Rajasthan High Court - Jodhpur
Babu Singh vs State on 14 February, 2013
Author: Govind Mathur
Bench: Govind Mathur
-1-
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T
Babu Singh vs. State of Rajasthan
D.B.Criminal Jail Appeal No.958/2005
against the judgment dated 25.5.2005
passed by Additional Sessions Judge
(Fast Track), Rajsamand, in Sessions
Case No.5/2005(2/2005).
Date of Judgment :: 14th February, 2013
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE BANWARI LAL SHARMA
Mr. D.S.Dhind, Amicus Curiae, for the appellant.
Mr. K.R.Bishnoi, Public Prosecutor, for the State.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
REPORTABLE By the judgment dated 25.5.2005, passed by learned Additional Sessions Judge (Fast Track), Rajsamand, accused appellant Babu Singh son of Tej Singh, by caste Rawat-Rajput, resident of Siyaji Ki Guwar, Police Station Bheem, District Rajsamand, was convicted for the offence punishable under Section 302 Indian Penal Code and sentenced to undergo life term imprisonment with a fine of Rs.1000/- and further to undergo three months additional imprisonment in the event of default in payment of fine. The jail appeal giving challenge to the judgment and order aforesaid is before us.
In brief, facts of the case are that on 17.2.2004 at about 08:30 AM, the Station House Officer of Police -2- Station Rajnagar, District Rajsamand, reduced in writing a statement given by Shri Udailal son of Mohanlal at opposite Moonlight Marbal, National High Way No.8, Badarda, District Rajsamand. As per the statement reduced in writing (Ex.P/1), At about 07:00 AM Udailal, a tea trolley vendor, came to his trolley installed outside the Moonlight Marble. A closed body parcel van bearing No.GJ-18-T-9084 was parked close to the tea trolley having face towards the direction of Town Nathdwara. Udailal was under impression that the driver etc. of the van concerned must either be sleeping or may have gone to have tea etc. Udailal involved himself in his routine work and certain drivers of other vehicles came to him to have tea. Someone amongst those conveyed that one person was lying in the cabin of the parcel van and was breathing rapidly. Udailal then saw inside the parcel van, where a man was lying in cabin wrapped with a blanket and was breathing too fast. Udailal made a call for the person responsible with the parcel van, but of no consequence. Udailal then saw the person lying in the parcel van from close and found that he was having serious injuries on his face and blood was oozing. He also found blood stains on the seat and ceiling of the parcel van. He then conveyed this fact to Raju Bhai Gujar, a staff member working at Neelam Marbles. Raju Bhai Gujar then gave a telephonic information to Police Station Nathdwara. After some time police personnels arrived at the spot.
On basis of the information received, a criminal case was registered and necessary investigation commenced for commission of an offence punishable under Section 307 -3- Indian Penal Code. During the course of investigation the injured person found in the parcel van died on 20.2.2004 at Ahmadabad. The investigation, thus, was made for commission of an offence punishable under Section 302 Indian Penal Code. After completion of investigation, a police report as per provisions of Section 173 Cr.P.C. was presented before the court of learned Chief Judicial Magistrate, Rajsamand, who committed the case to the court of Sessions and then the same was transferred to the court of learned Additional Sessions Judge (Fast Track), Rajsamand. Learned Additional Sessions Judge, after hearing counsel for the accused appellant, framed charge for commission of the offence punishable under Section 302 Indian Penal Code. On denial of the same, trial commenced as desired.
The prosecution supported its case with the aid of 24 witnesses (PW-1 to PW-24) and by exhibiting the documents Ex.P/1 to Ex.P/26. An opportunity was given to the accused appellant to explain the adverse circumstances available in prosecution evidence, wherein he termed all the adverse circumstances as false and pleaded innocence. No evidence was adduced in defence.
Learned trial court, after considering the arguments advanced by learned Public Prosecutor and learned counsel for the accused appellant, recorded impugned conviction and awarded sentence.
In appeal, the submission of learned Amicus Curiae Shri D.S.Dhind, is that the conviction impugned is -4- based on circumstantial evidence, but the circumstances so existing are not sufficient to arrive at any conclusion about definite involvement of the accused in the crime in question. It is asserted that the accused was arrested after a period of about ten months from the date of incident, the recovery of a wheel spanner on which trial court heavily relied upon has not been established and the evidence pertaining to last seen too is also not reliable.
While supporting the conviction recorded and sentence awarded, it is submitted by learned Public Prosecutor that a complete chain of circumstances exists in the matter to indicate involvement of the accused in the crime in question. It is asserted that the prosecution witnesses PW-3 Laldas, PW-4 Ganpat Singh and PW-5 Ratan Singh in definite terms pointed out the company of the deceased with the accused appellant. PW-3 Laldas, after arrest of the accused, adequately identified him. At the time of arrest, a wallet of the accused appellant was seized wherefrom a photo of the deceased with his wife, an independent photograph of wife of the deceased and a piece of paper having postal address of deceased Shaitan Singh were recovered. A wheel spanner was also recovered on basis of the information given by the accused appellant, therefore, the circumstances are adequately forming a chain about the involvement of the accused appellant with the crime.
