Rajasthan High Court - Jaipur
Pappu Singh @ Papi vs State on 4 October, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T D.B. CRIMINAL JAIL APPEAL No.713/2004. Papu Singh @Pappi Vs. State of Rajasthan Date of Judgment :- October 4, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MRS.JUSTICE NISHA GUPTA Shri Deepak Sharma, Amicus Curiae for the accused-appellant. Shri Javed Choudhary, Public Prosecutor. **** Reportable BY THE COURT:-
1) This appeal has been received from the Superintendent, Central Jail Bharatpur on behalf of accused-appellant Papu Singh @Pappi assailing the judgment dated 29/03/2004 passed by learned Additional District and Sessions Judge (Fast Track) No.1 Dholpur in Sessions Case No.94/2003 whereby, he was convicted for offence u/S.302 IPC and sentenced to life imprisonment with fine of Rs.500/- and in default of payment of fine, he was required to further undergo simple imprisonment of one month.
2) Brief facts giving rise to this appeal are that a written report (Exb.P/10) was submitted by complainant Devi Singh (PW22) to S.H.O. Police Station Diholi, Dholpur on 11/05/2003 alleging therein that at 8.00 p.m. on 10/05/2003, his nephew-Ajay, who had gone to attend the marriage programme in the nearby village, was found missing. He was searched in the village but ultimately his dead body was found from Patwarghar around 11.00 p.m. in the night. Action be taken against the culprit.
3) On the basis of the above written report (Exb.P/10), police chalked out a regular first information report, being FIR No.67/2003 (Exb.P/12), on 28/06/2003 against the accused for offence u/S.302 IPC and started investigation. During the course of investigation, police arrested the accused-appellant and filed challan against him for offence u/S.302 IPC. The charge against him was framed for the said offence, which he denied and claimed to be tried. The prosecution produced twenty two prosecution witnesses and exhibited thirteen documents, whereas the defence exhibited two documents but did not produce any witness. After conclusion of trial, the trial court convicted and sentenced the accused-appellant in the manner indicated above. Hence, this appeal.
4) We have heard Shri Deepak Sharma, learned Amicus Curiae for the accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for the State.
5) Shri Deepak Sharma, learned Amicus Curiae for the accused-appellant has argued that the accused appellant has been falsely implicated in the present case inasmuch as, he has been held guilty of committing murder of deceased-Ajay without an iota of evidence. The chain of circumstances against him is not so complete as to rule out even reasonable hypothesis compatible with his innocence. The circumstances proved against the accused-appellant are not sufficient to bring home his guilt that it was none-else but the appellant, who committed the murder. Learned Amicus Curiae argued that the trial court has recorded the finding of his guilt merely on the basis of surmises and conjectures and not on the basis of any concrete evidence. He has submitted that Omveer Singh (PW1), father of the deceased has stated that Sanwaliya (PW18) of Village Dhondhe Ke Pura told Shiv Charan (PW2) that accused-appellant Pappi had confessed to his crime and admitted that he murdered Ajay and put his dead-body in Patwarghar. Omveer Singh (PW1) has further stated that he along with Shiv Charan (PW2) and 4-5 other persons went to Sanwaliya (PW18), who reiterated the same version and stated that Pappi confessed that he called Ajay on the pretext of giving him drinking water from the hand pump and then strangulated him. Learned Amicus Curiae submitted that Omveer Singh (PW1), Shiv Charan (PW2) and Smt.Meera (PW4) have also attributed this knowledge of extra judicial confession by Pappi to Sanwaliya (PW18). But Sanwaliya (PW18) has turned hostile and has not supported the prosecution case, who was the most important witness to prove this circumstance against the accused. Omveer Singh (PW1) has stated that first of all the dead body of Ajay was seen by Mangal Singh and Rameshwar and that Rameshwar has stated that he saw Pappi coming out from the Patwarghar on the day of incident. Surprisingly, the prosecution did not produce this important witness and therefore an adverse inference should be drawn against the prosecution for not producing him that had he been produced, he would not have supported the prosecution.
