A. N. Dikshita, J.@mdashAppellants Biri Singh, Smt. Jai Devi and Ram Phal have filed this appeal being aggrieved against the judgment of the Special Judge, Agra dated 2487 passed in S. T. No. 369 of 1985 convicting them under Section 302 read with Sections 34 and 498A, I.P.C. arid sentencing them to death and 3 years'' R, I. respectively.
2. Biri Singh appellant is the son of Ram Phal appellant while Smt. Jai Devi is his mother (wife of Ram Phal). Smt. Munni Devi (deceased) is the wife of Biri Singh appellant.
3. The prosecution story is that on account of nonpayment of dowry all the appellants have committed the murder of Smt. Munni Devi (deceased) wife of Biri Singh, appellant by strangulating her in their house in village Salempur Dhankar on 10785 at 2 p. m.
4. The oral first information report was lodged by the Chandan Singh (P.W. 4) at P. S. Nibhora, district Agra on 1.0785 at 4.30 p.m. The distance of the police station from the place of occurrence is about 3 miles. In the F. I. R. lodged by Chandan Singh (P.W. 4) on 10785 at 4 p. m. it was stated that he is by caste a Thakur and is a resident of Nichakheda. Around 3 p. m. on 10785 as he was preparing to go to a Sarangpur FAIR from his village, a boy from Salempur Dhankar came and informed him that Ram Phal Thakur of village Salempur Dhankar has killed his daughterinlaw Munni Devi. As his niece Baijanti is married to Nahar Singh elder son of appellant Ram Phal, he on hearing such news immediately went on cycle to Salempur Dhankar and reached the house of Ram Phal where he found the deadbody of Munni Devi. The body of Smt. Munni Devi bore injuries also. It has further been mentioned in the first information report that Smt. Munni Devi was married about a year back with Biri Singh so Ram Phal. The father of deceased Munni Devi is a teacher and is a resident of village Pharera, P. S. Bah, district Agra. After the performance of the marriage, Muani Devi was brought to village Salempur Dhankar by Ram Phal and Biri Singh and then Ram Phal and Biri Singh demanded a dowry of Rs. 10,000 from the Master (father of Munni Devi). The Master (father of deceased Munni Devi) after arranging Rs. 4000 had given it to them (appellant Ram Phal). However, a balance of Rs. 6000 could not be given by the Master. It was on this account that Ram Phal and Bin Singh had not sent Smt. Munni Devi to her father''s place and started beating her every day. It is further mentioned in the first information report that two months prior to the incident, Master (father of Munni Devi) went to the house of Ram Phal in village Salempur Dhankar. Ram Phal again demanded the balance of Rs. 6000 which was refused by Master (father of deceased Munni Devi) Provoked on such refusal Ram Phal ran to beat him with a shoe. It has further been mentioned that 2025 days prior to this incident 13th day ceremoney of his (Chandan'' Singh''s) Mama was performed at his house in village Nichakheda where Munni Devi had come. At that time it is alleged in the first information report that Munni Devi had told the informant Chandan Singh that on account of such nonpayment of the amount (balance of Rs. 6000) by her father. Biri Singh, her motherinlaw Jai Devi and her fatherinlaw Ram Phal gave her beating everyday. She told him (Chandan Singh) to convey this information 10 her father who may take her to his place otherwise these persons would kill her. In village Salempur Dhankar (when he reached on the information of the boy) people told him that around 2 O''clock Munni Devi was badly beaten by Biri Singh son of Ram Phal, Jai Devi wife of Ram Phal and Rum Phal son of Chhitar Prasad inside the house. The shrieks and cries of Manni Devi (deceased) were heard by the villagers. It is alleged in the first. information report that all the three (Biri Singh, Jai Devi and Ham Phal) join killed Munni Devi on account of the nonpayment of the dowry. Bhagwan Singh, Kaptan Singh and Bharat Singh of village Salempur Dhankar, P. S. Nibroha, district Agra are the witnesses of the incident. The deadbody of Smt Munni Devi is lying inside the house. Lastly it has been alleged that Jai Devi and Ram Phal have run away from the house,
5. Necessary investigation ensued. The deadbody of (the deceased] Smt. Munni Devi was sent for postmortem examination which was conducted by Dr. A.P. Agrawal (P.W. 1) on 11785 at 4 p.m. The following antemortem external injuries were found on the person of the deceased :
(1) A braded contusion 1 ''x � on right side of neck 1 cm outer to mid line on front 2 above the inner and of clavicle.
