Rajasthan High Court - Jaipur
Ved Prakash And Anr. vs State Of Rajasthan on 22 May, 2003
Equivalent citations: RLW2004(1)RAJ627, 2003(4)WLC245
JUDGMENT Khem Chand Sharma, J.
1. This Criminal Appeal under Section 374 Cr.P.C. arises out of the judgment and order dated 21.1.1998 passed by the learned Sessions Judge, Dholpur, thereby convicting the accused appellants for offence under Section 302/34 IPC and sentencing reach of them to undergo imprisonment for life with a fine of Rs. 2000/-, in default thereof, each to undergo rigorous imprisonment for one year.
2 The prosecution story unfolded during trial is that on 6.3.96 at .10.30 PM, PW 2 Sarwan submitted a written, report at Police Station, Sadar Dholpur, slating therein that on the day of incident he had gone to some Sadhu Baba. At about 6.30/7.00 PM, one Hari Singh S/O Badan Singh of his village same to him and informed trial some body has murdered his father Karan Singh at mustard field Where he had gone to harvest mustard crop. He further informed that he came to his house and on enquiry, his wife Mahadevi informed that at the dusk of the day when she had gone to the field to call her father-in-law, she saw Ved Prakash, Dhola and Munshi running from the side of her field. The complainant alleged that some long standing dispute, as regards partition of land was going on between the parties and therefore, he doubted at the accused to have committed murder of his father. It was alleged that dead body of Karan Singh was lying at the field.
3. On the basis of above written report, police registered a case against three accused for offence under Sections 302 read with Section 34 IPC vide FIR, Ex. P15 and proceeded with the investigation. In the course of investigation, the police rushed to the place of incident and prepared inquest report, Ex.P. 1, seizure memo of dead body, Ex.P.3 and the site plan, Ex.P.4. The police seized blood smeared soil from the place of incident vide seizure memo Ex.P.5. The dead body was removed to the hospital, where PW 10 Dr. Ramesh Chandra Goyal conducted autopsy and prepared post mortem report, Ex.P.7. Appellants Munshi Lal and Ved Prakash were arrested vide arrest memos, Ex.P.9 and P.10, respectively. The police then seized pents of Munshi Lal and Ved Prakash vide seizure memos, Ex.P.11 and P. 12. Accused Ved Prakash furnished information, Ex.P.16 as regards recovery of knife and pursuant to his information, the police recovered a.knife vide memo Ex.P 17 and prepared site plan, Ex.P. 18 of the place of recovery. The recovered and seized articles were sent to the Forensinc Science Laboratory. The report of Serologist is Ex.P. 19.
4. Having completed investigation, the police submitted a charge sheet against the accused in the court of Additional Chief Judicial Magistrate, Dholpur. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions Judge.
5, After hearing counsel for the parties and on going through the evidence and material collected during investigation, the learned Sessions Judge framed charge against the accused appellants under Section 302 read with Section 34 IPC. The accused denied the charges and claimed trial.
6. The prosecution, in support of its case-examined as many as 19 witnesses and got exhibited some documents. Thereafter, the accused were examined under Section 313 Cr.P.C. The accused examined DW 1 Bachhu Singh in their defence. At the conclusion of trial, the learned Sessions Judge found the accused appellants guilty of having committed murder of Karan Singh and accordingly convicted and sentenced both of them as mentioned herein above. Hence this appeal against conviction and sentence.
7. We have heard learned counsel for the accused appellants and the learned Public Prosecutor and have gone through the judgment under appeal and the evidence on record.
8. At the very out set it may be stated that there is no direct evidence and the case squarely rests on circumstantial evidence. In arriving at a conclusion of guilt, the learned trial court has relied upon following four circumstances;
(I) the prosecution witnesses had seen the accused appellants running from the place of incident;
(ii) seizure of pents (trousers) from the appellants at the time of their arrest and the pents were found to be stained with blood;
(iii) recovery of blood stained knife at the instance of accused Ved Prakash, and
(iv) dispute between the appellants and deceased Karan Singh in regard to partition of field.
