VERMA, J. - (1.) THIS appeal is directed by Nemi Chand and his mother RAm Pyari against the judgment and order dated 27. 11. 1993 passed by learned Addl. Sessions Judge No. 1, Jodhpur whereby the appellant Nemi Chand has been convicted to undergo life imprisonment under Sec. 302 of the Indian Penal Code (for short as "IPC") with a fine of Rs. 2,000/- and in default of payment to further undergo 6 months 'rigorous imprisonment and also to undergo 3 year' rigorous imprisonment with a fine of Rs. 2,000/- and in default of payment to further undergo 6 months' rigorous imprisonment under Sec. 498a of the IPC. Smt. Ram Pyari has also been convicted under Sec. 498-A IPC to undergo 3 years' rigorous imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo 6 months' rigorous imprisonment.
(2.) THE facts as per the prosecution case are that on 14. 7. 90, Ghanshyam had lodged a report as Ex. P. 6 stating therein that his sister was married to appellant Nemi Chand son of Sh. Jagdish on 27. 6. 89 in accordance with the Hindu Rites. After sometime of the marriage, his sister used to be harrassed by her mother-in- law and her husband Nemi Chand on the ground that she had brought very less dowry and they had started giving troubles to her. Her sister had informed them against the behaviour of her inlaws through her letters and also on her visit to village Jetaran Nemi Chand also used to give threats by writing letters to the fact that he can do anything and the consequence will be bad and that the parents of Mst. Seni Devi will have to bear the consequences. THE mother-in-law also used to give threat that Nemi Chand is her son and she could get doen anything from him. It was further alleged in the FIR that on 3/7/1990, Nemi Chand, appellant had come to village Jetarn, accompanied by some of his relatives and he had some discussions. He had also given a threat that the complaint should go to the village Hariyadhana alongwith him and should talk to his mother, otherwise the result will be very had. On the next day i. e. on 4/7/1990, at about 1. 30 A. M. in the morning hours, father in laws of his sister accompanied by Magji Nai of village Ranshi had come to his house on jeep and told that Mst. Seni Devi had threatened that she would commit suicide by jumping in the well. After being told so, he was alarmed in view of the previous attitude of the family of her-inlaws i. e. mother-in-law, brother-in-law (Devar) and husband. His brother Sampat and a neighbour Govind Das went alongwith them in the samp jeep and found his sister Mst. Seni Devi lying dead at their residence. THEy started weeping, as they were least expecting that Nami Chand, the mother-in-law of the sister, the sister-in-law Santosh, and brother-in-law Manohar would do such a henious crime as to kill Seni Devi. On the above facts, an FIR was registered under Secs. 498a and 302 IPC against the accused persons on the registration of the FIR, bearing No. 105/14. 7. 90 (Ex. P. 21) and after registration of the FIR, statements of the witnesses were recorded, post mortem was got conducted and the accused were ultimately challaned under Secs. 302, 498a and 304-B of the Indian Penal Code. The accused had denied committing of the offences. The prosecution examined as many as 21 prosecution witnesses. The statements of accused persons under Sec. 313 of the Criminal Procedure Code were recorded. The accused had also produced two DW's i. e. Rakesh Agarwal (DW1) and Jagdish (DW 2 ). Ultimately, the trial Court vide its order dated 27. 11. 1993 had convicted the appellant Nemi Chand under Secs. 302 and 498-A IPC and Smt. Ram Pyari, under Sec. 498-A IPC only and were sentenced, as already narrated above. Smt. Ram Pyari was acquitted of the charges under Secs. 302 and 304-B IPC after giving her beneift of doubt. Accused Manohar, brother of the appellant were acquitted of the charges under Secs. 302, 498-A and 304-B of the Indian Penal Code after giving him benefit of doubt. The appellant Nemi Chand was acquitted of the charges under Sec. 304-B of the Indian Penal Code. There is no counter appeal by the State against any of the accused persons who have been acquitted of the charges framed against them. It is admitted that the death had taken place in the unnatural way, almost after a one year of the marriage as to bring the offence under Sec. 498-A IPC or under Sec. 304b. It was necessary for the provision to prove that the death had taken place because of the cruelty and because of the demand of dowry. It has been stated in the medical evidence by way of statements of Dr. S. R. Choudhary, PW 9 and Dr. Kailash Narayan, PW 10, after conducting the post mortem of the deceased that the death had been caused because of strangulation. The prosecution had produced as many as 21 witnesses. PW 1 Kailash Chand is witness of the spot inspection (Ex. P. 1 ). The star witness as per the prosecution case is PW 2 Ghanshyam Ram, brother of the deceased who had deposed about the relations between the parties in a similar manner as has been narrated above in the FIR. PW 3 Moda Ram is a signatory of the memos Ex. P. 2, prepared by the Magistrate and even memo Ex. P. 3 as well of Panch-Nama of the dead-body (Ex. P. 4 ). Similarly Sumer Singh (PW 16) is a witness to Ex. P. 2, P. 3 and P. 4, the memos prepared by the police after visiting the place. PW 20 Shelendra Kumar, ACM, Bilara had visited the site on 5. 