JUDGMENT 1. - Trouble, torture, reproach, disaster. what all have not Radha suffered in her married life ? Her dead body was found in her inlaw's house with ligature marks on her neck. Her husband Jagdish, mother-in-law Smt. Bhagwati and father-in-law Nand Lal were arrested by the police for committing her murder. They were tried by the Additional Sessions Judge No. 2 Ajmer in Sessions case No. 8/1992 (old No. 36/91) and convicted and sentenced as under: (i) JAGDISH - 302 of the Indian Penal Code - life imprisonment 304-B I.P.C. - no order of sentence 201/511 I.P.C. - two years rigorous imprisonment. (ii) NANDLAL AND SMT. BHAGWATI 304-B I.P.C. - seven years simple imprisonment 201/511 I.P.C. - two yeas simple imprisonment The sentences had to run concurrently. 2. Aggrieved by the conviction, present action for filing the appeal has been resorted to. 3. The material facts that lie in short compass are thus : (i) Informant Hiralal Mali (PW 7), neighbour of the accused appellant lodged a written report (Ex.P 5) on 18.7.91 at 2.30 PM. with the police station Sawar, Dist Ajmer, stating therein that about five years back Smt. Radha (deceased) was married to Jagdish Sunar (accused appellant) who about six months before, entered into second marriage with Smt. Lad but she could not adjust with him and left his house. Again, to arrange his another Nata Marriage' a few persons came from Jaipur but on found his first wife Smt. Radha in his house they imposed condition to do away with her first. As such to secure this object, Jagdish, his father Nand Lal and Nand Lai's wife committed murder of Smt. Radha whose body was lying in their house and they wanted to cremate it hurriedly The neighbours suspected motive of dowry behind the murder A case under section 304-B I PC. was registered at the Police Station Sawar and investigation commenced (ii) Post-mortem of dead body of Smt. Radha was conducted by Dr. Arun Kumar Bhargava (Pw. 16), Dr. A.K. Sharma (PW 17) and Dr. Mahesh Agrawal (PW. 12) and following observations were made by them in the post-mortem report (Ex.P 8) : "Dark coloured blood tinged froth present in mouth and initial faceal matter came out of anus. 0.7 cm. Arun Kumar Bhargava (Pw. 16), Dr. A.K. Sharma (PW 17) and Dr. Mahesh Agrawal (PW. 12) and following observations were made by them in the post-mortem report (Ex.P 8) : "Dark coloured blood tinged froth present in mouth and initial faceal matter came out of anus. 0.7 cm. wide mark of ligature present from right mastoid process, front of neck, left side of neck right up to the middle of the post part of spinal column. Darkening almost black colouration of the skin present on face, neck and upper part of the chest. Post-mortem lividity present, post on back and pressure points." In the internal examination fractures of tracheal cartilages and fracture of hyoid bone were found. The cause of death was asphyxia as a result of ante-mortem strangulation by a cord. (iii) The I.O. recovered 45 ft. long plastic cord at the instance of accused Jagdish Sunar through recovery memo (Ex.P 3) Three letters Ex.P 8, P 9, P 10 were also recovered out of which two were said to be in the hand writing of deceased Smt. Radha. (iv) After usual investigation, Investigating Officer laid the charge-sheet in the court of Addl. Munsif and Judicial Magistrate, Kekdi from where the case was committed to the court of Addl. Dist. and Session Judge, Beawar. On 8.11.91 charges Under section 304-B and 306 were framed. The accused appellants denied charges and claimed trial. The case was again transferred to the court of Addl. Dist. and Session Judge No. 2, Ajmer on 31.3.92. (v) The prosecution examined as many as 18 witnesses in support of its case, thereafter statements of accused appellants were recorded Under section 313 Cr.PC. No witness on behalf of defence was produced and the case was posted for final argument. On 2.8.94 an application was filed by Addl. Public Prosecutor for framing addl. charges Under section 302 and 201/511 I.P.C. against the accused persons. The application was accepted by the trial court vide order dated 16.8.94 and additional charges were framed Under section 302 read with 201/511. Accused persons denied the charges but the prosecution witnesses already examined, were not recalled as the counsel for the accused did not want to cross-examine them. (v) The trial court convicted and sentenced the accused persons as mentioned therein above. 