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Judgment
The instant appeal is directed against the
judgment dated 31/03/1989 passed by Additional District and
Sessions Judge, Rai Singh Nagar, District Sri Ganganagar in
Sessions Case No.77/1987 by which the accused-appellants have
been convicted under Section 302 / 34 of IPC with life
imprisonment but no fine has been imposed.
The contents of F.I.R. No.36/87 (Ex.D.5) does not
discloses name of any accused person and has been lodged
against unknown, which reads as under :-
"VERNACULAR MATTER OMITTED" 3. The case was committed to learned trial Court,
which after framing charges, conducted the trial. The prosecution
produced ten witnesses and after examination of the accused
persons under Section 313 of CrPC, defence also produced two
witnesses and twenty one exhibits were marked by the
prosecution, the defence also got five exhibits marked in its
defence and the trial Court concluded the trial with aforesaid
verdict by convicting all the accused persons under Section
302 / 34 of IPC, ignoring the mandate of imposing fine, a requisite
under Section 302 of IPC. 4. Heard submissions of rival sides, learned counsel
for the appellants has contended that trial Court has committed
material illegality and perversity in passing the impugned
judgment, since F.I.R is highly delayed, initially, the incident was
registered under Morgue and F.I.R does have got names of Abha
Ram and Ahmedaram Meghwal, who allegedly apprised to the
complainant brother of the deceased regarding the witnessing of
the body in a water ditch, they did not divulge anything regarding
"last seen together" or anything about extra judicial confession,
and both these versions have been invented through
improvements, in order to fasten illegal involvement of the
appellants-accused persons. Had there been any truth with
respect to alleged fact of "last seen together", then it would have
been narrated right at the time, when information relating to
witnessing of body, in the pond, was given and this aspect would
have certainly been mentioned in the F.I.R itself, and so far as
witnesses of recovery are concerned, one of the witness has not
been produced by the prosecution, whereas other is a close
relative of the complainant party, so their testimony cannot be
relied and it is also improbable that the belonging of the deceased
person, whose body was allegedly found in the water pond, like
Gamcha and Juti would be removed and kept intact somewhere
else for alleged recovery. Doctor has also opined that
strangulation marks found on the neck of the deceased could not
be caused by lathi, but prosecution has shown recovery of lathi,
which is of no use and obviously does not connect the accused
with crime. Story of the prosecution is based on bogus surmises,
which is not reliable at all and is not sufficient to prove the alleged
offence, but ignoring all these truths, learned trial Court has
wrongly convicted the accused persons, hence, the appeal be
allowed and the conviction be set aside.
Learned public prosecutor has argued that
there is no error in the findings of learned trial Court because
there is reliable evidence of "last seen together" with "extra
judicial confession" against the accused persons, which has rightly
been accepted by learned trial Court. Recoveries have been made
on the instances of accused persons, which relates to the
belongings and weapon of assault used in the crime, Gamcha and
Juti of the victim has also been recovered from the possession of
the accused persons, the injuries are well corroborated by medical
evidence and appeal does not have got any force, so it be
dismissed.
Perused the record and examined the evidence
thoroughly.
PW.5 Dr. Mahaveer Prasad conducting the
autopsy on the body of the deceased has said that the body of the
deceased was having bruises on chest, neck and right arm and all
these injuries were "ante-mortem" in the nature, but Ex.P.10
Panchayatnama of the body as well as Ex.D2 "status report of the
dead body" discloses that there was no injury found on the body
of the deceased. The autopsy was conducted on 13/05/1985 and
Ex.P1 Postmortem Report dated 13/05/1985 has got a noting
disclosing duration of death three to four days from, 13/05/1984.
According to the testimony of PW.1
Govind Ram, a version of "extra judicial confession" has been
stated and has also been brought forth, since he has said that the
accused persons confessed before him that they pressed "lathi"
upon the neck of the deceased, which caused his death and after
disclosing this the accused persons implored for pardon, but PW.5
Dr. Mahaveer Prasad has said that the strangulation was done with
some "soft object" and neck choking was not caused by any hard
object akin to lathi, this Medical expert has also said that the
injuries found on the body of the deceased, were results of
struggle.
