IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Criminal Appeal No.134/2004 [ENTITY] Vs. State of Rajasthan through Public Prosecutor Date of Order 12.09.[SECTION]3 Present Hon'ble Mr. Justice [ENTITY] Hon'ble Mrs. Justice [ENTITY] Shri [ENTITY], Counsel for accused-appellant Shri [ENTITY], Public Prosecutor for the State Reportable By the Court:-
This appeal is directed against judgment dated 16.12.2003 of learned Additional Sessions Judge (Fast Track, Behror, District Alwar, in [CASE NUMBER] (17/2003), whereby the trial court convicted the accused-appellant for offence under [SECTION] and [SECTION] of the [ACT]. For offence under [SECTION] [ACT], he has been convicted for undergo life imprisonment with fine of Rs.2000/-, in default, to further undergo six months simple imprisonment. For offence under [SECTION] [ACT], he has been sentenced to undergo three years rigorous imprisonment with fine of Rs.500/-, in default, to further undergo two months simple imprisonment. Both the sentenced were ordered to run concurrently.
One [ENTITY] submitted a written report to Station House Officer, Police Station Mandhan, District Alwar, on 28.03.2003 alleging that his elder brother [ENTITY], aged 35 years, had left the home at 8.00 in the morning on 26.03.2003 to work as a labour for harvesting the mustard crop at the agriculture field of [ENTITY]. When he did not return home in the evening, his family members searched for him but he could not be found anywhere. His brother's wife [ENTITY] went to [ENTITY] to enquire about [ENTITY]. [ENTITY] informed that [ENTITY] left two days ago around 8.00 in the evening. The informant came to know in the morning at around 10.30 that dead-body of one person was lying at the foothill on the way leading to Giglana. When he went there, he found the dead-body of his brother [ENTITY]. There were injuries on his head, face and another parts of the body. Blood marks were visible around the body. It appears that he was beaten to death by certain people.
On receipt of a written-report, a regular first information report being [CASE NUMBER] was chalked out for offence under [SECTION] and [SECTION] of the [ACT], and investigation commenced. The postmortem of the dead-body was conducted on 28.03.2003 itself. The accused was arrested on 28.03.2003. One 'lathi' of bamboo and two scales of bamboo were recovered at his instance. The police, after completion of investigation, filed charge-sheet against him for aforesaid offences. Charges against the accused were framed for aforementioned offences to which he pleaded not guilty and claimed to be tried. Prosecution examined as many as 28 witnesses and got 38 documents exhibited. The defence has not produced any witness in support of its case, however, got three documents exhibited. Learned trial court on conclusion of the trial, convicted and sentenced the accused-appellant in the manner indicated above. Hence this appeal.
Shri [ENTITY], learned counsel for accused-appellant, has argued that according to the prosecution, the deceased had gone as a labour for harvesting the mustard crop at the field of [ENTITY] (PW-15) on 26.03.2003. [ENTITY] (PW-16) and [ENTITY] (PW-17) had also gone there for the same purpose. They also worked at the agriculture field till 6.00 pm. Thereafter, all the three labourers and [ENTITY] had wine together on the platform of 'dharamshala' in village Rajgarh. When these peoples were taking drinks, accused [ENTITY] came 8.30 pm and started abusing [ENTITY] (PW-16). He was demanding Rs.40/-, which [ENTITY] owed to him. [ENTITY] caught hold of [ENTITY], as a result of which he fell down from the platform. He started beating [ENTITY] with belt and fists. The witnesses stated that [ENTITY] (PW-15) and deceased [ENTITY] tried to save [ENTITY]. In scuffle, accused-appellant [ENTITY] received two injuries, whereas [ENTITY] and [ENTITY] both received two injuries each. Injury-reports of [ENTITY] is Exhibit P-6 and injury-report of [ENTITY] is Exhibit P-7. [ENTITY] received two simple injuries and both were abrasions caused by blunt weapon. [ENTITY] also received two simple injuries, which were abrasions caused by blunt weapon. The evidence of the prosecution is that all three of them left for their respective houses. [ENTITY] too went for his house. On the basis of aforesaid incident, the prosecution sought to built up a story that [ENTITY] threatened all three persons that he would kill them and then came back with a 'lathi' and killed [ENTITY]. There is no iota of evidence to prove that [ENTITY] had murdered [ENTITY]. The statement of prosecution witnesses in this behalf are completely devoid of credibility and there is absolutely no corroboration for such an allegation. Mere suspicion cannot take place of proof.
