Surendra Nath Bhargava, J.
1. This is an appeal by accused Omprakash against the Judgment of Sessions Judge, Sawaimadhopur dated 7th May, 1982 convicting the accused appellant under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 500/- and also convicting under Section 201 IPC and sentencing him for three years imprisonment and a fine of Rs. 200/-in default of payment of fine, to undergo further rigorous imprisonment for two months. Both the sentences were ordered to run concurrently.
2. The facts of this case are very peculiar. In this part of the country, there has been a superstition that if some body sacrifices the person who borns by breach delivery to the goddess Bheruji he gets hidden treasure and it is told that with this belief the accused appellant murdered his brother-in-law Devi Ram and it is on this charge that the present accused faced the trial.
3. The prosecution case briefly stated is that on 7-11-1980 villagers Heera Lal, Mathura Lal and Ram Prasad saw a dead body floating in a 'Khadda' (pit) near this water channel and reported to Sarpanch Shri Sheonarain (PW 1) of Gram Panchayat Uniyala vide Ex. D3 to the effect that the dead body of a child does not belong to the village but seems to be of some other village. He reported the matter to the Police which is Ex. P. 1. Thereafter the police prepared the Panchnama in the presence of Shri Radhey Shyam and Pannalal, from which it is clear that the name of the deceased was not known till then. The post mortem was conducted on 9-11-1980. The post mortem report is Ex. P. 5, wherein also the name of the deceased was written as 'unknown Hindu' aged about 14 years approximately and that the dead body was found floating on the water. The Doctor has opined that the cause of death is Asphyxia by suffocation, and the time since death is about 3 days. The articles, namely Baniyan half sleeve, one under-wear, one garland in the neck, one black thread in the waist and one shoe on the body of the deceased were taken by the Police vide Ex. P. 2 in presence of two Motbirs Shri Radhey Shyam and Shri Panna Lal. Thereafter, the dead body was cremated vide Ex. P. 3 by the Police as the dead body was unclaimed as the name of the deceased was not known. On a report from Mukhbir of village Pipalda that the dead body belonged to a child from Mewara village, who is the brother-in-law of accused Omprakash, the S.H.O. Shri Sobran Singh (PW 13) went to the village Mewara on 12-11-1980 and interrogated Mst. Laxmi (PW 6) wife of accused Omprakash and sister of the deceased and also Mst. Keshar mother of the deceased and other neighbours. As a result of enquiry, the SHO found that it was accused appellant Om Prakash who had sacrificed (murdered) deceased on the alter of Bheruji with an object of getting some hidden treasure. Thereupon a case No. 112/80 was registered on 16-11-1980. After usual investigation a challan was put up against the accused appellant along with other accused persons in the court of Magistrate who committed the case to the Sessions and the learned Sessions Judge after recording the statements of the prosecution witnesses and recording the statements of accused persons, in which they denied the charges, and after examining two defence witnesses, has ultimately found the accused appellant guilty under Sections 302 and 201 IPC and convicted him as aforesaid, while acquitting other six accused persons. It is against this judgment that the present appeal has been preferred.
4. At the out set, it may be mentioned that there is no eye witness of the said incident and the whole case is based on circumstantial evidence-The prosecution has examined Sheo Narain (PW 1), who is Sarpanch of village Uniyale and who had sent a report to the Police Station Khendar (report Ex. P. 1) and in whose presence the Panchanama of the dead body (Ex. P. 2) was prepared. This Ex. P. 1 was brought to him by Radhey Shyam PW 2 and report was sent at about 8.00 A.M. in the morning and the police had reached the spot at about 10 or 11.00 A.M. When he reached the spot, the dead body was floating, The police also recovered a Thela from near the place containing some clothes, etc., and he had also drawn signed the proceedings drawn by the police on that occasion. Thereafter the witness was called in the police Station after 10-15 days and police had drawn some proceedings in that connection.
5. Radhey Shyam (PW 2) of village Pipalda had taken the report (Ex. P. 1) to Khander Police Station. He is also a signatory to Ex. P. 2 and Ex. P. 3 the proceedings for cremation of the dead body and Ex. P. 4 the site plan. In the cross examination he admits that near the Nala from where the dead body was recovered, one Thela, Safi, Bush-shirt and two Muthiyas were found. He has further submitted that Mst. Laxmi wife of accused appellant was vagabond (Avara) and that after this incident she had gone in 'Nata' in village Sirai, district Muraina.
