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RAM SINGH AND OTHERS v. STATE OF RAJASTHAN AND OTHERS

RAM SINGH AND OTHERS
v.
STATE OF RAJASTHAN AND OTHERS

(High Court Of Rajasthan, Jaipur Bench)

Criminal Appeal No. 1095/2006 and D.B. Cr. Revision Pet. No. 1041 of 2006 | 18-05-2015


Nisha Gupta, J.—DB Cr. Appeal preferred by the accused appellant and Revision Petition instituted by the complainant arise out of a common judgment passed by the trial court in one Sessions Case, hence both these cases shall be decided together by way of this common judgment.

2. D.B. Cr. Appeal under Section 374(2) Cr.P.C., has been filed against the judgment dated 27.6.2006 passed by Special Judge, SC/ST (POA) Cases (Sessions Judge), Jhunjhunu in Sessions Case No. 206/2004 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. 1,000/-. In default of payment of fine to further undergo six months simple imprisonment.

under Section 460 IPC: to undergo three years R.I. and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo six months simple imprisonment.

under Section 201 IPC: to undergo one year R.I. and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo three months simple imprisonment.

(All the sentences were ordered to run concurrently)."

3. The brief facts of the case are that PW/4 Dayanand lodged a written report (Ex. P/7) at Police Station Sadar, Jhunjhunu with the contention that his cousin brother Kesardev was employed at Kopar. He was married at Bhabhundakala. Name of his wife is Shanti and he was having two sons and he was residing at Kopar along with his family. He had 16 bigha land in the village with well and electricity connection and house was also constructed on the well. Earlier the well was given for cultivation to Ram Singh, appellant but one and half month ago, it was given to Bhola Ram as there was quarrel between Ram Singh and Keshar Dev on the issue of division of crop. Bhola Ram informed Jagdish, Raghunath Singh and Mukesh that house of Kesar Dev was lying open, drag marks were there and blood stained shirt was also lying there. On which Dayanand, the informant went on the spot and suspicion was expressed that Ram Singh etc. had murdered Kesardev and put his dead body in the well. On this written report, FIR No. 198/2004 was registered, dead body of the deceased was found in the adjoining well. After usual investigation charge-sheet was filed against three accused persons. The case was committed and tried by Special Judge, SC/ST (POA) Cases (Sessions Judge), Jhunjhunu.

4. The charges were framed against all the three accused for the offence under Sections 302, 460, 382, 201 read with 34 IPC and Section 3(2)(v) SC/ST (Prevention of Atrocities) Act which were denied by the accused persons and they claimed to be tried. The prosecution examined PW/1 Kurdaram, PW/2 Hukmaram, PW/3 Amarsingh, PW/4 Dayanand, PW/5 Raghunath, PW/6 Jagdish, PW/7 Brijlal, PW/8 Banwarilal, PW/9 Amilal, PW/10 Vijaysingh, PW/11 Mukesh, PW/12 Bholaram, PW/13 Smt. Prem, PW/14 Nemichand, PW/15 Shanti, PW/16 Mahasingh, PW/17 Birjaram, PW/18 Gulab, PW/19 Dr. Pratap Singh, PW/20 Pankaj Kumar, PW/21 Satyaveer, PW/22 Nanusingh, PW/23 Moolaram, PW/24 Dharamveer, PW/25 Ramnivas, PW/26 Dinesh Kumar, PW/27 Pawankumar, PW/28 Mahipal, PW/29 Mohansingh and PW/30 Pratapsingh to support its case. Prosecution has also relied upon documents Ex. P/1 to P/32 and Ex. P/56 to P/62.

5. Statements of accused persons were recorded under Section 313 Cr.P.C. No defence witness was examined but documents Ex. D/1 to D/4 were produced.

6. After conclusion of trial, two co-accused were acquitted and the appellant has been convicted and sentenced, as referred above, hence this appeal.

The complainant has also preferred Revision Petition challenging the order of acquittal in favour of respondent Satyaveer Singh and Daleep.

7. The contention of the counsel for the appellant is that the case rests on circumstantial evidence but chain of circumstances is not complete. Evidence of extra-judicial confession has been disbelieved by the court below and only on the basis of recovery of Towel and Bushirt, the appellant cannot be convicted. There is no motive to liquidate the deceased. The appellant has been convicted only on surmises and conjectures hence he be acquitted.

Per contra, the contention of the learned Public Prosecutor is that Bhola Ram and Nemichand are the witnesses to the incident and other incriminating circumstances have also been proved on record against the appellant. The prosecution has come with a specific case that there was a dispute as regards the division of crop which is the motive to liquidate the appellant and recovery of Bushirt and Towel also supports the case of the prosecution and no interference is needed.

