Smt. Panchi and Others vs State of Rajasthan

Khem Chand Sharma, J.—These two appeals-under Section 374(2) of the Criminal Procedure Code are directed against the judgment of conviction and order of sentence dated 30th May, 1998 passed by the learned Additional Sessions Judge, Kotputali by which he has convicted both the appellants u/s 302/34, IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 500/- each, in default of payment of which to undergo rigorous imprisonment for three months. Smt. Panchi appellant has filed the appeal through Shri V. R. Bajwa while Jai Ram appellant has filed the appeal through jail and this Court while admitting the jail appeal vide order dated 24-7-1998 appointed Shri V. P. Bishnoi Amicus Curiae. Since both the appeals arise out of the same judgment and order, they are being disposed of by a common judgment.

Succinctly stated the facts of the case are that P.W. 14 Ratan Lal submitted a written report. Ex. P-18 at Police Station Virat Nagar, District Jaipur in the intervening night of 6/7th March, 1996, on the basis of which FIR No. 30/96 (Ex. P-19) was registered on 7th March, 1996 at 1.30 a.m. In the written report Ex. P-18, the complainant submitted that in the intervening night of 6/7th March, 1996 he was present in his house. The house of Jagdish son of Debu Gurjar was in the Dhani Khatola Jungle. It was mentioned that after hearing hue and cry of the women from the house of Jagdish, the complainant, his uncle Bheema Ram and father and many other persons rushed there. They found the dead body of Jagdish lying on the Chabutra out side the house. There was a Baniyan on the body of the deceased. They noticed injuries by sharp edged weapon on the neck and chin of deceased and the body was profusedly bleeding. Smt. Gyarsi, mother and Smt. Panchi wife of Jagdish were present in the house. It was mentioned that Smt. Panchi and Jai Ram son of Sardara Gurjar had illicit relations with each other for sufficiently long time and as a consequence of illicit relations, there was dispute in between the wife and husband. Gyarsi, mother of Jagdish was loudly speaking that Jairam had murdered her son Jagdish. It was further mentioned that number of persons collected there.

During investigation the police inspected the site and prepared the site-plan Ex. P-1, seized the blood stained mattress and quilt vide Ex. P-2, seized blood stained underwear and Baniyan vide Ex. P-3, and arrested accused appellant Jairam on 7th March, 1996 vide arrest memo Ex. P-10. The accused appellant Smt. Panchi was arrested on 7th March, 1996 vide arrest memo Ex. P-l5. One axe was recovered at the instance of accused Panchi vide memo Ex. P-4. Blood stained clothes of accused Jai Ram were recovered vide memo Ex. P-5. Vide seizure memo Ex. P-9 amputated part of finger of accused Jai Ram was recovered. Controlled soil and blood stained soil from the place of the incident was also seized through Exs. P-12 arid P-13. Blood stained clothes of accused Panchi were seized vide Ex. P-14. One Bamboo lathi was recovered at the instance of accused Jairam and was seized vide Ex. P-16-A.

Dr. Surendra Kumar, PW-20 conducted autopsy and found following injuries on the person of deceased vide post-mortem report Ex. P-25 :

Incised wound 5 cm x 2 cm x 4 cm over neck.

Lacerated wound and skin abrasions over posterio-inferior aspect of scalp.

Incised wound 3 cm x 1 cm x 3/4 cm over left scapular region.

Incised wound 6 cm x 2 cm cutting the muscles and bone under at lower part of left scapular region.

Lacerated wound 10 cm x 8 cm cutting the muscles over posterio lateral aspect of left shoulder.

Incised wound 7 cm x 2 cm x cutting the muscles and skin at left parieto-temporal region.

Contusion and skin abrasions 3 cm x 3 cm. over posterior aspect of right shoulder.

Incised wound 5 cm x 2 cm over mid of scalp cutting full muscles and bone (skull) under the side of wound.

Incised wound 4.5 cm x 3 cm cutting the bone of chin.

Incised wound 5.5 cm x 2.5 cm over right temporal regional cutting the muscle and bone under the side of wound.

Lacerated wound 4 cm x 4 mm x 3 mm over anterior aspect of neck lower part of right side.

Incised wound 5 cm x 2 cm over lateral aspect left shoulder cutting the muscles and bone under the wound site.

Incised wound 3 cm x 1.5 cm x tissue deep over lateral aspect on left shoulder.

Incised wound 4.5 cm. x 2 cm over lateral aspect of upper part of left arm cutting the muscles under the site of wound.

Incised wound 4.5 cm x 2 cm. over lateral aspect of left arm at the junction of middle and upper one third.

Lacerated wound 3 cm x 2 cm over mid of middle finger of left hand cutting the bone of middle Phalynx.

