Rajasthan High Court - Jodhpur
Roshan Lal vs State on 21 October, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
D.B. CRIMINAL JAIL APPEAL NO.238/2010
Appellant :
Roshanlal son of Bherulal Mali, resident of Aarni Police
Station Rashmi, District Chhittorgarh.
Vs.
Respondent :
The State of Rajasthan.
Date of Judgment : 21st October, 2016
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
Mr. K.R. Bhati, for the appellant.
Mr. C.S. Ojha, PP for the State.
BY THE COURT: (Per Hon'ble Moolchandani, J.)
Assailing the judgment passed by Additional District and Session Judge (Fast Track) Chhitorgarh in Sessions Case No. 09/2008 dated 26/03/2010, by which appellant-accused has been convicted under Section 302 of IPC with life imprisonment and with a fine of Rs.5,000/- in default to pay fine further to undergo six months simple imprisonment and under Section 201 of IPC for three years rigorous imprisonment and with a fine 2 of Rs.1,000/- in default to pay fine further to undergo two months simple imprisonment, the instant appeal has been filed.
2. The contents of the FIR, which reveals the story of the prosecution does reflect as under:-
"lsok esa] Jheku Fkkusnkj lkgc] Fkkuk&jk'keh] ftyk&fprkSM+x<+ fo"k; %& dkuwuh dk;Zokgh djkus ckcrA egksn;th] fuosnu gS fd eq> izkFkhZ Hkksuhjke dh ifRu Jherh pqUuhckbZ mez&28 lky dy fnu esa djhc 12&1 cts cl LVs.M ij esjs dks [kkuk f[kykdj ?kj xbZ FkhA eSa jkstkuk ds ekfQd okil 'kke dks djhc 7-30 cts esjs ?kj vk;kA ?kj ij rkyk yxk Fkk esjs ikl pkch Fkh eSaus rkyk [kksyk vkSj lkspk fd dgha cktkj esa xbZ gksxh vk tk,xh djhc nks ?k.Vs rd ?kj ugha vkbZ rks eSaus vkSj esjs HkkbZ uUnyky vkSj jkenkl us gekjs tkfr ?kjksa esa o xkao esa ryk'k dh exj dgha irk ugha yxk vkt Hkh [ksrksa o dqvksa esa ryk'k dh blh nkSjku lqcg djhc 10 cts Mkyh ifRu uUnyky ekyh muds [kqn ds uksgjs esa [kk[kys okys ?kj esa ns[kk rks pqUuh ckbZ dh yk'k [kk[kys esa nch gqbZ ikbZ xbZ bl ij eSa Hkksuhjke ljiap HkS: yky us pqUuh dh yk'k dks ckM+s esa [kk[kys ds ?kj esa [kk[kys esa nch gqbZ ns[kh mlds xys esa [kqn dh vks<+uh ls Qkalh yxkdj fdlh us ekjdj yk'k dks Mky nh gS bryk djrk gwa dk;Zokgh dj eqyfteku dks ltk fnykosa", and on the basis of Ex.P.49, FIR has been registered under Sections 302 and 201 I.P.C. against unknown.
3. Heard both the sides, learned counsel for the accused-appellant has contended that almost all the prosecution witnesses have become hostile and nothing positive has been narrated by them despite the learned trial court has convicted and sentenced the accused- 3 appellant and the findings of learned trial court are based on conjectures, which are not at all sustainable, so the appeal of the accused-appellant may be accepted and the findings of the learned trial court may be quashed.
Per contra, learned Public Prosecutor has argued that there is no wrong in the findings of the learned trial court because the findings of the trial court are based on sound footings and prosecution has succeeded in proving its case, so the appeal of the accused-appellant may be dismissed.
4. Heard the arguments advanced and perused the records thoroughly, scrutiny and appreciation of the evidence shows that PW-4 Nand Lal, PW-5 Shankar Lal, PW-6, Uday Ram, PW-7 Bhawani Ram, PW-8 Nand Ram, PW-11 Bheru Lal, PW-12 Ramesh Chandra, PW-13 Badri Lal, PW-17 Bhuwani Ram, PW-19 Jamna Lal, PW-20 Bansi and PW-21 Bheru Lal have turned hostile.
