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PETITIONER:

PRABHUDAYAL AND OTHERS

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT14/05/1993

BENCH:

YOGESHWAR DAYAL (J)

BENCH:

YOGESHWAR DAYAL (J)

KULDIP SINGH (J)

CITATION:

1993 AIR 2164 1993 SCR (3) 878

1993 SCC (3) 573 JT 1993 (4) 475

1993 SCALE (2)941

ACT:

%

Indian Penal Code 1860-Ss. 302, 498A, 201 read with 34 and

S. 306 read with 34-Burning of young married woman-Whether

death by burning or strangulation-Whether suicide or

homicide-Held, facts indicate homicide, and death by

strangulation preceding burning.

Circumstantial Evidence-Held, cumulative effect or

circumstances negatives innocence of father-in-Law and

husband--Mother-in-law and Sister-in-law may not have

participated, hence, acquitted.

HEADNOTE:

Sangita was married to accused 2 on 28th April, 1984. In

the intervening night of 14115 September 1984, the accused

found Sangita burning. Sangita's body suffered 100% burns

and the smell of kerosene was noticed even in the spot

panchnama. There had been problems relating to dowry, and

she had complained of ill-treatment and of being beaten

because of failure to pay the dowry amount.

The trial judge acquitted accused 1-4 - her father-in-law,

husband, mother-in-law and sister-in-law respectively.

The High Court examined the evidence a fresh, while

castigating the trial judge for having gone merely on the

statement of the Public Prosecutor that only a case under

Ss. 306, 498-A and 34 was made out. The High Court

Convicted the accused under S.302 r/w 34, S.201 r/w 34 and

498-A r/w 34.

Partly dismissing the appeal, this Court..

HELD: 1. It was a case of murder and not suicidal death.

It is not possible that there were no 'cries' from the

deceased while she was burning. This is not possible even

in a case of suicide.

Some of the symptoms of internal and external injuries are

common in

879

case (if strangulation and burns. But some symptoms that

occur in the case of strangulation, and not in case of

burns, are present in this case.

Dr. K.S. Narayan Reddy, The Essentials of Forensic Medicine

and Toxicology 6th edn. p. 55, relied on.

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2. The prosecution rests its case only on circumstantial

evidence. Therefore, it is necessary to examine the

impelling circumstances attending the case and examine

whether the cumulative effect of those circumstances

negatives the innocence of the appellant-,; and serves a

definite pointer towards their guilt and unerringly leads to

the conclusion that with all human probability the offence

was committed by the appellants and none else.

State of U.P. v. Dr. Ravindra prakash Mittal, JT(1992) 2 SC

114 at 121. applied.

Taylor, Medical jurisprudence, relied on.

On an appreciation of the circumstances which arc

established as being closely linked to one another, the

complicity of appellants 1 and 2 is not in doubt. But it is

not necessary that appellants 3 and 4 also participated in

the murder of the deceased. They are given the benefit of

doubt and accordingly acquitted.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 738 of

1992.

From the Judgment and Order dated 16.11.1992 of the Bombay

High Court in Crl. A. No. 148 of 1989.

A.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the

Appellant.

S.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the

Respondents.

The Judgment of the Court was delivered by

YOGESHWAR DAYAL, J.This is an appeal by the four accused

persons against the judgment of the Bombay High Court dated

16th November. 1992. Appellant No. 1 who was accused No. 1

was tried for the offence of having

880

committed the murder of his daughter-in-law Sangita, wife of

appellant No. 2 who was accused No.2, during the night

between 14th September, 1984 and 15th September, 1984 at the

residential house of the appellants at Murtizapur with

common intention and also for having treated her with

cruelty on account of dowry amount. In the alternative the

appellants were also charged for the offence of having

abetted the deceased Sangita in commission of suicide by

subjecting her to cruelty. Appellant no.3, who was accused

No.3, is the wife of accused No.1 and appellant No.4, who

was accused No. 4. is their daughter. Appellants 1 to 4 are

hereinafter called accused Nos. 1 to 4.

The story of the prosecution was as follows:-

The accused run a printing press at their residence.

