IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Ramesh Chandra Versus State of Rajasthan D.B. CRIMINAL APPEAL NO. 443/2004 Date of Judgment : 27.07.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. K.R. Bhati for the appellant Mr. A.R. Nikub – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This is an appeal preferred by accused appellant Ramesh Chandra, son of Jai Ram Mali, aged 22 years, resident of Chileshwar, Police Station Kareda, District Bhilwara, against the judgment of conviction and order of sentence dated 18.03.2004, passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 167/2003, whereby the accused appellant was convicted for offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life alongwith a fine of Rs.1000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment. Page 1 of 11 The brief facts of the prosecution story are that P.W.5 Govardhan Singh lodged a written report on 12.02.2003 at Police Station Kareda, stating that on that day when he had gone to his well in the village, he had found a dead body in the well. On this report, proceedings under Section 174 CrPC were initiated. Police reached the field of Govardhan Singh and the dead body was identified to be that of Jagdish. During the proceedings under Section 174 CrPC, statements of some of the witnesses were recorded and during that process, it was found that the accused appellant Ramesh Chandra had told the deceased about a dream of 30 kg. gold lying in his agricultural field and had demanded Rs.51000/- for disclosing the place of that gold. Earlier also the accused appellant Ramesh Chandra had said the same things to Kanhaiya Lal, Suresh, Vinod and Jabbar Singh and had collected an amount of Rs.50000/- from various persons. On 08.02.2003, the accused appellant Ramesh Chandra and the deceased Jagdish were seen together while going to agricultural field of the deceased and thereafter the deceased Jagdish, was never seen by anyone. On the basis of the above story, P.W.23, Heera Singh, sent a report on 08.04.2003 for registration of a case against the accused appellant at Police Station Kareda, where FIR No. 23/2003 was registered and the investigation commenced. Page 2 of 11 During the course of the investigation, the accused appellant Ramesh Chandra was arrested and at his instance, as per the information recorded under Section 27 of the Indian Evidence Act, Rs.33050/- were recovered. A sum of Rs.1680/- was recovered from Sita. Other incriminating articles were also recovered at the instance of the accused appellant, as per the information furnished by him. After the usual investigation, a charge-sheet under Section 302 IPC was filed against the accused appellant Ramesh Chandra in the court of Judicial Magistrate (First Class), Mandal, from where the case was committed to the Court of Sessions Judge, Bhilwara for trial and ultimately the case was transferred to the Court of Additional District and Sessions Judge (Fast Track) No. 1, Bhilwara, where the trial took place. The accused appellant was charged for commission of offence under Section 302 IPC. To prove the alleged offence, 23 witnesses were examined by the prosecution, namely, P.W.1 Smt. Pani, P.W.2 Smt. Yashoda, P.W.3 Smt. Anachhi, P.W.4 Kanhaiya Lal, P.W.5 Gordhan Singh, P.W.6 Mohan Lal, P.W.7 Ghisu Lal, P.W.8 Balu Ram, P.W.9 Vinod Kumar, P.W.10 Jabbar Singh, P.W.11 Mithalal, P.W.12 Amara, P.W.13 Dr. Naresh Verma, P.W.14 Shobha Lal, P.W.15 Surajmal, P.W.16 Suresh Chandra, P.W.17 Madan Singh, P.W.18 Smt. Sita, P.W.19 Sualal, P.W.20 Kalu Shankar, P.W.21 Bal Mukund, P.W.22 Mahfooz Ahmed, P.W.23 Heera Singh. The Page 3 of 11 incriminating evidence available on record against the accused appellant was put to him for explanation under Section 313 CrPC and the accused examined one witness, namely, D.W.1 Ramesh Chandra, in his defence. After conclusion of the trial, the learned trial court convicted the accused appellant Ramesh Chandra for offence under Section 302 IPC and recorded an order of sentence for life imprisonment and a fine of Rs.1000/-. In default of payment of the fine, the accused was to further undergo one month's rigorous imprisonment. While assailing the judgment of the learned trial Judge, the learned counsel for the accused appellant contended that there were various contradictions in the statements of the witnesses recorded during the investigation under Section 161 CrPC and the deposition of statements recorded during the course of trial. He further contended that during the course of the proceedings under Section 174 CrPC, no prosecution witness uttered anything regarding the commission of offence, whereas after a delay of about two months after registration of the First Information Report, some witnesses gave incriminating evidence against the accused appellant, which in itself shows that the credibility of the evidence produced during the course of trial is doubtful. The learned counsel for the accused appellant further argued that involving the Page 4 of 11 accused appellant at a later stage creates serious doubt about the veracity of the testimony of the witnesses. Regarding the evidence of P.W.6 Mohan Lal, produced by the prosecution during the course of trial, learned counsel for the accused appellant argued that P.W.6 Mohan Lal deposed a very vague evidence in relation to the the fact that the accused was the last one to be seen with the deceased. For, P.W.6, Mohan Lal did not give the exact date or place where he last saw them together. Learned counsel for the accused appellant also argued that there was no documentary evidence regarding the payment of any amount to the accused appellant Ramesh Chandra. The oral evidence relied upon by the learned trial court was illegal and suffered from infirmity. Moreover, the recovery of the currency notes was made from an open place, thus, the accused appellant could not be held responsible for the same and the currency notes were not identifiable. The learned counsel for the accused appellant further argued that the absence of a motive was one of the most important facts of the present case. The learned counsel also argued that no visible injury was found on the body of the deceased which also created serious doubts about the credibility of the prosecution case. Page 5 of 11 The learned Public Prosecutor while controverting the above arguments vehemently defended the judgment of the learned trial court and argued that the judgment of the learned trial court was based on credible and