MATHUR, J. - (1.) THE instant appeal is directed against the judgment of the Sessions Judge, Jaisalmer dated 1. 12. 2000 convicting the appellant of offence under Section 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 3000/-; in default of the payment to further undergo 3 months simple imprisonment.
(2.) BRIEFLY stated that facts of the case are that on 28. 11. 99 at about 10:45 A. M. appellant submitted a written report Ex. D3 at Police Station, Pokran stating inter alia that he had performed `nata' marriage with Sariya Devi two years back and he was living happily with her. On 27. 11. 99 after taking dinner they retired to their bed room. In the morning when he got up he found his wife dead. He suspected that she committed suicide by consuming poison. The police suspecting it to be a case of suicide informed the Sub Divisional Magistrate, Pokran to hold inquest. P. W. 12 Smt. Kalpna Agarwal, S. D. M. , Pokran reached on the spot and inspected the site. The learned Magistrate during the inquiry as to the cause of death recorded the statements of Panna Lal vide Ex. P6 as well as the accused appellant Radhey Shyam. He stated that he used to live with his wife separately from the parents in a room. His wife was against keeping any sort of relations with his parents. In the morning when he returned from outside after answering the call of nature, his wife questioned him if he had gone to meet his parents. On not getting satisfactory answer, she became wild and caught hold his neck and punched finger nails. He also lost temper and pressed her neck. At about 10:00 the attending Compounder declared her dead. The said extra judicial confession was recorded by the S. D. M. vide Ex. P11. At about 4:00 P. M. P. W. 3 Panna Lal the father of the deceased submitted a written First Information Report Ex. P4 at the Police Station Pokran stating the his daughter Sariya Devi had performed Nata marriage with the appellant Radhey Shyam about 2 years back. Just after 3 months of the marriage it was reported that she was being assaulted by her husband, mother-in-law and Manga Ram, Sampatraj, Shaitan Mal, Manohar Lal etc. They also raised a demand of Rs. 20,000/ -. There were regular reports of maltreatment with his daughter by her husband and in-laws. A month before the incident his daughter Sariya was asked to collect Rs. 10,000/- from him. He could meet the demand to the extent of Rs. 5000/ -. On receiving the information of unfortunate incident, he along with his son reached on the spot and found the dead body of his daughter. He could see marks of strangulation on the neck. The neighbors also reported that in the intervening night of 27th & 28. 11. 1999 the appellant committed murder of his daughter Sariya Devi by strangulation. On this information police registered a case for offence under Section 304b & 498a I. P. C. and proceeded with the investigation. The post-mortem of the dead body of Mst. Sariya Devi was performed by a Medical Board headed by P. W. 8 Dr. Raghuvir Singh. The Board vide post-mortem report Ex. P. 9 noticed following injuries on the dead body of deceased Smt. Sariya Devi:- (1) Bruise 5 x 1 1/2 cm obliquely placed on Lt. side of neck on wind pipe encirclingly. (2) Abrasion 1 x 1/2 x 1/2 cm just belong injury No. (1) on Lt. side. (3) Bruises 2 x 1 cm both side of both clavicles just at lower border. (4) Abrasion 1/2 x 1/2 x 1/2 cm on chin. (5) Abrasion 1 x 1/2 x 1/2 cm just below Rt. mandible. (6) 4 x 2 cm Abrasion on Rt. side of Back. (7) Abrasion 2 x 1 x 1/2 cm Rt. knee. In the opinion of the Board Smt. Sariya Devi died due to asphyxia caused by throttling. The accused appellant was arrested on the same day. He was also medically examined. It appears from injury report Ex. P. 10 that he sustained following injuries:- (1) Abrasion 1/2 x 1/2 x 1/2 cm on upper lip. (2) Abrasion 1/2 x 1/2 x 1/2 cm on lower lip. (3) Abrasion in multiple number on front of neck. After usual investigation the police laid charge-sheet against the appellant for offence under Section 302 I. P. C. The appellant denied the charges leveled against him and claimed trial. The prosecution in support of the case examined 12 witnesses. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. He stated that on the date of incident as his brother Dinesh had not returned home upto 5:00 to 6:00 P. M. under the instructions of his parents he had gone in his search in the City of Pokran. He made search for whole of the night. In the morning he was found in the house of Jagdish Vishnoi. During the night he visited the house of Suresh, Madan, Hariram and Moola Ram inquiring about his missing brother Dinesh. On the date of the incident he was not in his house. He also stated that he lives with his parents in joint family. He pleaded ignorance about the incident in which his wife died. In support of his defence he examined D. W. 1 Madan Lal, D. W. 2 Hariram and D. W. 3 Gafar Shah. Analysing the evidence the