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2008 DIGILAW 2463 (RAJ)

Rajesh Panwar v. State of Rajasthan

2008-11-07

K.S.RATHORE, S.P.PATHAK

body2008
Judgment 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. 2. 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 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. 3. 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. 4. 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. 5. 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. 5. 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 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. 6. 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. 7. 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. 8. 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 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. 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 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 unknown place. 9. 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. 10. 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 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. 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 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. 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 passbook 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 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. 11. 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. 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. 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. 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 postmortem 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 bones were taken by Ashok Kumar. 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 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. 12. After close of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. on 20.7.2001. In 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. 13. After hearing final submissions, learned trial court convicted and sentenced the accused-appellant as indicated herein-above. Hence, the present appeal has been filed. 14. 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. 13. After hearing final submissions, learned trial court convicted and sentenced the accused-appellant as indicated herein-above. Hence, the present appeal has been filed. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. Circumstance No.(1):- 19. 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. 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 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. 20. 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. 20. The letter Ex.P9 of 1991 clearly indicates about the factum of the marriage of the deceased with the accused 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.” 21. 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 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 Para No.3 of 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. 22. 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. 23. His testimony at its face value is not at all reliable in view of the cross examination conducted from the witness on showing him the identity card, driving licence and other documents in relation to the accused, which showed that accused was residing at B-45, Shiv Path, Nehru Nagar, Jaipur. 24. The contention of the learned counsel for the accused appellant that there does not appear any certificate of marriage and in the absence of certificate of the marriage, it cannot be presumed that marriage was solemnised between the accused appellant and the deceased. In this connection, the learned counsel has placed some authorities to show that for the proof of marriage a certificate is must. The contention of the learned counsel is not tenable for the simple reason that factum of marriage between the accused and the deceased stands established in the present case on the basis of oral testimony as well as the documentary evidence. The accused has filed affidavit before the Executive Magistrate P.W.25 Devendra Singh. The accused was identified on the affidavit by P.W.20 Nathmal Sharma, Advocate. The affidavit speaks about the factum of the marriage and about the factum of death on a particular date at the house, where the accused was residing namely B-45, Shiv Path, Nehru Nagar, Jaipur. On the basis of affidavit Ex.P26, the accused was identified by P.W.20 Nathmal Sharma. Order was passed by the Magistrate for issuance of certificate. The affidavit speaks about the factum of the marriage and about the factum of death on a particular date at the house, where the accused was residing namely B-45, Shiv Path, Nehru Nagar, Jaipur. On the basis of affidavit Ex.P26, the accused was identified by P.W.20 Nathmal Sharma. Order was passed by the Magistrate for issuance of certificate. Death Certificate Ex.P53 was issued to him under the orders of the Registrar (Birth & Death) on 23.7.97. It, thus, appears that after the F.I.R.Ex.P1 was registered against the accused on 8.7.97 in the Police Station, Manak Chowk, Jaipur, the accused made efforts and tried to seek anticipatory bail in the matter and also tried to obtain the death certificate of the deceased. It is in this regard Ex.P26 affidavit was submitted before the Magistrate and got verified and a death certificate was obtained. The affidavit is dated 23rd July, 1997. 