JUDGMENT
Sunil Kumar Garg, J.
1. The abovementioned two appeals are being decided by this common judgment and order as both arise out of the same judgment and order dated 6.7.2002 passed by the learned Additional Sessions Judge (Fast Track), Udaipur as the accused appellant Dalpat has sent the appeal from jail also being appeal No. 760/2002 though he has filed representative appeal No. 665/2002.
FACTS OF APPEAL NO. 665/2002
2. The accused appellants Dalpat Singh and Ratan Singh have preferred this appeal against the judgment and order dated 6.7.2002 passed by the learned Additional Sessions Judge (Fast Track), Udaipur in Sessions Case No. 150/2001 by which he convicted the accused appellants as under:-
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Offence Under Section Sentence awarded
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302/34 IPC Life Imprisonment and a fine of Rs. 1000 each, in
default of payment of fine to further unergo 6
months' R.I.
379/34 IPC 1 Year's R.I.
Both the sentences were ordered to run concurrently.
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3. It arises in the following circumstances:
i) That on 12.9.2001 P.W. 2 Pritam Singh lodged a written report (Ex.P/4) with the police Station Sayra Dist. Udaipur stating that his brother P.W. 10 Jaswant Singh’s wife Smt. Pawan Kunwar (hereinafter referred to as the deceased) was missing since 12.9.2001 as on that date in the morning at about 7’O Clock, she had gone to Kamba for tying the buffalo, but she had not returned. On this report a FIR about missing person was registered.
ii) Further case of the prosecution is that on the next day i.e. on 13.9.2002, P.W.2, P.W. 2 Pritam Singh lodged another report Ex.P/5 with the Police Station Sayra inter alia stating that on 12.9.2001, he had already lodged a missing report (Ex.P/4) about the deceased who had gone as guest to the house of her Bhua Smt. Gulab Kanwar P.W. 6 at village Kamba from where she was missing. It was further stated in the report (Ex.P/5) that on 13.9.2001, when search of the deceased was being going on, the dead body of the deceased was found lying under a tree in the filed of Dalpat Singh (P.W.3) at Village Kamba. It was further stated in the report (Ex.P/5) that on the body of the deceased there were signs of abrasions present on her neck, by which it appeared that the deceased was, murdered by unknown persons by pressing her neck.
iii) On this report (Ex.P/5), police chalked out regular FIr Ex.P/6 and started investigation. The investigation was got conducted by PW. 16 Chandmal Regar and during the course of investigation, Panchanama of dead body of the deceased was got prepared and the same is Ex.P/1. Site plan was also prepared by the police and the same is Ex.P/2 and photo-graphs of the dead body were taken and the same are Ex.P/10 to Ex.P/15. The accused appellant Ratan Singh was got arrested through Fard Ex.P/37 on 17.9.2001 by P.W. 16 Chand Mal Regar.
iv) The post mortem of the dead body of the deceased was got conducted by P.W. 11 Dr. Sudha Gandhi and P.W. 13 Dr. Rahul Jain and the post mortem report of the deceased is ex.P/27 where cause of death of the deceased was opined to be asphyxia due to antemortem strangulation.
v) After arrest, the accused appellant Ratan Singh gave information Ex.P/42 on 20.9.2001 to P.W. 16 Chand Mal Regar that he could get recovered one paijeb of silver and in pursuance of that information, P.W. 16 Chand Mal Regar got recovered one paijeb in presence of witnesses Jawan Singh and Jiwan Singh (PW.9) through Fard Ex.P/23. Similarly, the accused appellant Dalpat Singh have information Ex.P/43 on 20.9.2001 to P.W. 16 Chand Mal Regar that he could get recovered one paijeb of silver and in pursuance of that information Ex.P/43, P.W.16 Chand Mal Regar got recovered one paijeb in presence of witnesses Jawan. Singh and Jiwan Singh (P.W.9) through fard Ex.P/25.
vi) Further case of the prosecution is that both paijebs were got identified by P.W.10 Jaswant Singh, husband of the deceased before Magistrate P.W. 15 Manish Agrawal and identification memos are Ex.P/33 and P/34 respectively.
vii) Further case of the prosecution is that before the incident, the accused appellants and the deceased were seen together by witness P.W.5 Gajiya Gameti and thus, after usual investigation, challan was filed against the accused appellants for offence Under Sections 302 and 397 I.P.C.
viii) That the learned Additional Sessions Judge vide order dtd. 31.1.2002 framed charge against the accused appellants for offences under Sections 302/34 and 397/34 I.P.C.
ix) During trial statements of 16 witnesses were recorded on behalf of the prosecution and thereafter statements of accused appellants under Section 313 Cr.P.C. were corded, but no witness was examined in defence.
x) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 6.7.2002 convicted and sentenced the accused appellants as stated above after placing reliance on two circumstances:
i) Evidence of Last seen which he found in the statement of PW 5 Gajiya Gameti.
ii) Recovery of silver paijeb belonging to the deceased from each of the accused appellants.
xi) After being aggrieved by the judgment and order dtd. 6.7.2002 the accused appellants have preferred the present appeal.