(2) Contusion 2.2 x l on left side of neck, 1.2 outer to mid line on front 1 above the inner and of clavicle.
(3) Contusion I X 1 on right palm.
(4) Abrasion � x� on front of right knee.
(5) Two contusions � x� on the posterior aspect of left knee 1 apart.
(6) Abrasion �x � on front of left knee.
6. In the opinion of Dr. A. P. Agrawal (P.W. 7) the cause of death was asphyxia as a result of antemortem injuries.
7. On the completion of the investigation a chargesheet was field and the accused (appellants) were tried. They pleaded not guilty and stated that they have been falsely implicated due to village partibandi. The trial court on consideration of the evidence on record came to the conclusion that the prosecution has succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned above.
Hence this appeal.
Heard counsel for the parties.
8. To butters the prosecution story, 10 witnesses were examined to connect the appellants with the crime namely, Bhanv, Sinah P.W. 1, Kaptan Singh PW. 2, Rambir Singh P.W. 3, Chandan Singh P.W. 4.Tokam Singh P.W 5.Narian Singh P.W. 6, Dr, A. P. Agrawal, P.W. 7,S. I. V. P. Sharma P.WS, Suresh Chandra P.W. 9 and V. K. Dohre Circle Officer P.W. 10.
9. Before scanning the evidence of the persecution witnesses it is radiantly revealing from the record that there is no eyewitness in this case who may have witnesses the incident. No doubt in the first information report it has been mentioned that Bhanwar Singh (P.W. 1) and Kaptan Singh (P.W. 2) have denied having witnessed the incident. The entire prosecution case, thus, rests on the circumstantial evidence.
10. Two other factors are also shining on the canvas of the prosecution story to bring home the guilt to the appellants.
11. One is motive of the appellants to kill Muuni Devi (deceased) and the other that the appellants after committing the crime had run away from the house.
12. Before scanning the circumstantial evidence it is imperative to explore the motive in killing Smt. Munni Devi by the appellants and also whether the appellants after committing the crime had run away from the house.
13. As regards motive to kill Smt.. Munni Devi it is alleged by Chandan Singh (P.W. 4) that after the performance of the marriage when the bride Smt. Munni Devi was taken home, a demand of Rs 10,000 as dowry was made. Out this demand Rs. 4,000 were paid by the father of Munni Devi (deceased) but the remaining balance of Rs. 600'' could not be paid and was refused. This has been shown by the prosecution to be the motive to kill Munni Devi.
14. As regards running away from the, house one witness Tokam Singh (P.W. 6) has stated that he saw the three appellants, going out of the house and this fact has been shown to be conclusive to rope in the appellant with the commission of the crime. This has also boon shown to be a circumstances as the deadbody of Smt. Munni Devi was found in the house of Ram Phal appellant and they were seen coming out of the house. Both these factors i.e. motive and absconding of the appellants arc without any intrinsic worth as would be shown later.
15. To appreciate the testimony of the witnesses it is necessary to find to whether the cardinal principles as settled by the Supreme Court in regard to circumstantial evidence has been established or not.
