Judgment:
N.N. Mathur, J.
1. This appeal is directed against the judgment dated 21.06.1996 passed by the Additional District and Sessions Judge No. 2 Chittorgarh convicting the appellant for offence under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment to further undergo six months rigorous imprisonment.
2. Briefly stated the facts are as follows:
3. The appellant Gopal Lal Garg was married to the victim Mst. Manju about 12 years back while she was a Child aged 10 years. But the 'Gona' took place only 4 years back. (In case of child marriage as per the custom actual marriage is consummated after the ceremony known as 'Gona'). According to the prosecution Mst. Manju was maltreated by the appellant as her parents could not meet the dowry demand.
4. It is the case of prosecution that on 5th of July, 1994 PW-22 Shankar Lal, S.H.O., Police Station Kapasan on receiving a wireless message from the Superintendent of Police, Chittorgarh reached at the house of appellant at village Singhpur at 5.00 AM. The appellant was found alone in the house. He narrated the incident of robbery in the house in night by some miscreants. The appellant submitted written First Information Report Exhibit P-1 at about 7.00 AM stating inter alia that before going to the bed in night, he closed the door of the house and put lock thereon. In the night at about 12.00 three miscreants entered in his house. One of the miscreants stood beside him, another stood beside his wife and third was standing near the bicycle. One of the miscreants attacked on him by 'Lathi' and made him unconscious. He was also wounded by knife. He gained conscious after about half an hour. On opening the eyes he looked at his wife. He opened the gate and went to the house of PW-2 Gyasuddin. He was awakened by him. He narrated the entire incident to him esjs dks de ls de 1@2 ?k.Vk o iksu ?k.Vs ckn es gks'k vk;k rc esjh vkW[k [kqyh esjh ifRu dks ns[kdj okil fdokM+ dk rkyk [kksyk vkSj fQj esjs iM+kslh ds ikl x;k A Thereafter, PW-2 Gyasuddin visited the house of appellant. His wife lying unconscious. PW-2 Gyasuddin returned and informed her parents, uncle Rameshwar, Kailash etc. He also disclosed to the Police that he married to Mst. Manju about 12 years back. His wife Manju was staying with her parents for about two years. He brought her in the month of January but she returned to his parents house in June 1994. Even prior to that she used to stay with her parents. There was a child of seven months in her womb. He also stated that his wife was assaulted by the miscreants but he did not raise hue and cry. He simply opened the lock of the house and went to the house of PW-2 Gyasuddin. He also stated that miscreants did not took away any article from his house. He also stated that the ornaments which his wife was wearing remained on her body. On this information police registered a case for offence under Section 302 IPC. On the same day, PW-23 Madanlal, the father of victim Mst. Manju submitted a written report Exhibit P-19. He stated that his daughter Mst. Manju was married to the appellant Gopal Lal about 12 years back. At the time of marriage he had given a good dowry to the appellant. When his daughter grown up, he send her to her in laws house about 4 years back. However, she was being harassed by the appellant Gopal Lal, his mother, father and brothers. Because of their ill-treatment Mst. Manju stayed at his house for more than three years. A panchayat was also convened presided by former Surpanch Dayaram. An assurance was given by the appellant and his parents before the Panchayat that Mst. Manju will not be illtreated. Still he tried to meet the demand as per his capacity. He himself went to the house of appellant and dropped his daughter Mst. Manju. She stayed there for three to four months and returned to the village Singhpur and complained about the ill-treatment by appellant and his parents. The appellant was arrested on the same day to about 5.00 PM vide Exhibit P-15. After usual investigation, police laid chargesheet against the appellant, his brother Dinesh, mother Kamla, father Sohanlal for offence under Section 302/34.
5. The appellant and other acquitted accused persons denied the charges levelled against them and claimed trial. The prosecution in support of the case, examined 26 witnesses and produced certain documents. The appellant and other accused persons denied the correctness of the prosecution evidence appearing against them. The appellant in his statement under Section 313 Cr.P.C. has stated that on the date of incident he alongwith his wife was sleeping in the house. He was awakened by the bark of dogs. On opening the eyes, he found that one person was standing besides him with a knife and another person was standing beside his wife armed with an iron rod (Sariya). When he tried to get up, the person standing besides him inflicted injury by knife on his left hand. The person standing nearby his wife gave a blow by iron rod on the head of his wife on account of which she died. Thereafter, the person standing beside him pressed his neck on account of which he become unconscious. On gaining conscious he found his wife dead. He went to the house of PW-2 Gyasuddin and PW-1 Smt. Amida Bai and narrated the incident. In the night itself. Rameshwar informed the Superintendent of Police. Chittorgarh on telephone about the incident. The police arrived at his house at about 6.00 AM. The police got a letter written by him under threat. He also stated that in the night Mithulal, Tolambiya and Kanahiyalal Sethiya had also arrived. He also stated that miscreants entered in the house by jumping the wall. He gave out the height of the wall as eight feet and suggested that miscreant could enter in the house jumping the wall. With respect to information to police, he state it was done by Rameshwarlal. He denied to have made any demand in respect of dowry. He further stated that on the contrary at the time of marriage he had given Rs. 5,000/- and at the time of engagement also he had given Rs. 5,000/- to her father in law.
