SAWAL DAS versus STATE OF BIHAR

SAWAL DAS

STAT);: OF BIHAR

January 9, 1974

[M. H. BEG AND P. N. BHAGWATI, JJ.J

Indian Penal Code (Act 45 of 1860), s. 34 and 302-Circun1sta11tial evicknce-Accusedchargedunders. 302/34-When accused1nay be convicted unders. 302, when the others are acquitted under s. 302/34-0./Jence under s. 201-Sentence.

Evidence Act (1 of 1872) Ss. 103and106-Scape of

The appellant is the husband of the deceased. The evidence in the case estab-lished that, the relations between .the· deceased and her mother-in-law; were very strained; that, on the morning of the murder following quarrel between them the appellant went with his wife, the deceased, into room, into which his father and mother then followed; that, immediately thereafter, cries of the murdered woman were heard to save her from being killed; and, that, little while later, the appellant and his father conveyed the dead body of the deceased and disposed it of: by burn-ing it at the burning ghat without informing the relations of the deceased who were Jiving in the town and without performing any funeral rites.

On this evidence, rejecting the appellant's contention that the deceased died accidentally of injuries caused by fire, the trial court convicted the appeJlant, his father; and mother for offences under s. 302/34 I. P. C. The trial court also con. victed the appellant and his father under s. 201, J, P. C. On appeal, the High Court acquitted them of the offence under s. 302/34 I. P. C. but found the appellant alone guilty of the oftCnce under s. 302 J. P. C. The High Court also found the appellant and his father guilty under s. 201 I. P._C. and passed sentence of three years against the father. No separate sentence on the appellant was passed in view of the sentence of life imprisonment for the offence under s. 302. '

In appeal to this Court,

HELD : (Q The evidence regarding death by burning consisted 1nostly of rumours and beliefs. It was clearly hearsay and was rightly excluded by the lower courts.

(2) Under Ss. 103 and 106, Evidence Act, the burden of proving such plea specifically set up by an accused, which n1ay absolve hin1 from criminal liability, lies upon him; though, the quantum of evidence by which he may succeed in dis-charging the burden, may be lower than the burdcil'resting upon the prosecution to establish the guilt of the accused beyond reasonable doubt. The best evidence would have been that of doctor who could have been called by the appellant on his phone, but no doctor was called. [79BJ

(3) But, neither the application of s. 103 nor of s. 106, Evidence Act, could, however, absolve the prosecution from the duty of discharging its general or pri-mary burden of proving the prosecution case beyond reasonable doubt. It is only \Vhen the prosecution has led evidence which, if believed, will sustain con-viction, or, which makes out prima facie case that the question arises of consider-ing facts of which the burden of proof may lie upon the accused. [79D]

(4) In the present case, after the acquittal of the appellant's father and 1nother for murder under Ss. 302/34, I. P. C., the individual liability of the appellant has to be established by the prosecution before he could be convicted under s. 302 J.P. C. simp/iciter.- There is nothing in the present case which could fasten or con-clusively fix the li:ability for any particular or separate act of the appellant which may be said to have caused his wife's death. [79H]

K. G. Patilv. State of Maharashtra, [1964] I S.C.R. 678, Solian Lal v. State of U. P., [1971] l S.C,C. 498 and Yashwant anil Ors. v. Stare of Maharashtra, [1973J I S.C;R. 291, followed.

(5) Further, the prosecution has not examined an important witness namely,. the maid servant, who was on the varandah at the time of the occurrence. Her· evidence was necessar1 for unfolding the prosecution case and hence, the prose-cution should not have withheld her evidence whatever may be its effect upon the ca5e. The appellant could, there ask the Court to give him the benefit of the pre-sumption under s. 114 illus_tration (g), Evidence act and to infer that, if she had been produced, her evidence would have damaged the prosecution case agai~t the appellant. Her statement under s. 164, Cr. P. C., could only be used as evi-B dence to corroborate or contradict her if she had appeared as witness at the trial, and could not be relied upoii by the prosecution. [80 G, H]

Stephan Sneviratne v. The King. A.I.R. 1936 P. C. 289, 300, referred to.

