HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 874/2014 [ENTITY] S/o Sh. Babulal, by caste Thakur, R/o Nare Ka Pura (Majhara), Police Station Nibohara, District Agra (U.P.) (presently lodged in central jail at Bharatpur) Accused-appellant Versus [ENTITY] Through Pp Respondent Connected With D.B. Criminal Appeal No. 774/2014 [ENTITY] S/o Sh. Maharaj Singh, by caste Thakur, R/o Kanhaki Police Station Diholi District Dholpur. At present in District Jail, Dholpur. Accused-Appellant Versus [ENTITY] Through Pp Respondent D.B. Criminal Appeal No. 796/2014 [ENTITY] S/o Man Singh, aged about 35 years, by caste Thakur, R/o Gopalpura, Police Station, Rajakhera, District Dholpur (Rajasthan) Complainant-Appellant Versus 1. The [ENTITY] through PP Non-petitioner 2. [ENTITY] S/o Babu Lal, by caste Thakur, R/o Narekapura (Mazhara), Police Station Nibora, District Agra (U.P.) 3. [ENTITY] S/o Maharaj, Police Station, Thakur, R/o Kanahaki, Police Station Deholi, District Dholpur (Rajasthan) Accused-Respondents For Appellant(s) : Mr. [ENTITY] with Mr. R.M. Sharma, Mr. [ENTITY] and Mr. [ENTITY] for Mr. [ENTITY] For Respondent(s) : Mrs. [ENTITY], PP (Downloaded on 01/09/2019 at 08:25:59 PM) (2 of 14) [[CASE NUMBER]] For Complainant : Mr. [ENTITY] in appeal No.874/2014 and 774/2014 HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 22/07/2019 Vide this order above mentioned three appeals would be disposed of. On 10.8.2011, Complainant-[ENTITY] approached the police of Police Station Rajakhera for taking action against [ENTITY], [ENTITY], [ENTITY] and two unknown persons. It was stated by Complainant-[ENTITY] in his complaint that his sister [ENTITY] was married to [ENTITY] about 11 years back, as per Hindu Rites. His sister was being harassed by her husband [ENTITY] and [ENTITY] on account of insufficiency of dowry given by them at the time of her marriage. [ENTITY] had come to her parental house about 10 days earlier. On 8.8.2011 at about 10.00 a.m. [ENTITY] made a phone call to his sister and told her that she should get ready and he would reach there on his motorcycle. [ENTITY] told [ENTITY], wife of the complainant that she was going to her matrimonial home as she had received a phone call from her husband. After about one hour, [ENTITY] alongwith his cousin brother [ENTITY] came on a motorcycle and they took [ENTITY] with them. Another motorcycle was also parked on the road and they all left their village. Complainant called his sister [ENTITY] on 9.8.2011 on her phone but her mobile phone was switched off. Then he went to her village but his sister was not present in her matrimonial home. When complainant made an (Downloaded on 01/09/2019 at 08:25:59 PM) (3 of 14) [[CASE NUMBER]] inquiry from [ENTITY] and [ENTITY] regarding his sister, they did not give him any satisfactory reply. Thereafter, on 15.8.2011, formal FIR (Exhibit P-6) bearing No.190 was registered at Police Station Rajakhera, District Dholpur under [SECTION]/120B [ACT]. The contents of the FIR, in brief, are that on 10.8.2011, missing report of [ENTITY] D/o [ENTITY] was received. During enquiry, statements of witnesses were recorded. Efforts were made to search [ENTITY], [ENTITY] and [ENTITY]. On 14.8.2011 at about 2.00 p.m., a secret information was received and on the basis of the same, [ENTITY] and [ENTITY] were apprehended. On the basis of their disclosure statements, one skeleton and clothes/articles of the deceased were recovered. Complainant party were also called to the spot. Complainant identified the clothes/articles recovered from the spot as belonging to his sister [ENTITY]. After completion of investigation and necessary formalities, challan was presented against Accused [ENTITY] and [ENTITY]. Charge was framed against the accused under [SECTION] [ACT]. Accused did not plead guilty and claimed trial. In order to prove its case, prosecution examined 13 witnesses. Accused [ENTITY] when examined under [SECTION] [ACT], prayed that on 8.8.2011, he was present in his house and he had gone to a temple and had returned home in the evening. He did not know about the incident. He had been falsely involved (Downloaded on 01/09/2019 at 08:25:59 PM) (4 of 14) [[CASE NUMBER]] in this case by his in-laws family as he was not having good relations with them. He or his wife had no grievance against each other. Accused [ENTITY] when examined under [SECTION] [ACT] prayed that he was innocent. He had not gone with [ENTITY] to bring [ENTITY]. He had been falsely involved in this case. Accused did not examine any witness in their defence. Trial court vide impugned judgment/order dated 26.6.2014 ordered the conviction and sentence of the accused under [SECTION] [ACT]. Hence, accused have filed the appeals challenging their conviction and sentence as ordered by the trial court, whereas, complainant has filed the appeal seeking enhancement of sentence. Learned counsel for accused has submitted that the prosecution had miserably failed to prove its case. As per the prosecution story, accused [ENTITY] had made a phone call to his wife on 8.8.2011. However, no call details were proved on record in this regard. The circumstance of last seen of the accused with [ENTITY] was a concocted story. All the witnesses are close relatives to [ENTITY] and had deposed falsely to involve the accused in this case. There was no postmortem examination report on record to establish the cause of death of the deceased. Moreover, there was no material on record to connect the fact that the Skeleton which has been recovered was of deceased [ENTITY]. Blood sample of [ENTITY] was allegedly taken on 21.9.2011, whereas, it reached Forensic Science Laboratory on 17.10.2011. There was no evidence to establish that blood sample had been stored in (Downloaded on 01/09/2019 at 08:25:59 PM) (5 of 14) [[CASE NUMBER]] proper condition or tampered before it was examined. The person, who had taken blood sample of [ENTITY], mother of the deceased was not examined during trial. Hence, prosecution had failed to complete chain of circumstances bringing home the guilt of the accused. Prosecution had failed to examine [ENTITY] as well as [ENTITY], daughter of the deceased during trial. [ENTITY], who had allegedly accompanied PW-5 [ENTITY] had not been examined during trial. Learned State Counsel as well as counsel for the complainant have opposed the appeals filed by the accused challenging their conviction and sentence. Learned counsel for the complainant has submitted that, in- fact, accused were liable to be awarded death penalty on account of heinous crime committed by them. Learned State counsel has submitted that the prosecution has been successful in proving its case. The fact that the call details have not been proved on record, is not fatal to the prosecution story as [ENTITY] had gone to his in-laws house and could visit the said house even without making a phone call. Learned State counsel has further submitted that from the report of the Forensic Science Laboratory Exhibit P-25, it was evident that blood sample had reached the laboratory in a sealed and untampered condition. Present case relates to murder of [ENTITY]. Case rests on circumstantial evidence. (Downloaded on 01/09/2019 at 08:25:59 PM) (6 of 14) [[CASE NUMBER]] It has been held by the Hon'ble Supreme Court in case of [PRECEDENT], 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. 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 [PRECEDENT], 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 (Downloaded on 01/09/2019 at 08:25:59 PM) (7 of 14) [[CASE NUMBER]] this Court in [ENTITY]'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 [ACT] and the [ACT], 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], the same policy permeates [SECTION] and some other sections of the [ACT], 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 [PRECEDENT] 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 [PRECEDENT] 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 [ACT], is not applicable in India. We do not have in out [ACT] any provision like the [ACT], 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. (Downloaded on 01/09/2019 at 08:25:59 PM) (8 of 14) [[CASE NUMBER]] 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], [ACT] is not violative of [SECTION] of the [ACT] 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], [ACT], "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 [ACT] in a trial regulated by the [ACT] 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 [SECTION] and [SECTION], [ACT] 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
Let us examine as to whether prosecution, in the present case, has been successful in completing the chain of circumstances leading to the guilt of the accused.