PW.5 Dr. Mahaveer Prasad has also said that the
body was not having removal of skins from chest and arms
resulting decomposition, whereas PW.8 Privthvi Singh SHO
recovering the body of the deceased has narrated otherwise by
saying that mentioning of removal of skin from chest, neck and
arms of the body as mentioned in Ex.D.2 is correct and has
asserted that skin was found removed from the neck and arms of
the deceased and "water was coming out of the mouth of the
body", but this fact is denied by doctor conducting the
postmortem, since in his cross-examination, he has also said that
asphyxia could be resulted because of neck choking and drowning
as well and has also said that if strangulation is caused by
throttling with lathi, then strangulation signs alike detected could
not occur. As such, symptoms found on the body of the deceased
and as averred by the SHO are vitally mismatching with the
narration of the medical expert.
The prosecution has also come with a story
that an "extra judicial confession" was made disclosing death by
throttling the neck by lathi, but contrary to it, medical expert PW.5
Mahaveer Prasad has distinctly opined that the strangulation was
not found to have been done with an object like lathi and it was
subjected with a soft object, which too makes the story of the
prosecution dubious and weak.
On detection of the dead body, which is
stated to be found on the basis of information, rendered by some
passerbys, namely, Asharam and Ahemadaram, proceeding under
Section 174 / 176 of CrPC for morgue were initiated because
nothing of the nature disclosing homicidal act was there, but
owing to some improvements and inventions of "extra judicial
confession" and that of "last seen together", the story of the
prosecution, which too appears to be unreliable, being
contradictory in nature, makes the story of the prosecution
dubious, suspicious and unreliable.
All the evidence of the prosecution says that the
field of the deceased was being cultivated by the accused persons
at the time of the alleged offence and all the witnesses apart from
the wife of the deceased, namely, Smt. Birkha PW.2, who has said
that the accused person/s were no more having cultivatory
understanding with the deceased and such an arrangement was of
bygone time, which was not existing at the time of offence, which
too cast a shadow of doubt on going for accounting alleged share
for cultivatory money.
PW.6 Asharam real brother of deceased, has
stated, a version of "last seen together" and has asserted that his
deceased brother was witnessed by this testimony asking
accounting of his cultivatory share and requesting to leave but the
accused persons coercively checked deceased from leaving and
allured him to go alongwith, but this version has not been
disclosed in the FIR timely by him, rather he did not convey this to
anybody despite after disappearance of his deceased brother and
he even did not bother to come over there, even to apprise it to
anybody else or to the police authorities after disappearance and
further unnatural death of his real brother, which too makes the
entire prosecution version unreliable and mysterious because in
his testimony PW.4 Om Prakash has said that "the event belongs
to one year back and it is a matter of about half past twelve of
mid night, Prithvi, his brother was under liquor intoxication and
was proceeding towards his home, Bakthawar Singh, Phool Singh,
Darbar Singh and Lal Singh came and stopped him, then Prithvi
uttered that he will certainly go to his home and asked them for
settling his account, PW.4 Om Prakash has also said that he too
asked the accused persons by saying that his brother was habitual
drunkard so, settle his account, hence they took Prithvi to their
Dhani for settling his account, next day he went to his in-law''s
home and when he came back, Budhram informed him about
demise of Prithvi.
PW.6 Asharam has come with a narration of
"last seen together" since he has said that the event belongs to
one year back, he had been to ditch (Khala), ten to eleven or five
to seven persons of Village were also there, they witnessed dead
body of Prithvi. He has further said that dead body of Prithvi was
lying there, while he on way to Village, "Budhram" met, hence it
was informed to him that Prithvi''s body was lying there in Khala.
He has further said that in the night of
Saturday, he had gone to his field at about twelve to one mid-
night, then a sound "do not kill"........ "do not kill"... was coming
from back side, it was voice of Prithvi since he recognized the
voice of Prithvi and Pooran Singh was saying, "kill him" and his
voice was also recognized by him but voice of his "Mama" could
not be recognized, Prithvi Singh was saying "Mama"........
