JUDGMENT
L. Manoharan, J.
1. Aggrieved by the conviction and sentence awarded by the Additional Sessions Judge, Achalpur, in Sessions Case No. 118/86 (new Sessions Case No. 174/91), to the accused Nos. 1 and 2, they have come up, in this appeal. The charge sheet was submitted against five accused persons alleging that on 16-5-1984, accused No. 1, the elder brother and the accused No. 2, the younger one, committed murder of Tara, alias Vijaya, 32 years, wife of second accused, between 10.30 a.m. and 2.00 p.m. on 16-5-1984 in the first floor room of their mansion; they assaulted Tara, then set her on fire and threw her in the well situated in the compound of the said mansion. One of the accused, the wife of the first accused, expired before the charge was framed. The third accused Yeshwant, alias Motiram, died after the framing of the charge.
2. Accused Nos. 1 and 2 were charged under Sections 302 and 201, read with Section 34 I.P.C. and accused Nos. 3 and 4 were charged under Sections 201 and 203 read with Section 34 I.P.C. The learned Additional Sessions Judge convicted accused Nos. 1 and 2 for the offences punishable under Sections 302 and 201 read with Section 34 I.P.C. and sentenced each to undergo imprisonment for life for the offence punishable under Section 302, I.P.C. and to pay a fine of Rs. 1,000 each, in default to undergo rigorous imprisonment for six months. They were further sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500 each, in default to suffer rigorous imprisonment for 15 days for the offence punishable under Section 201 I.P.C. The substantive sentences were directed to run concurrently. The fourth accused was found to be not guilty and was acquitted.
3. Prosecution case is that Tara, ever after her marriage with the second accused on 13-3-1978 resided along with first accused and his wife in their house at Pimplod village. It was alleged that Tara was subjected to cruelty and humiliation by not giving food and also accusing her that she was from a low family. It was alleged that accused Nos. 1 and 2 caused the death of Tara in the manner mentioned in para (1) above.
4. At about 2.00 p.m. on 16-5-1984, the nude dead body of Tara was retrieved from the well situated in the compound of accused Nos. 1 and 2. The dead body had a lacerated injury on the scalp and also burn injuries including one located on the thoracic back region-10″ x 10″ size. The left side of the face was superficially burnt. Hair on the head and eye lashes of both eyes were also burnt. She was carrying 34 weeks.
5. On 16-5-1984, third accused tendered Exh. 24, report at the Police Station, Yeoda, stating therein that Tara jumped into the well and her dead body was taken out of the well. On the basis of Murg report-Exh. 23, No. 9 of 1984 dated 16-5-1984, the matter was registered under Section 174 Cr.P.C.
6. On 18-5-1984, P.W. 1, brother of Tara, submitted a complaint-Exh. 31, his statement was recorded and Crime No. 60/84 was registered. Pursuant to Exh. 24, information tendered by the third accused, inquest-Exh. 56 was held on the dead body of Tara. Material objects were seized under Exh. 27, and Exh. 28, spot panchanama was also prepared by P.W. 9, A.S.I. Thereafter along with Exh. 29 – requisition, the dead body of Tara was sent for post mortem. P.W. 11 held the post mortem and issued Exh. 80, the post mortem report. After completing the investigation as per the information tendered by P.W. 1, charge sheet was submitted against all the five accused persons.
7. Defence of accused Nos. 1 and 2 was that Tara committed suicide and that, at that time, they were asleep in the sitting room in the ground floor. Only when those who had collected near the well yelled that something had fallen into the well and they reached the well, and the dead body was taken out from the well could they know that Tara jumped into the well. They denied the prosecution case.
8. There being no occurrence witness, the prosecution relies on circumstances to bring home the guilt of the accused. The circumstances relied on by the prosecution are – (1) the death of Tara was a custodial death; (2) Tara was subjected to cruelty by accused 1 and 2 and deceased wife of first accused; (3) proximity of the death of Tara to her return to the matrimonial house on 13-5-1984; (4) sequence of events and the time of occurrence that led to the death of Tara; (5) the conduct of the accused persons; (6) the attempt to furnish prejudiced version of the occurrence; (7) the condition of the dead body; and (8) the medical evidence.
