Prem Singh vs State Of Rajasthan

The instant criminal appeal has been filed by the appellants

Prem Singh and Chhinder Singh @ Chinderpal Under Section

374(2) Cr.P.C. against the judgment dated 12.07.1990 in Sessions

Case No.72/1987 passed by learned Addl. Sessions Judge,

Raisinghnagar whereby both the accused-appellants were held

guilty for offence under Sections 302 and 302 / 34 IPC respectively

and sentence for life imprisonment along with fine of Rs.500/-

each were imposed against them.

As per brief facts of the case, the complainant PW-1 Dalip

Singh lodged an FIR (Ex.P/1) at Police Station Gharsana on

16.05.1987 at 8.15 am stating therein that he and his father-in-

law Karam Singh (deceased) purchased one square (Bigha) land

at about seven years back. The said land was distributed and

cultivated by them separately and they are living separately in

their houses. As per complaint his brother-in-law Tara Singh S/o

Shri Karam Singh was residing at Village Maluwala, Punjab was

not having good relations with his father.

As per allegations in the FIR about five months back Prem

Singh S/o Shri Tara Singh came there and started living with his

grandfather Karam Singh. After some time, Prem Singh asked his

grandfather that your land may be transferred in his name, but

Karan Singh grandfather refuse to transfer his land, therefore,

quarrel took place in between them.

After quarrel, Prem Singh went back to Punjab and before

one month from the date of incident Tara Singh and his wife came

there and started living with his father Karan Singh. They asked

one Fateh Singh that he may intervene and make request to

Karam Singh to transfer the land in their favour. Upon inquiry by

the Fateh Singh, Karam Singh inform that his grandson Prem

Singh will kill him, so I will not keep Prem Singh with him nor

transfer the land, thereafter Tara Singh and his wife went back to

Punjab.

As per information on 15.05.1987, when he was coming

from Village Khajuwala, in the village, Prem Singh, Chinderpal and

Hamir Singh met and he asked them to come at his house. At that

time Prem Singh asked that you may request his grandfather

Karam Singh to transfer the land otherwise he will kill him. After

saying so all the three persons went to the house of Shyam Singh

and informant went to his own house. As per complaint at about

3.30 am in the night, one Mahendra Singh came to his house and

informed that Karam Singh has been murdered, upon said

information the informant immediately went to the house of

Karam Singh and saw that his dead body was lying on cot. Upon

aforesaid report submitted by the complainant Dalip Singh

(PW-1), FIR (Ex.P1) was registered at Police Station Gharsana.

After registration of FIR the police went on spot and

prepared site plan and Panchnama of the dead body so also took

other material in possession from place of occurrence for

investigation and prepared (Ex.P/2), site plan (Ex.P/3), details of

dead body (Ex.P/4), Panchnama of dead body (Ex.P/6), the blood

sustained cot was also taken in possession, the dead body if tge

deceased Karam Singh was taken to the Government Hospital for

postmortem where postmortem was conducted and report

(Ex.P/21) was prepared on 16.05.1987. As per postmortem report

Ex.P/21), the cause of death was Comma due to injury on the

brain.

The dead body of the deceased was handed over to Dalip

Singh son-in-law of Karam Singh for cremation vide Ex.P/7. The

accused appellants were arrested vide Ex.P/16 and P/17

respectively. Upon information (Ex.P/16) given by the accused

appellant Prem Singh under Section 27 of the Evidence Act, one

wooden stick (Lathi) was recovered vide Ex.P/8 and all the articles recovered during investigation, were sent for chemical

examination to the FSL from where the FSL report Ex.P/19 was

received.

On completion of investigation, charge sheet was filed

against the accused-appellants on the basis of extra judicial

confession and recovery of Lathi and other articles in the Court of

Munsiff and Judicial Magistrate, Anupgarh from where case was

committed to the court of Addl. Sessions Judge, Raisinghnagar for

trial.

