Rajasthan High Court - Jodhpur
Bhoop Ram vs State on 21 October, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 487/1989
Bhoop Ram S/o Devi Lal By Caste Jat, R/o Vilage Munde, P.S.
Hanumangarh Town, District Sri Ganganagar
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Jagdish Vishnoi
For Respondent(s) : Mr. R.R. Chhaparwal
Mr. Pritam Solanki
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
JUDGMENT RESERVED ON ::: 22.09.2022
JUDGMENT PRONOUNCED ON ::: 21.10.2022
BY THE COURT : (Per Hon'ble Farjand Ali, J.)
The appellant Bhoop Ram has been convicted and sentenced as below vide the impugned judgment dated 11.12.1989 passed by learned Additional Sessions Judge, Hanumangarh in Sessions Case No.63/1986.
Offence for which Sentence awarded convicted Section 302 IPC Life imprisonment alongwith a fine of Rs.200/- and in default of payment of fine, further to undergo rigorous imprisonment of two months.
Section 201 IPC Two years' rigorous imprisonment alongwith a fine of Rs.200/- and in default of payment of fine, further to undergo rigorous imprisonment of two months. Both the sentences were to run concurrently. (Downloaded on 21/10/2022 at 08:59:59 PM) (2 of 15) [CRLA-487/1989] Being aggrieved of his conviction and the sentences
awarded to him, the appellant has preferred the instant appeal under Section 374(2) of Cr.P.C.
Brief facts relevant and essential for disposal of the instant appeal are that on 16.08.1986, Bheem Singh (P.W.10), SHO, Police Station Hanumangarh Town was on patrolling duty along with other constables of the police station. At about 7:30 p.m., when they reached at Village Munde, he noticed that some people had gathered near the wine shop. Upon inquiry, they disclosed that Villa which was situated near the wine shop was reeking and some blood was also splattered over there. After this, Nathu Ram called Carpenter Heera Lal, who broke the lock of the Villa and a dead body was found lying on the floor which was discoloured and full of foul smell. Constable Rajendra identified the dead body to be of one Gopi Ram Jat, R/o Village Munde, who was working as salesman at the wine shop. Sharp edged injuries were noticed on the face of the deceased which gave rise to the assumption that Gopi Ram had been murdered by an unknown person on the intervening night of 14-15 August, 1986 and after commission of murder, his dead body was placed in the Villa.
On the basis of the above, an FIR No.155/1986 (Ex.P/4) came to be registered at the Police Station Hanumangarh Town, District Sri Ganganagar and investigation commenced. Accused- appellant Bhoop Ram was arrested on 31.08.1986 and after conclusion of investigation, a charge-sheet was filed against him in the Court of the Magistrate concerned for the offences under Sections 302 and 201 of the IPC. As the offences under Sections (Downloaded on 21/10/2022 at 08:59:59 PM) (3 of 15) [CRLA-487/1989] 302 & 201 IPC were exclusively triable by the court of Sessions, the case was committed to the Court of Sessions Judge, Sri Ganganagar from where it was transferred to the Court of Additional Sessions Judge No.2, Hanumangarh for trial. The trial court framed charges against the accused for the above mentioned offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses and exhibited 27 documents to prove its case. The accused was questioned under Section 313 CrPC and was confronted with the circumstances appearing against him in the prosecution evidence. He denied the same and claimed to be innocent. Only one witness was examined in defence and some documents were tendered into evidence. After hearing the arguments advanced by the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the accused-appellant as above. Hence, this appeal.
