JUDGMENT
R.M. Lodha, J.
1. Yet another young woman, aged about 23 years has died within 2 1/2 months of her marriage at the husband’s house. Her death is accidental or suicidal or homicidal, is the question and if homicidal who is responsible.
2. Deepak Narayanappa Tewere (accused No. 1-husband), Suresh Narayanappa Tewere (accused No. 2-husband’s brother), Dattatraya Narayanappa Tewere (accused No. 3-husband’s brother), Smt. Vatsalabai w/o Narayanappa Tewere (accused No. 4-husband’s mother), Smt. Sulochana Keshaoappaa Bare (accused No. 5-husband’s sister), Smt Triveni Suresh Tewere (accused No. 6-wife of husband’s brother Suresh, accused No. 2) and Smt. Prabha Vijayappa Ruikar (accused No. 7-husband’s sister) were charged of the offences under Section 302. I.P.C. or under Section 302 read with Section 34, I.P.C, Section 201, I.P.C. or under Section 201 read with Section 34, I.P.C. and under Section 498A, I.P.C. or under Section 498A read with Section 34, I.P.C., by the Additional Sessions Judge, Washim on 4-2-1993 and the charges read as under :-
“That, on or about 22nd April 1992 at 4-40 a.m. at Burudpura, Karanja within the jurisdiction of Karanja Police Station, you accused either individually or in furtherance of common intention committed murder of Usha w/o Deepak Teware, R/o Karanja and thereby committed an offence punishable under Section 302, I.P.C., simplicitor or under Section 302 r/w 34, I.P.C and within my cognizance.
At the same time and place and in the course of the same transaction, you accused either individually or in furtherance of common intention knowing that certain offence, murder of Usha W/o Dipak, punishable with death has been committed, did cause certain evidence of the said offence to disappear to wit-burnt deadbody of Usha, with the intention of screening yourself from legal punishment and thereby committed an offence punishable either under Section 201, I.P.C., simplicitor or under section 201 r/w 34, I.P.C. and within my cognizance.
Prior to the aforesaid date and at the same place you accused either individually or in furtherance of common intention, subjected Usha W/o Dipak to cruelty by harassing and illtreating her and your wilful conduct which was of such a nature, as was likely to drive ithe said woman to commit suicide or to cause grave injury to her life limb or health and thereby committed an offence punishable under Section 498A, I.P.C., simplicitor or under Section 498A r/w 34, I.P.C. and within my cognizance”.
3. The prosecution story unfolded during the trial is that Ushatai, resident of Nandurbar, got married with the accused No. 1 Deepak on 9-2-1992 at Murtizapur. Ushatai did not have father and as such, her mother Smt. Sumanbai (P.W. 2) was living at her maternal place at Nandurbar. The marriage was got settled by Purushottam Laxmanappa Teware (P.W. 1), resident of Murtizapur and Shivlingappa Sadashivappa Pimple (P.W. 3). In the marriage, Smt. Sumanbai, mother of Ushatai spent Rs. 10,000/- and rest of the amount was spent by Purushottam Laxmanappa Teware (P.W. 1). About 10 days after the marriage, Ushatai alone came to the place of Purushottam (P.W. 1) at Murtizapur and told him that she was being ill-treated by the accused for the demand of Rs. 10,000/- and then Purushottam (P.W. 1) called Sumanbai (P.W. 2), mother of Ushatai from Nandurbar an then Ushatai was sent to her matrimonial home at Karanja. about one month thereafter Ushatai and Deepak (accused No. 1) came to Nandurbar and Ushatai started weeping. Accused No. 1 Deepak demanded the amount which could not be given by Smt. Sumanbai (P.W. 2) and then Deepak (accused No. 1) left Suman’s place angrily with Ushatai.
4. Purushottam (P.W. 1) received information at about 6.00 O’ clock on 22-4-1992 from the Police Station, Karanja about the death of Ushatai and on receipt of such information, Purushottam, his wife and Shivlingappa (P.W. 3) left for Karanja and reached there and they found that Ushatai’s body was substantially burnt and she was lying dead on the table in the hospital. Purushottam (P.W. 1) then went to Police Station, Karanja and lodged his report (exhibit 78) and one the basis of the said report, First Information Report was drawn at Police Station, Karanja which is at exhibit 87). On the said report, crime under Sections 498A, 306 read with Section 34 of the Indian Penal Code was registered against Deepak (accused No. 1) and Smt. Vatsalabai (accused No. 4). On post-mortem of body of deceased Ushatai having been done by Dr. C. S. Khatri, it transpired that Ushatai had died not due to burn injuries, but due to throttling. The Post-mortem Report (exhibit 84) which was prepared and drawn by Dr. C. S. Khatri (P.W. 5) revealed that Ushatai died because of respiratory failure, due to throttling and according, the case was registered under Sections 302, 201 and 498A read with Section 34 of I.P.C., against all the accused persons.
