Man Singh S/o Shri Havji vs State of Rajasthan

In both these appeals filed under Section 374 (2) Cr.P.C . the

accused appellants, Man Singh and Mahesh, are challenging the

judgment dated 02nd December, 2011 passed by learned Sessions

Judge, Banswara in Session Case No.19/2011, whereby appellants

were convicted for the offence under Section 302 of IPC and

sentence of life imprisonment along with fine of Rs.25,000/- each

has been imposed against them.

Briefly stated, the facts of the case are that on 15.06.2009,

complainant- Smt. Badi (PW.1), mother of deceased, gave an

information to the SHO, Police Station- Anandpuri, to the effect

that yesterday her son, namely, Harji aged 20 years, left the

house at 05.00 pm while saying that he is going Dhana?s house at

Village Timran for taking his due amount of Rs.50/- and further

said that he will stay at Dhana?s house in the night and will come

back in the morning. As per information given by Smt. Badi, her

son did not return from the house of Dhana and today in the

morning when villagers went to forest, they saw that body of one

person was lying in the forest near the footway. Upon receiving

such information, complainant Smt. Badi went at the place of

occurrence, where the dead body was lying and identified the

dead body to be of her son. It was further alleged that her son

was wearing silver ring in his fingers and he was also having

mobile and said that who has killed her son, can be ascertain from

Dhana because her son went to the house of Dhana at Timran.

Upon the aforesaid information, formal F.I.R. No.94/2009

was registered on 16.06.2009 at Police Station Anandpuri, District

Banswara under Section 302 IPC and investigation was

commenced.

During investigation, both the accused appellants were

arrested on the basis of evidence of last seen on 19.06.2009 vide

Ex.P/4 and Ex.P/5 at 06.30 pm and 07.30 pm respectively. After

arrest information/s were given by accused appellants under

Section 27 of the Evidence Act vide Ex.P/18 and Ex.P/19 and in

pursuance of information, vide Ex.P/2 the sword was recovered

and vide Ex.P/6 axe was recovered on 20.06.2009. The site plan

of place from where the weapon axe and sward were recovered,

was prepared. The place of occurrence was also identified by the

accused appellants vide Ex.P/8. The dead body of the deceased

was taken to Primary Health Centre for postmortem, where

postmortem of the dead body was conducted by the Medical

Officer and postmortem report (Ex.P/9) was prepared and was

handed over to the investigating officer.

Before arrest, site plan of place of occurrence was prepared

by the investigating officer in front of two witnesses, namely,

Khatu Das and Deeta. ?Panchnama? of the dead body was

prepared at the place of occurrence. The shirt of accused was

taken in possession from the place of occurrence vide Ex.P/12 on

15.06.2009 itself. After postmortem, the dead body of the

deceased was handed over to brother Nanji vide Ex.P/14 on

16.06.2009. All the articles recovered during investigation were

sent for chemical examination to the FSL from where the FSL

report (Ex.P/22) was received in which human blood of ?B? group

was found upon the articles. The investigating officer after

completing the investigation, filed charge sheet against the

accused appellants on the basis of circumstantial evidence in the

court of Judicial Magistrate, Bagidora under Section 302 / 34 of IPC.

The learned Magistrate committed the case for trial to the

court of Sessions Judge, but learned Sessions Judge transferred

the case for trial to the court of Addl. Sessions Judge (FT)

Banswara but after abolition of the Fast Track courts, the case was

finally placed to the court of Addl. Sessions Judge, Banswara for

trial.

The learned trial court framed charge against the accused

appellants under Section 302 / 34 of IPC, which the accused

appellants denied and claimed trial.

In support of prosecution case, statements of 12 witnesses

were recorded by the trial court and thereafter the learned trial

court proceeded to record the statements of both the accused

appellants under Section 313 Cr.P.C. in which both the accused

appellants said that they are innocent and no offence is committed

by them, and further said that all the witnesses are giving false

evidence against us. In defence, statements of Dhanpal (DW.1)

were recorded in the trial.

After recording the evidence of both the parties, the learned

trial court heard final arguments and convicted the accused

appellants for offence under Section 302 of IPC on the basis of

circumstantial evidence of last seen and recovery of weapon &

clothes vide judgment dated 02.12.2011 in Session Case

No.19/2011 and passed sentence mentioned above. In both these

appeals, the accused appellants are challenging the validity of

judgment on various grounds.

Learned counsel for the appellants vehemently submitted

that the trial court has committed grave error while relying upon

so-called evidence of last seen so as to hold accused appellants

guilty but in fact the evidence which has been relied upon by the

trial court for last seen is not an evidence because the accused

appellants were not seen along with deceased, therefore, the

finding of the trial court is totally perverse and deserves to be

quashed.

Learned counsel for the appellants further argued that the

entire prosecution story is based upon statements of three

witnesses viz. Ranji, Mohan and Jeetmal, recorded under Section

161 Cr.P.C. but these statements are not sufficient to connect the

accused appellant with the crime because they are interested

witnesses and no independent witness has supported the

prosecution story.