unimpeachable evidence produced by the prosecution during the course of the trial and it did not suffer from any illegality or infirmity. He further argued that there were sufficient reasons to rely on the evidence of P.W.6 Mohan Lal and recovery of currency notes at the instance of the accused appellant Ramesh Chandra. We have considered the rival contentions of both the parties and evaluated and scanned the evidence produced by the prosecution carefully. The learned trial court while convicting the accused appellant under Section 302 IPC relied upon seven sets of circumstantial evidence against the accused appellant, which are as mentioned below :- (i) The accused had told others about seeing a dream wherein 30 kg. of gold was lying in the agricultural field of the deceased. The accused had demanded a sum of Rs.51000/- from the deceased to unravel location of that treasure to him. (ii) The deceased Jagdish had borrowed a total sum of Rs.52000/- Page 6 of 11 from various persons before his death. (iii) The accused appellant and the deceased were last seen together. (iv) Non- returning of the accused appellant on the night of 08.02.2003. (v) Recovery of an amount of Rs.1680/- from P.W.18 Sita which was given to her by the accused appellant in return for the amount borrowed by him. (vi) Recovery of currency notes of Rs.33050/- at the instance of the accused appellant in pursuance of the information recorded under Section 27 of the Indian Evidence Act. (vii) Recovery of a steel plate of the deceased Jagdish, from the house of the accused appellant. From the perusal of the judgment and the arguments advanced by both the parties, it emerges that there is no ocular evidence against the accused appellant for the commission of offence under Section 302 IPC and there are only circumstantial evidence of different facts against the accused appellant regarding the commission of offence. Page 7 of 11 Principles for basing conviction solely, when circumstantial evidence restart and when a case rests only on circumstantial evidence, inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused and for guilt of any other person. Circumstances from which inference as to guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with principle fact, sought to be inferred from those circumstances. In the case of circumstantial evidence, some of the links may have to be inferred from the proved facts. In drawing these inferences, the Court must have regard to the common cause of natural events and human conduct and their relation to the facts of the particular case. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts. The first circumstance sought to be relied upon by the prosecution is that the deceased died a homicidal death. A human death may be a natural one, or homicidal one or accidental one or suicidal one. It is an admitted case of the prosecution that the deceased Jagdish died a homicidal death. Page 8 of 11 The autopsy of the dead body of the deceased was conducted by P.W.13, Dr. Naresh Verma, and his deposition goes to establish that the deceased did not sustain any external injury on his body. The death was caused due to asphyxia which was the result of drowning. A well-built stout person of 25 years of age cannot be pushed into a well without any resistence or struggle by him. In all eventualities, some external injuries were bound to appear had it been a case of forcible or deceitful pushing in well. To the contrary, his footwears were found in the well-arranged position indicating his wilful activity in coming towards the well. These facts and circumstances raise a reasonable suspicion about the homicidal death and it is possible that the deceased fell into the well accidentallly or it may be suicidal death also because the deceased had borrowed money from so many persons of the village. In this particular case, P.W.6, Mohan Lal, was the only witness who had seen both the accused as well as the deceased last together in the night at 8.00 to 9.00 p.m. and there is sole testimony of this witness about this fact. Other circumstances which were considered by the learned trial court against the accused appellant as circumstantial evidence were about recovery of the currency notes and non- returning of the accused appellant on the night of 08.02.2003 and Page 9 of 11 recovery of a steel plate of the deceased Jagdish at the instance of the accused appellant. After giving our careful consideration, we are unable to agree with the court below. The evidence of P.W.6, Mohan Lal, is so vague that no conclusion could be drawn regarding the fact that the deceased and the accused appellant were seen together last by P.W.6, Mohan Lal. These circumstances which were considered by the learned trial Judge are not sufficient to establish the guilt of the accused. It is well-settled that in a case depending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the learned trial Judge, in the light of these priciples, we find that none of the circumstances are incriminating. In number of cases it has been held that only circumstance, namely, that the deceased was last seen in the company of the accused, by itself is not sufficient to establish the guilt of the accused. The recovery of the currency notes to the tune of Rs.33050/- was made from an open field as per the recovery memo Ex.P.12 and the recovery of a sum to the tune of Rs.1680/- was made from the house of Smt. Sita. Moreover the currency notes were not identifiable and recovery of Thali also does Page 10 of 11 not inspire faith for conviction of the accused appellant. In view of the aforesaid discussion, the circumstances as relied upon by the learned trial court are hardly sufficient to establish the guilt of the accused, therefore, the judgment of conviction and order of sentence passed against the accused appellant Ramesh Chandra cannot be sustained and deserves to be set aside and the appeal preferred by the accused appellant deserves to be allowed. Resultantly, this appeal preferred by the accused appellant Ramesh Chandra is allowed. The judgment of conviction and order of sentence dated 18.03.2004 passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Bhilwara against the accused appellant Ramesh Chandra in Sessions Case No. 167/2003 is set aside and he is acquitted of the charge levelled against him. The appellant Ramesh Chandra is in jail. He be set at liberty forthwith, if not required in any other case. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 11 of 11