1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : (1) D.B. Criminal Appeal No.984/2003. (Smt. Durga Vs. State of Rajasthan) (2) D.B. Criminal Appeal No.787/2003. (Sujeet @ Surjeet @ Panda Vs. State of Rajasthan) DATE OF JUDGMENT : January 27th, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Ashok Upadhyay, Mr. Sandeep Mehta and Mr. S.G.Ojha, Advocates for the appellants. Mr. K.R. Bishnoi, Public Prosecutor for the State. Reportable BY THE COURT : (Per Hon'ble Mr. Vyas, J.) Both these appeals have been filed by the respective appellant Smt. Durga w/o Bherudas and Sujeet @ Surjeet @ Panda, in which, common judgment dated 11.07.2003 rendered by Addl. Sessions Judge, Sojat (Camp Jaitaran) in Sessions Case No.41/1997 is under challenge, whereby, the learned trial Judge has convicted the accused-appellants for offences under Sections 302, and 201, I.P.C. and sentenced each of the appellants as under : 1. Convicted appellants under Section 302, I.P.C. 2 and sentenced to life imprisonment and fine of Rs.1,000/-, in default of payment of fine, to further undergo 1 month's rigorous imprisonment. 2. Convicted appellants under Section 201, I.P.C. and sentenced to 3 years' R.I. and fine of Rs.500/-, in default of payment of fine, to further undergo 1 month's rigorous imprisonment. The sentences of imprisonment are ordered to run concurrently. Brief facts of the case are that on 25.05.1997, one Bheru Das gave information, Ex.-P/14 to Police Station, Jaitaran that Shyamdas s/o Ramdas is missing from 24.05.1997 after-noon. Thereafter, on 03.06.1997, an information through telephone was given by Arjun Ram, P.W.-2 at Police Station Jaitaran that one dead-body is lying in the well of Arjun Ram which is situated in the agricultural field at Jaitaran and, thereafter, written information Ex.-P/10 dated 04.06.1997 was also given at 8 A.M. by Arjun Ram, upon which, investigation was commenced under Section 174, Cr.P.C. Thereafter, Ramdas, father of missing Shyamdas received information from the police that one dead-body is found in the well of Arjun Ram. On this information, Ram Das and other persons went to the well of Arjun Ram and identified that the said dead- body is of Shyamdas who is missing since 24.05.1997. 3 The police, after completing all the formalities, sent the dead-body for post mortem to the hospital; and, after completion of initial investigation, handed over the dead-body to Ramdas. Thereafter, on 04.06.1997, at 11 P.M., Ramdas, father of the deceased Shyam Das, lodged written report against accused- appellants Smt. Durga and Sujeet @ Surjeet @ Panda. Upon this information, accused-appellants Smt. Durga and Sujeet were arrested for the charge of offences under Sections 302 and 201, I.P.C. and, after investigation, the police filed charge-sheet under Sections 302 and 201, I.P.C. against the appellants in the Court of Addl. Chief Judl. Magistrate, Jaitaran, from where, the case was committed for trial. The trial in the case took place in the Court of Addl Sessions Judge, Sojat (Camp Jaitaran). Learned trial Judge, after framing charge against the accused-appellants for offences under Sections 302 and 201, I.P.C., proceeded to conduct the trial and, to prove the prosecution case, in all, 33 witnesses were produced by the prosecution and as many as 37 documents were exhibited during the trial. After recording the prosecution evidence, statements of accused-appellants were recorded under Section 313, 4 Cr.P.C. Thereafter, in defence, accused-appellant Smt. Durga examined herself as D.W.-1 and certain documents were exhibited in support of the defence. After hearing both the parties, finally the trial Court passed the impugned judgment, whereby, the trial Court convicted and sentenced the accused-appellants as indicated above. While assailing the validity of the judgment rendered by the trial Court, learned counsel for the appellants vehemently argued that the trial Court has not appreciated the evidence in right perspective and passed the judgment upon hypothesis, conjectures and surmises, therefore, the impugned judgment deserves to be set aside. It is also pointed out that as per opinion of the Doctor Suresh Yadav, P.W.-30 who performed the post mortem, it is submitted that there is no evidence which shows that death was homicidal or otherwise, therefore, the prosecution has failed to establish that death was homicidal and was caused by the present accused-appellants. Further, it is submitted that there is not an iota of direct evidence to connect the accused-appellants with the crime. So also, with regard to allegation of illicit relationship between both the accused-appellants, it is 5 submitted that there is no evidence on record to prove the allegation of illicit relationship. The learned trial Court has arrived at the finding only on the basis of presumption and hearsay evidence with regard to illicit relationship between both the accused-appellants. In this view of the matter, conviction of the appellants based on uncorroborated hearsay and circumstantial evidence deserves to be quashed and set aside. The whole basis of allegation of illicit relationship is statement of P.W.