(9 of 14) [[CASE NUMBER]] The first circumstance brought on record by the prosecution is last seen evidence. In this regard, complainant-[ENTITY] while appearing in the witness box as PW-12 deposed that his sister [ENTITY] was married to [ENTITY] about 10/11 years ago. Out of the said wedlock, two daughters were born to his sister aged about 5 years and 2 years (now). [ENTITY] had told him that she was being harassed by her mother-in-law. [ENTITY] was having illicit relations with his sister-in-law [ENTITY]. [ENTITY] had come to their house about 10 days prior to 8.8.2011. On 8.8.2011, [ENTITY] received a phone call from [ENTITY] at about 10.00 a.m. and he told her that he was coming on a motorcycle and would take her for medical help. Then, [ENTITY] and [ENTITY] came to their house at about 11.30 a.m. on a motorcycle bearing No. UP-80-BD-6406 and took [ENTITY] with them on their motorcycle. Motorcycle was being driven by [ENTITY] and [ENTITY] sat in the middle, whereas, his sister [ENTITY] sat behind [ENTITY]. [ENTITY] was wearing red colour saree, white blouse and red colour petticoat. [ENTITY] was also wearing brass like bangles and chapples. [ENTITY], however, did not return home, although, [ENTITY] had said that they would return within half an hour or so. When he enquired from [ENTITY] and [ENTITY] about the whereabouts of his sister, they replied that they did not know about her whereabouts. On 9.8.2011, he called [ENTITY] on her phone, but the same was switched off. Then, he informed the police on 10.8.2011 that his sister was missing. On 14.8.2011, he received a phone call from the police telling him that they had recovered a dead body in the Jungle. Then they reached the spot and found that [ENTITY] (10 of 14) [[CASE NUMBER]] and [ENTITY] were also present there alongwith the police. Saree, blouse, petticoat and bangles were taken in possession from the spot. Bones were also taken in possession from the spot. He identified the clothes of his sister.
PW-1 [ENTITY], father of the deceased and PW-11 [ENTITY], mother of the deceased, have duly corroborated the statement of PW-12.
Thus, from the statements of the said witnesses it stands established that on 8.8.2011 accused [ENTITY] and [ENTITY] had taken [ENTITY] with them on their motorcycle on the pretext of providing her some medical help. The fact that [ENTITY], wife of the complainant has not examined during trial, is not fatal to the prosecution story because the accused had taken [ENTITY] with them in the presence of PW-1 [ENTITY], PW-11 [ENTITY] and the complainant (PW-12).
Another argument raised by the learned counsel for the accused that call details had not been proved on record to establish the fact that accused [ENTITY] had, in-fact, made a phone call to his wife on 8.8.2011 is also not fatal to the prosecution story because deceased was staying in her parental home and [ENTITY] being her husband could have visited the parental home of [ENTITY] with a view to meet his wife. Although, call details of the phone belonging to [ENTITY] have not been placed on record, but the said fact in itself cannot be said to be fatal to the prosecution story because in the present case, the statements of PW-1, PW-11 and PW-14 inspire confidence. The said witnesses have categorically deposed that on 8.8.2011, (11 of 14) [[CASE NUMBER]] [ENTITY] and [ENTITY] had come at about 11.30 a.m. and had taken [ENTITY] with them on their motorcycle. The said witnesses were cross-examined at length, but their testimony in this regard could not be shaken. Hence, prosecution had been successful in establishing the circumstance that [ENTITY] had been taken by [ENTITY] and [ENTITY] on their motorcycle on 8.8.2011. Thereafter, [ENTITY] was found missing.