4. Mr. Accused persons denied the charges but the prosecution witnesses already examined, were not recalled as the counsel for the accused did not want to cross-examine them. (v) The trial court convicted and sentenced the accused persons as mentioned therein above. 4. Mr. A.K. Gupta, the learned counsel, has contended that there is no eye-witness of the occurrence and the case hinges on the circumstantial evidence. There was a broken chain of links and accused could not have been convicted. The learned counsel further contended that there was no evidence to connect the accused appellants with the offence Under section 302 I.RC. The conviction of accused appellants Under section 201 read with Section 511 I.PC. was also bad in law as no evidence was adduced to prove this charge. The witnesses examined by the prosecution had made improvements in their statements and in view of the contradictions in their statements, they could not be termed as reliable witnesses. The provisions of Section 304-B I.P.C. was not applicable in this case. The letters recovered by the prosecution also did not connect the appellants with the crime. Marriage of accused appellant Jagdish with deceased Smt. Radha had taken place in `Samuhik Vivah Sammelan' and no dowry was paid at that time. The examination of the accused persons Under section 313 Cr.P.C. was also illegal. 5. On the other hand Mr. R.S. Agrawal, the learned Public Prosecutor, has supported the judgment of the trial court and asserted that the accused persons were rightly convicted. 6. We have given our anxious and thoughtful consideration to the arguments advanced before us. We have carefully scrutinised the record of the trial court. It is well settled that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one interference that the accused committed the crime. If no other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit of doubt. The court must weigh the evidence of the cumulative effect of the circumstances. Therefore the point for consideration before us is as to whether the trial court appreciated the evidence of the prosecution properly and as to what were the circumstances which pointed towards the guilt of the accused persons. The trial judge had framed following four questions . The court must weigh the evidence of the cumulative effect of the circumstances. Therefore the point for consideration before us is as to whether the trial court appreciated the evidence of the prosecution properly and as to what were the circumstances which pointed towards the guilt of the accused persons. The trial judge had framed following four questions . (i) Whether in the morning of 18.7.91 Smt. Radha was murdered intentionally by the accused persons who were residing in the house of Jagdish and whether there act comes under the purview of Section 302 I.PC. ? (ii) Whether in order to destroy the evidence connected with murder of Smt. Radha, the accused persons had made preparation for cremating her dead body and whether their act comes under the purview of Section 302 and 201 read with Section 511 of the I.PC. ? (iii) Whether Smt. Radha being unable to bring dowry was harassed and tortured by the accused persons, and whether her death was unnatural and whether the accused persons were liable for offence under section 304-B I.PC. ? (iv) Whether the accused persons ill treated the deceased for not bringing dowry and instigated her to commit suicide and whether the act of the accused oersons comes under the purview of Section 306 I.P.C. ? 7. Now, in order to scrutinise the findings of the trial judge, we proceed to examine the evidence of the prosecution. Smt. Shanti (PW 1) stated that Nand Lal called him and intimated about the death of Radha. She found Radha dead but she did not stay there. Gopal (PW. 2) took thela of firewood to the cremation ground on being intimated by Jagdish that his wife was dead. Ajiz Mohd. (PW. 3) was a witness of inquest memo (Ex.P 1). He resided near the house of the accused appellants. He together with other neighbours had suspicion about the death of Radha, so all of them had gone to the police and lodged the report. Chand Mohd. (Pw. 4) was also a witness of inquest memo (Ex.P 1) cord was also recovered before him from the house of Nandlal through recovery memo (Ex.P 3). He had signed on the said recovery memo. He stated in the cross- examination that he did not recollect as to at what time the cord was shown to him. Ladu Ram (Pw. 5) was also a neighbour of the accused. He had signed on the said recovery memo. He stated