4. In this appeal, following submissions have been raised by the learned counsel for the accused appellants:
i) That so far as statement of P.W.5 Gajiya Gameti in respect of last seen is concerned, his statement is not of sterling worth as he had not seen both the accused appellants and the deceased together.
ii) So far as recovery of silver paijeb belonging to the deceased from each accused appellants is concerned, the same was planted by P.W. 16 Chand Mal Regar (I.O.) for falsely implicated the accused appellants in this case and hence, there is no clinching evidence to connect the accused appellants with the commission of crime and hence the findings of the learned trial Court are erroneous one and they should be acquitted.
5. On the other hand, the learned P.P. has supported the judgment and order dated 6.7.2002 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court.
6. Heard and perused the record.
7. Before proceedings further medical evidence in this case has to be seen which is found in the statement of P.W. 11 Dr. Sudha Gandhi and P.W. 13 Dr. Rahul Jain who conducted the post mortem of the body of the deceased.
8. P.W. 11 Dr. Sudha Gandhi and P.W. 13 Dr. Rahul Jain have stated that on 13.9.2001. they conducted the pose-mortem of the body of the deceased and they found following injuries on the body of the deceased:
i) Abrasion 2×1 cm. on left side of neck. Anterior aspect,
ii) Abrasion 1×1/2cm on left side of neck, Antrior aspect,
iii) Abrasion 1×1 cm on left side of neck, Antrior aspect,
iv) Abrasion 1/2×1/4 cm on left side of neck, Antrior aspect,
v) Abrasion 1/2×1/2cm on left side of neck, Antrior aspect.
vi) Abrasion 1×1/2 cm on mid line of neck, alone thyroid cartilage, anterior aspect.
vii) Abrasion 1×1/4 cm on mid line of neck, alone thyroid cartilage, antrior aspect.
viii) Abrasion 1×1/2cm on Right side of neck, Another aspect.
ix) Abrasion 1x1cm on right side of neck, Antrior aspect.
x) Abrasion 1/2x/12 cm on right side of neck, Another aspect.
xi) Lacerated wound 1×1/2 cm on right side of forehead x scalp deep.
xii) Abrasions 10 in number small sized, Right forehead.
xiii) Abrasion 1×1 cm on right hand.
xiv) Abrasion 2×1 cm on right thigh latual aspect.
xv) Abrasion 3/1 cm. On right thigh latual aspect
xvi) Abrasion 9 in number present on right thigh small sized.
xvii) 9×6 cm above right knee
xviii) Abrasion 4/3 cm right leg anterior aspect.
xix) Ligature Mark 13×7 cm. Present on anterior aspect of neck, incomplete, more on right side of neck.
9. P.W. 11 Dr. Sudha Gandhi and P.W. 13 Dr. Rahul Jain have proved the post mortem report Ex.P/27 and as per the post mortem report Ex.P/27, the cause of death which was opined was asphyxia due to antemortem strangulation.
10. Thus, two facts have been established by post mortem report (Ex.P/27) and statements of P.W. 11 Dr. Sudha Gandhi and P.W. 13 Dr. Rahul Jain and that cause of death of the deceased was asphyxia due to antemortem strangulation and when this being the position, it can easily be concluded that death of the deceased was homicidal and unnatural.
11. In the present case there is no direct evidence against the accused appellant and the prosecution has placed reliance on following circumstantial evidence:
i) That the deceased was last see with the accused appellants by P.W. 5 Gajiya Gameti.
ii) Recovery of one paijeb belonging to the deceased through Fard Ex.P/23 and Ex.P/25 from both the accused appellants.
12. Before proceeding further, we must see what is circumstantial evidence and what is its evidenciary value in criminal jurisprudence.
13. Circumstantial evidence is that which relates to a service of other facts than the fact in issue; but which by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. It is one of the established principles of law that a witness may lie but not the circumstances. However, the Court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the later does so by placing circumstances which lead to irresistible inference of guilt.
14. In reference to cases where there is no direct evidence and the decision has to rest on circumstantial evidence, the Hon’ble Supreme Court in a line of decisions has consistently held that such evidence must satisfy the following tests:-
i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
ii) those circumstances should be of a definite tendency unerringly pointing towards the 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 on 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.
