1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment reserved on 18.8.2017

Judgment delivered on 03.10.2017

CRA No. 655 of 2009

1. Geetabai Sahu W/o Jeevrakhan Sahu, aged about 47 years,

R/o village Khartora, Thana Palari, District Raipur, CG

---- Appellant

Versus

1.State of Chhattisgarh through Station House Officer, PS Palari,

District Raipur, CG

---- Respondent

CRA No. 672 of 2009

1.Jeevrakhan Sahu S/o Bhagat Sahu, aged about 55 years, R/o

Village Khartora, Thana Palari, District Raipur, CG

---- Appellant

Versus

1.State of Chhattisgarh through Station House Officer, PS Palari,

District Raipur, CG

---- Respondent

AND

CRA No. 814 of 2009

1.Kakeshwar alias Kailash Sahu S/o Jivrakhan aged about 32

years R/o Village Khartora, Thana Palari, District Raipur, CG

---- Appellant

Versus

1.State of Chhattisgarh through Station House Officer, PS Palari,

District Raipur, CG

---- Respondent

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For Appellants :Shri Anil Khare Sr. counsel with Shri

D.K. Gwalare, Advocate

For Respondent/State: Smt. Smita Ghai PL

______________________________________________________________________________________________________

Hon'ble Shri Justice Pritinker Diwaker

Hon'ble Shri Justice R.P. Sharma,

CAV Judgment

Pritinker Diwaker, J

As the aforesaid three Criminal Appeals arise out of the same

judgment dated 25.08.2009 passed by Additional Sessions Judge

Baloda Bazar in Sessions Trial No. 30/2009 convicting

accused/appellant Kakeshwar alias Kailash Sahu under Sections

302, 201; accused Jeevrakhan Sahu and Geeta Bai Sahu u/s 201

IPC, and sentencing accused Kakeshwar alias Kailash Sahu to

undergo imprisonment for life with fine of Rs. 1000/- u/s 302 and

rigorous imprisonment for seven years with fine of Rs. 1000/- u/s

201 and accused Jeevrakhan Sahu and Geeta Bai Sahu to undergo

rigorous imprisonment for seven years with fine of Rs. 1000/- and

rigorous imprisonment for three years with fine of Rs. 1000/-

respectively plus default stipulations, they are disposed of by this

common judgment.

2.Name of the deceased in present case is Priti Sahu wife of

accused/appellant Kakeshwar alias Kailash Sahu whose marriage

was solemnized in May 2003. Priti is said to have died on

21.09.2007 after suffering 100% burn injuries. Accused/appellants

Jeevrakhan Sahu and Geeta Bai Sahu are the father-in-law and

mother-in-law of the deceased respectively. Though Hemant Sahu –

the brother-in-law and Kavita Sahu – the sister-in-law of the

deceased were also made accused, they have been acquitted by

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the Court below of all the charges levelled against them. On

21.09.2007 at 9.15 AM merg intimation Ex. P-30 was recorded at

the instance of accused Jeevrakhan Sahu to the effect that apart

from being an agriculturist he was also having a shop styled as

Bhagat Krishi Kendra which was being looked after by his son

Kakeshwar alias Kailash Sahu. Merg intimation further says that a

day prior to the incident his son had been to Raipur in connection

with his business and on his return at 10 PM all at home took food

and retired to their respective rooms for sleep. Next morning at

about 6 O'clock herdsman namely Parmeshwar Raut came to his

house to untie the cattle but as the door in the veranda was not

opening, he also went there and on seeing the smoke emanating

from the toilet, they tried to open the door but as it was bolted from

inside, accused Kakeshwar alias Kailash Sahu somehow opened it

with the help of a wooden block by that time Priti had died and was

burning. Information to this effect was given to the neighbours.

Thereafter, inquest on the dead-body was conducted on the same

day vide Ex. P-9 followed by postmortem examination carried out

by Dr. Mamta Thakur (PW-3) and Dr. Dhan Singh Dhruv (PW-4) vide

report Ex. P-3. After merg inquiry and receiving the postmortem

report, FIR Ex. P-31 was registered on 01.10.2007 against

accused/appellant Kakeshwar alias Kailash Sahu under Sections

302 and 201 IPC. On completion of investigation, charge sheet was

laid by the police against five persons followed by framing of

charge by the Trial Court against accused/appellant Kakeshwar alias

Kailash Sahu u/s 302, 201 and 498-A whereas against the

remaining ones u/s 201 and 498-A IPC.

3.In order to prove its case the prosecution has examined 22

witnesses in support of its case. Statements of the accused persons

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were also recorded under Section 313 of the Code of Criminal

Procedure in which they denied their guilt and pleaded innocence

and false implication in the case.

4.Accused/appellant Kakeshwar alias Kailash Sahu has taken a

specific defence in his statement recorded under Section 313 of the

Code of Criminal Procedure that after the birth of first girl child he

and the deceased were living happily but at the time when the

second girl child was born deceased became weak. Further defence

taken by him is that as the brother of the deceased died a suicidal

death after jumping in front of the running train, she got mentally

upset and used to keep his photograph in front of her bed. Her

sister, aunt and maternal uncle are also said to have died a suicidal

death by jumping into the well, by setting afire and by consuming

poison respectively. Statement of the accused further says that as

usual the deceased got up early in the morning on the date of

incident also, and that on smoke being noticed by the herdsman

emanating from the toilet which was bolted from inside, he

(accused Kailash) along with his father broke it open with the help

of wooden block and saw his wife burning. At that time, the people

of the vicinity also came there and that on account of the door

being hit by the wooden block, the chain of the door got broken-

out. Thereafter, his father went to the police station, gave

information about the incident to the police and then the parents of

the deceased were called up. He has stated that three years prior

thereto his father-in-law had borrowed Rs. 1,00,000/- from him and

that his wife died only on account of the death of her brother.