6) Learned Amicus Curiae argued that Devi Singh (PW22) has made improvements on his previous version to the police and exaggerated the allegations. He has stated that his niece Minki came out of the house and Ajay followed her. When deceased Ajay came out of the house, this witness saw accused giving him money for fetching a bundle of bidi and match stick and Ajay was refusing to go. Minki went to attend the wedding programme and Ajay did not return back. They searched for Ajay but he could not be traced and ultimately his dead-body was found in Patwarghar. Minki had seen the accused giving money to Ajay. But no witness by the name of Minki has been produced. Only Kumari Vinesh (PW3) has been produced and Minki has not been produced. Kumari Vinesh (PW3) has stated that when she came out along with Ajay out of the house, Pappi met him in front of the house. Accused Pappi gave a note of Rs.10/- to him to fetch namkeen. When Ajay refused to go, Pappi then gave him allurement of buying sweet mart of Rs.2/- for himself and get the namkeen of Rs.8/-. Thereafter, Ajay could not be traced. Learned Amicus Curiae argued that this witness has made lot of improvements on her initial statement given to the police u/S.161 Cr.P.C. (Exb.D/2). Besides, this witness Kumari Vinesh (PW3) has made similar statement as that of Devi Singh (PW22), where he stated that Pappi gave money to deceased Ajay to fetch the bundle of bidi and match stick, whereas Kumari Vinesh (PW3) has stated that he saw the accused Pappi giving Rs.10/- to deceased Ajay for getting namkeen. This is again a very significant missing link in the prosecution case.
7) Learned Amicus Curiae has argued that even if Omveer Singh (PW1), father of the deceased has stated that Sanwaliya (PW18) of Village Dhond Ka Pura has informed Shiv Charan (PW2) that accused-appellant Pappi had confessed his crime to him when he was taken to the police station, this cannot be treated as evidence against him because Sanwaliya (PW18), aged 75 years, a link between these two witnesses i.e. Omveer Singh (PW1) and Shiv Charan (PW2), when confronted with his previous version given to the police u/S.161 Cr.P.C. (Exb.P/9), has refused having given such statement. He in his police statement also stated that accused confessed committing murder of Ajay in the presence of his son Ashok. Ashok S/o Sanwaliya has not been produced as a witness. Adverse inference should therefore be drawn against the prosecution for not producing such an important witness.
8) Learned Amicus Curiae argued that Kalla (PW13) and his father Sitaram (PW14), who were stated to be the witnesses to prove the presence of the accused on the date of alleged incident, have disowned their statements said to have been given to the police u/S.161 Cr.P.C. vide Exb.P/7 and Exb.P/8, respectively and were declared hostile. Devi Singh (PW22) has gone to the extent of stating that he on the very first day had doubt that accused-appellant Pappi must have murdered Ajay and he told the police so on the same day but why this has not been stated in the written report Exb.P/10, could not be explained by him. However, there is no such allegation that this witness (informant) expressed any doubt on the accused. Learned Amicus Curiae argued that the incident had taken place in the night intervening 10/05/2003 & 11/05/2003 and the written report (Exb.P/10) was submitted on 11/05/2003, whereas statements of most of the prosecution witnesses were recorded by the police for the first time introducing the story of so-called confession by the accused-appellant belatedly on 29/06/2003. No explanation has been given for such an enormous delay. The accused-appellant has thus been made victim of the circumstances. It is wrong to suggest that accused-appellant went absconding and was not present on the day of incident. Devi Singh (PW22) has himself admitted that accused-appellant Pappi was present in the village on that day. This witness even stated that he came to know that accused-appellant Pappi has murdered Ajay on that very day. If that was so, why this was not mentioned in the written report (Exb.P/10) is not explained. This witness denied the suggestion that Pappi remained in confinement of police for three months.
9) Learned Amicus Curiae further argued that Omveer Singh (PW1) has stated that motive of the accused to murder of Ajay is that whenever accused used to harass his own mother, they supported her. On one occasion, the accused wanted to commit rape with his own mother. The accused also used to harass and maltreat his wife. The mother of the accused stayed with the complainant party for six months and his wife for two months. Devi Singh (PW22) has also stated that accused used to maltreat his parents, who stayed in the house of the complainant party for a month. Accused also used to beat children of the village. Owing to all these reasons, the accused was annoyed with the complainant party and murdered Ajay. Learned Amicus Curiae argued that Rakesh (PW5) and Bhagwan Singh (PW6), who both were the witnesses of arrest memo (Exb.P/2), have turned hostile and rather stated that their signatures were obtained in the police station. Learned Amicus Curiae in support of this argument relied on the judgments of Supreme Court in Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh : AIR 1952 SC 343, Bhagat Ram Vs. State of Punjab : AIR 1954 SC 621, Eradu & Ors. Vs. State of Hyderabad : AIR 1956 SC 316, Shankarlal Gyarasilal Dixit Vs. State of Maharashtra : AIR 1981 SC 765, Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh : (2010) 2 SCC 748, Raj Kumar Singh Vs. State of Rajasthan : (2013) 5 SCC 722 and Mohd.Faizan Ahmad @Kalu Vs. State of Bihar : (2013) 2 SCC 131. He has therefore prayed that the appeal be allowed.
