JUDGMENT K.K. Misra, J
1. The present appeal arises out-of the judgment and order dated 24.10.81 passed by Sri K.K. Snvastava, IV Additional Sessions judge. Fatehpur in S.T.No.549 of 1980. convicting the appellants Dwarika Prasad and Ramadhar Pandey under Section 302 I.P.C. read with Section 34 I.P.C .and sentencing (hem. there-under to life imprisonment. Both the appellants were further convicted under Section 201 I.P.C. and sentenced to undergo five years R.I. Both the sentences were ordered to run concurrently. Both the accused appellants are real brothers
2. At the outset, it is made clear that in the above noted case F.I.R. lodgeed by the complainant P.W.5 Babu Lal was not accepted by the police. He had to make an application to Superintendent of Police and in that application which is Ex Ka-2 he interalia. stated that he had given the threatening' letter of his son-in -law (accused Ramadhar Pandey) dated 16th June received by him on 20th June Investigating Officer on 13rh July. 1980 which purposely he did not place on record and this prejudiced the prosecution
3. The prosecution case, as emerged during trial; was as follows:-
The deceased Smt. Ghanda Devi daughter of P.W.5. Babu Lal was married with accused appellant Ramadhar Pandey. four years prior to the incident. accused appellant Ramadhar Pandey was a teacher at varanasi. The treatment accused Ramadhar Pandey towards his wife Smt. Chanda Devi, deceased. harsh and she was being ill-treated by him who was said to be involved in of was love affair with some other girl. P.W.5 Babu Lal also received a letter from the accused Ramadhar Pandey sent to him from Varanasi intimating him about the evil consequences to be suffered by his daughter Smt. Ghanda Devi. P.W.5 Babu Lal had gone for the Bidai of his daughter on 4.7.1980 but his son-in-law, Ramadhar Pandey accused refused to send his wife Smt. Chanda Devi with his father-in-law P.W.5 Babu Lal. Smt. Chanda Devi was allegedly imurdered by strangulation on 11.7.1980 at about 4.00 A.M. at the house of the accused persons. A report Ext. Ka -13 was sent by the accused Dwarika Prasad to the S.O. of P.S. Khaga wherein it was mentioned that the deceased was preparing tea on Stove on 11.7. l980 at 4.00 a.m. as the accused appellant Ramadhar Pandey was to leave for Varanasi in the early morning. She was wearing Terricot Sari. Her Sari caught fire and she started : burning. Smt. Chanda Devi cried for help. Nobody was present there at that time as his brother Ramadhar Pandey had gone to ease himself. By the time Ramadhar Pandey returned after easing himself, Smt. Chand Devi had died after receivinig burn injuries and her dead body was lying inside the room. It was also mentioned that at that time he himself Dwarika Prasad accused) was lying outside the door of the house and his wife Smt. Shakuntala as also his mother Smt. Raj Kumari had also at that time gone out to ease themselves. On receiving the information,, P.W.7 Sri Lal Singh Chandel, S.I. proceeded the place of incident with Constables. He found the dead body inside a room of the house of the accused persons. He prepared inquest report of the dead body and after completion of necessary formalities sent it for post mortem.
4. The post mortem examination, on the dead body of Smt. Chanda Devi was done by P.W.4 Dr. J.S. Rai, on 12.7.80 at 2.30 P.M. He assessed the age of the deceased about 22 years and found that about 1-1/2 day had passed since she died He found the following ante mortem injuries on her body:
1. Contusion 4 3/4 " X 3 ".from and side of middle of neck. Extravasation of blood underneath.
2. Contusion 4 1/2 " X 2 3/4 ",front of right shoulder joint and upper arm asation
3. Contusion 4 1/2 " X 1/2'", around the upper part of leg just below the right joint.
4. Contusion 2 " X 1 ", left side of head. 1 1/2" above left ear.
5. He further found the following post mortem injuries on the dead body of Smt. Chanda Devi:
Post mortem burns all over the body second and third degree, except belowboth knees, part of back at places. thigh and buttock, left arm and upper part of elft forearm, part of right buttock where fourth and fifth degree burns were found.
6. On internal examination, trachea was found deeply congested. Bloody froth was found present. Hyoid bone was found fractured. Both the lungs, were found congested. The small intestine and the stomach were found empty, The large intestine were found full of faecal matters and gases. The uterus was found empty. The brain was also found congested. In the opinion of the Doctor, the death Was caused due to strangulation.
