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CASE NO.:

Appeal (crl.) 298 of 1997

PETITIONER:

Narendra Singh & Anr.

RESPONDENT:

State of M.P.

DATE OF JUDGMENT: 12/04/2004

BENCH:

Y.K. Sabharwal & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The Appellant No. 1 herein by reason of the impugned

judgment reversing a judgment of acquittal passed by learned

Sessions Judge, Dhar on 6.1.1984 was found guilty of

commission of an offence under Section 302 of the Indian

Penal Code for having committed murder of Bimlabai by

throttling on 6.5.1983 at about 5.30 p.m. at Dhanmandi, Dhar

at house No. 16, Dhanmandi, Dhar as also under Section 201

of Indian Penal Code for causing disappearance of evidence

by setting her on fire after causing her death; whereas the

appellant No. 2 was found guilty of commission of an offence

under Section 201 of the Indian Penal Code

The relationship between the appellants herein are son

and mother. Along with them, the husband of appellant No. 2

Hari Singh and their daughter Kusum were chargesheeted for

commission of murder of the aforementioned Bimlabai.

The deceased Bimlabai was married to the appellant No.

1 herein on or about 21.4.1982 in relation whereto the

betrothal ceremony was held in December, 1980. The

appellant No. 1 after the said betrothal ceremony was

appointed as a bus conductor by the Madhya Pradesh State

Road Transport Corporation. About 4 and = months

thereafter, he was suspended questioning which he filed a

civil suit.

At the relevant time, the family members of the

appellants were living as tenants in a portion in the upper

storey of the house of Bansidhar, P.W.1. Daulatram, another

tenant, used to reside in the front portion in the first

storey in the same house. One Moi Babu was a tenant on the

front portion in the ground floor whereas Omprakash Shukla

was tenant in the rear portion thereof.

Allegedly a demand was made by the accused persons for

a wrist watch and a chain of gold at the time of marriage to

which Ramsingh, PW5 (brother of the deceased) expressed his

inability. Sometimes later, the said demand was reiterated.

The appellant No. 1 was eventually dismissed from services

whereafter financial assistance was allegedly given to him

by Ram Singh. The marriage of younger brother of Ramsingh,

Rajendra was settled in December, 1982. His Tika ceremony

was to take place on 24.4.1983 at Indore. Ramsingh came to

the house of the accused persons to invite them and take

Bimla with him to his house. For the purpose of fighting

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out a suit as regard the termination of his service,

Narendra allegedly asked for a sum of Rs. 2000/- from

Ramsingh wherefor he expressed his inability saying as his

brother is going to be married after one month he was not in

a position to spare the amount. Allegedly, thereupon

Narendrasingh and Harisingh threatened stating "You will

have to give us an amount of Rs. 2000/- otherwise we will

not send Bimla to attend the marriage ceremony of her

brother Raju at Indore."

The incident in question took place on 6.5.1983. It is

alleged that on 6.5.1983 at about 5 p.m. Asha, PW7 (daughter

of Daulatram) saw signs of fire coming out from the house

occupied by the accused persons. PW2 Ramkunwar Bai also

noticed the fire. They gave a call to the appellants but

none replied. PW-10 Kusha Bhau and others also went to the

house to extinguish fire. Thereafter the fire brigade as

also the police reached at the place of occurrence. The

dead body of Bimlabai was found lying in the kitchen of the

house in burnt condition. A jerry can, its cover and a

match box were also found near the dead body in the kitchen.

The autopsy on the dead body of Bimlabai was conducted at

about 8.15 p.m. on 7.5.1983.

