The appeal by the two appellants before us questions the correctness and legality of the impugned judgment dated 23.05.2011 passed by the learned Additional Sessions Judge, Maharajganj convicting and sentencing the appellants for having committed the offences under Section 304-B I.P.C. with life imprisonment, under Section 498-A I.P.C. for two years Rigorous Imprisonment and Rs.5,000/- each as fine. They have also been convicted under Section 4 of the Dowry Prohibition Act for 1 year Rigorous Imprisonment coupled with a fine of Rs.2,000/- each and in default of payment of fine both the appellants are to undergo six months' imprisonment additionally. All the sentences are to run concurrently.
The appellant no.1 Satish Kumar @ Pintu is still in jail whereas the second appellant namely, Bhanmati who is stated to be more than eighty years of age, is on bail.
The prosecution has brought on record the information tendered by the appellant Satish Kumar @ Pintu about the incident having taken place on 14.07.2007 between 5.00 p.m. to 7.00 p.m. This narration was made and entered the next day in the General Diary as report no.9 on 15.07.2007 at 6.50 a.m. The distance of the police station concerned namely, Purandarpur, district Mahrajganj is one and half kilometers from the place of occurrence namely, village Soharwaliya Khurd. This entry of the General Diary has been proved by PW-7 Moti Prasad, the Constable on duty who has made the aforesaid entry. The narration of this entry is available on the lower court record and has been categorically extracted in the second paragraph of the impugned judgment.
The information discloses that the appellant no.1 Satish Kumar @ Pintu came out of his house at about 5.00 p.m. for a stroll towards Soharwaliya crossing in the same village where the incident has taken place and returned back after two hours whereupon he found that his wife Smt. Madhuri, aged about 22 years had died of burn injuries and her dead-body was available at his residence. He requested for the information to be taken notice of and for taking of further action.
On the strength of this information which was tendered on the next day after the incident in the morning, Shri Shivpoojan Yadav, Sub-Inspector of Police accompanied by Rajendra Yadav and Yogendra Singh, Constables were despatched for preparing the inquest report. The inquest was carried out between 7.20 a.m. and 9.20 a.m. in the presence of the witnesses of the inquest which includes both the appellants. The other witnesses to the inquest are the mother of the deceased namely, Bhanmati, w/o Bandule, Puran and Asharfi. The witnesses therefore appear to be related to each other as is evident from their parentage and identity.
The inquest report was prepared expressing the opinion that death had occurred on account of burn injuries and the position of the dead-body was also indicated therein as having been burnt with bangles intact in the hands of the deceased with scattered pieces of burnt clothes lying there. Her other metal ornaments were also described therein. The body was despatched by the Sub-Insperctor of Police, Shivpoojan Yadav who has deposed as PW-8 for conducting the autopsy which was carried out on the next day, i.e. 16.07.2007 at about 3.00 p.m. by Dr. Sanjeev Kumar Singh who has deposed as PW-9.
The post-mortem report is revealing. It indicates a single head injury on the left side and clotting of blood was found that extended to the brain. No soot or carbon particles were found either in the trachea or larynx. The burn injuries were noted and the cause of death indicated was hammeroge due to ante-mortem injuries. The burn injuries were categorized as post-mortem injuries.
Thereafter on the next day i.e. on 17.07.2007 a written report was tendered by Sita Ram PW-1, who is the maternal uncle of the deceased alleging therein that his niece, the deceased Smt Maduri was wedded to the appellant no.1 Satish Kumar @ Pintu who along with his aunt (Mausi) Bhanmati used to harass the deceased and also had beaten her. About fifteen days ago his niece had on telephone informed him at Bombay tha
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t her husband namely, the appellant no.1 Satish Kumar @ Pintu always imputed motive and criticized her carrying the child of some other person and for that reason he used to physically assault her. The written report which was registered as first information report also narrates that he received the information on 15.07.2007 from his relative that his niece has died due to burn injuries. On hearing this he accompanied Bhanmati, the mother of the deceased and took her to village Soharwaliya Khurd where he saw his niece dead and her body being in a burnt state. The first information report also states that it was on account of harassment caused by the two appellants that she died of burn injuries. The information was being tendered after the post-mortem and the last rites were performed.