6. PW 3 Moti Lal is also a signatory to Panchnama (Ex. P. 2). He has stated that he did not observe any injury on the dead body. There were no signs on the neck of the dead body. In cross-examination he has admitted that there were many villagers of Pipalda present there when the Panchanama was prepared, but no body could recognize the dead body.
7. PW 4 is Jagdishprasad, who is a student in Sawaimadhopur College. He knows accused Omprakash and also that he is married in village Mewara and brother-in-law was Devi Ram. He has deposed that he had seen Devi Ram on 5-11-80 when Devi Ram was going to his village Mewara by Bus from Sawaimadhopur at about 8.00 A.M. along with accused Omprakash and both of them got down at Daulatpura and after or two days thereafter he came to know that Devi Ram has died.
8. PW 5 is Dr. Subhash Mehandirtta, who had conducted postmortem of the dead body on 9-11-80 at about 11.30 A.M. The post mortem report is Ex. P5. We shall discuss the evidence in detail later on.
9. PW 6 is Mst. Keshar the mother of deceased Devi Ram. She has deposed that 8 or 9 days before Deepawali, accused Omprakash had come to her house in Mewara and after staying 2-3 days when he was returning he took her son deceased Devi Ram as he wanted to get 'Ganda Taweez', tied to him. At that time Devi Ram was wearing bush-shirt. He had red thread in his neck. He was wearing blue white Baniyan and black shoes. He had a black thread on his waist and was carrying a yellow Nylon Thela, in which he was carrying some clothes for her daughter Laxmi and thereafter Devi Ram did not return home. To days after the Deepawali, accused Omprakash came along with his wife Laxmi and she told that accused Omprakash had sacrificed her brother deceased Devi Ram to Bheruji of Moondarakhed to get the hidden treasure. Omprakash did not talk to her on that occasion. When Laxmi had told her about this, there were several ladies present. She has admitted that Shambhu witness is son in law of her daughter, her husband Gopi did not report the matter to the Police as he got mentally disturbed and the only son in the family had died. Therefore, she asked Banshi, and Jagdish to report the matter to the police. Pannalal reported the matter at the police Station Manpura and Thana Khander. She was not aware if Shambhu had given a written report to the police. She also identified bushshirt shoes and blue coloured Safi, underwear and baniyan belonging to her son Devi Ram which he was wearing at the time when he left the house. She also recognized the Thela which he was carrying and red thread, which he had on his person.
10. The next witness examined is PW 7 Sambhu who admits that he is 'Sadhu' of accused Om and that accused Om had pointed out clothes which were hidden near a tree near Bheruji and taken them out. The recovery list as well as site plan were also prepared and Ex. P 6, 7 and 8 Were signed by him. In cross examination he admits that he had taken Laxmi and her mother after 5-6 days of Deepawali to Police Station Khander when they were called by the police. He was not called by the police at Bheruji's place, but he went on his own accord. A person named Manphool did not go with nor he was present there. The Thanedar did not read over to him what he had written on the papers. He signed the recovery memo by which a Safi, Thela and Bush-shirt were recovered. This recovery was done near the Nala which is at a distance of 3-4 furlongs from Bheruji's place. That place is a common way and the public pass through that way. He admits that Mst. Laxmi has gone in Nata to Tulshi Ram after the accused was arrested. He was unable to recognize Ex. P.6 the plan as to of which place it was.