9. With a view to find out the correctness of the findings arrived at by the learned trial court, we have scanned the entire evidence on record. Firstly, we shall deal with the evidence concerning first circumstance as to the appellants having seen running from the place of incident. The first witness in the series is PW 4 Smt. Mahadevi, who is the daughter-in-law of deceased Karan Singh. She has deposed that on the day of Holi festival, her mother-in-law asked her whether she went to call 'Kaka' (Karan Singh) who had gone to harvest mustard crop. Thereupon, sh6 along with PW 5 Sri Devi left for the field to call Karan Singh. PW 8 Bhoo Devi met them on me way, who was on her way to the field to collect cow dung cake (kandas) and she also accompanied them to the field. Soon they reached at the boundary (medh) of the field, they saw their father-in-law Karan Singh lying dead' and accused Munshi and Ved Prakash were running from the field towards canal. In cross examination, the witness 'has given the'description of the cloths worn by the accused appellants. PW 5 Mst. Sri Devi has given same version as that of PW 4 Mst. Mahadevi. PW 8 Mst. Bhoodevi has deposed that on the day of Holi festival she had gone to be to collect 'kandas' at the field. She came down the boundary of the field to collect kandas' while Mahadevi and Sri Devi left for collecting mustard at their field. On hearing the cries of Mahadevi: and Sri Devi, she went running towards them and saw Ved Prakash S/O Babu and Munshi S/O Megh Singh running' towards canal. She saw her father in law Karan Singh lying dead, having incised wound on his neck. After a short while, PW 3 Ram Prakash also reaehed there. PW 3 Ram Prakash has stated that on the day of incident at about 6/6, 30 PM when he was returning from his field, he saw accused Ved Prakash and Munshi running, through the canal towards Basai samanta. When he crossed the canal, he heard the cries. When he reached at the field of Karan Singh, he saw Karan Singh lying dead having incised wound on his neck, Mahadevi, Bhoo Devi and Phoolwati were present there, who disclosed that Munshi and Ved Prakash have ran away after killing Karan Singh.
10. From the evidence discussed above, it stands established beyond doubt that on the day of incident the accused appellants were seen running from the place of incident by the prosecution witnesses. The fact of accused appellants having seen running from the place of incident is not only established by the oral evidence but is also established from the documentary evidence. A glance at the FIR, Ex.P.15 lodged by PW 2 Sarwan makes it abundantly clear that the appellants were found running from the place of incident. PW 2 Sarwan has specifically stated in the FIR that he was informed by his wife Mahadevi (PW 5) that she saw the appellants running from the place of incident at the time when she went to call her father-in-law Karan Singh and saw Karan Singh lying dead. In this view of the matter, we are firmly of the view that the prosecution has been able to prove first circumstance duly established against the appellants and the trial court has correctly found the first circumstance proved as against the appellants.
11. The second circumstance relied upon by the trial court is the recovery of pents (trousers) stained with blood. A perusal of FSL report, Ex.P.19 shows that the pents contained in packets marked C and D, exhibited as Articles No. 3 and 4 were found to be stained with 'A' group blood. Before we proceed to deal with the second circumstances, it may be stated that the incident took place on 6.3.96 and as per the arrest memos, the appellants were arrested on 15.3.1996 i.e. after 9 days of the incident. After their arrest, the police seized the pents (trousers) worn by the accused appellants which had blood spots and prepared the seizure memos Ex.P.11 and P12 dated 15.3.96. It appears to be highly improbable that the appellants would continue to wear the same pents stained with blood which were worn by them at the time of alleged commission of offence, for a long period of 9 days. PW 2 Sarwan, author of the FIR has stated in his cross examination that the police visited the place of incident on the same day and took him along with Megh Singh, Dhola, Ved Prakash and Munshi to the police station. He then stated that the poiice set him free on the same day, however, they kept others detained at the police station for 8 days. PW 3 Ram Prakash has deposed that police had arrested accused Ved Prakash and Munshi in the same night. PW 6 Mohar Singh has deposed that a day prior to the preparation of inquest report, the police had arrested the accused in the evening. The inquest report Ex.P.1 was drawn on 7.3.96, meaning thereby the police had arrested the accused on the same day of incident. PW 14 Rakesh has deposed that the police had arrived in the village at 9 PM and took away with them accused Ved Prakash and Munshi at about 9 PM.
