MAHABIR MANDAL AND OTHERS versus STATE OF BIHAR

MAHABIR MANDAL AND OTHERS

STATE.OF BIHAR

March 1, 1972

[J.M. SHELAT, H. R. KHANNA AND G. K. MITTER', JJ.]

Penni Code-Murder-Death hy poisoning-Tests. The fi'i:H apoellant c1nd another were conviced under s. 302 read 11ith ss. 34. 1208 and 201 of the Penal aide and two other accused who wcte tried along with them were convicted under ss. 120B and 201. On 1hc materials on record, the trial. Court and the High Coun found that the first appellant was responsible for the death of ·the deceased by poisoning. · ·

The doctor who performed thr~ post mortem examination on the dead body gave ~videnc.e that the death of the deceased might have been normal death. He ruled out an asphyxia! death by morphine poisoning, hccause, according to hin1. there was no indication of any of the followinl? characteristics which are to be found in C"Jses of such death: "(a) Right lung is full of blood and left is empty (b) Lividity of faces ~nd fingers and nails (c) Congestion of the brain (d) Froth or blood froth in the trachea (c) Puncti form ecchymosis in the Jungs with congestion l 1f lungs,.. He v.•as declafcd hostile and anotmr doctor examined by the rrosecution also stated that he c:ould not form any opiniOn about the cause of death except tha~ death had resulted due to respiratory failure.

Confirming the conviction of the R'rst appellant for murder arid allow-ing the appeals in part,

HELD : (_i) The circumstances of the case and the evidence on record clt!arly point out that the· first appellant was responsible for the death o'i 1 he deC•!ascd and the death was caused by poisoning. When there is no eye witness of the occurrence, the court should not insist upJn evidence r1:garding the exact manner i!l which the death was caused. Poison ca·n he. administered not only orally b.ut also hypoderm'ically or intervacula1rlv '' ith the h<lp of syringe. In the present case, the conduct of the first ,1µpellan1 in 1•omoving the <l~d body immediately after the death of tho deceased and the same remaining submerged in water for more than 2.4 hours pr.:!vented promt post mortem examination on the dead body. On tbc n1aterial, it can be said that there v.[1]erc some features Jikc the congestion ,,f both the lungs, the kidney. the liver and the spleen of the victim, \~hich. according to the doctor. Y.'Crc indicative of death by respiratdry fa.ilur-~ <ind the same cbul<l Ix! caused hy poisoning. The fact that the hi.fart of the deceased nt the time of post mortem cx:lminaticn \\'as founJ •o be empty \\IOuld not rule out asphyxia! death as ':l. result of poisoning. Jn many casc!i of -asphyxia! death both the sides of the heart are found \(l be full if examined soon after death but after rigor mortis has set in .. 1hc bean is found contracted and ~mpty. The fact that no poison could he detected in the viscera of the deceased would not n1ilitatc against the conclusion that the death of the deceased was due to poisoning. There .:ire several poisons •Nhich do not leave any characteristic signs as can h~ seen on post mortem cxan1ination, r653A~Dl~

Taylor's Principles and Pracfice of Mt!dical jun'sprudenc:e, T.,J.'e/frh Edit;on, p. 199; Moc/i's Medical Jurisprudence ancl .Toxicology Se~·enteeflth Edition pp, 125, 447; Legal Medit:i11e, Pathology and To.<icoloRy, l>.1• Gonzales, referred to.

(ii) If circumstantial cvjdencc in the absence of direct proof is so deci-sive that the Court can unhesitatingly hold that the death was as result of administration of posion (though not detected) and that the posion must have been administered by the accused person, then conviction can lY.:: rested on it. Therett.Jre 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.

(ill) No case has been proved against two of the appellants and th<ir .conviction has to be set aside. The rule in section 162 of the Code o[ Criminal Procedur~ is not applicable to statements falling within the pro-visions of clause ( i) of section 3:! of the Evidence Act or to affect the provisions of section 27 of that Act. But there is nothing in the present cai;e to show that statements made by the two appellants to the police, on whicJi the p.ros~cution ti~licd, resulted in the discovery of any incrimi-nating material as may make them admissible under section 27 of the Evidence Act. As such the aforesaid st':ltements must be excluded from consiOOration.

