JUDGMENT M.C. Jain, J.
1. The appellants in this appeal are Kastura Devi and Masantu who have preferred the same from jail. The appeal is directed against the judgment and order dated 14-9-1995, passed by Sri R.P. Singh, the then Sessions Judge. Tehri Garhwal in Sessions Trial No. 32 of 1994. Both the accused-appellants have been convicted under Section 302 read with Sections. 34 and 201 I.P.C. Each of them has been sentenced to undergo life imprisonment under Section 302 read with 34 I.P.C. and four years rigorous imprisonment under Section 201 I.P.C. Both the sentences have been ordered to run concurrently.
2. The prosecution case, as unfolded by F.I.R. and the evidence, may be stated briefly. The complainant Hayat Singh P.W.3 is the cousin of the father of deceased Sohan Singh. The deceased was the step son of accused-appellant Kastura Devi and the order accused-appellant Masantu was said to be her paramour. The incident took place on 10-5-1994 at about 6.30 P.M. in village Makhod Namitok. Patwari Circle Bangar and the murder of the victim was committed by strangulation after assaulting him. The accused-appellant Kastura Devi was earlier married to one Jagat Singh but he deserted her due to her loose character. Thereafter, she started living with one Gorkha as his wife. The mother of the deceased died about 13 years back and she left behind Bharat Singh, P.W.4 and the deceased Sohan Singh as her sons. After the death of the mother of the deceased Sohan Singh, his father Uttam Singh brought the accused-appellant Kastura Devi without formal marriage and kept her as his wife. A daughter was also born to them. She started harassing the stepsons, namely, Bharat Singh, P.W.4 and deceased Sohan Singh. For this reason Bharat Singh P.W.4 left his house and went to Delhi. She also developed illicit relations with accused-appellant Masantu. The deceased's father Uttam Singh was an old person. The deceased Sohan Singh had come to know about the illicit relations of his stepmother with Masantu and had threatened to disclose the same all around Kastura Devi was not sending the deceased Sohan Singh to school but she used to keep him in the thatched hut meant for cattle. On 8-5-1994 Bharat Singh, P.W.4 had come to the village from Delhi and he was also informed by his wife that Kastura Devi was not providing food to Sohan Singh and was keeping him in the thatched hut meant for cattle, rendering his life miserable. On 10-5-1994, she sent Sohan Singh to the thatched hut in the evening after meals. At about 5 or 5.30 P.M. on that day Kabutar Singh, P.W. 1 and Bhagirath Singh, P.W.2 saw the deceased Sohan Singh fencing his thatched hut with barbed wire. The two accused appellants did him to death on that day at about 6.30 P.M. They were seen by Kabutar Singh, P.W. 1 taking the dead body of the deceased Sohan Singh inside the thatched hut at about 7 P.M. when he was returning his home with his cattle after collecting them from jungle where they had gone for grazing. Bhagirath Singh, P.W.2 was also returning to his house with his cattle at about the same time and he saw both the accused-appellants entering in and coming out of the thatched hut 2-3 times, Kastura Devi came back to her house on 10-5-1994 at about 7.30 P.M. from her thatched hut of the cattle and again left house in the intervening night of 10/11-5-1994. She returned to her house on 11-5-1994 at about 7 A.M. with Masantu and both of them told the father of the deceased that Sohan Singh died after vomiting. Knowing about it. Bharat Singh, P.W.4 came to the thatched hut but he did not find any sign of vomiting. The dead body of the deceased was there. Several persons collected, Bharat Singh, P:W.4 went to call his uncle Hayat Singh, P.W.3 and informed him about the murder of Sohan Singh. Hayat Singh P.W.3 also saw the dead body of the deceased lying inside the thatched hut. Signs of rope around the neck of the deceased were also noticed. Hayat Singh P.W.3 went to Patwari Chauki Kot Bangar but the Patwari and his peon were not available. Thereafter he went to Barma Jakholi and handed over the written report Ex. Ka. 1 to the Supervisor Kanungo. Mor Singh Kanwar. P.W.6. It was also stated in the F.I.R. that he suspected that Kastura Devi had murdered Sohan Singh. A case was registered against her on the basis of F.I.R. made by Hayat Singh. P.W.3. The investigation of the case was taken up as usual. The other accused Masantu also figured as co-culprit and on 14-5-1994 the case under Section 302/ 201 I.P.C.was registered against both of them. The dead body of the deceased was sent for post-mortem. The statements of the witnesses were recorded. Other usual steps in connection with the investigation were taken and ultimately both the accused-appellants were booked for trial. On trial, they were charged by the learned Sessions Judge. Tehri Garhwal for the offences stated in the earlier part of the judgment.
3. For the sake of clarity and proper appreciation it is worthwhile to state that post mortem over the dead body of the deceased Sohan Singh was conducted by Dr. J. P. Chamoli. P.W.5 on 13-5-1994 at 11 A.M. the deceased was aged about 18 years. The following ante mortem injuries were found on his person :
1. Multiple abrasions on the right side of neck in an area of 10 cm x 7 cm vertical direction oblique and vertical direction. Clotted blood present on the abrasions.
