Gujara son of Hona Kher vs State of Rajasthan

In this cr. jail appeal filed by the accused appellant Gujra S/o Hona Kher, the judgment dated 7.9.2011 passed in Sessions Case No.119/2008 by the learned Addl. Sessions Judge (FT) NO.1, Udaipur is under challenged. The learned trial court convicted the accused appellant Gujara for offence us 302, 447 of the IPC and us 4/25 of the Arms Act and passed the following sentence:

Under Section 302 IPC Life:- Imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one month additional SI.

Under Section 447 IPC :- Two months RI with fine of Rs.500/- and in default of payment of fine to further undergo 15 days additional SI

Under Section 4/25 of the Arms Act :- One year's RI with fine of Rs.500/- and in default of payment of fine to further undergo 15 days addition SI.

As per facts of the case, an FIR No.29/2008 (Ex.P/2) was registered against the unknown person at Police Station Kothada on verbal information given by PW--7 Laxman on 25.4.2008 under Sections 302, 324 IPC and under Section 4 / 25 of the Arms Act in which following information was given by the complainant Laxman, which reads as under: -

"VERNACULAR MATTER OMITTED"

After registration of the FIR no.29/2008 on 25.8.2008 the ASI of Police Station Kotada immediately went on spot and inspected the site and prepared inspection report (Ex.P/3), so also taken simple soil and blood stained soil from the place of occurrence and one blood stained pillow and cloths of the deceased were taken in possession vide Ex.P/8. The dead body of the deceased written statement also taken to the Primary Health Center, Kotada where post mortem was conducted at 4.00 pm on 25.4.2008 and post mortem report (Ex.P/19) was handed over to the investigating officer for investigation.

As per post mortem report, cause of death was one incised wound on neck which was ante mortem in nature and hemorrhagic

shock. On the basis of evidence of last seen, the accused appellant was arrested vide Ex.P/10 on 29.4.2008 at 2.00 pm and, thereafter, upon his information the place of occurrence was verified vide Ex.P/9 and on completion of investigation, the charge-sheet was filed against the accused appellant under Section 302, 447, 324 IPC red with Section 4 / 25 of the Arms Act on the basis of circumstantial evidence of last seen in the court of Judicial Magistrate, kotada, from where, the case was committed to the court of Sessions Judge, Udaipur but transferred to the court of Addl. District & Sessions Judge (FT) No.1, Udaipur for trial.

The learned trial court after providing an opportunity of hearing framed charge against the accused appellant for the offences under Section 447, 302 IPC and under Section 4 / 25 of the Arms Act but accused appellant denied the charge levelled against him and prayed for trial.

During trial, the statements of 17 prosecution witnesses were recorded and 19 documents were exhibited in support of prosecution case and, thereafter, learned trial court proceeded to record statement of the accused appellant under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C. the accused appellant gave explanation that I have been falsely implicated in this case and appeared as defence witness DW-1 in which, denied the allegation of killing the deceased Bakka in the house of Laxman. Further, it is stated that I was arrested by the police from my house and there was no quarrel in between me and Bakka, therefore, it is a case in which the prosecution has implicated me without any reliable evidence of last seen and motive.

After recording evidence of both the sides, the learned trial court finally heard the arguments and convicted the accused appellant for offence under Section 302, 447 IPC and under Section 4 / 25 of the Arms Act and imposed sentence mentioned above vide impugned judgment dated 7.9.2011.

The learned Amicus Curiae Ms. Deepika Purohit vehemently argued that entire case is based upon circumstantial evidence because there is no direct evidence on record to connected the accused appellant with the alleged crime, the accused appellant was arrested on the basis of circumstantial evidence of last seen near the place of occurrence there is no evidence on record to prove the intention or any enmity in between the accused appellant with the deceased Bakka. The so called weapon sword was also recovered from the place of occurrence which is house of complainant himself. None of the witnesses proved the fact before the court that there statements were recorded under Section 161 Cr.P.C. during investigation by the investigating officer, therefore, whole prosecution case is based upon false evidence of last seen.

The learned Amicus Curiae submits that specific question was put to the witnesses of last seen whether any investigation was made from them by the police during investigation, it is replied by them that no such investigation was made by the police during investigation nor their statements were recorded by the police. Meaning thereby, these witnesses of last seen were planted by the prosecution to prove the case against the accused appellant, therefore, finding of guilt recorded by the learned trial court deserves to be quashed and set aside.

