Judgment:
R.D. Shukla, J.
1. The appeal is directed against the judgment and order dated 18.8.1986 passed in S.T. No. 58/86 whereby accused appellant have been convicted Under Section 302 I.P.C. for having committed murder of Lalita (wife of appellant No. 1 Lokendrasingh) on 13.12.1985 at about 1.30 p.m. at Indore and sentenced to imprisonment for life each.
2. The undisputed facts of the case are that the accused appellant No. 1 Lokendrasingh was married to Lalita (deceased) on 4..6.1985. Accused appellant No. 2 Bharatsingh is the younger brother of Lokendrasingh; accused appellant No. 3 Rajkumaribai is mother of accused appellant Lokendrasingh and accused appellant No. 4 Kamlabai is sister of accused appellant Lokendrasingh, who was married prior to the marriage of Lokendrasingh and Lalita. Prosecution witnesses Laxmansingh and Shantabai are father and mother of deceased Lalita; Bhavanisingh and Bahadursingh are brothers of Lalita.
3. The prosecution case in brief is that before marriage of Lalita (deceased) with Lokendrasingh, Laxmansingh P.W. 1 gave Rs. 5,000/- in Tilak Ceremony. At the time of marriage he gave dowry of nearly Rs. 60,000/-. Lalita was sent alongwith her husband immediately after marriage. She carne back after a month and disclosed that accused persons are further demanding Rs. 10,000/- in cash as they have taken loan of Rs. 10,000/- from Kamlabai, appellant No. 4. It was informed by her that accused appellant Nos. 1, 2 and 3 are ill-treating her. Laxmansingh met Lokendrasingh and requested not to ill-treat Lalita. It is further alleged that Rajkumaribai, appellant No. 3, mother-in-law of deceased came to the house of the parents of deceased and demanded Rs. 10,000/- but Laxmansingh failed to oblige.
4. On 11.9.1985, accused appellant Lokendrasingh took house on rent and started living in Ambedkar Nagar with Lalita. While living in that house also a demand of Rs. 10,000/- was made. As such, Lalita complained this fact to her father. Accused persons tried to take away the ornaments but Lalita refused. It is also alleged that Rajkumari used to beat her on the pretext that she is under the spell of Goddess.
5. Nearly three days prior to the incident, Lokendrasingh shifted to another house in Kailash Park Colony with Lalita. While residing in that house, Bahadursingh met her (Lalita) where she raised an apprehension that accused persons may kill her in that lonely place and further requested for getting a room near their own house (i.e. parental house). Nearly three days prior to the incident Lokendra with Lalita shifted to K.P. Colony.
6. It is alleged that on the date of incident i.e., 13.12.1985, all the accused persons assembled in the room of Lokendrasingh. They gave beatings to Lalita, she jumped out of the house by crossing the wall of courtyard but Lokendrasingh dragged her inside the house and gave kick and fist blows. Thereafter, they poured kerosene oil and set her to fire. Nobody tried to save her and she succumbed to burn injuries on the spot.
7. Lokendrasingh, accused appellant No. 1 informed the Police at about 3.45 p.m. and on that basis merg was recorded and offence Under Section 306 I.P.C. was registered wide P/18-A. The same was recorded by Head Contable Dayashankar. The same was proved by P.W. 18 K.K. Tiwari, A.S.I., as Dayashankar had gone on training and was not available. Shri Tiwari visited the spot; issued notice vide P/9 and prepared inquest report P/10 and site map P/11. A letter of request was sent for P.M. examination. Autopsy on the body of Lalita was conducted by Dr. Riyas Hussain P.W. 3 with Dr. R. Choudhary, C.M.O. The body was identified by accused Lokendrasingh and Bhawanisingh, brother of deceased. The Doctor found mouth half opened with tongue (1' x 2') protruding out and caught between the teeth. No clothes were present on the body. Scalp hairs were partially seized. Eye brows and eye lashes were completely burnt. The body was blackened at places. No injuries were present. It was a case of 100% burn. Percentage of burn was as under :
1. Face and neck 9%2. Front of chest & abdomen 18%3. Back of chest and abdomen 18%4. Rt. upper limb 9%5. Lt. upper limb 9%6. Rt. lower limb 9%7. Lt. lower limb 18%8. Perineum 1%100%
On internal examination thorax was found conjested. Trachea and bigger bronchii contained black soot congested mucous membrance with lungs was conjested, pinkish blood on cutting. Uterus enlarged about 16 to 20 weeks size of pregnancy and on cutting it was found containing a dead male foetus aged about 16-20 weeks size of intrauterine life weighing 225 gms and its length was 16 cm. Dr. Riyaz Hussain prepared report Ex. P/7. Lalita died due to shock due to 100% burns and asphyxia due to inhalation of gases of combustion. Two ear rings, one finger ring with read stone and four bichua from both foot were taken out and handed over to the Police in a sealed pack. Viscera was preserved for chemical analysis.