Streak of skin abrasion 3 cm over mid of anterior aspect of the right arm.

Lacerated wound 3 cm x 2 cm over (Rt.) hand in the space between thumb and index finger.

Contusion and skin abrasions 5 cm x 1 1/2 cm over lateral aspect of mid at right arm.

Streak of skin abrasion over lateral aspect of right shoulder.

Lacerated wound 2 1/2 cm x 4 mm x tissue deep over mid of dorsal aspect of left ring finger.

Streak of skin abrasion 8 cm over anterior aspect of chest on left side.

Incised wound 2 1/2 cm x 4 mm x tissue deep over anterior aspect of right knee.

Incised wound 4 cm. x 1 1/4 cm x tissue deep over lateral aspect of right leg at the junction of middle and upper 1/3rd.

Contusion and skin abrasion 2 cm x 1 cm over anterior aspect of right leg at the junction of middle and upper 1/3rd.

Streak of skin abrasions over lateral aspect of left thigh upper end.

There were fractures of skull bones, left scapula, ribs, left humerus mandible and middle phalynx of middle finger of left hand.

As per the opinion of the doctor, the cause of death was shock due to multiple injuries over vital organs. The injuries inflicted were ante mortem in nature.

On completion of investigation, the police submitted charge-sheet against the accused appellants before the concerned Magistrate, who in turn committed the case for trial to the Court of Session. The learned trial Court framed charge against accused appellants for offence u/s 302 / 34, IPC. The accused appellants denied the charges and claimed to be tried.

In order to prove its case, the prosecution examined 20 witnesses and also produced some documents. Statements of the accused appellants u/s 313, Cr.P.C. were recorded. He stated that that he was not present at the place of occurrence and when he visited the place of occurrence after hearing cries, he found Jagdish lying dead and the witnesses did not allow him to go from that place and also gave him beating, as a result thereof, his finger was cut and the amputated part of his finger fell down. Accused appellant Jai Ram further explained that because of previous enmity the witnesses have implicated him in the commission of alleged offence. Another appellant, Mst. Panchi in her explanation u/s 313, Cr.P.C. has completely denied the accusation against her. She came with the case that in the night of the occurrence her mother-in-law Gyarsi took her husband from her house and asked her to sleep after putting lock at the door. According to appellant Panchi, Hari, Ram Kumar, Kesari, Santi and Gyarsi committed murder of her husband as they wanted to grab her land. In defence two witnesses were examined.

The learned trial Court after recording evidence and hearing both the sides, found the prosecution case as alleged. proved and accordingly convicted and sentenced the accused appellants as mentioned above vide judgment and order dated 30th May, 1993. Hence the present appeals.

We have heard the learned counsel for the appellants and the learned Public Prosecutor and have gone through the evidence and material available on record.

Before adverting to the merits of the case, we would first like to deal with the prosecution evidence.

PW-1 Kalyan Sahai has deposed that Jai Ram and Panchi had murdered Jagdish about 7-8 months earlier. The witness could not state the reason behind commission of murder. According to him, he was not aware as to what extent the relations of Dever Bhabi were between Jai Ram and Panchi. He came to know of the incident at 6.00 pm when he returned home from Pratapgarh.

P.W. 2 Nanchu Ram has stated in his examination in chief that he knows Jagdish (deceased) and Panchi is wife of Jagdish. He and Jagdish used to visit the houses of each other. Jai Ram, Panchi and Jagdish had sweet relations. The persons were enjoying holi festival. Jagdish had come on a tractor from Beelwadi. "According to him, scuffle took place between Jagdish and Jai Ram and slaps were exchanged between them. He and other intervened and thereafter both of them left for houses. PW 2 Nanchu further stated that when he was going from ''dhani'', Jai Ram called him and told that he will kill Jagdish. He then asked Jai Ram not to do so and also threatened him. On being asked by this witness, the accused stated Jagdish he keeps relations with ''Malies'' and does not properly behave with him. At about 10 in the night there was uproar and other also went there. He noticed that Jagdish was lying dead at the place where there was uproar. The witness denied to have any knowledge about the illicit relations between Jai Ram and Panchi. The witness stated that Jai Ram and Panchi might have murdered Jagdish. In cross-examination, PW 2 Nanchu stated that whatever he has stated in his examination-in-chief is based on hearsay.

