Rajasthan High CourtMahesh vs State Of Rajasthan Through Pp on 12 February, 2020Bench:Sabina,Narendra Singh DhaddhaHIGH COURT OF JUDICATURE FOR RAJASTHAN\n                  BENCH AT JAIPUR\n\n                D. B. Criminal Appeal No. 1418/2016\n\nMahesh S/o Ramkishore, by caste Raigar, R/o Khawarani Ji,\nPolice Station Jamwaramgarh, District Jaipur, presently R/o 251,\nRukmani Nagar, Jaipur.\n(At present confined in Central Jail, Jaipur)\n                                                         ----Accused/Appellant\n                                   Versus\nThe State of Rajasthan, through P.P.\n                                                                  ----Respondent\n\n\nFor Appellant            :     Mr. Kapil Gupta with Mr. Amitabh\n                               Jatav, Mr. R. S. Sinsinwar, Mr.\n                               Dharmendra Kumar and Mr. Ajay\n                               Gadwal.\nFor Respondent           :     Mr. Javed Choudhary, Public\n                               Prosecutor.HON'BLE MRS. JUSTICE SABINA\n    HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA\n\n                                Judgment\n\n12/02/2020\n\n          Appellant has filed the appeal challenging his conviction\n\nand sentence ordered by the Trial Court underSection 302of\n\nIndian Penal Code, 1860 (hereinafter referred to as 'IPC') vide\n\njudgment/order dated 25.10.2016.Prosecution        story,    in     brief,     is     that   complainant\n\nDungaram lodged a report at Police Station Sanganer stating\n\ntherein that Arti @ Padma, daughter of the complainant, had got\n\nmarried to the appellant on 12.06.2011. Thereafter, Arti started\n\nresiding in her matrimonial home. No child was born to them out\n\nof the wedlock. Arti had qualified second year and was preparing\n\nfor third year as a private candidate.                 Arti had come to her(Downloaded on 19/02/2020 at 09:20:37 PM)(2 of 9)                   [CRLA-1418/2016]\n\n\n\nparental house about 18-20 days prior to the incident.                            On\n\n27.10.2013, appellant had come to take his wife with him and had\n\ntaken his wife with him at about 1.00 P.M. on 28.10.2013.\n\nComplainant had left for his office at 11.15 A.M.                    At about 2.30\n\nP.M., complainant was informed by Ramkaran, elder brother of the\n\nappellant, that Arti had been murdered near Cheelgadi Restaurant.\n\nOn   hearing   this,     complainant          became         unconscious.       After\n\nregaining   consciousness,         complainant           along     with   2-3   other\n\npersons reached the spot and found that his daughter was lying\n\ndead in a pool of blood at the spot and had suffered an injury on\n\nher neck. Complainant prayed that action be taken.On the basis of the report lodged by the complainant,\n\nformal FIR No. 1092 dated 28.10.2013 was registered at Police\n\nStation Sanganer underSection 302IPC.After    completion         of     investigation       and    necessary\n\nformalities, challan was presented against the appellant. Charge\n\nwas framed against the appellant underSection 302IPC.\n\nAppellant did not plead guilty to the charge framed against him\n\nand claimed trial.In order to prove its case during trial, prosecution\n\nexamined 20 witnesses.Appellant, when examined underSection 313of Code\n\nof Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.),\n\ndenied the allegations levelled against him and stated that he was\n\ninnocent and had been falsely involved in the case.                       He further\n\nstated that on 28.10.2013, he was taking his wife from her\n\nparental home to his village. On the way, they were waylaid by\n\nthree persons, who were travelling on a motorcycle. One of the\n\nsaid persons snatched his purse and the other two persons tried to(Downloaded on 19/02/2020 at 09:20:37 PM)(3 of 9)                   [CRLA-1418/2016]\n\n\n\nsnatch the ornaments worn by his wife. They inflicted injury with\n\nan incised weapon to his wife and as a result, she died.Learned counsel for the appellant has submitted that\n\nthe appellant has been falsely involved in this case. In-fact, it was\n\na case of no evidence.           It was settled principle of law that\n\nconviction of an accused could not be based merely due to the fact\n\nthat he was last seen with the deceased.                        Prosecution was\n\nrequired to complete the chain of circumstances leading towards\n\nthe guilt of the accused. Learned counsel has submitted that so\n\nfar as recoveries of the weapon, blood stained clothes effected\n\nfrom the appellant and the call details taken during the course of\n\ninvestigation are concerned, the Trial Court has disbelieved the\n\nsame.In support of his arguments, learned counsel has\n\nplaced reliance on the judgment of the Hon'ble Supreme Court in\n\nLakhanpal, Appellant Vs. The State of M.P., Respondent,\n\n1970 0 AIR (SC) 1620, wherein it was held as under:"4. So far as the first circumstance is concerned in\n        the facts of this particular case it is not sufficient to\n        prove conclusively that the appellant committed the\n        murder of the deceased.            