7. After completing the investigation P.W. 7, I.O., Lal Singh Chandel submitted charge sheet against the accused appellantls under Section 302/34 I.P.C. and 201 I.P.C.
8. At the trial, the prosecution examined P.W.I Mool Chandra, P.W.2 P.W. 3 Daya Shanker, P.W. 4 Dr. J.S. Rai, P.W.5 Babu Lal, P.W 6 Constable Kaliniuddin and P.W. 7 Lal Singh Chandel.
9. The accused-appellants pleaded not guilty at the trial and claimed false implication. The accused Dwarika Prasad in his statement under Section 313 Cr.P.C. stated that the report sent by him to, P.S. Khaga contained correct facts Ramadhar Pandey stated that his father-in-law Babu Lal ( father of the deceased)} had taken money from him on several occasions and at the time pf the marriage of his younger daughter Mithila he was further demanding Ks.1000'- which he could not pay. not pay. Being annoyed, his father-in-law implicated him falsely. He also seated that his wife was suffering from epilepsy and he got her treated at several places. He also produced Dr. B.S. Saxena as DW 1 in defence to show that the deceased was suffering from epilepsy and she was being treated by him.
10. The trial court found the case of the prosecution established against the accused appellants and convicted and sentenced them asstated above.
11. We have heard Sri D.N. Wali, learned counsel for the appellants and learned A.G.A. Sri Sudhir Kumar.
12. Learned counsel for the appellants argeued that none had seen the actual incident. He further submitted that the case against the accused appellant was based upon circumstantial evidence and the prosecution could not; succeed in completing the chain of circumstances pointing towards; the hypothesis of the guilt of the accused appellants. He also arguedi that the accused Dwarika Prasad himself gave correct information of the incident at the Police Station which showed their innocence.
13. It is true that the case against the accused appellants is based upon circumstantial evidence. In the case like the present one direct evidence cannot be expected either. P.W.1 Mool Chand, P.W.2 Jagdish and P.W.3 Daya Shankar are residents of the village of the accused and it is no wonder that they turned hostile as the complainant was the resident of another village. According to the case prosecution, the deceased was strangulated and then set of the regarding on fiire wher as acccording to the case set up by the defence, the deceased was suffering from epilepsy and she fell on the burning stove, suffering a stroke of epilepsy, while preparing tea and caught fire and succumbed to the burn injuries. She. accroding to defence was preparing tea for her husband who was to leave for Varaniasi in early morning to join his duty. Therefore, the correctness of the two Versions. as given by the prosecution and defence is to be tested in the light- of the evidence and circumstances of the case to reach the conclusion as to whether the dircurnstances proved by the prosecution are of conclusive nature find tendency establishig the guilt of the accused appellants or of any of them.
14. So far as the date, time and place of the occurrence was concerned. it had not been challenged on behalf of the accused persons. It was not disputed that Smt. Cnanda Devi died inside the room of the house of the accused persons on 11.7.1980 at about 4,00 A.M. P.W.7 I.O Lal Singh" Chandel had found the dead body of Smt. Chanda Devi lying inside the room of the accused house of the accused persons. The date and time of the death of Smt. Chanda Devi was the same as in the written report, Ext Ka-13, lodged by the accused Dwarika Prasad. In the report Ext Ka 13, the accused Dwarika Prasad alleged that Smt. Chanda Devi died at about 4.00 A.M. on 11.7.1980. Therefore, the prosecution case regarding date, time and place of the occurrence in which Smt. Chanda .Dedi died is not disputed.