The investigation was carried out and it appears that on 15.07.2007 the recovery of a glass and one match-box in the presence of two witnesses Rajram Vishwakarma and Moharram was made by the Investigating Officer and the remains of burnt clothes and other items were also recorded in the said recovery memo which was Exhibited as Ext. Ka-10.
The charge-sheet was filed against both the appellants under Section 498-A I.P.C. read with Section 304-B I.P.C. and 3/4 D.P.Act.
The Forensic Laboratory report indicating presence of kerosene oil and clothes were also tendered which is on record.
The first witness who entered the witness box was informant Sita Ram, PW-1 who is the real maternal uncle of the deceased. He has stated that the appellant no.1 Satish Kumar @ Pintu used to reside along with his aunt, the second appellant in village Soharwaliya Khurd itself. The appellant no.1 Satish Kumar @ Pintu is the original resident of village Paraskhand, police station Kulhai, district Maharajganj. Soharwaliya Khurd is the place of maternal grant-parents of the appellant Satish Kumar @ Pintu. The incident had taken place at village Soharwaliya Khurd. The deposition of PW-1 discloses that about fifteen days ago his niece had informed him on telephone that the appellant no.1 Satish Kumar @ Pintu used to castigate her and supported the first information report version. He asserted that it was the appellant no.1 who murdered his niece. The marriage of his niece with the appellant no.1 Satish Kumar @ Pintu had taken place about four years ago.
After having received intimation of the incident he got the written report prepared by Hari Lal, who is the scribe of the first information report. The said first information report was read to him and he verified the same to be the original first information report. In his examination-in-Chief he has categorically stated that since he was in immense grief and was involved in performing the last rites of his niece he could not lodge the first information report earlier and therefore the first information report was lodged later-on. He has also admitted having been interrogated by the police officials.
On cross-examination he has further stated that the parents of the appellant no.1 Satish Kumar @ Pintu used to live in village Paraskhand.
The residence of the other accused Bhanmati is at village Mehdawal where she was married and is in district Sant Kabir Nagar. She is the wife of one Pyare and they have a son from their wedlock. The son lives in Indore. He has admitted that neither Pyare nor the appellant no.2 Bhanmati come to village Soharwaliya Khurd nor were they present on the date of the incident but he says that he does not know or recognize the people at Soharwaliya Khurd. He had only gone twice to the said village while negotiating the marriage. He has disclosed that his brother-in-law lives in village Karauta who has three daughters. When he had gone for the negotiation of the marriage the appellant no.1 Satish Kumar @ Pintu was working at Bombay in a Power-loom. His residence is about approx. 40 miles (20 Kose) from the place of incident. He also used to stay in Bombay and on the date of incident he arrived at his residence from Bombay itself i.e. on 14.07.2007. He has further stated that he had also called upon the appellant no.1 Satish Kumar @ Pintu at Bombay to accompany him but both of them had come together upto Pharenda Railway Station from where they parted and went to their respective villages.
He denied having talked on mobile phone with his niece and further denied having received any complaint from her.
He further in cross-examination has improved upon his statement saying that after his arrival in village Soharwaliya Khurd the appellant no.1 Satish Kumar @ Pintu as well as number of villagers arrived on the scene. His niece had gone to the said village about 2-3 days ago to attend an invitation about which he received information from the mother of the deceased and from the parents of the appellant no.1. He further denied any complaint having been received from his niece within one year of the incident. He has further stated that no demand of dowry was made at the time of marriage as both the parties were facing poverty. He reiterated that the marriage had taken place four years hence. He also stated that the information about the death of the niece had already been given to the police station by the maternal uncle and aunt of the appellant no.1 Satish Kumar @ Pintu. In further cross-examination, he submitted that he had tendered the application/written report before the police station but he had not transcribed it. He did not know the contents of the same. He denied the suggestion of giving a false testimony on account of his being the maternal uncle of the deceased.
