Rajasthan High Court - Jaipur
Bhola Jadav S/O Shri Jagannath Jadav B/C ... vs State Of Rajasthan Through Pp on 31 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 37/2019
Bhola Jadav S/o Shri Jagannath Jadav B/c Jadav, Aged About 40
Years, R/o Jokta Fatehpur Ps Chandan Dist. Banka (Bihar)
(Presently Confined In Central Jail Jaipur)
----Appellant
Versus
State Of Rajasthan Through PP, Raj.
----Respondent
For Appellant(s) : Mr. Anil Kumar Yadav Advocate
For Respondent(s) : Mr. Javed Chaudhary for the State.
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Order
31/07/2019
Appellant has filed the appeal against the judgment/order
dated 15.01.2019 passed by the trial court, whereby, he was
convicted and sentenced qua offence punishable under Section
302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
Appellant was acquitted qua charge framed against him under
Sections 376/511 read with Section 201 IPC.
FIR No.42 dated 06.02.2013 was registered at Police Station
Jyoti Nagar, District Jaipur City (South) under Section 302/34 IPC
on the basis of the report lodged by complainant- Priya.
Prosecution story, in brief, is that on 05.02.2013,
complainant-Priya had gone to her office at about 9.30 a.m. Jyoti,
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elder daughter of the complainant and their servant Bhola Jadav
(appellant) were present in the house. Preeti, younger daughter of
the complainant had left for her school at 7.30 a.m. When
complainant returned home in the evening between 5.15 to 5.45
p.m., she could not see her daughter Jyoti and she enquired about
her whereabouts from the appellant. Appellant showed his
ignorance about the whereabouts of Jyoti. Then, she enquired
from her mother-in-law, Rajni Bala about the whereabouts of
Jyoti, but she also told her that she had enquired from Bhola
Jadav and Preeti about the whereabouts of Jyoti, but they had not
told her about the said fact. Preeti told her that marriage of
Sangeeta was fixed for the next day and Jyoti might have gone
there. Then, they made a phone call to Jyoti on mobile phone
No.9530166685, but the said mobile phone was switched off.
Then, they tried to search for Jyoti, but could not find her. At
about 9/10 p.m., when she returned home, her mother-in-law
enquired from her about Jyoti and told her that first they should
look for her in the house. When they opened the door of the
drawing room, they found that Jyoti was lying on the floor. A white
and blue colour 'Dupatta' was tied around her neck. Then, they
immediately called their tenant Dharmendra Singh to the spot and
brought Jyoti down stairs. Hands and feet of Jyoti had been tied
and they found that Jyoti was dead.
After completion of investigation and necessary formalities,
challan was presented against the appellant.
Charges were framed against the appellant under Sections
302, 376/511 and 201 IPC.
Appellant did not plead guilty and claimed trial.
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In order to prove its case, prosecution examined twenty four
witnesses, during trial. Appellant when examined under Section
313 Code of Criminal Procedure, 1973, prayed that he was
innocent and had been falsely involved in this case.
Appellant did not examine any witness in his defence.
Trial court vide impugned judgment/order dated 15.01.2019
ordered the conviction and sentence of the appellant under
Section 302 IPC. Appellant was acquitted qua offence punishable
under Section 376/511 and 201 IPC. Hence, the present appeal by
the appellant.
Learned counsel for the appellant has submitted that the
appellant has been falsely involved in this case merely on the
basis of suspicion. Complainant while appearing in the witness box
as PW-1 has deposed that she had no suspicion against the
appellant. Appellant had not committed the murder of her
daughter. In-fact, she suspected that her daughter had been
murdered by Rejeev Dubey and her in-laws family. PW-6
Dharmendra Singh (tenant) and PW-10 Mumtaz Ahmad (tenant)
have also not supported the prosecution case, during trial.
Recovery of mobile phone allegedly belonging to the deceased,
has been falsely foisted on the appellant.
Learned State counsel has opposed the appeal.
Present case relates to murder of Jyoti.