Ram Singh, the informant came to learn about the said

incident on the next day. In relation to the said incident

a First Information Report was lodged by Ram Singh PW-5 at

6.30 p.m. on 7.5.1983 in the Police Station Dhar. The

appellants herein with Harisingh and Kusum were

chargesheeted under Sections 302 and 201 read with Section

34 of the Indian Penal Code. The case thereafter was

committed to the Court of Sessions. Before the learned

Sessions Judge, 17 witnesses were examined on behalf of the

prosecution; whereas 6 persons were examined as court

witnesses. A plea of alibi was put forth by the appellants

herein in the trial stating that the appellant No. 1 was

attending a marriage ceremony in the house of Illias Khan,

CW-3. The appellant No. 2 also raised a plea of alibi.

PW-1 Banshidhar is the owner of the house. PW-2

Ramkunwar Bai is an adjacent neighbour of the appellants.

PW-3 Harak Chand Mittal is an advocate, who lives at some

distance from the house of accused persons, had informed the

police about fire on phone. PW-4 Om Prakash is also a

neighbour. He was a witness to the inquest report, site

plan and seizure memo. PW-5 Ramsingh is the first

informant. PW-6 and CW-1 are the doctors who conducted the

post mortem examination over the dead body of Bimlabai.

PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab

Singh are the other witnesses. PW-12 Bhagwanti Bai is the

sister of the deceased. The court witnesses were not

examined by the prosecution and all of them for some reason

or the other were examined as court witnesses. CW2 to CW6

sought to prove the plea of alibi of the appellants.

The Learned Sessions Judge disbelieved the prosecution

case and recorded a judgment of acquittal inter alia on the

ground that as admittedly the door of the kitchen had to be

broken open; and as the death of Bimlabai presumably took

place in between 4.15 p.m. and 5.30 p.m., it was impossible

for the assassin to jump from the window in the lane.

Furthermore, as no person has seen the assassin, possibly it

was a case of suicide. Assuming that it was a case of

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murder, the learned Sessions Judge wondered, keeping in view

the place of occurrence vis-`-vis the points of possible

entries thereto, as to how the assassin of Bimla made his

exodus from that room.

The learned Sessions Judge did not fully rely upon the

post mortem report having regard to certain cuttings and

over-writings therein. The learned Sessions Judge opined

that although no mala fide intention could be attributed to

the doctors, there existed a possibility that they committed

some mistakes in recording their opinion as regard the cause

of death. It was further held that the plea of alibi of the

accused persons could neither be ignored nor said to be

unreliable.

The learned Sessions Judge also disbelieved the

evidence of PW-1 Bansidhar holding that from his evidence

the presence of the appellants at the place of occurrence at

the relevant time had not been proved.

The State preferred an appeal thereagainst. The said

appeal was heard by a Division Bench of the High Court

comprising Justice A.B. Qureshi and Justice V.D. Gyani.

Whereas Qureshi, J. despite holding that the death was

homicidal in nature, was of the opinion that the guilt of

the accused persons was not brought home; whereas Gyani, J.

allowed the State appeal holding the appellants guilty under

Sections 302/34 and Section 201 of the Indian Penal Code and

sentenced them to undergo life imprisonment. In view of the

difference of opinion the matter was assigned to Chitre, J.

by the Chief Justice of the High Court. By reason of the

impugned judgment dated 20th September, 1996 aggreeing

with the judgment of Gyani, J. the learned Judge held the

appellant No. 1 to be guilty for commission of an offence

under Section 302 read with 201 of the Indian Penal Code and

the appellant No. 2 to be guilty for commission of an

offence under Section 201 of the Indian Penal Code and

sentenced her to undergo three years of rigorous

imprisonment. A judgment of acquittal was recorded in

favour of Harisingh whereas Kusum was although convicted

for commission of an offence under Section 201 of the Indian

Penal Code but was sentenced to the period already

undergone.

It was held:

"72. Now, therefore, what comes out in

the case is that:

(i) there was a demand of dowry

which was not fulfilled.

Narendrasingh was annoyed.

Thus, there was motive for

murder.

