HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Jail Appeal No. 985/2016 [ENTITY] son of Ambava Gameti, resident of Chhoti Undari Fhala Fhapota Karma Khet, Police Station Nai, District Udaipur. Appellants Versus The [ENTITY] Respondent For Appellant(s) : Mr. [ENTITY] (amicus-curiae) For Respondent(s) : Mr. [ENTITY], PP HON'BLE MR. JUSTICE [ENTITY]
HON'BLE MR. JUSTICE [ENTITY] Judgment (per Hon'ble [ENTITY], J) 19/04/2017
1. The instant Jail Appeal is directed against the judgment dated 05/09/2016 passed by Additional District and Sessions Judge No.4, Udaipur in [CASE NUMBER] by which the accused-appellant is convicted under [SECTION] of [ACT] for life imprisonment with a fine of Rs.10,000/- in default thereto to undergo for ten days' additional imprisonment and under [SECTION] of [ACT], the accused appellant is convicted for one year's rigorous imprisonment with a fine of Rs.1,000/- in default thereto to undergo seven days' simple imprisonment.
(2 of 8) [[CASE NUMBER]]
2. The contents of Ex.P.26 F.I.R. No.110 dated 06.05.2014 reads as under :-
"lsokesa Jheku S.H.O. lkgc] Fkkuk ukbZ mn;iqj fo"k; %& dkuwuh dk;Zokgh pkgus ckcr~A izkFkhZ %& gqjek firk Fkkojk tkfr xesrh mez 45 lky fuoklh NksVh mUnjh Qyk QksVk dekZ [ksrk Fkkuk ukbZ egksn;th mijksDr fo"k; esa fuosnu gS fd esjk Hkrhtk peu S/O vEck tkfr xesrh o mldh ifRu Jherh dkydh ds vkil esa nksuksa ds >xM+k gksus ls vkSj peu ds }kjk dkydh ds lkFk ekjihV djus ls dkydh vius ikap cPps cPpksa dks NksM+dj fnukad 4-5-2014 dks vius ihgj QksVh pyh xbZ ikapksa cPps cPpkss esjs ikl gh jg jgs FksA ftudh ns[kjs[k o [kkuk esa ns jgk FkkA fnukad 5-5-2014 dks peu ?kj ij vk;k ;g dgdj x;k fd eSa esjs llqjky tk jgk gqA ;s dgdj pyk x;k fQj eSa cPps cPpksa dks [kkuk f[kykdj lqyk fn;k fnukad 6-5-2014 jkf= djhc 1-30 cts peu S/O vEck vk;k vkSj fpYyk jgk FkkA ds ml jkaM dkydh ds pksjk pksjh dgk gS budks ekj ds gh ne yqaxk vkSj esjs fy;s Hkh dgk fd vkt tku ls [kRe dj nqaxkA eSa gkFk esa ryokj ysdj vk;k gq lcdks dkV Mkyqaxk ;s ckr lqudj eSaus mldh rjQ ns[kk rks mlds gkFk esa ryokj Fkh tks esjs utj vkbZ eSs Mj ds ekjs mBdj exjh dh uhps nkSMdj pyk x;k vkSj ihNs eqM dj ns[k jgk Fkk fd peu viuk yM+dk izdk'k esjs ikl fcLrjksa es lks jgk Fkk ftlds fcLrj gVk dj mldk gkFk idM+ chp dj tehu ij ys x;k vkSj xnZu ds ck;ha rjQ ls nks rhu ryokj ds okj fd;s vkSj tkrs le; ;s dgdj tk jgk Fkk fd dkydh rsjs ek cki HkkbZ us eq>ls >xM+k dj ?kj ls ckgj fudkyk ftldk ifj.kke Hkqxr ysukA ml le; peu u'ks esa Fkk fQj peu vius gkFk esa ryokj ysdj Hkkx x;kA eSaus okil vkdj ns[kk rks izdk'k dh xnZu ij rhu okj ryokj ls fd;s gq;s FksA ftlls Hk;adj [kqu fudy jgk FkkA vkSj izdk'k dks eSaus fgykdj ns[kk rks ej x;k bldh gR;k peu }kjk ryokj ls dh xbZ tks eSa ekSds ls ns[k jgk FkkA fjiksVZ djrk gqA dkuquh dk;Zokgh djkuk QjekosaA SD/-
fu- vaxqBk gqjek"
3. While, advancing arguments, it has been contended by the learned amicus curiae/counsel for the appellant that the impugned findings are not correct because the sole eye witness [ENTITY] has not been produced in the testimony, [ENTITY] was having land dispute with appellant-accused, so there is every likelihood that in order to ventilate animosity, [ENTITY] would have killed his son and wrongly named the accused-appellant, in the alleged offence, conduct of [ENTITY] is also not natural, had there been any incident, then he would have informed police authorities and mother of the kids primarily but instead of informing to the police or to the mother of