Learned Amicus curiae argued that there is no evidence to prove the fact that sword used by causing injury recovered from the place of occurrence was belonging to the accused appellant but only on the basis of presumption, the learned trial court gave finding that the sword recovered from the house of complainant which is place of occurrence was of the accused appellant, therefore, in absence, of any reliable evidence to connect the ownership of sword with the accused appellant, there is no question to convict the accused appellant for the alleged crime, the learned trial court committed a grave error to accept the fact of the accused appellant was owner of sword and held guilty for offence under Section 4 / 25 of the Arms Act.

Learned counsel for the appellant submits that none of the witnesses gave statement before the court that conduct of the accused appellant with the deceased or any member of village was bad, further invited our attention towards the fact that Smt. Sachhi, mother of Laxman turned hostile and did not support the prosecution case. The recovery of cloths has not been proved beyond reasonable doubt because two witnesses Mohan Lal and Johari Lal (PW--14 and PW--15) were examined in the trial categorically stated in the cross-examination that their signatures were obtained in the Police Station by the police, therefore, it is a case in which prosecution has failed to prove the recovery of cloths of the accused appellant, upon which the blood was found as per the FSL report.

The learned Amicus Curiae submit that as per complainant, the alleged occurrence took place in his house in the mid night, therefore, it was not possible for any witness to identify the accused, therefore, whole prosecution case is based upon concocted story and finding of guilt recorded by the learned trial court on the basis of evidence of last seen is not sustainable in law.

Learned Amicus Curiae lastly argued that it is settled principle of law that in the event of non-availability of direct evidence, the prosecution is require to prove its case beyond reasonable doubt if the prosecution case is based upon circumstantial evidence. In this case, prosecution has completely failed to prove the evidence of last seen together, so also, failed to establish that there was any motive and failed to prove that witness seen the accused appellant at the place of occurrence with deceased Bakka so also failed to prove the recovery of cloths beyond reasonable doubt, therefore, the judgment impugned may kindly be quashed and set aside.

Per contra learned Public Prosecutor submits that it is a case in which PW--1 Ladura, PW--2 Smt. Sita, PW--3 Shanker, PW--5 Bhanwar Lal, PW--6 Fatta and PW--7 Laxman author of the FIR categorically stated before the court that after incident, they saw accused appellant going on the way coming from the house of complainant Laxman where injury was caused to the deceased Bakka, as such there is no question to disbelieve the testimony of these persons to accept the presence of the accused appellant at the place of occurrence, therefore, no error has been committed by the learned trial court so as to hold accused appellant guilty.

Learned Public Prosecutor further vehemently argued that blood group found upon the cloths of the accused appellant and upon the sword and cloths of the deceased was of "O" group as per FSL report, therefore, it is obvious that learned trial court correctly assessed the circumstantial evidence on record so as to convict the accused appellant for alleged crime of murder of late Bakka, therefore, the instant jail appeal may kindly be dismissed.

After hearing learned counsel for the parties, we have perused the statements of all the witnesses including witnesses who were present at the place of occurrence. Admittedly, the FIR was filed against unknown person by the witness Laxman (PW--

7). In the FIR (Ex.P/2) it is nowhere stated by Laxman (PW--7) that he saw the accused appellant at the place of occurrence. As per prosecution case, the deceased Bakka was sleeping in the house of complainant Laxman being brother-in-law and in the night his wife awaken him and said that somebody has inflicted injury by sword upon the neck of my brother Bakka and he is lying near the bed, the sword is also lying there. As per statement of Laxman upon receiving such information, Shanker, brother of Laxman played the drum to call other persons of the locality. After some time witness Bhanwar, Fatta and Ladura came there and, thereafter, information of the incident was given at the Police Station. Admittedly, no allegation was levelled by the complainant Laxman against the accused appellant Gujara nor any statement was made with regard to his presence.

We have perused the statement of PW--1 Ladura who came on spot after hearing noise of drum. He said that on the date of incident in the night at 12''O clock I saw Gujara when he was going towards the well, coming from the house of Laxman. In the cross-examination it is specifically stated by him that there was no quarrel in between Laxman, Gujara and the deceased. Further, said that he has seen the sword in the house of accused Gajara, when he reached on spot the sword was lying near the bed of deceased Bakka and blood was found upon the said bed. It is also stated by him that Gajara was wearing white shirt and there was blood upon his shirt, but it is very strange that neither this witness was present at the time of arrest of the accused appellant nor he was present at the time of recovery of shirt, which is evident from the fact that shirt of the accused appellant was recovered in the presence of two witnesses Mohan Lal and Johari Lal (PW--14 and PW--15) and both these witnesses are not corroborating the fact disclosed by the PW--1 Ladura that there was blood upon the shirt of accused Gujara.