The second witness who entered the witness box is the mother of the deceased Bhanmati, PW-2 wife of Bandule. It is in the statement of PW-2 that the story of demand of dowry was set-up alleging that the appellant no.1 and his aunt both demanded a golden garland (Mala). She further narrates that about two years ago and then said three months prior to the incident, her deceased daughter had told her about the harassment and the conduct of her husband who used to beat her and harass her for the golden chain. She discloses the information of the incident through one Suresh a resident of the same village where the incident took place. It is after being intimated she arrived and the police took action. On cross-examination she admitted that PW-1. Sita Ram who is also her brother, and the appellant no.1 both lived in Bombay and used to earn their livelihood. The marriage of the appellant had been negotiated through PW-1 Sita Ram. Even though no transaction of dowry had taken place, yet a demand had been made at the time of marriage but since she did not have the capacity to meet any such demand therefore the marriage was performed accordingly. She also states that the appellants and PW-1 had good relations. She has further stated that after her brother PW-1 had arrived from Bombay she went to the place of incident where she found that the body had already been sent for post-mortem. They also went to Gorakhpur where the post-mortem was carried out and the body of the deceased was taken to Rajghat in Gorakhpur itself for cremation. In further cross-examination she says that she did not meet her daughter after marriage and that she saw her only after her death and the same was the position about her husband she also stated that her daughter never talked to her father.
She consulted her brother PW-1 and entrusted him with the task for taking some action against the family of maternal grand-parents of the appellant no.1 Satish Kumar @ Pintu as her daughter had died there but her brother Sita Ram did not implicate them. She denied any contrary suggestion relating to dowry or about harassment.
The third witness to enter deposition is Sri Ram alias Bandule, the father of the deceased. He in his statement indicated that the marriage had taken nine years hence. This would be relevant as it has to be seen in the context of the statement of the other witnesses as well. He has further stated that the second marriage(gauna) of the deceased had taken place one year thereafter. It is after returning from her in-laws that his daughter had informed that her husband use to misbehave with her by abusing her and also beating her. He further stated that the second appellant Bhanmati also joined in the same and made demands of a bed, a golden chain as well as other items. On having heard this, he had consoled his daughter that he will make arrangements in order to set things right. He states that he had visited his daughter's place and had tried to persuade the appellant to settle things between them, and he would satisfy his demands. He, however, stated that the appellant Satish alias Pintu wanted a hasty and immediate satisfaction of dowry and thereafter, when his daughter again came back to his house, she informed him that she had been struck in the eye by her husband as a result whereof she has sustained an injury. This fact was disclosed to him 3-4 months before when he had performed the marriage of his second daughter. He reiterated the disclosure by his daughter about demand of dowry by both the appellants and harassment and alleged that it was for this reason that his daughter was murdered. He, however, corrected his earlier statement and said that the marriage had taken place four years hence which was the statement also given before the police.
In cross-examination, he has disclosed that Sitaram, PW-1 used to stay in Bombay and he had also gone to earn his livelihood but he had returned back after a month after hearing the news of the death of his daughter. He, however, goes on to say that the appellant Satish used to reside at his village when he was married and that he did not know as to whether he had gone to Bombay or not. He had not met him at Bombay. He discloses that his brother-in-law, namely, PW-1 Sitaram had returned eight days before the incident. He stated that his daughter remained for about four years at her in-laws and that the appellant Satish alias Pintu had brought his daughter along with him for attending an invitation when he had performed the marriage of his second daughter.
He then goes on to disclose the utensils that he had gifted to the appellant at the time of his marriage and had spent a sum of Rs.5,000/- for the same. Apart from this, he had spent a sum of Rs.20,000/- in the celebrations. He categorically stated that the appellant did not demand any jewellery or any items at the time of marriage nor did his family members ever raised any such demand. But at the time of the second marriage(gauna), the appellants raised a demand of golden chain upon which he had promised to give it later on. In his further cross-examination, he has admitted that when his daughter became eighteen years of age, he performed the gauna (second marriage) and when she died she was about twenty years of age. He had not distributed any invitation card, as he is a poor person and he does not remember the date and time of the marriage as he is not literate. He has explained that he had stated about the marriage about nine years ago by only approximation because he is not well read. He came to know about his daughter having died due to burn injuries that was caused by the appellant. He does not know as to what was written in the report as he is not literate. He did not meet any Police Officer or official but his thumb impression was taken on Raniapur crossing.
