Sangeeta and Others vs State of Rajasthan and Others

Kanwaljit Singh Ahluwalia, J.—1. Keshav son of Shyam Lal, Matadeen son of Babulal alongwith Sangeeta wife of deceased Chandrabhan were sent for trial for having caused murder of Chandrabhan. Case of the prosecution is that Chandrabhan was murdered between 2.2.2007 to 21.2.2007. Court of Additional Sessions Judge, Fast Track No. 2, Dholpur vide impugned judgment dated 27.4.2009 recorded acquittal of Keshav and Matadeen. However, the trial court convicted Sangeeta wife of the deceased Chandrabhan for offence under Sections 302 and 201 IPC. It will be pertinent to mention that Matadeen and Sangeeta were charged for offence under Sections 364-364/34, 302-302/34, 201-201/34 IPC, whereas Keshav was charged only for offence under Section 364/120B IPC. Having convicted Sangeeta alone for offence under Section 302 and 201 IPC, vide a separate order of even date, the trial Judge had convicted Sangeeta as under:-

"U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo three months additional imprisonment.

U/s. 201 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month additional imprisonment."

Aggrieved against her conviction and sentence, Sangeeta has filed D.B. Criminal Appeal No. 703/2009. State of Rajasthan being dissatisfied with the acquittal of Keshav and Matadeen preferred D.B. Criminal Appeal No. 506/2010. The said appeal was entertained after leave to appeal was granted. It is a case of circumstantial evidence. The trial Judge in the impugned judgment had noted the following circumstances to record conviction of Sangeeta:-

"(i). Disclosure made by Sangeeta under Section 27 of the Evidence Act leading to recovery of dead body of deceased Chandrabhan.

(ii). Recovery of clothes of deceased, i.e. pant, shirt at the instance of Sangeeta.

(iii). Evidence of last seen of Sangeeta with her husband Chandrabhan."

It will be apposite here to reproduce Para-31 of the judgment wherein incriminating circumstances relied by the prosecution have been noticed as under:-

The trial Judge disbelieved Charan Singh (P.W.11) before whom Matadeen had allegedly made an extra-judicial confession admitting his guilt. The trial court also held that the prosecution has miserably failed to prove any evidence to connect Matadeen and Keshav with the crime.

Since both the appeals assail the common judgment, the same shall be decided together.

Criminal proceedings in the present case were set into motion on the statement made by Suresh (P.W.13). Suresh (P.W.13) presented written report (Ex. P.20) before the In-charge, Police Station Kolari on the basis of which formal FIR (Ex. P.21) was registered. Written report (Ex. P.20) when translated into English reads as under:-

"To,

The S.H.O. Sahab, Police Station Kolari, Dholpur.

Sub.: For lodging of report.

Sir,

It is submitted that on 1.2.2007 my son Chandrabhan had gone to bring back his wife Sangeeta from the house of her parents. He had gone to Village Kheragarh. On that day, mother-in-law of my son had not sent Sangeeta with my son. I have learnt that on the next day on 2.2.2007 my son Chandrabhan alongwith his wife Sangeeta at about 2.00 PM was seen alongwith Matadeen Thakur, resident of Moja Ka Nagla, P.S. Maniya. At 5.00 PM they came to the Village Badrika. Near a culvert of Badrika my son Chandrabhan and his wife Sangeeta at around 6.00 PM were seen by Rajendra Thakur r/o Talpura and Rakesh Tyagi r/o Badrika and other passerby. Rajendra told them that night had already fallen, therefore they should sit on their motorcycle and he will drop them at their house. At that time, both had stated that they are accompanied by Matadeen. He had gone to ease himself and he (Matadeen) had assured that he will drop them to their house. Till 6.2.2007 my son Chandrabhan and his wife Sangeeta had not returned to my house. I had gone to the Village Sone (village of in-laws of my son). On 2.2.2007 Sangeeta and Chandrabhan had accompanied Matadeen son of Babulal. My son alongwith his wife had not reached at the house. Therefore, I had narrated this fact to my villagers. My co-villagers and residents of nearby villages have searched for my son and my daughter-in-law. We have been searching for them, but nothing had been learnt about their whereabouts. I have suspicion that my son Chandrabhan and daughter-in-law Sangeeta have been taken away by Matadeen Thakur. I have suspicion upon Satyendra brother-in-law of Chandrabhan, his mother-in-law Meera and Keshav Thakur father-in-law of Matadeen. They all are involved in conspiracy hatched by Matadeen. Legal action be taken."

