Babuda Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal - murder - sections 302 and 307 of indian penal code, 1860 - appellant while committing theft inflicted blows from sword on deceased resulting in his death - he was convicted for offence under sections 302 and 307 and awarded death penalty - on appeal high court confirmed convictions and but altered sentence from death penalty to life imprisonment - hence, present appeal - appellant pleaded not guilty and contended that he was falsely implicated - injuries on deceased sufficient in ordinary course of nature to cause death - case depended on circumstantial evidence - when case depends upon circumstantial evidence each independent evidence and circumstance should form complete chain without giving any reason to doubt - held, circumstances not sufficient to establish guilt of accused - mere recovery of weapons not sufficient to establish guilt of accused when there was no other clinching evidence - conviction cannot be based on mere suspicion - appeal allowed - electricity regulatory commissions act (14 of 1998) sections 17 & 3: [s.b. sinha, asok kumar ganguly & r.m. lodha,jj] constitution of state electricity regulatory commission held, section 3 mandates the central government to establish central electricity regulatory commission. if the said provision is contrasted with section 17 it is evident that no such mandate has been imposed on the state government to constitute such a commission. the parliament advisedly used the words may and if it deems fit in section 17 while using the word shall in section 3 thereof. establishment of a state commission by the state government, therefore, is directory. it confers some discretionary power on the state government to constitute a state commission. the state, for sufficient and cogent reasons, may refuse to constitute such a commission or fail or neglect to do so within a reasonable time. the court in exercise of its power of judicial review, therefore, cannot issue a writ or order in the nature of mandamus directing the state to constitute such a commission. indian electricity (supply) act (54 of 1948) [since repealed] sections 49,59 & 79 & electricity regulatory commissions act (14 of 1998), sections 29 & 52: [s.b.sinha, asok kumar ganguly & r.m.lodha,jj] electricity tariff held, the provisions of 1998 act vis--vis 1948 act are required to be construed harmoniously. the 1948 act has not been repealed or replaced by the 1998 act. the state electricity board is a state within the meaning of article 12 of the constitution of india. it is a statutory authority. if the board has the power to frame or revise the tariff as contained in section 49 and other provisions of the 1948 act which is plenary in nature, unless statutory provision is brought into force interdicting exercise of such power, it cannot be held to become denuded thereof. the powers/guidelines under the provisions of 1998 act were to be exercised by the central commission or the state commission. it must come into existence for the said purpose. a non obstante clause contained in section 29 or section 52 of the 1998 act would be attracted only when the commission comes into force and not prior thereto. it cannot, therefore, be said that the factors enumerated in clauses (c) to (g) contained in sub-section (2) of section 29 of 1998 act providing for the principles required to be followed by the commission were binding on the state electricity boards also. the state electricity boards are entitled to frame tariff in terms of the provisions contained in the 1948 act. the tariff so framed is legislative in character. the board as a statutory authority is bound to exercise its jurisdiction within the four corners of the statute. tariff framed by it cannot be held to be ultra vires only because it did not take into consideration certain principles laid down in clauses (c) to (g) of sub-section (2) of section 29 of the 1998 act. it is well settled principle of law that a statute does not envisage doing anything which is impossible to be done. moreover, the commission has not been empowered to frame tariff with retrospective effect so as to cover a period before its constitution. the state electricity board, therefore, had the requisite jurisdiction to revise a tariff till such time as the commission was constituted under 1998 act. - the high court held that the prosecution has failed to prove that the turban arid the black sheath were of the accused. 4. it is a case of circumstantial evidence and it is well-settled that the prosecution has to establish each circumstance by independent evidence arid the circumstances so established should form a complete chain without giving room to any other hypothesis and should be consistent with his guilt and inconsistent with his innocence. he also admitted that at that time there was no other old pair in the safe. on mere suspicion, however strong, the conviction cannot be based.orderk. jayachandra reddy, j.1. the sole accused in the case is the appellant herein. he was. tried for offences punishable under sections 302, 307, 380 and 460 i.p.c. by the learned sessions judge, jalore. he was sentenced to death under section 302 1.p.c. he was also sentenced under section 307 i.p.c. to undergo 10 years r.i. and to pay a fine of rs. 2,000/- in default of payment of which to undergo 3 years r.i. , under section 380 i.p.c. to 5 years r.i. and to pay a fine of rs. 1,000/- in default of payment of which to undergo 2 years r.i. and under section 460 i.p.c. to l0 yearsr.i. and to pay afineofrs. 2,000/- in deafault of payment of which to undergo 3 years r.i. the sentences other than death were ordered to run concurrently. the learned sessions judge made a reference for confirmation of death sentence and the accused also preferred an appeal against the convictions and sentences and they were disposed of by a common judgment by the high court. the death sentence was reduced to imprisonment for life by the high court and other convictions and sentences were confirmed. hence the present appeal.2. the prosecution case is that on the intervening night of 13th and 14th july, 1980 the deceased manshaji and has wife smt. gangadevi p.w. 2 were sleeping in the chowk of their house.p. w.18 pukhraj, son of the deceased manshaji and his wife smt. phau, p.w. 1 were sleeping upstairs. at about 1 a.m. in the night the deceased raised an alarm 'chor chor'. thereupon, smt. gangadevi, p.w. 2 got up and saw her husband and the thief grappling with each other. the thief who was armed with a sword, inflicted injuries on the head and on other parts of the body of the