MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 21. 06. 1996 passed by the Additional District and Sessions Judge No. 2, Chittorgarh convicting the appellant for offence under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment to further undergo six months rigorous imprisonment.
(2.) BRIEFLY stated the facts are as follows: The appellant Gopal Lal Garg was married to the victim Mst. Manju about 12 years back while she was a child aged 10 years. But the `gona' took place only 4 years back. (In case of child marriage as per the custom actual marriage is consummated after the ceremony known as `gona' ). According to the prosecution Mst. Manju was maltreated by the appellant as her parents could not meet the dowry demand. It is the case of prosecution that on 5th of July, 1994 PW- 22 Shankar Lal, S. H. O. , Police Station Kapasan on receiving a wireless message from the Superintendent of Police, Chittorgarh reached at the house of appellant at village Singhpur at 5. 00 a. m. The appellant was found alone in the house. He narrated the incident of robbery in the house in night by some miscreants. The appellant submitted written First Information Report Exhibit P-1 at about 7. 00 a. m. stating inter alia that before going to the bed in night, he closed the door of the house and put lock thereon. In the night at about 12. 00 three miscreants entered in his house. One of the miscreant stood beside him, another stood beside his wife and third was standing near the bicycle. One of the miscreants attacked on him by `lathi' and made him unconscious. He was also wounded by knife. He gained conscious after about half an hour. On opening the eyes he looked at his wife. He opened the gate and went to the house of PW-2 Gyasuddin. He was awakened by him. He narrated the entire incident to him "esjs dks de ls de 1@2 ?k. Vk o iksu ?kuvs ckn esa gks'k vk;k rc esjh vkwa[k [kqyh esjh iruh dks ns[k okj okil fdokm dk rkyk [kksyk vksj fqj esjs im+kslh ds ikl x;k'' Thereafter, PW-2 Gyasuddin visited the house of appellant. His wife was lying unconscious. PW-2 Gyasuddin returned and informed her parents, uncle Rameshwar, Kailash etc. He also disclosed to the police that he married to Mst. Manju about 12 years back. His wife Manju was staying with her parents for about two years. He brought her in the month of January but she returned to his parents house in June 1994. Even prior to that she used to stay with her parents. There was a child of seven months in her womb. He also stated that his wife was assaulted by the miscreants but he did not raise hue and cry. He simply opened the lock of the house and went to the house of PW-2 Gyasuddin. He also stated that msicreants did not took away any article from his house. He also stated that the ornaments which his wife was wearing remained on her body. On this information police registered a case for offence under Section 302 IPC. On the same day, PW-23 Madanlal, the father of victim Mst. Manju submitted a written report Exhibit P- 19. He stated that his daughter Mst. Manju was married to the appellant Gopal Lal about 12 years back. At the time of marriage he had given a good dowry to the appellant. When his daughter grown up, he send her to her in laws house about 4 years back. However, she was being harassed by the appellant Gopal Lal, his mother, father and brothers. Because of their ill-treatment Mst. Manju stayed at his house for more than three years. A panchayat was also convened presided by former Sarpanch Dayaram. An assurance was given by the appellant and his parents before the Panchayat that Mst. Manju will not be ill-treated. Still he tried to meet the demand as per his capacity. He himself went to the house of appellant and dropped his daughter Mst. Manju. She stayed there for three to four months and returned to the village Singhpur and complained about the ill-treatment by the appellant and his parents. The appellant was arrested on the same day at about 5. 00 p. m. vide Ex. P. 15. After usual investigation, police laid charge-sheet against the appellant, his brother Dinesh, mother Kamla, father Sohanlal for offence under Section 302/34. The appellant and other acquitted accused persons denied the charges levelled against them and claimed trial. The prosecution in support of the case, examined 26 witnesses and produced certain documents. The appellant and other accused persons denied the correctness of the prosecution evidence appearing against them. The appellant in his statement under Section 313 Cr. P. C. has stated that on the date of incident he alongwith his wife was sleeping in the house. He was awakened by the bark of dogs. On opening the eyes, he found that one person was standing beside him with a knife and another person was standing beside his wife armed with an iron rod (Sariya ). When he tried to get up, the person standing beside him inflicted injury by knife on his left hand. The person standing nearby his wife gave a blow by iron rod on the heaf of his wife on account of which she died. Thereafter, the person standing beside him pressed his neck on account of which he become unconscious. On gaining conscious he found his wife dead. He went to the house of PW-2 Gyasuddin and PW-1 Smt. Amida Bai and narrated the incident. In the night itself, Rameshwar informed the Superintendent of Police, Chittorgarh on telephone about the incident. the police arrived at his house at about 6. 