BHANDARI, J. - (1.) THESE two appeals arise out of the judgment of the Additional Sessions Judge No. 1, Jodhpur dt. 30th of August 1962, convicting Gangaram under sec. 302 I. P. C. and sentencing him to undergo imprisonment for life. Cr. Appeal No. 544 of 1962 is a Jail Appeal while Criminal Appeal No. 580 of 1962 is the represented appeal. Both these appeals are disposed of by this judgment.
(2.) GANGARAM has been convicted for having throttled Tej Raj to death on the morning of 10th of January, 1962. Tej Raj deceased was a Mahajan of the town of Pipar and had dealings with GANGARAM who belonged to village Jalka which is very near the town of Pipar. On the morning at about 9. 00 A. M. Tej Raj had gone to village Jalka to make a demand from GANGARAM of the money for which the latter stood indebted to the former. It is alleged by the prosecution that some altercations took place between the two and then GANGARAM caught hold of Tej Raj by the neck and throttled him to death. GANGARAM himself went to the Police Station Bilara which is about 17 miles from village Jalka and submitted a report on the 10th of January, 1962 at 6 P. M. that Tej Raj had come to him on the morning of that date at about 9 and had demanded money from him on which he had requested Tej Raj to grant him some two or four days for making payment. Tej Raj, however, insisted that the payment should be made then and there otherwise something else will happen. Thereupon, he (GANGARAM) went outside his house saying to Tej Raj that he was going to arrange for money at some other place. Tej Raj remained alone in his house. He went to the shop of Poosaram. A little while after some children came there and said that at the house of GANGARAM one man was hanging from the ceiling. Thereupon, he, Narain Jat, Bhiyan Jat, Poosaram, Hasan Khan, Sindhi Narain and Pahu and others went to his house where Taj Raj was found hanging. He had committed suicide by putting Safa round his neck. Thereupon they removed the noose from the neck. His heart was beating at that time but soon after he died. The dead body was lying at his house. This report was recorded by Bhanwarlal Station House Officer, Police Station Bilara and he proceeded to make enquiries under sec. 147 Cr. P. C. On enquiries it was found that it was not a case of suicide but a case of throttling. Amar Chand son of Tej Raj also submitted a report that his father had been throttled to death by GANGARAM on the 11th of January, 1962, at 11. 45 A. M. After investigation GANGARAM appellant was challenged before the Munsiff-Magistrate Bilara under sec. 302 I. P. C. GANGARAM was examined on the 24th of March, 1962 by the Munsiff-Magistrate, Bilara. Ganga Ram stated that 2-1/2 months back Tej Raj had come to his house to demand from him Rs. 250/ -. At that time 2/4 persons were present. GANGARAM asked Tej Raj to give him time for 5/7 days. Thereupon Tej Raj said that the money must be paid then and there otherwise something else would happen which would put Ganga Ram in trouble and he (Tej Raj) would also suffer. The appellant then went away leaving Tej Raj alone at his house. His wife and others had gone out. Only a small girl of 9 years was playing in the chowk outside his house. The appellant asked one Shakoor at the shop of Chela to lend him some money. Shakoor and Chela promised that each of them would pay Rs. 100/- the next day. There he stayed for one hour. Then came her daughter and two other children at the house of Chela and informed him that Boraji (Tej Raj) was hanging in the house. He also heard from Narain that Tej Raj was dying by fastening a noose at his house. He and several other persons went to his house. They found Tej Raj hanging from the Kara (Iron ring) fixed in the ceiling of his Sal (verandah ). His turban was seen fastened to his neck. Tej Rej was raised from the ground and he found that he was breathing slowly. He got him unfastened and he was laid down in the Chowk (compound) of his house. On examination it was found that Tejraj was dead. Tejraj's turban was unfastened from the iron ring by Narain who after folding it had put it below his head. There was found no dust on the turban on account of having it fixed to the iron ring. He denied that he had throttled Tej Raj. He was charged under sec. 302 I. P. C. by the learned Magistrate and committed for trial to the Additional Sessions Judge No. 1, Jodhpur. The learned Additional Sessions Judge held that the death of Tej Raj was caused by the accused by throttling him and convicted him under sec. 302 I. P. C. and sentenced him as aforesaid. Hence these two appeals by GANGARAM to this Court. For convicting the accused, the learned Additional Sessions Judge relied on the evidence of Tara Chand (P. W. 11 ). He had stated that on the 10th of January, 1962 at about 9. 