Rajasthan High Court - Jodhpur
Gattu Alias Tulsia vs State on 22 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:41779-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 296/1998
Gattu Alias Tulsia
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Divik Mathur, Amicus Curiae
For Respondent(s) : Mr. C.S. Ojha, AGA
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reserved on 24/09/2024
Pronounced on 22/10/2024
Per Dr. Pushpendra Singh Bhati, J:
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 and he be
set at liberty"
2. The matter pertains to an incident which occurred in the year
1996 and the present appeal has been pending since the year
1998.
3. The accused-appellant laid a challenge to the judgment of
conviction and order of sentence dated 10.03.1998 passed by the
learned Additional Sessions Judge, Dungarpur, in Sessions Case
66/97 (State of Rajasthan v. Gattu @ Tulsa and ors.), whereby the
[2024:RJ-JD:41779-DB] (2 of 16) [CRLA-296/1998]
present accused-appellant has been convicted and sentenced as
below:
Offence under Sentence(s) Fine(s)
Section(s)
302 IPC Life Imprisonment Rs. 1000/- in
default of which to
undergo further 2
years of Rigorous
Imprisonment
201 IPC 3 years Rigorous Rs. 500/- in default
Imprisonment of which to
undergo further 6
months of Rigorous
Imprisonment
However, 7 other implicated accused, were acquitted by the
learned trial court.
4. As the pleaded facts and the record would reveal, an
information was received by the Police on 09.11.1996 at around
04:00 pm, to the effect that an unidentified dead body has been
found lying in the Well. Upon taking out the dead body from the
said Well, it was found that the same, as identified by Ranchod
(PW-1) brother of the deceased, was that of one Gala (henceforth
referred to as 'deceased'). In the instant factual matrix, the
accused-appellant and the deceased victim were having their
lands nearby and on 08.11.1996, there occurred a verbal
altercation between them regarding feeding and trespassing of
cattle. After such verbal altercation, the deceased went to the
accused-appellant's father to complain about the conduct of the
accused-appellant, and being annoyed by the same he reached
the place and started hitting the deceased with a wooden stick; as
[2024:RJ-JD:41779-DB] (3 of 16) [CRLA-296/1998]
a consequence whereof, the deceased, at the house of one Gebilal,
succumbed to the injuries caused by the accused-appellant,
whereafter, the accused-appellant disposed of the dead body in
the aforesaid well.
5. On the basis of the aforementioned information, an FIR was
registered against the accused-appellant under Sections 302 and
201 of the Indian Penal Code, 1860 (hereinafter referred to as
'IPC') and against the 7 other accused persons under Section 201
IPC, thereafter, the investigation commenced accordingly. The
police after completing the investigation, submitted a chargesheet
under the aforesaid provisions of law; the learned Trial Court
framed the charges against the accused-appellant and the other
accused persons. The charges were read over to them, which they
denied and claimed to stand the trial and the trial commenced
accordingly.
6. During course of the trial, the evidence of 18 prosecution
witnesses were recorded and 48 documents were exhibited on
behalf of the prosecution, whereas, the accused-appellant
produced 2 witnesses and exhibited 9 documents in support of the
defence; whereafter, the accused-appellant and other accused
persons was examined under Section 313 Cr.P.C., in which they,
while denying all the charges, pleaded innocence and their false
implication in the criminal case in question.
7. Subsequently, 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
[2024:RJ-JD:41779-DB] (4 of 16) [CRLA-296/1998]
conviction and order of sentence dated 10.03.1998, against which
the present appeal has been preferred on behalf of the accused-
appellant. However, as indicated above, the other accused persons
were acquitted of the charges against them, by the learned Trial
Court vide the impugned judgment.
8. Mr. Divik Mathur, learned Amicus Curiae appearing for the
accused-appellant submitted that the testimony of PW-4 Shanti is
unreliable, as a bare perusal thereof clearly reveals that she
stated to have only heard about the death in question and that
she did not know how it occurred. Further, she did not see the
person who was carrying the weapon used in the said offence.
