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PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

DR. RAVINDRA PRAKASH MITTAL

DATE OF JUDGMENT28/04/1992

BENCH:

PANDIAN, S.R. (J)

BENCH:

PANDIAN, S.R. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 AIR 2045 1992 SCR (2) 815

1992 SCC (3) 300 JT 1992 (3) 114

1992 SCALE (1)937

ACT:

Penal Code, 1860-Sections 302, 201-Appeal against

acquittal by High Court-Circumstantial evidence-Ingredients-

Links of chain of circumstances established-Offences proved.

Penal Code, 1860-Sections 302, 201-Conviction of

accused by Trial Court-Aquittal by High Court-Appeal against

High Court's judgment suffering from illegality-Delay in

disposal of appeal-Whether a ground for non-interference of

the findings of High Court.

HEADNOTE:

The prosecution's case was that the accused-respondent

was a private medical practitioner and the deceased was his

second wife. He married her on 30.7.1971, when his first

marriage was dissolved by an ex parte decree in a suit for

dissolution filed by his first wife.

The respondent and his widowed mother and his two

married brothers and one unmarried younger brother were

living under a common roof having common mess, but in

separate rooms in the first floor of their house.

The accused was a chronic alcoholic addict and he was

having a large circle of friends. He used to come to his

house in odd hours in drunken state. This was resented by

his wife, the deceased. She insisted the accused to return

home early. On account of this, there were frequent

quarrels between them. Accused, disliking his wife's

interference in his private affairs, even started suspecting

the fidelity of his wife. It was said that the accused had

on more than one occasion unleashed threats to shoot and

kill the deceased.

On the night of 11.10.1971 the accused and the deceased

took their bed inside their room. On the next morning, on

seeing smoke out of the bed room of the accused, a large

number of people gathered at the house of the accused.

816

At about 7.30 a.m., PW-2 and another, the two brothers

of the deceased arrived there with `Ahoi Bayna' in baskets.

Seeing the crowd in front of accused house, they entertained

a suspicion. When they were told that the accused's wife

had set fire to herself, throwing the `Bayna' baskets in the

courtyard, they went up to the first floor and saw the dead

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body of their sister lying on the floor with extensive burns

all over her body. When they confronted the accused, the

accused told them that when he had gone to the latrine in

the early morning, the deceased committed suicide, for no

visible reason. The deceased's brothers did not believe the

version of the accused. They shouted that the accused

murdered their sister. While they were quarrelling, PW-4, a

Head Constable came to the scene found the accused standing

in his night-gown. P.W.4 was informed by the accused that

the decreased had burnt herself.

The S.P.(PW-3) was informed over telephone by the

accused that his wife committed suicide and he instructed

the accused to inform the local police. He come to the

scene at about 9.15 a.m., after directing the local police

to come to the scene. After inspection, the S.P. left,

giving instructions to the Investigating Officer.

The Investigating Officer (PW-4) examined the inmates

of the house and made an entry in the General Diary and

registered a case against the accused.

The accused was charged u/ss.302 and 201, IPC for the

committing the murder of his wife and for causing the

evidence of the offence of murder to disappear with an

intention of screening himself from legal punishment, by

burning the dead body by sprinkling kerosene oil.

The Trial Court convicted the accused-respondent

u/ss.302 and 201 IPC and sentenced him to suffer

imprisonment for life and rigorous imprisonment for a period

of 3 years, respectively with a direction that the sentences

were to run concurrently.

The High Court allowed the appeal and acquitted the

accused-respondent.

Against the acquittal passed by the High Court, the

present appeal was directed by the State, contending that

the cumulative effect of all the pieces of circumstantial

evidence brought on record by the prosecution

817

justified the conviction of the respondent.

The respondent submitted that the circumstances relied

upon by the prosecution were not clinching the issue; that

the presence of the respondent at the scene house at the

time of the occurrence was disproved by CWs-1 and 2 and also

by the evidence of PWs-6 and 9 did not support the

prosecution case; that in the early hours of 12.10.1971 he

at the request of PW-9 paid a visit to one Shashi's house as

the latter was suffering from some ailments and he returned

at about 7.45 or 8.00 a.m. to his house and came to know

about the incident; that the brothers of the deceased came

to his house only at 11.15 a.m. and that too on his

telephonic information to them; that the deceased herself

had created a hell of her own in the family and ultimately

committed suicide by pouring kerosene on her and setting

fire; that on the advice and prescription given by a Doctor,

the deceased was put on medicine containing barbiturates,

the traces of which were found in her visra; that the

symptoms found by PW-1, the Medical Officer were not in

support of the conclusion arrived at by PW-1, whose opinion

was only attributable to his inexperience or negligence;

that the bones could have been fractured due to excess heat

and the death could have been on account of shock due to the

burn injuries; that the cause of death could not have been

due to strangulation, but it was due to suicide by pouring

kerosene and setting herself on fire and the fractures of

the bones and other symptoms found on the body should have

been due to the intensity of the heat and that the evidence

of PW-1 supporting the prosecution version should not be

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accepted, as the Medical Officer gave false evidence on

account of some heated exchanges between him and PW-1 over

an election held among the medicos which took place about 2

or 3 days before occurrence;

Allowing the appeal of the State, this Court,

HELD:1.01 . There is no direct evidence to connect the

respondent with this offence of murder and the prosecution

entirely rests its case on circumstantial evidence. [827 C]

1.02. The essential ingredients to prove guilt of an

accused person by circumstantial evidence are:

(1) the circumstances from which the conclusion is

drawn should be fully proved;

818

(2) the circumstances should be conclusive in nature;

(3) all the facts so established should be 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.