-16 Jitendra, who is son of accused- appellant Smt. Durga, so also, other hearsay evidence. While inviting attention towards statement of P.W.-16 Jitendra, it is submitted that upon perusal of the said statement it does not disclose that there was illicit relationship between both the accused-appellants and deceased Shyam Das was having knowledge of illicit relations, therefore, both the accused-appellants murdered him to remove the evidence of illicit relations. As per learned counsel for the appellants, a concocted story of motive has been framed by the prosecution and, for the said purpose, the allegation made by Ramdas in his complaint on 04.06.1997 has been taken into consideration, in which, Ramdas stated that Shyamdas, deceased had seen something wrong in the 6 conduct of accused-appellants and accused-appellants thought that Shyamdas may inform Bherudas, husband of Smt. Durga, therefore, they murdered Shyamdas. But, this allegation was not levelled in the information dated 25.05.1997 given by Bherudas, P.W.-4, husband of accused Durga but has been stated in the FIR filed on 04.06.1997, after about 11 days; meaning thereby, the allegation of illicit relation and, that, the deceased had seen the some objectionable deed of both the accused appellants is baseless and has no foundation before the eye of law. So also, the allegation of motive of murder of late Shyamdas is also concocted because, for the first time, the reason for killing deceased Shyamdas by the accused-appellant was given in the FIR filed by father of deceased Shyamdas on 04.06.1997, after 11 days of missing of deceased Shyamdas. Before that, even husband of accused Smt. Durga made information of missing of Shyamdas to the police station Jaitaran on 25.05.1997 which is on record as Ex.-P/14, in which, there is no assertion or allegation of the husband of accused-appellant Durga that there were illicit relationship in between appellants and Shyamdas knew it. In this view of the matter, the learned trial Court has convicted the accused-appellants 7 on the basis of concocted story which was for the first time brought to the notice of the police when Ram Das, father of deceased Shyamdas, filed written complaint under his thumb impression. Therefore, upon evaluating the credibility of such evidence it emerges that the prosecution has failed to prove its case beyond reasonable doubt. It is pointed out by learned counsel for the appellants that there is no evidence or complaint on record by any family member of Smt. Durga (accused- appellant) nor any witness proved that deceased Shyamdas saw the accused-appellants in objectionable condition; but, on the basis of hearsay allegation of Ramdas, the learned trial Court found that deceased Shyamdas was killed by the accused-appellants because the deceased had seen the accused in objectionable condition and they (accused) apprehended that he will inform Bherudas (husband of accused-appellant Smt. Durga), therefore, upon such type of evidence which is totally doubtful, it is not permissible under the criminal law to convict any person. The learned trial Court has gravely erred in law by relying upon such type of doubtful and hearsay evidence. With regard to evidence of “last seen”, learned 8 counsel for the appellants has invited our attention towards statements of P.W.-8 Paburam, P.W.-9 Bhanwarlal and P.W.-12 Om Prakash. The prosecution adduced their evidence to prove the fact of “last seen”. But, upon perusal of statement of P.W.-8 Paburam, it is found that as per his statement he saw deceased Shyamdas with accused Durga and Sujeet going together and on next day i.e., 25.05.1997, he heard that Shyamdas is missing, then, he told Ramdas that yesterday he had seen Shyamdas with Durga and Sujeet; meaning thereby, the fact of “last seen” had come to the knowledge of Ramdas on 25.05.1997; but, in the information of missing given by Bherudas, husband of accused-appellant Durga, there is no mention with regard to evidence of “last seen” together in the company of accused-appellant Smt. Durga and Sujeet, therefore, statement of P.W.-8 Paburam cannot be accepted for the purpose of proving the fact of “last seen”. More so, P.W.-8 can be said to be planted by the prosecution to prove the fact of “last seen”. While inviting attention towards the statement of P.W..