9. Admittedly, the dead body was extricated from the well in the house compound of accused Nos. 1 and 2 situated about four feet away from the exit door. The spot panchanama Exh. 28 would reveal that the first part of the occurrence wherein Tara was set on flame was in the room in the first floor of the mansion belonging to accused Nos. 1 and 2 from-where burnt remains of clothes, one steel glass and other objects were seized under Exh. 27, seizure panchanma. As noticed, the prosecution case is that after assaulting Tara, accused 1 and 2 set Tara on flame and later threw her naked body into the well. Whereas the defence would maintain that Tara set herself on flame and because of the agony she ran down the steps, reached the well and jumped into it. The fact remains that death of Tara occurred when she was in the custody of accused 1 and 2. An attempt was made by the learned counsel to contend, since the dead body was found in the well, the death cannot be described as custodial death. This argument cannot be sustained as the well was in the compound of the appellants, just four feet away from the exit door. Further, as is evident from the spot panchanama, part of the occurrence took place in the first floor room of the appellants therefore, there could be no doubt that Tara’s death was a custodial death.
10. In the case of Ganeshlal v. State of Maharashtra the Supreme Court held that when the death had occurred in the custody of the accused, they are under an obligation at least to give a plausible explanation for the cause of her death in their statement under Section 313 Cr.P.C. In the case of Kundula Bala Subrahmanyam v. State of Andhra Pradesh the Supreme Court also held that when the death had occurred in the custody of the in-laws, they are under obligation to give plausible explanation for the cause of her death. In this case, Tara died when she was in the custody of the appellants. Therefore, they are under obligation to give plausible explanation as to the cause of the death. As noticed, the explanation given by them is that Tara committed suicide. Suggestion by the defence is that Tara was found frustrated when she was taken by P.W. 1 to her matrimonial house on 13-5-1984 and, therefore, she committed suicide. This focuses to the requirement to find out whether in the given circumstance the explanation given by the accused persons in their statement under Section 313 Cr.P.C. is an acceptable explanation this involves the main dispute in this case also. The entire circumstances have to be taken into account in deciding whether it was murder or was suicide.
11. According to the prosecution Tara was subjected to cruelty by not giving her food or water and also by accusing her that she came from a low family. The prosecution has relied on the evidence of P.Ws 1 and 3 to 5 in this regard. P.W. 1 is the brother of the deceased, P.W. 3 is the mother of the deceased, P.W. 4 is the father of the deceased and P.W. 5 is the brother of P.W. 4. They said that Tara was subjected to cruelty by not giving food or water and often she was humiliated by saying that she was coming from a low family. Main criticism raised against the evidence of these witnesses is that the allegation of cruelty does not find a place in Exh. 31, complaint. It was also pointed out by the defence that in Exhs. 35 to 48, letters written by P.W. 4, no mention whatsoever is made as to the alleged cruelty perpetrated by accused 1 and 2 and the deceased wife of the first accused. Acceptability of the aforesaid evidence must be with due regard to their relationship with Tara. An appreciation of the evidence without taking into account the usual human conduct may result in wrong conclusions. A daughter who is given in marriage will choose to confide the problems faced by her in the matrimonial house only to close relatives she will try to withhold it from others. She will not like others to know about it. Therefore, normally a daughter will choose to reveal such harassment and difficulties to her mother; she may confide it to her close relative like her father and brother. Therefore, the evidence of these witnesses cannot be discarded as proceeding from interested sources. Now, the criticism that Exh. 31 does not contain such allegation about cruelty cannot survive as a first information statement need not be an encyclopaedia of the whole occurrence; it need contain the necessary information as to the commission of a cognizable offence so as to start investigation. The circumstances under which Exh. 31 was tendered should not be lost sight of. There was hardly any time for the brother to recover from the shock of the loss of his sister – that too a violent death, so that he could co-relate the whole circumstances when he tendered Exh. 31. Therefore, evidence of these witnesses cannot be rejected on account of the omission in Exh. 31 as to the cruelty. As regards letters, Exhs. 35 to 48, these were addressed by the father to the first accused. In such a communication, it is not necessary or inevitable for the father to have mentioned about the said aspect. Acceptability of the evidence of these witnesses as to his aspect has to be decided against the back-drop of the conduct of the husband towards the deceased.
