GANGA BAIversusSTATE OF RAJASTHAN

                     [2015) 9 S.C.R. 343


                         GANGA BAI                             A
                              V.
                  STATE OF RAJASTHAN
             (Criminal Appeal No. 1245 of2009)
                   SEPTEMBER 30, 2015                          B

        (T.S. THAKUR AND KURIAN JOSEPH, JJ.]
        Penal Code, 1860 - s. 304 r/w s. 34 and 201 -
  Prosecution under- Of appellant-accused - Alongwith two
  other accused- Conviction of all three accused by trial court C
  - High Court affirmed the conviction of appellant-accused,
  while acquitting the other two accused giving them benefit of
. doubt - Appeal by convicted accused - Held: The
  circumstantial evidence against the appellant-accused
                                                                0
  formed an unbroken chain which led to only one hypothesis
  i.e. her involvement in the offences ulss. 302 and 201 - Non-
  explanation in s. 313 Cr.P.C. statement of the appellant
  regarding presence of human blood on her clothes also goes
  against the appellant - The appellant cannot be acquitted E
  on parity with other accused, because there is clinching
  evidence against her proving her involvement in the crime -
  Code of Criminal Procedure, 1973 - s. 313 - Evidence -
  Circumstantial Evidence.
                                                                F
        Dismissing the appeal, the Court

    HELD: 1.1 The evidence against the appellant-
accused formed an unbroken chain which led only to
one hypothesis, viz., the involvement of the appellant
in the offences ulss. 302 and 201 IPC. Even uls. 313 G
Cr.P.C. statement, the appellant did not have any
explanation on the presence of human blood stains on
her clothes which were duly recovered on her disclosure.
                             343                               H
344        SUPREME COURT REPORTS                  [2015] 9 S.C.R. '


A     [Para 11) [348-0,E]

         Nana Keshav Lagad v. State of Maharashtra 2013 (12)
      SCC 721: 2013 (10) SCR 606 - relied on.

          1.2 Merely because one or more of those charged
 8
      with the substantial offences and also charged u/s. 34
      IPC have been acquitted, the one in the group who
      shared the common intention, in whose case there is
      conclusive evidence of direct involvement, cannot claim
c     parity. In the present case, in view of the clinching
      evidence as regards the involvement of the appellant
      in the offences of murder and destruction of evidence
      charged against her, she is not entitled for a similar
      treatment as that of co-accused 'U', only because he
o     was acquitted by the High Court. [Para 13) [350-F-H; 351-
      A]

          1.3 The High Court has granted permanent parole
  to the accused. It is clarified that dismissal of the present
E appeal shall not, in any way, affect either the permanent
  parole or commutation of the sentence of the appellant-
  accused. [Para 15] [351-D]

      2. The co-accused 'U', whose clothes were duly
F recovered, also contained stains of human blood, for
  which also, there was no explanation and he had also
  given disclosure on the recovery of weapon of offence.
  Though the acquittal made by the High Court in his
  case, could require a revisit, in view of the fact that there
G is no appeal by the State against his acquittal and that
  the incident is of the year 1999, the Court does not
  propose to pursue the matter as against accused 'U'.
  [Para 13] [350-E-F]
                       Case Law Rererence
H
          2013 (10) SCR 606          relied on.        Para 12
           GANGA BAI v. STATE OF RAJASTHAN                           345


    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal                   A
No. 1245 of2009.

    From the Judgment and Order dated 14.11.2006 of the
High Court of Rajasthan at Jodhpur in DBCRL No. 74 7 of 2003.
                                                                      B
     Rohit Minocha, Vishwanath Pratap Singh for the Appellant.

     Milind Kumar for the Respondent.

     The Judgment of the Court was delivered by
                                                                      c
     KURIAN, J. 1. The appellant-Ganga Bai was tried before
the Additional Sessions Judge, Nimbahera, Rajasthan along
with one Udai Lal and Oaulat Ram under Section 302 read
with Section 34 and Section 201 of the Indian Penal Code (45
of 1860) (hereinafter referred to as 'IPC') for the murder of her.    o
daughter-in-law and her two minor children. All the three were
convicted under Section 302 IPC and were sentenced to
undergo life imprisonment. There was also a sentence of fine
with default clause.
                                                                      E
    2. In appeal, the High Court acquitted Udai Lal and Dau lat
Ram holding that the offences against them were not proved
beyond doubt. However, in the case of the appellant, the
conviction was confirmed with no modification in sentence.
                                                                      F
     3. The incident is of the year 1999. First Information Report
was registered on the complaint given by PW-29. It was stated
that while he was in the field gazing cattle, he heard PW-3
crying loudly of having seen a dead body of a lady lying in a
trench. Along with PW-4, they also found the dead bodies of           G
two children dumped in the trench. On 06.09.1999, the
appellant and Udai Lal were arrested, and Daulat Ram was
arrested on 09.09.1999. All of them were charged under
Section 302 read with Section 34 and Section 201 IPC.
                                                                      H
    4. Though at the trial, many of the witnesses turned hostile,
346         SUPREME COURT REPORTS                     (2015] 9 S.C.R.


