Tika Ram vs State of Rajasthan

R.S. Chauhan, J.—Aggrieved by the judgment dated 16.10.2004 passed by the Sessions Judge, Jaipur District, Jaipur, the appellant, Tikaram, has approached this court. By the said judgment the learned Judge has convicted the appellant for offence under Section 302 IPC and has sentenced him to life imprisonment, and imposed a fine of Rs. 1000/-, and directed the appellant to further undergo six months of rigorous imprisonment in default thereof.

Briefly, the facts of the case are that on 3.1.2004 at 3:00 PM, Balvindar Singh (P.W. 8) submitted a written report before the SHO, Police Station Harmada, Jaipur City (North). The said report when translated into English , reads as under:-

To,

The SHO, Police Station Harmada, Jaipur City, North

Sub.: For registration of a report.

Sir,

It is to submit that I and Raju had come from Hapud for getting a truck repaired. On 1.1.2004 in the evening, we met Hari Singh, a driver. Hari Singh invited me to go to the house of Tikaram as Tikaram is known to him. Both of us went to the house of Tikaram. There all three of us consumed liquor. During the drinking bouts, a dispute erupted between Tikaram and us. Therefore, we came back to a STD shop situated on the road going to Anokha village. Raju also came and joined us. After ten to fifteen minutes, around 9:30-10:00 PM, Tikaram came back to us. We asked whether he had come back to again fight with us. Again there was a verbal abuse and fighting which took place. Raju slapped Tikaram. Threatening that he would kill us, Tikaram left the place. I and Hari Singh went and slept in the truck belonging to Hari Singh. Meanwhile, Raju went and slept in the truck that had broken down. Yesterday morning around 11:00-12:00 O''clock, when I went to Raju''s truck and opened the window, I found Raju''s dead body lying in the cabin. Due to the injuries inflicted on his head and face, blood was oozing out. I immediately called my employer, the owner of the truck, and informed him about Raju''s murder. My employer told me that he would be coming by the evening. We kept on for waiting for him. But he never came. This morning again I spoke to my employer. He told me that due to an accident of his relative, he could not come. He instructed me to go ahead and file a report before the police. Therefore, I have come to report at the police station. I suspect that Raju has been killed by Tikaram. I am submitting the report so that appropriate action can be taken.

Sd/-

On the basis of this written report (Ex. P. 13), a formal FIR (Ex. P. 14), namely FIR No. 10/2004, was chalked out for offence under Section 302 IPC. The police initiated the investigation. On 3.1.2004, the police arrested the appellant. After completing the investigation, the police filed a charge-sheet before the Judicial Magistrate, Chomu for offence under Section 302 IPC. The case was committed to Sessions Court. By order dated 9.6.2004, the learned Judge framed charge under Section 302 IPC against the appellant. In order to support its case, the prosecution examined eleven witnesses, and submitted thirty-seven documents. The defence did not examine any witness, but did submit two documents. After completion of the trial, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court.

Before we deal with and discuss the contentions raised by the learned counsel, it would be fruitful to first consider the evidence produced by the prosecution.

Balvindar Singh (P.W. 8), the complainant, is the star witness of the prosecution. Although he reiterates basically what he had said in the written report (Ex. P. 13), but he does elaborate the facts of the prosecution case. Therefore, it would be pertinent to reproduce his testimony. In his examination-in-chief he informs the court that "the incident happened on the first day of this year. Mahendra Singh, who is a resident of Merut, his truck was standing at a body maker of trucks situated at Village Anokha. Our employer (Mahendra Singh) sent me and Raju from Merut to look after the truck. He told us that the driver of the said truck has abandoned the truck. Therefore, we should go and get it repaired. At night we reached the truck. Next day was the first day of the new year. Hari Singh also came there with his truck. He told us that since it is new year, we should have our dinner and drinks. We made our food near the truck belonging to Hari Singh. Since Tikaram was known to Hari Singh, he also came there. Tikaram had his food and went away. Twice Tikaram''s children came to us and told Hari Singh that their father is calling us at his house. Twice we refused. Then Tikaram himself came to invite us. This time, Hari Singh told me that we should go to Tikaram''s house as twice we have refused his invitation, and now he himself has come. Around 5:00 or 6:00 O''clock in the evening, we went to Tikaram''s house. Hari Singh gave Rs. 150/- to Tikaram for getting a bottle of liquor. Tikaram brought the bottle of liquor. I, Tikaram and Hari Singh drank together. Suddenly a dispute arose between Hari Singh and Tikaram about driving of the truck, as earlier Tikaram and Hari Singh had worked under the same employer. During the dispute, Tikaram slapped Hari Singh. I told Hari Singh that this is the height, first he calls us twice through his children, then he invites us himself, and then he insults us. Tikaram also slapped me once or twice. We came back to Hari Singh''s truck. I asked Hari Singh what was the need to go to such person''s house, whom you gave money to buy food, and yet he insults us. After an hour, around 8:00 PM Tikaram again came back to us. I asked him whether he had come back to fight with us. I asked him as to what sort of man he is who fought with us and then has come back to us. Tikaram started cursing Hari Singh. Then they beat each other up. Raju was also there. I, Raju and Hari Singh asked Tikaram as to why he is fighting with us since the morning. Raju also told Tikaram that you are eating the food given to you by Hari Singh, and yet you are insulting him. Raju and I also slapped Tikaram twice, or thrice. Few people intervened and asked us why we were fighting, when we were all working for the same company. Tikaram left after threatening us that we will no longer be safe. I and Hari Singh slept in his truck; Raju went to sleep in his truck.

