JUDGMENT Mukteshwar Prasad, J.
1. These two appeals have been filed by accused Jameela Begum and Sayeed Khan against the judgment and order dated 5 11 1981 passed by Sri V.P. Kalra, the then Additional, Sessions Judge, Kanpur in S.T. No. 183 of 1979 whereby he convicted both the accused under Sections 302 and 201 both read with Section 34 of the Penal Code and sentenced them to undergo imprisonment for life and rigorous imprisonment for a period of three years respectively Both the sentences were directed to run concurrently.
2. Since both the appeals have arisen out of a common Judgment dated 5.11.81 and are connected, they were heard together and are being disposed of by a common judgment
3. Briefly stated, the facts of the case leading to the trial of the appellants are as under:
Admittedly. Smt. Nargis @ Hasina was daughter of P.W. 1 Bashir Khan and she was married to accused Sayeed Khan in the year 1978 PW 3 Nek Shahi Khan was mediator and got the marriage of Hasina settled with Sayeed Khan.
4. Accused Sayeed Khan and Hamid Khan @ Kallu are sons of Nawab Khan. Accused Jameela Begum is wife of Hamid Khan @ Kallu It is further admitted between the parties that marriage of the son of P.W. 3 Nek Shahi Khan was fixed in the month of May, 1979 and with a view to ensure participation of Smt. Hasina in the marriage, Bashir Khan went to the house of the accused for Bidai of his daughter about 3-4 days prior to the alleged incident of murder. But the accused did not send her
5. The prosecution came to the Court with the allegations that the deceased was sent to her 'Sasural' in 'Gauna' and she remained there for about two months. When she retuned to her 'Mayaka', she complained to her parents and other members of the family that her husband (Sayeed Khan) was a man of bad character and had developed illicit intimacy with his elder brother's wife (Bhabhi). She further disclosed that Sayeed Khan assaulted her and she was ill treated by him. Moreover, the behavior of Smt Jameela Begum was also not good towards her. When father-in-law of the deceased reached the house of Bashir Khan, he drew his attention to the complaints mace by Smt. Hasina. Nawab Khan assured that there would be no complaint in future. Oil this assurance Smt. Hasina was sent to her 'Sasural'. P.W. 1 Bashir Khan again went to the 'Sasural' of his daughter about 3-4 days prior to her murder but she was not sent on the ground that she, was defaming her husband and Ors.
6. Bashir Khan returned home and narrated the incident to his, son P.W. 2 Nasim Babu as well as P.W. 3 Nek Shahi Khan.
7. On 12.5.79, P.W. 2 Nasim Babu and P.W. 3 Nek Shahi Khan left the village for 'Bidai' of Smt. Hasina Begum and reached village Madwai (Sasural' of the deceased) at about 9-00 p.m. Both entered into the house of the deceased and heard shrieks. When they reached in front of the door of eastern 'Kothari", they found that Kallu and Smt Jameela Begum were catering hands of Smt. Hasina and Sayeed Khan sprinkled kerosene oil on her body and set fire. A lantern was burning there in the 'Kothari'.
8. They came out of the house and collected some villagers. They went into the house again alongwith some villagers and found Smt. Hasina burnt. On their request, none of the villagers agreed to accompany them to police station.
9. On 13.5.79 at 6-20, a.m., Kallu gave a written report at P.S. Akbarpur to the effect that Smt Hasina, wife of Sayeed Khan, had committed suicide in her house and at that time he had gone to village Gaura Dadey to attend a marriage and his brother Sayeed Khan had also gone to Akbarpur to supply milk. Smt. Jameela Begum was also not present in the house at the time the lady committed suicide and had gone for easing.
10. The local police made entry in the G.D. at serial No. 8 and S.I. Tahsildar Singh was deputed to visit the spot and take necessary steps for post-mortem examination.
11. P.W 7 S.I. Tahsildar Singh reached the village Madwai on the same day at about 8-30 a.m. He prepared inquest report and other relevant papers for autopsy and sent the dead body to mortuary at Kanpur through constables Satya Dev Pandey and Jairam Singh.
