VERMA, J. - (1.) ASHOK Dhariwal, his father Kanmal , sister Lalita and paternal uncle Amrit Raj were committed to court of Sessions, Jodhpur for facing trial for offences u/ss 302, 120b and 201, I. P. C. Learned Sessions Judge, Jodhpur transferred the case for trial to learned Additional Sessions Judge No. 2, Jodhpur. Learned trial Judge discharged Amrit Raj for all the charges and this order of discharge was maintained by this Court as well as by the apex Court. Charges for offences u/ss. 302, 201 and 120b, I. P. C. were framed against ASHOK; charges for offences u/s. 302 read with ss. 120b and 302, I. P. C. were framed against Kanmal and Lalita. On revision, this Court quashed charge u/s. 201, I. P. C. against all the accused persons. Hence, ASHOK was tried for offences u/ss 302 and 120b, I. P. C. while Kanmal and Lalita were tried for offences u/s 302 read with s. 120b, I. P. C. After trial, learned trial Judge acquitted Kanmal and Lalita of charges u/s. 302 read with s. 120b, L. P. C. he acquitted ASHOK of charge u/s. 120b, I. P. C. However, he convicted ASHOK of offence u/s. 302, I. P. C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/- and in default to undergo rigorous imprisonment for six months. Aggrieved ASHOK has filed D. B. Criminal Appeal No. 156/1986, State Government has filed with leave of this Court D. B. Criminal Appeal No. 11/1987 challenging acquittal of ASHOK for offence u/s. 120b, I. P. C. and of Lalita and Kanmal for offence u/s. 302 read with s. 120b, I. P. C. First informant Kailash has filed Criminal Revision No. 214/1986 praying for enhancement of sentence passed upon ASHOK. Since all these matters arise out of common judgment and order, all of them have been heard together by consent of all concerned and are being disposed of by a common judgment.
(2.) SOME of the salient facts of the case are not in dispute and may be noted here. Hansa Rani (deceased) was the youngest, of the five daughters of Peerchand (P. W. 34) and Madan Kanwar (P. W. 23 ). P. W. 2 Kailash is the brother of Hansa. The other of Hansa are Kamla, Sushila, Shanti and Vijay Laxmi, Kamala (P. W. 14) was married to Dalpat Mal Kumbhat (P. W. 29 ). P. W. 41 Sushila was married to one R. N. Modi. Vijay Laxmi was also married. Kailash was also married and his wife is P. W. 33 Asha Devi. P. W. 26 Ganpat Mal is father of Dalpat Mal and father-in-law of Kamla Hansa Rani was an educated girl and had studied upto M. A. (previous) prior to her marriage. Hansa's father Peer Chand used to reside at Balsar in State of Gujarat in connecotion with employment. Kailash Chandra used to live at Jodhpur in the locality known as Daphtarion kn Bas. Ashok, his father Kanmal and unmarried sister Lalita were also residents of Jodhpur and used to reside at Ghanchio ka Bas with other members of the family which included Vijay Raj, grand father of Ashok, Hukam Kanwar, mother of Ashok, Kailash brother of Ashok and wife of Kailash. Ashok was a Lecturer in Engineering College, Jodhpur. Marriage of Ashok was settled with Hansa by her brother P. W. 2 Kailash with the mediation of Dalpat Raj, her brother-in-law. This was sometime in June, 1977. At that time parents of Hansa were at Balsar. Kailash Chandra informed them of this settlement at which Peerchand and Madan Kanwar came to Jodhpur. Eventually, the marriage of Ashok was solemnized with Hansa on 28. 6. 77 with customary rites. At that time, there was no demand made from the groom's side, but the parents of the bride gave customary presents and spent in all about Rs. 35,000/- in this marriage. After their marriage, Ashok and Hansa visited Kashmir. Out of this wedlock a daughter, Varsha was born in April, 1978. Hansa after marriage continued her studies and passed her M. A. (Final) and B. Ed. examinations. She also joined service as teacher at village Kannana, which was at some distance from Jodhpur. She used to coomuto to and fro between Jodhpur and Kanana. Later on, Hansa joined commercial Taxes Department at Jodhpur as L. D. C. She used to visit her brother Kailash as also her sister Sushila frequently. However, Kamala and her husband Dalpat Mal were not on visiting terms with the family of Ashok appellant. This is also not in dispute that on the night intervening 27. 4. 81 and 28. 4. 81, Hansa Rani was in her marital home. Her husband Ashok, her sister-in-Law Lalita and her father in law Kanmal, along with other inmates of the family were also present in the house. Hansa Rani received extensive burns on her body that night and she was removed to M. G. Hospital in the taxi of P. W. 1 Ganpat Lal by Lalita and Kanmal. Amrit Raj (also called Amrit lal), uncle of Ashok went that very night to house of Kailash Chandra and informed him about Hansa Devi having been burnt and having been admitted to M. G. Hospital. There is some dispute regarding the precise nature of information conveyed by Amrit Lal, with which we shall deal at a later stage. Suffice it to say, that Amrit Raj transported Kailash (P. W. 2) and his wife Asha Devi (P. W. 33) the same night to M. G. Hospital. When Kailash reached M. G. Hospital, along with Asha Devi, they found that Hansa had already been admitted to E. S. I. Ward of the hospital and was under treatment. Lalita and Kanmal were already present there. Hansa was administered necessary treatment at the hospital but she eventually succumbed to her burn injuries and breathed her last in the hospital on 29. 