1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Rajesh Panwar Vs. State of Rajasthan DB CRIMINAL APPEAL NO.183/2002. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 4th May, 2009. PRESENT HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE S.P. PATHAK REPORTABLE Mr. A.K. Gupta with Mr. Vijayant Nirwan and Ms. Meeta Pareek for the appellant. Mr. Sanjeev Menta, Mr. J.R. Bijarania and Mrs. Alka Bhatnagar PP for the State. BY THE COURT: (PER HON'BLE PATHAK, J) This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 15th January, 2002 passed by the Additional Sessions Judge (Fast Track) No.2, Jaipur city, Jaipur in Sessions Case No. 94/1998, 1/2001 by which the accused-appellant has been convicted and sentenced for the offence under sections 302 IPC for imprisonment of life and a fine of Rs.1000/-, in default of payment of fine to further undergo three months rigorous imprisonment and under section 201 I.P.C. for three years rigorous imprisonment and a fine of Rs.500/-; in default of payment of fine to further undergo rigorous imprisonment for two months. Briefly stated the facts of the case are that on 8th July, 1997, B.D. Saxena (PW-2) submitted a written report before the S.H.O., Police Station Manak Chowk, Jaipur wherein it was, inter- 2 alia, stated that on reading a news item flashed in daily news paper 'Dainik Bhaskar' dated 10.6.1997 and 20.6.1997 in relation to arrest of accused-appellant Dr. Rajesh Panwar along with one constable as he was found involved in preparing forged certificates in relation to motor vehicles and by reading the said news, the complainant could know the reality of the accused. It was also stated that in the end of March, 1991, the accused sent Ex.P9 envelope containing letter Ex.P7 along with Ex.P11 a photograph to his younger son at Bikaner informing him that he got married with his daughter Meenakshi in Arya Samaj. Thereafter, accused visited the house of the complainant on 7th April, 1991 and took his daughter Meenakshi with him. On insisting to hand over the documents in proof of marriage or to get the marriage registered, the accused did not pay any heed to that. In May, 1991 accused gave a marriage party in his house B-45, Shiv Marg, Nehru Nagar, Jaipur which was attended by his younger son P.W.11 Rajendra and his wife along with their children and on that occasion, a dinner set was presented as gift. Subsequently on 14.6.1991, one texla T.V. was also given to the accused at his house. On 23rd May, 1991, the accused along with one friend in drunken state came to the house of the complainant and started knocking the door and when the door was not opened, they made hue and cry as a result of which P.W.7 Ghanshyam a neighbour came there and told the accused and his friend not to create a 3 scene and maintain peace but the accused did not mend his behaviour and ultimately police came from Manak Chowk police station and took the accused and his friend to the police station. It was also stated that on 24th December, 1991, his daughter was got admitted in Janana Hospital, Jaipur where she delivered a male-child on 27.12.1991. In this regard accused intimated on 26.12.1991 to the complainant and thereafter the wife of the complainant P.W.1 Smt.Sarbati Devi took care of Meenakshi, the daughter of the complainant in the hospital. It was also stated that in February and April 1992, the accused along with his daughter came to his house and asked about the savings of his daughter Meenakshi in the FDRs and shares etc. which were of the value of Rs.60,000-65,000. On demand, the same were handed over to the accused. It was also stated that his daughter was having sufficient gold ornaments with her and was also operating various saving accounts in different banks. The accused after September, 1992 neither brought the daughter of the complainant to his house nor she was seen thereafter. It was also stated that on making inquiry from the accused and his family members, they misguided the complainant about the whereabouts of his daughter Meenakshi and did not even allow the complainant's son to enter the house. It was also stated that in connection with the house-warming ceremony which was to take place on 10th June, 1995, his younger son P.W.11 4 Rajendra visited the house of the accused on 9th June, 1995 for inviting him to attend the function but his son P.W.11 Rajendra was not permitted to enter the premises. His daughter was not seen since last more than five years and on account of exposure of reality of Dr. Rajesh Panwar came to his knowledge of his criminal antecedents and conduct, there are all probabilities that he