Rajasthan High Court - Jodhpur
Bhimsen vs State Of Rajasthan on 28 May, 2024
Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit
[2024:RJ-JD:22912-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 209/1991
Bhimsen
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Ms. Shrestha Mathur, Amicus Curiae
For Respondent(s) : Mr. B.R. Bishnoi, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Judgment Reserved on 09/05/2024 Pronounced on 28/05/2024
1. This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:
"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused-appellant may be acquitted of all the charges levelled against him."
2. The matter pertains to an incident which occurred in the year 1989 and the present appeal has been pending since the year 1991.
3. The accused-appellants laid a challenge to the judgment of conviction and order of sentence dated 30.05.1991 passed by the learned Additional District & Sessions, Raisinghnagar, in Sessions Case 48/89 (State of Rajasthan Vs. Bhimsen), whereby the present accused-appellant has been convicted and sentenced as below:
(Downloaded on 28/05/2024 at 08:55:03 PM)
[2024:RJ-JD:22912-DB] (2 of 17) [CRLA-209/1991] Offence under Sentence Fine Section 302 IPC Life imprisonment Rs.2000/-, in default of which, to undergo further one year R.I.
4. As the pleaded facts and the record would reveal, on 02.02.1989 at around 5:00 p.m., one Ramkaran (complainant) submitted an information before Police Station, Gharsana, stating that marriage of his daughter (Meera) was solemnized with Bheemsen (accused-appellant) about two and a half years ago. It was further stated that about 8-9 days ago (prior to the date of information), the complainant's daughter and her husband (accused-appellant) started living on the complainant's land i.e. Chak No.2 K.M., and that, the complainant had also provided them with a constructed house on the said land. The complainant's son Onkar (PW.7) with his family was also residing near the place of residence of the complainant's daughter.
4.1. The complainant also stated that on 02.02.1989 at around 9:00 a.m., his son and son-in-law (accused-appellant), came to the place of the complainant at Chak No.9 G.D., and informed the complainant that his daughter-Meera had left the previous night at around 10:00-11:00 p.m. from Dhani, and further asked the complainant whether Meera had visited him, whereupon the complainant answered in the negative. Thereupon, the complainant sent his wife-Badhu, one Budhram alongwith his (complainant's) son Onkar and the son-in-law (accused-appellant) (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (3 of 17) [CRLA-209/1991] to Chak No.2 K.M., in search of his daughter and also told the said persons to make enquiry about Meera in the neighbourhood. 4.2. Thereafter, while the complainant himself and his another son (Mahipal) got ready to leave the place to ascertain the whereabouts of Meera, the complainant's son-in-law (Chaanan) and Budhram arrived, and informed the complainant that a dead body had been found floating in Diggi; thereupon, the complainant immediately rushed towards the police station and stated that he was not aware as to how his daughter Meera died by falling into the Diggi, and on report, the same was taken by the police under Section 174 Cr.P.C. (Ex.D-3).
5. On the next day, the complainant a written report (Ex.P-1), whereupon, the police registered an FIR bearing FIR No.4/89 and the investigation accordingly commenced thereafter. After investigation, the police filed charge-sheet against the accused- appellant for the offence under Section 302 IPC before the competent court.
6. The learned Trial Court framed the charge against the accused-appellant for the offence under Section 302 IPC; the said charge were read over to the accused-appellant; the accused- appellant denied the same, and sought due trial, and the trial accordingly commenced thereafter before the learned Trial Court.
7. During the course of trial, the evidence of 12 prosecution witnesses were recorded and 15 documents were exhibited on behalf of the prosecution, whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which the accused- (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (4 of 17) [CRLA-209/1991] appellant pleaded innocence and his false implication in the criminal case in question.
8. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused- appellant, as above, vide the impugned judgment of conviction and order of sentence dated 30.05.1991.
9. Learned counsel for the accused-appellant submitted that there is no eye witness to the incident in question and the entire prosecution story is based on circumstantial evidence, which could not conclusively lead to substantiation of the fact that the appellant had in fact caused murder of the Meera (deceased). 9.1. It was further submitted that there is also no independent and/or public witness to the incident in question; though at the place of incident in question, there were houses in the neighbourhood, but none of the persons has been produced as prosecution witness for examination before the learned Trial Court. 9.2. It was also submitted that the learned Trial Court relied on the statements of the P.W.1 and PW.2, who had stated that the accused-appellant made a confession that he committed the murder of the deceased, which is clearly an extra judicial confession of the accused-appellant; P.W.1 & P.W.2 are relatives of the deceased, and therefore, the said extra judicial confession is a weak piece of the evidence. In support of such submission, learned counsel relied upon the judgment rendered by the Hon'ble Apex Court in the case of Pawan Kumar Chourasia Vs State of (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (5 of 17) [CRLA-209/1991] Bihar (Criminal Appeal No. 2230/2010, decided on 14.03.2023).
