1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR JUDGMENT D.B.CRIMINAL APPEAL No.387/1983 State of Rajasthan V/s Bapu Singh Date of Judgment ::: 25.03.2010 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MRS. JUSTICE MEENA V. GOMBER Shri Pradeep Shrimal, P.P., for the State. Shri Vijayant Nirwan on behalf of Shri A.K. Gupta, for the accused respondent. BY THE COURT : Heard learned counsel for the parties. 2. The State of Rajasthan has preferred this appeal, after grant of leave to appeal, challenging the impugned judgment and order dated 15th June, 1982 passed by Sessions Judge, Jhalawar in Sessions Case No.80/1981, whereby the accused respondent Bapu Singh S/o Shri Nirbhay Singh was acquitted from the charges under sections 302 and 380, IPC. 3. Briefly stated the facts of the case are that on 5th July, 1981, P.W.5, Ballabh Singh S/o Shri Narbhay Singh lodged a written report Ex. P 6 at Police Station 2 Raipur, District Jhalawar to the effect that his mother Smt. Suraj Bai was sleeping in the Osra (Veranda) outside the room of Smt. Manohari Bai W/o his brother Shri Govind Singh. At about 4-5.30 AM, Smt. Manohari Bai finding that the outer door of her room was latched from outside, called Ishwar Singh to open the same. When she came out of the room in the verandah. On opening of the door, she saw that her mother-in-law Smt. Suraj Bai was lying on her cot with injuries and blood on her body and her two silver anklets ('Kadas') as well as her 'Borla' made of gold, were missing. It was on Manohari Bai's hue and cry that he came to know about the fact that his mother was killed as he was sleeping in his room. On the basis of this information, a case u/s 460 and 380 IPC was registered which was converted into for the offence u/s 302 IPC. After completion of investigation, the Police filed challan against the accused respondent for the offences u/s 302, 394 and 380 IPC before the Magistrate who committed the case for trial to the court of Sessions Judge, Jhalawar. The trial court framed charges against the accused respondent for 3 the offences u/s 302 and 380 IPC. The accused respondent denied the charges and claimed trial. The prosecution, in support of its case, examined 13 witnesses and produced documentary evidence in the form of Ex. P 1 to Ex. P 25. Thereafter, statements of the accused were recorded u/s 313 Cr.P.C. wherein he pleaded false implication on account of enmity. 4. Learned trial court, after considering the submissions of both the parties and examining the record, acquitted the accused respondent. Being aggrieved of the same, present appeal has been preferred by the State. 5. Submission of Shri Pradeep Shrimal, learned Public Prosecutor is that although in the present case there is no eye witness of the incident but there is consistent chain of circumstantial evidence in the form of recovery of ornaments of the deceased as well as the weapon of offence pursuant to the information furnished by the accused u/s 27 of the Evidence Act. He contented that it was a case wherein PW 5, Ballabh Singh and PW 7 Govind Singh who are real brothers of the accused, have deposed against him 4 whereas normally no one would involve one's own real brother in a false case and therefore the statements of PW 5 Ballabh Singh and PW 7 Govind Singh are important. He further contended that the learned trial court has erred in discarding the testimony of these witnesses only on the basis of minor contradictions. Referring to the statements of PW 5 Ballabh Singh, PW 7 Govind Singh, PW 8 Ishwar Singh, PW 2 Santosh Singh and PW 13 Hari Ram, he argued that a complete chain of circumstantial evidence had been clearly established to connect the accused respondent with the crime but learned trial court committed an illegality in acquitting the accused respondent. 6. Learned counsel for the accused- respondent, on the other hand, opposed the learned Public Prosecutor and submitted that PW 8 Ishwar Singh, who is the son of FIR lodger Ballabh Singh, had illicit relations with his aunt PW 9 Manohari Bai W/o Shri Govind Singh and this fact was known to the accused as well as deceased Smt. Suraj Bai who was the grand mother of PW 8 Ishwar Singh and mother-in-law of PW 9 Manohari 5 Bai. It was for this reason that the accused was falsely implicated by PW 5 Ballabh Singh who is non-else but the father of PW 8 Ishwar Singh. He further denied there being any complete chain of circumstantial evidence to connect the accused with the crime. According to him, so called recovery of ornaments at the instance of accused also does not help prosecution for the reason that the ornaments of deceased could not be identified by her husband Nirbhay Singh or by PW 9 Manohari Bai (the daughter-in-law of deceased). It is not out of place to mention that missing of Silver Khungali did not find place in Ex. P 6, FIR. So far as the recovery of weapon of offence i.e. sword was concerned, according to him, it is important to note that the accused was arrested on 5.7.1981 and ornaments of the deceased had allegedly, been recovered on that day itself but there is no justifiable reason for information and recovery of sword after 3 days and this version of prosecution raises doubt. It was further contented that soon after the lodging of report, entire house of the complainant as 6 well as of accused (who are real brothers living in same compound in separate rooms) was taken in possession by the police and none was allowed to enter. Therefore, so called recovery at the instance of accused is also not proved beyond reasonable doubt. He, therefore, summed up stating that finding of acquittal given by learned trial court is based on proper appreciation of evidence and does not warrant any interference. He also submitted that it is a settled law that even if two views are possible on the basis of appreciation of evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be taken. He contended that it was not a fit case where the order of acquittal of the accused respondent passed by the trial court should be disturbed by this court. 