Full Judgment Text
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PETITIONER:
RAMA NAND AND ORS.
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH
DATE OF JUDGMENT06/01/1981
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1981 AIR 738 1981 SCR (2) 444
1981 SCC (1) 511 1981 SCALE (1)24
CITATOR INFO :
RF 1989 SC1076 (21)
R 1989 SC1890 (31)
R 1990 SC 79 (10)
R 1991 SC 917 (8)
F 1992 SC2045 (20)
ACT:
Circumstantial evidence, value of-Corpus delicti not
found in the case-Whether inference of guilt of murder could
be drawn when the other circumstances established on record
were sufficient to lead to the conclusion that within all
human probability the victim was murdered by the accused.
HEADNOTE:
Dismissing the appeal and maintaining the conviction
and sentences of the appellants, the Court
^
HELD:(1) It is well settled that where the inference of
guilt of an accused person is to be drawn from
circumstantial evidence only, those circumstances must, in
the first place, be cogently established. Further, those
circumstances should be of a definite tendency pointing
towards the guilt of the accused, and in their totality,
must unerringly lead to the conclusion that within all human
probability, the offence was committed by the accused and
none else. In the instant case, the following circumstances
had been correctly found to have been established by the
prosecution: (i) Rama Nand accused had a strong motive to
murder his wife, Sumitra. (ii) Sumitra was last seen alive
with Rama Nand, appellant in the family house at Jherwin on
the night between 13th and 14th May, 1972. (iii) (a) Rama
Nand and the other co-accused falsely gave out that she had
committed suicide by jumping into the river. They ’planted’
a Salwar and a pair of shoes on the bank of the Sutlaj and
gave out that they belonged to the deceased, and Shish Ram
lodged a false report with the police to the effect that she
had committed suicide by jumping into the river. The Salwar
and the shoes, which had been ’planted’ there to manufacture
false clues by the accused, did not belong to Sumitra, and
the accused falsely asserted that whose articles belong to
the deceased. (b) The story given out by the accused persons
that upto 11 a.m. on May 14, 1972, Sumitra was planting
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chillies along with Sheela and other members of the family
of the accused, was false. (iv) The gold chain (Ex. P-1) and
the watch (Ex. P-2) which Sumitra used to wear on her person
all the 24 hours, and the clothes (Ex. P-5 to P-10) which
she had on her person and the basket (Ex. P-11) and umbrella
(Ex. P-12) which she was carrying when on the evening of May
13, 1972 she came to house of the accused at Jherwin, were
recovered from the house of the accused. (v) Some days after
the occurrence, one Paranda was found from the jungle near
this village. There was a bunch of hair in the plated tail
of this Paranda. The tail appeared to have been cut. These
hair sticking in the paranda and those found entangled in
the Dupatta of the deceased were according to the Forensic
Expert of one and the same person. (vi) A legless decomposed
corpse was recovered from the Sutlej near village Randol in
a mutilated condition. But its identity
[451G-H, 452A-E, 453A-B]
(2) Even on the assumption that the dead body of the
victim was not found, circumstances (i) to (v) mentioned
above in their cumulative effect includably and rationally
compel the conclusion that Sumitra had died and it was Rama
445
Nand accused who had intentionally caused her death.
Ordinarily, the recovery of the dead-body of the victim or a
vital part of it, bearing marks of violence is sufficient
proof of homicidal death of the victim. Even so, discovery
of the dead-body of the victim bearing physical evidence of
violence, has never been considered as the only mode of
proving the corpus delicti in murder. Indeed very many cases
are of such a nature where the discovery of the dead-body is
impossible. A blind adherence to this old doctrine of Sir
Mathew Hale that "for a conviction of murder atleast the
body was found dead" would open the door wide open for many
a heinous murderer to escape with impunity simply because
they were a cunning and clever enough to destroy the body of
their victim. In the context of our law, Hale’s enunciation
has to be interpreted no more than emphasising that where
the dead-body of the victim in a murder case is not found,
other cogent and satisfactory proof of homicidal death of
the victim must be adduced by the prosecution. Such proof
may be the direct ocular account of an eye-witness, or by
circumstantial evidence, or by both. But where the fact of
corpus delicti, i.e. ’homicidal death’ is sought to be
established by circumstantial evidence alone, the
circumstances must be of a clinching and definitive
character unerringly leading to the inference that the
victim concerned has met a homicidal death. Even so, this
principle of caution cannot be pushed too far as requiring
absolute proof. Perfect proof is seldom to be had in this
imperfect world, and absolute certainty is a myth. That is
why under Section 3, Evidence Act, a fact is said to be
"proved", if the Court considering the matters before it,
considers its existence so probable that a prudent man
ought. under the circumstances of the particular case, to
act upon the supposition that it exists. The corpus delicti
or the fact of homicidal death, therefore, can be proved by
telling and inculpating circumstances which definitely lead
to the conclusion that within all human probability, the
victim has been murdered by the accused concerned. [457 D-H,
458A-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 17
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of 1975.
