Rajasthan High Court - Jodhpur

Bhimsen vs State Of Rajasthan on 28 May, 2024

Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit

[2024:RJ-JD:22912-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 209/1991

Bhimsen
                                                                      ----Appellant
                                       Versus
State Of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Ms. Shrestha Mathur, Amicus Curiae
For Respondent(s)            :     Mr. B.R. Bishnoi, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

Judgment

Reserved on 09/05/2024 Pronounced on 28/05/2024

1. This criminal appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused-appellant may be acquitted of all the charges levelled against him."

2. The matter pertains to an incident which occurred in the year

1989 and the present appeal has been pending since the year

1991.

3. The accused-appellants laid a challenge to the judgment of

conviction and order of sentence dated 30.05.1991 passed by the

learned Additional District & Sessions, Raisinghnagar, in Sessions

Case 48/89 (State of Rajasthan Vs. Bhimsen), whereby the

present accused-appellant has been convicted and sentenced as

below:

[2024:RJ-JD:22912-DB] (2 of 17) [CRLA-209/1991]

Offence under Sentence Fine Section 302 IPC Life imprisonment Rs.2000/-, in default of which, to undergo further one year R.I.

4. As the pleaded facts and the record would reveal, on

02.02.1989 at around 5:00 p.m., one Ramkaran (complainant)

submitted an information before Police Station, Gharsana, stating

that marriage of his daughter (Meera) was solemnized with

Bheemsen (accused-appellant) about two and a half years ago. It

was further stated that about 8-9 days ago (prior to the date of

information), the complainant's daughter and her husband

(accused-appellant) started living on the complainant's land i.e.

Chak No.2 K.M., and that, the complainant had also provided them

with a constructed house on the said land. The complainant's son

Onkar (PW.7) with his family was also residing near the place of

residence of the complainant's daughter.

4.1. The complainant also stated that on 02.02.1989 at around

9:00 a.m., his son and son-in-law (accused-appellant), came to

the place of the complainant at Chak No.9 G.D., and informed the

complainant that his daughter-Meera had left the previous night at

around 10:00-11:00 p.m. from Dhani, and further asked the

complainant whether Meera had visited him, whereupon the

complainant answered in the negative. Thereupon, the

complainant sent his wife-Badhu, one Budhram alongwith his

(complainant's) son Onkar and the son-in-law (accused-appellant)

[2024:RJ-JD:22912-DB] (3 of 17) [CRLA-209/1991]

to Chak No.2 K.M., in search of his daughter and also told the said

persons to make enquiry about Meera in the neighbourhood.

4.2. Thereafter, while the complainant himself and his another

son (Mahipal) got ready to leave the place to ascertain the

whereabouts of Meera, the complainant's son-in-law (Chaanan)

and Budhram arrived, and informed the complainant that a dead

body had been found floating in Diggi; thereupon, the complainant

immediately rushed towards the police station and stated that he

was not aware as to how his daughter Meera died by falling into

the Diggi, and on report, the same was taken by the police under

Section 174 Cr.P.C. (Ex.D-3).

5. On the next day, the complainant a written report (Ex.P-1),

whereupon, the police registered an FIR bearing FIR No.4/89 and

the investigation accordingly commenced thereafter. After

investigation, the police filed charge-sheet against the accused-

appellant for the offence under Section 302 IPC before the

competent court.

6. The learned Trial Court framed the charge against the

accused-appellant for the offence under Section 302 IPC; the said

charge were read over to the accused-appellant; the accused-

appellant denied the same, and sought due trial, and the trial

accordingly commenced thereafter before the learned Trial Court.

7. During the course of trial, the evidence of 12 prosecution

witnesses were recorded and 15 documents were exhibited on

behalf of the prosecution, whereafter, the accused-appellant was

examined under Section 313 Cr.P.C., in which the accused-

[2024:RJ-JD:22912-DB] (4 of 17) [CRLA-209/1991]

appellant pleaded innocence and his false implication in the

criminal case in question.

