ARORA, J. - (1.) THIS appeal is directed against the judgment dated 2-6-87, passed by the Additional District and Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge convicted the accused-appellants for the offences under Sections 302/34 and 201/34 I. P. C. and sentenced each of them to undergo imprisonment for life and a fine of Rs. 5000/- each and in default of payment of fine further to undergo six months rigorous imprisonment for the offence under Section 302/34 I. P. C. and three years' rigorous imprisonment and a fine of Rs. 1000/- each, and in default of payment of fine to further undergo three months' rigorous imprisonment for the offence under Section 201/34 I. P. C. Both the sentences were ordered to run concurrently.
(2.) THE appellants were tried by the learned Additional Sessions Judge No. 2, Hanumangarh, for the offences under Sections 302/34 and 201 I. P. C. THE case of the prosecution is that deceased Smt. Shakuntla-the sister of Babu Ram was married with accused Satya Bhagwan two years before the date of the incident. It was agreed before the marriage that the girl-side will spend about Rs. 1,00,000/- but they actually spent Rs. 60,000/ -. For the remaining amount of /rs. 40,000/-, a grievance was raised by the accused -side and the treatment of Satya Bhagwan, Tejbhan and other members of the in-laws of Smt. Shakuntla were not cordial with her. Smt. Shakuntla was given beatings by the accused. About six months before the date of the incident, Smt. Shakuntla was turned-out from the house after giving beatings. A Panchayat was held and Bhoj Raj and Banshi Dhar were sent at the shop of the accused for reconcilliation and an assurance was given that Smt. Shakuntla may be taken back and they will made arrangement for the remaining amount of the dowry. THEy agreed to that and Smt. Shakuntla was sent to her in-laws house. On the day of Rakshabandhan, Atma Ram-the brother of deceased Shakuntla went to the house of the accused and on that day Shakuntla informed her brother Atma Ram to arrange the remaining amount of Rs. 40,000/- otherwise the accused would kill her. Atma Ram told her sister that he would pacify the accused. On 6-9-85, the accused first committed the murder of Smt. Shakuntla by strangulation and thereafter, after sprinkling kerosene on her, lit the fire. Accused Tejbhan thereafter gave the information Ex. P. 14 at Police Station, Hanumangarh Junction that Smt. Shakuntla D/o (late) Suraj Mal and wife of Satyabhagwan, has committed suicide at about 5. 00 p. m. and at that time they were at their shop and were informed by the neighbourers that a fire had taken place in their house. This report made by Tejbhan was registered under Section 174 Cr. P. C. and Pw 7 Mohan Singh reached at the place of the incident and started inquiry. During the course of inquiry, it was revealed that it is not a case of suicide but the accused has committed the murder of Smt. Shakuntla and after committing her murder she was put to fire. THE accused, after lodging the report, made the disclosure before PW 1 Banshidhar, PW 2 Atma Ram and PW 3 Babu Ram that they have committed the murder of Smt. Shakuntla. PW 3 Babu Lal Gupta the another brother of deceased Smt. Shakuntla thereafter lodged an F. I. R. (EX. P. 16) at Police Station, Hanumangarh, on the basis of which the investigation started, the accused were arrested and the charge-sheet was submitted against the accused-appellants. The prosecution, in support of its case, examined seven witnesses. The accused, in their defence, examined eight witnesses. The case of the accused, in defence, was that they were not present at the house when the incident took place and there was no demand of dowry by them and the deceased was a lady of easy virtues and had illicit relations with other persons as accused Satya Bhagwan-the husband of the deceased was impotent. The learned trial Court did not believe the defence version. He, also, did not believe the witnesses produced in defence and by his judgment dated 2-6-87, convicted and sentenced the accused- appellants as stated above. While convicting the accused-appellants, the learned trial Court placed reliance over the extra-judicial confession made by the accused before PW 1 Banshidhar, PW 2 Atma Ram and PW 3 Babu Ram. The learned trial Court, also, believed the medical evidence regarding the commission of murder by the accused and thereafter putting the deceased to fire. The motive suggested by the prosecution for the commission of murder of Smt. Shakuntla was, also, believed by the learned trial Court. The other circumstances, which were relied upon by the prosecution and believed by the learned trial Court were that the conduct of the accused before and after the incident was not natural and they lodged a false report at the Police Station in order to save themselves and did not take any steps to provide medical aid/help to deceased Smt. Shakuntla nor they tried to extinguish the fire and the dead body was burning till the police reached there. It is against this judgment convicting and sentencing the appellants that the appellants have preferred this appeal. It is contended by the learned counsel for the appellants that (i) there is inordinate delay in lodging the F. I. R. (EX. P. 16) by PW3 Babu Ram, which remained unexplained