Rajasthan High Court - Jodhpur
Ghasi Nath Jogi vs State on 24 May, 2017
Bench: Gopal Krishan Vyas, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 145 / 2009
Ghasi Nath Jogi S/o Bheem Nath, by caste Nath (Jogi), Resident of
Mori Bera Station, Police Station Nana, District Pali.
[Lodged in Central Jail, Jodhpur]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Pradeep Choudhary
For Respondent(s) : Mr. C.S. Ojha, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE INDERJEET SINGH Judgment / Order 24/05/2017 The instant criminal appeal has been filed by the appellant Ghasi Nath Jogi under Section 374(2) of Cr.P.C. against the judgment dated 9th of July, 2008 passed by Additional Sessions Judge Bali, District Pali (hereinafter referred to as the learned trial court) in Session Case No.18/2006 whereby the learned trial court convicted the accused appellant for the offences under Sections 364 and 302 IPC and following sentence was passed against him:
(2 of 15) [CRLA-145/2009] 364 IPC Imprisonment for life with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months R.I. 302 IPC Imprisonment for life with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months R.I. As per brief facts of the case, on 27th of February, 2006 at 1:00 PM the complainant PW.4 Punaram submitted a written report (Ex.P/9) at Police Station Sadari, District Pali in which following facts were stated by him, which reads as under:-
"lo s k eas Jheku Fkkuns kj lkgc iqfyl Fkkuk lknMh+ vtZ ,d iqukjke i=q ues kjkth tkfr t.kok pkS/kjh fuoklh xqMk+ dY;k flga bl id z kj gS fd eSus s lky s g lky igys dhdyh iq=h py s kj ke th fuoklh xqMk+ lhjoh ls ikrk dh;k FkkA tks fnukd a 23-2-006 xq:okj dks vius ihgj tkus dk dg dj xbZ Fkh fnukd a 25-02-06 dh "kke rd okil ugha vkbZ rc eaS ejs s lqljky x;k ejs k lkyk ldkjke ls iN w k ftlus dgk fd dhdyh ;gk ugha vkbZ rc mldh rykl dh exj vkt ugha ehyhA ejs s VªsDVj ij 6 N% ekg rd ?kklhukFk S/o HkheukFk tkfr tkxs h fuoklh ekjs h cMs k okyk MªkbZoj jgk FkkA mlus pkj ikp a ekg chukuh eas VªsDVj pyk;k FkkA ftldk fglkc mlds ikl gS mldk Qkus vkus ij eSa o ejs h iRuh fglkc eka xrs Fks tks fnukd a 22-2-06 dks ejs s ?kj vk;k Fkk rc Hkh geus fglkc ekxa Fkk tks xhlkukFk fnukd a 23-02-06 dh "kke ls vius ?kj ls ykirk gS ejs h iRuh dk vigj.k blh us gR;k djus dh uh;r ls dh;k gSA ejs h iRuh ds iguus dks pknha ds dMh+ ;k tkMs +h ,d otu djhc vknk dhyks o V.kdk tkMs h ,d out 22 rky s k NMk+ tkMs h+ ,d otu djhc (3 of 15) [CRLA-145/2009] 8&10 rky s k] lkus s dh d.Bh djhc nks rky s k dh dkukas ds Vkis l lkus s ds djhc M<s rky s k ,oa ukd eas lkus s dh Qh.kh gAS igus dks ihyk vkjs .kk lrjh xkxjk tjlh dk dkyk yky dqjrh gSA jxa xgs qvk dn NkVs k "kjhj iryk the.kk gkFk dk iqj.kk VVq k gqvk gAS xgukas dks vk;Unk eas n[s kdj igpku ldrk gaw jhikVs Z djrk gaw dkuuw h djokbZ djAs Sd/- iqukjke"
In pursuance of the aforesaid written report, a formal FIR No.25/2006 (Ex.P/25) for the offences under Sections 364 and 366 IPC was registered against the accused appellant at Police Station Sadari, District Pali and investigation was commenced.
During the course of investigation, the Police Inspector has recorded the statements of prosecution witnesses and made recoveries and after arresting the accused appellant, recovered dead body of the deceased Smt. Kikali and also prepared "Panchnama" of the body, inquest report and sent the dead body for Post Mortem to the Primary Health Centre, Barna, District Pali where Medical Board conducted the Post Mortem of the dead body and gave its report (Ex.P/15).
After completion of the investigation, the SHO, Police Station Sadari, District Pali submitted the charge-sheet against the accused appellant in the Court of Judicial Magistrate, Desuri, District Pali for the offences under Sections 364, 366 and 302 IPC. The learned Judicial Magistrate, Desuri, District Pali committed the case for trial to the Court of Additional District Sessions Judge, Bali, District Pali.