5. PW-1 Ram Lal neighbour of Bhawani Ram (complainant) has said that Bhawani Ram had come to him in search of his wife and on query, had expressed doubt upon Roshan, so he and Nand Ram had gone to the house of Roshan Lal in search of his deceased wife and called Roshan Lal, who was asked on opening his door regarding disappearance and whereabouts of Chunnibai, but he refused her visit there, then they all came back, in 4 his cross-examination, he has also said that he had never seen Chunnibai and Roshan Lal in easy friendly companionship, and said that he was saying the same, on the basis of hear-say. He has also said that the place of detection of dead body of deceased Chunnibai i.e. "khakhla" was a premises of Bhawani Ram and Nandram, Nandram was elder brother of Bhawani Ram (complainant).
6. PW-2 Dali wife of Nanda, sister-in-law of deceased Chunnibai, who observed dead body of deceased Chunnibai in "khakhla" (husk) for the first time, because she has said that her brother-in-law, (dever) had come to him in the evening at 7:00 PM and inquired that whether his wife came to that place, on which she replied in negative, then her brother-in-law went to make telephone-call but Chunnibai could not be traced, he has further said that on next day in the morning, he went to take "khakhla" and found veil cloth's (Odhnee) margin, by which Chunnibai was lying strangulated, so she went and called Bhawani Ram and her husband. She has also said that Roshan and Chunnibai were having unhealthy companionship and Roshan was keeping her as a bride, in her cross-examination, she has narrated vitals and has said:-
5
^^;g ckr lgh gS fd eSaus dqN ugha ns[kk] lquh lquk;h ckr dg jgh gwa] [kka[kkyk ysus x;h] rc tks ns[kk Fkk og crk fn;kA pqUuh esjh lxh nsojkuh yxrh FkhA Hkokuhjke okyh ckr eSaus nl fnu ckn xkao esa dgh FkhA Hkokuhjke firk ukjk;.k okyh ckr nl fnu ckn xkao esa dghA Hkokuhjke th us esjs ls ;g uke ysus ds fy, dgk FkkA Hkokuhjke firk ukjk;.k dk uke ysus ds fy, esjs dks Hkokuhjke ¼pqUuh ds ifr½ us dgk FkkA iqfyl okyksa us pqUuh ds ejus ls rhljs fnu esjs ls iwNrkN vkdj dhA eSaus Hkokuhjke firk ukjk;.k dk uke ml fnu iqfyl dks fn, c;ku esa ugha crk;kA ;g ckr xyr gS fd pqUuh jks'ku ds lkFk [kkrh ihrh ugha gks] vkSj eSa 'kadk ls gh vkt jks'ku dk uke crk jgh gksÅ¡] pqUuh o jks'ku dks [kkrs ihrs pkj lky gks x, gSaA ;g ckr lgh gS fd pquh ejh mlds nks pkj fnu rd jks'kuyky dk uke ugha vk;kA fQj iqfyl okyksa ,oa xkao okyksa us pkj ikap fnu ckn ;g ckr dgh gks fd jks'ku dks Qalkuk gS] ;g lq>ko lgh gSA xkao okyksa o iqfyl okyksa us dgk Fkk fd jks'ku dks pqUuh ds ekeys esa Qalkuk gS^^, which is suffice to conclude that this witness is not trustworthy and was tutored to implicate innocents.
7. PW-3 Jamna is a hear-say witness and she has said that she does not know, cause of death of Chunnibai.
PW-16 Kamlesh Acharya is a photographer, who has said to take the photographs from Ex.P.15 to Ex.P.25 and their negatives are Ex.P.26 to Ex.P.44 and has also narrated such says were in air that she (deceased) was disappeared from yesterday.