might have either murdered his daughter or left her to some un- known place. It was also stated that it also came to the knowledge of the complainant that Meenakshi's son approx. of 5-1/2 years was living with his grand-parents, therefore, investigation be made to find out the reality. On the above report, FIR No.369/1997 was registered at the police station and investigation commenced. The investigating officer PW-29 Shanker Lal Ojha made investigation in the matter and arrested the accused vide arrest memo Ex.P48 on 11.8.97 and on the very same day accused made a disclosure statement while he was in the police custody to the effect that on 20.9.1992 he murdered his wife Meenakshi and the dead-body was inserted in a bag, the mouth of which was tightened with the help of a rope and thereafter the body was put beneath the earth with the help of the rope in a soak pit (where the dirty water of the house is collected and is normally made infront of the house in absence of sewerage line). In pursuance of the above information received in Ex.P-49, the accused took the investigating officer to 5 his house No.B-45, Shiv Path, Nehru Nagar, Jaipur and in the presence of PW-6 Jagdish, PW-22 Mohan Lal and others and the pit was dug on pointing out the place by the accused up to the level of 18 to 20 ft and thereafter a skeleton of a woman, black hair, tooths, pieces of a torn bag and a plastic rope were found and subsequently sent to the FSL, Jaipur and a report thereof was obtained which gave negative result for metallic poison. A site map Ex.P-4 was drawn of the place from where skeleton was recovered. Memo Ex.P-2 of Panchayat-nama and a memo of recovery of skeleton Ex.P-3 was also drawn. After recovery of skeleton (bones), the same were presented before the medical board for post-mortem and at that time medical board opined that there ought to be some more bones, therefore, again the pit was re-dug on 17.8.97 in presence of P.W.14 Upendra Mohan and Atul Sharma and some more bones were recovered from the pit and Ex.P-5 memo was drawn. In the the opinion of P.W.24 Dr.M.R.Goyal the bones were of a female and time of death approximately was more than a year. The accused further on 14.8.97 gave an information which was recorded in Ex.P50 in the police custody to the effect that he could get recovered the clothes of the deceased and other articles which were kept by him in a box and the box was taken by him from his house B-45, Shiv Marg, Nehru Nagar, Jaipur to the house No. D-61, Shastri Nagar, Hasanpura, Jaipur which was of his elder brother D.W.1 Roop Kishore and the box was lying in his house in the room of D.W.1 6 Roop Kishore and in pursuance of the information recoveries were made in presence of P.W.13 Nirmal Kumar and Noor Mohd. on 14.8.97 and memo Ex.P-12 was prepared. Again accused made disclosure statement 15.8.97 Ex.P51 to the police that he got prepared the death certificate of his wife Meenakshi and was also having that certificate, photos, stamp paper etc. which were kept by him with his brother D.W.1 Roop Kishore and he could get recovered the above articles. After recording the above information Ex.P51, Hemant Kumar son of Roop Kishore along with his grand father Chandra Mohan came to the Police Station on 15.8.97 and submitted death certificate of deceased Meenakshi issued by Sub Registrar (Birth & Death) dated 23.7.1997 wherein the date of death of Meenakshi W/o Rajesh was mentioned as 23.9.1992 resident of house No.B-45, Shiv Marg, Nehru Nagar, Jaipur(File No.3265/19637/97 through Rajesh). Other documents such as, a non-judicial stamp of Rs.5/- bearing No.536 dated 6.2.92 purchased by Meenaxi wife of Rajesh from Banshidhar Stamp Vendor, Jalabi Chowk, Jaipur on which it was written by the deceased that whereever she was going, she was going at her own desire and signed by Mrs.Panwar with date 20.9.92. A pass- book of Indian Overseas Bank and photos were also submitted and a recovery memo Ex.P16 was drawn in presence of P.W.16 Madan Lal. The accused during investigation again made a disclosure statement on 26.8.1997 to the effect that deceased's gold chain and tops were taken by him after murdering Meenakshi 7 and the same were sold to Laxman Gurjar. The information was recorded in Ex.P-52 and recoveries were made vide Ex.P-15. Record from the Registrar, Birth and Death was obtained. In the record, affidavit of accused Ex.P-26, application for obtaining death certificate submitted by accused making report therein about the death of Meenakshi in Nagar Nigam, Jaipur and death certificate Ex.P55 were seized by police. Photographs of the spot were taken which