RAJU @ RAJENDRA PRASAD versus STATE OF RAJASTHAN

RAJU @ RAJENDRA PRASAD

STATE OF RAJASTHAN

(Criminal Appeal No. 1559 of 2022)

SEPTEMBER 19, 2022

[M. R. SHAH AND KRISHNA MURARI, JJ.]

Penal Code – ss.302, 34 – Murder – Circumstantial evidence– As per FIR, the appellants-accused (wife of the deceased and co-accused) had illicit relations – It was further stated that on accountof disputes, the accused started residing in her paternal house –That the deceased went to his in-law’s house to bring her and thechildren back, however, on the next day his body was found hangingfrom tree – Appellants convicted u/s.302 r/w s.34 – On appeal, held:Case of the prosecution is based on circumstantial evidence – Thereis no direct evidence that the appellants killed or committed themurder of the deceased – In case of circumstantial evidence, thecircumstances, taken cumulatively, should form chain so completethat there is no escape from the conclusion that within all humanprobability the crime was committed by the accused and none else –Circumstantial evidence in order to sustain conviction must becomplete and incapable of explanation of any other hypothesis thanthat of the guilt of the accused – Such evidence should not only beconsistent with the guilt of the accused but should be inconsistentwith his innocence – There is no evidence that the accused werelast seen together with the deceased – Prosecution failed to provethe guilt and complete chain of events leading to the only conclusionthat the appellants alone committed murder and/or killed thedeceased – Order of conviction passed by Trial Court and HighCourt set aside – Accused acquitted – Evidence.

Allowing the appeals, the Court

HELD: The case rests on the circumstantial evidence.There is no direct evidence by which it can be said that theappellants killed or committed the murder of the deceased. Thereis no direct evidence recorded indicating involvement of theappellants in the crime; the case of the prosecution is based onthe circumstantial evidence. In case of circumstantial evidence,

CDEF

Athe circumstances, taken cumulatively, should form chain socomplete that there is no escape from the conclusion that withinall human probability the crime was committed by the accusedand none else and the circumstantial evidence in order to sustainconviction must be complete and incapable of explanation of anyother hypothesis than that of the guilt of the accused and suchBevidence should not only be consistent with the guilt of the accusedbut should be inconsistent with his innocence. On consideringthe deposition of PW-6 (daughter of the deceased), who can besaid to be the star witness and on whose deposition the appellants- accused are held guilty for the offence punishable under SectionC302/34 IPC, even it cannot be said that the prosecution hasestablished and proved that the accused were last seen togetherwith the deceased. In the examination-in-chief, PW-6 has statedthat after some quarrel, the grandmother took the deceased tothe room where the deceased went to sleep. That thereafter shealso gone to sleep and when in the morning she woke up, sheDcame to know that her papa was found hanging on the tree. In thecross-examination, she has specifically stated that she has notseen anybody beating her father. Thus, there is no evidence thatthe accused were seen last together with the deceased. There isno evidence what happened after the deceased went to the roomEand had gone to sleep. Under the circumstances, the prosecutionhas failed to prove the guilt and complete chain of events, whichmay lead to the only conclusion that the appellants - accused alonecommitted murder and/or killed the deceased. The Trial Courtas well as the High Court have committed very serious error inconvicting the appellants – accused for the offence under SectionF302/34 IPC based on such circumstantial evidence. The judgmentand order of conviction passed by the Trial Court as well as theHigh Court convicting the appellants – original accused for theoffence punishable under Section 302/34 IPC are quashed andset aside and the accused are acquitted for the offence for whichGthey are convicted. [Paras 7.1, 7.7 and 8][246-F-H; 249-H; 250-A-E]

Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9SCR 1039; G. Parshwanath v. State of Karnataka,(2010) 8 SCC 593 : [2010] 10 SCR 377 – relied on.

Mohd. Younus Ali Tarafdar v. State of West Bengal,(2020) 3 SCC 747 : 2020 (2) JT 456; Anwar Ali andAnr. v. State of Himachal Pradesh, (2020) 10 SCC 166: [2020] 9 SCR 878 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1559 of 2022.

From the Judgment and Order dated 11.07.2019 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Criminal Appeal(DB) No. 106 of 2018.

With

Criminal Appeal No. 1560 of 2022

Ms. Sangeeta Kumar, Ms. Chitrangda Rastravara, ManvendraSingh, Dashrath Singh, Abhijeet Singh, Ms. Gunjan Negi, Shiv AutarSingh Sengar, Aditya Pratap Singh Chauhan, Aishwarya Mishra, Gp.Capt. Karan Singh Bhati, Advs. for the Appellant.