PW 3 Mali Ram has stated that about 10 days prior to Holi some altercation had taken place between Jagdish and Jai Ram, Jagdish had brought ''Bajri'' (small pieces of stones) and Jai Ram had come from his house. There was exchange of abuses between them. Jai Ram told Jagdish to leave the place, else he will beat him. When they started fighting, the persons present there intervened and separated them. The witness stated that he was at his house at the time when Jagdish died. He came to know about the death of Jagdish when mother of Jagdish and Hari S/o Jojya raised an alarm "Jagdish ko maar diya, bhag jao". Thereafter he and other persons of the vicinity rushed to the place of incident and found the dead body of Jagdish lying there. According to him, appellant Panchi was sitting at the stall (thadi) and Jai Ram was not there. The witness stated that Panchi and Jai Ram alone had murdered Jagdish as Jai Ram had illicit relations with Panchi.

In cross-examination, the witness stated that whatever, he has stated in his statement about the illicit relations between Panchi and Jai Ram is based on hearsay. He stated that about. 15-20- persons were present at the place of incident at the time when he reached there Gyarshi and Panchi were also present there.

PW 4 Jhanjhu Ram, uncle of the deceased has stated accused Panchi is the wife of deceased Jagdish. On the day of incident he and his brother Sardara had gone to village Sawalpura for the purposes of arranging marriage of accused Jai Ram, who happens to be the son of his brother Sardara. Some person of the village informed him that Jagdish has been murdered. There after he and Sardara came to the village and found the dead body of Jagdish lying there and Panchi was sitting near the dead body. Police was present at the site. Lastly, this witness stated that that Jai Ram and Panchi have murdered Jagdish. However, this witness also does not know the reason behind commission of offence. He was not present at the site. He was not cross-examined.

PW 5 Hamir Singh is a witness to the site plan, Ex.P1.Ex. P.2 seizure of a mattress (gadda) and quilt stained with blood, Ex.P3 seizure of blood stained ''Chaddi and baniyan'' of deceased Jagdish, Ex. P4 recovery of Kulhadi at the instance of accused Panchi, Ex.P5 seizure of blood stained clothes of accused Jai Ram, Ex. P6 site plan of the place of recovery of Kulhadi, Ex.P7 site plan of the place of recovery of blood stained clothes of accused Jai Ram. Ex. P9 seizure of amputated part of finger of hand, Ex.P, 10 arrest memo of accused Jai Ram and Ex.P12 seizure memo of blood stained soil and controlled soil. He has admitted his thumb impressions on these documents. In cross-examination, this witness has stated that Kulhadi was recovered from the Chappar. He then stated that accused Panchi had brought it from inside (saal).

PW 6 Net Ram is also a witness to the site plan Ex.P1, inquest: report of the dead body, Ex.P11, seizure memo of blood stained soil. Ex. P12, Seizure memo Ex.P3 in respect of chaddi and baniyan of deceased. He is also a witnes to the seizure memo Ex. P9 of finger of accused Jai Ram. Ex.P6 site memo of the place of recovery of axe and Ex.P10 arrest memo of accused Jai Ram. The witness has admitted his signatures on these documents. Similarly, PW 7 Hanuman is also a witness to the seizure/ recovery memos Ex.P4, Ex.P5, Ex.P7, Ex.P8, Ex. P13, Ex.P14, Ex.P15 and Ex.P16 and he has admitted his signature from A to B on these documents.

PW 8 Guman Singh has stated that at about 10-11 pm. in the night of incident, on hearing cries, he along with Rawat Singh and Bhawani Singh rushed to the place of incident. The witness stated that all the three reached the house of Jagdish and found Jagdish lying dead in front of his house. Accused Panchi was present there and she had a Kulhadi in her hand. He then stated that Panchi alone was present at the site, having Kulhadi in her hand and Jai Ram had escaped from the scene.

PW 9 Virendra Kumar Sharma is a formal witness. He had taken the photographs and has certified the photographs Ex. P17/1 to P17/5 as also the negatives Ex. P17/1 to P17/5.

PW 10 Sayar Singh had also rushed to the place of incident on hearing hue and cry. He found Jagdish lying dead at his house and Panchi was standing near the dead body. Jai Ram had escaped from the site. Mst. Keshari was crying that Jai Ram and Panchi have murdered her son. In cross-examination, this witness stated that he did not see kulhadi at the spot, Kulhadi was lying at the Chappar and the police had recovered the same in the night itself. Witness Sayar Singh admitted that Gyarsi mother of deceased Jagdish had gone to ''Nata'' to Kalyan brother of Jhanjhu.

PW 11 Mst. Keshari has stated in her examination-in-chief that her house was situated at a distance of 2-3 fields from the house of Jagdish. At about 12 in the night, while they were sleeping, they rushed to the house of Jagdish on hearing his cries. Gyarsi, mother of deceased Jagdish started first and she and her children followed her. They reached the house of Jagdish. On seeing them, accused Jai Ram ran away from the place of incident, while accused Panchi was present there and was inflicting blows on Jagdish. The witness stated that she could see hardly 2-3 blows and thereafter became insane (Phir main to andhi ho gai thi). In the later part of her statement, the witness stated that Jai Ram and Panchi had cordial relations. The exact word are : JAI RAM AUR PANCHI UTHATE BETHATE THE AUR AAPAS MEIN HANSI MAJAK KARTE THE AUR DONO MEIN KUCH NAHI DEKHA.

