Sec.302 and sec.406 I.P.C.- Sec. 27 of Indian Evidence Act - Circumstantial evidence - Material improvements in evidence - destroys the credible worthiness of evidence - Improper identification and Sizer of properties - properties not brought in sealed covers - already shown to the witnesses- proper comparative articles not placed for identification - lack of identification marks , presence of police etc., lacks confidence in the story of complaint - in which where the complainant was turned as Accused - Trial court and High court orders are set aside and accused are Acquitted under benefit of doubt =
Lack of credibility of witness and is liable for rejection. =
The prosecution case is that the appellants A-1 Atma Ram and
A-3 Vijay Kumar conspired and murdered Keshar Bai and stolen
the ornaments/articles possessed by her. Nobody has
witnessed the occurrence and the case rests on circumstantial
evidence. They found the
room of Keshar Bai open. They called Keshar Bai, but she did not
respond. Therefore they entered inside the room and saw Keshar Bai
lying dead in naked condition in a pool of blood. Her mouth was
tied with saree. On her legs a box was lying open. Based on the
report a case under Exh.P.13 First Information Report came to be
registered under Section 302 and 460 IPC and the investigation
commenced.=
In the cross
examination PW 10 Jaswant Singh has stated that he did not
tell in his statement to the police during investigation
about the threat made by A1-Atma Ram to Keshar Bai regarding
the possibility of an income-tax raid and seizure of
ornaments and also the demand of ornaments made by accused
Radha to Keshar Bai and her wearing the same.
This Court has
to form its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.
This witness PW 10 Jaswant Singh was admittedly
examined by Investigation Officer during investigation and in
that statement he has not stated the facts which he now for
the first time stated before the Trial Court.
This raises
a serious doubt as to the veracity of the said facts [See
Khalil Khan vs. State of M.P. (2003) 11 SCC 19].
In other
words this witness has made material improvement while
deposing in the Court and such evidence cannot be safe to
rely upon. Thus the evidence adduced by the prosecution to
prove the circumstances 2 and 3 does not pass the test of
credibility and is liable for rejection.
Property identification parade - failed to establish confidence on prosecution =
in State of Vindhya Pradesh
vs. Sarua Munni Dhimar and others [AIR 1954 V.P. (Vol.41 CN
15)]. The relevant portion reads thus :
“Further as has been observed in connection with
identification of accused persons no presumption
attaches to identification proceedings of property. It
is for the prosecution to establish affirmatively that
every necessary precaution was taken to ensure fair
identification. The most essential requirement is that
the witnesses should not have had an opportunity of
seeing the property after its recovery and before its
identification before the Magistrate. For that purpose
it is necessary to seal the property as soon as it is
recovered and to keep it in a sealed condition till it
is produced before the Magistrate. The police officers
who take the sealed bundles to the thana after recovery
and who take it to the Magistrate for identification
proceedings should be examined to prove that the sealed
bundles were not tampered with in any way. The sealed
bundles should be opened in the presence of the
Magistrate conducting the identification proceedings and
he should depose about it. The property to be mixed
with the property to be identified should also be sealed
some days before witnesses are called and the bundle
containing it should also be opened in the presence of
the Magistrate who should testify about it in court.
Further as has been observed in the case of
identification proceedings of persons the result of
identification as well as the fact whether the property
mixed was similar to the property identified should be
entered in the memorandum by the Magistrate in his own
hand.”
13. In the present case about 131 articles of gold and silver
were recovered.
About 60 witnesses have testified the
pledging of their articles with Keshar Bai.
The ornaments
like ‘Gorla’, ‘Chain of gold’, ‘madalia” ‘ring’, ‘Bitti’,
`Karia’, ‘Pahunchi’, ‘hasli’ etc. are of same kind lookwise
having no special marks on them.
Learned senior counsel
appearing for A-3 Vijay Kumar brought to our notice that one
Pahunchi as per Exh.P5 recovery Memo, which contained 59
Mania (Moti) was recovered along with 6 silver ornaments
mentioned therein,
whereas in Exh.P.68 a copy of Malkhana
register the six silver articles alone are found mentioned
and there is no mention of the gold ornament ‘pahunchi’ as
having kept safely in the Malkhana and it is not known as to
where it was kept and produced.
On a perusal of the said
documents, this contention cannot be easily brushed aside.
It is the further submission of the learned senior counsel
that as per the prosecution case
PW 28 Smt. Raj Kanwar has
pledged above said ‘pahunchi’ with Keshar Bai and she has
stated in her testimony that her ‘pahunchi’ was of 40 Mania
(Moti). If it is so the recovered ‘pahunchi’ is not that of
PW 28 Smt. Raj Kanwar. It is doubtful as to whether this
recovery claimed by the prosecution is established.
four witnesses examined claimed one ornament as theirs.
The
identification proceedings of articles was conducted by PW 83
Tahsildar Durga Prasad Sharma in Tehsil and he has claimed
to have prepared 72 identification reports.
In the cross-
examination he has admitted that there were policemen present
at the time of identification and he did not know the
articles brought to him were in sealed packets or in open
condition and he did not remember whether seal used on the
packets was official seal since 12 years have already passed.
Even he did not know as to who has arranged for articles
having similarity to the seized articles for the purpose of
identification and identification proceedings were completed
in a single day.
The Tahsildar even after looking at the
Memo was unable to say how many articles of each kind were
mixed up with articles to be identified and whether similar
articles were new or old, used or unused etc.
None of the
precaution that ought to have been taken to ensure fair
identification was ever taken and no weight can be attached
to the evidence of identification of property.
Though the
trial court has observed in the judgment about the lack of
proper identification of the articles, it erroneously
proceeded further to accept the same.
