Smt. Kanku Vs. State of Rajasthan - Court Judgment

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criminal trial - motive--not proved that deceased beat accused 2-3 before incident--both slept in same room--no strained relations proved between accused & deceased--held, motive is not proved;from the prosecution evidence, it does not stand proved that 2-3 days prior to the alleged incident, the deceased has beaten the appellant or that they used to quarrel or had strained relations. more-over, the alleged motive does not commensurate with the offence. had the relations between the deceased and the appellant been so strained, then they would not have even slept in the same room. therefore, in this case, motive has not at all been proved.;(b) criminal trial - appreciation of evidence--possibility of entry into room by some persons not ruled out--trial judge misread evidence--held, trial judge committed illegality of fact and his finding is perverse and against record;this possibility can not be ruled out that some persons might have entered into the room, where daya lal was sleeping either from the open room above the 'padsaal' or from the back door of the kitchen, which was found open by the prosecution witnesses immediately after the incident. in view of this, in our considered opinion the learned trial judge has misread the evidence and have wrongly held that all the doors of the room, where the incident took place, were bolted from inside and that there was no possibility of any other person entering in that room. he has thus committed an illegality of fact, as such his finding on this count is perverse and against the record.;(c) criminal trial - recovery of daranti--report of forensic science laboratory not submitted by prosecution--held accused is not connected with crime--recovery of two weapons of offence demolishes prosecution case of single accused;since no report of the forensic science laboratory was submitted by the prosecution, the alleged recovery of 'daranti' also does not connect the appellant with the crime. ;the theory of recovery of two weapons demolishes the prosecution case that there was a single accused in this case.;(d) criminal trial - recovery of ornaments--ornaments neither produced in court nor identified by any witness--material contradictions--held, it does not connect accused with crime;the evidence regarding the alleged recovery of the ornaments at the instance of the appellant is replete with material contradictions. apart from it, admittedly those ornaments were neither produced in the court during trial, nor these were got identified by any witness during investigation. those ornaments were also not stained with blood. therefore, the alleged recovery of the ornaments has not been proved beyond reasonable doubt and the same does not connect the appellant with the crime.;(e) criminal trial - appreciation of evidence--prosecution to stand on its own legs--held, falsity of defence does not help prosecution and is not circumstance to connect accused with crime;the case of the prosecution has to be tested independently from the defence version and falsity of the defence can not help the prosecution to establish its own case. the prosecution has to stand on its own legs by adducing clear, cogent and convincing evidence. the prosecution has to prove the guilt against the accused beyond all reasonable doubts. therefore, falsity of defence evidence is not at all a convincing circumstance to connect the accused with the crime.;(f) penal code - section 302--murder--circumstantial evidence--every hypothesis except conviction should be based on conclusive evidence--held, it is. unsafe to convict accused unless there is chain of circumstances leading to. only conclusion that accused and accused alone committed crime;in a case resting on circumstantial evidence, it should be such, which excludes every other hypothesis, other than the guilt of the accused. the circumstances upon which such conviction is sought to he based should of conclusive character in the sense that they should be incapable of any other explanation and must be totally incompatible with the innocence of the accused. in other words unless the chain of evidence inexorably leads to the conclusion that it is the accused and accused alone, who has committed the crime, it will be obviously unsafe to convict him.;appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - p-16 was well proved. 