PRABHUDA YAL AND OTHERS versus STATE OF MAHARASHTRA

PRABHUDA YAL AND OTHERS

ST TE OF MAHARASHTRA [KULDIP SINGH AND YOGESHWAR DAY AL, JJ.]

MAY 14,1993

Indian Penal Code 1860-Ss. 302, ./98A, 201 read wirh 3./ and S. 306 read wirh 3./-Burning of young married woman-Wherher dea1'1 by burning or "s1ra11g11/ation-Wliether suicide or lw111icide-Held,fac1s indicate homicide, and death by strangulation preceding burning.

Circwnstamiai Evidence-Held, cwnulative effecr or circwnsrances nega-tives i1111oce11ce of fa1her-in-l.aw and husband-Mother-in-law and Sisrer-in-/aw may not have participated, hence, acquiued.

Sangita was married to accused 2on 28th April, 1984. In the intervening night of 14/15 September 1984, the accused found Sangita burning. Sangita 's body suffered 100% burns and the smell of kerosene was noticed even in the spot panchnama. There had been problems relating to dowr~-, and she had complained of ill-treatment and of being beaten because of failure to pay the dowry amount. '

The trial judge acquitted accused 1-4 - her father-in-law, husband, mother-in-law_ and sister-in-law respectively.

The High Court examined the evidence afresh, while castigating the trial .Judge for having gone merely on the statement of the Public Prosecutor that only case under Ss. 306, 498-A and 34 was made out. The High Court com·icted the accused under S.302 r/w 34, S.201 r/w 34 and 498-A r/w 34.

Partly dismissing the appeal, this Court.

HELD : I. It was case of murder and not suicidal death.

It is not possible that there were no 'cries' from the deceased while she was burning. This is not possible c\'en in case of suicide.

Some of'thc symptoms ofintcrnal and external injuries arc common in

case of strangulation and hurns. But some s~·mptoms that occur in the case of strangulation, and not in case of' burns, arc present in this case.

Dr. K.S. Narayan Reddy, The fasentialv of Forensic Medicine and Toxicology 6th cdn. p. 55, relied on.

2. The prosecution rest<> it<> case only on circumstantial evidence. The1·eforc, it is necessary to examine the impelling circumstances attending the case and examine whether the cumulatil'c effect of' those circumstances negatil'cs the innocence of' the appellants and ser\·cs definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed b~· the appellants and none else.

State of U.P. "·Dr. Ravindra Praka.~h Mittal, JT (1992) 2 SC 114at121, applied.

Taylor, Medical Jurisprudence, relied on.

On an appreciation of the circumstances which arc established as being closely linked to one another, the complicity of appellant" I and 2 i<> not in doubt. But it is not necessary that appellants 3 and 4 also participated in the murder of the deceased. They arc gil'en the benefit of' doubt and according!~· acquitted.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 738 of 1992.

· From the Judgment and Order dated 16.11.1992 of the Bombay High Court in Crl. A. No. 148of1989.

A.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the Appellants.

S.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the Respondents.

The Judgment of the Court was delivered by

YOGESHWAR DAY AL, .J. This is an appeal by the fotir accused persrn1s against the judgment of the Bombay High Court dated INh November. l9'J2. Appellant No. I who was accused No. 1 was tried for the offcm:e of ha\'ing

SUPRB1E COURT REPORTS

committed the murder of his daughter-in-law Sangi ta, wife of appellant No.2 who was accused No.2, during the night between 14th September, 1984 and 15th September, 1984 at the residential house of the appellants al Murtizapur with common intention and also for having treated her with cruelly on account of dowry amount. ln the alternative the appellants were alsll charged for tile offence of having abetted the deceased Sangi ta in commission of suicide by subjecting her · to cruelty. Appellant no.3, who was accused N\J.3, is the wife of accused No. I and appellant No.4, who was accused No. 4. is their daughter. Appdlants 1 to 4 are hereinafter called accused Nos. 1 to 4.

