Bhoop Ram vs State
2022 Latest Caselaw 12652 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
            D.B. Criminal Appeal No. 487/1989

Bhoop Ram S/o Devi Lal By Caste Jat, R/o Vilage Munde, P.S.
Hanumangarh Town, District Sri Ganganagar
                                                ----Appellant
                           Versus
State Of Rajasthan
                                             ----Respondent


For Appellant(s)         :     Mr. Jagdish Vishnoi
For Respondent(s)        :     Mr. R.R. Chhaparwal
                               Mr. Pritam Solanki



          HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MR. JUSTICE FARJAND ALI

                                Judgment

JUDGMENT RESERVED ON                      :::          22.09.2022

JUDGMENT PRONOUNCED ON :::                             21.10.2022

BY THE COURT : (Per Hon'ble Farjand Ali, J.)

The appellant Bhoop Ram has been convicted and sentenced

as below vide the impugned judgment dated 11.12.1989 passed

by learned Additional Sessions Judge, Hanumangarh in Sessions

Case No.63/1986.

Offence for which Sentence awarded convicted Section 302 IPC Life imprisonment alongwith a fine of Rs.200/- and in default of payment of fine, further to undergo rigorous imprisonment of two months.

Section 201 IPC     Two years' rigorous imprisonment alongwith
                    a fine of Rs.200/-       and in default of
                    payment of fine, further to undergo
                    rigorous imprisonment of two months.
Both the sentences were to run concurrently.





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     Being   aggrieved     of    his    conviction        and   the   sentences

awarded to him, the appellant has preferred the instant appeal

under Section 374(2) of Cr.P.C.

Brief facts relevant and essential for disposal of the instant

appeal are that on 16.08.1986, Bheem Singh (P.W.10), SHO,

Police Station Hanumangarh Town was on patrolling duty along

with other constables of the police station. At about 7:30 p.m.,

when they reached at Village Munde, he noticed that some people

had gathered near the wine shop. Upon inquiry, they disclosed

that Villa which was situated near the wine shop was reeking and

some blood was also splattered over there. After this, Nathu Ram

called Carpenter Heera Lal, who broke the lock of the Villa and a

dead body was found lying on the floor which was discoloured and

full of foul smell. Constable Rajendra identified the dead body to

be of one Gopi Ram Jat, R/o Village Munde, who was working as

salesman at the wine shop. Sharp edged injuries were noticed on

the face of the deceased which gave rise to the assumption that

Gopi Ram had been murdered by an unknown person on the

intervening night of 14-15 August, 1986 and after commission of

murder, his dead body was placed in the Villa.

On the basis of the above, an FIR No.155/1986 (Ex.P/4)

came to be registered at the Police Station Hanumangarh Town,

District Sri Ganganagar and investigation commenced. Accused-

appellant Bhoop Ram was arrested on 31.08.1986 and after

conclusion of investigation, a charge-sheet was filed against him in

the Court of the Magistrate concerned for the offences under

Sections 302 and 201 of the IPC. As the offences under Sections

(3 of 15) [CRLA-487/1989]

302 & 201 IPC were exclusively triable by the court of Sessions,

the case was committed to the Court of Sessions Judge, Sri

Ganganagar from where it was transferred to the Court of

Additional Sessions Judge No.2, Hanumangarh for trial. The trial

court framed charges against the accused for the above

mentioned offences. The accused pleaded not guilty and claimed

trial. The prosecution examined as many as 11 witnesses and

exhibited 27 documents to prove its case. The accused was

questioned under Section 313 CrPC and was confronted with the

circumstances appearing against him in the prosecution evidence.

He denied the same and claimed to be innocent. Only one

witness was examined in defence and some documents were

tendered into evidence. After hearing the arguments advanced by

the Public Prosecutor and the defence counsel and appreciating

the evidence available on record, the learned trial court proceeded

to convict and sentence the accused-appellant as above. Hence,

this appeal.