the deceased's kid, one [ENTITY] (3 of 8) [[CASE NUMBER]] was allegedly informed about the alleged assassination, how and why the other kids, who were sleeping with deceased kid did not raise alarm or cried for help, this aspect is also not explained by the prosecution, the child witnesses have also not been arrayed as prosecution witnesses, who could have been natural or independent witnesses to the incident, recovery of the alleged weapon and cloths is also of no use since both the recovery witnesses have not supported the recovery and they have candidly said that their signatures were taken on the fards at thana without reading-over the same to the recovery witnesses, Smt. [ENTITY] wife of the accused has become hostile and she has also said that [ENTITY] complainant-author of the F.I.R was having disputes with her husband [ENTITY], they used to fight over land-issue, which was earlier tried to be resolved by family members and villagers, so there is no substantive and material evidence against the accused-appellant, as such, the finding is not sustainable, hence appeal be allowed and the findings be quashed.
Per contra, learned public prosecutor has contended that prosecution has successfully proved its case. [ENTITY] has clearly said whatever was conveyed to him by [ENTITY]-author of the F.I.R, there is recovery of sword and other incriminatory objects from the possession of appellant-accused, which is supported by medical evidence, so there is no infirmity in the judgment impugned and appeal is bereft of merits, therefore it be dismissed.
(4 of 8) [[CASE NUMBER]]
4. Perusal and appraisal of the evidence reveals that author of the F.I.R Ex.P.26 [ENTITY] has not been examined before the trial Court because of his demise.
Both the recovery witnesses, namely, "[ENTITY]"
and "[ENTITY]", who have been examined as prosecution witnesses being PW.3 and PW.5 have not supported the alleged recoveries. PW.3 [ENTITY] has said that he had signed the memos relating to recovery at the police station and is not aware about the contents of the Fards, he has further said that he is not literate, likewise PW.5 [ENTITY] has also said that he had signed on the recovery memos - Fards on say of police and the Fards were signed at police station, he too has said that he is illiterate and not aware as to what was written in Ex.P.6.
Conduct of "[ENTITY]" is also unnatural because had there been any alleged killing having been committed by the accused "[ENTITY]", then the same would have been informed to the nearest police station and to the mother of the deceased kid [ENTITY] but amazingly story of the prosecution divulges otherwise that instead of nearest police station or mother of the deceased, a neighbour [ENTITY] PW.3 was informed regarding the alleged offence, which too is unnatural.
5. Statements of wife of the accused "[ENTITY]" PW.10 are significant since she has said that she was informed by [ENTITY], who went-over there and informed her that her "son [ENTITY]" was assassinated by a stranger, which goes to reveal that Smt. [ENTITY] was also not informed as to who killed [ENTITY], she has also said that there had been a factum and history of dispute between her "husband [ENTITY] and [ENTITY]" regarding property and (5 of 8) [[CASE NUMBER]] she has further observed that the dispute was a common feature because of which, family members and villagers had made efforts to settle down the dispute mutually.
