Judgment:
Shiv Kumar Sharma, J.
1. First day of the year 1995 in village Navladi District Jhun-jhunu (Rajasthan) began with a tragic incident. In we hours of New Year, young bride Kesar was shot dead in the Haveli (big house) of her husband (appellant) who was indicted before the learned Additional Sessions Judge Jhunjhunu in Sessions Case No. 26/96 (116/95) for having committed murder of his wife Kesar. He was found guilty and convicted and sentenced under Section 302 IPC and Section 3/25(B)(A) Arms Act, 1959 vide judgment dated October 25, 1997 as under :-
Under Section 302 IPC To suffer Imprisonment for life and fine of Rs. 5,000/-, In default to further suffer One Year Simple Imprisonment.Under Section 3/25(B)(A) Arms Act, 1959 :To suffer Three Years Rigorous Imprisonment and fine of Rs. 1000/-, in default to further suffer Six, Months Simple Imprisonment. Both the sentence were directed to run concurrently.
2. The prosecution case as unfolded during trial is that at 7.30 AM on January 1, 1995 a telephone message was received at police station Nawalgarh. It was discerned that one Ummed Singh S/o Narain Singh resident of Navladi had shot dead his wife. The said information was recorded in Rojnamcha at Entry No. 1103 dated January 1, 1995. On receiving the said information Bhishma Raj Arya (PW.18), SHO Police Station Nawalgarh proceeded towards the place of incident. Upon reaching there, he found a room locked from outside and on riot finding the keys the door-latch was broken. Inside the room Kesar (since deceased) was lying dead on a cot. Bhagwana Ram (PW.1) submitted a written report (Ex.P-1) at the place of incident on the basis of which Crime No. 2/95 was registered at Police Station Nawalgarh for the offences under Sections 147, 148, 149, 302 and 498A IPC and the investigation commenced. In the said report it was inter alia stated by informant Bhagwana Ram that his sister Kesar was married to the appellant Ummed Singh. Time and again she was pestured by her in law for dowry. One Sumitra wife of Lal Chand (brother of appellant) had killed her husband by administering poison. The appellant Ummed Singh had developed illicit relations with Sumitra. In order to marry Sumitra the appellant entered into conspiracy with Sumitra, Pyarelal, Narain Singh S/o Delu Ram, Tulsi, Narain Singh S/o Panna Ram liquidated his wife with the aid of fire-arm in the early hours of January 1, 1995. On hearing gun shot, the attention of one Heera Lal was drawn towards the house of appellant where he saw the appellant endeavouring to make himself scares.
3. The Investigating Officer after drawing certain seizure memos, recorded statements of witnesses and arranged for the post mortem of dead body and after doing the needful submitted charge sheet against the appellant for the offence under Section 302 IPC. Subsequently the charge sheet was also filed against the appellant for the offence under Section 3/25(B)(A) of Arms Act, 1959. In due course the case came up for trial before the court of learned Sessions Judge Jhunjhunu. Charges under Sec. 302 IPC and Section 3/25(B)(A) of Arms Act were framed against the appellant. The appellant denied the charges and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 29 documents in support of its case. Thereafter on September 27, 1997 the case was transferred to the court of learned Additional Sessions Judge, Jhunjhunu, who recorded the explanation of the appellant under Section 313 Cr.P.C. In his statement the appellant discerned that there was some political animosity as also some litigation between him and Ganpat as well as Heera Lal. On the date of incident, he was irrigating his fields along with his father when at 8.00 AM Suresh came asking him, he went to his house where he found the police, who arrested him then and there. In defence one witness was examined and 14 documents were got exhibited. On hearing final submissions the learned Additional Sessions Judge convicted and sentenced the appellant as indicated herein above.
4. The case of prosecution is based on circumstantial evidence as there is no direct evidence connecting the appellant with the crime. It is well settled that where the evidence against the accused, particularly when he is charged with a grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances.
5. In convicting the appellant learned Trial Judge has placed reliance on the following circumstances :-
(i) The appellant had illicit relations with his Bhabhi Sumitra (widow of appellant's elder brother Lal Chand) and he wanted to get rid of his wife in order to marry with Sumitra.
(ii) Kesar died of gun shot injuries in the house of appellant and the appellant was seen running with pistol from his house and was heard telling Sumitra that he would surrender before the police;
(iii) At the time of his arrest the appellant was having pistol and key of his room where dead body of Kesar was locked.
