Full Judgment Text
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PETITIONER:
MAHABIR MANDAL AND OTHERS
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT07/03/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
SHELAT, J.M.
MITTER, G.K.
CITATION:
1972 AIR 1331 1972 SCR (3) 639
1972 SCC (1) 748
ACT:
Penal Code--Murder--Death by poisoning--Tests.
HEADNOTE:
The first appellant and another were conviced under s. 302
read with ss. 34, 120B and 201 of the Penal code and two
other accusedwho were tried along with them were
convicted under ss. 120B and 201.On the materials on
record, the trial Court and the High Court foundthat the
first appellant was responsible for the death of the
deceased by poisoning.
The doctor who performed the post mortem examination on the
dead body gave evidence that the death of the deceased might
have been a normal death. He ruled out an asphyxial death
by morphine poisoning, hecause, accrording to him, there was
no indication of any of the following characteristics which
are to be found in cases of such a death: "(a) Right lung is
full of blood and left is empty (b) Lividity of faces and
fingers and nails (c) Congestion of the brain (d) Froth or
blood froth in the trachea (e) Puncti form ecchymosis in the
lungs with congestion of lung-,". He was declared hostile
and another doctor examined by the prosecution also stated
that he could not form any opinion about the Cause of death
except that death had resulted due to respiratory failure.
Confirming the conviction of the first appellant for murder
and allowing.- the appeals in part,
HELD : (i) The circumstances of the case and the evidence on
record clearly point out that the first appellant was
responsible for the death of the deceased and the death was
caused by poisoning. When there is no eye witness of the
occurrence, the court should not insist upon evidence
regarding the exact manner in which the death was caused.
Poison can be administered not only orally but also
hypodermically or intervacularly with the help of a syringe.
In the present case, the conduct of the first appellant in
removing the dead. body immediately after the death of the
deceased and the same remaining submerged in water for more
than 24 hours prevented promt post mortem examination on the
dead body. On the material, it can be said that there were
some features like the congestion of both the lungs, the
kidney, the liver and the spleen of the victim, which,
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according to the doctor were indicative of death by
respiratory failure and the same could be caused by
poisoning. Tile fact-that the heart of the deceased at the
time of post mortem examination was found to be empty would
not rule out asphyxial death as a result of poisoning. In
many cases of asphyxial death both the sides of’ the heart
are found to be full if examined soon after death but after
rigor mortis has set in, the heart is-found contracted and
empty. The fact that no poison could be detected in the
viscera of the deceased would not militate against the
conclusion that the death of the’ deceased was due to
poisoning. There ire several poisons which do not leave any
characteristic signs as can be seen on post mortem
examination. [653A-D]
640
Taylor’s Principles an Practice of Medical jurisprudence,
Twelfth Edition, p. 199; Modi’s Medical Jurisprudence and
Toxicology Seventeenth Edition pp. 125, 447; Legal Medicine,
Pathology and Toxicology, by Gonzales, referred to.
(ii) If circumstantial evidence in the absence of direct
proof is so decisive that the Court can unhesitatingly hold
that the death was as a result of administration of posion
(though not detected.) and that the posion must have been
administered by the accused person, then conviction can be
rested on it. Therefore there are no cogent grounds to
interfere with the findings of the two courts that the death
of the deceased was not natural but homicidal.
(iii) No case has been proved against two of the appellants
and their conviction has to be set aside. The rule in
section 162 of the Code of Criminal Procedure is not
applicable to statements falling within the provisions of
clause (i) of section 32 of the Evidence Act or to affect
the provisions of section 27 of that Act. But there is
nothing in the present case to show that statements made by
the two appellants to the police. on which the prosecution
relied. resulted in the discovery of any incriminating
material as may make them admissible under section 27 of the
Evidence Act. As such the aforesaid statements must be
excluded from consideration.
Anant Chintaman Lagu v. The State of Bombay , [1960] 12
S.C.R. 460 and State of M.P. v. Ramkrishna Ganapatia Limsey
JUDGMENT:
&
CRIMINAL APPELLATE JURISDICTION : Cr. A. No. 97 of 1969.
Appeal by Special Leave from the Judgment and Order dated
the 31st January, 1969 of the Patna High Court in Criminal
Appeal No. 254 of 1966.
A. S. R. Chari and D. Goburdhun, for the appellants.
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by
Khanna, J. Mahabir Mandal (58), Dasrath Mandal (24). Kasim
Ansari (30), Mahadeo Sah (60) and Kedar Nath Upadhya (28)
were tried in the court of Additional Sessions Judge
Monghyr. The learned Additional Sessions Judge acquitted
Kedar Nath Upadhya. Mahabir and Dasrath were convicted
under section 302 read with section 34, 120B and 201 Indian
Penal Code. For the offence under section 302 read with
section 34 Indian Penal Code. each of those two accused was
sentenced to undergo imprisonment for life, while for the
offence under section 201 Indian Penal. Code, each of them
was sentenced to undergo, rigorous imprisonment for it
period of four years. No separate sentence was awarded for
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the offence under section 120B Indian. Penal Code. The
sentences
641
awarded to each of the two accused were ordered to run
concurrently. Mahadeo and Kasim were convicted under
sections 120B and 201 Indian Penal Code. For the offence
under section 201 Indian Penal Code, each of these two
accused was sentenced to undergo rigorous imprisonment for a
period of three years. No separate sentence was awarded for
the offence under section 120B Indian Penal Code to Mahadeo
and Kasim. The appeal filed by Mahabir. Dasrath, Kasim and
Mahadeo was dismissed by the Patna High Court. The four
convicted accused have now come Lip in appeal to this Court
by special leave.
Mahabir accused, who was practising as a homeopathic doctor
at Jamalpur in district Monghyr, is the father of Dasrath
accused. Dasrath was studying in the final year in Medical
College, Dharbhanga at the time of occurrence and was having
house surgeon’s training in that college at the time of the
trial. Kasim is stated to be the compounder of Mahabir
accused, while Mahadeo accused was employed by Mahabir as a
servant to look after Mahabir’s field.