in the cross- examination that he did not recollect as to at what time the cord was shown to him. Ladu Ram (Pw. 5) was also a neighbour of the accused. When he came to know about the death of Radha, he went towards her house, where he did not hear hue and cry from inside. The preparations for taking the dead body to cremation ground, were in progress. Suspecting a foul play, he and other neighbours went to police station and lodged a report. The police came to the house of the accused persons. He also accompanied the police and found a mark on the left side of neck of the dead body. He had signed over site plan (Ex.P 4) as well as inquest report (Ex.P 1) and memo of inspection of dead body (Ex.P 2). A cord was also recovered from the house of Nand Lal. He had signed over recovery memo (Ex.P 3). Bhanwar Lal (Pw. 6) had heard quarrel in male and female voices at about 10-11 PM. from the house of Nand Lal, a day before the incident, when he was coming from the house of his brother. He had signed over the report (Ex.P 5) and had seen the dead body, on the neck of which he found a mark of cord. He also signed over inquest report (Ex.P 1). Inspection memo of dead body (Ex.P 2) and site plan (Ex.P 4). The FIR was written by Hira Lal but he did not inform Hiralal that he heard quarrel in male and female voices from house of Nand Lal. Hira Lal (PW. 7) lodged the FIR with the police. On 18.7.91 when he returned from the school, he found many persons gathered in the neighbourhood. Bhanwar Lal told him that Nand Lal and his family members had murdered their daughter in law. They went inside the house of Nand Lal where preparations for carrying the dead body to cremation ground were in progress. On being asked, Nand Lal informed him that Radha died from pain in stomach. All the family members were present there. Nobody was weeping in the house. He lodged report in order to prevent them from destroying evidence. Their behaviour with Radha was not good. They used to beat her. After Radha, Jagdish contacted second marriage with Kishna @ Lad. On being asked, Nand Lal informed him that Radha died from pain in stomach. All the family members were present there. Nobody was weeping in the house. He lodged report in order to prevent them from destroying evidence. Their behaviour with Radha was not good. They used to beat her. After Radha, Jagdish contacted second marriage with Kishna @ Lad. He again wanted to marry with third lady of Jaipur, that is why they used to torture Radha as relatives of third lady from Jaipur, had imposed a condition to do away with Radha. He also heard voices of quarrel and weeping at 11 PM. in the preceding night when he was passing in front of the house of Nand Lal. Radha used to tell his wife that she was given beating in her in laws' house. He had-seen the marks of cord on the neck of dead body. He had signed on the memos prepared by the Investigating Officer. Ratanlal (PW. 8) stated that on 17.9.91 Bhagwati wife of Nand Lal was wandering here and there and found uttering "Peet dali - Peet dali". On 18.9.91 when he was going to get treatment of his injured thumb, he heard in the market about the death of Radha in suspicious circumstances Nand Lal and his family did not communicate the information of Radha's death in the community. Nobody was crying in agony in Nand Lai's house. They were sitting in their shop while the dead body was lying in their house. In his cross- examination he admitted that there was a litigation between him and Nand Lal in the court of S.D.M. and because of the litigation they have stopped going in each others house. The police only lodged the report after closing whole of market in protest by the villagers. His statements were recorded by police after three-four days. On being confronted with the statement recorded Under section 161 Cr.PC. (Ex.D. 1) he agreed that there were many omissions in it. Facts regarding dowry, preparations for cremation and third marriage did not find place in his earlier statement. Baiu Ram Nai (PW 9) stated that he was called by Nand Lal on 18.7.91 and was intimated that wife of Jagdish was dead as no other barber was available, his services were needed for summoning the persons for cremation. He did not oblige Nand Lal and came back. Kishna (Pw. Baiu Ram Nai (PW 9) stated that he was called by Nand Lal on 18.7.91 and was intimated that wife of Jagdish was dead as no other barber was available, his services were needed for summoning the persons for cremation. He did