11. the factum of homicidal death of daya lal is not in dispute, which has been well proved by the testimony of pw-1 dr. p-1 reveals that dayal lal had sustained incised wounds as well as spindle shaped wounds. in other words unless the chain of evidence inexorably leads to the conclusion that it is the accused and accused alone, who has committed the crime, it will be obviously unsafe to convict him.rajendra saxena, j.1. the appellant has filed this appeal feeling aggrieved by the judgment dated 7-12-1993 passed by the learned sessions judge, dungarpur, whereby she was found guilty for the offence under section 302, i.p.c. and was sentenced to imprisonment for life and to pay a fine of rs. 100/-; in default to further undergo one month's simple imprisonment.2. briefly the prosecution case is that on the night intervening 20th and 21st may, 1992, appellant smt. kanku and her husband deceased daya lal were sleeping in their padsaal (room), which was bolted from inside, that the said room was also connected with the kitchen and that the door of the kitchen was also bolted from inside in the night by pw-12 smt. kuri, the mother-in-law of the appellant. it is alleged that at about 1.30 a.m., pw-2 val ji, the elder brother of the deceased, pw-4 smt. lali, wife of val ji, pw-9 smt. geeta, pw-12 smt. kuri and bhem ji, who were respectively the sister, mother and father of the deceased and who were sleeping in the court yard of the house were awakened by the screams raised by the appellant. the aforementioned witnesses entered into that room, through the kitchen door, which was lying open. pw-2 val ji tried to put on the switch of the electrical bulb inside that room, but there was no power supply. he, therefore, lit a torch and found that appellant was standing near the cot, where daya lal was lying dead and that daya lal had sustained injuries on his neck and right lower jaw and his baniyan and the goodra were stained with blood. it is further the case of the prosecution that hearing the alarm, pw-8 hekar ji and others also came there and that on being inquired by them appellant smt. kanku informed them that she and her husband were sleeping on separate cots, that the door of the room was open, that she was awakened when some person pressed her mouth, and that she noticed that another person snatched away gold kanthi and ear tops from her neck and ear. she also informed that near the cot of her husband, two more persons were standing, that one of them had pressed the mouth of her husband - daya lal, who managed to remove the hand of the culprit from his mouth and told that he had identified them and that thereupon one person inflicted 2-3 blows to her husband by a sharp edged weapon and that thereafter all the four assailants ran away from the back door of the room. on 21-5-1992 at 6 a.m. pw-8 khakar ji lodged an oral report about the said incident at police station, chitri. thereupon f.i.r. ex. p-10 was scribed and a case under sections 460, 302, i.p.c. was registered. pw-11 fateh singh, a.s.i. rushed to the spot, inspected the site and prepared site-plan ex. p-12 and memo thereof ex. p-11. there he noticed a streak of blood-stains on the wall of the room nearby the cot, where the dead body of daya lal was lying. he also found blood stains underneath that cot as also on a stone grinding wheel (gatti). he seized and sealed the bloodstained earth, and controlled sample vide seizure memo ex. p-13 and the bloodstained baniyan and the 'gudra' of the deceased vide seizure memo ex. p-l5.3. pw-1 dr. r.k. yadav conducted the autopsy on the dead body of daya lal on the spot and found following injuries :-1. incised wound 3 cm x 114 cm x 1/2 cm on the neck just behind right ear;2. a stab wound measuring 5 cm x 3 cm x 7 cm on the right side of the trachea;3. a spindle shaped stab wound 3 cm x 1 1/2 cm x 5 cm below injury no. 2;4. another spindle shaped wound measuring 2 cm x 1 cm x 2 cm just below injury no. 3; the margins of those wound were smooth and blood was clotted;5. bruise measuring 8 cm x 4 cm on the right shoulder;6. wound measuring 5 cm x 3 cm on the right shoulder;7. swelling measuring 10 cm x 5 cm on the left shoulder having four abrasions 1/2 cm x 1/2 cm size.on dissecting the body, he found a fracture of the fourth cervical vertebrae with laceration of spinal cord and a fracture of the right lower jaw. the doctor prepared the postmortem report ex. p-1 and opined that the cause of the death was sudden and excessive haemorrhage from the wounds of the large vessels of the right side of the neck.4. it is alleged that in the evening of 24-5-1992, pw-2 val ji produced a blood-stained axe with handle to the investigation officer alleging that he had found the same lying on the roof of the cattle shed in the fodder. the investigation officer seized and sealed that axe vide seizure memo ex. p-2. during investigation, it transpired that appellant had strained relations with the deceased and that 2-3 days prior to the incident, the former had beaten her. the appellant was arrested on 24-5-1992. it is the case of the prosecution that on that day at about 7.20 p.m. the appellant volunteered information ex. p-20 and in pursuance thereof got her bloodstained blouse and sari recovered from the earthen kothi placed in her kitchen, which were seized and sealed vide recovery memo ex. p-21. immediately thereafter, the appellant gave another information ex. p-19 at 7.35 p.m. and got recovered a pair of gold ear tops and gold kanthi by digging a pit in the cattle-shed connected with her room. those ornaments were also seized and sealed vide recovery memo ex. p-16. it is also the case of the prosecution that on 25-5-1992 at 7 a.m. appellant further volunteered information ex. p-22 and in pursuance thereof got one bloodstained 'daranti' recovered from an open