State vs Khet Singh
2021 Latest Caselaw 11937 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                 D.B. Criminal Appeal No. 135/2020

Kalyan Singh S/o Sh. Lang Singh, Aged About 79 Years, R/o
Shiv, Tehsil Shiv, District Barmer (Raj.).
                                                                   ----Appellant
                                   Versus
1.     State of Rajasthan, Through P.P.
2.     Khet Singh S/o Sh. Kishan Singh, By Caste Rawana
       Rajput, Aged 31 years, R/o Shiv, Tehsil Shiv, District
       Barmer.
3.     Jeeya Khan S/o Amin Khan, By Caste Musalman, R/o
       Ambabari, Shiv, Tehsil Shiv, District Barmer.
                                                                ----Respondents
                             Connected With
            D.B. Crml Leave To Appeal No. 174/2020
State of Rasjsthan, Through P.P.
                                                                   ----Appellant
                                   Versus
1.     Khet Singh S/o Kishan Singh, Aged About 33 Years, By
       Caste Rana Rajput, R/o Ambabadi, P.s. Shiv, District
       Barmer.
2.     Jiya Khan S/o Amin Khan, Aged About 37 Years, By Caste
       Rana Musalman, R/o Ambabadi, P.s. Shiv, District Barmer.
                                                                ----Respondents


For Appellant(s)         :     Mr. Trilok Singh, Adv.
                               Mr. NS Bhati, PP
For Respondent(s)        :



          HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                Judgment

02/08/2021


BY THE COURT : (PER HON'BLE GARG, J)

Both instant appeals one i.e. Cr. Appeal No.135/2020 by the

complainant Kalyan Singh and the other i.e. Cr. Leave to Appeal

(2 of 7) [CRLAD-135/2020]

No.174/2020 by the State, have been preferred against the

common judgment dated 08.01.2020 passed by learned Special

Judge, SC/ST (Prevention of Atrocities Cases), District Barmer in

Session Case No.107/2018 (113/2014) titled as State Vs. Khet

Singh & Anr. whereby the learned Judge acquitted the accused-

respondents namely Khet Singh and Jeeya Khan from the charges

for offences under Sections 302, 201 IPC.

Brief facts of the case are that on 20.08.2014 the

complainant Kalyan Singh gave a written report before SHO, PS

Shiv, District Barmer inter-alia alleging therein that on 18.08.2014

when he was in Jodhpur, he received a telephonic call from his

family that his son Derawar Singh was missing from last two days.

Upon receiving the said information, the complainant returned to

his village and inquired about his son from the villagers and other

family members. Upon such inquiry, one Viram Singh informed

that his son Derawar Singh, accused Khet Singh and Jeeya Khan

had been seen going towards Sudasar Pond on Jeeya Khan's

tractor. On the said information, the complainant went to Sudasar

Pond where he found the dead body of his son. Thereafter

Bhagwan Singh, cousin brother of the complainant, informed the

Police. The complainant further alleged in the complaint that

earlier a quarrel had taken place between accused Khet Singh,

Jeeya Khan and his son Derawar Singh about a money matter and

therefore, to take revenge from his son, the accused respondents

took his son with them and killed him and thereafter threw his

dead body into the pond. On this complaint, the Police registered

the FIR No.128/2014 for offence under Sections 302, 201 IPC

against the accused-respondents and commenced investigation.

(3 of 7) [CRLAD-135/2020]

During the course of investigation, the accused-respondents

were arrested. After completion of investigation, the Police filed

charge-sheet against the accused-respondents for the aforesaid

offences.

Thereafter the case was committed before the Court of

Special Judge, SC/ST (Prevention of Atrocities) Cases, Barmer

where charges were framed against the accused-respondents.

They denied the charges and claimed trial.

In support of its case, the prosecution examined as many as

18 witnesses and also exhibited certain documents in evidence.

Thereafter statements of the accused-respondents were recorded

under Section 313 Cr.P.C. In defence, the accused-respondents did

not examine any witness, however three documents were

exhibited

After conclusion of the trial, the learned Special Judge,

SC/ST (Prevention of Atrocities) Cases, Barmer vide judgment

dated 08.01.2020 acquitted the accused-respondents for offence

under Sections 302 & 201 IPC. Hence, these two appeals against

the acquittal of the accused-respondents.