15. In this connection, the decisions of Hon’ble Supreme Court in Ashok Kumar v. State of M.P. (AIR 1989 SC 1890) Padala Veera v. State of A.P. (AIR 1990 SC 79), Josheph v. State of Kerala (2000(5) SCC 197), Kuldeep v. State of Rajasthan (2000(5) SCC 7) and Subramani v. State by Inspector of Police (JT 2003 (5) SC 613) may be seen.
16. It is also well settled that the prosecution has to establish each circumstance by independent evidence and the circumstances so established should form a complete chain without giving room to any other hypothesis and should be consistent with his guilt and are inconsistent with his innocence.
17. Keeping the above principles in mind, the circumstances of the present case are being examined.
FIRST CIRCUMSTANCE OF LAST SEEN
18. In this case, the deceased had left the house on 12.9.2001 and on 13.9.2001, the dead body of the deceased was found in the field of PW 3 Dalpat. The prosecution has produced P.W. 5 Gajiya Gameti for proving the circumstance of last seen. P.W. 5 Gajiya Gameti has admitted following facts in the cross-examinations:
i) That he has not seen the face of that lady.
ii) That he has not disclosed the names of the accused appellant because of fear.
iii) Since he was at a distance of 1/2 kms, therefore, he could not have seen the face of the deceased.
iv) That after the incident he met about 100-200 people, but he did not disclose the incident as witnessed by him to anybody.
19. In our considered opinion, the evidence of P.W.5 Gajiya Gameti is not of sterling worth on the point of last seen. He has stated that he had not recognized the face of the deceased and for proving the fact of last seen, there must be cogent evidence that the deceased was last seen in the company of the accused. In the present case, as per the statement of P.W. 5 Gajiya Gameti, he had not recognized that lady, and therefore, this evidence cannot be treated to be of last seen. So far as statement of P.W. 7 Daulat Singh is concerned, he had stated that he was told by P.W. 5 Gajiya Gameti that the saw the accused appellants snatching the deceased, but P.W. 5 Gajiya Gameti has not stated this fact and P.W. 7 Daulat Singh has further stated that P.W. 5 Gajiya Gameti gave that statement before so many people of the village, but none of them have been produced to prove that fact. Apart from this the conduct of P.W. 5 Gajiya Gameti creates doubt on his testimony on the point that he had not narrated this incident to those persons to whom he had met just after the occurrence. Therefore, this circumstance of last seen cannot be said to have established and proved by the prosecution beyond reasonable doubt.
SECOND CIRCUMSTANCE OF RECOVERY OF ORNAMENTS.
20. So far as recovery of one silver paijeb from the each of accused appellants is concerned, the case of the prosecution is that the deceased was wearing silver paijebs and each accused appellants shared each silver and P.W. 16 Chand Mal Regar got recovered those silver paijebs through Fard Ex.P/43 given by accused appellant Ratan Singh and Dalpat Singh respectively and these articles were identified by P.W. 10 Jaswant Singh (Husband of the deceased) before Magistrate P.W. 15 Manish Agrawal in identification memos (Ex.P/33 and P/34).
21. The next question which arises for consideration is whether this recovery of silver paijebs can be said to be a circumstance connecting the accused appellants with the commission of crime?
22. P.W. 4 Takhat Singh is one of the witnesses of the prosecution who has stated that when the dead body of the deceased was got recovered, he was present on the spot. He has admitted following facts in cross-examination:
i) That the deceased was wearing golden ear rings, silver bangles in hand, and silver paijebs in legs.
ii) That paijebs from legs of the deceased were taken by SHO P.W. 16 Chand Mal Regar.
23. It may be stated that the case of the learned counsel for the accused appellants is that when the dead body of the deceased was seen and found in the field of Dalpat Singh (P.W. 3), Paijebs were in the legs of the deceased and for making out a false case against the accused appellants, they were taken by SHO PW 16 Chand Mal Regar from the legs of the deceased false recovery from the accused appellant has been made.
24. P.W. 16 Chand Mal Regar who is IO of this case has admitted following facts:
i) That it is correct to say that golden tops worn by the deceased were more expensive than so called paijebs of silver and golden tops were found on the body of the deceased at the time when he prepared Panchnama of dead body of the deceased. In Panchnama of dead body of the deceased, Ex.P/1, there is mention of the fact that when it was got prepared, the deceased was wearing golden earrings.
ii) That it is correct to say that at that time, there were silver bangles in the hands of the deceased.
iii) It is also correct to say that when panchanama lash of the dead body was got prepared, list of ornaments which were worn by the deceased was not prepared.
iv) He has also denied the suggestion that he had himself removed paijebs from legs of the deceased for making out a false case against the accused appellants.