He then goes on to state that he had met his daughter one month before when he had gone to attend an invitation. He has further stated that he does not remember of any statement about the disclosure by his daughter which he had narrated before the police officials. He had gone to Bombay after the marriage of his second daughter but he had not informed the police authorities about having receive the information at Bombay and he arrived on 18th July, 2007. He does not know as to how the police had made entries in the case diary. He, however, confirmed that his daughter had nowhere disclosed to his mother about any such harassment or demand of dowry because if such disclosure would have been made, her mother would have got perturbed.
About the appellant Bhanmati, he stated that she is married in village Mehdawal and she is the wife of one Pyare who has died. He has met her. The village where the incident had took place has one room mud apartment with a verandah infront thereof where his daughter had died. He, however, did not know whether the death took place inside the room or some other place as he had not seen the incident. He, however, denied the suggestion about the appellant Bhanmati not living in the village. He also denied other suggestions relating to dowry and demand.
PW-4 Moharram is the witness to the recovery of the incriminating material who has not affirmed the recovery of either the glass or other incriminating material and had stated that he signed on the recovery memo on the asking of the police officials. He further went on to embellish his statement that since appellant Satish alias Pintu was the sole heir of his maternal grand father Jaimangal, and since Bhanmati appellant no. 2 had no children and were two sisters only, therefore, Satish was living as a successor to the property in village Soharwalia, whereas his parents used to live in village Paraskhand. Appellant Bhanmati had not succeeded to any property at Soharwalia.
PW-5, Rajaram Vishwakarma is the other witness to the recovery who affirmed the recovery of the incriminating articles. In his cross-examination, he stated that he did not sign the recovery memo on the spot as he was not present when the police had arrived. He had signed the same at the police station.
PW-6 Dubey Lal is the real uncle of the deceased and brother of PW-3. He has gone a step further about the demand of dowry by adding the demand of a bicycle. On cross-examination, he stated that he did not see the incident and that he was a resident of Nepal. It is this witness, PW-6 who has stated that the last rites were performed by Satish alias Pintu. He had not given any dowry in the marriage of his niece. He was informed about the murder by the appellants after he had returned back after performing the last rites of his niece. He denied having met anybody but he disclosed the source of information as that of Suresh. He was not able to tell the date and time of marriage and denied the suggestions made by the defence.
Constable Moti Prasad was examined as PW-7 who has proved the entry of the general diary bearing Report No. 9 dated 15th July, 2007 which is the information tendered by the appellant about the incident having taken place in the evening of 14th July, 2007. Sub-Inspector of Police, Shivpoojan Yadav who prepared the inquest report has deposed as PW-8 and has proved the inquest report. He was also the Investigating Officer and he proved all the incriminating articles disclosing the source of information on 15th July, 2007. He confirmed that the appellant Satish Kumar was married to the deceased and that the appellant Bhanmati was his aunt who was married in village Mehdawal Sant Kabir Nagar.
PW-9 is one of the important witnesses, namely, Dr. Sanjeev Kr. Singh, who carried out the autopsy and who confirmed the injury as narrated hereinabove indicating the cause of death as the ante-mortem injuries.
Circle Officer, Om Prakash Singh, who submitted the charge-sheet after having endorsed the investigation and also the forensic laboratory reports deposed as PW-10.
The statement of the accused Satish under Section 313 Cr.P.C. was recorded thereafter and in the answer to Question No. 6, he categorically stated that he was not present at the time when the incident took place and he had gone to Soharwalia market. He returned from there after two hours when he came but know that his wife had died. He also denied the presence of his aunt in the village and that she was present in her original village Mehdawal.
