Lakshman Uraon, J.
1. This criminal appeal is directed against the judgment and order of conviction and sentence dated 17.5.1995 and 19.5.1995 respectively, passed by Sri Ashok Kumar Prasad, learned Sessions Judge, East Singhbhum at Jamshedpur, in Sessions Trial No. 258 of 1993, whereby and whereunder, the appellant has been convicted under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and further be has been convicted under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years, directing both the sentences to run concurrently.
2. Informant Rengtu Bhagat (PW 7), father of deceased Jasoda Bhagat of village Kallkapur, had given his daughter Jasoda Bhagat in, marriage to this appellant Hari Ram Bhagat of Village-Basila in the year, 1990. Jasoda had given birth to a child who was 11 months old at the time of incident. On 28.4.1993 at about 3.45 p.m. Nagendra Bhagat (PW 5) of Village Basila went to him and asked him to go to his daughter's Sasural immediately. At about 4.00 p.m. the. informant along with his villagers went to the Sasural of Jasoda Bhagat at Village Basila. He saw the house of his son-in-law burnt. The door was open. Inside the room he saw the dead body of his daughter Jasoda Bhagat completely burnt. Her tongue was protruded and was pressed between the teeth. She was found near, the western side of Doll (place for keeping food-grains). Half burnt roof was fallen on the dead body of Jasoda Bhagat. The other house hold articles were in normal position. Neither the appellant nor his family members were found there. When enquired, the villagers informed that appellant had gone outside his home. Hari Das Singh and Arvind Bhagat, co-villagers of the appellant, had seen smoke coming out of the house in between 2.30 to 3.00 p.m., They rushed there and raised alarm whereupon the villagers assembled there and extinguished the fire. The informant Rengtu Bhagat has alleged that at the time of marriage in the year. 1990, out of the dowry amount of Rs. 6,000/-, he had paid Rs. 27,00/- besides one wrist watch and a golden ring. After one month of the marriage, Hare Ram Bhagat started demanding golden chain and picked up quarrel. He was not keeping his wife properly in his village home and several times he had reached his wife to her parents' home. The informant used to send his daughter to her Sasural after pacifying her, although his daughter was not willing to go to her sasural. The informant has alleged that due to non-fulfillment of the dowry demand, his son-in-law Hare Ram Bhagat in between 12 to 2.00 p.m. murdered Jasoda Bhagat and to screen the evidence, set the house on fire and fled away. On the basis of the aforesaid statement of the informant, recorded on 28.4.1993 at about 7.00 p.m. by the Officer-in-charge, Potka Police Station. FIR (Ext. 3) was drawn up, on which the informant put his LTI and the case was registered.
3. The prosecution has examined altogether nine witnesses to bring home the charges, levelled against the accused/appellant under Sections 304B and 201 of the Indian Penal Code. PW 1 Janardan Singh and PW 2 Arjun Bhagat, both of Village-Basila, when returned their home on 28.4.1993, came to know that the house of Hare Ram Bhagat was burnt in between 2.00 and 2.30 p.m. and the villagers had extinguished the fire. They saw the wife of Hare Ram Bhagat dead due to burn Injury inside the house. PW 3 Yogendra Nath Besra is a witness on the inquest report on which he and Janardan Singh PW 1 have signed-Exts. 1 and 1/a PW 4 Sudeshan Bhagat saw the house of the appellant on fire. The villagers had scaled over the tiles. He saw Jasoda Bhagat, wife of Hare Ram Bhagat, completely burnt. PW 5 Narendra Nath Bhagat is a hostile witness. PW 6 Dr. Akhilesh Kumar Choudhary conducted the post-mortem examination on the dead body of Yasoda Bhagat, PW 8 Sunil Kumar Bhagat is the son of the informant, PW 7. PW 9 Satyendra Prasad is the Investigating Officer of this case.
4. The learned Sessions Judge has come to the conclusion that PWs 1, 4 and 5, no doubt, have stated that the relationship between the deceased and the appellant was cordial but PW 1 and PW 5 are the cousins of the appellant. PW 4 is the wife of PW 5. They have contradicted their earlier statements, made before the police that there was quarrel in between the deceased and the appellant. These witnesses have given a go-by to their earlier statements only to save the accused/appellant. Hence the learned Sessions Judge has disbelieved their statements, deposed in the Court. On the other hand, the learned Sessions Judge has believed the evidence of PW 7 and his son PW 8 Sunil Kumar Bhagat regarding torture to Jasoda Bhagat for demand of dowry, made by this appellant, the evidence of Dr. Akhilesh Kumar Choudhary PW 6. the evidence of the Investigating Officer' PW 9 and came to the conclusion that only for dowry this appellant murdered his wife and to screen from the legal punishment, caused disappearance of the legal evidence by setting his house on fire and fled away, resulting conviction under Section 304B and 201 of the Indian Penal Code and sentencing the appellant thereunder.
