Hazariya vs State of Rajasthan

Shyam Sunder Byas, J.—Accused Hazariya was convicted u/s 302 IPC and sentenced to imprisonment for life with a fine of Rs. 100/-in default of the payment of fine on further undergo three months'' rigorous imprisonment by the learned Additional Sessions Judge, Nagaur by his judgment dated March 19, 1981. He has come-up in appeal and challenges his conviction.

Briefly stated, the prosecution case is that the deceased-victim Poosa Ram Dholi was the husband of Smt. Sohini alias Prem (co-accused acquitted by the trial court). They were residents of village Barawata Tehsil Sambhar district Jaipur. Poosa Ram was one-eyed person and had prominent scar marks of small-pox on his face. He was a man of lean and weak constitution. Accused Hazariya came in contact with this couple. It is suggested that illicit intimacy took place between the appellant and Smt. Sohini. The appellant brought the couple to village Chhapri Badi Tehsil Deedwana district Nagaur and all the three i.e. the appellant and the couple, started working at the well of PW 8 Ganpatsingh. At times, they also used to work as labourers with some other persons. They raised a hut in the field of Ganpatsingh and lived there in.

In the evening intervening night of July 2/3, 1979, PW 1 Shaitan Singh was working at his tea-stall in village Daulatpura, which is nearly four miles away from Deedwana. At about 11.00 or 11 30 p.m. while he was in his tea-stall, he saw the appellant Hazariya, one woman and a man coming from the side of village Chhapri and going towards Deedwana. The appellant was having Farshi with him. There was some talk between him and accused Hazariya. At about 2 00 a.m. in the same night, while Shaitansingh was preparing tea for PW 7 Mohan and PW 13 Rameshwar, he again saw accused Hazariya and one woman coming from Deedwana side and going towards village Chhapri.

At about 7.00 a.m. on July 6, 1979, PW 6 Astali Khan of village Daulatpura learnt that a dead body was lying buried in a sand-dune at some distance from the road going towards Deedwana. He and many persons went there and found the dead body buried. One foot of the dead body was protruding out of the pit Astali Khan went to Police Station, Deedwana and verbally lodged report Ex P 26 at about 9.45 a.m. The Station House Officer Kan Singh (PW 20) arrived on the spot with the Sub-Divisional Magistrate and doctor Laxman Singh (PW 4) He disinterred the dead body from the pit and prepared its inquest report. The dead body was in the State of complete decomposition. It was the dead body of a Hindu male. The post-mortem examination of the dead body was conducted on the spot at about 2.50 p.m. on the same day by Dr. Laxmansingh. He found the left lower limb and flesh, toes of right foot and flesh of arm of the dead body eaten away by wild animals. The doctor noticed the following ante-mortem injuries on the dead body:

(1) Incised wound 5" x 2" x 3" covering whole nape of neck and right side of neck, slightly oblique wound cutting the vertebrae column and spinal cord at level of 4th ear rid vertebrae and blood vessels of right side of neck;

(2) Incised wound 3" x 1" x 1" on dorsum of right hand obliquely from base of index finger, fracturing the II metacarpal bone;

(3) Incised wound 2" x 1/2" x 1/2" on right side of toes over mandibular area. It has fractured the mandible.

