BYAS, J. - (1.) ACCUSED Hazariya was convicted under Section 302, I. P. C. and sentenced to imprisonment for life with a fine of Rs. 100/-, in default of the payment of fine to further undergo three months' rigorous imprisonment by the learned Additional Sessions Judge, Nagaur by his judgment dated March 19, 1981. He has come-up in appeal and challenges his conviction.
(2.) BRIEFLY stated, the prosecution case is that the deceased-victim Poosa Ram Dholi was the husband of Smt. Sohini alias Prem (co-accused acquitted by the trial court ). They were residents of village Barawata tehsil Sambhar district Jaipur. Poosa Ram was one-eyed person and had prominent scar marks of small-pox on his face. He was a man of lean and weak constitution Accused Hazariya came in contact with this couple. It is suggested that illicit intimacy took place between the appellant and Smt. Sohini. The appellant brought the couple to village Chhapri Badi tehsil Deedwana district Nagaur and all the three i. e. the appellant and the couple, started working at the well of PW 8 Ganpatsingh. At times, they also used to work as labourers with some other persons. They raised a hut in the field of Ganpatsingh and lived therein. In the evening intervening night of July 2/3 1979, PW 1 Shaitansingh was working at his tea-stall in village Daulatpura, which is nearly four miles away from Deedwana. At about 11. 00 or 11. 30 P. M. while he was in his tea-stall, he saw the appellant Hazariya, one woman and a man coming from the side of village Chhapri and going towards Deedwana The appellant was having Farshi with him. There was some talk between him and accused Hazariya. At about 2 00 A M. in the same night, while Shaitansingh was preparing tea for PW 7 Mohan and PW 13 Rameshwar, he again saw accused Hazariya and one woman coming from Deedwana side and going towards village Chhapri. At about 7. 00 AM. on July 6, 1979, PW 6 Astali khan of village Daulatpura learnt that a dead body was lying buried in a sand-dune at some distance from the road going towards Deedwana. He and many persons went there and found the dead body buried. One foot of the dead body was protruding out of the pit Astali Khan went to police Station, Deedwana and verbally lodged report Ex. P. 26 at about 9 45 A M. The Station House Officer Kansingh (PW 20) arrived on the spot with the Sub-Divisional Magistrate and doctor Laxmansingh (PW 4) He disinterred the dead body from the pit and prepared its inquest report. The dead body was in the state of complete decomposition. It was the dead body of a Hindu male. The post -mortem examination of the dead body was conducted on the spot at about 2. 50 P. M. on the same day by Dr. Laxmansingh. He found the left lower limb and flesh, toes of right foot and flesh of arm of the dead body eaten away by wild animals. The doctor noticed the following ante-mortem injuries on the dead body: - "1 Incised wound 5" x 2" x 3" covering whole nape of neck and right side of neck, slightly oblique wound cutting the vertebrae column and spinal cord at level of 4th earrido vertebrae and blood vessels of right side of neck. 2. Incised wound 3" x 1" x 1" on dorsum of right hand obliquely from base of index finger, fracturing the II metacarpal bone. 3. Incised wound 2" x 1/2" x 1/2" on right side of toes over mandibular area. It has fractured the mandible. " The doctor was of the opinion that the death of the victim had taken place due to incised wound of neck cutting the spinal cord and blood vessels. He prepared the report EX. P. 23. Since the death, according to medical opinion, was homicidal, the police registered a case under Section 302, I. P. C. The investigating officer seized and sealed the clothes found on the dead body. The photographs of the dead body were also taken. The clothes and the photographs were shown to PW 14 Suwa, who is the brother of Poosaram. He identified that the photographs and the clothes were of his brother Poosaram. The appellant and Smt. Sohini were arrested on July 17, 1979. At the time of his arrest, accused Hazariya was wearing one bushirt and one pent. They were seized and sealed as they contained some stains of blood. In consequence of the information furnished by accused Hazariya on July 19, 1979, one Farshi (Article ( 1 ) was recovered lying buried in a sand-dune near village Daulatpura. In consequence of the information furnished by co-accused Smt. Sohini, one Lehanga and one Odna. suspected to contain stains of blood, were recovered on July 19. 