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2016 DIGILAW 1737 (ALL)

PHOOL SINGH v. STATE OF U. P.

2016-05-06

K.J.THAKER, SHASHI KANT GUPTA

body2016
JUDGMENT Hon’ble Kaushal Jayendra Thaker, J.—Heard Sri D.K. Singh, Sri Jyoti Prakash, learned counsel for the appellants, Sri Subhash Singh Yadav, learned counsel for the complainant, Sri Ram Yash Pandey, Sri S.N. Tripathi, Sri Pradeep Pandey, Sri Uma Kant Mishra, Sri V.P. Tripathi, Sri Ram Sagar Yadav and Sri Rahul Asthana, learned AGA appearing on behalf of the State. 2. The appellants four in number, were facing trial under Section 302 IPC read with Section 34 Indian Penal Code before the learned Additional Sessions Judge, Ghazipur. The learned Additional Sessions Judge, Ghazipur convicted the accused and sentenced them to life imprisonment for murder. The aggrieved appellants, namely Phool Chand-appellant No. 1, Appellant No. 2 and Smt. Gulainchi-appellant No. 4 have died during this period of thirty years and only Chhangur the husband of the deceased is alive. Order dated 20.11.2015 passed by this Court indicates that the appeal has already been dismissed as abated as against the appellant Nos. 1, 2 and 4. As such, we are required to consider this Appeal only qua Appellant No. 3 Chhangur. 3. The investigation was moved into motion first by Phool Chand, accused No. 1 by reporting that his daughter-in-law had accidentally died. The police machinery on that very day prepared the Panchanama and sent the case for post-mortem later on father of the deceased felt that his daughter was done to death and on the basis of his report, further investigation started and the accused were charge-sheeted before the Court of learned Magistrate. The case was committed to the Court of Sessions Judge as it was session trialable case. 4. The learned Sessions Judge made over the trial to Additional Sessions Judge and the case was numbered as Session Trial No. 230 of 1984. The charges framed by the Additional Sessions Judge against the appellant are “that on 10th day of August, 1984 at about 6 p.m. in Village Maheshpur, P.S. Nonhara with common intention of all, committed the murder of Smt. Savitri and thereby committed an offence punishable under Section 302 read with Section 34 IPC which is within my cognizance and I hereby direct that you be tried by me on the said charge”. 5. The accused pleaded not guilty. The prosecution examined the witnesses and produced documents. The accused examined three defence witnesses in their favour. The statement of accused under Section 313 Cr.P.C. was recorded. 6. 5. The accused pleaded not guilty. The prosecution examined the witnesses and produced documents. The accused examined three defence witnesses in their favour. The statement of accused under Section 313 Cr.P.C. was recorded. 6. The learned Advocates were heard by the learned Sessions Judge who convicted four accused under Section 302 read with Section 34 of Indian Penal Code and acquitted one accused. 7. The brief facts of the present case are that the deceased Smt. Savitri Devi who was aged about 25 years was daughter of Suraj Prasad (PW-3) and was married to accused Chhangur on 7.6.1982 They had a daughter out of the said wedlock. Accused Phool Chand was father-in-law of the deceased and Smt. Gulaichi is the wife of Phool Chand and Smt. Sheomunia is the sister of Phool Chand and they are resident of village Maheshpur and P.S. Nonahra, District Ghazipur. It is further case of the prosecution that the accused were dissatisfied with the dowry and presents given by the father of the deceased in the marriage of the deceased with Chhangur. A gold chain and scooter were demanded from the father of the deceased and in case of his failure to meet the demands, they used to misbehave, maltreat and terrorise the deceased. On 10.8.1984, it is alleged that on the failure of the father of the deceased to meet the demands of the accused, all the accused strangulated the deceased to death and in order to conceal their act of strangulation, they burnt the deceased and raised a false hue and cry that she died because of fire during the course of cooking. In the following morning, accused Phool Chand himself gave information at P.S. Nonahra to the effect that his daughter-in-law had died because of fire in the course of cooking. This report was taken down at 7.10 hours in the G.D. of the Police Station on 11.8.1984 (Ext Ka -1). Brij Mohan Singh S.I. (P.W.-8) who was posted as S.O. Nonahra went to the spot on the same day at about 10.30 a.m. He took the dead body of the deceased in possession of the police and conducted its inquest proceeding and prepared an inquest report (Ext. Ka-10). He sent the dead body for post-mortem examination with the connected documents (Exts. Ka-11 to Ka 15). Ka-10). He sent the dead body for post-mortem examination with the connected documents (Exts. Ka-11 to Ka 15). He found smell of kerosene oil from the dead body of the deceased as well as from her clothes. The post-mortem of the deceased was conducted by Dr. K.K. Srivastava (P.W.