Jagdish vs State on 17 August, 2016

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Rajasthan High Court - Jodhpur

Jagdish vs State on 17 August, 2016

This cr. appeal is directed against the judgment dated 5.9.2012 whereby the learned Addl. Sessions Judge NO.2, Chittorgarh camp Begun convicted the accused appellant for offence under Section 302 IPC and sentenced for life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one month additional simple imprisonment.

On a written complaint filed by Bhura Lal, brother of the deceased Nana Lal (Ex.P/1), FIR no.220/2009 was registered against the accused appellant at Police Station Begun, District Chittorgarh. In the complaint, 2 the complainant Bhura Lal alleged that today in the early morning at 4.30 am his younger brother Nana Lal s/o Mangi Lal went for easing out. After some time, Narayan S/o Parthu came at his house and informed that your brother Nana Lal is lying in the way and injuries are sustained upon his head and hand.

The complainant Bhur Lal alongwith Dal Chand, immediately went on spot where Nana Lal was lying in the serious condition having injury upon his head and hand. In the FIR it is alleged that my elder brother Jagdish accused appellant earlier assaulted the deceased brother Nana Lal, therefore, enmity is going on in between them. The complainant made specific allegation that my brother Jagdish attacked upon him with intention to cause death alongwith his wife and this incident was seen by the villagers. The complainant Bhura Lal and Dal Chand brought the injured Nana Lal to hospital at Begun. The S.H.O. Police Station registered the FIR no.220/2009 on 30.7.2009 under Section 307 IPC which is on record as Ex.P/13 and commenced investigation.

As per prosecution case due to seriousness of injuries the injured Nana Lal was referred to the Government Hospital, Kota where deceased Nana Lal 3 was admitted in the emergency ward which is evident from admission card Ex.P/16 in which head injury is mentioned. The head of the deceased Nana Lal was operated but after four days during treatment Nana Lal died on 3.8.2009, the post mortem of his body was conducted in the hospital by the medical board and report Ex.P/17 was prepared on 3.8.2009 and the medical board gave its opinion that cause of death is comma as a result of anti mortem head injury, the injury found upon head was sufficient to cause death. In the investigation site plan was prepared and blood stained Baniyan of the deceased and blood stained soil as well as the controlled soiled was also taken in the possession vide Ex.P/2, and Ex.P/3 respectively. The accused appellant was arrested vide Ex.P/18 on 4.8.2009 at 5.00 pm in front of two persons Shyam lal and Hajari Lal. During investigation upon an information one wooden stick (upla) was recovered on 5.8.2009 vide Ex.P/5 in presence of two persons Dal Chand and Bhura Lal. At the instance of accused appellant the place of occurrence was also verified vide Ex.P/6. The site plan (Ex.P/7) was prepared on 30.7.2009 itself by the investigating officer and after arrest of the accused appellant on 4.8.2009 at 5.30 4 pm, the shirt of the accused appellant was taken in possession vide Ex.P/8 in which according to the prosecution case, there was some impression of blood. All the seized articles were sent to the FSL for examination and in return the FSL report (Ex.P/28) dated 28.8.2009 was received in which upon all articles blood was found but blood group upon all the articles was not determined. The body of the deceased was handed over to the family members. Thereafter, on completion of investigation charge-sheet was filed against the accused appellant in the court of Addl. Chief Judicial Magistrate, Begun, District Chittorgarh under Section 302 IPC from where the case was committed to the court of Addl. District & Sessions Judge No.2, Chittorgarh camp Begun for trial.

The learned trial court after providing an opportunity of hearing, framed charge under Section 302 IPC against the accused appellant in Sessions Case No.10/2009 and granted an opportunity to the prosecution to lead evidence to prove the allegation. The prosecution produced 19 witnesses in support of prosecution case.

After recording ocular and documentary evidence, the statement of accused appellant were recorded 5 under Section 313 Cr.P.C. in which accused denied all the allegation made by the prosecution witnesses and said that he has been falsely implicated in this case, no offence is committed by him. In spite of granting an opportunity to lead evidence in defence, no ocular and documentary evidence was produced by the accused appellant in trial.