00 A. M. , he was passing in the thoroughfare adjacent to the compound of Gangaram when he heard Tej Raj demanding money from Ganga Ram appellant. Gangaram said that he had no money at that time and that he would pay it later on. Tej Raj abused Gangaram for not paying his dues on which Gangaram grappled with Tej Raj and put his hand on his neck. Tara Chand then went away and left village Jalak. The learned Additional Sessions Judge entirely disbelieved the defence that Tej Raj had committed suicide by hanging from the ceiling in the verandah of Gangaram's house in the absence of Gangaram. The learned Additional Sessions Judge also held that though Shri Shyamlal Bohara (P. W. 8) who had performed the post mortem examination was of the opinion that death was caused by asphyxia as a result of hanging, yet the case was not one of hanging but was either of strangulation or of throttling. He took the view that from the circumstantial evidence on record as well as that of Tara Chand, it was established that the appellant had throttled Tej Raj and was thus guilty of an offence under sec. 302 I. P. C. In these appeals it is urged by the learned counsel for the appellant that the learned Additional Sessions Judge was not justified in rejecting the opinion of Shri Shyamlal Bohra that it was a case of hanging. It is also urged that the evidence of Tara Chand is false and unreliable and the learned Additional Sessions Judge should not have placed any reliance on his statement. It is further urged that the evidence on record was not sufficient to convict the accused for an offence of murder. The post mortem examination of the dead body of Tej Raj was performed on the 11th of January 1962 at 2. 00 P. M. by Dr. Shyam Lal Bohra, Medical Officer-in-charge, Primary Health Centre, Pipar City. He found a ligature mark present on the neck. It was oblique, circular and broad, passing above the thyroid cartilage in front and then continued at the back with a deep groove at the lower part of the neck. The impression of the ligature mark was fainter in front and left side, then at the back. An Abrasion 1-3/4" x 1/4" was present on the upper margin of the groove near the left chin. The groove on the back was hard and parchment like. There was no ecchymosis under the ligature mark. There was a slight swelling present on the thyroid cartilage. There was no fracture of the thyoid bone or thyroid cartilage. There was no blood or foam present on the trachea. Saliva was coming out of the left angle of the mouth. The eyes were half open and pupils dilated. In the opinion of the said Medical Officer Tej Raj died of asphyxia due to hanging. In his arguments learned counsel for the appellant laid much stress on this opinion of Dr. Shyam Lal Bohra. We, therefore, thought it proper to recall the said doctor and examined him on the 7th of October 1963. He stated that he could not say whether the ligature mark was an injury which occurred before the death of the deceased Tej Raj or after his death. He also admitted that in the case of hanging the ligature mark is normally not all round the neck as in the case found on the dead body of Tej Raj. His opinion that the case was one of hanging was on account of the fact that the ligature mark was above the thyroid cartilage. Had the mark been below the thyroid cartilage, he would have concluded this to be a case of strangulation. He further stated that it was not impossible even in the case of strangulation to find the ligature mark above the thyroid cartilage but generally it was not so found. He also stated that the sort of ligature mark found in this case could be caused by putting a piece of cloth round the neck of a dead person and tightening it. He also admitted that the abrasion 1 3/4" x 1/4" which was present on the upper margin of the groove near the left chin could have been caused independently of the ligature mark and this abrasion was ante-mortem. He also stated that he took it that because there was a ligature mark the abrasion must have been caused by ligature material. He also admitted that in this case the ligature mark was not higher at the back of the neck than on the front and this militated against the theory of hanging to a certain extent. He also stated that the flow of saliva is due to the pressure on the salivary glands in whatever manner the pressure is applied on the salivary glands and this was one of the factors which counted in his giving the opinion that the deceased died of hanging. He admitted that to him the circumstances in the case appeared to be more in favour of it holding a case of hanging than of strangulation but he could not say that this was a case only of hanging. He further said that suicidal hanging was out of question looking to all the circumstances of the case. He stated that in suicidal hanging there was a definite mark which is lower in front of the neck and it is not circular. He admitted that except that the ligature mark is not of the type that is found in suicidal hanging there is no other circumstance which could be distinguished from suicidal hanging. The appellant was given an opportunity to produce any other medical jurist in defence and the appellant examined Dr. Har Govind, Medical Jurist, Mahatma Gandhi