Charan Singh And Anr vs State Of Rajasthan Through P P
2023 Latest Caselaw 2254 Raj/2

[2023/RJJP/002320]




 HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
                                      JAIPUR

                     D.B. Criminal Appeal No. 2231/2017

1.       Charan Singh S/o Shri Udai Chand, R/o Pratap Singh Pura
         Police Station Neemrana Distt. Alwar.
2.       Smt. Shakuntala Devi W/o Shri Udai Chand, R/o Pratap
         Singh Pura Police Station Neemrana Distt. Alwar.
         Both are at Present In Central Jail, Alwar.
                                                            ----Accused-Appellants
                                        Versus
State Of Rajasthan Through P.P.
                                                                      ----Respondent

 For Appellant(s)              :     Mr. Vinay Pal Yadav with
                                     Mr. Rakesh Trivedi
 For Respondent(s)             :     Mr. Javed Choudhary, Addl.G.A. and
                                     Mr. Amit Jindal with
                                     Mr. Sudhir Yadav


           HON'BLE MR. JUSTICE PANKAJ BHANDARI
            HON'BLE MR. JUSTICE ASHUTOSH KUMAR

                                        Order

JUDGMENT RESERVED ON                       :                        18/01/2023
DATE OF PRONOUNCEMENT :                                             21/02/2023
(PER HON. ASHUTOSH KUMAR, J.)

This criminal appeal has been filed by the appellants Charan

Singh and Smt. Shakuntala Devi against the judgment of

conviction and order of sentence dated 30.11.2017 passed by the

Additional District and Sessions Judge No.1, Behror, District Alwar

in Sessions Case No.21/2015: State vs. Charan Singh and Ors. by

which learned trial Court has convicted and sentenced the

appellants as under:

[2023/RJJP/002320] (2 of 10) [CRLA-2231/2017]

"- for offecne under Section 302 read with 34 IPC to L.I. each with fine of Rs.10,000/- each and in default of payment of fine 3 years R.I. each.

- for offence under Section 498A IPC to 3 years R.I. each with fine of Rs.5,000/- each and in default of payment of fine 6 months additional S.I. each.

- for offence under Section 406 IPC to 3 years R.I. each with fine of Rs.5,000/- each and in default of payment of fine 6 months additional S.I. each.

- for offence under Section 201 IPC to 3 years R.I. each with fine of Rs.5,000/- each and in default of payment of fine 6 months additional S.I. each."

The case of prosecution in nutshell before the learned trial

Court was that complainant Jagdish Prasad filed an FIR (Ex.P.-3) in

Police Station Neemrana disclosing therein that his daughter Sarita

was married to appellant Charan Singh on 29.04.2013. After

marriage, in-laws of his daughter were torturing her to bring a

Swift Dzire car. The deceased was continuously telling about such

demands to Jagdish Prasad (father of deceased) and her mother.

Since, he could not meet the demand of the appellant, the

husband, mother-in-law and father-in-law of the deceased

strangulated and killed her on 05.01.2015. FIR No.9/2015 was

registered and after investigation a charge sheet against husband

of the deceased, Charan Singh was filed for the offences

punishable under Sections 498A, 304-B, 406, 302 and 201 IPC

and investigation was kept pending under Section 173(8) Cr.P.C.,

against Shankuntala Devi and Udai Chand. They were made

accused in this case and summoned for trial under Section 319

Cr.P.C.

[2023/RJJP/002320] (3 of 10) [CRLA-2231/2017]

All the three accused persons were charged for the offences

punishable under Sections 498A, 406, 201 and 304-B and in

alternative 302 IPC.

The prosecution examined 23 witnesses and exhibited 23

documents.

Accused persons were examined under Sections 313 Cr.P.C.

No witness was examined on behalf of the defence. However,

defence has relied on Exhibit D-1 to Exhibit D-21.

Learned trial Court in its judgment dated 30.11.2017

acquitted accused Udai Chand for offences under Sections 498A,

406, 201, 302 read with Section 34 IPC. However, appellants

Charan Singh and Shakuntala Devi were convicted and punished

as mentioned hereinabove.

Learned counsel for the appellants has contended that the

learned trial Court has erred in convicting the accused persons for

the offence punishable under Section 302 IPC because there is no

evidence, by which the case against the accused can be proved

beyond reasonable doubt. Counsel for the appellants contends

that learned trial Court has convicted the appellants, merely on

the basis of baseless assumptions. It has also been contended

that since the learned trial Court has not found any case against

the accused persons under Section 304-B IPC, it means that there

was no evidence on record to prove that soon before her death,

the deceased was subjected to harassment and cruelty. They

contend that this proves the fact that there was no motive to kill

the deceased. He further contends that there is no direct evidence

in this case and the learned trial Court has drawn its conclusion of

[2023/RJJP/002320] (4 of 10) [CRLA-2231/2017]

conviction only by presuming certain facts. He further contends

that there can be no presumption against the accused to convict

him for the offence punishable under Section 302 IPC.

