1. By way of this appeal, the appellant Pratap Singh S/o Govind Singh, has assailed the impugned judgment and order of conviction & sentence dated 20.12.2003 passed by learned Additional Sessions Judge (Fast Track), Kishangarh-Bas (Alwar) in Sessions Case no.233/2001 (82/97) whereby he was convicted and sentenced as under: Under Section 302 IPC:
Life imprisonment with a fine of Rs.50,000/- in default whereof to further undergo 7 months' Simple imprisonment.
Under Section 201 IPC:
4 years' Rigorous imprisonment With a fine of Rs.5000/- and for default thereof to further undergo 3 months' Simple imprisonment.
Under Section 394 IPC:
10 years' Rigorous imprisonment with a fine of Rs.5000/- in default whereof to further undergo 3 months' Simple imprisonment.
2. Facts as unfolded by the prosecution are that on 10.6.1995 at about 7.00 am, a male dead body was found lying in ditch in jhund of poolies near village Kasopur, situated on one side of village Budhi-Bawal-Bhonkar near Kotkasim (District Alwar). On receiving this information from the villagers PW-I Gajraj Singh, Sarpanch of village went to the spot along with Nityanand, Rudmal, Suraj Bhan and Jag Ram and saw a person lying dead who appeared to be about 40 years' of age and was wearing Khakhi Pent, Shirt & Baniyan. They also saw the dead body having blue-black marks on the neck showing strangulation on his throat and also blue-black marks on the mouth as well as eye and there was blood oozing from his both legs. He lodged Ex.P/1 written report at P.S KotKasim stating that it appeared that on the intervening night of 9.6.95 & 10.6.95, somebody had murdered this unidentified man. On this written report, FIR No.69/95 Ex.P/2 was registered for the offences under Sections 302 & 201 IPC and the investigation started. The deceased being unidentified was cremated by the Police on the same day after getting the Post Mortem conducted. However, the Police had to file final report in the Court as Adampata (untraceable)
3. Thereafter, on receipt of secret information on 21.10.96 registered as rapat no.1086 by PW-18 SHO-Suratgarh from one Baldev Singh, Constable, he informed S.P. (Rural) Alwar about the incidents of commission of car theft and killing of drivers in Gurgaon and Alwar area. S.P. (Rural), Alwar ordered reopening of case and further investigation of case no. 69/95 of P.S. Kotkasim and sent Yadram, ASI to Pilibanga who made further investigation from the three accused i.e. Sarjeet, Indrajeet and Pratap and arrested them and made recoveries of vehicle and the copy of driving license and Identity card of deceased from Pratap Singh.
4. PW-16 ASI Yaadram interrogated accused Sarjeet, Inderjeet and Pratap Singh and after arresting them on 26.10.96, 31.10.96 and 23.10.96 respectively, made further investigation. Sequel thereto, on 4.11.96, he made formal seizure ExP-10 of unnumbered maruti van with engine number 182010 parked in Police Station Pilibanga (District-Hanumangarh) which had already been seized by Channan Ram ASI at Pilibanga under Station Under Section 102 Cr.P.C lying unattended on the road on 27.10.96. Copy of driving license and Identification card of the deceased were recovered from the accused Pratap Singh on the basis of information given Under Section 27 of Evidence Act. Necessary memos and site plan were prepared.
5. During investigation, seized clothes of deceased, blood stained soil, and shoes etc. were sent for FSL and after completion of investigation challan was filed before the Court of ACJM, Kishangarh-Bas against accused Pratap Singh, Indrajeet and Sarjeet under Section 302, 201, 394 and 411 IPC which was committed to the Court of Sessions Judge on 25.7.97. Investigation was kept pending against Kulwant Singh under Section 173(8) Cr.P.C.
6. On receipt of the matter by the Additional Sessions Judge (Fast Track), Kishangarh-Bas (Alwar) by way of transfer, he after hearing the charge arguments, framed charges against accused Sarjeet and Pratap Singh as accused Indrajeet had died even before framing of the charge. The charges under Sections 302, 201 and 394 IPC were read over to accused Sarjeet and Pratap Singh which they denied and claimed trial.
7. In support of its case, the prosecution examined as many as 18 witnesses and exhibited 28 documents. Statements of accused were recorded under Section 313 Cr.P.C, wherein they admitted their arrest but denied commission of any offence. However, they did not lead any defence evidence.
8. Learned Sessions Judge, vide impugned Judgment & Order dated 20.12.2003, acquitted the accused Sarjeet of all the charges whereas present appellant Pratap Singh, was convicted and sentenced in the manner stated hereinabove.
