Rajasthan High Court - Jaipur
Omi @ Roop Singh vs State Of Raj Asthan on 26 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 934/2009
Omi @ Roop Singh son of Shri Hari Singh @ Hariya by caste
Gurjar, R/o Bahsu Ka Bass, P.S. Kherli, District Alwar, Rajasthan.
(At present confined in District Jail Alwar)
----Appellant
Versus
State Of Rajasthan
----Respondent
Connected With D.B. Criminal Revision Petition No. 1102/2009 Mohar Pal s/o Shravan Jat r/o Sajanpada Tehsil Kathumar, District Alwar.
----Appellant Versus
1. State of Rajasthan through PP Accused - respondents
2. Lallu Ram
3. Bhoor Singh
4. Jagdish Prasad @ Jagan Prasad All sons of Laxminarain by caste Jat, r/o Mohanbas, Police Station Kherli, District Alwar.
----Respondents
DBCRLA No.
934/2009
For Appellant(s) : Mr. Satya Pal Poshwal
Mr. Vivek Sharma
Mr. Vinod Choudhary
For Respondent(s) : Mr. Javed Choudhary PP
DB Cr. Revision
Petition No.
1102/2009
For Petitioner(s) : Mr. Ajay Tanwar
Mr. Rahul Meratwal for Mr. Ashvin
Garg
For Respondent- : Mr. Javed Choudhary PP
State
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(2 of 19) [CRLA-934/2009]
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE BANWARI LAL SHARMA
-/Judgment/-
26/04/2019 Per: Kanwaljit Singh Ahluwalia, J (ORAL) D.B. Criminal Appeal No. 934/2009:
Omi @ Roop Singh son of Hari Singh @ Hariya was tried alongwith Lallu Ram, Bhoor Singh and Jagdish Prasad @ Jagan Prasad all sons of Laxmi Narayan.
Rampati deceased was married with Lallu Ram. Initial case of the prosecution as unfolded by the complainant was that Rampati was given beating by her husband Lallu Ram and his two brothers Bhoor Singh and Jagdish Prasad @ Jagan Prasad. She was turned out of the house and later on the assurance given by two persons, she was sent back to her matrimonial home.
Mohar Pal (P.W.13) is father of deceased Rampati, whereas Latoor (P.W.12) is cousin of deceased being son of brother of Mohar Pal (P.W.13).
The complainant Latoor (P.W.12) and Mohar Pal (P.W.13) raised a suspicion against Lallu Ram husband of the deceased and his two brothers Bhoor Singh and Jagdish Prasad @ Jagan Prasad. Subsequently, during investigation, the investigating agency came to conclusion that the deceased Rampati in the night had gone to take money from Omi @ Roop Singh. This fact was brought on record by Kumari Nirma (P.W.8) and Pinky (P.W.21) both daughters of the deceased and the acquitted accused Lallu Ram.
It may be noted that Omi @ Roop Singh is not related to Lallu Ram, Bhoor Singh and Jagdish Prasad @ Jagan Prasad. (Downloaded on 28/06/2019 at 02:17:44 AM)
(3 of 19) [CRLA-934/2009] The prosecution relied upon recovery of two silver anklets i.e. one from the spot vide memo Exhibit-P/9 attested by Sita Ram (P.W.2) and Moti Lal (P.W.3) and another from the shop of jeweller Hariom Khandelwal (P.W.4) at instance of accused appellant. Second silver anklet as alleged, accused after committing murder had taken from the spot by chopping the foot of deceased. Said anklet (second) was taken into possession from jeweller Hariom Khandelwal (P.W.4) vide recovery memo Exhibit- P/19 attested by Dinesh Chand (P.W.6) and Constable Lakhan Singh (P.W.17). Darant (sickle) and blood stained clothes from the accused were also recovered and relied by the prosecution in a case of circumstantial evidence to secure the conviction of the appellant.
The court of Additional Sessions Judge (Fast Track), Laxmangarh, Alwar, acquitted Lallu Ram husband of the deceased alongwith his two brothers Bhoor Singh and Jagdish Prasad @ Jagan Prasad. The trial court relying upon the testimony of Kumari Nirma (P.W.8) and Pinky (P.W.21), Lichhman @ Laxmi Narain (P.W.9), recovery of silver anklets, recovery of weapon of offence and blood stained clothes of the accused, convicted the appellant for the offences under Sections 302, 201 and 404 IPC.
