- (1.) This is a jail appeal filed by Ratta against the judgment of the learned Sessions Judge, Udaipur, dated 31st January, 1975 by which the appellant was convicted under section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. ICO/-in default of payment of fine to further suffer rigorous imprisonment for three months.
(2.) The incident that led to the prosecution of Ratta appellant may be briefly described as follows : Mst Shansi deceased was married to Ratta. After her marriage she lived with Ratta for some time but her relations with her husband were not cordial, as a result of which she frequently visited her parents at village Kolpura. About six months immediately preceding her death she was living with her parents. About 5 days prior to the "Dashera" festival which fell on 5th October, 1973 she was brought to the house of Ratta appellant by her father-in-law Uda who promised her parents that she would be treated with love and affection and would not be subjected to mal-treatment. About 5 days after her return to the appellant's house Uda went to village Kolpura, met her father Shri Chena and informed him that she had left the appellant's house and her whereabouts were not traceable. Uda asked Chena to find out Shanti but despite best efforts she could not be traced,
(3.) On 20th October, 1973, a be-headed dead body of a woman was seen by Nag Singh, P. W. 2 floating in a well known as Tedawala well near a water pond oi village Peepli. On seeing the dead body Nagsingh rushed to Tikam Singh and informed him about all that had been seen by him in the well. Thereupon a written report was sent to Police Station Deogarh through Puran Singh. The report was reduced to writing by Heera Lal P. W. 8. On receipt of the report Abhay Singh, Incharge Police Station, Deogarh deputed Bahadur Singh P.W. 5 to go to the spot for making an inquiry into the matter under section 174 Cr. P. C. Bahadur Singh visited the well and found that a be-headed dead body of a woman was taken out and placed on a cot. The dead body was identified by Chena to be of his daughter Mst. Shanti. Thereafter Bahadur Singh got the head of Shanti taken out of the well with the help of a bunch of hooks. Bahadur Singh prepared an inquest report upon the dead body and made a report Ex. P. 3 at Police Station Deogarh on the basis of which a criminal case under section 302 I. P. C. was registered and the investigation commenced. The dead body of Shanti was sent to Dr. Arun Kumar for post mortem examination which was performed by the said Doctor on 21st October, 1973 at village Peepli. The Doctor found that the dead body was under advanced stage of put refection and the skin was peeled off and there were maggots on the body. He noticed fracture of skull bone and in his opinion Mst. Shanti died of shock and hemorrhage on account of injury to brain and skull, stone was found tied on her body by a wire and her ordines. He further opined that possibility of her head being separated from the trunk by a sharp edged weapon and thereafter thrown in the well could not be excluded. According to him the fracture of the skull bone was sufficient to cause her death in the ordinary course of nature. In the course of investigation Ratta appellant was arrested on 21st October, 1973 vide memo of arrest Ex. P. 18. After his arrest he pointed out a place where blood was lying on the ground. Shri Udai Raj, S. H. O. took the blood stained earth into his possession. The appellant further gave the S. H. O. the information on 21st October, 1973, that he had kept concealed silver Kadulias in a field under the stones which were lying there. He further informed the S. H. O. that a sword had been hung by him inside his house and that he was prepared to get the Kadulas and sword recovered at his instance. The S. H. O. recorded the above information in a memo Ex. P. 21 and recovered two Kadulas and one sword at the instance of the appellant from the place disclosed by him in his information. On 30th October, 1973 the S. H. O. noticed that the clothes which the appellant was wearing on his body were stained with blood. Therefore, one Baniyan and Dhoti were taken off the body of Ratta appellant and sealed properly in the presence of the Motbirs. A bush shirt and another Dhoti and another sword were also seized and sealed by Udai Raj, S. H. O. at the instance of the appellant. These two articles were lying in the house . of the appellant and were suspected to have stains of blood on them. The father of Ratta appellant, namely, Uda also was arrested on 21st October, 1973, vide memo of arrest Ex. P. 19. At his instance also the S. H. O. recovered one half-pent from his house which contained some blood stains on it. Uda was wearing a bush shirt on his body which was taken off and seized by the S. H O. on 30th October, 1973 as it had some stains of blood on it. All these articles which were taken into possession by the police in the course of investigation were sent to S. P., Udaipur in a sealed condition for onward transmission to the Chemical Examiner, Jaipur. Ajab Singh, S. P., Udaipur sent the articles in the same sealed condition to Chemical Examiner on 26th December, 1973 through Kamala Ram P. W. 18. The Chemical Examiner upon analysis found that one Dhoti of Ratta appellant contained in packet Ex. 1 and other Dhoti contained in packet Ex. E. the stone and the clothes of the deceased contained in packet Ex. F and the sword contained in packet Ex. C and the blood stained earth and stone contained in packet Ex. H were positive for blood, Cuttings from Dhoti contained in packet E and sample of earth and strap-pings from stones contained in packet H were further found stained with human blood by the Serologist. The blood stains on other items were disintegrated and their origin could not be determined. 