Rajasthan High Court - Jaipur
State Of Rajasthan vs Harveer And Anr on 8 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Leave To Appeal No. 195/2014
State Of Rajasthan through P.P.
----Appellant
Versus
1. Harveer S/o Balram, B/c Kumhar, R/o Peepalkheda Police
Station, Gopal Garh, District Bharatpur.
2. Bhagwat S/o Manohar Lal B/c Kumhar, R/o Khandewala Police
Station Pahadi District Bharatpur
----Respondents
For Appellant(s) : Mr. Javed Chaudhary, P.P.
For Respondent(s) : Mr. Manish Gupta Adv.
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
08/07/2019
Respondents had faced trial qua offence punishable under
Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred
to as 'IPC') in FIR No.145 dated 13.05.2012 registered at Police
Station Khairthal, District Alwar.
Prosecution story, in brief, is that Harkesh and Ashiq were
working on Truck No. RJ-02-GA-4797 owned by Dilip Agarwal as
conductor/driver respectively. On 13.05.2012 at about 6.00 p.m.,
dead body of Harkesh and Ashiq were recovered near Khairthal in
the truck. On the basis of the statement of the complainant,
formal FIR was registered.
After completion of investigation and necessary formalities,
challan was presented against the respondents.
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Trial court vide impugned judgment dated 02.04.2014
ordered the acquittal of the respondents with regard to the
charges framed against them under Section 302/34 IPC, Hence,
the present appeal by the State.
We have heard learned State counsel and learned counsel for
respondents No.1 and 2 and have gone through the record
available on the file carefully.
Present case relates to murder of Harkesh and Ashiq. Case
relsts on circumstantial evidence.
It has been held by the Hon'ble Supreme Court in case of
Brajendrasingh vs. State of Madhya Pradesh AIR 2012
Supreme Court 1552, as under:-
"There is no doubt that it is not a case of
direct evidence but the conviction of the accused is
founded on circumstantial evidence. It is a settled
principle of law that the prosecution has to satisfy
certain conditions before a conviction based on
circumstantial evidence can be sustained. The
circumstances from which the conclusion of guilt is
to be drawn should be fully established and should
also be consistent with only one hypothesis, i.e.
the guilt of the accused. The circumstances should
be conclusive and proved by the prosecution. There
must be a chain of events so complete so as not to
leave any substantial doubt in the mind of the
Court. Irresistibly, the evidence should lead to the
conclusion inconsistent with the innocence of the
accused and the only possibility that the accused
has committed the crime. To put it simply, the
circumstances forming the chain of events should
be proved and they should cumulatively point
towards the guilt of the accused alone. In such
circumstances, the inference of guilt can be
justified only when all the incriminating facts and
circumstances are found to be incompatible with
the innocence of the accused or the guilt of any
other person. Furthermore, the rule which needs to
be observed by the Court while dealing with the
cases of circumstantial evidence is that the best
evidence must be adduced which the nature of the
case admits. The circumstances have to be
examined cumulatively. The Court has to examine
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the complete chain of events and then see whether
all the material facts sought to be established by
the prosecution to bring home the guilt of the
accused, have been proved beyond reasonable
doubt. It has to be kept in mind that all these
principles are based upon one basic cannon of our
criminal jurisprudence that the accused is innocent
till proven guilty and that the accused is entitled to
a just and fair trial."
It has also been held by the Hon'ble Supreme Court in
Bachan Singh vs. State of Punjab 1980 (2) SCC 684, as
under:-
"In the light of the above conspectus, we will now
consider the effect of the aforesaid legislative
changes on the authority and efficacy of the
propositions laid down by this Court in Jagmohan's
case. These propositions may be summed up as
under:
(i) The general legislative policy that underlies the
structure of our criminal law, principally contained
in the Indian Penal Code and the Criminal
Procedure Code, is to define an offence with
sufficient clarity and to prescribe only the
maximum punishment therefore, and to allow a
very wide discretion to the Judge in the matter of
fixing the degree of punishment. With the solitary
exception of Section 303, the same policy
permeates Section 302 and some other sections of
the Penal Code, where me maximum punishment is
the death penalty.
(ii) (a) No exhaustive enumeration of aggravating
or mitigating circumstances which should be
considered when sentencing an offender, is
possible. "The infinite variety of cases and facets to
each case would make general standards either
meaningless 'boiler plate' or a statement of the
obvious that no Jury (Judge) would need."