8. Laxmansingh P.W. 1 made a report on 14.12.1985 vide P/1 and alleged that there was a demand of dowry of Rs. 10,000/- which allegedly was spent by accused appellant Nos. 1 to 3 after taking loan from accused appellant No. 4, during marriage. The fact of earlier cruelty and suspicious death and murder having been committed by the accused appellants was alleged. P.W. 19 Jitendra Dwivedi received the report and subsequently registered an offence Under Section 306 I.P.C. at Crime No. 359/85 vide P/3. P.W. 2 Rajendraprasad Dube was interrogated and he claimed to have seen a woman crossing the wall of the courtyard and dragging by two persons and thereafter about gaining knowledge of death by burning. During investigation, identification vide Ex. P/5 was conducted. He identified Lokendrasingh and Bharatsingh. The clothes of the deceased were also seized during investigation and the same were sent for forensic examination. Report Ex. P/16 prepared by Shri Shrivastava was obtained from F.S.L. Sagar and produced in the Court, that shows that the kerosene oil was present on the clothes and the gunny pieces.
9. The viscera preserved by the Doctor was also sent for chemical examination to the F.S.L. Sagar. Report Ex. P/17 shows that no chemical poison could be detected in articles A/1, A/2 and A/3 i.e. pieces of viscera sample and blood sample.
10. After investigation challan against all the accused persons was filed.
11. Learned Trial Judge framed charge Under Section 302 and alternatively Under Section 306 I.P.C. Accused persons denied the guilt and pleaded false implication. Lokendrasingh has pleaded that deceased was insisting for going to her mother's house. As accused was required to go on duty, he asked to leave her in the evening, this annoyed the deceased, she closed the door from inside and after sometime detected smokes and flames. He tried to save her by putting blanket. He informed the Police by phone as the door was closed from inside, he did not enter the house. Accused appellant Bharatsingh pleaded that he is working as Taxi Driver. He had gone to Pithampur and came in the evening and received information about the death by burning of his sister-in-law (Bhabi). Accused appellant Rajkumari, mother-in-law has also denied the guilt and pleaded that she was living separately with her husband and went to the house (place of incident) after receiving information of burn injuries having been sustained by Lalita. Kamlabai also abjured the guilt and pleaded that she resides much away. They received information about the death and sent to Kailash Park Colony at about 3.30 p.m. and found the father and brother of the deceased present in the house.
Accused appellants have examined D.W. 1 Leelabai to prove the cordial relations. They also examined D.W. 2 Annapurnadevi D.W. 3 Revashankar, D.W. 4 Pyarelal, D.W. 5 Kishorelal for rebutting the contention of the prosecution.
12. Learned Trial Judge did not pronounce judgment regarding offence Under Section 306 I.P.C. but convicted the accused persons Under Section 302 I.P.C. and sentenced them as above. Hence this appeal.
13. Contention of learned Counsel for appellants is that the alleged eye witness Rajendrakumar Dube did not disclose the fact for 4-5 days as he as examined by the Police, after five days. He is a got up witness. Learned Counsel for appellants has further submitted that the father and brother of deceased namely Laxmansingh and Bahadursingh were present from the very beginning i.e. at the time of preparation of site map and inquest report but they did not disclose about the demand of dowry and the cruelty committed by the accused persons. Third contention of the learned Counsel for appellants is that report Ex. P/l was lodged on the next day after due deliberation and consultation. As such, the same cannot be used for corroboration of the statements of Laxmansingh. It has also been submitted that medical opinion confirms that fact of suicide and as cruelty was found not proved and, therefore, the same cannot be accepted for purpose of proving motive for murder.
14. As against it, learned Counsel for State has submitted that eye witness Rajendraprasad Dube has no axe to grind and, therefore, he has rightly been believed. It has also been submitted that accused Lokendrasingh has shifted to Kailash Park Colony just 3 days prior to the incident. This is a suspicious circumstance and is an important chain of circumstances.