Anant Chintaman Lagu v. The Srate of BomQay, fl960l 2 S.C:R, 460 and State of M.P. v. Rc.mkrishna Ganapaiia Limsey 4' Ors., A.LR. 1954 S.C. 2, referred to.

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 (241. 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, I 20B 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 period of four years. No separute sentence was awarded for the olTencc under section 1208 Indian Penal Code. The sentences

warded to each of the two accused were ordered to run concur· rently. 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 period of three years. No separate sentence was awarded for tlie offence under section 120R II Indian Penal Code to Mahadeo and Kasini. The appeal filed by Mallabir, Dasrath, Kasim and Mahadeo was dismissed by the Patna High Court. The four convicted accused have now come up in appeal to this Court by special leave.

Mahabir accused, who was practising as homeopathic doctor at Jamalpur in district Monghyr, is the father of Dasrath accused. Dasraih was_studying in the final year in Medical College, Dharb-hanga at the time of occurrence an<i 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 servant to look after Mahabir's field.

Indim Devi deceased (18) was the wife of Dasrath accused and daughter of Baijnath Manda! (PW 2) of Surajgarh ai 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 ho.use for- about five years. The reasoris for the delay in the performance ,of Muragawan (second marriagp) ceremony. after which girl goes to her husband's house, acoording to the prosecution_ case, was that Mahabir accused demanded about Rs. 2;500 as Dan Dahej from Bai_inath PW. The amount was. however, not paid by Baijnath. Letter dated March 29, 1962 wus then received by Baijnath from Dasrath accused wherein Dasrath reminded Bai_inath 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 cremony of Indira was performed in April 1962 and Indira went to the house of her hu_sband and his father in Jamalpur. few months after that, in the month of Bhadon: 1962, Baijnath tooJ.. Indira to his ho11se after reoeipt of letter for that puriiose from Dasrath accused. . few weeks thereafter Indira was taken bv 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 letter to Baijnath to take Indira to his house in Surajgarh. Indira was accordinglV taken in the month of December 1962 to Baijnath's house. Mahabfr after that expressed his reluctance to take back Indira to his house. In May 1963 the Tilak ceremony of·.Mahabir's d<iughter 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·

[1972] 3 s.c.R

SUPREME COURT REP.ORTS

oQf Mahabir. Mahabir and Dasrath accused did not like this act of ".Baijnalh. in bringing Indira and leavin!I her at their house. q.i June·?, '1963 Mahabir wrote letter to Baijnath wherein ~e complained that some people had set fire to t:he house of Mahabir ·qn 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 Manda! (PW 18), who is cousin and partner in hotel business of Baijnath PW . . and asked Bhai Lal to request Baijnath to take his daughter Indira from Mahabir's house, becau~ Indira was having illicit intimacy with her.husband's you!lger brother who was an engineering student. Mahabir also told Bhai Lal that if Baijnath would not take Indira, he (Mahabir) would give some fatal in.iection to Indira. Blfai Lal thereupon sent letter dated August 8, 1963 to Baijnath in an in-·sured cover. Referring to the talk with Mahabir, Bhalla! stated in that letter : '''In the end, Doctor Babu told us that now he would take his action v~ry 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 day or two for the pain in her abdomen and the girl a!SQ says "Babuji please give me injection in at an interval of 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 abouti it and will depart from my house for ever. He was saying that he would take that action within month."

· Indira died in the house of Mahabir accused in Mohalla Naya-11;aon in Jamalimr on the night of September 17, 1963. Mahadco accused earlier on that evening had been fold 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 Kasirn and Gobind, another servant of Mahabir. Mahadeo then brought taxi driven by Kedar Nath Upadhya accused. Mahadeo went with Mahabir ac-cused inside the house and saw the dead body of Indira lying on 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 dea4 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 KasiJn ac-cused sat oli the front seat along with the driver. cement bag with bricks was placed in the boot of the taxi. The dead body was

then taken to Kamarganj, Ghat on the bank of Ganges at dis-tance of 21 miles from· J amalpur. A'.t 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 J amalpur 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 tlhe days of the occurrence posted at police post Nayagaon. On the morning of·September 18, 1963 when he wen~ to the tea stall for taking tea. lie heard from some ~rsons about the death of Indira and the removal of her dead body at night. The Head Constable gave this information at 11 am. to Sul>,lnspector Kishori Lal (PW 21) at Jamalpur police station. The Sub Inspector made an entry abo•Jt the information in the station diary.