According to P.W.\n        Bhagwandas, the father of the appellant the sowing\n        was stopped at 4 Oclock in the evening. In the\n        circumstances, therefore, if the appellant would have\n        attacked the deceased he being a young man of 17\n        years would have undoubtedly put up stiff resistance\n        in order to protect himself and in all probability\n        would have caused some injuries on the person of\n        the appellant also. For these reasons, therefore, the\n        mere fact that the appellant and the deceased were\n        together in the field does not lead to the irresistible\n        inference that the appellant must have murdered the\n        deceased. As regards the extra-judicial confession\n        made by the appellant before Sukhlal, we are unable\n        to believe the version given by the witness Sukhlal.\n        While being examined as a witness in the Sessions\n        Court he had clearly stated that no confession was\n        made before him. His attention was however drawn\n        to his statement made by him before the committing(Downloaded on 19/02/2020 at 09:20:37 PM)(4 of 9)                 [CRLA-1418/2016]\n\n\n         Magistrate where he had admitted that he saw the\n         appellant running and on being questioned the\n         appellant told him that he had committed a mistake\n         and had killed his brother due to a quarrel. In cross-\n         examination the witness admitted that he did not\n         narrate this story of the murder to anybody. He\n         made the disclosure for the first time when he was\n         called to the police station. The witness met a\n         number of persons on that day but he did not\n         mention the factum of the confession to anyone of\n         them. Secondly the evidence shows that he was not\n         known to the appellant and therefore we find it\n         difficult to believe that the appellant would make a\n         confession to a person who was not known to him at\n         all. For these reasons, therefore, we find it wholly\n         unsafe to accept the evidence of the extra-judicial\n         confession of the appellant to P.W. Sukhlal. Another\n         important circumstance which           negatives   the\n         prosecution case is that no motive whatsoever for\n         the appellant to kill his brother has been either\n         alleged or provideded.         Further the deceased\n         appears to have received as many as 12 incised\n         wounds on various parts of the body and this could\n         not have been done by the appellant alone unless he\n         was accompanied by other friends. We are clearly of\n         the view that the prosecution has not proved the\n         case against the appellant beyond reasonable doubt.\n         We, therefore, allow this appeal, set aside the\n         judgment of the High Court and acquit the appellant\n         of the charges framed against him. The appellant\n         may now be released forthwith."Learned counsel has next placed reliance on the\n\njudgment of the Hon'ble Supreme Court in Anant Bhujangrao\n\nKulkarni, Appellant Vs. State of Maharashtra, Respondents,\n\n1993 0 AIR (SC) 110, wherein it was held as under:"12. The only circumstances that have been found\n        established are that the deceased was last seen alive\n        in the company of the appellant on October 13, 1975\n        at about 6 p.m. and that the dead body of the\n        deceased was found in the Ladni near the residential\n        portion of the appellant in Pargaonkars wada. The\n        said two circumstances, in our opinion, cannot be\n        said to be inconsistent with the innocence of the\n        appellant and on the basis of these two\n        circumstances alone, it cannot be held that the\n        appellant was a party to the murder of the deceased.\n        The conviction of the appellant for the offence underSection 302read withSection 34, IPC cannot,\n        therefore, be upheld."(Downloaded on 19/02/2020 at 09:20:37 PM)(5 of 9)                 [CRLA-1418/2016]\n\n\n\n           Learned counsel has further placed reliance on the\n\njudgment of the Hon'ble Supreme Court in Inderjit Singh and\n\nanother, Appellants Vs. State of Punjab, Respondent, 1991\n\n0 AIR (SC) 1674, wherein it was held as under:"2. After giving our careful consideration, we are\n         unable to agree with the Courts below.             