16. In the case of Gambhir v. State of Maharashtra, AIR 1982 SC 1167f it has been held as under:
The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, sue evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sough, to be drawn, must be cogently and firmly established (2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused (3) the circumstances, taken cumulatively, should form a claim so compile that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be Complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17 The above principles was followed by the Supreme Court in the case of Karabhadrappa v. State of Karnataka, AIR 1983 SC 446, where it was again held as under :
In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
18 Further in the case of Sharad Birdhi chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, five principles were set out with celebrity :
(1) 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
(2) 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
(3) the circumstances should be of a conclusive .nature and tendency
(4) they should exclude every possible hypothesis except the one to be proved and
(5) there must be a chain of evidence so 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.
The Supreme Court further found that the'' circumstances concerned must or should'' and not ''may be'' established. There is not only a grammatical but a distinction between ''may be proved'' and ''must be or should be proved as by the Supreme Court in Shivaji Sahebrao Bobade v. .State of Maharashtra (1973) 2 SCC 793 : AIR 1973 SC 2622, where the following observations Were made
Certainly it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.
'' 19. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (supra) these five circumstances were found to be five golden principles consultation of the case based on circumstantial evidence. It has thus to be seen that the circumstantial evidence is so cogent and compelling as to convince , hypothesis other than the murder can be accounted for. Howsoever pure & moral conviction may be the cardinal principle of criminal a case can be said to be proved only when there is certainly.
20. In view of the above shining guidelines it has now to be seen as to Sing forward in support .of the prosecution story are evidence inheres intrinsic worth. It cannot be doubted for important factor which prompts a person to commit the crime It is where the eyewitnesses are not available that circumstantial evidence is a adduced to connect the motive with the crime.
21. As shown above the prosecution has examined number of witnesses to bring home the guilt to the appellants.
22. P.W. 1 Bhanwar Singh is mentioned as a witness of the incident in the first information report lodged by Chandra Singh (P.W. 4). He has stated that the appellant Ram Phal, Biri Singh and Jai Devi p. known to him as they are of the same village (Salempur Dhankar). Marriage of Biri Singh was performed with the daughter of a Master of village Pharera about a year back. He has also stated that Baijanti is the jethani of the wife of Biri Singh. Wife of Biri Singh died around 10 months back. He has categorically stated that he docs not know as to how the wife of Biri Singh died. The prosecution then declared him hostile. However, this witness was crossexamined by the prosecution. He has staled that he was not interrogated by the Investigating Officer. When the statement of this witness recorded under Section 161, Cr. P. C. was readout to him, he specifically reiterated that he did not give any such statement to the SubInspector. He has clearly stated that he saw the deadbody of the wife of Biri Singh when policemen were taking such dead body out of the house of Tokam Singh (P.W. 5) Though, he is an independent witness but has failed to support the prosecution version. The veracity of his testimony is thus of no avail to the prosecution.
23. The prosecution has produced P. W. 2 Kaptan Singh in support of its case. In the first information report he has been mentioned as a witness of the incident. He has stated that he knows only Ram Phal and Biri Singh. On seeing towards Jai Devi (accusedappellant) he has stated that he does not know her. He has admitted that wife of Biri Singh (Munni Devi) expired 10 months back. He has categorically stated that he does not know as to how she died. He has also specifically asserted that he does not know as to when the wedding of Biri Singh took place. Again the weapon of declaring this witness as hostile was used. He was crossexamined by the counsel for the State. He has clearly stated that neither the SubInspector ever interrogated him nor recorded his statement. On being read out, the statement under Section 161, Cr, P. C., this witness has categorically denied that he ever gave such a statement to the SubInspector. He has feigned ignorance as to how the SubInspector has recorded such a statement. This witness was put to a searching crossexamination by the counsel for the State about his caste and the prevalent dowry in his caste. He has stated that he is a Thakur and is of the same caste as that of Biri Singh. This witness is aged about 28 years and has affirmed that in his marriage he had received a dowry of Rs. 500 only. This payment on dowry of Rs. 500 clearly reveals the prevalent dowry being given amongst the (caste of) Thakurs at the relevant time. This witness has denied the suggestion of the counsel for the State that he saw the beating and heard shrieks and cries of the wife of Biri Singh (Muuni Devi). He has also denied another suggestion that lie heard cries of Baijanti. He has further denied another suggestion that the wife of Biri Singh died on account of receiving injuries. It is thus apparent that Kaptan Singh (P. W. 2) has also not supported the prosecution version.
