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PETITIONER:

GANESHLAL

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT10/04/1992

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

KASLIWAL, N.M. (J)

CITATION:

1992 SCR (2) 502 1992 SCC (3) 106

JT 1992 (2) 592 1992 SCALE (1)811

ACT:

Indian Penal Code, 1860:

Sections 34, 201, 203 and 302-Delhi of wife due to

severe burns-Husband pleading innocence-Claiming it to be

suicide-Circumstantial evidence complete and consistent that

husband and his family members committed the offence-Conduct

of accused-Unnatural, indifferent and hard-hearted-All

accused acquitted by trial court-High Court reversing and

convicting the husband alone-Conviction and sentence-

Validity of.

Criminal Procedure Code, 1973:

Section 313-Death caused while in custody of accused-

Plausible explanation for cause of death-Need to be given in

the statement.

Section 161:

Criminal trial-Delay in recording statement of witness-

Whether and in what circumstances renders the evidence

doubtful-Need for scanning the evidence carefully.

HEADNOTE:

At the residence of the appellant, his wife was found

dead with severe burns. The appellant, his parents, sister,

maternal uncle and the uncle's daughter were charged with

the offence of murder and tried under section 302 read with

section 34 and sections 201 and 203 read with section 34

IPC, though initially the case was registered under section

306 read with section 34 IPC.

The Trial Court acquitted all the accused. On appeal

the High Court convicted the appellant alone under sections

302 and 201 IPC and sentenced him to undergo rigorous

imprisonment for life and three years imprisonment

respectively, against which the appellant has preferred the

present appeal.

503

On behalf of the appellant, it was contended that it

was a case of suicide as no kerosene was found in the house

except in the room where the death occurred; that the door

to the room from stairs was not closed from outside and in

case of murder, the deceased could have run away from the

room opening the latch; that the deceased was determined to

commit suicide for humiliation caused to her on account of

her not being allowed to go to the house of her sister; and

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that there were no signs of external injuries. It was also

contended that since the prosecution all through proceeded

on the assumption that the appellant abetted suicide,

suddenly it could not be said to be a case of murder.

It was also contended that since all the other accused

have been acquitted, the appellant could not be convicted

under section 302 IPC.

Dismissing the appeal, this Court,

HELD : 1. There is no evidence or even suggestion that

the deceased had any tendency to commit suicide or affected

with any psychosis for committing suicide. It is also clear

from the evidence that the door was not bolted from inside.

Unless the doors from outside were closed and made the

victim alone remain in the room, the smoke would not have

confined to the room. There is no evidence of any struggle

by her as there was no injuries to her back or feet or

rubbing the ground. Kerosene tin was found and there were

no signs of kerosene sprinkled in the room. The instinct of

self preservation at the height of agony must lead in an

attempt to put out the flames at least with hands. While

the deceased was drying the clothes, her palms were wet,

somebody must have come from behind, caught hold of her

palms and another her legs, and she was made unconscious.

The means used to make her unconscious is not available

either from medical evidence or circumstances. She was made

to lie down in a supine position on the ground. Thereafter,

kerosene appears to have been poured from the tin brought by

someone and set her on fire. It is indisputable that

kerosene smell was found in the room and she died due to

burns. The walls and ceiling became blackish which would

clearly show that a large quantity of kerosene was poured on

her after she became unconscious due to which her clothes

were soaked of kerosene. The witnesses have also seen from

outside for about 10 to 20 minutes that smoke was coming

form the room. These circumstances clearly establish that

the death was not due to suicide, but one of homicidal.