8. Thereafter, upon hearing the contentions of both the parties

as well as considering the material and evidence placed on record,

the learned Trial Court, convicted and sentenced the accused-

appellant, as above, vide the impugned judgment of conviction

and order of sentence dated 30.05.1991.

9. Learned counsel for the accused-appellant submitted that

there is no eye witness to the incident in question and the entire

prosecution story is based on circumstantial evidence, which could

not conclusively lead to substantiation of the fact that the

appellant had in fact caused murder of the Meera (deceased).

9.1. It was further submitted that there is also no independent

and/or public witness to the incident in question; though at the

place of incident in question, there were houses in the

neighbourhood, but none of the persons has been produced as

prosecution witness for examination before the learned Trial Court.

9.2. It was also submitted that the learned Trial Court relied on

the statements of the P.W.1 and PW.2, who had stated that the

accused-appellant made a confession that he committed the

murder of the deceased, which is clearly an extra judicial

confession of the accused-appellant; P.W.1 & P.W.2 are relatives of

the deceased, and therefore, the said extra judicial confession is a

weak piece of the evidence. In support of such submission,

learned counsel relied upon the judgment rendered by the Hon'ble

Apex Court in the case of Pawan Kumar Chourasia Vs State of

[2024:RJ-JD:22912-DB] (5 of 17) [CRLA-209/1991]

Bihar (Criminal Appeal No. 2230/2010, decided on

14.03.2023).

9.3. Learned counsel further submitted that the learned Trial Court

relied on the last seen theory for convicting the accused-appellant,

which is not applicable in present case, because the deceased left

her house at around 10 P.M. and the time of death has also not

been conclusively ascertained; the gap between the deceased

leaving her house and the time of her death are apparently

unexplained. In support of such submission, learned counsel relied

upon the judgment rendered by the Hon'ble Apex Court in the

case of R. Sreenivasa Vs State of Karnataka (Criminal

Appeal No. 859/2011, decided on 06.07.2023).

9.4. Learned counsel also submitted that at the time of inquest

report under Section 174 Cr.P.C given by Ramkaran (father of the

deceased) on 02.02.1989, he did not level any allegation against

the accused-appellant, but on the next day, he had submitted the

written report (EX.P/1), wherein he had stated that accused-

appellant caused the murder of the deceased, therefore, it create

doubt on prosecution story.

9.5. Learned counsel further submitted that as per the

prosecution story, the footprints of footwear of the accused-

appellant at the place of incident clearly shows that immediately

before the deceased disappeared, the accused-appellant was

looking for her, and that, the same became one of the basis for

conviction of the accused-appellant, but it is apparent on the face

of the record that no forensic examination was done in this regard

by the concerned police authority, and therefore, the said aspect

[2024:RJ-JD:22912-DB] (6 of 17) [CRLA-209/1991]

of the prosecution cannot be said to be a reliable and cogent piece

of evidence for convicting the accused-appellant.

9.6. It was also submitted that the lack of motive to commit the

crime in question is clearly discernible on the face of record,

because the prosecution story regarding the matrimonial discord

between the deceased and accused-appellant has not been

established, since at the time of death, the deceased was

undergoing four months' pregnancy. In support of such

submission, learned counsel relied upon the judgment rendered by

the Hon'ble Apex Court in the case of Nandu Singh Vs State of

Madhya Pradesh (Criminal Appeal No. 285/2022, decided on

25.02.2022).

9.7. It was further submitted that no injury was found on the

body of the deceased and the death was caused due to

strangulation by using cloth. It was also submitted that after

recovery of the said cloth, the same was not sent for any forensic

examination. Therefore, as per learned counsel, the learned Trial

Court failed to appreciate that the prosecution could not prove its

case, beyond all reasonable doubts, that the offence in question

was committed by the accused-appellant.