24. These two witnesses Bhanwar Singh (P. W. 1) and Kaptan (P. W. 2) have amply not supported the prosecution version.
25. Besides these two witnesses who were shown by the prosecution as having witnessed the incident there is no other eyewitness.
26. P. W. 3 Ranbir Singh alias Master is the father of deceased Munni Deyi. He has stated that his daughter Munni Devi (deceased) was married to Biri Singh around two years back. She expired 10 months back. He had given a dowry of Rs. 7100. He has categorically stated that no settlement for the payment of dowry was arrived at the time of marriage. He has stated that after 10 days of the wedding the bride had returned home where after he was taken by his brotherinlaw (Jeth) and at that time certain clothes were given. However, when tyohari was sent in the month of Sawan through a barber and his son Kali Charan it was returned. When he himself went Ram Phal appellant demanded Rs. 6000,. As he was a poor person, he could not pay it. Circumstances continued to be the same and the appellants were unhappy. When Kali Charan went to bring Munni Devi she was not sent by the grooms party and instead an allegation was levelled that he wants to sell the girl. Hither or thither abuses were hurled making Kali Charan weep. He has admitted that Baijanti is jethani of his daughter Munni Devi (deceased). Baijanti''s father Fateh Singh resides in village 2 Nieha Kheda. Chandan Singh (P. W. 4) is the brother of Fateh Singh. It is thus clear that Chandan Singh is the uncle of Baijanti. P. W. 3 Ranbir Singh has stated that Chandan Singh (P. W. 4) had informed him that he had lodged the report of murder of Munni Devi. He has also stated that when the news of the death of Munni Devi reached .his home, he was not there. His son Kali Charan an nephew Ram Autar had gone to Salempur Dhankar. Hs had returned the next morning (i. e. on 11785). In the evening Kali Charan and Ram Autar had brought the dead body of the deceased Munni Devi to his village Pharera which was earlier sent by the police to Agra. On receipt of the deadbody of Munni Devi last rites were performed. But at that time none from the house of Ram Phal came as they had killed the girl.
27. The prosecution has introduced the motive in the killing of Munni Devi as the noa payment of dowry in the first information report. Chandan Singh (P. W. 4) has alleged in the first information report that Rs. 10,000 were demanded as dowry. This witness P. W. 3 Ranbir Singh has categorically stated that no dowry was settled though he had given Rs. 7100. Once there was no settlement of dowry then the very ingredient of dowry would not be satisfied. In various sections of society a demand is made and the amount which is settled in lieu of the marriage is c dowry but here the element of demand is completely lacking, Ranbir Singh (P. W. 3) has specifically described the allegation of Chandan Singh (P. W. 4) that a demand of Rs. 10,000 was made as dowry. At no point of time this witness . (P.W. 3) has ever stated that any such dowry of Rs. 10,000 was settled. As shown above, the motive has to be established beyond doubt and only then evidence either visual or circumstantial would supplement the motive for the commission of the crime. No doubt the prosecution has introduced a demand of Rs, 60 GO by the appellants from this witness but it appears incredible and reliance cannot be placed on such a testimony.
