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Judgment
The instant appeal has been filed by the two accused-
appellants namely Bhanwar Lal and Pratap Singh under Section
374 Cr.P.C. against the judgment and order dated 05.09.2001
passed by the learned Addl. Sessions Judge (FT), Rajsamand in
Sessions Case No.28/2001 by which the learned trial court
convicted the accused-appellant Pratap Singh for offence under
Sections 302 and 201 IPC and convicted the accused-appellant
Bhanwar Lal for offence under Section 302 / 34 and 201 IPC and
passed the following sentence which reads as under :
PRATAP SINGH
Section 302 IPC-- Life Imprisonment and a fine of Rs.5,000/-
Section 201 IPC-- one year''s R.I. and a fine of Rs.2,000/-
BHANWAR LAL
Section 302 / 34 IPC-- Life Imprisonment and a fine of Rs.5,000/-
Section 201 IPC-- one year''s R.I. and a fine of Rs.2,000/-
In default of payment of fine for both the offence to further undergo 1 year''s S.I.
Both the sentences were ordered to run concurrently.
During the pendency of this appeal, the accused-appellant
Bhanwar Lal died on 18.12.2011. Therefore, vide order dated
04.07.1997 this Court dismissed the appeal qua the accused-
appellant Bhanwar Lal as abated.
Now we are deciding the appeal of accused-appellant Ptarap
Singh only.
As per the facts of the case, Kheem Singh (PW-1) brother of
the deceased Raghuveer Singh lodged an oral report at Police
Station Raj Nagar, District Rajsamand on 20.11.1999 at about
1:15 PM. Upon which FIR No.783/1999 (Ex-P/2) was registered on
20.11.1999. In the FIR following allegations were levelled by the
complainant Kheem Singh which reads as under :
"VERNACULAR MATTER OMITTED"
After registration of FIR, the SHO Police Station Raj Nagar
commenced investigation and during investigation on the basis of
extra judicial confession made by the accused-appellants Pratap
Singh and Late Bhanwar Lal (died during the pendency of the
appeal) made before Goverdhan Singh (PW-9) and Bhanwar Singh
(PW-10), the SHO P.S. Raj Nagar arrested the accused-appellants
Pratap Singh and Late Bhanwar Lal and upon information given
under Section 27 of the Evidence Act (Ex-24) by accused-
appellant Pratap Singh recovered sward vide Ex-P/18 on
07.12.1999. The usual investigation was made at the place of
occurrence and on completion of investigation filed charge-sheet
against the accused-appellants Pratap Singh and Late Bhanwar Lal
in the court of Chief Judicial Magistrate, Rajsamand for offence
under Section 302 and 201 / 34 IPC fromwhere the case was
committed for trial to the Court of District and Sessions Judge,
Rajsamand.
The District and Sessions Judge, Rajsamand thereafter
transferred the case for trial in the Court of Additional District and
Sessions Judge, Rajsamand where trial was concluded. Before
transferring the case to the Court of Additional District and
Sessions Judge, Rajsamand, the District and Sessions Judge after
providing an opportunity of hearing framed charges against the
accused-appellants Pratap Singh and Late Bhanwar Lal for offence
under Section 302 and in alternative under Section 302 / 34 and
Section 201 IPC. Both the accused-appellants denied the charges
and prayed for trial.
In the trial, an opportunity was granted to the prosecution to
lead evidence. From the prosecution side 14 witnesses were
produced to prove the case and thereafter statement of accused-
appellants Pratap Singh and Late Bhanwar Lal were recorded
under Section 313 Cr.P.C. but they denied all the allegations
levelled by the prosecution witnesses and stated that it is a case
of false implication.
In spite of granting an opportunity to lead evidence in
defence, no evidence was produced by the accused-appellants
Pratap Singh and Late Bhanwar Lal in their defence.
The learned Trial Court after providing an opportunity of
hearing to both the parties finally decided the Sessions Case
No.28/2001 vide judgment and order dated 05.09.2001 and held
the accused-appellant Pratap Singh guilty for commission of
offence under Section 302 and 201 IPC and held accused-
appellant Bhanwar Lal guilty for commission of offence under
Section 302 / 34 and 201 IPC and passed the sentence mentioned
above.
As observed above, the accused-appellant Bhanwar Lal died
during the pendency of this appeal. Therefore, we are adjudicating
the appeal qua the accused-appellant Pratap Singh.
Mr. Chaitanya Gehlot, counsel appearing for the accused-
appellants has vehemently argued that no eye-witness of the
case, nor any allegation is levelled in the FIR with regard to
motive by the complainant Kheem Singh (PW-1), brother of the
deceased Raghuveer Singh, but during investigation after 15 days
of the incident on 05.12.1999 for the first time statement of two
witnesses were planted by the prosecution to connect the
accused-appellants with the crime on the basis of extra judicial
confession. The statement under Section 161 Cr.P.C. of witnesses
Goverdhan Singh (PW-9) and Bhanwar Singh (PW-9) were
recorded on 05.12.1999 in which a story of extra judicial
confession was concocted by the prosecution so as to connect the
accused-appellants with the crime and after recording their
statement the accused-appellant Pratap Singh was arrested on
06.12.1999 vide Ex-P/21 and after his arrest upon his information
Ex-P/22 the sword was recovered vide Ex-P/18 on 07.12.1999.
