Sube Singh and Others vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 8.3.2006 passed by the Additional Sessions Judge (Fast Track) Kishangarhbas, Alwar, the appellants have approached this court. By the said judgment, the learned Judge had convicted the appellants, Sube Singh, Surendra and Rajendra, for offence under Section 302 read with 34 IPC and for offence under Section 341 IPC, whereas convicted the accused-appellant Gulab Singh for offence under Section 302 read with 120B IPC. But the learned Judge has acquitted Gulab Singh for offence under Section 302 read with 34 IPC and for offence under Section 341 IPC. By an order of even date, the learned Judge has sentenced the appellants as under:--

"Sube Singh, Sureandra and Rajendra

U/s. 302 r.w. 34 IPC: Life imprisonment, imposed them with a fine of Rs. 5000/-, and directed them to further undergo one month of simple imprisonment in default thereof.

U/s. 341 IPC: One month simple imprisonment.

Gulab Singh

U/s. 302 r.w. 120B IPC: Life imprisonment, imposed him with a fine of Rs. 5000/- and directed him to further undergo one month of simple imprisonment in default thereof."

Briefly, the case of the prosecution is that on 19.1.2004, Karamveer (P.W.4) lodged a written report at Police Station Khairthal, District Alwar wherein he claimed that "yesterday on 18.1.2004, at 6:00 AM my father, Ramsingh, left his village with Gulab Singh S/o. Gyarsa Ram for the purpose of seeing a tractor at Alwar. Today, on 19.1.2004, around 4:00 to 5:00 AM, Mahendra Singh, a person who belongs to the village of my in-laws, Gangawali (Tatarpur) informed me that last night around 8:00 PM my father was assaulted with Kulhadies, Farsies and Lathies near the boring of Ramsingh S/o. Soniya. He was assaulted by Sube Singh S/o. Khyali Ram, Suresh @ Surendra, Rajendra both sons of Sube Singh, Meenu W/o. Sonu @ Surendra, Gulab Singh, by caste Jat, r/o. Village Todarpur, and by Sarli widow of Leelaram Jat, r/o. Gangawali (Tatarpur). Due to this assault, my father has expired on the spot itself. Due to land disputes, by playing fraud upon my father, they had taken him in order to commit his murder. Immediately after receiving this information, I have rushed here. Mahendra, Ramsingh, Prabhu, Deshraj and other residents of Village Gangawali (Tatarpur) have seen this incident. I am filing this report so legal action can be taken. Sd/-"

On the basis of the written report (Ex. P.4), the police chalked out a FIR (Ex. P.15), namely FIR No. 22/2004, for offences under Sections 147, 148, 302 and 341 IPC. After completing the investigation, the police submitted a charge-sheet against Sube Singh, Surendra @ Suresh, Rajendra for offences under Section 302 and 341 IPC and against Gulab Singh for offences under Sections 302 read with Section 120B and Section 341 IPC. The said charge-sheet was submitted before the Judicial Magistrate, Kishangarhbas, Dist. Alwar. Since the case was triable by a Sessions Court, the case was sent to the Court of Additional Sessions Judge No. 1, Kishangarhbas. From there, the case was transferred to the Additional Sessions Judge (Fast Track), Kishangarhbas. The learned trial Judge framed charges for offences under Section 302 read with Section 34, and Section 341 IPC against the accused-appellants. However, during the course of the trial, the learned Judge framed an additional charge of offence under Section 120B IPC against Gulab Singh, appellant No. 4 before this court.

In order to prove its case, the prosecution examined sixteen witnesses, and submitted twenty documents. Although the defense did not examine any witness, it did submit six documents. After completion of the trial, the learned Judge convicted and sentenced the appellants, as aforementioned. Hence, this appeal before this court.

During pendency of this appeal, appellant No. 4, Gulab Singh, has expired. Therefore, the present appeal abates qua him.

The prosecution has unfolded its case through four eyewitnesses, namely Ramsingh (P.W.5), Prabhu (P.W.6), Mahendra (P.W.15) and Deshram (P.W.16).

