IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Bhanwar Lal @ Bhanwara Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1008/2005) 2. Bhanwar Lal @ Bhanwara Vs. State of Rajasthan (D.B. CRIMINAL JAIL APPEAL NO.769/2004) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 20-6-2004 in Sessions Case No.92/2002 (180/2002) passed by Shri Anil Kumar Suroliya, RHJS, Additional Sessions Judge (Fast Track) No.1, Jhunjhunu. Date of Judgment: July 09, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Ms. Usha Devi Chauhan, for the appellant. Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) This is a classic case of haphazard investigation. It is clearly a matter of great concern that the Investigating Officer did not become alive to the situation and implicate an innocent person Bhanwar Lal @ Bhanwara (appellant herein), who was ultimately put to trial before learned Additional Sessions Judge (Fast Track), No.1, Jhunjhunu. Learned Judge vide judgment dated June 20, 2004 convicted and sentenced the appellant as under:- U/s.302 IPC: To suffer imprisonment for life and fine of Rs.2000/- in default to further suffer simple imprisonment for two months. U/s.201 IPC: To suffer rigorous imprisonment for seven years and fine of Rs.1000/- in default to further suffer simple imprisonment for one month. Sentences were ordered to run concurrently. 2. As per the prosecution story Natthu Khan (since deceased) and Mahaveer Chamar were close friends. On July 8, 2002 at 11 PM Bhanwara son of Mahaveer Chamar came to the house of Natthu Khan and asked Natthu Khan to accompany him. Natthu Khan while leaving his house told his family members that he would return on the next day but he never returned back. On July 9, 2002 a dead body was found in the Bada of Chandgi Ram, which was subsequently identified as of Natthu Khan. A written report (Ex.P-43) thereafter was handed over by Shamshad Ali s/o Natthu Khan (Pw.11) at Police Station Bisau with the averments that it was Bhanwara son of Mahaveer Chamar, who took Natthu Khan with him and killed him with the help of his family members. On that report, case under sections 302 and 201 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. The appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jhunjhunu. Charges under sections 302 and 201 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence and stated that he was falsely implicated in the case. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 3. We have heard the submissions advanced before us by learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record. 4. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. 5. Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence we shall now examine as to whether the circumstances relied upon by the prosecution are fully established and the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the appellant. 6. The prosecution has established that death of Natthu Khan was homicidal in nature. Vide postmortem report (Ex.P-2) following antemortem injuries were found on the dead body:- 4cm Horizontal incised wound at Rt. submandibular region present. 4.5cm incised wound Horizontal 3cm below submandibular region. 7cm incised wound in Lt. lateral aspect of neck going post view present with blood. 6cm incised wound with presence of blood muscle deep on middle part of neck at infra scapular region. 9 cm incised wound on middle part of back of scapular region. Dr. Pramod Bajoriya (Pw.16), who performed autopsy on the dead body, opined that cause of death was head injury. 7. Learned trial court in the impugned judgment found following circumstances established against the appellant:- (i) Appellant and the deceased both had illicit relationship with the wife of Mahaveer Chamar. Appellant had threatened to kill the deceased if he would continue the said relationship. (ii) Gandasi, allegedly used in commission of offence, got recovered at the instance of appellant. (iii) Shirt, worn by appellant at the time of incident, also got recovered at the instance of the appellant. (iv) Appellant was seen chasing the deceased by Inayat Khan (Pw.9) and Aslam (Pw.18). 8. Turning to the first circumstance we find that there is nothing on record to establish that the appellant had illicit relationship with the wife of Mahaveer Chamar. Hari Singh (Pw.12), who investigated the case, neither examined Mahaveer Chamar nor Bhanwara Chamar to prove the fact of illicit relationship. A bare look at the testimony of Hari Singh (Pw.12) demonstrates that he did not carry out his statutory duty fairly. The investigation was not conducted in consonance with the ingredients of the offence. In his examination in chief Hari Singh deposed thus:- "मेरȣ तफतीशमɅ यहभीआयाथाǑकरातकोमृतककरȣब 11.00 बजेके लगभगअपनेघरसेभंवरलालपुऽमहावीरचमारकेसाथजानेआयाथा।भंवर लालचमारसेमɇनेपूछताछकȧ थी।भंवरलालचमारकेबयाननहȣंिलखेथे केवलडायरȣ मɅ नोटलगायाथा।" He further stated that:- "येसहȣ हैǑकमृतककेभंवराचमारकȧ माताकेसाथअवैधसà बÛ धहोनामेरȣ जॉंचमɅ आयाथा।" Hari Singh did not explain as to who told him that mother of Bhanwara Chamar had illicit relationship with the deceased. Even if we take the testimony of Hari Singh as it is, we find that it was Bhanwara Chamar who had motive to kill Natthu Khan because of said illicit relationship. 9. It is thus evident that Hari Singh had illegally favoured Bhanwara Chamar. He did not even record the statements of Bhanwara Chamar and his mother. He deposed as under:- "मɇनेभंवराचमारवभंवराचमारकȧ माताकेबयानमɇनेलेखबƨ नहȣंǑकयेऔरना हȣ उनकोमɇनेगवाहरखा।" Hari Singh deliberately ignored the statements of Shamshad Ali and Haleema, who named Bhanwara Chamar as culprit. Hari Singh in his cross examination admitted that:- ".. येसहȣ हैǑकगवाहानहलीमाऔरगवाहशमशादकेƮारान× थूखांकाक× ल भंवराचमारऔरउसकेपǐरवारƮाराकरनाआयाथा।" 10. Shamshad Ali (Pw.11) and Haleema (Pw.8) in their deposition categorically stated that Bhanwara Chamar came in the night on July 8, 2002 and Natthu Khan accompanied Bhanwara Chamar. In view of the statements of kith and kin of the deceased Investigating Officer was duty bound to conduct the investigation in consonance with the ingredients of the offence but unfortunately he did not act fairly. In Sasi Thomas Vs. State (2006)12 SCC 421 their Lordships of the Supreme Court in para 15 indicated thus:- "Proper and fair investigation on the part of the investigating officer is the backbone of rule of law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential. Unfortunately, the appellant has not been treated fairly. When a death has occurred in a suspicious circumstance and in particular when an attempt had been made to bury the dead body hurriedly and upon obtaining apparently an incorrect medical certificate, it was expected that upon exhumation of the body, the investigating authorities of the State shall carry out their statutory duties fairly. The appellant alleges that no fair investigation has been conducted. It is clearly a matter of great concern that the authorities did not become alive to the situation." 