Mst. Kesar vs State of Rajasthan

N.C. Sharma, J.—The appellant Mst. Kesar before us a young woman of 19 or 20 years of age was convicted on August 20, 1976, by the Additional Sessions Judge, Bikaner, u/s 302 of the Indian Penal Code for having murdered her husband Durga Ram and was sentenced to imprisonment ment for life and a fine of Rs. 250/-. In default of payment of fine, she was further to undergo rigorous imprisonment for one month.

The prosecution case was that Issar Ram Meghwal PW 2 aged 68 years was resident of Bikaner, Mst. Chaini PW 10 aged 60 years was wife of Issar Ram and Mst. Chaini had no male issue and they had only one daughter Mst. Amani who was married to Asu Ram PW 5 of village named Udramsar in Tehsil Bikaner. Durga Ram deceases was son of Asu Ram PW 5 from Mst. Amani daughter of Issar Ram and Mst. Chaini. As Issar Ram and Mst. Chaini had no male issue, deceased Durga Ram used to live with his maternal grand parents at Bikaner. The deceased had been married to the appellant when both of them were tender aged children. It may be mentioned that Asu Ram had one more son named Bhanwara Ram. Bhanwara ram and the deceased were both married to daughters of Jaggu Ram. In other words, wives of both the sons of Asu Ram were real sisters. The appellant mostly used to remain at her parents'' house. Whenever she used to come to her husband, she lived in the house of Issar Ram PW 2 at Bikaner. She had come from her parents'' house to the house of Issar Ram three days before the incident.

During the night intervening 18th and 19th May, 1974, while Issar Ram PW 2 and his wife Mst. Chaini PW 10 were sleeping in the ''angan'' in front of a ''Sal'' in ground-floor of their house, deceased Durga Ram and the appellant slept over the roof of the ''sal'' of Issar Ram''s house. At about 4 or 4.30 a.m. of May 19, 1974, it was alleged, Mst. Kesar appellant raised a cry from the roof as to who had murdered her husband. It may be mentioned that near and around the house and compound of Issar Ram, there are houses of Nathu Ram PW 1, Megha Ram father of Poonam Chand PW 3, Bhani Ram PW 4 and some other relations of Issar Ram. On hearing the cries of the appellant, Mst. Chaini PW 10 rushed to the roof of the ''sal'' of her house and saw that Durga Ram deceased had injuries on his neck and had been murdered. The neighbourers Poonam Chand PW 3 Chaitan, Bheema, Nathu Ram PW 1 and some others also reached to the house of Issar Ram. Mst. Chaini on seeing that Durga Ram had been murdered became unconscious and she was brought down stairs by Poonam Chand PW 3 and the appellant. Blood which had oozed out of the neck injuries sustained by Durga Ram deceased had spread on the roof where he was lying dead. The neighbourers who had assembled in the house of Issar Ram were of the view that some respectable persons should be called and, therefore, Nathu Ram PW 1 went to call Bhani Ram PW 4. Bhani Ram arrived at the spot and advised that a report should be lodged at the Police Station. There upon Nathu Ram PW 1 along with Chaitan Ram and Purkha Ram went to the Police Station, Naya Sahar, Bikaner, which was at a distance of about 2 furlongs from the house of Issar Ram, and lodged the First Information Report Ex.P 1 at the Police Station at 5.30 a.m. of the same day. Omprakash PW 15 who was Station House Officer of Police Station Nayasahar, Bikaner, after the lodging of the First Information Report came to the place of the occurrence. He prepared the site plan Ex.P. 18 and the memorandum relating thereto Ex.P 45. An inquest report Ex.P. 3 was also prepared. He found that three match-sticks and one cover of match-box were lying near the dead body and the same were seized under the seizure memo Ex.P. 5. The beddings on which the deceased was lying were also seized as they were blood stained. He also seized the ''gudri'' and the blanket which were the beddings on which the appellant had slept during the night. There was also a bottle containing kerosence oil near the dead-body which was also seized. He found that an axe had been pierced into a ''parnala'' on the roof just adjoining the roof on which the dead body of Durga Ram was lying and it had blood stains with signs of two finger-prints. The portion of the axe having the blood stains was outside the ''parnala''. The axe was seized by the S.H.O. under the seizure memo Ex.P. 9. Photographs of the dead body were taken. Sample of the blood which had spread near the dead body and had become dry was also taken. A carpenter was called and a wooden box was got prepared in which the axe seized was placed and sealed. The specimen finger-prints of the appellant were got taken in the presence of the Additional Munsif-cum-Judicial Magistrate, Bikaner, and they were sent along with the box containing the axe to the Finger Print Bureau, Jaipur, for comparison Report Ex.P. 31 was received from the Director Rajasthan Finger Print Bureau. Dr. Surendra Kumar PW 8, on requisition from the police, conducted the post mortem examination of the dead body of Durgaram and found 9 injuries on the neck of the deceased and gave the post mortem report Ex.P. 26. The appellant was arrested on that very date. After completing the investigation, the police filed a charge-sheet against the appellant in the court of the Chief Judicial Magistrate, Bikaner, who by his order dated July 15, 1974 committed the appellant for trial to the court of the Sessions Bikaner for the offence u/s 302 IPC. The Sessions Judge, Bikaner, after trial held the appellant guilty for the offence and sentenced him as aforesaid.