15. P.W. 5, Babu Lal is the father of the deceased Smt. Chanda Devi. He is the most important witness of the case who has revealed the motive. also on the part of the accused Ramadhar Pandey to commit this crime He deposed at the trial that the deceased was married with accused appellant Ramadhar Pandey. The marriage between them had taken place four years back. She had no issue. Accused appellant Ramadhar Pandey was in service at Varanasi and only in holidays he used to come home. He generally used to sit at the house of the cousin brother Sabha Dutt, spending considerably less time with his wife Chanda Devi deccased. He further deposed that on 5.5.80, marriage of his younger daughter Mithila Devi was solemnized. The deceased had come in the marriage and she told him that family members of her in-laws used to maltreat and scold her. The accused appellant Ramadhar Pandey insisted to take away the deceased immediately after the Bidai of Mithila Devi. When he showed his helplessness in immediately sending the deceased, the accused appellant threatened the deceased to teach her lesson when she would come. After extending such threat, Ramadhar Pandey came back from the house of his father-in-law (this witness). Although her daughter was not prepared to go to in-law's house, on 20.5.80 he took her to her Sasural. He also deposed that the accused appellant Ramadhar Pandey had sent a letter to him from varansai to take away his daughter as otherwise the consequence would be serious. The accused appellant Ramadhar Pandey called him on 3.7.80 for Bidai. On 3.7. So when he went to the Sasural of his daughter and talked to the accused appellant Ramadhar Pandey about the there at held out by him in his he reiterated the threat to be correct and real. When he enquired from the deceased. she wept bitterly and told him that she; had been beaten severely He asked the accused appellant Ramadhar Pandey to her Bidai if he did not want to keep her. He made similar requests to the other family members of the accused Ramadhar of want to keep her. accused Ramadhar Pandey. On 4.7.80 he finally refused Bidai. Then this witness returned in a helps condition. The deceased also did not want to remain there as she was not feeling secure there. He, however, consoled her that he would cope again for her Bidai. On 11.7.80 accused appellant sent a message to him that his daughter had died while preparing tea on stove. On 12.7.80, he came to Fatehpur and saw the dead body of his daughter Chanda Devi. When he enquired about the incident from the accused, they told nothing. He denied the suggestion that he had demanded money from accused appellant Ramadhar Pandey, and on his refusal he became annoyed with him. This witness further deposed that he had arranged money for. the marriage of his younger daughter, mortgaging his field and silver. He further deposed that he had received a letter written by his son-in-law Ramadhar Pandey from Varanasi and he had handed over the same to the Daroga on 13.7.1980. further deposed that on 13.7.80 he went to P.S. Khaga to lodge a report but report was not taken down. Thereafter On 20.7.80 he made an application to Fatehpur. He filed carbon copy of the application Ext Ka-2 wretten to S.P. Fatehpur and A.D. card Ext Ka-3. He also denied the suggestion that his daughter Chanda Devi deceased was suffering from epilepsy and frequently remained ill also denied that she was treated in the hospital.
16. From the evidence of P.W.5 Babu Lal it is established that the accused He his S.P. ipur nit. He with someone in some cousin deceased Chanda Devi appellant Ramadhar Pandey had sorne illicit relation brother's house and due to this, his relations with his were strained. Whenever the accused appellant Ramadhar Pandey visited his house in holidays, he mostly used to sit at! his cousin brother's house and had little relation with the deceased. The accused appellant Ramadhar Pandey had also dire consequenoes for his daughter. The strained relationship between the deceased and this accused appellant is established and the accused appellant had a motive to get rid of his wrrtten a threatening letter to P.W.5 Babu Lal wife, the deceased .Chanda Devi. The statement of P.W.5 Babu Lal referred above in detail regarding motive will show that the treatment meted out to Smt. Chanda Devi deceased at her in-laws place was bad and she was ill-treated and humiliated by her husband who paid little attention towards his wife and preferred to spend most of his time at the house of his cousin Sabha Dutta. There appears to be no valid reason to doubt the statement of P.W.5 Babu Lal who is father-in-law of accused Ramadhar Pandey. Motive which is an important aspect in a case of the accused, appellant [circumstantial evidence is abundantly proved against it Ramadhar Pandey.
17. P.W.4 Dr. J.S. Rai who conducted the postmartem examination of deceased Chanda Devi found that the deceased had sustained) four contusions. He specifically deposed that the injuries of contusion could be caused by falling on somi rough material but death could not be caused due to these injuries. He also found the burn injuries on the dead body of the deceased to be post mortem injries, We further found smett kerosene on the deid body. The doctor opined that death occurred due to strangulation and suffocation. The doctor found that the ; eyes and tongue of the deceased were (sic).
18. Although the other witnesses produced by the prosecution at the trial tumed hostile and did not support the prosecution case but from the evidence of P.W.5 Babu Lal and the medical evidence given by Dr; J.S. Rai it has been established beyond any reasonable doubt that the deceased was first strarigulated and then set on fire. If the story put up by the defence is believed, then the four contusions suffered by the deceased could not have been caused. The statement of the Doctor clearly shows that the death had occurred due to strangulation which was the of antetiortem injury No. l where contusibn of 4-3/4" X 3' and middle part of neck. His statement about burn injury being post mortem cannot be doubted.