9.8. In support of such submissions, learned counsel relied upon

the judgments rendered by the Hon'ble Division Bench of the

Hon'ble High Court of Delhi in the case of State Vs Sohan Lal &

Ors (CRL.L.P. 63/2011, decided on 01.04.2011) and Ravi

Kumar @ Sonu Ors. Vs State (CRL.A. 444/2010, decided on

15.05.2013).

[2024:RJ-JD:22912-DB] (7 of 17) [CRLA-209/1991]

10. On the other hand, the learned Public Prosecutor, opposed

the aforesaid submissions made on behalf of the appellant, while

submitting that the entire case of the prosecution is based on

circumstantial evidence, and a perusal of the written report (Ex.P/

1) given by the Ramkaran (P.W.3) makes it amply clear that the

accused-appellant caused the murder of the deceased.

10.1. It was further submitted that the appellant made the extra

judicial confession before P.W.1- Brij Lal & PW.2-Om Prakash and

the said confession is sufficient to conclude that the murder of the

deceased was caused by the accused-appellant, due to relation of

the deceased outside her marriage. It was also submitted that the

footprints of the footwear of accused-appellant were found at the

time, when the body of the deceased was recovered from the

place of the incident in question.

10.2. It was further submitted that after arrest of the accused-

appellant, on his own information, cloth used to commit the crime

in question was recovered, and therefore, on that count also, the

entire chain of evidence is consistent and strong.

10.3. It was also submitted that the deceased, prior to her death,

informed the prosecution witnesses, namely, P.W. 5 & P.W.6 that

accused-appellant would kill her, and therefore, the conduct and

motive of the accused-appellant, falls under Section 8 of the

Indian Evidence Act, 1872. It was thus submitted that the learned

Trial Court had rightly convicted the accused-appellant under

Section 302 IPC.

11. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

[2024:RJ-JD:22912-DB] (8 of 17) [CRLA-209/1991]

12. This Court observes that the accused-appellant was

convicted for the offence punishable under Section 302 IPC by the

learned Trial Court vide the impugned judgment, and in the

present case, there was no eye witness to the incident in question,

and the entire prosecution case is based on the circumstantial

evidence.

13. This Court further observes that as per the statements of

P.W.3- Ramkaran (complainant-father of the deceased), Onkar

(PW.7) came, at the relevant time, and told him that the deceased

was not in her house i.e. missing; after some time, one Dhanaram

came and told the complainant that the deceased died and her

corpse was lying in the Diggi; whereupon he (the complainant)

submitted the written report, stating therein that the accused-

appellant caused the death of his daughter (deceased), and that,

prior to her death, the deceased told the complainant that she

would be killed by the accused-appellant.

13.1. This Court also observes that as per the written report

(Ex.P/1), P.W.3 did not state that his daughter (deceased) told him

that the accused-appellant would kill her, and PW.3 filed the

written report under Section 174 Cr.P.C. (Ex.D-3) but the same

was denied by him at a later stage. P.W.3 also stated that the

accused-appellant was not present, either at the time of

registration of the FIR nor on any other occasion, but PW.4-

Chanan stated that the accused-appellant also went to the police

station, and when the police authority reached the place of

incident, at that time as well, the accused-appellant was there.

[2024:RJ-JD:22912-DB] (9 of 17) [CRLA-209/1991]

Therefore, there are apparent contradictions in the depositions

made by the said two witnesses.

14. This Court further observes that P.W.1-Brij Lal and P.W.2 Om

Prakash stated about making of extra judicial confession before

them by the accused-appellant. P.W. 1 stated that the accused-

appellant came to his house and stated that he (accused-

appellant) killed the deceased, while she was sleeping, by put the

cloth on her face, and thereafter, the accused-appellant buried

her body into a pit. The said witness also stated that the accused-

appellant told him that he committed a mistake by doing such act,

and begged the said witness to save him (accused-appellant) from

the consequences of the said act; the said confession was directly

conveyed to the police authorities. P.W.2 also made similar

deposition.