5. The appellant has taken the plea that he was not present at his house at the time of the alleged occurrence and he had gone to work at Jadugora. The defence case is simply denial of the allegation that the appellant set fire on his house after causing murder of his wife Jasoda Bhagat. He has pleaded that he is innocent and has been falsely implicated in this case.
6. Learned counsel for the appellant has argued that Jasoda Bhagat committed suicide by burning herself with kerosene oil, resulting her death. The opinion of the doctor PW 6 is contrary to the Modi's Jurisprudence. It was also submitted that there is no eye witness of the alleged occurrence and the prosecution case is based only on circumstantial evidence, which could not be corroborated by any independent, reliable witness of the village. The IO has also not seized any material which he found at the place of occurrence.
7. In the present case, it is evident that this appellant Hare Ram Bhagat was married with Jasoda Bhagat. daughter of the informant Rengtu Bhagat, in the year, 1990. It is also admitted that they have got a child aged about 11 months at the, time when the alleged occurrence took place. It is also a fact that there is no eye witness of the alleged occurrence either of Village-Basila or the village of the informant Kalikapur. The prosecution case is based only on the circumstantial evidence. PW 7 Rengtu Bhagat has alleged in the FIR (Ext. 3) that he could not fulfil the demand of golden chain as demanded by his son-in-law Hare Ram Bhagat and as such, he used to torture Jasoda Bhagat and to drive her out of her matrimonial house. Jasoda Bhagat was not willing to go to her Sasural due to the torture but the informant after some consolation used to send her to her Sasural. Nagendra Nath Bhagat (PW 5) asked the informant to go to his daughter's Sasural immediately. This witness Nagendra Nath Bhagat has been declared hostile by the prosecution. He has deposed that at the time of the alleged occurrence, he was fishing in a nearby tank. On alarm, that the house of Hare Ram Bhagat was burning, he went there and extinguished fire. In course of extinguishing fire, the tiles of the roof was broken. The wife of Hare Ram Bhagat had died due to burning. He went and informed Rengtu Bhagat (PW 7). First of all Haridas Singh (not examined) and Arjun Bhagat (PW-2) saw smoke coming out of the house of Hare Ram Bhagat and rushed there. PW 2 Arjun Bhagat saw the house of Hare Ram Bhagat burnt and his wife had died due to burn injury. Thus, the witnesses of Village-Basila, which is the Sasural of Jasoda Devi,, are not the eye witnesses as to how the house of Hare Ram Bhagat burnt, resulting the death of Jasoda Devi. PW 1 Janardan Singh and PW 4 Sudeshan Bhagat have deposed that at the time when the house of Hare Ram Bhagat was, burning, Hare Ram Bhagat had gone to Jadugora as he works there as a labourer. The witnesses, who are of Village Basila have not supported the case of the prosecution regarding any demand of dowry and torture to Jasoda Bhagat, just before she died, due to burn injury.
8. PW 6 Akhilesh Kumar Choudhary conducted the post-mortem examination on the dead body of deceased, Jasoda Devi on 29.4.1993 at 10.15 a.m. and found the following injuries on her person :--
External:--Average built complexion difficult to opine due to burn, pugilistic attitude of limbs, scalp hairs completely burnt except a tuft of half burnt scalp hairs over the occipital area, tongue protruded and pressed between teeth froth at mouth, kerosene oil smell emitting from dead body. Deep burn up to muscles over whole of back of trunk, buttocks, deep burn up to muscles of both upper limbs and up to bones, of left hand. Deep burn up to muscles of genetaria and both lower limbs and pelvic abdomen including soles of feet. Deep burn up to the bones of left forefoot. Superficial burn of whole of front of trunk except lower third of pelvic abdomen. Superficial burn over face and neck with reddish underlying tissues were seen above umbilicus and over upper limbs. Burn involving whole body. Percentage of burn-100%. Airway congested and containing carbon soots.
This witness has opined that the burn is ante-mortem in nature and death is due to shock of burn, within 18 to 24 hours from the time of post-mortem examination. Ext. 2 is the post-mortem Report, prepared by this witness (PW 6).
9. PW 9 Satyendra Prasad, IO of this case, had recorded the statement (Ext. 3) of the informant, prepared inquest report (Ext. 4) and also recorded the statement of Nagendra Bhagat, Sushila Bhagat, Arjun Bhagat, Sudehsna Bhagat, Shabitri Bhagat, Janardan Singh, Sukhdeo Singh and Shaktipado Bhagat. Nagendra Bhagat (PW 5) has stated that Hare Ram Bhagat always used to quarrel with his wife Jasoda and drive her out of her matrimonial home. Jasoda Bhagat also used to flee away from her Sasural. Janardan Paswan SI, who has also investigated this case, has not been examined by the prosecution. This witness received post-mortem Report by post and thereafter, submitted against this appellant.
