Pancham Das @ Major Singh vs State Of Rajasthan

The accused appellant Pancham Das @ Major Singh stands convicted and sentenced as below vide judgment dated 22.09.2012 passed by the learned Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar in Sessions Case No.25/2009:

Offences

Sentences

Fine

Fine Default sentences

Under Section 302 IPC

Life Imprisonment

Rs.1,000/

One month's additional Rigorous Imprisonment

Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

Brief facts of the case are that the Parcha Bayan of one Shri Avtar Singh son of Shri Hari Singh was recorded by the SHO, Police Station Padampur at the burn unit of Government Hospital, Sri Ganganagar on 30.08.2009 at 07.00 am. In such Parcha Bayan, Shri Avtar Singh stated that for the last two months, he was engaged as the Pathi of the Gurudwara by the villagers of Village Ghuddhuwala. The position of Pathi was lying vacant for the previous one and half months. He would go to the Gurudwara from his house at Sri Ganganagar every evening at about 6 o' clock and returned home at about 8-9 o' clock. On the previous day, some religious programme was scheduled in the Gurudwara of Village 2 N.N. Accordingly, he went to the Village 2 N.N. with the villagers of Ghuddhuwala. He came back late to Ghuddhuwala and went to sleep at the Gurudwara. In the night at about 01.45 am. And, while he was fast asleep, he felt that somebody was pouring some corrosive substance on him. He felt a severe burning sensation on his face and neck on which, he woke up. He washed his face with water whereupon, the drops fell down on his abdomen where also, he felt burning sensation. He raised a hue and cry and ran towards the house of the Pradhan Shri Balraj Singh on foot. He had travelled a little distance when Balraj Singh and other people from the neighbouring houses came around. They took him to Sri Gangangar in a jeep for treatment. He stated that he was desirous of continuing as the Pathi in the Gurudwara of Ghuddhuwala but suspected that some villagers were opposed to him. However, he categorically expressed that he had no enmity towards anyone in the village and that he could not see the assailant because he was in the stupor of sleep. On the basis of this Parcha Bayan, a formal FIR No.101/2009 was registered at the Police Station Padampur for the offences under Sections 326 and 307 IPC and investigation commenced.

Shri Avtar Singh passed away while undergoing treatment whereupon, offence under Section 302 IPC read with Section 120B IPC was added to the case. During the course of investigation, some of the villagers, expressed a suspicion that prior to the appointment of Shri Avtar Singh as the Pathi of the Gurudwara, Shri Pancham Das was working on the said position. However, Pancham Das was replaced by Avtar Singh and he might be bearing an ill-will against Avtar Singh and could have perpetrated the assault because of such enmity. Based on this perception, the appellant herein was arrested on 30.08.2009 and the clothes worn by him, which were allegedly having visible signs of acid burns, were seized. During the course of investigation, the I.O. recorded the information of the accused appellant under Section 27 of the Evidence Act (Ex.P/30) and in furtherance thereof, recovered a steel jug (Ex.P/6) which was allegedly used for carrying the acid from the house of Mitthu Singh Jat Sikh to the place of incident. In furtherance of another information provided by the accused under Section 27 of the Evidence Act (Ex.P/31), the I.O. proceeded to recover a bottle of acid (Ex.P/8) from the house of Kuldeep Singh. The co-accused Mitthu Singh was arrested on 01.09.2009. The I.O. claims to have collected the foot moulds of the suspect from the place of occurrence on 30.08.2009 vide seizure memo (Ex.P/3). After arrest of the accused appellant, the I.O. collected his specimen foot moulds vide seizure memo (Ex.P/25) dated 02.09.2009. The suspected as well as the specimen foot moulds were forwarded to the FSL from where a report (Ex.P/46) was received that both matched with each other. The pillow cover seized from the place of the occurrence and the articles seized at the instance of the accused were forwarded to the FSL from where, a report (Ex.P/46) was received indicating presence of sulfuric acid on each of the articles received for analysis. After concluding investigation, a charge-sheet came to be filed against the accused appellant Pancham Das for the offences under Sections 120B and 302 IPC and against the co-accused Mitthu Singh for the offences under Sections 120B and Section 302 read with Section 120B IPC.

Since the offences were exclusively Sessions triable, the case was committed for trial to the court of Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar. The trial court framed charges against the accused appellant and the co-accused Mitthu Singh in the above terms. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses and 46 documents were exhibited in support of its case. The accused, in his statement under Section 313 Cr.P.C., denied the prosecution case and claimed to have been falsely implicated owing to party politics. However, no evidence was led in defence.