Appeal by Special Leave from the Judgment and Order
dated 7-6-1974 of the Himachal Pradesh High Court in
Criminal Appeal No. 40/73.
Hardyal Hardy and P.P. Juneja for the Appellants.
Badri Das Sharma and Miss A. Subhashini for the
Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed
against a judgment, dated June. 7. 1974, of the High Court
of Himachal Pradesh, whereby it upheld the conviction of
Rama Nand accused under Section 302, Penal Code, and that of
the co-accused Shish Ram and Kali Datt under Section 201,
Penal Code, and also the sentences awarded to each of them
by the learned Sessions Judge,
446
Mandi. The prosecution story, as it emerged from the record,
was as follows:
Sumitra deceased, aged 19 years, was the daughter of
Som Krishan (P.W. 33). Rama Nand, appellant is her husband
and Shish Ram, appellant 2, is her father-in-law while Kali
Datt appellant 3, is the younger brother of Rama Nand.
Sumitra’s father wished to see his daughter highly
educated, and employed in Government service and married to
a suitable, highly educated person, settled in life. Sumitra
had passed Higher Secondary Examination and wanted to pursue
her studies further according to the wishes of her father.
About two years before Sumitra’s reported death, Shish
Ram appellant approached Som Krishan (P.W. 33) and persuaded
him to give Sumitra in marriage to his son, Rama Nand. While
negotiating this matrimonial alliance, Shish Rama told Som
Krishan that his son was suitably employed on a Government
job in the Office of the Deputy Commissioner, Kasumpti. He
further falsely represented to Som Krishan that his son,
Rama Nand was a graduate. Believing this representation to
be true, Som Krishan about 1 1/2 or 2 years before Sumitra’s
murder in question, married her to Rama Nand; Before this
marriage it was settled by Som Krishan with Shish Ram and
Rama Nand accused that even after her marriage, Sumitra
would continue to pursue further studies and take up
employment as a teacher. After the marriage, her father got
his daughter, Sumitra, employed as a teacher in Village
Nursery School at Chanyana which was situated near her
parents’ village. While teaching at Chnayana, she continued
to reside with her parents. She used to visit village
Jherwin occasionally to be in the society of her husband who
also used to come to Jherwin from Kasumpti. The accused
persistently demanded that Sumitra should give up her
employment at Chanyana, and start residing permanently and
continuously in her matrimonial home at Jherwin. Sumitra
tenaciously refused to do so. Rama Nand wrote several
letters to Sumitra urging her to give up her adamant
attitude. These letters furnished evidence of a strong
motive for Rama Nand to put an end to the life of Sumitra.
Rama Nand was employed as a Clerk in the Office of the
Deputy Commissioner Kasumpti. On May 12, 1972, he came to
Jherwin from Kasumpti. He had earlier written to his wife,
Sumitra, strongly urging her to come to village Jherwin. On
May 13, 1972, Sumitra came to Rama Nand’s house at Jherwin
and stayed with him in his room on the night between 13th
and 14th May, 1972. The other
447
rooms of the house were in occupation of the other members
of Shish Ram’s family. Thereafter, on May 14, 1972, she
disappeared from the house of the accused. The accused gave
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out that Sumitra had gone towards the Sutlej river on the
pretext of attending to the call of nature; that thereafter
her Salwar and shoes were found on the bank of the river,
which indicated that she had jumped into the river and
committed suicide. After pretending to make a search for her
body in the river and nearabout, Shish Ram on May 16, 1972,
went to Police Station Karsog at 5.30 p.m. and lodged a
report (Ex. PAQ). It was recorded by Head Constable Nand
Lal. After recording it in the Roznamacha, the Head
Constable read it in the presence of one Inder Pal to the
informant, who, after hearing the same to be correct, signed
it in Hindi and his companion Inder Lal signed it in
English. As this report, according to the prosecution, shows
that an attempt was made by Shish Ram accused to lay a false
trail and manufacture false clues as to the cause of the
death of Sumitra and to screen the offence, it is necessary
to reproduce the material parts of that report (rendered
into English), hereunder:
...."my daughter-in-law Smt. Sumitra Devi aged about
18/19 years, was married about 1 1/2 years ago, to my
son Rama Nand who is employed in the office of D.C.