A     the Sessions Court convicted all the accused holding that the
      circumstantial evidence, the evidence of recovery and the
      presence of blood stains on the clothes of appellant and Udai
      Lal, were sufficient to convict them for the offence under Section
      302 IPC. The High Court acquitted Udai Lal and Daulat Ram,
B     and hence, the appeal is only at the instance of Ganga Bai.

           5. It is contented that the conviction cannot be sustained
      since the chain of evidence on circumstantial evidence is not
      complete. It is further contended that Udai Lal, at whose
C     instance, one of the blood stained weapons, viz., dhariya was
      recovered, having been acquitted, the appellant also is liable
      to be acquitted.

           6. We have heard the Counsel appearing for the State
o     also.

          7. Th.e prosecution has relied on the following evidence:

          "(1)    The deceased was last seen in the company of
                  appellant Smt. Ganga Bai.
E
          (2)     The verification of place of incident at the instance
                  of appellant Smt. Ganga Bai.

          (3)    The recovery of weapon of offence namely Dharia,
F                spade and kulhari.

          (4)     Recovery of blood-stained clothes of appellant Smt.
                  Ganga Bai.

          (5)     Recovery of anklet of the deceased in pursuance
G                 of the information given by appellant Ganga Bai."

      8. It has come out in the evidence of PW-5-Shanti Devi,
  who is the wife of PW-6-Naresh Kumar, the !andlord of the
  deceased-Sunanda and her husband-Ratanlal (son of the
H appellant), that accused-Ganga Bai used to visit the deceased-
           GANGA BAI v. STATE OF RAJASTHAN                         347
                      [KURIAN, J.]

Sunanda in her room. The said witness stated that she had A
seen Sunanda with appellant before her disappearance. It has
also come out in her evidence that the appellant, after the
incident, came back to her, paid the rent and took away the
belongings of the deceased. PW-6- Naresh Kumar has
supported the version of PW-5. PW-7-is Sultana who has also B
stated that the deceased along with her children was seen
with the appellant in the market and the deceased had told her
that the appellant was taking them to Morvan. PW-8-husband
of Sultana has supported her version. Thus, on the basis of
the evidence of PWs-5 to 8, both the courts below have come C
to the conclusion that all the deceased were last seen with the
appellant.

      9. It has also come out from the evidence of PW-5 that
the appellant was not happy with the deceased for two reasons, D
viz., (i) she had already been married to another person and
he had left her with her two children born to him and (ii) she
belonged to a different caste. Therefore, ifthe appellant had
accepted them in their family, they would have been cast out
from the village. It is because of that only the deceased along E
witli her family had left the appellant's house and stayed in the
rented accommodation provided by PW-5. It has ::ilso come
out from her evidence that the deceased had given the phone
number of paternal house and family photo of the deceased F
along with her husband and children to her to be handed over
to her father in case she did not return. Yet another incriminating
circumstance is the conduct of the appellant, after the incident,
of settling the rent with PW-5 and removing belongings of the
deceased.                                                           G
     10. On the second circumstance on verification of the place
of incident by the appellant, the High Court rightly discarded
the same holding that the Police had already identified the
place where the dead bodies were dumped. The other                  H
circumstantial evidence against the appellant is on the recovery
348            SUPREME COURT R~PORTS                   (2015] 9 S.C.R.


A of weapon of offence. It has come in evidence that the recovery
  was effected only on the basis of the disclosure made by the
  appellant as per Exhibit-P67. It has come in evidence that
  Exhibit-P53-dharia contained human blood. The third piece
  of circumstantial evidence found against the appellant is the
B recovery of blood-stained clothes belonging to her as per
  Exhibit-P66-disclosure. The appellant could not give any
  explanation of the presence of human blood on her clothes
  recovered as per Exhibit-P52. Though the a~klet, said to be
  belonging to the deceased-Sunanda, was also recovered
C pursuant to her disclosure, the High Court has discarded the
  same on the ground that there was no proper identification.

             11. Having gone through the records, we find it difficult to
  be persuaded to take a different view on the evidence against
D the appellant which according to both the trial court and the
  High Court formed an unbroken chain which led only to one
  hypothesis, viz., the involvement of the appellant in the offences
  under Section 302 and Section 201 IPC. It has to be specially
  noted that even under Section 313 IPC statement, the appellant
E did not have any explanation on the presence of human blood
  stains on her clothes which were duly recovered on her
  disclosure.

