Full Judgment Text
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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