HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 1397/[SECTION]6 [ENTITY] S/o [ENTITY] B/c [ENTITY], R/o Naya Gaon, Durjanpura, P.s. Ayana, District Kota. Accused Appellant In Kota, Jail. Appellant Versus [ENTITY] Through P.p. Respondent
Connected With D.B. Criminal Appeal No. 1334/[SECTION]6 [ENTITY] S/o [ENTITY] B/c [ENTITY], R/o Rampuriya, Police Station Itawa, District Kota, Rajasthan. At Present Lodged In Central Jail, Kota.
Appellant Versus [ENTITY] Through P.p.
Respondent For Appellant(s) : Mr. [ENTITY] and Mr. [ENTITY] on behalf of Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY] for the State HON'BLE MRS. JUSTICE [ENTITY] MR. JUSTICE [ENTITY] Judgment 02/08/[SECTION]9
Vide this order above mentioned two appeals would be disposed of.
Appellants had faced trial along with their co-accused [ENTITY] in FIR No. 180 dated 09.07.[SECTION]2 registered at police Station Itawa, District Kota Rural under [SECTION] of [ACT] (hereinafter referred as '[ACT]'). FIR was lodged (2 of 11) [CRLA-1397/[SECTION]6] at the instance of [ENTITY]. Complainant had lodged the FIR on account of recovery of an unknown dead body in his Well on 09.07.[SECTION]2 at about 7.00 a.m. After completion of investigation and necessary formalities, challan was presented against the appellants and their co-accused [ENTITY].
Charges were framed against the appellants under [SECTION], [SECTION] and [SECTION] [ACT] Appellants did not plead guilty and claimed trial.
In order to prove its case, prosecution examined 22 witnesses, during trial. Appellants when examined under [SECTION] [ACT], after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case. Appellants did not examine any witness in their defence.
Trial Court vide judgment/order dated 17.09.[SECTION]6 ordered the conviction and sentence of the appellants under [SECTION] and [SECTION] [ACT] So far as co-accused [ENTITY] is concerned, he was acquitted of the charges framed against him. Hence, the present appeals by the appellants.
Learned counsel for the appellants have submitted that the prosecution had miserably failed to prove its case. Appellants had been falsely involved in this case. Prosecution had failed to establish any motive during trial with the appellants to have committed the murder of [ENTITY]. Recovery of driving licence of deceased [ENTITY] has been falsely foisted on appellant [ENTITY]. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in [PRECEDENT], wherein it was held as under:-
(3 of 11) [CRLA-1397/[SECTION]6] "The Doctor PW I9, who conducted the autopsy, while issuing the post-mortem certificate Exh. Pl0, categorically stated that the exact cause of death cannot be ascribed and reserved his opinion, pending the result of chemical analysis. On getting the report of the Assistant Chemical Examiner Exh. P11, the said doctor PW19 gave a final report as per Exh. P12, which indicated that the deceased sustained head injury, which if ante-mortem, could result in death and the injury, if ante-mortem, could be caused by hitting with stones like M.Os.11 or 12. The said report further revealed that nobody could say that there was violence on the neck of the deceased or not. When the doctor itself has not been able to give a definite opinion as to the injuries found on the dead body, whether could be ante-mortem or post-mortem and the dead body itself was found on 30th of March, 1988 and [ENTITY] alleged to have been seen in the company of accused last on 3.3.88, it is difficult for us to sustain the conclusion of the High Court that the death of [ENTITY] can only be homicidal." Learned State counsel, has opposed the appeals. Present case relates to murder of [ENTITY]. 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 [SECTION]2 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 (4 of 11) [CRLA-1397/[SECTION]6] 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:-
(5 of 11) [CRLA-1397/[SECTION]6] "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 [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 (6 of 11) [CRLA-1397/[SECTION]6] 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.
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.
(7 of 11) [CRLA-1397/[SECTION]6]
(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 (8 of 11) [CRLA-1397/[SECTION]6] procedure established by law is not tin-constitutional under [SECTION]."
Complainant [ENTITY] PW-1 had found the dead body of [ENTITY] in the Well in his fields and had reported the matter to the police. Postmortem examination report is Exhibit-P-24. The said report has been proved by PW-9 Dr. [ENTITY].