28. P.W. 4. Chandan Singh id the informant and is the main architect of the prosecution story. He has stated that appellants are known to him as they belong to Salempur Dhanker though he is the resident of village Nieha Kheda. He knows Nahar Singh (son of appellant Ram Phal and elder brother of appellant Biri Singh, to whom his elder brother''s daughter (Bajainti) has been married. Munni Devi was married to Biri Singh (appellant) about two and a half years back. Munni Devi is daughter of Ranbir Master (earlier Master has been mentioned but this Master is Ranbir P.W. 3) Nahar Singh to whom his niece is married is the son of appellant Ram Phal. About one and a half years back around 2 p.m. he was at his house and was preparing to go to a fair at Sarangpur to purchase bullocks when a boy from Salempur Dhankar came from Salempur Dhanker). He has stated that this boy told him that Ram Phal, Jai Devi and Biri Singh had killed his baha whose name was revealed as Munni Devi. He reached Salempur Dhanker where there was a big crowd near a temple outside the village and he has stated that he had a talk with Kaptan (P.W.2) Bhanwar Singh (P.W.1.) and Bharat Singh. They told him that girl Munni Devi had been killed by RAM Phal, Jai Devi and Biri Singh (appellants). He then went to his (Ram Phal''s) house where he found the dead body of Munni Devi lying in the verandah of the house of Ram Phal (appellant). He has stated that a dowry of Rs. 10,000 was settled with Ram Phal for the marriage of Bin Singh. Munni Devi''s father had given Rs. 4000 in cash. The balance was not given. On account of this nonpayment these persons (appellants) had killed the girl (Munni Devi). Me dictated a written report of the incident at the police station and signed it..
29. In his crossexamination he has stated that the boy who had come to inform him was aged as 12 years though he does not know his name. He admits that in the report name of Ram Phal alone had been written and not of all the three appellants. He had gone to Salempur Dhankar on a bicycle which is two . miles away from his village. He admits that he was going to village Sarangpur fair to purchase bullocks but he did not go there that day though bullocks were purchased after a week. He further admits that he did not tell the SubInspector about the boy who had informed him. He also admits that he stayed at the site for half an hour wherefrom he went straight to the police station. He has Mated that he reached Salempur Dhankar around 2.30 p. m. After lodging the report at the police station he returned to his house which he considered proper. It is strange that he did not return to village Salempur Dhankar where a close relation of his for whom he had gone to the police station Nibhora to lodge the report did not come. He also admits that at his instance two months back Rs. 4000 were given to the appellants. Though he has stated that the police station is around 2 miles from village Salempur Dhankar but in the same breath in the crossexamination he admits that Kachpura is 4 miles from village Salempur Dhankar while Nibhora is 3 miles from village Kachpura. He has admitted that when he reached the place of occurrence he found Jai Devi around 2.30 p. m. present in her house though he did not have any conversation with her. He has admitted that after this incident he went to village Salempur Dhanker after about two months. This appears to be wholly in conflict with human nature and family relationship when such a close relation of his was killed. Further there is absolutely no consistency and congruity in his statement which appears to be laden with myth and fib when he introduces the demand of dowry and the payment of a part of the amount of dowry though P. W. 3, Master Ranbir has denied that any dowry was settled. The testimony of this witness is incredible and far from truth, though there is no suggestion to this effect but it appears that he is more prompted to implicate the appellants so that the entire assets and property of Ram Phal may fall into the hands of Nahar Singh A ho is the husband of his niece. This circumstance is socardinally consistent with the happenings in the villages where the persons in order to help their kith and kin do not fail to falsely implicate other relations for self aggrandizement.
30. From the statements of P. W. 3 Ranbir Singh and P. W. 4 Chandan Singh it is clearly revealing that their statements are contradictory in intent and in spirit. The allegation as stated in the testimony of P. W. Chandan Singh regarding dowry of Rs. 10.000 having been settled for the marriage of Biri Singh (appellant) has been proved to be false, as such a story .has been completely, may categorically, denied by P. W. 3 Ranbir Singh. In such circumstances the motive to kill Munni Devi (Deceased J by the appellants fails.
31. There were the two witnesses as regards demand of dowry. Both have contradicted each other and as such now it is to be seen whether there is any circumstantial evidence to bring home the guilt against the appellants.
