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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