Pradeep Kumar Srivastava, J.

1. We have already heard Mr. A.K. Kashyap, learned senior counsel for the appellants and Mr. Tarun Kumar and Mr. V.S. Sahay, learned A.P.P.s appearing for the State.

2. Instant Criminal Appeal (DB) No.1286 2004 is directed against the judgment of conviction and order of sentence dated 09.07.2004 passed by learned Sessions Judge, Latehar in S.T. No.25 of 2003, whereby and whereunder the appellants have been held guilty for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The other co-accused Mahboob Ansari has been acquitted.

3. Criminal Appeal (DB) No.507 of 2006 is directed against the judgment of conviction dated 24.03.2006 and order of sentence dated 27.03.2006 passed by learned Additional Sessions Judge, Fast Track Court Latehar in Sessions Case No.96 of 2005, whereby and whereunder the appellants have been held guilty for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life along with fine of Rs.5000/- each with default stipulation.

FACTUAL MATRIX

4. Factual matrix giving rise to these appeals is that informant Md. Hadish Ansari got married his daughter Shairun Bibi with Md. Mazid Mian about 7-8 years back. It is alleged that out of their wedlock, two daughters were begotten due to that reason Shairun Bibi was abused and assaulted by her husband as she could not delivered a male child and her husband was insisting upon her that he will solemnize second marriage. It is alleged that in or about in the month of February 2002, the informant’s daughter was driven out from her matrimonial home by her husband and in-laws and left at the house of her parents. It is further alleged that few days ago, Amir Ansari (father-in-law) of Shairun Bibi got vidai and brought to her matrimonial home to attend the marriage ceremony of sister-in-law of Shairun Bibi scheduled to be held on 11.05.2002. It is alleged that the informant also went to attend the said marriage and return back on 12.05.2002. It is further alleged that on 15.05.2002, informant’s son-in-law along with one Soyeeb Mian came at his house and informed that Shairun Bibi had gone anywhere on previous day. Since, the informant’s daughter had not reached his house then he started searching his daughter and was proceeding to her sasural but in the way at Chaukia (a place nearby to the matrimonial home of Shairun Bibi), the informant saw that his daughter was lying under a tree tied with clothe around her neck in sitting condition. It was suspected by the informant that his son-in-law with association of any other person, has killed his daughter on 14.05.2002 and thereafter, informed to him that informant’s daughter had gone to anywhere.

                  On the basis of above information, Manika P.S. Case No.20 of 2002 was registered on 15.05.2002 for the offence under Section 302/34 of the I.P.C. against accused Mazid Ansari and other unknown accused persons.

5. In the course of investigation, the Investigating Officer found complicity of accused Mahboob Alam, Amir Mian and other family members on the basis of confessional statement of Mahboob Alam @ Jumma.

6. After investigation, first Charge-sheet No.35 of 2002 was submitted on 13.08.2002 against the present appellants along with one Mahboob Ansari continuing investigation against accused Shamim Mian, Rashida Bibi (sister-in-law) and Sakuran Bibi (mother-in-law) of the deceased.

7. Later on, accused Shamim Mian, Rashida Bibi and Sakuran Bibi were charge-sheeted vide Charge-sheet No. 17 of 2005 dated 30.05.2005 above three accused persons were also charge-sheeted for the offence under Section 302/34 of the I.P.C. and have faced separate trial vide Sessions Case No. 96 of 2005, which was also decided vide judgment of conviction dated 24.03.2006 and order of sentence dated 27.03.2006, whereby and whereunder the above three appellants have also been held guilty and sentenced for the charge under Section 302/34 of the I.P.C. and directed to undergo imprisonment for life along with fine of Rs.5000/- each with default stipulation.

8. Since, both the above captioned appeals arising out of the same F.I.R. and same occurrence, although, decided separately are taken together for hearing.

