By the Court: (Nisha Gupta, J.)
1. This D.B. Cr. Appeal under Section 374 Cr.P.C., has been filed against the judgment dated 10.12.2008 passed by Additional Sessions Judge No.1, (Fast Track) Kota in Sessions Case No. 63/2007 whereby the present appellant has been convicted and sentenced as under:-
under Section 302 IPC: to undergo life imprisonment and to pay a fine of Rs. 100/-. In default of payment of fine to further undergo three months simple imprisonment.
2. The short facts of the case are that PW/2 Kishan Gopal lodged a written report (Ex.P/2) at Police Station Sangod, Distt. Kota with the contention that he is resident of Kuradia Kala. From last two years Chotu Lal is working with him as Hali (agricultural labourer). On 2.3.2007 in the night mustard crop was being cut and stored on his agricultural field. Chotu Lal went to sleep in the agricultural field to guard the crop but when he had not returned in the morning, he sent Ghasilal, another labourer to the field and he informed that Chotulal was lying dead on the bed. Then he and other villagers went to the field and saw Chotu Lal lying dead there having two injuries on his head. No suspicion was shown against anybody. On this written report, FIR No. 37/2007 (Ex.P/2) was registered and after investigation recovery of Kutiya was made at the instance of the appellant. He also identified the place of occurrence and motive was also brought by the prosecution that he was having an evil eye on the wife of the deceased and charge sheet was filed against the appellant. The case was committed and tried by Additional Sessions Judge No.1, (Fast Track) Kota.
3. The charges were framed against the appellant for the offences under Sections 302 IPC which were denied by the appellant and he claimed to be tried.
4. To prove its case, prosecution examined PW/1 Chandra Praksh, PW/2 Kishan Gopal, PW/3 Chetan Kumar, PW/4 Hemraj, PW/5 Heera Lal, PW/6 Ghasi Lal, PW/7 Dev Kishan, PW/8 Dev Dutt Tewari, PW/9 Subran Singh, PW/10 Bunty @ Bhanwar Lal, PW/11 Dr. Shankar Lal Puraswani, PW/12 Dr. Ram Kalyan Meena, PW/13 Devendra Singh, PW/14 Ratan Lal, PW/15 Kumari Rinku, PW/16 Kanhaiyalal, PW/17 Ramswaroop, PW/18 Nirmala, PW/19 Govind, PW/20 Shiv Kumar and PW/21 Abdul Rashid and produced documents Ex. P/1 to P/22. 5. Appellant was examined under Section 313 Cr.P.C. and in defence appellant had not examined any witness but produced documents Ex. D/1 and D/2.
6. After conclusion of trial, the present appellant has been convicted and sentenced as referred above, hence this appeal.
7. The contention of the counsel for the appellant is that he has been implicated falsely. The case rests on circumstantial evidence and the chain of circumstances is not complete to connect the appellant with the crime or to reach at an irresistible conclusion that it was the appellant only who committed the crime. Only on the recovery of Kutiya which is an agricultural instrument used by the villagers commonly, he cannot be held guilty for the charge of murder. The evidence of PW/15 Kumari Rinku daughter of deceased and PW/18 Nirmala is not reliable one and even if maximum leeway is granted, the case of the prosecution is that appellant was having only motive to liquidate the deceased but motive alone cannot take the place of proof and conviction of the appellant is bad in the eyes of law, therefore, he be acquitted.
Per contra, the contention of the learned Public Prosecutor is that deceased was found dead in his agricultural field. PW/14 Ratan Lal stated that the appellant was there in the night. Family members of the deceased stated that the appellant was having an evil eye on the wife of the deceased and weapon of offence was also recovered at his instance which completes the chain of circumstances and no interference is needed.
8. Heard the learned counsel for the parties and perused the paper book, the impugned judgment as well as paper book and original record of the case.
