SHARMA, J. - (1.) THIS appeal unfolds a tragic incident where on the allegation of murder of his wife Nirmala @ Rekha, the appellant has been convicted by the learned Special Judge, Dacoity Affected Area and Additional Sessions Judge Karauli vide judgment dated October 29, 1996 under section 302 IPC and sentenced to suffer imprisonment for life and a fine of Rs. 1000/- and in default to further undergo simple imprisonment for six months.
(2.) COMING to the broad facts of the case it may be indicated that on March 11, 1995, the appellant lodged a report Ex. IPC 40with the Police Station Karauli stating there in that on the said day he left his village Bhuapura in District. Murraina (M. P.) by a scooter along with his wife Nirmala @ Rekha for going to Kaila Devi Temple in Karauli. Around 8. 30 P. M. while he was descending on the slope of a pullia suddenly someone shouted to stop. He slowed down his scooter as he was afraid. When he tried to accelerate the scooter, one of the person shouted, `kill them'. He had seen one person standing near the road and two others near the Nalla. They had covered their faces with cloth. Suddenly the person who was standing near the road fired a shot which hit his wife on the left side near her ear. Consequently his wife expired on the spot. Leaving the scooter and dead body of his wife at the spot he rushed to lodge the report. On the basis of the said report a formal FIR bearing No. 82/95 was chalked out for offence under section 302 IPC. and the investigation commenced. Site was inspected. Autopsy on the dead body of the deceased was conducted. The Investigating Officer in the course of investigation found that the appellant himself was involved in the crime, therefore he got the appellant arrested and on the basis of appellant's disclosure statement recovered Katta ( fire arm) allegedly used in commission of offence. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned trial judge who framed the charges under sections 302 and 304 B IPC against the appellant. The appellant the charges and claimed trial. The prosecution in support of its case examined as may as 31 witnesses and produced 52 documents and 9 articles. In the statement under section 313 Cr. P. C. the accused appellant claimed innocence and examined three defence witnesses. On hearing the final submissions, the learned trial judge convicted and sentenced the appellant as indicated here in above. Since the appellant was convicted under section 302 IPC the learned trial judge did not incline to punish him under section 304 R IPC. Admittedly there is no direct evidence to connect the appellant with the guilt and the case is based on circumstantial evidence. The law relating to circumstantial evidence in clear unmistakable terms has been laid down by their Lordships of the Supreme Court in Tanviben Pankaj Kumar Divetia vs State of Gujrat (1 ). It was indicated thus : (Para 45) "the principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstances so proved must form a chain of events from which the only presistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainly and legal proof. It has been indicated by this court that there is a long mental distance between `may be true' and `must be true' and the same divides conjectures from sure conclusions. Bearing these principles in mind we propose to examine each set of evidence and to see whether taken together they are sufficient to raise inference that Rekha @ Nirmla was done to death by the appellant. The Circumstances which the prosecution presented can be recast as follows: (i) The deceased was last seen in the company of the appellant. (ii) The deceased died due to fire arm injuries and the fire arm allegedly used in commission of offence was recovered at the instance of the appellant. (iii) The appellant had a motive to kill his wife. As his greed of dowry was not fulfilled the appellant eliminate his wife. (iv) From the site plan itself it appeared that the appellant lodged a false report. The learned trial judge has relied upon the following evidence to convict the accused appellant- (i) In the FIR the appellant admitted to go to Kaila Devi Temple on the scooter with the deceased and she died of fire arm injury received by her while sitting on the rear seat of scooter. Thus this circumstance was found established that immediately before her death deceased was in the company of the appellant. (ii) As per post-mortem report (Ex. P. 35) and the statements of Dr. Nand Lal Sharma PW. 15, Or. Bhagwan Singh PW. 16, and Dr. M. L. Kawat PW. 31, the cause of death of the deceased was antimortem fire-arm injuries. (iii) From the signs appeared in the site plan the facts stated in the report by the appellant were found false. (iv) The firearm which was used in commission of offence got recovered at the instance of the appellant. (v) As per the statement of Narendra Singh (PW. 19 ). Udal Singh (PW. 20) and Ramavtar Singh (PW. 26) the appellant had greed of dowry and because of lack of dowry he killed his wife.
