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Judgment
Nirmal Singh Judge
This appeal is directed against the judgment dated 29.07.1999 and order of conviction and sentence dated 31.07.1999 passed by learned
Additional Sessions Judge, Kishatwar vide which Omkar Singh and Madan Lal appellantsaccused have been convicted and sentenced to
imprisonment for life and fine of Rs.4000/ (Rupees four thousand only) each under section 302/34 RFC. In default of payment of fine, the accused
shall undergo simple imprisonment for four months each. The accused have been further sentenced to rigorous imprisonment for four years under
section 392 R.P.C. and fine of Rs.2000/ (Rupees two thousand only) each. In default of payment of fine, the accused shall further undergo simple
imprisonment for four months each.
The prosecution story in narrow compass is that Charan Dass complainant had employed Makhan Lal as private servant for the last more than
fifteen years at his shop, who used to attend his domestic work. On 15.10.1992, he sent Makhan Lal to Padder area for the recovery of the debts
from different shopkeepers, to whom he had supplied goods. Makhan Lal did not return back. Charan Dass went for the search of Makhan Lal
and he made enquiry from different places. It came into his notice that Makhan Lal had collected more than Rs.50,000/ (Rupees fifty thousand) in
cash from the different shopkeepers and he has also deposited a sum of Rs.57,000/ (Rupees fifty seven thousand) in the State Bank of India,
Branch Kellar Pangi and Makhan Lal had got prepared four bank drafts on 24.10.1992,
but the whereabouts of Makhan Lal could not be ascertained. A suspicion was created in the mind of the complainant, he lodged a missing report
with the police on 14.11.1992 in Police Station, Atholi. The dead body of Makhan Lal was found near Garhmi Nallah about 600700 meters down
the hill near river Chenab, the same was sent for post mortem examination. Dr. Rajesh Kumar, Assistant Surgeon had conducted the autopsy on
the dead body on 19.11.1992.
During the investigation, one ledger book containing 158 leaves was also found at a little distance from the dead body. The site plan was also
prepared of the placeof occurrence. The clay was seized vide seizure memo marked as EXPWTC1. The accused were arrested and they made a
disclosure statement that they had torn out the Bank draft into pieces and thrown down in the hill and also made disclosure statement that they had
concealed the cash in a wooden box in the house of one Ram Singh. In pursuance of the disclosure statement they recovered the pieces of torn
bank draft as well as cash from the specified place. After the completion of the investigation, the challan was presented before the court of Chief
Judicial Magistrate, Dodaandthe case was committed to the Court of learned Additional Sessions Judge, Kishatwar. The Accused were charge
sheeted under sections 302/392/404/ 34 R.P.C., to which they pleaded not guilty and claimed trial.
To prove the case, the prosecution has examined the following witnesses, namely, Thakar Chand, Prithvi Raj, Charan Dass, Wazir Chand,
Baldev Singh, Mst. Aloo, Sunder, Bhoopa Ram, Dr. Rajesh Kumar, Banarsi Dass, Zulafkar Hussain, Irsahad Ahmad, Sham Lai, AmarNath,
Karam Lal, Ghulam Nabi Mir, Jan Mohd, Gian Chand, Nizam Din, DinaNath and Kasturi Lal.
When the accused were examined under Section 342 Cr.P.C., to explain the incriminating circumstances appearing in the prosecution evidence,
they denied simpliciter and false implications.
The accused were called to lead evidence in their defence. They examined Sujan Singh and Parbat Singh.
After perusing the prosecution and the defence evidence, the learned Additional Sessions Judge Kishatwar found the appellants guilty and
convicted and sentenced them as stated in Para 1 of the judgment. Aggrieved by which the accused filed the present appeal, where the trial court
has made reference as required under section 374 of the Code of Criminal Procedure for confirmation of the sentence.
We have heard Mr. J.S. Kotwal, learned senior counsel appearing for the appellants and also Mr. P.C. Sharma, learned Additional Advocate
General appearing for the respondentState and perused the record minutely.
There is no direct evidence in this case. The case of the prosecution is based upon the circumstantial evidence. In order to sustain the conviction
on the circumstantial evidence, we have to see whether the chain of circumstantial evidence is complete and these circumstances point unerringly
towards the guilt of the accused and the offence has been committed by the accused only and none else.
