VIJAY PRAKASH PATHAK,J. - (1.) THIS criminal appeal has been directed against the Judgment and order dated 3.8.2006 passed by Additional Sessions Judge / FTC ? I Ghaziabad in Sessions Trial No. 753 of 2004 convicting the appellant Nirankar Sharma for the offence punishable under Section 302 of IPC and sentencing him for life imprisonment and a fine of Rs. 6,000/- and in default of fine, to further undergo a sentence of one year. The brief facts are that Prem Raj, (P.W.1) submitted a handwritten report dated 15.1.1993 to Police Station ? Garh Mukteshwar, District ? Ghaziabad, alleging therein that in his village Khilwai, the house of Sukhveer Singh was lying vacant and since about five months, driver Nirankar Sharma (accused) was residing there along with his wife Smt. Anita and son Soni aged about five years. For the past three days, the outer door of the house was open and the inner door was shut and a lock was hanging on it. It is further alleged that Smt. Anita and her son Soni had not been seen since then and when in the evening it appeared that stink was emanating from the house, then he and other villagers opened the inner door and saw the dead body of Smt. Anita and her son Soni lying on the cot. It is also alleged that it appeared that someone had murdered them.
(2.) ON the basis of the said written report, an FIR was lodged at Police Station Garh Mukteshwar as Case Crime No. 24 of 1993, under Section 302 of IPC on 15.1.1993 at 00.15 O' Clock against unknown culprits. The investigation of the matter was handed over to Satya Pal Singh, Station Incharge, Police Station- Garh Mukteshwar. The panchayatnamas of the dead bodies of Smt. Anita and Soni were prepared by Sub-Inspector Gopi Chand and postmortem was got conducted. ON 15.1.1993 at 11.15 a.m. the accused / appellant Nirankar was taken to the Police Station by Raj Pal (P.W.3) and Devi Saran of the village and was handed over to the custody of the police on the basis of extra judicial confession made by him before the said persons. He also made confession before the police about his guilt in committing the murder of Smt. Anita and her son Soni due to his wife having illicit relations with some other person. During investigation, the statement of the witnesses were recorded and on the pointing out of the appellant Nirankar, the rope, used in committing the murder was recovered from the house of the accused and fard of the said recovery was prepared. After completing the investigation, charge sheet under Section 302 of IPC was submitted by the Investigating Officer in the Court. In support of the prosecution as many as seven witnesses namely Prem Raj, P.W.1, Dinesh Kumar, P.W.2, Rajpal, P.W.3, Bablu, P.W.4, Mool Chand, P.W.5, Dr. J.K. Verma, P.W.6 and Sub-Inspector, Satya Pal Singh, P.W.7 were examined. In documentary evidence, the prosecution produced written report Exhibit Ka-1, panchayatnama of the dead body of deceased Smt. Anita, Exhibit Ka-2, panchayatnama of the dead body of Soni, Exhibit Ka-3, postmortem report relating to dead body of Smt. Anita, Exhibit Ka-4, spot map, Exhibit Ka- 5, recovery memo of rope, Exhibit Ka-6, spot map of recovery, Exhibit Ka-7, charge sheet, Exhibit Ka-8, Chik FIR, Exhibit Ka-9 and copy of GD No.4 dated 15.1.1993 regarding registering of the case, Exhibit Ka-10. The other papers like postmortem report of dead body of deceased Soni, Exhibit Ka-11, Police Form No. 13, Exhibit Ka-12, letter to CMO for postmortem, Exhibit Ka-13, Photo of dead body of deceased Anita, Exhibit Ka-14, Namoona Seal, Exhibit Ka-15, letter to CMO for returning clothes of deceased Anita, Exhibit Ka-16, Form No. 33, Exhibit Ka-17, Form No.13 relating to deceased Soni, Exhibit Ka-18, letter relating to return of clothes of deceased Soni, Exhibit Ka-19, letter to CMO for postmortem and dead body of deceased Soni, Exhibit Ka-20, letter to R.I., Exhibit Ka-21, photo of dead body relating to deceased Soni, Exhibit Ka-22, namuna seal relating to Soni, Exhibit Ka-23 and form No. 33 relating to deceased Soni, Exhibit Ka-24 were also produced. The formal proof of the said Exhibits No. 11 to 24 were admitted by the counsel for the accused. P.W.1, Prem Raj is the first informant who got lodged the FIR. He has stated that the accused Nirankar had been residing in the house of Sukhveer Singh as tenant since September-October 1993 (it appears that under confusion 1993 was written instead of 1992) along with his wife Anita and son Soni. Since the night of 12.1.1993, he had not seen Anita and Soni and the outer door of the house was open, whereas, the inner door was shut and a lock was hanging on it. ON 15 January, 1993, stink was coming from the house, then he and other people of the Mohalla opened the door and found