The story of the pmsecution was as follows:-

The accused run printing press at their residence. Marriage of accused No. 2 was settled with the 5th daughter of Madan la! (PW. 8). Few days prior to the settlement of the marriage. marriage of her elder sister was also settled .. As such marriages of both the daughters Le. Sangita and Hemlata were celebrated at Paratwada on 28th April. 1984. Talk over the marriage had taken place about month prior to the marriage and the same was finalised after about 2 or 3 days of such talks. At the time of finalisation, accused No. 1 demanded Rs. 20.000 by way of hard cash as dowry, besides other articles, and he himself- had given such demands in writing vi de Ext. 73. Though agreed, Madan Lal, father of the deceased could not give Rs. 20,000 at the time of marriage. He also could not give the gold agreed, though he assured to comply with the demands later on getting the crops. After the marriage, on account of the month of Shrawan, and as per custom, Sangi ta resided with her parents. It was during her stay after the marriage that she was found disturbed and sullen. Though she herself did not give out the reason therefor, but on insistence by the father to know the reason she told him that accused No. 1 had an evil eye on her and that other members of tile family used to beat and ill treat her because of the failure on the part of Madan Lal to pay the dowry amount. Though Madan !al assured thathe would come down to Murtizapur and pursued the accused, but he could not visit Murtizapur. After .the month of .shrawan, Sangi ta returned to Murtizapur but not communication was made about her sate return by the accused persons to her father. The accused persons had telephone connection and Madan Lal (PW .8), two - three days prior to the date of the incident contacted accused No. 1 on telephone. Accused No. 1 talked angerily with Madan Lal. Madan Lal then requested accused No. 1 to call Sangita on tl' lephone. Sangi ta came on phone and in answer to his query she broke down and ,1;irtcd weeping and told Madan Lal as to why he did not send ·Ganesh Chaturthi ' !\cg·. ·Neg· means customary offer that the father of the bride has to pay on an auspicious day. It varies acC\1rding to financial capacity of the father. He told

Sangita that he had committed mistake and assured that he would be sending it immediately. On the next day he had got drawn draft of Rs. I 01/- on State Bank 1)f India. Ext. 74-A is the said draft. It was thereafter when Madan Lal was on a.visit to Amravati that Madan Lal received message about Sangi ta having got hum~ on 15thSeptemhcr, 1984.

During the night between 14th and 15th September, 1984 at about midnight the accused found Sangita not in her bed and smell of burning. They found that in the rear side open space Sangita was burning and lying down. According to the ddence the doors were closed from inside and there was n1) access to the said open space. Accused No. I informed the police about the occurrence that he had seen thrnugh the window llpening on the llpcn space. Accused No. I at about 3 .45 a.m. on 15th September, 1984 submitted report (Ext.82) to the police wherein he had stated that about 2.10 a.n1. in the night Sangi ta was found to be burnt and died in the bath-mum. PW. 9, Mundheh. the lnYestigating Officer, gave instructions to the accused persons not LO disturb the situati1ln. Initially on the report of the accused, acddental death was registcred. l'W9 when reached the spot on 15th September, 1984 at about I0.00 a.m. he made spot panchanama vide Ext.63. I-le also found postcard. half hurnt, (Ext. 62) by the side of the dead bndy. I-le thereafter drew inquest panchnama (Ext.64). PW. 5 Bhanudas acted as panch. PW.9 having con\'inced that it was case of murder, lodged report on behalf nf the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Dr. Lande, PW.3. on 15th September, 1984 at about 5.00 p.m. conducted the pllst-mortem.

The Addithmal Sessions Judge on the basis of the material liled with the challan. on 30th September. 1984 framed charge under Sectilms 302. 489-A and 201 read with Section 34 of the Indian Penal Code and thereafter recorded the e\'idence of PWs. I to 8. Thereafter hy an order dated 22nd August, 1988 the trial court framed an additional ch<u-gc for the offence punishahle under Section 306 read with Section 341)fthe Indian Penal Code. The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated. The accused persons were accordingly tried. Their defence through out was total denial.