In AIR 1967 SC 520 Charan Singh V. The State of Uttar Pradesh in para No. 5 of the judgment it was held as under:
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 the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person;
that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in
other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of
the accused person. In such cases, the Court must guard against the danger of allowing conjecture or suspicion to take the place of legal proof.
Similar view has been taken by the Hon'ble Apex Court in AIR 1982SC 1157Gambhir V. State of Maharashtra, where it was held in para No. 9
of the judgment as follows:
The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three
tests; (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances
should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The
circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of
the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
For appreciation of circumstantial evidence, the Hon'ble Supreme Court in the case reported as 2002 (4) RC (Criminal) 95, Balu Sonba Shinda
V. The State of Maharashtra, laid down the following guidelines to be followed:
(1) 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.
(2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly
inconsistent with the innocence of the accused and is consistent only with his guilt.
(3) There should be no missing links but it is not that everyone of the links must appear on the surface of the evidence, since some of these links
may only be inferred from the proved facts.
(4) On the availability of two inferences, the one in favour of the accused must be accepted.
(5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be.
Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable
and not otherwise"".
In the present case, the prosecution has relied upon the two circumstances. One of the circumstances relied upon by the prosecution is that the
deceased was last seen by Prithvi Raj, who was posted as Teacher in Primary School Palali Padder. He has deposed in his statement on
23.10.1992, while the schools were closed on account of Poofa Holidays, he also wanted to come to his home and on the way to his home, he
stayed at Gulabgarh for night on 24.10.1992, when he left for his home at about 8.30 in the morning and reached near 37"" Kilometer of Gref road
and crossed Nallah Garhmi, deceased met him there and he disclosed to him that he was going to Gulabgarh and had to reach Kishatwar as Diwali
falls on the next day. He further deposed that after about ten minutes, he met the accused also, who informed him that they were going to
Gulabgarh and after covering a little distance, he met a number of persons and when he came back after vacation to attend the school, he was
summoned by the police.
When this witness was crossexamined, he stated that he cannot say how much distance he had covered within ten minutes after departing from
the deceased.
From the evidence of Prithvi Raj, it is not established that he had seen the deceased in company of appellants. His only evidence is that he had
seen the accused after ten minutes going towards Gulab Garh. There is no evidence of the prosecution that at any stage any person had seen the
deceased in company of the appellants.
The other circumstance relied upon by the prosecution is that the accused had made a disclosure statement in presence of PWs Dina Nath,
Nizam Din and Kasturi Lai that they had snatched the bank draft and has torn into pieces and had kept concealed at Sudri and they can got
recover. In pursuance to that statement they had got recovered the pieces of the torn bank draft from the specified place.
Dina Nath when was examined has deposed that he knew the accused by face but he does not know their names. He had signed disclosure
statement of the accused, but he does not know whether the other witnesses signed the disclosure statement or not.
Kasturi Lal deposed in his statement that accused were arrested in this case and brought to police station Autholi where they were interrogated
and made disclosure statements in the presence of the witness. In their statements they have admitted to have torn into pieces the bank draft after
which the same has been thrown down the hill.
Nizam Din has made a statement that on interrogation the accused made a disclosure statement that the stolen amount had been kept by them
in their houses. Enquiries about the bank draft were also made to which they stated that the bank draft had been torn into pieces by them and
concealed at Sudri. The police obtained his signatures on some papers.
From the evidence of PWs Dina Nath, Kasturi Lai and Nizam Din, it has not been established that the accused had made a disclosure
statement in presence of these witnesses rather from their evidence, it proves that the prosecution has recorded the statements of the appellants
and had got signatures of these PWs namely, Dina Nath, Kasturi Lai and Nizam Din. Dina. Nath has admitted in his crossexamination that he had
signed the disclosure statement of the accused, but be does not know whether the other witnesses have signed the disclosure statements or not. It
shows that in the presence of PWs Kasturi Lai and Nizam Din accused have not made disclosure statements. When the witnesses are making
contradictory statements, then no reliance can be placed on the same. Furthermore, in the presence of these witnesses torn pieces of bank draft
have not been recovered. It is pertinent to mention here that Kasturi Lal PW has admitted that the torn pieces of bank draft were thrown down the
hill. If the bank draft had been thrown down then collecting the pieces of torn bank draft is padding. Statement of the accused is only admissible
under section 27 of the Evidence Act, if on the disclosure statement made by the accused in the presence of the witnesses, it led to the recovery,
but as it has been mentioned above, no recovery has been effected in the presence of the witnesses. Therefore, no reliance can be placed on the
statements of Dina Nath, Kasturi Lal and Nizam Din.