(ii) Vimlabai met homicidal death by

throttling and thereafter was

set to fire. The setting of

fire must have been with intent

to cause disappearance of

evidence for screening the

offender;

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(iii) At least three persons, i.e.,

Narendrasingh, Gulbadanbai and

Kusum were present in the house

in the after noon and till the

body was found inside the

kitchen room. Had the murderer

been anybody else Vimlabai must

have raised alarm. Persons in

the family including these

accused persons could have also

raised alarm and caused

resistance to such murder;

(iv) As no alarm was raised by

Vimlabai, this goes to show that

the person (murderer) must have

been close relation of her and

in all probability the husband.

A Hindu wife while assaulted by

her husband would not cause

resistance. Sometimes even

alarms are not raised unless the

injuries caused are very painful

and serious."

Mr. Sushil Kumar Jain, learned counsel appearing on

behalf of the appellants inter alia would submit that the

preponderance of evidence not only show that the post mortem

report should not have been relied upon by the High Court

having regard to the fact that the burns have been held to

be ante mortem in nature although the cause of death was

said to be asphyxia. It was pointed out that the findings

of the High Court to the effect that the death was a

homicidal one by asphyxia was based on two factors:

(i) no carbon particles were found in the respiratory

tract or the trachea, and

(ii) 200 CC blood was found in front of pharynx and in

the part of tracheal and sub-surrounding

subcutaneous tissues.

The learned counsel would urge that the carbon

particles cannot be seen with open eyes particularly when

there was blood and as such it was necessary to remove the

blood by opening the skull or through legs.

The learned counsel would further submit that presence

of accused at the time of death cannot be said to have been

proved by the prosecution as the court witnesses

categorically stated about their presence at the relevant

time at the house of Illias Khan. It was urged that the

evidences of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7

Asha should not have been relied upon by the High Court as

regard presence of the appellant No. 1 having regard to the

improvement/omission/ contradiction contained in their

statements. The learned counsel would submit that PW-1 has

been contradicted in material particulars by Inder Dhobi CW-

5 whose presence had not been disputed by the prosecution

witness. It was pointed out that the statements of the

witnesses examined on behalf of the prosecution were

recorded on the 2nd or 3rd day of the occurrence and thus

the same could not have been relied upon. Our attention had

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also been drawn to the fact that according to PW-1 himself

he had reached his house about 5.15 p.m. whereafter he went

to latrine and only after his coming out therefrom, he

noticed the fire, washed his hands, climbed on the top of

shed when Nadkar and Inder Dhobi were also present; and in

that view of the matter he cannot be a witness as regard the

first part of the incident as by that time, even the doors

of the kitchen had also been broken open and people had

already arrived in large number. It was further contended

that it was admitted by PW-1 that he came to know about the

death of Bimlabai from Shri Mittal, which fact also makes

his statement doubtful.

As regard the finding of the High Court that Bimlabai

died in between 3.00 p.m. to 5.30 p.m., Mr. Jain would point

out that the evidence of PW-1 Banshidhar, PW-2 Ramkunwar Bai

and PW-7 Asha would categorically show that the incident

must have taken place after 5.00 p.m. The learned counsel

laid emphasis on the fact that admittedly water in the tap

comes at 5.00 p.m. whereafter only the fire was noticed by

the witnesses examined by the prosecution.

The finding of the High Court to the effect that the

appellant No. 1 after commission of the offence locked the

room inside and slipped out of the window, Mr. Jain would

urge, is untenable keeping in view the height of the window,

the size of the room being 5'x 6' as also the fact that some

people had already gathered near the water tap and, thus, it

would be impossible for anyone to jump from the open space

without being noticed and that too remaining unhurt.

A judgment of acquittal without any cogent and

sufficient reasons should not be reversed, Mr. Jain would

argue.

The learned counsel would further submit that the

prosecution has not been able to prove any motive for

commission of the offence as the prosecution witnesses

accepted that the relationship between the husband and wife

was cordial and only because a sum of Rs. 2000/- was asked

for the same by itself could not be the motive on the part

of the accused persons, for commission of the offence.