10. PW 7 Rengtu Bhagat and his son Sunil Kumar Bhagat deposed that the golden chain, demanded by Hare Ram Bhagat, could not be provided to him. Moreover, out of Rs. 6,000/-, as agreed to be paid to Hare Ram Bhagat at the time of marriage, only. Rs. 2,700/- was paid and balance amount of Rs. 3,300/- was still to be paid to the appellant. The appellant used to demand that amount and when it was not fulfilled, then he used to torture Jasoda Bhagat by beating her and used to reach her to her parents' home. The village Basila is at a distance of 3 1/2 Km. away from the home of the informant and his son (Kalikapur). Whenever Jasoda Bhagat had gone to the house of the informant on being assaulted by this appellant, she used to narrate the torture and assault to her only for non-fulfillment of dowry demand.
11. Learned counsel for the appellant has submitted that the interested witnesses i.e. PWs 7 and 8, who are father and son, have alleged regarding torture and demand of dowry which could not be corroborated by any other independent and reliable witness of the village.
12. Learned counsel for the appellant has submitted that the report of the doctor PW 6 Akhilesh Kumar Choudhary, who conducted the autopsy and found injuries are contrary to the Modi's Jurisprudence. The doctor, who conducted ;the post-mortem examination, found airway congested with carbon soots. This suggests that at the time of, burning Jasoda Bhagat was alive and she as such initialled carbon air, which was due to burn. The doctor also found tongue protruded and pressed between the teeth. Froth at mouth and smell of kerosene oil was found on the dead body. The IO who prepared inquest report (Ext. 4) found 5 Lts. container of Kerosene oil at the spot. The hostile witness PW 1 Janardan Singh of Village Basila in his cross-examination has deposed that Hare Ram Bhagat was not present in his house rather he had gone to work as a labourer. On that day in his house his wife Jasoda Bhagat and small child were present. The learned APP submitted that due to non-fulfilment of dowry demand, the appellant Hare Ram Bhagat caused her murder by setting her on fire after sprinkling kerosene oil and thereafter, left the house.
13. In view of the above considered facts, I am of the opinion that it was not an accidental death. The doctor found 100 percent burn injury on the person of deceased Jasoda Bhagat. Smell of kerosene oil was also coming out of the dead body and all burn injuries were ante-mortem in nature. Airways was found congested containing carbon soots. This shows that while she was tossing and tumbling about due to burning, her tongue protruded and pressed in between the teeth. Froth was also seen in her mouth. The plea taken by the defence that Jasoda Bhagat committed suicide gets corroborated by the evidence of the Investigating Officer. In this present case I find that the witnesses, who are of Village Basila have deposed that Hare Ram Bhagat was not present in his house when his house was burning. PW 1 Janardan Singh has deposed that Jasoda Bhagat was with her child in the house. The witnesses have deposed that tiles of the roof got broken in course of extinguishing fire. It seems that Jasoda Bhagat closed the door from inside, sprinkled kerosene oil on her body and set her on fire, leaving 5 Lts. Container of kerosene oil by her side. When the witnesses went there, they saw the house burning which was extinguished and later on they found Jasoda Bhagat dead due to burn injury. She was completely burnt up to third degree and hence it was very difficult for the doctor to opine the colour of the burn injuries.
14. Learned counsel for the appellant has submitted that circumstantial evidence requires the prosecution to prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused to exclude every other hypothesis and unequivocally point to the guilt of the accused and has relied upon a case, reported in (2000) 1 SCC 225 : 2000 (1) East Cr C 141 (SC), (C.K. Raveendran v. State of Kerala).
15. Having dealt with the evidence of the witnesses, I find that except the inter-esled witnesses i.e. PWs 7 and 8. who are father and son, none of the other witnesses has supported the case regarding demand of dowry and torture done by this appellantto his wife Jasoda Bhagat. There is also noeye witness as to who set fire in the houseof Hare Ram Bhagat in which JasodaBhagat was sleeping, who died due to burninjury. The prosecution case hinges as towhether it was homicidal or suicidal as caseof accidental burning is ruled out.
