Mangal vs State of Rajasthan

R.S. Chauhan, J.—Mangal, the appellant, has challenged the judgment dated 23.5.2006, passed by the Additional Sessions Judge (Fast Track) No. 2, Bharatpur whereby the learned Judge has convicted him for offences under Sections 302 and 363 IPC. For the former offence, the learned Judge has sentenced him to life imprisonment, has imposed a fine of Rs. 5000/- and has directed him to further undergo six months of rigorous imprisonment in default thereof. For the latter offence, the learned Judge has sentenced him to three years of rigorous imprisonment, and imposed a fine of Rs. 1000/-, and has directed him to further undergo three months of rigorous imprisonment in default thereof.

Briefly, the facts of the case are that on 21.1.2006 around 8:15 AM, the complainant, Brijlal (P.W.1) submitted a written report (Ex.P.1) before the SHO, Police Station Kotwali, Bharatpur. The said report when translated in English reads as under:--

"To, The SHO, Kotwali, Bharatpur.

Sir,

It is submitted that yesterday on 20.1.2006 around 1:00 PM in the afternoon, my nephew, Mangal Singh, took my maternal grand-child, Ved Prakash @ Tampu S/o Mukesh with him from our house. Ved Prakash @ Tampu had a cycle with him. When Ved Prakash did not return by the evening, we inquired from Mangal Singh with regard to the whereabouts of Ved Prakash. But he did not give any satisfactory answer. I do not know where Mangal has taken my maternal grand-son, Ved Prakash @ Tampu. Whether he has taken him to his house or somewhere else, I do not know. Therefore, I pray that proceedings should be initiated.

Sd/-"

On the basis of the said written report (Ex.P.1), a formal FIR (Ex.P.2), FIR No. 25/2006 was registered for offence under Section 363 IPC. Subsequently, during the investigation, the accused, Mangal Singh, was arrested by the police. During interrogation he gave a statement (Ex.P.17) under Section 27, Evidence Act. In pursuance of the said statement, the dead body of Ved Prakash was discovered in a well. The site plan (Ex.P.14) of place of recovery was made, the Panchayatnama (Ex.P.3) was drawn and the post-mortem was performed by Dr. Banai Singh. The Post-Mortem Report is Exhibit-P.18. At the end of investigation, Mangal Singh, was put up for trial. By order dated 10.4.2006, the learned trial court framed charges for offences under Sections 363 and 302 IPC against the appellant. He denied the charges, and claimed trial.

In order to support its case, the prosecution examined nine witnesses, and submitted eighteen documents. In turn, the defense examined a single witness, but did not submit any document. After completion of the trial, the learned Judge has convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court.

Before entering into the contentions raised by the learned counsel for the parties, it is essential to briefly summarize the evidence produced by the prosecution and the defense.

Brijlal (P.W.1), the complainant and the grand-father of the deceased, has turned hostile. He has not supported the prosecution case.

Similarly Kishan (P.W.2), a witness of receipt of corpse (Ex.P.7) and of the Panchayatnama (Ex. P.3) has turned hostile. He, too, has not supported the prosecution case.

Similarly, Mahesh Chand (P.W.3), Khem Chand (P.W.4) have also turned hostile and have not supported the prosecution case.

Jagdish (P.W.5) claims that the appellant, Mangal, had sold him an old non-usable cycle for Rs. 115/-. Mangal had told this witness that since he is not in a position to buy flour for making food, he is selling his bicycle to him.

Jitendra (P.W.6), the real brother of appellant, Mangal, and uncle of deceased child, has also turned hostile. He, too, has not supported the prosecution case.

