JUDGMENT
K.S. Gupta, J.
(1) This appeal by Satish Kumar is directed against the judgment and order both dated December 22, 1990, of an Additional Sessions Judge whereby he was convicted under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine ofRs.2,000.00 . In default of payment of fine, he was to further undergo rigorous imprisonment for six months.
(2) Case of the prosecution, as borne out from the charge-sheet filed under Section 173 Criminal Procedure Code . by Shri A.A.Khan, Deputy Superintendent of Police, Cbi, New Delhi, is that Smt.Krishna was married to Satish Kumar accused on June 27, 1982, as per Hindu rites at village Agwanpur in District Sonepat. After marriage she came to Delhi and started living with the accused, her parents-in-law Bhagwat Prasad, Smt.Leelawati and sisters-in-law Kumari Pushpa and Shakuntala in house No.C-33, Channa Mal Park, Punjabi Bagh. On the third day of marriage Smt.Krishna went to her parents’ house as per the custom and came back after staying for three days alongwith the accused. In October 1982, she again went to Sonepat with her father and came back to Delhi with the accused in December 1982. Thereafter she always insisted upon the accused that she be sent to her parents’ house at Sonepat. However, suspecting her fidelity she was not allowed to go there. It is further alleged that on February 23, 1983, at about 9.30 Am Gopal, cousin of Smt.Krishna, went to the house of the accused. Smt.Krishna insisted upon the accused to send her to her parents’ house alongwith Gopal whereupon the accused gave her beating in the presence of Gopal. Gopal told about this incident to his parents Krishan Chand and Smt.Vidyawati and both of them went to the house of the accused in the evening but Smt.Krishna was not allowed to talk to them and she kept on weeping. In their presence accused threatened that he would finish Smt. Krishna if she again insisted for going to her parents’ house at Sonepat. It is further alleged that on February 24, 1983, accused, who was working as a conductor and was to report for duty at Dtc Bus Depot, Wazirpur, at 4.50 Am, reached there at 5.25 AM. At about 5.15 Am Smt.Vidya and her son Vijay Kumar saw fire on the roof of the house of the accused, therefore, Vijay Kumar went to his house and knocked the door. Bhagwat Prasad, father of the accused, reluctantly opened the door. On raising alarm by Vijay Kumar neighbours including Jagdish Chander, Rajinder Singh, Ram Kishan, Todi Singh, Abdul Hamid and Abdul Rashid collected and rushed to the roof. After the fire came under control, Abdul Hamid saw something protruding out of the burning stack of cowdung cakes and on touching he felt that it was the left knee of a human body. At that time he told that a corpse was being burnt in the fire. In the meantime. Fire Brigade also arrived on the scene and the firemen asked everyone to vacate the roof. The fire was extinguished by Rameshwar Dass, Durgesh Kumar, Jai Narain and Roshan Lal, firemen. During investigation pursuant to a disclosure statement made by the accused and on his pointing out, a danda used for assaulting Smt.Krishna was recovered. It is also alleged that main entrance door of the house of the accused was bolted from inside and the roof of the house had high parapet walls thereby obviating chance of any outsider to come and commit the crime and to go back undetected. Since the body of Smt.Krishna was found totally covered with cowdung cakes, that type of burning was not possible unless she was made unconscious. Parents, sisters and minor brother of the accused were found to have no motive to commit the murder of Smt.Krishna. As the accused suspected fidelity of his wife, he had a motive to intentionally commit her murder and there was sufficient evidence to connect him with the commission of that offence.
(3) defense raised by the accused was that his wife Smt.Krishna committed suicide.