Ms. Vibha Datta Makhija, learned counsel appearing on

behalf of the State, on the other hand, would support the

judgment of the High Court inter alia contending that;

whereas the judgment of the learned Sessions Judge was based

on surmises and conjectures, the High Court assigned

sufficient and cogent reasons for arriving at its findings.

It was pointed out that in a case like the present one, the

Court should consider the matter having regard to three

scenarios in mind, viz.:

(i) Suicide committed by Bimlabai;

(ii) Murder by intruder; and

(iii) Murder by the accused;

and arriving at a finding upon excluding the one or the

other possibility.

The learned counsel would contend that the deceased was

a young girl and in view of the fact that she must have been

having the same state of mind for more than a year and,

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thus, she was unlikely to commit suicide only because she

was not sent by her in-laws to attend the marriage of her

brother. In any event, having regard to the presence of

ligature mark on her neck, commission of suicide by self

strangulation and thereafter setting herself on fire must be

ruled out.

The learned counsel would contend that commission of

murder of Bimlabai by an intruder is wholly improbable. It

was pointed out that PW-2, PW-7, CW-2 and CW-6

categorically stated that the appellant No. 1 was at home at

about 3.00-3.30 p.m. The learned counsel would contend that

if the appellants and Kusum were present in the house and if

the story that immediately prior to the occurrence the

family was visited by PW-13, it is impossible for an

intruder to come and commit the offence without being

noticed. The learned counsel would aruge that such an

offence is not possible to be committed without drawing the

attention of others, without any noise and without any

shriek by the victim which are clear pointers to the fact

that throttling of the deceased must have been committed by

somebody who was known to her and had access, and, in that

view of the matter the offender cannot be any other person

but the appellant No. 1.

Ms. Makhija would contend that demand of dowry, an

unhappy marriage, the threat by the appellant No. 1 and his

father and PW'5's refusal to give to the accused person the

sum of Rs. 2000/- on demanded by them, establish sufficient

motive for the accused persons to commit the murder of

Bimlabai and then to make the same look like a case of

suicide. The burn injuries suffered by the appellant No. 2

in hand is also a pointer to the fact, Ms. Makhija would

contend, that she had also taken part in setting fire on the

deceased.

It was urged that as the plea of alibi of the

appellants have not been proved and keeping in view the

proximity of time and the place of occurrence and time of

murder, it can safely be presumed that the entire occurrence

took place within 10-15 minutes and it was possible for the

appellant No. 1 to come back from the House of Illias Khan

and upon commission of the crime go back to his house to

show his absence. Furthermore, the burden of proof when a

plea of alibi has been found to be false lies upon the

accused persons, Ms. Makhija would argue.

It is a case which, in our considered opinion, requires

a broad based consideration.

We will proceed on the basis that the death of Bimlabai

was a homicidal one. We will also assume that the contents

of the post mortem report is correct and, thus, the death of

Bimlabai was caused due to asphyxia. We may further assume

that the appellants herein have failed to prove their plea

of alibi. What, however, is baffling to us on the manner in

which the offence is alleged to have been committed. The

High Court arrived at its findings relying upon the spot map

prepared by learned trial Judge which indicates that there

existed a window in the kitchen without any grill; the

height whereof from the road is said to be 11 ft. holding :

"71. From the map proved by the

prosecution, the site map and the note

prepared on the direction of the Judge

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go to show that there were two places

wherefrom a person in the kitchen and

the side room of kitchen could slip

away; (i) by window which is nearly 10

to 11 feet in height from the ground.

(It is note worthy that it is not a

construction with plain wall upto 11

feet but with residential quarters in

the ground floor and therefore, it was

not impossible to slip away from that

window after commission of murder), and

(ii) the other possibility that the

person who committed murder came out

from the gap between the wall containing

door No. 10 and 12 and the roof which

was probably closed subsequently and,

therefore, marks of new constructions of

the wall above the door upto roof."