(iv) The report of Ballistic Expert connected the appellant with the crime.
6. Broadly speaking circumstantial evidence against the appellant in the instant case is three fold. In the fist category comes the testimony of Heera Ram (PW.2) who had seen appellant coming out of his house having pistol in his hand, the evidence of second category comprises recovery of country made pistol found concealed under the pant of the appellant at the time of his arrest, recovery of dead body of appellant's wife Kesar, two cartridge cases and one bullet from the room which was in exclusive possession of appellant, Post Mortem Report and FSL report and the evidence of third category comprises of the statements of Bhagwana Ram (PW.1), Indraj (PW.6) Ram Singh (PW.7), Jagmal Singh (PW.14), Ganpat Lal (PW.15) and Balu Ram (PW.17) who deposed that appellant had illicit relations with his Bhabhi Sumitra (widow of appellant's elder brother) and he wanted to get rid of his wife Kesar in order to marry Sumitra.
7. Mr. S.R. Bajwa, learned Senior Counsel, canvassed that the testimony of prosecution witnesses is riddled with numerous incongruities rendering the same to be dubious. The prosecution has not been successful in establishing all incriminating circumstances beyond reasonable doubt so as to form such a chain that would only point towards the guilt of appellant and could not be explained in any other manner. The prosecution has failed to establish the motive of the crime with the aid of cogent evidence. The alleged extra judicial confession by the appellant does not hold good in the eye of law the alleged arrest of the appellant and seizure of deshi-katta from his person at the spot is a farce. It has all been made up by the investigating agency in its anxiety to connect the appellant with the crime. Learned Senior Counsel further contended that the telephonic message received by SHO of police station Nawalgarh was precise and divulged the necessary details. Upon receiving the same and incorporating it in Rojnamcha, the SHO went to the spot, broke open the door and recovered the dead body of the deceased. Subsequently, the report lodged by informant Bhagwana Ram could not be treated as FIR and the same is hit by Section 162 Cr.P.C. and cannot be read in evidence. The prosecution cannot seek much help from the alleged FSL report of the fire-arm allegedly recovered from the appellant. Learned trial Judge has committed illegality in callously rejecting the defence evidence. Reliance is placed on various authorities that shall be considered at the appropriate juncture.
8. Per Contra, Mr. S.S. Rathore, learned Public Prosecutor, supported the impugned judgment and urged that the conviction of appellant is based on rational evidence with reasonable probability in the facts and circumstances. All the incriminating circumstance have been established and the appellant was rightly convicted by learned trial Judge. Learned PP further contended that the argument advanced on behalf of the appellant are based on technicalities and the testimony of prosecution witnesses cannot be rejected by adopting technical approach.
Motive
9. Coming to the prosecution evidence in regard to motive behind the murder we find that Bhagwana Ram PW.1, is the real brother of deceased Kesar, who on receiving the information about the death of his sister Kesar, went to her house and submitted written report to the police at the place of incident itself. In his deposition Bhagwana Ram stated that the appellant had illicit relationship with Sumitra. Heera Ram PW.2 cousin of appellant in his deposition stated that at around 5.30 AM when he was coming to the house of Gram Sewak Bhanwar Singh situated at village Navaldi, he heard blasts of gun shot repeatedly, he then found appellant and Sumitra coining out of their house. Appellant was in the process of putting pistol from his right hand to the pocket of his pant and was telling to Sumitra who was holding in her lap, the child of Kesar, to look after the child well. Indraj (PW.6) and Ram Singh (PW.7) brothers of deceased Kesar stated that the appellant and in laws of Kesar used to harass her for demand of dowry. Appellant had developed illicit relationship with Sumitra. Caste Panchayat was assembled to resolve the matter and a decision was taken to provide some property to Kesar and separate her but the decision was not implemented. Jagmal Singh (PW.14) deposed that on April 20, 1993 a meeting was held in village Navaldi where about four hundred persons assembled. In the meeting father of Kesar made complaint of ill treatment of Kesar by the appellant. In the meeting appellant also accepted his strained relations with Kesar. Thereafter the property of appellant was divided and field measuring 25 Bighas, four rooms in Haveli and one lakh bricks were given to Kesar. Witness further stated that the appellant wanted to keep his Bhabhi Sumitra as his wife and this was the cause of dispute between Kesar and the appellant. Ganpat Lal Ex.Sarpanch (PW. 15) stated that Ummed used to harass his wife Kesar as he wanted to marry Sumitra. On a complaint made by the father of Kesar a meeting was held on April 21, 1993 and partition of property took place, Kesar thereafter started living separately but Ummed after few months pursuaded her to live with him in Haveli. Balu Ram (PW. 17) stated that the appellant wanted to keep Sumitra and used to beat his wife Kesar. A meeting to resolve dispute between Kesar and appellant was held in which persons of about ten villages participated. A decision was taken in the meeting that appellant and Kesar should live separately. Out of fifty bighas of agricultural land half of the land including bricks and four rooms in Haveli were given to Kesar and she started living separately but after about three months appellant pursuaded Kesar to live in Haveli with her and they used to live together.