9. PW/2 Kishan Gopal lodged the written report and before the trial court, he deposed that on 2nd March in the night Chotu Lal was murdered. He went to the agricultural field to sleep there as the mustard crop was lying there. In the morning Chotu Lal did not turn up to milk the cattle, he had sent Ghasilal to the fields and Ghasilal informed that Chotu Lal has died upon which he lodged the written report (Ex.P/2). PW/1 Chandra Prakash has also stated that he saw the dead body of Chotu Lal in the field. PW/7 Dev Kishan and PW/13 Devendra Singh also stated that they saw the dead body of deceased Chotu Lal in the agricultural field of Kishan Gopal.
10. PW/11 Dr. Shankar Lal Puraswani conducted the post mortem of deceased Chotu Lal and found the following injuries on his person:
1. Incised wound 3cm x 1.5 cm x brain deep blood is filtrated frontal, parietal bone cut. Frontal and temporal mid brain cut blood clots.
2. Incised wound 7 cm x .5 cm frontal, parietal bone cut, frontal parietal lobe mid brain cut blood clots.
As per post mortem report (Ex.P/16) the Medical Board was of the opinion that the cause of death was brain injury. As per Ex.P/16, the deceased suffered two incised wounds on his head.
11. The prosecution has come with a case that the appellant was having a bad eye on the wife of deceased and this was the motive for the murder of the deceased. PW/18 Nirmala is the wife of the deceased and she stated that Hanuman insisted his husband to graze his buffaloes and when he denied for the same, he threatened him of dire consequences. Further the witness deposed that when she was grazing the cattle, Hanuman came there. He tried to outrage her modesty and when it came to the knowledge of her husband, he objected to it but the appellant abused him. Further she deposed that on one day when his husband went to sleep at the agricultural field of his Master, Hanuman assaulted him. At that time, Ghasi Lal persuaded him. Further the witness deposed that on another occasion in the night when her husband was not at the house Hanuman came to her house and caught hold of her and threatened her. She further stated that thereafter she used to sleep with her husband at agricultural field as she was scared of Hanuman but on the day of incident she was out to her father's place. The testimony of this witness cannot be relied upon as she has resiled from her earlier version (Ex.D/2). In her earlier statement, no narration was made by her that appellant ever threatened her husband or tried to assault her or he tried to outrage her modesty. Furthermore, admittedly deceased died on the intervening night of 2nd and 3rd March, but the statement of the witness was taken on 10.3.2007 and earlier she had not stated these facts to anyone.
12. PW/15 Kumari Rinku daughter of the deceased stated that on the occasion of cutting of crop, his father used to sleep on the agricultural field and Hanuman used to visit their house in the absence of his father and he used to threaten her mother with knife. His father restrained him to talk to her mother and has further deposed that Hanuman killed his father but in cross-examination, she stated that whenever his father used to sleep on the agricultural field her mother also slept there only. This witness further stated that Hanuman informed him that Chotu Lal died. Further she deposed that 8 days prior to the incident there was a quarrel between Hanuman and his father but the witness has improved her version in court from her earlier statement (Ex.D/1) made to police, however witness admitted the fact that on restrain caused by her father, Hanuman stopped visiting their house.
13. PW/6 Ghasi Lal is the person who was a co-labourer with Chotu Lal. He has not stated anything about any altercation between Hanuman or the deceased as referred by PW/18 Nirmala. The prosecution has clearly designed a false version that the appellant was having any motive to commit murder of the deceased.
14. It may be noted that statement of PW/15 Kumari Rinku was also recorded on 10.3.2007, hence the delay also cause suspicion on the veracity of the version unfolded by the witnesses and testimony of these witnesses cannot be relied upon as it has not been corroborated by any other evidence and both the witnesses have not made statement to anyone on earlier occasions. Furthermore, the highest case of the prosecution as per these two witnesses is that the appellant was having motive to commit the murder of the deceased but the motive howsoever strong cannot take the place of the proof and evidence of PW/15 Kumari Rinku and PW/18 Nirmala cannot be construed as any incriminating circumstance against the appellant and cannot be relied upon to record the conviction of the appellant.
