Kishan Mal Lodha, J.
1. After the conclusion of the arguments, we had pronounced the following order on October 22, 1984:
Having heard learned Counsel for the appellant and learned Public Prosecutor, we have come to the conclusion that the prosecution has failed to bring home the offence punishable Under Section 302, IPC against the appellant Nachhattarsingh. Hence the appeal is allowed. The conviction and sentence awarded to Nachhattar Singh by the order of the learned Additional Sessions Judge, Raisingnagar dated July 2, 1981, are set aside. Nachhattar Singh appellant is acquitted of the charge under Section 302, IPC. He may be released fortwith, if not required in any other case. We shall give reasons for our order later on.
2. Accused No. 5 Mst. Chhindrakawar and accused No. 4 Mst. Balwantkaur are sister and mother of accused-appellant Nachhattarsingh and daughter and wife of Gurdeosingh. Deceased Smt. Sukhvendrakaur was the wife of Nachhattarsingh, and daughter of Najarsingh. Smt. Sukhvendrakaur was betrothed with the accused-appellant 13 years prior to her alleged murder. At the time of betrothal, her father gave two tolas of gold and Rs. 250/- in cash. There were no talks regarding dowry at that time. Before the marriage, Gurdeosingh, father of the accused-appellant, threatened to severe the relations and demanded 30 tolas of gold and one motor cycle as a dowry. On account of the fear that the relations may be severed, Najarsingh agreed to give 30 tolas of gold and one motor cycle. However, at the time of marriage only 20 tolas of gold was given to Smt. Sukhvendrakaur and Najarsingh could not give the remaining 10 tolas. On account of this, the relations became stained. After marriage, the appellant and the members of his family did not do 'Muklava'. Thereupon, the family members of Smt. Sukhvendrakaur came to Gurdeosingh, father of the accused. After 5 to 7 days, the accused-appellant Nachhattarsingh took Smt. Sukhvendrakaur but mal-treated her. According to the prosecution, accused-appellant Nachhattarsingh, his mother Smt. Balwantkaur and sister Chhindrakaur used to beat her. One day, on account of considerable beating, Smt. Sukhvendrakaur left the matrimonial home and came to her father's house. Thereafter, no body came to take her back. The family members of Smt. Sukhvendrakaur, thereupon, called a Panchayat. On being asked by the Panchayat, Gurdeosingh agreed to keep Smt. Sukhvendrakaur. Thereupon, Smt. Sukhvendrakaur started to live in her matrimonial house and a child was born to her. A sum of Rs. 10,000/- was given on that occasion and four tolas of gold were also given, but the accused-persons were unhappy. It is alleged by the prosecution that on August 10,1978. Smt. Sukhvendrakaur died an unnatural death. The accused appellant Nachhattar Singh and Ajmer Singh took the tractor and went to the house of Smt. Sukhvendra Kaur's brother Inder Singh (PW 1). There, they met Inder Singh's wife. They told her that Smt. Sukhvendra Kaur has died by strangulating herself and thereafter they went away. The wife of Inder Singh sent for Inder Singh. There upon, Inder Singh, Mahendra Singh, Roop Singh, Sohan Singh and Jarnail Singh came to the house of Gurdeo Singh in tractor. There they saw all the four accused persons, and the dead body of Smt. Sukhvendra Kaur was lying there. When they saw the dead body it was wrapped with a 'kes'. PW 1 Inder Singh removed the 'kes'. He found that the clothes of Smt. Sukhvendra Kaur were neat and clean. There was 'malit' on her body and her mouth was closed. The accused persons said that the dead body may be burnt PW 1 Inder Singh entertained some doubt regarding murder and, therefore, he did not agree. He, along with Mahendra Singh and Roop Singh went to the Police Station, Jaswantgarh. When they reached there before that the accused Kartar Singh and Gurdeo Singh were present at the Police Station and had informed about the death' of Smt. Sukhvendra Kaur. The next day, SHO Umed Singh got the post mortem of the dead body of Smt. Sukhvendra Kaur conducted. Thereafter, on 14th and 15th August, 1978, the Panchayat collected and at that time Gurdeo Singh and Kartar Singh told them that the accused persons Nachhater Singh. Smt. Balwant Kaur and Chhindra Kaur have killed Smt. Sukhvendra Kaur. They have done wrong and they may be pardoned. During post mortem, a ligature mark was found on the neck of Smt. Sukhvendra Kaur and there were three injuries on her neck and her death was on account of asphyk is due to strangulation. The Police Officer investigated for an offence of murder under Section 302 IPC and thereafter, filed the challan. Against the appellant, charge under Section 302, IPC was framed. The appellant denied the indictment and claimed trial. The prosecution examined PW 1 Inder Singh, PW 2 Moti Ram, PW 3 Gurbachan Singh, PW4 Bahadur Singh, PW 5 Mahendra Singh, PW 6 Dr. S.K. Agarwal, PW 7 Jarnail Singh, PW 8 Maya Singh, PW 9 Bishan Singh, PW 10 Sukh Charan Singh, PW 11 Prithvi Raj, PW 12 Ummed Singh and PW 13 Liladhar. Thereafter, statement of the accused under Section 313, Cr.PC was recorded. In defence, the accused appellant examined DW 1 Firoz Khan and DW 2 Gurdeo Singh. There is no eye witness to the alleged murder of Smt. Sukhvendra Kaur and the case hinges on the circumstantial evidence.
