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Rajasthan High Court · body

2019 DIGILAW 2044 (RAJ)

Sandeep Parshar v. State of Rajasthan

2019-07-26

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Appellant had faced trial in FIR No. 126 dated 22.8.2012 registered at Police Station Mukundgarh, District Jhunjhunu for the offence punishable under Section 302 and 201 Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). 2. Prosecution story, in brief, as per the FIR is that complainant-Naveen Sharma was posted as Manager with Dundlod Public School since the year 2005. Sandeep Parashar joined the school on 15.4.2011 as a Teacher. Sandeep Parashar was residing in quarter No. C-7 alongwith his wife Manisha. Manisha was not working in the school. On 21.8.2012, he received information that bad smell was emitting from the quarter of Sandeep Parashar. Kailash Swami informed him that quarter was lying closed. Kailash Swami informed complainant-Naveen Sharma that he had contacted appellant on phone and appellant had told him that he would come on the next day and check it. However, on the next day, when effort was made to contact the appellant, his mobile phone was switched off. Thereafter, complainant alongwith Kailash Swami, Narachand, Rakesh and Gyan Prakash went to the quarter of the appellant and opened the lock. There was lot of foul smell in the quarter. When they entered the bathroom, they found that in a plastic white bag dead body of Manisha had been kept. Face and hair of Manisha were out of the bag. They immediately informed the police and it reached the spot. From the spot, police had lifted the papers vide memo Exhibit P-3 and he had attested the said memo. On the said paper, it had been written that "I have murdered my wife and no effort should be made to search me". 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charges were framed against the appellant under section 302/201 IPC. Appellant did not plead guilty and claimed trial. 5. During trial, prosecution in order to prove its case, examined 29 witnesses. 6. Appellant when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that he had left for Agra to meet his brother Pradeep on 19.8.2012 at about 9-10 a.m. He had left his wife in the quarter on 22.8.2012. Complainant had informed him that bad smell was coming from his room. 7. Thereafter, he received information about the murder of his wife. He reached the quarter on 24.8.2012 and was arrested on 26.8.2012. Complainant had informed him that bad smell was coming from his room. 7. Thereafter, he received information about the murder of his wife. He reached the quarter on 24.8.2012 and was arrested on 26.8.2012. He had not murdered his wife. At the time of incident, he was present in Agra. He was innocent. 8. Appellant examined one witness in his defence. 9. Trial court vide judgment/order dated 3.11.2014 ordered the conviction and sentence of the appellant under Section 302 and 201 IPC. Hence, present appeal by the appellant. 10. Learned counsel for the appellant has submitted that prosecution had miserably failed to prove its case. Appellant had been falsely involved in this case merely on the basis of suspicion. Appellant was leading a happy married life with his wife and there was no reason for him to commit the murder of his wife. 11. Learned State counsel has opposed the appeal. 12. Present case relates to murder of Manisha. Prosecution case rests on circumstantial evidence. 13. It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 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. 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. 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." 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. 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." 14. Let us examine the circumstances brought on record by the prosecution to come to a conclusion as to whether appellant had committed murder of his wife. 15. The first circumstance brought on record by the prosecution is the writing taken in possession from the spot vide memo Exhibit P-3. As per the said writing which is signed by the appellant, it has been mentioned that appellant had murdered his wife, as due to politics he had been removed from service and he was under mental strain. It was further stated that no effort should be made to search him as he was also going away. The writing on the paper recovered vide Exhibit P-3, was got compared with the handwriting of the appellant from a handwriting expert. Report of the handwriting expert is Exhibit P-10. A perusal of the said report reveals that the disputed writing matched with the handwriting of the appellant. Admittedly, as is evident from the statement of the appellant under section 313 Cr.P.C., he was residing in the quarter-in-question alongwith his wife. Thus, prosecution had been successful in establishing the circumstance with regard to the recovery of the writing from the spot, wherein, appellant had confessed that he had committed murder of his wife. 16. Another circumstance available on record is that appellant has stated in his statement under section 313 Cr.P.C. that he was present in his quarter, wherein, he was living with his wife upto 18.8.2012 and had left the quarter on 19.8.2012 to meet his brother Pradeep. 17. DW-1 Pradeep Kumar has deposed that appellant had come to his place on 18.8.2012. Thus, from the statement of DW-1 as well as the plea of the appellant under section 313 Cr.P.C., appellant had left his quarter on 18/19.8.2012. 