9.3. Learned counsel further submitted that the learned Trial Court relied on the last seen theory for convicting the accused-appellant, which is not applicable in present case, because the deceased left her house at around 10 P.M. and the time of death has also not been conclusively ascertained; the gap between the deceased leaving her house and the time of her death are apparently unexplained. In support of such submission, learned counsel relied upon the judgment rendered by the Hon'ble Apex Court in the case of R. Sreenivasa Vs State of Karnataka (Criminal Appeal No. 859/2011, decided on 06.07.2023). 9.4. Learned counsel also submitted that at the time of inquest report under Section 174 Cr.P.C given by Ramkaran (father of the deceased) on 02.02.1989, he did not level any allegation against the accused-appellant, but on the next day, he had submitted the written report (EX.P/1), wherein he had stated that accused- appellant caused the murder of the deceased, therefore, it create doubt on prosecution story.
9.5. Learned counsel further submitted that as per the prosecution story, the footprints of footwear of the accused- appellant at the place of incident clearly shows that immediately before the deceased disappeared, the accused-appellant was looking for her, and that, the same became one of the basis for conviction of the accused-appellant, but it is apparent on the face of the record that no forensic examination was done in this regard by the concerned police authority, and therefore, the said aspect (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (6 of 17) [CRLA-209/1991] of the prosecution cannot be said to be a reliable and cogent piece of evidence for convicting the accused-appellant. 9.6. It was also submitted that the lack of motive to commit the crime in question is clearly discernible on the face of record, because the prosecution story regarding the matrimonial discord between the deceased and accused-appellant has not been established, since at the time of death, the deceased was undergoing four months' pregnancy. In support of such submission, learned counsel relied upon the judgment rendered by the Hon'ble Apex Court in the case of Nandu Singh Vs State of Madhya Pradesh (Criminal Appeal No. 285/2022, decided on 25.02.2022).
9.7. It was further submitted that no injury was found on the body of the deceased and the death was caused due to strangulation by using cloth. It was also submitted that after recovery of the said cloth, the same was not sent for any forensic examination. Therefore, as per learned counsel, the learned Trial Court failed to appreciate that the prosecution could not prove its case, beyond all reasonable doubts, that the offence in question was committed by the accused-appellant.
9.8. In support of such submissions, learned counsel relied upon the judgments rendered by the Hon'ble Division Bench of the Hon'ble High Court of Delhi in the case of State Vs Sohan Lal & Ors (CRL.L.P. 63/2011, decided on 01.04.2011) and Ravi Kumar @ Sonu Ors. Vs State (CRL.A. 444/2010, decided on 15.05.2013).
(Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (7 of 17) [CRLA-209/1991]
10. On the other hand, the learned Public Prosecutor, opposed the aforesaid submissions made on behalf of the appellant, while submitting that the entire case of the prosecution is based on circumstantial evidence, and a perusal of the written report (Ex.P/
1) given by the Ramkaran (P.W.3) makes it amply clear that the accused-appellant caused the murder of the deceased. 10.1. It was further submitted that the appellant made the extra judicial confession before P.W.1- Brij Lal & PW.2-Om Prakash and the said confession is sufficient to conclude that the murder of the deceased was caused by the accused-appellant, due to relation of the deceased outside her marriage. It was also submitted that the footprints of the footwear of accused-appellant were found at the time, when the body of the deceased was recovered from the place of the incident in question.
10.2. It was further submitted that after arrest of the accused- appellant, on his own information, cloth used to commit the crime in question was recovered, and therefore, on that count also, the entire chain of evidence is consistent and strong. 10.3. It was also submitted that the deceased, prior to her death, informed the prosecution witnesses, namely, P.W. 5 & P.W.6 that accused-appellant would kill her, and therefore, the conduct and motive of the accused-appellant, falls under Section 8 of the Indian Evidence Act, 1872. It was thus submitted that the learned Trial Court had rightly convicted the accused-appellant under Section 302 IPC.
11. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (8 of 17) [CRLA-209/1991]
12. This Court observes that the accused-appellant was convicted for the offence punishable under Section 302 IPC by the learned Trial Court vide the impugned judgment, and in the present case, there was no eye witness to the incident in question, and the entire prosecution case is based on the circumstantial evidence.
13. This Court further observes that as per the statements of P.W.3- Ramkaran (complainant-father of the deceased), Onkar (PW.7) came, at the relevant time, and told him that the deceased was not in her house i.e. missing; after some time, one Dhanaram came and told the complainant that the deceased died and her corpse was lying in the Diggi; whereupon he (the complainant) submitted the written report, stating therein that the accused- appellant caused the death of his daughter (deceased), and that, prior to her death, the deceased told the complainant that she would be killed by the accused-appellant.