have been proved by Madholal PW-21, photographer. Photographs are Ex.P-22 to P-35 and negatives thereof are Ex.P-36 to P-45. After completion of investigation, charge-sheet was filed against the accused and ultimately the matter came up for trail before the Additional District Judge (Fast Track) No.2, Jaipur city, Jaipur. The charge was framed against the accused under section302 and 201 IPC on 9.11.1998 to which the accused denied and claimed trial. In order to bring home the charge levelled against the accused, the prosecution examined as many as 29 witnesses and relied upon their oral testimony. They are as under: PW-1 is Smt. Sharbati Devi, mother of the deceased. PW-2 is B.D. Saxena, father of the deceased. PW-3 is Smt. Madhu Saxena, daughter-in-law of PW-2 B.D. Saxena. PW-4 Manna Lal is a labour who dug the soak-pit from where skeleton was recovered. PW-5 is Ashok Kumar, brother of deceased. 8 PW-8 is Hemraj who is son-in-law of PW-2 B.D. Saxena. PW-6 is Jagdish, witness of Exs. P-2, P-3 and P-4 before whom the pit was dug at the instance of accused. PW-7 is Ghanshyam. PW-9 is Mangilal. PW-10 is Rajendra Jain who is a shop-keeper near the house of PW-2 B.D. Saxena. PW-11 is Rajendra Kumar, brother of deceased Meenakshi. PW-12 Vimal Sharma is a witness of Ex.P-13 the site plan of B-45 Nehru Nagar, Jaipur. . PW-13 is Nirmal Kumar Sharma. He is in relation to the recovery of box from the house of accused and he, in this regard, has proved memos Ex.P-12 and P-13. PW-14 is Upendra Mohan Sharma. He is the witness in relation to the bones of skeleton recovered of the deceased from a pit in front of the house of the accused. He has proved Ex.P-5 in this regard. PW-15 is Babu Lal. He has proved that in his presence from the shop of Laxman gold chain and tops were seized by the police. PW-16 is Madan Lal. He has proved memo Ex.P-16 whereby the police seized the articles which were brought by Hemant. 9 PW-17 Devi Sahai is a witness of memo Ex.P-17. In his presence from the mortuary of SMS Hospital, bones were collected and were kept in a box and sealed by the police. PW-18 is Alok Kumar Chaturvedi, the Manager of Indian Overseas Bank, branch Bani Park, Jaipur. He has stated about the bank accounts of deceased in the bank and also stated that the deceased was the wife of the accused. PW-19 Dr. Prem Bhargava is a pathologist and was also member of the board constituted to examine the bones of deceased at the time of post-mortem. He has proved the post- mortem reports Ex.P-24 and Ex.P-25. PW-20 is Nathmal Sharma, advocate has stated that the accused was identified by him in his affidavit Ex.P26 on 27.7.97. PW-21 is Madholal, photographer in the police department. He took photographs of the bones and also the place from where skeleton was recovered. He has proved photographs Ex.P-27 to P-35 and negatives of the photographs Ex.P-36 to P- 45. PW-22 is Mohan Lal. He is also a photographer and was present at the time when photographs were taken of plot No.B-45, Shiv Marg, Nehru Nagar, Jaipur. PW-23 is Udai Bhan Singh, head constable. He has handed over the sealed packets for the purpose of investigation to Ashok Kumar, Sub-inspector. The sealed packets containing 10 bones were taken by Ashok Kumar. At that time he was present and after examination of the bones, the bones were handed over to Ashok Kumar which were again sealed. PW-24 is Dr. M.R. Goyal, Professor and Head of Forensic and Medicine Department and conducted post-mortem of the deceased and prepared post-mortem reports Ex.P-24 and P- 25. In his opinion, the skeleton was of a female. PW-25 is Devendra Singh. At the relevant time he was Assistant Collector and Executive Magistrate before whom accused filed his affidavit Ex.P26, which bears his signatures. PW-26 is Ashok Kumar who took the bones with him for getting them examined from the medical board and after examination the same were handed over to him which he handed over in the police station. PW-27 is J.P.Jat. At the relevant time on 23.7.1997, he was Registrar, Birth and Death and on the basis of Ex.P-26, the affidavit by the accused, passed an order for issuance of registration certificate. PW-28 is Laxman from whose shop gold chain and tops of deceased Meenakshi were recovered by the police. He has turned hostile. PW-29 is Shanker Lal Ojha who conducted investigation in the matter. After close of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. on 20.7.2001. In 11 his statement, the accused stated that the deceased was not his wife as no marriage took place of the accused with the deceased. He has also stated that he does not know PW-2 Bhagwan Das