As per the postmortem examination report Exhibit-P-51,
cause of death of the deceased was strangulation. Exhibit-P-51
further reveals that deceased had suffered 14 injuries. It was also
opined by the doctors that hymen of the deceased was 'old healed
torn'. Exhibit-P-51 was proved by PW-13 Doctor Lal Chand Verma.
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The said witness in his cross-examination admitted that there
were no sign of rape or attempt to rape on the dead body.
Present 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 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.
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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
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
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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.
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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 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 (Downloaded on 01/09/2019 at 09:45:44 PM) (8 of 13) [CRLAD-37/2019] 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 evidence led by the prosecution to come to a conclusion as to whether prosecution had been successful in proving the chain of circumstances leading to the guilt of the appellant.
Complainant-Priya while appearing in the witness box as PW- 1 has deposed that appellant had not committed the murder of her daughter Jyoti. She suspected that her daughter had been murdered by Rajeev Dubey and her mother-in-law.
PW-2 Bakhtawar singh has not supported the prosecution case during trial.
PW-3 Preeti has deposed that on 05.02.2013, she had gone to her school at 7.30 a.m. She returned home at 2.00 p.m. and enquired about Jyoti from the appellant. Appellant told her that two boys and one girl had come to meet Jyoti. She had tried to make a call to her sister. Joyti had died on account of strangulation. Her hands and feet had been tied. She suspected that her sister had been murdered by Rajni Dua, Rajeev Dubey and appellant Bhola Jadav. They could not find chappal and mobile (Downloaded on 01/09/2019 at 09:45:44 PM) (9 of 13) [CRLAD-37/2019] phone of her sister. Appellant was working as a servant under her grandfather.
PW-4 Makhhan Singh deposed that deceased was his niece. He could not tell as to who had murdered her, but he suspected that appellant had committed her murder.
PW-5 Palvinder Singh also deposed that he suspected that appellant had committed the murder of Jyoti as they were alone in the house at the time of incident. He had not made any enquiry from the appellant.
PW-6 Dharmendra Singh did not support the prosecution story and said that he did not suspect anyone with regard to the murder of Jyoti.
PW-7 Rajni Rani deposed that on 05.02.2013, Jyoti, her granddaughter had been murdered. Appellant was their servant and used to look after her ailing husband. Priya was her daughter- in-law. When she (witness) had left the house, Priya, Jyoti, appellant and her husband were present at home. She returned home at 12 o'clock and enquired about Jyoti from the appellant. Appellant said that Jyoti had gone to her friend's house. At about 2.00 p.m., Preeti returned home and she (witness) enquired from her about Jyoti. Preeti told her that Jyoti must have gone to the house of Sangeeta. At about 5.00 p.m., Priya came home and they all started searching for Jyoti, but could not find her. Then, Priya, Preeti and appellant Bhola Jadav went upstairs and found that Jyoti was lying in the guest room and her hands and feet had been tied with a rope. Jyoti was brought downstairs and they found that Jyoti had died. She suspected that Jyoti had been murdered by appellant-Bhola Jadav because he was the only person present (Downloaded on 01/09/2019 at 09:45:44 PM) (10 of 13) [CRLAD-37/2019] in the house and her husband was not in a position to move about.
PW-8 Kundan Lal did not support the prosecution case, during trial.
PW-9 Rajni Bala deposed that on 05.02.2013 at about 9.25 p.m., she had received a phone call from an unknown number. She was told by younger sister of Priya that Jyoti was missing since morning and could not be located. Then again, she received another call after 10 minutes and she was called to the house of Jyoti. When she reached the spot, she saw that Jyoti was lying in the main hall and had been covered with a quilt. When she enquired as to what had happened to Jyoti, she was told that she had been found dead in the room on the upper floor. Priya suspected that Bhola Jadav had murdered Jyoti.
PW-10 Mumtaz Ahmad did not support the prosecution case, during trial. In his cross-examination, he deposed that on the day of incident at about 10.30 to 11.30 a.m., Rajni Rani and Rajeev Dubey were present in the house and had left the house in a hurry and both of them were sweating.