These\n         circumstances are not sufficient to establish guilt of\n         the accused. It is well settled that in a case pending\n         on circumstantial evidence, the prosecution must\n         establish all the circumstances by independent\n         evidence and the circumstances so established must\n         form a complete chain in proof of guilt of the\n         accused beyond all reasonable doubts.                The\n         circumstances so proved must also be consistent\n         only with the guilt of the accused. Among the\n         circumstances relied upon by the prosecution, in the\n         light of these principles we find that except the\n         circumstance No. 1, the other circumstances are not\n         incriminating. In number of cases it has been held\n         that the only circumstance namely that the deceased\n         was last seen in the company of the accused by itself\n         is not sufficient to establish the guilt of the accused.\n         It is no doubt true that the deceaseds death was\n         homicidal but since there is no direct witness\n         connecting any of the appellants with the crime we\n         should fall back on the circumstantial evidence and\n         we are of the view that circumstances relied upon by\n         the prosecution are hardly sufficient to establish the\n         guilt of the accused. The circumstance, i.e., the\n         absence of enmity between the accused and the\n         deceased and the witness would also show that the\n         accused also had no enmity against the deceased.\n         Therefore, this circumstance is neutral. However,\n         now coming to the recovery of the gun, the High\n         Court has acquitted him of that charge. The only\n         relevant circumstance as pointed above is that the\n         appellants and the deceased left the house together\n         in a friendly manner for bird-shooting. It is needless\n         to say that no conviction can be passed on this sole\n         circumstance. In the result; the convictions and\n         sentences awarded by the Courts below are set\n         aside. The appeal is allowed. The appellants be set\n         at liberty."Learned State counsel has opposed the appeal and has\n\nsubmitted that it is an admitted fact that the appellant was taking\n\nhis wife from her parental home to his village. The story put forth\n\nby the appellant that they had been attacked by three persons(Downloaded on 19/02/2020 at 09:20:37 PM)(6 of 9)                     [CRLA-1418/2016]\n\n\n\nwas rightly disbelieved by the Trial Court as the ornaments worn\n\nby the deceased had not been taken away by anybody. Moreover,\n\nappellant, instead of travelling on the main road, was travelling on\n\na link road. Perusal of the site plan Exhibit P-2 shows that from\n\nthe main road, the link road, where the occurrence had taken\n\nplace, was not visible on account of presence of trees and bushes.\n\nThe road taken by the appellant was not much used by the traffic\n\nas it was found that people had been answering call of nature on\n\nthe said road and there was foul smell at the spot.Present case relates to murder of Arti @ Padma. Case\n\nrests on circumstantial evidence. It is an admitted fact, as is\n\nevident from the plea taken by the appellant in his statement\n\nunderSection 313Cr.P.C., that he was taking his wife Arti on his\n\nmotorcycle from her parental home to his village.Complainant Dungaram, while appearing in the witness\n\nbox as P.W.8, has deposed as per the contents of the FIR.P.W.15   Sushil       Kumar        Sharma            deposed   that   on\n\n28.10.2013, they received an information regarding the incident.\n\nOn reaching the spot, it was found that:(1) Near the boundary wall of Sanganer Airport, dead body of Arti\n\nwas lying and near the dead body, motorcycle bearing Registration\n\nNo. RJ 14 ZS 4886 was lying.(2) There was an injury mark on the neck of the deceased.(3) The clothes of the deceased were blood stained.(4) Deceased was wearing her slipper (chappal) in her right foot\n\nand her left foot slipper (chappal) was lying nearby.(5) On the road, some broken bangles and some broken plastic\n\npieces of helmet were found.(Downloaded on 19/02/2020 at 09:20:37 PM)(7 of 9)                 [CRLA-1418/2016]\n\n\n\n(6) Two buttons with thread were seen lying at a distance of 15\n\nfeet.(7) A blue bag was found hanging on the luggage guard of the\n\nmotorcycle.(8) On the side glass of the motorcycle, one helmet was found\n\nhanging and another helmet was found near the motorcycle in a\n\ndamaged condition.(9) There were no recent scratch marks on the motorcycle.P.W.6 Dr. Ashok Kumar Mathur and P.W.18 Dr. Vinay\n\nKumar have proved Post Mortem Report of the deceased Exhibit P-13. As per Exhibit P-13, deceased had suffered following injuries:"1. Incised looking wound of size 8 x 3.5 cm x\n         muscle deep present over Rt. side neck with dry red\n         blood in Rt side submandibular region. One cm\n         below to Rt. angle of mandible placed transversely\n         oblique. On dissection the Rt. side sterno mastoid\n         muscle found cut in corresponding region. The Rt.