The statement of the appellant Bhanmati was also recorded under Section 313 Cr.P.C. who stated that it was the appellant Satish who gave the information to the Police Station about the death of his wife but the investigation has been wrongly carried out. She was not present at all in the village at the time of the incident and that she was at her village Mehdawal where she was married.
The defence examined two defence witnesses, namely, Brahm Prakash and Pooran DW-1 and DW-2. Brahma Prakash in his statement disclosed that he is the husband of the village Pradhan of village Soharwalia where the incident took place. He has stated that after he came to know of the incident, he sent information to the appellant Satish Kumar and also to the appellant Bhanmati. All of them thereafter arrived and he then sent them for informing the police about the same. He deposed that the deceased had died in the same premises as shown in the site plan. He denied any property having been inherited by the appellant Satish at his maternal grand parent's place. He, however, could not disclose any information about the cause of death of the deceased. He further stated that DW-2, Pooran is the maternal uncle of the appellant Satish alias Pintu. He further stated that the appellant Satish alias Pintu is related to him as his nephew and denied the residence of the appellants in the village in question or any demand of dowry having been raised by them.
DW-2 Pooran denied any presence of the appellants in village Soharwalia and narrated that the deceased had come to his house for attending an invitation. He denied the presence of the appellants at the time of the incident, and categorically stated that appellant Satish was in the village market, whereas the appellant Bhanmati was at Mehdawal. His statement is peculiar in the sense that he admits that his insane wife and insane daughter were present at his house when the incident took place and his daughter is very tender in age. About himself he disclosed that he was transplanting rice when the incident took place. The villagers informed him about the death of the deceased which was at about 5:00 pm. When he arrived, he found the dead body of the deceased and a glass which smelt of kerosene oil. The village Pradhan dispatched information to the appellant Satish alias Pintu as also to Bhanmati. The next day, the inquest was carried out and when the inquest was being prepared, the appellant Bhanmati arrived on the scene. He further embellished his version narrating opening the door of the premises where the body was found with the aid of axes as the door was closed. On cross examination, he stated that the deceased had arrived alone at his house and that information had been sent to the parents of the deceased through the village Pradhan. He denied the suggestions of being present at home at the time of the incident.
We have heard Sri Manu Sharma, learned counsel for the appellants, Sri Ajeet Ray and Sri Jai Narain, learned Advocates for the State.
At the very outset, Sri Sharma submitted that the appellant Satish has already spent more than 11 and half years in detention and since the minimum sentence in the present case as prescribed is seven years, the Court should take a lenient view of the matter as even otherwise, the prosecution has failed to proof the case beyond reasonable doubt. For the second appellant, he submits that she is more than 80 years of age, and her implication clearly appears to be based on no credible evidence, therefore, she deserves to be acquitted.
Advancing his submissions, he contends that the appellant Satish had adduced two defence witnesses and there were no circumstances to establish in any way that he was responsible for the death of his wife. The attempt of Sri Sharma with the aid of the evidence is to demonstrate as if he was not present at the time of the occurrence, and which was the case set up before the trial court. For this, he has heavily relied on general diary report no. 9 dated 15th July, 2007, according to which, the appellant Satish informed the police about the occurrence that had taken place in the previous evening of 14th July, 2007.
To substantiate this absence from the scene of occurrence, the reliance is placed on the recital of the said information to the effect that he had gone out to stroll at the crossing of the village where he stayed for about two hours between 05:00 to 07:00 pm. This evidence is sought to be further substantiated by the depositions of DW-1 and DW-2.
DW-1 has stated that when he came to know of the incident, he sent an information to both the appellants. An inference, therefore, is sought to be drawn by learned counsel to the effect that had the appellant been present, there was no occasion for sending any message to him which establishes that the appellants were not present. He then relies on the statement of DW-2 who is the real maternal uncle of the appellant Satish and who is the owner of premises where the incident took place. The said witness has denied the presence of the appellants in his premises and has rather given a suggestion that it was only his invalid daughter and insane wife who might have been there at the time of the incident. We are neither able to accept the former or the later explanation, inasmuch as, the information to the police was given the next day in the morning by the appellant Satish Kumar. There is no explanation as to why, he did not inform the police immediately, when the burden was clearly on him, in view of the provisions of Section 113-B of the Indian Evidence Act. The prosecution being one under the provisions of dowry death, it was the duty of the appellant Satish to have given an explanation about not having taken any steps for information from the evening of 14th July, 2007 till the next day in the morning. This conduct of the appellant Satish who is the husband of the deceased, therefore, clearly establishes that he failed to discharge the burden on him on this count.