Counsel for the accused-appellants further argued that it is a case
in which not only the evidence of extra judicial confession was
created but also false recovery of sword was made by the
Investigating Officer which is evident from the fact that the
accused-appellant Pratap Singh was in Police Station when the
Investigating Officer called the witnesses of extra judicial
confession. To prove the said fact, learned counsel for the
accused-appellants invited our attention towards the statement of
Goverdhan Singh (PW-9) who has categorically stated in his cross-
examination that when he was called by the Police in Police
Station, Pratap Singh was already sitting in Police Station.
Meaning thereby it is a pure case of false implication on the basis
of so called concocted evidence of extra judicial confession.
Learned counsel for the accused-appellants further argued that
there was no occasion or reason left with the accused-appellants
to make extra judicial confession after 15 days before two
unknown persons Goverdhan Singh (PW-9) and Bhanwar Lal (PW-
10) but the learned trial court completely ignored the said fact and
erroneously accepted their testimony so as to hold accused-
appellants guilty for alleged offence of murder on the basis of
circumstantial evidence and extra judicial confession. Learned
counsel for the accused-appellants argued that the recovery of
sword is totally concocted because as per record of the case the
sword was deposited in Malkhana on 20.11.1999 whereas as per
Ex-P/18 sword was recovered at the instance of accused-appellant
Pratap Singh on 07.12.1999. Therefore, the recovery of sword
from the accused-appellant is totally false.
So far as recovery of cloths of accused-appellants are
concerned, it is submitted that the said recovery was made at the
instance of accused-appellant Pratap Singh on 07.12.1999 and at
the instance of Late Bhanwar Lal on 13.12.1999 but these articles
were deposited in Malkhana on 13.12.1999. Thus there is great
discrepancy with regard to the fact of depositing the articles.
Learned counsel for the accused-appellants submitted that link
evidence stands broken for the reason that Shamshuddin (PW-8)
Malkhana In-charge has stated on oath that articles were sent to
FSL with Constable Baluram (PW-13) on 27.12.1999 but Baluram
(PW-13) stated before the Court that the articles were given to
him by Shamshuddin (PW-8) on 28.12.1999. In view of above, it
is submitted that the entire case which is based upon the extra
judicial confession in recovery of sword so as to connect the
accused-appellants with the crime has not been proved beyond
doubt. Therefore, the conviction and sentence passed against the
accused-appellant Pratap Singh deserves to be quashed and he is
entitled to be acquitted from the charges levelled against him.
Per contra, learned Public Prosecutor vehemently argued that
it is a case in which two trustworthy witnesses Goverdhan Singh
(PW-9) and Bhanwar Singh (PW-10) categorical stated before the
Court that extra judicial confession was made by the accused-
appellant Pratap Singh before them in which he has categorically
narrated the whole incident of murder of Late Raghuveer Singh by
inflicting injury by sword. Therefore, there is no reason to disturb
the findings of learned trial court based upon the trustworthy
witnesses of extra judicial confession.
Learned Public Prosecutor further argued that the
prosecution has proved recovery of sword and cloths of accused-
appellants and as per FSL report human blood of AB group was
found upon the cloths and sword recovered at the instance of the
accused-appellants. Therefore, there is no question to say that the
prosecution has concocted false story so as to connect the
accused-appellant Pratap Singh with the crime committed by him.
More so it is a case in which investigation was conducted because
there was no eye-witness of the case but during investigation
statement of two independent witnesses were recorded before
whom extra judicial confession was made by the accused-
appellants and the learned trial court while relying upon the said
confessional statement held the accused-appellants guilty.
Therefore, there is no error in the judgment which requires no
interference in this appeal. Learned Public Prosecutor argued that
the finding of the learned trial court does not suffer from any
infirmity or illegality, therefore, the instant appeal may kindly be
dismissed.
Heard the learned counsel for the accused-appellants and
the learned Public Prosecutor and perused the impugned judgment
as also record.