14.1. This Court also observes that P.W.1 & P.W.2 stated that they

directly conveyed the said extra judicial confession of the accused-

appellant to the police, but P.W. 3 stated that PW.1 & 2 at the first

instance, informed the said witnesses about such confession of the

accused-appellant. Both the said witnesses are relatives of the

complainant (PW.3). This Court further observes that the said

extra judicial confession was recorded after a delay of one month,

and therefore, such deposition, in its entirety, rendered the same

as a weak piece of evidence, and on that count also, the accused-

appellant could not have been convicted only on the basis of the

same, in view of the precedent law laid down by the Hon'ble Apex

Court in the case of Moorthy Vs State of Tamil Nadu (Criminal

[2024:RJ-JD:22912-DB] (10 of 17) [CRLA-209/1991]

Appeal No. 975/2011, decided on 18.08.2023), relevant portion

whereof is reproduced as hereunder:

"6. Firstly, we will deal with the prosecution case about the extrajudicial confession. As regards extrajudicial confession, the law has been laid down by this Court in the case of Pawan Kumar Chourasia v. State of Bihar, 2023 SCC OnLine SC 259. In paragraph 5 it is held thus :

"5. As far as extrajudicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith.. . . . . "

10. Extrajudicial confession is always a weak piece of evidence and in this case, for the reasons which we have recorded earlier, there is serious doubt about the genuineness of the prosecution case regarding the extrajudicial confession. Therefore, the prosecution case about the extra judicial confession does not deserve acceptance."

15. This Court also observes that P.W.8- Dr. Satyaprakash and

P.W.9-Dr. Ishwarchand, who had conducted the postmortem of

body of the deceased, stated that the deceased died due to

suffocation, and also stated that apart therefrom, there is no

injury found on the body of the deceased. The said witnesses also

deposed that the accused-appellant identified the body of the

deceased; therefore, from the said deposition as well, it is clear

[2024:RJ-JD:22912-DB] (11 of 17) [CRLA-209/1991]

that the accused-appellant was present at all times, during the

whole process, following the death of the deceased. This Court

further observes that as per the prosecution story, at the place of

incident, dragging marks of the body of the deceased were there,

but not a single injury was found on the body of the deceased.

16. This Court also observes that the prosecution witnesses

stated that at the place of the incident, there were marks

indicating of footprints of footwear of the accused-appellant, when

the body of the deceased was found at the said place; at that

time, the footwear were recovered from the accused-appellant by

the PW.11-Sobhag Singh (S.I), and as per his statement, no

footprints were taken in his presence. This Court further observes

that as per the prosecution story when they found body of the

deceased, at that time, the neighbours also reached the place of

incident, as a result whereof, the footprints may also be of some

other persons.

16.1. This Court also observes that there might be a possibility,

that the accused-appellant, while he was searching for the

deceased, the previous day, when he visited the place in question,

his footprints might have been there, and therefore, the alleged

presence of footprints of the accused-appellant at the place in

question was not a sufficient and reliable piece of evidence to

convict him for the offence of murder.

17. This Court further observes that the prosecution witnesses

stated that the deceased, prior to her death, informed them that

she would be killed by the accused-appellant, but no deposition

was made by them, as to the reason for the same, so also

[2024:RJ-JD:22912-DB] (12 of 17) [CRLA-209/1991]

whether any intention was on the part of the accused-appellant for

committing such an act; even if it is believed that the deceased,

prior to her death, gave such an information to the witnesses, in

that case, it was expected of the family members to have taken

the necessary precautions, to prevent the alleged act on the part

of the accused-appellant; taking of such precautions are also not

discernible from the record, and thus, the said deposition of the

witnesses is doubtful, and thus, it cannot be believed that the

accused-appellant was carrying any intention to commit murder of

the deceased.

18. This Court also observes that as per the prosecution, they

have recovered the cloth which was used to commit the crime in

question, but the said cloth was not sent for the FSL examination

to ascertain the truth, and therefore, on that count also, the entire

prosecution story becomes doubtful, apart from material

contradictions in the statements of the prosecution witnesses.