10. Mr. S.R. Bajwa, learned Senior Counsel took us through the cross examination of these witnesses and after pointing our various contradictions urged to discard their testimony we find ourselves unable to accept this contention. Undoubtedly Bhagwana Ram (PW.1), Indraj (PW.6) and Ram Singh (PW.7) are the brothers of deceased but we find element of truth in their statements. Jagmal Singh (PW.14), Ganpat Lal (PW.15) and Balu Ram (PW.17) are not related to the deceased and Heera Ram (PW.2) is the cousin of appellant. Testimony of these witnesses could not be shattered in the cross examination. Thus, the prosecution is able to establish that the appellant had illicit relationship with Sumitra and he wanted to get rid of his wife Kesar, in order to marry Sumitra.
HOMICIDAL DEATH OF KESAR BY GUN SHOT INJURIES
11. That takes us to the circumstances under which Kesar was found dead. As per memo of site plan (Ex.P.21), dead body of Kesar is shown lying on a cost in a pool of blood having gunshot injuries just below her right ear and near her left breast. The cot is shown lying in a Kotri (small room) inside a room. Two cartridge cases and one bullet are shown lying near the blood. Another wooden bed with mattress and guilt is also shown lying in the room. Vide memo Ex.P.10, cartridge cases and bullet got seized and sealed. Vide memo Ex.P.23 Gun Powder found over the wounds was taken in cotton swabs and sealed. As per post mortem report (Ex.P.19) Kesar sustained two lacerated wounds with blackening scorching of skin around over right side of back of neck and on left side of chest wall anteriorly overlying fifth rib. The injuries were anti mortem in nature and cause of death was shock following extensive injuries to the heart, left lung and brain leading to instantaneous death. The prosecution thus has been able to prove that death of Kesar was homicidal.
RECOVERY OF COUNTRY MADE PISTOL
12. A look at the arrest memo Ex.P.6 demonstrates that at the time of arrest when the person of appellant was searched by Constable Bajrang Singh (PW.11) country made pistol was found tied with a rop under his pant. On a cursory examination of pistol one cartridge case was found in its chamber, Pistol and bullet also got seized and sealed vide memo Ex.P.6. Shiv Kumar (PW.19( who was posted as A.S.I. In the Police Station Navalgarh on the date of incident, deposed that on receiving information over telephone about the murder of Ummed Singh's wife he had gone to the place of incident along with the SHO, on reaching the spot the SHO directed him to search Ummed Singh who rushed after the incident towards Navalgarh. He then proceeded towards Navalgarh along with Constables Ram Kumar and Banwari. In the process of search they had seen Ummed Singh entering in to a water hut. They then caught hold of Ummed Singh and when Constable Bajrang Singh took search of the person of Ummed, one country made pistol was found tied with a rop under his pant. The pistol was seized and sealed and Ummed Singh was arrested vide Ex.P.6. Country mode pistol (Article 8) was shown to the witness in the trial Court and the witness deposed that it was the same article which he got recovered from the person of Ummed Singh. Constable Bajrang Singh (PW.1) Constable Ram Kumar (PW.3) and Constable Banwari Lal (PW.4) corroborated the testimony of Shiv Kumar, ASI (PW.19).
