Full Judgment Text
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PETITIONER:
GANESHLAL
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT10/04/1992
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KASLIWAL, N.M. (J)
CITATION:
1992 SCR (2) 502 1992 SCC (3) 106
JT 1992 (2) 592 1992 SCALE (1)811
ACT:
Indian Penal Code, 1860:
Sections 34, 201, 203 and 302-Delhi of wife due to
severe burns-Husband pleading innocence-Claiming it to be
suicide-Circumstantial evidence complete and consistent that
husband and his family members committed the offence-Conduct
of accused-Unnatural, indifferent and hard-hearted-All
accused acquitted by trial court-High Court reversing and
convicting the husband alone-Conviction and sentence-
Validity of.
Criminal Procedure Code, 1973:
Section 313-Death caused while in custody of accused-
Plausible explanation for cause of death-Need to be given in
the statement.
Section 161:
Criminal trial-Delay in recording statement of witness-
Whether and in what circumstances renders the evidence
doubtful-Need for scanning the evidence carefully.
HEADNOTE:
At the residence of the appellant, his wife was found
dead with severe burns. The appellant, his parents, sister,
maternal uncle and the uncle’s daughter were charged with
the offence of murder and tried under section 302 read with
section 34 and sections 201 and 203 read with section 34
IPC, though initially the case was registered under section
306 read with section 34 IPC.
The Trial Court acquitted all the accused. On appeal
the High Court convicted the appellant alone under sections
302 and 201 IPC and sentenced him to undergo rigorous
imprisonment for life and three years imprisonment
respectively, against which the appellant has preferred the
present appeal.
503
On behalf of the appellant, it was contended that it
was a case of suicide as no kerosene was found in the house
except in the room where the death occurred; that the door
to the room from stairs was not closed from outside and in
case of murder, the deceased could have run away from the
room opening the latch; that the deceased was determined to
commit suicide for humiliation caused to her on account of
her not being allowed to go to the house of her sister; and
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that there were no signs of external injuries. It was also
contended that since the prosecution all through proceeded
on the assumption that the appellant abetted suicide,
suddenly it could not be said to be a case of murder.
It was also contended that since all the other accused
have been acquitted, the appellant could not be convicted
under section 302 IPC.
Dismissing the appeal, this Court,
HELD : 1. There is no evidence or even suggestion that
the deceased had any tendency to commit suicide or affected
with any psychosis for committing suicide. It is also clear
from the evidence that the door was not bolted from inside.
Unless the doors from outside were closed and made the
victim alone remain in the room, the smoke would not have
confined to the room. There is no evidence of any struggle
by her as there was no injuries to her back or feet or
rubbing the ground. Kerosene tin was found and there were
no signs of kerosene sprinkled in the room. The instinct of
self preservation at the height of agony must lead in an
attempt to put out the flames at least with hands. While
the deceased was drying the clothes, her palms were wet,
somebody must have come from behind, caught hold of her
palms and another her legs, and she was made unconscious.
The means used to make her unconscious is not available
either from medical evidence or circumstances. She was made
to lie down in a supine position on the ground. Thereafter,
kerosene appears to have been poured from the tin brought by
someone and set her on fire. It is indisputable that
kerosene smell was found in the room and she died due to
burns. The walls and ceiling became blackish which would
clearly show that a large quantity of kerosene was poured on
her after she became unconscious due to which her clothes
were soaked of kerosene. The witnesses have also seen from
outside for about 10 to 20 minutes that smoke was coming
form the room. These circumstances clearly establish that
the death was not due to suicide, but one of homicidal.