15. We were taken to the evidence on record. We have perused the same. P.W. 2 Rajendraprasad Dube claims to be an eye witness to the extent that he after hearing the scream of girl caught by few male persons and 2-3 women, he saw one woman jumping out of the wall of the courtyard. After she had jumped out, two women, one old and one young were peeping outside. Thereafter one young person, tall in size, come out and dragged that girl who beseeched that he should leave her as he is likely to beat her but that young person dragged her inside the house, threw in the room and put her both the knees on her chest. The other woman younger in age caught hold the hairs of the woman who was lying on the ground and other old woman and young person began to beat her. He wanted to raise alarm but nobody was visible. Thereafter, those persons closed the door from inside. He waited for some time. When sound stopped coming from inside, he left the place taking it to be a family dispute. After he reached the house, he heard the alarm raised by persons that one woman had died of burns. He has also stated that the four persons whom he has seen earlier were present there but none of them tried to save that woman whose clothes were burning. He has further stated that the identity of these accused persons was disclosed to him by some persons from the crowd. He identified all the four accused person in the Court. He has further stated in para 3 of his statement that one Police Constable came to him after 4-5 days. He disclosed the incident. He has also stated that he identified Rajkumaribai and Kamlabai in between 5-7 other women and identified two other accused persons Lokendrasingh and Bharatsingh in Central Jail in between 20-25 persons. Document D/3 Police statement of this witness also goes to show that Jitendra Dwivedi P.W. 19 Town Inspector recorded his statement on 18.12.1985. Thus it is clear that this witness kept mum on 13th, 14th, 15th, 16th and 17th and disclosed the incident claiming himself to be an eye witness on 18th.
16. Before appreciating the evidence of this witness, we would like to examine the medical evidence in the case to find out as to whether death was homicidal or suicidal. Dr. Riyaz Hussain has admitted in para 14 of his statement during cross-examination that except burn injuries no external injury was found on the body. He has denied the suggestion of throttling. He has stated in para 5 of his statement that burns were ante mortem and could have been caused by dry heat just before death. This from the evidence of Dr. Riyaz Hussain, it is clear that though the burn marks on the body of Lalita were ante mortem but the same cannot be said to be homicidal. No homicidal injuries were found on her body. Death may have been suicidal, which shall be discussed later on.
17. If P.W. 2 Rajendraprasad is believed on the fact of Lalita jumping out of the wall of courtyard, about being dragged, then about the fact of causing pressure on the chest through both the knees by Lokendrasingh and about the fact of causing injury by Rajkumaribai and Bharatsingh, this must have resulted in some injuries including damage to the ribs. Tongue was found protruding to the size of 1' x 1/2' and caught between teeth, that may be because of inhaling the smoke as well.
18. Thus in this case, the fact of homicidal death itself has not been proved by the prosecution.
19. If the statement of Rajendraprasad Dubey is examined in this background, we find that there is absolutely no corroboration from medical evidence of this witness. Had the injuries been caused by accused persons or any of them before setting her to fire, some mark of injury must have been found. Had the force been used at the neck, it must have caused some marks and on causing of such pressure on the neck or during throttling, deceased Lalita must have raised alarm which could be heard by the persons in the vicinity. The conduct of Rajendraprasad appears to be suspicious. After knowing the fact of injury having been caused to a young lady and including the fact of sustaining burn injuries, he did not inform the fact to Police. This conduct of the witness goes against the reliability of the evidence of this witness. This may be observed here that if a person witnesses a ghastly crime being committed and does not inform the Police or authorities and fails to raise even an alarm may not be taken to be an accomplice; but his statement would require a strong corroboration before the same is accepted and acted upon. The best corroboration could be from the medical evidence but that is lacking as no homicidal external and internal injuries were found on the body of Lalita.
20. A suggestion has been thrown that he is a relation of Bhawanisingh which had been denied by this witness in para 24 of his statement. A similar suggestion was thrown to Bhavanisingh P.W. 4, which he has denied. A suggestion given to P.W. 6 Shakuntalabai is also denied by her in para 11 of the statement. Even if this fact of relation is not accepted, the very fact that this witness kept mum for 5 days makes version given by him doubtful. If a Police Officer records the statement of eye witness during investigation of murder case after long delay and if the delay is not explained, his evidence would become unreliable. Reference may be had to a decision of the Supreme Court reported in Balakrushna v. State of Orisa (AIR 1971 SC 804), wherein their Lordships of the Supreme Court have observed as under:
'Unjustified and unexplained long delay on part of Investigating Officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable.'