(6) Therefore, although it must be held that the deceased was murdered it was· not possible to find conclusively that the person who could have throttled or done some other act which actually killed the deceased was the appellant and not his· father or mother.

(7) So far as the case of disposal of the body by the appelfant was concerned the circun1stantial evidence \Vas rightly believed and held to be conclusive by both the Courts below. [82G]

(8) As regards sentence, the appeUant deserves the n1aximum sentence that can be imposed under s. 201, I. P. C. distinction between the case of the appel'-Jant and his father, as regards sentence is justified because; (a) It was the duty of the appellant as husband to have done something to protect his wife even if fl is assumed for the sake of argument, that the actual death may have been brought about by the acts of others, and, (b) the appellant had taken leading part in dis~ posing of the body of the murdered woman. [83BJ

CRnUML APPELLATE JURISDICTION : Criminal Appeal No. 70' 1972.

Appeal by Special Leave from the Judgment and Order dated the· 16th September, 1971 of the Patna High Court in Criminal Appeal No .. 90 of 1968.

A. N. Mui/a, S. N. Misra, S. S. Jauhar and Sud/la Misra, for the· appellant.

R. C. Prasad, for the respondent.

The Judgment of the Court was delivered by

BEG, J.-The appellant before us by special leave, Sawal Das, hiS' father Jamuna Prasad, and his stepmother Ka!awati Devi, were charg-ed with Offences punishable under Section 302 Indian Penal Code· simpliciter on the allegation that they had intentionally caused the· death of Smt. Chanda Devi, the wife of the appellant, on 28-5-1965,. in their house in Mohalla Andi Gola, in Muzaffarpur, in Bihar. The appellant Sawal Das, his father Jamuna Prasad, their motor driver Sita Ram, and eight other persons were charged under Section 20! Indian Penal Code for having caused the disappearance of the body of Smt.- Chanda Devi with view to concealing the murder. Further-more, Smt. Kalawati Devi was charged under Section 302/109 Indian Penal Code for having instigated the murder of Chanda Devi. The Trial Court had amended and converted the charges against the appe-llant and Jamuna Prasad and Kalawati Devi into those under Sections 302/34 Indian Penal Code and convicted each of them with the aid of Section 34 Indian Penal Code for the offence of murder and sentenced

[19741 3 S.C.R.

them to life imprisonment. Jt had also convicted the appellant and his father under Section 201 Indian Penal Code, but it did not pass separate sentences against them for this offence. The driver Site Ram was also convicted under Section 201 Indian Penal Code and senten-ced to three years rigorous imprisonment. It acquitted all the other accused persons. On appeal, the High Court of Patna had acquitted the appellant, his father, and his step-mother of offences punishable under Section 302/34 Indian Penal Code, but it found the appellant alone guilty of an offence punishable under Section 302 Indian Penal Code simpliciter and sentenced him to life imprisonment. It had also found the appellant and his father guilty under Section 201 Indian Penal Code, but, while passing sentence of three years rigorous im-prisonment on Jamuna Prasad, it had not passed separate sentence on the appellant in view of his conviction under Section 302 Indian Penal Code. It had allowed appeals of Kalawati Devi and Sita Ram and acquitted them.

The whole case against the appellant depends upon circumstantial evidence. There is no eye witness of the murder which was alleged to have 'been committed by the appellant, his father, and step-mother conjointly on the morning of 28-5-1965 at about 8.00 a.m. The Ses-sions Judge had relied upon the following proved facts and circums-lances to convict the three accused persons of murder under Sections 302/34 Indian Penal Code :

I. The relations between Sm!. Chanda Devi and her step-mother-in-law, Smt. Kalawati Devi, who were living in the same house with their respective husbands and children, were strained so that there were frequent quarrels between them.

2. The appellant as well as his father Jamuna Prasad used to take the side of Smt. Kalawati in the quarrels between the murdered wife and her mother-in-law.

3. On the morning of the murder, there was particularly sharp quarrel between· the deceased and Sm!. Kalawati so that Smt. Kala-wati, who was living in room adjoining that of Smt. Chanda DeYi on the first floor of the house, called out to the appellant that his "rascal wife" was quarrelling with her and informed him as well as Jamuna that either she or Chanda Devi will live in the house hence-forth.

