Rajasthan High Court - Jaipur
Smt Suman Devi vs State Of Rajasthan Through Pp on 3 May, 2019
Author: Sabina
Bench: Sabina
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 456/2015
Smt. Suman Devi Wife of Shri Virendra Jangid, Resident of
Thanwas, Police Station Nangal Choudhary, District
Mahendragarh (Hariyana)
[At Present in Central Jail, Jaipur]
----Accused/Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With
D.B. Criminal Appeal No. 676/2015
1. Ratan Lal S/o Ramkuwar Balai, R/o Jatganwada, P.S. Behror,
District Alwar.
(At Present confined in Central Jail, Jaipur.)
2. Vikram S/o Ramkuwar Balai, R/o Jatganwada, P.S. Behror,
District Alwar.
----Appellant/Accused
Versus
State Of Rajasthan Through Public Prosecutor.
----Respondent For Appellant(s) : Pt. Shri Ram Joshi For Respondent(s) : Mr. Javed Choudhary, P.P. HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 03/05/2019 Vide this judgment above mentioned two appeals would be disposed of as they have arises out of judgment/order dated 13.05.2015 passed by Additional Sessions Judge, Kotputli, District Jaipur.
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(2 of 14) [CRLA-456/2015] Prosecution story, in brief, as per the FIR is that on 01.04.2011 Suresh, elder brother of the complainant Hansraj, had gone to purchase articles for the wedding of his younger brother Pushkar and had taken Rs. 10,000/- with him. Marriage of Pushkar was fixed for 12.05.2011. Suresh had stated that he would return home in the evening. However, Suresh did not return home till 07.04.2011, nor he could be contacted on his mobile phone bearing No. 09466881544. Hence, missing report was lodged.
It was further case of the complainant that on 01.04.2011 Amar Singh had told him that Suresh had informed him that he was going to meet Suman at Pawta (Pragpura). On 01.04.2011 at about 11:00/11:15 p.m., complainant had received a phone call from Suresh on his (complainant) mobile phone bearing No. 09416964250 and told him that he was being given beatings by Suman, Ratan and others. Thereafter, the phone got disconnected. Complainant stated that Suresh was under the influence of liquor and therefore, he did not pay much heed to the information given by his brother. Suresh had gone on the motorcycle bearing registration No. HR-35-F-5117 belonging to Pushkar. He suspected that his brother Suresh had been killed by Suman alongwith her companions. Suman was a woman of bad reputation and had been thrown out of her village on this account and for the last 2 to 3 months, she was residing in their village.
On the basis of the statement of the complainant, formal FIR No. 147/2011 (Exhibit-P-29) was registered on 14.04.2011 at police station Pragpura, Jaipur (Rural) under Section 302, 201 and 120-B of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). (Downloaded on 28/06/2019 at 11:26:27 PM)
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During investigation, accused Suman was arrested on
15.04.2011. The disclosure statement of accused Suman was recorded during investigation and recovery of dead body of Suresh was effected from a dry well. A dupatta with which hands and feet of the deceased had been tied was recovered on the basis of disclosure statement suffered by Suman and one box of empty celphos tablet and one strip of sleeping pills was also recovered. Dead body was taken in police possession and was sent for postmortem examination. As per the postmortem examination report, deceased had died, on account of asphyxia due to blockage of respiratory tract.
Accused Ratan was arrested and he identified the place where purse, SIM Card and documents belonging to deceased Suresh were burnt.
Accused Vikram was arrested and he suffered disclosure statement and got recovered mobile phone of the deceased.
After completion of investigation and necessary formalities, challan was presented against the accused. Charges were framed against the accused under Sections 302, 201 and 120-B IPC. Accused did not plead guilt and claimed trial.
Prosecution in order to prove its case examined seventeen witnesses during trial. Accused when examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') prayed that they were innocent and had been falsely involved in this case. Accused did not examine any witness in their defence.
The trial Court vide judgment/order dated 13.05.2015 convicted and sentenced the accused-appellants as under:- (Downloaded on 28/06/2019 at 11:26:27 PM)
(4 of 14) [CRLA-456/2015] Under Section 302 IPC Life term imprisonment with fine of Rs. 2,000/-, in case of default in payment of fine, to further undergo additional four months simple imprisonment.
Under Section 201 IPC Five years rigorous imprisonment with fine of Rs.