deceased. then p.w. 2 went near the thief and she was also inflicted blows with sword. the deceased fell down and became unconscious. p.w. 18 and his wife p.w. 1 on hearing the alarm came down. the thief had already run away before they came down. the villagers also gathered later. on verification it was fund that the thief had stolen some silver karas. p.w. 18 went to the police station and gave a report. s.h.o., p.w. 30 sent the same for registration to the police station and the crime was registered and investigation commenced. inquest was held and the dead body was sent for post-mortem. the doctor, p.w. 20 who conducted the post-mortem, opined that the deceased died because of the injuries found on him. s.h.o. seized certain articles at the scene of occurrence. he recovered a bag which contained shoes and pieces of towels. he learnt that a person by name babuda (the appellant before us bears the same name) used go move about tying red chundari turban with a sword having a black sheath and a piece of towel tied to that sheath. the investigating officer enquired about his movements. he learnt that babuda was involved in a case in the court of bhimnal and that he did not attend the court as he was an undertrial accused. he made investigation from jail officials and gathered some information about his clothes. then he go identified all the clothes recovered from the spot and came to know that babuda was a history-sheeter. the s.h.o. alerted all police stations. he seized a sword said to have been deposited at the police station by one setter. he arrested the appellant babuda on 1.9.80 nearly 1-1/2 months after the occurrence and on information given by him that he sold silver karas to one shesh ram sunar (pawn broker), p.w. 15, he went to p.w. 15 and recovered silver karas articles 1, 2, 3 and 4. when the accused was arrested he also recovered a sword with black sheath. articles 1, 2, 3 and 4 were identified as belonging to the deceased. after completion of the investigation chargesheet wa laid. the prosecution examined 32 witnesses who spoke about various circumstances. the accused pleaded not guilty and stated that he was arrested and implicated falsely. both the courts below observed that the case rested on the following circumstances:(1) the accused was found wearing red chundari turban with a sword having black sheath near to the place of occurrence.(2) the accused left his turban and black sheath on the spot.(3) the accused committed theft of the four silver karas of mst. phau, p.w. 1, which he had sold to sheshmal sunar of sheoganj.(4) the clothes of the accused were recovered on the next morning from near the place of occurrence which were identified by the jail officials on 24.7.80 to be that of the accused.(5) the accused was seen with a naked sword which was handed over to sattar, p.w. 10 in a red velvet sheath which was sold by p.w. 21 pyarelal and the patta of which was prepared by ganpat p.w. 22.3. it was held by both the courts below that these circumstances particularly the circumstances namely the recovery of silver karas identified as belonging to the deceased established the guilt of the accused. the high court held that the prosecution has failed to prove that the turban arid the black sheath were of the accused. the high court has also held that the general evidence that the accused used to wear a red chundari turban and used to have a sword with a black sheath is of no help to the prosecution. the high court also pointed out that the investigation officer has recovered two swords and thus a discrepancy has crept in. this second circumstance was eschewed. the high court relied on the other circumstances and held that they form a complete chain and bring home the guilt to the accused. we may point out here that the main circumstance relied upon by the high court was the recovery of the silver karas.4. it is a case of circumstantial evidence and it is well-settled that the prosecution has to establish each circumstance by independent evidence arid the circumstances so established should form a complete chain without giving room to any other hypothesis and should be consistent with his guilt and inconsistent with his innocence. when the second circumstance of those mentioned above is eschewed then the remaining circumstances, in our view, are not sufficient to establish the guilt of the appellant. the fourth circumstance namely that the alleged recovery of the clothes of the accused next morning from near the place of occurrence which were identified by jail officials, also appears to be suspicious and untrustworthy. first of all if he was out of jail and moving about it is highly unnatural for him to wear the same clothes and it is highly doubtful whether the jail officials would remember the type of clothes he was wearing when he was in jail some time ago. then we are left with the recovery of silver karas which was effected after nearly 1-1/2 months from p.w. i5 to whom the accused is alleged to have sold the silver karas. p.w. 15 deposed that he knew the accused and that on 16th july, 1980 he came to his shop in the morning and sold those articles 1, 2, 3 and 4 and he has entered the same in his account book ex. p. 16. on 3.9.80 the police came alongwith the accused on his shop and recovered those articles. first of all these recoveries were made after a long time. p.w. 15 admitted in cross-examination that he has not noted the brand of the silver karas and that he has not melted these pairs in the same form. he has also admitted that he has not noted the weight. he also admitted that at that time there was no other old pair in the safe. when confronted as to how he could give the weight he said that by relying on his memory he gave the weight of the articles. we find his evidence artificial. even otherwise mere recovery of articles after such a long time, cannot be a clinching circumstance to hold that the person who came into possession of these articles could be the murderer. p.w. 15 himself stated that the accused told him that the silver karas belonged to his wife. therefore there is any amount of suspicion about the recovery of these silver karas. even otherwise in our view mere recovery does not establishes me guilt of the accused, when there is no other clinching evidence particularly about his presence in the house of the deceased when the occurrence took place. on mere suspicion, however strong, the conviction cannot be based. in the result the convictions and sentences awarded to the appellant are set aside. if the appellant is in jail he shall be set at liberty forthwith. the appeal is allowed accordingly.

