- (1.) THE appellant has been convicted by the learned Addl. Sessions Judge, Rajsamand in Sessions Case No. 33 of 1997, vide judgment dt. 27. 2. 99, for the offence under Section 302 and 201 IPC, and sentenced to imprisonment for life with a fine of Rs. 500/-, in default to undergo one month's rigorous imprisonment on the first count, and to rigorous imprisonment for three years, and a fine of Rs. 500, in default to undergo one month's rigorous imprisonment, on the second count. Both the sentences have been ordered to run concurrently.
(2.) BRIEF facts of the case are that on 27. 1. 97 one Shanti Lal submitted a written report to S. H. O. Nathdwara alleging inter alia that Manju was married to the appellant four years back in accordance with community customs. On the day of information, he received information, whereupon he came, and found that Manju has been burnt to death by pouring kerosene by the husband, the appellant. On this report a case under Sec. 304-B I. P. C. was registered. However, before this report Marg case No. 4/97 had already been registered. After investigation charge sheet was submitted against the appellant for the offence under Section 302, 304-B, 498-A, and 201 I. P. C. The case was committed to the Court of District & Sessions Judge, Rajsamand wherefrom it was transferred to the Court of Addl. Sessions Judge. Learned trial court framed charge against the appellant for the aforesaid offence. The accused denied the charge, and claimed trial. In trial the prosecution examined 13 witnesses including Dr. S. S. Purohit, P. W. 12, and the Investigating Officer Shyam Sunder, P. W. 13. The accused in his statement under Section 313 Cr. P. C. took a stand of denial, and stated that he along with Chhagan Lal were sleeping on the shop of his father, and on hearing hue and cry on fire having broke out in the house they reached. He tried to enter the room, engulfed in fire but the crowd prevented him. In this process he also got burn, and fainted down. The people of the crowd carried him to hospital, and that the shutters of the house were also taken away by somebody in that night. With this it has been claimed that he has been falsely implicated. In defence the accused examined three witnesses viz. Ratangiri, Keshulal, and Chhagan Lal. The prosecution tendered various documents in evidence including some photograph of the site. Many of the documents had been admitted by the defence. After completing trial, the learned trial court found that the story developed by the prosecution witnesses during trial about the demand of dowry cannot be believed, as it has not been mentioned whether in the first report, or even in the police statements, and is an improvement made during trial. Consequently, the appellant was acquitted of the offence under Section 304-B, and 498-A I. P. C. but then the learned trial court found that the victim was murdered, and was thereafter set ablaze after pouring kerosene, and thus found the appellant guilty of the offence under Section 302 and 201 I. P. C. At once we may observe that in this case there is no eye witness to witness the incident, and the case rests solely oil circumstantial evidence. The learned trial court, as appears from para 51 of the judgment, found eight circumstances duly proved, being as under:- 1. The deceased and the accused used to live in the room where the incident occurred. 2. On the date of incident, presence of nobody else other than these two persons is established in the room in question. 3. The incident occurred at about 2. 30 A. M. in the night. 4. The victim deceased Manju died on account of asphyxia. 5. The victim was burnt thereafter, so that the evidence of murder be made to disappear. 6. No explanation whatever has been offered on the side of the accused about the incident. 7. The accused offered a false account of the sequence of events. 8. The accused took a stand of alibi which has been found to be false. Thus, according to the learned trial court these circumstances sufficiently established that the accused murdered Smt. Manju by suffocating her to death, and thereafter, after pouring kerosene set her ablaze. Assailing the impugned judgment it has been contended that the learned trial court has erroneously held the appellant to have killed Manju as, in his submission the appellant was not in the house, and was sleeping in the shop of his father along with Chhagan Lal, and it was a case of accidental on the other hand had gone to the house on receiving the news of fire, tried to save her in which process he also received burn injuries. It was then contended that it is a case of unfortunate accidental death which has been bolstered into a case of dowry death by the parental relations of the victim by cooking up the story of the appellant making a demand of Rs. 35,000/-, which has already been disbelieved by the learned trial court, and the appellant has been acquitted of the offence under Sec. 304-B, and 498-A I. P. C. In such circumstances, according to the learned counsel, the appellant cannot be held guilty of any of the offences. Next submission is that since the case rests on circumstantial evidence only, and the circumstances found by the learned trial court, are firstly not proved, and secondly, such of the circumstances as may be found proved by this Court do not establish a complete chain establishing guilt of the accused so also negativing innocence of the appellant on reasonable hypothesis. It is contended that according to the prosecution evidence the appellant's parents were living in that very house, and therefore, It cannot be said with certainty that it was the appellant alone who was the perpetrator of the crime, and thus on circumstantial evidence as found proved on record the appellant could not be held guilty.
