S.S. Byas, J.
1. Accused Makhan Lal Masih was convicted under Section 302 IPC and sentenced to imprisonment for life by the learned Sessions Judge, Bhilwara by his judgment dated September 21, 1979. He has come-up in appeal to challenge his conviction and sentence. The accused has been found guilty for committing the murder of his wife Smt. Soni.
2. Briefly stated the case set up by the prosecution is that the accused is a resident of village Berana PS. Asind District Bhilwara. He was originally a Hindu belonging to the Scheduled Casts BaLal He renounced Hinduism and embraced Christianity in 1970. He wanted to convert her to Christianity but Smt. Soni did not oblige him despite his presistent efforts. , It is suggested that it sowed the seeds of discordance between them. The Christian Mission gave him a job at Rudki in Uttar Pradesh. He started living there but used to come to his house at Berana after an interval of two or three months. Three children were born to Smt. Soni from him out of whom Kumari Prem is the eldest. She was nearly 9 years in age at the time of the commission of offence (December 1978). The accused came from Rudki December 1978 on the occasion of Christmas Day. In the evening of December 23, 1978 the accused, the victim Smt Soni, PW 3 Ku. Prem and other children after taking their meals went o sleep. They slept together in a room of their house shown by mark '2' in the site plan Ex. P 3. In the early flours hours December 24, 1978 the accused awoke he children, left the house and told PW 1 Ku Prem that her mother had gone to village Babaji-ki-Mandi. The accused first took his children to Babaji-Ki-Mandi and from there to Asind. At Asind he went to the house of PW 12 Hari Narain who is also a Christain and requested him to keep his children. He also told him that his wife wanted to kill him and his children and he had brought the children to him with great off(sic)ntiy. He had brought them so to that they might remain Christian He also told him that his wife wanted the children to remain as Hindus Han Narain refused to keep the children. From Asind, the accused took the children to Beawer on the same day and keot them with some Christian family. Smt. Soni used to wear silver Kariyas (Article I) in her feet. The accused pawned these kariyas to PW 5 Bhanwar Lal for a sum of Rs. 300/-. From Beawar he went to Ajmer and returned on December 25, 1978. He picked up his children from Beawar and brought them to Asind. At Asind he left Ku Prem with her maternal uncle On the same day at about 4.00 P.M he presented written report Ex. P 11 to the Station House Officer Police Station, Asind. In Ex. P 11 it was mentioned that his wife Smt. Soni was missing since the evening of December 23, 1978 and her whereabouts could not be ascertained despite all efforts. He requested for police help to search her out. The Station House Officer Jabbersingh (PW 13) deputed the Head Constable Abid Hussain (PW 6) and two other constables to accompany the accused to his village Berana and made efforts to search out the missing lady Smt. Soni The Head Constable and the accused alongwith some police constables reached Berana in the evening of December 25, 1976 and stayed at the house of Mangi Lal (PW 4). It is alleged that in the morning of December 26, 1978 the accused told PW 4 Mangi Lal and his brother Udai Lal (PW 1) that he had killed his wife by throttling her and that he had put her dead body in the new room of his house. PW 1 Udai Lal and PW 4 Mangi Lal informed the Head Constable Abid Hussain (PW 6) accordingly. Thereupon PW6 Abid Hussain asked the accused about his wife and he accused) deposed the same facts before him also. The Head Constable Abid Hussain took PW I Udai Lal PW 4 Mangi Lal and the accused to his house which was found locked from out-side. The accused opened the lock with the key he was having with him. The Head Constable and the party found the victim's deadbody lying in the room shown by mark'2'in site plan Ex. P 3. The Head Constable found it a case of murder and wrote his report on the back of Ex. PH. He sent it to Police Station, Asind. A case under Section 302 IPC was thereupon registered at about 9.00 AM on Dec. 26, 1978. The investigation was taken up by the Station House Officer Jabber Singh (PW 13). He arrived on the spot and prepared the inquest report of the victim's dead body He also prepared the site plan. The postmortem examination of the victim's dead body was conducted at about 1.30 PM on December 26,(97* by P*V 10 Dr. Dhanraj Panwar, the then Medical Officer Incharge, Primary Health Centre, Asind. He noticed the following injuries:
1. Bruise 2' x 1-1/2' over right side of nose and cheek blue in colour.
2. Abrasion 2' x 3/4' horizontally over right side of the neck upper third.
3. Abrasion 4' x 2' over back side left lumber region.
4. Abrasion 1' x 1/2' over front side of left shoulder obliquely.
5. Abrasion 1/2' x 1/3' over left side of neck obliquely in the middle.
6. Blister 1 1/2' x J/ ' superficial blister present over right lumber region back side to decomposition. Foul smell present.
Neck was swollen. On incision there was extravasion of blood in subcutaneous tissue ssen on uppert herd of neck on both the sides. Both the lids were partially closed and congested and puplis on both sides were found dialted.... Lips and tongue swollen. Tongue bite of 1/2' seen over right margin Hypothenar and thenar muscles of left hand eaten up by some rats or insects.... Muscles Bones and Joints. The muscles of neck around trachea and upper third of neck dark in colour lateranon was seen on neck muscles. Extravasion of blood in subcutan(sic)ous tissue present. There was a fracture for byoid-bone in the neck.'
All the injuries were ante mortem. The doctor was of the opinion that the cause of death of Smt. Soni was asphyxia due to strangulation. The post mortem report prepared by him is Ex. P 13. The accused was arrested at about 4.30 P.M on December 26, 1978. In consequence of the information furnished by him on December 27, 1978 silver Kariyas (Article 1) were recovered from the shop of PW 5 Baanwer Lal at Beawar. The silver Kariyas were put to test identification and they were correctly identified by PW 3 Kumari Prem as belonging to her mother. The clothes of the deceased-victim which were found stained with blood, were also signed and sealed. On Caemical Examination, human blood was found on them On the completion of investigation the notice submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Gulabpura who in his turn commmitted the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under Section 302 IPC against the accused to which he pleaded not guilty and faced the trial. Ii his statement under Section 313 Cr.P.C he put forward the defence of complete denial and stated that he has been falsely implicated. In support of its case the prosecution examined 14 witnesses. The evidence adduced in defence was to the effect that the relations between the accused and his wife were cordial and sweet. On the conclusion of trial the learned Sessions Judge held the charge duly brought home to the accused. He was consquently convicted and sentenced as mentioned at the very out set.
3. Before proceeding further we may point out that the cause of death of Smt. Soni was not challenged before us by the learned Counsel for the accused. We have carefully gone through the testimony of Dr. Dhanraj Panwar (PW 10). We find no good and cogent reasons to disbelieve his opinion that the cause of death of Smt. Soni was asphyxia due to stranglation. As such the death of Smt. Soni was not natural but homicidal.
4. Admittedly there is no direct evidence about the occurrence. The accused was convicted on various pieces of circumstantial evidence. For ease and convenience it Would be proper to categorise the various pieces of circumstantial evidence adduced by the prosecution. It consists of the following sets:
(1) The deceased-victims body was lying in a room of the accused's house.
(2) The victim, the accused and the children including PW 3Ku Prem slept together in that room in the evening of December 23, 1978 and the victim was not seen alive thereafter.
(3) He (accused) took his children after mid-night in the early hours on December 24, 1978 first to Babaji-Ki-Mandi, from there to Asind and then to Beawer. He brought them back on December 25, 1978 and left Ku. Prem with her maternal uncle.
(4) Extra judicial confession made before PW 1 Udai Lal, PW 4 Mangi Lal and others.
(5) The accused made a statement before Hari Narain (PW12) that his wife (victim) had gone to hell. He requested him to keep his children with him.
(6) The accused lodged report Ex. P 11 with false allegations that his wife was missing since the evening of December 23, 1978. He remained silent upto December 25, 1978.
