K.S. Tiwana, J.
1. Smt. Pushpa, daughter of Bahadur Chand, resident of village Kalanaur was married to Ashok Kumar appellant about 3 1/2 years before her death. After some time of the marriage, Ashok Kumar and his parents started making demands for more dowry from Pushpa deceased. They were constantly nagging her to bring more money from her parents for investment in the business of her husband. A demand for cash and television was also made. 1 1/2 months before the occurrence, Smt. Pushpa was at her parents' house at Kalanaur. Ashok Kumar appellant had gone there to take her to Hassangarh. At that time he had promised to Bahadur Chand not to harass Smt. Pushpa. He promised to treat her well. Bahadur Chand P. W. 13 and his son Chaudhary Lal PW 1 were staying at Behrampur in Madhya Pradesh, where they were doing business of selling cloth as hawkers.
2. The case of the prosecution is that Smt. Pushpa died on 5th Jan., 1983 at Hassangarh, District Rohtak, in the house of her husband. Jiwan Dass father of Ashok Kumar was present at his shop on that day when the young daughter of Jiwan Dass informed him about the death of Smt. Pushpa. Prem Raj PW 12, who runs a Halwai shop in the vicinity of the shop of Jiwan Dass, heard that information when it was being conveyed to Jiwan Dass. Jiwan Dass rushed to his house. Prem Raj also followed him. Prem Raj found the door of the house of the accused chained from inside. Many people had collected there. By scaling over the wall of the neighbour's house, he saw Smt. Pushpa lying dead in the compound covered with a cloth. She had died of burns. Jumping into the house of the accused, he opened the door. Pushpa was later cremated.
3. A letter was written by the father of the appellant in the name of Bahadur Chand at his address at Kalanaur informing him about the death of Pushpa. It was intimated that ashes of Pushpa were to be collected on 8th Jan., 1983. On receipt of this letter, the mother of Pushpa and other ladies started wailing and crying. This attracted Kala Ram PW 2. On reading this letter, Kala Ram sent a telegram to Bahadur Chand at Behrampur in Madhya Pradesh. He accompanied by Sham Dass, Narsing Dass and three females went to Hassangarh for condolence and to join in the collection of the ashes of the deceased. Going there they found that the ashes had been collected on 7th Jan., 1983. They also found the ladies of the house of the accused sitting on cots, which was not a usual custom in that community on such occasions. It is further stated by the witnesses that the female relatives of Pushpa, who had gone for condolence from Kalanaur, were roughly treated by the inmates-of the house of the accused and were not permitted to enter the house. At that time Jiwan Dass accused made a confession to Kala Ram PW stating that because of a quarrel in the house he and his co-accused gave a beating to Pushpa, who died as a result of violence. Her body was then burnt in the house with Kerosene oil. Her dead body was then taken to cremation ground and cremated there.
4. On receipt of the telegram, Bahadur Chand PW sent his son Chaudhary Lal to Kalanaur. He could not come as he was not in a postition to move because of fracture of his leg. Chaudhary Ram PW on reaching Kalanaur learnt about the details from the witnesses. He then made a complaint before the police on 12th Jan., 1983, on the basis of which the case was registered.
5. Ashok Kumar accused was arrested on 22nd Jan., 1983. On interrogation by Sub-Inspector PW 18, Ashok Kumar made a disclosure statement that he had kept the burnt pieces of bones and some ash of Pushpa deceased by the side of a watercourse and could get the same recovered. He led to the place of concealment and got recovered the bones, a gold ear-ring and ash. These were taken into possession by memo. Exhibit P. G.
6. After investigation the appellant, his father Jiwan Dass, his mother Indero, his sisters Phulan and Usha Were chalaned. After commitment of the case to the Court of Session, they were charged under Sections 302/34 and 201 of the I.P.C. They denied the commission of the offence.
7. At the trial, Bahadur Chand PW 13 and Chaudhary Lal PW 1 narrated the circumstances in which the dowry was demanded by the accused and also the assurance of good behaviour given by Ashok Kumar. Kala Ram PW 2 testified to the fact of the sending of the telegram. He also stated about his visit to Hassangarh to the house of the accused. He proved the extra-judicial confession made by Jiwan Dass and also testified to the misbehaviour of the females of the accused towards the ladies, who had gone from Kalanaur. Shanti PW 4, resident of Kalanaur, stated that the females of the house of the accused, who were sitting on cots, in place of sharing the grief with them, abused them and pushed them out of the house. Both these witnesses stated that the ashes of the deceased had been collected earlier. Chaudhary Lal PW 1 proved the making of the first information report and also proved the interrogation of Ashok Kumar appellant made by Sub-Inspector Sukhdev Singh and the consequent recovery of the ear-ring, bones and the ash. Prem Raj PW 12 partially supported the case of the prosecution. Sunder Lal PW 14, goldsmith of Kalanaur, identified the ear-ring Exhibit P.1, which was prepared by him at the instance of Bahadur Chand on the occasion of the marriage of his daughter. Raj Kishan PW 10, a neighbour of Jiwan Dass, who was declared hostile, stated that the behaviour of the accused towards the deceased was not abnormal Partap Singh PW 11 did not support any version.