8. PW-14 Satyanarayan is malkhana incharge, who has deposited the seized samples and PW- 15 Vishwajeet is police constable, who has deposited 6 samples in FSL, but in his cross-examination, this witness has also said that the samples were earlier returned with objections and PW-18 Gopaldas, S.H.O. of Police Station Rashmi is an Investigator, who has narrated the sequence of the investigation and confirming the exhibits has said that vide Ex.P.46 "chunni" was seized by which the deceased was strangulated.
9. PW-17 Bhuwani Ram, husband of the deceased has turned hostile, he has denied important recitals of Ex.P.48 Prachabayan and has also said that it is wrong that his wife was having illicit relations with Roshanlal and he was no knowledge of the same, amazingly, such an utterance makes the entire story of the prosecution baseless because the case of the prosecution is that "accused Roshanlal was having illicit relations with Chunnibai wife of complainant Bhuwani Ram and they were seen in unacceptable companionship", so disappearance of Chunnibai triggered a suspicion in the mind of the complainant Bhuwani Ram to search her in the house of Roshan, where some of the witnesses had gone to search disappeared Chunnibai, but when factum and matrix of "alleged illicit relations" between deceased Chunnibai and 7 accused Roshan is negated, then the entire story becomes mysterious and doubtful and such kind of utterance has been made by this important witness after turning hostile, which has marred genesis of the prosecution story adversely.
10. So far as, testimony of other hostile witness is concerned, PW-4 Nand Lal has only said that he had gone to the house of Roshan, in search of the deceased, but several narrations of pracha bayan have also been declined by this witness. PW-5 Shankar Lal has said that he did not hear anything like that Chunnibai and Uday Ram Chamar were having illicit companionship and he did not inform that Roshan and Chunnibai were having any illicit relations.
PW-6 Uday Ram another hostile witness is a hear-say witness and he has denied recitals of his pracha bayan Ex.P.3.
11. PW-7 Bhawani Ram S/o Narayanji has also turned hostile and he has also negated important recitals of Ex.P.4 pracha bayan and he has also said that he did not hear anything between Chunnibai and Roshan and has also said that it is wrong that after taking meal, he was sitting outside and Roshan crossed and passed from there. 8
12. PW-8 Nandram is a family member of deceased being brother-in-law (Jeth) of the deceased and he has said that Chunnibai was wife of his brother Bhuwani Ram, this witness has also become hostile and has said that on suspicion upon Roshan, disappeared Chunnibai was searched and Roshan was also asked about the whereabouts of Chunnibai but he had denied to see her. He has also denied recitals of Ex.P.5 pracha bayan. He has also said that it was wrong that "Roshan" and he were having any enmity and has also said that "they" have got a common 'well' and has also said that he used to reside at well, so was unaware about the happenings of the village.
13. PW-11 Bheru Lal has also denied recitals of Ex.P.8 pracha bayan, likewise PW-12 Ramesh Chandra has also did so. PW-13 Badri Lal has also denied several recitals of Ex.P.10 pracha bayan.
14. PW-19 Jamna Lal has also turned hostile and this recovery witness has denied recovery of article 2 "bushirt" before him. He has also said that article 3 "khakhla" was taken away by police after second or third day of post mortem. He has also said that he did not remember as to when he put his signatures on article 1 seizure of "lungri".
9
15. PW-20 Banshi has also said that article 2 Bushirt was not taken before him. PW-21 Bheru Lal has also said that some of the exhibits were having his signatures, but he has also said that police did not conduct any proceedings before him and in his cross- examination after turning hostile, he has said that his signatures were taken on "blank-papers" and his statements were not recorded by the police. He too has denied utterances of his pracha bayan Ex.P.61. He has also narrated an important fact that "Uday Ram was taken into custody by the police, on suspicion of his involvement in murder of Chunnibai".
16. Testimony of PW-21 Bheru Lal shows that one Uday Ram was also taken into custody on suspicion of his involvement in the killing of Chunnibai, likewise PW-5 Shankar Lal has also said that he did not hear anything like that Chunnibai was having illicit companionship with Uday Ram Chamar.