There is no direct evidence of any eye-witness. The conviction of the appellant depends entirely on circumstantial evidence. The only question, therefore, is whether the circumstantial evidence of the record is consistent only with the guilt of the appellant or is consistent with any other rational explanation.

It may be stated at the out-set that the appellant in her examination by the Sessions Judge, Bikaner, has admitted that on the night of the occurrence she and her husband Durga Ram had slept on the roof of the house and that at about 4 a.m. she had raised a cry that some-one had murdered Durga Ram and on hearing the cry, Poonam Chand, Nathu Ram, Chaitan and others had come to the house of Issar Ram. The statement of Dr. Surendra Kumar PW 8 is quite clear that he found 9 external injuries on the person of deceased Durga Ram which were all on the neck. There were four incised wounds on the neck and five abrasions. According to Dr. Surendra Kumar, injury No. 1 mentioned below was sufficient to cause death. Injury No. 1 is as follows:

(1) One incised wound 2" X 1/4" X muscle deep placed over left lateral surface of neck 2" above mid clavicular points and 2" from mid line of neck. The anterior end of the wound directing obliquely downwards medially. On dessection extra visation and clotted blood present in left side of muscles of neck, cutting of the internal juglar vein and partially cutting of carotrine artery on left side present, vague nerve on left side is partially served.

The doctor has also stated that after receiving injury No. 1, the death could be instantaneous. He has also stated that the incised wounds could have been caused by the axe Article 7. All the injuries were ante mortem in nature and according to him, Durga Ram died of shock and haemorrhage caused by the ante-mortem injuries. Dr. Surendra Kumar has compeletely ruled out the possibility of the case being that of suicide. He has deposed that in case of suicide, the cut is in general obliquely from the above down-wards and it is more on the anterior part. There is no reason to disagree with the doctor that in case of suicide generally the injuries are not multiple. Multiplicity of injuries on the neck of Durga Ram indicate that it was a case of homicide and not of suicide.

