1. The appellant, Uday Kumar Mehta, was tried along with two others, Butu Mahato and Turani Devi, who are his parents. The appellant and other two accused were charged for the offence under Section 302, 201, 120-B read with Section 34 of the Indian Penal Code as well as under Section 3/4 of Dowry Prohibition Act. The trial Judge, while acquitting Butu Mahato and Turani Devi, found the appellant alone guilty for the offence under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment, while acquitted him of the other charges. The present appeal is against the said conviction and sentence.
2. The facts are the appellant is the husband of Madhuri Devi and married Madhuri Devi in the year 1987. It is the case of the prosecution that along with the appellant, the deceased Madhuri Devi and his parents, Butu Mahato and Turani Devi, were also living and Madhuri Devi, the deceased, after leaving her matrimonial house, filed an application under Section 125 of the Code of Criminal Procedure before the Civil Court, Garhwa, seeking maintenance from the appellant and that later, a compromise petition was filed before the Civil Court and that thereafter, the deceased was living with her husband and in-laws in her matrimonial house. The date of occurrence was after 10-11 months of the said compromise, which, according to the prosecution, took place on 28.4.1994.
3. On 28.4.1994, PW 5, Shree Mahto, was in his house and was informed by PW 4, Sanesh Mehata, that Madhuri Devi was burnt to death in her house. On getting the said information Shree Mahto along with his son. PW 2, Lalman Mahto, went to the residence of the appellant and found the deceased lying dead with burn injuries. He also found several villagers assembled there. Thereafter, PW 5, Shree Mahto, questioned them and the appellant as well as other two accused, but they did not give proper reply. A complaint, Ext. 1/1, was given to the police station by PW 5, father of the deceased, Shree Mahato, whose signature was marked as Ext. 1, and it was registered as Bhawnathpur P.S, Case No. 39/1994 for the offence under Section 302, 201, 120-B read with Section 34 of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act, Investigation was taken up by the Investigating Officer and during the course of investigation, inquest was conducted in presence of Sitaram Mehta. At the time of inquest, PW 8 and others were examined and their statements were recorded.
4. The dead body was sent to the hospital with a request to conduct autopsy. PW 11, Medical Officer, conducted autopsy on the dead body of Madhuri Devi and he found burn injuries on the whole body of the deceased, except lower parts of leg and feet. He issued post-mortem certificate, Ext. 4, but without expressing any opinion as to the cause of the death.
5. After completion of the investigation, the final report was filed against the appellant and other two accused.
6. When the appellant and other two accused were questioned on incriminating circumstances under Section 313 of the Code of Criminal Procedure, they denied the incriminating circumstances. They came with a definite case on the question of murder that on the date of occurrence, they were in their khalihan for thrashing crops, which was at a distance of 4 kms. from the scene of occurrence and that the younger brother of the appellant, on return from school at 4.00 p.m., found the door of the house bolted from inside and that according to the appellant, when it was not opened, several villagers had collected there and a small boy, after entering into the house through window, opened the door from inside, then they found the deceased lying dead and that when the appellant and two other accused returned, the information was, sent to her parents. In short, the case of the defence is that they were not in the house at the time of occurrence and that she committed suicide by setting herself on fire.
7. The appellant and two others, to buttress their case, examined two wit-nesses-DW 1 and DW 2, DW 1, Kialash Vishakarma, in his evidence, stated that on hearing hue and cry, emanating from the house of the accused, he went to the house of the accused and found the door closed from inside and a child aged 3- 4 years (son of PW 13) was asked to enter into the house through window, who opened the door and thereafter, they found Madhuri Devi lying dead with burn injuries. DW 2, Raj Kumar Yadav, stated in his evidence to the effect that on the date of occurrence between 2.00 and 4.00 p.m. the appellant and other two accused were engaged in thrashing arhar crop and later, they returned to their house at about 4.30 p.m.
8. Learned counsel appearing for the appellant submits that when the appellant had taken a defence that they were not in the house and were engaged in thrashing arhar crop, the trial Court was not justified in making out a third case by holding that the appellant alone was guilty, while it acquitted the other two accused on the ground that they could not have been present in the house at the time of occurrence.