8. We have heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case.

9. PW/4 Dayanand lodged the written report and before the trial Court he deposed that Kesardev used to live in Coper with his family but he was having land in Patusari and also constructed a house having well with electricity connection. Earlier the land was given to Ram Singh but one and half months prior to the incident, they had quarrel and Ram Singh threatened Kesardev to liquidate him. Thereafter the land was given to Bhola Ram for cultivation. Kesardev used to visit the well on the holidays. On 13.9.2004 Bhola Ram informed him about the incident on which he Birju, Raghunath, Nemichand, Mukesh, Jagdish all went to the well of Kesardev. The room was lying open and in the room on the bed, bushirt, one pant, one bed-sheet and papers were lying and drag marks were also there in the room. A shirt was also lying blood stained close to the well. The witness further deposed that they called for a mirror and peeped through it and saw the dead body of Kesardev lying in the well. The matter was informed to the police. The police came there and recovered the dead body. The other witness PW/3 Amarsingh stated that Kesardev was his neighbour. He was also residing on agricultural land. Kesardev was working at Copar. Earlier the land of Kesardev was given to Ramsingh but 9-10 months earlier, they had a quarrel on the accounts of the crop. At that time, Ram Singh threatened Kesardev. He further deposed that Shanti wife of Kesardev was having illicit relations with Ram Singh and 9-10 months earlier Kesardev took his land from Ram Singh and gave it to Bhola Ram. He further deposed that in the evening at 7.00 PM Kesardev came to his house and on the next morning Bhola Ram informed him and other co-villagers and when they went to the field of Kesardev foot- marks of 3-4 persons were found there and drag marks were also there. He further deposed that shirt, pant, bed-sheet and papers were also there. Thereafter from the well the dead body was taken out by Vinod and Amilal.

10. PW/5 Raghunath also stated that on 13.9.2004 Bholaram informed him that Kesardev is not on bed and thereafter his dead body was found in the well of Kesardev. PW/6 Jagdish and PW/7 Brijlal have also stated so. PW/8 Banwarilal also stated on the same lines as have been stated by the witnesses mentioned earlier. PW/10 Vijay Singh is son of the deceased. He stated that earlier the land was given to Ram Singh but two months earlier to the incident Ram Singh and his father had quarrel on the issue of division of crop and on 15.8.2004, the well was given to Bholaram for cultivation. PW/27 Pawan Kumar is the other son of the deceased who deposed on the same lines as Vijay Singh (PW/10) has stated.

11. PW/15 Shanti is wife of the deceased. She also deposed that earlier the land was given to Ram Singh and thereafter it was given to Bhola Ram for cultivation. His husband went to the well alone and thereafter she heard about the death. She showed suspicion qua Ramsingh but no reason was divulged. PW/11 Mukesh is the contractor who stated that due to a dispute of division of crop, the land was given for cultivation to Bhola Ram and on the day of the incident, Bhola Ram informed about the death of deceased. The prosecution witnesses came with a case that Bhola Ram informed them about the death of Kesardev and his dead body was found in the well and witnesses also stated that there was a quarrel between deceased and appellant about two months earlier to the incident on the issue of division of crop.

12. PW/12 Bholaram is the star witness of the prosecution. He deposed that 14 months ago, the land was given to him for cultivation thereafter Kesardev started living in Copar along with his family. On 12th at about 8.00 in the morning he came to the well. He went to Jhunjhunu after instructing him to collect the vegetables in a bag as he intended to take them to Copar. He further deposed that on that day Billu, brother of Ram Singh also came there to inquire about Kesardev and he was informed that Kesardev went to Jhunjhunu and would return upto 6-7 P.M. He further stated that he went to his house in the village but returned back at 9.00 PM and he slept in the hut near the well. At about 11.30 P.M. he heard some noise and saw Ram Singh, Billu @ Satyaveer, Daleep all were giving beating to Kesardev. They were dragging him and they threw him in the well. They also threatened him to kill. He further deposed that he saw the incident from a distance of 5-7 steps, accused persons gave him threats and he concealed himself in the crop of millet till 5.30 A.M then he informed the incident to Nemi Chand. Nemi Chand further informed to Raghunath, Bijju, Mukesh, Jagdish etc. and all persons came to the place of occurrence. He further deposed that as he was scared, he did not disclose the fact to anyone and ultimately he informed the police about the incident. He further stated that Ram Singh was having illicit relations with the wife of the deceased and Ram Singh and Kesardev were having quarrel 15-20 days prior to the incident.