5. It would not be out of place to mention here that accused No. 2 Suresh Teware made a Murg Report (exhibit 63) on 22-4-1992 at 4.45 a.m. at Police Station, Karanja which was registered as Murg Report No. 10/92 under Section 174, Cr.P.C. In the said murg report, accused No. 2 Suresh stated that his brother Deepak who was married with Ushatai before 2 1/2 months and in the night of 22-4-1992 when he was sleeping, he heard the sound of cry of his brother’s wife Ushatai and brother Deepak at 4.00 O’ clock in the night and hence he woke up. He found that the clothes on the person of Ushatai were burning and to extinguish the fire, bed was put on her person. They took Ushatai to the Government Hospital where Dr. Khatri saw her and told that she has died. On the basis of the said murg report, R. P. Manware, P.S.I. Police Station, Karanja prepared Inquest Panchanama (Exh. 65) at Municipal Hospital, Karanja between 9.30 a.m. 10.30 a.m. on 22-4-1992 in the presence of Smt. Nirmalabai Shiolingappa Raut and Balchandra Shankarrao Bhuzadle. The Police report was forwarded to the Civil Surgeon with the dead body sent for post-mortem examination vide exhibit 66.
6. R. P. Manware, P.S.I. also prepared Spot Panchanama (Exhibit 91) in the presence of Bhalchandra Shankarrao Bhujadle and Nirmalabai Shiolingappa Raut between 11.10 O’ clock and 12.20 O’ clock on 22-4-1992. The Police also seized towel and shirt of accused Deepak on 26-4-1992 at 10.30 a.m. vide seizure memo (Exhibit 70) in the presence of two panchas. The said Police Sub-Inspector also seized by opening a sealed bundle of clothes brought from the Municipal Hospital, the blouse of black colour, one white coloured bacier, one greenish coloured Jangya, one cotton petticoat of blueish colour, some pieces of faint green bangles, two rings of yellowish metal like gold, one nose ornament of the metal like silver and two broken pieces of brass bangles vide seizure memo (Exhibit 71). The said seized articles were sent to the Regional Forensic Science Laboratory, Nagpur and the Chemical Analyser submitted his report (exhibit 69) on 7-8-1992.
7. On completion of investigation, accused persons were charge sheeted and since the offences were exclusively triable by the Court of Sessions, they were committed to the Court of Sessions. As stated above, the accused persons were charge-sheeted for the offences punishable under Sections 301, 201 and 498A read with Section 34 of the Indian Penal Code to which the accused pleaded not guilty. The prosecution produced P.W. 1 Purushottam Laxmanappa Teware (Exh. 77), P.W. 2 Smt Sumanbai Bhagwanappa Kanose (Exh. 79), P.W. 3 Shivlingappa Sadashivappa Pimple (Exh. 80), P.W. 4 Dnyaneshwarappa Ganpatrao Pimple (Ex. 81), P.W. 5 Dr. Chhaganlal Shankaralal Khatri (Ex. 83) and P.W. 6 Rajendra Pundlikrao Manware (Ex. 86), besides the documentary evidence.
