State of Rajasthan vs Prabhu Singh Rawat

R.S. Chauhan, J.—Aggrieved by the judgment dated 1.3.2013, passed by Sessions Judge, Kota, whereby the learned Judge has acquitted the accused-respondent, Prabhu Singh Rawat @ Gokul of offence under Section 302 IPC, the State of Rajasthan has filed this criminal leave to appeal.

By order dated 5.5.2014 while granting the leave this court had issued notice to the respondent. According to the order dated 7.1.2015 the Sub Inspector, Police Station Gumanpura, Kota, Mr. Hansraj had appeared before this court and informed this court that Prabhu Singh Rawat @ Gokul, the accused-respondent, no longer resides at the address given in the cause title. However, he sought three weeks time to locate the accused-respondent. The time so prayed for was granted. According to the order-sheet dated 4.2.2015, Mr. Rajesh Malik, the S.H.O. Police Station Gumanpura, Kota, appeared before this court. He informed this court that after his acquittal in the year 2013 the accused-respondent, Prabhu Singh Rawat @ Gokul has visited his sister only once. And his family members are unaware about his whereabouts. Therefore, it will be extremely difficult, if not impossible, to locate the accused-respondent. However, no fruitful purpose would be served even if the accused-respondent were discovered.

Briefly the facts of the case are that on 9.5.2011 the S.H.O. Police Station Gumanpura, Kota, Bhagat Singh (P.W.14) received a telephonic call informing him that in Bal Udyan Park, Opposite the New Modern School, situated at Ballab Bari, there is a foul smell emanating from a tapri (ramshackle). Under the tapri one can see the feet of a man, or a woman sticking out from under a blanket. On receiving this information, Bhagat Singh (P.W.14) went to the park. There he opened the doors of the tapri and having removed the blanket discovered a dead body of a woman. The woman had been strangulated, and had been injured on the head as there was a ligature mark on the neck, and injuries on her head. There was also blood spilled at the scene of the crime. The body had started putrefying as it was two to three days old, and there was foul smell. When the police inquired from the people near about the place, one Rajendra Sharma and Pappu @ Bawari Lal Bairwa informed the police that the dead body is that of the wife of Prabhu Meena (Rawat), the accused-respondent before this court. These persons also informed the police that Prabhu Meena had constructed a make shift ramshackle (tapri) in the park itself, and was living with his wife and two children. According to them, Prabhu Singh Meena used to assault his wife after consuming liquor. Moreover, he and his children were missing for the last two days. The police also recovered a photograph of Prabhu Meena and his wife lying in the tapri. Therefore, the police concluded that having strangulated his wife, Prabhu Meena must have absconded with his children.

On the basis of this investigation, the police chalked out a formal FIR, namely FIR No. 285/2011 and continued the investigation. Eventually, on 16.6.2011 the police arrested Prabhu Singh Rawat from village Halerh, District Bhilwara. Subsequently, the police submitted a charge-sheet against the accused before the Addl. Chief Judl. Magistrate No. 5, Kota, and committed the case to the Sessions Court. In order to support its case the prosecution examined fourteen witnesses, and submitted twenty-three documents. The defence neither examined any witness nor submitted any document.

Before we consider the arguments submitted by the learned Public Prosecutor, it would be fruitful to briefly mention the evidence produced by the prosecution.

Pappu @ Banwari Lal (P.W.1) is a formal witness who has proven the photographic memo (Ex. P.1), the panchayatnama memo (Ex. P.2), the site plan of the scene of the crime (Ex. P.3), and the recovery memo of the blood stained soil and of the normal soil (Ex. P.4). However, none of these documents connect the accused to the alleged crime. One Bhupendra Kumar (P.W.2) has also proven Ex. P.1 and Ex. P.4. Rajendra Kumar (P.W.3) has turned hostile and has not supported the case of the prosecution. According to him he knew Pabhu Singh, but he has never saw any dispute between the husband, and the wife. Interestingly both Banwari Lal (P.W.1) and Rajendra (P.W.3) do not mention the fact that they told the police that Prabhu Singh used to assault his wife under the influence of liquor.

Mahaveer (P.W.4) has also turned hostile and has not supported the case of the prosecution.

Dr. Vishwadeepak (P.W.5) has proven the Post-Mortem Report. According to him, he was a member of the medical board. Further, according to him the medical board had discovered the fact that:--

"1. There was a ligature mark measuring 24 x 1 1/2 cm in the from of abraded groove more mark in anterolateral aspect of neck just below the level to thyroid cartilage slightly oblique.

Abrasion 2x1/4 cm on the Right Frontal region head."

The internal dissection revealed that there was a diffused subscalp hematoma in right frontal region head. On neck dissection, the tissue beneath the ligature mark is dug.

According to the opinion of the Medical Board, "the cause of death was due to asphyxia as a result of constriction around the neck, sufficient to cause death in the ordinary course of nature".

Uday Lal (P.W.6), the brother of the deceased, Rami has claimed in his examination-in-chief that Rami was his sister who has been killed. "It is over one year since she has been killed. His father had married Rami initially to Shankar Meena, resident of Barakhera, with whom she had stayed for two years. After this she had gone in nata to Dhula Rawat, from whom she had a son who is about six to seven years old. One year prior to her death, Rami had left Dhula and eloped with Prabhu Rawat, the accused. Prabhu was working as a labourer. She came to know Prabhu and she eloped with him, taking her son with her". Furthermore, according to this witness, "Rami had called him one month prior to her death, and told him that she regrets her decision to come with Prabhu as he keeps on assaulting her practically every day. But she did not tell him her address at Kota. Subsequently, we read in the newspaper that a woman named Rami has been strangulated by her husband, Prabhu. Prabhu also had a daughter from his earlier wife. The accused took away both Rami''s son and his own daughter. After reading the news we came to Kota, saw the body and identified the body as that belonging to my sister". This witness has proven the identification memo of the corpse (Ex. P.7), the recovery of the towel through Ex. P.8, and the handing over the corpse through memo Ex. P.9. In his cross-examination he admits that "he never informed the police about the fact that Prabhu Rawat used to assault his sister". He admits that "Rami had asked him to take her away, but he never did". He also admits that "he knows that in March 2011 Prabhu had left for his village along with his children, and Rami had stayed back".

