Smt.Dali Bai W/o Bheru Giri, vs State of Rajasthan

All above three appeals are directed against the judgment

dated 20.7.2007 passed by the learned Addl. District & Sessions

Judge, Nimbahera in Sessions Case No.93/2005 whereby the

learned trial court held accused appellants Dali Bai W/o Bheru Giri

and Kalu Giri S/o Narayan Giri guilty for the offences under

Sections 302 / 120B and 201 IPC and passed the following

sentence, which reads as under:

Under Section 302 / 120B IPC - Imprisonment for life with fine of Rs.1000/- and in default of payment of find to further undergo three months'' RI

Under Section 201 IPC - One year''s RI with fine of Rs.250/- and in default of payment of fine to further

undergo 15 days'' simple imprisonment.

[both the sentences were ordered to run concurrently]

The learned trial court also while acquitting all other accused

persons convicted one Deu Bai W/o Narayan Giri for the offence

under Section 201 IPC and passed sentence for one year RI

alongwith fine of Rs.250/-.

The appellant Dali Bai filed D.B. Cr. Appeal No.776/2007

through her counsel and also filed another appeal from jail being

D.B. Cr.Appeal No.780/2007. Similarly, the accused appellant Kalu

Giri filed appeal being D.B.Cr. Appeal no.106/2008 from Jail

against the judgment dated 20.7.2007.

All the aforesaid three appeals are filed against the

judgment dated 20.7.2007 passed in Sessions Case No.93/2005

passed by the learned Addl. Sessions Judge, Nimbahera,

therefore, we are deciding all the three appeals by this common

judgment.

As per brief facts of the case, PW--12 Roop Giri submitted a

report before the Superintendent of Police, Chittorgarh on

29.7.2005 alleging therein that his daughter Jamuna Bai was got

married with Kalu Giri four years back after marriage regularly she

was subjected to cruelty by her husband and other in-laws for

demand of sum of Rs.10,000/- for constructing room. It is

further alleged that on 28.7.2005 one person came from village

Muralia and informed that poisonous animal has bite your

daughter, therefore, she died. On receiving such information, the

complainant rushed to the house of her in-laws where he saw

that in-laws of her daughter were prepared for burring the body

of Jamuna as per their customs. According to the complainant,

he was compelled by the accused party to put his thumb

impression on a blank paper and that paper was submitted by

them to the police, but on coming back after burring the body of

his daughter, it has come to his knowledge that his daughter had

been murdered by her in-laws.

Upon aforesaid information (Ex.P/32), FIR (Ex.P/33) was

registered for the offences under Sections 302 and 201 IPC at

Police Station Bhadesar, District Chittorgarh against five persons

namely, Kalu Giri, Narayan Giri, Bheru Giri, Dali Bai and Deu Bai.

After registration of the FIR, the investigation was

commenced and buried body of the deceased Jumna Bai was

taken back from graveyard for the purpose of ascertaining cause

of death and investigation.

The dead body of Jamuna Bai was taken to the hospital for

post mortem where post mortem was conducted by the medical

board and report (Ex.P/22) was given by the board on 31.7.2005.

The accused appellants were arrested and after completing

investigation of the case, charge-sheet was field against the

accused appellants and other co-accused persons for the offences

under Sections 302, 304B and 120B IPC. After committal of the

case for trial, the learned Trial Judge framed charge for offences

under Sections 302 / 120B, 304B, 201 and 202 IPC against all the

accused persons, however, charge for offence under Section 302

IPC was also framed against accused Kalu Giri, husband of the

deceased.

All the accused denied the charges framed against them and

pleaded not guilty and sought trial. During trial, the prosecution

examined 21 witnesses in support of its case and also got

exhibited certain documents as Ex.P/1 to Ex.P/45. Certain articles

were also produced from prosecution side.

After recording of prosecution evidence, statements of the

accused appellants alongwith other co-accused were recorded

under Section 313 Cr.P.C. wherein they denied all the allegations

of prosecution witnesses, however, they did not chose to lead

any evidence in defence. In defence 5 documents were got

exhibited by them, thereafter, the learned trial court proceeded to

hear final argument. The learned trial court while acquitting all

other co- accused persons for various offences including the

accused appellant for the offences under Sections 304B and 202

IPC, convicted the accused appellants for the offences under

Section 302 / 120B IPC and passed sentence as mentioned above

vide judgment dated 20.7.2007.

The accused appellants Dali Bai and Kalu Giri are challenging

the validity of the judgment dated 20.7.2007 on various grounds.

