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PETITIONER: KULDEEP SINGH & ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       04/04/2000

BENCH: Doraswami Raju, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     S.  N.  VARIAVA, J.

     This  Appeal is against the Judgment dated 10th March, 1997.   By the judgment the Appeal of the Appellants against their  convictions by the Additional Sessions Judge has been confirmed.   Appellants  1  and 2 had been  convicted  under Sections  302 and 120B I.P.C.  Appellants 3 and 4 have  been convicted  under  Section 120B read with Section 302  I.P.C. All of them are sentenced to undergo imprisonment for life.

     Briefly stated the facts are as follows:

     One  Sohan  Singh  and his brother  Mohan  Singh  were staying  in different portion of house at Ward No.  35,  Old Abadi,  Ganganagar.  Both of them had practiced as Vaids and were running a medical shop.  Sohan Singh was married to one Karnal Kaur.  He has two daughters and one son.  Mohan Singh was  married  to Surjeet Kaur i.e.  Appellant No.  4.   They have three daughters.  Mohan Singh expired sometime in 1974. Thereafter,  Sohan Singh and his family and Appellant No.  4 and  her  children continued to stay in the portions of  the same  house occupied by them earlier.  Sohan Singh was found murdered in his own house, in the night intervening 15th and 16th of October 1977.

     It  is the case of the prosecution that Appellant  No. 1,  Kuldeep  Singh  was  earlier a tenant  of  Mohan  Singh. Appellant  No.   2,  Mahindra Singh is a maternal  uncle  of Appellant No.  1.  Appellant No.  3, Uttam Chand is a friend of Appellant No.  1.  It is the case of the prosecution that Appellant  No.   1  developed   illicit  relationship   with Appellant  No.4.   It  is the case of the  prosecution  that Appellant Nos.  2 and 3 used to visit the house of Appellant No.   4 when Appellant No.  1 was a tenant there.  It is the case  of  the prosecution that Sohan Singh was objecting  to the  illicit  relationship  between  Appellant  No.   1  and Appellant  No.   4.  It is the case of the prosecution  that Sohan  Singh was also objecting to Appellant No.  4  wanting to  sell  off her portion of the house.  It was the case  of the  prosecution  that all the four Appellants conspired  to cause  the death of Sohan Singh and in pursuance of the said conspiracy  Appellants 1 and 2 murdered Sohan Singh.  It  is this  case of the prosecution that in pursuance of the  said conspiracy  Appellant  No.   4 got all the  family  members,

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including  the wife of Sohan Singh, to attend Ramleela which was  being  played  in the village.  It is the case  of  the prosecution  that Appellant No.  4 tried to persuade the son of  Sohan  Singh  also to stay back at home  but  could  not succeed  in  doing so as the son insisted on  attending  the Ramleela  programme.  It is the case of the prosecution that Appellant No.  4 accompanied the other family members to the Ramleela  festival,  but  thereafter   went  away  from  the Ramleela  grounds  for  some time.  It is the  case  of  the prosecution  that when Karnail Kaur and other family members asked  Appellant No.  4 where she had gone, she stated  that as  she was not feeling well so she had sat in the open away from the crowd.

     Karnal  Kaur  and  other family members came  home  at about 1 A.M.  On coming home they found that Sohan Singh was lying  in pool of blood.  It is the case of the  prosecution that on coming home Appellant No.  4 immediately went to her room and bolted the outside door, which allowed entry to her room  from outside.  It is the case of the prosecution  that thereafter Appellant No.  4 called Jaswinder Kaur and Dalbir Kaur, the daughters of Sohan Singh to her room and told them not  to say that they had any enemy or to name any person as otherwise there would be trouble.

     It is the case of the prosecution that on seeing Sohan Singh  there  was  a  outcry by  the  family  members  which attracted  the  neighbours  including   one  Harnek   Singh, Advocate.   The  said Harnek Singh, then called the  police. The police reached the house of Sohan Singh and recorded the statement  of Jaswinder Kaur, the daughter of the  deceased. They  then inspected the site, held an inquest, interrogated the witnesses and arrested the accused.