The doctor was of the opinion that the death of the victim had taken place due to incised wound of neck cutting the spinal cord and blood vessels. He prepared the report Ex. P 23. Since the death, according to medical opinion, was homicidal, the police registered a case u/s 302 I.P.C. The Investigating Officer seized and sealed the clothes found on the dead body. The photographs of the dead body were also taken. The clothes and the photographs were shown to PW 14 Suwa, who is the brother of Poosaram. He identified that the photographs and the clothes were of his brother Poosaram. The appellant and Smt. Sohini were arrested on July 17, 1979. At the time of his arrest, accused Hazariya was wearing one bushirt and one pant. They were seized and sealed as they contained some stains of blood. In consequence of the information furnished by accused Hazariya on July 19, 1979, one Farshi (Article 1) was recovered lying buried in a sand-dune near village Daulatpura. In consequence of the information furnished by co-accused Snot. Sohini, one Lehanga and one Odna, suspected to contain stains of blood, were recovered on July 19, 1979. The appellant and co-accused Smt. Sohini also took the Investigating Officer and Motbirs to the place where the dead body was found buried in the. sand-dune. The seized articles were sent for chemical examination. No blood was detected on the Farshi. Blood was also not detected on the pant of the appellant. Some stains of blood were detected on the bushirt of the accused, but it could not be ascertained whether it was of human origin or not. On the completion of investigation, the police presented a challan against the appellant Hazariya and Smt. Sohini in the Court of Munsif cum Judicial Magistrate, Deedwana, who, in his turn, committed the case for trial to the Court of Sessions Judge, Merta. The learned Sessions Judge framed charges u/s 302 and in alternative u/s 302/34 I.P.C. against both of them, to which they pleaded not guilty and claimed to be tried. The case, thereafter came for trial before the Additional Sessions Judge, Nagpur. In support of its case the prosecution examined twenty witnesses and filed some documents. In defence.no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating material against Smt. Sohini to connect her with the murder of her husband Poosa Ram. She was, therefore, acquitted. The Additional Sessions Judge was however, of the opinion that Poosa Ram was done to death by the appellant Hazariya. The appellant was, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, the accused Hazariya has taken this appeal.

We have heard Mr. R.K. Gehlot, learned Counsel for the appellant and the learned Public Prosecutor Mr. S.K. Mathur. We have also gone through the case file carefully.

Mr. Gehlot did not challenge that the death of the male person, whose dead body was found buried in the sand-dune, was homicidal and not natural. We have also gone through the testimony of PW 4 Dr. Laxman Singh, who conducted the autopsy of the dead body and find no reasons to distrust his opinion about the cause of death. Dr. Laxman Singh positively stated that the cause of death was incised wound on neck cutting the spinal cord and blood vessels. I he death of the male person, whose dead body was found buried, was not natural. It was homicidal.

Admittedly, there is no direct evidence in the case. The prosecution case rests squarely on the circumstantial evidence. For case and convenience, the circumstantial evidence may be categorised in the following heads:

(1) In the night between July 2/3, 1979, appellant Hazariya was seen with one man and one woman coming from the side of village Chhapri and going towards Deedwana. The appellant and one woman were seen returning from Deedwana side and going towards village Chhapri after some time in village Daulatpura. The witness speaking on this count are PW 1 Shaitan Singh, PW 7 Mohan, PW 11 Hanumana Ram and PW 14 Rameshwar;

(2) the appellant, the deceased Poosa Ram and the co-accused Smt. Sohini were living together in village Chhapri Badi at the well of PW 8 Ganpat Singh, who had provided employment to them. They lived there for some days and thereafter all of them went away together. The witnesses speaking in this behalf are PW 8 Ganpat Singh, PW 12 Jeewan Singh and PW 18 Smt. Kamla;

(3) when the appellant Hazariya was arrested on July 17, 1979, he was wearing pant (Article 2) and bushirt (Article 3), These clothes were seized and sealed. Blood was found on bushirt (Article 3) though it could not be ascertained whether it was of human origin or not:

(4) in consequence of the information furnished by the appellant, one Farshi (Article 1) was recovered from a place not far from the sand-dune where the dead body was found buried;

(5) illegal intimacy had developed between the appellant and the deceased''s wife Smt. Sohini. It served as a motive for the appellant to finish Poosa Ram for ever; and

(6) the appellant took the police and Motbirs to the spot on July 19, 1979 where the dead body was, found earlier on July 6, 1979.

