Smt.chanchal @APPELLANT@Hash State of Rajasthan & Ors.

Manoj Kumar Garg, J

The instant criminal jail appeal has been filed by the appellant Smt. Chanchal from Central Jail, Jodhpur against the judgment dated 21.12.2006 passed

by the learned Addl. Sessions Judge (Fast Track), Jalore in Sessions Case No. 50/2006 whereby the accused appellant was convicted for the

offence under Section 302 IPCÂ and sentenced to life imprisonment alongwith fine of Rs.1000/-, in default of payment of fine to further undergo one

year rigorous imprisonment.Â

Brief facts of the case are that on 4.5.2006 a written report was filed by Sakaram (PW-1), brother of deceased Karna Ram, stating therein that they

are four brothers. Selaji being eldest of them, then Balwanta Ji, then Karna Ji, and youngest of them the informant himself. Balwantaji's son Kaluram

marriage was scheduled for 6th of May, so they had bought bridal outfit. Karna Ram's children were at Balwantaji's house and Karna Ji and his wife

Chanchal stayed at home. Around 10:30-11:00 PM informant left for Karna Ram's house for dropping off the children, there they found the outer door

closed. Children went inside and screamed, on this informant rushed inside and saw his brother Karna Ram lying on cot in pool of blood. On being

asked by the informant his brother Karna Ram replied that your sister in law (bhabhi) Chanchal had inflicted an axe blow on his head. Informant

searched for sister in law but she was not there. Listening to scream of informant and children, neighbour Bhikaram came there and made

arrangement for a Jeep and around 1 AM Karna Ram was taken to Hospital at Jalore where from he was referred to Jodhpur. On way to Jodhpur at

2 AM, near Bhadrajun, Karna Ram succumbed to the injuries. At 4 AM they returned to hospital at Jalore, on this account delay occasioned in

presenting the report.

Informant further stated that deceased Karna Ram was having five children. 15 years had passed since his marriage. Feud was ongoing between

Karna Ram and his wife for 2 years. Karna Ram was killed by his wife with Axe. On screaming by the informant, Desaram, Goparam and

neighbours came there.

Upon aforesaid complaint submitted by the complainant PW/1 Saka Ram, police registered a case and investigation commenced. The police arrested

the present appellant and after completion of investigation, challan was filed against the accused appellant before the court of Judicial Magistrate, First

Class, Jalore under Section 302 IPC from where the case was committed to the court of Addl. Sessions Judge (FT), Jalore.

The learned trial court after framing charge under Section 302 IPC proceeded to record the prosecution evidence. In support of prosecution

case, 16 witnesses were examined in all and various documents were exhibited. After recording evidence of prosecution, the statement of the

accused appellant were recorded under Section 313 Cr.P.C. however, no witness was examined on defence side.Â

Upon conclusion of trial, the learned trial court convicted and sentenced the accused appellant Chanchal under Section 302 IPC vide judgment

dated 21.12.2006.Â

The learned Amicus Curiae Shri Bhagat Dhadhich, while challenging the finding of the learned trial court vehemently submits that in this case there

are no eye witnesses and prosecution case is based upon circumstantial evidence which is not proved beyond reasonable doubt. All the witnesses

are interested witnesses, therefore, they concocted the story so as to implicate the accused appellant with the crime. It is argued that chain of the

circumstances is not complete and the alleged dying declaration is also not believable. The presence of the appellant in the house at the time of

sustaining injury by the deceased is not at all proved. She was arrested on the next day from her parent’s house. There is no evidence of

motive on record for which it can be said that appellant was having an intention or motive to kill the deceased Karna Ram.

The submission of the learned counsel for the appellant is that learned trial court has relied upon the statement of PW-1 Saka Ram, who is author

of the FIR and brother of the deceased Karna. Upon perusal of his statement it is revealed that the statement of this witness is far from the

truth.  It is also argued that the recovery of axe at the instance of the appellant is also concocted one.  The learned Amicus Curiae submits

that the circumstances disprove the prosecution case, therefore, the learned trial court committed grave error while believing the testimony of the

witnesses so as to convict the accused appellant for the offence under Section 302 IPC. Â

Per contra, learned Public Prosecutor Mr. Vishnu Kachhwaha vehemently argued that no error has been committed by the learned trial court in

convicting the accused appellant for offence under Section 302 IPC because the chain of circumstances is very much complete. The weapon

‘Kulhari’ was recovered at the instance of the accused appellant upon which human blood was found and as per the FSL report, the blood

group matched with that of deceased. Therefore, it is a case in which the prosecution has led trustworthy circumstantial evidence upon which the

learned trial court has rightly convicted the accused appellant for offence of murder. Learned Public Prosecutor further argued that there was

motive behind murder of the deceased Karna Ram because the relationship between the appellant and deceased was very strained. The brother and

children of the deceased were also examined who corroborated the prosecution story. Thus, it is argued that no interference is called for in theÂ

finding given by the learned trial court to convict the accused appellant under Section 302 IPC.

