Rajasthan High Court - Jaipur
Smt Suman Devi vs State Of Rajasthan Through P P on 11 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Appeal No. 107/2018
Smt. Suman Devi W/o Shri Narendra @ Goliya Deceased, aged 23
years, B/c Ahir, R/o Village Jatganvada, Police Station Behrod,
District Alwar, Raj. At Present Confined In Central Women Jail,
Jaipur.
----Appellant
Versus
State Of Rajasthan Through PP.
----Respondent
2. D.B. Criminal Appeal (Db) No. 106/2018
Raju @ Rajendra Prasad S/o Shri Rohitash, aged 33 years, B/c
Yadav, R/o Village Jatganvada, Police Station Behrod, District
Alwar, Raj. At Present Confined In District Jail, Alwar.
----Appellant
Versus
State Of Rajasthan Through PP.
----Respondent
For Appellant(s) : Mr. Mithlesh Kumar Adv. and
Mr. Rati Ram Yadav Adv.
For Respondent(s) : Mr. Javed Chaudhary, P.P.
For Complainant : Mr. Gaurav Gupta Adv.
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
11/07/2019
Vide this order above mentioned two appeals would be
disposed of.
Appellants had faced trial qua offence punishable under
Sections 302 of Indian Penal Code, 1860 (hereinafter referred to
as 'IPC') in FIR No.671 dated 27.09.2016 registered at Police
Station Behror, District Alwar.
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Prosecution case was set in motion on receipt of complaint
Exhibit-P-1 from complainant Prakash. It has been stated by the
complainant in the complaint that his brother Narendra @ Goliya
was married to his sister-in-law Suman Devi. Some differences
had arisen between his brother and his wife about four months
back. Suman Devi had started residing in her parental home. On
26.09.2016, his brother told his mother that he was going to his
in-laws house to bring back his wife and children. However, on the
next day in the morning, he came to know that his brother had
committed suicide and his body was found hanging from a tree.
He along with his family members reached the spot. His brother
had been murdered by Suman Devi, father-in-law Moti Ram,
Mother-in-law Lakhpati Devi, brother-in-law Vikram in conspiracy
with each other and he also alleged that Suman Devi was having
illicit relations with Raju @ Rajendra. On the basis of Exhibit-P-1,
formal FIR Exhibit-P-16 was registered.
After completion of investigation and necessary formalities,
challan was presented against the appellants.
Charge was framed against the appellants under Section 302
IPC or in the alternative under Section 302/34 IPC. Appellants did
not plead guilty and claimed trial.
In order to prove its case, prosecution examined fifteen
witnesses. After the close of prosecution evidence, appellants
were examined under Section 313 Code of Criminal Procedure,
1973, prayed that they were innocent and had been falsely
involved in this case. Appellants did not examine any witness in
their defence.
Trial court vide impugned judgment/order dated 22.01.2018
ordered the conviction of the appellants under Section 302 read
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with Section 34 IPC and sentenced them to undergo imprisonment
for life and fine of Rs.20,000/-. It was ordered that in default of
payment of fine, appellants shall undergo further rigorous
imprisonment for three years. Hence, the present appeals by the
appellants.
Learned counsel for the appellants has submitted that the
appellants have been falsely involved in this case. There was no
material on record to establish that the appellants were having
illicit relations. Initially, it was the case of the complainant that the
deceased had committed suicide. The version of the prosecution
was changed after receipt of postmortem report and it was alleged
that the accused had murdered the deceased. The case rests on
circumstantial evidence. Prosecution had failed to complete the
chain of circumstances to establish the guilt of the appellants.
Investigation in the present case had not been conducted in a
proper manner. Photographs of the spot were not produced on
record. The recovered rope pieces were not shown in the site plan.
Call details of the appellants were also not established on record.