15. The further circumstance which has been brought on record against the appellant is that PW/20 Shiv Kumar Investigating Officer stated that appellant disclosed to him that he can identify the place of occurrence where the murder was committed and information so disclosed was reduced into writing as Ex.P/21 and further the appellant identified the place of occurrence vide Ex.P/5.
16. PW/2 Kishan Gopal is the motbir witness of Ex.P/5 and other witness of Ex.P/5 is PW/9 Subran Singh, who has turned hostile and has not supported the prosecution story. Be that as it may, the admitted case of the prosecution is that prior to the filing of the written report, it was in the knowledge of the Investigating Officer that dead body of Chotu Lal was lying in the agricultural field of Kishan Gopal, hence discovery of same fact on the information and disclosure of appellant is insignificant and not a legally admissible evidence and cannot be relied upon to record conviction of the appellant.
17. The prosecution also examined PW/14 Ratan Lal to show that on the previous night of the murder, Choutu Lal and Hanuman were present in the field but this circumstance cannot be said to be incriminating against the appellant as appellant was the resident of the same village. He was also working at the field of Jaswant Singh. Hence presence in the field in night was expected and it cannot be said to be an incriminating circumstance.
18. Further circumstance which has been brought against the appellant is that PW/20 Shiv Kumar, Investigating Officer has deposed that appellant gave the information about recovery of Kutiya. Ex.P/20 is the disclosure suffered by the appellant and on the information furnished and at the instance of the appellant Kutiya was recovered from the residential house of the appellant.
19. PW/2 Kishan Gopal and PW/19 Govind are the attesting witnesses but nothing has been brought on record which can suggest that Kutiya was used for commission of the offence. It was shown as blood stained but no F.S.L report has been submitted to give a connecting evidence and Kishan Gopal (PW/2) in his cross-examination admitted that Kutiya is an agricultural tool and used for agricultural purposes and are kept by the agriculturists. Hence recovery of Kutiya cannot connect the appellant with the crime.
20. The counsel for the appellant has submitted that the circumstances which has been submitted against the appellant are not sufficient to record his conviction as chain of circumstances is not complete and reliance has been placed on Vasanta Sampat Dupare Vs. State of Maharashtra (2015) 1 SCC 253 wherein it has been held as under:
Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the Appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M.P.: AIR 1952 SC 343, wherein it has been held as follows:
... 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 of a conclusive nature and tendency and 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.
In Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116, the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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.
In C. Chenga Reddy v. State of A.P. : (1996) 10 SCC 193 it has been held that in a case based on circumstantial evidence, 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. That apart, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
Further reliance has been placed on Muthu Vs. State of Karnataka, (2002) 9 SCC 158 where recovery of weapon was found doubtful and benefit was granted to the appellant. Further reliance has been placed on Hanumant Vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it was held as under:
It is well to remember that in cases where the evidence in 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 of a conclusive nature and pendency and 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.
21. In the light of the above, the present case also rests on circumstantial evidence and the circumstances proved against the appellant that he had a motive for the murder and one Kutiya was recovered at his instance are not sufficient to reach to the conclusion that it is only the appellant who committed the murder.
22. Hence, in the totality of the circumstances, we are not persuaded to uphold the conviction of the accused-appellant, which is founded entirely on circumstantial evidence. The prosecution has utterly failed to prove complete chain of circumstances. The chain of circumstances against the accused-appellant has got several missing links. Neither individual circumstances are established against the accused-appellant beyond any 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, who could have committed the murder of deceased and none-else. The individual act independently or collectively, which has been broght on record against the appellant, is not sufficient to connect him with the alleged crime and hence, it would not be safe to record his conviction. Therefore, we grant the benefit of doubt to the appellant.
Consequently, the appeal is allowed. The judgment under appeal dated 10.12.2008 passed by Additional Sessions Judge No.1, (Fast Track), Kota in Sessions Case No. 63/2007 is set aside. The appellant is acquitted of the charges levelled against him. Appellant Hanuman, if he is in jail, be released forthwith, if not required in any other case. In case he is on bail, he need not surrender and his bail bonds stands discharged.
Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellant Hanuman is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial 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.