Rajasthan High Court - Jodhpur
Kalyan Singh & Anr vs State on 25 July, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 150 / 2010
1. Kalyan Singh s/O Sh. Prithvi Singh, by caste Rajput, R/o
Meghana Bas, District Hanumangarh
2. Raj Kumar Singh @ Peerdan Singh S/o Prithvi Singh, by
caste Rajput, R/o Aguna Bas, Meghana, District
Hanumangarh
[At present lodged in Central Jail at Hanumangarh]
----Appellants
Versus
State of Rajasthasn
----Respondent
Connected With
D.B. Criminal Revision No. 484 / 2010
Kan Singh son of Ganpat Singh, by caste Rajput, resident of
Agunabas Meghana, Tehsil Nohar, District Haumangarh
----Petitioner
Versus
1. State of Rajsthan
2. Sumer Singh son of Prthivi Singh, by caste Rajput, Resident
of Agunabas Meghana, Tehsil Nohar, District Hanumangarh
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Mahesh Bora, Sr. Advocate with
Mr. Nishant Bora and Mr. Arun Kumar
For Respondent(s) : Mr. Vishnu Kachhawaha, PP
Mr. GR Bhari, for the complainant
_____________________________________________________
(2 of 30)
[CRLA-150/2010]
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE INDERJEET SINGH Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas:
DATE OF JUDGMENT :: 25th July, 2017 The instant D.B. Cr. Appeal No.150/2010 has been filed by the appellants Kalyan Singh and Raj Kumar Singh @ Peerdan Singh under Section 374(2) of the Cr.P.C. against the judgment dated 12.3.2010 passed by the learned Addl. Sessions Judge No.2, Hanumangarh Headquarter Nohar in Sessions Case No.107/2007 (16/2007) whereby the learned trial court convicted the accused appellants Kalyan Singh and Raj Kumar Singh @ Peerdan Singh for the offence under Sections 302/34 and 201 IPC and acquitted the accused Sumer Singh from the charge levelled against him on the basis of circumstantial evidence.
As per facts of the case on 29.1.2007 ASI- Mahaveer Singh received telephonic message that in Gorkha Minor Canal, hands and legs of unidentified person are seen, after recording aforesaid telephonic information in Rojnamcha (Ex.P/67), ASI-Mahaveer Singh (PW--12), Medical Officer Dr. Vinod Chomwal and photographer went on spot and took in possession the parts of the body of unidentified person vide Ex.P/62. Again on 30.1.2007 an information was received from Dharmpal, Assistant of PHD Department that a body of person not having legs and hands is lying in the Diggi. The above information was recorded in Rojnamcha no.1575 at Police Station Nohar and SHO Ganesh (3 of 30) [CRLA-150/2010] Chandra Sharma, Amir Hussain, ASI, Lal Bahadur and Dr. Vinod Chomwal went on spot and recovered a body of person vide Ex.P/3, but no hands and legs were found on the body. Upon aforesaid information inquest report No.4/2007 was registered and during investigation at 5 places parts of body were recovered by the police and all the parts were taken in possession vide Ex.P/3, P/4, P/62 and P/17. During investigation of the inquest report the relative of the deceased PW--3 Kan Singh submitted a written report (Ex.P/6) at Police Station Nohar in which following information was given to the police, which reads as under:
**lsok esa Jheku Fkkuk vf/kdkjh iqfyl Fkkuk uksgj fo"k; % eqdnek ntZ djokus ckcr egksn;
fuosnu gS fd izkFkhZ ds ppsjk HkkbZ izHkw flag iq= eku flag tkfr jktiwr fuoklh es?kkuk fd dqynhiflag o lokbZ flag iq= Hkknj flag o egsUnz flag] egkohj flag iq= nqysflag jktiwr fuoklh es?kkuk ds lkFk pquko dks ysdj jaftl gksus ds dkj.k fnukad 26&1&07 dks mijksä us izHkw flag dks tku ls ekjus dh /kedh nh Fkh vkSj psrkouh nh dh ekSdk yxus ij le> ysaxs izHkwflag fnukad 28-1-07 dks lk;a 6 cts es?kkuk ls nqtkZuk lkbZfdy ij x;k Fkk ftlds ikl eksckby Qksu Hkh Fkk tks okil ?kj ugha yksVk es?kkuk o xkao nqtkZuk esa ekywe fd;k o eksckbZy Qksu ij Qksu djds irk djus dk iz;kl fd;k rks eksckbZy fd ?kUVh ugha cth gekjs xzke iapk;r ds ljiap ls feys rks crk;k fd izHkqflag fnukad 28-1-07 dks gh jk=h 8 cts pyk x;k Fkk ugha feyus ij geus fj'rsnkjh esa Hkh ekywe fd;k (4 of 30) [CRLA-150/2010] rks irk pyk fd yykfu;k ugj esa ,d vkneh dh yk'k feyh gS rc eSaus o esjs ifjokj ds lnL;ksa us uksgj vLirky esa yk'k ns[kh tks /kM+ Fkk o 'kjhj ds VwdM+s Fks ftUgsa ns[kdj eSaus esjs ppsjs HkkbZ izHkw flag yk'k ds VwdM+s gksuk ik;k ftldk flj xk;c Fkk fnukad 31&1&07 dks Hkh yykfu;k ugj esa 'kjhj ds nwljs VwdM+ksa dh ryk'k dh x;h o ugj dk ikuh #dok;k x;k vkt fnukad 1&2&07 dks iqfyl LVkQ o geus yykuh;k ugj ls ru ¼jksgh½ xksj [kkuk esa yrk'k fd;k rks 'kjhj ds ckdh VwdM+s feys ftlesa ,d gkFk esa iguk gqvk Nyk o gkFk esa cU/kh eksyh o ftle ij iguh gqbZ vUMj fo;j dks ns[kdj eSaus o izHkwflag ds ifjokj ds vU; lnL;ksa us izHkwflag S/o ekuflag jktiwr fuoklh es?kkuk gksuk igpku fd;k yk'k ds lHkh fgLls uksgj vLirky esa j[ks gSa ysfdu flj o 'kjhj ds igus diM+s xk;c gSa lokVj Hkwjk jax pkSdM+hnkj decy lQsn deht dkyh isUV o diM+s ds Hkwjs jax ds twrs gSa fnukad 28&1&07 dks dqynhi flag lokbZ flag egsUnz flag egkohj flag o nks vU; vkneh ftUgsa eSaus ugha igpkuk og jk=h dks vkB cts xkM+h ysdj nqtkZuk dh rjQ izHkwflag ds fiNs x;s Fks tks iwjh jkr dks xkao esa okfil ugha vk;s eq>s iwjk fo'okl gS fd mUgksaus mlh jkr izHkwflag dks tcju xkM+h esa Mky dj gR;k dj o 'kjhj ds VwdM+s djds ugj esa Mky fn;kA fjiksVZ is'k djrk gwa dk;Zokgh dh tkosA** Upon aforesaid written report FIR No.44/2007 was registered on 1.2.2007 at Police Station- Nohar (District Hanumangarh) under Section 302, 201, 365, 147 and 148 IPC against Kuldeep Singh, Sawai Singh, Mahendra Singh, Mahaveer and two other persons and investigation was commenced.