17. So, the story of the prosecution becomes doubtful and beleaguard because such an evidence has also emerged that Chunnibai was having illicit relations with some Uday Ram Chamar, who was also taken into custody, but surprisingly husband of the deceased Chunnibai, PW-17 Bhuwani Ram has capsized the story of the 10 prosecution by saying that his deceased wife Chunnibai was not having illicit relations with Roshan Lal and such a fact was not there in his knowledge.
PW-9 Dr. Rakesh Moondra has conducted autopsy of the corpse, admitting the same, he has opined that cause of her death was asphyxia due to strangulation and he has confirmed Ex.P.7, post mortem report, likewise PW-10 Dr. Kailash has also confirmed his signatures on Ex.P.7 he too has narrated identical, being another member of Medical Board.
18. It is significant that the dead body of the deceased Chunnibai was detected and was also been found in the premises of her husband Bhuwani Ram, where "khakhla" was kept for use but distant living Roshan Lal was interrogated regarding disappearance, and he was found in his residence and denied having seen her which also makes the story doubtful.
19. The evidence enunciated above discloses, that fidelity of the deceased Chunnibai was doubtful and apart from Roshan, her unhealthy relations were also there with some other persons and on such a suspicion, Uday Ram was detained but PW-17 Bhuwani Ram husband of the deceased has made and turned the story of the prosecution 11 totally unbelievable by saying that his deceased wife Chunnibai was not having any illicit relations with Roshan nor he was in knowledge of such alleged illicit relationship.
20. Appraisal and re-assessment of afore- discussed evidence, is amply clear to establish that the prosecution has failed to produce "positive" evidence against the accused-appellant, in plethora of judgments essentials of circumstantial evidence have been enunciated.
21. Hon'ble Apex Court while deciding Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622 has laid down the conditions of circumstantial evidence on which conviction could be made in view of Section 3 of Evidence Act which postulates as under :-
"The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:
(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, 12
(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."
22. The principle of circumstantial evidence has been reiterated by the Hon'ble Supreme Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir,(2002) 8 SCC 45, wherein the Hon'ble Supreme Court quoted number of judgments and held as under:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC
560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the 13 conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
23. Hon'ble Apex Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, has observed thus:
(SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
24. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, the Hon'ble Supreme Court held as under:
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 14 by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
25. The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205,Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions and it has been consistently laid down by the Courts that where a case rest squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
26. We, are of the considered view that in a case of circumstantial evidence, Court has to examine the entire evidence and has to ensure that only inference that can be drawn from the evidence is guilt of the accused, but in the case under hand, it does not reflect alike because prosecution has not adduced "positive evidence" and has also failed to connect the accused with the crime.
Majority of the witnesses of the prosecution have turned hostile, genesis of the alleged 15 illicit relations, which was the pivotal point of the prosecution, has also turned turtle, on the assertion of Bhuwani Ram, husband of the deceased "Chunnibai" by saying that her deceased wife Chunnibai was not "nurturing illicit relations" with Roshan nor he was in knowledge of any such relationship.
27. So, in the facts and circumstances of the case, we, are satisfied and complacent that the conviction of the accused-appellant cannot be sustained and the appeal deserves to be allowed, extending the benefit of doubt to the accused-appellant to which the appellant-accused appears to be entitled to.
Consequently, the conviction and sentence of the accused-appellant under Sections 302 and 201 of I.P.C. is set aside and the appeal is allowed. The appellant is in jail, so it is ordained to set him at liberty forthwith, unless his custody is required in any other case.
Considering the provisions of Section 437-A of Cr.P.C., the accused-appellant is directed to furnish personal bond in the sum of Rs.30,000 with a surety bond in the like amount before the learned trial Court, which shall remain effective for a period of six months to the fact that in the event of filing of Special Leave Petition against the judgment for grant of leave, the 16 appellant, on the receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
[ G.R. MOOLCHANDANI], J. [GOPAL KRISHAN VYAS], J. babulal