25. In our opinion, the said recovery cannot be said to be recovery at the instance of accused appellants because of the following reasons:
i) There is no dispute on the point that ear rings and other ornaments worn by the deceased were found on the body of the deceased.
ii) P.W. 4 Takhat Singh who is a witness of the prosecution has clearly stated that when the dead body of the deceased was seen by him, she was also wearing paijebs in her legs and if his statement is taken into consideration, the fact that these articles were got recovered by the police on the information of the accused appellants becomes doubtful and from this point of view also, the case of the accused appellants that the recovery was falsely made at their instance by P.W.16 Chand Mal Regar cannot be said to be false one.
iii) The circumstance that the golden rings were found in the ears of the deceased goes to show that there was on intention of looting the ornaments of the deceased after committing murder as P.W. 16 Chand Mal Regar has himself admitted that golden ear rings were more expensive then the silver paijebs alleged to have been recovered from the accused appellants.
iv) That the manner in which it has been submitted by P.W. 16 Chand Mal Regar that he had recovered one paijeb from each accused appellants goes to show that the recovery is doubtful as for the such small item, murder would not have been committed by any person.
v) That to involve both the accused appellants by P.W. 16 Chand Mal Regar, recovery of one paijeb each has been shown to have been made from each accused appellants and therefore, possibility in this case that P.W. 16 Chand Mal Regar had shown recovery of one paijeb from each accused appellants to implicate them falsely cannot be ruled out especially when stand of the accused appellants that it was done by P.W. 16 Chand Mal regar, has been put in cross-examination of P.W. 16 Chand Mal Regar and one more witness, namely, P.W. 4 Takhat Singh further strengthens the case of the accused appellants on this point. Hence, submission of the learned counsel for the accused appellants in this respect cannot be said to be afterthought.
26. For the reasons mentioned above, the so called recovery in the present case at the instance of accused appellants becomes doubtful.
27. The result of the above discussion is that the prosecution has not been able to prove both the circumstances against accused appellants beyond reasonable doubt.
28. It is settled law that in the case of circumstantial evidence, each one of the circumstances has to be established beyond doubt and all the circumstances taken together must lead to the only one inference and i.e. guilt of the accused.
29. In this case, there is one more circumstance which goes against the prosecution i.e. the dead body of the deceased was recovered not in the filed of the accused appellants but from the field of PW. 3 Dalpat Singh who has been declared hostile and P.W. 3 Dalpat Singh has admitted this Fact. P.W 16 Chand Mal Regar has also admitted that dead body of the deceased was got recovered from the filed of Dalpat Singh (PW. 3) who was not impleaded as an accused in this case and this also creates a doubt on the prosecution story.
30. In this case, P.W. 16 Chand Mal Regar has implicated the appellants as accused on the basis of suspicion as he has admitted that during investigation, Smt. Gulab Kanwar (PW.6) had suspicion over these accused appellants. Therefore, they were made accused in this case on the basis of suspicion and the suspicion however, strong may be cannot take place of legal proof and from this point of view also, the case of the prosecution cannot be said to have proved its case beyond reasonable doubt.
31. In our considered opinion, looking to the entire facts and circumstances of the case and looking to the fact that the dead body of the deceased was not recovered at the instance of the accused appellants or from the field of the accused appellants, but was got recovered from the field of PW.3 Dalpat Singh and evidence of last seen has not been found to be established beyond reasonable doubt and so called recovery of paijebs belonging to the deceased is itself doubtful and does not connect the accused appellants with the commission of crime, thus, it cannot be said that the prosecution has proved its case beyond reasonable doubt against the accused appellants. Thus, the abovementioned tow circumstances are not pointing towards the guilt of the accused appellants and it cannot reasonably be concluded from these circumstances that the offence was committed by the accused appellants. The facts and circumstances of the case, just narrated above, do not form a complete chain bringing home the guilt of the accused appellants without giving room to any other hypothesis. The circumstances are not consistent with the guilty of the accused appellants.
32. Thus, for the reasons mentioned above, the findings of the conviction recorded by the learned Additional Sessions Judge against the accused appellants through impugned judgment and order cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellants are entitled to acquittal.
APPEAL NO. 760/2002
33. In view of the observations made in D.B. Criminal Appeal No. 760/2002, the appeal No. 760/2002 filed by the accused appellant Dalpat Singh from Jail also stands disposed of.
Accordingly, the appeal No. 665/2002 filed by the accused appellants is allowed and the impugned judgment and order dtd. 6.7.2002 passed by the learned Additional Sessions Judge (Fast Track), Udaipur are set aside and the accused appellants are acquitted of all the charges framed against them.
The appeal No. 760/2002 also stands disposed of in terms of the observations made in D.B. Criminal Appeal No. 665/2002.
Since the accused appellants are in jail, they be released forthwith, if not required in any other case.