In support of his arguments, learned counsel has placed reliance
on the judgment of Hon'ble Supreme Court in Nathiya Versus
State Rep. Inspector of Police, Bagayam Police Station,
Vellore 2016(10) SCC 298, wherein, it was held as under:-
"The competing arguments and the materials
on record have received our due scrutiny. It is
patent in the present factual setting that there is
no eye witness to occurrence and that the
prosecution case is based wholly on circumstantial
evidence. The genesis of the suspicion against the
appellants, being their amorous association to the
anguish disliking of the deceased, he being almost
reduced to a helpless entity, having failed to
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prevent such liaison inspite of his best endeavours.
There is indeed some evidence suggestive of such
and alliance between the appellants at the relevant
point of time. This, per se, in our comprehension,
however, cannot be accepted as a decisive
incriminating factor to deduce their culpability qua
the charge of murder of the deceased Gurunathan.
The place of occurrence is a well, away from
the residence of the deceased for which any
definitive presumption against his wife Nathiya, as
a conspirator of the crime, cannot be drawn
without the risk of going wrong to cast a burden on
her, as contemplated under Section 106 of the
Evidence Act.
The closest circumstance bearing on the
incident is, discernible from the testimony of PW3
Packiammal who stated to have heard the shrieks
of the deceased, followed by a loud sound of a fall
inside the well. There is no evidence that
immediately thereafter, the appellants were seen in
the vicinity of the well. Noticeably, the chappals of
the deceased were found by the side of the well.
The evidence of PW4 Dinakaran is, however, to the
effect that when the dead body was recovered
thereafter from the well, both the appellants were
present and Nathiya, the wife of the deceased, was
seen weeping by his side.
The medical evidence does not refer to any
external injury indicative of use of any external
force on the deceased, resulting in his ante-
mortem suffocation and loss of consciousness, to
be thereafter dispatched into the well. The
possibility that the cause of death i.e. grievous
head injury, suffocation and heart failure were post
fall manifestations, also cannot be ruled out as the
medical evidence admits of such an eventuality as
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well.
The inexplicable omission on the part of the
prosecution to produce and prove the alleged
confessional statements made by the appellants
and reduced into writing by PW9 and witnessed by
PW10 substantially denudes its case of necessary
credence to incriminate them. The oral testimony
of these witnesses to the effect that such
confessional statements had been recorded, ipso
facto is of no consequence. Not only the contention
that the supposed disclosure by the deceased to
PWs 1 and 2 about the immoral conduct of the
appellants is discardable being hearsay in nature,
deserves some reflection, it is noticeable that PW2,
in his cross-examination, did admit that he had not
divulged the above fact to the police. PW10, as
well, did concede that he had not revealed to
anybody about the confessional statements made
by the accused persons. The recovery of a saree
produced by Nathiya said to have been gifted to
her by Suresh and their joint photograph, in the
attendant facts and circumstances and in the face
of the other evidence on record, does not clinch the
issue in favour of the prosecution.
x.......x......x......x
On an analysis of the overall fact situation, we
are of the considered opinion that the chain of
circumstantial evidence relied upon by the
prosecution 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 do
raise a needle of suspicion towards them, 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
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conviction on a criminal charge. It is trite to state
that in a criminal trial, suspicion, howsoever grave,
cannot substitute proof.
The classic enunciation of the law pertaining
to circumstantial evidence, its relevance and
decisiveness, as a proof of charge of a criminal
offence, is amongst others traceable to the decision
of this Court in Sharad Birdhichand Sarda vs. State
of Maharashtra (1984) 4 SCC
The relevant excerpts from paragraph 153 of
the decision is assuredly apposite: "153.(2) The
facts so established should be consistent only with
the hypothesis of the guilt of the accused...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.
* * * (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." As recently as in Sujit Biswas vs. State of
Assam (2013) 12 SCC 406 and Raja @ Rajendra
vs. State of Haryaya (2015) 11 SCC 43, it has been
propounded that in scrutinizing the circumstantial
evidence, a court is required to evaluate it to
ensure that the chain of events is established
clearly and completely to rule out any reasonable
likelihood of innocence of the accused. It was
underlined that whether the chain is complete or
not would depend on the facts of each case
emanating from the evidence and no universal
yardstick should ever be attempted. That in judging
the culpability of the accused, the circumstances
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adduced when collectively considered, must lead
only to the irresistible conclusion that the accused
alone is the perpetrator of the crime alleged. That
the circumstances established must be of a
conclusive nature consistent only with the
hypothesis of the guilt of the accused, was
emphatically propounded."
