Rajasthan High Court - Jaipur
Sadhuram And Anr. vs State Of Rajasthan on 31 July, 2001
Equivalent citations: 2001(3)WLC633, 2002(1)WLN77
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Madan, J.
1. By way of this appeal, the judgment of the Additional Sessions Judge Neem Ka Thana (Sikar) convicting & sentencing Jagdish (A1) & Sadhuram (A2) appellants for following offences has been assailed-
Sadhuram (A2)
Under Section 498A IPC - Three years' R1 with a fine of Rs. 250A (in
default, further 3 months's R1)
Under Section 302 IPC - Life imprisonment with a fine of Rs. 2000/-
(in default, further two years' SI)
Jagdish (A1)
Under Section 201 IPC - 3 years' R1 with a fine of Rs. 500/- (in
default, further 6 months' SI)
2. Facts in nutshell are that on the basis of Parcha Bayan (ExP4) of Malaram (Pw3) recorded by Gokul Singh (PW13) (Sub Inspector) on 22.11.96, FIR No. 372/96 (ExP10) was registered at PS Neemka Thana alleging therein that in midnight of 22.11.96 at 1 A.M. Jagdish (A1) came to the house of Malaram requesting to accompany him as his son Sadhuram (A2)'s wife Rukma was not opening the door so he accompanied Jagdish to his brother Narain's house from where Narain also joined them and Mohan was also called. Thereupon all gathered at the house of Jagdish (A1) where Narain knocked the door asking Rukma to open it but the door was not opened then Sadhuram (A2) climbed over roof of hutment and by removing roof straws, had entered into hut and after unbolting the door in a lantern light found wife of Sadhuram & his two children hanging with a plastic rope in a dead position, so their bodies were got down and whereupon Jagdish (Al), Narain and Sadhuram (A2) asked him (Malaram) to stay while for a 5 minutes in order to consult family members about mishap at Mohan's place meanwhile Jagdish's wife cam there but she did not say not she wept. After half an hour Jagdish (Al) & Sadhuram (A2) came back and asked him (Malaram) not to disclose this mishap to anybody, for which he was sworn to Goddess of Ganga. It has also been alleged by Malaram in Parcha Bayan (ExP4) that at that lime Sadhuram had kerosene tin in his hand and poured kerosene over Rukma & Munni and then both of them reiterated to swear in the name of Good not to disclose or whisper about this mishap in order to save them; thereafter Malaram went to him home but at 2O'clock in the midnight he heard of commotion and hullabaloo in the locality so he came out of his home and found villagers gathering outside huts of Jagdish (A1), which were being burnt, malaram then alleged that Sadhuram (A2) had beaten his wife Rukma a day before the incident and he was habitual to beat her off and on and in the last night Rukma was hanged to death and then with common intention on the part of Sadhuram (A2), his father Jagdish (A1), his uncles narain & Mohan, they set ablaze Rukma & her daughter causing burn to their own huts also. Malaram further alleged that all the family members used to harass and humiliate Rukma and they had set corpses of Rukma & Munni ablaze with intent to destroy the proof and then lodged a false report about having caught the fire to his hut, whereas the fire was obliquely made.
3. It is pertinent to mention here that at 4A.M. on 22.11.96 a report (ExP9) was lodged by Jagdish (Al) intimating the police that in the night Rukma (wife) and Munni daughter aged 8 months of his son Sadhuram (A2) while they were sleeping sudden fire caught their house setting ablaze both of them. This report was sent to the SDM Neemka Thana with a view to proceed Under Section 176 Cr.P.C.
4. Upon aforesaid Parcha Bayan (ExP4) crime was registered for offences Under Section 14A, 306, 201, 436, IPC, for murders of Rukma (wife) and Munni (Daughter) accused Sadhuram, against not only the accused appellants but also two others namely narain & Mohan. Inquest report (ExP5) of both the dead bodies were prepared during proceedings Under Section 176 Cr.P.C. Site Plan (ExP7) was prepared. Autopsy was got conducted on the persons of the deceased by the medical board consisting of Dr. SC Sharma (PW 11) Dr. P.K. Garg, & Dr. S.K. Meena. The Board gave autopsy reports (ExP14 & 15), according to which the cause of death of Munni & Rukma was assigned as suffocation (asphyxia) due to antemortem burns. In autopsy report of Munni (ExP14) her external appearance was staled as under-Soft tissue is burnt on the head and all over the limbs, viscera burnt, protruded out skull burnt, brain matter partially protruded out and burnt. The chest muscles burnt. The thorax cage was partially burnt. The neck muscles were also burnt partially. No putrefaction present. Eyes cannot be examined because of burns. In remaining muscles rigor mortis was present.