[508G, H; 509A-E]

504

2. The normal ordinary human conduct would be that when

one of their inmates was in flames, they would have made

every endeavour to save her life, if it were a case of

suicide, and call the people to come to their rescue to save

her life or at least would have sought first aid from PW-6,

a compounder, who is next door neighbour, to save the life

of the deceased. No such attempt was made; nor even

attempted. On the other hand the appellant's earliest

attempt was to misguide the people that the deceased died

due to short circuit, which claim was falsified from the

evidence of PW-10, Electrical Engineer. [513G, H;514A]

3.1. The evidence on record is not sufficient to arrive

at an immediate motive to commit the crime and the case

depends on circumstantial evidence. But in circumstantial

evidence also when the facts are clear it is immaterial that

no motive has been proved. Men do not act wholly without

motive. Failure to discover the motive of the offence does

not signify the non-existence of the crime. The failure to

discover motive by appropriate clinching evidence may be a

weakness in the proof of the prosecution case, but it is not

necessarily fatal as a matter of law. Proof of motive is

never an indispensable factor for conviction. [510D-F]

3.2. The evidence of witness recorded at late stage

must be received with a pinch of salt. Delay defeats

justice. But each case has to be considered on its own

facts. In the instant case, the High Court is well

justified in placing reliance on the evidence of PW-6. In

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fact material part of his evidence was not subjected to

cross examination, except suggesting that he was deposing

falsely. Under these circumstances he is a truthful and

reliable witness. His evidence clearly show that neither

the appellant, nor any member of the family though were

present in the house, attempted to save the deceased but

were simply sitting in the first floor unmoved by even the

ghastly murder and the appellant was guarding at the grill

gate preventing the people from entering into the house

falsely stating that there was short circuit. This evidence

receives corroboration from the evidence of PW-7 and PW-8.

[512C-E]

3.3 In his examination under section 313 Cr. P.C., the

appellant admitted that A-6 went to the police station and

gave FIR stating that the deceased caught fire while she was

handling the wet clothes for drying, due to short circuit,

and that this information was conveyed by the appellant

himself. This admission is not only a relevant fact under

section 8 of

505

Evidence Act as res gestae but a most important circumstance

against the appellant. The indifferent and hard hearted

conduct are also important circumstances. It is settled law

that the conduct of an accused in an offence previous and

subsequent to the crime are relevant facts. Absence of any

attempt to save the life of the deceased while she was

burning and was charred to death, the conduct of the accused

in not attempting to give any medical aid, the conduct of

the appellant immediately after the death and falsely

proclaiming that there was short circuit implying to scare

away the people from attempting to save the deceased - these

are most telling and relevant crucial fact apart from

repulsive inhuman conduct. The false plea of suicide is yet

another relevant fact. When the death had occurred in the

custody of the accused the appellant is under an obligation

in section 313 Cr. P.C. statement at least to give a

plausible explanation for the cause for her death. No such

attempt was even made except denying the prosecution case.

These facts completely are inconsistent with the innocence,

but consistent with the hypothesis that the appellant is a

prime accused in the commission of gruesome murder of his

wife. The circumstantial evidence is complete and

consistent with the only conclusion that the inmates alone

committed the crime and the appellant was one among them.

The absence of an appeal against acquittal of A-1 and A-3 to

A-6, all of them or who among them shared common intention

with the appellant is obviated. The appellant is the

principal perpetrator of the crime or one among the accused

who shared common intention to murder the deceased. The

conviction of the appellant is therefore altered to one

under section 302 read with section 34 IPC. Accordingly,

appellant is convicted for the murder of his wife and is

sentenced to undergo rigorous imprisonment for life. The

conviction under section 201 IPC is set aside. [514C-H;

515A, B]

Atley v. state of U.P., AIR 1955 SC 807; Balakrushna

Swain v. State of Orissa, AIR 1971 SC 804, relied on.

4. The Sessions Court framed the charges under section

302 read with section 34 IPC. Thus, the fact of registering

the case initially by the local police under section 306 IPC

loses all significance. It cannot be disputed that the

Sessions Courts was fully competent to frame charges under

section 302 read with section 34 IPC. At the trial, if the

evidence adduced by the prosecution is sufficient to bring

home the offence under section 302 IPC, the conviction

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thereon does not become illegal. [510B, C]

506

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

732 of 1991.

From the Judgment and Order dated 30.10.91 of the

Bombay High Court of Judicature in Criminal Appeal No. 215

of 1987.

U.R. Lalit, R.K. Jain, Makrand D Adkar, Jamshed Bey and

Mrs. V.D. Khanna Advocates for the Appellants.