10) Shri Javed Choudhary, learned Public Prosecutor opposed the appeal and submitted that guilt of the accused has been proved beyond reasonable doubt inasmuch as, the accused was last seen with the deceased, a fact proved by Kumari Vinesh (PW3) and informant-Devi Singh (PW22). Accused then went missing from the village and was arrested. He confessed his crime to Sanwaliya (PW18) in the presence of his son Ashok. Even though, Ashok was not produced and Sanwaliya (PW18) turned hostile, yet Omveer Singh (PW1) and Devi Singh (PW22) have proved the fact of extra judicial confession by the accused to Sanwaliya (PW18), as told by Shiv Charan (PW2). Fact that Sanwaliya has turned hostile does not make any difference because Shiv Charan (PW2) and Smt.Meera (PW4)-mother of the deceased have proved the knowledge of extra judicial confession by Pappi to Sanwaliya (PW18). The finding recorded by the trial court in convicting and sentencing the accused for the murder of Ajay is just and perfect and does not call for any interference. It is therefore prayed that the appeal be dismissed.
11) We have given our anxious consideration to the rival submissions and perused the material available on record.
12) The written report (Exb.P/10) was submitted by Devi Singh (PW22) on 11/05/2003, wherein it was alleged that his nephew Ajay had gone to attend the marriage in the neighbourhood but did not return back. He was searched elsewhere but could not be traced. At 11.00 p.m., his dead body was found in Patwarghar. He was bleeding from the mouth. Informant-Devi Singh when appeared in the court as PW22, has stated that when his niece Minki came out of the house, Ajay also followed her. This witness has stated that he had seen accused Pappi and Ajay standing near the hand pump. Accused Pappi was giving some money to him to fetch the bundle of bidi and match stick but Ajay was refusing and after some time, Ajay was not seen anywhere. And when they searched for him, even accused was not found in his house. This witness has gone to the extent of stating that he had the doubt against Pappi of committing murder of his nephew Ajay and that in fact he knew from the very beginning that it was Pappi, who murdered Ajay and the motive for such murder was disclosed by this witness to Devi Singh (PW22), which we have noted above with reference to the statements of Omveer Singh (PW1) and Devi Singh (PW22). Surprisingly, in the written report (Exb.P/10) submitted by this witness Devi Singh (PW22) to the police on 11/05/2013, there was no such allegation. Obviously, Devi Singh (PW22) has narrated this story belatedly and that too for the first time before the police in u/S.161 Cr.P.C. his statement recorded much later on 29/06/2003. He reiterated the same story in the court statement. Another witness of last seen is Kumari Vinesh (PW3). Devi Singh (PW22) named Minki also in his statement as the one on whose call, Ajay came out of his house but neither this witness Minki was produced nor she was examined as a witness. Be that as it may, even if we treat Vinesh (PW3) as Minki, she has stated that she saw accused Pappi giving a sum of Rs.10/- to Ajay asking him to get namkeen and when Ajay refused to go, Pappi gave him allurement of buying sweet mart of Rs.2/- and get the namkeen for Rs.8/- only. Strangely, when Kumari Vinesh (PW3) gave her previous statement to the police u/S.161 Cr.P.C. (Exb.D/1) on 29/06/2003, she did not give any such statement of the accused giving Rs.10/- to the deceased asking him to fetch namkeen or giving him allurement of buying sweet mart for Rs.2/- etc. All that she stated was that there was a dance programme in the house of vicinity in connection with the marriage and that accused had gone to the house of Mangal Singh to see that programme.
13) Devi Singh (PW22) even stated that accused was detained in police station for as many as three months. Record reveals that the date of incident is 10/05/2003 and the accused was shown arrested on 19/08/2003 vide Exb.P/2. If the accused absconded from the village after the incident, how could he remain in police custody for three months, as the intervening period exactly come about three months. This raises a serious doubt about fairness of investigation by the police.
14) Omveer Singh (PW1) and Devi Singh (PW22) have sought to prove guilt of the accused on the basis of alleged extra judicial confession made by the accused to Sanwaliya (PW18) in the presence of his son Ashok. Then Omveer Singh (PW1) has stated that he was informed about this by Shiv Charan (PW2). Apart from Omveer Singh (PW1) and Shiv Charan (PW2), Smt.Meera (PW4) also states so. Smt.Meera (PW4) stated that Shiv Charan (PW2) told that accused had confessed to Sanwaliya that he strangulated her son Ajay. Shiv Charan (PW2) has given a very unusual statement by stating that he had gone to the village Dhondhe Ke Pura to meet his relative Lakhan Singh. When they were discussing about the murder of Ajay, Sanwaliya (PW18), who was over hearing their conversation, came to them and told that accused Pappi had come to him and confessed that he had murdered Ajay. This is quite unusual that Sanwaliya, a person of another village of 75 years, upon over hearing talking other persons, offered to give them the name of the accused on the basis of extra judicial confession. Sanwaliya when appeared in the court as PW18, refused having given such statement and disowned his statement to the police u/S.161 Cr.P.C. (Exb.P/9). Non-production of Ashok son of Sanwaliya (PW18) in whose presence, accused Pappi is stated to have confessed his crime, is indeed a circumstance in favour of the defence. Adverse inference has to be drawn against the prosecution for not producing him that had Ashok been produced, he would have definitely supported the defence. Omveer Singh (PW1) while stating that Mangal Singh and Rameshwar first saw dead-body of Ajay in Patwarghar, has also stated additionally that Rameshwar had at that time seen the accused coming out of the Patwarghar but Rameshwar has not been produced by the prosecution as witness. Adverse inference has to be therefore drawn also against the prosecution for not producing him as a witness that had he been produced, he would not have supported the prosecution case.
