Sharvan Kumar and Others vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 17.7.2009 passed by the Addl. Sessions Judge (Fast Track), Sikar, the appellants, namely Sharvan Kumar, Karan Singh and Tara Chand Gurjar, have filed three different appeals before this court. While Sharvan Kumar has filed D.B. Criminal Appeal No. 902/2009, Karan Singh has filed D.B. Criminal Appeal No. 805/2009, and Tara Chand has filed D.B. Criminal Appeal No. 809/2009. Since these appeals arise out of the same impugned judgment, they are being decided by this common judgment.

By the said judgment the learned Judge has convicted the appellants for offences under Section 302/34 and Section 201 IPC. But he has acquitted Sharvan Kumar of offence under Section 118/302 IPC, and appellant Tara Chand and Karan Singh for offence under Section 119/302 IPC. For offence under Section 302/34 IPC he has sentenced all the three appellants to life imprisonment, imposed a fine of Rs. 5000/- each and directed them to further undergo six months of simple imprisonment in default thereof. For offence under Section 201 IPC, the learned Judge has sentenced them to seven years of rigorous imprisonment, imposed them with a fine of Rs. 2000/- each and has directed them to further undergo six months of rigorous imprisonment in default thereof.

Briefly the facts of the case are that on 7.7.2005 Ganpat Singh (P.W.2) lodged a written report (Ex. P.2) at Police Station Raghunathgarh, District Sikar, which when translated into English, reads as under:-

"To,

The S.H.O., Police Station Raghunathgarh.

Sir,

It is to submit that my nephew Shyom Nath son of Late Shri Lal Chand, caste Jat, resident of Jerthi, Tehsil and District Sikar, is a resident of the said place. On 6.7.2005 around 9:00 PM, Sharvan Kumar Bhaskar, resident of village Kharsadu (Dhorasi), presently resident of village Jerthi had come with his jeep. But he did not return at home at night. On 7.7.2005 in the morning, Surendra was going for his work. He was going by road. When he reached the place called Kariya Johara Tan (Dadiya), he saw a body of a dead man lying on the side of the road. When he went near the body, he realised that it is the body of Shyom Nath, who is lying dead. He came back and told me that Shyom Nath is lying dead at Kariya Johara on the road. I came and saw that Shyom Nath is lying dead. Since Shyom Nath is my nephew, I am making this report and pray that legal proceedings should be initiated and justice should be done. I suspect that somebody has killed him and has left his body there.

Sd/- Ganpat Singh son of Laduram Jat Main Post Jerthi, Tehsil and District Sikar"

On the basis of this written report (Ex. P.2), the police chalked out a formal FIR (Ex. P.47), namely FIR No. 78/2005 for offence under Section 302 IPC. During the course of investigation, the police arrested five persons, namely Sharvan Kumar, Tara Chand, Karan Singh, Mahendra Kumar and Basant Kumar. After the completion of the investigation, the police submitted a charge-sheet against all the five persons for offence under Sections 302, 201, 118/34 IPC. Having committed the case to the Sessions Judge, Sikar, trial was eventually transferred to the Court of Addl. Sessions Judge (Fast Track), Sikar. By order dated 28.10.2005, the learned Judge discharged Basant Kumar and Mahendra Kumar for offences under Sections 302, 201 and 118 IPC. However, the learned Judge charged Sharvan Kumar for offence under Section 302, in the alternative 302/34, 201 and 302/118 IPC, and Karan Singh and Tara Chand for offences under Sections 302, in the alternative 302/34, 201 and 302/119 IPC. All the three accused persons denied the allegations and the charges framed against them, and prayed for trial.

In order to support its case the prosecution examined twenty-four witnesses, and submitted fifty-nine documents. In turn, the defence examined a single witness, and submitted fourteen documents. After completing the trial, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, these three appeals before this court.

Mr. Ashwani Chobisa is representing Sharvan Kumar, Mr. Suresh Sahni with Mr. R.M. Sharma are representing Karan Singh and Mr. Biri Singh, the learned Senior Counsel, assisted by Mr. Rajesh Choudhary is representing Tara Chand. They have raised the same set of arguments. Firstly, the case is entirely based on circumstantial evidence. But the prosecution has failed to prove its case through a series of circumstances which would unerringly point towards the guilt of the appellants. Secondly, the only evidence that the prosecution has produced against the appellants are:-

"(a) the evidence of the last seen,

(b) the recovery of a jeep,

(c) the recovery of food by recovery memo Ex. P.27 at the instance of Karan Singh

(d) the recovery of three pieces of wood by recovery memo Ex. P.31 at the instance of Tara Chand,

(e) the recovery of an iron rod by recovery memo Ex. P.33 from Tara Chand,

(f) the seizure of jeep in which blood was also found by recovery memo Ex. P.41 at the instance of accused Sharvan Kumar,

(g) the recovery of the clothes of the accused Karan Singh by recovery memo Ex. P.43,

(h) the seizure memo of clothes of accused Tara Chand by recovery memo Ex. P.45,

(i) the recovery of clothes of accused Sharvan Kumar by recovery memo Ex. P.46, and

(j) the reports of the FSL (Ex. P.58&59)."

