Krisana Wanti and Another vs The State

S.S. Sandhawalia, J.—The facts giving rise to these criminal appeals pertain to the gruesome murder of Sat Pal deceased, who according to the prosecution allegations, was done to death at dead of night in his own house by his wife and children. Krishna Wanti appellant is the widow, Vaishnu Das alias Gorkha is the 16 years old son and Shakuntla Devi is the 20 years old married daughter of the deceased. All three stand convicted u/s 302 read with section 34 of the Indian Penal Code and sentenced to life imprisonment each by the judgment of the Sessions Judge, Amritsar, dated the 1st of December, 1966, which is under appeal.

This judgment will dispose of both the criminal appeals, No. 1094 of 1966 filed by Krishna Wanti and Vaishnu Dass appellants and No. 109 by Shakuntla Devi appellant.

Satpal deceased was in his mid-forties and resided in his own house at Bagh Rama Nand, Amritsar, with the three appellants along with another son by the name of Megha and two younger daughters named Nirmal Kumari and Sushil Kumari. The family occupied a portion of the first floor of the house whilst the adjoining portion was rented out to a tenant by the name of Om Parkash. The inter-storey was tenanted by Ram Dev P.W. whilst the ground floor was occupied by two tenants by the name of Mulkh Raj and one Dhirt Ram This house of Sat Pal deceased was situated at a corner of the street whilst in the house opposite resided Chaman Lal, P. W, on one side and on the other side was the house of Balkishen Aggarwal in which Dr. Dharim Lal Malhotra, P. W. was resident as a tenant. At a distance of about 30-40 yards was the house of Kishan Singh P. W. in the vicinity.

Sat Pal deceased jointly owned property and was doing tyre vulcanizing business with his brother Raj Pal P. W. who also resided in the locality but at a distance of about 500 yards away from the house of the deceased. A cow and a she-buffalo apparently were also jointly owned by the brothers and these were tethered in the house of Sat Pal deceased. It was customary for the deceased 1o put fodder to these milch cattle whilst his brother Raj Pal invariably used to come early in the morning and milk them and then divide the same in equal shares between the two.

The suggestion of the prosecution is that Sat Pal deceased had developed an illicit liaison with one Kailash Wanti who was the wife of Bhagwan Dass his brother-in-law and the real brother of Krishna Wanti appellant. In this context the relations of Bhagwan Dass and Kailash Wanti were none too cordial and Kailash Wanti was living separately from her husband and the deceased used to visit her at her house.

The occurrence took place on the night intervening between 2nd and 3rd of May, 1966. At about 9 p. m. on that date Mulkh Raj P. W. had gone up to meet Om Parkash tenant who, however, had gone to Ludhiana, but he noticed that the three appellants and the other children of Sat Pal deceased were present in the house. Similarly Ram Dev P. W- had gone up to the top storey where the latrine was situated and whilst coming down he made a casual enquiry about Sat Pal deceased when Krishna Wanti appellant had told him that Sat Pal had as yet not returned to his house. The other two appellants were also found to be present in the house by him. Thereafter, he returned to his own portion in the house and went to sleep.

With this background, the version of the prosecution begins dramatically with harrowing shrieks raised by the deceased at about 1 a. m. in the night emanating from his house which virtually aroused the whole neighbourhood. The neighbours heard the deceased shrieking out "menu na maro" (Do not beat me), "meri bahn na maroro" (Do not twist my arm), "Krishna menu na mar" (Krishna ! Do not beat me), "Gorkha menu bacha le" (Gorkha save me), "Krishna meri bahn na maror" (Krishna, Do not twist my arm), "Gorkha. menu na mar" (Gorkha, Do not beat me), "Shakuntla Beta menu bacha le" (Shakuntla, my child, save me). "Krishna men phir nahin jawanga" (Krishna, I would not go there again). Chaman Lal P. W. residing in the house opposite was roused on hearing these and shouted out to enquire as to what had happened. He then knocked at the door of the house to enter therein, but Pushpa, the daughter of Dhirt Ram tenant on the ground floor, told him that her father was out of town. He then made enquiries about Om Parkash who was then living on the first floor portion of the house adjoining that of the deceased and was informed that he too was away to Ludhiana. All this while the shrinks persisted and there after a daughter of the deceased opened the window and having looked downwards hurriedly closed the same and thereafter the light in the house were put off and the cries of Sat Pal ceased. Considering that the matter was some domestic trouble in which it was inappropriate for him to intervene, Chaman Lal then returned to his house. Dr. Dharam Lal Malhotra the adjoining resident and his wife had also been aroused by the shrieks and had seen Chaman Lal going up to and knocking at the door of the house of the deceased. Mulkh Raj P. W. on being attracted by the shrieks went towards the stair case but in the way Pushpa daughter of Dhirt Ram met him and told him that she had already been upstairs and made enquiries from Krishna Wanti appellant as to the cause of the commotion and had been informed that Sat Pal had come home drunk and was raising a pointless raula. The explanation apparently satisfied Mulkh Raj and he returned to his house and soon thereafter the shrieks ceased. Similarly, Ram Dev P. W. had also heard the cries of Sat Pal and also noticed that the light was put off and cries ceased after some time. He, however, seems to have evinced some indifference and lack of curiosity and did not move out of his bed.

