Rajasthan High Court - Jodhpur
Gopalsingh vs State on 7 September, 2017
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 180 / 2016
Gopal Singh S/o Shri Nand Singh, By caste Rajput, aged 55 years,
Resident of Ukhaliya, Shambhugarh, Bhilwara, District Bhilwara.
[Presently lodged in Central Jail, Udaipur]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Anil Upadhyay, Amicus Curiae
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
Date of Judgment: 7th September, 2017 The instant criminal appeal has been filed by the appellant- Gopal Singh under Section 374 (2) Cr.P.C. against the judgment dated 27th of November 2015 passed by learned Sessions Judge, Chittorgarh in Session Case No.200/2011, whereby the trial court convicted the accused appellant for offence under Sections 302, 324 and 450 of IPC and passed following sentence: -
302 of IPC: Imprisonment for life along with fine of Rs.10,000/-. In default of payment of fine, to further undergo three months‟ rigorous imprisonment.
(2 of 20) [CRLA-180/2016] 324 of IPC: One year‟s rigorous imprisonment along with fine of Rs.5000/-. In default of payment of fine, to further undergo one month‟s rigorous imprisonment.
450 of IPC: Three years‟ rigorous imprisonment along with fine of Rs.5000/-. In default of payment of fine, to further undergo two months‟ rigorous imprisonment.
Initially the instant criminal appeal was filed by Sh. NS. Purohit, but he did not appear on number of occasions, therefore, Mr. Anil Upadhyay, was appointed as amicus curiae to conduct this appeal.
As per facts of the case, upon a complaint (Ex.P/1) submitted by PW.8 Prem Singh on 28.08.2011, F.I.R. No.184/2011 was registered against the appellant Gopal Singh at Police Station- Gangrar, District Chittorgarh for committing offences under Sections 302 and 323 of IPC. In the complaint (Ex.P/1) following allegations were levelled by the complainant: -
"lo s k eas Jheku Fkkuknkj lkgc Fkkuk xxa jkj fo"k; %& dkuuw h dkjokbZ djus grs qA izkFkhZ %& iesz flga S/o ekrs h flga jktirw fuoklh xt s j kA egkns ; th] fuons u gS fd ejs h "kknh m[kyh;k eas ekrs h flga dh yMd + h dSyk"k doa j ds lkFk gqbZ Fkh ejs s llqjky eas ejs s llqj ds ,d gh yMh+ gkd s j vkSj dkbs Z yMd + k yMd+ h ugha gS ejs s llqjth dk LoxZokl djhc 30 o'kZ ijq o gks s k gS ejs s lklqth prj doa j ds lljq ky ds fi;j >kra yk eas m.p.eas Hkh p kd prj doa j ds vkSj dkbs Z HkkbZ o cgu ufg gkus s ls o tehu Hkh muds uke (3 of 20) [CRLA-180/2016] i j gkd s j lljq ky m[kyh;k eas muds tBs uUn flga dk yMd + k xkis ky flga prj doa j ds lkFk vk;s fnu yMk+ bZ >xMk+ djrk jgrk Fkk >kra yk okyh m[kyh;k okyh tehu ejs s uke ijdjkoks bZl izl s ku gkd s j ejs s lklt q h djhc 10 o'kZ ls ejs s ikl jgs js gSA vkt lcq g 9 cts gehjx<+ dke ls pyk x;kA 5 cts djhc ejs s ikl dku flga S/o nsoh flga dk Qkus vk;k fd rqekjh lklqth dks xkis ky flga S/o uUn flga jktirw fuoklh m[kyh;k us vkt fnukd a 4-30 cts djhc xjnu ij dYq gkMh+ ekj dj ekj fn;k o rqekjh vkSjr ds Hkh dqYgkMh+ dh ekjh oks Hkh ?kk;y gks xbZ thudks bZykt grs q jokuk fd;k gS o dku flga fuHkZ; flga Hkkjr flga ykHkqyky ftrey tkV ryk"k grs q fink fd;k gkFk ufga vk;k eSa ;s ckr lqudj n[s kk rks xkis ky flga us dqYgkMh+ ls ejs s lklq th fd gR;k fd ejs h lklqth fd yk"k edku eas iMh+ gS xkis ky flga ejs s lkltq h dh tehu m[kyh;k o >kra yk okyh tehu gMi+ uk pkgrk gS thl le; ejs s lklqth us dkVs Z eas dl s dj j[kk gS bl dkj.k ejs s lklt q h dh gR;k dh gSA fjikVs Z i"s k djrk gaw dkjokbZ djkoAs 28@8@2011 izkfFkd Z izes flga S/o ekrs h flga th jktirw xt s j k"
Upon the aforesaid complaint, formal F.I.R. No.184/2011 was registered by the SHO concerned of Police Station Gangrar, District Chittorgarh on 28.08.2011 at 09.30 PM.