Mukesh (P.W.7), the father of the deceased child, claims that Mangal is his real younger brother. On 20.1.2006 Mangal had taken his son, Ved Prakash, with him. At that time, this witness was working as labourer at Jama Masjid. The fact that Mangal had taken his son, Ved Prakash, with him was told to him by his cousin brother, Abhay Singh. They kept on looking for his son for some time. Subsequently, his uncle Brijlal filed a report about missing son at the police station. On the next day, they discovered the dead body of Ved Prakash in a well. The dead body of Ved Prakash was pointed out by Mangal. He also admits that the dead body was not taken out in front of him, but was taken out before Mahesh Chand. Although this witness has proven the arrest memo (Ex.P.12), the recovery memo of the dead body (Ex.P.13) and the site plan of the place of recovery (Ex.P.14), but in his cross-examination he admits that he has signed these documents at the police station. He also admits that he did not go to the well. He also admits that the documents were signed later on.

Sahdev Kaviya (P.W.8) is the Investigating Officer. He has proven the various documents made during the investigation.

Dr. Bane Singh (P.W.9) is the doctor who was working as Medical Jurist in RBM Hospital, Bharatpur. He performed the autopsy on 21.1.2006 at 2:30 PM. According to him, Ved Prakash had died due to asphyxia, due to drowning. There was no external injury on his body. He had died within twelve to twenty-four hours prior to the autopsy. The Post-Mortem Report is Exhibit-P.18.

In defense, Banne Singh has appeared as D.W.1. According to him, "He knows Kishan Singh and his four sons namely, Mukesh, Jitendra, Mangal and Mahesh. They are his neighbors. He also knew Ved Prakash @ Tampu. According to him, Ved Prakash has died; he died four months ago. He had left his house without informing anyone. The next day he learnt from the Hospital that Ved Prakash has died. Upon receiving this information, he and other persons from the village had gone to the hospital. Ved Prakash used to indulge in gambling and taking drugs. He also claimed that he knew Jagdish S/o. Phusya, who sells fruits and lives near B. Narain Gate. He does not sell junk items, or iron items. According to this witness, Kishan, who is the father of the accused, had spoken to Mukesh, the father of the deceased, after Mangal was falsely implicated in the present case. This witness was called during their discussion as he was a former counselor (Parshad). Mukesh had promised that in case the land falling in the share of appellant, Mangal, were given to him, then he would change his statement before the court. He had also threatened Kishan, the father of the accused, that in case the land is not given to him, he would ensure that Mangal suffers a punishment. He further claimed that Ved Prakash was not killed by Mangal. Why would any uncle want to kill his nephew?"

A bare perusal of the evidence quoted above clearly reveals that the entire case against the appellant is based on circumstantial evidence.

Mr. Vivek Bajwa, the learned counsel for the appellant, has vehemently contended that although the case is based on circumstantial evidence, the prosecution has not been able to prove its case to a hilt. The only evidence that the prosecution has brought against the appellant is the fact that Ved Prakash''s body was discovered at the instance of the appellant. However, relying on the case of Bakhshish Singh Vs. State of Punjab, AIR 1971 SC 2016 : (1971) CriLJ 1452 : (1971) 3 SCC 182 : (1971) 3 UJ 281 , the learned counsel has contended that the recovery of a dead body, by the police, at the instance of the accused, is not a conclusive circumstance for convicting the accused. Such a recovery merely raises strong suspicion against the accused. However, suspicion no matter how strong cannot take the place of proof. To convict the appellant on the fragile piece of recovery of dead body is to morally convict him. Moreover, most of the witnesses, including the father of the deceased, have turned hostile and have not supported the case of the prosecution. Therefore, the prosecution is unable to stand on its two legs. Therefore, the learned Judge was unjustified in convicting the appellant for offences under Section 302 and 363 IPC.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has contended that even if the prosecution witnesses have not supported the case of the prosecution, even then the recovery of the dead body at the instance of the appellant is sufficient to prove his guilt.

Heard the learned counsel and perused the impugned judgment, and examined the record.