7. 90 by going to village Hariyadhana and had inspected the hut of Manohar and had prepared Ex. P. 2, Ex. P. 3 and Panch-name of the dead body Ex. P. 4 and had also got post mortem conducted vide Ex. P. 9, prepared the site plan Ex. P. 22. This witness PW 20 has also admitted that at the time of preparing the memos, aforesaid. Ghanshyam, brother of the deceased had not mentioned any complaint against the inlaws. PW 18 Om Prakash had taken the photo graphs Ex. P 14 to Ex. P. 20. PW 20, the Magistrate in Ex. P. 2 after inspection on 5. 7. 90 had found that the dead body of deceased Seni Devi was lying on the cot and roof of the hut of Manohar was covered by "balies" and the height of the roof was aobut 9 fit. By the side of cot, one rope of the length of about 33 ft. was also lying. There was no knot on such rope. Manohar has told this witness that deceased Seni Devi had hanged herself with this rope by typing it with the "balies" of the roof and she had committed suicide. Ex. P. 3, mentioning the condition of dead body, was prepared and it was found that the mouth was open. There was clotted blood on the nose. There were abrasions on the right and left side of the neck. There was bluish mark on the chin, the skin of the little finger of left hand of the deceased, had also come out. At the time of preparation of Panch-nama, the witnesses on the panch- name had also expressed their opinion about the suspicious circumstances resulting into the death of Seni Devi. Thus, facts to lead to the conclusion that the death of Seni Devi was in unnatural circumstance. The question arises, whether the death had occurred because of committing of suicide by way of hanging by tying the rope with ballies of the roof which does not bear any knot or it is a case of murder. For the reason that there is no eye witnesses, and also for the reason that in the house where the death of the lady had taken place, there were 4 persons staying in the house i. e. Father in law, Mother-in-law. Manohar brother-in-law and husband, who is as employee of the Railway and posted. out.
(3.) THE trial Court had proceeded against three accused persons. Out of these three accused persons, two accused persons Manohar, brother and Ram Pyari, mother of the accused No. 3 i. e. appellant were acquitted of the charge of Sec. 302 IPC. THE main allegation of, so called, previous alleged beating and harassment to the deceased was mainly attributed to Manohar, accused who had been acquitted by the Trial Court of the charges under Secs. 302 and 498-A IPC. THE Mother-in-law has already been acquitted of the charge under Sec. 302 IPC, but has been convicted under Sec. 498- A IPC. All the accused had been acquitted of the charge of Sec. 394-B IPC. All three persons were being charged under Sec. 302 IPC, who were amongst the occupants of the house and nothing has been attributed to any single accused for committing the murder, acquitting of the two accused out of three and convicting the appellant only, the question arises whether on the evidence produced or the circumstances narrated by the prosecution, is it possible to uphold the conviction under Sec. 302 IPC in regard to the appellant? THE main prosuection witnesses relied upon by the prosecution and the Trial Court are Ghanshyam, complainant (PW 2), brother of the deceased, Bhawri (PW 13), mother of the deceased, Amba Lal (PW 14), father of the deceased and PW 15 Trishla and PW 17 Sawar Lal Joshi. THE documents relied upon by the Trial Court are the letters Ex. P. 8 and Ex. P. 9, said to have been written by the deceased and some other letters produced in defence. The learned counsel for the appellant has submitted that the story of the prosecution is not credit worthy and does not repose any confidence (ii) that it is a case of suicide and not of homicidal murder (iii) FIR itself is delayed for about 10 days (iv) no circumstance had been brought on record to show any cruelty or demand of dowry by the appellant (v) as the main allegations of cruelty are levelled against the Mother-in-law and Manohar, brother-in-law, if at all there was any cruelty, have been acquitted, then could the appellant be convicted for murder. The medical evidence does not positively prove the murder, but points out to suicide. It is true that PW 20 Shelendera Kumar had stated in the examination before the court that he had recorded the statements of number of witnesses while conducting the proceedings under Sec. 176 Cr. P. C. , but they are not on the record of the Trial Court. We had directed the counsel for the respondent/state to produce the record relating to proceedings under Sec. 176 Cr. P. C. After going through the report and the statements, it is found that there was an effort made on the part of accused to show that the deceased had actually hanged herself. However the report prepared by the Magistrate under Sec. 176 Cr. P. C. proceedings was against the accused persons. ;