PW-12 Veer Bahadur Meena and PW-15 Satyaprakash Rana did not support the prosecution case, during trial.
The other witnesses have deposed with regard to the investigation conducted in the case.
PW-24 Mohar Singh is the Investigating Officer and has deposed with regard to the investigation conducted by him. In his cross-examination, he deposed that during investigation, he had searched the house of Rajeev Dubey and some weapons were recovered. He also stated that the deceased and her mother were using mobile phone bearing No.9350166685. (Downloaded on 01/09/2019 at 09:45:44 PM)
(11 of 13) [CRLAD-37/2019] Thus, in the present case, complainant herself, during trial has deposed that the appellant had not murdered her daughter. So far as sister of the deceased is concerned, she has raised suspicion over the appellant qua the murder of her sister.
PW-7 Rajni Rani, grandmohter of the deceased, PW-4 Makhhan Singh and PW-5 Palvinder Singh have raised suspicion against the appellant.
It is a settled proposition of law that suspicion, howsoever strong cannot take place of proof.
PW-10 Mumtaz Ahmad is the tenant in the house, where the murder had taken place. The said witness in his cross-examination deposed that at about 10.30 to 11.30 a.m., he had seen Rajni Rani and Rajeev Dubey in the house and they had left the house in a hurry and both of them were sweating. PW-7 Rajni Rani has also admitted in her cross-examination that on 05.02.2013, Rajeev Dubey had visited their house. Thus, it cannot be said that on the day of incident, appellant was alone in the house.
Since, the present case rests on circumstantial evidence, motive gains significance. Prosecution had projected that appellant wanted to rape Jyoti and due to this reason, he had committed her murder. However, the prosecution had failed to establish that the appellant had attempted to commit the offence of rape and was acquitted by the trial court qua charge framed against him under Section 376/511 IPC. Hence, appellant had no motive to commit the murder of Jyoti.
During investigation, recovery of mobile phone belonging to the deceased was effected at the instance of the appellant on 14.02.2013.
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(12 of 13) [CRLAD-37/2019] As per PW-7, Rajni Rani appellant was taken by the police on 05.02.2013 itself.
PW-6 Dharmendra Singh attesting witness to Exhibit-P-11, memo of recovery of mobile phone and chappal of the deceased, has not supported the prosecution case, during trial.
PW-14 Tundaram, police official who is an attesting witness to Exhibit-P-11 has deposed in his cross-examination that chappal and mobile phone were recovered from separate places. Mobile phone and chappal were recovered from the first floor and were lying under the table. Mobile phone was in broken condition and its battery was lying out of the phone. The door of the room was open. On the other hand, as per Exhibit-P-10, the mobile phone and chappal of the deceased were recovered, from the box lying in the room of the appellant, in the basement. Hence, the recovery of the mobile phone and chappal of the deceased at the behest of the appellant is rendered doubtful.
Thus, in the present case, it can be said that the prosecution story rests on suspicion. Moreover, complainant as well as the tenant, who were present in the house at the time of incident have not supported the prosecution case against the appellant.
It is a settled proposition of law that the prosecution is required to prove its case beyond the shadow of reasonable doubt by leading convincing and cogent evidence against an accused. An accused is presumed to be innocent till proved guilty. However, in the present case, prosecution has failed to complete the chain of circumstances leading to the guilt of the appellant and negate the possibility of his innocence. In the present case, the possibility that somebody else might have committed the murder of Jyoti (Downloaded on 01/09/2019 at 09:45:44 PM) (13 of 13) [CRLAD-37/2019] cannot be ruled out. Hence, appellant is liable to be acquitted by giving him benefit of doubt.
Accordingly, appeal is allowed. Appellant is acquitted of the charge framed against him under Section 302 IPC. Consequently, impugned judgment/order passed by the trial court dated 15.01.2019 are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other criminal case.
In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Bhola Jadav S/o Shri Jagannath Jadav is directed to furnish a personal bond in the sum of Rs.25,000/-, 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 appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Sanjay Kumawat-72
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