Learned counsel appearing for the appellants has relied upon

and drawn our attention to the principles of law laid down in the

case of Satye Singh & Anr. vs. State of Uttarakhand: 2022

Live Law (SC) 169 wherein, it has been held that the conviction

can be based solely on circumstantial evidence but it should be

tested on the touchstone of law relating to the circumstantial

evidence. He contends that all circumstances must lead to the

conclusion that the accused is the only one who has committed

the crime and none else. He avers that circumstances howsoever

strong cannot take place of proof and that the guilt of the accused

has to be proved by the prosecution beyond reasonable doubt.

Learned counsel has also relied on judgment of Hon'ble Supreme

Court in the case of Shivaji Chintappa Patil vs. State of

Maharashtra: (2021) 2 Supreme Court Cases (Cri) 679

wherein, it has been held that Section 106 does not absolve

prosecution from discharging its primary burden of proving

prosecution case beyond reasonable doubt. It is only when

prosecution has led evidence which, if believed, will sustain a

conviction, or which makes out a prima facie case, will there arise

a question of considering facts of which burden of proof would lie

upon accused. It has also been held in this case that it is well

settled principle of law, that false explanation or non-explanation

of any circumstance can only be used as additional incriminating

circumstance, when prosecution has proved chain of

[2023/RJJP/002320] (5 of 10) [CRLA-2231/2017]

circumstances leading to no other conclusion but the guilt of

accused.

On the other hand, learned Addl. Government Counsel and

learned counsel appearing for the complainant have supported the

judgment of conviction and sentence passed against the

appellants and contended that the appeal be dismissed. It has

been argued on behalf of the prosecution that the deceased was

continuously harassed for demand of dowry and has died in the

house of her in-laws and that too in unnatural circumstances. Only

the appellants had the opportunity and motive to kill the

deceased. Therefore, the appeal be dismissed. Reliance has been

placed on the judgment of Supreme Court of India in the case of

State of Karnataka vs. M.V. Manjunathegowda and Ors.:

AIR 2003 SC 809.

We have considered the arguments put forth from both the

sides and perused the record.

So far as, the cause of death of the deceased is concerned,

as per the postmortem report Ex.P-12 cause of death is axphyxia

due to strangulation. PMR has been proved by oral evidence of

PW-11 Dr. Adarsh Agarwal, PW-13 Dr. Krishan Kumar and PW-21

Dr. Ravish Yadav. However, PW-11 Dr. Adarsh Agarwal and PW-21

Dr. Ravish Yadav in their cross-examination have admitted that as

per ligature mark found around the neck of the deceased

possibility of hanging cannot be ruled out. It is the case of

prosecution that the deceased was strangulated whereas case of

defence is that the deceased committed suicide by hanging.

[2023/RJJP/002320] (6 of 10) [CRLA-2231/2017]

Learned trial Court has convicted the appellants for the

offences punishable under Sections 498-A, 406, 302 and 201 IPC

for which no presumption against the accused persons is available

to the prosecution in order to convict them. Therefore, it was the

duty of the prosecution to prove all these charges levelled against

the accused beyond reasonable doubt. Admittedly, this case is not

based on direct evidence but, on circumstantial evidence. When

the case is based on circumstantial evidence, prosecution is duty

bound to prove that all circumstances lead to the conclusion that

the accused is the only one who has committed the offence and

none else. Now, we have to see whether the prosecution has

discharged its burden to prove the charges levelled against the

accused appellants beyond reasonable doubt or not. The learned

trial Court in para no. 58 of the impugned judgment has narrated

all the circumstances and conduct of the accused appellants on

which the learned trial Court has come to the conclusion of

convicting the accused appellants.

Learned trial Court has mentioned in the judgment that the

room where the deceased was found was in topsy-turvy condition

and pieces of broken bangles were found lying, slippers were lying

hither and thither, but no such circumstances were found by

Investigating Officer on the scene of occurrence because in the

site plan Ex.P-6 no pieces of broken bangles or topsy-turvy

condition of the room or slippers have been mentioned.