The High Court, therefore, considered the escape of the

assassin of Bimlabai through one of the two gaps as possible

but did not assign any reason as to how the same can be said

to have been established. Furthermore, it does not appear

that such a case was made out by the prosecution.

Investigation in this behalf does not appear to have been

carried out to show as to whether it was possible for a

person to climb the wall before slipping out of one of the

two places mentioned by the High Court nor any material in

support thereof was brought on record. The witnesses did

not say that they had seen any foot mark of any person on

the wall nor any other evidence suggests that one of the two

open places would otherwise be used by the offender as

possible escape routes. If the time of incident is taken to

be nearer 5 p.m. than 3.30 p.m., it would be well nigh

possible for the appellant No. 1 to climb the wall, sneak

through the open places and jump from the window to the lane

without being noticed. It also does not appear that the

attention of the appellants had been drawn by the Sessions

Judge to any piece of evidence seeking their explanation

thereabout in their examination under Section 313 of the

Code of Criminal Procedure. Had it been the prosecution

case that the appellant No. 1 after throttling the deceased

and setting her on fire escaped through one of the two open

places mentioned by the High Court, it was obligatory on the

part of the Court to give an opportunity to the appellants

to explain thereabout. Such a circumstance, had it been put

to the appellant no.1, could have been explained away by

him. The appellants were, therefore, prejudiced by not

being given a chance to explain the said purported material

against him. It is not a case where no prejudice can be

said to have been caused to the appellants.

The findings of the learned Sessions Judge to the

effect that had any person slipped or gone away from that

window, pedestrians through the lanes must have seen such

person cannot, in our opinion, be said to be irrational

warranting interference by the High Court. If the

observations of the High Court to the effect that persons

going through the road do not keep a vigil on such

movements, is correct, the same by would itself give rise to

some surmises keeping in view the fact that there existed a

greater possibility of the appellant no.1 being seen as his

jumping from the window would have been abnormal which would

attract the attention of the persons who had assembled to

take water from the tap. We also fail to see any force in

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the finding of the High Court to the effect that only

because the appellant no.1 was the husband of the deceased

he had a chance to throttle her all of a sudden without any

resistance. The finding of the High Court to the effect that

Gulbadanbai having sustained burn injuries in her hand, the

probability of her presence at this time of setting of fire

cannot be ruled out is contradictory to its ultimate finding

that she was guilty of offence only under Section 201 of the

Indian Penal Code and not under Section 302/34 thereof.

It is now well-settled that benefit of doubt belonged

to the accused. It is further trite that suspicion,

however, grave may be cannot take place of a proof. It is

equally well-settled that there is a long distance between

'may be' and 'must be'.

It is also well-known that even in a case where a plea

of alibi is raised, the burden of proof remains on

prosecution. Presumption of innocence is a human right.

Such presumption gets stronger when a judgment of acquittal

is passed. This Court in a number of decisions has set out

the legal principle for reversing the judgment of acquittal

by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10

SCC 79, Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148

and Shailendra Pratap & Anr. Vs. State of U.P. (2003) 1 SCC

761), which had not been adhered to by the High Court.

The entire case is based on circumstantial evidence.

Pieces of circumstances, however, strong may be, it is well-

known that all links in the chain must be proved. In this

case a vital link in the chain, viz., possibility of the

appellant No. 1 committing the offence, closing the door and

then sneaking out of the room from one of the two places had

not been proved by the prosecution.

We, thus, having regard to the post mortem report, are

of the opinion that the cause of death of Bimlabai although

is shrouded in mystery but benefit thereof must go to the

appellants as in the event of there being two possible

views, the one supporting the accused should be upheld.

For the reasons aforementioned, we are of the opinion

that the impugned judgment cannot be sustained which is set

aside. Accordingly, the appeal is allowed. The appellants

are on bail. They are discharged from the bail bonds.