11. Another incriminating circumstance according to prosecution is that Inayat Khan (Pw.9) and Aslam (Pw.18) had seen the appellant chasing the deceased. Inayat Khan (Pw.9) in his deposition stated that on July 8, 2002 around 9.30 PM he had seen Natthu Khan going towards his house. At that time Bhanwara Meena was puffing Bidi with him. Bhanwara thereafter had gone to his house. Bhanwara Meena never gave threatening to Natthu Khan. Inayat Khan was declared hostile by the prosecution. Aslam (Pw.18) deposed that on July 8, 2002 he was at his shop till 10 PM. Bhanwara Meena came to his shop and purchased match-box and a bundle of `Bidi'. At that time Natthu Khan also came to his shop, stayed there for some time and proceeded towards the house of Ram Chandra Chamar. Bhanwara Meena, at that time, was puffing Bidi with Inayat Khan. Bhanwara Meena thereafter followed Natthu Khan. 12. From the evidence of Inayat Khan it could not be established that Natthu Khan was last seen alive in the company of appellant Bhanwara Meena. According to Shamshad Ali (Pw.11) and Haleema (Pw.8) while Natthu Khan was sleeping in his house Bhanwara Chamar came over there at 11 PM and Natthu Khan and Bhanwara Chamar both thereafter left the house together. Inayat Khan (Pw.9) and Aslam (Pw.18) had seen Natthu Khan and Bhanwara Meena at the shop of Aslam at 10 PM and thereafter Natthu Khan left the shop and proceeded towards his house. Testimony of Inayat Khan and Aslam thus was not properly considered by the learned trial court. 13. The circumstance that axe and Bushirt recovered at the instance of appellant also could not be established beyond reasonable doubt. As per FSL report the blood found on the axe was not found sufficient for examination. As per the testimony of Hari Singh, clothes and chappal of the deceased also got recovered at the instance of appellant. We have closely examined the recovery memos drawn by Hari Singh. Since testimony of Hari Singh does not inspire confidence, we find ourselves unable to place reliance on the evidence of alleged recoveries of various articles. 14. The circumstances discussed by learned trial court, in our opinion, do not form a complete chain so as not to leave any doubt for the conclusion that the criminal act must have been done by the appellant. In Pawan Kumar v. State of Haryana (2001)3 SCC 628 the Apex Court indicated as under:- “Success of the prosecution on the basis of circumstantial evidence will depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. The evidence on record, ascribed to be circumstantial, ought to justify the inference of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. While, it is true that there should be no missing links in the chain of events so far as the prosecution is concerned, it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of strong suspicion without however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accused must be accepted.” 15. In Sunny Kapoor Vs. State (2006)10 SCC 182 the Apex Court held that for proving guilt of an accused under section 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else. The evidence adduced was found short of the requirement and conviction of accused under section 302/34 was held unsustainable. 16. In Bhagwan Singh v. State of MP (2003)3 SCC 21, the Apex Court held that as far as the evidence of recoveries of certain articles of the deceased on the alleged information given by the accused is concerned, such evidence in itself is too weak a piece of evidence to sustain the conviction of the accused. 17. Applied the lucid tests of the case of circumstantial evidence to the facts of the case on hand we find that evidence adduced at the trial is not qualitatively such that on every reasonable hypothesis the conclusion is that appellants are guilty. 18. Instead of nabbing actual culprit, about whom there is reliable evidence of the Haleema and Shamsad Ali, the Investigating Officer appears to have implicated the appellant falsely. The accusation against the appellant has not been proved to the hilt. Their Lordships of the Supreme Court in Subhash Chand v. State of Rajasthan (2002) 1 SCC 702, indicated thus:- (Para 26) “The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a court of law. The evidence of the investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him.” 19. In the ultimate analysis we find that in the instant case the doctrine of Confirmation by subsequent fact could not be made applicable properly and the prosecution has failed to bridge the gap between `may be true' and `must be true' by clear, cogent and unimpeachable evidence and guilt against the appellant is not proved beyond reasonable doubt. There are many missing links in the chain of circumstantial evidence and this aspect was not properly considered by the learned trial court. An accused who was named in the FIR was left and on his place innocent person was substituted by the Investigating Officer. Learned trial court too put its seal of approval on the defective and unfair investigation. 20. From the facts established we find that the circumstantial evidence in the instant case does fall short of the required standard of proof. The prosecution has failed to establish the charges under sections 302 and 201 IPC against the appellant beyond reasonable doubt. 21. Since conduct of Hari Singh IO (Pw.12) appears to us as unfair we direct Director General of Police Rajasthan to take necessary action in the matter. 22. For these reasons, we allow the appeals and set aside the impugned judgment dated June 20, 2004 of learned Additional Sessions Judge (Fast Track) No.1 Jhunjhunu. We acquit the appellant of the charges under sections 302 and 201 IPC. Appellant Bhanwar Lal @ Bhanwara, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. A copy of this order be sent to Director General of Police Rajasthan. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/