8. When examined under Section 313 of the Cr. P.C. the accused refuted the story of the prosecution as narrated against them and denied the commission of the offence. Ashok Kumar stated that the case against him was false and was concocted at the instance of Chaudhary Lal, who is a greedy person. Chaudhary Lal was satisfied that his sister had died a natural death. Chaudhary Lal wanted him to return the articles given to Pushpa at the time of her marriage and also wanted that the amount spent on the marriage be refunded. On his refusal he was implicated falsely in the case. He was not present at the time of the death of Pushpa. The other accused also made similar statements.
9. After trial, the learned Sessions Judge acquitted Jiwan Dass, father of the appellant, Smt. Indero, Smt. Phullan and Smt. Usha accused. Ashok Kumar was, however, convicted for committing an offence under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 200/-. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for six months. Feeling dissatisfied with the order of conviction, Ashok Kumar has filed this appeal.
10. There is no direct evidence in the case to show that Pushpa had been murdered by any of the accused. Nobody except Prem Raj PW 12 claims to have seen the deadbody of Pushpa. He stated that Pushpa was lying dead in the house of her husband and the body seemed to be partially burnt. The statement of Prem Raj does not inspire confidence as he had not given any reason to follow Jiwan Dass when he was not requested by Jiwan Dass to accompany him. As his statement suggests that he followed on the heels of Jiwan Dass, he was expected to go with Jiwan Dass inside the latter's house. It is not known how he fell behind when both of them started at the same time to go to the house of Jiwan Dass accused. His statement that he jumped over the wall of the house of the neighbour to open the door is equally unimpressive because if the accused had committed any offence, they would not have permitted him to do that. If his statement is at all to be believed, then it is to be taken that he allowed ingress to a group of persons who were standing outside the house of Jiwan Dass. What were the names of those persons and what they did after their entry into the house are the facts which are not known. The neighbours were expected to have resisted any attempt by the accused to cremate the deadbody and destroy the evidence of murder if any offence, in their view, had been committed. The conduct of Prem Raj, P. W. is very suspicious. This suspicion is further aggravated by the fact that even the prosecution was not satisfied with his statement and taking him as a hostile witness, the State counsel cross-examined him with the permission of the Court. It is correct that the testimony of such a witness cannot be thrown overboard on the sole ground that he was declared hostile. Such a witness requires to be corroborated from some independent source to make that part of the statement, which the prosecution wants to believe, to be believable. On examination of the evidence we feel that such material is not forthcoming and he is not corroborated by any circumstances in the case; rather his overall testimony bristles with suspicion. There is no evidence that Pushpa was killed by the accused or any one out of them. The inference of her unnatural death also is difficult to be raised in the circumstances of the case.
11. The second limb of the evidence, which has been relied upon by the prosecution, is the extra-judicial confession of Jiwan Dass. The trial Court did not accept this evidence as provided by Kala Ram PW 2 against Jiwan Dass as he has been acquitted. The conduct attributed to the accused and the other persons present at the house of the accused when Shanti. Kala Ram and others, allegedly visited Hasan-Garh for condolence is not convincing. If the statement of Shanti PW is to be accepted, then the females from village Kalanaur were abused and turned out of the house. If that was the conduct of the females of the house of the accused, then there was hardly any occasion for Jiwan Dass to make a confession to Kala Ram PW, who was in the party, from Kalanaur. The evidence of confession is very unimpressive and unreliable.
12. The learned trial Judge relied upon the recovery of ear-ring at the instance of Ashok Kumar appellant. It is to be found in the evidence of Raj Kishan PW 10, who was no doubt declared hostile and as cross-examined by the Prosecutor that Ashok Kumar accused was in police custody on 13th Jan., 1983. When that was the position, then the prosecution has concealed this fact and the factum of this concealment adversely affects the reliability of the prosecution case about the arrest of this accused on 22nd Jan., 1983 and the recovery at his instance on that date. It is also difficult to believe that the accused, who had cremated Pushpa deceased and had collected the ashes would not dispose of those according to the religious custom. There was no necessity for him to retain some bones and ashes and then bury them at the place, from where those were allegedly recovered. There was no occasion for Ashok Kumar to put gold ear-ring Exhibit P. 1 in the burnt bones. It seems to be a creation of the investigating agency to lend corroboration to its case that the gold earring, which belonged to Pushpa deceased was recovered at the instance of Ashok Kumar accused. The recovery has to be disbelieved being a fabrication.
13. Although in a given state of circumstnaces, the death of the female in her in-laws' house raises suspicion when her parents are not called or associated at the time of. cremation, but this fact alone is not sufficient to raise an inference of murder, against the accused. There should be other circumstances present in the prosecution evidence, if such an inference has to be raised which do not exist in this case.
14. For the foregoing reasons, we do not feel impressed by the prosecution evidence in the case. We accept the appeal and quashing the order of conviction acquit the accused.