Sharma, J.
1. Whoever saw her shedding tears, whoever heard her sighs, a grief-struck young lady Smt. Rakesh lost her life on a fateful day of October 2, 1992. According to her husband Ramni Singh, she was killed by Nirbhay, Nekram and their companions whereas her father Goliram says that it was a dowry death and Smt. Rakesh was murdered by her husband Ramni Singh and his near relatives. Let us find out the truth.
2. As many as 13 accused persons including the appellants Nirbhay and Nekram were indicted before the learned Additional Sessions judge No. 2 Bharatpur in Sessions Case No. 13 of 1994. Learned Additional Sessions Judge vide judgment dated February 14, 1996 acquitted co-accused Ram Swaroop, Kare, Jagdish Prasad, Chandu, Niranjan, Nemi, Kanchan, Veerpaloa, Hari Ram, Dauli and Kamar Sen. The appellants Nirbhay and Nekram were found guilty, convicted and sentenced as under-
Nirbhay
u/Sec. 302 IPC
Imprisonment for life and fine of Rs. 1000/- (in defaultto further undergo six months H.I.)
u/Sec. 452 IPC
Two Years RI and fine of Rs.500/- (In default to furtherundergo three months R.I.
Nekram
u/Sec. 304/34 IPC
Imprisonment for life and fine of Rs.1000/- (in default tofurther undergo six months R.I.)
u/Sec. 452 IPC
Two Years RI and fine of Rs.500/- (In default to furtherundergo three months R.I.
Against this judgment of conviction that the action for filing the instant appeal has been resorted to by the appellants Nirbhay and Nekram,
3. The short facts leading to the conviction need narration. Ramni submitted a written report (Ex.P. 1) to the S.H.O. Police Station Kumher when he visited the place of occurrence at village Rajoraon Octobers, 1992 at 1.15 a.m.' with the averments that around 5.00 P.m. on October'2, 1992 while he was taking his meal in his house and his brother's wife was making chapaties, the accused appellants alongwith other co-accused persons, equipped with weapons like Farsa, Tanchia, Lathi, Katla etc. entered his house to open assault. They attacked on the informant. The wife of the informant namely Sml. Rakesh (since deceased) in order to save him, intervened in between. The informant in that situation was able to escape but his wife Smt. Rakesh was hacked to death by the accused appellants. On the basis of the said report a case bearing No.364/92 under Sections 147, 148, 149,'323, 302, 452 and 379 IPC was registered and investigation commenced. Panchanama of the dead body of Smt. Rakesh was drawn. Site was inspected, Autopsy of the deadbody of the deceased was conducted by a Medical Board. Statements of the witnesses under Section 161 Cr.P.C. were recorded by the police. Accused appellants were arrested and at their instance Farsa and Tanchia were recovered and sealed. On conclusion of the investigation charge sheet was filed against 13 accused persons including the appellants Nirbhay and Nekram.
4. In due course the case came up for trial before the learned Additional Sessions Judge No.2 Bharatpur. The trial court framed charges under Sections 148, 302, 324, 149, 323/149, 452 and 380/149 IPC against the accused appellants who denied charges and claimed trial. The prosecution examined as many as 20 witnesses, thereafter the explanation of the accused appellants under Section 313 Cr.P.C. was recorded. The accused denied the allegations and pleaded that Goliram, the father of deceased Smt. Rakesh instituted a murder case against Ramni and his relatives for killing Smt. Rakesh and the informant falsely implicated the accused appellants. Five witnesses were examined in defence by the accused appellants. Learned Judge after hearing the final submissions convicted accused appellants Nirbhay and Nekram and acquitted other 11 accused persons as indicated hereinabove.
5. It is well settled that while assessing and evaluating the testimony of eye witnesses the court must adhere to two principles namely whether in the circumstances of the case it was possible for the eye witness to be present at the scene and whether there is anything inherently improbable or unreliable. Credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence in the context of the case.