1,000/-, in case of default in payment of fine, to further undergo additional two months simple imprisonment.
Under Section 120-B IPC Life term imprisonment with fine of Rs. 2,000/-, in case of default in payment of fine, to further undergo additional four months simple imprisonment.
Hence, the present appeals by the appellants. Learned counsel for the appellants has submitted that the trial Court has erred in ordering the conviction of the appellants with regard to charges framed against them. Prosecution had miserably failed to prove its case. Prosecution case rests on circumstantial evidence. However, prosecution had failed to prove complete chain of circumstances leading to inference of guilt of the accused and negate their innocence. Appellants had no motive to commit the murder of the deceased. Complainant was not examined during trial. The alleged call detail of the complainant with the deceased on 01.04.2011 was not proved on record. (Downloaded on 28/06/2019 at 11:26:27 PM)
(5 of 14) [CRLA-456/2015] Recoveries of the articles have been falsely planted on the appellants.
Learned State Counsel has opposed the appeals and has submitted that the prosecution had been successful in proving its case. On the basis of disclosure statement suffered by appellant Suman, dead body of Suresh was recovered. All the accused in connivance with each other had committed the murder of Suresh.
Present case relates to murder of Suresh. Case rests on circumstantial evidence. 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 (Downloaded on 28/06/2019 at 11:26:27 PM) (6 of 14) [CRLA-456/2015] 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 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 (Downloaded on 28/06/2019 at 11:26:27 PM) (7 of 14) [CRLA-456/2015] 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 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 (Downloaded on 28/06/2019 at 11:26:27 PM) (8 of 14) [CRLA-456/2015] 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, 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.
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(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."
Thus, let us examine whether, in the present case, prosecution has been successful in completing the chain of circumstances, which lead to the conclusion of the guilt of the appellants.
Since, it was the prosecution case that the deceased had been given some sleeping pills/ celphos tablets before committing his murder by the accused, viscera's of the deceased were sent for chemical analysis to check with regard to poisoning and sedative. (Downloaded on 28/06/2019 at 11:26:27 PM)
(10 of 14) [CRLA-456/2015] As per the report of Forensic Science Laboratory, Exhibit-P- 42, on chemical examination, portions of visceras gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and insecticides.
Complainant could not be examined in this case during trial on account of his death.
As per the FIR, it was the case of the complainant that he had been informed by Amar Singh on 01.04.2011 that his brother Suresh had gone to meet Suman. Amar Singh has also not been examined during trial to establish the fact that he had told the complainant that the deceased had gone to meet Suman on 01.04.2011. It was further the case of the complainant that he had received a phone call from his brother Suresh at about 11:00/11:15 p.m. that he was being given beatings by Suman, Ratan and others. However, the call details to substantiate the said fact has not been proved on record.
It is not understandable that in case complainant knew on 01.04.2011 itself that deceased had gone to meet Suman as told to him by Amar Singh and further that deceased was being given beatings by Suman, Ratan and others as told to the complainant by the deceased on phone call, then why the complainant did not immediately lodge the report with the police but waited up to 07.04.2011 for lodging the missing report. The missing report has not been proved on record. FIR was lodged on 14.04.2011. The delay in lodging the alleged missing report by the complainant and FIR in the present case gain significance and render the prosecution case doubtful.
From the FIR itself, it is evident that the complainant has stated that deceased was habitual of consuming liquor. The (Downloaded on 28/06/2019 at 11:26:27 PM) (11 of 14) [CRLA-456/2015] conduct of complainant in the facts and circumstances of the present case was most unnatural as he did not bother to go and help his brother, rather, waited for seven days before lodging the alleged missing report and waited for another seven days before lodging the FIR. In case, complainant had actually come to know that the deceased had gone to meet Suman or had been given beatings by Suman, under normal circumstances, he would immediately gone to meet Suman on the next day to inquire about his brother. However, complainant or his other family members did not do any such thing and waited up to 07.04.2011 to lodge the alleged missing report. Hence, version of the complainant stated in the FIR is rendered doubtful.
From the FIR also, it cannot be said that the appellants had any motive to commit the murder of deceased. Since it is a case of circumstantial evidence, factum of motive gains significance. Hence, absence of motive with the accused to commit murder of the deceased also renders the prosecution story doubtful.