Similarly, PW--2 Sita stated in the cross- examination that I have not seen any person to inflict injury upon the neck of deceased and upon perusal of her statement in the cross-examination it is obvious that a concocted story is narrated by

her. The witness PW--2 Sita gave following statement in her cross-examination, which reads as under:

"VERNACULAR MATTER OMITTED"

Upon perusal of above statement, we are of the opinion that such type of statement cannot be relied upon so as to hold any person guilty.

Similar type of statement is given by PW--3 Shanker, PW--5 Bhanwar Lal and PW--6 Fatta to prove the fact of last seen near the place of occurrence not last seen together.

Upon assessment of the statement of all witnesses of last seen, there is no doubt that sword was recovered from the place of occurrence, lying in front of the body of the deceased. There is no evidence of enmity in between the deceased and the accused appellant. It is also evident from the cross-examination of these witnesses that their statements were not recorded by the police during investigation but in the court they gave statement that on the date of incident, Gajara was going towards well coming from the house of Laxman.

In our opinion, such type of statement cannot be used as an evidence to hold the person guilty because as per prosecution case, the incident took place in the mid night and after awaking Laxman by his wife Sita, drum was played by Shanker, all the persons awaken and came to the house of Laxman where dead body and weapon sword was lying. In our opinion, upon such type of evidence where motive is not proved and evidence of last seen together is absent, it cannot be presumed that prosecution has proved its case beyond reasonable doubt. The entire case is based upon circumstantial evidence that in the night some witnesses saw Gujara while he was going towards well cannot be relied upon to hold accused appellant guilty. Therefore, in absence of any corroborative evidence or any evidence of intention/motive, we are not inclined to accept the finding of the learned trial court whereby the accused appellant has been held guilty for commission of offence under Section 302 IPC.

Admittedly, neither weapon sword was recovered at the instance of the accused appellant nor there is any identification or evidence to connect the sword recovered from the place the place of occurrence with the accused appellant. The recovery of shirt has not been proved by the prosecution because two witnesses of recovery Mohan Lal and Johari Lal (PW--14 and PW--15) categorically stated that their signatures were obtained upon recovery memo of shirt (Ex.P/1) in the Police Station.

PW--14 Mohan Lal stated that accused appellant Gujara was in the Police Station where shirt was taken out from almirah by the police official and after preparing Ex.P/10 and P/11 his signatures were obtained by the police.

PW--15 Johari lal stated that I was called by the police in the Police Station. The shirt was already lying upon the table when I entered in the Police Station and the accused appellant Gujara was sitting in the lock up. He was not wearing any shirt. Meaning thereby, it is a case in which prosecution has completely failed to establish the case against the accused appellant on the basis of circumstantial evidence.

As per verdict judgments of Hon'ble Apex Court in the cases of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in (2013) 5 SCC 722, and Jose @ Pappachan Vs. The Sub-Inspector of Police, Koyilandy & Ors. reported in (2016)

10 SCC 519, if two views are possible then benefit goes to the accused appellant, therefore, it is obvious in this case that finding of trial court so as to hold respondents guilt for offence u/s 302 IPC is not sustainable in law.

In the case of Raj Kumar Singh @ Raju @ Batya (supra), the Hon'ble Apex Court while discussing earlier judgments rendered by Apex Court, held as infra:

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. ......

In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence".

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In M.G. Agarwal v. State of Maharashtra : AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.

Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under:

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

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In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the Appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the Appellant are set aside. The Appellant be released forthwith unless wanted in some other case."

We have considered the finding of learned trial court on the basis of circumstantial evidence coupled with the aforesaid verdict of Hon'ble Supreme Court to assess the circumstantial evidence.

In our opinion, when prosecution has failed to prove recovery of the blood stained shirt of the accused appellant and there is no evidence agant the accused appellant and prosecution has failed to prove that sword was recovered at the place of occurrence was belonging to the accused appellant, entire case of the prosecution become seriously doubtful. Therefore, the accused appellant is entitled for the benefit of doubt.

In view of the above, discussion, we are of the opinion that finding of guilt recorded by the learned trial court on the basis of circumstantial evidence that accused appellant was seen outside the house of deceased when he was going towards the well on the date of incident is not sufficient to convict the accused appellant for the serious crime of murder.

Consequently, this cr. jail appeal is hereby allowed. The judgment dated 7.9.2011 passed by the learned Addl. District & Sessions Judge (FT) NO.1, Udaipur in Sessions Case NO.119/2008 convicting and sentencing the accused appellant for the offences under Section 302, 447 IPC and under Section 4 / 25 of the Arms Act is hereby quashed and set aside and the accused appellant is acquitted from all the charges levelled against him. The accused appellant shall be released forthwith if not required in any other case.

Keeping in view, however, the provisions of Section 437A Cr.P.C . the accused appellant Gujara is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned 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 the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.