(4 of 15) [CRLA-145/2009] The learned Additional Sessions Judge, Bali, District Pali after hearing the arguments of the parties, framed charges against the accused appellant under Sections 364, 366 and 302 IPC, but accused appellant denied the charges levelled against him and prayed for trial. In the trial, statements of 18 prosecution witnesses were recorded and 30 documents were exhibited in support of prosecution case. Thereafter, the statement of accused appellant was recorded under Section 313 of Cr.P.C. in which he denied all the allegations levelled against him by the prosecution witnesses and said that prosecution has falsely implicated him due to ulterior motive.
In defence, no oral evidence was produced by the appellant, but two documents were exhibited in support of his defence. The learned trial Court after regarding evidence finally heard arguments of both the sides and convicted the accused appellant for the offences under Sections 364 and 302 IPC and acquitted the appellant from the charges levelled against him for the offence under Section 366 IPC vide impugned judgment dated 9 th of July, 2008.
In this appeal, the appellant has challenged the impugned judgment dated 9.7.2008 on various grounds.
Learned counsel for the accused appellant vehemently argued that findings of learned trial Court is not sustainable in law because prosecution has failed to prove its case reasonable doubt. As per learned counsel for the appellant, the entire case is based upon circumstantial evidence and to prove the case of circumstantial evidence, it is the duty of prosecution to lead (5 of 15) [CRLA-145/2009] evidence to complete the chain of circumstances so as to arrive at the finding that only the accused appellant is responsible for committing offence, none-else.
Learned counsel for the appellant further argued that there is no reliable evidence of motive so as to connect the accused appellant with the crime. Whatever evidence produced in the Court with regard to transaction of money, it can be said that it is a concocted story so as to implicate the accused appellant in the crime. It is also submitted that no offence under Sections 364 and 302 IPC is made out for the simple reason that the main ingredient of offence under Section 302 IPC i.e., motive is absent.
While inviting attention towards the evidence, it is submitted that there is no reliable or cogent evidence of last seen is available on record, but learned trial Court has relied upon the circumstantial evidence of last seen, which has not been proved by the prosecution with regard to recovery of dead body of deceased and her ornaments, so also, the weapon, which is said to be used, has not been proved beyond reasonable doubt because the witnesses of the recovery turned hostile and did not support the prosecution case. Therefore, the judgment impugned deserves to be quashed.
Learned counsel for the appellant invited our attention towards the fact that all the article recovered during investigation was sent to FSL, but as per FSL report (Ex.P/30) no blood group was found upon the articles, which were sent for the examination. As per the evidence on record there is no independent witness to corroborate the recoveries of clothes, weapon and ornaments.
(6 of 15) [CRLA-145/2009] Therefore, the entire prosecution case, which is based upon circumstantial evidence is false and finding of conviction recorded by the learned trial Court suffers from material evidence available on record. It is argued that there are major contradictions and inconsistencies in the statements of prosecution witnesses and as such those statements cannot be relied upon so as to convict the accused for serious offence of murder.
Lastly, it is argued that as per settled preposition of law, the prosecution has to prove its case beyond reasonable doubt and to lead evidence to complete the chain of circumstances so as to hold accused appellant guilty, but here in this case, the prosecution has failed to prove its case beyond reasonable doubt because the entire chain of circumstances is not in existence. Therefore judgment impugned deserves to be quashed.
Per contra, learned Public Prosecutor appearing on behalf of the State vehemently argued that although the entire prosecution case is based upon circumstantial evidence but it cannot be said that the trial Court has committed an error so as to hold appellant guilty because the complainant PW.4 husband of the deceased categorically stated before the Court that there was money transaction in between accused appellant Ghasi Nath Jogi and complainant as he was driver upon the vehicle of the complainant. Further, it is submitted that Investigating Officer has categorically proved the recovery of ornaments as per information given by the accused appellant, so also, the witnesses who were present at the time of recovery put their signatures upon recovery memo, therefore, it cannot be said that prosecution has failed to prove its (7 of 15) [CRLA-145/2009] case beyond reasonable doubt.
Learned Public Prosecutor submits that the ornaments and dead body were recovered at the instance of accused appellant. The ornaments were identified by the witness PW.4 before the Magistrate in the Test Identification Parade conducted before him. Therefore it is a case in which no interference is called for and the findings arrived for the offences under Sections 364 and 302 IPC.