3. The learned Addl. Sessions Judge has stated that the prosecution has attempted to prove the offence against the accused-appellant by eight circumstances : (I) that Sukhvendra Kaur died an unnatural death on account of the strangulation; (2) that because of the death by strangulation, she died & did not commit suicide; (3) that on the day of her death. Nachhattarsingh was living with Smt. Sukhvendrakaur and the other three accused were also living with her; (4) that before marriage, the father of Nachhattarsingh had demanded 30 tolas of gold as a dowry and as this demand was not complied VVIth, the accused persons were annoyed and gave beating to Smt. Sukhvendrakaur before the death; (5) that the accused persons deliberately gave out the version of suicide to mislead the persons to hide their act of strangulation; (7) that the accused persons wanted to burn the dead body of Smt. Sukhvendra Kaur early so that the evidence may disappear; and (8) that before the Panchayat, Gurdeosingh and Kartarsingh admitted that Nachhattarsingh and other accused persons have murdered Smt. Sukhvendrakaur.
4. PW 6 Dr. S.K. Agrawal, noted the following injuries on the neck:
Injuries on neck
Length of groove was 11' x 1/2', there were abrasions on neck;
(1) Abrasions brown and parchment like 1-1/4' x 1/2' on left anterior side of neck extending from angle of Mendible 1/4' medial to the ligature mark of lower jaw anteriorly downwards towards medial of neck when incised blood was present under sub-cutaneous tissues (ante mortem).
(2) Abrasions brown dry and parchment like 1-1/2' x 1/3' on right anteriorly of neck extending obliquely outwards along neck on right side from middle near right sterno clavicular joint. This abrasion was antemortem.
(3; Abrasions browny and parchment like near injury No. 2, 1-1/3' x 1/3' near injury No. 2 parallel to it, ante-mortem in nature.
5. The injuries are said to be ante-mortem. The doctor opined that Smt. Sukhvendrakaur had died by asphyxia due to stangulation. The learned Addl. Sessions Judge has held that circumstances Nos. 1, 2 and 3 are proved; that the relations between the Nachhattarsingh and his father Gurdeosingh and the father of Sukhvendrakaur were not cordial on account of demand of dowry and as dowry was not given according to the demand, they mal-treated Smt. Sukhvendra; that the story that Smt. Sukhvendrakaur had committed suicide is totally false. Regarding this circumstances there is no evidence, except that of under Section 201, IPC and that no extra-judicial confession has been proved. The reasons given by the learned Addl. Sessions Judge for convicting the appellant Nachhattarsingh are four:
(1) that Smt. Sukhvendrakaur lived with Nachhattarsingh as his wife, on the day when she is said to have been murdered and, therefore had knowledge as to how death was brought about;
(2) that she has died an unnatural death on account of asphyxia;
(3) that there was demand of dowry and so the relations between the accused appellant and the members of Smt. Sukhvendra's family were strained; and
(4) That the accused-appellant had wrongly concocted the story that Smt. Sukhvendrakaur had strangulated herself and created wrong evidence that she hanged herself with a string on the roof, and regarding that a false report was made in the Police.