(7) He (accused) took the police Head Constable and other witnesses to his house and opened the lock of the room with the key he was having with him. In that room the victim's dead body was found lying.
(8) He took his children under the false pretext that their mother (victim) had gone to Babaji-ki-mandi.
(9) The recovery of silver Kariyas (Art. I) is consequence of his information. The victim used to wear these Kariyas in her feet and
(10) The accused had a strong motive. The victim, though his wife, remained Hindu, did not embrace Christianity and refused to oblige the accused who wanted her conversion from Hinduism to Christianity.
5. The learned Sessions Judge disbelieved the evidence relating to (i) extra judicial confession and (ii) the accused's opening the lock of the room in which the victim's dead body was lying with the key ha was having with him. The extra judicial confession was held not proved for the simple reason that PW 1 Udai Lal and PW 4 Mangi Lal to whom it was alleged to have been made turned hostile and refused to state that the accused confessed before them to have killed his wife. The evidence relating to the accused's opening the room with his key was disbelieved because this fact was not mentioned by the Head Constable of Police Abid Husssain (PW 6) in his report C to D, which he endorsed on the back of Ex.p. 11. The remainingeight other sets of circumstantial evidence were held proved. According to the learned Sessions Judge they lead to the irresistiable conclusion that Smt. Soni was done to death by the accused and none else.
6. We have heard Shri Doongar Singh learned Counsel appearing for she accused-appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
7. In assailing the conviction it was vehemently contended by Shri Doonger Singh that the various pieces of circumstantial evidence did not stand proved and even if taken as proved, were not sufficient to give rise to a presumption that Smt. Soni was finished by the accused and none else. It was argued that artificial inferences were drawn from the various links of the circumstantial evidence. The inferences drawn are neither plausible nor logical. In reply, the learned Public Prosecutor supported the findings of the Court below and submitted that it can be safely inferred from the various sets of evidence that the accused and the accused alone was the perpetrator of the crime. We have bestowed our thoughtful consideration to the respective submissions. We propose to examine each set of evidence and to see whether taken together they are sufficient to raise inference that the victim was done to death by the accused.
8. There is direct evidence of PW 6 Abid Hussain, Head Constable Police, on the first point. He stated that in the morning on December 26, 1978 he, his fellow constables accompanied with PW 1 Udai Lal and the accused went to the house of accused. The accused opened the lock of his house. In a room of the house the victim's dead body was lying near the will. He has mentioned this fact in his report C to D on the back or' Ex. P 11. Though PW 1 Udai Lal did not support the prosecution on this point, the testimony of PW 6 Abid Hussain cannot be dismissed on that account. The Investigating Officer Jabbar Singh (PW 13) later on arrived on the spot. He prepared the inquest report Ex. P 4. In Ex. P 4. it has been clearly mentioned that the victim's dead body was lying in a room of the accused's house. PW 1 Udai Lal who is a Motbir of the inquest report Ex. P 4 though hostile to the prosecution, admitted that when the Investigating Officer arrived in the village, he was called as a Motbir. The victim's dead body was lying in a room of the accused's house. His signatures A to B are there on Ex P 4 There is, thus, overwhelming evidence that the victim's dead body was found lying in a room of accused's house.
9. There is again overwhelming evidence to show that the victim, the accused and the children including PW 8 Kumari Prem slept together in the room in the evening of December 23, 978 and the victim was not seen alive thereafter. PW 3 Ku Prem is the daughter of the accused. She was nearly 9 years old when she was examined in the court below. As she was found of tender age, her competency to testify was judged by preliminary examination. On preliminary examination she was founded competent to testify. She deposed that her father (the accused) used to come from Ruoki after some interval to village Barana. In the preceding night of the day of occurrence she, her mother, her father and her infant brothers slept in a room. When her father got her awoke in the early hours, she did not find her mother there in that room. Her father told her that her mother had gone to village Babajl-ki-Mandi. She was cross-examined but nothing could be elicited from her to make her testimony unworthy of credence on this point. After all she is the daughter of the accused as well as of the deceased-victim We are unable to conceive that she would falsely depose agains her own father for no apparent reasons More over what she testified appears quite natural and probable. PW 11 Devi Lal is the real brother of the accused. He also deposed that a few days before the occurrence the accused came from Rudki and lived in his house with his wife and children. One day found the accused's house locked. Fn the preceding day the accused, the victim and their children were there at the house of the accused. He was also cross-examined but with no discredit to what he testified. He is the real brother of the accused and we are unable to imagine that he would falsely depose against his real brother. It, therefore, stands proved that the accused came from Rudki a few days before the occurrence. In the evening of December 23, 1978 he, the deceased-victim, Kumari Prem (PW 3) and the other two infant children slept in a room of the accused's house and thereafter the victim was not seen alive.