Indira Devi deceased. (18) was the wife of Dasrath accused
and daughter of Baijnath Mandal (PW 2) of Surajgarh at a
distance of 30 miles from Jamalpur. Indira was aged about
13 years at the time of her marriage and continued to stay
after the marriage at her father’s house for about five
years. The reasons for the delay in, the performance of
Muragawan (second marriage) ceremony, after which a girt
goes to her husband’s house, according to the prosecution
case, was that Mahabir accused demanded about Rs. 2,500 as
Dan Dahej from Baijnath PW. The amount was. however, not
paid by Baijnath. Letter dated March 29, 1962 was then
received by Baijnath from Dasrath accused wherein Dasrath
reminded Baijnath of his promise to pay Rs. 2,500 to Dasrath
so that Dasrath might obtain admission in Calcutta National
Medical College for the purpose of his further education.
Muragawan ceremony of Indira was performed in April 1962 and
Indira went to-the house of her husband and his father in
Jamalpur. A few months after that, in the month of Bhadon
1962, Baijnath took Indira to his house after receipt of a
letter for that purpose from Dasrath accused. A few weeks
thereafter Indira was taken by Mahabir accused to his house.
After Indira had stayed at the house of her father-in-law
for some time, Mahabir accused levelled allegations against
Indira that she was having illicit intimacy with his second
son Rajendra. Mahabir also sent a letter to Baijnath to
take Indira to his house in Surajgarh. Indira was
accordingly taken in the month of December 1962 to
Baijnath’s house. Mahabir after that expressed his
reluctance to take back- Indira to his house. In May 1963
the Tilak ceremony of Mahabir’s daughter as well as the
marriage of Mahabir’s youngest son Mahendra were to be
performed. Indira was not invited for these occasions from
her father’s house. Baijnath then took Indira and left her
at the house
642
of Baijnath in bringing Indira and leaving her at their
house. On June 7, 1963 Mahabir wrote a letter to Baijnath
wherein he complained that some people had set fire to the
house of Mahabir on the occasion of the marriage at the
instance of Baijnath.
The case of the prosecution further is that in August 1963
Mahabir accused went to Calcutta and met Bhai Lal Mandal (PW
18), who is a cousin and partner in hotel business of
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Baijnath PW, and asked Bhai Lal to request Baijnath to take
his daughter Indira from Mahabir’s house, because Indira was
having illicit intimacy with her husband’s younger brother
who was an engineering student. Mahabir also told Bhai Lal
that if Baijnath would not take Indira, he (Mahabir) would
give some fatal injection to Indira. Bhai Lal thereupon
sent letter dated August 8, 1963 to Baijnath in an insured
cover. Referring to the talk with Mahabir, Bhailal stated
in that letter :
"In the end, Doctor Babu told us that now he
would take his action very soon. She was the
cobra of his house. He has such an injection
in his possession that nothing will be known
and she will remain sleeping. At present I
give her one injection at an. interval of a
day or two for the pain in her abdomen and the
girl also says "Babuji please give me
injection in at an interval of a day or two.
The pain of my abdomen remains subsided with
the injection." On the same pretext he will
give her that injection also that she will not
even know about it and will depart from my
house for ever. He was saying that lie would
take that action within a month."
Indira died in the house of Mahabir accused in Mohalla Naya-
gaon in Jamalpur on the night of September 17, 1963.
Mahadeo accused earlier on that evening had been told by
Mahabir accused to sleep at the latter’s house for the
night. At about 1.30 a.m. or 2 a.m. on that night, Mahabir
accused, who is known as Doctor Sahib, awakened Mahadeo as
well as Kasim and Gobind, another servant of Mahabir.
Mahadeo the n brought a taxi driven by Kedar Nath Upadhya
accused. Mahadeo went with Mahabir accused inside the house
and saw the dead- body of Indira lying on a cot. No one
else was present in the house. The, mouth of Indira was
open and there were no apparent injuries on her person.
Mahabir and Mahadeo accused then picked up the dead body and
brought it outside the house. Gobind was also asked to
assist in the carrying of the dead body. The dead body was
then placed in the taxi on the back seat. Gobind and
Mahadeo sat below the seat by the side of the dead body,
while Mahabir and Kasim accused sat on the front seat along
with the driver. A cement bag with bricks was placed in the
boot of the taxi. The dead body was
643
then taken to Kamarganj, Ghat on the bank of Ganges at a
distance of 21 miles from Jamalpur. At the Ghat the bag
filled with bricks was tied round the waist of Indira’s dead
body. Mahadeo and Gobind took the dead body into the water
of the Ganges and threw it there in chest-deep water.
Mahabir and others then went back to Jamalpur and reached
there at 5 a.m.
Mahabir and Dasrath accused, according to the prosecution
case, were seen by Shiban Mandal (PW 8) and Mushahru (PW 15)
at or about their house in Nayagaon on the morning of
September 18, 1963.
Head Constable Suleman Khan (PW 6) was during the days of
the occurrence posted at police post Nayagaon. On the
morning of September 18, 1963 when he went to the tea
stall for taking tea,he heard from some persons about the
death of Indira and the removal of her dead body at night.
The Head Constable gave this information at 11 a.m. to Sub-
Inspector Kishori Lal (PW 2’) at Jamalpur police station.
The Sub Inspector made an entry about the information in the
station diary.
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Sub Inspector Kishori Lal then went to the house of Mababir
and found the door closed. There was no response to the
knocking at the door. Kasim and Mahadeo accused were then
sent for and were interrogated.
