16, Smt. Antar Kanwar,
deceased left the house along with Prem Singh, in the evening
Prem Singh (PW.2) came back to the house but deceased Ganga
Singh did not come back, therefore, search was mounted by the
police as well as employees of Forest Department. Upon perusal of
entire evidence there is no evidence on record to prove the
allegation of Smt. Antar Kanwar (PW.16) and Prem Singh (PW.2)
with regard to motive and conspiracy. All the independent
witnesses turned hostile and did not support the prosecution case
based upon circumstantial evidence, but the learned trial court on
presumption convicted the accused appellants for alleged offence
of murder of Ganga Singh on the basis of recovery of cap, Lathi
and blood stained stones, so also, upon the evidence of quarrel in
between deceased Ganga Singh, Forest Guard and the appellants
because he was not allowing the animals of appellants to grace in
the forest area. In our opinion, the allegation made by PW.16,
Smt. Antar Kanwar, has not been supported by any witness, so
also, witness PW.2 Prem Singh cannot be treated to be a
trustworthy witness because he was the person with him Ganga
Singh left his house and went in the forest but in the evening,
Prem Singh came back alone and upon making enquiry from him,
he went to search deceased, Ganga Singh along with other
employees.
In our opinion, as per verdict of Hon''ble Apex Court in the
case of Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in AIR 1984 SC 1622, and subsequent judgment in the
case of Sangili Vs. State of Tamil Nadu, reported in 2014 (10)
SCC 264, the prosecution is required to prove its case beyond
reasonable doubt, if the prosecution case is based on
circumstantial evidence. In the case at hand, the prosecution has
miserably failed to prove its case beyond reasonable doubt
because most of the witnesses turned hostile. There is no
trustworthy or reliable evidence to prove motive, therefore,
finding of guilt recorded by the trial court on the basis of
circumstantial evidence is not sustainable in law.
Recently, the Hon''ble Supreme Court in the case of Sangili (supra) while following the earlier judgment in the case of Sharad Birdhichand Sarda (supra) the Hon''ble Supreme Court held as under: -
"23. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273, this Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused
must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185)
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be'' fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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."
With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the
Act is the information leading to discovery and not any opinion formed on it by the prosecution."
(emphasis supplied)
It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set-aside the conviction and sentence of the appellant. The appellant be set at liberty unless required in any other case."
Upon assessment of entire circumstantial evidence of
present case in the light of aforesaid judgments, we find that
prosecution has failed to prove its case beyond reasonable doubt
on the circumstantial evidence of last seen, recovery of Lathi,
blood stained stones, and cap of deceased, and further there is no
reliable evidence to prove and establish the motive for commission
of offence.
Consequently, we are of the opinion that the finding of the learned trial Court so as to hold accused appellants guilty is not sustainable in law and accused appellants are entitled to be given benefit of doubt.
Accordingly, the instant criminal appeal is allowed, the
judgment impugned dated 30th of October 1998 passed by learned
Addl. Sessions Judge, Bali, District Pali, in Session Case
No.18/1994, is hereby quashed and set aside. The sentence
awarded to the accused appellants has already been suspended.
Their bail bonds are hereby discharged.
Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellants are 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 appellant, on receipt of notice thereof, shall appear
before Hon''ble the Supreme Court.