PW-9 has deposed that when he had conducted the postmortem examination, he found that there was no external injury on the person of the deceased. There were fractures of temporal and parietal bone, but it could not be defined as to whether, the same were ante-mortem or post-mortem because the dead body was in an advance stage of decomposition. As per the postmortem report, cause of death of the deceased remained undetermined due to advance decomposition. It was further observed that final opinion would be given after F.S.L. report. Bone piece had been sent to F.S.L. for D.N.A. testing.
As per Exhibit-C-2, no poison was found in the visceras of the deceased. There is no D.N.A. test examination report on record.
Thus, in the present case, as per the medical evidence, it is evident that the deceased had not suffered any external injury. Cause of death of the deceased has also not come on record.
PW-2 [ENTITY] has corroborated the statement of PW-1 with regard to recovery of the dead body from the Well.
PW-3 [ENTITY] deposed that a dead body was taken out of the Well by the police and [ENTITY] in this regard, Exhibit-P-2 was prepared.
PW-4 [ENTITY] has corroborated the statement of PW-3.
(9 of 11) [CRLA-1397/[SECTION]6] PW-5 [ENTITY] did not support the prosecution case, during trial and was declared hostile.
PW-6 [ENTITY] did not support the prosecution case, during trial and was declared hostile.
PW-8 [ENTITY] did not support the prosecution case, during trial and was declared hostile.
PW-11 [ENTITY] did not support the prosecution case, during trial and was declared hostile.
PW-12 [ENTITY] did not support the prosecution case, during trial and was declared hostile.
PW-13 [ENTITY] deposed that he had taken the photographs of the recovered dead body on 09.07.[SECTION]2.
The other witnesses had deposed with regard to the investigation conducted in the case.
Thus, in the present case, the only circumstance brought on record by the prosecution is to the effect that an unidentified dead body was recovered from a Well and it was later identified by brother of the deceased [ENTITY]. So far as appellants are concerned, prosecution has failed to bring on record any motive available with them to have committed the murder of the deceased. Since, present case rests on circumstantial evidence, motive gains significance.
Prosecution has also failed to bring on record any circumstance to the effect that the deceased was last seen in the company of the appellants before the commission of crime. Cause of death of the deceased has also not established by the prosecution. Rather, PW-9 Dr. [ENTITY] has stated that there was no external injury on the person of the deceased.
(10 of 11) [CRLA-1397/[SECTION]6] PW-18 [ENTITY], Investigating Officer in his cross- examination has admitted that the deceased was a convict in a murder case and was undergoing his sentence. Then, deceased was granted benefit of parole and thereafter, he did not surrender before the Jail Authorities.
As per Exhibit-P-22, [ENTITY] (deceased) after jumping parole, was moving about under the name of [ENTITY], his deceased brother (who had committed suicide).
Thus, the prosecution had failed to complete the chain of circumstances establishing the guilt of the appellants. The factum of recovery of a quilt and shoes of the deceased from appellant [ENTITY] and driving licence of the deceased from appellant [ENTITY] in itself would not be sufficient to uphold the conviction of the appellants, especially, when the prosecution has failed to establish that the appellants had any motive to commit the murder of the deceased. Furthermore, the cause of death of the deceased has also not established on record.
It is a settled proposition of law that prosecution is required to prove its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. An accused is presumed to be innocent till prove guilty. However, in the present case, prosecution has failed to bring home the guilt of the accused. The prosecution has failed to complete the chain of circumstances leading to the guilt of the appellants and negate the possibility of their innocence. Hence, appellants are liable to be acquitted by giving them benefit of doubt.
Accordingly, appeals are allowed. Appellants are acquitted of the charges framed against them. Impugned judgment/order of (11 of 11) [CRLA-1397/[SECTION]6] the trial court dated 17.09.[SECTION]6 are set aside. Appellants, who are in jail, be set at liberty forthwith, if not required in any other case.
In view of the provisions of [SECTION] [ACT], appellants are directed to furnish a personal bond in the sum of Rs.25,000/- each, 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 appellants, on receipt of notice thereof, shall appear before the Supreme Court.
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