     Charges  under  Sections  120B and  302  I.P.C.   were framed against all the four accused, who pleaded not guilty. The  prosecution  examined 15 witnesses.  Appellants led  no evidence.   All  the  Appellants in their  statements  under Section  313  Cr.P.C.   denied the  accusations.   Appellant Surjeet  Kaur  stated,  in her statement under  Section  313 Cr.P.C.,  that  she had been roped in the case in  order  to deprive  her of her share in the property.  She denied  that she had left the Ramleela ground for some time.

     The learned Sessions Judge held, on the evidence, that Sohan  Singh had met homicidal death.  He further held  that all  the  four  Appellants  had   entered  into  a  criminal conspiracy to murder Sohan Singh and that Appellants 1 and 2 had   committed  his  murder.    He,  therefore,   convicted Appellants  1  & 2 under Sections 302 and 120-B I.P.C.   and convicted  Appellants  3  & 4 under Section 120B  read  with Section  302 I.P.C.  All the accused were sentenced to  life imprisonment.    Criminal  Appeal  No.    247  of  1978  was dismissed by the impugned Judgment dated 10th March, 1997.

     Both  the Courts below have considered the evidence in detail.   Both  Courts  have held  that  the  circumstantial evidence  was  sufficient to establish the guilt of all  the Appellants  beyond a reasonable doubt.  We have perused  the judgment  of  the Courts below.  We have read the  evidence. We  do not find any infirmity or fallacy in appreciation  of the   evidence  or  the  marshalling   of  the   facts   and circumstances which unerringly lead to a conclusion of guilt beyond  a  reasonable doubt so far as Appellants 1, 2 and  4 are concerned.

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     The  evidence  of  PW4 Dr.  Rajender kumar  Gupta  who performed  the autopsy shows that Sohan Singh had  following injuries:   "1.   Bruise  with   abrasion  1/1"x1"  anterior surface of right knee joint.

     2.   Bruise  with  abrasion 1"x1/2"  on  the  anterior surface of the left knee joint.  3.  Incised wound (oblique) 3/4"x1/4"xbone  deep  on  the terminal phalynx of  the  left index  finger  on  the  dorsal aspect.   4.   Incised  wound (oblique) 1"x1/4" x bone deep on the terminal phalynx of the middle  finger  on  the dorsal aspect.   5.   Incised  wound (oblique)  1-1/4"x1/8" bone deep on the dorsal aspect of the first  and  second phalynx of the middle finger of the  left side.   6.  Multiple incised wound (oblique) in the area  of 3-1/2"x1/2"xbone  deep on the dorsal aspect of the left hand extending  from  second metacarpal bone to sixth  metacarpal bone.   7.   Multiple incised wound in the area of  2"x1"  x bone deep on the medial side of the left wrist joint cutting lower  end of ulna.  8.  Multiple incised wound (oblique) in the  area of 3"x1" x muscle deep on the posterior aspect  of left  fore  arm on the lower half tailing of towards  medial side.  9.  Incised wound (oblique) 1"x1/2" on the upper half of the fore arm on the dorsal surface tailing towards medial side.   10.   Incised  wound (oblique)  1-1/4"x1/2"  on  the posterior  aspect  of the fore arm on the upper  tailing  of towards   medial  side.   11.    Incised   wound   (oblique) 1/2"x1/4"xmuscle  deep on the latero posterior aspect of the left  arm on the deltoid region tailing of anteriorly.   12. Incised  wound  (oblique)  1/2"x1/4" muscle deep  above  the injury  No.   11.  13.  Incised wound (oblique) 1/2"x1/2"  x muscle deep above the injury no.  12.  14.  Incised wound in the  area  of (oblique) 3- 1/2"x2-1/2" x muscle deep on  the superior  surface  of  the left shoulder  joint  tailing  of towards  lateral  surface  of the upper arm.   15.   Incised wound  (oblique) 2" x 3/4" x bone deep on the left  scapular region  tailing  of towards the dorsal spine.  16.   Incised wound  (oblique)  in the area of 3"x1/2"xmuscle deep on  the infraclavicular  region  of  the left side  tailing  towards medial  side.   17.  Incised wound (oblique) in the area  of 2"x1/4"x  muscle  deep above injury No.  16.   18.   Incised wound  oblique  a  multiple in the area of  3"x2"x  deep  to trachea  cutting thyroid and cricoid cartiledge, trachea and larynx extending from below the right angle of mendible left supra clavicular region.  19.  Multiple incised wound on the dorsal  aspect of the right hand cutting through and through and  separating thumb index finger middle finger and half of the  ring finger from the little and half right hand finger. 20.   Multiple incised wound on the left side of the side of the  neck deep to cervical vertebrae cutting all the  muscle vessels  and all the nerves of the left side of the neck and posterior  side  also.  This wound extended upto right  ear. Wound  was  in the area of 11"x5" maximum breadth of on  the left  side  below left angle of the mendible.  21.   Incised wound  (oblique)  1-1/2"x1/2"  x  bone   deep  on  the  left maxillary  area  tailing of towards the nose.  22.   Incised wound  (oblique) 1-1/2" x 1/2" x bone deep on the  occipital region.