Kasumpti as a clerk. Sumitra Devi herself was employed
as a Mistress in Nursery School, Chanyana and was
residing with her parents. Whenever my son used to come
home on leave, she also used to visit her house at such
time. Similarly my son Rama Nand had come on leave to
his house on 12-5-72 and in the evening of 13-5-72, my
daughter-in-law, Smt. Sumitra Devi had also come to his
house. As usual, because of Sunday holiday, in the
morning on 14-5-72, myself, my daughter-in-law and
other members of the family were planting chilly
seedlings in the fields near our house. My son (Rama
Nand) was lying in bed on account of stomach trouble.
After plantation work, at about 9/10 a.m. my daughter-
in-law, Smt. Sumitra Devi along with Sheela Devi aged
about 7 years, who is daughter of my brother, had gone
downward on the pretext of easing herself. After some
time, Sheela returned home and reported that she had
been turned back from the way by her aunt. Sumitra
Devi, who had gone ahead towards the river side. For
some time it was believed that she might have gone to
answer the call of nature. The river is about 2
furlongs from my house towards downside. When
sufficient time passed and she did
448
not return home, then calls were given hither and
thither and search was also started but her whereabouts
could not be known. After a thorough search on the
Sutlej river bank, the Salwar and shoes of Smt. Sumitra
were found which Smt. Sumitra was wearing at the time
of her going that side. This created a suspicion that
she might have committed suicide by jumping into the
river. She was searched at the river bank as also in
the nearby villages.. but her dead-body was not found,
nor any clue of her going is available. Smt. Sumitra
was married in a good family and her character was also
good, her relations with her husband were cordial. No
quarrel on that day or prior to that, took place
between her and my son, nor is there any reason for her
disappearance. I have come to report, which may be
recorded. After locating her alive or dead, separate
report will be lodged."
Daulat Ram, Station House Officer (P.W. 38) then visited the
scene of occurrence on May 13, 1972. He was not satisfied
about the correctness of the information given by Shish Ram
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accused. He, therefore, got a case under Section 364, Penal
Code, registered.
Shis Ram accused produced before him the Salwar (Ex. P-
14) and shoes (Ex. P-15/12) which, according to Shish Ram’s
report, belonged to Sumitra deceased and were found lying on
the river bank. The investigator also prepared a rough
sketch of the spot where these clothes and shoes were stated
to have been found.
Som Krishan upon receiving the information, suspected
that her daughter had been murdered at the instance of Rama
Nand and others. Som Krishan reached the spot and made
enquiries. Rama Nand and Shish Ram accused were arrested by
the Investigating Officer on June 5, 1972. The Investigating
Officer took into possession the Locket-chain (Ex. P-1) and
the watch (Ex. P-2) belonging to the deceased from the room
which was in the occupation of Rama Nand, in the deceased
from the room which was in the occupation of Rama Nand, in
the presence of Kanshi Ram and Hira Mani and prepared the
Memo (Ex. P-A) in this behalf. Rama Nand accused, whilst in
police custody, produced Sumitra’s clothes (Ex. P-5 to Ex.
P-10) which were taken into possession by the Investigator
in the presence of Mastu and Hari Ram, witnesses (vide Ex.
P-Y). These clothes, according to the prosecution, were the
same which Sumitra was wearing when she arrived at the house
of Rama Nand accused on May 13, 1972.
449
On June 5, 1972, a legless and armless dead-body in a
highly decomposed state was found at a distance of four
kilometers down-stream on the bank of the river Sutlej near
village Randaul. Kali Datt appellant was found near that
skeleton in the early hours or June 5,1972. He dragged the
skeleton from the river upto some distance. It appeared that
dogs etc. had eaten away the flesh. A part of the skull was
found in tact, while the remaining part of it was lying at
some distance. On receiving information, Som Krishan
(P.W.33) and his brother’s wife, Laxmi (P.W. 2), came and
identified the skeleton to be that of Sumitra. There was
some flesh on the buttock portion and there was a mark on
it. According to these identifying witnesses, this mark was
that of a burn which Sumitra had received during her
infancy. One of the teeth found in the inaudible was
carious, while another tooth was jutting out. Daulat Ram got
the dead-body measured from shoulder to the cut portion of
the thies by Mehar Chand. The measurement came to 2’-4".