8. The statements of accused persons were recorded under Section 313, Cr.P.C. Accused No. 1. Deepak also filed written statement on 23-3-1993 (Exh. 92). In this written statement filed by accused No. 1 Deepak, it was submitted by him that he married with Ushatai at Murtizapur on 9-2-1992; there is no dowry system in their community; the financial condition of the mother-in-law is too weak and Purshottam incurred expenditure for the marriage; after marriage Ushatai never went to Murtizapur till the occurrence had taken place nor Ushatai and he went to Nandurbar; none of the accused persons harassed Ushatai or demanded money; false case has been registered at the instance of Purushottam since he demanded the expenditure but the accused persons refused to give the same; his sisters Sulochana and Prabha had come to the place of his brother Suresh before one day of the occurrence of the incident to attend the marriage of cousin brother of Purushottam; he and his wife were residing in one room, the other persons of the house reside in the other room and since it was summer, all other members were sleeping out; he woke up Ushatai at about 4/4.30 O’ clock in the morning and asked her to prepare tea and get ready since they had to go to Murtizapur to attend the marriage; while igniting to stove Usha got flared all of a sudden and when she screamed he woke up and cried loudly and made an attempt to extinguish fire on her and as a result thereof, he also sustained burn injuries; due to his cry the other family members woke up and they also made attempt to extinguish fire on Usha; because of blazing and frightening Ushatai tried to run out of house and in the trumble she fell down on the rafter adjacent to the door on account of which an injury might have been caused to the throat; hundreds of rafters and bamboos were lying in front of and adjacent to their room and if the same had been burnt several houses in the neighboured might have been burnt and the prevent explosion, somebody took out the cover of the stove and threw it by the side. Thereafter Ushatai was taken to the hospital.
9. The learned Additional Sessions Judge, Washim after considering the entire evidence on record, held that the prosecution has established that accused Nos. 1 to 4 and 6 in furtherance of their common intention had committed murder of Ushatai and caused disappearance of the evidence to screen themselves from legal consequences by making show of burnt injuries and they had extended cruelty to the deceased and hence held them guilty for the offences punishable under Sections 302, 201 and 498-A read with Section 34 of the Indian Penal Code. The learned Additional Sessions Judge extended benefit of doubt to the accused Nos. 5 and 7, and hence acquitted them. The learned Additional Sessions Judge after holding the accused Nos. 1 to 4 and 6 guilty for the said offences, sentenced them to suffer imprisonment for life for the offences under Section 302 read with Section 34, I.P.C. The accused Nos. 1 to 4, and 6 were sentenced bo suffer rigorous imprisonment for three years and to pay a fine of Rs. 3000/- each and in default to suffer further rigorous imprisonment for six months. The learned Additional Sessions Judge also awarded the accused Nos. 1 to 4 and 6 sentence to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3000/- each and in default to suffer further rigorous imprisonment for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code. The substantive sentences were ordered to run concurrently.
10. Accused No. 1 Deepak (appellant No. 1), accused No. 2 Suresh (appellant No. 2), accused No. 3 Dattatraya (appellant No. 3), accused No. 4 Smt. Vatsalabai (appellant No. 4), and accused No. 6 Smt. Triveni (appellant No. 5) have filed the present appeal under Section 374(2) of the Code of Criminal Procedure 1973 challenging the judgment of conviction and sentence dated 31-3-1993 passed by the Additional Sessions Judge, Washim in Sessions Trial No. 3 of 1993 State of Maharashtra v. Deepakand others against them.
11. Shri S. V. Manohar, the learned counsel for the accused/appellants who appeared before us, strenuously urged that there was no direct evidence led by the prosecution to establish offence against the accused. The circumstances which have been pointed out by the prosecution and held to be sufficient by the learned trial Court do not prove guilt of the accused/appellants because the circumstances from which the conclusion should be drawn have not been fully proved and do not exclude innocence of the accused persons. Shri Manohar submitted that the facts and the circumstances sought to be established by prosecution are not consistent only with the hypothesis of guilt and inconsistent with innocence and that the defence which has been set out by the accused/appellants is probable and for that benefit has to be given to the accused/appellants. The argument of the learned counsel for the accused/appellants is that first and foremost circumstance of motive relating to demanding or harassment to deceased Ushatai is not at all established and is not believable. He submitted that financial condition of the mother of Ushatai was very weak and that was known to all concerned and, therefore, question of demand of dowry from her did not arise.
