Kamal Kumar alias Kamlesh vs The State of Rajasthan

This appeal is directed against judgment dated

13.02.2013 passed by Special Judge, Scheduled Castes/Scheduled

Tribes (Prevention of Atrocities) Cases, Jaipur (for short ''the trial

court'') whereby the trial court while acquitting the accused-

appellant of the charge under Section 3(2)(v) of the Scheduled

Caste/ Scheduled Tribes (Prevention of Atrocities) Act, has

convicted him for offence under Sections 302 and sentenced to life

imprisonment with fine of Rs. 2,000/-, in default of payment of

fine to further undergo six months'' simple imprisonment.

Facts of the case are that Jitendra Kumar Bunkar

(P.W.1) submitted a written report (Exhibit P-1) on 17.07.2010 to

SHO, Police Station Govindgarh, District Jaipur alleging therein

that on 17.07.2010, Smt. Shanti Devi wife of Madan Lal, who is

son of his uncle came to his house at 1.00 A.M. in the mid night

and told him that Madan Lal had not returned back to home. She

requested the informant to search him out. Daughter of the

informant, Deepa awakened her uncle Lal Chand who then along

with Jitendra went in search of Madan. First of all, they went

towards Power House and then towards liquor shop where they

awakened Girdhari Kumawat who used to run a canteen nearby

and asked him about Madan. He told that Madan possibly would

have gone towards Tejaji to take his wife. When these persons

were returning home, they found dead body of Madan lying on the

open land in front of Power House with his face up side down.

Then they then went back to their house and brought Sohan, his

father Prabhu Narain and brother Kajodmal. Information was

given to the police on phone. There was no apparent injury visible

on the body of Madan but ''dupatta'' was found around his neck. In

the morning they learnt that Surendra Kumar Bunkar had seen

Madan in the liquor shop in the evening of previous day and at

that time Girdhari Kumawat and Kamlesh Kumawat were also

present there. All these facts were told to them by Surendra

Kumar Bunkar.

On the basis of the aforesaid written report, the police

registered FIR No. 183/2010 (Exhibit P-2) for alleged offence

under Sections 302 IPC and investigation commenced. Upon

completion of investigation, the police submitted charge sheet

against the accused-appellant in the court of concerned Judicial

Magistrate. The offence being exclusively triable by the Court of

Sessions, the learned Magistrate committed the case to the court

of learned Special Judge, Scheduled Castes/Scheduled Tribes

(Preventon of Atrocities) Jaipur. The learned trial court, after

hearing the arguments on charge, framed charges against the

accused-appellant for offence under Section 302 IPC and Section

3(2)(V) of the SC/ ST Act . The accused-appellant denied the

charges and claimed to be tried. During trial, the prosecution

examined as many as 23 witnesses and got exhibited 48

documents in support of its case. Thereafter, the accused-

appellant was examined under Section 313 Cr.P.C. in which he

denied the prosecution case and stated that he has been falsely

implicated in this case without any connecting or corroborating

evidence. In defence, no evidence was produced but three

documents were exhibited. Upon completion of trial, the trial

court vide impugned judgment dated 13.02.2013 though acquitted

the accused-appellant of the charge under Section 3(2)(v) of

SC/ST (Prevention of Atrocities) Act, but convicted the accused-

appellant for offence under Section 302 IPC and sentenced him in

the manner as indicated above.

Mr. A.K. Gupta, learned counsel for the accused-

appellant argued that judgment of the trial court is based on

surmises and conjectures and is not founded on evidence on

record. In fact, impugned judgment has been rendered by the

trial court on the basis of circumstantial evidence, as there being

no eye witness of the incident. The trial court failed to appreciate

that circumstances sought to be proved against the accused-

appellant do not form a chain so complete as to conclusively point

out finger of guilt towards the accused-appellant and do not rule

out every single hypothesis that may be compatible with his

innocence. Referring to page 26 of the impugned judgment,

learned counsel argued that as per FIR, accused and the deceased

were known to each other, which is a neutral and natural

circumstance and cannot be read against the accused-appellant as

the accused and the deceased were engaged as mason in the

work of construction. It is argued that second circumstance relied

by the trial court is that some dispute arose between the appellant

and Mukesh in connection with price money of mobile handset and

deceased Madan Lal and Mohan Lal Yadav (P.W.16) intervened to

resolve the dispute. When the deceased intervened, accused-

appellant threatened him of dire consequences. It is argued that

this circumstance cannot, in any manner, be held to be proved

against the accused-appellant because star witness of the

prosecution Mukesh, who was not produced and withheld by the

prosecution.