Sub Inspector Kishori Lal then went to the house of Mahabir 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 Septembjll" 18, 1963, it is stated, Baijn!lth PW sent his younger brother Jagdish (PW 9 l to Monghyr to make some purchases. Baijnath also asked Jagdish to go to Nayagaon and meet Indira. fagdish 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 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 Ui spite of search. Outside the dispensary of Mahabir, the Sub Inspector found lying on table two empty ampules of coramine, one empty phial of homeooathic medicine on which words "Mere sd." were written and two empty ampules with words "distilled water fo1 injection"' 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 18, 1963 ASI Birbhadra Singh went with Mahadeo accused to place

called Chandi As than on the bank of river Ganges and spread net in the river, but the dead body of Indira was not found there. The police party then returned tp the police station. There was further interrogation of Mahadeo and ~asim accused. Early 011 the morning of September 19, 1963 at about 5 a.m. ASI Birbhadra Singh accompanied by Mahadeo and Kasim ·accused went to Kamar-!!anj Ghat. place was then pointed by Mahadeo accused. From ihai place Mahadeo a~cused brought out of tihe water the dead body of Indira. bag full of bricks was found tied to the waist of the dead body. ASI Birbhadra Singh then prepared the inquest report and took into possession ,the·bag·filled with bricks.

Post mortem exan1_ination on the dead body of Indira was per-formed by Dr. Hari ~hanker Prasad (PW 21) on September 19. J 963 at 4.30 a.m. at. Sadar Hosp.ital Monghyr. The doctor found greenish discolouration over fuce and abdomen and an abrasion 2! x l" on left cheek. According to the doctor, Indira had died within 36 to 48 hours before the post mortem examination. There wrt~ no mark of ligature or wound on !he neck. The. skull. and \t'rtebrae were found t<l be normal. Right lung and left lung were found congested. Heart wa> nonnal and empty. Liver,' spleen :md kidney were "normally congested'". Hladder was normal and ~mpty. Viscera were preserved and sent to the Chemical Examiner. According to the report of the Chemical Examiner. nei poison :ould 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. Ac-;ording to that statement, Mahadeo along with Mahabir and Kasim accused as well as Gobind had taken the dead body of Indira from Ylahabir's house to thebank 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 .:oun on September 30, 1969. Kedar accused too was arrested . .\ttempt was also made to arrest: Gobind but he was found to be "hsconding.

It is also aUeged by the prosecution that Dasrath accused who was in the Darbhanga Medical College h.!istel was found absent from the hostel during, the days fronJ Sept~mber 14 to September i9, 1963.

Mahabir accused at the trial gave the following version of tlte oc-:urrence :

"On 17-9-63 at 8 p.m,. she (Indira) died. About months before it, she was seriously suffering from stomach trouble and. there was no hope for her life.

Baijnath lived at _my house for four days and attended her. Letter (Ex\. 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 morn-ing 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 conditon. 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 to!<! that she was not feeling well. Then I began to feel her pulse. All of sudd~n she had con-vulsion and she died within 4 seconds. I could not un-derstand as to what was the cause of her death. I am myself doctor; There was no necessity of beating drums (spreading news) as to her illness."

According further to the statement of Mahabir, he 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 I a.m. Jitan Man-da!, Thakur Manda! and Mahadeo went with Mahabir when the dead body was p11t in .the riyer. 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 1 O'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 specially younz girls are cent per cent drowned _because while burning, tlie clothes are ·burnt and the dead body ~ecomes naked. Hence after putting fire in the mouth of the dead body of young girl the same ii ~erally 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 ln Calcutta and having told him that he (Mahabir) would give fatal injection to Indira. The other allegations of the prosecution were a!so 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 Crimina! Procedure stated that he was at Darbhanga during the. days of the present occurrence and was staying at the house of close relative, Shri Ra!ll Lakhan Bhagat Advocate, be-H cause 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 simpliciter. l 3-L1031 Sup.CTI''

[1972] 3 s.c.R.