9. Learned counsel for the appellant assailed the impugned Judgment & order on various grounds stating that there is not an iota of evidence against the present appellant and that the impugned Judgment is contrary to the provisions of law. The prosecution is duty bound to prove its case beyond reasonable doubt. He vehemently argued that a case of circumstantial evidence, it is bounden duty of the prosecution to establish the chain of events to link the accused with the crime which has not been done in this case. Only the recovery of photo copy of driving license of deceased and his identity card that too, after 16 months stated to have been recovered at the instance of Pratap Singh, cannot prove that it was the accused appellant who did commit the murder of the deceased and moreover the place from where so-called photo copy of license and identity card have been recovered, was also not in exclusive possession of the accused. Hence on the sole ground alone judgment of conviction & sentence cannot sustain.
10. According to learned counsel for the appellant, prosecution has failed to produce any last seen evidence from the Taxi Stand or 'Dhaba' from where the deceased and accused-appellant are stated to have had 'lassi' and that it creates a strong doubt on the prosecution story. His argument was that a bare perusal of facts & circumstances will show that whole case of the prosecution is concocted and fabricated and it has tried to create evidence to implicate the accused-appellant. Further that the learned Trial Court has not considered the material available on record in a proper spirit.
11. On the other hand, learned Public Prosecutor supported the impugned judgment and order.
12. We have considered the rival contentions of both the parties and perused the entire record.
13. Admittedly, the present is a case of purely circumstantial evidence and as per settled law of the land, prosecution has to establish such a chain of circumstances which consistently point to the guilt of the accused and are inconsistent with his innocence. Meaning thereby the circumstances, from which an inference of guilt is sought to be drawn, are required to be cogently and firmly established and these circumstances have to be taken into consideration cumulatively and they must be able to connect that, within all human probability, it is only the accused who had committed the alleged crime.
14. Before we examine the testimony of prosecution witnesses, we may notice certain special features in this case. In the case in hand, dead body of deceased is said to have been found on the morning of 10.6.95 lying as an unidentified man in the bushes next to road side towards village in Alwar district. The accused and his counter part are alleged to have been arrested in last week of October 1996. As per prosecution, only evidence against the present appellant was recovery of photo copy of driving license of deceased and also of his identity card which are alleged to have been recovered from his house on the basis of his information under Section 27 of the Evidence Act.
15. It is important to note that arrest and recovery were made after 16 months from the date of incident. The dead body was cremated on 10.6.95 itself by the police being an unidentified one. Admittedly, the dead body could not be identified and the prosecution did not produce any last seen evidence.
16. In the light of these circumstances, we reappreciated the prosecution evidence. We find that PW-1 Gajraj, PW-2 Rudmal, PW-3 Surajmal, and PW-4 Jagram are Sarpanch and villagers who went to the spot on getting the information of the dead body lying in the village.
17. PW-1 Gajraj Sarpanch of the area is an FIR lodger and also witness of Ex.P/2 FIR and Panch-nama lash Ex.P/3, seizure memo of clothes of deceased Ex.P/4, site plan Ex.P/5 and Jabti-lash Ex.P/6.
18.Simmilary, PW-2 Rudmal, PW-3 Surajmal and PW-4 Jagram are also formal witnesses of Ex.P/1 to P/3.
19. PW-5 Vijay Pal is a Constable who was posted in Police line Alwar on 26.10.96 and in whose presence accused Sarjeet, Indrajeet and Pratap Singh were arrested vide arrest memos Ex.P/7 to P/9 and photo copy of driving license and identity card of deceased were recovered at the instance of Pratap Singh vide Ex.P/11.
20. This witness, in his cross-examination, resiled from his examination in chief stating that license was taken out by the accused Pratap Singh from un-numbered car lying in Police Station Peelibanga and not from his house.
21. PW-6 Jaswant Singh, was a Constable in P.S. Pilibanga on 27.10.96 who claims to have seized unnumbered brownish Maruti Van vide Ex.P/13.
22. PW-7 Raghuveer Singh who was Constable in P.S. Pilibanga on 27.10.96, has proved ExP-13 being the recovery memo of a vallet containing Rs.162/- a letter and two empty bottles of bear.
23. PW-8 Anil Kumar claims to be the owner of Maruti Van bearing DDL-4922 and claims that driver Tek Bhadur was his driver on a monthly salary of Rs.2500/- and that on that day, he had given this Van to his uncle who was working at airport. The driver Tek Bahabur had taken the vehicle for filling the petrol but did not come back. They tried to search the driver and Car but could not find. After few months, police came and showed him the picture of his driver, which he identified to be of his driver Tek Bahadur.
