Rajasthan High Court - Jaipur
Prabhu Alias Prabhulal vs State Of Rajasthan on 30 September, 1993
Equivalent citations: 1994(3)WLC630, 1993WLN(UC)523
JUDGMENT Rajendra Saxena, J.
1. This appeal filed under Section 374(2) Cr.P.C. has been directed against the judgment dt. 11/6/90 passed by the learned Addl. Sessions Judge, Chittorgarh, whereby he found appellant Prabhu alias Prabhulal guilty of the offences under Sections 302 and 201 I.P.C. and sentenced him to life imprisonment to undergo six months' R.I. under the first count and to two years' R.I. and a fine of Rs. 500/-and in default to further undergo R.I. for three months for the second count.
2. The facts of this case can be recapitulated within a narrow compass. It is alleged that deceased Ganga Ram Maharaj aged about 70 years was living in the house of the appellant; that in the night intervening 21st and 22nd Nov. 1987, appellant committed his murder inflicting blows to him by a handle of Kassi (Article 8) in the courtyard of his house, that thereafter he dragged his dead body, which was bleeding profusely by means of a rope, from his house to his room (Kotha) situated near his well. It is the case of the prosecution that appellant while going towards village Chanderia, was seen by PW 12 Purushottamlal in the morning of 22.11.87 and before him, the appellant made an extra judicial confession to the effect that he had killed Ganga Ram and placed his dead body in the room constructed near his well. The appellant is also alleged to have informed Purushottamlal that he was going to the Police Station. It is further the case of the prosecution that in the courtyard of the house of the appellant, large quantity of blood was lying and it appeared that the same was covered by plastering the surface of the courtyard with mud; that marks of dragging were also visible in the path way from the house of the appellant and that at about 100-150 passage away from his house, a piece of blood stained rope and pair of shoes of the deceased lying near a shrub (Jhari) were also noticed by the villagers. Purushottamlal asked Mangu Jat and Madan Balai to go to the room situated near the appellant's well, who found that the dead body of Ganga Ram was lying there. Mangilal Jat in his turn also has informed PW 1 Pyar Chand about the incident. Thereupon, Pyar Chand lodged an oral report on 22.11.87 at 10 A.M. to PW 10 Mohanlal Head Constable of Police Station Chanderia, who scribed FIR Ex. P. 1 and registered a case under Sections 302, 201 I.P.C. PW 5 Sajjan Singh Dy. S.P. rushed to the spot, prepared site plan and its memo Ex. P. 2 and Ex. P. 3 respectively. He noticed drops of blood lying beneath plaster of mud, which appeared to have been freshly made in the courtyard of the appellant's house and the marks of dragging going upto the shrubs, where a blood stained rope and a pair of shoes of the deceased were found lying. He seized the blood stained rope and a pair of shoes vide seizure memos Ex. P. 4 and Ex. P. 5 respectively. He also got the photographs of the house of the appellant, the place where the dead body of Ganga Ram was lying, of the shrubs and of the dragging marks visible on the way. Those photographs are Ex. P. 6 to Ex. P. 18 and their negatives are Ex. P. 19 to Ex. P. 25. It is alleged that after the said incident, the appellant absconded and was arrested on 7.2.88 vide arrest memo Ex. P. 40 in Ahemedabad and that in pursuance to his information memo Ex. P. 41 dt. 10.2.88, he got a blood stained handle of Kassi recovered from a hut situated in his house used for keeping the cattle vide recovery memo Ex. P. 26. The appellant in pursuance of his information memo dt. 12.2.1988 Ex. P. 42 also got recovered one blood stained 'dhoti from his house vide recovery memo dt. 15.2.88 Ex. P. 27. PW 5 Sajjan Singh also seized a pair of blood stained shoes vide seizure memo dt. 22.11.87 Ex. P. 30 from the room, wherein the dead body of Ganga Ram was found lying. It is the case of the prosecution that motbirs Mangilal Jat and PW 9 Girdhari before whom those pair of shoes were recovered had identified those belonging to appellant. After usual investigation, the police submitted challan against the appellant before the learned MJM, Chittorgarh, who committed the case to the Court of Addl. Sessions Judge, Chittorgarh.