"Mama"....., in his cross-examination he has said that his
statements were taken by thanedar next day. He has also said
that he witnessed the dead body on Tuesday and on Saturday, the
"voices were overheard".
He has further said that when he apprised
Budhram about witnessing, dead body of Prithvi, he did not
inform him regarding overhearing the voices during night.
Ex.D.4 statement of this witness Asha Ram
recorded under Section 174 of CrPC on 13/05/1987 did not
disclose anything regarding "over-hearing" of alleged voices like
"do not kill"...... "do not kill"..... , which are enough to say that this
witness has vitally improved his narrations and the version
regarding "over-hearing" of certain murmur or voices alike "do not
kill"........."do not kill"........makes the statements of this witness
untrustworthy.
PW.3 Budhram brother of deceased Prithvi has
also said regarding information of "last seen together" but the
morgue proceedings does not disclose anything unnatural, which
is evident to establish that nothing unnatural was reported to the
police authorities at the time of morgue proceedings and
something contrary to the version disclosed at the first instance
makes the subsequent version, unreliable, non-trustworthy and
dubious.
PW.1 Govind Ram through whom, story of "extra
judicial confession" has been introduced, has said that Bakhtavar
Singh called him and narrated him, incident regarding killing of
Prithvi, who allegedly died while tried to deter abuses.
PW.1 Govind Ram has said that he conveyed all
this to Budhram, who asked him to visit police station next day,
which too appears to be unreliable since anybody whose brother
died an unnatural death and something comes to his knowledge
regarding "extra judicial confession" having been made by some
person disclosing cause of his brother''s killing or killers, will
certainly rush to the police station along with such a person,
making disclosure and will never ask him to wait for a day and to
accompany to police station next day, in his cross-examination, he
has admitted that Prithvi was his nephew , this witness has also
said that Prithvi died, one and half month back from the time of
disclosure of "extra judicial confession", but this kind of timing,
mismatch with the prosecution story because morgue was
registered on 12/05/1987 and F.I.R was lodged on 07/06/1987.
PW.2 Birkha wife of deceased Prithvi Raj has
said that the day on which body of her deceased husband was
found, her husband was wearing Chadar, Kamij, a Gamcha was
with him and Juti were there on his feet, but these Gamcha and
pair of Juti have been shown to be recovered at the instance of
the accused persons.
Smt. Birkha has also said in his cross-examination
that her husband was habitual drunkard and did use not to return
home for days together, she has also asserted that her deceased
husband was prosecuted for the murder of his father-in-law (Sasur),
so far as the veracity of recoveries are concerned, she has
also said that prior to the identification of recovered items
"Gamcha" and "Juti" were shown to her by the police and
Budhram was also with her, when policemen shown them
Gamcha and Juti, so evidentiary value of recoveries and
identification of these recovered articles, diminishes and
becomes unnatural.
Recovery of lathi is also of no value because
Dr. Mahaveer Prasad PW.5 has said that choking of the neck
was not done with hard object like lathi rather it was done
with some soft object.
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.
Scanning of entire afore-referred evidence is
enough to suggest that the prosecution has miserably failed
to establish its case beyond doubt as per the principles of
criminal jurisprudence. Story of the prosecution is full of
mystery, doubt and un-established versions, and same is not
worthy to connect the accused with the crime beyond
contours of reasonable doubt.
On the basis of entire appreciation as dwelt above,
the appellant-accused persons are entitled to get benefit of doubt
because nothing concrete and reliable has emerged from the
prosecution evidence against the accused appellants.
Therefore, we are of considered view that learned
trial Court has committed material illegality in relying upon the
prosecution evidence so, findings of learned trial Court are liable to
be set aside.
Hence, the instant appeal is allowed and the
impugned judgment is set aside and quashed. All the accused-
appellants Lal Singh @ Lala Singh, Dalbara @ Dalbara Singh,
Bakhtawar Singh and Puran Singh are acquitted from the charges 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.