13.1. This Court also observes that as per the written report (Ex.P/1), P.W.3 did not state that his daughter (deceased) told him that the accused-appellant would kill her, and PW.3 filed the written report under Section 174 Cr.P.C. (Ex.D-3) but the same was denied by him at a later stage. P.W.3 also stated that the accused-appellant was not present, either at the time of registration of the FIR nor on any other occasion, but PW.4- Chanan stated that the accused-appellant also went to the police station, and when the police authority reached the place of incident, at that time as well, the accused-appellant was there. (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (9 of 17) [CRLA-209/1991] Therefore, there are apparent contradictions in the depositions made by the said two witnesses.
14. This Court further observes that P.W.1-Brij Lal and P.W.2 Om Prakash stated about making of extra judicial confession before them by the accused-appellant. P.W. 1 stated that the accused- appellant came to his house and stated that he (accused- appellant) killed the deceased, while she was sleeping, by put the cloth on her face, and thereafter, the accused-appellant buried her body into a pit. The said witness also stated that the accused- appellant told him that he committed a mistake by doing such act, and begged the said witness to save him (accused-appellant) from the consequences of the said act; the said confession was directly conveyed to the police authorities. P.W.2 also made similar deposition.
14.1. This Court also observes that P.W.1 & P.W.2 stated that they directly conveyed the said extra judicial confession of the accused- appellant to the police, but P.W. 3 stated that PW.1 & 2 at the first instance, informed the said witnesses about such confession of the accused-appellant. Both the said witnesses are relatives of the complainant (PW.3). This Court further observes that the said extra judicial confession was recorded after a delay of one month, and therefore, such deposition, in its entirety, rendered the same as a weak piece of evidence, and on that count also, the accused- appellant could not have been convicted only on the basis of the same, in view of the precedent law laid down by the Hon'ble Apex Court in the case of Moorthy Vs State of Tamil Nadu (Criminal (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (10 of 17) [CRLA-209/1991] Appeal No. 975/2011, decided on 18.08.2023), relevant portion whereof is reproduced as hereunder:
"6. Firstly, we will deal with the prosecution case about the extrajudicial confession. As regards extrajudicial confession, the law has been laid down by this Court in the case of Pawan Kumar Chourasia v. State of Bihar, 2023 SCC OnLine SC 259. In paragraph 5 it is held thus :
"5. As far as extrajudicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith.. . . . . "
10. Extrajudicial confession is always a weak piece of evidence and in this case, for the reasons which we have recorded earlier, there is serious doubt about the genuineness of the prosecution case regarding the extrajudicial confession. Therefore, the prosecution case about the extra judicial confession does not deserve acceptance."
15. This Court also observes that P.W.8- Dr. Satyaprakash and P.W.9-Dr. Ishwarchand, who had conducted the postmortem of body of the deceased, stated that the deceased died due to suffocation, and also stated that apart therefrom, there is no injury found on the body of the deceased. The said witnesses also deposed that the accused-appellant identified the body of the deceased; therefore, from the said deposition as well, it is clear (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (11 of 17) [CRLA-209/1991] that the accused-appellant was present at all times, during the whole process, following the death of the deceased. This Court further observes that as per the prosecution story, at the place of incident, dragging marks of the body of the deceased were there, but not a single injury was found on the body of the deceased.
16. This Court also observes that the prosecution witnesses stated that at the place of the incident, there were marks indicating of footprints of footwear of the accused-appellant, when the body of the deceased was found at the said place; at that time, the footwear were recovered from the accused-appellant by the PW.11-Sobhag Singh (S.I), and as per his statement, no footprints were taken in his presence. This Court further observes that as per the prosecution story when they found body of the deceased, at that time, the neighbours also reached the place of incident, as a result whereof, the footprints may also be of some other persons.
16.1. This Court also observes that there might be a possibility, that the accused-appellant, while he was searching for the deceased, the previous day, when he visited the place in question, his footprints might have been there, and therefore, the alleged presence of footprints of the accused-appellant at the place in question was not a sufficient and reliable piece of evidence to convict him for the offence of murder.
17. This Court further observes that the prosecution witnesses stated that the deceased, prior to her death, informed them that she would be killed by the accused-appellant, but no deposition was made by them, as to the reason for the same, so also (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (12 of 17) [CRLA-209/1991] whether any intention was on the part of the accused-appellant for committing such an act; even if it is believed that the deceased, prior to her death, gave such an information to the witnesses, in that case, it was expected of the family members to have taken the necessary precautions, to prevent the alleged act on the part of the accused-appellant; taking of such precautions are also not discernible from the record, and thus, the said deposition of the witnesses is doubtful, and thus, it cannot be believed that the accused-appellant was carrying any intention to commit murder of the deceased.
