Indrajeet vs State Of U.P. on 15 December, 2022

[Cites 21, Cited by 2]

Allahabad High Court

Indrajeet vs State Of U.P. on 15 December, 2022

Bench: Sunita Agarwal





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on:- 31.05.2022
 
Delivered on:-15.11.2022
 
Court No. - 39
 
Case :- CRIMINAL APPEAL No. - 4518 of 2012
 
Appellant :- Indrajeet
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajul Bhargava,Ashok Kumar Gupta,Govind Saran Hajela,Rajiv Lochan Shukla,Smt Shikha Singh,Subhash Chandra Raghav
 
Counsel for Respondent :- Govt. Advocate, Birendra Kaushik, G.A.
 
Alongwith
 
Case :- CRIMINAL APPEAL No. - 7496 of 2010
 
Appellant :- Kare Singh And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajul Bhargava,Rajiv Lochan Shukla,Subhash Chandra Raghav
 
Counsel for Respondent :- Govt. Advocate,Birendra Kaushik
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

1. Heard Sri Rajiv Lochan Shukla and Sri Subhash Chandra Raghav, learned Counsels for the appellants and Sri Patanjali Mishra, learned A.G.A. for the State- respondent.

Introduction:-

2. These appeals have been filed challenging the judgment and order dated 30.10.2010 passed by the Additional Sessions Judge, Court No.6, Mathura in Sessions Trial No.548 of 2007 arising out of Case Crime No. 325 of 2007 under Section 498, 304-B, 302 read with Section 34 IPC and Section 3 and 4 of the Dowry Prohibition Act, Police Station Naujheel, District Mathura, convicting three accused persons namely Indrajeet, Kare Singh and Premwati for the offences under Section 302 read with Section 34 IPC and Section 4 of the Dowry Prohibition Act. Under Section 302 read with Section 34 IPC, the appellants have been sentenced for life imprisonment with fine of Rs.5000/- each; default punishment is one year additional rigorous imprisonment. Under Section 4 of the Dowry Prohibition Act, the sentence awarded is one year rigorous imprisonment with fine of Rs.1000/- for each; the default punishment is three months additional imprisonment. All the punishments are to run concurrently. The accused appellants have been acquitted of the charges under Section 304-B, 498-A IPC and Section 3 of the Dowry Prohibition Act.

Report of the crime and the evidence of formal witnesses of investigation:-

3. The first information report of the incident was lodged by Jaipal Singh son of Chitrapal Singh, brother of deceased Smt. Kumari @ Guddi Devi, on 12.07.2007 at 08.45 AM, the date and time of the incident mentioned therein is 11.07.2007 at about 07.00 PM. As per the narration in the first information report, the deceased Smt. Kumari @ Guddi got married with appellant Indrajeet son of Kare Singh in February' 2005. The father of the informant gave dowry as per his financial capacity but the three appellants herein namely Indrajeet, husband of the deceased, Kare Singh and Premwati father-in-law and mother-in-law as also a younger brother-in-law of the deceased were not happy with the dowry. When the informant went to bring his sister from her matrimonial home in Vidai after ten days of the marriage, the appellants had abused him and raised a demand of Rs.1 lac as dowry. Looking to the situation on the spot, the informant had assured that he would meet their demands when he reached his village through his father. The appellants had then sent the deceased alongwith the informant but they did not come to bring her back. After eight months the informant, his father, family members and relatives went to the matrimonial house of the deceased and after much persuasion she was brought to her matrimonial house by the appellants.

4. On the date of the incident, i.e. 11.07.2007, the informant had reached at the matrimonial house of his sister to meet her, he was verbally abused by the appellants over the demand of money and the said information was communicated by him to his father on telephone who asked him to come back and as such the informant went back to his village. On 12.07.2007 at about 05.30 AM, a villager namely Indrapal Singh son of Badam Singh came to the informant to intimate him that his sister Guddi had died in the night. When the informant alongwith his family members and villagers had reached at the matrimonial house of the deceased, her dead body was found lying in the 'Aangan' (Courtyard) of the house. On the asking of the informant and other family members, it was intimated by the villagers that the deceased had committed suicide on 11.07.2007 at about 07.00 PM. When they reached in the room of the incident, they found a plastic chair kept on the bed in a proper position and a pillow lying in the middle of the bed, a wooden stick was lying at the head side of the bed and looking to the said situation of the room, the informant got suspicious that his sister was killed by the accused persons namely her father and mother-in-law, husband and brother-in-law.

5. The fact of lodging of the first information report by Jaipal Singh who had entered in the witness box as PW-1 was proved with his deposition wherein he had proved the written report as Exhibit Ka-1. The check report prepared on the written report submitted by the informant PW-1 had been proved by the Constable Clerk posted in the police station Naujheel on the date of the incident, examined as PW-4, being in his handwriting and signature marked as Exhibit Ka-11. The G.D. entry of the same at G.D. No.1, time 08.45 AM was proved by bringing the original G.D. in the Court, being in the handwriting and signature of PW-4 and the carbon copy prepared in the same process was filed and proved as Exhibit Ka-12. It was stated by PW-4, in cross, that apart from that report, no other report was lodged by him on the said date i.e. 12.07.2007. The Station House Officer alongwith police personnel had left the police station on the said date soon after the lodging of the report. He, however, stated that the entry of the return of the said police personnel had not been recorded. The suggestion that the report was lodged ante-time was refuted by PW-4.

6. PW-5 is the Investigating Officer who stated that, on 12.07.2007, he had received investigation after registration of the first information report. The spot of the incident was inspected at the instance of the informant. The statement of mother and sister-in-law of the deceased were recorded. On 14.07.2007, the statements of accused Kare Singh, Indrajeet and Premwati were recorded. The postmortem report and other related documents were entered in the case diary. The statement of Indrapal son of Badam Singh who gave intimation of the death to the informant had also been recorded. The statement of other witnesses were also recorded. A Saree, one chair and a wooden stick recovered from the spot were entered in the recovery memo prepared by S.I. Prembabu, exhibited as Exhibit Ka-15. The recovered articles were produced in the Court in sealed state, the seal was opened and the recovered articles were identified by PW-5, marked as Material Exhibit Ka-1, 2 & 3. The site plan prepared on 12.07.2007 at the instance of the informant had been proved as Exhibit Ka-13, being in the handwriting and signature of PW-5. The charge sheet against three accused appellants submitted on 28.07.2005 was proved as Exhibit Ka-14 being in the handwriting and signature of PW-5.

7. In cross, PW-5 stated that when he reached on the spot, no member of the in-laws side (the accused) was present and only members of the Maika side of the deceased were there. The body was lying in the Aangan (courtyard) when he reached the spot and there was no Saree in the neck of the deceased nor there was any description of tying of Saree in the neck in the FIR. He further stated that he reached the spot at about 09.00-9.30 AM and the Tehsildar arrived to conduct the inquest after one hour. The statement of the informant was recorded on 12.07.2007 and the informant side were on the spot as they got intimation in the night. PW-5 further stated that when they reached the body was lying in the Aangan on the floor on a mattress. There was no 'Noose' and the deceased was wearing all her clothes. The distance of the room wherein incident was stated to have occurred was 15 paces from the Aangan (courtyard) and that was the room of the deceased wherein she was living with her husband.

8. The entire proceedings of the inspection on the spot was made at the instance of informant side. There were 5-7 rooms in the house some of them were at a distance of 20 yards and he could not remember whether all rooms were open. He had inspected only the room where he was intimated that the incident had occurred and the place where the dead body was lying and did not inspect any other room and did not remember as to where the in-laws of the deceased were living. The site plan was prepared at the instance of the informant and all such things which were shown to him lying in the room were taken into possession. There was a hook (Kunda) on the roof of the room but no fan was hanging. He did not come to know as to how the dead body was brought in the Aangan (courtyard). He did not remember as to whether there were jewelery on the dead body and whatever was found was entered in the inquest.

9. PW-5 was further confronted as to whether there was toilet (latrine) in the house and he stated that it was not there and hence was not shown in the site plan. He further stated that he enquired from the Doctor, who conducted the postmortem and the doctor categorically stated that no ligature mark was found in the postmortem though in the inquest and photonash ligature mark was shown. He further stated that though the instruction was given by the Doctor to the Constable who brought the dead body for the postmortem to take a photograph of the neck region of the dead body but it was not taken. The postmortem report was signed by two doctors. He was confronted that another doctor Khanchand had not mentioned in the postmortem report that he had agreed to the finding therein by mentioning "I agree" and the persons who had prepared the inquest were not confronted about mentioning of the ligature mark.

10. It was stated by PW-5 that he had recorded the statement of Indrapal who gave the first intimation to the informant and did not enquire as to how the information was received by Indrapal nor any of the witnesses had disclosed as to how information had reached to them. The statement of Smt. Nihal Devi was recorded on 12.07.2007 who took the names of three accused persons excluding brother-in-law Vedan @ Ved Prakash. No other connecting evidence could be collected by him in relation to the demand of dowry. The articles shown in the memo of recovery prepared as Exhibit Ka-15 were projected as articles used in the murder by hanging of the deceased. PW-5 was confronted about the statement of the informant with regard to the dispute relating to the demand of dowry and he reaffirmed the statement of the informant in that regard.

The Postmortem findings:-

11. Dr. Ajab Agarwal examined as PW-3 is the postmortem doctor who stated that he conducted postmortem on 13.07.2007 at about 03.30 PM. The dead body was brought by two Constables in sealed state. The deceased was aged about 21 years and the time of death was about 2 days. It was an average built body. Rigor mortis was present in the lower Limbs. The tongue was protruded, face and nails were blue, i.e. they were without blood. The trachea was congested and hyoid bone was broken. Both legs were congested. Left chamber of the heart was empty and right was filled with blood, the stomach was filled with 150 grams of undigested food. Pancreas and spleen were congested. All other organs were empty. The injuries found on the person of the deceased had been noted as under:-

"Abrasion of nail over right mandible on the outer surface. Abrasion on left and front side of neck. No ligature mark seen."

12. The deceased was wearing a nose pin and 4 toe pins. The cause of death was Asphyxia as a result of throttling. The postmortem report was proved as Exhibit Ka-2 in the handwriting and signature of PW-3. On the inquest and other papers related to the same, the signature of PW-3 were identified and they were marked as Exhibit Ka-3 to Ka-10. The estimated time of the death was stated as 11.07.2007 about 07.00 PM and the cause of death was throttling.

13. In cross, PW-3 stated that in the inquest and other related papers ligature mark was shown and a 'Noose' of dhoti around the neck was mentioned but he did not find any such mark of injury on the neck and, as such, he did not find it necessary to click the photographs on his own. He further stated that any discrepancy in the inquest report was not required to be explained by him. About the injuries noted on the face and neck of the deceased, it was stated by PW-3 that abrasions were caused by nail, however, the size and depth of the abrasions were not mentioned therein. On further confrontation about the cause of death, PW-3 stated that he believed the medical jurisprudence of Modi and hyoid bone can be broken by any strong pressure on the neck, in case of hanging and throttling. He further stated that it was not necessary that tongue protrudes during hanging. The suggestion that he had recorded wrong findings in collusion with the family members of the deceased was refuted by PW-3.

14. The witness of fact about the first information report is the informant Jaipal Singh who had reiterated the statement made in the written report in his examination in chief. He stated that the scribe of the report was Satyaveer Singh son of Jahan who wrote whatever was dictated to him. The report was read over to him and then he had signed the same. As noted above, the written report was marked as Exhibit Ka-1 bearing signatures of PW-1.