In the investigation, statements of three persons, Dan Singh, Ummed Singh and Indra Singh were recorded under Section 161 (5 of 30) [CRLA-150/2010] Cr.P.C. in which all the three witnesses stated that on 15.2.2007 one Vikram Singh S/o Indra Singh came and informed the witness that in the evening on 28.1.2007 at about 8'O Clock when he was at his home, Kalyan Singh and Raj Kumar Singh @ Peeradan Singh came on motorcycle and took him on motorcycle in between the way of village Meghana - Durjana they said that today we shall see Prabhu Singh. At about 8.30 pm Prabhu Singh came on cycle from the side village Durjana and reached near the chamber, at that time, Kalyan Singh inflicted kick upon his private part and pushed him from, and due to those injuries, Prabhu Singh fell down and became unconscious. Thereafter, Kalyan Singh and Raj Kumar Singh @ Peeradan Singh took him behind bushes near the road and killed him by strangulation. As per Vikram Singh, accused Kalyan Singh inflicted injuries upon hands, legs and other part of body of Prabhu Singh by the weapon ‗Rampa' (Gandasa) and, thereafter, put the parts of body in sack (jute bag) and closed the sack (jute bag). After putting the body inside the sack, they made a phone call to Sumer Singh Fauji and asked him that they are reaching near Nagrasari with dead body, therefore, you may also reach there. As per statements of Dan Singh, Ummed Singh and Indra Singh, the aforesaid incident was reported by the accused Vikram Singh S/o Indra Singh. It is further said that after killing Prabhu Singh I was directed by Kalyan Singh and Raj Kumar Singh @ Peerdan Singh that you take the cycle of Prabhu Singh and throw the cycle near rood and went to home.
(6 of 30) [CRLA-150/2010] Upon aforesaid statements of Dan Singh, Ummed Singh and Indra Singh, the investigating officer arrested the accused Kalyan Singh on 23.2.2007 vide arrest memo Ex.P/73 and arrested Raj Kumar Singh @ Peer Dan Singh on 24.2.2007 vide Ex.P/74 and further arrested Vikram Singh on 25.2.2007 vide Ex.P/75 and arrested Sumer Singh on 27.3.2007 vide Ex.P/76. After arrest, the investigating officer upon information given by accused Kalyan Singh and Raj Kumar Singh @ Peeradan Singh got identified the place where they killed deceased Prabhu Singh and the place where they throw the parts of the body, so also Kalyan Singh gave information for recovery of weapon ‗Rampa' (Gandasa) Ex.P/100 and said ‗Rampa' was recovered from the house of Kalyan Singh vide Ex.P/101. During investigation, the place of occurrence where the cloths of the deceased were fired was also identified by him and site plan of the said place was prepared vide Ex.P/87. Upon information given by the accused Raj Kumar Singh @ Peerdan Singh one pair of shoes and sweater of Prabhu Singh, were also recovered vide Ex.P/104 from the house of accused appellant Raj Kumar Singh. During investigation on 1.4.2007, accused Sumer Singh gave information under Section 27 of the Evidence Act about Atlas cycle of Prabhu Singh was recovered from agricultural field in the village Meghana vide Ex.P/7. During investigation, post mortem of the part of the body was conducted and after concluding investigation, charge-sheet was filed by the SHO, Police Station Nohar against the accused appellant Kalyan Singh, Raj Kumar Singh @ Peeradan Singh, Sumer Singh and (7 of 30) [CRLA-150/2010] VikramSingh under Section 302, 201, 364, 120B and 34 IPC in the court of learned Addl. Chief Judicial Magistrate, Nohar from where case was committed for trial to the Addl. Sessions Judge, Nohar and lastly the case was transferred to the court of learned Addl. Sessions Judge (FT), Hanumangarh headquarter Nohar for trial.
During trial, the accused Vikram Singh was declared juvenile by the High Court, therefore, his case was placed before the Juvenile Justice Board for trial and for remaining accused Kalyan Singh, Raj Kumar Singh @ Peeradan Singh and Sumer Singh charges were framed after providing an opportunity of hearing under Section 364 read with Section 120B, 302 read with Section 120B, 363 or 364 read with Section 34, 302 or 302 read with Section 34 and under Section 201 IPC. All the three accused denied the charges levelled against them and prayed for trial.
In the trial, statements of 17 prosecution witnesses were recorded by the learned trial court and, thereafter, statements of the accused Kalyan Singh, Raj Kumar Singh @ Peerdan Singh and Sumer Singh were recorded under Section 313 Cr.P.C. in which they denied the allegations made by the prosecution witnesses and said that it is a case of false implication due to enmity and groupism.
In defence 5 witnesses DW-1 Hasan, DW-2 Shayar Singh, DW-3 Subodh Sharma, DW-4 Vikram Singh and DW-5 Makbool Khan were produced as defence witnesses and 12 doucments were exhibited from defence side.
(8 of 30) [CRLA-150/2010] The learned trial court after recording entire evidence heard final arguments and convicted the accused appellants Kalyan Singh and Raj Kumar Singh @ Peerdan Singh for the offence mentioned above and acquitted Sumer Singh from the charge levelled against him.
D.B. Cr. Appeal No.150/2010 has been filed by the accused appellants Kalyan Singh and Raj Kumar Singh @ Peerdan Singh against their conviction whereas D.B. Cr. Revision Petition No.484/2010 has been filed by the complainant against the finding of acquittal of Sumer Singh.
Both the cr. appeal and revision are arising out from the judgment dated 12.3.2010 passed in Sessions Case NO.107/2007 (16/2007), therefore, we are deciding both appeal and revision, by this common judgment.
Learned Senior Counsel Sh. Mahesh Bora appearing for the respondents vehemently argued that entire case is based upon the circumstantial evidence because there is no direct evidence or eye witness of the incident, the learned trial court held accused appellants guilty only on the basis of confessional statement and recovery of weapon ‗Rampa' which has not been proved beyond reasonable doubt.