Daulat Ram prepared the inquest report (Ex. P/F) which was
attested by Kundan witness. He sent the dead-body along with
the inquest report (Ex. PF) to Simla for post-mortem
examination. The dead-body reached the Hospital at 1 p.m on
June 7, 1972. There, they directed the police to take the
dead-body to Ripon Hospital. The post-mortem examination.
was conducted by Dr. J. R. Sharma (P.W. 14) on the following
day. The post mortem report was handed over to the police by
the Doctor on June 21, 1972. A few components of the
skeleton, including the mandible, were sent to the Dental
Surgeon, Dr. R. S. Pathania (P.W. 15) and Radiologist, Dr.
M. L. Ahuja (P.W. 16) for examination and opinion. These
Doctors, however, opined that the mandible belonged to a
child of not more than 10 years of age. The components of
the skeleton were, also, sent to Dr. O. P. Bhargave (P.W.
31), Professor of Anatomy in the Medical College of simila.
His opinion about the age of the deceased was also the same.
The Doctor could not determine the sex of the skeleton.
On August 24, 1972, a Paranda (cotton headtail),
alleged to be of Sumitra deceased was recovered from the
jungle of Ghangar. Some human hair were found entangled in
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the Paranda. These hair were sent for comparison with the
hair of the deceased found embedded in her Dupatta. The
forensic expert opined that the two sets of hair belonged to
one and the same person.
After investigation, the four accused, namely, Rama
Nand, his father Shish Ram, his brother Kali Datt and Shish
Ram’s brother Kesar Chand, were sent up before a Magistrate
who committed them
450
for trial to the Court of Session. At the trial, in his
examination under Section 342, Rama Nand admitted that after
her marriage, Sumitra got employment as a teacher. He,
however, denied the prosecution allegation that he and his
father were opposed to her employment as a teacher. He
expressed ignorance as to whether there was any settlement
between his father, Shish Ram, and Som Krishan Shastri,
father of Sumitra that she would continue her studies even
after the marriage and would be free to take up service as
her career. He added that his matrimonial alliance with
Sumitra was not negotiated and settled in his presence. He
admitted that the letters dated December 13, 1971, December
16, 1971 and May 9, 1972 (the English rendering of which is
marked Ex. PAH, Ex. PAB, and Ex. PC, respectively) were
written by him to Sumitra, and that the letter (Ex. PAJ)
dated October 14, 1971, was written by him to his father in
law. Som Krishan Shastri (P.W. 33). He further admitted that
on May 13, 1972, Sumitra came to his house in village
Jherwin from her parents’ place, and that she was then
wearing the golden chain (Ex. P-1), wrist watch (Ex. P-2),
Dupatta (Ex. P-5), suit (Ex. P-6 and Ex. P-7), socks (Ex.P-8
and 9), banian (Ex.P-10) and was carrying the basket (Ex. P-
11) and umbrella (Ex. P-12). He, however, added that when
she (Sumitra) reached home on May 13, 1972 with the articles
mentioned above, she was wearing pink ribbon on her head and
not any threadbunch like Ex.P-4. Question No.9 put to him
was: "It is in prosecution evidence that on May 14, 1972
Sumitra was not seen at your house or in the village at
Jherwin at all or thereafter. What have you to say?" He
replied: "On 14-5-72 morning at about, say upto 11 a.m., she
was working in the field at Jherwin and thereafter she was
not seen there and later on I was arrested and so I cannot
say about her whereabouts." He admitted that his father
Shish Ram had lodged the report (Ex. PAQ) in the Police
Station, Karsog. When the circumstance appearing in the
prosecution evidence, "that after the occurrence on May 16,
1972, he (Rama Nand) went away to Simla from Jherwin and
returned home three or four days thereafter" was put to
Ramanand, he replied: "It is wrong. I went to Simla on
17-5-72 evening and returned on 19th morning". He denied
that he and his father implored Som Krishan Shastri that he
should save them from the police at Jherwin. When the
negative circumstance appearing in evidence, to the effect
that the Salwar (Ex. P-14) was not of Sumitra, was put to
him, he asserted that the Salwar (Ex. P-14) was that of
Sumitra; and that his father had shown the Salwar (Ex. P-14)
indicating that his daughter-in-law, Sumitra had gone in the
river when the (Ramanand) was weeping. In reply to the last
question, Rama Nand narrated more or less the same story
which was given by them (accused) to
451
the police in the Report, PAQ. Among other things, he
stated: "It was found on the river side that her Salwar (Ex.