[827 D-F]

1.03. The circumstances which are established as having

closely linked up with one another are as follows:

(1) The motive for the occurrence.

(2) The room in which this tragic and pathetic

incident took place was in the exclusive

possession and occupation of the respondent and

the deceased.

(3) The occurrence had happened in the wee hours of

12th October 1971 when nobody would have got an

ingress into the room wherein the husband and wife

admittedly slept.

(4) The evidence of PW-2, swearing that the respondent

was found in the scene house at 7.15 a.m.

(5) The presence of the respondent inside the room

wearing night-gown when PW-4 went to the scene

room.

(6) The position of the dead body lying on the ground

within a cot frame with extensive burns except on

the back and lumbar regions.

(7) The presence of the traditional external visible

features of strangulation as well as the internal

injuries establish the use of violence.

(8) The positive opinion of PW-1 who conducted the

autopsy on the dead body of the deceased, stating

that the death was due to strangulation and the

burns were post mortem.

(9) False plea of alibi and the conduct of the

respondent feigning innocence.

819

(10) The intrinsic value of the inviolable and

impregnable evidence let in by the prosecution completely

and conclusively establishing the links of the entire chain

of circumstances as a whole and not in fragments proving the

guilt of the respondent/accused. [828 B-H]

1.04. The conclusion arrived at by the Trial Court is

logical, tenable, and reasonably sustainable and that the

High Court after holding that the death of the deceased was

homicidal has gone wrong in recording the impugned order of

acquittal on erroneous and incredulous reasons.

[835 G-H]

Rama Nand v. State of Himachal Pradesh, [1981] 1 SCC

511; Gambir v. State of Maharashtra, [1982] 2 SCC 351;

Earabhadrappa v. State of Kamataka, [1983] 2 SCC 330; Ram

Avtar v. State of Delhi Administration, [1985] (supp.) SCC

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410 and Chandra Mohan Tiwari v. State of Madhya Pradesh, JT

(1992) 1 SC 258, followed.

Modi's Medical Jurisprudence and Toxicology, 21st

Edition at page 23; Taylor's Principles and Practice of

Medical Jurisprudence, referred to.

2.01. The plea of the respondent that since the

occurrence took place in the year 1971 and that more than 14

years have now elapsed since the delivery of the judgment by

the High Court in October 1977, this Court be pleased not to

disturb the finding the acquittal at this length of time has

to be summarily rejected when the facts and the impelling

circumstances surrounding the present case cry for justice

which in turn demands for awarding proper punishment

according to law, is fervent and inexorable.

[836 A-B]

2.02. If the High Court's judgment of acquittal

reversing the well reasoned judgment of the Trial Court,

convicting the respondent is affirmed, it will be nothing

but a mockery of justice and will also amount to

perpetration of gross and irreparable injustice. Moreover,

when a judgment appealed against, suffers from illegality or

manifest error or perversity, warranting an interference at

the hands of an Appellate Court in the interest of justice

on substantial and compelling reasons, the mere delay in the

disposal of the appeal will never serve as a ground for non-

interference and on the other hand, the Appellate Court is

duty bound to set at naught the miscarriage of justice. [836

C-D]

JUDGMENT:

820

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 124 of

1979.

From the Judgment and Order dated 11.10.1977 of the

Allahabad High Court in Criminal Appeal No. 2370 of 1972.

R.K. Singh and A.S. Pundir for the Appellant.

R.L. Kohli and J.M. KHanna for the Respondent.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. This appeal is preferred by the

State of U.P. on being aggrieved by the judgment dated

11.10.1977 rendered by the High Court of Allahabad in

criminal Appeal No. 2370 of 1972 whereby the High Court has

allowed the appeal, preferred by the respondent/accused,

namely, Dr. Ravindra Prakash Mittal.

The respondent took his trial on the allegations that

on the intervening night of 11/12th October 1971 inside the

house in Mohalla Moreganj Police Station Kotwali, Saharanpur

committed the murder of his wife Smt. Kamlesh; burnt the

dead body by sprinkling the kerosene oil and thereby caused

the evidence of the offence of murder to disappear with an

intention of screening himself from legal punishment. On

the above allegations, he stood charge under two heads, that

is under Sections 302 and 201 IPC.

Adumberated in brief, the facts of the prosecution case

can be summarised as follows:

The respondent Dr. Ravindra Prakash Mittal aged about

29 years in 1971 was a private medical practitioner at

Saharanpur city. He married one Smt. Mithlesh, but the

marriage was dissolved by an ex-parte decree in a suit for

dissolution filed by the wife. The respondent thereafter

married on 30th July 1971 the deceased Smt. Kamlesh, aged

about 20 years who was a resident of Jagadhri. The family

of the respondent consisted of his widowed mother Smt.

