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2019 DIGILAW 1956 (RAJ)

Puranmal v. State of Rajasthan

2019-07-15

GOVERDHAN BARDHAR, SABINA

body2019
ORDER : 1. Appellants had faced trial in FIR No. 80 dated 28.03.2010 registered at police station Chaksu, District Jaipur under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). 2. Prosecution story in brief is that on 28.03.2010, an information was received at the police station, at about 6.30 a.m. that a dead body of an unknown person was lying on the road near Jhujhatpura Puliya. The dead body was sent for postmortem examination. 3. After completion of investigation and necessary formalities, challan was presented against the appellants. 4. Prosecution in order to prove its case examined nineteen witnesses during trial. Appellants when examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') prayed that they were innocent and had been falsely involved in this case. Appellants examined one witness in their defence. 5. Trial Court vide judgment/order dated 25.05.2011 ordered the conviction and sentence of the appellants under Sections 302 and 201 IPC. Hence, the present appeal by the appellants. 6. Learned counsel for the appellants has submitted that prosecution has failed to establish its case. Vishakha was wife of deceased Vikram. Appellant Ramkumar is the brother of Vishakha. Appellant Puranmal was married to sister of Vishakha. Wife of Puranmal has died. It was not believable that Ramkumar would have joined hands with Puranmal to commit the murder of Vikram. As per the prosecution story, appellant Puranmal wanted to develop relations with Vishakha after the death of his wife. Appellant Ramkumar used to tell Vikram and his family members that Vishakha was not suitable for their family. In case, Ramkumar believed that his sister was not suitable match for Vikram then there was no occasion for him to have murdered Vikram, especially, when his sister was married and was having children to look after. PW-1 Rajendra Prasad Yadav is brother of the deceased. The said witness has admitted in his cross-examination that Vikram had served the Army for about 3 years and thereafter, had deserted for last about 5 years. Warrants were being issued by the Army for summoning him. Vikram was fond of liquor and for this purpose he used to borrow money from other persons and they used to repay the same. Vikram had taken money from 15/20 persons but he was unable to give their names. Warrants were being issued by the Army for summoning him. Vikram was fond of liquor and for this purpose he used to borrow money from other persons and they used to repay the same. Vikram had taken money from 15/20 persons but he was unable to give their names. Learned counsel has further submitted that as per Exhibit-P-5 blood stained iron rod as well as mattress were recovered at the instance of appellant Ramkumar on 31.03.2010, whereas, as per Exhibit P-21-A, the said articles were deposited in the Malkhana on 29.03.2010. Thus, it shows that Investigating Agency had done padding to involve the appellants falsely in this case. The said recovered articles were not produced, during trial. All the witnesses examined by the prosecution are closely related to each other and have deposed against the appellants to falsely involve them in this case. 7. Learned State counsel, who is assisted by the counsel for the complainant, has opposed the appeal. 8. Learned counsel for the complainant has submitted that Vishakha (wife of the deceased) has appeared in the witness-box as PW-4. There was no occasion for PW-4 to have falsely involved her real brother in this case. It was proved on record that Vikram had gone to meet appellants on 27.03.2010 in the evening. After taking lunch, Vikram had told PW-7 that he was going to meet appellant Ramkumar. Thereafter, appellants committed the murder of Vikram. Dead body of Vikram was recovered on the next day. Appellant Puranmal had been threatening Vikram with dire consequences. 9. Present case relates to murder of Vikram. Case rests on circumstantial evidence. It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh, AIR 2012 SC 1552 , as under:- "There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial." 10. It has also been held by the Hon'ble Supreme Court in Bachan Singh vs. State of Punjab, 1980 (2) SCC 684 , as under:- "In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under: (i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefore, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty. (ii)(a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGantha v. California (1971) 402 US 183 (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. (iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area. (iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. (iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life. (v)(a) Relevant facto and circumstances Impinging on the nature and circumstances of the crime can be brought before the Court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facto and circumstances had been specifically provided. When counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts. (b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21." 