1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER 1. D.B. CRIMINAL APPEAL NO.1000/2003. Jai Prakash @ Jelly Vs. State of Rajasthan 2. DB CRIMINAL APPEAL NO.728/2008. State of Rajasthan Vs. Mahendra & Others. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 9th March, 2009. PRESENT HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE S.P. PATHAK Mr. A.K. Gupta for the appellant Jai Prakash. Mr. Rajendra Yadav PP for the State. BY THE COURT: (PER HON'BLE PATHAK, J) D.B. Criminal Appeal No.1000/2003 has been filed by accused Jai Prakash against his conviction recorded under section 302 IPC by the Additional Sessions Judge (Fast Track) Hindaun city in Sessions Case No.11/2002 vide its judgment and order dated 7th July, 2003. The accused Jai Prakash has been sentenced for imprisonment for life under section 302 IPC with a fine of Rs.1,000/-, in default thereof to further undergo three months rigorous imprisonment. D.B. Criminal Appeal No.728/2008 has been filed by the State challenging the order of acquittal recorded by the trial court against the respondents. Since, both the above appeals arise out of the same judgment and order dated 7th July, 2003, they have been heard and decided together. 2 Briefly stated, the facts necessary for the disposal of the present matter are that Mahendra Singh, one of the accused in the case, lodged a written report Ex.P-6 in the police station Todabhim, Karauli on 5.6.1998 with the averments that in the morning at about 9.00 a.m. while he along with Jai Prakash, Devi Singh and Munshi Singh Rajput were sitting in the court-yard of the house and were discussing about the matter relating to a land Mamta (deceased) came out from the kitchen. At that time Munshi Singh shouted that “Jai Prakash, Laxmi Narain son of Shridhar is firing'. Immediately his bhabhi Mamta fell down, blood started oozing out from her head and within 5-6 minutes she died. It is further stated that all of them sitting in the court-yard proceeded towards haveli and saw that Laxmi Narain son of Shridhar came down from haveli and ran away towards mountain side with a gun, therefore, all of them left the idea of chasing him. On the above report, FIR No.160/1998 (Ex.P-5) under section 302 IPC was registered at police station and investigation commenced. During the course of investigation, necessary memos were prepared. An autopsy on the dead-body was done. Post-mortem report is Ex.P- 3. In the opinion of PW-12 Dr. Siyaram Meena, the cause of death was injury to brain, hemorrhage and shock due to gun shot injury. Leaving accused Jai Prakash, other accused, namely; Devi Singh, Har Sahai, Munshi Singh and Mahendra were arrested and charge-sheet was filed in the court. Subsequently, accused Jai Prakash was arrested vide memo Ex.P-4 on 18.9.2001 and 3 supplementary charge-sheet was filed against accused Jai Prakash in the court. Ultimately, the matter came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun city district Karauli. Charge against the accused Jai Prakash was framed under section 302 IPC and alternatively under section 304B IPC. Against all other accused persons, namely; Devi Singh, Har Sahai, Munshi Singh and Mahendra charge under section 194, 201 and 203 IPC was framed. Accused denied the charge and claimed trial. In order to prove its case, the prosecution examined as many as 16 witnesses. After close of the prosecution evidence, accused Jai Prakash in his statement under section 313 Cr.P.C. stated that he was employed at Bombay. On the day of incident his wife in curiosity took the katta in her hand and accidentally it fired as a result of which she died. All other accused denied their involvement in the case. In defence evidence Tulsiram and Bhairon Singh have been examined as DW-1 and DW-2. The learned trial court after hearing final submissions, convicted the accused appellant Jai Prakash under section 302 IPC and sentenced as indicated here-in-above. Other accused were acquitted of the charges framed against them under section 194, 201 and 203 IPC. Hence, the present appeals one by accused Jai Prakash and another by State have been filed. I have heard learned counsel for the accused-appellant as well as learned public prosecutor and carefully perused the material available on record. 4 In the present matter, the points for consideration are; (1) as to whether the prosecution has been able to prove its case against accused Jai Prakash under section 302 IPC and rightly convicted the accused; (2) whether the evidence brought on record is sufficient to draw a conclusion that it was the accused only who committed murder of his wife; (3) whether rest of the accused, namely Mahendra, Harsahai, Devi Singh and Munshi Singh have been rightly acquitted; and (4) whether the judgment of the trial court is liable to be upheld or set aside. POINTS NO.