Rajasthan High Court

Vir Singh S/O Shri Dev Karan Ahir vs State Of Rajasthan on 5 January, 2023

Bench: Pankaj Bhandari, Birendra Kumar

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
               BENCH AT JAIPUR

                D.B. Criminal Appeal No. 364/2018

1.     Mamta W/o Virendra Yadav, R/o Sehlang, Police Station
       Kanina, Distt. Mahendragarh (Haryana).
2.     Sonu S/o Ram Kishan Yadav, R/o Khaleta, Police Station
       Khol, Distt. Rewari (Haryana).
3.     Monu S/o Ram Kishan Yadav, R/o Khaleta, Police Station
       Khol, Distt. Rewari (Haryana).
       (All at present lodged in the Central Jail, Alwar).
                                                                ----Appellants
                                  Versus
State Of Rajasthan, Through P.P.
                                                               ----Respondent

Connected With D.B. Criminal Appeal (Db) No. 363/2018

1. Vir Singh S/o Shri Dev Karan Ahir, R/o Village Mandha Majara, Police Station Tijara, Distt. Alwar (Raj.).

2. Rajendra S/o Shri Khem Ram Yadav, R/o Village Majari Kalan, Police Station Neemrana, Distt. Alwar (Raj.). (Accused appellants are in Distt. Jail, Alwar)

----Appellants Versus State Of Rajasthan, Through P.P.

----Respondent

For Appellant(s) : Mr. Ashvin Garg, Mr. S.S. Ola for Mr. Rajneesh Gupta in Criminal Appeal No.364/2018 and Mr. Dinesh Yadav in Criminal Appeal No.363/2018 For State : Mr. Javed Choudhary, Additional Government Advocate

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment

(2 of 11) [CRLAD-364/2018]

Reserved On : 03/01/2023 Pronounced On : 05/01/2023

1. Accused-appellants have preferred these criminal appeals

aggrieved by judgment and order dated 31.08.2018 passed by

learned Additional Sessions Judge No.2, Behror, District Alwar in

Sessions Case No.39/2012 (30/2012) (State of Rajasthan vs.

Rajendra & Ors.), whereby, accused-appellants have been

convicted for the offences under Sections 302 & 201 of Indian

Penal Code (for short 'I.P.C.') and for offence under Section 302

I.P.C. each one has been sentenced to undergo life imprisonment

and to pay fine of Rs.10,000/-, in default of payment of fine to

further undergo rigorous imprisonment for six months and for

offence under Section 201 I.P.C., each one has been sentenced to

undergo rigorous imprisonment for three years and to pay fine of

Rs.5,000/-, in default of payment of fine to further undergo

rigorous imprisonment for three months, both substantive

sentences to run concurrently.

2. It is contended by counsel for the accused-appellants that as

per First Information Report which was lodged after an inordinate

delay on 03.05.2012, the incident took place on 14.04.2012. It is

also contended that as per prosecution, there were two eye-

witnesses namely; Kishori Lal (PW/1) and Ashok Kumar (PW/2)

and they have turned hostile. It is further contended that except

for the evidence of eye-witnesses, there is no evidence on record

to sustain the judgment of conviction.

3. It is contended that as per the Forensic Science Laboratory

Report (for short 'FSL') (Ex.P-42), the deceased-Virendra was

intoxicated and the result of the FSL Report was found to be

(3 of 11) [CRLAD-364/2018]

positive for the presence of Ethyl Alcohol. It is also contended that

dead body of the deceased was recovered from an open well and

as per statement of the doctor, it was not in a condition where

someone could recognize the dead body. It is only on the basis of

photographs that the dead body is said to have been recognized.

It is further contended that as per post-mortem report which took

place on 20.04.2012, the death took place about 4-5 days prior to

the date of post-mortem on 15.04.2012 or 16.04.2012, whereas,

as per the prosecution story, the incident took place on

14.04.2012. It is also contended that injuries which were found on

the body of the deceased could have been caused due to falling in

the well as has been admitted by Dr. Amit Awasthi (PW/28).

4. It is contended that F.I.R. was lodged merely with the

intention to deprive the accused/appellant-Mamta of the property

rights. It is also contended that the learned Trial Court has

convicted the appellants on the basis of circumstantial evidence

when none of the circumstances point towards guilt of the

appellants.

5. Counsel for the accused-appellants have placed reliance on

"Ramesh Bhai & Anr. vs. State of Rajasthan" (Criminal Appeal

No.868-869/2004), decided by Hon'ble Apex Court on 24.04.2009.