The other circumstances relied upon by the prosecution is that accused Omkar Singh and Madan Lai had made a disclosure statement in
presence of Baldev Singh and Wazir Chand that they had kept concealed the looted money in a wooden box in the house of Ram Singh and in
pursuance of disclosure statements made by them, they got recovered the looted money from the specified place.
Wazir Chand has deposed that he had gone to the police station at 8 a.m. and had seen the accused in the police lock up. About 20 Gref
persons had also been brought to police station for enquiry purpose. Appellants made a disclosure statement before the police in his presence that
they had concealed cash in the house of Ram Singh and he can recover the same. In pursuance of that statement, he led the police party to village
Sohal and reached there at about 12
noon and recovered the cash, but when he was crossexamined, he stated that police had raided the house of Ram Singh wherefrom the cash was
recovered, but he stated that he did not know from which place the recovery of cash was made by the police as he had not entered in the room.
This shows that in the presence of Wazir Chand, PW, no recovery has been effected from the appellants.
PW Baldev Singh has admitted in his statement that police had not recovered anything in his presence, but he had accompanied the police to
the place wherefrom pieces of papers were recovered by the police. He has further admitted that he had seen the cash, wooden box and the
clothes which had been seized by the police during the investigation, at that time the police was sitting on the roof of the house. The police had
informed him that these items were to be shown to the witnesses as the same were recovered during the investigation. So from the evidence of
Baldev Singh, it is crystal clear that police has not recovered any article in his presence.
Motive to commit crime was that the appellants have robbed the deceased Makhan Laland after robbing him, he had been killed. Charan Dass
complainant has deposed in his statement that the deceased had collected more than Rs. 50,0007 from different shopkeepers who owed money to
him. It is case of the prosecution that Makhan Lalhad prepared a bank draft for an amount of Rs. 57,0007 from State Bank of India Branch Kellar
Pangi. It is not the case of the prosecution that deceased Makhan Lalhad collected more that rupees one lac. Makhan Laldeceased had prepared
a bank draft of an amount of Rs. 57,0007 from the State Bank of India Branch Kellar Pangi. If the amount which has been collected by the
deceased was deposited with the bank and had obtained the bank draft then motive for committing crime by the appellants is also not established.
The appellants have examined in their defence DWs Sujan Singh and Parbat Singh.
Sujan Singh is father of Madan Lal appellant. Me deposed that police arrested the appellant first thereafter his sons Panna Lal and Partap were
also taken into custody and were brought to police station. They were beaten up by the police. They were asked to pay a sum of Rs. 30,000/
failing which they were threatened to be involved in a murder case. He further deposed that his son Panna Lal and Partap came to the house and
took the money and paid the same to the police upon which they were released.
Parbat Singh D W is the brother of Omkar Singh appellant. He has deposed that Omkar Singh was arrested and brought to police station. He
was also summoned by the police and asked to pay a sum of Rs. 50,000 on which the police agreed to release him. He further deposed that he
and Sujan Singh arranged Rs. 30,000/each and paid to the police and has further deposed that police has not effected any recovery from his
house.
No doubt, DWs Sujan Singh and Parbat Singh and Parbat Singh have not been able to prove by documentary evidence that they were in
possession of Rs. 30,000/ each as we have noticed above that Makhan Laldeceased had collected only more than Rs. 50,000/ from different
shopkeepers as deposed by Charan Dass complainant and Makhan Laldeceased had got prepared a bank draft of Rupees 57,000/. Therefore,
the recovery of the looted money at the instance of the appellant is highly doubtful.
Learned trial court has committed a legal error while appreciating the evidence of the prosecution by observing that it is the duty of the defence
to rebut the prosecution evidence. It is not the duty of the defence to rebut the evidence of the prosecution rather it is the duty of the prosecution to
prove its case beyond shadow of reasonable doubts that the accused were the persons who have committed the crime and none else.
For the reasons mentioned above, we are of the opinion that the prosecution has failed to connect the appellants with the crime. Therefore, we
accept the appeal and acquit the appellants of the charge framed against them. They are on bail. They be discharged from bail bonds and surety
bonds. The Reference made by the trial court stands rejected.