[508G, H; 509A-E]
504
2. The normal ordinary human conduct would be that when
one of their inmates was in flames, they would have made
every endeavour to save her life, if it were a case of
suicide, and call the people to come to their rescue to save
her life or at least would have sought first aid from PW-6,
a compounder, who is next door neighbour, to save the life
of the deceased. No such attempt was made; nor even
attempted. On the other hand the appellant’s earliest
attempt was to misguide the people that the deceased died
due to short circuit, which claim was falsified from the
evidence of PW-10, Electrical Engineer. [513G, H;514A]
3.1. The evidence on record is not sufficient to arrive
at an immediate motive to commit the crime and the case
depends on circumstantial evidence. But in circumstantial
evidence also when the facts are clear it is immaterial that
no motive has been proved. Men do not act wholly without
motive. Failure to discover the motive of the offence does
not signify the non-existence of the crime. The failure to
discover motive by appropriate clinching evidence may be a
weakness in the proof of the prosecution case, but it is not
necessarily fatal as a matter of law. Proof of motive is
never an indispensable factor for conviction. [510D-F]
3.2. The evidence of witness recorded at late stage
must be received with a pinch of salt. Delay defeats
justice. But each case has to be considered on its own
facts. In the instant case, the High Court is well
justified in placing reliance on the evidence of PW-6. In
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fact material part of his evidence was not subjected to
cross examination, except suggesting that he was deposing
falsely. Under these circumstances he is a truthful and
reliable witness. His evidence clearly show that neither
the appellant, nor any member of the family though were
present in the house, attempted to save the deceased but
were simply sitting in the first floor unmoved by even the
ghastly murder and the appellant was guarding at the grill
gate preventing the people from entering into the house
falsely stating that there was short circuit. This evidence
receives corroboration from the evidence of PW-7 and PW-8.
[512C-E]
3.3 In his examination under section 313 Cr. P.C., the
appellant admitted that A-6 went to the police station and
gave FIR stating that the deceased caught fire while she was
handling the wet clothes for drying, due to short circuit,
and that this information was conveyed by the appellant
himself. This admission is not only a relevant fact under
section 8 of
505
Evidence Act as res gestae but a most important circumstance
against the appellant. The indifferent and hard hearted
conduct are also important circumstances. It is settled law
that the conduct of an accused in an offence previous and
subsequent to the crime are relevant facts. Absence of any
attempt to save the life of the deceased while she was
burning and was charred to death, the conduct of the accused
in not attempting to give any medical aid, the conduct of
the appellant immediately after the death and falsely
proclaiming that there was short circuit implying to scare
away the people from attempting to save the deceased - these
are most telling and relevant crucial fact apart from
repulsive inhuman conduct. The false plea of suicide is yet
another relevant fact. When the death had occurred in the
custody of the accused the appellant is under an obligation
in section 313 Cr. P.C. statement at least to give a
plausible explanation for the cause for her death. No such
attempt was even made except denying the prosecution case.
These facts completely are inconsistent with the innocence,
but consistent with the hypothesis that the appellant is a
prime accused in the commission of gruesome murder of his
wife. The circumstantial evidence is complete and
consistent with the only conclusion that the inmates alone
committed the crime and the appellant was one among them.
The absence of an appeal against acquittal of A-1 and A-3 to
A-6, all of them or who among them shared common intention
with the appellant is obviated. The appellant is the
principal perpetrator of the crime or one among the accused
who shared common intention to murder the deceased. The
conviction of the appellant is therefore altered to one
under section 302 read with section 34 IPC. Accordingly,
appellant is convicted for the murder of his wife and is
sentenced to undergo rigorous imprisonment for life. The
conviction under section 201 IPC is set aside. [514C-H;
515A, B]
Atley v. state of U.P., AIR 1955 SC 807; Balakrushna
Swain v. State of Orissa, AIR 1971 SC 804, relied on.
4. The Sessions Court framed the charges under section
302 read with section 34 IPC. Thus, the fact of registering
the case initially by the local police under section 306 IPC
loses all significance. It cannot be disputed that the
Sessions Courts was fully competent to frame charges under
section 302 read with section 34 IPC. At the trial, if the
evidence adduced by the prosecution is sufficient to bring
home the offence under section 302 IPC, the conviction
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thereon does not become illegal. [510B, C]
506
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
732 of 1991.
From the Judgment and Order dated 30.10.91 of the
Bombay High Court of Judicature in Criminal Appeal No. 215
of 1987.
U.R. Lalit, R.K. Jain, Makrand D Adkar, Jamshed Bey and
Mrs. V.D. Khanna Advocates for the Appellants.