not oblige Nand Lal and came back. Kishna (Pw. 10) second wife of Jagdish, stated that after her marriage she came to know that Jagdish was already married with Radha. She stayed in the house of Jagdish for about one and half month. During this period she and Radha were harassed by Jagdish, Nand Lal and his wife used to demand dowry and used to beat both of them. She was not in a position to arrange dowry and left the house. She admitted in the cross-examination that she was taken to the police by the persons from parental side (peehar wala) of Radha. She did not inform the police about the incident of `mar peet'. She did not tell anybody that dowry was demanded from her and Radha. She admitted that ladies used to cover their faces with veil in the house of Nand Lal and she was against it. She wanted to wear Salwar-Kurta and when not permitted to do so she left the house of in-laws. Chetan Prakash (PW. 11) real brother of deceased, stated that death of Radha was unnatural. Two months before her death he had gone to meet Radha but was not allowed to meet her, only on the pursuation of the villagers he could meet her. She told him that her husband, father-in-law Nandlal and his wife used to demand dowry and often beat her. He exhibited two letters Ex.P 8 and Ex.P 9 written by Radha and Ex.P 10 written by accused Nand Lal. But in his cross-examination he admitted that marriage of Radha with Jagdish was contacted in 'Samuhik Vivah Sammelan' without dowry. He also admitted that Radha visited their house many times after marriage. It may be mentioned here that inland letters (Ex.P 9) said to have been written by Radha, does not bear post office seal. Dr. Mahesh Agrawal (PW 12), Dr. Arun Kumar Bhargava (PW 16) and Dr. A.K. Sharma (Pw 17) have proved the details mentioned in post-mortem report (Ex.P 8). Satya Narain Soni (PW. 13), uncle of the deceased stated that after marriage dowry was arranged for Radha. Jagdish Narain (PW. Dr. Mahesh Agrawal (PW 12), Dr. Arun Kumar Bhargava (PW 16) and Dr. A.K. Sharma (Pw 17) have proved the details mentioned in post-mortem report (Ex.P 8). Satya Narain Soni (PW. 13), uncle of the deceased stated that after marriage dowry was arranged for Radha. Jagdish Narain (PW. 14), father of deceased Radha almost stated what his son Chetan Prakash (PW. 11) deposed. A typed written complaint (Ex.D 4) was sent by him to Police Station, Sawar on 19.7.91. Gaja Nand Verma (Pw. 15) and Ranjeet Singh (PW. 18) had investigated the case.In their statements Under section 313 Cr.PC. the accused appellants stated that Jagdish and Radha were living separately. Radha committed suicide as she was issueless and was depressed. 8. There is no direct evidence in this case in so far as the murder of Radha is concerned. The trial court has not dealt independently the circumstance relied upon by the prosecution. The judgment of the trial court is based on the four points stated hereinabove. It was the duty of the trial judge to analyse the evidence to see whether all the links in the chain of events are established or not ? Circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence. In a case based on circumstantial evidence the court has to be on its ground to avoid the danger of being swayed by emotional considerations, however strong they may be to take the place of proof. A perusal of judgment under appeal revels that the trial court did not avoid the danger of being swayed by emotional considerations. Poetry of Jermy Taylour and philosophy of marriage had been discussed at length by the trial judge but the circumstances on which prosecution relied, could not find place in the judgment. 9. We shall, therefore analyse the evidence to see as whether the established circumstances are consistent only with the hypothesis ' the guilt of the accused persons and totally inconsistent with their innocence.LIGATURE MARKS ON THE NECK OF DEAD BODY 10. The crucial question in this case is whether Radha died due to suicide or homicide. The I.O. had not investigated the case as to on which place the occurrence took place. How and in what manner cord was tied on her neck ? The crucial question in this case is whether Radha died due to suicide or homicide. The I.O. had not investigated the case as to on which place the occurrence took place. How and in what manner cord was tied on her neck ? The prosecution witnesses only stated that they had seen her dead body lying with marks of cord on her neck. It cannot be inferred from the facts as to