trial court held that there existed tell tale circumstances leading to the irresistible conclusion that it was none else but the appellant who committed murder of his wife Smt. Sariya Devi. Accordingly, he convicted and sentenced the appellant as noticed above. It is contended by the learned counsel appearing for the appellant that the learned Judge has viewed the entire case with wrong approach. It is submitted that the trial Judge failed to consider the defence version in right perspective. It is also submitted that no reliance can be placed on the evidence of extra judicial confession, which is not voluntary in nature, excluding the evidence of extra judicial confession, there is no evidence worth the name to connect the appellant with the crime. On the other hand, the 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 firmly 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. In the instant case the prosecution has relied upon the following piece of circumstances:- (I) Extra judicial confession made by the appellant before P. W. 12 Smt. Kalpna Agarwal; (II) The appellant misled the police by concocting a false story of suicide and putting them on the wrong track; (III) The appellant has given contradictory versions of the incident; (IV) The appellant alone had an opportunity to commit murder of his wife Mst. Sariya Devi; (V) The appellant used to harass the deceased for not bringing the sufficient dowry. As such the relations between them were not cordial;
(3.) WE proceed to deal with each of the circumstance in seriatim:- (I) Extra judicial confession made by the appellant before P. W. 12 Smt. Kalpna Agarwal; P. W. 12 Smt. Kalpna Agarwal, Sub Divisional Magistrate, Pokran has stated that the appellant in inquiry under Section 176 of the Code of Criminal Procedure stated that his deceased wife did not tolerate any sort of relations with his parents. In the morning of the incident when he returned from outside after answering the call of nature she suspected that he had gone to meet his parents. She attacked on him and pressed the neck. He also lost temper and pressed her neck. It is submitted that the statement of the appellant before P. W. 12 Smt. Kalpna Agarwal is not voluntary. The learned counsel has invited our attention to the statement of P. W. 7 Smt. Sohini Devi. She admitted in the cross examination that the police told her that after the appellant was given a beating he confessed that Sariya was murdered by him. At this stage it would also be relevant to refer to the statement of P. W. 12 Smt. Kalpna Agarwal. She has categorically stated that when she recorded the statement of the appellant no policeman was present. He gave statement on his own without any threat or pressure. She also denied the suggestion of giving beating to the appellant by the police in her presence. In view of this, in our opinion, the statement of the appellant before P. W. 12 Smt. Kalpna Agarwal is voluntary and natural. Smt. Kalpna Agarwal is an independent witness. There is no reason for her to make a false statement. Thus, we are of the opinion that the prosecution has firmly established the first circumstances against the appellant. (II) The appellant misled the police by concocting a false story of suicide and putting them on the wrong track; As already stated the appellant went to the Police Station and made a false statement to the effect that Smt. Sariya Devi committed suicide by consuming poison. The version given is falsified by medical evidence. On the contrary the extra judicial confession finds corroboration from the medical evidence. Thus, he clearly misled the prosecution and made an attempt to put police on the wrong track. It is held by the Supreme Court in Geetha vs. State of Karnataka (1), that the false denial of incriminating circumstance provides a missing link in the chain of circumstances. In Basanti vs. State of Himachal Pradesh (2), 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 the res gestae as a evidence of conduct immediately after the occurrence. Apparently, the prosecution has succeeded in establishing the second circumstance firmly. (III) The appellant has given contradictory versions of the incident; The appellant vide Ex. D3 has given a statement that after taking dinner they retired to the bed room and in the morning when he wake up he found her dead. He thought that she might have consumed poison. However, in his statement under Section 313 of the Code of Criminal Procedure he stated that he was not in the house on the date of the incident as he had gone in search of his missing brother Dinesh. In the extra judicial confession he has given a third version of the incident. Thus, it is evident that he has been giving contradictory statements from time to time. Thus, the prosecution has firmly established the third circumstance against the appellant. (IV) The appellant alone had an opportunity to commit murder of his wife Mst. Sariya Devi; ;