V.V. Vaze and S.M. Jadhav for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. This appeal is under s.2 of Supreme
Court Enlargement of Criminal Jurisdiction Act, 1970. The
appellant along with his parents, sister, maternal uncle and
uncle’s daughter were charged for the offence under s.302
read with s.34 and ss.201 & 203 read with s.34 I.P.C. of the
murder of his wife Kanchana. In S.T. No. 125/84, the Addl.
Sessions Judge, Akola by judgment dated February 10, 1987
acquitted all of them. On appeal, the appellant alone was
convicted under s.302 and s.201 IPC and sentenced to undergo
rigorous imprisonment for life and three years respectively
by judgment dated October 30, 1991 of the High Court of
Bombay, Nagpur Bench, Nagpur.
The material facts that lie in short compass are thus :
Kanchana was married to the appellant in the year 1975.
In course of time the appellant’s father became rich, while
her parents’ family remained poor leading to constant
humilation. The sister of Kanchana, Vanmala, PW-5, was also
married in the same village, Mangrulpir. On September, 3,
1983, PW-5 went to the deceased family at about 10.00 to
10.15 a.m. and invited in her house for which mother-in-law
of the deceased and Kanchana to attend "Teej" function in
her house for which the mother-in-law refused to accept the
invitation and also did not permit Kanchana to attend the
function which resulted in exchange of words etc. When she
was coming out, she heard abuses against the deceased and
somebody being beaten. After extending invitations to two
or three people when she came back home and was entering
into her house, PW-9, her maid servant, came running and
told her that Kanchana was dead. Thereafter she gave
information to her father, PW-4, and others at Amravati. A-
6, maternal uncle of the appellant, went to the Police
Station and lodged First Information
507
Report, Ex-73, that while Kanchana was drying wet clothers
on the top floor, there was short circuit in the house
resulting in her death. Mohanlal PW-4, on receipt of the
news reached the appellant’s house at Mangrulpir at about
4.00 p.m. On seeing the condition of the dead body he too
laid complaint of murder. In the meanwhile the police
registered the crime. The police reached the spot at about
12.50 p.m. A.S.I. Jadhao, PW.14 along with Head Constable
Sharma, PW-11, conducted investigation. He drew the
Panchanama, Ex-66, the scene of offence, attested by PW-7
and another. He recovered the burnt articles, ornaments
etc. and sent the body for autopsy. It was further
investigated by S.I., PW-15. Subsequently, it was entrusted
to the C.I.D. and PW-16, Kshir Sagar conducted the
investigation and laid the chargesheet. It may be relevant
to state at this stage that initially the crime was
registered under s. 306 read with s.34 I.P.C. Later it was
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converted and the charges were framed by the Sessions Court
under s.302 read with s.34 I.P.C.
The prosecution placed reliance on the evidence of PW-4
and PW-5 to prove motive for the crimes . PW-6, the
Compounder and PW-8, Tea Stall owner, PW-9, maid servant of
PW-5 to prove the conduct of the accused together with the
medical evidence and also chemical examiner’s report. It
also relied on the report Ex. 73 lodged by A-6. The case
rests on circumstantial evidence. The circumstances relied
on by the prosecution are as follows :
The motive, namely the affluent circumstance of the
accused party, the relative poor financial position leading
to ill treatment of Kanchana. The treatment meted out to
Kanchana in the presence of Vanmala, followed by beating.
PW-9, maid servant informing of the death. PW-6 spoke of
the appellant’s conduct, corroborated by PW-8, of standing
at the grill gate, which is the only entry into the house an
preventing the people to go into the house stating that
there was short circuit and to save them; indifferent
attitude of the in-laws and other inmates and keeping mum,
their leaving the deceased alone in the third floor in
flames; emitting of kerosene smell; and their non-
disclosure on inquiry for the cause of the death. PW-10,
the Engineer, Electricity Department spoke that there was no
short circuit; the conduct of the appellant and also the
first information report given by A-6, the medical evidence
that the death was due to shock and suffocation. The
chemical analyst report and evidence of scene of offence by
PW-7.
