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Rajasthan High Court · body

2019 DIGILAW 2089 (RAJ)

Bhola Jadav v. State of Rajasthan

2019-07-31

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT 1. Appellant has filed the appeal against the judgment/order dated 15.01.2019 passed by the trial court, whereby, he was convicted and sentenced qua offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Appellant was acquitted qua charge framed against him under Sections 376/511 read with Section 201 IPC. 2. FIR No.42 dated 06.02.2013 was registered at Police Station Jyoti Nagar, District Jaipur City (South) under Section 302/34 IPC on the basis of the report lodged by complainant- Priya. 3. Prosecution story, in brief, is that on 05.02.2013, complainant-Priya had gone to her office at about 9.30 a.m. Jyoti, elder daughter of the complainant and their servant Bhola Jadav (appellant) were present in the house. Preeti, younger daughter of the complainant had left for her school at 7.30 a.m. When complainant returned home in the evening between 5.15 to 5.45 p.m., she could not see her daughter Jyoti and she enquired about her whereabouts from the appellant. Appellant showed his ignorance about the whereabouts of Jyoti. Then, she enquired from her mother-in-law, Rajni Bala about the whereabouts of Jyoti, but she also told her that she had enquired from Bhola Jadav and Preeti about the whereabouts of Jyoti, but they had not told her about the said fact. Preeti told her that marriage of Sangeeta was fixed for the next day and Jyoti might have gone there. Then, they made a phone call to Jyoti on mobile phone No.9530166685, but the said mobile phone was switched off. Then, they tried to search for Jyoti, but could not find her. At about 9/10 p.m., when she returned home, her mother-in-law enquired from her about Jyoti and told her that first they should look for her in the house. When they opened the door of the drawing room, they found that Jyoti was lying on the floor. A white and blue colour 'Dupatta' was tied around her neck. Then, they immediately called their tenant Dharmendra Singh to the spot and brought Jyoti down stairs. Hands and feet of Jyoti had been tied and they found that Jyoti was dead. 4. After completion of investigation and necessary formalities, challan was presented against the appellant. 5. Charges were framed against the appellant under Sections 302, 376/511 and 201 IPC. 6. Appellant did not plead guilty and claimed trial. 7. Hands and feet of Jyoti had been tied and they found that Jyoti was dead. 4. After completion of investigation and necessary formalities, challan was presented against the appellant. 5. Charges were framed against the appellant under Sections 302, 376/511 and 201 IPC. 6. Appellant did not plead guilty and claimed trial. 7. In order to prove its case, prosecution examined twenty four witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, prayed that he was innocent and had been falsely involved in this case. 8. Appellant did not examine any witness in his defence. 9. Trial court vide impugned judgment/order dated 15.01.2019 ordered the conviction and sentence of the appellant under Section 302 IPC. Appellant was acquitted qua offence punishable under Section 376/511 and 201 IPC. Hence, the present appeal by the appellant. 10. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case merely on the basis of suspicion. Complainant while appearing in the witness box as PW-1 has deposed that she had no suspicion against the appellant. Appellant had not committed the murder of her daughter. In-fact, she suspected that her daughter had been murdered by Rejeev Dubey and her in-laws family. PW-6 Dharmendra Singh (tenant) and PW-10 Mumtaz Ahmad (tenant) have also not supported the prosecution case, during trial. Recovery of mobile phone allegedly belonging to the deceased, has been falsely foisted on the appellant. 11. Learned State counsel has opposed the appeal. 12. Present case relates to murder of Jyoti. 13. As per the postmortem examination report Exhibit-P-51, cause of death of the deceased was strangulation. Exhibit-P-51 further reveals that deceased had suffered 14 injuries. It was also opined by the doctors that hymen of the deceased was 'old healed torn'. Exhibit-P-51 was proved by PW-13 Doctor Lal Chand Verma. 14. The said witness in his cross-examination admitted that there were no sign of rape or attempt to rape on the dead body. 15. Present case rests on circumstantial evidence. 16. It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh, (2012) AIR 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. 15. Present case rests on circumstantial evidence. 16. It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh, (2012) AIR 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. 