Devi Lal vs The State Of Rajasthan

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 148 OF 2010

DEVI LAL ……..Appellant(s)

VERSUS

STATE OF RAJASTHAN …….Respondent(s)

WITH

CRIMINAL APPEAL NO(s). 149 OF 2010

BABU LAL ………..Appellant(s)

VERSUS STATE OF RAJASTHAN .…….Respondent(s)

JUDGMENT

Rastogi, J.

Both the appellants, Babu Lal and Devi Lal are aggrieved by

the affirmation of their conviction under Section 302 and other

with the aid of Section 120 B of the Indian Penal Code and

sentenced to life imprisonment under the impugned Judgment Signature Not Verified Digitally signed by

dated 30th January, 2009, seek this Court’s intervention. DEEPAK SINGH Date: 2019.01.09 10:09:28 IST Reason: 1

2. Brief facts of the case, as per prosecution, post­incident, are

that on 8th February 1999 at 7.15 p.m. complainant Vijay Singh

(PW­2) submitted a written report (Exhibit P­1) at Police Station,

Nimbahera, informing that he and his cousin brother Dharam

Chand(deceased) were living with their families in separate

houses in village Binota. In the evening of 7 th February, 1999 at

6.00 p.m., daughter of the deceased Dharam Chand informed

him on telephone that her father, who had gone to Bhagwanpura

on Motor Cycle, had not returned. The complainant, along with

other neighbours, went to search deceased Dharam Chand on 8 th

February, 1999 and at village Bhagwanpura, outside the godown

of brother deceased Dharam Chand, found his motorcycle but his

whereabouts were not made known. On his written complaint, a

missing person report (Exh. P­75) was lodged. The Investigating

Officer, in the course of enquiry, made from Shambhu Singh

(PW­3), revealed that on 7 th February, 1999, accused Babu Lal

had hired his jeep. Babu Lal and his labourers Logar and

Bagdiram carried drum which contained wheat. The drum was

alighted from the jeep on way near field of Logar, making

Shambhu Singh to sit at the house of Logar and on excuse of

responding to call of nature, Babu Lal, Logar and Bagdiram got

2 away for about 1.30 hours. When they came back, the drum was

not there. On inquiry by Shambhu Singh (PW­3), Babu Lal told

that Logar and Bagdiram shall deliver it afterwards. On further

inquiry, it revealed that on 5th February, 1999, hot altercations

had taken place between Babu Lal and deceased Dharam Chand

for some money transactions and on carrying such drum, Babu

Lal caused some suspicion. During the course of search, it was

found that from a dry well, bad odour was emitting. When freshly

cut branches and leaves of the teak tree were removed, the dead

body of the deceased Dharam Chand was found. On the basis of

Exhibit P­73, formal FIR came to be registered on 11 th February,

1999 at Police Station, Nimbahera.

3. After the investigation, charge­sheet was filed against the

four accused persons namely, Babu Lal, Devi Lal, Keshu Ram @

Panchiya Meena and Logar Rawat. All the four faced trial. The

learned trial Judge by its impugned judgment acquitted the

accused persons Keshu Ram @ Panchiya Meena and Logar Rawat

holding accused Babu Lal guilty for the offence under Section

302 read with Section 34 and 120­B IPC and appellant Devi Lal

3 for the offence of Section 120­B IPC, of hatching a conspiracy to

commit murder.

4. The appeals preferred by both the appellants before the

High Court came to be dismissed affirming their conviction and

sentence vide judgment impugned dated 30 th January, 2009.

5. Before adverting to the rival submissions, it would be

apposite to first take analysis of the evidence on record.

6. The case of the prosecution is based on circumstantial

evidence. The circumstances which lead the trial Judge to held

the appellants guilty under Section 302 and 120B IPC and

confirmed by the High Court is primarily based on the evidence of

complainant Vijay Singh (PW­2), Vandna (PW­5) and Uma Devi

(PW­10), daughter and wife of the deceased and also relied upon

the extra judicial confession made by the co­accused Babu Lal to

Shambhu Singh (PW­3).

7. At the outset, it may be noticed that neither in the initial

complaint on which the missing report was lodged nor at the

stage after inquiry, when the FIR came to be registered (Exh. P­

73), the name of appellant Devi Lal surfaced. Even in the

4 statement of Vandna(PW­5), while recording statement under

Section 164 CrPC, (Exh. D­5), no such reference was made of any

conspiracy having been hatched by Devi Lal, the accused

appellant. In the testimony of PW­5 Vandna and PW­10 Uma

Devi, it was deposed that accused Devi Lal came to the house on

5th February 1999 and wanted to purchase the half portion of

Bada from the deceased Dharam Chand for a sum of Rs.