Prosecution witnesses of fact:-

(i) The informant PW-1:-

15. In cross, PW-1 was confronted about the demand of dowry and that the named accused i.e. brother-in-law of the deceased was barely 18 years old at the time of his deposition. It is categorically stated by PW-1 that after 10th day of marriage he went to bring his sister, he was abused and his sister was sent with him and thereafter no one came to bring her back. She stayed for eight months in her Maika. After much persuasion she was brought back and she stayed in her matrimonial home for about ten months and during that period the accused persons did not allow the informant side to call or meet the deceased. On the asking of the Court, PW-1 stated that there was no phone in the house of the accused persons but there was PCO in their house and whether it was for local or STD was not known to him. He was confronted about the orientation of the matrimonial house of the deceased and that the in-laws of the deceased and other members of the house were living in different rooms and that there was a lot of distance between their rooms. He stated that his sister and brother-in-law were living in the room at the back side where he went for about one or two times before the incident. There was a Baithak where people used to sit. The distance between the rooms at the front and back side was more than 60 feet.

16. PW-1 was further confronted about the financial capacity of his family to give dowry and he stated that they had taken loan from the bank in the shape of Kisan Credit and there was no other bank loan with them. They reached at about 08.00 AM in the house of the deceased on 12.07.2007 and the police came later when the inquest was conducted. When confronted, PW-1 stated that he had seen the dead body of the deceased and found slight mark in the neck and the tongue was protruded. The dead body was lying in the Angan (courtyard) and he did not know as to how and when she had died. The information of the death was given by a resident of another village and not any person of the village Baghai. PW-1 was further confronted about the allegations in relation to the demand of dowry and as to whether a Panchayat was held. He stated that family members only sat together after seven months of the marriage and at that time the deceased was living in her Maika. After ten months, he and his brother went to meet their sister. When crossed by the Court, informant PW-1 had denied all allegations about his family and stated that it was wrong that they themselves did not send their sister and stated that the relatives of the accused persons brought his sister back to her matrimonial home after much persuasion.

17. On confrontation about the entries in the inquest, PW-1 stated that the inquest was conducted at 10.00 AM-12.00 Noon and he reached the police station to lodge the report between 08.30-08.45 . The Circle Officer who came on the spot had noted a 'Hook' in the 'Girder' on the spot. A chair, bed and a Saree was seen by him was hanging on the hook which fell down as soon as it was touched by the Circle Officer. The dead body was lying outside the room, the spot of the incident was about 50 feet away from it. When they reached the spot, no member of the family of the accused including his grand parents were not met in the house, only the dead body was found there. It was categorically stated that there was only one house of the accused.

18. PW-1 stated that he did not lodge any report of any other incident occurred with his sister prior to the current report. The suggestion that his sister had committed suicide by hanging herself being annoyed with the accused persons was refuted by PW-1. The suggestion that the allegations of demand of dowry was made only after the informant side asked Rs.2 lacs from the accused persons because of the death of their sister and the accused was refuted. The suggestion that a false report was lodged by him was categorically refuted by PW-1. The suggestion that three accused appellants were not present in the house on the date of the incident was also refuted.

19. It was denied that the intimation of the death of the deceased was sent by her husband and the story in the FIR about the telephone call made by him on 11.7.2007 at about 3.30 PM to his village was concocted. It was stated by PW-1 that the scribe of the report was his cousin and the report was dictated to him by PW-1. They first went to the place of the incident and then to the police station. The suggestion that a false case of demand of dowry and murder was lodged by him after the suicide was committed by his sister was refuted. The further suggestion that his sister had committed suicide and it was not a case of dowry demand was refuted by PW-1.

20. PW-1 was confronted again on the orientation of the house, the room which was mentioned as the place of the incident and the position of the dead body. He stated that he went to the matrimonial house of his sister twice, the first time to bring her in Vida and second time after seven months, i.e. one day prior to her death. He did not stay in the house of his sister and came back on the same day as customary they do not stay in the house of their sister. There were seven occupants of the matrimonial house of the deceased who included grand parents in-law, parents-in-law, husband Indrajeet and two brother-in-laws of the deceased. There were six rooms in the house wherein they used to reside.

21. On confrontation, PW-1 stated that there was no toilet in the house and the occupants of the house used to go in the jungle to defecate. He was further confronted about the residence of the family members of the accused persons and refuted the suggestion that they were living in separate houses. The suggestion that he made a false report of the demand of dowry. The suggestion that the deceased had died due to an accident and he made a false report was also refuted by PW-1.

(ii) The deposition of the mother (PW-2):-

22. PW-2, is the mother of the deceased namely Nihal Dei. She stated that her daughter was harassed by the appellants and their family members due to the demand of dowry and when his son Jaipal (PW-1) when went to the matrimonial house of the deceased, the said demand of dowry was reiterated. One Indrapal, a neighbour in their village had intimated about the death of her daughter and then she alongwith other family members and villagers went to the matrimonial house of the deceased where she was lying dead in the Aangan (courtyard). The room where the deceased used to stay was seen by her and a wooden stick and one pillow was lying on the bed and seeing that they were sure that she was killed by throttling. The report was lodged by her son Jaipal examined as PW-1. She was confronted about the dowry fixed in the marriage and whether she went to the matrimonial house of her daughter between engagement and her marriage.

23. PW-2 further stated that when her daughter came back for the first time after marriage she intimated that she was being harassed for the demand of dowry. The deceased was sent to her matrimonial house after much time on the persuasion of her father and brother and after that she never came back and they got intimation about her death. PW-2 stated that her daughter stayed for about eight months in her house and, thereafter, went to her matrimonial house alongwith her husband. The appellant Indrajeet was persuaded to take her wife with him. There was no telephone in the house of the deceased. The intimation of the death was given to Indrapal by Kare Singh, father-in-law of the deceased who went to inform Indrapal on his own, who in turn informed her son Jaipal (PW-1). On receipt of the intimation of the death, they reached at the matrimonial house of the deceased and the place of the dead body lying in the house was reiterated in her statement by PW-2.

24. PW-2 was confronted about the orientation of the matrimonial house of the deceased and stated that the site plan was prepared by the police. A Saree was hanging on the 'Girder' and it came down as soon as it was touched by the police. A chair was lying on the bed. She, however, stated that no-one had told them that the deceased had committed suicide by hanging herself from the 'Girder'. When they reached at the spot of the incident, no member of the matrimonial family of the deceased was present. She was further confronted about the arrest of accused Kare Singh and that he was caught on the door of the house though other accused persons namely Indrajeet and Ved Prakash were not there.

25. The suggestion that the death was an accident was refuted by PW-2. Further suggestion that the accused persons were living separately was also refuted. The suggestion that it was a false report of the incident was refuted by PW-2, mother of the deceased. She was repeatedly confronted in her cross about the assets of the accused Indrajeet and the actual position of the spot of the incident when they reached at the matrimonial house on getting information of her death. PW-2 categorically stated that when the wooden stick, chair and a hanging Saree were found by them and the police, they thought that the deceased was killed by hanging. However, the police had clarified at the time when Saree fell down from the 'Hook' that the deceased had not committed suicide. She further stated that the relationship of her daughter and son-in-law was not cordial since the beginning and on the very first night of the marriage she was threatened by her husband accused Indrajeet, to succumb to his wishes.

Defence under Section 313 Cr.P.C:-

26. In their examination under Section 313 Cr.P.C., the accused persons had denied all incriminating circumstances but admitted in reply to question No.1 that the deceased Sri Kumari @ Guddi who was married with Indrajeet had died in their house in the village. Appellant Indrajeet, in reply to question No.2 about the cause of death of his wife (deceased) stated that she was killed by some miscreants in the jungle and information to him was given by the villagers. He further stated that he was not at home. In reply to the last question about any further defence, if any, appellant Indrajeet stated that his wife was killed in an accident by some miscreants. The family members (Maikawala) of his wife came to his home and they started telling lies and demanded money from them. When refused, a false report was lodged.

27. Appellant Kare Singh gave explanation that his son Indrajeet was living separately and he alongwith his wife and other children was living in separate house. He came to know about the incident later. A false report was lodged to create undue pressure in order to extract money.

28. Appellant Premwati gave explanation that Indrajeet was his son and she, her husband and other children were residing in a separate house from that of Indrajeet.

Defence witness:-

29. Two defence witnesses were also produced by the appellants. DW-1 is Indrapal Singh son of Badam Singh resident of another village than the village of the appellants and the informant. He stated that he had relation in the Village Kateliya wherein appellants were residing and he used to go there. Appellant Kare Singh was a neighbour of his relative Harendra and, as such, he knew him. He also knew appellant Indrajeet son of Kare Singh who was residing separately with his wife Guddi. About three years ago, he reached at village Kateliya. In the evening at around 07.00-.08.00 PM, deceased Guddi wife of Indrajeet went to the jungle where some miscreants caught hold of her to molest. On the cries of the deceased, he also reached there, then those unknown miscreants had killed her in the jungle. Information of this incident was given by him and others to Indrajeet and they took the dead body to the house of the Indrajeet. On the asking of Indrajeet, information was given at the police station and the Maika of deceased, to her brother, mother and other family members. There was no dispute between two families initially but later he came to know that a false case was lodged and, as such, he came to the Court to give testimony in defence.

30. In cross by the prosecution, DW-1 stated that he had studied upto High school and had knowledge of the date. He, however, refused to tell the date, day, month and year of the incident, i.e. when he went to Village Kataliya. DW-1, however, reiterated that it was around three years ago. He further stated that he never went to the house of appellant Kare Singh except in marriages. He then described the family members of appellant Kare Singh and stated that he knew Indrajeet both by names and his appearance though he was not aware of the names of two other accused persons. He then stated that Indrajeet was in jail and he knew that fact. DW-1 then stated that when Guddi had died, at that time, three appellants Indrajeet, his father Kare Singh and mother Premwati were arrested by the police in his absence. DW-1 further stated that he went to the jungle at about 07.30 PM all alone to defecate. When he came back lot of 'हो हल्ला' was going on and lot of villagers were collected. He, however, showed inability to tell the names of the persons in the crowd. DW-1 further stated that he never went to the house of appellant Indrajeet nor had any meal or food or even tea prepared by the wife of Indrajeet (deceased). Deceased Guddi was related remotely to him. He met appellant Indrajeet in the Court about one year ago.

31. DW-1 further stated that he did not give any written report of the incident as narrated by him in his deposition and only oral information was given to the Investigating Officer. He also admitted that he did not make any complaint about the false implication of appellant Indrajeet. A Panchayat was held in the Village Kataliya where all goods gifted in the dowry were sought to be returned to the family members (Maika) of the deceased but they did not accept the same nor they had taken money from the appellant. DW-1 further stated that he had not seen any injury on the person of the deceased Guddi and he had simply brought her home and kept the body in the house. The suggestion that he was making a false statement on account of his relationship with the accused persons was refuted by DW-1. He also denied the allegations of the murder having been caused due to demand of dowry. Lastly, DW-1 stated that he did not receive any summon of the Court and appellant Kare Singh called him on telephone from Mathura and he came to give his deposition on his asking.