(4) SMT.VIDYA Jain Public Witness 9 residing in house No.WZ-35, Manohar Park, located at a distance of 22-25 yards away from house No.C-33, Channamal Park, belonging to Bhagwat Prasad, father of the accused; is stated to have first noticed fire on the roof of said house No.C-33 around 5.15 Am on February 24, 1.993. She woke up her son Vijay Kumar Public Witness 6 and told him to inform Bhagwat Prasad about the fire. Public Witness 6 has stated that he knocked the door of the house and on Bhagwat Prasad opening the door he told him in regard to the fire on his roof. He alongwith Bhagwat Prasad went to the roof and saw a big fire in a stack of cowdung cakes which was of the size of a cot. He has further stated that on raising alarm by him 5-6 persons of the locality including Jagdish Prasad and Ram Kishan came to the roof and tried to extinguish the fire by pouring water. In the meantime Fire Brigade arrived there and the firemen asked everyone on the roof to go down. Jagdish Prasad, whose house is situated opposite to above house No.C-33, has been examined as PW5 and he has corroborated the statement of Public Witness 6 in regard to the fire in a stack of cowdung cakes of the size of a bed on the roof of the said house and extinguishing thereof by the persons of the locality and .also the firemen. Rameshwar Dass Public Witness 1 was the leading fireman while Durgesh Kumar Public Witness 2 was one of the firemen who helped in putting off the fire. It is in the deposition of Public Witness 1 that after the fire was extinguished dead body of a women was noticed inside the heap of burnt cowdung cakes and the head of the body was towards the east while the feet were towards the west. He with the help of PW2 removed the dead body, put the same on a tin sheet nearby and left the place alongwith others around 6.30 Am and by that time the police had reached there. From the aforesaid evidence recovery of charred body which came to be identified as that of Smt.Krishna from the heap of burnt cowdung cakes (uplas) from the roof of above house No.C-33, stands proved beyond any shadow of doubt. It is a matter of common knowledge that death by burning invariably is most painful and no person , howsoever, courageous he she might be, would lie on a burning stack of cowdung cakes quietly and allow the body to be burnt till the end comes. Therefore, in all probabilities Smt.Krishna must have died homicidal instead of suicidal death.
(5) To link the accused with the committing of intentional murder of his wife the prosecution has not adduced any direct evidence and the case is based purely on circumstantial evidence. Circumstances relied upon by the prosecution relate to (a) the fact that the accused and his parents were unhappy with the dowry given in the marriage, gifts presented thereafter on two occasions by the father of the deceased and also the mal-treatment meted out to the deceased particularly at the hands of the accused during her stay in the matrimonial home, (b) presence of residue of kerosene oil on Exs.P3 & P4, pieces of clothes recovered from the body of the- deceased after the occurrence, (c) recovery of a wooden danda Ex.P6 allegedly used for assaulting the deceased on the night intervening 23/24th February 1983, and (d) the late .reporting on duty by the accused at D.T.C. depot Wazirpur-II to which he was attached at the time of the incident.
(6) We propose to examine these circumstances in seriatum. Circumstance (a)
(7) PW3, Krishan Chand, is the brother-in- law (sadhu) of Public Witness 7, Jagan, the father of the deceased. Public Witness 4, Gopal, is the son while Public Witness 21, Smt.Vidhya Devi is the wife of Public Witness 3. Public Witness 3 has, inter alia, deposed that he attended the marriage of Smt.Krishna with the accused at Agwanpur in District Sonepat. Public Witness 7 is a poor man having nine daughters and was thus unable to give jewellery in the marriage. He gave Rs.500.00 in cash, cycle and a wrist watch in the marriage. Bhagwat Prasad, father of the accused, returned those articles but on the intervention of the people he accepted them. Likewise is the statement of PW7. In cross-examination not even a single question was put to either of these witnesses in regard to the said part of their depositions implying thereby that the accused did not dispute that part of their statements.
(8) Jagan Public Witness 7 has further deposed that on the eve of Karva Chauth he went to the house of Bhagwat Prasad and had taken some clothes and sweets; that family members of Bhagwat Prasad including the accused were present at the house and the clothes taken by him for them were not liked by them. He again visited the house of Bhagwat Prasad for giving sidha on the eve of sankrant and the accused had remarked “what rotten things you oldman have brought?”. Veracity of this part of the statement made by Public Witness 7 was not challenged in cross-examination on behalf of the accused.
(9) Thus, from the unchallenged statements of Public Witness 3 & Public Witness 7 it is proved that the father of the accused was unhappy with the dowry given in the marriage of the accused and the gifts presented thereafter on two occasions by the deceased’s father were not liked by the accused and the other members of his family.
(10) This brings us to the alleged mal- treatment of the deceased by the accused. PW4,Gopal, has stated that on February 23, 1983, he visited the house of Smt.Krishna in Channamal Park to deliver rice at about 9.45 .AM. Smt.Krishna was present in the house and when he was about to leave after delivering the rice she called him. Accused told him not to go near her. She again called him. On this accused told him to go back to his house. When he reached near the door Smt.Krishna again called him on which accused began to beat her with fists. He came back to his house and narrated the incident to his mother. In cross-examination he has emphatically denied the suggestion that on the said date ad time the accused was not present at his house.