25. Now, in the above back-ground and in view of the documentary evidence adduced in this case, it is established that in Arya Samaj, the marriage was performed and the deceased was living with the accused continuously after April 7, 1991 when she was taken from her parental house by the accused. The factum of a child was born out of the wed-lock is concerned, P.W.1 Smt.Sharbati the mother of the deceased and P.W.2 B.D.Saxena the father of the deceased's testimony appears reliable as P.W.1 Smt.Sharbati has attended her daughter in Janana Hospital, Jaipur, where she delivered a child on 27th December, 1991. 26. In view of foregoing discussion, there is no hesitation in reaching to the conclusion that deceased Meenakshi was wife of accused appellant and they were married in Arya Samaj and out of their wed-lock a child was born in December, 1991. Circumstance No.(2):- 27. It is to be seen that as to whether the decomposed bones recovered in the case were recovered at the instance and on the information of the accused in presence of P.W.4 Manna Lal, P.W.6 Jagdish Prasad Sharma, P.W.14 Upendra Mohan Sharma and P.W.29 Shanker Lal Ojha. 28. It has been the contention of the learned counsel for the accused appellant that in the instant case it is doubtful whether the death of the deceased was homicidal. 28. It has been the contention of the learned counsel for the accused appellant that in the instant case it is doubtful whether the death of the deceased was homicidal. According to the learned counsel, the medical evidence adduced in the case by the prosecution is not sufficient to establish the factum that accused appellant was responsible for committing murder of Smt.Meenakshi. It has also been contended that recoveries were made from an open place, therefore, the recovery in the instant case is of no significance. It is also contended that some of the witnesses of recovery namely Chanda Lal, Labourer(who dug the pit), Atul Sharma and Shyamvir were not examined by the prosecution and one of the witnesses P.W.4 Manna Lal was declared hostile. Therefore, recovery of the bones at the instance of the accused becomes doubtful. 29. On the other hand, it has been contended that the accused was in the complete knowledge about the dead body of Meenakshi, where it was buried as per his information recorded during the course of investigation and in pursuance thereof, bones were recovered two times as on first occasion when the bones were recovered and doctors conducting post-mortem opined that there ought to be some more bones, therefore, again the pit was dug and bones were recovered. It is also contended that as regards Chanda Lal, Atul and Shyamvir are concerned, the trial court made all possible efforts as would appear from the ordersheets drawn by the trial court to procure their presence to record their statements, but they could not be traced and the evidence produced by the prosecution in relation to recovery in the present case coupled with the statement of P.W.29 Shanker Lal Ojha, the Investigating Officer of the case is sufficient to prove that on the information and at the instance of accused, recoveries of deceased's bones were made. 30. We have considered the above submissions of both sides carefully. 31. To appreciate the submissions made before us, it is necessary to examine the evidence led in this case in relation to recovery of skeleton from a pit. The pit was dug in front of the house of accused and skeleton of deceased was found on digging the same up to the level of 20 ft. 31. To appreciate the submissions made before us, it is necessary to examine the evidence led in this case in relation to recovery of skeleton from a pit. The pit was dug in front of the house of accused and skeleton of deceased was found on digging the same up to the level of 20 ft. P.W.4 Manna Lal, in his statement recorded by the trial court, has stated that he was taken by the police with them and when he reached Nehru Nagar, Jaipur, infront of a house, a person pointed out the place to be dugged by him as he was a labourer and doing work of digging sewerage line. He has stated that on digging the place pointed out to him by the person present at the spot up to the level of 20 ft., bones (skeleton), black hair etc. were recovered and seized by the police. A panchayatnama of the dead body (skeleton) Ex.P2 was drawn. He has also stated that memo in relation to digging the pit Ex.P3 was also drawn by the police and he signed the above memos. It is also stated that place from where skeleton was recovered, the police prepared site-plans Ex.P4 and Ex.P5. The witness in relation to the person, who pointed out the place which was dug could not be identified by him and on this point he was declared hostile. Thus, from his testimony, it appears that recovery of skeleton was made at the instance of one person present at the spot. In the cross examination, nothing could be extracted to show that his testimony was not reliable. It appears that the witness intentionally has not disclosed the name of the person, who