Having convicted the appellant for the aforesaid offences, the trial court vide a separate order of even date sentenced the appellant as under:-
U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo additional two months RI.(Downloaded on 28/06/2019 at 02:17:44 AM)
(4 of 19) [CRLA-934/2009] U/s. 201 IPC- to undergo three years RI and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional one month RI.
U/s. 404 IPC- to undergo three years RI and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional one month RI.
All the sentences were ordered to run concurrently.
Vide impugned judgment dated 18.6.2009, Lallu Ram, Bhoor Singh and Jagdish Prasad @ Jagan Prasad have been acquitted for the offences under Sections 498A, 302 and 201/34 IPC.
Aggrieved against the acquittal of Lallu Ram, Bhoor Singh and Jagdish Prasad @ Jagan Prasad, the complainant has filed D.B. Cr. Revision Petition No. 1102/2009. Aggrieved against his conviction and sentence, Omi @ Roop Singh has filed D.B. Cr.
Appeal No. 934/2009.
The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/1) submitted by Latoor (P.W.12) and Mohar Pal (P.W.13) before Kishore Singh (P.W.1) who at the relevant time was posted as SHO, Police Station, Kherli, Alwar. The written report (Exhibit-P/1) when translated into English, reads as under:-
"To SHO Saheb, P.S. Kherli, Alwar.
Subject: for taking legal action regarding murder Sir, It is submitted that my daughter Rampati was sent back to her in-laws house only one month ago. She was sent back upon assurance given by two persons namely Paratyaram Badsu and Dhandhu Ram Dhanda. Rampati was staying with me for the last eight months. Bhoor Singh, Jagan and Lallu Ram all (Downloaded on 28/06/2019 at 02:17:44 AM) (5 of 19) [CRLA-934/2009] three brothers used to give beating to her and had turned her out of the house. She started staying with her brother Latoor Singh. Later on the assurance given by the relative Paratyaram Badsu and Dhandhu, she was sent back to Mohanwas. On 14.7.2006 at 7:00 AM, information was received that her dead body is lying in the fields. The above information was given to us by Mahendra son of Mannu Ram at 7:00 AM on 14.7.2006.
We went to the spot and saw that the neck and one foot of Rampati were chopped off. She has been murdered by causing incised injury on neck by all the five members namely Lallu Ram, Bhoor Singh, Jagan Prasad and their wives Barfi and Meera respectively. On our asking all the five persons stated that if we have killed her we have killed (ekj nh rks ekj nh½, you may do whatever you want. Therefore, it is requested that legal action be taken.
Sd/-
Applicant Brother Laoor Singh Jat Sajanpada, Date 14.7.2006 and father Moharpal Jat, Sajanpada."
On the basis of above written report (Exhibit-P/1), formal FIR (Exhibit-P/2) bearing No.119/2006 was registered at Police Station Kherli, Alwar for the offences under Sections 143, 302 and 201 IPC.
Charges were framed against the appellant. The first charge stated that on the intervening night of 13.7.2006 and 14.7.2006, in the jungle of Mohanwas the appellant committed murder of Rampati and thus, committed offence punishable under Section 302 IPC. The second charge stated that after committing murder of Rampati, the accused appellant Omi @ Roop Singh caused disappearance of the evidence of murder and thus, committed offence punishable under Section 201 IPC. The third charge stated that the accused misappropriated silver anklets worn by Rampati deceased and thus, committed offence punishable under Section 404 IPC.
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(6 of 19) [CRLA-934/2009] The trial Judge also framed charges for offences under Sections 498A and 302 IPC in alternate Section 302/34 and 201 IPC against Lallu Ram husband of Rampati deceased and his two brothers Bhoor Singh and Jagdish Prasad @ Jagan Prasad.
All the four accused pleaded not guilty and claimed trial.