11. P.W. 8 is Mst Laxmi wife of accused Omprakash and sister of deceased Devi Ram. She has deposed that her husband had gone to Mewara and returned with her brother Devi Ram, who stayed with her for 5-6 days. On-'Saras'(twelth) before Deepawali, her husband took Devi Ram and told that he will go and leave him to Mewara and left the house in the morning. He returned alone on the next night of Dhan-terash and when she asked him as to where he had left Devi Ram at Mewera, Omprakash told her he had gone with Devi Ram up to Manpurand from Manpur he had been to Mewara with other ladies who were going there. Thereafter Omprakash took his meals and again went away without telling as to where he was going. When he returned on next day i.e. Chawdas in the morning and at that time he was very sad and serious and when she asked him as to why he was so sad, he started weeping and told that he had sacrificed her brother Devi Ram to Bheruji of Patan by throttling in order to obtain the hidden treasure at the instance of other accused persons, namly Ramnath, Kana, Gappu, Suraj and Ram Kishan. Thereupon she started crying and when accused Omprakash told her that he would kill her if she cried and, therefore, she got quiet. When she asked accused as to where was the dead body of her brother, he replied that he has burried it in the field and when she wanted to go to see the dead body, Omprakash again told he; that if she went he would kill her. Thereafter on 'Amavsya' there was loud talk that a dead body has been found in the Nala. On Dooj accused took her to her parents and she told every-thing to her mother. Whereupon, she and her mother and others started weeping. The whole village collected there. Mst. Pana told that she had seen accused with Devi Ram at Bhogi Chauraha and Jagdish also told that he had also seen accused with Devi Ram getting down from the Bus at Daulatpura on 'Dhanteras'. She has futher deposed that at the time when her brother went with accused Omprakash, he was wearing full sleeve Polyster Bush-shirt of blue colour and was wearing half pants of green colour and on his head there was a blue coloured Safi having square design and white Baniyan and he was carrying a redish Nylon Thela of green and yellow strips containing Gur and 'Gandadori'. She has further deposed that her husband had told her 10-15 days earlier to Rakhi that her brother has born by breach delivery and if they sacrifice him to Bheruji, they can get the hidden treasure. She has also identified the clothes of her brother as also other articles which he was carrying. In cross-examination she has admitted that she has gone Nata to Tulshi of village Sarai. She has further admitted that she had no issue from accused Omprakash and that he had not told to her father about the matter as he was mad. She had also not talked to Pannaji also but she was told that Panna had gone to making report to the police.
12. PW 9 is Mst. Panna, who has deposed that she had seen the accused with Devi Ram at the Chauraha of Bhagi. In cross-examination she has contradicted what she had stated before the police.
13. PW 10 is Banshi who is a witness to the recoveries with regard to the other accused persons, who have been acquitted by the learned trial court.
14. PW 11 is Omprakash. He was Head Constable and Incharge of police Station Khander on 8-11-1980. According to him Sheo Narain Sarpanch had sent the report through Shri Radhey Shyam, which was received by him at 10.00 A.M. After receiving the same he recorded the police Karyawahi on the reverse and also entered the FIR a copy whereof was sent to the S.D.M., Sawaimadhopur and thereafter, he started to site with two Constables and got the dead body recovered from the Nala Ex. P. 4 is the plan, which was prepared at the time of Panch-nama. Panchnama (Ex. P. 27) was got prepared. He left for Sawaimadhopur at 6.00 p.m. for getting the post-mortem of deceased. After post-mortem be cremated the dead body as it was unclaimed dead body as the identity was not disclosed. He got the clothes etc., seized and the recovery memo was prepared. In the cross-examination he admitted that at the time of Panchnama there were several persons from Pipalda village including Beerbal, Bharatlal and Sheonarain and they told that the dead body does not belong to any person of village Pipalda.
15. PW 12 Lal Chand is the Investigating Officer, who has deposed that he started investigation from 26-11-1980 when he obtained the remand and on 27-11-1981 accused Kana gave information (Ex.P. 9) that he had hidden one Nylon Thela belonging to deceased in his field and will get it recovered. There is note by the Sessions Judge that the witness was not giving the correct statement, though he was giving his statement after looking into the case-diary and that the witness failed to reply the questions as to what he did after this information was given by Kana. Thereafter the Id. Sessions Judge recorded the statement in the form of questions and answers. Since his statement relates to accused Kana, Ram Nath and Kalla, it is not necessary for us to discuss the same in detail.