12. P.W. 5 Dr. P.P. Gupta, the Medical Officer of the U.H.M. Hospital, Kanpur performed post-mortem examination on 14.5.79 at 1-00 p.m. The deceased was about twenty years old and had died about 1 1/2 days prior to examination. She had an average built body and rigor mortis had passed off from both limbs. Post mortem blisters were present on both thighs, abdomen lower, legs. Abdomen was distended and tongue was protruding
13. Dr. Gupta found the following ante-mortem injuries:
1. Contusion 3 cm. x 2/1/2 cm. on the back of left thigh just below the buttock.
2. Contusion 7 cm. x 4 cm. on the lower lateral part of thigh 15 cm. above the knee.
14. Dr. Gupta further found the following post mortem burnt injuries:
1. Whole of the hair of skull and scalp were burnt, whole face, both ears front of neck, whole part of both sides of chest and upper part of abdomen and whole of the both upper limbs and back of neck, back of both sides of chest had fourth degree bums. Line of redness and vesications were not present. Lower part of abdomen and holes of both the lower limbs, both buttocks had second degree bums. Line of redness and vesications were not present Both soles had first-degree burns, sooty blackening was present. Smell of kerosene oil was also present.
15. On internal examination, pleura and larynx were found congested Carbon particles or sooty were not present Left coruna of the hyoid bone were fractured and all around muscles were congested. Clotted blood was present Both lungs were congested. Both chambers of the heart were empty.
16. In the opinion of Dr. Gupta death was caused due to asphyxia as a result of throttling.
17. After receipt of the post-mortem report on 15.5.79, the local police registered a case under Section 302 I.P.C. vide entry in the G D. at serial No. 12 at 9-30 a.m. The investigation of the case was taken up by the then SO. Ramesh Chandra Sharma. He interrogated Bashir, Nasim Babu and Nek Shahi Khan at the police station itself on 15.5.79 On 17.5.79 the IO inspected the scene of occurrence and prepared site-plan. He collected burnt 'Blouse' and a container of kerosene oil from the house of Kalloo and prepared Fard. He recorded statement of Sampat Singh on 18.5.79 and interrogated other villagers also. Accused Sayeed Khan was arrested by the police on 24 5.79 and was questioned.
18. After transfer of S.I. R.C Sharma. the Investigation was completed by SI Rishi Pal Singh who submitted charge sheet against the accused
19. All the three accused viz Sayeed Khan. Hamid Khan and Smt Jameela Begum were Charged under Sections 302 and 201 both read with Section 34 of the Penal Code on 24.7.80. They pleaded not guilty.
20. At the trial, the prosecution with a view to establish its case examined P.W. 1 Bashir Khan, father of the deceased, P.W 2 Nasim, brother of the deceased and P.W. 3 Nek Shahi Khan, who claimed themselves to be eye witnesses of the incident P.W 4 Smt. Akbari Begum tai of the deceased P.W. 5 Dr. P.P. Gupta who. conducted autopsy. PW 6 Constable Satya Dev Pandey who-brought the dead body to Kanpur for autopsy, P.W. 7 Tahsildar Singh who prepared inquest report and other connected papers PW 8 Sampat Singh was examined to prove extra judicial confession made to flim by accused Sayeed Khan and P.W 9 S.I. R.C. Sharma is I.O. of the case
21. Accused Sayeed Khan and Smt Jamella Begum totally denied all accusation levelled against them by the prosecution and pleaded their false implication on account of enmity. The defence version is that Smt Hasina had committed suicide in her house (Sasural) and they were not present in the house at that time Accused Sayeed Khan disclosed that he did not send his wife (the deceased) to her 'Mayka and promised to bring her with him. P.W. 1 Bashar Khan felt annoyed and lodged a false case. He had gone to Akbarpur to supply milk at that time and returned home at 10-30 p.m. Similarly. Smt. Jameela Begum pleaded that she had gone to attend the call of nature. When she returned, daughter-in-law of Sarju Naal disclosed to her that she saw flames in her house . When they entered into the house, they found smoke coming out of the room. On hue and cry, the villlagers assembled there and brought the dead body of Smt, Hasina Begum out of the house who was badly burnt.
22. Accused examined their close neighbour Trilok Chand (D.W. 1). D.W. 2 Patrey @ Rampher, a co-villager of the accused, D.W. 3 Rama Shankar Tripathi a tempo driver, D.W. 4 Bhagwati Singh who proved participation of Kallu in the marriage of Smt. Kamlesh Kumari niece of the witness on 12.5.79 and D.W. 5 H.C. Maqbool Ahmad
23. After having heard learned Counsel for the parties and considering the entire oral and documentary evidence on record learned Judge gave benefit of doubt to accused Hamid Khan and acquitted him of both the charges. He, however, found Sayeed Khan and Smt. Jameela Begum guilty for committing murder and destroying the evidence and convicted and sentenced them as mentioned above.
