State of Rajasthan with
Criminal Appeal No.561 Of 2008
JUDGMENT
ANIL R. DAVE, J.
1.
1)
Being aggrieved by the Judgment delivered in Criminal Appeal No.935 of 2005 and
in Criminal Appeal No.798 of 2006 by the Rajasthan High Court, Criminal AppealNo.705/2008
and Criminal Appeal No.561 of 2008 have been filed respectively. The appellants
in both the appeals have been convicted under the provisions of Section 302 of the
Indian Penal Code to suffer imprisonment for life and a fine of Rs.1,000/-, in
default 3 months' simple imprisonment. As the appellants in both the
afore-stated appeals were involved in the same offence, both the appeals were heard
together and they are disposed of by this common judgment.
2.
2)
Facts giving rise to the appeals referred to above in a nutshell are as
under:-
(a) Bhawani Singh
(deceased) was an Income Tax Officer who was posted at Ajmer and was a member
of a search party, function of which was to conduct raids on certain persons'
premises to find out whether the concerned persons had evaded payment of
income-tax.(b) In the evening of 22nd August, 2000, the deceased had left his
residence for going to Ajmer Club with an intimation to his son Ajit
Singh(P.W.11), that he would return by 10 p.m. As Bhawani Singh did not return
till
midnight, Ajit Singh
(PW-11) had enquired from Vasudev(P.W.5), as to why the deceased had not
returned. Vasudev(P.W.5), had thereupon informed Ajit Singh (P.W.11), thathe
had given lift to the deceased from Ajmer Club and had dropped him near Ricoh
circle, which was near his residence. In the circumstances, Ajit Singh (P.W.11)
had gone to make inquiry near the residence of Vasudev (P.W. 5), but in the
meantime it was informed that body of the deceased was lying near Ricoh circle
which was not quite far from the residence of the deceased. Incised wound on
left side of chin and stab wounds were found on his body and it was found that
the deceased died as somebody had attacked him. In the circumstances, First
Information Report(Ext.P.15) was lodged around 2 a.m. and thereafter necessary
investigation was made by the Investigation Officer (P.W. 26 ). In the course
of investigation, Varun Chaudhary- Accused No.1, Sudhir @ Bunty -Accused no.2and
Him mat Singh @ Bobby -accused no.3 were arrested.
1.
2.
3.
It
was the case of the prosecution that the afore-stated accused had committed the
offence of murder by inflicting serious injuries upon the deceased. It was a case
of circumstantial evidence as nobody had seen the commission of the offence.
It was, however, recorded in the evidence that immediately after arrest of
accused no.1 on 1stSeptember, 2000, and arrest of accused no.2, a knife had
been recovered from accused no.1 whereas blood-stained clothes of Himmat Singh,
accused no.3 had been recovered.
4.
The
trial court had considered the facts and on the basis of evidence recorded,
accused no.1 was found to be guilty of having committed an offence under
Section 302 of the IPC and was sentenced to undergo life imprisonment and pay a
fine of Rs. 1,000/-, in default three months simple imprisonment whereas
accused Nos. 2 and 3 were acquitted.
5.
The
Trial Court had considered the fact that a knife had been recovered from
accused no.1 and in view of the fact that incised wounds were found on the body
of the deceased, it came to the conclusion that accused No.1 was guilty of the
offence under the provisions of Section 302 of the IPC. The trial court considered
the evidence of Pawan Kumar, Home Guard (P.W.3), who was on duty near the Ricoh
Circle. He had seen three persons riding on a motorcycle around midnight.
However, he could not identify the persons who were on the motor cycle.
6.
Pooran
Singh (P.W.6) , a police constable, had also seen around same time three
persons going on a motorcycle and as there were three persons on a motor cycle,
he had given an indication to stop them by blowing his whistle but the
motorcyclist did not stop and he could not record the full number of the motor
cycle but he noticed that one of the digits was `9' in the number of the motor
cycle.
7.
Post
Mortem of the body of the deceased revealed that the following injuries had
been inflicted on the deceased:
i) Incised wound of
3 x 0.5 cm muscle deep on left side of chin. ii) Stab wound 2.5 x 0.5 cm on
the lower part of the chest on the left side.