Marriage of accused No. 2 was settled with the 5th daughter

of Madan lal (PW. 8). Few days prior to the settlement of

the marriage. marriage of her elder sister was also settled.

As such marriages of both the daughters i.e. Sangita and

Hemlata were celebrated at Paratwada on 28th April, 1994.

Talk over the marriage had taken place about a month prior

to the marriage and the same was finalised after about 2 or

3 days of such talks. At the time of finalisation, accused

No. 1 demanded Rs. 20,000 by way of hard cash as dowry,

besides other articles, add he himself had given such

demands in writing vide Ext. 73. Though agreed, Madan Lal,

father of the deceased could not give Rs. 20,000 at the time

of marriage. He also could not give the gold agreed, though

he assured to comply with the demands later on getting the

crops. After the marriage, on account of the month of

Shrawan, and as per custom, Sangita resided with her

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parents. It was during her stay after the marriage that she

was found disturbed and sullen. Though she herself did not

give out the reason therefore, but on insistence by the

father to know the reason she told him that accused No. 1

had an evil eve on her and that other members of the family

used to beat and ill treat her because of the failure on the

part of Madan Lai to pay the dowry amount. Though Madan lal

assured that he would come down to Murtizapur and pursued

the accused, but he could not visit Murtizapur. After the

month of Shrawan, Sangita returned to Murtizapur but not

communication was made about her safe return by the accused

persons to her father. The accused persons had a telephone

connection and Madan Lal (PW.8), two three days prior to

the date of the incident contacted accused No. 1 on

telephone. Accused No. 1 talked angrily with Madan Lal.

Madan Lal then requested accused No. 1 to call Sangita on

telephone. Sangita came on phone and in answer to his query

she broke down and Stated weeping and told Madan lal as to

why he did not send Ganesh Chaturthi Neg','Neg' means a

customary offer that the father of the bride has to pay on

an auspicious day. It varies according to financial

capacity of the father. He told

881

Sangita that he had committed it mistake and assured that he

would be sending it immediately. On the next day lie had

got drawn a draft of Rs. 101/- on State Bank of India. Ext.

74-A is the said draft. It was thereafter when Madan Lai

was on a visit to Amravati that Madan Lal received a message

about Sangita having got burnt on 15th September, 1984.

During the night between 14th and 15th September. 1984 at

about midnight the accused found Sangita not in her bed and

smell of burning. They found that in the rear side open

space Sangita was burning and lying down. According to the

defence the doors were closed from inside and there was no

access to the said open space. Accused No. 1 informed the

police about the occurrence that he had seen through the

window opening on the )pen space. Accused No. 1 at about

3.45 a.m. on 15th September, 1994 submitted it report

(Ext.82) to the police wherein he had stated that about 2.

10 a.m. in the night Sangita was found to be burnt and died

in the bath-room. PW.9. Mundheh. the investigating Officer

gave instructions to the accused persons not to disturb the

situation. Initially on the report of the accused,

accidental death was registered. PW9 when reached the spot

on 15th September. 1984 at about 10.00 a.m. he made spot

Panchnama vide ext.63. He also found a postcard. half burnt,

(Ext. 62) by the side of the dead body. He thereafter drew

inquest panchnama (Ext.64). PW. 1 Bhanudas acted as a panch.

PW.9 having convinced that it was a case of murder, lodged

it report on behalf of the State registering the offence

punishable under Section 302 read with Section 34 of the

Indian Penal Code. Dr. Lande, PW.3, on 15th September, 1994

at about 5.00 p.m. conducted the post-mortem.

The Additional Sessions Judge on the basis of the material

filed with the challan. on 30th September, 1994 trained a

charge under Sections 302.499-A and 201 read with Section 34

of the Indian Penal code and thereafter recorded the

evidence of PWs. 1 to 9. Thereafter by an order dated 22nd

August, 1988 the trial court framed an additional charge for

the offence punishable under Section 306 read with Section

34 of the Indian Penal Code. The accused persons challenged

the framing of the additional charge before the High Court

but the challenge was defeated. The accused persons were

accordantly tried. Their defence through out was a total

denial.