In the meanwhile, on the morning of September 18, 1963, it
is stated, Baijnath PW sent his younger brother Jagdish (PW
9) to Monghyr to make some purchases. Baijnath also asked
Jagdish to go to Nayagaon and meet Indira. Jagdish reached
Nayagaon at about 8 a.m. In Nayagaon Jagdish came to know
from his relative Sita Devi that Indira had died during the
previous night and her dead body had been removed. Jagdish
then hired a taxi, went to Surajgarh and informed Baijnath
about the death of Indira and the removal of her dead body.
Baijnath and Jagdish then came in that taxi to Jamalpur.
Baijnath on arrival at Jamalpur lodged report Ex. 18 at
police station Jamalpur at 2 p.m.
Sub Inspector Kishori Lal, it is further alleged, went again
to the house of Mahabir accused at about 3.30 p.m. on
September 18, 1963. Mahabir and Dasrath accused were not
found in spite of search. Outside the dispensary of
Mahabir, the Sub Inspector found lying on a table two empty
ampules of coramine, one empty phial of homeopathic medicine
on which words "Mere sd." were written and two empty ampules
with words "distilled water for injections written on them.
Those articles were seized by the Sub Inspector. Mahadeo
and Kasim accused were put under arrest, After the
interrogation of Mahadeo accused, on September 1 8, 1963 ASI
Birbhadra singh went with Mabadeo accused to a place
644
called Chandi Asthan on the bank of river Ganges and spread
a net in the river, but the dead body of Indira was not
found there. The police party then returned to the police
station. There was further interrogation of Mahadeo and
Kasim accused. Early on the morning of September 19, 1963
at about 5 a.m. ASI Birbhadra Singh accompanied by Mahadeo
and Kasim accused went to Kamarganj Ghat. A place was then point
ed by Mahadeo accused. From that place Mahadeo
accused brought out of the water the dead body of Indira. A
bag full of bricks was found tied to the waist of the dead
body. ASI Birbhadra Singh then prepared the inquest reports
and took into possession the bag filled with bricks.
Post mortem examination on the dead body of Indira was per-
formed by Dr. Hari ghankar Prasad (PW 21) on September 19,
1963 at 4.3O a.m. at sadar Hospital Monghyr. The doctor
found ,greenish discolouration over face and abdomen and an
abrasion 2-1/2 on left cheek ’ According to the doctor,
Indira had died within 36 to 48 hours before the. post
mortem examination. There was no mark of ligature or wound
on The neck. The skull and vertebrae were found to be
normal. Right lung and left lung were found congested.
Heart was normal and empty. Liver, spleen and kidney were
"normally congested". Bladder was normal and empty.
Viscera were preserved and sent to the Chemical Examiner.
According to the report of the Chemical Examiner, no poison
could be detected in the viscera of Indira.
Confessional statement of Mahadeo accused was got recorded
from Shri B. M. Rastogi magistrate on September 21, 1963.
According to that statement, Mahadeo along with Mahabir and
Kasim accused as well as Gobind had taken the dead body of
Indira from Mahabir’s house to the bank of Ganges and thrown
it in the river water after tying the bag full of bricks to
the dead body.
Mahabir, Dasrath and Kedar Nath accused absconded after this
occurrence. Mahabir and Dasrath accused surrendered in
court on September 30, 1969. Kedar accused too was
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arrested. Attempt was also made to arrest Gobind but he was
found to be absconding.
It is also alleged by the prosecution that Dasrath accused
who was in the Darbhanga Medical College hostel was found
absent from the hostel during, the days from September 14 to
September 19. 1963.
Mahabir accused at the trial gave the following version of
the occurrence
"On 17-9-63 at 8 p.m., she (Indira) died.
About 1-2 1/2 months before it, she was
seriously suffering from stomach trouble and
there was no hope for her life.
645
Baijnath lived at my house for four days and
attended her. Letter (Ext. B / 1) is proof
thereof. Four days be-fore her death, she
suffered from ordinary Influenza and she was
under my treatment. On 17-9-63 in the morning
there was remission of her fever. On that
date at about 7.45 p.m. I came back to my
house, and asked Indira’s condition. My wife
told me that she was quite well for the whole
day and that she was not feeling well for the
last 5 to 7 minutes. Thereafter I went
inside. On enquiry Indira told that she was
not feeling well. Then I began to feel her
pulse. All of a sudden she had convulsion and
she died within 4 seconds. I could not un-
derstand as to what was the cause of her
death. I am myself a doctor. There was no
necessity of beating drums (spreading news) as
to her illness."
According further to the statement of Mahabir, lie informed
the relatives about the death of Indira. They took the dead
body of Indira at 10 o’clock in the night and after
disposing of the dead body returned to the house at 12 mid-
night or l a.m. Jitan Mandal, Thakur Mandal and Mahadeo went
with Mahabir when the dead body was put in the river.
Mahabir further stated :
"I do not know Gobind. After disposal of the
dead body, we came back to our house between
12 O’clock and 10’clock in the night, Mahadeo
put the bag full of bricks on the taxi. It is
our custom either to burn or drown the dead
body, but specialty young girls are cent per
cent drowned because while burning, the
clothes are burnt and the dead body becomes
naked. Hence after putting fire in the mouth
of the dead body of a young girl the same is
generally drowned. For drowning the dead body
some heavy burden is, tied, so that the dead
body might not float, and nobody might see it
and dog or jackal might not eat."
Mahabir denied having met Bhai Lal in Calcutta and having
told him that he (Mahabir) would give a fatal injection to
Indira. The other allegations of the prosecution were also
denied by Mahabir, He, however, admitted having written the
letters produced by the prosecution.
Dasrath accused in his statement under section 342 of the
Code of Criminal Procedure stated that he was at Darbhanga
during the days of the present occurrence, and was staying
at the house of a close relative, Shri Ram Lakhan Bhagat
Advocate,, because the eldest son of Shri Bhagat was
suffering from typhoid and there was no other male member to
attend upon him. The plea of Kasim accused was denial
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simpliciter.