Learned counsel for the appellants invited our attention towards the fact that FIR was registered against Kuldeep Singh, Swai Singh, Mahendra Singh and two other persons but only on the basis of so called confessional statement of Vikram Singh before Dan Singh, Ummed Singh and Indra Singh the police (9 of 30) [CRLA-150/2010] arrested the accused appellant alongwith Sumer Singh and filed charge- sheet on the basis of circumstantial evidence of verification of place by the accused appellants and recovery of weapon Kanpa and cycle, therefore, it is obvious that finding of the learned trial court suffers from patent illegality.
Learned counsel for the appellants submits that the complainant Kan Singh is close relative of the deceased Prabhu Singh specifically submitted report to the police against four other persons and made allegation in which the names of the appellants were not mentioned. The whole investigation was shifted by the investigating officer after recording statement of witness Dan Singh, Ummed Singh and Indra Singh during investigation upon the fact that some confessional statements were made by accused Vikram Singh and on that basis the accused appellants and were arrested, and there is no other evidence on record to connect the accused appellants with the crime. The entire prosecution case is based upon confessional statement which is said to be made by one Vikram Singh before three witnesses Dan Singh, Ummed Singh and Indra Singh. The said confessional statement of co- accused cannot be relied upon so as to connect appellants for the allegation of murder. The confessional statement of Vikram Singh was required to be disbelieved by the learned trial court because as per law that cannot be used against the appellant but the learned trial court committed a grave error while relying upon the statements of Dan Singh, Ummed Singh and Indra Singh before whom the alleged confessional statement was made by Vikram (10 of 30) [CRLA-150/2010] Singh.
Learned counsel for the appellant invited our attention towards the complaint filed by Kan Singh (Ex.P/2A) in the court of Addl. Chief Judicial Magistrate, Nohar in which complainant again made allegation against three persons Kuldeep Singh, Sawi Singh and Mahendra Singh, even after filing charge-sheet against the appellants and specifically said in the complaint that appellants have been falsely implicated in the case.
According to learned counsel for the appellants it is a case in which appellants were arrested only on the basis of statement of Dan Singh, Ummed Singh and Indra Singh in which they disclosed the fact of confession made by Vikram Singh, and thereafter, false recoveries were made to correlate evidence against the appellants, therefore, the finding recorded against the appellants for alleged offence by the trial court is totally illegal and have no foundation to stand in the eye of law. It is also argued that no blood was found upon ‗Rampa' but on presumption the learned trial court gave finding that blood can be treated to be found upon the ‗Rampa' because some mud was found upon the weapon ‗Rampa'.
Learned counsel for the appellants further submits that there is no direct evidence or any evidence to prove enmity in between the deceased and appellants, therefore, only on the basis of recovery of cycle, ‗Rampa' and other articles it cannot be said that prosecution has proved its case beyond reasonable doubt. More so, it is a case in which appellants have been falsely implicated by (11 of 30) [CRLA-150/2010] the prosecution on the basis of so called circumstantial evidence, which is not even proved by any of the witnesses beyond reasonable doubt. As per prosecution case both the accused gave information about the cloths of the deceased, which is said to be thrown and some parts of cloths burn in fire were recovered but this fact has not been proved beyond reasonable doubt by the prosecution because the so called recovery has been shown from open place which does not connect the accused appellants with the crime.
Learned counsel for the appellant invited our attention towards the fact that complainant himself did not raise any voice against the appellants, but investigating officer solely on the basis of statement of Dan Singh, Ummed Singh and Indra Singh recorded under Section 161 Cr.P.C. arrested accused appellant and filed charge-sheet on the basis of false recovery of motorcycle and so called weapon ‗Rampa' and clothes therefore, facts of the case loudly speaks that prosecution has failed to complete the chain of circumstances so as to connect the accused appellants with the crime because there is no evidence of intention or motive, and there is no eyewitness, more so, there is material contradiction, improvement and omissions in the statement of so called witnesses before whom confession was made by Vikram Singh, but the learned trial court instead of disbelieving the testimony of these witnesses held accused appellant guilty erroneously. Therefore, it is prayed that the appeal filed by the appellants may kindly be allowed. In support of above arguments (12 of 30) [CRLA-150/2010] learned counsel for the appellants invited our attention towards following judgments, which are as follows:
1.
2.
3.
Per contra, learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that the complaint was filed by the complainant, Kan Singh under his thumb impression on 01.02.2007, upon which an F.I.R. No.44/2007 was registered under Sections 302, 201, 365, 147, 148 & 149 of IPC against four persons, namely, Kuldeep Singh, Sawai Singh, Mahendra Singh and Mahaveer Singh and two other unknown persons, but during investigation three witnesses, namely, Dan Singh, Indra Singh and Ummed Singh disclosed in their statements recorded under Section 161 Cr.P.C. that on 15.02.2007 one Vikram Singh (juvenile co-accused) informed us that on 28.01.2007 in the evening at about 8'O clock accused appellants, Kalyan Singh and Raj Kumar Singh @ Peerdan Singh, came to his home on motorcycle and took him with them and in between the way, from village Megana to Durjana, asked that today they will see Prabhu Singh and at about 08.30 PM, when Prabhu Singh came on his bicycle from village Durjana and reached near chamber of motorcycle in the way, the accused appellant, Kalyan Singh pushed him and inflicted kick upon the private part and due to said injury Prabhu Singh fell down and became unconscious. Thereafter, accused Raj Kumar Singh @ (13 of 30) [CRLA-150/2010] Peerdan Singh and Kalyan Singh took Prabhu Singh behind bushes near the road and killed him by throttling.
After killing Prabhu Singh, they cut down the parts of body by the weapon ‗Rampa' (xa.Mklk) and put the dead body in a sack and tide the same. Accused, Raj Kumar Singh @ Peerdan Singh made a phone call to one Sumer Singh Fauji and informed that they had killed Prabhu Singh and they are taking his dead body near ―Nagraji-Ki-Roi‖, therefore, asked him to reach there. According to witness, co-accused Vikram Singh informed that Raj Kumar Singh asked him to take bicycle of Prabhu Singh and he threw the bicycle behind the road.