(Referred to McGantha v. California (1971) 402 US
183 (b) The impossibility of laying down standards
is at the very core of the criminal law as
administered in India which invests the Judges with
a very wide discretion in the matter of fixing the
degree of punishment.
(iii) The view taken by the plurality in Furman v.
Georgia decided by the Supreme Court of the
United States, to the effect, that a law which gives
uncontrolled and un-guided discretion to the Jury
(or the Judge) to choose arbitrarily between a
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sentence of death and imprisonment for a capital
offence, violates the Eighth Amendment, is not
applicable in India. We do not have in out
Constitution any provision like the Eighth
Amendment, nor are we at liberty to apply the test
of reasonableness with the freedom with which the
Judges of the Supreme Court of America are
accustomed to apply "the due process" clause.
There are grave doubts about the expediency of
transplanting western experience in our country.
Social conditions are different and so also the
general intellectual level. Arguments which would
be valid in respect of one area of the world may
not hold good in respect of another area.
(iv) (a) This discretion in the matter of sentence is
to be exercised by the Judge judicially, after
balancing all the aggravating and mitigating
circumstances of the crime.
(b) The discretion is liable to be corrected by
superior courts. The exercise of judicial discretion
on well-recognised principles is, in the final
analysis, the safest possible safeguard for the
accused.
In view of the above, it will be impossible to
say that there would be at all any discrimination,
since crime as crime may appear to be superficially
the same but the facts and circumstances of a
crime are widely different Thus considered, the
provision in Section 302, Penal Code is not
violative of Article 14 of the Constitution on the
ground that it confers on the Judges an un-guided
and uncontrolled discretion in the matter of
awarding capital punishment or imprisonment for
life.
(v) (a) Relevant facto and circumstances Impinging
on the nature and circumstances of the crime can
be brought before the Court at the pre-conviction
stage, notwithstanding the fact that no formal
procedure for producing evidence regarding such
facto and circumstances had been specifically
provided. When counsel addresses the Court with
regard to the character and standing of the
accused, they are duly considered by the Court
unless there is something in the evidence itself
which belies him or the Public Prosecutor
challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or (Downloaded on 30/08/2019 at 09:46:11 PM) (5 of 8) [CRLLA-195/2014] mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P. C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21."
Prosecution had relied upon the statements of witnesses PW-3 Prakash and PW-5 Abid. The said witnesses had allegedly seen the respondents in the company of the deceased prior to the incident. So far as PW-3 is concerned, although, he stated that he had identified the accused in an identification parade conducted during trial but he stated that he was unable to identify the accused in the court as they had grown beard. So far as PW-5 is concerned, he deposed that he had identified the accused in an identification parade, but the said witness has not specifically stated that on the day of incident, he had seen the deceased in the company of the accused/respondents.
In these circumstances, learned trial court rightly held that no reliance could be placed on the testimony of PW-3 and PW-5 to order the conviction of the respondents. Since, PW-3 and PW-5, star witnesses of the prosecution had failed to advance the prosecution case, learned trial court rightly held that the conviction of the respondents could not be based on the recovery of cash effected from them. It has been noticed by the trial court (Downloaded on 30/08/2019 at 09:46:11 PM) (6 of 8) [CRLLA-195/2014] that recovery of Rs.4,800/- from respondent No.1 and recovery of Rs.5,400/- from respondent No.2 were effected on 23.05.2012, although, the Investigating Officer has visited the spot of recovery on 22.05.2012 also. Moreover, there was no material on record to establish that the currency notes recovered from the accused were the same, which had been taken away by them from the truck-in- question. Learned trial court has further noticed that the armourer PW-15 in his cross-examination had deposed that he had not given any opinion as to whether any shot had been fired from the recovered country-made pistol. It has also been noticed by the trial court that no independent witnesses were examined with regard to the recoveries effected by the Investigating Officer from the truck-in-question.
Thus, in the present case, learned trial court rightly came to the conclusion that the prosecution had failed to complete the chain of circumstances leading to the guilt of the respondents and rule out the possibility of their innocence.
Hon'ble the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, has held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and (Downloaded on 30/08/2019 at 09:46:11 PM) (7 of 8) [CRLLA-195/2014] order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the (Downloaded on 30/08/2019 at 09:46:11 PM) (8 of 8) [CRLLA-195/2014] appellate court is competent to reverse the decision of the trial Court depending on the materials placed"
Hence, no ground for interference by this Court is made out. Dismissed.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Sanjay Kumawat-3
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