Judgment:
ORDER

K. Jayachandra Reddy, J.

1. The sole accused in the case is the appellant herein. He was. tried for offences punishable under Sections 302, 307, 380 and 460 I.P.C. by the learned Sessions Judge, Jalore. He was sentenced to death under Section 302 1.P.C. He was also sentenced under Section 307 I.P.C. to undergo 10 years R.I. and to pay a fine of Rs. 2,000/- in default of payment of which to undergo 3 years R.I. , under Section 380 I.P.C. to 5 years R.I. and to pay a fine of Rs. 1,000/- in default of payment of which to undergo 2 years R.I. and under Section 460 I.P.C. to l0 yearsR.I. and to pay afineofRs. 2,000/- in deafault of payment of which to undergo 3 years R.I. The sentences other than death were ordered to run concurrently. The learned Sessions Judge made a reference for confirmation of death sentence and the accused also preferred an appeal against the convictions and sentences and they were disposed of by a common judgment by the High Court. The death sentence was reduced to imprisonment for life by the High Court and other convictions and sentences were confirmed. Hence the present appeal.

2. The prosecution case is that on the intervening night of 13th and 14th July, 1980 the deceased Manshaji and has wife Smt. Gangadevi P.W. 2 were sleeping in the chowk of their house.P. W.18 Pukhraj, son of the deceased Manshaji and his wife Smt. Phau, P.W. 1 were sleeping upstairs. At about 1 A.M. in the night the deceased raised an alarm 'Chor Chor'. Thereupon, Smt. Gangadevi, P.W. 2 got up and saw her husband and the thief grappling with each other. The thief who was armed with a sword, inflicted injuries on the head and on other parts of the body of the deceased. Then P.W. 2 went near the thief and she was also inflicted blows with sword. The deceased fell down and became unconscious. P.W. 18 and his wife P.W. 1 on hearing the alarm came down. The thief had already run away before they came down. The villagers also gathered later. On verification it was fund that the thief had stolen some silver karas. P.W. 18 went to the police station and gave a report. S.H.O., P.W. 30 sent the same for registration to the Police Station and the crime was registered and investigation commenced. Inquest was held and the dead body was sent for post-mortem. The doctor, P.W. 20 who conducted the post-mortem, opined that the deceased died because of the injuries found on him. S.H.O. seized certain articles at the scene of occurrence. He recovered a bag which contained shoes and pieces of towels. He learnt that a person by name Babuda (the appellant before us bears the same name) used go move about tying red chundari turban with a sword having a black sheath and a piece of towel tied to that sheath. The Investigating Officer enquired about his movements. He learnt that Babuda was involved in a case in the Court of Bhimnal and that he did not attend the court as he was an undertrial accused. He made investigation from jail officials and gathered some information about his clothes. Then he go identified all the clothes recovered from the spot and came to know that Babuda was a history-sheeter. The S.H.O. alerted all police stations. He seized a sword said to have been deposited at the police station by one Setter. He arrested the appellant Babuda on 1.9.80 nearly 1-1/2 months after the occurrence and on information given by him that he sold silver karas to one Shesh Ram Sunar (Pawn Broker), P.W. 15, he went to P.W. 15 and recovered silver karas Articles 1, 2, 3 and 4. When the accused was arrested he also recovered a sword with black sheath. Articles 1, 2, 3 and 4 were identified as belonging to the deceased. After completion of the investigation chargesheet wa laid. The prosecution examined 32 witnesses who spoke about various circumstances. The accused pleaded not guilty and stated that he was arrested and implicated falsely. Both the courts below observed that the case rested on the following circumstances:

(1) The accused was found wearing red chundari turban with a sword having black sheath near to the place of occurrence.

(2) The accused left his turban and black sheath on the spot.

(3) The accused committed theft of the four silver karas of Mst. Phau, P.W. 1, which he had sold to Sheshmal Sunar of Sheoganj.

(4) The clothes of the accused were recovered on the next morning from near the place of occurrence which were identified by the jail officials on 24.7.80 to be that of the accused.

(5) The accused was seen with a naked sword which was handed over to Sattar, P.W. 10 in a red velvet sheath which was sold by P.W. 21 Pyarelal and the Patta of which was prepared by Ganpat P.W. 22.

3. It was held by both the courts below that these circumstances particularly the circumstances namely the recovery of silver karas identified as belonging to the deceased established the guilt of the accused. The High Court held that the prosecution has failed to prove that the turban arid the black sheath were of the accused. The High Court has also held that the general evidence that the accused used to wear a red chundari turban and used to have a sword with a black sheath is of no help to the prosecution. The High Court also pointed out that the Investigation Officer has recovered two swords and thus a discrepancy has crept in. This second circumstance was eschewed. The High Court relied on the other circumstances and held that they form a complete chain and bring home the guilt to the accused. We may point out here that the main circumstance relied upon by the High Court was the recovery of the silver karas.

4. It is a case of circumstantial evidence and it is well-settled that the prosecution has to establish each circumstance by independent evidence arid the circumstances so established should form a Complete chain without giving room to any other hypothesis and should be consistent with his guilt and inconsistent with his innocence. When the second circumstance of those mentioned above is eschewed then the remaining circumstances, in our view, are not sufficient to establish the guilt of the appellant. The fourth circumstance namely that the alleged recovery of the clothes of the accused next morning from near the place of occurrence which were identified by jail officials, also appears to be suspicious and untrustworthy. First of all if he was out of jail and moving about it is highly unnatural for him to wear the same clothes and it is highly doubtful whether the jail officials would remember the type of clothes he was wearing when he was in jail some time ago. Then we are left with the recovery of silver karas which was effected after nearly 1-1/2 months from P.W. I5 to whom the accused is alleged to have sold the silver karas. P.W. 15 deposed that he knew the accused and that on 16th July, 1980 he came to his shop in the morning and sold those Articles 1, 2, 3 and 4 and he has entered the same in his account book Ex. P. 16. On 3.9.80 the police came alongwith the accused on his shop and recovered those articles. First of all these recoveries were made after a long time. P.W. 15 admitted in cross-examination that he has not noted the brand of the silver karas and that he has not melted these pairs in the same form. He has also admitted that he has not noted the weight. He also admitted that at that time there was no other old pair in the safe. When confronted as to how he could give the weight he said that by relying on his memory he gave the weight of the articles. We find his evidence artificial. Even otherwise mere recovery of articles after such a long time, cannot be a clinching circumstance to hold that the person who came into possession of these articles could be the murderer. P.W. 15 himself stated that the accused told him that the silver karas belonged to his wife. Therefore there is any amount of suspicion about the recovery of these silver karas. Even otherwise in our view mere recovery does not establishes me guilt of the accused, when there is no other clinching evidence particularly about his presence in the house of the deceased when the occurrence took place. On mere suspicion, however strong, the conviction cannot be based. In the result the convictions and sentences awarded to the appellant are set aside. If the appellant is in jail he shall be set at liberty forthwith. The appeal is allowed accordingly.