It appears that during arguments the Prosecutor did not think it proper to press for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. According to the Prosecutorthe only case made out was forthe offences punishable under Sections 306, 498-A read with Section 34 lJfthe Indian Penal Code. The trial court emhlrsed the \'iew of the Public Prosecutor and did not

' discuss the rele\'ant e\'idence at all on the charge of Section 302 and recorded finding of acquittal in that hchalf. I le also held that the charge of Section 201 also did not survive.

The learned trial Judge also held that the pmsecution has not heen ahle 111 prove that the accused pers1ms with their c1mm10n· intention treated Sangi ta" ith cruelty or thereby abetted her to commit suicide. He accordingly acquired all the accused persons for the 11ffence punishable under Section 306 read with Section 34 of the Indian Penal Code.

The State tiled an appeal against their order of acquittal and the High C11urt on appeal ca.~tigated the trial Judge for having gone merely on the statement of the puhlic Prl1secutorwilhout applying his own mind on the evidence. The 1 ligh C1.'urt examined the evidence afresh.

The High Court p11sed question as to whether the nature of death 1 >f Sangita was suicidal or homicidal and ultimately gave finding that it was case of homicidal death and found all the four accused guilty under Sectil'n 3t >2 read with Section 34 and Secti1111 20 I read with Section 34. The accused were als11 found guilty under Sections 498-A read with Section 34. For the offence under Section 302 read with Si:ction 34 all 11f them were sentenced to rigorous imprisonmem for life and different fines. For the 1ll'fence under Section 201 read with Section 34 all Che accusecl pers(ms were sentenced to rig11rous imprisLmment for three years and each of them was tined Rs. I J>l>t >/-.For the offence under Section 498-A read with Section 34 all of them were sentenced to one year rigorous imprisonment and tine of Rs. 2,000.

Learned counsel for the defence. lwwe\'er. submitted hcforc the High< \mrr that the charge under Sccthm 302 read with Section 34 did not surviw in \'il'\V nr the concession made hy the Pmsecutor and also in view of the framing 11!' the additional charge under Section 306 read with Section 34. It was als11 suhmitted that the framing of the additional charge negated the theory of murder in pith and substance.

([[-. ]]_.

[[-. ]]_.

The High C11urt, h\l\vc\'er. negati\'ed this suhmission and onconsidcration M the evidence cun\'icted all the accused persons as stated above.

. Body ofSangita suffered 1 OO'lt· burn injuries and smell 11fkerosene was c\'cn noticed in thl' spill panchanama. The descripti1)l1 IUO'k b1:1rn does lll)t really fully

convey the condition of the body. As perthe inquest report the dead body was lying on its back in the open court-yard at the back side of the houseofthe accused. Both the legs were partly stiffen. Both the hands were partly bent and lying at side. Hairs on the head hurnt and even fleshy portion is also burnt at some pla.:es. There was slight hair at some portion M head. Complete body was burnt and skin on it also peeled up. Face had hecame red and black. Eyes were closed andhurnt. Nose was burnt and blood was cozing from the nose and mouth. Tongue was slightly protruding out.

Brassier.of the left side was totally burnt and right side.was partly burnt. Ash of burnt cloth was visihk: on stomach. partly burnt small piece of the border of saree was lying there. Some pieces of saree. burnt and sticking each other. were I ying on the stomach. Skin on palm of both hands was peeled up and wa<; appearing reddish. Skin on the complete body was burnt and peeled up. On observing the body by turning its upside down. the complete body was burnt from back side. On ohserving the private parts of the deceased through Pancha No.3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death. thedead hody was sent to the Ci vii Surgeon,Murtizapur for post-mortem. According to Dr. Lande, who conducted the post-mortem, on opening of trachea black particles were found. He recorded that probable cause of death was 100% burn with burn shock with asphysix.