P-14) and shoes (Ex. P-15) were lying by the river bank
giving indication that she had jumped into the river. Then
we were in mourning and the villagers also verified that
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Sumitra was seen going to the river".
Shish Ram accused admitted that Sumitra had come to
their house at Jherwin on May 13, 1972 and had disappeared
on May 14, 1972. He admitted having lodged the report (Ex.
PAQ) in the Police Station, Karsog. He admitted that he had
produced the Salwar (Ex.P-14) and shoes (Ex. P-15) before
the police during investigation. He also maintained that the
Salwar (Ex. P-14) belonged to Sumitra. He denied that he and
his co-accused were threatening to teach Sumitra and her
father the lesson of life for keeping Sumitra employed
against their wishes at Chanayana. He repeated the substance
of the story which he had earlier stated in the report (Ex.
PAQ), and reiterated that since Sumitra’s Salwar and shoes
were found on the river bank, she had either jumped into the
river or run away somewhere.
The learned Additional Sessions Judge by his judgment,
dated December 1, 1973, convicted Rama Nand under Section
302, Penal Code, and sentenced him to rigorous imprisonment
for life. He further convicted Kali Datt and Shish Ram
accused under Section 201, Penal Code, and sentenced each of
them to one year’s rigorous imprisonment and a fine of Rs.
500/-. Keshar Chand accused was given the benefit of doubt
and acquitted. The appeal by the convicted persons was
dismissed by the High Court as per its judgment, dated June
7, 1974. Hence this appeal by special leave. The conviction
of the appellants is based entirely on circumstantial
evidence.
In convicting Rama Nand, appellant under Section 302,
Penal Code, for the murder of his wife, Sumitra, the courts
below have concurrently relied upon these circumstances
which, according to them, had been established by the
prosecution.
(1) Rama Nand accused had a strong motive to murder his
wife, Sumitra.
(2) Sumitra was last seen alive with Rama Nand,
appellant in the family house at Jherwin on the night
between 13th and 14th May, 1972. The other two co-accused
were also present in the same house
(3) (a) Rama Nand and the other co-accused falsely gave
out that she had committed suicide by jumping into the
river. They ’planted’ a Salwar and a pair of shoes on the
bank of the Sutlej and gave out that they belonged to the
deceased, and Shish Ram lodged
452
a false report with the police to the effect that she had
committed suicide by jumping into the river. The Salwar and
the shoes, which had been ’planted’ there to manufacture
false clues by the accused, did not belong to Sumitra, and
the accused have falsely asserted that these articles belong
to the deceased.
(b) The story given out by the accused persons that
upto 11 a.m. on May 14, 1972, Sumitra was planting chillies
along with Sheela and other members of the family of the
accused, was false.
(4) The gold chain (Ex. P-1) and the watch (Ex. P-2)
which Sumitra used to wear on her person all the 24 hours,
and the clothes (Ex. P-5 to P-10) which she had on the
person and the basket (Ex. P-11) and umbrella (Ex. P-12)
which she was carrying when on the evening of May 13, 1972
she came to the house of the accused at Jherwin, were
recovered from the house of the accused.
(5) Some days after the occurrence, one Paranda was
found from the jungle near this village. There was a bunch
of hair in the plaited tail of this Paranda. The tail
appeared to have been cut. These hair sticking in the
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Paranda and those found entangled in the Dupatta of the
deceased were according to the Forensic Expert of one and
the same person.
(6) A legless decomposed corpse was recovered from the
Sutlej near village Randol in a mutilated condition. From a
burnt mark on the flesh sticking to the buttock of the
corpse it was identified as that of Sumitra, deceased.
The High Court further held that even if any doubt
remained with regard to the identity or recovery of the
corpus delicti, the telling circumstances otherwise
complete the chain of evidence to establish beyond doubt
that Sumitra had been murdered and the charges had been
established against the accused as held by the trial court.
In the result it dismissed the appeal of the accused
respondents.
Shri Hardayal Hardy, learned counsel appearing for the
appellants contents that these circumstances have not been
satisfactorily established. He has placed great emphasis on
the evidence of the medical experts, according to which the
mutilated corpse found at Randol was that of a child, aged
about 8 or 9 years. It is submitted that the dead-body found
was not that of Sumitra deceased, and as a result, the
courts below were not justified in holding that the death of
Sumitra had been established by the prosecution.
On the other hand, the learned counsel for the State
has argued in support of the judgment of the High Court.