(11) While corroborating the statement of Public Witness 4, Public Witness 3 has deposed that on February 23, 1983, he had deputed his son Gopal,ged about 13 years at that time, to deliver ten kgs of rice which he purchased for Bhagwat Prasad at his request. Gopal on return told her mother what had happened at the house of Bhagwat Prasad. Same day in the evening on his return from duty, his wife narrated the incident as told to her by Gopal. In that evening itself Geeta, sister of the accused, came to his house and told him that her father wanted to see him. After about an hour or two he alongwith his wife had been to the house of Bhagwat Prasad. Accused was also present there. He told Bhagwat Prasad that it was not proper to beat Smt.Krishna as had happened in the morning before his son. Bhagwat Prasad assured him that this would not happen again. Thereafter he had a talk with the accused about the morning incident and accused told him that Smt.Krishna insisted upon going to her parents house and she did not obey him and if that attitude of her persisted he would beat her again. He then alongwith his wife returned to his house. (Volunteered) When they were going, his wife told him that Smt.Krishna was weeping but she did not tell him the cause. It is further in his deposition that he used to visit the house of Om Parkash off and on and Smt.Krishna used to work from morning till late in the night and the other members of the family of Bhagwat Prasad did not help her. In cross-examination he has stated that his statement was recorded by the police of P.S.Punjabi Bagh for the first time after about 2-3 days of the incident. Dy.S.P. Shri Khan too recorded his statement after about 10-15 days of the occurrence. He has expressed his inability in telling if he had told Shri Khan, Dy.S.P. that the accused told him that Smt.Krishna insisted upon going to her parents house and she did not obey him and if that attitude of Smt.Krishna persisted he would beat her again. He was confronted with the statement under Section 161 Criminal Procedure Code . Ex.PW3/DA where it was not so recorded. In her statement Public Witness 21 has fully corroborated the testimony of Public Witness 3 as to what had transpired at the house of the accused when they visited it in the evening on February 23, 1983.
(12) PW7 has deposed that when he visited the house of Bhagwat Prasad on the eve of Karva Chauth and Sakrant he was not permitted to meet or have a talk with Smt.Krishna and he saw her weeping. In cross-examination, correctness of this part of his statement was not assailed by the accused.
(13) It may be noticed that visits to the house of Bhagwat Prasad by Gopal PW-4 to deliver rice in the morning at about 9.45 A.M. on February 23,1983 and that of Public Witness s-3 and 21 the same day in the evening are not disputed. Accused, however, denies either that he beat the deceased in the presence of PW-4 or that he held out threat that to beat her again if she insisted upon going to her parents’ house and did not obey him in the presence of Public Witness s 3 and 21 on February 23,1983. Significantly in cross-examination no suggestion was put to Public Witness -3 or Public Witness -21 indicating the purpose Public Witness -3 was called by Bhagwat Prasad through his daughter Geeta on the said day. As is manifest from the deposition of Public Witness -3, on his visit to Bhagwat Prasad’s house on that day, the discussion centered round the beating incident which took place in the morning on February 23,1983. If the deceased was not actually beaten by the accused in the presence of Public Witness -4, where “was the occasion of such discussion taking place during that visit. Further, as the accused was directly concerned with the morning incident naturally Public Witness -3 may have a talk with him in the matter. Therefore, there seems to be no reason to disbelieve part of the statement made by Public Witness -3 that during the talks accused told that Smt.Krishna insisted upon going to her parents’ house and she did not obey him and if that attitude of her persisted he would again beat her. Thus, the depositions of Public Witness s 4, 3, 21 and 7 not only prove what had happened on February 23,1983 but also that the deceased was not permitted to have a talk in seclusion either with Public Witness -7 or Public Witness -3 or Public Witness -21 whenever they happened to visit the matrimonial home after marriage.
