JUDGMENT Shyam Sunder Byas, J.
1. Since three appeals-one represented and second through jail are directed against one and the same judgment of the learned Additional Sessions Judge Udaipur dated July 15, 1976, they were heard together and are disposed of by a single judgment. By the judgment aforesaid, the three appellants Nandram, Smt. Hoori and Smt. Aiji were convicted under Sections 120B and 302/34, I.P.C. and each was sentenced to imprisonment for life with a fine of Rs. 100/- in default of the payment of fine to further undergo three months, rigorous imprisonment.
2. Briefly recalled, the facts and circumstances leading to the prosecution and conviction of the appellants are that the appellants Nandram and Smt. Hoori are husband and wife and the appellant Smt. Aiji is their daughter. They all resided in village Madri P.S. Sayra district Udaipur. Smt. Aiji was married to Heeralal a few years before August, 1974. As Smt. Aiji is the only issue of her parents, the parents invited Heeralal to live permanently with them in their village. Heeralal was a resident of village Bater, which is at a distance of 4/5 kilometers from Madri. Heeralal was, thus, living with the appellants us "Ghar Jawain" (Stationary son-in-law). The relations between him and the appellants, however, did not remain happy and cordial. It is alleged that Heeralal set fire to the house of the appellants, for which he was prosecuted, convicted and sentenced to three years imprisonment for an offence under Section 436 I.P.C. While he was serving the sentence in jail Smt. Aiji submitted an application in the Court of the District Judge, Udaipur under Section 10 of the Hindu Marriage Act, 1955 to seek judicial separation from her husband Heeralal. This application was allowed by the District Judge on August 5, 1972, by his judgment Ex.P 5. This further embittered the relations between Heeralal and the appellants. When Heera Lal was released after serving the sentence of imprisonment, he went to his village Bater and started living with his parents and brothers. Some persons intervened and the appellants approached Heeralal with a request to live with them in village Madri. They assured him that he would get all the assets and properties of the appellants. Smt. Aiji executed document Ex.P 4 on June 23, 1974 in favour of her husband Heeralal on a stamp paper. Heeralal yielded and came to live again with the parents of his wife in their village Madri.
3. In the morning of August 9, 1974, there was weeping and wailing at the house of the appellants. The inhabitants of the village assembled at their house and they were told by the appellant Nandram that his son-in-law Heeralal had suddenly passed away. The villagers advised him to inform Heeralal's parents and other relatives Accordingly, some persons were, sent to Bater and other villages to inform the relatives of Heeralal about his death. PW 1 Hukmichand, who is the real brother of Heeralal, PW 4 Tegchand and PW 5 Bhanwarlal, who are the cousins of Heeralal, on being informed, came to village Madri. When they reached village Madri, the dead body of Heeralal was being taken to the cremation ground. When the dead body was to be placed on the pyre, the cloth with which the dead body was covered, was taken off to find out if there were any valuables with the dead body. When the cloth was taken off, Hukmichand, Tegchand, Bhanwar Lal and other persons noticed injuries on the victim's dead body, Hukmichand (PW 1) became suspicious and asked the appellant Nandram not to cremate the body and to wait the arrival of police. Saying so, Hukmichand went to Police Station, Sayra and verbally lodged report Ex.P 1 at about 10.30 a.m. PW 10 H.C. Chandra Shekhar, who was also Station House Officer, decided to proceed under Section 174, Cr. P.C. and immediately reached the cremation ground in village Madri. The Station House Officer Chandra Prakash (PW 12), who was busy some where else on official duty, was informed and he also reached the place of cremation. He prepared the Panchnama and inquest report Ex.P 2 of the dead body. Since the death of Heeralal appeared be unnatural, a case under Section 302, I.P.C. was registered. The postmortem examination of the dead body was conducted at about 5 00 p.m on the same day by PW 7 Dr. Mustaq All the then Medical Officer Incharge, Primary Health Centre, Sayra The doctor noticed 14 injuries on the dead body, which included some bruises on the neck, fracture of right mandible was detected etc. Four injuries were caused by sharp weapon while the rest by some blunt object. The doctor was of the opinion that Heeralal died on account of asphyxia as a result of strangulation.The post-mortem examination report prepared by him is Ex P 9 The appellants were arrested an August 10, 1974. Hamer Lal, who is the cousin of the appellant Nandram, was also arrested on the same day. In consequence of the informations furnished by Hamerlal, Smt. Aiji and Nandram, many articles stained with blood were recovered from their possession. Reference in particular may be made to Dhoti (Article I) and shirt (Article 2) recovered at the instance of accused Nandram. The appellants and Hamerlal, when arrested, were found to have injuries on their person. Their injuries were examined on August 11,1974 by PW 16 Dr. S.S. Buxi the then Medical Jurist, General Hospital, Udaipur. The duration of their injuries was stated to be between 4/5 days prior to August 11, 1974. Their injury-reports are Ex P 31, Ex P 32 Ex. P 33 and Ex.P 34. The recovered articles were sent for chemical examination. Human blood was found on all of them The blood found on Dhoti (Article 1) and shirt (Article 2) was of 'O' group. On the completion of investigation the police presented a challan against the appellants and Hamerlal in the Court of the Additional Munsif cum Judicial Magistrate (2), Udaipur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 302/34 and 302/120B, I.P.C. against all of them, to which they pleaded not guilty and faced the trial. They claimed absolute innocence and stated that none of them was present in the house of the appellants in the night between August 8/9, 1974. Nandram was in the field where as his daughter and wife were in village Tarpal where they had taken the minor son of Smt. Aiji for medical treatment., In support of its case, the prosecution examined 18 witnesses and filed some documents. In defence, the Accused examined eight witnesses. On the conclusion of the trial, the learned Additional Sessions Judge found no incriminating material for convicting the accused Hamerlal. He was consequently acquitted. The charges against the appellants were held duly proved. They were, there fore, convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction, the three appellants have come up in appeals. During the pendency of appeals, the accused Smt. Aiji passed away. As such, the appeals filed by her stand abated.