           12. In Nana Keshav Lagad v. State of Maharashtra1,
F     this Court had an occasion to consider a similar situation. Since
      the factual background, as such, is also explained therein, we
      shall extract the relevant paragraph as such:

             "27. The other submission made on behalf of the
G            appellants Vl(as with reference to the human blood found
             on the clothes worn by A-1 and A-4. It was contended that
             the prosecution failed to satisfactorily establish through
             any independent evidence about the bloodstains found

H     1
          (2013) 12 sec 721
      GANGA BAI v. STATE OF RAJASTHAN                               349
                 [KURIAN, J.]

on the clothes of A-1, as well as the appellant in Crl. A. No.       A
1010 of 2008. In that respect instead of reiterating the
details, it will be sufficient to refer to the conclusion reached
by the trial court, while dealing with the said contention,
which is found in para 63. The relevant part of it reads as
under:                                                               B

"63. In the present case, the evidence of API Padwal in
this respect is not seriously challenged or shattered. After
all the accused were arrested under i:>anchnama and at
the time of arrest panchnama of accused Nana                         C
bloodstained clothes were seized. It is not in any way
contended or for that matter even whispered ttiat 10 API
Padwal was having any rancour against the accused or
he was motivated or interested in one-sided investigation
with the sole object of implicating the accused. As a.matter         D
of fact, the investigation in this case appears to be totally
impartial. When it transpired that two accused by name
Sandeep and Ganesh, the juvenile delinquent have not
taken part in the assault, their names were deleted from
the prosecution case by filing report under Section 169              E
CrPC. Therefore, here the investigation has proceeded
impartially a.nd it is also not even for the sake of it, is
suggested to API Padwal that, no such bloodstained
clothes were recovered from the accused Nana,
                                                                     Fi
moreover, as per the settled position of law, there is no
presumption ifl law that a police officer acts dishonestly
and his evidence cannot be acted upon. Therefore, here
the evidence of API Padwal is sufficient to prove the
recovery of the bloodstained clothes of the accused. His             G
evidence also goes to prove that all these articles,
bloodstained clothes, etc. were sent to CA and as per the
CA report, Ext. 61 the blood was detected on the clothes
of the accused and the deceased and this blood was
human blood .... In the present case, though the CA report,          H
350          SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A          Ext. 61 shows that, the said human blood was of Group B,
           CA report, Ext. 62 about the blood sample of the accused
           states that the blood group could not be ascertained as
           the results were inconclusive, moreover, there is no CA of
           the blood sample of the deceased to prove that he was
B          having Blood Group B. However, the fact remains that,
           the stains of human blood were found on the clothes of
           accused Nana and he has not explained how these
           bloodstains were on his clothes and therefore, as observed
           in this authdrity, it becomes one more highly incriminating
c          circumstance against the accused."

           In "fact, as rightly noted by the trial court, it was for the
           appellants to have explained as to how the clothes worn
           by them contained human blood. In Section 313
D          questioning, no explanation was forthcoming from the
           appellants. In these circumstances, the said contention
           also does not merit any consideration."

           13. The last contention is on parity. It is submitted that Udai
E     Lal, whose clothes were duly recovered, also contained stains
      of human blood, for which also, there was no explanation and
      he had also given disclosure on the recovery of weapon of
      offence. Though we find that the acquittal made by the High
      Court could require a revisit, in view of the fact that there is no
F     appeal by the State against the acquittal of Udai Lal and that
      the incident is of the year 1999, we do not propose to pursue
      the matter as against Udai Lal. However, we may state that
      only because Udai Lal was acquitted, in view of the clinching
      evidence on the involvement of the appellant in the offences of
G     murder and destruction of evidence charged against her, she
      is not entitled fora similar treatment as that of Udai Lal. Merely
      because one or more of those charged with the substantial
      offences and also charged under Section 34 IPC have been
H     acquitted, the one in the group who shared the common
            GANGA BAI v. STATE OF RAJASTHAN                          351
                       [KURIAN, J.]

intention, in whose case there is conclusive evidence of direct A
involvement, cannot claim parity.

     14. Thus, we respectfully agree with the concurrent findings
on the conviction and sentence of the appellant. We find no
merit in the appeal and the same is accordingly dismissed.            B

     15. It is brought to our notice that by virtue of the Order
dated 09.04.2014 passed by the High Court of Judicature for
Rajasthan, Jaipur Bench, Jaipur in D.B. Civil Writ Petition
(Parole) No. 3026 of2014, the High Court, taking note of the          c
fact that the appellant had served more than fourteen and a
half years of sentence in jail without parole and that she was
aged about 79 years, has granted her permanent parole. We
make it clear that dismissal of this appeal shall not, in any way,
affect either the permanent parole or commutation of her              o
sentence.

Kalpana K. Tripathy                              Appeal dismissed.