R. S. VERMA, J. - (1.) LEARNED Addl. Sessions Judge, Bikaner, by his judgment dated 21. 10. 87 in Sessions case No. 16/86 has convicted Mahavir of an offence u/s 302 I. P. C. and has sentenced him to undergo life imprisonment and to pay a fine of Rs. 500/- and in default to undergo further rigorous imprisonment of one year. Aggrieved, he has come in appeal.
(2.) BRIEFLY stated, the prosecution story is that deceased Radha and PW 7 Mira are sisters, being daughters of PW 2 Babu Lal and PW 8 Mohini. Appellant Mahavir is son of Mohan Lal and his wife Mohini (not the former Mohini ). Mohan Lal has two more sons viz. Chaturbhuj and Hanuman. Deceased Smt. Radha was married to appellant Mahavir some seven years prior to the incident. Radha's sister PW 7 Mira was married to Hanuman aforesaid, the brother of the appellant. Smt. Radha used to reside with her husband separately from her in-laws in a rented house at Idgah-Ki-Bari in the town of Bikaner while Mohanlal, his wife Mohini, Hanuman and Smt. Radha used to reside in a separate house at some distance. The prosecution case is that Mahavir and his brother Hanuman used to demand a sum of Rs. 5000/- from PW 2 Babu Lal, father of deceased Smt. Radha and PW 7 Smt. Mira. Smt. Radha used to complain about this to her father as well as to her mother Mohini PW 8 as also to her other relations PW 3 Hanuman, PW 4 Shanker Lal and PW 5 Shiv Kumar. The prosecution story, further, is that on 22. 11. 82, appellant Mahavir gave some beating to Smt. Radha with the result that she sustained some sort of injury in her left ear. On this, she came to the house of her father Babu Lal in the morning of 23. 11. 82 and complained about this beating and further reported that Mahavir was demanding a sum of Rs. 5000/- from her. Babu Lal along with his wife Mohini and deceased Smt. Radha went to P. B. M. Hospital, Bikaner, where injury of Smt. Radha was got examined by Dr. Tejendra Singh, who found that the left ear of Smt. Radha was suffering from chronic suppurative otitis and her ear drum had an old perforation. Dr. Tejendra Singh prepared an out door patient prescription Ex. P1 in this regard. Babu Lal, thereafter, went to his office as usual. In the evening, after returning from office, he escorted Smt. Radha to the house of her husband Mahavir. Appellant Mahavir was then present at his house. He left Smt. Radha with Mahavir and came back and reported this fact to his wife Smt. Mohini PW 8. The prosecution story, further, is that on the same evening i. e. on 23. 11. 82, elder brother of Mahavir, Chaturbhuj, father of Mahavir Mohanlal and mother of Mahavir Smt. Mohini, went to the house of appellant. They asked Mira to follow them to the house of Mahavir. On this, Mira also went to the house of Mahavir. When she reached the house of Mahavir, the door of the house was closed. She knocked at the door at which father of Mahavrr Shri Mohan Lal opened the door and Mira went inside. Mohan, thereafter, barred the door from within. Mira, then, saw that Mahavir was beating Radha with fists while Chaturbhuj was pressing the chest of Smt. Radha by his knee and Smt. Mohini, mother of appellant Mahavir was holding Smt. Radha by her feet. Soon after Smt. Mohini exclaimed that Smt. Radha's voice had become feeble and, therefore, Mahavir and his brother Chaturbhuj may put Smt. Radha on the cot. At this both of them put Smt. Radha on the cot and tied her hand and feet by a plastic cord. Mahavir then poured Smt. Radha with kerosene oil from a bottle. Chaturbhuj handed over a match box to Mahavir and Mahavir lit a match stick and set Smt. Radha to fire. It appears that Smt. Radha had an infant baby aged about l 1/2 years, who also received some minor burns in this incident. The prosecution case is that thereafter, Mira was given beating by Mahavir, Chaturbhuj, Mohan and Smt. Mohini with the result that Mira became unconscious. When she regained consciousness, she found that she had been confined in a "ghumaria" (basement) in the house of her father-in-law Mohan. She was not allowed to come out of the "ghumaria" by sisters of the accused, namely, Smt. Bayal and Smt. Pana for a period of 12 days. The prosecution story is that in the meanwhile, Smt. Radha died due to the burns sustained by her that very night. A cryptic news of her death was conveyed on 24. 11. 82 in the morning by Chaturbhuj, brother of the appellant to Babu Lal. On receiving the news, Babu Lal PW 2 went to his brother-in-law Hanuman PW3. On this, Hanuman, went to police station, Nayashahar, Bikaner and lodged a report Ex. P18. This report was recorded by Pritam Singh PW 12 u/s 174 Cr. P. C. ostensibly because till then, the cause of burning of Smt. Radha was not known. Pritam Singh immediately proceeded to the house of Mahavir and prepared site plan Ex. P8 and its legand Ex. P8 A. He also prepared a memo (Ex. P9) regarding the condition of the dead body of the deceased Smt. Radha and also a panchayatnama Ex. P10. He recovered a match box and a match stick from the scene of occurrence vide Ex. P12. He, further, recovered burnt nylon 'nivar' from a cot vide Ex. Pl3. He made recoveries of half burnt clothes, quilt etc. from the spot vide Ex. P 14. He found some broken pieces of bangles in the room where the dead body of Smt. Radha was lying. He also found some pieces of bangles outside the said room. He recovered them vide Ex. P15.