1979. The appellant and co-accused Smt. Sohini also took the investigating officer and Motbirs to the place where the dead body was found buried in the sand-dune. The seized articles were sent for chemical examination. No blood was detected on the Farshi. Blood was also not detected on the pent of the appellant. Some stains of blood were detected on the bushirt of the accused, but it could not be ascertained whether it was of human origin or not. On the completion of investigation, the police presented a challan against the appellant Hazariya and Smt. Sohini in the Court of Munsif cum Judicial Magistrate, Deedwana. who, in his turn, committed the case for trial to the Court of Sessions Judge, Merta. The learned Sessions Judge framed charges under section 302 and in alternative U/s 302/ 34, I. P. C. against both of them, to which they pleaded not guilty and claimed to be tried. The case, thereafter came for trial before the additional Sessions Judge. Nagaur. In support of its case the prosecution examined twenty witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating material against Smt. Sohini to connect her with the murder of her husband Poosa Ram. She was, therefore, acquitted. The Additional Sessions Judge was however , of the opinion that Poosa Ram was done to death by the appellant Hazariya The appellant was, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, the accused Hazariya has taken this appeal. We have heard Mr. R. K. Gehlot-learned counsel for the appellant and the learned Public - Prosecutor Mr. S. K. Mathur. We have also gone through the case file carefully. Mr. Gehlot did not challenge that the death of the male person, whose dead body was found buried in the sand-dune, was homicidal and not natural. We have also gone through the testimony of PW 4 Dr. Laxman Singh, who conducted the autopsy of the dead body and find no reasons to distrust his opinion about the cause of death. Dr. Laxman Singh positively stated that the cause of death was incised wound on neck cutting the spinal cord and blood vessels. The death of the male person, whose dead body was found berried, was not natural. It was homicidal.
(3.) ADMITTEDLY, there is no direct evidence in the case. The prosecution case rests squarely on the circumstantial evidence. For case and convenience, the circumstantial evidence may be categorised in the following heads:- 1) In the night between July 2/3, 1979, appellant Hazariya was seen with one man and one woman coming from the side of village Chhapri and going towards Deedwana. The appellant and one woman were seen returning from Deedwana side and going towards village Chhapri after some time in village Daulatpura. The witness speaking on this count are PW 1 Shaitansingh, PW 7 Mohan, PW 11 Hanumana Ram and PW 13 Ramesh-war; 2) the appellant, the deceased Poosaram and the co-accused Smt. Sohini were living together in village Chhapri Badi at the well of PW 8 Ganpatsingh, who had provided employment to them. They lived there for some days and thereafter all of them went away together. The witnesses speaking in this behalf are PW 8 Ganpatsingh, PW 12 Jeewansingh and PW 18 Smt. Kamla; 3) when the appellant Hazariya was arrested on July 17, 1979, he was wearing pent (Article 2) and bushirt (Article 3 ). These clothes were seized and sealed Blood was found on bushirt (Article 3) though it could not be ascertained whether it was of human origin or not; 4) in consequence of the information furnished by the appellant, one Farshi ( Article 1) was recovered from a place not far from the sand-dune where the dead body was found hurried: 5) illegal intimacy had developed between the appellant and the deceased's wife Smt. Sohini. It served as a motive for the appellant to finish Poosaram for ever; and 6) the appellant took the police and Motbirs to the spot on July 19, 1979 where the dead body was found earlier on July 6, 1979. In assailing the conviction, two contentions were raised by Mr. Gehlot, viz. (1) there is no evidence to show that the dead body found buried on the sand-dune was that of Poosaram and (2) the various sets of circumstantial evidence, referred to above, do not conclusively point out that Poosaram was done to death by the appellant. It was argued that the aforesaid sets of circumstantial evidence, even if taken as proved, were not sufficient to connect the appellant with the killing of Poosaram It was, on the other hand, submitted by the learned Public Prosecutor that PW 14 Suwa is the real brother of Poosaram and he had correctly identified the clothes found on the dead body to be of his brother Poosa Ram. He further identified the photographs of the dead body to be of his brother Poosa-Ram. It is, therefore, not open to any doubt that the dead body of the Hindu-male found buried in the sand-dune was that of Poosaram It was further submitted by the learned Public Prosecutor that the various sets of circumstantial evidence were sufficient to point out that the appellant, the deceased and Smt. Sohini were living together at the well of PW 8 Ganpatsingh in village Chhapri Badi. They were seen going together in the night between July 2/3, 1979 in village Daulatpura After some time, appellant Hazariya and one woman were seen coming back. The various recoveries of the articles afford a material corroboration to the prosecution story. When all these sets of evidence are taken into consideration, the cumulative effect is that it was the appellant and none else who was the perpetrator of the murder of Poosa Ram. We have taken the respective submissions into consideration. ;