Reference may further be had to a decision in G.B. Patel v. State of Mah. (AIR 1979 SC 135), wherein it is observed as under :
'Delay of few hours, simplicitor, in recording the statements of eye witness may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the Investigator was deliberately making time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus under the facts and circumstances of the case, delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.
Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses.'
The P.M. report does indicate commission of suicide and, therefore, it is required to be examined as to whether there was a cruelty practicised by these accused persons.
21. The examination of document Ex. P/6 would reveal that Rajendra Prasad Dube was present at the time of preparation of spot map by Patwari on 13.12.1985. It is difficult to understand if this witness knew about the incident and prosecution came to know about the fact that he is an eye witness of the incident why his testimony was not tested by getting it verified by taking him on the spot and by getting the Naksha prepared by Patwari immediately after discovery of this eye witness. Laxmansingh has made a. report P/l on 14.12.1985 and has tried to explain the delay on the ground that the Police Officer refused to take the oral report but this fact of refusal of taking oral report is denied by Jitendra Dwivedi. Document P/10, the inquest report shows that Bahadursing P.W. 8 the brother of deceased was present at the time of preparation of inquest report. Thus they knew the whole incident but despite that they did not report the matter to the Police disclosing their apprehension of murder. P.W. 4 Bhawanisingh, brother of deceased has accepted in para 7 of his statement that there was consultation and conference during the night and thereafter report Ex. P/1 was made on 14.12.1985. This goes to show that there has been some padding in the story disclosed vide P/1 and P/3. Therefore, this document P/1 & 3 cannot be taken to be sufficient for corroboration of the fact of murder. The circumstantial evidence adduced against the accused persons though creates a doubt and the suspicion; but suspicion however strong cannot form basis for the conviction of murder. But facts regarding cruelty and demand of dowry do stand corroborated from these documents which shall be dealt with in later paragraphs.
22. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:--
(a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(b) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) the circumstances should be of a conclusive nature and tendency;
(d) they should exclude every possible hypothesis except the one to be proved; and
(e) there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Even otherwise R.P. Dube is a chance witness and unless his presence as stated by him is proved beyond doubt through corroborating evidence coming from independent source, the same would be highly unsafe to act upon. Reference may be had to a decision reported in AIR 1976 SC 2032. The circumstantial evidence do raise a strong suspicion as indicated above but the same cannot be accepted to be sufficient for warranting conviction for murder.
23. In our considered opinion, therefore R.P. Dube is not reliable witness on the basis of whose statement the conviction cannot be sustained. Circumstantial evidence against the accused persons does not justify the commission of murder of Lalita and their participation in the same.
24. Now next point that arise for determination in the case is as to whether there was demand of dowry and cruel treatment to Lalita which resulted in the commission of suicide.
25. The fact of suicide has not only been not challenged by the accused persons but the same has been admitted by Lokendrasingh on his statement Under Section 313 I.P.C. Though it is also true that the admission of accused person in Statement Under Section 313 in itself would not be sufficient for warranting conviction and, therefore, the prosecution evidence will have to be examined to find as to whether it was suicide and further whether it was because of cruel treatment met by the deceased.
26. Learned Sessions Judge in Para 44 has summarised the circumstances appearing against the accused persons. Out of the conditions shown therein, condition Nos. 1, 3 and 4 appear to be correct and we find nothing to disagree from those points, i.e. Lokendrasingh was married to Lalita on 4.6.1985 and thereafter Lalita was found dead because of burn injuries on 13.12.1985. Rs. 10,000/- was taken as loan from Kamlabai, accused appellant No. 4. She was demanding it back. For this reason Lalita was being pressurised for bringing the money from her parental house. Lalita refused to give her ornaments for repayment of this loan and that she was treated cruelly during her residence in the in-law's house. Lokendrasingh shifted to Kailash Park Colony, a lonely place nearly 3 days prior to the incident. About the fact of marriage, and death, there is not dispute.
27. P.Ws. 1 Laxmansingh, 4 Bhawanisingh, 6 Shakuntalabai, 8 Bahadursingh have stated that they spent nearly Rs. 60,000/- in the marriage of Lalita. They paid Rs. 5,000/- initially and about 30-31 thousand including the price of various articles during marriage. Looking to the status of these witnesses and the accused persons and the custom prevalent in the Hindu Society, the payment of that much amount of dowry appears to be natural and correct.