2. Multiple abrasions present on the left side of the neck in an area of 7 cm x 6 cm x 1 cm lateral midline and extending up to nostril.
3. Ligature mark is present all around the neck Breadth of 2.5 cms. Base is hard and parchment like. It is completely encircling the neck below thyroid cartilage. Thereafter multiple abrasions above and below the mark in anterior of neck.
4-5. Contusion 2.5 cms x 1 cm just below left eye on face. Rounded. On dissection it is deep up to muscle.
6. Abrasion in an area of 7 cms x 2 cms vertical direction on right side chest below axilla.
7. Abrasion in an area of 6 cms x 3 cms on right side chest in front.
8. Multiple abrasions on both forearms and dorsum of hands. Blood clots present on surface.
9. Multiple abrasions on both legs. Blood clots present on surface.
10. A contusion on the back in midline in an area of 2 cms x lcm pinkish in colour. Hyoid bone's right corner was found broken.
4. Left eye of the deceased was found closed. Right eye was protruding. His tongue was also protruding. As opined by the Doctor, death had occurred due to asphyxia owing to strangulation.
5. The accused-appellants pleaded not guilty. The prosecution examined six witnesses, namely, Kabutar Singh, P.W.I, Bhagirath Singh, P.W.2, Hayat Singh, P.W.3. Bharat Singh, P.W.4, Dr. J. P. Chamoli, P.W.5 and Mor Singh, Supervisor Kanungo. The learned Sessions Judge believed the prosecution case and the evidence and convicted and sentenced the accused-appellants as mentioned earlier. The matter is in appeal before this Court.
6. As the accused-appellants were unrepresented, Sri Sanjay Ratan, Advocate, was appointed on 23-3-1999 as Amicus Curiae for them to argue out the appeal. However, he did not appear and by our order dated 11-8-1999 we appointed Sri Apul Misra, Advocate as Amicus Curiae for the appellants who argued the appeal on their behalf on 23-9-1999. We also heard learned A.G.A. on behalf of State in opposition of the appeal.
7. The argument of the learned Amicus Curiae is that the case is of circumstantial evidence which is not conclusive nature excluding every other hypothesis excepting the guilt of the accused-appellants. He has laid much stress on this aspect of the matter that Kabutar Singh P.W. 1 has stated that he had seen the accused persons taking the dead body of the deceased from a distance of one kilometer. It has also been pointed out that Bhagirath Singh, P.W.2 also stated that he had noticed the two accused-appellants going in and coming out of the thatched hut from a distance of one mile. It has been urged that they could not notice anything from such a distance and their testimony is bound to be discarded which leaves no other evidence to connect the accused-appellants with the commission of the murder.
8. After giving our thoughtful consideration to the submissions made at the bar and on a careful scrutiny of the evidence on record, we do not ourselves in agreement with the argument of the learned Amicus Curiae. We proceed to mention in the succeeding discussion our reasons in this behalf.
9. It has first to be taken note of that the two accused-appellants had a very strong motive to commit the murder of Sohan Singh. It has come in the evidence of Hayat Singh P.W.3 and Bharat Singh, P.W.4 (brother of the deceased) that the accused-appellant Kastura Devi used to mal-treat the deceased Sohan Singh, so much so that she was forcing him to live in the thatched hut meant for cattle and had never allowed him to go to school. Actually it was also for this reason that Bharat Singh. P.W.4 elder brother of the deceased, being fed up of the ill-treatment of his stepmother Kastura Devi, had gone to Delhi wherefrom he had come on 8-5-1994. She was of tyrannical nature and had rendered the life of the deceased miserable. The deceased was aged about 18 years as per the post-mortem report. The accused-appellant Kastura Devi had not stopped after heaping atrocities but had developed illicit intimacy with the other co-accused Masantu Singh. The testimony of Hayat Singh, P.W.3 has gone unchallenged that earlier Kastura Devi was married to another person who had turned her out because of her loose character. Thereafter she started living with a Gorkha and it was subsequent thereto that Uttam Singh (father of the deceased) brought her and kept her as his wife without formal marriage as his own wife had died thirteen years back. Kastura Devi gave her age as 38 years in her statement Under Section 313 Cr. P. C. Bharat Singh, P.W.4. elder son of Uttam Singh (step son of Kastura Devi) was himself aged about 25 years. It is apparent that there was considerable age difference between Uttam Singh and Kastura Devi. Her background indicates that she was a lady of romantic disposition and it has come in the evidence of Hayat Singh, P.W.3 that she developed illicit relations with the co-accused Masantu Singh, her neighbour, whose thatched hut has been shown in the site plan also. It is indicative of the fact that her libido was insatiable. It has been argued for the accused-appellants that Hayat Singh, P.W.3 admitted in his cross-examination that he spoke about the factum of Kastura Devi's illicit relations with Masantu only on the basis of rumours. It should be pointed in this regard that direct and eye-witness account can hardly be possible in such matters. In the case at hand, there seems to be firm foundation for the inference that she had developed illicit relations with the other co-accused Masantu. Her background narrated above itself is an indicator in this regard. It appeals to logic that the deceased Sohan Singh, who was a young boy of aged 18 years and was suffering atrocities at the hands of his stepmother and had come to have the first hand direct proof in this regard and had threatened her for floating this news in currency authoritatively. Had he done so that would have ridiculed the position of both the accused-appellants all around and would have also weakened the authority of his stepmother over him to deal with him tyrannically. It was for this reason that the two accused-appellants joined hands to exterminate Sohan Singh by committing his murder by strangulation after causing injuries to him. To come to the point, there was a strong motive on the part of both the accused-appellants to commit the murder of Sohan Singh.