After registration of the FIR, the SHO, Police Station Gangrar, went on the spot and prepared site plan Ex.P/3 and also recorded the details of place of occurrence, where dead body of the deceased was lying. „Panchnama‟ (Ex.P/2) of the dead body of Smt. Chatar Kanwar was prepared at 06.00 PM in the presence of five witnesses. All formalities of recovery from the place of occurrence were performed. The stone and blood stained cot and other material were taken in possession vide Ex.P/4 in the presence of two witnesses, namely, Bhanwar Singh and Baluram.
(4 of 20) [CRLA-180/2016] The dead body of deceased, Smt. Chatar Kanwar was taken to hospital for postmortem, where postmortem of the dead body of deceased Smt. Chatar Kanwar was conducted by the Medical Board at Primary Health Centre, Gangrar and postmortem report (Ex.P/12) was prepared at 09.00 AM on 29.08.2011.
As per postmortem report, the cause of death of Smt. Chatar Kanwar was "cut throat injury" on the right side of neck and hemorrhage shock. After postmortem, the dead body of the deceased was handed over to Prem Singh S/o Moti Singh (first informant and son-in-law of deceased) for cremation vide Ex.P/5 at 10.00 AM on 29.08.2011. Blood stained clothes of deceased, "Lungdi", "Kanchli" were taken in possession vide Ex.P/6. Accused appellant was arrested vide arrest memo (Ex.P/9) and upon information given by him under Section 27 of the Evidence Act, axe, the weapon of offence was recovered vide recovery memo (Ex.P/16) on 01.09.2011 at 12.15 AM in the presence of two witnesses, namely, Vikram Singh and Bhanwar Singh. The articles recovered were sent for chemical examination vide Ex.P/19 on 20.09.2011 to the FSL, and in turn, FSL report (Ex.P/20) was received from FSL, in which human blood of "B" group was found upon all the articles sent for chemical examination.
During investigation, Smt. Kamlesh Kanwar (daughter of the deceased) was also medically examined by the medical jurist of Govt. Hospital, Bhilwara and report (Ex.P/34) was obtained by the investigating officer for investigation. The investigating officer, after completing the investigation, filed a charge sheet against the accused appellant Gopal Singh under Section 302, 323 and 450 (5 of 20) [CRLA-180/2016] IPC in the court of learned Judicial Magistrate, Gangrar, District Chittorgarh from where the case was committed to the court of Sessions Judge, Chittorgarh for trial.
The learned Sessions Judge, Chittorgarh after providing an opportunity of hearing to the parties framed charges against him for commission of offences under Sections 302, 324 and 450 IPC, which accused appellant denied and claimed trial.
In support of its case, the prosecution examined as many as 23 witnesses and 37 documents were exhibited in the trial. After recording evidence of prosecution, statements of the accused appellant were recorded under Section 313 Cr.P.C., in which appellant denied all the allegations made against him by the prosecution witnesses and said that it is a case of false implication. In defence 5 documents were exhibited in the trial.
After recording evidence of the parties, the learned trial court heard final arguments and decided the case vide impugned judgment dated 27.11.2015 and held the accused appellant guilty for offence under Sections 302, 324 and 450 IPC and passed sentence, mentioned above.
In this appeal, the appellant is challenging the validity of judgment dated 27.11.2015 on various grounds.
Learned amicus curiae vehemently submitted that although names of 27 witnesses were included in the list of prosecution witnesses, however, 23 witnesses were examined from the prosecution side, out of which most of the witnesses viz. PW.2- Mithu Singh, PW.4 Manohar Singh, PW.5 Yogendra, PW.6 Kan Singh, PW.8 Naval Singh, PW.11 Ramesh, PW.12 Nirbhay Singh, (6 of 20) [CRLA-180/2016] PW.13 Bharat Singh, PW.14 Jeetmal, and PW.15 Vikram Singh, turned hostile and did not support the prosecution case. However, the learned trial court while relying upon the testimony of planted eyewitness i.e. PW.10- Smt. Kailash Kanwar, held the accused appellant guilty for committing offence of murder of Smt. Chatar Kanwar. Learned amicus curiae argued that the finding of guilt arrived at by the learned trial court suffers from patent illegality, because the entire prosecution case is based upon planted eyewitness PW.10- Smt. Kailash Kanwar, who was not even present where occurrence took place.