Learned counsel argued that the trial court has based conviction of the accused-appellant on surmises and conjectures. On the basis of aforesaid incident of 'maar-peet', the trial court assumed that accused-appellant went to his house and brought 'lathi' for beating deceased and in doing so he went to the house of [ENTITY] in search of [ENTITY] as stated by his wife Smt. [ENTITY] (PW-21). There was no reason why the accused would go to the house of [ENTITY] in search of [ENTITY]. Besides, motive was attributed against [ENTITY], who owed a sum of Rs.40/- to the accused and with whom, he quarreled the previous night and not against [ENTITY]. [ENTITY] (PW-21) has improved upon the original version given to the police under [SECTION] [ACT] (Exhibit D-3). When she was confronted with such statement, she failed to give any explanation. In her police statement, she has stated that accused-appellant [ENTITY] came to her house to enquire about her husband [ENTITY], she did not utter a word about [ENTITY] at that time. [ENTITY] and [ENTITY] do not corroborate the alleged threat given by [ENTITY] at the time of previous incident that he would kill them. Only [ENTITY] stated that [ENTITY] threatened them that he would kill them. The solitary uncorroborated statement cannot be relied upon to convict the accused-appellant. The police has concocted an entirely false story to book the accused-appellant, which is belied from the statement of their own witnesses. [ENTITY] (PW-3) has simply stated that accused met him in the night. He was searching for [ENTITY], [ENTITY] and [ENTITY]. But, he has not named the deceased [ENTITY].
Shri [ENTITY], learned counsel further argued that the trial court wrongly permitted the Public Prosecutor to cross-examine this witness even though he was not declared hostile to also suggest the name of [ENTITY], which was wholly illegal. Learned counsel submitted that the blood of human origin found on the 'lathi' recovered at the instance of appellant and seizure memo of the pant with blood stains, cannot be taken as connecting evidence with the crime. Only because blood of human origin was found on the pant of the deceased and the control soil does not prove him guilty. The pant of the accused was recovered vide Exhibit P-2, which was sealed and put in packet 'E'. According to the prosecution, the blood found on the pant of the accused and 'kameej' and 'paijama' of the deceased was of 'A' group and therefore this was the connecting evidence against the accused-appellant. It is submitted that learned trial court has erroneously held so. It has failed to appreciated that the accused-appellant himself was injured having sustained two injuries on the previous night only few hours ago and there was possibility of stains of own blood found on his pant. The prosecution has failed to prove how many stains were found on his pant. Dr. [ENTITY] (PW-5) has proved four injuries of the appellant [ENTITY] (Exhibit P-5). [ENTITY] received two injuries is clear from the injury report Exhibit P-6. [ENTITY] received two injuries is also clear from the injury-report Exhibit P-7. It was argued that the entire case against the accused-appellant is based on circumstantial evidence. Chain of circumstances sought to be proved against the accused-appellant has got several missing. It is therefore prayed that the accused-appellant be acquitted of the charges. The impugned judgment may be set-aside.
Shri [ENTITY], learned Public Prosecutor, opposed the appeal and argued that the evidence against the accused-appellant on the case has proved guilt of the accused-appellant beyond reasonable doubt. The blood stains that were found on the clothes of the deceased have matched with the blood stains found on the pant of the accused-appellant. The blood on both the clothes were of 'A' group. Besides, the witnesses also proved that the accused had quarreled with [ENTITY], the previous night and it were [ENTITY] and [ENTITY], who intervened to save [ENTITY]. He threatened that he would kill of three of them and therefore the motive is also proved. In this connection, learned Public prosecutor has referred to the statement of [ENTITY] (PW-16). Learned Public Prosecutor argued that the deceased received three injuries, which have been proved by Dr. [ENTITY] (PW-23). [ENTITY] (PW-21) has also proved that accused-appellant was searching for both [ENTITY] and [ENTITY]. [ENTITY] (PW-22) salesman of the liquor shop, has proved that the accused had picked up a quarrel with [ENTITY] and [ENTITY] and [ENTITY]. He had a 'lakdi' in his hand. It is therefore prayed that the appeal be dismissed.