Learned Public Prosecutor and counsel for the complainant vehemently argued that during investigation when such statements were given by the witnesses Dan Singh, Ummed Singh and Indra Singh and informed about the confessional statements of Vikram Singh, then investigation was conducted by the investigating officer from accused appellant and Sumer Singh. During investigation upon their information the place of occurrence where they killed Prabhu Singh, was identified, so also, in informed the place where they threw the parts of body of deceased in the canal, where the private parts of body was recovered by the police before arrest. The trial court while relying upon testimonies of PW.7- Dan Singh and PW.8 Indra Singh and on the basis recovery of half burnt clothes, ‗Rampa' and identification of place, held the accused appellants, Kalyan Singh and Raj Kumar Singh @ Peerdan Singh guilty for committing (14 of 30) [CRLA-150/2010] murder of deceased, however, acquitted accused Sumer Singh from the charges levelled against him. It is also argued that though charge sheet was filed against Vikram Singh, but he was juvenile on the date of occurrence, therefore, his case was transferred to Juvenile Justice Board for trial.
Learned Public Prosecutor and learned counsel appearing on behalf of complainant vehemently argued that it is a case in which prosecution has proved its entire case on the basis circumstantial evidence of recovery of weapon (‗Rampa'), clothes and verification of the place of occurrence at the instance of accused appellants, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. More so, it is a case in which prosecution has proved its case beyond reasonable doubt because two important witnesses, viz. Dan Singh and Indra Singh stated on oath before the court that in the confession made by co- accused, Vikram Singh, the whole story was narrated by him as how deceased Prabhu Singh was killed by the accused appellants in front of him, therefore, there is no strength in the arguments of the learned counsel for the appellants that FIR was filed against different persons and charge sheet has been filed against appellants on the basis of concocted story. Furthermore, there is no strength in the arguments of the learned counsel for the appellants that trial court has committed an error while holding them guilty for offence under Section 302 IPC for murder of Prabhu Singh. Therefore, there is no question to disturb the finding of learned trial court recorded in the impugned judgment (15 of 30) [CRLA-150/2010] dated 12.03.2010 and thus appeal of the accused may kindly be dismissed.
In revision petition (D.B. Cri. Revision No.484/2010), filed by the petitioner/complainant Kan Singh against acquittal of accused, Sumer Singh, learned counsel for the petitioner submitted that there was ample evidence against Sumer Singh, therefore, on the basis of circumstantial evidence in which complete chain of facts was proved by the prosecution, the accused respondent, Sumer Singh was also required to be convicted because prosecution has proved its case beyond reasonable doubt with regard to his participation in commission of crime. It is submitted that in the statements of PW.7- Dan Singh and PW.8- Indra Singh, it is specifically alleged that extra judicial confession was voluntarily made by co-accused Vikram Singh before them, therefore, it is a case in which prosecution has proved participation of respondent Sumer Singh. Thus, acquittal of accused respondent Sumer Singh by the trial court from the charges under Section 302/34 and 201 IPC is totally erroneous and, therefore, the judgment impugned dated 12.03.2010 passed by trial court to the extent of acquitting Sumer Singh, may kindly be quashed and he may also be held guilty for committing offence under Sections 302/34 and 201 of IPC.
After hearing learned counsel for the parties, we have perused the complaint (Ex.P/6) filed by the complainant, Kan Singh S/o Ganpat Singh, upon which F.I.R. No.44/2007 was registered on 01.02.2007 at Police Station Nohar and complaint (16 of 30) [CRLA-150/2010] (Ex.D/2A) filed by the complainant on 17.09.2007 after filing of the charge sheet against accused. The following allegations were levelled in the complaint (Ex.D/2A) dated 17.09.2007:
