JUDGMENT A.S. Tripathi, J.
1. This appeal has been preferred against the judgment and order D/- 3 1 -.3-1986 passed by IV Add. Sessions Judge. Aligarh, whereby the appellant Smt. Gyano alias Gyanwati and her co-accused Rajvir alias Rajpal were convicted under Section 302, read with Section 34 I PC and each of them were sentenced to imprisonment for life. Both of them were further convicted under Section 210 IPC and each of them were sentenced to undergo three years' rigorous imprisonment. The sentences were directed to run concurrently.
2. This appeal has been filed only on behalf of Smt. Gyanwati from jail. No appeal has been filed on behalf of Rajvir alias Rajpal. On an enquiry from the office it has been reported that since date no appeal has been preferred on behalf of Rajvir alias Rajpal in this case. As such, we proceed to hear the appeal preferred by Smt. Gyano alias Gyanwati on merits.
3. The facts of the case are that Rajvir alias Rajpal and Mahipal Singh were real brothers being sons of Ram Swarup. Smt. Gyano alias Gyanwati is the wife of Mahipal Singh, deceased. They were the residents of village Kinua police station Chandaus district Aligarh. Both the Brothers and Smt. Gyanwati were living in the same house, in different parts. It was alleged that accused, Rajvir was not married. Some lady was living with him for some time but he had left her. Their house consisted of two rooms common courtyard. Verandah and Kitchen etc, as was shown in the site-plan, Ex. Ka. 8.
4. The prosecution case was that Mahipal, deceased, was not seen in the village for 4-5 days. Arumour was afloat in the village about the whereabouts of Mahipal on 9-5-1985 and the people in the village started talking that Mahipal has been done to death by his brother in collusion with Smt. Gyanwati, who had developed illicit relations with her Jeth, Rahvi-alias Rajpal. It was also being presumed that they had concealed the deadbody of Mahipal Singh somewhere in the house itself.
The rumour spread in the village and the villagers assembled at the house of the appellant and started enquiry about Mahipal. On the presumptions being shown by the villagers the Chowkidar went to the police station and lodged the first information report at 4-10 p.m. same day, which is Ex. Ka 1 on record. On the basis of the said report a case was registered and entries were made in the G. D. The investigation of the case was entrusted to Sub inspector, Shiv Raj Singh Malik. The village, Chowkidar had informed the police at the police station that Mahipal was not seen in the village for the last four five days and village people believed that Mahipal has been murdered by his brother, Rajvir in collusion with Smt. Gyanwati and his dead body has been concealed in the house. The village people had surrounded the house and both the accused, Rajvir and Smt. Gyanwali were forced to remain in the house. Sub Inspector. Shiv Raj Singh Malik recorded the statement of Chowkidar and went on the spot with police force. Smt. Gyanwati and Rajvir were present in their house. The villagers informed that both Rajvir and Smt. Gyanwati had confessed their guilt to the villagers that they had murdered Mahipal and the dead body was concealed in the house. They also disclosed that the weapon was also kept inside the house. Both, Rajvir alias Rajpal and Smt. Gyanwati were arrested by the Investigating Officer. The Investigating Officer recorded their confessional statements and on their pointing out the dead body was dug out from the room where they had concealed it. The dead body was identified by the children of the deceased and also his sister who had been called from the neghbouring village and recovery memo, Ext. Ka 3 was prepared. The blood stained Gandasa (a heavy cutting weapon) was also recovered on the pointing out of the accused-appellant which was used in commission of the murder. The same was kept below the wheat bags in the said room and recovery memo, Ex. Ka 2 was prepared for the same. The dead body was sealed.
5. The accused had also disclosed that they had committed the murder of Mahipal while he was sleeping on Rajai and the Rajai had become blood stained and they had burnt the same in nearby the field of Mangaldeo. The Investigating Officer went on the spot and on the pointing out of the accused recovered the ashes of burnt Rajai and prepared the memo, Ex. Ka. 4. The Investigating Officer had also found the cover of the Rajai in the room which was also blood stained, the same was also taken in possession and memo. Ex. Ka 5 was prepared.