The learned Additional Sessions Judge, Bikaner in holding the appellant guilty, has relied upon various circumstances which are stated to have been fully established and which are consistent only with the hypothesis of the appellant. The deceased and the appellant were husband and wife and they had slept during the night intervening 18th and 19th May, 1974, on the same roof and there was no other person during the night at the place. Being husband and wife, they slept in privacy and there was no one else on the roof. It provided the appellant an opportunity to do away with her husband. According to the Additional Sessions Judge, it was a difficult proposition that any outsider would have come concealed during the night and the appellant would not have known about the murder by an outsider immediately after the murder when she was sleeping with the deceased and she would have raised the cry only at 4 a.m. when the sun was about to rise after an hour or so. The axe (''kulhari'') Article 7 was the weapon of offence and it admittedly belonged to Issar Ram and the appellant used to cut fire wood by it when ever she was living in the house of Issar Ram. The axe recovered from the ''parnala'' of the roof was blood stained and Parmeshwar Nath PW 9 Finger Print Expert has opined that the finger-print on the blade of the axe was similar to the specimen finger print of the left hand of the appellant taken by Prem Pratapsingh PW 6 Addl. Munsif-cum-Judicial Magistrate, Bikaner, on Ex.P 19. The learned Addl. Sessions Judge accepted the opinion of the Finger Print Expert. The Chemical Examiner in his report Ex.P 47 reported that the axe was stained with human blood. It was also stated by the Additional Sessions Judge that had the assailant been some one else, he could not have used the axe of Issar Ram and then left it at the place of occurrence. The Additional Sessions Judge also noted the circumstance that the bedding of the appellant was found folded up and on the other roof where the axe was found. According to the learned Judge, the report of the Chemical Examiner had found blood marks on the ''gudari'' and the blanket of the appellant also. These blood marks could not have come on these had they been far away from the deceased. The conclusion, therefore, drawn was that the appellant had removed her beddings from the roof on which the deceased was lying after he had been killed. She had folded her own beddings even before raising the cry. Summary-up, the learned Additional Sessions Judge observed in para 14 of the judgment as under:

Thus, from the prosecution evidence we have seen that the deceased met a homicidal death. We was last seen with the accused and both of them were alone for a considerable time and the accused had every opportunity for committing the crime. The identification of the ''kulhari'' as the one belonging to the accused and her finger print impression found on the blade of the ''kulari'' puts another nail in her coffin. The chain of circumstantial evidence against her is complete.

It may here be mentioned that the Additional Sessions Judge on the question of motive held that the prosecution had not been able to establish a motive for the murder. A suggestion had been made that the deceased was not a full grown man and the appellant (wife of the deceased) was elder to the deceased. This suggestion was held by the Additional Sessions Judge as not finding support from the evidence.

Before discussing the circumstance established in the present case, we would like to deal with the nature, character and essential proof required in a criminal case which rests on circumstatial evidence. The locus classicus of the decision of the Supreme Court on the point is one rendered in the case of Hanumant Vs. The State of Madhya Pradesh, . It is said that the five golden priniples laid down in Hanumant''s case (supra) constitute the "panch-sheel" 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;

[2] the fact 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 would be of a conclusive nature or 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 lead 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.

His Lordship Mahajan, J., speaking for the Court in Hanumant''s case (supra), recalled the warning addressed by Baron Alderson to the jury in Reg. v. Hodge 1838 (2) Lewin, 277 where he said:

The mind was apt to take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that is wanting to take for granted some facts consistent with its previous theories and necessary to render them complete.

Mahajan. J, again in Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), referred to the same warning by Baron Alderson in Reg. v. Hodge (supra).

We may refer to the guidance given by Pollock C.B. to the jury in Regina v. Exalla and Ors. 1886 ER 850-853, which dealt with circumstantial evidence in relation to a charge of burglary. Dealing with two of the prisoners Exall and Edwards who were taken into custody together in the morning after the burglary, and that upon one of them, Exall, was found an instrument, with which the burglary might have been committed and which it was said he dropped, designedly, and as if by accident; and if that were so, it would be some evidence to connect him with the burglary. If it was not done designedly it would come to nothing. As it is, it was not much By itself it would be insufficient, but there were other circumstances in the case and specially, the fact that the watch was found upon him before mid-day, on the morning after the burglary. Thus it was that all the circumstances must be considered together. Pollock C.B. observed

It has been said that circumstantial evidence is to be considered as a chain and each piece of evidence has a link in the chain, but that is not so, for then, if any one link broke the chain would fall. It is more like the case of a rope composed of several cords. One stand of the cord might be insufficient to sustain the weight, but three tranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence there may be combination of circumstances, one of which would raise a reasonable conviction, or more than a mere suspicion but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit off. Consider, therefore, all the circumstances clearly proved.