6. The S.H.O. collected other necessary evidence in the case and on completion of investigation filed a chargesheet against Uda and Ratta appellant in the court of Munsif Magistrate, First Class for the offence of murder. The learned Magistrate upon finding a prima facie case exclusively triable by a court of Session committed the appellant and his father Uda to the court of Sessions Judge, Udaipur for trial under section 302 I.P.C. and in the alternative under section 302 read with section 34 I.P.C. The learned Sessions Judge tried the appellant and his father for the aforesaid offences and came to a conclusion upon evidence adduced in the case that Ratta appellant only was guilty of murder of his wife. Consequently he convicted and sentenced Ratta appellant in the manner stated above and acquitted his father Uda of all the charges framed against him. Aggrieved by his conviction and sentence Ratta appellant has preferred this appeal through Jail authorities. 7. As the appellant was unrepresented by any counsel this Court appointed Shri Doongar Singh, Advocate as amicus curiae to argue the appeals on his behalf. 8. We have carefully perused the record and heard Shri Doongar Singh jtnicus curiae for the appellant and Mr. R. S. Acharya Public Prosecutor for the State. 9. It has been strenuously urged before us by Mr. Doongar Sinah that the Sessions Judge committed a grave error in holding Ratta appellant responsible for the murder of his wife. According to him there is no direct evidence to prove the connection of the appellant with the murder of Mst. Shanti and the circumstances established by the prosecution and relied upon by the Sessions Judge are wholly consistent with his innocence and are capable of being explained away on hypothesis other than those of his guilt. Mr. N.S. Acharya, Public Prosecutor on the other band urged that the circumstantial evidence led by the prosecution in this case unmistakeably pointed to the complicity of the appellant in the crime of murder of his wife and the learned Sessions Judge was justified in coming to a conclusion that no other person but the appellant was the author of the crime. 10. He have given out anxious consideration to the rival contentions. The case against the appellant no doubt depends on circumstantial evidence as no person has come forward to say on oath that he saw the appellant committing the murder of his wife and dropping her dead body in a well after severing her head from the trank Hence it has to be ascertained whether the circumstances relied upon by the prosecution are so closely connected with the fact in issue as to lead only to one conclusion that within all human probabilities the murder must have been committed by the appellant. 11. The circumstances proved on the record are enumerated below:- (1) Motive on the part of the appellant to kill his wife. (2) The appellant deliberately did not take any steps to trace the whereabouts of his wife Mst. Shanti after she was alleged to have gone away from his house. (3) A blood stained sword was recovered from the house of the appellant at the latter's instance and in consequence of his information recorded under section 27 of the Evidence Act. (4) A Dhoti of the appellant which he was wearing on his body was stained with blood Likewise a Dhoti recovered from his house at his instance was stained with human blood and the appellant could not afford reasonable explanation for the blood found on these two articles. (5) Two silver Kadulas which the deceased was wearing on her body at the time of her death were recovered from a field at the instance of the appellant and in consequence of his information which he furnished to the S. H. O, while in the police custody. (6) Recovery of blood stained stones and earth at the instance of tilt appellant. Now we take up ail these circumstances one by one for discussion to find out whether they are capable of supporting the only inference that the appellant is guilty of the crime of murder. 12. Motive;- The prosecution has led evidence to prove motive on the part of Ratta appellant to kill his wife. The motive alleged against the appellant is that he u-ed to treat his wife cruelly as a result of which she frequently left his house and preferred to stay with her parents It is further brought on the record that a few days before the occurrence she was brought back to the appellant's house by Uda upon an assurance that she would be treated in future with love and affection and would not be subjected to beating or cruel treatment. The prosecution has examined the parents of the deceased to prove these facts. Mst. Meera, mother of Shanti deceased stated in her deposition that the relations between Ratta appellant and Shanti were not cordial and the appellant used to beat Mst. Shanti and so this witness brought her daughter to her house on the day of Holi festival Meera further stated that Shanti deceased used to tell her that she was beaten by her husband and her husband sister and mother-in-law. In her cross examination Meera admitted that her daughter Shanti was not beaten in her presence but she saw blood stains on her body. Chena, father of the deceased, on the other hand gave an altogether different version in the trial court by stating that the appellant treated his daughter well and that his daughter did not make any complaint to him against the appellant. She merely informed him that her mother-in-law and her husband's sister used to quarrel with her Chena, however, stated in his cross-examination that his daughter was beaten by the appellant and his mother and so he brought her to his house on the day of Holi festival and kept her there for six months. From the evidence adduced by the prosecution this much is