Mahadeo accused in the course or 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 CHACHRI and that he was going to bring KAFAN. Ladies were weeping inside the house. Oobind was not there. It was rainy season. At the instance of Dr. Saheb, Thakur and myself kept bricks in gunny bag. Dr. Saheb wen~ .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, I, 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 Cour\ 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 Dasrat'h accused had con· spired 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 view to screen themselves from legal punishment. Mahabir and Dasrath accused were ac. cordingly convicted and sentenced as above. Kedar accused was given the benefit of doubt and was acquitted. As regards Mahadeo and Kasim accused, it was held that though they had .joined in the disposal of the dead body, they were not partie5 to the conspiracy to murder Indira. These two accused were, however, found to have conspired to dispose of Indira's dead body with view to screen .Mahabir and Da.srath accused from legal punishment of murder. Mahadeo and ~asim 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 :

"(I) 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.

.(2) · Dasrath had in the meantime come in some sort df close intimacy with girl medical student of Kanpur, named, Madhl!ri Chourasia and was on correspon.dence 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'$-!place neV'er to be called back again.

(4) On the asking of Dasr.ath and Mahabir the father of Indira brought her back to his place in Decem-ber, 1962.

(5) Indira was not asked to join her husband's family on the occasion of the il'ILAK of Mahabir's daughter and third son Mahendra \in May, 1963.

(6) Baijnath went uninvited with Indira to Nayagaon on that occasion :,md he was insulted by Mahalfir and Dasrath; but still Baijnath left Indira there and returned alone to Surajgarh.

(7) Mahabir immediately wrote post card (Ext. l /3) expressing his acute bitterness, disgust and hatred for Baijnath .al!d his daughter.

( 8) On 7th August, 1963 Mahabir in Calcutta had talks with Bhailal an uncle of Indira and Mahabir con-yeyed to him his idea of injecting Indira to deal\! within month if she was not removed by her father from his place.

(9) Dirty allegations were rnade against he.r charac-ter and she was described by Mahabir before Bhailal as cobra.

( 10) Bhailal immediately conveyed to Bai.inath the gist of the conversation he had with Mahabir by letter Ext. 1/4 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) Su,dden]y Indira died on the night of 17-9-1963.

(13) No relation or neighbour at Nayagaon came to know of her death on that evening.

(14) The father of the deceased p:irl was not informed about the death although Sura.jgarh was not very far

and there was undqe 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 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 or Chandi As than 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 .T amalpur 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 su_bsequent .clue furnished by him the police party came to Kamarganj Ghat and recovered the dead body from the river bed.

(20) Upon post mortem examination heart was found empty and norma_l and it excluded the possibility of natu-ral death due to syncope or vagal inhibition.

(21) Dasrath was absent from his hostel at Darb-F hanga 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 unsub-stantiated."

In the result, the conviction of the accused-appellants was upheld and their appeal was dismissed.

Jn 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 submi.,sion made is that there is no cogent evidence on the record to show that he was present at

his house in J amalpur on the night of occurrence. As regards Kasim accused, the counsel contends that he is not proved fo 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 con-tentions 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 de--c ceased 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 (P\Y 2) . and are corroboral'cd 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 m;my efforts to send Indira to the house of Mahabir, but Mahabir declined t'o keep her in his house. ,In May 1963 the1marriage of Mahandra and 'rilak ceremony Qf Mahabir's 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 hifo house on the above occasion and made no secret of his resentment. 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 l:lajjnath 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 con-tinued to stay at the house of Mahabir. Mahabir, however, did not feel happy over this. Mahabir also suspected that some people had set fire t.o his house on the occasion of the marriage of his daughter at the instigation of Baijnath. On June 7, 1963 Mahabir -G wrote letter to Baij1Jath in the course of which Mahabir stated:

"So for your daughter is living peacefully but you, who have kept your daughter (here) sccrcfly have don~ 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 Manda! are like the TAT! 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.