Mr. Jagdish Vishnoi, learned counsel representing the

appellant, vehemently and fervently submitted that the entire

case of the prosecution is false and fabricated. The FIR was lodged

after an undue delay of two days and there is no tangible

explanation for causing delay in lodging of the FIR. He submitted

that the eye-witness account of the incident is not available on

record and the circumstances put forth against the appellant are

neither definite in tendency nor conclusive in nature. There was no

motive for the appellant to commit the murder of Gopi Ram. He

further submitted that recoveries of 'Gandasi' (Ex.P/9) and blood

(4 of 15) [CRLA-487/1989]

smeared clothes (Ex.P/10) were nothing but a farce and the

testimonies of Lachhi Ram (P.W.-6) and Sahi Ram (P.W.-7)

regarding the extra judicial confession made by the appellant

before them are not credible pieces of evidence. He further

asserted that the proseuction evidence particularly the

confessional statement of the appellant and the depositions of

witnesses particularly, the testimony of P.W.-9 Om Prakash are not

worth relying upon since the same cannot convince conscience of

any mind of common prudence that the murder was committed by

the accused-appellant. He further urged that all the three

witnesses namely Lachhi Ram P.W. 6, Sahi Ram P.W. 7 and Om

Prakash P.W. 9 were relatives of Gopi Ram (deceased) and thus,

they are partisan witnesses; therefore, there is no justification to

base conviction of the accused on the tainted evidence of the

aforesaid witnesses.

On these grounds, Mr.Vishnoi urged that the finding of

conviction recorded by the learned trial Court emerged from

inappropriate appreciation of evidence and is based on

assumptions which do not find roots in the evidence; hence, the

same cannot be sustained. He implored the court to accept the

appeal and acquit the accused-appellant of the charges.

Per contra, learned Public Prosecutor vehemently and

ardently opposed the submissions made by learned counsel for the

appellant. He submitted that there is ample evidence on record to

substantiate the charges against the appellant and there is no

cogent and plausible reason to disbelieve the evidence of Lachhi

Ram (P.W.-6), Sahi Ram (P.W.-7) and Om Prakash (P.W.-9) before

(5 of 15) [CRLA-487/1989]

whom the accused-appellant made voluntary confession regarding

commission of the alleged crime. He, thus, submitted that no

interference whatsoever is called for in the impugned judgment

whereby the appellant has been convicted and sentenced as

above.

We have given thoughtful consideration to the submissions

advanced by the learned counsel for the parties, have gone

through the impugned judgment and have minutely re-

appreciated the evidence available on record.

Indisputably, there is no eye-witness of the incident of

murder and the entire case of the prosecution is based upon

circumstantial evidence. In a catena of decisions, the Hon'ble

Supreme Court has laid down the law that in a case solely based

upon circumstantial evidence, every circumstance, individually or

in isolation, must be proved beyond every shadow of reasonable

doubt and if circumstances are taken cumulatively, the only

possible inference should be the guilt of the accused to the

exclusion of everything else. The circumstantial evidence should

be like a spider's web leaving no exit for the accused to slip away.

In the celebrated judgment passed in Criminal Appeal

No.195/1960 titled as K.M. Nanavati Vs. State of Maharashtra

reported in AIR 1962 SC 605 Justice K.Subbarao while observing

the misdirections instituted by the Sessions Judge in that case,

restated his words which were as follows:-

"It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider

(6 of 15) [CRLA-487/1989]

the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case."

Before proceeding further, we would deem it appropriate to

discuss the theory of circumstantial evidence for which cardinal

principles have been propounded by Hon'ble the Supreme Court

through deliverance of plethora of judicial pronouncements.

Circumstantial evidence means the evidence which is not drawn

from direct observation of a fact in issue but it is inferred from the

relevant facts. In other words, it can be said that when there is

no direct evidence in respect of principal fact but certain

circumstances are there which though not a fact in issue, but are

relevant to the fact in issue i.e., the principal fact and from the

establishment of all such circumstantial evidence, a safe inference

of principal fact can be inferred or presumed; that is why it is

termed as an 'Inferential Evidence'. Circumstantial evidence is

indirect information or secondary facts that allow a reasonable

inference of the principal fact, without actually proving the

principal fact. Although there cannot be a strait jacket formula for

appreciation of circumstantial evidence but the Court has laid

down certain tests which must be followed while convicting a

person on the basis of circumstantial evidence through a slew of

judgments. The tests are as follows:-

1.Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

2.Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

(7 of 15) [CRLA-487/1989]

3. The circumstances, if 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; &

4. 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 but should be inconsistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.