24. Aggrieved by their conviction and sentence both Smt Jameela Begum and Sayeed Khan have come up in appeal.
25. We have heard teamed Counsel for the appellants, learned A.G.A. and perused the entire record carefully.
26. Learned Counsel for the appellants has assailed the judgment under appeal mainly on the grounds that learned Judge disbelieved the testimony of P.W. 2 Nasim Babu and P.W. 3 Nek Shahi Khan and has observed that their testimony is not trust worthy Therefore, there is no eye witness account on record to the effect that it were the appellants who caused deatfi of Smt. Hasina by throttling and destroyed the evidence by burning her after her death. Me contended that the prosecution mainly relied on two kinds of evidence in support of its version namely ocular testimony of P.W. 2 Nasim Babu and P.W. 3 Nek Shahi Khan and alleged extra judicial confession of the appellant (Sayeed Khan) made to P.W. 8 Sampat Singh. The eye witness account given by the aforesaid two witnesses was disbelieved by the Court below. So far the testimony of P.W. 8 Sampat Singh is concerned, he turned hostile and testified that Smt Hasina had committed suicide and the appellant requested him to help in the matter. The trial Judge rightly did not place any reliance on the testimony of P.W. 8 Sampat Singh. He was found to be a history sheeter by the Court below.
27. So far circumstantial evidence is concerned, there is no reliabie evidence on record to connect the appellant with the crime in question It was further submitted with venemence why no report was lodged at the police station by P.W. 3 Nek Shahi Khan who happened to be a police constable and served the department for about thirty years and there is no explanation on record on this point It was also urged that both P.W. 2 Nasim Babu and P.W. 3 Nek Shahi Khan did not visit the Sasural of the deceased on the impugned night. They neither went to the police station, as claimed by them, nor they met the I.O. in the village in question on next day' of the incident. Consequently, both the appellants are entitled to be acquitted.
28. Reliance has been placed by the appellants' learned Counsel on the following decisions:
1. Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir .
2. Udaipal Singh v. The State of U.P. AIR 1972 Supreme Court 54.
3. State of Punjab v. Karnail Singh .
4. State of Rajasthan v. Kheraj Ram .
5. State of Rajasthan v. Rajaram 2003 (2) JIC 755 (SC).
6. Mulakhraj and Ors. v. Satish Kumar and Ors. 1992 (29) (SC) 341.
29. On the other hand, learned A.G.A has supported the impugned judgment and contended that murder of the lady took place in her husbands house (Sasural) and she was strangulated first and thereafter she was burnt with a view to destroy the evidence by the appellants and the learned Judge rightly found them guilty It was also urged that murder took place in the Sasural of the lady and as such no neighbour came forward to support the prosecution version The doctor who conducted the autopsy found two contusions on the right and left thigh of the lady and opined in clear words that death was caused on account of throttling and he found several signs of post-mortem burns. The evidence of the doctor totally ruled out the defence version that Smt Hasina committed suicide on the impugned night.
30. After having considered the submissions made on behalf of the parties and entire oral and documentary evidence on record led by them we find that the prosecution could not establish its case against the appellants also beyond ail shadow of doubt and, in our opinion, both the appellants are also entitled to get benefit of doubt and deserve acquittal.