The learned trial court after recording evidence finally heard the arguments and convicted the accused appellant for offence under Section 302 IPC vide judgment dated 5.9.2012 and passed the aforesaid sentences. In this appeal, the accused appellant is challenging the validity of the said judgment.

The learned counsel for the accused appellant raised so many grounds to challenge the finding of the learned trial court:

(A) According to the learned counsel for the appellant there is no eye witness of the incident to prove the allegation against the accused appellant, the FIR (Ex./P/1) itself loudly speaks that FIR was filed by the real brother of deceased upon an information given by one Narayan and upon perusal of the Ex.P/1 it will reveal that no allegation was levelled by him nor any specific information was given by him to complainant 6 with regard to involvement of the accused appellant Jagdish, therefore, the finding of the learned trial court to convict the accused are not sustainable in law.

B. Learned counsel for the appellant submits that only on the basis of apprehension the complainant Bhura Lal filed written complaint upon which named FIR was registered against the appellant. According to the prosecution case, the alleged incident took place in the morning at 4.30 am on 30.7.2009 at that time, due to darkness how it is not possible for any person to see the face of any person in absence of light. In the statement of Narayan who gave information to Bhura lal he has completely improved his version because whatever facts narrated by the witness Narayan (PW--

2) in his information statement were not disclosed when information was given by him in the complainant. In the cross-examination, PW--2 Narayan specifically stated that no injuries were caused in front of him nor he saw the accused appellant to inflict any injury to the deceased. Further, it is stated by him that when I reached on spot, I saw that accused appellant was already ran away from the place of occurrence and have not seen the face of the person concerned, therefore in absence of any reliable evidence, the 7 learned trial court committed grave error to hold accused appellant guilty for offence under Section 302 IPC.

C. With regard to recovery of stick (Upala) it is submitted that none of the person saw stick in the hand of accused appellant on spot. The witness PW--2 Narayan on the one hand said in examination-in-chief that Jagdish accused appellant inflicted injury by stick to the deceased Nana Lal but in cross-examination he said that he has not seen accused appellant to inflict the injury to the deceased. It is also submitted that in the statement of PW--2 Narayan it is nowhere stated that who were present in person on spot to corroborate the allegation against the appellant. D. PW--4 Bali wife of the deceased Nana Lal was not present at the place of occurrence when incident took place but said witness specifically stated in her statement that in the morning at 4.30 am my husband went out of house for toilet, at that time, Jagdish was standing there with stick and he chased my husband. According to the witness Bali she was also informed by Narayan that Jagdish has inflicted injury upon the head of Nana lal but Nana Lal did not disclose this fact when 8 information was given by him to the wife of the deceased.

While inviting attention towards the statement of PW--4 Bali it is submitted that although there is allegation with regard to land dispute in between the deceased and accused appellant Jagdish but upon perusal of the entire statement it will reveal that the said witness was not eye witness and everything is said only on the basis of presumption.

The learned counsel for the appellant submits that PW--7 Smt. Bali Bai and PW--8 Smt. Sumitra turned hostile and did not support the prosecution case. As per the statement of PW--4 Bali, Bali Bai W/o Bheru Lal informed her that Lathi (stick) has been hidden by Jagdish in front of her but in the statement before the court PW--7 Bali Bai turned hostile and did not support the statement of PW--4 Bali w/o deceased. The witness of recovery of Lathi, PW--11 Dal Chand did not prove the fact that stick (Upala) was recovered as per information given by the accused appellant, therefore his testimony deserves to be rejected.

PW--12 Hajari lal witness of recovery of shirt of accused appellant has not proved the fact that shirt of accused appellant Jagdish was taken in possession vide 9 Ex.P/8 because Ex.P/8 was prepared at 5.30 pm on 4.8.2009, but in the examination-in-chief he has accepted that Ex.P/8 bears his signature which is memo of taking shirt in possession but in the cross- examination, it is stated by him that he was called by the police in the evening at 7-8-9 pm and I was asked to put my signature, at that time, two other persons were also directed to put their signatures namely Kanhaiya Lal and Jasuji. According to learned counsel for the appellant on the basis of statement of Hajari Lal it cannot be said that recovery of shirt is in accordance with the provisions of the Cr.P.C.