Learned counsel has next placed reliance on the judgment of
Hon'ble Supreme Court in Anjan Kumar Sarma & Ors Versus
State of Assam AIR 2017 SC 2617, wherein, it was held as
under:-
"The prosecution relied upon the following
circumstances to prove the charges against the
accused:-
1. The deceased was last seen with the
accused persons in Bungalow No.17 on the
night of 27.12.1992 in the company of the
accused persons but not seen alive thereafter
anywhere.
2. When the relatives of Rekha Dutta
enquired about her whereabouts on the next
date i.e. on 28.12.1992 the accused persons
failed to give any definite reply.
3. The dead body of the victim was
found/lying on the railway track on
29.12.1992. The said railway track passes
through the tea garden where bungalow
No.17 is situated.
4. Rekha was wearing material Exhibit 1
(Frock) when she was last seen in the
company of the accused persons and the
same frock was also found on her dead body
when it was discovered on the railway track
on 29.12.1992.
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5. The Surgeon (PW-11) who conducted the
autopsy, while issuing the post-mortem
certificate (Exhibit 4) categorically stated that
death of the victim was a result of the
antemortem incised wound found on the skull
which could be caused by weapon like
material Exhibit 3 (Khukri).
6. Recovery of material Exhibit 3 (Khukri)
from the bungalow of accused Dhruba Jyoti
Bhuyan on the basis of disclosure statement
made by accused Jit Kakati.
7. Mark of blood stains found in the said
Khukri.
8. The Investigating Officer also noticed blood
stains in the bathroom of bungalow No.17.
9. The Failure of the accused persons to offer
any explanation in respect of the
incriminating circumstances as narrated
above, which, according to prosecution, can
be counted as providing missing links for
completing the chain of circumstances.
x......x....x......x
It is no more res integra that suspicion cannot
take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between
moral certainty and the legal proof. At times it can be a
case of "may be true." But there is a long mental
distance between "may be true" and "must be true" and
the same divides conjunctures from sure conclusions.
It is settled law that inferences drawn by the court
have to be on the basis of established facts and not on
conjectures. (See : Sujit Biswas V. State of Assam,
(2013) 12 SCC 406(13-18) : (AIR 2013 SC 3817). The
inference that was drawn by the High Court that the
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death was caused on 28.12.1992 within the time of 48
hours as mentioned in the post-mortem report is not
correct. The post-mortem examination was conducted
on 30.12.1992 at 12.00 noon and it was opined by PW-
11 that death occurred 24 to 48 hours prior to the time
of post-mortem examination. Even if the time is
stretched to the maximum of 48 hours, the death was
after 12.00 noon on 28.12.1992. The deceased was in
the company of the accused till 9.00 p.m. on
27.12.1992. The inference drawn by the High Court that
the accused have killed the deceased on 28.12.1992 in
the night time and thrown the body on the railway track
is not on the basis of any proved facts. The Trial Court is
right in holding that there is no evidence on record to
show that the deceased was with the accused after
12.00 noon on 28.12.1992.
x.....x.....x......x
The Circumstances of last seen together cannot by
itself from the basis of holding the accused guilty of the
offence. In Kanhaiya Lal Vs. State of Rajasthan (2014) 4
SCC 715, this court held that:
12. The circumstance of last seen together does
not by itself and necessarily lead to the
inference that it was the accused who committed
the crime.
There must be something more establishing
connectivity between the accused and the crime.
Mere non-explanation on the part of the
appellant, in our considered opinion, by itself
cannot lead to proof of guilt against the
appellant.
.........