-6) on the same date at 4.30 p.m.. By post-mortem examination the Doctor found that asphyxia due to strangulation was the cause of her death. After receipt of the post-mortem report, the case was converted under Section 302 IPC vide G.D. (Ext. Ka 2). Suraj Prasad (P.W. 3) the father of the deceased, on receipt of the information of death of his daughter, also lodged written report (Ext. Ka 3) at the Police Station alleging that actually murder of his daughter had been committed by all the five accused. 8. In the course of investigation, Sri Brij Mohan Singh, S.I. (P.W. 8) prepared the site plan (Ext Ka 16). He also recovered the bottles of kerosene oil containing small quantity of kerosene, half burnt clothes of the deceased emanating smell of kerosene oil and a lathi (Ext 7 to 9) from the house of the accused and prepared a memo (Ext Ka 4). He also recorded the statements of the witnesses. On 14.8.1984 by orders of the S.P. (Ext Ka 17), investigation was taken over by Sri Mukesh Babu Shukla C.O. Sadar. The father of the deceased submitted letters (Exts Ka 5 to Ka 8) written to him by the deceased which were taken in police custody vide memo (Ext. Ka 18). After completing the investigation the C.O. Submitted charge-sheet (Ext Ka 19) against all the accused persons. 9. The witnesses whom the prosecution examined to bring home the charges are as follows : 1. Deposition of Jagar Nath Ram 6.4.1985 P.W.1 2. Deposition of Kedar Singh 13.5.1985 P.W.2 3. Deposition of Suraj Prasad 25.5.1985 P.W.3 4. Deposition of Sadafal 3.6.1985 P.W.4 5. Deposition of Recalled 25.6.1985 P.W.4 6. Deposition of C/Lalta Raj 25.6.1985 P.W.5 7. Deposition of Dr. K.K. Srivastava 6.7.1985 P.W.6 8. Deposition of Ram Janam Ram 22.7.1985 P.W.7 9. Deposition of Brij Mohan Singh SI 22.7.1985 P.W.8 10. The prosecution examined eight witnesses and in support of its case produced following documentary evidence. Documents : 1. Application of Suraj Prasad 12.8.1984 Ex. K.a. -3 2. R.M. of half Burn Clothes 11.8.1984 Ex. K.a. -4 3. Letter 9.9.1984   Ex. Deposition of Ram Janam Ram 22.7.1985 P.W.7 9. Deposition of Brij Mohan Singh SI 22.7.1985 P.W.8 10. The prosecution examined eight witnesses and in support of its case produced following documentary evidence. Documents : 1. Application of Suraj Prasad 12.8.1984 Ex. K.a. -3 2. R.M. of half Burn Clothes 11.8.1984 Ex. K.a. -4 3. Letter 9.9.1984   Ex. K.a. -18 4. P.M. Report 11.8.1984 Ex. K.a. -9 5. Panchayatnama 11.8.1984 Ex. K.a. -10 6. Charge-sheet 12.9.1984 Ex. K.a. -19 11. In defence the accused also examined three witnesses, namely, Saraju-D.W.-1, Shami-D.W.-2 and Bhagwan-D.W.-3. 12. This was the evidence which was produced before the trial Court and after examining the records before the Court. The medical evidence is of vital importance in this case as to come to the finding as to the cause of death. 13. Dr. K.K. Srivastava (P.W. 6) who examined her dead body on 11.8.1984 at 4.30 p.m. Found the following external injuries on body of the deceased : (I) 2nd to 3rd degree burn on entire skull and face. (II) 2nd and 3rd degree burn on entire both limbs. (III) 2nd and 3rd degree burn on entire track. (IV) 2nd to 3rd degree burn on entire both thighs and upper 1/3rd of both legs. Total burn was found to be about 80%. Over and above the burn injuries, the Doctor also found a transverse ligature mark 13 cm x 1 cm on the neck extending from right antero to left antero surface of neck below thyroid cartilage. Skin at the ligature mark was parchment like. Dark blood was found coming from nostrils and mouth and hard blood catters were found in the ears. On internal examination of the body, the bones of skull were found gaped. The membranes were congested. Pleura was congested. Trachea was congested and was found fractured below thyroid cartilage. Haematome was found present under the skin and inside trachea. Both the lungs were congested. Perie ardium was congested. The right chambers of heart were found containing dark fluid blood. Spleen and kidneys were congested. The doctor further found smell of kerosene coming out from the body and clothes of the deceased. According to the Doctor her death was caused by asphyxia due to strangulation. The Doctor has further given his opinion that the burn injures could have been caused by burning her shortly after her death due to strangulation. Spleen and kidneys were congested. The doctor further found smell of kerosene coming out from the body and clothes of the deceased. According to the Doctor her death was caused by asphyxia due to strangulation. The Doctor has further given his opinion that the burn injures could have been caused by burning her shortly after her death due to strangulation. According to him she had not died because of her burn injures. The Doctor has also confirmed that her death was caused at near about 5 p.m. on 10.8.1984. 