In cross-examination, the witness stated that first of all the family members had reached the place of incident and the persons of the locality had collected there after their arrival. On being confronted with her statement Ex.D2, she stated that she had stated before the police about infliction of Kulhadi blows by accused Panchi. She had nourised Jagdish after the death of his parents.

PW 12 Mst. Dholi daughter of PW 11 Mst. Keshri who had accompanied her mother to the place of incident has supported the statement of her mother Mst. Keshari. In cross-examination, Mst. Doli stated that she had disclosed to the police about infliction of kulhari blows on the person of Jagdish by Panchi, but she does not know as to why the police has not recorded this part of her statement in Ex. D3.

PW 13 Ram Kumar who had accompanied her mother PW 11 Mst. Keshari to the place of incident on hearing the cries of Jagdish has also supported the statements of her mother and sister namely PW 11 Keshari and PW 12 Dholi, respectively. The witness stated that Jagdish and Panchi had illicit reations. Jagdish was objecting to it and used to tell Jai Ram not to visit his house. In cross-examination, the witness has stated that relation between Jai Ram and Panchi was that of Devar-Bhabhi, Jagdish had informed his mother about the illicit relations between Jai Ram and Panchi and he had also heard it.

PW 14 Ratan Lal has deposed that in the night of incident he heard the noise of woman from Khatolawali Dhani and hearing the noise, he, his father and the persons of the village went there. They reached the house of Jagdish and saw the dead body of Jagdish lying there and his mother Gyarsi and wife Panchi were sitting there. Gyarsi was telling that accused Jagdish has ran away after committing murder of her son. Gyarsi also informed that Jai Ram was there for 2-3 days and was telling that he will kill Jagdish. Gyarsi was further telling that Jai Ram and Panchi had illicit relations. In cross-examination, the witness denied to have personal knowledge about the illicit relations. He used to see Jai Ram and Panchi together when he was visiting the well and Jagdish used to ask Jai Ram not to visit his house.

PW 15 Smt. Gyarsi has deposed that Jagdish was her son and he was married to Panchi about 3-4 years prior to his death. Jagdish was residing separately along with his wife Panchi. She was residing with her Devar (now her husband). She stated that Jagdish used to tell his wife that he will not allow Jai Ram to come to his house, while Panchi was telling that he will come. On hearing cries, when she went to the house of Jagdish, she saw Jai Ram and Panchi inflicting kulhadi blows on the person of her son Jagdish, Jai Ram left the place with his kulhadi and Panchi remained there. In cross-examination, the witness has deposed that Panchi was inflicting kulhadi blows on Jagdish at the time when she reached the place of incident. She stated that it is wrong to say that Jagdish was not inflicting kulhadi blows.

PW 16 Murlidhar has admitted to have lodged the report Ex.P18 and has admitted his signatures on the report from C to D. PW 17 Babu Lal, Constable is a formal witness. He had collected 10 packets for being deposited in the Forensic Science Laboratory. He deposited the same and obtained receipt Ex.P.10.

PW 18 Mal Singh, Station House Officer who carried out the investigation has certified the proceedings and the investigation done by him.

PW 20 Dr. Surendra Kumar was, at the relevant time, posted as Medical Officer in the Government Hospital, Virat Nagar. On 7-3-1996 at 8.30 a.m. he conducted autopsy on the dead body of deceased Jagdish and found as many as 26 injuries as mentioned hereinabove. Dr. Surendra Kumar in his statement has stated that injuries Nos. 6, 8 and 10 on the head of deceased which resulted into fracture of bone, were sufficient in the ordinary course of nature to cause death.

On a careful scrutiny of prosecution evidence enumerated above, it appears to us that this ill episode was an outcome of extra-marital relations between the unfaithful wife of deceased Jagdish and her paramour Jai Ram, who is none else but the unmarried cousin brother of deceased Jagdish and betrayal of trust by wife against her husband put an end to the life of an innocent young husband. The wife herself while in association with her paramour liquidated her husband.

From the prosecution evidence available on record it becomes crystal clear that Deva, Kalyan, Sardara and Jhanju Ram are the real brothers and Gyarsi was married to Deva. After the death of Deva, Gyarsi got herself married to Kalyan, brother of Deva. Deceased Jagdish was the son of Deva and Gyarsi. Appellant Jai Ram is the son of Sardara. Thus, deceased Jagdish and accused Jai Ram are cousin and Panchi W/o Jagdish is Bhabi of Jai Ram.