16. PW 16 Sobaran Singh, SHO, Police Station Khander started investigation on his return on 11-11-80 when he was informed by an informant that the dead body belonged to a child of village Mewara PoliceStationManpur district Muraina in Madhya Pradesh and that he was brother-in-law of accused Omprakash. He searched for the accused at Pipalda but he was not there, so he went to village Mewara on 15-11-l980 and met Srnt. Laxmi and Smt. Keshar and recorded their statements. He also recorded the statements of Jagdish and Mst. Pana, who had come to the house of Mst. Keshar. Thereafter he went to village Daulatpura on 13th and made enquiries from Mst. Kastoori also. On 15th November he got the post mortem report and recorded the FIR No. 112/80 (Ex. P 20). Thereafter, he recorded the statements of witnesses under Section 161 Cr.P.C. at Pipalda and Daulatpura and since Jagdish was not available in his village, he recorded his statement only on 23-11-1980. Accused Om Prakash was arrested on 17-11-1980 vide Ex. P. 21. The statements of Mst. Keshar and Mst. Laxmi were also recorded under Section 164 Cr.P.C. On 19-11-1980 accused Om Prakash gave information under Section 27 of the Evidence Act that he can point out the Safi and the place of incident. The information was recorded vide Ex. P. 25. Accused Omprakash further gave information (Ex. P. 26) that he had kept the dead body in the room of Ram Kishan Meena. Thereafter, accused got the Safi recovered vide recovery memo Ex. P. 7 and site plan of that place is Ex. P. 6. In this cross-examination he admitted that he had received in writing Fx. D 3 by Sheo Narain Sarpanch on 12-11-1980. During investigation Mst. Laxmi had also given some report in writing but surprisingly enough the same has not been produced in the court.
17. The last witness examined by the prosecution is PW 15 Indraveer Singh, Additional Munsif and Judicial Magistrate, Sawaimadhopur, before whom Mst. Keshar and Laxmi had identified the articles, Nylon Bag, Bush-shirt blue coloured, one blue coloured Safi and black shoes.
18. The accused denied the prosecution story in his statement under Section 313 Cr.P.C. and has submitted that his wife Smt. Laxmi was vagabond (Avara ) from the very beginning and she does not want to stay with him and had gone to her father's place 3 to 4 times on the earlier occasions also. The dead body which was recovered was not of his brother-in-law Devi Ram and he has been falsely implicated by Laxmi. In defence, Bharatlal has been examined as DW 1 who has deposed that in village Pipalda, Police did not get any documents prepared in his presence though he was made to sign some documents. He signed the papers at the place where the dead body was lying and at that time 100-200 villagers were present and on that occasion the wife of accused Omprakash was also present along with other ladies, and none of them recognized the dead body. In cross-examination, he has deposed that the place of Bheruji is at a distance of 4-5 miles from the place where the dead body was lying. He had given a written report to Sarpanch Sheonarain. He has also denied that Devi Ram deceased was born by breach delivery (Ulta Paida Huwa) or that he was sacrificed by the accused persons. He has also admitted that accused Surajmal is his real brother. Other accused are also in his relation.
19. DW 2 Ram Niwas has also deposed that there were about 150-200 persons where the dead body was recovered from the Nala. He knew Devi Ram brother-in-law of accused Omprakash. The dead body was not that of Devi Ram. DW 1 Bharatlal's field is just near that place. Wife of accused Omprakash was also present and the police had made enquiries from her at that time. In cross-examination he has deposed that Devi Ram is alive and he had seen Devi Ram after the alleged incident.
20. We have carefully gone through the complete record of the case and have also considered the arguments of the learned counsel for the accused appellant and the learned Public Prosecutor.
21. Mr. M.A. Khan, learned counsel for the accused appellant has submitted that the evidence of Mst. Laxmi wife of accused Omprakash cannot be looked into as it is not admissible in view of Section 122 of the Evidence Act and in this connection he placed reliance on Mst. Fatma v. Empror AIR 1914 Lahore 380 which was a case where a woman was charged with the murder of her stepson and her husband's evidence in so as it relates to the alleged confession by her to him was held to be inadmissible in view of Section 122 of the Evidence Act. He has also placed reliance on Ram Bharosey v. State of U.P. : AIR1954SC704 wherein also the Hon'ble Supreme Court held that the statement of the accused to his wife that he would give her jewels and that he had gone to the house of the deceased was held inadmissible under Section 122 of the Evidence.