4. The appellant and his father Jamuna Prasad went upstairs to the Verandah where the quarrel was taking place and the appellant took or pushed Chanda Devi inside her room followed by the appellant'• father and his step-mother.

5 .. I1nn1ediatc1y after that, cries of atleast "Bachao" ~~Bachao ", were heard from inside the room. No body heard the voice of Smt. Chanda Devi after that.

5. Immediately after these cries, the children of Chanda Del'i wer · eard crying and uttering words. indicating that their mother was either being killed or had been killed.

7. short while after that, the appellant and his father Jamuna Prasad were seen bringing gunny bag with the help of their driver, Sita Ram, and another person, and keeping it in the luggage boot of the car which had been brought there by the driver.

8. The car, containing the body of the deceased Chanda Devi, was driven fast and taken to what is known as Pahleza-Ghat, 50 miles away, to be burnt there at night. The car was shown to have crossed Sonepur Bridge at 9.00 p.m.

9. The relations of the deceased Smt. Chanda Devi, who were Jiving in the town, were not at all informed by the appellant or other members of his family, that she had died either naturally or acciden-tally.

10. No persons who usually performed the funeral rites in the family were shown to have been informed and there was no funeral procession of the usual kind. But, some of those related to the appe-llant, who were co-accused for ·the offence of illegal disposal of the body, were said to have followed in truck.

11. Some blood, which was said to have distintegrated so much that its origin could not be determined, was shown to have been scraped from the boot of the car as well as from inside the car.

The Trial Court had come to the conclusion that, upon the estab-Jished circumstances listed above, no other inference was left open to the Court except that the appellant and his father and step-mother had conjointly committed the murder of the deceased Smt. Chanda Devi on the morning of 28-5-1965 and that the appellant and his father had then hastily and stealthily disposed of the body in order to oonceal the commission of the offence. It had also taken into account, in coming to this conclusion, the fact that the appellant had unsuccessfully set up plea, in his written statement, that Smt. Chanda Devi, who was alleged by him to be wearing Nylon Saree, said to have caught fire accidentally while she was using Kerosene stove in her room, died of extensive burns on her body and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated and kept bad health due to frequent pregnancies and was also sufferini: from Asthma, weak heart, and abdominal complaints. She had given birth to six children.

The Trial Court observed that no Doctor was called in to subs-tantiate the appellant's plea. Furthermore, it pointed out that, as highly qualified Doctor, Dr. G. B. Sahai, had deposed, normally death · would not take place immediately as result of accidental burning of the kind alleged by the appellant and that there would have been evi-dence of rolling on the ground or other acts of the deceased in attempts to save herself in such an event. The Trial Court had also believed the evidence of the relations of .Chanda Devi that she was enjoying good health so that the bare assertions of the appellant that 'he had II weak heart could not be accept<d. It also observed that no burnt pieces of cloth or marks of smoke or soot on the walls or roof of the room in which Smt. Chanda Devi had admittedly died were shown to exist.

Learned Counsel for the appellant drew our attention to numb" of pieces of evidence, such as boil on the finger of Jamuna multiple irregular areas of suspected burns, varying from l" to 1/3",in length and half inch to 3/4" in width, on the lower third of right fore-arm. ulnar side, of the appellant, when he was examined by Dr. 1. Nath -On 2-6-1965, the statement by witness that he saw some smoke comine .out of the house at the time of the alleged murder, the rumour of her <leath by burning mentioned by several witnesses, which found .Place in the information sent to the Police on 30-5-1965 by Lallu Prasad, P.W. 28, relation of the murdered wife, and into another written information given by Hawaldar Gorakhnath Singh, P.W.3, at the Police Station, on 28-5-1965, and other similar bits of information and belief deposed to by witnesses.So far as the information dated f30-5-1965 (Ex. 17) treated as F.I.R. by the Police, or the information given by Gorakhnath Singh .on 28-5-1965, which, according to the appellant, ought to be treated .1s First Information Report, and other pieces of information and belief given by the witnesses are concerned, it is clear that these are based on hear-say which was rightly excluded. The Trial Court pointed out that the appellant and other members of his family were the sources of these false rumou1s circulated by them so as to protect themselves against an accusation for murder. We, therefore, attach no importance whatsoever either to the document which the prosecu-tion or the one which the appellant placed before us as the First Infor-1nation Report. These contain nothing more than rumour and hear-say because those who could have reported the commission of an ·offence were actually the offenders interested in concealing its com-1nission and misdirecting investigation.

