S. S. BYAS, J. -
(1.)ACCUSED Makhan Lai Masih was convicted under sec. 302, I. P. C. and sentenced to imprisonment for life by the learned Sessions Judge, Bhilwara by his judgment dated September 21, 1979. He has come up in appeal to challenge his conviction and sentence. The accused has been found guilty for committing the murder of his wife Smt. Soni.
(2.)BRIEFLY stated the case set-up by the prosecution is that the accused is a resident of village Berana P. S. Asind district Bhilwara. He was originally a Hindu belonging to the Scheduled Caste Balai. He renounced Hinduism and ambraced Christianity in 1970. He wanted to convert her to Christianity but Smt. Soni did not oblige him despite his persistent afforts. It is suggested that it sowed the seeds of discordance between them. The Christian Mission gave him a job at Rudki in Uttar Pradesh. He started living there but used to come to his house at Berana after an interval of two or three months. Three children were born to Smt. Soni from him out of whom Kumari Prem is the eldest. She was nearly 9 years in age at the time of the commission of offence (December 1978 ). The accused came from Rudki in December 1978 on the occasion of Christmas Day. In the evening of December 23, 1978 the accused, the victim Smt. Soni, P. W 3 Kumari Prem and other children after taking their meals went to sleep. They slept together in a room of their house shown by mark '2' in the site plan Ex. P. 3. In the early hours of December 24, 1978 the accused awoke his children, left the house and told PW 1 Ku. Prem that her mother had gone to village Babaji-ki-Mandi. The accused first took his children to Babaji-ki-mandi and from there to Asind. At Asind he went to the house of PW 12 Hari Narain who is also a Christian and requested him to keep his children. He also told him that his wife wanted to kill him and bis children and he had brought the children to him with great difficulty. He had brought them so that they might remain Christian. He also told him that his wife wanted the children to remain as Hindus. Hari Narain refused to keep the children. From Asind, the accused took the children to Beawar on the same day and kept them with some Christian family. Smt. Soni used to wear silver Kariyas (Article 1) in her feet. The accused pawned these Kariyas to PW 5 Bhanwar Lal for a sum of Rs. 300/ -. From Beawar he went to Ajmer and returned on December 25, 1978. He picked up his children from Beawar and brought them to Asind. At Asind he left Kumari Prem with her maternal uncle. On the same day at about 4 00 P. M. he presented a written report Ex. P. 11 to the Station House Officer Police Station, Asind. In Ex. P. 11 it was mentioned that his wife Smt. Soni was missing since the evening of December 23, 1978 and her whereabouts could not be ascertained despite all afforts He requested for police help to search her out. The Station House Officer Jabbersingh (PW 13) deputed the Head Constable Abid Hussain (PW 6) and two other constables to accompany the accused to his village Berana and make efforts to search out the missing lady Smt. Soni. The Head Constable and the accused alongwith some police constables reached Berana in the evening of December 25, 1978 and stayed at the house of Mangi Lal (PW 4 ). It is alleged that in the morning of December 26, 1978 the accused told PW 4 Mangi Lal and his brother Udai Lal (PW 1) that he had killed his wife by throttling her and that he had put her deadbody in the new room of his house. PW 1 Udai Lal and PW 4 Mangi Lal informed the Head Constable Abid Hussain (PW 6) accordingly. Thereupon PW 6 Abid Hussain asked the accused about his wife and he (accused) deposed the same facts before him also. The Head Constable Abid Hussain took PW 1 Udai Lal, PW 5 Mangi Lal and the accused to his house. The house was found locked from out-side. The accused opened the lock with the key he was having with him. The Head Constable and the party found the victim's deadbody lying in the room shown by mark '2' in site plan Ex. P. 3. The Head Constable found it a case of murder and wrote his report on the back of Ex. P. 11. He sent it to Police Station, Asind. A case under section 302, I. P. C. was thereupon registered at about 9. 00 A. M. on December 26, 1978. The investigation was taken up by the Station House Officer Jabber Singh (PW 13 ). He arrived on the spot and prepared the inquest report of the victim's deadbody. He also prepared the site plan. The post-mortem examination of the Victim's dead-body was conducted at about 1. 30 P. M. on December 26. 1978 by PW 10 Dr. Dhanraj Panwar, the then Medical Officer Incharge, Primary Health Centre, Asind. He noticed the following injuries: - 1. Bruise 2" x 1-1/2" over right side of nose and cheek blue in colour. 