6. Bearing the above well settled principles in mind, we will now examine the evidence adduced by the prosecution. Informant Ramni Singh (PW. 1) in his deposition stated that in the evening around 5 to 6 p.m. on October 2 1992 he and his nephew Satish were taking meals in his house. His wife Rakesh was serving and his brother's wife Meena was cooking the food. His Bhabhi Ramwati was busy in the house hold work. Suddenly Hari Ram entered his house and inflicted lathi blow on his person, he immediately stood up and saved herself, lathi blow could only hit the ground. Nirbhaya entered the house and gave Farsa blow on the right side of his wife and second farsa blow on the left side of her head. Hari Ram then asked as to how she dared to intervene, inflict more injuries and kill her. Nekram, Who was also entered the house following Nirbhay, inflicted blow with Tanchia on her neck. On hearing hue and cry Ramwati and Meena also came there. After his wife fell clown Nekram inflicted Tanchia blow on her back. Thereafter Veerpal armed with katta, entered the house. Ramwati and Meena persuaded the informant to run and he climbed on staircase, reached at the roof jumped and went to the house of Chhuttan. He had seen Hakim Singh, Nahar Sirigh, Ramesh Kamar Sen, Niranjan, Ram Swaroop, Kare, Chander, Jagdish, Kanchan and Nemi standing at the door of his house. Hakim Singh, Nahar Singh and Ramesh were having Guns in their hands. All the accused persons thereafter came to the house of Chhuttan and asked him to push the informant out but Kama) pacified the accused and they went back without causing harm to anybody. When the informant came back to his house he found his wife dead. To ran thereafter proceeded to inform the police and at about 12 in the night, police reached at their village. He then handed over the written report to the police.
In the cross examination Ramni Singh deposed that in 1984 one Ghantoli was murdered and in that case he, his father Rasal Singh his brother Mahendra Singh alongwith Nirbhay (appellant) were named as accused. He further stated that after her wife made attempt to save him from the attack of the accused, Nirbhay and Nekram inflicted injuries on her person. He deposed that the police recorded his statement on October 7, 1992. He admitted that Kunwar Pal's (DW.2) house was adjacent to his house.
7. Satish (PW.2) is the nephew of Ramni Singh. As he has not named as witness in the FIR , we ignore his testimony. Keran Singh (PW.3) in his deposition stated that 15-16 persons including Nirbhaya and Nekram opened assault at the house of Ramni. Nekram was armed with Tanchia and Nirbhay was having Farsa. When Nekram, Nirbhay, Veerpal and Hari Ram entered in the house of informant, he fled away and came back when police arrived. Meena (PW.4) who is the wife of informant's brother stated that when she was cooking and Ramni was taking food, Hari Ram armed with Lathi, entered their house and inflicted lathi blow on the person of Ramni which slightly hit his shoulder. Rakesh came in front of Ramni in the meanwhile Nirbhay inflicted two blows with Farsa on her head. Hari ram persuaded Nekram to kill Rakesh and Nekram inflicted Tanchia blows on her neck and shoulder when she (Meena) made attempt to intervene Veerpal hit his stomach by his leg and Hariram hit her stomach from the top of the lathi. Veerpal took away her box of ornaments. In her cross examination she stated that till Rakesh sustained four injuries on her person, Ramni was wandering there in the chowk and thereafter fled through staircase. Govind Singh (PW.5) did not see the incident occurred inside the house of Ramni. He only stated that 15-16 persons attacked the house of Rasal Singh and when he prevented them they gave him beating and he became unconscious. Ramwati (PW.6) stated the same version, as was narrated by Meena. Toran (PW. 8) did not see the incident from his eyes. He only stated that when he went to Chhuttan's house he found Ramni there. Then 15-16 persons came to Chhuttan's house but on pursuation of Chhuttan all of them went back. After acquainted with the incident he went to Astawan and got informed police on telephone through Bholaram Meena. In his cross examination he stated that on telephone he intimated the SHO Kumher that Nirbhay and Nekram killed Ramni's wife. Ramveer (PW.9) also did not see the incident from his eyes. He only stated that Rasal Singh's house was attacked.