32. DW-2 is Veerpal Singh son of Hardayal Singh, a resident of the village of the appellants. He stated that he knew appellant Kare Singh and his family. Kare Singh, his wife Premwati and children were living separately and Indrajeet was living in a separate set up alongwith his wife. Indrajeet got married about five years ago and both were living happily. Their houses were nearby. About three years ago in the evening wife of Indrajeet namely Guddi went to the jungle to defecate and some unknown miscreants caught her to molest and on her resistance she was killed. DW-2 stated that he also reached on the spot on hearing the cries and the information of the death was given to Indrajeet. All those people who were present on the spot took the dead body of deceased Guddi to her house and the information of the death was also given in the village. The police had reached on the information received by them.

33. In cross, DW-2 stated that appellant Kare Singh was his brother because of being resident of the same village and they belong to same 'Gotra'. His house and that of Kare Singh were nearby and he used to meet Kare Singh on a daily basis as, their fields were also nearby. He went in the Baraat of Indrajeet. The marriage was performed in a cordial atmosphere and the deceased came to her matrimonial house. The gifts given in the marriage were narrated by DW-2.

34. On confrontation by the prosecution, narrating the incident DW-2 stated that the wife of Indrajeet went to the jungle and she reached for about one furlong where crops of Bajra and Jwar was standing, there were no junglee trees or bushes. The deceased was not having any torch or Danda. He (DW-2) was coming back from his tube well. He reached the spot hearing the cries. Tube well was in the name of his father and it was located in the Chak No.241. DW-1 further stated that he did not know as to in whose chak the incident had occurred with deceased Guddi and then stated that it was a field in the chak of Rambabu who was not present in the field. He further stated that he did not see the blood oozing out of the wounds of the deceased nor any injury could be seen. The clothes and accessories worn by the deceased at the time of the incident was narrated by DW-2. He then stated that the broken bangles of the deceased were lying on the spot but they were not shown to the police. He and other villagers brought the deceased from the Jungle on a cot and she was kept in a Aangan (courtyard) of Kare Singh as dead. Her tongue was not protruded, eyes were bulged slightly. There was no electricity light in the house. Lantern and gases were lit up. A lady had shown the mark of rope in the neck of the deceased. One earring of the deceased was missing and ear was lacerated and it seemed to him that someone had pulled the earring.

35. DW-2 then stated that he came to the Court to depose without any summons and the date of the deposition was intimated to him by appellant Kare Singh. Appellant Kare Singh told him to narrate whatever was seen by him. Appellant Kare Singh met him in Mathura about one day prior to his deposition in the morning. DW-1 admitted that he had not made any written complaint about the false implication of appellant Indrajeet and that he was wrongly lodged in jail. DW-1 then stated that he was giving statement for the first time in the Court and all the abovenoted facts were intimated to the police but they did not put them in writing. He then stated that he made a complaint to the police on 13th but he did not have any proof of the same. The suggestion that he was making a false statement in order to save the accused appellants was refuted by DW-1.

Argument of the Counsels:-

36. Placing the above noted evidence before us, it was vehemently argued by Sri Rajeev Lochan Shukla learned counsel for the appellant that the death had occurred outside the house. There are serious discrepancies in the police papers (inquest and related papers) and the medical evidence (postmortem) about the cause of death. The prosecution witnesses had initially staged the case of hanging by making up the spot (room in the house) and even ligature mark was shown in the related papers to the inquest (photonash) but when no ligature mark was found in the postmortem, the cause of death was changed from hanging to throttling by introducing use of wooden sticks. This discrepancy further strengthened from the narration of the witnesses about the alleged place of the incident which was projected as a room inside the house. As per own admission of the prosecution witnesses, house was empty when they reached there on getting the information of death of Smt. Guddi. It was argued that taking benefit of the said situation, they first staged the scene of the crime and then called the police to establish the death being homicidal by hanging. All articles recovered from the spot, i.e. the room inside the house namely chair, Saree and Danda entered in the recovery memo as Exhibit Ka-'15' were planted by the prosecution witnesses. In order to substantiate the alternative story of throttling, a wooden stick was also planted and shown to have been recovered from the spot. None of the recovery witnesses were produced to support the recovery.

37. It was vehemently contended that the initial case of the prosecution was of dowry death which could not be established by bringing cogent evidence. Homicidal death is not made out nor supported by the evidence. The doctor was confronted about the discrepancies in the inquest and the postmortem report and refuted that he had instructed the police personnel to take the photograph of neck but stated that the body was shown to the Constable who brought it to indicate the absence of the ligature mark. The 'Noose' was used in the inquest in an attempt to stage the place of the incident being the room inside the house. Rather the postmortem report supports the defence theory of the incident as abrasion was found in the neck and face of the deceased, the struggle marks. The defence theory supported with the version of the occurrence by the defence witnesses further makes the injuries more probable.

38. It was argued that the prosecution witnesses admitted that the intimation of the death was given to them by Indrapal son of Badam Singh who had entered in the witness box as DW-1. The mother of the deceased/informant Smt Nihal Dei (PW-2) admitted that Indrapal was intimated about the death by appellant Kare Singh. From the deposition of PW-2, it was vehemently contended by the learned counsel for the appellant that the first information of the death was given by Kare Singh, father-in-law of the deceased, personally to Indrapal son of Badam Singh who was his neighbour and it was Indrapal who went to intimate the informant about the death. The defence has, thus, proved that the incident had occurred in the jungle in the evening outside the matrimonial house of the deceased and the body was brought to the house by the villagers including DW-2 and DW-1. The first intimation of the death was given by appellant Kare Singh to the family members of the deceased through Indrapal Singh. It was argued that the defence witnesses had been confronted, in cross, about their statements in the examination-in-chief but their version that they brought the dead body to the house of the appellants could not be demolished by the prosecution. No adverse inference can be drawn about the testimony of the defence witnesses. The defence had, thus, proved the place of the incident being the jungle, outside the house. The burden to explain the special circumstance in the knowledge of the appellants, therefore, cannot be laid upon them.

39. It was vehemently argued that, in fact, the prosecution had not been able to prove the place of the incident being the matrimonial house of the deceased, which was the initial burden cast upon it and, as such, onus cannot be shifted upon the accused appellants to explain any such circumstance. However, for the fact that the dead body was lying in the Aangan (courtyard) when the informant and the police had reached the spot, the burden cannot be shifted upon the appellants under Section 106 of the Evidence Act. The burden, if any, however had been discharged by bringing the defence witnesses in the Court who proved the manner in which the incident had occurred and this positive evidence in defence could not be discarded.

40. It is then argued that the Investigating Officer was hand-in-gloves with the informant and his family members. Inconsistencies in the police papers (inquest) about the cause of death and 'Noose' shown therein clearly establish that the prosecution witnesses in collusion with the police were trying to portray the scene of the crime as the room inside the house. The initial story narrated by the prosecution witnesses about hanging when not accepted by the police, a wooden stick (bastola), knowing the practice of using wooden stick to strangulate the neck, was planted to stage the crime. This was meticulously done with the aid of the Investigating Officer in light of the narration in the book Modi's Jurisprudence 23rd edition. It was a well planned move of the prosecution to falsely implicate the matrimonial family of the deceased, in order to take revenge by the informant in connivance with the police when the appellants did not agree to give money to settle with the family of the deceased.

41. It was further argued that the postmortem report is also cryptic and not acceptable as two doctors who had prepared the same did not give their independent opinion. The doctor entered in the witness box as PW-3 had only proved that the report was prepared and signed by him. The Investigating Officer PW-5 was confronted as to whether another doctor Khanchand had proved the postmortem report by writing "I agree" and he replied that it was correct that such a statement could not be found on the postmortem report. PW-5 also admitted that he did not interrogate the officers who prepared the inquest about the discrepancies in the postmortem report and the inquest.

42. It is then argued that in the site plan none of the distinguishable feature of any other inmates of the house had been shown. It only described details of the house and the position of the room wherein scene of crime was staged by the informant and his family. In any case, the articles entered in the memo of seizure, marked as Material exhibits could not be connected to the crime. It was argued that crucial question before the Court is as to whether considering the facts and circumstances of the case, the burden of proof can be laid upon the appellants. With the strength of the judgement of the Apex Court in Sawal Das versus State of Bihar1, it was argued that the defence case has to be accepted on the principle of reasonable belief, i.e. the circumstance may exist as the burden is lower on the defence than the burden rests upon the prosecution. Even otherwise, Section 106 does not absolve the prosecution from the primary burden on it.

43. Placing the judgement of the Apex Court in Muthu Kutty v. State2, it was argued that in the case of dowry death, if proved from the evidence on record, Section 304-B IPC stands attracted. Section 302 IPC cannot be applied as an alternative to Section 304-B IPC when the case proceeds the allegations of dowry death and they could not be established by the prosecution.

44. It was argued that in the instant case, the trial court had convicted the appellants under Section 4 of the Dowry Prohibition Act whereas they were acquitted under Section 304-B IPC and Section 3 of the Dowry Prohibition Act, which means that though the demand of dowry on the part of the parents and husband of the deceased was proved but the actual receipt of dowry could not be proved by the prosecution. The trial court has erred in recording conviction of the appellants under Section 302 IPC as an alternative to the allegations of dowry death, by laying burden upon the appellants under Section 106 of the Evidence Act. The submissions, thus, is that the conviction of the appellants is liable to be set aside on this ground alone.

45. It is lastly submitted that even if it is accepted for a moment that it was a case of homicidal death in the house, from the abrasions found on the face and neck of the deceased, mandible and left side neck, it is evident that there were no multiple assailants. It could be the act of only one person, who could not be other than Indrajeet, husband of the deceased. All other appellants namely mother-in-law and the father-in-law of the deceased made a categorical statement in their 313 Cr.P.C. examination that they were living separately from Indrajeet and his deceased wife. In any case, the involvement of two other accused namely mother-in-law of the deceased could not be established from the evidence brought by the prosecution. Mere fact that they had absconded from the house, they cannot be convicted under Section 302 IPC taking aid of Section 34 as their involvement in the act of commission of crime could not be established by the prosecution by bringing any positive evidence. The trial court has erred in convicting two accused namely Kare Singh and Premwati, father-in-law and mother-in-law of the deceased under Section 302 IPC with the aid of Section 34 sentencing them to life imprisonment.

46. It is lastly argued with vehemence that reliability of the defence witnesses has to be tested by the Court, in as much as, out of two defence witnesses, one DW-2 though is a neighbour but an independent witness. Independence and partiality of DW-1 has to be tested from his deposition and even the best possible testator cannot say that the defence had not discharged the burden by principle of preponderance of probability. The defence theory has created a deep dent in the prosecution story and as such the circumstances brought on record by the defence with the proof that the death had occurred outside the matrimonial house of the deceased in an accident, the conviction of all the appellants herein cannot be sustained.