6. The Investigating Officer inspected the place of occurrence and prepared-site-plan, Ex. Ka 8. He also prepared the site-plan of the place where the ashes was recovered, which is Ex. Ka 9. Inquest report of the deadbody, which is Ex. Ka. 10. The Investigating Officer also prepared sketch of the dead body, Ex. Ka.11, challanknash Ex. Ka 12, and letter to the Chief Medical Officer, Ex. Ka-13 and sample of seal, Ex. Ka. 14. The sealed dead body and the relevant papers were handed over to Constables, Churaman and Virendra, who brought the dead body and the relevant papers to mortuary. Aligarh.
7. Then the Investigating Officer recorded the statement of the witnesses Mohan Lal. Deo Dutt, Chhitar Singh, Chitarmal sharma and others. The investigations of the case was thereafter taken up by the Station Officer. Sri Uppal who sent the blood stained articles for Chemical examination. The statement of other witnesses were also recorded and chargesheet was submitted on 22-5-1985.
8. The postmortem of the dead body of Mahipal Singh was conducted on 10-5-1985 at 3-30 P.M. by Dr. Surendra Singh. Following ante-mortem injuries were found on the person of the deceased. Mahipal Singh :
(i) Incised wound 7.5 cm x 4 1/2 cm bone deep at vertabra level. Vertabra was cut. All soft tissues including blood vessels were found cut except muscle of back of neck. Margins were clean cut. Tapering was towards right side.
(ii) Incised wound 6 cm x 2 cm x bone deep on right side face, 2 cm below ear. Jawright side was cut. Margins were clan cut. Tapering was towards right side.
9. On internal examination, the doctor found semidigested food in the stomach. Large and small intestine were found full of faecal matter and gas.
10. In the opinion of the doctor, the death of Mahipal was caused due to shock and haemorrhage resulting from the untemortem injuries found on the dead body. He further opined that the death of Mahipal was possibly caused in the night intervening 4/5th May. 1985 and both the ante-mortem injuries were possibly caused by a Gandasa.
11. On chemical examination, Gandasa, Lihaf, cover, burnt piece of cloth, ashes, underwear and Banian were found blood stained. Lihar cover was found stained with human blood. The blood stains on other articles became disintegrated. The report of the Chemical Examiner is D/- 23-11-1985.
12. The appellant, Smt. Gyano alias Gyanwati was charged along with Rajvir alias Rajpal under Section 302, read with Section 34, and 201, IPC They had pleaded not guilty.
13. The prosecution in support of its case examined seven witnesses and an affidavit of Constable, Virendra Singh had been filed, P.W. 1, Rajvir is the Chowkidar of the village, who had lodged the first information report at the police station P.W. 2, Chhitar Singh is a witness of fact. He was present when the accused were arrested and the dead body was recovered. However, he has staled that the accused had not confessed before him.
14. P.W. 3, Gaffar, is a witness of fact. He stated that Smt. Gyanwati, appellant, had purchased 2-1/2 Kilograms of sale 2-3 days before the recovery of the dead-body. P.W. 4 Chhatar Pal Sharma is a witness of fact who supported the prosecution case. He also stated that the accused had confessed the guilt before him. P.W. 5 Mohan Lal, is also a witness of fact and supported the prosecution case. P.W. 6., Dr. Surendra Singh is the Medical Officer, who had conducted the post mortem examination of the dead body of Mahipal Singh. P.W. 7, Shivraj Singh Malik is the Investigating Officer, who had conducted the major part of the investigation. He also proved the chargeshcet submitted by the Station Officer, Sri Uppal.
15. The accused-appellant, Smt. Gyanwati. denied the charges. She simply stated that she was falsely implicated on account of the enmity with the witness, Chhatarpal Singh.
16. The trial court after assessing the evidence on record held that the charges against the accused were proved beyond all reasonable doubt and they were convicted and sentenced as aforesaid.