7. We have considered the submissions of learned counsels for the parties and minutely scanned the impugned judgment and record of the trial court. 8. It is an admitted fact that there is no eye witness of the incident in the 7 present case and the prosecution case is based on circumstantial evidence which is in the form of recovery of weapon of offence i.e. sword and ornaments of deceased pursuant to information of the accused recorded u/s 27 of the Evidence Act. 9. We have carefully examined the statements of PW 2 Santosh Singh, Tehsildar, before whom the identification parade of ornaments took place. His statements read in the light of the statements of PW 5 Ballabh Singh, PW 7 Govind Singh (who are real brothers of the accused), PW 8 Ishwar Singh S/o Shri Ballabh Singh (nephew of accused) PW 9 Manohari Bai W/o Shri Govind Singh (brother's wife) and PW 13 Hari Ram who one of the witnesses of recovery memo, we find that learned trial court has categorically discussed and considered following circumstances in detail : (a) The accused respondent had a bad reputation as he used to gamble and was always short of money; (b) There was an injury on the wrist of accused Bapu Singh and said injury could only be the result of user of sword; (c) Recovery of ornaments of the deceased pursuant to information furnished by accused respondent Bapu Singh; 8 (d) The recovery of sword and blood stained underwear of accused pursuant to information furnished by accused respondent Bapu Singh. 10. The learned trial court considered the prosecution evidence in detail and observed that only on the basis of bad reputation because of gambling or taking loan from the bank, it cannot be presumed that he killed his own mother for 'Silver Kadas' or 'Borla' and that too on the basis of the evidence of PW 5 Ballabh Singh and PW 7 Govind Singh, (his own real brothers). Learned trial Judge observed that PW 8 Ishwar Singh is the son of PW 5 Ballabh Singh and PW 9 Manohari Bai is the wife of PW 7 Govind Singh (another brother) and they might have their own reasons to depose against him. The trial court has further discussed other circumstances of the evidence and has observed that although there is an allegation that one of the ornaments was silver Khungali but this fact did not find place in the first information report lodged by PW 5 Ballabh Singh. It is relevant to mention that ornaments of the deceased, i.e. silver 'Khungali' and 'Borla' made of gold were not identified even by 9 the husband of deceased Shri Nirbhay Singh nor was 'Khungali' identified by PW 9 Manohari Bai, the daughter-in-law who is expected to have seen her wearing. The trial court also observed that police remained in the house for few hours soon after the incident and no-one was allowed to enter and that this evidence appeared to have been planted because of enmity. 11. We have also examined the cross examination of PW 5 Ballabh Singh, PW 7 Govind Singh, PW 8 Ishwar Singh and PW 9 Manohari Bai and we find that a suggestion was put to all the prosecution witnesses about the illicit relations of PW 9 Manohari Bai with PW 8, Ishwar Singh. PW 7 Govind Singh was a driver and he used to remain away on account of his profession of driving for few days and nights. He admitted that he left 2-3 days before the date of incident for his work. The accused is not supposed to prove defence beyond doubt like prosecution but has to prove the probability of the defence and it is the duty of the prosecution to prove the charges against the accused beyond reasonable doubt. The trial court has also 10 considered other circumstances i.e. injury sustained by the accused and has observed that PW 1, Dr. Jai Prakash, in his statement, has clarified that accused was examined by him on 7.7.1981 and in his opinion, the injury on his wrist was 3 to 4 days old that means at least 4 days before the incident. Said circumstance was rightly not disbelieved by the trial court. We have also examined the statement of Dr. Jai Prakash PW 1 and we find that the finding of learned trial court is based on proper appreciation of evidence and said finding cannot be said to be illegal and perverse. Learned trial court has also observed that although the underwear of accused recovered was blood stained but there was no report of serologist about the fact that the blood found on the underwear was of deceased. The trial court, after considering the prosecution evidence in detail, disbelieved the said circumstance also. So far as the recovery of ornaments of the deceased is concerned, we have already discussed the relevant evidence. We have also examined the finding of the trial court in this regard and we find that 11 the finding of the trial court whereby the said recovery has been disbelieved is totally based on proper appreciation of prosecution evidence. 12. Learned Public Prosecutor is unable to point out any illegality or perversity in the said finding. It is a settled law that if two views are possible on the basis of evidence adduced in the case, one pointing towards the guilt of the accused and other to his innocence, the view, which is favourable to the accused, should be adopted. It is also settled that the order of acquittal of accused passed by the trial court, should not be interfered with unless there are compelling and substantial reasons for doing so. In this regard we find support from the principle in State of Madhya Pradesh Vs. Bacchudas alias Balaram & Others, reported in AIR 2007 SC 1236 and (2009) 10 SCC 401, Dhanapal v/s State by Public Prosecutor, Madras. 13. Having considered all the facts and circumstances of the case and the submissions of the learned counsel for the parties and in the light of the reasons assigned by the trial court for acquittal 12 of the accused respondent, we are of the view that there are no compelling and substantial reasons in the present case for interference in the order of acquittal of respondent passed by the trial court. 14. In view of above discussions, we do not find any merit in this appeal and the same is accordingly dismissed. (Meena V. Gomber),J. (Narendra Kumar Jain),J. Chauhan/