Rajasthan High Court - Jaipur
Jagtar Singh vs State Of Rajasthan on 20 February, 1987
Equivalent citations: 1987WLN(UC)327
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT Ashok Kumar Mathur, J.
1. This is an appeal against the judgment of the learned Sessions Judge, Bikaner dated 7-7-1981 where by the accused appellant was convicted under Sections 302 and 404 IPC and sentenced him to life imprisonment and a fine of Rs. 500/- under Section 302, IPC and 1 year's rigorus imprisonment with fine Rs. 100/- under Section 404 IPC and in default of payment of fine to further undergo 4 months rigorous imprisonment and 1 month's rigorous imprisonment respectively.
2. The facts giving rise to this appeal are that in the night intervening between 26 and 27th September, 1979 Bhopal Singh PW 6 who was T.X R. was informed by the railway staff's Shiv Kishan, Carpenter that in coach No. 806 which was on washing line No. 2 a dead body is lying in the toilet of this coach, Bhopal Singh went to the toilet and found that one person aged between 40 to 45 was lying dead. He sent a memo Ex. P 3 to S.H.O., G.R.P. On receiving this memo Jeet Singh PW 18 S.H.O., G.R P. registered this as First Information Report and went to see coach No. 806. On reaching there he took the dead body and prepared the Ex. P 23 and thereafter site plan Ex. P 24. The clothes of the dead body were also seized. All the articles recovered from the pocket of the deceased were also seized. During the inspection of dead body, it was found that the deceased has been strangulated. On the basis of this First Information Report, the investigation was taken up and during the course of investigation, it was found that the dead body is of deceased Om Prakash Agarwal resident of Khajuwala who has business of wood and iron. On establishing the identity of the deceased the son of deceased Ramesh Kumar PW 13 was contacted. Thereafter, he indentified the dead body to be of his father. It further came to the notice that deceased Om Prakash was resident of village Goluwala Mandi District Sri Ganganagar and he had a shop at Khajuwala. In fact, he was going to Sri Ganganagar via Bikaner. It further came to the notice that the accused Jagtar Singh was at one time an employee of Om Prakash. Deceased Om Prakash removed him from his shop when he found that he has committed theft at his shop. Thereafter, accused Jagtar Singh started working at Samundra Singh's shop. There co accused Ramesh Kumar was also working. On 26-9-1979 at about 9 to 10 a.m. Jagroop Singh and Om Prakash were taking their food at that time both the accused persons came there and some food was also given to these persons by Jagroop Singh and Om Prakash. On that day, deceased Om Prakash wanted to go to his village Goluwala Mandi. He took about Rs. 1,400/-from his partner Jagroop Singh for payment and Rs. 400/. from one Choudhary. He with this amount along with one black hand bag boarded a bus at Bikaner at 2 p.m. Both these accused persons are said to have boarded the same bus. At Bikaner when they got down at Jassusar Gate and took a Tonga on hire and in that deceased Om Prakash along-with two accused persons. Pradeep Kumar, Santok Singh and Jogendra Kaur PW 1 also travelled. They went to Railway Station, Bikaner. As Jogendra Kaur and her husband were also going to Sri Ganganagar, deceased Om Prakash asked them to keep some space for him also in the compartment and they may also take his ticket. Om Prakash got down near Kot Gate but mean while both the accused persons also got down. A ticket was purchased for Om Prakash by Santok Singh Jogendra Kaur and her hushand. Deceased Om Prakash reached at the railway station before the departure time of the train where he found all of them sitting, namely, Jogendra Kaur, Santok Singh and her husband. The train for Sri Ganganagar was in siding and it has not arrived at the platform. The deceased handed over his hand-bag to Jogendra Kaur and her husband and went to toilet and since there was no water in the toilet therefore he told them that he is going to another compartment. The deceased went to another train, which was standing there for easing himself. It is said that both the accused persons had followed him there. Thereafter, neither the accused persons came nor Om Prakash turned up. The train came to the main platform and left for Sri Ganganagar. But neither deceased Om Prakash turned up nor both the accused persons came there. The hand bag of the deceased, Om Prakash, remained with Jogendra Kaur and her husband. They handed over this to Santok Singh because it is said that Santok Singh was known to deceased Om Prakash. This black hand bag was handed over by Santok Singh to the police on 27-10 1979. During the course of investigation both the accused persons were arrested on 5-10-1979. When the accused persons were in the custody of police, they gave information on 7-10-1979. On the information given by accused Ramesh Kumar, the police recovered a sum of Rs. 700/- of Rs. 100/- denomination from his house at Khajuwala from one pillow. On 10-10-1979 accused Jagtar Singh also got Rs. 700/- from a purse recovered at his instance. This was got recovered from the house of the accused by opening the lock. He also got recovered one printed card of deceased Om Prakash and one paper in which the account of deceased Om Prakash was written. This purse was got identified by Ramesh Kumar son of the deceased. Similarly, that account paper Ex. P 2 was also identified by Ramesh Kumar to be in the hand writing of deceased Om Prakash. One white Safa and towel were also got recovered from the dead body. The Safa is said to be of accused Jagtar Singh while the Towel is said to have belonged to accused Ramesh Kumar. It is alleged that this was purchased by accused Ramesh Kumar from the shop of Gauri Shanker PW 12. After close of the investigation, the accused persons were sent for trial under Section 302 read with Sections 34 and 394 or in the alternative under Section 404 IPC.
3. The prosecution examined about 23 witnesses and filed a large number of documents. Accused also produced Jagroop Singh as DW 1 The learned trial Judge after due trial found the accused Jagtar Singh guilty under Sections 302 and 404 IPC. However, he acquitted the accused Ramesh Kumar of all the charges. Aggrieved against this, Jagtar accused has filed this appeal.