The prosecution commenced its evidence and examined twenty three witness namely Kishore Singh (P.W.1), Sitaram (P.W.2), Moti Lal (P.W.3), Hariom Khandelwal (P.W.4), Dhara Singh (P.W.5), Dinesh Chand (P.W.6), Hukum Singh (P.W.7), Kumari Nirma (P.W.8), Lichhman @ Laxminarayan (P.W.9), Dr. Sitaram Agarwal (P.W.10), Omprakash (P.W.11), Latoor (P.W.12), Moharpal (P.W.13), Chhajjuram (P.W.14), Bhagwan Singh (P.W.15), Ramnarayan (P.W.16), Lakhan Singh (P.W.17), Lalaram (P.W.18), Rajesh Singh (P.W.19), Mohan Lal (P.W.20), Pinky (P.W.21), Pratap Singh (P.W.22) and Samay Singh (P.W.23) to prove its case. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. They denied all incriminating circumstances put to them and pleaded innocence. In defence, the acquitted accused examined five witnesses namely Ramkishan (D.W.1), Ram Singh (D.W.2), Chhote Lal (D.W.3), Jagdish (D.W.4) and Brahama Singh (D.W.5). Most of the defence witnesses were examined to prove alibi on the part of the brothers of husband of the deceased Rampati.
First, we shall deal with the evidence of last seen. During the course of investigation, Hukum Singh (P.W.7) made a statement under Section 161 Cr.P.C. stating that Rampati deceased was last seen in the company of Omi @ Roop Singh, the present appellant. In the court, Hukum Singh (P.W.7) (Downloaded on 28/06/2019 at 02:17:44 AM) (7 of 19) [CRLA-934/2009] turned hostile and deposed that on 13.7.2006 at 7:30 PM, he had gone to take a bath at the Well of Lallu Ram. Lallu Ram called him for smoking hukka. This witness stated that when he was taking bath, Rampati went towards the jungle from the rear door of the house. This witness stated that when he returned after taking bath, he had not seen the deceased Rampati. This witness was confronted with his previous statement Exhibit-P/29 recorded under Section 161 Cr.P.C. He denied the contents thereof and thus, in no way has advanced the case of prosecution. Therefore, the evidence of last seen has not been proved by the prosecution.
Evidence of Rampati deceased purportedly called by the accused:
The prosecution examined Kumari Nirma (P.W.8) aged 16 years daughter of Rampati and Lallu Ram acquitted accused.
This witnesses stated that on 13.7.2006 her mother made a request to accused Omi @ Roop Singh to pay the amount. This witness stated that in the night at 8:00 PM, her mother went to Omi @ Roop Singh for taking the amount. This witness stated that their uncles were not present at their house and aunt Meera was present in the house. We shall reproduce the relevant portion of examination-in-chief of Kumari Nirma (P.W.8) as under:-
"vkB cts esjh eEeh vkseh xqtZj ds ikl :i;s ysus xbZ vkSj eq>ls dg xbZ fd dkdk dks jksVh f[kyk nsukA ge nksuksa cgus dkdk dks jksVh nsus dejs ij x;sA tc rd eEeh ?kj ugha vkbZ FkhA ?kj esa esjh pkph ehjk ds vykok dksbZ ugha FkkA fQj geus dkdk ls dgk fd eEeh vHkh rd ugha vkbZ gS fQj geus eEeh dks gsjkA geus lkspk fd lhrkjke HkkbZ ds iksrk gqvk gS rks eEeh ogh pyh xbZ gksxhA"
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(8 of 19) [CRLA-934/2009] Kumari Nirma (P.W.8) in the cross-examination stated that her statement was taken by the police on the next day.
Pinky (P.W.21) another daughter of Rampati and accused Lallu Ram in the court deposed that she alongwith her mother and sister Kumari Nirma were working in the fields. Omi @ Roop Singh came. Mother had asked for the amount. First Omi @ Roop Singh refused but later said that she should come after sometime to take the amount. This witness further stated that her uncle and aunt were not present at home.
