Fatia @ Fatta Ram vs The State of Rajasthan

U/s. 302

IPC","Life imprisonment and to pay a fine of Rs.3,000/-; in default of payment of fine to further undergo three months rigorous

imprisonment.

U/s. 460

IPC","Ten years rigorous imprisonment and to pay a fine of Rs.3,000/-; in default of payment of fine to further undergo three months

simple imprisonment.

U/s. 392

IPC","Ten years rigorous imprisonment and to pay a fine of Rs.3,000/-; in default of payment of fine to further undergo three months

rigorous imprisonment.

entirety and objectivity.,

The Medical Board consisting of Dr. M.M. Jangid and Dr. Rajendra Punmia (PW 21) conducted autopsy over the dead body of the deceased,

Smt. Harupi. As per the post mortem report (Ex.P/38) and deposition of Dr. Rajendra Punmia (PW 21) following ante mortem injuries were found,

on the person of the deceased :,

(1) Incise wound 8 cm x 3 cm muscle deep (clotting of blood).,

(2) Incise wound 18 x 4 cm Bone deep on the neck (clotting of blood).,

The cause of death was opined to be shock due to external and internal haemorrhages. Thus, looking at the nature of injuries and cause of death of",

Smt. Harupi, her death is concededly homicidal in nature.",

Indisputably, the entire case of the prosecution is based on circumstantial evidence. It is settled law that for conviction on proof of",

circumstantial evidence, the following triad tests must be satisfied:-",

(i) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a",

shadow of doubt;,

(ii) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and,

(iii) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved",

against him. (vide Mahmood vs. State of U.P., AIR 1976 SC, 69).",

In Sharad Birdhichand Sarda Vs. State of Maharashtra"", AIR 1984 SC 1622, the Hon''ble Supreme Court laid down following five golden",

principles named as panchsheel"" of the proof of a case based on circumstantial evidence :",

(1) 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.,

(2) 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.,

(3) the circumstances should be of a conclusive nature and tendency.,

(4) they should exclude every possible hypothesis except the one to be proved, and",

(5) there must be a chain of evidence so complete 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.,

In Ramreddy Rajshekhanna Reddy vs. State of Andhra Pradesh, 2006(3) Supreme, 175, the Apex Court held as under:-",

It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of",

incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit,

no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion,",

however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis",

of the circumstantial evidence.""",

In Palvinder Kaur vs. The State of Punjab, AIR 1952, SC, 354, the Hon''ble Apex Court held that where there is no direct evidence and the",

circumstantial evidence answers the questions, essential to the proof of the offence only vaguely and indefinitely and is not incompatible with the",

theory of the innocence of the accused there is no evidence on which the accused can be found guilty.,

In Sarwan Singh vs. State of Punjab, AIR 1957 SC, 637, the Apex Court observed thus:-",

It is no doubt a matter of regret that a foul coldblooded and cruel murder should go unpunished. There may also be an element of truth in the,

prosecution story against the accused. Considered as a whole, the prosecution story may be true; but when ''may be true'' and ''must be true'' there",

is inevitable a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable",

evidence before an accused can be convicted.""",

In Ashish Batham vs. State of M.P., (2002) 7 SCC 317, their Lordships of Supreme Court indicated that mere suspicion, however strong it",

may be, cannot take the place of legal proof. It was observed as under:-",

Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of",

the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the",

question of indicating or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in",

which it was found to have been committed. Mere suspicion, however strong probable it may be is no effective substitute for the legal proof",

required to substantiate the charge of commission of a crime and graver the charge is, grater should be the standard of proof required. Court",

dealing with criminal case at least should constantly remember that there is a long mental distance between may be true"" and must be true"" and this",

basic and golden rule only helps to maintain the vital distinction between conjectures"" and sure conclusion"" to be arrived at one the touchstone of a",

dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of,

the evidence brought on record.""",

Thus, in the aforesaid backdrop, we have to adjudge as to whether the circumstances on which the prosecution relies are established by clear",

and cogent evidence beyond the reasonable doubt and whether the cumulative effect of the circumstances said to be proved exclude every other,

hypothesis save the one that the appellant is guilty of the charge imputed.,

As per deposition of Hakma (PW 3), deceased Smt. Harupi used to live alone in her house. The factum of deceased Smt. Harupi living alone",

is supported by deposition of Smt.Fatma (PW 13), who was neighbour of Smt. Harupi and used to visit her regularly as also by deposition of",

Chaina Ram (PW 11), the son of the deceased Harupi, who used to live at Calcutta, being in job there.",