9. We have heard Mr. S.K. Srivastave, learned counsel appearing for the State on the above contention.
10. There can be no doubt that Madhuri Devi died on account of burn injuries. The doctor, who conducted post-mortem, gave evidence and stated that he found burn injuries on the dead body of Madhuri Devi but he could not give any opinion as to the cause of death of Madhuri Devi. We, therefore, hold that Madhuri Devi died on account of burn injuries.
11. The question to be decided before the trial Court was that whether Madhuri Devi died on account of suicide or on account of homicide.
12. The prosecution before the trial Court, in order to establish that the appellant and two other accused committed murder of Madhuri Devi by pouring Kerosene and setting her on fire, relied on circumstantial evidence. The only circumstantial evidence on which the prosecution tried to rely Is that the deceased. Madhuri Devi, and the appellant were not on cordial terms and an application under Section 125 of the Code of Criminal Procedure, seeking maintenance from the appellant, was filed by the deceased and later, a compromise petition was filed and that thereafter the deceased was living with her husband and in-laws, namely, the two other accused. The occurrence, according to the prosecution, happened after about 10-11 months from the date of compromise. The prosecution did not produce any evidence to show that after compromise was entered into between the appellant and deceased, there was bickerings between the two and the case of the prosecution itself shows that the deceased was living in the house of the appellant for about 10-11 months after compromise and before she met her end. Therefore, we do not find satisfactory evidence to hold that the appellant had grievance or a motive against the deceased to cause her death.
13. The other circumstances relied by the prosecution is that since the deceased was in the house of the appellant, he must have been responsible for her death. It is needless to say that the prosecution cannot ' expect to presume a fact, unless the said fact is proved, beyond all reasonable doubt. The case of the prosecution is that the appellant and his parents poured kerosene and set the deceased on fire; therefore, they were liable, for her murder. On that allegation, it filed the final report. The appellant as well as other two accused took a plea before the trial Judge stating that they were not in the house on the date of occurrence and rather were at distance of 4 kms. in their khalihan and were engaged in thrashing arhar crop. Therefore, the Court is to find out as to which version is true and the Court cannot make out a third case, but the trial Court did exactly that while it acquitted the other two accused, it only found the appellant alone guilty by coming to the conclusion that the other two accused could not have been inside the house. In this background, when look at the evidence of PW 5, informant, who is the father of the deceased, it could be seen that he went to the village on getting the information about his daughter's death and found several villagers talking amongst themselves and he could know from them that the appellant and two other accused committed the murder of his daughter, Madhuri Devi. The evidence of PW 5 is not only hear-say in nature but also shows that the prosecution wanted to project a case that all the three accused were responsible for the death of Madhuri Devi. As stated earlier, when we look at the version of the prosecution in the backdrop of the evidence available on record especially in view of the evidence of PW 13, it could be seen that the defence version is more probable. It can safely be held that the appellant and the other accused could not have been in the house and even PW 5, father of the deceased, did not even whisper in his evidence that when he went to the house of his son-in-law, he found the appellant and the other two accused in the house, PW 13, though was treated hostile, in his cross-examination, admitted that the appellant and two other accused were not in the village and later came to the village on hearing the information. As we stated earlier, there is absolutely no evidence on the side of the prosecution to show that the appellant and two other accused were in the house on the date of occurrence and committed the murder of Madhuri Devi by pouring kerosene and setting her on lire. On the contrary, the prosecution wanted the Court to rely on presumption that the appellant and two other accused must have murdered Madhuri Devi by pouring kerosene and setting her on fire. The Court cannot presume, such fact, in the absence of any legal and acceptable evidence, more so when the trial Court acquitted the appellant and two other accused of charges under Section 3/4 of the Dowry Prohibition Act and also acquitted two after accused of the charge of murder.
14. In view of the above discussion, we find it difficult to uphold the conviction of the appellant. We, therefore, allow the appeal and set aside the conviction and sentence imposed upon the appellant. The appellant is directed to be released from the jail custody forthwith, if not wanted in any other case(s).