Mr. Jagdish Vishnoi, learned counsel representing the appellant, vehemently and fervently submitted that the entire case of the prosecution is false and fabricated. The FIR was lodged after an undue delay of two days and there is no tangible explanation for causing delay in lodging of the FIR. He submitted that the eye-witness account of the incident is not available on record and the circumstances put forth against the appellant are neither definite in tendency nor conclusive in nature. There was no motive for the appellant to commit the murder of Gopi Ram. He further submitted that recoveries of 'Gandasi' (Ex.P/9) and blood (Downloaded on 21/10/2022 at 08:59:59 PM) (4 of 15) [CRLA-487/1989] smeared clothes (Ex.P/10) were nothing but a farce and the testimonies of Lachhi Ram (P.W.-6) and Sahi Ram (P.W.-7) regarding the extra judicial confession made by the appellant before them are not credible pieces of evidence. He further asserted that the proseuction evidence particularly the confessional statement of the appellant and the depositions of witnesses particularly, the testimony of P.W.-9 Om Prakash are not worth relying upon since the same cannot convince conscience of any mind of common prudence that the murder was committed by the accused-appellant. He further urged that all the three witnesses namely Lachhi Ram P.W. 6, Sahi Ram P.W. 7 and Om Prakash P.W. 9 were relatives of Gopi Ram (deceased) and thus, they are partisan witnesses; therefore, there is no justification to base conviction of the accused on the tainted evidence of the aforesaid witnesses.
On these grounds, Mr.Vishnoi urged that the finding of conviction recorded by the learned trial Court emerged from inappropriate appreciation of evidence and is based on assumptions which do not find roots in the evidence; hence, the same cannot be sustained. He implored the court to accept the appeal and acquit the accused-appellant of the charges.
Per contra, learned Public Prosecutor vehemently and ardently opposed the submissions made by learned counsel for the appellant. He submitted that there is ample evidence on record to substantiate the charges against the appellant and there is no cogent and plausible reason to disbelieve the evidence of Lachhi Ram (P.W.-6), Sahi Ram (P.W.-7) and Om Prakash (P.W.-9) before (Downloaded on 21/10/2022 at 08:59:59 PM) (5 of 15) [CRLA-487/1989] whom the accused-appellant made voluntary confession regarding commission of the alleged crime. He, thus, submitted that no interference whatsoever is called for in the impugned judgment whereby the appellant has been convicted and sentenced as above.
We have given thoughtful consideration to the submissions advanced by the learned counsel for the parties, have gone through the impugned judgment and have minutely re- appreciated the evidence available on record.
Indisputably, there is no eye-witness of the incident of murder and the entire case of the prosecution is based upon circumstantial evidence. In a catena of decisions, the Hon'ble Supreme Court has laid down the law that in a case solely based upon circumstantial evidence, every circumstance, individually or in isolation, must be proved beyond every shadow of reasonable doubt and if circumstances are taken cumulatively, the only possible inference should be the guilt of the accused to the exclusion of everything else. The circumstantial evidence should be like a spider's web leaving no exit for the accused to slip away. In the celebrated judgment passed in Criminal Appeal No.195/1960 titled as K.M. Nanavati Vs. State of Maharashtra reported in AIR 1962 SC 605 Justice K.Subbarao while observing the misdirections instituted by the Sessions Judge in that case, restated his words which were as follows:-
"It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider (Downloaded on 21/10/2022 at 08:59:59 PM) (6 of 15) [CRLA-487/1989] the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case."
Before proceeding further, we would deem it appropriate to discuss the theory of circumstantial evidence for which cardinal principles have been propounded by Hon'ble the Supreme Court through deliverance of plethora of judicial pronouncements. Circumstantial evidence means the evidence which is not drawn from direct observation of a fact in issue but it is inferred from the relevant facts. In other words, it can be said that when there is no direct evidence in respect of principal fact but certain circumstances are there which though not a fact in issue, but are relevant to the fact in issue i.e., the principal fact and from the establishment of all such circumstantial evidence, a safe inference of principal fact can be inferred or presumed; that is why it is termed as an 'Inferential Evidence'. Circumstantial evidence is indirect information or secondary facts that allow a reasonable inference of the principal fact, without actually proving the principal fact. Although there cannot be a strait jacket formula for appreciation of circumstantial evidence but the Court has laid down certain tests which must be followed while convicting a person on the basis of circumstantial evidence through a slew of judgments. The tests are as follows:-
1.Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2.Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;(Downloaded on 21/10/2022 at 08:59:59 PM)
(7 of 15) [CRLA-487/1989]
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; &
4. The circumstantial evidence, in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
The above principles were initially propounded in the case of Hanumant Govind Nargundkar Vs. State of M.P. reported in AIR 1952 SC 343 which has been consistently followed in later judgments till date. Keeping in mind the principles of appreciation of circumstantial evidence, we now proceed to scrutinize the circumstances put forth by the prosecution and the evidence brought on record against the accused-appellant.