Recovery of weapons
namely knife and screw-driver claimed to have been made on
the information given by A-1 Atma Ram is also doubtful.
Even
assuming to be true that recovery of certain incriminating
articles were made at the instance of the accused under
Section 27 of the Evidence Act, that by itself cannot
form the basis of conviction
[See Wakkar vs. State of U.P. (2011) 3 SCC 306].
Conclusion :
2014 (Feb.Part) judis.nic.in/supremecourt/filename=41231
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2009
With
CRIMINAL APPEAL NO.1363 of 2009
Vijay Kumar .. Appellant(s)
versus
State of Rajasthan .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. These two appeals are preferred against the judgment of the
High Court of Judicature of Rajasthan at Jaipur Bench in DB
Criminal Appeal No.664 of 2001.
2. The appellant Dr. Atma Ram in Criminal Appeal No.1363 of 2009
is the accused No.1 and the appellant Vijay Kumar in
Criminal Appeal No.441 of 2009 is accused No.3 in the
Sessions Case No.28 of 2001 (38/1986) on the file of
Additional Sessions Judge (Fast Track) Jhunjhunu, Rajasthan
and they were tried for the alleged offences under
Section 120B, 302, 460 and 382 IPC. Three other accused
namely A-2 Kailash Chand, A-4 Gyanchand and A-5 Radha Devi
were also tried in the same case for the alleged offence
under Section 411 IPC. The Sessions Court found accused Nos.
1 and 3/appellants guilty of the charges framed and
sentenced them each to suffer imprisonment for life and to
pay a fine of Rs.5000/- each in default to undergo rigorous
imprisonment for six months each for the offence under
Section 302 read with Section 120B IPC and further sentenced
them each to undergo rigorous imprisonment for eight years
and to pay a fine of Rs.1000/- each and in default to undergo
rigorous imprisonment for six months each for the offence
under Section 460 IPC and also sentenced them each to undergo
rigorous imprisonment for eight years and to pay a fine of
Rs.1000/- each and in default to undergo rigorous
imprisonment for six months each for the offence under
Section 382 IPC and ordered the sentences to run
concurrently. The Sessions Court also found accused Nos.2,
4 and 5 guilty of the offence under Section 411 IPC and
sentenced them each to undergo rigorous imprisonment for two
years and each to pay a fine of Rs.500 and in default each to
undergo rigorous imprisonment for three months.
3. Aggrieved by the conviction and sentence accused Nos.1 to 5
preferred appeal in Criminal Appeal No.664 of 2001 and the
High Court by judgment dated 2.5.2007 dismissed the appeal
preferred by the accused No.1 Atma Ram and accused No.3 Vijay
Kumar/appellants herein and at the same time allowed the
appeal pertaining to accused No.2 Kailash Chand, A-4 Gyan
Chand and Accused No.5 Radha Devi and acquitted them of
charge under Section 411 IPC. Challenging their conviction
and sentence accused No.1 Atma Ram and accused No.3 Vijay
Kumar have preferred the present appeals.
4. Briefly the case of the prosecution is as follows:
Accused No.1 Atma Ram was working as a Doctor in the
Government Hospital in village Chhapoli and Keshar Bai was posted
as a mid-wife in the same hospital and a month prior to occurrence
she started residing in a room on the ground floor under the stair-
case of the hospital. She used to give loan on interest on the
mortgage of gold and silver ornaments. PW 17 Sweeper Basanti Lal
was also residing in a corner room on the ground floor of the
hospital. A-1 Atma Ram was residing on the first floor of the same
hospital. Accused No.3 Vijay Kumar was his brother-in-law and he
was also residing with him. On 11.11.1985 PW 17 Basanti Lal
noticed Kesar Bai sitting outside in the hospital and also noticed
return of Atma Ram to Hospital. Dr.Atma Ram forwarded a written
report on November 12, 1985 through Peon Nand Lal to Udaipurbati
Police Station (Jhunjhunu) informing about the murder of Keshar
Bai. In the report A-1 Atma Ram stated that in the preceding night
around 12.30 a.m. he suddenly woke-up hearing voice of sweeper
Basanti Lal who was asking to open the door of his room which was
bolted from outside. Atma Ram then got up and proceeded towards the
room of Basanti Lal but the door of Atma Ram’s staircase was also
bolted from outside, therefore he could not go out and awoke Vijay
Kumar, who was residing with him. Vijay Kumar then scaled the roof
and unbolted the room of Basanti Lal. Thereafter all the three went
down through the staircase and went towards Nohra. They found the
room of Keshar Bai open. They called Keshar Bai, but she did not
respond. Therefore they entered inside the room and saw Keshar Bai
lying dead in naked condition in a pool of blood. Her mouth was
tied with saree. On her legs a box was lying open. Based on the
report a case under Exh.P.13 First Information Report came to be
registered under Section 302 and 460 IPC and the investigation
commenced.
After some time the investigation was transferred to CID
(CB) Jaipur.
PW 85 Investigation Officer Shiv Prasad Sharma
arrested A-1 Atma Ram on 9.4.1986 and on inquiry A-1 Atma Ram gave
Exh.P105 information leading to recovery of ornaments under Exh.P8
list.
Pursuant to his further information given under Exh. P106
one knife and screw driver came to be recovered under Exh.P.30. PW
85 Investigation Officer Shiv Prasad Sharma arrested A-3 Vijay
Kumar on 26.4.1986 and on inquiry A-3 Vijay Kumar gave Exh.P.111
information leading to recovery of ornaments/articles under Exh. P5
Memo.
The Investigation Officer arrested the other three accused
and during investigation examined the witnesses and recorded
statements.
PW 83 Tahsildar Durga Prasad Sharma conducted
identification proceedings of the recovered articles and prepared
72 identification reports. After completion of the investigation
the charge-sheet came to be filed against the accused persons.