After hearing the arguments advanced by the defence counsel and the Public Prosecutor and upon appreciating the evidence available on record, the learned Trial Judge, proceeded to acquit the co-accused Mitthu Singh and convicted the accused appellant as above by the impugned judgment dated 22.09.2012 which is assailed in the instant appeal.

The appeal was preferred from jail on 01.02.2019. Noting the absence of the initially appointed Legal Aid Counsel, we appointed Shri Jayant Joshi, Advocate to plead the matter on behalf of the appellant. Shri Joshi vehemently and fervently urged that theory of enmity projected by the prosecution as being one of the circumstances pointing towards the guilt of the accused is totally false, fabricated and self-contradictory. He referred to the statements of PW-1 Balraj Singh, PW-2 Balkar Singh, PW-3 Chand Singh, PW-5 Kuldeep Singh, PW-6 Harnarain Singh, PW-7 Rajveer Singh, PW-8 Jasveer Singh, PW-9 Arjun Singh, PW-11 Bachanjeet Singh and urged that none of these witnesses gave evidence worth any degree of satisfaction that the accused bore any animosity against the deceased which could have led him to indulge in the alleged offence of throwing acid on the deceased. The deceased himself did not portray any such animosity in his Parcha Bayan. He further submitted that the circumstance of matching foot moulds on which, much reliance was placed by the prosecution, also pales into insignificance because firstly, the presence of foot moulds of the appellant in the Gurudwara is absolutely natural because he was admittedly a frequent visitor to the Gurudwara. Secondly, he urged that no sanctity can be attached to the procedure whereby, the specimen foot moulds of the accused were collected because no independent witnesses were associated in these proceedings; the foot moulds were not collected in the presence of a Magistrate and no site plan was prepared of the place from where the specimens were allegedly lifted and prepared. He further submits that the third circumstance upon which the prosecution relies upon, is that of the recovery of the clothes of the accused bearing acid burns; the jug in which the acid was allegedly carried by the accused to the Gurudwara and the bottle of the acid which was allegedly used to assault the deceased. He contended that ex-facie, the recoveries are unbelievable because it is impossible to believe that the accused would continue to wear the acid stained clothes despite having opportunity to destroy them. He further submits that the jug and the bottle of the acid were recovered from the houses of Mitthu Singh and Kuldeep Singh and that in absence of any independent circumstance pointing towards the guilt of the accused, the sole circumstance of recovery of the Jug and the Acid bottle would not be sufficient to link the accused with murder of Shri Avtar Singh. He thus craves acceptance of the appeal while setting aside the impugned judgment and seeks acquittal of the appellant.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Jayant Joshi and urged that the material prosecution witnesses have given cogent and clinching evidence to the effect that the accused was removed from the post of Pathi and the deceased Avtar Singh was appointed in his place. Thus, as per the learned Public Prosecutor, the accused who was bearing a grudge on account of his removal as a Pathi, had strong motive to kill the deceased Avtar Singh. He further urged that recovery of the acid stained jug and the bottle of acid coupled with the fact that the clothes worn by the accused, which were recovered on 30.08.2009, were bearing marks of acid burns is also a strong circumstance pointing towards his guilt. He thus contended that these three circumstances when considered in cohesion, invariably and conclusively point towards the guilt of the accused and hence, as per him, the impugned judgment does not warrant any interference whatsoever and the appeal is liable to be dismissed.

We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have threadbare, re-appreciated the evidence available on record.

The deceased himself in his Parcha Bayan did not express any kind of suspicion on any person for the acid assault made on him. The witness Balraj Singh (PW-1) stated that some minor differences existed between Pancham Das and Avtar Singh. He did not support the recovery of the apparels of the accused, the steel jug and the bottle of acid. Balkar Singh (PW-2) in his evidence, candidly admitted that Avtar Singh had no issues with anyone but the dispute existed interse between the previous Pathis Lal Singh and Pancham Das. Chand Singh (PW-3) also stated that Avtar Singh had no dispute with Pancham Das. PW-5 Kuldeep Singh also did not support the prosecution theory regarding inimical relations between the appellant and the deceased. Harnarain Singh (PW-6) stated that Pancham Das was removed from one Gurudwara and was engaged in another Gurudwara as a Pathi and Avtar Singh was kept in his place. In cross-examination, the witness admitted that Avtar Singh was brought by Pancham Das himself and in his absence, Pancham Das used to perform the duties of Pathi. Rajveer Singh (PW-7) admitted that Avtar Singh had no dispute with anyone in the village. Jasveer Singh (PW-8) stated that Avtar Singh had some issues with the previous Pathis Pancham Das and Lal Singh. However, in cross-examination, he admitted that he was stating so simply as a hearsay. Arjun Singh (PW-9) alleged that the dispute existed interse between the previous Pathis Ram Singh and Pancham Das. Thereafter, owing to the theft of a deck (loudspeaker), Lal Singh and Pancham Das levelled allegations against each other on which, both of them were removed and Avtar Singh was appointed as the Pathi. Bachanjeet Singh (PW-11) did not support the prosecution theory that Pancham Das was having any inimical relations with Avtar Singh. Manifestly thus, none of the prosecution witnesses examined for giving evidence of enmity between the accused appellant and the deceased, affirmed that any such dispute existed between the two which could have provided motive to the appellant for committing murder of the deceased. Once, the evidence of motive is eliminated, the other two circumstances which subsist against the appellant are those of the recovery of the foot moulds from the scene of the occurrence which were matching with the specimen foot moulds of the accused and the recovery of acid stained articles.