In the first facet, it was alleged that the accused was having a motive to commit murder of Gopi Ram for which a witness Gangajal was examined as P.W. 11 who stated that there was a rift between the accused and the deceased regarding monetary dispute. An endeavor was made to prove that the accused was involved in illegal sale of liquor and on a previous occasion, he was arrested on a complaint made by Gopi Ram, therefore, the accused was holding a grudge against the deceased. It may be noted that documents pertaining to the said case were not proved by the prosecution. No substantial evidence was brought on record that appellant and deceased had any dispute between them except a bald and vague allegation made by this witness. While (Downloaded on 21/10/2022 at 08:59:59 PM) (8 of 15) [CRLA-487/1989] passing the impugned judgment, the learned trial Court observed that even if the accused-appellant was arrested in connection with sale of illicit liquor earlier, that cannot be taken as an immediate cause which may precipitate the accused to take such an extreme step of committing the murder of Gopi Ram. Suffice it to say, the prosecution utterly failed to establish the factum of appellant having motive to commit murder of Gopi Ram.
The next circumstance upon which heavy reliance has been placed by the learned trial Court is the evidence of extra judicial confession allegedly made by the accused-appellant before Lachhi Ram P.W. 6 and Sahi Ram P.W.7. Confessions can be divided into two classes i.e., Judicial and Extra judicial confessions.
Judicial confessions are those which are made before a Magistrate or Court of law during the course of a judicial proceeding. Extra-judicial confessions are made by a party elsewhere than before a Magistrate or Court of law. The position of law on extra judicial confessions is clear that no confession can be used against an accused unless the Court is satisfied that it was made voluntarily and that it is true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt upon the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. It is also observed in various judgments of Hon'ble the Supreme Court that the evidence of extra judicial confession is a weak type of evidence. It depends on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses before whom the confession was (Downloaded on 21/10/2022 at 08:59:59 PM) (9 of 15) [CRLA-487/1989] made. This is a rule of common prudence which is observed that the accused will make a confession before a person whom he trusts and from whom he has ray of hope of deriving some help and the accused will not confess his crime before a witness who is neither his friend nor relative and nor a public authority. He will also not make a disclosure or a confessional statement before a person who is inimical to him. The credibility of the witness who claims that a confession was made before him/her/them is to be scrutinized very cautiously. It has to be seen that the confession uttered from the mouth of witness is unbiased and not even remotely inimical to the accused and the witness is one against whom no dispute is raised which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused.
Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. But, at the same time, no portion of evidence has invited so much careful scrutiny as the law of confessions. When it comes to extra-judicial confession, two questions arise: is it voluntary, and, if so, is it true? When the Court is satisfied that the extra-judicial confession is both voluntary and true, it can be accepted as sound evidence.
Lacchi Ram and Sahi Ram were examined as P.W. 6 and P.W. 7 respectively by the prosecution to establish the fact that the accused allegedly made confessional statement before these witnesses. It is an admitted position that both these witnesses were neither relative nor friend of the accused and that they were not a public authority. On the contrary, both these witnesses are (Downloaded on 21/10/2022 at 08:59:59 PM) (10 of 15) [CRLA-487/1989] near relatives of the deceased. The manner in which they narrated the story does not inspire confidence in the fact that the appellant made the extra judicial confession before them. Both stated that on the fateful day of incident when they were sitting in the house of Sahi Ram at Village Bhabhuwali, the accused came there seemingly puzzled at that time and blurted out before these witnesses that he had lent money to Gopi Ram and when Gopi Ram refused to return the amount, he killed him (Gopi Ram) using a gandasi.