Ms. Gurkirat Kaur, Ms. Asiya, Milind Kumar, Advs. for theRespondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Rajasthan at Jaipurin D.B. Criminal Appeal Nos. 106 of 2018 and 107 of 2018 by which theHigh Court has dismissed the said appeals preferred by the appellantsherein – original accused convicting them for the offence under Section302 IPC, the original accused Raju @ Rajendra Prasad and Smt. SumanDevi have preferred the present appeals.

2. The original complainant Prakash – brother of the deceasedlodged complaint/F.I.R. against the accused persons for having killedhis brother Narendra @ Goliya. It was stated in the complaint/F.I.R.

Athat his brother Narendra was married to his sister-in-law Suman Devi.There were some differences between his brother and his wife. It wasalleged that accused Suman Devi was having illicit relations with the co-accused – Raju @ Rajendra Prasad. That because of the dispute anddifferences, accused Suman Devi had started residing in her paternalhouse. On 26.09.2016, his brother – deceased went to his in-law’s houseBto bring back his wife and children. However, on the next day in themorning, he came to know that his brother had committed suicide andhis body was found hanging from tree. That it was alleged that hisbrother had been murdered by Suman Devi, father-in-law Moti Ram,mother-in-law Lakhpati Devi, brother-in-law Vikram and Raju @CRajendra Prasad in conspiracy with each other. Thereafter, on completionof the investigation, charge sheet was filed against the appellants herein.The charge was framed against the appellants – accused for the offenceunder Section 302 IPC or in the alternative under Section 302/34 IPC.The appellants – accused did not plead guilty and therefore they cameto be tried by the learned Trial Court for the aforesaid offence.D

2.1 To bring home the charge against the accused, the prosecutionexamined as many as 15 witnesses including PW-6, Shiwani, daughterof the deceased and the accused Suman Devi and PW-7, Sunita, sisterof Suman Devi. That after close of the prosecution evidences, furtherstatement of the accused under Section 313 Cr.P.C. were recorded.EThat on appreciation of evidence and relying upon the depositions ofPW-6, Shiwani, daughter of the deceased and the accused Suman Deviand PW-7, Sunita, sister of Suman Devi by judgment and order dated22.01.2018, the learned Trial Court convicted the appellants - accusedfor the offence punishable under Section 302 read with Section 34 IPCFand sentenced them to undergo imprisonment for life and fine ofRs. 20,000/-.

2.2 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the learned Trial Court, the accusedpreferred the present appeals before the High Court. By the impugnedGcommon judgment and order, the High Court has dismissed the saidappeals and has confirmed the judgment and order of conviction andsentence passed by the learned Trial Court convicting the accused forthe offence punishable under Section 302 read with Section 34 IPC.

2.3 Feeling aggrieved and dissatisfied with the impugned judgmentHand order passed by the High Court dismissing the appeals and confirming

the judgment and order of conviction, the original accused have preferredthe present appeals.

3. Ms. Sangeetha Kumar and Ms. Chitrangda Rastravara, learnedcounsel have appeared on behalf of the respective appellants andMs. Gurkirat Kaur, learned counsel has appeared on behalf of therespondent – State of Rajasthan.

4. Learned counsel appearing on behalf of the respective appellants- accused have vehemently submitted that in the facts and circumstancesof the case, both the learned Trial Court as well as the High Court havecommitted very serious error in holding the appellants guilty for theoffence under Section 302/34 IPC.

4.1 It is vehemently submitted by the learned counsel appearingon behalf of the appellants – original accused that the case rests oncircumstantial evidence. There is no direct evidence at all. It is submittedthat there is not an iota of evidence against the appellants by which itcan be said that the appellants killed and/or committed the murder of thedeceased.

4.2 It is vehemently submitted by the learned counsel appearingon behalf of the appellants – original accused that as such PW-6, Shiwani,daughter of the deceased and the accused Suman Devi can be said tobe the ‘star witness’, who, in her deposition, has categorically statedthat she has not seen the appellants having killed her father. It is submittedthat even from the deposition of PW-6, the prosecution has not establishedand proved that the appellants - accused herein were last seen togetherwith the deceased. It is submitted that the prosecution has failed toestablish and prove the complete chain of events. It is submitted thattherefore the conviction of the appellants – accused for the offenceunder Section 302/34 IPC is unsustainable.