In the trial after providing an opportunity of hearing, the

charge under Section 302 read with Section 34 IPC was framed

against both the accused appellant, but they denied the charge

and prayed for trial.

In the trial, statements of ten prosecution witnesses were

recorded and thereafter statement of the accused appellants were

recorded under Section 313 Cr.P.C. wherein they denied all the

allegations made by the prosecution witness and said that it is a

case of false implication. The accused appellant Prem Singh gave

following explanation, which reads as under:-

"VERNACULAR MATTER OMITTED"

Accused appellant Chandar Singh while denying the

allegations of prosecution witnesses gave following explanation

which reads as under:-

"VERNACULAR MATTER OMITTED"

In defence statement of Karam Singh (DW-1) S/o Hira Singh

were recorded in defence. After recording evidence of both the

sides, the learned trial Court finally decided the case vide

judgment dated 12.07.1990 in Sessions Case No.72/1987

whereby the accused appellant Prem Singh was convicted for

offence under Section 302 IPC and accused appellant Chinder

Singh @ Chhinderpal was convicted for offence under Section

302 / 34 IPC and sentence mentioned above was passed against

them.

In this appeal, the appellants have challenged the validity of

the impugned judgment dated 12.07.1990 on various grounds.

Learned accused appellant submits that there is no eye

witness in this case so as to connect to the accused appellant with

the crime. The author of FIR is son-in-law of the deceased Karam

Singh and accused appellants are grandsons of the deceased,

there was no reason for them to kill their own grandfather

because they were already having their right in the land in

question being grandson of the deceased, whereas the

complainant Dalip Singh was having motive to kill his father-in-law

to grab the entire land because land was jointly purchased by the

deceased Karam Singh and complainant Dalip Singh, therefore, a

false story was concocted by the complainant Dalip Singh so as to

held the appellants guilty for the alleged offence which is not

committed by them. Learned counsel for the appellant argued

that, upon perusal of the statement of complainant Dalip Singh it

will reveal that he has categorically stated in the cross

examination that there were 15 to 20 injuries upon the body of

the deceased but this allegation has not been proved by the

postmortem report because as per the postmortem report there

was only one injury upon the head of the deceased, therefore, it is

obvious that in absence of any reliable and trustworthy evidence,

the accused appellants are convicted solely on the basis of extra

judicial confession and as per settled Principle of Law the evidence

of extra judicial confession is very weak type of evidence. It is also

submitted that upon perusal of statement of both the witnesses of

extra judicial confession Fatah Singh (PW-6) and Amar Singh

(PW-9), it will reveal that the allegations are far from the truth

and such type of statement cannot be taken into consideration so

as to convict the accused because the evidence of motive has

been concocted by the complainant so as to grab the entire land

of deceased Karam Singh. It is also submitted that there was no

reason for the appellants to make confession before two

interested witnesses PW-6 and Amar Singh PW-9 Fateh Singh

because they are close relatives of the complainant.

Learned counsel for the appellant submitted that entire

prosecution case is based upon testimony of ten prosecution

witnesses. Out of ten witnesses Mohan Singh (PW-3) SHO, P.S.

Gharsana was Investigating Officer of the case. The witness

Mohan Singh (PW-3) accepted in his statement that during

investigation, statements of Dalip Singh, Mahendra Singh, Laxmi

Bai, Fateh Singh, Angat Dev and Shyam Singh (Ex.P-10 to Ex.P-

15) were recorded by him.

Admittedly, statements of Laxmi Bai (Ex.P-12) W/o deceased

Karam Singh were recorded on 16.05.1987 soon after the

occurrence and the said witness categorically stated in her

statement recorded under Section 161 Cr.P.C. that the day on

which occurrence took place she was in the house and sitting just

behind the deceased, therefore, she was eye witness of the case

but not produced by the prosecution in the trial to prove the case.