During the trial the prosecution examined 86 witnesses and marked
the relevant documents in support of its case.
A-1 Atma Ram
examined himself as a defence witness, besides 4 other witnesses
were examined on the side of defence. The trial Court found
accused guilty of the charges and sentenced them as narrated above,
on appeal the conviction and sentences imposed on A-1 Atma Ram and
A-3 Vijay Kumar were confirmed and the other accused were
acquitted. A-1 Atma Ram and A-3 Vijay Kumar have challenged the
same in these appeals.
5. We heard Mrs. Mridul Aggarwal the learned amicus curie
appearing on behalf of the appellant Atma Ram and Mr.
Bhagwati Prasad the learned senior counsel appearing for the
appellant Vijay Kumar and also learned Additional Advocate
General appearing for the respondent-State.
6. The prosecution case is that the appellants A-1 Atma Ram and
A-3 Vijay Kumar conspired and murdered Keshar Bai and stolen
the ornaments/articles possessed by her. Nobody has
witnessed the occurrence and the case rests on circumstantial
evidence. 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. The prosecution in order to prove its case mainly relied on
the following circumstances:
i) Keshar Bai died of homicidal violence.
ii) A-1 Atma Ram, threatened Keshar Bai of possible income-tax
raid and seizure of ornaments possessed by her and
persuaded her to shift her residence from village to
hospital premise with her belongings.
iii) Accused Radha used to demand the ornaments for wearing from
Keshar Bai.
iv) On the information furnished by A-1 Atma Ram and A-3 Vijay
Kumar, upon their arrest, the ornaments pledged by various
persons with Keshar Bai, got recovered from their
possession.
8. PW 14 Dr. Dinesh Singh Choudhary conducted post-mortem on the
body of Keshar Bai and found the following ante mortem
injuries :
i) Incised wound 1”x1” x 1.5” towards right of neck
below jaw till trachea
ii) Three Incised wounds on Lt. Side neck till trachea
each measuring as 1¼” x ½” x 1”, in the middle 1” x
½” x 1 of below ½” x ¼” x ¼”
iii) Incised wound 2” x ½” x ½” above Rt. Breast
iv) Incised wound 2” x ½” x ½” above Lt. Breast
v) Three incised wounds below Right Breast ½” x ¼” x ¼”
IInd 1” x ½” x ¼” IIIrd ½” x ¼” x ¼”
vi) Incised wound Lt. hand from behind 1” x ½” x ½”
vii) Incised wound Rt. hand from behind 1” x ½” x ½”
According to him the cause of death was hemorrhage due to cut of
neck vessels. Exh. P24 is the post mortem report issued by him.
From the medical evidence it is clear that death of Keshar Bai
was homicidal in nature and the first circumstance stood
established.
9. Circumstances No.2 and 3 are taken up for discussion
together.
PW7 Kishore Singh is a resident of village
Chhapoli and he has testified that Keshar Bai was a nurse in
the hospital and was residing as a tenant in his house on
rent of Rs.10 per month for more than a decade and she used
to lend loan on interest on mortgage of ornaments and she
used to keep the ornaments in a box in the house and a month
prior to the occurrence she shifted her residence from his
house to the hospital with all her belongings.
10. PW 10 Jaswant Singh is the brother-in-law of Keshar Bai and
in his examination-in-chief he has stated that Keshar Bai
kept her ornaments in the locker of a bank and A-1 Atma Ram
told her that the income-tax people could raid the bank and
seize her ornaments and hence Keshar Bai took the ornaments
with her. PW 10 has further stated that Keshar Bai used to
tell him that accused Radha demanded ornaments from her for
wearing and would dance after wearing the same.
In the cross
examination PW 10 Jaswant Singh has stated that he did not
tell in his statement to the police during investigation
about the threat made by A1-Atma Ram to Keshar Bai regarding
the possibility of an income-tax raid and seizure of
ornaments and also the demand of ornaments made by accused
Radha to Keshar Bai and her wearing the same.
This Court has
to form its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.
This witness PW 10 Jaswant Singh was admittedly
examined by Investigation Officer during investigation and in
that statement he has not stated the facts which he now for
the first time stated before the Trial Court.
This raises
a serious doubt as to the veracity of the said facts [See
Khalil Khan vs. State of M.P. (2003) 11 SCC 19].
In other
words this witness has made material improvement while
deposing in the Court and such evidence cannot be safe to
rely upon. Thus the evidence adduced by the prosecution to
prove the circumstances 2 and 3 does not pass the test of
credibility and is liable for rejection.
11. The remaining last circumstance pertains to the recoveries
made pursuant to the disclosure made by the appellants. The
investigation officer PW 85 Shiv Prasad Sharma has claimed
that he arrested A-1 Atma Ram on 9.4.1986 and on inquiry he
gave Exh. 105 information which led to the recovery of
ornaments mentioned in Exh.P8 -list in the presence of
witnesses.
PW 5 Santbax Singh and PW6 Madanlal Bhavaria are
the witnesses to the said recovery. Both of them have
testified that accused No.1 Atma Ram took them and the police
to his house and entered a room in the court-yard and opened
an almirah and took out a plastic bag and handed it over,
which contained ornaments of gold and silver and the same
was recovered by Memo under Exh. P8 list. The further
testimony of the investigation officer is that he arrested A-
3 Vijay Kumar on 26.4.1986 and on inquiry he gave Exh.P 111
information which led to the recovery of ornaments under
Exh.P5 Memo in the presence of witnesses. PW4 Tota Ram is
the witness for the said recovery and according to him A-3
Vijay Kumar took him and the police to his house and produced
silver and gold articles and they were recovered under Exh.P5
Memo, which he attested. The relevant portion of Exh.P5 Memo
reads as follows:
“Accused Vijay asked for key of lock of Baithak (room)
from father through his brother’s wife of Kailash, and
opened lock and then entered towards right side of
Baithak. Where in a Almirah a box (old) was found and
opened it, and found a cloth bag (Potali) which was tied
up. Accused told that the potali contains ornaments.