9. Learned counsel for the appellants, Amir Mian and Md. Mazid in Cr. Appeal (DB) No.1286 of 2004, assailing the impugned judgment has contended that the appellant No.1 has been implicated in this case simply on suspicion, assumptions and presumptions because he brought the deceased from her paternal home to attend the marriage ceremony of her daughter scheduled to be held on 11.05.2002. There is no iota of evidence against appellant No.1 that in any manner, he was instrumental in abusing or assaulting the deceased for birth of two female children. There is also no allegation that appellant No.1 was ever instrumental to solemnize marriage of his son Md. Mazid (appellant No.2). No role or specific overt act of any kind has been attributed against the appellant No.1 nor it is alleged by the prosecution witnesses including the informant that there was any previous threatening given to the deceased by the appellant No.1 for any reason whatsoever. Therefore, the conviction and sentence of appellant No.1 is absolutely based beyond the evidence available on record.

                  So far as appellant No.2 Md. Mazid Mian is concerned, he has simply informed to his father-in-law (informant) that his wife has proceeded to her parental home on one day ago. The deceased was died in the way under unnatural circumstances for which no material has been brought on record to establish that the appellant No.2 was responsible to cause murder of his own wife. It is not the case of prosecution that the deceased died an unnatural death in her matrimonial home while in her custody of her husband and in-laws rather she was found dead at a considerable distance from the house of appellants. Therefore, the principle of Section 106 of the Evidence Act also cannot be invoked in this case against the appellants. The informant in his fardbeyan has specifically raised doubt about commission of offence of murder of his daughter by the appellant No.2 and his associates. The suspicion raised by informant never culminated into legal proof beyond all reasonable doubt. Therefore, conviction and sentence of appellants suffers from serious error of law and non-consideration of evidence available on record, which is liable to be set aside and this appeal may be allowed.

10. In connection with Cr. Appeal (DB) No.507 of 2006, learned counsel for the appellants has submitted that the appellants are mother-in-law, sister-in-law and brother-in-law of the deceased. Admittedly, there is no whisper in the F.I.R. about their involvement in the occurrence. No previous conduct of these appellants with the deceased has been brought on record showing any inimical terms or existing disputes of any kind with the deceased furnishing a motive to commit murder.

                  The learned Trial Court has miserably failed to properly appreciate the evidence available on record and dragged these appellants in commission of the offence of murder of the deceased simply because they are relatives of the husband of the deceased. Therefore, conviction and sentence of these appellants is also based upon conjecture and surmises and beyond the weight of evidence available on record which is liable to be set aside and appellants deserve acquittal.

11. On the other hand, learned A.P.P.s appearing for the State controverting the aforesaid contentions raised on behalf of the appellants has submitted that under a nefarious plan, the deceased was tortured with physical and mental trauma/harassment due to birth of two female children. The husband and other family members started taunting her and advising her husband to solemnize second marriage for male issue. She was assaulted and driven away from her matrimonial home. It was the father-in-law Amir Mian of the deceased who brought her just few days prior to occurrence on the occasion of marriage of his daughter scheduled to be held on 11.05.2002. The informant also attended the marriage but returned on 12.05.2002 to his own home. Thereafter, under a concerted manner, the deceased was brought near a tree at some distance of her matrimonial home and tied with a clothe on her neck in sitting condition and left there due to which she died. If the deceased had proceeded previous day to her matrimonial home alone then it might have been communicated on the same day to the father of the deceased. It is not a case of commission of suicide and the manner in which the deceased was found dead, does not indicate that she has committed suicide by hanging. The Post-mortem Report of the deceased also confirms the commission of homicidal death. The accused persons have also confessed their guilt stating the manner how they have assaulted the deceased and done to death which also finds corroboration from the Post-mortem Report, wherein it is opined that cause of death was asphyxia due to throttling. The learned Trial Court has taken into consideration the entire circumstances under which the deceased has been died and the specific role of the appellants in commission of the murder just adjacent to their village. There is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellants and no merits in this appeal which is fit to be dismissed.

12. We have gone through the impugned judgment in the light of contentions raised on behalf of both side and also perused the record.

13. The only point for determination in this appeal is that as to whether impugned judgment of conviction and sentence of appellants suffers from any error of law calling for any interference by way of this appeal or not ?

14. Before imparting our verdict on the above point, we have to appraise ourselves with the evidence adduced in this case before the Trial Court.

15. It appears that in Cr. Appeal (DB) No.1286 of 2004 which is arisen out of S.T. Case No.25 of 2003, altogether 9 witnesses were examined by the prosecution including the Medical Officer and Investigating Officer.