47. Learned AGA, in rebuttal, would submit that none of the defence witnesses (DW-1 and DW-2) can be said to be reliable. They have not made any complaint to the higher authority that Kare Singh and his family had been falsely implicated. There is contradiction in the version of the defence about the information given to the informant. Indrapal as DW-1, stated in his examination-in-chief that he gave information to the family members of the deceased (informant and parents and relatives) on the asking of appellant Indrajeet. The suggestion given by the defence to PW-2 mother of the deceased in her cross examination that Indrapal was intimated by the appellant Kare Singh is in contradiction to the own evidence of DW-1. When Indrapal (examined as DW-1) stated that he saw the incident in the jungle and brought the dead body to the house of Indrajeet, the suggestion of the defence to PW-2 that he was intimated about the death by appellant Kare Singh becomes false. It could be vice-versa, i.e. once defence had given a suggestion to PW-2 that Indrapal (DW-1) was intimated about the death by accused appellant Kare Singh, the version of DW-1 in defence that he was present on the spot, i.e. jungle and brought the dead body alongwith other villagers and further gave information to the family members of the deceased on the asking of Indrajeet becomes false. Even otherwise, the defence theory that the deceased met with an accident in the jungle where she went to defecate is unbelievable, in as much as, none of the members of the matrimonial family of the deceased including her husband gave intimation to the police about the death when the deceased had died in unnatural circumstance. The accused appellants who were occupants of the house in which the deceased resided had absconded from the scene. It is argued that the circumstances brought by the defence witnesses were not narrated by two accused Kare Singh and Premwati in their defence under Section 313 Cr.P.C. They rather took the defence that they were living in a separate house, which could not be proved by them by bringing any positive evidence. The evidence of DW-1 in this regard is insufficient. The site plan and the evidence of the PW-1 as also the Investigating Officer show that it was a big house having 5-7 rooms and a big Aangan (Courtyard) and all the family members including grand parents of appellant Indrajeet were living in the same house. It was a case of homicidal death occurred in the matrimonial house of the deceased and the dead body was found lying in the Aangan (Courtyard) of the said house. The burden thus, has to be laid upon the appellants to explain the circumstances in which the homicidal death of the deceased had occurred by virtue of the provision of Section 106 IPC. The explanation offered by the accused persons especially the husband of the deceased namely Indrajeet is found to be false. It is a strong circumstance which indicates that he is responsible for commission of the crime. Reliance is placed on the decision of the Apex Court in Trimukh Maroti Kirkan vs State Of Maharashtra3.

48. It is further argued that answer to question No.1 in the examination of the accused persons under Section 313 Cr.P.C. is an admission about the place of the death of the deceased and this admission is an exculpatory statement. The answer to question No.2 is inculpatory statement. From the reading of answers to question Nos.'1' and '2' together of two accused namely Kare Singh and Premwati it can be seen that they did not make any statement about the incident having occurred outside the house. It is argued that the statement made in defence by the accused under Section 313 Cr.P.C. can be taken aid of to lend credence to the evidence lead by the prosecution. It is also possible to rely on the inculpatory part of the statement of the accused if the exculpatory part is found to be false on the basis of the evidence lead by the prosecution. Reliance is placed upon the decision of the Apex Court in Mohan Singh vs. Prem Singh4 to substantiate the said submissions. It is, thus, argued that the prosecution had proved that the deceased met her death in her matrimonial home. The appellants being normal occupants of the house were under obligation to discharge the burden laid upon them under Section 106 IPC as the explanation given by them in defence under Section 313 Cr.P.C. is found to be false. Considering the prosecution evidence on record, the conviction of the appellants under Section 302 IPC cannot be interfered with. About the conviction under Section 4 of the Dowry Prohibition Act, it was argued that the demand of dowry by the appellants, matrimonial family of the deceased, was proved by the prosecution witnesses. The conviction of the appellants under the said provision cannot be faulted.

49. In the totality of facts and circumstances of the case, no interference can be made in the decision of the trial court. The appeal deserves to be dismissed accordingly.

Analysis:-

50. Having heard learned counsel for the parties and perused the record.

51. The prosecution case is based purely on the circumstantial evidence. In a case resting on circumstantial evidence, chain of circumstances must be established completely. If the facts that form a chain of circumstances inescapably point to the guilt to the accused only then he can be convicted and not otherwise. The test to be applied for determining whether circumstantial evidence would lead to the conviction of the accused have been authoritatively laid down in various judgements of the Apex Court. These tests are;- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

52. The circumstances brought by the prosecution to establish the guilt of the accused persons in the instant case are:-

(i) First Information Report:-

53. The first information report was lodged by the brother of the deceased Jaipal Singh who appeared in the witness box as PW-1. He stated that on 11.07.2007, one day prior to the incident, he went to the marital home of the deceased and on that day the demand of Rs.1 lac in dowry was pressed by the accused persons. They also abused the informant (PW-1) when he showed his inability and the said fact was also intimated to his father who told him to come back. On the next day i.e. 12.07.2007 at about 05.30 AM, the neighbour of PW-1 Indrapal son of Badam Singh came to inform that his sister was killed. He alongwith his family members and other villagers went to the house of his sister where she was found dead lying in the Aangan (Courtyard). The villagers and family members present when asked informed that his sister had committed suicide in the evening on the previous day by hanging herself. When they reached at the place of the incident, which was the room of the deceased, one chair was kept on the bed in a proper manner, a pillow was kept at the middle of the bed and a wooden stick was lying at the head side of the bed. Looking to the said position of the place of the incident and noticing the articles lying there, they got suspicious that the deceased was killed by her in-laws and husband by throttling for non fulfillment of the demand of dowry. PW-1 categorically stated that when he went to the house of his sister on 11.07.2007 before the incident, her in-laws did not allow him to meet his sister.

54. The first information report was then lodged by PW-1 scribed by Satyaveer son of Jahan Singh. It is proved by PW-1 that the narration in the first information report were scribed on his dictation, it was read over to him and then he made his signature. The written report was proved as Exhibit Ka-1 bearing signature of PW-1. The written report was, thus, lodged by PW-1 when he came to the marital home of his sister on getting information of her death, which was given by his neighbour Indrapal Singh son of Badam Singh.

55. The check report proved by PW-4, Constable clerk as Exhibit Ka-11, being in his handwriting and signature, indicates the time of the incident at about 07.00 PM on 11.07.2007 and the time and date of lodging of the report as 12.07.2007 at 08.45 AM. The G.D. entry No.15 at 08.45 AM of the first information report had been proved by PW-4 as exhibit Ka-12 being in his handwriting and signature. The suggestion of the report being ante time given to PW-4 was categorically refuted by him. PW-4 stated in cross that the police Constable Murshid and Jagdish Singh had left the police station on 12.07.2007 at about 08.45 AM alongwith the Station House Officer. PW-5, the Investigating Officer stated that he received investigation soon after the registration of the case at the police station. He recorded the statements of the Constable clerk and the informant Jai Pal Singh. After inspection of the spot of the incident at the pointing out of the informant, statements of the mother and sister-in-law of the deceased were recorded on the spot. The statements of the accused persons were recorded on 14.07.2007 in the case diary.

56. The contention of the learned counsel for the appellant is that the scene of the crime was made up by the prosecution witnesses and the articles shown in the recovery memo such as chair, pillow, wooden stick were planted by them in order to create the scene of death having been occurred inside the house of the appellants. The story in the first information report that initially the villagers and family members told them that the deceased had committed suicide in the evening on 11.07.2007 and when they reached in the room of the incident, they saw a wooden stick lying on the bed and seeing that they got suspicious and believed that the deceased had been killed by throttling by the appellants. The contention is that the cause of death had been changed from hanging to throttling by using wooden stick planted, at the alleged place of the crime.

57. This statement about the allegations in the first information report has to be seen alongwith other evidence on record. However, suffice it to note that there is no dispute about the date and time of the lodging of the first information report which was in the morning at 08.45 AM on 12.07.2007, setting the criminal law in motion.

(ii) Homicidal death, inconsistencies in the version of the inquest.

58. It is proved from the injuries found on the person of the deceased and the deposition of the doctor (PW-3) that it was a case of throttling and there were marks of injuries of nail on the mandible and neck of the deceased. There was no mark of ''Noose' and all suggestions of the death having been caused by hanging had been categorically refuted by PW-3. No contradiction in the statement of the doctor and the postmortem report could be placed before us by the learned counsel for the appellant. The insistence in the argument of the learned counsel for the appellant is that there are serious discrepancies in the police papers, i.e. the inquest and related papers and medical evidence about the injuries found on the person of the deceased. The contention is that the injuries in the inquest report had been indicated as ligature mark and the inquest witnesses had expressed their opinion that it was a case of hanging. In photonash also, the ligature mark had been shown which is contrary to the finding in the postmortem report. It is, thus, argued that the cause of death was changed from hanging to throttling by wooden stick during the course of investigation in order to falsely implicate the appellants as author of the crime. The submission is that, as per own contention of the prosecution witnesses, the house was empty when they reached on getting the information of death of Smt. Guddi, the body was lying in the Aangan (Courtyard) of the house and the prosecution witnesses got sufficient time to make up the scene, i.e. room inside the house, where deceased used to live, by planting the articles like chair, Saree and Danda initially to establish it as a case of hanging and then throttling by wooden stick after the postmortem was conducted and the report was received. It is, thus, argued that homicidal death of the deceased inside the house of the appellants or her marital home could not be proved by the prosecution. The act of the prosecution witnesses in making up the scene of the crime demolishes the entire prosecution case at the outset. The deposition of the witnesses is not credible when they speak that the death was caused inside the house and that the place of the incident was room inside the house.

59. Considering the said submissions of the learned counsel for the appellant, we have gone through the statement of PW-1 who had categorically proved that he reached at the marital home of his sister (deceased) on 12.07.2007 at about 08.00 AM. The police had not reached at the spot. The inquest was conducted on the spot by the police and he had seen the dead body of his sister. There were marks of injuries in her neck and tongue was protruded while dead body was lying in the Aangan (Courtyard). On confrontation, he stated that he had no knowledge of the place of the death of her sister. On further confrontation, PW-1 had proved that the inquest was conducted between 10.00 AM to 12.00 Noon and they had reached at the police station to lodge the report between 08.30-08.45 AM. The articles which were recovered from the spot, i.e. room were also noticed by the Circle Officer. The chair, bed and Saree were seen by him on the spot which was the room inside the house. The Saree was hanging on a ''Hook' in the ''Girder' of the room and it fell down as soon as it was touched by the Circle Officer. It was stated by PW-1 that the dead body of his sister, however, was lying outside at the distance of 50 feet from the place of the incident. He categorically stated that when he went to report the police, no-one from the family of his brother-in-law, i.e. husband of the deceased including his grand parents met them, only the dead body was lying on the spot. The recovery of Saree, chair and wooden stick from the room inside the house had been proved by the Investigating Officer PW-5 with the proof of his signature on the recovery memo Exhibit Ka-15 which he got prepared from Sub Inspector Sri Prem Babu on the spot. The recovered articles were brought in the Court in sealed state and were marked as Material Exhibit 1, 2 and 3 on the identification of the same by PW-5. The site plan of the house was prepared at the instance of the informant proved by PW-5 as Exhibit Ka-3, being in his handwriting and signature.

60. A perusal of the site plan indicates that it was a big house and the room wherein the incident had been alleged to have occurred was at the back side. In the site plan, ''Hook' in the ''Girder', the chair lying on the bed and the bed had been shown. It is argued by the learned counsel for the appellant from the narration in the index about the recovery of Saree, chair, bed on the spot that the said facts were recorded on the statement of PW-1, the informant. The entries of the articles found on the scene were not the result of the observations of the Investigating Officer. The statement of PW-5, in cross, has been placed before us to assert that the Investigating Officer (PW-5) had admitted that the situation of the bedroom i.e. the articles namely bed, plastic chair, wooden stick and Saree were shown to him by the informant at whose instance the site plan was prepared and those articles were then taken into possession. The submission, thus, is that the prosecution witnesses made up the scene of the incident in the room inside the house taking benefit of it being empty, by placing a chair and Saree initially to portray it a case of hanging and then planted wooden stick to support their case of the death by throttling.