2. Abrasion 2" x 3/4" horisontally over right side of the neck upper third. 3. Abrasion 4" x 2" over back side left lumber region. 4. Abrasion 1" x \" over front side of left shoulder obliquely. 5. Abrasion \" x 1/3" over left side of neck obliquely in the middle. 6. Blister 1/2" x 1/2" superficial blister present over right lumber region back side due to decomposition. Foul smell present. Neck was swollen. On incision there was extravasation of blood in subcutaneous tissue seen on upper third of neck on both the sides. Both the lids were partially closed and congested and pupils on both side were found dialated. Lips and tongue swollen. Tongue bite of J" seen over right margin. Sypothenar and thenar muscles of left hand enter-up by some rats or insects. . . . . Muscles Bones and joints. The muscles of neck aroud truchen and upper third of neck dark in colour lateration was seen on neck muscles. Extravasion of blood in subcutaneous tissue present. There was a fracture of hycid-bone in the neck. " All the injuries were ante mortem. The doctor was of the opinion that the cause of death of Smt. Soni was asphyxis due to strangulation. The post mortem report prepared by him is Ex. P 13. The accused was arrested at about 4. 30 P. M. on December 26, 1978. In consequence of the information furnished by him on December 27, 1978, silver Kariyas (Article 1) were recovered from the shop of PW 5 Bhanwar Lal at Beawar. The silver Kariyas were put to test identification and they were correctly identified by PW 3 Kumari Prem as belonging to her mother. The clothes of the deceased-victim which she were found stained with blood, were also seized and sealed. On Chemical Examination human blood was found on them. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Gulabpura who in his turn committed the case for trial to the Court of Sessions. The Learned Sessions Judge framed a charge under section 302, I. P. C. against the accused, to which he pleaded not guilty and faced the trial. In his statement under section 313, Cr. P. C. he put forward the defence of complete denial and stated that he has been falsely implicated. In support of its case the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined two witnesses. The evidence addued in defence was to the effect that the relations between the accused and his wife were cordial and sweet. On the conclusion of trial the learned Sessions Jugge held the charge duly brought home to the accused. He was consequently convicted and sentenced as mentioned at the very out set.
Before proceeding further we may point out that the cause of death of Smt. Soni was not challenged before us by the learned counsel for the accused. We have carefully gone through the testimony of Dr. Dhanraj Panwar (PW 10 ). We find no good and cogent reasons to disbelieve his opinion that the cause of death of Smt. Soni was asphyxia due to strangulation. As such the death of Smt. Soni was not natural but homicidal.
Admittedly there is no direct evidence about the occurrence. The accused was convicted on various pieces of circumstantial evidences. For ease and convenience it would be proper to categorise the various pieces of circumstantial evidence adduced by the prosecution. It consists of the following sets: - 1) The deceased-victim's body was lying in a room of the accused's house. 2) The victim, the assused and the children including PW 3 Ku. Prem slept together in that room in the evening of December 23, 1978 and the victim was not seen alive thereafter. 3) He (accused) took his children after mid-night in the early hours on December 24, 1978 first to Babaji-ki-Mandi, from there to Asind and then to Beawar. He brought them back on December 25, 1978 and left Ku. Prem with her maternal-uncle. 4) Extra judicial confession made before PW 1 Udai Lal, PW 4 Mangi Lal and others. 5) The accused made a statement before Hari Narain (PW 12) that his wife (victim) had gone to hell. He requested him to keep his children with him. 6) The accused lodged report Ex. P 11 with false allegations that his wife was missing since the evening of December 23, 1978. He remained silent upto December 25, 1978. 7) He (accused) took the police Head Constable and other witnesses to his house and opened the lock of the room with the key he was having with him. In that room the victim's deadbody was found lying. 8) He took his children under the false pretext that their mother (victim) had gone to Babaji ki-Mandi. 9) The recovery of silver Kariyas (Art. 1) in consequence of his information. The victim used to wear these Kariyas in her feet, and 10) The accused had a strong motive. The victim, though his wife, remained Hindu, did not embrace Christianity and refused to oblige the accused who wanted her conversion from Hinduism to Christianity.
