Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Anil Kumar Sharma) Challenge in this appeal is to the judgment and order dated 20.07.2006 passed by Additional Sessions Judge, Court No.1, Banda in S.T. No. 157/2005 (Crime No. 55/2005, P.S. Pailani) whereby the appellant has been found guilty for the offence punishable under section 302 IPC and had been sentenced to undergo life imprisonment and to pay fine of Rs. 5,000/- with default stipulation. However, two co-accused, namely Khunti @ Ram Sajivan and Smt. Makhaniya have been acquitted for the offence punishable under section 302/34 IPC giving them benefit of doubt.
2. Succinctly stated the prosecution case before the trial court was that on 05.04.2005 at 7.45 A.M. Manoj Kumar Singh s/o Kallu Singh, r/o Sindhan Kalan, P.S. Pailani, District Banda submitted a written report addressed to S.O. of P.S. Pailani, wherein he stated that his real younger brother Arvind Singh aged about 22 years often visited the house of accused-appellant and in the night he has gone to his house for some work but did not return. Today in the morning at about 3- 4 O'clock he heard the sound of firing from the house of Santosh Nai and in the morning at about 6 O'clock he came to know that dead body of his brother Arvind is lying in the house of Santosh Nai. He along with his family members and other villagers went there and found that his brother Arvind is lying dead inside house of Santosh Nai. He had gun shot injury on his chest and country made pistol is lying there. The complainant believed that his brother has been done to death by gun shot injury at the hands of Santosh Nai s/o Ojha Nai, Khunti @ Ram Sajivan s/o Dukhiva Nai and Smt. Makhaniya w/o Santosh Nai. Leaving the dead body on the spot the complainant submitted his report at police station Pailani, on the basis whereof case crime no. 55/2005, under section 302 IPC was registered and its investigation was taken over by S.O. P.L. Rawat. He along with S.I. Ram Avtar Sankhwar and other police force reached at the spot and found that the dead body of the deceased was lying in the northern Paur of the house entry and blood had spread around the dead body. On his direction the inquest upon the cadaver of the deceased was performed by S.I. Ram Avtar Sankhwar. He prepared the inquest report and along with usual papers sent the dead body for post mortem examination. Dr. T. R. Srsaina conducted post mortem examination of the deceased at 4.00 P.M. on 05.04.2005. He found that 22-years old deceased had average built body, his both eyes were closed and mouth was semi opened. His right hand was handicapped as index and ring figures were missing, rigor mortis was present all over the body. Doctor found the following ante mortem injuries on his person:
1. Fire arm entry wound of left side chest 2 cm x 2 cm rounded blackening and tattooing singing around hair with tissue present 12 cm below thoracic and 3 cm medial to scapula angle.
2. Direction strnum chest→ inter coastal pair of 5th, 6th rib → lacerated both sides chambers of heart → lacerated left side upper line → lacerated left lung middle part →inter costal pair of rib at 3rd and 4th.
In internal examination the doctor found 1.5 litre blood in thoracic cavity. Both sides of pleura, pericardium and heart were lacerated. Blood vessels and heart were empty, 100 ml watery food was found in the stomach. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem injuries about half day before.
3. Ere the Investigating Officer interrogated complainant Manoj Kumar Singh, his father Kallu Singh, wife Smt. Chanda and prepared site plan at the instance of the complainant. He collected plain and blood stained earth from the spot through memo. He found .315 bore bullet embedded in the wall and prepared memo in the presence of witnesses. The country made pistol of .315 bore found at the spot was also seized and its barrel contained an empty cartridge. Both the articles were also taken possession in the presence of the witnesses and memo was prepared by S.I. Ram Avtar Sankhwar. Thereafter the Investigating officer interrogated other witnesses during investigation. He received affidavit of Manoj Kumar Singh, Shyam Sunder, Vinod Singh and Chandra Ketu and thereafter witnesses Arvind and Kuldeep Singh were interrogated. The investigation culminated in charge sheet against the accused persons. The bullet, empty cartridge and .315 bore country made pistol recovered from the spot were sent for examination to Forensic Science Laboratory, Agra. The laboratory in its report found that the empty cartridge was fired from the aforesaid country made pistol. However, no opinion could be given regarding bullet.