Ramsingh (P.W.5) in his examination-in-chief states that "on 18.1.2004 around 8:00 PM, I was tying my buffaloes inside my house. I suddenly heard an alarm being raised by Ramsingh of Todarpur. The shouting come near my.... Hearing the alarm, I, Deshraj, Mahendra and Prabhu rushed to the place. We saw that Rajendra with a Kulhadi, Sube Singh with a Lathi, and Surendra with Farsi were hitting Ramsingh. By the time we reached, Ramsingh had died. He had suffered injuries on his head and on his neck. There was another person with them, Gulab Singh. The accused persons ran away. The assailants were from Todarpur. These persons live in the Village Tangawali and the accused, Rajendra and Surendra, are married to two daughters of Leelaram of our village. This incident had occurred due to a dispute between the parties over a land. Gulab Singh brought Ramsingh to the place of occurrence. We had informed the police at Jindoli Chowki. The police had come to the place of occurrence". This witness went on to prove the site plan (Ex. P.6), the Panchayatnama (Ex. P.7), the corpse memo (Ex. P.8), recovery memo of the clothes of the deceased (Ex. P.10), the recovery of blood stained soil and plain soil by recovery memo (Ex. P.11).

In his cross-examination, he admits that "before he reached the place of occurrence, Ramsingh had already fallen and had died." He claims that "Ramsingh had injuries on his feet, waist, and head." He admits that "he cannot tell where Ramsingh was assaulted while he was standing. Since Ramsingh had already died, he was not taken to the hospital." He further claims that on 18.1.2004, at 9:30 PM they had submitted a report through the Sarpanch at Jindoli Chowki. The concerned SHO had come to the place of offence. According to him, when the SHO came, Deshraj, Mahendra and Prabhu were present at the spot. On 18.1.2004, around 11:00 AM, the SHO recorded the statements of Mahendra, Deshraj and Prabhu. Then the SHO sent Mahendra to fetch the Karamveer to Todarpur. Karamveer came along with Mahendra on a tractor. Mahendra told everything to Karamveer, on the basis of which, Karamveer submitted a report to the SHO." He further admits in his cross-examination that "there was dispute between him and the complainant on the one hand, and the accused party on the other hand over some electricity connection."

Prabhu (P.W.6) has supported the testimony of Ramsingh (P.W.5). In his cross-examination Prabhu too admits that "by the time he had reached at the place of occurrence, Ramsingh had already expired." He further admits that "by the time they reached the place of occurrence, the accused persons had already left the place." He further claims that "all the four eyewitnesses have told the police everything that they knew about." He further claims that "they had told the police that they want the police to register the case and to begin the case only after Karamveer''s arrival. It is only after Karamveer came, they had discussed the situation and then lodged a report to the police." Moreover, he admitted that "at Tatarpur, the witnesses and the accused persons having a well which was co-jointly used by them. The well was in the name of the accused persons'' father-in-law, Leela. There is also a case pending before the Munsiff Magistrate, Mundawar with regard to the electricity connection." He admitted that "Exhibit-D4 is a copy of the plaint filed by Soniya against the Assistant Engineer." He further admitted that "there was an old animosity between the deceased, Ramsingh and the accused persons." He further claimed that "he has filed a case dealing with electricity in the court at Mundawar where the opposite party is Deshraj, Ramsingh''s father, Soniya, Mahendra and Leelaram."

Mahendra (P.W.15) also supports the testimony of Ramsingh (P.W.5) and Prabhu (P.W.6). However, in his cross-examination, he admits that "before he reached the place of the incident, the assault was finished and the accused-appellants had gone back to their house." Most importantly, he admits that "at the place of occurrence there was no light and it was a dark foggy night." According to him, "due to the dense fog one could not see beyond ten to twenty feet." He further admits that "it is true that the SHO had stayed at the scene of the crime the entire night, but he did not carry out any investigation." Moreover, he admits that "there is a dispute between the father-in-law of the accused, Leelaram, and the complainant party." According to him, "although the electricity connection is in the name of Leelaram and the complainant party is trying to get the electricity connection transferred in their name, but Leelaram has refused to do so." He also admitted that "they have filed a civil case against the wives of accused, Rajendra and Surendra, with regard to electricity connection. We want them to transfer the electricity connection in our name, but they have refused to do so. Therefore, an animosity does exist between us and them".

Deshram (P.W.16) equally supports the other three alleged eyewitnesses. But even he also admits that his father, Soniya, had filed a civil suit against the accused persons and their family members over a dispute regarding the electricity connection.

Mr. Biri Singh Sinsinwar, the learned senior counsel, has raised the following contentions before this court: firstly, it is a case of a blind murder wherein Ramsingh had been killed. But who the real assailants are, nobody seems to know.