The above principles were initially propounded in the case of

Hanumant Govind Nargundkar Vs. State of M.P. reported in

AIR 1952 SC 343 which has been consistently followed in later

judgments till date. Keeping in mind the principles of appreciation

of circumstantial evidence, we now proceed to scrutinize the

circumstances put forth by the prosecution and the evidence

brought on record against the accused-appellant.

In the first facet, it was alleged that the accused was having

a motive to commit murder of Gopi Ram for which a witness

Gangajal was examined as P.W. 11 who stated that there was a rift

between the accused and the deceased regarding monetary

dispute. An endeavor was made to prove that the accused was

involved in illegal sale of liquor and on a previous occasion, he was

arrested on a complaint made by Gopi Ram, therefore, the

accused was holding a grudge against the deceased. It may be

noted that documents pertaining to the said case were not proved

by the prosecution. No substantial evidence was brought on record

that appellant and deceased had any dispute between them

except a bald and vague allegation made by this witness. While

(8 of 15) [CRLA-487/1989]

passing the impugned judgment, the learned trial Court observed

that even if the accused-appellant was arrested in connection with

sale of illicit liquor earlier, that cannot be taken as an immediate

cause which may precipitate the accused to take such an extreme

step of committing the murder of Gopi Ram. Suffice it to say, the

prosecution utterly failed to establish the factum of appellant

having motive to commit murder of Gopi Ram.

The next circumstance upon which heavy reliance has been

placed by the learned trial Court is the evidence of extra judicial

confession allegedly made by the accused-appellant before Lachhi

Ram P.W. 6 and Sahi Ram P.W.7. Confessions can be divided into

two classes i.e., Judicial and Extra judicial confessions.

Judicial confessions are those which are made before a

Magistrate or Court of law during the course of a judicial

proceeding. Extra-judicial confessions are made by a party

elsewhere than before a Magistrate or Court of law. The position of

law on extra judicial confessions is clear that no confession can be

used against an accused unless the Court is satisfied that it was

made voluntarily and that it is true. If the facts and

circumstances surrounding the making of a confession appear to

cast a doubt upon the veracity or voluntariness of the confession,

the Court may refuse to act upon the confession, even if it is

admissible in evidence. It is also observed in various judgments of

Hon'ble the Supreme Court that the evidence of extra judicial

confession is a weak type of evidence. It depends on the nature of

the circumstances, the time when the confession was made and

the credibility of the witnesses before whom the confession was

(9 of 15) [CRLA-487/1989]

made. This is a rule of common prudence which is observed that

the accused will make a confession before a person whom he

trusts and from whom he has ray of hope of deriving some help

and the accused will not confess his crime before a witness who is

neither his friend nor relative and nor a public authority. He will

also not make a disclosure or a confessional statement before a

person who is inimical to him. The credibility of the witness who

claims that a confession was made before him/her/them is to be

scrutinized very cautiously. It has to be seen that the confession

uttered from the mouth of witness is unbiased and not even

remotely inimical to the accused and the witness is one against

whom no dispute is raised which may tend to indicate that he may

have a motive for attributing an untruthful statement to the

accused.

Deliberate and voluntary confessions of guilt, if clearly

proved, are among the most effectual proofs in law. But, at the

same time, no portion of evidence has invited so much careful

scrutiny as the law of confessions. When it comes to extra-judicial

confession, two questions arise: is it voluntary, and, if so, is it

true? When the Court is satisfied that the extra-judicial confession

is both voluntary and true, it can be accepted as sound evidence.

Lacchi Ram and Sahi Ram were examined as P.W. 6 and P.W.

7 respectively by the prosecution to establish the fact that the

accused allegedly made confessional statement before these

witnesses. It is an admitted position that both these witnesses

were neither relative nor friend of the accused and that they were

not a public authority. On the contrary, both these witnesses are

(10 of 15) [CRLA-487/1989]

near relatives of the deceased. The manner in which they narrated

the story does not inspire confidence in the fact that the appellant

made the extra judicial confession before them. Both stated that

on the fateful day of incident when they were sitting in the house

of Sahi Ram at Village Bhabhuwali, the accused came there

seemingly puzzled at that time and blurted out before these

witnesses that he had lent money to Gopi Ram and when Gopi

Ram refused to return the amount, he killed him (Gopi Ram) using

a gandasi.