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[After referring to evidence of the case then his lordship proceeded.]

P. W. 1 Dr. Narinder Mohan performed the postmortem on the dead body of the deceased on the 4th May, 1966, at 11-30 a. m. and found 9 injuries on his person. There was a contusion 4" X 2 1/2" on the right side of the scrotum and 7 abrasions on the arms and legs of the deceased. The fatal injury was a ligature mark described by him as follows :

There was a well defined and slightly depressed marks situated in the neck below the thyroid cartilage encircling the neck horizontally and completely 16" X 1/2" around the neck. The base of the mark was pale and redish and echymosed margins. There were two abrasion marks 1/4" * 1/4" each. One on the right side and the other left side of the upper lip. There was extravasations of blood into the subcutaneous tissues under the ligature mark and the muscle lacerated.

He'' opined that the death was due to the result of strangulation caused by the injury on the neck which was sufficient to cause death in the ordinary course of nature and the probable time that elapsed between death and injury was immediate. The time between death and post-mortem was opined to be about 38 hours.

The gravely incriminating evidence regarding the death shrieks raised by the deceased has been deposed to by five witnesses, namely, Chaman Lal, Mulkh Raj, Ram Dev, Dr. Dharam Lal Malhotra and Kishan Singh P. W.s. Raj Pal P. W. 7 is the brother of the deceased whilst Dr. Prem Sagar had been brought by Raj Pal P. W. to see the deceased on getting a message through Megha. Bidhi Chand P. W. 11, a teacher of the Bhartia Vidyala, Amritsar, had deposed about the presence of Nirmal Kumari and Sushil Kumari in the school on the 3rd May, 1966, and similarly Jiwan Lal P. W. 14, a teacher of the B. K. Higher Secondary School Ghee Mandi, Amritsar, had deposed regarding the presence of Vaishnu Dass in the school on the same day. Puran Singh P. W. had deposed about the extra-judicial confession made to him by Krishna Wanti and Vaishnu Dass appellant though Indar Nath Bhatia has not been produced by the prosecution. Sunder Singh P.W. 13 has given evidence regarding the disclosure statements and the recoveries made at the instance of Krishna Wanti and Vaishnu Dass appellants. Shri H. S. Longia, P. W. 21, Assistant Director, Forensic Science Laboratory Chandigarh, has given his opinion regarding the ashes of burnt underwear and bunyan of Sat Pal deceased sent to him for examination while Banarsi Singh P. W. 15, Chanan Singh P. W. 8 and Sub-Inspector Jigjit Singh are police officials who participated in the investigation of the case.

The plea taken upon behalf of Shakuntla Devi is that she was not present on the relevant day in Amritsar but was in fact at the house of her husband at Ambala. She, however, admitted that the photograph Exhibit P.F./2 was that of Kailash Wanti, the wife of her maternal uncle. Krishna Wanti appellant in her statement before the Magistrate had taken up the plea of denial and in the trial Court also she denied the prosecution allegations and the explanation given by her appears in reply to Question No. 15 in her statement u/s 342, Code of Criminal Procedure, and is in the following terms:

My husband Sat Pal had returned home at about mid night on the night between 2nd and 3rd May, 1966, and on his knocking the door of the house, I opened it. He than enquired from me as to where the children were and I then told him that they were all asleep on the top roof of the house. He than told me that I should also go and sleep with my children on the top roof of the house as he had some friends with him. I then went up and slept with my children on the top roof of the house. I came down from the roof of the house at about 6 a.m. on 3rd May, 1966 and prepared breakfast for my children, who had to go to their school and after I had sent my children to school, I opened the door of the room in which my husband was laying at about 9 a.m. which door was closed but was not chained. I then called at may husband, but there was no response. I then removed the khes from his face and I found as if he was unconscious. I then sent my son Megha to Raj Pal P.W. to call him as something had happened to Sat Pal. Soon thereafter, Raj Pal accompanied by Dr. Prem Sagar P.W. came to my house. Dr. Prem Sagar examined Sat Pal and told us that he was dead and thereupon we all started weaping." Vaishnu Dass appellant has also similarly taken up the plea of denial of the prosecution allegations and the suggestion on behalf of the three appellants is that the case has been instituted against them at the instance of the brothers of the deceased. No defence evidence, however, has been adduced.