5. Membranes, walls, ribs & cartilages, peritoenum, small & large intestines and their contents were partially burnt and congested. Pleurae, pericardium were only congested. Right & left lungs liver, spleen & kidneys were shrunken and congested. Stomach & bladder were empty and congested. In larynx & trachae besides mouth pharynx & oesophagus, there was sooty carbon particles present. Mucons membrane was congested. In column of organs generation: external and internal, it has been stated as healthy (internal but with extreme parts burns. Right valve of heat was full of blood while lower valve was empty.)
6. In autopsy external appearance of Rukma was found as under:-
"Both upper limbs, right lower limb, left thigh are burnt to carbon, left leg is absent. Left ankle joint with left foot is separately present and burnt to carbon. The skull and face burnt and brain matter is exposed and partially burnt. The neck and trunk skin is burnt. Neck muscles are partially burnt. Chest muscles are partially burnt with ribs. The abdominal viscere intestines are exposed and partially burnt. The remainings muscles are in phase of fully developed Rigor mortis. No putrefaction. Marks of ligature on neck dissection-Nil, Condition of pupils cannot be examined.
Liver, spleen, Kidneys, Right & left lungs were shrunken and congested. Ribs & Cartilages. Membranes, Peritoneum, small & large intestines with their contents were partially burnt and congested. Pleurae, Pericardium. Empty bladder & stomach with its contents were congested. External organs generation was burnt but internal healthy with large vessel. In larynx & Trachae, mouth pharynx and oesophagus sooty carbon particles were present. Mucus membrane congested.
7. During investigation, Buglaram brother of Rukma also addressed complaint dated 23.11.96 (Ex.P17) to the DySP Circle Neemka Thana making allegations of maltreatment and humiliation by Sadhuram (A2) with Rukma after one year of her marriage and further slating therein that on 22.11.96 at 8 A.M. Narainram, Mohan came to his house (Bugla's) in a jeep and intimated that Rukma and her daughter had died due to fire to the hut and therefore, he alongwith Girdhari etc. reached the spot when it was given out by Malaram Gujar, Phoolch and etc. that Sadhuram (A2) had after having killed Rukma & her daughter had put them into fire by pouring kerosene oil.
8. After usual investigation, challan was filed by the police against accused appellants and Narain for offences Under Section 498A, 302, 201, & 436 1PC, in the court of ACJM Neemka Thana and then the case was committed to the court of Sessions. The learned trial court charged aforenamed accused who denied the charges and claimed trial. During trial, as many as four witnesses were examined by the prosecution. The accused were also examined Under Section 313 Cr.P.C. In defence all accused except Sadhuram refused to produce defence evidence and Chhitar (DW1) was produced in defence besides exhibiting two documents viz. police statements of Malaram (ExD1 & D2). After hearing both the parties and considering the evidence on record, the learned trial Court by its judgment dated 20.0.97 acquitted Narain (Accused) of the offences charged, Jagdish (A1) of the offences Under Section 498A, 302, 436, IPC, and Sadhuram (A2) Under Section 498A & 302 IPC and sentenced each of them as indicated in first para of this judgment. Hence this appeal.
9. Shri Samunder Singh learned counsel for the appellants contended that the impugned conviction against each of the appellants is totally based on circumstantial evidence but while considering such an evidence the learned trial Court has failed to appreciate in a right perspective in the light of cardinal principles of criminal jurisprudence because the circumstances brought on record by the prosecution in its evidence are not sufficient to hold the appellants guilty for offences either Under Section 302 & 498A IPC or 201 IPC, inasmuch as one the trial court after appreciating the circumstantial evidence of the prosecution had acquitted all the accused of the offence Under Section 436 & 436/201 IPC, therefore, conviction Under Section 201 IPC cannot be based on such circumstances against single accused jagdish for lodging a wrong report which is a different matter being subject of Section 211 IPC.