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Darshnadevi (CW-1), and three brothers, namely, Bhupendra

Prakash (CW-2), Narendra Prakash and Virendra Prakash, of

whom the first two brothers were married while Virendra

Prakash was unmarried. It is stated that his father had died

of heart attack a few months before his second marriage.

They all lived under common roof, having common mess but in

separate rooms in the first floor of their house with their

respective wives and children. Smt. Darshnadevi and her

younger son

821

Virendra Prakash had occupied a separate room. The

respondent had his clinic in the ground floor. PW-6, by

name, Mohd. Aslam alias Chini was working as a Compounder in

the clinic, occasionally doing domestic work.

Smt. Kamlesh had two brothers, by name, Mamchand and

Suresh Chand (PW-2). Her elder sister's husband is one

Nagesh Agarwal (PW-7). It transpires from the evidence that

after her mother's death she had mostly lived in her elder

sister's house till her marriage. After the marriage, she

visited her parents and brother-in-law twice or thrice in

quick succession and wrote some letters, two of which are

marked as Exts. Ka-3 dated 18.9.1971 and Ka-4 dated

19.9.1971. The case of the prosecution is that some time

after the marriage the relationship between the deceased and

the respondent became strained. It is said that the

respondent had on more than one occasion unleashed threats

to shoot and kill the deceased. While it was so, on the

fateful night the respondent and the deceased after taking

their dinner slept in a room which was in their exclusive

possession. In the morning the dead body of the deceased

Smt. Kamlesh smelling of kerosene was found by the inmates

of the house inside the bed room lying within a cot frame of

the floor. The respondent and his family members came out

with a statement that deceased had committed suicide by

sprinkling kerosene and setting herself on fire. The

respondent telephoned to the Superintendent of Police,

Saharanpur (PW-3) and informed that his wife Smt. Kamlesh

had committed suicide. PW-3 asked the respondent to inform

the local police and told that he would himself soon reach

the spot. Meanwhile, PW-4, Ram Krishan, a Head constable

attached to the outpost Mali Gate came to the scene place on

his way to Kotwali. He on receipt of the information about

the death of Kamlesh telephoned to Kotwali Police Station

and informed PW-13, another Head Constable about the

incident. This piece of information passed on by PW-4 was

entered in the General Diary (Ext. Ka-28) at 8.00 a.m.

reading that PW-4 had informed over telephone that the wife

of the respondent had died of burns. The Sub Inspector of

Police, Ganga Ram Nagar (PW-10) in whose presence the

telephonic message from PW-4 had been received at Kotwali,

immediately proceeded to the scene accompanied by another

S.I. Asthan and Inspector Wajid Ali Khan (PW-14). They all

reached the scene at about 8.30 A.M. and found a crowd of

about 150 to 200 persons at the scene house. On reaching

the scene house, PW-10 found a basket with some snacks and

sweets lying scattered in the court-yard. The police party

went to the upstairs and found the respondent and other

members of the family

822

present. Insides the bed room the dead body of the deceased

was found lying on the floor within the frame of the cot

with extensive burns. An inquest was held over the dead

body. Certain photographs (Exts. A-D, F and G) were caused

to be taken with the help of PW-11, a photographer. The

inquest report is filed as Ext, Ka-8. After sending the

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dead body for post-mortem, PW-10 inspected the scene place

and prepared the site plan (Ext. Ka-10). The room in which

the dead body was lying had its door opening to the inner

balcony towards east. Adjacent to this room there was a

small kitchen containing utensils and other articles. The

wooden frame of the cot was scorched. About two steps away

from the dead body a match box containing a large number of

burnt match sticks was found lying. A thin layer of smoke

was present on the walls and ceiling of the room. A plastic

bucket with water was found two or three steps away from the

dead body, but there were no signs of water having been

poured either on the dead body or in the scene room. A

medicine box was found inside the room with an injection

syringe fitted with a needle. A five litre kerosene oil tin

was in the room containing about a litre of kerosene. All

the articles (Exts. 4 to 22) which were found inside the

room were recovered under Memos (Exts. Ka-11 to Ka-17).

Meanwhile, the Superintendent of Police (PW-3) reached the

spot by about 9.15 a.m. He also inspected the place of

incident and left the scene after giving instructions to the

Investigating Officer. The Investigation Officer after

examining the inmates of the house came to the station; made

an entry in the General Diary (Ext. Ka-18) and registered a

case against the respondent under Section 302 IPC on

entertaining a suspicion against him on the materials that

he had collected.