(3.) THE learned P. P. on the other hand supported the impugned judgment, and contended that from the statements of Dr. S. S. Purohit, P. W. 12 and the post mortem Ex. P-9 it is clearly established that though the victim died of asphyxia, but asphyxia was not caused by burns, or fire rather it was after she had been killed by asphyxia, she was set ablaze, and therefore, it cannot be said to be a case of accidental death. We have considered the rival submissions, and have perused the record. Coming to the prosecution evidence, it may be observed that P. W. 1 to P. W. 8 are the parental relations of the deceased, and have deposed about the appellant making a demand of Rs. 30,000- 35,000/- from his in-laws, the victim making grievance about it, and have deposed that they received information about her death, whereupon they came, saw the dead body in the burnt condition. Since the learned trial court has disbelieved this part of the story regarding demand of money, and the appellant has already been acquitted of the offence tinder Sec. 304-B, and 498-A I. P. C. , and since there is no appeal against the aforesaid acquittal, we need not discuss that part of the evidence. The remaining part of the evidence is only to the effect about the witnesses having come, having seen the dead body in burnt condition, and some witnesses having seen kerosene remainants and/or empty kerosene container etc. This part of the event is not in dispute even on the side of the defence, therefore, evidence of these eight witnesses need not detain us any more. Then three witnesses P. W. 9 Laxmanlal, P. W. 10 Mangilal, and P. W. 11 Madanlal who had been produced on the side of the prosecution have turned hostile, as they have disowned their police statements Ex. P-6, P- 7, and P-8 respectively wherein these witnesses had deposed about the appellant having raised hue and cry in the night for rescue, and on coming to the scene they found the room engulfed in fire which was subsequently got extinguished, the deceased was found burnt, and was also dead, so also that the appellant did not make any efforts to extinguish the fire, and on asking the cause of breaking out of the fire it was given out to be on account of electric short circuit, while in the room stove, kerosene container etc. were lying in a disarray, clothes were stinking of kerosene, the tongue of the victim was protruding out. However, despite disowning the police statements, P. W. 9 has deposed about his having heard the cries of the appellant for rescue, whereupon he went and found the appellant sitting outside, the room was engulfed by fire which was extinguished by witness's wife then Mangilal and other neighbours had collected. In this fire Dilip's wife got burnt. Thereafter Hiralal (father of the appellant) also came. He has also deposed that food material was lying in the room, while the body was lying on the floor. In cross-examination he has stated that during night Dilip (appellant) and his wife (deceased) sleep in the house and during day hours they used to be on the shop. Likewise Mangilal, P. W. 10 has corroborated the statement of P. W. 9 in material particulars. P. W. 11 has also more or less deposed in line with examination in chief of P. W. 9. Thus on this evidence, in our opinion, it is clearly established that the incident took place at the dead of the night i. e. 2. 30 A. M. , the appellant was there at the house who is said to have raised cry for rescue, bait then on the witnesses P. W. 9, 10, and 11 arriving on the scene he was found sitting at the place of washing cloth while the room was engulfed in fire i. e. he was not making any efforts for extinguishing the fire, and it was the Neighbours who extinguished it, it is also established from this evidence that the victim died and the body was lying there in burnt condition. It is also established from this evidence that the appellant's father Hiralal had thereafter come. It is also established from the evidence of P. W. 9 read with P. W. 10 that during day hours the appellant, and his wife, appellant's father, and mother used to work on the shop, and the appellant and his wife (deceased) used to sleep in the house during night. It appears that the parents used to sleep in the shop, while the appellant couple was sleeping in the house. This we infer from the site plan Ex. P-3, and site inspection note Ex. P-4, which are the documents admitted on the side of the accused, wherefrom it is clear that the house in question comprises of only one room, wherein only one iron cot was found lying towards east side of the room, and towards the north west side of the room the burnt household articles were found, which included one cage of the parrot. Wherein the parrot was also lying dead. From east to west in between cot, and aforesaid household articles, is the main entrance gate of the room. It can well be assumed, according to the aforesaid norms, that in single apartment premises wherein only one iron cot is found, two couples being husband wife, and the parents of the husband, must not be sleeping in absence of anything being there in the room to provide privacy to the two couples, which in the given place has not been shown to be existing. Thus in our opinion, it is established beyond doubt that at the time of incident, it was only the appellant and the victim, who were there in the premises (room), and probably except the parrot, who also died, nobody-else was there. ;