12. The marriage between Tara and the second accused was solemnised on 13-3-1978, after 1 1/2 years their son Anil who at the time of occurrence was about 4 1/2 years, was born. In February 1982 Tara was dropped at her paternal house at Pulgaon by the second accused and one Shankar. Tara was taken back by the second accused only in September 1983 that too pursuant to a compromise in July 1983 between the family of Tara and accused 1 and 2. Again Tara was taken to her paternal house for the ceremony in connection with the engagement of the P.W. 1, brother of Tara, on 25-2-1984. Since the said marriage had to be solemnised on 20-4-1984 Tara stayed back. The second accused attended the said marriage on 20-4-1984. There was another marriage of the cousin of Tara fixed for 5-5-1984. When the second accused came to attend the marriage of P.W. 1 on 20-4-1984 he asked Tara to stay back in her paternal house so that she could attend the marriage of her cousin also, which as indicated, was to be solemnised on 5-5-1984. Second accused assured that when he comes for attending that marriage, he would take her back. Second accused did not attend the marriage of Tara’s cousin – neither did he take her back. Therefore, on 13-5-1984, P.W. 1 had to take his sister Tara to her matrimonial house.
13. For almost 1 1/2 years Tara was left in her paternal house. Again she was taken to her paternal house on 25-2-1984. On that occasion she had to be taken to the house of appellants by P.W. 1 on 13-5-1984. This is an important circumstance which throws light on the relationship of the husband and wife. Undoubtedly the second accused was not eager to have the company of his wife Tara. Therefore, the second accused cannot claim that his relationship with his wife Tara was cordial, much less affectionate, for his conduct is not consistent with that of a caring husband. The evidence of P.W. 1 and 3 to 5 has to be appreciated against the said back-ground. So long as there is no acceptable reason from the defence as to why Tara was left in her paternal house for such a long period, the evidence of P.Ws 1, and 3 to 5 becomes compellingly persuasive as to this aspect and, as such, is acceptable.
14. It is immediately necessary in this connection to note that P.W. 1 took Tara to her matrimonial house on 13-5-1984. He stayed back there on that day and left only on 14-5-1984. Death of Tara was on 16-5-1984. The death undoubtedly was not a natural death. The close proximity of the date of death of Tara to her reaching her in-law’s house on 13-5-1984 is a relevant factor in considering whether the death of Tara was suicide or was homicide. It was pointed out on behalf of the defence that P.W. 1 himself has stated that when he left, he found Tara frustrated and according to them, whereas Tara wanted to have her delivery in her paternal house, on account of the opposition by the wife of P.W. 1 she had to be taken to her matrimonial house and that was the cause of her frustration. There is absolutely no strand of evidence in support of the aforesaid argument. Admittedly the delivery of Anil was in her paternal house. The prosecution maintains that the frustration was on account of her being left in the in-law’s house where she could not get any consolation, love and care which normally a young wife would have yearned to have. Therefore, the defence case in this regard cannot be accepted.
15. This particular aspect does not stand in isolation. Naturally the value of the circumstances has to be assessed and weighed in the context of other circumstances relied on by the prosecution. Admittedly the first part of the occurrence took place in the first floor room of the mansion of accused 1 and 2. Exh. 28, spot panchanama as well as the seizure panchanama-Exh. 27 would show that Tara was in flames in that room. This was at about noon. Her nude dead body was found in the well situated about four feet away from the house. It should not be forgotten that she was carrying 34 weeks. It is also necessary in this connection to mention that according to the prosecution Tara was first assaulted by accused 1 and 2, then set her on flames and thereafter threw her into the well. On the other hand, the defence is that Tara poured kerosene on herself, set herself in flames and because of the agony on account of the scorching heat she threw away her clothes, ran down the steps clutching only a petticoat around her waste reached the well and jumped into the well. P.W. 1, the doctor, who conducted the autopsy would conclude that death was due to drowning.
16. The question is whether the inference that could be generated from the said data is consistent with suicide or homicide. In deciding this, the social condition and behaviour have to be kept in view. Though it is stated that at the time of inquest and spot panchanama Exh. 28 a petticoat was found near the well, P.W. 23 who was declared hostile and was permitted to be cross-examined by the prosecution, admitted that he told police that rich or poor lady would never jump into the well in a naked condition and that the petticoat was not near the well. Simply because a witness is declared hostile and was permitted to be cross-examined, that does not mean that the evidence of the said witness is banished from consideration of the Court; the Court is free to accept such portion of the evidence of the witness which inspires confidence to be acted upon. In the context of the sequence of events, the evidence fo P.W. 23 is of material importance. If as a matter of fact, no petticoat was found near the well it would mean, even assuming that Tara herself reached the well, she was totally naked.
