SHANTI DEVI W/O SHANKER LAL Vs STATE OF RAJASTHAN
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-000954-000954 / 2005
Diary number: 12442 / 2005
Advocates: RAVINDRA BANA Vs
MILIND KUMAR
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 954 OF 2005
Shanti Devi ….Appellant
VERSUS
State of Rajasthan .…Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. The first accused is the appellant. The challenge is to the
judgment of the Division Bench of the High Court of
Rajasthan at Jodhpur dated 16.02.2005 passed in Criminal
Appeal No.517 of 2002. Altogether four accused were
involved in the crime. The Trial Court convicted the
appellant for offences under Sections 302 and 201 of IPC
while the other three accused were found guilty for offence
under Section 201 of IPC alone. The appellant was imposed
with the punishment of sentence for life for the offence
under Section 302 of IPC apart from a fine of Rs.100/- and
in default for further one month rigorous imprisonment, for
the offence under Section 201 of IPC appellant was imposed
with the rigorous imprisonment for five years along with
the fine of Rs.100/- and in default of the payment of fine
to undergo one more month rigorous imprisonment. The other
three accused were awarded rigorous imprisonment for five
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years each and a fine of Rs.100/- and in default of the
payment of fine to undergo further period of rigorous
imprisonment for one month. The sentences awarded against
the appellants were directed to run concurrently. The
Division Bench while upholding the conviction and sentence
imposed on the appellant for the offence under Section 302
of IPC modified the punishment so far as it related to be
one under Section 201 of IPC to the effect that the period
already undergone would be sufficient in the interest of
justice. Similarly, in respect of other three accused also
while confirming the conviction against them under Section
201 of IPC, the substantive sentence was modified to be one
which was already undergone by them. Aggrieved against the
same appellant preferred this appeal.
2. Shorn of unnecessary details, the case of the prosecution
as projected before the Sessions Trial was that the father
of P.W.2 went to the house of the appellant on 22.08.1997,
that he had a sum of Rs.300/- with him on that day, that he
frequently used to visit the house of the appellant and
that appellant used to call him as her brother. According
to P.W.2, after his father, the deceased Om Prakash went to
the house of the appellant on 22.08.1997 he did not return
back. P.W.2 went to the house of the appellant thrice and
the appellant informed him that his father, the deceased,
was entangled in a case of Charas and that she is taking
every effort to get him released. Subsequently, on
01.09.1997 the Postman delivered a letter in his house
which was purportedly in the hand-writing of Accused No.3
(A-3), the son of the appellant, and that on that very day
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appellant visited the residence of P.W.2 and asked for a
sum of Rs.5000/- stating that money was required in order
to enable her to get his father released from the criminal
complaint. Believing her words P.W.2 stated to have
borrowed a sum of Rs.5000/- from P.W.13 Tersem Ram and gave
it to her.
3. In the above stated background P.W.2 lodged a complaint
with Gharsana Police Station which was registered as F.I.R.
No.535/1997 under Exhibit P-2. P.W.20, Investigating
Officer, arrested the appellant and three accused persons,
namely, Maniram, Shankar Lal and Jagdish. Based on the
admissible portion of the said statement of the appellant
the body of the deceased Om Prakash was recovered from a
place near her house. The body was found buried in that
place. Postmortem was conducted on the dead body. Two
photographs were also seized during the course of
investigation. The hand-writing of A-3 Jagdish was
compared. Based on the final report, charges were framed
against the appellant and other accused for offences under
Sections 302 of IPC read with Section 302/120-B, 364,
364/120-B and 201 of IPC. The accused having denied the
charges, case went into trial and 24 witnesses were
examined on the side of the prosecution apart from 50
documents marked and 14 articles were produced. On the side
of the defence one witness was examined and eight documents
were marked.
4. The Trial Court after detailed consideration of both oral
and documentary evidence as well as after noting the chain
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of circumstances alleged against the appellant and other
accused, held that the offences under Sections 302 read
with Section 201 of IPC as against the appellant and the
offence under Section 201 of IPC as against the rest of the
accused were conclusively proved. Consequently, the
sentences as described in the earlier part of the judgment
were imposed. The appellants preferred an appeal before the
High Court of Rajasthan at Jodhpur in which the impugned
judgment came to be delivered as against which the
appellant has come forward with this appeal.