61. To deal with this submission of the learned counsel for the appellant, we may record that the appellants were ordinary residents of the house, wherein the deceased was found dead. The body was lying in the Aangan (Courtyard) of the house as per the statement of the prosecution witnesses when they reached at the spot receiving the information that the deceased was killed. All the ordinary occupants of the house had fled away and were not met when the prosecution witnesses had reached. Some villagers, who were family members of the appellants had informed them initially that the deceased had died due to hanging. The initial version of PW-1 in the first information report as noted above is that they were told by the villagers/family members that the deceased had committed suicide by hanging on 11.07.2007 in the evening but when they reached at the place of the incident, i.e. the room inside the house, the plastic chair was kept in a proper manner and a pillow was lying on the bed. The said statement in the first information report was reiterated by PW-1 in his examination-in-chief to assert that when they saw the situation of the room and the articles such as chair, pillow and wooden stick lying there and that they got suspicious that the deceased was killed by throttling, by her husband and in-laws. In this part of the deposition of PW-1, his statement is consistent to the extent that when they reached at the marital home of the deceased, her dead body was lying in the Aangan (Courtyard) and people of the village told them that the deceased had committed suicide, however, on looking to the condition of the room, being suspicious of the cause of the death, the first information report was lodged. The categorical statement of the PW-1 in the first information report and his examination-in-chief that his sister was killed by throttling had been proved with the findings in the postmortem report about the cause of death being throttling. We, therefore, do not find any substance in the contention of the learned counsel for the appellants that the prosecution witnesses themselves projected it a case of hanging initially and changed it to throttling after noticing finding in the postmortem report.

62. About the entries in the inquest with regard to the injuries and opinion of the inquest witnesses as to the cause of death, suffice it to note that the object of the inquest proceedings is merely to ascertain whether a person has died under unnatural circumstances or unnatural death. The inquest report is not a piece of substantive evidence and can be utilized only for contradicting the witnesses to the inquest examined during trial. Any discrepancies occurring therein cannot be termed as fatal or suspicious circumstances which would warrant benefit of doubt to the accused. (Reference Madhu @ Madhuranatha & Anr vs State Of Karnataka5 ) (emphasis paragraph 22). None of the inquest witnesses had been examined by the prosecution. Be that as it may, the observations made by the inquest writer about the injuries on the person of the deceased cannot be said to be contradictory or inconsistent to the postmortem report which also indicates that abrasion on left side of the neck of the deceased was found during postmortem. There may be exaggeration or confusion in the minds of the inquest writer and witnesses about the cause of death because of the marks of injuries in the neck of the deceased. The ligature marks shown in the inquest and related papers seems to be the result of the said confusion. The inquest writer namely the Nayab Tehsildar had opined therein that it may be a cause of hanging but to know the actual cause of death, postmortem was necessary. It is, thus, evident from the statement of the inquest report that the opinion expressed by the inquest witnesses and the inquest writer about the cause of death was relevant merely to ascertain whether the deceased had died under unnatural circumstance or met an unnatural death, which had been proved from the observations recorded by the inquest writer. Whether it was a case of hanging or throttling could not have been established at the stage of the inquest. The observations in the medico legal report, i.e. postmortem report are based on the findings of the experts, the postmortem doctors one of whom had entered in the witness box as PW-3. As per their findings, there were marks of injuries, i.e. abrasion on the left side of the neck and mandible on the right and outer side. The tongue was protruded, face and nails became blue, trachea was congested and hyoid bone was fractured. The doctor had categorically stated in his deposition that there were no marks of injuries of ''Noose'. The finding about the cause of death had, thus, been recorded that it was due to asphyxia as a result of throttling.

63. The doctor PW-3 had proved his signature on the inquest and other related papers which were brought to him by the police constable alongwith the dead body. He also proved the postmortem report being in his handwriting and signature. He was confronted about the inconsistencies in the inquest and the postmortem papers, the findings of ''Noose' around neck of the deceased in the inquest, photonash and other related papers. PW-3 had categorically stated that he could not find the mark of ''Noose' on the neck and he was under not obligation to explain any inconsistencies in the police papers as it was the duty of the police officers. PW-3, the doctor was confronted on his finding about the fracture of hyoid bone and the suggestion was given to him that hyoid bone could be fractured in a case of hanging. PW-3 had proved that the abrasion which were found on the dead body were marks of injuries of nails.

64. From the findings recorded in the postmortem report and the deposition of PW-3 (doctor) about the cause of death, it is established that the deceased was killed by throttling and it was a case of homicidal death. The suggestion of the villagers and other family members to the informant that the deceased had committed suicide was dispelled with the inspection of the scene of the crime, the statement of PW-1, informant who was the first one to reach at the scene of the crime that when he reached at the spot of the incident, no member of the marital family of the deceased was present on the spot.

65. PW-5 the Investigating Officer was confronted that there was statement in the first information report about the ''Noose' in the neck of the deceased and he categorically refuted the same. The inquest was conducted by the Tehsildar after the Investigating Officer had reached the spot. The Investigating Officer when confronted about the Saree hanging on the ''Hook', he stated that it was not shown to him by the informant. The statement of the informant namely PW-1 that a Saree was hanging on the ''Hook' and it fell down when it was touched by the Circle Officer investigating the spot may be a result of exaggeration but in any case, the statement of PW-1 that the Circle Officer had inspected the spot cannot be said to be in contradiction to the version of the Investigating Officer about the scene of the crime, i.e. the room inside the house wherefrom a Saree, a chair and a wooden stick were recovered. It was proved by PW-1 that the said room was the bedroom of his sister (deceased) and her husband in her matrimonial home. It is categorically stated by PW-1 that the entire house was open when they reached and appellant Indrajeet was not present in the house, the dead body of his sister was lying in the Aangan (Courtyard). From the postmortem report, it is evident that it was homicidal death as it was a case of throttling. Any inconsistencies in the inquest can be explained from the marks of injuries found on the neck of the deceased which could be the reason of confusion in the mind of the witnesses having been caused due to hanging. The explanation offered by the witnesses in their cross examination about the said discrepancies is sufficient to explain the inconsistencies in the record. The arguments of the learned counsel for the appellants about the inconsistencies in the version of the inquest and other police papers with that of the medico legal report (postmortem), thus, are liable to turned down.

(iii) Plea of alibi of parents-in-law:-

66. There is suggestion of the defence to the prosecution witnesses that two appellants namely parents-in-law of the deceased were living in a separate house. In their examination under Section 313 Cr.P.C., appellants Premwati and Kare Singh (parents-in-law) took defence that they were living separately from that of their son Indrajeet, husband of the deceased. PW-1, informant made a categorical statement that the appellants had one house wherein the entire family was living and there was a place called 'Nohra' inside the house for the cattle. The suggestion was given to PW-1 that the grand father-in-law and mother-in-law of the deceased were living in the front portion of the house and father-in-law and mother-in-law were living in the upper portion of the house. A suggestion was also given to PW-1 that all the occupants of the house including the appellants herein namely Indrajeet, Kare Singh and Premwati were not present in the house at the time of the incident. A suggestion was also given to PW-1 that the information of death was sent by the husband of the deceased to the house of the informant. From the suggestion given by the defence, the categorical statement of PW-1 as also the site plan prepared by the Investigating Officer, it becomes evident that the house of the appellants was a big house and all the family members including the parents-in-law of the deceased were living in the same house. A suggestion was also given to PW-5 that there was another house of the appellant Kare Singh (father-in-law) and he refuted the same by saying that he had no information of the said fact.

(iv) The next issue is about the place of murder/incident:-

67. It is vehemently argued by the learned counsel for the appellant that the incident of murder of the deceased had occurred outside the house and for the fact that the body was lying in the Aangan (Courtyard), the burden to explain the circumstances relating to death of the deceased cannot be laid on the appellants with the aid of Section 106 of the Evidence Act. The issue about the place of the murder of the deceased, thus, assumes significance so as to ascertain as to whether the appellants can be held guilty of commission of murder of the deceased, one of the occupants of the house wherein appellants were ordinarily residing.

68. As per the prosecution, the incident had occurred inside the house and the place was the bedroom of the deceased, located at the back side of the house. A perusal of the site plan indicates that it was a big house and the informant (PW-1) informed the Investigating Officer at the time of preparation of the site plan that he was told that the deceased had committed suicide and at the place of the incident, i.e. bedroom of the deceased, a chair was kept on the bed and a Saree was stuck in the ''Hook' in ''Girder' on the roof of the said room. The first informant had proved the orientation of the marital home of the deceased and categorically stated in the cross examination by the Court that the house of the appellants was constructed in an area of approximately one Bigha or so. He stated that he was not sure as to whether the grand parents of the appellant Indrajeet were residing at the back side of the house or at the front but they were ordinary residents of the house. The bedroom of his sister and brother-in-law was at the back side of the house. He further stated that he went to the maternal house of his sister only once or twice and, therefore, he could not give details as to which of the rooms of the house was occupied by amongst the family members.

69. It was proved by the prosecution that when the informant alongwith his family members and relatives reached at the marital house of the sister on getting information of her death, only villagers and some other family members met on the spot. The house was lying vacant and the body of his sister was lying in the Aangan (Courtyard) of the house. It is categorically stated by PW-1 that the information of death was not given by any villagers of the village Baghai, (village of the appellant) rather a neighbour of another village, (which was at a distance of one and a half kilometer from his village) had informed about the death. PW-1 categorically stated that they had not seen the house which was open when they reached on 12.07.2007 at about 08.00 AM and went only in the bedroom of his sister. Looking to the situation of the bedroom, seeing wooden stick and pillow they believed that she was killed by throttling and the story narrated by the villagers about the suicide by hanging was not believable. It may be noted that PW-1 had been confronted that his sister had committed suicide as she was short-tempered. It was also suggested to the informant that the grand parents-in-law of the deceased were residing at the front side of the house and parents-in-law (Kare Singh) were residing in the upper portion of the house. It was also suggested that appellants Indrajeet, Kare Singh and Premwati were not present in the house at the time of the incident. It was also suggested that the intimation of death was given by the husband of the deceased. The informant was given suggestion that his sister had committed suicide and a false case of dowry death had been registered by him. The informant PW-1 had categorically refuted the suggestion that his sister had committed suicide and the appellants were not present in the house or they were residing in the different portions of the house. The suggestion that the intimation of death was given by the husband of the deceased had also been refuted by PW-1. The informant PW-1 was further confronted by the defence about their theory of the death having been caused outside the house. It was admitted by the informant that there was no bathroom in the house of appellant Indrajeet and they used to go to jungle to defecate. He was also suggested that even the ladies of the house would go to jungle either in the morning (wee hours) or in the evening (after dawn). He was also suggested that the parents-in-law of the deceased i.e. the appellant herein namely Kare Singh and his wife Premwati as also the grand parents-in-law of the deceased were having separate ration cards and Indrajeet, husband of the deceased was also having separate ration cards and they were residing in different houses. This suggestion was categorically refuted by PW-1.

70. The deposition of PW-2, the mother of the deceased as to how and when they reached at the maternal house of the deceased and the situation of the bedroom of the deceased is in sync with the statement of the informant PW-1. She has also refuted the suggestion that Indrajeet and deceased and all other family members were residing separately. On the suggestion given to PW-2 that they had separate ration cards, she categorically replied that she did not know the said fact and it seemed that they got separate ration cards prepared after the incident. She had further denied the suggestion that the death had been caused outside the house and it was a case of murder by some miscreants in an effort to rape the deceased and information of the said incident was given to them by the husband of the deceased. PW-2 in noun-certain terms had refuted the suggestion of the deceased and her husband residing separately from their parents.