15. The theory of last seen- the appellant having
gone with the deceased in the manner noticed
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hereinbefore, is the singular piece of
circumstantial evidence available against him. The
conviction of the appellant cannot be maintained
merely on suspicion, however strong it may be, or
on his conduct. These facts assume further
importance on account of absence of proof of
motive particularly when it is proved that there
was cordial relationship between the accused and
the deceased for a long time. The fact situation
bears great similarity to that in Madho Singh V.
State of Rajasthan [(2010)15 SCC 588]."
In Arjun Marik V. State of Bihar, 1994 Supp (2) SCC 372
this court held that :-
"31.Thus, the evidence that the appellant had gone
to Sitaram in the evening of 19-7-1985 and had
stayed in the night at the house of deceased
Sitaram is very shaky and in conclusive. Even if it
is accepted that they were there it would at best
amount to be the evidence of the appellants having
been seen last together with the deceased. But it is
settled law that the only circumstance of last seen
will not complete the chain of circumstances to
record the finding that it is consistent only with the
hypothesis of the guilt of the accused and,
therefore, no conviction on that basis alone can be
founded."
This Court in Bharat V. State of M.P. (2003) 3
SCC 106, held that the failure of the accused to
offer any explanation in his statement under
Section 313, Cr.P.C. alone was not sufficient to
establish the charge against the accused. In the
facts of the present case, the High Court
committed an error in holding that in the absence
of any satisfactory explanation by the accused the
presumption of guilt of the accused stood un-
rebutted and thus the appellants were liable to be
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convicted.
x.....x.....x......x
It is clear from the above that in a case where
the other links have been satisfactorily made out
and the circumstances point to the guilt of the
accused, the circumstance of last seen together
and absence of explanation would provide an
additional link which completes the chain. In the
absence of proof of other circumstances, the only
circumstance of last seen together and absence of
satisfactory explanation cannot be made the basis
of conviction. The other judgments on this point
that are cited by Mr. Venkataramani do not taken a
different view and, thus, need not be adverted to.
He also relied upon the judgment of this Court in
State of Goa V. Sanjay Thakran, (2007) 3 SCC
755 : in support of his submission that the
circumstance of last seen together would be a
relevant circumstance in a case where there was no
possibility of any other persons meeting or
approaching the deceased at the place of incident
or before the commission of crime in the
intervening period. It was held in the above
judgment as under :-
"34.From the principal laid down by this
Court, the circumstance of last seen
together would normally be taken into
consideration for finding the accused guilty
of the offence charged with when it is
established by the prosecution that the time
gap between the point of time when the
accused and the deceased were found
together alive and when the deceased was
found dead is so small that possibility of
any other person being with the deceased
could completely be ruled out. The time gap
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between the accused persons seen in the
company of the deceased and the detection
of the crime would be a material
consideration for appreciation of the
evidence and placing reliance on it as a
circumstance against the accused. But, in
all cases, it cannot be said that the
evidence of last seen together is to be
rejected merely because the time gap
between the accused persons and the
deceased last seen together and the crime
coming to light is after (sic of) a
considerable long duration. There can be no
fixed or straitjacket formula for the duration
of time gap in this regard and it would
depend upon the evidence led by the
prosecution to remove the possibility of any
other person meeting the deceased in the
intervening period, that is to say, if the
prosecution is able to lead such an evidence
that likelihood of any person other than the
accused, being the author of the crime,
becomes impossible, then the evidence of
circumstance of last seen together, although
there is long duration of time, can be
considered as one of the circumstances in
the chain of circumstances to prove the
guilt against such accused persons. Hence,
if the prosecution proves that in the light of
the facts and circumstances of the case,
there was no possibility of any other person
meeting or approaching the deceased at the
place of incident or before the commission
of the crime, in the intervening period, the
proof of last seen together would be
relevant evidence. For instance, if it can be
demonstrated by showing that the accused
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persons were in exclusive possession of the
place where the incident occurred or where
they were last seen together with the
deceased, and there was no possibility of
any intrusion to that place by any third
party, then a relatively vider time gap
would not affect the prosecution case.
