Harbans Lal, J.
1. This appeal is directed against the judgment of the Sessions Judge, Gurdaspur, dated October 6, 1976, whereby Kuldip Sham, accused-appellant, was convicted under Section 302, Indian Penal Code, and sentenced to imprisonment for life and a fine of Rs. 1,000/- out of which a sum of Rs. 300/~ was ordered to be paid to the parents of Usha Rani, deceased. Ram Lal, Shanti Devi and Veena, who had also been charged and tried along with the accused under Section 302 read with Section 34, Indian Penal Code, were however, given the benefit of doubt and acquitted.
2. According to the prosecution story, as disclosed at the trial, burnt dead body in a sitting posture of Usha Rani, wife of Kuldip Sham, accused was found in a closet measuring about five feet into three feet on the top floor of the residential house of the accused The said dead body was reclining against the wall of the closet, at the threshold, which was full with unutilised or unusable household articles. In the first instance, the information had been lodged by Ram Lal accused, father-in-law of the deceased, vide statement, Exhibit PL, dated March 28, 1976, at 7.45 A. M. in Police station Pathankot with Rameshwar Kumar Sharma, Inspector of Police, P. W. 13. According to the said report, Usha Rani, deceased, and her husband had slept in the house across the road. In the morning, Kuldip Sham, accused, had gone for a walk as usual at 6.15 A. M. along with Dharam Vir Mahajan. At about 6.45 A. M., Shanti Devi, accused, went to the said house in order to use the latrine which was on the top of the said house. After seeing the closet, she raised hue and cry, attracted by which Ram Lal, accused, and his daughter Veena, accused as well as Mohan Lal, shop-keeper in the neighbourhood went there and witnessed clothes of Usha Rani, deceased, on fire. Ram Lal, accused, poured a bucket of water over her clothes and extinguished the fire. In the meantime, his son Kuldip Sham, accused, also returned from the walk. According to the said statement, it was a case of suicide by fire.
3. After recording this report, Inspector Rameshwar Kumar Sharma, PW, went to the house of Kuldip Sham, accused, and after scrutinising the dead body in the closet, smelt foul play, As a consequence, he got two photographs, Exhibits P. 1 and P. 2, from the right and the left sides of the dead body, prepared. Under his instructions, a wireless message was sent to the parents of the unfortunate victim at Qadian. On the basis of the statement, Exhibit PD, by the father of the deceased, Charan Dass, P.W. 3, first information report, Exhibit PD/1, was registered at 2.10 P. M. for the commission of the offence under Section 302 read with Section 34, Indian Penal Code, against the present appellant, his father, Ram Lal, accused, his mother Shanti Devi and his sister Veena, accused.
4. The prosecution account, according to this report, is that since the time of the marriage between Usha Rani, deceased, and Kuldip Sham, all the four accused had been maltreating her and threatening her life as their demand for more dowry was not' being met. The deceased had been married to Kuldip Sham, accused, on March 6, 1975. About one month after the marriage when Chander Kumar, son of Charan Dass, P. W., went to Pathankot to bring his sister, Usha Rani, deceased, back, she had conveyed him the Information regarding her maltreatment at the hands of her in-laws and her husband. About seven to eight months prior to the occurrence, Kuldip Sham, accused, sent a telegram for the return of Usha Rani on the plea that his father was ill. When Usha Rani accompanied by her younger brother Pawan Kumar, P. W. 11, reached the house of her husband, she was turned out by both Ram Lal and Kuldip Sham, accused. As a consequence, they stayed with one Pritam Chand Puri, P. W. 5. On his intervention and that of his brother Gopal Dass Puri, a compromise was arrived at, but the maltreatment of Usha Rani on account of less dowry was still persisted. Charan Dass, P.W., suspected foul play and levelled allegation of the murder of his daughter by all the four accused.