pointed out the place which was dug by him. 32. Another witness is P.W.6 Jagidish Prasad Sharma. This witness has stated about the place of recovery. He stated that he was called by the police along with Shyamvir and at the spot some labourers were also present, the accused present in the court pointed out the place which was to be dug. He has also stated that when the pit was dug upto the level of 20 to 25 ft. in depth a skeleton and some hair of a woman were seen and those were taken out and thereafter police prepared necessary memos in this regard. He has also stated that when the pit was dug upto the level of 20 to 25 ft. in depth a skeleton and some hair of a woman were seen and those were taken out and thereafter police prepared necessary memos in this regard. The witness has admitted his signatures on Ex.P2 & Ex.P4. Nothing has been extracted from his cross examination to suggest that his evidence is not liable to be believed. A lengthy cross examination has been made from him running into several pages, but the sum and substance of his testimony could not be shakened. 33. P.W.14 Upendra Mohan Sharma is a witness in whose presence the bones were recovered and witness has proved Ex.P5. In the cross examination, he has stated that when he reached at the spot, he saw that a person was in the pit who took out the bones from the pit. He has admitted his signatures on Ex.P5. 34. P.W.29 Shaker Lal Ojha is the Investigating Officer of the case. He has stated that accused was arrested on 11.8.1997 and a memo Ex.P48 was drawn for his arrest. He has also stated that on very same day, the accused in police custody made a discloser statement Ex.P-49 to the effect that on 20th September, 1992 he murdered his wife and thereafter the dead body was buried in a pit, which was got dug by accused from labourers on the pretext that the same was required for sewerage purpose. It was also informed by the accused that after murdering Meenakshi, he kept the dead body in a pit which was dug infront of his house B-45, Shiv Path, Nehru Nagar, Jaipur in a bag, which was tightened with the help of a plastic rope, which he could get recovered. He has also stated that at the instance and on the basis of information given by the accused recorded in Ex.P49 and on pointing out the place by the accused infront of House No.B-45, Shiv Path, Nehru Nagar, Jaipur, a pit was dug in presence of witnesses and the bones were recovered after digging the pit upto the level of 20 ft. He has also stated that a human skeleton, pieces of torn bag, rope, hair etc. were recovered, which were seized and necessary memos Ex.P2 to Ex.P5, Panchayatnama, site-plans, recovery of bones were drawn. He has also stated that a human skeleton, pieces of torn bag, rope, hair etc. were recovered, which were seized and necessary memos Ex.P2 to Ex.P5, Panchayatnama, site-plans, recovery of bones were drawn. He has also stated that at the time of post-mortem conducted by the Medical Board, it was told that there ought to be more bones, therefore, again in presence of witnesses on 14.8.1997 the pit was dug and bones were recovered and in this regard Memos Ex.P5 and Ex.P12 were also drawn. He has also stated that on 15.8.1997, the accused gave information while in custody Ex.P51 to the effect that he obtained death certificate of the deceased and was also having stamp paper, photos etc. in his brother's house as the same were delivered to him. He has also stated that D.W.1 Roop Kishore came along with his grand-father Chandramohan in the police station and handed over a death certificate of deceased Smt. Meenakshi, wherein the date of death was mentioned as 23.9.92 and address where the deceased died was mentioned as B-45, Shiv Path, Nehru Nagar, Jaipur. He has also stated that a non-judicial stamp was also given to him by the above persons on which it was allegedly written by the deceased that she was going somewhere at her own desire and below the signatures date was mentioned as 20.9.92. He has also stated that some photos in relation to the marriage of the accused with the deceased were also handed over to him and in that regard Memo Ex.P16 was prepared by him and recoveries were made. He has also stated that on the basis of contents of death certificate Ex.P-53 and the date of death mentioned therein as 23.9.92, he procured relevant record from the Registrar (Birth & Death), Municipal Corporation, Jaipur along with an affidavit Ex.P26 presented by the accused for procuring death certificate and a Memo Ex.P16 was drawn. He has also stated that he also procured report submitted by the accused in relation to the death of deceased from the office of Municipal Corporation, Jaipur and a memo thereof Ex.P55 was drawn. He has also stated that he procured the copy of the anticipatory bail application moved by the accused before the Sessions Court. He has also stated that photography and videography of the place of recovery etc. was done. He has also stated that he procured the copy of the anticipatory bail application moved by the accused before the Sessions Court. He has also stated that photography and videography of the place of recovery etc. was done. He has also stated that during investigation saving bank account of the deceased and the cheques which were encashed by the accused soon after the death of the deceased were obtained from the concerned bank. In the lengthy cross examination addressed to the witness on the point that inquiry was not made in relation to House No.B-45 and accused in fact was not residing in House No.B-45, Shiv Path, Nehru Nagar, Jaipur and no recovery of skeleton was made at the instance of the accused, but the testimony of the witness could not be shakened. 