18. This Court also observes that as per the prosecution, they have recovered the cloth which was used to commit the crime in question, but the said cloth was not sent for the FSL examination to ascertain the truth, and therefore, on that count also, the entire prosecution story becomes doubtful, apart from material contradictions in the statements of the prosecution witnesses.
19. This Court further observes that the present case is based on circumstantial evidence, and as per chain of the circumstantial evidence, it is expedient to have a look at the case laws pertaining thereto.
19.1. This Court is conscious of the judgment rendered by the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, relevant portion whereof is reproduced as hereunder-:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(Downloaded on 28/05/2024 at 08:55:03 PM)
[2024:RJ-JD:22912-DB] (13 of 17) [CRLA-209/1991] (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved"
and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
19.2. This Court is further conscious of the judgment rendered by the Hon'ble Apex Court in the case of Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, relevant portion whereof is reproduced as hereunder:-
"Circumstantial evidence "(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(Downloaded on 28/05/2024 at 08:55:03 PM)
[2024:RJ-JD:22912-DB] (14 of 17) [CRLA-209/1991]
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
20. This Court also observes that the following contradictions and documents cannot escape the scrutiny in the present adjudication, as per the precedent laws pertaining to circumstantial evidence:
(a) The last seen theory, i.e. the deceased was seen with the accused-appellant, and the last seen evidence given by P.W.6-
Chawali, but the same did not come in the statements of the prosecution witnesses, and it was only stated that the accused- appellant was searching for her, and there is nothing on record to prove the said last seen theory.
(b) The contradiction in the statement of PW.3 (complainant) regarding the presence of the accused-appellant as well as prior dispute between the accused-appellant and deceased.
(c) The contradiction regarding the extra-judicial confession of the accused-appellant as per the statements of PW.1, P.W 2, when seen conjointly with the statement of PW.3.
(d) The footprints of footwear of the appellant itself created a serious doubt about the prosecution story, and PW.11 (S.I.) stated that in his presence, the said footprints were not collected. (Downloaded on 28/05/2024 at 08:55:03 PM) [2024:RJ-JD:22912-DB] (15 of 17) [CRLA-209/1991]
(e) As per the prosecution, though the cloth which was used to cause death of the deceased was recovered, but the same was not sent for FSL examination to unearth the truth.
21. This Court further observes that where the conviction is solely based on the circumstantial evidence, then all the circumstances surrounding the case must be sufficient to arrive at the conclusion that the accused has committed the offence in question, but in the present case, a lacuna so discernible on the face of the record, makes the story of the prosecution doubtful, as the same does not fulfill the requirements of such conviction as laid down by the Hon'ble Apex Court in the aforementioned precedent laws pertaining to the circumstantial evidence.
22. This Court also observes that when the judgment of conviction is challenged before the Appellate Court, a proper appreciation of the evidence recorded by the learned Trial Court has to be made. The power of the Appellate Court is provided under Section 386 of Cr.PC, which reads as under:-
"386. Powers of the Appellate Court.--
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."(Downloaded on 28/05/2024 at 08:55:03 PM)
[2024:RJ-JD:22912-DB] (16 of 17) [CRLA-209/1991] 22.1. This Court further observes that as provided under Section 386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the findings of the conviction, so as to acquit the accused.
23. Now, as regards, the scope of interference in the judgment of conviction passed by the learned Trial Court, it is considered appropriate to reproduce the relevant portion of the judgment rendered by the Hon'ble Apex Court in case of Kamlesh Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as hereunder:-
"10. In Rama v. State of Rajasthan [(2002) 4 SCC 571:
2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4) "4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."
12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter." (Downloaded on 28/05/2024 at 08:55:04 PM)
[2024:RJ-JD:22912-DB] (17 of 17) [CRLA-209/1991]
24. This Court further observes that the material contradictions in the prosecution story, as in the present case, always make the accused entitled for the relief in the form of reversal of the finding of conviction recorded by the learned Trial Court. This Court also observes that there are reliable and cogent evidence on record that the accused-appellant's conviction deserves to be reversed, i.e. from conviction to acquittal, as provided under Section 386(b)
(i) of Cr.P.C "reverse the finding and sentence and acquit".
25. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed. Accordingly, while quashing and setting aside the conviction and order of sentence dated 30.05.1991 passed by the learned Additional District & Sessions, Raisinghnagar, in Sessions Case 48/89 (State of Rajasthan Vs. Bheemsen), the appellant is acquitted of the offence under Section 302 IPC. The appellant was granted bail vide order dated 25.07.1991 passed by a Coordinate Bench of this Hon'ble Court in the instant appeal. His bail bonds stand discharged. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
26. This Court is thankful to Ms. Shreshtha Mathur, who has rendered her assistance as Amicus Curiae, on behalf of the accused-appellant, in the present adjudication. (YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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