10,000/­. Devi Lal threatened the deceased to sell his Bada

which he refused.

8. As regards appellant Babu Lal, it was deposed by Vandna

(PW­5) and Uma Devi (PW­10) that he was known to their family

as Babu Lal used to take money from the deceased and to return

the same. Deceased Dharam Chand lended Rs. 50,000/­ to

accused Babu Lal, which had been reduced into writing in the

ledger book. When deceased Dharam Chand went to take money

from Babu Lal, he refused to return the same and started

quarrelling. The deceased had informed this to Vandna (PW­5)

and Uma Devi (PW­10). The money as demanded by the

deceased led to suspicion of the commission of crime. But both

the witnesses Vandna (PW­ 5) and Uma Devi (PW­10), in their

5 cross­examination, stated that they did not know when the

accused Babu Lal had borrowed money from the deceased.

9. It is true that an extra judicial confession is used against its

maker but as a matter of caution, advisable for the Court to look

for a corroboration with the other evidence on record. In Gopal

Sah v. State of Bihar 2008(17) SCC 128, this court while

dealing with extra judicial confession held that extra judicial

confession is, on the face of it, a weak evidence and the Court is

reluctant, in the absence of a chain of cogent circumstances, to

rely on it, for the purpose of recording a conviction. In the

instant case, it may be noticed that there are no additional

cogent circumstances on record to rely on it. At the same time,

Shambhu Singh (PW­3), while recording his statement under

Section 164 CrPC, has not made such statement of extra judicial

confession(Exh. D­5) made by accused Babu Lal. In addition,

there are no other circumstances on record to support it.

10. The other connecting evidence on which reliance was placed

by the prosecution was that accused Babu Lal had given

information of handing over the torn leaf of Bahi obtaining

6 signatures of deceased Dharam Chand to accused Devi Lal.

Accused Devi Lal got the said leaf recovered by giving information

to the Investigating Officer. There is no justifiable explanation

available which came on record as to how the torn leaf came in

the possession of Devi Lal as the said paper was torn from the

Bahi(Article 27) which was recovered from the accused Babu Lal,

which has been matched by FSL report. There was also no

justification which came forward from the prosecution as to how

the torn Bahi paper of Babu Lal containing the signatures of

deceased Dharam Chand with black ink came to him. Pen was

recovered on the information of accused Babu Lal, by which

handwriting found on the leaf recovered from accused Devi Lal.

The further circumstance was recovery of Rs. 11,200/­ on the

information given by the accused Babu Lal but from where this

money had come to Babu Lal, was not clarified by the

prosecution. The other circumstances completing the chain was

that accused Devi Lal had not given any clarification with regard

to the fact that by which information Devi Lal had come to Babu

Lal which had been indicated in the diary recovered from accused

Devi Lal under Section 27 of the Evidence Act. Accused Babu Lal

was arrested on 13th February, 1999 and accused Devi Lal was

7 arrested on 15th February, 1999 for the alleged incident of 7 th

February, 1999 which came to knowledge of informant on 8 th

February, 1999 and report was lodged on 11 th February, 1999

and the alleged recovery of torn page of Bahi, which obtained

signature of the deceased along with the diary of 1999(Exhibit P­

79), under Section 27 of the Evidence Act was made on 24 th

February, 1999. The Bahi, as such, was never produced. Apart

from non­production of Bahi, to prove the provonance of the torn

piece of blank paper, the similarity of the ink on this torn piece of

paper and ledger was extremely doubtful in view of the objection

by the FSL and response lead to it which the Investigating

Officer(PW­33) has also admitted in the cross examination.

11. What was relied upon by the High Court was that paper

Article 7 recovered on disclosure of appellant accused Devi

Lal(from “Darraj” to Barsot”) was one which was torn away from

Bahi recovered on information at the instance of the appellant

Babu Lal. Secondly, that piece of paper had lower portion which

had signatures of deceased Dharam Chand and other than that,

the paper was blank.

8

12. Summarily, the circumstances in totality apart from the

extra judicial confession which has been noticed by the High

Court are referred to as under:­

“1. Appellant­Devilal wanted to purchase half portion of ‘Bara’ from deceased for which he actively pursued.

