Dismissed

Raju @ Rajendra Prasad v. State of Rajasthan through P P

Rajasthan HC11 Jul 2019CRLAD/106/2018

Case brief

AI extract

What is this about?

In a murder appeal, the High Court dismissed the appeals of a wife and her alleged lover convicted of murdering her husband. Upholding the trial court's verdict, the bench found that the prosecution successfully established a complete chain of circumstantial evidence, including illicit relations and motive, sufficient to sustain the conviction.

What did the court decide?

Both criminal appeals dismissed; impugned judgment and sentence of life imprisonment and fine upheld.

Raju @ Rajendra Prasad Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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1. D.B. Criminal Appeal No. 107/2018

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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.

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----Appellant

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Versus

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State Of Rajasthan Through PP.

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----Respondent

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2. D.B. Criminal Appeal (Db) No. 106/2018

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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.

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----Appellant

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Versus

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State Of Rajasthan Through PP.

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----Respondent

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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.

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HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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11/07/2019

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Vide this order above mentioned two appeals would be disposed of.

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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.

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After completion of investigation and necessary formalities, challan was presented against the appellants.

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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.

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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.

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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.

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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

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State Rep. Inspector of Police, Bagayam Police Station,

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Vellore 2016(10) SCC 298 , wherein, it was held as under:-

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“The competing arguments and the materials

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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.

¶38

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.

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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.

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The medical evidence does not refer to any external injury indicative of use of any external force on the deceased, resulting in his antemortem 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.

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x…….x…...x…...x

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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.

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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

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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.

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(3) the circumstances should be of a conclusive nature and tendency.

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- - (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.”

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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

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under:-

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“The prosecution relied upon the following circumstances to prove the charges against the accused:-

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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.

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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.

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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.

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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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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).

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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.

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Mark of blood stains found in the said Khukri.

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The Investigating Officer also noticed blood stains in the bathroom of bungalow No.17.

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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.

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x…...x….x…...x

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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.

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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 PW11 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.

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x…..x…..x…...x

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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:

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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.

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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.

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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].”

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In Arjun Marik V. State of Bihar, 1994 Supp (2) SCC 372 this court held that :-

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“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.”

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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 unrebutted 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 :-

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“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.

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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. ”

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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:-

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“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.

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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;

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(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;

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(3) the circumstances should be of a conclusive nature and tendency;

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(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.

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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.

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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.

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x…..x…..x…...x

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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

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under:-

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“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

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The trial court in its judgment held that noncollection of CCTV footage, incomplete site plan, noninclusion 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, noncollection 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“

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Learned counsel has next placed reliance on the judgment of

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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:-

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“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.

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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.

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Present case relates to murder of Narendra @ Goliya. Prosecution case rests on circumstantial evidence.

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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:-

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“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.”

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It has also been held by the Hon’ble Supreme Court in

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Bachan Singh vs. State of Punjab 1980 (2) SCC 684 , as

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under:-

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“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:

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(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.

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(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.

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(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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(22 of 28)

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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.

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(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.

¶159

(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

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(23 of 28)

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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 tinconstitutional under Article 21.”

¶164

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.

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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.

¶166

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]

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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’.

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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.

¶170

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 @

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(25 of 28)

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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.

¶174

PW-8 Mamanchand did not support the prosecution story.

¶175

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

¶176

(26 of 28)

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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.

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The other witnesses have deposed with regard to the investigation conducted by them.

¶180

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

¶181

(27 of 28)

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to the involvement of the appellants in the crime could not be shaken.

¶184

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.

¶185

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

¶186

(28 of 28)

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in question. Hence, there is no force in the arguments raised by the learned counsel for the appellants.

¶189

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.

¶190

Accordingly, both the appeals are dismissed. Impugned judgment/order dated 22.01.2018 passed by the trial court are upheld.

¶191

(GOVERDHAN BARDHAR)J.

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(SABINA)J.

¶193

Sanjay Kumawat-4-5

Raju @ Rajendra Prasad v. State of Rajasthan through P P

Case brief

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Raju @ Rajendra Prasad v. State of Rajasthan through P P

Case brief

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