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2019 DIGILAW 2699 (RAJ)

Shiv Kumar v. State of Rajasthan

2019-10-17

INDERJEET SINGH, SABINA

body2019
JUDGMENT : Sabina, J. 1. Appellant has filed this appeal challenging the judgment/order dated 03.12.2008 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'). 2. Prosecution case was set in motion on the basis of the report Exhibit-P-24 lodged by complainant-Jogendra Singh. On the basis of report Exhibit-P-24, formal FIR Exhibit-P-23 bearing No. 238 dated 29.05.2006 was registered at Police Station Deeg, District Bharatpur for offence punishable u/Sec. 460 IPC. 3. Prosecution story, in brief, as per the FIR is that Membatti, wife of the complainant was residing with her children at Deeg. Complainant was working as a Guard in the bank at Kama. On 29.05.2006 at about 8.00 a.m., complainant received an information at Kama that his wife and daughter Varsha had been murdered by his nephew Shiv Kumar. Shiv Kumar was accompanied by his friends. In this regard, complainant was making inquiry. When the complainant reached Deeg, he found that his wife was lying dead on the roof of the house and his daughter was admitted in the hospital. Wife and daughter of the complainant had suffered injuries with some heavy weapon. All the belongings in the room were lying in a scattered condition. Rupees Eighty Thousand lying in his room could not be traced by the accused. Earrings of his wife were missing. Some other articles from the house had also been stolen. 4. After completion of investigation and necessary formalities, challan was presented against the appellant. 5. Charges were framed against the appellant by the trial court under Sections 302 and 460 IPC. 6. Appellant did not plead guilty to the charges framed against him and claimed trial. 7. In order to prove its case, prosecution examined 16 witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case due to enmity. He was not present at the spot, but was present in his village. He was not residing in the house where the incident had occurred. 8. Trial Court vide the impugned judgment/order dated 03.12.2008 ordered the conviction and sentence of the appellant under Section 302 IPC. Appellant was acquitted of the charge framed against him under Section 460 IPC. He was not present at the spot, but was present in his village. He was not residing in the house where the incident had occurred. 8. Trial Court vide the impugned judgment/order dated 03.12.2008 ordered the conviction and sentence of the appellant under Section 302 IPC. Appellant was acquitted of the charge framed against him under Section 460 IPC. Hence, the present appeal by the appellant. 9. Appellant examined two witnesses in his defence. 10. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. No reliance could be placed on the statements of the witnesses examined by the prosecution to establish the circumstances of last seen and extra judicial confession. Appellant has been involved in this case on the basis of suspicion and recovery effected from him, during investigation, had been falsely foisted on him. 11. Learned State counsel has opposed the appeal. 12. Present case relates to murder of Membatti and Varsha. 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." 14. It has also been held by the Hon'ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh and Ors. ( AIR 1990 SC 79 ), as under:- "10. ........ This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir vs. State of Maharashtra)." 15. Complainant while appearing in the witness box as PW-15 has deposed as per the contents of the FIR. Complainant has further deposed that one earring and necklace were recovered at the instance of the appellant and were taken in possession vide memo Exhibit-P-11 and he had identified the said articles as they belonged to his wife. Complainant while appearing in the witness box as PW-15 has deposed as per the contents of the FIR. Complainant has further deposed that one earring and necklace were recovered at the instance of the appellant and were taken in possession vide memo Exhibit-P-11 and he had identified the said articles as they belonged to his wife. PW-3 Deviram deposed that on 29.05.2006, he had received the information on telephone that dead body of Membatti as well as Varsha were lying on the roof of their house. He immediately reached village Deeg and saw the dead body of Membatti lying on the roof. Deceased had received an injury on her temple. Varsha had been taken to the hospital. Kushal (son of Jogendra Singh) met him while crying and told him that his mother and sister had been inflicted injuries by Shiv Kumar. Kushal further stated that he had hidden under the bed out of fear. Earrings of Membatti were missing. Some of the jewellery articles lying in the box were also missing. Rupees Eighty Thousand lying in the house, which had been received by Jogendra Singh on account of sale of crop were found lying in the house. He was informed by Chhinga that Shiv Kumar had shown the earrings and other silver articles to him and had informed him that he had murdered his aunt and her daughter. PW-1 Manoj deposed that he was running a General Store and knew Deviram. In the said house, wife and children of Jogendra Singh were residing. Shiv Kumar was also residing with them. On 28.05.2006 at about 9.00 p.m., Shiv