We may next deal with circumstances established by the prosecution in this case. Asuram (PW 5) is the father of Durga Ram deceased. He has deposed that the age of Durga Ram at the time of marriage with the appellant was 7 years and when he was murdered, his age was about 14-1/4 years. He has also stated that Durga Ram was younger in age than the appellant. The photographs Exs. P. 33, P. 34, P. 35 and P. 37 of the dead body of Durga Ram got taken by the police after the murder of the former go to show that beard and moustaches had not grown on the face of Durga Ram. The alleged occurrence took place on the night intervening 18th and 19th May, 1974. The Additional Sessions Judge had examined the appellant on March 25, 1976. The appellant gave her age on March 25, 1976 as 15 years but the Additional Sessions Judge estimated the age of the appellant to be 19 or 20 years. Asu Ram''s statement appears to be correct that the appellant was more in age when the deceased and that she was more healthy. It is also in the evidence of Asu Ram that the appellant had only started coming to the in-laws'' house since 2-1/2 years before the incident. She used to stay only for 15 or 20 days and then used to go back to her parents'' house. It is also his statement that her parents did not use to send her to the in-law''s house. Asu Bam had brought the appellant only 2 or 3 days before the incident from her parents'' house and left her at the house of Issar Ram. Mst. Chaini (PW 10) has also deposed that while Durga Ram used to live with her, the appellant used to live with her parents. She only stayed at the house of Issar Ram when she used to come from her parents'' houses. Durgaram deceased was average built. His organ of generation might be healthy and normal with no deformation, but it appears that he was at least one year younger than the appellant and the appellant was healthy. This is only one aspect of the matter. It is very well established and is not disputed by the appellant that during the night intervening 18th and 19th May 1974, the appellant and her husband deceased Durga Ram had slept on the roof of the ''sal'' of Issar Ram''s house. There is evidence of Issar Ram (PW 2) and Mst. Chaini (PW 10) that the appellant and the deceased had slept on the roof during the night. There was no other person sleeping on the roof of the ''sal'' of Issar Ram except the appellant and the deceased. Both Issar Ram and Mst. Chaini were sleeping in the ''angan'' of their house in front of the ''sal''. Thus the appellant had the opportunity to murder Durga Ram.

It is established beyond any shadow of doubt that ''kulhari''(axe) Article 7 was the weapon of the offence. Kulhari Article 7 undoubtedly belonged to Issar Ram. Issar Ram has stated that ''Kulhari'' Article 7 belonged to him and so also Mst. Chaini (PW 10). Even the appellant in her examination before the Additional Sessions Judge has stated that it was same ''kulhari'' from which she used to cut the fire wood. The ''kulhari'' Article 7 was sent for chemical examination arid the report Ex. P 7 of the Chemical Examiner states that the ''kulhari'' item No. 1 was stained with human blood. It is true that blood group of the stains on the ''kulhari'' could not be determined because the stains were not sufficient for test, but the fact lies that ''kulhari'' Article 7 was found stained with human blood. The ''kulhari'' was found hidden on the roof of Issar Ram''s house by its being pierced into a ''Parnala'' on the roof. The blade side of the ''kulhari'' was towards the roof outside the ''parnala'' and it was recovered and seized by the S.H.O. Om Prakash (PW 15) from that place. The ''kulhari'' was seized under the seizure memo Ex. P 9. In Ex. P 9, it is mentioned by the Station House Officer that the ''kulhari'' was got taken out from the Parnala'' through ''motbirs''. Bhani Ram (PW 4) was one of the ''motbirs'' of Ex. P 9 and he has stated, that on being asked by the police people, he took a piece of a paper and with the paper he caught the blade of the ''kulhari'' and took it out from the `Parnala'' and it was seized by the police. The learned Counsel for the appellant contended that there was contradiction on this point between the statements of the S.H.O. Om Prakash (PW 15) and that of Bhani Ram (PW 4), in as much as, the S.H.O. has stated in his cross examination that he had himself taken out the ''kulhari without using any paper and by catching hold of the wooden ''danda'' portion of the ''kulhari''. It may be stated that in the seizure memo of the ''kulhari'' Ex. P 9 itself also it was mentioned by the S.H.O. that the ''Kulhari'' was got taken out from the ''parnala'' through the ''motbirs'' and, therefore, it cannot be said that the statement of Bhani Ram (PW 4) is false. In any event, ''kulhari'' Article 7 was taken out from the ''parnala'' by taking care that the blood stains on the finger prints may not be affected in taking out the ''kulhari''.