14. Heard learned Advocates for the parties. 15. The learned counsel for the appellants heavily relied on the decisions in the case of Nagaraj v. State Rep. by Inspector of Police, Salem Town, Tamil Nadu, JT 2015 (3) SC 117, State through Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109 and Abdulwahab Abdulmajid Baloch v. State of Gujrat, (2009) 11 SCC 625 . 16. As against this, learned Public Prosecutor defends the conviction and heavily relied upon the evidence of the doctor, the finding of facts of the learned trial Judge and documentary evidence he submitted that the submission of learned Advocate for the appellants that the witnesses, PW-2 and PW-3 were inimical to the accused, and therefore, have motive to falsely implicate the appellants is without any basis. He also submitted that the evidence of the defence witness has rightly been disbelieved by the learned Trial Judge. 17. The main question for consideration in this case is whether the death of the deceased was caused due to accidental fire in the course of cooking or she was strangulated to death and then was subsequently burnt in order to conceal her murder. This question has been answered by the learned Judge that she was strangulated. 18. As per provisions of Section 106 of the Evidence Act, 1872 when any fact is especially within the knowledge of any person, the burden of proving is upon him. It is submitted that the prosecution is not able to discharge establishing the case beyond reasonable doubt and the presumption of innocence has to be believed. 18. As per provisions of Section 106 of the Evidence Act, 1872 when any fact is especially within the knowledge of any person, the burden of proving is upon him. It is submitted that the prosecution is not able to discharge establishing the case beyond reasonable doubt and the presumption of innocence has to be believed. The factual scenario, as it emerges, the place of occurrence is the house of the accused, the death of the deceased has been proved as a homicidal death by ligature marks on her neck and the internal injuries and it is proved beyond reasonable doubt by the evidence of the medical officer that the death was caused by strangulation lacerated wound. The accused tried to show that death occurred in such way so as to show it as an accidental death. It only came in the post-mortem report that it was not an accidental death but homicidal death. It has been factually seen and proved that the prosecution has discharged the burden of establishing that the deceased died due to homicidal death namely due to strangulation. 19. In the case of Nagraj v. State of Rep. by Inspector of Police, Salem Town, Tamil Nadu, it is submitted that the facts in the decision reported in Nagraj v. State of Rep. by Inspector of Police, Salem Town, Tamil Nadu, were more gruesome and however the prosecution case was not believed. He has particularly relied on paragraph 15 which is reproduced below : “15. In the context of this aspect of the law it is been held by this Court in Parsuram Pandey v. State of Bihar, (2004) 13 SCC 189 , that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali v. State of Assam, (2008) 16 SCC 328 . It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali v. State of Assam, (2008) 16 SCC 328 . In Sher Singh v. State of Haryana, (2015) 1 SCR 29, this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person’s right not to incriminate himself. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.”. 20. This judgment will not help the accused as the factual scenario as it emerges in the case of Nagaraj and the findings go to show that the accused was not compelled to be a witness in this case, however the Trial Court has not drawn in adverse infrence against the accused for what he has stated or failed to state in his examination under Section 113. 21. In the decision of (2011) 3 SCC it is held that in every case of murder of wife, husband shall not be held responsible. It is submitted that in the said case even the acquittal was confirmed by the Apex Court and the facts was even bad than in our case. It is submitted that the PW-2 and PW-4 were not present when the incident occurred and, therefore, once it is not proved that Chhangur was a party to the murder, he could not have been held guilty. There is no motive just because it is alleged that Chhangur has also given divorce to his first wife. As stated by PW-7 would not impugn motive and there is no direct evidence and this is a case of circumstantial evidence, and therefore, Chhangur cannot be held to be guilty with aid of Section 34 IPC. 22. It is further submitted that once the charges are not framed, the accused is not obliged to answer the same. It is submitted that in this case there are no charges of Section 498A nor any charges under Dowry Prohibition Act, and therefore, the benefit of (2009) 11 SCC 625 should be granted to the accused and he be acquitted. The submission is that charges are not framed