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." 17. 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." 17. 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. 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. 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. 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. 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." 18. Let us examine the evidence led by the prosecution to come to a conclusion as to whether prosecution had been successful in proving the chain of circumstances leading to the guilt of the appellant. 19. Complainant-Priya while appearing in the witness box as PW1 has deposed that appellant had not committed the murder of her daughter Jyoti. She suspected that her daughter had been murdered by Rajeev Dubey and her mother-in-law. 20. PW-2 Bakhtawar singh has not supported the prosecution case during trial. 21. PW-3 Preeti has deposed that on 05.02.2013, she had gone to her school at 7.30 a.m. She returned home at 2.00 p.m. and enquired about Jyoti from the appellant. Appellant told her that two boys and one girl had come to meet Jyoti. She had tried to make a call to her sister. Joyti had died on account of strangulation. Her hands and feet had been tied. She suspected that her sister had been murdered by Rajni Dua, Rajeev Dubey and appellant Bhola Jadav. They could not find chappal and mobile phone of her sister. Appellant was working as a servant under her grandfather. 22. PW-4 Makhhan Singh deposed that deceased was his niece. He could not tell as to who had murdered her, but he suspected that appellant had committed her murder. 23. PW-5 Palvinder Singh also deposed that he suspected that appellant had committed the murder of Jyoti as they were alone in the house at the time of incident. 22. PW-4 Makhhan Singh deposed that deceased was his niece. He could not tell as to who had murdered her, but he suspected that appellant had committed her murder. 23. PW-5 Palvinder Singh also deposed that he suspected that appellant had committed the murder of Jyoti as they were alone in the house at the time of incident. He had not made any enquiry from the appellant. 24. PW-6 Dharmendra Singh did not support the prosecution story and said that he did not suspect anyone with regard to the murder of Jyoti. 25. PW-7 Rajni Rani deposed that on 05.02.2013, Jyoti, her granddaughter had been murdered. Appellant was their servant and used to look after her ailing husband. Priya was her daughterin-law. When she (witness) had left the house, Priya, Jyoti, appellant and her husband were present at home. She returned home at 12 o'clock and enquired about Jyoti from the appellant. Appellant said that Jyoti had gone to her friend's house. At about 2.00 p.m., Preeti returned home and she (witness) enquired from her about Jyoti. Preeti told her that Jyoti must have gone to the house of Sangeeta. At about 5.00 p.m., Priya came home and they all started searching for Jyoti, but could not find her. Then, Priya, Preeti and appellant Bhola Jadav went upstairs and found that Jyoti was lying in the guest room and her hands and feet had been tied with a rope. Jyoti was brought downstairs and they found that Jyoti had died. She suspected that Jyoti had been murdered by appellant-Bhola Jadav because he was the only person present in the house and her husband was not in a position to move about. 26. PW-8 Kundan Lal did not support the prosecution case, during trial. 27. PW-9 Rajni Bala deposed that on 05.02.2013 at about 9.25 p.m., she had received a phone call from an unknown number. She was told by younger sister of Priya that Jyoti was missing since morning and could not be located. Then again, she received another call after 10 minutes and she was called to the house of Jyoti. When she reached the spot, she saw that Jyoti was lying in the main hall and had been covered with a quilt. When she enquired as to what had happened to Jyoti, she was told that she had been found dead in the room on the upper floor. When she reached the spot, she saw that Jyoti was lying in the main hall and had been covered with a quilt. When she enquired as to what had happened to Jyoti, she was told that she had been found dead in the room on the upper floor. Priya suspected that Bhola Jadav had murdered Jyoti. 28. PW-10 Mumtaz Ahmad did not support the prosecution case, during trial. In his cross-examination, he deposed that on the day of incident at about 10.30 to 11.30 a.m., Rajni Rani and Rajeev Dubey were present in the house and had left the house in a hurry and both of them were sweating. 29. PW-12 Veer Bahadur Meena and PW-15 Satyaprakash Rana did not support the prosecution case, during trial. 