SHARMA, J. - (1.) DURGA Devi, an old lady of 60 years, was found murdered in her Khuddi (small hut) where she used to reside all alone. The three appellants herein were indicted for having committed murder of DURGA Devi before the learned Additional Sessions Judge (Fast Track) No. 1 Jhunjhunu, who vide judgment dated May 28, 2003 convicted and sentenced them as under:- Under Section 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. Under Section 394/34 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. Under Section 460/34 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. Under Section 436/34 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution case is woven like this:- Three reports were submitted by informant Suresh Kumar (Pw. 4), son of deceased Durga Devi at Police Station Sadar Jhunjhunu in regard to the incident occurred on July 6, 2000 at 11. 30 PM. First report (Ex. P-14) was handed over at 2 AM on July 7, 2000. Second report (Ex. P-11) was submitted on July 11, 2000 and third report (Ex. P-13) was lodged on July 16, 2000. In the first report (Ex. P- 14) it was stated that onseeing the fire and flames at the hut of Durga Devi, women folks of the neighbourhood raised hue and cry. When the villagers reached there, they found dead body of Durga Devi. On that report police initiated proceedings under Section 174 Cr. P. C. . In the second report it was stated that Ladu Ram and Laxman had seen one Nemi Chand Meena running from the hut of Durga Devi. Ladu Ram then called Suresh Kumar, who rushed to the hut and found Durga Devi lying dead in naked condition. It was further stated that there were two pitchers full of jewelery and ornaments which had been dug out. Even her nose-pin and ear tops had been plucked out. It was also stated that since he was shocked by the incident he could not name Nemi Chand in the first report. THE police registered a case under Sections 302 and 436 IPC and investigation commenced. Statements of alleged eye witnesses viz. Ladu Ram and Laxmi Narayan under Section 161 Cr. P. C. were recorded on July 12, 2000. In the third report graphic description of the incident was given. It was inter alia stated by Suresh Kumar that his mother Durga Devi used to reside in the hut alone. On July 6, 2000 around 11 PM while she was sleeping Nemi Chand, Kurda Ram and Jagdish entered the hut in a drunken state and started searching ornaments. Durga Devi awoke and raised hue and cry. Kurda Ram then inflicted lathi blow on her head. Nemi Chand gave blows with legs and fists, whereas Jagdish squeezed her neck as a result of which Durga Devi died on the cot. THE three accused then pulled her down from the cot and striped her naked. Nemi Chand plucked out ear-rings and nose-pin. Kurda Ram removed her silver anklets, whereas Jagdish took out her silver locket. Nemi Chand then set ablaze thus hut and ran away. But Ladu Ram and Laxmi Narayan had seen him running. Kurda Ram and Jagdish however escaped in the darkness. Police Station Sadar Jhunjhunu tagged all the three reports together. Further investigation proceeded. Statements of witnesses under Section 161 Cr. P. C. were recorded, necessary memos were drawn, the accused were arrested and on completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jhunjhunu. Charges under Sections 302/34, 460, 394 and 436 IPC were framed. THE accused denied the charges and claimed trial. THE prosecution in support of its case examined as many as 13 witnesses and got exhibited 36 documents. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. We have heard learned counsel for the appellants and learned public prosecutor and with their assistance scrutinised the material on record. Death of Durga Devi was undeniably homicidal in nature. As per Postmortem Report (Ex. P- 30) following ante mortem injuries were found on the dead body:- Lacerated wound 3. 5cm x 1/2cm on Lt. side of forehead just above eye brow going upward and back ward on exploration fracture, hematoma about 4cm x 3cm present on lt. side over the dura matter brain congested. 2. Lacerated wound on lt. ear lobule 1/2 cm x whole thickness of lobule. Injury is postmortem in nature. 3. Abrasion 4cm x 1. 5cm on chin & lt. side of jaw. 4. Contusion all around Rt. eye and upto 2cm below it. 5. Contusion 4cm x 3cm on Rt. side of mandible. 6. Contusion 15cm x 5cm on lt. side of chest just lateral to sternum. 7. Abrasion 2. 5cm x 0. 5cm on lt. side of abdomen in lumber area on lateral side. 8. Abrasion 15cm x 2cm on back lower part in middle. 9. Abrasion 3cm x 2cm on Rt. glottal region. 10. Bruise 10cm x 4cm on Lt. arm 11. Abrasion 1cm x 1cm Lt. clavicular area. 12. Bruise 10cm x 8cm on Rt. iliac area In the opinion of Dr. S. K. Bhargava (Pw. 9) the cause of death was coma due to compression of brain caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. There is no direct evidence in this case and it is based on circumstantial evidence. The law regarding circumstantial evidence is well settled. When a case rests on upon the circumstantial evidence, such evidence must satisfy three tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence, in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Keeping this legal position in mind, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into two parts:- (i) Oral evidence to prove that the accused were seen coming out of the hut of the deceased at or near about the time of incident. (ii) The various recoveries at the instance of the accused.
(3.) INFORMANT Suresh Kumar (Pw. 4) in his deposition stated that on July 6, 2000 his mother ate food at 8. 30 PM in his house and went to sleep in her hut. Around 11 PM Ladu Ram and Laxmi Narayan called him to inform that there was fire in the hut of his mother. He rushed there and found his mother lying dead in necked condition. Her nose and ears were cut. She used to wear golden nosepin, silver locket and silver anklets, but those ornaments were removed. Ear-rings and nose-pin were recovered vide memo Ex. P-5 at the instance of Nemi Chand from his house. Silver anklet was recovered at the instance of Kurda Ram vide memo Ex. P- 6. Whereas silver locket was recovered at the instance of Jagdish vide memo Ex. P-7. He further deposed that Ladu Ram and Laxmi Narayan told him in village Panchayat that guilt was committed by Nemi Chand. Nemi Chand informed that Kurda Ram and Jagdish were with him. Laxmi Nrarayan (Pw. 1) deposed that at the time of incident while he was sitting along with his brother Ladu Ram he saw fire on the hut of Durga Devi. When he reached near the hut he saw Nemi Chand running towards his house. Testimony of Laxmi Narayan gets corroboration from the statement of Ladu Ram (Pw. 2 ). Vinod S/o Ladu Ram (Pw. 6) stated that around 11. 30 PM he was reading `sunder Kand' in Balaji Temple he heard some noises coming from the hut of Durga Devi. He went to the hut where he found Durga Devi lying dead and her hut was on fire. He saw Jagdish and Kurda Ram running. Thereafter Nemi Chand was also seen running. ;