In the present case, after charges were framed and denied by the accused, prosecution examined twenty-two witnesses.

P.W.5 Raghunath, P.W.6 Girraj, P.W.7 Pawan, P.W.8 Shiv Singh, P.W.13 Suresh, P.W.17 Viram Singh and P.W.22 I.O. Pramendra Kumar have deposed regarding recovery of dead body at the instance of Sangeeta. It is to be noted that the prosecution had recorded two statements under Section 27 of the Evidence Act regarding recovery of dead body.

On 29.4.2007 at about 8.40 A.M. Sangeeta is said to have suffered a disclosure statement (Ex. P.28) that she had buried dead body of her husband in a Kotadi in a field in Village Moja Ke Nagla. On 7.6.2007 at 10.15 AM Matadeen had suffered a disclosure statement (Ex. P.31) that he can disclose the place where he had killed Chandrabhan and buried his dead body.

Disclosure of Sangeeta is sufficient to exclude the disclosure subsequently made by Matadeen. Disclosure first in time leading to the discovery of fact make the subsequent disclosure inadmissible in evidence as fact already known to the investigating officer cannot be re-disclosed. Thus, the subsequent disclosure has been rightly disbelieved by the trial Judge qua Matadeen.

Now we are left with the disclosure (Ex. P.28) made by Sangeeta on 29.4.2007 at 8.40 A.M. This disclosure (Ex. P.28) is not witnessed by any witness. It is only prepared by the investigating officer. In Rameshwar and Dinesh @ Pillu v. State of Rajasthan, [D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014], a Division Bench of this court in which one of us (K.S. Ahluwalia, J.) was a member relying upon Harjit Singh & Ors. v. State of Punjab [, AIR 2002 Supreme Court 3040] has held as under:-

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. v. State of Punjab , AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

For non-associating any witness, what to say of independent witness, to the disclosure, we shall ignore the disclosure of dead body made by Sangeeta appellant. We also find major contradictions in the testimony of the witnesses who had attested recovery memo and had witnessed the recovery.

Raghunath (P.W.5) in the examination-in-chief stated that he had gone to the Police Station alongwith Girraj, Shiv Singh, Pawan, Kashi Ram. Sangeeta in the presence of other persons told police that she alongwith Matadeen had killed Chandrabhan and had buried the dead body below a "Band Kotadi" (hut). It is stated that the police had exhumed the dead body with the aid of Fawada. Dead body was decomposed and an underwear, Baniyan and Tabeej were present. In cross-examination, this witness stated that police had called Suresh. Suresh had called him. Police had not called him directly. He further stated that he was called by Suresh at 9.00 AM. The witness further stated that he is not aware on which date Sangeeta was arrested. Suresh had come a day before her arrest. The witness stated that he is not aware whether Suresh had gone a day earlier or not. Suresh (P.W.13) is father-in-law of deceased Chandrabhan. In cross-examination, Raghunath (P.W.5) further stated that he had not exchanged any talk with the police or Sangeeta. 100-150 persons had gathered at Tibaria. The witness further stated that police had obtained his signature on the papers on the day dead body was recovered. The witness stated that he had not narrated police that he had reached Moja Ka Nagla. Police may have written herself. However, the witness stated that underwear and Baniyan were intact. The witness stated, . The witness stated that since he was not having the watch, he cannot say at what time recovery was effected. The witness further stated that the police brought Sangeeta at the spot. He had seen her at the first time. The witness further stated that he is not aware whether Sangeeta had disclosed to the police earlier that she had murdered Chandrabhan alongwith Matadeen.