While inviting attention towards the statements of Mahendra

Singh (PW-8) it is submitted that the statement of Mahendra

Singh were recorded by the Investigating Officer during

investigation under Section 161 Cr.P.C. (Ex.P-15) on 17.05.1987,

in which no fact was disclosed that any confession was made

before him by the accused appellants whereas, in the Court

statements the witness Mahendra Singh (PW-8) stated before the

Court that on the date of occurrence Laxmi Bai wife of Karam

Singh, came to his house and upon asking "What happened

Mataji". It is replied by her that my grandsons killed my husband

but this fact has not been proved because the witness Laxmi Bai

wife of the deceased has not been produced as witness before the

Court to corroborate such allegation levelled by the PW-8

Mahendra Singh.

The crux of argument of the learned counsel for the

appellant is that, the entire prosecution case is based upon

testimony of PW-6 Amar Singh, PW-7 Shyam Singh, PW-8

Mahendra Singh, PW-9 Fateh Singh and PW-1 Dalip Singh and all

these witnesses are close relatives. There is no independent

witness to corroborate the allegation of prosecution except so

called extra judicial confession and recovery of Lathi. The so called

Lathi was recovered during investigation as per information given

by accused appellant Prem Singh in presence of two witnesses

Kashmir Singh and Dalip Singh (complainant), therefore, such

interested witnesses cannot be treated as independent witness,

the other witness Kashmir Singh nowhere disclosed on which date

Lathi was recovered by the police. In the cross examination it is

specifically stated by Kashmir Singh (PW-5) that the place where

Lathi was recovered there was no door or roof and the said Lathi

was recovered near the Kikar tree. Both the witnesses accepted

that they are close relative of Dalip Singh as well as deceased

Karam Singh, therefore, on the basis of such statement of these

two witnesses it cannot be said that prosecution has proved the

recovery of Lathi at the instance of accused appellant Prem Singh.

According to appellant, finding of learned trial Court to held

accused appellant guilty on the basis of recovery of Lathi and

extra judicial confession is not sustainable in law, therefore the

impugned judgment may kindly be quashed.

Per contra, learned Public Prosecutor vehemently argued

that it is a case in which two grandsons with motive inflicted injury

upon head of their grandfather Karam Singh and committed

murder of him only to get land for which the grandfather was not

agreeable to transfer in their favour.

Learned Public Prosecutor further argued that as per

evidence on record there was dispute in between appellants and

deceased in connection with the land which is purchased by the

deceased alongwith the complaint. The complaint has proved the

fact that land was purchased by him and deceased and Prem

Singh and his father Tara Singh were repeatedly insisting the

deceased Karam Singh to transfer the land in question in their

names but deceased refused to do so, therefore, it is a case in

which prosecution has proved its case beyond reasonable doubt

on the basis of reliable evidence of extra judicial confession and

recovery of Lathi because both the facts are proved by the

prosecution against the accused appellants, therefore, there is no

question to say that the trial Court has committed an error so as

to hold accused appellant guilty.

Learned Public Prosecutor further argued that upon Lathi

recovered, as per information given by the accused appellant,

blood was found and other articles collected from the place of

occurrence were sent to the FSL for examination in which it is

reported by the FSL that blood of ''O'' group was found upon Lathi

and other articles were recovered from the place of occurrence,

therefore, on the basis of evidence of extra judicial confession and

recovery of blood sustained Lathi, the prosecution has proved its

case beyond reasonable doubt, therefore, the instant appeal may

kindly be dismissed.

After hearing learned counsel for the parties, we have

minutely scanned entire evidence of the case. Upon consideration

of evidence it is obvious that prosecution case is based upon

statement of ten prosecution witnesses out of which PW-2

Niranjan Singh, PW-3 Mohan Singh (SHO P.S. Gharsana), PW-10

Angad Dev (Medical Officer) are the witnesses of investigation

whereas PW-1 Dalip Singh son-in-law of the deceased is author of

the FIR (Ex.P/1) and accused appellants are grandsons of the

deceased Karam Singh.