508
Strenuous attempt was made in the grounds of appeal and
also vehemently contended by Shri U.R. Lalit, the learned
Senior counsel for the appellant, that one of the Judges
(Justice A.A.Desai) who decided the appeal, argued against
the appellant as an Asstt. Govt. Pleader and despite having
been brought to his notice, the learned Judge disposed of th
appeal suggesting, thereby, that the appellant was not meted
out fair treatment. We find no force in th contention. It
is true that the record now placed before us would show that
way back in 1984 as Asstt. Govt. Pleader, Shri Desai
appeared against the appellant in a bail application and
other proceedings. Might be that the learned Judge had
forgotten about his appearing against the appellant. It
might also be possible that it was not brought to his notice
when the Bench heard the appeal. Finding that the matter
went against the appellant, he turned round and desperately
raised the contention. However, to remove the feeling of
injustice due to above factor and to satisfy ourselves of
the merits, we have heard the appeal as if it is a first
appeal against the judgment of the Sessions court. The
appellant engaged Shri U.R. Lalit and Shri R.K. Jain, Senior
Advocates, apart from a band of Junior Advocates assisting
them. We ourselves minutely considered the entire evidence
afresh and reached our own independent conclusions.
The crucial question in this case is whether Kanchana
died due to suicide or homicide. The situs is the third
floor of the house of the appellant. The occurrence took
place at 10.30 a.m.. No outsider had access into the house
that too except through the grill gate in the ground floor.
In the first floor, parents and sister of the appellant
live. The second floor was in the occupation of he
appellant and the deceased and the third floor consists of
one room and open varandah. The occurrence has taken place
in the room on the third floor. Thus it would be apparent
that it is a custodial death. The Doctor specifically stated
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that she died due to suffocation and shock by inhaling
Carbonmonoxide. It would thus be clear that the door was
closed at the time when this occurrence had taken place.
There is no evidence or even suggestion that the deceased
had any tendency to commit suicide or affected with any
psychosis for committing suicide. It is also from the
evidence that the door was not bolted from inside. Unless
the doors from outside were closed and made the victim alone
remain in the room, it would be difficult to the smoke
confining to the room. From evidence it is clear that the
deceased went to the top floor to dry up wet clothes. The
deceased was of a weak constitution. Her arms
509
and feet were not burnt. She was found lying on back in a
supine position. Her back and clothes on back were not
burnt. There is evidence on record that there was a bucket
with water and wet clothes in the room. There is no
evidence of any struggle by her as there are no injuries to
her back or feet or rubbing the ground. Kerosene tin was
found and there are no signs of kerosene sprinkled in the
room. The instinct of self preservation at the height of
agony must lead in an attempt to put out the flames at least
with hands. Thus it would appear that, while the deceased
was drying the clothes, her palms were wet, somebody must
have come from behind, caught hold of her palms and another
her legs, and she was made unconscious. The means used to
make her unconscious is not available either from medical
evidence or circumstances. She was made to lie down in a
supine position on the ground. Thereafter, kerosene appears
to have been poured from the tin brought by someone and set
her on fire. It is indisputable that kerosene smell was
found in the house. The walls and ceiling became blackish
which would clearly show that a large quantity of kerosene
was poured on her after she became unconscious due to which
her clothes were soaked of kerosene. After fire was lit
there was heavy smoke screen. That will be visible when we
find that the roof and walls became blackish. The witnesses
have also seen from outside for about 10 to 20 minutes that
smoke was coming from the room. These circumstances clearly
establish that the death was not due to suicide, but one of
homicide. The contention that no kerosene was found in any
other parts; the doors to the room from stairs was not
closed from out side in case of murder she should have run
away from the room opening the latch; she was determined to
commit suicide for humiliation caused to her and PW.5
Vanmala her sister in not allowing her to go to PW.5’s house
and that there were no signs of external injuries and,
therefore, the death was due to suicide is fallacious and
the High Court has rightly negatived the same.
The next contention that the prosecution all through
proceeded with the assumption that the accused abeted
suicide, punishable under s. 306 IPC and that, therefore, it
is not a case of murder has no substance.
