[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ----------------------------------------------------------------- CRIMINAL APPEAL No. 513 of 2005 NAURANG LAL V/S STATE Date of Judgment : 15.12.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. JUDGMENT Mr. DHIRENDRA SINGH, for the appellant Mr. K.R. BISHNOI, PP BY THE COURT (PER HON'BLE MR. A.M.KAPADIA, J.): 1.Sole appellant Nauranglal ('the accused', for short) was charged and tried by learned Addl. Sessions Judge No.2, Sri Ganganagar camp Suratgarh in Sessions Case No. 26 of 2003 for offence under Sec.302 of the Indian Penal Code ('IPC', for short) on the accusation that he had committed murder of Sahab Ram. 2.At the end of the trial, as the accused was found guilty for committing murder of Sahab Ram, he was convicted vide judgment and order dated 07.05.2005 for commission of [2] offence under Sec.302 IPC and sentenced to imprisonment for life and fine of Rs.5,000, in default of payment to undergo further simple imprisonment for three months. 3.Aggrieved by the judgment and order, the accused has filed instant criminal appeal with the aid of Sec.374 of the Criminal Procedure Code (“the Code”, for short). 4.The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 4.1 Complainant PW3 Lekh Ram, brother of deceased Sahab Ram submitted a written report Ex.P.1 at Police Station Suratgarh alleging inter-alia that on 22.06.2003 between 9.30 to 11 PM accused appellant Naurang, Prem Singh and deceased Sahab Ram were playing cards near the house of Ramkaran and complainant, Omprakash and Sawai Singh saw them playing cards but in the night Sahab Ram did not return home, then he and other family members searched for him and came to know that Sahab and Naurang took Dinner at the Ganpat's Hotel at about 12.00 in the night and after dinner Sahab and Naurang moved towards their houses but Sahab Ram did not return to house, therefore, complainant suspected that Sahab Ram had been murdered. [3] 4.2 On the basis of the above written report, SHO PS Suratgarh registered a case as C.R. Case No. 334/03 for offence under Section 364 IPC and started investigation. 4.3 During the course of investigation, police inspected the site, recorded the statements of the prosecution witnesses and arrested the accused appellant on 24.06.2003 at 1.15 PM vide arrest memo Ex.P.17. 4.4 On the information of the accused appellant the dead body of Sahab Ram was recovered and police added the offence under Section 302 IPC. Police also recovered 'Danda' and clothes. 4.5 After completion of investigation, police submitted chargesheet against accused appellant for the offence under Section 302 IPC in the Court of Additional Chief Judicial Magistrate, Suratgarh, who committed the case to the Court of Sessions Judge, Shri Ganganagar for trial. The learned Sessions Judge transferred the case to the Court of learned Additional Sessions Judge No. 2, Shri Ganganagar, Camp Suratgarh for trial. 4.6 The learned Additional Sessions Judge No. 2, [4] Shri Ganganagar, Camp Suratgarh ('trial Court' in short), heard arguments on charge and framed charge for offence under Section 302 IPC against the accused- appellant. Accused appellant denied the charge and claimed for trial. 4.7 The trial Court after hearing the arguments of both sides, convicted the accused appellant for offence under Section 302 I.P.C. and sentenced him as mentioned above vide his judgment/order dated 07.05.2005. 5.To prove the culpability of the accused, the prosecution examined as many as 12 witnesses and relied on their oral testimony. The prosecution also produced documents Ex.1 to 39 and Articles 1 to 6 in support of the case. 6.After recording of the evidence of the prosecution witness was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. Accused appellant denied the charges made by the prosecution and stated that he has been falsely implicated in the present case. Accused- appellant did not produce any oral evidence in defence, but exhibited and proved some documents in the support of his case and closed the evidence. [5] 7.On appreciation, evaluation and scrutiny of the evidence on record, the trial court convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs.5,000, in default of payment to undergo further simple imprisonment for three months, giving rise to the instant appeal. 8.Mr. Dhirendra Singh, learned counsel for the accused, in support of the Appeal, has raised the following contentions: (i) There is no witness to the incident; (ii) Case is based on circumstantial evidence (iii) The prosecution has pitted three circumstances against the accused; (1) evidence of last seen, (2) recovery of clothes and (3) recovery of lathi. 9.According to learned counsel Mr. Dhirendra Singh, there are inconsistent version amongst all the witnesses of last seen who are PW2, PW3 & PW5, therefore, no reliance can be placed upon oral testimony of the witnesses of last seen. So far as recovery of clothes and recovery of lathi is concerned, it is contended that no blood was found over the pant and the FSL report also does not connect the accused with the alleged crime and the pant was also not recovered from the place which was in exclusive possession of the accused. In relation to the recovery of lathi it is emphasized that no reliance can be placed because it was found from the house of the sister of [6] accused and the place was accessible to all and the FSL report also does not support the blood group found on the lathi. On the aforesaid premise, according to him, the impugned judgment and order, convicting the accused for commission of the offence punishable under Section 302 IPC is contrary to the evidence on record, therefore, the same deserves to be quashed and set aside by allowing this Appeal and thereby acquitting the accused of the offences with which he was charged. He, therefore, urged to allow this Appeal. 