28. It has been tried to be argued that the fact of demand of dowry was not disclosed to the other relations and the Police Officers earlier and, therefore, the same cannot be accepted. We do not agree with this contention as persons specially persons related to the bride try to suppress such things so that no obstruction is put in the performance of the marriage and in conjugal relations and, therefore, non-disclosure of this fact earlier to the incident cannot be taken to be fatal for the proof of the fact of demand of dowry.
29. All these three witnesses have stated that after coming from the house of in-laws, Lalita complained that they are demanding Rs. 10,000/- to pay off the debt which they incurred during marriage. Learned Counsel has tried to assail this fact on the ground that this demand was also not disclosed to the other relations and the Police at the earlier stage. As observed in earlier paragraph, near relations of the bride are more interested in the conjugal harmony rather than in taking legal recourse to the misdeeds or illegal demand of dowry. P.W. 12 Suresh has also stated about the demand of Rs. 10,000/- by accused persons and the narration of this fact by Lalita. He is an independent witness. There is nothing to disbelieve his evidence on this count. This witness has also stated about the demand of Rs. 10,000/- by Rajkumaribai, mother-in-law of deceased (Lalita). This witness has no axe to grind against Rajkumaribai and others and therefore, he has no reason to unnecessarily make statement against them. Thus from the evidence of the prosecution witness referred above, it is proved beyond reasonable doubt that the in-laws of Lalita including her husband Lokendrasingh demanded Rs. 10,000/- from the parents of Lalita and they further pursuaded and pressurised her to bring that money.
30. P.W. 7 Leeladhar Sonkar had taken the photographs of the house where the incident of burning has taken place. The same is situate in Kailash Park Colony. This fact has not been denied by Lokendrasingh who was residing alone with his wife Lalita in Kailash Park Colony. He has gone nearly three days prior to the date of incident to the house. P.W. 4 Bhavanisingh stated that accused began to reside in Kailash Park Colony from 10.12.1985. He has stated about the incomplete condition of the house. The accused came to reside alongwith Lalita in this house after leaving house in Ambedkar Nagar. This fact has not been denied and has been admitted by Lokendrasingh.
31. P.W. 13 Tanveer has also stated that Lokendrasingh is a co-worker in the MP.S.R.T.C. and Bhawanisingh is also his friend. He corroborates the story disclosed by Bhawanisingh that they spent nearly 50-60 thousand in marriage. He has stated that mother of Lokendrasingh asked for Rs. 10,000/- in his presence and was quarrelling with Lalita for bringing the same. He has also stated that on 23.11.1985, he went to the parental house of Lalita where he was told that accused Lokendrasingh is residing in Ambedkar Nagar. He went to that place also and found Lokendrasingh quarrelling with his wife about return of Rs. 10,000/-which they had taken as loan from appellant No. 4. He has further stated that Lokendrasingh demanded ornaments from Lalita which she refused. Tanveer appears to be an independent witness. He has no axe to grind against any of the accused persons. Thus from the evidence of this witness also it is proved that accused persons including Lokendrasingh were putting pressure on Lalita for bringing Rs. 10,000/- from her parental house and that she was being treated cruelly for the purpose.
32. This has also been proved that nearly three days prior to the incident accused changed the earlier residence and went to the house in Kailash Park Colony. The house was not in good condition and was incomplete. It is in this house that Lalita committed suicide. At that time, Lalita was carrying pregnancy of 16-18 weeks as revealed in P.M. examination. Changing the house from Ambedkar Nagar to Kailash Park Colony in such a condition when Lalita was carrying pregnancy and asking her to reside in such an incomplete house also must have caused agony. In our considered opinion, therefore, the fact of demand of dowry of Rs. 10,000/-in cash for repayment of the loan; demand of ornaments from Lalita for repaying the alleged loan of Rs. 10,000/- and ill treatment format purpose by Lokendrasingh and other members of the family is proved beyond reasonable doubt and, we are in agreement with the finding of learned Sessions Judge on this point.
33. It is not in dispute that Lokendrasingh alone was living with his wife and the suicide was committed by Lalita while residing as such. It appears, there has been some exchange of hot words between Lokendrasingh and Lalita and thereafter Lalita closed the door and committed suicide by pouring kerosene and setting herself to fire (this fact of closing the door and setting herself to fire immediately after going out of the house of Lokendrasingh has been admitted by Lokendrasingh). There is no other independent evidence to show that other accused persons were present in Kailash Park Colony, the place of incident, immediately before the commission of suicide by Lalita.