2. On February 7th, in morning, around 9­10, deceased left for Bhagwanpura­not a very distant village.

3. Around 10­10.20 AM, he telling of going to house of Babulal for receiving money­went towards and to house(‘Nohra’) of Babulal.

Going to house of Babulal­than never seen alive.

4. Jeep of Shambhu hired by Babulal on February 6 th for use in evening of 7th for going village Dhikiya.

Then in evening of 7th around 8 p.m., Babulal and two other carried weighty drum which left at isolated site­ body of deceased found in a dry well like pit­near the place drum was left.

5. On information of Babulal, his own concealed clothes recovered from his house­also were blood stains on compound wall and soil of his ‘Nohra’. On clothes of Babulal and clothes of deceased blood ‘A’ group.

Stains found on the floor of ‘Nohra’ of ‘A’ group.

Stains on wall of ‘Nohra’ of human blood.

6. On information of Babulal­that is from his possession, recovered a ‘Bahi’ – of the ‘Bahi’ a leaf about 7­8” X 6­7” was torn away.

7. Babulal informed that above half torn leaf is with Babulal.

8. On information and at the instance of Devilal, that is from his possession, found above half torn leaf of ‘Bahi’­ recovered from “Darraj”, that is a narrow space between frame of door and surrounding wall.

9

9. On this torn away leaf at lower side, are signatures of Dharam Chand­otherwise blank is the paper.”

13. Without going into detailed scrutiny of the facts on record

under consideration, the circumstances which emerged and

taken note of under the impugned judgment in itself gives a

suspicion in completing the chain of commission of crime beyond

doubt, being committed by the accused appellants.

14. The classic enunciation of law pertaining to circumstantial

evidence, its relevance and decisiveness, as a proof of charge of a

criminal offence, is amongst others traceable decision of the

Court in Sharad Birdhichand Sarda Vs. State of

Maharashtra 1984(4) SCC 116. The relevant excerpts from para

153 of the decision is assuredly apposite:­

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

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

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:

10

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

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

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

15. It has further been considered by this Court in Sujit

Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias

Rajinder Vs. State of Haryana 2015(11) SCC 43. It has been

propounded that while scrutinising the circumstantial evidence,

a Court has to evaluate it to ensure the chain of events is

established clearly and completely to rule out any reasonable

likelihood of innocence of the accused. The underlying principle

is whether the chain is complete or not, indeed it would depend

on the facts of each case emanating from the evidence and there

cannot be a straight jacket formula which can be laid down for 11 the purpose. But the circumstances adduced when considered

collectively, it must lead only to the conclusion that there cannot

be a person other than the accused who alone is the perpetrator

of the crime alleged and the circumstances must establish the

conclusive nature consistent only with the hypothesis of the guilt

of the accused.

16. On an analysis of the overall fact situation in the instant

case, and considering the chain of circumstantial evidence relied

upon by the prosecution and noticed by the High Court in the

impugned judgment, to prove the charge is visibly incomplete

and incoherent to permit conviction of the appellants on the

basis thereof without any trace of doubt. Though the materials

on record hold some suspicion towards them, but the

prosecution has failed to elevate its case from the realm of “may

be true” to the plane of “must be true” as is indispensably

required in law for conviction on a criminal charge. It is trite to

state that in a criminal trial, suspicion, howsoever grave, cannot

substitute proof.

17. That apart, in the case of circumstantial evidence, two views

are possible on the case of record, one pointing to the guilt of the 12 accused and the other his innocence. The accused is indeed

entitled to have the benefit of one which is favourable to him. All

the judicially laid parameters, defining the quality and content of

the circumstantial evidence, bring home the guilt of the accused

on a criminal charge, we find no difficulty to hold that the

prosecution, in the case in hand, has failed to meet the same.

18. In the given facts and circumstances, we are unable to

sustain their conviction. The appellants are thus entitled to the

benefit of doubt. Both the appeals succeed and are accordingly

allowed. Appellant Devi Lal is already on bail. His bail bonds are

discharged. Appellant Babu Lal who is in custody is directed to

be released forthwith, if not required in any other case.

…..………………………CJI.

(RANJAN GOGOI)

……………………………..J. (K.M. JOSEPH)

……………………………..J. (AJAY RASTOGI)

NEW DELHI January 8, 2019.

13