Secondly, although the case should have been based on circumstantial evidence, but the investigating agency has purposefully introduced Ramsingh (P.W.5), Prabhu (P.W.6), Mahendra (P.W.15) and Deshram (P.W.16) as eyewitnesses. But all the four witnesses readily admit, in their cross-examination, that they have not seen the actual occurrence. Thus, they cannot be termed as real eyewitnesses of the incident.

Thirdly, all the alleged eyewitnesses and Karamveer (P.W.4), the complainant, readily admit that there is an animosity between the complainant and the witnesses on the one side, and the accused appellants on the other side. Thus, it is clearly a case where the appellants have been falsely implicated in order to settle the score with them.

Fifthly, according to Karamveer (P.W.4), he was informed by Mahendra Singh (P.W.15) that Karamveer''s father, Gulab Singh, was killed by the appellants. But in his cross-examination, Mahendra Singh (P.W.15) has clearly admitted that since it was a dark foggy night, nothing could be seen at the scene of the crime. In fact, there was no light at the place of the occurrence. Thus, the complainant and the alleged eyewitnesses have fabricated a false and a frivolous case against the appellants.

Lastly, even if the complainant, Karamveer (P.W.4), were to be believed that his father was seen on the last occasion in the company of Gulab Singh, even then the said evidence is too weak for convicting the appellants for offence under Section 302 read with Section 34 IPC.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has pleaded that firstly, there is an evidence of last seen as given out by Karamveer (P.W.4).

Secondly, the prosecution has produced four eyewitnesses all of whom have corroborated each other in particular details. Thus, the prosecution has established its case beyond a reasonable doubt.

Heard the learned counsel for the parties, perused the impugned judgment and examined the record.

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:

"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

"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."

In the present case, Karamveer (P.W.4) merely informs the court that on 18.1.2004 at 5:30 AM, his father had left with Gulab Singh for the purpose of seeing a tractor at Alwar. Subsequently, he was informed by Mahendra (P.W.15) that his father had been killed by the appellants. It is, indeed, trite to state that the evidence of last seen is rather weak sort of evidence. The evidence by itself does not connect the appellant to the alleged crime. Moreover, Ramsingh had left with Gulab at 5:30 AM, but his body was not discovered till 8:00 PM. Further, his body was discovered in the village Tatarpur Gangwali Dhani whereas he had left with Gulab Singh from Todarpur. Thus, Ramsingh''s body was not found anywhere near the place of the last seen. Hence, the live link in terms of time and place is conspicuously missing. Therefore, it would not be prudent to convict the appellants on the basis of the evidence of last seen.

Interestingly, all the alleged eyewitnesses, namely Ramsingh (P.W.5), Prabhu (P.W.6), Mahendra (P.W.15) and Deshram (P.W.16) clearly state that they had reached the place of occurrence after the incident. Thus, they cannot even be termed as eyewitnesses. Moreover, Mahendra Singh (P.W.15) knocks the bottom out of the prosecution case when he admits in his cross-examination that there was no light available at the place of the occurrence. In fact, according to him, it was a dark foggy night where one could not see beyond ten to twenty feet. Therefore, it is highly unlikely that the alleged eyewitnesses have actually seen the occurrence.

Most importantly, both the complainant and the alleged eyewitnesses admit in their cross-examination that there was an animosity between the complainant party and the appellants and their family members. In fact, both the parties are involved in civil litigation against each other over a dispute relating to the electricity connection. Since electricity connection is vital for agricultural purpose these days, the dispute over electricity connection adversely affects the right to livelihood of the parties. Thus, the dispute and the animosity is not a minor one. Such an animosity would certainly motivate the complainant and the witnesses to falsely implicate the appellants. Therefore, the contention raised by the learned counsel for the appellants that it is a case of blind murder where nobody has seen the actual commission of the crime, but nonetheless the appellants have been falsely implicated is worthy of acceptance.

For the reasons stated above, this appeal is allowed. The appellants are acquitted of the charges leveled against them. In view of acceptance of the appeal, the appellants No. 1 to 3, namely Sube Singh, Surendra Singh @ Suresh and Rajendra who are confined in jail shall be released forthwith, if not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants No. 1 to 3, namely Sube Singh, Surendra Singh @ Suresh and Rajendra, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] each and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.