4.3 Learned counsel appearing on behalf of the accused havevehemently relied upon the decision of this Court in the case of Mohd.Younus Ali Tarafdar Vs. State of West Bengal, (2020) 3 SCC 747as well as Anwar Ali and Anr. Vs. State of Himachal Pradesh, (2020)10 SCC 166 in support of their submissions that as the circumstancesrelied upon by the prosecution to prove the guilt of the accused is notcomplete and the said circumstances are not leading to the conclusionthat in all human probability, murder must have been committed by theappellants- accused and, therefore, the appellants ought not to have beenconvicted on the basis of such circumstantial evidence.

A5. Present appeals are vehemently opposed by the learned counselappearing on behalf of the State.

5.1 It is submitted that in the present case, the prosecution hasestablished and proved that there were differences and disputes betweenSuman Devi and the deceased. It is submitted that by leading cogentBevidence and examining the daughter of the deceased and the accusedSuman Devi and by examining other witnesses, the prosecution hasestablished and proved that on the earlier day/night, there were quarrelsand that the accused Raju and others gave threats to the deceased. It issubmitted that therefore in the facts and circumstances of the case,when the prosecution has established the motive and the circumstancesCwhich led to the conclusion that the accused committed the murder ofthe deceased, both the learned Trial Court as well as the High Courthave rightly convicted the accused for the offence under Section 302/34IPC. It is submitted that the medical evidence – postmortem report provesthat the deceased was murdered/killed.

D5.2 Making above submissions, it is prayed to dismiss the presentappeals.

6. Heard the learned counsel for the respective parties at length.

7. We have gone through the judgment and order passed by theElearned Trial Court as well as the impugned judgment and order passedby the High Court. We have also re-appreciated the entire evidence onrecord.

7.1 At the outset, it is required to be noted that the case rests onthe circumstantial evidence. There is no direct evidence by which it canFbe said that the appellants killed or committed the murder of thedeceased. There is no direct evidence recorded indicating involvementof the appellants in the crime and as observed hereinabove, the case ofthe prosecution is based on the circumstantial evidence. As held by thisCourt in catena of decisions, in case of circumstantial evidence, thecircumstances, taken cumulatively, should form chain so complete thatGthere is no escape from the conclusion that within all human probabilitythe crime was committed by the accused and none else and thecircumstantial evidence in order to sustain conviction must be completeand incapable of explanation of any other hypothesis than that of theguilt of the accused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistent with his innocence.H

7.2 In the case of Babu v. State of Kerala, (2010) 9 SCC 189,it is observed and held in paras 22 to 24 as under :

“22. In Krishnan v. State [(2008) 15 SCC 430], this Court afterconsidering large number of its earlier judgments observed asfollows : (SCC p. 435, para 15)

‘15. … This Court in series of decisions has consistentlyheld that when case rests upon circumstantial evidence, suchevidence must satisfy the following tests:

(i) the circumstances from which an inference of guiltis sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendencyunerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should forma chain so complete that there is no escape from the conclusionthat within all human probability the crime was committed bythe accused and none else; and

(iv) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanation ofany other hypothesis than that of the guilt of the accused andsuch evidence should not only be consistent with the guilt ofthe accused but should be inconsistent with his innocence.(See Gambhir v. State of Maharashtra [(1982) 2 SCC 351].)’

23. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984)4 SCC 116] while dealing with circumstantial evidence, it has been heldthat the onus was on the prosecution to prove that the chain is completeand the infirmity or lacuna in prosecution cannot be cured by falsedefence or plea. The conditions precedent before conviction could bebased on circumstantial evidence, must be fully established. They are :(SCC p. 185, para 153)

(i) the circumstances from which the conclusion of guilt isto be drawn should be fully established. The circumstancesconcerned “must” or “should” and not “may be” established;

(ii) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis except that theaccused is guilty;

A(iii) the circumstances should be of conclusive nature andtendency;

(iv) they should exclude every possible hypothesis exceptthe one to be proved; and

(v) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanprobability the act must have been done by the accused.

similar view has been reiterated by this Court in State ofU.P. v. Satish [(2005) 3 SCC 114] and Pawan v. State ofCUttaranchal [(2009) 15 SCC 259].