5. The postmortem on the dead body of Usha Rani was performed by Dr. C. D. Chawla, Medical Officer, .i Civil Hospital, Pathankot, P. W. 1. according to which, there was a partly burnt bluish blouse around the right upper arm, and four plastic bangles reddish in colour around the right fore-arm of the deceased. The scalp had blackening due to burns. The hair on the left half of the scalp were completely burnt and on the right side partly burnt. The face had been blackened beyond recognition as a result of burns. Left arm up to the elbow had been burnt to ashes whereas the left upper arm was burnt up to muscles. The left side of the chest and back had got burns up to the bones involving the part of the lower lobe of the left lung. The loin region of the back was also burnt up to the bones. So far as the right arm right side of the chest, abdomen and both the lungs were concerned, there were blisters on account of burns. Eighth and ninth ribs on the left side had signs of charring. Pleura on the left side of the chest, and the left lung were shrunken and bore signs of blackening, The stomach and the bladder were found empty. The uterus was bulky. In the opinion of the doctor, she had a pregnancy of 16 weeks old. The cause of death was opined to be shock due to burns which were ante-mortem and were sufficient to cause death in the ordinary course of nature. As a result of .the examination of viscera by the Chemical Examiner, no poison was found.
6. All the accused in their statements under Section 313, Code of Criminal Procedure, denied the guilt against them. According to Kuldip Sham, accused, he along with his wife, Usha Rani, deceased, lived in a separate house and the other accused lived separately, in another house on the other side of the road. He had gone on his usual morning walk on March 28, 1976 at 6 A. M. At that time, Usha Rani was alive. When he came back at about 6.45 A. M.. he found a crowd of several persons having collected in front of his house. It was then that he saw the dead body of his wife in a sitting posture in the closet at the top floor of his house.
7. Obviously, there is no eye-witness to the occurrence and the prosecution evidence comprises of only circumstantial evidence. In this situation, the motive and the conduct of the accused - convict are not only relevant but are of paramount importance in order to establish the guilt against him.
8. So far as the motive is concerned, the statement of Charan Dass, P. W., father of Usha Rani, deceased, is quite detailed and expressive. According to the same, after one month of her marriage, when Usha Rani came to her parents' house, she disclosed that she was being maltreated by the accused who were demanding more dowry. On her return to her in-laws, she remained there for about five to six months. When she came back along with her brother, Pawan Kumar, P. W., she again complained of the maltreatment at the hands of the accused and the demand by them Of an amount of Rs. 20.000/- and a television set. After about 15 days, a telegram was received from her husband. Kuldip Sham, accused, asking her to return on the plea that her father-in-law was seriously ill. However, when she went back along with her brother, Pawan Kumar, P. W., she was pushed out of the house and they had to stay with Pritam Chand Puri, Chairman. Improvement Trust, Pathankot, P. W., who had brought about the marriage. -On receiving a telephonic call from him. Charan Dass, P. W., and his cousin brother, Kishan Chand, P. W. 12, went to Pathankot. It was with the good offices of Pritam Chand Puri, P. W., and his brother Gopal Dass. that reconciliation was brought about and the accused gave their consent to allow Usha Rani, deceased to live with them. The version of Charan Dass, P. W., in this regard, is fully corroborated by Kishan Chand and Pawan Kumar, P. Ws., the uncle and brother of the deceased, respectively, as well as Pritam Chand Puri, P. W. According to Pritam Chand Puri, P. W., who is the Chairman of the Improvement Trust, Pathankot, and a respectable and absolutely disinterested person, he had also played part in brining about the marriage between the deceased and Kuldip Sham, accused, and that the compromise had been brought about between them through him. This fact is also admitted by the accused in their statements. However, according to Pritam Chand . Puri, P. W.. during the compromise talks, Kuldip Sham, accused, and his father Ram Lal, had levelled allegation of infidelity against the deceased and had shown a letter alleged to have been written by some other person. According to the witness, this letter was fake one and he had clearly told the accused about the same. According to the accused, they had suspicion on the basis of this letter, but as Pritam Chand Puri. P. W., had assured them that she will behave properly, in future, the matter was hushed up and the deceased was allowed to live with her husband, the accused.
