MATHUR, J. - (1.) THESE two appeals are directed against the judgment dated 4. 10. 1996 convicting the appellant Ramniwas of offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment to further undergo six months rigorous imprisonment. He has also been convicted for offence under Section 324 IPC and sentenced to three years rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment to further undergo three months rigorous imprisonment.
(2.) THE appellant Ramniwas was put to trial on the charge of murder of one Shambhoo Dayal and causing injuries to PW-2 Matadeen, PW-3 Shiv Lal and PW-7 Gheesa Ram. It is alleged that in the intervening night of 30. 5. 1992 and 31. 5. 1992 at about 2. 15 AM, while deceased Shambhoo was sleeping in front of his house, appellant Ram Niwas gave a kulhari blow on his neck, resulting into his instantaneous death. Hearing the abrupt out cry his wife Smt. Chhoti came out of the room and witnessed the incident. Her distress call attracted PW-4 Kailash and PW-9 Kartar. THE appellant seeing them ran away towards the street. Her husband was taken to the hospital where he was declared dead. It is also alleged that after committing the murder, the appellant caused injuries to PW-2 Matadeen, PW-3 Shivlal and PW-7 Gheesa Ram, who were sleeping outside their houses. It is further alleged that PW-2 Matadeen, PW-22 Mannalal, PW-24 Kailashchand and PW-25 Rajendra who were playing cards, seeing the appellant coming towards them with Kulhari in hand, raised voice. THE appellant threw kulhari and ray away. THE information of the incident was given to the S. H. O. Police Station Kotputli by PW-19 Jamanlal at 3. 15 AM vide Exhibit P-22. On this information police registered a case for offence under Section 302 and 307 IPC and proceeded with the investigation. THE appellant was arrested on the same day at 9. 30 AM vide exhibit P-9. At the time of arrest the police found blood stains on his shirt. THE shirt was seized vide exhibit P-8. A blood stained lathi was also recovered vide exhibit P-17. A blood stained earthen pot of liquor was also recovered vide exhibit P-18. THE blood stained axe was seized vide exhibit P-28. THE post mortem of the dead body was performed vide exhibit P-25. After investigation police laid charge sheet against the accused appellant for offence under Section 302 and 324 IPC. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 30 witnesses and produced certain documents. The appellant in his statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him. He stated that he has been falsely implicated. In defence he examined DW-1 Smt. Patasi, DW-2 Vinod, DW-3 Suresh and DW-4 Ratan. Analysing the evidence, the trial court found the charges levelled against the appellant proved. Accordingly, convicted and sentenced in the manner noticed above. We have heard Mr. Biri Singh, the learned counsel for the appellant and Mr. R. S. Aggarwal. Public Prosecutor and perused the record. In order to better appreciate the prosecution case it will be convenient to read the sequence of the incident as follows:- I. Incident causing murder of Shambhoo Dayal. II. While running away after committing the murder of Shumbhoo Dayal appellant causing injuries to PW-2 Matadeen, PW-3 Shivlal and PW-7 Gheesa Ram by Kulhari. III. After second incident, appellant running towards PW-22 Manna Lal, PW-24 Kailash Chand and PW-25 Rajendra who were playing cards and threw kulhari. IV. Causing damage to property of people on road in the night. V. Returning to the house of maternal uncle, under influence of liquor. The prosecution has examined PW-1 Smt. Chhoti as an eye witness, but a careful reading of her statement shows that she is not an eye witness. Therefore, there is no direct evidence in this case. The prosecution has relied upon the following piece of circumstances against the appellant:- (i) Hearing the out cry of deceased Shambhoo Dayal PW-1 Smt. Chhoti came out and saw her husband injured in pool of blood. The accused was standing nearby armed with a blood stained kulhari. (ii) In the intervening night of 30th and 31. 05. 1992, during the period 2. 15 to 3. 30 AM, appellant caused injuries to many persons and damaged property. (iii) The appellant failed to explain presence of blood spots on his shirt. (iv) Recovery of kulhari, blood stains on pot of liquor. It is well settled that in the case of circumstantial evidence it is for the prosecution to establish the various limbs in the chain of evidence by a cogent evidence and such circumstance must point towards the guilt of the accused with reasonable definiteness and further the circumstances must be prolimit to the time and situation. FIRST CIRCUMSTANCe
(3.) PW-1 Smt. Chhoti is the wife of deceased Shambhoo Dayal. She stated that on the date of incident her husband was sleeping outside the house on a cot. She was sleeping inside and the door of the room was open. At about 2. 00 or 2. 30 AM, she was awakened hearing the out cry of her husband. She came out and found the appellant standing with a kulhari in his hand. The appellant gave kulhari blow on the neck of her husband. She raised hue and cry which attracted PW-4 Kailash and PW-19 Jamanlal. She also stated that at the time of incident the accused was wearing a pant and shirt. Seeing them he ran away towards the street. Jamnalal and Kailash took her husband to the hospital where he was declared dead. In the cross examination, it is admitted that she reached on the spot after hearing the out cry of her deceased husband. Before her arrival the appellant inflicted a kulhari blow on her husband. She stated that after seeing her. he ran away. She categorically stated that she had seen the appellant standing after causing injuries to her husband by kulhari. She stated Esus eqyfte dks dqygkm+h dh ekjus ds ckn [km+s gq, dks vpnh rjg ls ns[k fy;k Fkk** Smt. Chhoti cannot said to be an eye witness, because as per her own admission, she arrived on the spot after the fatal blow was given to the deceased. However, just after the incident she had seen the deceased Shambhoo lying in pool of blood and the appellant standing nearby armed with a kulhari. This fact is relevant under Section 8 of the Evidence Act. PW-1 Smt. Chhoti identified the appellant in the court as well as in the identification proceeding. The appellant was arrested on 31. 