5.After hearing the parties the Court below acquitted two

persons namely Kavita and Hemant of all the charges levelled

against them but has convicted and sentenced the

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accused/appellants as mentioned above by the judgment

impugned.

6.Counsel for the accused/appellants submit as under:

(i)That there is no eyewitness to the incident and the conviction

of the accused/appellants is based solely on the circumstantial

evidence, however, even the circumstances relied upon by the

prosecution are not as such to hold the accused/appellants guilty of

commission of the murder of the deceased.

(ii)That the prosecution has utterly failed to prove that the burn

injuries suffered by the deceased are postmortem and since it was

the burden on the prosecution to prove its case beyond all

reasonable doubt, it cannot be shifted on the accused to prove their

innocence.

(iii)That present is not a case where only the deceased and the

accused Kailash were residing in the house but the other accused

persons were there at the relevant time and therefore, it is difficult

to say as to who has committed the murder of the deceased.

(iv)That on 26.9.2007 a letter (Ex. P-32) was written by the

investigating officer (PW-20) to the autopsy surgeon (PW-4)

mentioning therein that though in the postmortem report the burn

injuries have been stated to be postmortem in nature but on spot

inspection being made by him the situation was not found to be as

such. The said letter also carries the reference of spot inspection

being made by FSL expert Dr. Singh according to whom the death

was suicidal in nature. Reply to this letter Ex. P-4 was given by PW-

4 but it did not satisfy the query sought for.

(v)That in the course of investigation the report of the FSL

expert Dr. Singh was though obtained by the prosecution, it has not

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been exhibited may be for the reason that it favoured the

accused/appellants.

(vi))That no evidence has been adduced by the prosecution to

hold the accused/appellants guilty under Section 201 IPC.

(vii)That all the accused persons have been acquitted by the

Court below of the charge under Section 498-A IPC which makes it

clear that no cruelty was meted out to the deceased.

(viii)That once the cruelty part loosens its hold, the motive part

also vanishes as the prosecution has utterly failed to prove by

leading cogent and clinching evidence as to for what the

accused/appellants would have committed the crime in question.

7.On the other hand counsel for the respondent/State supports

the judgment impugned and submits as under:

(i)That in the merg as also in the statement of

accused/appellant Jeevrakhan a false information has been given

that when the door of the toilet was opened, the body was burning

because as per the postmortem report the deceased breathed her

last sometime in the night itself and thereafter she was burnt by

the accused/appellants.

(ii)That a false explanation has been offered by

accused/appellant Kakeshwar alias Kailash Sahu in his statement

recorded under Section 313 of the Code of Criminal Procedure that

the deceased woke up early in the morning.

(iii)That it is not the case of prosecution that the door of the

toilet was bolted from inside rather it is the case of the defence

that as the door of the toilet was bolted from inside, it was broken

open.

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(iv)That had accused/appellant Jeevrakhan seen the deceased in

burning condition, effort would have been made by him and the

people of the vicinity to douse the fire.

(v)That none of the witnesses has stated that when the body

was taken out of the toilet, it was burning because had this been

the position, body could not have been taken out without the fire

being extinguished.

(vi)That the postmortem burn has been duly proved by the

prosecution not only on the basis of the report of the autopsy

surgeon and also the query report given by him but also on the

basis of circumstantial evidence.

(vii)That had deceased put herself afire, she should have

involuntarily moved hither and thither in pain and agony and would

not be lying on her back motionless, but in this case there was no

sign or evidence of any such movement, screaming or shrieking by

her while she was reeling under the terrible shock on being

engulfed in flames.

(viii)That to create a false evidence, the accused/appellants kept

one jerrycan containing half a liter kerosene on the spot without

there being any stains or spots over it whereas the entire room was

filled with black soot and had it been a case of suicide, said

jerrycan also would have been burnt as the intensity of heat was as

such that the toilet seat was damaged but surprisingly the jerrycan

remained intact. According to the State counsel, all this shows that

the jerrycan was kept on the spot after killing the deceased by

pressing her neck and then burning her body.

(ix)That referring to the report of FSL expert Ex. P-32 and

paragraph No. 28 of the judgment impugned, the State counsel

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submits that though one Dr. Singh inspected the spot and found it a

case of suicide but no report to this effect was submitted by him. To

verify this fact, the Court below also called the entire case diary but

unfortunately it could not reflect any such report. State counsel has

thus tried to axe down the argument advanced by the counsel for

the appellants that it was a case of suicide.

(x)That if Dr. Singh had really inspected the spot and given the

report, he should have been summoned by the accused/appellants

to substantiate their defence.

(xi)That likewise the defence should also have examined the

herdsman Parmeshwar Raut who is said to have come to the house

of the accused/appellants early in the morning and saw the smoke

coming out of the toilet, but he has been skipped for the reason

best known to them.

(xii)That whatever explanation the merg contains is not the stand

of the prosecution but the version of accused Jeevrakhan himself

and the Police have just reduced the same to writing.