shelf (aliya) situated on the door of the kitchen. that 'daranti' was seized and sealed vide the recovery memo ex. p-8. sealed packets of the blood-stained clothes of the deceased, bloodstained soil, controlled sample, bloodstained clothes of the appellant and bloodstained axe and 'daranti' were sent to the forensic science laboratory for chemical and serological examination, but the prosecution did not care to file the report of the f.s.l. after usual investigation a challan was filed against the appellant in the court of munsif & judicial magistrate, sagwara, who committed the case to the learned sessions judge.5. the appellant was charged for the offence under section 302, i.p.c. to which she pleaded not guilty and claimed trial. the prosecution examined as many as 13 witnesses. the appellant in her plea recorded under section 313, cr.p.c. denied all the circumstances appearing against her in the prosecution evidence and asserted that no recovery was made at her instance. she further asserted that some thieves had murdered her husband and taken away her ornaments. however, she did not examine any witness in her defence.6. the learned sessions judge disbelieved the alleged recoveries of the bloodstained blouse and sari of the appellant as also the recovery of 'daranti'. he further held that since the axe was not recovered at the instance of the appellant, recovery thereof did not connect her with the crime. he, however, held that thought there exist some minor contradictions in the prosecution evidence about the alleged recovery of the ornaments and those ornaments have also not been produced in the court, still then recovery thereof vide recovery memo ex. p-16 was well proved. he further held that since the appellant was present in the room, where the murder of her husband took place and the doors of that room were bolted from inside, her defence version stood falsified. he, therefore, by him impugned judgment found the appellant guilty for the offence under section 302, i.p.c. and sentenced her in the manner detailed above. hence this appeal.7. we have heard shri doongar singh, the learned counsel for the appellant and shri d.r. bohra, the learned public prosecutor for the state at length and carefully perused the record of the lower court in extenso.8. shri doongar singh has strenuously urged that there is no direct evidence in this case and that not even a single circumstance has been established against the appellant to successfully bring home the offence of murder. according to him, there is not a fringe of evidence to show that the room, where the appellant and her husband were sleeping was bolted from inside. on the other hand the prosecution witnesses have specifically stated that on hearing the alarm, they had entered into that room from the rear door of the kitchen, which was lying open. he has contended that admittedly the alleged recovered ornaments have neither been produced in the trial court, nor those were identified by any witness, nor any test parade of those ornaments was arranged by the investigating officer. therefore, the alleged recovery of those ornaments does not connect the appellant with the alleged murder. on the contrary the said recovery is tainted and fictitious. he has submitted that the recoveries of the bloodstained blouse and sari and the 'daranti' at the instance, of the appellant and recovery of axe have been disbelieved by the learned trial judge. hence, simply because that the trial judge found the defence theory false it cannot by any stretch of imagination be held that the prosecution has successfully brought home the offence under section 302, i.p.c. against her.9. on the other hand, shri bohra has reiterated the reasoning given by the learned trial judge and supported the impugned judgment.10. we have given our most anxious and earnest consideration to the rival submissions made before us. there is no direct evidence and the whole case hinges on circumstantial evidence.11. the factum of homicidal death of daya lal is not in dispute, which has been well proved by the testimony of pw-1 dr. r.k. yadav and the post-mortem examination report ex. p-1. however, the prosecution has not cared to show the alleged weapon of offence, namely the axe or 'daranti' to the doctor to establish that the injuries sustained by dayal lal could have been caused by those weapons. a careful perusal of the post-mortem examination report ex. p-1 reveals that dayal lal had sustained incised wounds as well as spindle shaped wounds. this fact itself proves that he had received injuries from more than one weapon of offence. the learned trial judge has conveniently ignored this important and material factor.12. at the time of the alleged incident, the appellant was aged about 19 years. as regards motive, there is no credible evidence worth the name. pw-2 val ji has stated that the relation of the appellant and daya lal were initially cordial, but thereafter they used to quarrel. but he has not given any instance of such quarrel nor disclosed any reason for the strained relations between them. pw-3 kachru, who is the immediate neighbour, has