From bare perusal of the statements of these witnesses, it is reflecting that the accused had made the alleged disclosure before these witnesses after allegedly killing Gopi Ram while it is revealing from the record that the dead body of Gopi Ram was recovered from the Villa on 16.08.1986 only when the foul smell effusing from the Villa attracted the attention of people. When the Villa was opened, a dead body was found lying on the floor. Deceased Gopi Ram was missing from 14.08.1986 and strangely, Lacchi Ram P.W. 6 and Sahi Ram P.W. 7 admitted that the factum of the alleged confession was never disclosed by them to anyone despite the fact that they were close relatives of the deceased Gopi Ram and had knowledge of his murder. The FIR was lodged at the behest of Bheem Singh, SHO, Police Station Hanumangarh and no report regarding missing of Gopi Ram was lodged by anyone.
It is further revealed from the record that Lachhi Ram P.W. 6 and Sahi Ram P.W. 7 disclosed the fact of confession for the first time on 23.08.1986. It is astonishing that they kept silent for a (Downloaded on 21/10/2022 at 08:59:59 PM) (11 of 15) [CRLA-487/1989] long time despite the fact that their near relative Gopi Ram whose dead body was recovered on 16.08.1986 and was missing since 14.08.1986. The matter was under investigation still they did not disclose this vital piece of information to anyone; not even to the police. This unnatural conduct of Lachhi Ram P.W.6 and Sahi Ram P.W. 7 creates doubt over their credibility and thus, placing reliance on their statements would not be justifiable.
Om Prakash was examined as P.W.9 and stated in his evidence that on the fateful day of incident, at around 12:00- 12:30 a.m., he and the accused were going to watch Ramleela at Village Haripura. While returning back from Haripura, when they reached near the liquor shop at Munde, he left the company of the accused and went to his home alone by cycle. He stated that the accused was having a gandasi in his hand at that time. This witness has been stated to be a close relative of Gopi Ram as he (Gopi Ram) was his maternal uncle. It is quite unnatural that the accused took gandasi with him when he went to watch Ramleela in Village Haripura along with this witness and while returning back, the accused halted near the wine shop holding a gandasi with him. Surprisingly, the witness did not tell this fact to anyone and his statement under Section 161 of the Cr.P.C. was recorded much after lodging of the FIR. He seems to be a tailor made witness.
Now, another aspect that needs to be noticed is the recovery of gandasi (EX.P/) allegedly effected at the instance of accused-appellant. The recovery memo Ex.P/9 reveals that it was prepared on 02.09.1986 and the gandasi was said to be recovered from the dwelling house of the accused-appellant. The Motbir (Downloaded on 21/10/2022 at 08:59:59 PM) (12 of 15) [CRLA-487/1989] witnesses Dayalaram and Khayaliram whose presence memo Ex.P/ 9 was prepared were not the residents of Village Munde. They were called from a distinct Village Bhadwa, Police Station Hanumangarh Town. Dayalaram P.W.-11 happens to be a sibling of deceased Gopi Ram and witness Khayaliram P.W. 8 was a relative of the deceased. There is no satisfactory explanation given as to why independent witnesses were not called from the same locality from where the alleged recovery of gandasi was effected. P.W. 8 Khayali Ram replied in his cross-examination that when he reached with the police team at the residence of the accused- appellant, the house was bolted and the key of the same was with the accused. The accused-appellant was arrested on 31.08.1986 vide Arrest Memo Ex.P/23. The delayed time gap between the arrest and the alleged recovery of gandasi further creates strong suspicion on the case of prosecution.
On perusal of the Arrest Memo (Ex.P/23), it was revealed that nothing except the clothes that he was wearing at that time was recovered from the possession of the accused-appellant when he was apprehended and arrest memo was prepared. Thus, the statement of the witness Khayali Ram (P.W.8) that when he, along with the police team, reached the place of recovery, the house was bolted and the key was with the accused seems to be highly dubious.