\n         side carotid artery and Rt. side Thyrohyoid soft\n         tissues found cut with surrounding antemortem\n         Hematoma. On further dissection post laryngeal\n         Hematoma seen.(2) Linear abrasion 4.5 cm long present over Rt.\n         nexulary region with dry red blood.(3) Abraded bruise of size 1.5 x ½ cm present over\n         Rt. neck postero lateral aspect with dry red blood.\n         (4) Linear abrasion 10.5 cm long present over left\n         side neck in mid part with dry red blood.\n         (5) Linear abrasion 9.5 cm long 1 cm below to Injury\n         No. 4 on left side neck with dry red blood.\n         (6) Abrasion 2.5 x 1.5 cm present over left\n         supraclavicular region in lateral aspect.\n         (7) abraded bruise of size 3.5 x ½ cm present over\n         left supraclavicular region medial aspect with dry red\n         blood. All above injuries are ante mortem in nature.Duration fresh prior to death."Cause of death of the deceased was hemorrhagic shock\n\nbrought about as a result of ante mortem injury no. 1 and the\n\nsame was sufficient to cause death in the ordinary course of\n\nnature.(Downloaded on 19/02/2020 at 09:20:37 PM)(8 of 9)                 [CRLA-1418/2016]\n\n\n\n           Exhibit P-2 is the site plan where the dead body of the\n\ndeceased was recovered. There was an injury mark on the neck\n\nof the deceased and her clothes were blood stained. Motorcycle\n\nwas lying near the dead body and the key of the motorcycle was\n\nin the vehicle itself.   It has also been mentioned therein that it\n\nappeared that the road was not much used by the travellers as\n\nthere was smell of latrine which was lying here and there. It has\n\nalso been mentioned that the link road was not visible from the\n\nmain road as there were trees and plants in between the main\n\nroad and the link road.Thus, in the present case, the circumstances brought\n\non record by the prosecution are that the appellant had taken the\n\ndeceased with him on his motorcycle from her parental home for\n\nhis village.   However, on the way, dead body of Arti was found\n\nwith an injury on her neck. Since the deceased Arti had left with\n\nthe appellant on his motorcycle, it was for the appellant to have\n\nexplained as to how his wife had died an unnatural death.                    In\n\norder to explain the said fact, appellant had taken the plea in his\n\nstatement underSection 313Cr.P.C. that they had been attacked\n\nby three persons and they had taken away his purse and had tried\n\nto snatch the ornaments of his wife.                     While doing so, the\n\nassailants had inflicted injury to his wife. However, perusal of the\n\nphotographs Exhibit P-21 to Exhibit P-25 reveal that the deceased\n\nis wearing earrings and a mangalsutra in her neck.                 She is also\n\nwearing bangles in her both hands and is wearing silver anklets.\n\nShe is also wearing a nose pin. From the photographs it cannot be\n\ninferred that any effort had been made by the alleged assailants\n\nto remove her ornaments. Thus, the plea of the appellant that the\n\nmurder had been committed by some assailants with a view to(Downloaded on 19/02/2020 at 09:20:37 PM)(9 of 9)                 [CRLA-1418/2016]\n\n\n\n                                   take away the ornaments worn by his wife is without any force\n\n                                   and was rightly disbelieved by the Trial Court.We have gone through the judgments relied upon by\n\n                                   learned counsel for the appellant but the same fail to advance the\n\n                                   case of the appellant as they are based on different facts. In the\n\n                                   present case, the circumstances brought on record by the\n\n                                   prosecution lead to the irresistible conclusion that the murder of\n\n                                   Arti @ Padma had been committed by the appellant.                          The\n\n                                   circumstances proved on record are consistent with the guilt of the\n\n                                   accused and negate the possibility of someone else having\n\n                                   committed the crime.In the facts and circumstances of the present case,\n\n                                   learned Trial Court had, thus, rightly ordered the conviction and\n\n                                   sentence of the appellant with regard to the charge framed\n\n                                   against him.No ground for interference is made out.Dismissed.(NARENDRA SINGH DHADDHA),J                                         (SABINA),J\n\n\n\n\n                                   MANOJ NARWANI /49(Downloaded on 19/02/2020 at 09:20:37 PM)Powered by TCPDF (www.tcpdf.org)