Rajasthan High Court - Jaipur
Umrao Singh And Anr. vs State Of Rajasthan on 17 April, 2002
Equivalent citations: 2003(3)WLN516
JUDGMENT Shiv Kumar Sharma, J.
1. The appellants were the accused on the file of the learned Additional Sessions Judge, Sikar bearing Sessions Case No. 44/93. The learned Additional Sessions Judge found them guilty under Sections 302 and 201, IPC and convicted and sentenced them under each section to undergo imprisonment for life and fine of Rs. 1000/- in default to further undergo six months simple imprisonment. The sentences were directed to run concurrently. Assailing the said judgment the appellants have preferred the instant appeals.
2. In nut shell the prosecution case is that informant Chhigan Lal (PW-5) submitted a written report (Ex. P. 7) on 7.8.1993 at 1.45 p.m. to he SHO Police Station, Raghunathgarh to the effect that at around 10.00 a.m. on the said day when Bhagwana Ram Balai was ploughing his field the found something concealed underneath the fresh soil near the public well adjacent to his field. He then gathered the villagers and when soil was removed in the presence of informant, Bherji, Durga Prasad, Madan Lal and other villagers a dead body was found buried underneath the soil.
3. The Police Station, Ragunathgarh registered FIR No. 96/93 (Ex. P. 8) under Sections 302 & 201, IPC and the investigation commenced. Site plan Ex. P. 9 was drawn. Inquest report Ex. P. 6 was prepared. Autopsy on the dead body which was identified as of Narpat Singh, was conducted vide Ex. P. 23. Statements of the witnesses under Section 161, CrPC were recorded. The appellants were arrested. At the instance of appellant Surendra Kumar blood stained clothes and knife were recovered, whereas on the basis of disclosure statement of appellant Umrao Singh clothes, handkerchief, iron Kassi, empty bottle of liquor, Chapals, Ring, bag, watch, keys, calculator, pass book of deceased Narpat Singh, diary, spectacles, Bhagwadgita, Four Dot Pencils and cash in the sum of Rs. 28,734/- were recovered. On conclusion of the investigation chargesheet was laid. In due course the case came up for trial before the learned Additional Sessions Judge Sikar. Charges under Sections 302 & 201, IPC were framed against the appellants who denied the charges and claimed trial. As many as 23 witnesses were examined by the prosecution in support of its case. In the explanation under Section 313, CrPC the appellants pleaded innocence and stated that they were falsely implicated in the case. Initially the police detained one Suresh Ginodiya who used to tease the girls in the College, and on being implored by deceased Narpat Singh not to do so, Suresh had threatened Narpat Singh to kill. But Suresh Ginodiya was left and in his place the appellants were arrested. The appellants examined three witnesses in defence. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated hereinabove.
4. The prosecution case depends on circumstantial evidence which broadly speaking is two fold. In the first category comes the testimony of Chitrainjan Singh (PW-16), Rajendra Kumar (PW-9) Purushottam (PW-13), Ram Singh (PW-20) and Mool Singh (PW-21) who had last seen the deceased and the appellants together and the evidence of second category comprises the disclosure statements of the appellants and the recovery memos of blood stained clothes, knife, iron Kassi (spade), empty bottle of liquor, Chapals, keys, bag, watch, calculator, Ring, Pass book, Bhagwadgita, spectacles and cash in the sum of Rs. 28,734/-. One more connecting evidence is the report of FSL Ex. P. 33.
5. Their Lordships of the Supreme Court in Dhananjoy Catterjee v. State of West Bengal , indicated that in case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence last suspicion taken the place of proof.
6. It would be therefore necessary for us to examine the circumstances relied upon by the learned trial judge and to find out whether on the materials on record it is possible to hold such circumstances taken together can be said to be complete which point to the guilt of the appellants rather than their innocence.