35. P.W.19 Dr. Prem Bhargava was at the relevant time posted as Professor (Pathologist) in S.M.S. Medical College, Jaipur. He was one of the member of the Medical Board, who conducted the post-mortem of the deceased Meenakshi. P.W.24 Dr.M.R.Goyal Professor in the SMS Hospital, Jaipur and Medical Jurist conducted the post-mortem of the deceased. He has proved post-mortem reports Ex.P24 & Ex.P25. In the cross examination of P.W.24 Dr.M.R.Goyal, it has come that the skeleton was of a female and approximate time of death was more than a year. 36. After carefully examining the evidence of the prosecution witnesses, it appears that vide memo Ex.P-48, the accused was arrested on 11.8.97 and while he was in custody gave an information Ex.P49 regarding the dead-body kept by him in a pit which was in front of his house which was got dug by him on the false pretext that same was required for sewerage purpose and in that pit subsequently dead-body of the deceased in a plastic bag was kept and the same was put in the pit, the pit thereafter was filled with sand and stones etc. On the basis of disclosure statement recoveries of bones of the deceased were made in presence of P.W.4 Manna Lal, P.W.6 Jagdish Prasad Sharma and P.W.14 Upendra Mohan. The bones of the deceased were examined on two occasions by the medical board. Ex.P24 & Ex.P25 are the post-mortem reports. Approximate time of death was more than a year as stated by PW-24 Dr. M.R. Goyal. 37. The bones of the deceased were examined on two occasions by the medical board. Ex.P24 & Ex.P25 are the post-mortem reports. Approximate time of death was more than a year as stated by PW-24 Dr. M.R. Goyal. 37. The contention of the learned counsel that recovery made from an open place is liable to be rejected for the simple reason that recovery of the skeleton and other articles was made after digging the earth upto the level of more than 20 ft. and this specific fact was only in the knowledge of the accused only and none else. If that is so, then in view of the provisions contained in Section 106 of the Indian Evidence Act, the burden shifts upon the person denying any such knowledge. It has also been found while discussing circumstance No.1 that accused was residing in House No.B-45, Shiv Path, Nehru Nagar, Jaipur and in front of above house a pit was dug on pointing out the place by the accused and from that pit bones were recovered. The fact which cannot be disputed is that a pit was dug in front of House No.B-45, Shiv Path, Nehru Nagar, Jaipur and on digging the pit upto the depth of 20-25 ft., bones were recovered of a female and this fact could not have been in the knowledge of other person except the accused as he gave discloser statement to the police Ex.P49 and subsequently on the basis of disclosure statement recoveries were made in presence of witnesses as discussed above, then in the above circumstances, the argument of the learned counsel is of no significance that the recoveries were made from open place. Therefore, the circumstances in the case suggest that accused got dug the pit in font of his house B-45, Shiv Path, Nehru Nagar, Jaipur on the false pretext that a pit was required to be dug for sewerage purpose and when the pit was dug, the dead body was subsequently put in the pit and it was filled. 38. It has also been the contention of the learned counsel that witnesses; namely, Chandalal and Atul Sharma have not been examined by the prosecution, therefore, adverse inference should be drawn against the prose-cution. 38. It has also been the contention of the learned counsel that witnesses; namely, Chandalal and Atul Sharma have not been examined by the prosecution, therefore, adverse inference should be drawn against the prose-cution. The contention of the learned counsel is not tenable for the simple reason that perusal of the record reveals that one of the witness of recovery memo of bones Ex.P5, Atul Sharma could not be examined for the reason that on repeatedly summoning the witness, he could not be traced on the address given by the witness and the same is the position in relation to Chanda Lal and the evidence which has been discussed above of P.W.4, P.W.6, P.W.14 & P.W.29 namely Manna Lal, Jagdish Prasad Sharma, Upendra Mohan and Shanker Lal Ojha is sufficient to establish the circumstance in the present case that on the information of the accused, which was recorded in Ex.P49 the bones were recovered and when the skeleton was examined, it was found to be of a female and approximate time of death was more than a year. 39. In the present matter, as per further disclosure statement of the accused, death certificate Ex.P53, the report made by the accused in relation to the death and also the nonjudicial stamp were recovered. The stamp paper recovered at the