We propose to deal in the first instance with the Criminal Appeal No. 1094 of 1966 by Krishna Wanti and Vaishnu Dass appellants whose cases have been ably presented by their learned counsel Mr. Dara Singh and Mr. M.L. Nanda. Mr. Dara Singh, learned counsel for Krishna Wanti, has first stressed the fact that the case against his client is based primarily on circumstantial evidence and as such the inculpating facts must be found to be incompatible with her innocence. He argues that the chain of circumstances proved by the prosecution against this appellant is not complete and does not necessarily lead to the only hypothesis of guilt which is requisite in law to sustain a conviction in such a case. The gravamen of the argument raised on behalf of the appellant is that in the version given by Chaman Lal P.W. 2 in Court as well as in the first information report lodged by him. the names of neither of appellants appear. It is particularly pointed out that the shrieks deposed to by this witness do not refer to the name of either Krishna Wanti appellant or to any other. All that this witness deposed to as having been heard by him is that the deceased had shouted "menu na maro" (Do not beat me) "meri bahn na maror" (Do not twist my arm). The argument raised is that this is wholly natural and does not implicate any one of the appellants and subsequent statements by other witnesses are an improvement and are deliberate concoctions to implicate the appellants. To properly appraise this contention, it has to be remembered that Chaman Lal P.W. lives in the house opposite and not in the house in which the occurrence took place. The exact stage at which he was aroused and came down in the street is indeterminable. It is the prosecution case that he was in the street outside whilst the incident took place on the first floor of the house of the deceased. During this interval he was knocking at the door to have the same opened and had a talk with Pushpa daughter of Dhirth Ram tenant and was making enquiries from her regarding Om Parkash. In this context, no inference against the prosecution case can be raised merely from the fact that what this particular witness heard did not specifically name any of the appellants. As a matter of fact it only shows the spontaneous nature of the first information report which clearly was lodged without any concoction. The other witnesses, namely P.Ws. Mulkh Raj, Ram Dev, Dharam Lal Malhotra, and Kishan Singh without exception have deposed to the shrieks which they had heard in which the names of the appellants did specifically occur. Mr. Dara Singh has been wholly unable to assail their evidence or to show any animus of all these respectable and natural witnesses against the appellants. In our view the mere absence of the names of the appellants regarding the shrieks raised and deposed to by Chaman Lal is by itself not a circumstance which in any way goes to the root of the case.

It was then argued that Chamman Lal P.W. had deposed that all the three appellants were present at the cremation of the deceased. The learned counsel has contended that if at this stage the appellants had been named, the investigating officer would not have left them unarrested. This contention fails to notice that in the very next sentence where this fact was elicited from Chaman Lal P W. he had expressly stated that no police officer was present at the cremation ground The failure of the investigating agency to locate the appellants at the cremation ground is not, in our view, a matter of great significance. The investigation has clearly suggested that an attempted was made to trace the appellants but they were apparently absconding and not available.

The last argument raised by Mr. Dara Singh was that the recoveries on the 7th May, 1936, are belated and have been mad" as many as five days after the occurrence and reliance should. therefore, not be made on them. In this context it is noticeable that the arrest of the two appellants Krishna Wanti and Vaishnu Dass was made on the 5th May, 1966, and in this context the interrogation and the recovery on the 7th May, 1966, is not so utterly belated as to merit rejection on the ground of delay alone.