12. The learned counsel for the accused/appellants also submitted that there is variance in the evidence regarding the demand of dowry in the statements of P.W. 1 Purushottam and P.W. 2 Sumanbai. Shri Manohar also submitted that there was no evidence of ill-treatment of deceased Ushabai by accused/appellants. The learned counsel for the accused/appellants also submitted that the second important circumstance that death of deceased Ushatai took place because of throttling and not by burn injuries is also not established by the prosecution. In this connection, he referred to Spot Panchanama, Injuries on the person of the accused No. 1 Deepak, seizure memo of clothes of accused Deepak, conduct of accused/appellants in taking deceased Usha to the hospital immediately on occurrence of the incident, conduct of accused No. 2 Suresh in lodging the report immediately at 4.45 a.m. at Police Station, Karanja about the incident and the saree pieces struck at two places on the walls. Shri Manohar also submitted that all the circumstances which are sought to be used by the prosecution against the accused/appellants have not been put to them and, therefore, cannot be used. By referring to the medical evidence, the learned counsel for the accused/appellants submitted that the post-mortem report and the medical evidence of Dr. Khatri do not establish that Ushatai died dued to throttling because Dr. Khatri in his statement has admitted that if a particular part of cartilage and hyoid bone have been struck against balli then there could be a fracture of that portion and since the defence of the accused/appellants is that when Ushatai got burnt from the stove, she tried to run out of the house and in the trumble she fell down on the rafter and on account of that, she might have received injury on throat resulting in fracture of hyoid bone. Thus, according to Shri Manohar, the learned counsel for the accused/appellants, the prosecution has not been able to establish guilt of the accused/appellants beyond reasonable doubt and, therefore, they are entitled to acquittal. In the alternative, the learned counsel for the accused/appellants submitted that in any case so far as accused/appellants No. 2, 3, 4 and 5 are concerned, their complicity has not at all been established by the prosecution and it has not been proved by the prosecution that these accused have any role to play or the murder of deceased Ushatai was committed in furtherance of their common intention and, therefore, so far as accused/appellants 2, 3, 4 and 5 are concerned, they are entitled to be acquitted.
13. Shri Habibuddin Ahmed, the learned A.P.P. vehemently countered the arguments submitted by the learned counsel for the accused/appellants by referring to each and every circumstance pointed out by the prosecution during trial and submitted that all circumstances from which the conclusion is drawn have been fully proved by the prosecution and all those facts so established are consistent with the hypothesis of guilt and inconsistent with the innocence and exclude the possibility of guilt of any person other than the accused. Shri Ahmed thus supported the findings recorded by the Trial Court and urged that all the accused/appellants have been rightly convicted of the offences under Sections 302, 201 and 498A read with Section 34 of the Indian Penal Code and the sentence awarded to them does not call for any interference in appeal by this Court.
14. To appreciate the rival contentions of the parties properly, it would be advantageous to refer to external injuries found on the person of dead body of Ushatai in the post-mortem report, which are as follows :-
“(1) Mild to moderate degree of burn injuries were seen all over the body, except both feet and scalp. There was no line of redness, and vasication.
(2) There was extra vecession of the blood seen into the subcuteneous issue of the neck and in the adjacent marks of the neck, around the thyoroid cartilage. There was laceration of muscles of neck, on both the sides.
(3) There was fracture of corne of hyoid bone”
It would also be relevant to refer to the following other columns of the post-mortem report :-
"13. Features. - Whether natural Fact is flatty and or swollen, state of eyes, conjusted, eyes position of tongue : nature half-closed and prominent. of fluid (if any) oozing from The conjuncture of mouth, nostrils or ears. eyes are congested. Pupil dilated tongue swollen and dark in colour. Burn injuries are seen in whole face. "14. Condition of skin-marks of blood Burn injuries mild to etc. In suspected drowning the moderate severe degrees presence or absence of cutes seen all over the skin anserina to be noted. except foot and scalp. 18. Other injuries discovered by external examination or palpation as fractures etc. (a) Can you say definitely that the The injury No. (1) is injuries shown against Serial post mortem injury and Nos. 17 and 18 are antemortem injury Nos. (2) and (3) injuries ? are antemortem injuries. III. Internal Examination. 19. Head - (i) Injuries under the scalp, nil their nature (ii) Skull-Vault and base-describe Normal fractures, their sites, dimensions, directions etc. (iii) Brain - The appearance of Brain is peramic its coverings, size weight and general condition of the organ itself and any abnormality found in its examination to be carefully noted (weight M. 3 gram E. 2.75 grams) 20. Thorax - (a) Walls, ribs, cartilages Normal (b) Pleara ) They are congested and contain frothey muai. (c) Larnyx, Trachea and ) Bronchi (d) Right Lung ) They are edemators and congested. They exclude frothey fluid (e) Left Lung ) (f) Pericardium Left side is empty and rt. side is full. They contain congulated fluid. (g) Heart with weight (h) Large vessels (i) Additional remarks 21. Abdomen : Walls Peritoneum Cavity Congested Bucal Cavite, teech tongue Tongue swollen and Pharynx Desophagus Stomach and its contents Empty and congested."