10. Coming to the next set of evidence that the accused took his three children including Ku. Prem (PW 3) after midnight in the early hours on December 24, 1978 to various places, there is again the testimony of PW 3 Ku. Prem. She deposed that accused got her awoke after midnight in the early hours. She did not find her mother there in the room. Her father (the accused) told her that her mother had gone to Babaji-ki-Mandi. The accused then took her and his two other children in that night to Babaji-Ki-Mandi. The accused told her there that her mother had gone to Asind. From Babaji ki-Mandi the accused took her and the other children on foot to Asind in the very night. When they reached Asind, it was the sun-rising time. At Asind also she did not find her mother. At Asind they went to the house of Hari Narain (PW 12). From there the accused took her in a bus to Beawer and left her with some Christian family. The accused went to Ajmer from Beawer and returned next day. He then took her with him and came to Asind. At Asind he left her with her maternal uncle Kanhaiya Lal. The learned Sessions Judge accepted the testimony of this witness as true on this point. After a careful scanning of what she deposed we are of the same view. Her testimony could not be shaken by the accused in any manner. Otherwise too, what she deposed is natural, probable and fully first-in with the circumstances of the case. The conduct of the accused in awaking his children after the midnight and taking them together on foot in that cold month to various places speaks heavily against him. Since the victim had left his (accused's) house, it was most unnatural on his part to if leave his house in the cold night and that too on foot with there children. The normal conduct would have been to make a search for her first in the village and thereafter at some other place. But the accused secretly left his house in the night with his three children and took them to various places. His taking the three children in this manner speaks heavily against him. PW 12 Hari Narain is a resident of the accused's village but lives in Asind. He is also a christian. He deposed that at about 6.00 or 6.30 A.M. on December 24, 1978 the accused came to his house with his daughter Ku. Prem and two sons. The accused with his children came on foot. The accused requested him to keep his children with him. The accused told him that he had reached there with great difficulty. His wife wanted to commit suicide with her children and also wanted to kill him. He had, therefore, brought the children from her so that they may remain Christian. The accused fur her told him that his wife had gone to hell, The witness asked him whether she had fallen from the roof of the house then the accused again repeated that she had gone to hell. The witness further stated that the accused wanted him to keep his three children with him. He refused to oblige him. The accused thereupon left his house with his three children. In Cross-examination he admitted that he and the accused belong to different Churches. But thin is not a second reason to disbelieve what he testified on oath. From what he deposed it can be safely inferred that the accused reached his house at about 6.00 or 6.30 AM on December 24, 1978. The accused told him that his wife (victim) had gone to hell. He wanted to keep his children with him but the witness refused to oblige him. The testimony of this witness is not open to any challenge, on this point.