453
It is well settled that where the inference of guilt of
an accused person is to be drawn from circumstantial
evidence only, those circumstances must, in the first place,
be cogently established. Further, those circumstances should
be of a definite tendency pointing towards the guilt of the
accused, and in their totality, must unerringly lead to the
conclusion that within all human probability, the offence
was committed by the accused and none else.
The first circumstance which has been found to be
established by the courts below against the appellant is
that he had "a very strong motive" to commit the murder of
Sumitra. To substantiate this fact, the prosecution produced
four letters written by Rama Nand appellant. There are: Ex.
PAJ, Ex. PAH, Ex. PAB/1 and Ex. PC. The accused also
tendered in evidence the letter (Ex. DA) dated November 14,
1971 written by Som Krishan to Sumitra.
As already mentioned, Rama Nand accused has admitted
that the letters (Ex. PAJ, PAH, PAB/1 and P.C.) were written
by him. Ex. PAJ purports to have been written by him from
village Jherwin on October 14, 1971. In this letter, Rama
Nand very clearly informed his father-in-law that his father
Shish Ram was not in favour of Sumitra taking up service and
residing away from the accused’s house at Jherwin. In this
letter, Rama Nand urged his father-in-law that the latter
should either come to Jherwin along with Sumitra or send her
alone. This letter also indicates that Sumitra was
persisting in taking up service elsewhere against the wishes
of the accused persons.
Chronologically, the next letter is Ex. DA dated
November 14, 1971. It is addressed by Som Krishan to his
daughter, Sumitra. In this letter, the father informs the
daughter that he had obtained her appointment letter and she
would be required to join by the 17th to start the Nursing
School at Balwari. He wanted her to come to his house to
take up the appointment. In this letter, he also wishes her
daughter to convey to Rama Nand appellant and his brother,
Kesar Chand (acquitted accused) that they should agree to
Sumitra’s taking up this employment and that they should
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further bring round Shish Ram by reminding him that they had
earlier consented to her taking up Service. This letter
further indicates that Sumitra was much distressed because
of the hostile attitude adopted by her in-laws towards her.
To console her, the father wrote: "Don’t worry. Whatever God
does is good. Have self-confidence and do not repent on any
failure".
8. The third letter, dated December 13, 1971, (Ex.
PAH), written by Rama Nand to Sumitra, shows that the
opposition of the appellant,
454
his father Shish Ram and brothers to Sumitra’s taking up
service away from the matrimonial home, had passed from the
serious to the sardonic stage. It starts with the words:
"Wish you happy luxury !" Read in accord with the tenor of
the letter, it conveys a biting ironical taunt. These words
were capable of being construed as conveying an innuendo
that she was merry-making de-hors the matrimonial home in an
extra-marital way. May be, the appellant was doubting her
fidelity. He informs her that he had visited Jherwin in the
hope that he would join her there, but this hope did not
materialise. He complains against this attitude of neglect
on the part of his wife when he says: "Today you have not
seen to my condition, and have defamed me. To whom should I
blame ? It is the wind and to which side it blows it must do
something. I was thinking to save (you) from this wind." He
further reproaches and upbraids her: "You did not think over
it seriously and you did not care for it nor others. You
have taken it as a prestige issue. I cannot do anything so
long I am not heartily happy and I weep to my fate." He then
warns her in a contemptuous and peremptory tone: "It would
be better that you should resign your job now and come down
here . .. If you intend to reside with me, then you should
agree to my words....otherwise it will be a dog’s life. You
should either come to this place or to village Jherwin after
resigning the job and from there you may come to Simla on
any day. As you know, a friend in need is a friend in-deed.
When this is lost, one cannot take the shelter of others."
He reminds her that her marriage had been solemnised with
him. "To do service entirely depends upon you and me and not
upon (your) father... It is time to resign the Service..."
He repeats: "It is against the respect of my family,
yourself and myself that I should allow you to serve at a
monthly pay of Rs. 120/- and only for a tenure of six months
and myself to stay at Simla in the Hotel." He then in
stronger language demanded her to resign her job within 24
hours and come to his house direct without waiting for her
resignation to be accepted. He closes the letter with an
ominous threat veiled as a warning: "If you do not resign
the job, our relations will become strained."
In the next letter (Ex. PC), dated December 16, 1971,
Rama Nand wrote to Sumitra that he did not understand why
she did not "improve his (?) life’ and why she was acting at
the beck and call of others. He urged her that it would be
better to ’live for a more’. He added: "You obey me or not,
you yourself will understand the significance of this when
you give place to it in your mind". He sternly repeated the
warning: "I once again request you to keep in mind your as
also my honour, what you have to do, as the time has come.