15. Dr. C. S. Khatri (P.W. 5) in his statement before the Court categorically stated that injury No. 1 (burn injury) was post-mortem and injuries 2 and 3 were ante-mortem injuries. He further stated that the death of Ushatai was due to respiratory failure due to throttling and injuries 2 and 3 were sufficient in the ordinary course of nature of cause death. In his cross-examination Dr. Khatri emphasised that the death was due to asphyxia and in the present case due to the absence of redness and of vassication, he came to the conclusion that the burns were post-mortem. He denied the suggestion that his opinion of death by throttling is not correct and proper.
16. In the present case there is no direct evidence led by the prosecution and the guilt of the accused persons has been sought to be proved by circumstantial evidence. There are series of decisions of the apex Court as well as of this Court so eloquently and ardently profounding the cardial principle to be followed in cases in which the evidence is purely of circumstantial nature. Without multipling the authorities, we may straight-way come to the essential ingredients which are required to be proved to prove the guilt of the accused persons by circumstantial evidence, they are –
(1) The circumstantial from which the conclusion is drawn should be fully proved.
(2) The circumstances should be conclusive in nature.
(3) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence.
(4) The circumstances should, to moral certainty, exclude the possibility of guilt of any person other than the accused.
17. The circumstantces which are established by prosecution as having closely linked up with one another after going through the entire evidence in the light of the arguments advanced before us are :-
(i) There is no doubt that when the incident occurred on 22-4-1992 in its early house, there was no outsider in the house, where the incident took place.
(ii) P.W. 1 Purushottam has stated that after about ten days of marriage, Ushatai had come alone to his place at Murtizapur and she told him that she was being ill-treated by the accused for demand of Rs. 10,000/- and then the mother of late Ushatai was called from Nandurbar and after persuading her, Ushatai was sent back to matrimonial home. His evidence is duly corroborated by P.W. 2 Sumanbai and P.W. 3 Shivlingappa. P.W. 2 Sumanbai has further stated that Ushatai complained to her about the ill-treatment at the hands of accused and about the demand Rs. 10,000/- when she went to Murtizapur on being called by Purushottam. But after about one month Ushatai and Deepak came to Nandurbar and at that time, her daughter was weeping and accused Deepak demanded amount from her which she could not give and then accused Deepak left her place angrily with Ushatai. Thus, so far as ill-treatment by accused Deepak is concerned, it is well established on record and, therefore, the motive of crime which is one of the important links in circumstantial evidence, has been established. The argument of the learned counsel for the appellants that the financial condition of Sumanbai was weak and, therefore, there was no question of demand of a sum of Rs. 10,000/- from her, cannot be sustained in view of the unshaken testimony of P.W. 1 Purushottam, P.W. 2 Sumanbai and P.W. 3 Shivlingappa on the point of ill-treatment by Deepak.
(iii) There cannot be and there is no dispute that the place where tragic incident took place, was in possession and occupation of accused No. 1 Deepak (appellant No. 1). P.W. 1 Purushottam had stated in his statement that except accused Nos. 5 and 7, all other accused stay joint in two room premises. The accused/appellants in their statement under Section 313, Cr.P.C., have also admitted that they stay joint in two room premises. The room in which the incident took place was admittedly shared by accused/appellant No. 1 and deceased Ushtai. At the time of incident, thus, deceased was in the custody of accused/appellant No. 1 Deepak.
(iv) The incident took place in the early hours at about 4/4.30 a.m. on 22-4-1992 when nobody else would have had ingress at the place where the incident occurred and in fact, according to the Written Statement filed by the accused/appellant No. 1 also, he and Ushatai were occupying room where the incident took place at the relevant time.