30. The other witnesses have deposed with regard to the investigation conducted in the case. 31. PW-24 Mohar Singh is the Investigating Officer and has deposed with regard to the investigation conducted by him. In his cross-examination, he deposed that during investigation, he had searched the house of Rajeev Dubey and some weapons were recovered. He also stated that the deceased and her mother were using mobile phone bearing No.9350166685. 32. Thus, in the present case, complainant herself, during trial has deposed that the appellant had not murdered her daughter. So far as sister of the deceased is concerned, she has raised suspicion over the appellant qua the murder of her sister. 33. PW-7 Rajni Rani, grandmohter of the deceased, PW-4 Makhhan Singh and PW-5 Palvinder Singh have raised suspicion against the appellant. 34. It is a settled proposition of law that suspicion, howsoever strong cannot take place of proof. 35. PW-10 Mumtaz Ahmad is the tenant in the house, where the murder had taken place. The said witness in his cross-examination deposed that at about 10.30 to 11.30 a.m., he had seen Rajni Rani and Rajeev Dubey in the house and they had left the house in a hurry and both of them were sweating. PW-7 Rajni Rani has also admitted in her cross-examination that on 05.02.2013, Rajeev Dubey had visited their house. Thus, it cannot be said that on the day of incident, appellant was alone in the house. 36. Since, the present case rests on circumstantial evidence, motive gains significance. Prosecution had projected that appellant wanted to rape Jyoti and due to this reason, he had committed her murder. Thus, it cannot be said that on the day of incident, appellant was alone in the house. 36. Since, the present case rests on circumstantial evidence, motive gains significance. Prosecution had projected that appellant wanted to rape Jyoti and due to this reason, he had committed her murder. However, the prosecution had failed to establish that the appellant had attempted to commit the offence of rape and was acquitted by the trial court qua charge framed against him under Section 376/511 IPC. Hence, appellant had no motive to commit the murder of Jyoti. 37. During investigation, recovery of mobile phone belonging to the deceased was effected at the instance of the appellant on 14.02.2013. 38. As per PW-7, Rajni Rani appellant was taken by the police on 05.02.2013 itself. 39. PW-6 Dharmendra Singh attesting witness to Exhibit-P-11, memo of recovery of mobile phone and chappal of the deceased, has not supported the prosecution case, during trial. 40. PW-14 Tundaram, police official who is an attesting witness to Exhibit-P-11 has deposed in his cross-examination that chappal and mobile phone were recovered from separate places. Mobile phone and chappal were recovered from the first floor and were lying under the table. Mobile phone was in broken condition and its battery was lying out of the phone. The door of the room was open. On the other hand, as per Exhibit-P-10, the mobile phone and chappal of the deceased were recovered, from the box lying in the room of the appellant, in the basement. Hence, the recovery of the mobile phone and chappal of the deceased at the behest of the appellant is rendered doubtful. 41. Thus, in the present case, it can be said that the prosecution story rests on suspicion. Moreover, complainant as well as the tenant, who were present in the house at the time of incident have not supported the prosecution case against the appellant. 42. It is a settled proposition of law that the prosecution is required to prove its case beyond the shadow of reasonable doubt by leading convincing and cogent evidence against an accused. An accused is presumed to be innocent till proved guilty. However, in the present case, prosecution has failed to complete the chain of circumstances leading to the guilt of the appellant and negate the possibility of his innocence. An accused is presumed to be innocent till proved guilty. However, in the present case, prosecution has failed to complete the chain of circumstances leading to the guilt of the appellant and negate the possibility of his innocence. In the present case, the possibility that somebody else might have committed the murder of Jyoti cannot be ruled out. Hence, appellant is liable to be acquitted by giving him benefit of doubt. 43. Accordingly, appeal is allowed. Appellant is acquitted of the charge framed against him under Section 302 IPC. Consequently, impugned judgment/order passed by the trial court dated 15.01.2019 are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other criminal case. 44. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Bhola Jadav S/o Shri Jagannath Jadav is directed to furnish a personal bond in the sum of Rs.25,000/-, 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 appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.