3. The appellant against whom charge for the offences under Sections 302 and 201 I.P.C. was framed, pleaded not guilty and claimed trial.
4. The prosecution examined as many, as twelve witnesses and relied on documents Ex. P. 1 to Ex. P. 50. The appellant in his plea recorded under Section 313 Cr.P.C. denied all the circumstances appearing against him in the evidence. He also refuted the factum of giving any information under Section 27 of the Evidence Act and the alleged recoveries as well as the alleged extra judicial confession made before Purushottam. On the other hand, he asserted that Purushottam bore enmity with him, because he wanted to grab the land of one Smt. Anchi which he had resisted. In defence, he has examined DW 1 Laxman Singh and DW 2 Himmat Singh. After trial, the learned Addl. Sessions Judge did not believe the alleged extra judicial confession made by the appellant before PW 12 Purushottam. He however found the following circumstances proved against the appellant:
(1) that on the basis of the facts Incorporated in site plan and its memo Ex. P. 2 and Ex. P. 3 respectively, It was established that the murder of Ganga Ram was committed In the courtyard of appellant's house; that the place where the blood was found lying was freshly plastered by mud and that there were marks of dragging from the courtyard and outside from the house of the appellant to the place where blood stained rope and a pair of shoes of the deceased were found lying; (2) that since the appellant In his plea recorded Under Section 313 Cr.P.C. did not disclose that beside him, his father Ganesh, mother and other members of the family also resided in that house it stands amply proved that the said house was in his exclusive possession;
(3) that the room where the dead body of Ganga Ram was found lying belonged to appellant, where his pair of shoes having blood stains, were also recovered.
(4) that as per the testimony of the Doctor and the motbirs of the inquest report, Ganga Ram had died due to multiple injuries sustained by him and as such his death was homicidal;
(5) that the appellant absconded after the incident; and (6) that the appellant In pursuance to his Informations got one blood stained handle of Kassi and his blood stained 'dhoti' recovered from his house vide recoveries memo Ex. P. 26 and Ex. P. 27 respectively; and (7) that the sealed packets of blood stained soil, blood stained clothes of the deceased viz 'Dhoti', 'Baniyaan', 'Pant' and 'Langot', blood stained pair of shoes of the appellant, blood stained rope seized from nearby shrub, blood stained handle of Kassi and blood stained 'dhoti' of the appellant were found stained with human blood as per F.S.L report Ex. P. 43.
5. The learned trial Judge, therefore, by his impugned judgment convicted the appellant for the offences under Ss 302 and 201 I.P.C. and sentenced him in the manner detailed ad ultra. Hence this appeal.
6. We have heard Mr. N.P. Gupta, learned Counsel for the appellant and Mr. Bohra, learned Public Prosecutor at length and perused the record of the learned lower Court in extenso.
7. Mr. N.P. Gupta has strenuously contended that the learned Addl. Sessions Judge has committed a grave illegality in relying on the contents of memo of site plan and site inspection note Ex. P. 2 and P. 3, specially when the Investigating Officer and the motbirs did not prove those facts in their statements. He has submitted that no drop of blood or trial of blood was found from the alleged place of occurrence to the room where the dead body was alleged to have been found lying nor this fact finds mention in the memo of site plan and that there was no evidence to establish that the house and the room were in exclusive possession of the appellant. According to him, it stands well established from the prosecution evidence that in that house, appellant's father Ganesh, mother and other family members were also residing and hence this possibility cannot be ruled out that the alleged, offence was committed by any other person. Moreover, no question as to whether that house and the room exclusively belonged to the appellant, was put to the appellant while recording his plea under Section 313 Cr.P.C. Therefore, the learned Addl. Sessions Judge has committed a patent illegality in holding that the said house and the room were in exclusive possession of the appellant at the time of the alleged occurrence. Mr. Gupta has further submitted that the alleged recoveries of the handle of the Kassi and the 'dhoti' which were admittedly made after more than two and a half months, were highly suspicious/doubtful and that there is no logic or reason to believe that the appellant would have kept the handle of Kassi and the blood stained dhoti hidden of concealed for such a long period. Moreover, as per chemical report, of the FSL, no blood group either on the blood stained clothes of the deceased or on the handle of the Kassi or dhoti or pair of shoes alleged to be those of appellant, has been determined. Therefore, the aforementioned recoveries do not connect the appellant with the crime. He was also contended that since no test identification parade of the shoes alleged to have been recovered from the room was conducted, it was not proved beyond reasonable doubt that those shoes belonged to the appellant. He has argued that investigation in this case has been conducted in a slipshod manner, because though PW 5 Sajjan Singh, Dy. S.P. had reached on the spot on 22.11.87 and prepared site plan and various memos, he did not care to prepare site plan and memo of the room (Kotha), where the dead body of Ganga Ram was found lying alongwith a pair of shoes. A site plan of that Kotha was prepared as late as on 4.1.88 by PW 8 Govind Singh, S.H.O. which does not inspire any confidence and which is useless. According to him, the prosecution evidence is vague, incomplete and unreliable and material chains in the circumstantial evidence are missing but the learned Addl. Sessions Judge has ignored them and committed a patent illegality in convicting the appellant.