13-L1031 Sun.CI/72
646
Mahadeo accused in the course of his statement under section
342 of the Code of Criminal Procedure stated that Indira
died at about 8 p.m. and later on that night, Mahadeo was
awakened by Mahabir accused. Mahadeo added
"At 8 O’clock in the night after the death of
Indira, Dr. Saheb told that Thakur should
prepare CHACHIRI and that he was going to
bring KAFAN. Ladies were weeping inside the
house. Gobind was not there. It was rainy
season. At the instance of Dr. Saheb, Thakur
and myself kept bricks in a gunny bag,. Dr.
Saheb went to ask 10 or 15 persons to go with
the dead body. When he came after saying to
them, it began to rain.. At the instance of
other persons, Dr. Saheb went to bring two
taxis but only one taxi could be available.
For want of accommodation in the taxi, 1, Dr.
Saheb, Thakur and Jitan took the dead body on
the taxi and remaining persons could not go."
Mahadeo admitted having thrown the dead body in the river.
Written statement was also filed on behalf of Mahabir.
The trial Court came to the conclusion that the possibility
of the death of Indira due to morphine injection could not
be ruled out. It was held that Mahabir and Dasrath accused
had conspired to kill Indira by administering poison, or at
any rate, Dasrath accused had connived at the, murder of
Indira by Mahabir accused Both of them were further held to
have conspired to dispose of the dead body secretly with a
view to screen themselves from legal punishment. Mahabir
and Dasrath accused were accordingly convicted and sentenced
as above. Kedar accused was given the benefit of doubt and
was acquitted. As regards Mahadeo and Kasini accused, it
was held that though they had joined in the disposal of the
dead body, they were not parties to the conspiracy to murder
Indira.’ These two accused were, however, found to have
conspired to dispose of Indira’s dead body with a view to
screen Mahabir and Dasratli accused from legal punishment of
murder. Mahadeo and Kasim accused were accordingly
convicted for offences under sections 120B and 201 Indian
Penal Code.
On appeal the High Court found that the following facts had
been proved:
"(1) Appellant Dasrath was not keen to have
the DURAGAMAN ceremony performed even after
more than four years of his marriage and was
putting pressure on Indira’s father to pay
the promised sum of Rs. 2500/-to him although
in fact there was no such promise from his
father-in-law.
647
(2) Dasrath had in the meantime come in some
sort of close intimacy with a girl medical
student of Kanpur, named, Madhuri Chourasia
and was on correspondence with her.
(3) Deceased Indira was suspected by Dasrath
and by his father and step mother of illicit
intimacy with Rajendra when she came in Aswin
in 1962 to stay at Mahabir’s place and they
decided to abandon her at her father’s place
never to be called back again.
(4) On the asking of Dasrath and Mahabir the
father of Indira brought her back to his place
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in December, 1962.
(5) Indira was not asked to join her husband’s
family on the occasion of the TILAK of
Mahabir’s daughter and third son Mahendra in
May, 1963.
(6) Baijnath went uninvited with Indira to
Nayagaon on that occasion and he was insulted
by Mahabir and Dasrath; but still Baijnatli
left Indira there and returned alone to
Surajgarh.
(7) Mahabir immediately wrote a post card
(Ext. 1/3) expressing his acute bitterness,
disgust and hatred for Baijnath
and his
daughter.
(8) On 7th August, 1963 Mahabir in, Calcutta
had talks with Bhailal an uncle of Indira and
Mahabir conveyed to him his idea of injecting
Indira to death within a month if she was not
removed by ’her father from his place.
(9) Dirty allegations were made against her
character and she was described by Mahabir
before Bhailal as cobra.
(10) Bhailal immediately conveyed to Baijnath
the gist of the conversation he had with
Mahabir by letter Ext. 114 by dated 8-8-1963.
(11) Mahabir on his own admission before
Bhailal was already giving injections to
Indira to relieve her of some stomach pain.
(12) Suddenly Indira died on the night of
17-9-1963.
(13) No relation or neighbour at Nayagaon came
to know of her deaths on that evening.
(14) The father of the deceased girl was not
informed .about the death although Surajgarh
was not very far
648
and there was undue hot haste in disposing of
the body on the very night of her death.
(15) The dead body was stealthily carried away
by Mahabir and his three servants including
Qasim Ansari on a taxi at dead of night and
was sunk unceremoniously in Kamarganj Ghat 21
miles away although the nearer burning ghat or
bank of the Ganges was at Lal Darwaza ox
Chandi Asthan at Monghyr, only five to six
miles away from Jamalpur.
(16) The body was not cremated according to
custom.
(17) Rumour about surreptitious disposal of
the dead body was reported at Jamalpur Police
Station and enquity was at once started by the
thana officer on the morning of 18-9-1963 and
Mahadeo and Quasim Ansari made discrepant
statements about the, death and disposal of
the dead body on interrogation.
(18) Mahabir and also Dasrath (who was seen at
Jamalpur on the morning of 18-9-1963)
absconded and remained traceless till 30-9-
1963.
(19) Mahadeo misled the police in searching
out the dead body in the evening at Chandi
Asthan on 18-9-1963 and later on a subsequent
clue furnished by him the police party
came to
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Kamarganj Ghat and recovered the dead body
from the river bed.
(20) Upon post mortem examination heart was
found empty and normal and it excluded the
possibility of natural deathdue to- syncope
or vagal inhibition.
(21) Dasrath was absent from his hostel at
Darbhanga from 14-9-1963 and again from 23-9-
1963 till 30-9-1963 when he and his father
Mahabir surrendered in court.
(22) The plea of alibi of Dasrath remained
unsubstantiated."
In the result, the conviction of the accused-appellants was
upheld and their appeal was dismissed.