13. In cross-examination, witness further stated that he returned back to the well on the night of the incident and his belongings and bed were all there but while inspection of site (Ex. P/1) no belongings of this witness were found there and no bed was found in the hut near the well. The conduct of this witness seems to be quite unnatural as he had not tried to save the deceased and in the morning only he informed about the incident to Nemichand. He has not tried to run away from the scene of occurrence. Per contra his contention is that he remained there all the night. He resiled from his earlier version Ex. D/3 and furthermore, in cross-examination he admitted the fact that on instructions of Raghunath, he brought a mirror and thereafter Raghunath searched the dead body in the well with the help of the mirror. He admitted the fact that he had not disclosed that the dead body was lying in the well. If Bhola Ram (PW/12) was eye-witness to the incident and he had narrated the whole incident to Nemi Chand and villagers, then there was no occasion for the villagers to search for the dead body and to have the help of mirror as they would straightway go to the well to recover the dead body. This circumstance alone is sufficient to discard the testimony of Bhola Ram (PW/12).

14. PW/14 Nemichand is the witness to whom Bhola Ram informed about the incident in the morning at 5.00 A.M. Witness stated that Bhola Ram informed him that accused persons threw Kesardev in the well and witness further deposed that accused persons also gave threats to Bhola Ram. Nemi Chand (PW/14) further deposed that at about 6-7 A.M. he and Bholaram went to the fields of Kesardev where room was lying open and bed-sheet, black pant, Bushirt and some papers were on the bed and drag marks were also there. Thereafter Raghunath called mirror from Brijlal and they saw in the well with the help of the mirror and came to know that dead body of Kesardev was lying in the well. If Nemi Chand was informed by Bhola Ram that dead body was thrown by the culprits in the well then there was no occasion for Raghunath or other co-villagers to search for the dead body or to have the help of mirror. Nemi Chand (PW/14) deposed as if the villagers did not know about the location of the dead body and only from the drag marks and foot prints dead body was searched and to further ascertain the fact the mirror was called for. In cross-examination also the witness reiterated the fact that Bhola Ram informed him that Kesardev was thrown in the well. He also improved his version from his earlier version (Ex. D/4). In the written report (Ex. P/7) lodged by Dayanand (PW/4), there is no narration of the fact that Bhola Ram informed them that dead body was thrown in the well and Bhola Ram has not been named as eye-witness in the written report (Ex. P/7). Hence it can be concluded that PW/12 Bhola Ram is not an eye-witness to the incident. He is a designed witness and reliance cannot be placed on the testimony of Bhola Ram (PW/12).

15. The prosecution witnesses PW/4 Dayaram, PW/5 Raghunath and PW/6 Jagdish have stated in one voice that Bhola Ram informed them that Kesardev was missing and after search, his dead body was found in the well which clearly rules out the fact that PW/12 Bhola Ram was the eye-witness to the incident. Had Bhola Ram been the eye-witness to the incident this significant fact must have been narrated in written report (Ex. P/7).

16. Apart from the evidence of Bhola Ram (PW/12) prosecution has also relied upon the circumstantial evidence to connect the appellant with the crime. PW/22 Nanu Singh stated that he went to the village Patusari and took foot-prints from the scene of occurrence. He further stated that he also took the foot-prints of appellant Ram Singh. PW/23 Moolaram is another witness in whose presence footprints were taken and prosecution has further relied upon report of comparison of chance foot-impression moulds (Ex. P/60) which says that foot moulds 'A' lifted from crime scene is having similar features with mould 'C' foot impression of appellant and contention of the State is that comparison of foot-prints also proves incriminating evidence against the appellant but counsel for the appellant has rightly contended that signs of foot-prints is not fully developed one and conviction cannot rest on the evidence of foot prints. Apart from it, the evidentiary value of footprint is not well-established and reliance has been placed on Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, AIR 1997 SC 2960 : (1997) CriLJ 3567 : (1997) 5 JT 451 : (1997) 4 SCALE 134 : (1997) 10 SCC 44 : (1997) AIRSCW 2980 : (1997) 4 Supreme 635 wherein it has been held that if evidence relating to footprint is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence.

17. On the law explained above, it can be safely concluded that evidence relating to the footprint is not a developed science. Here in the present case, there is no other reliable evidence to prove the identity of the culprit, hence evidence of foot-prints is of no use.