under Section 498A. The benefit should be given to the accused cannot be accepted. The submission is that charges are not framed under Section 498A. The benefit should be given to the accused cannot be accepted. The reason being that it is the motive for commission of offence under Section 302 IPC which is being considered just because charge under Section 498A was not framed, it cannot be said that the accused cannot be convicted, and therefore, none of the decisions show that just because charges are not framed, inference cannot be drawn that there was demand of dowry. This submission is rejected as the accused are not convicted for offence under Section 498A but their motive of causing death and their common intention was because of there illegal demands which were not satisfied, and therefore, this submission and reliance on the decision of Abdulwahab Abdul Majid Baloch v. State of Gujrat, (2009) 11 SCC 625 , cannot help the accused. 23. The principles enunciated for matters based on circumstantial evidence can also be looked into as the chain is complete, and therefore, Chhangur cannot get the benefit of alibi, and therefore, also his conviction requires to be confirmed. 24. The provision of Section 34 of Indian Penal Code refers as follows : “34. Acts done by several persons in furtherance of common intention—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 25. The essence of Section 34 is simultaneously consensus of the mind of the persons participating in the criminal action to achieve a particular result. In the case at hand, as has been indicated earlier, the sole surviving applicants and their intention is clearly reflectible from their conduct and the place of occurrence. Thus, in our considered opinion, the submission that Section 34 IPC is not attracted is extremely specious and does not deserve acceptance. The evidence is clear and ambiguous and the circumstance goes to prove to the guilt of the accused. The acceptance of direct evidence on record and on its proper scrutiny and analysis of proof of acceptance of motive to the case is proved beyond the reasonable doubt and hence, we concur with the finding of facts of the learned Session Judge. 26. The acceptance of direct evidence on record and on its proper scrutiny and analysis of proof of acceptance of motive to the case is proved beyond the reasonable doubt and hence, we concur with the finding of facts of the learned Session Judge. 26. Perusal of the evidence of PW-3, Suraj Prasad, Investigating Officer of the case shows that over and above the unimpeachable testimony of PW-3 and the evidence of letters (Ext. Ka 5 to Ka 8) of the deceased, there is evidence of previous conduct of the accused given by Ram Janam Ram (PW-7). He is resident of village Diahawa in Police Station Nonahra and has stated that the first marriage of accused Chhangur was performed with his niece 7 or 8 years back. The accused treated her also with cruelty on account of the fact that their demand for dowry was not met. They always remarked that they had not received any thing in dowry. On account of it, his niece returned back to his house. The accused did not call her back on account of their alleged deficit payment of dowry. He, therefore, had to perform second marriage of his niece with another person. The testimony of Ram Janam Ram in this respect deserves every credit and could not be challenged by the accused on any ground. He is an altogether independent witness who has revelaed the previous conduct of the accused on account of shortage of dowry. 27. Sadaphal (PW-4) has also given his evidence in corroboration of the same fact. According to him he had also gone to the shop of accused Phool Chand for making purchases in connection with Pooja on the date of last Purnima of SAWAN which was taking place at his house. There was none at the shop. All the family members were inside the house which was bolted from inside. He peeped behind the doors and saw accused Phool Chand, Bhagwan, Chhangur and Smt. Gulaichi quarreling together. He also saw the accused pulling down Smt. Savitri Devi by stretching her hairs when he tried to intervene he was abused and he returned back. When he reached in front of the house of Satya Prakash, he met one Sita and informed him also or it. Shortly after he heard the information that the daughter-in-law of Phool Chand had died on account of burn injuries. When he reached in front of the house of Satya Prakash, he met one Sita and informed him also or it. Shortly after he heard the information that the daughter-in-law of Phool Chand had died on account of burn injuries. He went to the house of the accused and found her dead. The evidence of both these eye-witnesses has been challenged by the accused on account of some discrepancies that have crept in their testimony. According to both of them they were present together at the shop of the accused, they remained together and returned back together. But while according