Kumar had gone towards the house after taking four packets of Jayanti Gutkha. On 29th, he came to know that wife and daughter of Jogendra Singh had been murdered and Shiv Kumar was found missing from the house. PW-2 Radheshyam has deposed that on 29.05.2006, he had seen the dead body of the wife of Jogendra Singh lying on the roof. On another cot, daughter of Jogendra Singh was lying in an injured condition. He had informed Deviram on phone. He did not see Shiv Kumar in the morning after the incident on 29.05.2006. PW-8 Chhanga deposed that an year back, accused Shiv Kumar present in the court, had met him and told him that he had murdered his aunt. At that time, he was having earrings and some silver articles with him. He had informed Deviram on phone. He did not see Shiv Kumar in the morning after the incident on 29.05.2006. PW-8 Chhanga deposed that an year back, accused Shiv Kumar present in the court, had met him and told him that he had murdered his aunt. At that time, he was having earrings and some silver articles with him. He further told him that he had murdered his aunt and her daughter and thereafter he fled away. PW-10 Doctor Sushil Sharma deposed that on 29.05.2006, he had conducted post-mortem examination on the dead body of deceased Membatti. He proved the post-mortem examination report of deceased Membatti as Exhibit-P-17. He further deposed that he had also conducted post-mortem examination on the dead body of deceased Varsha. He proved the post-mortem examination report of deceased Varsha as Exhibit-P-18. 16. A perusal of Exhibit-P-17 reveals that the cause of death of deceased Membatti, was coma as a result of injuries to her skull and brain which were antemortem in nature. 17. As per the post-mortem examination report Exhibit-P-17, following injuries were found on the person of deceased Membatti:- "1. Loss of Pinna size 2 X 3 c.m. 2. Lacerated wound 10 X 8 c.m X cavity deep left tempo-parietal area. 3. Lacerated wound 3 X 2 X muscles deep over left eyebrow. 4. Black eye right." 18. A perusal of Exhibit-P-18 reveals that the cause of death of deceased Varsha was coma as a result of injuries to her skull and brain which were antemortem in nature. 19. As per the post-mortem examination report Exhibit-P-18, following injuries were found on the person of deceased Varsha:- "1. Lacerated wound 3 X 2 cm X bone deep over right parietal area. 2. Diffuse swelling over right parieto-temporal area. 20. Police officials examined during trial have deposed with regard to the investigation conducted by them. 21. Appellant appeared in the witness box as DW-1 and Khubchand was examined as DW-2. The said witnesses have deposed that the date of birth of the appellant was 10.05.1989. However, the application moved by the appellant, during trial for declaring him juvenile, was dismissed by the trial court vide order dated 07.11.2008. 22. Thus, in the present case, the circumstances brought on record by the prosecution are that the appellant was residing in the house of the complainant in village Deeg alongwith the wife and children of the complainant. 23. 22. Thus, in the present case, the circumstances brought on record by the prosecution are that the appellant was residing in the house of the complainant in village Deeg alongwith the wife and children of the complainant. 23. As per PW-1 and PW-2, appellant was seen a day prior to the incident in the area where the incident had occurred. Appellant was missing from the house on the day of incident. 24. PW-3 Deviram is none other than the grandfather of the deceased and the complainant is none other than the younger brother of the father of the appellant. Thus, PW-3 Deviram and PW-15 Jogendra Singh are closely related to the appellant. Both PW-3 and PW-15 have deposed that appellant was residing in the house at village Deeg alongwith Membatti and her children. Both the said witnesses have deposed that the crime had been committed by the appellant. Earrings of deceased Membatti were found missing when they saw her dead body. As per the postmortem report Exhibit-P-17, there was loss of pinna size 2 x 3 cm of deceased, which leads to the inference that the earring worn by deceased Membatti had been pulled off and as a result, there was loss of pinna. 25. Exhibit-P-11 is the memo of recovery of articles effected from the appellant on the basis of his disclosure statement suffered under Section 27 of Indian Evidence Act., 1872 Exhibit-P-22. A perusal of Exhibit-P-11 reveals that earring and necklace recovered at the instance of the appellant were duly identified by the complainant as belonging to his wife. 26. Plea of alibi taken by the appellant in his statement under Section 313 Cr. P.C. is not established on record by the appellant by leading any corroborative in this regard. Hence, the said plea remains unestablished. 27. Thus, from the circumstances discussed above, it can be said that the prosecution had been successful in completing the chain of circumstances leading towards the guilt of the appellant and they negate the possibility of his innocence. Since, the prosecution had been successful in establishing its case against the appellant beyond the shadow of reasonable doubt, learned Trial Court had rightly ordered conviction and sentence of the appellant under Section 302 IPC. No ground for interference is made out. Dismissed.