10. Shri Samunder Singh then urged that there is no evidence against Sadhuram (A2) to have burnt his wife Rukma and daughter Munni and that being so, he has been acquitted of the offence Under Section 436, IPC, inasmuch as from the evidence of star witness Malaram, since in the midnight the doors were not opened by Rukma (deceased) he was called upon by jagdish (A1) thereby he reached the place of incident and found the doors bolted from inside, so the accused after raising roof straws entered into the hut and then opened the door but found Rukma and Munni (Deceased) hanging with a plastic cord at 2 ft. height from the ground and when brought down both of them were found dead thereafter the accused are alleged to have poured kerosene by setting them ablaze, but the trial court despite such a prosecution evidence on record acquitted all the accused for offences Under Section 436 & 436/201, IPC hence such an evidence cannot be acted upon to convict the appellants for other offence either Under Section 302 or 201 or 498A IPC.
11. Next contention urged on behalf of the appellants is that Malaram star witness of the prosecution has given out four statements - first in the inquest, secondly at the spot, thirdly during proceedings Under Section 176 Cr.PC before the SDM & frothily during investigation Under Section 161 Cr.PC, but there are having different stories and even otherwise from his evidence both the deceased were found handing in the hut so they were got down the ground from hanging when they were found dead, at the worst, cause of death was suicide by handing so also strangulating her daughter aged 8 months at the instance of deceased Rukma and in this view of situation, the story of having burnt at her instance is not rules out, because of circumstances of Sadhuram having humiliated his wife, but there is no question of commission of murder by Sadhuram (A2) for being convicted Under Section 302 IPC, inasmuch as Rukma due to anger had committed suicide so Sadhuram (A2) could not be held liable for offence Under Section 498A IPC.
12. On the other hand, the learned Public Prosecutor supported the findings recorded by the trial Court for convicting the appellants, ad further contended that the conviction is based on well appreciation of the prosecution evidence warranting no interference because chain of circumstances is unbroken, complete and consisient with the guilt of the two appellants.
13. Having considered rival contentions and perused the record we find that all the circumstances pointed out by the defence in this appeal have been considered in detail and properly appreciated inn the light of the prosecution evidence on record by the trial Court. A careful look at the medical evidence consisting of two autopsy reports of the deceased and the statement recorded of the doctor who was one of the members of the medical board which conducted autopsy on the persons of the deceased, makes it explicit clear that the deaths could not have been suicidal and was nothing but homicidal. Dr. S.C. Sharma (PW11) the post moriem examiner proving autopsy reports (ExP14 & P15), categorically deposed that in his opinion so also of two other members of the medical Board, the cause of deaths of the deceased was suffocation (asphyxia) due to burns which were sufficient to cause death in the ordinary course of nature and those burns were ante mortem in nature. In cross examination the doctor (PW 11) admitted that both the corpses were burnt completely and that the wounds were not appearing because in larynx, trachea and pharynx so also oesophagus there were sooty and carbon particles and on the basis of such appearance it could be said that the corpses were put to fire in live condition. No question was put to the doctor (PW11) by the defence so as to lead an inference that the deaths were suicidal. Nothing could be elicited in the cross examination to discredit his aforesaid opinion about homicidal death. The trial Court has accepted his evidence and come of the conclusion that the case falls Under Section 302 IPC to which we find no justification to take a different view.