to Kedar (PW 2) the doors of the house of the accused remained closed and were not opened. According to Sadaphal (PW-4), he peeped behind the doors. The doors were opened, he tried to intervene in the quarrel and was abused. The allegation of peeping behind the doors, witnessing the quarrel, attempting to intervene and thereafter being abused by the accused has not been supported by Kedarnath (PW-2). Even if on account of it these allegations are supposed to be embellishments and are not taken into consideration, the fact remains corroborated by both the witnesses that they had goen to the shop of the accused, there was none at the shop and a quarrel was going on between the family fo the accused inside the house, about an hour before the final declaration of death of Smt. Savitri Devi on account of burn injuries in the course of cooking. It has been argued that there were other nearby shops from where the witnesses could purchase Bidi and other articles and there was no occasion for them to go up to the shop of the accused which was at a longer distance. The witnesses have offered reasonable explanation for it. It has further been argued that there existed enmity between accused Phool Chand and Sadaphal (PW-4) on account of which he has falsely deposed against the accused. Sadaphal (PW-4) has denied existence of any such enmity between him and any of the accused persons. The accused have examined Shami (PW-2) who has stated that he was litigating a case with Sadaphal (PW-4) and accused Phool Chand was doing PAIRVI on his behalf in that case. The witness could not give any detail of the case he was litigating with Sadaphal. The accused have examined Shami (PW-2) who has stated that he was litigating a case with Sadaphal (PW-4) and accused Phool Chand was doing PAIRVI on his behalf in that case. The witness could not give any detail of the case he was litigating with Sadaphal. The allegation of accused Phool Chand doing PAIRVI on his behalf appears on the face of it to be false. The witnesses had, therefore, no motive to falsely implicate the accused and there can be no hesitation in accepting the part of their statement that they had found all the family members of the accused quarreling inside their house about an hour before the declaration of the death of Smt. Savitri Devi on account of burn injuries in the course of cooking. 28. The evidence of PW-3 and PW-4 and that of doctor-PW-6 and the Investigating Officers corroborating each other which leaves no doubt in our mind that the investigation was not faulty. The burden of proof in criminal jurisprudence has been properly discharged by the prosecution before the trial Court and no cause or no factual aspect which is such which can give benefit of doubt to accused Chhangur has been brought on record. The false alibi of statement under Section 113 Cr.P.C. alone is not the only basis for his conviction. The time of occurrence is not of controversy as it is admittedly proved by Phool Chandra who gave report to this effect on 11.8.1981 which is much after deliberation and motive for committing the murder is also established from the evidence of her father Suraj Prasad, PW-3 and the letters sent by the deceased to her father which have been proved. Time and again Suraj Prasadused to request accused not to maltreat her. The letters cannot be said to be ante dated or fabricated as they show the dates 26,2.1984, 1.3.1983, 24.6.1984 and 22.4.1984 respectively. The letters in unison proved that the motive of death was well planed much before, as their demands were not met and they were beating her. All these factual scenario complete the chain that the husband was also party to the common intention to do away with Smt. Savitri Devi. The incident took place at the house of accused and they have not produced any rebuttal of incident to prove that they were not present at the time of incident. All these factual scenario complete the chain that the husband was also party to the common intention to do away with Smt. Savitri Devi. The incident took place at the house of accused and they have not produced any rebuttal of incident to prove that they were not present at the time of incident. The alibi raised by Chhangur has been factually disbelieved and has not been proved before the Trial Judge we concur with the finding of fact. There are minor discrepancies in the evidence of PW-2 and PW-3 but they are not such which can give the benefit of doubt to accused, as held above the circumstances speak for themselves even if the testimony of Kedar Singh, PW-2 and Sadafal, PW-4 are discarded. The learned Judge has rightly held that accused strangulated and thereafter burned her cannot be an act of a single person. The reasoning given are so elaborate that we are persuaded to concur with the finding of facts of the learned Judge and particularly paras 26 and 27 of the decision, which have been discussed by us herein above. 