whether the room in which her death is occurred was bolted from inside or not ? Dr. Mahesh Agrawal (PW. 12) on internal examination of dead body of Radha, found fractures of tracheal cartilages and hyoid bone and cause of her death was asphyxia on account of strangulation. Dr. A.K. Sharma (PW. 17) in his cross-examination stated that fracture of hyoid bone may be caused by hanging with a cord tied on neck.Accused Jagdish had stated in his statement recorded Under section 313 Cr.PC. that Radha was issueless and was depressed and that is why she committed suicide.These circumstances clearly establish that death was not due to homicide, but one of suicide. It is settled legal position that when two inferences are possible, the inference favourable to the accused ought to have been followed. Here also the inference of suicide prevails over the inference of homicide.Therefore we hold that the ligature marks on the neck of the dead body were suicidal and not homicidal.PREPARATIONS FOR CARRYING DEAD BODY TO CREMATION GROUND 11. The prosecution has adduced ocular evidence to prove that preparation to carry the dead body of Radha to cremation ground was in progress. The I.O. did not seize any material from the place of incident.Bamboo sticks, grass, red clothes and other material necessary for the last rites of the deceased ought to have been recovered from the spot. The neighbours had suspicion of foul play and they lodged the report with the police and closed the market to show their protest. The oral testimony of neighbours is not sufficient to adjudge the accused appellants guilty of murder and for destroying the evidence of crime.RECOVERY OF CORD 12. Plastic cord 45 feet long, was recovered from the house of accused Nand Lal through recovery memo (Ex.P 3), Chand Mohd. (Pw. 4) and Ladu Ram (Pw. 5) were the witnesses of recovery memo but they did not say a. to whose instance the said recovery was effected. Plastic cord 45 feet long, was recovered from the house of accused Nand Lal through recovery memo (Ex.P 3), Chand Mohd. (Pw. 4) and Ladu Ram (Pw. 5) were the witnesses of recovery memo but they did not say a. to whose instance the said recovery was effected. They had only proved their signatures. The cords are generally found in the houses. In this case cord 45 feet in length, was recovered. Length-of the cord creates doubt about its using the commission of guilt. The prosecution has failed to connect this cord with the guilt. The recovery of cord thus, is also of no help to the prosecution.DEMAND OF DOWRY AND PRESUMPTION ATTACHED TO DEATH 13. Hira Lal (Pw. 7) stated that he heard voices of quarrel and weeping at 11 PM. in the preceding night of the incident when he was passing in front of the house of Nand Lal but he had not mentioned this fact in the FIR. He also stated that Radha used to tell his wife about the ill treatment of the accused persons but wife of Hira Lal was not produced by the prosecution. Bhanwarlal (Pw. 6) also did not inform any body that he heard the voices of quarrel in the preceding night of the incident. Though he was present at the time of institution of FIR but he did not inform Hira Lal, the scribe of FIR about this fact. Sum and substance of the evidence of other witnesses who were neighbours, are that they suspected foul play as nobody was weeping in the house and they had seen marks of cord on the neck of the deceased so they informed the police and prevented cremation of dead body. Ratan Lal (Pw. 8) admitted the litigation between him and Nand Lal and they stopped going in each other's house. The statement of Kishna (Pw. 10) appears to be after thought her testimony has been shattered in the cross-examination. Chetan Prakash (Pw. 11) is the brother of the deceased, Jagdish Narain.(Pw. 14) is her father and Satya Narain Soni (Pw. 13) is her uncle. They made allegations of dowry against accused appellants after receiving the message of the death of Radha, produced three letters, received by them by post. We have minutely perused the letters. In one of the letters seal of post office is missing. 