deposed that in his presence daya lal and kanku never had any quarrel. pw-4 smt. lali wife of val ji has not stated that the relations of the appellant and the deceased were strained or that they used to quarrel. pw-9 smt. geeta, who is the sister of the deceased, has specifically stated that she did not know as to whether the appellant and the deceased had any strained relations. pw-12 smt. kuri has also deposed likewise. therefore, from the prosecution evidence, it does not stand proved that 2-3 days prior to the alleged incident, the deceased had beaten the appellant or that they used to quarrel or had strained relations. moreover, the alleged motive does not commensurate with the offence. had the relations between the deceased and the appellant been so strained, then they would not have even slept in the same room. therefore, in this case, motive has not at all been proved.13. another circumstance on which the learned trial judge has relied is that both the doors of the room were bolted from inside and therefore it was the appellant who committed the murder of daya lal. but this fact also does not stand proved by the prosecution evidence. during investigation, it was alleged that pw-12 smt. kuri had bolted the door of the kitchen from inside on the fateful night, but before the trial court, she has not uttered a single word about it. on the other hand, she has deposed that on hearing the alarm raised by the appellant, she tried to open the main door of the room, which was bolted from inside and that thereupon, she along with val ji and others entered the room from the back door of the kitchen which was lying open. she has not stated that she had bolted the door of the kitchen from inside. pw-2 val ji has also not deposed that he had bolted the kitchen door from inside on the fateful night. other prosecution witnesses have not said anything on this aspect. in such circumstances, there is not an iota of evidence to prove that the door of the kitchen was bolted from inside on the fateful night. on the other hand, from the testimony of pw-11 fateh singh, investigating officer, who has proved the site-plan ex. p-12 and memo thereof ex. p-11, it is amply proved that attached with the room, where the alleged incident took place, there was another room, which was used as a cattle-shed, that there was no door in between and that on the rear wall of that cattle-shed, there was a window, measuring 2 ft. x 2 ft. pw-2 val ji has also specifically admitted that there is a small door above the padsaal (room), which always remains open and that adjacent to that room is the house of his uncle. in such circumstances, it is not at all proved that at the time of the alleged incident all the doors leading to the room, where the incident took place, were bolted from inside. hence this possibility cannot be ruled out that some persons might have entered into the room, where daya lal was sleeping either from the open room above the 'padsaal' or from the back door of the kitchen, which was found open by the prosecution witnesses immediately after the incident. in view of this, in our considered opinion the learned trial judge has misread the evidence and have wrongly held that all the doors of the room, where the incident took place, were bolted from inside and that there was no possibility of any other person entering in that room. he has thus committed an illegality of fact, as such his finding on this count is perverse and against the record. moreover, only on the basis of the said circumstance, it cannot be conclusively held that it was nobody else except the appellant, who had committed the murder of the deceased.14. it may also be mentioned here that according to the prosecution, a blood-stained axe as also a blood-stained 'daranti' were recovered. the alleged recoveries of these two weapons per se demolishes the theory of the prosecution that there was a single assailant, who inflicted injuries to the deceased. moreover, recoveries of 'axe' & 'daranti' have been rightly disbelieved by the learned trial judge. since no report of the forensic science laboratory was submitted by the prosecution, the alleged recovery of daranti' also does not connect the appellant with the crime.15. as regards the alleged recovery of ornaments at the instance of the appellant, the prosecution evidence is quite vague, inconsistent and incredible, p.w. 2 val ji deposed that the appellant had given information about the concealing of the ornaments on the next day of the alleged incident i.e. on 22-5-1992 and that on that day, she got recovered those ornaments in the morning. he has also stated that the police along with 2-3 other persons had taken out the ornaments by digging a pit inside the cattle-shed. on the other hand, as per statement of pw 11 fateh singh, i.o., he had arrested smt. kanku on 24-5-1992 and that on the same day she had volunteered information ex. p. 19 and in pursuance thereof got one pair of gold ear tops and gold kanthi recovered by digging a pit inside her cattle-shed vide recovery memo ex. p. 16. while pw 10 - mohan la, who is the motbir of recovery memo ex. p. 16, has