That apart, it appears that the investigation made by
the local police initially did not proceed on the correct
lines and no sincere effort appears to have been made to
collect the evidence of the material facts. The
investigation was later on entrusted to the C.I.D. on
10.11.1983 in pur-
510
suance of an order dated 3.11.1983 passed by superior
officers. PW. 16 Sri Kshirsagar, Inspector C.I.D. conducted
the investigation and recorded the statements of some more
witnesses. Ultimately he handed over the charge of
investigation to Mr. Deshpande (PW.18), Dy. S.P.-C.I.D.,
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Crimes on 16.12.1983. Mr. Deshpande also recorded the
statements of some more witnesses and collected the other
material evidence and after verifying and careful
consideration of all the evidence, he added the charge under
s.302 I.P.C. Thereafter charge was submitted in the Court
of Judicial Magistrate, First Class, Mangrulpir on 18.9.1984
who committed the case to the court of Session Judge, Akola
for trial. The Sessions Judge, Akola for trial. The
Sessions Court framed the charges under s.302 read with s.34
I.P.C. Thus, the fact of registering the case initially by
the local police under s. 306 I.P.C. loses all significance.
It cannot be disputed that the Sessions Court was fully
competent to frame charges under s. 302 read with s. 34
I.P.C. at the trial, if the evidence adduced by the
prosecution is sufficient to bring home the offence under
s.302 I.P.C., the conviction thereon does not become
illegal.
It is next contended that the parents, sister, maternal
uncle and uncle’s daughter, A-1, A-3 to A-6 having been
acquitted the appellant cannot be convicted under s.302
I.P.C. The question therefore, is whether it is the
appellant alone who has committed the offence or parents,
sister and two others also are participis criminis. It is
true as contended for the appellant that the evidence on
record is not sufficient to arrive at an immediate motive to
commit the crime and the case depends on circumstantial
evidence. But in circumstantial evidence also when the
facts are clear it is immaterial that no motive has been
proved. Men do not act wholly without motive. Failure to
discover the motive of the offence does not signify the non-
existence of the crime. The failure to discover motive by
appropriate clinching evidence may be a weakness in the
proof of the prosecution case, but it is not necessarily
fatal as a matter of law. Proof of motive is never as
indispensable factor for conviction. In Atley v. State of
U.P., AIR 1955 SC 807 at 810 this court held that where
there is clear evidence that the person has committed the
offence, it is immaterial where no motive for commission of
the crime has been shown. Therefore, even in the case of
circumstantial evidence, absence of motive which may be one
of the strongest links to connect the chain would not
necessarily become fatal provided the other circumstances
would complete the chain and connect the accused with the
commission of the offence, leaving no room for reasonable
doubt, even from the proved circumstances. Therefore, the
511
evidence of PW-4 and PW-5 partly with regard to the motive
may not be sufficient to bring home the strong immediate
motive. But the evidence of PW-5, Vanmala, that on the
fateful day, she went to her sister’s house situated at a
distance of 40 to 50 ft. from her house and that she
extended invitation to Kanchana and Kanchana’s mother-in-law
to attend the "Teej" ceremony in her house was not disputed
in the cross examination. It was around 10.00 to 10.15 a.m.
It is not necessary to dilate the conversation for refusal
to attend the ceremony but suffice to state that the
appellant was present at that time. When Vanmala came down
from the first floor, she heard exchange of words and
somebody being beaten. After extending invitation to some
people when she returned home, her maid servant, PW-9, after
some time came and told her that her sister died. From her
evidence in this behalf, there is no contradiction, but
there is an omission of hearing exchange of words and some
body being beaten, in her statement recorded under s.161 Cr.
P.C. Giving allowance to omit this part of the evidence i.e.
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exchange of words and hearing the beating of somebody, the
fact remains that at 10.30 a.m. Kanchana died. It is
established from evidence of Vanmala, PW.5 that she saw her
sister Kanchana alive at about 10 to 10.15 a.m. in the
company of her husband, in-laws, sister-in-law in the house
and within few minutes thereafter she was reported dead
while in the house solely occupied by the accused appellant
and his family members.
Thereafter we have the evidence of PW-6, Moti Ram, who
admittedly is a Compounder in Dr. Chitlange Nursing Home,
which is situated adjacent to the house of the appellant.