                  Apart from oral testimony, the prosecution has also adduced following documentary evidence :-

                  Exhibit 1 : Post-Mortem Report Exhibit 2 : Fardbeyan of the Informant Exhibit 3 : Formal F.I.R.

16. On the other hand, the case of defence is total denial from charge and false implication.

                  The specific plea of defence is that the deceased was not having a good mental status and she had committed suicide.

17. Out of 9 witnesses examined in Cr. Appeal (DB) No.1286 of 2004 by the prosecution, P.W.1 Md. Uddin Ansari and P.W.2 Jakir Mian, who are witnesses of inquest report, have been turned hostile.

                  P.W.3 Md. Alim Ansari is the brother of deceased.

                  According to his evidence, his sister Shairun Bibi (deceased) was married with Mazid Mian about 7-8 years ago and was blessed with two children. One child has been died. It is further alleged that his sister was frequently beaten by her husband and driven away from matrimonial home about three months prior to occurrence. Thereafter, in the first week of May, his sister went to her matrimonial home along with her father-in-law Amir Mian. In the meantime, Mazid Mian came to the house of this witness and asked Rs.10,000/- in connection with marriage of his own sister which could not be paid due to paucity of fund thereupon Mazid Mian got enraged and went away to his home. He has further deposed that after commission of murder of his sister, Mazid Mian informed that Shairun Bibi has proceeded to her paternal home one day ago but on search, it was found that the accused persons have killed his sister whose dead body was lying under the tree at some distance of her matrimonial home.

                  In his cross-examination, this witness admits that in connection with incident of assault with the deceased by her husband, no information was given to the police but matter was placed before Anjuman committee. He has denied the suggestion of defence that due to depression, his sister went away from her matrimonial home alone and committed suicide and to take revenge with her husband Mazid Mian, this false case was lodged.

                  P.W.4 Junab Ansari is also brother of the deceased. He has also corroborated the contents of F.I.R., further submitted that his sister (deceased) was driven away from her matrimonial home by her husband and on the occasion of marriage of his sister, Mazid Mian along with his brother-in-law Shamim Mian came to his home and asked money in connection with marriage of his own sister and also asked for vidai of Shairun Bibi. Initially, this witness and family members were not convinced but after assuring that the accused Mazid Mian will not ask further money and keep his wife very well then, she, Shairun bibi, was allowed to go her in-laws home but again after two days of marriage of his sister Mazid Mian and Shamim Mian came to his house. Mazid Mian again came and asked money for marriage of his sister which was not given then he got enraged and went away to his own home and after two days of his marriage of his sister Mazid Mian and Shamim Mian came to the house of this witness and asked as to whether his sister has arrived at his home then this witness along with his parents started searching his sister and got information that his sister has been tied with dupatta under a tree at some distance of the house of accused person. He also came to know that all the accused persons have killed his sister by throttling.

                  In his cross-examination, this witness admits that the incident of assault met with the deceased at the hands of her husband, was complained before Anjuman committee. He also admits that he had not gone to attend the marriage of sister of Mazid Mian. His sister never used to come at her paternal home alone rather always her husband used to come along with her.

                  P.W.5 Shabir Ansari is also brother of the deceased who has also deposed in the same line as P.W.3 and P.W.4. According to him also, the accused was asking Rs.10,000/- for expenses of marriage of his sister due to non-fulfillment of which, he got enraged and went away to his own house. Later on, accused Mazid Mian gave false information that the sister of this witness has returned to her parental home, although, she was killed and her dead body was tied with tree after strangulation. There is nothing in her cross-examination to discredit his aforesaid testimony.

                  P.W.7 Jhalo Bibi is mother of the deceased. She has also deposed that her daughter was married with Md. Mazid about 7-8 years ago. She was also blessed with two children. She has also deposed that on the occasion of marriage ceremony of sister of Md. Mazid, he was asking Rs.10,000/- due to non-fulfillment of which, he was very much annoyed. She has also deposed that her daughter was being frequently assaulted by her husband who was adamant to solemnize second marriage. Her husband has also attended a marriage ceremony on 11.05.2002 and returned on 12.05.2002. After two days, Mazid and Shamim came to her house and told that her daughter has been fled away leaving the children at home. Thereafter, on search, the dead body of her daughter was found tied with dupatta around a neck under a tree. The above testimony has not been controverted in her cross- examination.