10. Secondly, the post-mortem report of the deceased shows that apart from strangulation a number of injuries had been inflicted on him. He himself was a young boy of about 18 years of age and could not have been overpowered by his stepmother alone. It was the job of at least two persons, viz., Kastura Devi and Masantu Singh of causing injuries to him and then strangulating him. Both of them had the common bond and purpose that they were on illicit relationship between them.
11. Thirdly, the accused-appellant Masantu Singh also got recovered the axe from the blunt side of which the injuries found on the person of the deceased could be caused. It is an additional circumstance in the chain of proofs against the accused-appellants.
12. So far as the factum of distance in the testimony of Kabutar Singh, P.W. 1 and Bhagirath Singh, P.W.2 is concerned, it is pertinent to state that both of them are rustic illiterate villagers from the hills, not having any idea of distance as can be expected from educated persons and from those hailing from plains. None of them had any enmity with the accused-appellants and there is no reason of their tendering false evidence against them. Kabutar Singh, P.W. 1 clearly stated in his cross-examination that there was no house or obstruction between him on the one hand and the two accused-appellants on the other when he had seen them carrying the dead body of Sohan Singh inside the room from outer Kholi at about 7 P.M. After about sometime Bhagirath Singh P.W.2 had seen both the accused-appellants going in and coming out of the thatched hut of cattle 2-3 times. It is also apparent from the statements of Kabutar Singh, P.W. 1 and Bhagirath Singh P.W.2 that there was sufficient light at that time. The two accused-appellants were known to them from before and there could be no question of any mistake regarding identification. None else could have any business to be there at the thatched hut of cattle of the accused-appellant Kastura Devi. Both these witnesses had seen Sohan Singh little time before fencing the thatched hut of cattle with barbed wire. Both of them appear to be truthful witnesses.
13. Certain minor contradictions are bound to be there in testimonial assertions of truthful witnesses. It is also to be kept in mind that the witnesses are rustic. What is important to be noted is that the core of the testimony of Kabutar Singh, P.W.I and Bhagirath Singh P.W.2 has the impress of truth and conforms to the probability of the situation.
14. Lastly, the conduct of the accused-appellants also speaks voluminously proving their guilt. Bhagirath Singh. P.W.4 has stated that Kastura Devi had returned to her house at about 7.30 P.M. and left in the early hours of the following day returning at 7 A.M. with Masantu Singh; that both of them started weeping and told his father that Sohan Singh had died after vomiting that then he went to the thatched hut of the cattle and did not find any sign of vomiting at the place where the dead body of Sohan Singh was lying. It shows that both the accused-appellants had planned this murder. After committing the murder, they concocted a defence that Sohan Singh had died all of a sudden after vomiting in the thatched hut of cattle where he used to sleep in the night. They thought to get away with this excuse but the reality unfolded when Bharat Singh, P.W.4 and other villagers reached the thatched hut of the cattle and did not find any sign of vomiting by Sohan Singh there. Instead, the dead body of Sohan Singh was found lying there with a number of injuries.
15. There is a popular proverb that the witnesses may lie but the circumstances will not. No doubt, it is a case of circumstantial evidence. But the circumstances proved by the prosecution in the present case are of conclusive nature excluding every other hypothesis excepting that the present two accused-appellants committed the murder of Sohan Singh and then attempted to screen the evidence of this crime. The proved circumstances have a complete chain leaving no room for doubt. It is most unfortunate that they committed this heinous crime to conceal their immoral and illicit relationship in which the deceased had become a hindrance.
16. Our conclusion is that the two accused-appellants have rightly been convicted By the learned Court below and no interference is called for by this Court in appeal.
17. For the reasons contained in the forgoing discussion, we dismiss this appeal and maintain the conviction and sentence passed against the accused-appellants Kastura Devi and Masantu under Section 302 read with Sections 34 and 201, I.P.C. the accused appellants are in jail. They shall serve out sentences awarded to them.
18. Sri Apul Misra Advocate who argued the appeal on behalf of the appellants as Amicus Curiae shall get his fee as per rules.