V.V. Vaze and S.M. Jadhav for the Respondents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. This appeal is under s.2 of Supreme

Court Enlargement of Criminal Jurisdiction Act, 1970. The

appellant along with his parents, sister, maternal uncle and

uncle's daughter were charged for the offence under s.302

read with s.34 and ss.201 & 203 read with s.34 I.P.C. of the

murder of his wife Kanchana. In S.T. No. 125/84, the Addl.

Sessions Judge, Akola by judgment dated February 10, 1987

acquitted all of them. On appeal, the appellant alone was

convicted under s.302 and s.201 IPC and sentenced to undergo

rigorous imprisonment for life and three years respectively

by judgment dated October 30, 1991 of the High Court of

Bombay, Nagpur Bench, Nagpur.

The material facts that lie in short compass are thus :

Kanchana was married to the appellant in the year 1975.

In course of time the appellant's father became rich, while

her parents' family remained poor leading to constant

humilation. The sister of Kanchana, Vanmala, PW-5, was also

married in the same village, Mangrulpir. On September, 3,

1983, PW-5 went to the deceased family at about 10.00 to

10.15 a.m. and invited in her house for which mother-in-law

of the deceased and Kanchana to attend "Teej" function in

her house for which the mother-in-law refused to accept the

invitation and also did not permit Kanchana to attend the

function which resulted in exchange of words etc. When she

was coming out, she heard abuses against the deceased and

somebody being beaten. After extending invitations to two

or three people when she came back home and was entering

into her house, PW-9, her maid servant, came running and

told her that Kanchana was dead. Thereafter she gave

information to her father, PW-4, and others at Amravati. A-

6, maternal uncle of the appellant, went to the Police

Station and lodged First Information

507

Report, Ex-73, that while Kanchana was drying wet clothers

on the top floor, there was short circuit in the house

resulting in her death. Mohanlal PW-4, on receipt of the

news reached the appellant's house at Mangrulpir at about

4.00 p.m. On seeing the condition of the dead body he too

laid complaint of murder. In the meanwhile the police

registered the crime. The police reached the spot at about

12.50 p.m. A.S.I. Jadhao, PW.14 along with Head Constable

Sharma, PW-11, conducted investigation. He drew the

Panchanama, Ex-66, the scene of offence, attested by PW-7

and another. He recovered the burnt articles, ornaments

etc. and sent the body for autopsy. It was further

investigated by S.I., PW-15. Subsequently, it was entrusted

to the C.I.D. and PW-16, Kshir Sagar conducted the

investigation and laid the chargesheet. It may be relevant

to state at this stage that initially the crime was

registered under s. 306 read with s.34 I.P.C. Later it was

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converted and the charges were framed by the Sessions Court

under s.302 read with s.34 I.P.C.

The prosecution placed reliance on the evidence of PW-4

and PW-5 to prove motive for the crimes . PW-6, the

Compounder and PW-8, Tea Stall owner, PW-9, maid servant of

PW-5 to prove the conduct of the accused together with the

medical evidence and also chemical examiner's report. It

also relied on the report Ex. 73 lodged by A-6. The case

rests on circumstantial evidence. The circumstances relied

on by the prosecution are as follows :

The motive, namely the affluent circumstance of the

accused party, the relative poor financial position leading

to ill treatment of Kanchana. The treatment meted out to

Kanchana in the presence of Vanmala, followed by beating.

PW-9, maid servant informing of the death. PW-6 spoke of

the appellant's conduct, corroborated by PW-8, of standing

at the grill gate, which is the only entry into the house an

preventing the people to go into the house stating that

there was short circuit and to save them; indifferent

attitude of the in-laws and other inmates and keeping mum,

their leaving the deceased alone in the third floor in

flames; emitting of kerosene smell; and their non-

disclosure on inquiry for the cause of the death. PW-10,

the Engineer, Electricity Department spoke that there was no

short circuit; the conduct of the appellant and also the

first information report given by A-6, the medical evidence

that the death was due to shock and suffocation. The

chemical analyst report and evidence of scene of offence by

PW-7.