12. In this view of the matter, the fact of pents (trousers) of the appellants having been seized by the police on 17.3.1996 vide seizure memos Ex.P11 and P12 stands falsified by the evidence discussed above. In our view, the seizure of pents of the accused on 17.3.96 appears to be highly improbable, in view of the fact that the police, as per the prosecution evidence, had already caught the accused persons on the same day of incident.
13. That apart, PW 4 Mst. Mahadevi has categorically described the colours of the pents of accused Munshi and Ved Prakash. According to this witness, accused Munshi had blue coloured pent, while Ved Prakash had white pent. It has come in her evidence that she saw the accused wearing the pents of the above colours while they were running from the place of incident. Whereas, the seizure memo Ex.P11 concerning the seizure of pent of accused Munshi shows that it was 'Badami' coloured pent, while seizure memo concerning seizure of pent of accused Ved Prakash shows that it was brown coloured (Matmeli).
14. Thus, it must be concluded that the prosecution has not been able to establish that accused appellants were wearing these very pents seized vide memos Ex.P. 11 and P12, at the time of incident. The finding of the learned trial court on circumstance No. 2 is held to be erroneous.
15. Now comes the third circumstance i.e. the recovery of knife at the instance of accused Ved Prakash. Accused appellant Ved Prakash furnished information (Ex.P.16) on 17.3.96 under Section 27 of the Evidence Act to get recovered the knife and in pursuance of the information, police recovered a knife which was found to be stained with blood of 'A' group. As stated above, the Baniyan of the deceased and the blood smeared soil collected from the place of incident were also found to be smeared with blood of 'A' group as per the FSL report Ex.P.19. On scrutiny of evidence, it is evident that the investigating agency was already in possession of the knife. PW 2 Sarwan has specifically deposed that police had taken out a Chhuri (knife) from canal on the second or third day of incident. Similarly, PW 3 Ram Prakash has deposed that 3-4 days after the incident the police had visited the canal and accused Ved Prakash and Munshi had searched and taken out something from the water of canal. In this view of the matter, no question of knife having been recovered at the instance of accused appellant Ved Prakash does arise as the investigating agency was already in possession of the knife even prior to the arrest of accused appellants.
16. That apart, a perusal of recovery memo, Ex.P.17 and site plan of the place of recovery, Ex.P.18 makes it crystal clear that the place from where knife was allegedly recovered was a open place accessible to all and sundry. We deem it appropriate to quote the relevant portion in the site plan concerning the place of recovery of knife, in the site plan, Ex.P.18: "NALE KE KINARE BANJAR JAMEEN MEIN SE KHARI BABOOL KI JHARI MEIN SE CHHURI BARAMAD HUIE". PW 19 Ramsnehi Yadad, SHO in his statement has also made it clarified that the place from where 'Chhuri' was recovered, was an open place and it was not of the ownership or in possession of appellant Ved Prakash. We are, therefore, of the Considered view that the prosecution has not been able to prove the third circumstance as regards recovery of knife at the instance of accused appellant Ved Prakash.
17. The last circumstance relied upon by the trial court in basing conviction is the dispute between deceased Karan Singh and the accused appellants regarding partition of the field. For the purpose of just decision on this circumstance, it would be profitable to discuss the prosecution evidence.
18. PW 2 Sarwan, son of the deceased has deposed that a case was pending between the complainant party and Bachhu, Babu and Megh Singh and the complainant party had won the case. This fact does not find place in the FIR lodged by none other than PW 2 Sarwan himself and in cross examination, Sarwan has admitted that he did not mention this fact in the report lodged by him.
19. PW 3 Ram Prakash has stated that deceased was his uncle and a case was pending between him and his uncle on one side and Megh Singh, father of accused Munsi on the other side. The witness then stated that a case with regard to partition is still pending between them and the father of accused appellant Munshi.