(xiii)That Dhan Singh (PW-6), Nirmala Sahu (PW-7), Parvati

Choudhary (PW-8), Nand Kishore Sahu (PW-9) and Manjula Sahu

(PW-12) have categorically stated that the deceased was subjected

to cruelty by the accused/appellants and thus motive on their part

to commit murder of the deceased also stands proved.

8.Heard counsel for the parties and perused the evidence

available on record.

9.Tolaram Sahu (PW-2) is the witness to seizure made under Ex.

P-2 who has stated that the door of the toilet was broken open and

the seizure was made thereafter. Dhan Singh (PW-6) – the father of

the deceased has stated that marriage of the deceased was

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solemnized with accused/appellant Kakeshwar alias Kailash Sahu in

May 2003 and that after the death of first born male child two

issues, both female, were born to them. After the death of male

child, the accused persons started harassing the deceased and

using filthy abuses at her. He is also the witness to inquest Ex. P-9.

In paragraph No. 19, this witness has admitted that in the year

2006 his son died after coming in contact with the running train. He

has also admitted that his mother too died by jumping into the well

as she was suffering from stomach-ache. Aunt of the deceased is

also stated to have died after suffering burn injuries. According to

him, when after sonography test the husband of the deceased

came to know about the to-be-born female child for the second

time, he insisted her for abortion but she refused for that and after

delivery he and his family members started harassing her.

Thereafter, he has given number of instances where his daughter

was subjected to cruelty by the accused persons. Nirmala Sahu

(PW-7) – the mother of the deceased has made almost similar

allegations as have been made by her husband (PW-6). Parvati

Choudhary (PW-8) – the neighbour of PW-6 has stated that when

the deceased came to her parents' house, she had informed about

the cruelty meted out to her by the accused persons. Nand Kishore

Sahu (PW-9) – the brother of the deceased has also made similar

statement like PW-6 and PW-7. He has also produced the diary

written by the deceased marked as article “A” and seized vide Ex.

P-13 according to which she was happy with her husband Kailash

but had certain complaint about the attitude of other family

members. Manjula Sahu (PW-12) - the sister of the deceased has

also stated almost the same thing like PW-6, PW-7 and PW-9. Dr.

Mamta Thakur (PW-3) is the witness who conducted postmortem

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examination on the body of the deceased along with Dr. Dhan

Singh Dhruv (PW-4) and gave her report Ex. P-3 which speaks as

under:

“... It is 100% deep burn, eyes closed, burned skin,

tongue protruded, breast burned and evected, ribs both

side burned upto anterior artillery line, lungs exposed,

burned, stomach wall burned and intestine blackening due

to burn, burned genitalia, legs burned deep up to bone,

right side tibia fibula broken, left side only tibia broken,

lateral side muscles are attached slightly. Body was

deeply burned and the skull congested. Ribs burned up to

mid artillery line...”

Cause of death, as opined, was asphyxia and the burn was

postmortem in nature.

She however has stated in her court statement that no symptom

was noticed on the neck of the deceased to show that her neck was

pressed. She has admitted that in the case of suffocation there is

possibility of froth and blood coming out of the mouth and nostrils

but this thing was not mentioned in her report. Though it has been

admitted by this witness that no symptoms of blood or froth were

noticed by her yet she has expressed the possibility of the same, if

any, being burnt and reduced to ashes as the body was 100%

burnt. She has also expressed the possibility of suffocation by the

pillow produced before her by the police. According to her, on

account of the body being burnt 100% it had turned black, stomach

was burnt but the intestines did not come out and were placed in

order, but as the stomach was burnt they were quite visible. Liquid

substance found in the stomach of the deceased is stated to have

been not specified in the report of this witness but chemical

examination thereof was advised. There is also an admission by

this witness that 2-4 minutes after catching fire, one can reach the

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stage of shock resulting in death. According to her, in case of burn

with kerosene there is emission of carbon-monoxide gas which goes

into the lung and blood by respiration process. She has also

clarified that if one respires while burning, the symptoms of that

gas are noticeable in the trachea and lung but all that would not be

there if a dead person is burnt. In paragraph No. 16 this witness has

however admitted that in this case the soots were noticed in the

upper part of the trachea. According to her, the heart being cherry-

red as was stated in the report, was due to burn. She has stated

that if carbon- monoxide gas enters the body by breathing, the

colour of the blood turns cherry-red. Suffocation is also stated to be

the reason for cherry-red colour of the blood. On a question put to

her by the Court below as to on what basis she had opined the burn

being postmortem in nature though according to the police it was a

case of suicide, she has given her answer saying that she had

noticed the soots in the trachea of the deceased and not in any

other part of the body and that on account of deep burn the back

portion turned blueish and tibia and fibula got broken. According to

this witness, on the body part of the deceased which was not burnt,

no redness was found, and that if as a result of burn any redness

(blackness) is there, in that event, the redness become invisible. In

paragraph No. 19 this witness has clarified that though in the query

report she has mentioned the fracture of tibia and fibula of both the

legs whereas in the postmortem report she has mentioned the

fracture of tibia of left leg only but according to her the things

stated in the postmortem report only are correct. She has stated

that a person burning dies due to shock within 2-4 minutes but still

the body continues to burn, such burns after death are called

postmortem burns. She has further stated that mere congestion is

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not a determinative sign of the burns being antemortem or

postmortem in nature but the other symptoms are also taken into

consideration in so doing.