(3.) PRITAM Singh arranged for constitution of a medical board to conduct an autopsy on the dead body of Smt. Radha. The medical board consisted of P. W. 11 Dr. R. K. Gehlot and Dr. . A. C. Bothra and P. N. Sarin. This medical board conducted post-mortem examination of the dead body of Smt. Radha, which was identified by her husband Mahavir and her father Babu Lal besides a constable Ladhu Ram on 24. 11. 82 at 4. 15 p. m. The medical board found the dead body in a pugilistic posture. Faecal matter was coming out of anus. The hair of the deceased were smelling of kerosene oil. The body was extensively burnt and charred. The tongue was protuding and carbon particles had deposited on her teeth. Upon opening the dead body, the medical board found that the brain and its membranes were congested. Carbon particles had mixed with mucus and had gone upto trachea. The mucus membrane of wind pipe was also congested. Likewise, both the lumgs, spleen, lever and kidneys were also congested. The medical board prepared a post-mortem report Ex. P17 in this regard. In the opinion Of the medical board, Smt. Radha had died due to shock because of excessive burns involving 95% of her total body surface area. The medical board preserved her viscera for chemical examination and skin for histo-pathological examination. The prosecution story is that after the post-mortem examination was over, Pritam Singh recovered the ornaments of the deceased vide Ex. P15. Certain pieces of clothing sticking on the body of the deceased were also recovered vide Ex. P 16. He, thereafter, handed over the dead body of the deceased to her husband Mahavir vide Ex. P4. Eventually, the mortal remains of Smt. Radha were cremated by Mahavir and his relatives. The prosecution story is that on 28. 11. 82, appellant Mahavir went to the house of Babu Lal. At that time, Babu Lal's brother-in-law Hanuman PW 3, his cousin Gopi Ram PW 6 and PW 9 Ram Chandra another brother-in law of Babulal were present. The appellant made an extra-judicial confession in the presence of these persons to the effect that he had burnt Smt. Radha to death and, therefore, he may be pardoned. On this, Babu Lal told him that he could not be pardoned for such a serious crime. Thereafter, Babu Lal got a report written and lodged the same with PW 12 Pritam Singh on 29. 11. 82 On the basis of this report, Pritam Singh recorded a formal F. I. R. Ex. P3 for offence u/s 302 I. P. C. and proceeded to investigate the matter. He recorded the statements of various witnesses and eventually filed a charge-sheet against accused-appellant Mahavir. It appears that Babu Lal was not satisfied with the investigation made by Pritam Singh and he, therefore, lodged a criminal complaint against Mahavir, Chaturbhuj, Mohan's and his wife Smt. Mohini with the Magistrate having jurisdiction. The learned Magistrate, in whose court this complaint was lodged, forwarded the same to S. H. O. , police station, Naya Shahar, upon which CW 1 Bakhshish Singh made further investigation into the matter. However, he did not find any substance in the complaint and submitted a final report Ex. D14 Consequently, appellant Mahavir alone was committed to court of Sessions for standing trial for offence u/s 302 I. P. C. Learned Sessions Judge, Bikaner, framed charge u/s. 302 I. P. C. against the appellant on 7. 2. 83. The accused pleaded not guilty and claimed trial. ;