In assailing the conviction, two contentions were raised by Mr. Gehlot, viz., (1) there is no evidence to show that the dead body found, buried on the sand-dune was that of Poosa Ram, and (2) the various sets of circumstantial evidence, referred to above, do not conclusively point out that Poosa Ram was done to death by the appellant. It was argued that the aforesaid sets of circumstantial evidence even if taken as proved, were not sufficient to connect the appellant with the killing of Poosa Ram.

It was on the other hand, submitted by the learned Public Prosecutor that PW 14 Suwa is the real brother of Poosa Ram and he had correctly identified the clothes found on the dead body to be of his brother Poosa Ram. He further identified the photographs of the dead body to be of his brother Poosa Ram. It is, therefore, not open to any doubt that the dead body of the Hindu-male found buried in the sand-dune was that of Poosa Ram. It was further submitted by the learned Public Prosecutor that the various sets of circumstantial evidence were sufficient to point out that the appellant, the deceased and Smt. Sohini were living together at the well of PW 8 Ganpat Singh in village Chhapri Badi. They were seen going together in the night between July 2/3, 1979 in village Daulatpura. After some time, appellant Hazariya and one woman were seen coming back The various recoveries of the articles afford a material corroboration to the prosecution story. When all these sets of evidence are taken into consideration, the cumulative effect is that it was the appellant and none else who was the perpetrator of the murder of Poosa Ram. We have taken the respective submissions into consideration.

Taking the first contention relating to corpus delicti, it was contended by Mr. Gehlot that the dead body recovered buried in the sand-dune has not been established to be that of Poosa Ram. The dead, body was not identified when it was disinterred from the sand-dune. It was argued that unless the dead body disinterred is established to be that of Poosa Ram, it cannot be said that Poosa Ram was done to death. We have examined the contention and find no substance in it. In a charge of murder, the corpus delicti is the factum of the death of the deceased. Here in the instant case when the dead body was disinterred, the clothes found on it were preserved. Photographs Ex. P 9 to Ex. P 15 were also taken of the dead body. PW 14 Suwa is the real brother of the deceased Poosa Ram. He deposed that the clothes and the copper bangle found on the dead body were that of his brother Poosa Ram. He further deposed that the dead body shown in photographs Ex P 9 to Ex. P 13 are of his deceased brother Poosa Ram. He was cross-examined but nothing could be elicited which may cast doubt on his testimony. The dead body can be identified by the clothes and other articles found on it as well as from its photographs. Poosa Ram has not been seen alive after the registration of the case at the police station. In order to establish the charge of murder, the corpus delicti must be proved beyond reasonable doubt. The testimony of PW 14 Suwa in itself is sufficient to prove the death of Poosaram. The contention, thus, fails.

It would be now proper to take up the various sets of circumstantial evidence and we shall take the evidence of category No. 2 to start with.

The prosecution case is that the appellant, the deceased and Smt. Sohini were living together at the well of PW 8 Ganpatsingh in village Chhapri Badi. The witnesses speaking on this point are PW 8 Ganpatsingh, PW 12 Jeevansingh and PW 18 Kamla. They are all residents of village Chhapri Badi. PW 8 Ganpatsingh deposed that the appellant, the deceased and Smt. Sohini came to him. The appellant was already known to him. On his request, he employed all of them as labourers to work in his fields. They used to work in his fields. They also raised a hut in the field in which they were living together. The same facts were deposed by PW 12 Jeevansingh. PW 18 Kamla deposed that accused and Smt. Sohini used to come to her shop to make purchases. All these three witnesses are independent persons having no bias or grudge against the appellant. The evidence of these witnesses does not stand discredited. From what they testified, it can be said that the appellant, the deceased and Smt. Sohini came to village Chhapri Badi, worked there in the fields of Ganpatsingh PW 8 and lived together in a hut which they raised in the field. These witnesses have not stated that there were illicit relations between the appellant and Smt. Sohini, the wife of the deceased Poosa Ram. Their living together in village Chhapri Badi in itself affords no incriminating circumstance against the appellant. At the most it is natural fact which has affected neither the prosecution nor the accused except that the aforesaid three persons were living together in the hut.