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It appears that during arguments the Prosecutor did not

think it proper to press for the diffence punishable under

Section 302 read with Section 34 of the Indian penal Code.

According to the Prosecutor the only case made out was for

the offences punishable under Sections 306, 498-A read with

Section 34 of the Indian Penal Code. The trial court

endorsed the view of the Public Prosecutor and did not

882

discuss the relevant evidence it all on the charge of

Section 302 and recorded a finding of acquittal in that

behalf. He also held that the charge of Section 201 also

did not survive.

The learned trial Judge also held that the prosecution hits

not been able it) prove that the accused persons with their

common intention treated Sangita with cruelty or thereby

abetted her to commit suicide. He accordingly acquired all

the accused persons for the offence punishable under Section

306 read with Section 34 of the Indian Penal Code.

The State filed all appeal against their order of acquittal

and the High Court on appeal castigated the trial judge for

having gone merely oil the statement of the public

Prosecutor without applying his own mind on the evidence.

The High Court examined the evidence afresh.

The High Court posed a question is to whether the nature of

death of Sangita was suicidal or homicidal and ultimately

gave a finding that it was a case of homicidal death and

found all the accused guilty under Section 302 read With

Section 34 and Section 201 read with Section 34. The

accused were also find guilty under Sections 498-A read with

Section 34. For the offence under Section 302 read with

Section 34 all of them were sentenced to rigorous

imprisonment `for life and different fines. For the offence

under Section 201 read with Section 34 all the accused

persons were sentenced to rigorous imprisonment for three

years and each of them was fined Rs.1,000/-. For the

offence under Section 498-A read with Section 34 all of them

were sentenced to one year rigorous imprisonment and a fine

of Rs.2,000.

Learned counsel for the defence, however, submitted before

the High Court that the charge under Section 302 read with

Section 34 did not survive tit view of the concession made

by the Prosecutor and also in view of the framing of the

additional charge under Section 306 read with Section 34.

It was also submitted that the framing of the additional

charge negated the theory of murder in pith and substance.

The High Court, however negatived this submission and on

consideration of the evidence convicted all the accused

persons as stated above.

Body of Sangita suffered 100% burn injuries and smell of

kerosene was even noticed in the spot panchanama. The

description 1005 burn does not really fully

883

convey the condition of the body. Asper the inquest report

the dead body was lying on its back in the open court-yard

at the back side of the house of the accused. Both the legs

were partly stiffen. Both the hands were partly bent and

lying at side. Hairs on the head burnt and-even fleshy

portion is also burnt at some places. There was slight hair

at some portion of head. Complete body was burnt and skin

on it also peeled up. Face had became red and black. Eyes

were closed and burnt. Nose was burnt and blood was cozing

from the nose and mouth. Tongue was slightly protruding

out.

Brassier of the left side was totally burnt and right side

was partly burnt. Ash of burnt cloth was visible on

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stomach. A partly burnt small piece of the border of saree

was lying there. Some pieces of saree, burnt and sticking

each other, were lying on the stomach. Skin on palm of both

hands was peeled up and was appearing reddish. Skin on the

complete body was burnt and peeled up. On observing the

body by turning its upside down, the complete body was burnt

from back side. On observing the private parts of the

deceased through Pancha No.3 it was stated that private

parts were burnt and there was no injury and to ascertain

the actual cause of death, the dead body was sent to the

Civil Surgeon, Murtizapur for post-mortem. According to Dr.

Lande, who conducted the postmortem, on opening of trachea

black particles were found. He recorded that probable cause

of death was 100% burn with bum shock with asphysix.

On the basis of medical evidence the High Court again felt

the necessity to ascertain whether the act of pouring

kerosene oil was voluntarily by the victim or the act of a

third person. The High Court felt that the trial court has

not even discussed the medical evidence or the inquest

report and hastily reached the conclusion that it was a case

of suicidal death. According to the High Court the entire

approach of the trial court was thoroughly unsatisfactory

and grossly erroneous. After going through the evidence the

High Court gave the following findings:--

That the deceased could not control her emotional out-burst

even during the presence of her father -in-law while talking

on telephone. The deceased was a young girl of 20 years. A

determination to suffer extreme pain in silence could not be

a matter of speculation. "In third degree injuries, as per

Dr. Lande, the victim suffers extreme pain. Such injuries

will make the person to give out cries and shouts for help."