1.
2.
3.
4.
5.
6.
7.
8.
The
said injuries were caused with a sharp edged weapon and in the opinion of the
doctor, the said injuries were sufficient to cause death of the deceased. (Post
Mortem Report - Ext. 21).
9.
The
trial court was of the view that the chain of circumstances had been completed
and on the said basis, the order of conviction was passed.
10.
Being
aggrieved by the order of conviction, an appeal had been filed by accused No.1,
whereas against the order of acquittal, so far as accused Nos. 2 and 3 are concerned,
state had filed an appeal in the High Court. The appeals had been heard
together and ultimately, after considering the submissions made on behalf of
the learned advocates and upon perusal of the evidence, the High Court
confirmed the order of conviction of accused No.1. So far as accused Nos. 2 and
3 are concerned, the High Court came to the conclusion that they were also
guilty of the offence for which they were charged and, therefore, the appeal
filed by the State had been allowed and the findings of acquittal rendered by
the Trial Court in favour of accused Nos. 2 and 3 had been set aside and the
said accused were also convicted under the provisions of Section 302 read with
Section 34 of the Indian Penal Code to suffer imprisonment for life and a fine
of Rs. 1,000/-, in default to suffer simple imprisonment for three months. Being
aggrieved by the aforesaid order passed by the High Court, the aforesaid two
appeals have been filed by accused Nos.1 and 2.
11.
Criminal
Appeal No.705 of 2008, which pertains to the conviction of A-1 - Varun
Chaudhary, was argued by Mr. U.U. Lalit, learned senior counsel and Criminal
AppealNo.561 of 2008 was argued by learned counsel Mr.Sanjay R. Hegde. The
learned counsel vehemently submitted that the order of conviction is bad in law
for the reason that there was no eye-witness and there was no complete chain of
events, which would lead to the only conclusion that the accused were guilty of
the offence referred to hereinabove and there was no possibility of their being
innocent. In a case of circumstantial evidence, it must be established beyond
doubt that except the accused, nobody else could have committed the offence and
the chain of events must be complete in such a manner that one can come to the
conclusion that the accused was the only person who could have committed the
offence and none else. To substantiate their case, they submitted that there
was no eye witness and only evidence which a police constable (P.W.6) had given
was that he had seen three persons going on a motor cycle. Though he could not
see the full number of the motorcycle, he could notice no.'9' as one of the
digits in the number of the motor cycle. The said witness specifically stated
that he could not recognize any of the accused. There was no identification
parade so as to identify as to whether the three accused had been noticed by
the Home Guard (P.W.3) and the Police Constable (P.W.6), who had seen three
persons on the motor cycle.
12.
Thereafter,
they submitted that recovery of knife and blood stained clothes could not have
been relied upon by the trial court or by the High Court. The said recovery had
not been duly proved for the reason that witness Madanlal (PW.25), who had made
an effort to prove the recovery had admitted in his cross examination that he had
remained outside the premises from which the knife and theblood stained clothes
(Ext. P-7) had been recovered. It was specifically stated by the P.W.25 that when
A-1 – Varun Chaudhary had taken the police party and the witnesses to show the
place where the knife had been hidden, he was asked to remain outside the
premises and the police and accused no.1 had gone in the premises and returned
with a knife and blood stained clothes. Another witness, Bhanwar Singh, PW.9,
who was supposed to prove recovery of the motor cycle had admitted that
recovery Panchnama was signed by him in the police station. In view of the said
fact, the trial court should not have relied upon the said witnesses. They
further submitted that the knife which was alleged to have been recovered was
never shown to the accused or was never produced in the court. According to
them, as law laid down by this Court in Abdulwahab Abdulmajid Baloch vs. State
of Gujarat, 2009 (11) SCC625, the weapon recovered ought to have been produced
before the court and should have been shown to the accused but admittedly, neither
the weapon was produced before the Court nor it was shown to the accused at any
point of time.
13.