Heard counsel for the accused appellant and the learned Public Prosecutor.
-5-
The accused appellant has been convicted by the trial court with the aid of the circumstances those can be arraigned as under:-
1.Availability of grease can in the parcel van No.GJ-
18-T-9084 having the name of the accused appellant painted;
2.Deceased Shaitan Singh was lastly seen in the company of the accused appellant;
3.The accused was identified by PW-3 Laldas;
4.At the time of arrest a wallet of the accused appellant was seized wherefrom a photograph of deceased with his wife, an independent photograph of the wife of the deceased and a piece of paper having postal address of deceased Shaitan Singh were recovered; and
5.The accused tendered an information on 2.12.2004 at 11:00 AM about a wheel spanner which was recovered at his instance from a nearby river.
As per learned Public Prosecutor, all these circumstances are sufficient to arrive at the conclusion that the accused appellant was involved in the crime in question and he murdered Shaitan Singh, as such, the conviction recorded and sentence awarded are well founded.
Before examining the circumstances noticed above, it shall be appropriate to mention that PW-18 Shri Jaswant Singh, the investigating officer, at the time of examination of his testimony, stated that on receiving -6- telephonic information from PW-2 Vijay Singh about availability of an injured person in parcel van, he went to the place of occurrence. He found a man seriously injured lying in the cabin of the parcel van. The man was immediately taken to the District Hospital, Rajsamand for treatment. The injured person was identified as Shaitan Singh and during the course of treatment he died on 20.2.2004 at Ahmadabad. The postmortem report and other documents relating to treatment of the deceased were taken on record being produced by the Assistant Sub Inspector Bhanwar Singh.
As per PW-10 Shri Prem Singh, father of the deceased, he rushed to Udaipur Hospital with Shri Pratap Singh and Kesar Singh on receiving information about ill- happening with his son Shaitan Singh (deceased).
PW-14 Shri Rajendra Kumar stated that he was the registered owner of the vehicle No.GJ-18-T-9084 whereon deceased Shaitan Singh and Chain Singh working as driver. On receiving information about ill-happening with Shaitan Singh from Police Station, Rajsamand on 16.2.2004, he alongwith PW-10 Prem Singh went to Udaipur Hospital. This witness further stated that Shaitan Singh then was taken to Ahmadabad for further treatment.
On basis of the statements made by PW-18 Jaswant Singh, PW-10 Prem Singh and PW-14 Rajendra Kumar, the factual position emerges out is that -
-7-
- an information was given from the Police Station, Rajsamand to registered owner of the parcel van about the incident in question;
- the registered owner PW-14 Shri Rajendra Kumar and PW-10 Prem Singh, father of deceased Shaitan Singh, went to Udaipur Hospital where Shaitan Singh was availing treatment;
- Shri Shaitan Singh then was taken to Ahmadabad for treatment;
- Shri Shaitan Singh while availing treatment at Ahmadabad died on 20.2.2004;
- The Postmortem report and certain other documents pertaining to treatment of Shri Shaitan Singh were made available to the investigating agency and were taken on record by the investigating agency being submitted by Shri Bhanwar Singh, Assistant Sub Inspector, Police Station Rajsamand;
The postmortem report, said to be placed on record through Bhanwar Singh, is available on record of the trial court, but the same was not exhibited. However, the counsel for the accused by mentioning the term "स क र ह" and by putting his signatures thereon on 7.4.2005, admitted the postmortem report. Relying upon the admission made by counsel, learned trial court accepted the note of opinion given in the postmortem report as cardio respiratory failure due to complications of head injury and arrived at the conclusion about homicidal death of Shaitan Singh. Suffice to mention that the doctor, who conducted autopsy on the person of Shaitan Singh, was not examined by the -8- trial court. The resultant is that the conclusion of the trial court about homicidal death of Shaitan Singh is based on the postmortem report that was neither exhibited nor the doctor who conducted autopsy provided narration of the cause of death on oath.
In Ganpat Raoji Suryavanshi V. The State of Maharashtra, 1980 Cr.L.J. 853, a Division Bench of Bombay High Court held as under:-
"In Re Rangappa Goundan ILR (1936) 59 Mad
349), the Division Bench of the Madras High Court pointed out that in a murder case, no consent or admission by the accused's Advocate to dispense with the medical witness would relieve the prosecution of proving by evidence the nature of the injuries received by the deceased and that the injuries were the cause of death. It has been pointed out that the post-mortem report was not evidence and could only be used by the witness who conducted the post-mortem enquiry as an aid to memory. The facts of that case disclose that the Public Prosecutor asked the defence Advocate if he wished to examine the medical witness, who had in fact been present in the Court. The defence Advocate answered in the negative. The result was that no evidence was given at the trial with regard to the injuries received by the deceased or to the cause of his death or whether the injuries received by him were responsible for death.