From bare perusal of the statements of these witnesses, it is

reflecting that the accused had made the alleged disclosure before

these witnesses after allegedly killing Gopi Ram while it is

revealing from the record that the dead body of Gopi Ram was

recovered from the Villa on 16.08.1986 only when the foul smell

effusing from the Villa attracted the attention of people. When the

Villa was opened, a dead body was found lying on the floor.

Deceased Gopi Ram was missing from 14.08.1986 and strangely,

Lacchi Ram P.W. 6 and Sahi Ram P.W. 7 admitted that the factum

of the alleged confession was never disclosed by them to anyone

despite the fact that they were close relatives of the deceased

Gopi Ram and had knowledge of his murder. The FIR was lodged

at the behest of Bheem Singh, SHO, Police Station Hanumangarh

and no report regarding missing of Gopi Ram was lodged by

anyone.

It is further revealed from the record that Lachhi Ram P.W. 6

and Sahi Ram P.W. 7 disclosed the fact of confession for the first

time on 23.08.1986. It is astonishing that they kept silent for a

(11 of 15) [CRLA-487/1989]

long time despite the fact that their near relative Gopi Ram whose

dead body was recovered on 16.08.1986 and was missing since

14.08.1986. The matter was under investigation still they did not

disclose this vital piece of information to anyone; not even to the

police. This unnatural conduct of Lachhi Ram P.W.6 and Sahi Ram

P.W. 7 creates doubt over their credibility and thus, placing

reliance on their statements would not be justifiable.

Om Prakash was examined as P.W.9 and stated in his

evidence that on the fateful day of incident, at around 12:00-

12:30 a.m., he and the accused were going to watch Ramleela at

Village Haripura. While returning back from Haripura, when they

reached near the liquor shop at Munde, he left the company of the

accused and went to his home alone by cycle. He stated that the

accused was having a gandasi in his hand at that time. This

witness has been stated to be a close relative of Gopi Ram as he

(Gopi Ram) was his maternal uncle. It is quite unnatural that the

accused took gandasi with him when he went to watch Ramleela in

Village Haripura along with this witness and while returning back,

the accused halted near the wine shop holding a gandasi with him.

Surprisingly, the witness did not tell this fact to anyone and his

statement under Section 161 of the Cr.P.C. was recorded much

after lodging of the FIR. He seems to be a tailor made witness.

Now, another aspect that needs to be noticed is the

recovery of gandasi (EX.P/) allegedly effected at the instance of

accused-appellant. The recovery memo Ex.P/9 reveals that it was

prepared on 02.09.1986 and the gandasi was said to be recovered

from the dwelling house of the accused-appellant. The Motbir

(12 of 15) [CRLA-487/1989]

witnesses Dayalaram and Khayaliram whose presence memo Ex.P/

9 was prepared were not the residents of Village Munde. They

were called from a distinct Village Bhadwa, Police Station

Hanumangarh Town. Dayalaram P.W.-11 happens to be a sibling of

deceased Gopi Ram and witness Khayaliram P.W. 8 was a relative

of the deceased. There is no satisfactory explanation given as to

why independent witnesses were not called from the same locality

from where the alleged recovery of gandasi was effected. P.W. 8

Khayali Ram replied in his cross-examination that when he

reached with the police team at the residence of the accused-

appellant, the house was bolted and the key of the same was with

the accused. The accused-appellant was arrested on 31.08.1986

vide Arrest Memo Ex.P/23. The delayed time gap between the

arrest and the alleged recovery of gandasi further creates strong

suspicion on the case of prosecution.

On perusal of the Arrest Memo (Ex.P/23), it was revealed

that nothing except the clothes that he was wearing at that time

was recovered from the possession of the accused-appellant when

he was apprehended and arrest memo was prepared. Thus, the

statement of the witness Khayali Ram (P.W.8) that when he,

along with the police team, reached the place of recovery, the

house was bolted and the key was with the accused seems to be

highly dubious.