The next circumstance brought on record by the prosecution is that the skeleton of the deceased was recovered at the instance of the accused. In this regard, PW-4 [ENTITY] deposed that on 10.8.2011, he was posted as Assistant Sub-Inspector at Police Station Rajakhera, District Dholpur. He had recorded the statements of [ENTITY], [ENTITY] and [ENTITY] on 12.8.2011. On receipt of secret information on 14.8.2011 that [ENTITY] and [ENTITY] had been seen on the road in village Dholpur, they reached the spot and apprehended [ENTITY] and [ENTITY]. They enquired from them regarding whereabouts of [ENTITY]. Then [ENTITY] told them that in the area of [ENTITY], he had murdered [ENTITY] in the Jungle. Accused [ENTITY] also showed that he knew the said fact. Then, both of them took them to [ENTITY] area. The relatives of [ENTITY] were also called to the spot. Then [ENTITY] stated that he had murdered [ENTITY] in the Jungle by strangulating her with a scarf and had, thereafter, thrown her body in the drain. [ENTITY] was made to guard the spot at the time of commission of murder. About 100 metres from the drain, one pair of chapples, one petticoat, one saree, blouse, one torn scarf and silver anklets were (12 of 14) [[CASE NUMBER]] found and were taken in possession. Bones were also found near the spot, which were also taken in possession. The clothes and other articles of the deceased were identified by her brother [ENTITY].
Thus, from the statement of PW-4 [ENTITY], it is evident that the clothes of the deceased as well as her skeleton were recovered at the instance of the accused and were taken in possession.
PW-6 Doctor [ENTITY] had deposed that on 14.8.2011, a skeleton was produced for postmortem examination. However, they had referred the same to Forensic Science Laboratory vide Exhibit P-21 for ascertaining as to whether the bones were of a male and a female. They had given opinion that bones collected were of a human being. In his cross examination, he deposed that they had conducted the postmortem examination on 14.8.2011 but then again he said that he was not sure whether postmortem examination had been conducted or not.
Thus, in the present case, there is no postmortem examination report on record.
The next circumstance brought on record by the prosecution is the DNA examination report of the skeleton. The said report is Exhibit P-25. As per the said report, the blood sample of [ENTITY] was compared with the skeleton. It was concluded that the skeleton of the deceased was of the biological daughter of [ENTITY].
(13 of 14) [[CASE NUMBER]] PW-11 [ENTITY] while appearing in the witness box has deposed that her blood sample was taken for sending the same for DNA examination. She has also proved Exhibit P-23 in this regard. Exhibit P-23 is the identification form of [ENTITY] at the time of taking of her blood sample. The said form bears the photograph of [ENTITY] as well as her thumb impression and it is attested by complainant [ENTITY]. The blood sample was collected on 21.9.2011. Thus, merely because the person, who actually took the blood sample of [ENTITY] has not been examined during trial, is not fatal to the prosecution story because the fact that the blood sample of [ENTITY] was taken for DNA examination, is duly established from Exhibit P-23 which has been proved by [ENTITY] as well as PW-9 Doctor [ENTITY].
Thus, the prosecution has been successful in completing the entire chain of circumstances leading to the guilt of the accused. Accused had taken [ENTITY] with them on 8.8.2011 from her parental house. The said fact is duly established from the statements of the brother of the deceased as well as her parents. The skeleton of the deceased as well as clothes worn by her were recovered during enquiry of the case at the instance of the accused. As per the DNA test examination report Exhibit P-25, the skeleton recovered was of biological daughter of [ENTITY]. There is no force in the arguments raised by learned counsel for the accused.
Hence, we are of the opinion that all the circumstances brought on record by the prosecution lead to the conclusion that (14 of 14) [[CASE NUMBER]] the accused are guilty of committing murder of [ENTITY] and negate the possibility of somebody else having committed the murder.
Learned trial court had, thus, rightly ordered the conviction of the accused under [SECTION] [ACT]. Trial court has sentenced the accused to undergo imprisonment for life with fine of Rs.10,000/- each. It was further ordered that in case default of payment of fine, accused would further undergo simple imprisonment for six months. There is no such circumstance brought on record which would warrant imposition of death penalty to the accused. The present case does not fall within the definition of rarest of the rare case to award sentence of the death penalty to the accused.
Accordingly, all the appeals are dismissed. Impugned judgment/order dated 26.6.2014 passed by the trial court are upheld.
([ENTITY] (SABINA),J Brijesh 17-19. Powered by [ACT] (www.tcpdf.org)