As we have held that the other circumstances relied
upon by the prosecution are not proved and that
the circumstances of last seen together along with
the absence of satisfactory explanation are not
sufficient for convicting the accused. Therefore, the
findings recorded in the above judgment are not
applicable to the facts of this case. "
Learned counsel has next placed reliance on the judgment of
Hon'ble Supreme Court in Suresh and Anr. Versus State of
Haryana in Criminal Appeal No.(S) 1445-1446 of 2012
decided on 21.08.2018, wherein, it was held as under:-
"In line with the aforesaid definition, this Court in
catena of cases has expounded the test of 'complete
chain link theory' for the prosecution to prove a case
beyond reasonable doubt based on the circumstantial
evidence. In Hanumant and Others v. State of Madhya
Pradesh, AIR 1952 SC 343 [hereinafter referred as
'Hanumant Case' for brevity], this Court explained
one of the possible ways to prove a case based on
circumstantial evidence, in the following manner-in cases
where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
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such as to exclude every hypothesis but the one proposed
to be proved.
x.....x.....x......x
In Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622. Therein, while dealing with
circumstantial evidence, it has been held that the onus
was on the prosecution to prove that the chain is
complete and the infirmity or lacuna in the prosecution
cannot be cured by a false defense or plea. The conditions
precedent in the words of this Court, before conviction
could be based on circumstantial evidence, must be
fully established. They are-(1) the circumstances from
which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned 'must or
should' and not merely 'may be' established;
(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.
The aforesaid tests are aptly referred as 'Panchsheel
of proof in Circumstantial Cases' [refer Prakash v. State of
Rajasthan, AIR 2013 SC 1474]. The expectation is that
the prosecution's case should reflect careful portrayal of
the factual circumstances and inferences thereof and
their compatibility with a singular hypothesis wherein all
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the intermediate facts and the case itself are proved
beyond reasonable doubt.
x.....x.....x......x
The credibility of the witnesses, which the
prosecution mainly relies on to prove the case on the
basis of the circumstantial evidence is an important
aspect. In this case the evidence of PW-13 (wife of the
deceased) is crucial. Her statements should be carefully
appreciated. The statements, as indicated above, clearly
portray that there were material improvements in the
statements, which makes her statement unreliable and
doubtful. The vindictive statements which were made
during the cross examination, clearly bars us from taking
her testimony into consideration. There is no dispute that
there was prior enmity between the wife and the accused
appellants, which makes her statements unreliable. It is
revealed from her evidence that, even though she knew
that her husband was taken for shooting somebody, she
kept quiet and did not stop her husband from
accompanying the accused. Such behavior would be
suspicious as it does not fit with the natural human
behavior to inspire any confidence.
x.....x.....x......x
We have considered the reasoning of the court below
in this case, which we accept. Although this case was
foisted to be a case of direct evidence, there is no
credibility in the statements of the accused-appellant as
the surrounding circumstances have shown, as already
indicated in the earlier parts of the judgment, to be
against them. We may note the golden rule of evidence
that 'men may tell a lie, but the circumstances do not',
which is squarely applicable in this case at hand.
Therefore, we cannot also accept the narrative of the
accused-appellant in the other appeals, as a gospel of
truth."
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Learned counsel has next placed reliance on the judgment of
Hon'ble Supreme Court in Tomaso Bruno and Anr. Versus
State of U.P. 2015 (7) SCC 178, wherein, it was held as
under:-
"To invoke Section 106 of the Evidence Act, the main
point to be established by the prosecution is that the
accused persons were present in the hotel room at the
relevant time. PW-1 Ram Singh-Hotel Manager stated that
CCTV cameras are installed in the boundaries, near the
reception, in the kitchen, in the restaurant and all three
floors. Since CCTV cameras were installed in the prominent
places, CCTV footage would have been best evidence to
prove whether the accused remained inside the room and
whether or not they have gone out. CCTV footage is a
strong piece of evidence which would have indicated
whether the accused remained inside the hotel and
whether they were responsible for the commission of a
crime. It would have also shown whether or not the
accused had gone out of the hotel. CCTV footage being a
crucial piece of evidence, it is for the prosecution to have
produced the best evidence which is missing. Omission to
produce CCTV footage, in our view, which is the best
evidence, raises serious doubts about the prosecution
case.