9. According to the deposition of Gian Chand, P. W. 7, who was an old man of 70 years and a disinterested witness, a week prior to the occurrence, Charan Dass, P. W., had disclosed to him that his daughter Usha Rani, deceased, was maltreated by the accused under the grouse of less dowry. On March 26, 1976, that is, two days before the occurrence, at about 7 A. M., he went to the house of Ram Lal, accused, to press him to give a fair treatment to Usha Rani, deceased. According to him, all the four accused were present at that time. As he left the house, Usha Rani accompanied him to the street and disclosed to him that the accused had been pressing for more dowry. The witness assured her that the accused had promised to treat her well. In cross-examination, nothing could be brought out to bring to light any interestedness on his part in favour of the victim or any bias against the accused. According to Mela Ram. P. W. 8 Usha Rani, deceased had brought to his notice, on March 25, 1976, her tale of woe regarding maltreatment at the hands of her in-laws, at the house of one Rakesh at whose house the witness had gone to meet him. The witness took Usha Rani along with him to the house of her husband and impressed upon the accused to give a better treatment to her. In cross-examination, it was categorically stated that he was a social worker since long.
10. The accused, in their statements, denied the allegation regarding maltreatment of Usha Rani or the demand for dowry. A close perusal of the statements of the above referred to prosecution witnesses, however, leave no manner of doubt that since the marriage, Usha Rani, was being harassed and maltreated by her husband and his parents and persistent demand was being made for getting more dowry. As her parents were not in a position to satisfy that demand, she continued to be victimised. The version of Kuldip Sham, in his statement, that at the time of the marriage they had not made any demand regarding dowry and as such, the question for demanding more dowry after the marriage did not arise, cannot be given any credence in view of the deposition of three independent witnesses, viz., Pritam Chand Puri, P. W. 5, Gian Chand, P. W. 7 and Mela Ram, P. .W. 8. In view of their convincing testimony, it has to be held that the attitude of the accused towards Usha Rani, deceassed, was far from cordial, rather it was positively hostile. May be, this attitude was on account of the letter alleged to have been addressed by someone to Usha Rani on account of which the accused had begun suspecting her faithfulness and fidelity as a married woman.
11. As regards the conduct of Kuldip Sham, accused, the same will have to be scrutinised in the background and the context of the answer to the crucial question as to whether Usha Rani, deceased, his wife had died in the closet (the store), as described by the accused, on the top floor of the house where her dead body was found on March 28, 1976, at about 6.40 A. M. and regarding which report was lodged with the police by Ram Lal, accused, the father-in-law of the deceased. According to the report. Exhibit PL. on the basis of a statement by Ram Lal, accused, made to City Inspector, Rameshwar Kumar, Sharma, P.W.. at 7. 45 A. M. on March 28, 1976, Shrimati Shanti Devi accused, mother-in-law of the deceased, went at about 6.45 A.M. on the top of the house in which Kuldip Sham, accused and Usha Rani, deceased, were living to answer the call of nature. She having found Usha Rani under fire in the closet, raised hue and cry and called her husband Ram Lal, accused. The latter on going there sprinkled water out of a bucket on her and extinguished the fire. Kuldip Sham, accused, was stated to have gone out for a morning walk. Mohan Lal, shopkeeper, C. W. 2, also followed Ram Lal, accused. After the entry of the report, Exhibit PL, in the roznamcha City Inspector, Rameshwar Kumar Sharma, P. W., went to the spot and saw the dead body of Usha Rani lying in the closet. As Mohan Lal, C. W., and the City Inspector, Rameshwar Kumar Sharma, P. W., were the first to see the position of the dead body, their statements are quite material to arrive at the correct conclusion. According to the City Inspector, Rameshwar Kumar Sharma, P. W., the dead body of Usha Rani was reclining against the wall, in a small closet, five feet into three feet in area and a person could not , stand erect there. The store was full of unusable and unrequired articles except for the place, where, the- dead body was seen. According to him, no article, in the closet appeared to have been disturbed for quite some time. Near the right knee of the dead body was lying a tin-can on the top of which was a thali full of rice, but the same had not been disturbed at all and not a single rice had fallen on the ground. Under the hip of the dead body was a piece of mattress or quilt, Exhibit' P. 5, which was burnt from all sides. The same was taken into possession, Part of the mattress under the hip had not, however, burnt. Some ash from the burnt material was also lying on the left side of the dead body just below the left arm which was also taken into possession. It was further stated that there were very slight marks of smoke on the wall against which the dead body was reclining. The door of the closet was partly open and the flap just behind the dead body had slight marks of smoke. A small dabbi smelling of kerosene oil was also lying in that closet.