and Meenakshi, the deceased and has been falsely implicated in the case. He has also stated that house no. B-45 Shiv Marg,Nehru Nagar, Jaipur does not belong to him. In defence evidence accused got examined DW-1 Roop Kishore Panwar who is the brother of the accused. After hearing final submissions, learned trial court convicted and sentenced the accused-appellant as indicated here- in-above. Hence, the present appeal has been filed. We have heard the learned counsel for the accused appellant as well as the learned Public Prosecutor for the State and carefully perused the impugned judgment and the material available on record of the file. The present case is based on circumstantial evidence. It is not necessary for us to discuss in detail the law relating to circumstantial evidence but suffice it to say that prosecution must prove the chain of circumstances having a definite tendency pointing towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused. 12 The learned trial court recorded its finding that the marriage was solemnised of the deceased with the accused appellant according to Arya Samaj rites in year 1991 and out of their wed-lock one child was born in the year 1991. The trial court further recorded its finding that accused after committing murder some time after September, 1992of his wife Smt.Meenakshi buried the dead body in a soak-pit, which was in front of his house bearing No.B-45, Shiv Path, Nehru Nagar, Jaipur and on the information and at the instance of the accused the skelton of the deceased was recovered and on post-mortem, the bones were found to be of a female. The trial court also recorded its finding that photographs recovered at the instance of accused and seized by the police during the course of investigation also confirmed the fact of the marriage. It has also been the finding recorded by the trial court that the accused after murdering his wife and thereafter putting the same in the soak-pit approached the authorities concerned for issuance of death certificate on the basis of his affidavit Ex.P26 which was presented before Executive Magistrate and death certificate Ex.P55 was obtained, wherein it was stated that deceased was his wife and died on 23.9.92. The learned trial court considering the circumstances in the case, the accused being husband and the deceased being his wife and recoveries made in the case of skeleton(bones) of the deceased and other documents, articles coupled with the conduct of the accused, is sufficient to hold guilty the accused and convicted the accused. 13 In order to appreciate the evidence in relation to the circumstances relied upon by the trial court, we deem it proper to discuss the circumstances available in the case. The following circumstances requires consideration in the present case. (1) Whether deceased Meenakshi was wife of accused appellant and they got married according to Arya Samaj rites and out of their wed-lock a child was born in December, 1991? (2) Whether at the instance and on the information of the accused, the decomposed bones of deceased Meenakshi were recovered from a pit, which was outside of his house B-45, Shiv Path, Nehru Nagar, Jaipur? (3) Whether soon after the death of deceased Meenakshi, from the saving bank account the accused withdrew balance amount? (4) The conduct of the accused of not informing the parents of the deceased about whereabouts of the deceased after September, 1992. Now, we propose to examine the above circumstances to find out as to whether the chain of circumstances in the present case is conclusive in nature or not and what is the cumulative effect of the circumstances in this case. 14 CIRCUMSTANCE NO.(1):- P.W.1 Smt.Sharbati the mother of the deceased, P.W.2 B.D.Saxena the father of the deceased, P.W.3 Smt.Madhu Saxena the daughter-in-law of P.W.1 Smt.Sharbati and P.W.2 B.D.Saxena, P.W.5 Ashok Kumar Saxena, P.W.10 Rajendra Sain and P.W.11 Rajendra Kumar Saxena have deposed in their statements before the court about the deceased being wife of accused appellant. P.W.1 Smt.Sharbati has stated that deceased at her own desire got married with the accused appellant and after marriage she used to visit along with her husband their house. P.W.2 Bhagwan Dayal Saxena the father of the deceased has also stated that in the year 1991 accused intimated his younger son P.W.11 Rajendra Kumar about his marriage with deceased Meenakshi and in that regard sent an envelope Ex.P14 containing a letter therein Ex.P9 to the effect that in Arya Samaj, marriage was solemnised of deceased with the appellant. He also stated that in April, 1991, accused invited his son P.W.11 