In his cross-examination, he denied that this Maruti Van was ever run for hire and that he did not ask any person at Taxi Stand about his Car or driver.
24. PW-9 S.R.Pahuja claims that in 1995, his friend had given him Maruti Van bearing No.DDL-4922 with driver Tek Bahadur for commuting to and fro airport. In June 1995 at about 1.00 O'clock, he told the driver to get the wire corrected and to get the petrol filled. The driver Tek Bahadur took the vehicle but never came back and that they had lodged the report about missing of Car and driver and proclamation was also issued in the news paper about his missing with Car. This witness also identified the picture of deceased Tek Bahadur. During his cross-examination, he denied having paid any money to PW-8.According to him the van plied from Taxi Stand for hire. He denied having gone to Taxi Stand for making any inquiry about the deceased but in the next breath, he said that from Taxi Stand, they tried to inquire but could not find any clue.
25. PW-10 Bodan Ram, Constable at Police line, Alwar claims to have carried three sealed packets on 30.1.97 to FSL in compliance of the orders of Superintendent of Police Alwar and deposited intact sealed packets in Case No 69/95 and obtained the receipt Ex.P/14 which was handed over to the SHO Police Station Kotkasim.
26. PW-11 Ramdev posted as Head Mohrir and Malkhana Incharge at Police Station Kotkasim(Alwar) claimed that on 10.6.95. three sealed packets Mark A, B, C containing blood stained soil, plain soil and clothes and shoes of deceased were handed over by SHO to him and entry was proved as ExP15
27. PW-12 Kishanlal was posted as Constable in Police Station Pilibanga on 30.10.96 and in whose presence, photo copy of driving license and Identity card were recovered and site plan of recovery was made. He has proved the memos as Ex.P/11 Ex.P/12. He has also proved Ex.P/10 being formal seizure of brownish unnumbered Maruti van from P.S. Pilibanga on 4.11.96.
28. Dr.D.K.Gupta PW-13 conducted the autopsy of deceased on 10.6.95 at 11.45 am and found two ligature marks on front side of neck first below the mendible and the second below the first one. On cut, ligature mark was found glyserined. In the opinion of doctor, cause of death was Asphyxia due to strangulation. During his cross-examination, he admitted that he did not write the length of ligature marks because they were in between two corners of the mendible.
29. PW-14 Omprakash deposed about accused Sarjeet who is not before us. According to him, Sarjeet was driver with him on a monthly salary of Rs.2000/- till 1990. Thereafter he had left the job and went to Punjab and he never met the witness. This witness was declared hostile and was confronted with his previous statement Ex.P/17. He denied that Sarjeet had ever come to sell red colour Maruti Van to him.
30. PW-15 Madanlal is photographer and on the requisition of SHO, Kotkasim, he took photographs of deceased. He has proved photographs alongwith negatives as Ex.P/18 to 21.
31. PW-16 Yadram posted as ASI at police line Alwar on 21.10.96 deposed that Addl. S.P. (Rural) had ordered to reopen the case No 69/95 and to start further investigation. As per direction, he went to Suratgarh Police Station and after inquiring from SHO, arrested accused Pratap Singh on 23.10.96 vide Ex.P/9 and brought him to Kotkasim and obtained police custody remand. He also arrested the other co-accused Sarjeet vide Ex.P/7 (not before us already acquitted) with the permission of ADJ No.1, from jail Alwar as he was behind the bars in some other case under Sec.302 IPC. He also claims to have arrested Indrajeet (since deceased) on 31.10.96 vide Ex.P/8 arrest memo. Further he received information from accused Pratap Singh under Section 27 of the Indian Evidence Act and after recording Ex.P/24 recovered identity card and photo copy of driving license of deceased vide Ex.P/11 and made site plan of recovery as Ex.P/12. He recovered unnumbered Maruti Van having engine no.182010 vide Ex.P/10 and during investigation, got the identification of photographs of deceased done, from his wife. He also obtained the copy of report of missing of deceased lodged in Sahab P.S. Gurgaon by the owner of the vehicle Anil Kumar.
During his cross-examination, he admits having been told by the wife of deceased about her husband driving Taxi from the taxi stand. He admits to have made no inquiry at Taxi stand. According to him, owner Anil Kumar had told him that Taxi was hired by three sikhs. He also admitted that even after the arrest of accused, he did not get the test identification Parade of accused done from Taxi stand for which he had no explanation. He also did not ask the owner of the Maruti Van as to since how long the deceased had been driving his Van.