Pushkar, brother of deceased has been examined by the prosecution as PW-16. The said witness has deposed that his brother had taken his motorcycle to make purchase of articles with regard to his (witness) marriage. The said witness has stated that on 15.04.2011 he came to know that the appellants had committed the murder of his brother. The conduct of PW-16 is also most unnatural. He had given his motorcycle to his brother on 01.04.2011 but did not take any action to search his brother till the FIR was registered by the complainant. Rather, as per this witness he came to know after registration of the FIR on 15.04.2011 that his brother had been murdered by the appellants. (Downloaded on 28/06/2019 at 11:26:27 PM)
(12 of 14) [CRLA-456/2015] This witness did not lodge any complaint with regard to his missing Motorcycle.
PW-15 Dhansi Ram deposed that he knew Suresh. Suresh used to meet Suman at Pragpura. On 14.04.2011, he came to know that Suman had murdered Suresh and had put the dead body in a dry well. The said witness has deposed with regard to recovery of the dead body of Suresh from the dry well but his statement fails to advance the prosecution case with regard to the involvement of the appellants in this case.
PW-3 Anju is daughter of appellant Suman. She deposed that she did not know how the occurrence had occurred, rather, in her cross-examination she has deposed that on 01.04.2011 she alongwith her mother and brother had slept in the house of one Jat as her father was not in town on that day.
PW-13 Hemraj has deposed with regard to investigation conducted by him.
Doctors have been examined to prove postmortem examination report.
It is a settled principle of law that in a case resting on circumstantial evidence chain of events is required to be proved by the prosecution from which the conclusion should fully establish the hypothesis, i.e. the guilt of the accused. The evidence should be such that it should negative the innocence of the accused. However, in the present case, prosecution has failed to complete the chain of circumstances which lead towards the guilt of the accused and negative their innocence. Rather, prosecution case is doubtful.
In the present case, recovery of the dead body is alleged to have been effected on the basis of disclosure statement suffered (Downloaded on 28/06/2019 at 11:26:27 PM) (13 of 14) [CRLA-456/2015] by appellant Suman but keeping in view the fact that the story put-forth in the FIR itself appears to be doubtful it can be inferred that recovery of dead body of Suresh on the basis of disclosure statement suffered by appellant Suman has been falsely concocted. The dead body was recovered in a decomposed condition. It appears that on account of recovery of dead body, after arresting Suman recovery of dead body at her instance was falsely planted on her. Thereafter, other accused were arrested and recovery of motorcycle from accused Vikram was falsely planted on him. Motorcycle belonged to PW-16 Pushkar. PW-16 also never lodged any report with the police that his motorcycle was missing till it has been allegedly recovered on the basis of disclosure statement suffered by appellant Ratan. The said accused has also disclosed on 19.04.2011 the place where dead body had been thrown, whereas, the dead body had already been recovered on 14.04.2011. No recovery was effected on the basis of statement of appellant Ratan. Hence, his disclosure statement fails to advance the prosecution case.
It is a settled principle of law that prosecution has proved its case by leading cogent evidence beyond the shadow of reasonable doubt and, whenever, prosecution story is doubtful, benefit of the same has to be extended to the accused.
Since, it the present case, prosecution has been unable to prove its case beyond the shadow of reasonable doubt, we are of the opinion that the appellants are liable to be acquitted of the charges framed against them by giving them benefit of doubt.
Accordingly, both the appeals are allowed. Conviction and sentence of the accused- appellants- Smt. Suman Devi wife of Shri Virendra Jangid, Ratan Lal s/o Ramkuwar Balai and Vikram (Downloaded on 28/06/2019 at 11:26:27 PM) (14 of 14) [CRLA-456/2015] s/o Ramkuwar Balai are set aside. They are acquitted of the offences under Sections 302, 201 and 120-B of the IPC. Appellants-accused Smt. Suman Devi wife of Shri Virendra Jangid and Ratan Lal s/o Ramkuwar Balai are in jail, they are serving the sentence, therefore, they be released forthwith, if not required in any other case.
Appellant-accused Vikram s/o Ramkuwar Balai is on bail, therefore, his bail bonds are discharged.
In view of the provisions of Section 437-A Cr.P.C., appellants namely Smt. Suman Devi wife of Shri Virendra Jangid, Ratan Lal s/o Ramkuwar Balai and Vikram s/o Ramkuwar Balai are directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(BANWARI LAL SHARMA)J. (SABINA)J.
Simple Kumawat /17-18
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