508

Strenuous attempt was made in the grounds of appeal and

also vehemently contended by Shri U.R. Lalit, the learned

Senior counsel for the appellant, that one of the Judges

(Justice A.A.Desai) who decided the appeal, argued against

the appellant as an Asstt. Govt. Pleader and despite having

been brought to his notice, the learned Judge disposed of th

appeal suggesting, thereby, that the appellant was not meted

out fair treatment. We find no force in th contention. It

is true that the record now placed before us would show that

way back in 1984 as Asstt. Govt. Pleader, Shri Desai

appeared against the appellant in a bail application and

other proceedings. Might be that the learned Judge had

forgotten about his appearing against the appellant. It

might also be possible that it was not brought to his notice

when the Bench heard the appeal. Finding that the matter

went against the appellant, he turned round and desperately

raised the contention. However, to remove the feeling of

injustice due to above factor and to satisfy ourselves of

the merits, we have heard the appeal as if it is a first

appeal against the judgment of the Sessions court. The

appellant engaged Shri U.R. Lalit and Shri R.K. Jain, Senior

Advocates, apart from a band of Junior Advocates assisting

them. We ourselves minutely considered the entire evidence

afresh and reached our own independent conclusions.

The crucial question in this case is whether Kanchana

died due to suicide or homicide. The situs is the third

floor of the house of the appellant. The occurrence took

place at 10.30 a.m.. No outsider had access into the house

that too except through the grill gate in the ground floor.

In the first floor, parents and sister of the appellant

live. The second floor was in the occupation of he

appellant and the deceased and the third floor consists of

one room and open varandah. The occurrence has taken place

in the room on the third floor. Thus it would be apparent

that it is a custodial death. The Doctor specifically stated

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that she died due to suffocation and shock by inhaling

Carbonmonoxide. It would thus be clear that the door was

closed at the time when this occurrence had taken place.

There is no evidence or even suggestion that the deceased

had any tendency to commit suicide or affected with any

psychosis for committing suicide. It is also from the

evidence that the door was not bolted from inside. Unless

the doors from outside were closed and made the victim alone

remain in the room, it would be difficult to the smoke

confining to the room. From evidence it is clear that the

deceased went to the top floor to dry up wet clothes. The

deceased was of a weak constitution. Her arms

509

and feet were not burnt. She was found lying on back in a

supine position. Her back and clothes on back were not

burnt. There is evidence on record that there was a bucket

with water and wet clothes in the room. There is no

evidence of any struggle by her as there are no injuries to

her back or feet or rubbing the ground. Kerosene tin was

found and there are no signs of kerosene sprinkled in the

room. The instinct of self preservation at the height of

agony must lead in an attempt to put out the flames at least

with hands. Thus it would appear that, while the deceased

was drying the clothes, her palms were wet, somebody must

have come from behind, caught hold of her palms and another

her legs, and she was made unconscious. The means used to

make her unconscious is not available either from medical

evidence or circumstances. She was made to lie down in a

supine position on the ground. Thereafter, kerosene appears

to have been poured from the tin brought by someone and set

her on fire. It is indisputable that kerosene smell was

found in the house. The walls and ceiling became blackish

which would clearly show that a large quantity of kerosene

was poured on her after she became unconscious due to which

her clothes were soaked of kerosene. After fire was lit

there was heavy smoke screen. That will be visible when we

find that the roof and walls became blackish. The witnesses

have also seen from outside for about 10 to 20 minutes that

smoke was coming from the room. These circumstances clearly

establish that the death was not due to suicide, but one of

homicide. The contention that no kerosene was found in any

other parts; the doors to the room from stairs was not

closed from out side in case of murder she should have run

away from the room opening the latch; she was determined to

commit suicide for humiliation caused to her and PW.5

Vanmala her sister in not allowing her to go to PW.5's house

and that there were no signs of external injuries and,

therefore, the death was due to suicide is fallacious and

the High Court has rightly negatived the same.

The next contention that the prosecution all through

proceeded with the assumption that the accused abeted

suicide, punishable under s. 306 IPC and that, therefore, it

is not a case of murder has no substance.