71. The suggestion of the defence is that the prosecution witnesses had staged the scene of the crime being the bedroom of the deceased in order to falsely implicate the entire family of the appellants Indrajeet, husband of the deceased. The story of the demand of dowry on the visit of the informant, on the date of the incident had been narrated in order to take undue benefit of Section 304-B IPC to implicate all the family members for the death. They planted wooden stick on the spot, i.e. in the bedroom of the deceased in order to bring it as a case of death by throttling. The suggestion was given to the prosecution witnesses PW-1 and PW-2, brother and mother of the deceased that the deceased was killed outside the house by some miscreants when she went to defecate.

72. Contrary suggestion had also been given to both the prosecution witnesses that the deceased had committed suicide. It is categorically stated by the witnesses (PW-1 and PW-3) that when they reached at the house of the appellants on getting information of the death, the body was lying in the Aangan (Courtyard) and there were marks of injuries on the neck of the deceased. The appellants were not present in the house and the villagers and other family members intimated them that the deceased has committed suicide. When they went to see the bedroom of the deceased, the articles lying there and the manner in which the room was made up belied the story of suicide by hanging. Seeing the marks of injuries on the dead body and the pillow and wooden stick lying on the bed, they got suspicious that it was a case of death by throttling. PW-1 the informant made this categorical statement in the written report itself given by him on 12.07.2007 at about 08.45 AM. The averments in the first information report, in this regard, are corroborated with the statement of PW-1 and PW-2 (brother and mother of the deceased). Both the witnesses were confronted about the articles lying in the bedroom of the deceased but they were not confronted that the room wherein these articles were lying was the bedroom of the deceased and her husband namely Indrajeet (appellant herein). The witnesses were confronted as to how they could believe that it was a case of throttling but there was no suggestion to any of the two witnesses that they had planted wooden stick to stage the place of the crime. They were confronted about the articles such as wooden stick, chair and Saree hanging in the ''Hook' and whether it was located by them or the police. Both the witnesses categorically stated that when they went in the bedroom of the deceased, they saw those things lying there but they did not touch them. When they reached at the spot, police was not present and the police came only after the first information report was lodged. When the Circle Officer came to inspect the spot of the incident, during the course of inspection, when hanging Saree was touched by him it fell down. This fact further strengthened their belief and the police also told them that it was a case of hanging. PW-2 categorically stated that the room where Saree was hanging on the hook was the bedroom of deceased located at the back side of the house. Police had told that it was not a case of suicide by hanging as Saree fell down on touching it.

73. The prosecution has, thus, established that it was a case of homicidal death (unnatural death) occurred in the house, wherein the deceased and her maternal family namely husband, parents-in-law and grand parents in law were residing together as it was proved by the prosecution that the appellants were ordinary residents of the house and the story put-forth by defence that they were residing in a separate house could not be proved, the burden, thus, lay upon the accused persons to explain the circumstances in which the death had been caused.

74. In order to explain the said circumstances, the appellant Indrajeet had given an explanation in his examination under Section 313 Cr.P.C. in reply to question No.'14' which is relevant to be extracted hereinunder:-

"प्रश्न-14 क्या कुछ और कहना है?

उत्तर-मेरी पत्नी की मृत्यु दुर्घटनावश बदमाशों द्वारा कारित की गई। मेरी पत्नी के मायके वाले हमारे घर आये तथा गलत बातें शुरू की और हमसे मुकदमा न करने के लिये पैसे मांगे। हमारे मना करने पर झूठा रिपोर्ट लिख दी।"

75. The explanation offered by appellant Indrajeet, husband of the deceased was that it was a case of accident and the murder was caused by some miscreants. However, in reply to question No.1, wherein it was put to the appellant Indrajeet that he got married with the deceased in February 2005 and his wife had died on 11.7.2005 in his house situated at village Kataliya, Police station Naujheel, District Mathura, it was admitted by the appellant with the answer that "it was correct". However, when the circumstance of death of the deceased by throttling was put to him in question No.'2', his answer was that "it was wrong and some miscreants had killed her in the jungl. Some villagers informed him and he was not at home". Both the question No.'1' and '2' and their answers are relevant to be extracted hereinunder:-

"प्रश्न-1 आपके विरूद्ध यह साक्ष्य है कि वादी जयपाल की बहिन श्री कुमारी उर्फ गुड्डी का विवाह आपके साथ फरवरी 2005 में हुआ था। एवं दिनांक 11.07.2007 को उसकी आपके गांव वाके कटेलिया थाना नौहझील, मथुरा स्थित मकान में निधन हो गया, इस सम्बंध में आपको क्या कहना है? उत्तर- सही है।

प्रश्न-2 आपके विरूद्ध यह भी साक्ष्य है कि वादी की बहिन की मृत्यु उसके गला घोंटने के कारण हुई, इस सम्बंध में आपको क्या कहना है? उत्तर- गलत है। जंगल मे बदमाशों ने उसे मार दिया था। ऐसा गांव वालो ने बताया था। मै घर पर नहीं थ।"

76. For convenience, relevant question No.'1', '2' and question No.'14' of the examination of other two appellants Kare Singh and Premwati under Section 313 Cr.P.C. are also being reproduced:-

Statement of Kare Singh;-

"प्रश्न-1 आपके विरूद्ध यह साक्ष्य है कि वादी जयपाल की बहिन श्री कुमारी उर्फ गुड्डी का विवाह आपकें पुत्र के साथ फरवरी 2005 में हुआ था। एवं दिनांक 11.07.2007 को उसकी आपके गांव वाके कटेलिया थाना नौहझील, मथुरा स्थित मकान में निधन हो गया, इस सम्बंध में आपको क्या कहना है? उत्तर- सही है।

प्रश्न-2 आपके विरूद्ध यह भी साक्ष्य है कि वादी की बहिन की मृत्यु उसके गला घुटने के कारण हुई, इस सम्बंध में आपको क्या कहना है? उत्तर- गलत है।

प्रश्न-14 क्या कुछ और कहना है?

उत्तर- इन्द्रजीत मेरा लड़का है। वह हमसे अलग रहता है। मै अपनी पत्नी व अन्य बच्चो के साथ अलग रहता हूँ। हमे घटना के बारे में बाद मे जानकारी हुई। पैसे लेने के लिये अनुचित दवाव डालने के लिये झूठी रिपोर्ट लिख दी है।"

Statement of Premwati:-

"प्रश्न-1 आपके विरूद्ध यह साक्ष्य है कि वादी जयपाल की बहिन श्री कुमारी उर्फ गुड्डी का विवाह आपकें पुत्र के साथ फरवरी 2005 में हुआ था। एवं दिनांक 11.07.2007 को उसकी आपके गांव वाके कटेलिया थाना नौहझील, मथुरा स्थित मकान में निधन हो गया, इस सम्बंध में आपको क्या कहना है? उत्तर- सही है।

प्रश्न-2 आपके विरूद्ध यह भी साक्ष्य है कि वादी की बहिन की मृत्यु उसके गला घुटने के कारण हुई, इस सम्बंध में आपको क्या कहना है? उत्तर- गलत है।

प्रश्न-14 क्या कुछ और कहना है?

उत्तर- इन्द्रजीत मेरा लड़का है। वह हमसे अलग रहता है। मै अपने पति व अन्य बच्चों के साथ इन्द्रजीत से अलग मकान मे रहती हूँ।"

77. The appellants Kare Singh and Premwati in their examination under Section 313 Cr.P.C. had also admitted that the deceased had died on 11.07.2007 in the house situated at village Kateliya, P.S. Naujheel, District Mathura. They however, denied the evidence that she was killed by throttling. Though the plea of alibi had been taken by both the appellants namely Kare Singh by saying that they were residing separately from their son Indrajeet and his wife but they did not take the plea that the death had occurred outside the house or the deceased was killed by some miscreants. They did not even state as to how and when they got the information of death of their daughter-in-law (deceased) if they were living in a separate house.

78. The explanation offered by the appellant Indrajeet in his defence under Section 313 Cr.P.C. is sought to be supported with the statement of two witnesses produced in defence. DW-1 is Indrapal Singh son of Badam Singh resident of village Chinta ki Nagaria, P.S. Gonda, District Aligarh. He stated on oath that he had relations in village Kateliya, the village of the appellants and he used to go there, Kare Singh was neighbour of his relative and as such he knew him. He also knew Indrajeet who was residing separately and got married with the deceased Guddi. As noted in the testimony of Indrapal Singh (DW-1) he stated to have gone to the village Kateliya and then jungle at about 07.00 PM where some miscreants caught hold of the deceased to molest. On her cries when he (DW-1) reached the spot, the miscreants had killed the deceased. This intimation was given by him to Indrajeet and other people body was brought to the house of Indrajeet and on the asking of the Indrajeet he gave intimation to the brother, mother and other family members of the deceased in her Maika in village Heerpur.

79. As noted above DW-1 did not know the family of Kare Singh and knew Indrajeet by name and face but names of other two sons of Kare Singh were not known to him. He never went to the house of accused Kare Singh. The reason of his presence on the spot of the crime, i.e. jungle he stated that he went all alone to defecate. When confronted about the injuries on the persons of the deceased, DW-1 stated that he did not see the injuries and brought only the dead body and kept at the house. When asked whether he had given any written information about the incident as narrated by him, he denied and stated that oral intimation was given to the Investigating Officer. He further stated that he went to meet accused Indrajeet in the Court about one year prior to his deposition and he came to the court on the asking of the appellant Kare Singh.

80. DW-2 a resident of the same village of the accused side in his examination in chief, stated that Kare Singh, with his wife and children was living separately from Indrajeet and his wife, and Indrajeet and his wife, were living happily in the house which was near to his house. In the evening, on the fateful day, he went to defecate in the jungle and some unknown miscreants caught hold of Guddi (deceased) to molest and killed her. He reached the spot on hearing the cries and the information of the death was given to Indrajeet by him. Many villagers were present and the body was brought to the house of Kare Singh. He disclosed being close to Kare Singh and that he also attended the marriage of Indrajeet. When confronted as to how he reached the spot, DW-2 stated that he was coming back from his tube well and on hearing the cries he went to the spot. He was further confronted about the place of the occurrence and as to whether he had shown the spot of the incident to the police, DW-2 admitted that though broken bangles of the deceased were lying on the spot not shown to the police. They brought the deceased from the jungle on a cot and it was kept in the Aangan of Kare Singh. The tongue of the deceased was not protruded and only eyes were bulging. He further tried to create a scene of robbery by saying that one earring of the deceased was missing and ear was lacerated and it seemed to him that someone had tried to snatch the earring or removed it. It was also admitted by DW-2 that he had reached in the Court on the asking of Kare Singh who told him to depose whatever was seen by him. When confronted, DW-2 stated that he had never given a written report that Indrajeet was falsely implicated and for the first time he was giving statement in the Court about the incident. In the same breath, DW-2 stated that he informed the police but report was not lodged and then stated that he made complaint to the police on 13th but he had no evidence of the same.

81. On the collective reading of the statement of accused under Section 313 Cr.P.C. and defence witnesses DW-1 & DW-2, the probability of the story brought by the defence is to be evaluated.

