State vs Kalu Singh

Gopal Krishan Vyas, J.—The instant criminal leave to appeal has been filed by the State of Rajasthan under Section 378(iii) and (i) of Cr.P.C. against the judgment dated 18.07.2014 passed by Addl. Sessions Judge Sojat, District Pali in Sessions Case No. 11/2012 whereby the trial Court acquitted the accused respondent from the charges levelled against him under Section 302 I.P.C.

The brief facts of the case are that on 3.3.2012 at about 12.05 p.m. complainant Tej Singh PW-21 filed complaint before Vijay Singh, ASI in which it is alleged that before 10-12 days, his cousin Tulsa Singh (deceased) sold his parental land to Mukut Singh and on yesterday at about 8 p.m., PW-10 Ranveer Singh (owner of JCB), PW-11 Rugha Singh and deceased Tulsa Singh came there on motor cycle and asked that boundary is required to be constructed upon the land. The complainant answered that tomorrow Patwari will be called and after taking measurement by the Patwari, the boundary will be constructed. It is further stated in the written complaint that today on 3.3.2012 at about 8.00 p.m. when he reached at his agricultural field, he saw that Ranveer Singh (owner of JCB) started the work, therefore, again he asked to stop the work and asked where is Tulsa Singh. Ranveer Singh PW-10 left the agricultural field along with his JCB and at about 11 a.m., a telephonic information was received that dead body of Tulsa Singh is lying at Binjaguda, Rayara Kallan. Upon receiving above information, the complainant along with his family members, villagers and Ex Sarpanch Devi Singh, Kalyan Singh, Laxman Singh and his son Raju Singh reached on spot where the body of deceased Tulsa Singh was lying and found that so many injuries were sustained upon the body of his cousin brother Tulsa Singh, therefore, he died.

Upon aforesaid report given by PW-21 Tej Singh, the police registered an FIR Ex. 25 under Section 302 I.P.C. against unknown person and commenced the investigation. The FIR was registered by the Police Station Bagdi Nagar at about 1.15 p.m. on 3.3.2012 and thereafter Police went on spot and the body of deceased Tulsa Singh was taken in possession for the purpose of post-mortem in the Hospital. After post-mortem, the body of deceased was handed over to the family members, thereafter, the investigating officer recorded statement of witnesses under Sections 161 Cr.P.C. and on the basis of the evidence of last seen and recovery of stone and the motor cycle upon which the respondent Kalu Singh was last seen were recovered and clothes of deceased Tulsa Singh were also taken in possession vide Ex. 29 and sent for chemical examination to the Forensic Science Laboratory, Jodhpur.

After completion of investigation, the Investigating Officer of Police Station Bagdi Nagar filed charge-sheet against the respondent in the Court of Judicial Magistrate First Class, Sojat from where the case was committed for trial in the Court of Addl. Sessions Judge, Sojat City, District Pali.

The learned trial Court after framing charge under Section 302 I.P.C. proceeded to conduct trial and in trial statement of 22 prosecution witnesses including the witness of last seen PW-20 Kalyan Singh were recorded so also statement of witness of extra judicial confession of respondent before PW-23 Raju Singh were also recorded by the trial Court.

The trial Court after recording evidence of both the sides acquitted the respondent Kalu Singh while disbelieving the testimony of PW-2 Devi Singh, PW-20 Raju Singh and PW-23, from the charges levelled against him under Section 302 I.P.C. vide judgment dated 18.7.2014.

The State Government preferred the instant criminal leave to appeal to challenge the judgment dated 18.7.2014 passed by the Additional Sessions Judge, Sojat City, District Pali.

Mr. Vishnu Kachwaha, learned Public Prosecutor vehemently argued that the prosecution has proved and established the case beyond reasonable doubt against the respondent by leading the oral and documentary evidence, therefore, the trial Court ought to have considered the evidence produced by the prosecution in right perspective so as to convict the respondent but merely on the basis of the surmises and conjectures acquitted the accused respondent from the charges levelled against him under Section 302 I.P.C., therefore, the judgment impugned deserves to be quashed.

Learned Public Prosecutor further argued that on the basis of the circumstantial evidence of last seen and motive, it is proved by the prosecution that there was enmity in between the deceased Tulsa Singh and respondent Kalu Singh because goat of accused was stolen by deceased before two years and for that incident a Panchayat was also held in village in which the accused respondent Kalu Singh gave threat to deceased Tulsa Singh that he will kill him. It is also pointed out that PW-2 Pani Devi specifically stated in her statement that Kalu Singh told the deceased Tulsa Singh that you have stolen his goat and made quarrel in the previous night, therefore, obviously, the evidence of motive was on record but learned trial Court disbelieved the evidence of prosecution without application of mind, therefore, the judgment impugned deserves to be quashed.