That apart, it appears that the investigation made by

the local police initially did not proceed on the correct

lines and no sincere effort appears to have been made to

collect the evidence of the material facts. The

investigation was later on entrusted to the C.I.D. on

10.11.1983 in pur-

510

suance of an order dated 3.11.1983 passed by superior

officers. PW. 16 Sri Kshirsagar, Inspector C.I.D. conducted

the investigation and recorded the statements of some more

witnesses. Ultimately he handed over the charge of

investigation to Mr. Deshpande (PW.18), Dy. S.P.-C.I.D.,

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Crimes on 16.12.1983. Mr. Deshpande also recorded the

statements of some more witnesses and collected the other

material evidence and after verifying and careful

consideration of all the evidence, he added the charge under

s.302 I.P.C. Thereafter charge was submitted in the Court

of Judicial Magistrate, First Class, Mangrulpir on 18.9.1984

who committed the case to the court of Session Judge, Akola

for trial. The Sessions Judge, Akola for trial. The

Sessions Court framed the charges under s.302 read with s.34

I.P.C. Thus, the fact of registering the case initially by

the local police under s. 306 I.P.C. loses all significance.

It cannot be disputed that the Sessions Court was fully

competent to frame charges under s. 302 read with s. 34

I.P.C. at the trial, if the evidence adduced by the

prosecution is sufficient to bring home the offence under

s.302 I.P.C., the conviction thereon does not become

illegal.

It is next contended that the parents, sister, maternal

uncle and uncle's daughter, A-1, A-3 to A-6 having been

acquitted the appellant cannot be convicted under s.302

I.P.C. The question therefore, is whether it is the

appellant alone who has committed the offence or parents,

sister and two others also are participis criminis. It is

true as contended for the appellant that the evidence on

record is not sufficient to arrive at an immediate motive to

commit the crime and the case depends on circumstantial

evidence. But in circumstantial evidence also when the

facts are clear it is immaterial that no motive has been

proved. Men do not act wholly without motive. Failure to

discover the motive of the offence does not signify the non-

existence of the crime. The failure to discover motive by

appropriate clinching evidence may be a weakness in the

proof of the prosecution case, but it is not necessarily

fatal as a matter of law. Proof of motive is never as

indispensable factor for conviction. In Atley v. State of

U.P., AIR 1955 SC 807 at 810 this court held that where

there is clear evidence that the person has committed the

offence, it is immaterial where no motive for commission of

the crime has been shown. Therefore, even in the case of

circumstantial evidence, absence of motive which may be one

of the strongest links to connect the chain would not

necessarily become fatal provided the other circumstances

would complete the chain and connect the accused with the

commission of the offence, leaving no room for reasonable

doubt, even from the proved circumstances. Therefore, the

511

evidence of PW-4 and PW-5 partly with regard to the motive

may not be sufficient to bring home the strong immediate

motive. But the evidence of PW-5, Vanmala, that on the

fateful day, she went to her sister's house situated at a

distance of 40 to 50 ft. from her house and that she

extended invitation to Kanchana and Kanchana's mother-in-law

to attend the "Teej" ceremony in her house was not disputed

in the cross examination. It was around 10.00 to 10.15 a.m.

It is not necessary to dilate the conversation for refusal

to attend the ceremony but suffice to state that the

appellant was present at that time. When Vanmala came down

from the first floor, she heard exchange of words and

somebody being beaten. After extending invitation to some

people when she returned home, her maid servant, PW-9, after

some time came and told her that her sister died. From her

evidence in this behalf, there is no contradiction, but

there is an omission of hearing exchange of words and some

body being beaten, in her statement recorded under s.161 Cr.

P.C. Giving allowance to omit this part of the evidence i.e.

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exchange of words and hearing the beating of somebody, the

fact remains that at 10.30 a.m. Kanchana died. It is

established from evidence of Vanmala, PW.5 that she saw her

sister Kanchana alive at about 10 to 10.15 a.m. in the

company of her husband, in-laws, sister-in-law in the house

and within few minutes thereafter she was reported dead

while in the house solely occupied by the accused appellant

and his family members.

Thereafter we have the evidence of PW-6, Moti Ram, who

admittedly is a Compounder in Dr. Chitlange Nursing Home,

which is situated adjacent to the house of the appellant.