A feeble attempt was made by Sri Sharma to contend that PW-3 in his statement at one place had mentioned the duration of the marriage as having been performed nine years before and on this, he submits that the provisions of Section 304-B read with Section 113-B would not be attracted. He submits that in this background, the burden was not on the appellant to lead any evidence. In our opinion, the suggestion and the argument appears to be that at best, if it was a case of murder or any other unnatural death, then this was a case of circumstantial evidence and even otherwise, the prosecution had been unable to discharge its burden by shifting the onus on the appellant to prove the case in terms of Section 106 of the Indian Evidence Act, 1872. To dispel this, we find that the statement of PW-3 who is the father of the deceased did at one place mention the duration of marriage as nine years but he explained it subsequently and had stated it in his examination in chief that the marriage had taken only four years hence. Apart from this, the appellant Satish had led evidence by introducing two defence witnesses who nowhere deposed that the marriage had taken place beyond the duration of seven years from the date of the incident. No such effort was made on behalf of the appellant nor any of the other witnesses have suggested the same. Additionally PW-1 who is the maternal uncle of the deceased and who had negotiated the marriage has also corroborated the fact that the marriage had taken place four years before the date of the incident. This being the deposition, the contention of Sri Sharma on this ground deserves rejection and we hold that the marriage according to the prosecution version had taken place only four years before the date of the incident. This, therefore, leads to the conclusion that the provisions of Section 113-B were clearly attracted on the facts of the present case, and the burden was clearly on the appellant Satish to discharge the onus by leading any evidence to that effect.
The appellant Satish has nowhere been able to establish from any evidence as to with whom was he roaming at the crossing between 05:00 to 07:00 pm on 14th July, 2007. He did not adduce evidence of his presence at the crossing or any shopkeeper or any bystander who could have independently established the presence of the appellant at the crossing. In our opinion, this statement which was made on the next day and has been entered in the general diary was an advised flimsy alibi that did not have any legs to stand.
The presumption that the appellant Satish was present when the incident occurred therefore could not be rebutted successfully either before the trial court or before this Court on the strength of any cogent evidence. We are therefore impelled to believe that the appellant Satish was very much present when the incident took place.
We now proceed with the states of the seat of injury as has been described in the postmortem report. The same appears to be an outcome of a single hard blow with some blunt object which may or may not have been account of any heated exchanges and may have been a deliberate act on the part of the appellant but the outcome thereof was clearly fatal. The postmortem report and the testimony of the doctor PW-9 Sanjeev Kumar Singh clearly corroborates the time of the incident and the cause of death which is an antemortem injury caused due to hemorrhage which is evidenced by clotting of the blood upto the brain. This, therefore, was clearly an act of a single individual. Coupled with this what confirms our belief is the attempt on the part of the said individual to wipe off the evidence by alighting the body with the aid of kerosene oil. This was clearly an attempt which demonstrates the intention of the assailant. The repeated act of burning of the body was therefore an overtact which was aimed at wiping off the deceased altogether, after having killed her so that no traces are left behind. The mens rea for having committed such an act is therefore clear. Had the act stopped at the striking of the blow on the head alone, it could have been a matter for assessing the intent of the person to not commit a murder, but the consequential act of disposing of the body by burning leaves no room for any doubt about the intention of the assailant. Consequently, this clinching evidence coupled with the fact that the appellant Satish has been unable to dislodge his presence at the time when the incident occurred, the only pointer that can be culled out from the principles laid down for assessing circumstantial evidence is the only probability of the involvement of the appellant alone. There are no suggestions to the contrary for us to arrive at any different conclusion.