14. It is to be seen that the trial courts used to make out contradictions from the previous statement of a witness for confronting him during cross examination. Mere inconsistency in evidence is not sufficient to impair the credit of the witness. Section 155 of the Evidence Act provides scope for impeaching the credit of a witness b proof of an inconsistent former statement, whereas Section 155 itself denotes that all inconsistent statements were not sufficient to impeach the credit of a witness. Even a former statement seemingly inconsistent with the evidence need not be sufficient to amount to contradiction obviously because only such inconsistent statement which is liable to be "contradicted" would affect the credit of a witness. That being so, Section 145 of the Evidence Act enables the cross examiner to use any former statement of the witness but it cautions that if it is intended to "contradict" the witness, the cross examiner is enjoined to comply with the formality prescribed therein, Inasmuch as Section 162 Cr.P.C. also permits the cross examiner to use the previous statement of a witness (recorded Under Section 161 Cr.P.C.) for the only limited purpose i.e. to 'contradict' the witness. Hence it is settled law that to contradict a witness therefore must be to discredit the particular version of the witness. Unless former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness. There are bound lo be some discrepancies between the narrations of different witnesses when they speak in details, therefore, a serious view being adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. Thus viewed, unless the contradiction are of a material dimension, the same should not be used to jettison the evidence in its entirety. Even corroboration of evidence with mathematical niceties cannot be expected in criminal cases and therefore, trivial discrepancies ought not to obliterate an otherwise acceptable evidence. (See Rammi v. State of MP(1); Leelaram v. State of Haryana (2). The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses and the evidence is to be considered from the point of view of trustworthiness and in case such an element is satisfied it ought to inspire confidence in the mind of the court to accept the stated evidence.
15. In the instant case, in fact the defence counsel used all those statements recorded either Under Section 161 or during proceedings Under Section 176 Cr.P.C. to ferret out some of either omissions or exaggeration made therein for confronting or for contradicting sole witness Malaram (PW3). Once Section 161(2) Cr.PC. requires a person making statements to answer truly all questions relating to such case put to him by such officer. It therefore depends on the question put by the police officer. Truly, a certain version may be used Under Section 162 to contradict such witness but in the manner provided by Section 145 of the Evidence Act.
16. It is trite as enunciated in Tehsildar Singh v. State of UP (3), "omission, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness box." Though explanation to Section 162 Provides that an omission to state a fact in the statement may amount to a contradiction but it makes explicit that the omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. A consultant reading of Section 161(2) with explanation to Section 162 Cr.P.C. makes it clear that an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witnesses by the police officer during investigation.
17. We may also reiterate that statements contained in an inquest report to the extent they related to what the investigation officer saw and found are admissible but any statement made therein on the basis of what he (IO) heard from others, would be hit be section 162 Cr.P.C. obviously because sole purpose of preparing an inquest report Under Section 174(1) Cr.P.C. is to investigate into and draw up a report of apparent cause of death, describing such wounds as found on the person of the deceased and stating in what manner or by what weapon or instrument, if any, such wounds appear to have been inflicted. However, for holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. As expounded in Pedda Narain v. State of AP (4), the object of proceedings Under Section 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and if so, what was it apparent cause and the question as to the details how the deceased was assaulted and in what circumstance is foreign to the ambit and scope of such proceedings and, therefore, the omissions in the inquest report were not sufficient to put the prosecution case out of court.
18. Similarly it is cardinal principle of criminal jurisprudence that a statement of a witness Under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only for 'contradicting' or 'corroborating' him. Hence any former statement made by a witness at or about the time when the incident look place becomes usable as of corroborative value Under Section 157 of the Evidence Act; and whether the statement was made at or about the time of the incident can be decided on the facts of each case; and if there was no appreciable delay the statement made by the witness can be used for corroborating his own testimony as in Section 157 of the Evidence Act. If the delay was involved in making such statement its utility at best would be restricted to confronting the maker for contradicting him and such a statement would have no corroborative value. And, as propounded in Rameshwar v. State of Rajasthan (5) followed in Nathuni Yadav v. State of Bihar (6), there is not hard and fact rule about the 'at or about' condition is Section 157 of the Evidence act obviously because the main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concocting. Even in State of T.N. v. Suresh (7), the Apex Court held that the mere fact that there was an intervening period of a few days in a given case may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Evidence Act. In real sense, Section 157 of the Evidence Act envisages two categories of statements of witnesses which can be used for corroboralion - firstly a statement made by a witness to any person 'at or about the lime when the fact took place', and secondly a statement made by him to any authority legally bound to investigate the fact. Thus in case the statement is made to an authority to competent to investigate a fact such statement gains admissibility no matter that it was made, long after the incident and if the statement is made to a non authority it loses its probative value due to lapse of time.
