AI Structured Summary
Not yet generated for this judgment
Judgment
In this cr. appeal filed by the State of Rajasthan under
Section 378 Cr.P.C., the judgment dated 17.5.1991 passed by the
learned Sessions Judge, Udaipur in Sessions Case No.99/1988 is
under challenged whereby the respondents were acquitted from
the charges levelled against them under Section 302 IPC.
As per facts of the case on 9.5.1988, the ASI Sunder Lal
(PW--1) was on duty in relation to visit of Central Sports Minister
at Udaipur for attending programme at Government Girls School,
Udaipur in between the way from Circuit House to Government
Girls School, Udaipur alongwith other police officials of Police
Station Ambamata. On that day respondents were travelling in
Truck No.RRY 7106 on the way where complainant ASI Sunder Lal
(PW--1) was on duty. As per complainant, the vehicle intentionally
hit one Shiv Shanker Kumawat, who was going on cycle on the
road. The above incident was reported by the ASI Sunder Lal to
the Police Station, Ambamata vide Ex.P/1 dated 9.5.1988 at 7.00
pm, which reads as under:
"VERNACULAR MATTER OMITTED"
Upon aforesaid report of ASI Sunder Lal (PW--1), the FIR
no.72/1988 was registered at Police Station Ambamata, Udaipur
on 9.5.1988 at 7.30 pm under Section 302 / 34 IPC against the
respondents. After registration of the FIR, upon aforesaid
allegations, the investigation of the case was handed over to
Ganpat Singh, CI of Police Station, Ambamata. The Investigating
Officer made inspection of the site in the morning at 7.30 am on
10.5.1988 and prepared the details of site and site plan vide
Ex.P/2 and Ex.P/3 respectively. The blood stained soil and simple
sole were also taken in possession vide Ex.P/4. One cycle, bag,
pen, diary, identity card, license, sleepers, shoes and specks were
also taken in possession from the place of occurrence vide Ex.P/5.
The post mortem of the body of deceased Shiv Shanker Kumawat
was conducted at 9.25 am on 10.5.1988 vide post mortem report
Ex.P/12 in the hospital. The cloths of deceased were also taken in
possession vide Ex.P/6. The truck No.RRY 7106 was seized vide
Ex.P/7. The Panchnama of dead body was prepared vide Ex.P/8
and dead body of the deceased was handed over vide Ex.P/9 and
notice was given to the owner of the truck RRY 7106 Sh. Trilok
Chand. The registration certificate, permit and other documents of
insurance including driving license of respondent Dilkhush were
taken in possession vide Ex.P/10 and after completing
investigation, charge-sheet was filed under Section 302 IPC
against the respondents in the court of Addl. Chief Judicial
Magistrate No.3, Udaipur on 24.6.1988. The learned Magistrate
committed the case for trial to the Sessions Court, Udaipur.
In the trial, after framing charge under Section 302 IPC
against respondents statements of 14 prosecution witnesses were
recorded including statement of informant PW--1 ASI Sunder Lal
of Police Station Ambamata. Number of documents were
exhibited during trial. Thereafter, statements of respondents were
recorded under Section 313 Cr.P.C. in which respondents denied
the allegations levelled by the prosecution witnesses and in
defence statement of DW-1 Bhajan Lal were recorded to prove the
fact that in between way from Swaroop Sagar to Railway Colony,
the guarder are fixed, therefore, it is not possible for truck to
pass through the roads. Photos (Ex.D/2, D/3 and D/5) were also
exhibited from defence side. The learned trial court after
recording evidence finally heard the arguments of the parties
and while considering and assessing entire evidence acquitted the
respondents from the charges levelled against them for offence
under Section 302 IPC vide impugned judgment dated 17.5.1991.
Learned Public Prosecutor vehemently argued that judgment
impugned is contrary to evidence on record because prosecution
has proved its case beyond reasonable doubt while leading
trustworthy evidence of eye witness ASI Sunder Lal (PW--1) who
was present at the place of occurrence when incident took place
but learned trial court disbelieved the testimony of eye witness
without any reason, therefore, the finding of acquittal recorded by
the learned trial court is erroneous.
Learned Public Prosecutor submit that finding of the learned
trial court is not sustainable in law for the reason that the learned
trial court has unnecessarily stretched upon minor contradictions
appearing in the statements of witnesses so as to disbelieve the
prosecution case. Further, argued that although out of four eye
witnesses, three turned hostile and did not support the
prosecution case but there is no reason to disbelieve the
statement of eye witness ASI Sunder Lal (PW--1), who was
present at the time of incident and reported the incident to the
police.
It is further submitted that statement of ASI Sunder Lal
(PW--1) is corroborated by other witneses namely Amba Lal and
Viram Singh so also by the medical evidence, the learned trial
court has failed to consider the entire evidence in right
perspective, therefore, the judgment impugned deserves to be
quashed and set aside.