16. The genesis of the alleged occurrence is regarding demand of dowry and when it was not fulfilled, appellant used to torture the deceased.. No witness of Village-Basila have supported the case of torture for demand of dowry by this appellant Hare Ram Bhagat. PW 1 Janardan Singh, PW 4 Sudeshan Bhagat and PW 5 Nagendra Nath Bhagat have deposed that there was cordial relationship in between the appellant Hare Ram Bhagat and his wife Jasoda Bhagat; PW 7, who is father of the deceased and informant in this case, has neither informed the village Chaukidar nor reported the matter to the police regarding demand of dowry. On the other hand, no one of village-Basila informed him (the informant) as to how the house of Hare Ram Bhagat caught fire, resulting the death of Jasoda Bhagat, who was inside the room. PW 9 Satyendra Prasad, IO, has deposed that Narendra Nath Bhagat had stated before him that due to family quarrel with her husband, Jasoda Bhagat fled away from her Sasural and had gone to her parent's house. Nagendra Nath Bhagat PW 5 had not mentioned as to when there was some difference in between Hare Ram Bhagat and his wife Jasoda Bhagat. Thus, the genesis regarding torture due to non-fulfilment of balance cash amount of Rs. 33,00/- and golden chain, could not be proved by the prosecution. On the other hand, it is very Clear that there was cordial relationship in between Hare Ram Bhagat and his wife Jasoda Bhagat.
17. At the time of the alleged occurrence in between 2.00 p.m. to 4.00 p.m. appellant Hare Ram Bhagat was hot present at the place of occurrence. The villagers-Haridas Singh and Arjun Bhagat saw smoke coming out of the house of the appellant in between 2.30 and 3.00 p.m. They rushed there and, extinguished fire. They did not find either Hare Ram Bhagat or his mother at the place of occurrence. The appellant had, taken plea that he had gone to Jadugora as he works there under a contractor as labourer. He came home after the alleged occurrence, PW 5 Nagendra Nath Bhagat was sent to inform the parents of the deceased. He had gone there and informed PW 7 Rengtu Bhagat to go to the Sasural of Jasoda Bhagat immediately. He had not informed as to why Jasoda Bhagat sustained burn injuries and died. PW 8 Sunil Kumar Bhagat is the son of PW 7. He is also not the eye witness and has deposed, as his father PW 7 has deposed.
18. As there is no eye witness of the alleged occurrence, the. witnesses of Village-Basila have deposed that in between 2.00 p.m. to 3.00 p.m. appellant was, not present in his house. When PW 2 and another villager Haridas Singh rushed to the house of the appellant, they found the door closed from inside. The villagers climbed on the roof, removed the tiles, entered into the room and opened the door, which was locked from inside. PW 9 Satyendra Prasad (JO) recorded the statement (Ext. 3) of the informant and prepared inquest report (Ext. 4) of the dead body of deceased Jasoda Bhagat On. perusal of the inquest report (Ext. 4) it is clear that the IO found half burnt woods, tiles fallen, half burnt paddy crops and one 5 Lts. Container of Kerosene oil by the side of. the dead body of Jasoda Bhagat. As at the time of the alleged occurrence, no one was present at the place of occurrence, Jasoda, Bhagat. closed the door from inside, poured kerosene oil on her person and set her on fire. When the villagers Haridas Singh and Arjun Bhagat saw smoke coming out of the house of the appellant, they rushed there and extinguished fire and in course of extinguishing fire, tiles were broken. Thus, the evidence of the witnesses indicate that Jasoda Bhagat committed suicide by pouring kerosene oil and setting her on fire, after closing the door from inside. As there is no eye witness of the alleged occurrence, the prosecution has based its evidence only on circumstances. The death of Jasoda Bhagat by burning is not in dispute. The genesis of the alleged occurrence regarding torture for non-fulfilment of dowry demand also could not be proved, as there was cordial relationship in between Jasoda Bhagat and this appellant. At the time of the alleged occurrence, appellant was not present at his home. Had he (the appellant) committed murder of Jasoda Bhagat by setting her on fire and fled away, then he might have been seen by other villagers. The door, bolted from inside, shows that there was none else inside the room except Jasoda , Bhagat, This shows that she committed suicide by setting her on fire, after pouring kerosene oil on her person. The circumstantial evidence could not lead to the, only conclusion that appellant is responsible for setting her wife on fire, resulting her death. The medical evidence of Dr. Akhilesh Kumar Choudhary PW 6 also indicates that while burning, Jasoda Bhagat was alive, resulting inhailing of carbon monoxide, which was in her wind pipe. He also found smell of kerosene oil coming out of the dead body. This rules out the possibility of homicidal death rather the only conclusion is that Jasoda Bhagat committed suicide.
19. In view of these discussed evidences, available on record, I find that the prosecution has failed to prove the charges, levelled against the appellant beyond all shadow of reasonable doubts. Accordingly, the benefit of doubt should be given to the appellant.
20. In the result this appeal is allowed and the judgment and order of conviction and sentence, passed by the learned Court below in Sessions Trial No. 258 of 1993, are hereby set aside. As the appellant is on bail, he is discharged from the liability of the bail bond, furnished by him in Sessions Trial No. 258 of 1993.
Vishnu Deo Narayan, J.
I agree.