In the morning around 8:00 or 9:00, Hari Singh and I got up, and did our morning activities. Around 10:00 O''clock we wondered why Raju had not come to have tea with us. Then we thought may be he has gone to the nearby tea stall to have tea by himself. Since we felt hungry, we started to have our lunch near Hari Singh''s truck. We wondered as to why Raju had not come even for having lunch with us. After having our lunch, I sent Hari Singh''s helper to see whether Raju was inside the truck, or not as the windows of the truck were closed. When the helper opened the windows, he told us that Raju is lying dead. When I saw Raju''s body, his neck was rolled to a side, and there was a big cut on his head. Since I could not tolerate the scene, I came back to Hari Singh''s truck. I told him everything. Hari Singh told us to call our employer. I called him up and informed him about the incident. My employer told me that he would come to us by the evening. Since he did not come by the evening, we called him again. He told me that he could not come as one of his relatives had met with an accident. He also told me to report the matter to the police. I filed the written report (Ex. P. 13). The FIR is Exhibit-P. 14. Since twice Tikaram had fought with us, it seems that Tikaram had committed the murder". The witness then proved the documents prepared during the initial investigation.

In his cross-examination, he claims that "they had left Hapur on 30.12.2003 for Jaipur. We left Hapur in the evening". He also clarifies that "the incident had occurred during the intervening night of 1st and 2nd January, 2004". When he was confronted with his police statement (Ex. D. 1), he claims that "he had told the police that twice Tikaram''s children had come to invite them, but why this fact is not written in his police statement, he cannot say". He further claims that "since he is a driver, he is not too intelligent. He tends to remember main facts, but does not remember the minor ones". He clarifies that "Raju did not go to Tikaram''s house". He also clarifies that "Raju did not have his dinner with them in the evening". He also says that "although Tikaram had liquor, he was not deadly drunk". He also clarifies that "when Tikaram threatened them, they did not take it seriously. For, drivers, after taking liquor, generally speak like this". He further clarifies that "the place where the trucks were parked, that place is not heavily inhabited. In fact, houses are constructed sparsely". He further claims that "the shop where the truck bodies are made was also closed. Moreover, it is wrong to say that a crowd had gathered to look at the dead body". He goes on to clarify that "he had spoken to his employer twice, or thrice. Initially, the employer told me that he will be coming down by the evening, but next morning the employer instructed me to lodge the report at the police station". He further claims that "he is not too literate. He can merely sign in Hindi. When I went to the police station, the police personnel asked me to write the report. The said report was written by police personnel outside the police station".

Hari Singh (P.W. 10) does not reveal as much details as Balvindar Singh. In fact, he claims that "on the date when Raju''s dead body was recovered, he was not even at the spot". In his examination-in-chief he claims that "I had read about the alleged murder in a newspaper at Sikar". But in his cross-examination he does admit that "I and Raju had slapped Tikaram. Tikaram had left the place after threatening us". He also claims that "Raju did not have any dinner with them at night" and that this witness and Vijendra had slept in one Truck, while Raju slept in a separate truck. He further claims that "he did not take Tikaram''s threat very seriously".

Dr. M.D. Qureshi (P.W. 4) was a member of the medical board which performed the autopsy on Raju on 7.1.2004. According to the him, Raju has suffered the following injuries:-

In the opinion of the Board, Raju had died as a result of coma brought about as a result of ante-mortem injury to skull and brain as mentioned. According to this witness, the injuries were sufficient in the ordinary course of nature to cause death.

The other two pieces of evidence is the recovery of Saria (iron rod) at the behest of the appellant. According to Chhagan Singh (P.W. 11), the investigating officer, while the appellant was in police custody he gave an information (Ex. P. 33) under Section 27 of the Evidence Act that he could get an Saria (iron rod) recovered from an open space behind his house. Consequently, by recovery memo (Ex. P. 1), an iron rod was recovered from an open space behind his house. The said recovery was witnessed by Chuttan Singh (P.W. 1) and Gulab Chand (P.W. 5). While Chuttan Singh (P.W. 1) has turned hostile, Gulab Chand (P.W. 5) has supported the recovery. According to the recovery memo (Ex. P. 1), the iron rod had blood stains upon it.