34. The relation of other accused persons with the immediate and proximate cause of suicide is not established beyond reasonable doubt but there is no manner of doubt that Lokendrasingh was present immediately prior to the commission of suicide. There was a continuous ill treatment of Lalita, it must have caused shock and mental agony to her. There has been occassional, manhandling to Lalita by Rajkumaribai, her mother-in-law, and Lokendrasingh, her husband. There must have been some altercation immediately prior to the incident of suicide but that evidence is not known as the same must have been between Lokendrasingh and Lalita and as the chief witness Lalita died immediately and, therefore, the evidence of fact of immediate altercation could not be collected. However, the fact of cruelty and the cruel treatment is proved beyond reasonable doubt. We are therefore, convinced that Lalita committed suicide because of cruelty meted to her.
35. Section 304B of I.P.C. has been added by an amendment by Act No. 43 of 1986 and it is made applicable w.e.f. 18.11.1985, that was subsequent to this incident. Similarly Section 113B of Evidence Act has been made applicable w.e.f. 19.11.1986. But Section 113A has been inserted by Act No. 46 of 1983 w.e.f. 25.12.1983. Thus Section 113A was in force at that time and, therefore, the presumption as to the abetment of suicide by married woman would be applicable in this case, which reads as under:--
113-A. Presumption as to abetment of suicide by a married woman.--When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of 7 years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Section 498A of I.P.C. deals with the cruelty, the same came into force w.e.f. 25.12.1.983. Cruelty has been defined in following words :
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
The provisions of Section 113A of Evidence Act and Section 498A I.P.C. are clearly attracted in this case.
36. The defence has examined D.W. 1 Leelabai to show the cordial relations between Lokendrashingh and deceased but she herself has admitted that she was not present on the date of incident in her house between 12 to 3.30 noon. Thus this goes to show that probably she wanted to avoid answers regarding the events leading to immediate and proximate cause of burning (suicide). However, this witness also admitted that Lokendrasingh came to reside in that house on 10.12.1985 and this incident happened immediately after three days. D.W. 3 Rewashankar is evidence of negative fact. Again D.W. 2 Annapurnadevi is also a witness of negative fact.
37. D.W. 4 Pyarelal has tried to state that he was coming after supplying the cylinder in Gwal Toli. He heard alarm raised by inhabitants that there was some fire. Meanwhile Lokendrasingh came from opposite direction and stated that his house has caught fire, he should inform his brother-in-law. He went to Kalyan Bhavan and informed the fact to the brother-in-law of accused Lokendrasingh. During cross-examination, he has admitted that he does not know where Lokendrasingh was residing at the time of incident. He has denied the fact of burn injuries to Lokendrasingh. It is surprising that the person helping the accused in such a way would not try to find out as to how and where the fire broke out. He appears to be a got up witness and has rightly been disbelieved. D.W. 5 Kishorelal has stated that Lokendrasingh has taken one of his house on rent and came to reside there on 10.12.1985. He has tried to confirm the cordial relation between Lokendrasingh and his wife. But he was not present in his house at the time of incident. He came to know about the fact subsequently. He found Lalita dead inside the house. He thereafter went to the house of mother of Lokendrasingh for informing her about the incident. This he did at the instance of Lokendrasingh. He called Mammu Pehalwan who appears to be the maternal uncle of accused Lokendrasingh at the instance of accused Lokendrasingh. He also speaks about the threats having been caused by Bhawanisingh. During cross-examination he has admitted the fact that the door was bolted from inside the room where Lalita was found dead. It appears this witness states in favour of the accused under some pressure but the fact of Lalita having died because of suicide has been indirectly admitted by this witness also.
37. D.W. 6 Smt. Nirmala Vyas has stated that accused came to her house and wanted to contact persons by telephone, which she permitted, as such accused contacted persons on telephone. She did not support certain facts asserted by the accused persons and therefore, she was tried to be declared hostile. She has denied the fact of blanket having been asked by the accused for putting it on the body of Lalita. This fact of putting the blanket on the body of Lalita has been stated by accused in the defence and has been suggested during cross-examination of prosecution witnesses. That fact stands falsified from the statement of Smt. Nirmala Vyas. This fact of putting blanket on the body of Lalita was being tried to be brought to show the bonafide of accused Lokendrasingh but that stands disproved from the statement of Nirmala Vyas.