and it is the result of concoction and deliberations and this F. I. R. cannot be read in evidence as it is hit by the provisions of Section 162 Cr. P. C. ; (ii) the inquest report, the site inspection memo and the site-plan prepared by the in- vestigating officer during the inquiry under Section 174 Cr. P. C. do not disclose the extra-judicial confession allegedly made by the accused-appellants and the commission of murder of Smt. Shakuntla by the accused, which clearly shows that till the time these documents were prepared and the inquest report was sent to the doctor when the case was referred for post-mortem examination, the facts regar- ding making of the extra-judicial confession by the accused was not brought to the notice of the investigating officer and the story of extra-judicial confession allegedly made by the accused, has been fabricated thereafter; (iii) the investigating officer did not inform the Executive Magistrate empowered to hold inquest and no inquiry or inquest was held by the Magistrate and the inquiry, therefore, stands vitiated for the non-compliance of the provisions of Section 176 (3) and (4) of the Code of Criminal Procedure; (iv) the extra-judicial confession, alleged to have been made by the accused to the prosecution witnesses, is a piece of fabrication and it is untrustworthy; (v) there was no motive with appellant Smt. Vidhyawati and Tejbhan in the demand of dowry and they were not at the house at the time when the inci- dent took-place; (vi) the investigation is a tainted one and the investigating agency, under the influence of some political leaders, proceeded with to falsely implicate the appellants; (vii) there are material contradictions and improvements in the statements of the prosecution witnesses and they have tried to falsely implicate the accused-appellants with the crime; (viii) the trial Court has not taken into conside- ration the circumstance that the deceased was issued-less lady and her husband was impotent, which actuated her to commit suicide; and (ix) the ingredients of the offence under Section 201 or 201/34 I. P. C. have not been proved against the appellants. Learned counsel for the appellants, therefore, submitted that the appellants have been falsely implicated in this case and they deserve to be acquitted as the prosecution has failed to prove the case against the appellants beyond a reasonable manner of doubt. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and submitted that the appellants have been rightly convicted and sentenced by the learned trial Court and no case for interference is made-out. Before considering the submissions made by the learned counsel for the appellants, we would first like to see the nature of the evidence produced by the prosecution in support of its case. There is no eye witness of the occurrence. The case of the prosecution mainly rests upon the circumstantial evidence. It has, therefore, to be seen: whether the prosecution has been able to prove that the chain of circumstantial evidence is complete and leave no reasonable ground to a conclusion in consistent with the innocence of the accused and within all human probabilities show that the accused are the perpetrators of the crime; and whether all the circumstances have been fully established and the circumstances so established are conclusively of the nature to prove the guilt against the accused-appellants?
(3.) THE prosecution, during the trial, produced seven witnesses. This Court, on 11-9-91, considered it proper to examine the two other Doctors who were the Members of the Medical Board any by the order dated 14-1-93, directed the trial Court to record the evidence of Dr. B. C. Sodhi, Dr. K. C. Mittal and Dr. Narendra Godara. In pursuance to this order, the learned trial Court recorded the statements of PW 8 Dr. K. C. Mittal and PW 9 Dr. Narendra Singh Godara. THE statement of Dr. B. C. Sodhi (PW 6) had already been recorded by the trial Court during the trial and, therefore, the accused were given an opportunity to cross-examine this doctor, who was cross-examined by the learned counsel for the accused in the trial Court. Pw 1 Banshidhar, who is the uncle of deceased Smt. Shakuntla has stated that the marriage of hisniece Smt. Shakuntla took place with accused Satya Bhagwan about 2. 5 years before. About six months before the date of the incident, Babu Ram called him and Bhoj Raj and informed them that Smt. Shakuntla has been turned-out from the house by Tej Bhan, Satya Bhagwan and their mother after giving her beatings. On inquiry, it was revealed that she has been turned- out from the house as the accused are demanding Rs. 40,000/- because it was agreed that they will spend Rs. 1,00,000/- in the marriage but they spent only Rs. 60,000/ -. After ten- fifteen days of this incident, he, Bhoj Raj and Babu Ram came to the shop of Satya Bhagwan and Tejbhan at Hanumangarh Junction. Babu Ram, in their presence, requested the accused to keep Smt. Shakuntla with them and assured that they will finalise the matter thereafter, whereupon accused Tejbhan and Satya Bhagwan became angry and said that it will only after the payment of the balance amount of Rs. 40,000/- that the Shakuntla can live with them in peace otherwise she will be given the same treatment. Babu Ram thereafter