Hence you1should come as soon as you receive the letter and have face to face talk~ Your daughter can live or go only after settlemept made in the talk. You should not hesitlate 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 abo.ve letter has been admitted by Mahabir in his statement under sect.ion 342 of the Code of Criminal Proce-dure. 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 cousiri of Baijnath PW and runs hotel business, shows I.hat on August 7, 1963 Maha· bir 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 keep her in his house. Mahabir also added at that time that Baijnath's daughter was having iJlicit intimacy with the other son of Mahabir 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 Baijnat;h as cobra in the house. According further to Bhai Lal, Mahabir held out threat while leaving that if Baijnath did not agree to take back his daughter, he would give some fatal in· jection to Indira. On the following day Bhai Lal sent letter nanating the above facts ro Baijnath. As some money was also being sent along with tha't letter by Bhai Lal to Baijnath, the letter and the inoney 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 Mahabir conveyed through Bhaila\ in the first informa-tion report. Both the trial court and the High Court accepted the prosecution evidence in this respect and nothing has been urged in !his Court as may justify· interference with the above appraise-ment of evidence ..

It is oommori case of the prosecution and the defence that Indira died suddenly in Mahabir's house in his presence on the night between 5eptember 17 and September 18, 1963. The evi-dence of Baijnath shows that no intimation about the death of Indira was sent to him. Mahabir accused Jailer on that night ar-ranged 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 Kamarganj Ghat at distance of 21 miles from the house of Mahabir in Jamalpur. bag full of bricks was also carried in the taxi. The dead body of Indira was then thrown into chest-deep water Qf. the Gagges after the· bag full of bricks had been tied to the waist. The above facts are also not disputed

by Mahabir. According to him, they took the dead body at about 1 O p.m. and after the body was thrown into the Ganges they re· turned 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 8 was found to be absconding ,and was not tra~ed till he surrendered himself in court in September 30, 1963.

The dead body of Indira could not be recovered on Septe111ber 18, i 963 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 pn the dead body of Indira .deceased was performed by Dr. Bari Shanker Prasad. There was greenish discolouration over the face and abdomen and an ante morte11 abrasion 11 as found on the left cheek. Eyes were protruding anci corneas were hazy. Decomposition had started, and according to the doctor, the time between the death and pos( mortem examina-D tion 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. lt is no. doubt true that there is no ocular evidence in this case regarding the commission of the crime but the chain of diffe-rent circumstances are consistent only with the hypothesis of the guilt of Mahabir. Mahabir was no~ only inimically disposed to• wards Indira, he had also held out threat that if she was not taken from his house he would administer an injection to her as rcs:.:lt cf v.'~_\C'h she v10:11d d:·:. Th::: ccr:du~t o~ ~~luhcbir ~[l.:r the death of Indira at time when according ~ 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 post card to lndira·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 taxi and taking the dead body of Indira at the dead hour of the night to Kamarganj Ghqt at distance of 21 miles clearly indicates his de;i:·c to surreptitiously remove the dead body and throw it at place from which it would not be recovered. It is significant in this connection to observe that Monghyr is at distance of only five or six miles from Jamalpur while Lal Darwaza burning ghat is at distance of nine miles from Jamalpur. Both Lal Darwaza burning ghat and Monghyr are on river bank. The fact that the dead body·

w~ ta!'en to .a much more distant place like Kamarganj Ghat which is 21 mtles away tends to show that Mahabir wanted that the place where th7 dead body was. t1!rown should not get known to others. The ty1!1g of bag contammg bricks to the dead body bet~ays further anxiety to prev~nt the floating and consequent de-tect10n 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 itot sent for before the dead body was disposed of. The stealthy removal of the dead body of Indira at late hour of the night and the undue haste with which the body of Indira was thrown in the river at distance of 21 miles from Nayagaon is gravely incri-minating circumstance and no plausible explanation has been fur-nished by Mahaoir for this abnormal conduct.