19. D.W.1 Dr. B.S. Saxena produced by the accused-appellants at the trail was known to the accused appellant Ramadhar Pandey from before the incident and Ramadhar Pandey appellant used to come to his clinic frequently. A prescription written by him was also produced at the trial regarding the treatment of deceased Chanda Devi for epilepsy. After going through his evidence we are of opinion that his evidence could not inspire confidence and was not trustworthy. This witness had himself admitted in his evidence that the accused Ramadhar Pandey was known to him from before the incident and used to visit his clinic frequently. He also stated that he did not maintain any register of outdoor patients and Chanda Devi was treated by him as outdoor patient. If he had really must have kept some record about her treatment The trial that frequent meetings of accused Ramadhar Pandey with Dr.Saxena were suggestive of collusion between them and of this Doctor being a got up witness treated her, then judge rightly this Doctor, being a got up who came to depose to favour Ramadhar Pandey at his call emphatically denied the suggestion that the deceased was P.W.5 Babu Lal suffering from epilepsy or that he had got her treated. There is nothing on reecord to show that accused Ramadhar Pandey got treated Chanda Devi in Distt. Hospital, Banda Which was suggested to the witness in para 17. It is obvious that a concocted story of deceased suffering from epilepsy has been set up to make a fictitious show that the deceased died accidentally as a result of hum injuries sustained while preparing tea on stove. The defence theory was completely exploded.
20. There appears to be no valid reason to doubt the statement of P.W.5 Babu Lal. He had maintained his statement right from the application Ext.Ka.2; moved before the S.P. Fatehpur and before the I.O. when his statenrient was recorded under Section 161 Cr.P.C. and upto the witness box when his statement was recorded. S.P., Fatehpur and the who look the said produced carbon copy of the application Ext.Ka.2 sent to S.P., Fatehpur and A.D. card ExtjKa.3 showing the receipt of the application sent a registered A card A perusal of the application Ext.Ka.2 would show that he had mentioned the aforesaid facts and about the letter of threat sent by Ramadhar Pandey frorn varanasi. He had also mentioned in this application about handging over of he letter of Ramadhar Pandey to the S.O. of P.S. Khaga on 13.7.80, letter and assured him for taking action and when nothing was done then Lal) sent application to the S.P. Fathepur. The statement of Babu Lal, thus, cannot be held to be an after thought. The prosecution has, thus, estiablished that that accused persons treated Smt. Chanda Devi, deceased cruelly arid She was subjected to beatings at the house of the accused persons. She Was being neglected by her husband accused Ramadhar Pandey, whcih was involved in some love affair elsewhere.
21. The accused Ramadhar Pandey (and for that matter both the accused) stuck to the report Ext Ka- 13 as being the correct version ot the incident. It means that the presence of the accused Ramadhar Pandey (husband of the deceased) in the village on the day and time of the incident is admitted. The circumstances proved by the prosecution clinchingly establish that he (who had strong motive to with his wife and had even issued threat in this behalf in the letter to his father -in -law was Actually present at his residence at the fateful time and Committed her murder by strangulation and then set her afire. He then got presented a distorted version of the incident through his brothet Dwarika Prasad Pandey by means of report Ext Ka-13, to save himself.
22. It would appear from the report Ext.KaJ3 that when the death of smt. Chanda Devi was alleged to have taken place, she was alone in ;the house and was preparing tea and the accused Dwarika Prasad was lying outside the house while the accused Ramadhar Pandey had gone put to ease himself. wife of Dwarika Prasad and Raj Kumari, mother of the accused persons had also gone out to ease themselves. If Smt. Chanda Devi was preparing tea on stove for her husband Ramadhar Pandey, who was to return to Varanasi, where he was posted as a teacher as alleged in the report Ext. Ka.13, then Ramadhar Pandey accused would not have gone out to ease himself and if Ra|nadhar Pandey accused had gone out to ease himself, then the tea would have been prepared only when he had returned after easing himself so that the tea could be served fresh and hot. Here it is also significant to note that P.W.7 I.O. Lal Singh Chandel, did not stove, tea pots, cups, saucers, utensils containing tea etc. inside dead body of Smt. Chanda Devi was found lying.Thus,there was no sign to support the defence theory of the deceased being in the process of preparing tea
23. In this case, it was only when P.W.5 Babu Lal ran from pillar to post in lodging the report that the action was taken at the instance of S.P Fatehpur. S.O. of P.S. Khaga took away the letter of accused Rdmadhar Pandey, sent to P.W.5 Babu Lal and .thus, the important piece of evidence was lost by the action of the S.O. of P.S.Khaga, which is to be viewed with concern The apathy of local police is to be condemned.