On behalf of the appellant, a suggestion was put forward to Issar Ram (PW 2) that his relation Gulla Ram wanted to give his son Sohan in adoption to Issar Ram and because Issar Ram had kept his daughter''s son Durga Ram with him, Sohan was annoyed and unhappy with him. Issar Ram has categorically stated that he did not want to take any body else in adoption before adopting Durga Ram. He also stated that his relations with his brother were cordial. He also denied the suggestion put forward to him on behalf of the appellant in cross-examination. Mst. Chaini (PW 10) has also stated that Gulla Ram never told her to take his son Sohan (Sonia) in adoption and not to take Durga Ram, Both Issar Ram and Mst. Chaini had denied that they had kept Surja Ram son of Magga Ram with them before keeping Durga Ram deceased. No such suggestion was made on behalf of the appellants to Nathuram (PW 1) and Poonam Chand (PW 3) who were other near relations of Issar Ram. A suggestion was made on behalf of the appellant to Nathu Ram (PW 1) that some strangers could jump into the house of Issar Ram by climbing over the boundary wall of Issar Ram''s house which was 4'' or 5'' high. It is highly improbable to believe that a stranger would come into the house of Issar Ram by climbing over the boundary wall with an intention to murder Durga Ram without any weapon in his hand and will choose to use the ''kulhari'' of Issar Ram for the purpose. According to ordinary human conduct, such a person would bring his own weapon and specially in the night to murder Durga Ram who was living in a different house. There was great danger and possibility of the stranger being caught if he was to undertake the risk of searching in the night a weapon from the house of Issar Ram himself in order to murder Issar Ram''s daughter''s son. The circumstance that Durga Ram was murdered from an axe belonging to Issar Ram and lying in the house of Issar Ram on the roof of the ''sal'', where none else except Durga Ram and the appellant were sleeping, is consistent with the guilt of the accused and it was highly improbale that a stranger jumped into the house of Issar Ram and used Issar Ram''s ''kulhari'' in murdering Durga Ram.

The ''kulhari'' Article 7 was also sent to the Finger Print Expert, Shri Parmeshwar Nath Tarka (PW 9), along with the specimen finger prints of the appellant taken before the Additional Munsif-cum-Judicial Magistrate, Bikaner. Shri Parmeshwar Nath Tarka gave his opinion in Ex. P. 31. He compared two chance prints found on the ''kulhari'' with the specimen finger prints of Mst. Kesar and he found that the chance print ''A'' on the ''kulhari'' was similar to the specimen finger print ''S-1''. He noted in it 10 points of similarity between the chance print marked "A" and specimen mark "S-1". The chance print marked "A" was on the ''kulhari''. With regard to another chance print "B", he was of the view that it is not clear and, therefore, it was no possible to give opinion with regard to that. It was contended by the learned Counsel for the appellant that if the appellant would have murdered Durga Ram, her finger print would have been on the wooden handle of the ''kulhari'' and on its iron blade. It was contended that it was possible that the police people might have got the ''kulhari'' taken out from the ''Parnala'' through the appellant and the appellant took the same out by catching the blade of the ''kulhari'' and her finger prints appeard on the blade portion. Such a suggestion stands denied and belied by the testimony of the S.H.O. Omprakash and also that of ''motbir'' Bhaniram. It cannot be forgotten that the finger print of the appellant could very well come on the blade portion of the ''kulhari at the time when the appellant pierced the ''kulhari'' inside the ''parnala'' by holding its blade portion and that appears to be more probable when it is in the evidence of Bhani Ram PW 4 that he had taken out the ''kulhari'' from imide the ''parnala'' on being asked by the police official with the help of a paper. It is thus a case where the weapon of offence ''kulhari'' Article 7 speaks a lot itself about the assailant. The intrinsic circumstantial evidence furnished by the ''kulhari'' Act. 7 is of great importance in this case. The intrinsic evidence furnished by the ''kulhari'' is that it belonged to Issar Ram, that it was the weapon of the offence as it was stained with human blood and that on its blade there was finger print of the appellant. This intrinsic evidence by itself is sufficient to connect the accused with the crime.