As regards the recovery of Farshi Article 1) in consequence of the information furnished by the appellant whilst under police custody, we may at once say that it furnishes no inculpatory evidence against him. Farshi (Article 1) was sent for chemical examination and no blood was found on it, vide report Ex P 24 of the State Forensic Science Laboratory. There is no other evidence to connect this Farshi (Article 1) with the killing of Poosaram. Before the recovery of weapon at the instance of the accused is taken into consideration, the prosecution must prove its connection with the commission of the offence. It can be done in two ways viz. (I) the presence of human blood on it, and (2) witnesses identified the weapon to have been used by the culprit in the commission of the crime. Here no blood was found on Farshi (Article 1). No witness of the prosecution has stated that Farshi (Article 1) was used in killing Poosaram. PW 1 Shaitansingh, who claims to have seen the appellant going with Farshi did not state that it was Farshi (Article 1), which the appellant was having with him. The recovery of Farshi (Article 1) at the instance and in consequence of the information furnished by the appellant, thus, affords no incriminating evidence nor any link in the chain of circumstantial evidence.

The next set of evidence is that when the appellant was arrested on July 17, 1979 he was wearing pant (Article 2) and bushirt (Article 3). These clothes were seized and sealed and on chemical examination, some human blood was found on bushirt (Article 3) vide report Ex.P 25 of the Serologist. According to prosecution. Poosaram was killed in the night between July 2/3, 1979 and the appellant was arrested much afterwards on July 17, 1979. It is highly surprising that the accused was wearing the blood stained bushirt even after a fort night. It is pertinent to note that these clothes were recovered in consequence of the information furnished by the accused. According to Investigating Officer Kansingh (PW 20) when the appellant was arrested, he was wearing pant (Article 2) and bushirt (Article 3). When these clothes were clearly visible, which the appellant was wearing at the time of his arrest, we fail to understand, where was the question of the appellant''s furnishing information leading to their recovery. The Investigating Officer, out of zeal and enthusiasm, tried to mike the seizure of the clothes to be a recovery of fact u/s 27 of the Evidence Act. We do not appreciate the method adopted by him. When the fact is already known to the police there is no discovery of that fact in consequence of the information on furnished by the culprit. We may here point out that the grouping of the blood could not be ascertained by the Serologist. The blood stains found on bushirt (Article 3) would have furnished a valuable piece of evidence only when the prosecution could establish that the blood found on it tallied with the blood found on the clothes of the deceased: There is no evidence to show that the blood found on bushirt (Article 3) was similar to the blood found on the clothes of the deceased. The clothes of the deceased are Articles 3, 6, 8 and Article 9. This set of circumstantial evidence speaks nothing unfavourable to the appellant.

Coming to the next set of evidence, as stated above, the appellant was arrested on July 19, 1979. On July 19, 1979 he took the police to the place where the dead body was recovered. We again fail to understand how this piece of evidence affords any assistance to the prosecution. The dead body was disinterred on July 6, 1979 and the appellant took the police and Motbirs there on July 19, 1979. The place where the dead body was found was, thus, already known to the police. The appellant''s taking the police and the Motbirs there has, thus no meaning It does not show the guilty conduct of the appellant u/s 8 of the Evidence Act. When the'' spot was already known to the police, there is no meaning in the appellant''s taking the police and Motbirs there nearly after 12/13 days. The conduct of the appellant would have been relevant if just after the occurrence he would have taken the police there and any material object was discovered thereafter.