Hospital, Jodhpur in his defence. Dr. Har Govind stated that in his opinion the case was of hanging. His reasons were that there was a ligature mark, there was presence of saliva and there was no other mark of injury on the body and also there was absence of fracture of thyroid bone and thyroid cartilage. He also stated that the presence of saliva in this case indicated that the ligature mark was ante-mortem. To him the case appeared to be of suicidal hanging. On cross-examination, he admitted that the presence of a ligature mark alone is not diagnostic of death. He also admitted that the ligature mark could be produced if a ligature material is tied round the body soon after the death. He also admitted that it was not necessary in the case of throttling that there must be a fracture of thyroid bone or of thyroid cartilage. He admitted that had there been no ligature mark in the present case he would have said that the deceased might have died as a result of throttling. After the death of the deceased in the present case, the ligature mark could be simulated. He also stated that in the case of hanging in the air, the weight of the body is the constricting force, and in such a case the ligature mark must be oblique except when the noose is of a running or slipping type. It is clear from the evidence of both the doctors that it is the presence of the ligature mark on the neck which has mainly affected their opinion. Both the doctors, however, are of the opinion that the ligature mark could be simulated. Dr. Har Govind agreed with the observations contained in Modi's Medical Jurisprudence and Toxicology 13th Edition, Page 155. "the presence of a ligature mark alone is not diagnostic of death from hanging, inasmuch as, being a purely cadaveric phenomenon,it may be produced if a body has been suspended after death. " He also admitted that the ligature mark could be created even in a case of throttling by placing the ligature material round the neck soon after the death. The presence of the ligature mark; round the neck is a factor which is of great significance. We may, however, observe that in spite of the ligature mark Dr. Shymlal Bohra is of the opinion that the case is of homicidal hanging. Dr. Har Govind, however, is of the opinion that the case may be of suicidal hanging, but he admitted that when the case is of hanging in the air, ligature mark must be oblique except when the noose is of a running or a slipping type. It will be proper for us to leave further discussion of the medical evidence for the present and to turn to the facts of the case. In this connection we first proceed to examine whether there was even a remote possibility for the deceased to Commit suicide in the circumstances established on record. Tej Raj was the Mahajan who belonged to Pipar City. Shri Purkha (P. W. 6) stated that on the morning of his death at about 8/9 A. M. , Tej Raj came on a bicycle to village Jalaka to recover his dues. He left his bicycle and the shawl at his house and then went to the village to make his recoveries. In the First Information Report made by Gangaram it is admitted that he came on that morning at about 9 A. M. to his house and demanded money from him. Gangaram wanted time for 2/4 days to give him the money. Thereupon Tej Raj said that his dues must be paid then and there, otherwise something else will happen. Thereupon Gangaram went out of his house. The whole of the F. I. R. is exculpatory in character and can be taken into evidence. Gangaram appellant even in his statement before the committing court stated that Tej Raj had come to him and demanded his dues at his house arid thereupon he asked him to grant him 5/7 days time. This took place in the presence of 2/4 persons. Thereupon Tej Raj said that his money must be paid then and there, otherwise something else will happen which will make Ganga Ram suffer and the deceased would also suffer. Thereupon Gangaram appellant went away to the place where Shakoor Teli was weighing Til and Tej Raj remained alone in his house. At that time his wife had gone to his field and there was only his daughter aged 7 years playing in the Chowk. This statement of the appellant before the committing court is an evidence on record under sec. 288 Cr. P. C. In his statement under sec. 342 Cr. P. C, the appellant admitted the correctness of his statement given in the committing court In defence the appellant examined his daughter Mst. Panki (DW2 ). She admitted that the 'bora' meaning thereby Tej Raj had come to her house early in the morning on the date of the incident and had told her father to pay the dues on that very day and her father promised that he would pay the dues that very day. Her father then went away to Chela to bring the money from him. Thereafter Tej Raj hanged himself in the house wherein she and her younger brother were playing as their mother had gone to the field earlier. Thus, it is clear that Tej Raj had gone to the house of the appellant to demand his dues and that he insisted that the dues should be