13. Mr. S.R. Bajwa, learned Senior Counsel vehemently criticized the testimony of ASI Shiv Kumar and other police Constable and urged that in view of provisions contained in Section 55 of the Code of Criminal Procedure the arrest and alleged recovery of pistol was illegal and the appellant could not have been convicted on the basis of false piece of evidence. Reliance is placed on legal Remembrancer v. Sona Mia (1), D.K. Basu v. State of W.B. (2), State of Bihar v. Kapil Singh (3), Raghbir Singh v. State of Punjab (4), Kehar Singh v. State (5), Mohan Singh v. State of Haryana (6), and Rabindra Nath v. State of Orissa (7).
14. In D.K. Basu's case (supra) their Lordships of the Supreme Court considering following two questions in the matter, related to death of a defence in police custody :
(i) Does a citizen shed off his fundamental right to life, the moment a policeman arrests him
(ii) Can the right to life of a citizen be put in abeyance on his arrest
Their Lordships issued 11 guidelines to be followed in all cases of arrest and detention as preventive measures. Guideline No. 2 was under :-
'2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by one witness, who may be either a member of the family of the arrestee or a respectable person of the locality where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.'
In regard to dealing with the criminal involved in the crime, their Lordships in para 32 observed as follows :-
'It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detention of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may got scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that the police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime.'
15. Section 41 Cr.P.C. provides power to a police officer to arrest any person who has been concerned in a cognizable offence. Sections 51 and 52 deal with search of arrested person. According to Section 52 the police officer making arrest may take from the person arrested any offensive weapon which he has about his person. Section 55 provide procedure when police officer deputes subordinate to arrest without warrant. Conjoint reading of Section 41 and 55 goes to show that Section 55 does not control or restrict the powers of police officer given to him under Section 41 which is a general provision. The difference between these two sections is that while under Section 41(1)(i) the police officer acts independantly even though he has received a requisition from another police officer, under Section 55 the subordinate officer merely carries out an order and does not act independently of it.
16. Main plank of submission of Mr. Bajwa, learned Senior Counsel was that as only ASI and police Constables have been associated with the arrest of the appellant and recovery of pistol, it is not safe to place reliance on their testimony. We do not see any merit in this submission. In Mohan Singh v. State of Rajasthan (8), the Hon'ble Supreme Court indicated that if the evidence of investigating officer who recovered the material object is convincing the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version.
17. In State Govt. of NCT of Delhi v. Sunil and Anr. (9), Hon'ble Supreme Court indicated in para 21 thus :-
'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. The offical acts of the police have been regularly performed is a wise principle of presumption and recognised even by the Legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable.'
18. On examination of the statements of ASI Shiv Kumar (PW.19), Constable Bajrang Singh (PW.11), Constable Ram Kumar (PW.3) and Constable Banwari Lal (PW.4) from the point of view of trustworthiness we find them reliable. We do not see any illegality in the arrest of the appellant and the recovery of the pistol in view of Section 41(1)(i) and 52 Cr.P.C. The prosecution has thus proved that at the time of arrest country made pistol was found tied with a rop under the pant of the appellant and the pistol had one cartridge case in its chamber.
OTHER CONNECTING EVIDENCE
19. A bare look at the FSI report Ex.P.3 reveals that three cartridge cases, one bullet, one country made pistol and two cotton swabs containing gun powder were sent in the sealed condition to the FSL. The FSL opined that country made pistol was fire arm amunition. On examination of the barrel residue it was found that the pistol had been fired but the definite time of fire could not be ascertained. On stereo and comparison microscopic examination of three cartridge cases it was indicated that they were fired from the country made pistol. On analysing the cotton swabs presence of gun powder particles was seen. It is thus established that cartridge cases found near the dead body of Kesar were fired from the same pistol which was found in the possession of the appellant at the time of his arrest.
20. That takes us to the testimony of Heera Ram (PW.2) who had seen appellant coming out of his house having pistol in his hand. As already noticed by us that Heera Ram is the cousin of appellant and on the fateful morning he came to village Navladi to meet Gram Sewak Bhanwar Singh. Around 5.30 AM on hearing gun- shots his attention was drawn towards the house of appellant where he found appellant and Sumitra talking. Appellant was in the process of putting pistol from his right hand to the pocket of his pant and was telling Sumitra, who was holding in her lap a child, to look after the child well. According to Mr. S.R. Bajwa, learned Senior Counsel, presence of this witness in the early hours of day is doubtful. Taking us through his cross examination Mr. Bajwa, learned Senior Counsel, urged that this witness is a lier as he ever made no attempt to accomplish that work for which he wanted to meet Gram Sewak Bhanwar Singh. From his statement it appears that he never met Bhanwar Singh. His village is very far from the house of appellant and no reliance can be placed on the testimony of such witness.