the dead bodies of Anita and Soni lying on a cot. This witness has further stated that Nirankar was last seen by him 3-4 days earlier when the dead bodies were recovered. He was a Bus Driver. This witness, Prem Raj, (P.W.1), in his cross-examination has stated that he knew the accused Nirankar since six months before the incident and when on the last occasion he saw him going from his house, thereafter he did not see Anita and Soni alive. He has further stated that Nirankar was doing the work of Driving and some times, he returned to his house in two days, some times in four days and some times even on the very next day. He has also stated that he did not see Nirankar killing his wife. P.W.2, Dinesh Kumar is a witness of panchayatnama, who has stated that the panchayatnamas of the dead bodies of deceased Anita and Soni were prepared by Sub-Inspector before him. His signature is there on the panchayatnama and according to the opinion of the Panchan it was found that deceased Anita and Soni were murdered by strangulation. P.W.3, Rajpal is the witness of extra judicial confession made by the appellant Nirankar. This witness has stated that the incident had taken place about 12 years ago when driver Nirankar was residing along with his wife and son in the house of Sukhveer Singh of his village. The wife and son of Nirankar were not seen since 2-3 days and when stink started coming from the house, the villagers opened the door and saw that the dead bodies of wife and son of Nirankar were lying on the cot, for which the report was got lodged by Prem Raj of his village at Police Station. After the lodging of the report the police came to the village and prepared panchayatnamas of the dead bodies and the same were sent for postmortem. Subsequently, Nirankar came to his house and after packing his belongings when he started to leave with his luggage, at 10.00 a.m., before him, Devi Saran and other villagers then they asked him that where was he going with his luggage when the dead bodies of his wife and son had been sent for postmortem. On this Nirankar told them that his wife had gone to the farmhouse of his uncle and when she did not return for many days, he went there to see her, where he saw her in a bed along with a servant of the farmhouse. Seeing the said situation he returned without saying a word and when his wife came back to his house, he also came to the village in the evening on 12.1.1993 with his Bus and in the night, he killed his wife and son by strangulating them. He also said that he had committed a wrong. After giving the said statement and supporting the prosecution case on 16.3.2005, this witness, Rajpal, P.W.3, again came before the Court on 29.4.2005 for cross-examination as the case was adjourned on the application of the accused on 16.3.2005 and in his cross examination, he became hostile and did not support his earlier statement dated 16.3.2005. He has stated that the day on which the dead bodies of Nirankar's wife and son were found, Nirankar was not at the house. He had gone 2-3 days earlier and he had seen him going from his house. This witness has also stated that Nirankar used to come to his house after a gap of many days and that between the day when Nirankar had left his house and the day when the dead-bodies of his wife and son were found, he had seen his wife and son. He had seen Nirankar going in a normal state. He has further stated that he had not seen Nirankar killing his wife and son and he had neither seen any quarrel between Nirankar and his wife, nor heard so. This witness has admitted the report to have been lodged by Prem Raj but has denied giving any statement before Sub-Inspector and said that he does not know whether Nirankar's wife had illicit relations with anyone or not. On cross-examination by ADGC (Crl.), this witness Rajpal, P.W.3 has accepted his earlier statement made during examination-in-chief to be true but has further stated that Nirankar had not told him that his wife was found sleeping with a servant at his uncle's farmhouse. Nirankar had also not told him about killing his wife and son in the night of 12.1.1993 by strangulation. This witness has further stated that on the earlier occasion he had given a wrong statement and today he is giving a true one. P.W. 4, Bablu has also not supported the prosecution version and has become hostile. P.W.5, Mool Chand, who is the witness of recovery of rope has also not supported the prosecution version and has stated that no rope was recovered before him, by the police from near the dead body of the deceased Anita. This witness has identified his signature on the fard of recovery of rope but has stated that no fard was written in his presence and his signature was taken on plain