20. PW 4 Mabadevi W/O PW 2 Sarwan has stated that some case concerning the fields was pending among them. PW 5 Mst. Sridei has also given the similar statement. However she does not know as to which was the field involved in the case.
21. PW 8 Mst. Bhudei W/O PW 3 Ram Prakash has deposed that cause of enmity between them was the field. According to this witness appellant Ved Prakash is cousin of appellant Munshi and their sister's son.
22. PW 9 Mst. Phoolwati W/O Ram Niwas has deposed that deceased Karan Singh was her father-in-law. She has deposed that some litigation regarding land was pending between them prior to this incident.
23. PW 19 Ramsnehi Yadav, SHO has deposed that in the course of investigation it was found that there was some land dispute between the families of complainant party and the accused party.
24. DW 1 Bachhu Singh has also deposed that there stood enmity between them even 3-4 years prior fo the incident. He also admitted enmity between Megh Singh and deceased Karan Singh's family.
25. Thus, from the evidence discussed above, it appears that there Was some long standing land dispute between the parties. However, in our considered view no proximate cause of incident has been disclosed and therefore, the last circumstance as regards some land dispute between the parties cannot be considered to be a circumstance against the appellants.
26. It is a well established rule of criminal jurisprudence that circumstantial evidence can be reasonably made the basis of conviction of an accused if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt.
27. In view of the foregoing discussions, we have no option but to hold that the only circumstance which the prosecution has proved against the appellants is Circumstance No. 1 i.e. the appellants having been seen running from the place of incident, which cannot be said to be inconsistent With the innocence of the appellant. As stated above, the prosecution has miserably failed to prove other three incriminating circumstances and the only circumstance that has been proved is not sufficient to complete the chain unerringly pointing to the guilt of the appellants.
28. Lastly, it was strenuously contended by the counsel for the appellants that the learned trial court has committed serious error in relying upon the FSL report in arriving at a conclusion of guilt against the appellants. It Was argued that it was obligatory on the part of the prosecution to have put question to the accused appellants regarding the report of FSL, in the course of their examination under Section 313 Cr.P.C. Having failed to do so, the FSL report cannot be considered against the appellants. In support of the above argument, learned counsel has placed reliance on Zwinglee Ariel v. State of M.P. (1), Sharad v. State of Maharashtra (2), State of Maharashtra v. Sukhdeo Singh (3), Basavaraj R. Patil and Ors. v. State of Karnataka (4), Nirmal Pasi v. State of Bihar (5), and Lallu Manjhi v. State of Jharkhand (6).
29. In rebuttal, learned Public Prosecutor has contended that failure on the part of the prosecution to draw accused's attention to.the contents of the FSL report so as to enable him to explain it in their examination under Section 313 Cr.P.C. by itself does not vitiate the proceedings. It was strenuously contended that it was not necessary for the prosecution to have specifically drawn the attention of the accused to the contents of the FSL report. It was further argued by the learned Public Prosecutor that even it is open to the appellate court to call upon the counsel for the accused to show the explanation which the accused had to offer in respect of the circumstances estab lished against him but not put to him in the course of examination under Section 313 Cr.P.C. In support of his argument, learned counsel has relied Upon Shivaji Sahabrao Bobade v. State of Maharashtra (7), and State (Delhi Administration) v. Dharampal (8).
30. As regards the above argument, suffice it to say that in view of what we have concluded above, the argument now remains to be of academic character and therefore, we left the question as to the failure on the part of the prosecution to draw attention of the accused to inculpatory material to enable them to explain^ in their examination under Section 313 Cr.P.C., to be decided by this court in some appropriate case.
31. In the result, this criminal appeal is allowed. The judgment of the trial court is set aside and the appellants Ved Prakash and Munshi are acquitted of the offences charged with. Appellant Ved Prakash is in jail and he be set at liberty forthwith, if not required in any other case. Appellant Munshi is already on bail and he need not surrender to his bail bonds, which stand cancelled.