10.Dr. Dhan Singh Dhruv (PW-4) is the witness who also

conducted postmortem on the body of the deceased along with Dr.

Mamta Thakur (PW-3). This witness has stated that in the query

report Ex. P-4 he has clarified that the burn was postmortem in

nature and likewise in Ex. P-5 he has stated that the tibia and fibula

bones were fractured due to burn. Kishore Soni (PW-18) is the

witness who did initial part of the investigation and made seizure of

one jerrycan containing half liter of kerosene, burnt match box and

sticks, burnt clothes of the deceased, ash and wooden block In

paragraph No. 15 he has stated that the wooden block was not

used for opening the door but the door of the toilet was just

knocked with it. This witness is stated to have been informed by the

accused persons that the deceased set herself afire in the toilet

after bolting the door from inside. According to him, it is mentioned

in the statements of the witnesses that the chain of the toilet door

could not be fastened from inside and that during investigation the

chain hanging inside was seized by him and the said seizure memo

was attached with the case diary but being un-necessary was not

enclosed with the charge-sheet. According to this witness, as

planned by the accused persons, the chain was put on the inner

side of the door with the support of a piece of wood when the

matter was under investigation. L.R. Giri (PW-19) is the witness who

recorded merg Ex. P-30. Baldev Singh Thakur (PW-20) is the witness

who recorded FIR Ex. P-31 and sought query report under Ex. P-32

which was given by the doctor (PW-4) marked as Ex. P-4. Rupesh

Kumar Verma (PW-21) is the witness who conducted the inquest,

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and according to him he found the body of the deceased in the

toilet in squatting posture with head leaning forward, right palm

supported against the floor and the left palm having bent

supported against the toilet floor. Body was smelling kerosene and

a jerrycan containing half a liter kerosene and the burnt match

sticks were also found there which were seized by PW-18. Dr.

Sunanda Dhenge (PW-22) though was not cited as a witness

initially, on application being moved by the prosecution under

Section 311 of the Code of Criminal Procedure she was examined

as its witness. She has proved her report Ex. P-34 dated 27.11.2007

and stating that burn of the deceased is postmortem in nature but

the cause of death required some more information from the

doctors regarding injury on tibia and fibula. She has further stated

that the death of the deceased took place somewhere else but she

was burnt in the toilet. According to her, looking to the shattered

toilet seat and smoke it is sure that she was shifted to the toilet,

kept with her back against the wall, inflammable liquid – kerosene

or diesel which can be ascertained from the report of FSL, was

poured on her and then she was put on fire. She has also stated

that the photographs revealed that the toilet walls were covered

with smoke but surprisingly the container kept there was as it is

without any black spots and this shows that it was kept there

afterwards otherwise it would have been affected with the flames

and smoke. Her report further says that though the dimension of

the door and the toilet was not disclosed to her yet it is not possible

for one person to carry the dead-body in such a congested place.

Further, according to the report, the dead-body being in the sitting

posture was not possible unless something like iron rod or bamboo

was used before burning her. It however required exact

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measurement of the spot. Moreover, something like bamboo must

have been used for deflection of body for burning the posterior part

otherwise it would have remained unburnt or half burnt. According

to the report, the wall behind the body shows the patches of skin of

the back, and all this shows that more than one person were

involved in the crime in question.

11.It is relevant to note that this report has been given by this

witness on the request of father of the deceased (PW-6) and that

too on the basis of photograph of the deceased and the spot. This

report was given on 27.11.2007 and by that time the charge-sheet

was already filed. We are conscious of the fact that this report was

given on the basis of photographs of the deceased and the spot

and that the conviction of the accused/appellants cannot be based

thereupon, but something meaningful can definitely be culled out

of it necessary to draw a just and reasonable conclusion.

12.Ex. P-11 is the memorandum of accused Kakeshwar alias

Kailash Sahu wherein it is stated that he had pressed the nose and

mouth of the deceased with the help of a pillow and after a while

when she died, he shifted her to the toilet, made her sit against the

wall, poured kerosene or the diesel from the jerrycan and set her on

fire. Based on this memorandum, one pillow was seized under Ex.

P-14 but there is no evidence to show that the said pillow was used

in the commission of crime in question.

13.Now to hold the guilt or innocence of the accused/appellants

in the crime in question the most crucial question is whether

medical evidence of the doctors conducting necropsy on the dead-

body (PW-3 and PW-4 herein) is reliable and acceptable and

whether there is any probability of suicide? Determination of such

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question needs recapitulation of the medical evidence though at

the cost of repetition.

14.Postmortem report Ex. P-3 submitted by Dr. Mamta Thakur

(PW-3) and Dhan Singh Dhruv (PW-4) jointly shows the body of the

deceased to have 100% deep burn, eyes were closed, skin was

burnt, tongue was protruded, breasts were burnt and evected, both

ribs were burnt, lungs were exposed and burnt, stomach wall,

genitalia and legs up to the bone were burnt and intestines got

blackened due to burn, burned deep up to bone, right side tibia

fibula and left side tibia were broken, left side only tibia broken and

lateral side muscles were attached slightly. As per this report cause

of death was asphyxia and the burn was postmortem in nature.

Though the doctor (PW-3) has admitted that she did not notice any

symptom indicative of neck of the deceased being pressed yet at

the same time she has expressed the possibility of suffocation with

the help of pillow produced before her by the police for

examination. Further, in support of her opinion about asphyxia to

be the cause of death she has stated that on account of pressure

employed on mouth and nostrils asphyxial death can be possible.