(v) According to the medical evidence as has been borne out from the post-mortem report and the evidence of Dr. C. S. Khatri (P.W. 5) (Ex. 83) the external injuries found on he person of dead body of Ushatai were mild to moderate degree of burn injuries and were seen all over the body except on both feet and scalp and there was no line of redness and vesication. Dr. Khatri also found that there was extra vecession of the blood seen into the subcuteneous issue of the neck and in the adjacent marks of the neck, around the thyoroid cartilage. According to him, there was laceration of muscles of neck on both the sides and that there was fracture of corno of hyoid bone. According to Dr. Khatri, the burn injuries were post-mortem while the other injuries were ante-mortem and Ushatai died due to asphyxia which was resulted due to throttling and that was sufficient in the ordinary course of nature to cause death. The fact that there was extra vecession of the blood seen into the subcuteneous issue of the neck and in the adjacent marks of the neck around the thyoroid cartilage and the laceration of muscles of neck on both the sides clearly rules out the defence set up by the accused persons that the hyoid bone got fracture when Ushatai tried to run out of house because of blazing and frightening in the trumble fell down on the rafter adjacent to the door. If Ushatai had fallen on the rafters, as suggested by the defence, question of laceration of muscles of neck on both the sides did not arise. The very fact that there was extra vecession of the blood seen into the subcuteneous issue of the neck and in the adjacent makrs of the neck, around the thyoroid cartilage and that there was laceration of muscles of neck on both the sides and fracture of corno of hyoid bone, showed that there was pressing of neck on both the sides and such injury could not be caused by fall. Moreover, it has come on record that the ballies, rafters and planks were lying in verticle position and, therefore, no such injuries could be caused by fall on the rafters lying verticle. Even otherwise, the face being protruding part of the body, the throat cannot come in contact with the rafters lying vertically and causing such injury which has been caused on the person of deceased Ushatai. Further, the fracture of corno of hyoid bone also normally cannot be caused by striking against ballies which were lying vertical. The argument of the learned counsel for the accused/appellants that P.W. 5 Dr. C. S. Khatri has admitted in his cross-examination that if a particular part of cartilage and hyoid bone has been struck against the balli then there could be a fracture of that portion and, therefore, the defence version should be belived that Smt. Ushatai while trying to run out of the house in trumble, fell down on the rafters and got injuries, could not be sustained, because the said statement made by doctor is to be general question and not on the specific point that if the rafters/ballies which are lying vertically could cause such injury if the person strikes against such rafters and ballies. On the other hand, from the post-mortem report as well as the statement of Dr. C. S. Khatri, it is established beyond doubt Ushatai died due to asphyxia caused due to throttling. The doctor’s opinion in this connection is positive and does not lead to two interpretations.
(vi) The post-mortem report further revealed that tongue of deceased was swollen and dark in colour and the face was fluffy and congested. The heart position showed that its left side was empty and right side was full which was also pointer to the fact that deceased died due to throttling.
(vii) Total burning of neck was with a view to destroy evidence of manual strangulation.
(viii) The Chemical Analyser’s Report of the clothes of deceased Ushatai also showed that there were kerosene residues found on the burn pieces of sarees. It may be observed that the kerosene residues would never be found on the pieces of clothes if Ushatai got ablazed due to stove flames.
18. It is thus well established on record that in fact deceased Ushatai died due to throttling and not because of burning and as a matter of fact, the evidence of strangulation was sought to be destroyed by accused/appellant No. 1 by pouring kerosene and ablazing her. All the acts of the acucsed/appellant No. 1 by showing burn injuries on his person, on his clothes, the burn pieces of saree struck on the wall, burn part of quilt etc. were intended to set up a false defence that Ushatai’s death was accidental and she died of burn injuries. A false plea set up by the accused/appellant No. 1 further provides additional link to the circumstantial which have been duly established by the prosecution, which are conclusive in nature and establish beyond reasonable doubt the guilt of the accused/appellant No. 1 and exclude the possibility of guilt of any person other than the accused/appellant No. 1 In the State of U.P. v. Dr. Ravindra Mittal, , the apex Court held as under (para 20) :-
“The essential ingredients to prove guilt of an accused person by circumstantial evidence are :-
(1) The circumstances from which the conclusion is drawn should be fully proved.
(2) The circumstances should be conclusive in nature.
(3) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence.
(4) The circumstances should, to a moral certainly, exclude the possibility of guilt of any person other than the accused”.
“In the instnat case the husband was accused of committing murder of his wife. The medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. Husband’s defence was that wife committed suicide by burning herself and he was not at home at that time. However, the evidence established that both of them were in one room throughout the night. The letters written by deceased wife to her relatives from time to time showed that the husband was an alcohol adict, ill-treated her and their relations were strained. Thus the totality of the circumstantial evidence revealed that it was the accused husband who committed murder of his wife by strangulation”.