It is also argued that so called information/s given by the

accused appellants u/s 27 of the Evidence Act vide Ex.P/18,

Ex.P/19, Ex.P/20 and Ex.P/21 cannot be treated to be information

under Section 27 of the Evidence Act because in those

information, there is no disclosure by the accused appellants for

the place from where the articles were recovered. But the learned

trial court committed grave error so as to hold accused appellants

guilty for such type of baseless evidence.

Learned counsel for the appellants invited our attention

towards the fact that two sharp edged weapon i.e. sword and axe

were recovered upon information given by accused appellants Man

Singh and Mahesh respectively and admittedly both these

weapons are sharp edged weapon but in the postmortem report

(Ex.P/9) all the injuries found upon the dead body were lacerated

wound. None of the injuries were incised wound, therefore, Dr.

Pankaj Modi, who conducted postmortem categorically said that all

the five injuries found upon the dead body were lacerated wound

and in the cross-examination it is admitted by him that these

injuries cannot be caused by sharp edged weapon. It is thus

submitted that there is no corroboration of allegation by the

medical evidence for inflicting injury by accused appellant by

sword and axe.

Learned counsel for the appellants vehemently argued that

the entire prosecution case is based upon circumstantial evidence

i.e. recovery of weapon at the instance of accused appellants, but

it has not been proved beyond reasonable doubt. Inspite of that,

the learned trial court convicted both the accused appellants for

the alleged crime of murder of deceased- Harji. Therefore, the

judgment impugned deserves be quashed.

Learned counsel for the appellants further argued that there

is no evidence of motive in this case, and therefore, in absence of

any evidence of motive, the learned trial court below has seriously

erred in convicting the accused appellants for the offence under

Section 302 of IPC.

Lastly it is argued that both the appeals may kindly e

allowed and the impugned judgment dated 02.12.2011 passed by

learned trial court in Session Case No.19/2011 may kindly be

quashed and set aside.

In support of his arguments, learned counsel for the accused

appellants invited our attention towards following case laws:

Sharad Birdhichand Sharda Vs. State, reported in AIR 1984

SC 1622

Ram Lal @ Ramu Vs. State of Rajasthan reported in 2014

Law Suit (Raj.) 1398

Varun Choudhary Vs. State of Rajasthan reported in 2012

(2) CJ (Cri.) (SC) 352

Per contra, learned Public Prosecutor argued that although

there is no direct evidence in this case but there is evidence of last

seen, recovery of weapon at the instance of accused appellants

upon which human blood of "B" group was found, therefore, there

is no question to disturb the finding of learned trial court based

upon circumstantial evidence to quash the judgment impugned

because the prosecution has proved its case beyond reasonable

doubt.

Learned Public Prosecutor further argued that in absence of

direct evidence, conviction can be based upon circumstantial

evidence if it is trustworthy and in this case, although there is no

evidence of motive on record, but trustworthy evidence of last

seen loudly speaks that prosecution has proved its case beyond

reasonable doubt, therefore, the trial court while considering the

said evidence rightly convicted the accused appellants for offence

u/s 302 of IPC, in which there is no illegality. The crux of the

argument of learned Public Prosecutor is that the prosecution has

proved its case beyond reasonable doubt, therefore, this appeal

may kindly be dismissed.

After hearing the learned counsel for the parties, we have

minutely scanned the entire material available on record including

the statements of prosecution witnesses as well as statements of

DW.1 Dhanpal @ Dhana.

The prosecution case is based upon evidence of last seen,

recovery of weapon viz. axe and sword and clothes. Out of 13

prosecution witnesses, witnesses viz. Chetan Lal (PW.5), Mangla

(PW.6) and Chatra (PW.7) who are the witness of recovery, turned

hostile and did not support the prosecution case for recovery of

weapon. The complainant, Smt. Badi (PW.1) specifically stated in

her statements that two persons, namely, Ranji and Mohan

informed him that they saw his son Harji in the evening and also

saw accused Mahesh and Man Singh coming from forest. No

specific allegation is levelled by Smt. Badi except disclosing the

fact that the appellants, Mahesh and Man Singh were coming from

the forest. The witness PW.2- Ranji who is close relative of the

"VERNACULAR MATTER OMITTED"

The other witnesses, namely, Mohan (PW.3) and Jeetmal

(PW.4) also supported the above statements of PW.2- Ranji.