31. As noted above, the prosecution came to the Court with the allegations that the two appellants along with Hamid Khan @ Kallu committed murder of Smt Hasina by throttling in the impugned night and burnt her after sprinkling kerosene oil
32. At the trial, the prosecution led two types of evidence to prove its case, which included ocular evidence of two witnesses P.W. 2 Nasim Babu and P.W 3 Nek Shahi Khan. The prosecution further relied upon the testimony of P.W. 8 Sampat Singh before whom appellant Sayeed Khan had allegedly made extra judicial confession
33. As mentioned above, learned Judge found the testimony of two eye witnesses untrustworthy and discarded their evidence with the observations that they contradicted each other on several material points. Both claimed to have reached the Sasural of the, deceased at about 8-30-9-00 p.m. on 12.5.79. They found that old lady was sitting at the door. They however, entered into the house and heard shrieks. When both of them reached in front of the door of eastern Kothari', they found that a lantern was burning there. According to them Kallu and his wife Smt. Jameela Begum had caught hold of hands, and neck of the deceased was tilting towards left. They further disclosed that Sayeed Khan sprinkled kerosene oil on her body and set fire with the matchbox. However, P.W. 2 Nasim Babu who is real elder brother of the deceased and a young man aged about 20 years did not try to stop Sayeed Khan from sprinkling kerosene oil and setting fire. This conduct of the witness was quite unnatural. Sayeed Khan further asked his brother to apprehend the witnesses but they came out of the house and raised alarm. According to them, some villagers had assembled there. They again entered into the house and saw the dead body of Smt. Hasina lying. It is noteworthy that none of them rushed to the police station to lodge F.I.R. about the incident. It will not be out of place to mention that P.W. 3 Nek Shahs Khan who is admittedly a police constable did not go inside the police station and lodged no report . He failed to furnish any satisfactory explanation in this regard It is also noteworthy that P.W 2 Nasim Babu did not tell his tale of woe to any body at the police station Akbarpur or at Kanpur where they had gone to collect the dead body Both P W 2 Nasim Babu and P.W 3 Nek Shahi Khan further contradicted each other on a material point Nasim Babu claimed that 1.0. was busy in preparing an inquest report but he did not tell him the incident and the rote played by the appellants and Hamid Khan in the crime in question. He could not give any satisfactory explanation for this lapse on his part. On the other hand. P.W. 3 Nek Shahi Khan disclosed that when they reached back to village Madwai they came to know that dead body had already been sent to Kanpur for post-mortem examination. P.W. 3 Nek Shahi Khan further admitted that he came to know at the police station that kallu had lodged a report. He felt that correct report would not have been lodged by him He. however made no efforts to give another report to the police and he made no attempt to inform higher police authorities at Kanpur regarding the incident. In this view of the matter, we hold that the teamed Judge rightly observed that both were not reliable witnesses and was justified in discarding their evidence.
34. So far the evidence of P.W. 8 Sampat Singh is concerned, he turned hostile and testified that Sayeed Khan had requested him to help in the matter. It is true that he replied in affirmative to the leading questions put to him by the State Counsel in cross-examination. When he was cross-examined by the teamed Counsel for the appellants he stated in dear words that Sayeed Khan had made confession before him on 18th in the year 1979. He failed to disclose the relevant month in which the alleged confession was made to him. According to him. it was winter season It is noteworthy that Sayeed Khan was arrested by the police on 24.5.79. In this view of the matter, the Court below was fully justified in rejecting the testimony of P.W 8 Sampat Singh also.
35. We find from the judgment of the trial Court that learned Judge has recorded a finding of conviction against the appellants on the basis of circumstantial evidence. The law is well settled on the point that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence. The offence can be proved by circumstantial evidence also. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established They are:
1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not may be established;
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3) the circumstances should be of a conclusive nature and tendency;
4) they should exclude every possible hypothesis except the one to be proved; and
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused
36. We shall scrutinize the evidence on record in the light of the aforesaid proposition of law laid down by the Apex Court of the country. In the instant case, the motive for the crime is said to be that Sayeed Khan had developed illicit relationship with his elder brother's wife (Smt. Jameela Begum) and he maltreated his wife (deceased). The deceased made a complaint to her parents and other members of the family. Bashir Khan brought this matter to the notice of father of Sayeed Khan. The appellants and members of the family felt that they were defamed by the deceased in her 'Mayka' and as such, they allegedly committed the crime in question In our opinion, it was Hamid Khan who was hurt maximum by the conduct of the deceased and he had a strong motive He was. however, given benefit of doubt and was acquitted by the Court below and his plea of alibi was accepted by the learned Judge No doubt the appellants had also a motive and must have been annoyed after hearing the conduct of the deceased in her 'Mayaka'. It is well settled that suspicion howsoever strong it may be, cannot be a substitute for proof. The onus was on the prosecution to prove its case beyond all shadow of doubt by reliable and convincing evidence in our opinion, this burden has not been properly discharged by the prosecution.