This incident has taken place at the residence of the maternal grand parents and maternal uncle of the appellant Satish, and therefore, in view of the testimony of the witnesses that he used to reside in village Soharwalia clearly indicates that the deceased was in the exclusive company of the appellant in the premises, which is a one room hutment, at the time of the incident from where the body was found. There is no other suggestion or material that may warrant us to conclude that the death of the deceased had taken place somewhere else. The house may have been of the maternal uncle, but the company of the appellant with the deceased is established. Even assuming for the sake of arguments that they had gone to attend an invitation, it is all the more probable that in the evening hours of a village life, the husband and wife usually spend their time together. The appellant as noted above has been unable to establish his presence at some other place with any cogent evidence at the time of the occurrence. The entry in the general diary on which reliance has placed is therefore only a ploy that appears to have been set up to shield the appellant no.1 from a possible prosecution.
This being the conclusive position of the evidence, we see no further reason to enter into any other material that is sought to be criticized by Sri Sharma for disbelieving the prosecution story, inasmuch as, this part of the evidence being unimpeachable and uncontroverted, the issue with the regard to the relationship, and the minor inconsistencies in the statement of the other witnesses cannot be a ground to discard the genesis of the prosecution pertaining to the conviction of the appellant Satish.
One of the defences that had been set up was that the appellant had very honestly cooperated in the entire incident, was a witness to the inquest report and had also performed the last rites of his wife. We may observe that the inquest report is not an evidence with regard to the presence of the appellant Satish at the time of the incident, which occurred on 14th July, 2007. The inquest report was prepared on 15th July, 2007. Merely because the appellant is a witness to the inquest does not justify or in any way support his absence at the time of incident which has not been established as discussed hereinabove. The performance of the last rites would not be an evidence to believe that no offence has been committed by the appellant, when he has been unable to come forward with any plausible explanation. It is possible that having realized that some untoward act had been committed by him, he may have attempted to give a cover to his past actions which at the best can be only a deception and not a proof of his innocence. Thus, the aforesaid proposition on the part of the appellant also deserves to be discarded.
Coming to the involvement of the appellant no.2, the prosecution story is that she had also participated in harassing the deceased, and had also participated in the commission of the offence leading to the murder of the deceased. For this, we may point out that even though, the allegation of demand of dowry has been made against the said appellant, yet we are unable to find this allegation supported by any other corroborative material, inasmuch as, it has been stated that she was married to one Pyare and living at Mehdawal. It is also on evidence that she has a son. The prosecution witness alleged and which appears to have been an embellishment that the appellant no.1 was living with his aunt, the second appellant, as she had adopted him. This theory is unbelievable in the wake of the evidence that the appellant Bhanmati has a son.
It was next suggested that she used to live in village Soharwalia itself, as she had sold her property at Mehdawal. There was no evidence adduced by the prosecution to demonstrate that she had sold her property at Mehdawal and had permanently shifted to this village. This therefore, discredits the version of the prosecution through its witnesses that she was a resident of this village and not of her own village Mehdawal. There is no evidence as to when she arrived at Soharwali before the incident.
It is correct that she is a witness to the inquest report. It is evident that she must have also received information and might have arrived on the date when the inquest report was prepared but this by itself is no conclusive proof of the fact that she was also present when the incident occurred. As contrasted with the evidence of the first appellant Satish, Satish had himself set up a case that he had gone to the crossing of the village when the incident occurred. Consequently, there is no doubt about the presence of the appellant Satish but no such evidence is forthcoming in relation to the appellant Bhanmati wife of Pyare about whom there is no convincing and clinching evidence to fix her presence at the time of the incident or her participation.
This is also clear from the fact as discussed above that the postmortem report reflects is a single blow. It is, therefore, difficult to believe that a 76 year old lady would have made an impact with any such heavy blunt weapon which could be possible only by the appellant Satish and not by her. Thus, she cannot be presumed to have caused the assault leading to the death of the deceased which is the established cause of death due to antemortem injuries. There was, therefore, neither any mens rea nor any overtact of the appellant no.2, on the basis whereof she can be held responsible for the death of the deceased.