4. We have heard the learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.
5. Learned Counsel for the appellants did not challenge the medical opinion of PW 7 Dr. Mustaq Ali relating to the cause of death of Heeralal. We have also gone through his statement and find no reasons to distrust his opinion. It thus, stands proved that Heeralal died on account of asphyxia as a result of strangulation, His death was, thus, not natural but homicidal.
6. Admittedly, there is no ocular witness to the incident and the prosecution case rests squarely on circumstantial evidence. The various sets of circumstantial evidence have been summarised by the Court below on page 26 (of the case file) as under:
(1) the deceased Heeralal was living as "GHAR JAWAIN" with the appellants in their house in village Mardi;
(2) he was murdered in the intervening night of August 8/9, 1974 in the house of the appellants;
(3) the death occurred in the mid-night and the three appellants were present there in the house;
(4) relations between the deceased and his wife Smt. Aiji were not sweet and cordial. The deceased was prosecuted and sentenced under Section 436 I.P.C. The wife had sought a decree of judicial separation against him. The wife and the husband had no trust on each other and it was why Ex P 4 was executed by the wife in favour of the deceased;
(5) the fact of the death of Heeralal was concealed and not disclosed to the villagers and his dead body was taken to the cremation ground secretly;
(6) the injuries found on the persons of the appellants were sustained by them when they made an attempt to kill Heeralal;
(7)"TAGARI", "KULH ARI" and shawl (belonging to the deceased were found in the house of the appellants and they were all stained with human blood; and (8) the appellants gave wrong explanation to meet the prosecution evidence.
7. It was argued that by the learned Counsel for the appellants that many of the circumstances enumerated above do not stand proved and even if they are taken into consideration, as proved they are insufficient to show the complicity of the appellants. These circumstances do not connect the appellants with the murder of Heera Lal. It was argued that the learned Sessions Judge has himself disbelieved the recoveries of Kulhari, Tagari and Shawl and yet took them into consideration while assessing the guilt. The conviction was, thus, wholly erroneous and unsustainable. We have bestowed our anxious consideration to these submissions and find that they are not without force.
8. It cannot be disputed nor was disputed before us that the deceased Heera Lal was living as "GHAR JAWATN" with the appellants in their house at Madri. It is also not in dispute that at one time the relations:between the deceased and his wife Smt. Aiji were not happy. He was prosecuted, convicted, and sentenced to imprisonment under Section 436, I.P.C. The wife had also sought the decree of judicial separation against her husband. But at the same time it will have to be kept in mind that after when the deceased was released on his completing the sentence of imprisonment, the appellants approached him and brought him back to live with them in their village Madri. Smt. Aiji, in order to assure the deceased, executed Ex. P 4 in his favour. Thus, the relations at one time were not cordial but later on there was an amicable settlement between the deceased and the appellants and he once again came to live with them. The circumstances, mentioned above, have, thus, no incriminating impact in judging the guilt of the appellants.