22. Learned counsel for the accused appellant has further placed reliance on another decision of the Supreme Court in M.C. Verghese v. T.J. Ponnan and Anr. : 1970CriLJ1651 , wherein also their Lordships of the Supreme Court have observed that Section 122 of the Evidence Act only prevents disclosure in giving evidence in course of the communication made by one spouse to the other unless the other consents. Their Lordships have further observed that this prohibition continues even after the marriage is declared to be nullity. He has also placed reliance on Appu v. State : AIR1971Mad194 and A. Manibhushau Rao v. Suryakantam AIR 1981 AP 68.
23. Learned counsel for the appellant has further submitted that the evidence against the accused appellant is only of interested witnesses who are closed relations of the deceased and no independent witness, though they were available have not been examined and, therefore, the court should be very jealous in examining their evidence and they should do it with great care and caution and in this connection he has placed reliance on Sharad Birdhichand Sarda v. State of Maharashtra : 1984CriLJ1738 .
24. He has, further submitted that since the prosecution case is based solely on circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged or in other words the circumstances relied upon must clinch the issue of guilt. The mere circumstances of last seen in the company of the deceased cannot prove the charge and the alleged recoveries made at the instance of the accused are very suspicious and it is not a case where the chain of circumstantial evidence is so complete which is consistent only with the guilt of the accused and not with the innocence. There are several missing links and the accused is entitled for the benefit of doubt and in this connection he has placed relience on Prem Thakur v. State of Punjab : 1983CriLJ155 and Prabhu v. State of UP : 2SCR881 .
25. Learned counsel for the appellant then submitted that the victim's dead body was not identified by any of the village persons including the relations and the corpse also could not be ascertained as it was highly decomposed and it was doubtful whether the death was homicide or by accident or suicidal and has placed relience on Prema Ram v. State of Rajasthan 1984 RCC 54.
26. On the other hand, learned Public Prosecuter has supported the Judgment of the learned Sessions Judge and has submitted that it is a case of very serious nature where the accused has committed the murder of his brother-in-law only to get the hidden treasure under wrong belief that if he scrificed a person who has born by breach delivery at the alter of Bheruji, he would get the hidden treasure and that in such cases no direct eye witnesss can possibly be available and the circumstances brought on record namely, the last seen, the recovery of articles of the deceased leave no room of doubt that the accused was guilty of the offence charged.
27. We have considered the various submissions of learned counsel for the appellant and the learned Public Prosecutor.
28. This is a case where there is no direct evidence of any witness and the whole case depends entirely on circumstantial evidence and in such a case when it solely depends upon the circumstantial evidence, the circumstances, must be of such a conclusive nature that there is only one and one conclusion that the accused is guilty of the crime with which he is charged. There should be no missing links and the circumstances must clinch the issue of guilt. Every effort should be made to find out as to who committed the murder, but the duty is not done by holding some or the other guilty somehow or the other. In the present case circumstances of last seen is also depending only on the evidence of interested witnesses. The evidence of the wife of accused regarding the confession made by the accused is not admissible in evidence in view of s. 122 of the Evidence Act and the appellant. The evidence of motive also does not inspire confidence because in these days of advanced science and technology it is unbelievable that any person will have superstition in the old saying if at all that if a person having born breach delivery is sacrificed at alter of Bheruji, he would get hidden trreasure and if the motive is also absent, the only circumstances that the accused had given information under Section 27 which led to the recovery of Safi, is not sufficient to hold that the accused was guilty. If it has come in evidence that one safi was recovered at the place where the dead body was found and the prosecution case is not that the deceased had two safies and that if a Safi had already been recovered at the time when the dead body was taken out from the Nala, the evidence led by the prosecution that any information was given by the accused or that the Safi was recovered on the basis of that information, does not inspire confidence.
29. Moreover, in the present case, the symptoms which have been given by the doctor are more in favour of a theory that death was on account of drowning rather than a dead body having been thrown in the Nala.
30. We have looked into the Medical Jurisprudence by Dr. R.M. Zhala and Justice V.B. Raju as also the Forensic Medicine by Smith Fiddes. In this view of the matter, we are of the opinion that the prosecution has failed to bring home at guilt of the accused. The circumstances do not lead to one and only one conclusion that the accused is guilty of the offence charged with and, therefore, the accused appellant is entitled to the benefit of doubt.
31. In the result, the appeal is allowed. The conviction of the accused appellant under Sections 302 and 201 IPC is set aside and he is acquitted of the offence charged. The accused appellant be released forthwith, if not required in any other case.