18. Exhibit P-17 is the postmortem examination report of the deceased. 17. DW-1 Pradeep Kumar has deposed that appellant had come to his place on 18.8.2012. Thus, from the statement of DW-1 as well as the plea of the appellant under section 313 Cr.P.C., appellant had left his quarter on 18/19.8.2012. 18. Exhibit P-17 is the postmortem examination report of the deceased. The same has been proved by PW-17 Doctor Arun Kumar Sharma. PW-17 Doctor Arun Kumar Sharma has deposed that the time between death and postmortem examination was 5-7 days. Postmortem examination of the deceased was conducted on 23.8.2012. This shows that the murder had been committed about 5/7 days prior to the postmortem examination of the deceased. 19. DW-1-Pradeep Kumar has stated that appellant had reached his house on 18.8.2012, whereas, it is the case of the appellant that he had left his house in the morning on 19.8.2012. This shows that appellant after committing the murder had locked the house and had left for Agra. The quarter of the appellant was lying locked from outside. Dead body of wife of the appellant was lying in the bathroom in a plastic bag. Appellant was liable to explain the circumstances under which the dead body of his wife was lying in the bathroom in a plastic bag, especially when the quarter was locked from the outside and it is the case of the appellant himself that he had left his quarter on 19.8.2012. 20. Another circumstance brought on record by the prosecution is that on 19.8.2012, Manager of the school where the appellant was working as a Teacher, was informed that a foul smell was emitting from the house of the appellant. Manager asked Kailash Swami to enquire into the matter and was informed by Kailash Swami that the quarter was lying locked and appellant had told him on phone that he would come on the next day, when he was informed that foul smell was coming from his quarter. However, on the next day, effort was made to contact the appellant but mobile phone of the appellant was switched off. Thereafter, complainant alongwith others entered the quarter of the appellant after breaking the lock and they recovered dead body of Manisha in the bathroom. Police was immediately informed. Statement of complainant-Naveen Sharma in this regard is duly corroborated by PW-6 Kailash Swami, PW-13 Banwari Lai Ranwa (owner of the school), PW-5 Narain Chand Rakesh and PW-7 Gyan Prakash. 21. Thereafter, complainant alongwith others entered the quarter of the appellant after breaking the lock and they recovered dead body of Manisha in the bathroom. Police was immediately informed. Statement of complainant-Naveen Sharma in this regard is duly corroborated by PW-6 Kailash Swami, PW-13 Banwari Lai Ranwa (owner of the school), PW-5 Narain Chand Rakesh and PW-7 Gyan Prakash. 21. This shows that in case appellant was innocent, he should immediately reached his quarter and checked as to why bad smell was emitting from his house. Rather, the mobile phone of the appellant was switched off on the next day, although, initially, he had stated on 21.8.2012 that he would come on the next day. Appellant could have made effort to contact his wife or could have told PW-6 that his wife was at home and she could be contacted. 22. PW-18 Abhilasha has deposed that she had got married to the appellant on 20.10.1999. However, their relations were not cordial. She was blessed with a son out of her wedlock. In the year 2007, she had filed dowry case against the appellant. Thereafter, appellant had met with an accident and he was left at her place. She had looked after the appellant. After recovery, appellant had left her house and had performed marriage with Manisha. After the year 2010, she was not in contact with the appellant. Appellant was quarrelsome person. 23. PW-11 Banwari Lai deposed that on 15.8.2012, one person had come to his shop and had purchased 50 kilogram millet for Rs. 650/-. He had given him millet in a white plastic bag. 24. PW-16 Doctor Shivdan Singh deposed that on 26.8.2012, he had medically examined the appellant and had found two injuries on his person. The said injuries were about 7 days old. He proved the report Exhibit P-16. A perusal of Exhibit P-16 reveals that appellant had suffered simple injuries on his right forearm and left leg. This also shows that the appellant might have suffered the said injuries at the time of commission of crime. 25. Thus, in the present case, the totality of circumstances brought on record lead to the conclusion of the guilt of the accused and negate the possibility of someone else having committed the crime. There is no missing link in the present case which could render the prosecution case doubtful. 25. Thus, in the present case, the totality of circumstances brought on record lead to the conclusion of the guilt of the accused and negate the possibility of someone else having committed the crime. There is no missing link in the present case which could render the prosecution case doubtful. Hence, we are of the considered opinion that the prosecution had been successful in establishing its case. 26. In the facts and circumstances of the present case, learned trial court had, thus, rightly ordered the conviction and sentence of the appellant with regard to the charges framed against him. 27. Accordingly, appeal is dismissed. Impugned judgment/order dated 3.11.2014 passed by the trial court are upheld.