19. This Court further observes that the present case is based on

circumstantial evidence, and as per chain of the circumstantial

evidence, it is expedient to have a look at the case laws pertaining

thereto.

19.1. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v.

State of Maharashtra, (1984) 4 SCC 116, relevant portion

whereof is reproduced as hereunder-:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

[2024:RJ-JD:22912-DB] (13 of 17) [CRLA-209/1991]

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved"

and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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, (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.

154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

19.2. This Court is further conscious of the judgment rendered by

the Hon'ble Apex Court in the case of Haresh Mohandas Rajput

v. State of Maharashtra, (2011) 12 SCC 56, relevant portion

whereof is reproduced as hereunder:-

"Circumstantial evidence "(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

[2024:RJ-JD:22912-DB] (14 of 17) [CRLA-209/1991]

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) 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

(iv) 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 should be inconsistent with his innocence."

20. This Court also observes that the following contradictions and

documents cannot escape the scrutiny in the present adjudication,

as per the precedent laws pertaining to circumstantial evidence:

(a) The last seen theory, i.e. the deceased was seen with the

accused-appellant, and the last seen evidence given by P.W.6-

Chawali, but the same did not come in the statements of the

prosecution witnesses, and it was only stated that the accused-

appellant was searching for her, and there is nothing on record to

prove the said last seen theory.

(b) The contradiction in the statement of PW.3 (complainant)

regarding the presence of the accused-appellant as well as prior

dispute between the accused-appellant and deceased.

accused-appellant as per the statements of PW.1, P.W 2, when

seen conjointly with the statement of PW.3.

(d) The footprints of footwear of the appellant itself created a

serious doubt about the prosecution story, and PW.11 (S.I.) stated

that in his presence, the said footprints were not collected.

[2024:RJ-JD:22912-DB] (15 of 17) [CRLA-209/1991]

(e) As per the prosecution, though the cloth which was used to

cause death of the deceased was recovered, but the same was not

sent for FSL examination to unearth the truth.

21. This Court further observes that where the conviction is

solely based on the circumstantial evidence, then all the

circumstances surrounding the case must be sufficient to arrive at

the conclusion that the accused has committed the offence in

question, but in the present case, a lacuna so discernible on the

face of the record, makes the story of the prosecution doubtful, as

the same does not fulfill the requirements of such conviction as

laid down by the Hon'ble Apex Court in the aforementioned

precedent laws pertaining to the circumstantial evidence.

22. This Court also observes that when the judgment of

conviction is challenged before the Appellate Court, a proper

appreciation of the evidence recorded by the learned Trial Court

has to be made. The power of the Appellate Court is provided

under Section 386 of Cr.PC, which reads as under:-

"386. Powers of the Appellate Court.--

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."

[2024:RJ-JD:22912-DB] (16 of 17) [CRLA-209/1991]

22.1. This Court further observes that as provided under Section

386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the

findings of the conviction, so as to acquit the accused.

23. Now, as regards, the scope of interference in the judgment

of conviction passed by the learned Trial Court, it is considered

appropriate to reproduce the relevant portion of the judgment

rendered by the Hon'ble Apex Court in case of Kamlesh

Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as

hereunder:-

"10. In Rama v. State of Rajasthan [(2002) 4 SCC 571:

2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4) "4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

[2024:RJ-JD:22912-DB] (17 of 17) [CRLA-209/1991]

24. This Court further observes that the material contradictions

in the prosecution story, as in the present case, always make the

accused entitled for the relief in the form of reversal of the finding

of conviction recorded by the learned Trial Court. This Court also

observes that there are reliable and cogent evidence on record

that the accused-appellant's conviction deserves to be reversed,

i.e. from conviction to acquittal, as provided under Section 386(b)

(i) of Cr.P.C "reverse the finding and sentence and acquit".

25. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present case, as well as in view of the

aforementioned precedent laws, the present appeal is allowed.