The shouting and crying of the deceased was not only obvious

but inevitable. Undisputedly, none had heard the cries or

shouts of the deceased while she was in flames. This

circumstance alone does not support the probability of

suicidal death.

884

The trial court has wrongly read the contents of letter Ext.

62 and its interpretation is highly illegal.

Undisputedly Sangita returned from Paratwada after "Shrawani

Mass" just a week before the incident, probably by 7th

September, 1984. She was subjected' to insinuation and

accused used to refer her as "awara", "loafer". "badmash",

She wanted to convey this to her father through post card

(Ext.62) which seemingly not delivered. By this letter she

requested her father not to visit Murtizapur. This letter

never reached post off-ice and the message could not be

passed to Madan Lai, PW. 8. Before accomplishing her design

to convey this message, she could not bring an end to her

life. Sangita could not simply think of committing suicide

while in possession of Ext.62.

Sangita at the time of incident, as per the post mortem

report. was having, a pregnancy of 3-4 months and this is

also not in tune with the act of commission of suicide.

The Sessions Judge omitted to discuss the complete evidence

of Dr. Lande and the post mortem report Ext.50. As per post

mortem report the eye-ball and tongue of the deceased were

protruding. Dozing of the blood was found from the nose and

mouth. In case of death due to burning such injuries cannot

be sustained.

Sangita was assaulted before she was set on fire. There

might be a definite attempt to cause death by strangulation

before pouring kerosene oil on her person. Relying of the

evidence of PW.1, Shivraj, a neighbour who heard a shriek

of' woman as a result of strangulation coming from the house

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of the accused. Taking into account tile medical evidence

read with the testimony of PW.1, Shivraj, Sangita met with

tile homicidal death.

A ball of cloth half burnt was also found by the side of the

body. The ball was used for gagging her mouth as a

precautionary measure to handicap her from raising cries or

shouts. PW.5, Bhanudas, had also noticed dragging marks in

the court-yard and the deceased after assault was dragged

and kept at the spot.

While in flames Sangita did not make any movement. She was

completely motionless.

The latching of doors of the compound was not accepted as an

act of the deceased. Latching of doors and pouring of

kerosene after assault was a farcical venture skilfully and

conveniently made to bring colour of suicide to the

incident.

885

The High Court then posed the question as to who is

responsible for homicidal death of Sangita. It was held

that it could not be an act of an individual It was joint

venture. There is no direct evidence. Undisputedly the

payment of Rs.20,000/- was not made nor the tither items

mentioned in Ext. 73 were given till the date of incident.

On her second visit, the deceased had disclosed to her

father, Madan Lal. that the members of in-laws' family had

beaten and ill-treated her for the reason of non-fulfillment

of dowry and other articles. A reading of the letter

indicates that the accused persons had very serious

grievance against Sangita and her parents for non

fulfillment of dowry demands.

Recovery of handkerchief at the instance of accused No. 1 in

pursuance of a disclosure statement and the seizure thereof

vide Ext.69 from a drawer of the table of the office. The

handkerchief was smelling, kerosene oil. It was concealed

at a place which was not normally or ordinarily used for

keeping the handkerchief.

This handkerchief was used at the time of the incident.

None of the accused persons made any attempt to reach the

spot even though they noticed the death of Sangita. They

merely allowed the body to be burnt. Accused persons had

quoted exact time of death in Ext.82 which means that they

were mentally alert and conscious of the happening in the

house.

The refusal to disclose the death of Sangita to the

chowkidar of the locality, PW.2, Rahadursingh. The meeting

with chowkidar Bahadursingh was falsely denied in the

statement under Section 313 of the Code of Criminal

Procedure.

Homicidal death occurred by Sangita while she was in their

custody. The incident with its gravity and extent cannot in

any manner go unnoticed. As such the accused persons were

duty bound to offer plausible explanation. Their action was

concerted. well thought out. well planned.