17. Exh. 107 is the spot map. The same shows the relative positions of the well, the house of the accused and the adjacent buildings as well as the position of the road. There is no separating boundary wall between the road and the house compound. It was noon when the occurrence took place. The question is whether a woman of 32 years, who was in advanced pregnancy would expose herself in open at noon time in such a place. It is highly improbable that a lady in such a condition would have come out of the house nude at noon and then jumped into the well. The probabilities of the case cannot be ignored in appreciating this aspect.
18. Though it is the defence case that Tara set herself on fire after pouring kerosene, spot panchanama-Exh. 28 shows only a metal glass which had trace of kerosene. No other container could be seen at the first floor room. Usually one will not commit suicide by pouring kerosene all of a sudden. He would chose a suitable time for that drastic act and the method by which it has to be executed. It is improbable that a lady would have dared to set herself on flame with a glass of kerosene only. Adding to this, no match-box could be seized from the spot. It is improbable that after setting herself on flames she could have carried the match-box along with her. Normally, therefore, the match-box should have been found at the scene if she set herself on fire. In this context, it is necessary to note the injuries sustained by Tara.
19. Exh. 80, the post mortem report, states that Tara had a lacerated injury of 3 x 3/4 inch over the scalp burn injuries on the thoracic back region 10 inches x 10 inches and certain other burn injuries superficial over the shoulder, legs, and around thyroid cartilage superficial burn injuries were also found over right side of face 3 inches x 3 inches. Hair of head and the eye brows were also burnt. The picture that emerges from the post-mortem report is that more serious injuries were on the back side of Tara. This has significance in the context of the circumstances to which advertence has already been made. The location of the serious burn injuries and their pattern would support an inference that some one threw kerosene from her back and lit her. The absence of match-box at the scene along with the aforesaid aspects make it to remote that a lady carrying 34 weeks woould have ran naked to the courtyard adjacent to the road without a separating wall, reached the well and jumped into it.
20. Yet there is another circumstance, to which advertence has to be made in this connection. It concerns the conduct of the accursed. The case of the defence is that accused 1 and 2 and deceased wife of accused 1 were fast asleep in the ground floor room and, therefore, they were not aware as to what was happening in the first floor. Their defence has got the stamp of artificiality which knocks off the very bottom of the probability of that defence. It is unusual that at that time the whole household was fast asleep so that even the scream that naturally should have emanated from the person in flames could not wake them from the slumber. Her stepping down from the staircase and then reaching the well naturally should have produced sound.
21. Evidence of P.W. 6 shows that on the date of occurrence one Chhaganseth came running to his Mohalla and told that the first accused’s daughter-in-law jumped into the well. So he along with P.W. 23, his brother, reached the well. At that time others had also collected there. According to accused, it was only when those collected near the well cried aloud they woke and reached the well. With due regard to the features to which advertence has already been made, it looks strange and unnatural that the whole household was in slumber so that they had to be called by those who collected near the well.
22. We have already seen that since the death was custodial death it was incumbent on the occupants of the house to give an acceptable explanation as to the cause of death. It is pertinent to note that Tara had an incised injury on her scalp. The defence maintained that the said injury could have been sustained on her head hitting against the water pump installed within the well when she leapt into it; whereas the prosecution would maintain that the accused had dealt blow on her head. For the present, even assuming that the explanation of the defence as to the said injury is probable, the other circumstances have to be taken into account in arriving at a decision as to whether this was suicide or homicide. Suffice to say, the circumstances support a conclusion of homicide.
23. It is again necessary to advert to medical evidence in this regard; particularly that of P.W. 11. Though Exh. 80, post mortem report, mentions that semi-digested food was found in the stomach it does not mention that the stomach contained any water. All that is said in Exh. 80 is that there was froth in the trachea. P.W. 11 concluded that the cause of death was asphyxia due to drowning. The case of the prosecution is that accused 1 and 2 removed the nude body of Tara from the first floor room and threw her into the well. The fact that the stomach did not contain any water is a relevant factor in deciding whether Tara was conscious when she immersed into the water. If she was unconscious, it goes without saying that she on her own could not have reached the well or jumped into it. Then that will probabilise the prosecution case that she was thrown into the well by the appellants. P.W. 11 said by the burn injuries which was 35%, a person may or may not become unconscious.