82. The test to evaluate the story of the defence is not proof beyond doubt but a reasonable belief on the principle of preponderance of probability that the story put forth by the defence may be true. It is settled that the prosecution has to discharge its initial burden of proving its case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. Section 106 can be called in aid by the prosecution only when it has succeeded in discharging its initial or primary burden of proving the guilt of the accused beyond reasonable doubt. Section 106 does not absolve the prosecution from the duty of discharging its initial burden. (Reference Sawal Das vs State Of Bihar, (the judgement relied by the learned counsel for the appellants). Further it is settled that the burden of proving the plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. However, the burden on the accused is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. It is sufficient if the accused/defence by producing a positive evidence or otherwise succeed in discharging his burden of creating a reasonable believe that circumstances absolving him from criminal liability may have been present. In any case, the prosecution cannot be absolve of its burden and the defence theory has to be tested at a lower threshold (i) of reasonable believe; (ii) the circumstance brought by the prosecution in its evidence may have existed. (Reference Gurcharan Singh vs State Of Punjab6 )

83. In light of the above principles, testing the evidence led by the defence and the defence of the accused under Section 313 Cr.P.C., pertinent is to note that the defence witness DW-1 was resident of another village under the police station Gonda, his version of being present on the spot at the time of the incident when the deceased was killed outside her house in the jungle, when tested on the touchstone of belief of a reasonable man of ordinary prudence on the principle of preponderance of probability, cannot be accepted. This witness Indrapal Singh son of Badam Singh had admitted that he had informed the parents of the deceased about the incident of death. This fact was stated by informant PW-1 in his deposition. DW-1 Indrapal Singh was resident of a village which was one and a half kilometer away from the village of the informant side. As to how he had reached at the place of the incident, the jungle in another village at the time of attack on the deceased, is questionable. It was admitted by DW-1 in his cross examination that he never went to the house of appellant Kare Singh and had never met the wife of Indrajeet, i.e. the deceased. He also admitted that he did not give any written information to the police nor his statement was ever recorded, he came to the Court to depose on the asking of Kare Singh.

84. Similarly DW-2, the residents of the same village, in a very casual manner stated that the deceased was killed in the jungle and he reached on hearing her cries and seeing her dead, brought her dead body in the house. In the statement of DW-2, it has come that he brought the dead body and kept it in the Aangan (Courtyard) of Kare Singh, whereas in his examination-in-chief he stated that the house of Indrajeet was near his house and Kare Singh was living separately with his wife. DW-2, thus, could not prove that the house in which the body was kept by him alongwith other villagers on a cot was whether of Indrajeet or Kare Singh. It was an admitted fact of the matter that no information of such an incident/accident was given either by the accused appellants or by the witnesses to the police.

85. During their examinations under Section 161 Cr.P.C., three accused namely Indrajeet, Kare Singh and Premwati did not narrate the incident having been occurred outside their house. They had simply stated that they had not committed any murder and would take defence after consultation with their lawyer. At no point of time, the defence had intimated about the incident having occurred outside the house in the jungle. No-one had shown the place of the incident to police when they reached on the spot on the FIR lodged by the informant. The defence story was not broughtforth during investigation and it was pleaded by them for the first time in the Court during the depositions of the prosecution witnesses.

86. The contention of the learned counsel for the appellant is that the defence had probabilise its story by giving suggestion to the witnesses, in the defence under Section 313 Cr.P.C. and by production of defence witnesses. The burden, if any, laid on the accused appellant had, thus, been discharged. It was argued that the prosecution witnesses had admitted that there was no bathroom inside the house and all occupants including ladies of the house were going to the jungle to defecate. It was, thus, argued that the death had occurred outside the house and it was an accidental death. The report lodged by the brother of the deceased (informant) was based on the false claims. The counsel for the appellant vehemently argued that the burden on the appellants was discharged with the suggestion to witnesses, defence under Section 313 Cr.P.C. and the evidence of the defence witnesses that there was no washroom inside the house and deceased used to go to defecate in the jungle and the incident had occurred in the evening around 7-8.00 PM when she went to defecate. The fact of accidental death was the consistent stand of the defence which was placed at all three stages of the trial beginning from the suggestion to the witnesses, explanation in 313 Cr.P.C. and by production of the defence witness. It was categorically pleaded by the defence witnesses that it was a case of accidental death and false report was lodged when no settlement was arrived between rival parties. The fact that no toilet was in existence in the house was admitted by PW-1 as also the Investigating Officer when they were confronted on the issue.

87. To test this submission of the learned counsel for the appellant raising dispute about the place of occurrence, suffice it to note that it had been established that the three appellants herein were ordinary residents of the same house wherein the deceased was living. It was matrimonial home of the deceased and the dead body was found lying in the Angan (Courtyard) of the said house. It could not be explained by the appellants as to why they had absconded from their house when the incident had occurred outside the house and it was an accident. None of them had given any information to the police about the accident. Even if it is assumed that it was a death occurred outside the house of the appellants, it was their duty to report to the police. None of the appellants in their defence under Section 313 Cr.P.C. had explained the circumstance in which they all fled away from the house wherein the body of the deceased was found lying in the Aangan (Courtyard). Indrajeet Singh, the husband of the deceased did not give any such defence to mitigate the circumstance against him. The answer to question No.'1' of the accused persons in their examination under Section 313 Cr.P.C. amounts to their admission of the death having been occurred inside the house.

88. As regards the explanation offered by the appellant in defence, it may be noted that the statement made in defence by the accused under Section 313 Cr.P.C. can be taken aid of to lend credence to the evidence lead by the prosecution, but only a part of such statement (under Section 313 Cr.P.C.) cannot be made the sole basis of his conviction. It is also settled that statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. (Reference Gama Singh Vs. State of Bihar7 Nishi Kant Jha vs State Of Bihar8)

89. In this case, the exculpatory part of the statement in reply to the last question No.'14' of the accused which is sought to be established by the evidence of the defence witness is found to be unreliable, in as much as, the statement of appellant Indrajeet that his wife was killed outside the house by some miscreants, which is sought to be established with the evidence of defence witnesses (DW-1 & DW-2) was found to be false explanation, in view of the discussion made above.

90. It may noted that DW-1 had very casually narrated the entire incident, which according to him had occurred in the jungle. He though stated that he had reached at the spot on hearing the cries of deceased and then the unknown miscreants had killed her but there is no detail in his testimony as to how the deceased was killed by the miscreants. DW-1 is projected as an eye witness of the occurrence of the incident of murder of the deceased outside the house, in the jungle where the deceased went to defecate. This defence story when tested at the touchstone of probability with the point of view of reasonable man of ordinary prudence is found to be unbelievable. Similarly DW-2 had only stated that the deceased was killed by miscreants and he had also reached at the place of the incident on hearing the cries of the deceased. The manner in which the murder was caused by alleged miscreants had not been narrated either by DW-1 or DW-2.

91. In this circumstance, the explanation offered by the accused Indrajeet for his innocence is proved to be false. Other two accused namely Kare Singh and Premwati pleaded alibi which they could not prove by any positive evidence. It is settled that the onus is on the accused to establish the plea of alibi which had not been discharged by bringing any positive evidence before this Court. The statement of the defence witnesses that accused persons Kare Singh and Premwati were living separately from their son Indrajeet, husband of the deceased was contradicted from the version of the DW-2 itself. Though in chief, DW-2 stated that Indrajeet with his wife was living separately from other two accused Kare Singh and Premwati and the house of Indrajeet was nearby his house and that the information of death of the deceased was given to Indrajeet and the body was taken to his home, but in cross by the prosecution, DW-2 stated that the deceased was brought from the jungle by him and other villagers on a cot and she was kept in the dead state in the Aangan (Courtyard) of Kare. The explanation offered by the accused persons Kare Singh and Premwati, thus, proved to be false from the testimony of their own witness. Even otherwise, there is no positive evidence to establish that these two accused persons were living separately from Indrajeet. The site plan indicates that it was a huge house having many rooms and Aangan (Courtyard), trees, Verandah etc.

92. Coming to the inculpatory part of the deposition of 313 Cr.P.C., we have noted above that three accused persons while answering question No.1 during their examination under Section 313 Cr.P.C. had admitted the place of the death of the deceased being the house situated at Gram Vake Kateliya, P.S. Naujheel, Mathura on 11.07.2007, which is the matrimonial house of the deceased wherein the appellants were ordinarily living and the dead body of the deceased was lying where the informant and other family members had reached on the spot.

Abscondance of the accused from the place of the incident:-

93. There is yet another corroborating circumstance, which lends credence to the prosecution case. The conduct of the accused persons in absconding from the place of occurrence is a very relevant fact as res gestae. It is observed in Mritunjoy Biswas v. Pranab9 that mere abscondence cannot form the fulcrum of a guilty mind but it is a relevant piece of evidence to be considered along with other evidence and its value would always depend on the circumstances of each case as has been laid down in Matru v. State of U.P10. Paragraph '30' of the said decision has been noted therein to state the above legal position.

94. In the instant case, as per the defence theory, three accused persons were not residing in the same house. Appellant Kare Singh and his wife alonwith other children was living in separate house and Indrajeet, husband of the deceased alongwith deceased was living in the house where the dead body was found by the informant and the police. According to the defence witnesses and the defence taken by Indrajeet husband of the deceased, the deceased was killed outside the house in the jungle where she went to defecate by some unknown miscreants. The defence witnesses had reached on the spot of the incident and had seen the occurrence. They brought the dead body to the house of Indrajeet alongwith other villagers. Both the defence witnesses stated that lot of villagers were collected on the spot, information was given to Indrajeet and the dead body was brought inside the house, where it was found. Though it was sought to be submitted by the witnesses that the appellants were living separately but DW-1 stated that he had kept the dead body in the Aangan (Courtyard) of Kare Singh.

95. Be that as it may, atleast from the defence theory, it can be discerned that as per the case of the appellant the death had not occurred inside the house but it was a homicidal death caused by some miscreants wherein wife of Indrajeet was killed. It is not understandable nor believable that in such an event, why would the accused persons had any fear of running away from their house leaving the dead body alone in the open house. The circumstance of abscondance of the accused from the place of the occurrence which was their own house when read with the evidence of the prosecution witnesses in a cumulative manner, the fact of absconding of the accused gains significance.

96. From the careful appreciation of the entire evidence of the case, it becomes evident that the deceased was killed in her matrimonial house where three appellants namely Kare Singh, Indrajeet and Premwati were residing ordinarily. The place of the incident proved to be the bed room of the deceased which was located at the back side of the house. It is proved from the postmortem report that it was a case of throttling. It, is thus, evident that after the incident which had occurred inside the room of the house, wherein the deceased was living with her husband, the body was brought in the Aangan (Courtyard) and the scene of the crime was made up by the appellants in such a manner that it would appear to be the case of hanging. The villagers and other family members initially informed the informant and other family members of the deceased that she had committed suicide by hanging but they did not believe the story and getting suspicious of the circumstance of the absence of the accused persons inside the house and the manner in which the place of the incident was made up, had lodged the first information report that the deceased was killed by throttling. This suspicion in the mind of the informant and his family members was later strengthened with the observations of the police when the room, the place of incident was inspected by them.