However, according to the learned counsel none of these pieces of evidence are sufficient for unerringly pointing towards the guilt of the appellants. For, despite recovery of the iron rod, the clothes of the deceased, the clothes of the accused, and recovery of the jeep having blood, according to the FSL report (Ex. P.59), none of these recovered items even show the existence of human blood. Therefore, the linking evidence connecting the recoveries to the alleged crime is conspicuously missing. Moreover, the evidence of last seen is an extremely week sort of evidence which does not unerringly point towards the guilt of the appellants. Therefore, the prosecution has failed to establish its case.

On the other hand Mr. N.S. Dhakad, the learned Public Prosecutor, has vehemently contended that the pieces of evidence, mentioned above, are sufficient to establish the guilt of the appellants. Hence, the learned Public Prosecutor has supported the impugned judgment.

As far as the evidence of last seen is concerned, the prosecution has examined Mahaveer (P.W.1), Ramniwas (P.W.8), and Sharvan Kumar (P.W.9). However, these witnesses have turned hostile and have not supported the case of the prosecution. However, Baldev Singh (P.W.13) does claim in his examination-in-chief that on 6.7.2005 around 11:30 - 12 o''clock at night, Shyom Nath, the deceased, had come with Tara Chand and Sharvan Kumar. He knows Tara Chand as he is a local policeman. He also knows Sharvan Kumar. While Sharvan Kumar was driving the jeep, Tara Chand and Shyom Nath were sitting in the front seat. He further tells the court that after having bought a cigarette, all the three left together. After half an hour, Shyom Nath''s brother Laxman came and inquired about the whereabouts of Shyom Nath.

But in his cross-examination, he admits that Shyom Nath was the younger brother-in-law of his own sister, but despite the close relationship, he never revealed the fact that Shyom Nath was seen on the last occasion with Tara Chand and Sharvan Kumar, either to Shyom Nath''s family, or even to the police. When he is confronted with his police statement recorded under Section 161 CrPC (Ex. D.4), he claimed that he had told the police that Shyom Nath bought a cigarette, but why this fact is not written in Ex. D.4, he does not know. He further claims that he had informed the police that subsequently Laxman had come, but why this fact is not written in Ex. D.4, he does not know. Further in his cross-examination, he admits the fact that he is involved in certain criminal cases.

Tara Chand (P.W.15) also claims in his examination-in-chief that on 6.7.2005 around 10:30 PM, Sharvan Kumar and Tara Chand had come to the shop owned by Vijendra. They had asked for some water, but Vijendra refused to give it to him. Therefore, Sharvan took some water in a plastic pouch and they all left together.

Phool Chand (P.W.16) also claims that Sharvan Kumar had come to his shop for buying some liquor. But in his cross-examination he explicitly denies that he did see Shyom Nath.

Laxman Singh (P.W.19) also states that Shyom Nath was his own brother. He used to work in a foreign country. On 6.7.2005 around 9 o''clock his younger brother had taken Rs. 500/- from his wife, and told her that he is going out for dinner with Sharvan Kumar and Mahendra. When the money was asked for, he was present in the house. Subsequently, Shyom Nath left with Sharvan Kumar in his jeep. When Shyom Nath did not come in the night, he went out looking for him. He further claims that he first went to Milan Hotel at Beri Bus-stand where Baldev told him that Sharvan Bhaskar, Tara Chand and Shyom Nath went in a jeep. Then I again reached at Dadiya Choki. There Sharvan, Shyom Nath, Tara Chand and Karan Singh were present. There he discovered both of them consuming liquor. When he asked Shyom Nath to accompany him back home, Shyom Nath told him that first he will take his dinner and then come back home. Therefore, he came back home leaving Shyom Nath with Sharvan, Tara Chand and Karan Singh.

But in his cross-examination, he admits that his statement was recorded by the police eighteen days after the incident, although he had gone to the police station at Dadiya three days after the incident. He also admits that in those eighteen days many a times police had come to his house, but he had not told anything to the police about the fact that he has seen Shyom Nath with Sharvan, Tara Chand and Karan Singh. When he was confronted with the omissions, he claimed that he had told the details to the police, but he cannot say as to why the details have not been recorded in his police statement (Ex. D.8).