On the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the ct of third person. The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was case of suicidal death. According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous. After going through the e.vidence the High Court gave the following findings:-

That the deceased could not control her emotional out-burst even during the presence of her father -in-law while talking on telephone. The deceased was young girl of 20 years. determination to suffer extreme pain in silence could not be matter of speculation. ·'[n third degree injuries, as per Dr. Lande. the victim · suffers extrt:me pain. Such injuries will make the person to give out cries and shouts for help:· The shouting and crying of the deceased was not only obvious but inevitable. Undisputedly, none had heard the cries or shouts of the deceased while she was in flames. This circumstance alone does not support the probabili!y of ~ui.cidal death.

The trial court has wrongly read t~e contents of letter Ext. 62 nd its interpretation is highly illegal.

}Jndisputedly Sangita returned from Paratwada after ·:shrawani Mass .. just week before the incident, probably by 7th September, 1984. She was subjected · to insinuation and accused used to refer her as "awara'', "loafer". "bad mash". She wanted tu convey this to her father through post card (Ext.62) which seemingly not delivered. By this letter she requested her father not to visit Murtizapur. This letter never reached post oftice and the message could not be passed to Madan Lal, PW. · 8. Before accomplishing her design to convey this message, she could not bring an end lo her life. Sangita could not simply think of committing. suicide while in possession of Ext.62.

Sangi ta al the time of incident, as per the post mortem report. was having pregnancy of 3-4 months and this is also not in tune with the act of cornmission nf suicide.

The Sessions Judge omitted to discuss the complete evidence of Dr. Lande and the post mortem report Ext.50. As per post mortem report the eye-ball and tongue of the deceased were protruding. Dozing of the hlood was found from the nose and mouth. In case of death due to burning such injuries cannot be sustained.

Sangi ta was assaulted before she was set on fire. There might be definite attempt tl) cause death by strangulation before pouring kerosene oil on her person. Relying l•f the evidence of PW. l, Stiinaj. neighbour who heard shriek of woman as resull llf str.angulation coming from the house of the accused. Taking into account the medical evidence read with the testimony of PW. I, Shivraj, Sangita met with the homicidal death.

ball or ch llh l1alfburnt was also found by the side l)f the body. The ball was used for gagging her mouth as precautionary measure to handicap her from raising cries or shlluts. PW5, Bhanudas, had also noticed dragging marks in the court-yard and the dcce;ised after assault was dragged and kept at the spot.

While in names Sangi ta did not make any movement. She was completely motionless.

The latching of doors of the compound was .not accepted as an act of the deceased. Latching of doors and pouring of kerosene after assault was farcical Yenture skilfully and conveniently made to bring colour of suicide to the incident.

The High Court then posed the question as to who is responsible fi)r homicidal death of Sangi ta. It was held that it coukl not be an act of an indi\'idual. It was jvint venture. There is no direct evidence. l Jndisputedly the payment of Rs. 20,000/- was not made nor the other items mentioned in Ext. 73 were given till the date of incident. On her second visit. the deceased had disclosed to her father, Madan Lal, that the members of in-laws' family had beaten and ill-treated her for the reason of non-fulfillment uf dowry and other articles. reading of the letter n indicates that the accused persons had very seriuus grkrnnce against Sangi ta and her parents for non fulfillment of dowry demands.

Recovery of handkerchief at the instance of accused No. l in pursuance of disclosure statement and the seizure thereof vide Ext.69 from drawer of the table of the office. The handkerchief was smelling kerosene oil. It was concealed at place whkh was not normally nrnrdinarily used for keeping the handkerchief.

This handkerchief was used at the time of the incident.

None of the accused persnns made any attempt to reach the spot c\'en though they noticed the death of Sangita. They merely allowed the body tu be burnt. Accused persons had quoted exact time of death in Ext.82 which means that they were mentally alert and conscious of the happening in the house.