10.Per contra Mr. K.R. Bishnoi, learned Public Prosecutor has supported the impugned judgment of conviction and order of sentence. According to him, on the basis of circumstantial evidence, the prosecution has duly proved and successfully established the complicity of the accused for commission of the offence of murder of deceased Sahab Ram and the trial Court has considered the circumstances after careful analysis of the evidence of prosecution witnesses. On the aforesaid premise, according to him, the impugned judgment and order of conviction and sentence does not call for any interference in this appeal and the same is required to be confirmed by this Court. He, therefore, urged to dismiss the Appeal. 11.We have considered the submissions advanced by Mr. Dhirendra Singh, learned advocate of the Appellant and Mr. [7] K.R. Bishnoi, learned PP for respondent State of Rajasthan. We have perused the impugned judgment and order, and the set of evidence supplied by the learned counsel for the parties during the course of their submissions. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. 12.It is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further, in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion [8] may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The above principles are laid down by the Supreme Court in the case of Jaharlal Das Vs. State of Orissa, AIR 1991 SC 1388. 13.It is also one of the settled principles of law that witnesses may tell lies but not circumstances. The Court must adopt cautious approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana Vs. Ved Prakash, AIR 1994 SC 468. 14.The Supreme Court in the case of Ramkumar Madhusudan Pathak Vs. State of Gujarat, (1998) 7 SCC 702 has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused. 15.The Supreme Court in the very well known case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 [9] SC 1622, has laid down following five principles to base conviction on the circumstantial evidence: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 16.In later decision of the Supreme Court in the case of Jaipal Vs. State of Haryana, (2003) 1 SCC 169, the Supreme Court has held that merely because the accused could have had a motive for causing death of the deceased it would not by itself be enough to sustain the finding of guilt against him. [10] 17.Keeping in forefront the aforesaid principles clearly elucidated by the supreme Court, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the chain of evidence to base conviction on circumstantial evidence adduced by it. 18.To prove the case against the accused on the basis of the circumstantial evidence, the prosecution has pitted the following three circumstances against the accused: (1) evidence of last seen together, (2) recovery of clothes i.e. two pants and one shirt, and (3) recovery of lathi. 19.Now so far as the first circumstance, i.e. accused was found in the company of deceased while playing cards, the prosecution has firstly relied upon the oral testimony of PW2 Sawai Singh, who has inter-alia testified that he knew accused Naurang Singh present in the court, who is son of Ramkaran and his house is situated in front of his house. According to him, the incident took place 7-8 months earlier in the night at about 10 PM and at that time present accused Nauranglal, Sahab Ram and one other person were playing cards in the light of electric pole. Hajari, father of Sahab Ram, was searching for Naurang and Sahab Ram and on inquiring at the house of Naurang Ram, he was also not found. He further testified that he came to know thereafter that Naurang Ram [11] killed Sahab Ram, but he himself did not know who killed Sahab Ram. 20.The prosecution, thereafter, has examined and relied upon PW3 Lekh Ram, who is complainant and the brother of deceased Sahab Ram. He has inter-alia testified that he knew accused Naurang Lal present in the Court and stated that the incident was 9-10 months old and on that day in the evening at 4-5 O'clock he went from house to go towards the 'Mohalla'. On that day he, his friend Sukhdev and friend of Sukhdev, all the three were coming towards their houses and when they reached near the house of Ramkaran Godara, they found there accused Naurang, his brother Sahab Ram and Prem Singh playing cards. He asked his brother Sahab Ram to come home then Naurang and Prem told that his brother had won money and they would play for some more time. His brother Sahab Ram also told him to come home later so he went to home and slept. In the morning, he woke up about 5 AM and found that his brother Sahab Ram was not at home. He told the matter to his father and brother and thereafter they searched for Sahab Ram. He further testified that when they were searching, Sawai Singh and Omprakash told them that those three were playing cards in the night and they had seen them. They also knew that in the night at about 12 O'clock Sahab Ram, Naurang and Prem Singh went to Ashoka Hotel for eating food, near the Railway Station. He further testified that [12] in the evening, he went to the house of Naurang and when he inquired about Naurang, he was not found at home. On the next day, he went to Police Station and submitted a written report Ex.P/1 for registering First Information Report. 