4. After committal of the case to the Court of Session charge under section 302/34 IPC was framed against all the three accused charge sheeted by the police, who pleaded not guilty and claimed to be tried.
5. In support of the charge the prosecution examined complainant Manoj Kumar PW-1, Shyam Sunder PW-2, S.I. Ram Avtar Sankhwar PW-3, Dr. T. R. Sarsaina PW-4, Ashok Singh PW-5, Constable Ameenuddin PW-6 and S.I. P.L. Rawat PW-7. The accused-appellant in his statement under section 313 Cr.P.C. has denied all the facts and circumstances alleged by the prosecution stating that the police has fabricated evidence against him. However, the accused did not adduce any evidence in defence.
6. The learned Additional Sessions Judge after hearing the counsel for the parties through impugned judgment and order has convicted the accused-appellant as stated in paragraph-1 of this judgment.
7. We have heard Sri R. B. Sahai and Sri R.P. Pandey, learned counsel of the appellant and Sri R.Y. Pandey, learned AGA for the State and perused the original record of the case carefully.
8. Learned counsel for the appellant has made three-fold submissions before us, namely -
i) that the instant case is fully covered under Exception-1 of section 300 IPC, so the learned trial Court has erred in convicting the accused- appellant u/s 302/34 IPC and at best the accused can be found guilty for the offence punishable u/ s 304 part-II of the Indian Penal Code;
ii) that it was a case of accident during scuffle between the accused and the deceased, when the former found the later along with his wife inside the house trying to forcibly rape her; or
iii) that the accused in exercise of his right of private defence shot at the deceased resulting in his death.
9. There is an eye witness of the incident namely Shyam Sunder PW-2. Apart from it there is recovery of dead body of the deceased, his wearing apparels, chappal along with a country made pistol .315 bore from the house of the accused which is fully proved through the evidence led by the prosecution during trial and more so these recoveries have not been disputed on behalf of accused-appellant. The incestuous relations of the deceased with the wife of the accused have been alleged by the prosecution but denied by the defence. Although the accused has not stated a single word in his examination u/s 313 Cr.P.C., but from the suggestions given to PW-1 and PW-7 it appears that the case of the accused before the trial Court was that the deceased entered in the house of the accused along with a country made pistol to commit forcible intercourse with the wife of accused, which was resisted by accused and his wife and in the scuffle shot fired from the country made pistol resulted into his death. The defence counsel has suggested to PW-1 and PW-7 in their cross-examination as under:
Manoj Kumar, PW-1 ";g dguk xyr gS fd tc lUrks"k ?kj ij ugha jgrk Fkk rc vjfoUn reaps dh uksd ij e[kfu;k ls cykRdkj djrk FkkA ;g dguk xyr gS fd bl ckr dh f'kdk;r dbZ ckj lUrks"k o e[kfu;k us dh gksA ;g dguk xyr gS fd Hk;o'k o gekjs ?kjks ls isV ikyus ds dkj.k bu yksxks us iqfyl esa f'kdk;rA esjk HkkbZ e[kfu;k ls izse djrk FkkA---------"
" eq>s ugha ekywe dh lUrks"k us gekjs ifjokj okyksa dk ;g crk;k gks fd e[kfu;k ds fpYykus ij oks cpkus x;k vkSj mlus vjfoUn dk reapk idM+ fy;k Fkk vkSj blh Nhuk >iVh esa nq?kZVuko'k Qk;j gks x;k Fkk tks vjfoUn dks yx x;k FkkA eq>s ;g Hkh ugha ekywe fd lUrks"k us gekjs ?kj okyks dks ;g crk;k gks fd vxj oks vjfoUn dk reapk u idM+rk rks vjfoUn mls gh ekj nsrkA----- "
" ;g dguk xyr gS fd ?kVuk dh jkr 1&2 cts ds chp reapk ysdj nhoky Qkan dj lUrks"k ds ?kj x;k gks vkSj ogkW tkdj dejs ds vUnj mlus vius iS.V 'kVZ mrkj dj VkWx fn;s vkSj p< s ugha ekywe fd lUrks"k us vjfoUn dk reapk idM+k gks vkSj xksyh nq?kZVuko'k pyh gks tks vjfoUn dk yxh gksA"