Upon consideration of statements of these three witnesses, it

is revealed that none of these witnesses saw the deceased along

with appellants. More so, all these three witnesses stated that

accused appellant Man Singh was having sword in his hand and

accused appellant Mahesh was having axe in his hand. Meaning

thereby, as per statements of these witnesses both the accused

appellants were having sharp edged weapon in their hands when

these witnesses saw them while coming from forest. There is no

doubt that both the weapon axe and sword are sharp edged

weapon, therefore, if any person causes injury by such weapons

to any person, then, obviously incised wound will cause on the

person but it is very strange that as per postmortem report of the

deceased- Harlal, none of the injuries found upon the body were

incised wound. According to statement of Dr. Pankaj Modi (PW.8),

who was posted as Medical Officer at Primary Health Centre,

Bagidora, there were five injuries on the person of deceased and

all the five injuries were lacerated wounds. In the cross-

"VERNACULAR MATTER OMITTED"

It is worthwhile to mention here that there is no evidence of

motive. Meaning thereby, the entire prosecution case is based

upon evidence of last seen, recovery of sharp edged weapon and

clothes but the witnesses of recovery i.e. PW.5- Chetanlal, PW.6-

Mangla and PW.7- Chatra, turned hostile and did not support the

recovery of weapon and clothes. Thus, it is a case in which the

prosecution has failed to prove its case beyond reasonable doubt.

It is basic principle of criminal jurisprudence that prosecution

should prove its case beyond reasonable doubt on the basis

circumstantial evidence if direct evidence is not available.

In this case, the entire evidence loudly speaks that the

prosecution has failed to prove its case beyond reasonable doubt

because all the witnesses of last seen nowhere stated that they

saw accused appellants along with deceased-Harji and the only

statements is that they were coming from forest having sword and

axe in their hands. Further, there is no evidence of motive on

record to connect the accused appellants with the crime because

as per prosecution case, deceased Harji left the house for

recovering Rs.50/- from one Dhanna at Village Timran.

In the case of Sharad Birdhichand Sharda (surpa), the

Hon?ble Apex Court has held that the prosecution is required to

prove its case beyond reasonable doubt, if the allegation is based

on circumstantial evidence. The following parameters/ guidelines are laid down by the Hon''ble Supreme Court, which reads as

under:-

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions."

(2) 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,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."

In the case of Ram Lal @ Ramu Vs. State of Rajasthan

reported in 2014 Law Suit (Raj.) 1398, the Hon?ble Apex Court

held that each and every incriminating circumstance must be

clearly established by reliable and clinching evidence and the

circumstances so proved must form a chain of events for which

the only irresistible conclusion that can be drawn is the guilt of the

accused and that no other hypothesis against the guilt is possible.

Further, held that in a case depending largely upon circumstantial

evidence, there is always a danger that conjecture or suspicion

may take legal proof. It was also held that court should have

satisfy itself that various circumstances in the chain of events

have been established clearly and such complete chain of events

must be such as to rule out a reasonable likelihood of the

innocence of the accused. The Hon?ble Apex Court in the case of

Ram Lal @ Ramu (supra) held as infra:

"18. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of the legal proof. There is a long distance between ?may be true? and ?must be true?. When a case rests squarely on circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words 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 it must show that in all human probabilities the act must have been done by the accused."

The aforesaid principle was further reiterated in the case of

Varun Choudhary Vs. State of Rajasthan reported in 2012

(2) CJ (Cri.) (SC) 352, in which the following adjudication was

made by Hon?ble Apex Court, which reads as infra:

"(21) In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution.

Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction.

(24) It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath vs. State of Karnataka, (2010)8 SCC 593, para 24, it has been stated that

"in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total umulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved............. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".

(25) In another case of C. Chenga Reddy v. State of A.P ., reported in (1996) 10 SCC 193, this Court has held that:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, al l the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

From the perusal of the entire evidence coupled with

aforesaid adjudication made by the Hon?ble Supreme Court, it

could without any hesitation we find that the prosecution has

miserably failed to lead reliable evidence so as to complete the

chain of circumstances to prove the fact that accused appellants

are guilty for commission of offence and none else. The entire

case rests squarely on circumstantial evidence, therefore,

inference of guilt can be justified only when all incriminating facts

and circumstances are found to be incompatible with the

innocence of the accused.

In view of above, we are of the opinion that the accused

appellants are entitled for benefit of doubt.

Consequently, both these criminal appeals are hereby

allowed. The judgment dated 02nd December, 2011 passed by

learned Sessions Judge, Banswara in Session Case No.19/2011

convicting and sentencing the accused appellants for the

offences under Section 302 of IPC is hereby quashed. The

accused appellants be set at liberty unless required in any

other case.

We have also considered the question of compensation to be

paid to the mother of the deceased Harlal under Section 357-A of

the Cr.P.C. In our opinion, the mother of the deceased Smt. Badi

W/o Sh. Somji, is entitled for compensation under the Victim

Compensation Scheme, 2011 by the District Legal Service

Authority, Banswara. Therefore, it is ordered that compensation of

Rs.2,50,000/- may be paid to the complainant, Smt. Badi (mother

of deceased- Harji) within a period of two months from the date of

receiving the certified copy of this order. The copy of this

judgment may be sent to District Legal Service Authority,

Banswara, for compliance.

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/- each and a

surety bond in the like amount, 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.