-12 Om Prakash @ Mindia, it is submitted that as per his statement even he saw deceased at Jaitaran and, next day, he came to the village and heard that 9 Shyamdas is missing. In his statement, he has specifically denied that accused-appellant Durga is the same women with whom Shyamdas was going. He has specifically stated that Durga who is present in the Court was not the same woman with whom Shyamdas was going. Further, he has not identified the accused- appellant in the Court. While attacking the aforesaid statement of Om Prakash, P.W.-12, it is vehemently argued that obviously there was information with regard to “last seen” prior to filing the information of missing as well as FIR; but, in the information of missing, there is no such assertion or allegation about deceased having been “last seen” in the company of accused-appellants. With regard to statement of P.W.-9 Bhanwarlal, who is said to be witness of “last seen”, it is argued by learned counsel for the appellants that his testimony is not acceptable because he has made statement that he saw deceased Shyamdas with accused-appellants when they were going towards the Bilara road. But, he is not disclosing on which date he saw the deceased and both the accused-appellants Therefore, as per statement of P.W.-8 Paburam, he saw deceased Shyam Das with appellants at 3 O'clock but he was declared hostile before the Court; and, in the statement of P.W.-12 Om 10 Prakash, he has not identified the appellant Smt. Durga in the Court, therefore, the allegation of illicit relationship also goes because if Smt. Durga (accused) was not with Sujeet, then, obviously the allegation of illicit relationship is doubtful. Learned counsel for the appellant vehemently argued that the prosecution has failed to prove the fact of “last seen” but the learned trial Court has relied upon the testimony of these witnesses who gave different story and, out of the three, P.W.-12 Om Prakash has not identified the accused-appellant in the Court, so also, he has not given any name with whom he has alleged to have last seen the deceased. In this view of the matter, as per learned counsel for the appellant, there is no material on record to prove that the accused-appellants were having illicit relationship and deceased Shyamdas saw them in objectionable condition and, for the said reason, the accused- appellants committed offence under Section 302, I.P.C. while killing deceased Shyamdas. It is also argued that at the time of convicting any accused on the basis of circumstantial evidence, then, chain of circumstances having formed by cogent circumstantial evidence must be proved so as to inescapably point towards the guilt of 11 the accused and if any fact to the contrary comes on record to suggest any other hypothesis than the guilt of the accused, then, the benefit of doubt always goes to the accused. While arguing upon the fact of recovery, it is submitted that as per prosecution case at the instance of the accused-appellant, slippers of deceased were recovered from well where the dead-body of deceased was also recovered. It is argued that again the prosecution has framed concocted story of recovery of slippers at the instance of the accused-appellants because the slippers were lying in the well, then, obviously it must have come to the knowledge at the time of recovery of the dead body on 04.06.1997 from the same well. In this view of the matter, from all angles, obviously the prosecution has failed to prove the case beyond reasonable doubt and as such the learned trial Court has committed error while convicting the accused-appellants for alleged offence of murder. As per learned counsel for the appellants, the prosecution has failed to prove its case beyond reasonable doubt and merely on the basis of surmises and conjectures and evidence of “last seen” convicted the accused-appellants which is totally erroneous, illegal 12 and contrary to the basic principles of law. Therefore, the accused-appellants are entitled for acquittal in this case. Per contra, learned Public Prosecutor vehemently argued that in this case chain of evidence of “last seen” and recovery of slippers of the deceased Shyamdas at the instance of accused-appellants loudly speak that the prosecution has proved its case beyond reasonable doubt. It is contended that the learned trial Court has rightly relied upon the statements of P.W.-8 Paburam, P.W.-9 Bhanwarlal and P.W.