Hakma (PW 3) has deposed that the accused Fatia had picked up quarrel with the deceased Harupi a few days before the date of,

occurrence, which was revealed to him by the deceased Harupi and he had assured her to talk with Fatia. The factum of incident of quarrel was",

admittedly not mentioned in the written report (Ex.P./7), but in the cross-examination Hakma (PW 3) has reiterated that the incident of quarrel had",

occurred 2-3 days before the incident of death of his aunt Smt. Harupi.,

As per deposition of Hakma (PW 3), the house of deceased Smt. Harupi was found locked and therefore, search was made but she could not",

be traced out. In these circumstances, on 27.01.06, the lock of the house of the deceased was break opened and on going inside, Hakma (PW 3)",

saw that neck of her aunt has been cut by some sharp edged weapon. He has stated in unequivocal terms that a Kadla and Mathh, which the",

deceased used to wear were found missing. The fact that the deceased used to wear the said silver ornaments stands confirmed by the deposition,

of Smt. Fatma (PW 13), who deposed that Harupi used to wear Kadla and Mathh regularly but when she saw her dead, the ornaments were",

missing.,

The Kadla of the deceased were recovered at the instance of Smt. Khimi, the grand mother of accused Fatia from the possession of Ramesh",

Kumar (PW 10), who has deposed that on 26.01.06, around 2-3 PM Khimi, Fatia and wife of Fatia had visited his shop and Khimi proposed to",

sell the pair of Kadla, which at the relevant time, Smt. Ratna was wearing. The Kadlas were sold to Ramesh Kumar for consideration of",

Rs.5,820/-, stating that they are selling the Kadla as they intend to go out for making idol. It is pertinent to note that while selling the Kadlas,",

accused Fatia executed a document (Ex.P./19), wherein while acknowledging the factum of sell of Kadlas as aforesaid, it is clearly mentioned that",

if the same is found to be stolen article, he will be responsible for the same. The accused appellant has not disputed his signature on the said",

document and the same tallies with his admitted signature available on record.,

The accused Fatia had actually moved from his village Pratapgarh Jhupa stands fortified from the fact that he along with his wife Smt. Ratna,

were arrested on 03.02.06 by the police at Srinagar and on search after the arrest, two railway tickets (Ex.P./17) showing their movement from",

Jodhpur to Jammu Tawi were recovered.,

Further, at the instance of Smt. Ratna, the wife of accused Fatia, Silver Mathh was recovered vide Ex.P./5. The recovery effected stands",

established by deposition of witnesses Bhikalal (PW 9) and Kupa Ram (PW 11). Both the witnesses have stated that the recovery was made at,

the instance of Ratna by the police in their presence.,

The recovered silver ornaments i.e. pair of Kadla and a Mathh were identified by the son of deceased Chaina Ram (PW 12) to be that of her,

mother Harupi vide proceedings for identification (Ex.P./22 & Ex.P./29) conducted by Judicial Magistrate (First), Bali on the request of SHO,",

Police Station, Sadari vide Ex.P./28.",

At the instance of accused Fatia, the weapon of offence blood stained Kunt, his own blood stained clothes and keys were recovered from his",

own house while opening the lock by key recovered from Smt. Ratna vide Ex.P./20. The recovery of said articles also stand fortified by deposition,

of Bhikalal (PW 9).,

The contention of learned counsel for the appellant that as per deposition of Hakma (PW 3), the clothes of the deceased, the clothes of the",

accused as also the weapon of offence Kunt were recovered on the same day and thus, the recovery of the said articles at the instance of the",

accused subsequently is concocted and false, is also devoid of any merit inasmuch as Hakma (PW 3) was not the person in whose presence the",

recovery were made at the instance of the accused. As noticed above, the recovery of the articles at the instance of accused Fatia and Smt. Ratna",

stands fortified by deposition of witnesses of recovery Bhikalal (PW 9) and Kupa Ram (PW 11). Moreover, the recovery of the cloth of the",

deceased were made on 27.01.06 whereas recovery at the instance of the accused Fatia and Smt. Ratna was made on 04.02.06 while opening,

the lock of his house by key recovered from Ratna at the time of her arrest on 03.02.06. Further, no question whatsoever were asked by the",

defence to investigating officer Bheru Singh (PW 19) in regard to the said recoveries. Thus, we do not find any good reason to doubt the",

genuineness of the recoveries made at the instance of the accused persons as suggested by the counsel appearing on behalf of the appellant.,

The articles recovered inter alia the blood stained clothes of accused Fatia, the blood stained Kunt were sent for the examination to the",

Forensic Science Laboratory, Jodhpur vide Ex.P./24, which were deposited with the FSL, Jodhpur vide Ex.P./25. As per the FSL Report",

(Ex.P./37) inter alia the weapon of offence i.e. Kunt and the pant of the accused were found to be stained with ''B'' group blood i.e. the blood,

group of the deceased.,

Thus, the chain of circumstances noticed hereinabove, stand established on the basis of cogent evidence on record, which are of conclusive",

nature and tendency and indicate towards the guilt of the accused appellant beyond reasonable doubt.,

It is true that the lock broken was not seized and no attempt was made to ascertain whether the keys recovered were that of broken lock or,

not but this infirmity crept in, is in no manner fatal to the prosecution case and on that account, the conclusion arrived at regarding the guilt of the",

accused on the basis of the circumstances established by unimpeachable evidence is not affected in any manner whatsoever.,

For the aforementioned reasons, the appeal fails, it is hereby dismissed.",