15) Mangal Singh (PW16) and Yashpal (PW17) were also sought to be produced as witnesses of last seen. They stated in their court statement that they saw accused Pappi near the hand pump. After half & an hour, Omveer Singh (PW1) came to enquire about Ajay. Their statement therefore cannot be taken as the evidence of last seen. Kalla (PW13) and his father Sitaram (PW14), who also disowned their statements recorded by the police u/S.161 Cr.P.C. vide Exb.P/7 & Exb.P/8, respectively in which they stated that accused came to their house in the night of the fateful day and looked very perturbed and tensed. They have disowned their aforesaid statements alleged to have been given to the police u//S.161 Cr.P.C.
16) The Supreme Court in State (Delhi Administration vs. Gulzarilal Tandon : AIR 1979 SC 1382 has held that in cases where the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important role in order to tilt the scale against the accused. Their Lordships held that accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with his innocence.
17) In Bakshish Singh Vs. The State of Punjab : AIR 1971 SC 2016 supra it was held that in a case resting on circumstantial evidence, chain of evidence must be such as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused and none else.
18) In Shankarlal Gyarsilal Dixit supra it was held that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. The Court has to consider whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the shadow of doubt. Even in cases which depend on direct evidence, is shadow of reasonable doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt.
19) In Hanumant Govind Nargundkar supra, the Supreme Court while dealing with a case of circumstantial evidence in para 10 of the report, has held as under:
xxxxxxxxxxxx it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be a conclusive nature and tendency any they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused xxxxxxxxxxxxxxxxxxxxxxxxxxx
20) The Supreme Court in Musheer Khan @ Badshah Khan supra while detailing out the judicially evolved rules for appreciation of circumstantial evidence observed that the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. Their Lordships then further observed that the second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The third rule that was referred to by their Lordships was that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail. The fourth principle enumerated was that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. The fifth principle that was enumerated by their Lordships was that when a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role.
21) The Supreme Court in Raj Kumar Singh supra, held as under:-
Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be proved and `will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be and `must be is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be true and `must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be true and `must be true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
22) The Supreme Court in Mohd.Faizan Ahmad @Kalu supra has observed that the criminal court recognize only legally admissible evidence and not far-fetched conjectures and surmises. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence. It was held as under:-
The material witnesses have expressed suspicion but there is not a single credible piece of evidence linking the appellant to the crime in question. We have no manner of doubt that the offence is grave; the children were abducted and kept in a tunnel for over five months and anonymous calls were made for ransom. Accused whose involvement in such crimes is proved must be dealt with with a firm hand, but the seriousness or gravity of the crime must not influence the court to punish a person against whom there is no credible evidence. The trial court, therefore, erred in convicting the appellant.
23) We record our deep sense of appreciation for the assistance provided to us by the learned Amicus Curiae in effectively presenting the case of defence.
24) In view of above discussion, we are not persuaded to uphold the conviction of the accused-appellant, which is founded entirely on circumstantial evidence. The chain of circumstances against the accused-appellant has got several missing links. Neither different circumstances are individually established against the accused-appellant beyond reasonable doubt nor do they form a chain of circumstance so complete as to rule out every reasonable hypothesis that may be compatible with his innocence. The circumstances do not conclusively prove that it was only the accused-appellant and none-else, who could have committed the murder of deceased.
25) We are therefore persuaded to set-aside the conviction of the accused-appellant Pappu Singh @Pappi for offence u/S.302 IPC and acquit him of the charge for the said offence.
26) In the result, the appeal is allowed. The judgment dated 29/03/2004 passed by learned Additional District and Sessions Judge (Fast Track) No.1, Dholpur in Sessions Case No.94/2003 is set-aside. Accused-appellant Pappu Singh @Pappi S/o Girand Singh is acquited of the charge for offence u/S.302 IPC. The accused-appellant, who is in jail for last about ten years and one month, if not required to be detained in connection with any other offence, may be released forthwith.
27) Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellant Pappu Singh @Pappi is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this 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 this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.
(NISHA GUPTA), J. (MOHAMMAD RAFIQ), J. Anil
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Anil Goyal Sr.PA cum J