It will be apposite here to take note of the testimony of Kishore Singh (P.W.1) investigating officer who in court in respect of amount advanced stated as under:-
"eqfYte vkseh us jkeifr ls fdrus :i;s m/kkj fy;s ml ckcr dksbZ xokg ugh feyh fdl rkjh[k dks :i;s o fdlds lkeus fy;s ;g ckr izdV esjh vuqla/kku esa ugh gqvkA xokg dqekjh fujek tks e`rdk dh yM+dh gS mlus iSls m/kkj ysus ds ckcr cryk;k Fkk o mldh nksuksa yMfd;ksa us c;ku esa cryk;k Fkk fdl LFkku ij iSls fn;s x;s Fks ;g esjs vuqla/kku esa ugh vk;k ysfdu mldh yMfd;ks o gqdeflag us ;g ckr rkbZN dh gS fd jkeifr ds iSls :iflag mQZ vkseh ij pkfg;s FksA jkeifr us dc fdlls ysu nsu fd;k ;g eq>dks irk ugh gSA"
We find merit in the argument raised by the learned counsel for the appellant that both the sister namely Kumari Nirma (P.W.8) and Pinky (P.W.21) were examined merely to absolve Lallu Ram, Bhoor Singh, Jagdish Prasad @ Jagan Prasad, Barfi and Meera by introducing the fact that deceased left the (Downloaded on 28/06/2019 at 02:17:44 AM) (9 of 19) [CRLA-934/2009] house to meet appellant in order to implicate the accused Omi @ Roop Singh.
Be that as it may, there is no positive evidence that deceased Rampati after left the house had reached to the house of the accused Omi @ Roop Singh or she met him at any particular spot. No witness to this effect has been examined. The fact that the deceased Rampati has gone to meet the accused has surfaced later during the course of investigation. The complainant Latoor (P.W.12) and Mohar Pal (P.W.13) stuck to their guns and persisted with their belief that Rampati was murdered by her husband and family members of the husband. This fact is also discernible from the filing of revision petition by the complainant to assail the acquittal of Lallu Ram, Bhoor Singh and Jagdish Prasad @ Jagan Prasad.
We cannot discount the probability that when complainant Latoor (P.W.12) being maternal uncle and Mohar Pal (P.W.13) being maternal grandfather came to the village of the husband of deceased Rampati, and also at the place of occurrence, they met Kumari Nirma (P.W.8) and Pinky (P.W.21). They must have inquired from witnesses Kumari Nirma (P.W.8) and Pinky (P.W.21) regarding whereabouts of their mother. It was expected from both the witnesses Kumari Nirma (P.W.8) and Pinky (P.W.21) to disclose to their maternal uncle Latoor (P.W.12) and Mohar Pal (P.W.13) maternal grandfather that Rampati had left the house to receive the amount from the accused. This fact is not discernible in the written report (Exhibit-P/1) on the basis of which FIR (Exhibit-p/2) was registered.
Now, we shall deal with the evidence of Lichhman @ Laxmi Narain (P.W.9). He in court disclosed that deceased Rampati (Downloaded on 28/06/2019 at 02:17:44 AM) (10 of 19) [CRLA-934/2009] was asking Omi @ Roop Singh to return the amount upon which accused asked her to come at 8:00 PM. Exact words stated by witness are:-
"eSa xsV ds lgkjs gh Fkk] jkeifr dg jgh Fkh fd vkseh ls fd esjs iSls nks rks dgk fd vkB cts vk tkuk tc ns nqaxkA jkeifr lkr&vkB cts pyh xbZA gqDdk ih jgk Fkk rc vkSj dksbZ ugha vk;kA"
Lichhman @ Laxmi Narain (P.W.9) was confronted with his statement Exhibit-D/4 recorded under Section 161 Cr.P.C. This witness admitted in court that above facts were not so stated in statement Exhibit-D/4 recorded under Section 161 Cr.P.C.. We reproduce following portion from his cross-examination as under:-
"eSaus f'koky; ls vkus okyh ckr fy[kkbZ Fkh] izn'kZ Mh&4 esa D;ksa ugha fy[kk irk ughaA eSua s xsV ij [kMk gksdj lquus dh ckr iqfyl dks crk nh FkhA izn'kZ Mh&4 esa D;ksa ugha gS] eq>s irk ugha gSA vkB cts dk ?kj vkus dk vkseh us dgk Fkk ;g ckr eSus crkbZ Fkh izn'kZ Mh&4 es D;ks ugha gS] irk ugha gSA ;g lgh gS fd eSa dkuks ls de lqurk gwW vkSj vkW[kksa ls de fn[kkbZ nsrk gSA fn[krk rks [kwc gS ysfdu de fn[krk gSA"
Lichhman @ Laxmi Narain (P.W.9) is not only hard of hearing but also having weak eye-sight. The disabilities suffered by the witness Lichhman @ Laxmi Narain (P.W.9) who is aged eighty years make his version given in court for first time on 3.2.2007 after about eleven months doubtful. We may emphasize here that the occurrence had taken place on the intervening night of 13.7.2006 and 14.7.2006. Statement Exhibit-D/4 under Section 161 Cr.P.C. of Lichhman @ Laxmi Narain (P.W.9) was recorded on 28.7.2006 after fourteen days of occurrence. Surprisingly said (Downloaded on 28/06/2019 at 02:17:44 AM) (11 of 19) [CRLA-934/2009] statement Exhibit-D/4 is silent qua facts stated by the witness in his examination-in-chief which was recorded on 3.2.2007.