8. On the other hand, Mr. Bohra, the learned P.P. has reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.
9. We have given our most anxious and earnest consideration to the rival submissions made before us. Admittedly, there is no direct evidence of the alleged crime and the entire case hinges on circumstantial evidence. It is a well crystalised principle of our criminal jurisprudence that when conviction is sought on circumstantial evidence the sets of circumstantial evidence must be proved and if proved, those should have the tendency to conclusively point out that it was the accused, who is in all probability the perpetrator of the crime. The various pieces of circumstantial evidence are to be read together and should not be taken into consideration in isolation with each other. The circumstantial evidence should be incompatible with the innocence of the accused. In other words, the prosecution has to establish each circumstance by adducing clear, cogent, convincing independent evidence and the circumstances so established should form a well knit complete chain without giving room to any other hypothesis and should be in consistent with his innocence.
10. Keeping in view the aforementioned well defined parameters for evaluating the circumstantial evidence, let us now scan the evidence recorded in this case. PW 12 Purushottamlal, before whom it is alleged that the appellant had made an extra judicial confession, has been rightly disbelieved by the learned trial Judge. This witness also did not make any mention about the appellant's extra judicial confession in his statement dt. 30.11.87 Ex. P. 50 recorded under Section 164 Cr.P.C. Besides this, Purushottam has given self contradictory and inconsistent statements. Therefore, he is a wholly unreliable witness and his statement does not implicate the appellant with the crime.
11. The homicidal death of Ganga Ram is not in dispute and this fact stands conclusively proved by the testimony of PW 7 Dr. R.D. Bhatt, who. has proved post mortem examination Ex. P. 38.
12. PW 5 Sajjan Singh, Dy. S.P., who made the initial investigation in this case on 22.11.87, has stated that the inspected the site in appellant's house at the instance of Pyar Chand and in the presence of motbirs PW 9 Girdhari and PW 11 Rooplal and prepared the site plan Ex. P. 2 and memo thereof Ex. P. 3 However, he has not cared to state the specific facts which he had seen/observed or noticed while inspecting the site. He has also not cared to prove the contents incorporated in Ex. P. 2 and Ex. P. 3 as to whether he had seen blood lying there or the recently plastered mud in the courtyard or noticed any trial of blood or marks of dragging the dead body. He has simply deposed that he had taken a sample of blood stained soil after removing the plaster from the courtyard as also the controlled sample, which was seized and sealed separately. Besides this, he has not given any details of the facts mentioned in memo of site plan Ex. P. 3 The trial Judge has extensively quoted those facts in his impugned judgment at para No. 14 and relying on those unproved facts has held that the courtyard was freshly plastered by dungpaste (Gobar) that there were marks of dragging the dead body from the courtyard to the main gate (pol) and therefrom upto the place near the shrub, where blood stained rope and a pair of shoes of the deceased were found lying. He has also held that it was established that the marks of dragging were found covered by the plaster of white lime (Pandu) and that below that plaster, drops of blood were visible at the places where the dead body was dragged. However, none of these facts have been deposed either by PW 5 Sajjan Singh or any prosecution witness. PW 12 Pyar Chand has not stated that the Dy. S.P. had inspected the place of the occurrence in the house of the appellant in his presence or at his instance. He has not even said anything about site plan Ex. P. 2 and memo of site plan Ex. P. 3 in his statement. Motbirs PW 9 Girdharilal and PW 11 Roopal have been declared hostile and they have not proved any of the facts mentioned in the site plan Ex. P. 2 and memo of site plan Ex. P. 3 In such circumstances, the contents of Ex. P. 2 and Ex. P. 3 have not been proved at all.