18. The other circumstance which has been brought against the appellant is that a shirt and a towel were recovered at the instance of appellant. PW/30 Investigating Officer stated that on the information of appellant Bushirt and Towel were recovered at the instance of the appellant from his own house. PW/18 Gulab is the attesting witness to the recovery and further the case of the prosecution is that Bushirt was having blood group AB which was the blood group of deceased and it completes the chain of circumstances but counsel for the appellant has rightly contended that nothing has been brought on record which shows the blood group of the appellant, and thus prosecution has not eliminated the possibility that blood group of the appellant himself was on the Bushirt, further the contention of the counsel for the appellant is that it is very improbable that blood stained Bushirt or towel would be kept by the appellant unnecessarily. Be that as it may, on towel no blood group could be ascertained. Hence recovery of certain articles on the information of the accused is too weak a piece of evidence to sustain conviction of the accused. Reliance is placed on Bhagwan Singh and Others Vs. State of M.P., AIR 2003 SC 1088 : (2003) CriLJ 1262 : (2003) 3 JT 599 : (2003) 1 SCALE 407 : (2003) 3 SCC 21 : (2003) 1 SCR 506 : (2003) AIRSCW 617 : (2003) 1 Supreme 698 .

19. PW/19 Dr. Pratap Singh conducted the post mortem on the dead body of deceased Kesardev and found the following injuries on his person:

"1. Rigor mortis present in lower limbs.

2. Lacerated wound 6 cm x 3 cm x 1/2 cm Rt. Parietal region of head on exploration. No bony injury only sub scalp haematoma seen.

3. Abrasion 20 cm x 15 cm on Rt. Side of chest with diffuse swelling on left side of chest on exploration one liter of large amount of blood in thoracic cavity with fracture of 3, 4, 5, 6, 7, 8 rib on both sides which pierce into pleura, lungs, spleen and liver on exploration of abdominal cavity there in rapture of peritoneal cavity with rapture of spleen and liver.

4. Lacerated wound 20 cm x 6 cm x muscle deep through which the loops of intestine is visible on Rt. inguinal regions.

5. Bleeding from nose and laceration lower lip with loss of teeth and upper central and two lower left incision and canine.

6. Diffuse swelling Rt shoulder on exploration there is fracture of Rt. Clavicle.

7. Diffuse swelling Rt forearm on exploration there is fracture of both radius and ulna with haematoma seen.

8. Lacerated wound 3 cm x 2 cm x 1/2 cm left forearm on exploration fracture of both bone seen near wrist.

9. Diffuse swelling Rt leg middle 1/3 on exploration there is fracture of both leg bones with haematoma seen.

10. Abrasion 10 cm x 8 cm left side ball.

11. Bleeding of right eye on exploration them is haematoma in which eye lid seen.

12. Tags of cross seen in the tie of underwear."

20. As per Post Mortem Report (Ex. P/18), the cause of death was found to be multiple injuries leading to massive hemorrhage hence the case of the prosecution is that Kesardev died a homicidal death.

21. The counsel for the appellant has submitted that the circumstances which have 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 Vasant Sampat Dupare Vs. State of Maharashtra, (2014) 4 CCR 520 : (2014) 4 Crimes 337 : (2015) 1 RCR(Criminal) 127 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 Vs. The State of Madhya Pradesh, AIR 1952 SC 343 : (1953) CriLJ 129 : (1952) 1 SCR 1091 , 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 Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 , 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 and Others Vs. State of Andhra Pradesh, (1996) 5 AD 445 : AIR 1996 SC 3390 : (1996) CriLJ 3461 : (1996) 3 Crimes 119 : (1996) 6 JT 739 : (1996) 5 SCALE 318 : (1996) 10 SCC 193 : (1996) 3 SCR 479 Supp 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, AIR 2002 SC 2902 : (2002) CriLJ 3782 : (2002) 4 Crimes 104 : (2002) 6 JT 32 : (2002) 5 SCALE 583 : (2002) 9 SCC 158 : (2002) AIRSCW 3307 : (2002) 6 Supreme 56 where recovery of weapon was found doubtful and benefit has been allowed to the appellant. Further reliance has been placed on Hanumant Vs. The State of Madhya Pradesh, AIR 1952 SC 343 : (1953) CriLJ 129 : (1952) 1 SCR 1091 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."

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 brought 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 27.6.2006 passed by Special Judge, SC/ST (POA) Cases (Sessions Judge), Jhunjhunu in Sessions Case No. 206/2004 is set aside. The appellant is acquitted of the charges levelled against him. Appellant Ram Singh 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 stand discharged.

Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellant Ram Singh 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 appellants, on receipt of notice thereof, shall appear before the Supreme Court.

D.B. Cr. Revision Pet. No. 1041/2006.

As DB Cr. Appeal No. 1095/2006 has been allowed, nothing survives in this revision petition and the same is accordingly disposed of.

Advocates List

For Petitioner : Biri Singh, Senior AdvocateRajesh Choudhary, for the Appellant; Aladeen Khan, Public Prosecutor, Advocates for the Respondent

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

Kanwaljit Singh Ahluwalia J Nisha Gupta J

Eq Citation