According to this witness, on account of burn the colour of heart

had turned cherry-red. Such discoloration of blood, according to

her, could also be there if one breathes in carbon- monoxide gas or

undergoes some suffocation.

15.Let us first consider whether the factual findings at the

postmortem examination of the deceased and the evidence of

doctors (PW-3 and PW-4) are supported by medical jurisprudence.

Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth

Edition 1984 by Keith Mant, Vol. I stated at page 282 that asphyxia

being a condition in which there is an inadequate supply of oxygen

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to the tissues. It may be defined as a state in which the body lacks

oxygen because of some mechanical interference with the process

of breathing. At page 283 it is further stated that cyanosis indicates

the blue colour of the skin, mucous membranes and internal

organs, notably spleen, liver and kidneys. The capillary dilation that

accompanies a reduction in oxygen tension promotes stasis and

therefore a vicious cycle of sub-oxygenation of the blood

commences. The return of blood to the heart is diminished. The

resultant impaired oxygenation leads to further capillary dilation,

further stasis, with deepening cyanosis – probably results from a

combination of stasis and hypoxia. Fluid exudes into the tissue

spaces.

16.At page 286 it is also stated of the distinction between

suffocation and strangulation that conditions associated with

mechanical asphyxia include suffocation where the interference

with the process of breathing is at the level of the nose or mouth;

strangulation where there is compression of the neck, either by (a)

the human hand (manual strangulation or throttling); (b) a ligature.

In page 287 it is stated that the head and face may show intense

congestion and cyanosis with numerous petechiae. Blood exudes

from the mouth and nose. Blood tinged frothy fluid is present in the

air passages.

17.Here the doctor (PW-3) has admitted in her evidence that in

the event of suffocation froth and blood may come out of the

mouth and nostrils but in the case in hand no such thing came to

her notice. She however has stated that even if such froth and

blood came out of the mouth and nostril of the deceased, the same

might have been burnt and reduced to ashes. Though this witness

is stated to have noticed soots in the trachea, it was only on the

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upper part and it had not reached up to the lower part. This apart,

fracture on tibia and fibula of the deceased was also noticed by the

autopsy surgeon which could be on account of exposure of the

body to intense heat and handling the body while being taken out

of the toilet and then shifted to mortuary for autopsy. Likewise,

discoloration of blood as opined by the autopsy surgeons is possible

in the case of asphyxia, be it is because of strangulation,

suffocation etc. Medical evidence also speaks of suffocation with

the help of pillow seized by the police to be one of the causes

leading to the death of the victim. The symptoms detailed in the

postmortem report opining the burns to be postmortem in nature

also get re-affirmation from the query report Ex. P-4. Report of the

Forensic Expert Ex. P-34 though obtained on the request of the

father of the deceased, also states the burns suffered by the

deceased to be postmortem in nature.

18.Further, the absence of burn on the back of the deceased

even after being burnt 100% also indicates that she could not have

committed suicide by pouring kerosene of her own and then setting

herself afire. Had she herself done so, the back portion could not

have remained unburnt. Furthermore, the victim inhaling smoke

also vomits presumably due to the bouts of coughing and

regurgitation of stomach contents mixed with the soot may be

found in the smaller bronchi, in the depths of lungs. However, in

this case PW-3 and PW-4 have asserted that there was no

symptoms of vomiting at all. These two witnesses have however

expressed the possibility of the vomits being burnt in the intense

fire, even if present. In other words no sign of vomit was found by

these witnesses, which lends support to the case of the prosecution

that the burning was after the death of the victim. In fact the

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opinion in Taylor's Medical Jurisprudence is rather in support of the

case of the prosecution than that of the defence, which reads as

under:

“Not uncommonly the victim who inhales smoke also

vomits and inhales some vomit, presumably due to bouts

of coughing, and plugs of regurgitated stomach contents

mixed with soot may be found in the smaller bronchi, in

the depths of the lungs.”

19.Dealing with a case having similar circumstances and taking

support from the Taylor's Medical Jurisprudence it has been held by

the Apex Court in the matter of State of UP v. Dr. Ravindra

Prakash Mittal reported in AIR 1992 SC 2045 as under:

32.In the present case, PW-1 has asserted that there

was no symptom of vomiting at all, which fact lends

assurance to the prosecution case that the burning was

after the death of the victim...

34...There are two important features appearing from the

medical evidence appearing from the medical evidence

which would go in support of our conclusion : (1) that the

dead body was found inside the scorched cot frame, (2)

the back portion of the body was not burnt indicating that

the deceased could not have poured the kerosene over

her body. Further, had the deceased put her to death by

burning herself she should have involuntarily moved

hither and thither under the agony, and would not be

lying on her back motionless. A careful scrutiny reveals

that there was no sign of involuntary movement or any

evidence of screaming and shrieking by the victim while

she was reeling under the terrible shock and agony on

being engulfed in flames which are not the normal

symptoms in a case of this nature, leaving apart the

question of homicide or suicide. The traces of the

barbiturates in the visra does not in any way militate

against the prosecution and from that no adverse

inference could be drawn.”

20.Let us now advert to the ocular evidence in respect of other

surrounding circumstances so as to formulate an opinion whether

the burns on the body of the deceased were ante-mortem or

postmortem in nature.