As regards the burns on the body of the appellant, the Trial Court Tightly pointed out that the Doctor had stated on 2-6-1965 that they were 3 or 4 days old. They were not shown to be connected with <iny attempt to extinguish fire which could have burnt Smt. Chanda Devi. The best evidence in such case could have been that of Doctor who, as the High Court pointed out, shCJLi!d have been call<tl but was not called despite the fact that there was telephone in the 'house. ·

We think that the burden of proving the plea that Smt. CI1anJa Devi died in the manner alleged by the appellant lay upon the appe-llant. This is clear from the provisions of Sections 103 and 106 of the Indian Evidence Act. Both the Trial Court and the High Court had rightly pointed out that the appellant had miserably failed to gi•·e ,credible or substantial evidence of any facts or circumstances which .could support the plea that Smt. Chanda Devi met her death because her Nylon Saree had accidentally caught fire from kerosene stove. The Trial Court had rightly observed that the mere fact that some witnesses had seen some smoke emerging from the room, with kitchen nearby at time when food was likely to be cooked, could not indicate ihat Smt. Chanda Devi's saree had caught fire. Neither the murdered woman nor the appeHant nor any member of his family was shown t0 have run about or called for help against fire.

Learned Counsel for the appellant contended that Section 106 o( the Evidenee Act could not be called in aid by the prosecution because that section applies only where fact relating to the actual commission of the offence is within the special knowledge of the ac-cused, such as the circumstances in which or the intention with which an accused did particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(!), that the burden of proving plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is different matter that the quantum of evidence by· which he may succeed in discharging his burden of creating reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. ·Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of dis-charging its general or primary burden of proving the prosecution case beyond reasonable doubt. Tt is only when the prosecution has led evidence which, if believed, will sustain conviction, or, which makes out prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The ,crucial question in the case before us is : as the prosecution dis-charged its initial or general alld primary burden of proving the guilt of the appellant beyond reasonable doubt? ·

Perhaps the Trial Court had adopted more logical course upon facts and circumstances indicating that the appellant was one of the three persons whose conjoint actions had, on the morning of 28-5-1965, resulted in the death of Smt. Chanda Devi. It may be that the appe-Hant was the primary or the main actor in the actual commission of the murder after his step-mother had sought his aid in what appeared to be an appeal to him by her to teach his wife lesson so that she may not be trou1>lcd by her any more. But, the effect of the finding that the appellant went into the room from which the cries of the murdered woman, to save her from being killed, came immediately afterwards, is diluted by the evidence that Jamuna Prasad and Smt. Kalawati had followed him.· The High Court's view could perhaps find some support from the fact that Jamuna Prasad was seen paci· fying and rebuking the children outside while the appellant may have been dealing with his wife in manner which brought about her death, But, all this is matter of conjecture. Lurking but not un-reasonable doubts and suspicions seem to us to envelope and assail the prose· . cution case atleast after Jamuna Prasad and Smt. Kalawati have been acquitted. As the learned counsel for. the appellant has rightly pointed out, after the acquittal of Kalawati and Jamuna Prasad for murder, by the use of Section 34 Indian Penal Code, the individual and not the conjoint liability of the appellant has to be established by the prosecution before the appellant could be convicted under

(l) A.LR. 19S6 S.C. 460.

Section 302 Indian Penal Code simpliciter. Beyond the fact that the appellant is the husband of the murdered wife, who might be ordi-n.arily expected to take t~e ini'.iative in .tea~hing her lesson, espe-cially when Smt. Kalawati had mvoked his aid, and possibly natural reluctance of normal father-in-Jaw to take the initiative or leading role in such matter, both of which could be matters of conjecture or presumptjon only, there is nothing which could fasten or conclusively fix the liability for any particular or separate act of the appellant which may be mid to have caused his wife's death.