A bare perusal of the testimonies quoted above clearly reveal that Baldev is not a reliable witness. For, according to his own admission in the cross-examination despite his close relationship to Shyom Nath, the deceased, he maintained a studied silence over the entire evidence of last seen. He did not reveal the said fact to the police till much later. Similarly, even Laxman (P.W.19), who is the elder brother of the deceased, has admitted in his cross-examination that he did not reveal the fact that on the last occasion he had seen Shyom Nath with the appellants, to the police for eighteen long days. Therefore, the silence of both these witnesses clearly points to the fact that they are concocted witness, and are used as a padding by the prosecution. Even the other witnesses who have claimed to have seen Shyom Nath with the appellants, even their evidence does not connect the appellants to the alleged crime. For, the time and place where they were seen together on the last occasion with the deceased is different from the place where the dead body was eventually discovered in the morning.

In the case of Sahadevan and another Vs. State of Tamil Nadu, AIR 2012 SC 2435 : (2012) CriLJ 3014 : (2012) 3 JCC 1756 : (2012) 2 RCR(Criminal) 899 : (2012) 5 SCALE 415 : (2012) 6 SCC 403 : (2012) AIRSCW 3206 , the Hon''ble Supreme Court has elaborately dealt with the importance of last seen theory in criminal jurisprudence. It has held as under:-

"28. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt.

In Arjun Marik and Others Vs. State of Bihar, (1994) 1 Crimes 777 : (1994) 2 JT 627 : (1994) 1 SCALE 821 : (1994) 2 SCC 372 Supp : (1994) 2 SCR 265 : (1994) 1 UJ 610 , this Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19.7.1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that: (SCC p.385, Para 31)

"31.... it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction, on that basis alone, can be founded".

Even in State of Karnataka Vs. M.V. Mahesh, (2003) 2 SCALE 553 : (2003) 3 SCC 353 : (2003) 2 SCR 553 , this Court held that (SCC p.354, Para 3)

"3.... merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court".

In State of U.P. Vs. Satish, AIR 2005 SC 1000 : (2005) CriLJ 1428 : (2005) 2 CTC 71 : (2005) 2 JT 153 : (2005) 3 SCC 114 : (2005) 2 SCR 1132 : (2005) 1 UJ 367 : (2005) AIRSCW 905 : (2005) 2 Supreme 13 , this Court had stated that (SCC p.123, para 22) the principle of last seen comes into play

"where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."

Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.

Therefore, even if the evidence of last seen were to be believed, it is too fragile an evidence for basing the conviction of the appellants for the offence under Sections 302/34 IPC.

The prosecution has produced a large number of witnesses and documents to prove that the three wooden pieces, and the iron rod were recovered from Tara Chand and Sharvan Bhaskar, and the jeep having blood was equally recovered from Sharvan. Thus, through these recoveries the prosecution has tried to link the appellants to the alleged offence. However, the keystone of the prosecution case which could have shown the co-relation between the alleged crime and the appellants, the discovery of the blood of the deceased on the weapons of assault, and in the jeep, is conspicuously missing in the present case. According to the FSL report (Ex. P.59) although it had received shirt, pant, iron angle and wooden pieces, but all of them are negative even for human blood. Thus, the most crucial piece of evidence, the presence of blood of the deceased on the clothes of the accused persons and on the weapons of offence, is terribly missing in the present case. Therefore, the recoveries of these articles, even if accepted to be true, do not link the appellants to the alleged crime.

It is often said that the prosecution must cover the distance between "may be true" and "must be true". Merely by flashing few pieces of evidence which are incomplete in their nature and scope, the prosecution does not succeed in establishing its case beyond a reasonable doubt. Even if the prosecution succeeds in creating a strong suspicion against the accused, even then the accused cannot be convicted. For, convictions cannot be based on conjunctures or surmises, or on strong suspicion. The prosecution is required to prove its case through cogent and convincing evidence; each linking evidence has to form a chain which leads to the only conclusion that the crime could have been committed only by the accused person, or persons and by none other. [refer to Vijay Thakur Vs. State of Himachal Pradesh, (2014) AIRSCW 5625

Since the prosecution has failed to establish its case, these three appeals are, hereby, allowed. The impugned judgment dated 17.7.2009 is, hereby, set aside. The appellants are discharged of the charges framed against them.

Keeping, however, in view the provisions of Section 437A Cr.P.C., the appellants, namely Sharvan Kumar, Karan Singh and Tara Chand Gurjar are 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 bond so furnished shall be effective for a period of six months. The bond shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment, or on grant of the leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.