";g dguk xyr gS fd vjfoUn reUps ds cy ij tcfj;k e[kfu;k ds lkFk cykRdkj djuk pkgrk Fkk vkSj lUrks"k ds fojks/k djus ij eq>s vius reUps dh cV ls ekjk rFkk mls xksyh ekj nsus dh dksf'k'k djus yxk fd lUrks"k ds }kjk mldk gkFk ejksM+ nsus o reUpk Nhuus dk iz;kl djus ds nkSjku mlds nq?kZVuko'k Qk;j gks tkus ds dkj.k xksyh yxh Fkh vkSj og ogkW ls ckgjh dejs esa vkdj fxj dj ej x;kA"
In cross-examination of investigating officer PW-7 following suggestions were made by the learned defence counsel:
SI P. L. Rawat, PW-7 ";g dguk xyr gS fd fnukad 5-4-2005 dks lqcg djhc 5&6 cts lUrks"k ukbZ Fkkuk vk;k Fkk vkSj mlus eq>ls crk;k Fkk fd nq?kZVuko'k Nhuk >iVh esa Qk;j gks x;s Fks] vjfoUn ds xksyh yx x;h o og ej x;kA ;g dguk Hkh xyr gS fd bl lwpuk ij eSa flikfg;ksa ds lkFk lUrks"k ds ?kj x;k Fkk vkSj ogkW ?kVukLFky dk fujh{k.k djus ds ckn lUrks"k] jkelthou o e[kfu;k dks Fkkuk fyok ys x;k FkkA ;g dguk Hkh xyr gS fd eSaus lUrks"k ds ckj ckj dgus ds ckoktwn mldh fjiksVZ ugha fy[kh FkhA"
10. The defence had taken the plea of accidental firing before the trial Court, which had been categorically repelled by the learned Addl. Sessions Judge. On our examination of the entire evidence on record, we too find that the learned trial Court has not committed any factual or legal error in its conclusions. In this connection we may usefully refer the observations of the Apex Court given by its bench consisting of 3-Hon'ble Judges in the case of K. M. Nanavati Vs. State of Maharashtra AIR 1962 SC 605, on which the learned counsel for the appellant has placed heavy reliance. In para-18 of the report, it has been held:
".... To appreciate the scope of the alleged omissions, it is necessary to read the relevant provisions. Section 80 of the Indian Penal Code. 'Nothing is an offence which is done by accident or misforture, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.' Evidence Act. Section 103: 'The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.' Section 105: 'When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in an law defining the offence, is upon him, and the court shall presume the absence of such circumstances.' Section 3: 'In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: A fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.' Section-4:.......'Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.' The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favouar of the accused as a general rules, and it is the duty of the prosecution to prove the guilty of the accused; to put it in other woreds, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, s. 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The court then shall presume the absence of circumstances bringing the case within the provisions of s. 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admission made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts."
11. In this context reference to Section 106, Evidence Act is also necessary, as the dead body of the deceased had been found inside the house of the accused along with the weapon of offence and a bullet inserted in the wall of the kotha of his house. The law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which is capable of leading having regard to the facts and circumstances of the case. Here it is necessary to keep in mind sec. 106 of the Evidence Act which says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparative of a lighter character. In view of s. 106 Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish it's case lies entirely upon the prosecution to offer any explanation. [Daulatram vs. State of Chhattisgarh, 2008 (63) ACC 121, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 (57) ACC 938 (SC), Chankya Dhibar vs. State of W.B., (2004) 12 SCC 398 and State of Punjab vs. Karnail Singh, 2003 (47) ACC 654 (SC).