FSL report (Ex.P/27) revealed that no blood could be

detected from Article marked '13' (Gandasi); thus, the recovery

of gandasi does not help the case of prosecution in establishing

the facutm of murder against accused-appellant. Similar is the

(13 of 15) [CRLA-487/1989]

situation of recovery of blood smeared clothes of the accused-

appellant which were exhibited vide Memo Ex.P/10. Interestingly,

the independent witnesses Khayali Ram P.W.8 and Sahi Ram P.W.9

were the same witnesses who attested Memo Ex.P/9 i.e. recovery

of gandasi. The gandasi and the clothes were recovered from the

same place, as mentioned above. A serious doubt has been cast

upon the presence of these motbir witnesses as they were

relatives of the deceased Gopi Ram and thus, they were partisan

witnesses. They seem to be omnipresent witnesses which means

that wherever any incriminating memo was prepared, these two

persons were made the 'Motbirs' to the memo. It is beyond

understanding as per common prudence that the accused would

keep the blood smeared clothes preserved for 17 long days which

may be taken as incriminating evidence against him. As noticed

above, the incident occurred during the intervening night 14-

15.08.1986 and the alleged recovery of blood smeared clothes

was effected on 02.09.1986. No independent evidence has been

brought on record to establish the fact that the clothes belonged

to the accused and none-else. The prosecution has also relied

upon the recovery of a key and a ledger book, two passbooks

Ex.P/11, Rs.650/- found in a box from the house of the accused

vide Memo Ex.P/12 and three keys & two locks vide Memo

Ex.P/13. It is not understandable how the recoveries of passbook,

Rs.650, 3 keys and 2 locks directly connect the accused with the

alleged crime. No other evidence has been produced bringing in

motive of the accused to commit murder of the deceased. After

careful scanning of the record, this Court is of the considered view

that the prosecution has failed to produce sufficient evidence to

(14 of 15) [CRLA-487/1989]

establish the fact of motive of the accused to commit murder of

the deceased.

The purported evidence of the prosecution with regard to

extra judicial confession; testimony of Om Prakash P.W.9 as to the

fact of leaving the company of the accused near the crime scene

at the relevant time; recovery of gandasi; recoveries of blood

smeared clothes of the accused; three keys; passbook and locks

are not sufficient enough to bring home the guilt of the accused

and thus, basing conviction on the evidence mentioned above

would be highly unsafe.

It is settled preposition of law that there is a long inevitable

distance to travel between `may be true' and `must be true'

which must be covered through solid and unimpeachable

evidence. Before condemning an accused as a convict, the

evidence produced by the prosecution needs to be proved beyond

reasonable doubt and the courts should tread cautiously on the

path covering the distance between conjectures and sure

conclusions without getting lost in the mists of unfounded

allegations and vague evidence. Graver the offence, greater

should be the standard of proof. To fasten liability of an accused

for the offence of murder where life imprisonment and death are

the punishments, great caution is required to be adopted. It

seems that the learned trial Court has based its conviction on

conjectures and surmises. Suspicion, however grave it may be,

cannot take the place of proof.

In view of the categoric findings referred to supra, we are of

the view that the prosecution has failed to prove even a single

(15 of 15) [CRLA-487/1989]

incriminating circumstance against the appellant so as to sustain

his conviction as recorded by the trial court. The impugned

judgment dated 11.12.1989 does not stand unerred under

scrutiny.

Accordingly, the instant appeal deserves to be allowed. The

impugned judgment dated 11.12.1989 passed by the learned

Additional Sessions Judge No.2, Hanumangarh in Sessions Case

No.63/1986 is set aside. The appellant is acquitted from the

charges under Sections 302 & 201 of the IPC. Accused-appellant

is on bail. His bail bonds are discharged.

However, keeping in view the provisions of Section 437-A

Cr.P.C., the appellant is directed to furnish a personal bond in the

sum of Rs.40,000/- 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 appellants shall appear before the Supreme Court.

Record be sent back forthwith.

                                   (FARJAND ALI),J                                        (SANDEEP MEHTA),J
                                    4-Mamta/-









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