12. According to Mohan Lal, C.W., his shop was near the house of the accused where the dead body was found across the road. Up to 5.45 A. M., he did not hear anything. At about 6.45 A. M. Shantj Devi, accused, went towards the house and after going there, she raised hue and cry from the top of the house on hearing which, both Ram Lal, accused and he himself went there. According to him, thereafter 40 to 50 people collected there. He found the dead body reclining against the wall almost in the sitting position, but there was no fire.
13. Charan Dass and Kishan Chand, P.Ws., father and uncle, respectively of the deceased, reached the house of the accused on getting information through the wireless message sent by the Police. Both of them saw the dead body lying near the closet. According to Charan Dass, P.W., none of the articles lying near the dead body had any sign of burning or smoking. The wooden door of the closet which was near the dead body had also no sign of burning or smoking. The dead body was almost burnt and the cloth which was covering the dead body was not at all burnt and it appeared to have been put just to cover the dead body. Kishan Chand, P.W., also deposed in identical terms. He also stated that the articles lying in the closet had not been used for quite some time as there were layers of dust spread on them. A thali with come rice was also lying there undisturbed There was one burnt piece of mattress which was taken into possession by the Police. There was also one match-box in the thali, but there was no can of kerosene oil. It is significant to note that this statement of fact by the witnesses was not challenged in cross-examination.
14. The City Inspector, Rameshwar Kumar Sharma, P. W., had also arranged to get the dead body in the closet photographed from Gurcharan Singh, Photographer. P.W. 9, and two Photographs, Exhibits P. 1 and P. 2, along with their negatives, are also on the record. These photographs were admitted by all the four accused. From Photographs, Exhibits P. 1 and P. 2, it is quite evident that the dead body was placed just at the threshold of the door which was the entry of the closet. The dead body appears to have occupied the entire breadth of the store. The head and the back of the dead body were raised against the wall in such a position that the body could not fall. It also appeared that the legs could not be stretched beyond the opposite wall. In this closet were also found various household articles including drums etc. From a look at the photographs when perused with the statement of the doctor, which has been reproduced above, it becomes crystal clear that the right side of the dead body except the portion just towards the upper right thigh in contact with the mattress on which the dead body was seated had not been burnt. The blouse on the right side except for a few burnt portions was intact. According to the doctor, the blue colour of the blouse had not been affected. The petticoat or the sari cloth on the left leg seems not to have been burnt. All the tell-tale burn marks were on the left arm, left shoulder, left chest and the left side of the face and head. All the articles lying in the store near the dead body do not seem to be disturbed. At point D in photograph, Exhibit P. 1, some article appears to be in close contact with the left side of the dead body. A basket appears to be lying near the left knee, but none of the articles appears to have been disturbed. Plastic bangles on the right arm also do not appear to have been at all burnt. A close look at the second photograph, Exhibit P. 2, which was taken by the photographer from the back, shows that the left upper arm and the left shoulder are completely burnt mass and below the elbow nothing is observable. Towards the left of point B and the right of point Y there appears to be some portion of either ulna or radius which in the opinion of the doctor was jutting out from the elbow joint in a completely burnt condition-There does not appear to be anything below figure Y. The doctor was exhaustively cross-examined at this point by the trial Court. In reply to one question, it was stated that the left arm up to the elbow was so much burnt that there was no flesh left and the bones were charred to ashes, to reply to another question, it was clarified that 'the burnt bones turned to ashes just like remains left after the cremation.' It was also deposed that only the upper two-thirds portion of the radius and ulna were jutting from the elbow joint and the rest had fallen off. In reply to another question, it was stated that the rest of the portion was missing. However, after the statement had been completed, the doctor, before signing the statement, without the order of the Court and without bringing the same to the notice of the Court, himself added the word 'not' thereby showing 'the rest of the portion was not missing.'
15. A close perusal of the statement of Dr. G. D. Chawla, P. W., leaves strong impact on the mind that it was his clear statement in the first instance that the portion below the elbow joint of the left arm was missing and had been completely burnt to ashes. Subsequently, however, he made a deliberate attempt to wriggle out of it and to make equivocal statement that some bones were jutting out of the elbow joint.