6. Smt. [ENTITY] has also narrated that she had married fifteen to twenty years back and her eldest son [ENTITY] was aging twelve years, but prosecution has failed to produce any child witness, who were admittedly sleeping with deceased kid [ENTITY], who could have been natural and independent witnesses and might have conveyed veracity and revealed truth as to who caused death of [ENTITY], "reason not to take these child witnesses as prosecution witness/es, has also not been explained, which makes the story of the prosecution dubious and unreliable.
7. Appellant-accused "[ENTITY]" has also explained version of property dispute between him and [ENTITY] under his statements, made under [SECTION] of [ACT], which goes to confirm version of testimony of Smt. [ENTITY] that property relating disputes were there between [ENTITY] and accused [ENTITY].
Once recovery witnesses have proved the said recoveries not to have been recovered according to the provisions of law, F.S.L result whereof becomes substantially immaterial. Ex.P.7 spot map of the event indicates that house of accused [ENTITY], which is shown as "A" and house of complainant [ENTITY], which is shown as "B" were situated in front of each other in same area and spot "A1" has been indicated as a joint agricultural land of [ENTITY] (accused-appellant) and [ENTITY] (the complainant), which is shown to be an open place and also a spot, where the murder of kid [ENTITY] is said to have been committed, had there been any truth in the story of animosity between the "accused" and "complainant" and the accused was (6 of 8) [[CASE NUMBER]] adamant to take alleged revenge, then the assault would have been impinged upon the complainant and not upon own innocent sleeping kid of the accused and strained relations between the spouses does not appear to be a logical and cogent reason to eliminate his own male child by the accused "[ENTITY]".
8. Upon examining the entire evidence, it is clear that there is no eye witness to the incident, so far as author of the F.I.R., who was allegedly sole eye witness of the incident "[ENTITY]" is concerned, has not been produced in the Court, who was having land disputes with accused-appellant [ENTITY], whose kids were allegedly residing with [ENTITY].
"Smt. [ENTITY]" wife of accused appellant has become hostile and she has said that after one day of the event, "[ENTITY]"
came to her and informed that her son [ENTITY] was killed by some unknown person, she has said that she does not know, who killed his son [ENTITY], she has again said that she was not informed that who killed [ENTITY] and how he was killed, she has narrated that she did not give statements as recorded in her police statements Ex.P.21. Statements of PW.3 [ENTITY] are also of trite substance, since in his cross-examination, he has said that he had given the testimony as per the information of [ENTITY], he has also said that the day when [ENTITY] came to him to inform, the night was dark and rest of the four kids were there at the house of [ENTITY], he has also said that he is unaware about any illicit relations between [ENTITY] and [ENTITY] and has further said that he does not know that the alleged illicit relations between "[ENTITY] and [ENTITY]"
(7 of 8) [[CASE NUMBER]] would have been a reason to involve [ENTITY] in order to tread safe.
9. The Investigating Officer has also accepted that the kids were not taken as witnesses, importance of evidence of child testimony would have been of significant value, Had they been taken as witnesses, then truth could have been come before the Court, but the evidence as discussed hereinabove fails to connect the accused with the crime, beyond realms of reasonable doubt.
It is obvious that benefit of doubt is to be extended to the accused in event, if the accused is not proved well within league with the offence beyond reasonable doubt.
10. In [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and in [PRECEDENT], Hon'ble Supreme Court has observed that "it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
In [PRECEDENT] and in [PRECEDENT] the Hon'ble Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt and in [PRECEDENT], Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in [PRECEDENT], the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused (8 of 8) [[CASE NUMBER]] should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
10. We, are of the considered view that prosecution has failed to prove its case beyond the contours of reasonable doubt against accused-appellant, who is entitled to get benefit of doubt.
Resultantly, we allow the appeal and quash the impugned judgment convicting and sentencing the accused- appellant, as such, the accused-appellant be released forthwith, if his custody is not required in any other case.
Keeping in view, however, the provisions of [SECTION] [ACT] the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
Record of the lower Court be sent back promptly with a copy of the judgment.
([ENTITY] ([ENTITY] Sanjay/T.kush