7. Mr. S.R. Bajwa, learned Senior Advocate appearing for the appellant Surendra Kumar canvassed that none of the pieces of evidence relied on as incriminating by the trial Court, can be treated as incriminating pieces of circumstantial evidence against the appellants. On the point of last seen together the evidence of Chitranjan Singh (PW-16) does not constitute such a circumstance as to draw an incriminating inference against the appellants and connect them with the crime. The evidence of Rajendra Kumar (PW-9), Purushottam (PW-13), Ram Singh (PW 20) and Mool Chand Singh (PW-21), who identified the appellants for the first time after so many years in the Court could not be relied upon. It is highly unsafe to accept the identification of the appellants in Court many years after the occurrence. The investigating officer did not offer any explanation as to why the test identification parade was not conducted. It is just impossible for a person who had seen the face of the accused for a while, to remember that face for the purpose of identification after many years. Mr. Bajwa learned counsel drew our attention to the missing links of the prosecution case. It is contended that the knife allegedly recovered at the instance of appellant Surendra Kumar, was not stained with blood. No evidence was produced to establish that soon before the death the deceased was wearing the ring. Imprint of ring was not visible on the finger of the deceased. Ring was recovered on 9.8.1993 but it was got identified on 13.9.1993 and no explanation for delayed identification was offered. Ring was not unique and no documentary evidence was produced to show that it belonged to the deceased. Mr. Anoop Dhand learned counsel for the appellant Umaro Singh contended that although test identification is not a substantive evidence but holding of test identification is a safe rule of prudence and can be used for corroboration purposes but in the instant case even test identification parade was not held and last seen circumstance could not be established. Blood group on the clothes was also not proved. Evidence of identification of articles suffers from legal infirmities. No exclusive possession of the appellants over the house from where the articles were recovered was established.
8. Per contra Mr. Rajendra Yadav, learned P.P. supported the impugned judgment and contended that the appellants were rightly convicted.
9. On the circumstance of last seen together as already noticed the prosecution examined Chitranjan Singh (PW-16), who is the son of the deceased Narpat Singh. At the time of the death of Narpat Singh, Chitranjan Singh was 14 years of age. In his deposition Chitranjan Singh stated that at 7 p.m. on 6.8.1993 he had seen his father coming from the college. He had also seen Surendra Kumawat and Umrao Singh coming on a blue scooter bearing No. RJ-23 M 0837. They had a talk with his father and his father climbed on the rear seat of scooter and all the three then proceeded towards the market. In the cross-examination Chitranjan Singh deposed that he got recorded in his police statement (Ex.D/2) that he had seen his father and Surendra Kumawat and Umrao Singh together but why the police did not write this fact, he was not in a position to explain. He also deposed that he had seen Surendra for the first time that day. In the cross-examination the memory of this witness was tested but neither could he give the scooter number of his School Principal nor he remembered the dates of festivals like Holi, Diwali and Dashera.
10. Rajendra Kumar (PW-9) runs hotel in village Golyana situated at Sikar Road. In his deposition Rajendra Kumar stated that about ten months back around 11.30 p.m. three persons came to his hotel and dined there. Out of the three one was stout and two others were slim. Rajendra Kumar gave details of clothes wearing by them. Ram Singh and Mool Singh also came over there. After three days police took two persons to him. Rajendra Kumar identified the appellants in the trial Court and stated that they came to his hotel along with one more person, whom he could identify by photograph. Learned trial Court permitted the prosecution to show the photograph of the deceased. After seeing the photograph of the deceased Rajendra Kumar identified him as the third person came with the appellants at his shop. The photograph of the deceased was marked as Ex. P. 17. In the cross-examination Rajendra Kumar stated that after three days when the police took the appellants to him the appellants came in the same clothes which they were wearing while they visited his hotel. Rajendra Kumar further stated that he was not called by the police to identify the appellants.
11. Purushottam (PW-13) in his deposition stated that in the 8th month of 1993 at about 10.30 or 11.00 p.m. while he was playing cards with Bajranglal, Ram Chand and three others boys in a house opposite to Sati Temple three persons on scooter came over there. Identifying the appellant Umrao Singh this witness stated that he came to him along with other appellant Surendra and because of darkness he could not properly identify their clothes. Umrao told him that Thanedar was with them and they required one room. They were shown a Kothri but they did not stay and one stout person then told that they were drenched therefore it would be better to go to the house. Then all the three proceeded on scooter. Umrao Singh was under intoxication. Photograph of deceased Narpat Singh (Ex. P. 17) was shown to the witness and the witness identified it as one of the person came with the appellants.
12. Ram Singh PW-20, deposed that on 6.8.1993 around 11.00 p.m. when he was sitting along with Mool Singh Nakedar at the Dhaba of Rajendra three persons came on blue coloured scooter bearing No. RJ-232 M 0837. He could identify Narpat Singh and had a talk with him. Narpat Singh told him that he was on a picnic and disclosed the names of Umrao Singh and Surendra Singh to him. This witness identified the appellants Umrao Singh and Surendra Singh in the trial Court and stated that all the three had dined together and left on the scooter. When the appellants were taken to him by the police he disclosed that they were with Narpat Singh on that night. In the cross-examination this witness stated that on 12.8.1993 the police took the appellants to him. Although he had read the news of Narpat Singh murder in the new paper but he had not gone to the police of his own.