37. We are in agreement with the finding of the Court below that death of Smt. Hasina was homicidal and she did not commit suicide as pleaded by the appellants. The learned Judge has given cogent reasons for recording the finding that deceased was first of all throttled to death and thereafter she was burnt with a view to destroy the evidence. We find no infirmity in the conclusions arrived at by the Court below on this point
38. Now the question is as to whether the appellants before us are authors of the crime or not. It is true that the offence of murder and thereafter burning of the lady took place in the house of the appellants. We have also found that lady did not commit suicide. The Court below has observed that both the appellants were undoubtedly present in the house when the deceased was throttled and her dead body was set at fire. We find that this conclusion of the Court below is not correct and no evidence was led by the prosecution to prove that the appellants were actually present at their house and committed the crime in question. As noted above, the presence of two witnesses Nasim Babu and Nek Shahi Khan at the scene of incident was not proved by the prosecution beyond reasonable doubt and the trial Court also found that their testimony is not trustworthy and acceptable. On the other hand there is evidence of defence witnesses to the effect that Sayeed Khan had gone to Akbarpur to supply milk and came back to his house at about 10-00 p.m. i.e. after murder of his wife It is correct that a false report was lodged with the police by Kallu and Smt Jameela Begum surrendered in the Court on 23.7.79. We are. however of the view that only on the basis of these two circumstances, the appellants cannot be held guilty for committing murder of the lady as well as burning her.
39. It has come in the evidence of D.W. 1 Trilok Chand that besides the appellants, Hamid Khan, Nawab khan, Munshi who was Nana of Kallu and mother and sister of Nawab Khan also lived in the appellant s house. No doubt Trilok Chand further disclosed that Nana of Kallu had gone to the tube well and sister of Nawab Khan was present in the 'Khalihan' at the relevant time and Nawab Khan himself had gone to his relatives. In our opinion, the statement of Trilok Chand is not wholly reliable and cannot be accepted. First of all no other witness came forward to corroborate the testimony of Trilok Chand. D.W. 2 Patrey @ Rampher corroborated the testimony of Trilok Chand on the point that Sayeed Khan had gone to supply milk and had not returned to his house till 8-45 p.m. He did not support the statement of Trilok Chand on other points. It is well known that the villagers sleep at their tube wells and in the Khalihans also with a view to save the property but they go there after having their dinner. It was month of May. Moreover, Sayeed Khan and his brother Hamid Khan were male members in the family and were young persons. However, none of them went to sleep in the Khalihan and sent their father's sister (Buaa) to Khalihan. This statement of the witness does not stand to reason that an old lady was sent to sleep in the Khalihan, There is no iota of evidence that Nana (Munshi) and father s sister had taken their dinner on the impugned night. in this view of the matter the onus was on the prosecution to establish that no member of the family was present in the house at the time of commission of offence except the appellants, deceased and Kallu.
40. In our view the absence of the other members of the family at the relevant time has not been proved by the prosecution Smt. Jameela Begum pleaded that she had gone to attend the call of nature. When she returned home, she found smoke coming out of the Kothari. The Court below has observed that normaly a young lady would not go to ease in the night all alone at about 8-30-9-00 p.m It is noteworthy that it was month of May when villagers are supposed to be present in their Khahhans Moreover, there is no evidence that what was the distance of the place from the house of the lady where she had gone to attend the call of nature.
41. Besides, there is another circumstance in the evidence, which belies the prosecution case All the doors of the appellant s house were found open at the time of alleged commission of the offence. This conduct of the culprits does not stand to reason that they committed murder of a young lady by strangulating her and thereafter burnt her but they took no precaution at all to conceal their identity or to save their skin It will not be out of place to mention that no neighbour of the appellants was examined to prove that they were actually present a: their house and were seen by him In this view of the matter, the involvement of other members of the family also in the crime in hand cannot be ruled out.
42. In view of the foregoing discussion, we are of the opinion that complicity of the two appellants in the impugned crime has not been established By the prosecution beyond reasonable doubt. The circumstantial evidence in the case is not sufficient to fasten the liability of committing the crime on the appellants. The chain of circumstances is not complete and circumstances are not of conclusive nature. We, therefore, hold that participation of both the appellants also in the crime in question has not been established beyond reasonable doubt and they too in our opinion are entitled to get benefit of doubt and deserve acquittal. Consequently we hold that this appeal has merits and it must succeed.
43. The appeals filed by Smt Jameela Begum and Sayeed Khan are hereby allowed and the conviction and sentence recorded against them under Sections 302 and 201 both read with Section 34 I.P.C. are hereby set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.
44. A copy of this judgment, shall be placed on the record of connected Criminal Appeal No. 2720 of 1981.