In appeal in this Court Mr. Chari on behalf of the
appellants has argued that the material on record does not
establish that Mahabir accused caused the death of Indira
deceased. In any case, according to the learned counsel, it
has not been proved that the death of Indira was homicidal
and not natural. So far as Dasrath accused is concerned,
the submission made is that there is no cogent evidence on
the record to show that he was present at
649
his house in Jamalpur on the night of occurrence. As
regards Kasim accused, the counsel contends that he is not
proved to have taken part in the removal of the dead body of
Indira from the house of Mahabir. In respect of Mahadeo,
the argument is that he did not know that Indira had been
murdered. The above contentions have been controverted by
Mr. Prasad on behalf of the respondent State. We have heard
the arguments at length and shall now proceed to examine as
to whether the prosecution has been able to establish the
charge against the accused and if so, against which of them.
We may first take the case of Mahabir accused. It is the
case of the prosecution that Mahabir had an aversion for
Indira deceased and suspected her of illicit intimacy with
his second son Rajendra. Indira was consequently sent to
her father’s house. The above facts are proved by the
evidence of Baijnath (PW 2) and are corroborated by letter
dated July 6, 1962 sent by Dasrath accused to Baijnath PW.
The evidence of Baijnath PW further shows that after Indira
had been brought to his house in December 1962, Baijnath
made many efforts to send Indira to the house of Mababir,
but Mahabir declined to, keep her in his house. In May 1963
the marriage, of Mahandra and Tilak ceremony of Mahabies
eldest daughter were to be performed. Mahabir did not send
for Indira on the occasion of the above Tilak ceremony.
Baijnath on coming to know of the Tilak ceremony personally
took Indira with him to Mahabir’s house. Mahabir resented
the act of Baijnath in bringing Indira to his house on the
above occasion and made no secret of his resentmnent.
Baijnath all the same left Indira at Mahabir’s house under
the belief that the anger of Mahabir would subside. The
fact that Mahabir became angry because of Indira having been
brought to his house by Baijnath on the occasion of the
above Tilak ceremony is admitted by Mahabir also in his
statement under section 342 of the Code of Criminal
Procedure.
After the Tilak ceremony of Mahabir’s daughter, Indira
continued to stay at the house of Mahabir. Mahabir,
however, did not feel happy over this. Mahabir also
suspected that some people had set fire to his house on the
occasion of the marriage of his daughter at the instigation
of Baijnath. On June 7, 1963 Mahabir wrote a letter to
Baijnath in the course of which Mahabir stated
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"So far your daughter is living peacefully but
you, who have kept your daughter (here)
secretly have done a great harm. You who have
done this act in collusion with my enemies and
you have thought that it would be for your
good. Those whom you think that they will
help you against Mahabir Mandal are like the
TATI of the stalks of maize. You should know
that there is man of brain on this side also
to burn the action which you take.
650
Hence you should come as soon as you receive
the letter and have a face to face talk. Your
daughter can live or go only after settlement
made in the talk. You should not hesitate in
coming (here) I shall not quarrel. What-,
ever action will have to, be taken, will be
taken with brain. If you do not come its
result will be bad."
The writing of the above letter has been admitted by Mahabir
in his statement under section 342 of the Code of Criminal
Procedure. The letter shows that Mahabir was not prepared
to keep Indira at his house unless some amends were made by
her father.
The evidence of Bhai Lal (PW 18), who, is a cousin of
Baijanath PW and runs hotel business, shows that on August
7, 1963 Mahabir went to the witness in Calcutta and told the
witness to request Baijnath to take his daughter from the
house of Mahabir as Mahabir did not like to keeps her in his
house. Mahabir also added at that time that Baijnaths
daughter was having illicit intimacy with the other son of
Mababir and this would create complication in the family
when the sons of Mahabir came, during vacation to the house.
Mahabir even went to the extent of describing the daughter
of Baijnath as a cobra in the house. According further to
Bhai Lal, Mahabir held out a threat while leaving that if
Baijnath did not agree to take back his daughter, he would
give some fatal injection to Indira. On the following day
Bhai Lal sent a letter narrating the above facts to Baijnath
As some money was, also being sent along with that letter by
Bhai Lal to Baijnath, the letter and the money were, sent in
an insured cover. The evidence, of Bhai Lal in this respect
is corroborated by that of Baijnath PW to whom the letter
was sent. Baijath also referred to the above threat of
Mababir conveyed through Bhailal in the first information
report. Both the trial court and the High Court accepted
the prosecution evidence in this respect and nothing has
been urged in this Court as may Justify interference with
the above appraisement of evidence.
It is a common case of the prosecution and the defence that
Indira died suddenly in Mahabir’s house in his presence on
the night between September 17 and September 18, 1963. The
evidence of Baijnath shows that no intimation about the
death of Indira was, sent to him. Mahabir accused later on
that night arranged a taxi. and with the help of Mahadeo and
others placed the dead body in the taxi. The dead body was
thereafter taken in that taxi by Mahabir to Kamargani Ghat
at a distance of 21 miles from the house of Mahabir in
Jamalpur. A bag full of bricks was also carried in the
taxi. The dead body of Indira was then thrown into chest-
deep water of the Ganges after the bag full of bricks had
been tied to the waist. The above facts are also not
disputed
651
by Mahabir. According to him, they took the dead body at
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about 10 p.m. and after the body was thrown into the Ganges
they returned at about mid-night or 1 a.m.
After report had been lodged by Baijnath with the police on
the following day, that, is, September 18, 1963 Mahabir
accused was found to be absconding and was not traced till
he surrendered himself in court in September 30, 1963.
The dead body of Indira could not be recovered on September
18, 1963 and was recovered only on the morning of September
19, 1963 after the particular spot at Kamarganj Ghat had
been pointed by Mahadeo accused.
Post mortem examination on the dead body of Indira deceased
was performed by Dr. Hari Shanker Prasad. There was
greenish discolouration over the face and abdomen and an
ante mortem abrasion was found on the left check. Eyes were
protruding and corneas were hazy. Decomposition had
started, and according to the doctor, the time between the
death and post mortem examination was 36 to; 48 hours. Both
the lungs were found congested. Heart, according to the
doctor, was normal and empty, while liver, spleen and kidney
were "normal congested’.