There is no example in the history of world that a girl
after marriage
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should act on the advice of her father, which may be
harmful." He again urged her: "Do not think this letter as a
mere piece of paper, but each and every line in it will
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decide our future career...... you should resign your post."
He again administered a warning, coupled with a threat of
resorting to violence in case she did not resign her job to
live with the accused permanently: "The present is the
condition of China’s wall as Lt. General Mr. Kaul was saying
that on China Border there is no firing, no firing, no
firing. But what was the result in the end, you know
better............ If you honour me, your husband, then you
should tender your resignation from the job forthwith". He
further sternly warned her: "If you still do not come round,
what would happen in future, will entirely be your
responsibility and I may not be blamed for that". He ended
the letter with a hostile note, repeating the threat: "I may
write, what will happen in future. Entire responsibility of
future solely depends upon you. It is the question of life
and not of service..... This is time of your test. Reply
this letter." The sentence, ’It is the question of life and
not of service’ read in the context, clearly conveys to the
wife a threat that the choice open to her was between ’life’
and ’service’, that is to say, she would not be left alive
if she did not give up the ’service’. This letter
unmistakably reveals that Rama Nand had worked his feelings
at his wife’s persistent refusal to give up service and live
with him, into such a frenzied resolve that if his wife did
not, as he desired, ’mend’ her ways, he would ’end’ her
life.
Even after this letter, there appears to have been no
alleviation or change in this revengeful attitude of the
husband towards his wife. This is discernible from Rama
Nand’s last letter dated May 9, 1972 (Ex. PAB) addressed to
Sumitra. In this letter also, he cannot conceal his feeling
of being "sick of you". He writes, "...... the difference in
views can make life troubleful or as well can lead towards
downfall as I already told you", that "to deceive any true
person can only be a sin and nothing else". He appears to be
giving her a last warning, a last chance to come round and
come home when he writes that "time is short I will again
request you that if you try to come home on Saturday, it
will be good .... I do not feel good.... you definitely try
to come, if you cannot come on Saturday then come on Sunday,
otherwise...."
These letters vividly reveal that despite the repeated
persuasions, warnings and threats proceeding from Rama Nand
accused, Sumitra intransigently and persistently refused to
give up her service at Chanyana, and residence with her
parents, and declined to come and live permanently in the
matrimonial home at Jherwin, and as a result, how the
husband’s feelings of tenderness towards his wife
progressively
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changing into regret, persecution complex, resentment,
exasperation and smouldering hostility, ultimately hardened
into a revengeful resolve in the mind of Rama Nand to end
what he calls "a dog’s life" by putting an end to the life
of his spouse. We agree with the High Court that these
letters reveal that Rama Nand appellant had a strong motive
to murder the deceased.
The second circumstance was also well established. It
had been admitted even by the appellant and his co-accused.
The courts below have found, and rightly so, that both the
limbs of circumstance No. (3) had also been established by
evidence produced by the prosecution. Som Krishan (P.W. 33),
father of Sumitra, had testified that when he went to
Jherwin on receiving a message from the accused about the
disappearance of his daughter, he was shown the Salwar (Ex.
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P-14) and shoes (Ex. P-15/1-2) and told that these clothes
were left behind on the bank of the Sutlej river when she
disappeared. P.W. 33 further stated that this shabby Salwar
(Ex. P-14) which had patches on it, did not belong to
Sumitra and she never wore such a Salwar; nor did the pair
of shoes (Ex. P-15) belong to her. P.W. 33 further
testified: "Then Rama Nand, Shish Ram and Kesar Chand
accused implored me that they may be saved from police
remand. To this I said that I was not conversant with law
but you may tell the truth". This testimony of P.W. 33 has
been accepted by the courts below. We have no reason to take
a different view.
As rightly held by the courts below Sumitra was a
sophisticated and educated girl. It was difficult to believe
that she would do chilly plantation and wear such a patched
and dirty Salwar as Ex. P-14. The very story given out by
the accused persons and narrated by Shish Ram in the
report (Ex. PAQ) made by him to the Police, and repeated by
him and Rama Nand in their examination under Section 342,
Cr. P.C., to effect-that Sumitra had after undressing and
leaving behind her shoes (Ex. P-15) and Salwar (Ex. P-14) on
the bank of the Sutlej, committed suicide by jumping into
the river-was improbable, incredible and false. Thus,
circumstance 3(a) and (b) had also been clearly and cogently
established. This piece of evidence was relevant under
Section 8, Evidence Act and was a definite pointer towards
the guilt of the accused. Circumstance (4) appearing in the
prosecution evidence, was admitted by the accused persons.