24. In Subramaniam v. State of T.N. [(2009) 14 SCC 415], whileconsidering the case of dowry death, this Court observed that the fact ofliving together is strong circumstance but that by alone in absence ofany evidence of violence on the deceased cannot be held to be conclusiveDproof, and there must be some evidence to arrive at conclusion thatthe husband and husband alone was responsible therefor. The evidenceproduced by the prosecution should not be of such nature that maymake the conviction of the appellant unsustainable. (See RameshBhai v. State of Rajasthan [(2009) 12 SCC 603]).”

(emphasis supplied)”

7.3 In the case of G. Parshwanath Vs. State of Karnataka,(2010) 8 SCC 593 in paras 23 and 24, it is observed and held as under:

“23. In cases where evidence is of circumstantial nature, thecircumstances from which the conclusion of guilt is to be drawnFshould, in the first instance, be fully established. Each fact soughtto be relied upon must be proved individually. However, in applyingthis principle distinction must be made between facts calledprimary or basic on the one hand and inference of facts to bedrawn from them on the other. In regard to proof of primary facts,Gthe court has to judge the evidence and decide whether thatevidence proves particular fact and if that fact is proved, thequestion whether that fact leads to an inference of guilt of theaccused person should be considered. In dealing with this aspectof the problem, the doctrine of benefit of doubt applies. Althoughthere should not be any missing links in the case, yet it is not

essential that each of the links must appear on the surface of theevidence adduced and some of these links may have to be inferredfrom the proved facts. In drawing these inferences, the courtmust have regard to the common course of natural events and tohuman conduct and their relations to the facts of the particularcase. The court thereafter has to consider the effect of provedfacts.

24. In deciding the sufficiency of the circumstantial evidence forthe purpose of conviction, the court has to consider the totalcumulative effect of all the proved facts, each one of whichreinforces the conclusion of guilt and if the combined effect of allthese facts taken together is conclusive in establishing the guilt ofthe accused, the conviction would be justified even though it maybe that one or more of these facts by itself or themselves is/arenot decisive. The facts established should be consistent only withthe hypothesis of the guilt of the accused and should exclude everyhypothesis except the one sought to be proved. But this does notmean that before the prosecution can succeed in case restingupon circumstantial evidence alone, it must exclude each and everyhypothesis suggested by the accused, howsoever, extravagant andfanciful it might be. There must be chain of evidence so completeas not to leave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in all humanprobability the act must have been done by the accused, wherevarious links in chain are in themselves complete, then the falseplea or false defence may be called into aid only to lend assuranceto the court.”

7.4 similar view is taken by this Court in the subsequent decisionsin the case of Mohd. Younus Ali Tarafdar (supra) and Anwar Aliand Anr. (supra).

7.5 Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, it is to be considered, whetherin the facts and circumstances of the case, the High Court and the TrialCourt are justified in convicting the accused for the offence punishableunder Section 302/34 of the IPC ?

7.6 On considering the deposition of PW-6, who can be said to bethe star witness and on whose deposition the appellants - accused areheld guilty for the offence punishable under Section 302/34 IPC, even it

Acannot be said that the prosecution has established and proved that theaccused were last seen together with the deceased. In the examination-in-chief, PW-6 has stated that after some quarrel, the grandmother tookthe deceased to the room where the deceased went to sleep. Thatthereafter she also gone to sleep and when in the morning she woke up,she came to know that her papa was found hanging on the tree. In theBcross-examination, she has specifically stated that she has not seenanybody beating her father. Thus, there is no evidence that the accusedwere seen last together with the deceased. There is no evidence whathappened after the deceased went to the room and had gone to sleep.

7.7 Under the circumstances, the prosecution has failed to proveCthe guilt and complete chain of events, which may lead to the onlyconclusion that the appellants - accused alone committed murder and/orkilled the deceased. Under the circumstances and applying the law laiddown by this Court in the aforesaid decisions on circumstantial evidence,we are of the opinion that the Trial Court as well as the High Court haveDcommitted very serious error in convicting the appellants – accusedfor the offence under Section 302/34 IPC based on such circumstantialevidence. The conviction of the appellants - accused for the offenceunder Section 302/34 IPC is not sustainable.

8. In view of the above and for the reasons stated above, both theEappeals succeed. The judgment and order of conviction passed by thelearned Trial Court as well as the High Court convicting the appellants –original accused for the offence punishable under Section 302/34 IPCare hereby quashed and set aside and the accused are acquitted for theoffence for which they are convicted. The appellants accused bereleased forthwith, if not required in any other case.F

Present appeals are accordingly allowed.