We have given our anxious consideration to rival submissions and perused the material on record.
The motive that has been attributed to the accused-appellant basically pertains to a quarrel which accused-appellant alleged to have picked up with [ENTITY], who owed a sum of Rs.40/- to him and despite demand, he did not refund the same to him. [ENTITY] (PW-15) has stated that he had taken [ENTITY] for harvesting the crop on daily wage basis early in the morning of 26.03.2003. Everybody worked till 6.00 pm in the evening. [ENTITY], [ENTITY] and [ENTITY] wanted money to bye liquor. He gave Rs.100/- to each of them. [ENTITY] purchased a liquor bottle. All four of them consumed the liquor on platform of 'dharamshala' around 8.30 p.m. That time [ENTITY] came there. [ENTITY] started quarreling with [ENTITY]. He pushed [ENTITY], who fell down from the platform and hit him with a belt. He received injuries at the naval of stomach. [ENTITY] tried to free [ENTITY] from the clutches of the accused-appellant. This witness also intervened to save him. In that process, he received injury on his nose. In the night [ENTITY] came to his house and enquired from this witness about his mother. Statement of this witness thus clearly shows that [ENTITY] had quarreled with [ENTITY] and not with anybody else and this witness has also stated that [ENTITY] came to enquire about this witness but has not stated so regarding deceased [ENTITY]. [ENTITY] (PW-17) has also stated that when all four of them were taking drink on the platform of 'dharamshala', [ENTITY] came there and started abusing [ENTITY] who forbade him from doing so. He caught hold the collar of [ENTITY] and beat him. [ENTITY] fell down from the platform of 'dharamshala'. [ENTITY] and [ENTITY] intervened. Though this witness has been declared hostile at the instance of Public Prosecutor but he has also proved that accused-appellant had dispute with [ENTITY] and not with any other. Motive, if at all any, was with regard to [ENTITY].
Coming now to the conduct of accused, it is alleged that after the aforesaid incident he went to his house and returned back with 'lakdi' and then he started searching for the deceased and his companions. [ENTITY] (PW-3) has, in his examination-in-chief, stated that accused met him on the way around 9'O clock and made enquiries about [ENTITY], [ENTITY] and [ENTITY]. The Public Prosecutor was then permitted to put a question to this witness suggesting two more names and in response to this leading question [ENTITY] (PW-3) has stated that accused appellant had enquired about [ENTITY] also. [ENTITY] (PW-18) has also stated that while he was going to his agriculture field in the night at around 9'O clock, he found [ENTITY] on the way. When he enquired from him, [ENTITY] told that he had gone for harvesting to the agriculture field of [ENTITY]. He along-with [ENTITY], [ENTITY] and [ENTITY], was having a drink party. On the way, he found [ENTITY]. He had a 'lathi'. [ENTITY] W/o [ENTITY] (PW-20), who is mother of [ENTITY], has stated that [ENTITY] came to their house around 10'O clock. He was inquiring about [ENTITY]. She has not stated that accused was making enquiry about [ENTITY]. [ENTITY] (PW-21) has made significant development on her previous version to the police and therefore when confronted with her statement under [SECTION] [ACT] given to the police, she failed to give any satisfactory explanation as to why she in the court alleged that accused came to their house in the night inquiring about [ENTITY] and also about [ENTITY]. Since [ENTITY] (PW-21) W/o [ENTITY] has improved upon her original version under [SECTION] [ACT], wherein she did not state that accused was enquiring about [ENTITY] as well, her statement has to be subjected to greatest mode of scrutiny. Thus, in totality it is shown on the aspect of motive that the dispute of appellant was basically with [ENTITY] and not with [ENTITY] but the prosecution witnesses have tried to name [ENTITY] as well, both for the altercation and the physical scuffle and secondly also that some time thereafter accused came back with 'lathi' and was searching for [ENTITY] as well as [ENTITY], their statements do not inspire confidence that the accused would go to enquire about [ENTITY] in the house of [ENTITY].