-12 Om Prakash, therefore, it cannot be said that no error has been committed by the trial Court while convicting the accused-appellants for offences under Section 302 and 201, I.P.C. In this view of the matter, there is material evidence on record to prove the prosecution case against the accused- appellants. More so, the prosecution has proved its case beyond reasonable doubt. Therefore, the judgment of the learned trial court which is based upon sound appreciation of evidence does not warrant any interference and both these appeals deserve to be dismissed. We have considered the rival submissions 13 advanced by learned counsel for the parties. In this case, from the prosecution side, statements of 33 witnesses were recorded. By leading evidence of 33 witnesses, the prosecution has made efforts to prove the recovery of slippers of the deceased and the fact that deceased was last seen with the accused-appellants and accused-appellants were having illicit relationship. Most of the witnesses are with regard to recovery of body of the deceased, preparation of site-plan, witnesses for recovery of slippers from well from where the body of the deceased was recovered and, specifically, P.W.-1 Ramdas, father of the deceased and P.W.-16 Jitendra, were produced before the Court to prove the fact of filing FIR on 04.06.1997 and, before that, he made all his efforts to search his son Shyamdas, so also, P.W.-16 Jitendra to prove that accused-appellants were having illicit relationship and information of missing of Shyamdas was given through P.W.-4 Bherudas at the police station on 25.05.1997 vide Ex.-P/40. Out of all the prosecution witnesses, learned trial Court has relied upon the testimony of P.W.-8 Paburam, P.W.-9 Bhanwarlal and P.W.-12 Om Prakash @ Minidia, who were examined before the trial Court to prove the 14 fact that deceased Shyamdas was last seen with the accused-appellant. Three prosecution witnesses P.W.-1 Ramdas, P.W.-4 Bherudas and P.W.-2 Arjun were produced to prove the fact that they gave informations to police on different date and P.W.-16 Jitendra to prove the fact of illicit relations of accused-appellants. Learned trial Court convicted the accused-appellants on the basis of circumstantial evidence of last seen together, recovery of slippers of the deceased allegedly at the instance of the appellants and illicit relation of accused-appellants, while relying upon the statements of these witnesses accused-appellants have been convicted for the alleged offences under Sections 302 and 201, I.P.C. and sentenced to undergo life imprisonment. In these appeals, we are assessing the finding arrived at by the trial Court, whereby, it has been held by the trial Court that prosecution has proved its case beyond reasonable doubt. It is settled principle of criminal jurisprudence that for conviction of any accused for alleged offence, the prosecution is required to prove its case beyond reasonable doubt either by direct evidence or by circumstantial evidence. In the case on hand, challan 15 was filed against the accused-appellants on the basis of circumstantial evidence of “last seen” and recovery of slippers and allegation of there being illicit relationship between both the accused-appellants. As per the judgment of the Hon'ble Supreme Court in the case of Jaharlal Das Vs. State of Orissa, AIR 1991 SC 1388, in criminal trial, for convicting any accused on the basis of circumstantial evidence, the prosecution is required to fulfill following three conditions viz., (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; and (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 on any other hypothesis than that of the guilt of the accused. It is further held in the said judgment that in cases depending largely upon the circumstantial 16 evidence there is always a danger that the conjecture or suspicion may taken the place of legal proof and such suspicion however so strong cannot be allowed to take the place of 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. In this case, we are assessing validity of the judgment impugned by the appellants, whereby, learned trial Court has arrived at the finding that prosecution has proved the case beyond reasonable doubt. In our opinion, following important grounds were to be proved by the prosecution which are as follows : (1) Whether there was any motive behind the alleged offence. (2) Evidence of last seen together. (3) Whether on the basis of recovery of the slippers of the deceased the accused- appellants rightly convicted by the trial Court. On the basis of above three points, our adjudication in this case is as follows : 17 (1) Whether there was any motive behind the alleged offence In this case, admittedly, there is no direct evidence against the accused-appellants and the learned trial Court has held the accused-appellants guilty on the basis of circumstantial evidence. For offence under Section 302, I.P.C. it is required to be proved before the Court what was the motive or intention behind the crime. Motive is basic ingredient for holding charge of murder established within the meaning of commission of offence under Section 302, I.P.C. In this case, admittedly, first information of missing was given by Bherudas, P.W.-4, maternal uncle of deceased Shyamdas vide Ex.-P/14, who is also husband of accused appellant Smt. Durga. From bare perusal of Ex.