paid to him then and there. There was no earthly reason for the deceased to commit suicide at the house of his debtor at that hour. In the F. I. R. it is hinted that Tej Raj had threatened at that time that something else will happen. The appellant further amplified it in his statement before the committing court by saying that Tej Raj had said that some such thing will happen which will cause him to suffer and will also be a cause for the appellant to suffer. This means that Taj Raj had in mind to commit suicide on account of the non-payment of the money, but this looks absurd on the very face of it. The reason for committing suicide expounded by the appellant in his statement before the committing court is such as cannot be believed by any court of law. The story given by the appellant in the committing court further is that about half an hour later his daughter and some children came to the house of Chela and informed him that - "tejraj was swinging at the house". The prosecution evidence on this point may also be examined. Paburam (P. W. 4) stated that on the day of the incident he had gone to purchase til to Jalaka and was sitting in the house of one Pusha Ram Jat. Ganga Ram Jat was also sitting there. 3/4 children also came there. Those children told Gangaram that a Mahajan had died at his house. Ganga Ram also told that a Mahajan had died at his house. This witness was declared hostile by the prosecution as in his statement under sec. 164 Cr. P. C. this witness had given a version that Gangaram came running to the place and informed that a baniya was hanging. The witness went to Ganga Ram's house and found that Tejraj was lying dead in the angan and was not hanging. Pusa (P. W. 7) stated that his father was weighing til to one Shakoor in his presence at his house. Ganga Ram was also there. Gangaram's daughter came there and told him that a Mahajan was dying at his house whereupon Ganga Ram asked all the persons present to come to his house. The witness did not go to the house of Gangaram. This witness was declared hostile as he had given a version different from his police statement. Narain (P. W. 9) stated that he had gone to the house of Chela. At that time Ganga Ram was not there. Ganga Ram came there and informed those sitting there that a Mahajan was dying at his place. He went to the house of Ganga Ram and found the Mahajan lying dead in the Chowk of Gangaram. He was also declared hostile and was cross-examined with reference to his statement in the committing court wherein he stated that he had seen Tejraj at the Khator of the house of Gangaram demanding money from him. He had also stated that Gangaram had told him that Tejraj's death should be attributed to hanging. He also denied on cross-examination by the accused that at the house of Gangaram he had taken down the banya. Another witness Chela (P. W. 10) stated that Gangaram had come to him one day before noon and had asked him to lend him a sum of Rs. 100/- which he refused. Then he heard some noise in the lane and Gangaram had told him and others who were at the house to go to his house to ask Tejraj Mahajan to wait for 4/5 days. He saw from the thoroughfare that Tejraj was lying dead in Gangaram's Chowk, In defence, the appellant examined Jai Ram (D. W. 1) who stated that he had seen Tejraj Mahajan of Pipar hanging dead at the house of Gangaram appellant. He was hanging by a turban passed through a Kara (iron ring) in the ceiling and that turban was tied around his neck. Then Gangaram lifted the dead body of Tejraj and Narain took out the turban from the Kara (iron ring ). On cross-examination he stated that the knot at the Kara was first opened and Narain had done it and Narain had also opened the knot from the neck after placing Tejraj on the ground. Mst. Panki (D. W. 2) is a girl of 8 years and she stated that the deceased took the ghori (a sort of wooden article with which the children play by driving it with hand), and placing one leg on the ghori and the other on the Gokhara in the verandah put his turban through the Kara (iron ring) in the ceiling and wrapped round himself and started swinging. She had asked the Mahajan what he was doing to which the Mahajan did not reply. She then rushed out and went to the house of Chela to inform her father that the Mahajan was swinging. On cross-examination she admitted that there was no grappling or fight between the bohra and her father in the Khatal. The bohra had told her father that he should go and get the money and that he would remain sitting at the house of Gangaram. She also stated that the bohra went inside the house soon after Gangaram had gone and hung himself. She also admitted that there were houses near about her house but at that time their residents had gone to their fields. In the F. I. R. it is stated that Tejraj was seen hanging by the appellant, Narain Jat, Bhiyan Jat, Poosaram, Rasalkhan Sindhi, Paboo and other. In his statement before the committing court, the appellant stated that Narain had taken out the Sofa of the