21. A close look at the statement of Heera Ram goes to show that he is distantly related to the appellant. His village is only one mile away from village Navladi and his presence at 5.30 AM in village Navladi cannot be doubted as villager's wee-hours begin much earlier. Although Heera Ram has been cross examined at length but his testimony could not be shattered. We see no reason as to why a distantly related cousin who had no enmity with the appellant, would depose against him. If he did not meet Bhanwar Singh to accomplish his work, it does not mean that he is a Her. Their Lordships of the Supreme Court in State of Orissa v. Diwakar Nayak (10), indicated that court has to judge the evidence in a criminal case by the yardstick of probabilities its intrinsic worth and animus of the witnesses, Court should not reject the testimony of a witness by adopting a technical approach.
22. On examining the testimony of Ganpat Lal Ex. Sarpanch (PW.15) we find that Narain Singh, the father of appellant, came to him around 5.00 AM and told him that he wanted to make a telephone call to the police. On being enquired as to what information he wanted to communicate, Narain Singh informed that his son Ummed had shot dead his wife Kesar. They then made a phone call to the police.
23. Bhisma Raj Arya, I.O. (PW.18) stated that he received telephonic message that Ummed Singh had shot dead his wife Kesar. The message was entered in Rojnamcha and he proceeded to the spot, where he got information that appellant had gone towards Navalgarh. He then directed ASI Shiv Kumar to search Ummed. Bhisma Raj Arya further deposed that he had drawn site plan, inquest report, recovery memos of cartridge cases, bullet and cotton swabs and other articles, and kept them in a sealed condition. Mr. S.R. Bajwa, learned Senior Counsel criticised the conduct of I.O. and drew our attention towards various infirmities in the investigation. Learned counsel canvassed that the report lodged by informant Bhagwana Ram could not be treated as FIR as the same is hit by Section 162 Cr.P.C. and cannot be read in evidence. We find ourselves unable to agree with this contention. The message entered in the rojnamcha was a cryptic and unauthenticated information and it does not constitute FIR within Section 154 Cr.P.C. Therefore^ in our view the report lodged by Bhagwana Ram is not hit by Section 162 Cr.P.C. Their Lordships of the Supreme Court in Ram Singh Bavaji Jadeja v. State of Gujarat (11), indicated as under :-
'From time to time, controversy has been raised, as to at what stage the investigation commences. That has to be considered and examined on the facts of each case, especially, when the information of cognizable offence has been given on telephone. If the telephonic message is cryptic in nature and the officer incharge proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be First Information Report. The object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the officer incharge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on basis of that information, the officer incharge is primafacie satisfied, about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer 'in the course of investigation' covered by Section 162 of the Code. That statement cannot be treated as First Information Report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details or such information cannot be treated as First Information Report.'
24. So far as statement of Suresh Kumar (DW.1) is concerned, we do not find element of truth in it. According to him the appellant and his father Narain Singh were away from the house on the date of incident and throughout the night they were in their agricultural field. Suresh Kumar is pujari of a temple and he had no land near the fields of the appellant. Even otherwise to establish the plea of alibi, Narain Singh, the father of the appellant would have been the best witness but he did not choose to appear in the witness box.
25. Hon'ble Supreme Court in Sharad Birdhi Chand Sarda v. State of Maharashtra (12), indicated five conditions that must be fulfilled in a case based on circumstantial evidence. The conditions are as under :-
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complex as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
26. In the instant case we find a combination of facts creating a network through which there is no escape for the appellant. It has been established beyond reasonable doubt that in order to marry with Sumitra the appellant wanted to get rid of his wife Kesar. Death of Kesar was homicidal and she sustained ante mortem gu shot injuries. Dead body of Kesar was found in the room belonging to the appellant. Immediately after the incident, the appellant was seen coming out of his house armed with pistol. At the time of arrest of appellant country made pistol was found tied with a rop under his pant. Cartridge cases found near the dead body of Kesar were fired from the same pistol which was found in the possession of the appellant at the time of his arrest. The evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. Learned Trial Judge in our considered opinion, has not committed any error in convicting and sentencing the appellant.
27. For the reasons stated above, we find no merit in the appeal and the sameis dismissed.