                  P.W.8 Md. Hadish is the informant-cum-father of the deceased. He has also corroborated his fardbeyan and deposed that after his daughter was married with Md. Mazid about 8 years ago, Md. Mazid always used to ask Rs.10,000/- from him which could not be given due to paucity of fund then Mazid Mian his father Amir Mian, brother-in-law Jumma Mian, Shamim and other family members started threatening to his daughter Shairun Bibi and also driven away from her matrimonial home. On the occasion of marriage ceremony of sister-in-law of the deceased, her father-in-law came to his house for vidaigiri upon which this witness complained that you people always used to ill-treat and torture his daughter and drive away from matrimonial home, hence, she will not allow to go. Thereafter, accused persons with folded hand replied that in future they will not repeat such torture and brought his daughter Shairun Bibi to her matrimonial home just few days of the occurrence. He has further deposed that just after 2-3 days of the marriage of sister-in-law of the deceased, she was again brought to the place of occurrence and killed by the accused persons and therefore, he was informed by her husband Mazid and Shamim (brother-in-law) that Shairun Bibi had proceeded to her parental home alone. On search, it was found that the deceased was killed and her dead body was tied with a tree rapping her dupatta around the neck. Police also came at the place of occurrence. Dead body was brought to police station and his fardbeyan was recorded. Thereafter, dead body was sent for Post-Mortem and after conducting Post-Mortem, dead body was handed over to this witness for cremation.

                  This witness has been cross-examined at length but so far his core testimony as stated above has not been rebutted and controverted in any manner.

                  P.W.6 Dr. Ravindra Narayan had conducted autopsy on 16.05.2002 on the dead body of the deceased Shairun Bibi @ Samina and found following :-

                  (i) Ante-mortem injuries – a mark of ligature around the middle of the neck. Bruise around and over the neck present.

                  (ii) A lacerated wound 3"x 1" x ½" extending from the upper boarder of the vaginal orifice directing upwards.

                  (iii) On dissection blood under the skin in the neck region was present. Hyoid bone was fractured. Both lungs were congested.

                  Stomach was full of food. Large intestine gas and fecal matter. Uterus was non gravid. Rigor Mortis was present in both upper and lower limbs. Body was decomposed. Blebs were present all over the body. Bleeding was present in both nostrils. Tongue was protruded and bleeding from the mouth.

                  (iv) Cause of death was asphyxia due to throttling. Time since death 48 to 76 hours.

                  The Post-Mortem Report is proved to be Ext.1.

                  In his cross-examination, this witness states that decomposition of body starts after 24 hours in normal condition. The above injuries cannot be caused by hanging or falling and dragging.

                  P.W.9 S.I. Ashok Kumar is the Investigating Officer of this case. According to his evidence on 15.05.2002, he was posted as S.I. at Manika Police Station. On that day, he recorded fardbeyan of one Hadish Ansari and the endorsement of fardbeyan is in the handwriting of then Officer-In-Charge Sanoj Kumar. He has proved the entire fardbeyan as Ext.2 and Formal F.I.R. as Ext.3. He got charge of investigation of this case. This witness proceeded for inspection of place of occurrence which was identified by the informant. The place of occurrence of this case is situated about 9 k.m. away from the village Chaukia, the village of accused persons where a Chilbil tree is standing and the dead body of Shairun Bibi was found on this tree. It appeared to this witness that the deceased was first murdered, thereafter, her dead body was tied with Chilbil tree. Both legs were touching the earth and deceased was found in a sitting condition. He has recorded restatement of the informant. Inquest report was also prepared by the Officer-In-Charge, which was sent to hospital along with dead body challan for Post-Mortem. He also recorded the statement of other witnesses arrested, the accused Amir Mian and Mahboob Alam @ Jumma, who has given his confessional statement. After completion of investigation, he found sufficient evidence against accused persons Amir Mian, Mazid Mian and Mahboob Mian, hence, charge-sheet was submitted against them continuing investigation against other three accused persons.

                  In his cross-examination, this witness admits that the dead body was found in a dense forest area. He has denied the suggestion of defence that since the dead body was hanging on tree, therefore, no wild animals could attempt to harm the dead body. He has denied the suggestion of defence that the investigation is defective.