16. According to the trial Court, the burns on the dead body of Usha Rani, deceased, were not anti mortem and that one-third portion of the left arm below the elbow was missing be-for the dead body was put to fire and the same was done in order to conceal the injuries which may have been inflicted on that part before her death. It was also opined that the doctor had not dissected the head and the face from which also correct opinion could be formed if some injuries had been inflicted on the said parts of the body. The doctor, however, categorically stated that the burns on the dead body of Usha Rani were ante-mortem in nature and were sufficient to cause her death in the ordinary course of nature. Though it is not possible to form a categorical opinion from the material on the record if the bums on the dead body were ante-mortem or post-mortem in view of the categorical statement of the doctor, yet from the oral evidence of the witnesses,, who had seen the dead body lying in the closet, as referred to above, the two photographs and the statement of the doctor, no doubt, is left that even if it was a case of death by fire and the consequential burns, the body of Usha Rani had not been subjected to fire in the closet and that the dead body was placed therein only after death. If Usha Rani had caught fire whether accidentally or intentionally to commit suicide, after the body caught fire, she must have writhed with pain and made frantic movements of hands and legs and the natural consequence would be that the articles lying near the dead body must have been disturbed. Besides, the wall, the door and the threshold where the body was seated or was in contact must have also borne the impact of fire and the smoke. At least, the rice lying in the thali could not but show signs of the impact of intensive fire. It is clear from the photograph, Exhibit P. 1. that a cloth is covering the dead body which did not have any sign of fire or even smoke. Indisputably, this cloth had been put on her after she had died. Even according to Mohan Lal, C. W., who had just followed Ram Lal, accused, after Shantj Devi, accused, had raised hue and cry, he did not see any fire or smoke. There is absolutely no evidence on the record to show if any person had seen the fire or the smoke coming out of the closet. Thus, the only conclusion possible is that Usha Rani was already dead whether by fire or otherwise when her dead body was placed in the closet.
17. The next important question is as to whether all the four accused along with Usha Rani, deceased, were living in the house on the top floor of which her dead body was found in the closet or only Kuldip Sham, accused, was living with Usha Rani, deceased. According to the earliest version as embodied in the report, Exhibit PL, which, in fact is the statement of Ram Lal, accused, out of the accused only Kuldip Sham, along with his wife. Usha Rani, was living in the said house and the remaining three accused, namely, the father-in-law, the mother-in-law and the sister-in-law of the deceased, lived in the other house across the road. It was only Shanti Devi, accused, the mother-in-law of the deceased, who went in the morning to answer the call of nature to the house, in question, that she came to know of the tragic incident. All the four accused, id their statements, have also categorically stated that only Kuldip Sham, accused, and Usha Rani, deceased, lived in that house. This is also corroborated by Mohan Lal, C.W.. who was carrying on the shop as a tea-seller on the other side of the house, in question, and used to supply tea in the morning to Ram Lal, accused. According to the learned Counsel for the accused-convict, it is the prosecution case that all the accused along with Usha Rani, deceased, lived together. However, in view of the evidence on record and statements of the accused, it has to be held that only Kuldip Sham, accused, lived with his wife Usha Rani, deceased, separately in the said house.