stated that the police had seized the bloodstained sari and blouse from the person of appellant smt. kanku, who was putting on those garments and that on the same day, she also got the ornaments recovered from her cattle-shed. it may be mentioned here that as per the statement of pw 11 fateh singh, the blood-stained blouse and sari were recovered at the instance of the appellant from the earthen kothi, placed in the kitchen vide recovery memo ex. p. 21 dated 24-5-1992. thus, the evidence regarding the alleged recovery of the ornaments at the instance of the appellant is replete with material contradictions. apart from it, admittedly those ornaments were neither produced in the court during trial, nor those were got identified by any witness during investigation. those ornaments were also not stained with blood. therefore, the alleged recovery of the ornaments has not been proved beyond reasonable doubt and the same does not connect the appellant with the crime.16. another circumstance on which the learned trial judge has placed reliance is that there was no injury on the person of the person of appellant hence her version that somebody had snatched her ornaments from her ear and neck could not be believed. it will suffice to point out that absence of any injury on the person of the appellant is not a circumstance proving her guilt. on the other hand, pw 2 val ji has specifically stated that when he went inside the room, he had found human excreta on the clothes of the appellant, which shows that some force was used against her and due to fear she passed her stool. therefore, absence of any injury on the person of the appellant is not at all a circumstance connecting her with the guilt and the trial judge has committed a grave error in relying upon such a feeble immaterial circumstance sufficient for holding the appellant guilty for the offence under section 302 i.p.c.17. another circumstance relied upon by the learned trial judge is that the version of the appellant about the unknown intruders coining in her room, snatching away her ornaments was found to be falsified, and therefore, she had committed the murder of her husband. this appears to be a very strange logic, which cannot be accepted. it is needless to mention that the case of the prosecution has to be tested independently from the defence version and falsity of the defence cannot help the prosecution to establish its own case. the prosecution has to stand on its own legs by adducing clear, cogent and convincing evidence. the prosecution has to prove' the guilt against the accused beyond all reasonable doubts. therefore, falsity of defence evidence is not at all a convincing circumstance to connect the accused with the crime.18. it is a cardinal principle of law that in a case resting on circumstantial evidence, it should be such, which excludes every other hypothesis, other than the guilt of the accused. the circumstances upon which such conviction is sought to be based should of conclusive character in the sense that they should be incapable of any other explanation and must be totally incompatible with the innocence of the accused. in other words unless the chain of evidence inexorably leads to the conclusion that it is the accused and accused alone, who has committed the crime, it will be obviously unsafe to convict him.19. in the instant case, there is no evidence worth the name that the door of the kitchen attached with the room, where the appellant and the deceased were sleeping was bolted from inside on the fateful night and that it was not possible for any other person to enter into that room. the motive of strained relations between the appellant and the deceased has not been proved at all. the alleged recoveries of the blood-stained blouse and sari of the appellant and the blood-stained 'daranti' at the instance of the appellant have rightly disbelieved by the learned trial court. the alleged recovery of the blood-stained axe, which was produced by p.w. 2 val ji does not connect the appellant with the crime. on the other hand the same makes the prosecution story doubtful. the recovery of the ornaments at the instance of the appellant has also not been proved beyond reasonable doubt. rather the said recovery appears to be tainted and fictitious. the theory of recovery of two weapons demolishes the prosecution case that there was a single accused in this case. thus, simply because the appellant was sleeping with the deceased on the fateful night and that she did not receive any injury it cannot be held that these circumstances conclusively and clinchingly bring home the guilt to its hilt against the appellant. hence, for the reasons mentioned above, in our considered opinion the conviction and sentence of the appellant cannot be sustained.20. in the premise of above discussion, we allow this appeal and quash the impugned judgment and set aside the conviction and sentence passed against the appellant and acquit her of the offence under section 302 i.p.c. the appellant be released forthwith, if not required in any other case. the superintendent, central jail, jaipur be informed accordingly.