6. Analysing the evidence the trial court arrived at the conclusion that the prosecution has failed to establish the demand of dowry or the cruelty to Mst. Manju. The court also held that the marriage had not taken place within seven years of the incident. In view of this finding, the learned Judge acquitted all the accused persons for offence under Sections 304-B and 498-A IPC. However, the learned Judge held that there are tell tale circumstance leading to the irresistible conclusion that it was nonelse but the appellant who committed the murder of his wife Mst. Manju. Accordingly, he convicted and sentenced the appellant as noticed above.
7. It is contended by Shri D.S. Shishodia, Senior Advocate appearing for the appellant that the learned trial court has viewed the entire case from a wrong approach. It is also submitted that the learned Judge has failed to consider defence version in right prospective. It is submitted that evidence of recovery is an inadmissible evidence and as such it cannot be considered as an incriminating circumstance. On the other hand, learned Public Prosecutor has supported the judgment of the trial court.
8. It is well established that no person can be convicted on the basis of circumstantial evidence unless all the circumstances relied upon by the prosecution are clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. The reference be made to the decision of Apex Court in State of U.P. v. Hari Mohan and Ors. reported in : 2001CriLJ170 . While appreciating the circumstantial evidence evidence what should be the approach of the court has been indicated by the Apex Court in a recent decision of State of Himachal Pradesh v. Lekhraj and Sons reported in : 2000CriLJ44 . The Apex Court has observed that the realities of life have to be kept in mind while appreciating the evidence for arriving at the truth in a criminal case. The Court observed:
The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian though but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind.
9. In the instant case, the most important incriminating circumstance on which the prosecution has relied upon is accused misleading the prosecution, making false assertions, making contrary statements. In this regard, it is desirable to seek guidance from the recent decision of the Apex Court. In Kuldeep Singh and Ors. v. State of Rajasthan reported in : 2001CriLJ479 , Apex Court after referring to its earlier decision in Swapan Patra v. State of West Bengal reported in : (1999)9SCC242 and State of Maharashtra v. Suresh reported in : (2000)1SCC471 held that a false answer can also be counted as providing 'a missing link' for completing the chain. In State of U.P. v. Babu Ram reported in 2000 CrLJ 2457 the court found the evidence of misleading the investigation or the people as an important incriminating circumstance. In Geetha v. State of Karnataka reported in : 2000CriLJ3187 , the false denial of the incriminating circumstance appearing against the accused has also been considered an important incriminating circumstance to supply a missing link in the chain of circumstances. In Smt. Basanti v. State of Himachal Pradesh reported in : 1987CriLJ1869 the wife was charged for the murder of her husband. In the said case, the accused Mst. Basanti put the villagers including her brother in law on the false track by telling them that deceased Prabhuram had gone away from village and had not returned. The Apex Court held that the conduct of hers was clearly admissible under Section 8 of the Evidence Act as part of res gestae as a evidence of conduct immediately after the occurrence.
10. Keeping in view the aforesaid, we proceed to examine the circumstantial evidence produced by the prosecution in the instant case.
11. The prosecution has relied upon the following pieces of circumstantial evidence:
(a) The appellant mislead the police and other people and put on false track by telling them that some robbers had entered in the house, caused injuries to him, made him unconscious and murdered his wife.
(b) The appellant alone had the opportunity to commit the murder of his wife Mst. Manju as there was nonelse in the house.
(c) Recovery of blood stained knife in pursuance of the information given by the appellant.
(d) The relations between the appellant and the deceased were not cordial.
12. Before we deal with the each circumstance, we may refer to medical evidence. PW-7 Dr. Amar Singh Rathore stated that he was one of the member of Board which conducted the post mortem of the dead body of deceased Mst. Manju and noted following injuries:
Incised wound 12 cm x 1/4 cm x sub-cut deep placed across epigastrium, transversely placed, between costal borders. No tissue staining this incised wound is post mortem in nature.