19. We must hasten to and that the credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court, as delineated in Section 155(3) of the Evidence Act by keeping in view while reading Section 145 which consists of two limbs. Under its first limb a witness may be cross examined as to his previous statement without such writing being shown to him. But second limb provided that if it is intended to contradict him by the recitals, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In other words, the first limp does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross examine the witness with reference to his previous statement. And if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in court on that score would not be vitiated until the cross examiner proceeds to comply with the procedure prescribed in the second limb of Section 145.
20. Let us have a look at the oral evidence of Malaram (PW 3). He in his examination in chief deposed inter-alia that on the fateful night at about 1 O'clock, Jagdish came to his house and told him to accompany for his house (Jagdish) where doors were being bolted from inside, so he went to hirns house (Jagdish) by also calling Narain who knocked down the door but it was not opened so, Sadhuram by removing roof straws had entered into the hut wherein Rukma (W/o) & Mutmi (D/o) Sadhuram were found hanging thereby they astounded and asked him (PW3) not to disclose it to anybody for which he was also made to swear by Goddess of Ganga; that he had seen a tin of kerosene in the hand of Sadhuram; thereafter he went back to him house but at about half past two hours in the night, he heard of hullabaloo as to the fire at the house of Jagdish and after extinguishing the fire, he went back to his well and next day the police was seen at the scene of occurrence and whatever seen by him was given out to the police that in that fire Rukma and her daughter had been burnt. He further deposed that at A to B of this Parcha Bayan (Ex.P.4) he had signed. In cross examination he admitted his signature at A to B of his statement (Ex.D.1) but stated that once he gave statement to the Dy.S.P. and second lime he had also give statement to another police official. He denied to have given out (which is marked as C to D of Ex.D. 1) as to his having gone to the field. He stressed that though he had given out to the police but he did not know as to why the police has not recorded his version about arrival of Jagdish and removal of roof straws of the hut so also as to his having seen kerosene tin in the hand of Sadhuram. He pleaded ignorance as to any animosity in between Jagdish and Shankar or with him, so also as to Sadhuram's attending marriage functions at the house of Bhagwanram. However, during cross examination Malaram (PW3) admitted that Rukma was burnt in the house where he was living and cooking her food but he pleaded ignorance a to the fire having been as a result of oil lamp. He also denied to the suggestion as to Jagdish having not gone or called him to accompany.
21. Nandaram Chaudhary (PW14) DySP & investigating officer proved that report (ExP17) was presented to him by Buglaram & Girdhari (brother & father of the deceased Rukma); he had prepared site plan (Ex.P7); Sadhuram (A2) & Jagdish (A1) were arrested by him vide memoes (ExP3 & P2) and further that inquest memo was prepared by the SDM during proceedings Under Section 176 Cr.P.C. He also proved that statement of Malaram besides others were recorded according to their versions given out to him. Though attention of Nandaram (PW14) (10) was called during cross examination as to portions marked A to 8 (viz. when dead bodies were got down they were straight and not folding by hands and legs) and C to D (Rukma & her 8 month's daughter were hanging and had already dead being hanged to death) of statement (ExD2) of Malaram, but curiously enough such parts were not at all drawn attention to Malaram for being used so as to contradict him by his earlier version. However, Nandaram (PW14) (IO) during cross examination while called to his attention to those parts of statement of Malaram specifically stated that those portions were got written because the witness (Malaram) had given out such versions and disclosed them before him when his statement (ExD2) was being recorded Under Section 161 Cr.P.C. During cross-Examination nandaram (PW14) Cr.P.C. During cross-examination nandaram (PW14) (IO) stated that during investigation being conducted by him he found that deaths of the deceased had not taken place before the fire but both the deceased were burnt to death and that such conclusion arrived at by him was based on the basis of material and proof of circumstances collected during interrogation made by him investigation of the case. No other versions or parts of statement either of Malaram (ExD2) or other witnesses whose statements were recorded Under Section 161 Cr.P.C. by the investigating officer (PW14) were called by drawing attention either of witness concerned or even the investigation officer (PW14) for the purposes of contradicting the witness, himself. Having carefully perused the statement of Nandaram (PW14) (IO) or even Gokul Singh (SI) (PW13) who had recorded Parcha Bayan (ExP4) of Malaram (PW3) on the basis of which FIR and crime was registered, we found that either Nandaram (PW14) (IO) or Gokul Singh (SI) (PW13) was never asked whether they had put questions during interrogation or recording of statements Under Section 161 Cr.P.C. of either of the prosecution witnesses including Malaram (PW3) asking for their versions alleged to have been either omitted in their police statements or recorded Under Section 164 or Under Section 176 Cr.P.C. but have been given out in court statement or during cross examination for the purposes of contradicting the witness himself to any part allegedly having inconsistency with his stand before the court, if any.