5. We have heard Mr. Ravindra Bana, learned counsel for the
appellant and Dr. Manish Singhvi, learned Additional
Advocate General for the respondent-State. Mr. Bana in his
submissions contended that there was inordinate delay of 52
days in the registration of FIR and, therefore, the story
of the prosecution was unbelievable. Learned counsel then
contended that the postmortem report has not mentioned the
cause of death and, therefore, death cannot be held to be
one of murder. By referring to the alleged extra-judicial
confession stated to have been made by the appellant,
learned counsel contended that the appellant stated to have
used a kassi but the postmortem report did not reveal any
injury on the body of the deceased and that no blood was
also found on the kassi. It was also contended that the
body of the deceased was exhumed only from a nearby place
and not from the house of the appellant. The learned
counsel, therefore, contended that in a case of
circumstantial evidence, having regard to the above
infirmities existing in the case of the prosecution, the
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conviction and sentence imposed on the appellant should be
set-aside.
6. As against the above submissions, Dr. Singhvi, learned
Additional Advocate General by referring to Sections 24, 30
and 133 of the Evidence Act contented that so far as the
extra-judicial confession is concerned, so long as the said
piece of material was corroborated with material evidence
and it was voluntary and truthful it can be relied upon. As
far as the corroboration was concerned, learned Additional
Advocate General referred to the recovery of the dead body
based on the disclosure statement of the appellant which is
fully governed by Section 27 of the Evidence Act. He also
contended that the version of P.W.24, S.D.M was that she
was present throughout the process of exhuming the body of
the deceased along with two independent witnesses, namely,
P.Ws.6 and 11 and also that the body was exhumed from a
place adjacent to the house of the appellant which piece of
evidence was clinching as against the accused.
7. The learned Additional Advocate General also pointed out
that on the body of the deceased the articles which were
worn by him such as wrist watch, shoes etc., were recovered
and those articles were identified by P.W.2, the son of the
deceased. He also contended that though no blood was found
on the kassi, the injury no.2 to a great extent would
confirm the use of kassi in the performance of the crime by
the appellant. Apart from the above, learned counsel
contended that the conduct of the appellant after
01.09.1997 and her dealing with P.W.2 as well as the letter
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written by P.W.7 were all corroborative piece of evidence
strongly supporting the chain of circumstances in
establishing the offence alleged against the appellant.
Though the extra-judicial confession made by the appellant
was relied upon by the Courts below, learned Additional
Advocate General, however, submitted that the said part of
the evidence was referred to only to confirm the motive
which was twofold, namely, the demand for repayment of
Rs.15000/- paid by the deceased apart from the alleged
illicit relationship of the appellant with the fourth
accused. Learned counsel relied upon Ratan Gond Vs. The
State of Bihar – AIR 1959 SC 18 and Wakil Nayak Vs. State
of Bihar - 1971 (3) SCC 778 in support of his submissions.
8. Having heard learned counsel for the respective parties and
having bestowed our serious consideration to the judgment
impugned before us and other material papers, as it is a
case of circumstantial evidence, we wish to quote the well
settled principles laid down by this Court in various
decisions which are to be applied in order to examine the
conclusions arrived at by the Courts below while convicting
the accused based on circumstantial evidence. The
principles laid down in those decisions can be mentioned
before finding out whether or not the conviction and
sentence on the appellant can be held to have been
established as stated in the judgment of the High Court as
well as that of the learned Trial Court. The principles can
be set out as under:
(i) The circumstances from which an interference of guilt is
sought to be proved must be conjointly or firmly established.
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(ii) The circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused.
(iii) The circumstances taken cumulatively must form a
chain so complete that there is no escape from the
conclusion that with an all human probability, the
crime was committed by the accused or none else.
(iv) The circumstances should be incapable of explanation
on any reasonable hypothesis, same that of the guilt
of the accused.
9. Keeping the above tests in mind when the circumstances
enumerated in the case on hand as against the appellant are
examined, we find the following circumstances existing as
against the appellant:
The deceased Om Prakash went to the house of the appellant
on 22.08.1997 when he was last seen.
The deceased did not return back to his house even after a
week’s time.
When the son of the deceased, namely, P.W.2 approached the
appellant to find out his father’s whereabouts he was told
by the appellant that his father was involved in the case
of Charas and that she is taking efforts to get him
released.
On 01.09.1997 the appellant herself approached P.W.2 and
asked for a sum of Rs.5000/- in order to enable her to get
his father released from the criminal case.
P.W.13 Tersem Ram deposed that the said sum of Rs.5000/-
was borrowed from him by P.W.2 which was paid to the
appellant.
On 01.09.1997 Exhibit P-19 letter was delivered in the
house of the deceased purportedly to have been written by
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the deceased himself mentioning that he was entangled in
the case of Charas and was lodged in Bikaner Police
Station. In the said letter it was also mentioned that the
said information should not be revealed to his own brothers
and that he was likely to get released very soon.
The address on Exhibit P-19 was found to be in the hand-
writing of A-3 which was also established by legal
evidence. The Trial Court also found as a matter of fact
that the letter was got written by the appellant while the
address was written by co-accused, namely, A-3.