Therefore, we cannot place implicit reliance upon the testimony of Kumari Nirma (P.W.8) and Pinky (P.W.21) for the reasons that (a) their statements were recorded on the next date of occurrence; (b) the above facts were not narrated by Latoor (P.W.12) in the written report (Exhibit-P/1); (c) the witnesses are more interested to absolve father and his brothers and aunts; (d) there is no assuring circumstance with us that even if the deceased Rampati had left the house, she had met the accused.
We have already given our reasons to discard testimony of Lichhman @ Laxmi Narain (P.W.9).
Now, we shall deal with the evidence of recovery. Kishore Singh (P.W.1) being investigating officer in the court deposed that accused Omi @ Roop Singh was arrested on 31.7.2006 vide arrest memo Exhibit-P/13. It is stated that the accused suffered a disclosure statement (Exhibit-P/14) that he had kept one Darant (Sickle) concealed around the Well near the house of the accused and he can get the same recovered. It is case of the prosecution that in pursuance of disclosure statement (Exhibit-P/14), the accused in presence of Sitaram Jat (P.W.2) and Moti Lal (P.W.3) got recovered Darant (Sickle) vide memo Exhibit- P/15).
The further case of the prosecution is that on 3.8.2006, accused made a disclosure statement (Exhibit-P/17) and stated that he can get one silver anklet recovered from the shop of jeweler to whom he had sold the same for sale consideration of Rs.6200/-. The accused, in pursuance of disclosure statement (Exhibit-P/17) got recovered silver anklet from the shop of (Downloaded on 28/06/2019 at 02:17:44 AM) (12 of 19) [CRLA-934/2009] Goldsmith Hariom Khandelwal (P.W.4). It is further case of the prosecution that on 4.8.2006, the accused made disclosure statement (Exhibit-P/20) and stated that he can get receipt and bill recovered, whereby he had sold the silver anklet. It is further case of the prosecution that in pursuance of disclosure statement (Exhibit-P/20), the accused vide Exhibit-P/21 got recovered Receipt and bills in presence of Ramnarayan (P.W.16) and Lakhan Singh (P.W.17).
It is stated that after the accused was arrested on 31.7.2006, he on 1.8.2006, 3.8.2006, 4.8.2006 and again on 6.8.2006 made another disclosure statement (Exhibit-P/23) under Section 27 of Indian Evidence Act and in pursuance thereof got recovered blood stained shirt and a pair of shoes vide recovery memo Exhibit-P/24 in presence of Lakhan Singh (P.W.17) and Rajesh Singh (P.W.19).
Sitaram (P.W.2) disclosed that in his presence the police had recovered silver anklet vide memo Exhibit-P/9 which the deceased Rampati was wearing. This witness in the court stated that before cremation, the silver anklet was removed from the dead body.
To similar effect is the statement made by Moti Lal (P.W.3).
Hariom Khandelwal (P.W.4) in the court stated that the accused came to his shop and sold one silver anklet for sale consideration of Rs.6200/- and he had issued a receipt thereof and bill.