paper. Although this witness has become hostile but in cross-examination he has accepted that when on the last occasion he saw accused Nirankar going from his house, thereafter, he did not see his wife and child. P.W.6, Dr. J.K. Verma has stated that he had conducted the postmortem of the dead body of deceased Anita on 15.1.1993 at 4.00 P.M. and found the age of Anita to be about 28 years. He has further sated that rigor mortis was present on her body and death was caused one and a half days earlier. He has also found ligature mark, 30 cm. X 1cm., extending around her neck between chin and thyroid cartilage and cause of death is shown to be asphyxia due to ligature mark. This witness has further stated that the said postmortem is in his hand writing and his signature is there on it. The postmortem of the dead body of Soni was also conducted by Dr. J.K. Verma. The formal proof of the said postmortem report has been accepted by the learned counsel for the appellant. According to said postmortem report, ligature mark, 20 c.m. X 1 c.m. extending around neck between chin and thyroid cartilage was found and cause of death is shown to be asphyxia due to antemortem injuries. P.W. 7, Sub-Inspector, Satya Pal Singh, the Investigating Officer of the case, has stated that after lodging of the FIR he had gone to the spot and got prepared panchayatnamas of the deceased by S.I. Govind. He inspected the spot on the pointing out of the informant and prepared the site plan. On 15.1.1993 itself, at 11.15 a.m. accused Nirankar Sharma was got produced in the police station by Rajpal Singh and Devi Saran. He had interrogated the accused and went along with him and other officials to village Khilwai, place of incident and on the pointing out of the accused, a rope was recovered and fard was prepared before witnesses Mool Chand, (P.W.5) and Gajendra and he also prepared site plan of the place of recovery and after completing the investigation he submitted charge sheet. The appellant Nirankar Sharma in his statement under Section 313 Cr.P.C. has completely denied the committing of murder by strangulating his wife and son and has also stated that the witnesses Premraj, (P.W.1) and Rajpal, (P.W.3) had wrongly deposed. He has further stated that the investigation was wrongly made and the case has falsely proceeded against him. He has not produced any evidence in his defense. Heard Sri R.K. Shukla and Sri R.B. Sharma, learned counsels for the appellant and Sri Sagir Ahmad, learned AGA.
(3.) LEARNED counsel for the appellant has contended that there is no eye account of the alleged incident and from circumstantial evidence the appellant cannot be connected with the offence of killing of his wife and son. He has also contended that the prosecution witness Rajpal, (P.W.3), who was a witness of extra judicial confession and Mool Chand, (P.W.5), the witness of alleged recovery of rope have become hostile and have not supported the prosecution version. It is also contended that the appellant had no motive to commit the murder of his wife and son. It is also contended that the medical evidence is also incompatible with the prosecution version and thus the guilt of the accused could not be proved beyond reasonable doubt. LEARNED AGA has contended that the evidence produced by the prosecution has fully proved the charge levelled against the appellant for committing the murder of his wife and son. It is also contended that the circumstantial evidence adduced by the prosecution are fully consistent and reliable to prove the guilt of the appellant. In this matter there is no evidence of eye account regarding the incident and the entire matter rests on circumstantial evidence. For proving the guilt of the accused on the basis of circumstantial evidence, certain tests must be satisfied. The Hon'ble Apex Court in Padala Veera Reddy V. State of A.P. and Ors, AIR 1990 SC 79, has laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstance, 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The Hon'ble Supreme Court in State of Rajasthan Vs. Rajaram reported in AIR 2003 SC 3601 has held that conviction solely on the basis of circumstantial evidence is permissible and inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The Hon'ble Apex Court, in the aforesaid verdict in paragraphs 8 and 9 has observed as follows:- "Circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed." "Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." In case of C. Chenga Reddy and Ors. v. State of A.P., J.T. 1996(7) SC 397, the Hon'ble Supreme Court has been pleased to give the following observations:- "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 circumstance 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......" ;