S. K. SHARMA, J. - (1.) CHARACTER of appellant Poonam as revealed in the instant case reminds us the Bengali word `heyali' which suggests some one who is a puzzle to other being inscrutable and imponderable. A woman with such proclivities is called `heyali'. Poonam who got married to Om Prakash (since deceased) made him to weep. With her new tricks she created confusion and started love making with her `devar' Shyam Singh (appellant ). With the help of Shyam Singh she made a plan to liquidate her husband Om Prakash. She persuaded Om Prakash to take her on scooter to Saiyad Baba's place at village `meer ka Basai for changing her `tabiz'. Shyam Singh and Dashrath Singh followed them in a truck. On pursuation of Shyam Singh and Poonam, Om Prakash agreed to come back on the truck. Poonam and OM Prakash got themselves alighted on the truck. Their scooter also got loaded on it. Shyam Singh who was driving the truck got it halted at a lonely place. Shyam Singh and Dashrath Singh then pushed Om Prakash on the road and inflicted knife blows on his person. As per the plan scooter was unloaded and leaving Poonam there Shyam Singh and Dashrath Singh fled away with the truck. Giving the incident a colour of accident Poonam then lodged false report with the averments that while she and her husband were coming on the scooter, a truck pushed them from behind and her husband was given beating by the persons who came in the truck. But the heartless play of Poonam tormented her veryself. She herself was entangled in the web knitted by her. In the course of investigation it was revealed that Poonam, Shyam Singh and Dashrath Singh were the real culprits and all the three shared common intention in committing murder of Om Prakash. Learned trial Judge vide judgment dated May 28, 2002 convicted and sentenced them as under :- U/s. 302/34 IPC : Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer simple imprisonment for one year. U/s. 201 IPC : Each to suffer rigorous imprisonment for five years and fine of Rs. 500/-, in default to further suffer simple imprisonment for six months. The substantive sentences were ordered to run concurrently. Since Dashrath Singh died during pendency of appeal, his appeal stood abated.
(2.) THE prosecution case as unfolded during trial is that on November 12, 1999 Poonam submitted a written report (Ex. P/45) at Police Station Behror to the effect that on November 11, 1999 at 3 PM she and her husband Om Prakash went to Saiyad Baba's place at Meer-ka-Basai on Scooter for changing `tabiz'. While returning in the night around 11-12 PM when they reached near Hanuman temple one truck hit the scooter from behind, due to which both of them fell down. THEreafter two persons got down of the truck and gave beating to her husband. She some how escaped by hiding herself behind the tree. THE persons after beating her husband went on the truck towards Alwar. AFter some time one jeep came from the side of Alwar. She got the jeep stopped and took her husband to hospital where he died at 2 PM. On that report a case was registered and investigation commenced. During the course of investigation it was revealed that Poonam married with Om Prakash on May 12, 1999 and they were residing in a rented room at Behror. Shyam Singh (Mausera Bhai of Om Prakash) had illicit relations with Poonam. Finding Om Prakash, a hurdle in the love making, Poonam and Shyam Singh made a plan to take Om Prakash to Meer-ka-Basai at Saiyad Baba on the pretext for making a talisman. Om Prakash and Poonam went through scooter No. UNP 5990. Shyam Singh and Dashrath followed them by vehicle Tata-407 bearing No. RJ 02/g 3268. While they were returning from Meer-ka- Basai the scooter was loaded in the vehicle Tata-407 and on the way near Roondh, a lonely place, they got the vehicle halted pretending to remove the defect. Shyam Singh and Dashrath pushed Om Prakash down and caused blows with rod and knife on his person and made him unconscious. thereafter they unloaded the scooter from the vehicle and fled away with their vehicle leaving poonam on the spot. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under sections 302/34 and 201 were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellant claimed innocence. No witness was however examined in defence. Learned trial judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. There is no eye-witness of the occurrence and the case is based on circumstantial evidence. The first circumstances against the appellants is that the death of Om Prakash was not accidental but homicidal. As per post-mortem report (Ex. P/19) following injuries were found on the dead body:- 1. Incised wound with blood clots 6cm x 1/2cm x muscle deep left mastoid region 2. Incised wound with blood clots 4cm x 1/2cm x muscle deep (transverse) let cheek at angle of mouth. 3 Incised wound with blood clots 5cm x 3/4cm x bone deep (transverse) chin of mandible 4. Incised wound with blood clots 5cm x 1/2cm x muscle deep sub mental region 5. Incised wound with blood clots 8cm x 3/4cm x muscle deep trachea incised move on Rt. side Neck at Thyroid region grievous sharp dangerous to life 6. Incised wound with blood clots 3cm x `/2cm muscle deep upper part of neck near to angle of mandible on Rt. side. Incised wound with blood clots 3. 