When potali was opened found the following ornaments of
gold and silver and a wrist watch….”
12. Both the above said recoveries have been made from the
respective houses of the accused/appellants where their
families were residing. In fact A-3 Vijay Kumar obtained the
key from his father for opening the lock. In such
circumstances it cannot be said that the said articles were
in the exclusive possession of the accused/appellants and
they came to be recovered only on the information furnished
by them. The learned senior counsel and the amicus curie
appearing for the appellants strenuously contended that there
was no fair identification proceedings of property conducted
by Tahsildar and firstly it was conducted belatedly and
secondly the witnesses were already shown the articles and
thirdly there is no proof that those articles were kept with
deceased Keshar Bai and the recovery and -identification are
unreliable shaky and fake. In this regard reliance was
placed on the following decision in State of Vindhya Pradesh
vs. Sarua Munni Dhimar and others [AIR 1954 V.P. (Vol.41 CN
15)]. The relevant portion reads thus :
“Further as has been observed in connection with
identification of accused persons no presumption
attaches to identification proceedings of property. It
is for the prosecution to establish affirmatively that
every necessary precaution was taken to ensure fair
identification. The most essential requirement is that
the witnesses should not have had an opportunity of
seeing the property after its recovery and before its
identification before the Magistrate. For that purpose
it is necessary to seal the property as soon as it is
recovered and to keep it in a sealed condition till it
is produced before the Magistrate. The police officers
who take the sealed bundles to the thana after recovery
and who take it to the Magistrate for identification
proceedings should be examined to prove that the sealed
bundles were not tampered with in any way. The sealed
bundles should be opened in the presence of the
Magistrate conducting the identification proceedings and
he should depose about it. The property to be mixed
with the property to be identified should also be sealed
some days before witnesses are called and the bundle
containing it should also be opened in the presence of
the Magistrate who should testify about it in court.
Further as has been observed in the case of
identification proceedings of persons the result of
identification as well as the fact whether the property
mixed was similar to the property identified should be
entered in the memorandum by the Magistrate in his own
hand.”
13. In the present case about 131 articles of gold and silver
were recovered.
About 60 witnesses have testified the
pledging of their articles with Keshar Bai.
The ornaments
like ‘Gorla’, ‘Chain of gold’, ‘madalia” ‘ring’, ‘Bitti’,
`Karia’, ‘Pahunchi’, ‘hasli’ etc. are of same kind lookwise
having no special marks on them.
Learned senior counsel
appearing for A-3 Vijay Kumar brought to our notice that one
Pahunchi as per Exh.P5 recovery Memo, which contained 59
Mania (Moti) was recovered along with 6 silver ornaments
mentioned therein,
whereas in Exh.P.68 a copy of Malkhana
register the six silver articles alone are found mentioned
and there is no mention of the gold ornament ‘pahunchi’ as
having kept safely in the Malkhana and it is not known as to
where it was kept and produced.
On a perusal of the said
documents, this contention cannot be easily brushed aside.
It is the further submission of the learned senior counsel
that as per the prosecution case
PW 28 Smt. Raj Kanwar has
pledged above said ‘pahunchi’ with Keshar Bai and she has
stated in her testimony that her ‘pahunchi’ was of 40 Mania
(Moti). If it is so the recovered ‘pahunchi’ is not that of
PW 28 Smt. Raj Kanwar. It is doubtful as to whether this
recovery claimed by the prosecution is established.
14. It is also the contention of the learned senior counsel that
four witnesses examined claimed one ornament as theirs.
The
identification proceedings of articles was conducted by PW 83
Tahsildar Durga Prasad Sharma in Tehsil and he has claimed
to have prepared 72 identification reports.
In the cross-
examination he has admitted that there were policemen present
at the time of identification and he did not know the
articles brought to him were in sealed packets or in open
condition and he did not remember whether seal used on the
packets was official seal since 12 years have already passed.
Even he did not know as to who has arranged for articles
having similarity to the seized articles for the purpose of
identification and identification proceedings were completed
in a single day.
The Tahsildar even after looking at the
Memo was unable to say how many articles of each kind were
mixed up with articles to be identified and whether similar
articles were new or old, used or unused etc.
None of the
precaution that ought to have been taken to ensure fair
identification was ever taken and no weight can be attached
to the evidence of identification of property.
Though the
trial court has observed in the judgment about the lack of
proper identification of the articles, it erroneously
proceeded further to accept the same.
Recovery of weapons
namely knife and screw-driver claimed to have been made on
the information given by A-1 Atma Ram is also doubtful.
Even
assuming to be true that recovery of certain incriminating
articles were made at the instance of the accused under
Section 27 of the Evidence Act, that by itself cannot
form the basis of conviction [See Wakkar vs. State of U.P.
(2011) 3 SCC 306].
15. In this background we are of the considered opinion that both
the Courts below fell in error in coming to the conclusion
that the prosecution has established its case based on
circumstantial evidence beyond all reasonable doubt. Benefit
of doubt will have to be given to both the appellants.
16. In the result both the appeals are allowed and the conviction
and sentence imposed on the appellants by the courts below
are set aside and they are acquitted of the charges. They
are directed to be released from the custody forthwith unless
required otherwise.