97. As it is established in the instant case, that the offence had occurred inside the privacy of the house, in such circumstance, it was extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Court. In Trimukh Maroti Kirkan(supra), it was held by the Apex Court that the law does not enjoin a duty on the prosecution to led evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It has been held therein that an offence like murder if committed in the secrecy inside a house, then the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

98. It is established by the prosecution in the instant case that the offence had been taken place in the secrecy of the house, the appellants have all the opportunity to plan and commit the offence at the time and in circumstance of their choice. The explanation offered by three appellants in their defence under Section 313 Cr.P.C. is found to be false. It is settled that in a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind, that when an incriminating circumstance is put to the accused and the said accused either offer no explanation or offers the explanation which is found to be untrue than the same becomes on additional link in the chain of circumstances to make it complete. False explanation offered by the accused is one of the circumstance which would add in the chain of circumstance in favour of the prosecution. The submission of the learned counsel for the appellant that the burden laid upon the accused persons was of lighter degree is not of any benefit to the appellants, in as much as, explanation offerred by them was false and the evidence in defence produced by the accused persons are found to be unreliable. The appellants and the defence witnesses had concocted a false story to discharge the accused persons from the burden to explain the circumstances in which the murder had occurred inside the house. The submission of the learned counsel for the appellant that the burden laid on the defence had been discharged by the producing cogent evidence is, thus, liable to be turned down.

Conviction under Section 302 IPC of three accused with the aid of Section 34 IPC:-

99. We may note that, in the instant case, though the appellants were charged under Section 304-B, but the trial court had acquitted them for the offence under Section 304-B & 498-A as also under Section 3 of the D.P. Act. There is no appeal against their acquittal for the said offences. Learned counsel for the appellant further argued that the conviction under Section 302 IPC cannot be made as an alternative. The prosecution witnesses had categorically stated that it was a case of dowry death and the deceased was harassed by her in-laws and the husband for the demand of dowry. The said demand was even pressed on the date of the death of the deceased when the informant (PW-1) visited the matrimonial house of the deceased and on the said demand, he went back to his village. The contention is that this story of the prosecution could not be proved by bringing cogent evidence of the demand of dowry and cruelty or harassment of the deceased in connection with the said demand. The result was that the appellants had been acquitted of all the offence under Section 304-B, 498-A and Section 3 of the D.P. Act in relation to the demand of dowry and death in connection thereto. The trial court has, thus, erred in convicting the accused persons in alternative under Section 302 IPC without prior evaluation of their role in the entire occurrence. Even it is established that the death had been caused inside the house, no presumption can be drawn of the participation of three accused persons to hold them guilty of the offence under Section 302 IPC by taking aid of Section 34 IPC. For those who are direct participants in the commission of the offence of death there are provisions incorporated in Section 300, 302 and 304 IPC. It is argued that, in the instant case, the trial court has not evaluated the evidence and while dealing with the charge of dowry death, it had wrongly convicted the accused persons under Section 302 IPC with the aid of Section 34 by merely applying the principle of Section 106 of the Evidence Act as discussed in this judgement of the Apex Court in Trimukh Maruti (supra). It has failed to consider that even if the explanation of the appellants is rejected and the defence of the appellants is not accepted, it cannot be held that the chain of circumstance was so complete to point towards the guilt of three accused persons leaving all reasonable hypothesis of them being innocent.

100. Reference has been made to the decision of Muthu Kutty (supra) to assert that the conceptual difference between Section 304-B IPC and Section 302 IPC was not kept in mind by the trial court while holding the appellants guilty. It was argued that Section 304-B IPC and Section 113-B of the Evidence Act together make it clear that law authorizes a presumption that the husband or any other relative of the husband had caused the death of a woman if she happened to die in circumstance not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. It is argued that in the above decision, the Apex Court has held that the provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives with the clutches of Section 302 IPC if they directly cause death.

101. With the aid of the above observations of the Apex Court in Muthu Kutty (supra) it was argued by the learned counsel for the appellant that the conceptual differences between two provision of IPC i.e. 304-B IPC which raises a presumption of dowry death even against the husband or his relatives, and 302 IPC which is a case of direct participation in the commission of offence of death had not been kept in mind by the trial court. When the ingredients of Section 304-B IPC were not found to be existing, no presumption could have been drawn for participation of all the accused persons in the commission of the crime by the mere circumstances that the death had occurred inside the secrecy of the house. The trial court has misapplied the decision of the Apex Court in Trimukh Maruti (supra) to conveniently convict three accused persons for the offence under Section 302 IPC with the aid of Section 34 IPC.

102. To deal with this submission of the learned counsel for the appellant we are required to evaluate as to whether there exists circumstances in the chain putforth by the prosecution to implicate all three accused persons in the offence under Section 302 IPC with the aid of Section 34 IPC. We may record that the trial court has not deliberated on this issue and simply convicted three accused persons by holding that false explanation offered by them was an additional link in the chain of circumstances, and since the death had occurred inside the house, all three occupants of the house must be held guilty.

103. This reasoning given by the trial court, if accepted, other inhabitants of the house as has come in the evidence namely the grand parents and brothers of the appellant Indrajeet must also be guilty. We find that convenient method of holding all three appellants guilty of the offence under Section 302 with the aid of Section 34 IPC had been adopted by the trial which is an illegal exercise.

104. Now evaluating the evidence of the prosecution, we may note that the prosecution had succeeded in establishing that the murder had been caused inside the house which was the matrimonial home of the deceased wherein the deceased was living with her in-laws, which included her grand parents-in-law, parents-in-law, and younger brothers of her husband. From the site plan and the statements of the prosecution witnesses, the place of occurrence is proved to be the bedroom of the deceased which she was sharing with her husband. The said room was located at the back side of the house and from the statement of PW-1, the distance of the Aangan (Courtyard) where the dead body was found was about 50 feet from the room where the murder had been caused. It was a big house constructed in an area of approximately one Bigha having rooms, Gher, Aangan (Courtyard) and the place to tie Cattles. It has come in the evidence of PW-1, during confrontation by the Court that there were three rooms at the back side of the house and the distance between the rooms at the front and the back side was about 60 feet. The prosecution has not come with the positive evidence that the parents-in-law of the deceased (the appellants Kare Singh and Premwati herein) were living in the rooms located at the back side of the house. On confrontation, the informant had shown ignorance about the rooms of the grand parents-in-law and parents-in-law of the deceased in the house. Suggestion was given to PW-1 that the grand parents in law of the deceased were living at the front portion of the house and parents-in-law (appellants Kare Singh and Premwati herein) were residing at the upper portion of the house, which he refuted but nothing beyond the same had been proved by the prosecution.

105. The medical evidence namely the postmortem report establishes that it was a case of throttling. There were marks of injuries on the face of the deceased which were of nail. Hyoid bone was found broken and as per the doctor, the deceased had died due to asphyxia as a result of throttling. The mother of the deceased who was examined as PW-2 had stated in categorical terms at the end of her deposition that the relationship of his daughter and son in-law were not good since the beginning. On the very first night after marriage, the deceased was threatened by her husband by pointing a Katari, on which she submitted herself to her husband saying that she would obey him in any circumstance. It was also stated by PW-2 that Kare Singh father-in-law of the deceased was saying Sorry to her husband, i.e. father of the deceased with folded hands when the police had arrested him. There is no other mark of any other injuries or struggle on the person of the deceased. It further seemed to us that the death had occurred during the night hours on 11.07.2007. It, thus, appears to us that the husband of the deceased namely Indrajeet had killed his wife by throttling in his bedroom during night hours and when the said fact came to the knowledge of other two accused persons namely parents-in-law, they ran away from the place of the incident. It is also evident from the records that the appellants had made up the scene of the crime to project it as a case of suicide by hanging by putting a chair on the bed and a Saree on the hook, but all the appellants cannot be convicted of the offence under Section 302 IPC by taking aid of Section 34 IPC for their participation in making up the scene of crime. The common intention of the accused persons in committing the murder of the deceased by throttling had not been proved by the prosecution.

106. From the circumstance brought before us, it seems that the husband of the deceased who was ill-treating her wife had killed her by throttling in the bedroom in the night which was located at the backside of the house. When the said fact came to the knowledge of the other family members namely the parents of the husband, in an effort to help their son, they made up the scene of the crime and by narrating the story of the death having been caused as a result of hanging, they ran away from the scene of the incident alonwith the accused Indrajeet, their son. It has come in evidence of PW-2 that father-in-law of the deceased namely Kare Singh himself went to the village Nagaria to intimate Indrapal about the death and Indrapal intimated PW-1 Jaipal and his father that their daughter was killed in Village Kataliya. On getting the said information in the morning at around 05.00-06.00 AM from Indrapal, the informant and other family members of the deceased had reached her matrimonial home.

107. As regards the offence under Section 4 of the Dowry Prohibition Act, suffice it to note that the demand of dowry from the family members of the deceased is proved from the statement of the prosecution witnesses and that the deceased was forced to stay in her Maika for a long time after her marriage on account of the demand of dowry. It was also proved that the informant and his family members were not allowed to meet the deceased and to even talk her on telephone. However, since the prosecution had failed to establish that soon after death, the deceased was subjected to cruelty and harassment in connection with the demand of dowry, the charges under Section 304-B/498-A and Section 34 were not proved. However, the demand of dowry on the part of three appellants namely Indrajeet, appellant Kare Singh and Premwati had been proved by the prosecution. The conviction of the appellants Indrajeet, Kare Singh and Premwati for the offence under Section 4 of the Dowry Prohibition Act is, thus, found justified and is hereby confirmed.

Conclusion:-

108. From the collective reading of oral and medical evidence, we have no hesitation in drawing a conclusion that it was the husband (Indrajeet) who was the perpetrator of the crime. The circumstances enumerated had unerringly point to the guilt of the appellant Indrajeet and was inconsistent with his innocence. However, the conviction of other appellants namely Kare Singh and Premwati the parents-in-law of the deceased for the offence under Section 302 IPC with the aid of Section 34 is not found justified, in as much as, the circumstance on record do not establish their implication in the crime of the murder of their daughter-in-law. It is not possible for us to say that all the circumstance put together would unerringly point to the guilt of these two accused persons leaving all reasonable hypothesis of them being innocent. The conviction of appellants Kare Singh and Premwati for the offence under Section 302 IPC with the aid of Section 34 IPC is, therefore, set aside.

109. The appellant Indrajeet is convicted for the offence under Section 302 IPC for the commission of murder of his wife within the precincts of his house.

110. On the question of sentence, we may record that life imprisonment awarded to the appellant Indrajeet is the minimum sentence under Section 302 IPC.

111. For the conviction of the appellants under Section 4 of the Act' 1961 as affirmed by us, the sentence awarded to the appellants is reduced to the imprisonment for a term of six months simple imprisonment and the fine imposed upon the appellants is enhanced to Rs.10,000/- for each. In case of default in payment of fine, each of the appellants shall undergo an additional three months simple imprisonment. Both the punishments awarded to Indrajeet for the offence under Section 302 IPC and section 4 of the Dowry Prohibition Act' 1961 shall run concurrently. The total amount towards fine deposited by the appellants shall be paid to the parents of the victim.

112. The total period of incarceration of appellants Kare Singh and Premwati till date is not before us. They shall be taken into custody to serve the remaining period of their sentence, if any.

113. The judgement and order dated 30.10.2010 passed by the Additional Sessions Judge, Court No.6, Mathura in Sessions Trial No.548 of 2007 for conviction arising out of Case Crime No. 325 of 2007 under Section 302 IPC read with Section 34 IPC and Section 4 of the Dowry Prohibition Act, Police Station Naujheel, District Mathura is modified to the above extent.

114. Both the appeals are allowed in part, to the above extent.

115. Certify this judgement to the Court below for compliance. The Lower Court record be sent back immediately.

116. The compliance report be submitted through the Registrar General, High Court, Allahabad.

	       (Sadhna Rani (Thakur) ,J.)         (Sunita Agarwal, J.)
 
Order Date:- 15.12.2022/Himanshu

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