It is further argued that there is no evidence of motive so as to connect the accused appellant with the crime, more so the appellant is adopted son of the deceased and he was living with Smt. Chatar Kanwar being her adopted son from last 20 years, and also maintained her family after death of his father being adopted son. It is pointed out by the learned amicus curiae that complainant, Prem Singh, whose first wife had expired, got married with disabled daughter of the deceased PW.10 Smt. Kailash Kanwar and sold the property of late Smt. Chatar Kanwar in the year 2004, which is evident from sale-deed (Ex.D/3), it is evident from the sale-deed that Prem Singh put his signatures as witness on the said registry. The entire prosecution case is based upon concocted story cooked up by Prem Singh (complainant) and planted witness Smt. Kailash Kanwar (PW.10), daughter of the deceased and this fact is well proved from the document on record.
(7 of 20) [CRLA-180/2016] Learned amicus curiae invited our attention towards injury report (Ex.P/34) of Smt. Kailash Kanwar (PW.10) and submit that occurrence took place at Village Ukhaliya but as per injury report (Ex.P/34, the medical examination was conducted by the medical jurist of M.G. Hospital, Bhilwara on 28.08.2011 at 09.30 AM in the presence of SHO, Police Station Gangrar, whereas postmortem of the deceased Smt. Chatar Kanwar (mother of Smt. Kailash Kanwar) was conducted by the Medical Board at Primary Health Centre, Gangrar, on 29.08.2011 at 09.00 PM. Learned amicus curiae further submits that if Smt. Kailash Kanwar was present at the place of occurrence, then why she was not medically examined by the doctors of Primary Health Centre, Gangrar itself. It is beyond imagination that daughter will leave her mother soon after the incident and went to other place for her treatment. Therefore, the whole prosecution story is doubtful and based upon planted and tutored witness PW.10, Smt. Kailash Kanwar.
Learned amicus curiae further submitted that admittedly clothes of the appellant were not taken in possession for the purpose of investigation. The clothes of deceased and so-called axe recovered during investigation were sent for chemical examination to the FSL. Therefore, it is admitted fact of the case that clothes of accused appellant were not taken in possession for the purpose of ascertaining his involvement in the commission of crime. Thus, it is obvious that finding of learned trial court is based upon doubtful evidence. According to amicus curiae there are two important aspects, which were taken into account by the learned trial court so as to hold accused appellant guilty, viz. (1) (8 of 20) [CRLA-180/2016] there is evidence of injured eyewitness, Smt. Kailash Kanwar (PW.10) and (2) recovery of axe at the instance of accused appellant, Gopal Singh, but both these facts are not proved beyond reasonable doubt, therefore, the judgment impugned deserves to be quashed and set aside. It is also pointed out that most of the witnesses, viz. PW.2- Mithu Singh, PW.4 Manohar Singh, PW.5 Yogendra, PW.6 Kan Singh, PW.8 Naval Singh, PW.11 Ramesh, PW.12 Nirbhay Singh, PW.13 Bharat Singh, PW.14 Jeetmal, and PW.15 Vikram Singh turned hostile and did not support the prosecution case, but the learned trial court while ignoring all above facts erroneously held the accused appellant guilty for offence under Sections 302, 324 and 450 of IPC, inspite of the fact that entire case is based upon concocted evidence. The learned amicus curiae invited our attention towards following judgment and submit that prosecution story is seriously doubtful, therefore, the instant appeal may kindly be allowed and the appellant be acquitted. In support of his arguments learned counsel for the appellant relied upon following judgments:
1. Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore reported in (2017) 1 SCC (Cri.) 99
2. Raj Kumar Singh @ Raju @ Batya reported in (2013) 5 SCC 722
3. Jose @ Pappachan Vs. The Sub-Inspector of Police, Koyilandy & Ors. reported in (2016) 10 SCC 519.
Per contra, learned Public Prosecutor vehemently argued that there is no strength in the arguments of the learned counsel (9 of 20) [CRLA-180/2016] for the appellant and the prosecution has failed to prove its case beyond reasonable doubt. While inviting our attention towards statements of Smt. Kailash Kanwar (PW.10) submits that Smt. Kailash Kanwar (PW.10) was married with PW.1- Prem Singh and as per evidence the accused appellant was adopted by the deceased Smt. Chatar Kanwar and to grab the property of the deceased, the accused appellant Gopal Singh caused injury to the deceased upon her neck by axe, which resulted into her death. Therefore, it cannot be said that there was no motive for committing murder of Smt. Chatar Kanwar because a dispute with regard to land in question was going on with the accused appellant, Gopal Singh.