x.....x.....x......x
The trial court in its judgment held that non-
collection of CCTV footage, incomplete site plan, non-
inclusion of all records and sim details of mobile phones
seized from the accused are instances of faulty
investigation and the same would not affect the
prosecution case. Non-production of CCTV footage, non-
collection of call records (details) and sim details of mobile
phones seized from the accused cannot be said to be mere
instances of faulty investigation but amount to withholding
of best evidence. It is not the case of the prosecution that
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CCTV footage could not be lifted or a CD copy could not be
made"
Learned counsel has next placed reliance on the judgment of
Hon'ble Supreme Court in Navaneethakrishnan Versus The
State by Inspector of Police in Criminal Appeal No.1134 of
2013 decided on 16.04.2018, wherein, it was held as under:-
"Section 27 of the Evidence Act is applicable only if
the confessional statement leads to the discovery of some
new fact. The relevance is limited as relates distinctly to the
fact thereby discovered. In the case at hand, the Yashika
Camera which was recovered at the instance of Accused
No. 3 was not identified by the father as well as the mother
of the deceased. In fact, the prosecution is unable to prove
that the said camera actually belongs to the deceased-John
Bosco. Though the mobile phone is recovered from A-1, but
there is no evidence on record establishing the fact that the
cell phone belongs to the deceased-John Bosco or to PW-8
as the same was not purchased in their name. Further, the
prosecution failed to examine the person on whose name
the cell phone was purchased to show that it originally
belongs to PW-8 to prove the theory of PW-8 that he had
purchased and given it to the deceased John-Bosco.
Further, the material objects, viz., Nokia phone and Motor
Bike do not have any bearing on the case itself. The Nokia
phone was recovered from Accused No. 1 and it is not the
case that it was used for the commission of crime and
similarly the motor cycle so recovered was of the father of
Accused No. 3 and no evidence has been adduced or
produced by the prosecution as to how these objects have
a bearing on the case. In fact, none of the witnesses have
identified the camera or stated the belongings of John
Bosco. The said statements are inadmissible in spite of the
mandate contained in Section 27 for the simple reason that
it cannot be stated to have resulted in the discovery of
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some new fact. The material objects which the police is
claimed to have recovered from the accused may well have
been planted by the police. Hence, in the absence of any
connecting link between the crime and the things
recovered, there recovery on the behest of accused will not
have any material bearing on the facts of the case.
The law is well settled that each and every
incriminating circumstance must be clearly established by
reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. In a case depending largely upon circumstantial
evidence, there is always a danger that conjecture or
suspicion may take the place of legal proof. The court must
satisfy itself that various circumstances in the chain of
events must be such as to rule out a reasonable likelihood
of the innocence of the accused. When the important link
goes, the chain of circumstances gets snapped and the
other circumstances cannot, in any manner, establish the
guilt of the accused beyond all reasonable doubt. The court
has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between
moral certainty and legal proof. There is a long mental
distance between "may be true" and "must be true" and the
same divides conjectures from sure conclusions. The Court
in mindful of caution by the settled principles of law and the
decisions rendered by this Court that in a given case like
this, where the prosecution rests on the circumstantial
evidence, the prosecution must place and prove all the
necessary circumstances, which would constitute a
complete chain without a snap and pointing to the
hypothesis that except the accused, no one had committed
the offence, which in the present case, the prosecution has
failed to prove."
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Learned State counsel who is assisted by counsel for the
complainant has opposed the appeals. They have placed reliance
on the testimony of PW-6 Shiwani, daughter of appellant Suman
Devi as well as PW-7 Sunita, sister of appellant Suman Devi to
establish the factum of illicit relationship of the appellants.