The arguments of the learned Public Prosecutor is that prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence, therefore, the instant criminal appeal may kindly be dismissed.
After hearing learned counsel for the parties, we have considered the finding in the light of evidence on record. The entire case is based upon circumstantial evidence of last seen, recovery and identification of ornaments and motive. To proceed further, first of all it is required to be observed that out of 18 witnesses PW.1 Babulal, PW. 2 Shamaram, PW. 6 Puraram and PW.7 Punaram turned hostile and did not support the case of the prosecution with regard to recoveries of ornaments, clothes and weapon. The finding of the learned trial Court is based upon the testimony of complainant PW.4 Punaram (husband of the deceased Kikali) and statement of PW.13 Prakash and Investigating Officer.
Upon assessment of the aforesaid statements of prosecution witness, our finding for evidence of last seen, recovery of ornaments and other articles and motive is as follows:
(8 of 15) [CRLA-145/2009]
1. Last Seen :- To consider the evidence of last seen coupled with the finding of learned trial Court, we have perused the statement of PW.4 Punaram. In the said statement there is no whisper about last seen of the deceased with the accused appellant Ghasi Nath Jogi. The sole witness of last seen is PW.13 Prakash. The said witness Prakash stated on oath before the Court that on 23rd of February, 2006, I saw Kikali with Ghasi Nath when they were sitting in the bus of Mayur travels. As per said witness on that day he went to Hanuman Temple for darshan. The bus in which the deceased Kikali and Ghasi Nath were sitting gone towards the Kambeshwar Temple. In the cross-examination it is stated by the witness PW.13 Prakash that, "cl dh vxyh QkVd ls ?kklhukFk p<+k o cl dh fiNyh QkVd ls fddyh p<+h Fkh] osjkoy pkSjkgs ijA"
Upon assessing the said statement we are of the opinion that such type of evidence cannot be treated to be evidence to prove the fact of last seen. It is also worthwhile to observe that in whole of the statement of PW.13 Prakash, it is nowhere disclosed by him that how he was knowing the deceased Kikali. In our opinion the finding of the learned trial Court to accept evidence of last seen while relying upon the statement of PW.13 Prakash, is not sustainable in law because at the time of considering circumstantial evidence of last seen is required to be proved beyond reasonable doubt. Therefore, the finding of the learned trial Court in the impugned judgment to accept the evidence of last seen deserves to be discarded.
2. With regard to recovery of articles and ornaments: We have perused the information given by accused appellant under (9 of 15) [CRLA-145/2009] Section 27 of the Evidence Act in Ex.P/26 to Ex.P/29. All these information were obtained at the place of occurrence from the accused appellant, i.e. at Kambeshwar Hills' boundary. The first information (Ex.P/26) was recorded at 6:15 PM on 27th of February, 2006 with regard to recovery of the dead body of the deceased and in pursuance of the said information which is said to be taken at Kambeshwar boundary, the body was recovered vide (Ex.P/3) at 10:00 AM on 28th of February, 2006 in presence of two witnesses, Shamaram and Babulal, however, both these witnesses turned hostile and did not support the prosecution case.
In the information (Ex.P/26) it is nowhere informed by the accused appellant that I can show the place where dead body of Kikali is dying, more so, in the information, it is stated by him that, "mijkDs r vuoku eqdnek es fxj¶rkj lnq k vfHk;qDr ?kklhukFk i=q HkheukFk tkfr tkxs h fuoklh ekjs hcMs k+ us eu I/O HkS:flga SHO, P.S. lknMh+ dks LoPS N;k iow d Z bRryk nh fd **,d yqxkbZ jh yk"k Hkk[kj jh xqQk eas Mky;kMs h+ gS m.k txg us lkFks gky j ijh crkoAw ".
It is very strange that as per prosecution case the accused appellant knew the deceased Kikali being driver of vehicle of her, then how he said that he has made aforesaid information for unknown lady, therefore, the recovery at the instance of accused appellant is seriously doubtful.
We have also perused the information Ex.P/27 with regard to recovery of ornaments dated 28th of February, 2006 at 11:30 AM at the same place where Kambeshwar hills boundary and recovery memo of the ornaments (Ex.P/7). The said recovery was also made in front of two witnesses Bheem Nath and Samaram, (10 of 15) [CRLA-145/2009] Witness, Bheem Nath has not produced as a witness in the court and Samaram, turned hostile. The recovery memo speaks that ornaments were recovered at 3:45 PM on 28th of February, 2006 in Kambeshwar Mahadev Temple. In our opinion, the said recovery is also doubtful because as per the facts of the case the appellant was also already present at Kambeshwar hills, then how information/s were received in different time by the prosecution so as to connect the accused appellant with the crime. The Motbir witnesses of recovery turned hostile and did not support the prosecution case.
