State of Rajasthan vs Ram Kuwar and Others

Gopal Krishan Vyas, J.—The instant cr. leave to appeal has been filed by the State of Rajasthan under Section 378(iii)(i) Cr.P.C. against the judgment dated 28.3.2014 passed by the Addl. Sessions Judge NO. 3, Bhilwara in Sessions Case NO. 70/2012 whereby the learned trial court acquitted the respondents from the offence under Sections 302 and 302/34 IPC.

As per the brief facts of the case a written FIR (Ex. P/18) was filed by PW-2 Kailash Chandra Meena S/o. Panna Lal Meena at Police Station Mandalgarh, District Bhilwara on 28.6.2011, upon which the SHO, Police Station Mandalgarh registered an FIR No. 108 under Section 302 IPC. It is stated in the FIR that the complainant and his younger brother Mohan Lal and Durga Lal were working in the agricultural field, at that time, Durga Lal was taken away by Ram Kuwar and in the evening at about 7.30 pm Durga Lal came back to his house and just after some time he went back from the house at that time, his father Varda asked him to take food but Durga Lal said that he is returning back but did not come back till 9.00 pm in the night, therefore, the father of Durga Lal, Varda went upon well in the agricultural field where Durga Lal was found but upon searching it is found that he died, then father of Durga Lal came back to the house and after taking his brother Modu with him came back on well and give phone call to the police station and informed that somebody has killed Durga Lal. Upon aforesaid complaint, the police registered the FIR against unknown person and commenced the investigation.

During investigation, the body of deceased Durga Lal was taken to the hospital where postmortem was performed by the Board on 28.6.2011 in the night and, thereafter, on the basis of circumstantial evidence, the respondents were arrested.

After recovery of cord (Rassi) from the respondents challan was filed by the investigating officer in the court of Addl. Chief Judicial Magistrate, Mandalgarh from where the case was committed for trail to the District and Sessions Judge, Bhilwara and the said court transferred the case for trail in the court of Addl. Sessions Judge No. 3, Bhilwara. The Addl. Sessions Judge NO. 3, Bhilwara commenced the trial after framing charge against the respondents for offence under Section 302 or 302/34 IPC and commenced the trial. In the trial, statements of 14 prosecution witnesses were recorded and 22 documents were exhibited and after recording statements of witnesses of prosecution, the statements of respondents were recorded under Section 313 Cr.P.C. and in spite of granting an opportunity to lead oral evidence, the respondents did not produce any oral evidence before the court in defence.

The learned trial court after hearing both the parties finally decided the case vide judgment date 28.3.2014 whereby the learned trial court acquitted the respondents from the charges leveled against them.

The learned Public Prosecutor while attacking upon the finding given by the learned trial court for acquittal submitted that the learned trial court has committed a gross error while acquitting the respondents from the charges leveled against them for offence under Section 302 and 302/34 IPC, therefore, the judgment impugned deserves to be quashed.

It is also argued by the learned Public Prosecutor that the learned trial court has erred in disbelieving the statements of prosecution witnesses and for the said purpose, the learned Public Prosecutor invited attention of this Court towards the statements of PW-2 Kailash Chandar, author of FIR, PW-10 Jeet Mal and PW-6 Mohan Lal in which all the witnesses categorically gave evidence with regard to last scene of the deceased with the respondents. The respondents did not give any explanation in the trial where they took the deceased Durga Lal, therefore, when prosecution has led reliable evidence with regard to last scene, then obviously, the learned trial court was under obligation to consider the said evidence for the purpose of convicting the respondents for the alleged offence.

The learned Public Prosecutor invited attention of this Court that as per information given under Section 27 of the Evidence Act, the recovery of cord (Rassi) was made which was used for strangulation of the deceased but this fact is also ignored by the learned trial court and acquitted the respondents from the charges leveled against them. Therefore, it is a fit case in which the judgment impugned deserves to be quashed and respondents are liable to be punished for offence under Section 302 and 302/34 IPC.

The learned Public Prosecutor lastly argued that by leading cogent evidence the prosecution established that there were some enmity between the deceased and the accused with regard to land, therefore, motive was also in existence with the respondents to cause death of deceased Durga Lal but the learned trial court discredited the said evidence and acquitted the respondents from the charges leveled against them, therefore, the judgment based upon erroneous finding deserves to be quashed and respondents are liable to be punished.