32. P. W. 5 Tokam Singh has stated that his house is after one house of Ram Phal. He has stated that about one a half year back around 2 p. m. he was at his residence when he heard the noise that a girl has been killed On hearing such a noise he went to the house of Ram Phal where he found girl (Munni Devi) dead. He saw the appellants going towards the south of the house. la his crossexamination this witness has categorically stated that he does not know as to how she (Munni Devi) died. He has admitted that he did meet witness Chandan Singh (P. W. 4) but he had no talk with him. However, with another breath he has stated that the appellants were briskly moving though he saw them from the back. This is the only circumstance that the prosecution has stressed to bring forth against the appellants that P. W. 5 Tokam Singh after the incident saw them leaving the house. But the veracity and the truthfulness of his statement is belied by a similar fact that P. W. 4 Chandan Singh admits that when he reached the place he found Jai Devi (appellants at her residence. It is again wholly improbable and is contrary to human conduct: that this witness would not talk to witness Chandan Singh (P. W. 4) though he is known to him. Similarly when a girl is killed in a village how such villagers who had assembled at the site would permit the killers to leave the house. The evidence of this witness that he saw all the appellants leaving the house is in the teeth of the evidence of P. W. 4 Chandan Singh who has specifically stated that he did meet Jai Devi (appellants) when he reached there. Another glaring aspect about the testimony of P. W. 4 Chandan Singh and P. W. 5 Tokam
Singh is that they did not have any conversation with either Jai Devi or the appellants. The prosecution has tried to show that these (appellants) were the persons who had committed the crime and the circumstance of the appellants leaving the houses being used against them. Admittedly, no one has seen the appellants committing the crime This circumstance along cannot be sufficient when Buijanti wife of Nahar Singh who is niece of Chandan Singh was also present in the house Even no witness has supported the prosecution story that they had seen Munni Devi alive alongwith the three appellants and as such the dictum of last seen together cannot in our opinion rope in the appellants It may again be mentioned that Bajainti niece of P. W. 4 Chandan , singh and another daughterinlaw of Ram Phal was present in the house as is shown in the siteplan. It appears that the place from where she was standing she has seen the incident. She has not been produced by the prosecution. Human conduct and social relationship and family feuds even do not give a clear picture of an incident. In villagers relationship between the two daughterinlaws are often strained and their revalry even prompts one of them to end their life even on petty squabbles. True such a fact is not revealing from the reo.I the courts are expected to have social background while appreciating the evidence of the witnesses. Implicit reliance cannot, thus, be placed on the truthfulness of his (P. W. 5 Tokam Singh''s) testimony which otherwise lacks in intrinsic worth. The only circumstance that he saw the appellants leaving the house in haste is neither sufficient nor reliable and is infact worthy of incredibility.
33. P.W. 7 Dr. A.P. Agrawal has conducted the postmortem examination. He has proved the postmortem report. He has admitted that the word strangulation has not been used in the report though he has said that it was not necessary as asphyxia is caused by strangulation in the light of the injuries. He has also admitted that once hyoid bone is fractured a person cannot cry or speak. Who has raised the noise is not clear nor it is emerging as to whether the deceased at the time of being strangulated had cried or had raised an alarm or was even in a position to speak.
34. P.W.8. S. I., V.P. Verma had initially investigated the case as he was posted as S.G. at police station Nibhora. He has stated that necessary formalities in regard to investigation were performed by him. He has admitted that Jai Devi appellant was arrested from the house of Mohan Singh and Kaptan Singh and has written whatever was stated by them. He admits that on the day he arrested Jai Devi the investigation was taken over from him. In his crossexamination he has admitted that besides the appellants Bajanti daughterinlaw of Ram Phal was also residing in the house. He has also stated that he did not have any information that besides Biri Singh and Nahar Singh, two other sons of Ram Phal were also residing in the house. This clearly shows that other sons of Ram Phal were reading in the house and this witness is concealing something or has not properly gone into the truthfulness of the incident, it appears that he was not properly conducting the investigation which apparently was taken over by him and handed over to the Circle Officer, Vinod Kumar Doharey (P. W, 10). This witness has not enquired about the solitary fact about the residence of the sons of Ram Phal in that very house nor did he record their statements though he made a search for them.