Therefore, he is a natural witness. It is his evidence that
at about 10.30 a.m. he heard the voice of the appellant
stating "kakaji close down" "kakaji close down". The
appellant was at the grill holding it. It is already stated
that the grill is the gateway into the house and to the
stair case. He went to the appellant’s house; the appellant
prevented entry into the house; PW-6 pushed him aside and
went inside the house. The appellant’s parents, sister and
A-5 were in the first floor. When he enquired, they did not
disclose anything when asked for, specifically the mother of
the appellant also did not speak anything. Only his father
said that Kanchana was burning. When PW.6 went to the third
floor, he saw Kanchana burning, having no clothes on her
person and she was in flames and her thighs were burning.
He smelt kerosene and thereafter he went away. It is true
that there was a delay of nearly 21/2 months in recording
his statement but it goes explained as the investigation did
not
512
proceed in the desired lines initially and only after PW.16
took over the investigation, he recorded the statement of
PW.6. The dispensary used to open by 10.00 a.m. and his
presence is natural. He has no axe to grind against the
appellant or any of the members of his family. He is also
an independent witness. It is true that he was a Compounder
working with Doctor Chitlange, brother-in-law of PW-5.
There nothing on record nor even suggested that the family
members of PW.5 were inimically disposed towards the
accused. It was suggested to PW.5 which was admitted that
appellant’s mother visited PW.5 when she sustained an injury
which would show that both families were on cordial terms.
So PW.6 being a natural witness his evidence cannot be
doubted due to delay. It is true that this court in
Balakrushna Swain v. State of Orissa, AIR 1971 SC 804 held
that the evidence of witness recorded at late stage must be
received with a pinch of salt. Delay defeats justice. But
each case has to be considered on its own facts. In view of
the above facts we have scanned his evidence carefully. We
are satisfied that he is a truthful witness. The High Court
is well justified in placing reliance on his evidence. In
fact material part of his evidence was not subjected to
cross examination, except suggesting that he was deposing
falsely. Under these circumstances he is a truthful and
reliable witness. His evidence clearly shows that neither
the appellant, nor any member of the family though were
present in the house, attempted to save Kanchana but were
simply sitting in the first floor unmoved by even the
ghastly murder and the appellant was guarding at the grill
gate preventing the people from entering into the house
falsely stating that there was short circuit. This evidence
receives corroboration from the evidence of PW-7 and PW-8.
PW-7, Brij Lal, Panch witness stated that the grill door was
closed and door was guarded black, the walls became blakish
and the burnt clothes were smelling with kerosene. One
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basket with wet clothes was lying in the room. He also saw
kerosene tin. PW-8, Liakat Ali, in another independent
witness. He owns a tea hotel opposite just about 30 to 40
ft. from the house of the appellant. His statement was
recorded on the next day. In his evidence he stated that in
the beginning he saw smoke coming from the 3rd floor and
later he saw a crowd collected in front of the appellant’s
house. He also went there. He saw the appellant shouting
that there was an electric short circuit in the building and
was requesting the people to save them. He was standing at
the grill gate and when the witness
513
tried to enter in the house, the appellant prevented him. He
pushed the appellant aside and went inside the house. In
the first floor, he saw the appellant’s mother, sister and
father sitting. On enquiry they did not speak anything but
directed to go upstairs. When he went, he saw the body of
the deceased in the room burning. The only omission in his
statement under s.161 Cr. P.C. was regarding his asking the
mother and sister of the appellant and their directions to
go to the upstairs. He admitted that his shop belongs to
PW.5’s family. Admittedly he too had no enimity with the
appellant or his family, nor even suggested. As stated
earlier, the family of PW-5 had also no enimity. Under
these circumstances PW-8 being also an independent witness,
his evidence inspires confidence to believe him as a
truthful witness. The High Court was right in believing his
evidence. From the evidence of PW-6 and PW-8 it is clear
that the appellant was falsely exclaiming that there was a
short circuit and requesting the people to save them. At
the same time he was preventing the people from getting into
the house. They saw the appellant and other accused in the
house without attempting to save the life of Kanchana. It
may be relevant to state that the earliest version of A.6 in
Ex. 73 report given to the police was that the deceased was
drying the clothes at that time. Due to short circuit she
received shock and died. This theory is now found to be
false from the evidence of P.W.10, the Electrical Engineer.