The decision in Mahmood v. State of U.P. 1976 (1) SCC 452 is distinguishable. In that case the High Court had convicted the appellant on the solitary circumstance that the finger prints of the appellant were found on the handle of the ''gandase'' which was found lying near the dead body at the scene of the occurrence. There were some suspicious circumstances in the case which cast a grave doubt on the genuineness of the solitary circumstantial evidence. The complainant had admitted that when he first saw the ''gandasa'' lying near the dead body at the scene of the occurrence, its handle was dirty, but when this weapon was shown to him in court, the wooden part of the handle was clean and the rest dirty. Inference could be drawn from this fact that some body might have cleaned the wooden handle and thereafter got the finger prints of the appellant on it There was complaint from the side of the accused by two petitions addressed to the District Magistrate and Superintendent of Police that the finger prints were forcibly taken by the police on some round object. The specimen finger prints of the accused were not taken before or under the order of a Magistrate. The ''gandasa'' was never sent to Chemical Examiner or Serologist and no explanation for the same was forth coming. In the instant case, the photograph Ex.P 36 of the ''kulhari'' taken on the spot clearly goes to show that its blade was blood stained. The ''kulhari'' was taken out from the ''parnala'' cautiously with the help of a paper. The specimen finger prints of the appellant were taken in the presence of the Additional Munsif-cum-Judicial Magistrate, Bikaner. The ''kulhari'' was sent for chemical examination and the Serologist opined that it was stained with human blood. It was at no stage the statement of the appellant that her finger print on the blade of the ''kulhari'' were got taken after the incident on its blade. The appellant even denied that specimen of her finger prints were taken in the presence of the Additional Munsif-cum-Judicial Magistrate which denial is clearly false in face of the testimony of Shr Pratap Singh, Additional Munsif-cum-Judicial Magistrate, Bikaner PW 6. In the instant case the ''kulhari'' was taken out from the ''parnala'' with all precautions. A wooden case was got prepared from the carpenter. It was sealed and was sent to the Chemical Examiner in a sealed condition and it was received by the Chemical Examiner with seals intact. In Mahmood'' case (supra) it was not found to be established that the ''gandasa'' in that case was the weapon of the offence. In the instant case it is unmistakeably established that ''kulhari'' Article 7 belonging to Issar Ram was the weapon of the offence. In the instant case, the intrinsic circumstantial evidence furnished by ''kulhari'' Article 7 is weighty enough to connect the appellant with the crime apart from the circumstances that the appellant had ample and adequate opportunity to commit the crime and it was highly improbable that any stranger came in during the night unarmed and committed the crime.

It was urged by the learned Counsel for the appellant that a Finger Print Expert has only pointed out 10 points of similarity between the chance print and the specimen finger print while there should be at least 16 points of fine comparison as proof of identity of finger print. In United State of America, 16 points of fine comparison are accepted as proof of identity but in United Kingdom 12 points of comparison are accepted as proof of identity. Taylor on Principles and Practice of Medical Jurisprudence 13th Edition at page 176 has stated that in practice 16 to 20 points of fine comparison are accepted as proof of identity, but, of course, unlimited amount of detail is available in any small area even a small part of a single print. In chance print photograph (Ex.P 29), the print is 40% clear & 60% blurred. The Finger Print Expert has stated that this 40% clear portion of the finger print was sufficient for him to give opinion. The Expert has pointed out the characteristics of ridges as indicated by arrow. In our view, the area for comparison available to the Finger Print Expert was sufficient for comparison and the 0 points of similarly pointed out by him are sufficient in the case as proof of identity.