deceased from the Kara (iron ring) and had wrapped it and placed it underneath the head of Tejraj in the Chowk. It is also stated that the appellant had lifted him. Narain had, however, denied this and merely stated that he found Tejraj lying dead in the Chowk of Gangaram's house. Jai Ram (D. W. 1) attributed the taking out of the turban from the Kara to Narain. There was no reason why Narain should take out the turban from the Kara. Even if it be taken that at the time when Gangaram and others went inside the house and saw Tejraj hanging and found that there was some life left in him and opened the knot round his neck, there was no reason why the turban should be removed from the Kara. The evidence of Bhanwer Lal (P. W. 12) who was the officer-in-charge of the Police Station, Bilara and who went to make an enquiry under Sec. 174 Cr. P. C. on the report of Ganga Ram appellant is that the dead body was found lying in the Chowk with a turban tied to it. " In his inspection memo of the place where the dead body was lying he had stated that the Durban was in a tied state, meaning thereby that it was in a state as if it had been taken off the head. He had examined the turban of the deceased after opening it fully and found no dust mark on it. He had also examined the Kara and found that there was dust over it. The removal of the turban from the Kara can only be attributed to the appellant. If the appellant's case is true, it was highly improper for him to remove the turban from the Kara and place it beneath the head of the deceased. Mst. Panki poses to be an eye-witness of hanging but her statement is that Tej Raj was hanging in the air, while the medical evidence even of Dr. Ganga Ram is in conflict with the theory of the hanging in the air. As already mentioned, it was most improbable that Tej Raj deceased should take in his head to commit suicide on account of non-payment of money and of all the earthly places choose the verandah of the house of the appellant to commit suicide and committed outside in the manner suggested by the defence. The whole theory of the defence appears to be improbable to be accepted. If the theory propounded by the defence is rejected, it is still to be scrutinised how Tejraj met with his death. The burden lies always on the prosecution to prove the guilt of the accused. Falsity of the defence may be a circumstance, sometimes a strong circumstance, to be taken into consideration in establishing the guilt of the accused but conviction cannot be based only on the falsity of defence. It is always for the prosecution to prove its case and this may be by adducing either positive evidence or by establishing such circumstances against the accused that the Court is driven to the conclusion that it was the accused and the accused only who could be guilty of the crime. In this case, the prosecution has attempted to prove this by producing an eye-witness and he is Tara Chand (P. W. 11 ). As already mentioned, he stated that on the 10th of January 1962, at about 9 in the morning he was passing through the thoroughfare outside the Chowk of Genraram's house in village Jalaka when he heard Tejraj demanding his money from the appellant Gangaram. The latter said that he had no money at that time and that he would pay it later. Tejraj abused Gangaram for non-payment of his dues on which he said that he had no money at that time. He grappled with Tejraj and put his hand on his neck. At that point of time the witness left the village and went away. The witness is a resident of Jodhpur and he had gone to Jalaka to bring ghee for his master. He stated that he had first gone to Pipar to get ghee and not being able to procure it then went to Jaiaka. He had enquired for ghee at Jalaka from 2 or 3 persons but had not taken any ghee. He had not enquired the names of the persons from whom he had asked for the ghee. The witness stated that the entrance door of the house of Gangaram was towards the east but in his statement in the committing court, the witness was not able to state the direction. He was contradicted on another point. In the committing court the witness had stated that he had intervened between Tejraj and Gangaram while at the trial he denied to have had any talk with either Tejraj or Gangaram. At the trial the witness stated in the cross-examination that his brain was not working and his head was aching, a sort of statement which a false witness makes under stress of cross-examination. He also admitted that his house was in Pipar in a Mohalla 2 or 3 mohallas away from Tejraj's house. The evidence of this witness has been believed by the trial court but we are reluctant to place reliance on the evidence of such a witness for maintaining the conviction of the appellant. Having rejected the evidence of Tarachand we have now to examine whether the conviction of the appellant should be maintained on the circumstantial evidence established on record. Let us first mention the circumstances which, in our opinion, are established beyond any manner of