12. Shyam Sunder PW-2 has stated at about 4.00 a.m. on 5.4.2005 while going to jungle when he passed through the house of accused he heard voices of Arvind Singh (deceased), Santosh, Ram Sajiwan and Makhania (all accused persons). Arvind was calling for help and he perceived that some one had pressed his mouth. Sanotsh and Ram Sajiwan were saying keep on pressing and then he heard retort of fire. He was frieghtened and then he heard Santosh saying that now he is dead and Ram Sajiwan advised to dispose of his dead body. Then he entered the house of Santosh and called him, whereupon all the three accused came in the court-yard and in the kothri he found the dead body of Arvind Singh and blood was oozing out from chest and back. At that time accused Santosh was having country made pistol in his hand and there were scratch marks on his face. Thereafter, accused Santosh pointing country made pistol threatened him, if he discloses the story to anyone. He returned back but on account of fear he did not tell about the incident to anyone. He has proved his affidavit submitted to S.P., Banda on 13.4.2005. He had been extensively cross-examined by the defence, wherein he has stated that deceased was not friend of the deceased. No suggestion had been given to this witness in cross-examination as to how is he inimical with the accused persons? Mere suggestion at the end of cross-examination had been given to him that he is deposing in the case on account of friendship with the deceased, which had been denied by him. This witness does not belong to caste of the deceased or the accused. He had given plausible explanation for keeping mum about the incident. According to him, he had come out only after he came to know that the accused persons had been sent to jail. The statement of this witness is consistent with the prosecution story. Complainant PW-1 is not the eye witness of the incident. He did not visit the house of accused even after hearing sound of fire from the house of the accused at about 3-4 a.m.
13. Apart from the alleged eye witness account there are circumstances, which are well proved from the evidence and taking them together they form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else. The undisputed circumstances are:
If the accused was earlier used to commit sexual intercourse with the wife of the accused at the point of country made pistol or in the night of incident he barged into his house and tried to outrage the modesty of Makhania, then she could have very stated these facts in her examination under section 313 Cr.P.C. or the accused could have led other evidence to substantiate this plea, but they opted to keep mum. Thus, this theory of the defence has no legs to stand. On contrary there is evidence of PW-1, the brother of the deceased, who had stated unequivocally stated that his brother was having love affairs with Makhania, which were also objected to by them, but he did not pay any heed. It has come in his evidence that once the deceased consumed poison, when he was obstructed by in his unethical activities.
14. It is trite law that circumstantial evidence, in order to be relied on, must satisfy the following tests:
(1) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(2) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.
(3) The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.
(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence - in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
The gist of the above proposition is that the facts and circumstances on which the prosecution relies must be fully established. They must be fully and firmly established. The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else. These facts must lead to one conclusion and one only namely the guilt of the accused and lastly it must exclude all reasonable hypothesis consistent with the innocence of the accused. In other words we must conclude that by all human probability, it must be the accused and the accused only who must have committed the crime.
15. Since no evidence has been led by the accused to substantiate his plea of accidental firing, or he acted in self defence or the shot of country made pistol was fired when accused-appellant was grappling with the deceased and he twisted his hand or that he found his wife in obscene position with the deceased then in sudden anger he fired shot on the deceased. The facts of the case of K. M. Nanawati are quite distinct, so it would not help the accused-appellant and the instant case does not fall within the purview of Section 304-II IPC. Dr. Sarsain PW-4 has noted in his autopsy notes that deceased was handicapped as his index and middle fingers of right hand were missing. It has no where come in evidence that the accused was doing his personal activities with his left hand. Further, if the right hand of the deceased was twisted by the accused then the shot would not hit the chest of the deceased, rather it can cause entry wound on his back.
16. In view of the above, we find that all the three arguments advanced by learned counsel for the appellant have no force. The facts and circumstances of the case as also the evidence led by the prosecution in support of the case clearly prove the guilt of accused-appellant without any reasonable doubt. The learned trial Court has not erred at all in returning the guilty verdict for the accused u/s 302 IPC and appropriate sentence had been awarded to him. The appeal, therefore, sans merits and is accordingly dismissed. The accused is in jail and would serve out the remaining part of the sentence awarded to him.
17. Let certified copy of the judgment be sent to the Court concerned as also the Chief Judicial Magistrate, Banda for ensuring compliance, which should be reported to the Court within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J) December 20, 2012 Imroz/-