The above circumstances, in our opinion, clearly point to
the conclusion that Mahabir accused was responsible for the
death of Indira. It is no doubt true that there is no
ocular evidence in this case regarding the commission of the
crime but the chain of different circumstances are
consistent only with the hypothesis of the guilt of Mahabir.
Mahabir was not only inimically disposed towards Indira, he
had also held out a threat that if she was not taken from
his house he, would administer an injection to her as a
result of which she would die. The conduct of Mahabir after
he death of Indira at a time when according to him, he was
feeling her pulse speaks volumes of his guilty conscience.
Had Indira’s death been natural and not the result of foul-
play, there was no reason as to why Mahabir should not have
immediately informed her father of her death. According to
Mahabir, he sent a post card to Indira’s father on the
following, day. No question on that score, however, was put
to Indira’s father Baijnath when he came into witness box.
The act of Mahabir in arranging for a taxi and taking the
dead body of Indira at the dead hour of the night to
Kamarganj Ghat at a distance of 21 miles clearly indicates
his desire to surreptitiously remove the dead body and throw
it at a place from which it would not be recovered. It is
significant in this connection to observe, that Monghyr is
at a distance of only five or six miles from Jamalpur while
Lal Darwaza burning ghat is at a distance of nine miles from
Jamalpur. Both Lal Darwaza burning ghat and Monghyr are on
river bank. The fact that the dead body
652
was taken to a much more distant place like Kamarganj Ghat which
is 21 miles away tends to show that Mahabir wanted
that the place where the dead body was thrown should not get
known to others. The tying of bag containing bricks to the
dead body betrays further anxiety to prevent the floating
and consequent detection of the dead body.
According to the defence version, Dasrath accused, who is
husband of Indira, was not present in Nayagaon and was away
to Darbhanga at the time of the death of Indira. Dasrath
even was not sent for before the dead body was disposed of.
The stealthy removal of the dead body of Indira at a late
hour of the night and the undue haste with which the body of
Indira was thrown in the river at a distance of 21 miles
from Nayagaon is a gravely incriminating circumstance and no
plausible explanation has been furnished by Mahabir for this
abnormal conduct.
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As regards the contention that the death of Indira was
natural and not homicidal, we have already mentioned above
that both her lungs were found to be congested. Heart was
normal and. empty. Dr. Prasad (PW 21), who performed the
post mortem examination on the dead body, was declared
hostile on the request of the public prosecutor. In answer
to a further question, Dr. Prasad stated that the death of
Indira might have been a normal death Dr. Prasad ruled out
an asphyxial death or death by morphine poisoning because,
according to him, there was no indication of any of the
following characteristics which are to be found in the case
of such a death :
"(a) Right lung is full of blood and left is
empty.
(b) Lividity of faces, fingers and nails.
(c) Congestion of the brain.
(d) Froth or blood froth in the trachea,
(e) Punctiform ecchymosis in the lungs with
congestion of lungs."
The prosecution also examined Dr. Kamleshwar Singh police
surgeon (PW 24). According to this witness, he perused the
post mortem report and the Chemical Examiner’s report. The
witness added : "In my view I cannot form any opinion for
the cause of death except that death had resulted due to
respiratory failure. Asphyxia is the technical term for
respiratory failure. Poisoning may be one of the causes of
respiratory failure". Dr. Kamleshwar H Singh expressed his
agreement with Dr. Prasad regarding the characteristics of
asphyxial death.
653
The trial court and the High Court in the light of the
evidence on record, were of the opinion that the death of
Indira by morphine poisoning could not be ruled out.
According to Taylor’s Principles and Practice of Medical
Jurisprudence, vol. II, Twelfth Edition, page 199, poison
can be administered not only orally but also hypodermically
or intravascularly with the help of a syringe. As there was
no eye witness of the occurrence, the court should not, in
our opinion, insist upon evidence regarding the exact manner
in which the death of Indira was caused. It has to be borne
in mind in this context that Mahabir accused was responsible
for the removal of the dead body immediately after the death
of Indira and the same remaind submerged in water for more
than 24 hours’ The above conduct of Mahabir accused
prevented prompt post mortem examination on the dead body of
Indira. On the material it can be said that there were some
features like the congestion of both the lungs, the kidney,
the liver and the spleen of Indira which, according to Dr.
Kameshwar Singh, were indicative of death by respiratory
failure and the same could be caused by poisoning. The fact
that the heart of the deceased at the time of post mortem
examination was found to be empty would not rule out
asphyxial death as a result of poisoning. According to
observations on page 125 of Modi’s Medical Jurisprudence and
Toxicology. Seventeenth Edition, in many cases of asphyxial
deaths both the sides of the heart) are found to be full if
examined soon after death but after rigor mortis has set in.
the heart is found contracted and empty. Reference has been
made by Mr. Chari to report dated December 23, 1963 of the
Chemical Examiner, according to whom no poison could be
detected in the viscera of Indira deceased. This
circumstance would not, in our opinion, militate against the
conclusion that the death of the deceased was due to
poisoning. There are several poisons, particularly of the
synthetic hypnotics and vegetable alkaloids groups, which
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do not leave any characteristic signs as can be noticed on
post mortem examination. We may in this context refer to
the following observations on page 477 of the above men-
tioned book by Modi:
"It is quite possible that a person may die
from the effects of a poison, and yet none may
be found in the body after death, if the whole
of the poison has disappeared from the lungs
by evaporation, or has been removed from the
stomach and intestines by vomiting and
purging, and after absorption has been
detoxified, conjugated and eliminated from the
system by the kidneys and other. channels.