Lastly, learned Public Prosecutor argued that there is evidence of extra judicial confession before independent witnesses PW-23 Raju Singh, therefore, the trial Court has failed to perform its duty to accept the evidence produced by the prosecution so as to convict the respondent Kalu Singh, therefore, the judgment impugned deserves to be quashed and on the basis of the recovery of clothes Ex. P-6 duly proved by the prosecution witnesses PW-7 Prem Singh and PW-8 Chander Singh, the respondent may be convicted for the offence of murder committed by him under Section 302 I.P.C.

Per contra, learned counsel appearing on behalf of the respondent submits that the entire evidence of prosecution with regard to extra judicial confession and last seen was considered by the trial Court and trial Court gave finding in para 23 to 28 of the judgment that the evidence of prosecution with regard to extra judicial confession and last seen is not established against accused respondent for committing offence under Section 302 I.P.C. and held that the statement of PW-3 Pani Devi, PW-4 Pushpa, PW-9 Karan Singh are not acceptable because all above three witnesses of last seen turned hostile before the Court. Similarly the trial Court considered the evidence of motive and gave conclusion that motive which is attributed upon the respondent is also not established because the said incident of goat stolen by the deceased took place before two year, therefore, on this count also the trial Court gave finding that evidence of motive is not established by the prosecution beyond reasonable doubt.

With regard to extra judicial confession, which is said to be made before the police, it is submitted that the trial Court has rightly disbelieved the ground of extra judicial confession after considering the statement of PW-2 Devi Singh, PW-20 Kalyan Singh and PW-23 Raju Singh, therefore, no interference is called for in this leave to appeal because as per the finding given by the trial Court, the prosecution has failed to prove its case beyond reasonable doubt, therefore, this leave to appeal may be dismissed.

After hearing learned for the parties, we have examined the judgment so also the evidence on record. Admittedly, there is no direct evidence on record but on the ground of last seen, extra judicial confession and recovery of articles, the respondent was prosecuted but the witnesses of the last seen PW-3 Pani Devi, PW-4 Pushpa and PW-9 Karan Singh turned hostile and did not support the prosecution story, therefore, trial Court has rightly held that evidence of last seen is not proved. With regard to evidence of extra judicial confession before PW-2 Devi Singh, the learned trial Court observed that the said witness stated in his statement that respondent made confession before the DSP when he was called in front of him but this fact was not disclosed by the witness PW-2 Devi Singh in his police statement recorded under Section 161 Cr.P.C. Ex-D-1 and witness PW-20 Kalyan Singh also stated before the Court that respondent Kalu Singh made confession before the police, in view of above as per Section 25 of Evidence Act such statement of extra judicial confession made before the Police is not admissible in law.

In our opinion, the trial Court has rightly rejected the plea of extra judicial confession of the prosecution on the ground that alleged extra judicial confession was made before the police authorities.

With regard to the blood report, the trial court observed in para 29 of the judgment that witness PW-7 categorically stated in the cross examination of his statement that pant, shirt and sandle were not taken in possession in front of him, meaning thereby the prosecution has failed to establish the case against the respondent on the basis of the recovery of articles upon which human blood group-B was found.

We have also perused the statement of PW-7 Prem Singh and PW-8 Chandra Singh. In both the statements, there are major contradiction, therefore, the trial Court rightly disbelieved the testimony of recovery articles so as to acquit the respondent.

We have considered the arguments of learned Public Prosecutor with regard to evidence of last seen for this purpose, the statement of PW-23 Raju Singh is on record but the said witness stated in his statement that at the time of last seen, the respondent was wearing black coloured pant but it is very strange that vide Ex. P-6, the colour of pant of is cream, meaning thereby, the trial Court has rightly disbelieved the testimony of PW-23 Raju Singh to discredit his statement for the purpose of accepting the ground of last seen.

In view of above, we are of the opinion that no error has been committed by the trial Court in acquitting the respondent from the charges levelled against him under Section 302 I.P.C. Therefore, there is no ground to grant leave to appeal against the impugned judgment dated 18.7.2014. Hence, this criminal leave to appeal filed by the State is hereby dismissed.