24. The Investigating Officer sent queries to P.W. 11 for clarification. Exhs. 81 to 88 are the said queries and their replies given by P.W. 11. With respect to Col. No. 21 in the post mortem report-Exh. 80, in Exh. 81 query, the Investigating Officer asked whether P.W. 11 found water in her stomach. He answered in the negative in Exh. 82. Then Exh. 83 query was asked whether an unconscious person thrown in water would die of drowning. P.W. 11 answered in the affirmative in Exh. 85. By Exh. 86 the Investigating Officer P.W. 11 asked whether the absence of froth as per Col. No. 13 of post mortem report was due to unconscious condition of the deceased. P.W. 11 answered in Exh. 88 that as per Text Book of Mody when individual is rendered unconscious at the time of immersion into water little water enters respiratory track and little quantity of froth is produced.
25. We have already adverted to the fact that the post mortem report-Exh. 80, does not make mention of the presence of froth. Now the queries will bring out the fact that when the person is rendered unconscious at the time of immersion into water little water enters the respiratory track and little froth will come. This is an aspect to be taken note of in deciding as to whether Tara herself reached the well or whether she was taken by somebody and was thrown into the well. Features noted in the report of the doctor would show that when Tara was immersed into the water when she was unconscious.
26. Learned counsel for the defence urged that the correspondence by the Investigating Officer and the P.W. 11 in this regard cannot be considered at all as the accused were not asked anything with respect to the same when they were questioned under Section 313, Cr.P.C. Learned counsel relied on the decision in case of Sharad Birdhichand Sarda v. State of Maharashtra , wherein it is held that unless the circumstances appearing against the accused is put to him in his statement under Section 342 (now Section 313) of Cr.P.C., the same cannot be used against him. Learned counsel also made reliance on the decision in Bhalinder Singh v. State of Punjab , in support of the aforesaid preposition. Question Nos. 32 and 33 in the statement under Section 313, Cr.P.C., concern the post mortem report and the injuries sustained by the deceased. Or course there is no specific question with respect to the correspondence by the Investigating Officer and P.W. 11.
27. As per Section 313, Cr.P.C., after the closing of the prosecution evidence, the Court shall question the accused generally on the case. It is not a case where no question at all was put to the accused with regard to the post mortem report. Then the question is only as to the adequacy of the questions put to the accused under Sec. 313, Cr.P.C. The questions should have been more specific with respect to the circumstances. It cannot be observed that the learned Sessions Judge ought to have bestowed more care in framing the questions. Shivaji Sahebrao Bobade v. State of Maharashtra, , held that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. The Court then proceeded to hold that “…… However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction ……” Same principle is reiterated in the decision in the case of Suresh Chandra Bahri v. State of Bihar, . When we asked the learned counsel for the appellants as to the prejudice, if any, caused to the accused, it was submitted by the learned counsel that prejudice is inherent in the circumstances and that the accused could have examined another doctor on defence side as to the medical conclusion.
28. One thing has to be noted in this connection and that is, what is required under Section 313, Cr.P.C., is only the circumstances appearing against the accused have to be put to him; the inferences generated by the said circumstances need not be put to the accused. In paragraph 326 of the decision in the case of R. K. Dalmia v. The Delhi Administration, . Their Lordships observed :
“….. An accused is questioned under Sec. 342, Cr.P.C. to explain any circumstances appearing in the evidence against him. It is not necessary to ask him to explain any inference that a Court may be asked to draw and be prepared to draw from the evidence on record …..” Exh. 80 states the data. In spite of the fact that the correspondences were proved through P.W. 1, there was no cross-examination as to the same. In such circumstances the prejudice now urged is neither real nor acceptable. This is yet another aspect which would support the prosecution case, and that is Tara was unconscious when she was dropped into the well.
29. The said evidence too is consistent with presecution case that Tara did not reach the well herself. That lends support to the conclusion that she was thrown into the well. The learned counsel for the appellants urged, the unconscious stage could have been on account of lacerated injury on the head of Tara which, according to him, she sustained by her head hitting the water pump in the well. Support was sought from Exh. 58. The same is a spot panchanama dated 19-5-1984 which mentions, a small corner of the plank of the motor pump was seen broken. But Exh. 28 dated 17-5-1984 spot panchanama does not make any mention that any part of the plank was found broken. Inasmuch as Exh. 28 dated 17-5-1984 does not mention of any part of plank broken, Exh. 58 cannot be relied on.