Certain vegetable poisons may not be detected
in the viscera, as they have no reliable
tests, while some organic poisons, especially
the alkaloids and glucosides, may, by
oxidation during life or by putrefacti
on after
death, be split up into other substances which
have no
654
characteristic reactions sufficient for their
identification."
Similar view has been expressed by Lambert in his book "The
Medico-Legal Post Mortem in India". We may also in this
context refer to the book "Legal Medicine Pathology and
Toxicology" by Conzales and others, Second Edition, wherein
it is. stated on page 847
"The postmortem appearances in cases of
morphine poisoning are not particularly
characteristic. There is a congestion of the
viscera, cyanosis and abundant dark fluid
blood. When crude opium is taken by mouth the
stomach may contain fragments of poppy, but
nothing characteristic is found if morphine,
is ingested."
The circumstances of the present case taken in their
entirety clearly point to the conclusion that the death of
Indira was not natural but was due to foul-play. In a
number of cases where the deceased dies as a result of
poisoning, it is difficult to successfully isolate the
poison and recognize it. Lack of positive evidence in this
respect would not result in throwing out the entire
prosecution case if the other circumstances clearly point to
the guilt of the accused. Reference in this context may be
made to the following observations of Hidayatullah J. (as he
then was) who spoke for the majority in the case of Anant
Chintaman Lagu v. The State of Bombay(1)
"A case of murder by administration of poison
is almost always one of secrecy. The poisoner
seldom takes another into his confidence, and
his preparations to the commission of the
offence are also secret. He watches his
opportunity and administers the poison in a
manner calculated to. avoid its detection.
The greater his knowledge of poisons, the
greater the secrecy, and consequently the
greater the difficulty of proving the case
against him. What assistance a man of science
can give he gives, but it is too much to say
that the guilt of the accused must, in all
cases, be demonstrated by the isolation of the
poison, though in a case where there is
nothing else such a course would be incumbent
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upon the prosecution. There are various
factors which militate against a successful
isolation of the poison and its recognition.
The discovery of the poison can only take
place either through a post mortem examination
of the internal organs or by chemical
analysis. Often enough, the diagnosis of a
poison is aided by the information which may
be furnished by relatives and friends as to
the symptoms found on the victini. if the
course of poison has taken long and ot
hers
(1) [1960] 2 S.C.R.
655
have had an opportunity of watching its
effect. Where, however, the poison is
administered in secrecy and the victim is
rendered unconscious effectively, there is
nothing to show how the deterioration in the,
condition of the victim took- place and if not
poison but disease is suspected, the diagnosis
of poisoning may be rendered difficult."
Reliance in the above context was placed in the cited case
on the books on medical jurisprudence by different authors
wherein it has been stated that the pathologist’s part in
the diagnosis of poisoning is secondary and that several
poisons particularly of the synthetics hypnotics and
vegetable alkalodis groups do not leave any characteristic
signs which can be noticed on post mortem. examination. The
following dictum was laid down in the case:
"The cases of this Court which were decided,
proceeded upon their own facts, and though the
three propositions must be kept in mind
always, the sufficiency of the evidence,
direct or circumstantial, to establish murder
by poisoning will depend on the facts of each
case. If the evidence in a particular case
does not justify the. inference that death is
the result of poisoning because of the failure
of the prosecution to prove the fact satisfac-
torily, either directly or by circumstantial
evidence, then the benefit of the doubt will
have to be given to the accused person. But
if circumstantial evidence, in the absence of
direct proof of the three elements, is so
decisive that the Court can unhesitatingly
hold that death was a result of administration
of poison (though not detected) and that the
poison must have been administered by the
accused person, then the conviction can be
rested on it."
The case against Mahabir accused, in our opinion, is covered
by the latter part of the above observation. We, therefore,
find no cogent ground to interfere with the findings of the
two courts that the death of the deceased was not natural
but homicidal.
Reference has been made by Mr. Chari to the case of State
Government, Madhya Pradesh v. Ramkrishna Ganpatrao Limsey
and Ors. (1) wherein this Court dealt with an appeal against
acquittal and observed that the exercise: of extra-,ordinary
jurisdiction under Article 136 of the Constitution is not
justifiable in criminal cases unless exceptional and special
circumstances are shown to exist or that substantial and
grave injustice has been done. The above observations are
hardly of any assistance, to the appellant. The other
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observation in that case relating to speculation in the
absence of any material were made in the light of the facts
of that
(1) A.I.R. 1954 S.C. 20.
656
case and as there is no parallel between the facts of the
two cases, not much help can be derived from the cited case.
The suggestion put forth on behalf of the accused that
Indira ,deceased might have died due to vagal inhibition as
a result of menstural trouble or diarrhoea cannot be
accepted. Had the death of Indira been natural because of
some sudden disease and not homicidal, Mahabir accused would
not have acted in the manner he did for the stealthy
disposal of, the dead body at night by throwing it in the
river at a far off place without informing her father or
even his own son about the death. The entire conduct .of
Mahabir is inexplicable On any rational ground and is
consistent only with his guilt.
We may now deal with the case of Dasrath accused. According
to the prosecution case, Dasrath was present in his house in
Jamalpur on the night of occurrence. Dasrath, however, has
,denied this allegation and has stated that he was away to
Darbhanga during those days. There is no reliable evidence
to show that Dasrath was present in the house on the night
in question. Reliance has been placed by the prosecution on
the testimony of Shiban Mandal (PW 8) and Mushahru Mandal
(PW 15) who .have deposed that they saw Dasrath reading a
book near the dispensary room of his house on the morning
of September 18, 1963. Both these witnesses are related to
each other. Shiban ,did not make any statement to the
police till September 22, 1963. The fact that Shiban kept
quiet for four days and made statement to the police after
four days would show that not much reliance can be placed
upon his testimony. Mushahru on his own testimony has been
involved in litigation with Mahabir, father of Dasrath.