The learned counsel for the appellants submits that there is

no reliable evidence on record to prove the allegation of

prosecution but the learned trial court erroneously held accused

appellant guilty and passed the sentence against them upon the

evidence, which is not trustworthy and reliable. According to the

learned counsel for the appellants the prosecution has miserably

failed to prove the alleged charge against the accused appellants

for the offence under Sections 302 / 120B and 201 IPC because

there is no eye witness of the alleged incident, therefore, whole

prosecution case is based upon circumstantial evidence, that too,

has not been proved by the prosecution. With regard to the

recovery of articles, there is clear cut finding in the judgment that

prosecution has failed to prove the recovery of articles so as to

connect the accused appellants with the alleged crime. However,

the learned trial court gave erroneous finding regarding

conspiracy to commit murder of Smt. Jamuna Bai due to alleged

illicit relations in between accused appellant Dali Bai and Kalu Giri,

therefore, when there is no trustworthy and reliable evidence on

record then obviously, grave error has been committed by the

learned trial court so as to hold accused appellant guilty for

alleged offence of murder.

Learned counsel for the appellants invited our attention

towards the fact that PW--1 Bhagwati Lal, PW--2 Bheru Lal and

PW--13 Nand Giri who were witnesses of circumstantial

evidence, turned hostile and did not support the prosecution case.

While inviting attention towards Ex.D/5 which is an application

moved by father of the deceased Roop Giri dated 28.7.2005

addressed to the SHO Police Station Bhadesar, submits that in the

said application no allegation was levelled by the complainant

father with regard to alleged evidence of murder because there

was no injury upon the body of the deceased. To substantiate the

aforesaid fact, the learned counsel for the appellants invited our

attention towards the statements of PW--9 Dr. P.S. Rathore and

PW--10 Dr. Mahesh Bhutani and submits that both these

witnesses categorically stated before the court that at the time of

post mortem no apparent injuries caused by any weapon was

found upon vital part of the body, although, 7 injuries are

mentioned, but they specifically said that there was no fracture,

dislocation or injury upon the bones and vital part of body.

Therefore, obviously, the father of the deceased first file an

application before the SHO Police Station that he has no suspicion

about cause of death of his daughter, but subsequently, filed an

application after burring the body of his daughter before the

concerned Superintendent of Police.

It is also argued that the written complaint (Ex.P/32) bears

thumb impression of father of the deceased in which an allegation

was made against the accused appellants that death of his

daughter is caused due to dowry, but after assessing evidence the

learned trial court gave finding that prosecution has failed to

prove the offence under Section 304B IPC and acquitted accused

appellants from the charge levelled against them under Section

304B IPC, so also, gave clearcut finding that prosecution has

failed to prove recovery of articles, therefore, it is obvious that

finding of the learned trial court for offence under Section 302 IPC

is totally based upon presumption of illicit relations of accused

appellant Kalu Giri with Dali Bai, who is wife of the brother of

appellant Kalu Giri, therefore, the judgment impugned deserves to

be quashed and set aside.

Learned counsel for the appellants invited our attention

towards the judgment of Hon''ble Supreme Court delivered in the

case of Sharad Birdhichand Sarda Vs. State of Maharastra

reported in AIR 1984 (SC) 1622 in which the Hon''ble Supreme

Court laid down golden principles to consider the case based upon

circumstantial evidence and held that no accused can be convicted

upon circumstantial evidence if the chain of circumstances is not

complete so as to prove the case beyond reasonable doubt.

Learned counsel for the accused appellants further submits that

the prosecution has failed to prove its case on the basis of

circumstantial evidence, therefore, the judgment impugned may

kindly be quashed and set aside.

Per contra, learned Public Prosecutor vehemently argued

that no error has been committed by the learned trial court to

convict the accused appellants Kalu Giri and Dali Bai under Section

302 / 120B and 201 IPC because there is ample trustworthy

evidence on record that Kalu Giri and Dali Bai were having illicit

relations which is disclosed by the deceased to her mother PW--11

Mangi. The said witness has categorically stated before the court

that Jamuna Bai informed her that Kalu and Dali are having illicit

relations and they used to beat her, so also, accused Kalu is

regularly demanding Rs.10,000/- for construction of house. The

learned Public Prosecutor invited attention towards the statement

of PW--12 Roop Giri, author of the FIR and submits that the said

witness has categorically stated before the court that deceased

asked him for money to satisfy the demand of her in-laws and due

to demand of money, she loss her mental status and asked to live

separately. It is also stated that false information was given to

him about death of his daughter that some poisonous animal bite

her, therefore, she died, but in fact, she was murdered by the

accused appellant and before father reached to the in-laws house

of his daughter, they prepared everything for burring her body

and obtained his signature upon blank paper, which is

subsequently submitted before the police, therefore, all above

circumstances loudly speaks that prosecution has proved its case

beyond reasonable doubt on the basis of circumstantial evidence.