30. Learned counsel made reliance on the evidence of P.W. 25 to contend that as a matter of fact Tara reached the well on her own. This witness was examined as per the order of the Court rendered on an application by the accused. The Court directed the Public Prosecutor to conduct the chief examination. In the chief examination, the witness stated that at about 1.30 p.m. he was going towards “Gaothan” to his house and when he reached the house of Govinda, he saw a lady coming out of the house of the accused. He went ahead and when he passed the flour mill of Pandurang, he heard the sound of something falling into the well. Thereafter he turned back and came near the well. This evidence is relied on to show that in fact Tara came out of the house on her own and reached the well. If the evidence of this witness is accepted, it would mean that Tara committed suicide by jumping into the well. It need hardly be mentioned that this witness did not support the prosecution case in this regard. The Public Prosecutor later sought permission to treat the witness as hostile and to put leading question to him. But the permission was not granted by the trial Court. Now it is maintained that what is sworn to by the witness should bind the prosecution. Learned Sessions Judge disbelieved P.W. 25. When the prosecution feels that a witness called for the prosecution is not telling the whole truth or suppresses some truths, then prosecution can request under Sec. 154 of the Evidence Act to permit the prosecution to put questions which might be put in the cross-examination. Permission can also be sought to contradict the statement of witness under Sec. 162, Cr.P.C., as provided under Section 145 of the Evidence Act. If the Court finds from the demeanour, temper, attitude bearing, or the tenor and tendency of the witness or upon perusal of the inconsistent statements or otherwise of the witness, it is expedient to extract the truth and to do justice, such permission has to be granted, the Court should accord permission. And Section 154 of the Evidence Act in that context has to be liberally construed. Here, as noticed, P.W. 25 was examined on the basis of an order passed by the Court on an application moved by the accused, but the prosecution was directed to conduct the chief examination. The testimony in the chief examination was not consistent with the prosecution case. Evidence of this witness itself will show that it is not trustworthy. According to him, at about 1.30 p.m. he saw one lady coming out of the house of the accused when he reached near the house of Govinda. As per Exh. 107, spot map, he should have been coming from the north towards south as he says he was going to his house at Gaothan. According to him, when he reached near the house of Govinda he saw a lady coming out of the house of the appellants. The plan shows Govinda’s house is on north west of the main door, whereas the well is situated on the south of the house of the appellants, and a person standing in front of Govinda’s house cannot see one coming out of the door near the well. She could not have come out of the house through the main door which is very near to the road as a lady who was carrying 34 weeks and was naked could not have appeared near the road. Further the testimony of this witness is infested with inconsistency. He said that he further proceeded and when he reached the flour mill of Pandurang he heard something falling into the well, hearing which he turned back and came near the well. According to him he was proceeding from north to south; in that event, it is totally inconsistent that he should have turned back so as to reach the well. Therefore, the evidence has only to be rejected; and the learned Sessions Judge rightly did not act upon the evidence of this witness.
31. The prosecution examined P.W. 2 whose statement was recorded under Section 164, Cr.P.C. In his statement he stated that he saw accused 1 and 2 carrying Tara out of the house to the well, but he disowned the statement and, hence, was declared hostile and was permitted to be cross-examined. His statement under Sec. 164, Cr.P.C., therefore, cannot be substantive evidence. In this connection it is worthy to note a portion of his deposition wherein he said that he was taken to a lodge by two persons of his village, and he was told to change the statement and that the statement and that he should tell in their favour. He asserted that they took out a knife and threatened to kill him. He further stated that he was afraid of the accused as to his person and property. He admitted that he had reported to the police on 25-10-1987 for police protection.
32. Now the question for consideration is whether the aforesaid circumstances can bring home guilt of the accused beyond shadow of reasonable doubt. It is well settled that each circumstance should be firmly established and all the links in the chain of circumstances should point only to the guilt of the accused and should be inconsistent with the innocence of the accused. Circumstances relied on must be fully established and the cumulative effect of all the facts so established must be consistent only with the guilt of the accused.