17. Against the said order only Smt. Gyanwati had preferred the appeal which is before us.
18. We have heard learned Counsel for the parties at length and scrutinised the entire record.
19. We are conscious of the fact that there is no direct evidence regarding commission of the murder of Mahipal. But it is clear on record that in view of the circumstancial evidence of recovery of the dead body, recovery of the burnt ashes of Rajai. recovery of blood stained Gandasa, recovery of blood stained cover of Rajai and recovery of the dead body on the pointing out of the accused from inside the house are clear indicative of the complicity of the appellant in the crime. There is very strong circumstantial evidence besides the extra judicial confessional evidence of the accused to prove their guilt.
20. It is proved on record from the postmortem report that Mahipal Singh was murdered. Two severe blows were given by heavy cutting weapon like Gandasa and after his death the dead body was concealed inside the house of the appellant in a room digging out the part of it from where it was recovered. It has also come in the evidence of Chhitar Singh and Chhatar Pal Sharma that deceased Mahipal had developed illicit relations with Smt. Gyanwati, appellant for quite some time and in the circumstances as is evident from the record they had conspired to rid of Mahipal Singh and with their common intention this murder was committed and the dead body was concealed. It has also come in the evidence that the appellant had confessed the guilt before the villegers. She had also purchased 2 1/2 kilograms of salt to apply on the dead body of the deceased. All the recoveries have been made on the pointing out of the appellant.
21. In the oral evidence P.W. 1 Rajvir, who was Chaokidar of the village, had simply informed the police regarding apprehension of the villagers and the first information report was lodged and immediately thereafter the Investigating Officer reached the spot and the accused were arrested. The dead body and other incriminating articles were recovered. There is nothing in the cross examination to discard him P.W. 2 Chhitar Singh also stated that the recovaries were made before him. He simply denied his earlier version that the accused had not confessed their guilt before him. He had seen that both the accused were arrested. He admitted in the cross examination by the prosecution that the dead body was recovered before him. He also admitted later on that the appellant, Rajvir had disclosed that when Mahipal was killed he was sleeping upon Rajai. He is also the witness of recovery memoes which he admitted. Therefore, from his statement there is nothing to show that he had denied the prosecution case rather he admitted most of the facts except that the accused had confesssed before him regarding commission of the murder.
22. P.W. 3, Gaffar had simply stated that 2 1/2 kilograms of salt was purchased by the appellant. Two-three days before the recovery of the dead body the salt was presumably used on the dead body so that it may decay earlier and foul smell comes out.
23. P.W. 4, Chhatar Pal Sharma fully supported the prosecution case. He is also a witness of recovery of the dead body and the articles referred above. He also stated that one lady was living with accused, Rajvir Singh for some time but he had left her long back and Rajvir had developed illicit relations with Smt. Gyanwati. There is no reason to discredit the testimony of this witness.
24. P.W. 5, Mohan Lal, also stated with details as to how the villagers apprehended that Mahipal was missing and when the dead body was recovered before him the accused had confessed. He also stated that it was known in the village that accused, Rajvir Singh had developed illicit relations with Smt. Gyanwati and both of them in furtherance of their common intention to get rid of Mahipal had committed his murder. There is no reason to disbelieve him when he is an independent witness.
25. It has also come in the statement of the witnesses that real sister of the deceased was called from the nearby village who had also witnessed the entire recovery of the dead body and other articles. The own children of the deceased and appellant, Smt. Gyanwati had identified the dead body of Mahipal and had shown their attachment with the sister of Mahipal, at that time rather than the appellant, who is their real mother.
26. It has also come in the statement of Chhatar Pal Sharma that Smt. Gyanwati had left her house along with the accused, Rajvir and they had lived at Delhi for months on several occasions earlier. This was a clear intention of their illicit connection and that was the cause and motive for the murder of Mahipal.
27. It is important to note that the dead body was concealed inside the house. Only accused, Rajvir and Smt. Gyanwati and small children were living. No body else was living in that house. The dead body was recovered in presence of the accused and witnesses of the village. Had there been any other reason or any doubt for the innocence of the appellant they must have informed the police or any body in the village that Mahipal was missing.
