SHARMA, J. - (1.) WHOEVER saw her shedding tears, whoever heard her sighs, a grief-struck young lady Smt. Rakesh lost her life on a fateful day of October 2, 1992. According to her husband Ramni Singh, she was killed by Nirbhay, Nekram and their companions whereas her father Goliram says that it was a dowry death and Smt. Rakesh was murdered by her husband Ramni Singh and his near relatives. Let us find out the truth.
(2.) AS many as 13 accused persons including the appellants Nirbhay and Nekram were indicted before the learned Additional Sessions Judge No. 2 Bharatpur in Sessions Case No. 13 of 1994. Learned Additional Sessions Judge vide judgment dated February 14, 1996 acquitted co-accused Ram Swaroop, Kare, Jagdish Prasad, Chandu, Niranjan, Nemi, Kanchan, Veerpaloa, Hari Ram, Dauli and Kamar Sen. The appellants Nirbhay and Nekram were found guilty, convicted and sentenced as under- Nirbhay u/sec. 302 IPC Imprisonment for life and fine of Rs. 1000/- (in default to further undergo six months R. I.) u/sec. 452 IPC Two Years RI and fine of Rs. 500/- (In default to further undergo three months R. I. Nekram u/sec. 304/34 IPC Imprisonment for life and fine of Rs. 1000/- (in default to further undergo six months R. I.) u/sec. 452 IPC Two Years RI and fine of Rs. 500/- (In default to further undergo three months R. I. Against this judgment of conviction that the action for filing the instant appeal has been resorted to by the appellants Nirbhay and Nekram. The short facts leading to the conviction need narration. Ramni submitted a written report (Ex. P. 1) to the S. H. O. Police Station Kumher when he visited the place of occurrence at village Rajora on October 3, 1992 at 1. 15 a. m. with the averments that around 5. 00 P. m. on October'2, 1992 while he was taking his meal in his house and his brother's wife was making chapaties, the accused appellants alongwith other co-accused persons, equipped with weapons like Farsa, Tanchia, Lathi, Katta etc. entered his house to open assault. They attacked on the informant. The wife of the informant namely Smt. Rakesh (since deceased) in order to save him, intervened in between. The informant in that situation was able to escape but his wife Smt. Rakesh was hacked to death by the accused appellants. On the basis of the said report a case bearing No. 364/92 under Sections 147, 148, 149, 323, 302, 452 and 379 IPC was registered and investigation commenced. Panchanama of the dead body of Smt. Rakesh was drawn. Site was inspected. Autopsy of the deadbody of the deceased was conducted by a Medical Board. Statements of the witnesses under section 161 Cr. P. C. were recorded by the police. Accused appellants were arrested and at their instance Farsa and Tanchia were recovered and sealed. On conclusion of the investigation charge sheet was filed against 13 accused persons including the appellants Nirbhay and Nekram. In due course the case came up for trial before the learned Additional Sessions Judge No. 2 Bharatpur. The trial court framed charges under sections 148, 302, 324, 149, 323/149, 452 and 380/149 IPC against the accused appellants who denied charges and claimed trial. The prosecution examined as many as 20 witnesses, thereafter the explanation of the accused appellants under section 313 Cr. P. C. was recorded. The accused denied the allegations and pleaded that Gollram, the father of deceased Smt. Rakesh instituted a murder case against Ramni and his relatives for killing Smt. Rakesh and the informant falsely implicated the accused appellants. Five witnesses were examined in defence by the accused appellants. Learned Judge after hearing the final submissions convicted accused appellants Nirbhay and Nekram and acquitted other 11 accused persons as indicated hereinabove. It is well settled that while assessing and evaluating the testimony of eye witnesses the court must adhere to two principles namely whether in the circumstances of the case it was possible for the eye witness to be present at the scene and whether there is anything inherently improbable or unreliable. Credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence in the context of the case. Bearing the above well settled principles in mind, we will now examine the evidence adduced by the prosecution. Informant Ramni Singh (PW. 1) in his deposition stated that in the evening around 5 to 6 p. m. on October 2 1992 he and his nephew Satish were taking meals in his house. His wife Rakesh was serving and his brother's wife Meena was cooking the food. His Bhabhi Ramwati was busy in the house hold work. Suddenly Hari Ram entered his house and inflicted lathi blow on his person, he immediately stood up and saved herself, lathi blow could only hit the ground. Nirbhaya entered the house and gave Farsa blow on the right side of his wife and second farsa blow on the left side of her head. Hari Ram then asked as to how she dared to intervene, inflict more injuries and kill her. Nekram, who was also entered the house following Nirbhay, inflicted blow with Tanchia on her neck. On hearing hue and cry Ramwati and Meena also came there. After his wife fell down Nekram inflicted Tanchia blow on her back. Thereafter Veerpal armed with katta, entered the house. Ramwati and Meena persuaded the informant to run and he climbed on staircase, reached at the roof jumped and went to the house of Chhuttan. He had seen Hakim Singh, Nahar Singh, Ramesh Kamar Sen, Niranjan, Ram Swaroop, Kare, Chander, Jagdish, Kanchan and Nemi standing at the door of his house. Hakim Singh, Nahar Singh and Ramesh were having Guns in their hands. All the accused persons thereafter came to the house of Chhuttan and asked him to push the informant out but Kamal pacified the accused and they went back without causing harm to anybody. When the informant came back to his house he found his wife dead. Toran thereafter proceeded to inform the police and at about 12 in the night, police reached at their village. He then handed over the written report to the police. In the cross examination Ramni Singh deposed that in 1984 one Ghantoli was murdered and in that case he, his father Rasal Singh his brother Mahendra Singh alongwith Nirbhay (appellant) were named as accused. He further stated that after her wife made attempt to save him from the attack of the accused, Nirbhay and Nekram inflicted injuries on her person. He deposed that the police recorded his statement on October 7, 1992. He admitted that Kunwar Pal's (DW. 2) house was adjacent to his house.