(1) AND (2): Since, points no. (1) and (2) are inter-related to each other, as such they are being decided together. In this case PW-1 Ram Narain, PW-2 is Kamla and PW-3 is Devki Nandan. They are father, mother and brother of deceased Mamta. All of them have stated that deceased Mamta was married with accused in the year 1996 and after some time of the marriage, accused started harassing the deceased and made a demand for a motor-cycle which was not fulfilled and on the day of incident i.e. 5.6.1998 one Mahendra who is in their relation informed them that Mamta has expired on account of a gun shot injury. Hearing the shocking news PW-1 Ram Narain along with 10-15 persons reached in village Badleta where deceased was living with her husband and other family members. The witnesses have stated that there was injury on the head of the deceased as 5 she was found lying dead on a mattress in a poly. There was blood all over her body. Jai Prakash (accused) was not seen there. When it was asked from his father as to where Jai Prakash was, it was told that he fainted and thereafter he was taken to the hospital but this information was not correct. The persons those who gathered there were talking and whispering that accused Jai Prakash murdered his wife by a katta. A lengthy cross- examination has been done from the witness. It is suffice to say that the testimony of the witnesses in relation to their having seen the dead-body in the in-laws house and injury was found on the head stands fully established. It also appears that Jai Prakash was not there. As regards demand of motor cycle is concerned, there does not appear evidence that soon before the death, demand was made. Other witnesses are PW-4 Manohari, PW-5 Nanagram, PW-6 Babulal, PW-7 Babu and PW-8 Rajendra Prasad. PW-4 Manohari, PW-5 Nanagram, PW-6 Babulal and PW-7 Babu all of them have stated that they heard the noise of gun shot which came from the house of accused Jai Prakash but they cannot say who was responsible for the murder of deceased Mamta. PW-7 Babu has stated only that the ladies were weeping there and they were telling that Jai Prakash did very bad by killing his wife. PW-8 Rajendra Prasad is an important witness of the prosecution. He lives near the house of Jai Prakash and he has 6 stated that in the morning at about 9.00 a.m. on the day of incident while he was taking tea outside his house sitting on a patti, he heard noise of gun shot which came from the house of accused Jai Prakash. He immediately reached at the house and peeped through a jungla (window) and saw that Jai Prakash was having a katta in his hand and his wife was lying on the bad and blood was oozing out from her head. He has stated that many persons assembled there. In the cross-examination he has stated that not only for the first time he disclosed this fact on 5.8.1998 but prior to that also he stated about the fact to the police. PW-9 is Deen Dayal and PW-10 Ghanshyam both are relatives of PW-1 Ram Narain. Both these witnesses have stated that they reached at the in-laws house in village Badleta. The dead-body of the deceased was seen by them on a mattress in the poly. People who gathered there were telling that accused Jai Prakash committed murder of his wife. PW-12 is Dr. Siyaram Meena. He conducted autopsy on the dead-body of the deceased at the request of the SHO of the police station. A medical board was constituted and post-autopsy was done. Following injuries were found: “External injuries: Wound of entry 1x3/4 cm, round shape by fire arm, below eye lid, direction of the wound was obliquely upward. Colour of wound was blackish. Exit wound was there. Injury was on occipital bone. Brain matter was destructed and came 7 out. In the opinion of the doctor the cause of death was injury on brain, hemorrhage and shock due to gun shot injury. It appears that PW-12 Dr. Siyaram Meena in the cross- examination has stated that he was not sure as to whether injury could be suicidal or not but it is possible that it may be accidental. In re-examination, he could not stand on the statement and stated that if somebody fires at the eye then injury found on the person could be homicidal. PW-13 Daulatram, PW-14 Ram Prakash and PW-15 Satyendra Singh Rajawat respectively are the witnesses who have investigated the matter. PW-13 Daulatram has stated that in view of the investigation made by him he found that Mamta's death was not accidental. He has also stated that the statement of witnesses were recorded by him. PW-14 Ram Prakash has proved the arrest of Jai Prakash. He has recovered katta at the instance of accused. PW-15 Satyendra Singh Rajawat has also conducted part investigation in this case. He has stated that he found accused Jai Prakash responsible for the murder of deceased Mamta and others were found responsible for committing offence under sections 193, 212 and 120-B IPC. It has been the contention of the learned counsel that in this case chain of circumstances relied upon by the prosecution 8 has not been completed, therefore, accused cannot be held guilty. It has also been contended that from the evidence it would appear that the death was accidental and in this connection defence evidence also confirms the fact that the accused was not responsible for the death of deceased. On the other hand, learned public prosecutor has contended that one of the accused Mahendra tried in this case who is the brother of accused Jai Prakash, lodged FIR Ex.P-6 wherein it was stated that in the court-yard when the matter was being discussed about some land between Jai Prakash, Devi Singh and Munshi Singh Rajput, at that time Munshi Singh shouted that “Jai Prakash, Laxmi Narain son of Shridhar is firing” and immediately his bhabhi Mamta fell down. According to the learned public prosecutor presence of Jai Prakash stands established in view of the first information report at the place of occurrence, therefore, the contention of the learned counsel for the appellant that Jai Prakash was not present is not liable to be accepted. It is also contended that there are different versions of the accused regarding the happening of the incident. At one place accused says that he was not present at the spot whereas in the FIR it appears that the accused was available in the house. It has also been contended that in the statement recorded under section 313 Cr.P.C., the accused has taken different stand. It has also been submitted that all other accused were arrested but accused Jai Prakash absconded and he could be arrested after more than 9 three years. According to the learned public prosecutor, had there been no involvement of accused Jai Prakash then he would not have absconded. In the last, it is submitted that had there been story of accidental death of deceased correct then at the first instance when FIR was lodged by one of the brother of accused then this fact would have been mentioned that death was accidental and accused Jai Prakash was not there which is absent and some Laxmi Narain son of Shridhar has been made accused. According to the learned public prosecutor this all shows that accused was responsible for committing murder. We have carefully considered the submissions made before us. It appears from the perusal of the evidence that the cause of death was head injury on account of shot fired by a fire arm. Doctor has stated that injury was sufficient to cause death in the ordinary course of nature. Even the post-mortem report confirms this aspect of the matter. The statement of the doctor as a whole if seen, it cannot be said that the death was a natural one, therefore, safely a conclusion can be arrived that the death was homicidal. It is now to be seen that Ex.P-5, written report has been submitted by one of the brother of the accused who is co- accused in this case. There is a mention that 4-5 other persons were sitting in the curt-yard, at that time deceased Mamta came out from kitchen and gun was fired by one Laxmi Narain son of 10 Shridhar. This fact was not established proved even, primafacie, during the course of investigation, therefore, it can safely be presumed that the accused did not state correct facts in the written report. Be that as it may, this fact also does not find place in Ex.P- 6 that deceased Mamta in curiosity took the fire arm in her hand and it fired accidentally, therefore, the story that it is an accidental case is completely ruled out. It further appears that when information was received by the in-laws, they came at the spot, they found the dead-body lying in the poly on a mattress, all over the dead-body of the deceased there was blood and injury was found on the head. This fact finds corroboration from the statement of PW-12 Dr. Siyaram Meena. The accused was not seen at the place of occurrence and the witnesses have stated that he was only seen on the third day. The witnesses have also stated that there were talks going on that the accused Jai Prakash was responsible for the murder of deceased Mamta. The conduct of the accused in this case shows that just after the incident accused made escape from the place of incident and could not be arrested for more than three years. The accused has taken different stands, like he was away, not present at the place of incident and the death of the deceased was accidental death and the learned counsel for the accused appellant Jai Prakash in this regard drew our attention to different portions of the statement of witnesses to show that the in- laws were informed that Smt. Mamta' death was an accidental 11 death. It is an admitted position that within two years of marriage, the deceased had died and as per the first version which came out from the accused side was that one Laxmi Narain son of Shridhar has fired from a gun. It appears that accused cooked up a story to involve an innocent person in the present case but during the course of investigation the things found otherwise and accused was found responsible for committing the murder of his wife. It is correct that it is the duty of the prosecution to prove its case beyond reasonable doubt but at the same time in such matters where wife living with the husband dies in suspicious circumstances and the death is not natural then it is always the duty of the husband to explain how and in what manner the death took place. In view of the provisions of Section 106 of the Evidence Act, the accused Jai Prakash has not discharged the burden which was upon him. In the instant case, instead of explaining the circumstances in which deceased died, the accused Jai Prakash did was that he made escape from the place of occurrence and after consultation one of his brother accused Mahendra submitted a written report wherein an innocent person Laxmi Narain was made accused. There does not appear any plausible explanation of the accused. In the statement recorded under section 313 Cr.P.C., accused denied