After hearing the learned counsel for the parties, we have
perused the FIR filed by the complainant Kheem Singh, brother of
the deceased Raghuveer Singh. Admittedly there is no whisper
about the motive or involvement of the accused-appellants with
the crime. It is also obvious that before recording evidence of two
witnesses under Section 161 Cr.P.C. on 05.12.1999 after 15 days of the incident no evidence came on record so as to connect the
accused-appellants with the crime but as per statement of
Goverdhan Singh (PW-9), he was called by SHO Police Station
Rajsamand at the Police Station and at that time accused-
appellant Pratap Singh was already sitting in the Police Station. In
the cross-examination following statement was given by
Goverdhan Singh (PW-9) before whom the alleged confessional
statement was made by the accused-appellant Pratap Singh which
reads as under :
"VERNACULAR MATTER OMITTED"
Similarly the witness Bhanwr Singh (PW-10) before whom
alleged confessional statement was made by the accused-
appellant Pratap Singh gave following statement in his cross-
examination which reads as under :
"VERNACULAR MATTER OMITTED"
Upon perusal of above statement, it is obvious that the story
of extra judicial confession narrated by these witnesses his totally
concocted because their statements were recorded after 15 days
from the date of occurrence before that accused-appellants were
already taken in custody by the Police Station and they were
sitting in the Police Station when these witnesses were called. It is
settled principle of law that evidence of extra judicial confession is
weak type of evidence. In this case, it emerges from the evidence
that there was no occasion for the accused-appellants to make
confession before two unknown persons i.e. Goverdhan Singh
(PW-9) and Bhanwar Singh (PW-10) but the entire prosecution
case is based upon the testimony of these witnesses before whom
confessional statement was alleged to be made.
We have perused the statement of Himmat Singh (PW-15)
who has categorically statement in the cross-examination that the
accused-appellants were taken in judicial custody by the Police
after 5-6 days from the date of occurrence but as per
documentary evidence the accused-appellant Pratap Singh was
arrested on 06.12.1999 and Late Bhanwar Lal was arrested on
13.12.1999, therefore, obviously when the alleged extra judicial
confession was made or the recovery was stated to be made, the
accused-appellants were already in police custody. We have
perused the statement of Smt. Kailash (PW-6) wife of Raghuveer
Singh. The said witness has categorically stated in her cross-
examination that the accused-appellants Pratap Singh and
Bhanwar Lal were taken in custody by the Police after 2-3 days
from the date of incident. Following statement was given by Smt.
Kailash (PW-6) in her cross-examination which reads as under :
"VERNACULAR MATTER OMITTED"
The witness Kheem Singh (PW-1) accepted in the cross-
examination that accused-appellants Pratap Singh and Bhanwar
Lal were taken in custody by the Police after 2-3 days from the
date of incident. Following statement was given by Kheem Singh
(PW-1) which reads as under :
"VERNACULAR MATTER OMITTED"
Upon perusal of the statements of the witnesses more
particularly statements of author of FIR Kheem Singh (PW-1),
brother of the deceased and Smt. Kailash (PW-6) wife of the
deceased, it is obvious that the accused-appellants were taken in
custody by the Police just after 2-3 days of the occurrence but
their arrest was shown on 06.12.1999 which is evident from the
statement of two witnesses Goverdhan Singh (PW-9) and Bhanwar
Singh (PW-10) in which both the witnesses categorically stated
that they were called in the police station and in the police station
the police officials asked them to hear the accused-appellant
Pratap Singh when he was in lock up. Meaning thereby both the
accused witnesses of extra judicial confession Goverdhan Singh
(PW-9) and Bhanwar Singh (PW-10) stated before the Court that
the extra judicial confession was made in the police station in the
presence of police and till that time the accused-appellants were
not arrested by the Police. In view of above, there is no doubt that
the whole prosecution story was concocted so as to involve the
accused-appellants on the basis of evidence of extra judicial
confession. Once the evidence of extra judicial confession is
disbelieved then other evidence of recovery become irrelevant so
as to hold the accused-appellants guilty for the offence in
question. In view of above, we are of the firm opinion that the
whole prosecution story is seriously doubtful, therefore, the
accused-appellant Pratap Singh is entitled for benefit of doubt and
the judgment impugned deserves to be quashed.
Upon assessment of entire evidence the findings of
conviction recorded by the learned trial court is not sustainable in
law because the learned trial court was under obligation to
consider the statement of the witnesses as a whole including
cross-examination so as to arrived at with the finding of guilt on
the basis of extra judicial confession which is seriously doubtful in
view of statement of Kheem Singh (PW-1), Smt. Kailash (PW-6),
Goverdhan Singh (PW-9) and Bhanwar Singh (PW-10) because all
these witnesses categorically said that accused were taken in
custody by the Police just after three four days from the date of
occurance.
Recently in the judgment of the Hon''ble Supreme Court in
the case of Raj Kumar Singh @ Raju @ Batya Vs. State of
Rajasthan reported in (2013) 5 SCC 722, the Hon''ble Apex
Court while discussing earlier judgments rendered by Apex Court,
held as infra:
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ''may be'' and ''must be'' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ''may be'' true and ''must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. ......
In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence".
xxx 25. In M.G. Agarwal v. State of Maharashtra : AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under:
"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
xxx
In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the Appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the Appellant are set aside. The Appellant be released forthwith unless wanted in some other case."
In view of above discussion and in the light of aforesaid
judgment and evidence on record, we are of the firm opinion that
the impugned judgment is not sustainable in law.
Consequently, the appeal is allowed. The judgment dated
05.09.2001, passed by the learned Additional Sessions Judge
(Fast Track), Rajsamand is hereby quashed and set aside. The
accused-appellant Pratap Singh is on bail, his bail bonds are
hereby cancelled and he is not required to surrender.
Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellant is directed to forthwith furnish
personal bonds in the sum of Rs.20,000/- 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.