11. Thus, let us examine the circumstances brought on record by the prosecution to come to the conclusion as to whether, prosecution has been successful in establishing its case with regard to the guilt of the appellants. 12. Parties are closely related to each other. Vishakha (sister of appellant Ramkumar) was married to deceased Vikram. Sister of Vishakha was married to appellant Puranmal. Another sister of Vishakha is married to PW-1 Rajendra Prasad Yadav (brother of the deceased). 13. In a case resting on circumstantial evidence, motive gains significance. 14. So far as appellant Puranmal is concerned, motive alleged against him is that after the death of his wife, he wanted to develop relations with Vishakha, wife of the deceased. It was also the prosecution case that Puranmal had threatened Vikram with dire consequences. If that be so, then there was no occasion for the deceased to have gone with appellant Puranmal as stated by prosecution witness PW-13. 15. So far as appellant Ramkumar is concerned, it is the prosecution case that he used to tell Vikram and his family members that Vishakha was not suitable for their family. 16. It is not understandable as to why appellant Ramkumar would commit the murder of Vikram, if he had any grievance against his sister Vishakha. It is also not understandable as to why appellant Ramkumar who had some grievance against his sister Vishakha would join hands with Puranmal to help his brother-in-law to develop relations with his sister Vishakha by committing murder of Vikram. 17. Thus, in the present case, motive alleged by the prosecution against the appellants to have committed the murder of Vikram fails to inspire confidence. It appears that motive has been introduced in the case by the prosecution witnesses to falsely involve the appellants in this case. 18. 17. Thus, in the present case, motive alleged by the prosecution against the appellants to have committed the murder of Vikram fails to inspire confidence. It appears that motive has been introduced in the case by the prosecution witnesses to falsely involve the appellants in this case. 18. Although, Vishakha while appearing in the witness-box as PW-4, Rajendra Prasad while appearing in the witness-box as PW-1, Suresh Yadav while appearing in the witness-box as PW-7, PW-2 Haripal (uncle of the deceased), PW-8 Chando Devi (mother of the deceased) and PW-9 Harchand (father of the deceased) have alleged that they suspected that Vikram had been murdered by the appellants. However, suspicion in itself cannot take place of proof. Prosecution is required to prove its case by leading cogent evidence to establish the guilt of the accused. 19. Another circumstance brought on record by the prosecution is that the deceased had met PW-7 Suresh Yadav on 27.03.2010 in the evening for lunch. After taking lunch, Vikram had told him that he was going to meet appellant Ramkumar. 20. PW-13 Dayaram Yadav deposed that he had met Vikram on 27.03.2010 at about 3/3.15 p.m. Vikram had taken Rs. 200/- from him for purchase of liquor and had told him that he was going to meet his brother-in-law Ramkumar. Vikram told him that, thereafter, he would go alongwith appellant Puranmal on his Truck. 21. Although, PW-7 and PW-13 have deposed that the deceased had told them that he was going to meet appellant Ramkumar but there is no material on record to substantiate the fact that deceased had actually gone and met appellant Ramkumar or appellant Puranmal, thereafter. In this regard, testimony of PW-5 is relevant. 22. PW-5 Mamraj deposed that he knew Vikram as he used to come and visit appellant Ramkumar, who was their tenant. On 27.03.2010, he returned home from petrol pump and saw that the room of Ramkumar was unlocked and window was open and light of the room was on. However, he did not notice as to who was sitting inside the room. 23. Since, witness PW-5 knew Vikram, in case, he had seen Vikram in the company of appellant Ramkumar, he would have noticed the presence of Vikram with appellant Ramkumar. 24. Thus, the circumstance of the deceased having been last seen in the company of the appellants was not established, during trial by the prosecution. 25. 23. Since, witness PW-5 knew Vikram, in case, he had seen Vikram in the company of appellant Ramkumar, he would have noticed the presence of Vikram with appellant Ramkumar. 24. Thus, the circumstance of the deceased having been last seen in the company of the appellants was not established, during trial by the prosecution. 