Learned counsel argued that Mohan Lal Yadav (P.W.16)

has also stated that though he also tried to mediate between

Mukesh and the accused, but he has not stated that any threat

was given by the accused to the deceased. Learned counsel

argued that the deceased and the accused-appellant both were

present at stall (lorry) of eggs being run by Girdhari Lal, who has

been examined as P.W.4, has not supported case of the

prosecution and stated that the deceased Madan was alone and

immediately after purchasing eggs, he left in the evening. Fourth

circumstances that has also wrongly been relied by learned trial

court is that the deceased consumed liquor near the stall (lorry) of

Girdhari Lal, but this circumstance has not been proved even by

Girdhari Lal (P.W.4) himself. Fifth circumstance is that the

deceased was going towards power house from stall (lorry) of

eggs of Girdhari Lal and accused-appellant was following him from

behind, but even if the statement of Surendra Kumar Bunkar

(P.W.2) is taken into consideration, he has not stated any thing

about the place of occurrence being power house and he has

rather stated that they are in different directions. There was

darkness on power house road and he could see Madan only for

five seconds when he was going towards his house, but this

witness has stated that he was not on talking terms with Madan.

In fact, there is no evidence that at 5.30 P.M., both the accused-

appellant and the deceased were present near the stall (lorry) of

eggs or ''theka''. Puran Mal (P.W.3) has not stated that they were

seen together. Seventh circumstance is that the accused

appellant came to purchase ''gutkha'' from Rakesh Verma (P.W.11),

which was found near dead body of the deceased. It is argued

that ''gutkha'' is a common product which is used by people as

mouth freshner and there is nothing unusual if same brand of

''gutkha'' was found near the dead body, as the same was being

sold around in that area.

Learned counsel argued that eighth circumstance that

the deceased was seen dead at 1.00 A.M. cannot be considered as

an incriminating circumstance against him as it is a neutral

circumstance. Then comes the last circumstance that pant, T-shirt and Shoe were recovered at the instance of the accused-appellant.

It is argued that trial court wrongly placed reliance on recovery of

pant, T-shirt, shoe and ''dupatta'' of accused and erroneously

recorded finding that blood of B group was found on ''dupatta''. In

doing so, trial court failed to appreciate that pant, T-shirt, shoe

and ''dupatta'' belonged to accused-appellant has not been proved

by any evidence. The prosecution has also failed to prove that

''dupatta'' around the neck of the deceased belonged to accused-

appellant. Learned counsel argued that trial court has committed

serious irregularity in raising presumption under Section 106 of

the Indian Evidence Act against the accused-appellant. Learned

counsel therefore argued that chain of circumstances against the

accused-appellant cannot be said to be so complete as to rule out

every single hypothesis that may be compatible with his

innocence. In support of his arguments, learned counsel for the

appellant relied on the judgments of the Supreme Court in

Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119;

Musheer Khan @ Badshah Khan & Another Vs. State of

Madhya Pradesh, AIR 2010 SC 762 and Chandu alias

Chandrahas Vs. State of Madhya Pradesh, AIR 1992 SC

2302.

Mrs. Sonia Shandilya, learned Public Prosecutor

opposed the appeal and supported the judgment passed by the

trial court. In doing so, learned Public Prosecutor referred to

statements of prosecution witnesses as also the exhibits, which we

shall deal with at appropriate stage hereinafter. Besides, learned

Public Prosecutor argued that mere non-production of Mukesh may

not be fatal to the case of the prosecution because a quarrel had

taken place between Mukesh and accused-appellant and accused-

appellant became angry with the deceased Madan Lal, who tried

to intervene between both of them. The accused-appellant did not

take it kindly and he got the opportunity for revenge when he

found Madan Lal alone on ''theka'' of liquor in the night around 8.30

P.M. after which, the accused-appellant followed him till an

agricultural field and put him to death by strangulating his neck by

use of ''dupatta''. The accused-appellant caused injuries on the

face of Madan Lal by kicks. Learned Public Prosecutor has relied

upon the judgment of Uttarakhand High Court at Nainital in

Darvan Singh Vs. State of Uttarakhand (Criminal Jail

Appeal No. 09 of 2011 decided on 10.07.2017).

We have given our anxious consideration to rival

submissions and carefully perused the material on record.

We are inclined to agree with what has been argued by

learned counsel for the appellant that the fact the accused and the

deceased were known to each other cannot be considered as a

factor against him particularly when they were both engaged in

the work of construction as mason. So far as the motive in the

present case is concerned, the prosecution has sought to prove

that accused was annoyed with the deceased when he along with

Mohan Lal Yadav (P.W.16) tried to mediate a dispute over the price

money of mobile handset between one Mukesh and the accused.