5cm x 1/2cm x muscle deep just blow the inj. No. 6 8. Incised wound with blood clots 4. 5cm x 1/2cm x muscle deep post aspect of left hand. 9. Incised wound with blood clots 5cm x 3/4cm x muscle deep lower 1/3rd of Lt. Forearm including left wrist joint 10. Incised wound with blood blots 3. 5cm x 1/2cm x muscle deep Rt. shoulder 11. Incised wound with blood clots 2. 5 x 1/2cm x muscle deep base of Rt. little finger (Palmer aspect) 12. Abrasion 3. 5cm x 2. 5cm upper 1/3rd of Rt. forearm 13. Black eye left side 14. Incised wound with blood clots 1. 5cm x 1/2cm x skin deep middle phalanx of Lt. ring finger Dr. Mahesh Chand Agrawal (PW-11), who conducted autopsy on the dead body, opined that the cause of death was asphyxia due to injuries on trachea. Thus the prosecution is able to establish that death of Om Prakash was homicidal. The second incriminating circumstance against the appellants is that prior to his death Om Prakash was last seen in the company of the appellants. On November 11, 1999 Poonam and Om PRakash had gone to village Meer-ka-Basai at the place of Saiyab Baba on scooter No. UNP 5990 on the pretext of changing Tabiz. Appellant Shyam Singh and co-accused Dashrath followed them in vehicle Tata-407 bearing No. RJ 02/g 3268 and they also reached to Saiyad Baba's place. On returning back Poonam, Shyam Singh and Dashrath persuaded Om Prakash not to go on scooter but to load the scooter on the vehicle. On their pursuation the scooter got loaded on the vehicle Tata-407 and Poonam along with Om Prakash alighted on the vehicle which was driven by Shyam Singh. Shivtaj Singh (PW-7), in whose field Saiyad Baba's place situated, in the cross-examination deposed that Prakash along with his wife came on Scooter at Saiyad Baba's place. But the fact that on November 11, 1999 Poonam and her husband Om Prakash had gone to Saiyad Baba's place at Meer-ki-Basai on scooter and came back on Tata- 407 driven by Shyam Singh is established from the testimony of Constables. Rajendra Singh (PW-5), Vinodi Lal (PW-8) and Sujan Singh (PW-16) who deposed that on November 11, 1999 they were posted at Check-post Tatarpur Choraha and they were got written numbers of vehicles passed through the Choraha. According to them a vehicle Tata-407 bearing No. RJ 02/g 3268 came in the night from the side of Kherthal. IN the vehicle a woman and three men including the driver were sitting. The vehicle was driven by Shyam singh. On being asked they informed that they were coming from Meer-ka-Basai after visiting Saiyad Baba's place and going to Behror. A scooter was also loaded on the vehicle. About the scooter they told that it belonged to Prakash, who was sitting in the vehicle. Testimony of Rajendra Singh, Vinodi Lal and Sujan Singh gets corroboration from the Register Ex. P/43, wherein entry with regard to vehicle Tata-407 bearing No. RJ 02/g 3268 carrying four persons and one scooter coming from Meer-ka-Basai to Behror on November 11, 1999 and driven by Shyam Singh was made. Learned counsel for the appellant raised serious objection about the admissibility of the said document Ex. P/43, but we see no reason to doubt the genuiness of the register, which contains many other entries of the vehicles that were passed through Tatarpur Choraha. We also do not find any reason to discard the testimony of these witnesses. In our opinion they are trustworthy and their testimony could not be shattered even after searching cross- examination. Thus the prosecution is able to establish that Poonam and Om Prakash had gone on Scooter to Saiyad Baba's Place at Meer-ka-Basai and they came back on vehicle Tata-407 bearing No. RJ 02/g 3268, which was driven by Shyam Singh and the scooter belonging to Om Prakash got loaded on it and Poonam, Om Prakash and Dashrath were sitting on the vehicle. Third incriminating circumstance established by the prosecution is that Om Prakash was lying in injured condition on the road ahead Tatarpur Choraja. Near him a scooter was also lying down and Poonam was standing there. Sita Ram (PW-19) in his deposition stated that at 10 PM he was asked by Nand Ram Ola Pradhan (PW-15) to drop him in a jeep in his house. After dropping Nand Ram while he was coming back he found a person lying in an injured condition on the road and about ten steps ahead of him a scooter was lying. A woman was also standing there. On being asked as to what had happened the woman told him that injured person was her husband and while they were coming on scooter from Peer Baba, a truck pushed them from behind. Two persons thereafter got down of the truck and inflicted injuries on the person of her husband. She some how escaped and after the assailants had gone she came out of the bushes. Sita Ram took the woman with him and went to Nand Ram Ola. Thereafter police was informed. Police arrived at 1 AM and took the injured to the hospital. Statement of Sita Ram get corroboration from the testimony of Nand Ram Ola (PW 15) who stated that woman was weeping and saying that her husband had been given beating by a truckwala. Nand Ram Ola saw the injured person and scooter lying on the road. Satish Kumar IO (PW-14) got the scooter seized from the site by seizure memo Ex. P/9. Motbirs of recovery viz. Natthu (PW-1) and Nityanand (PW-3) support the recovery.