The refusal to disclose the death of Sangi ta to the chowkidar of the locality, PW.2, 13ahadursingh. The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure.

Homicidal death occurred by Sangila while she was in their custody. The incident with its gra\'ity and extent.cannot in any manner go unnoticed. As such the accused persons were duty hound to offer plausible explanation. Their action was concerted, well thought out well planned.

\Vi th the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court.

This court on application of appellant Nos. 3 and 4 i.e. mother-in-law and sister-in-law of the deceased. admitted them to be on bail.

Apart from the inferences noticed by the High Court there are certain other features in the post mortem replm Ext. 15 which may also be noticed at this stage. It is stated in paragraph 13 of the post mortem report that the whole of skin nf face

was burnt and C\l\"Cred at places with black soot. Eye ball slightly protruding. Tongue was protruding from mouth. Blood stained discharge from nose and mouth. In paragraph 17 it is noticed heirs of the scalp, eye lashes, both ears, eyes, whole neck. whole chest, whole abdomen suffer from bums. Buttock and pubic hairs also hurnt. Black soot was present over burnt area of face. chest, abdomen. In paragraph 19 it is stated Brain & Meninges congested. In paragraph 20 it is stated Larynx, Trachea anc.I Bronchi-congested, on opening troches. black par-ticles seen inside human. Right lung, left lung-congested. Right remricle of the heai·r was.fit!/ whereas left was empty. In paragraph 21 il is stated liver and gall bladder-congested. pancreas anc.I suprarenals - congested, spleen - congested. kic.lneys-ci>ngestec.I and bladder-empty, i.e. parenchymatous organs show intense venous congestion.

Dr. K.S. Narayan Reddy, M.D., D.C.P., M.l.A.F.M., F.I.M.S.A., F.A.F.Sc .. Professor of Forensic Medicine. Os mania Medical College, Hyderabad in his well known treatise THE ESSENTIALS OF FORENSIC MEDICINE AND TOXI-COLOGY. Sixth Ec.lithm at page 255 gives descriptions of internal as well as ex1ernal sympt1Jms or manual strangulation. At page 255 while dealing with signs 1)f asphyxia. the learned author observes : "The face may be livid, hh1tchy and swullen. the l.!yes wide open, bulging and suffused, the pupils dialatec.I, the tongue sw\lllen, dark-cloured and protruded. Petechial hemorrhages are common into the skiQ of the eyelids. face. forehead, behind the ears and scalp. Bloody froth may \.!scape from the mouth and nostrils and there may be bleeding from the nose and 1:ars. The hands arc usually clenched. The genital organs may be co~gested and there may be discharge of urine, faeces and seminal fluid ... While internal injuries dl.!scrihed little later included as under:-

"The larynx. trachea and bronchi are congested and cont<iin frothy, often blood stained mucus. The lungs arl! markedly congested and sh11w ecchymoses and. larger subaerial hemorrhages. Dark fluid blood exudl.!s owsection. Silvery-looking spots und1:r the pleural surriice c.lue to rupture of the air cells which disappear on pricking. arl.! seen in more than 50% cases. The parenchymatous organs show intense venous congestion. and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is congested and shows petechial hemorrhages. The. right side of the heart is full of dark fluid blood and the ldt empty. Both the cavities are full if the heart stopped during diastole.'"

Whereas in burn injuries. the learned a~thor at pages 237-238 observes. "the , , fl,,

hrain is usually shrunken, lirm anu yellow to light brown due tll cooking. The dura matter is leathery ... (dura mauer is meninges oithe brain). If the death has occurred from suffucation. aspirated blackish Cl.Jal particles are seen in the nose. •i:iouth and whole of the respiratory 'track. Their presence is proof that the victim was alive \vhen the tire occum.:d. The pleurae are congested or inflamed. The lungs are usually rnngested, 111ay he strunken and rarely anemic ...... Visceral congestion is marked in many cases ...... The heart is usually filled with cllmcd blood. The adarnels (glanus above kidneys) may he enlarged and cnngcsted.