The witness PW-1 Dalip Singh accepted in his statement that

before 7-8 years I and my father-in-law purchased land in Chack

13 DOL jointly. The partition of land has already been taken place,

therefore, upon half of the land deceased Karam Singh was having

possession being title holder.

Tara Singh son of deceased Karam Singh is having three

sons Prem Singh, Chhinder Singh and Sukha Singh. The witness

PW-1 Dalip Singh alleged that Prem Singh was repeatedly asking

his grandfather deceased Karam Singh to transfer the land in his

name but Karam Singh flatly refused to transfer the said land,

therefore, Prem Singh left the house before six months and

thereafter, his father Tara Singh son of deceased came and asked

the witness Fateh Singh to insist Karam Singh to transfer the land

in their favour. As per allegation of the complainant Dalip Singh,

the deceased Karam Singh refused to transfer the land in the

name of Prem Singh, therefore, there is doubt that Prem Singh

and Chhinder Singh might have killed his grandfather. But

admittedly, Dalip Singh is not eye witness of the incident. He is

the person who lodged the FIR on the basis of doubt.

Upon perusal of the statement of Dalip Singh (PW-1) further

it is revealed that one Lathi was recovered in his presence. The

said witness specifically stated in his statement that"VERNACULAR MATTER OMITTED"

It is obvious that there is no whisper in the statement of

Dalip Singh whether the said weapon Sota was blood sustained

whereas the other witness Kashmir Singh (PW-5) stated before

the Court that "VERNACULAR MATTER OMITTED"

In the cross examination it is specifically stated by him that"VERNACULAR MATTER OMITTED"

Upon consideration of the statements of both these

witnesses of recovery of Lathi it can be said that prosecution has

failed to prove recovery of Lathi beyond doubt because there are

major contradictions in the statements of both the witnesses with

regard to shape of the Lathi. The witness Dalip Singh (PW-1)

nowhere said that Lathi was having blood whereas Kashmir Singh

stated that Lathi which is part of Keekar tree was sustained the

blood. In view of above evidence, it is obvious that prosecution

has failed to prove the recovery of Lathi which is said to be used

to crime. Therefore, the finding of the learned trial Court so as to

treat recovery of Lathi proved is not acceptable.

We have considered the entire evidence to ascertain whether

fact of extra judicial confession inspired any confidence or not'' For

the said purpose, first of all, we have perused the statements of

two witnesses PW-6 Amar Singh and PW-9 Fateh Singh. During

investigation, statement under Section 161 Cr.P.C. of both the

witnesses of extra judicial confession were recorded on

17.05.1987 vide Ex.P-13 and vide Ex.P-14. The witness Amar Singh (PW-6) accepted in his statement that deceased Karam

Singh was his neighbor and author of FIR Dalip Singh is his close

relative. Similarly, Fateh Singh (PW-9) accepted in his statement

that deceased Karam Singh was his maternal uncle.

Upon consideration of statement of both these witnesses

recorded in the trial. It emerges that both the witnesses

categorically stated before the Court that both the accused

appellants met them when they were standing on the bus stand.

The statement of PW-6 Amar Singh for extra judicial confession of

the appellants, which reads as under:-

"VERNACULAR MATTER OMITTED"

Similarly PW-9 Fateh Singh gave following statement to

prove the allegation of extra judicial confession, which reads as

under:-

"VERNACULAR MATTER OMITTED"

"VERNACULAR MATTER OMITTED"

Upon objective consideration of entire evidence by us, it is

revealed that an FIR was filed by PW-1 Dalip Singh in the morning

on 16.05.1987 at 8.15 am and the statement of PW-6 Amar Singh

and PW-9 Fateh Singh were recorded under Section 161 Cr.P.C.

on 17.05.1987 to create the evidence of extra judicial confession

because it is beyond imagination that after committing murder

accused will made confession to the person standing on bus stand

which is public place. It is also obvious that there is no reason for

the appellants to made confession before the witnesses who are

close relatives of complainant Dalip Singh as well as the deceased.