instance of accused reveals that the deceased left the house on 20.9.92 at her own desire whereas as per the anticipatory bail application moved before the Sessions Judge by the accused where specific date of death has been stated as 20.9.92. It has also been stated in the bail application that both deceased and the accused got married and out of their wed-lock a child was born and they were living in House No.B45, Shiv Path, Nehru Nagar, Jaipur. It has also come in the evidence that accused himself made efforts and filed affidavit for obtaining a death certificate before the Executive Magistrate wherein accused was identified by P.W.20 Nathmal Sharma, Advocate, all the above discussed documents reveals that the accused had the knowledge to the effect that Meenakshi was no more in the world otherwise there was no occasion for the accused to have stated the exact date of death at various places. All the above discussed circumstances suggests that the deceased Meenakshi's dead body was buried by the accused after murdering her. All the above discussed circumstances suggests that the deceased Meenakshi's dead body was buried by the accused after murdering her. It is not possible in the circumstances to assign the exact reason of death of deceased as the deceased's body was kept at the depth of 20-25 ft. beneath the earth 5 years back. 40. In the above discussed facts and circumstances of the case, we are of the opinion that there is enough material available on record, which proves sufficiently that it was the accused only, who gave information Ex.P49 to P.W.29 Shanker Lal Ojha the Investigating Officer of the case in relation to dead-body of deceased kept by him in a pit in front of his house No.45, Shiv Path, Nehru Nagar, Jaipur. The learned trial court has also correctly and elaborately discussed the evidence and rightly came to the conclusion that it was only the accused, who was responsible for the death of the deceased and the body was concealed by him in a pit in front of his House No.45, Shiv Path, Nehru Nagar, Jaipur. Circumstance No.(3) :- 41. In the instant case, deceased Meenakshi was having a saving bank account in Indian Overseas Bank, Bani Park, Jaipur and accused was having knowledge of the fact that Meenakshi has been murdered and she was no more. The accused, in the above circumstances, produced two cheques Ex.P-22 and Ex. P-23 signed by Meenakshi in the bank and from the saving bank account on 29.10.1992 a sum of Rs.4,900/- was withdrawn. This fact has been established by the statement of PW-18 Alok Chaturvedi who was at the relevant time Manager in the bank. In his statement he has also stated that he had seen deceased and accused coming to the bank. It appears that the signatures were obtained on the cheques of the deceased prior to her death and subsequently, the accused knowing it well that the deceased has been murdered by him, presented the cheques and withdrew the amount from the saving bank account of the deceased. The deceased was having her saving bank account could not have been in the knowledge of others but the accused. The examination-in-chief and the cross-examination of the witness suggest that the accused could not explain this circumstance which is against him that soon after the death he submitted cheques knowing it fully well that the deceased had died. The deceased was having her saving bank account could not have been in the knowledge of others but the accused. The examination-in-chief and the cross-examination of the witness suggest that the accused could not explain this circumstance which is against him that soon after the death he submitted cheques knowing it fully well that the deceased had died. Circumstance No.4: 42. As per the statement of B.D. Saxena PW-2 and Rajendra PW-11 and other witnesses, which has been discussed above, clearly suggests that the accused got married with the deceased and the family members of the deceased were not permitted to enter the house of the accused. It has also come in the evidence that the accused obtained death certificate of the deceased by filing affidavit. In the affidavit it has been stated by the accused that in September, 1992, deceased Meenakshi died. But nothing was intimated to the parents of the deceased. It also appears from various documents which have been discussed here-in-above that the accused and deceased were living in B-45, Shiv Path, Nehru Nagar, Jaipur and out of their wedlock one son was born. The mother of the deceased Smt. Sharbati Devi has stated that she attended the deceased in the hospital while the deceased was pregnant. The conduct of the accused without any manner of doubt indicates that he did not intimate the police of the deceased till first information report was lodged against him and during the course of investigation he made disclosure statement about the deceased that she ws done to death by him. In the afidavit filed by the accused before PW-25 Davendra Singh Executive Magistrate that Meenakshi was his wife and on 23.9.1992 Meenakshi had died. In the above circumstances, accused on making enquiry from him by the father, mother and the brother of the deceased was not permitting them to enter his house and was mis-guiding them. In an anticipatory bail