doubt. Tejraj deceased had gone to the house of Gangaram at about 9 A. M. on the place of the incident to demand his money and had met Gangaram there. It is established that Gangaram had requested Tej Raj to grant some time but Tejraj was not willing to do so. It is established that sometime after Gangaram had gone to the house of Pusha and according to the evidence of Narain (P. W. 9) Gangaram had said there that a Mahajan had died at his house. The other witnesses have stated that after Gangaram had come a girl came and informed that a Mahajan was swinging. Even if their evidence is believed, the coming of the girl was merely a ruse to ward off suspicion falling on the appellant. No case of hanging in air is borne out by the medical evidence and the other circumstances of the case.
(3.) IT is further established on the evidence on record that soon after Pabu Ram (P. W. 4), Poosa (P. W. 7), Narain (P. W. 9) and Chela (P. W. 10) went to the house of Gangaram and found the dead body of Gangaram lying in the Chowk with the turban underneath it. IT is further established that the time when Tej Raj came to the house of Gangaram, Gangaram and his very young children were there and nobody came to that house up to the time the dead body was found out by these witnesses except Gangaram and the young children. It is also established that Gangaram himself went to the Police Station, Bilara to make the First Information Report (Ex. P. 1) in which he mentioned that Tejraj had committed suicide at his house. This is a written report and was written at 6. 00 P. M. on the date of the incident. Further, the defence theory that Tejraj deceased committed suicide by hanging in the air is altogether false and the ligature mark found on the dead body was the creation of some person, who was in the house of Gangaram during this interval. It is also established from the medical evidence that the condition of the dead body was consistent with the prosecution story of throttling. Now we have to see whether the chain of this circumstantial evidence established in the case is sufficient to hold that Gangaram and no other person was responsible for causing the death of Tejraj. The circumstances established in the case lead to the inference that on Tejraj's insistence for payment of his debt then and there Gangaram might have grappled with him and throttled him which resulted in his death. In order to escape his liability, it was Gangaram who gave out that Tejraj had committed suicide by hanging and even simulated the ligature mark on his neck. Gangaram alone was with Tejraj soon before his death occurred. In between the period after the arrival of Tejraj at the house of the appellant and the finding of the dead body by the witnesses named herein before in the chowk of the appellant came to the house of Gangaram. if the children are excluded. The chil-dren could not have caused the death of Tejraj. Gangaram has in his First Information Report and in his statement before the committing court tried to explain the death of Tejraj but this explanation to our mind is altogether false. On the other hand, we think that it was he who had simulated the ligature mark and had tried to give a false appearance to the crime. "the fabrication of simulated facts and appearances calculated to create alarm, or otherwise to give a delusive tendency and interpretation to inculpatory facts, is an artifice frequently resorted to, for the avoidance, neutralisation, or explanation of circumstances naturally presumptive of guilt; the resort to which is of the most prejudicial criminative tendency, inasmuch as it necessarily implies an admission of their truth, and a consciousness of the inculpatory effect, if uncontradicted or unexplained, of the facts which it thus seeks to divest of their natural significance. " (Wills Principles of Circumstantial Evidence, 7th Edition, Pages 151-152.) We have, therefore, no hesitation in coming to the conclusion that death of Tejraj was caused by Gangaram by throttling him. The next point to which we address ourselves is, of what offence the appellant is guilty. We are of the opinion that in the circumstances of the case, it cannot be held that Gangaram appellant had any intention of killing Tej Raj, or causing him such bodily injury as was likely to cause death. He must, however, be imputed with the knowledge that by throttling Tejran he was likely to cause his death. But the knowledge may not have gone to the extent that in all probability the death would be caused. We, therefore, hold that he is liable for an offence of culpable homicide not amounting to murder under sec. 304, Part Two IPC. The circumstances of the case are such that we cannot hold him guilty of murder under sec. 302 IPC. As a result of the aforesaid discussion, the appeals are partly allowed. Gangaram appellant is acquitted under sec. 302 IPC and his sentence of life imprisonment is set aside. Instead he is convicted under sec. 304, Part Two IPC and is sentenced to seven years' rigorous imprisonment. . ;