Present case relates to murder of Narendra @ Goliya.
Prosecution 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
justified only when all the incriminating facts and
circumstances are found to be incompatible with
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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 punishment. With the solitary
exception of Section 303, the same policy
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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 respect of one area of the world may not
hold good in respect of another area.
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(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.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative (Downloaded on 30/08/2019 at 10:20:32 PM) (23 of 28) [CRLAD-107/2018] 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."
Appellant Suman Devi is wife of deceased Narendra @ Goliya. As per the prosecution story, appellant had committed the murder of Narendra @ Goliya as the appellants were having illicit relations and deceased had objected to the same.
Let us examine the evidence on record to come to a conclusion as to whether prosecution had been successful in bringing home the guilt of the appellants by completing the chain of circumstances in this regard.
Complainant while appearing in the witness box as PW-1 has deposed as per the contents of the FIR.
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(24 of 28) [CRLAD-107/2018] PW-4 Dr. Ravi Kant Yadav has proved the postmortem report Exhibit-P-6 of the deceased. This witness deposed that the cause of death of the deceased was 'strangulation'.
PW-6 Shiwani, daughter of the deceased and appellant Suman Devi, deposed that her father had been murdered by Raju @ Rajendra, her mother, her maternal uncle Billu Yadav, her maternal grandmother Lakhpati Devi and her maternal grandfather Moti Ram because her mother used to meet Raju @ Rajendra uncle. Her father used to quarrel as her mother used to meet Raju @ Rajendra uncle. On 26.09.2016, she was present in the house of her maternal uncle. At that time, Raju @ Rajendra uncle, her mother, her maternal aunt, maternal uncle, maternal grandfather and maternal grandmother were present there. Her father came to take them home, but her maternal grandmother said that she would not allow them to go at that time and they could go in the morning. However, her father insisted that he would take them at that time. Then her maternal uncle as well as Raju @ Rajendra uncle went out and told her father that he should leave otherwise they would teach him a lesson. Her maternal grandmother made her father sleep in a room and she also slept. When she got up in the morning, she came to know that her father was found hanging on a tree. In-fact, her father had been murdered by her mother, Raju @ Rajendra uncle, maternal uncle, maternal grandfather and maternal grandmother. She identified the accused present in the court.
PW-7 Sunita is the sister of appellant Suman Devi. She deposed that her marriage was performed with Prakash in the year 2002 and her sister Sunita was married to Narendra @ Goliya. Narendra @ Goliya was working in the mine of Raju @ (Downloaded on 30/08/2019 at 10:20:32 PM) (25 of 28) [CRLAD-107/2018] Rajendra. As her brother-in-law was working in the mine of Raju @ Rajendra, due to this reason, Raju @ Rajendra started visiting their house. As a result, Suman Devi developed illicit relations with him. Her brother-in-law objected to this, but Suman Devi did not mend her ways. All of them had tried to make Suman Devi understand, but Suman Devi insisted that she would live separately and thereafter she started residing separately. Thereafter, her husband started running a tent house in Bhagwadi stand, whereas, Narendra @ Goliya started running a tent house in Ateli. After her sister started residing separately, Raju @ Rajendra started visiting their house more often and due to this reason, there used to be a dispute between her brother-in-law and appellant Suman Devi. Then, Suman Devi went to her parental house without telling them and was residing there for the last three/four months prior to the incident. On 26.06.2016, her brother-in-law had taken respectable persons to bring Suman Devi back to the matrimonial home. Her father had taken children of Suman Devi to his house about twenty days prior to the incident, but Suman Devi failed to mend her ways. Narendra @ Goliya after telling her mother-in-law that he was going to bring back his children had left for in-laws house at about 6.00 p.m. On the next day at about 6.00 a.m., she received a phone call from her mother that Narendra @ Goliya was found hanging on a tree.