8. Naseer Khan (PW 13) who was posted as Sub Inspector on October 2, 1992 at Police Station Kumher in his deposition stated that he recorded a telephone call around 11.55 p.m. from village Astawan that one lady was seriously injured in a fight between (he families of Ramni and Ramswaroop. He reached at village Pachora around 1 a.m. on October 3,1992.There Ramni handed overawritten report. He found Ramni at his house. He remained at village Pachora upto 5 a.m. Dr. Roopendra Kurnar Mittal (PW.14) stated that Medical Board was constituted for the autopsy of the deadbody of Smt. Rakesh and he was One of the member of the said board. Rakesh had sustained four grievous injuries on head and the cause of death was coma as a result of injured on head.
According to Post Mortem Report (Ex.P.22) nature of injuries sustained by Smt. Rakesh was as under :-
i) Incised wound 17x2x5 cm. on upper part of mandible to parital eminate of Lt. side with bisection of Pinna.
(ii) Incised wound 8x2x2 cm. on tempo parital region of the Rt. side,
(iii) Stab wound 2x 3/4 x 3 cm. on Rt. side at nape of neck,
(iv) Stab wound 2x l/2x 2 cm. Rt. scapula region.
In the cross examination or. Roopendra Kumar Mittat deposed that injury No.1 could have been caused by a weapon having its cutting blade 17 cms. long. Weapon like Tanchia could not cause stab wounds. After seeing Farsa (Article-1) alleged to have been recovered from the accused, Dr.Miltal deposed that it was in a shape like half moon and depth of the injury caused by it could be uneven whereas depth of the injury No.l sustained by Smt. Rakesh was even from the beginning to the end.
9. Prabhulal (PW.19) who was posted as S.I. and P.S. Kumher, had gone with Naseer Khan to village Pachora. He conducted investigation of the case. In his cross examination he admitted that he had received a complaint of Goliram (father of the deceased Smt. Rakesh) forwarded by the court under Section 156(3) Cr.P.C. on October 18, 1992. In that complaint Goliram averred that Rakesh was murdered because of dowry by Ramni and others but he did not summon Goliram and investigate the matter as he was busy in other investigation. He further admitted that Farsa and Tanchia recovered at the instance of the accused were not stained with blood.
10. Gautam Bhasker (PW.20) was posted at the office of CID (CB) Jaipur from October 1992 till February 8, 1993. He received case file bearing No. 364/92 of Police Station Kumher on January 27, 1993 for investigation. He had gone to village Pachora and recorded the statements of witnesses. He had recorded the statements of Sahab Singh, Kunwar Pal and Ganga Ram, who deposed that Ramni killed his wife Rakesh on account of dowry but he did not believe them. When he was asked as to whether he noted down his opinion in regard to not believing them. When he was asked as to whether he noted down his opinion in regard to not believing these witnesses in case diary he replied that he did not know. The case diary was available in the trial court but he was so adamant that he refused to see the case diary.
11. The substantial defence taken by the accused was that they were falsely implicated in the case. Smt. Rakesh was murdered by Ramni Singh and his family members because of dowry greed. As many as five witnesses were examined in defence. Goliram (DW. 1) is the father of deceased Rakesh who deposed that after her marriage as and when Rakesh came to his house, she used to tell him that she was harassed and humiliated by her husband Ramni and Ramwati for not fulfilling the demand of Motor Cycle and T.V. On the occasion of 'Raksha Bandhan' he took her to his house. When Ramni came to take her back he did not incline to send her with Ramni but on the pursuation of Digambar and Satveer and looking to the assurance given by Ramni that he would not misbehave with her in future Rakesh was allowed to go with him. Thereafter Kunwarpal from Pachora came and informed him that Ramni and Ramwati had murdered Rakesh. He could not go instantly to village Pachora because of death of his brother's wife and her two sons. After about 8 to 10 days he went to Pachora where Kunwarpal and Gangaram informed him that Ramni and Ramwati killed Rakesh. He had gone to Police Station Kumher to lodge the report but his report was not entered. Thereafter he filed complaint in the court that was forwarded to the police station Kumher. His statement was also recorded by CID Police. He denied to have demanded Rs.30,000/- from Ramni. In his cross examination Golirarn stated that Rakesh'was wedded to Ramni three years before her murder. Farlier also she was administered poison in porridge. His brother's wife and her two sons had died on second of October and after ten days he had gone to village Pachora.