Regarding the foot moulds evidence, the following documents need to be examined. Ex.P/3 is the seizure memo of the foot moulds of suspect which was prepared by the I.O. on 30.08.2009. Significantly enough, the seizure memo does not reflect that the foot moulds were being collected from a Gurudwara. Inder Lal (PW-15), the Constable of the S.P. Office, who prepared the foot mould casts, also did not state in his evidence that he collected the foot moulds from the Gurudwara. In cross-examination, he admitted that he picked up the foot moulds from a kuchcha house. Thus, without any doubt, there is no such evidence which can satisfy the Court that the suspected foot moulds were lifted from the Gurudwara where the acid attack was perpetrated. The I.O. admittedly did not prepare any site inspection plan corresponding to the preparation of the suspect's foot mold impressions. The specimen foot moulds of the accused were collected vide seizure memo (Ex.P/25). Not even a single independent witness was associated in these proceedings. Furthermore, the foot moulds were not collected in the presence of the Magistrate as is mandated by the Identification of Prisoners Act. Thus, the FSL report pertaining to the foot moulds pales into insignificance. So far as the recoveries of the acid stained clothes of the accused; the steel jug and the bottle of acid are concerned, mere possession of these articles cannot be construed to be incriminating evidence and these recoveries in isolation cannot form a ground to even remotely accept that the accused appellant threw the acid on the deceased. In this regard, it may also be noted that the prosecution tried to portray that some of the pieces of clothes recovered from the scene of occurrence were also forwarded to the FSL for seeking identification of the corrosive substance. The prosecution proved two separate FSL Reports (Ex.45 and Ex.P/46). The first FSL Report (Ex.P/45) pertains to the pillow covers recovered from the scene of the occurrence and thus, would not be relevant for considering the case of the accused. The second FSL Report (Ex.P/46) mentions that five packets marked 'A, B, C, D and E' were received at FSL. The packet mark 'A' purportedly contained a burnt cloth piece in a small size glass jar and it is claimed that the said cloth piece was a part of the clothes worn by the deceased. The packet mark 'C' contained pieces of shirt and dhoti of the accused. The packet mark 'D' contained the steel jug and the packet mark 'E' contained a medium size glass bottle. The packets mark 'A, C, D and E' allegedly gave positive test for presence of acid. The FSL report is silent as to the test conducted on the packet mark 'B'. Furthermore, a perusal of the forwarding letter (Ex.P/20) by which, the articles were forwarded to the FSL does not disclose that any glass jar containing the piece of fabric was being forwarded to the FSL as the mode of packaging is not mentioned in this forwarding letter. Thus, it is indeed a matter of surprise as to how the piece of cloth in a jar came to be received at the FSL. In this background, we are of the opinion that since the proceedings of forwarding the articles to the FSL are shrouded in a cloud of doubt, the FSL would not have any impact on the guilt of the accused.

In backdrop of the above discussion, we feel that the prosecution failed to lead convincing, cogent and clinching evidence regarding the links of incriminating circumstances required to form a complete chain of circumstances for conclusively establishing guilt of the accused beyond all manner of doubt.

In this background, we are of the firm opinion that the learned Trial Judge committed grave error in facts as well as in law while appreciating the evidence available on record and holding that the circumstances pointed to the guilt of the accused beyond all manner of doubt.

As an upshot of the above conclusion, the appeal is allowed. The impugned judgment dated 22.09.2012 passed by the learned Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar in Sessions Case No.25/2009 is hereby quashed and set aside. The appellant Pancham Das @ Major Singh is acquitted of the charges. The appellant is in custody. He shall be released from prison forthwith if not wanted in any other case.

However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.