…………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
February 18, 2014
Lack of credibility of witness and is liable for rejection. =
The prosecution case is that the appellants A-1 Atma Ram and
A-3 Vijay Kumar conspired and murdered Keshar Bai and stolen
the ornaments/articles possessed by her. Nobody has
witnessed the occurrence and the case rests on circumstantial
evidence. They found the
room of Keshar Bai open. They called Keshar Bai, but she did not
respond. Therefore they entered inside the room and saw Keshar Bai
lying dead in naked condition in a pool of blood. Her mouth was
tied with saree. On her legs a box was lying open. Based on the
report a case under Exh.P.13 First Information Report came to be
registered under Section 302 and 460 IPC and the investigation
commenced.=
In the cross
examination PW 10 Jaswant Singh has stated that he did not
tell in his statement to the police during investigation
about the threat made by A1-Atma Ram to Keshar Bai regarding
the possibility of an income-tax raid and seizure of
ornaments and also the demand of ornaments made by accused
Radha to Keshar Bai and her wearing the same.
This Court has
to form its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.
This witness PW 10 Jaswant Singh was admittedly
examined by Investigation Officer during investigation and in
that statement he has not stated the facts which he now for
the first time stated before the Trial Court.
This raises
a serious doubt as to the veracity of the said facts [See
Khalil Khan vs. State of M.P. (2003) 11 SCC 19].
In other
words this witness has made material improvement while
deposing in the Court and such evidence cannot be safe to
rely upon. Thus the evidence adduced by the prosecution to
prove the circumstances 2 and 3 does not pass the test of
credibility and is liable for rejection.
Property identification parade - failed to establish confidence on prosecution =
in State of Vindhya Pradesh
vs. Sarua Munni Dhimar and others [AIR 1954 V.P. (Vol.41 CN
15)]. The relevant portion reads thus :
“Further as has been observed in connection with
identification of accused persons no presumption
attaches to identification proceedings of property. It
is for the prosecution to establish affirmatively that
every necessary precaution was taken to ensure fair
identification. The most essential requirement is that
the witnesses should not have had an opportunity of
seeing the property after its recovery and before its
identification before the Magistrate. For that purpose
it is necessary to seal the property as soon as it is
recovered and to keep it in a sealed condition till it
is produced before the Magistrate. The police officers
who take the sealed bundles to the thana after recovery
and who take it to the Magistrate for identification
proceedings should be examined to prove that the sealed
bundles were not tampered with in any way. The sealed
bundles should be opened in the presence of the
Magistrate conducting the identification proceedings and
he should depose about it. The property to be mixed
with the property to be identified should also be sealed
some days before witnesses are called and the bundle
containing it should also be opened in the presence of
the Magistrate who should testify about it in court.
Further as has been observed in the case of
identification proceedings of persons the result of
identification as well as the fact whether the property
mixed was similar to the property identified should be
entered in the memorandum by the Magistrate in his own
hand.”
13. In the present case about 131 articles of gold and silver
were recovered.
About 60 witnesses have testified the
pledging of their articles with Keshar Bai.
The ornaments
like ‘Gorla’, ‘Chain of gold’, ‘madalia” ‘ring’, ‘Bitti’,
`Karia’, ‘Pahunchi’, ‘hasli’ etc. are of same kind lookwise
having no special marks on them.
Learned senior counsel
appearing for A-3 Vijay Kumar brought to our notice that one
Pahunchi as per Exh.P5 recovery Memo, which contained 59
Mania (Moti) was recovered along with 6 silver ornaments
mentioned therein,
whereas in Exh.P.68 a copy of Malkhana
register the six silver articles alone are found mentioned
and there is no mention of the gold ornament ‘pahunchi’ as
having kept safely in the Malkhana and it is not known as to
where it was kept and produced.
On a perusal of the said
documents, this contention cannot be easily brushed aside.
It is the further submission of the learned senior counsel
that as per the prosecution case
PW 28 Smt. Raj Kanwar has
pledged above said ‘pahunchi’ with Keshar Bai and she has
stated in her testimony that her ‘pahunchi’ was of 40 Mania
(Moti). If it is so the recovered ‘pahunchi’ is not that of
PW 28 Smt. Raj Kanwar. It is doubtful as to whether this
recovery claimed by the prosecution is established.
four witnesses examined claimed one ornament as theirs.
The
identification proceedings of articles was conducted by PW 83
Tahsildar Durga Prasad Sharma in Tehsil and he has claimed
to have prepared 72 identification reports.
In the cross-
examination he has admitted that there were policemen present
at the time of identification and he did not know the
articles brought to him were in sealed packets or in open
condition and he did not remember whether seal used on the
packets was official seal since 12 years have already passed.
Even he did not know as to who has arranged for articles
having similarity to the seized articles for the purpose of
identification and identification proceedings were completed
in a single day.
The Tahsildar even after looking at the
Memo was unable to say how many articles of each kind were
mixed up with articles to be identified and whether similar
articles were new or old, used or unused etc.
None of the
precaution that ought to have been taken to ensure fair
identification was ever taken and no weight can be attached
to the evidence of identification of property.
Though the
trial court has observed in the judgment about the lack of
proper identification of the articles, it erroneously
proceeded further to accept the same.
Recovery of weapons
namely knife and screw-driver claimed to have been made on
the information given by A-1 Atma Ram is also doubtful.
Even
assuming to be true that recovery of certain incriminating
articles were made at the instance of the accused under
Section 27 of the Evidence Act, that by itself cannot
form the basis of conviction
[See Wakkar vs. State of U.P. (2011) 3 SCC 306].
Conclusion :
In this background we are of the considered opinion that both
the Courts below fell in error in coming to the conclusion
that the prosecution has established its case based on
circumstantial evidence beyond all reasonable doubt. Benefit
of doubt will have to be given to both the appellants.