12. Kunwar Pal (DW.2) is the next door neighbour of Ramni. His house and Ramni's house are attached to each other. On October 2, 1992 around 5 to 6 p.m. when he and his brother Gangaram were standing infront of his house he had seen Ramni and Ramwati going towards Iheir house. Ramni was armed with Tanchia. Ramni got opened the door of his house. As soon as the door was opened he heard the hue and cry of Rakesh 'Mar Liya Re' thereafter she died. He,did not see the accused quarreling with Ramni. When the police came in the night he informed the police that he had seen Ramni killing his wife. He had also informed Goliram and when CID people came to his village after two or three months he also gave a detailed statement.
13. Harbhana (DW.3) and Bhajan (DW.4) deposed that Goliram never demanded Rs. 30,000/- from Ramni. No Panchayat was ever gathered for this purpose. Gaulam Bhaskar of CID never made inquiry from them. Dauli Ram (DW.5) exhibited certified copy of the complaint filed by Boliram against Ramni and Ramwati.
14. Mr. Biri Singh learned counsel for the appellants elaborately argued the matter before us and took us through the judgment of the trial court and also through the relevant documents and deposition. Per contra Mr.S.C. Purohit, learned Public Prosecutor supported the judgment by referring to the findings given by the trial court and he also submitted that those findings are based on appreciation of facts and they do not call for any interference.
15. The fact situation that we noticed after closely scanning the material on record is as under-
i) Smt. Rakesh (deceased was married to Ramni Singh three years before her death.
ii) As many as 16 accused attacked the house of Ramni out of which Hari Ram, Nirbhay, Nekram and Veerpal armed with lathi, Farsa, Tanchia and Katta entered the house. Hari Ram inflicted lathi blow on the person of Ramni but it hit the ground. When Nirbhay inflicted farsa blow Rakesh intervened and it hit on her head. His second Farsa blow also laid on her head. Hari Ram then asked as to how she dared to intervene, inflict more injuries and kill her. Nekram then inflicted Tanchia blows on her neck and back.
iii) Ramni, though was present but no accused made attempt to inflict any injury on his person and he was allowed to escape. No accused followed him.
iv) Meena, Ramwati and Satish who allegedly ware present at the place of occurrence did not receive any injury. Even their clothes were not stained with blood.
v) Chhuttan, who gave shelter to Ramni was not examined by the prosecution. Kamal on whose pursuation the accused went back, was also not produced.
vi) According to Dr. Roopendra Kumar Mittal, injuries sustained by Rakesh could not have been caused by Farsa and Tanchia alleged to have been recovered at the instance of the accused.
vii) Rojnamcha on which telephonic message was recorded on October 2, 1992 by the P.S. Kumher was not produced.
viii) The accused were arrested in the month of October, 1993 i.e. after one year of the incident and recovery of Farsa and Tanchia at the instance of the accused was also effected after one year of the occurrence. Both the weapons when recovered, were not stained with blood.
ix) The witnesses were available at the village Pachora and the Investigating Officer though reached at the place of occurrence al 1,20 a.m. on Octobers, 1992 and remained there upto a considerable period yet their statements under Section 161 Cr.P.C. were recorded as under:-
Ramni (PW1) - In his cross examination he stated that his statement wasrecorded on October 7, 1992 but in his statement Ex. D.1 there is an overwriting and '7' has been changed as '3'.Satish (PW.2J - October 9, '992 (Ex.D.2)Koran Singh (PW.3) - October 9, 1992 (Ex.D.3)Smt. Meena (PW.'l) - October 9,1992 (Ex.D.1)Govind Singh (PW.5) - October 9, 1992 (Ex.D.5)Smt. Ramwati - October 9, 1992 (Ex.D.6) (PW.6)Toran (PW.8) - Octobers, 1992 (I-x.P.8)Ramveer (PW.9) - Octobers, 1993 (Ex.P.10) It thus appears that the statement of eye witness Ramni was recorded on October 7, whereas other eye witnesses Smt. Meena, Smt. Ramwati and Satish were examined on October 9, 1992.