4. Learned Counsel for the appellant submitted that in the present case the evidence against the accused Jagtar Singh is only circumstantial evidence and there is no direct evidence. The circumstances which the prosecution wanted to prove against the accused are of last seen, recovery of Rs. 700/-, one purse and one account paper which is said to have been recovered at the instance of the accused and the motive. Mr. Garg learned Counsel for the appellant has streneously urged that the circumstances which have been used by the prosecution has failed to establish the guilt of the accused. In this connection, learned Counsel submitted that so far as last seen evidence is concerned that in itself is not sufficient and he has further submitted that for the purpose of proving the evidence of last seen, Jogendra Kaur and Santok Singh have been produced by the prosecution who are said to be co-passengers in Tonga. Learned Counsel submitted that both these accused persons were not put to identification parade that whether these accused persons are the same who were last seen with the deceased. We have examined this aspect closely and have gone through the evidence of PW 1 Jogendra Kaur and PW 10 Santok Singh. Though the learned Sessions Judge did not attach much importance to the identification parade. But Mr. Garg, learned Counsel for the appellant has emphasised that without putting these accused persons to identification parade the identification of the accused in the court by these witnesses hardly carries much weight. In this connection, learned Counsel has invited our attention to State (Delhi Admn.) v. V.C. Shukla & Am (1) AIR 1980 SC 1372 and Kanan and Ors. v. State of Kerala (2).
5. In the case of Kanan and Ors. (2) 1979 Cr.LJ 601 it was observed that in the absence of test identification parade the testimony of witness identifying the accused in the court for the first time has to be excluded from consideration. Their Lordships of the Supreme Court observed as under in the aforesaid case:
The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question f his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his mere testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. parade and get the identification made before the witness was called upon to identify the appellant in the court. On this ground alone, the testimony of PW 25 becomes unworthy on credence and must be excluded from consideration.
6. Likewise, in V.C. Shukla's case (1) their Lordships of the Supreme Court obseved as under:
identification of a person by witness for first time in Court without being tested by a prior test identification parade is valueless.
Viewing the infirmity in the present case that whether in the absence of the identification parade the testimonoy of PW 1 Jogendra Kaur and PW 10 Santok Singh should be accepted or not. It is an admitted fact that the identification parade of the accused persons was not held prior to the inentification of these accused persons by these witnesses in the court. Both these witnesses have also deposed that they are not known to these accused persons nor are they familiar with them. Obviously for this reason that both these witnesses have no occasion to see these accused persons earlier. Thus, in the absence of identification parade it seriously cast doubt on this circumstance at last seen. These accused persons have not been put to identification parade and such identification of the accused persons in the court being valueless then the evidence of these witnesses of last seen the accused persons with deceased ceased to have much relevance. Thus, when this piece of circumstantial evidence goes out then next comes the recovery of the belongings of the deceased from the accused Jagtar Singh. According to the prosecution a purse along with Rs. 700/-bearing the photo of deceased in that purse and one account paper Ex. P 2 were recovered at the instance of the accused. Mr. Garg has invited our attention to the statement of PW 18 Jeet Singh who was the Station House Officer at Railway Police Station and he was the first person to reach at the scene of occurrence i.e. toilet from where the dead body was recovered. Ha has deposed that this account paper Ex. P 2 was found in the pocket of the deceased. Similarly, PW 13 Ramesh Kumar son of the deceased has a so deposed that this account paper was in the pocket of the deceased and it appears to have been recovered later on. But no information has been given by the accused leading to the recovery of this account paper Ex P 2 Mr. Garg, learned Counsel submitted that if the prosecution could wrongly plant this account paper Ex. P 2 and get it recovered at the instance of the accused then purse and the amount can easily be planted. After going through the evidence of both these witnesses we are of the opinion that in fact this account paper was never recovered from the house of the accused No information was given by the accused for recovery of this account paper Ex. P2 It is apparent from the evidence of PW 13 and PW 18 that these articles were in the pocket of the deceased when his body was recovered from the toilet Next remains the recovery of purse and the amount of Rs. 700/-. So far as Rs. 700/- are concerned that is currency notes which are not identifiable There only remains the purse of the deceased. In the back-ground of the circumstances which brought to our notice it will not be safe to rely on this piece of evidence for confirming the conviction and sentence of the accused under Section 302 IPC.
7. It is said that one Safa and one towel which were tied at the body of the deceased by which he has been strangulated were recovered from the dead body of the deceased. The Safa is said to have belonged to accused Jagtar Singh and the towel is said to be belonged to Ramesh Kumar. So far as Ramesh Kumar is concerned he has been acquitted therefore we are not concerned with the towel. So far as the Safa which has been found tied at the deceased and it is said to have belonged to the accused. For this purpose the prosecution has examined one Jasbir Kaur PW 14 who is said to have washed the Safa of the accused. We have examined the testimony of PW 14 Jasbir Kaur and she is said to have washed this Safa. But her testimony cannot be believed for the simple reason that a litigation is going on between the accused and Jasbir Kaur. Secondly she has also deposed that when she was called it the police station, this Safa was lying on the table of the Station House Officer This Safa was not put to identification parade. Thus, it is not safe to rely on the testimony of PW 14 Jasbir Kaur as such the Safa cannot be connected with the accus. The last circumstantial evidence which remains is motive The motive for robbing the deceased as according to the prosecution was to steal the money. This is a too vague motive to connect the accused with this crime Thus, in the circumstances, we are of the opinion that the accused is entitled to benefit of doubt.
8. In the result we accept the appeal. The conviction and sentence of the accused appellant Jagtar Singh are set aside. He may be released forth with if not required in any other case.