N.N. 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 Under Section 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 Under Sections 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 Under Sections 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.
3. 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 3x2 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 18x4 cm ant. size area from 2x2 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 5x0.1 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.
4. 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.
5. 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.
6. 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.
7. 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 lh yksxksa us r; fd;k oSls gh c;ku nsdj tk jgk gwa
8. 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.
9. As regards the second Circumstance, appellant Thavra was arrested on 2.3.2005 vide Ex. P. 2. In pursuance of the information given by him vide Ex. P. 24, a blood stained 'kulhari' was recovered vide Ex. P. 16 in the presence of PW. 3 Laxman and PW. 17 Roopa. The 'kulhari' was sealed and packed in packet market 'K' on the spot. It was sent to the Forensic Science Laboratory alongwith other articles. As per the F.S.L. Report Ex. P. 27, the 'kulhari' has been found stained with human blood. The prosecution has succeeded in establishing this piece of circumstance against appellant Thavra.
10. As far the third Circumstance is concerned, in pursuance of the information given by appellant Thavra vide Ex. P. 25, a torch was recovered vide Ex. P. 18 in the presence of motbirs viz; PW. 3 Laxman and PW. 17 Roopa. The torch was identified by PW. 18 Saludi, daughter-in-law of deceased Kalu, in the identification proceedings Ex. P. 45 in the presence of PW. 19 Tirupati Kumar Gupta, judicial Magistrate. Learned Counsel has criticized this piece of circumstance on the ground that recovered torch is common in nature, as number of such torches are available in the market. Before identification, no specific mark of identification was given by the witness viz; PW. 18 Saludi. We are in agreement with the learned Counsel for appellants. It is admitted that the torch is of common pattern. Thus, this circumstance cannot be used as an incriminating circumstance against the appellants.
11. Turning to fourth circumstance, in pursuance of the information given by appellant Thavra vide Ex. P. 25, the blood stained clothes belonging to him were recovered vide Ex. P. 19. They were packed & sealed on the spot. We are not dealing with the link evidence as the same has not been challenged by the defence. Suffice it to say that the articles reached to the Forensic Science Laboratory in intact condition. As per the F.S.L. Report Ex. P. 27, the blood stains found on the apparels of appellant Thavra were of human origin. The prosecution has succeeded in establishing this piece of circumstance. It is further to be noticed that the police had also seized white open shirt of deceased vide Ex. P. 8. The blood stains found on white open shirt belonging to deceased as well as on the apparels of appellant Thavra, are of same blood group. This circumstance is of conclusive nature. The prosecution has succeeded in establishing the same.
12. So far as the fifth circumstance is concerned, in pursuance of the information given by appellant Dhanki vide Ex. P. 23, a pair of shoes was recovered vide Ex. P. 13 in the presence of motbirs viz; PW. 5 Banshilal and PW. 6 Vela. The shoes were identified to be belonging to deceased Kalu by PW. 18 Saludi in the identification proceedings Ex. P. 44 in the presence of PW. 19 Tirupati Kumar, judicial Magistrate. It is contended by the learned Counsel that the witness has not shown any specific mark before identification of the shoes. The pair of shoes is of common pattern. We are in agreement with the contention of the learned Counsel. No specific mark of the shoe has been pointed out by PW. 18 Saludi. The pair of shoes is of common nature. Thus, this piece of circumstance cannot be said to be of conclusive nature.
13. As far as the last piece of circumstance i.e. sixth circumstance is concerned, in pursuance of the information given by appellant Dhanki vide Ex. P. 23, her own Saree was recovered vide Ex. P. 14. As per the F.S.L. Report Ex. P. 27, the blood spot on the Saree is of human origin. The police has also seized the shirt of deceased vide Ex. P. 8. The blood stains found on the shirt of deceased as also on Saree of appellant Dhanki are of the same blood group. The prosecution has succeeded in establishing this piece of circumstance as well.
14. Thus, taking cumulative effect of the circumstances, as far as appellant Dhanki is concerned, we are of the view that the circumstances put forward by the prosecution and proved, are not consistent only with her guilt. The prosecution has succeeded in establishing the only circumstance of presence of blood on her Saree, which is of the same group present on the shirt of deceased. This single circumstance is not sufficient leading to the inference that she committed murder of deceased Kalu. The possibility cannot be ruled out that she might have helped voluntarily or under coercion in removing the dead body and in that event, she might have come in contact with the injured or dead body and that might be the reason of blood stains on her Saree. Thus, she may, at the most, be held guilty of offence Under Section 201/34 IPC but not 302/34 1PC. Her conviction of offence Under Section 302 IPC is not sustainable.
15. As far as appellant Thavra is concerned, the prosecution has succeeded in established two important piece of circumstances against him, firstly recovery of blood stained 'kulhari' and the presence of human blood on his clothes. Both the circumstances are of conclusive nature pointing towards the guilt of appellant Thavra. He has failed to give any explanation as to the presence of human blood found on his own apparels as well as the 'kulhari' recovered from his possession. It is submitted that there is no injury caused by sharp edged weapon on the person of deceased, as such, the circumstance of recovery of 'kulhari' is in variance with medical evidence. It is also submitted that no blood has been found on the sharp edges of the 'kulhari'. It is on the wooden handle of the 'kulhari'. It is also submitted that even according to the prosecution, appellant Thavra was mentally perturbed having known that deceased Kalu committed rape on is wife appellant Dhanki. We have given our thoughtful consideration to the contentions advanced by the learned Counsel. It appears that appellant did not use sharp edged side of the 'kulhari' causing injuries to deceased. The circumstances show that he did not intend to commit murder of deceased Kalu. Thus, in the facts of the case, it cannot be said that he intended to commit murder of deceased Kalu. He can, at the most, be clothed with the knowledge that in the ordinary course of nature, his act may cause death. Thus, it is not a case of culpable homicide amounting to murder but a case of culpable homicide not amounting to murder, punishable under Section 304 part II IPC.
16. Consequently, both the appeals are disposed of in the manner indicated as follows:
(i) D.B. Criminal Jail Appeal No. 686/2006 'Dhanki v. State of Rajasthan' is partly allowed. The conviction of appellant Dhanki for the offence Under Section 302 IPC is set aside and she is acquitted of the said charge. However, her conviction of offence Under Section 201/34 IPC is maintained. She is in jail. She will undergo the remaining part of the sentence.
(ii) D.B. Criminal Jail Appeal No. 135/2006 'Thavra v. State of Rajasthan is partly allowed. The conviction of appellant Thavra for the offence Under Section 302 IPC is converted into offence Under Section 304 part II IPC and for that, he is sentenced to five years' rigorous imprisonment with a fine of Rs. 1000/- and in default of payment, to further undergo six months' R.I. However, his conviction of offence Under Section 201/34 IPC is maintained. Both the sentences will run concurrently. He is in jail. He will undergo the remaining part of the sentence.