32. PW-17 Ram Kumar was declared hostile. He was confronted with his previous statements Ex.P/25 by the public prosecution but he denied having made any such statement.
33. PW-18 Rajesh Beniwal SHO, Police Station Suratgarh claims to have received a secret information on 21/10/96 from constable Baldev Singh, to the effect that Pratap Singh, Kulwant Singh and Sarjeet of Suratgarh were involved in numerous incidents of thefts of cars from Gurgaon and Alwar and killing of their drivers and that Sarjeet was in judicial custody in Alwar jail in a similar case. He also informed secretly that in June 1995, this group had hired a Maruti Car from Gurgaon to go to Alwar but on the way, they killed the driver and took Maruti Car. The witness recorded this secret information Ex.P/26 as Rapat No.1086 and to verify these facts, he went to Suratgarh and Pilibanga. In Suratgarh he found Pratap Singh and took him into police custody and entered Rapat roznamcha Ex.P/27 and made inquiry from him. On the basis of information received by him he telephonically informed the Superintendent of Police(Rural) Alwar about these facts who, in turn, informed him about registration of FIR no. 69/95 in his district and filing of FR Adampata ( ) in that case. He made the interrogation report of Pratap Singh and also made inquiry from Sarjeet who had come to attend a hearing in the Court at Suratgarh. On interrogation of Pratap Singh and Sarjeet found them both involved in said case.
34. On the instructions of S.P.(Rural) Alwar, ASI Yadram of Police Station Kotkasim came to Suratgarh and called Pratap Singh and arrested him vide arrest memo. After that the witness on his transfer handed over the file to his senior.
35. As is clear from above, the prosecution has tried to connect the accused Pratap Singh with the crime on the basis of alleged recovery of identity card and photo copy of driving license of deceased.
36. Now the question which arises is that can the recovery of only these two documents be said to be such a circumstance which is able to conclude that within all human probability, it is the appellant only who has committed murder of the deceased. Recovery of articles from the accused may raise a presumption under Section 114 of the Indian Evidence Act but application of such a presumption, however, is limited. A presumption may be in respect of commission of theft or receipt of stolen property, if a person is found to be in possession of property belonging to the deceased. But on such presumption alone, the appellant cannot be convicted for the commission of murder particularly when on the same evidence other persons are given benefit of doubt (See Hatti Singh v. State of Haryana-2007 AIAR (Criminal) 368. It is worth noting that Sarjeet, at whose instance, the unnumbered Maruti Van already seized under Sec.102 Cr.P.C. lying in P.S. Pilibanga, had been recovered later, has already been acquitted by the learned Trial Court. There is no evidence to the effect that the deceased was last seen in the company of any of the accused at Taxi Stand or somewhere else. Investigating Officer has not made any investigation from Taxi stand. Even the owner of the vehicle does not claim that vehicle was being plied from Taxi stand. He also lodged a report of missing of driver and vehicle that too after five days in Gurgaon police station.
37. The doctor, who conducted the autopsy, found that there were strangulation marks on the neck but no article or cloth rope or anything else was found near the body. The deceased was found wearing shirt, baniyan and Pent & was of 40-45 years of age with a healthy built.
38. The learned Trial Court has based its finding mainly on the principle laid down in Section 106 of the Indian Evidence Act and observed that it was the accused Pratap Singh, himself who should have explained the possession of these two documents i.e. Identity card and photo copy of driving license of deceased recovered at his instance because this fact was in his specific knowledge and since he has not explained it, therefore, adverse inference could be drawn against him.
39. The appellant's counsel assailed the finding given by learned Trial Court where a charge of murder has to be proved solely on the basis of circumstantial evidence, the presumption of innocence of accused plays a dominant role. The fact that accused is found in possession of a weapon or any other article immediately after the incident, may be a strong circumstantial evidence against the accused but to hold, that burden of proof of innocence lies on accused in these circumstances, is totally erroneous. According to him, whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, but in a trial for murder, it is extremely weak in comparison with the dominant presumption of innocence.
40. Relying on recent Judgment of Hon'ble Apex Court in the matter of Musheer Khan @ Badshah Khan v. State of M.P.- AIR 2010 SC 762 it was argued that complete chain of circumstances has to be looked into in the case of circumstantial evidence. Snapped and scattered links which do not make a complete sequence cannot be made the basis of conviction in a case of murder. Hon'ble Apex Court emphasized that 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. {See Raghav Prapanna Tripathi and others v. State of U.P., AIR 1963 SC 74}.
41. The second principle according to Hon'ble Apex Court, 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. {See State of U.P. v. Ravindra Prakash Mittal 1992 Cr.L.J 3693 (SC)}.