FSL report (Ex.P/27) revealed that no blood could be detected from Article marked '13' (Gandasi); thus, the recovery of gandasi does not help the case of prosecution in establishing the facutm of murder against accused-appellant. Similar is the (Downloaded on 21/10/2022 at 08:59:59 PM) (13 of 15) [CRLA-487/1989] situation of recovery of blood smeared clothes of the accused- appellant which were exhibited vide Memo Ex.P/10. Interestingly, the independent witnesses Khayali Ram P.W.8 and Sahi Ram P.W.9 were the same witnesses who attested Memo Ex.P/9 i.e. recovery of gandasi. The gandasi and the clothes were recovered from the same place, as mentioned above. A serious doubt has been cast upon the presence of these motbir witnesses as they were relatives of the deceased Gopi Ram and thus, they were partisan witnesses. They seem to be omnipresent witnesses which means that wherever any incriminating memo was prepared, these two persons were made the 'Motbirs' to the memo. It is beyond understanding as per common prudence that the accused would keep the blood smeared clothes preserved for 17 long days which may be taken as incriminating evidence against him. As noticed above, the incident occurred during the intervening night 14- 15.08.1986 and the alleged recovery of blood smeared clothes was effected on 02.09.1986. No independent evidence has been brought on record to establish the fact that the clothes belonged to the accused and none-else. The prosecution has also relied upon the recovery of a key and a ledger book, two passbooks Ex.P/11, Rs.650/- found in a box from the house of the accused vide Memo Ex.P/12 and three keys & two locks vide Memo Ex.P/13. It is not understandable how the recoveries of passbook, Rs.650, 3 keys and 2 locks directly connect the accused with the alleged crime. No other evidence has been produced bringing in motive of the accused to commit murder of the deceased. After careful scanning of the record, this Court is of the considered view that the prosecution has failed to produce sufficient evidence to (Downloaded on 21/10/2022 at 08:59:59 PM) (14 of 15) [CRLA-487/1989] establish the fact of motive of the accused to commit murder of the deceased.
The purported evidence of the prosecution with regard to extra judicial confession; testimony of Om Prakash P.W.9 as to the fact of leaving the company of the accused near the crime scene at the relevant time; recovery of gandasi; recoveries of blood smeared clothes of the accused; three keys; passbook and locks are not sufficient enough to bring home the guilt of the accused and thus, basing conviction on the evidence mentioned above would be highly unsafe.
It is settled preposition of law that there is a long inevitable distance to travel between `may be true' and `must be true' which must be covered through solid and unimpeachable evidence. Before condemning an accused as a convict, the evidence produced by the prosecution needs to be proved beyond reasonable doubt and the courts should tread cautiously on the path covering the distance between conjectures and sure conclusions without getting lost in the mists of unfounded allegations and vague evidence. Graver the offence, greater should be the standard of proof. To fasten liability of an accused for the offence of murder where life imprisonment and death are the punishments, great caution is required to be adopted. It seems that the learned trial Court has based its conviction on conjectures and surmises. Suspicion, however grave it may be, cannot take the place of proof.
In view of the categoric findings referred to supra, we are of the view that the prosecution has failed to prove even a single (Downloaded on 21/10/2022 at 08:59:59 PM) (15 of 15) [CRLA-487/1989] incriminating circumstance against the appellant so as to sustain his conviction as recorded by the trial court. The impugned judgment dated 11.12.1989 does not stand unerred under scrutiny.
Accordingly, the instant appeal deserves to be allowed. The impugned judgment dated 11.12.1989 passed by the learned Additional Sessions Judge No.2, Hanumangarh in Sessions Case No.63/1986 is set aside. The appellant is acquitted from the charges under Sections 302 & 201 of the IPC. Accused-appellant is on bail. His bail bonds are discharged.
However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
Record be sent back forthwith.
(FARJAND ALI),J (SANDEEP MEHTA),J
4-Mamta/-
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