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and considered the grounds taken by the rival

parties. It is evident from the record that there is no eye witness of the incident and the learned trial court has relied upon the testimony of

witnesses including children of deceased so also the oral dying declaration.

It is well settled that the prosecution has to establish each circumstance by independent evidence and the circumstances so established should form a

complete chain without giving room to any other hypothesis and should be consistent with his guilt and inconsistent with his innocence.

The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has enumerated the

following golden principles in a case based on circumstantial evidence, which reads as under :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusivenature and tendency.

(4) they should exclude every possible hypothesisexcept the one to be proved, and

(5) there must be a chain of evidence so complete asnot to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.

PW/1 Saka Ram, who is the complainant and brother of deceased has categorically stated that when they entered the house they saw his brother lying

on a cot in pool of blood and upon asking, deceased told that appellant Chanchal inflicted injuries to him. Thereafter, the injured was taken to Jalore

hospital from where he was referred to Jodhpur but on the way, he expired.

PW/2 Roop Singh is motbir of certain documents as well as recovery of axe at the instance of the appellant. PW/3 Jalal Khan is an independent

witness who was a neighbourer and he has stated that he saw appellant running out from the house and upon asking, she did not say anything. Later

on, he came to know that appellant had killed her husband.

PW/4 Balwanta Ram is also a brother of deceased and he has mentioned that his son’s marriage was going to be held so children of the deceased

Karna Ram and his other brothers were present. It is stated that upon hearing the shouts of Saka Ram and children, he reached the spot and saw that

his brother Karna Ram had received injuries and blood was oozing out. Upon asking his brother Karna Ram, he told that injuries were caused by

Chanchal.

PW/5 Bharat is the son of deceased and appellant who stated that after his operation due to some injury, his father and mother started quarrelling.

They went to elder father’s house for attending marriage of his cousin brother. When they entered the house alongwith his uncle, Balwanta

they saw that his father had received injuries and blood was coming out. Later on he came to know that his mother inflicted injuries to father.

Likewise PW/6 Khargi who is daughter of present appellant and the deceased, aged about 15 years, has clearly stated that they all went to their

uncle’s house and upon hearing their shouts, when they entered the house she saw her father in an injured condition. She came to know that her

mother inflicted injuries to her father.

PW/7 Desha Ram has stated that the deceased Karna Ram was his uncle. When the children of the deceased and Saka Ram went inside the house,

he heard their shouts. Upon getting inside, he saw that Karna Ram was lying in a pool of blood. They took Karna Ram to Jalore hospital from where

he was referred to Jodhpur but upon reaching Bhadrajun, Karna Ram expired. On the way, Karna Ram told him that Chhanchal had inflicted

injuries to him.

PW/9 Dr. Ramesh Chandra Chouhan is the doctor who examined the deceased and found following injuries :-

“1. Incised wound with bleeding 1 ½ X ½â€​ Bone deep in right eye by sharp weapon.

Incised wound with bleeding 2 ½ X 1â€​ Bone deep in between both eyebrows by sharp weapon.

Incised wound with bleeding 3 X 1 ½â€​ Bone deep in mid part of forehead by sharp weapon.

Abrasion of 1 X 1â€​ on left part of forehead by blunt weapon.

Swelling on nose by blunt weapon.â€​

The doctor has stated that he referred the injured Karna Ram to Jodhpur. Later on he conducted the post postmortem of the deceased Karna Ram

and as per his opinion the cause of death was shock due to head injury.

Upon perusal of the aforesaid statement of the witnesses, it is clear that the relationship between the appellant and the deceased were strained and

none other but the appellant inflicted injuries to Karna Ram and later on he expired.

The recovery of weapon 'kulhadi' at the instance of appellant Chanchal vide Ex.P/29 has been proved by the Investigating officer PW/16 Laxman

Singh. The blood stained ‘Odhna’ worn by the appellant at the time of incident was also recovered vide Ex.P/13. Both the articles i.e. 'kulhadi'

with blood and the Odhna were sent to the FSL for their examination and as per Serological report (Exb. P/31), blood stains found on axe and Odhna

matched with the ‘B’ blood group which was that of the deceased Karna Ram.Â

Hon’ble Supreme Court in the case of Sucha Singh Vs. State of Haryana reported in (2013) 14 SCC 552, considering the recovery of weapon

pursuant to disclosure made by the accused held as under :-

“In the instant case, pursuant to the information furnished by the Appellant the Kassi Khes and Bedsheet were recovered from the pit under the

road pulia. The recovery has also been witnessed by PW-3, Kaka Singh, who has clearly stated in his evidence that the accused got recovered Kassi,

one Khes and a bedsheet. These articles which were recovered were sent to the Forensic Science Laboratory and the results of the Forensic Science