11. The accused lodged report Ex. P 11 at about 4.00 PM. On December 25, 1978 at Police Station, Asind mentioning therein that his wife was missing since the evening of December 23, 1978, There are various cir cumstances to strongly suggest that his report of missing was false and mischievous. As stated ea(sic) lier, the accused came with his three children at about 6.00 or 6.30 AM on December 24, 1978 to Asind at the house of PW 12 Hari Narain. If his wife was really missing, he would have lodged report Ex. P 19 then and there at Police Station Asind. But he failed to do so. He remained silent upto December 23, 1978 and lodged report Ex. P 11 only at about 4.00 PM on that day There is nothing to suggest that the accused made attempts to search out his missing wife. He did not contact his relatives at Barana or Asind but went to Beawer and Ajmer taking his children with him. The conduct of a husband whose wife is found missing from his house at Barana, he would not have taken his children in the cold night on foot to various places He would have stayed there in his house at Barana and would have made efforts to trace her out. Not only so, he even told Hari Narain (PW 12) in the morning of December 24, 1978 that his wife had gone to hell. Thus, the report Ex. P 11 lodged by the accused at police Station, Asind about the missing of his wife is not only false but mischievous too. In order to establish his innocence the accused had presented this false report Ex. P. 11. This fact again speaks volumes against the accused.
12. PW 3 Ku. Prem deposed that her father told her that her mother bad gone to Babaji-ki-mandi. He took her and the other children in the night on foot to Babaji-ki-mandi but her mother was not found there. The accused then told her that she had gone to Asind. The accused took her and the other children to Asind in that night but at Asind also her mother was not found. The accused staking the three children on these false pretexts is a strong circumstances speaking against him. What the accused did is contrary to the normal human conduct. The normal person never acts and behaves in the manner the accused did.
13. Taking the recovery of silver Kariyas (Article 1) in consequence of the disclosure statement made by the accused, there is no difficulty about it PW 3 Ku. Prem is the daugher of the deceased victim. She correctly idendified silver Kariyas (Article 1) both in the test-identification and during trial. She deposed that her mother used to wear these silver Kariyas constantly in her feet. The accused pledged them for a sum of Rs. 300/- to W 5 Bhanwer Lal at Beawer on December 24, 1978. PW 5 Bhanwer Lal eposed about this pledge. The accused was arrested at about 4.30 P.M. in December 26, 1978 Vide arrest memo Ex. P 7. At about 12.00 noon, on December 27, 1978 he made the disclosure statement Ex. P 18 before the investigating Officer that he had sold the silver Kariyas of his wife to a anal at Beawer. In consequence of this information, the accused took the investigating Officer to the shop of PW 5 Bhanwer Lal at Beawer and got le silver Kariyas (Article 1) recovered. The Investigating Officer PW 13 Jabbar Singh has proved the disclosure statement and the recovery of the ver Kariyas. PW 5 Bhanwer Lal has lent full support to tois fact of recovery The accused, in his statement under Section 313, Cr. PC has ry cleat aomitied that he had sold these Kariyas to PW 5 Bhanwer Lal has defence taken by him is that the Kariyas (Article 1) are not of his wife it are of his mother. There is no truth in it. PW 3 Ku. Prem, who is the al daughter of the accused, has stated that her mother Smt. Soni (the aceased-victim) used to wear these Kariyas constantly in her feet. The accused did not examine his mother in defence In these Circumstances we agree with the learned sessions Judge that the deceased-victim Smt. Soni used to wear these silver Kariyas (Article 1) constantly in her feet The accused pledged them with PW 5 Bhanwer Lal on December 4, 1978 and later on got it recovered by making a disclosure statement to the Investigating Officer. This recovery of the victim's ornaments constitutes a formidable link in the chain of circumstantial evidence against the accused. It suggests that the accused removed these silver Kariyas (Article 1) from the victim's feet and deposed them in the manner alleged by the prosecution.
14. The motive alleged is that the accused had embraced Christianity some years ago before the occurrence. He also wanted the victim to adopt this new religion. The victim used to protest and did not oblige the accused. The victim's presistent refusal consternated the accused. She used to wear the traditional clothes and ornaments of the locality such as Ghagra, Doongra, Kanchli, Kariyas, Hansli, and Borla etc. The accused did not like this traditional fashion and wanted her to wear Saree. The victim (sic)ain did not oblige him. It is suggested that the accused got highly annoyed. PW 3. Ku. Prem deposed that despite the accused's presistent (sic)orts, the victim (her mother) did not go to Church. She further deposed at the victim used to wear the traditional ornaments and clothes. PW 11 (sic)eva, who is the real brother of the deceased victim also stated that though the accused had embraced Christianity, his sister remained Hindu and did not adopt the new religion of her husband. She did not also oblige the accused by going with him to Rudki though he wanted to take her there. It in be safely inferred from these circumstances that the accused was annoyed with the victim for the reasons discussed above.