Also, the delay in testimony before the police raises suspicion of
her being an eyewitness as alleged, thus, she is a hostile witness,
as she did not support her own version in the cross-examination.
8.1. It was further submitted, with regard to PW-5 Hurji that his
testimony reveals that he is just a chance witness and he stated
to have not known about the date and time of the death in
question; he only identified the deceased in dock for the first time.
In this regard, reliance was placed upon the judgment rendered
by the Hon'ble Apex Court in the case of Ravi Mandal v. State
of Uttarakhand (2023) SCC OnLine SC 651.
8.2. It was also submitted that PW-5's version of the story
contradicts the version of other alleged eyewitnesses, as he
deposed only to the extent of having seen the accused-appellant
holding hands of the deceased and taking him inside the house of
Gebilal. Hence, it was submitted that the said witness is clearly
not an eyewitness to the incident in question. In this regard,
[2024:RJ-JD:41779-DB] (5 of 16) [CRLA-296/1998]
reliance was placed upon the judgment rendered by the Hon'ble
Apex Court in the case of Krishnegowda and ors. v. State of
Karnataka (2017) 13 SCC 98.
8.3. It was further submitted that the site plan also does not
corroborate the testimony of eye witness PW-5 who has stated to
have witnessed the incident from the house of Dhula and that of
PW-12, the investigating officer who has stated that the house of
Dhula is behind the house of Gebilal as the said alleged factum is
clearly absent from the site plan. In this regard, reliance was
placed upon the judgment rendered by the Hon'ble Apex Court in
the case of Shingara Singh v. State of Haryana (2003) 12
SCC 758.
8.4. It was also submitted that the manner in which investigation
has been conducted by concerned police authorities creates a
complete cloud on the prosecution story; almost all the important
witnesses produced during the trial i.e., PW-1, PW-3, PW- 4, PW-
6, PW-7, PW-8, PW-17 and PW-18 have stated in their testimonies
that the police have apparently committed certain material
omissions in recording the testimonies of the said witnesses, as
the same clearly not in line with the actual depositions made by
them.
8.5. It was further submitted that the delay in the filing of the FIR
by the complainant, Ranchod (PW1) remained unexplained during
the whole proceedings of the trial. Furthermore, the eyewitnesses
of incident did not depose to anybody for long and went to police
only after the registration of FIR, which also casts a shadow of
doubt on their credibility. In this regard, reliance was placed on
[2024:RJ-JD:41779-DB] (6 of 16) [CRLA-296/1998]
the judgment rendered by the Hon'ble Apex Court in the case of
Ramaiah v. State of Karnataka (2014 9 SCC 365).
8.6. It was also submitted that the manner in which recoveries
have been affected by the prosecution dwindles its case, as the
same was done without adhering to the provisions of Section 27 of
Indian Evidence Act, 1872 as the words/statements made by the
accused as information given under Section 27, were not
incorporated in the Panchama. In this regard, reliance was placed
on the judgment rendered by the Hon'ble Apex Court in the case
of Babu Sahebagouda Rudragoudar v. State of Karnataka,
(Criminal Appeal No. 985/2010) decided on 19.04.2024
and Bobby v. State of Kerala (Crl. Appeal No. 1439/2009)
decided on 12.01.2023.
8.7. It was further submitted that no blood stains were found on
the weapons or the objects recovered and they were not even
sent for FSL by the investigating officer (PW-12). It was also
submitted that as per the Postmortem Report and the testimony of
the Doctor (PW-9) the cause of death in question is not any
alleged weapon of offence which was recovered, rather it was
head injury and liver rupture, which could have caused the death
because of the deceased falling in the well. In this regard, reliance
was placed upon the judgment rendered by the Hon'ble Apex
Court in the case of Sonvir v. State (NCT of Delhi) (2018) 8
SCC 24.