Circumstance (5) also stood established. Though a feeble
pointer towards the guilt of the accused, by itself it was
not of a conclusive character. Circumstance (6) has been
seriously controverted. The burden of the arguments of the
learned counsel for the appellants is that the prosecution
had miserably failed to establish that the legless
decomposed
457
body found in the river was that of Smt. Sumitra, and in
such a situation, the possibility of her being alive cannot
be reasonably ruled out.
Although the High Court has held that the body
recovered was that of Sumitra deceased and that the bones
sent to the medical experts were not parts of the decomposed
body found, but appeared to have been fraudulently replaced
with the bones of a child during transmission to the medical
experts, we would assume that the identity of the body found
in the river was not established beyond reasonable doubt. In
other words, we would take it that the corpus delicti, i.e.,
the dead-body of the victim was not found in this case. But
even on that assumption, the question remains whether the
other circumstances established on record were sufficient to
lead to the conclusion that within all human probability,
she had been murdered by Rama Nand appellant ? It is true
that one of the essential ingredients of the offence of
culpable homicide required to be proved by the prosecution
is that the accused "caused the death" of the person alleged
to have been killed.
This means that before seeking to prove that the
accused is the perpetrator of the murder, it must be
established that homicidal death has been caused.
Ordinarily, the recovery of the dead-body of the victim or a
vital part of it, bearing marks of violence, is sufficient
proof of homicidal death of the victim. There was a time
when under the old English Law, the finding of the body of
the deceased was held to be essential before a person was
convicted of committing his culpable homicide. "I would
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never convict", said Sir Mathew Hale, "a person of murder or
manslaughter unless the fact were proved to be done, or at
least the body was found dead". This was merely a rule of
caution, and not of law. But in those times when execution
was the only punishment for murder, the need for adhering to
this cautionary rule was greater. Discovery of the dead-body
of the victim bearing physical evidence of violence, has
never been considered as the only mode of proving the corpus
delicti in murder. Indeed, very many cases are of such a
nature where the discovery of the dead-body is impossible.
A blind adherence to this old "body" doctrine would open the
door wide open for many a heinous murderer to escape with
impunity simply because they were cunning and clever enough
to destroy the body of their victim. In the context of our
law, Hale’s enunciation has to be interpreted no more than
emphasising that where the dead-body of the victim in a
murder case is not found, other cogent and satisfactory
proof of homicidal death of the victim must be adduced by
the prosecution. Such proof may be by the direct ocular
458
account of an eye-witness, or by circumstantial evidence, or
by both. But where the fact of corpus delicti, i.e.
’homicidal death’ is sought to be established by
circumstantial evidence alone, the circumstances must be of
a clinching and definitive character unerringly leading to
the inference that the victim concerned has met a homicidal
death. Even so, this principle of caution cannot be pushed
too far as requiring absolute proof. Perfect proof is seldom
to be had in this imperfect world, and absolute certainty is
a myth. That is why under Section 3, Evidence Act, a fact is
said to be "proved", if the Court considering the matters
before it, considers its existence so probable that a
prudent man ought, under the circumstances of the particular
case to act upon the supposition that it exists. The corpus
delicti or the fact of homicidal death, therefore, can be
proved by telling and inculpating circumstances which
definitely lead to the conclusion that within all human
probability, the victim has been murdered by the accused
concerned. In the instant case, Circumstances (1) to (5), in
their cumulative effect, are not only inconsistent with the
innocence of Rama Nand appellant, but ineluctably and
rationally compel the conclusion that Sumitra has died and
it is Rama Nand appellant who has intentionally caused her
death. Circumstance (3) involves an admission by Rama Nand
and Shish Ram accused that Sumitra has met an unnatural
death. The only difference between the prosecution version
and the defence version is as to whether Sumitra committed
suicide or had been killed by Rama Nand appellant. It has
been found that the story of the suicide set up by the
accused is false. The articles Salwar (Ex. P.14) and the
shoes (Ex. P-15) do not belong to her. They were planted by
the accused to lay a false trail and to mis-direct the
investigation. This circumstance taken in conjunction with
the others, irresistibly and rationally leads to the
conclusion that she has been murdered by Rama Nand appellant
and her dead body has been disposed of by the appellants
Shish Ram and Kali Datt.
For the foregoing reasons, we dismiss this appeal and
maintain the convictions and sentences of the appellants.
S.R. Appeal dismissed.
459