16. In the result both the appeals are allowed and the conviction
and sentence imposed on the appellants by the courts below
are set aside and they are acquitted of the charges. They
are directed to be released from the custody forthwith unless
required otherwise.
the Courts below fell in error in coming to the conclusion
that the prosecution has established its case based on
circumstantial evidence beyond all reasonable doubt. Benefit
of doubt will have to be given to both the appellants.
16. In the result both the appeals are allowed and the conviction
and sentence imposed on the appellants by the courts below
are set aside and they are acquitted of the charges. They
are directed to be released from the custody forthwith unless
required otherwise.
2014 (Feb.Part) judis.nic.in/supremecourt/filename=41231
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2009
With
CRIMINAL APPEAL NO.1363 of 2009
Vijay Kumar .. Appellant(s)
versus
State of Rajasthan .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. These two appeals are preferred against the judgment of the
High Court of Judicature of Rajasthan at Jaipur Bench in DB
Criminal Appeal No.664 of 2001.
2. The appellant Dr. Atma Ram in Criminal Appeal No.1363 of 2009
is the accused No.1 and the appellant Vijay Kumar in
Criminal Appeal No.441 of 2009 is accused No.3 in the
Sessions Case No.28 of 2001 (38/1986) on the file of
Additional Sessions Judge (Fast Track) Jhunjhunu, Rajasthan
and they were tried for the alleged offences under
Section 120B, 302, 460 and 382 IPC. Three other accused
namely A-2 Kailash Chand, A-4 Gyanchand and A-5 Radha Devi
were also tried in the same case for the alleged offence
under Section 411 IPC. The Sessions Court found accused Nos.
1 and 3/appellants guilty of the charges framed and
sentenced them each to suffer imprisonment for life and to
pay a fine of Rs.5000/- each in default to undergo rigorous
imprisonment for six months each for the offence under
Section 302 read with Section 120B IPC and further sentenced
them each to undergo rigorous imprisonment for eight years
and to pay a fine of Rs.1000/- each and in default to undergo
rigorous imprisonment for six months each for the offence
under Section 460 IPC and also sentenced them each to undergo
rigorous imprisonment for eight years and to pay a fine of
Rs.1000/- each and in default to undergo rigorous
imprisonment for six months each for the offence under
Section 382 IPC and ordered the sentences to run
concurrently. The Sessions Court also found accused Nos.2,
4 and 5 guilty of the offence under Section 411 IPC and
sentenced them each to undergo rigorous imprisonment for two
years and each to pay a fine of Rs.500 and in default each to
undergo rigorous imprisonment for three months.
3. Aggrieved by the conviction and sentence accused Nos.1 to 5
preferred appeal in Criminal Appeal No.664 of 2001 and the
High Court by judgment dated 2.5.2007 dismissed the appeal
preferred by the accused No.1 Atma Ram and accused No.3 Vijay
Kumar/appellants herein and at the same time allowed the
appeal pertaining to accused No.2 Kailash Chand, A-4 Gyan
Chand and Accused No.5 Radha Devi and acquitted them of
charge under Section 411 IPC. Challenging their conviction
and sentence accused No.1 Atma Ram and accused No.3 Vijay
Kumar have preferred the present appeals.
4. Briefly the case of the prosecution is as follows:
Accused No.1 Atma Ram was working as a Doctor in the
Government Hospital in village Chhapoli and Keshar Bai was posted
as a mid-wife in the same hospital and a month prior to occurrence
she started residing in a room on the ground floor under the stair-
case of the hospital. She used to give loan on interest on the
mortgage of gold and silver ornaments. PW 17 Sweeper Basanti Lal
was also residing in a corner room on the ground floor of the
hospital. A-1 Atma Ram was residing on the first floor of the same
hospital. Accused No.3 Vijay Kumar was his brother-in-law and he
was also residing with him. On 11.11.1985 PW 17 Basanti Lal
noticed Kesar Bai sitting outside in the hospital and also noticed
return of Atma Ram to Hospital. Dr.Atma Ram forwarded a written
report on November 12, 1985 through Peon Nand Lal to Udaipurbati
Police Station (Jhunjhunu) informing about the murder of Keshar
Bai. In the report A-1 Atma Ram stated that in the preceding night
around 12.30 a.m. he suddenly woke-up hearing voice of sweeper
Basanti Lal who was asking to open the door of his room which was
bolted from outside. Atma Ram then got up and proceeded towards the
room of Basanti Lal but the door of Atma Ram’s staircase was also
bolted from outside, therefore he could not go out and awoke Vijay
Kumar, who was residing with him. Vijay Kumar then scaled the roof
and unbolted the room of Basanti Lal. Thereafter all the three went
down through the staircase and went towards Nohra. They found the
room of Keshar Bai open. They called Keshar Bai, but she did not
respond. Therefore they entered inside the room and saw Keshar Bai
lying dead in naked condition in a pool of blood. Her mouth was
tied with saree. On her legs a box was lying open. Based on the
report a case under Exh.P.13 First Information Report came to be
registered under Section 302 and 460 IPC and the investigation
commenced.
After some time the investigation was transferred to CID
(CB) Jaipur.
PW 85 Investigation Officer Shiv Prasad Sharma
arrested A-1 Atma Ram on 9.4.1986 and on inquiry A-1 Atma Ram gave
Exh.P105 information leading to recovery of ornaments under Exh.P8
list.
Pursuant to his further information given under Exh. P106
one knife and screw driver came to be recovered under Exh.P.30. PW
85 Investigation Officer Shiv Prasad Sharma arrested A-3 Vijay
Kumar on 26.4.1986 and on inquiry A-3 Vijay Kumar gave Exh.P.111
information leading to recovery of ornaments/articles under Exh. P5
Memo.
The Investigation Officer arrested the other three accused
and during investigation examined the witnesses and recorded
statements.