19. In Mulakharaj v. Satishkumar, , the apex Court held as under (para 17) :-
“In cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case”.
“In a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one interference (interence) that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not be quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question, the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow”.
The Supreme Court in the said volume i.e. , in the case of Ganeshlal v. State of Maharashtra, has held as under :-
“Even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction.”
20. In the State of U.P. v. Ashok Kumar, , the Supreme Court has held as under (para 9) :-
“While appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the sligthest doubt because the law permits rejection if the doubt is reasonable and not otherwise”.
21. In Deonandan Mishra v. State of Bihar, , the apex Court has held that if the defence case is false, it would constitute an additional like so to fortify the prosecution case. The relevant portion of the aforesaid judgment of the Supreme Court may be reproduced thus (page 9) :
“But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation …… Such absence of explanation or false explanation would itself be an additional link which completes the clain”.
22. In the aforesaid legal and factual position, it is well established on record that Ushatai died neither of accidental death nor of suicidal death, but her death has homicidal and guilt of the accused/appellant No. 1 Deepak, the husband of deceased Ushatai is established beyond reasonable doubt and the finding of the learned trial Court so far as accomplicity of appellant No. Deepak for the offences under Section 302, 201 and 498A of the Indian Penal Code is concerned, is unassailable. We unhesitantly hold that conclusion arrived at by the trial Court so far as accused/appellant No. 1 Deepak is concerned, is logical, tenable and firmly sustainable. From the evidence discussed above, it is satisfactorily and conclusively proved that all the links in the chain are complete and do not suffer from any infirmity against accused/appellant 1 Deepak. The aforementioned circumstances found to be established against the appellant No. 1 Deepak form a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with hypothesis of the innocence of the accused/appellant No. 1, but on the contrary, the same are of exclusive nature consistent only with the hypothesis of the guilt of accused/appellant No. 1 Deepak and conclusively lead to irresistible conclusion that it was the appellant No. 1 Deepak and he alone who had committed murder of his wife Ushatai. However, so far as accused Nos. 2, 3, 4 and 5 are concerned, the prosecution has not been able to prove their involvement in the crime beyond reasonable doubt. There is a variance in the statement regarding the demand of dowry made by Smt. Vatsalabai, mother and Suresh, brother. There is neither any specific evidence against the role of accused/appellants 2, 3, 4 and 5 nor any act done by them in furtherance of their common intention. The prosecution has not been able to establish that the murder was committed by accused/appellants 2, 3, 4 and 5 in furtherance of the common intention or had caused disappearance of the evidence to screen themselves from legal consequence. In the absence of any reliable and positive evidence led by the prosecution showing the common intention of the accused/appellants 2 to 5, the finding of the learned trial Court holding accused/appellants 2, 3, 4 and 5 cannot be sustained and benefit of doubt has to be given to the appellants 2, 3, 4 and 5. Prosecution had not been able to firmly establish that appellants 2, 3, 4 and 5 were also in the same room where incident took place. Merely because they were living jointly with appellant No. 1 Deepak, common intention cannot be inferred and they cannot be implicated in the absence of unimpeachable evidence. The said judgment of conviction and sentence passed against the appellant Nos. 2, 3, 4 and 5 viz. Suresh, Dattatraya, Vatsalabai and Trivenibai is, therefore, liable to be set aside.
23. As a result of the aforesaid discussion, so far as conviction of accused/appellant No. 2 Deepak Narayanappa Tewara under Section 302, 201 and 498A of the Indian Penal Code is concerned, the same is maintained and the sentence awarded against him is also maintained. However, the conviction and sentence passed against the appellants 2, 3, 4 and 5 viz. Suresh Narayanappa Teware, Dattatraya Narayanappa Tewara, Smt. Vatsalabai Narayanappa Tewara and Smt Triveni Suresh Teware is set aside and they are acquitted of the charges under Sections 302, 201 and 498A read with section 34 of the Indian Penal Code. The appellants 2, 3, 4 and 5 namely, Suresh, Dattatraya, Smt. Vatsalabai and Smt. Triveni are directed to be released forthwith if not wanted in any other case.
This appeal is accordingly partly allowed. The conviction and sentence of accused/appellant No. 1 Deepak is maintained and convcition and sentence of rest of the accused/appellant 2, 3, 4 and 5, is set aside.
24. Appeal allowed partly.