PW-1, the Medical Officer attached to the District

Hospital, Saharanpur, conducted necropsy on the dead body of

the deceased on the following day i.e. 13.10.1971. The dead

body with blackening of the skin was smelling kerosene. The

hands of the deceased were clenched. The eyes were

congested and the eye-balls were prominent. The tongue was

swollen and protruding out and also compressed between the

teeth. Blood mixed with froth was coming out through

nostrils. On internal examination, the Medical Officer

found the 6th and 7th ribs fractured. The right cornua of

the Hyoid bone was also fractured. The brain was congested;

the thorax had extensive burns in the upper region. There

was a contused area measuring 5 cm. X 4 cm. on the side of

th fracture. On the right side of the neck there was

clotted blood in an area of 4 cm. X 3 cm. and the muscles at

that place were lacerated. The larynx and trachea and both

the

823

lungs were all congested and they contained dark fluid

blood. The inner layers of the right carotid artery was

congested. The bladder was empty. The Medical Officer is

of the opinion that death was due to strangulation and that

the fractures on the body were ante-mortem. His report is

marked as Ext. Ka-1. In the cross-examination, the Medical

Officer has stated that the deceased could have died on

12.10.1971 between 7.00 a.m. and 8.00 a.m. in the morning,

which he has clarified in his re-examination stating that

this opinion is subject to a margin of 2 to 4 hours on

either side. He gave a supplementary report, stating that

the fractures of the bones were ante-mortem but the burns

were-post-mortem. The supplementary report is marked as

Ext. Ka-2. The report of the Chemical Examiner (Ext. Ka-38)

revealed traces of barbiturates in the portions of the

viscera of the deceased.

The Investigating Officer searched for the

respondent/accused, but he could not secure him as he was

not available. He examined the inmates of the house, and

the compounder (PW-6) and some others. Further

investigation was taken up by the Inspector of Police (PW-

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14) on 14.10.1971. PW-14 received the two letters (Exts.Ka-

3 and Ka-4) on being handed over by PW-7. At about 11.00

p.m. on that day the respondent was arrested when the latter

was proceeding in a car towards Dehradun and interrogated.

After completing the investigation the charge sheet (Ext.Ka-

33) was laid.

The respondent denied his complicity with the offence

in question and gave a lengthy statement. According to him,

he was having cordial relationship with his wife and he did

not cause the death of his wife or he sprinkled kerosene on

her dead body. On the early morning of the date of the

occurrence he, leaving his wife in the kitchen, went outside

to examine a patient accompanied by one Jageshwar (PW-9) and

returned only at about 7.45 or 8 a.m. and found his wife

lying dead. He further adds that he immediately informed

the Superintendent of Police (PW-3) about this tragic

incident.

There is no direct evidence to prove to charges

levelled against the respondent and the prosecution

endeavours to establish the guilt of the respondent only on

the circumstantial evidence - both oral and documentary. 14

witnesses were examined on the side of the prosecution of

whom PW-6 (the Compounder) and PW-9 (Jageshwar) were

declared as hostile witnesses. In addition to the

prosecution witnesses, the Trial Court examined the mother

and a brother of the respondent as Court Witnesses 1

824

and 2. The substance of the evidence of the Court Witnesses

is to the effect that the deceased was found dead inside the

room; that they both threw water evidently to extinguish the

fire and that the respondent was not in the house in the

early morning. The Trial Court after analysing the evidence

in extenso found thus:

"In any case, the circumstances established are so

patent and most of them are even accepted by the

accused, that latches of the investigation, if

any, have little bearing on their proof. The

truthfulness of the evidence leading to them

cannot, therefore, be questioned for any such

reason.............................................

...................................................

In the background of their strained relations and

the suspicion lurking on the mind of the accused,

it may be that on the deceased uttering something

to his dislike, he suddenly jumped upon her and

throttled her to death. Such an opportunity could

scarcely be available to anyone else in the house

with the result that the possibility of anyone else

committing the murder can on the established facts

and circumstances, be reasonably excluded in this

case...............................................

...................................................

In the circumstances, the chain of evidence, to my

mind, can be considered to be so complete against

him as to show that within all human probability

the murder of Kamlesh must have been committed by

him and none else. He can, therefore, be safely

held guilty on the basis of these circumstances

alone."

On the basis of the above findings, the Trial Court

convicted the respondent under Sections 302 and 201 IPC and

sentenced him to suffer imprisonment for life and rigorous

imprisonment for a period of 3 years respectively with a

direction that the sentences are to run concurrently.

Challenging the judgement of the Trial Court, the

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respondent filed criminal Appeal No. 2370 of 1972 before the

High Court which for the reasons mentioned in its judgement

allowed the appeal, set aside the conviction and sentences

awarded by the Trial Court and acquitted the respondent

holding that:

"The prosecution has, therefore, not been able to

establish the chain of circumstances. The

circumstances as proved are not

825

incompatible with the innocence of the appellant."

The present appeal is directed by the State on being

aggrieved with the judgement of the High Court.

Before adverting to the rival contentions, adduced by

the respective parties, we shall give a prelude to this

incidence which in our opinion has become necessary to

narrate since it serves as a strong motive for this heinous

crime executed in an extremely cruel manner.

The father of the deceased had married thrice. His

third wife was the deceased's mother, who died about 4 years

before the occurrence. The deceased's father was working at

Karatpur Sahab in Punjab. The deceased's sister Urmila is

given in marriage to PW-7 and she had two brothers, namely,

PW-2 and Mamchand. As Urmila had loved the deceased,

Kamlesh, too much she brought Kamlesh with her while Kamlesh

was 10 years old and educated her. At that time, the

parents of the deceased were in Calcutta.

The respondent previously married one Mithlesh,

daughter of one Ram Kishan, resident of Shamali. This

marital tie did not serve long and ended in a divorce. The

respondent married the deceased Kamlesh on 30.7.1971 and the

marriage was celebrated in the house of PW-7 at Jagadhari.