application Ex.P-56 moved before the Sessions Judge, the fact has alsob een stated that Meenakshi was his wife and son Puneet was born out of their wedlock and his son was residing with his grand-father. In an anticipatory bail application Ex.P-56 moved before the Sessions Judge, the fact has alsob een stated that Meenakshi was his wife and son Puneet was born out of their wedlock and his son was residing with his grand-father. In the statement recorded under section 313 Cr.P.C., in relation to explaining the circumstances against him, he has denied everything but then obtaining of death certificate, filing of anticipatory bail application and the recovery of non-judicial stamp signed by the deceased, wherein it was stated that the deceased had left the house at her own desire on 20.9.1992. All the above circumstances indicate that the accused was having all knowledge about the deceased that she was no more in the world and no where-abouts were made known to the parents of the deceased. It cannot be disputed, in view of the evidence led and discussed here-in-above, that the appellant and the deceased were husband and wife and when the deceased had left the house and this fact was to be required to be brought to the notice of the parents of the deceased or at least some report was required to be lodged but nothing has been done. It appears that the father of the deceased when came to know after a news item flashed in Dainik Bhaskar on 20.6.1997 that the accused was involved in a criminal case of cheating and purgery then the father of the deceased lodged the report and matter could come to light. 43. In view of the above discussions, we are of the opinion that the conduct of the accused was such which leads to inference that he knew fully well that the deceased was murdered by him and thereafter her dead-body was kept in a pit which was in front of his house and the same was recovered at the instance of the accused while he was in police custody. The parents of the deceased were not given any information or where-abouts of the deceased. Thus, the prosecution, in our opinion, has been able to prove this circumstance against the accused. 44. In view of the fore-going discussions, we find that the following circumstances stand established against the accused to connect him with the commission of crime. (i) The deceased Smt. Meenakshi was wife of accused appellant and out of their wedlock a son was born and he is living with his grand-father. 44. In view of the fore-going discussions, we find that the following circumstances stand established against the accused to connect him with the commission of crime. (i) The deceased Smt. Meenakshi was wife of accused appellant and out of their wedlock a son was born and he is living with his grand-father. (ii) The dead-body (skeleton, bones, hair etc.) of the deceased was recovered in decomposed condition from a pit infront of the house of accused when it was dug up to the level of more than 20 ft. (iii) The accused after the death of the deceased obtained death certificate and in that regard filed affidavits. The death certificate was recovered at the instance of the accused. The birth certificate of the son of the deceased was also recovered at the instance of the accused; (iv) The accused withdrew the amount soon after the death of the deceased from her saving bank account; (v) The conduct of the accused also suggests that he did not inform the parents of the deceased that the deceased had left the house after making a mention on a non-judicial stamp paper that she was leaving the house at her own desire. 45. All these circumstances in the present case are enough to come to a conclusion that it was the accused who committed the murder of his wife Smt. Meenakshi and to conceal her dead-body, on the false pretext that a pit was required to be dug for sewerage purpose infront of his house and the pit was dug in the day light and subsequently, the dead body of the deceased was kept in a plastic bag, mouth of the bag was tightened with the plastic ropes, the same was subsequently put in the pit and thereafter the pit was filled with sand, stones etc. and ultimately on lodging FIR on the basis of disclosure statement made by the accused decomposed dead-body was recovered. On examining the dead-body by the medical board, the bones were found to be of a female and time of death was approximately more than a year. and ultimately on lodging FIR on the basis of disclosure statement made by the accused decomposed dead-body was recovered. On examining the dead-body by the medical board, the bones were found to be of a female and time of death was approximately more than a year. The above circumstance leaves no manner of doubt that it was only the accused who committed the crime, therefore, in view of the above discussed circumstances and the conclusion drawn by us which indicates about the guilt of the accused, we find that the learned trial court has rightly convicted and sentenced the accused under section 302 and 201 IPC, the appeal of the appellant is liable to be dismissed. 46. In the result, the appeal is dismissed and the judgment and order dated 15.1.2002 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No.94/1998, 1/2001 is confirmed.