With the aforesaid findings all the accused persons were

found guilty by the High Court and the appellants have come

up in appeal before this Court.

This court on application of appellant Nos. 3 and 4 i.e.

another-in-law and sister-in-law of the deceased, admitted

them to be on hail.

Apart from the inferences noticed by the High Court there

are certain other features in the post mortem report Ext. 15

which may also be noticed at this state. It is stated in

paragraph 13 of the post mortem report that the whole (if

skin of face

886

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was burnt and Covered at places with black soot. Eye ball

slightly protruding Tongue was protruding from mouth. Blood

stained discharge from nose and mouth. In paragraph 17 it

is noticed heirs of the scalp, eye lashes, both ears, eyes,

whole neck. whole chest. whole abdomen suffer from burns.

Buttock and pubic hairs also burnt. Black soot was present

over burnt area of face, chest, abdomen. In paragraph 19 it

is stated Brain & Meninges congested. In paragraph 20 it is

stated Larynx.Trachea and Bronchi-congested, on opening,

troches. black particles seen inside human. Right lung left

lung-congested. Right ventricle of the heart was full

whereas left was empty. In paragraph 21 it is stated liver

and gall bladder-congested. pancreas and suprarenals -

congested. spleen - congested, kidneys - congested and

bladder - empty, i.e. parenchymatous organs show intense

venous congestion.

Dr. K.S. Narayan Reddy, M.D. D.C.P., M.I.A.F.M.,

F.I.M.S.A.,F.A.F.Sc., Professor of Forensic Medicine,

Osmania Medical College Hyderabad in his well known treatise

THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY. Sixth

Education at page 255 gives descriptions of internal as well

as external symptoms of manual strangulation. At page 255

while dealing with signs of asphyxia. the learned author

observes : "The face may be livid, blotchy and swollen, the

eyes wide open, bulging and suffused, the pupils dialated,

the tongue swollen, dark-cloured and protruded. Petechial

hemorrhages are common into the skin of the eyelids, face,

forehead, behind the cars and scalp. Bloody froth may

escape front the mouth and nostrils and there may he

bleeding from the nose and cars. The hands are usually

clenched. The genital organs may be congested and there may

be discharge of urine, faeces and seminal fluid." While

internal injuries described little later included as under

"The larynx. trachea and bronchi are congested

and contain frothy. often blood stained mucus.

The lungs are markedly congested and show

ecchymoses and larger subaerial hemorrhages.

Dark fluid blood exudes on section. Silvery-

looking spots under the pleural surface due to

rupture of the air cells which disappear on

pricking. are seen in more than 505 cases.

The parenchymatous organs show intense venous

congestion and in young persons ecchymoses are

usually seen on the heart and kidneys. The

brain is contested and shows petechial

hemorrhages. The right side of the heart is

full of dark fluid blood and the left empty.

Both the cavities are full if the heart

stopped during diastole."

Whereas in burn injuries the learned author at pages 237-238

observes."the

887

brain is usually shrunken, firm and yellow to light brown

due to cooking. The dura matter is leathery." (dura matter

is meninges of the brain). If the death has occoured from

suffocation. aspirated blackish coal particles are seen in

the nose, mouth and whole of the respiratory track. Their

presence is proof that the victim was alive %,.hen tile fire

occurred. The pleurae are contested or inflamed. The lungs

are usually congested. may be strunken and rarely

anemic...... Visceral congestion is marked in many

cases...... The heart is usually filled with clotted blood.

'The adarme;s (glands above kidneys) may he enlarged and

congested.

Some of these symptoms or internal and external injuries are

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common in case of strangulation and burn like face is

swollen and distorted, the tongue protruded. the lungs are

usually congested visceral congestions is marked in many

cases.

What is to he noticed in the present case is that there are

hardly "any cries" as per the defence also by the deceased.

This is not possible even in case of suicide. Even if the

burns ,ire inflicted with suicidal intent tile victim is

bound to cry out of pain. Admittedly there was no cries

and, therefore, it was not a Case of suicidal burn but the

deceased was put in a condition where she could not cry and

yet get burnt by third party.

As is clear from the aforesaid commentary of Dr. K.S.