As regards motive, the suggestion of the prosecution is that the deceased Poosararn was one eyed, had prominent scar marks of small pox on his face and was a person of weak constitution. He was therefore not liked by his wife Smt. Sohini. The appellant some how or other managed to be with the couple. Thereafter illegal intimacy developed between the appellant and Smt. Sohini, Poosaram was found obstacle and hindrance in these illegal relations and he was, therefore, finished for ever by the appellant. We may at once say that there is absolutely no evidence in proof of this suggestion. The only witness examined by the prosecution is the deceased''s brother Suwa (PW 14). He simply stated that his brother Poosaram was one eyed and there were prominent marks of small pox on his face. He stated nothing more. He did not state that Smt. Sohini developed a disliking for her husband Poosaram or wanted to get rid of him. PW 8 Ganpatsingh, PW 12 Jeevan Singh and PW 18 Kamla did not state that when the appellant, the deceased and Smt. Sohini lived in village Chhapri Badi, the appellant had developed illegal intimacy with Smt. Sohini. The suggestion of the prosecution, thus remains only a suggestion and a bald assertion. A fact requires evidence for its proof. It cannot, be left to imagination or conjuncture. Simply because the deceased Poosaram was one-eyed or bad prominent spar marks of small pox on his face, we are unable to infer that the appellant developed illegal intimacy with his wife Smt. Sohini.

The last and the most important set of evidence relied upon by the prosecution against the appellant is that in the night between July 2/3, 1979, he was seen going with one man and one woman from the side of village Chhapri Badi to Deedwana. After sometime, he and one woman were seen returning from Deedwana side and going towards village Chhapri Badi. The witnesses speaking on this count are PW 1 Shaitansingh, PW 7 Mohan, PW 11 Hanuman Ram and PW 13 Rameshwar. PW 7 Mohan and PW 13 Rameshwar were together in a cart. They were going from their village to Deedwana. They stated that in the midnight, they stayed at the tea shop of Shaitansingh PW 1 in village Daulatpura, and took tea there, While they were sitting at his tea shop at about 2.00 am., they saw one man and one woman going together. They could not identify that man and woman. They did not state that they were the appellant and Smt. Sohini who were going together. The evidence of these two persons, thus does not establish it. It cannot be said from what they testified that man was the appellant and the woman was Smt. Sohini.

PW 11 Banumana Ram is the resident of village Chhapri Badi. He deposed that accused Hazariya was known to him because, he used to work at the well of Ganpatsingh (PW 3). Smt. Sohini is also known to him as she used to live with Hazariya. He further deposed that in a night in the month of Assad, 1979, he was going to Deedwana in a camel cart. In the way, he met three persons out of whom two were men and one was a woman. One of those two men one was accused Hazariya. The woman with the accused Hazariya was Smt. Sohini. He could not identify the other man who was with accused Hazariya. In his cross-examination, he could not even successfully maintain this position. He clearly admitted there in that he was unable to say whether the woman going with the accused Hazariya in the night was Smt. Sohini or not. The testimony of this witnesses, at the most shows, that he had seen accused Hazariya going with one man and one woman in a night in the month of Assad, 1979. The identity of that man and woman, who were with accused Hazariya does not stand established from what he testified.