Mr. M. L. Nanda, learned counsel for Vaishnu Dass appellant, has first assailed the extra-judicial confession said to have made been by Krishna Wanti and Vaishnu Dass appellants. It is pointed out that Indar Nath Bhatia, to whose saw machine the appellants are said to have gone and confressed, has not come-forward to support the prosecution version. The reason for the presence of Puran Singh P. W. at the saw machine of Indar Nath Bhatia does not appear to be either genuine or plausible. No connection is suggested between these two persons and the two appellants and it is rightly argued that it would be wholly implausible for the two appellants to go to these strangers and make a confession of the nature deposed to. There is merit in this contention raised by Mr. Nanda and we are ourselves inclined to the view that the extra-judicial confession in the case is not worthy of credence and Mr. Narinder Singh, learned counsel for the State, has also very fairly conceded that he does not wish to rely on this piece of evidence. We would, therefore, rule out this part of the prosecution case out of our consideration. Mr. Nanda had then argued that the motive suggested for the murder is wholly inadequate and the prosecution case should be rejected on that ground also. In this context, it is noticeable that no serious challenge has been made on behalf of the defence that the deceased was in fact having an illicit connection with Kailash Wanti. This woman is the wife of the brother of Krishna Wanti appellant. Apparently, this liaison had led to the breaking up of the home of Bhagwan Dass, the brother of Krisha Wanti appellant. That the wife and the children of the deceased would grossly resent such a relationship goes without saying. The suggestion of the prosecution is that till late on that night the deceased had not come home and had apparently returned from the house of this Kailash Wanti. That being so, it is undoubted that this would be a matter of the gravest provocation to Krishna Wanti appellant and also to the grown up children of the deceased. As to what primordial passions had motivated the jilted wife and her adolescent son at the particular moment of the assault must necessarily remain a matter of inference. In this context, it is hopeless to argue that the motive suggested by the prosecution is either improvable or inadequate for the commission of the present offence. The last submission made by Mr. Nanda is that the links in the chain of evidence against the appellants are inadequate and not sufficient to sustain the conviction.

In the present case, the prosecution has been able to prove the motive which they set out to bring on record. Raj Pal P.W. has expressly deposed thereto and in cross-examination of this witness we find no serious challenge nor have learned counsel for both these appellants made any serious attack thereupon. Shakuntla Devi appellant had in her statement u/s 342, Code of Criminal Procedure, admitted that the photograph Exhibit P.F./2 recovered immediately after the murder from the purse of the deceased along with that of the deceased himself was that of Kailash Wanti who was her maternal aunt. Two equally important factors in the present case stand virtually admitted. It is undeniable that the deceased died in his house at about midnight. This fact is borne out from the evidence of the medical witness who has opined regarding the probable time betwixt the death and the time of the post-mortem and more particularly by the evidence of Dr. Prem Sagar who has deposed that when he went to see the deceased at the behest of Raj Pal P.W. 7 he found him stone-dead and had straightaway declared that he must have died six or seven hours ago. Again, the factum of the presence of the appellants in the house during the time of the murder is virtually undeniable. The medical evidence clearly shows that the deceased met an unnatural death and had struggled in the process of the assault. Injuries were found on his person and the factum of strangulation was patent by the ligature mark and has been clearly deposed to by the medical witness and has not been challenged on behalf of the defence. We are of the view that it is not even quite precise to term the present case as one of circumstantial evidence alone. We have in this case the direct testimony of the dying, shrieks of the deceased. These have been deposed to by wholly independent and reliable sources. These shrieks named Krishna Wanti and Vaishnu Dass, the two appellants, as his assailants. They tersely and tragically described the arm twisting and the beating to which he was being subjected before he was finally silenced by strangulation. They give a hint regarding the motive for the assault when he shrieked out to his murderous wife that he will not go there again (Krishna, main phir nahin jawanga). These shrieks, to our mind, are a dying declaration. Each is at once tragic and spontaneous and are gravely and almost conclusively incriminating qua the two appellants Krishna Wanti and Vaishnu Dass in their import. We, have already briefly adverted to the evidence of as many as five witnesses who have deposed regarding these shrieks. Each one of them appears to us to be wholly independent and the testimony given in Court by them is equally consistent. Neither of them has any animus whatsoever against the appellants and none has even been suggested. They are all neighbours and thus natural witnesses. Nothing has been suggested by the learned counsel appearing on behalf of the three appellants which can possibly detract from their testimony.

The conduct of the appellants in the present case ''is an added circumstance against them There is evidence to the effect that when immediately on the shrieks being raised the neighbours wanted to enquire they were duped by the explanation that deceased had come home drunk and was raising a pointless raula. Again, it appears wholly suspicious that whilst the master of the house lay dead having been murdered at night, in the morning the two younger daughters were sent to school and the appellant Vaishnu Dass also proceeded to school pretending as if nothing whatever had happened. When Raj Pal P.W. came into milk the she buffalo and the cow and wished to seek an explanation for the absence of his brother he was put off with a false excuse that he was yet asleep and would rise in due Course. Again, when Raj Pal P.W. and Dr. Prem Sagar arrived to look at the deceased an equally implausible explanation was given and subsequently also at no stage was an explanation rendered to Chaman Lal and other P.Ws. who had come in. The recovery of the bloodstained rope at the instance of Vaishnu Dass appellant is yet another strong link in the chain of prosecution evidence against him. We had asked the learned counsel for the State as to the exact import of recoveries attributed to Shakuntla Devi. There is the evidence of Shri H. S Longia P.W. 21 Assistant Director Forensic Science Laboratory but the clothes regarding which he had opined were not connected by credible evidence with the deceased It is thus not possible to raise any other inference against Shakuntla Devi by this piece of evidence except this that she had attempted to destroy some clothes by burning in suspicious circumstances. Lastly, the failure of Vaishnu Dass appellant to furnish any explanation and the patent falsity of the explanation furnished by Krishna Wanti is in itself an additional factor against these two appellants.