The crux of the argument is that recovery is not proved, more so, there is no witness to prove the fact that injuries were caused by Lathi which is said to be recovered as per information given by the accused appellant.

Learned counsel for the appellant lastly submits that prosecution is required to proved its case beyond reasonable doubt in view of the various judgments of the Hon'ble Supreme Court but it appears from the entire evidence on record that prosecution has failed to prove its case beyond reasonable doubt, therefore, the 10 finding of conviction in the judgment impugned may kindly be quashed.

Per contra, learned Public Prosecutor submits that it is a case in which there is ample trustworthy evidence to prove allegation against the accused appellant for causing injury upon the head of his own brother deceased Nana Lal by stick (Upla), the wife of Nana lal PW--4 Bali categorically stated in her statement that in the morning at 4.30 am on 30.7.2009 her husband deceased Nana Lal left the house and went out from house for easing. When her husband left the house the accused appellant Jagdish was standing there with stick and he chased her husband and ultimately, as per information received by her, he caused injury upon head of Nana Lal. After receiving information when I proceeded to the place of occurrence, in between the way I saw that Narayan and Dal Chand were coming from opposite side while catching hands, thereafter, they took him to the hospital on motorcycle. The witness Bali further stated that there is land dispute in between her family and Jagdish, therefore he caused injury to Nana Lal which resulted into the death. With regard to recovery it is submitted that upon information given by the accused 11 appellant blood stained shirt was recovered vide Ex.P/8 in the presence of witness Hajari Lal upon which ultimately human blood was found as per FSL report. It is also argued that in presence of witness Dal Chand, stick (Upla) was recovered vide Ex.P/5 by the Investigating officer. Upon the said weapon also, the human blood was found, therefore, it cannot be said that learned trial court has committed any error to hold accused appellant guilty for offence of committing murder of his own brother.

The complainant PW--1 Bhura Lal proved the investigation took place on the place of occurrence, so also, the memos of recovery prepared by the investigating officer. PW--2 Narayan is the person who informed Bhera Lal that your brother Nana Lal is lying on road in the way of village Sudarshanpura and there are injuries upon his head. Thereafter, the injured was taken to the Begun Hospital. It is also stated by the witness that there is dispute with regard to land in between the brothers, therefore, the accused appellant inflicted injury which resulted into the death.

Learned Public Prosecutor submits that upon assessment of circumstantial evidence and dispute in between the parties, the learned trial court has rightly 12 gave finding that accused appellant is guilty for committing offence of murder of his own brother Nana lal, therefore, this appeal may kindly be dismissed.

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and findings given by the learned trial court against the appellant. Admittedly, in this case, there is no eye witness of the incident and case is based upon circumstantial evidence of recovery of stick (upla) and blood stained cloth of the accused appellant, so also, on the ground that there was dispute in between the deceased and the accused appellant.

In the written complaint filed by PW--1 Bhura Lal, brother of the deceased following facts were narrated by him, which reads as under:

^^lsokesa Jheku~ Fkkuk vf/kdkjh csaxw ftyk fpRrkSM+x<+ fo'k;% dkuwuh dkjokbZ djkus gsrw egksn;th fuosnu gS fd vkt fnukad 30&7&09 dks lqcg 4-30] djhc dh ckr gSA esjk NksVk HkkbZ ukukyky firk ekxhykyth /kkdM fuoklh vuksiqjk ¼[kjMh½ ?kj ls gkFk eqg /kksus ds fy, xkao ds ckgj jkLrs esa x;k Fkk mlds FkksMh nsj ckn gh ukjk;.k firk ijFkwth /kkdM gkFk eqg /kksus ds fy;s x;s ftugksus vkdj crk;k fd ukukyky jkLrs iM+k gSA flj esa yxh gksdj [kqu cg jgs gSA bl es o MkypUn x;s vksj ns[kk rks esjs HkkbZ ds flj esa nks txg xEHkhj pksVs yxh gksdj xgjs xko gks jgs Fks] [kwu cg jgk Fkk ck;s gkFk ij Hkh yxh gqbZ Fkh ukukyky csgks"kh gkyr esa iM+k Fkk esjs HkkbZ ukukyky dks esjs NksVs Hkkb&txnh"k us igys Hkh ekjkihV dh Fkh rch ls gekjs vkil esa 13 jUthl py jgh gS blh ckr dks ysdj vkt esjs HkkbZ ukukyky dks tku ls ekjus dh uh;r ls txnh"k us o mlds ?kj okyh us geyk dj pksVs igwpkbZ ?kVuk dks xko ds yksxksa us ns[kh gSA ukukyky dks ge gkLihVy esa ysds vk;s gS tks fd vHkh Hkjrh gSA fjiksV is"k gSA dkuwuh dkjokbZ dh tkosA fnukad 30&7&09 izkFkhZ Hkqjkyky^^ Upon perusal of the above FIR, undisputedly there was no information given by the complainant Bhura Lal to the complainant Narayan (PW--2) but said that he has saw the accused appellant at the place of occurrence when he was running with stick after inflicting the injury to the deceased Nana Lal, but the witness Bhura Lal alleged that there is enmity going on in between us and Jagdish, therefore Jagdish and his family members with intention to cause death, gave beatings, which is seen by the villages, but as per evidence on record none of the villagers come out with the allegation that they saw the accused appellant to inflict any injury to the deceased Nana lal to prove the said allegation. It is also worthwhile to observe that as per written complaint (Ex.P/1) no information was given by Narayan against the accused appellant Jagdish but in the trial, the witness Bura Lal (PW--1) categorically said that Narayan informed that accused Jagdish inflicted injury by stick and ran away. In our 14 opinion, when no such assertion was made by the complainant in Ex.P/1 with regard to the fact that the accused appellant after inflicting injury to Nana Lal ran away from the place of occurrence, then it is obvious that witness PW--1 Bhura Lal improved his statement and made allegation of causing injury.

PW--2 Narayan stated before the court that when I saw Jagdish he was run away from the place of occurrence after inflicting injury by stick to Nana Lal upon his head. If this allegation is correct then question arose why this fact was not informed to Bhura Lal (PW--1) when first information given to him.

Upon perusal of the statements of PW--1 Bhura Lal and PW--2 Narayan it is obvious that both these witnesses are not eye witnesses, more so, they improved their version from the written complaint (Ex.P/1) filed by Bhura Lal.

We have also perused the statement of Smt. Bali (PW--4) wife of deceased. The said witness is also not eye witness, but it is stated by her in her statement before the trial court that on the date of occurrence in the morning at 4.30 am when my husband left the house for easing, at that time, Jagdish went behind him after taking stick and later on, information was 15 received by her that Jagdish inflicted injury upon Nana Lal. Meaning thereby, Smt. Bali (PW--4) was also not present at the place of occurrence.

In the statement of PW--4 Smt. Bali it is categorically stated by her that one Bali Bai W/o Bheru Lal informed her that the weapon Lathi has been hidden by the accused appellant Jagdish but the said witness PW--7 Bali tuned hostile in the court and did not support the prosecution case. Meaning thereby, the facts stated by the witness PW--4 Bali with regard to recovery of Lathi is not proved by Bali Devi wife of Bheru Lal.

Upon assessment of entire evidence it is more than clear that there is no eye witness in this case, so also, no particular incident is reported by any of the witness with regard to enmity for land dispute. There is no documentary evidence on record to prove the fact that which is the land for which the dispute is going on.

Admittedly, as per prosecution case, incident took place in the morning at 4.30 am on 30.7.2009 at that time, obviously darkness was existing, then how it was possible to see that accused appellant after inflicting injury ran away from the place of occurrence. In view 16 of the above the prosecution story based upon circumstantial evidence is seriously doubtful.

The witness PW--7 Bali Bai and PW--8 Sumitra turned hostile and did not support the prosecution case.

We have examined the question of recovery of cloths as well as stick (upla) at the instance of the accused appellant. The weapon which is alleged to be used in the incident, which is stick (upla) was recovered vide Ex.P/5 and map at place of occurrence (Ex.P/4) was prepared and upon memo of verification of place by the accused appellant Ex.p/6 the witness Dal Chand put his signature. In the examination-in- chief it is nowhere stated by the witness Dal Chand from where the stick (upla) was recovered. In the cross-examination it is specifically stated by Dal Chand that there was no blood upon the weapon stick (upla) which is said to be recovered vide Ex.P/5, but it is very strange that prosecution has come out with the case that in the FSL report it is reported that human blood was found upon the stick. In our opinion, the prosecution story became doubtful because independent witness of recovery categorically stated that no blood was found upon the stick, whereas in the 17 FSL report it is reported that human blood was found upon the stick (upla).