13. Mool Singh (PW-21) had almost repeated the version narrated by Ram Singh (PW-20).
14. It is thus evident that the investigating officer did not hold the identification parade and took the appellants to the witnesses in the course of investigation and the witnesses have identified the appellants in the trial Court. It appears from the testimony of Rajendra Kumar, Purushottam, Ram Singh and Mool Singh that they did not know the appellants and had seen them for the first time. Their Lordships of the Supreme Court considering the importance of identification where the offender was unknown to the witness, indicated in State of H.P. v. Lekhraj and Anr. that though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the Court was the real person involved in the commission of the crime. The identification parade even if held, cannot in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant.
15. In Ahmed Bin Salam v. State of Andhra Pradesh (1999) CrLR. (SC) 266, it was propounded that the so called identification of the accused persons by the witness after two years in course of trail is of no consequence and on such identification it cannot be said that the prosecution has been able to bring home the charge against the accused.
16. In yet another case Vijayaan @ Rajan v. State of Kerala (1999) CrLR (SC) 259, it was held that identification of accused in the Court after 5 years of incident could not be relied upon.
17. George and Ors. v. State of Kerala and Anr. was the case where the Hon'ble Supreme Court observed that not holding of identification parade is not fatal, yet absence of corroborative evidence of prior identification in a test identification parade makes the substantive evidence of identification in Court after a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence.
18. As already stated Rajendra Kumar (PW-9) in his cross examination deposed that the appellants again came to him with the police after three days in the same clothes which were wearing by them when they came along with deceased to his Hotel. This version is false on the ground that the clothes of the appellant Surendra Kumar were already recovered on 9.8.1993 vide Ex. P. 3 and it was not possible for the appellant Surendra Kumar to go with the police to the shop of Rajendra Kumar (PW-9) wearing the same clothes.
19. Coming to the testimony of Chitranjan Singh, the son of deceased Narpat Singh, it may be noticed that he did not state in his police statement Ex. D. 1 that he had seen his father and appellants together going on a scooter. It is for the first time in the trial Court that he disclosed this fact and even gave the scooter number on which his father and appellants had gone together. No reliance can be placed on this testimony which is of serious contradictions and meaningful embellishments. So far as other witnesses Rajendra Kumar (PW-9), Purushottam (PW13), Ram Singh (PW-20), and Mool Singh (PW-21) are concerned they were respectively examined in the trial Court on 27.5.1994, 17.9.1994, 25.10.1994 and 1.11.1994, whereas the incident according to the prosecution had taken place in the intervening night of August 7, and August 8, 1993. The so called identification of the appellants by these witnesses after lapse of one year in the course of trial in our considered opinion is of no consequence and on such identification it can not be held that the prosecution has been able to bring home charge against the appellants. It is quite impossible that a person who had seen the face of appellants for a while to remember that face for the purposes of identification after a lapse of one year.
20. We find ourselves unable to place reliance on the testimony of Rajendra Kumar, Purushottam, Ram Singh and Mool Singh and hold that identification of the appellants for the first time in the trial Court after one year of the incident could not have been the safe and trustworthy evidence. As the appellants were not known to the witnesses, rule of prudence to hold the test identification parade ought to have been followed by the investigating officer. In absence of prior identification in a test identification parade, the identification of the accused in the Court for the first time after a lapse of one year, is a weak piece of evidence and can not be made the basis to bring home the charge against the accused. The prosecution thus failed to establish the circumstance of 'last seen' beyond reasonable doubt.
21. That takes us to the another circumstance relating to alleged disclosure statement of the appellants and the recovery memos of blood 'stained clothes, knife, iron Kassi (spade) empty bottle of liquor, Chappals, keys, watch, bag, calculator, Ring, Pass book, Bhagwadgita, spectacles and cash.
22. Umrao Singh and Surendra Kumar both came to be arrested on 9.8.1993 vide Ex. P. 26 and Ex. P. 27 by Vishambhar Dayal I.O. (PW-23). Umrao Singh vide Ex. P. 28 gave information that he had concealed one spade, spectacle, empty bottle half of liquor, one pair of Chappals, cash, office keys, Pass-Book of Narpat Singh, Diary, Calculator etc. in a Kotri situated at the entrance of SMS. Girls College, that could be recovered. Recovery of bag of black colour was effected at the instance of Umrao Singh vide memo Ex. P.14 from the Kotri situated near the left side of main gate of Shri Krishna Satsang Girls College on 9.8.1993 in the presence of Sohan Lal (PW-8) and Bhopal Singh. The bag contained cash in the sum of Rs. 28,734/-, 8 key, calculator, Duplicate copy of Pass-Book of Narpat Singh, Diary, Receipt of acknowledgment dues sent by Narpat Singh, spectacle, Bhagwadgita, and four pencils. Vide memo Ex. P. 15 on 9.8.1993 clones, handkerchief, Iron Kassi (spade), half bottle of liquor empty and one pair of Chappals were recovered.