6. On the basis of these four circumstances, he came to the conclusion that the accused-appellant has committed the offence under Section 302, IPC. He did not believe the evidence of the defence witnesses that accused Nachhattarsing was in field from 8 a.m. to 10 a.m. He further came to the conclusion that it is not proved that accused Kartarsingh had removed or destroyed the evidence. The learned Add!. Sessions Judge, therefore, acquitted Kartarsingh, Smt. Balwantkaur and Smt. Chhindrakaur. He, however, convicted accused Nachhattarsingh under Section 302, IPC and sentenced him to imprisonment for life, together with a fine of Rs. 200/-and in default a further rigorous imprisonment for 2 months. Aggrieved, Nachhattarsingh has filed this appeal.
7. Learned Counsel appearing for the appellant has urged for our consideration that the conviction of the accused-appellant cannot be sustained even according to the four circumstances that have been held to have been proved against the accused-appellant Nachhatarsingh. It was further, sumitted that the marriage had taken place 11 years before and a child was born out of the wedlock of Smt. Sukhvendrakaur and Nachhattarsingh and that there is no evidence that accused Nachhattarsing was in the house at the time when he is said to have committed murder of Sukhvendrakaur. According to him the persons who are said to have informed Nachhattarsingh about the suicide by his wife have not been examined and that on the evidence on record, Smt. Balwantkaur, Smt. Chhindrakaur and Kartarsigh have been acquitted. The learned Addl. Sessions Judge was not justified in convicting accused Nachhattarsingh on the same evidence.
8. We have considered the four circumstances mentioned by the learned Addl. Sessions Judge.
9. P.W. 6 Dr. S.K. Agrawal has stated in the examination-in-chief that deceased Smt. Sukhvendrakaur had died from asphyxia due to strangulation, as a result of three abrasions present on neck, which were ante-mortem in nature occurring in the course of strangulation and as such strangulation was sufficient in the ordinary course of nature to cause death. In the cross-examination he has stated that there were no marks of injuries on the body except the abrasions which he had noticed. It was admitted by him that hyoid bone was intact and that as a rule in cases of hanging, the hyoid bone is not fractured commonly. In her case, larynx and traches were also intact. It has been admitted by him that in the case of strangulation, there will be fracture if considerable force is used in strangulation. According to him, the force was used to compress the wind pipe to choke the respiration but the trachial ring in this case was not fractured. A specific question was put to him that in Tailors' Principle and Practice of Medical Jurisprudence, 11th Edition at pages 513 and 514, it has been stated that in more than 4/5 of all cases of suicidal hanging, the ligature is found and encircling the neck about the larynx i.e. about the hyoid bone; he could not say anything in reply.
10. We have read the statement of P.W. 6 Dr. S.K. Agarwal and it is difficult to come to the conclusion from it as to whether it was a case of strangulation or it was of suicidal death having been caused by hanging by a rope. We have considered the statements of P.W. 7 Jarnail Singh, P.W. 8 Mansingh, P.W. 9 Bishansingh and P.W. 10 Sukhachainsingh. From their statement, it is established that the marriage between the accused-appellant Nachhattarsingh and Sukhvendrakaur had taken place 10-11 years before the date of the alleged commission of crime and that they were not happy with each other. Beyond that nothing also can be inferred from their statements. From the perusal of statement of P.W. 1 Indersingh, who is brother of deceased Sukhvendrakaur, what is established is that the marriage had taken place 10-11 years before and that after the marriage Sukhvendrakaur was beaten by the members of her-in-law's family, inclusive of the husband, as they wanted dowry in the shape of gold;though he had given jeep, but additional demand was made for 30 tolas of gold and a mbtor-cycle, and for fear that the relation would break, the witness is said to have agreed to give 30 tolas of gold. From the prosecution evidence in particular from the statement of PW 1 Inder Singh it is clear that the accused-appellant Nachhattarsingh never demanded anything by way of dowry as all the demands are alleged to have been made by his father, mother & sister. The relations between PW1 Indersingh with accused Nachhattarsingh is said to be good and quarrel with his wife has been assigned to his father, mother and sister. From the statement of PW 7 Jarnailsingh, it is clear that the mother and the sister of the appellant were seen quarrelling with Smt. Sukhvendrakrur. There is no satisfactory evidence that accused Nachhattarsingh used to quarrel with his wife.