Girraj (P.W.6) in examination-in-chief stated that Sangeeta had disclosed that she alongwith Matadeen had buried the dead body. Police had exhumed the dead body. This witness also admitted that only skeleton was recovered. The witness further stated that he had no talk with Sangeeta, .

Pawan (P.W.7) in court stated that he had not gone to police station Kolari. As to what Sangeeta had told to police he is not aware. He had not heard the same. Only Suresh had heard the same, . This witness further stated that after seeing Tabeej he had not identified the dead body. He further stated that except underwear, Baniyan and Tabeej nothing else was present on the skeleton and from the body could be identified. Thus, the witnesses to recovery were called by Suresh (P.W.13) father-in-law of the appellant Sangeeta and he informed them about the place of recovery.

Dr. V.N. Singh Tomar (P.W.14) stated that he conducted autopsy on 29.4.2007. Duration between death and postmortem was more than two months. Dead body was identified from the clothes. The dead body was fully decomposed. Only bones were recovered. The witness in cross-examination stated that they had identified from the bones that same was of a male person.

Once the doctor had determined duration between death and postmortem as two months, we have doubt that the prosecution has proved the identity of the dead body. It is true that the recovery of corpus delecti is not necessary, but from the bones recovered it cannot be said that they were of deceased Chandrabhan. We are further of the view that by efflux of time, vest and underwear beneath the earth will not remain intact and are not sufficient for the purpose of identification. Be that as it may, there are inherent contradictions between the witnesses regarding evidence to the effect that Sangeeta had led the police party to the place of recovery. The disclosure according to the witness was only made in the presence of Suresh. Suresh (P.W.13) is father of Chandrabhan deceased. Suresh had called the witnesses. They had allegedly gathered at the spot. The disclosure statements were not attested by any independent witness, all these factors put us on guard and to adopt rule of caution, hence we cannot rule out that after dead body was recovered, disclosure was fabricated at the instance of the police.

Now we shall examine the evidence of last seen. Prosecution to prove evidence of last seen has examined Rakesh (P.W.2), Rajendra Singh (P.W.4) and Viram Singh (P.W.17).

Rakesh (P.W.2) has been duly confronted with his statement (Ex. D.1) wherein name of Sangeeta is not mentioned. The witness has stated in court that police has recorded his statement regarding last seen after twenty days. The witness stated that after twenty days when his statement was recorded, police started searching for Chandrabhan and Sangeeta. However, the witness stated that this fact is not recorded in his statement (Ex. D.1). The witness further stated that he had disclosed the name of Chandrabhan and had used the words ''daughter-in-law'' for Sangeeta. The witness stated that he has not named Sangeeta. Name of Sangeeta is not noticed in his previous statement recorded by the police under Section 161 Cr.P.C. The witness stated that in his statement (Ex. D.1), portion ''C to D'' that fact one boy and girl were seen sitting by him has wrongly been recorded by the police. The witness further stated that after he had seen Sangeeta and Chandrabhan, 3-4 days thereafter he had disclosed the whole version to the police. It will be pertinent to mention the following portion of the statement of the witness:-

Admittedly, Chandrabhan had left house of his in-laws on 2.2.2007. Statement (Ex. D.1) of Rakesh was recorded on 22.2.2007 after twenty days of the offence.

Rajendra Singh (P.W.4) stated that wife of Chandrabhan was not known to him earlier. He stated that Chandrabhan had only told that he is returning alongwith his wife. He further stated that he had seen Chandrabhan and his wife. This fact was not recorded in his statement (Ex. P.3) recorded under Section 161 Cr.P.C. It will be apposite here to reproduce the following portion from the cross-examination of Rajendra Singh (P.W.4):-

In cross-examination he further stated that he cannot tell whether Sangeeta was having a veil or not, .