24. So far as the accused Dwarika Prasad is concerned, he had no rnotive to be involved in commission of the crime. P.W.5 Babu Lal (father of the deceased) also did not speak anything specific against him concerning his conduct in respect of the deceased earlier to the incident. Whatever P.W5 Babu Lal spoke, it was against the accused appellant Ramadhar Pandey. He only became at tool in the hands of his brother Ramadhar Pandey (husband of the deceased) in presenting a twisted version of the incident at the-Police Station through report Ext Ka-l3 to save his brother (Ramadhar Pandey) from the consequences of this serious crime committed by him. On cumulative consideration of the circumstantial evidence brought on record, he cannot be held to be guilty for this offence by invoking Section 34 of the Indian Penal Code since it (circumstantial evidence) is sufficient enough against him. Consequently, he would be acquitted. However, the prosecution has successfully pro circumstances against the accused Ramadhar not proved the chain of folloving Pandey (Husband 6f the deceased)
1. The death of Smt. Chanda Devi took place inside the room of the house of the accused Ramadhar Pandey on 11.7.80 at about 4.00 A.M.
2. The accused Ramadhar Pandey was present at his house. when death of Smt. Chanda Devi took place.
3. The fact that the accused .Ramadhar Pandey had sent a letter in june 1980 to his father-in-law P.W 15 Babu Lal threatening the life of the deceased and his refusal to send Smt. Chanda Devi with her father, when he (P.W.5 Babu Lal) went to his (accused Ramaidhar's) village on 3.7.1980 at his summons and stayed there up to 4.8.1980,"
4. The fact of complaining by Smt. Chanda Devi to her father about ill-treatment at the hands of the accused Ramadhar Pandey.
5.The fact that the Ramdhar Pandey took little interest in! his his stay in the village and spent ousin due to same love affair.
6. The strained relation the accused Ramadhar Pandey and his wife Smt. Chanda Devi and strong motive his on his part to commit murder of his wife.
7.The medical evidence establishing beyond any doubt that due Smt.Chand Devi died of suffocation to strangulation.
8. The report Ext.Ka.13, to which Ramadhar has stuck, contained wrong and false facts regarding the death of Smt. Chanda Devi.
9. The Investigating Officer did not find any stove at the place of occurrence and absence of any evidence regarading preparation of tea.
10.The presence of smell of kerosene on the dead body of Smt.Chanda Devi, which according to the defence case should not have been present, in case her Terricot Sari caught fire from the flames of stove.
11. The falsity of defence version of the incident that she Was suffering from epilepsy and on a stroke of the same she died by accidenttly falling on stove while preparing tea.
25. Thus, we find that the circumstances proved by the prosecution againsts accused Ramadhar Pandey are conclusive in nature and all the facts so establi are consistent only with the hypothesis of His guilt. They exclude the possibiring n a the deceased dying accidentally from burn injuries while tea The chain of evidence is so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused Ramadhar Pandey. They actualy show that in all human probability the act must have been done by him (Ramadhar Pandey).
26. In view of what we have found above, we are of the opinion that the prosecution has succeeded in proving its case beyond reasonable doutbt against the accused appellant Ramadhar Pandey, The prosecution case- against his brother Dwarika Prasad is not proved.
27. In the result, the appeal is partly allowed. The order of conviction and sentences as regards the accused appellant Ramadhar Pandey are affirmed. But instead of convicting him under Section 302 I.P.C. with aid and of Section 34 I.P.C, he is convicted under Section 302 I.PC simpliciter and under Section 201 IPC. He shall undergo life imprisonment untider Section 302 IPC and five years R.I. under Section 201 IPC. Both the sentences shall run concurrently. He is on bail. The CJM, Fatehpur shall cause him to be arrested and lodged in jail to serve out the sentences.
28. As regards the accused appellant Dwarika Prasad, the order of conviction and sentences passed by the trial court against him is set aside. He is already, bail bail.
29. The judgment be certified to the court, below for reporting comlpliance within two months.