8.8. It was also submitted that the chain of the circumstances in
the present case is not complete and the ingredients of Section
302 IPC and 201 IPC are also not made out. It was further
[2024:RJ-JD:41779-DB] (7 of 16) [CRLA-296/1998]
submitted that in the present case, two views are possible,
wherein by virtue of the testimony of Nanji (DW1), the second
view so shown is that the deceased was arguing with his family
members, who were very frustrated about his high consumption of
alcohol, for which he said, "it would be better if he only dies", as
then the family will not face any problem and; in the presence of
this, second plausible view as submitted on behalf of the accused-
appellant, is that when two views are possible, the view tilting in
favour of the accused should be considered as held by the Hon'ble
Apex Court in the case of Pradeep Kumar v. State of
Chattisgarh (2023) 5 SCC 350.
9. On the other hand, Mr. C.S. Ojha, learned Additional
Government Advocate appearing on behalf of the respondent-
State, opposed the aforesaid submissions made on behalf of the
accused-appellant, while submitting that PW.4 (Shanti) and PW.5
(Hurji) saw the accused-appellant taking the deceased with him
into the house of Gebilal.
9.1. It was further submitted that there is evidence of there being
altercation between the two i.e. the deceased and the accused-
appellant, which shows motive on part of the accused-appellant to
cause death in question. It was also submitted that the weapons
of the crime in question i.e., 2 lathis were recovered on the basis
of the information given by the accused-appellant himself, and
therefore, he was rightly convicted and sentenced by the learned
Trial Court vide the impugned judgment.
10. 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:41779-DB] (8 of 16) [CRLA-296/1998]
11. This Court observes that the accused-appellant was charged
with the offence of murder of the deceased, and after conducting
the trial, learned Trial Court convicted and sentenced him in
connection with the charges under Sections 302 & 201 IPC, vide
the impugned judgment.
12. This Court further observes that as per the prosecution,
there were 4 eyewitnesses of the incident in question, i.e., PW4
(Shanti), PW5 (Hurji), PW6 (Bhemji), PW13 (Mani). However, the
learned Trial Court has observed that PW13 has denied to have
seen anything and have not at all supported the story of the
prosecution. Further, with regard to PW6's testimony, the learned
Trial Court has concluded that PW6 was having some property
dispute with the accused-appellant, pursuant to which he has filed
the complaint against him; which in turn casts a doubt upon his
testimony. Further, PW6 has also talked about seeing the incident
of fight and hitting among the accused-appellant, deceased-victim
and Gebilal, however, the same is not corroborated by any other
witness. Therefore, the testimony of PW6 is not reliable.
13. Further, with regard to the testimony of PW4, the learned
Trial Court has found it to be reliable and has not found anything
substantial enough to cast a doubt upon her testimony. However,
a perusal of the testimony given by PW4, reveals a clear
contradiction in the statements made by him in the examination-
in-chief and the cross-examination; whereas in the examination-
in-chief, she stated to have seen the accused-appellant entering
the house and assaulting the deceased but, in the cross-
examination, she stated that she niether knows who entered the
[2024:RJ-JD:41779-DB] (9 of 16) [CRLA-296/1998]
house of Gebilal, nor did she listen to any screams from the said
house. This contradiction in the statements casts a serious doubt
upon the testimony of PW4.
14. Further, another pertinent witness of the prosecution is PW5,
who was unable to substantiate upon any of the questions asked
during the examination; he is just a chance witness and he stated
to have not known about the date and time of death of deceased,
he only identifies the deceased in dock for the first time. Further,
his version of story contradicts the version of other alleged
eyewitnesses as he stated only to the extent of having seen the
appellant holding hands of the deceased and taking him inside the
house of Gebilal. The same also proves the fact that he was not an
eyewitness. Therefore, the learned trial court has erred in law in
believing the said witness to be an eyewitness and therefore was
not justified in believing the testimony of PW5.