The prosecution witnesses Nos. 11, 12, 13 and 15, namely , Keshri W/o Jhanju Ram (brother of Sardara), Dholi D/o Jhanju Ram, Ram Kumar S/o Jhanju Ram and Gyarsi, mother of deceased Jagdish and W/o Kalyan, respectively have introduced themselves to be the witnesses of incident and have asserted that on hearing hue and cry, they reached at the place of incident and found appellant Panchi inflicting injuries with an axe to Jagdish. However, this part of their statements did not find place in their statements (Exs. D2, D3 and D5) recorded by the police u/s 161, Cr.P.C. Out of these four alleged eye witnesses. PW 15 Mst. Gyarsi ultimately, in her cross-examination, has admitted that she did not see Jai Ram and Panchi inflicting injuries on the person of deceased and that she reached the place of incident after Jagdish had died. It also transpires from the evidence of PW 11 Keshari, PW 12 Dholi and PW 13 Ram Kumar that they along with PW 15 Gyarsi together reached at the place of incident. PW 18 Mal Singh, who carried out investigation has categorically deposed that none of the above four witnesses saw that the accused persons belabouring the deceased.

Thus, it appears that prosecution witnesses Keshari, Dholi, Ram Kumar and Gyarsi are not the eye witnesses of the incident and they reached at the spot just after the incident had taken place and all of them found Jagdish lying dead. Likewise, PW 2 Nanchu Ram, PW 3 Mali Ram, PW 4 Jhanju Ram, PW 8 Guman Singh, PW 10 Sayar Singh and PW 14 Ratan Lal also reached at the place of incident and saw Jagdish lying dead at his house. Although, PW 8 Guman Singh has deposed that he saw appellant Panchi armed with an axe at the place of incident, but this part of his statement did not find place in his police statement, Ex. D1 recorded u/s 161, Cr.P.C. In this view of the matter, it can safely be concluded that there is no witness to the incident and the prosecution case solely rests on circumstantial evidence.

Having gone through the judgment under appeals and the evidence on record, we find the following circumstances, which weighed with the learned trial Court in arriving at a conclusion of guilt against the appellants;

(i) Motive : extra-marital relations of Panchi with appellant Jai Ram, to which the deceased objected;

(ii) Seizure of amputated finger of Jai Ram from the place of incident;

(iii) Injuries found on the person of Jai Ram;

(iv) Presence of Jai Ram at the place and time of incident;

(v) Recovery of blood stained cloths of Jai Ram and Panchi;

(vi) Recovery of weapons at the information and at the instance of accused appellants and;

(vii) False defence taken by the accused appellants.

It is well settled proposition of law that when a case rests solely on circumstantial evidence, such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and (3) the circumstances-, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In the above background, we have now to examine whether the prosecution has been able to prove the circumstances relied on and if so, whether the incriminating circumstances are of such a character that the same are wholly inconsistent with the innocence of the accused appellants and are consistent only with their guilt and lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence. Accordingly, we proceed to deal with the circumstances enumerated hereinabove.

(i) Motive :

PW 1 Kalyan Sahai, husband of Smt. Gyarsi (mother of deceased Jagdish) has deposed that he is ignorant about the relations between Jai Ram and Panchi, appellants PW 2 Nanchu Ram, neighbour of Jagdish has also deposed that he is ignorant of there being illicit relations between appellants Panchi and Jai Ram. PW. 3 Moti Ram in his examination-in-chief has deposed that Panchi and Jai Ram had illicit relations. However, in cross-examination, he deposed that he had no personal knowledge and that he had heard about their illicit relations from others. PW 4 Jhanju Ram has not stated a single word regarding illicit relations between Panchi and Jai Ram. PW 11 Mst. Kesari has deposed that Jai Ram and Panchi used to sit together and laughing and joking with each others and that she-found nothing beyond it between them. The exact words vised are : Jai Ram and Panchi Uthate Bethate the aur aapas mein hansi majak karte the, dono mei aur kuch nahin dekha. PW 13 Ram Kumar has deposed that Panchi and Jai Ram had illicit relations for last 5-6 months of the incident and Jagdish objected to it and restrained Jai Ram from visiting his house. However, in cross-examination, this witness explained that Jagdish disclosed the fact of illicit relations between Jai Ram and Panchi to his mother in his presence. Jagdish told her mother that Jai Ram Hansi Majak karta hei. PW 14 Ratan Lal has deposed that he had no personal knowledge of illicit relations between Panchi and Jai Ram. However, he explained that Jagdish asked his wife Panchi not to allow Jai Ram in the house and he heard their conversation while he was at his well. PW 15 Gyarsi has deposed that Jagdish told his wife Panchi that he would not allow Jai Ram to enter in his house, to which Panchi objected. She has further deposed that appellant Panchi wished to be the wife" of Jai Ram after the death of her husband Jagdish. It appears that this part of her statement was not challenged by the accused appellants as neither any question was put nor any suggestion was made to her in cross-examination and thus her statement remained unshaken.