28. We again revert back to the recovery of blood stained Gandasa, recovery of the dcad body from inside the room where nobody else had access except the accused, recovery of ashes of burnt Rajai and recovery of the cover of Rajai which was blood stained. All these blood stains were found to be human blood by the chemical examiner. All these recoveries were made on the pointing out of the appellant along with Rajvir. The extra-judicial confession was made by the appellant before the villagers P.W. 4, Chhatar Pal Sharma, clearly stated that the appellant herself had told that they had committed the murder of Mahipal. P.W. 5, Mohan Lal, also corroborated this fact. They are independent witnesses. There is no reason to disbelieve them. The appellant along with Rajvir Singh was surrounded by the village people. They were not allowed to leave. The Investigating Officer reached the spot and recovered the above articles on their pointing out. We do not find any discrepancy in the statements of the prosecution witnesses to discredit the recovery of these articles on the pointing out of the accused. It is also noteworthy that the main gate of the house was only one. Two brothers were living in different parts of the same house. The room from where the dead body was recovered was not accessible to outsiders except the inmates of the house, P.W. 4, Chhatar Pal Sharma, has stated that the house was also surrounded by boundary walls. However, P.W. 5 Mohan Lal stated that there is no partition wall inside the house. Nothing was suggested to any of the witnesses that the room from where the dead body was recovered was in possession of anybody else except the accused. The Investigating Officer Sri Shiv Raj Singh Malik has clearly stated that the dead-body was recovered from digging a portion of the room in presence of the witnesses and the accused on their pointing out P.W. 4 Chhatarpal Sharma and Mohan Lal P.W. 5, are independent witnesses. They have corroborated the material facts recoveries and extra-judicial confession. However, it was suggested that there was some quarrel between them and the accused, but the same was denied. There is nothing on record to show that there was any enmity between the appellant and the witnesses.
29. Therefore, after examining the evidence on record and considering the glaring circumstances we find that it is established on record that Mahipal Singh was murdered by the accused-appellant, Smt. Gyanwati having illicit connection with Rajvir. The recovery of the dead body from inside the room, recovery of blood stained Gandasa, recovery of cover of Rajai and the recovery of burnt ashes on the pointing out of the appellant are clinching evidence to prove the guilt. There was no explanation given on behalf of the appellant and there could be no doubt regarding the recovery of the dead body and the articles from the house of the appellant which was not accessible to any outsider and the recovery of blood stained Gandasa. The chain of the circumstances established beyond all reasonable doubt that the appellant having connived with Rajvir on account of illicit connection and in furtherance of their common intention they had committed the murder of Mahipal while he was sleeping and his dead body was concealed in the room digging a portion of it finding the blood stained Gandasa below the wheat bags to be detroyed later on.
30. It is improbable that Mahipal would have been murdered any where else and his dead body was buried inside the room and Gandasa kept below the wheat bags by any unknown person. It has not been suggested that the appellant and Rajvir were out during the period from when Mahipal was not seen in the village till the recovery of the dead body. Both of them were living inside the house and remained there during all that period and there is no doubt that the recovery was made on their pointing out when they were arrested by the police after lodging of the first information report and they were not allowed to escape by the villagers who had surrounded their house. We also do not find any reason to discredit the testimony of Chhatrapal Shamra and Mohan Lal who had proved the recovery of the above articles from the house of the accused and the circumstances of the case. They are independent witnesses and there is absolutely no reason to discredit them on any point.
31. Therefore, from the evidence and circumstances of the case the charges against the appellant were established beyond doubt and the learned Sessions Judge had rightly convicted her and sentenced to imprisonment for life 'under Section 302, read with Section 34, IPC and three years rigorous imprisonment under Section 201, IPC. We do not find any merit in this appeal filed by Smt. Gyano alias Gyanwati and the appeal is accordingly dismissed.
32. The appellant, Smt. Gyanwati, is in jail. She will remain there to serve out the sentences awarded to her.