23. Umrao Singh was again taken to the said Kotri on 18.8.1993 by Mahipal C.I. Crime Assistant and at the instance of Umrao Singh one citizen watch was recovered vide memo Ex. P.18 in the presence of Udham Singh (PW-12) and Sumer Singh.
24. Disclosure statement of Surendra Kumar allegedly made to Vishambhar Dayal I.O. (PW-23) on 9.8.1993 was recorded in Ex. P. 29 wherein Surendra Kumar gave information that he had concealed one golden ring in the Almirah of his room and knife in his house and the same could be recovered. Vide memos Ex. P. 12 and Ex. P. 4 ring and knife were recovered at the instance of Surendra Kumar on 9.8.1993 by Vishambhar Dayal (PW-23) on 9.8.1993 in the presence of Bhanwar Singh and Samandar Singh (PW-1).
25. A close look at the material on record demonstrates that the instant case was investigated by three investigating officers. Bhanwar Singh (PW-22) who was ASI at P.S. Raghunath Garh on 7.8.1993 registered FIR (Ex.P 8), drew site plan (Ex. P. 9), and Inquest Report (Ex. P. 6). Vishambhar Dayal (PW-23) was SHO at P.S. Raghunathgarh. As per his deposition investigation of the case was handed over to him by Bhanwar Singh on 9.8.1993. Mahipal C.I also investigated the case and recovered citizen watch vide Ex. P. 18 on 18.8.1993. Having considered the statements of witnesses Vishambhar Dayal (PW-23), Bhanwar Singh (PW-22), Samandar Singh (PW-1) Sohan Lal (PW-8), and Udham Singh (PW-8) [Sic (PW-12)] and on perusal of aforequoted disclosure statements and recovery memos the fact situation that emerges may be summarized thus:
(i) As per the statement of Samandar Singh (PW-1) Motbir of recovery memos of P. 2 and Ex. P. 4 he was not a neighbour of Surendra Kumar but did reside in the vicinity of deceased Narpat Singh and he had seen Surendra Kumar for the first time. Samandar Singh admitted the presence of the grand father of Surendra Kumar in the room from where the recovery was effected. He stated that the ring was kept in the pocket of 'Jaket' and 'Jaket' was also seized. He did not know whether the knife was stained with blood or not but its blade was of three inches fixed in the handle made of iron and there was a band in it. It was different from the knives usually used in kitchens. Vishambhar Dayal I.O. (PW-23) on the other hand stated that the knife recovered at the instance of Surendra Kumar was amongst those knives usually used in the kitchens and its handle was made of wood. According to Vishambhar Dayal Motbirs of recovery viz. Samandar Singh and Bhanwar Singh were the neighbourers of deceased Narpat Singh. He did not know whether Surendra Kumar did reside in his house with joint family and 'Jaket' was not seized by him. As per description of knife given in the recovery memo (Ex. P. 4) handle was of wood and no where it was stated that it was stained with blood. But the Chaku (knife) that was sent to FSL was found stained with human blood but blood group could not be determined.
(ii) On 8.8.1993 when Bhanwar Singh I.O. drew seizure memo (Ex. P. 1) of the clothes of the deceased, Motbir Samandar Singh (PW-1) put his signatures.
(iii) From the recovery memos Ex. P. 14 and Ex. P. 15 it does not appear as to in whose possession the Kotri situated at the main gate of girls Colleges was. Nowhere it was mentioned that the Kotri was locked and it was opened by key. Sohan Lal (PW-8) who has honorary joint secretary in the college though deposed in the examination-in-chief that Kotri was given to Umrao Singh who working in the College on the post of Chowkidar but in his cross-examination Sohan Lal stated no written orders however in regard to appointment on the post of Chowkidar or allotment of Kotri were issued. Sohan Lal further deposed that the lock of Kotri was opened by Umrao Singh by the key which was in his possession but lock and key were not seized by the police.