";g fd eqLrfxl ds ppjs s HkkbZ izHkw flga dh dqynhi flga ] lokbZ flga i=q Hkknj flga o egUs nz flga ] egkohj flga i=q nqys flga ] lkfdu vx.q kk ckl e?s kkuk ds lkFk pquko dks yd s j jfa t"k pyh vk jgh FkhA 2- ;g fd fnukd a 26-01-2007 dks izHkw flga dks tku ls ekjus dh /kedh eqyfteku us nh o dgk fd ekSdk yxrs gh rjs s dks le> yxas As 3- ;g fd fnukd a 28-01-2007 dks lk;a N% cts izHkw flga xkoa nqytkuk lkbZfdy ij x;k] mlds ikl ekcs kby Z Qkus Fkk] tks okfil ?kj ugha vk;kA e?s kkuk xkoa eas o nqytkuk xkoa eas irk fd;k o ekcs kbZy ij Qkus djds irk djus dk iz;kl fd;k] ij ekcs kbZy dh ?kVa h ugha cthA 4- ;g fd eqLrfxl xzke ip a k;r ds ljipa guqeku flga ls feyk o mudks crk;k fd izHkw flga fnukd a 28-01-2007 dks vkB cts pyk x;k okfil ugha vk;k] fj"rns kjh eas ekyew fd;k yfs du mldk dkbs Z irk ugha pykA 5- ;g ;g fd rHkh fdlh us crk;k fd yykfy;ka ugj eas ,d vkneh dh yk"k feyh gS] rc eqLrfxl Lo;a o ifjtukas dks lkFk yd s j ukgs j gLirky x;k] ogka ,d yk"k n[s kh rks /kM+ Fkk o "kjhj ds VqdMs+ FkAs ftUgas n[s k dj eqLrfxl us yk"k izHkw flga o VqdMs+ iHz kw flga ds "kjhj ds gkus s ipku fy;k] flj xk;c FkkA 6- ;g fd fnukd a 31-01-2007 dks yykfy;ka ugj eas "kjhj ds VqdMk+ s dh ryk"k dh x;h] iqfyl us ikuh :dok;kA fnukd a 01-02-2007 dks ugj jkgs h xkj[kkuk eas "kjhj ds ckdh Vd q Ms+ fey]s ftleas ,d gkFk eas iguk gqvk NYyk] gkFk eas cU/kh gqbZ ekys h o v.Mjfo;j tks eqLrfxl o ifjokj ds vU; lnL;kas us izHkw flga ds "kjhj ds VqdMs+ o reke feys leku] NYyk] ekSyh o v.Mjfo;j igpku fy;As flj ij "kjhj ij igus gq;s diM]s+ LoVs j Hkjw k jxa ] dca y lQns ] dkyh iUs V] Hkjw s jxa ds trw s ugha feysA 7- ;g fd fnukd a 28-01-2007 dks dqynhi flga ] lokbZ flga ] egUs nz flga ] egkohj flga o vU; dbZ vkneh ftUgas eqLrfxl igpku ugha ldk] jkf= dks 8 cts thi yd s j nqytkuk dh rjQ iHz kw flga ds ihNs x;s os ykxs ijw h jkr xkoa eas ugha vk;As nku flga us Hkh egkohj flga ] egUs nz flga ] lokbZ flga ] o dqynhi flga dks thi o ekVs jlkbZfdy ij nqytkuk dh rjQ lqejs flga ds ?kj tkrs gq;s n[s kkA (17 of 30) [CRLA-150/2010] 8- ;g fd fnukd a 28-01-2007 ds ckn gh izHkw flga ds "kjhj ds VqdMs+ yykfu;ka ugj eas ik;s x;s Fks izHkw flga dks pkjk O;fDr;kas us dRy dj mlds "kjhj ds VqdM&s+ 2 djds yk"kdks [kqnZ&cnq Z djus dh dkfs "k"k dh] blfy;s vyx&vyx txgkas ij izHkw flga ds "kjhj ds VqdMs+ feys gSA 9- ;g fd eqLrfxl us fnukd a 01-02-2007 dks M<s + cts fnu Fkkuk iqfyl ukgs j eas izFke lp w uk ds fy;s izkFkZuk&i= i"s k fd;kA ftl ij Fkkuk iqfyl ukgs j eas izFke lpw uk uca j&44@2007] vUrxZr /kkjk 302] 201] 365] 147] 148] 149 Hkkjrh; n.M lfa grk eas ntZ dj dqynhi flga ] lokbZ flga ] egUs nz flga o egkohj flga rFkk vU; O;fDr;kas ds f[kykQ ntZ dh x;h yfs du iqfyl us bu ey q fteku ls lkt&ckt dj budks NkMs + fn;k fn;k iqfyl dk ;g dguk gS fd izHkw flga ds dkfry ;s ugha cfYd vU; O;fDr dY;k.k flga ] ihjnku] foØe o lqejs flga dks iqfyl us fxj¶rkj dj fy;kA ckj&ckj eqLrfxl o izHkw flga ds ifjtukas }kjk iqfyl dks ;s dgus ij fd vkius vU; eq[; eqyfteku dks ugha idMk+ gS] ftUgkuas s dRy fd;k gSA bl dRy ds fy;s dqynhi flga ] lokbZ flga ] egUs nz flga ] egkohj flga ds lkFk ihjnku] lqejs flga ] foØe flga ] dY;k.k flga gks ldrs gS yfs du e[q ; vfHk;qDr dqynhi flga ] lokbZ flga ] egUs nz flga ] egkohj flga gS] vki bUgs D;kas ugha idMr+ s gk]s ;s ykxs Lo;a bl ckr dks eku pd q s gS fd dRy geus fd;k gSA 10- ;g fd vej flga ] Qrgs flga ] o egkohj flga ds le{k pkjkas eqyfteku us bl ckr dks ekuk gS fd geus izHkw flga dk dRy dj fn;k o mldh yk"k dks ugj eas Mky fn;k] gekjs ls xyrh gks x;h] geas izHkw flga ifjokj ls cSBdj jkthukek djokvkAs bl ckr dks pkjkas eqyfteku us bu rhukas ds lkeus ekuk fd izHkw flga dh gR;k geus jfa t"ko"k dj nhA reke gYQukes eas iqfyl ds le{k izLrrq dj fn;s x;s yfs du fQj Hkh iqfyl us bu pkjkas eqyfteku ls lkBa xkBa dj jktuhfrd ncko dh otg ls bl eqdnek eas mudks fudky fn;kA 11- ;g fd eqLrfxl us iow Z eas fnukd a 31-05-2007 dks ,d bLrxklk Jheku th ds le{k i"s k fd;k FkkA ftldks Jheku th us /kkjk 210 lh vkj ih lh ds rgr fjikVs Z iqfyl Fkkuk ukgs j ls exa ok;h FkhA ftleas iqfyl Fkkuk ukgs j us fnukd a 06-07-2007 dh ,d fjikVs Z Jheku th ds le{k bl vk"k; dh i"s k dh] fd mDr izdj.k dk vul q /a kku tkjh gS ,oa bl lEcU/k eas Jheku iqfyl egkfujh{kd egkns ; chdkujs jUs t] chdkujs rFkk Jheku iqfyl v/kh{kd egkns ;] guqekux< ls ekxZn"kZu fy;k tk jgk g]S ftl ij eqLrfxl (18 of 30) [CRLA-150/2010] }kjk iow Z eas i"s k fd;k x;k bLrxklk iqfyl }kjk dk;Zokgh yfa cr j[ks tkus ds dkj.k ,oa dk;Zokgh dh tk jgh gkus s ds dkj.k fnukd a 24-04-2007 dks Jheku th }kjk Mªkis Qjek fn;k x;kA 12- ;g fd mDr izdj.k eas fnukda 01-09-2007 dks iqfyl }kjk ,d fjikVs Z Øekd a 7575&77 fnukd a 12-08-2007 dh bl vk"k; dh i"s k dh x;h fd eqyfteku dqynhi flga ] lokbZ flga ] egUs nz flga ] o egkohj flga dh bl eqdnek eas fdlh izdkj dh lfa yIrrk ugha ik;h x;h gSA 13- ;g fd eqyfteku dy q nhi flga ] lokbZ flga ] egUs nz flga ] egkohj flga dks izHkw flga ds ihNs tkrs gq;s nku flga us n[s kk] ,oa pkjkas eqyfteku us Qrgs flga ] vej flga o egkohj flga ds jkc: vius }kjk fd; x;s d`R; dks ekuk gS fd izHkw flga dh gR;k dj yk"k ds VqdM& s+ VqdMs+ dj yk"k dks fNikus dk d`R; fd;k gS] vius d`R; dks fNikus dh dkfs "k"k dh A bl ckr dks eqyfteku us Lohdkj fd;k gSA eqyfteku dk mDr d`R; Hkk-n-a l-a dh /kkjk 302] 365] 201] 120ch] 147] 148] 149 dh gn dks igqp a rk gAS Vr% bLrxklk i"s k dj vtZ gS fd eqyfteku dks muds QSy dh l[r ls l[r ltk QjekoAs Jheku th dh vfr d`ik gkxs hA"
It is admitted fact that the complainant, Kan Singh (PW.2) neither in complaint (Ex.P/6) nor in the complaint (Ex.D/2A) levelled any allegation against the appellants for their involvement.