22. Gokul Singh (PW 13) in examination in chief deposed that Parcha Bayan (Ex.P4) of Malaram (PW3) bears his signature at C to D while Malaram's at A to B, which was got written and recorded with word to word as given out by Malaram and nothing was decreased or increased in it and thereafter Ex.P4 was sent to the police station through Sachin Sharma (constable) for lodging FIR and registering the crime. During cross examination Gokul (PW13) stated that he interrogated Malaram by asking questions and recorded his versions as given out by Malaram in his Parcha Bayan, which was got written by Sachin (LC) as directed by him.
23. As analysed above, ExD1 is statement of Malaram (PW 3) having been recorded during inquiry Under Section 174 Cr.P.C. on 22.11.1996. No attention of Malaram (PW3) was called to those parts of his statement (ExD1) (except A to B marked part as to Malaram being present at his filed on the dreadful night of 21.11.1996) which was to be used for the purpose of contradicting him.
24. But this part C to D of statement (Ex.D1) was denied by Malaram during cross examination before the court, to have given out t the police inasmuch as no attention of IO was called by the defence during his cross examination as to whether such a question was put to Malaram to give out such version C to D. Even Parcha Bayan (ExP4) of Malaram (PW 3) was also recorded during inquiry Under Section 176 Cr.P.C. No attention of Malaram (PW3) was ever called by the defence during his cross examination in Court as to any of those parts of his Parcha Bayan (ExP4) recorded Under Section 176 Cr.P.C. for the purposes of contradicting him, and he was only cross examined with reference to hi previous statement but not to its any part allegedly inconsistent to his evidence in Court, this credit of Malaram (PW 3) could not have been impeached by proof of any statement (ExP4 or ExD1 or ExD2) as delineated in Section 155(3) of the Evidence Act rather the defence counsel/cross examiner failed to comply with the procedure prescribed in the second limb of Section 145 of the Evidence act and, therefore, testimony of malaram in Court on that score cannot be held to be vitiated, as pleaded by the defence counsel before this Court.
25. Hence in our considered view, the alleged omissions first of all have occurred as they were not asked by the investigating officer to these witnesses, and secondly exaggerations in the nature of omissions being not significant inasmuch as by necessary implication also being not a part of the statement, cannot be used to contradict the statement in the witness box and that being so, whatever the portions of the prosecution witnesses used by the defence counsel to ferret out some of contradictions of omissions or exaggerations being not on material particulars and significant, cannot be made a ground to reject the evidence of Malaram (PW3) and further those wee not contradictions in the particular context. On an overall conspectus by analysis of the statement of Malaram (PW 3), his statement Under Section 161 Cr.P.C. so also recorded during proceeding Under Section 176 Cr.P.C., we come to the conclusion that there are no material improvements muchless contradictions in the deposition made by them before the trial Court. The so called omissions or exaggerations are in fact the details of the narrations extracted by the Public Prosecutor and the defence counsel in the course or their examination-in-chief and cross examination.