(13)
So far as the evidence, which pertains to the tidemarks of the motor cycle,
which was alleged to have been used in the offence is concerned, they submitted
that there was no evidence that the marks of the tyre had been compared with
the marks which were found at the place of the offence. In fact there was
nothing to show that tyremarks at the place of the offence and tyre marks found
by FSL Report were same.
14.
(14)
They further submitted that even at the time when the accused were questioned
by the court under the provisions of Section 313 of the Code of Criminal Procedure,
the weapon and the blood stained clothes had not been shown to the accused. They
relied upon the judgment delivered by this Court in Mohd. Abdul Hafeez v. State
of Andhra Pradesh, AIR 1983 SC 367, to substantiate their case that the
articles recovered must be shown to the accused during the trial or at the time
when his statement under Section 313 of Cr.P.C. is recorded.
15.
(15)
They further submitted that no motive was attributed against the accused. They
fairly admitted that though motive is not important in each and every case,
according to the learned counsel, even if one relies upon the statement made by
the son of the deceased, the deceased might have some enmity with persons
dealing in scrap as the deceased had raided premises of some scrap dealers and
due to the said fact, some threats had also been received by the deceased from
persons dealing in scrap. The accused were neither dealer in scrap nor there
was any evidence that at the behest of the scrap dealers, the accused had murdered
the deceased. According to the learned counsel, in absence of any motive, in a
case which is based only on circumstantial evidence, it would not be just and
proper to convict the accused, especially when there was no material to come
to a conclusion that the accused had committed the offence. So as to substantiate
the above submission, they relied on the Judgments delivered by this Court in Surrender
Pal Jain v. Delhi Administration 1993 Crl.L.J. 1871 = 1993 SCC (Crl.)1096 and Tarseem
Kumar vs. Delhi Administration1994 Sup.(3) SCC 367, respectively.
16.
(16)
For the foretasted reasons, they submitted that the order convicting the
accused could not have been passed and, therefore, the appeals should be
allowed and the accused should be acquitted.
17.
(17)
On the other hand, the learned public prosecutor made an effort to support the
judgments delivered by the High Court whereby the accused have been convicted. He
submitted that the evidence recorded by the trial court was properly
appreciated by the High Court and looking to the reasons given by the High
Court, interference with the Order of the High Court was not called for.
18.
(18)
We have heard the learned counsel and have considered the submissions referred
to hereinabove and relevant record.
19.
(19)
Upon going through the judgments relied upon by the counsel appearing for the
appellants and looking to the evidence adduced before the trial court, we are in
agreement with the submissions made by the learned counsel appearing for the
appellants.
20.
(20)
Home Guard, Pawan Kumar (PW-3), had seen three persons on a motor cycle. However,
he stated that he could not identify the persons on the motor cycle. Similarly,
police constable Pooran Singh (PW- 6) had stated that around 12 midnight on
22nd August, 2000, he had seen two persons going on motor cycle and one of them
was the deceased. After sometime he had seen another motor cycle which was
Suzuki, but he could not read complete number of the motor cycle, but he could
read one of the digits, namely No. `9'. He whistled so as to stop the said
motorcyclist but the motor cyclist did not stop. Thereafter, he had seen
another motor cycle, being Hero Honda which had hit a dog near Santoshi Mata
Temple. It is pertinent to note that the afore-stated two witnesses did not say
that they had seen any of the accused. Possibly even they did not see faces of
the three persons, who were on the motor cycle. Possibly, in these set of
circumstances, having identification parade would be futile and, therefore,
there was no test identification parade. Thus, nobody had seen any of the
accused. So far as identification of the motor cycle is concerned, PW-6 merely
stated that he saw one digit of registration number of the motor cycle, which
was `9'. Inour opinion, on the basis of one digit of the registered number, it
would be dangerous to believe that the motorcycle recovered, which also had
digit `9' in its number, was used in the offence. In our opinion, on such a scanty
evidence it cannot be said that the accused had been identified or the motor
cycle which had been recovered was the one which was used by the accused at the
time of the offence.
21.