9. There, is no evidence on record to show that the appellants were in their house in the intervening night of August 8/9, 1974 when Heera Lal was strangulated or throttled to death. None of the prosecution witnesses stated that they had seen the appellants in their house in village Madri in that night. The presence of the, appellants in their house in that fateful night is of vital significance and should have been proved by the prosecution. Unfortunately the evidence on this essential link of the chain of circumstantial evidence is missing. It cannot be left to, imagination and conjectures that because the house belongs to the appellants, they must have been necessarily present there in that fateful night. This missing link in the chain of circumstantial evidence is sufficient to crumble down the prosecution case
10. The circumstances that the villagers were not informed of the death of Heera Lal and his dead body was taken secretly to the cremation ground, does not stand proved. PW 2 Kishan Lal and PW 3 Devi Lal, who are residents of village Madri clearly stated that they reached the house of the appellants on the hearing their weeping and wailing. They further stated that information of Heera Lal's death was sent to his parents and other relatives through special messengers. PW 4 Teg Chand and PW 5 Bhanwar Lal, who are the maternal cousins of the deceased Heera Lal, stated that they were informed of his death by the special messenger Lalu Ram, who was sent by the appellants. The evidence of PW 1 Hukmi Chand, who is the real brother of the deceased-victim, PW 2 Kishan Lal, PW 3 Devi Lal, PW 4 Teg Chand, PW 5 Bhanwar Lal and the others show that the dead body of Heera Lal taken on an "'Aarthi" to the cremation ground and many persons were present in that procession. Thus, it cannot be said that the dead body was taken secretly to the cremation ground. Many persons had collected at the cremation ground. The trial Court was in error in its finding that the dead body was taken secretly to the cremation ground. The evidence on record satisfactorily shows that there were wailing and weeping at the house of the appellants on account of the death of Heera Lal, his dead body was taken in a procession to the cremation ground and many persons were there in the procession and at the cremation ground.
11. It is true that injuries were found on the person of the appellants. But it is wrong to suggest that these injuries were sustained by them in the night between August 8/9, 1974. Their injuries were examined on August 11, 1974 by PW 6 Dr. S.C. Buxi the then Medical Jurist, General Hospital, Udaipur. He clearly admitted that the injuries found on the persons of the appellants were within four to five days. They were not earlier than five days and later than 5 days before the time of examination. He further stated that (fee injuries on the persons of the appellants could be caused on 6-7 or 8-8-1974. In view of this medical evidence, it cannot be said that the injuries were sustained by the appellants in the intervening night of August 8/9, 1974. It appears that something happened before August 8, 1974, in which the appellants sustained injuries. We are, therefore, unable to accept the finding of the Court below that the appellants sustained the injuries while they attempted to kill Heera Lal and Heera Lal resisted them.
12. The false explanation furnished by the appellants to meet the prosecution evidence is certainly not a circumstance which may be given importance. The appellants stated that they were not present in their house in that fateful night and that they were elsewhere. An accused is entitled to take any sort of defence to meet the prosecution evidence. The prosecution evidence must stand on its legs Any infirmity or Weakness in the defence version does not prove the guilt. It is only when the prosecution evidence is sufficient to prove the guilt, the false explanation, if any, furnished by the accused has some relevancy.
13. It may be mentioned that no recovery of any incriminating article was made in consequence of the informations furnished by or at the instance of accused Smt. Hoori.
14. The only formidable piece of evidence speaking against the appellant Nandram is that Dhoti (Article I) and shirt (Article 2) were recovered in consequence of the information furnished by him and at his instance. They were found stained with human blood. Report Ex. P 36 of the Serologist shows that the human blood found on these two clothes was of 'O' group. The defence version is that the blood of accused Nandram is of 'O' group. In defence, Dr. P.K. Gupta (DW 7 Medical Officer Incharge, Blood Bank, General Hospital, Udaipur was examined, who stated that he examined the blood group of accused Nandram on the direction of the Sessions Judge, Udaipur and found that his blood was of 'O' group. Naturally, therefore, blood of 'O'group was found on these two clothes. There is no evidence on record that the blood group of the deceased Heeralal was also of 'O' group. As such, this circumstance that blood of 'O' group was found on these two clothes, is of no consequence and does not connect the appellant Nand Ram with the commission of the crime.
15. The appellants were convicted under Section 120B, I.P.C. We have no hesitation to say that the evidence in proof of conspiracy is completely wanting. There is no evidence, direct or circumstantial, that the appellants had hatched a conspiracy to murder Heeralal. The charge of conspiracy, thus, also, fails.
16. We have pointed out earlier that the prosecution case squarely rests on circumstantial evidence. The circumstantial evidence should be such that it should unerringly connect the accused with the commission of the offence. It is the sum and total effect of the various circumstances which is to be taken into consideration while assessing the guilt of the accused. Conviction should not be based on proof of popular belief that the accused committed the offence. It should be based on facts proved by evidence and not on some assumptions and presumptions. While appreciating circumstantial evidence, the Court should not take in isolation the various circumstances. It should take the overall view of the matter but without substituting conjectures for legal inferences. The accused should not beheld guilty because the defence advanced by him is found false or incredulous. The various pieces of circumstantial evidence, enumerated above, do not connect the appellants with the murder of Heeralal. We are, therefore, unable to maintain their conviction.
17. In the result, (1) the appeals of accused Smt. Aiji stand abated on account of her death; and (2) the appeals of accused Nandram and Smt. Hoori are allowed. The conviction and sentence under Sections 302/120B and 302/34, I.P.C. are set-aside and they are acquitted. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.