After the marriage, the deceased Kamlesh was living with her

husband, respondent, occupying a separate room in the first

floor of their house allotted to them.

The respondent, his widowed mother and three brothers

were all living under a common roof having common mess. It

is stated by PW-2 that the respondent was a chronic

alcoholic addict and used to come to his house in odd hours

in drunken mood. The respondent was also having a large

circle of friends inclusive of one Mahesh Goyal, an Engineer

with whom he used to spend his evenings. This was resented

by the deceased who insisted the respondent to return home

early. On account of this, there used to be frequent

quarrels between the spouses.

PW-5, who is an independent and disinterested witness

has testified to the fact that while he was in service as a

bearer in Victoria Bar at Saharanpur serving liquor to the

customers, he had seen the respondent often visiting that

bar and taking wine. He further states that on the

826

previous night, that is on the night of 11th October 1971

the respondent came to the Bar at about 8 or 9 p.m. and was

there for half an hour drinking wine served by him and on

the next early morning he heard about the occurrence. It is

the evidence of PW-7 that after the marriage, the deceased

used to visit his house and also sent letters. As per the

evidence of PWs 2 and 7 some time after the marriage, the

relationship between the deceased and the respondent became

strained and discordant and on account of that, the deceased

was separately cooking her food on being compelled by the

respondent.

The prosecution has marked two letters written by the

deceased Exts. Ka-3 and Ka-4 dated 18.9.71 and 19.9.71

through PW-2. In both these letters, the deceased had given

a brief note of the circumstances which ultimately led to

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her death stating that the respondent used to come to the

house in odd hours in sozzled condition and threaten her

life; that she would not resort to do anything to her life

whatever the harassment might be at the hands of her husband

and that if at all anything would happen to her life, it

would be only at the hands of her husband. Of the two

letters, Ext. Ka-3 was addressed to PW-2 and Ext.Ka-4 was

addressed to PW-7. Besides, the respondent disliking the

interference of his wife in his private activities and

affairs, went to the extent of even suspecting the fidelity

of his wife.

It was only in the above tragic circumstances, this

shocking and horrifying incident took place in the wee hours

of 12th October 1971. Admittedly, on the night of 11.10.1971

both the husband and wife (i.e. the respondent and the

deceased) took their bed inside the room, allotted to them

in the first floor of the house. On the next morning, on

seeing smoke coming out of the bed room in the scene house a

large number of neighbours and passers-by had gathered at the

scene house. At about 7.30 a.m. PW-2 and his brother

Mamchand arrived there with `Ahoi Bayna' in baskets from

Jagadhri. PW-2 and his brother on seeing the crowd in the

courtyard entertained a suspicion. They were told that the

respondent's wife had set fire to herself. Thereupon PW-2

and his brother threw the `bayna' in the courtyard, went up

to the first floor and found the respondent standing inside

the room and the dead body of their sister lying on the

floor with extensive burns all over her body. When they

confronted the respondent as to what had happened, the

respondent stated that they both had slept well on the

previous night and that when he had gone to the latrine

827

in the early morning, the deceased had committed suicide for

no visible reason and that she by such act not only ruined

herself but also spoiled his life. PW-2 and his brother did

not believe the version of the respondent and shouted that

the respondent had killed their sister. A quarrel ensued

between them. By that time PW-4 who came to the up-stairs

found the respondent standing in his night-gown. PW-4 was

informed by the respondent that the deceased had burnt

herself.

PW-3 who was the S.P. of that District came to the

scene spot at about 9.15 a.m., after directing the local

police to come to the scene and found the respondent at the

scene.

As pointed out supra, there is no direct evidence to

connect the respondent with this offence of murder and the

prosecution entirely rests its case only on circumstantial

evidence. There is a series of decisions of this Court so

eloquently and ardently propounding the cardinal principle

to be followed in cases in which the evidence is purely of

circumstantial nature. We think, it is not necessary to

recapitulate all those decisions except stating that the

essential ingredients to prove guilt of an accused person by

circumstantial evidence are:

(1) The circumstances from which the conclusion is

drawn should be fully proved;

(2) the circumstances should be conclusive in nature.

(3) all the facts so established should be 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.

Vide Rama Nand v. State of Himachal Pradesh, [1981] 1

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SCC 511; Gambir v. State of Maharashtra, [1982] 2 SCC 351;

Earabhadrappa v. State of Karnataka, [1983] 2 SCC 330 and Ram

Avtar v. State of Delhi Administration, [1985] (Supp.) SCC

410.

Now let us formulate the impelling circumstances

attending the case and examine whether the cumulative effect

of those circumstances negatives the innocence of the

respondent and serves as a definite pointer towards his

guilt and unerringly leads to the conclusion that within all

828

human probability the offence was committed by the

respondent alone and none else.

The circumstances which are established as having

closely linked up with one another are as follows:

(1) The motive for the occurrence.

(2) The room in which this tragic and pathetic

incident took place was in the exclusive

possession and occupation of the respondent and

the deceased;

(3) The occurrence had happened in the wee hours of

12th October 1971 when no body would have got an

ingress into the room wherein the husband and

wife admittedly slept.