15. Thus, this Court concludes that in the present case, there
was no reliable eyewitness, and therefore, the guilt of the
accused-appellant lies upon the circumstantial evidence in the
case.
15.1. In this regard, 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, whereby the Hon'ble Apex Court laid down the five golden
principles, which constitute the Panch-Sheel of the proof of a case
based on circumstantial evidence; the same reads as follows:
"(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established. It may be noted here that this
[2024:RJ-JD:41779-DB] (10 of 16) [CRLA-296/1998]
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 & Anr. v. State of Maharashtra where the following
observations were made: "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 164
(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."
16. This Court further observes that the learned Trial Court has
accepted the argument of the accused-appellant that PW1
(Ranchod), PW2 (Gattu), PW5 (Huraj) and PW16 (Nani) were not
the eyewitnesses of the incident in question and they got to know
about it later, and therefore their testimonies as against the
accused-appellant are also merely on the basis of suspicion that
the accused-appellant has caused the death of in question.
However, the testimony of PW-5, Huraj and PW-16, Nani shows
that on the day of death, an altercation happened between the
accused-appellant and the deceased, but the mere factum of an
altercation between the two does not conclusively prove that it
[2024:RJ-JD:41779-DB] (11 of 16) [CRLA-296/1998]
was only the accused-appellant, who committed the crime in
question.
17. This Court also observes that it is clear from the Postmortem
Report, Ex.P. 17 and the testimony of PW9 (Dr. Rakesh Verma)
that the cause of the victim's death is 'Haemorrhage Shock', which
occurred due to rupture of spleen and 'Head Injury', which could
possibly occur by falling in the Well and does not necessarily point
towards injuries if any, that lathis so recovered could have caused.
The possibility of the deceased himself jumping into the Well is
further supported by the testimony of defence witnesses DW1
(Nanji) and DW2 (Rama), who have highlighted the factum of the
presence of family issues and statement made by the deceased,
expressing his desire to end his life in order to solve the problems
of his family.
18. Further, this Court observes that the Site Plan prepared by
the investigating officer does not corroborate the testimony of the
witnesses PW5 and PW12, as the places mentioned by them in
their testimonies are not present in the site plan.
19. This Court thus observes that in the absence of any direct
evidence in the present case, the onus lies on the prosecution to
establish a complete chain of circumstances, which could point
towards one and only one conclusion which is the guilt of the
accused-appellant and no other. However, in the present factual
matrix, the story of prosecution is knotted due to vitiated shreds
of evidence and does not point only towards the guilt of the
accused-appellant.
[2024:RJ-JD:41779-DB] (12 of 16) [CRLA-296/1998]
20. 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(b) of Cr.PC, which reads as under:-
"386. Powers of the Appellate Court.--
After perusing such record and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor if he appears,
and in case of an appeal under Section 377 or Section 378, the
accused, if he appears, the Appellate Court may, if it considers
that there is no sufficient ground for interfering, dismiss the
appeal, or may-
(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--"
20.1. Thus, the Appellate Court has the power under Section
386(b)(i) of Cr.P.C., to reverse the findings of the conviction, so
as to acquit the accused.
21. 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: -
"9. At this juncture, we are obliged to state that though it
may be difficult to state that the judgment suffers from sans
[2024:RJ-JD:41779-DB] (13 of 16) [CRLA-296/1998]
reasons, yet it is not at all difficult to say that the reasons
ascribed are really apology for reasons. If we allow
ourselves to say so, one may ascribe certain reasons which
seem to be reasons but the litmus test is to give seemly and
condign reasons either to sustain or overturn the judgment.