13. In Tori Singh and anr. v. State of Uttar Pradesh , it has been held that a rough sketch map prepared by the I.O. on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit would not be admissible in evidence in view of the provisions of Section 162 Cr.P.C. for it is in effect nothing more than the statement of the I.O. that the eye witnesses told him that the deceased was at such and such place at that time when he was hit. The sketch map is only admissible so far as it indicates all that the I.O. saw himself on the spot, but any mark put on the sketch map based on the statements made by the witnesses would be inadmissible in evidence.
14. It may be mentioned here that neither PW 5 Sajjan Singh nor any of the motbirs has stated before the trial Judge that he had seen the blood lying in the courtyard or that the blood was freshly plastered by the dungpaste in the courtyard or that there were marks of dragging from the courtyard to the main gate (pol) of the house. Therefore, the learned Addl. Sessions Judge has positively committed an illegality in blindly relying on the facts mentioned in site plan and memo thereof Ex. P. 2 and Ex, P. 3 respectively. Hence the first circumstance relied on by the trial Judge has not been proved at all.
15. Not a single prosecution witness has stated that the house, which was inspected by PW 5 Sajjan Singh was in exclusive possession of the appellant. On the other hand, the prosecution witnesses have deposed that in that house, Ganesh, the father of the appellant, his mother and other family members also reside. Even PW 8 Govind Singh SHO has admitted that the house was in the possession of the appellant's father Ganesh. Similarly the prosecution has miserably failed to prove that the room, where the dead body of Ganga Ram was found lying, belonged to the appellant and that the same was in his exclusive possession on the date of alleged occurrence. PW 5 Sajjan Singh did not care to prepare the site plan and memo thereof of the said room on 22.11.87. He has also failed to give any plausible explanation for this lapse on his part. PW 8 Govind Singh SHO, who later on joined the investigation on 22.11.87 of this case, did not prepare the site plan of the said room on that day. On the other hand, he prepared memo of site plan Ex. P. 39 as late as on 4.1.88 and for this, he has also not given any satisfactory explanation. PW 8 Govind Singh has stated that he had prepared memo of site plan Ex. P. 39 at the instance of motbirs Mangilal and Girdhari. However, Mangilal has not been produced while PW 9 Girdhari has been declared hostile. He has simply stated that he had seen the dead body of a brahmin lying in a room situated on the well of the appellant. He has specifically deposed that in his presence, no pair of shoes was seized by the police from that room. On the other hand, it has come in the prosecution evidence that the said well belonged to appellant as well as Mangilal and Ors. Thus, there is not a fringe of evidence to establish that the room wherefrom the dead body of Ganga Rum and pair of shoes of the appellant were recovered, was in exclusive possession of the appellant. Moreover, no such question was put to the appellant by the learned trial Judge while recording his plea under Section 313 Cr.P.C. that the said room and the house were in exclusive possession of the appellant on the date of incident. But in the impugned judgment, the trial Judge has mentioned that since the appellant did not state in his plea that the said house as well as the room from where the dead body was recovered, were not in his exclusive possession, it stood well proved that those were in his exclusive possession on the date of the alleged incident. In our considered opinion, this approach of appreciating the evidence by the court below is patently faulty, incorrect and against the well crystalised principles of criminal jurisprudence. Firstly the onus lay on the prosecution to prove that the house, where the alleged murder took place and the room, where the dead body of deceased Ganga Ram was found lying, belonged to the appellant and that those were in his exclusive possession. Secondly, no such question was put to the appellant while recording his plea under Section 313 Cr.P.C.