     PW4  further  says that on opening the body, he  found that  the  trachea was cut and there were fractures  of  the following bones:-

     "1.   Terminal  phalynx of the left index finger.   2. Second to fifth metacarpal bone of the left side.  3.  Lower

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end  of the ulna of the left side.  4.  Spine of the scapula of the left side.  5.  Thyroid and crab cide.  6.  Third and fourth  metacarpal  bone  of  the  right  hand.   7.Proximal phylanx  of  right ring finger.  8.Terminal phylanx  of  the right little finger.

     PW4  also  says  that all the injuries, found  on  the person  of Sohan Singh, were ante-mortem in nature and  they were  collectively  and  cumulatively   sufficient  in   the ordinary course of nature to cause death.  According to him, injuries  nos.  18 & 20 even individually were sufficient to cause  his death.  There is nothing in the cross examination of  the medical officer to doubt his expert opinion.  By his evidence,  it is amply proved that Sohan Singh had  suffered number  of incised wounds on the various parts of his  body, and that he had died of the injuries suffered by him.

     In  our  view  it  is   sufficient,  to  mention   the circumstances which unerringly point to the guilt of Accused Nos.   1, 2 and 4.  The evidence of P.W.1 (Jaswinder  Kaur), P.W.2 (Smt.  Karnal Kaur) and P.W.3 (Dalbir Singh) establish that  Appellant  No.  1 was for some time a tenant of  Mohan Singh.   This evidence establishes that Mohan Singh was  for some  years prior to his death suffering from paralysis.  It establishes  that there was an illicit relationship  between Appellant  No.  1 and Appellant No.  4.  This evidence along with  the evidence of P.W.8 (Gyanendra Singh) also establish that  Sohan Singh was objecting to the illicit  relationship between  Appellants  No.  1 and 4.  The evidence of PW1  and PW8 establishes that Appellant No.4 had also threatened Mrs. Karnal Kaur that she would see that she also became a widow. The  evidence also establishes that Appellant No.  4 got all other family members to attend the Ramleela function and had tried to keep back the son of Sohan Singh in the house along with  Sohan Singh, but could not succeed in keeping the  son at  home.  This evidence also establishes that Appellant No. 4 had left the Ramleela function and that when she was asked by  Karnal  Kaur  and others as to where she had  gone,  she stated  that she was not feeling well and had merely sat  in the  open some distance away.  Further the evidence of P.W.9 (Buta  Singh) establishes that Accused Nos.  1, 2 and 3 were seen  by  him  going  towards the house of  Sohan  Singh  at approximately 9 P.M.  on the same night.

     Apart  from  the above, the evidence of  P.W.6  (Iqbal Singh),  P.W.7  (Gurdarshan Singh) and P.W.15, S.H.O.,  i.e. the  Investigating officer, establishes that there had  been recovery of a Darat and a blood stained pant at the instance of  Appellant  No.  1 and recovery of another Darat  at  the instance of Appellant No.  2.

     In our view, both the Courts below have correctly held that   the  above  evidence   coupled  with  the  recoveries establish  beyond  a reasonable doubt that Appellant No.   1 was  (a)  for  sometime a tenant of Mohan Singh;   (b)  that there   had  been  illicit   relationship  between  him  and Appellant  No.  4 (c) that Appellants 2 and 3 used to  visit the  house of Mohan Singh when Appellant No.  7 was a tenant in  that  house.  (d) that Sohan Singh had objected  to  the illicit  relationship  between Appellant Nos.  1 and  4  (e) that  Appellant No.  4 wanted to sell off her portion of the house and Sohan Singh was objecting to it (f) that there was motive  for  the  murder  (g)  that  Appellant  No.   4  had threatened  Karnal  Kaul  that she would see  that  she  too became  a  widow  (h) that Appellant No.  4 got  all  family