Learned counsel Shri Trilok Singh, representing the appellant

and Shri NS Bhati, learned Public Prosecutor have vehemently

submitted that the trial court has not properly appreciated the

evidence available on record while acquitting the accused-

respondents in this case. They submitted that the witness Viram

Singh (PW-9) specifically deposed that he saw deceased Derawar

Singh, accused Jeeya Khan and Khet Singh consuming liquor

together at Sudasar Pond, which constitutes evidence of last seen

together. The witness Manohar Singh (PW-4) also deposed that

deceased Derawar Singh and accused Jeeya Khan came to his

(4 of 7) [CRLAD-135/2020]

shop on a tractor for buying a water bottle. The statements of

these two witnesses clearly show the involvement of the accused

respondents in the alleged crime. Counsel further submitted that

the complainant specifically stated that earlier the accused-

respondents came to his house and quarreled with his son

Derawar Singh, thus this clearly shows that there was a motive for

the accused-respondents to kill his son Derawar Singh. Counsel

submitted that the trial court without considering these material

links of evidence, wrongly acquitted the accused-respondents.

We have considered the submissions advanced by the

counsels and perused the impugned judgment and the record.

The case at hand is based purely on circumstantial evidence

primarily in form of last seen together. Viram Singh (PW-9)

deposed on oath that on 18.08.2014 he only saw accused

respondents and deceased Derawar Singh consuming liquor at

Sudasar Pond and before that he saw deceased Derawar Singh

sitting on the tractor of accused Jeeya Khan. He further deposed

that he never informed this to anybody and after that he did not

know where the accused and deceased went. In his cross-

examination, he admitted that he did not give a report to the

Police about disappearance of deceased Derawar Singh and he

only informed this fact after two days to his uncle Kalyan Singh,

the complainant. He further admitted that he did not go near the

accused respondents and deceased when they were consuming

liquor. This witness also admitted the fact that after that, he did

not know where these three persons had gone.

On perusal of testimony of aforesaid witness Viram, it is

doubtful that he is the witness of last seen together and his story

also does not corroborate with any of the witnesses. More so,

(5 of 7) [CRLAD-135/2020]

despite having knowledge of deceased accompanying the accused-

respondents, this witness remained silent for two days and he had

no clue where the accused and deceased went. Thus this witness

cannot be considered to be a reliable witness.

So far as the statement of Manohar Singh (PW-4) is

concerned, though he deposed that accused Jeeya Khan and

deceased Derawar Singh came at his shop to buy a water bottle

but he never mentioned that on which date and time they came to

his shop to buy the water bottle. Thus his testimony cannot be

relevant to connect the accused-respondents with the alleged

crime.

So far as motive part is concerned, the same is completely

missing. A careful perusal of evidence available on record shows

that a vague allegation has been levelled by the complainant

Kalyan Singh that earlier the accused-persons came to his house

and they quarreled with his son, however no date and time was

mentioned by the complainant of this incident. Thus his testimony

is also not relevant to connect the accused respondents with the

alleged crime. Further the Investigating Officer also had not taken

any foot mould impression or finger prints from the place of

occurrence. Thus the aforesaid circumstances do not connect the

accused respondents with the alleged crime.

A thorough analysis of testimony of the witnesses shows that

accused respondents had been involved in the case merely on the

basis of suspicion. There was no connecting material on record to

establish the involvement of the respondents in the crime-in-

question.

Hon'ble Supreme Court in Allarakha K.Mansuri v. State of

Gujarat, 2002(1) RCR (Criminal) 748, has held that where, in

(6 of 7) [CRLAD-135/2020]

a case, two views are possible, the one which favours the accused,

has to be adopted by the Court.

Similarly, in Mrinal Das & others v. The State of Tripura,

2011 (9) Supreme Court Cases 479, the Hon'ble Supreme

Court, after looking into various judgments, has laid down

parameters, in which interference can be made in a judgment of

acquittal, by observing as under:

"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"

(7 of 7) [CRLAD-135/2020]

In the facts and circumstances of the present case, we are of

the opinion that the learned trial Court had rightly ordered the

acquittal of the respondents and the impugned judgment calls for

no interference.

Both the appeals are hereby dismissed.

                                   (MANOJ KUMAR GARG),J                                  (SANDEEP MEHTA),J
                                    49-50 MS/-









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