5. 1992 itself vide exhibit P-9. An identification parade was arranged in presence of PW-29 Bhawan Goyal, Munsif and Judicial Magistrate, Kotputali at the relevant time. He has stated that the identification parade was arranged in the sub-jail, Kotputali on the request of the police. He also stated that the identification parade was arranged in accordance of the prescribed procedure. He followed all the necessary procedure and took precautions. He has proved the identification memo exhibit P-30. PW-1 Chhoti correctly identified the appellant. Mr. Biri Singh has criticized the evidence of identification on the ground of delay. It is submitted that while the appellant was arrested on 31. 5. 1992 the identification parade was arranged as late as on 17. 6. 1992. It is submitted that there is no explanation for the delay in conducting the identification parade. The learned counsel has also invited our attention to the statement of PW-25 Rajendra wherein he admitted that the accused was shown to him by the police prior to the identification parade. It is submitted that there is no guarantee if the police could show the appellant to PW-25 Rajendra, they could also shown to PW-1 Smt. Chhoti. The learned counsel has relied upon a decision of the Apex Court in Shambhoo Dayal vs. Subhash Chandra (1 ). In the said case the explanation given by the Investigating Officer for delay in arrananging the identification parade was not found reliable and as such the evidence of identification was rejected. In Shambhoo Dayal's case the Investigating Officer stated that he did not made request to the learned Magistrate for arranging the identification parade as one of the accused Dalchand was admitted in the hospital. The court on scrutiny of the material on record found that he was discharged from the hospital much earlier than the date given by the Investigating Officer. In view of this, the explanation given by the Investigating Officer was found to be false. In the instant case no question has been put to the Investigating Officer in his cross examination for delay in making request for arranging the identification parade. PW-30 Amar Singh who investigated the case has stated that the appellant was kept `baparda' throughout. There is no suggestion to Smt. Chhoti, if appellant was shown to her before identification parade. In this part of the country, normally as a custom a widow does not go out of the house for one year and in no case before 12 days. If she could not leave house for 12 days, as per custom, where was the question of going to Police Station to see the accused. Explanation could come only when question pertaining to delay was put to the Investigating Officer. Thus, simply because PW-25 Rajendra states that he had seen the appellant prior to the identification it cannot be said that Mst. Chhoti had also seen the appellant prior to the identification parade. In view of this, the authority cited by the learned counsel does not advance the case of the appellant. The statement of Smt. Chhoti also finds corroboration from the medical evidence. There is injury on the neck caused by sharp edged weapon. PW-23 Dr. Mahesh Aggarwal has stated that he conducted the post mortem of the dead body of Shambhoo Dayal on 31. 5. 1992. He found the following injuries on the dead body:- Incised wound (spindle shape) 10 x 3 x 3 cm on the lift side of neck. Left sternomastoid left carotid artery and jugular vein are cut. The wound was filled with clotted blood. He has proved the post mortem report exhibit P-25. The learned counsel has also criticized the evidence of Smt. Chhoti on the ground that the prosecution has led two sets of evidence and as such none of the evidence is a trustworthy, on the basis of which the conviction of the appellant can sustained. The learned counsel has placed reliance on the decision of the Apex Court in Harcharan Singh vs. State of Haryana The contention deserves to be rejected outrightly being wholly misconceived. When prosecution leads two sets of evidence of the same incident which contradicts each other, there may be criticism of leading two sets of evidence, but in the instant case, the prosecution has led evidence with respect to the first part of the incident i. e. , murder of Shambhoo Dayal, by examining PW-1 Smt. Chhoti, PW-4 Kailash and PW-19 Jamanlal. Other evidence of PW-2 Matadeen, PW-3 Shiv Lal, PW-7 Gheesa Ram, PW-22 Manna Lal, PW-24 Kailash Chand and PW-25 Rajendra are of the second and third incident. Thus, by no stretch of imagination this can said to be a case of leading two sets of evidence. Therefore, the contention raised by the learned counsel for the appellant is rejected. PW-1 Smt. Chhoti has identified the appellant in the identification proceedings as well as in the court. Her testimony is corroborated by the prompt FIR as well as the medical evidence. Her statement also finds corroboration from the statement of PW-4 Kailash. PW-4 Kailash has stated that hearing the out cry of Smt. Chhoti, he reached on the spot and found deceased Shambhoo Dayal lying with cut injury on neck. There was profuse bleeding. He found appellant running away from the spot with kulhari in hand. There is no reason to disbelieve the testimony of PW-1 Smt. Chhoti. She is a witness of sterling worth. Thus, the first circumstance is of conclusive nature. This single circumstances, alone is sufficient leading to the irresistible conclusion that it was the appellant Ram Niwas and Ram Niwas alone, who committed the murder of Shambhoo. SECOND CIRCUMSTANCe ;