Based on the information furnished by the appellant herself
the body of the deceased was recovered from a place which
was adjacent to her house.
The body was identified by P.W.2 in the presence of P.W.24
S.D.M., Anoopgarh on which the personal articles worn by
him such as shoe, watch, bag etc., were also found and
recovered.
The last of the circumstance was the extra-judicial
confession of the appellant before the Members of the
Panchayat, namely, P.W.8 and P.W.9.
10. When the above circumstances placed before the Trial Court
are considered and the various tests relating to the
circumstantial evidence were applied there can be no
difficulty in holding that the chain of circumstances had
every definite link, namely, from the date the deceased was
stated to have gone to the residence of appellant and,
thereafter, his death was discovered based on the
information furnished by the appellant herself pursuant to
which the body of the deceased was recovered from a place
which was adjacent to her house. In between 22.08.1997 and
the date of recovery of the body of the deceased, the
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appellant met P.W.2 once at her residence and, thereafter,
the appellant herself approached P.W.2 asking for a sum of
Rs.5000/- to enable her to get his father released from the
criminal case. After 22.08.1997, having been known that the
deceased had gone to the residence of appellant and since
he did not return back for about seven days, P.W.2 in the
natural course of events had gone to the residence of the
appellant to find out his whereabouts. This particular fact
was spoken to by P.W.1, the wife of the deceased and P.W.2,
the son of the deceased. The Trial Court has noted that the
said version of P.W.1 and P.W.2 was not in any manner
dislodged at the instance of the appellant. P.W.2 was a
minor, aged about 14 years. Therefore, when the appellant,
who was known to his father who was frequently visiting
her, informed him that his father was involved in a
criminal case relating to charas, believing her words P.W.2
returned back with the fond hope that the appellant would
take every effort to get his father released from the
custody of the police. Not stopping with that the appellant
herself approached P.W.2 on 01.09.1997 with a demand for
payment of Rs.5000/- for the purpose of getting his father
released from the criminal case. The sequence of events
narrated by P.W.2 as from 22.08.1997 till the demand of
Rs.5000/- was cogent and convincing. The further fact that
P.W.2 in his anxiety to get his father released, succumbed
to the demand of the appellant by raising funds for the
payment of Rs.5000/- by borrowing the same from P.W.13 who
supported the said fact by deposing before the Court. The
Court has noted that his testimony was perfect in every
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respect and nothing could be brought out in the cross-
examination to discredit his version. According to P.W.13,
the sum of Rs.5000/- borrowed by P.W.2 from him was handed
over to the appellant. When the said circumstance was found
proved and since there was no other explanation other than
what was demonstrated before the Court by the prosecution
through P.W.2 and P.W.13, the said circumstance was in
addition to the earlier set of circumstances which linked
the involvement of the appellant in the crime alleged
against her. The subsequent factum of recovery of the body
of the deceased at the instance of the appellant was one
other strong circumstance against the appellant in roping
her involvement in the elimination of the deceased and
thereby providing no scope for any other hypothesis other
than her guilt in the killing of the deceased. The other
recoveries made from the body of the deceased duly
identified by P.W.2 was yet another relevant circumstance
to show that the deceased was none other than the father of
P.W.2 and husband of P.W.1. Therefore, the analysis of the
above circumstances alleged and found proved definitely
formed a chain of circumstances having closely linked
together without giving any scope for any other conclusion
than a definite tendency unerringly pointing towards the
guilt of the accused.
11. When we consider the submission of learned counsel for the
appellant, according to learned counsel there was
inordinate delay of 52 days in the registration of the FIR
and, therefore, the story of the prosecution was
unbelievable. It is true that between 22.08.1997 and the
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date of the registration of the crime, there was a
considerable delay. However, after the deceased went to the
house of the appellant i.e. on 22.08.1997 which happened to
be his usual routine as spoken to by the prosecution
witnesses in particular P.W.1 and P.W.2, no fault can be
found in the conduct of P.W.1 and P.W.2 in having waited
for a minimum period of a week for the deceased to return
back. Thereafter, as rightly observed by the Courts below,
it was the game plan of the appellant in having misdirected
P.W.1 and P.W.2, whereby believing her words that the
deceased was involved in a criminal case relating to charas
they were waiting for his arrival, as informed to them by
the appellant. It was quite natural that the wife of the
deceased P.W.1 who was dependent on her minor son P.W.2,
aged about 14 years was waiting in the fond hope that her
husband would have been involved in the criminal case that
too relating to charas, it would take sometime for him to
get out of the clutches of the police. P.W.2 was also in a
similar state of mind especially when the appellant was
further reinforcing her misdirection by collecting a sum of
Rs.5000/- in order to enable her to get the deceased
released from the police. That apart, the appellant hatched
a scheme of sending a letter by post as though the deceased
himself was communicating to his wife and son to the effect
that he got entangled in a criminal case relating to
charas, that the same should not be revealed even to his
own brothers and that he will be able to get himself
released from the said case at the earliest possible time
which was truthfully believed by P.Ws.1 and 2 whose
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innocence was fully encashed by the appellant. A cumulative
effect of the above factors definitely influenced the minds
of P.W.1 and P.W.2 which resulted in the reporting the fact
of missing of the deceased to the police belatedly. At one
point of time they also approached the panchayat members,
namely, P.W.8 and P.W.9 and sought for their guidance as to
how they can find out the whereabouts of the deceased.