(14) Circumstance (b): Si Madan Lal Public Witness 23 was the first police officer who reached house No.C-33, Channamal Park, alongwith Constable Jaipal at about 6.25 Am on February 24, 1983, on receipt of information from Pcr regarding fire in the said house .As is evident from the deposition of Public Witness 23 pieces of burnt cloth alongwith other articles were seized by him from the place of occurrence vide memo Ex.PW23/B on February 24, 1983. Phial also containing burnt pieces of cloth removed from the body of Smt.Krishna, deceased by Dr.A.K.Sen PW15 at the time of conducting post-mortem was taken into possession by PW23 vide memo Ex.PW23/C on February 26, 1983. It is in the deposition of Sh.K.K.Arora, Senior Scientific Officer, Cfsl, Public Witness 12 that burnt pieces of cloth Exs.P3 & P4 on analysis were found to be having kerosene oil residue. Ex.PW12/A is the report in that behalf of Public Witness 12. Submission advanced by Sh.Sandeep Sethi appearing for the accused was that the prosecution neither examined Malkhana Moharrir, P.S.Punjabi Bagh nor the constable who took both the parcels containing the burnt pieces of cloth of the deceased to the office of Cfsl by way of link evidence and in the absence of that evidence one cannot say that the burnt pieces of cloth Exs.P3 & P4 examined by Public Witness 12 were the same which were taken into possession vide memos Exs.PW23/B and PW23/C by Si Madan Lal Public Witness 23. There is considerable force in this argument. Deposition of Public Witness -23 is completely silent about his having deposited both the parcels with seals intact in the malkhana or having sent them to the office of Cfsl for opinion. In the absence of link evidence to the said effect, presence of residue of kerosene oil in Exs.P3 & P4 cannot be taken as an incriminating circumstance against the accused.
(15) Circumstance (c): The alleged recovery of half burnt danda Ex.P6 used for assault on the deceased on the night intervening 23/24th February 1983 is stated to have been effected by Sh.A.A.Khan, Dy.S.P. by whom the case was partly investigated after the investigation was transferred to CBI. This recovery on the pointing out of the accused was made in the presence of B.D.Bahera Public Witness 14 and one S.K.Biswas on March 16, 1983. Si Madan Lal Public Witness 23, who visited the spot at 6.25 Am on February 24, 1983, towards the end of his examination-in chief has stated that he noticed a burnt wooden danda. there. If Ex.P6 is that burnt danda which was already noticed by Public Witness 23 on the roof of said house C-33 , February 24, 1983 itself, how could that may have been discovered within the meaning of Section 27 of the Evidence Act at a later stage on March 16, 1983 at the instance of the accused. Moreover, the prosecution has not been able to show that Ex.P6 was actually used for assault on the deceased . By way of a question it was put to Dr.A.K.Sen Public Witness 15 thus: “IF any injury is caused by a danda on the skull and there is no fracture in injury and the tissues had burnt and after the death of the injured, whether it is possible to opine by a medical expert whether there was any ante mortem injury or not?”
(16) Answer given to this question was as under: "IF the tissues had completely burnt as in the present case it is impossible to opine whether there was any injury ante mortem or not in the circumstances mentioned in the question." (17) From the above reply given by Public Witness 15 it is manifest that as the tissues were completely burnt it was not possible to opine if the deceased was having any ante mortem injury. Ex. P-6 thus has no relevancy in this case. (18) Circumstance (d): Indisputably accused was working as a conductor in D.T.C. and was to report for duty at Wazirpur Depot-II on February 24, 1983 at 4.50 AM. It is in the deposition of Inder Singh Public Witness 10 that the accused reported for duty at the said Depot at 5.25 Am and his presence was recorded by him at point 'B' in the register extract whereof is Ex.PW 10/A. Accused too does not dispute that he reported for duty at 5.25 Am instead of 4.50 Am as is the case of the prosecution. (19) It was argued by Shri Sethi that even if the circumstances relied upon by the prosecution are established, those are insufficient to record a finding of guilt against the accused under Section 302 Indian Penal Code and in support of this argument strong reliance was placed on the authority of Sharad Birdhichand Sarda Vs State of Maharashtra, . Observations made on pages 1655 and 1656 of the report which are relevant read thus: "A close analysis of this decision would show that the following conditions must be fulfillled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established." (20) It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade Vs State of Maharashtra, where the following observations were made: "CERTAINLY,it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
“(2)the facts so established should be consistent, only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”
(21) It is in the testimony of Krishan Chand Public Witness 3 that the deceased was living in a set of two small rooms alongwith the accused, her parents-in-law, sisters-in-law and also the brother-in-law numbering 8-9. Taking note of the principles enunciated in the case of Sharad Birdhichand Sarda (supra) obviously proved circumstances (a) and (d) are insufficient to hold the accused guilty of his having intentionally committed the murder of Smt.Krishna as alleged by the prosecution. It is indeed unfortunate that Smt.Krishna lost her life and the culprit goes unpunished. But it would be still worse if the accused is held responsible for the same merely on the basis of the said insufficient evidence or suspicion, howsoever strong. Therefore, the conviction of accused deserves to be set aside.
(22) For the reasons as stated above, the appeal is allowed and the impugned judgment and order are set aside. Appellant is acquitted of the charge under Section 302 Indian Penal Code .