Narayan Reddy that if it was a case of merely burns the

blood of the heart would have got clotted. Even the

postmortem report does not say that asphvsix was due to

burn. Coupled with all the internal injuries which occur in

the case of strangulation. are present in this case.

As pointed out by the High Court there is no direct evidence

to connect the appellants with the offence of murder and the

prosecution entirely rests its case only on circumstantial

evidence. There is a series of decisions of this Court

propounding the cardinal principles to be followed in cases

in which the evidence is of circumstantial nature. It is

not necessary to repapitulate all those decisions except

stating the essential ingredients as noticed by Pandian, J.

in the case reported as The State of Uttar Pradesh v. Dr.

Ravindra Prakesh J. in the case 2 SC 114 at 121, to prove

quilt of an accused person by circumstantial evidence. They

are:-

(1) The circumstance from which tile

conclusion is drawn should be fully proved;

(2) the circumstances should he conclusive in

nature;

888

(3)all the facts so established should he

consistent only with the hypothesis of guilt

and inconsistent with innocence:

(4)the circumstances should. to a moral

certainty, exclude the possibility of guilt of

any person other than the accused."

Now let us examine the impelling circunistances attending

the case and examine whether tile cumulative effect of those

circumstances negatives tile innocence of tile appellants

and serves a definite pointer towards their guilt and

unerringly leads to the conclusion that with all human

probability the offence was committed by the appellants and

none else.

There is no doubt that when the incident occurred there was

no outsider its the house. The circumstances which ire

establislied its having closely linked up with one another

may be noticed

1) The motive for the occurrence.

2) The place where the tragic incident

occurred was

in possession and occupation of the

appellants.

3) The occurrence had happened in the wee

hours when body else would have had ingress at

the place where the incident allegedly

occurred.

4) The appellants admit their presence.

The positive features, which occurred, had it

been it pure case of burning, there would he

evidence of vomiting.

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6) The positive opinion of the doctor that

the death was due to asphysix as well apart

from 100% burns.

7) The deceased was carrying fetus of

3-4 months

8) The extensive use of kerosene as seen

from the burn shows that the deceased was

practically

889

drenched as sort of a bath with kerosene.

9) Total absence of any shout or cries

except one which was heard by way o

f

strangulation by PW. 1.

10) Blood in heart was not found clotted.

Right ventricle heart was full of blood but

left ventricle wits empty.

11) Besides total burning of neck was to

destroy evidence of attempted strangulation.

12) In burn brain is usually shrunken and

firm whereas in strangulation it is congested.

As noticed by Pandian, J. in the aforesaid decision, opinion

of Taylor in Medical Jurisprudence is quoted below. It

reads thus:

"Not uncommonly the victim who inhales smoke

also vomits and inhales some vomit, presumably

due to bouts of coughing, and plugs of regur-

gitated stomach contents mixed with soot may

be found in the smaller bronchi, in the depths

of the lungs."

By the time a person could take a bath of kerosene she is

likely to get fainted and would not be in a position

thereafter to burn herself. A total burning, of the face

and the neck shows that even at portions where she was not

wearing any clothes were not burnt. It could only be

possible if she had poured kerosene on her head and face

also.

It is not understood as to how the unposted post card found

near the dead body was not burnt when the whole body had got

burnt. It in fact indicates that the planting of the post

card was to show that it was a case of suicidal death.

In passes all human probabilities that the appellants have

satisfied themselves by watching through the window the

burning of daughter-in-law without any due and cry or

without and serious attempt to save her.

We are thus satisfied that it was a case of murder and not

suicidal death. So far as the accomplicity of appellants 1

and 2 are concerned, there is no doubt. But

890

it is not necessary if appellant Nos. 3-4 i.e. mother-in-law

and sister-in-law of the deceased have also participated in

the murder of the deceased.

For the aforesaid reasons we dismiss the appeal on behalf of

appellant. Nos. 1 and 2 but give benefit of doubt to

appellant Nos. 3 and 4 and accept the appeal on their

behalf. They are accordingly acquitted. The convictions

and sentences of appellant Nos. 1 and 2 are upheld.

U. R. Appeal dismissed.

891