Rajendra Kumar in the marriage party at his house, which was attended by his son P.W.11 Rajendra Kumar with his wife and their children at that time a dinner-set was presented as a gift to the accused appellant. P.W.1 Smt.Sharbati Devi and P.W.2 B.D.Saxena also stated that their daughter was admitted in Janana Hospital, Jaipur and in that regard accused intimated P.W.2 B.D.Saxena that his daughter was admitted in Janana Hospital, Jaipur in December, 1991 and on receiving the information, he asked his wife P.W.1 15 Smt.Sharbati to take care of the daughter at the time of delivery and accordingly his wife attended the deceased in the Janana Hospital, where deceased delivered a male child. P.W.5 Ashok Kumar Saxena the brother of the deceased has stated that his younger sister Meenakshi got married with accused Rajesh. He has also stated accused intimated his brother P.W.11 Rajendra Kumar by writing a letter that accused got married with Meenakshi in Arya Samaj in the year 1991. He has stated that after marriage in April, 1991, deceased Meenakshi was taken by the accused with him. P.W.10 Rajendra Sain has also stated that Meenakshi was married with the accused and he had seen the accused along with the deceased coming to the house of B.D.Saxena the father of the deceased. P.W.11 Rajendra Kumar Saxena the brother of the deceased has stated that in the year 1990, he was living in Bikaner and deceased Meenakshi was residing at Jaipur with his father P.W.2 B.D.Saxena. In the year 1991, a letter Ex.P9 was received by him, which was sent in an envelope Ex.P10 by the accused. In the letter, it was stated that accused and Meenakshi got married in Arya Samaj. Thus, as far as the oral testimony is concerned, there remains no doubt about the testimony of the witnesses that they were informed by the accused appellant in relation to the marriage of deceased Meenakshi with the accused appellant. The letter Ex.P9 of 1991 clearly indicates about the factum of the marriage of the deceased with the accused 16 appellant. Ex.P11 is a photograph of accused with deceased Meenakshi. Ex.P26 is the affidavit of accused Rajesh, which he has presented before P.W.25 Devendra Singh, Executive Magistrate. In the affidavit Ex.P26, the accused stated as under:- “I Rajesh S/o Chandramohan, resident of B-45, Nehru Nagar, Jaipur on oath states that my wife Smt.Meenakshi W/o Rajesh was residing on above address and has expired on 23.9.1992 at the above address. Her death has not been registered at any other place in the Rajasthan. No death certificate has been obtained.” P.W.25 Devendra Singh has proved the factum of submitting the affidavit by the accused before him on 22.7.97 when he was Executive Magistrate at Jaipur and has stated that an order was passed by him on the affidavit for registering the death of the deceased on depositing registeration fees. P.W.27 is J.P.Jat who at the relevant time, was Registrar (Births and Death) at Jaipur. On the basis of Ex.P26 affidavit of accused Rajesh, he passed an order for issuance of certificate on depositing the requisite fees by the accused. The death of the deceased was registered at S.No.518 in the Register. Ex.P56 is an application moved by accused Rajesh in the Sessions Court, Jaipur, which was registered as Anticipatory Bail Application No.1568/97. In this application, in the year 1997, the accused has stated his address as B-45, Shiv Path, Nehru Nagar, Jaipur. In Para No.2 of the application, it is stated that after getting married with deceased Meenakshi, accused along with deceased started living happily and out of their wed-lock, a son was born to them. In Para No.3 of 17 the application, it is stated that on 20.9.92 when he came from office, he found that his house was locked. On opening the lock, in a room, on the table a non-judicial stamp was found on which deceased wrote that she was leaving the house at her own desire and it is all her fault. In other documentary evidence, photographs in relation to the marriage ceremony solemnised are Ex.P57, Ex.P58 and Ex.P61. There are also other photographs, which have been tendered in evidence and were recovered at the instance of the accused. In defence evidence, the accused has produced D.W.1 Roop Kishore as a witness. He has stated that the accused was bachelor and Meenakshi's marriage never took place with the accused. He has stated that accused Rajesh was residing with him in his house D-61, Shanti Nagar, NBC Quarters, Jaipur and never resided at B-45, Shiv Path, Nehru Nagar, Jaipur. His testimony at its face value is not at all reliable in view of the cross examination conducted from the