21.From the record it is revealed that a day prior to the incident

i.e. on 20.9.2007 accused Kakeshwar alias Kailash Sahu – the

19

husband of the deceased returned from Raipur at 10 PM and after

taking dinner he retired to his room for sleep along with his wife

and on 21.9.2007 at about 6 AM herdsman Parmeshwar Raut saw

smoke emanating from the toilet. Thereafter, when accused

Kakeshwar along with other family members went there, the door

of the toilet being bolted from inside was broken open with the help

of a wooden block the deceased was found dead but body was still

burning. How can it be that all this happened without being within

the personal knowledge of accused Kakeshwar – the husband who

had spent the whole night with her in the same room. Even the

other accused persons who were sleeping in the same house did

not come forward with any explanation as to how the death of the

deceased took place particularly when they all including the

deceased took dinner together. However, no explanation of any sort

has come from them in this respect. Since such crimes are

generally committed in complete secrecy within the four walls of

the house, it becomes next to impossible for the prosecution to

collect each and every evidence to reach the truth. Even the people

of vicinity whose evidence may lend some assistance generally

show their reluctance to stand by the prosecution, may be, to avoid

the legal intricacies and antagonistic terms with the neighbours.

Thus Keeping in mind all these crucial probabilities, the pristine rule

that the burden of proof is on the prosecution to prove the guilt of

the accused should not be taken as a fossilised doctrine as though

it admits no process of intelligent reasoning. The doctrine of

presumption is not alien to the above rule, nor would it impair the

temper of the rule. On the other hand, if the traditional rule relating

to burden of proof on the prosecution is allowed to be wrapped in

the pedantic coverage, the offenders in serious offences would be

20

the major beneficaries and the society would be the casualty. While

expounding the obligation of the accused to prove his innocence

and not throwing entire burden of doing so on the prosecution the

Apex Court has held in the matter of Trimukh Maroti Kirkan v.

State of Maharashtra (2006) 10 SCC 681 as under:

“13.The demand for dowry or money from the parents

of the bride has shown a phenomenal increase in last few

years. Cases are frequently coming before the Courts,

where the husband or in-laws have gone to the extent of

killing the bride if the demand is not met. These crimes

are generally committed in complete secrecy inside the

house and it becomes very difficult for the prosecution to

lead evidence. No member of the family, even if he is a

witness of the crime, would come forward to depose

against another family member. The neighbours, whose

evidence may be of some assistance, are generally

reluctant to depose in Court as they want to keep aloof

and do not want to antagonize a neighbourhood family.

The parents or other family members of the bride being

away from the scene of commission of crime are not in a

position to give direct evidence which may inculpate the

real accused except regarding the demand of money or

dowry and harassment caused to the bride. But, it does

not mean that a crime committed in secrecy or inside the

house should go unpunished.

14. If an offence takes place inside the privacy of a house

and in such circumstances where the assailants have all

the opportunity to plan and commit the offence at the

time and in circumstances of their choice, it will be

extremely difficult for the prosecution to lead evidence to

establish the guilt of the accused if the strict principle of

circumstantial evidence, as noticed above, is insisted

upon by the Courts. A Judge does not preside over a

criminal trial merely to see that no innocent man is

punished. A Judge also presides to see that a guilty man

does not escape. Both are public duties. (See Stirland v.

Director of Public Prosecution 1944 AC 315 quoted with

approval by Arijit Pasayat, J. in State of Punjab vs. Karnail

Singh (2003) 11 SCC 271). The law does not enjoin a

duty on the prosecution to lead evidence of such

character which is almost impossible to be led or at any

rate extremely difficult to be led. The duty on the

prosecution is to lead such evidence which it is capable

of leading, having regard to the facts and circumstances

of the case. Here it is necessary to keep in mind Section

106 of the Evidence Act which says that when any fact is

especially within the knowledge of any person, the

21

burden of proving that fact is upon him. Illustration (b)

appended to this section throws some light on the

content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without

ticket. The burden of proving that he had a ticket is on

him."

15.Where an offence like murder is committed in

secrecy inside a house, the initial burden to establish the

case would undoubtedly be upon the prosecution, but

the nature and amount of evidence to be led by it to

establish the charge cannot be of the same degree as is

required in other cases of circumstantial evidence. The

burden would be of a comparatively lighter character. In

view of Section 106 of the Evidence Act there will be a

corresponding burden on the inmates of the house to

give a cogent explanation as to how the crime was

committed. The inmates of the house cannot get away

by simply keeping quiet and offering no explanation on

the supposed premise that the burden to establish its

case lies entirely upon the prosecution and there is no

duty at all on an accused to offer any explanation.

20.In Ram Gulam Chaudhary & Ors. v. Sate of Bihar

(2001) 8 SCC 311, the accused after brutally assaulting a

boy carried him away and thereafter the boy was not

seen alive nor his body was found. The accused,

however, offered no explanation as to what they did

after they took away the boy. It was held that for the

absence of any explanation from the side of the accused

about the boy, there was every justification for drawing

an inference that they have murdered the boy. It was

further observed that even though Section 106 of the

Evidence Act may not be intended to relieve the

prosecution of its burden to prove the guilt of the

accused beyond reasonable doubt, but the section would

apply to cases like the present, where the prosecution

has succeeded in proving facts from which a reasonable

inference can be drawn regarding death. The accused by

virtue of their special knowledge must offer an

explanation which might lead the Court to draw a

different inference.