35. P. W. 9, Suresh Chandra so Kanhaiyalal r/o Nibhora, P. S, Nsbhora has stated that around 2022 months back Biri Singh and Ram Phal had corne to his house in village Fateh Singh along with the Station Officer, Nibhora. Ram Phal and Biri Singh had told him that he is known to police officers. They have committed a mistake in having killed bahu. This fact was revealed by this witness to the C. O. though he had assured the appellants that he would have a talk with the C. O. In his crossexamination he has admitted that he had never stayed nor resided at village Nicha Khera nor is he still residing there. He has admitted that he does not know as to how his residence has been shown in Nicha Khera as the place of his residence in the chargesheet. He has admitted that his father''s name is Kanhaiyalal. He has further categorically stated that neither his name is Surendra nor his parentage is Suresh. However, in the chargesheet one Surendra son of Suresh has been mentioned as a witness. It is thus clear that this witness was not cited in the chargesheet. He has admitted that Fateh Singh had never told him that the appellants had killed their bahu. He has further admitted that he had never given any such statement to C. O. that the appellants had committed a mistake in killing their bahu. No reliance can be placed on the testimony of this witness as he was not named in the chargesheet. It would be an error of law to place any reliance on such extrajudicial confession as is being attributed. In these circumstances it appears that the statement of P. W. 9 Suresh Chandra was not recorded by the Investigating Officer regarding the extrajudicial confession made by the appellants Ram Phal and Biri Singh to him. The statement of another person Surendra son of Suresh was recorded by P. W. 10 Vinod Kumar Dohrey. Thus, the extrajudicial confession made to P. W. 10, Vinod Kumar Dohrey by appellants Ram Phal and Biri Singh cannot be relied upon.
36. P. W. 10 Vinod Kumar, Circle Officer has admitted that he took over the investigation of this case on 12.7.85 and had recorded the statement of Fateh Singh and the witness Suresh Chand so Kanhaiya Lal. He has admitted that on 16.7.85 he was informed that the appellants had been arrested. The chargesheet was submitted on 30.7.85. It his crossexamination lie has admitted that he recorded the statement of Surendra so Suresh on 13785 at his residence in the police line. He has also admitted that one Maya Ram witness had stated before him that Biri Singh''s wife hanged herself.
37. This is the entire prosecution evidence.
38. Further, there is absolutely no evidence that after the commission of the crime the appellants had absconded. The appellants have clearly stated that at the time when Munni Devi (deceased) is alleged to have expired they were not at home. Ram Phal and Biri Singh have stated that they had gone market in village Sarangpur (villageSaharanpur) districtAgra. Appellant Jai Devi had clearly stated in her statement recorded under Section 313, Cr. P. C. that she had gone to the house of her father in village Kachpura, districtAgra on the date of the incident. In any case there is absolutely no evidence that the accused after the commission of the crime had absconded.
39. In view of the cardinal principles laid down by the Supreme Court and considering the view of Supreme Court in its celebrated judgment of Sharad v. State of Maharashtra (supra) it is difficult that the prosecution has succeeded in making out any case. Neither there is any extrajudicial confession in this case nor there is any evidence against the appellants which may hold them guilty. Further, motive has not been proved in this case and motive cannot be extracted from extraneous circumstances. The circumstantial evidence which has been led in this case also does not conform to the law as laid down by the Supreme Court as there is not even single circumstance which may conclusively establish the guilt of the appellants.
40. It is also a very significant feature in this case that it cannot be determined as to which of the appellants allegedly strangulated the deceased to death.
41. In view of the above discussion this appeal deserves to be allowed.
42. In the result the appeal succeeds and is hereby allowed. The conviction and sentences awarded to the appellants are hereby set aside. The appellants are in jail. They shall be released forthwith unless wanted in any other case. Reference made by the Sessions Judge for the confirmation of the death sentence awarded to the appellants is hereby rejected.