The learned Sessions Judge disbelieved the evidence relating to (i) extra judicial confession and (ii) the accused's opening the lock of the room in which the victim's deadbody was lying with the key he was having with him. The extra judicial confession was held not proved for the simple reason that PW 1 Udai Lal and PW 4 Mangi Lal to whom it was alleged to have been made turned hostile and refused to state that the accused confessed before them to have killed his wife. The evidence relating to the accused's opening the room with his key was disbelieved because this fact was not mentioned by the Head Constable of Police Abid Hussain (PW 6) in his report Ex. P. 11 part C to D, which he endoresed on the back of Ex. P. 11. The remaining eight other sets of circumstantial evidence were held proved. According to the learned Sessions Judge they lead to the irresistable conclusion that Smt. Soni was done to death by the accused and none else.
We have heard Shri Doonger Singh learned counsel appearing for the accused-appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
(3.)IN assailing the conviction it was vehemently contended by Shri Doonger Singh that the various pieces of circumstantial evidence did not stand proved and even if taken as proved, were not sufficient to give rise to a presumption that Smt. Soni was finished by the accused and none else. It was argued that artificial inferences were drawn from the various links of the circumstantial evidence. The inferences drawn are neither plausible nor logical. IN reply, the learned Public Prosecutor supported the findings of the Court below and submitted that it can be safely inferred from the various sets of evidence that the accused and the accused alone was the perpetrator of the crime. We have bestowed our thoughtful consideration to the respective submissions. We propose to examine each set of evidence and to see whether taken together they are sufficient to raise inferences that the victim was done to death by the accused.
There is direct evidence of PW6 Abid Hussain, Head Constable Police, on the first point. He stated that in the morning on December 26, 1978 he, his fellow constables accompanied with PW 1 Udai Lal and the accused went to the house of accused. The accused opened the lock of his house. In a room of the house the victim's deadbody was lying near the wall. He has mentioned this fact in his report C to D on the back of Ex. P. 11. Though PW 1 Udai Lal did not support the prosecution on this point, the testimony of PW 6 Abid Hussain cannot be dismissed on that account. The Investigating Officer Jobbar Singh (PW 13) later on arrived on the spot. He prepared the inquest report Ex. P. 4. In Ex. P. 4 it has been clearly mentioned that the victim's deadbody was lying in a room of the accused's house. PW 1 Udai Lal who is a Motbir of the inquest report Ex. P. 4 though hostile to the prosecution, admitted that when the Investigating Officer arrived in the village, he was called as a Motbir. The victim's deadbody was lying in a room of the accused's house. His signatures A to B are there on Ex. P. 4. There is, thus, overwhelming evidence that the victim's deadbody was found lying in a room of accused's house.
There is again overwhelming evidence to show that the victim, the accused and the children including PW 3 Kumari Prem slept together in the room in the evening of December 23, 1978 and the victim was not seen alive thereafter. PW 3 Ku. Prem is the daughter of the accused. She was nearly 9 years old when she was examined in the court below. As she was found of tender age, her competency to testify was judged by preliminary examination. On preliminary examination she was found competent to testify. She deposed that her father (the accused) used to come from Rudki after some interval to village Berana. In the preceding night of the day of occurrence she, her mother, her father and her infant brother slept in a room. When her father got her awoke in the early hours, she did not find her mother there in that room. Her father told her that her mother had gone to village Babaji ki Mandi. She was cross-examined but nothing could be elicited from her to make her testimony unworthy of credence on this point. After all she is the daughter of the accused as well as of the deceased-victim We are unable to conceive that she would falsely depose against her own father for no apparent reasons. More over what she testified appears quite natural and probable. PW 11 Devi Lal is the real brother of the accused. He also deposed that a few days before the occurrence the accused came from Rudki and lived in his house with his wife and children. One day he found the accused's house locked. In the preceding day the accused, the victim and their children were there at the house of the accused. He was also cross-examined but with no discredit to what he testified. He is the real brother of the accused and we are unable to imagine that he would falsely depose against his real brother. It, therefore, stands proved that the accused came from Rudki a few days before the occurrence. In the evening of December 23, 1978 he, the deceased-victim, Kumari Prem (PW 3) and the other two infant children slept in a room of the accused's house and thereafter the victim was not seen alive.