We are then left with the testimony of PW 1 Shaitansingh. We may point out that it was the testimony of this witness which weighed heavily with the Court below in convicting the appellant. Naturally, therefore, his, testimony plays a vital role. This witness runs a tea hotel on the main road in village, Daulatpura. He deposed that accused Hazariya was known to him for last ten years. At about 11.30 p.m. which he stated to be July 6, 1979 in his cross-examination when he was sitting at his tea stall, he saw three persons coming from the side of village Chhapri Badi and proceeding towards Deedwana. Out of them two were men and one was accused Hazariya. Accused Hazariya had a Farshi. He asked Hazariya as to where he was going. Accused Hazariya replied that he was going to Balia. The three persons then proceeded further. At about 2.30 a.m. in mid-night, while he was preparing tea for Mohan (PW 7) and Rameshwar (PW 13) at his tea shop he again saw one man and. one woman coming from Deedwana side. The man was accused Hazariya. The Sessions Judge drew that the man with accused Hazariya was the deceased Poosaram and the woman the co-accused Smt. Sohini. The. learned Sessions Judge was certainly in error in drawing this inference which is absolutely unwarranted from the testimony of this witness. The witness did not state that the man with accused. Hazariya was deceased Poosaram and the woman the co-accused Smt. Sohini. The learned Sessions Judge was certainly in error in drawing this inference which is absolutely unwarranted from the testimony of this witness. The witness did not state that the man with accused, Hazariya was the deceased Poosaram and the woman was Smt. Sohini. In fact, he did not disclose the identity of that man and woman who were, with accused Hazariya. The learned Public Prosecutor argued that according to this witness the man with accused Hazariya was wearing a half sleeves shirt with black spots on it and a saffron turban on his head. The clothes which Were found on the dead body consisted of a saffron turban and one half-sleeves shirt with black spots. The identity thus stands established that the man whose corps was found buried in the sand dune was he who had accompanied the accused Hazariya in that night We are unable to subscribe the view propounded before us for the simple reason that before this witness was examined by police during investigation, he had already seen the dead body, with the clothes on it. He stated that when he went on the sand-dune and saw the dead body, the saffron turban and the shirt were there. If however, he had already seen the shirt and the turban, it was very easy for him to state that the man with the accused Hazariya was wearing saffron turban and shirt with black spots. No credence can be given to the testimony of such a witness. His testimony crumbles down when he admitted in his cross-examination that he had seen the accused Hazariya, one woman and the other man in the night of July 6, 1979. The murder was alleged to have been coming the night between July 2/3, 1979. The dead body was disinterred on July 6, 1979. If it was so, the testimony of PW 1 Shaitan Singh ''stands reduced to pulp. The trial Court took it a case of lapse of memory and an honest error on the part of the witness. It is not a case of the honest error or the lapse of memory because the witness is very specific that--it was the night of July 6, 1979 when he saw the three persons going together and two of them coming back Apart from that, as we have stated, the identity of the man and Woman, who were with accused Hazariya in that night does not stand established. We are not in a position to say that it was the deceased Poosa Ram and the co-accused Smt. Sohini who were going with the accused Hazariya towards Deedwana.

The fact that the accused and the deceased were last seen together is a very strong piece of evidence and constitutes a very valuable link in the chain of circumstantial evidence. But then, it must be affirmatively proved that the accused and the deceased were seen last together. If some person is last seen with the accused, it must be established that some person was the deceased-victim for whose murder the accused has been charged-with. Simply because one is found to be murdered, it cannot be assumed that some person last seen with the accused was that one who has been killed. The identity of that person that he was the person last seen with the accused, must be established by positive and acceptable evidence. Here in the case in our hand, the prosecution has miserably failed to establish that the man who was seen going with the accused Hazariya in the night was the deceased Poosa Ram. As such the fact that Poosa Ram and the appellant were seen last together does not stand proved.

Thus, the various sets of circumstantial evidence read and assimilated together do not disclose any incriminating evidence against the appellant Hazariya. Where a case depends entirely upon the circumstantial evidence, in order to justify the inference of guilt, the facts found must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of his guilt. It is the inference to be drawn from the various sets of circumstantial evidence which decide the guilt of innocence of the accused. As such, it is required that the inference should be natural and not twisted or distorted. Artificial inference should, at all costs, be avoided. In evaluating the circumstantial evidence, the essential'' missing links should not be added by drawing the artificial and unwarranted inferences. In the instant case, the error committed by the trial Court is that'' artificial and unwarranted inferences have been drawn from the testimony of PW 1 Shaitan Singh.

For the reasons slated above, we are unable to maintain the conviction of the accused Hazariya. He was wrongly convicted and sentenced.

The appeal of accused Hazariya is allowed. His conviction and sentence u/s 302, IPC are set-aside, and he is acquitted. He is in jail and shall be forthwith set at liberty if not wanted in any other case.