Abraded bruises of size 10 x 1 cm to 6 x 4 cm on both sides of neck, chin anterior side of neck, redish on cut tissues staining present.
Lacerated wound 2 x 1/2 cm x scalp deep with red closed blood left parietal region with occipital region.
Sub scalp haematoma 8 x 6 cm over parieto occipital area left side.
There is fracture of 6 x 4 cm bone of left parieto occipital area skull is staining.
He has proved the Post Mortem Report Exhibit P-2. He stated that except injury No. 1 all the injuries were ante mortem in nature. The injuries were sufficient in ordinary course of nature. In his opinion cause of death was 'coma' caused by injury to skull and brain hemorrhage.
FIRST CIRCUMSTANCE:
13. PW-1 Amida Bai is the neighbour of the appellant. She has stated that in night at about 1.30 AM the appellant gave her call and narrated as to how he and his wife were belaboured by the miscreants. She asked her neighbour Aslam to call the parents of appellant Gopal. Accordingly, Aslam went to call the parents of the appellant. She awakened her husband Gyasuddin as well and reported about Gopal being beaten by miscreants. He also went towards the bus stand. The statement of PW-2 Gyasuddin is also almost on the same line. It is significant to notice that appellant Gopal did not disclosed to both the witnesses that Mst. Manju died on account of injuries caused by the miscreants. Both these witnesses also not visited the house of the appellant.
14. DW-1 Rameshwar has stated that on 05.07.1994 at about 1.30 AM in the night while he was sleeping inside the house, he heard some people talking outside. They were passing through his house. he opened the door and enquired about the movement of thieves. It was reported that thieves have entered into the 'Nohra' of Gopal Garg at the bus stand. He also disclosed that thieves have killed the wife of Gopal. He gave information of this incident on telephone to Superintended of Police. He has named the persons passing through his house as Nanda Acharya and Ganesh Acharya. In the morning at 6.00 AM, he went to the house of Gopal Garg and came to know that some unknown persons have killed the wife of Gopal. In the corss-examination, he expressed his unawareness about the person who died in the family of Acharya. He stated somebody in the family of Acharya died. He also stated that police interrogated him about the telephonic call given by him to Superintendent of Police.
15. DW-2 Kanahiyalal has stated that at about 11.30 PM he has returning from his shop after closing the same. At that time, he noticed some dogs barking outside the 'Nohra' of Gopal. He gave a call to Gopal. He heard two or three thieves jumping out from the 'Nohra'. Thereafter, he peeped into house through a window and saw three persons inside.
16. PW-22 Shankar Lal has stated that on receiving the wireless message from Chittorgarh, he reached to the village Singhpur and visited to the house of appellant Gopal. The appellant submitted a First Information Report Exhibit P-1 stating inter alia that some thieves have killed his wife in the night.
17. The question arises for consideration is whether the version given by the appellant is, if not true, probable or false and misleading. On careful consideration of the material on record we find more than one reason to conclude that version given by the appellant is improbable, false and misleading, which can be summarised as follows:
(a) No article from the house or even ornaments on the body of the deceased has been taken away or disturbed in any way, particularly when thieves succeeded in making the appellant (only male member in the house) unconscious and killing deceased, as such had sufficient opportunity.
(b) Strangely, one of the injury caused by sharp edged weapon on the dead body of the deceased is post mortem. According to the appellant he remained in the house throughout the night and nobody else entered, thus, such injury could be caused either by the alleged thieves or the appellant. There was no reason for the thieves to cause injury after Mst. Manju was dead. It is argued by Mr. Shishodia that miscreants while leaving might have struck some sharp edged weapon to the body causing post mortem injury. We are unable to agree with the suggestion of the learned Counsel. After committing the murder, for what, the alleged robbers were required to stay, when no article has been removed from the house. The post mortem injury is the only injury caused by sharp edged weapon, measuring 12 cm in length. This injury could be caused only by the appellant, who alone was in the house after the murder of Mst. Manju. Appellant has tried to mislead by creating evidence that two weapons were used, one of blunt edge and other of sharp edge, as such there must be two miscreants.
(c) The injuries on the person of the appellant vide Exhibit P-3 are self inflicted, as stated by PW-7 Dr. Amar Singh Rathore. Following injuries were found on his person:
Incised wound 10 x 1/2 cm sub cut deep with red clotted blood tail and towards the lower end of clean cut well diffentation.