14) is her father and Satya Narain Soni (Pw. 13) is her uncle. They made allegations of dowry against accused appellants after receiving the message of the death of Radha, produced three letters, received by them by post. We have minutely perused the letters. In one of the letters seal of post office is missing. How the letter could reach in the hands of the parents without seal of the post office ? Further, the prosecution could not prove the letters in the hand writing of deceased Radha. The letter said to have been written by accused N and Lal also could not have been proved legally. From the evidence of the prosecution one fact was also established that Radha was issueless and because of this reason she was depressed. Had the accused appellants greedy would have they agreed to marry in the Samuhik Vivah Sammelan' without dowry? The prosecution does not have the answer to this question. We also perused the statements of the witnesses recorded by the police. In all the statements, the allegations of dowry were appears to be incorporated in the last lines. In the report (Ex.P 4) lodged by the father of the deceased, the prosecution had introduced a new story. The prosecution also failed to prove the actual year of marriage of accused Jagdish and Radha. We therefore cannot draw presumption and are unable to call the death of Radha as `dowry death'. In our considered view, provisions of Section 304-B of Indian Penal Code are not attracted in this case. The charges under section 302 and 201/511 of Indian Penal Code were added after the prosecution evidence was closed but no material was placed on record to prove these charges. 14. Mr. R.S. Agrawal, the learned PP, has placed reliance on Ganesh Lal v. The State of Maharashtra [1992(3) Supreme Court Cases 106] and State of U.P. v. Dr. Ravindra Prakash Mittal, ( AIR 1992 S.C. 2045 ) . These cases are distinguishable. In Ganeshi Lai's case (supra), the Apex Court after discussing the facts in details, observed that the death of Kanchna was not due to suicide, but one of homicide. In that case there was no evidence or even suggestion that the deceased Kanchna had committed suicide. Ravindra Prakash Mittal, ( AIR 1992 S.C. 2045 ) . These cases are distinguishable. In Ganeshi Lai's case (supra), the Apex Court after discussing the facts in details, observed that the death of Kanchna was not due to suicide, but one of homicide. In that case there was no evidence or even suggestion that the deceased Kanchna had committed suicide. The evidence of the prosecution was found consistent and reliable In that case Ganeshi Lal accused himself lodged FIR, that while Kanchna was drying wet clothes on the top floor there was short circuit in the house resulting in her death. This report was found false as it was revealed from the testimony of the witnesses that Kanchna was made to lie down in a supine position on the ground, thereafter, kerosene appears to have been poured from the tin brought by some one and set her fire. 15. In Dr. Ravindra Prakash Mittal's case (supra), 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. But the totality of circumstantial evidence revealed that the husband committed murder of his wife by strangulation. 16. From the above discussion it emerges that none of the circumstances relied upon by the prosecution to connect the appellants with the crime have been established by the prosecution. On an independent appraisal of the evidence on the record, we have unhesitatingly come to conclusion that the trial court was not justified in convicting and sentencing the appellants for the offences Under section 302, 304-B and 201/511 of the Indian Penal Code. The finding of guilt recorded against the appellants by the trial court is not sustainable in law At page 28 of the judgment the trial court observed that tendency of selfish animal was born inside the accused persons, they became emotionless and could not hear even their heart-beating they became greedy of dowry and committed cruel murder of a young lady. Pages 28 and 29 of the judgment of the trial court are full of philosophical thoughts and it appears to us that the trial court got swayed by emotional considerations and allowed suspicion, surmises and conjuctures to take the place of legal proof. 17. Pages 28 and 29 of the judgment of the trial court are full of philosophical thoughts and it appears to us that the trial court got swayed by emotional considerations and allowed suspicion, surmises and conjuctures to take the place of legal proof. 17. This appeal is consequently allowed and conviction and sentence of the appellants are set aside. Accused appellant Jagdish is in jail. He be released forthwith if not required in any other case. Accused appellants Nand Lal and Smt. Bhagwati are on bail. They need not surrender. Their bail bonds stand discharged.Appeal allowed - Conviction and sentence of appellants are set aside. *******