The prosecution recovered one silver anklet from the shop of Hariom Khandelwal (P.W.4). The case of the prosecution is that the silver anklet recovered from the shop of Hariom (Downloaded on 28/06/2019 at 02:17:44 AM) (13 of 19) [CRLA-934/2009] Khandelwal (P.W.4) and silver anklet taken from the dead body both were presented before the Omprakash (P.W.11) Tehsildar and same were identified by Lallu Ram husband of Rampati deceased.
Lallu Ram himself was accused. It was incumbent for the prosecution to have got identified the silver anklets from the Latoor (P.W.12) brother of the deceased with whom Rampati had stayed for eight months. Even we ignore this fact, number of similar silver anklets were not mixed up. Omprakash (P.W.11) in the court has stated that police took one silver anklet from the packet and brought another anklet and both were identified. We shall reproduce the following portion from the cross-examination of Omprakash (P.W.11), as under:-
"iSfdV iqfyl okyk yk;k Fkk yYyw dks ckn esa cqyk;k FkkA iSfdV ij lhy Fkh ij mldk uke ugh cryk ldrk gwWA uk gh eSaus f'kuk[rh eseks esa bldk mYys[k fd;k gSA feyk;k tkus okyk dMk gwcgw mlds tSlk FkkA nwljk dMk Hkh iqfyl okys yk;s FksA feykus okyk dMk iqfyl okys [kqyk gh ysdj vk;s FksA ;g ckr lgh gS fd f'kuk[rh dh eseks izn'kZih&26 esjs gLrys[k esa ugh gS cfYd iqfyl okys us esjs funsZ'ku esa fy[kk FkkA f'kuk[rh ds ckn ml dMs dks esjs lkeus iqfyl okyks us iqfyl dh lhy lslhy dj fn;k FkkA lhy ds ckn esjs gLrk{kj djuk o esjs eksgj yxkuk eq>dks ;kn ugh gSA"
Now, the testimony of the witnesses to the recovery are also required to be looked at. Sita Ram (P.W.2) in court deposed as under:-
"iqfyl us esjs lkeus eqfYte dks fxj¶rkj fd;k Fkk vkSj esjs xk¡o esa yk;h FkhA eqfYte us Lo;a ds dqvka ls dMk fudky dj fn;k FkkA"
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(14 of 19) [CRLA-934/2009] Therefore, as per testimony of Sita Ram (P.W.2) accused took silver anklet out of Well, thus same make recovery of one silver anklet doubtful. Moti Lal (P.W.3) in cross-examination stated as under:-
";g ckr lgh gS fd iqfyl us lkjh fy[kki<h tks QnksZ dh dh gS og Fkkus ij dh gSA lHkh QnksZ ij esjs Fkkus ij gh gLrk{kj djok fy;s FksA gR;k dk gedks irk ugh funku ckn esa gqvk Fkk 'kq: esa rks ,slk izrhr gqvk Fkk fd ?kj okyksa us ekjh gksxhA"
Thus, the case of the prosecution that one silver anklet recovered from the shop of Hariom Khandelwal (P.W.4) and another from the dead body both were identified, is not sufficient to connect the accused with the offence, as another silver anklet was brought by the police, in a sealed packet. We cannot rule out that both the silver anklets were taken from the shop of jeweler. A perusal of the inquest (Exhibit-P/4) also reveals that the deceased Rampati was wearing Gold articles. If the motive of the accused was to take away silver anklet, he should have taken both silver anklets, also alongwith the gold ornaments.
In the present case, Hukum Singh (P.W.7) has turned hostile to the prosecution and he has not proved the evidence of last seen.
Dhara Singh (P.W.5) who was examined regarding conduct of the accused has also turned hostile to the prosecution. This witness was sought to be examined to prove the fact that the accused had inquired from him regarding the outcome of investigation. This witness in the court specifically stated that he had not received any phone call from the appellant. (Downloaded on 28/06/2019 at 02:17:44 AM)
(15 of 19) [CRLA-934/2009] We have also held recovery of silver anklet from the accused as doubtful as it was also not stated in the written report (Exhibit-P/1) and FIR (Exhibit-P/2) that silver anklets were found missing.