Some of these symptoms or internal and external injuries arc common in case of strangulation and burn like face is swollen and distort el!. the tongue protruded. the lungs arc usually congested, visceral congestions is marked in many cases.

What is to he noticed in the present case is that there arc hardly '"any cries'" as per the defence also by the deceased. This is not possible even in case of suicide. Even if the burns arc inllicted with suicidal intent the victim is bnund to cry lrnt of pain. Admittedly there was nl1 cries and. therefore. it was npt case of sukidal burn but the deceased was put in condition where she could not cry and yet get burnt by third party.

As is clear from the aforesaid commentary of Dr. K.S. Narayan Reddy that if it was case of merely hums the blood nfthe heart w@ld have got clotted. Even the post-mortem report does not say that asphysix was due to burn. Coupled with all the internal injuries which occur in the case or strangulation. are present in this case.

As pointed out by the High Cnurt there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only l1n circumstantial evi<lcnce. There is series of decisions of this Court pnipounding the cardinal principles to be followed in cases in which the evidence is l)f circumstantial nature. It is not necessary to rcpapitulate all those decisions except stating the essential ingredients as noticed by Pandian, J. in the case reported as The State l!f Uuar Pradesh v. Dr. Ravinclra f'rakas'1 Milltil. JT ( 1992) 2 SC I J 4 at 121, to pro Ye quilt l)f an accused person by cirl.'.umstantial eviuencc. They are:-

""(I) The circumstance from which the conclusion is drawn should be fully pmved ;

• (2) lhe circumstances should be Clmclusivc in nature;

U · Now let us examine the impelling circumstances attending the case and examine whether the cumulati\'e effect of those circumstances negati\'es the innocence of the appellants and ser\'es definite pointer t11wards their guilt and unerringly leads to the conclusion that with all human prohability the offence was committed hy the appellants and none else.

There is no douht that when the incident 11ccurred there was n11 outsider in the hlJuse. The circumstances which are estahlished as ha,·ing closely linked up with one another may he noticed :

drenched as surt of bath with kerosent!.

9) Total absence uf any shout or cries except one which was heard by way llf strangulation by PW. I. I 0) Bl11od in heart was 11l)t found clotted. Right \·en-triclc heart was full of blnod but left ventricle was empty.

11) Besides total hurning. of neck was to destroy e\'idence of attempted strangulation. 12) In hum brain is usually shrunken and firm whereas in strangulation it is congested.

As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical J11rispru:lence is quoted below. It reads thus:

·'Not uncommonly the victim who inhales smoke alsu vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regurgitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs."

B~ the lime person could take bath of kerosene she is likely to get fainted and would not be in position thereafter to burn herself. total t>urning of the race and the neck.shows that even at portions wht.!rc she was not wearing. any clothes wecc not burnt. It could only be possible if she had poured kerosene on her head and face also.

It is not understood as to how the unposted .post card found near the dead body was not burnt when the whole body had got burnt. It in fact indicates that the planting of the post card was to show that it was case of suicidal death.

In passes all human probabilities that the appellants have satisfied them-selves by watching through the window the burning of daughter-in-law without any due and cry or without and serious attempt to save her.

We are thus satisfied that it was case of murder and not suicidal death. Sn far as the accomplicity of appellants I and 2 are concerned, there is no doubt. But

SUPRE\IE COURT REPORTS

it is not necessary if appellant Nl)S. 3-4 i.e. mother-in-law and sistcr-in-law of the deceased have also participated in the murder of the deceased.

For the aforesaid reasons we dismiss the appeal on hchalf l'f appellant- Nos. I and 2 but givt: henelit of dllubt to appellant Nos. 3 and 4 arid accept thc appcal on their behalt. They arc accordingly acquitted. The con\'ictions and sentenci:s of )J appellant Nos. l and 2 are upheld.

Appeal dismissed.