Further, both these witnesses were not such person having

influence to protect the accused, therefore, the story narrated by

the accused appellant for extra judicial confession is seriously

doubtful and fabricated evidence so as to connect the accused

appellant. There is no dispute that appellants are grandsons of the

deceased Karam Singh and it is also not in dispute that appellants

were having right over the land being grandsons of the deceased.

If the appellants were having right over the land then there was

no question to kill their own grandfather so as to grab the land. It

emerges from the facts that prosecution case is based upon

presumption of complainant Dalip Singh who was having interest

over the land because land in question was purchased jointly by

him and deceased Karam Singh due to relationship of father-in-

law and son-in-law. We have also examine the conduct of the

witnesses of confession PW-6 Amar Singh and PW-9 Fateh Singh

from their statement made during investigation and trial. In our

opinion, if any person made confession before close relative of the

deceased then obviously first of all the person before whom

confession is made will inform the family members of the

deceased or immediately went to the house of his relative. But

upon perusal of the statement of both the witnesses it is obvious

that even after having knowledge of alleged murder by the

appellants, they left the village and come back on next day and

thereafter gave statement to the police. Such type of story

deserves to be disbelieved because these witnesses were required

to inform the police of incident they went Anupgarh without

informing the person. Therefore, the evidence of extra judicial

confession which is relied upon by the trial Court does not inspired

any confidence to uphold the conviction. It is also one of the

important aspect of the matter that eye witness Laxmi Bai who

was present in the house when occurrence took place, not

produced before the Court. Therefore, the whole prosecution story

become doubtful, but the learned trial Court ignored the said

important fact and erroneously convicted the accused appellants

for the alleged charge of murder on the basis of extra judicial

confession and recovery of Lathi which is not proved beyond

reasonable doubt. It is settled principle of law that prosecution is

required to prove its case beyond reasonable doubt and in this

case, the prosecution has failed to prove its case beyond

reasonable doubt therefore appellants are entitled for benefit of

doubt.

The Hon''ble Apex Court in the cases of Raj Kumar Singh @

Raju @ Batya Vs. State of Rajasthan reported in (2013) 5

SCC 722, and Jose @ Pappachan Vs. The Sub-Inspector of

Police, Koyilandy & Ors. reported in (2016) 10 SCC 519, held

that if two views are possible from the evidence of prosecution

then the view goes to favour the accused should be followed,

therefore, it is obvious from the prosecution evidence that two

views are possible, therefore, finding of the trial court so as to

hold accused appellant guilt for offence u/s 302/34 and 324/34

IPC is not sustainable in law.

In the case of Raj Kumar Singh @ Raju @ Batya (supra),

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. ......

2 2. 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".

x xx

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."

x xx

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 the case of Jose @ Pappachan (supra), the Hon''ble

Apex Court held as infra:

"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"

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

circumstances put-forth by the prosecution did not rule out with

absolute terms the hypothesis of involvement of the appellants

with the alleged crime. Thus, it is unsafe to maintain the finding of

conviction recorded by the trial Court on the basis of

circumstantial evidence. The conclusion drawn by the trial Court

for conviction is not tenable on the basis of evidence available on

record, therefore, while following the aforesaid judgments of

Hon''ble Supreme Court, the accused appellants are entitled for

benefit of doubt.

Consequently, the instant appeal is hereby allowed. The

judgment dated 12.07.1990 passed in Sessions Case No.72/1987

by the learned Addl. Sessions Judge, Raisinghnagar convicting and

sentencing the accused appellants for the offence under Sections

302 and 302 / 34 IPC is hereby quashed and set aside. The accused

appellants are on bail, therefore, their bail bonds are discharged.

They are not required to surrender again.

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/- and a surety bond in

the like amount each, 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.