We have also perused the statements of all the prosecution witnesses and considered the fact of recovery of weapon- ‗Rampa' and other articles. It emerges from the judgment that for its adjudication of the case 13 points were determined by the trial court for consideration on the basis of evidence available on record to consider the circumstantial evidence, upon which prosecution has based the case so as to prove the case against the appellants. The points are as follows: -
(19 of 30) [CRLA-150/2010] "1- ih-M&3 dku flga ds dFkkukuqlkj tc e`Rrd vfUre ckj e?s kkuk ls nqtkZuk x;k Fkk] rc mlds ihNs vfHk;qDrx.k dY;k.k flga o jktdqekj flga mQZ ihjnku flga dk ekVs jlkbZfdy ij tkukA 2- vfHk;kt s u i{k ds dFkkukuqlkj idz j.k ds lg vfHk;qDr foØe flga }kjk fnukd a 15-2-2007 dks ih-M-&7 o 8 Øe"k% nku flga o bUnzflga ds le{k Lo;a ds o vfHk;qDrx.k ds vijk/k dh lLa ohd`fr djukA 3- vfHk;qDr dY;k.k flga }kjk iqfyl dks nh xbZ lp w uk izn"kZ ih&100 ds vk/kkj ij Lo;a ds xzke e?s kkuk eas fLFkr fjgk;"k edku eas tehu eas nck;k gqvk jkEik cjken tfj, QnZ tCrh inz "kZ ih&101 djokuk o fof/k foKku iz;kxs "kkyk dh fjikVs Z inz "kZ ih&114 vuqlkj mDr jkEik ekdZ&8 ij mlh xizq dk ekuoh; jDr ik;k tkuk[ tks e`Rrd izHkfw lga dk FkkA 4- vfHk;qDrx.k dY;k.k flga o jktdqekjflga mQZ ihjnku flga }kjk ml LFkku dh fu"kkungs h djokuk tgka izHkfw lga dh yk"k ds VqdMs+ fd, o uD"kk ekd S k izn"kZ ih&87 vuqlkj ml LFkku dh feVV~ h [kuw vkynw k gkus k o fof/k foKku iz;kxs "kkyk dh fjikVs Z inz "kZ ih&114 vuqlkj mDr tCr"kqnk feV~Vh ekdZ&5 ij ch xqiz dk ekuoh; jDr ik;k tkukA 5- vuql/a kku vf/kdkjh dks vfHk;qDrx.k dY;k.k flga o jktdqekj flga mQZ ihjnku flga us lp w uknh fd mUgkus s yk[kklj dh chgM+ eas izHkfw lga ds [kuw vkynw k deht cjxa lQSn] dkyh iVas o pkSdMh+ nkj dca y dk fgLlk dSj ds o`{k dh vkVs eas feV~Vh dk ry s Mkydj tyk, Fk]s ftlds vk/kkj ij mDr vfHk;Dq rx.k }kjk ml LFkku dh fu"kkungs h djokuk tgka mUgkus as e`Rrd ds diMs+ tyk, Fks o ogka diMk+ as ds v/ktys VqdMs+ o iVas dk gqd ik;k tkuk ftls iqfyl }kjk dCtk eas fy;k tkuk o fof/k foKku iz;kxs "kkyk dh fjikVs Z inz "kZ ih&114 vul q kj mijkDs r tys gq, diMk+ as o jk[k eas ekuoh; jDr ik;k tkukA 6- vfHk;qDr jktdqekj flga mQZ ihjnkj flga }kjk iqfyl dks lp w uk izn"kZ ih&103 nus k fd mlus izHkfw lga ds diMs+ ds ,d tkMs h+ trw ]s ,d LoVs j] ,d dEcy dk VqdMk+ ikfs yfFku dh FkSyh eas ck/a kdj vius fjgk;"kh edku eas Nqik j[ks gS]a tks iqfyl dks tfj, QnZ izn"kZ ih&104 cjken djokukA (20 of 30) [CRLA-150/2010] 7- vfHk;qDr dY;k.k flga o jktdqekj mQZ ihjnku flga }kjk ml LFkku dh fu"kkungs h djokuk tgka ij mUgkuas s izHkfw lga dk ekjk FkkA 8- vfHk;qDrx.k dY;k.k flga o jktdqekjflga mQZ ihjnku flga }kjk e`Rrd izHkfw lga dh lkbZfdy tgka NqikbZ xb]Z ml LFkku dh fu"kkungs h djokukA 9- vfHk;qDrx.k dY;k.k flga o jktdqekj flga mQZ ihjnku flga }kjk ml LFkku dh fu"kkungs h djokuk tgka mUgkus s e`Rrd izHkfw lga dh yk"k ds VqdMs+ Mkys FkAs 10- vfHk;qDr lqejs flga }kjk viuh nh xbZ lp w uk izn"kZ ih&112 ds vk/kkj ij e`Rrd izHkfw lga dh lkbZfdy tCr djokukA 11- vfHk;qDr jktdqekj flga mQZ ihjnku flga }kjk ?kVuk eas iz;qDr ekVs jlkbZfdy cjken djokukA 12- e`Rrd izHkfw lga o vfHk;qDrx.k ds e/; iow Z dh jfa t"k gkus kA 13- vfHk;kt s u i{k ds dFkukuqlkj e`Rrd izHkw flga dk "ko feyus ds i'pkr~ vfHk;Dq rx.k dk xkoa e?s kkuk ls xk;c gks tkukA"
After assessment of entire evidence for first circumstance the trial court specifically observed that, ―vr% ,l s h fLFkfr eas bl fu'd'kZ ij i gp aq us dk dkbs Z vk/kkj ugha gS fd tc fnukd a 28-1-2007 dks izHkfw lga lkbZfdy ij e?s kkuk ls nqtkZuk x;k Fkk] rc mlds ihNs ekVs jlkbZfdy ij dY;k.k flga ] ihjnku flga o foØe flga x, FkAs ‖.
While considering the second circumstance, the learned trial court discussed the evidence of PW.7- Dan Singh and PW.8- Indra Singh and gave following finding to disbelieve the testimony of these witnesses and observed that, ―mijkDs r ifjfLFkfr;kas eas mijkDs r ifjokj izn"kZ Mh&2 eas mijkDs r dfFkr vfrfjDr U;kf;d lLa ohd`fr dk mYy[s k ugha gkus k o vU; ifjfLFkfr;k]a ftldk ejs s }kjk iow Z eas foop s u fd;k tk pqdk gS] mijkDs r xokgku nku flga o bUnzflga ds vfHk;qDr foØe flga }kjk vijk/k lLa ohd`fr fd, tkus ds dFkukas dks vR;f/kd lUngs tud gkus k nf"krZ djrh gAS mijkDs r ifjfLFkfr;kas eas fo}ku vij ykd s (21 of 30) [CRLA-150/2010] vfHk;kt s d }kjk izLrrq U;k; n'` VkUr f"kodqekj cuke bl a iDs Vj vkWQ iqfyl tfj, jkT;
2006 fØehuy ykW fjikVs jZ ¼,l- lh½ 178 o v"kkd s o vU; cuke jktLFkku jkT; 2009 ¼2½ fØehuy ykW fjikVs Zj ¼jkt-½ 1090 vijk/k lLa ohd`fr ds lca /a k eas pLik ugha gkrs s gSA‖.