Learned Public Prosecutor further argued that there is no question to disbelieve the testimony of PW.1- Prem Singh and PW.10- Smt. Kailash Kanwar, though they are son-in-law and daughter of the deceased, because they come out with the truth in their statements, therefore, the learned trial court has relied upon the testimony of these witnesses so as to hold accused appellant guilty. Learned Public Prosecutor vehemently argued that the axe was recovered at the instance of accused appellant, which is proved by the investigating officer, therefore, the trial court while considering the entire evidence held the accused appellant guilty for offence under Sections 302, 324 and 450 of IPC. It is thus prayed that this appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have examined the entire evidence of the case. Admittedly, most of the witnesses turned hostile and did not support the prosecution case.
(10 of 20) [CRLA-180/2016] The learned trial court has relied upon the testimony of PW.1- Prem Singh (author of FIR and son-in-law of the deceased), so also, testimony of Smt. Kailash Kanwar (PW.10), daughter of the deceased who was said to be present when occurrence took place. It emerges from the evidence that the accused appellant was adopted by deceased Smt. Chatar Kanwar and he was serving the deceased as well as her daughter PW.10 Smt. Kailash Kanwar, who is disabled. Marriage of Smt. Kailash Kanwar was solemnized with Prem Singh (PW.1) on 06.06.2003 at the time of marriage an affidavit (Ex.D/4) was written by PW.1 Prem Singh, which discloses the fact that he was already married and in the statements of PW.1 Prem Singh, there is no dispute with regard to the fact that Gopal Singh (appellant) is adopted son of deceased Smt. Chatar Kanwar.
Upon perusal of finding of learned trial court, it is obvious that the trial court mostly relied upon the testimony of Smt. Kailash Kanwar (PW.10) who is said to be injured eyewitness of the incident, so also, relied upon the testimony of PW.1- Prem Singh and recovery of weapon on upon information given by accused appellant. Now question arose, whether the prosecution has proved the fact beyond doubt that at the time of incident, Smt. Kailash Kanwar (PW.10) daughter of the deceased was present at the place of occurrence. Upon perusal of statements of Smt. Kailash Kanwar, it is revealed that specific allegation for inflicting injury by axe was levelled by her against accused appellant, Gopal Singh, to her mother and one injury to her, in this regard it has been stated by this witness that two injuries (11 of 20) [CRLA-180/2016] were caused to her mother by axe and one injury was inflicted her upon right ear by Gopal Singh, and due tos aid injury, she became unconscious for two days and hospitalized at Govt. Hospital, Bhilwara, but there is no evidence for unconsciousness of this witness on record.
Admittedly, the incident took place at Village Jantla, Tehsil Gangrar and the witness PW.1- Prem Singh specifically stated in his statements before the court that incident took place in the afternoon in the house of the deceased, when he was present at the place of occurrence. But in the written complaint, it is stated by him that in the morning at 9‟O Clock, he received a phone call from one Kan Singh that Gopal Singh has murdered his mother-in- law, and upon receiving such information, a written complaint was submitted by him. It emerges from the above facts that statements of PW.1 cannot be relied because in the court statement, he has narrated altogether different story, from the facts disclosed in the complaint. In the FIR it is specifically stated by him that fact of causing death of Smt. Chatar Kanwar was informed by one Kan Singh S/o Devi Singh, whereas in the court statement no such fact is disclosed. The other witnesses viz. PW.2- Mithu Singh, PW.4 Manohar Singh, PW.5 Yogendra, PW.6 Kan Singh, PW.8 Naval Singh, PW.11 Ramesh, PW.12 Nirbhay Singh, PW.13 Bharat Singh, PW.14 Jeetmal, and PW.15 Vikram Singh, turned hostile and did not support the prosecution case.
We have examined the testimony of PW.10- Smt. Kailash Kanwar so as to accept the argument of learned Public Prosecutor that prosecution has proved its case beyond reasonable doubt that (12 of 20) [CRLA-180/2016] this witness was present at the time of incident.