agreed to make payment after sometime because at that time he was not having this amount and requested the accused to keep Smt. Shakuntla peacefully. The accused-party did not come to take Shakuntla and asked Babu Ram to send her and Babu Ram thereafter sent Shakun- tla alongwith his brother Atma Ram and on the day of Rakshabandhan, Babu Ram and Atma Ram came to their shop and informed them that they are coming from the in-laws' house of their sister Shakuntla after getting the Rakhi tied and informed them that Shakuntla told them that the behavior of the accused has not changed. Thereafter he consoled them and said that he would try to pacify the accused. After six-seven days of that incident, a day prior to Janmasthami, he was working in Mahaveer Dharamshala and after completing his work he was going to his house. In the way, near Gurudwara; accused Tejbhan met him and informed him that he, Satya Bhagwan and their mother have committed the murder of Smt. Shakuntla and after committing her murder, sprinkled kerosene oil on her and put her to fire and sought his help in pacifying Babu Ram and to save him. He stated that they have done a bad work but anyhow he is calling Babu Ram. Thereafter he went to his house, called Bhoj Raj and narrated him the incident. Thereafter Atma Ram was called and the incident was narrated to him, also, and he was asked to call Babu Ram. Atma Ram went to call Babu Ram and after sometime Babu Ram and Atma Ram came on a jeep. He narrated the incident to Babu Ram, also. Thereafter, he, alongwith Bhoj Raj, Babu Ram and Atma Ram went on that jeep to Hanumangarh Junction and reached to the house of accused situated in Indira Colony. There Babu Ram was called inside by accused Tejbhan and Satya Bhagwan and before him, all the three accused confessed that they have committed the murder of Shakuntla and requested to be excused. The naked dead body of Shakuntla was lying inside the room situated on the first floor and it was burning. The police extinguished the fire. The police came there, inspected the site and prepared the Panchnama - A- Lash and various other memos and while preparing the inquest report, he gave his opinion that it was a case of murder and the body has been put to fire after commission of the murder. In the cross-examination, this witness has stated that he disclosed to the police that the extra- judicial confession was made by all the three accused before him and he, also, heard the disclosure made by these three accused to Babu Ram but if it does not find mention in his earlier statement EX. D. 1 then he can have no say but the fact is that he stated so to the police. He has, also, admitted in the cross-examination that the extra-judicial confession was made by accused Tejbhan before him at the road- side and he did not enquire from him how they killed Shakuntla. He has, also, stated in the cross-examination that he gave his opinion that the accused first committed the murder of Shakuntla and thereafter put her to fire on two grounds; firstly, because the right thumb of the accused was tied with the gold chain and ,secondly, the accused has made the extra-judicial confession before him. Similar is the statements of Pw 2 Atma Ram and Pw 3 Babu Ram. They have specifically stated regarding making of the extra-judicial confe- ssion by all the three accused-appellants before Babu Ram. Pw 4 Mani Ram is the Photographer, who took the photographs of the deceased. Pw 5 Ramjas was the Incharge of Police Station, Hanumangarh Junction, when the report EX. P. 14 was produced by accused Tejbhan at 7. 00 a. m. The report was registered under Section 174 Cr. P. C. and he, also, registered the F. I. R. EX. P. 16 on the basis of the written report submitted by Babu Ram Gupta which was sent to him through the Deputy Superintendent of Police, Hanumangarh, on 8-9-84 and thereafter the investigation was done by Mr. Mohan Singh, the Deputy Superintendent of Police, Hanumangarh. Pw 7 Dr. B. C. Sodhi was the Junior Specialist in Surgery, posted in Government Hospital, Hanumangarh, who, along- with Dr. K. C. Mittal and Dr. N. S. Godara, conducted the post-mortem on the dead body of Smt. Shakuntla. According to him, deceased Smt. Shakuntla had burn injuries on almost all the parts of her body. Ligature marks were not seen on the neck on account of burning, blood-clotts were found in the thyroid cartrilege and larynx and right cornuae of the hyoid bone was, also, found fractured. No other injuries were found on the dead body of Smt. Shakuntla. The cause of death, according to this witness, was asphyxia due to strangulation. The burn injuries were post-death. The evidence of Pw 8 Dr. K. C. Mittal and Pw 9 Dr. Narendra Singh Godara, who were the Members of the Medical Board, were, also, recorded by the learned trial Court on the directions of this Court during the pendency of the appeal. They have, also, stated that blood-clotts were found in the thyroid cartrilege and larynx and under the skin; right cornuae of the hyoid bone was fractured and the cause of death of Shakuntla was asphyxia due to strangulation and the burn injuries were the post-death as there was no blisters found on the dead body. Pw 7 Mohan Singh was the Deputy Superintendent of Police, who conducted the investigation and presented the challan. ;