PW-8 Mamanchand did not support the prosecution story. PW-11 Phoolwati deposed that her son Prakash was married to Sunita, whereas, her son Narendra @ Goliya was married to Suman Devi. Their marriages were performed on the same day. Prakash was running a tent house in Bhagwadi, whereas, Narendra @ Goliya running a tent house in Ateli. Before running a (Downloaded on 30/08/2019 at 10:20:32 PM) (26 of 28) [CRLAD-107/2018] tent house, Narendra @ Goliya was working with Raju @ Rajendra and due to this reason, Raju @ Rajendra used to visit their house and despite their objection, he did not stop visiting their house. Raju @ Rajendra and Suman Devi had developed illicit relations. Suman Devi had gone to her parental house, but she did not return home despite various efforts. About ten days prior to the incident, father of Suman Devi had taken her (Suman Devi) children to his house. A day before incident, Narendra @ Goliya had gone to his in-laws house after telling her. In the morning, she came to know that Narendra @ Goliya had been murdered as there was a dispute between Suman Devi and Narendra @ Goliya on account of visits of Raju @ Rajendra.
The other witnesses have deposed with regard to the investigation conducted by them.
Thus, in the present case, Narendra @ Goliya was married to appellant Suman Devi in the year 2002. From the statements of PW-6 Shiwani, PW-7 Sunita and PW-11 Phoolwati, it transpires that appellants were having illicit relations. Narendra @ Goliya used to work in the mine of appellant Raju @ Rajendra and due to this reason, appellant Raju @ Rajendra started visiting the house of Narendra @ Goliya and developed illicit relations with Suman Devi, wife of Narendra @ Goliya. PW-6 Shiwani is none other than the daughter of appellant Suman Devi and PW-7 Sunita is none other than the sister of appellant Suman Devi. Both the said witnesses had no reason to depose falsely against Suman Devi on account of their close relationship. Statements of Shiwani and Sunita being natural inspire confidence. Both the said witnesses were cross-examined at length, but their testimonies with regard (Downloaded on 30/08/2019 at 10:20:32 PM) (27 of 28) [CRLAD-107/2018] to the involvement of the appellants in the crime could not be shaken.
It is the case of the prosecution that deceased had gone to his in-laws house to bring back his wife and children. PW-6 Shiwani has deposed that she was in the house of her maternal uncle and her father had come to take them back to his house. She has also deposed that Raju @ Rajendra uncle was also present there. She further deposed that Raju @ Rajendra uncle had threatened her father with dire consequences. Deceased had reached the house of his in-laws on 26.09.2016 at 8.00 p.m. and his body was found hanging on a tree in the morning at about 6.00 a.m. A perusal of Exhibit-4 site plan reveals that the dead body of Narendra @ Goliya was found hanging on a tree in the fields of Moti Ram. House of Moti Ram is opposite the fileds and there is a small passage in between the house of Moti Ram and his fields. Deceased has died on account of strangulation while he was in the house of Moti Ram, where appellants were present. There is no plausible explanation, as to under what circumstances death of Narendra @ Goliya has occurred. Although, complainant had stated in Exhibit-P-1 that his brother had committed suicide, but he had also alleged that his brother had been murdered by appellants and others.
Thus, cumulative reading of the entire evidence/ circumstances brought on record by the prosecution point out towards the guilt of the appellants with regard to the commission of crime. Any lapse committed by the Investigating Officer while conducting the investigation cannot come to the aid of the appellants as the circumstances brought on record establish the guilt of the appellants with regard to the commission of the crime (Downloaded on 30/08/2019 at 10:20:32 PM) (28 of 28) [CRLAD-107/2018] in question. Hence, there is no force in the arguments raised by the learned counsel for the appellants.
In the facts and circumstances of the present case, learned Trial Court had rightly ordered the conviction and sentence of the appellants under Section 302 read with Section 34 IPC. There is no quarrel with the proposition of law settled by the judgments relied upon by the learned counsel for the appellants, but the same are not applicable on the facts of the present case.
Accordingly, both the appeals are dismissed. Impugned judgment/order dated 22.01.2018 passed by the trial court are upheld.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Sanjay Kumawat-4-5
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