18. From discussion of oral testimony of witnesses, there remains no doubt that there is no eye witness of the occurrence rather prosecution case hinges only upon circumstantial evidence. It further appears that the single circumstance against appellant No.1 as per F.I.R. is that in spite of tense relationship between deceased and her husband (appellant No.2) and the deceased was driven to her paternal home by her husband about three months ago, the appellant No.1 came to the house of informant asking vidaigiri of his daughter-in-law (deceased) to attend the marriage ceremony of her sister-in-law which was scheduled to be held on 11.05.2002. Apart from above circumstances, nothing incriminating material is available against the appellant No.1. It appears that simply because the appellant No.1 brought the deceased from her parental home to her matrimonial home to attend the marriage ceremony of her sister-in-law, he has been attracted in this case and also convicted with the aid of Section 34 of the I.P.C. The learned Trial Court has not discussed any of the circumstances which may indicate that the appellant No.1 has also acted in concerted manner to finish the life of the deceased either as perpetrator, abettor or executor.

19. So far as role of appellant No.2 is concerned, there are clinching circumstances proved by the prosecution showing his motive to eliminate his wife and also commission of murder by him alone. The circumstances may be enumerated as under which has been got explained by under Section 313 of the Cr.P.C. wherein he has not offered any reasonable explanation. The circumstances are as under :-

                  (i) The marriage of appellant No.2 with the Shairun Bibi (deceased) was solemnized about 8 years prior to occurrence and both were blessed with two female child, one of whom has been died.

                  (ii) The appellant No.2 was demanding Rs.10,000/- for solemnizing marriage of his own sister and also scolding, torturing and harassing the deceased for birth of female child.

                  (iii) The appellant No.2 was also threatening to perform second marriage so, hence, he drove away his wife to paternal home.

                  (iv) After arrival of his wife at matrimonial home on the occasion of his sister’s wedding again went to his sasural prior to the date of marriage and asked Rs.10,000/- in connection with marriage of his own sister which was not given due to paucity of fund then he seriously became annoyed and enraged and returned to his home under impression of anger.

                  (v) The appellant No.2 informed to his father-in-law/informant that his wife has proceeded one day ago for her parental home, i.e., on 14.05.2002. On search, the dead body of the deceased was found in a forest area just 9 k.m. away from the house of appellant No.2 tied in a tree around her neck.

                  (vi) The Post-Mortem Report of the deceased shows ante- mortem injuries caused by hard blunt object as well as fracture of Hyoid bone due to throttling. Therefore, the death is opined to be homicidal and not suicidal or accidental.

                  (vii) The appellant No.2 first time gave information on 15.05.2002 about missing of his wife. On the other hand, Post-Mortem Report of the deceased conducted on 16.05.2002 shows that death was within 48 to 72 hours from conducting Post-Mortem which also indicates that after commission of murder of the deceased, the information was furnished to his father by the appellant No2.

                  (viii) The dead body of deceased was also searched on the basis of confessional statement of co-accused persons.

                  Above circumstances unerringly points towards the guilt of the appellant No.2 for causing murder of his wife. The appellant No.2 has not offered any explanation or any kind of his own defence raising any doubt in the commission of incident by any other person or for any other person.

20. We have also minutely examined the judgment of learned Trial Court wherein all the circumstances have been discussed in threadbare manner and properly analyzed and appreciated. But so far accusation of the appellant No.1 is concerned, there are contradictory evidence in the F.I.R., it is stated that appellant No.1 went to the house of informant to bring the deceased to attend the marriage of his daughter but during trial, the informant and his both sons P.W.3 and P.W.4 and wife P.W.7 have categorically stated that the appellant No.2 came to their house and took away his wife on assurance that he will not harass or torture her and keep properly and also stated that marriage of his sister has been settled and scheduled to be held on 11.05.2002. No such averment has been made against appellant No.1.

21. In view of above discussion and reasons, we find sufficient ground for interference in the conviction and sentence of appellant No.1 but so far conviction and sentence of appellant No.2 is concerned, there is no illegality or infirmity in the impugned judgment and order passed by the Trial Court. Accordingly, we set aside the conviction and sentence of appellant No.1 and upheld the conviction and sentence of appellant No.2.