29. The ingredients for establishing liability under Section 34 IPC are now well-settled. The learned counsel for the appellant has tried to project that the appellant Chhangur was not involved and his presence at the time of incident was doubtful. In this case it would go to show that enmity which is sought to be created was doubtful and was not believed by the learned trial judge. The circumstances would show that the accused shared the common intention of doing away with the deceased. The common intention can be inferred even from the fact that they were demanding scooter and sikri from the father of the deceased. The letters go to show and testify the same and learned Judge has held that the act done was in furtherance of common intention of all. In this case there was a plan and that there was prior meeting of minds it was pre-oriented plan as can be seen from the facts as they emerge. 30. In his written submission, learned counsel for the appellants has contended that even if the further statement of the accused has not been truthful, the adverse inference cannot be drawn against them. 30. In his written submission, learned counsel for the appellants has contended that even if the further statement of the accused has not been truthful, the adverse inference cannot be drawn against them. He has heavily relied on the decision in Tomaso Bruno and another v. State of Uttar Pradesh, (2015) 7 SCC 178 , has been relied by the learned counsel for the appellant it is a case of circumstantial evidence and the chain was not proving the guilt of the accused and in absence of the discharge of initial burden it cannot be held against the accused. Learned counsel has relied the finding that on death by strangulation (asphyxia). In the said decision the Supreme Court did not accept that the death was by strangulation. In our case the learned trial judge has held that the death was because of the ligature marks and not by burning. The post-mortem report in the cited decision showed absence of any kind of external appearances in cases of death by strangulation viz. the petechiae in the eye, the puffiness and swollen face and protruding out of tongue and petechiae in tongue and bloody foam from the mouth and bulging out of eyes, swelling in tongue, bruising and the base of the neck, nails and finger marks on the neck and hands are clenched were present in this case. Therefore, he was given the benefit of doubt. In case on hand medical evidence proves the fact that the deceased had ligature mark 13 cm x 1 cm on the neck extending from right antero to left antero surface of neck below thyroid cartilage. Skin at the ligature mark was parchment like. Dark blood was found coming from nostrils and mouth and hard blood catters were found in the ears. On internal examination of the body, the bones of skull were found gaped. The membranes were congested. Pleura was congested. Trachea was congested and was found fractured below thyroid cartilage. Haematome was found present under the skin and inside trachea. Both the lungs were congested. Perie ardium was congested. The right chambers of heart were found containing dark fluid blood. Spleen and kidneys were congested. Therefore, it was held that the death was caused by asphyxia due to strangulation. Oral evidence of the doctor was proving the same, and therefore, the decision of the Apex Court would not help the accused. Perie ardium was congested. The right chambers of heart were found containing dark fluid blood. Spleen and kidneys were congested. Therefore, it was held that the death was caused by asphyxia due to strangulation. Oral evidence of the doctor was proving the same, and therefore, the decision of the Apex Court would not help the accused. It is submitted that the prosecution has to stand on its own legs by proving the case on the basis of credible evidence, which they have failed in the present case. In the present case is of circumstantial evidence and the prosecution has not been able to connect the appellant especially the appellant Chhangur from the prosecution evidence in the present case, therefore, at least the appellant Chhangur is entitled to be given the benefit of doubt. 31. Therefore, it is submitted by the learned counsel for the appellants that the investigation is also faulty, no finger prints were found from the scene and there is nothing to show that the accused Chhangur was last seen with the deceased and the learned counsel has submitted that other people had access to the room from where the deceased was found. It is submitted that there was no motive as Chhangur had a daughter of three years and chain of circumstantial evidence is incomplete so as to hold all the accused guilty under Section 302 IPC read with Section 34 IPC and thus because of evasive and trustworthiness of the statement made under Section 313 Cr.P.C., accused cannot be held guilty. The said decision of Nagraj (supra) would not aid the present accused. 