Multiple scratch abrasion reddish, left thigh anterior reddish from 10 cm to 7 cm (7) in number.
Incised wound left things 3 x 1/2 x muscle deep with read clotted blood.
The injuries are simple in nature. There are multiple scratches on account of such injuries, appellant could not have become unconscious. The Doctor has also opined that there was no question of appellant becoming unconscious because of injuries in Exhibit P-3.
(d) The medical evidence falsifies the incident spoken by the appellant in Exhibit P-1. He stated that one of the miscreant gave lathi blow making him unconscious. Injury Report Exhibit P-3 shows that there is no injury caused to him by blunt object. In statement under Section 313 Cr.P.C., appellant stated that miscreants pressed his neck on account of which he become unconscious, but Injury Report Exhibit P-3 does not show any injury on his neck.
(e) The narration of the incident given by the appellant in statement under Section 313 Cr.P.C. is different from earliest version in F.I.R. Exhibit P-1. In Exhibit P-1 the incident took place at about 12.00, but in statement under Section 313 Cr.P.C., it has been changed to 1.00 AM with a view to fit in with the statement of PW-1 Amida Bai and PW-2 Gyasuddin. In Exhibit P-12 he has not stated how Mst. Manju was killed, as on account of assault by the miscreants he became unconscious and did not see how his wife was killed, but in statement under Section 313 Cr.P.C. he has stated that one of the miscreants gave a blow of the iron rod on the head of has wife on account of which she died.
Thus, prosecution has succeeded in establishing the first circumstance by cogent evidence. The circumstance that appellant mislead the police and people and put them on false track is of conclusive nature.
SECOND CIRCUMSTANCE:
18. PW-1 Amida Bai and PW-2 Gyasuddin has stated that the appellant came to their house and informed about the incident which took place in his house. Aslam was send to inform his parent at their house at bus stand. The appellant was living with his wife Mst. Manju in house/nohra. Thus, the appellant alone had an opportunity to commit the murder of Mst. Manju. This is an important incriminating circumstance against the appellant.
THIRD CIRCUMSTANCE:
19. PW-22 Shankar Lal has stated that he arrested the appellant on 05.07.1994 itself vide Exhibit P-15. On the next day, in pursuance of the information given by the appellant vide Exhibit P-16 a blood stained knife was recovered from the house of the appellant. The knife was seized, sealed and packed on the spot. The article was deposited in the Malkhana. Subsequently, it was send to the Forensic Science Laboratory for chemical examination. It is not necessary to discuss this evidence as the same has not been challenged by the defence. As per the FSL Report, the blood stained knife has been found to be of human origin. It is contended by the learned Counsel that FSL Report on record cannot be read as the same has not been tendered in the evidence. Section 293 of the Criminal Procedure Code is a special rule of evidence which makes any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or think duly submitted to him for examination and report, admissible in evidence without calling such expert as a witness. The document produced is a piece of evidence which does not require any formal proof. But, it is required to be tendered in evidence and used as such. The words 'may be used in evidence' in Section 293 does not imply that without tendering the report in evidence it can be made use of. Thus, in normal course the FSL should be tendered in evidence and exhibited. In the instant case, though the FSL has not been exhibited but it has been tendered in evidence by the prosecution and in token of it the counsel for the defence has received the copy after making an endorsement on the receipt. Thus, no prejudice has been caused to the appellant. Thus, we find no substance in the contention raised by the appellant. No explanation has been given by the appellant as to the presence of the blood on the knife recovered from his house. This is an importance incriminating circumstance against the appellant which has been established by the prosecution by cogent evidence. The circumstance is of conclusive nature.
FOURTH CIRCUMSTANCE:
20. Though the prosecution has not succeeded in establishing that it was a case of dowry death. But, the statement of PW-23 Madanlal, clearly shows that relations between the appellant and Mst. Manju were not cordial. Even a Panchayat was convened in which the parents of appellant had given an assurance for the good treatment of Mst. Manju, Thus, there is a motive against the appellant for committing the murder.
21. The cumulative effect of all the circumstances discussed above is that it leads to the only inference that it is the appellant and appellant alone who committed the murder of his wife Mst. Manju. Thus, in our view the learned Judge has rightly convicted the appellant for offence under Section 302 IPC on the charge of murder of his wife.
22. Consequently, we find no merit in this appeal and the same is dismissed. The conviction of the appellant for offence under Section 302 IPC is upheld. He is in jail. He will serve out the remaining part of the sentence.