In view of above, there is no dispute that trial court gave finding that evidence of confession is seriously doubt.
With regard to third point of evidence, in relation to recovery of weapon of offence i.e. ‗Rampa', we have perused the finding arrived at by the learned trial court. Admittedly, the incident took place on 28.01.2007 and the accused appellants were arrested on the basis of testimony/ statement of Dan Singh and Ummed Singh on 23.02.2007 and 24.02.2007 respectively recorded after 25 days of the incident. As per prosecution case on 28.02.2007 when accused appellant, Kalyan Singh was in police custody, gave information u/s 27 of Evidence Act for recovery of ‗Rampa' (xa.Mklk) from his residential house. Pursuant to said information, weapon ―Rampa‖ was recovered. According to prosecution case, in the FSL report (Ex.P/114) human blood of ‗B' group was found upon the weapon, ‗Rampa' but as per recovery memo (Ex.P/101) ‗Rampa' was recovered in the presence of two witnesses, viz. Kan Singh and Abhay Singh, in which it is nowhere mentioned that blood was found upon the said weapon ‗Rampa', only assertion was made that upon ‗Rampa' some soil was found, therefore, it obvious that at the time of recovery of ‗Rampa', no blood was found but trial court gave erroneous finding while deciding point No.3 that prosecution has proved the recovery of ‗Rampa' beyond reasonable doubt for the reason that blood of ‗B' group was found (22 of 30) [CRLA-150/2010] upon the ‗Rampa'. It is very strange that ‗Rampa' was recovered in the presence of complainant- Kan Singh (PW.3), father of deceased, but allegations were levelled by the complainant, Kan Singh, against the accused in his complaint (Ex.D/2A), which was filed subsequently on 17.09.2007 after filing of charge sheet, therefore, in our opinion the Point No.3 with regard to recovery of ‗Rampa' at the instance of Kalyan Singh, has wrongly been decided by the trial court against the accused appellants because recovery of said ‗Rampa' is seriously doubtful.
With regard to fourth circumstance which is with respect to identification of the place at the instance of accused appellant, the learned trial court gave finding after discussing entire evidence that the place, where the deceased was murdered, has been identified by accused, Kalyan Singh but upon consideration of evidence, there is no doubt that before arrest of accused appellant, Kalyan Singh, but the place from where the parts of body and clothes were recovered, was already known to police because two witnesses, Dan Singh and Ummed Singh disclosed the place in their statement. Therefore, the finding of trial court that prosecution has proved that verification of place where, Prabhu Singh (deceased) was murdered by Kalyan Singh, is not sustainable in the eye of law because no allegation was levelled by complainant, Kan Singh against appellants for committing murder but the investigating officer while relying upon testimony of two witnesses, Dan Singh and Ummed Singh connected the accused appellants with the crime on the basis of so-called extra judicial (23 of 30) [CRLA-150/2010] confession made by co-accused, Vikram Singh, therefore, the finding of learned trial court for identification of place where the dead body was cut down has not been proved by the prosecution because it is based upon FSL report (Ex.P/114) in which human blood of ‗B' group was found in the soil taken from the place, was correlating with blood found upon the underwear of the deceased. In our opinion, the finding for identification of place is seriously doubtful because prosecution case is based upon circumstantial evidence, which has not been proved beyond doubt.
With regard to recovery/identification from Raj Kumar Singh @ Peerdan Singh, learned trial court observed that the prosecution has failed to prove said recovery of the place at the instance of accused Raj Kumar @ Peerdan Singh.
With regard to fifth point of circumstance, we have perused the finding of trial court that prosecution has proved the fact that upon information given by accused appellant Kalyan Singh on 26.02.2007 blood stained part of clothes viz. pant and shirt were recovered vide Ex.P/109 and those parts were sent to FSL for examination, and in turn FSL report (Ex.P/114) was obtained, wherein human blood of ‗B‖ group was found upon those clothes.
Upon consideration of entire evidence, we are of the opinion that in the FIR, it is nowhere stated that what type of clothes were wore by the deceased and recovery of pieces of clothes was also made in the presence of two witnesses, viz. complainant, Kan Singh and Abhay Singh but it is nowhere stated by him that in his presence, the pieces of clothes of deceased were recovered upon (24 of 30) [CRLA-150/2010] information given by accused, Kalyan Singh. Therefore, the finding of learned trial court to connect the accused Kalyan Singh with the crime on the basis of recovery of pieces of clothe has been proved.
Learned trial court gave finding that recovery of clothes at the instance of Raj Kumar Singh @ Peerdan Singh, is not acceptable because for the same place recovery was already made on 26.02.2007 as per information given by accused Kalyan Singh. In our opinion, the finding of trial court with regard to recovery is self-contradictory because trial court discussed the entire evidence separately for each of the accused, whereas as per prosecution case, both the accused appellants participated in the crime. Therefore, we hold that prosecution has failed to prove said circumstantial evidence with respect to recovery of pieces of clothes from the place of occurrence.
We have perused the finding given by learned trial court for sixth circumstantial evidence with regard to recovery of clothes of Prabhu Singh from the house of Raj Kumar Singh @ Peerdan Singh. It is very strange that without any evidence, the learned trial court gave finding that shoes, sweater and blanket of deceased were recovered at the instance of accused Raj Kumar Singh @ Peerdan Singh. It is admitted fact that said recovery was made vide Ex.P/104 in the presence of two witnesses, viz. Kan Singh and Abhay Singh but there is no description about the clothes and shoes in the complaint, therefore, it cannot be said that so-called shoes, sweater and blanket were belonged to (25 of 30) [CRLA-150/2010] deceased, Prabhu Singh because as per prosecution case he was coming from village Durjana and in the complaint, it is nowhere narrated that what type of clothes were wore by the deceased and he was having blanket with him. Further, it is admitted position of the case that Motbir witness, Kan Singh who made complaint against four other persons and no allegation was made by him against the appellants by him, so also, in the complaint filed after filing charge before the Magistrate, which is exhibited as Ex.D/2A, no assertion that any recovery was made in front of him.