21.The prosecution, thereafter examined and relied upon oral testimony of PW5 Bhadar Ram, who is also the brother of the deceased, has testified that incident took place one year and twenty days back and it was 10 O'clock in the night and he was going from his house to the shop and when he reached near the house of Ramkaran Jat, he found his brother Sahab Ram and Prem Singh playing cards. He asked his brother to go home, who stated that he would go home at his own and gave him Rupees six hundred & fifty and thereafter he went to the shop. In the morning, when he reached home, he knew that Sahab Ram did not come home last night then he went to the house of Naurang and asked him about the whereabouts of his brother Sahab Ram at which he frightened and did not speak. On asking two three times, he told that he killed Sahab Ram near Puli then he told the whole matter to his father, on which his father went to the house of Naurang and asked Naurang whether he had killed Sahab Ram and what he had done. He further testified that on inquiry, it was found that Sahab Ram, Prem Singh and Naurang had eaten food in the night at Ashoka Hotel and after arrest Naurang Lal informed that the dead body of Sahab Ram was lying in the [13] Railway Quarter. 22.On overall re-appreciation of the evidence of the aforementioned three witnesses, it is found that there are inconsistent versions coming from them. Out of the three witnesses of last seen, PW2 Sawai Singh has stated that he saw accused Naurang, Sahab Ram and one more playing cards near the pole in front of the house of Ramkaran. Hazari, father of Sahab Ram, was searching accused Naurang and Sahab Ram and he came to know after the incident that Sahab Ram had been killed by Naurang but he himself does know who killed Sahab Ram. Whereas Lekh Ram PW3 has stated that deceased Sahab Ram was his brother and on the day of incident he himself, Sukhdev and one friend of Sukhdev were coming towards house and they saw accused Naurang, his brother Sahab Ram and Prem playing cards. His brother did not return home till morning and next day when they were searching, they were told by Sawai Singh and Omprakash that all the three were playing cards in the night and they took dinner at Hotel Ashoka. The fact of taking dinner has been not found true during investigation. Sukhdev, who saw accused Naurang and Prem Singh playing cards with Sahab Ram, has been examined by the prosecution as PW6 but he has not stated anything about seeing them playing cards. He is simply a witness of recovery of lathi vide Ex.P/14. Friend of Sukhdev and Omprakash Milkman have not been examined by [14] the prosecution. The last witness of last seen Bhadar Ram PW5, is also brother of the deceased, who has stated that he saw only Sahab Ram and Prem Singh playing cards near the house of Ramkaran. Thus, the statements of these three witnesses of last seen are inconsistent as Sawai Singh PW2 is naming two persons viz., accused Naurang and Prem Singh playing cards with the deceased. Lekh Ram PW3, the brother of deceased is also naming three persons playing cards seen by him alongwith Sukhdev, friend of Sukhdev and Omprakash, but Sukhdev, who has been examined by the prosecution as PW6, is silent on this point and Omprakash and the friend of Sukhdev have not been examined. Whereas Bhadar Ram PW5, another brother of deceased, is not naming present accused appellant Naurang but is naming Prem Singh, who has not been chargesheeted. Therefore, on the basis of this inconsistent and uncorroborative statements of the three witnesses of last seen, no reliance can be placed. 23.The evidence of taking dinner at Rajasthan Hotel near railway station owned by Kishanlal PW1 and at Ashoka Hotel, as deposed by Bhadar Ram PW5, has not found support from the testimony of Investigating Officer Narendra Kumar PW11. According to the Investigating Officer, before taking dinner at Ashoka Hotel by two persons, three persons took dinner at Ganpat Hotel but later on he stated that it is true that on the day of playing cards the three persons did not take meal at [15] Ganpat Hotel. The owner of Rajasthan Hotel, namely, Kishanlal has been examined but who was the owner of Ashoka Hotel has not been examined by the prosecution. In view of this suspicious theory of taking dinner, no reliance can be placed on the evidence of taking dinner at the hotel. 24.Now we will examine the second circumstance of recovery of clothes i.e. pants and one shirt. In this connection, on careful scrutiny of Recovery Memo Ex.12, it is revealed that no blood was found on the pant and the FSL Report also does not certify the same. Besides this, the pant was not recovered from a place which was in exclusive possession of the accused appellant. Therefore, on the basis of this circumstance accused appellant cannot be held guilty. 25.The last and third circumstance is the recovery of lathi. In this connection, it would be relevant to refer to FSL Report Ex.24. To prove this, prosecution has examined and relied upon the oral testimony of PW6 Sukhdev Singh and PW7 Amit Kalyan. The FSL report does not support the blood group found on the lathi. Besides this, as per the evidence of Investigating Officer, the place from where the lathi was recovered was accessible to all. 26.On overall re-appreciation of the prosecution witnesses and threadbare scrutiny of the same, none of the three [16] circumstances pitted by the prosecution establish the guilt of the accused. 27.Seen in the above context, the instant appeal deserves to be allowed by quashing and setting aside the impugned judgment and order of conviction and sentence and the accused appellant deserves to be acquitted of the charge under Sec.302 IPC. 28.For the foregoing reasons, the appeal succeeds and accordingly it is allowed. Resultantly, the impugned judgment of conviction dated 07.05.2005 recorded against appellant Nauranglal for the offence under Sec.302 IPC and sentencing him to imprisonment for life with fine of Rs.5000 by the learned Addl. Sessions Judge No.2, Sri Ganganagar camp Suratgarh is quashed and set aside and he is acquitted of the said charge. He is in jail. He will be set at liberty forthwith if not required in any other case (DEO NARAYAN THANVI),J. (A.M.KAPADIA),J. jpa/