26. It is pertinent to mention that as per Section 176 Cr.P.C. the investigating officer entertaining reasonable suspicion as to the cause of death of deceased Rukma & Munni, had intimated the Executive Magistrate as required Under Section 174 Cr.P.C. and therefore the SDM held on inquiry against cause of death and while holding such inquiry had also recorded the evidence of witnesses including Malaram (PW 3), which statement of PW 3 has been exhibited as ExD1. In fact the SDM was required to hold the inquest and since the investigation had entertained suspicion about the cause of death of the deceased and in that regard he was holding an inquiry. Though we find no inconsistency in ExD1 recorded during proceeding Under Section 176 Cr.P.C. inasmuch as version of malaram (PW 3) in ExD1 as to his having come from the field to the spot (as ferret out by the defence), being not significant and material.in our view, cannot be the sole basis for discarding the evidence of Malaram (PW 3) in toto. Our view is fortified from the decision in Asokaran v. State (8).
27. As regards the conviction for offence punishable Under Section 201 IPC it is not necessary that the offender himself of somebody else should have been found guilty of the main offence but nonetheless it is imperative that the prosecution should have established two premises; first is that an offence has been committed and the second is that the accused knew about it or he had reasons to believe the commission of that offence.
28. We have analysed the evidence of prosecution including Malaram (PW3) and the corroborative evidence noticed by the trial court and find no substance in the submissions of the learned counsel for the appellants. The statement of Malaram (PW 3) is vivid in explanation and inspires full confidence of the court to pass the conviction on the appellants for the offences. The corroborative evidence to the aforesaid statement leave no doubt in the mind of the court regarding involvement of the appellants in the commission of the crime for which they have been convicted and sentenced.
29. Formidable incriminating circumstances against the appellants, as far as we could see, are that (1) on the dreadful night Jagdish (A1) came to the house of Malaram (PW3) asking to accompany for this house (Jagdish's); (2) whereafter Malaram (PW3) accompanied with Jagdish to his house where door was found having been bolted from inside and at the time narain (acquitted accused) was also called and Narain knocked down the door but was not opened so, Sadhuram by removing roof straws, had entered into the hut; (3) in the hut Rukma (W/o) & Munni (d/o) Sadhuram (A2) were found handing; (4) Malaram had seen a tin of kerosene in the hand of Sadhuram (A2); therefore he want back to his house but at about half past two hours in the night he (PW 3) heard commotion as to having caught the fire to the house of Jagdish (A1) resulting in setting Rukma & Munni ablaze. The opinion of the doctor conducting autopsy on the persons of the deceased in reports (ExP14 & P15) indicates that both the victims died of asphyxia (suffocation) due to ante mortem burns and several findings indicated in the autopsy reports undoubtedly support the conclusion about the death on account of asphyxia. The accused and the victims were admittedly residing in the hut situated in one campus but surprisingly enough both the accused left both the victims for being burnt in the fire caught to the hut that too of the deceased and not other family members including the accused appellants. There is nothing on record to suggest or even surmise a plausible reason of her own on that dreadful night for the victim to commit suicide either by strangulating or setting ablaze herself with daughter. The theory of suicide suggested to save the appellants seems to be more a matter of invention based on imagination that even remote possibility warranted or could reasonably be justified on the proved facts. Rather the incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellants and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellants. Even at the time of questioning Under Section 313 Cr.P.C. the appellants instead of making atleast an attempt to explain or clarify the incriminating circumstances inculpating them and connecting them with the crime by their adamant altitude of total denial of everything when those circumstances were brought to their notice by the Court not only lost the opportunity but stood self condemned. Such incriminating links of facts could if at all have been only explained by the appellants and by nobody else, they being personally and exclusively within their knowledge. Having the appellants failed to offer no explanation then the same become an additional link in the chain of circumstances to make it complete and then the court is left with no hesitation except to come to the conclusion that it was the accused who was the perpetrator of the crime. In the present case, the missing link to connect the accused appellants we find provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which in our view with sufficient and reasonable certainly on the facts proved. For all these reasons slated above we have no hesitation to agree with the findings of the trial Court holding the appellants guilty of offences for which they have been convicted & sentenced.
30. Resultantly, this appeal fails and is hereby dismissed upholding the impugned judgment of conviction & sentence passed against each of the appellanls for the offences Under Section 498A, 302, & 201 IPC. Jagdish (A1) is on bail; his bail bonds are cancelled. He would be taken into custody to serve out the remainder of his sentence. Sadhuram (A2) is in jail; he be detained to serve out the remainder of his sentence.