On the basis of mere recovery of weapon of offence Darant (Sickle), blood stained shirt and a pair of shoes, we cannot connect the accused with the offence as no report of Forensic Science Laboratory has been proved on record. We are informed that no report was received from the FSL. Though articles were received by FSL vide Exhibit-P/30 acknowledgment receipt. Furthermore, Moti lal (P.W.3) in cross-examination stated as under:-
"njkWr geus fudkyk Fkk vkseh us ugh fudkykA"
Moti Lal (P.W.3) also admitted that " ;g ckr lgh gS fd njkWr izR;sd tehankj ds ?kj ij feyrk gSA".
Recovery of receipt and bill of the sale of silver anklet will also not connect the accused with the offence as from mere recovery of ornaments we cannot infer that the accused had committed murder.
In the present case, the prosecution has failed to complete the chain of circumstances to arrive at the conclusion that the offence has been committed by the appellant Omi @ Roop Singh alone and by none else. Consequently, as a matter of abundant caution, we shall extend benefit of doubt to the accused appellant.
As a result of above discussion, the present appeal is accepted and the conviction and sentence awarded by the trial court upon the appellant is set aside and he is acquitted of the charges.
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(16 of 19) [CRLA-934/2009] In view of above, we order that the appellant Omi @ Roop Singh be released forthwith, if in custody and not required in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Omi @ Roop Singh is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and surety bond of the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant Omi @ Roop Singh on receipt of notice thereof, shall appear before the Supreme Court.
D.B. Criminal Revision Petition No. 1102/2009 The present revision petition has been preferred by Mohar Pal father of the deceased Rampati to assail the acquittal of Lallu Ram husband of deceased, Bhoor Singh and Jagdish Prasad @ Jagan Prasad two brothers of Lallu Ram.
Vide a separate order of even date passed in D.B. Cr. Appeal No. 934/2009, we have recorded acquittal of Omi @ Roop Singh.
No State appeal has been filed to assail the acquittal of accused respondents. The prosecution propounded two contradictory versions; one version was that the deceased Rampati was murdered by Omi @ Roop Singh. In earlier part of our judgment D.B. Cr. Appeal No. 934/2009, we have given reasons to record acquittal of Omi @ Roop Singh. (Downloaded on 28/06/2019 at 02:17:44 AM)
(17 of 19) [CRLA-934/2009] So far accused respondents are concerned, except the testimony of relations to the effect that accused respondents may have committed murder, no positive evidence has been led by the prosecution to prove their involvement. Suspicion however, strong cannot take place of proof.
Supreme Court in case of Mahendra Partap Singh vs. Sarju Singh and another [AIR 1968 Supreme Court 707], relying upon D.Stephens vs. Nosibolla, [AIR 1951 SC 196] has specifically held that in absence of State appeal, court ought not to disturb the acquittal, in the revision filed by the complainant and the revisional court should be hesitant to cause interference.
Reference can be made to the judgment rendered by the Supreme Court which was relied by Division Bench of this Court to which one of us (Kanwaljit Singh Ahluwalia,J.) was a member, in the case of D.B. Criminal Revision Petition No. 521/2006, Dharm Singh vs. The State of Rajasthan & Ors, decided on 10.12.2014, wherein it was noted as under:-
"9.The Hon'ble Supreme Court in Mahendra Partap Singh vs. Sarju Singh and another [AIR 1968 Supreme Court 707], relying upon D.Stephens vs. Nosibolla, [AIR 1951 SC 196], has held as under:-
"only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 (AIR 1951 SC
316), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the (Downloaded on 28/06/2019 at 02:17:44 AM) (18 of 19) [CRLA-934/2009] High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re- weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."
10.In Akalu Ahir v. Ramdeo Ram, AIR 1973 Supreme Court 2145, the Hon'ble apex Court observed as under:-
"This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised only in exceptional cases when "there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice." In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;(Downloaded on 28/06/2019 at 02:17:44 AM)
(19 of 19) [CRLA-934/2009]
(iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it.
"In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."
11. Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444.
12. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and others vs. Jagannath, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. State of Bihar, AIR 2002 (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal."
After going through evidence, impugned judgment and the law laid by the Supreme Court, we find no reason to cause interference and hence, the present revision petition is dismissed. (BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J Mak/-
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