(iv) As per the testimony of Udham Singh (PW-13) [Sic (PW-12)] Umrao Singh on 18.8.1993 was in the custody of Mahipal C.I. on that day Umrao Singh was taken to the Kotri which was locked and key was not available. The lock was broke open by Umrao Singh and citizen watch was got recovered at the instance of Umrao Singh.
26. It is thus evident that the prosecution has failed to prove exclusive possession of Surendra Kumar over the house from where the ring and knife were recovered. Evidence of Samandar Singh and Vishambhar Dayal is diametrical opposite to each other. Samandar Singh is the neighbour of deceased Narpat Singh and he was made witness by both the investigating officer Bhanwar Singh and Vishamber Dayal. No independent person from the vicinity of the house of Surendra Kumar was associated with the recovery. No satisfactory evidence was produced to establish that the ring recovered vide Ex. P. 2 belonged to the deceased Narpat Singh. Recovery memos Ex. P. 14 and Ex. P. 15 do not reveal that on 9.8.1993 the Kotri was in exclusive possession of Umrao Singh. No documentary proof about its allotment to Umrao Singh was placed on record. Statement of Sohan Lal that the lock put on the Kotri was got open by the key possessed by Umrao Singh, is not corroborated by the testimony of Vishambhar Dayal and the recovery memos Ex. P. 14 and Ex. P. 15. The prosecution came up with another story of recovery of citizen watch from the said Kotri at the instance of Umrao Singh on 18.8.1993. This time as per the statement of Udham Singh (PW-13) [Sic (PW-12)] Kotri was locked and as its key was not available, the lock was broke open by Umrao Singh. Laxmi Sharma (PW-11) who was the Principal of the Girls College also stated in her cross-examination that she was not in a. position to say whether order in respect of allotment of Kotri was issued in favour of Umrao Singh or not?
27. The articles so recovered at the instance of Umrao Singh were got identified by the son and wife of the deceased. In the identification memo (Ex. P. 20) it was stated in column No. 2 that ring was recovered from the accused Suresh and Sh. Manoj Kumar Judicial Magistrate (PW-24) who conducted identification proceedings also testified it in his deposition.
28. Devi Singh (DW-3) was examined by the appellants in defence. In his deposition Devi Singh stated that he met with Narpat Sing around 1 p.m. on 4.8.1993 to seek employment and was advised by Narpat Singh to meet him on next Sunday. On August 4, Narpat Singh dragged out one Suresh Ginodiya from the college and Suresh Ginodiya threatened Narpat Singh to kill. When on next Sunday he went to the house of Narpat Singh, he found police persons there. He informed the police persons that Suresh Ginodiya had threatened Narpat Singh. In his presence police persons took a black bag and 'Khaki Thela' from the house of Narpat Singh. Mohan Kanwar the wife of Narpat Singh handed over keys, Chappals, calculator, Pens and Gutka of Geeta press. The black bags contained some cash. The appellant Umrao Singh also gave explanation in the statement under Section 313, CrPC that Suresh Ginodiya gave threatening to Narpat Singh on 4.8.1993 and Narpat Singh did not attend the college on August 5 and 6, thereafter his missing report was lodged by his family members on seventh. Umrao Singh stated that he was not a Chowkidar but a fourth class employee in the college. Surendra Kumar in his statement under Section 313, CrPC stated that he was residing with his grand father, grand mother and four brothers in one house. He had a tailoring shop in the name and style of 'Uttam Tailor' where six-seven employees used to work. Police had initially detained Suresh Ginodiya but substituted him by implicating the appellants falsely.
29. Having scanned the prosecution and defence evidence we are of the view that the investigating officer in the instant case failed to adduce the evidence that has a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. The investigating officer could not collect the threads of evidence finding out the path which leads to the culprit. There are many missing links in prosecution evidence.
30. In Subhash Chand v. State of Rajasthan, 2001 CrLR (SC) 670, their Lordships of the Supreme Court observed as under--
....Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shanker Lal Gyarsi Lal Dixit's case AIR 1981 SC 765, this Court cautioned- "human nature is too willing, when faced with brutal crimes to spin stories out of strong suspicious." This Court has held time and again that between 'may be true' and 'must be true' there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.
31. For the reasons already indicated, we are of the opinion that the prosecution has utterly failed to bring home the charges under Sections 302 & 201, IPC against the appellants beyond reasonable doubt. We, therefore, set aside the conviction and sentence passed by the learned trial Court vide impugned judgment and acquit the appellants Umrao Singh and Surendra Kumar from the said charges. Appellants Umrao Singh and Surendra Kumar are in jail. They shall be set at liberty if not required in any other case.
32. Both the appeals stand allowed accordingly.