The shirt of the accused appellant was also taken in possession he was wearing at the time of arrest on 4.8.2009 at 5.30 pm vide Ex.P/8. Admittedly, the incident took place on 30.7.2009 and accused appellant was arrested on 4.8.2009 and on that date as per the prosecution case at 5.30 pm in front of two witnesses Shyam Lal and Hajari Lal the blood stained shirt of accused appellant was taken in possession for investigation. The witness PW--12 Hajari Lal. It is stated by him in the cross-examination that on 4.8.2009 I was called at 7-8-9 pm to put my signature upon the recovery memo. It is also stated that police shown us one shirt of blue colour. Upon the said shirt there was blood spots. In our opinion, no prudent man can believe that any person after committing offence of murder on 30.7.2009 will wear the blood stained shirt again on 4.8.2009 and will not wash the shirt for four days.

In view of the above, we are of the opinion that the circumstances upon which the finding is given by the learned trial court have not been proved by the prosecution beyond reasonable doubt. 18

As per prosecution case, after incident immediately the injured Nana Lal was taken at Begun Hospital from where he was referred to the Government Hospital, Kota. At 11.06 am deceased was admitted to the hospital and after cityscan the injuries were found upon his head. The PW--19 Dr. Udai Bhomik stated in his statement that injured was operated in the hospital but ultimately he died, therefore, death certificate (Ex.P/19) was issued to him. In the cross-examination PW--19 Dr. Udai Bhomik accepted that the said injury can be caused if any stone thrown upon the head. It is evident from the statement of PW--19 Dr. Udai Bhomik and PW--17 Dr. Deepak Sharma that there were injuries upon the head of the deceased and after admitting the deceased Nana Lal the operation was conducted in the hospital but ultimately he died after 4 days from the date of incident on 3.8.2009.

Upon perusal of post mortem report (Ex.P/17) and considering the fact that operation was conducted in the hospital, we are of the opinion that although deceased died due to the injury caused upon his head, but at the same time, we cannot lose the sight of the fact that there is no eye witness in this case, so also, 19 the prosecution has failed to prove recovery, therefore FSL report cannot be considered against the accused appellant because as per the statement of witness of recovery of stick (upla), at the time of recovery of stick (upla), no blood was appearing but in the FSL report it is reported that human blood was found but group of blood cannot be ascertain.

Upon assessment of entire evidence, we are of the opinion that the chain of circumstances so as to held accused appellant guilty is lacking.

In the case of Sangili Vs. State of Tamil Nadu reported in AIR 2014 SC 3756 the Hon'ble Supreme Court gave following verdict upon consideration of circumstantial evidence, which reads as under:

"23. In Mani v. State of Tamil Nadu, this Court made following pertinent observation on this very aspect:

26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....

24. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v.

State of Andhra Pradesh, in the following manner:

6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt 20 out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence.

25. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan this Court observed as under:

24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185)

(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully 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;

(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."

In view of the above, it is settled principle of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. It emerges from the consideration of the entire evidence of this case that entire case is based upon circumstantial evidence, and prosecution has failed to prove motive, so also, all the witnesses of circumstantial evidence improved their statements, therefore in the totality of circumstantial evidence on record, it is not safe to uphold the finding of guilt recorded by the learned trial court so as to convict the accused appellant for the offence of murder therefore, the accused appellant is entitled for benefit of doubt.

Consequently, this cr. appeal is hereby allowed. The judgment dated 5.9.2012 passed by the learned Addl. Sessions Judge No.2, Chittorgarh Camp Begun in Sessions Case NO.10/2009 convicting and sentencing the accused appellant for the offences under Section 302 IPC is hereby quashed, the accused appellant be set at liberty unless required in any other case. 22

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 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.

( G.R. MOOLCHANDANI ),J. ( GOPAL KRISHAN VYAS ),J. cpgoyal/-

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Rajasthan High Court - Jodhpur