Further there is no indication of her residing in the premises or having either supplied the kerosene oil or the glass which appears to have been utilized for burning the body of the deceased. Had the intention been to murder the deceased, the appellant Bhanmati after having come to know of her death would not have attempted to finish off the body in the surrounding circumstances.
We have discussed the entire evidence and it may be apt to remember that this is a case of circumstantial evidence, and not of any direct ocular testimony. We are therefore impelled to apply the principles of law laid down by the Apex Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622. The golden principles ennunciated in the said case, if applied leave room for no doubt that on the one hand, the entire circumstances pin down the involvement of the appellant Satish, but on the other hand, clearly give a scope of reasonable doubt of the involvement of the second appellant Smt. Bhanmati. Thus, on the evidence that has been brought-forth, the demand of dowry and the cause of death even if co-related are clearly against the appellant Satish but not established against the appellant Smt. Bhanmati. The appellant Bhanmati would not even be a gainer, if a gold chain or a bed or a bicycle was demanded inasmuch as, this was only to fulfill the demand of the appellant no.1 and was not a demand of property for the enjoyment of the entire family.
An argument was advanced by Sri Sharma that the arrival of the witnesses is heavily doubtful, and this coupled with the lodging of the FIR after consultation with the Investigating Officer at the police station clearly establishes that this was a case of false implication. To some extent, this argument may have substance but it does not come to the aid of the appellant Satish in the wake of the findings recorded hereinabove.
This argument may therefore be a possible argument in favour of the second appellant Smt. Bhanmati whose implication may have been on the basis of doubts that the informant or the parents of the deceased had in their mind. The implication of a person on a mere suspicion therefore cannot be a ground of conviction. Accordingly, even though such an argument with regard to the FIR being lodged on the third day of the incident does not come to aid of the appellant Satish who himself has already given the information to the police on the very next day of the incident, the lodging of the FIR or any argument of delay therefore will not help the appellant Satish but it does cast a doubt the implication of the appellant Smt. Bhanmati. The arrival of the witnesses and the distance of their residence is meaningless even if there are minor discrepancies in the same, in the light of what we have discussed hereinabove.
We therefore find that the trial court committed an error in assessing the evidence relating to the second appellant Smt. Bhanmati, and omitted to consider the heavy probabilities in favour of her that clearly lead to a reasonable doubt about her involvement in the incident.
Apart from this, the appellant Bhanmati is more than 80 years of age. It is true that the age of an accused cannot be a reason for be absolution from the crime but on the facts of the present case, this additionally weighs in our mind to acquit the appellant Bhanmati.
Consequently, for all the reasons recorded hereinabove, we affirm the judgment of the trial court, in so far as, the appellant Satish Kumar @ Pintu is concerned, and set aside the same, whereby the second appellant Smt. Bhanmati wife of Pyare has been convicted. Therefore, the appeal is partly allowed.
Sri Sharma also advanced his submissions, on the issue of sentence of the appellant Satish Kumar. As noted above the conduct of the appellant did not stop short of having administered the blow that led to the antemortem injury causing the death of the deceased. He further appears to have lit the body and attempted to destroy all evidence utilizing the said act as a decoy to paint the picture of some other type of unnatural death. This deliberate intention therefore aids his initial conduct of having assaulted his wife. We cannot treat his suspected anger or any heated moment with his wife to dilute this intent as there is no evidence to that effect. It is quite possible that he may have committed the offence in a fit of rage but the subsequent act of immolating the body is a savage out rage. This therefore does not call for any sympathy so as to reduce the sentence awarded to the appellant Satish by the trial court. We accordingly, confirm the sentence of life imprisonment, and the other punishments awarded to him to be served out as per the directions of the trial court.
The appeal is accordingly partly allowed. The appellant no.2 Bhanmati stands acquitted of the charges, and her bail bonds shall stand cancelled. The appellant no.1 Satish Kumar is serving out the sentence and he shall continue to do so accordingly.