The witness PW.10- Smt. Kailash Kanwar, in her statements stated before the Court that she is eyewitness of the incident because in her presence two injuries were caused by Gopal Singh to Smt. Chatar Kanar and upon hue and cry being raised, Gopal Singh inflicted injury upon my left ear and due to said injury became unconscious. It is very strange that there is no evidence on record as to whether Smt. Kailash Kanwar (PW.10) was admitted in the Govt. Hospital or remained unconscious for two three days. We have also perused the injury report (Ex.P/34), in which only one simple injury upon the body of Smt. Kailash Kanwar has been recorded so also it is no where mentioned that injured was serious or unconscious and admitted in the hospital. The witness PW.10, Smt. Kailash Kanwar, gave following statement, which reads as under: -
"---- eSa eq[; }kj ejs k cPpk le>dj [kky s k rks xkis ky flga Fkk rFkk ejs s ekrkth dks xkyh nsus yx x;k Fkk vkSj ejs h ekrk dks dgk fd tehu ejs s uke ij djok nkAs fQj ejs h ekrk us euk dj fn;kA eaS ogha [kMh+ Fkh xkis ky flga vkSj ejs h ekrk vkil eas >xMAs+ xkis ky flga ds gkFk eas dqYgkMh+ Fkh ftlls ejs h ekrk prjdoa j ds xnZu ij ekjhA dqYgkMh+ ls nks pkVs s ekjh FkhA eaS fpYykbZA ejs s Hkh dqYgkMh+ ls ck;s dku ds uhps xnZ ij ekjh xkis ky flga us ekjh FkhA ftlls eSa cgs ks"k gks xbZ FkhA fQj eq>s /;ku ugha jgkA nks rhu fnu ckn eq>s gk"s k vk;k FkkA tc eq>s gk"s k vk;k Fkk rc eSa vLirky HkhyokMk+ eas FkhA ejs h ekrk ds ckjs eas iN w k rks crk;k fd dqYgkMh+ dh ekjh ftlls og ej xbZ gSA"
Upon perusal of aforesaid facts disclosed on oath by PW.10 Smt. Kailash Kanwar, it is obvious that as per her version that she remain hospitalized for 2-3 days and during this period she was unconscious and remained in Bhilwara Hospital, but there is no (13 of 20) [CRLA-180/2016] evidence on record to prove above fact, more so, the injury report (Ex.P/34) was prepared after examination by the medical jurist at 09.30 PM on 28.08.2011 in the presence of SHO, Police Station Gangrar, but medical jurist did not appear before the court to prove above fact and his name was included in the list of prosecution witnesses at the time of filing charge sheet.
The land, which was in dispute, was admittedly sold by deceased vide Ex.D/3 (sale-deed) on 22.11.2004 much prior to the occurrence, in which Prem Singh (PW.1) son-in-law of the deceased, himself was one of the witness but this witness in his cross-examination stated that, ";g lgh gS fd prj ckbZ us Åd a kjyky yky /kkdM+ dks >kryk xkoa dh tehu dh jftLVªh djok;h FkhA ;g dguk xyr gS fd ml s jk eSa gh gAaw ".
jftLVªh eas eSa xokg jgk gAaw izes flga firk ekrs h flga fuoklh xt We have perused the sale-deed (Ex.D/3), in which Prem Singh S/o Moti Singh, resident of Garja, has put his signatures as witness. In view of the fact that testimony of PW.1- Prem Singh (author of FIR) is seriously doubtful and far away from the truth, therefore, his statements cannot be relied upon so as to accept the finding of guilt arrived by the learned trial court so as to convict the accused appellant for the alleged offence of murder because there is no corroboration of his statement.
So far as recovery of axe vide Ex.P/16 is concerned, we have perused the statements of two Motbir witnesses viz. PW.7- Bherulal and PW.15- Vikram Singh. PW.7 Bherulal, nowhere stated in his statement that axe was recovered in his presence and PW.15- Vikram Singh, turned hostile and said that no recovery of axe was made in his presence. It is admitted case of the (14 of 20) [CRLA-180/2016] prosecution that no clothes of accused appellant were recovered, nor taken in possession and sent for chemical examination.