Learned Public Prosecutor accepted that although the

learned trial court gave finding that prosecution has failed to

prove recovery of articles but has successfully established the

case of oral evidence with regard to offence of murder of deceased

Jumna Bai due to illicit relations in between accused appellant

Kalu Giri and Dali Bai, wife of his brother, therefore, there is no

strength in the arugment of the learned counsel for the appellants

that prosecution has failed to prove its case beyond reasonable

doubt.

Learned Public Prosecutor argued that the finding of the

learned trial court with regard to illicit relation of the accused

appellant Kalu Giri with Dali Bai is based upon oral testimony of

PW--11 Mangi and PW--12 Roop Giri, so also, PW--13 Nand Giri,

uncle and PW--15 Mangu Giri, uncle of the deceased, therefore,

there is no question to interfere in the finding of guilt arrived at by

the learned trial court, therefore, appeals may kindly be

dismissed.

After hearing learned counsel for the parties, we have

perused the finding given by the learned trial court in the

judgment impugned as well as entire evidence. Admittedly, the

learned trial court framed charge against the accused appellants

for the offences under Sections 302 / 120B, 304B, 201 and 202 IPC

and after due consideration and assessment of the evidence, first

of all in para no.28 of the judgment, gave finding that prosecution

has failed to prove the recovery of articles, therefore, the recovery

of articles cannot be treated as an evidence so as to convict the

accused appellants for alleged crime of murder.

For the allegation of illicit relations, the witness PW--1

Bhagwati Lal and PW--2 Bheru Lal, neighbors of the deceased and

PW--13 Nand Giri, close relative of the deceased turned hostile

and did not support the prosecution case, the finding of the illicit

relation is based upon the testimony of PW--3 Shanker Lal, PW--

11 Mangi, mother of the deceased and father PW--12 Roop Giri.

We have perused the statement of PW--3 Shanker Lal. The said

witness stated before the court that I am employee of Water

Works Department and in the morning at 4''O Clock when I went

to open the pump, cry of lady was coming from the house of

Narayan Giri, but in cross-examination a question was put to him

why this fact was not disclosed in the statement (Ex.D/1)

recorded under Section 161 Cr.P.C., it is stated by him that I

narrated all the facts before the police during investigation, why

this fact is not mentioned in the statement, he does not know.

Similarly, PW--12 Roop Giri, father of the deceased first file

an application before the SHO that he has no apprehension or

suspicion about cause of death of his daughter because no injuries

found upon her body, but later on filed an application for

registration of the FIR and levelled allegations, but his allegations

are not proved by any of the independent witnesses. We have

perused the application (Ex.D/5) also filed by him in which no

allegation was levelled by Roop Giri, father of the deceased nor

any allegation was levelled by him with regard to suspicion about

death of the deceased and for the injuries upon her body.

It is also worthwhile to observe that PW--11 Mangi, PW--12

Roop Giri, mother and father of the deceased are residing at

different village and their allegation with regard to demand of

Rs.10,000/- has been disbelieved by the learned trial court,

therefore, the learned trial court acquitted the accused appellants

from the charge levelled against them for the offence under

Section 304B and 120B IPC.

It is settled principle of law that in absence of direct evidence

or eye witnesses if prosecution case is based upon circumstantial

evidence, then all the circumstances are required to be proved

beyond reasonable doubt. Here in this case, the father of

deceased PW--12 Roop Giri filed an application (Ex.D/5) before

SHO Police Station Bhadesar and said that he has no doubt about

death of his deceased daughter, but after participating in

cremation, an application was filed by him in which allegations

were levelled for demand of Rs.10,000/- and beating but learned

trial court disbelieved the said allegation because there is no

evidence to prove the said allegation.

With regard to allegation of illicit relations, there is no

trustworthy corroboration of the allegation. More so, PW--3

Shanker Lal improved his statement in the court and said that in

the morning cry of lady was heard by me when he was going to

open the pump in the morning at 4''O Clock on the date of

incident.