16. In Harijan Megha Jesha v. State of Gujarat , and Sharad Birdhichand Sarda v. State of Maharashtra , it has been held that the circumstance which was not put to the accused while recording his plea, cannot be used against him. Therefore, the findings of the learned trial Judge to the effect that the house where the alleged crime was committed and the room from where the dead body of Ganga Ram alongwith pair of blood stained shoes were recovered belonged to the appellant is perverse and not based on any legal evidence.
17. The alleged recovery of a pair of blood stained shoes from the said room also does not connect the appellant with the crime. Firstly, no test identification parade was got conducted by the I.O. of those shoes, to prove, that those belonged to the appellant. In the recovery memo Ex. P. 30, it has been mentioned that the motbirs Mangilal and Girdhari correctly identified those shoes belonging to the appellant but the prosecution has not examined Mangilal, while PW 9 Girdhari lal has specifically stated that in his presence, shoes were not recovered from the room, where the dead body of brahmin was found lying. PW 5 Sajjan Singh, who effected the recovery of those shoes did not have personal knowledge as to whether those shoes belonged to the appellant or not. Therefore, in such circumstances, there is not an iota of evidence to establish that the blood stained pair of shoes, found lying in the said room, belonged to the appellant.
18. In Jeet Ram v. State of Raj. 1987 Cr. L.R. (Raj.) 692, one of the circumstances against the accused was that his shoes were found in the field where the offence of murder was committed. It was held that seizure of shoes could not be accepted as a piece of incriminating evidence against the accused, because in the first place, it was not satisfactorily proved that the pair of shoes found in the dhani were of the accused; secondly no prior test identification parade was conducted and thirdly it was very easy to state during trial that pair of shoes belonged to the accused and he used to wear those.
19. Moreover, as per FSL report Ex. P. 43, the blood group on those shoes as also the blood group of the blood stains on the clothes of the deceased could be ascertained. Therefore, the seizure of the shoes from the room is not at all an incriminating circumstance against the appellant.
20. The factum of absconding of the accused in itself is no circumstance to convict him for the murder, because sometimes innocent people out of their timidity or fear run away from their houses. Moreover, except PW 12 Pyar Chand, whose testimony has not been believed by the trial Judge and even by us, on other prosecution witness has stated that the appellant was found in his house or in the village on the date of the alleged occurrence or that he had absconded after the incident. Therefore, the factum of absconding of the appellant has not been proved and more over, this circumstance in itself is not sufficient to connect him with the crime.
21. In re: blood stained handle of Kassi and blood stained dhoti PW 8 Govind Singh SHO has stated that the appellant was arrested on 8.2.88 by PW 10 Mohanlal Head Constable, that on 10.2.88, the former had voluntarily given information to him under Section 27 Evidence Act vide information memo Ex. P. 41 for getting one handle of the Kassi recovered from his house and that in pursuance thereof, on 11.2.88 in the presence of motbirs Laxman Lal and Ramlal, the appellant got one handle of the Kassi recovered from a that chet situated in his house, which was blood stained and the same was seized and sealed vide recovery memo Ex, P. 26. The prosecuting has not examined motbir Ramlal. PW 3 Laxman has however proved recovery memo Ex. P. 26.
22. PW 8 Govind Singh further stated that in pursuance of the information given by the appellant vide information given by the appellant vide information memo Ex. P. 42 dt. 12.2.88, the appellant got one blood stained dhoti recovered from a small kothi situated in his house, and that the same was seized and sealed vide seizure memo Ex. P. 27 in the presence of motbirs Khem Chand and Bhanwarilal. Again Bhanwarilal has not been produced by the prosecution. On the other hand, PW 4 Khemchand has stated that the appellant got one dhoti recovered from a pitcher in his house and that the said dhoti was blood stained but in his cross examination, he has changed his statement and deposed that on the same day, the appellant had also got recovered one handle of the Kassi alongwith dhoti. A perusal of the recovery memo Ex. P. 26 unmistakably reveals that the alleged recovery of the handle of the Kassi was effected on 11.2.88 at 2.30 P.M. while the blood stained dhoti was recovered at the instance of the appellant on 15.2.88 vide seizure memo Ex. P. 27. In such circumstances, even the recoveries of Kassi and dhoti become doubtful. Apart from it, since after chemical examination, the Serologist could not identify /determine the blood group of the stains on the handle of the Kassi appellant's dhoti the sample of the blood smeared soil taken from the place of the occurrence as also the blood stains on the rope found lying near the shrub and the clothes of the deceased. Therefore, on the basis of recoveries of handle of Kassi & blood stained dhoti vide recovery memos Ex. P. 26 and Ex. P. 27, it cannot be conclusively held that the appellant had inflicted the injuries and committed the murder of Ganga Ram.