Mohan Lal Yadav (P.W.16), who along with the deceased also

allegedly tried to mediate the aforesaid dispute. He has stated

that he saw that Mukesh Kumawat and Kamal Kumar (accused-

appellant) quarreling with each other on the sale proceeds of

mobile handset. Mukesh was asking Kamal Kumar Saini to return

money of his mobile handset. Kamal Kumar Saini, who was highly

drunk, thereupon started abusing Mukesh. He and deceased

Madan Lal tried to intervene and separated them. In cross-

examination, he stated that he could not say how much amount

was involved in the dispute. He also admitted that prior to the

incident, Kamal Kumawat and Madan Lal used to visit each others

house. Though the distance between his shop where the quarrel

took place and the police station was hardly half kilometer, but

neither of parties reported the matter to the police. There was no

dispute between the brothers of the deceased and the accused.

Both used to have meals together on several occasions. Evidence

of this witness, even if considered, would prove that a sudden

dispute took place between Mukesh and Kamal Kumar over the

price of mobile handset, which could have been possible because

as per his further statement, Kamal at that time was highly drunk.

In any case, if Madan Lal and Mohan Lal both had tried to

intervene in the dispute, it does not appeal to reason as to why

the accused-appellant would only be annoyed with Madan Lal and

not with Mohan Lal. Besides, as per statement of this witness,

relations between the deceased and the accused-appellant were

quite cordial and they used to visit each others'' house and at

times they used to party together along with their brothers. Thus,

the motive of the accused in the present case for committing

murder of the deceased cannot be held to have been proved

because Mukesh with whom alleged quarrel took place and who

could have been star witness of the prosecution, has not been

produced.

Third circumstance which the trial court has relied to

hold the accused-appellant guilty is that the accused and the

deceased were seen together at the egg stall (lorry) of Girdhari Lal

(P.W.4). Girdhari Lal (P.W.4) used to sell boiled eggs and omelets

at his stall (lorry). All that he has stated is that Madan came to

purchase eggs from him and then left after some time in the

evening. He though stated that accused-appellant Kamal @

Kamlesh came to him but denied that he took the deceased with

him at that time. In cross-examination, this witness has admitted

that Madan used to regularly consume at least two quarters of

liquor and he had consumed two quarters at that time also.

Lastly, in the cross-examination, what he has stated is that

accused Kamal came to his stall after half an hour when Madan

had left his stall. This evidence also does not prove anything

against the appellant and at least cannot be relied to hold that

accused-appellant and the deceased were seen together. Fourth

circumstance that the deceased consumed liquor near stall (lorry)

of Girdhari Lal is also a neutral circumstance because this does not

prove anything against the accused-appellant.

Fifth incriminating circumstance relied by the trial court

against the accused-appellant is that the deceased Madan Lal was

seen going towards power house from stall (lorry) of egg and the

accused was also going behind him. The prosecution as per its

own showing has come out with a case that after Madan Lal left

stall of Girdhari Lal and went towards power house, accused

Kamal also came there and then followed him and he was then

seen going in the same direction while following the deceased

Madan. This clearly shows that own case of the prosecution is not

that the deceased and the accused-appellant were seen together.

When we look at the statement of Surendra Kumar Bunkar (P.W.2)

in this behalf, this witness has stated that he went to buy a

quarter from the liquor shop situated near bye pass at about 8.30

P.M. on 16.07.2010. There he saw Madan was standing near the

egg stall and thereafter Madan was seen going towards the power

house. Accused-appellant Kamal was also seen going behind him.

In cross-examination, this witness stated that he learnt early in

the morning on the following day that someone has murdered

Madan by use of ''dupatta''. He told his cousin Jitendra that he saw

accused Kamal going behind the deceased Madan. In cross-

examination, he further stated that he disclosed this fact to

Jitendra and certain other people at 10.00 A.M. in the morning of

following day. This witness admitted that road leading to power

house was completely dark and he could not see Madan beyond

10-15 steps beyond the egg stall (lorry). He did not remember as

to what was the colour of pant and shirt Madan was wearing at

that time. Although, he admitted that Madan always carried

''dupatta'' around his neck. In cross-examination, this witness

admitted that he was not on talking terms with accused-appellant

Kamal, but denied suggestion that he was making statement

against him only because of that reason. He also admitted that

accused-appellant Kamal and deceased Madan were residing in the

same colony. Even if the statement of this witness is believed it does not prove anything except that he had seen Madan standing

near the egg stall (lorry) of Girdhari and then going towards

power house road from his stall (lorry) but at the same time, this

witness has also admitted that it was a dark night and visibility

was hardly 10-15 feet. It is in this context, he stated that he saw

accused-appellant going behind Madan after some time. This

statement does not, therefore, prove that accused-appellant and

the deceased were seen together going towards power house.