Per contra, the learned counsel appearing on behalf of the respondents submits that there is no error committed by the learned trial court because the so called witness PW-2 Kailash Chandra himself stated in his statement that he did not see the incident by his eyes. Likewise, there is no evidence of motive on record. More so as per the prosecution evidence the deceased and the respondents alongwith one more person were taking liquor while sitting together on the date of incident. However, any enmity was there then obviously there was no occasion for the respondents and the deceased to sit together and take liquor, therefore, the learned trial court has rightly arrived at the finding that on the basis of so called last scene evidence, the respondents cannot be convicted. The learned counsel for the respondents submits that it is a case in which the learned trial court appreciated the testimony of witness of last scene PW-2 Kailash Chandra, PW-3 Moda, PW-5 Fundi Lal and PW-10 Jeet Mal and rightly disbelieved their testimony for the purpose of ascertaining the correctness of fact that respondents committed any offence which is punishable under Section 302 IPC, therefore, when there is no eye witnesses in this case and respondents were arrested on the basis of last scene and the learned trial court disbelieved the testimony of witnesses for the purpose of last scene then obviously, no case is made out for granting leave to appeal. It is also argued by learned counsel for the respondents that the recovery of cord (Rassi) is also concocted one, which is also not proved by cogent evidence before the learned trial court, therefore, this cr. leave to appeal filed by the State of Rajasthan may kindly be dismissed.

After hearing the learned counsel for the parties, we have perused the entire record including the FIR. Admittedly, the FIR (Ex P/18) was filed by the PW-2 Kailash Chandra against unknown person. The FIR is as follows:

Upon perusal of above FIR it reveal that there is no whisper with regard to last scene. The only assertion is that somebody killed Durga Lal but unfortunately in the court, PW-2 Kailash Chandra said in examination-in-chief that there was enmity in between the respondent Ram Kumar and Durga Lal with regard to agricultural land, therefore, the respondent Ram Kumar killed him by using cord (Rassi) and Mohan Lal was sitting upon him but in cross-examination, PW-2 Kailash, the author of FIR said that

Upon perusal of above statement of author of FIR we are of the opinion that the learned trial court has rightly discredited the statement so as to hold the respondents guilty for offence alleged against them. We have perused the statements of PW-3 Moda and PW-6 Mohan Lal. Upon perusal of statements of all these witnesses, we are of the opinion that no error has been committed by the learned trial court in acquitting the respondents from the charges leveled against them. It is settled principles of law that for the purpose of convicting any person on the basis of circumstantial evidence, the prosecution is required to produce the complete chain of evidence, so also, to held accused guilty for the offences on the basis of circumstantial evidence, but here in this case, the complete chain is missing. The Hon''ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, held that if case is based upon circumstantial evidence then prosecution is required to prove its case beyond reasonable doubt while leading complete chain so as to held accused guilty. The following adjudication is made by the Hon''ble Supreme Court in paras nos. 152 and 153 of the said judgment, which reads as under:

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra('') where the following observations were made:

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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

Last seen evidence is one of species of circumstantial evidence. Last seen evidence as per Part III Section 7 of Indian Evidence Act, 1872, is relevant evidence against accused. For proving this evidence it is essential for the prosecution to prove two things, being that the accused was seen alone in company of deceased and at place where no other person is expected to interfere. Once this is proved burden of proof under Section 106, Indian Evidence Act, 1872, falls upon accused to prove his innocence. It is pertinent to mention that first burden of proof is on prosecution to prove above said elements and it is only after prosecution successfully proves them that burden shifts on accused to prove his defence. Last seen evidence does not by itself necessarily leads to inference that accused committed crime unless same is duly supported by other links in chain of circumstantial evidence unerringly pointing out guilt of accused. Theory of last seen together evidence is thus held to be not of universal application based on which conviction of accused can be sustained. It shall also be noted that last seen evidence is only relevant evidence to complete chain of circumstantial evidence; however, conviction cannot be solely based on this piece of evidence.

But in this case, upon applying above principles, we are of the opinion that prosecution has completely failed to establish the case of last seen, upon which, the respondents were arrested and prosecuted. The evidence which is on record clearly reveal that deceased and respondents were sitting together and they were taking liquor and Durga Lal left for house alone, therefore, in the opinion of this Court, no error has been committed by the learned trial court in acquitting the respondents from the charges levelled against them.

Therefore, the instant cr. Leave to appeal filed by the State is hereby dismissed.