In view of above, we are of the opinion that the finding given by trial court with regard to recovery of shoes, sweater and blanket cannot be treated to be proved because recovery of these articles is seriously doubtful in view of the fact that in the complaint Ex.D/2A made by complainant, Kan Singh after filing of the charge sheet in the court of Chief Judicial Magistrate, Nohar, it is nowhere said that any articles were recovered in his presence.
We have perused the finding of learned trial court. The learned trial court about Point No.7, in which the trial court gave finding in favour of accused appellants.
With regard to circumstantial evidence No.8, learned trial court gave finding that recovery of bicycle has not been proved by the prosecution.
With regard to Point No.9, learned trial court after discussing entire evidence gave finding that said circumstantial evidence has not been proved by the prosecution and observed as under: -
(26 of 30) [CRLA-150/2010] ―vr% ,l s h fLFkfr eas ge ;g ugha dg ldrs fd vfHk;qDrx.k dY;k.k flga o jktdqekjflga mQZ ihjnku flga }kjk nh xbZ nQk 27 dh lp w uk Øe"k% inz "kZ ih&81 o 98 ds vuqlj.k eas ifq yl dks fdlh u;s rF;
d h [ k kt w uk,a egRoghu gks tkrh gSA‖
s gqbZA vr% mijkDs r lp
The Point No.10 is related to accused, Sumer Singh, who has been acquitted from the charges levelled against him and upon perusal of finding given by the trial court upon said point, we are of the opinion that no error has been committed by the trial court to as to disbelieve the evidence of prosecution to observe that prosecution failed to prove said circumstances against, Sumer Singh.
We have also perused the finding arrived at by learned trial court with respect to Point No.11. With regard to recovery of motorcycle at the instance of accused appellant, Raj Kumar @ Peerdan Singh, the trial court disbelieved the prosecution evidence and gave finding that prosecution has failed to connect the appellant with the crime.
Upon consideration of the finding for Point No.12, with regard to previous enmity, it emerges from the record that trial court has relied upon testimony of PW.7 Dan Singh, so as to accept enmity between the deceased and accused appellants. In our opinion, on the one hand the trial court disbelieved the testimony of PW.7 Dan Singh for the purpose of extra judicial confession because no allegation was levelled by the complainant himself in the FIR as well as in the complaint for previous enmity, then it was the duty of the prosecution to consider the fact that no (27 of 30) [CRLA-150/2010] allegation was levelled by complainant, Kan Singh. PW.3 in his complaint filed before the police and in the court during trial, therefore, we hold that finding of enmity between the deceased, Prabhu Singh and accused appellants, Kalyan Singh and Raj Kumar Singh @ Peerdan Singh, is totally erroneous in absence of any allegation being levelled by complainant Kan Singh in the complaint (Ex.P/6) and the complaint (Ex.D/2A) filed before the magistrate filed after submitting the charge sheet. In both above complaints, there is no whisper about enmity between deceased and the appellants, therefore, the finding arrived at by the trial court for said circumstantial evidence is not acceptable.
In our opinion, the extra judicial confession made by co- accused, Vikram Singh, before the witnesses PW.7-Dan Singh and PW.8-Indra Singh, cannot be taken into consideration so as to connect the accused appellants guilty on the basis of circumstantial evidence.
The Point No.13 based upon circumstantial evidence is that accused appellants absconded after recovery of dead body of Prabhu Singh from village Megana. The learned trial court gave finding that prosecution has failed to prove the fact that after recovery of pieces of dead body of deceased- Prabhu Singh, accused appellants- Kalyan Singh and Raj Kumar Singh @ Peerdan Singh absconded from the village.
Upon consideration of above finding, we are of the opinion that prosecution has failed to prove all the thirteen points for considering circumstantial evidence and erroneously convicted the (28 of 30) [CRLA-150/2010] accused appellants on the basis of conjectures and wrong consideration of evidence. Learned trial court accepted the recovery of ‗Rampa' upon information given by accused appellant, Kalyan Singh on the ground that human blood was found upon the said weapon ‗Rampa' as per FSL report (Ex.P/114). But, in our opinion, when blood was not found as per recovery memo of weapon ‗Rampa', then how the FSL report can be accepted that human blood of same blood was found which is found upon the clothes of the deceased. Upon our assessment, all the circumstances are not proved beyond reasonable doubt by the prosecution so as to connect the accused appellants with the crime. Admittedly, two complaints, one at the initial stage and second after filing charge sheet was filed by the complainant, but there is no whisper with regard to enmity of accused appellants with the deceased, which is evident from the fact that in the complaint (Ex/D/2A) filed by Kan Singh, no fact was disclosed about recovery of weapon, clothes in his presence, therefore, the whole prosecution case become doubtful.
The Hon'ble Apex Court in Sharad Birdhichand Vs. Sarda, reported in AIR 1984 SC 1622, certain golden principles have been laid to consider the circumstantial evidence. The said judgment was again considered by the Hon'ble Apex Court in the case of Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore reported in (2017) 1 SCC (Cri.) 99, and following adjudication was made by the Hon'ble Apex Court, which reads as infra:
(29 of 30) [CRLA-150/2010] "26. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra. The relevant excerpts from para 153 of the decision is assuredly apposite: -
(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;
* * * (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‖ We have considered the finding of trial court in the judgment impugned in the light of evidence on record and aforesaid judgment. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt so as to connect the accused appellants with the crime. Therefore, finding of conviction arrived at by the learned trial court is not sustainable in law and accused appellants are entitled for benefit of doubt.
Consequently, D.B. Cri. Appeal No.150/2010- Kalyan Singh & Anr. Vs. State of Rajasthan, filed by the accused appellants, is hereby allowed, the conviction and sentence passed by the trial court against the accused appellants, Kalyan Singh and Raj Kumar Singh @ Peerdan Singh, on the basis of circumstantial evidence is (30 of 30) [CRLA-150/2010] hereby quashed and set aside and they are acquitted from the charges levelled against them. The accused appellants be released forthwith, if not required in any other case.
In view of above discussion, there is no force in revision petition filed by petitioner/complainant- Kan Singh, therefore, D.B. Criminal Revision Petition No.484/2010, is hereby dismissed accordingly.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Kalyan Singh and Raj Kumar Singh @ Peerdan Singh, are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(INDERJEET SINGH)J. (GOPAL KRISHAN VYAS)J. CP Goyal/-
DJ/-