Thus, from the evidence of Mst. Gyarsi, PW 15 and the evidence of other witnesses referred to above it stands proved that Jai Ram and Panchi had some relations, may be only to the extent of laughing and Joking (Hansi Majak), and deceased Jagdish objected to it and on the contrary, his wife appellant Panchi declined to abide by the wishes of her husband. Evidently, the prosecution could not prove the fact of illicit relations between Panchi and Jai Ram to the hilt, but from the statement of prosecution witnesses it is proved that there were some relations between Panchi and Jai Ram, may be to the extent of laughing and joking, which were intolerable to the husband and therefore, he warned his wife not to permit Jai Ram to visit his house and that wife Panchi declined to obey the command of her husband. It is often noticed that it is generally not possible for the proscution to prove precisely the motive behind commission of murder. However, in the case at hand, the prosecution has been able to establish possible mental element of the accused appellants, which impelled them to liquidate Jagdish.

(ii) Seizure of piece of ring finger of appellant Jai Ram from the place of incident :

PW 18 Mal Singh, SHO, who was the investigating officer of the case has deposed that he seized cut finger piece of human hand from the place of incident on 7-3-1996 vide Ex.P.9 in the presence of Net Ram and Hameer Singh. Hameer Singh and Net Ram have also certified the above fact. Accused Jai Ram. in his statement u/s 313, Cr.P.C. has admitted that his finger was cut and fell down at the spot. However, appellant Jai Ram explained that some out of the persons present at the spot wielded axe on his head and in the course of saving his head from being injured, his finger was cut and fell down at the place of incident. In our view, the explanation offered by appellant Jai Ram appears to be improbable, for the reasons, firstly that Jai Ram could not disclose the name of the person who wielded axe on him, though the persons present at the place and time of incident were all known to him as they being residents of the same village; secondly it cannot be expected that the persons who, on hearing hue and cry, came to the place of incident, would be armed with weapons and lastly, no suggestion was made to any of the prosecution witnesses regarding above explanation. For these reasons, we are not prepared to accept the explanation put forward by appellant Jai Ram and it appears to be an afterthought.

Learned counsel appearing for the accused appellants have challenged the finding of the trial Court by which it was concluded that possibly Panchi inflicted axe blows on deceased, while Jai Ram caught hold the deceased and per chance the axe blow hit the finger of Jai Ram and as a result of such blow the part of ring finger of Jai Ram was cut off and fell on the ground. According to the learned counsel, the above finding of the learned trial Court is based on conjectures and surmises and the inference drawn by the Investigating Officer during investigation.

We have considered the above argument. From a perusal of para 8 of the impugned judgment, we find substance in the argument of the learned counsel. The trial Court has relied upon the inference drawn during investigation by PW 18 Mal Singh SHO, to arrive at the above conclusion. In our considered view the trial Court''s assumption to arrive at the above conclusion is farfetched and without any cogent evidence.

However, on appreciation of evidence it is proved that the piece of cut finger of Jai Ram was found at the place of incident and Jai Ram himself has admitted this fact, which conclusively proves his presence at the time and place of incident and his involvement in the crime.

(iii) Injuries on the person of appellant Jai Ram.

To prove this circumstance, the prosecution has examined PW 20 Dr. Surendra Kumar who had examined Jai Ram for his injuries. Dr. Surender Kumar noticed as many as 8 injuries on his body including a wound over right ring finger leading to complete amputation of finger at the level of junction at proxymal and middle phalynx at right finger. Dr. Surendra Kumar also opined that piece of finger seized by the police is a part of human finger and it seems to be amputated part of right ring finger of injured Jai Ram. Appellant Jai Ram in his statement u/s 313, Cr.P.C. has tried to explain his injuries by stating that the persons present on the spot gave him beating. We have already observed and concluded above that explanation put forward by appellant Jai Ram is an after-thought and cannot be accepted as true for the reasons mentioned hereinabove.

Learned counsel for the appellant Jai Ram has contended that presumably appellant Panchi and Jai Ram were having illicit relations and they were in the house at the time of incident and Jagdish came there and having seen both of them together attacked Jai Ram and inflicted injuries on his body. According to the learned counsel, appellant Jai Ram was an invitee and not a tresspasser and, therefore, he had a right of private defence of person against deceased Jagdish.