Therefore, he is a natural witness. It is his evidence that

at about 10.30 a.m. he heard the voice of the appellant

stating "kakaji close down" "kakaji close down". The

appellant was at the grill holding it. It is already stated

that the grill is the gateway into the house and to the

stair case. He went to the appellant's house; the appellant

prevented entry into the house; PW-6 pushed him aside and

went inside the house. The appellant's parents, sister and

A-5 were in the first floor. When he enquired, they did not

disclose anything when asked for, specifically the mother of

the appellant also did not speak anything. Only his father

said that Kanchana was burning. When PW.6 went to the third

floor, he saw Kanchana burning, having no clothes on her

person and she was in flames and her thighs were burning.

He smelt kerosene and thereafter he went away. It is true

that there was a delay of nearly 21/2 months in recording

his statement but it goes explained as the investigation did

not

512

proceed in the desired lines initially and only after PW.16

took over the investigation, he recorded the statement of

PW.6. The dispensary used to open by 10.00 a.m. and his

presence is natural. He has no axe to grind against the

appellant or any of the members of his family. He is also

an independent witness. It is true that he was a Compounder

working with Doctor Chitlange, brother-in-law of PW-5.

There nothing on record nor even suggested that the family

members of PW.5 were inimically disposed towards the

accused. It was suggested to PW.5 which was admitted that

appellant's mother visited PW.5 when she sustained an injury

which would show that both families were on cordial terms.

So PW.6 being a natural witness his evidence cannot be

doubted due to delay. It is true that this court in

Balakrushna Swain v. State of Orissa, AIR 1971 SC 804 held

that the evidence of witness recorded at late stage must be

received with a pinch of salt. Delay defeats justice. But

each case has to be considered on its own facts. In view of

the above facts we have scanned his evidence carefully. We

are satisfied that he is a truthful witness. The High Court

is well justified in placing reliance on his evidence. In

fact material part of his evidence was not subjected to

cross examination, except suggesting that he was deposing

falsely. Under these circumstances he is a truthful and

reliable witness. His evidence clearly shows that neither

the appellant, nor any member of the family though were

present in the house, attempted to save Kanchana but were

simply sitting in the first floor unmoved by even the

ghastly murder and the appellant was guarding at the grill

gate preventing the people from entering into the house

falsely stating that there was short circuit. This evidence

receives corroboration from the evidence of PW-7 and PW-8.

PW-7, Brij Lal, Panch witness stated that the grill door was

closed and door was guarded black, the walls became blakish

and the burnt clothes were smelling with kerosene. One

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basket with wet clothes was lying in the room. He also saw

kerosene tin. PW-8, Liakat Ali, in another independent

witness. He owns a tea hotel opposite just about 30 to 40

ft. from the house of the appellant. His statement was

recorded on the next day. In his evidence he stated that in

the beginning he saw smoke coming from the 3rd floor and

later he saw a crowd collected in front of the appellant's

house. He also went there. He saw the appellant shouting

that there was an electric short circuit in the building and

was requesting the people to save them. He was standing at

the grill gate and when the witness

513

tried to enter in the house, the appellant prevented him. He

pushed the appellant aside and went inside the house. In

the first floor, he saw the appellant's mother, sister and

father sitting. On enquiry they did not speak anything but

directed to go upstairs. When he went, he saw the body of

the deceased in the room burning. The only omission in his

statement under s.161 Cr. P.C. was regarding his asking the

mother and sister of the appellant and their directions to

go to the upstairs. He admitted that his shop belongs to

PW.5's family. Admittedly he too had no enimity with the

appellant or his family, nor even suggested. As stated

earlier, the family of PW-5 had also no enimity. Under

these circumstances PW-8 being also an independent witness,

his evidence inspires confidence to believe him as a

truthful witness. The High Court was right in believing his

evidence. From the evidence of PW-6 and PW-8 it is clear

that the appellant was falsely exclaiming that there was a

short circuit and requesting the people to save them. At

the same time he was preventing the people from getting into

the house. They saw the appellant and other accused in the

house without attempting to save the life of Kanchana. It

may be relevant to state that the earliest version of A.6 in

Ex. 73 report given to the police was that the deceased was

drying the clothes at that time. Due to short circuit she

received shock and died. This theory is now found to be

false from the evidence of P.W.10, the Electrical Engineer.

