Full Judgment
Shiv Kumar Sharma, J.
1. Challenge in this appeal is to the judgment dated March 16, 2002 of the learned Additional Sessions Judge (Fast Track) Bandikui District Dausa. Learned Judge vide judgment dated March 16,2002 whereby the appellant was convicted and sentenced as under:
Under Section 302 IPC:
To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for one month.
Under Section 394 IPC:
To suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for one month.
The substantive sentences were ordered to run concurrently.
2. It is the prosecution case that on August 17, 1996 at 5 PM Kinduri Lal (PW. 1) handed over a written report (Ex. P. 1) at Police Station Mahwa stating therein that on the said day Sampati, wife of his elder brother, who had gone to the field for bringing fodder, was done to death. Her both the ankles were chopped of, silver anklets weighting 2 kg were removed and scarf was tied on her neck. On that report a case, was registered under Sections 394 and 302 IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Bandikui District Dausa. Charges under Sections 394 and 302 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
3. Death of Sampati was undeniably homicidal in nature. As per Post Mortem report (Ex. P. 5) following ante mortem injuries were found on the dead body:
1. Bruise in front of neck 11 cm x 1 cm in size.
2. Bruise in front of neck 10 cm x 1 cm
3. Amputation of Lt. foot at the site of ankle joint 5.5 cm x 4.5 cm
4. Amputation of Rt. foot at the site of ankle joint 5.5 cm x 4.5 cm.
4. In the opinion of Dr. Prithvi Raj (PW. 6) the cause of death was asphyxia due to injury No. 1 & 2. We have given our anxious consideration to the submissions advanced before us and with the assistance of learned Counsel, gone through the evidence on record.
5. Since there was no eye witness of the occurrence and the prosecution founded its case on circumstantial evidence. We have therefore to examine whether:
(i) the circumstances from which an inference of guilt is sought to be drawn, have been cogently and firmly established;
(ii) those circumstances are of a definite tendency unerringly pointing towards the guilt of the appellants;
(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 appellants and none else.
6. First circumstance that has been found established against the appellant is that he was last seen with the deceased on the field prior to her death. Dharam Singh (PW. 5) deposed that on August 17, 1996 around 1.30 PM while he was passing near the field of Sant Ram, he saw the appellant talking with Sampati. After about one and half hour he heard that Sampati was killed. Dharam Singh identified the appellant in Identification Parade held before the Magistrate and put his signature on the memo Ex. P. 5. Sh. Rakesh Katara (PW. 11) learned Judicial Magistrate stated that he conducted identification parade and drew memo Ex. P. 5. In the identification parade, the appellant was correctly identified by Dharam Singh. The appellant was also identified by Dharam Singh in the trial Court.
7. Second circumstance established against the appellant is that on the basis of his disclosure statement Daranti (cutting instrument) and the shirt stained with blood got recovered. As per FSL report blood found on Daranti and shirt was of '0' group which matched with the blood group of the deceased. Bhanwar Singh IO (PW. 12) deposed that the appellant gave information under Section 27 of the Evidence Act about Daranti and shirt and they were recovered, sealed and sent to FSL for examination. Blood stained clothes of the deceased were also sent to FSL and blood of 'O' croup was found on them.
8. Third circumstance against the appellant is the recovery of silver anklets at his instance. Bhanwar Singh 10 recovered anklets vide memo Ex. P. 20 on the basis of disclosure statement of appellant. Kinduri Lal (PW. 1) identified the anklets as of his ' Bhabhi Sampati (deceased) before the Tehsildar who conducted proceedings of identification of the anklets. Mahendra Kumar Sharma Tehsildar (PW. 14) deposed that anklets were placed before him in sealed condition and he kept them with similar other anklets. Kindurilal (PW. 1) and Sri Ram (PW. 15) husband of the deceased correctly identified them. Having closely scanned the evidence adduced by the prosecution, we do not suspect the testimony of identification.
9. It is well settled that the evidence of identity must be thoroughly scrutinized, giving benefit of all doubt to the accused, but if after a thorough scrutiny there appears to be nothing on the record to suspect the testimony of the identification, the court ought not to feel shy of basing a conviction on such evidence alone, because of the bare possibility that there could be honest though mistaken identification.
10. As earlier noticed the recovery of Daranti, anklets and clothes stained with blood got effected from the places that were known alone to the appellant. The Supreme Court in State of Himachal Pradesh v. Jeet Singh 1999 Cr.L.J. 2025 held as under:(Para 26)
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible of recovery of the articles was made from any place which is 'open or accessible to others'. It is fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road-side or it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the articles would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hide it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
11. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances so established are consistent only with the guilt of appellant and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant. Learned trial Judge in our opinion committed no illegality in convicting the appellant.
12. In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the accused. The material 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.
13. For these reasons we find no merit in the instant appeal and the same accordingly stands dismissed. Conviction and sentence of the appellant under Sections 302 and 394 IPC are maintained.