42. Further in the matter of Ashraf Ali v. Emperor, 43 Indian Cases 241 at para 14, it was held that while appreciating the circumstantial evidence, the Court must remember principles laid down in the case that when in a criminal case there is a conflict between presumption of innocence and any other presumption, the former must prevail.
43. The learned counsel for the appellant strongly argued that the learned Trial Court did not have an iota of evidence to link the accused appellant with the crime of murder and that by arriving at the finding on the basis of Section 106 of the Act, the Trial Court has committed an illegality by over looking the basic principles of presumption of innocence and all burden of prosecution to prove the case beyond reasonable doubt. His argument was that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and be incapable of explanation upon any other reasonable hypothesis except his guilt.
44. We have carefully gone through the principles of law laid down in Musheer Khan's case (supra) and also the evidence collected by the prosecution as discussed hereinabove. We find that the investigation of the case appears to have not been conducted properly. Here and there, we find that there could be some evidence of Taxi stand Gurgaon drivers or other persons to prove whether the deceased used to park at Taxi stand or whether on the last day, he was seen in Gurgaon at petrol pump from where he had filled the petrol or repaired the door of the Van or the Dhaba where the deceased and others are stated to have had lassi or enquiry with regard to hiring of his taxi by three sikhs which could have strengthened the prosecution case and such last seen evidence could be made the part of chain of circumstantial evidence. Even the letter stated to have been found in unattended car with a vallet containing Rs.162/- had not been produced or recovered for the purpose of hand writing report or for establishing link for any offence. Then no test identification parade was got conducted after the arrest of accused. The only evidence against the present appellant is in the form of recovery of photo copy of driving license of deceased and his identity card. Moreover, it is against the natural conduct of an accused to preserve the photo copy of driving license and identity card of victim which may connect him with crime of murder for sixteen months especially when this fact had come to its notice and such an evidence could have strengthened its case. Hon'ble Apex Court has clearly held that while appreciating the circumstantial evidence, the Court must adopt a cautious approach because circumstantial evidence is only inferential evidence and proof in such a case is derivable only by inference from the circumstances. Discussing the rules judicially evolved for appreciation of circumstantial evidence, it was held in paras 48 to 51, as under:
48. Chief Justice Fletcher Moulton once observed that proof does not mean rigid mathematical formula since that is impossible. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches. The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
49. To my mind, 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. {See Raghav Prapanna Tripathi and others v. State of U.P., AIR 1963 SC 74}.
50. 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. {See State of U.P. v. Ravindra Prakash Mittal 1992 Cr.L.J 3693 (SC)}.
51. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. Emperor, 43 Indian Cases 241 at para 14), that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
45. With regard to Section 106 of Indian Evidence Act also, Hon'ble Apex Court held that in a trial for murder, its presumption is extremely weak in comparison with the dominant presumption of innocence in favour of accused. In Musheer Khan's case (supra) in para 53, it was held as under:
53. 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. In Nibaran Chandra Roy v. Kind Emperor, 11 CWN 1085, it was held the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
46. The principles have been followed by the Constitution Bench of Hon'ble Apex Court in Govinda Reddy v. State of Mysore, AIR 1960 SC 29 where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343. The ratio in Govind (supra) quoted in paragraph 5, page 30 of the reports in Govinda Reddy (supra) are: In cases where the evidence of a circumstantial nature, the circumstances which lead to the conclusion of guilt, should be in the first instance fully established, and all the facts so established should be consistent only with 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 complete as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused and it must be shown that within all human probability the act must have been committed by the accused.
47. In the case in hand, we can safely conclude that in view of principles laid in Musheer Khan's case (supra), in a case of murder, only on the basis of presumption under Section 106 of the Evidence Act, the finding of conviction cannot be arrived at because this presumption is extremely weak incomparison with the dominant presumption of innocence.
48. In these circumstances, we find that the conviction of accused for the charge of murder cannot be sustained on the basis of snapped and scattered links which do not make a complete sequence, therefore, we are of the considered view that the finding of learned Trial Court ariving at the conviction of appellant cannot be said to be based on sound legal principles. Hence deserve to be set aside and is hereby set aside.
49. Accordingly, the appeal of the appellant Pratap Singh is allowed. The impugned judgment and order dated 20.12.2003 passed by learned Additional Sessions Judge (Fast Track), Kishangarh-Bas (Alwar) in Sessions Case no.233/2001 (82/97) is set aside. The appellant is in jail, therefore, he be set at liberty forthwith, if not required in any other case.