It is also the case of the prosecution that the deceased was

strangulated by the accused appellants. During investigation the

Investigating Officer did not try to know the means and manner of

[2023/RJJP/002320] (7 of 10) [CRLA-2231/2017]

strangulation. The article by which alleged strangulation was

committed has also not been recovered by the police. This fact

also goes against the prosecution.

In para no.58 of the judgment, learned trial Court has also

mentioned the fact that the appellants did not claim body of the

deceased and the body was handed over to Jagdish Prasad, father

of the deceased vide Ex.P.-5. Whereas, Ex.P.-20, by which body of

the deceased was handed over to Udai Chand, father-in-law of the

deceased for last rituals, has been proved by PW-17 Head

Constable Rohitash Singh. Therefore, this conclusion of the

learned trial Court that appellants did not claim the body of the

deceased seems to be erroneous.

The evidence which has been produced by the prosecution

witnesses in this case was against all the accused persons namely

Udai Chand, Shakuntala Devi and Charan Singh but the learned

trial Court did not consider this evidence to be true against

accused Udai Chand who has been acquitted. It seems that the

learned trial Court has come to the conclusion that Udai Chand, at

the time of incident was in Delhi and not at the scene of

occurrence. Therefore, prosecution evidence was disbelieved by

the learned trial Court against the accused Udai Chand. Although,

the same evidence has been relied upon, to base conviction

against the appellants without there being any cogent evidence to

prove the presence of the appellants in the house at the time of

occurrence. Prosecution in this case has failed to prove either by

direct or by circumstantial evidence that in fact, both the

appellants were present, at the time of incident at the scene of

[2023/RJJP/002320] (8 of 10) [CRLA-2231/2017]

occurrence. The learned trial Court has observed in the judgment

that since the appellants have not produced any evidence in their

defence to prove the fact that they were not present at the scene

of crime at the time of incident, they must have committed the

offence. The learned trial Court based its conviction on non

production of cogent evidence by defense. No such assumption of

guilt can be drawn to base conviction under Section 302 IPC. It

was not the duty of the appellants to lead evidence to prove their

alibi but it was the duty of prosecution to prove by all cogent

evidence that the appellants were present, in the house where the

death of the deceased took place, at the time of the incident, and

that they are the persons who have murdered the deceased.

So far as charges against the appellants under section 498A

and 406 IPC are concerned, it has come on record that there was

no demand for dowry at the time of marriage. For the offences

under sections 498A and 406 IPC, general omnibus statements

have been given by the parents and other relatives of the

deceased.

There is no evidence as to exactly when and in what manner

demand of dowry was made. As per statement of PW-3 Jagdish

Kumar who is the father of deceased, it is admitted that no bills

were submitted in the Court in support of expenditure incurred in

marriage of deceased and accused. No trust worthy and cogent

evidence has been given which shows that the appellants harassed

and committed cruelty with the deceased in connection with

demand for dowry. It is also noteworthy here that the trial Court

has not relied upon the prosecution evidence with regard to the

[2023/RJJP/002320] (9 of 10) [CRLA-2231/2017]

demand for dowry against accused Udai Chand, who has been

acquitted by the trial Court on the basis of same prosecution

evidence in this case.

From the above discussion, this Court has come to the firm

conclusion that:

1) There is no direct evidence to implicate the appellants in this case.

2) It has not been proved beyond reasonable doubt that appellants are the persons who have murdered the deceased and no one else.

3) Trial Court has based its judgment of conviction against the appellants on the basis of certain assumptions whereas it was the duty of trial Court to convict the appellants only when the prosecution has discharged its burden to prove the charges levelled against the accused persons beyond the shadows of reasonable doubt.

In the light of the above discussion, this Court finds that the

trial Court has erred in convicting the appellants in this case for

the offences under Sections 498-A, 406, 302 and 201 read with

section 34 IPC.

Therefore, this appeal deserves to be allowed. The judgment and

order dated 30.11.2017 is set aside and the appellants are

acquitted of the charges levelled against them. Appellants are in

jail, they be set at liberty forthwith, if not required in any other

case.

The appellants are directed to furnish a personal bond of Rs.

Rs.50,000/- (Rupees Fifty thousand only) and one surety in the

like amount in accordance with section 437A CrPc, before

[2023/RJJP/002320] (10 of 10) [CRLA-2231/2017]

Registrar Judicial within a period of two weeks from the date of

release to the effect that in the event of filing of Special leave

petition against this judgment or on grant of leave, the appellant

on receipt of notice thereof, shall appear before the Hon'ble Apex

Court. The bail bonds will remain effective for a period of 6

months.

                                   (ASHUTOSH KUMAR),J                                          (PANKAJ BHANDARI),J

                                   MADAN/30









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