Mahabir also got the house of Mushahru attached in a suit
filed against him. As such, it is not safe to rely upon the
testimony of Mushahru also.
It may be mentioned that, according to the confessional
statement of Mahadeo, which was recorded by Shri Rastogi
magistrate on September 21, 1963 and upon which reliance was
placed by the prosecution, no one was present in the house
when Mahabir took Mahadeo inside the house to bring out the
dead body of Indira for being placed in the taxi on the,
night of occurrence. The confessional statement of Mahadeo
thus rules out the presence of Dasrath accused at his house
on the fateful night.
The fact that Dasrath was not marked present in his hostel
from September 14 till September 19, 1963 would not
necessarily show that he was present in his house in
Jamalpur on the night of September 17, 1963. According to
Dasrath, he was in those days staying with a relative Shri
Ram Lakhan Bhagat Advocate as Shri Bhagat’s son was having
typhoid. The fact that Dasrath did not
657
adduce evidence in support of his version would not lead to
the conclusion that he was present at his house in Jamalpur
on the night of occurrence.
Reference has also been made to some letters between Dasrath
and a girl named Madhuri in order to show their intimacy.
This circumstance would not warrant an inference of the
guilt of Dasrath when the other evidence is not sufficient
to connect him with the crime. The same remarks would apply
to letter dated March 29, 1962 which Dasrath wrote to
Baijnath in order to re. mind him of his promise to pay Rs.
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2,500 for further education to Dasrath. It may be mentioned
that a subsequent letter dated July 6, 1962 of Dasrath to
Baijnath shows his attachment toward,,; his wife Indira
deceased.
Coming to the case of Kasim, we find that there is no
reliable evidence as may show that Kasim was present at the
house of Mahabir on the night of occurrence and took part in
the disposal of the dead body of Indira. Reliance was
placed by the prosecution upon the statements alleged to
have been made by Kasim and Mahadeo accused at the police
station in the presence of Baijnath PW after Baijnath had
lodged report at the police station. Such statements are
legally not admissible in evidence and cannot be used as
substantive evidence. According to section 162 of the Code
of Criminal Procedure, no statement made by any person to a
police officer in the course of an investigation shall be
signed by the person making it or used for any purpose at
any enquiry or trial in respect of any offence under
investigation at the time when such statement was made. The
only exception to the above rule is mentioned in the proviso
to that section. According to the Proviso, when any witness
is called for the prosecution in the enquiry or trial, any
part of his statement, if duly proved, may be used by the
accused and with the permission of the court by the
prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act and when
any part of such treatement is so used, any part thereof may
also be used in the re-examination of such witness for the
purpose only of explaining any matter referred to in his
cross-examination. The above rule is, however, not
applicable to statements falling within the provisions of
clause 1 of section 32 of the Indian Evidence Act or to
affect the provisions of section 27 of that Act. It is also
well established that the bar of inadmissibility operates
not only on statements of witnesses but also on those of the
accused [see Narayan Swami v. Emperor, (1)]. Lord Atkin, in
that case, while dealing with section 162 of the, Code of
Criminal Procedure, observed
"Then follows the Section in question which is
drawn in the same general way relating to "any
person." That
(1) [1939] P.C. 47.
658
the words in their ordinary meaning would
include any person though he may thereafter be
accused seems plain. Investigation into crime
often includes the examination of a n
umber of
persons none of whom or all of whom may be
suspected at the time. The first words of the
Section prohibiting the statement if recorded
from being signed must apply to all the
statements made at the time and must therefore
apply to a statement made by a person
possibly not then even suspected but even-
tually accused."
Reference may also be made to section 26 of the Indian
Evidence Act, according to which no confession made by any
person whilst he is in the custody of a police officer,
unless it be made in. the immediate presence of a
Magistrate, shall be proved against such person. There is
nothing in the present case to show that the statements
which were made by Kasim and Mahadeo accused on September
18, 1963 at the police station in the presence of Baijnath
resulted in the discovery of any incriminating material as
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may make them admissible, under section 27 of the Indian
Evidence Act. As such, the aforesaid statements must be ex-
cluded from consideration.
We, therefore, axe of the opinion that no case has been
proved against Dasrath and Kasim accused.
As regards Mahadeo accused, we find that it is the case of
the prosecution and this fact is also admitted by Mahadeo
accused in his statement under section 342 of the Code of
Criminal Procedure that he was one of those who carried the
dead body of Indira from the house of Mahabir to the taxi
and thereafter went with the dead body in the taxi to
Kamarganj Ghat. The dead body also thrown in the Ganges by
Mahadeo. Mahadeo further admits that he pointed out the
dead body to the police and brought it out of the Ganges.
The circumstances in which the death of Indira took place
and the surreptitious manner in which ’her dead body was
removed at dead of night from Mahabir’s house to Kamarganj
Ghat go to show that Mahadeo was not unaware of the fact
that Indira’s death was not natural and had been brought
about by Mahabir. Mahadeo, in the circumstances, ,was
rightly convicted for offence under section 201 Indian Penal
code for causing the disappearance of the dead body with a
view to screen the murderer from legal punishments
As both Dasrath and Kasim are being acquitted, the charge
under section 120B Indian Penal Code against Mahabir for
conspiracy with Dasrath to murder Indira and against Mahadeo
for conspiracy with Kasim for causing disappearance of dead
body ,of Indira must fail.
659
The result is that appeal of Dasrath and Kasim is allowed.
Their conviction is set aside and they are acquitted. The
conviction of Mahabir and Mahadeo for offences under section
120B Indian Penal Code is set aside. The conviction of
Mahabir for offences under sections 302 and 201 Indian Penal
Code as well as the sentence on that scare is maintained.
Likewise, the conviction and sentence of Mahadeo for offence
under section 201 Indian Penal Code is maintained. The
appeal of Mahabir and Mahadeo to this extent is dismissed.
S.C. Appeal dismissed.
660