25. PW-4 Vishakha has deposed that Vikram had left the house about one month prior to his death. Vikram used to talk her on phone and tell her about his whereabouts. On 27.03.2010, she had received a phone call from Vikram and he had talked to her and her mother-in-law and told them he was in Jaipur. PW-8 Chando Devi has corroborated the statement of PW-4 in this regard. However, PW-9 Harchand father of the deceased has deposed that they had received a phone call three days prior to the incident from his son and he had informed that he was speaking from Jaipur and would return home in 2/3 days. 26. Although, mobile phone of the deceased was taken in possession by the police but no call details have been proved on record in this regard to corroborate the deposition made by PW-4, PW-8 and PW-9. 27. A circumstance that creates doubt in the prosecution story is that as per Exhibit P-5 and Exhibit P-6 iron rod and blood stained mattress were recovered on 31.03.2010 on the basis of disclosure statements suffered by appellant Ramkumar. However, as per Exhibit P-21-A, the said articles were deposited in the Malkhana on 29.03.2010. The said discrepancy, shows that the Investigating Agency had done padding for the success of its case. 28. Another circumstance relied upon by the prosecution against the appellants is that tyre marks of a Trolla were present near the spot, where the dead body was lying. However, the said tyre marks were never lifted and got examined with the Trolla recovered at the behest of appellant Puranmal. 29. PW-6 Rakesh deposed that on 27.03.2010 a Trolla was parked at their petrol pump but he could not tell as to who was in the said Trolla. Appellant Ramkumar told him that the Trolla would not be parked there for long. 30. PW-16 Ramkumar deposed that he was the owner of the Trolla (recovered at the behest of appellant Puranmal). Puranmal was working as a driver on the Trolla. Appellant Ramkumar told him that the Trolla would not be parked there for long. 30. PW-16 Ramkumar deposed that he was the owner of the Trolla (recovered at the behest of appellant Puranmal). Puranmal was working as a driver on the Trolla. On 27.03.2010 he had received a phone call from Puranmal at 9.00 p.m. and he had told him that he was taking the Trolla to Jaipur as he had some work over there. However, the said witness in his cross-examination deposed that he was a student. The Trolla-in-question was being managed by his father. He could not give the details of the said Trolla. He could not tell that from where he had purchased the Trolla and for how much. He also deposed that on 27.03.2010 Puranmal had talked to his father on mobile phone. When they went to the police station, they had conducted the proceedings after taking advice from the lawyer. 31. Thus, the testimonies of PW-6 and PW-16 fail to advance the prosecution story. PW-6 could not tell about the number of the Trolla or the person who was driving the Trolla. So far as PW-16 is concerned, his statement can be said to be hearsay as he had not himself talked to appellant Puranmal on 27.03.2010. 32. Thus, in the present case, prosecution has failed to establish the complete chain and circumstances leading to the guilt of the appellants and negate the possibility of someone else having committed the crime. Prosecution has failed to establish the fact that the deceased was last seen in the company of the appellants. As per the prosecution case, appellant Puranmal had threatened Vikram with dire consequences as he wanted to develop relations with Vishakha wife of the deceased. If that be so, then, there was no occasion for Vikram to have agreed to travel in the Trolla of appellant Puranmal. Similarly, appellant Ramkumar also had no motive to commit the murder of Vikram because if he had any differences with his sister Vishakha, then, it would not have given him a motive to commit the murder of Vikram. Rather, as per the prosecution story, appellant Ramkumar had been telling Vikram and his family members that Vishakha was not suitable match for their family. Thus, it appears in the present case, the prosecution has built up its story on the basis of suspicion. 33. Rather, as per the prosecution story, appellant Ramkumar had been telling Vikram and his family members that Vishakha was not suitable match for their family. Thus, it appears in the present case, the prosecution has built up its story on the basis of suspicion. 33. It is a settled principle of law that suspicion how-so-ever strong cannot take the place of proof. It is also settled principle of law that the prosecution is required to establish its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. An accused is presumed to be innocent till proved guilty. 34. However, in the present case, prosecution has failed to complete the chain and circumstances leading to the guilt of the appellants with regard to their involvement in the crime. Hence, appellants are liable to be acquitted of the charges framed against them by giving them benefit of doubt. 35. Accordingly, this appeal is allowed. Judgment/order of the trial court dated 25.05.2011 are set aside. Appellants are acquitted of the charges framed against them. Appellants, who are in jail, be set at liberty forthwith, if not required in any other case. 36. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants are directed to furnish a personal bond in the sum of Rs. 25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.