[ENTITY] (PW-4) has proved recovery of 'lakdi' at the instance of accused-appellant. This witness happens to be brother of deceased [ENTITY]. [ENTITY] (PW-11), police constable, has proved the arrest memo of the accused-appellant (Exhibit P-1). He has also proved the recovery of pant vide recovery memo (Exhibit P-2). Blood stained pant of accused-appellant was recovered vide recovery-memo Exhibit P-2, which was sealed and put in packet 'E'.
What is surprising is the fact that when accused-appellant was arrested, he had four injuries on his body. His injuries have been proved by Dr. [ENTITY] (PW-5). His injury-report is Exhibit P-5. Injury no.1 was abrasion with scar formation 1cm x 0.5cm below left eye, which was simple caused by blunt weapon. Injury no.2 was abrasion 0.5cm x 0.5cm with scar formation on left side of forehead, which was simple caused by blunt weapon. Injury no.3 was abrasion 1cm x 1cm with scar formation of right cheek, which was simple caused by blunt weapon. Injury no.4 was bruise with bluish coluoration 16cm x 3cm across the abdomen below umbilicus, which was simple caused by blunt weapon. Injuries were simple. The fact that the blood group of the stains found on the pant of the accused-appellant and those of the clothes of the deceased, have matched to be of 'A' group, does not conclusively prove that it was the accused-appellant alone and none else, who could have murdered the deceased as there is a missing link here, which is that the prosecution has failed to get the blood group of accused-appellant ascertained.
There is one more missing link in the chain of circumstance against the accused-appellant which is that [ENTITY] (PW-2) and [ENTITY] (PW-4) have proved recovery of 'lathi' vide recovery-memo Exhibit P-3. [ENTITY] (PW-4) and [ENTITY] (PW-2) are witnesses of recovery of two pieces of bamboo 'lathi'. Recovery-memo states that there were blood stains on that 'lathi. The 'lathi' was put in packet 'G' and sent to Forensic Science Laboratory for examination. The report of result of the examination of the FSL (Exhibit P-38) states that the blood could not be detected on 'lathi' from packet 'G', recovered vide Exhibit P-27 at the instance of the accused-appellant.
There is yet another significant aspect of the matter which is that Dr. [ENTITY] (PW-10) has proved the postmortem-report of deceased (Exhibit P-8), according to which following three injuries were found on the body of the deceased:-
1. Incised wound 5x inch over middle of occipital region.
2. Incised wound 2 x inch over left parito occipital region with fracture.
3. Incised wound 4 x inch over left occipital region with fracture.
Postmortem-report (Exhibit P-8) of deceased [ENTITY] has been proved by Dr. [ENTITY] (PW-6), Dr. [ENTITY] (PW-10) and Dr. [ENTITY] (PW-23). According to the postmortem-report, all the injuries of the deceased were ante-mortem in nature and the cause of his death was described to be head injuries. Significantly all the three injuries were incised wound, whereas 'lathi' and 'bamboo' have been recovered at the instance of the accused-appellant. The prosecution witnesses produced by the prosecution have consistently alleged that in the night when the accused-appellant was making search for [ENTITY] and [ENTITY], he was having a 'lathi. This is again a very important missing link in the chain of circumstances.
The law on the question of circumstantial evidence is well settled that an accused can be convicted in a case of circumstantial evidence only if the chain of circumstances against him is so complete as to rule out every single hypothesis that may be compatible with his innocence. Standard of proof in a criminal matters is always beyond reasonable doubt. Therefore, the prosecution in every such case is required to prove guilt of the accused beyond reasonable doubt. If there is any scope of reasonable doubt, benefit of such doubt has to be extended to the accused. The rival submissions have to be therefore tested on that yardstick to find out whether alleged offences against the accused appellant have been proved beyond reasonable doubt.