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members  to attend Ramleela programme, thereby leaving Sohan Singh  alone in the house (i) that Appellant No.  4 tried to get  son  of  Sohan Singh also to stay back  but  could  not succeed  in  doing  so (j) that Appellant No.   4  left  the Ramleela  programme (k) that Appellant Nos.  1, 2 and 3 were seen  going towards the house of Sohan Singh, round about  9 p.m.  on the night of the murder (l) that on returning home, from the Ramleela programme Appellant No.  4 bolted the door of  her  room  which  allowed entry  from  outside  and  (m) Appellant No.  4 calling the daughters of Sohan Singh not to tell anybody about enmity or to name anybody.

     This  has  to be coupled with the fact that there  had been  recovery  of  a blood stained Darat and  pant  at  the instance  of  Appellant No.  1 and a blood stained Darat  at the  instance of Appellant No.  2.  There is no  explanation from  Appellant  Nos.  1 and 2 why the blood stained  Darats were  so hidden by them or how they could help discover  the same.   All these circumstances put together unerringly lead to  the conclusion that Appellants 1, 2 & 4 had conspired to murder  and  murdered Sohan Singh between the night of  15th and 16th October, 1977.

     It  is not possible to accept the submission that  the evidence  of the witnesses could not be believed.  Both  the Courts  below have set out detailed reasons why the evidence was  trustworthy  and  believable.  We fully  endorse  those findings.

     It  must  also  be noted that in her  statement  under Section  313  Cr.P.C.  Appellant No.  4 denies that she  had left  the  Ramleela  function.  The  evidence  of  witnesses clearly   establishes  that  she   had  left  the   Ramleela programme.

     In  the case of Swapan Patra v.  State of West  Bengal [(1999)  9  SCC  242], it has been held that it  is  a  well settled  principle 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  same  principle is reiterated in the case of  State  of Maharashtra  v.  Suresh [(2000) 1 SCC 471].  In this case it has  been  held that a false answer offered by  the  accused when  his attention was drawn to a circumstance renders that circumstance capable of inculpating him.  It is held that in such  a  situation  like  this a false answer  can  also  be counted  as  providing "a missing link" for  completing  the chain.

     The  false  answer given by Appellant No.   4  denying that  she  had  left  the Ramleela  programme  provides  the additional link or a missing link in completing the chain of circumstances.

     In  our  view  it is established beyond  a  reasonable doubt  that  Accused  nos.  1, 2 and 4 had  entered  into  a conspiracy and had murdered Sohan Singh.

     However,  so  far as Appellant No.  3, Uttam Chand  is concerned,  the only evidence against him is the evidence of P.W.9.   PW 9 has deposed that he had seen him going,  along with  Appellant  Nos.   1 and 2, towards the  house  of  the deceased.   In our view, this by itself is not sufficient to establish  the  guilt.   The  only  other  evidence  against

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Appellant  No.  3 is the evidence of P.W.5 (Darshan  Singh). Both  the Courts below have accepted the evidence of  P.W.5. We  have read the evidence of P.W.5.  We have also seen  the contradictory  statement which he had made in his  statement to  the  police.   In  our   view,  the  contradictions  are substantial.   They lead to the conclusion that the evidence of  P.W.5  cannot  be relied upon.  In the absence  of  this evidence  there  is  no circumstance or  proof  which  links Appellant  No.   3  to the conspiracy or  the  murder.   We, therefore,  set  aside  the conviction of Appellant  No.   3 Uttam  Chand  under  Section  120-B read  with  Section  302 I.P.C..   He  is acquitted of all the charges.  He shall  be forthwith  set  at  liberty, unless required in  some  other case.

     The  Appeal against the conviction of Appellant No.  1 -  Kuldeep  Singh,  Appellant no.  2 -  Mahendra  Singh  and Appellant  No.  4 - Surjeet Kaur stands dismissed.  They are sentenced  to undergo imprisonment of life.  The bail  bonds shall  stand cancelled.  We direct Appellants 1, 2 and 4  to surrender.  On their failure to do so we direct the Sessions Judge,  Sri Ganganagar to take immediate and necessary steps to  put  the  Accused in jail for undergoing  the  sentences imposed on them.