11. The four circumstances relied on for proving the guilt of the appellant do not prove the guilt beyond reasonable doubt. The circumstance that accused Nachhattarsingh was the one person who lived with his wife and had, therefore, knowledge as to how death was brought about, is natural and innocuous circumstance. The second circumstance that Smt. Sukhvendrakaur died of Asphyxia; by itself does not connect the appellant with the crime, for, Asphyxia may be due to throttling or may be due to suicidal hanging. The third circumstance relied on is that there were strained relations due to dowry-dispute between the father of the appellant and members of the family of Smt. Sukhvendrakaur's father. For that, the blame can only be fastened on the accused-appellant's father. As stated above, there is no evidence on record that the appellant ever exchanged hot words with his wife or her father's relatives.
12. The remaining circumstances related to the fact that the accused persons gave out a false story as to her death by suicide. It may by stated that the occurrence had taken place at 10 a.m. No evidence what so ever has been produced by the prosecution to show that accused Nachhattarsing was in his wife's room at that time. Whatever information he collected from the members of his family; thereafter, he went to his brother-in-law PW 1 Inder-singh's house and narrated it to him. PW 1 Indersingh did not lodge any FIR though he had gone to the police station. The First Information Report was not lodged by the accused appellant. As a matter of fact, the oral information was conveyed by Kartarsingh and the oral information which was reduced to writing completely exonerates accused-appellant Nachhattarsingh for, he was not in house at the time of occurrence and, therefore, he has gone to lodge the report. On the evidence on which accused Nachhattarsingh has not been convicted, on the same evidence, accused Kartarsingh, Smt. Balwantkaur and Smt. Chhindrakaur were acquitted.
13. In Sawal Das v. State of Rajasthan : 1974CriLJ664 , the appellant was tried for the murder of the wife under Section 302, IPC read with Section 34, IPC. Father and mother were acquitted. While considering the question of liability of the appellant, it was held that the liability of the appellant has to be established individually and not jointly upon him before he is convicted under Section 302 simpliciter and such laibility should be fixed on him conclusively and not by conjectures or presumptions only.
14. Learned Counsel for the appellant submitted that even on the findings recorded by the learned Addl. Sessions Judge, that the four circumstances have been established, it cannot be held on the basis of the material on record that accused Nachhattarsingh has caused the death of his wife Smt. Sukhvenderakaur by strangulation. In this connection, he cited Narainlal v. The State of Rajasthan 1969 WLN (SC)41 and Shankarlal v. State 1981 Cr. LJ 325 (SC).
15. Their Lordships of the Supreme Court in Narainlal's case (supra), in the following circumstances, held that the offence under Section 302, IPC has not been established beyond doubt and, therefore, the conviction is not proper. In that case, the death was due to homicide by strangulation; the husband and the members of his family wanted to perform the cremation ceremony without informing the deceased brother. The husband wanted to cut off all connections with his wife and the beating and mal-treatment was not meted out to her by her husband alone but also by her parents-in-law. It was held that the evidence in that case at best suggested a motive for the husband & his parents to get rid of the wife but there are no circumstances which clinch the husband's guilt beyond any room for doubt.
16. In Shankarlal's case 1981 Cr. LJ 325 (SC), Chandrachud, C.J., speaking for the Court, held that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It was held that the judgment based on circumstances, must show that the finding of guilt, if any has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis and that the falcity of defence cannot take the place of proof of facts which the prosecution has to establish in order to convict accused & a false plea by defence can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.
17. Thus, from the circumstances found by the learned Addl. Sessions Judge the accused-respondent cannot be connected with the offence. It is not established that the accused has committed murder of his wife.
18. We have come to the conclusion that the prosecution has failed to bring home the offence punishable under see. 302 IPC against the appellant Nachhattarsingh. Consequently, the appeal of Nachhattarsingh is allowed. The conviction and sentence awarded to Nachhattarsingh by the order of the learned Additional Sessions Judge, Raisihghnagar dated July 2, 1981 are set aside. Nachhattarsingh is acquitted of the charge under Section 302, IPC. He may be released forthwith, if not required in any other case.