It is trite that in a case of circumstantial evidence there must be complete chain of evidence which should lead to conclusion that the accused was the only person, who could have committed offence and none else. Each of circumstances that is proved against the accused should form a chain so complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused. Though the prosecution sought to produce a large number of independent witnesses to prove the factum of last seen, motive and recovery against accused-appellants but their testimony stands on a shaky ground and has many contradictions, inconsistencies and does not prove any of those three factors, viz., last-seen, recovery and motive, beyond reasonable doubt. Prosecution has not been able to prove any of these three circumstnaces independently beyond reasonable doubt, let alone forming a chain of circumstance. Analysis of the evidence that we have made above, makes it evident that there are several missing links in the chain of circumstances, which cannot be accepted to be so complete as to point to the guilt of the accused and none else and when every single possibility of accused being innocent is ruled out.
The Supreme Court in [ENTITY] vs. State of M.P.- (2002) 7 SCC 317, in Para 8 of the judgment, held as under:-
Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and 'sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
It may be noted that in [ENTITY], supra, the case was entirely based on circumstantial evidence in which recovery of chain of the deceased and knife used in the commission of offence as well as blood stained clothes of the accused crept suspicion about role of the accused but recovery being delayed, having been made after second remand of the accused, was itself held to be doubtful and the factum about motive that accused was in love with the deceased also not accepted. It was held that only for this reason it cannot even remotely presumed that this could be the cause of murder unless it was substantiated by credible evidence that affair broken beyond redemption. Motive factor was held to have no legal basis to constitute sufficient circumstance to connect the appellant with the crime. The accused was therefore acquitted.
In Mohd. Arif v. State (NCT of Delhi) ([SECTION]1) 13 SCC 621, the Supreme Court held that each of the circumstances has to be assessed on its own merits. Quality rather than quantity of evidence is crucial factor in a case of circumstantial evidence. The court has to be cautious against imaginary inferences or its prejudices, which may unwittingly creep in. Its verdict must be based on clear and irrefutable logic. Responsibility of the prosecution in a case of circumstantial evidence is more as compared to the cases where ocular testimony or the direct evidence is available.
In Kulvinder Singh v. State of Haryana ([SECTION]1) 5 SCC 258, also it was held by the Supreme Court that in exceptional cases, conviction of accused can be based solely on circumstantial evidence but in that case the prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from weakness of defence put up by accused. Circumstances from which guilt is to be drawn should be fully established and should be of a conclusive nature and exclude all possible hypotheses except the one to be proved. Facts so established must be consistent with hypothesis of guilt of accused and chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with innocence of accused and must show that in all human probability the act must have been done by accused and none else.
In Inspector of Police, Tamil Nadu Vs. John David ([SECTION]1) 5 SCC 509, also the Supreme Court sounded a word of caution that the court must be cautious against conjectures and surmises taking place of proof. Circumstances so proved must form a chain of events pointing to guilt of accused beyond all reasonable doubt without there being possibility of any other hypothesis. Each and every incriminating circumstance must be clearly established by reliable and clinching evidence, and the circumstances so proved must form chain of proof from which natural and irresistible conclusion could be drawn as to the guilt of accused and no other hypothesis against guilt is possible. It was further observed by their Lordships that in a case depending largely upon circumstantial evidence, there is always a danger that conjectures and surmises may take place a legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of innocence of the accused. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. It was further observed that when important link goes, the chain of circumstances gets snapped. This is what has happened in the present case because of failure of the prosecution to conclusively connect the accused with the crime.
In view of the above discussion, we are not inclined to uphold the conviction of the accused-appellant, which is entirely based on circumstantial evidence for the reason that chain of circumstances sought to be proved against him has several missing links, which cannot be said to exclude every reasonable possible hypothesis that may be compatible with his innocence.
In the result, the appeal succeeds. The conviction and sentence awarded to the accused-appellant by impugned judgment dated 16.12.2003 passed by the trial court in [CASE NUMBER] is set-aside. The accused-appellant is in jail for about ten years and six months. He shall be released forthwith, if not required to be detained in connection with any other case.
Keeping, however, in view the provisions of [SECTION] of the [ACT], the appellant 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 Deputy Registrar (Judicial) of this Court, which shall be effective for period of six month,s undertaking that in the event of filing of Special leave petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.
The appeal is accordingly allowed.
([ENTITY]) J. ([ENTITY]) J. Jaiman
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
[ENTITY] PS-cum-JW