x) Suggestions were made to all eye witnesses by the counsel for the accused that Rakesh was murdered by Ramni and his relatives and the defence appears to have been introduced from the very beginning of the prosecution case.
xi) According to the prosecution case Rakesh was murdered around 5 p.m. onOctober 2, 1992 but information to the police was communicated on telephone atabout 11.30 p.m. A look at the FIR Ex. P. 11 demonstrates that distance between villagePachora and Police Station Kumher is 18 km. Written report was handed over to theSHO Kumher at 1.15 a.m. on October 3, 1993 when he visited village Pachora. Delayin lodging the report has not been explained.
xii) Goli Ram (DW.l) is the father of deceased Rakesh and Kunwar Pal (DW.2J is the next door neighbour of informant Ramni and they categorically stated that Rakesh was murdered by dowry devils Ramni and Ramwati. They were cross examined but nothing could be elicited from them that favours the prosecution theory. Their testimony could not be shattered.
xiii) Investigation was transferred to CID (CB) and Gautam Bhaskar (PW.20) recorded the statements of Goliram, Kunwarpal and Ganga Ram who deposed that Ramni and Ramwati murdered Rakesh but their slatements were rejected by Gautam Bhaskar and he did not agree to see the case diary in the trial court.
xiv) Prabhulal (PW.19) who recorded the statements of witnesses, could not explain as to why he noted down the statements after so many days though the witnesses were readily available.
16. 'A Criminal trial is not like a fairy tale, said the Hoa'ble Supreme Court in State of Punjab v. Jagir Singh, (1974) 3 SCC 277, wherein one is free to give flight to one's imagination and phantasy. It concern itself with the question as to whether the accused arraigned at the trial is guilty of the crime wilh which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be giver to the accused, the courts should not at the same lime reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures.'
17. While considering the prosecution evidence by a yardstick of probabilities the first question which we must ask ourselves is as o whether the allack on Smt. Rakesh took place n the manner alleged by the prosecution and the appellants were responsible for the crime. Even according to the prosecution story as many as 15 accused opened assault with the intention to inflict injuries on the person of Ramni Singh and accused Hari Ram inflicted lathi blow but that did not hit the target. Though the motive of the accused was to cause bodily injury to Ramni, yet they forgot it and killed mnoce'nt Rakesh who made attempt to save her husband Ramni. It is rather strange and inexplicable that Rakesh in the process of covering her husband sustained two incised wounds and two stab wounds but Ramni did not receive any despite he was present all the time. When Rakesh sustained injuries Ramni did not make a single attempt to save her avid was wandering there fore some time and then escaped through staircase, one also fails to understand as to why the accused allowed Ramni to escape and did not follow him. It is also significant to note that Smt, Meena, Smt. Ramwati and Satish who were present inside the house did not receive any injury and they also did not make attempt to save Rakesh. Though Ramni, Meena, Smt. Ramwati and Satish were very near to Rakesh but their clothes were not stained with blood. Testimony of Dr. Roopendra Kumar Mittal also do not corroborate the prosecution story. According to the prosecution case, Nirbhay inflicted two Farsa blows on the head of Rak'esh. Farsa (Article I) alleged to have been recovered at the instance of Nirbhay was shown to Dr. Mittal during his cross examination. Blade of Farsa was in a shape like 'half-moon'. Dr. Mittal categorically deposed that depth of injury if caused, by that Farsa would be uneven whereas the depth of injury on head sustained by Rakesh was even from the beginning to the end. Similarly in regard to injuries alleged to have been caused by Nekram on the neck and Rt. scapula region with Tanchia, according to Dr. Mittal were stab wounds and could only be caused with piercing weapon and not with the Tanchia.
18. As already stated, the incident had taken place at 5p.m. but no attempt was made by the complainant party to lodge the report promptly though the Police Station Kumher was 18 kilometers away. Even the telephonic message was communicated at 11.30 p.m., that is after six and half hours. Written report was handedover to the SHO at 1.15 a.m. on Octobers, when he visited village Pachora. Ramni was available in the village but his statement under Section 151 Cr.P.C. was recorded on October 7, i.e. after five days of the occurrence. Statements of Ramwati, Meena and Satish were recorded on October 9, i.e. after seven days of the incident and no reasonable explanation was put forth for the delay in instituting the report and recording the statements. Under these circumstances possibility of introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation cannot be ruled out.