(3.) MR. R. S. Chauhan, learned counsel appearing for the appellant vehemently canvassed that two views of evidence are possible in the instant case but the learned trial judge has failed to apply the legal principle that in case two views of the evidence are possible then the view in favour of the accused should be accepted. The investigation was highly unfair and the appellant was rope in the case. The recovery of katta at the instance of the appellant is highly doubtful. Moreover since the report of the Ballistic expert was indefinite, therefore the recovery does not connect the appellant with the offence. The learned trial judge has himself supplied missing link in the circumstantial evidence through sheer surnises and conjectures. He has convicted the appellant not on the basis of proof, but on the basis of suspicion. The learned trial judge has failed to appreciate that PW. 19, 22, 23 and 26 were highly interested witnesses and their statements were full of exaggerations and contradictions, therefore their statements could not have been relied upon. MR. Chauhan further canvassed that PW. 2 and PW. 3 substantiated the case of the defence. Recovery of shirt allegedly worn by the appellant also corroborates the defence version and Kundan PW. 9 knocks the bottom out of the prosecution case with regard to the recovery of Katta at the instance of the appellant. Tika Ram PW. 2, who is an independent witness, deposed in his cross examination that the place where the occurrence took place is the jungle, and often even previously many a times robbers had stopped trucks and buses and looted them. This statement is further corroborated by Laxman Meena PW. 3 who stated that there had been incidents of robbing trucks at the place of the incident. Another independent witness Amrit Lal (PW. 10) in his cross examination deposed that at the place of incident similar incidents have taken place and the robbers have robbed and assaulted people on earlier occasions. These witnesses were not declared hostile, but their statements were overlooked by the learned trial judge. The learned counsel further urged that the appellant is not a resident of Karauli and thus not familiar with the area. Kalyan Prasad PW. 13 clearly stated that the man and woman came on a scooter asked as to how far Karauli and temple of kaila Devi were. Therefore the case of the prosecution that the appellant had intentionally brought his wife to the place of occurrence and killed her at that very spot which was notorious for robbery and assault is unsubstantiated. In fact, the statements of PW. 2, PW. 3 and PW. 10 support the case of the appellant that robbers attacked him and his wife and consequently his wife died. Their statements singularly point towards the innocence of the appellant. The learned trial judge has also ignored the conduct of the appellant immediately after the incident. According to Tika Ram PW. 2 the appellant embraced his dead wife and started crying and was nervous. In his cross examination he stated that the appellant accused requested that the body be carried to the well otherwise he himself will go and jump in the well. Laxman PW. 3 further corroborates testimony of PW. 2 when he deposed that the appellant was crying when he saw the dead body of his wife. According to be in a shocked condition on sudden death of his wife and like a normal human being he expressed his desire to die with his wife because of her sudden death. The appellant was crying like a normal human being on sudden demise of his wife. Therefore his immediate conduct after the occurrence points towards his innocence and is inconsistent with his guilt. The learned counsel further contended that even the Investigating Officer Dinesh Vashista PW. 18, stated in his cross examination that when the appellant came to lodge the FIR, there was nothing unusual in his behaviors to arouse his suspicion that he was the culprit. He further stated that the appellant was with the police throughout the investigation right from March 11, 1995 till his arrest on March 13, 1995. This circumstance is also consistent with the innocence of the appellant. In case the appellant was the real culprit he could have abandoned his wife's body at the lonely place in the dead of the night and could have run away. Instead the appellant rushed to the nearest farm and sought the help of the people of the locality. Therefore his conduct immediately after the incident clearly reveals his innocence and does not point towards his guilt. There is an overwhelming evidence on record that the appellant was attacked by unknown robbers whose faces were masked and that his wife was killed by one of the robbers. Despite this evidence being on record, the learned trial judge has not given the benefit of this possible view to the appellant. ;