Rajasthan High Court - Jaipur
Dhani Ram vs State Of Rajasthan Through Pp on 18 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 544/2016
Dhani Ram S/o Shri Ram Prasad, B/c Meena, R/o Kherli Road,
Police Station Kherli Ganj, District Alwar (Raj.) (At present
confined in Central Jail Sewar, Bharatpur).
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat Adv. For Respondent(s) : Mr. Javed Chaudhary, P.P. HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 18/07/2019 Appellant had faced trial in FIR No.190 dated 26.04.2012 registered at Police Station Nadbai, District Bharatpur for the offence punishable under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') along with his co-accused Meera.
FIR was lodged by the complainant Hari Singh to the effect that on 25.04.2012 at about 5.30. p.m., he had found a dead body in the vacant fields. There were injuries on the neck and abdomen of the deceased and his clothes were soaked in blood. Bad smell was emitting from the dead body. On the basis of the statement of complainant, formal FIR was registered.
After completion of investigation and necessary formalities, challan was presented against the appellant and his co-accused Meera.
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(2 of 8) [CRLA-544/2016] Charges were framed against the accused under Sections 302 and 201 IPC. Accused did not plead guilty and claimed trial.
In order to prove its case, prosecution examined twenty seven witnesses, during trial. Accused when examined under Section 313 Code of Criminal Procedure, 1973 after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case.
Accused examined one witness in their defence. Trial court vide impugned judgment/order dated 07.04.2016 ordered the conviction and sentence of the appellant under Section 302 and 201 IPC. Co-accused Meera was acquitted of the charges framed against her.
Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. Prosecution had failed to prove its case.
Learned State counsel has opposed the appeal. Present case relates to murder of Pappu @ Prem Singh. 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 (Downloaded on 01/09/2019 at 07:54:40 PM) (3 of 8) [CRLA-544/2016] 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 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 (Downloaded on 01/09/2019 at 07:54:40 PM) (4 of 8) [CRLA-544/2016] 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.
(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 (Downloaded on 01/09/2019 at 07:54:40 PM) (5 of 8) [CRLA-544/2016] 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 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."
Let us examine the circumstances brought on record by the prosecution to establish its case with a view to come to a (Downloaded on 01/09/2019 at 07:54:40 PM) (6 of 8) [CRLA-544/2016] conclusion as to whether the prosecution has been successful in proving its case.
Parties are closely related to each other. Appellant is the son of the sister of the deceased. Co-accused Meera is the wife of the deceased. As per the prosecution story, appellant and his co- accused Meera were having illicit relations and due to this reason, they had committed murder of Pappu @ Prem Singh.
Thus, the first circumstance brought on record by the prosecution is with regard to the illicit relationship of the appellant with Meera. In this regard, PW-12 Umesh Chand Meena, brother of the deceased has deposed that the appellant and his co- accused Meera were having illicit relations. Appellant had got a tattoo on his hand and chest, proclaiming his love for Meera.
PW-13 Jagdish, brother of the deceased has corroborated the statement of PW-12.
PW-11 Kesar Singh deposed with regard to the investigation conducted by him. During cross-examination, he deposed that the appellant had inscribed on his hand and chest name of Meera. It has been noticed by the trial court that when the appellant was asked as to whether he had any objection in showing his hand and chest, then the appellant voluntarily showed his hand and chest, wherein, it was inscribed "Meera I Love You Meera".
Thus, the prosecution had been successful in establishing this circumstance, during trial that the appellant was in love with Meera, wife of the deceased.
The next circumstance that has been brought on record by the prosecution is that the appellant was last seen in the company of the deceased.
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(7 of 8) [CRLA-544/2016] In this regard, the statement of PW-25 Mukat Singh is relevant. PW-25 Mukat Singh has deposed that he was working as a cook/halwai. He knew appellant Dhani Ram present in the court. He had gone to cook food at a marriage at Kherli Ganj along with the appellant and Pappu @ Prem Singh. On that day, Pappu @ Prem Singh was wearing a black colour jeans and a black colour shirt. Dhani Ram at that time was supporting long hair. They had worked on 23.04.2012 at Kherli Ganj up to midnight. On that day, Dhani Ram and Pappu @ Prem Singh had gone to the jungle to answer the call of nature. They had stayed at Kherli Ganj at night. When they locked the room at that time, Dhani Ram and Pappu @ Prem Singh were not there. When he got up in the morning at about 5.00 a.m., he found that Chandu was sleeping and behind him, Dhani Ram was sleeping. He enquired from Dhani Ram as to where was his uncle and he replied that he had left by night train. He enquired from him about the opening of the lock, but appellant did not give him any answer.
Thus, from the testimony of PW-25, it is evident that the appellant had left with the deceased during the night intervening 23/24.04.2012. Appellant had returned but deceased had not returned with him.
Another circumstance relied upon by the prosecution to substantiate the fact that recovered dead body was of pappu @ Prem Singh is that on 19.04.2012, deceased had deposited money in the account of Rajesh. The slip in this regard was found near the place where the dead body was recovered.
PW-17 Dr. Pawan Gupta deposed that on 27.04.2012, he had conducted the post-mortem examination on the dead body of the deceased. He proved his report in this regard Exhibit-P-24. He (Downloaded on 01/09/2019 at 07:54:40 PM) (8 of 8) [CRLA-544/2016] further deposed that time between death and post-mortem examination was three to four days. He has deposed in his cross- examination that the dead body was capable of being identified.
Thus, the argument raised by the learned counsel for the appellant that it was not proved that the recovered dead body was of Pappu @ Prem Singh, is without any force.
As per Exhibit-P-6, bushirt and vest (Baniyan) worn by the deceased having blood stains, were taken in possession. As per Exhibit-P-14, pant of the deceased, which was stained with blood, was recovered at the instance of the appellant on the basis of his disclosure statement suffered under Section 27 of the Indian Evidence Act, 1872. As per report of the Forensic Science Laboratory Exhibit-23, the blood group of the blood stains found on the bushirt, vest (Baniyan) and pant were found same i.e. 'A' group.
We are of the opinion that the cumulative effect of the circumstances brought on record by the prosecution fully established the guilt of the appellant and negate the possibility of his innocence. Hence, the learned Trial Court had, thus, rightly ordered conviction and sentence of the appellant under Sections 302 and 201 IPC.
Accordingly, this appeal is dismissed. Impugned judgment/ order dated 07.04.2016 passed by the trial court are upheld.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Sanjay Kumawat-55
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