his presence but the circumstances of the case speaks that accused was present at the place of incident and his conduct soon after the incident was such which raises a presumption that death as stated by the accused 12 was accidental is not the correct version. The learned counsel for the accused appellant has placed reliance on various decisions of Hon'ble Supreme Court and the High Courts in support of his contention that unless in a case based on circumstantial evidence chain of circumstances is complete, accused cannot be convicted. There cannot be two opinion about the law propounded by the Supreme Court. Some of the decisions referred by the learned counsel are: In the case of Bhagat Ram Vs. State of Punjab- AIR 1954 SC 621, it was observed by the Hon'ble Apex Court that the cases in which conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. In the case of C. Chenga Reddy and ors. Vs. State of A.P.- (1996)10 SCC 193, the Hon'ble Apex Court has observed as under: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” 13 In the case of Padala Veera Reddy Vs. State of A.P. and ors.- AIR 1990 SC 79, the Hon'ble Apex Court has laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following test: (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. It is also one of the settled principles of law that the witness may tell lies but not circumstances. The court must adopt cautious approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana Vs. Ved Prakash, AIR 1994 SC 468. The Supreme Court in the case of Ramkumar Madhusudan Pathak Vs. State of Gujarat, (1998)7 SCC 702 has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused. 14 In another case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court has laid down five principles to base conviction on circumstantial evidence: “(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) 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.” The Hon'ble Apex Court in the case of Jaipal Vs. State of Haryana, (2003)1 SCC 169 has held that merely because the accused could have had a motive for causing death of the deceased, it would not by itself be enough to sustain the finding of guilt against him. It is not necessary to refer all the authorities cited by the learned counsel for the appellant any further now for the simple reason that the law is almost settled in relation to the matter 15 based upon circumstantial evidence. It is correct that in the present case there does not appear any eye witness because a married young lady has died in the in-laws house. The husband's brother has submitted a written report to the police that some other person Laxmi Narain was responsible for the murder of deceased though after investigation this fact was not found proved and it was found that accused Jai Prakash was responsible for committing murder of his wife. Another circumstance appears in this case is that soon after the incident accused absconded and he was arrested after more than three years and a katta was recovered at his instance. The stand of the accused changed time and again in relation to the incident. No proper explanation has been offered in relation to suspicious death took place on account of fire arm injury at the house of accused Jai Prakash who is husband of deceased Mamta. It further appears that the relations with the deceased were not cordial of the family members of in-laws and deceased has died in a very short span of time. To believe the explanation that deceased died accidentally while she was handling a fire arm is not believable in view of written report Ex.P-6 submitted by the brother of the accused before the police. Another circumstance which is against the accused is that in-laws did not intimate about the death of the deceased but it was one Mahendra, a near relative of the deceased's father Ram Narain, who intimated about the incident and thereafter Ram Narain and others reached at the house of deceased in the village. The last 16 circumstance is that the deceased's wife was living with the accused and accused being responsible to explain about the suspicious death of the decesed and in the stated circumstances discussed here-in-above clearly shows that it was the accused who committed the offence alleged against him. The defence evidence led in this case of DW-1 Tulsi Ram and DW-2 Bhairon Singh is not reliable wherein they have stated that they heard that while Mamta was keeping the gun and it fired as a result of which she died. The witnesses have not stated to anybody about the above incident. DW-1 Tulsiram has stated in his cross-examination that accused Jai Prakash is his nephew. DW-2 Bhairon Singh has though stated that the deceased was living with her husband peacefully and he heard in the village when he went to Har Sahai that accidentally the incident took place by the fire arm. These two witnesses are basically relatives of the deceased. As regards act of the accused is concerned, their evidence is not inspiring any confidence. In view of the above discussions, answer to the points no.1 and 2 is that accused Jai Prakash is responsible for the murder of deceased Mamta and the trial court has committed no illegality in convicting the accused under section 302 IPC and further