32. However, as discussed herein above the conviction is not based only on statement under 313 Cr.P.C. the chain of evidence goes to show that the circumstantial evidence also shows that accused all in unison had the same intention to do away with deceased and shared same intention as per Section 34 of Indian Penal Code. To apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent. 33. Learned Standing Counsel has supported the case of prosecution and submitted that the entire defence story has been vividly discussed by the learned Trial Court in its judgment and the learned trial Court has rightly convicted the appellants for the offence under Section 302 r/w 34 of I.P.C. The said judgment is just proper and legal and do not call any interference by this Hon’ble Court and therefore, remaining appellant Chhangur is liable to be convicted under Section 302 r/w 34 I.P.C. 34. Having considered the judgments cited by learned counsel for the appellants, all the members of the family including the husband were acting in concert with common intention of obtaining gold chain and scooter from her father Phool Chand, father-in-law of the deceased who has lodged the report at police station Nonhara which ultimately proved to be false and it was the other accused who supported the false theory of the death of the deceased due to burn injuries due to cooking. 35. The accused Chhangur tried to take alibi of going to the village of Saraju, DW-1 which has not been believed by the Court below. The presence of the accused Chhangur is confirmed by PW-2 and PW-4. The chain of events goes to show that the deceased was tortured which is evident from Exhibit Ka -5 to Ka 8 which are letter written to her parents. The testimony of Suraj Prasad-PW-3 in this aspect has not been questioned. The fact that there were ligature marks on her neck is also proved. The doctor found 13 cm x 1 cm ligature mark on her neck extending from right antero lateral to left antero lateral surface of her neck below thyroid cartilege with dark blood coming from her nostril and mouth and ears. These are the injures of strangulation. Consciously there was no necessity of strangulation her to death had she died of the burn injuries. Strangulation on the face of it, could only have been caused before she was burnt to death. Hence by the medical evidence it is confirmed that cause of her death as asphyxia due to strangulation. These are the injures of strangulation. Consciously there was no necessity of strangulation her to death had she died of the burn injuries. Strangulation on the face of it, could only have been caused before she was burnt to death. Hence by the medical evidence it is confirmed that cause of her death as asphyxia due to strangulation. The burn injures must in all probabilities had been caused after her death by strangulation. The learned counsel for the accused has failed to offer any explanation whatsoever of the ligature mark found by the Doctor on her neck. It could not be explained by any hypothesis and irresistible conclusion is that the ligature mark on her neck was caused by strangulation and her death was caused by Asphyxia due to strangulation. The burn injuries must in all probability been caused after her death by strangulation. This negatives the plea of the accused that she died due to burn injuries in the course of cooking and goes in confirmation of the prosecution version that her death was caused by asphyxia and due to strangulation. The accused has tried to project that it was case of accidental death whereas only after post-mortem was carried out and it revealed that it was not a case of accidental death but there was a death by strangulation. This finding of fact given by the learned Judge could not be disputed by the learned counsel for the appellants and it goes without saying that the deceased was done to death by the beating, and therefore, Section 34 has been rightly invoked by both the Investigating Officer and believed that that the learned judge has rightly convicted the accused who have committed an offence of murder with the aid of Section 34 IPC. The submissions and the judgments will not take out the case of Chhangur and his defence has rightly been disbelieved by the trial Court and we concur with the same. For the reasons given by the trial Court, we are not inclined to deal further into the fact that the chain of events shows that Chhangur also had the common intention of causing death of the deceased by inflicting the injuries which were found on her body. For the reasons given by the trial Court, we are not inclined to deal further into the fact that the chain of events shows that Chhangur also had the common intention of causing death of the deceased by inflicting the injuries which were found on her body. We are not elaborately discussing on the issue whether she had died due to burn injuries or not as it is proved by the doctor that she was set ablaze before she died or after she died. The fact that it was a homicidal