established that all was well between the deceased and her husband and her in-laws during her stay at her husband's house because if she had been treated with love and affection she would not have lived with her parents for six months immediately preceding the occurrence and would not have hesitated to come to her husband's house. But from these circumstances alone., it cannot be reasonably inferred that the relations between the husband and wife were so strained that the appellant tool to his head to put an end to the life of his wife and suddenly embarked on her murder There is no evidence on the record that the deceased was seen in the company of the appellant near about the well or in his house on the day when the murder tool place or the dead body was thrown into the well. Mst. Shanti was brought to the house of the appellant by her father-in-law Uda. The prosecution ought to nave led cogent evidence to prove that the appellant lived with his wife in the house after sir; was brought there by her father-in-law. In the absence of such evidence we are unable to hold that the appellant had a strong motive to kill his wife merely because all was not well between him and her during her stay at his house. 13. Apart from this, motive is not an ingredient of the offence of murder, It gives some assistance to the Court in arriving at a correct conclusion when there is no direct evidence to prove the guilt of the accused. Consequently we are of the view that conviction of the appellant cannot be based on the proof of motive alone in the absence of any other circumstantial evidence pointing to his guilt. 14. Failure on the part of the appellant to trace the whereabouts of his wife:- Another circumstance relied upon by the Sessions Judge in convicting the appellant is that he did not care to trace the whereabouts of his wife after she was alleged to have gone away from there. This circumstance is not established by any evidence on the record On the other hand, there is evidence that the appellant's father Uda visited the house of Ghent and informed him that Mst. Shanti had gone away from the house. He requested Chena to trace her whereabouts. It is not the case of the prosecution that the appellant when being questioned about the whereabouts of his wife gave evasive replies or refused to search her out. The parents of Shanti deceased clearly stated m court that Uda head come to their house and informed them about sudden disappearance of Mst. Shanti deceased from his house. In view of these facts it cannot be safely held that the appellant's conduct was such as would lead to an inference that he deliberately tailed to take steps to find out his wife. 15. Recovery of blood stained sword:- It is no doubt true that a sword was recovered from the house of the appellant inconsequence of his information which he furnished to Shri Udai Raj, S.H.O. while in the police custody. But this recovery is of no consequence as the prosecution could not prove that it was stained with human blood. The report of the Serologist disclosed that blood stains on the sword were disintegrated and their origin could not be determined. In the absence of any proof that the sword was stained with human blood, it is very difficult to hold that this very sword was used by the appellant in committing the murder. 16. Recovery of blood stained Dhoties:- The prosecution has led evidence to prove that Ratta appellant was wearing one Dhoti and one Baniyan on his body at the time of his arrest. The S. H O. did not notice blood stains on these clothes at the time when the appellant was arrested. He later on found stains of blood on these clothes on 30th October, 1973. So these clothes were taken off his body and sealed properly in the presence of the Motbirs. The recovery of these clothes is proved by the evidence of the S. H. O. and the Motbir but these clothes were not found stained with human blood. The Serologist clearly mentioned in his report Ex. P. 25 that blood stains on Dhoti marked A. 1 by the Chemical Examiner were disintegrated and their origin could not be determined. The Baniyan was not sent to the serologist as it was negative for blood. Hence recovery of these clothes is of no material significance and does not provide an additional link in the chain of the evidence against the appellant. However, another Dhoti was recovered upon search from the house of the appellant at the latter's instance. This Dhoti marked P. 1 by the Chemical Examiner was found stained with human blood by the Serologist but this Dhoti was not recovered by the S. H. O. in consequence of any information supplied to him by the appellant while in the police custody. There is evidence on the record that the house from which this Dhoti was recovered was inhabited not only by the appellant but also by his father, mother and other family members Hence it cannot be said with reasonable certainty that the Dhoti found stained with human blood was recovered from the exclusive possession of the appellant. Besides there is no proof on the record that this Dhoti belonged to the appellant and he used to wear it on his body. Possibility of this Dhoti having been kept in the house by other members of his family could not be ruled out altogether. Hence this circumstance is not of conclusive tendency and in the absence of any other evidence does not necessarily lead to inference that the Dhoti belonged to the appellant and that he had kept it in his-house. 