Even fifth circumstance read with sixth circumstance that the

accused-appellant and the deceased were present at the stall

(trolly) or ''theka'' of liquor near about 8.30 P.M. do not prove

anything exclusively against the accused-appellant.

Seventh circumstance was that the accused-appellant

had purchased ''gutkha'' from the shop of Rakesh Verma and

wrapper of ''gutkha'' was found near dead body, which connects

him with the crime is also too weak to held the accused-appellant

guilty for the serious offence of murder. Testimony of Rakesh

Verma only proves purchase of ''gutkha'' by the accused-appellant

from his shop but this does not prove the fact that said ''gutkha''

was only being sold by this witness to several customers and

therefore the mere fact that wrapper was found near the dead

body cannot be taken as a significant evidence against the

accused-appellant. This witness in cross-examination admitted

that number of egg stalls were situated in front of his shop but

egg stall of Girdhari was engulfed in the darkness and therefore,

he could not see those who visited his stall around 7-8 P.M. on that day. Even then, he has stated that he saw deceased Madan

at 7.00 P.M. on that day and thereafter he left.

Only evidence that now remains is that of recovery of

pant, T-shirt, shoe and ''dupatta'' at the instance of accused-

appellant. While blood of B group was found on ''dupatta''

recovered at the instance of accused-appellant, grouping of blood

on pair of shoe, pant remained inconclusive. ''Dupatta'' is shown to

have been recovered at the instance of accused-appellant, which

as per FSL Report (Exhibit P-48) was found to contain human

blood of B group, but the prosecution has failed to establish that

blood of the deceased was also of B group and further that blood

group of the accused-appellant was not of B group. As per the

prosecution, it seized the clothes of the deceased vide Exhibit P-9

which consisted one shirt of slaty colour, one pant of grey colour

and one vest, one underwear and a piece of ''dupatta'' and another

piece of cloth and a pair of chappal which were also sent to FSL.

But there is no explanation why the blood group could not be

determined on piece of ''dupatta'' which was seized from dead body

of the deceased, though it was found to contain blood of human

origin. The fact about non-determination of blood group of the

deceased, as also the fact of blood of B group being found on

''dupatta'' recovered at the instance of accused-appellant and

further fact that blood group of the piece of ''dupatta'' that was

allegedly recovered from the dead body of the deceased, which

was claimed to be part of same ''dupatta'' recovered at the instance

of accused-appellant could not be determined, these all create a

doubt on genuineness of this recovery, as if the recovery of

''dupatta'' which was shown to be recovered at the instance of

accused-appellant was not a planted recovery and it was

genuinely recovered at the instance of the accused-appellant and

then why blood grouping of blood on a piece of the same ''dupatta''

seized from dead body of deceased could not be determined,

these are those facts which remain unexplained on the part of the

prosecution in the present case. T-shirt of the accused was found

negative for the presence of blood. Only circumstance of presence

of human blood on pair of shoe and pant of the accused-

appellants in the facts and circumstances of the present case and

the evidence on record cannot be sufficient reason to hold the

accused-appellant guilty as this circumstance alone cannot form a

chain of circumstances. It is settled law that in a case of

circumstantial evidence, where there is total absence of direct

evidence to safeguard against conviction of an innocent, guilt of

the accused has to be proved by chain of multiple circumstances.

A single circumstance by itself cannot form a chain. Besides,

whatever incriminating circumstances have been relied by the trial

court, even if joined together, they still do not form a chain so

complete as to bring home guilt of the accused-appellant beyond

reasonable doubt, as such chain would have several missing links

and would not rule out each and every hypothesis that may be

compatible with innocence of the accused-appellant. Evidence in

the present case cannot therefore be said to be such which may

conclusively point towards the guilt of the accused that it was he

alone and none else, who could have committed murder of the

deceased.

In view of above discussion, present appeal deserves to

succeed and is accordingly allowed. The impugned judgment of

conviction and sentence dated 13.02.2013 is set aside. Accused-

appellant Kamal Kumar alias Kamlesh is acquitted of the charges

for offence under Section 302 IPC. Accused-appellant Kamal

Kumar alias Kamlesh is in jail and be set at liberty forthwith if not

required to be detained in connection with any other case.

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

the Code of Criminal Procedure, appellant is directed to forthwith

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

bond in the like amount, before the Deputy Registrar (Judicial) of

this Court, which shall be effective for a period of six months,

undertaking that in the event of Special Leave Petition being filed

against this judgment or on grant of leave, the appellant

aforesaid, on receipt of notice thereof, shall appear before the

Supreme Court.