death is proved by the post-mortem as it emerged as discussed herein above. Hence, we concur with the learned judge that all the accused who have died and Chhangur shared a common intention and in furtherance of the common intention, the deceased was done to death and it was shown to the police as if she had died due to an accidental death. It is an admitted fact that she died in the evening, but the parents rather the father of the deceased was not even informed by the accused even before or even after they had given the F.I.R. of accidental death to the police authorities on 11.8.1984 in the early part of morning. All these facts have been minutely considered by us and we hold that the alibi sought to have not been proved by Chhangur as held by learned trial judge and he shared the common intention as defined in Section 34 IPC. The facts unequivocally prove that in the circumstantial evidence, no chain is broken and hence, we concur with the learned Judge who has hold that all the appellants who died and Chhangur had the common intention and has been rightly convicted with the aid of Section 34 IPC. 36. The only question for consideration that now remains in this case is, who amongst the accused were responsible for committing the murder of Smt. Savitri Devi. It has been vehemently argued by the learned counsel for the accused that in the absence of any evidence to establish the complicity of any particular accused in the offence, none of the accused can be convicted. But the act of strangulating her to death and of her burning subsequently in order to conceal the offence of murder, could not be the act of any single person. But the act of strangulating her to death and of her burning subsequently in order to conceal the offence of murder, could not be the act of any single person. In her letters Smt. Savitri Devi had repeatedly alleged that all the members of the family, young or old were treating her with cruelty, beating her, terrorising her, abusing her to their demands for scooter and gold chain. All the members of the family of her husband including her husband were, therefore, acting in concert with the common intention of obtaining scooter and gold chain from her father and on his failure to meet their demands to commit the murder of the deceased. Phool Chand the father-in-law of the deceased has admitted that he had lodged the report (Ext. Ka 1) at the Police Station which transpires to be false. Accused Chhangur was husband of the deceased. He has taken the plea of alibi, which is disbelieved by the learned trial judge. According to him he had gone to the village of Sarju (DW-1) in village Sauna Mohammadpur for giving him cash sent by his son through accused Bhagwan from the colliery where both of them are employed. But the evidence of Sarjoo (DW-1) in respect of the particular date on which accused Chhangur had gone to him for giving the cash sent by his son is quite unconvincing, unreliable and far from satisfactory. The evidence of alibi on the face of it appears to be a more concoction which does not deserve even a moment’s consideration. The presence of accused Chhangur at the time of declaration of Smt. Savitri Devi’s death is confirmed by the prosecution witnesses, namely, Kedar Nath (PW-2) and Sadaphal (PW-4). As regards accused Bhagwan it has been alleged that he resides separately in a separate house. But Kedar Nath (PW-2) while admitting the fact that accused Bhagwan has constructed a separate house, has stated that he was still residing in the same house with the other accused. His presence at the time of the occurrence and on declaration of death of Smt. Savitri Devi on account of burning is also confirmed by Kedar Nath (PW-2) and Sadaphal (PW-4). 37. Going through the evidences of witnesses the circumstantial evidence corroborate the testimony of PW-2 and PW-4. His presence at the time of the occurrence and on declaration of death of Smt. Savitri Devi on account of burning is also confirmed by Kedar Nath (PW-2) and Sadaphal (PW-4). 37. Going through the evidences of witnesses the circumstantial evidence corroborate the testimony of PW-2 and PW-4. Even if their evidence for argument sake is discarded the circumstances establish and lead to a conclusion that it was a murder motivated by greed of dowry. 38. There is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. Sentence is maintained. The accused Chhangur is granted eight weeks time to surrender before the concerned authorities failing which the concerned authorities shall take appropriate action to see that the accused serves out his term. It goes without saying that the period of sentence spent as trial under prisoner before he was enlarged on bail shall be considered for counting the sentence. 39. In the result, this appeal is dismissed. The impugned judgment and order dated 26.10.1985 of conviction and sentence passed by the learned Sessions Judge, Ghaziapur in Session Trial No. 230 of 1984 is confirmed.