Keshuram (P.W.7), a cousin brother of the deceased, has merely proven some of the documents made during the course of investigation.

Ramdayal (P.W.8) has turned hostile, and has not supported the case of the prosecution.

Brajesh Kumar (P.W.9) was a Constable posted at Police Station Gumanpura, Kota, on 17.6.2011. According to him the police had recovered a piece of wood (danda), a photograph of Prabhu Singh''s wife, and his identity card. He has proven the recovery memo Ex. P.12. In his cross-examination he admits that "he does not know in what capacity Prabhu Meena was living in the house belonging to Dinesh Soni. The police did not recover any document to show that the accused was living in a capacity of a tenant".

Chhoturam (P.W.10), also a Constable, also proves the recovery of the danda, photograph of the wife of the accused, and the identity card.

Dinesh Soni (P.W.11) informs the court that "he had constructed a room like structure, but there was neither any gate, nor any lock in the said room like structure". He further claims that "he had given the said ramshackle to Prabhu Singh, but without charging any rental amount". He admits in his cross-examination that "he never saw any fight between Prabhu Singh and his wife".

Nemichand (P.W.12) proves the recovery of the dead body from the park and proves the photographs, Ex. P.15 to Ex. P.19, taken by him.

Deshraj Singh (P.W.13) is the Malkhana in-charge. He merely speaks about keeping the recovered items safely in the malkhana.

Bhagwat Singh Hingar (P.W.14) is the Investigating Officer, who also proves the recovery of the danda at the instance of the appellant. The information given by the appellant under Section 27 of the Evidence Act is Ex. P.23, and the danda was recovered by recovery memo Ex. P.12.

The learned Public Prosecutor has vehemently contended that the prosecution has succeeded in proving its case as there is sufficient evidence to show that the appellant was living with his wife and two children in the ramshackle (tapri) in the park; there is an evidence that under the influence of liquor he would fight with his wife. There is evidence that he has absconded with his two children; there is the evidence of recovery of danda. Thus, obviously the appellant had committed the murder of his wife.

Heard the learned Public Prosecutor, perused the impugned judgment and examined the record.

Undoubtedly, the case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Chanda Singh Vs. Ranbir Singh, (2014) AIRSCW 5537 . The Hon''ble Supreme Court has observed as under:--

"(1) ...Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case.

In a case based on circumstantial evidence, the prosecution does not succeed by merely revealing parts of a jigsaw puzzle, and by leaving gaping holes in its story. It is, indeed, trite to state that the distance between "may be true" and "must be true" is a long distance. But nonetheless, the prosecution is required to cover the said distance. The prosecution cannot rest on its oars till it establishes its case through cogent and convincing evidence. As a swallow does not make a spring, so tit-bits of evidence, here and there, do not establish the case of the prosecution.

Dr. Vishwadeepak (P.W.5) has spoken about the injuries discovered on the body of Rami, the deceased. According to the opinion of the Medical Board she had died as a result of asphyxia due to throttling. Thus, the prosecution has succeeded in proving that Rami had died a homicidal death.

However, the issue before the court is whether the appellant is responsible for causing the death of his wife?

A bare perusal of the evidence mentioned above clearly reveals that the prosecution has produced a single piece of evidence against the appellant, i.e. recovery of a danda. Since the danda did not have any blood upon it, since the danda was not sent for FSL examination, the mere recovery of it is absolutely innocuous. Such a recovery does not connect the appellant to the alleged crime. Perusal of the impugned judgment also reveals that the learned Judge has meticulously analysed the evidence produced by the prosecution and the learned Judge has validly concluded that in the absence of cogent and convincing evidence the appellant cannot be convicted for offence under Section 302 IPC.

It is, indeed, trite to state that the prosecution has to stand on its own two legs. It has to cover a long distance between "may be true" and "must be true". It must produce cogent and convincing evidence before an accused can be convicted of an alleged offence.

In the present case, the prosecution has failed to establish the case beyond a reasonable doubt. The jurisdiction of this court in interfering with a judgment of acquittal, is rather narrow. If the view taken by the trial court is a possible one, then this court is precluded from interfering with the judgment of acquittal.

While relying upon the case of Chandrappa and Others Vs. State of Karnataka, (2007) CriLJ 2136 : (2007) 3 JT 316 : (2007) 3 SCALE 90 : (2007) 4 SCC 415 : (2007) 2 SCR 630 in the case of Nallabothu Ramulu @ Seetharamaiah and Others Vs. State of Andhra Pradesh, (2014) AIRSCW 2440 : (2014) CriLJ 2487 : (2014) 5 JT 404 : (2014) 3 RCR(Criminal) 257 : (2014) 5 SCALE 436 the Hon''ble Supreme Court has reiterated the principles about the powers of the appellate court while dealing with an appeal against the order of acquittal. The principles are as under:--

"From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

In the present case even two views are not possible. As the prosecution case is devoid of cogent and convincing evidence.

For the reasons stated above, this court finds no reason for interfering with the judgment of acquittal. Hence, this appeal is devoid of any merit. It is, hereby, dismissed.