-P/14, it emerges that there was no allegation levelled by Bherudas against accused- appellants with regard to their illicit relation and doubt upon any of the persons. The information is only with regard to missing of Shyamdas and, that too, on 25.05.1997. Another information was given by P.W.-2 Arjun in whose well, situated in his agricultural field, the dead- body of deceased was found. This information was 18 given by Arjun Ram, P.W.-2 on 04.06.1997 at 8 A.M. which is on record as Ex.-P/10. Upon perusal of Ex..- P/10, it is revealed that there is only mention that in the well there is a floating dead-body. Upon this information, the police went on the spot and proceeded to take proceedings under Section 174, Cr.P.C. Later on, a written FIR Ex..-P/1 was filed by P.W.-1 Ramdas, father of the deceased Shyamdas, under his thumb impression on 04.06.1997 at 11 P.M. In the said FIR, for the first time, the allegation was levelled by complainant Ramdas, father of the deceased, that on 04.06.1997 after cremation of the dead-body, number of persons assembled at his residence and, at that time, one Paburam, P.W.-8 informed that on 24.05.1997 at about 3 P.M., at the Asarlai Gate, he had seen in a Taxi Surjeet, Durga and Shyamdas and they were going towards Jaitaran. Thereafter, it is mentioned in the FIR, P.W.-1 Ramdas went in the market of Mochi Bazar, Jaitaran, where, son of Sona Ram Mochi told him that he was earlier studying with Shyamdas and, on 24.05.1997, Shyamdas met him at Jaitaran, at that time, son of Sonaram, Om Prakash @ Mindia asked Shyamdas whe he had come there, then, it was replied by Shyamdas that he had just come to meet. 19 Thereafter, Surjeet, Durga and Shyamdas, all these three persons, went to the S.D.M. Court. Thereafter, Bhanwarlal Bhorawar informed that he saw all the above three persons when they were going towards Bilara on foot. In the written FIR, it is further stated that there was illicit relationship in between accused Surjeet and Smt. Durga, wife of his brother-in-law Bherudas and his son was very cute and he saw some misdeed between the two accused-appellants and, under the impression that he will tell those things to Bherudas, they have done away with his son. But, in this FIR, which is filed by P.W.-1 Ramdas on 04.06.1997 at 11 P.M., near- about 11 days after missing of deceased Shyamdas, it is nowhere stated that from where he has gathered the information of illicit relation of accused-appellants. To prove the motive, before the Court, statement of P.W.-1 Ramdas was recorded, in which, it is stated by him that Sohanlal Mochi, Paburam Gurjar and Bhanwarlal informed him that they saw both accused- appellants and deceased Shyamdas together but, except Paburam, no one has given the date on which they saw both accused-appellants with deceased Shyamdas, therefore, Ramdas stated in the FIR the 20 facts which were said to be informed by these three witnesses. Therefore, statement of Ramdas is nothing but based upon hearsay evidence. Upon perusal of examination-in-chief of P.W.-1 Ramdas, it reveals that Ramdas has not disclosed in his statement how he has received the information of illicit relationship between accused-appellants Durga and Surjeet. Further, it is admitted position of the case that written FIR was filed under the thumb impression of Ramdas on 04.06.1997 and, for the first time, in this FIR the allegation of illicit relation and the reason for alleged murder has been given. Before that, neither any information was given to the police with regard to the fact that accused- appellants were having illicit relations nor such suspicion was expressed. It is also important to observe here that prosecution has failed to prove who has written the FIR dated 04.06.1997 which is filed under the thumb impression of P.W.-1 Ramdas. It was the duty of the prosecution to prove the fact that FIR was written by particular person at the instance of complainant who put his thumb impression; meaning thereby, there was no information to the police prior to filing Ex.-P/4 that accused-appellants were having illicit relation which is motive for the murder, therefore, it is abundantly clear 21 that prosecution has failed to prove the allegation of motive. If husband of accused Smt. Durga or any member of the family was having knowledge of illicit relation between the accused-appellants, then, obviously in between the period 24.05.1997 and 04.06.1997, such information was to be given to the police that Shyamdas was murdered by the accused-appellants because Shyamdas had witnessed something objectionable between these two accused-appellants. It is also very important to consider that none of the witnesses including Paburam, P.W.-8 and Bhanwarlal, P.W.-9 has stated in their testimony that Shyamdas