Rajasthan High Court - Jaipur
Vinod vs State Of Rajasthan Through Pp on 2 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 484/2016
Vinod S/o Shri Tora Ram, B/c Singiwal, aged 34 years, R/o
Village Kharana, Police Station Jamuwa Ramgarh, District Jaipur
Rural (Raj.).
(At present in Central Jail, Jaipur)
----Accused/Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Anshuman Saxena Advocate For Respondent(s) : Ms. Rekha Madnani for the State.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 02/08/2019 Appellant has filed this appeal challenging his conviction and sentence as ordered by the trial court vide judgment/order dated 30.03.2016 under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') in FIR No.240 dated 21.06.2012 registered at Police Station Chaksu, District Jaipur Rural (Rajasthan).
Prosecution story, in brief, is that on 21.06.2012 at about 11.00 a.m., complainant had gone to answer the call of nature near a newly constructed shop and found that dead body of a lady was lying there. The dead body was in a decomposed condition and was emitting foul smell. There was an injury on her right temporal area. A bandage had been put on the right foot of the lady. It appeared that the murder had been committed about two (Downloaded on 29/08/2019 at 10:01:08 PM) (2 of 8) [CRLA-484/2016] days earlier. About 5-6 days earlier, one man along with a lady and two children aged about eight years and six years had started living in the shop as it was lying vacant. The man was using crutches as he had suffered an injury on his foot. Since yesterday, the man as well as both the children were missing. The said persons appeared to be beggars. On the basis of the statement of complainant Ram Swaroop Bairwa, formal FIR was registered.
After completion of investigation and necessary formalities, challan was presented against the appellant.
Charge was framed against the appellant under Section 302 IPC.
Appellant did not plead guilty and claimed trial. In order to prove its case, prosecution examined eleven witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent.
Appellant did not examine any witness in his defence. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. No test identification parade has been got conducted to establish the identity of the appellant.
Learned State counsel has opposed the appeal. Complainant while appearing in the witness box as PW-3 has deposed as per the contents of the FIR. He has further deposed that the accused present in the court was the same person, with whom the deceased was living. He also deposed that there was an injury mark on the temporal region of the deceased which appeared to be 2/3 days old. A bamboo stick had been inserted in the private part of the deceased.
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(3 of 8) [CRLA-484/2016] PW-4 Dharam Raj has corroborated statement of the complainant.
PW-7 Pappu Lal Sharma has also deposed in his cross- examination that appellant had started residing at the place of incident about 2/3 days prior to the incident.
PW-8 Doctor Vinay Kumar Atre deposed that on 22.06.2012, he had conducted postmortem examination on the dead body of the deceased and proved the report in this regard Exhibit-P-15. A perusal of Exhibit-P-15 reveals that the cause of death of the deceased was hemorrhagic shock brought about as a result of antemortem injury to her right lung with cumulative effect of other injuries as mentioned in the postmortem report caused by insertion of bamboo stick in the body through external genitalia.
PW-10 Raghuveer Singh deposed that on 21.06.2012, FIR in the present case was registered on the basis of the statement of the complainant. Thereafter, he went to the spot and site plan was prepared. The dead body of the deceased was sent for postmortem examination. Blood stained earth as well as plain earth were lifted from the spot. During investigation, appellant- Vinod was arrested and memo Exhibit-P-13 in this regard was prepared. Appellant suffered a disclosure statement under Section 27 of the Indian Evidence Act, 1872 that he could get recovered the stone and crutches used at the time of incident. Disclosure statement Exhibit-P-15 of the appellant was recorded. On the basis of the said statement, appellant got recovered the stone and crutches used at the time of incident and the same were taken in possession.
Present case relates to murder of Geeta. Case rests on circumstantial evidence.
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(4 of 8) [CRLA-484/2016] It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:-
"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the (Downloaded on 29/08/2019 at 10:01:08 PM) (5 of 8) [CRLA-484/2016] accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."
It has also been held by the Hon'ble Supreme Court in Bachan Singh vs. State of Punjab 1980 (2) SCC 684, as under:-
"In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:
(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefore, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty.
(ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible.
"The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGantha v. California (1971) 402 US 183 (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.
(iii) The view taken by the plurality in Furman v.
Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence (Downloaded on 29/08/2019 at 10:01:08 PM) (6 of 8) [CRLA-484/2016] of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area.
(iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.
(v) (a) Relevant facto and circumstances Impinging on the nature and circumstances of the crime can be brought before the Court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facto and circumstances had been specifically provided. When counsel addresses the Court with regard to the character and standing of the accused, (Downloaded on 29/08/2019 at 10:01:08 PM) (7 of 8) [CRLA-484/2016] they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P. C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin- constitutional under Article 21."
As per the complainant, appellant had started residing with the deceased and two children in a newly constructed vacant shop. On the day of the lodging of the FIR, appellant had found the dead body of Geeta in the shop, which was lying vacant and had been occupied by the deceased along with the appellant and two children. When the complainant found the dead body, appellant was not present at the spot. Children were also not found present at the spot. Appellant has been duly identified by the complainant during trial as the person with whom the deceased was residing in the shop-in-question. Complainant had no ill-will or enmity against the appellant to have falsely involved (Downloaded on 29/08/2019 at 10:01:08 PM) (8 of 8) [CRLA-484/2016] him in this case. In-fact, complainant was not known to the appellant, but had seen him living in a newly constructed shop along with the deceased and two children few days prior to the incident. Complainant had given the description of the appellant in the FIR itself. Apparently, from the said description, appellant was apprehended and was arrested.
Although, in the present case, test identification parade of the accused was not got conducted, but statement of PW-3 with regard to the identification of the appellant during trial inspires confidence and can be relied upon.
Although, during the course of investigation, statement of the one of the child living with the deceased and the appellant i.e. Manish Kumar was recorded, but he could not be examined during trial as his whereabouts were not known.
Thus, in the present case, prosecution had been successful in completing the chain of circumstances leading to the guilt of the appellant and negate the possibility of his innocence. Hence, in the facts and circumstances of the present case, learned Trial Court had, thus, rightly ordered conviction and sentence of the appellant under Section 302 IPC. No ground for interference is made out.
Dismissed.
(GOVERDHAN BARDHAR)J. (SABINA)J.
S.Kumawat-18
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