(4) The evidence of PW-2, swearing that the respondent

was found in the scene house at 7.15 a.m.

(5) The presence of the respondent inside the room

wearing night-gown when PW-4 went to the scene

room.

(6) The position of the dead body lying on the ground

within a cot frame with extensive burns except on

the back and lumbar regions.

(7) The presence of the traditional external visible

features of strangulation as well as the internal

injuries establish the use of violence.

(8) The positive opinion of PW-1 who conducted the

autopsy on the dead body of the deceased, stating

that the death was due to strangulation and the

burns were post-mortem.

(9) False plea of alibi and the conduct of the

respondent feigning innocence.

(10) The intrinsic value of the inviolable and

impergnable evidence let in by the prosecution completely

and conclusively establishing the links of the entire chain

of circumstances as a whole and not in fragments proving the

guilt of the respondent/accused.

829

While the learned counsel appearing for the appellant

strenuously contended that the cumulative effect of all the

pieces of circumstantial evidence brought on record by the

prosecution justifies the conviction of the respondent, Mr.

R.L. Kohli, the learned senior counsel appearing for the

respondent took much pain in advancing his argument that the

circumstances relied upon by the prosecution are not

clinching the issue; that the presence of the respondent at

the scene house at the time of the occurrence is disproved

by CWs 1 and 2 and also by the evidence of PWs 6 and 9 who

have not supported the prosecution case and that the

symptoms found by PW-1,the Medical Officer are not in

support of the conclusion arrived at by PW-1 whose opinion

is only attributable to his inexperience or negligence. In

support of his submission, with regard to the medical

evidence, the learned counsel drew our attention to some

passages from the test book of Taylor's Medical

Jurispurdence and Modi's Medical Jurisprudence, about which

we will deal infra.

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We have already elaborately discussed the evidence relating

to the motive part of the occurrence and found that the

respondent who had married the deceased as his second wife

had not only entertained a suspicion about her fidelity, but

also was repelling the conduct of the deceased for her

finding fault with his activities, affairs and association

with his friends.

It is not in dispute that on the ill fated night both

the husband and wife (that is the respondent and the

deceased) took their bed in the room, which was in their

exclusive use and that barring the duo no one was in their

room and that the deceased was found dead in the early

morning notwithstanding the reasons for her death. The

case of the prosecution is that the respondent caused

several anti-mortem injuries to the deceased and ultimately

strangulated her resulting in her death. It was only

thereafter the respondent sprinkled kerosene on the dead

body and burnt it to cause disappearance of the evidence of

the offence of murder in order to screen himself from the

legal punishment and that all the burn injuries were only

post-mortem injuries.

Seriously opposing the prosecution version, the

respondent has abjured his guilt stating that he and his

wife were having a happy marital life occupying and using

the room allotted to them in the first floor and that the

deceased who was a woman of an arrogant, obstinate and

irritable

830

temperament with frequent fluctuations of mood was

displeased with their mother-in-law, that is respondent's

mother, who did not like her independent way of moving in

the family and frequently visiting cinema halls. The

deceased had made complaints not only against his mother-in

-law, but also against her unmarried brother-in-law stating

that her brother-in-law misbehaved with her, and that she

was writing letters to PWs 2 and 7 at the instance of PW-7,

who had once in his letter addressed her as `Dear Kamlesh'

and incited her to write letters accusing the respondent.

It is the further case of the respondent that in the early

hours of 12.10.1971 he at the request of PW-9 paid a visit

to one Shashi's house as the latter was suffering from some

ailments and that he returned at about 7.45 or 8.00 a.m. to

his house and came to know about this incident. According

to him, his brothers poured water into the room to

extinguish the fire. It is his further case that the

brothers of the deceased came to his house only at 11.15

a.m., that too on his telephonic information to them. He

continues to state that the deceased used to feel pain

during the period of menses, that he took her on 6.10.1971

to Dr. Mrs. Anstin and that on the advice and prescription

given by the Doctor Ext. Ka-9 the deceased was put on

medicine containing barbiturates, the traces of which were

found in her visra. As regards the medical evidence he has

given an explanation that the bones could have been

fractured due to excess heat and the death could have been

on account of shock due to the burn injuries and that PW-1,

the Medical Officer has given false evidence on account of

some heated exchanges between him and PW-1 over an election

held among the medicos which took place about 2 or 3 days

before the occurrence. The totality of the defence of the

respondent is that the deceased herself had created a hell

of her own in the family and ultimately committed suicide

by pouring kerosene on her and setting fire.

The above defence version of the respondent is clearly

borne out from his statement given before the Trial Court on

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6.10.1972.