23. In Hariya and Ors. v. The State of Rajasthan 1984 RCC 268, recovery of clothes of the deceased victim at the instance of the accused were effected merely after two and a half months of the incident. The learned D.B. of this Court held that it was unable to see any logic or reason that the accused would keep those clothes hidden or concealed for such a long time and as such the recovery, of those articles were held to be of no evidentiary value. Similar are the facts of the case in hand. Therefore, the alleged recoveries of the blood stained handle of the Kassi and the blood stained dhoti at the instance of the appellant on 11th, 15th Feb., 1988 do not connect the appellant with the commission of the offence.
24. In re: marks of dragging: Informant PW 1 Pyarchand does not say that he had noticed the mark of dragging either at the house of the appellant or outside the house in the way. PW 2 Jagdish Prasad, photographer has stated that he had taken the photographs Ex. P. 6 to Ex. P. 18, but he has failed to name the village, where he had taken those photographs. In his cross examination, he has stated that the marks of dragging in photographs Ex. P. 15 to Ex. P. 17 could be that of a cart. PW 5 Sajjan Singh has stated that the drafting marks shown in site plan Ex. P. 2 were caused due to dragging a body and not by dragging a tyre. He has stated that besides the marks of dragging, he had also seen the trial of blood from the house of the appellant to the place, where the rope and pair of shoes were found lying near the shrub. However, this fact does not find mention in the memo of site plan Ex. P. 3. He also did not care to prepare the site plan from where the blood stained rope and pair of shoes were recovered near the shrub. He has stated that he was telling about the trial of blood on the basis of his memory. But all these facts do not find mention in site plan Ex. P. 2 and memo Ex. P. 3 Therefore, the statement of Sajjan Singh to the effect that he had seen the trail of blood from the house of the appellant to the place where a blood stained rope and a pair of shoes were found lying, cannot be believed. PW 11. Roopail, who is a motbir of site plan Ex. P. 2, inquest report Ex. P. 28 and the recovery memo of the blood stained rope and the shoes has specifically stated that police did not recover anything in his presence. He has also not deposed that he had seen any marks of dragging in the path way outside the house of the appellant. Thus the prosecution has not been able to prove that either there was a trail of blood from the house of the appellant to the place near the shrub or that there were marks of dragging of a dead body. Again there is no evidence that the appellant had dragged the dead body of the deceased. Therefore this circumstance also does not connect the appellant with the crime.
25. It is needless to mention that in a case based on circumstantial evidence, it is necessary for the prosecution to prove the motive of the crime, which is conspicuously missing in this case. The prosecution has unsuccessfully tried to invent a new story that the deceased Ganga Ram used to tell wrong numbers to the appellant for speculation and therefore, the latter committed his murder. But this does not find mention in the F.I.R or in the police statement of any witness. Hence motive for the crime has also not been established.
26. It will suffice to mention that the suspicion, howsoever strong it may be, cannot take place of proof and in this case the learned trial Judge has missed this basic principle of criminal jurisprudence.
27. Hence, for the aforesaid reasons, we are of the considered opinion that the learned trial Judge has not correctly discussed, analysed and evaluated the prosecution evidence and relied on inadmissible) incomplete and unreliable evidence and has committed illegality in recording the conviction of the appellant for the offences Under Sections 302 and 201 I.P.C.
28. In the premise of the above discussion, we allow this appeal, set aside the conviction and sentence of appellant Prabhu alias Prabhulal passed by the learned Addl. Sessions Judge, Chittorgarh vide his judgment dt. 11.6.90 and acquit him of the offences under Sections 302 and 201 I.P.C. The appellant Prabhu he released forthwith, if he is not required in any other case.