PW 83 Tahsildar Durga Prasad Sharma conducted
identification proceedings of the recovered articles and prepared
72 identification reports. After completion of the investigation
the charge-sheet came to be filed against the accused persons.
During the trial the prosecution examined 86 witnesses and marked
the relevant documents in support of its case.
A-1 Atma Ram
examined himself as a defence witness, besides 4 other witnesses
were examined on the side of defence. The trial Court found
accused guilty of the charges and sentenced them as narrated above,
on appeal the conviction and sentences imposed on A-1 Atma Ram and
A-3 Vijay Kumar were confirmed and the other accused were
acquitted. A-1 Atma Ram and A-3 Vijay Kumar have challenged the
same in these appeals.
5. We heard Mrs. Mridul Aggarwal the learned amicus curie
appearing on behalf of the appellant Atma Ram and Mr.
Bhagwati Prasad the learned senior counsel appearing for the
appellant Vijay Kumar and also learned Additional Advocate
General appearing for the respondent-State.
6. The prosecution case is that the appellants A-1 Atma Ram and
A-3 Vijay Kumar conspired and murdered Keshar Bai and stolen
the ornaments/articles possessed by her. Nobody has
witnessed the occurrence and the case rests on circumstantial
evidence. 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. The prosecution in order to prove its case mainly relied on
the following circumstances:
i) Keshar Bai died of homicidal violence.
ii) A-1 Atma Ram, threatened Keshar Bai of possible income-tax
raid and seizure of ornaments possessed by her and
persuaded her to shift her residence from village to
hospital premise with her belongings.
iii) Accused Radha used to demand the ornaments for wearing from
Keshar Bai.
iv) On the information furnished by A-1 Atma Ram and A-3 Vijay
Kumar, upon their arrest, the ornaments pledged by various
persons with Keshar Bai, got recovered from their
possession.
8. PW 14 Dr. Dinesh Singh Choudhary conducted post-mortem on the
body of Keshar Bai and found the following ante mortem
injuries :
i) Incised wound 1”x1” x 1.5” towards right of neck
below jaw till trachea
ii) Three Incised wounds on Lt. Side neck till trachea
each measuring as 1¼” x ½” x 1”, in the middle 1” x
½” x 1 of below ½” x ¼” x ¼”
iii) Incised wound 2” x ½” x ½” above Rt. Breast
iv) Incised wound 2” x ½” x ½” above Lt. Breast
v) Three incised wounds below Right Breast ½” x ¼” x ¼”
IInd 1” x ½” x ¼” IIIrd ½” x ¼” x ¼”
vi) Incised wound Lt. hand from behind 1” x ½” x ½”
vii) Incised wound Rt. hand from behind 1” x ½” x ½”
According to him the cause of death was hemorrhage due to cut of
neck vessels. Exh. P24 is the post mortem report issued by him.
From the medical evidence it is clear that death of Keshar Bai
was homicidal in nature and the first circumstance stood
established.
9. Circumstances No.2 and 3 are taken up for discussion
together.
PW7 Kishore Singh is a resident of village
Chhapoli and he has testified that Keshar Bai was a nurse in
the hospital and was residing as a tenant in his house on
rent of Rs.10 per month for more than a decade and she used
to lend loan on interest on mortgage of ornaments and she
used to keep the ornaments in a box in the house and a month
prior to the occurrence she shifted her residence from his
house to the hospital with all her belongings.
10. PW 10 Jaswant Singh is the brother-in-law of Keshar Bai and
in his examination-in-chief he has stated that Keshar Bai
kept her ornaments in the locker of a bank and A-1 Atma Ram
told her that the income-tax people could raid the bank and
seize her ornaments and hence Keshar Bai took the ornaments
with her. PW 10 has further stated that Keshar Bai used to
tell him that accused Radha demanded ornaments from her for
wearing and would dance after wearing the same.
In the cross
examination PW 10 Jaswant Singh has stated that he did not
tell in his statement to the police during investigation
about the threat made by A1-Atma Ram to Keshar Bai regarding
the possibility of an income-tax raid and seizure of
ornaments and also the demand of ornaments made by accused
Radha to Keshar Bai and her wearing the same.
This Court has
to form its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.
This witness PW 10 Jaswant Singh was admittedly
examined by Investigation Officer during investigation and in
that statement he has not stated the facts which he now for
the first time stated before the Trial Court.
This raises
a serious doubt as to the veracity of the said facts [See
Khalil Khan vs. State of M.P. (2003) 11 SCC 19].
In other
words this witness has made material improvement while
deposing in the Court and such evidence cannot be safe to
rely upon. Thus the evidence adduced by the prosecution to
prove the circumstances 2 and 3 does not pass the test of
credibility and is liable for rejection.
11. The remaining last circumstance pertains to the recoveries
made pursuant to the disclosure made by the appellants. The
investigation officer PW 85 Shiv Prasad Sharma has claimed
that he arrested A-1 Atma Ram on 9.4.1986 and on inquiry he
gave Exh. 105 information which led to the recovery of
ornaments mentioned in Exh.P8 -list in the presence of
witnesses.
PW 5 Santbax Singh and PW6 Madanlal Bhavaria are
the witnesses to the said recovery. Both of them have
testified that accused No.1 Atma Ram took them and the police
to his house and entered a room in the court-yard and opened
an almirah and took out a plastic bag and handed it over,
which contained ornaments of gold and silver and the same
was recovered by Memo under Exh. P8 list. The further
testimony of the investigation officer is that he arrested A-
3 Vijay Kumar on 26.4.1986 and on inquiry he gave Exh.P 111
information which led to the recovery of ornaments under
Exh.P5 Memo in the presence of witnesses. PW4 Tota Ram is
the witness for the said recovery and according to him A-3
Vijay Kumar took him and the police to his house and produced
silver and gold articles and they were recovered under Exh.P5
Memo, which he attested. The relevant portion of Exh.P5 Memo
reads as follows:
“Accused Vijay asked for key of lock of Baithak (room)
from father through his brother’s wife of Kailash, and
opened lock and then entered towards right side of
Baithak. Where in a Almirah a box (old) was found and
opened it, and found a cloth bag (Potali) which was tied
up. Accused told that the potali contains ornaments.