We have also perused the information (Ex.P/28) recorded by the investigating officer at 11:45 AM on 28.02.2006 at the same place. With regard to recovery of knife (Nqjh) at the same place, which is Kambeshwar Hills. The said information was also recorded in the presence of two witnesses, namely, Samram and Babulal, who turned hostile and did not support the prosecution case. The witness Samaram (PW.2) categorically stated in his statement that no recovery of dead body was made in his presence. He further stated that Ex.P/1 to P/8 were not prepared in front of him. In the cross-examination, it is specifically stated by him that the police obtained my signature in village Guda Kalyan Singh. Similar statement was given by the PW.1 Babulal, therefore, it is obvious that prosecution has failed to prove the recovery of the ornaments, weapon of offence i.e. knife "Chhuri" and dead body so as to connect the accused appellant with the crime.
The learned trial Court has completely ignored the said fact and relied upon the statement of investigating officer, in our (11 of 15) [CRLA-145/2009] opinion it is not safe to hold accused appellant guilty for such type of evidence. With regard to identification of the ornaments, we are of the opinion that even if the ornaments were identified by the complainant Punaram (PW.4) it cannot be said that prosecution has proved the recovery of the ornaments at the instance of accused appellant. It is also worthwhile to observe that the proceeding of identification is also doubtful beyond it is possible for Investigating Officer to conclude similar type of gold and silver ornaments for the purpose of identification, therefore, in our opinion the identification of ornaments is also seriously doubtful. In the FIR description of ornaments was not disclosed by the complainant. Therefore, it is not safe to rely the evidence of identification of ornaments, so also, the recovery of same.
With regard to motive, it is strange that except complainant Punaram, there is no other evidence to prove the fact that there was any dispute with regard to recovery of Rs. 40,000/- from the accused appellant; and even if the statement of Punaram is accepted that there was money dispute in between him and Ghasi Nath, how it can be presumed that wife of Punaram was murdered by the accused appellant for such type of dispute of recovery of Rs.40,000/-. The learned trial court has committed grave error in considering said evidence to ascertain motive.
The investigation conducted by the Investigating Officer PW.17- Bhairu Singh, is seriously doubtful on the ground that in the FSL report (Ex.P/30) it is nowhere reported that same blood group was found upon the clothes and knife recovered at the time of accused appellant.
(12 of 15) [CRLA-145/2009] It is settled preposition of law at the time of considering the circumstantial evidence so as to hold accused appellant guilty, the prosecution required to prove its case beyond reasonable doubt and adduce reliable and trustworthy evidence so as to arrive at the conclusion that only accused is guilty for commission of offences and none else. If any fact of chain of circumstances is broken/missing then benefit of doubt will goes in the favour of the accused appellant. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, the Hon'ble Apex Court held that the prosecution is required to prove its case beyond reasonable doubt, if the allegation is based on circumstantial evidence.
Recently, the Hon'ble Supreme Court in the case of Sangili Vs. State of Tamil Nadu, reported in 2014 (10) SCC 264, while following the earlier judgment in the case of Sharad Birdhichand Sarda (supra) the Hon'ble Supreme Court held as under: -
"23. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273, 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, (2011) 14 SCC 117 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 out by the prosecution (13 of 15) [CRLA-145/2009] 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, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, 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."
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the (14 of 15) [CRLA-145/2009] Act is the information leading to discovery and not any opinion formed on it by the prosecution."
(emphasis supplied)
26. It is settled position 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. In our opinion, it is not safe to record a finding of guilt of the appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set-aside the conviction and sentence of the appellant. The appellant be set at liberty unless required in any other case."
We have considered the entire evidence of present case in the light of aforesaid judgments and find that prosecution has failed to prove its case beyond reasonable doubt on the circumstantial evidence of last seen, recovery of ornaments, so also, the motive has not been established by cogent evidence.
Consequently, we are of the opinion that the finding of the learned trial Court so as to hold accused appellant guilty is not sustainable in law and accused appellant is entitled to have benefit of doubt.
Accordingly, the instant criminal appeal is allowed, the judgment impugned dated 9th of July, 2008 passed by Additional Sessions Judge Bali, District Pali in Session Case No.18/2006, is hereby quashed and set aside. It is ordered that the accused appellant is released forthwith and if not required in any other case.
(15 of 15) [CRLA-145/2009] 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.
(INDERJEET SINGH)J. (GOPAL KRISHAN VYAS)J. Anurag/-