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 further question, Dr. Prasad stated that the death of Indira might have been ·a normal· death. Dr. Prasad ruled out an a~phyxial death or death by mor-phine poisoning because, according to him, there was no indication of any of the following characteristics which are to be fonnd in the case of such 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 con-gestion 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 Singh expressed his agreement with Dr. Prasad regarding the characteristics of asphyxia) death.

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 1uled 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 hypo-dermical!y or intravascularly with the help of 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 exa-c mination 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 whi9h, accord-ing to Dr. Kameshwar Singh, were inflicative 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 n.ot rule out asphyxia!:, death. as result of poisoning. According to observations on page 125 of Modi's Medical Jurisprudence and Toxicology, Seventeenth Edition, in many cases of asphyxia! 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 reportj 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 ro poisoning. There are several poisons, particularly of the synthetic hypnotics and \egetable alkaloids groups, which 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 4 77 of the above men-tioned book by Modi :

"It is quite possible that person may die from the effects of 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, esQeeially the alkaloids and glucosides, may, by oxidation during life or by putrefaction aft.er death, be split up into other substances which have no

characteristic reactions sufficient for their identifica-tion."

Similar view has been expressed by Lambert in his book "The Medico-Legal Post-Mortem in India". We may also in this con-text 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 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 number of cases where the deceased dies as 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. Re-ference in this context n:iay be made to the following obsei;vations of Hidayatullah J. (as he then was) who spoke for the majority in the case of Anant Chintaman Lagu v. The State'<Jf Bombay(') :

"A case of murder by adminisl'ration of poison is al-most 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 manner calculated to avoid i!s detection. The greater his know-ledge of poil;ons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assis~<;e 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 case where there is nothing else such course would be incumbent upon the prosecution. There are various factors which militate against successful isola-tion of the poison and its recognition. The discovery of the poison can only take place either through pmt .mor-tem examination of the internal organs or by chemical analysis. Oftien enough, the diagnosis of poison is aided by the information which may be furnished by re-latives and friends as to the symptoms found on the vic-tim, if the course of poison has taken long and others co 11960! 2 s.c.R.

have had an op_po,rtunity of watching its effect. Where, however, the poison is adminis~ed in secrecy and the victim i~ rendered unconscious effectively, .there is nothing to show how1he deterioration in the condition of the vic-tim 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 ,iuedjcal jurisprudence by different authors wherein it has been stated'that the pathologist's part in the diagnosis of poison-ing is secondary and· that several poisons particularly of the synthe-tics hypnotics and vegetable alkalodis groups do not leave any characteristic signs which cart be noticed on post mortem examina~ tion. The following dictum was laid down in the case :

"The cases of this Court which were decided, pr<>· ceeded upon their O'Yn facts, and though the three pro-positions must be J<ept in 111ind always, the sufficiency of the evidence, direct or circumstantial, to establish mur-D der by poisoning will depend on the ·facts of each case. If the evidenee in 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 satlifac-torily, either directly or by circum~tantial evidence,. then the benefit of the doubt will have to be given to the ac-cused person. But if circumstantia.1 evidence, in the ab· sence of direct proof of the three elements, is so decisive that th.e. Court can unhesitatingly hold that death was-a result of administration of poison (though not detected) ancf 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 oart 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, Madhy,a Pradesh v. Ramkrishna Ganpatrao Limsey and Ors. (1) wherein this Court dealt with an appeal against acquit-tal and 'observed that the exercise of extra-'Ordinary jurisdiction under Article 13 6 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 bee!\ done. . The above observations are· hardly of any assistance to the appellant The other observation in that case relating to speculation in the absence of any material were made in the light of the facts of that

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 (orth on behalf· of the accused that Indira deceased might have died due . to vagal inhibi~ion as 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 acc.used. 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 far off place without informing her father or even his own son about the death. The entire conduct Qf Mahabir is inexplicable on any rational ground and is consis• t,.nt only with his guilt.