It is also now not set up as defence even before us.
Evidence of PW.7, the panch witness, and Asstt. Sub-
Inspector, PW-14, and PW-6 and PW-8 clearly establishes that
in the room on the third floor, the deceased was seen
burning and that the door was open from outside. The
contention that the deceased had access to open another door
from inside into the staircase from the room and that it is
not a case of homocide, is false in view of the facts
narrated hereinbefore.
From this evidence it is clear that the accused
appellant and his family members were present in the house
at the time when the deceased was buring due to fire lit
after pouring kerosene on her and they made no attempt to
save her. The contention that the Doctor had stated that
the death was instantaneous and nothing was left for the
appellant and the other family members to save her, is
unacceptable. The normal ordinary human conduct would be
that when one of their inmates, namely Kanchana was in
flames, they would have made every endeavour to save her
life, if it were a case of suicide, and call the people to
come to their rescue to save her life or at least would have
sought first aid from PW-6, who is next door neighbour, to
save the life of the deceased. No such attempt was made nor
514
even attempted. On the other hand the appellant’s earliest
attempt was to misguide that Kanchana died due to short
circuit. This attempt was burried fathom deep from the
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evidence of PW.10, Elect. Engr. Then they set up the plea of
suicide. We have Ex. 73, the first information report,
immediately lodged by A-6 with the police. We need not go
into the question as to what extend the admission by a co-
accused would be used against the appellant. Suffice it to
state that in his examination under s.313 Cr. P.C., the
appellant admitted that A-6 stated that the deceased caught
fire while she was handling the wet clothes for drying, due
to short circuit. In Ex-73, it was also stated that this
information was conveyed by the appellant himself. This
admission is not only a relevant fact under s.8 of Evidence
Act as res gestae but a most important circumstance against
the appellant. The indifferent and hard hearted conduct are
also important circumstances. It was also admitted that the
walls in the room became blackish due to smoke. It is
settled law that the conduct of an accused in an offence
previous and subsequent to the crime are relevant facts.
Absence of any attempt to save the life of the deceased
Kanchana while she was burning and was charred to death,
their conduct in not attempting to give any medical aid, the
conduct of the appellant immediately after the deceased was
soaked with kerosene and litting fire after closing the door
A.6 obviously opened it after ensuring that she had died,
the appellant’s coming down and standing at the grill gate
on ground floor; the appellant shouted that uncle A.6 should
close down falsely proclaimed that there was short circuit;
implying to scare away the people from attempting to save
Kanchana. These are most telling and relevant crucial facts
apart from repulsive inhuman conduct. The false plea of
suicide is yet another relevant fact. When the death had
occurred in their custody the appellant is under an
obligation in s.313 Cr. P.C. statement at least to give a
plausible explanation denying the prosecution case. These
facts completely are inconsistent with the innocence, but
consistent with the hypothesis that the appellant is a
prime accused in the commission of gruesome murder of his
wife. The circumstantial evidence thus discussed is
complete and consistent with the only conclusion that the
inmates alone committed the crime and the appellant was one
among them.
The evidence of record does establish that more than
one would be participants to murder Kanchana. The absence
of an appeal against acquit-
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tal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai,
Premlata, Aruna and Rameshwar, all of them or who among them
shared common intention with the appellant is obviated. The
appellant is the principal perpetrator of the crime or one
among the accused that shared common intention to murder
Kanchana. The conviction of the appellant is accordingly
altered to one under s.302 read with s.34 I.P.C. The
appellant is convicted for the murder of his wife, Kanchana
under s.302 read with s.34 I.P.C. and is sentenced to
undergo rigorous imprisonment for life. The conviction
under s.201 is set aside. The judgment and order of the
High Court is confirmed with the above modification. The
appeal is accordingly dismissed.
G.N. Appeal dismissed.
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