POORIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the ORDER dated August 24, 1984, passed by the Sessions Judge, Sirohi, by which the learned Sessions Judge convicted and sentenced the accusedappellant Pooriya for the offence under Section 302 I.P.C.

(2.) The incident which led to the prosecution of the accused-appellant Pooriya, took place on September 24, 1982, when Smt Loongi W/o Pooriya was murdered by the accused-appellant in his Jhumpa. According to the prosecution, the incident was witnessed by Miss Seeta the daughter of the accused who informed P.W. 4 Bhawa and P.W 5 Virka. P.W. 4 Bhawa and P.W. 5 Virka, thereafter, went to the house of P.W. 7 Thakur Dalpat Singh, who advised them to lodge a report at the police station. P.W. 4 Bhawa thereafter went to Police Station, Barloot, while P.W. 5 Virka remained near the dead body. The prosecution case further is that P.W. 6 Kasiya was, also there when Miss Seeta informed him regarding the incident, but who, later on, went away and the name of P.W. 6 Kasiya does not find place in the First Information Report. The prosecution, in support of its case, examined ten witnesses. The prosecution evidence consists of the evidence of P.W. 1 Prem Singh, who was working in the Office of the Superintendent of Police, Sirohi, as M.O.B. and who took photographs of the dead body of deceased Smt. Loongi and the place of the incident. P.W. 2 Mohan Singh was the Head Constable Police, posted at the Police Station, Barloot, with whom the five packets were deposited on 25.9.1982, who after making entry in the Malkhana Register, kept them in the malkhana and handed-over these articles to Swaroop Singh (P.W. 9), Police Constable, malkhana Incharge, posted at the Office of the Superintendent of Police, Sirohi. P.W. 3 Bahadur Singh was the police constable, who took the five sealed packets for F.S.L. examination. P.W. 4 Bhawa is the uncle of the accused-appellant to whom Miss Seeta informed that her mother has been killed, but who killed her was not narrated by her to him. After receiving the information from Miss Seeta, they went to the house of the accused along with Miss Seeta and found Kasiya standing there and they informed Kasiya that PooriyaTs wife has been killed. Thereafter Kasiya asked them to go to the Thakur for informing him regarding the incident. At that time Pooriya was standing in the lane and his clothes and the Kulhari were found stained with blood. Kasiya thereafter went away and he along with P.W. 5 Virka went to ThakurTs house and informed him about the incident, whereupon the Thakur told them to go to the Police Station. He, thereafter, went to the Police Station and Virka (P.W. 5) remained present near the dead body. He is, also a witness to the First Information Report (Ex. P.W. 17) as well as the site plan Ex. P. 19 site inspection memo Ex. P. 20. Furd Surat Haal Lash Ex. P. 21 and the Panchnama Lash Ex. P. 22. He has, also, stated that the accused and the deceased used to quarrel each other. P.W. 5 Virka is the brother of the accused, who has stated that on the day of the incident, he was at his well when Miss Seeta came there weeping and informed them that Baa, has killed her Bai. Baa according to Miss Seeta, means the present accused appellant. He and Bhawa thereafter went to the Jhumpa. At that time the accused, armed with Kulhari, was standing there. They found Smt. Loongi bleeding from the injury inflicted by the accused on her head. When they came out of the Jhumpa, Kasiya was standing there, who advised them to go and inform Thakur Dalpat Singh. They went to the house of Thakur Dalpat Singh and Thakur Dalpat Singh advised them to go and lodge the report at the Police Station. Thereafter, Bhawaji went to the Police Station and lodged the report. He remained there to keep a watch on the accused. P.W. 6 Kasiya has stated that he was going on his cart to his filed. When he reached in front of the house of Pooriya he found Pooriya, carrying a Kulhari. His clothes and the Kulhari were having blood stains. He enquired from Pooriya, what has happened, upon which he told that he should go to his way. Thereafter Bhawaji and Virka met him and told him that Smt. Loongi has been killed by Pooriya and what should be done now, whereupon he advised them to go to Thakur and, thereafter, he went to his field. P.W. 7 Dalpat Singh is the Thakur of the village, who advised Bhawa and Kasiya to lodge the report. P.W. 8 Ramjan Khan is the investigating officer, who investigated the matter and made certain recoveries and filed the challan. P.W. 9 Swaroop Singh was working in the office of the Superintendent of Police, Sirohi, with whom the blood stained articles remained since 6.10.1982 to 4.11.1982, when these articles were taken by P.W.3 Bahadur Singh to Jaipur for F.S.L. Examination. P.W. 10 Dr. Rikhab Loonkar conducted the post-mortem on the dead body of Smt. Loongi. According to P.W. 10 Dr. Rikhab Loonkar, the cause of death of Smt. Loongi was/due to crushing of the brain and the injury found on the person of the deceased was sufficient to cause death and the injury can be caused by the axe Article 1.

(3.) The prosecution case mainly rests upon the evidence of P.W. 4 Bhawa, P.W. 5 Virka and P.W. 6 Kasiya and the recoveries made from the accused. So far as the recoveries of blood stained shirt and the Kulhari are concerned, they are not of any assistance to, the prosecution because though they were found blood-stained, but their blood group could not be known because the blood was not found sufficient for blood-group test. There remains, now only the recovery of the Dhoti of the accused, on which human blood was found, which was of Group A. This blood group tallies with the blood group, which was found on the clothes of the deceased. Though the blood found on the Dhoti of the accused matched with the blood found on the clothes of the deceased and raises a strong suspicion against the accused, but the prosecution has not proved by positive evidence that the blood group of the accused was not that of Group A which was found on his Dhoti. The probability of the accused-appellant having the same blood-group, cannot be ruled-out, particularly when his blood sample was not taken and examined. This circumstance, therefore, cannot conclusively establish the guilt of the accused in the present case. For proving the case by a circumstantial evidence, it is necessary for the prosecution to establish that the circumstance relied upon by the prosecution should unmistakably point to one and the one conclusion that it was the accused and the accused alone who committed the crime and none else. The circumstances, thus, relied upon by the prosecution, are incompatible with the innocence of the appellant in so far as the murder of Smt. Loongi is concerned. The circumstances are capable of being explained.