Upon consideration of the entire evidence, admittedly, at the

time of burring the body of the deceased for cremation, the PW--

12 Roop Giri, father of the deceased and other family members

were present and they inspected the dead body and find that

there was no mark of injury upon the body of the deceased

Jamuna Bai. This fact is also established from the statement of all

the witnesses who stated that there were no apparent injury upon

the dead body of the deceased. Although, some internal injuries

were found and for those internal injuries, this Court cannot lose

sight of the fact that buried body was taken out from the

graveyard for the purpose of post mortem after two days.

Therefore, obviously the injuries which is mentioned in the post

mortem report were caused at the time of burring and taking out

the body from graveyard. The learned trial court disbelieved the

allegation of demand of Rs.10,000/- .

We have perused the finding of the learned trial court upon

which conviction is based. It is important aspect of the matter

that FIR was filed by the complainant against whole of the family

members of in-laws of deceased namely Narayan Giri, Kalu Giri,

Smt. Dali Bai, Smt. Deu Bai, Magan Giri and Bheru Giri, but the

learned trial court disbelieved the entire prosecution case for

offence under Section 304B IPC, so also, acquitted Narayan Giri,

Magan Giri and Bheru Giri from the charge levelled against them

and convicted Smt. Deu Bai only for offence under Section 201

IPC.

Upon perusal of the finding of guilt arrived at by the learned

trial court in paras nos.46 and 47 of the judgment, we are of the

opinion that the finding of the learned trial court so as to hold

accused appellants guilty for offence under Section 302 / 120B and

201 IPC is totally based upon presumption, based upon testimony

of hostile witnesses. It is settled principle of law that the

circumstances from which the conclusion of guilt is to be drawn,

should be fully established to complete the chain of circumstances

so as to hold accused appellant guilty for offence under Section

302 / 120B and 201 IPC. In the case of Sharad Birdhichand Sarda

Vs. State of Maharashtra reported in AIR 1984 SC 1622 the

following parameters/guidelines are laid down by the Hon''ble

Supreme Court, which reads as under:-

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra ('') where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

These five golden principles are the panchsheel of the

proof of a case based on circumstantial evidence to convict the

offender, but in this case, prosecution has failed to prove the

allegations.

The Hon''ble Apex Court in C. Chenga Reddy v. State of A.P . reported in (1996) 10 SCC 193, has observed thus: (SCC pp. 206-

07, para 21)

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In Trimukh Maroti Kirkan vs. State of Maharashtra reported

in (2006) 10 SCC 681, the Hon''ble Supreme Court held as under:-

"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other

than that of the guilt of the accused and inconsistent with their innocence."

We have considered the evidence of present case coupled

with the finding of the learned trial court based upon

circumstantial evidence in the light of aforesaid judgment. In our

opinion, the finding of guilt arrived at by the learned trial court is

based upon presumption and without considering the entire

circumstances in proper manner. It is settled principle of law as

per verdict given by the Hon''ble Supreme Court in the case of

Sharad Birdhichand (supra) that prosecution has to prove its case

beyond reasonable doubt, but here in this case, we have no

hesitation to hold that the prosecution has failed to prove its case

beyond reasonable doubt because the learned trial court gave

specific finding that prosecution has failed to prove recoveries of

articles and offence under Section 304B and 202 IPC, so also, as

per medical evidence, no fracture, no apparent injuries were found

upon the body of the deceased. Similarly, the injuries found at

the time of post mortem can be caused when body was taken out

from the graveyard. Therefore, in absence of any reliable and

trustworthy evidence, it cannot be said that conviction of the

accused appellants for alleged offence of murder cannot be

treated to be proved because there is no eye witness and most of

the independent witness turned hostile, therefore, prosecution has

failed to prove its case beyond reasonable doubt on the basis of so

called circumstantial evidence.

Consequently, all the three cr. appeals are hereby

allowed. The judgment dated 20.7.2007 passed by the

learned Addl. Sessions Judge, Nimbahera in Sessions Case

NO.93/2005 convicting and sentencing the accused

appellants Smt. Dali Bai and Kalu Giri for the offences under

Section 302 / 120B and 201 IPC is hereby quashed. The

accused appellants be set at liberty unless required in any

other case.

Keeping in view, however, the provisions of Section

437A Cr.P.C. the accused appellants are directed to forthwith

furnish personal bonds in the sum of Rs.20,000/- each and a

surety bond in the like amount, before the learned trial court,

which shall be effective for a period of six months to the

effect that in the event of filing of Special Leave Petition

against the judgment or for grant of leave, the appellants, on

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

Supreme Court.