(3.) SATISH (PW. 2) is the nephew of Ramni Singh. As he has not named as witness in the FIR , we ignore his testimony. Keran Singh (PW. 3) in his deposition stated that 15-16 persons including Nirbhaya and Nekram opened assault at the house of Ramni. Nekram was armed with Tanchia and Nirbhay was having Farsa. When Nekram, Nirbhay, Veerpal and Hari Ram entered in the house of informant, he fled away and came back when police arrived. Meena (PW. 4) who is the wife of informant's brother stated that when she was cooking and Ramni was taking food, Hari Ram armed with Lathi, entered their house and inflicted lathi blow on the person of Ramni which slightly hit his shoulder. Rakesh came in front of Ramni in the meanwhile Nirbhay inflicted two blows with Farsa on her head. Hari ram persuaded Nekram to kill Rakesh and Nekram inflicted Tanchia blows on her neck and shoulder when she (Meena) made attempt to intervene Veerpal hit his stomach by his leg and Hariram hit her stomach from the top of the lathi. Veerpal took away her box of ornaments. In her cross examination she stated that till Rakesh sustained four injuries on her person, Ramni was wandering there in the chowk and thereafter fled through staircase. Govind Singh (PW. 5) did not see the incident occurred inside the house of Ramni. He only stated that 15-16 persons attacked the house of Rasal Singh and when he prevented them they gave him beating and he became unconscious. Ramwati (PW. 6) stated the same version, as was narrated by Meena. Toran (PW. 8) did not see the incident from his eyes. He only stated that when he went to Chhuttan's house he found Ramni there. Then 15-16 persons came to Chhuttan's house but on pursuation of Chhuttan all of them went back. After acquainted with the incident he went to Astawan and got informed police on telephone through Bholaram Meena. In his cross examination he stated that on telephone he intimated the SHO Kumher that Nirbhay and Nekram killed Ramni's wife. Ramveer (PW. 9) also did not see the incident from his eyes. He only stated that Rasal Singh's house was attacked. Naseer Khan (PW. 13) who was posted as Sub Inspector on October 2, 1992 at Police Station Kumher in his deposition stated that he recorded a telephone call around 11. 55 p. m. from village Astawan that one lady was seriously injured in a fight between the families of Ramni and Ramswaroop. He reached at village Pachora around 1 a. m. on October 3, 1992. There Ramni handed over a written report. He found Ramni at his house. He remained at village Pachora upto 5 a. m. Dr. Roopendra Kumar Mittal (PW. 14) stated that Medical Board was constituted for the autopsy of the deadbody of Smt. Rakesh and he was one of the member of the said board. Rakesh had sustained four grievous injuries on head and the cause of death was coma as a result of injured on head. According to Post Mortem Report (Ex. P. 22) nature of injuries sustained by Smt. Rakesh was as under - (i) Incised wound 17x2x5 cm. on upper part of mandible to parital eminate of Lt. side with bisection of Pinna. (ii) Incised wound 8x2x2 cm. on tempo parital region of the Rt. side. (iii) Stab wound 2x 3/4 x 3 cm. on Rt. side at nape of neck. (iv) Stab wound 2x 1/2x 2 cm. Rt. scapula region. In the cross examination or. Roopendra Kumar Mittal deposed that injury No. 1 could have been caused by a weapon having its cutting blade 17 cms. long. Weapon like Tanchia could not cause stab wounds. After seeing Farsa (Article-1) alleged to have been recovered from the accused, Dr. Mittal deposed that it was in a shape like half moon and depth of the injury caused by it could be uneven whereas depth of the injury No. 1 sustained by Smt. Rakesh was even from the beginning to the end. Prabhulal (PW. 19) who was posted as S. I. and P. S. Kumher, had gone with Naseer Khan to village Pachora. He conducted investigation of the case. In his cross examination he admitted that he had received a complaint of Goliram (father of the deceased Smt. Rakesh) forwarded by the court under section 156 (3) Cr. P. C. on October 18, 1992. In that complaint Goliram averred that Rakesh was murdered because of dowry by Ramni and others but he did not summon Goliram and investigate the matter as he was busy in other investigation. He further admitted that Farsa and Tanchia recovered at the instance of the accused were not stained with blood. ;