We have considered the above argument and in our considered view the same is devoid of any merit. It is no gainsaying that burden of proving that the act of the accused was protected as one done in exercise of right of private defence lies on the accused. However, to substantiate the plea, the accused is not required to adduce any positive evidence if the same is highly probabilised by the prosecution evidence itself or by other material brought on record. In the case at hand, neither the accused adduced any evidence nor the plea is substantiated by the prosecution evidence or other material on record. On the contrary, accused appellant Jai Ram in his statement u/s 313, Cr.P.C. has stated that the persons present on the spot inflicted injuries on his person and, on the contrary, adduced evidence in support of his plea of alibi. A vague plea of right of private defence based on hypothesis, which was not introduced in cross-examination to any of the prosecution witnesses and not find place in the statement of accused recorded u/s 313, Cr.P.C. rather accused Jai Ram gave false explanation of his injuries and raised a plea of alibi by adducing evidence and the extent of injuries inflicted on victim, belies the plea of self defence.

(iv) Presence of Jai Ram at the place of incident :

PW 18 Guman Singh, PW 10 Sayar Singh, PW 11 Keshri, PW 12 Dholi, PW 13 Ram Kumar and PW 15 Gyarsi have categorically stated that when they reached at the place of incident, they found appellant Panchi present at the place of incident and Jai Ram ran away from there. Jai Ram himself has admitted his presence at the place of incident, though in different context. According to him, he along with Nemi Chand, Ruda and Kishan reached at the place of incident on hearing hue and cry, but none of them was examined as witnesses in defence so as to substantiate his defence. To our dismay, we find that appellant Jai Ram also put forward plea of alibi and examined DW 1 Bhanwar Lal, his real grand maternal father (Nana), Bhanwar Lal has deposed that he along with his sons Ruda, Kishan, Shanker and Jai Ram proceeded to attend the fare of Gangadasji at Triveni at about 7-8 p.m. and returned back to his Dhani. After meals Jai Ram, Kishan and Shanker left his Dhani at about 1-2- or 2.30 am. He has clarified that village of Jai Ram is at a distance of 6 ''Kos'' from his Dhani and on foot 2-3 hours may be taken to cover such a long distance. Meaning thereby that Jai Ram would have reached his house at about 4 or 5 am. The defence witness Bhanwar Lal in his cross-examination has changed the story by narrating that they went to the fare separately, but they met in the fare. In cross-examination of Gyarsi, a suggestion was put to her that on the day of incident Jai Ram went to the fare along with Shanker, Kishan, Ruda and Nemi Chand and Jai Ram returned back to his house at 2.00 A. M. along with Kishan and Shanker after having their meals at Dhani of Bhanwar Lal went to the fare along with the Jai Ram. However, witness Gyarsi denied the above suggestion and firmly stated that Jai Ram did not go to the fare on that day. The plea of alibi otherwise is also inconsistent with the statement of Jai Ram himself recorded u/s 313, Cr.P.C. The incident occurred at about 12 in the intervening night of 6-7th March, 1996 and Jai Ram admitted that he reached at the place of incident on hearing hue and cry. Therefore, there is no question of Jai Ram being else where at the time of incident. Thus, in our considered view the plea of alibi has been cooked up as is evident from the discussions made hereinabove.

(v) Seizure of blood stained cloths of the appellants :

PW 18 Mal Singh SHO of the concerned police station seized the blood stained cloths of appellants Panchi and Jai Ram vide seizure memos Exs.P. 14 and 15, respectively. Appellant Jai Ram furnished information Ex. P.22 u/s 27 of the Evidence Act and the Investigating Officer Mal Singh recovered the cloths on his information and at his instance.

Learned counsel for the appellants have contended that mere recovery or seizure of cloths would not be sufficient until it is proved by cogent evidence that cloths were found stained with blood and that too of the blood group of deceased. To prove this important fact, the prosecution has not been able to produce Serological report.

We have given our thoughtful consideration to the above submission. It is not in dispute that Serological report has not been submitted for the purpose of proving the fact that cloths were stained with human blood. However, appellant Panchi in her statement u/s 313, Cr.P.C. has admitted that her cloths were stained with blood of her husband and the police seized those cloths. Appellant Panchi has explained that she laid on the body of her husband and as a result thereof, her cloths got stained with blood. The explanation put forward by Panchi appears to be improbable as there was no occasion to lay down her body of the body of her husband. One may felt it necessary only to save a person from attack by others. Secondly, all the prosecution witnesses who reached at the spot have categorically and in unequivocal terms have stated that when they reached at the spot, they found Panchi standing at the place of incident. The plea as to how her cloths stained with blood has not been introduced in the cross-examination of the prosecution witnesses. Therefore, the explanation offered in her statement u/s 313, Cr.P.C. appears to be an afterthought and cannot, therefore, be accepted as true. Panchi was present at the residence and her cloths were found stained with blood of her husband is a strong incriminating circumstance against her.