In view of this state of prosecution
evidence, it was pointed out that the
consequence was that an essential element of proof of the crime alleged against the two accused was wanting and the conviction which -9- had taken place in the absence of that evidence could not stand. The learned Sessions Judge's reliance upon the post-
mortem report as establishing beyond doubt that the man was murdered was disapproved in the following terms:-
"But a post-mortem report proves nothing. It is not even evidence, and can only be used by the witness who conducted the post-mortem inquiry as an aid to memory. These propositions have already been stated in Queen Empress v. Jadub Das (l900) ILR 27 Cal 295"."
By taking into consideration the judgment aforesaid a Division Bench of Punjab and Haryana High Court in Pal Singh v. the State of Punjab, 1995 Cr.L.J. 3596, concluded that the postmortem report is only a kind of previous statement of the medical officer based on his examination of the dead body. It is the statement of medical officer made on oath in the court that alone could be treated as substantive piece of evidence and not the postmortem report. The postmortem report cannot be tendered in evidence by resorting the provision of Section 294 of Code of Criminal Procedure and the postmortem report placed on record as an exhibit does not acquire evidentiary value of a proved document regarding the cause of death, without the aid of medical officer making autopsy. We are in absolute agreement with the legal conclusion noticed above. Merely on the count that -10- counsel for the accused admitted the postmortem report, no conclusion about the cause of death could have been given by the trial court on basis of the report aforesaid. As a matter of fact the admission of counsel is only to the extent of the existence of the document and not of its contents. The prosecution was supposed to prove contents of the report by producing medical officer in evidence.
Even otherwise also, it is also relevant to note that in the postmortem report aforesaid the cause of death given is not the head injury but the complications occurred due to that, as such the trial court erred in accepting the homicidal death "ipse- dixit".
Coming to the other circumstances, suffice to mention that the grease cane said to be recovered from the parcel van bearing No.GJ-18-T-9084, as per the prosecution was having name of the accused painted, but PW-15 Chain Singh in quite unambiguous terms stated that the grease cane was thoroughly examined by him and that was not having any name painted thereon. Similarly, PW-17 Bhanwar Singh also stated that he saw the grease cane at Police Station Rajnagar and that was not carrying name of any person.
-11-
Looking to the statements of these two witnesses, we are of the opinion that this circumstance in no manner supports the prosecution case.
So far as the evidence pertaining to last seen is concerned, suffice to note that PW-4 Ganpat Singh stated that he saw Babu Singh with Shaitan Singh. However, he was not knowing Babu Singh previously. He came to know about his name on saying by other persons at subsequent stage.
PW-5 Ratan Singh certainly stated about the company of Babu Singh with deceased Shaitan Singh on the fateful day.
PW-3 Laldas stated that on the fateful day at about 01:30 AM he saw a parcel van and he was desirous to have lift in that to go to Karjia Ghati. In the parcel van he saw two persons, out of whom one was identified by him at District Prison Rajsamand. The person identified was the accused present in court.
The next circumstance on which the prosecution relied and the trial court accepted is recovery of a wallet having photograph of deceased
with his wife and an independent photograph of the -12- wife of the deceased with a piece of paper having postal address of Shaitan Singh (deceased). As already stated, the accused appellant was arrested after a lapse of more than nine months from the date of incident. Keeping of a photograph of a deceased with his address at this belated stage appears quite abnormal and not in accordance with the normal human nature. The picture of the wife of the deceased too was recovered from the accused and no reason is extended for having that. Suffice to mention that it is not the case of prosecution that the accused was having any relation with wife of the deceased and that would had been motive for causing murder. The recovery of wheel spanner also does not support the prosecution story. The witness of recovery have not supported the prosecution case. As per PW-8 Dinesh, the police availed his signatures on blank papers under threatening. The recovery of wheel spanner is further not reliable being made from an open place after a lapse of more than nine months from the date of incident.
In view of the discussions made above, the conclusion that may be arrived by the evidence available is that Shri Shaitan Singh was found on 17.2.2004 in injured position from a parcel van, he was taken to the Government Hospital, Rajsamand, then he was taken to Udaipur Hospital and then to -13- Ahmadabad, where he died on 20.2.2004. Accused was seen in company of the deceased at Bheem. No adequate material further is available to establish causing of injuries to Shaitan Singh and his death by or with the aid of the accused. The chain of circumstances as such is not complete and a reasonable doubt exists in believing the prosecution story, as such, the prosecution failed to establish the charge levelled.
Accordingly, the appeal is allowed. The judgment dated 25.5.2005 passed by learned Additional Sessions Judge (Fast Track), Rajsamand in Sessions Case No.5/2005 (2/2005) is set aside. The accused- appellant is acquitted from the charge of commission of offence punishable under Section 302 Indian Penal Code. As a consequent to setting aside of the conviction, the sentence awarded is also set aside. The accused-appellant be released from State custody forthwith, if not otherwise required in any other case.
(BANWARI LAL SHARMA),J. (GOVIND MATHUR),J. -14- Mathuria KK/ps.