Laboratory are that the Kassi Bedsheet and Khes were stained with large and small blood stains. These recoveries of the aforesaid articles pursuant

to the disclosure statement made by the Appellant clearly point to the guilt of the Appellant and there is no merit in the contention of learned Counsel

for the Appellant that the statement of the Appellant and the recoveries made pursuant to the statement of the Appellant are of no evidentiary

value.â€​

Hon’ble Supreme Court in the case of Bibhachha vs. State of Orissa reported in 2001 SCC (Cri) 1132 while upholding the conviction of the

accused on the basis of circumstantial evidence, held as under :-

“Both the courts on proper appreciation of evidence have concurrently recorded the findings that the accused is guilty. We may add that as per the

report of the chemical examiner of State Forensic Science Laboratory, one white chaddi, worn by the deceased, marked as 'E' and sample and

marked as 'F' 'H' and 'J' were extensively stained with blood. A few small patches of blood stains were also detected on shawl marked as 'C' Blood

stains were not detected on iron Kati. It may be stated here itself that the same was discovered from bed of flowing river. It is evident from the report

of Serologist (Exbt.19) that portion of shawl and portion of chaddi were stained with human blood, so also sample of sand. The High court has also

noticed that the chemical examiner found that the blood stains found on the shawl (M.O.VII) was of group 'B' and that the blood group of the

deceased was also of group 'B'.â€​

Hon’ble Supreme Court in yet another case of Lavji Moha Vs. State of Gujarat reported in 1994 SCC (Cri) 53, held as under :-

“Since this is an appeal filed under Supreme Court Enlargement Jurisdiction Act, we have gone through the judgment and record carefully. We do

not find any ground to reject the evidence of Jamal Bachhu (PW-1). He has given a cogent and convincing evidence and has given all the details as to

how the accused came to him and confessed before him and that accused said that he would go to the police station. Then we have the evidence of

the Head Constable who was in the police station before whom the accused surrendered himself. As a matter of fact the accused himself has gone to

the police station and lodged a complaint by giving there a First Information Report. The evidence of the two children show that the accused was in

the company of the deceased in the field and thereafter he was seen missing. The accused has no explanation as to where he went and why he went

to the police station and he also had not come forward with any acceptable explanation for the presence of the blood on the clothes as well as on the

pick-axe. The serological report shows that the group of the blood found on the clothes of the accused was the same as that of the deceased. These

are the circumstances which corroborate extra-judicial confession. In our view the High Court has rightly metered in convicting the appellant and

there are no two views possible.â€​

In the present case also, we do not find any substantial reason to disbelieve the disclosure statement and the recovery of the weapon used. It is

relevant to mention here that the doctor, who conducted the postmortem, has also clearly opined that the injures no.1, 2 & 3 on the person of the

deceased were caused by sharp edged weapon and said opinion has gone unrebutted.

As far as the oral dying declaration of the deceased Karna Ram is concerned and all the witnesses referred to above have stated that when they

reached the victim, he was alive and in pain. He had wound on his head and upon asking he told them that the accused appellant had inflicted axe

blow. These witnesses were cross-examined on the point of oral dying declaration but nothing came out from them to say that the dying declaration

was either not made or that the oral dying declaration was later on falsely introduced.

Hon’ble Supreme Court in the case Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P. reported in (2002) 6 SCC 399, while dealing

with the issue of reliance on the dying declaration made by the deceased observed thus:

“7. We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the

same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three

witnesses, as to why at all any of them would tell a lie and attribute falsely a dying declaration to the deceased implicating the accused-Appellant.

Though each of the three witnesses has been cross-examined but there is nothing brought out in their statements to shake their veracity.â€​

Hon’ble Apex Court in yet another case of Prakash and Ors. Vs. State of Madhya Pradesh reported in AIR 1993 SC 65 held as under :-

“In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first

opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had

recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is

nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the

assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is

perverse and requires to be interfered with.

As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted Prakash on the

basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very

short time. In such circumstances, conviction under Section 302, I.P.C. and sentence of life imprisonment of the accused Prakash is justified and no

interference is called for. â€​

In the present case, the circumstantial evidence produced by the prosecution lead to only one conclusion that deceased was murdered by the accused

appellant who is none other but wife of the deceased and it cannot be said to be doubtful in any manner. Thus, the findings of the learned Sessions

Judge convicting the accused appellant for the offence Under Section 302 I.P.C. are liable to be confirmed as they are based on correct appreciation

of evidence and this appeal is liable to be dismissed.

Accordingly, the instant jail appeal filed on behalf of appellant Chanchal is hereby dismissed.