Learned Public Prosecutor while inviting attention towards
the fact that as per evidence there was enmity in between the
respondents and deceased because deceased Shanker Lal was
brother-in-law (gainer) of the respondent Kailash and Manak and
was Phupha. In the year 1985 Shiv Shanker since deceased was
involved in the murder case of his own wife and sons but
acquitted by the learned trial court, therefore, to take revenge,
respondents find an opportunity to kill Shiv Shanker when he was
going on road upon bicycle. Thus, with the intention and motive
they caused injury to the deceased by the truck and to try to give
colour of accident, but unfortunately, complainant ASI Sunder Lal
(PW--1) was present at the place of occurrence and saw the
incident, therefore, learned trial court ought to have considered
the aforesaid facts so as to hold respondents guilty for alleged
offence of murder punishable under Section 302 IPC. According to
Public Prosecutor, learned trial court erred in law not to accept the
evidence of PW--10 Amba Lal who has categorically corroborated
the allegation made by the eye witness Sunder Lal (PW--1),
therefore, the finding of acquittal recorded by the trial court does
not inspire confidence.
Learned Public Prosecutor lastly argued that the trial court
has committed an error while acquitting the respondents from the
charges levelled against them only on the basis of minor
contradictions/omissions in the statements of prosecution
witnesses, but in fact, Shiv Shanker was killed with intention by
hitting him, therefore, the judgment impugned deserves to be
quashed and respondents are liable to be punished for the offence
committed by them under Section 302 / 34 IPC.
Per contra, learned counsel appearing for the respondents
argued that there is no evidence of independent witness in this
case, more so, out of four eye witnesses, three turned hostile and
did not support the allegation made by the complainant Sunder
Lal (PW--1) in his complaint, therefore, without any corroboration
of allegation, there was no option for the learned trial court
except to acquit the respondents from the charges levelled against
them.
While inviting attention towards the finding of the learned
trial court based upon medical evidence, it is submitted that PW--
5 Dr. Kothari who has conducted the post mortem of the deceased
and gave post mortem report (Ex.P/12) categorically stated in his
statement that the injuries found upon the body of the deceased
cannot be treated to be caused with the intention as reported by
the complainant ASI Sunder Lal (PW--1). As per learned counsel
appearing for the respondents, it is a case in which the learned
trial court has properly considered the entire evidence of
prosecution and opined that out of four eye witnesses, three
turned hostile and did not support the statement of ASI Sunder
Lal (PW--1), who lodged the complaint against the respondents.
The learned trial court has not relied upon the testimony of Dr.
Kothari who has categorically stated before the court that the
injuries found upon the body of the deceased can be caused due
to an accident not with intention, therefore, there is no question
to interfere in this cr. appeal filed by the State.
After hearing learned counsel for the parties, we have
perused the statement of all the witnesses. Admittedly, the FIR
was registered upon the complaint (Ex.P/1) submitted by ASI
Sunder Lal (PW--1). In the investigation, charge-sheet was filed
on the basis of statement of four eye witnesses, ASI Sunder Lal
(PW--1), Kishan (PW--4), Hukum Raj (PW--6) and Mohan Lal
(PW--7) , but out of four eye witnesses, three witness Kishan
(PW--4), Hukum Raj (PW--6) and Mohan Lal (PW--7) turned
hostile and did not support the prosecution case and the story
narrated by ASI Sunder Lal (PW--1). The entire prosecution
case is based upon testimony of ASI Sunder Lal (PW--1), but no
other evidence has supported or corroborated the allegation
levelled by ASI Sunder Lal (PW--1) against the respondents.
To reach to the conclusion whether it is a case of offence
under Section 302 IPC, we have perused the statements of ASI
Sunder Lal (PW--1), so also, statement of PW--5 Dr. N.S. Kothari.
Although ASI Sunder Lal (PW--1) levelled so many allegations for
causing injury with intention, but his allegations are not supported
by other eye witnesses Kishan (PW--4), Hukum Raj (PW--6) and
Mohan Lal (PW--7), PW--5 Dr. N.S. Kothari (PW--5) who
performed the post mortem of the deceased Shiv Shanker and
gave report (Ex.P/12). In the cross-examination, Dr. Kothari gave
following statements with regard to the nature of injuries and
cause of death, which reads as under:
"VERNACULAR MATTER OMITTED"
We have considered the finding of the learned trial court in
the light of the statement of the ASI Sunder Lal (PW--1) and
statement of PW--5 Dr. N.S. Kothari. Admittedly, except PW--1
Sunder Lal all the other eye witnesses turned hostile and there is
no other witness to support the prosecution case or to prove the
allegation of murder. The medical evidence is not supporting or
corroborating the allegation levelled by ASI Sunder Lal (PW--1),
therefore, it is obvious from our assessment based upon
appreciation of evidence that no error has been committed by the
learned trial court so as to acquit the respondents from the
charges levelled against them because eye witnesses turned
hostile and medical evidence is not supporting the allegation of
ASI Sunder Lal (PW--1), alleged to be eye witness of the incident.
Therefore, we are of the opinion that no error has been
committed by the learned trial court to acquit the respondents
from the charge levelled against them.
As per verdict judgments of 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, if two views are possible then benefit goes to the
accused appellant, therefore, it is obvious in this case that finding
of trial court so as to hold respondents guilt for offence u/s 302
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 view of entire evidence and in the light of aforesaid
judgment, we are of the opinion that finding recorded by the
learned trial court so as to convict the respondents from the
charges levelled against them does not suffer from any illegality
because prosecution has failed to establish the charge/s levelled
against the respondents for commission of offence under Section
302 of IPC.
Consequently, the instant appeal filed by the State of
Rajasthan is hereby dismissed.