We find that the High Court had not dealt with the question whe-ther distinction could be made between the case of the appellant on the one hand and his father Jamuna Prasad and his step-mother Kala· wati on the other quite satisfactorily, so far as the offence of murder is concerned. Nevertheless, we may have agreed with its conclusion, on the evidence on record, that the appellant alone was liable for the murder of his wife Smt. Chanda Devi and we may not have disturbed its finding of fact but for another feature of the case which stares one in the face. We proceed now to deal with this feature.Even if, as the Trial Court and the High Court had correctly held, there is admissible and credible evidence of five witnesses, Ganesh Prasod, P.W. 1, Nand Kishore, P.W. 2, Radhey Shyam Sharma, P.W.9, Laxmi Narain, PW. 16, and Basdeo Prasad, P.W. 27, who are said to have heard or watched from outside, from varying distances, Of what was going on in the Verandah, no eye witness was produced who could prove what actually took place inside the room where the murder was committed. The only evidence given of what could have taken place inside the room was the cry of "Bachao Bachao" although there is some understandable variation between accounts of witnesses as to whether the murdered woman also uttered some more words showing that she was being actually killed. We also agree with the view that the evidence of witnesses about what the children said or did at that time is admissible under Section 6 of the Evidence Act. In view of some evidence in the case that the appellant's children had refrained from revealing any facts against the appellant or his father or his step-mother, when they were questioned by relations or by the Police, it could be urged that there was no point in producing the children. The Court could also have rightly decided, in such circumstances. not to exan1ine them under Section 540 Criminal Procedure Code. But, there is no explanation even attempted to sho\v why the Maid servant, Geeta Kurmini, who, according to the pros:::cution case, was also in the Verandah at the time of the occurrence, was not produced at the Trial although her statement was recorded under Section 164 Criminal Procedure Code and was brought on the record (Ex. 12). This ~tatement could only be used as evidence to corroborate or con-tradict Geeta Kurmini if she had appeared as witness at the trial. The appellant could, therefore, quite reasonably ask the Court to give him the benefit of the optional presumption under Section 114 illus-tration (g) of the Evidence Act and lo infer that, if she had been pro-duced, it would have damaged the nrosccution case against the appe-llant. Her statement, if it had been there as evidence in the case, may very well have shown that it was Jamuna who was taking the leading

part in bringing about the death of Smt. Chanda Devi. There ··is some evidence in the case as to the kind of man Jamuna was. It shows that he was not naturally kind or gentle or amiable individual liked by people. The normal inhibitions of father-in-law with regard to his daughter-in-law, which learned Counsel for the State emphasized so much, may not really be there at all in this case. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maid servant,. was witnessessential to the unfolding of the prosecution case. Her evidence could not be withheld by the prosecution whatever may be its effect upon the case. We think that the principle laid down by Privy --Couneilin Stephen Sneviratne v. the king (1 ), with regard to such witnes, is applicable here. It was observed there (at page 300):

"Their Lordships do not desire to lay down any rules to fetter discretion on matter such as this was is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but, at the same time they cannot, speaking generally, approve of an idea that prosecution must call witnesses irrespective of considerations of number and of reliability, or that prosecution ought to discharge the func-D tions both of prosecution and defence. If it does so, confusion is very apt to result and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automati-cally to discredit them by cross-examination. Witnesses essen-tial to the unfolding of the narrative on which the prosecution is based, must, of course, .be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution". '

Mr. Mulla, appearing for the appellant, has also drawn our at-tention to K.G. Patil V. State of Maharashtra (2). This Court held there that, when two out of three accused persons, each having been charged under Section 302 read with Section 34 Indian Panel Code, were acquit-ted, it must be assumed that the two acquitted persons did not parti-cipate in the commission of the offence at all. It is contented that the natural result of this view is that the 'P"rticular act of the indivi-dual accused which brought about the death of the murdered person must be established beyond doubt before he is singly and separately convicted under Section 302 Indian Penal Code simpliciter.