It was also contended by the learned Counsel for the appellant that the prosecution has not established any motive which would have actuated the appellant to commit murder of her husband. It is true that Issar Ram PW 2 and Chaini PW 10 have deposed in their cross-examination that the appellant and the deceased did not use to quarrel between themselves. It is, however, clear from the evidence of Issar Ram that being his daughter''s son''s wife, the appellant did not use to talk with him or with Mst. Chaini has deposed that the appellant some times used to talk to her. Much could not, therefore, be known to Issar Ram and Mst. Chaini as to what was lingering in the mind of the appellant. The only indication available in the case is that the appellant mostly used to remain at her parents'' house and when she used to come to her husband, she stayed in Issar Ram''s house. There is also evidence of Asu Ram that deceased was younger in age the appellant and her parents were mostly disinclined to e id the appellant her husband. The appellant was about 16 or 17 years of age at the time of the incident while the deceased Durga Ram was at least one years younger to her. Beyond that, no other motive is forthcoming from the side of the prosecution. However, in the face of the above strong circumstantial evidence, the absence of evidence about particular motive would be not enough to disconnect the appellant with the crime.

Evidence has been led in defence to the effect that prior to Durga Ram deceased, Surjan Ram (nephew) of Issar Ram used to live with Issar Ram, but since other relations of Issar Ram objected to it, Surjan Rum left living with Issar Ram. Both Issar Ram and Mst. Chaini have denied this fact in their statement and nothing has been said about the insistence of Gulla Ram upon Issar Ram to taken his son Sohan in adoption by defence witnesses.

Lastly, it was contended by the learned Counsel for the appellant that the clothes which the appellant was wearing on the morning of 19-5-74 were not sent for chemical examination by the police although the same had been seized by the S H.O. Om Prakash PW 15 under the seizure memo Ex. P 14. Om Prakash PW 15 has stated that apparently there were no blood stains on the clothes of the appellant or on her hands. It was contended that the absence of blood stains on the clothes of the appellant go to show that she did not commit murder of Durga Ram. It was urged that after the injury was caused on the neck of the deceased, the blood will flow out like a fountain on all sides and it would go upto 5 to 10 ft. and in case the appellant was the murderer, her clothes would have been stained with human blood. The injuries on the neck of the deceased were on the left side of the neck as is clear from the post mortem report as the photographs of the deady body. It is also clear from the photographs Ex. P. 33 and Ex. P 37 that the blood has spread on left side and back side of the head of the deceased after his murder and not towards right side. It maybe possible that the murder of the deceased was committed by standing on the right side and on that side the blood had not flowed. In the inquest report, it has been noted that the injuries on the neck were on the left side. The blood stains had sprinkled on the northern wall at several places. The right temple was touching the surface of the roof. Non-spreading of blood or its sprinkling on the right side of the dead body is mentioned in the inquest report. It is quite clear that the assailant had inflicted the ''kulhari'' blow by standing on the right side and that is why the clothes of the assailant did not have blood stains.

Following circumstances, therefore, lead us to the conclusion that it was the appellant and the appellant alone who had committed the murder of her husband Durga Ram:

[i] the appellant was elder in age to the deceased and mostly she used to live with her parents and her parents were disinclined to send her to her husband;

[ii] it was the appellant alone who was sleeping with her husband during the night intervening 18th and 19th May, 1974 and no other person was sleeping on the roof and there was ample time and opportunity for the appellant to commit the crime;

[iii] the ''kulhari'' Article 7 was the weapon of offence and it belonged to Issar Ram and was in the house of Issar Ram on the night of the incident;

[iv] there are no cricumstances to show that old persons like Issar Ram and Mst. Chaini who were anxious to keep Durga Ram deceased with them as they had no male issue, would have committed this crime;

[v] the blade of the ''kulhari'' Article 7 was stained with human blood and the blade had the ring finger print of the appellant on it;

[vi] it is highly improbable that a stranger would have come unarmed during the night if he had an intention to commit the murder of Durga Ram and would have searched the ''kulhari'' during night for that purpose; and

[vii] the defence version has been found to be false. Falsity of defence, we are not taking as proof of facts which the prosecution has to establish but we are only using it as an additional cricumstance, because the above noted first six circumstances point unfailingly to the guilt of the appellant.

Resultantly, this appeal has no force in it and it is here by dismissed. The appellant is on bail. The Additional Sessions Judge, Bikaner, will immediately take steps to take the appellant in custody and commit her to jail for undergoing the sentence.