(21)
In our opinion, so called recovery of knife and blood stained clothes would
not help the prosecution. Recovery of the motor cycle cannot be said to be proved
because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery
panchnama in the police station whereas another witness, Madan Lal, P.W.25
could note stablish recovery of the knife as he was not present at the time and
place from which the knife had been recovered. Moreover, the knife was never
produced before the court and was never shown to the accused and, therefore, in
our opinion, the said evidence could not have been relied upon by the courts
below for passing the order of conviction.
22.
(22)
It is pertinent to note that there is no evidence or even there is no reference
to the fact that any one from Forensic Science Laboratory or from the police
personnel had lifted marks of the motor cycle tyre from the place of the
offence so that the same can be compared with the tyre marks of the motor cycle
alleged to have been used in the offence. Unless tyre marks are lifted from the
place of the offence and upon comparison with the tyre marks of the motor cycle
recovered are found to be the same, it cannot be said that the motor cycle recovered
was used in the offence. So as to establish the presence of the motor cycle at
the place of the offence, the prosecution must show that the tyre marks which
were found at the place of the offence were that of the motor cycle used by the
accused. It is also pertinent to note that marks of the motor cycle tyre which
were received by the FSL were not in a sealed condition. Aforestated facts
clearly denote that the marks of the motorcycle tyre could not have been relied
upon either by the Trial Court or by the High Court for establishing that the
motorcycle having particular tyre marks was used in the alleged offence.
23.
(23)
It is also pertinent to note that the prosecution could not establish the
purpose for which the deceased was murdered by the accused. Of course, it is
not necessary that in every case motive of the accused should be proved. However,
in the instant case, where there is no eye witness or where there is no
scientific evidence to connect the accused with the offence, in our opinion,
the prosecution ought to have established that there was some motive behind commission
of the offence of murder of the deceased. It was the case of the prosecution
that the deceased, an Income Tax Officer had raided the premises belonging to
some scrap dealers and, therefore, he had received some threats from such
scrap dealers. It is an admitted fact that the accused are not scrap dealers or
there is nothing to show that the accused had been engaged by scrap dealers to
commit the offence. Thus, there was no motive behind the commission of the
offence so far as the accused are concerned.
24.
(24)
It is a settled legal position that in case of circumstantial evidence, there
must be a complete chain of evidence which would lead to a conclusion that the
accused was the only person, who could have committed the offence and none
else. In the instant case, there is nothing to show that the accused had
committed the offence and on the basis of the foretasted material, in our
opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath
vs. State of Karnataka, (2010)8 SCC 593,para 24, it has been stated that
"in deciding the sufficiency of the circumstantial evidence for the
purpose of conviction, the court has to consider the total cumulative effect of
all the proved facts, each one of which reinforces the conclusion of guilt and
if the combined effect of all these facts taken together is conclusive in
establishing the guilt of the accused, the conviction would be justified even
though it may be that one or more of these facts by itself or themselves is/are
not decisive. The facts established should be consistent only with the
hypothesis of the guilt of the accused and should exclude every hypothesis
except the ones ought to be proved............. There must be a chain of
evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused, where various links in chain
are in themselves complete, then the false plea or false defence may be called
into aid only to lend assurance to the court".
25.
(25)
In another case of C. Chenga Reddy v. State of A.P., reported in (1996) 10 SCC
193, this Court has held that "In a case based on circumstantial evidence,
thesettled law is that the circumstances from which the conclusion of guilt is
drawn should be fully proved and such circumstances must be conclusive in
nature. Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence."
26.
(26)
Due to the above stated facts, in our opinion, the conclusion reached by the
courts below is not correct. On the basis of such scanty evidence, which is
practically no evidence at all in the eyes of law, the courts below could not
have passed the order of conviction. For the reasons stated hereinabove, we are
of the view that the orders convicting the accused-appellants in both the
appeals are not justified and, therefore, the appeals are allowed. The impugned
orders are quashed and set aside. The accused-appellants shall be released
immediately, if not required in any other offence.
...........................................J.
(Dr. MUKUNDAKAM SHARMA)
........................................J.
(ANIL R. DAVE)
New
Delhi
October
29, 2010
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