Our attention was also invited to Soha11 Lal v. State of U.P.,(3} where it was held by this Court that in the absence of evidence to show which act of the accused caused the death of the murdered man, it would neither be proper to convict the accused person. under Seciion 302 Indian Penal Code simpliciter nor under Section 302 read with Section 34 Indian Penal Code, when the High Court bad acquitted the co-accused of charges under Section 302 read with Section .34 Indian Penal Code, and the State had not appealed against the acquittal.

[1964] (I) SCR 678.

(I) A1R 1936 P. C. 289 @ 300.

In the case before us, the High Court had actually altered the con-viction of the appellant from one under Sections 302/34 I.P.C. to one under Section 302 I.P.C. thereby implying that he was not guilty of any offence under Section 302/34 I.P.C. It is true that this Court explained, in Yashwant & Ors. V. State of Maharashtra, (1) that the appli· cability of Section 34 I.P.C. to case depends upon the particular facts and circumstances <lf the case. Therefore, we have to scrutinize and pronounce upon the particular facts of the case before us.

We think that, upon the facts of this case, there could be reason· able doubt as to whether Section 34 l.P.C. could be applied to conrict any of the three accused persons of murder. After excluding the application of Section 34 I.P.C. to the case, the evidence does not also appear to us to prove conclusively that the appellant must have either throttled the deceased or done some other act, quite apart from the acts of his father and step-mother, which brought about the death. This result follows from the totality of evidence and the pre-~umption from the non-production of Geeta Kurmini whiclt dest-roys the value of the evidence which weighed so much with the High Court, that the appellant was doing something like pushing or taking the murdered woman inside her room at the time when she was last seen alive.The Trial Court and the High Court relying on the evidence of some bleeding of the body of the deceased, admitted by the appellant to have been carried in the car to the burning ghat, and the absence of evidence of death caused by burning, came to the con-dusion that the appellant must have throttled the deceased. This was pure conjecture after eliminating the defence case of burning by accident. If it had been case of throttling only, it would be difficult to explain the cries of murdered woman for help which were heard by wit· nesses on the road unless we assume that the murdered woman cried out, as she may have done, before the hands which choked her were placed on her throat. Therefore, although we may hold, as we do, that this must be case of murder, it is not possible for us to find con-dusively that it was case of throttling and of nothing else or that the person who could have throttled or done some other act which actually .killed the deceased was the appellant and not his father or step-mother.

So far as the case of quick disposal of the body by the appellant is concerned, the circumstancial evidence was rightly believed and held to be conclusive by both the Courts below. This evidence was too damaging to admit of any doubt that the appellant took the leading part in doing away with the remains of the body of his wife after site had been murdered. The Trial Court and the High Court, while main-taining the appellant's conviction under Section 201 Indian Penal Code, had not fixed l>is sentence. It was urged by Mr. Mulla before us that the appellant should not be given more than three years rigorous im-prisonment just as his father Jamuna had been sentenced to three years rigorous imprisonment only under Section 201 Indian Penal Code. It may be mentioned here that, while special leave to appeal was granted to the appellant against the judgment of the High Court, this Court

had refused to grant any leave to his father Jamuna to appeal against his conviction under Section 201 Indian Penal Code. We, however, think that distinction between the ease of the appellant and his father is justified on two grounds mainly; firstly, it was the duty of the appellant, as the husband, to have done something to protect his wife/even if we assume, for the sake of argument, that the actual death may have been brought about by the acts of others ; and secondly, the appli-B Iant had tal::en leading part in disposing of the murdered woman. We thinl:: that the maximum sentence which can be passed under Section 201 Indian Penal Code is deserved by the appellant upon facts and circumstances of this case. Accordingly; we allow this appeal!<> the extent that we set aside the conviction of the appellant under Section 302 I. P. C., but we maintain his conviction under Section 201 I. P. C. and sentence him to undergo seven years rigorous imprisonment and to pay fine of Rs. 1,000/- and, in default of payment offine, to undergo further rigorous imprisonment for term of six months.