18. After having arrived at the above conclusions, the conduct of Kuldip Sham, accused, assumes considerable importance as in a case based only on circumstantial evidence, the conduct of the accused is also an important link in the chain of incriminating circumstances to arrive at the correct conclusion. According to the statement of Kuldip Sham, accused, after the close of the prosecution evidence, he used to go for a morning walk every day and on March 28, 1976, had gone for a walk at 6.15 A. M. along with his partner and friend, Dharam Vir Mahajan, C. W. 1. At that time, his wife Usha Rani was quite fit and alive. When he returned at about 6.45 A.M., he found a crowd of people having collected in front of his house. It was then that he came to know that Usha Rani was dead and her dead body was lying in the closet. He further stated that Usha Rani had died by sprinkling kerosene oil on her body and then putting herself on fire after he had left the house for walk in the morning. This defence version stands completely negatived and contradicted by the convincing evidence and the objective circumstances on the record. As discussed above in detail, Usha Rani had not caught fire in the closet, but her dead body had been placed there subsequent to her tragic end. Even Mohan Lal C. W., who had immediately followed Ram Lal, accused, on hearing the cries of Shanti Devi, accused, had not seen any sign of fire or smoke coming out of the closet at any time in the morning. The version of the accused that he had gone for a morning walk with Dharam Vir Mahajan, C. W., was also belied by the deposition of the latter as a Court witness (C. W. 1). According to his deposition, he did not even know Kuldip Sham, accused, and had not gone with him for a morning walk. This conduct of the accused in fabricating a story that he had gone out of the house in the morning and that it was in his absence within a short span of half an hour or so that his wife Usha Rani committed suicide is a strong indication of his guilty mind and a deliberate attempt on his part in order to conceal the commission of offence. If it were Kuldip Sham, accused, and Usha Rani, who had slept in the house on the relevant night, and Usha Rani had for one reason or the other, committed suicide or had died by accident, it was not probable that Kuldip Sham, accused, would concoct such a cock and bull story. The relations between the two being strained and Kuldip Sham being aggrieved against his wife whether on account of the non-fulfilment of his demand for more dowry or because he suspected her fidelity on account of the seizure of the letter addressed to her by some other person, the dead body of Usha Rani found in the closet in suspicious and mysterious manner and the deliberate attempt on the part of the accused to concoct a false story are such incriminating circumstances from which no other conclusion is possible except that it was Kuldip Sham, accused, who was instrumental in committing the murder of his wife by putting her on fire or in any other manner. It has been held In Deonandan Mishra v. State of Bihar : 1955CriLJ1647 , that in case of a murder when there is no direct evidence and the prosecution case is based only on circumstantial evidence, absence of explanation or false explanation by the accused serves as an additional link in the chain of circumstances to connect the accused with the offence. In the present case, as discussed above, the accused, Kuldip Sham, came out with a statement in explanation regarding the cause of death of his wife which has been found to be palpably false.
19. It was contended on behalf of the accused convict, that Kuldip Sham, accused, along with three others had been charged only under Section 302 read with Section 34, Indian Penal Code, jointly for the murder of Usha Rani in furtherance of common intention. The three accused having been acquitted, Kuldip Sham, accused, cannot be convicted and sentenced under Section 302, Indian Penal Code. It is not disputed that the present accused -appellant was not charged under Section 302, Indian Penal Code, but was charged jointly with other accused with the aid of Section 34, Indian Penal Code. However, the same is not such a defect which vitiates the trial against the present appellant. As held in Willie (William) Slaney v. State of Madhya Pradesh : 1956CriLJ291 , where the circumstances were almost identical, the absence of a charge under Section 302, Indian Penal Code, against only the accused when others are acquitted, is not fatal and the defect is only a mere irregularity which is curable and no prejudice can 'be held to have been caused to the accused convict.
20. On merits, it was also urged that when in the first instance the prosecution case was that all the four accused jointly and in furtherance of their common intention had committed the murder of Usha Rani, it will not be safe to convict Kuldip Sham, accused, alone when there was no direct evidence. It was stressed that even if Usha Rani had been murdered not in the closet where her dead body was found, but some time during the night in the house, in the absence of proof as to who out of the four accused had committed the murder, the present appellant cannot be convicted. Reliance in this behalf was placed on Sawal Das v. State of Bihar : 1974CriLJ664 . In the said case, however, the conclusion was reached that the maid-servant whose evidence was essential and whose statement had also been recorded under Section 164, Code of Criminal Procedure, had not been produced and in the absence of the same, the prosecution evidence was not cogent enough to bring home the guilt to the accused. In the present case, however, the circumstances are entirely different and the circumstantial evidence including the conduct of the accused in putting forth a false explanation is so compelling in its effect that no other conclusion which may be consistent with the innocence of the accused is possible.
21. In view of the aforesaid discussion, the conviction and sentence of the accused-appellant by the learned Sessions Judge is hereby affirmed and the appeal is dismissed as being without merit.
S.S. Sidhu, J.
22. I agree.