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Rajasthan High Court · body

2001 DIGILAW 1282 (RAJ)

Magne Khan v. State of Rajasthan

2001-08-16

JAGAT SINGH, N.N.MATHUR

body2001
Honble MATHUR, J.–The appellant was put to trial on the charge of murder of his wife Mst.Antri and daughter baby Jarain aged 3 years. The learned Additional Sessions Judge, Barmer by judgment dated 22.12.1999 has convicted the appellant for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-; in default of payment to further undergo one years rigorous imprisonment. (2). Briefly stated the prosecution case is that the appellant Mange Khan, a resident of village Sohara was married to deceased Mst.Antri about 14 years back. For last four years he was residing in the village of his in laws namely Loharva. Out of the said wedlock, deceased Antri bore two male and one female child. Two days prior to the date of incident, Mange Khan arrived in his village Sohara from his in laws house along with his wife and children. A day before the incident, the appellant Mange Khan along with his wife Mst.Antri and daughter baby Jarain aged 3 years went to the `that of Gogaji (a religious place). He left behind his both the sons. It is alleged that at the `than of Gogaji the appellant abused and reprimanded his deceased wife for leading a immoral life. He asked her to take oath before `Gogaji that henceforth she would lead a chaste life. He also threatened her that if she fails to maintain the chastity in life she would be killed. PW-4 Moolaram pacified them. It is alleged that in the evening the appellant visited the shop of PW-5 Nainaram along with his wife and female child. It is also alleged that PW-2 Mukna Bheel informed PW-1 Kachhab Khan in the intervening night of 2nd and 3.03.1998 to the effect that Mange Khan has confessed before him that he has killed his wife and daughter as he suspected her fidelity. Thereafter, the uncle of appellant namely PW-1 Kachhab Khan along with PW-2 Mukna Bheel went in search of the wife and children of Mange Khan. They found the dead bodies of mst. Antri and baby jarain in sand dunes in village Pora. PW-1 Kachhab Khan submitted a written First Information Report of the incident at Police Station, Gida on 3.3.1998. The police immediately swing into action, reached on the spot, prepared the site plan and the inquest reports of dead body of Mst.Antri and baby Jarain. Antri and baby jarain in sand dunes in village Pora. PW-1 Kachhab Khan submitted a written First Information Report of the incident at Police Station, Gida on 3.3.1998. The police immediately swing into action, reached on the spot, prepared the site plan and the inquest reports of dead body of Mst.Antri and baby Jarain. Police arranged the autopsy of the dead bodies. The appellant was apprehended vide Exhibit P-2. During the investigation, police collected the necessary material and laid charge sheet against the appellant for offence under Section 302 IPC. (3). The appellant pleaded not guilty to the charge levelled against him and claimed trial. The prosecution in support of the case examined 14 witnesses and produced certain documents. The appellant in his statement under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. The trial Court relying on the circumstantial evidence, recorded the finding of guilt against the appellant and, therefore, convicted the appellant under Section 302 IPC and sentenced him in the manner noticed above. (4). Miss Sangeeta Elhence, learned Amicus Curiae has defended the accused appellant stoutly. The learned counsel has made serious endeavour to dig out holes on the edifice of the prosecution case for which she has read the entire evidence. She has dealt with each circumstance and pointed out that they have been neither established by cogent evidence, nor they are of conclusive nature. It will be useful to recast the circumstances relied upon by the prosecution as follows:- (1) The appellant arrived in village Sohara from village Loharva along with his wife and three children. On the next day he left the house along with his deceased wife and daughter. Thereafter, mst.Antri and baby Jarain were not seen alive. Thus, both the deceased persons were last seen in the company of appellant. (2) The dead bodies of Mst.Antri and Jarain were found in sand dunes on 3.3.1998. Although, the wife and daughter were murdered, the appellant did not go to see them and remained away from the village till he was arrested on the next day. (3) That blood stains were found on the cloths of the appellant at the time of his arrest. He has not given any explanation as to the presence of blood stains on his cloths. (3) That blood stains were found on the cloths of the appellant at the time of his arrest. He has not given any explanation as to the presence of blood stains on his cloths. (4) On the disclosure statement made by the appellant a blood stained chhuri (knife) was recovered and seized at the instance of the appellant concealed in a shrub. (5) Extra judicial confession made by the appellant before PW-2 Muknaram. (6) There was motive, for committing murder as the appellant suspected the fidelity of his wife. (5). The standard of proof required to convict a person on circumstantial evidence is now well settled by catena of decisions of the Apex Court and this Court. The prosecution is required to establish each circumstance firmly by cogent evidence. Each circumstance taken together should form a chain pointing towards the guilty of the