17. Recovery of Kadulas:- There is reliable evidence on the record that the two silver Kadulas were discovered concealed in a field under the stones lying therein. It is further established that the recovery of these silver ornaments was made at the instance of the appellant and in consequence of his information which he furnished to the S. H. O. while in the police custody. These ornaments were not found stained with blood or human bloods. The prosecution has led further evidence to prove that these ornaments were worn by the deceased when she was brought by Uda to his house about 5 days prior to the occurrence but the evidence is far from being satisfactory. Baji P. W. 3 is the mother-in-law of Shanti deceased. She namely stated that Shanti used to wear silver Kadas on her legs but the silver Kadas were found missing from the legs when her dead body was taken out of the well. Mst. Baji, could not say that two silver Kadas recovered from the field at the instance of the appellant and in presence of the information were the same ornaments which the deceased used to wear on her body. She categorically denied to identify them to be the Kadulas of the deceased. Hence her evidence is of no help to the prosecution. Another witness is Meera, mother of Shanti deceased. She no doubt, stated that silver Kadulas 1 and 2 belonged to the deceased which she was wearing on her legs at the time when she was taken by Uda from her house. In her cross examination, however, she admitted that silver ornaments like Kadulas Articles 1 and 2 are available in the market and she cannot identify them if they are mixed with 5 or 7 other Kadulas. In this manner the evidence of this witness also does not conclusively establish that the silver Kadulas Articles 1 and 2 which were discovered concealed under the stones at the instance of the appellant and in consequence of his information were the same Kadulas which the deceased was wearing at the time when she had left her patented house. Another witness is Chena P. W. 10, who is the father of die deceased. He did not say a single word about the silver Kadules Articles 1 and 2 in his statement at the trial. The other witness examined by the prosecution is Uda P. W. 11 father of the appellant, He also could not say that Kadulas marked Articles 1 and 2 were the same Kadulas which Shanti deceased used to wear. He no doubt stated that he had purchased a pair of silver Kadulas from Ghisulal at the time of the marriage of the appellant, but he expressed his inability to say that silver Kadulas recovered by the police were the same Kadulas which he had purchased from Ghisulal and which were worn by the deceased. Likewise Ranglal P. W. 16 merely stated that silver Kadulas marked Articles 1 and 2 were prepared by him for some person at the instance of Ghisulal's sister's son Babulal and that he handed over these Kadulas to Ghisulal. In his cross examination this witness admitted that 'Kadulas' like Articles 1 and 2 are prepared by other goldsmiths also. He could not say that he had prepared these Kadulas for Uda father of the appellant or that Ghisulal gave these Kadulas to Babulal or to Uda father of the appellant in his presence. Curiously enough neither Ghisulal nor Babulal has been examined by the prosecution at the trial to prove that these very Kadulas were not prepared by them for Uda father of the appellant and they handed over them to Uda. Consequently we are of the opinion that there is no reliable evidence on the record that the two silver Kadulas Articles 1 and 2 which were discovered concealed under the stones at the instance of the appellant and in pursuance of his information were the same ornaments which the deceased was wearing on her legs at the time when she was brought back to the appellant's house by her father-in-law Uda. Hence the recovery of silver Kadulas is not an incriminating circumstance against the appellant and does not in any way connect with the murder of his wife Shanti. 18. Recovery of blood stained earth and stones:- Another piece of circumstantial evidence is the recovery of blood stained earth and stones at the instance of the appellant. There is evidence on the record that the appellant took Udairaj, S.HO. along with Prem Singh and Heera Lal Motbirs to a place near Naya Talab and pointed out blood stained earth and some stones which were taken into possession and sealed properly by the police. The sample of earth and the stones were found stained with human blood by the serologist as is evident from his report Ex. P. 25, The recovery of these articles was not made in pursuance of any information furnished by the accused to the S.H.O. While in the police custody. It is possible that the appellant might have known some how that blood was lying on the earth and the stones. There is no evidence on the record that he murdered Mst. Shanti at that place and as a consequence of the murder, the earth and the stones were stained with human blood. Hence this circumstance also does not prove the complicity of the appellant in the crime of murder. 19. No other incriminating circumstance has been brought on the record and relied upon by the Sessions Judge in convicting the appellant. Hence upon a careful review of the entire evidence on record we are clearly of the view that the circumstantial evidence adduced by the prosecution is not of such a character as is consistent only with the guilt of the appellant. The circumstances relied upon by the Sessions Judge do not show that within all reasonable probability the murder of Shanti must have been committed by the appellant. The circumstances may raise some suspicion against the appellant but suspicion cannot be a valid substitute for proof in a criminal case. 20. The result of the above discussion is that we accept the Jail appeal filed by Ratta appellant, set-aside his conviction and sentence of the charge under section 302 I.P.C. The appellant is in Jail. He shall be set at liberty forthwith if not required in connection with some other case. Sd/- K.D. Sharma, J., Sd/- S.N. Deedwania, J. Appeal allowed - accused acquitted.;