MADAN, J. - (1.) BY way of this appeal, the judgment of the Additional Sessions Judge Neem Ka Thana (Sikar) convicting & sentencing Jagdish (A1) & Sadhuram (A2) appellants for following offences has been assailed- Sadhuram (A2) U/sec. 498-A IPC - Three years' RI with a fine of Rs. 250/- (in default, further 3 months's RI) U/sec. 302 IPC - Life imprisonment with a fine of Rs. 2000/- (in default, further two years' SI) Jagdish (A1) U/sec. 201 IPC - 3 years' RI with a fine of Rs. 500/- (in default, further 6 months' SI)
(2.) FACTS in nutshell are that on the basis of Parcha Bayan (Exp4) of Malaram (Pw3) recorded by Gokul Singh (PW13) (Sub Inspector) on 22. 11. 96, FIR No. 372/96 (Ex. P. 10) was registered at PS Neemka Thana alleging therein that in midnight of 22. 11. 96 at 1 A. M. Jagdish (A1) came to the house of Malaram requesting to accompany him as his son Sadhuram (A2)'s wife Rukma was not opening the door so he accompanied Jagdish to his brother Narain's house from where Narain also joined them and Mohan was also called. Thereupon all gathered at the house of Jagdish (A1) where Narain knocked the door asking Rukma to open it but the door was not opened then Sadhuram (A2) climbed over roof of hutment and by removing roof straws, had entered into hut and after unbolting the door in a lantern light found wife of Sadhuram & his two children hanging with a plastic rope in a dead position, so their bodies were got down and whereupon Jagdish (A1), Narain and Sadhuram (A2) asked him (Malaram) to stay while for a 5 minutes in order to consult family members about mishap at Mohan's place meanwhile Jagdish's wife cam there but she did not say not she wept. After half an hour Jagdish (A1) & Sadhuram (A2) came back and asked him (Malaram) not to disclose this mishap to anybody, for which he was sworn to Goddess of Ganga. It has also been alleged by Malaram in Parcha Bayan (Exp4) that at that time Sadhuram had kerosene tin in his hand and poured kerosene over Rukma & Munni and then both of them reiterated to swear in the name of Good not to disclose or whisper about this mishap in order to save them; thereafter Malaram went to him home but at 2o'clock in the midnight he heard of commotion and hullabaloo in the locality so he came out of his home and found villagers gathering outside huts of Jagdish (A1), which were being burnt. malaram then alleged that Sadhuram (A2) had beaten his wife Rukma a day before the incident and he was habitual to beat her off and on and in the last night Rukma was hanged to death and then with common intention on the part of Sadhuram (A2), his father Jagdish (A1), his uncles narain & Mohan, they set ablaze Rukma & her daughter causing burn to their own huts also. Malaram further alleged that all the family members used to harass and humiliate Rukma and they had set corpses of Rukma & Munni ablaze with intent to destroy the proof and then lodged a false report about having caught the fire to his hut, whereas the fire was obliquely made. It is pertinent to mention here that at 4 A. M. on 22. 11. 96 a report (Exp9) was lodged by Jagdish (A1) intimating the police that in the night Rukma (wife) and Munni daughter aged 8 months of his son Sadhuram (A2) while they were sleeping sudden fire caught their house setting ablaze both of them. This report was sent to the SDM Neemka Thana with a view to proceed U/sec. 176 Cr. P. C. Upon aforesaid Parcha Bayan (Exp4) crime was registered for offences u/sec. 498a, 306, 201, 436, IPC, for murders of Rukma (wife) and Munni (Daughter) accused Sadhuram, against not only the accused appellants but also two others namely narain & Mohan. Inquest report (Exp5) of both the dead bodies were prepared during proceedings u/sec. 176 Cr. P. C. Site Plan (Exp7) was prepared. Autopsy was got conducted on the persons of the deceased by the medical board consisting of Dr. SC Sharma (PW 11) Dr. P. K. Garg, & Dr. S. K. Meena. The Board gave autopsy reports (Exp14 & 15), according to which the cause of death of Munni & Rukma was assigned as suffocation (asphyxia) due to antemortem burns. In autopsy report of Munni (Exp14) her external appearance was stated as under:- Soft tissue is burnt on the head and all over the limbs, viscera burnt, protruded out skull burnt, brain matter partially protruded out and burnt. The chest muscles burnt. The thorax cage was partially burnt. The neck muscles were also burnt