00 a. m. The police got a letter written by him under threat. He also stated that in the night Mithulal, Tolambiya and Kanhaiyalal Sethiya had also arrived. He also stated that miscreants entered in the house by jumping the wall. He gave out the height of the wall as eight feet and suggested that miscreant could enter in the house jumping the wall. With respect to information to police, he stated it was done by Rameshwarlal. He denied to have made any demand in respect of dowry. He further stated that on the contrary at the time of marriage he had given Rs. 5,000/- and at the time of engagement also he had given Rs. 5,000/- to her father-in-law. Analysing the evidence the trial Court arrived at the conclusion that the prosecution has failed to establish the demand of dowry or the cruelty to Mst. Manju. The court also held that the marriage had not taken place within seven years of the incident. In view of this finding, the learned Judge acquitted all the accused persons for offence under Section 304-B and 498-A IPC. However, the learned Judge held that there are tell tale circumstance leading to the irresistible conclusion that it was non-else but the appellant who committed the murder of his wife Mst. Manju. Accordingly, he convicted and sentenced the appellant as noticed above.
(3.) IT is contended by Shri D. S. Shishodia, Senior Advocate appearing for the appellant that the learned trial Court has viewed the entire case from a wrong approa- ch. IT is also submitted that the learned Judge has failed to consider defence version in right perspective. IT is submitted that evidence of recovery is an inadmissible eviden- ce and as such it cannot be considered as an incriminating circumstances. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. It is well established that no person can be convicted on the basis of circumstantial evidence unless all the circumstances relied upon by the prosecution are clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. The reference be made to the decision of Apex Court in State of U. P. vs. Hari Mohan & Ors. (1 ). While appreciating the circumstantial evidence what should be the approach of the Court has been indicated by the Apex Court in a recent decision of State of Himachal Pradesh vs. Lekhraj & Sons (2) The Apex Court has observed that the realities of life have to be kept in mind while appreciating the evidence for arriving at the truth in a criminal case. The Court observed: ``the traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian though but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feaure of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind. '' In the instant case, the most important incriminating circumstance on which the prosecution has relied upon is accused misleading the prosecution, making false assertions, making contrary, statements. In this regard, it is desirable to seek guidance from the recent decision of the Apex Court. In Kuldeep Singh and Ors. vs. State of Rajasthan (3), Apex court after referring to its earlier decision in Swapan Patra vs. State of West Bengal (4) and State of Maharashtra vs. Suresh (5) held that a false answer can also be counted as providing ``a missing link'' for completing the chain. In State of U. P. vs. Babu Ram (6) the court found the evidence of misleading the investigation or the people as an important incriminating circumstance. In Geetha vs. State of Karnataka (7), the false denial of the incriminating circumstance appearing against the accused has also been considered an important incriminating circumstance to supply a missing link in the chain of circumstances. In Smt. Basanti vs. State of Himachal Pradesh (8) the wife was charged for the murder of her husband. In the said case, the accused Mst. Basanti put the villagers including her brother in-law on the false track by telling them that deceased Prabhuram had gone away from village and had not returned. The Apex Court held that the conduct of hers was clearly admissible under Section 8 of the Evidence Act as part of res gestae as a evidence of conduct immediately after the occurrence. ;