The filament of reasoning must logically flow from requisite
analysis, but, unfortunately, the said exercise has not been
carried out. In this context, we may refer with profit to the
decision in Padam Singh v. State of U.P. [(2000) 1 SCC
621: 2000 SCC (Cri) 285], wherein a two-Judge Bench,
while dealing with the duty of the appellate court, has
expressed thus: (SCC p. 625, para 2) "2. ... It is the duty of
an appellate court to look into the evidence adduced in the
case and arrive at an independent conclusion as to whether
the said evidence can be relied upon or not and even if it
can be relied upon, then whether the prosecution can be
said to have been proved beyond reasonable doubt on
the said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference from
proved and admitted facts. It must be remembered that the
appellate court, like the trial court, has to be satisfied
affirmatively that the prosecution case is substantially true
and the guilt of the accused has been proved beyond all
reasonable doubt as the presumption of innocence with
which the accused starts, continues right through until he is
held guilty by the final Court of Appeal and that
presumption is neither strengthened by an acquittal nor
weakened by a conviction in the trial court.
(emphasis supplied)
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
[2024:RJ-JD:41779-DB] (14 of 16) [CRLA-296/1998]
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."
11. In Iqbal Abdul Samiya Malek Vs. State of
Gujarat, (2012) 11 SCC 312: (2013) 1 SCC (Cri) 636],
relying on the pronouncements in Padam Singh [(2000) 1
SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State
of U.P. (1996) 4 SCC 720: 1996 SCC (Cri) 848], this
Court has reiterated the principle pertaining to the duty of
the appellate court.
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."
22. This Court further observes that there are two sides to the
story; firstly, as per the prosecution, the accused-appellant
committed murder of the deceased due to the altercation between
the two and then disposed of the body in the well; and secondly,
as per the defence, the deceased was going through some family
[2024:RJ-JD:41779-DB] (15 of 16) [CRLA-296/1998]
issues over his over-consumption of alcohol, pursuant to which he
himself jumped in the Well and resultantly, died. The evidences
produced by the defence have successfully cast a doubt upon the
story of the prosecution, and therefore, the prosecution has failed
to satisfy the Panch-sheel principles laid by the Hon'ble Apex
Court in the case of Sharad Birdhichand Sarda (supra).
23. This Court therefore observes that in the present case, the
prosecution has failed to prove its case against the accused-
appellant, beyond all reasonable doubts. Thus, the benefit of
doubt has to be given to the accused-appellant.
24. This Court also observes that there are reliable and cogent
evidence on record that the accused-appellant's conviction
deserves to be reversed, 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 the factual
matrix of the present case, as well as in view of the
aforementioned precedent laws, the present appeal is allowed.
Accordingly, while quashing and setting aside the impugned
judgment of conviction and order of sentence dated 10.03.1998
passed by the learned Additional Sessions Judge, Dungarpur, in
Sessions Case 66/97 (State of Rajasthan v. Gattu @ Tulsa and
ors.), the accused-appellant is acquitted of the charges against
him under Sections 302 & 201 IPC. The appellant was granted bail
vide order dated 20.08.1998 (D.B. CR. MISC. (Bail) No. 224/98)
passed by a Coordinate Bench of this Hon'ble Court in the instant
appeal. His bail bonds stand discharged.
[2024:RJ-JD:41779-DB] (16 of 16) [CRLA-296/1998]
25.1. However, keeping in view the provisions of Section 437A
CrPC/ Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023,
the accused-appellant is directed to furnish a personal bond in a
sum of Rs. 25,000/- each and a surety bond in the like amount,
before the learned Trial Court, which shall be made effective for a
period of six months, to the effect that in the event of filing of
Special Leave Petition against this judgment or for grant for leave,
the accused-appellant, on the receipt of notice thereof, shall
appear before the Hon'ble Supreme Court as and when called
upon to do so.
25.2. All pending applications stand disposed of. Record of the
learned Trial Court be sent back forthwith.
26. This Court is thankful to Mr. Divik Mathur, who has rendered
his assistance as an Amicus Curiae, on behalf of the accused-
appellants, in the present adjudication.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
SKant/-
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