Moreover, according to Chhagan Lal (P.W. 11), the appellant had given another information (Ex. P. 34) under Section 27 of the Evidence Act that he could get his clothes, which he was wearing at the time of the alleged incident, recovered from his house. Consequently, by recovery memo (Ex. P. 3), the police recovered a dark blue shirt and a dark blue pajama. According to the recovery report (Ex. P. 3), the clothes were blood stained. While Chhutan Singh (P.W. 1) has not supported the said recovery, Gulab Chand (P.W. 5) has.

According to Shankarlal (P.W. 7), he had safely kept the recovered items in the Malkhana and had given five sealed packets to Rajendra Singh (P.W. 6). According to Rajendra Singh (P.W. 6), he had deposited the said five sealed packets at the FSL. According to the FSL Report (Ex. P. 36), the cotton swab of blood taken from the place of the alleged murder, the clothes of the accused contained blood group ''A''. But the blood stained soil, and the iron rod merely contained ''human blood''.

Mr. Rajeev Sogarwal, the learned counsel for the appellant has raised the following contentions before this court: firstly, the case is entirely based on circumstantial evidence. However, the prosecution has failed to link the circumstances in a chain which would unerringly point towards the appellant''s guilt.

Secondly, the prosecution has merely proven the fact that the appellant had threatened Raju and others that they would not be safe anymore. Further, that an iron rod and the clothes of the accused were recovered at his instance. Furthermore, that according to the FSL Report (Ex. P. 36), by the clothes and cotton swab had blood group ''A'', while the blood stained soil and, the iron rod had ''human blood''. However, according to the learned counsel, these pieces of evidence are too weak for convicting the appellant of offence under Section 302 IPC.

On the other hand Mrs. Sonia Shandilya, the learned Public Prosecutor has contended that Dr. M.D. Qureshi (P.W. 4) has proven the fact that Raju had died a homicidal death.

Secondly, the three pieces of evidence established by the prosecution unerringly point towards the guilt of the appellant. Therefore, she has supported the impugned judgment.

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

The principle governing appreciation of evidence in circumstantial evidence is too well known. Relying on the case of Hanumant Vs. The State of Madhya Pradesh, , recently in the case of Vasant Sampat Dupare Vs. State of Maharashtra, , the Hon''ble Supreme Court has reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence as under:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 20. Therefore, while appreciating the evidence in the present case, these principles will have to be kept in mind.

Through Dr. M.D. Qureshi (P.W. 4), the prosecution has certainly succeeded in proving that Raju had died a homicidal death. But the issue before this court is whether the appellant is the author of the alleged murder, or not?

As mentioned above, the prosecution has placed four pieces of evidence against the appellant, namely the threat, the recovery of the iron rod (Saria), the recovery of the appellant''s clothes at his instance, and the FSL Report (Ex. P. 36). A threat, that too given in an inebriated state, does not lead to the conclusive inference that the appellant has committed the murder of the deceased. Both according to Balvindar Singh (P.W. 8) and according to Hari Singh (P.W. 10) even they had taken the said threat lightly. For, according to Balvindar Singh (P.W. 8), ordinarily drivers give such a threat when they are drunk. Therefore, the threat does not point to the guilt of the appellant.

As far as the recovery of the iron rod (Saria), and the clothes at the behest of the appellant are concerned, even these recoveries do not connect the appellant to the alleged crime. For, on the Saria only ''human blood'' was discovered. But the said human blood can be of anyone and not necessarily of the appellant. Therefore, the recovery of the iron rod loses its significance.

Although according to the FSL Report (Ex. P. 36), the clothes of the accused and the cotton swab of the blood of the deceased show blood group ''A'', but the prosecution has failed to eliminate the possibility that the appellant''s blood group could also be a blood group ''A''. Therefore, the prosecution has not exclusively established that the clothes of the accused were stained with the blood of the deceased. In the case of Prakash Vs. State of Karnataka, , the Hon''ble Apex Court has observed as under:-

In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash''s seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash''s clothes were those of Gangamma''s blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh. P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash''s clothes were his own blood stains and that his blood group was also AB. 25. Similarly, blood group ''A'' is not so uncommon as not to belong to the accused. A possibility does exist that the accused belongs to blood group ''A''. The prosecution is required to eliminate this possibility. But it has failed to do so.

Hence, the four pieces of evidence do not unerringly point towards the guilt of the accused. The prosecution has merely raised a strong suspicion against the appellant. But suspicion no matter how strong cannot take the place of proof. The prosecution, per force, is required to cover the distance between "may be true" to "must be true". For, an accused cannot be convicted on the basis of suspicion. Hence, the accused has to be given the benefit of doubt.

For the reasons stated above, the appeal is hereby, allowed. The appellant is acquitted of the charges framed against him. Since he is undergoing his sentence, he shall be set at liberty forthwith, if not wanted in any other criminal case.

Keeping, however, in view the provisions of Section 437-A Cr.P.C., the appellant, namely Tikaram, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- 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 appellant, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.