It is common knowledge that in State of Rajasthan ladies cover their face and observe Parda from men in rural area. It will be incumbent for the prosecution to prove identity of the woman who was accompanying Chandrabhan. Evidence of last seen itself is a weak piece of evidence.

In the case of Ram Kishore Harbhajan @ Bhajani v. State of Rajasthan [D.B. Criminal Appeal No. 974/2006] decided on 06th May, 2015, to which one of us (K.S. Ahluwalia, J.) was a Member, had noted the judgment of Supreme Court in State of Goa v. Sanjay Thakran & Anr. [, (2007) 3 SCC 755] and had relied upon Paras 31, 32, 33 and 34 of the aforesaid judgment as under:-

"31..... It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J & as under : (SCC p.63, para 31)

"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases..."

[See also :State of U.P. v. Satish(SCC para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P. (SCC para 27)].

In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

In Jaswant Gir v. State of Punjab, it was observed that (SCC p.441, para 5)

"5...... In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the ''last seen'' evidence, even if the version of PW 14 in this regard is believed..."

From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

In view of law laid by Supreme Court, we find that evidence of last seen has not been proved by the prosecution conclusively.

So far recovery of pant and shirt of deceased at the instance of Sangeeta is concerned, that to us is not of much significance. Sangeeta is wife of deceased. Recovery of clothes of husband at the instance of wife is not sufficient to uphold the conviction.

Furthermore, Suresh (P.W.13) in his cross-examination has stated that Article-3 shirt is of ten years child and pant Article-2 is of a child between 10-12 years. The exact words of the witness in cross-examination are, .

The entire edifice of the prosecution on the identification of dead body also fall down on the ground as Suresh (P.W.13) father of deceased stated that underwear, Article-1, is not of his son.

Learned Public Prosecutor also could not controvert the statement made by the learned counsel for the accused that the prosecution has not proved on record any report by the Forensic Science Laboratory to the effect that pant and shirt allegedly recovered at the instance of Sangeeta were having any blood stain or not.

It is also settled legal preposition that in a case of circumstantial evidence, the prosecution should prove chain of circumstances to lead to the conclusion that the accused alone has committed the offence and the same has not been committed by anybody else. We may also notice that there is tendency among the in-laws to involve daughter-in-law so that she can be deprived of her right to maintenance and to succeed to the estate of deceased husband or she is not able to seek share in the family property. In the present case, after twenty days of the occurrence the witnesses regarding last seen were introduced and skeleton i.e. the bones were recovered after two months of occurrence. From the bones prosecution has failed to prove the identify of the dead body. Underwear and vest purportedly recovered from the dead body were not identified by the father of the deceased.

We may also notice here that Sangeeta in her statement recorded under Section 313 Cr.P.C. has taken a specific stand that Chandrabhan had never came to her parental house for taking her to the house of her in-laws. Thus, it was incumbent for the prosecution to lead evidence to the effect that Chandrabhan had gone to the village of parents of Sangeeta by examining any witness from native village of Sangeeta. No neighbour, member of Panchayat of village of parents of Sangeeta has been examined. The prosecution examined no witness to say that Chandrabhan had reached to the parental village of his wife to bring her back. For this, we have to rest upon the solitary statement of Suresh (P.W.13) who had not gone to the village of in-laws of his son on the date of occurrence. Suresh has made self serving statement before the court.

Taking totality of the circumstances, we are of the view that the prosecution could not prove the chain of circumstantial evidence against Sangeeta wife of the deceased to arrive at the conclusion that she alone has committed the offence.

Hence, we accept D.B. Criminal Appeal No. 703/2009 preferred by Sangeeta and acquit her of the charges framed against her by setting aside the judgment of conviction and sentence.

Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Sangeeta, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Apex Court.

Once we disbelieve the prosecution case qua Sangeeta, there is no reason for us to upset the acquittal of Matadeen and Keshav as the trial Judge rightly came to the conclusion that the prosecution has not led sufficient evidence to secure their conviction.

Hence, D.B. Criminal Appeal No. 506/2010 preferred by the State is also dismissed.