We may now deal with the case of Dasrath accµsed. Accord-ing to the prosecution case, Dasrath was present in his house in Jamalpur . on the night of occurrence. pasrath, however, has ·denied this .allegation and- has stated that 'he W<IS away to Dath· hanga during those days. There is no ~liable evidence ·t.o show tllat Dasrath was present in the house on the· night in question. Reliance has been pli!ced by the prosecution on the testimony of Shih.an Manda! (PW 8) and Mushahru Manda! (PW 15) who have deposed that they saw Dasrath reading book near the -dispensary room of h_is 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 fou_r days would show that not much reliance can be placed upon hi~ 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 suit iiled 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 state-ment 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 Oasrath accused at his house on tile fateful night.

fhe fact that Dasrath was not marked present in his hostel from September 14 till September 19, 1963 would not necessarily show that he was pre~nt in his house in J amalpur on the night of September 17, 1963. According to Dasrath, he was in those days staying with relative Shri Ram Lakhan Bhagat Advocate as Shri Bhagat's son was having typhoid. The fact that Dasrath did not

~ adduce evidence in SU.Pport of his version would not lead to the conclusion that he was present at his house in J amalpur on the night of occurrence.

Reference has also been made to some letters between Dasrath and 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 sµfficient 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. 2,500 for futther education to Dasrath. It may be mentioned that subseqm!nt letter dated July 6, 1962 of Dasrath _to Baijnath shows his attachnient towards his wife Indira deceased.

Coming to the case of Kasim, w•: 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 pr~cu­tion upon the statements alleged to have been made by Kilsim and Mahadeo accus_ed at the police station in the presence of Baijnath PW after Baijnath had lodged .report at the police station. Such statements are le>!la!ly 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 police officer in the course of an investigation shall be signd 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 pro-viso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be 11sed by the accused and with the permission of the court by the prosi,cution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act and when any part of such :'.atement is so used, any part 'thereof may also be used in the re-examin~cion of such witness for the purpose only of explaining any matter re-ferred. to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of clause , ·G 1 of section 32 ·of the·Indian Evidence Act or to affect the provi-siens of section 27 of that Act. It is also well established that the bar of inadmissibility o~rates not ollly on statements of witnesses but also on those of the accused 1$ee Narayan Swami v. Emperor (')]. Lord Atkin, in that case, while dealiing with .section 162 of the Code of Criminal Procedure observed :

"Then follows .the Section in question wh)ch iS &awn in the same general way relating to "any person." That (I) [1939] P.C. 47.

the words in their ordinary meaning would inclr.de any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of number of persons none of whom or all of whom may be suspectep at 'the time. The first words of the Section prohibit;ing the stateme.nt if recorded from being signed must apply to all the statements made at the time and must therefore apply to statement made by 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 police officer, unless it be made in the immediate presence of 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 ·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, are of the opinion that no case has been proved .against Dasrath and 1Kasim accused.

As regards Mahadeo accused, we find that it is the case of .the prosecution and ihis fact is also admitted by Mahadeo accused in his statement under section 342 of ,the Code of Criminal Pro-cedure 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 K amarganj Ghat. The dead body also thrown in the Ganges by Mahadeo. Mahadeo· further · admits that he pointed out the dead body to the police aRd ·brought it , out of the Ganges. The circumstances in which the death of Indira took P.lace 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 Mal!adeo was not Unaware of ihe fact thit Indira's death was not naaural and had 'been brought abOut by M•bir. Mahadeo, in the circurostan-, was rightly . convicfed for olfence llllder ~tion 201 Indian Penal . -Code for causing the ·~ of the dead· body with ·view to screen the murdiirer from legal .,punlshinent. ·

As both Dasrath, aQd.. Kiisiln .are being acquitted, the charge 1Jnder section 1208 ladilll PC11al Code against Mahabir for coli· spir111Cy with Diisrath to ·murder ~ and against Mahadeo tor conspiracy with Kasim for causing disappeannce of dead body .of Indira must fail.

MAHABIR v. STATE (Khanna, /.)

The result is that appeal ot-Dasrath and Kasltu is allowed. Their conviction is set aside and they are acquitted. The con-viction of Mahabir and Mahadeo for offences under section l 20B 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 score is maintained. Likewise, lhe convic-·e ti on and sentence of Mahadeo for offence under section 201 Indian Penal Cod.p is maintained. The appeal of Mahabir and Mahadeo to this extent is dismissed.

Appeal dismissed.