- (1.) KAMAL Kishore, J. Criminal Revision No. 76/99 as well as Criminal Appeal Nos. 156 and 157 of 1999 have been preferred against the judgment and order dated 11-1-1999 passed by Sri Shamshad Ali, the then III Additional District & Sessions Judge, Sultanpur, hence the criminal revision as well as criminal appeals are being decided by a common judgment.
(2.) THE case of the prosecution, in brief, is that the deceased Km. Manorama, aged about 6 years, is the cousin sister of the informant Umesh Pratap Gupta. Both the convict appellants Jai Shree Yadav and Dhani Ram belong to the same village. Accused Smt. Sukhraji is the wife of convict Dhani Ram, while accused Smt. Dukhana is their daughter. Accused Smt. Dukhana was issue less and was trying to have issue. She took the help of convict Jai Shree Yadav, who used to do OJHA (a worship for removing evil spirit ). It was the period of 'nav RATRA'. THE accused Smt. Dukhana came to the house of her father Dhani Ram where the convict Jai Shree Yadav was summoned, who used to do Tantran- Mantran so that Smt. Dhukhana may be get a child. THE victim Manorama went to see television as usual. She had not returned on the day of occurrence, hence the informant side had search for her. It was on the fourth day of her since she was missing. Khelayee (PW 7) told regarding the murder of Manorama on which the informant reached the place of occurrence and found that some one has committed her murder with motive to commit sacrifice (BALI ). THE FIR (Ext. Ka-1) regarding the occurrence was lodged by the informant Umesh Pratap with the police station Lambhua within District Sultanpur on the basis of which chick FIR (Ext. Ka-5) was prepared. THE case was investigated by Sri Ram Naresh Yadav (PW 13) S. O. of P. S. Lambhua, District Sultanpur, who has got the dead-body sealed and sent the same to mortuary for post- mortem and prepared the site-plan (Ext. Ka-11 ). Sri Ram Naresh Yadav (PW 13) SC has recorded the statement of the witnesses and has submitted the charge-sheet (Ext. Ka-13) after completing the investigation. The charge was framed against all the four accused persons for the offences punishable under Sections 302/34 and 201 IPC. The accused pleaded not guilty to the charge framed against them. After full trial, the Additional District & Sessions Judge, Sultanpur has convicted Jai Shree Yadav of Criminal Appeal No. 156 of 1999 and Dhani Ram, who has preferred Criminal Appeal No. 157 of 1999 and has acquitted both the ladies accused Smt. Sukhraji and Smt. Dukhana for the aforesaid offences. Feeling aggrieved by the conviction, the accused have preferred both the aforesaid criminal appeals and the complainant has preferred Criminal Revision No. 76 of 1999. We have heard the arguments of parties' Counsel in the aforesaid revision as well as the appeals preferred by the convicts.
(3.) NONE of the witnesses, examined by the prosecution, is alleged to have seen the occurrence of murder and the prosecution has believed its case on circumstantial evidence mainly extra- judicial confession made by the convicts Dhani Ram and Jai Shree Yadav and recovery made under Section 27 Evidence Act on the instance of both convicts, coupled with the motive etc. It has been held by the Hon'ble Supreme Court in the ruling reported in 1976 SCC (Crl.) p. 120, Chand Mal & another v. State of Rajasthan, that when a case rests entirely on circumstantial evidence must satisfy three tests : Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be firmly and cogently established. Secondly, these circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probabilities; the crime was committed by the accused and none-else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of accused's guilt. Thirdly, the circumstances should be of a definite tendency unerringly pointing towards the guilt of accused.;