19. The prosecution has also failed to examine Chhuttan and Kamal who provided shelter to Ramni and persuaded the accused to go back. Their testimony could have justified the deposition of Ramni.
20. Conduct of Ramni, Smt. Ramwati and Sml. Meena appears to be unnatural and it has to be analysed in view of the testimony of Goli Ram (DW. 1) and Kunwarpal (DW.2. As already considered Goli Ram is the father of Rakesh and Kunwarpal is the next door neighbour of Ramni. According to Goiiram Rakesh was married to Ramni three years before her murder. As and when she visited his house she used to tell him that she was harassed and humiliated by Ramni and Ramwati for not fulfilling the demand of Motor Cycle and T.V. He was not inclined to send Rakesh with Ramni when she visited him on occasion of 'Raksha Bandhan' but he was persuaded by villagers and Ramni made promise not to ill treat her in future, therefore, he allowed Rakesh to go with Ramni. After some time Kunwar Pal of village Pachora informed him that Rakesh was killed by Hamni and Ramwati. Because of death of his brother's wife and her two children he could not go to village instantly. When after some days he made attempt to lodge the report with the Police Station Kumher he was sent back and therefore he'had to file complaint against Ramni and Ramwali in the court on October 18, 1992 which was forwarded under Section 156(3.Cr.P.C. to the Police, Kunwarpal (DW.2), who is the next door neighbour of Ramni, as already stated deposed that on October 2, around 5 p.m. he had seen Ramni and Smt. Rakesh going towards their house. Ramni Was armed with Tanchia. As soon as the door was opened, Rakesh cried 'Mar Liya R.e' and thereafter she died. On that day he did not see the accused quarreling with Ramni. When the police came in the night he narrated the truth but the police did not pay any heed. We have carefully analysed the statements of Goli Ram and Kunwarpal and we find that their testimony could not be shattered in the cross examination. An attempt was made by Shri S.C. Purohit learned Public Prosecutor to persuade us to disbelieve the testimony of Goliram on the basis of the statement of Smt. Meena who deposed that Goliram demanded Rs. 30,000/- from Ramni after the death of Rakesh but this is a tall story which is difficult to believe. A father who had lost his daughter in the suspicious circumstances within three years of her marriage would not have acted in a casual manner and demand price of her lost daughter. We also find the conduct of Prabhulal (PW.19) and Gautam Shaskar (PW.20) highly unnatural. Both the investigating officers adopted a partial attitude and did not act independently. When complaint of Goliram was forwarded under Section 156(3) Cr.P.C. it ought to have been investigated. The investigating officer, was expected to obey the orders of the court but in the instant case, it appears from the record that Prabhulal and Gautam Bhaskar acted with utter negligence. The Magistrate concerned is, therefore, expected to inquire into the matter and take action against the faulting police officer.
21. Having considered the evidence of the prosecution from the point of view of trustworthiness we find that it is replete with inherent improbabilities and meaningful embellishments. The entire evidence of Ramni, Smt. Meena, Smt. Ramwati and Satish, as we discussed hereinabovc, sounds highly improbable and we find ourselves unable to accept it. The prosecution appears to have suppressed the genesis and the origin of the occurrence and has not presented the true version. The defence in our view has succeeded in throwing a reasonable doubt on the prosecution case. The learned trial Judge appears to have overlooked the improbabilities and meaningful embellishments discussed by us which were extremely damaging to the prosecution case. The evidence led by the prosecution is wholly unsatisfactory and it cannot be regarded sufficient to found the conviction of the appellants Nirbhay and Nekram for the murder of the deceased Smt. Rakesh. The appellants must, therefore, be acquitted of the offences charged against them.
22. In the result the appeal stands allowed and the impugned judgment of the court-below is set aside. The appellants Nirbhay and Nekram shall stand acquitted from the charges under Sections 302, 302/34 and 452 IPC. They shall be released forthwith if not required in any other case.