Upon consideration of evidence of recovery of axe, we are of the opinion that prosecution has failed to prove the recovery of axe at the instance of accused because both the witness of recovery, turned hostile and another witness PW.17, Badri Singh, specifically stated that axe was taken by the police from bushes and that was not recovered at the instance of the accused appellant. The following statement is given by PW.17, which reads as under: -
"lu~ 2011 dh ckr gAS eq>s Qkus vk;k ftl ij eaS gehjx<+ x;k FkkA gkLihVy igp aq k tgka prjdoa j dh yk"k iMh+ gqbZ Fkh xkis ky dks idMk+ FkkA gehjx<+ ls xkMkSfy;k ds ;gka ls dqYgkMh+ yh FkhA dqYgkMh+ >kfM;kas eas feyh FkhA ftldks iqfyl okys ys x;s FkAs prjdoa j dh yk"k dks ikLs VekVZe djds geas lkSia nhA yk"k lqiqnZxh inz "kZ ih&5 gS rFkk [kuw vkynw k izn"kZ ih&6 gS ftl ij Øe"k% bZ ls ,Q ejs s gLrk{kj gSA "
Upon consideration of entire evidence, we are of the opinion that prosecution has miserably failed to prove recovery of axe at the instance of accused appellant, therefore, entire prosecution case for recovery of axe become doubtful.
The learned trial court heavily relied upon testimony of PW.10- Smt. Kailash Kanwar, daughter of the deceased, who was said to be eyewitness of the incident. Upon assessment of entire statement coupled with the fact that she was medically examined at Govt. Hospital, Bhilwara, at 09.30 PM on 28.08.2011 and incident took place at Gangrar, we are of the option that presence of Smt. Kailash Kanwar at the place of occurrence is seriously doubtful because the said witness has specifically stated in her (15 of 20) [CRLA-180/2016] statements that injury was inflicted by accused upon her left ear, near the neck and thereafter she became unconscious and admitted to Govt. Hospital, Bhilwara but there is no evidence on record to prove the fact that who has taken her at Bhilwara Hospital and due to said injury she became unconscious and admitted in the hospital, where she remained hospitalized for 2-3 days. It emerges from the entire evidence that none of the witnesses have supported the prosecution case nor proved the presence of Smt. Kailash Kanwar (PW.10) at the place of occurrence, therefore, entire prosecution case is seriously doubtful. In view of above discussion, we have no hesitation to hold that PW.10, Smt. Kailash Kanwar is planted witness because her presence at the place of occurrence has not been proved by the prosecution beyond all shadows of reasonable doubt.
The Hon‟ble Apex Court in the case of Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore reported in (2017) 1 SCC (Cri.) 99, while adjudication the ratio decendie in the case of in Sharad Birdhichand Vs. Sarda, reported in AIR 1984 SC 1622, made following adjudication was made by the Hon‟ble Apex Court, which reads as infra:
"26. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra. The relevant excerpts from para 153 of the decision is assuredly apposite: -
(16 of 20) [CRLA-180/2016] (2) 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;
(3) The circumstances should be of a conclusive nature and tendency;
* * * (5) 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"
In the case of Raj Kumar Singh @ Raju @ Batya reported in (2013) 5 SCC 722, the Hon‟ble Apex Court while discussing earlier judgments rendered by Apex Court, held as infra:
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and (17 of 20) [CRLA-180/2016] credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. ......
2 2. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence".
x xx
25. In M.G. Agarwal v. State of Maharashtra MANU/SC/0117/1962 : AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.
26. Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under:
"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two (18 of 20) [CRLA-180/2016] possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
x xx
47. In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the Appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the Appellant are set aside. The Appellant be released forthwith unless wanted in some other case."
In the case of Jose @ Pappachan (supra), the Hon‟ble Apex Court held as infra:
"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one (19 of 20) [CRLA-180/2016] pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"
In the aforesaid judgments, the Hon‟ble Apex Court held that it is the duty of the prosecution to prove its case beyond reasonable doubt, but here in this case, most of the witnesses of the prosecution turned hostile and presence of Smt. Kailash Kanwar at the place of occurrence has not been proved beyond all reasonable doubt. The testimony of PW.1- Prem Singh cannot be relied upon for his contradictory statements and recovery of axe has not been proved beyond reasonable doubt, therefore, we are of the opinion that the finding of learned trial court for conviction of the accused appellant, Gopal Singh, is not based upon reliable or trustworthy evidence and it is a case in which prosecution has failed to prove its case beyond reasonable doubt.
Consequently, this criminal appeal filed by the appellant is hereby allowed, the impugned judgment dated 27.11.2015 passed by learned Sessions Judge, Chittorgarh in Session Case No.200/2011 convicting the appellant for offence under Sections 302, 324 and 450 of IPC, is hereby quashed and set aside while giving him benefit of doubt. The appellant is, accordingly, acquitted from the charges levelled against him. The appellant is in custody, he may be released forthwith if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in (20 of 20) [CRLA-180/2016] the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-