It is also now not set up as defence even before us.

Evidence of PW.7, the panch witness, and Asstt. Sub-

Inspector, PW-14, and PW-6 and PW-8 clearly establishes that

in the room on the third floor, the deceased was seen

burning and that the door was open from outside. The

contention that the deceased had access to open another door

from inside into the staircase from the room and that it is

not a case of homocide, is false in view of the facts

narrated hereinbefore.

From this evidence it is clear that the accused

appellant and his family members were present in the house

at the time when the deceased was buring due to fire lit

after pouring kerosene on her and they made no attempt to

save her. The contention that the Doctor had stated that

the death was instantaneous and nothing was left for the

appellant and the other family members to save her, is

unacceptable. The normal ordinary human conduct would be

that when one of their inmates, namely Kanchana was in

flames, they would have made every endeavour to save her

life, if it were a case of suicide, and call the people to

come to their rescue to save her life or at least would have

sought first aid from PW-6, who is next door neighbour, to

save the life of the deceased. No such attempt was made nor

514

even attempted. On the other hand the appellant's earliest

attempt was to misguide that Kanchana died due to short

circuit. This attempt was burried fathom deep from the

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evidence of PW.10, Elect. Engr. Then they set up the plea of

suicide. We have Ex. 73, the first information report,

immediately lodged by A-6 with the police. We need not go

into the question as to what extend the admission by a co-

accused would be used against the appellant. Suffice it to

state that in his examination under s.313 Cr. P.C., the

appellant admitted that A-6 stated that the deceased caught

fire while she was handling the wet clothes for drying, due

to short circuit. In Ex-73, it was also stated that this

information was conveyed by the appellant himself. This

admission is not only a relevant fact under s.8 of Evidence

Act as res gestae but a most important circumstance against

the appellant. The indifferent and hard hearted conduct are

also important circumstances. It was also admitted that the

walls in the room became blackish due to smoke. It is

settled law that the conduct of an accused in an offence

previous and subsequent to the crime are relevant facts.

Absence of any attempt to save the life of the deceased

Kanchana while she was burning and was charred to death,

their conduct in not attempting to give any medical aid, the

conduct of the appellant immediately after the deceased was

soaked with kerosene and litting fire after closing the door

A.6 obviously opened it after ensuring that she had died,

the appellant's coming down and standing at the grill gate

on ground floor; the appellant shouted that uncle A.6 should

close down falsely proclaimed that there was short circuit;

implying to scare away the people from attempting to save

Kanchana. These are most telling and relevant crucial facts

apart from repulsive inhuman conduct. The false plea of

suicide is yet another relevant fact. When the death had

occurred in their custody the appellant is under an

obligation in s.313 Cr. P.C. statement at least to give a

plausible explanation denying the prosecution case. These

facts completely are inconsistent with the innocence, but

consistent with the hypothesis that the appellant is a

prime accused in the commission of gruesome murder of his

wife. The circumstantial evidence thus discussed is

complete and consistent with the only conclusion that the

inmates alone committed the crime and the appellant was one

among them.

The evidence of record does establish that more than

one would be participants to murder Kanchana. The absence

of an appeal against acquit-

515

tal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai,

Premlata, Aruna and Rameshwar, all of them or who among them

shared common intention with the appellant is obviated. The

appellant is the principal perpetrator of the crime or one

among the accused that shared common intention to murder

Kanchana. The conviction of the appellant is accordingly

altered to one under s.302 read with s.34 I.P.C. The

appellant is convicted for the murder of his wife, Kanchana

under s.302 read with s.34 I.P.C. and is sentenced to

undergo rigorous imprisonment for life. The conviction

under s.201 is set aside. The judgment and order of the

High Court is confirmed with the above modification. The

appeal is accordingly dismissed.

G.N. Appeal dismissed.

516