33. As has already been demonstrated in the earlier paragraphs of this Judgment, the theory of suicide is totally inconsistent with the sequence of events that resulted in the death of Tara. The case of the accused that they were in deep slumber at the time of occurrence is too artificial to be believed when examined in the light of the time and the nature of occurrence. Therefore, it cannot, in the context, be said that the circumstances are capable of two interpretations enabling to claim benefit by the accused. It is not necessary that each fact so established must in itself be incriminatory; what is required to be taken into account is the cumulative effect of the circumstances so established. In the case of State of U.P. v. Ashok Kumar Sriwastava, , the Supreme Court held that 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. The Supreme Court further proceeded to hold that this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however for-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. In the case of State of Andhra Pradesh v. I.B.S. Prasada Rao, , Supreme Court, after emphasising that prosecution has to establish the circumstances firmly which are incapable of explanation on any hypothesis consistent with the innocence of the accused, held that :
“….. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of the guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by itself is not decisive ………..” Even if the evidence of the correspondence between the investigating officer and P.W. No. 11 is eschewed, the other circumstances by themselves form a complete chain. Cumulative effect of all the circumstances proves that the death of Tara was homicide.
34. The learned counsel for the appellants maintained, since Exh. 31 statement was tendered only on 18-5-1994, the prosecution was bound to explain the delay. According to the learned counsel since the prosecution did not explain the delay that is a factor to be reckoned in deciding that whether prosecution is successful in establishing the prosecution case. The insistence that the first information should be tendered without delay is to ensure spontanity. P.W. 1 said, the information as to the death of Tara was received only by 9.30 a.m. on 17-5-1984 and in a taxi they reached Pimplod by 4.00 p.m. According to him after cremation though he went to Yeoda Police Station, as the Station Officer was not there he could not tender the First information statement; then proceeded to Paratwada Police Station; there also he could not tender the first information statement as the S.D.P.O was not present. Therefore, he went to Amravati on 18-5-1984 and gave Exh. 31 to the Guardian Minister at Circuit House. It was there after that his statement was recorded on 18-5-1984. In the above circumstance the evidence of P.W. 1 attains probative value to the accepted. A desperate brother inspite of his best effort to get his statement recorded found his effort not fruitful and only on the 18th he succeeded.
35. In this connection, the conduct of the appellants also has to be adverted. Though Tara died on 16-5-1984, the message as regards it was sent to her parents and brother only on 17-5-1984. And when they reached Pimplod at about 4.00 p.m. appellants were in a hurry to cremate her dead body, though P.W. 1, requested to wait for the other relatives to reach, appellants were in no mood to acceed to the said request. The said conduct of the accused also is a circumstance to be taken into account. There was a conscious effort to make out the death of Tara was suicide. Exh. 24 tendered by the third accused did niot mention as aspect of vital importance that the dead body was nude. Though none was questioned at the inquest Exh. 29 report, of 17-5-1984 forwarded to P.W. 11 along with the dead body said that the deceased in a burning condition jumped into the well. That was for the benefit of the accused. Again that is yet another circumstances to be taken into the account.
36. An attempt was made by the learned counsel that the first accused stands in a different footing as he has no grudge against the deceased. We have already pointed out that the death being a custodial death, it is obligatory on the part of the inmates of the house to give reasonable explanation for the death. We have already demonstrated that the case of the accused that they were asleep when the occurrence took place is not acceptable. When it is found that Tara did not jump into the well, it is clear that one alone could not have been able to take her from the first floor to the well and thrown her into it. The first accused was the other individual there. The second accused was epileptic. Further both the appellants had the equal facility to commit the offence, and the nature of the offence needed the help of another. Thus, the complicity of the first accused also is clearly established. It was also claimed by the learned counsel that one Tarachand was also in the house at the time of occurrence. Only piece of evidence in support of such argument in Exh. 57 spot panchanama prepared on 19-5-1984. The spot panchanama prepared on 17-5-1984 does not make mention of Tarachand being present at the house at the time of the occurrence. Presence of Tarachand on 16-5-1984 mentioned in the spot panchanama prepared on 19-5-1984 could only be hearsay. Therefore, this argument by the learned counsel for the defence also cannot be sustained.
37. With due regard to the aforesaid aspects, it is clear that the circumstantial evidence is cliniching that the murder was committed by both the accused. In view of the said conclusion, the conviction and sentence awarded by the learned Additional Sessions Judge, Achalpur, to the appellants-accused have only to be confirmed and we hereby confirm the conviction and sentence awarded to the accused 1 and 2 by the learned Additional Sessions Judge, Achalpur. In the result the appeal since is without merit is hereby dismissed.
38. Appeal dismissed.