Relying on the case of Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343 : (1953) CriLJ 129 : (1952) 1 SCR 1091 , recently in the case of Vasant Sampat Dupare Vs. State of Maharashtra, (2014) 4 CCR 520 : (2014) 4 Crimes 337 : (2015) 1 RCR(Criminal) 127 , the Hon''ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence as under:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

Therefore, while appreciating the evidence in the present case, these principles will have to be kept in mind.

It is, indeed, trite to state that the prosecution has to cover the long distance between "may be true" and "must be true". Moreover, no matter how strong suspicion is, it cannot replace proof [Ref. to Sujit Biswas Vs. State of Assam, (2013) 6 AD 243 : AIR 2013 SC 3817 : (2013) CriLJ 3140 : (2013) 3 JCC 1887 : (2013) 8 JT 570 : (2013) 3 RCR(Criminal) 227 : (2013) 7 SCALE 546 : (2013) 12 SCC 406 , Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, (2013) 5 AD 433 : AIR 2013 SC 3150 : (2013) CriLJ 3276 : (2013) 8 JT 462 : (2013) 6 SCALE 635 : (2013) 5 SCC 722 , and to Md. Faizan Ahmad @ Kalu Vs. The State of Bihar, (2013) 1 AD 269 : (2013) CriLJ 1631 : (2013) 1 Crimes 21 : (2013) 1 JT 233 : (2013) 1 RCR(Criminal) 993 : (2013) 1 SCALE 51 : (2013) 2 SCC 131 : (2013) AIRSCW 1286 : (2013) 1 Supreme 103 ].

In the present case, the only evidence produced by the prosecution is the recovery of the dead body from a well at the instance of the appellant by recover memo (Ex.P.13). The said recovery was witnessed by, Jitendra (P.W.6) and Mukesh (P.W.7). However, Jitendra (P.W.6) has turned hostile and has not supported the recovery. Mukesh (P.W.7) had claimed that on the fateful day, Ved Prakash had gone on a cycle with Mangal, had delivered his lunch at Jama Masjid, and had returned back home. He further claimed that the dead body of Ved Prakash was recovered before Mahesh. He was confronted by the Public Prosecutor with his police statement (Ex.P.16) given under Section 161 Cr.P.C. Even to the question posed by the learned Public Prosecutor, he claimed that the dead body was recovered before Jitendra and Mahesh, and not before him. In his cross-examination, he claimed that all the documents were signed by him at the police station. Hence, even this recovery witness has not supported the recovery.

In the case of Bakshish Singh (supra), the Hon''ble Supreme Court has opined that recovery of a dead body from an open place, even at the instance of the accused, would not be a conclusive circumstance for convicting the accused. For, the presence of the dead body at an open place could be known by anyone and not just by the accused. Such a recovery merely raises a suspicion against the accused.

In the present case, the prosecution has failed to cogently establish the recovery of the dead body at the instance of the appellant. Even if the recovery were to be accepted hypothetically, even then the dead body has been recovered from a well, which does not belong to the accused. Therefore, the recovery is from an open place. Thus, the recovery of the dead body does not connect the accused to the alleged crime. Such a recovery merely points the needle of suspicion towards the appellant, but does not tip the scale towards his guilt. Hence, it is too fragile a piece of evidence for convicting the appellant for offence under Section 302 IPC.

Since Brijlal (P.W.1), Kishan (P.W.2), Mahesh Chand (P.W.3), Khem Chand (P.W.4) and Jitendra (P.W.6) have turned hostile, there is no evidence to show that the deceased, Ved Prakash, was seen on the last occasion with Mangal. Moreover, there is no evidence to show that Mangal had enticed, or taken away Ved Prakash from the lawful guardianship. Therefore, the appellant''s conviction under Section 363 IPC is absolutely unjustified.

For the reasons stated above, this appeal is hereby, allowed. The appellant is acquitted of the charges framed against him. Since he is languishing in Jail, he shall be released forthwith, if not wanted in any other case.

Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Mangal, 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 trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.