Therefore, when P.W.8 and P.W.9 intervened and directly
approached the appellant herself the game plan of the
appellant came to light and, thereafter, complaint was
preferred by P.W.2 on 13.10.1997 which resulted in the
registration of FIR Exhibit P-2. Having regard to the above
factors, we find no substance in the submission made on
behalf of the appellant based on the delay aspect.
12. The learned counsel for the appellant then contended that
the postmortem report did not specify the cause of death
and, therefore, it was not a case of murder. As far as the
said contention is concerned, based on the information
furnished by the appellant herself which was recorded under
Exhibit P-36, the dead body of the deceased Om Prakash
was exhumed under Exhibit P-30 in the presence of P.W.24
S.D.M as well as the appellant herself who identified the
place where the dead body was buried. The said place was
excavated and a bundle was taken out which contained the
dead body over which a white shirt and payajama was found.
The appellant herself confirmed that it was the body of the
deceased Om Prakash. The watch worn by the deceased was
found on the hand of the dead body which was in a
decomposed condition as noted in Exhibit P-13.
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13. P.W.6 Kishan Lal an independent eye-witness confirmed the
digging and the excavation made from where the dead body
was exhumed. Apart from the watch, a pair of shoes was also
recovered under Exhibit P-16. P.W.11, another independent
eye-witness, also confirmed the above factum and recovery
of the dead body at the instance of the appellant. Exhibit
P-29 was the postmortem report prepared by P.W.16 Dr. Om
Prakash Mahayach along with P.W.17 Dr. Sunil Kumar Kaushik
and P.W.18 Dr. Chander Bhan Midha. The articles which were
recovered along with dead body, namely, wrist watch, pair
of shoes, shirt, payajama and empty bag were all identified
by P.W.2, the son of the deceased. In the opinion of
P.W.16, the postmortem doctor, the death could be a murder
as well as natural. Therefore, it is not, as if based on
the postmortem certificate and the version of P.W.16, the
offence of murder can be ruled out. Since the dead body was
recovered in a decomposed state, it was quite natural that
the doctor could not specifically state as to the nature of
injury on the body of the deceased.
14. Having regard to the clinching circumstances found proved
against the appellant with the ultimate discovery of the
body of the deceased at the instance of the appellant
herself, who had the exclusive knowledge on that special
factor, if the death of the deceased was due to any other
cause the best person who could have explained could have
been the appellant alone. In the circumstances, the
conclusion was inescapable that the appellant was squarely
responsible for the death of the deceased and the
contention to the contrary made on behalf of the appellant
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cannot, therefore, be countenanced.
15. Learned counsel raised a contention that by the own version
of P.W.8 and P.W.9, to whom the appellant stated to have
made the extra-judicial confession, pressure was applied on
her which forced her to make the said statement and,
therefore, the same was hit by Section 24 of the Evidence
Act. Though the said submission of the learned counsel has
been satisfactorily dealt with by the Courts below in
particular in the order impugned in this criminal appeal
even by ignoring the said aspect for the present, as we
have found that the chain of circumstances established in
the case on hand sufficiently established the guilt of the
appellant in the killing of the deceased, we do not find
the said submission causing any dent in the case of the
prosecution. For the very same reason the submission that
no blood was found on the Kassi also does not merit
acceptance.
16. The last submission made was that the body of the deceased
was only recovered from an adjacent place not from the
house of the appellant herself, we do not find any
substance in the said submission in order to interfere with
the judgment impugned. The very fact that the recovery of
the dead body came to be made at the instance of the
appellant and that too from an adjacent place to the
residence of the appellant was sufficient enough to rope in
the appellant in the murder of the deceased.
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17. Having regard to our above conclusions, we do not find any
merit in this appeal, the appeal fails and the same is
dismissed.
18. The appellant is on bail. The bail bond stands cancelled
and she shall be taken into custody forthwith to serve out
the remaining part of sentence, if any.
…..……….…………………………...J. [B.S. Chauhan]
…………….………………………………J. [Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; October 05, 2012