(3.) FOURTH incriminating circumstance established by the prosecution is that the report (Ex. P/45) lodged by Poonam about the accident of scooter, was found false. According to Satish Kumar IO (PW-24) Poonam submitted written report (Ex. P/45) to him at Behror hospital on which endorsement was made by him. In that report Poonam stated that while she and her husband were coming on the scooter, a truck pushed them from behind as a result of which she, her husband and scooter fell down. Two persons then got down of the truck and gave beating to her husband. At that time she got herself hidden behind a tree. After the assailants left, a jeep came. She narrated the incident to jeep owner who had called Pradhan. Information of the incident was communicated to police. Her husband was taken to hospital where he died. Scooter seized from the spot was mechanically examined by Dhanna Lal MTO (PW-13) and report (Ex. P/21) was drawn. As per the said report no marks of accident were found on the scooter. Even Poonam did not sustain any injury. The comes the fifth incriminating circumstance of recovery of coloured photographs of Poonam and Shyam Singh at the instance of Poonam. Satish Kumar IO (PW-24) deposed that on the basis of disclosure statement of Poonam he got recovered nine photographs of Poonam and Shyam Singh vide recovery memo (Ex. P/17 ). The photographs were marked as Ex. P/33 to P/41. Negatives of photographs were also got exhibited. In the explanation under section 313 Crpc Poonam admitted that she and Shyam singh were together in the photographs but they were taken at the time of her marriage. Their relation was of `devar-Bhabhi'. Shyam Singh also admitted in his statement under section 313 Crpc that it was he and Poonam in the photographs. But Shyam Singh did not say that they were taken at the time of Poonam's marriage. We have closely scanned the photographs. In the photos Ex. P/33, P/34 and P/35, Poonam and Shyam Singh are standing close and right hand of Poonam is hanging on the shoulder of Shyam Singh, Poonam is dressed in skirt and top. Except the two, there is no other person in the photographs. Anybody at the first blush of the photographs, can form opinion that the man and woman in the photographs are either husband and wife or lovers. In the village area like Behror, no Bhabhi could ever dare to come so close to her Devar. Nirmal (PW-21) who is a photographer deposed that Poonam and Shyam Singh came to his shop on July 19, 1999 and got the photographs snapped. Thus the explanation given by the appellants in their statements under section 313 Crpc are found false. There are many other circumstances like recovery of knife, blood stained clothes of Shyam Singh and blood stained stepney of vehicle Tata-407 and even if we ignore these circumstances, we find that five circumstances established by the prosecution are of conclusive nature and they unmistakably point to the only conclusion that the appellants and no other perpetrated the alleged crime. Facts established by the prosecution are consistent only with the hypothesis of the guilt of the appellants and the chain of evidence is complete not to leave any reasonable ground for the conclusion consistent with the innocence of the appellants. Learned counsel for the appellants took us to the various case-laws relating to the circumstantial evidence. We agree with the principles annunciated in the authorities. the facts of the authorities cited before us are distinguishable. The accused in these authorities were acquitted on the ground that there was snap in the chain of circumstantial evidence. The disclosure statement under section 27 Evidence Act and consequential recovery in these cases were found doubtful. In the instant case the findings arrived at by the learned trial Court are based on the touchstone of dispassionate judicial scrutiny based upon all features of the facts as well as quality and credibility of the evidence brought on record. Charges under sections 302/34 and 201 IPC, in our considered opinion, are established against the appellants beyond reasonable doubt. ;