38. In our opinion, therefore, as the defence does not help the accused in any way as regards to the fact of cruelty having been practised on Lalita, suicidal death of Lalita and the abetment caused by this accused for the suicide.
39. In our opinion, therefore, as there was illegal demand including demand of dowry and cash of Rs. 10,000/-, there was harassment for the same including manhandling. Lokendrasingh demanded ornaments of Lalita for repayment of alleged loan of Rs. 10,000/- which though she refused, but it must have had annoyance and amounted to coercion. All this lead to the commission of suicide of Lalita and, therefore, it will be deemed that Lokendrasingh abetted the commission of suicide.
40. Learned Sessions Judge has framed alternative charge in this case and had convicted the accused Under Section 302 I.P.C. without pronouncing any judgment for the offence Under Section 306 I.P.C.
41. Learned Counsel for appellant has submitted that since there was no conviction Under Section 306 I.P.C. and, therefore, it would be deemed that accused persons have been acquitted for that offence and as there is no appeal by the State Govt. against accused persons or any of them as such they cannot be punished for offence Under Section 306 I.P.C. We do not agree with this contention of the learned Counsel for appellant as State has procured conviction Under Section 302 I.P.C. and, therefore, there was no need for filing appeal for alleged deemed acquittal Under Section 306 I.P.C. Even otherwise a person charged of a major offence can always be punished for the minor offence. A person charged Under Section 302 I.P.C. can admittedly be convicted Under Section 411 I.P.C. Learned Counsel for appellants has further submitted that the nature of the offence Under Sections 302 and 306 I.P.C. is different and almost contradictory and, therefore, a person who has been convicted Under Section 302 I.P.C. cannot be convicted Under Section 306 I.P.C. after acquittal for the offence Under Section 302 I.P.C. This is a case of alternate charge. There was no occasion for pronouncing judgment Under Section 306 I.P.C. as learned Sessions Judge has convicted them Under Section 302 I.P.C.
42. As observed earlier, the nature of offence Under Sections 302 I.P.C. and 411 is different but as admitted by learned Counsel for defence also the person charged Under Section 302 I.P.C. can be convicted Under Section 411 I.P.C. and, therefore, despite the fact of nature of charge being different as offence Under Section 306 I.P.C. is minor as compared to Section 302 I.P.C., a person charged Under Section 302 I.P.C. can be convicted Under Section 306 I.P.C., if the offence of murder is not found proved and the latter offence of abetment of suicide is found proved. Section 221 Cr.P.C. provides that where series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences; Section 221(2) further provides that in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under provisions of Sub-sec. (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
43. On the same anology, a person charged Under Section 302 I.P.C. can be convicted Under Section 302 I.P.C. and Under Section 411 I.P.C. as referred above and, therefore, if the offence of murder is not found proved in such a case of alternative charges, a person can be convicted Under Section 306 I.P.C. if the same is found proved.
44. Learned Counsel for appellants has referred a case reported in A.I.R. 1928 P.C. 254 and submitted that because of the deemed acquittal Under Section 306 I.P.C., the accused persons or any of them cannot be convicted Under Section 306 I.P.C. i.e. for abetment of commission of suicide. Since in this case there was alternative charge and there was no pronouncement of judgment Under Section 306 I.P.C. and the person was convicted Under Section 302 I.P.C. as such offence Under Section 306 I.P.C. being minor, the accused persons or any of the accused who is found guilty can be punished for the same.
45. As a result, the appeal filed by appellant Nos. 2, 3 and 4 is accepted wholly. They are given reasonable benefit of doubt and are acquitted of all charges. Appeal filed by accused appellant Lokendrasingh is partly accepted. He is acquitted of the offence punishable Under Section 302 I.P.C. but he is convicted Under Section 306 I.P.C. and is sentenced to R.I. for five years. Accused appellants Nos. 2, 3 and 4 are on bail and, therefore, bail bonds of these accused shall stand discharged. Accused appellant No. 1 Lokendrasingh is directed to surrender to bail for undergoing sentence. He shall appear before the C.J.M. Accused has been given direction to appear before this Court on 22.7.1995 for his appearance before this Court, he be sent to C.J.M. Indore, if required under custody, who shall execute the warrant of sentence.