partially. No putrefaction present. Eyes cannot be examined because of burns. In remaining muscles rigor mortis was present. Membranes, walls, ribs & cartilages, peritoenum, small & large intestines and their contents were partially burnt and congested. Pleurae, pericardium were only congested. Right & left lungs liver, spleen & kidneys were shrunken and congested. Stomach & bladder were empty and congested. In larynx & trachae besides mouth pharynx & oesophagus, there was sooty carbon particles present. Mucons membrane was congested. In column of organs generation: external and internal, it has been stated as healthy (internal but with extreme parts burns. Right valve of heat was full of blood while lower valve was empty.) In autopsy external appearance of Rukma was found as under:- "both upper limbs, right lower limb, left thigh are burnt to carbon. left leg is absent. Left ankle joint with left foot is separately present and burnt to carbon. The skull and face burnt and brain matter is exposed and partially burnt. The neck and trunk skin is burnt. Neck muscles are partially burnt. Chest muscles are partially burnt with ribs. The abdominal viscere intestines are exposed and partially burnt. The remainings muscles are in phase of fully developed Rigor mortis. No putrefaction. Marks of ligature on neck dissection-Nil, Condition of pupils cannot be examined. Liver, spleen, Kidneys, Right & left lungs were shrunken and congested. Ribs & Cartilages. Membranes, Peritoneum, small & large intestines with their contents were partially burnt and congested. Pleurae, Pericardium. Empty bladder & stomach with its contents were congested. External organs generation was burnt but internal healthy with large vessel. In larynx & Trachae, mouth pharynx and oesophagus sooty carbon particles were present. Mucus membrane congested.
(3.) DURING investigation, Buglaram brother of Rukma also addressed complaint dated 23. 11. 96 (Ex. P17) to the Dysp Circle Neemka Thana making allegations of maltreatment and humiliation by Sadhuram (A2) with Rukma after one year of her marriage and further stating therein that on 22. 11. 96 at 8 A. M. Narainram, Mohan came to his house (Bugla's) in a jeep and intimated that Rukma and her daughter had died due to fire to the hut and therefore, he alongwith Girdhari etc. reached the spot when it was given out by Malaram Gujar, Phoolch and etc. that Sadhuram (A2) had after having killed Rukma & her daughter had put them into fire by pouring kerosene oil. After usual investigation, challan was filed by the police against accused appellants and Narain for offences u/sec. 498a, 302, 201, & 436 IPC, in the court of ACJM Neemka Thana and then the case was committed to the court of Sessions. The learned trial court charged aforenamed accused who denied the charges and claimed trial. During trial, as many as four witnesses were examined by the prosecution. The accused were also examined u/sec. 313 Cr. P. C. In defence all accused except Sadhuram refused to produce defence evidence and Chhitar (DW1) was produced in defence besides exhibiting two documents viz. police statements of Malaram (Exd1 & D2 ). After hearing both the parties and considering the evidence on record, the learned trial Court by its judgment dated 20. 0. 97 acquitted Narain (Accused) of the offences charged, Jagdish (A1) of the offences u/sec. 498a, 302, 436, IPC, and Sadhuram (A2) U/sec. 498a & 302 IPC and sentenced each of them as indicated in first para of this judgment. Hence this appeal. Shri Samunder Singh learned counsel for the appellants contended that the impugned conviction against each of the appellants is totally based on circumstantial evidence but while considering such an evidence the learned trial Court has failed to appreciate in a right perspective in the light of cardinal principles of criminal jurisprudence because the circumstances brought on record by the prosecution in its evidence are not sufficient to hold the appellants guilty for offences either u/sec. 302 & 498a IPC or 201 IPC, inasmuch as one the trial court after appreciating the circumstantial evidence of the prosecution had acquitted all the accused of the offence u/sec. 436 & 436/201 IPC, therefore, conviction u/sec. 201 IPC cannot be based on such circumstances against single accused jagdish for lodging a wrong report which is a different matter being subject of Sec. 211 IPC. ;