accused and cumulative effect of the circumstance must lead to no other inference but of the guilt of the accused. The question for consideration arises whether the aforementioned circumstances have been established by cogent evidence and they are of conclusive nature and further consistent only with the hypothesis of the guilt of the accused and the same are not capable of being explained by any other hypothesis, except the guilt of the appellant which if taken cumulatively together lead to only irresistible conclusion that appellant alone is the perpetrator of the crime. (6). PW-1 Kachhab Khan is the uncle of the appellant. He has stated that the appellant Mange Khan had married with mst. Antri of village Loharva about 14 years back. He used to reside with his wife and three children at his in laws house in village Loharva. He along with his children arrived in the village Sohara two days prior to the date of incident. He went to the `Than of Gogaji along with his wife and younger daughter. He heard from PW-2 Muknaram that Mange Khan has killed his wife and female child. Thereafter he went in search of the wife and daughter of Mange Khan. Two dead bodies were found in the sand dunes. There is no cross examination worth the name about the visit of Mange Khan with his children to the village Sohara. Thereafter, the deceased Antri and baby Jarain were not seen alive. On the next day, the dead bodies were found in the sand dunes. Two dead bodies were found in the sand dunes. There is no cross examination worth the name about the visit of Mange Khan with his children to the village Sohara. Thereafter, the deceased Antri and baby Jarain were not seen alive. On the next day, the dead bodies were found in the sand dunes. There is no reason to disbelieve the statement of PW-1 Kachhab Khan. Thus, the prosecution has succeeded in establishing first circumstance by cogent evidence that deceased Antri and Baby Jarain were last seen in the company of the appellant Mange Khan. (7). As regards the second circumstance, PW-1 Kachhab Khan has stated that on 3.3.1998 the dead bodies of Mst.Antri and Baby Jarain were found in the sand dunes. PW-13 Lakh Singh is the Investigating Officer. He has stated that on receiving the information Exhibit P-1, he went to the spot and found the dead bodies of Mst.Antri and Baby Jarain. He prepared the site plan Exhibit P-15. He also prepared the inquest report Exhibit P-18. The post-mortem of both the bodies were conducted on the same day vide Exhibit P-22 and P-23. Two dead bodies were handed over to PW-1 Kachhab Khan vide Exhibit P-19. The dead bodies were buried on 3.3.1998 in absence of the appellant. He was arrested on 4.3.1998 vide Exhibit P-4. If the murder was committed by third person there was no reason for the appellant to remain away from the village and not to attend the burial. (8). The appellant was arrested vide Exhibit P-4. At the time of arrest he was wearing pant and shirt. Blood stains were found on pant and shirt. Therefore, pant and shirt were seized, sealed and packed on the spot vide Ex/P-7. The packet was handed over for deposition in the malkhana. It was sent to the Forensic Science Laboratory for chemical examination. We are not referring to the link evidence s the defence has not challenged the same. The F.S.L. Report Exhibit P-34 shows that blood spots on the pant and shirt in packet `H were found to be of human origin. The cloths of the deceased were also seized on the spot vide Exhibits P-20 and P-21. They were seized, sealed and packet. They were also sent to the Forensic Science Laboratory. The F.S.L. Report Exhibit P-34 shows that blood spots on the pant and shirt in packet `H were found to be of human origin. The cloths of the deceased were also seized on the spot vide Exhibits P-20 and P-21. They were seized, sealed and packet. They were also sent to the Forensic Science Laboratory. The F.S.L. Report Exhibit P-34 shows that the blood on the ghaghara, Kurti, Kanchali, odana and ghagari (frock) was found to be of human original. The Serologist also found that the presence of blood on the cloths of the deceased and that of the appellant were of same group i.e., of group `B. Thus, the prosecution has succeeded in establishing the third circumstance by cogent evidence. The circumstance is of conclusive nature as there is no explanation of the appellant as to the presence of human blood on his cloths. (9). PW-13 Lakh Singh stated that appellant was arrested on 4.3.1998 vide Ex/P-4. He made a disclosure statement Exhibit P-34 leading to recovery of knife vide Ex.P-5. The recovery was made in presence of PW-5 Nainaram and PW-6 Gomaram. The knife was seized, sealed and packed on the spot. It was deposited in the malkhana. Thereafter, it was sent to the Forensic Science Laboratory for chemical examination. The prosecution has produced the link evidence but it is not necessary to deal with same as the defence has not challenged it. The F.S.L. Report Exhibit P-34 shows that the blood stains on the knife have been found of human origin. The blood on knife is of the same group which is present on the cloths of deceased as well as of appellant. (10). The learned counsel has criticised the recovery on the ground that it has been made from an open place. It is submitted that PW-13 Lakh Singh has admitted in the cross-examination that knife has been recovered from the open place. The learned counsel relying on the decision of the Apex Court in Akhilesh Hajam vs. State of Bihar (1) submitted that a recovery from an ``open place cannot said to be a recovery on the basis of disclosure statement. We have gone through the decision of the Apex Court in Akhilesh Hajams case. The learned counsel relying on the decision of the Apex Court in Akhilesh Hajam vs. State of Bihar (1) submitted that a recovery from an ``open place cannot said to be a recovery on the basis of disclosure statement. We have gone through the decision of the Apex Court in Akhilesh Hajams case. In the said case the iron angle was not found concealed beneath the fuel wood in the room as per the disclosure statement, but it was found in the open verandah accessible to all. In the instant case, the knife was concealed in a shrub. It was the appellant who had the special knowledge of the presence of knife in the shrub. The admission of the Investigating Officer that knife was recovered from the open place will not affect the recovery under Section 27 of the Evidence act as no object can be recovered which are open and accessible to others if the articles was buried on the main roadside or it is concealed beneath a shrub the article would remain out of the visibility of others in normal circumstances. It is only the person who hide it alone knows where it is until he discloses the fact to any other person. Thus, the Apex Court in State of Himachal Pradesh vs. Jeet Singh (2) has laid down the test that whether the place was ordinarily visible to other or not? If the answer is negative then it is immaterial that the concealed place is accessible to other. The observation of the Apex Court in extracted as follows:- ``There is nothing in Sec.27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ``open or accessible to others. It is a fallacious notion that when recovery of any incriminating articles was made from a place which is open or accessible to others it would vitiate the evidence u/S.27 of the Evidence act. Any object can be con- cealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. For example, if the article is buried on the main roadside or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, when it is immaterial that the concealed place is accessible to others. (11). Thus, the first criticism with respect to the recovery is rejected. It is next contended that PW-3 Tilaram and PW-6 Gomaram have not supported the recovery. It is now well settled that if the evidence of Investigating Officer who recovered the material evidence is convincing and evidence of recovery need not be rejected on the ground that the seizure witnesses did not support the prosecution version. Thus, the second submission with respect to the recovery is also rejected. Accordingly, we hold that the prosecution has established the fourth circumstance by cogent evidence. The circumstance is of conclusive nature. (12). In order to establish the fifth circumstance i.e., extra judicial confession of the guilt, the prosecution has examined PW-2 Muknaram. He has stated that in the night of fateful day the appellant came to his dhani and made a confession that he has killed his wife and daughter by inflicting knife injuries. He also stated that he has killed them on `gochar land near their village. He further stated that he reported about the incident to PW-1 Kachhab Khan in morning. He however, denied the fact that he accompanied PW-1 Kachhab Khan to the police station. In the cross-examination he admitted that he did not identify the person who made confession before him. The Public Prosecutor at the stage of re-examination declared him hostile. Thus, in our opinion, this circumstance has not been established by cogent evidence. (13). As regards the motive, PW-7 Deva has stated that his sister Mst.Antri was married to the appellant. For last four years he was residing with Mst.Antri in village Loharva. He used to threat his sister i.e., appellants wife to kill her. Thus, in our opinion, this circumstance has not been established by cogent evidence. (13). As regards the motive, PW-7 Deva has stated that his sister Mst.Antri was married to the appellant. For last four years he was residing with Mst.Antri in village Loharva. He used to threat his sister i.e., appellants wife to kill her. The prosecution has produced two more witnesses PW-2 Muknaram and PW-4 Mularam but both of them have turned hostile, therefore, the motive has also not been established by cogent evidence. (14). That even if evidence of extra judicial confession is eschewed the prosecution has established the circumstance of last seen, the recovery of weapon of offence i.e., chhuri (knife), presence of blood on the cloths of accused more particularly the presence of blood on the cloths of deceased and accused knife of being the same group and the conduct of appellant not attending the burial leads to irresistible conclusion that it was the appellant and the appellant alone who committed the murder of his wife Mst.Antri and daughter Jarain. (15). In the background of material available on record and having considered the same, we are satisfied that the prosecution has satisfactorily established chain of circumstantial evidence against the appellant as regard his involvement in the crime. The trial Court has rightly convicted the appellant for offence under Section 302 IPC for the charge of murder of his wife Mst.Antri and daughter baby Jarain. (16). Consequently, we find no merit in this appeal and the same is dismissed. The appellant is in jail. He will serve out the remaining part of the sentence.