We shall at the threshold proceed to deal with rival

contentions of the parties regarding the cause of death

which is a vital link in the chain of circumstances serving

as a definite pointer tending to prove the guilt or

otherwise of the respondent. PW-1 who conducted necropsy on

the body of the deceased has found the positive symptoms of

suicide and the fracture of the 6th and 7th ribs and the

right cornua of the hyoid bone as well as the presence of

clotted blood on the right side of the neck in an area of

831

4cms. X 3cms. He also found the congestion of larynx,

trachea and both the lungs. It is his definite opinion that

the death was due to strangulation and the fractures on the

body were ante-mortem. In the supplementary report (Ext. Ka

2), he has given his opinion that the burns were post-

mortem. As regards the time of death he has stated in the

cross-examination that the death could have occurred on

12.10.1971 between 7.00 A.M. and 8.00 A.M.. However, on re-

examination he clarifies his answer stating that the

probable time of death was subject to a margin of 2 to 4

hours on either side. Though we have extracted the evidence

of the Medical Officer in the preceding part of this

judgment, we would like, at the risk of repetition to

reproduce the evidence of PW-1 hereunder for better

appreciation of his opinion with regard to the cause of

death:

"Hands were clenched. Eyes and conjunctive were

congested and eye-balls were prominent. Blood

mixed forth was coming out from nostrils. Tongue

was swollen and protruding and was compressed

between the teeth..................................

...................................................

Sixth and seventh ribs were fractured. The right

cornua of hyoid bone was fractured."

Though PW-1 has been subjected to incisive and

searching cross-examination and questioned with reference to

various Text Books on Medical Jurisprudence, nothing

tangible has been brought out to discredit the testimony of

PW-1. The cross-examination was directed suggesting that

the fracture of the hyoid bone and the fracture of the ribs

could have been due to the intensive heat of the fire and by

mishandling of the body when it was taken to downstairs. In

fact, PW-1 has withstood the cross-examination and affirmed

his conclusion that the death was only due to strangulation

and the burn injuries were post-mortem. He based his

opinion on the innumerable symptoms found on the dead body,

such as the internal contusions, non-vomitting which is

usually the symptom in a case of burning of a victim while

alive and the involuntary non-movements of the deceased even

under the agony of fire etc. etc. The learned defence

counsel drew our attention to certain hypothetical opinions,

given by PW-1 in the cross-examination, the report of the

Chemical examiner, revealing the presence of the traces of

barbiturates in the visra and the pugilistic posture of the

dead body as revealed from the photographs of the dead body

marked as Exts. A, B,C and D and contended that the cause of

death could not have

832

been due to strangulation, but it was due to suicide by

pouring kerosene and setting herself on fire and the

fractures of the bones and other symptoms found on the body

should have been due to the intensity of the heat and that

the evidence of PW-1 supporting the prosecution version

cannot and should not be accepted. According to the learned

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counsel, the erroneous opinion, expressed by PW-1 on the

available data exposes his inexperience or negligence. In

support of his argument, he relied upon certain passages

found in the textbooks on Medical Jurisprudence by renowned

authors. In Modi's Medical Jurisprudence and Texicology

(21st Edition) at page 93 the following passage is found:

"When exposed to very high temperature

characteristically curved fractures may be produced

in long bones and skull. A bone becomes so brittle

and friable on prolonged exposure of fire victim to

such intense heat that it is readily fractured

incident to transport of body or its being moved or

under examination. A hyoid bone may similarly

break on manipulation."

In Taylor's Principles and Practice of Medical

Jurisprudence', a detailed opinion is recorded by giving the

symptoms for determining whether the burns were sustained

before or after the death of a victim which are of

considerable medical legal importance in cases of death by

fire. After examining the evidence on record in the light

of the opinion of the authors of the two textbooks on

Medical Jurisprudence, we are unable to agree with the

submissions of the defence counsel that all the symptoms

found in the dead body could have been due to the intensity

of heat of the fire. In fact, the opinion in the Taylor's

Medical Jurisprudence is rather in support of the

prosecution case than that of the defence, which opinion

reads thus:

"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."

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. According to the defence, water was poured to

extinguish the fire inside the room, but the medical

evidence shows that there was no blister on the body of the

deceased, which

833

fact disproves the defence version. Moreover, all external

and internal symptoms in addition to the fractures

unmistakably go to show that the death was by homicidal

violence, but not due to suicidal one. We have no

compunction in holding on the materials available that the

death could have been only due to strangulation as opined by

PW-1. In fact, the Trial Court after examining the evidence

in detail has recorded its finding thus:

"The result, therefore, is that Smt. Kamlesh died

an unnatural death as a result of violence and was

in fact murdered and did not commit suicide."

Though the High Court has acquitted the respondent on

the ground that "the circumstances as proved are not

incompatible with innocence of the appellant", it has agreed

in toto with the finding the Trial Court so far as the cause

of death is concerned and the finding of the High Court

reads thus:

"We are, therefore, inclined to accept the

statement of Dr. B.G. Mathur that the death of the

deceased was due to strangulation and that she was

set to fire after her death."

The High Court has rejected the submissions of the

defence relating to the cause of death similar to those

addressed before us as devoid of any substance. There are

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two important features appearing from the medical evidence

which would go in support of our conclusion. They being:

(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 motion-less. A careful scrutiny of the

evidence 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 case and from that no adverse

inference could be drawn.

As regards the motive, the High Court has held that

there was nothing to aggravate the situation on the day of

the occurrence for the

834

respondent to take this extreme measure of putting her to

death. This reasoning of the High Court is quite

inconceivable, for the simple reason that there could be no

evidence as to what had happened during the night of 11/12th

October 1971 as the victim herself is dead. However, as we

have discussed in the earlier part of this judgment, all was

not well with the spouses and their strained relationship

had been gaining momentum day by day and ultimately on the

ill fated night it had culminated to this occurrence.