The suggestion that even though she was in the house and the whole neighborhood was aroused by the death shrieks of her husband while she and her family slept undisturbed during the night is not only false but wholly fantastic in a case of circumstantial evidence, the non explanation and false explanation are certainly factors from which an adverse inference can be raised against the accused- person. The Hon''ble Judges of the Supreme Court considered this aspect in Deonandan Mishra Vs. The State of Bihar, and had observed as follows:

It is true that in case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation which if accepted, though not proved would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of expiation OT false explanation would itself be an additional link which completes the chain.

To the same effect are the observations in Pershadi Vs. State of Uttar Pradesh, and Kishore v. The State AIR 1967 Orissa 118.

On an overall consideration of the above, we are of the opinion that the evidence in this case is consistent only with the guilt of the two appellants and it is inconsistent with any other rational explanation. The conviction and sentence of these two appellants, therefore, must be affirmed and their appeal is dismissed.

Mr. Har Parshad, learned counsel for Shakuntla Devi in Criminal Appeal No. 1096, of 1966, has rightly pointed out the distinguishing factors of the case of this appellant from those of the other two appellants in Criminal Appeal No. 1094 of 1983. The gravamen of Mr. Har Parshad''s argument primarily is that even on accepting the prose�cution version regarding the shrieks arisen by the deceased Sat Pal, a grave doubt arises as to the guilt of this appellant. It is even argued that on a favourable construction of these shrieks which an accused person is entitled to, it is possible that this appellant far from joining in the assault was hindering the same and the deceased was in fact seeking her aid to save her from the hands of the other two appellants. In this context, it is pointed out that so far as the evidence of Chaman Lal P. W. 2 is concerned, it is wholly neutral because it did not in any way name the present appellant or even the other two. Emphasis was hence placed on the evidence of Mulkh Raj P. W. 3 who has deposed to a shriek raised by the deceased to the following effect:

Shakuntla Beta menu bacha le" (Shakuntla, my child, "save me".

Again the evidence of Ram Dev P. W. 4 also describing the shrieks had described them as follows :

Gorkha na mar", "Krishna bahn na maror" and "Shakuntla bacha le".

Particularly, from the evidence of this witness, it is argued that this depicts a situation in which Gorkha and Krishna Wanti appellants were the assailants while the deceased was seeking the aid of this appellant to be saved from their hands. Similarly, Dr. Dharam Lal Malhotra P. W. 5 had also stated that the shriek relevant qua this appellant raised by the deceased was "Shakuntla Beta menu bachale".

We find substance in the argument raised on behalf of this appellant. Whilst we are not impressed by the defence suggestion made on her behalf that she was not at all present at the spot, we are inclined to believe that even her presence in the house in the context of the shrieks attributed to the deceased can be consistent with her innocence. Even though we have earlier rejected the extra-judicial confession against the other two appellants, it is noticeable that not even a suggestion of any similar confessional statement has been made against this appellant. No disclosure statement u/s 27 of the Indian Evidence Act or any incriminating or suspicious recovery is either attributed by the prosecution as regards the case against Shakuntla Devi. Another factor which has to be noticed is that this appellant was arrested as late as the 15th of May, 1966, from Ambala, which is her conjugal home. The only incriminating conduct suggested against her is the explanation sought to be given by her to her uncle Raj Pal when he had come in the morning. This fact alone is in no way inconsistent with her innocence. Assuming that her mother and brother were the assailants, it would be too much to expect that she would forthwith wish to denounce them as murderers. If subsequent to the commission of the offence, she failed to do so, that by itself is not, in our view, in any way incriminating. We, are, therefore, of the view that these distinguishing features bring her case within the ambit of a reasonable doubt which must accure to her. We would, therefore, set aside her conviction and sentence and her appeal is accepted.

Shamsher Bahadur, J.

I agree entirely.