As regards recovery of blood stained cloths of appellant Jai Ram, it appears that the prosecution could not prove that the cloths recovered at the instance and on the information of Jai Ram appellant were stained with Human blood and, therefore, this circumstance cannot be taken to be connecting evidence against Jai Ram and thus, in our view the trial Court has wrongly relied this circumstance against appellant Jai Ram.

(vi) Recovery of weapons allegedly used to commit murder of Jagdish from the possession of accused appellants at their information furnished u/s 27 of the Evidence Act.

On the information Ex.P. 20 furnished by appellant Jai Ram, one lathi was recovered from the possession of Jai Ram vide recovery memo Ex.P. 16. Similarly, on the information Ex.P.21 furnished by appellant Panchi, an axe was recovered from the possession of Panchi vide recovery memo Ex.P.4. Mal Singh, Hunuman and Hameer Singh have been examined to support the facts of recovery, PW 10 Sayar Singh in his cross-examination has deposed that he saw axe lying on Chapper and the police took it in its possession in the same night. PW 15 Gyarsi has also deposed that she handed over the axe to police after removing it from the chapper. Therefore, recovery of axe on the information of Panchi appears to be doubtful and suspicious. That apart, in the absence of serological report, it cannot be concluded that axe and lathi were stained with human blood. Therefore, this circumstance cannot be held to be connected with the accused appellants in the commission of crime and thus the trial Court has wrongly relied this circumstance in arriving at a conclusion of guilt.

Now remains the last circumstance i.e. the defence taken by the appellants.

Appellant Panchi in her statement u/s 313, Cr.P.C. has stated that Hari, Ram Kumar, Moosa, Keshari, Bhoora, Santi and Gyarsi have murdered her husband and she saw them fleeing from the scene. Keshari and Gyarsi have been examined as prosecuting witnesses but this plea was not introduced in their cross-examination. It is also not on record that Panchi lodged any report against them for the murder of her husband. She also gave false explanation as to how her cloths were stained with blood of her husband. In this view of the matter, the plea taken in defence is an afterthought and has no legs to stand. Similarly, appellant Jai Ram has also put forward a false plea of alibi and false explanation of his injuries including the finger being cut by others. The falsity of defence plea and false explanation offered by the accused appellants can be used as an additional link in the chain of circumstances. We are fortified in our view by the law propounded in Swapan Patra v. State of West Bengal, (1999) 9 SCC 242 , State of Maharashtra v. Suresh (2000) 1 SCC 471, Kuldeep Singh and Others Vs. State of Rajasthan, , Joseph Poulo Vs. State of Kerala, , Vasa Chandrasekhar Rao Vs. Ponna Satyanarayana and Another, , Geetha Vs. State of Karnataka, and Birbal vs. State of M.P., (2000) 10 SCC 212 . The ratio of these judgments is that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain.

The case at hand hings solely on circumstances evidence and therefore the false explanation offered by the accused appellants assumes importance and it would supply a missing link in the chain of circumstances.

From the evidence of Dr. Surendra Kumar who conducted autopsy it is proved that deceased had suffered number of incised wounds (in all 13 in number) and 13 injuries caused by blunt weapon on various parts of body and the deceased had died of the injuries to vital organs suffered by him. Therefore, it is established that deceased met homicidal death. Accused appellants Panchi and Jai Ram both were found present at the place of incident when the incident occurred. The cloths of Panchi were found to be stained with blood of her husband. The piece of hand finger of Jai Ram was found at the place of incident and he sustained injuries on his body. Both of them offered false explanation. Appellant Jai Ram also raised a false plea of alibi. Therefore the false explanation and falsity of defence offered by the accused appellants render that circumstance capable of inculpating them.

Thus, the incriminating circumstances enumerated above unmistakably and inevitably lead only to the guilt of the accused appellants we have, therefore, no hesitation to hold that the circumstances established in the case complete the chain of circumstances to prove the charge of murder against both the appellants. We further hold that the prosecution has proved reliable and formidable circumstances forming into a complete chain and pointing unerringly to the irresistible conclusion that deceased Jagdish was murdered by none other than appellants Panchi, his wife and Jai Ram, her paramour.

For the reasons stated above, we dismiss both the appeals of the appellants. The conviction of the appellants u/s 302/34, IPC and the sentences awarded thereunder are maintained and the judgment of the trial Court imposed in these appeals is upheld.