22. In view of above Cr. Appeal (DB) No.1286 of 2004 is partly allowed in respect of appellant No.1 and the appeal on behalf of appellant No.2 is dismissed. The appellant No.1 is on bail, he is discharged from the liability of bail bond and sureties are also discharged. The appellant No.2 is also on bail, his bail bond is hereby cancelled and the appellant No.2 is directed to surrender before the concerned Trial Court within a period of two months from the date of this judgment to receive the sentence awarded to him, failing which, the learned Trial Court shall take all coercive measures for arrest and detention of appellant No.2 to sustain the remaining sentence awarded to him.

23. So far as conviction and sentence of appellants in Cr. Appeal (DB) No.507 of 2006 is concerned, it appears that almost the same witnesses have been examined by prosecution who have deposed in the similar manner as their evidences were recorded in S.T. Case No.25 of 2003 (corresponding to Cr. Appeal (DB) No.1286 of 2004).

24. In Cr. Appeal (DB) No.507 of 2006, following witnesses have been examined : P.W.1 Alim Ansari, P.W.2 Junab Ansari and P.W.4 Sabir Ansari are brothers of the deceased. P.W.3 Jhalo Devi is mother of the deceased and wife of the informant. P.W.5 Md. Hadish Ansari is the informant. P.W.6 Nityanand Mishra is the part Investigating Officer, who has proved signature of S.I. Sanoj Kumar on formal F.I.R. as Ext.1. Endorsement for registration of case as Ext.2. Inquest report of deceased as Ext.3. Dead body “Challan” in the handwriting of S.I. Sanoj Kumar as Ext.4. P.W.7 Jakir Mian and P.W.8 Md. Uddin Ansari are witnesses of inquest report. P.W.9 Ravindra Narayan had conducted autopsy on the dead body of the deceased. P.W.10 Md. Atim Ansari is an Advocate Clerk, who has stated that confession of accused Mahboob Alam @ Jumma is recorded in the handwriting of S.I. Ashok Kumar which is marked as Ext.8. P.W.11 Ashok Kumar is the Investigating Officer of this case.

25. On the other hand, the accused persons in their statement under Section 313 of the Cr.P.C. have pleaded innocence and false implication. However, no oral or documentary evidence have been adduced by defence.

26. We have gone through the evidence of witnesses of fact who were earlier examined in S.T. Case No.25 of 2003 and there is no material improvement as regards any specific overt act attributed to the present appellants of Sessions Case No.96 of 2005 (corresponding to Cr. Appeal (DB) No.507 of 2006). There is no whisper that these appellants ever demanded any money or subjected the deceased to cruelty. However, this is not the case of the prosecution registered for the offence under Section 498A of the I.P.C. rather under Section 302/34 of the I.P.C. So far as offence of murder is concerned, there is no iota of evidence showing that present appellants have been seen at the place of occurrence nor there is any evidence that they have acted in concerted manner in furtherance of common intention to kill the deceased. No incriminating materials are available against these appellants in their statement under Section 313 of the Cr.P.C. The Court has put general question that they have caused murder of the deceased in furtherance of their common intention without indicating any specific evidence of any witnesses.

27. After meticulous examination of oral and documentary evidence led by prosecution, we are constrained to hold that the conviction and sentence of the appellants (in Cr. Appeal (DB) No.507 of 2006) is totally based on conjecture and surmises without proper appreciation of evidence against them and without any material, simply because they stand relatives of the husband of deceased, they have been roped in this case and the learned Trial Court in a routine manner held them guilty, convicted and sentenced. Therefore, conviction and sentence of present appellants namely Shamim Mian, Rashida Bibi and Sakuran Bibi (Cr. Appeal (DB) No.507 of 2006) is hereby set aside and Cr. Appeal (DB) No.507 of 2006 is allowed.

28. The appellants namely Shamim Mian, Rashida Bibi and Sakuran Bibi are on bail, they are discharged from their respective liability of bail bonds and sureties are also discharged.

29. Pending I.A.s in both these appeals, if any, stand disposed of.

30. Let a copy of this judgment along with Trial Court records of both trial cases be sent to concerned Trial Court for information and needful.