6. Learned Additional Government Advocate appearing for the

respondent-State has opposed these Criminal Appeals. He has

supported the judgment of the learned Trial Court and has

contended that learned Trial Court has given reasons for

convicting the accused-appellants. It is also contended that on

14.04.2012, deceased-Virendra went to attend the marriage of his

brother-in-law at Village Khaleta, District Rewari, Haryana and did

not return from there. It is further contended that on the

(4 of 11) [CRLAD-364/2018]

information given by the accused, they have identified the place of

occurrence and at their behest, stick and towel which were used to

commit the offence were recovered.

7. We have considered the contentions and have perused the

evidence on record.

8. It is an admitted case that deceased went to his in-laws'

place at Village Khaleta, District Rewari, Haryana to attend the

marriage of his brother-in-law. From perusal of the statement, it is

revealed that Kishori Lal (PW/1) and Ashok Kumar (PW/2) were

presented as eye-witnesses who have turned hostile. Dr.

Shivnarayan (PW/3) and Dr. Amit Awasthi (PW/28), Members of

the Medical Board, who have conducted the post-mortem, have

stated that injuries which were sustained by the deceased could

have been caused due to fall in the well. Dr. Shivnarayan (PW/3)

has stated that cause of death was Asphyxia as a result of

strangulation. Mohanlal (PW/13) has stated that everyone in the

Barat was happy, wherein, deceased also danced in the marriage

and there was no dispute. In his cross-examination, he has

admitted that he has stated as per what he has heard, thus, this

witness at most can be said to be a hearsay witness. Satish

(PW/15) has also stated that on the basis of doubt he is stating

that relationship between deceased and his wife-Mamta, one of

the accused in this case, was not cordial. Rajesh Devi (PW/19) has

also admitted in her cross-examination that she is telling about

the murder of her brother on the basis of doubt. Vijaypal (PW/21)

has also stated that the relationship between deceased and the

accused-Mamta was not cordial and that is why they have doubt

that deceased was murdered. Sanjay (PW/22) has also stated that

(5 of 11) [CRLAD-364/2018]

since accused/appellant-Mamta was having illicit relations with

Sonu, therefore, he has doubt that deceased was murdered.

9. The other evidence which is adduced against the accused-

appellants is pointing to the place where deceased was thrown.

We are of the considered view that such evidence is not admissible

in evidence, as on the basis of information given by the accused

under Section 27 of the Indian Evidence Act, 1872, no fact was

discovered as the place where the dead body was recovered was

already in the knowledge of the police. The recovery of stick and

Scorpio also do not implicate the accused, as no blood stains have

been found on the stick and no incriminating material whatsoever

has been recovered from the Scorpio. None of the recovered

articles were established to be connected with the alleged crime.

It is also evident that there is no evidence that deceased was last

seen near the place of occurrence. In fact there is no chain

connected as such so as to come to the conclusion that on the

basis of circumstances produced before the Court, alleged offence

is made out against the appellants and learned Trial Court has

based the conviction only on the basis of recovery.

10. It is also an admitted position that deceased went to his in-

laws' place where he danced and there was no dispute whatsoever

at his in-laws' house. Learned Trial Court has erred in convicting

the accused-appellants on the basis of recovery of scorpio, stick

and towel, since, the eye-witnesses have turned hostile and

circumstances as of all do not point towards the guilt of the

accused.

11. The relevant Paragraph Nos.5, 6, 7, 8, 9, 11 & 12 of the

judgment passed by Hon'ble Apex Court in the case of "Ramesh

(6 of 11) [CRLAD-364/2018]

Bhai & Anr. vs. State of Rajasthan" (supra) are reproduced

hereasunder:-

5. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);

                Eradu       and      Ors.        v.     State       of
                Hyderabad          (AIR     1956        SC    316);

Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P.

(AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

(7 of 11) [CRLAD-364/2018]

6. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P.

(1996) 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

7. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) 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; and (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 and such evidence should not only be consistent with the guilt of the accused but

(8 of 11) [CRLAD-364/2018]

should be inconsistent with his innocence.

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

9. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

11. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC

343), wherein it was observed thus:

(9 of 11) [CRLAD-364/2018]

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

In other words, 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."

12. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

       The      circumstances     concerned
       `must' or `should' and not `may
       be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(10 of 11) [CRLAD-364/2018]

(3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

12. In the present case in hand, no chain is made out and there

are no circumstances from which inference of guilt can be drawn

against the accused-appellants. We are thus of the considered

view that learned Trial Court has erred in convicting the accused-

appellants for the offences under Sections 302 & 201 I.P.C.

13. These Criminal Appeals, therefore, deserve to be and are

accordingly allowed. The judgment of conviction dated 31.08.2018

under Sections 302 and 201 I.P.C. passed by learned Additional

Sessions Judge No.2, Behror, District Alwar in Sessions Case

No.39/2012 (30/2012), is quashed and set aside. The appellants

are acquitted of the charges levelled against them. The accused-

appellants-Vir Singh and Rajendra, in Criminal Appeal