The next point for our consideration is whether the

respondent was present in the house in the early morning of

the day of occurrence or whether he had gone out of the

house to treat a patient. In other words, whether the

defence of alibi is true or not. PW-2 states that he saw

the respondent even at 7.15 a.m. when he had been to the

scene house carrying snacks in a basket. PW-4, the Head

Constable was the first official to go to the scene house by

chance on seeing a crowd which was attracted by the acrid

smoke, emanating from the bed room. He testifies to the

fact that at the time when he went to the house at about

8.00 a.m. he found the respondent standing inside the room

in his night dress and quarrelling with PW-2 over the death

of the deceased. PW-3, the Superintendent of Police,

arrived at the scene at about 9.15 a.m. and found the

respondent present. Thus, the evidence of PWs 2 to 4

positively establishes the fact that the respondent was very

much present in the scene house, even in the early morning,

falsifying his plea of alibi.

The case of the respondent that PW-2 and his brother

arrived at the scene only at 11.15 a.m., that too on his

information is belied by the testimony of PWs 4 and 10. The

evidence of PW-4 is that PW-2 and his brother were found in

the scene house even at 8.00 a.m. PW-10 has deposed that

baskets containing snacks and sweets were lying scattered in

the courtyard even at 8.30 a.m. which basket is stated to

have been brought by PW-2.

If the respondent had returned from home after paying a

visit to his patient by 8.00 a.m., as he now claims, he

would not have been found in his night dress. The very fact

that he was standing in his night dress at 8.00 a.m.

demonstrably shows that the respondent had not left the

house on his professional visit but he was very much present

in the house. PW-6 (who was in service under the respondent

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for 4 year) and PW-9 who claims to

835

have taken the respondent to attend on one Shashi have been

treated as hostile witnesses. CWs 1 and 2, who support the

defence theory are none other than the mother and brother of

the respondent whose testimony is highly tainted. On a

careful scanning of their evidence, we hold that no safe

reliance could be placed on their testimony especially in

view of the overwhelming circumstantial evidence falsifying

their statements supporting the plea of alibi.

On an overall survey of the evidence, we are in full

agreement with the observation of the Trial Court, holding

that "his explanation that he was not present in the the

house at the time is patently false". The High Court has

placed much reliance on the evidence of not only CWs 1 and 2

but also of the hostile witnesses PWs 6 and 9 for holding

that the respondent was not in the house in the early

morning, which finding of the High Court is absolutely

untenable and in utter disregard of the evidence.

Even though we are not finding the respondent guilty

solely on his false explanation, yet that explanation

assumes much significance because it is for the respondent

to come forward with an acceptable and plausible explanation

explaining the circumstances under which the deceased had

met with her end, since, in our considered opinion, the

respondent was in the company of his wife on the previous

night and was found in the bed room in the early morning.

Though the respondent has deliberately feigned

ignorance and incredibly denied his complicity, the

overwhelming persuasive circumstances attending the case and

the crucial inculpatory evidence bear chilling testimony

unmistakably proving the gruesome offence of murder and its

diabolical execution and unerringly establishing the guilt

of the respondent beyond all reasonable doubts.

For all the reasons stated above, we, on our

independent appraisal and evaluation of the evidence in

accordance with the principle laid down in Chandra Mohan

Tiwari v. State of madhya Pradesh, JT(1992) 1 SC 258

unhesitatingly hold that the conclusion arrived at by the

Trial Court is logical, tenable, and reasonably sustainable

and that the High Court after holding that the death of the

deceased was homicidal has gone wrong in recording the

impugned order of acquittal on erroneous and incredulous

reasons. Hence the judgment of the High Court has become

liable to be set aside.

836

Mr. Kohli, the learned counsel finally made a fervent

but inexorable plea, submitting that since the occurrence

took place in the year 1971 and that more than 14 years have

now elapsed since the delivery of the judgment by the High

Court in October 1977, this court be pleased not to disturb

the finding of acquittal at this length of time. We gave

our anxious consideration to the above submission, but we

feel that this plea has to be summarily rejected when the

facts and the impelling circumstances surrounding the

present case cry for justice which in turn demands for

awarding proper punishment according to law. In our view,

if the impugned judgment of acquittal reversing the well

reasoned judgment of the Trial Court, convicting the

respondent is affirmed, it will be nothing but a mockery of

justice and will also amount to prepetration of gross and

irreparable injustice. Moreover, when a judgment appealed

against suffers from illegality or manifest error or

perversity, warranting an interference at the hands of an

Appellate Court in the interest of justice on substantial

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and compelling reasons, the mere delay in the disposal of

the said appeal will never serve as a ground for non-

interference and on the other hand, the Appellate Court is

duty bound to set at naught the miscarriage of justice.

In the result, we set aside the judgment of the High

Court by allowing the State appeal and restore the judgment

of the Trial Court convicting the respondent under Section

302 and 201 IPC and sentencing him to imprisonment for life

and rigorous imprisonment for 3 years respectively with a

direction that the sentences are to run concurrently.

In the result, the appeal is accordingly allowed.

V.P.R. Appeal allowed.

837