MATHUR, J. - (1.) IN both these appeals arising from the judgment of the learned Additional Sessions Judge dated 28. 2. 2006, appellants Thavra and his wife Dhanki have been convicted of offence under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 2000/- each and in default, to further undergo three months' simple imprisonment on the charge of murder of one Kalu. They have also been convicted of offence u/s. 201/34 IPC and sentenced to two years' simple imprisonment with a fine of Rs. 1000/- each and in default, to further undergo two months' S. I. The cause of murder is said to be the act of deceased Kalu, who alleged to have committed rape on appellant Mst. Dhanki.
(2.) THE prosecution case as disclosed during trial is that on 27. 2. 2005, a dead body was found on the bank of river viz; ``kotda Mahuda''. THE dead body was identified as that of one Kalu. THE information of the incident was given to the S. H. O. , Police Station, Nai. THE police registered a case for the offence u/ss. 302, 201 IPC and proceeded with investigation. During investigation, the police arrested appellants. After usual investigation, the police laid chargesheet against both of them for the offence u/ss. 302, 201/34 IPC. THE prosecution sought to prove the case relying on the following piece of circumstances: (i) Utterances of appellant Thavra to finish deceased Kalu for having committed rape on his wife on the preceding night; (ii) Recovery of blood stained ``kulhari'' from the possession of appellant Thavra; (iii) Recovery of torch of deceased from the possession of appellant Thavra; (iv) Non explanation of blood stains on the clothes of appellant Thavra; (v) Recovery of pair of shoes of deceased Kalu from the possession of appellant Dhanki; & (vi) Non explanation of presence of blood on the apparels of appellant Dhanki. It is not in dispute that deceased Kalu died of homicidal death. The autopsy on the dead body was conducted by PW 15 Dr. Anis Ahmed vide post mortem report Ex. P. 39. He noticed the following injuries on the person of deceased Kalu: ``1. Multiple abrasions of size area from 0. 2 x 0. 1 cm to 1 x 1 cm on frontal region, ant. half of parietal region. Red scar; 2. Abrasion 3 x 2 cm left side neck. Red scar; 3. Abrasion 1 x 0. 5 cm near Inj. No. 2 Red scar; 4. Abrasion 2 x 1. 5 cm sternoclavicular. Red scar; 5. Multiple abrasions which are crossing each other on Rt. chest in area 18 x 4 cm ant. size area from 2 x 2 cm to 4 x 3 cm. Red scar; 6. Multiple abrasion in area 14 x 7 cm left lower chest ant. Of size area from 0. 5 x 0. 5 cm to 1 x 2 cm. Red scar; 7. Two abrasions 2 x 0. 5 cm left iliac crest each. Red scar; 8. Multiple abrasions on up Rt. thigh ant. Lateral size area from 1. 0. 1cm to 7 x 0. 2 cm. Red scar; 9. Multiple abrasions Rt. gluteal region of size area from 5 x 0. 1 cm to 18 x 0. 1 cm. Red scar. '' In his opinion, the cause of death was come due to ante mortem heart injury, which was sufficient in the ordinary course of nature to have caused death. All the injuries were reported to be ante mortem in nature caused by blunt object. Pw. 1 Narain is the brother of deceased Kalu. He has proved the F. I. R. Ex. P. 1. He has given some details of investigation. Pw. 5 Banshilal is the son of deceased Kalu. He deposed that appellant Thavra was inimical to his deceased father as he was having illicit relations with his wife. He came to know about the death of his father from Pw. 1 Narain. He has given details of the investigation. Pw. 2 Hagji, P. W. 3 Laxman, Pw. 6 Vela, Pw. 7 Laxman, Pw. 14 Fatehlal and Pw. 17 Roopa are formal witnesses being motbirs of the different police memos. Pw. 11 Shankerlal, Pw. 12 Hari Shanker and Pw. 13 Rajendra Singh are the police witnesses of link evidence. Pw. 10 Suryaveer Sigh is the investigating officer, Pw. 16 Keshulal is the Sarpanch. He has not supported the prosecution case and, as such, he has been declared hostile.
(3.) IT is trite law that when evidence against an accused person, particularly when he is charged with grave offence like murder, if it consists of only circumstances and not direct oral evidence, it must be such that on every reasonable hypothesis, the conclusion must be that the accused is guilty, no fantastic possibilities nor freak inferences but rational deductions which reasonable mind make from probative force of facts and circumstances. Keeping this in mind, to proceed with the first Circumstance, PW. 8 Vesa deposed that appellant Thavra visited his house a day before the incident. He purchased a bottle of liquor for Rs. 10/- from him. He consumed liquor with Shanker. While consuming liquor, he uttered that he would be killing Kalu as he had committed rape on his wife. After some time, Shanker and Thavra left his place. In the cross examination, he admitted that he did not disclose this fact to anybody. He also admitted in the cross examination that he was deposing in the court as per the decision taken in the village panchayat. Tslk xkao esa lhkh yksxksa us r; fd;k osls gh c;ku nsdj tk jgk gwa** Pw. 9 Shanker deposed that while he was at the house of Pw. 8 Vesa, appellant Thavra arrived. He purchased liquor for Rs. 10/ -. While consuming liquor, appellant Thavra uttered that he would be killing Kalu as he was not behaving well. In the cross examination, he admitted that appellant Thavra was drunk and, as such, after consuming liquor, he was talking non sense. This circumstance cannot be said to be of conclusive nature. It is admitted by both the witnesses that appellant Thavra had consumed liquor and he was talking non sense. Pw. 8 Vesa has admitted that he was giving statement as per decision of the Panchayat. The evidence does not inspire confidence. Thus, this circumstance cannot be accepted as an incriminating circumstance against the appellant. ;