21.In a case based on circumstantial evidence where

no eyewitness account is available, there is another

principle of law which must be kept in mind. The

principle is that when an incriminating circumstance is

put to the accused and the said accused offers no

explanation or offers an explanation which is found to be

untrue, then the same becomes an additional link in the

chain of circumstances to make it complete. This view

has been taken in a catena of decisions of this Court.

[See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679

(para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR

1992 SC 2045 (para 40); State of Maharashtra v. Suresh

22

(2000) 1 SCC 471 (para 27); Ganesh Lal v. State of

Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand

v. State of M.P. (1995) 3 SCC 574 (para 4)].

22. Where an accused is alleged to have committed the

murder of his wife and the prosecution succeeds in

leading evidence to show that shortly before the

commission of crime they were seen together or the

offence takes placed in the dwelling home where the

husband also normally resided, it has been consistently

held that if the accused does not offer any explanation

how the wife received injuries or offers an explanation

which is found to be false, it is a strong circumstance

which indicates that he is responsible for commission of

the crime. In Nika Ram v. State of Himachal Pradesh AIR

1972 SC 2077 it was observed that the fact that the

accused alone was with his wife in the house when she

was murdered there with 'khokhri' and the fact that the

relations of the accused with her were strained would, in

the absence of any cogent explanation by him, point to

his guilt. In Ganeshlal v. State of Maharashtra (1992) 3

SCC 106 the appellant was prosecuted for the murder of

his wife which took place inside his house. It was

observed that when the death had occurred in his

custody, the appellant is under an obligation to give a

plausible explanation for the cause of her death in his

statement under Section 313 Cr.P.C. The mere denial of

the prosecution case coupled with absence of any

explanation were held to be inconsistent with the

innocence of the accused, but consistent with the

hypothesis that the appellant is a prime accused in the

commission of murder of his wife. In State of U.P. v. Dr.

Ravindra Prakash Mittal AIR 1992 SC 2045 the medical

evidence disclosed that the wife died of strangulation

during late night hours or early morning and her body

was set on fire after sprinkling kerosene. The defence of

the husband was that wife had committed suicide by

burning herself and that he was not at home at that

time. The letters written by the wife to her relatives

showed that the husband ill-treated her and their

relations were strained and further the evidence showed

that both of them were in one room in the night. It was

held that the chain of circumstances was complete and it

was the husband who committed the murder of his wife

by strangulation and accordingly this Court reversed the

judgment of the High Court acquitting the accused and

convicted him under Section 302 IPC. In State of Tamil

Nadu v. Rajendran (1999) 8 SCC 679 the wife was found

dead in a hut which had caught fire. The evidence

showed that the accused and his wife were seen

together in the hut at about 9.00 p.m. and the accused

came out in the morning through the roof when the hut

had caught fire. His explanation was that it was a case of

accidental fire which resulted in the death of his wife and

a daughter. The medical evidence showed that the wife

died due to asphyxia as a result of strangulation and not

on account of burn injuries. It was held that there cannot

be any hesitation to come to the conclusion that it was

23

the accused (husband) who was the perpetrator of the

crime.”

22.Similar view has been taken by the Apex Court in the matter

of State of WB v. MIR Mohammad Omar and others reported

in (2000) 8 SCC 382 where it has been held as under:

“33.Presumption of fact is an inference as to the

existence of one fact from the existence of some other

facts, unless the truth of such inference is disproved.

Presumption of fact is a rule in law of evidence that a fact

otherwise doubtful may be inferred from certain other

proved facts. When inferring the existence of a fact from

other set of proved facts, the court exercises a process of

reasoning and reach a logical conclusion as the most

probable position. The above principle has gained

legislative recognition in India when Section 114 is

incorporated in the Evidence Act. It empowers the court to

presume the existence of any fact which it thinks likely to

have happened. In that process court shall have regard to

the common course of natural events, human conduct

etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the court

that Mahesh was abducted by the accused and they took

him out of that area, the accused alone knew what

happened to him until he was with them. If he was found

murdered within a short time after the abduction the

permitted reasoning process would enable the court to

draw the presumption that the accused have murdered

him. Such inference can be disrupted if accused would tell

the court what else happened to Mahesh at least until he

was in their custody.

35. During arguments we put a question to learned

senior counsel for the respondents based on a

hypothetical illustration. If a boy is kidnapped from the

lawful custody of his guardian in the sight of his people

and the kidnappers disappeared with the prey, what

would be the normal inference if the mangled dead body

of the boy is recovered within a couple of hours from

elsewhere. The query was made whether upon proof of

the above facts an inference could be drawn that the

kidnappers would have killed the boy. Learned senior

counsel finally conceded that in such a case the inference

is reasonably certain that the boy was killed by the

kidnappers unless they explain otherwise.

36. In this context we may profitably utilise the legal

principle embodied in Section 106 of the Evidence Act

which reads as follows: "When any fact is especially within

the knowledge of any person, the burden of proving that

24

fact is upon him."

37. The section is not intended to relieve the

prosecution of its burden to prove the guilt of the accused

beyond reasonable doubt. But the Section would apply to

cases where the prosecution has succeeded in proving

facts from which a reasonable inference can be drawn

regarding the existence of certain other facts, unless the

accused by virtue of his special knowledge regarding such

facts, failed to offer any explanation which might drive the

court to draw a different inference.”