15. The various circumstances alluded to above and which stand (sic)oved beyond any manner of doubt, when assimilated, make out a complete (sic)bain of inculpating links against the accused. This chain reveals that (i) accused embraced Christianity and despite his presistent efforts the (sic)ictim did not adopt his new religion, (ii) the victim used to wear traditional (sic)ornaments and clothes of the locality which the accused did not like, (iii) the accused came from Rudki a few days before December 23, 1978, (iv) in the evening of December 23, 1978 the victim, the accused and the children of the family including PW 3 Ku. Prem slept in a room of the accused's house, (v) the accused woke his children after midnight and in the early hours of December 24. 1978 and took them to Babaji-ki-Mandi, from there to Asin(sic) and then to Beawer under the false pretext that their mother had gone (sic) Babaji-ki-Mandi. It was a cold night of the month of December, (vi) the accused went to PW 12 Hari Narain and told him that he had come with great difficulty with his children, his wife had gone to hell and he requested him to keep his children with him, (vii) the accused lodged report Ex. 11 with false allegation that his wife was missing since the evening of December 2, 1978, VII he remained silent and lodged report Ex. P 11 only on December 25, 1978. Had his wife been missing, it was expected that he would have file the report of missing much earlier December 23, 1978, when he was at Asia where there is a police station and where he ultimately lodged report Ex. P 1 (ix) he sold the silver Kariyas (Article 1) which the victim was wearing where she went to sleep in the evening of December 23, 1978. This suggests that he had removed these Kariyas from her feet; and (x) the conduct of the accused is highly unusual and speaks heavily against him.
16. An attempt was made by the learned Counsel to impress upon u(sic) that some unknown person committed the murder of the victim elsewhere and planted her deadbody in his room. We are unable to accept the contention. A discused above there is formidable evidence of PW 3 Ku. Prem that the accused, the victim, she and other children slept in the room of the accused's house in the evening of D-clamber 24, 1978 and thereafter her mother (victim was not seen alive. The accused took his children on foot in the dead of night to various villages. When he left the house in that dead of night he must have locked the room. Nobody leases the room unlocked while leaving it. We, therefore, have reasons to believe that the accused had locked his house before having it in that night. As such no body else could plant the dead body of the victim in his hi use.
17. Thus, taking the prosecution evidence as a whole, it can be safely inferred that the victim was done to death by the accused and done else.
18. An accused is to be convicted on evidence. It is immaterial whether the evidence is direct or circumstantial. It is not permissible to treat one of them as inferior or superior to the other. What matters is the merit of evidence and not whether it is circumstantial or direct. When the case rests on presumptions and inferences to be drawn from circumstantial evidence, such inferences and presumptions should be rational, natural and logical In drawing these presumptions and inferences, to human conduct and their bearing on the facts of the given case. The circumstantial evidence should be like a spider's web. leaving no exit for the accused to slip away. The various links in the chain, when taken in isolation, might not connect the accused with the commission of the crime but when taken together, may unmistakably point out the guilt of the culprit. It is the totality and cumulative effect of the various incriminating circumstances which should be taken into consideration while judging the guilt or innocence of the accused. In the instance case, the various sets of incriminating circumstances unmistakably point out that in all probability it was the accused and the accused alone who had committed the murder of his wife.
19. As a result of foregoing discussion, we are unable to agree with the learned Counsel that the conviction of the accused is bad and unsustainable. We are of the opinion that he was rightly convicted and sentenced. (sic)d No interference is called for.
20. The appeal of accused Makhan Lal Masih has no force and must (sic) dismissed.
21. The appeal is consequently dismissed.