4. 81 at 5. 05 p. m. Her post mortem examination was conducted on 30. 4. 81 at 11. 05 a. m. by Dr. N. S. Kothari (P. W. 32 ). Dr. Kothari found the following : " 1. Superficial burns on the face (except forehead, scalp and eyes) i. e. both cheeks tempal region of. face on both side including both ear pinnas. Tip of nose both lips and chin. Superficial burns on neck antero laterally & posteriorly. Chest anteriorly including breast, upper part of the abdomen, just above the umblicus. Left upper limb including hand, right upper limb on its antero medial aspect except right hand, back of the chest and lumber region and upper part of gluteal region. The burn area showed reddening, blackening and peeling of skin. 2. Skalds burns showing reddening (Erythema) with blisters and reddening of skin on the right thigh, on the antero lateral aspect left thigh on its antero lateral and posterior aspect, and left leg lower l/3rd part, including ankle region antero medial and lateral aspect. 3. There was vinisection stitched wound 2cm long on the lower l/3rd right leg on its antero-medial aspect. " The burnt area showed reddening, blackening and peeling of skin. On opening the body, Dr. Kothari found that brain and brain membranes of Hansa Rani were congested. Mucus membrances of stomach were also congested. Small and large intestines were also congested. Other internal organs were healthy. In the opinion of Dr. Kothari, the cause of death of Hansa was shock as a result of burns. Dr. Kothari preserved viscera of Hansa Rani for chemical examination. In his opinion, the burns found on the body of Hansa Rani were sufficient in the ordinary course of nature to cause death. Dr. Kothari prepared post mortem report Ex. P. 41 regarding the autopsy. Now, the basic substratum of the prosecution case: The prosecution story is that soon after her marriage, Hansa was taunted for brining inadequate dowry. She was humiliated of and on by her husband and her-in-laws including Kanmal and Lalita. She was being maltreated by the accused persons so that she may fetch more dowry. She complained of this behaviour of the accused persons to her parents, brother, sisters, sister-in-law and her friends. The accused persons tried to do away with her by administering slow poisoning. Ashok wanted to eliminate Hansa so as to enable him to get re-married and obtain larger dowry. The prosecution case is that in pursuance of the criminal conspiracy hatched among Ashok, Kanmal and Lalita, Hansa was burnt in the marital home. Then she was removed to the hospital to create a false impression of solicitude for her welfare,knowing fully well that she could not have survived the ordeal. The local Police was won over on behalf of the accused persons with the result that a false dying declaration of Hansa was obtained, even though she was not in a fit condition to give any statement. The case of the prosecution is that it was a cold blooded murder of a helpless lady, still in her twenties. The prosecution case entirely rests upon circumstantial evidence, to which we shall allude later. Suffice it to say that according to prosecution, all the three accused persons were guilty of the brutal crime.
(3.) THE defence was a complete denial of the alleged harrasment or torture of Hansa with a view to obtain larger dowry. THE theory put forward by the defence was that on the fateful night, all the inmates of the house were sleeping upstairs and the accused as also other inmates of the family on hearing hue an cry came down and saw Hansa aflame. Kanmal placed a Pattu around her and doused the flames. In attempt to save Hansa, hand of Ashok also got singed. THEreafter, Hansa was immediately removed to the hospital and was got treated. Ashok even donated blood for her. Kailash and Asha were immediately informed of the occurrence and were taken to the hospital. Ft was denied that the accused persons or any one of them set Hansa on fire. We have heard Sarva Shri S. R. Bajwa and Varun Gupta for the accused persons in both the appeals. We have heard Shri P. N. Mohnani, Special Public Prosecutor assisted by Surendra Surana on behalf of the prosecution in all the cases. Shri Niranjan Gaur has argued the matter on behalf of Ashok in criminal revision. At the out set, we may state that the prosecution in this case entirely rests upon circumstantial evidence. There is no eye-witness of the incident. The principles regarding appreciation of circumstantial evidence are rather well settled and we may recapitulate them here. Before an accused can be held guilty on the basis of circumstantial evidence, following conditions must be satisfied 1. The circumstances from which the conclusion of guilt is to be drawn must be fully established, 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explanable on any other hypothesis except that the accused is guilty, 3. The circumstances should be of a conclusive nature and tendency, 4. They should exclude every possible hypothasis except the one to be proved, and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The aforesaid principles have been held to constitute 'panchsheel' of the proof of a case based on circumstantial evidence (See Sharad Birdhi Chand Sarda Vs. State of Maharashtra (1 ). Therefore, we shall have to see if the prosecution has been able to establish its case against all the three accused persons in accordance with the yardsticks indicated above. ;