23. Evidence of father of the deceased makes it clear that after

the death of male child, two female children were born to deceased

through accused Kakeshwar and that since thereafter the accused

persons started misbehaving with the deceased. Evidence further

goes to show that before the birth of second female child, accused

Kakeshwar made her undergo sonography test and after coming to

know about the to-be-born female child, he insisted for abortion

which was refused by the deceased. Thereafter, number of

instances have been referred to by this witness where the

deceased was subjected to cruelty by the accused persons.

Harassment at the hands of the accused persons has come from

other witnesses being (PW-7, PW-8 and PW-9) also. In these

circumstances, a presumption can safely be drawn that after the

death of first male child and birth of first female child, the accused-

husband might be aspiring for a male child and it is for that he got

done the sonographic sex determination test of the deceased and

on coming to know the things going against his wishes, he nurtured

the opinion of getting rid of her for ever. Though a letter said to

have been written by the deceased (Article-A) has been produced

by the defence to show the relations between her and the accused-

husband were cordial cannot be significantly related to the present

incident as it was written three years prior thereto. The bitterness,

as per the evidence of the witnesses, between the two appears to

25

have crept in only after the detection of to-be-born female child on

radiological examination of the deceased and the subsequent

refusal of the demand for its medical termination made to her by

the accused-husband.

24.The argument advanced by the counsel for the appellants

that on account of untimely accidental demise of her brother,

grandmother and aunt the deceased used to remain depressed and

ultimately decided to end her life also, appears to be absurd

because she was a fully grown up lady and must have already

come across several ups and downs here and there and therefore,

could not have lost her mental equilibrium by such things putting

her smooth and comfortable life at stake, if it was really so.

25.Evidence further indicates that at the time of inquest, the

dead-body was found in the toilet in squatting posture with head

leaning forward with her right palm supported against the floor and

the left one being bent and supported against the toilet floor. This

circumstance also dissuades this Court from accepting the

argument of the counsel for the accused/appellants that it is a case

of suicide. It is for the reason that if the deceased set herself afire

after pouring kerosene, immediately after being in flames she must

have run for safety hither and thither crying for help and would not

have permitted her incineration till death without reacting in any

such manner. That apart, from the inquest report it is further clear

that a jerrycan containing half a liter kerosene and the burnt match

sticks were also found on the spot. It appears a bitter pill to swallow

for this Court that in a situation where on account of the raging

flames the deceased suffered 100% burns but yet the jerrycan that

too containing half a liter kerosene, which otherwise should have

26

been reduced to an unshaped lump, remained intact. This

obviously shows that the said jerrycan was kept on the spot after

incineration of the deceased just to paint a picture of suicide.

26.This Court is not in agreement with the argument of the

counsel for the accused/appellants that since the accused persons

have been acquitted of the charge under Section 498-A IPC based

on the same set of evidence, they are entitled for acquittal of the

charge under Section 302 IPC also. Since the evidence in relating to

cruelty or harassment with a view to coercing her or any person

related to her to meet any unlawful demand for any property or

valuable security or on account of failure by her or any person

related to her to meet such demand might not have been sufficient,

they came to be acquitted of the said charge. However, it does not

mean that the charge under Section 302 IPC is also not made out

against the accused/appellants for the simple reason that both

these offences are distinct in nature and the prosecution has

adduced cogent and clinching evidence to prove their guilt of killing

the deceased. Defence has not even bothered to examine Dr. Singh

who is said to have inspected the spot and given his report that it

was a case of suicide. The herdsman who first saw the smoke

coming out of the toilet could have been of some help to the

defence but he too has not been examined.

27.Considering the evidence adduced by the prosecution as also

the defence, we are of the considered opinion that in the given

facts and circumstances of the case, there is no reason for us to

draw an opinion other than the one given by the doctor showing

the burn as postmortem in nature on the basis of which the finding

to that effect has been recorded by the Court below.

27

28.Thus in view of the evidence adduced by the prosecution,

medical and ocular, this Court is of the opinion that the deceased

was first killed and then consigned to the flames in a bid to

eliminate evidence. This was done by none else but accused-

husband Kakeshwar alias Kailash Sahu. Evidence is however not

there to the effect that the other two accused persons namely

Geeta Bai Sahu and Jeevrakhan Sahu were also instrumental in

executing the act they have been convicted for by the Court below

because in the previous night they were elsewhere though in the

same precinct whereas the deceased spent the whole night, asleep

or awake, in another room along with her husband. They could

therefore not be aware as to what went on between their son and

daughter-in-law in the preceding hideous hours. Thus, giving

benefit of doubt, inculpation of the in-laws (Geeta Bai Sahu and

Jeevrakhan Sahu) in the offence u/s 201 IPC is liable to be set aside.

29.As a net conclusion, Criminal Appeal No. 814/2009 preferred

by accused Kakeshwar alias Kailash Sahu is dismissed with the

affirmation of the judgment impugned as far as it relates to him.

Being already behind the bars, no order to catch and dispatch him

inside is necessary. Criminal Appeal Nos. 655/2009 and 672/2009

preferred by Geetabai Sahu and Jeevrakhan Sahu are however

allowed and the judgment impugned pertaining to them is set

aside. Acquittal of the charge u/s 201 IPC to follow. They are

already out on bail and hence no order is needed to set them free

etc.

Sd/- Sd/-

(Pritinker Diwaker) (R.P. Sharma)

Judge Judge

Jyotishi