When potali was opened found the following ornaments of
gold and silver and a wrist watch….”
12. Both the above said recoveries have been made from the
respective houses of the accused/appellants where their
families were residing. In fact A-3 Vijay Kumar obtained the
key from his father for opening the lock. In such
circumstances it cannot be said that the said articles were
in the exclusive possession of the accused/appellants and
they came to be recovered only on the information furnished
by them. The learned senior counsel and the amicus curie
appearing for the appellants strenuously contended that there
was no fair identification proceedings of property conducted
by Tahsildar and firstly it was conducted belatedly and
secondly the witnesses were already shown the articles and
thirdly there is no proof that those articles were kept with
deceased Keshar Bai and the recovery and -identification are
unreliable shaky and fake. In this regard reliance was
placed on the following decision in State of Vindhya Pradesh
vs. Sarua Munni Dhimar and others [AIR 1954 V.P. (Vol.41 CN
15)]. The relevant portion reads thus :
“Further as has been observed in connection with
identification of accused persons no presumption
attaches to identification proceedings of property. It
is for the prosecution to establish affirmatively that
every necessary precaution was taken to ensure fair
identification. The most essential requirement is that
the witnesses should not have had an opportunity of
seeing the property after its recovery and before its
identification before the Magistrate. For that purpose
it is necessary to seal the property as soon as it is
recovered and to keep it in a sealed condition till it
is produced before the Magistrate. The police officers
who take the sealed bundles to the thana after recovery
and who take it to the Magistrate for identification
proceedings should be examined to prove that the sealed
bundles were not tampered with in any way. The sealed
bundles should be opened in the presence of the
Magistrate conducting the identification proceedings and
he should depose about it. The property to be mixed
with the property to be identified should also be sealed
some days before witnesses are called and the bundle
containing it should also be opened in the presence of
the Magistrate who should testify about it in court.
Further as has been observed in the case of
identification proceedings of persons the result of
identification as well as the fact whether the property
mixed was similar to the property identified should be
entered in the memorandum by the Magistrate in his own
hand.”
13. In the present case about 131 articles of gold and silver
were recovered.
About 60 witnesses have testified the
pledging of their articles with Keshar Bai.
The ornaments
like ‘Gorla’, ‘Chain of gold’, ‘madalia” ‘ring’, ‘Bitti’,
`Karia’, ‘Pahunchi’, ‘hasli’ etc. are of same kind lookwise
having no special marks on them.
Learned senior counsel
appearing for A-3 Vijay Kumar brought to our notice that one
Pahunchi as per Exh.P5 recovery Memo, which contained 59
Mania (Moti) was recovered along with 6 silver ornaments
mentioned therein,
whereas in Exh.P.68 a copy of Malkhana
register the six silver articles alone are found mentioned
and there is no mention of the gold ornament ‘pahunchi’ as
having kept safely in the Malkhana and it is not known as to
where it was kept and produced.
On a perusal of the said
documents, this contention cannot be easily brushed aside.
It is the further submission of the learned senior counsel
that as per the prosecution case
PW 28 Smt. Raj Kanwar has
pledged above said ‘pahunchi’ with Keshar Bai and she has
stated in her testimony that her ‘pahunchi’ was of 40 Mania
(Moti). If it is so the recovered ‘pahunchi’ is not that of
PW 28 Smt. Raj Kanwar. It is doubtful as to whether this
recovery claimed by the prosecution is established.
14. It is also the contention of the learned senior counsel that
four witnesses examined claimed one ornament as theirs.
The
identification proceedings of articles was conducted by PW 83
Tahsildar Durga Prasad Sharma in Tehsil and he has claimed
to have prepared 72 identification reports.
In the cross-
examination he has admitted that there were policemen present
at the time of identification and he did not know the
articles brought to him were in sealed packets or in open
condition and he did not remember whether seal used on the
packets was official seal since 12 years have already passed.
Even he did not know as to who has arranged for articles
having similarity to the seized articles for the purpose of
identification and identification proceedings were completed
in a single day.
The Tahsildar even after looking at the
Memo was unable to say how many articles of each kind were
mixed up with articles to be identified and whether similar
articles were new or old, used or unused etc.
None of the
precaution that ought to have been taken to ensure fair
identification was ever taken and no weight can be attached
to the evidence of identification of property.
Though the
trial court has observed in the judgment about the lack of
proper identification of the articles, it erroneously
proceeded further to accept the same.
Recovery of weapons
namely knife and screw-driver claimed to have been made on
the information given by A-1 Atma Ram is also doubtful.
Even
assuming to be true that recovery of certain incriminating
articles were made at the instance of the accused under
Section 27 of the Evidence Act, that by itself cannot
form the basis of conviction [See Wakkar vs. State of U.P.
(2011) 3 SCC 306].
15. In this background we are of the considered opinion that both
the Courts below fell in error in coming to the conclusion
that the prosecution has established its case based on
circumstantial evidence beyond all reasonable doubt. Benefit
of doubt will have to be given to both the appellants.
16. In the result both the appeals are allowed and the conviction
and sentence imposed on the appellants by the courts below
are set aside and they are acquitted of the charges. They
are directed to be released from the custody forthwith unless
required otherwise.
…………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
February 18, 2014
